Clean Air Act Final Interim Approval of Operating Permits Program; Kentucky

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[KY-95-01; FRL-5330-2]

Clean Air Act Final Interim Approval of Operating Permits

Program; Kentucky

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final interim approval.

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SUMMARY: The EPA is promulgating source category-limited (SCL) interim

approval of the Operating Permits Program submitted by the Kentucky

Natural Resources and Environmental Protection Cabinet for the purpose

of complying with Federal requirements for an approvable State program

to issue operating permits to all major stationary sources, and to

certain other sources.

EFFECTIVE DATE: December 14, 1995.

ADDRESSES: Copies of the State's submittal and other supporting

information used in developing the final interim approval are available

for inspection during normal business hours at the following location:

U.S. Environmental Protection Agency, Region 4, 345 Courtland Street

NE, Atlanta, Georgia 30365, on the 3rd floor of the Tower Building.

Interested persons wanting to examine these documents, contained in EPA

docket number KY-95-01, should make an appointment at least 24 hours

before the visiting day.

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

Title V of the 1990 Clean Air Act Amendments (sections 501-507 of

the Clean Air Act (``the Act'')), and implementing regulations at 40

Code of Federal Regulations (CFR) part 70 require that states develop

and submit operating permits programs to EPA by November 15, 1993, and

that EPA act to approve or disapprove each program within one year

after receiving the submittal. 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

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period of up to 2 years. If EPA has not fully approved a program by

November 15, 1995, or by the end of an interim program, it must

establish and implement a Federal program.

On September 5, 1995, EPA proposed SCL interim approval of the

operating permits program for the Commonwealth of Kentucky. See 60 FR

46072. The September 5, 1995 notice also proposed approval of

Kentucky's interim mechanism for implementing section 112(g) and for

delegation of section 112 standards as promulgated. EPA did not receive

any comments on the proposal. In this action, EPA is promulgating SCL

interim approval of Kentucky's operating permits program, and approving

the section 112(g) and section 112(l) mechanisms noted above.

II. Final Action and Implications

A. Title V Operating Permits Program

The EPA is promulgating SCL interim approval of the operating

permits program submitted by the Commonwealth of Kentucky on December

27, 1993, and as supplemented on November 15, 1994, April 14, 1995, May

3, 1995, and May 22, 1995. Kentucky's program substantially, but not

fully, meets the requirements of part 70 and meets the interim approval

requirements under 40 CFR 70.4. The Commonwealth 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.

The 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 scope of the Commonwealth's part 70 program approved in this

notice applies to all part 70 sources (as defined in the approved

program) within the Commonwealth of Kentucky, except Jefferson County

and any sources of air pollution over which an Indian Tribe has

jurisdiction. See, e.g., 59 FR 55813, 55815-55818 (Nov. 9, 1994). The

term ``Indian Tribe'' is defined under the Act as ``any Indian tribe,

band, nation, or other organized group or community, including any

Alaska Native village, which is Federally recognized as eligible for

the special programs and services provided by the United States to

Indians because of their status as Indians.'' See section 302(r) of the

CAA; see also 59 FR 43956, 43962 (Aug. 25, 1994); 58 FR 54364 (Oct. 21,

1993).

This interim approval, which may not be renewed, extends until

December 15, 1997. During this interim approval period, the

Commonwealth of Kentucky is protected from sanctions, and EPA is not

obligated to promulgate, administer and enforce a Federal operating

permits program in the Commonwealth. Permits issued under a program

with interim approval have full standing with respect to part 70, and

the one-year time period for submittal of permit applications by

subject sources begins upon the effective date of this interim

approval, as does the 3-year time period for processing the initial

permit applications.

If the Commonwealth fails to submit a complete corrective program

for full approval by June 16, 1997, EPA will start an 18-month clock

for mandatory sanctions. If Kentucky then fails to submit a corrective

program that EPA finds complete before the expiration of that 18-month

period, EPA will be required to apply one of the sanctions in section

179(b) of the Act, which will remain in effect until EPA determines

that Kentucky has corrected the deficiency by submitting a complete

corrective program. Moreover, if the Administrator finds a lack of good

faith on the part of the Commonwealth, both sanctions under section

179(b) will apply after the expiration of the 18-month period until the

Administrator determined that Kentucky had come into compliance. In any

case, if, six months after application of the first sanction, Kentucky

still has not submitted a corrective program that EPA has found

complete, a second sanction will be required.

If EPA disapproves Kentucky's complete corrective program, EPA will

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 the Commonwealth has submitted a revised program and EPA has

determined that it corrected the deficiencies that prompted the

disapproval. Moreover, if the Administrator finds a lack of good faith

on the part of the Commonwealth, both sanctions under section 179(b)

shall apply after the expiration of the 18-month period until the

Administrator determines that Kentucky has come into compliance. In all

cases, if, six months after EPA applies the first sanction, the

Commonwealth has not submitted a revised program that EPA has

determined corrects the deficiencies, a second sanction is required.

In addition, discretionary sanctions may be applied where warranted

any time after the expiration of an interim approval period if Kentucky

has not timely submitted a complete corrective program or EPA has

disapproved its submitted corrective program. Moreover, if EPA has not

granted full approval to Kentucky's program by the expiration of this

interim approval and that expiration occurs after November 15, 1995,

EPA must promulgate, administer and enforce a Federal permits program

for the Commonwealth upon interim approval expiration.

B. Preconstruction Permit Program Implementing Section 112(g)

EPA is approving the use of Kentucky's preconstruction review

program found in Rule 401 KAR 50:035 as a mechanism to implement

section 112(g) during the transition period between promulgation of

EPA's section 112(g) rule and Kentucky's adoption of rules specifically

designed to implement section 112(g). This approval is limited to the

implementation of the 112(g) rule and is effective only during any

transition time between the effective date of the 112(g) rule and the

adoption of specific rules by Kentucky to implement 112(g). The

duration of this approval is limited to 18 months following

promulgation by EPA of section 112(g) regulations, to provide the

Commonwealth with adequate time to adopt regulations consistent with

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

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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

State's program contain adequate authorities, adequate resources for

implementation, and an expeditious compliance schedule, which are also

requirements under part 70. Therefore, the EPA is also promulgating

approval under section 112(l)(5) and 40 CFR 63.91 of the Commonwealth's

program for receiving delegation of section 112 standards that are

unchanged from Federal standards as promulgated. This program for

delegations applies to both existing and future standards and to

sources covered by the part 70 program as well as non-part 70 sources.

III. Administrative Requirements

A. Docket

Copies of the Commonwealth's submittal and other information relied

upon for the final 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 final interim approval.

The docket is available for public inspection at the location listed

under the ADDRESSES section of this document.

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.

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.

Dated: October 31, 1995.

Patrick M. Tobin,

Acting Regional Administrator.

[FR Doc. 95-28066 Filed 11-13-95; 8:45 am]

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