[Federal Register Volume 84, Number 190 (Tuesday, October 1, 2019)]
[Rules and Regulations]
[Pages 51983-51986]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-20842]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2018-0800; FRL-10000-47-Region 4]


Air Plan Approval; KY; Jefferson County Existing and New VOC 
Storage Vessels Rule Changes

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is finalizing 
approval of 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), through 
a letter dated March 15, 2018. The revisions were submitted by the 
Cabinet on behalf of the Louisville Metro Air Pollution Control 
District (District, also referred to herein as Jefferson County) and 
make minor ministerial amendments to applicability dates and standards 
for both existing and new storage vessels for volatile organic 
compounds (VOC). EPA is finalizing approval of the changes because they 
are consistent with the Clean Air Act (CAA or Act).

DATES: This rule is effective October 31, 2019.

[[Page 51984]]


ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R04-OAR-2018-0800. All documents in the docket are listed on 
the www.regulations.gov website. Although listed in the index, some 
information may not be publicly available, i.e., Confidential Business 
Information or other information whose disclosure is restricted by 
statute. Certain other material, such as copyrighted material, is not 
placed on the internet and will be publicly available only in hard copy 
form. Publicly available docket materials are available either 
electronically through www.regulations.gov or in hard copy at the 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. EPA 
requests that if at all possible, you contact the person listed in the 
FOR FURTHER INFORMATION CONTACT section to schedule your inspection. 
The Regional Office's official hours of business are Monday through 
Friday 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Evan Adams of the 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. The telephone number is 
(404) 562-9009. Mr. Adams can also be reached via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    EPA is taking final action to approve changes to the Jefferson 
County portion of the Kentucky SIP that were provided to EPA through a 
letter dated March 15, 2018.\1\ Specifically, EPA is finalizing 
approval of these SIP revisions that make changes to Jefferson County 
Regulation 6.13, Standard of Performance for Existing Storage Vessels 
for Volatile Organic Compounds, and Regulation 7.12, Standard of 
Performance for New Storage Vessels for Volatile Organic Compounds.\2\ 
The SIP revisions update the current SIP-approved versions of 
Regulation 6.13 (Version 6) and Regulation 7.12 (Version 6) to Version 
7 of each. The changes to Jefferson County Regulations 6.13 and 7.12 
are administrative in nature and will better align the two regulations, 
reconciling their respective applicability based on the date of a 
facility's construction, modification, or reconstruction.
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    \1\ EPA notes that the Agency received the SIP revisions on 
March 23, 2018.
    \2\ EPA also notes that the Agency received several other 
revisions to the Jefferson County portion of the Kentucky SIP 
submitted with the same March 15, 2018, cover letter. EPA will be 
considering action on the remaining revisions in separate actions.
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    In a notice of proposed rulemaking (NPRM) published on June 5, 2019 
(84 FR 26030), EPA proposed to approve the aforementioned changes to 
Regulations 6.13 and 7.12 in the Jefferson County portion of the 
Kentucky SIP, which address the control of emissions from existing and 
new VOC storage vessels, respectively. The NPRM provides additional 
details regarding EPA's action. Comments on the NPRM were due on or 
before July 5, 2019.

II. Response to Comments

    EPA received two comments from one commenter on its June 5, 2019, 
NPRM. These comments are provided in the docket for this final action. 
EPA has summarized and responded to the comments below.
    Comment 1: The commenter notes the change of applicability dates in 
Regulation 6.13 and states that the Jefferson County regulations are 
based on Federal New Source Performance Standards (NSPS), Subpart K. 
``However, Subpart K only applies to vessels constructed, 
reconstructed, or modified after June 11, 1973 and prior to May 19, 
1978,'' states the commenter. The commenter also states that 
``Jefferson County's regulations seem to require more stringent 
standards'' and suggests that EPA ``confirm through formal notification 
from Kentucky and Jefferson County that they are allowed to impose more 
stringent standards than those by the federal government.''
    Response 1: The change of applicability dates in Version 7 of 
Regulation 6.13 was made to eliminate an overlap that existed with 
respect to the applicability dates of Regulations 6.13 and 7.12. Under 
the previous versions of Regulations 6.13 and 7.12, facilities 
constructed, reconstructed, or modified after April 19, 1972, and 
before September 1, 1976, were subject to both Regulation 6.13 and 
7.12. This redundancy prompted the District to change the date for 
Regulation 6.13 so that Regulation 6.13 applies to VOC storage vessels 
that commenced construction, modification, or reconstruction on or 
before April 19, 1972.
    Regulations 6.13 and 7.12 are similar to the Federal NSPS, subpart 
K. However, by virtue of the VOC-storage-vessel capacity and the dates 
identified in Section 1, Applicability, of Regulations 6.13 and 7.12, 
both Regulations cover a wider range of facilities than does subpart K. 
The commenter seems to suggest that the larger applicability scope of 
the Jefferson County regulations as compared to that of subpart K makes 
the Jefferson County regulations more stringent than federal 
requirements. Regardless of whether or not that is true, state and 
local agencies are allowed under federal law to adopt regulations that 
are more stringent than those required by the CAA, and EPA is required 
by the Act to approve such SIP revisions if they meet the applicable 
requirements of the Act, as these revisions do. See Union Elec. Co. v. 
EPA, 427 U.S. 246, 262-65 (1976); 42 U.S.C. 7410(k)(3).
    Likewise, with respect to state and local law, Kentucky law 
includes a stringency restriction with respect to regulations adopted 
by the Cabinet,\3\ but the regulations of the District are not subject 
to such a limitation. Indeed, Kentucky law authorizes the District, 
through its Air Pollution Control Board, to adopt and enforce all 
orders, rules, and regulations necessary or proper to accomplish the 
purposes of Kentucky Revised Statutes Chapter 77. See Ky. Rev. Stat. 
Sec.  77.180. Kentucky law also provides that an air pollution control 
district like the District is not prohibited from adopting regulations 
stricter than the state statutory or regulatory provisions that would 
otherwise apply to sources of air pollution within a district. See id. 
at Sec.  77.170.
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    \3\ Kentucky law provides that the Cabinet ``shall have the 
authority, power, and duty to . . . [p]reserve existing clean air 
resources while ensuring economic growth by issuing regulations, 
which shall be no more stringent than federal requirements. . . .'' 
Ky. Rev. Stat. Sec.  224.10-100(26).
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    Comment 2: The commenter states, ``Regulation 6.13 and 7.12 require 
sources to remain in compliance with this regulation for the rest of 
time unless the source changes its process to one not covered by this 
regulation.'' The commenter believes this is ``an attempt at codifying 
the `once in, always in' policy,'' which EPA recently rescinded. The 
commenter states, ``EPA should not allow the county or state to include 
this requirement into its SIP as EPA itself has stated it is illegal 
under the MACT standards so therefore it must be illegal under SIP 
rules.''
    Response 2: The ``once in always in'' policy addressed the 
classification of major sources of hazardous air pollutants (HAPs) 
under section 112 of the CAA. EPA issued a new memorandum on January 
25, 2018, which withdrew and replaced the ``once in, always in'' policy 
with guidance that sources of hazardous air pollutants

