[Federal Register Volume 84, Number 97 (Monday, May 20, 2019)]
[Proposed Rules]
[Pages 22771-22774]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-10344]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2017-0758; FRL-9993-73-Region 4]


Air Plan Approval; Kentucky: Jefferson County Definitions and 
Federally Enforceable District Origin Operating Permits

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve State Implementation Plan (SIP) revisions submitted under cover 
letters dated December 21, 2016, and August 25, 2017, by the 
Commonwealth of Kentucky, through the Energy and Environment Cabinet 
(Cabinet). The proposed SIP revisions were submitted by the Cabinet on 
behalf of the Louisville Metro Air Pollution Control District (LMAPCD 
or District) and make amendments to Jefferson County's regulations 
regarding definitions and the federally enforceable district origin 
operating permit (FEDOOP) program. EPA is proposing to approve the 
revisions modifying these regulations pursuant to the Clean Air Act 
(CAA or Act).

DATES: Comments must be received on or before June 19, 2019.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2017-0758 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 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: D. Brad Akers, Air Regulatory 
Management Section, Air Planning and Implementation Branch, Air and 
Radiation Division, U.S. Environmental Protection Agency, Region 4, 61 
Forsyth Street, SW, Atlanta, Georgia 30303-8960. Mr. Akers can be 
reached via telephone at 404-562-9089 or 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 letters dated 
December 21, 2016 and August 25, 2017.1 2 Both submittals 
make changes to Regulation 1.02,--``Definitions,'' to incorporate 
various new definitions and revise existing definitions. The August 25, 
2017, submittal also makes changes to Regulation 2.17,--``Federally 
Enforceable District Origin Operating Permits [FEDOOP],'' to make 
clarifying and administrative edits to this portion of the minor source 
operating permit program. The changes addressed in this proposed 
rulemaking also correct typographical errors, make minor administrative 
and clarifying edits, and

[[Page 22772]]

recodify sections of the existing rules. In this action, EPA is 
proposing to approve these SIP revisions that make changes to Jefferson 
County's definitions and FEDOOP regulations because they are consistent 
with the CAA.
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    \1\ EPA notes that the Agency received the SIP revision dated 
August 25, 2017 on August 29, 2017.
    \2\ 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.'' 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, we refer throughout this notice to 
regulations contained in the Jefferson County portion of the 
Kentucky SIP as the ``Jefferson County'' regulations.
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    At this time, EPA is not acting on the following changes included 
under the same August 25, 2017, cover letter: Regulation 2.02,--``Air 
Pollution Regulation Requirements and Exemptions''; and Regulation 
2.03--``Permit Requirements--Non-Title V Construction and Operating 
Permits and Demolition/Renovation Permits,'' renamed as ``Authorization 
to Construct or Operate; Demolition/Renovation Notices and Permit 
Requirements.'' EPA will address these changes to the Jefferson County 
regulations governing minor source operating and construction 
permitting and major source permitting in a separate action. EPA took 
final action to approve the changes to Regulation 2.05,--``Prevention 
of Significant Deterioration of Air Quality,'' included under the same 
cover letter, on April 10, 2019 (84 FR 14268). The changes to 
Regulation 3.01,--``Ambient Air Quality Standards,'' included under the 
same cover letter, were approved on May 11, 2018 (83 FR 21907).

