Proposed Rule2024-01029
Air Plan Approval; KY; 2015 8-Hour Ozone Nonattainment New Source Review Permit Program Requirements and Rule Revision for Jefferson County
Primary source
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Published
January 19, 2024
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is proposing to approve a revision to the Jefferson County portion of the Kentucky State Implementation Plan (SIP) submitted by the Commonwealth of Kentucky through the Kentucky Energy and Environment Cabinet (Cabinet) on June 13, 2022. The changes were submitted by the Cabinet on behalf of the Louisville Metro Air Pollution Control District (District, also referred to herein as Jefferson County). EPA is proposing to approve changes to the District's rules on the construction or modification of major stationary sources that are located within nonattainment areas or that have emissions impacting nonattainment areas. EPA also is proposing to approve the certification submitted by Kentucky on behalf of the District that the new version of the Nonattainment New Source Review (NNSR) permitting regulations proposed for incorporation into the Jefferson County portion of the Kentucky SIP meets the NNSR nonattainment planning requirements for the 2015 8-hour ozone National Ambient Air Quality Standards (NAAQS). The certification covers the Jefferson County portion of the Louisville, Kentucky-Indiana multi- state nonattainment area for the 2015 8-hour ozone NAAQS. This action is proposed pursuant to the Clean Air Act (CAA or Act) and its implementing regulations.
Full Text
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<title>Federal Register, Volume 89 Issue 13 (Friday, January 19, 2024)</title>
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[Federal Register Volume 89, Number 13 (Friday, January 19, 2024)]
[Proposed Rules]
[Pages 3613-3619]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-01029]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2021-0691; FRL-11644-01-R4]
Air Plan Approval; KY; 2015 8-Hour Ozone Nonattainment New Source
Review Permit Program Requirements and Rule Revision for Jefferson
County
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve a revision to the Jefferson County portion of the Kentucky
State Implementation Plan (SIP) submitted by the Commonwealth of
Kentucky through the Kentucky Energy and Environment Cabinet (Cabinet)
on June 13, 2022. The changes were submitted by the Cabinet on behalf
of the Louisville Metro Air Pollution Control District (District, also
referred to herein as Jefferson County). EPA is proposing to approve
changes to the District's rules on the construction or modification of
major stationary sources that are located within nonattainment areas or
that have emissions impacting nonattainment areas. EPA also is
proposing to approve the certification submitted by Kentucky on behalf
of the District that the new version of the Nonattainment New Source
Review (NNSR) permitting regulations proposed for incorporation into
the Jefferson County portion of the Kentucky SIP meets the NNSR
nonattainment planning requirements for the 2015 8-hour ozone National
Ambient Air Quality Standards (NAAQS). The certification covers the
Jefferson County portion of the Louisville, Kentucky-Indiana multi-
state nonattainment area for the 2015 8-hour ozone NAAQS. This action
is proposed pursuant to the Clean Air Act (CAA or Act) and its
implementing regulations.
DATES: Comments must be received on or before February 20, 2024.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2021-0691 at <a href="http://www.regulations.gov">www.regulations.gov</a>. Follow the online instructions
for submitting comments. Once submitted, comments cannot be edited or
removed from <a href="http://Regulations.gov">Regulations.gov</a>. EPA may publish any comment received to
its public docket. Do not submit electronically any information you
consider to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (audio, video,
[[Page 3614]]
etc.) must be accompanied by a written comment. The written comment is
considered the official comment and should include discussion of all
points you wish to make. EPA will generally not consider comments or
comment contents located outside of the primary submission (i.e., on
the web, cloud, or other file sharing system). For additional
submission methods, the full EPA public comment policy, information
about CBI or multimedia submissions, and general guidance on making
effective comments, please visit <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>.
FOR FURTHER INFORMATION CONTACT: Pearlene Williams-Miles, Multi-Air
Pollutant Coordination Section, Air Planning and Implementation Branch,
Air and Radiation Division, U.S. Environmental Protection Agency,
Region 4, 61 Forsyth Street SW, Atlanta, GA 30303-8960. The telephone
number is (404) 562-9144. Ms. Williams-Miles can also be reached via
electronic mail at <a href="/cdn-cgi/l/email-protection#22754b4e4e4b434f516f4b4e47510c724743504e474c47624752430c454d54"><span class="__cf_email__" data-cfemail="2b7c424747424a46586642474e58057b4e4a59474e454e6b4e5b4a054c445d">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
The New Source Review (NSR) program is a preconstruction permitting
program that requires certain stationary sources of air pollution to
obtain permits prior to beginning construction.\1\ The NSR permitting
program applies to new construction and to the modification of existing
sources. New construction and source modifications that cause emissions
of ``regulated NSR pollutants'' over certain thresholds are subject to
major NSR requirements, while smaller emitting sources and
modifications may be subject to minor NSR requirements.\2\
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\1\ In this proposed action, the EPA refers to ``source'' as
shorthand for ``source owner/operator.''
