[Federal Register Volume 89, Number 46 (Thursday, March 7, 2024)]
[Rules and Regulations]
[Pages 16460-16463]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-04782]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2021-0691; FRL-11644-02-R4]


Air Plan Approval; KY; 2015 8-Hour Ozone Nonattainment New Source 
Review Permit Program Requirements and Rule Revision for Jefferson 
County

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a 
revision to the Jefferson County portion of the Kentucky State 
Implementation Plan (SIP) submitted by the Commonwealth of Kentucky 
through the Kentucky Energy and Environment Cabinet (Cabinet) on June 
13, 2022. The changes were submitted by the Cabinet on behalf of the 
Louisville Metro Air Pollution Control District (District, also 
referred to herein as Jefferson County). EPA is approving changes to 
the District's rules on the construction or modification of major 
stationary sources that are located within nonattainment areas or that 
have emissions impacting nonattainment areas. EPA also is approving the 
certification submitted by Kentucky on behalf of the District that the 
new version of the Nonattainment New Source Review (NNSR) permitting 
regulations for incorporation into the Jefferson County portion of the 
Kentucky SIP meets the NNSR nonattainment planning requirements for the 
2015 8-hour ozone National Ambient Air Quality Standards (NAAQS). The 
certification covers the Jefferson County portion of the Louisville, 
Kentucky-Indiana multi-state nonattainment area for the 2015 8-hour 
ozone NAAQS. This action is pursuant to the Clean Air Act (CAA or Act) 
and its implementing regulations.

DATES: This rule is effective April 8, 2024.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2021-0691. All documents in the docket 
are listed on the 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.

[[Page 16461]]

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 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 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) 562-8994. Ms. LaRocca 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 to the modification of existing 
sources located in an area where the NAAQS have been exceeded 
(nonattainment area), areas where the NAAQS have not been exceeded 
(attainment), and areas that are unclassified.
    Jefferson County is located within a nonattainment area for the 
2015 8-hour ozone NAAQS. See 40 CFR 81.318; see also EPA's 
Greenbook.\1\ Therefore, Jefferson County is required to have NNSR 
rules approved into the Jefferson County portion of the Kentucky SIP 
for this criteria pollutant addressing the requirements of CAA section 
172(c)(5), CAA section 173, 40 CFR 51.165, and 40 CFR 51.1314.
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    \1\ The Kentucky portion of the Greenbook is available at 
https://www3.epa.gov/airquality/greenbook/anayo_ky.html.
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    Through a notice of proposed rulemaking (NPRM) published on January 
19, 2024 (89 FR 3613), EPA proposed to approve changes to the 
District's Regulation 2.04, Construction or Modification of Major 
Sources In or Impacting Upon Non-Attainment Areas (Emission Offset 
Requirements), which establishes requirements for Jefferson County's 
NNSR program, along with a certification that this updated version of 
Regulation 2.04 satisfies the requirements of the CAA for the 2015 8-
hour ozone NAAQS applicable to the Jefferson County portion of the 
Louisville, KY-IN 2015 ozone moderate nonattainment area.\2\ In this 
rulemaking, EPA is finalizing its approval of the District's June 13, 
2022,3 4 request to incorporate Version 8 \5\ of Regulation 
2.04 and certification, for incorporation into the SIP, as meeting the 
NNSR requirements for implementation of the 2015 8-hour ozone NAAQS. 
EPA's rationale for approving the changes is described in the January 
19, 2024, NPRM. Comments on the January 19, 2024, NPRM were due on or 
before February 20, 2024. No comments were received on the January 19, 
2024, NPRM, adverse or otherwise.
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    \2\ On July 13, 2021, Kentucky, on behalf of Jefferson County, 
submitted a certification that the current SIP-approved version of 
Regulation 2.04 fulfills requirements of the NNSR program. Jefferson 
County withdrew that submission on June 13, 2022, and replaced it 
with a SIP revision containing changes to District Regulation 2.04 
and an updated certification that the modified version of Regulation 
2.04 complies with NNSR requirements for the 8-hour ozone NAAQS as 
addressed in this rulemaking.
    \3\ The June 13, 2022, submission was received via a letter 
dated June 15, 2022.
    \4\ As discussed in the January 19, 2024, NPRM, the June 13, 
2022, submission contains changes to address the federal NNSR 
provisions promulgated in the Ethanol Rule. EPA is not acting on 
those changes in this rulemaking.
    \5\ EPA is retaining Sections 2.2.20 and 10 from Version 7 of 
Regulation 2.04.
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II. 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, and as discussed in Section I of this preamble, EPA is finalizing 
the incorporation by reference of Jefferson County Regulation 2.04, 
Version 8, ``Construction or Modification of Major Sources in or 
Impacting upon Non-Attainment Areas (Emission Offset Requirements),'' 
locally effective on March 16, 2022, except for the ethanol production 
facilities exclusion in Sections 1.4.3.20 and 5.20. Additionally, EPA 
is retaining Sections 2.2.20 and 10 from Version 7 of Regulation 2.04, 
locally effective on March 17, 1993.\6\ \7\ 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 State implementation plan, 
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.\8\
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    \6\ In a letter dated August 24, 2023, the District withdrew its 
request to remove Section 2.2.20 of Regulation 2.04 from the SIP, 
which defines ``Class I area,'' from EPA's consideration. In a 
subsequent email dated November 14, 2023, the District clarified 
that the withdrawal of the June 13, 2022, request to remove from the 
SIP Regulation 2.04 version 7 Section 2.2.20, includes all 
subparagraphs within the definition (i.e., 2.2.20.1 through 
2.2.20.7). See the August 24, 2023, letter, and the November 14, 
2023, clarifying correspondence in the docket for this rulemaking.
    \7\ In a letter dated August 24, 2023, the District withdrew its 
request to remove Section 10--Protection of Visibility, from EPA's 
consideration. Keeping Section 10--Protection of Visibility in the 
SIP allows the Commonwealth to maintain visibility provisions for 
the Jefferson County area in accordance with 40 CFR 51.307(b)(2). 
The request to add Section 10--Offset Ratio remains before EPA for 
consideration. The withdrawal would leave two sections numbered 
``10'' in Rule 2.04: one locally effective on March 13, 1993, and 
the other locally effective on March 16, 2022. The District intends 
to address the duplicate numbering in a future submission.
    \8\ 62 FR 27968 (May 22, 1997).
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III. Final Action