II. Analysis of State's Submittals

A. Regulation 1.02,--``Definitions''

1. August 25, 2017: Regulation 1.02, Version 13
    This SIP revision includes several changes to the definitions as 
follows: (1) Adds a definition for ``administrative permit revision''; 
(2) adds a definition for ``emissions unit'' or ``facility''; (3) adds 
a definition for ``insignificant activity''; (4) adds a definition for 
``minor permit revision''; (5) adds a definition for ``minor source''; 
(6) adds a definition for ``regulated air pollutant''; (7) adds a 
definition for ``responsible official''; (8) adds a definition for 
``significant permit revision''; (9) adds a definition for ``trivial 
activities''; (10) adds a definition for ``twelve month rolling 
period'' or ``12-month rolling period''; and (11) makes other 
clarifying and administrative edits to definitions throughout the 
Section, including renumbering. Several of these definitions are 
discussed in further detail below.
    The definitions of ``administrative permit revision,'' ``minor 
permit revision,'' and ``significant permit revision'' included in 
Regulation 1.02 generally mirror the federal provisions for 
``administrative permit amendments,'' ``minor permit modification 
procedures,'' and ``significant modification procedures'' at 40 CFR 
70.7(d)(1), 70.7(e)(2)(i)(A), and 70.7(e)(4)(i), respectively, which 
are part of the title V permitting program for major operating 
permits.\3\ The District's added terms are used in SIP-approved 
Regulation 2.07,--``Public Notification for Title V, PSD, and Offset 
Permits; SIP Revisions; and Use of Emission Reduction Credits,'' which 
sets forth permitting public participation procedures. EPA notes that 
these public participation procedures are consistent with applicable 
Federal requirements.
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    \3\ LMAPCD has equivalent definitions in its non-SIP Regulation 
2.16,--``Title V Operating Permits,'' which governs the title V 
(part 70) operating permit program for major sources.
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    The August 25, 2017, submittal also adds the definitions for 
``insignificant activities'' and ``trivial activities.'' Specifically, 
the submittal adds to Regulation 1.02 the definition of ``insignificant 
activities'' to list activities already exempted from permitting 
requirements under the current, SIP-approved version of Regulation 
2.02, and to make that definition consistent with the District's 
definitions for its title V permitting program at Regulation 2.16--
``Title V Operating Permits.'' The full list of insignificant 
activities is included for SIP approval as Appendix A to Regulation 
1.02. The submittal also adds the definition of ``trivial activities'' 
to provide the District with authority to maintain a list of 
inconsequential activities.\4\ As discussed in greater detail in 
Section II.B below, the effect of these revisions--in conjunction with 
proposed revisions to Regulation 2.17--is to require that an applicant 
for a FEDOOP must identify all insignificant activities in its permit 
application, but to exempt trivial activities from the application 
requirements.\5\ EPA believes these changes will not interfere with any 
applicable requirement concerning attainment and reasonable further 
progress (as defined in section 171 of the Act), or any other 
applicable requirement.
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    \4\ The District's current list of ``trivial activities'' is 
available at https://louisvilleky.gov/sites/default/files/air_pollution_control_district/documents/forms/trivial.pdf, and is 
included in the docket for this action.
    \5\ EPA notes that the terms ``insignificant activities'' and 
``trivial activities'' are also referenced in proposed revisions to 
Regulations 2.02 and 2.03, which are also included in the August 21, 
2017, submittal. As explained above, EPA will act on those changes 
in a separate action.
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    The August 25, 2017, SIP revision also adds a definition for 
``minor source'' at Regulation 1.02, Section 1.44. Under that 
definition, minor sources are those sources that are subject to neither 
Regulation 2.16 (for the title V program), nor Regulation 2.17 (for the 
FEDOOP program), meaning the sources do not have potential to emit 
(PTE) above the major source thresholds for criteria air pollutants and 
their precursors nor hazardous air pollutants. This is considered a 
``true'' minor source, whereas minor sources that would have a PTE 
above major source thresholds except for some federally enforceable 
limit, such as those sources subject to Regulation 2.17, are generally 
referred to as ``synthetic minor sources.''
    The August 25, 2017, submittal also adds a definition for 
``regulated air pollutant'' at Regulation 1.02, Section 1.69, which 
mirrors the federal definition for the title V program at 40 CFR 70.2, 
as included in Jefferson County's EPA-approved title V program at 
Regulation 2.16. The definition included at Regulation 1.02 describes 
which pollutants are regulated by the Act. This definition is also 
largely consistent with the definition of ``regulated NSR pollutant'' 
in EPA's major source permitting regulations, but is not meant to 
satisfy the same purpose.\6\
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    \6\ EPA has proposed to approve the definition of ``regulated 
NSR pollutant,'' as incorporated by reference in Regulation 2.05, as 
of February 1, 2019. See 84 FR 1016.
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    Under the current federally-approved SIP, the definition for 
``regulated air pollutant'' is not referenced in any other regulation. 
However, in its August 25, 2017, submittal, the District requests that 
EPA incorporate a revision to Regulation 2.03 that would reference the 
definition of ``regulated air pollutant'' for purposes of determining 
whether a source qualifies for a combined construction and operation 
permit. As explained above, EPA will act on changes to Regulation 2.03 
in a later action and will analyze the definition of ``regulated air 
pollutant'' as it applies to Regulation 2.03 at that time.
    The submittal also revises the definition for ``construction'' to 
exclude the term ``modification.'' This change is made because the term 
``modification'' is defined elsewhere in Regulation 1.02 and appears 
redundant in the definition of ``construction.'' Moreover, because the 
District's regulations otherwise prohibit both the construction and 
modification of an affected facility without a permit, EPA does not 
believe that this change will impact the implementation of the 
District's minor NSR program.\7\
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    \7\ The Jefferson County regulations includes separate 
definitions of ``construction'' applicable to major sources. First, 
the regulations include a definition at Regulation 2.04,--
``Construction or Modification of Major Sources in or Impacting upon 
Non-Attainment Areas (Emission Offset Requirements)'' that is 
consistent with the federal definition at 40 CFR 
51.165(a)(1)(xviii). Additionally, the District incorporates by 
reference the federal definition of ``construction,'' codified at 40 
CFR 52.21(b)(8), at Regulation 2.05,--``Prevention of Significant 
Deterioration of Air Quality'' for major NSR permitting.

