[Federal Register Volume 74, Number 102 (Friday, May 29, 2009)]
[Proposed Rules]
[Pages 25686-25689]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-12557]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2005-KY-0003-200616; FRL-8911-3]
Approval and Promulgation of Implementation Plans; Kentucky;
NOX SIP Call Phase II
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to approve the State Implementation Plan
(SIP) revisions submitted by the Commonwealth of Kentucky on September
12, 2005, and March 24, 2006. The first revision provides Kentucky's
response to EPA's regulations entitled, ``Finding of Significant
Contribution and Rulemaking for Certain States in Ozone Transport
Assessment Group Region for Purposes of Reducing Regional Transport of
Ozone,'' otherwise known as the ``Nitrogen Oxides (NOX) SIP
Call Phase I.'' The second revision responds to EPA's regulations
entitled, ``Interstate Ozone Transport: Response to Court Decisions on
the NOX SIP Call, NOX SIP Call Technical
Amendments, and Section 126 Rules,'' otherwise known as the ``
NOX SIP Call Phase II.'' The NOX SIP Call Phase
II revision satisfies EPA's rule that requires Kentucky to submit Phase
II revisions necessary to achieve applicable, incremental reductions of
NOX. The intended effect of the Phase II SIP revision is to
reduce emissions of NOX originating in the Commonwealth of
Kentucky to help attain and maintain the national ambient air quality
standard for ozone. The March 24, 2006, final submittal stopped the
federal implementation plan clock that started on February 8, 2006,
when EPA made a finding that Kentucky failed to submit the required SIP
for Phase II of the NOX SIP Call by April 1, 2005.
DATES: Comments must be received on or before June 29, 2009.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2005-KY-0003, by one of the following methods:
1. http://www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. E-mail: [email protected].
3. Fax: 404-562-9019.
4. Mail: EPA-R04-OAR-2005-KY-0003, Regulatory Development Section,
Air Planning Branch, Air, Pesticides and Toxics Management Division,
U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW.,
Atlanta, Georgia 30303-8960.
5. Hand Delivery or Courier: Lynorae Benjamin, Chief, Regulatory
Development Section, Air Planning Branch, Air, Pesticides and Toxics
Management Division, U.S. Environmental Protection Agency, Region 4, 61
Forsyth Street, SW., Atlanta, Georgia 30303-8960. Such deliveries are
only accepted during the Regional Office's normal hours of operation.
The Regional Office's official hours of business are Monday through
Friday, 8:30 to 4:30, excluding federal holidays.
Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-
2005-KY-0003. EPA's policy is that all comments received will be
included in the public docket without change and may be made available
Online at http://www.regulations.gov, including any personal
information provided, unless the comment includes information claimed
to be Confidential Business Information (CBI) or other information
whose disclosure is restricted by statute. Do not submit through http://www.regulations.gov or e-mail, information that you consider to be CBI
or otherwise protected. The http://www.regulations.gov Web site is an
``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the electronic docket are listed in the
http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in http://www.regulations.gov or in hard copy at the Regulatory Development
Section, Air Planning Branch, Air, Pesticides and Toxics Management
Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth
Street, SW., Atlanta, Georgia 30303-8960. EPA
[[Page 25687]]
requests that if at all possible, you contact the person listed in the
FOR FURTHER INFORMATION CONTACT section to schedule your inspection.
The Regional Office's official hours of business are Monday through
Friday, 8:30 to 4:30, excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT: Nacosta C. Ward, Regulatory
Development Section, Air Planning Branch, Air, Pesticides and Toxics
Management Division, U.S. Environmental Protection Agency, Region 4, 61
Forsyth Street, SW., Atlanta, Georgia 30303-8960. The telephone number
is (404) 562-9140. Ms. Ward can also be reached via electronic mail at
[email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Analysis of State's Submittal
III. Proposed Action
IV. Statutory and Executive Order Reviews
I. Background
On October 27, 1998, EPA published a final rule known as the
``NOX SIP Call'' (63 FR 57356), and later known as the
``NOX SIP Call Phase I.'' The NOX SIP Call Phase
I required 22 states, including the Commonwealth of Kentucky, to meet
NOX emission budgets during the ozone season (March through
September) to reduce the amount of ground level ozone that is
transported across the eastern United States. EPA identified
NOX emission reductions by source category when they could
be achieved by using cost-effective measures. These source categories
include electric generating units (EGUs), non-EGUs, internal combustion
engines (ICEs) and cement kilns. For each affected jurisdiction, EPA
determined NOX emission budgets based on the implementation
of cost effective controls. The budgets were to be met by the year
2007. Phase I of the NOX SIP Call gave states the
flexibility to decide which source categories to regulate to meet its
statewide budget. During Phase I, Kentucky regulated EGUs, non-EGUs and
cement kilns, but chose not to address ICEs. See, 67 FR 17624, 17625
(April 11, 2002) (Approval and Promulgation of Implementation Plans:
Kentucky: Nitrogen Oxides Budget and Allowance Trading Program).