    EPA is approving changes to the Jefferson County portion of the 
Kentucky SIP, submitted on June 13, 2022, with the exception of the 
ethanol production facilities exclusion in Sections 1.4.3.20 and 5.20, 
which EPA is not acting on at this time. These revisions will align 
Jefferson County Regulation 2.04, with federal NNSR regulations at 40 
CFR 51.165. Additionally, EPA is approving Jefferson County's 
certification of NNSR requirements for the 2015 8-hour ozone NAAQS for 
the Jefferson County portion of the Louisville, KY-IN 2015 ozone 
moderate nonattainment area which meets the requirements of CAA 
sections 172(c)(5) and 173 and 40 CFR 51.165 and 51.1314. EPA has 
determined that the requested changes in Kentucky's June 13, 2022, SIP 
revision will not interfere with any applicable requirement concerning 
attainment and reasonable further progress, or any other applicable 
requirement of the CAA.

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 CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve State choices,

[[Page 16462]]

provided that they meet the criteria of the CAA. Accordingly, 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 14094 (88 FR 21879, April 11, 2023);
     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 subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997) because it approves a State program;
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001); and
     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.
    In addition, 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 and will not impose 
substantial direct costs on Tribal governments or preempt Tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
    Executive Order 12898 (Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
February 16, 1994) directs Federal agencies to identify and address 
``disproportionately high and adverse human health or environmental 
effects'' of their actions on minority populations and low-income 
populations to the greatest extent practicable and permitted by law. 
EPA defines environmental justice (EJ) as ``the fair treatment and 
meaningful involvement of all people regardless of race, color, 
national origin, or income with respect to the development, 
implementation, and enforcement of environmental laws, regulations, and 
policies.'' EPA further defines the term fair treatment to mean that 
``no group of people should bear a disproportionate burden of 
environmental harms and risks, including those resulting from the 
negative environmental consequences of industrial, governmental, and 
commercial operations or programs and policies.''
    Jefferson County evaluated EJ considerations as part of its SIP 
submittal even though the CAA and applicable implementing regulations 
neither prohibit nor require an evaluation. The analysis was done for 
the purpose of providing additional context and information about this 
proposed rulemaking to the public, not as a basis of the proposed 
action. EPA is taking action under the CAA on bases independent of 
Jefferson County's evaluation of EJ. In addition, there is no 
information in the record upon which this decision is based that is 
inconsistent with the stated goal of E.O. 12898 of achieving EJ for 
people of color, low-income populations, and Indigenous peoples.
    This action is subject to the Congressional Review Act, and EPA 
will submit a rule report to each House of the Congress and to the 
Comptroller General of the United States. 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 May 6, 2024. 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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: March 1, 2024.
Jeaneanne Gettle,
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

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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), in table 2 under the center heading ``Reg 2--
Permit Requirements,'' revise the entry for 2.04 to read as follows:


Sec.  52.920   Identification of plan.

* * * * *
    (c) * * *

                Table 2 to Paragraph (c)--EPA-Approved Jefferson County Regulations for Kentucky
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                                             EPA                             District
        Reg            Title/subject       approval     Federal Register    effective          Explanation
                                             date            notice            date
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                                           Reg 2--Permit Requirements
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                                                  * * * * * * *
2.04..............  Construction or         3/7/2024  [Insert citation of    3/16/2022  Except for the ethanol
                     Modification of                   publication].                     production facilities
                     Major Sources in                                                    exclusion in Sections
                     or Impacting upon                                                   1.4.3.20 and 5.20.
                     Non-Attainment                                                      Additionally, EPA is
                     Areas (Emission                                                     retaining Sections
                     Offset                                                              2.2.20 and 10 from
                     Requirements).                                                      Version 7 of Regulation
                                                                                         2.04, locally effective
                                                                                         on March 17, 1993.
 
 
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[FR Doc. 2024-04782 Filed 3-6-24; 8:45 am]
BILLING CODE 6560-50-P