Air Permitting Considerations in Kentucky

After a record-setting year of economic growth in 2021 according to the Kentucky Cabinet for Economic Development (KCED), the Bluegrass State continues to experience an industrial boom. KCED indicated the bourbon, automotive, chemical, and primary metals industries are just a few of the top manufacturers in the state, and Kentucky’s enticing economic incentives are attracting more companies. As is the case across the United States, Clean Air Act (CAA) permitting may be required for new and existing facilities in Kentucky that emit regulated air pollutants. Oftentimes, the air permitting process can be difficult to navigate, especially for companies who are new to Kentucky. The goal of this article is to provide a general overview of CAA permitting in Kentucky and highlight a few key considerations.

Who Needs a CAA Permit?

Types of CAA permits include construction and operation. A construction permit may be required prior to commencing construction of a new facility or project, and an operating permit may be required for a facility to operate in compliance with the regulations set forth in the CAA. Note the Kentucky Division for Air Quality (KDAQ) issues combined construction/operating permits to all source categories while the Louisville Metro Air Pollution Control District issues combined construction/operating permits only to non-Title V sources. A facility’s requirement to obtain a CAA operating and/or construction permit depends on its design capacity, type of equipment, and corresponding potential to emit (PTE) regulated air pollutants (defined below).

The four types of CAA permits issued in Kentucky are:

• Registrations – facilities with PTE:
  • ≥2 tons per year (tpy) but <10 tpy of a hazardous air pollutant (HAP),
  • ≥5 tpy but <25 tpy of combined HAP,
  • ≥10 tpy but <25 tpy of a regulated air pollutant, or
  • The source is subject to a New Source Performance Standard (NSPS) or National Emission Standards for Hazardous Air Pollutants.

• Minor/State-Origin Permits – sources that exceed registration PTE thresholds but do not exceed major source thresholds.
• Federally Enforceable State Origin Permits (FESOP) or Federally Enforceable District Origin Operating Permit (FEDOOP) also known as synthetic minor – sources that otherwise would exceed major source thresholds but take voluntary operating restrictions so their PTE is below major source thresholds.
• Major/Title V – sources whose PTE is greater than major source thresholds.

Regulatory Agencies in Kentucky

CAA permitting in Kentucky is handled by two regulatory agencies: KDAQ and LMAPCD. LMAPCD regulates sources in Jefferson County while KDAQ regulates sources in the rest of the state. Both KDAQ and LMAPCD follow regulations set forth in the Kentucky Administrative Regulations (KAR), but LMAPCD has additional regulations specific to Jefferson County. According to KDAQ, there are no permit application fees and the maximum regulatory time frames for construction and/or operating permit issuance are:

• Registration – 60 days
• State-Origin – 120 days
• FESOP – 210 days
• Major/Title V – 255 days

A registered source may commence construction immediately upon submittal of a complete registration form to KDAQ.

According to LMAPCD, the following filing fees apply to CAA permit applications submitted during the 2023 fiscal year (July 1, 2022 to June 30, 2023):

• Registration – $622.24
• Minor – $622.24
• FEDOOP – $933.35
• Major/Title V – $1,244.48

LMAPCD does not specify any CAA regulatory timeframes for permit issuance after submittal of an application, and neither KDAQ nor LMAPCD offer a fast-track or expedited program to speed up the application review and permit issuance process. A general rule for facilities that may require a CAA permit is to begin the process as early as possible to help keep planned construction or operation on schedule.

Special Considerations

There are a few considerations that facilities will need to be aware of if they are subject to CAA permitting in Kentucky. Currently eight counties in Kentucky have designated nonattainment areas that, depending on the nonattainment status, could have different CAA permitting thresholds from those in attainment areas.

• Part of Boone County – 8-hour ozone (2015)
• Bullitt County – 8-hour ozone (2015)
• Part of Campbell County – 8-hour ozone (2015)
• Part of Henderson County – Sulfur dioxide (2010)
• Jefferson County – 8-hour ozone (2015)
• Part of Kenton County – 8-hour ozone (2015)
• Oldham County – 8-hour ozone (2015)
• Part of Webster County – Sulfur dioxide (2010)

The areas in nonattainment for sulfur dioxide do not have lower permitting thresholds, and the areas in nonattainment for 8-hour ozone are designated marginal status, so the permitting thresholds for volatile organic compounds (VOC) remain the same as those for attainment areas. However, nonattainment status and permitting thresholds can change depending on the ambient air quality, so it is important for facilities to remain up to date on the attainment status of the area where they are or will be located.

Another key consideration when evaluating CAA permitting in Jefferson County is the Strategic Toxic Air Reduction (STAR) program. LMAPCD has established the STAR program to reduce ambient air concentrations of toxic air contaminants (TAC) in Jefferson County. Facilities located in Jefferson County need to perform additional evaluations to determine if TAC emissions are de minimis. If TAC emissions are not de minimis, LMAPCD may require facilities to take additional actions, such as performing air emissions modeling, and /or implementing an Emissions Reduction Plan. Companies considering constructing and operating in Jefferson County will need to comply with all air quality regulations set forth by LMAPCD.

Summary

CAA permitting varies state by state and navigating the sea of regulations can be difficult. Kentucky’s regulatory agencies closely follow federal regulations, but there are a few additional considerations, such as county-specific nonattainment status and LMAPCD’s STAR program, that facilities will need to evaluate. Finally, it is imperative that facilities begin the CAA permitting process early, and work closely with an air quality permitting expert in order to comply with all applicable regulations and keep the project’s timeline on track. If you have questions about permitting in Kentucky, please reach out to Jason Moore at jmoore@all4inc.com.