\2\ ``Regulated NSR pollutant'' is defined at 40 CFR
52.21(b)(50). A ``regulated NSR pollutant'' includes any pollutant
for which a NAAQS has been promulgated and other pollutants
regulated under the CAA. These other pollutants include, among
others, fluorides, sulfuric acid mist, hydrogen sulfide, total
reduced sulfur, and reduced sulfur compounds. See, e.g., 40 CFR
52.21(b)(23). For NNSR, regulated NSR pollutants include only the
NAAQS, also known as criteria pollutants, and the precursors to
those pollutants for which the area is designated nonattainment. See
40 CFR 51.165(a)(1)(xxxvii).
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The NSR permitting program applies to sources located in an area
where the NAAQS have been exceeded (nonattainment area), areas where
the NAAQS have not been exceeded (attainment), and areas that are
unclassifiable. However, the demonstration that must be made to obtain
a permit and the conditions of such permits are different for
nonattainment and attainment/unclassifiable areas. Thus, the
pollutant(s) at issue and the air quality designation of the area where
the facility is located or proposed to be built determine the specific
permitting requirements.
A new stationary source is subject to major NSR requirements if its
potential to emit a regulated NSR pollutant exceeds certain emission
thresholds. If it exceeds an applicable threshold, the NSR regulations
define it as a ``major stationary source.'' \3\ An existing major
stationary source triggers major NSR permitting requirements when it
undergoes a ``major modification,'' which occurs when a source
undertakes a physical change or change in method of operation (i.e., a
``project'') that would result in: (1) A significant emissions increase
from the project, and (2) a significant net emissions increase from the
source. See, e.g., 40 CFR 51.165(a)(1)(v)(A), 40 CFR
51.165(a)(1)(xxxix), and 40 CFR 51.165(a)(2)(ii)(A).
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\3\ For major sources subject to Prevention of Significant
Deterioration (PSD) requirements, the CAA uses the term ``major
emitting facility,'' which is defined as a stationary source that
emits, or has a potential to emit (PTE) of, at least 100 tons per
year (tpy) if the source is in one of 28 listed source categories--
or at least 250 tpy if the source is not--of ``any air pollutant.''
CAA section 169(1). For NNSR, the emissions threshold for a major
stationary source is 100 tpy, although lower thresholds may apply
depending on the degree of the nonattainment problem and the
pollutant.
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Jefferson County is located within a nonattainment area for the
2015 8-hour ozone NAAQS. See 40 CFR 81.318; see also EPA's
Greenbook.\4\ Therefore, Jefferson County is required to have NNSR
rules approved into the Jefferson County portion of the Kentucky SIP
for this criteria pollutant addressing the requirements of CAA section
172(c)(5), CAA section 173, 40 CFR 51.165, and 40 CFR 51.1314.
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\4\ The Kentucky portion of the Greenbook is available at
<a href="https://www3.epa.gov/airquality/greenbook/anayo_ky.html">https://www3.epa.gov/airquality/greenbook/anayo_ky.html</a>.
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II. Analysis of the Commonwealth's Submittal
The Commonwealth has proposed changes to Regulation 2.04--
Construction or Modification of Major Sources In or Impacting Upon Non-
Attainment Areas (Emission Offset Requirements) in the Jefferson County
portion of Kentucky's SIP. EPA's analysis of the Commonwealth's
proposed revisions to Regulation 2.04 is provided below.
a. CAA Requirements Regarding the Changes to Regulation 2.04
Based on Jefferson County's nonattainment designation for the 2015
8-hour ozone NAAQS, Kentucky was required to develop a SIP revision
addressing the requirements of CAA sections 172(c)(5) and 173 for this
nonattainment area. Section 172(c)(5) requires each state with a
nonattainment area to submit a SIP revision requiring NNSR permits in
the nonattainment area in accordance with the permitting requirements
of CAA section 173.\5\ The minimum SIP requirements for NNSR permitting
for the ozone NAAQS are in 40 CFR 51.165. See 40 CFR 51.1314. The
proposed revisions to Regulation 2.04 must comply with these minimum
requirements.
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\5\ CAA section 173 requires, among other things, emissions
offsets. The emissions offset ratio for moderate ozone nonattainment
areas is found in CAA section 182(b)(5).
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On June 13, 2022, Kentucky submitted a SIP revision \6\ to EPA that
includes changes to the District's Regulation 2.04, which establishes
requirements for Jefferson County's NNSR program, along with a
certification that this updated version of Regulation 2.04 satisfies
the requirements of the CAA for the 2015 8-hour ozone NAAQS applicable
to the Jefferson County portion of the Louisville, KY-IN 2015 ozone
moderate nonattainment area.\7\
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\6\ The June 13, 2022, submission was received via a letter
dated June 15, 2022.
\7\ On July 13, 2021, Kentucky, on behalf of Jefferson County,
submitted a certification that the current SIP-approved version of
Regulation 2.04 fulfills requirements of the NNSR program. Jefferson
County withdrew that submission on June 13, 2022, and replaced it
with a SIP revision containing changes to District Regulation 2.04
and an updated certification that the modified version of Regulation
2.04 complies with NNSR requirements for the 8-hour ozone NAAQS as
addressed in this proposed rulemaking.
