[Federal Register Volume 84, Number 22 (Friday, February 1, 2019)]
[Proposed Rules]
[Pages 1016-1021]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-00781]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2018-0018; FRL-9988-82-Region 4]
Air Plan Approval; Kentucky: Jefferson County Prevention of
Significant Deterioration
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve two revisions to the Jefferson County portion of the Kentucky
State Implementation Plan (SIP), submitted by the Commonwealth of
Kentucky, through the Energy and Environment Cabinet (Cabinet), with
letters dated August 25, 2017, and March 15, 2018. The proposed SIP
revisions were submitted by the Cabinet on behalf of the Louisville
Metro Air Pollution Control District (District) and make amendments to
Jefferson County's regulation regarding the prevention of significant
deterioration (PSD) permitting program. This action is being proposed
pursuant to the Clean Air Act (CAA or Act).
DATES: Comments must be received on or before March 4, 2019.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2018-0018 at http://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. 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, etc.) must be accompanied by a
written comment. The written comment is
[[Page 1017]]
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 http://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Andres Febres, Air Regulatory
Management Section, Air Planning and Implementation 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) 562-8966. Mr. Febres can also
be reached via electronic mail at [email protected].
SUPPLEMENTARY INFORMATION:
I. What action is EPA proposing?
EPA is proposing to approve changes to the Jefferson County portion
of the Kentucky SIP that were provided to EPA through two letters dated
August 25, 2017, and March 15, 2018.\1\ EPA is proposing to approve
portions of these SIP revisions that make changes to the District's
Regulation 2.05--Prevention of Significant Deterioration of Air
Quality, which applies to the construction and modification of any
major stationary source in areas designated as attainment or
unclassifiable as required by part C of title I of the CAA. These
revisions are intended to make the Jefferson County PSD permitting
regulation consistent with the federal requirements, as promulgated by
EPA.\2\ The August 25, 2017, and March 15, 2018, SIP revisions update
the incorporation by reference (IBR) date found at Regulation 2.05 from
July 1, 2010, to July 15, 2017, for the federal PSD permitting
regulations at 40 CFR 52.21. By updating the IBR date for 40 CFR 52.21,
Jefferson County is making the following changes to their PSD
regulations: (1) Adopting ``increments'' for the PM2.5
National Ambient Air Quality Standard (NAAQS); (2) adopting updated
greenhouse gases (GHGs) provisions; (3) incorporating grandfathering
provisions for the 2012 primary annual PM2.5 NAAQS and the
2015 8-hour ozone NAAQS, as well as adopting the repeal of
grandfathering provisions for the old PM2.5 NAAQS; and (4)
incorporating a correction to the definition of ``regulated NSR
pollutant'' for PSD. These changes are discussed in more detail in the
following sections.\3\
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\1\ EPA notes that the Agency received the SIP revisions on
August 29, 2017, and March 18, 2018.
\2\ EPA's regulations governing the implementation of New Source
Review (NSR) permitting programs are contained in 40 CFR 51.160--
51.166; 52.21, 52.24; and part 51, Appendix S. The CAA NSR program
is composed of three separate programs: PSD, nonattainment NSR
(NNSR), and Minor NSR. The PSD program is established in part C of
title I of the CAA and applies in areas that meet the National
Ambient Air Quality Standards (NAAQS)--``attainment areas''--as well
as areas where there is insufficient information to determine if the
area meets the NAAQS--``unclassifiable areas.'' The NNSR program is
established in part D of title I of the CAA and applies in areas
that are not in attainment of the NAAQS--``nonattainment areas.''
The Minor NSR program addresses construction or modification
activities that do not qualify as ``major'' and applies regardless
of the designation of the area in which a source is located.
Together, these programs are referred to as the NSR programs.