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[[Page 22773]]

    LMAPCD also adds a definition for ``emissions unit'' or 
``facility'' and ``responsible official.'' These terms are consistent 
with EPA's definitions for the title V program at 40 CFR 70.2 for 
``emissions unit'' and ``responsible official,'' respectively. Finally, 
there are several administrative edits made to definitions throughout 
Regulation 1.02 to renumber existing definitions, correct typographical 
errors, and make formatting changes. EPA preliminarily finds that the 
changes to Regulation 1.02, as discussed herein, are consistent with 
the CAA.
2. December 21, 2016 Submittal: Regulation 1.02, Version 14
    The December 21, 2016, submittal transmits Regulation 1.02, version 
14 to EPA for approval.\8\ The only changes made to Regulation 1.02 in 
this submittal are to incorporate changes to the definition of volatile 
organic compounds (VOC), and to make other administrative edits to 
definitions throughout the Section. Tropospheric ozone, commonly known 
as smog, occurs when VOC and nitrogen oxides (NOX) react in 
the atmosphere in the presence of sunlight. Because of the harmful 
health effects of ozone, EPA and state governments implement rules to 
limit the amount of certain VOC and NOX that can be released 
into the atmosphere. VOC have different levels of reactivity; they do 
not react at the same speed or do not form ozone to the same extent. 
Section 302(s) of the CAA specifies that EPA has the authority to 
define the meaning of ``VOC,'' and hence what compounds shall be 
treated as VOC for regulatory purposes.
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    \8\ The December 21, 2016, SIP revision includes version 14 of 
Regulation 1.02, but was submitted before version 13 was submitted. 
Regulation 1.02, version 13 was submitted on August 25, 2017. The 
December 21, 2016, submittal includes two separate redline/strikeout 
documents for Regulation 1.02. The first document, beginning on page 
13 of the pdf submittal, shows all changes made in versions 11, 12, 
13, and 14 of that rule. The second document, beginning on page 27 
of the pdf submittal, shows only those changes made in version 14. 
EPA previously approved versions 11 and 12. See 81 FR 87815 
(December 6, 2016); 82 FR 35101 (July 28, 2017). Accordingly, we are 
only proposing to approve changes included in versions 13 and 14 of 
Regulation 1.02--as submitted on August 25, 2017, and December 21, 
2016, respectively--in this action.
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    EPA determines whether a given carbon compound has ``negligible'' 
reactivity by comparing the compound's reactivity to the reactivity of 
ethane. It has been EPA's policy that compounds of carbon with 
negligible reactivity need not be regulated to reduce ozone and should 
be excluded from the regulatory definition of VOC. See 42 FR 35314 
(July 8, 1977), 70 FR 54046 (September 13, 2005). EPA lists these 
compounds in its regulations at 40 CFR 51.100(s) and excludes them from 
the definition of VOC. The chemicals on this list are often called 
``negligibly reactive.'' EPA may periodically revise the list of 
negligibly reactive compounds to add or delete compounds.
    On November 29, 2004 (69 FR 69298), and August 1, 2016 (81 FR 
50330), EPA issued final rules revising the definition of VOC by adding 
new compounds, t-Butyl acetate and 1,1,2,2-Tetrafluoro-1-(2,2,2-
trifluoroethoxy) ethane (also denoted as HFE-347pcf2), to the list of 
those considered to be negligibly reactive compounds. Subsequently, on 
February 25, 2016 (81 FR 9339), EPA issued a final rule removing 
recordkeeping, emissions reporting, photochemical dispersion modeling, 
and inventory requirements for t-Butyl acetate. LMAPCD's SIP-approved 
definition currently includes t-butyl acetate as a compound exempted 
from the definition of VOC. The December 21, 2016, SIP revision removes 
