Approval and Promulgation of Implementation Plans; Commonwealth of Kentucky

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[KY-93-9821a; FRL-6125-8]

Approval and Promulgation of Implementation Plans; Commonwealth

of Kentucky

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving a revision to the Commonwealth of Kentucky's

State Implementation Plan (SIP) for the Prevention of Significant

Deterioration (PSD) of air quality. The revision was submitted to EPA

on March 21, 1997, by the Commonwealth of Kentucky through the Kentucky

Natural Resources and Environmental Protection Cabinet. The PSD rule is

revised to incorporate the Federal PSD rule revisions. The changes to

the rules incorporate revisions to the ``Guidelines on Air Quality

Models'' document and revise the allowable increase of particulate

matter from increments for suspended particulate (TSP) to increments

for particulate matter with an aerodynamic diameter of less than or

equal to a nominal 10 micrometers (PM10). The revision also includes

the Federal exclusion for pollution control projects undertaken at

electric utility units.

DATES: This final rule is effective September 22, 1998 unless adverse

or critical comments are received by August 24, 1998. If adverse

comment is received, EPA will publish a timely withdrawal of the direct

final rule in the Federal Register and inform the public that the rule

will not take effect.

ADDRESSES: Written comments on this action should be addressed to Karla

L.

[[Page 39742]]

McCorkle at the Environmental Protection Agency, Region 4, Air Planning

Branch, 61 Forsyth Street, SW, Atlanta, Georgia 30303. Copies of

documents relative to this action are available for public inspection

during normal business hours at the following locations. The interested

persons wanting to examine these documents should make an appointment

with the appropriate office at least 24 hours before the visiting day.

Reference file KY-93-9821. The Region 4 office may have additional

background documents not available at the other locations.

Air and Radiation Docket and Information Center (Air Docket 6102), U.S.

Environmental Protection Agency, 401 M Street, SW, Washington, DC

20460.

Environmental Protection Agency, Region 4 Air Planning Branch, 61

Forsyth Street, SW, Atlanta, Georgia 30303.

Commonwealth of Kentucky, Natural Resources and Environmental

Protection Cabinet, 803 Schenkel Lane, Frankfort, Kentucky 40601.

FOR FURTHER INFORMATION CONTACT: Karla L. McCorkle at 404/562-9043.

SUPPLEMENTARY INFORMATION: On March 21, 1997, the Commonwealth of

Kentucky through the Kentucky Natural Resources and Environmental

Protection Cabinet submitted a revision to the Prevention of

Significant Deterioration (PSD) rule of the Kentucky SIP. The SIP

revision proposes to incorporate the Federal PSD rule revisions. The

changes to the Federal rule include a revision to the ``Guideline on

Air Quality Models'' document in the PSD rules, as publicized in the

Federal Register July 20, 1993 and August 9, 1995, revision to the PSD

allowable increases to PM10 increments, as publicized in the Federal

Register June 3, 1993, and the exclusion for pollution control projects

undertaken at electric utility units as publicized in the Federal

Register July 21, 1992. The specific rule revisions from the March 21,

1997, submittal that are being approved in this action are discussed

below.

Rule 401 KAR 51:017 Sections 1-20--Throughout these sections, the

term ``administrative'' was added before the word ``regulation'' for

clarity.

Rule 401 KAR 51:017 Section 1--Definitions consistent with Federal

definitions are added for ``clean coal technology,'' ``clean coal

technology demonstration project,'' ``electric utility steam generating

unit,'' ``pollution control project,'' ``reactivation of a very clean

coal-fired electric utility steam generating unit,'' ``repowering,''

``representative actual annual emissions,'' and ``temporary clean coal

technology demonstration project.'' The following definitions have been

amended to be consistent with the Federal rules: ``actual emissions,''

``complete,'' ``major modification,'' and ``minor source baseline

date.''

Rule 401 KAR 51:017 Sections 6,8,21,--Various sentence and word

structure changes were made to add clarity.

Rule 401 KAR 51:017 Section 6(3)--This subsection was deleted

because it is obsolete.

Rule 401 KAR 51:017 Sections 1,2,8,9,11,12,18,21--In these

sections, references are amended and added for clarity.

Rule 401 KAR 51:017 Sections 22,23,24,25--These sections are

updated to reflect changes in PSD increments from TSP to PM10.

Rule 401 KAR 51:017 Section 8(10)--This subsection is added to

provide an exemption to the requirements of Section 10(2) for major

stationary sources of PM10 that are constructing or modifying if a

completed permit application was received before the effective date of

the maximum allowable increases for PM10. The exemption allows the

current maximum allowable increases for TSP as an alternative to that

for PM10.

