[Federal Register Volume 86, Number 87 (Friday, May 7, 2021)]
[Rules and Regulations]
[Pages 24505-24507]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-09468]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2020-0500; FRL-10023-56-Region 4]


Air Plan Approval; Kentucky; Removal of Asbestos Requirements 
From Jefferson County

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is correcting the 
erroneous incorporation of the asbestos National Emission Standards for 
Hazardous Air Pollutants (NESHAP) requirements into the Jefferson 
County portion of the Kentucky State Implementation Plan (SIP). The 
continued presence of the asbestos requirements in the Jefferson County 
portion of the Kentucky SIP is inappropriate and potentially confusing 
and thus problematic for affected sources, the Commonwealth, local 
agencies, and EPA. EPA is removing the asbestos requirements because 
these requirements are not related to the attainment and maintenance of 
the national ambient air quality standards (NAAQS) and are therefore 
unrelated to the Clean Air Act (CAA or Act) requirements for SIPs.

DATES: This rule is effective June 7, 2021.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2020-0500. 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: 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 electronic mail at [email protected] or via telephone at 
(404) 562-9089.

SUPPLEMENTARY INFORMATION:

I. Background

    Section 110 of the CAA requires states to develop and submit to EPA 
a SIP to ensure that state air quality meets the NAAQS. These ambient 
air quality standards currently address six criteria pollutants: Carbon 
monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur 
dioxide. Each federally-approved SIP protects air quality primarily by 
addressing air pollution at its point of origin through air pollution 
regulations and control strategies. EPA-approved SIP regulations and 
control strategies are federally enforceable.
    On October 23, 2001 (66 FR 53658), EPA approved revisions to the 
Jefferson

[[Page 24506]]

County portion of the Kentucky SIP,\1\ which included miscellaneous 
rule revisions and the recodification of Air Pollution Control District 
(APCD) of Jefferson County regulations. These revisions were submitted 
to EPA on May 21, 1999, by the Commonwealth of Kentucky on behalf of 
Jefferson County. Among these revisions were requirements for 
permitting the demolition and renovation of facilities with asbestos, 
in accordance with 40 CFR part 61, subpart M, National Emission 
Standard for Asbestos. The asbestos requirements were adopted by 
Jefferson County in paragraphs 1.3, 5.3, and 5.6 of Regulation 2.03, 
Permit Requirements, Non-Title V Construction and Operating Permits and 
Demolition/Renovation Permits, and this regulation was part of the 
recodified rules included in the May 21, 1999, submittal. In the 
October 23, 2001, final rule, EPA inadvertently incorporated the 
asbestos requirements in Regulation 2.03, Permit Requirements, Non-
Title V Construction and Operating Permits and Demolition/Renovation 
Permits, into the Jefferson County portion of the Kentucky SIP. The 
version of the rules incorporated into the SIP were effective in 
Jefferson County on December 15, 1993.
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    \1\ 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 https://louisvilleky.gov/government/air-pollution-control-district/history-air-pollution-control-louisville. 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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    Section 110(k)(6) of the CAA provides EPA with the authority to 
make corrections to prior SIP actions that are subsequently found to be 
in error in the same manner as the prior action, and to do so without 
requiring any further submission from the State.\2\ While section 
110(k)(6) provides EPA with the authority to correct its own ``error,'' 
nowhere does this provision or any other provision in the CAA define 
what qualifies as ``error.'' Thus, EPA believes that the term should be 
given its plain language, everyday meaning, which includes all 
unintentional, incorrect, or wrong actions or mistakes.
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    \2\ Section 110(k)(6) states that ``Whenever the Administrator 
determines that the Administrator's action approving, disapproving, 
or promulgating any plan or plan revision (or part thereof), area 
designation, redesignation, classification, or reclassification was 
in error, the Administrator may in the same manner as the approval, 
disapproval, or promulgation revise such action as appropriate 
without requiring any further submission from the State. Such 
determination and the basis thereof shall be provided to the State 
and public.''
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    The May 21, 1999, submission contained changes to Regulation 2.03, 
Permit Requirements, Non-Title V Construction and Operating Permits and 
Demolition/Renovation Permits, that contain asbestos requirements in 
paragraphs 1.3, 5.3 and 5.6. EPA's October 23, 2001, approval of these 
requirements into the Jefferson County portion of the Kentucky SIP was 
in error. These paragraphs are appropriate for State and local agencies 
to adopt and implement, but it is not necessary or appropriate to 
incorporate them into the applicable SIP because asbestos requirements 
are not related to the attainment and maintenance of the NAAQS. EPA 
proposed to remove these paragraphs from Regulation 2.03 in a notice of 
proposed rulemaking on March 4, 2021, and received no comments. See 86 
FR 12554. EPA is therefore removing these paragraphs from the SIP.

II. Incorporation by Reference

    In this document, EPA is amending regulatory text that includes 
incorporation by reference. Specifically, EPA is removing paragraphs 
1.3, 5.3, and 5.6 (asbestos requirements) of Regulation 2.03, Permit 
Requirements, Non-Title V Construction and Operating Permits and 
Demolition/Renovation Permits, from the Jefferson County portion of the 
Kentucky SIP, which is incorporated by reference in accordance with 
requirements of 1 CFR 51.5. The remainder of Regulation 2.03, Permit 
Requirements, Non-Title V Construction and Operating Permits and 
Demolition/Renovation Permits, will remain incorporated in the 
Jefferson County portion of the Kentucky SIP. 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).

III. Final Action

    EPA is removing paragraphs 1.3, 5.3, and 5.6 of APCD Regulation 
2.03, Permit Requirements, Non-Title V Construction and Operating 
Permits and Demolition/Renovation Permits, from the Jefferson County 
portion of the SIP because they are not related to the attainment and 
maintenance of the NAAQS.

IV. 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);
     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 (Public Law 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

[[Page 24507]]

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 July 6, 2021. 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, Intergovernmental relations, Ozone, Particulate matter, 
Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: April 29, 2021.
John Blevins,
Acting Regional Administrator, Region 4.

    For the reasons stated in the preamble, the EPA amends 40 CFR part 
52 as follows:

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. Section 52.920(c) is amended in Table 2 under ``Reg 2--Permit 
Requirements'' by revising the entry for ``2.03'' to read as follows:


Sec.  52.920   Identification of plan.

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    (c) * * *

                                             Table 2--EPA-Approved Jefferson County Regulations for Kentucky
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                                                                     EPA approval                               District
                 Reg                          Title/subject              date       Federal Register notice  effective date          Explanation
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                                                               Reg 2--Permit Requirements
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                                                                      * * * * * * *
2.03................................  Permit Requirements--Non-           10/23/01  66 FR 53660............        12/15/93  Except for paragraphs 1.3,
                                       Title V Construction and                                                               5.3 and 5.6 regarding
                                       Operating Permits and                                                                  asbestos demolition, which
                                       Demolition/Renovation                                                                  were removed from the
                                       Permits.                                                                               federally approved SIP by
                                                                                                                              EPA on 5/7/21.
 
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[FR Doc. 2021-09468 Filed 5-6-21; 8:45 am]
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