the recordkeeping, emissions reporting, photochemical dispersion 
modeling, and inventory requirements for t-Butyl acetate, consistent 
with EPA's February 25, 2016, final rule (81 FR 9339). The December 21, 
2016, SIP revision also adds 1,1,2,2-Tetrafluoro-1-(2,2,2-
trifluoroethoxy) ethane, also known as HFE-347pcf2, to the list of 
negligibly reactive compounds to be consistent with federal 
regulations. These compounds are excluded from the VOC definition on 
the basis that they make a negligible contribution to tropospheric 
ozone formation.
    Pursuant to CAA section 110(l), the Administrator shall not approve 
a revision of a plan if the revision would interfere with any 
applicable requirement concerning attainment and reasonable further 
progress, or any other applicable requirement of the Act. Jefferson 
County's addition of exemptions from the definition of VOCs, and the 
removal of recordkeeping, emissions reporting, photochemical dispersion 
modeling, and inventory requirements for t-Butyl acetate are approvable 
under section 110(l) because they reflect changes to federal 
regulations based on findings that: The exempted compounds are 
negligibly reactive; for t-Butyl acetate, that there was no evidence it 
was being used at levels that cause concern for ozone formation; and, 
the data that had been collected under the recordkeeping, emissions 
reporting, photochemical dispersion modeling, and inventory 
requirements had proven to be of limited utility in judging its 
cumulative impact. For further details and justification, see EPA's 
February 25, 2016 and August 1, 2016, rulemakings and the docket 
information supporting those prior actions.

B. Regulation 2.17,--``Federally Enforceable District Origin Operating 
Permit (FEDOOP) Program''

    The August 25, 2017, submittal makes several changes to Regulation 
2.17,--``Federally Enforceable District Origin Operating Permits.'' 
This program is intended to regulate the issuance of non-title V 
permits that include a federally enforceable permit condition, limit, 
or provision. This is generally used for sources which would otherwise 
trigger major source requirements, especially for title V purposes, 
except for the voluntary application of federally enforceable 
conditions that place limitations on emissions, materials, or 
production rates such that the PTE is held below major source 
applicability. The most significant changes included in the August 25, 
2017, submittal are to include provisions for Section 4,--``Permit 
Applications,'' to describe the required content of FEDOOP 
applications, including the treatment of ``insignificant activities'' 
and ``trivial activities.''
    As noted in Section II.A of this proposed rulemaking, the 
District's August 25, 2017, revision to Regulation 1.02 includes the 
addition of definitions for ``insignificant activities'' and ``trivial 
activities,'' as well as an Appendix listing applicable insignificant 
activities. Here, the District also requests a change to its FEDOOP 
rule at Regulation 2.17, Section 4.2, which requires permit applicants 
to include insignificant activities in the FEDOOP application. Section 
4.2 also allows the applicant to exclude information that is not needed 
to determine: Which applicable requirements apply; whether the activity 
complies with applicable requirements; and, whether the stationary 
source is major. However, the applicant must include information 
related to any applicable restriction on the size of production rate of 
the affected facility. In addition to the requirements related to 
insignificant activities, the District also adds Section 4.3, which 
allows a permit applicant to omit trivial activities from the 
application.
    EPA notes that the District's proposed changes at Regulation 2.17, 
Section 4--as applicable to sources subject to FEDOOP requirements--are 
consistent