\3\ EPA has not approved, and is not currently proposing to
approve into the Jefferson County portion of the Kentucky SIP, the
provisions of the Ethanol Rule (May 1, 2007; 72 FR 24060), that seek
to exclude facilities that produce ethanol through a natural
fermentation process, from the definition of ``chemical process
plants'' in the major NSR source permitting program found at 40 CFR
52.21(b)(1)(i)(a) and (b)(1)(iii)(t). Additionally, EPA notes that
the PSD provisions found at 40 CFR 52.21(b)(2)(v) and
(b)(3)(iii)(c), regarding the Fugitive Emissions Rule (December 19,
2008; 73 FR 77882), were initially stayed for an 18-month period on
March 31, 2010, and subsequently stayed indefinitely by the Fugitive
Emissions Interim Rule, on March 30, 2011 (76 FR 17548). These
fugitive emissions provisions are automatically stayed in the
Jefferson County portion of the Kentucky SIP, under the SIP-approved
``automatic rescission clause'' at Regulation 2.05, which provides
that in the event that EPA or a federal court stays, vacates, or
withdraws any section or subsection of 40 CFR 52.21, that section or
subsection shall automatically be deemed stayed, vacated or
withdrawn.
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II. Background
A. 1997 PM2.5 NAAQS Implementation
1. Implementation of NSR for the PM2.5 NAAQS and
Grandfathering Provisions
On May 16, 2008 (73 FR 28321), EPA published the ``Implementation
of the New Source Review (NSR) Program for Particulate Matter Less than
2.5 Micrometers (PM2.5)'' Final Rule (hereinafter referred
to as the NSR PM2.5 Rule). The 2008 NSR PM2.5
Rule revised the NSR program requirements to establish the framework
for implementing preconstruction permit review for the PM2.5
NAAQS in both attainment and nonattainment areas. As indicated in the
2008 NSR PM2.5 Rule, major stationary sources seeking
permits must begin directly satisfying the PM2.5
requirements, as of the effective date of the rule, rather than relying
on PM10 as a surrogate, with two exceptions. The first
exception was a ``grandfathering'' provision in the federal PSD program
at 40 CFR 52.21(i)(1)(xi). This grandfathering provision applied to
sources that had applied for, but had not yet received, a final and
effective PSD permit before the July 15, 2008, effective date of the
May 2008 final rule. The second exception was that states with SIP-
approved PSD programs could continue to implement a policy in which
PM10 served as a surrogate for PM2.5 for up to
three years (until May 2011) or until the individual revised state PSD
programs for PM2.5 were approved by EPA, whichever came
first.\4\
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\4\ After EPA promulgated the NAAQS for PM2.5 in
1997, the Agency issued a guidance document entitled ``Interim
Implementation of New Source Review Requirements for
PM2.5,'' which allows for the regulation of
PM10 as a surrogate for PM2.5 until
significant technical issues were resolved (the ``PM10
Surrogate Policy''). John S. Seitz, EPA, October 23, 1997.
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On May 18, 2011 (76 FR 28646), EPA took final action to repeal the
PM2.5 grandfathering provision contained in the federal PSD
program at 40 CFR 52.21(i)(1)(xi). This final action also ended the use
of the 1997 PM10 Surrogate Policy for PSD permits under the
federal PSD program at 40 CFR 52.21. In effect, any PSD permit
applicant previously covered by the grandfathering provision (for
sources that completed and submitted a permit application before July
15, 2008) \5\ that did not have a final and effective PSD permit before
the effective date of the repeal will not be able to rely on the 1997
PM10 Surrogate Policy to satisfy the PSD requirements for
PM2.5.
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\5\ Sources that applied for a PSD permit under the federal PSD
program on or after July 15, 2008, are already excluded from using
the 1997 PM10 Surrogate Policy as a means of satisfying
the PSD requirements for PM2.5. See 73 FR 28321.
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The NSR PM2.5 Rule also established the following NSR
requirements to implement the PM2.5 NAAQS: (1) Required NSR
permits to address directly emitted PM2.5 and precursor
pollutants; (2) established significant emission rates for direct
PM2.5 and precursor pollutants (including sulfur dioxide and
oxides of nitrogen); (3) established PM2.5 emission offsets;
and (4) required states to account for gases that condense to form
particles (``condensables'') in PM2.5 and PM10
emission limits in PSD or NNSR permits. In addition, the NSR
PM2.5 Rule gives states the option of allowing
interpollutant trading for the purpose of precursor offsets under the
PM2.5 NNSR program.\6\
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\6\ On July 21, 2011, as a result of reconsidering the
interpollutant trading (IPT) policy, EPA issued a memorandum
indicating that the existing preferred precursor offset ratios
associated with the IPT policy and promulgated in the NSR
PM2.5 Rule were no longer considered approvable. The
memorandum stated that any PM2.5 precursor offset ratio
submitted as part of the NSR SIP for PM2.5 nonattainment
areas would need to be accompanied by a technical demonstration
exhibiting how the ratios are suitable for that particular
nonattainment area. See Memorandum from Gina McCarthy to Regional
Air Division Directors, ``Revised Policy to Address Reconsideration
of Interpollutant Trading Provisions for Fine Particles
(PM2.5)'' (July 21, 2011) (available at https://www3.epa.gov/scram001/guidance/clarification/pm25trade.pdf).
