Designation of Areas for Air Quality Planning PurposesKentucky: Redesignation of the Muhlenberg County Sulfur Dioxide Secondary Nonattainment Area to Attainment

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[KY 99-1-9820a; FRL-6142-7]

Designation of Areas for Air Quality Planning Purposes--Kentucky:

Redesignation of the Muhlenberg County Sulfur Dioxide Secondary

Nonattainment Area to Attainment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: On November 21, 1997, the Commonwealth of Kentucky submitted,

through the Natural Resources and Environmental Protection Cabinet (the

Cabinet), a request for redesignation of Muhlenberg County, Kentucky,

to attainment for the secondary sulfur dioxide (SO2)

National Ambient Air Quality Standard (NAAQS). The secondary

nonattainment designation for SO2 was based on the fact that

the Tennessee Valley Authority (TVA) Paradise Steam Plant was out of

compliance with its allowable emission limit. The Cabinet submitted air

dispersion modeling which demonstrates that the secondary (NAAQS) for

SO2 are now being maintained. The EPA is approving the

request for redesignation.

DATES: This direct final rule is effective on October 19, 1998 without

further notice, unless EPA receives adverse comment by September 17,

1998. If EPA receives adverse comment, we 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 should be addressed to: Scott M. Martin,

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

Toxics Management Division, Region 4 Environmental Protection Agency,

61 Forsyth Street, Atlanta, Georgia 30303.

Copies of the 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.

Environmental Protection Agency, Region 4 Air Planning Branch, 61

Forsyth Street, Atlanta, Georgia 30303.

Mr. John E. Hornback, Director, Division of Air Quality, Department for

Environmental Protection, Natural Resources and Environmental

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

FOR FURTHER INFORMATION CONTACT: Scott M. Martin, Regulatory Planning

Section, Air Planning Branch, Air, Pesticides & Toxics Management

Division, Region 4 Environmental Protection Agency, 61 Forsyth Street,

Atlanta, Georgia 30303. The telephone number is 404-562-9036.

SUPPLEMENTARY INFORMATION: In a Federal Register document published

March 3, 1978, (see 43 FR 8962) Muhlenberg County was originally

designated nonattainment for the primary and secondary SO2

NAAQS. The nonattainment designation was due to noncompliance of the

TVA Paradise Plant and the Kentucky Utilities' Green River Plant. In a

June 24, 1983, Federal Register (see 48 FR 28988) EPA approved a

redesignation request for Muhlenberg County from nonattainment to

attainment for the SO2 primary NAAQS. The redesignation

request for attainment of the primary standard was approved based on

the fact that the Kentucky Utilities' Green River Plant had already

achieved final compliance with its modeled SO2 emission

limit of 3.5 lbs/MMBTU in 1980 and that the TVA Paradise Plant had

achieved compliance with its modeled SO2 emission limit of

5.2 lbs/MMBTU. Both of these emission limitations were determined by

modeling to be adequate

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to attain and protect the primary SO2 NAAQS. Additionally,

in the same June 24, 1983, Federal Register indicated that a modeled

SO2 emission limitation of 3.1 lbs/MMBTU was required for

TVA Paradise Plant in order for the area to achieve and maintain the

SO2 secondary NAAQS. The TVA Paradise Steam Plant has and

continues to comply with the more stringent SO2 emission

limitation which is the basis for the request for secondary

redesignation. The Commonwealth of Kentucky has met all of the Clean

Air Act Amendments of 1990 (CAA) requirements for redesignation

pursuant to Section 107(d)(3)(E).

Section 107(d)(3)(E)(I) The Administrator Has Determined That the

Area Has Attained the NAAQS

The Cabinet submitted air quality data showing that Muhlenberg

County has attained the SO2 secondary NAAQS since 1982.

During that period there were no exceedances, and hence, no violations

of the SO2 NAAQS.

Section 107(d)(3)(E)(ii) The Administrator Has Fully Approved the

Applicable Implementation Plan for the Area Under Section 110(k)

The Kentucky SIP is fully approved and meets all requirements under

section 110(k) which are applicable to Muhlenberg County. In a Federal

Register published on June 24, 1983, (see 48 FR 28988) it is stated

that an emission limit of 3.1 lbs/MMBTU for the TVA Paradise Plant is

required in order for Muhlenberg County to attain the SO2

secondary NAAQS. The TVA Paradise Plant was required to meet an

emission limitation of 5.2 lbs/MMBTU until December 1, 1983, at which

time the plant must meet the 3.1 lbs/MMBTU limit. The 3.1 lbs/MMBTU

limit is presently part of Kentucky's approved SIP and is currently

enforceable by EPA (see 45 FR 72153).

