Approval and Promulgation of Implementation Plans; Commonwealth of Kentucky

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[KY-102-106-9903a; FRL-6192-1]

Approval and Promulgation of Implementation Plans; Commonwealth

of Kentucky

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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

SUMMARY: The Commonwealth of Kentucky, through the Kentucky Natural

Resources and Environmental Protection Cabinet (KNREPC), submitted to

EPA on February 3, 1998, revisions to the Kentucky State Implementation

Plan (SIP) adding Stage II controls at certain gasoline dispensing

facilities. Subsequently, on September 11, 1998, the Commonwealth

submitted the 15 Percent Volatile Organic Compound (VOC) Reduction Plan

(15 Percent Plan) and the Vehicle Inspection and Maintenance (I/M)

program.

EPA is approving the Kentucky 15 Percent Plan, the I/M program and

the 1990 baseline emissions inventory. The adoption of a 15 Percent

Plan, an I/M program, and a baseline emissions inventory are required

by the 1990 Clean Air Act Amendments for the Northern Kentucky Counties

of Boone, Campbell, and Kenton which are a part of the Cincinnati-

Hamilton moderate nonattainment area for the one-hour ozone National

Ambient Air Quality Standard (NAAQS). In addition, in this document,

EPA is approving the revisions to the Kentucky SIP for the

implementation of the rule regarding Stage II control at gasoline

dispensing facilities and revisions to the existing open burning rule

which provide a portion of the VOC emission reductions included in the

15 Percent Plan.

DATES: This direct final rule is effective on February 8, 1999 without

further notice, unless EPA receives adverse comments by January 7,

1999. 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.

[[Page 67587]]

ADDRESSES: All comments should be addressed to Randy Terry at the

Environmental Protection Agency, Region 4, Air Pesticides and Toxics

Management Division, 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-102-106-9903.

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 Pesticides & Toxics

Management Division, 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: Randy Terry at 404/562-9032, or Karla

McCorkle at 404/562-9043. For additional information concerning the

Inspection/Maintenance Program contact Dale Aspy at 404/562-9041.

SUPPLEMENTARY INFORMATION: On November 15, 1990, the President signed

into law the Clean Air Act Amendments of 1990. The Clean Air Act as

amended in 1990 (CAA) includes new requirements for the improvement of

air quality in nonattainment areas for the ozone NAAQS. Under section

181(a) of the CAA, nonattainment areas were categorized by the severity

of the area's ozone problem, and progressively more stringent control

measures were required for each category of higher ozone

concentrations. The EPA, in response to requirements of the CAA,

designated the Cincinnati area as a moderate interstate ozone

nonattainment area. This designation includes the Northern Kentucky

Counties of Boone, Campbell, and Kenton and the Ohio Counties of

Hamilton, Warren, Butler, and Clermont. The basis for classifying an

area in a specific category was the ambient air quality data obtained

in the three year period 1987-1989. The CAA requires states to submit

revisions to the SIP that include a plan for reducing emissions of VOCs

by 15 percent from the 1990 Adjusted Base Year Emissions Inventory. The

15 Percent Plan was required by the CAA to be effective for the 1996

ozone season (April 1 through October 30). The CAA delineates in

section 182 the SIP requirements for ozone nonattainment areas based on

their classifications.

Kentucky submitted a plan in November 1993, to achieve the 15

percent emission reduction and subsequently revised and resubmitted the

plan in March 1994. By the end of the 1994 ozone season, air quality

monitoring data for the entire Cincinnati area showed attainment of the

NAAQS for ozone and both Ohio and Kentucky requested redesignation of

the respective portions of the area to attainment. On February 22,

1995, EPA Region 4 responded to an inquiry from Kentucky, and stated

that if an area had reached attainment without the implementation of

the emission reduction programs outlined in the proposed 15 percent

emission reduction program, then those programs need not be implemented

unless necessary to offset growth of emissions in future years. On June

29, 1995, in a letter signed by the Secretary of the KNREPC, the

Commonwealth requested that EPA take no further action on Kentucky's

proposed 15 Percent Plan for Northern Kentucky. A subsequent violation

of the NAAQS for ozone in 1995 in the nonattainment area prompted the

EPA to deny Kentucky's request to redesignate the area to attainment,

thereby making the 15 Percent Plan again an applicable requirement for

the area. On September 11, 1998, the KNREPC submitted a revision to the

Kentucky SIP for reducing the emissions of VOCs by 15 percent in the

Northern Kentucky portion of the Cincinnati-Hamilton area.

