# Clean Air Act Proposed Interim Approval of Operating Permits Program; Kentucky Natural Resources and Environmental Protection Cabinet

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URL: https://www.frixlaw.com/law-library/documents/fr%3A95-21938

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** September 5, 1995
- **Citation:** 60 FR 46071

## Text

[[Page 46072]]

ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70

[KY-95-01-FRL-5290-4]

Clean Air Act Proposed Interim Approval of Operating Permits
Program; Kentucky Natural Resources and Environmental Protection
Cabinet

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed interim approval.

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SUMMARY: The EPA proposes source category-limited interim approval of
the operating permits program submitted by the Kentucky Natural
Resources and Environmental Protection Cabinet (NREPC) for the purpose
of complying with Federal requirements which mandate that states
develop, and submit to EPA, programs for issuing operating permits to
all major stationary sources, and to certain other sources.

DATES: Comments on this proposed action must be received in writing by
October 5, 1995.

ADDRESSES: Written comments on this action should be addressed to Carla
E. Pierce, Chief, Air Toxics Unit/Title V Program Development Team, Air
Programs Branch, at the EPA Region 4 office listed below. Copies of
Kentucky's submittal and other supporting information used in
developing the proposed interim approval are available for inspection
during normal business hours at the following location:

Environmental Protection Agency, Region 4 Air Programs Branch, 345
Courtland Street, NE, Atlanta, Georgia 30365.
Division for Air Quality, Department for Environmental Protection,
Natural Resources and Environmental Protection Cabinet, 803 Schenkel
Lane, Frankfort, Kentucky 40601.

FOR FURTHER INFORMATION CONTACT: Yolanda Adams, Title V Program
Development Team, Air Programs Branch, Air, Pesticides & Toxics
Management Division, U.S. Environmental Protection Agency, Region 4,
345 Courtland Street, NE, Atlanta, Georgia 30365, (404) 347-3555, Ext.
4149.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

A. Introduction

As required under title V of the Clean Air Act Amendments (sections
501-507 of the Clean Air Act (``the Act'')), EPA has promulgated rules
which define the minimum elements of an approvable state operating
permits program and the corresponding standards and procedures by which
the EPA will approve, oversee, and withdraw approval of state operating
permits programs (see 57 FR 32250 (July 21, 1992)). These rules are
codified at 40 Code of Federal Regulations (CFR) part 70. Title V
requires states to develop, and submit to EPA, programs for issuing
these operating permits to all major stationary sources and to certain
other sources.
The Act requires that states develop and submit these programs to
EPA by November 15, 1993, and that EPA act to approve or disapprove
each program within one year after receiving the submittal. If the
state's submission is materially changed during the one-year review
period, 40 CFR 70.4(e)(2) allows EPA to extend the review period for no
more than one year following receipt of the additional material. EPA
received Kentucky's title V operating permit program submittal on
January 18, 1994. The Commonwealth provided EPA with additional
material in supplemental submittals dated November 15, 1994, April 14,
1995, May 3, 1995, and May 22, 1995. Because these supplements
materially changed the Commonwealth's title V program submittal, EPA
has extended the review period and will work expeditiously to
promulgate a final decision on Kentucky's program.
The EPA's program review occurs pursuant to section 502 of the Act
and the part 70 regulations, which together outline criteria for
approval or disapproval. Where a program substantially, but not fully,
meets the requirements of Part 70, EPA may grant the program interim
approval for a period of up to two years. Where a state requests source
category-limited interim approval and demonstrates compelling reasons
in support thereof, the EPA may also grant such an interim approval. If
EPA has not fully approved a program by two years after the November
15, 1993 date, or by the end of an interim program, it must establish
and implement a Federal program.

