[Federal Register Volume 86, Number 102 (Friday, May 28, 2021)]
[Proposed Rules]
[Pages 28740-28742]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-11149]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 70

[EPA-R04-OAR-2020-0461; FRL-10024-40-Region 4]


Air Plan and Operating Permit Program Approval; Kentucky; Public, 
Affected State, and EPA Review

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve changes to the Kentucky State Implementation Plan (SIP) and the 
Kentucky Title V Operating Permit Program (Title V) submitted by the 
Commonwealth of Kentucky, through the Energy and Environment Cabinet 
(Cabinet) on August 12, 2020, and March 29, 2021. These revisions 
address the public notice rule provisions for the New Source Review 
(NSR), Federally Enforceable State Operating Permits (FESOP) and Title 
V programs of the Clean Air Act (CAA or Act) by providing for 
electronic notice (``e-notice'') and removing the mandatory requirement 
to provide public notice of a draft air permit in a newspaper. EPA is 
proposing to approve these changes as they are consistent with the 
Clean Air Act (CAA or Act) and implementing federal regulations.

DATES: Comments must be received on or before June 28, 2021.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2020-0461 at 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 www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Sarah LaRocca, 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) 562-8994. Ms. LaRocca can also be reached via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On October 5, 2016, EPA finalized revised public notice provisions 
for the NSR, Title V, and Outer Continental Shelf permitting programs 
of the CAA. See 81 FR 71613 (October 18, 2016). These rule revisions 
removed the mandatory requirement to provide public notice of 
permitting actions through publication in a newspaper and allow for 
internet e-notice as an option for permitting authorities implementing 
their own EPA-approved SIP rules and Title V rules, such as Kentucky's 
EPA-approved permitting programs. Permitting authorities are not 
required to adopt e-notice. Nothing in the revised rules prevents a 
permitting authority with an EPA-approved permitting program from 
continuing to use newspaper notification and/or from supplementing e-
notice with newspaper notification and/or additional means of 
notification. For the noticing of draft permits issued by permitting 
authorities with EPA-approved programs, the rule requires the 
permitting authority to use ``a consistent noticing method'' for all 
permit notices under the specific permitting program. When e-notice is 
provided, EPA's rule requires electronic access (e-access) to the draft 
permit for the duration of the public comment period.
    EPA anticipates that e-notice, which is already being practiced by 
many permitting authorities, will enable permitting authorities to 
communicate permitting and other affected actions to the public more 
quickly and efficiently and will provide cost savings over newspaper 
publication. EPA further anticipates that e-access will expand access 
to permit-related documents. A full description of the e-notice and e-
access provisions are contained in EPA's October 18, 2016 rulemaking 
notice. See 81 FR 71613.
    EPA is proposing to approve changes to 401 Kentucky Administrative 
Regulations (KAR) 52:100, Public, affected state, and U.S. EPA review, 
of the Kentucky SIP and Title V program, submitted by the Commonwealth 
on August 12, 2020, and March 29, 2021. The August 12, 2020, and March 
29, 2021, SIP and Title V program revisions seek to establish a revised 
method of publication of public notices for public hearings and public 
comment periods, establish a revised method of notification of the 
opportunity to be placed on a mailing list of permit actions, change 
how documents related to permit proceedings will be available for 
public inspection, and make minor changes to 401 KAR 52:100 that do not 
alter the meaning of the regulation. The SIP revision updates the 
current SIP-approved version of 401 KAR 52:100 (Version 1) to Version 
2. The Title V revision updates the approved version of 401 KAR 52:100 
originally approved in the Kentucky Title V program in the same 
manner.\1\
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    \1\ EPA fully approved Kentucky's title V permitting program in 
2001. See 66 FR 54955 (October 31, 2001).
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II. EPA's Analysis of Kentucky's Submittals

    The SIP and Title V program revisions contain changes to 401 KAR 
52:100, Public, affected state, and U.S. EPA review, which establishes 
the procedures used by the Cabinet to provide for the review of 
federally-enforceable permits by the public, affected states, and EPA. 
Specifically, 401 KAR 52:100 applies to permit actions established in 
401 KAR 52.020, Title V Permits and 401 KAR 52.030, Federally-
enforceable permits for non-major sources.\2\ In addition, the public

[[Page 28741]]