The CAA also included limitations on the credibility of certain

types of reductions. Specifically, a state cannot take credit for

reductions achieved by Federal Motor Vehicle Control Program (FMVCP)

measures promulgated prior to 1990, or for reductions resulting from

requirements to lower the Reid Vapor Pressure (RVP) of gasoline

promulgated prior to 1990 or required under section 211(h) of the CAA.

Furthermore, the CAA does not allow credit for corrections to motor

vehicle I/M Programs or Reasonably Available Control Technology (RACT)

rules as these programs were required prior to 1990.

1990 Baseline Emissions Inventory

In this action, the EPA is approving the 1990 baseline emissions

inventory for the Northern Kentucky portion of the Cincinnati-Hamilton

ozone nonattainment area. This inventory satisfies the requirements of

section 182(a)(1) of the CAA. Detailed information on the emissions

calculations can be obtained at the Regional Office address above. The

following table is a summary of the baseline emissions inventory.

Cincinnati 1990 Baseline Emissions Inventory

(Tons/day)

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

1990 Percent

emissions of total

Source category (tons VOC

per day) emissions

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

Point Sources..................................... 3.90 5.57

Area Sources...................................... 13.20 18.86

Mobile Sources.................................... 17.54 25.06

Non-Highway Mobile sources........................ 8.60 12.29

Biogenic Emissions................................ 26.75 38.22

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

Total......................................... 69.99 100.0

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

The adjusted base year inventory requires exclusion of emission

reductions that would occur by 1996 as a result of the FMVCP and the

RVP promulgated prior to 1990. The following table is a summary of the

adjusted base year inventory.

Cincinnati 1990 Adjusted Baseline Inventory

(Tons/day)

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

1990 base 1990

year adjusted

Source category emissions emissions

(TPD) (TPD)

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

Point Sources..................................... 3.90 3.9

Area Sources...................................... 13.20 12.6

Mobile Sources.................................... 17.54 13.9

Non-Highway Mobile sources........................ 8.60 8.6

Total......................................... 43.24 39.0

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

1990 Rate-of-Progress Inventory

The Rate-of-Progress Inventory is comprised of the anthropogenic

stationary (point and area) and mobile sources in the nonattainment

area with all biogenic emissions removed from the baseline inventory.

The following table is a summary of the Rate-of-Progress baseline

inventory.

[[Page 67588]]

Cincinnati 1990 Rate-of-Progress Baseline

(Tons/day)

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

1990 Percent

emissions of total

Source category (tons VOC

per day) emissions

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

Point Sources..................................... 3.90 9.0

Area Sources...................................... 13.20 30.5

Mobile Sources.................................... 17.54 40.6

Non-Highway Mobile sources........................ 8.60 19.8

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

Total......................................... 43.24 100.0

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

15 Percent Plan

The Commonwealth of Kentucky submitted a 15 Percent Plan for the

Northern Kentucky portion of the nonattainment area on September 11,

1998. This submittal is required in section 182(b)(2) in order to

demonstrate reasonable further progress toward attainment of the NAAQS

for ozone. The CAA required moderate ozone nonattainment areas to

submit a plan by November 15, 1993, and to attain the ozone NAAQS by

1999. In order to demonstrate progress, the area must achieve actual

VOC emission reductions of at least 15 percent from the baseline and

account for growth during the first six years after enactment of the

CAA. The 15 percent reduction must be based on a decrease from the 1990

baseline emissions, excluding emissions from other reductions programs

and emission sources outside the nonattainment area.

Creditable 15% Reduction

The adjusted base year inventory of 39.0 tons/day is multiplied by

0.15 to calculate the creditable 15 percent reduction in tons/day.

Kentucky needs a reduction of 5.85 tons/day to obtain the creditable 15

percent reduction.

Total Expected Reductions by 1999

The total expected reductions by 1999 include the required 15

percent (5.85 tons/day), the reductions from FMCVP and RVP (3.65 tons/

day), and the reductions from the I/M program (0.55 tons/day). Kentucky

expects to have a total of 10.05 tons/day of reductions by 1999.

Target Level Emissions for 1999

To calculate the 1999 target emissions level, the total expected

reductions (10.05 tons/day) are subtracted from the 1990 Rate-of-

Progress baseline inventory (43.24 tons/day) for the Cincinnati

nonattainment area. The resulting 1999 target level emissions are 33.19

tons/day.

Reductions Needed by 1999 to Achieve 15 Percent Emission Reduction

Accounting for Growth

The reductions needed to achieve 15 percent net growth are

determined by subtracting the target level emissions (33.19 tons/day)

from the 1999 estimated emissions (41.53 tons/day) giving a total of

8.34 tons/day in additional reductions needed.