B. Federal Oversight and Sanctions

If EPA were to finalize this proposed source category-limited
interim approval, it would extend for two years following the effective
date of final interim approval, and could not be renewed. During the
interim approval period, the Commonwealth of Kentucky would be
protected from sanctions, and EPA would not be obligated to promulgate,
administer and enforce a Federal permits program for the Commonwealth
of Kentucky. Permits issued under a program with interim approval have
full standing with respect to part 70, and the 1-year time period for
submittal of permit applications by subject sources begins upon the
effective date of interim approval, as does the 3-year time period for
processing the initial permit applications.
Following final interim approval, if the Commonwealth of Kentucky
failed to submit a complete corrective program for full approval by the
date 6 months before expiration of the interim approval, EPA would
start an 18-month clock for mandatory sanctions. If the Commonwealth of
Kentucky then failed to submit a corrective program that EPA found
complete before the expiration of that 18-month period, EPA would be
required to apply one of the sanctions in section 179(b) of the Act,
which would remain in effect until EPA determined that the Commonwealth
of Kentucky had corrected the deficiency by submitting a complete
corrective program. Moreover, if the Administrator found a lack of good
faith on the part of the Commonwealth of Kentucky, both sanctions under
section 179(b) would apply after the expiration of the 18-month period
until the Administrator determined that the Commonwealth of Kentucky
had come into compliance. In any case, if, six months after application
of the first sanction, Kentucky still had not submitted a corrective
program that EPA found complete, a second sanction would be required.
If, following final interim approval, EPA were to disapprove
Kentucky's complete corrective program, EPA would be required to apply
one of the section 179(b) sanctions on the date 18 months after the
effective date of the disapproval, unless prior to that date Kentucky
had submitted a revised program and EPA had determined that it
corrected the deficiencies that prompted the disapproval. Moreover, if
the Administrator found a lack of good faith on the part of the
Commonwealth of Kentucky, both sanctions under section 179(b) would
apply after the expiration of the 18-month period until the
Administrator determined that the Commonwealth of Kentucky had come
into compliance. In all cases, if, six months after EPA applied the
first sanction, Kentucky had not submitted a revised program that EPA
had determined corrected the deficiencies that prompted disapproval, a
second sanction would be required.
In addition, discretionary sanctions may be applied where warranted
any time after the end of an interim approval period if Kentucky has
not timely submitted a complete corrective program or EPA has
disapproved a submitted corrective program. Moreover, if EPA has not
granted full

[[Page 46073]]
approval to Kentucky's program by the expiration of an interim approval
and that expiration occurs after November 15, 1995, EPA must
promulgate, administer and enforce a Federal permits program for the
Commonwealth of Kentucky upon interim approval expiration.