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[[Page 1018]]
By revising the IBR date of 40 CFR 52.21 to July 15, 2017,
Jefferson County's August 25, 2017, and March 15, 2018, SIP revisions
capture the repeal of this grandfathering provision as promulgated by
EPA on May 18, 2011 (76 FR 28646). However, this grandfathering
provision was never incorporated into the Jefferson County portion of
the Kentucky SIP, and so this action does not change the SIP for this
grandfathering provision. Further details can be found in Section III
below, under our analysis of the Commonwealth's submittal.
2. PM2.5 Condensables Correction Rule
Among the changes included in the 2008 NSR PM2.5 Rule
mentioned in Section II.A.1 above, EPA revised the definition of
``regulated NSR pollutant'' for PSD and NNSR to add a paragraph
providing that ``particulate matter (PM) emissions, PM2.5
emissions and PM10 emissions shall include gaseous emissions
from a source or activity which condense to form particulate matter at
ambient temperatures'' and that on or after January 1, 2011, ``such
condensable particulate matter shall be accounted for in applicability
determinations and in establishing emissions limitations for PM,
PM2.5 and PM10 in permits.'' See 73 FR 28321 at
28348 (May 16, 2008). A similar paragraph added to the NNSR rule did
not include ``particulate matter (PM) emissions.'' See 40 CFR
51.165(a)(1)(xxxvii)(D).
On October 25, 2012 (77 FR 65107), EPA took final action to amend
the definition, promulgated in the 2008 NSR PM2.5 Rule, of
``regulated NSR pollutant'' contained in the PM condensable provision
at 40 CFR 51.166(b)(49)(vi), 52.21(b)(50)(i) and Appendix S to 40 CFR
51 (hereinafter referred to as the PM2.5 Condensables
Correction Rule). The PM2.5 Condensables Correction Rule
removed the inadvertent requirement in the 2008 NSR PM2.5
Rule that the measurement of condensable particulate matter be included
as part of the measurement and regulation of ``particulate matter
emissions'' under the PSD program. The term ``particulate matter
emissions'' includes only filterable particles that are larger than
PM2.5 and larger than PM10.
By revising the IBR date of 40 CFR 52.21 to July 15, 2017,
Jefferson County's August 25, 2017, and March 15, 2018, SIP revisions
capture the PM2.5 Condensables Correction Rule promulgated
by EPA on October 25, 2012 (77 FR 65107).
3. PM2.5 PSD-Increment-SILs-SMC Rule
On October 20, 2010 (75 FR 64863), EPA published a final rulemaking
entitled ``Prevention of Significant Deterioration (PSD) for
Particulate Matter Less than 2.5 Micrometers (PM2.5),''
amending the requirements for PM2.5 under the federal PSD
program (also referred to as the PM2.5 PSD-Increments-SILs-
SMC Rule). The October 20, 2010, final rulemaking established the
following: (1) PM2.5 increments pursuant to section 166(a)
of the CAA to prevent significant deterioration of air quality in areas
meeting the NAAQS; (2) PM2.5 Significant Impact Levels
(SILs) for PSD and NNSR; and (3) Significant Monitoring Concentration
(SMC) for PSD purposes.
Subsequently, in response to a challenge to the PM2.5
SILs and SMC provisions of the PM2.5 PSD-Increment-SILs-SMC
Rule, the D.C. Circuit vacated and remanded to EPA the portions of the
rule addressing PM2.5 SILs, except for the PM2.5
SILs promulgated in EPA's NNSR rules at 40 CFR 51.165(b)(2). See Sierra
Club v. EPA, 705 F.3d 458, 469 (D.C. Cir. 2013). The D.C. Circuit also
vacated the parts of the rule establishing a PM2.5 SMC for
PSD purposes. Id. EPA removed these vacated provisions in a December 9,
2013 (78 FR 73698), final rule.