Reductions Required by 1999

In order to meet the target level required for 1999, Kentucky must

reduce VOC emissions by an additional 8.34 tons/day. The 1990 Rate-of-

Progress Baseline Inventory is the base inventory from which the 15

percent reduction on existing sources and the reduction from growth by

1999 must be calculated to meet requirements of the CAA.

The following is a summary of the reductions Kentucky will obtain

to meet this requirement and the projected emissions for 1999. The

projected emissions for 1999 have been calculated by applying the

control measures discussed below to the 1999 estimated emissions. More

detailed information can be found in the Technical Support Document

(TSD) located at the Regional EPA address listed above.

Anticipated Emissions After Plan Implementation

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

1999 Anticipated

Source category projected emissions Tons

emissions after plan reduced

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

Point Sources.................... 3.28 3.09 0.19

Area Sources..................... 13.62 11.13 2.49

Mobile Sources................... 15.25 9.94 5.31

Non-Highway Mobile Sources....... 9.38 9.17 0.21

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

Total........................ 41.53 33.33 8.20

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

The 1999 Target Level Emissions are 33.19 tons/day. The 1999

Projected Emissions after plan implementation are 33.33 tons/day, which

provides a 15 percent emission reduction.

Control Strategies

Point Source Control Measures

Point Source Rule Effectiveness Improvements

Kentucky documented that creditable reductions of VOC emissions

have occurred since 1990 due to facilities that improved technology and

ceased operation. Additionally, the Cabinet implemented a program to

increase the rule effectiveness of emission controls at facilities

within this region from the default 80 to 95 percent. This program

increased frequency of inspections at point source facilities to

improve the existing emission controls. The increased inspections are

expected to account for a 0.19 tons/day reduction from point sources.

The projected inventory for 1999 shows emissions of 3.28 tons/day.

Documentation of these projected emission reductions are included in

the Technical Support Document (TSD).

Area Source Control Measures

Stage I Vapor Control--Increased Rule Effectiveness

Kentucky implemented a program to increase the rule effectiveness

of the Stage I gasoline vapor control program. This program increased

the frequency of inspections at gasoline facilities to guarantee that

State I vapor controls work properly. The program is projected to

increase the rule effectiveness of Stage I controls from the default 80

to 95 percent, and create an emissions reduction of 0.57 tons/day.

Documentation of how the projected emission reductions were calculated

is included in the TSD.

Architectural Coatings, Traffic Paints, Auto Body Refinishing, and

Commercial/Consumer Products

The EPA has determined that implemented or forthcoming federal

guidance or regulation will reduce the amount of VOC emissions from

Architectural and Industrial Maintenance Coatings, Auto Body

Refinishing, and Commercial Consumer

[[Page 67589]]

Products. Credit for these reductions can be utilized by state and

local agencies in developing plans to achieve the 15 percent VOC

emission reduction. The amount of reduction which can be assumed in the

plan is 20 percent for application of architectural coatings, 27

percent from auto body refinishing, and 20 percent from Consumer

Commercial Products. The emission reduction from these area source

programs will result in 1.59 tons/day reduction. The guidance and

equations used in these reductions calculations are included in the

TSD.

Open Burning

On February 3, 1998, the KNREPC, submitted revisions to rule 401

KAR 63:005 Open burning for adoption into the Kentucky SIP.

Section 1-2--The order of Section 1 Applicability and Section 2

Definitions was changed to Section 1 Definitions and Section 2

Applicability.

Section 1--A reference to 401 KAR 63:001 for terms not defined in

this section was added.

Section 1(3)--The definition of ``Open burning'' was amended for

clarity to include the burning of any matter without an approved burn

chamber with a stack or chimney and approved control devices as open

burning.

Section 1(4)--The definition of ``Priority I Region'' was added for

region classification according to Priority I in 401 KAR 50:020

Appendix A.

Section 2--A statement was added that applies to all open burning

that is not subject to another regulation in 401 KAR Chapters 50 and

65.

Section 3--Various word structure changes were made to add clarity.

Section 4--The revised restrictions for the three Northern Kentucky

counties exceed those that apply to the remainder of the Commonwealth,

and will be in effect from May through September on an annual basis.

Previously allowed activities which these amendments will prohibit

during the specified time period include:

Fires set for cooking of food for human consumption,

Fires set for prevention of fire hazard, including

disposal of dangerous materials if there is no safe alternative,

Fires set for instruction and training in the methods of

fire fighting,

Fires set for recognized agricultural, silvicultural,

range, and wildlife management,

Fires set to dispose of accidental spills and the disposal

of absorbent material used in their removal, and

Fires set for recreational and ceremonial purposes.