participation provisions of Kentucky's major source NSR permitting 
programs at 401 KAR 51:017, Prevention of significant deterioration of 
air quality (PSD), and 401 KAR 52:052, Review of new sources in or 
impacting upon nonattainment areas (addressing nonattainment new source 
review (NNSR)) cross reference 52 KAR 52:100. Specifically, Kentucky's 
PSD rules at 401 KAR 51:017, Section 5, Exclusions from Increment 
Consumption; Section 10, Air Quality Models; Section 14, Sources 
Impacting Class I Areas; Section 15, Public Participation; and Section 
20, Plant-wide Applicability Limit Provisions, cite to 401 KAR 52:100 
and to 40 CFR 51.166(q). Kentucky's NNSR rules at 401 KAR 51:052, 
Section 7(5)(f), Source Obligation; Section 10(3), Federal land manager 
notification; Section 10(4), Public participation; and Section 11, 
Plant-wide Applicability Limit Provisions, cite to 401 KAR 52:100 and 
to 40 CFR 52.21(4) (to the extent that 401 KAR 52:100 procedures do not 
apply).
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    \2\ 401 KAR 52:030 establishes requirements for sources that 
accept emission limitations to avoid major source NSR requirements 
under Title I of the Act or Operating Permit Program requirements 
under Title V of the Act. Sources subject to these types of permits 
restricting potential to emit (PTE), both for construction 
permitting of new or modified sources and operating permitting for 
existing major sources, are commonly referred to as synthetic minor 
sources. Kentucky prefers to distinguish between the Title V and 
Title I requirements that a source is attempting to avoid. Hence, 
they use the term ``conditional major'' for sources whose emissions 
are limited below the threshold for Title V, and ``synthetic minor'' 
for sources whose emissions are below the threshold for Title I. See 
``Cabinet Provisions and Procedures for Issuing Federally-
Enforceable Permits for Nonmajor Sources,'' which is incorporated by 
reference in Section 26 of 401 KAR 52:030. SIP-approved operating 
permit programs that restrict PTE primarily to avoid major source 
operating permitting under title V are commonly referred to as FESOP 
programs. The FESOP program is a voluntary mechanism for states to 
create federally enforceable restrictions on PTE to avoid major 
source permitting requirements, such as the title V operating permit 
program, and there are no specific CAA provisions or federal 
regulations regarding the issuance of synthetic minor or conditional 
major operating permits.
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    In this proposed action, EPA is proposing to approve the following 
changes to 401 KAR 52:100. In Section 2, ``Public Comment Period,'' 
Section 3, ``Public Hearing,'' and Section 4, ``Public Notice,'' the 
Cabinet is replacing the public notice method for the aforementioned 
permit programs from newspaper publication to website notification at 
http://eec.ky.gov. This method of notification is consistent with the 
public availability of information requirements for permits under 40 
CFR 51.161, 51.166(q), 51.165(i), and 70.7 and the criteria for FESOP 
programs (see 54 FR 27274 (June 28, 1989)) (hereinafter FESOP 
Guidance). Additionally, this regulation allows the Cabinet to provide 
further notice in newspapers, newsletters, and press releases under 
Section 4(2).
    Section 7, ``Mailing List,'' is updated to require the Cabinet to 
notify persons of the opportunity to be on a mailing list to receive 
notification of permit actions via the Cabinet's website, rather than 
notification through hard copy publications.
    Section 8, ``Public Inspection of Documents,'' is also updated to 
require the Cabinet to post draft permits on the Cabinet's website for 
the duration of the public comment period. The revision to Section 8 
deletes the requirement that the permit application, draft permit, and 
supporting material information be available for public inspection in 
local public libraries and county clerk offices, but retains the 
requirement that, during the public comment period, all non-
confidential information contained in the permit application, draft 
permit, and supporting materials be made available at the main office 
of the Division of Air Quality and the Division for Air Quality 
Regional office having jurisdiction over the source. As described 
above, posting draft permits on a designated website is required for 
consistency under the federal rules when e-notice is provided.
    In addition, the submission contains minor textual changes to 
provide clarity and greater consistency. These textual revisions 
include: updating references to the Cabinet, Division for Air Quality, 
and regional offices; language changes for clarity and consistency such 
as changing ``specified'' to ``established'' and adding ``public'' 
before references to notice and hearings; clarifying that confidential 
information refers to confidential business information (CBI) under 40 
CFR part 2 and 400 KAR 1:060 in Section 5(11)(b); and clarifying that 
the Cabinet will issue a revised permit upon receipt of EPA objection 
under Section 10(9)(c)(2). It does not change substantive elements of 
the content of such notifications or time periods associated with 
notifications. EPA is proposing to approve these revisions because the 
revisions are consistent with the SIP revision requirements of CAA 
section 110, the Title V program revision requirements of 40 CFR 70.4, 
and EPA's permitting requirements for public participation.

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 401 KAR 52:100, Public, affected state, and U.S. EPA review, 
Version 2, state effective June 2, 2020, into the Kentucky SIP, as well 
as the State's federally approve title V program. The proposed 
incorporation includes minor textual changes and establishes a revised 
means of publication for public notices for public hearing, public 
comment periods, and the opportunity to join mailing lists, and a 
revised means to inspect documents related to permit proceedings. 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).

IV. Proposed Action

    EPA is proposing to approve the changes to 401 KAR 52:100, Public, 
affected state, and U.S. EPA review, of the Kentucky SIP and Title V 
program, as submitted on August 12, 2020, and March 29, 2021, for the 
reasons stated above.

V. Statutory and Executive Order Reviews

    In reviewing SIP and Title V submissions, EPA's role is to approve 
such submissions, provided that they meet the criteria under the CAA, 
and EPA's implementing regulations. 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);
     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 1955 (Pub. L. 104-4);
     Does not have Federalism implications as specified in the 
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

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(59 FR 7629, February 16, 1994). The SIP is not approved to apply on 
any Indian reservation land or any other area where EPA or an Indian 
tribe has demonstrated that a tribe has jurisdiction. In those areas of 
Indian country, the SIP-related rules do 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.
    Furthermore, the proposed rules regarding Title V Operating Permit 
programs do not have tribal implications because they are not approved 
to apply to any source of air pollution over which an Indian Tribe has 
jurisdiction, nor will these proposed rules impose substantial direct 
costs on tribal governments or preempt tribal law.

List of Subjects

40 CFR Part 52

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Incorporation by reference, Intergovernmental 
relations, Reporting and recordkeeping requirements.

40 CFR Part 70

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Incorporation by reference, Intergovernmental 
relations, Operating Permits, Reporting and recordkeeping requirements.

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

    Dated: May 20, 2021.
John Blevins,
Acting Regional Administrator, Region 4.
[FR Doc. 2021-11149 Filed 5-27-21; 8:45 am]
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