The PM2.5 SILs promulgated in EPA's NNSR regulations at
40 CFR 51.165(b)(2) were not vacated by the D.C. Circuit because unlike
the SILs promulgated in the PSD regulations (40 CFR 51.166, 52.21), the
SILs promulgated in the NNSR regulations at 40 CFR 51.165(b)(2) do not
serve to exempt a source from conducting a cumulative air quality
analysis. Rather, the SILs promulgated at 40 CFR 51.165(b)(2) establish
levels at which a proposed new major source or major modification
located in an area designated as attainment or unclassifiable for any
NAAQS would be considered to cause or contribute to a violation of a
NAAQS in any area. For this reason, the D.C. Circuit left the
PM2.5 SILs at 40 CFR 51.165(b)(2) in place.
By revising the IBR date of 40 CFR 52.21 to July 15, 2017,
Jefferson County's August 25, 2017, and March 15, 2018, SIP revisions
incorporate the PM2.5 increment and do not incorporate the
PM2.5 SILs and SMC provisions for PSD permitting that were
vacated and remanded elements of the PM2.5 PSD-Increment-
SILs-SMC Rule.
B. Greenhouse Gases and Plantwide Applicability Limits
On January 2, 2011, emissions of GHGs were, for the first time,
covered by the PSD and title V operating permit programs.\7\ To
establish a process for phasing in the permitting requirements for
stationary sources of GHGs under the CAA PSD and title V programs, on
June 3, 2010 (75 FR 31514), EPA published a final rule entitled
``Prevention of Significant Deterioration and Title V Greenhouse Gas
Tailoring Rule'' (hereinafter referred to as the GHG Tailoring Rule).
In Step 1 of the GHG Tailoring Rule, which began on January 2, 2011,
EPA limited application of PSD and title V requirements to sources of
GHG emissions only if they were subject to PSD or title V ``anyway''
due to their emissions of pollutants other than GHGs. These sources are
referred to as ``anyway sources.''
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\7\ See the rule entitled ``Reconsideration of Interpretation of
Regulations that Determine Pollutants Covered by Clean Air Act
Permitting Programs,'' Final Rule, 75 FR 17004 (April 2, 2010).
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In Step 2 of the GHG Tailoring Rule, which applied as of July 1,
2011, the PSD and title V permitting requirements applied to some
sources that were classified as major sources based solely on their GHG
emissions or potential to emit GHGs. Step 2 also applied PSD permitting
requirements to modifications of otherwise major sources that would
increase only GHG emissions above the level in EPA regulations. EPA
generally described the sources covered by PSD during Step 2 of the GHG
Tailoring Rule as ``Step 2 sources'' or ``GHG-only sources.''
Subsequently, EPA published the GHG Step 3 Rule on July 12, 2012
(77 FR 41051). In this rule, EPA decided against further phase-in of
the PSD and title V requirements for sources emitting lower levels of
GHG emissions. Thus, the thresholds for determining PSD applicability
based on emissions of GHGs remained the same as established in Step 2
of the Tailoring Rule.
In addition, the July 12, 2012 (77 FR 41051), final rule revised
EPA regulations under 40 CFR part 52 for establishing plant-wide
applicability limits (PALs) for GHG emissions. A PAL establishes a
site-specific plantwide emission level for a pollutant that allows the
source to make changes at the facility without triggering the
requirements of the PSD program, provided that emissions do not exceed
the PAL level. Under EPA's interpretation of the federal PAL
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provisions, such PALs are already available under PSD for non-GHG
pollutants and for GHGs on a mass basis. EPA revised the PAL
regulations to allow for GHG PALs to be established on a carbon dioxide
equivalent (CO2e) \8\ basis as well. EPA finalized these
changes in an effort to streamline federal and SIP PSD permitting
programs by allowing sources and permitting authorities to address GHGs
using PALs in a manner similar to the use of PALs for non-GHG
pollutants.