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b. Changes to Regulation 2.04
The Jefferson County June 13, 2022, SIP revision includes changes
to Jefferson County's NNSR permitting regulations to align those
regulations with the federal requirements for NNSR permitting in 40 CFR
51.165. Specifically, these changes update Jefferson County's
Regulation 2.04--Construction or Modification of Major Sources In or
Impacting Upon Non-Attainment Areas (Emission Offset Requirements),
which applies to new major stationary sources and major modifications
locating in an area designated as nonattainment.<SUP>8 9</SUP> EPA last
[[Page 3615]]
approved amendments to Regulation 2.04 in the SIP on October 23, 2001,
with a local effective date of March 17, 1993. See 66 FR 53660.
Approximately twenty-nine years have passed between this local
effective date and the local effective date of Jefferson County's
updated Regulation 2.04 that EPA is now proposing to approve into the
SIP. The June 13, 2022, SIP revision aims to align the Jefferson County
regulations with the most recent version of 40 CFR 51.165, which sets
forth minimum NNSR permitting program requirements.
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\8\ Under the June 13, 2022, cover letter, Jefferson County also
submitted updates to the following District Regulations: Regulation
1.06--Stationary Source Self-Monitoring, Emissions Inventory
Development, and Reporting and Regulation 2.17--Federally
Enforceable District Origin Operating Permits. These rules will be
acted on separately by EPA.
\9\ The existing sections in the redline strike-through text of
the submittal appear are misnumbered. Section 1 is repeated twice--
once at Section 1 Applicability and again at Section 1 Definitions.
For example, Section 9 Permit Condition Rescission is marked as
Section 8 in the redline strike-through text of the submission. The
erroneous numbering extends throughout the entirety of Regulation
2.04. The text in each section is accurate despite the misnumbering,
and this misnumbering is not contained in the non-redline version of
the regulatory text contained within the submittal.
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Since the last time EPA approved amendments to Regulation 2.04, EPA
has updated the federal NNSR regulations in 40 CFR 51.165 to clarify
provisions, provide greater regulatory certainty, and provide
administrative flexibility while correcting certain errors in the NNSR
regulations that had accumulated over time. Jefferson County's
requested SIP revision replaces the District's NNSR regulations largely
in their entirety with a new version that reflects changes to the
federal NNSR regulations at 40 CFR 51.165, including provisions
promulgated in the following federal rules:
<bullet> ``Requirements for Preparation, Adoption and Submittal of
Implementation Plans; Approval and Promulgation of Implementation
Plans; Standards of Performance for New Stationary Sources,'' Final
Rule, 57 FR 32314 (July 21, 1992) (generally referred to as the
Wisconsin Electric Power Company (WEPCO) Rule);
<bullet> ``Prevention of Significant Deterioration (PSD) and
Nonattainment New Source Review (NSR): Baseline Emissions
Determination, Actual-to-Future-Actual Methodology, Plantwide
Applicability Limitations, Clean Units, Pollution Control Projects,''
Final Rule, 67 FR 80186 (December 31, 2002) (generally referred to as
the NSR Reform Rule);
<bullet> ``Prevention of Significant Deterioration (PSD) and Non-
Attainment New Source Review (NSR): Reconsideration,'' Final Rule, 68
FR 63021 (November 7, 2003) (generally referred to as the
Reconsideration Rule);
<bullet> ``Prevention of Significant Deterioration (PSD) and Non-
Attainment New Source Review (NSR): Removal of Vacated Elements,''
Final Rule, 72 FR 32526 (June 13, 2007) (generally referred to as the
Vacated Elements Rule);
<bullet> ``Prevention of Significant Deterioration, Nonattainment
New Source Review, and Title V: Treatment of Certain Ethanol Production
Facilities Under the `Major Emitting Facility' Definition'', 72 FR
24060 (July 2, 2007) (generally referred to as the Ethanol Rule); \10\
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\10\ The June 13, 2022, submittal contains changes to address to
the Federal NNSR provisions promulgated in the Ethanol Rule. EPA is
not proposing to act on these changes in this proposed rulemaking.
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<bullet> ``Prevention of Significant Deterioration and
Nonattainment New Source Review: Reasonable Possibility in
Recordkeeping,'' Final Rule, 72 FR 72607 (December 21, 2007),
(generally referred to as the Reasonable Possibility Rule);
<bullet> ``Final Rule To Implement the 8-Hour Ozone National
Ambient Air Quality Standard--Phase 2; Final Rule To Implement Certain
Aspects of the 1990 Amendments Relating to New Source Review and
Prevention of Significant Deterioration as They Apply in Carbon
Monoxide, Particulate Matter and Ozone NAAQS; Final Rule for
Reformulated Gasoline,'' Final Rule, 70 FR 71612 (November 29, 2005)
(generally referred to as the Phase 2 Rule);
<bullet> ``Implementation of the New Source Review (NSR) Program
for Particulate Matter Less Than 2.5 Micrometers (PM<INF>2.5</INF>),''
Final Rule, 73 FR 28321 (May 16, 2008) (generally referred to as the
NSR PM<INF>2.5</INF> Rule);
<bullet> ``Prevention of Significant Deterioration (PSD) for
Particulate Matter Less Than 2.5 Micrometers (PM<INF>2.5</INF>)--
Increments, Significant Impact Levels (SILs) and Significant Monitoring
Concentration (SMC),'' Final Rule, 75 FR 64864 (October 20, 2010)
(generally referred to as the PM<INF>2.5</INF> PSD Increments-SILs-SMC
Rule);
<bullet> ``Prevention of Significant Deterioration (PSD) and
Nonattainment New Source Review (NSR): Reconsideration of Inclusion of
Fugitive Emissions; Interim Rule; Stay and Revisions'', Interim Rule,
76 FR 17548 (March 30, 2011) (generally referred to as the Fugitive
Emissions Interim Rule);
<bullet> ``Prevention of Significant Deterioration (PSD) and
Nonattainment New Source Review (NNSR): Project Emissions Accounting'',
85 FR 74890 (November 24, 2020) (generally referred to as the Project
Emissions Accounting Rule); and
<bullet> ``New Source Review Regulations; Correction'', 86 FR 37918
(July 19, 2021) (generally referred to as the NSR Corrections Rule).