The restriction of burning activities in ozone nonattainment areas

and ozone maintenance areas during the peak ozone season will result in

a reduction of volatile organic compound emissions. The emission

reduction credit taken for these rule modifications was 0.90 tons per

day. Emissions calculations for this reduction are included in the TSD.

Mobile Sources

Inspection/Maintenance (I/M) Program

Background

The CAA requires states to make changes to improve existing I/M

programs or to implement new ones for certain nonattainment areas.

Section 182(b)(4) of the CAA requires moderate ozone nonattainment

areas to develop and implement a basic I/M program. Additionally,

section 182(a)(2)(B) of the CAA directed EPA to publish updated

guidance for state I/M programs, taking into consideration findings of

the Administrator's audits and investigations of these programs. EPA

promulgated I/M regulations on November 5, 1992 (57 FR 52950, codified

at 40 Code of Federal Regulations (CFR) 51.350-51.373).

The I/M regulation establishes minimum performance standards for I/

M programs as well as requirements for the following: network type and

program evaluation; adequate tools and resources; test frequency and

convenience; vehicle coverage; test procedures and standards; test

equipment; quality control; waivers and compliance via diagnostic

inspection; motorist compliance enforcement; motorist compliance

enforcement program oversight; quality assurance; enforcement against

contractors, stations and inspectors; data collection; data analysis

and reporting; inspector training and licensing or certification;

public information and consumer protection; improving repair

effectiveness; compliance with recall notices; on-road testing; SIP

revisions; and implementation deadlines. The performance standard for

basic I/M programs remains the same as it has been since initial I/M

policy was established in 1978, pursuant to the 1977 amendments to the

CAA.

On September 11, 1998, the Commonwealth of Kentucky submitted to

EPA a basic I/M program for incorporation into the SIP. The program

meets the requirements of EPA's rule for a basic I/M program. The basic

components of the Kentucky I/M program are listed below.

Idle test for all vehicles.

Anti-tampering/anti-misfueling checks on all 1975 and

newer vehicles.

Registration denial for vehicles that do not comply with

program requirements.

Training program for mechanics servicing vehicles in the

area.

Pressure check on 1981 and newer vehicles.

Opacity check for diesel vehicles.

The full description of the Kentucky I/M program can be found in

rule 401 KAR 65:010 of the Kentucky SIP and in Appendix K of the

Kentucky 15 percent plan submittal.

Reformulated Gasoline (RFG)

Kentucky requested to opt-in to the federal RFG program in moderate

ozone nonattainment areas within Kentucky beginning in 1995. This

program included the three northern Kentucky Counties of Boone,

Campbell, and Kenton. In addition, Kentucky has opted to remain in the

federal RFG program for this area as it goes into phase II in 2000,

which will provide additional VOC reductions.

Stage II

On February 3, 1998, Kentucky, submitted rule 401 KAR 59:174 Stage

II Controls at Gasoline Dispensing Facilities for adoption into the

Kentucky SIP.

The provisions in this regulation meet EPA requirements for

gasoline dispensing facilities that install and operate vapor recovery

systems that capture gasoline vapors displaced from motor vehicle

gasoline tanks during refueling (i.e., Stage II). The reductions due to

the installation of Stage II are needed for the required 15 percent

reduction in dispensing facilities, which are located in an area that

is designated moderate, serious, or severe nonattainment for the ozone

NAAQS, and which have an average monthly gasoline throughput of greater

than 10,000 gallons, install Stage II vapor recovery systems.

Independent small business marketers with an average monthly throughput

of 50,000 gallons or less and all other gasoline dispensing facilities

with an average monthly throughput of 10,000 gallons or less have been

exempted from this regulation. These facilities are required to

maintain current records covering a two year period which demonstrate

that the applicable throughput limits have not been exceeded.

The CAA specifies that Stage II regulations must apply to any

facility that dispenses more than 10,000 gallons of gasoline per month

or, in the case of an independent small business marketer (ISBM), any

facility that dispenses more than 50,000 gallons of gasoline per

[[Page 67590]]

month. Section 324 of the CAA defines an ISBM.

Consistent with EPA's guidance, the regulation requires that Stage

II systems be tested and certified to meet a 95 percent emission

reduction efficiency by using a system approved by the California Air

Resources Board (CARB). The regulation requires sources to verify

proper installation and function of Stage II equipment through use of a

liquid blockage test and a leak test prior to system operation and

every five years or upon major modification of a facility (i.e., 75

percent or more equipment change). Kentucky has also established

procedures for enforcing violations of the Stage II requirements.

Kentucky expects a 5.31 ton/day reduction from these mobile source

controls.