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\8\ CO2 equivalent (CO2e) emissions refers
to emissions of six recognized GHGs other than CO2 which
are scaled to equivalent CO2 emissions by relative global
warming potential values, then summed with CO2 to
determine a total equivalent emissions value. See 40 CFR
51.166(48)(ii) and 52.21(49)(ii).
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On June 23, 2014, the U.S. Supreme Court addressed the application
of stationary source permitting requirements to GHG emissions in
Utility Air Regulatory Group (UARG) v. EPA, 134 S. Ct. 2427 (2014). The
Supreme Court upheld EPA's regulation of Step 1--or ``anyway''
sources--but held that EPA may not treat GHGs as air pollutants for the
purposes of determining whether a source is a major source (or a
modification thereof) and thus require the source to obtain a PSD or
title V permit. Therefore, the Court invalidated PSD and title V
permitting requirements for Step 2 sources.
In accordance with the Supreme Court decision, on April 10, 2015,
the D.C. Circuit issued an Amended Judgment vacating the regulations
that implemented Step 2 of the GHG Tailoring Rule, but not the
regulations that implement Step 1 of the GHG Tailoring Rule. Coalition
for Responsible Regulation, Inc. v. EPA, 606 Fed. Appx. 6, 7 (D.C. Cir.
2015). With respect to Step 2 sources, the D.C. Circuit's Judgment
vacated EPA regulations under review (including 40 CFR 51.166(b)(48)(v)
and 40 CFR 52.21(b)(49)(v)) ``to the extent they require a stationary
source to obtain a PSD permit if greenhouse gases are the only
pollutant, (i) that the source emits or has the potential to emit above
the applicable major source thresholds, or (ii) for which there is a
significant emissions increase from a modification.'' Id. at 7-8.
EPA promulgated a final rule on August 19, 2015, entitled
``Prevention of Significant Deterioration and Title V Permitting for
Greenhouse Gases: Removal of Certain Vacated Elements.'' See 80 FR
50199 (August 19, 2015). The rule removed from the federal regulations
the portions of the PSD permitting provisions for Step 2 sources that
were vacated by the D.C. Circuit (i.e., 40 CFR 51.166(b)(48)(v) and
52.21(b)(49)(v)). EPA therefore no longer has the authority to conduct
PSD permitting for Step 2 sources, nor can EPA approve provisions
submitted by a state for inclusion in its SIP providing this authority.
In addition, on October 3, 2016 (81 FR 68110), EPA proposed to revise
provisions in the PSD permitting regulations applicable to GHGs to
fully conform with UARG and the Amended Judgment, but those revisions
have not been finalized.
By revising the IBR date of 40 CFR 52.21, Jefferson County's August
25, 2017, and March 15, 2018, SIP revisions capture the GHG Tailoring
Rule as of the updated effective date of July 15, 2017.\9\
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\9\ As noted earlier in footnote #3, Jefferson County has an
``automatic rescission clause'' approved into the SIP at Regulation
2.05, which provides that in the event that EPA or a federal court
stays, vacates, or withdraws any section or subsection of 40 CFR
52.21, that section or subsection shall automatically be deemed
stayed, vacated or withdrawn from Jefferson County's SIP-approved
PSD program at Regulation 2.05.
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C. Grandfathering Provisions for the 2012 Primary Annual PM2.5 and 2015
Ozone NAAQS
Pursuant to section 165(a)(3)(B) of the CAA and the implementing
PSD regulations at 40 CFR 52.21(k)(1) and 51.166(k)(1), EPA requires
that PSD permit applications include a demonstration that emissions
from the proposed facility will not cause or contribute to a violation
of any NAAQS that is in effect on the date the PSD permit is issued. On
January 15, 2013 (78 FR 3086), and October 26, 2015 (80 FR 65292), EPA
published new primary annual PM2.5 NAAQS and 8-hour ozone
NAAQS, respectively. In these two revisions to the NAAQS, EPA
established limited grandfathering provisions for certain PSD permit
applications pending on the effective date of these revised NAAQS.
Additionally, the revisions to both standards included the option to
allow states and other air agencies that issue PSD permits under SIP-
approved PSD programs to adopt a comparable grandfathering provision,
as long as the provision is at least as stringent as that added to 40
CFR 51.166.