II. Proposed Action and Implications

A. Analysis of State Submission

The Commonwealth of Kentucky has requested source category-limited
interim approval of its part 70 operating permits program. EPA has
concluded that the operating permit program submitted by Kentucky
substantially meets the requirements of title V and part 70, and
proposes to grant source category-limited interim approval to the
program. For detailed information on the analysis of Kentucky's
submission, please refer to the Technical Support Document (TSD)
contained in the docket at the address noted above.
1. Support Materials
Pursuant to section 502(d) of the Clean Air Act as amended (1990
Amendments), the Governor of each state must develop and submit to the
Administrator an operating permits program under state or local law or
under an interstate compact meeting the requirements of title V of the
Act. Kentucky submitted, under the signature of Governor Brereton C.
Jones, the operating permits program, prepared by the NREPC, to be
implemented in all areas of the Commonwealth of Kentucky, except
Jefferson County. Kentucky has requested that the EPA approve its
operating permit program as a source category-limited interim program
for a period of two years.
The Kentucky Federal Operating Permits program description, Section
II of the submittal, addresses 40 CFR 70.4(b)(1) by describing how the
NREPC intends to carry out its responsibilities under the part 70
regulations. This program description has been deemed to be appropriate
for meeting the requirement of 40 CFR 70.4(b)(1).
Pursuant to 40 CFR 70.4(b)(3), the Governor is required to submit a
legal opinion from the attorney general (or the attorney for the state
air pollution control agency that has independent legal counsel)
demonstrating adequate authority to carry out all aspects of a title V
operating permits program. The Commissioner of the Department of Law,
who qualifies as independent legal counsel for the Kentucky Natural
Resources and Environmental Protection Cabinet, submitted such an
opinion in Section IV of the submittal, demonstrating adequate legal
authority as required by Federal law and regulation for interim
approval.
Section 70.4(b)(4) requires the submission of relevant permitting
program documentation not contained in the regulations, such as permit
application forms, permit forms and relevant guidance to assist in the
implementation of the permit program. Section V of the NREPC submittal
includes the permit application form with instructions, and Section 4
of the Title V Addendum includes a model permit. It has been determined
that the application forms and model permit substantially meet the
requirements of 40 CFR 70.5(c).
2. Regulations and Program Implementation
The Commonwealth of Kentucky has submitted Rule 401 KAR 50:034,
``Permit Application Form'', Rule 401 KAR 50:035, ``Permits,'' and Rule
401 KAR 50:038, ``Air Emissions Fee,'' for implementing the Kentucky
part 70 program as required by 40 CFR 70.4(b)(2). Sufficient evidence
of their procedurally correct adoption is included in Sections 1 and 4
of Kentucky's Title V Plan Addendum. Copies of all applicable
Commonwealth statutes and regulations which authorize the part 70
program, including those governing Commonwealth administrative
procedures, were submitted with Kentucky's program.
The Kentucky program, in Rule 401 KAR 50:035 Section 2,
substantially meets the requirements of 40 CFR 70.2 and 70.3 with
regard to applicability. However, Kentucky's definitions of ``emissions
unit'', and ``stationary source'' do not include emissions of any
pollutant listed under section 112(b) of the Act. Therefore, Kentucky's
program does not require emissions of all hazardous air pollutants
(HAP) listed pursuant to section 112(b) to be counted for major source
applicability. The pollutants listed in section 112(b) are not
considered regulated air pollutants until addressed by an applicable
requirement, such as a maximum achievable control technology (MACT)
standard; therefore, this omission in Kentucky's definitions prevents
issuance of permits to sources that emit section 112(b) pollutants
which are not yet covered by an applicable requirement. In addition,
Kentucky's definition of ``regulated air pollutant'' found in 401 KAR
50:035, Section 1(28)(a)4., omits the phrase in the part 70 definition
of regulated air pollutant ``* * * or other requirements established
under Section 112 of the Act,* * *''; therefore, Kentucky's program
does not require permits for all major sources. Since these omissions
in Kentucky's definitions could cause certain part 70 major sources to
be exempted from the permit process, Kentucky's program is eligible for
receiving source category-limited interim approval (SCL).
Section 503(c) of the Act requires that permitting authorities,
including those implementing an interim program, establish a schedule
for issuing the permits subject to the program such that ``at least
one-third of such permits will be acted on by such authority annually
over a period not to exceed 3 years after such effective date.'' By
rulemaking, the EPA spelled out an option by which it can make SCL
interim approval. Thus, although the State is required to issue permits
within 3 years to all sources subject to the interim approval, some
sources will not be subject to the requirement to obtain a permit until
full approval is granted. Because those part 70 sources not addressed
until the full approval are also subject to the 3-year phase-in
required by section 503(c), completion of the initial permitting of all
part 70 sources might not be completed until as late as 5 years after
the granting of interim approval.
Kentucky submitted a request dated May 22, 1995, for the EPA to
grant SCL interim approval of its part 70 operating permit program. The
EPA policy memo from John Seitz, Director of the Office of Air Quality
Planning and Standards dated August 2, 1993, entitled ``Interim Title V
Program Approvals'' establishes the criteria for granting interim
approvals. EPA can grant SCL interim approval to states whose programs
do not provide for permitting all required sources if the state makes a
showing that two criteria were met: (1) That there were ``compelling
reasons'' for the exclusions and (2) that all required sources will be
permitted on a schedule that ``substantially meets'' the requirements
of part 70.
EPA considers the omissions in Kentucky's definitions of
``emissions unit'', ``stationary source'', and ``regulated air
pollutant'', as compelling reasons for granting SCL interim approval.
Kentucky's SCL interim approval request included a revised transition
schedule that demonstrates the Commonwealth will permit at least 60% of
its sources and at least 80% of its emissions during the first three
years. The revised transition plan demonstrates that all part 70
sources will be permitted on a schedule that substantially meets the
requirements of part 70.
The EPA is therefore proposing to grant Kentucky SCL interim
approval.