[[Page 51985]]

previously classified as ``major sources'' may be reclassified as 
``area'' sources when the facility limits its potential to emit HAP 
below major source thresholds.\4\ EPA subsequently proposed to codify 
that guidance. See 84 FR 36304 (July 26, 2019). Here, the regulations 
that are being incorporated into the Kentucky SIP are local VOC (i.e., 
precursor of ozone, a criteria pollutant) regulations being approved by 
EPA pursuant to CAA section 110, and thus are not subject to the ``once 
in, always in'' policy or its more recent replacement, which apply to 
sources of HAPs regulated pursuant to CAA section 112.
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    \4\ This memorandum is available at https://www.epa.gov/sites/production/files/2018-01/documents/reclassification_of_major_sources_as_area_sources_under_section_112_of_the_clean_air_act.pdf.
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III. Incorporation by Reference

    In this document, EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, EPA is finalizing the incorporation by reference of Jefferson 
County Regulation 6.13, Standard of Performance for Existing Storage 
Vessels for Volatile Organic Compounds, Version 7, and Regulation 7.12, 
Standard of Performance for New Storage Vessels for Volatile Organic 
Compounds, Version 7, both state effective January 17, 2018. These 
revisions are administrative in nature and will better align the two 
regulations, reconciling their respective applicability based on the 
date of a facility's construction, modification, or reconstruction, and 
the true vapor pressure. 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). Therefore, these materials have been approved by EPA for 
inclusion in the State implementation plan, have been incorporated by 
reference by EPA into that plan, are fully federally enforceable under 
sections 110 and 113 of the CAA as of the effective date of the final 
rulemaking of EPA's approval, and will be incorporated by reference in 
the next update to the SIP compilation.\5\
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    \5\ See 62 FR 27968 (May 22, 1997).
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IV. Final Action

    EPA is taking final action to approve the SIP revisions that make 
changes to the District's Regulation 6.13 and Regulation 7.12. These 
SIP revisions update the current SIP-approved versions of Regulation 
6.13 (Version 6) and Regulation 7.12 (Version 6) to Version 7 of each 
in the Jefferson County portion of the Kentucky SIP. These rule 
revisions will not interfere with any applicable requirement concerning 
attainment and reasonable further progress or any other applicable 
requirement of the Act. The changes are administrative in nature and 
clarify the regulations' applicability.

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 
approves state law as meeting Federal requirements and does not impose 
additional requirements beyond those imposed by state law. For that 
reason, this 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.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by December 2, 2019. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements. See section 307(b)(2).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Nitrogen dioxide, Ozone, Volatile organic compounds.

    Dated: September 17, 2019.
Mary S. Walker,
Regional Administrator, Region 4.

    40 CFR part 52 is amended as follows:

[[Page 51986]]

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart (S)--Kentucky

0
2. In Sec.  52.920, in paragraph (c), table 2 is amended:
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a. Under ``Reg 6-Standards of Performance for Existing Affected 
Facilities'' by revising the entry for ``6.13''; and
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b. Under ``Reg 7-Standards of Performance for New Affected Facilities'' 
by revising the entry for ``7.12''.
    The revisions read as follows:


Sec.  52.920  Identification of plan.

* * * * *
    (c) * * *

                         Table 2--EPA-Approved Jefferson County Regulations for Kentucky
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                                                                                 District
      Reg             Title/subject        EPA approval    Federal Register      effective        Explanation
                                               date             notice             date
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                                                  * * * * * * *
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                        Reg 6--Standards of Performance for Existing Affected Facilities
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                                                  * * * * * * *
6.13..........  Standard of Performance        10/1/2019  [Insert Federal            1/17/18
                 for Existing Storage                      Register citation
                 Vessels for Volatile                      Register].
                 Organic Compounds.
 
                                                  * * * * * * *
                           Reg 7--Standards of Performance for New Affected Facilities
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                                                  * * * * * * *
7.12..........  Standard of Performance        10/1/2019  [Insert Federal            1/17/18
                 for New Storage Vessels                   Register
                 of Volatile Organic                       citation].
                 Compounds.
 
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[FR Doc. 2019-20842 Filed 9-30-19; 8:45 am]
BILLING CODE 6560-50-P