Non-Highway Mobile Sources

Kentucky is using a method developed by EPA to use RFG in non-

highway mobile sources. The method was described in an August 18, 1993

memo from Phil Lorang, Director of Emission Planning and Strategies

Division, of EPA's Office of Mobile Sources. This method provides

approximately one-half the on-highway mobile source credit for non-

highway mobile sources. Using this method, a 0.21 ton per day reduction

is calculated for non-highway mobile sources. Further emission

reductions will be realized after Phase II RFG is implemented.

EPA is approving Kentucky's 15 percent plan and the underlying

regulations (Stage II and Open Burning), the I/M Program, and the 1990

baseline emissions inventory because they are consistent with EPA

guidance and the requirements set forth in the CAA.

Final Action

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

is publishing this rule without prior proposal because the Agency views

this as a noncontroversial submittal 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 February 8, 1999

without further notice unless the Agency receives adverse comments by

January 7, 1999.

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

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. 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

February 8, 1999 and no further action will be taken on the proposed

rule.

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 12875

Under Executive Order 12875, EPA may not issue a regulation that is

not required by statute and that creates a mandate upon a State, local

or tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments, or EPA consults with those governments. If EPA complies by

consulting, Executive Order 12875 requires EPA to provide to the Office

of Management and Budget a description of the extent of EPA's prior

consultation with representatives of affected State, local and tribal

governments, the nature of their concerns, copies of any written

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, Executive Order 12875

requires EPA to develop an effective process permitting elected

officials and other representatives of State, local and tribal

governments ``to provide meaningful and timely input in the development

of regulatory proposals containing significant unfunded mandates.''

Today's rule does not create a mandate on State, local or tribal

governments. The rule does not impose any enforceable duties on these

entities. Accordingly, the requirements of section 1(a) of Executive

Order 12875 do not apply to this rule.

C. Executive Order 13084

Under Executive Order 13084, EPA may not issue a regulation that is

not required by statute, that significantly or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments, or EPA consults with those

governments. If EPA complies by consulting, Executive Order 13084

requires EPA to provide to the Office of Management and Budget, in a

separately identified section of the preamble to the rule, a

description of the extent of EPA's prior consultation with

representatives of affected tribal governments, a summary of the nature

of their concerns, and a statement supporting the need to issue the

regulation. In addition, Executive Order 13084 requires EPA to develop

an effective process permitting elected officials and other

representatives of Indian tribal governments ``to provide meaningful

and timely input in the development of regulatory policies on matters

that significantly or uniquely affect their communities.''

Today's rule does not significantly or uniquely affect the

communities of Indian tribal governments. Accordingly, the requirements

of section 3(b) of Executive Order 13084 do not apply to this rule.

D. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is

determined to be ``economically significant'' as defined under E.O.

12866, and (2) concerns an environmental health or safety risk that EPA

has reason to believe may have a disproportionate effect on children.

If the regulatory action meets both criteria, the Agency must evaluate

the environmental health or safety effects of the planned rule on

children, and explain why the planned regulation is preferable to other

potentially effective and reasonably feasible alternatives considered

by the Agency.

This rule is not subject to E.O. 13045 because it does not involve

decisions intended to mitigate environmental health or safety risks.

E. Regulatory Flexibility Act

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

[[Page 67591]]

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).

F. 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.

G. 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.

H. 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).

I. 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 February 8, 1999. 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: November 13, 1998.

Michael V. Peyton,

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)(92) to read

as follows:

Sec. 52.920 Identification of plan.

* * * * *

(c) * * *

(92) Revisions to the Kentucky State Implementation Plan submitted

by the Natural Resources and Environmental Protection Cabinet on

February 3, 1998. The regulations being revised are 401 KAR 59:174

Stage II control at gasoline dispensing facilities, 401 KAR 63:005 Open

burning, and 401 KAR 65:010 Vehicle emission control programs rules.

Adoption of the Kentucky 15 Percent Plan, the I/M program and the 1990

baseline emissions inventory.

(i) Incorporation by reference.

(A) Division of Air Quality regulations 401 KAR 59:174 Stage II

control at gasoline dispensing facilities, 401 KAR 63:005 Open burning,

and 401 KAR 65:010 Vehicle emission control programs rules are

effective January 12, 1998.

(B) Tables showing the Cincinnati 1990 Baseline Emissions

Inventory, 1990 Adjusted Baseline Inventory, and 1990 Rate of Progress

Inventory, Summary of Biogenic Emissions and Anticipated Emissions

after Plan Implementation which are effective September 11, 1998.

(ii) Other material. None.

[FR Doc. 98-32423 Filed 12-7-98; 8:45 am]

BILLING CODE 6560-50-P