Louisville Metro Air Pollution Control District Draft Amendments to Regulations 1.06, 1.15, 2.04, and 2.17

The Louisville Metro Air Pollution Control District (LMAPCD or District) published an announcement on November 17, 2021 that there would be a Policy Committee meeting to discuss the draft amendments to the following regulations:

• Regulation 1.06: Stationary Source Self-Monitoring, Emissions Inventory Development, and Reporting
• Regulation 1.15: Version of Federal Regulations Adopted and Incorporated by Reference
• Regulation 2.04: Construction or Modification of Major Sources in or Impacting upon Non-Attainment Areas (Emission Offset Requirements)
• Regulation 2.17: Federally Enforceable District Origin Operating Permits

The Policy Committee meeting was held on the same day as the announcement and the reasoning for the amendments were explained in detail.  Following the Policy Committee meeting, the draft amendments were posted for an 8-week public comment period from November 19, 2021 to January 14, 2022.  A hearing will be held at the conclusion of the public comment period on January 19, 2022.

ALL4 attended the Policy Committee meeting to hear the District explain the reasoning for amending the four regulations.  The only amendment that we expect could have a significant impact on regulated entities is the change proposed to Regulation 2.04.  Three of the amendments are minor in nature and will likely be accepted with no revision because the changes are simply procedural.  The following sections dive into the details of the proposed amendment to each regulation.

Draft Amendment to Regulation 2.04

Effective August 3, 2018, Jefferson County was designated as marginal nonattainment for the 2015 Ozone National Ambient Air Quality Standard (NAAQS).  Regulation 2.04 outlines the Nonattainment New Source Review (NNSR) program established by the U.S. Environmental Protection Agency (U.S. EPA).  Jefferson County did not meet the requirements for attainment by the end of 2020, so its status has changed from marginal to moderate nonattainment.  You can read more about the nonattainment status of Kentucky in Patricia Barreto’s article here.  If the nonattainment status continues to decline, the NNSR program could become more broadly applicable going forward due to an associated reduction in the major stationary source threshold.  However, the District’s NNSR provisions under Regulation 2.04, last promulgated in 1993, have not historically accounted for several reforms instituted by U.S. EPA from 2002-2020 that were intended to streamline the permitting process.  With these amendments, Regulation 2.04 will now align with U.S. EPA’s current NNSR program.  The following are the most significant reforms to the NNSR program that the District proposes to make, as stated in the Preliminary Regulatory Impact Assessment:

• “Changes to how baseline emissions are calculated by allowing use of ‘use any consecutive 24-month period in the past 10 years to determine … baseline actual emissions’;”
• “The employment of the ‘actual-to-projected-actual applicability test’ in place of the ‘actual-to-potential test’;”
• “New ‘Plantwide Applicability Limits (PALs),’ an optional source-wide cap on emissions that allows modifications, even those that cause increases in emissions, without triggering NSR, so long as the source-wide cap is not exceeded;”
• “’Project Aggregation,’ which stated that just because activities occurred close in time or even simultaneously, they were not necessarily ‘substantially related’; and also establishing a rebuttable presumption that activities occurring more than three years apart were not substantially related;” and
• “’Project Emissions Accounting,’ which allowed both emissions increases and decreases to be considered (in step 1) when determining whether the modification would result in a significant emissions increase.”

The proposed changes to Regulation 2.04 would provide more options and flexibility to facilities that may be subject to this program in Jefferson County.  As stated by a member of the District who was present at the meeting, regulated entities looked upon U.S. EPA’s reforms favorably.  Per statements made by the LMAPCD Regulatory Coordinator, there have been no applications submitted to the LMAPCD for a NNSR permitting action in the last twenty years.  On the other hand, the amendments provide more flexibility for affected facilities to determine applicability under NNSR, so it is possible that the provisions will still see limited utilization.

Minor Draft Amendments to Regulations 1.06, 1.15, and 2.17

Regulation 1.06 contains provisions for monitoring and emissions reporting, and Section 6 pertains to emissions reporting for the precursors of ozone, Nitrous Oxides (NO_X) and Volatile Organic Compounds (VOC).  The amendment is being made to clarify a perceived exemption.  Previously, the regulation exempted facilities from reporting if their actual emissions were less than 25 tons per year of VOC or NO_X.  The amended regulation clarifies that facilities will have to report actual emissions if their potential emissions are over 25 tons per year for VOC or NO_X.  The intent of the original regulation has not changed, only the wording to define the intent more clearly.

Regulation 1.15 is simply being updated to include the most recent federal regulations by reference.  The regulation currently references the 2018 version of the federal regulations.  This will be updated to reference the 2021 version; the changes to the referenced regulations have already been implemented. Among the important updates to the Federal references is the publication of 85 FR 73854: Reclassification of Major Sources as Area Sources Under Section 112 of the Clean Air Act, which is discussed here by Amy Marshall.

Regulation 2.17 is being amended to add a requirement to ensure that facilities are submitting timely permit renewal applications under the Federally Enforceable District Origin Operating Permits (FEDOOP) program.  As of now, there is no specific requirement outlined by the District, but it has been a commonly accepted practice to renew permits in a timely fashion similar to how it is enforced in other regulations such as 2.16: Title V Operating Permits.

Impact Summary

The most significant change from this wave of amendments is to Regulation 2.04.  The NNSR program is complex and has stringent compliance requirements associated with it in order to protect ambient air quality nonattainment areas.  The proposed amendments will align with federal standards and provide additional permitting flexibility to subject facilities.

The other three amendments are primarily administrative.  The intent of Regulations 1.06, 1.15, and 2.17 were already being implemented but the language was not consistent with the District’s policy and procedures.

ALL4 will continue to follow the progress of these amendments following the public hearing in January 2022.  If you have any questions about the proposed changes, please contact me at bjohnson@all4inc.com or 502.874.4500.