Section 107(d)(3)(E)(iii) The Administrator Determines That the

Improvement in Air Quality Is Due to Permanent and Enforceable

Reductions in Emissions Resulting From Implementation of the

Applicable Implementation Plan and Applicable Federal Air Pollutant

Control Regulations and Other Permanent and Enforceable Reductions

The TVA Paradise Plant and the Kentucky Utilities' Green River

Plant are the only two significant sources of SO2 in

Muhlenberg County. New emission standards were established for the

Green River and TVA Paradise plants. The Green River Plant achieved

compliance with its new 3.5 lbs/MMBTU emission limit for SO2

in 1980 and the TVA Paradise Plant achieved compliance with its new 3.1

lbs/MMBTU for SO2 in 1983 (see 48 FR 28988).

Section 107(d)(3)(E)(iv) The Administrator Has Fully Approved a

Maintenance Plan for the Area as Meeting the Requirements of

Section 175A

Muhlenberg County is currently classified as secondary

nonattainment for the SO2 NAAQS and maintenance plans are

not required for secondary nonattainment areas. Thus, Kentucky did not

submit a maintenance plan.

Section 107(d)(3)(E)(v) The State Containing Such Area Has Mmet

All Requirements Applicable to the Area Under Section 110 and Part

D

Kentucky has complied with all requirements of section 110 of the

CAA part D. Additionally, a Prevention of Significant Deterioration

(PSD) program exists in Kentucky and applies to Muhlenberg County. By

administering the requirements of PSD in Muhlenberg County, any new or

modified source must address the potential impacts of SO2

emissions in that area. This would include modeling to assess the

potential ambient impact in the vicinity of the TVA Paradise Steam

Plant. These requirements will protect the SO2 NAAQS in the

Muhlenberg County area. Therefore, Kentucky has complied with all

requirements of section 110 and part D of the CAA and has satisfied all

requirements of section 107(d)(3)(E).

Final Action

In this action, EPA is approving the request to redesignate

Muhlenberg County, Kentucky, to attainment for the secondary

SO2 NAAQS.

The SO2 SIP is designed to satisfy the requirements of

part D of the CAA and to provide for attainment and maintenance of the

SO2 NAAQS. This final redesignation should not be

interpreted as authorizing the State to delete, alter, or rescind any

of the SO2 emission limitations and restrictions contained

in the approved SO2 SIP. Changes to SO2 SIP

regulations rendering them less stringent than those contained in the

EPA approved plan cannot be made unless a revised plan for attainment

and maintenance is submitted to and approved by EPA. Unauthorized

relaxations, deletions, and changes could result in both a finding of

non-implementation (section 173(b) of the CAA) and in a SIP deficiency

call made pursuant to section 110(a)(2)(H) of the CAA.

The EPA is publishing this action without prior proposal because

the Agency views this as a noncontroversial amendment and anticipates

no adverse comments. However, in a separate document published

elsewhere in this Federal Register publication, the EPA is proposing to

approve the SIP revision should adverse or critical comments be filed.

This action will be effective October 19, 1998 unless, by September 17,

1998, adverse or critical comments are received, or the areas fail to

continue in attainment status until the final notice approving such

redesignation is effective.

If the EPA receives such comments or the areas fail to continue in

attainment status until the final document approving such redesignation

is effective, this action will be withdrawn before the effective date

by publishing a subsequent document that will withdraw the final

action. All public comments received will be addressed in a subsequent

final rule based on the companion proposed rule.

The EPA will not institute a second comment period on this action.

Any parties interested in commenting on this action should do so at

this time. If no such comments are received, the public is advised that

this action will be effective October 19, 1998.

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, section 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

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 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.

Redesignation of an area to attainment under section 107(d)(3)(E)

of the CAA does not impose any new requirements on small entities.

Redesignation is an action that affects the status of a geographical

area and does not impose any regulatory requirements on sources. The

Regional Administrator certifies that the approval of the redesignation

request will not affect 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

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. Disclaimer Language Approving SIP Revisions in Audit Law States

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.

F. 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).

G. 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 October 19, 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 81

Environmental protection, Air pollution control, National parks,

Wilderness areas.

Dated: August 3, 1998.

A. Stanley Meiburg,

Acting Regional Administrator, Region 4.

40 CFR part 81 is amended as follows:

PART 81--[AMENDED]

1. The authority citation for part 81 continues to read as follows:

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

Subpart C--Section 107 Attainment Status Designations

2. In section 81.318, the ``Kentucky-SO2'' table is

amended by revising the entries for ``Muhlenberg County'' to read

``Better than national standards.''

Sec. 81.318 Kentucky

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Kentucky-SO2

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Does not Does not

meet meet Cannot be Better than

Designated area primary secondary classified national

standards standards standards

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Muhlenberg County.......................................... ........... ........... ........... X

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[FR Doc. 98-22054 Filed 8-17-98; 8:45 am]

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