[[Page 46074]]
SCL interim approval will allow Kentucky to implement the revised
transition schedule to permit all part 70 sources during the transition
period after the permit regulations have been revised. Revision of the
aforementioned definitions is a condition of full program approval.
Kentucky's program meets the following requirements set out in
EPA's part 70 operating permits program review. These requirements are
addressed in Kentucky's Rule 401 KAR 50:035 as follows: (A) Permit
applications (40 CFR 70.5), Section 3; (B) Provisions for permit
content (40 CFR 70.6), Section 4; (C) Operational flexibility
provisions (40 CFR 70.4(b)(12)), Sections 4 and 6; (D) Provisions for
permit renewals, reopenings, and public participation (40 CFR 70.7),
Sections 5, 6, and 7; (E) Permit review by EPA and affected states (40
CFR 70.8), Sections 8 and 9. The Kentucky Revised Statutes, Chapter
224, satisfy the requirements of 40 CFR 70.11 for enforcement
authority. The Kentucky program substantially meets the requirements of
40 CFR 70.7 with regard to permit issuance and revisions. Rule 401 KAR
50:035 Section 5(2)(a) allows for the incorporation of a
preconstruction permit into the title V permit as an administrative
amendment. Section 1(3)(e) defines administrative amendment as a
revision to a permit that incorporates into the part 70 permit
requirements from preconstruction review permits, if the
preconstruction review meets procedural requirements substantially
equivalent to those that would be applicable to the change if it were
subject to review as a permit revision (i.e., requirements of 40 CFR
70.7 and 70.8). Even though Section 5(2)(a) details the actual
procedural requirements necessary to incorporate preconstruction
permits into part 70 permits, it does not provide for EPA review
consistent with 40 CFR 70.8. For full approval of the Commonwealth's
program, Kentucky would need to revise Rule 401 KAR 50:035 Section
5(2)(a) to provide for EPA review consistent with 40 CFR 70.8.
Section 70.4(b)(2) requires states to include in their part 70
programs any criteria used to determine insignificant activities or
emission levels for the purposes of determining complete applications.
Section 70.5(c) states that an application for a part 70 permit may not
omit information needed to determine the applicability of, or to
impose, any applicable requirement, or to evaluate appropriate fee
amounts. Section 70.5(c) also states that EPA may approve, as part of a
state program, a list of insignificant activities and emissions levels
which need not be included in permit applications. Under part 70, a
state must request and EPA may approve as part of that state's program
any activity or emission level that the state wishes to consider
insignificant.
Kentucky establishes criteria for insignificant activities in Rule
401 KAR 50:035, Subsection 2(3); however, these criteria require that
all activities be included in the application. By requiring description
in the application, Kentucky's rule nullifies the effect of allowing
for insignificant activities as contemplated by the part 70 rule, which
would allow no or minimal description in the application. Since part 70
does not require a State to establish provisions for insignificant
activities, this does not create a program approval issue. However,
Kentucky has indicated to EPA that it plans to revise these provisions
to take advantage of the flexibility allowed by Part 70. EPA will
evaluate such revisions when they are submitted.
Part 70 of the operating permits regulations requires prompt
reporting of deviations from the permit requirements. Section
70.6(a)(3)(iii)(B) requires the permitting authority to define prompt
in relation to the degree and type of deviation likely to occur and the