Rule 401 KAR 51:017 Section 8(11)--This subsection is added to

provide an exemption to the requirements of Section 10(2). This utility

exemption of the maximum allowable increases for nitrogen oxides

applies to the construction or modification of a stationary source if a

completed permit application was received before the effective date.

Rule 401 KAR 51:017 Section 11(1)--This section is updated to adopt

by reference the new EPA ``Guideline on Air Quality Models.''

Final Action

EPA is approving the aforementioned changes to the SIP. The Agency

has reviewed this request for revision of the Federally approved SIP

for conformance with the provisions of the CAA amendments enacted on

November 15, 1990. The Agency has determined that this action conforms

with those requirements.

EPA is publishing this rule without prior proposal because the

Agency views this as a noncontroversial amendment and anticipates no

adverse comments. However, in the proposed rules section of this

Federal Register publication, EPA is publishing a separate document

that will serve as the proposal to approve the SIP revision should

relevant adverse comments be filed. This rule will be effective

September 22, 1998 without further notice unless the Agency receives

relevant adverse comments by August 24, 1998.

If the EPA receives such comments, then EPA will publish a document

withdrawing the final rule and informing the public that the rule will

not take effect. All public comments received will then be addressed in

a subsequent final rule based on the proposed rule. The EPA will not

institute a second comment period on the proposed rule. Only parties

interested in commenting on this rule should do so at this time. If no

such comments are received, the public is advised that this rule will

be effective on September 22, 1998 and no further action will be taken

on the proposed rule.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any state implementation plan. Each request for revision to

the state implementation plan shall be considered separately in light

of specific technical, economic, and environmental factors and in

relation to relevant statutory and regulatory requirements.

Nothing in this action should be construed as making any

determination or expressing any position regarding Kentucky's audit

privilege and penalty immunity law KRS 224.01-040 or its impact upon

any approved provision in the SIP, including the revision at issue

here. The action taken herein does not express or imply any viewpoint

on the question of whether there are legal deficiencies in this or any

other Clean Air Act program resulting from the effect of Kentucky's

audit privilege and immunity law. A state audit privilege and immunity

law can affect only state enforcement and cannot have any impact on

federal enforcement authorities. EPA may at any time invoke its

authority under the Clean Air Act, including, for example, sections

113, 167, 205, 211 or 213, to enforce the requirements or prohibitions

of the state plan, independently of any state enforcement effort. In

addition, citizen enforcement under section 304 of the Clean Air Act is

likewise unaffected by a state audit privilege or immunity law.

Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from review under Executive

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Order 12866, entitled Regulatory Planning and Review.

B. Executive Order 13045

This final rule is not subject to Executive Order 13045, entitled

Protection of Children from Environmental Health Risks and Safety

Risks, because it is not an ``economically significant'' action under

Executive Order 12866.

C. Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. 603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

SIP approvals under section 110 and subchapter I, part D of the

Clean Air Act do not create any new requirements but simply approve

requirements that the State is already imposing. Therefore, because the

Federal SIP approval does not impose any new requirements, I certify

that it does not have a significant impact on any small entities

affected. Moreover, due to the nature of the Federal-State relationship

under the CAA, preparation of a flexibility analysis would constitute

Federal inquiry into the economic reasonableness of state action. The

Clean Air Act forbids EPA to base its actions concerning SIPs on such

grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976);

42 U.S.C. 7410(a)(2) and 7410(k)(3).

C. 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

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 approval action promulgated 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

requirements. Accordingly, no additional costs to State, local, or

tribal governments, or to the private sector, result from this action.

D. Submission to Congress and the General Accounting Office

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 rule 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. This rule is not a

``major rule'' as defined by 5 U.S.C. 804(2).

E. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action must be filed in the United States Court

of Appeals for the appropriate circuit by September 22, 1998. Filing a

petition for reconsideration by the Administrator of this final rule

does not affect the finality of this rule 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, Hydrocarbons,

Incorporation by reference, Intergovernmental relations, Ozone,

Reporting and recordkeeping requirements.

Dated: June 19, 1998.

A. Stanley Meiburg,

Regional Administrator, Region 4.

Part 52 of chapter I, title 40, Code of Federal Regulations, is

amended as follows:

PART 52--[AMENDED]

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

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

Subpart S--Kentucky

2. Section 52.920, is amended by adding paragraph (c)(87) to read

as follows:

Sec. 52.920 Identification of plan.

* * * * *

(c) * * *

(87) Revisions to the Kentucky State Implementation Plan submitted

by the Natural Resources and Environmental Protection Cabinet on March

21, 1997. The regulation being revised is 401 KAR 51:017 Prevention of

significant deterioration of air quality.

(i) Incorporation by reference. Division of Air Quality regulations

401 KAR 51:017 Prevention of significant deterioration of air quality

effective March 12, 1997.

(ii) Other material. None.

[FR Doc. 98-19836 Filed 7-23-98; 8:45 am]

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