Approval and Promulgation of Implementation Plans Kentucky: Adoption of General Conformity Regulations

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[KY-90-1-9735a: FRL-6130-3]

Approval and Promulgation of Implementation Plans Kentucky:

Adoption of General Conformity Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: On November 10, 1995, the Commonwealth of Kentucky, through

the Kentucky Natural Resources and Environmental Protection Cabinet

(KNREPC), submitted revisions to EPA concerning the adoption of general

conformity rules into the Kentucky State Implementation Plan (SIP).

Since general conformity rules are required by Section 176 of the Clean

Air Act (CAA) in all nonattainment and maintenance areas and the

Kentucky submittal is consistent with EPA requirements, these revisions

are being incorporated into the Federally approved Kentucky SIP.

DATES: This direct final rule is effective on September 25, 1998

without further notice, unless EPA receives adverse comment by August

26, 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

Gregory O. Crawford 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 locations below. 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-90-9735. 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, Gregory O. Crawford, 404/

562-9046.

Commonwealth of Kentucky, Natural Resources and Environmental

[[Page 40045]]

Protection Cabinet, 803 Schenkel Lane, Frankfort, Kentucky 40601, 502/

564-3350.

FOR FURTHER INFORMATION CONTACT: Gregory O. Crawford, 404/562-9046,

Regulatory Planning Section, Air Planning Branch, Air, Pesticides &

Toxics Management Division, Region 4 Environmental Protection Agency,

61 Forsyth Street, SW, Atlanta, Georgia, 30303.

SUPPLEMENTARY INFORMATION: After the 1990 Clean Air Act Amendments, EPA

designated Boone County, Boyd County, Campbell County, Daviess County,

Edmonson County, Fayette County, Greenup County, Hancock County,

Jefferson County, Kenton County, Livingston County, Marshall County,

Scott County, and portions of Bullitt and Oldham Counties, Kentucky, as

nonattainment areas for the ozone national ambient air quality

standards (NAAQS). In the November 30, 1993, Federal Register (58 FR

63214), EPA issued a final rule establishing criteria and procedures

for determining conformity of general Federal actions to state or

Federal implementation plans.

Because the counties mentioned above are either maintenance or

nonattainment areas, the general conformity rule is applicable in those

counties. Before any industrial development requiring approval from a

Federal agency can occur, a determination must be reached that such

action, when taken, will conform to the Kentucky SIP to maintain the

NAAQS for ozone. The Commonwealth was therefore required to revise

their SIP, to include general conformity criteria and procedures that

are consistent with the Federal rule. On October 11, 1995, KNREPC

formally adopted criteria and procedures for demonstrating and assuring

the ``Conformity of General Federal Actions to the Kentucky Air Quality

Implementation Plan.'' These regulations were submitted to EPA on

November 10, 1995, for adoption into the Federally enforceable SIP.

EPA has evaluated this SIP revision and has determined that the

Commonwealth of Kentucky has fully adopted by reference, the provisions

of the Federal general conformity rules specified in 40 CFR part 51,

subpart W. Therefore, EPA believes that the Commonwealth has met all

applicable requirements, and is approving the SIP revision concerning

the adoption of the general conformity regulations.

Final Action

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

has reviewed this request for revision of the Federally-approved State

implementation plan for conformance with the provisions of the 1990

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 25, 1998 without further notice unless the Agency receives

relevant adverse comments by August 26, 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. Only parties interested in

commenting should do so at this time. If no such comments are received,

the public is advised that this rule will be effective on September 25,

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.

I. 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.

C. Regulatory Flexibility

The Regulatory Flexibility Act (RFA) generally requires an agency

to conduct a regulatory flexibility analysis of any rule subject to

notice and comment rulemaking requirements unless the agency certifies

that the rule will not have a significant economic impact on a

substantial number of small entities. Small entities include small

businesses, small not-for-profit enterprises, and small governmental

jurisdictions. This final rule will not have a significant impact on a

substantial number of small entities because 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

create any new requirements, I certify that this action will not have a

significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State relationship under the

Clean Air Act, preparation of 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).

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

[[Page 40046]]

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 Comptroller General

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 25, 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, Carbon monoxide,

Hydrocarbons, Incorporation by reference, Intergovernmental relations,

Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and

recordkeeping requirements, Sulfur oxides.

Dated: June 25, 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 52.938 is added to read as follows:

Sec. 52.938 General conformity.

The General Conformity regulations were submitted on November 10,

1995, and adopted into the Kentucky State Implementation Plan (SIP).

The Commonwealth of Kentucky incorporated by reference regulations 40

CFR part 51, subpart W--determining conformity of General Federal

Actions to State or Federal Implementation Plans.

[FR Doc. 98-20007 Filed 7-24-98; 8:45 am]

BILLING CODE 6560-50-P