[Federal Register Volume 75, Number 62 (Thursday, April 1, 2010)]
[Proposed Rules]
[Pages 16388-16391]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-7319]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2009-1014-201002; FRL-9133-1]
Approval and Promulgation of Implementation Plans; Commonwealth
of Kentucky: Prevention of Significant Deterioration and Nonattainment
New Source Review Rules: Nitrogen Oxide as Precursor to Ozone
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to approve a revision to Kentucky's State
Implementation Plan (SIP), submitted by the Kentucky Energy and
Environment Cabinet, through the Kentucky Division of Air Quality
(KDAQ) to EPA on February 5, 2010. The proposed revision modifies
Kentucky's prevention of significant deterioration (PSD) and
nonattainment new source review (NNSR) permitting regulations in the
SIP to address permit requirements promulgated in the 1997 8-Hour Ozone
National Ambient Air Quality Standards (NAAQS) Implementation Rule--
Phase 2 (hereafter referred to as the ``Ozone Implementation NSR
Update''). The Ozone Implementation NSR Update revised permit
requirements relating to the implementation of the 1997 8-hour ozone
NAAQS specifically incorporating nitrogen oxides (NOX) as a
precursor to ozone. The proposed revision also includes provisions
addressing permit requirements promulgated by EPA on May 1, 2007, which
exclude from the NSR major source permitting requirements ``chemical
process plants'' that produce ethanol through a natural fermentation
process (hereafter referred to as the ``Ethanol Rule''.)
DATES: Comments must be received on or before May 3, 2010.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2009-1014, 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-2009-1014, 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.
[[Page 16389]]
5. Hand Delivery or Courier: Ms. 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-
2009-1014.'' 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 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: For information regarding the Kentucky
SIP, contact Ms. Twunjala Bradley, 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. Telephone number: (404) 562-9352; e-mail
address: [email protected]. For information regarding NSR,
contact Ms. Yolanda Adams, Air Permits Section, at the same address
above. Telephone number: (404) 562-9214; e-mail address:
[email protected]. For information regarding 8-hour ozone NAAQS,
contact Ms. Jane Spann, Regulatory Development Section, at the same
address above. Telephone number: (404) 562-9029; e-mail address:
[email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. What Action Is EPA Proposing Today?
II. What Is the Background for the Action That EPA Is Proposing To
Take Today?
III. What Is EPA's Analysis of Kentucky's SIP Revision?
IV. Proposed Action
V. Statutory and Executive Order Reviews
I. What Action Is EPA Proposing Today?
The Commonwealth of Kentucky, through KDAQ, submitted a revision on
February 5, 2010, to the Kentucky SIP which relates to Kentucky's Air
Quality Regulations, Chapter 51--401 KAR 51:001 ``Definitions for 401
KAR Chapter 51,'' 401 KAR 51:017 ``Prevention of Significant
Deterioration of Air Quality,'' and 401 KAR 51:052 ``Review of New
Sources in or Impacting upon Nonattainment Areas.'' The SIP revision
addresses the Ozone Implementation NSR Update requirements for Kentucky
to include NOX as an ozone precursor for permitting
purposes. Specifically, the Ozone Implementation NSR Update
requirements included changes to major source thresholds for sources in
certain classes of nonattainment areas, changes to offset ratios for
marginal, moderate, serious, severe, and extreme ozone nonattainment
areas, provisions addressing offset requirements for facilities that
shut down or curtail operation, and a requirement stating that
NOX emissions are ozone precursors. The proposed revision
also includes provisions for excluding ``chemical process plants'' that
produce ethanol through a natural fermentation process from the NSR
major source permitting requirements. Pursuant to section 110 of the
Clean Air Act (CAA or Act), EPA is proposing to approve these revisions
into the Kentucky SIP.
Additionally, the rule revision provided in Kentucky's February 5,
2010, submittal updates Kentucky's PSD and NSR permitting regulations
to make them consistent with changes to the Federal regulations by
removing the existing standards and requirements for clean units (CU)
and pollution control projects (PCP). However, EPA is not taking action
on the Kentucky rule updates regarding CU and PCP because these
portions of Kentucky's rule are specifically not approved into
Kentucky's federally-approved SIP.
II. What Is the Background for the Action That EPA Is Proposing To Take
Today?
On July 18, 1997, EPA promulgated a revised 8-hour ozone NAAQS of
0.08 parts per million--also referred to as the 1997 8-hour ozone
NAAQS. On April 30, 2004, EPA designated areas as attainment,
nonattainment and unclassifiable for the 1997 8-hour ozone NAAQS. As
part of the 2004 designations, EPA also promulgated an implementation
rule for the 1997 8-hour ozone NAAQS in two phases. Phase 1 of EPA's
1997 8-hour ozone implementation rule (Phase 1 Rule), published on
April 30, 2004, effective on June 15, 2004, provided the implementation
requirements for designating areas under subpart 1 and subpart 2 of the
CAA (69 FR 23857).
