Approval and Promulgation of Implementation Plans; Commonwealth of Kentucky

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[KY-100-1-9814a; FRL-6126-1]

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 the revisions to the Commonwealth of

Kentucky's State Implementation Plan (SIP) for the general application

and attainment status designations. The Commonwealth of Kentucky,

through the Kentucky Natural Resources and Environmental Protection

Cabinet (KNREPC) submitted the revisions to EPA on December 19, 1997.

[[Page 39740]]

The revisions to the general application rule clarify the

reasonably available control technology (RACT) requirements to assure

compatibility with the 1990 Clean Air Act (CAA) requirements for major

sources of volatile organic compounds (VOCs) in ozone nonattainment

areas. The attainment status designations regulation is being amended

to make the boundaries and classifications of nonattainment areas for

ozone compatible with the Federal classification. The submittal also

included the transportation conformity regulation. Action on that

portion of the submittal will be taken in a separate document.

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. 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-100-1-9814. 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 December 19, 1997, the Commonwealth of

Kentucky, through the KNREPC, submitted revisions to the general

application and attainment status designations portions of the Kentucky

SIP to EPA. The general application section is amended to clarify the

applicability and RACT determination guidelines for VOC sources in

moderate and above ozone nonattainment areas. The attainment status

designations rule is amended to modify the boundaries and

classifications of nonattainment areas for ozone to make them

compatible with Federal revised classifications. The miscellaneous rule

revisions from the December 19, 1997, submittal that are being approved

in this action are discussed below.

Rule 401 KAR 50:012 Section 1--This new subsection is added to

clarify the RACT requirements to assure compatibility with the CAA

requirements for major sources of VOC in ozone nonattainment areas. The

subsection specifies the applicability and guidelines for RACT

determination.

Rule 401 KAR 50:010 Section 1.3--The definition of ``road'' is

added for clarification in the rule.

Rule 401 KAR 50:010 Section 2.3--The definition of ``road,

junction, or intersection of two (2) or more roads'' is added to

clarify a nonattainment boundary for a designated ozone nonattainment

area.

Rule 401 KAR 50:010 Section 7--This section is revised to change

the roads used in portions of Bullitt County and Oldham County to

define the Kentucky portion of the Louisville moderate ozone

nonattainment area. The Federally approved nonattainment boundary was

revised on September 20, 1995 (See 60 FR 48653). This revision makes

the Kentucky rule consistent with the EPA approved boundaries.

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 the 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 Order 12866, entitled

Regulatory Planning and Review.

B. Executive Order 13045

The 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.

[[Page 39741]]

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).

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

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.

E. 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).

F. 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,

Acting 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)(89) to read

as follows:

Sec. 52.920 Identification of plan.

* * * * *

(c)

(89) Revisions to the Kentucky State Implementation Plan submitted

by the Natural Resources and Environmental Protection Cabinet on

December 19, 1997. The regulations being revised are 401 KAR 50:012

General application and 401 KAR 51:010 Attainment status designations.

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

401 KAR 50:012 General application and 401 KAR 51:010 Attainment status

designations are effective November 12, 1997.

(ii) Other material. None.

[FR Doc. 98-19841 Filed 7-23-98; 8:45 am]

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