A number of parties, including certain states as well as industry
and labor groups, challenged Phase I of the NOX SIP Call
rule. On March 2, 2000, EPA published additional technical amendments
to the NOX SIP Call in the Federal Register (64 FR 26298 and
65 FR 11222, respectively). On March 3, 2000, the United States Court
of Appeals for the District of Columbia Circuit Court (D.C. Circuit
Court) issued its decision on the NOX SIP Call, ruling in
favor of EPA on all the major issues. Michigan v. EPA, 213 F.3d 663
(D.C. Cir. 2000). However, the D.C. Circuit Court remanded four
specific elements to EPA for further action: The definition of EGU; the
level of control for stationary internal combustion engines; the
geographic extent of the NOX SIP Call for Georgia and
Missouri; and the inclusion of Wisconsin. On January 31, 2002, the
Kentucky Environmental and Public Protection Cabinet (KEPPC) submitted
final revisions to its SIP that complied with the requirements of Phase
I of the NOX SIP Call. EPA approved the revisions on April
11, 2002, 67 FR 17624, which became effective on June 10, 2002.
On April 21, 2004, EPA published a final rule, addressing the
remanded portion of the NOX SIP Call Rule. This rule is
entitled, ``Interstate Ozone Transport: Response to Court Decisions on
the NOX SIP Call, NOX SIP Call Technical
Amendments, and Section 126 Rules,'' and is otherwise known as the
``NOX SIP Rule Phase II'' (69 FR 21604). The action
promulgated specific changes in response to the Court's ruling on Phase
I of the Rule. Specifically, it finalized certain aspects of the
definitions of EGU and non-EGU, and the control level assumed for large
stationary ICEs. For large, natural gas fired, stationary ICEs the
control level was set at 82 percent, because the vast majority of large
natural gas-fired ICEs are lean burn. For diesel and dual fuel
stationary ICEs the control level was set at 90 percent since on
average they are rich burn, diesel and dual fuel ICEs. The April 21,
2004, rule also finalized partial state budgets for Georgia, Missouri,
Alabama, and Michigan, changes to statewide NOX budgets, the
SIP submittal dates for the required states to address the Phase II
portion of the budget, the SIP submittal dates for Georgia and
Missouri, the compliance date for all covered sources, and the
exclusion of Wisconsin from the NOX SIP Call (69 FR 21604,
April 21, 2004). The final rule also required states that submitted
NOX SIP Call Phase I revisions, to submit by April 1, 2005,
Phase II SIP revisions as needed to achieve the necessary incremental
reductions of NOX. Phase II requires emissions reductions
that are relatively small, representing less than 10 percent of the
total reductions required by Phase I of the NOX SIP Call.
Phase II of the NOX SIP Call required Kentucky to reduce
the Phase I NOX emissions originating in the Commonwealth
from 165,075 tons (Phase I budget) to 162,519 tons (Phase II budget) of
NOX emissions. (69 FR 21604, 2162, April 21, 2004). This
represents a 4,224 ton reduction of NOX emissions in
Kentucky. The budget numbers for Phase II for each affected state were
based on the Phase I emission inventory as revised in the ``Technical
Amendment to the Finding of Significant Contribution and Rulemaking for
Certain States for Purposes of Reducing Regional Transport of Ozone,''
which was published on March 2, 2000. However, EPA approved a revised
Phase I Budget for Kentucky in a revision to the NOX SIP
Call submitted on April 11, 2002 (67 FR 17624). Therefore, the final
Kentucky Phase II Budget in the April 21, 2004, notice is inaccurate
because it is based on the previous Phase I Budget.
On January 23, 2004, EPA wrote a letter to KEPPC clarifying that
based on current rules and regulations, including 63 FR 57356, 57416
(October 27, 1998), and 40 CFR 96.2, EPA was allowing each state with
one or more carbon monoxide (CO) boiler combusting CO from fluidized
catalytic cracking units (FCCUs) to determine whether all of the
Commonwealth's FCCU-CO boilers were covered by the NOX SIP
Call trading program. There is currently only one facility in Kentucky
with FCCU-CO boilers (the Ashland Oil facility, located in Ashland,
Kentucky). Kentucky elected to exclude all FCCU-CO boilers in the
Commonwealth from the NOX trading program. Today's action
removes the requirement from the Kentucky SIP that such units comply
with the NOX SIP Call Phase I by exempting them from the
non-EGU portion of the Kentucky NOX budget. However,
Kentucky is still able to meet the phase II budgets through other
reductions. For more information regarding the specifics of Phase I
source categories and budgets, see 67 FR 17624 (April 11, 2002).