Additional information regarding each of the above-described rules
is available within the Federal Register citations provided and at
<a href="https://www.epa.gov/nsr/nsr-regulatory-actions">https://www.epa.gov/nsr/nsr-regulatory-actions</a>. More detailed
discussion of the textual changes proposed by Jefferson County is
provided below.
Section 1--As revised, the existing Section 1, Applicability, is
now titled Definitions. The text of the existing section, which
identifies sources that are regulated by Regulation 2.04, is removed in
its entirety, and replaced with the Definitions section, which has been
relocated from Section 2.
The proposed definitions in Section 1 would modify, add, or remove
existing definitions currently found in Section 2 and reorder several
definitions. The definitions that are removed include: ``Reasonable
further progress,'' ``Adverse impact on visibility,'' ``State
Implementation Plan,'' ``Mandatory Class I federal area,'' ``Natural
conditions,'' and ``Visibility impairment.'' Jefferson County's June
13, 2022, SIP revision also includes the removal of the definition,
``Class I area.'' However, the District has since withdrawn its request
for this change.\11\
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\11\ In a letter dated August 24, 2023, the District withdrew
its request to remove Section 2.2.20 of Regulation 2.04 from the
SIP, which defines ``Class I area,'' from EPA's consideration. In a
subsequent email dated November 14, 2023, the District clarified
that the withdrawal of the June 13, 2022, request to remove from the
SIP Regulation 2.04 version 7 Section 2.2.20, includes all
subparagraphs within the definition (i.e., 2.2.20.1 through
2.2.20.7). See the August 24, 2023, letter, and the November 14,
2023, clarifying correspondence in the docket for this proposed
rulemaking.
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New definitions are added in Section 1, which include: ``Volatile
organic compounds (VOC),'' ``Electric utility steam generating unit,''
``Replacement unit,'' ``Temporary clean coal technology demonstration
project,'' ``Clean coal technology,'' ``Clean coal technology
demonstration project,'' ``Pollution prevention,'' ``Significant
emissions increase,'' ``Projected actual emissions,'' ``Nonattainment
major new source review (NSR) program,'' ``Continuous emissions
monitoring system (CEMS),'' ``Predictive emissions monitoring system
(PEMS),'' ``Continuous parameter monitoring system (CPMS),''
``Continuous emissions rate monitoring system (CERMS),'' ``Baseline
actual emissions,'' ``Regulated NSR pollutant,'' ``Reviewing
authority,'' ``Project,'' ``Best available control technology (BACT),''
``Prevention of Significant Deterioration (PSD) permit,'' ``Federal
Land Manager,'' ``Act,'' ``Administrator,'' and
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``NAICS.'' Among the additions, three entries labeled ``[Reserved]''
are added at 1.25, 1.29, and 1.36. Lastly, the following definitions
have been modified: ``Stationary source,'' ``Building, structure,
facility, or installation,'' ``Secondary emissions,'' ``Actual
emissions,'' ``Emissions unit,'' ``Major stationary source,'' ``Major
modification,'' ``Net emission increase,'' ``Potential to emit,''
``Construction,'' ``Commence,'' ``Necessary preconstruction approval or
permits,'' ``Allowable emissions,'' ``Federally enforceable,''
``Fugitive Emissions,'' ``Significant,'' and ``Lowest achievable
emission rate.''
Certain definitions were also revised to remove outdated
terminology and align the rules with the Federal regulations at 40 CFR
51.165. EPA is proposing to approve these definitional revisions,
except that EPA is not proposing at this time to approve into the SIP
the following phrase in the definition at 1.4.3.20 originating from the
Ethanol Rule: ``--The term chemical processing plant shall not include
ethanol production facilities that produce ethanol by natural
fermentation included in NAICS codes 325193 or 312140''. The remaining
definitions (i.e., those neither modified nor removed in Section 2)
were moved into Section 1 unchanged.
Section 2--As revised, the existing Section 2, Definitions, is now
titled Applicability Procedures. As mentioned above, the terms and
definitions in the existing Section 2 are relocated to Section 1 as
part of the proposed changes. The revised Section 2 includes revised
applicability provisions of Rule 2.04, including three subsections
that: (1) Define which sources are subject to regulation under Rule
2.04, (2) outline the procedures for determining whether a project is a
major modification for a regulated NSR pollutant, and (3) require that
any major stationary source with a plantwide applicability limit (PAL)
for a regulated NSR pollutant comply with requirements under section 16
of Rule 2.04.