applicable requirements. Although the permit program regulations should
define prompt for purposes of administrative efficiency and clarity, an
acceptable alternative is to define prompt in each individual permit.
EPA believes that prompt should generally be defined as requiring
reporting within two to ten days of the deviation. Two to ten days is
sufficient time in most cases to protect public health and safety as
well as to provide a forewarning of potential problems. For sources
with a low level of excess emissions, a longer time period may be
acceptable. However, prompt reporting must be more frequent than the
semiannual reporting requirement, given that this is a distinct
reporting obligation under 40 CFR 70.6(a)(3)(iii)(A). Where ``prompt''
is defined in the individual permit but not in the program regulations,
EPA may veto permits that do not require sufficiently prompt reporting
of deviations. Rule 401 KAR 50:035, Subsection 4(1)(c)3.b. states that
Kentucky will define prompt reporting in the permit in relation to the
degree and type of deviation likely to occur and the applicable
requirements.
Subsection 2(6) of Kentucky's general compliance requirements
regulation, Rule 401 KAR 50:055, provides the Commonwealth the
authority to grant individual variances for opacity standards for
emissions from a stack or a control device. The Commonwealth provides
that it will grant this variance upon a demonstration by the owner or
operator that the affected facility and associated air pollution
control equipment were operated and maintained in a manner to minimize
the opacity of emissions during the performance tests. The EPA regards
this provision as wholly external to the program submitted for approval
under Part 70, and consequently proposes to take no action on these
provisions of Commonwealth law in this rulemaking. The EPA does not
recognize the ability of a permitting authority to grant relief from
the duty to comply with a Federally enforceable part 70 permit, except
where such relief is granted through procedures allowed by part 70. In
other words, a variance does not affect the title V source until the
title V permit is modified pursuant to the procedures in part 70. EPA
reserves the right to enforce the terms of the part 70 permit where the
permitting authority purports to grant relief from the duty to comply
with a Part 70 permit in a manner inconsistent with Part 70 procedures.
A part 70 permit may also incorporate, via part 70 permit issuance or
modification procedures, the schedule of compliance set forth in a
variance. However, EPA reserves the right to pursue enforcement of
applicable requirements notwithstanding the existence of a compliance
schedule in a permit to operate. This is consistent with 40 CFR
70.5(c)(8)(iii)(C), which states that a schedule of compliance ``shall
be supplemental to, and shall not sanction noncompliance with, the
applicable requirements on which it is based.''
The complete Kentucky operating permits program submittal and the
TSD are available for review for more detailed information. The TSD
contains the detailed analysis of Kentucky's program and describes the
manner in which Kentucky's program meets all of the operating permit
program requirements of 40 CFR part 70.
3. Permit Fee Demonstration
Section 502(b)(3) of the Act requires that each permitting
authority collect fees sufficient to cover all reasonable direct and
indirect costs required to develop and administer its title V operating
permits program. Each title V program submittal must contain either a
detailed demonstration of fee adequacy or a demonstration that
aggregate fees collected from title V sources meet or exceed $25 per
ton per year (Consumer Price Index (CPI) adjusted from 1989). The $25
per ton amount is presumed, for program approval, to be sufficient to