For the 2012 primary annual PM2.5 NAAQS, sources with
PSD permit applications that meet one of the following conditions would
be allowed to give a demonstration that the source requesting the
permit does not cause or contribute to a violation of the NAAQS based
on the previous 1997 primary annual PM2.5 standard instead
of the revised 2012 standard: (1) Applications that have been
determined to be complete on or before December 14, 2012; or (2)
applications for which public notice of a draft permit or preliminary
determination has been published as of the effective date of the
revised 2012 PM2.5 NAAQS (March 18, 2013).
For the 2015 8-hour ozone NAAQS revision, sources with PSD permit
applications that meet one of the following conditions would be allowed
to give a demonstration that the source requesting the permit does not
cause or contribute to a violation of the NAAQS based on the previous
2008 8-hour ozone standard, instead of the revised 2015 standard: (1)
Applications for which the reviewing authority has formally determined
that the application is complete on or before October 1, 2015; or (2)
applications for which the reviewing authority has first published a
public notice of the draft permit or preliminary determination before
the effective date of the revised 2015 8-hour ozone NAAQS (December 28,
2015).
By revising the IBR date of 40 CFR 52.21 to July 15, 2017,
Jefferson County's August 25, 2017, and March 15, 2018, SIP revisions
incorporate both the 2012 annual PM2.5 and 2015 8-hour ozone
grandfathering provisions for the PSD program.
III. Analysis of State Submittal
Jefferson County currently has a SIP-approved NSR program for PSD
under Regulation 2.05 of the Louisville Metro Air Pollution Control
District regulations, which adopts the necessary provisions by way of
an IBR of the federal PSD regulations found at 40 CFR 52.21. The
current SIP-approved version of Regulation 2.05 is version 10, which
contains an IBR date of July 1, 2010. The August 25, 2017, SIP revision
requests for EPA to adopt version 12 of Regulation 2.05 into the SIP,
which updates the IBR date to July 15, 2016.\10\
[[Page 1020]]
Subsequently, the March 15, 2018, SIP revision requests for EPA to
adopt version 13 of Regulation 2.05 into the SIP, which updates the IBR
date to July 15, 2017.
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\10\ There is a redline-strikeout for version 11 of Regulation
2.05 in the Docket for this proposed rulemaking. EPA never adopted
version 11 of Regulation 2.05 into the SIP. However, version 11 was
previously submitted to EPA for adoption on December 21, 2016. In
version 11 of Regulation 2.05, Jefferson County proposed to
eliminate the IBR date for 40 CFR 52.21, and substitute it with a
reference to the specified version of 52.21 found in Regulation 1.15
of the Louisville Metro Air Pollution Control District regulations.
However, Regulation 1.15 is not a SIP-approved regulation. To
prevent this gap, Jefferson County withdrew version 11 of Regulation
2.05 from EPA consideration. In the cover letter for the August 25,
2017, SIP revision being proposed for approval in this notice,
Jefferson County withdrew the request to adopt version 11 from their
December 21, 2016, submittal, but specified that the redline
strikeout for that version would remain in the submittal for
reference purposes.
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As mentioned in Section I, the effects of changing the IBR date for
40 CFR 52.21, include the following changes: (1) Adopting
``increments'' for the PM2.5 NAAQS; (2) adopting updated
GHGs provisions; (3) incorporating grandfathering provisions for the
2012 primary annual PM2.5 NAAQS and the 2015 8-hour ozone
NAAQS, as well as adopting the repealed grandfathering provisions for
the old PM2.5 NAAQS; and (4) incorporating a correction to
the definition of ``regulated NSR pollutant'' for PSD. These changes
are discussed in more detail below.
First, Jefferson County's IBR update adopts PSD provisions
promulgated in the PM2.5 PSD Increment-SILs-SMC Rule, in
particular the PSD increments for PM2.5 annual and 24-hour
NAAQS. These provisions include: (1) The PM2.5 increments as
promulgated at 40 CFR 52.21(c)(1) and (p)(5) (for Class I Variances);
and (2) amendments to the terms ``major source baseline date'' (at 40
CFR 52.21(b)(14)(i)(c)), ``minor source baseline date'' (including
establishment of the ``trigger date'') (at section 52.21(b)(14)(ii)(c))
and ``baseline area'' (as amended at 52.21(b)(15)(i)). These changes
provide for the implementation of the PM2.5 PSD increments
for the PM2.5 NAAQS in Jefferson County's PSD program.
