[Federal Register Volume 87, Number 28 (Thursday, February 10, 2022)]
[Proposed Rules]
[Pages 7788-7790]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-02720]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2021-0362; FRL-9502-01-R4]


Air Plan Approval; Kentucky; 2015 8-Hour Ozone Nonattainment New 
Source Review Permit Program Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a revision to the Kentucky State Implementation Plan (SIP) 
submitted by the Commonwealth of Kentucky, through the Kentucky Energy 
and Environment Cabinet, on October 15, 2020. EPA is proposing to 
approve Kentucky's certification that existing Nonattainment New Source 
Review (NNSR) permitting regulations meet the nonattainment planning 
requirements for the 2015 8-hour ozone National Ambient Air Quality 
Standards (NAAQS) for Bullitt and Oldham Counties in the Louisville, 
KY-IN 2015 8-hour ozone Marginal nonattainment area and portions of 
Boone, Kenton, and Campbell Counties in the Cincinnati, OH-KY Marginal 
nonattainment area.

[[Page 7789]]

This action is being proposed pursuant to the Clean Air Act (CAA or 
Act) and its implementing regulations.

DATES: Comments must be received on or before March 14, 2022.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2021-0362 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: Pearlene Williams, 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, GA 30303-8960. The telephone number is 
(404) 562-9144. Ms. Williams can also be reached via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    The New Source Review (NSR) program is a preconstruction permitting 
program that requires certain stationary sources of air pollution to 
obtain permits prior to beginning construction. The NSR permitting 
program applies to new construction and modification of existing 
sources. New construction and modifications that emit ``regulated NSR 
pollutants'' over certain thresholds are subject to major NSR 
requirements, while smaller emitting sources and modifications may be 
subject to minor NSR requirements.
    Major NSR permits for sources that are in attainment or 
unclassifiable areas are referred to as Prevention of Significant 
Deterioration (PSD) permits. Major NSR permits for sources in 
nonattainment areas and that emit pollutants above the specified 
thresholds for which the area is in nonattainment are referred to as 
NNSR permits.
    A new stationary source is subject to major NSR requirements if its 
potential to emit a regulated NSR pollutant exceeds certain emission 
thresholds. If it exceeds the applicable threshold, the NSR regulations 
define it as a ``major stationary source.'' An existing major 
stationary source triggers major NSR permitting requirements when it 
undergoes a ``major modification,'' which occurs when a source 
undertakes a physical change or change in method of operation (i.e., a 
``project'') that would result in: (1) A significant emissions increase 
from the project, and (2) a significant net emissions increase from the 
source. See, e.g., 40 CFR 51.165(a)(1)(v)(A) and 40 CFR 
51.165(a)(1)(xxxix).
    On October 1, 2015, EPA promulgated a revised 8-hour ozone NAAQS of 
0.070 parts per million (ppm). See 80 FR 65292 (October 26, 2015). Upon 
promulgation of a new or revised ozone NAAQS, section 107(d) of the CAA 
requires EPA to designate as nonattainment any area that is violating 
the NAAQS (or that contributes to ambient air quality in a nearby area 
that is violating the NAAQS). As part of the designations process for 
the 2015 8-hour ozone NAAQS, EPA designated two areas in Kentucky as 
Marginal ozone nonattainment areas, effective August 3, 2018.\1\ See 83 
FR 25776 (June 4, 2018). Areas that were designated as ``Marginal'' 
ozone nonattainment areas were required to attain the 2015 8-hour ozone 
NAAQS no later than three years after the effective date of 
designation. See 40 CFR 51.1303.
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    \1\ The Kentucky 2015 8-hour ozone NAAQS nonattainment areas are 
the Kentucky portions of the Cincinnati, OH-KY, and Louisville, KY-
IN areas. The Kentucky portion of the Cincinnati, OH-KY 
nonattainment area consists of portions of Boone, Kenton, and 
Campbell Counties. The Kentucky portion of the Louisville, KY-IN 
ozone nonattainment area consists of Jefferson, Bullitt, and Oldham 
Counties. The NNSR requirement for Jefferson County, Kentucky, will 
be addressed in a separate action.
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    On December 6, 2018, EPA issued a final rule entitled 
``Implementation of the 2015 National Ambient Air Quality Standards for 
ozone: State Implementation Plan Requirements'' (SIP Requirements 
Rule), which establishes the requirements that state, tribal, and local 
air quality management agencies must meet as they develop 
implementation plans for areas where air quality exceeds the 2015 8-
hour ozone NAAQS. See 83 FR 62998; 40 CFR part 51, subpart CC. Based on 
the nonattainment designation for the 2015 8-hour ozone NAAQS, Kentucky 
was required to develop a SIP revision addressing the requirements of 
CAA sections 172(c)(5) and 173 for Kentucky's 2015 8-hour ozone 
Marginal nonattainment areas. See 42 U.S.C. 7502(c). Section 172(c)(5) 
of the CAA requires each state with a nonattainment area to submit a 
SIP revision requiring NNSR permits in the nonattainment area in 
accordance with the permitting requirements of CAA section 173.\2\ The 
minimum SIP requirements for NNSR permitting for the 2015 8-hour ozone 
NAAQS are located in 40 CFR 51.165. See 40 CFR 51.1314.
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    \2\ CAA section 173 requires, among other things, emissions 
offsets. The emissions offset ratio for Marginal ozone nonattainment 
areas is found in CAA section 182(a)(4).
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    On October 15, 2020, Kentucky submitted a SIP revision addressing, 
among other things,\3\ permit program requirements (i.e., NNSR) for the 
2015 8-hour ozone NAAQS for Kentucky's 2015 8-hour ozone Marginal 
nonattainment areas. EPA's analysis of how this SIP revision addresses 
the NNSR requirements for the 2015 8-hour ozone NAAQS is provided 
below.
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    \3\ The other elements of Kentucky's submittal are being 
addressed in separate rulemakings.
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II. Analysis of the Commonwealth's Submittal