Section 3--As revised, the existing Section 3, Initial Screening
Analyses and Determination of Applicable Requirements, is now titled
Conditions for Approval. The existing text of Section 3 requires the
District to evaluate a source's compliance with applicable emission
requirements to determine their eligibility for a construction permit.
The regulation also requires that the District evaluate a source's
impact on air quality to determine whether offset credits are required.
Lastly, the regulation exempts certain sources from applicable
conditions for approval established in the existing Section 5 text, and
visibility impact analysis addressed in Section 10, if the source's
fugitive emissions are considered in calculating the source's potential
to emit and the source does not belong to specified source categories.
The revised Section 3 provides the conditions that new major stationary
sources or major modifications must meet prior to approval of
construction in an area designated as nonattainment.
Section 4--As revised, the existing Section 4, Sources Locating in
Designated Attainment or Unclassifiable Areas, is now titled Baseline.
The existing Section 4 provisions regulate new major stationary sources
and major modifications of existing sources in areas designated as
attainment or unclassifiable if the source or modification would cause
impacts which exceed the significance levels specified in Appendix B at
any locality that does not, or would not, meet the NAAQS. The proposed
changes to this rule remove these provisions in their entirety from
Section 4 and move them, with revisions compliant with 40 CFR 51.165,
to Section 15. The revised Section 4 establishes baseline emissions
limits for which emission reduction credits are determined. The text
added in this section regulates allowable credits and includes
provisions pertaining to credits for shutting down an existing
emissions unit, the replacement of one hydrocarbon compound with
another of lesser reactivity, the requirement that offset credits be
federally enforceable, offset requirements for owners of new sources
and modifying sources, and limitations on credit claimed.
Section 5--As revised, the existing Section 5, Conditions for
Approval, is now titled Fugitive Emissions. The existing Section 5
regulates the conditions for approval to construct in a nonattainment
area. As revised, the text under this section is removed in its
entirety and, as mentioned above, conditions for approval are discussed
in the proposed language of revised Section 3. The proposed language in
the revised Section 5 establishes how fugitive emissions should be
treated when evaluating NNSR applicability. EPA is not proposing to
incorporate the language originating from the Ethanol Rule within
Section 5.20, which states that ``The term chemical processing plant
shall not include ethanol production facilities that produce ethanol by
natural fermentation included in NAICS codes 325193 or 312140,'' into
the Jefferson County portion of Kentucky's SIP in this notice.
Section 6--As revised, the existing Section 6, Baseline for
Determining Credit for Emission Offsets, is now titled Effect of Other
Requirements. The existing Section 6 establishes the requirements for
determining baseline emissions. This section is moved in its entirety
to Section 4. The proposed language of the revised Section 6 requires
an owner or operator to comply with any requirements under local,
state, or Federal law even after approval to construct has been given.
Additionally, the revised Section 6 establishes that when a relaxation
of an enforcement limitation occurs and a source or modification is
deemed a major source due to its capacity to emit a pollutant, the
requirement of this provision will then apply to the source or
modification in a manner as if construction had not commenced.
Section 7--As revised, the existing Section 7, Administrative
Procedures, is now titled Applicability Recordkeeping and Reporting.
The existing text of Section 7 regulates the administrative procedures
for managing source-initiated and District-initiated emission offsets,
which are enforceable by the District and EPA. The proposed changes in
Section 7 remove the text for administrative procedures in its entirety
and replace it with provisions on applicability recordkeeping and
reporting. As revised, Section 7 provides specific recordkeeping and
reporting provisions for any regulated NSR pollutant emitted from
projects at existing emissions units at a major stationary source
(other than projects at a source with a PAL) where there is a
``reasonable possibility'' that a project that is not a part of a major
modification may result in a significant emissions increase of such
pollutant and the owner or operator elects to use the actual-to-
projected-actual applicability process for calculating projected actual
emissions.
Section 8--As revised, the existing Section 8, Source Obligation,
is now titled Availability of Documentation. The existing language of
Section 8 describes a source's compliance obligations and the
enforcement that may be taken against the source when the source fails
to comply with these obligations. The failure to comply may occur when
a source relaxes an enforceable emissions limitation such that the
particular source or modification becomes a major stationary source or
major modification solely by virtue of a relaxation in any enforcement
limitation or when the source initiates construction of a source prior
to obtaining a required permit. The proposed changes in Section 8
include
[[Page 3617]]
the removal of the existing text in its entirety and the addition of
requirements for owners or operators to present documentation required
by Section 7 upon request by the District or the general public.
Section 9--As revised, the existing Section 9, Permit Condition
Rescission, is now titled Applicability of VOC Requirements to Major
Sources of NOX. The existing text under Section 9 regulates the
recission of permits that were issued prior to April 21, 1982. The
proposed changes include removal of this text in its entirety. As
revised, Section 9 provides that ``[t]he requirements of this
regulation applicable to major stationary sources and major
modifications of volatile organic compounds shall apply to nitrogen
oxides emissions from major stationary sources and major modifications
of nitrogen oxides in an ozone transport region or in any ozone
nonattainment area'' except where the EPA Administrator has granted a
NO<INF>X</INF> waiver.