On November 29, 2005, EPA promulgated the second phase for
implementation provisions related to the 1997 8-hour ozone standards--
also known as the Phase 2 Rule (70 FR 71612). The Phase 2 Rule
addressed control and planning requirements as they applied to areas
designated nonattainment for the 1997 8-hour ozone NAAQS such as
reasonably available control technology, reasonably available control
measures, reasonable further progress, modeling and attainment
demonstrations and NSR, and the impact to reformulated gas for
[[Page 16390]]
the 1997 8-hour ozone NAAQS transition. Specific to this rulemaking,
the Phase 2 Rule made changes to Federal regulations 40 CFR 51.165 and
51.166, which govern the NNSR and PSD permitting programs. Pursuant to
these changes, states were required to submit SIP revisions
incorporating NOX as an ozone precursor by no later than
June 15, 2007. Kentucky's February 5, 2010, SIP submission (the subject
of this action) addresses the state requirement to adopt provisions to
include NOX as a precursor for ozone for PSD and NNSR
permitting purposes.
In addition, on May 1, 2007, EPA promulgated revisions to the PSD
and NNSR regulations to address applicability of permitting
requirements for ``chemical process plants'' (72 FR 24059). The
revisions to 40 CFR 51.165, 51.166, 52.21, and Appendix S, define
``chemical process plants'' under the regulatory definition of ``major
stationary source'' to exclude ethanol manufacturing facilities that
produce ethanol by natural fermentation processes. Kentucky's February
5, 2010, SIP submission addresses these minimum program elements of the
PSD and NNSR programs for ``chemical processing plants.''
III. What Is EPA's Analysis of Kentucky's SIP Revision?
On February 5, 2010, the Commonwealth of Kentucky submitted a
revision to EPA for approval which revised the Commonwealth's
permitting provisions to adopt EPA's Federal regulations specified in
the Ozone Implementation NSR Update relating to the incorporation of
NOX as an ozone precursor and to address permitting
requirements specified in EPA's Ethanol Rule. Specifically, the
revision relates to Kentucky's Air Quality Regulations, Chapter 51--401
KAR 51:001 ``Definitions for 401 KAR Chapter 51,'' 401 KAR 51:017
``Prevention of Significant Deterioration of Air Quality,'' and 401 KAR
51:052 ``Review of New Sources in or Impacting upon Nonattainment
Areas.'' The revision became state-effective on February 5, 2010. The
submittal revised Kentucky's PSD and NNSR permit programs to make them
consistent with changes to the Federal regulations set forth in the
Ozone Implementation NSR Update. These changes include changes to major
source thresholds for sources in certain classes of nonattainment
areas, changes to offset ratios for marginal, moderate, serious,
severe, and extreme ozone nonattainment areas, provisions addressing
offset requirements for facilities that shut down or curtail operation,
and a requirement stating that NOX emissions are ozone
precursors. In addition, the submittal revised Kentucky's PSD and NNSR
permit programs to make them consistent with changes to the Federal
regulations set forth in EPA's Ethanol Rule. These changes include
changes to the regulatory definition of ``major stationary source'' to
exclude ethanol manufacturing facilities that produce ethanol by
natural fermentation processes. These changes affect both the
applicability threshold and whether this industry must count fugitive
emissions in determining its major source status.
The revision included in Kentucky's PSD and NNSR programs are
substantively the same as the Ozone Implementation NSR Update and the
Ethanol Rule. The Kentucky rules have been formatted to conform to
Kentucky rule drafting standards (KRS Chapter 13A), but in substantive
content the rules are the same as the Federal rules. As part of its
review of the Kentucky submittal, EPA performed a line-by-line review
of the proposed revisions and has determined that they are consistent
with the permit program requirements for NSR, set forth at 40 CFR
51.165 and 51.166.
Kentucky's February 5, 2010, SIP submission providing the PSD and
NNSR rule revisions also includes the removal of provisions that were
vacated by the United States Court of Appeals for the District of
Columbia Circuit.\1\ Since EPA did not take action on Kentucky's SIP
with regard to the vacated portions (i.e., these provisions were not
incorporated into the federally-approved SIP), EPA is not taking action
through this rulemaking on the removal of these provisions as provided
in Kentucky's February 5, 2010, submittal.
---------------------------------------------------------------------------
\1\ On December 31, 2002 (67 FR 80186), EPA published final rule
changes to 40 CFR parts 51 and 52, regarding the CAA's PSD and NNSR
programs. On November 7, 2003 (68 FR 63021), EPA published a notice
of final action on the reconsideration of the December 31, 2002,
final rule changes. The December 31, 2002, and the November 7, 2003,
final actions are collectively referred to as the ``2002 NSR Reform
Rules.'' On June 24, 2005, the United States Court of Appeals for
the DC Circuit Court vacated portions of the 2002 NSR Reform Rules
pertaining to CU and PCP.
---------------------------------------------------------------------------
IV. Proposed Action
Pursuant to section 110 of the CAA, EPA is proposing to approve
Kentucky's SIP revision, submitted February 5, 2010, which incorporates
NOX as an ozone precursor for permitting purposes into the
Kentucky SIP, and addresses major source applicability for ethanol
manufacturing facilities. EPA is proposing to approve these revisions
because they are consistent with the CAA, and EPA regulation and
policy.
V. 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, 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.
[[Page 16391]]
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen oxide, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: March 17, 2010.
Beverly H. Banister,
Acting Regional Administrator, Region 4.
[FR Doc. 2010-7319 Filed 3-31-10; 8:45 am]
BILLING CODE 6560-50-P