Approval and Promulgation of Implementation Plans; Kentucky; Approval of Revisions to Basic Motor Vehicle Inspection and Maintenance Program

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[KY98-9808a; FRL-6199-1]

Approval and Promulgation of Implementation Plans; Kentucky;

Approval of Revisions to Basic Motor Vehicle Inspection and Maintenance

Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision

submitted on November 10, 1997, by the Commonwealth of Kentucky,

through the Kentucky Natural Resources and Environmental Protection

Cabinet. This revision modifies the implementation of a basic motor

vehicle inspection and maintenance (I/M) program in Jefferson County,

Kentucky, to require loaded mode testing of vehicles instead of the

current idle testing.

DATES: This final rule is effective March 8, 1999 without further

notice unless EPA receives relevant adverse comments by February 4,

1999. Should the EPA receive such comments, it will publish a timely

document withdrawing this rule informing the public that the rule will

not take effect.

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

Aspy 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 KY98-9808. 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. Dale Aspy, (404) 562-9041.

Kentucky Natural Resources and Environmental Protection Cabinet,

Division for Air Quality, 803 Schenkel Lane, Frankfort, Kentucky 40601-

1403, (505) 573-3382.

Jefferson County Air Pollution Control District, 850 Barret Avenue,

Louisville, Kentucky, (502) 574-6000.

FOR FURTHER INFORMATION CONTACT: Dale Aspy at 404/562-9041.

SUPPLEMENTARY INFORMATION:

I. Background

The Clean Air Act as amended in 1990 (the Act) requires that many

ozone nonattainment areas adopt either ``basic'' or ``enhanced'' I/M

programs, depending on the severity of the problem and the population

of the area. The moderate ozone nonattainment areas, as well as

marginal ozone areas with existing or previously required I/M programs,

must adopt programs that meet the ``basic'' I/M requirements. Enhanced

programs are required in

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serious, severe, and extreme ozone nonattainment areas with 1980

urbanized populations of 200,000 or more. On November 5, 1992, EPA

promulgated an I/M regulation that establishes minimum performance

standards for basic I/M programs as well as other requirements that

must be met for the program to be approved in the SIP. 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 Clean Air Act.

The Commonwealth of Kentucky contains the Louisville urbanized area

portion of the Louisville ozone nonattainment area which is classified

as moderate. The Louisville ozone nonattainment area includes Jefferson

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

and two counties in Indiana. This notice addresses only the Jefferson

County, Kentucky, portion of the nonattainment area.

The I/M program currently in operation in Jefferson County,

Kentucky, requires idle testing of a vehicle's emissions and was found

to meet all EPA requirements for a basic I/M program. EPA published a

notice in the July 28, 1995, Federal Register approving the program as

meeting all EPA requirements for basic I/M programs. However, the Act

also required ozone nonattainment areas such as Louisville to meet

several other conditions, including: (1) a 15 percent volatile organic

compound (VOC) emission reduction plan; (2) reasonably available

control technologies, and (3) an attainment demonstration including any

necessary additional reductions sufficient to attain the ozone

standard. The Jefferson County, Kentucky, Air Pollution Control

District (APCD) determined that reductions beyond those achievable with

the basic idle test were needed to meet those additional requirements.

They determined that a loaded mode I/M test, in which the vehicle's

emissions are measured while the vehicle is on a dynamometer simulating

actual driving conditions, would be the most effective emission

reduction strategy to meet those additional requirements. The Jefferson

County, Kentucky, APCD also determined that an additional emission

reduction of 910 tons per year or 2.49 tons per summer day would be

achieved through the implementation of loaded mode testing.

On November 10, 1997, the Commonwealth of Kentucky, through the

Kentucky Natural Resources and Environmental Protection Cabinet

submitted to EPA a revised SIP for an I/M program that would achieve

greater emission reductions than the current basic I/M program for

Jefferson County. This submittal included revisions to Regulation 8.01,

Mobile Source Emissions Control and Regulation 8.02, Vehicle Emissions

Testing Procedure. The majority of the changes to these two regulations

were minor modifications in the language and numbering of the

regulation. The significant revision involved the type of vehicle

emission testing required in Jefferson County. Beginning April 1, 1998,

all vehicles presented for an emission test in Jefferson County,

Kentucky, that are capable of being tested on a dynamometer will be

subject to a loaded mode exhaust gas emission test. The loaded mode

test adopted and described in Regulation 8.02 is one of the short test

procedures contained in EPA's I/M rule, as published on November 5,

1992. The loaded mode procedure is described in Subpart S, Appendix B,

Section III of the EPA rule. The I/M regulations were adopted by the

Department of Planning and Environmental Management, Air Pollution

Control District of Jefferson County, Kentucky, on October 15, 1997.

II. EPA's Analysis of Changes to the Louisville, Kentucky, Basic I/

M Program

EPA's review of the submitted revisions indicates that the

Jefferson County I/M program is in accordance with the requirements of

the Act. Modeling analyses were conducted by the Jefferson County APCD

using MOBILE5a-H, and demonstrated that additional emission reductions

beyond those of a basic idle test would be achieved by implementing a

loaded mode exhaust emission test. Since the revised test procedure

adopted by the APCD is one of the short test procedures described in

Subpart S, Appendix B, Section III of the November 5, 1992 EPA I/M

rule, EPA is approving the Kentucky SIP revision for a loaded mode,

basic I/M program in Jefferson County.

III. Final Action

EPA is approving this revision to the Kentucky SIP for a basic I/M

program in Jefferson County. EPA is publishing this action without

prior proposal because the Agency views this as a noncontroversial

amendment and anticipates no adverse public 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 March 8, 1999 without further notice unless

the Agency receives relevant adverse comments by February 4, 1999.

If EPA receives such comments, then EPA will publish a timely

document withdrawing the final rule and informing the public that the

rule will not take effect. All public comments received will be

discussed in a subsequent final rule based on the proposed rule. The

EPA will not institute a second comment period on this 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 March 8, 1999 and no further action will be

taken on the proposed rule.

IV. Administrative Requirements

A. Executive Order 12866

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

regulatory action from Executive Order (E.O.) 12866, entitled

``Regulatory Planning and Review.''

B. Executive Order 12875

Under E.O. 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. If the mandate is unfunded, EPA must 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 written

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, E.O. 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 E.O. 12875

do not apply to this rule.

C. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997),

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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.

D. Executive Order 13084

Under E.O. 13084, EPA may not issue a regulation that is not

required by statute, that significantly affects 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. If the mandate is unfunded,

EPA must 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 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. This action does not involve

or impose any requirements that affect Indian Tribes. Accordingly, the

requirements of section 3(b) of E.O. 13084 do not apply to this rule.

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 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. 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

annual 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 annual 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.

G. 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).

H. 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 March 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, Carbon monoxide,

Hydrocarbons, Incorporation by reference, Intergovernmental relations,

Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.

Dated: November 5, 1998.

A. Stanely 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)(88) to read

as follows:

Sec. 52.920 Identification of plan.

* * * * *

(c) * * *

(88) Modifications to the existing basic I/M program in Jefferson

County to implement loaded mode testing of vehicles submitted by the

Commonwealth of Kentucky on November 10, 1997.

(i) Incorporation by reference.

Regulation 8.01 and 8.02, adopted on October 15, 1997.

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(ii) Other material. None.

* * * * *

[FR Doc. 99-17 Filed 1-4-99; 8:45 am]

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