2023-04012. Air Plan Approval; Kentucky; Revision to Federally Enforceable District Origin Operating Permits

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

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 15, 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). The District's revision modifies the permit application timing requirements in the Federally Enforceable District Origin Operating Permits (FEDOOP) rule in the Jefferson County portion of the Kentucky SIP (Jefferson County Local Implementation Plan, or LIP). EPA is finalizing these changes pursuant to the Clean Air Act (CAA or Act).

DATES:

This rule is effective March 31, 2023.

ADDRESSES:

EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2022-0727. 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. 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:

Pearlene Williams-Miles, 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 [phone]. Ms. Williams-Miles can also be reached via electronic mail at [e-mail].

SUPPLEMENTARY INFORMATION:

I. Overview

On June 15, 2022, the Commonwealth of Kentucky submitted changes to the Jefferson County LIP for EPA approval.^{[1]  [2]} EPA is approving changes to Section 4— Permit Applications of the District's Regulation 2.17— Federally Enforceable District Origin Operating Permits.^[3] Under Regulation 2.17, Section 1.1, a FEDOOP is an operating permit that contains a federally enforceable condition, limit, or provision that is issued to a stationary source that is not, or would not subsequently be, required to obtain a permit under Regulation 2.16— Title V Operating Permits.

The changes in the June 15, 2022, submission add timing requirements for sources applying for FEDOOP permits that are similar to those in Regulation 2.16. Through a Notice of Proposed Rulemaking (NPRM) published on December 27, 2022 (87 FR 79261), EPA proposed to approve these changes as being consistent with the CAA. Additional details on Kentucky's June 15, 2022, revision and EPA's analysis of the changes can be found in the December 27, 2022, NPRM. Comments on the December 27, 2022, NPRM were due on or before January 26, 2023. EPA received one anonymous comment on the NPRM. That comment was unrelated to the specifics of the NPRM.

II. Incorporation by Reference

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with the 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 2.17— Federally Enforceable District Origin Operating Permits, version 5, with a local-effective date of March 16, 2022, which adds timing requirements to the permit application process. 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.^[4]

III. Final Action

EPA is approving the aforementioned changes to Regulation 2.17— Federally Enforceable District Origin Operating Permits, with a local-effective date of March 16, 2022, into the Jefferson County LIP. EPA is approving these changes because they are consistent with 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 Act and applicable Federal regulations. See42 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 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 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.

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 May 1, 2023. 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
• Lead
• Nitrogen dioxide
• Ozone
• Particulate matter
• Sulfur oxides
• Volatile organic compounds

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

Dated: February 22, 2023.

Daniel Blackmon,

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

1. The authority citation for part 52 continues to read as follows:

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

Subpart S—Kentucky

2. In § 52.920(c), in table 2, revise the entry for “2.17” to read as follows:

§ 52.920

Identification of plan.

* * * * *

(c) * * *

Table 2—EPA-Approved Jefferson County Regulations for Kentucky

Reg	Title/subject	EPA approval date	Federal Register notice	District effective date	Explanation
*         *         *         *         *         *         *
2.17	Federally Enforceable District Origin Operating Permits	3/1/2023	[Insert citation of publication]	3/16/2022
*         *         *         *         *         *         *

* * * * *

Footnotes

1.  EPA received this submission on June 13, 2022, in a letter dated June 15, 2022. Throughout this final rulemaking, this submission will be referred to as the June 15, 2022, submission.

2.  In 2003, the City of Louisville and Jefferson County governments merged, and the “Jefferson County Air Pollution Control District” was renamed the “Louisville Metro Air Pollution Control District.” However, to be consistent with the terminology used in the subheading in Table 2 of 40 CFR 52.920(c), throughout this notice we refer to regulations contained in the Jefferson County portion of the Kentucky SIP as the “Jefferson County” regulations.

3.  The June 15, 2022, submittal contains changes to other Kentucky SIP-approved rules that are not addressed in this notice. EPA will act on those rules in separate actions.

4.   See62 FR 27968 (May 22, 1997).