Section 10--The proposed changes include the addition of a new
Section 10, Offset Ratio, which establishes the offset ratio provisions
to accompany the conditions for approval provided in Section 3.\12\
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\12\ In a letter dated August 24, 2023, the District withdrew
its request to remove Section 10--Protection of Visibility, from
EPA's consideration. Keeping Section 10--Protection of Visibility in
the SIP allows the Commonwealth to maintain visibility provisions
for the Jefferson County area in accordance with 40 CFR
51.307(b)(2). The request to add Section 10--Offset Ratio remains
before EPA for consideration. The withdrawal would leave two
sections numbered ``10'' in Rule 2.04: one locally effective on
March 13, 1993, and the other locally effective on March 16, 2022.
The District intends to address the duplicate numbering in a future
submission.
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Section 11--The proposed changes include the addition of a new
Section 11, Applicability to PM10 Precursors. This section provides
that the requirements of Regulation 2.04 applicable to major stationary
sources and major modifications of particulate matter with a diameter
of 10 microns or less (PM<INF>10</INF>) shall also apply to major
stationary sources and major modifications of PM<INF>10</INF>
precursors, except where the Administrator determines that such sources
do not contribute significantly to PM<INF>10</INF> levels that exceed
the PM<INF>10</INF> ambient standards in the area.
Section 12 and Section 13--Sections 12 and 13 are added as
``Reserved'' sections for future use.
Section 14--The proposed changes include the addition of a new
Section 14, Applicability to PM2.5 Precursors. This section provides
that the control requirements of Regulation 2.04 applicable to major
stationary sources and major modifications of PM<INF>2.5</INF> shall
also apply to major stationary sources and major modifications of
PM<INF>2.5</INF> precursors in a PM<INF>2.5</INF> nonattainment area,
except that a reviewing authority may exempt new major stationary
sources and major modifications of a particular precursor from the
requirements of the rule for PM<INF>2.5</INF> if the NNSR precursor
demonstration submitted to and approved by EPA shows that such sources
do not contribute significantly to PM<INF>2.5</INF> levels that exceed
the standard in the area.
Section 15--The proposed changes include the addition of a new
Section 15, Applicability of Regulation in Attainment Areas. This
section applies to any new major stationary source or major
modification, as defined in paragraphs 1.4 and 1.5 of Regulation 2.04,
that would locate in any area designated as attainment or
unclassifiable for any NAAQS when it would cause or contribute to a
violation of any NAAQS. This section also includes the significance
levels above which a source would be considered to cause or contribute
to a violation of the NAAQS. It also provides that applicable sources
may obtain sufficient emissions reductions to compensate for their
impact on air quality. Lastly, the revised regulations clarify that
Section 15 sources need not be subject to the provisions of Section 15
for a regulated NSR pollutant if they can demonstrate that the area in
which the source would be located is not in attainment for that
particular regulated pollutant.
Section 16--The proposed changes include the addition of a new
Section 16, Actuals PALs. This section establishes the provisions in
which a reviewing authority may approve the use of an actuals PAL for
any existing major stationary source and establishes relevant
definitions pertaining to PALs. This section contains PAL regulations,
including the requirements related to permit applications, public
notice and comment, the establishment of PAL levels, and the components
a PAL permit.
Section 17 and Section 18--Sections 17 and 18 are added as
``Reserved'' sections for future use.
Section 19--The proposed changes include the addition of a new
Section 19, Public participation requirements. This section establishes
the reviewing authority's responsibility to notify the public of a
draft permit and establishes how the notification must take place.
Appendix A and Appendix B--As revised, existing Appendix A,
Significant Pollutant and Emission Rate, and existing Appendix B,
Significant Levels of Air Quality Impact, are removed in their
entirety. The information that is provided in existing Appendix A and
Appendix B is condensed into chart form in the revised Section 15.
PM<INF>2.5</INF> and PM<INF>10</INF> are defined in Regulation 1.02.
c. Nonattainment New Source Review Certification
Jefferson County has a longstanding and fully implemented NNSR
program that establishes air quality permitting requirements for the
construction or modification of major stationary sources located within
areas designated as nonattainment. The program, found at Jefferson
County Regulation 2.04, Construction or Modification of Major Sources
in or Impacting upon Nonattainment Areas (Emission Offset
Requirements), contains NNSR permitting requirements for the Jefferson
County portion of the Kentucky SIP.\13\ In its June 13, 2022, SIP
revision, Kentucky, on behalf of the District, certified that the
version of Regulation 2.04 proposed for incorporation into the
Jefferson County portion of the Kentucky SIP satisfies the Federal NNSR
requirements for the Jefferson County portion of the Louisville, KY-IN
2015 ozone moderate nonattainment area. The version of Regulation 2.04
that is contained in the current Jefferson County portion of the
Kentucky SIP was approved into the SIP by EPA on October 23, 2001, see
66 FR 53658, and was state effective as of March 17, 1993.
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\13\ In 2003, the City of Louisville and Jefferson County
governments merged, and the ``Jefferson County Air Pollution Control
District'' was renamed the ``Louisville Metro Air Pollution Control
District.'' See The History of Air Pollution Control in Louisville,
available at <a href="https://louisvilleky.gov/government/air-pollution-control-district/history-air-pollution-control-louisville">https://louisvilleky.gov/government/air-pollution-control-district/history-air-pollution-control-louisville</a>. However,
each of the regulations in the Jefferson County portion of the
Kentucky SIP still has the subheading ``Air Pollution Control
District of Jefferson County.'' Thus, to be consistent with the
terminology used in the SIP, EPA refers throughout this notice to
regulations contained in the Jefferson County portion of the
Kentucky SIP as the ``Jefferson County Regulations.''
