[Federal Register Volume 63, Number 235 (Tuesday, December 8, 1998)]
[Rules and Regulations]
[Pages 67586-67591]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-32423]
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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.
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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
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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
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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