[[Page 46075]]
cover all reasonable program costs and is thus referred to as the
``presumptive minimum.''
Kentucky has opted to adopt an approach similar to the
``presumptive minimum'' of $25/ton (annually adjusted by the CPI)
approach. Emission fees will be collected from all sources subject to
title V for actual emissions of each regulated pollutant, except carbon
monoxide. Also, fees will be assessed on the first 4,000 tons per
regulated pollutant per facility. A minimum fee of $150 is assessed for
sources emitting less than 25 tons per year.
A unique feature of the Kentucky emission fee is that the amount of
fee to be collected is established in regulation. Kentucky Rule 401 KAR
50:038 provides for the collection of $6,594,700 during state fiscal
year 1995-96. It further provides the authority to collect an amount
during each subsequent fiscal year, increased in direct proportion to
the CPI if needed to fund the program. While this guarantees that
Kentucky will continue to have the funds necessary to operate the title
V program at a level at least equal to the 1995-96 level, it does not
guarantee that the cost per ton of emissions will increase at a rate
equal to the CPI.
For 1995-96, Kentucky estimates the total billable emissions to be
211,919 tons. Based upon that estimate, the average cost per ton for
all sources, including any non-major sources subject to the title V
program, in 1995-96 will be $31.19 per ton. If the fee was collected
only from major sources, the estimated cost per ton would be $34.32 per
ton. Kentucky has demonstrated that the fees collected will be
sufficient to administer the program.
4. Provisions Implementing the Requirements of Other Titles of the Act
a. Authority and/or Commitments for Section 112 Implementation.
Kentucky has demonstrated in its title V program submittal broad legal
authority to incorporate into permits and enforce all applicable
requirements. This legal authority is contained in Kentucky's enabling
legislation and in regulatory provisions defining ``applicable
requirements'' and stating that the permit must incorporate all
applicable requirements. Kentucky has further supplemented its broad
legal authority with a commitment to ``take action, following
promulgation by EPA of regulations implementing section 112 of Title
III of the Clean Air Act to either incorporate such new or revised
provisions by reference into Kentucky rules or submit Kentucky-drafted
rules, for EPA approval, to implement these provisions.'' EPA has
determined that this commitment, in conjunction with Kentucky's broad
statutory and regulatory authority, adequately assures compliance with
all section 112 requirements. EPA regards this commitment as an
acknowledgement by Kentucky of its obligation to obtain further
regulatory authority as needed to issue permits that assure compliance
with section 112 applicable requirements. This commitment does not
substitute for compliance with part 70 requirements that must be met at
the time of program approval.
EPA is interpreting the above legal authority and commitment to
mean that Kentucky is able to carry out all section 112 activities. For
further rationale on this interpretation, please refer to the Technical
Support Document accompanying this proposed interim approval.
b. Implementation of Section 112(g) Upon Program Approval. EPA
issued an interpretive notice on February 14, 1995 (60 FR 8333), which
outlines EPA's revised interpretation of section 112(g) applicability.
The notice postpones the effective date of section 112(g) until after
EPA has promulgated a rule addressing that provision. The notice sets
forth in detail the rationale for the revised interpretation.
The section 112(g) interpretative notice explains that EPA is
considering whether the effective date of section 112(g) should be
delayed beyond the date of promulgation of the Federal rule so as to
allow states time to adopt rules implementing the Federal rule, and
that EPA will provide for any such additional delay in the final
section 112(g) rulemaking. Unless and until EPA provides for such an
additional postponement of section 112(g), Kentucky must have a
Federally enforceable mechanism for implementing section 112(g) during
the period between promulgation of the Federal section 112(g) rule and
adoption of implementing Commonwealth regulations.
EPA is aware that Kentucky lacks a program designed specifically to
implement section 112(g). However, Kentucky does have a preconstruction
review program within its permits rule that can serve as an adequate
implementation vehicle during the defined transition period because it
would allow the Commonwealth to select control measures that would meet
MACT, as defined in section 112, and incorporate these measures into a
Federally enforceable preconstruction permit.
For this reason, EPA proposes to approve the use of Kentucky's
preconstruction review program found in Rule 401 KAR 50:035, under the
authority of title V and part 70, solely for the purpose of
implementing section 112(g) to the extent necessary during the
transition period between section 112(g) promulgation and adoption of a
Commonwealth rule implementing EPA's section 112(g) regulations.
Although section 112(l) generally provides authority for approval of
state air programs to implement section 112(g), title V and section
112(g) provide for this limited approval because of the direct linkage
between the implementation of section 112(g) and title V. The scope of
this approval is narrowly limited to section 112(g) and does not confer
or imply approval for purpose of any other provision under the Act
(e.g., section 110). This approval will be without effect if EPA
decides in the final section 112(g) rule that sources are not subject
to the requirements of the rule until Commonwealth regulations are
adopted. The duration of this approval is limited to 18 months
following promulgation by EPA of the section 112(g) rule to provide
adequate time for the Commonwealth to adopt regulations consistent with
the Federal requirements.
c. Program for Delegation of Section 112 Standards as Promulgated.
Requirements for approval, specified in 40 CFR 70.4(b), encompass
section 112(l)(5) requirements for approval of a program for delegation
of section 112 standards as promulgated by EPA as they apply to part 70
sources. Section 112(l)(5) requires that the Commonwealth's program
contain adequate authorities, adequate resources for implementation,
and an expeditious compliance schedule, which are also requirements
under part 70. Therefore, EPA is also proposing to grant approval under
section 112(l)(5) and 40 CFR 63.91 of the Commonwealth's program for
receiving delegation of future section 112 standards that are unchanged
from the Federal standards as promulgated. In addition, EPA proposes
delegation of all existing standards and programs under 40 CFR parts 61
and 63 for part 70 sources and non-part 70 sources.1

