[Federal Register Volume 86, Number 188 (Friday, October 1, 2021)]
[Rules and Regulations]
[Pages 54379-54381]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-21048]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 70

[EPA-R04-OAR-2020-0461; FRL-8976-02-R4]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving 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 approving these 
changes as they are consistent with the Clean Air Act (CAA or Act) and 
implementing Federal regulations.

DATES: This rule is effective November 1, 2021.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2020-0461. 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: Sarah LaRocca, Air Regulatory 
Management Section, Air Planning and Implementation Branch, Air and 
Radiation Division, Region 4, U.S. Environmental Protection Agency, 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

    EPA is approving changes to 401 Kentucky Administrative Regulation 
(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 revisions, which address 
public notice rule provisions for the NSR and FESOP programs, 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 to Version 2 
as well.\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. Analysis of Kentucky's Submission

    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

[[Page 54380]]

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.
    A full description of the e-notice and e-access provisions are 
contained in EPA's October 18, 2016 rulemaking document. See 81 FR 
71613.
    The SIP and Title V permit programs are revised through 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. In addition, the 
public 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 51:052, Review of new 
sources in or impacting upon nonattainment areas (addressing 
nonattainment new source review (NNSR)) cross reference the public 
notice procedures of 401 KAR 52:100.
    In a notice of proposed rulemaking (NPRM) published on May 28, 2021 
(86 FR 28740), EPA proposed to approve Kentucky's SIP and Title V 
program revisions provided on August 12, 2020, and March 29, 2021. The 
NPRM provides additional detail regarding the background and rationale 
for EPA's action. Comments on the NPRM were due on or before June 28, 
2021. EPA did not receive any comments on the NPRM.

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 401 KAR 
52:100, Public, affected state, and U.S. EPA review, Version 2, State 
effective June 2, 2020, into the Kentucky SIP. The 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). Therefore, these materials have 
been approved by EPA for inclusion in the SIP, 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.\2\
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    \2\ See 62 FR 27968 (May 22, 1997).
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IV. Final Action

    EPA is approving the changes to the 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, as these changes are 
consistent with the CAA and implementing Federal regulations.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve SIP and 
Title V submissions that comply with the provisions of the Act and 
applicable Federal regulations. See 42 U.S.C. 7410(k) and 7661a(d); 40 
CFR 52.02(a) and 70.4(e). Thus, in reviewing SIP and Title V 
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 (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 Kentucky SIP and Title V program are 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 rules do not have tribal implications as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will they 
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 November 30, 2021. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the

[[Page 54381]]

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

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.


    Dated: September 22, 2021.
John Blevins,
Acting Regional Administrator, Region 4.

    For the reasons stated in the preamble, the EPA amends 40 CFR parts 
52 and 70 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. In Sec.  52.920(c), Table 1 is amended under ``Chapter 52 Permits, 
Registrations, and Prohibitory Rules'' by revising the entry for ``401 
KAR 52:100'' to read as follows:


Sec.  52.920   Identification of plan.

* * * * *
    (c) * * *

                                   Table 1--EPA-Approved Kentucky Regulations
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                                                          State
        State citation             Title/subject        effective     EPA approval date         Explanation
                                                          date
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                                                  * * * * * * *
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                            Chapter 52 Permits, Registrations, and Prohibitory Rules
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                                                  * * * * * * *
401 KAR 52:100...............  Public, affected          6/2/2020   10/1/2021, [Insert
                                state, and U.S. EPA                  citation of
                                review.                              publication].
 
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PART 70--STATE OPERATING PERMIT PROGRAMS

0
3. The authority citation for part 70 continues to read as follows:

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

0
4. Amend appendix A to part 70 by adding paragraph (c) under the 
heading ``Kentucky'' to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating 
Permits Programs

* * * * *

Kentucky

* * * * *
    (c) Revisions to 401 Kentucky Administrative Regulation 52:100, 
submitted on March 29, 2021, with a State effective date of June 2, 
2020, to allow for electronic noticing of operating permits, are 
approved on October 1, 2021.
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[FR Doc. 2021-21048 Filed 9-30-21; 8:45 am]
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