[Federal Register Volume 87, Number 45 (Tuesday, March 8, 2022)]
[Proposed Rules]
[Pages 12904-12905]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-04111]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2021-0686; FRL-9124-01-R4]


Air Plan Approval; Kentucky; Fugitive Emissions Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a State Implementation Plan (SIP) revision submitted by the 
Commonwealth of Kentucky (Commonwealth), through the Energy and 
Environmental Cabinet (Cabinet) on October 15, 2020. The SIP revision 
updates the Commonwealth's regulation for the control of fugitive 
emissions. This revision contains minor non-substantive changes, 
grammatical edits, renumbering, the removal of one provision, the 
addition of one new requirement, and the incorporation of two 
definitions to support the new requirement. EPA is proposing to approve 
these changes pursuant to the Clean Air Act (CAA or Act).

DATES: Comments must be received on or before April 7, 2022.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2021-0686 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: Andres Febres, 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) 562-8966. Mr. Febres can also be reached via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Overview

    On October 15, 2020, the Commonwealth submitted changes to the 
Kentucky SIP for EPA approval.\1\ EPA is proposing to approve these 
changes to Regulation 401 KAR 63:010--Fugitive Emissions, which was 
approved into the SIP on July 12, 1982 (47 FR 30059), and establishes 
control requirements for fugitive emissions.
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    \1\ EPA notes that the Commonwealth's submission was received on 
October 16, 2020. However, for clarity, EPA will refer to this 
submission by its cover letter date of October 15, 2020.
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II. Analysis of the Commonwealth's SIP Revision

    The October 15, 2020, SIP revision contains primarily minor non-
substantive changes which concern minor language edits and renumbering 
changes throughout regulation 401 KAR 63:010. Additionally, the 
revision includes the removal of one provision, the addition of one new 
requirement, and the incorporation of two new definitions to support 
this requirement.
    The bulk of the changes in the October 15, 2020, SIP revision 
concern clarification and minor language edits. For example, one 
language edit changes the word ``promulgate'' to ``prescribe.'' Another 
example of a language edit the Commonwealth made was to change the 
language in the ``NECESSITY, FUNCTION, AND CONFORMITY'' section of the 
rule to align more closely with the language in Kentucky's implementing 
statute regarding the powers and duties of the Cabinet. Additionally, 
Kentucky edited this section to update references to the rules that 
outline the Cabinet's power to promulgate the fugitive emissions rules. 
With respect to renumbering changes, the revision switches the order of 
Section 1, previously ``Applicability,'' and Section 2, previously 
``Definitions.'' Other similar changes include the necessary 
renumbering of sections to incorporate the addition or removal of 
provisions, which are further discussed below.
    The proposed changes seek to delete paragraph 4(2), a nuisance 
provision, from the SIP-approved rule. The Commonwealth moved the text 
of 4(2) to existing paragraph 3(4) in its revised state rule. However, 
as noted in the October 15, 2020, cover letter submitting these 
changes, the Commonwealth requests that EPA remove existing paragraph 
4(2) from the SIP and not incorporate the text moved to paragraph 3(4). 
EPA is proposing to remove the SIP-approved version of paragraph 4(2) 
and not incorporate the text in paragraph 3(4) of the revised state 
rule into the SIP because this nuisance provision is not related to 
attainment and maintenance of the national ambient air quality 
standards (NAAQS) and is therefore not related to the CAA requirements 
for SIPs.\2\
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    \2\ Excluding nuisance provisions that are unrelated to 
attainment and maintenance of the NAAQS from SIPs is consistent with 
longstanding Agency practice. See, e.g., 85 FR 73636 (November 19, 
2020).
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    The changes add a new requirement to Section 3 to use EPA's 
Reference Method 22 (Visual Determination of Fugitive Emissions) of 
appendix A-7 in 40 CFR part 60, as the standard method by which to 
determine the level of visible fugitive dust emissions beyond the lot 
line of the property on which emissions originate. The Commonwealth 
adds this method to confirm compliance with the opacity standard, as 
specified in Kentucky's Rule 63:010. As a part of the new requirement, 
the Commonwealth also adds specific emission standards, in the form of 
time and observational period limits, for all sources to which this 
rule applies. Specifically, the revised rule states that a source shall 
not cause, suffer, or allow visible fugitive emissions beyond the lot 
line of the property, observed using EPA's Reference Method 22, for 
more than 5 minutes in a 60-minute period, or more than 20 minutes in a 
24-hour period.
    Finally, the Commonwealth adds under Section 1 (formerly Section 
2), the definitions for ``Emission time'' and ``Observation period,'' 
to define terms in

[[Page 12905]]

the language from the Reference Method 22 requirements in Section 3. 
EPA has determined that the addition of Method 22 and these definitions 
is consistent with federal regulations. Without these requirements, it 
would be difficult to determine compliance with 401 KAR 63:010 because 
the previous version of the rule did not offer a standard method for 
determining visible emissions.
    EPA has reviewed all changes in the October 15, 2020, SIP revision 
regarding 401 KAR 63:010 and has preliminarily determined that the 
changes are consistent with Federal regulations and do not interfere 
with attainment and maintenance of the NAAQS or any other applicable 
requirement of the Act. The changes strengthen the existing fugitive 
emission control standards in the Kentucky SIP. For these reasons, EPA 
is proposing to approve the changes to this rule into the SIP.

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 Kentucky's Regulation 401 KAR 63:010--Fugitive Emissions, 
state effective on June 30, 2020, which updates the Commonwealth's 
fugitive emission provisions, with the exception of the nuisance 
provisions added to paragraph 3(4) for the reasons described in Section 
II. 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 revision to Regulation 401 KAR 
63:010--Fugitive Emissions, which updates the Commonwealth's fugitive 
emissions rule. EPA is proposing to approve these changes because they 
are consistent with the CAA.

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 
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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

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

    Dated: February 17, 2022.
Daniel Blackman,
Regional Administrator, Region 4.
[FR Doc. 2022-04111 Filed 3-7-22; 8:45 am]
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