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As revised, Regulation 2.04 provides requirements for the 2015
ozone moderate nonattainment area for Jefferson County and remains
adequate to meet all applicable NNSR requirements for the 2015 8-hour
ozone NAAQS. EPA is therefore proposing to approve the District's
certification, submitted on its behalf by Kentucky, that Jefferson
County Regulation 2.04, as proposed for incorporation into the SIP,
meets the NNSR requirements for implementation of the 2015 8-hour ozone
NAAQS.
[[Page 3618]]
d. Clean Air Act Sections 110(l) and 193
Section 110(l) of the CAA requires that a revision to the SIP not
interfere with any applicable requirement concerning attainment and
reasonable further progress (as defined in section 171), or any other
applicable requirement of the Act. As noted above, since the last time
EPA approved amendments to Regulation 2.04, with a local effective date
of March 17, 1993, EPA has updated the Federal NNSR regulations in 40
CFR 51.165 several times. These revisions include NSR Reform and the
related Reasonable Possibility Provisions implemented through the
December 31, 2002, final rule (67 FR 80186), with revisions per the
November 7, 2003, final rule (68 FR 63021), the June 13, 2007, final
rule (72 FR 32526), and the December 21, 2007, final rule (72 FR 72607)
along with the adoption of the Project Emissions Accounting Rule. 85 FR
74890 (November 24, 2020). The District's updates to Regulation 2.04
are intended to align its NNSR rules with EPA's current NNSR rules in
40 CFR 51.165. As discussed below, EPA's proposed approval of the
District's Regulation 2.04 into the Jefferson County portion of the
Kentucky SIP is consistent with CAA section 110(l) and CAA section 193.
EPA's national analysis in support of the 2002 NSR Reform Rules
indicates that the non-vacated provisions of the NSR Reform Rules will
have a neutral or beneficial impact. The three significant changes in
the 2002 NSR Reform Rules are: (1) PALs, (2) the 2-in-10 baseline, and
(3) the actual-to-projected-actual applicability test. EPA's
Supplemental Environmental Analysis of the Impact of the 2002 Final NSR
Improvement Rules (November 21, 2002) (Supplemental Analysis) \14\
discussed each of these three changes individually.
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\14\ The Supplemental Analysis is available at <a href="https://www.epa.gov/sites/default/files/2015-08/documents/nsr-analysis.pdf">https://www.epa.gov/sites/default/files/2015-08/documents/nsr-analysis.pdf</a>.
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With regard to PALs, the Supplemental Analysis explains, ``EPA
expects that the adoption of PAL provisions will result in a net
environmental benefit. Our experience to date is that the emissions
caps found in PAL-type permits result in real emissions reductions, as
well as other benefits.'' Supplemental Analysis, pg. 6. EPA further
explained that, while it is difficult to quantify the emissions
reductions associated with PALs, the PAL program will likely result in
tens of thousands of tons of reductions of VOC from source categories
where frequent operational changes are made, where these changes are
time sensitive, and where there are opportunities for economical air
pollution control measures. These reductions occur because by creating
a tons per year plantwide emissions limit for a regulated NSR
pollutant, sources have an incentive to control existing and new units
in order to provide room under the cap such that the source can
undertake subsequent operational changes over the life of the PAL.
Supplemental Analysis, pg. 7. The Supplemental Analysis, and
particularly Appendix B, provides additional details regarding EPA's
analysis of PALs and anticipated associated emissions decreases.
With regard to the 2-in-10 baseline (see 40 CFR
51.165(a)(1)(xxxv)(B)), EPA concluded that ``the environmental impact
from the change in baseline EPA is now finalizing will not result in
any significant change in benefits derived from the NSR program.''
Supplemental Analysis at 13. This is mainly because ``the number of
sources receiving different baselines likely represents a very small
fraction of the overall NSR permit universe, excludes new sources and
coal fired power plants, and because the baseline may shift in either
direction, we conclude that any overall consequences would be
negligible.'' Supplemental Analysis, pg. 14. Additional information
regarding the 2-in-10 baseline changes is available in the Supplemental
Analysis, Appendix F.
With regard to the actual-to-projected-actual test, EPA concluded,
``We believe that the environmental impacts of the switch to the
actual-to-projected actual test are likely to be environmentally
beneficial. However, as with the change to the baseline, we believe the
vast majority of sources, including new sources, new units, electric
utility steam generating units, and units that actually increase
emissions as a result of a change, will be unaffected by this change.
Thus, the overall impacts of the NSR changes are likely to be
environmentally beneficial, but only to a small extent.'' Supplemental
Analysis, pg. 14 (see also Supplemental Analysis Appendix G). EPA has
no reason to believe that the environmental impacts will be
substantially different from those discussed in the Supplemental
Analysis for the 2002 NSR Reform Rules. Therefore, adopting the NSR
Reform provisions into the Jefferson County portion of the Kentucky SIP
is consistent with CAA section 110(l).