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with EPA's permit application requirements for title V sources. See 40 
CFR 70.5(c). Specifically, as is the case under Regulation 2.17, 
Section 4.2, 40 CFR 70.5(c) allows for the omission of insignificant 
activities from a permit application, but still requires inclusion of 
information related to an exemption for size or production rate, as 
well as information needed to determine the applicability of any 
applicable requirement. In addition, EPA believes the inclusion of 
insignificant activities in the FEDOOP permit process is SIP-
strengthening, and that the exclusion of trivial activities will not 
impact implementation of the FEDOOP program. For these reasons, EPA is 
proposing to approve these changes.
    The August 25, 2017, submittal also includes a change at Regulation 
2.17, Section 3.8 to include a 5-year term for which FEDOOPs remain in 
effect. This time period is a clarifying amendment to inform the public 
and facilities that FEDOOPs must be renewed every 5 years. This time 
period is consistent with the federal title V permitting program. 
Additionally, the addition of Section 3.8 includes a reference to 
Section 6.2, which describes the permit shield, meaning that as long as 
an administratively complete permit application has been received for 
issuance or renewal, then the failure to have a permit is not a 
violation of the rules until such a time that LMAPCD takes final action 
on the permit application. This shield provision is not being modified 
in this submittal, but the reference to it in Section 3.8 is 
appropriate to acknowledge what permit terms and conditions remain in 
effect while a permit renewal is being processed. The other changes to 
Regulation 2.17 are ministerial in nature.

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, EPA is proposing to incorporate by 
reference Jefferson County's Regulation 1.02,--``Definitions,'' version 
14, state effective September 21, 2016, \9\ which makes various changes 
to applicable definitions, and Regulation 2.17,--``Federally 
Enforceable District Origin Operating Permits,'' version 4, February 
15, 2017, which adds provisions describing permit application content 
for these types of permits. 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).
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    \9\ The District approved version 13 of Regulation 1.02 on July 
2, 2013, and version 14 on September 21, 2016. The State forwarded 
the regulations to EPA in the opposite order. Version 14 become 
state effective on September 21, 2016, and version 13 became state 
effective on February 15, 2017. Although the most recent State 
approval adopts version 13, EPA understands the State's intent is to 
incorporate version 14 of the regulation into the SIP. For that 
reason, EPA is proposing to incorporate by reference Regulation 1.02 
as of version 14's state-effective date, September 21, 2016. EPA may 
include an explanation describing this situation in 40 CFR 
52.920(c), Table 2 if the Agency finalizes the changes proposed in 
this action.
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IV. 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 
December 21, 2016, and August 25, 2017, to change applicable 
definitions and provisions for the FEDOOP program. These changes are 
consistent with 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 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, these proposed actions:
     Are not significant regulatory actions 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);
     Are not Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory actions because SIP approvals are exempted under 
Executive Order 12866;
     Do not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Are 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.);
     Do 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);
     Do not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Are not economically significant regulatory actions based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Are not significant regulatory actions subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Are 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
     Do 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 Preference, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.


    Authority:  42 U.S.C. 7401 et seq.

    Dated: May 6, 2019.
Mary S. Walker,
Acting Regional Administrator, Region 4.
[FR Doc. 2019-10344 Filed 5-17-19; 8:45 am]
 BILLING CODE 6560-50-P