As mentioned above in Section II.A.3, the PM2.5 SILs and
SMC portion of the PM2.5 PSD-Increment-SILs-SMC Rule has
since been vacated by the D.C. Circuit's January 22, 2013, decision
(Sierra Club v. EPA, 705 F.3d 458), and EPA subsequently removed the
vacated provisions from 40 CFR 52.21 (78 FR 73698). For this reason,
Jefferson County's IBR updates simply adopt the increments portion of
the PM2.5 PSD-Increment-SILs-SMC Rule. EPA has made the
preliminary determination to approve the aforementioned PSD permitting
provisions promulgated in the PM2.5 PSD Increment-SILs-SMC
Rule into the Jefferson County portion of the Kentucky SIP.
Second, Jefferson County's IBR update adds updated PSD permitting
requirements for GHGs. This includes the incorporation of the GHG Step
3 Rule provisions, which will allow GHG-emitting sources to obtain PALs
for their GHG emissions on a CO2e basis. As explained in
Section II.B above, a PAL establishes a site-specific plantwide
emission level for a pollutant, which allows the source to make changes
to individual units at the facility without triggering the requirements
of the PSD program, provided that facility-wide emissions do not exceed
the PAL.
Additionally, the federal GHG PAL regulations include provisions
that apply solely to GHG-only, or Step 2, sources. Some of these
provisions may no longer be applicable in light of the Supreme Court's
decision in UARG and the D.C. Circuit's Amended Judgment. Since the
Supreme Court has determined that sources and modifications may not be
defined as ``major'' solely on the basis of GHGs emitted or increased,
PALs for GHGs may no longer have value in some situations where a
source might have triggered PSD based on GHG emissions alone. EPA has
proposed action in an October 3, 2016 (81 FR 68110), proposed rule to
clarify the GHG PAL rules. However, PALs for GHGs may still have a role
to play in determining whether a source that is already subject to PSD
for a pollutant other than GHGs should also be subject to PSD for GHGs.
The existing GHG PALs regulations do not add new requirements for
sources or modifications that only emit or increase greenhouse gases
above the major source threshold or the 75,000 ton per year GHG level
in 40 CFR 52.21(b)(49)(iv). Rather, the PAL provisions provide
increased flexibility to sources that wish to address their GHG
emissions in a PAL.
EPA discussed the effects of PALs in the Supplemental Environmental
Analysis of the Impact of the 2002 Final NSR Improvement Rules
(November 21, 2002) (Supplemental Analysis). The Supplemental Analysis
explained, ``[t]he 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 at 6;
see also 76 FR 49313, 49315 (August 10, 2011). Since this flexibility
may still be valuable to sources in at least one context described
above, EPA believes that it is appropriate to propose approval of these
provisions into the Jefferson County portion of the Kentucky SIP.
Moreover, Jefferson County's IBR update incorporates the Federal
PSD provisions as of July 15, 2017, which is after the UARG decision,
the D.C. Circuit's Amended Judgment, and EPA's August 19, 2015, Good
Cause GHG Rule. Therefore, Jefferson County's incorporation includes
fixes to the Federal rules to discontinue regulation of GHG-only, or
Step 2, sources. EPA has preliminarily concluded that approving the
updated effective date into the Jefferson County portion of the
Kentucky SIP will not interfere with any applicable requirement
concerning attainment and reasonable further progress (as defined in
section 171), or any other applicable requirement of the CAA.
Third, Jefferson County's IBR update incorporates revisions to the
PSD permitting requirements for both the 2012 primary annual
PM2.5 NAAQS, as promulgated on January 15, 2013 (78 FR
3086), and the 2015 ozone 8-hour NAAQS, as promulgated on October 26,
2015 (80 FR 65292). The new incorporation by reference date adds
limited grandfathering provisions for both standards that allows
sources who are eligible to meet the previous standard for these NAAQS
instead of the newly promulgated standards. EPA is proposing to approve
these grandfathering provisions of the 2012 primary annual
PM2.5 and the 2015 8-hour ozone NAAQS, as incorporated by
reference. EPA has preliminarily concluded that this change will not
interfere with any applicable requirement concerning attainment and
reasonable further progress (as defined in section 171), or any other
applicable requirement of the CAA. The rationale for allowing states to
include these grandfathering provisions into their SIPs is discussed in
detail at 78 FR 3086 (January 15, 2013) (2012 primary annual
PM2.5 NAAQS) and 80 FR 65292 (October 26, 2015) (2015 8-hour
ozone NAAQS).