Regarding the adoption of the Project Emissions Accounting (PEA)
Rule, as EPA noted in the response to comments document for the PEA
Rule, ``implementation of [the PEA Rule] will not cause states to
violate the anti-backsliding requirements of the Clean Air Act.
Allowing for PEA is consistent with the intent of the 2002 NSR Reform
Rule and is more consistent with the Act than implementing Step 1
without PEA. That is because PEA would not subject a project which does
not significantly increase emissions in and of itself, or actually
result in a decrease [in] emissions, from being subject to NSR.'' See
Response to Comments Document on Proposed Rule: `Prevention of
Significant Deterioration (PSD) and Nonattainment New Source Review
(NNSR): Project Emissions Accounting''--84 FR 39244, August 9, 2019
(October 2020), at pg. 114. Therefore, adopting the PEA provisions into
the Jefferson County portion of the Kentucky SIP is consistent with CAA
section 110(l).
Section 193 of the CAA prohibits modification of any control
requirement in effect before November 15, 1990, in a current
nonattainment area, unless the modification ``insures equivalent or
greater emissions reductions.'' Section 193 does not apply here because
the state-effective date of Louisville's Regulation 2.04 is March 17,
1993. Additionally, EPA anticipates a neutral to positive air quality
benefit from adoption of these rules, and therefore these rules will
ensure ``equivalent or greater emission reductions'' of air pollution
in accordance with CAA section 193.
III. Incorporation by Reference
In this document, EPA is proposing to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with requirements of 1 CFR 51.5, and as discussed in Sections I and II
of this preamble, EPA is proposing to incorporate by reference
Jefferson County Regulation 2.04, Version 8, ``Construction or
Modification of Major Sources in or Impacting upon Non-Attainment Areas
(Emission Offset Requirements),'' locally effective on March 16, 2022,
except for the ethanol production facilities exclusion in Sections
1.4.3.20 and 5.20, which EPA is not proposing to act on at this time.
Additionally, EPA proposes to maintain Sections 2.2.20 and 10 from
Version 7 of Regulation 2.04, locally effective on March 17, 1993.\15\
EPA has made and will continue to make, these materials generally
available through <a href="http://www.regulations.gov">www.regulations.gov</a> and at the EPA Region 4 Office
(please contact the person identified in the For Further
[[Page 3619]]
Information Contact section of this preamble for more information).
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\15\ See footnotes 11 and 12.
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IV. Proposed Action
EPA is proposing to approve changes to the Jefferson County portion
of the Kentucky SIP, submitted on June 13, 2022, with the exception of
the ethanol production facilities exclusion in Regulations 1.4.3.20 and
5.20, which EPA is not proposing to act on at this time. These
revisions will align Jefferson County Regulation 2.04, with Federal
NNSR regulations at 40 CFR 51.165. Additionally, EPA is proposing to
approve Jefferson County's certification of NNSR requirements for the
2015 8-hour ozone NAAQS for the Jefferson County portion of the
Louisville, KY-IN 2015 ozone moderate nonattainment area which meets
the requirements of CAA sections 172(c)(5) and 173 and 40 CFR 51.165
and 51.1314. EPA has determined that the requested changes in
Kentucky's June 13, 2022, SIP revision will not interfere with any
applicable requirement concerning attainment and reasonable further
progress, or any other applicable requirement of the CAA.
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 CAA 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 proposes to approve state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this proposed action:
<bullet> Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);
<bullet> Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
<bullet> 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.);
<bullet> 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);
<bullet> Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
<bullet> Is not subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because it approves a state program;
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001); and
<bullet> 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.
In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the rule does not have tribal implications and will not impose
substantial direct costs on tribal governments or preempt tribal law as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Executive Order 12898 (Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
February 16, 1994) directs Federal agencies to identify and address
``disproportionately high and adverse human health or environmental
effects'' of their actions on minority populations and low-income
populations to the greatest extent practicable and permitted by law.
EPA defines environmental justice (EJ) as ``the fair treatment and
meaningful involvement of all people regardless of race, color,
national origin, or income with respect to the development,
implementation, and enforcement of environmental laws, regulations, and
policies.'' EPA further defines the term fair treatment to mean that
``no group of people should bear a disproportionate burden of
environmental harms and risks, including those resulting from the
negative environmental consequences of industrial, governmental, and
commercial operations or programs and policies.''
Jefferson County evaluated EJ considerations as part of its SIP
submittal even though the CAA and applicable implementing regulations
neither prohibit nor require an evaluation. The analysis was done for
the purpose of providing additional context and information about this
proposed rulemaking to the public, not as a basis of the proposed
action. EPA is proposing action under the CAA on bases independent of
Jefferson County's evaluation of EJ. In addition, there is no
information in the record upon which this decision is based that is
inconsistent with the stated goal of E.O. 12898 of achieving EJ for
people of color, low-income populations, and Indigenous peoples.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: January 16, 2024.
Jeaneanne Gettle,
Acting Regional Administrator, Region 4.
[FR Doc. 2024-01029 Filed 1-18-24; 8:45 am]
BILLING CODE 6560-50-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.