[[Page 46076]]
Kentucky has informed EPA that it intends to accept delegation of
section 112 standards through adoption by reference. The details of the
Commonwealth's use of these delegation mechanisms are set forth in a
letter dated April 14, 1995, submitted by Kentucky as a title V program
addendum.

\1\The radionuclide National Emission Standards for Hazardous
Air Pollutant (NESHAP) is a section 112 regulation and therefore,
also an applicable requirement under the State operating permits
program for part 70 sources. There is not yet a Federal definition
of ``major'' for radionuclide sources. Therefore, until a major
source definition for radionuclide is promulgated, no source would
be a major section 112 source solely due to its radionuclide
emissions. However, a radionuclide source may, in the interim, be a
major source under part 70 for another reason, thus requiring a part
70 permit. The EPA will work with the State in the development of
its radionuclide program to ensure that permits are issued in a
timely manner.
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d. Commitment to implement Title IV of the Act. The Commonwealth of
Kentucky developed acid rain permit regulations as Rule 401 KAR 50:072,
which was submitted to EPA on April 19, 1995, as part of the operating
permits program. The Commonwealth also submitted standard acid rain
permit application forms which will be revised as updated forms are
provided by the EPA. These rules and permit application forms meet the
requirements of the acid rain program.
B. Proposed Actions

1. Source Category-Limited Interim Approval
The EPA is proposing to grant SCL interim approval to the operating
permit program submitted by Kentucky on December 27, 1993, and as
supplemented on November 15, 1994, April 14, 1995, May 3, 1995, and May
22, 1995. If this approval is promulgated, the State must make the
following changes to receive full approval: (1) Revise the definitions
of ``emissions unit'' and ``stationary source'' to include emissions of
any pollutant listed under section 112(b) of the Act; (2) revise the
definition of ``regulated air pollutant'' to include any pollutant
subject to any requirements established under section 112 of the Act;
and (3) revise Rule 401 KAR 50:035 section 5(2)(a) to provide for EPA
review consistent with 40 CFR 70.8. in order to allow for requirements
from preconstruction review permits to be incorporated into part 70
permits via administrative amendments.
This interim approval, which may not be renewed, extends for a
period of up to 2 years. During the interim approval period, the
Commonwealth is protected from sanctions for failure to have a program,
and EPA is not obligated to promulgate a Federal permits program in the
Commonwealth. Permits issued under a program with interim approval have
full standing with respect to Part 70, and the 1-year time period for
submittal of permit applications by subject sources begins upon interim
approval, as does the 3-year time period for processing the initial
permit applications.
2. Program for Straight Delegation of Section 112 Standards
As discussed above in section II.A.4.c, EPA is proposing to grant
approval under section 112(l)(5) and 40 CFR 63.91 of the Commonwealth's
program for receiving delegation of future section 112 standards that
are unchanged from Federal standards as promulgated. Additionally, EPA
is proposing to delegate existing standards and programs under 40 CFR
parts 61 and 63 for part 70 sources and non-part 70 sources.

III. Administrative Requirements

A. Request for Public Comments

The EPA is requesting comments on all aspects of this proposed
interim approval. Copies of the Commonwealth's submittal and other
information relied upon for the proposed interim approval are contained
in docket number KY-95-01 maintained at the EPA Regional Office. The
docket is an organized and complete file of all the information
submitted to, or otherwise considered by, EPA in the development of
this proposed interim approval. The principal purposes of the docket
are:
(1) To allow interested parties a means to identify and locate
documents so that they can effectively participate in the approval
process, and
(2) To serve as the record in case of judicial review. The EPA will
consider any comments received by October 5, 1995.

B. Executive Order 12866

The Office of Management and Budget has exempted this action from
Executive Order 12866 review.

C. Regulatory Flexibility Act

The EPA's actions under section 502 of the Act do not create any
new requirements, but simply address operating permits programs
submitted to satisfy the requirements of 40 CFR part 70. Because this
action does not impose any new requirements, it does not have a
significant impact on a substantial number of small entities.

D. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to state, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under Section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the proposed approval action promulgated
today does not include a Federal mandate that may result in estimated
costs of $100 million or more to either state, local, or tribal
governments in the aggregate, or to the private sector. This Federal
action approves pre-existing requirements under State or local law, and
imposes no new Federal requirements. Accordingly, no additional costs
to State, local, or tribal governments, or to the private sector,
result from this action.

List of Subjects in 40 CFR Part 70

Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Operating permits,
Reporting and recordkeeping requirements.

Authority: 42 U.S.C. 7401-7671q.

Dated: August 22, 1995.
Patrick M. Tobin,
Acting Regional Administrator.
[FR Doc. 95-21938 Filed 9-1-95; 8:45 am]
BILLING CODE 6560-50-P

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A95-21938. Public record. Not legal advice.