In addition, the IBR date change captures the removal of the
PM2.5 grandfathering provision contained in the federal PSD
program at 40 CFR 52.21(i)(1)(xi), as promulgated by EPA on May 18,
2011 (76 FR 28646), which ended the use of the 1997 PM10
Surrogate Policy for PSD permits. Although the July 1, 2010, effective
date in Jefferson County's current SIP-approved version of Regulation
2.05 (version 10) did capture the original incorporation of this
grandfathering provision, EPA's approval of this version was done after
the May 18, 2011 repeal of the 1997 PM10 Surrogate Policy.
See 77 FR 62150 (October 12, 2012). Because of this, EPA specified in
the October 12, 2012 final rulemaking that it was not taking action to
approve this provision. With the IBR date change proposed for approval
now, this provision would now be removed from the Jefferson County PSD
programs, but because EPA never approved this change into the Jefferson
County portion of the Kentucky SIP, no action is needed to remove it
from the SIP.
Lastly, Jefferson County's IBR update adopts changes made by EPA in
the
[[Page 1021]]
PM2.5 Condensables Correction Rule as promulgated on October
25, 2012 (77 FR 65107). As explained in Section II.A.2, the Federal
rule corrected an inadvertent error in the definition of ``regulated
NSR pollutant'' at 40 CFR 52.21(b)(50). In the Condensable Correction
Rule, EPA explained that requiring inclusion of condensable PM in
measurements of ``particulate matter emissions'' would have little (if
any) effect on preventing significant air quality deterioration or on
efforts to attain the primary and secondary PM NAAQS. Therefore, EPA
has preliminarily concluded that this change to Jefferson County's
portion of the Kentucky SIP is consistent with the current Federal
rule, will not interfere with attainment or maintenance of the PM
NAAQS, any applicable requirement concerning attainment and reasonable
further progress (as defined in section 171), or any other applicable
requirement of the CAA, and is proposing to approve these revisions
into the Jefferson County portion of the Kentucky SIP.
IV. 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, EPA is proposing to incorporate by
reference Jefferson County's Regulation 2.05, Prevention of Significant
Deterioration of Air Quality, version 13, which is intended to make the
Jefferson County PSD permitting regulation consistent with the federal
requirements and is state effective January 17, 2018. EPA has made, and
will continue to make, these materials generally available through
www.regulations.gov and at the EPA Region 4 office (please contact the
person identified in the FOR FURTHER INFORMATION CONTACT section of
this preamble for more information).
V. Proposed Action
EPA is proposing to approve changes to the Jefferson County portion
of the Kentucky SIP that were provided to EPA through two letters dated
August 25, 2017, and March 15, 2018, to update the IBR date for the
Federal requirements of the PSD program found at 40 CFR 52.21. This SIP
revision is intended to make Jefferson County's PSD permitting rule
consistent with the Federal requirements, as promulgated by EPA. The
August 25, 2017, SIP revision updates the IBR date at Jefferson
County's Regulation 2.05--Prevention of Significant Deterioration of
Air Quality, to July 15, 2016, for the federal PSD permitting
regulations at 40 CFR 52.21. Subsequently, the March 15, 2018, SIP
revision updates the IBR date at Jefferson County's Regulation 2.05 to
July 15, 2017.
VI. 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. See 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. This 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:
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 13563 (76 FR 3821, January 21, 2011);
Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866;
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).
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 as specified by Executive Order 13175 (65
FR 67249, November 9, 2000), nor will it impose substantial direct
costs on tribal governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Lead, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides,
Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: December 17, 2018.
Mary S. Walker,
Acting Regional Administrator, Region 4.
[FR Doc. 2019-00781 Filed 1-31-19; 8:45 am]
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