    Kentucky's longstanding, SIP-approved NNSR regulation at 401 
Kentucky Administrative Regulation (KAR) 51:052, Review of new sources 
in or impacting upon nonattainment areas, establishes air quality 
permitting requirements for the construction or modification of major 
stationary sources located within, or impacting, areas designated as 
nonattainment.\4\ In its October 15, 2020, SIP revision, Kentucky 
certifies that the version of 401 KAR 51:052 in the SIP satisfies the 
federal NNSR requirements for the Kentucky 2015 8-hour ozone Marginal 
nonattainment areas. EPA approved Kentucky's NNSR certification for the 
2008 8-hour ozone NAAQS into the Kentucky SIP on April 10, 2017. See 82 
FR 17131.\5\ The SIP-approved version of 401 KAR 51:052 has not been 
updated since that 2017 rulemaking.
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    \4\ This SIP-approved rule also requires offsets for nitrogen 
oxides and volatile organic compounds of at least 1.1:1 in Marginal 
nonattainment areas. See 401 KAR 51:052, Section 4, Paragraph 3(b).
    \5\ While this proposed rulemaking pertains to Bullitt and 
Oldham Counties and portions of Boone, Campbell and Kenton Counties, 
401 KAR 51:052 applies to any areas in the Commonwealth designated 
as nonattainment.
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    The current SIP-approved version of 401 KAR 51:052 covers 
Kentucky's 2015 8-hour ozone Marginal nonattainment

[[Page 7790]]

areas (i.e., the counties and partial counties to which this proposed 
action pertains) and remains adequate to meet all applicable NNSR 
requirements for the 2015 8-hour ozone NAAQS. EPA is therefore 
proposing to approve Kentucky's certification that 401 KAR 51:052 meets 
the NNSR requirements for implementation of the 2015 8-hour ozone 
NAAQS.

III. Proposed Action

    EPA is proposing to approve Kentucky's SIP revision addressing the 
NNSR requirements for the 2015 8-hour ozone NAAQS for Kentucky's 2015 
8-hour ozone Marginal nonattainment areas, submitted on October 15, 
2020. EPA has preliminarily determined that Kentucky's submission 
fulfills the 40 CFR 51.1314 requirement and meets the requirements of 
CAA section 172(c)(5) and 173 and the minimum SIP requirements of 40 
CFR 51.165.

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 proposed 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 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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen oxide, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

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

    Dated: February 3, 2022.
Daniel Blackman,
Regional Administrator, Region 4.
[FR Doc. 2022-02720 Filed 2-9-22; 8:45 am]
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