Kentucky is achieving the Phase II goal by setting the control
level for large, stationary ICEs at 82 percent, and for diesel and dual
fuel stationary ICEs at 90 percent. The application of control levels
to ICEs represents a reduction in NOX emissions originating
in Kentucky. Therefore, the large stationary ICE portion of Kentucky's
non-EGU NOX trading budget is being reduced by 2,491 tons of
NOX emissions.
On September 12, 2005, the KEPPC submitted a draft of its SIP
regulation revisions, intended to meet the requirements of the
NOX SIP Call Phase II. A public hearing was conducted on
October 21, 2005. On March 24, 2006,
[[Page 25688]]
SIP revisions were submitted in their final form. The March 24, 2006,
submittal stopped the federal implementation plan clock that started
under the Clean Air Act (CAA) following EPA's February 8, 2006, finding
that Kentucky failed to submit the required SIP revisions for Phase II
of the NOX SIP Call by April 1, 2005 (71 FR 6347, February
8, 2006).
II. Analysis of State Submittal
The September 12, 2005, and March 24, 2006, proposed revisions to
the Kentucky SIP include changes to regulation 401 KAR 51:150, which
are consistent with EPA requirements for Phase II of the NOX
SIP Call. In addition, the proposed revisions included a change to
regulation 401 KAR 51:160, which is consistent with EPA requirements
for Phase I of the NOX SIP Call. The Phase II revisions
require the Cabinet to set NOX emission levels for large
stationary ICEs, including large utility and industrial boilers (i.e.,
engines emitting more than one ton of NOX per average ozone
season day in 1997), except FCCU-CO boilers, at 82 percent. The
combination of the Kentucky regulations addressing NOX
emissions from large utility and industrial boilers, cement kilns and
ICEs achieve all the necessary NOX reductions required to
meet NOX Phase II requirements for Kentucky. In light of
these reductions, the projected 2007 control period NOX
emissions for the various categories are as follows in tons per year:
Total EGU NOX Budget--36,504.
Total Non-EGU NOX--Budget 26,259.
Total NOX Budget for Stationary Area Sources--
31,807.
Total NOX Budget for Nonroad Mobile Sources--
15,025.
Total NOX Budget for Highway Mobile Sources--
53,268.\1\
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\1\ This NOX Budget is not intended for the purposes
of implementing transportation conformity requirements. Refer to the
attainment demonstration, maintenance plan or reasonable further
progress plan for the particular nonattainment and/or maintenance
area(s) for the appropriate motor vehicle emissions budget for an
area for transportation conformity purposes.
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Total NOX Budget for Kentucky--162,863.
The revised non-EGU NOX budget was 28,750 tons in the
January 31, 2002, SIP revision and revised to 26,259 tons in the
September 2005 SIP Revision. The large boilers/turbines were reduced
from 179 to 64 NOX ozone season tons due to FCCU-CO boilers
being exempted from that category. The large cement kilns remained the
same at 1,091 NOX ozone season tons. The large ICEs went
from 3,083 to 577 NOX ozone season tons by applying the
appropriate Phase II reductions. Small and other sources increased from
24,397 to 24,527 tons due to moving Ashland Oil from the large boilers/
turbines to this portion of the non-EGU budget. Additionally, there was
an error in Kentucky's original inventory for units at the Texas Gas-
Jeffersontown facility, resulting in eight more units than initially
included in the small/other sources budget. The chart below summarizes
the budgets:
Summary of Non-EGU NOX Emissions Budget
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January 31, 2002 March 24, 2006
NOX SIP Call SIP NOX SIP Call SIP
Portion of the non-EGU NOX revision revision
emissions budget submittal (NOX submittal (NOX
ozone season ozone season
tons) tons)
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Large Boilers/Turbines*........... 179 64
Large Cement Kilns................ 1091 1091
Large ICEs........................ 3083 577
Small/Other Sources............... 24,397 24,527
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Total Non-EGU Emissions....... 28,750 26,259
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* Non-EGU budget that is part of the NOX SIP Call cap and trade program.
III. Proposed Action
EPA is proposing to approve the aforementioned changes to the SIP,
including Kentucky's NOX SIP Call Phase II budget. This SIP
revision is consistent with section 110 of the CAA.
IV. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
proposed action merely approves State law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by State law. For that reason, this proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249,
[[Page 25689]]
November 9, 2000), because the SIP is not approved to apply in Indian
country located in the state, and EPA notes that it will not impose
substantial direct costs on tribal governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Incorporation by reference, Air pollution
control, Carbon monoxide, Intergovernmental relations, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 18, 2009.
Beverly H. Banister,
Acting Regional Administrator, Region 4.
[FR Doc. E9-12557 Filed 5-28-09; 8:45 am]
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