[Federal Register Volume 63, Number 142 (Friday, July 24, 1998)]
[Rules and Regulations]
[Pages 39741-39743]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-19836]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[KY-93-9821a; FRL-6125-8]
Approval and Promulgation of Implementation Plans; Commonwealth
of Kentucky
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is approving a revision to the Commonwealth of Kentucky's
State Implementation Plan (SIP) for the Prevention of Significant
Deterioration (PSD) of air quality. The revision was submitted to EPA
on March 21, 1997, by the Commonwealth of Kentucky through the Kentucky
Natural Resources and Environmental Protection Cabinet. The PSD rule is
revised to incorporate the Federal PSD rule revisions. The changes to
the rules incorporate revisions to the ``Guidelines on Air Quality
Models'' document and revise the allowable increase of particulate
matter from increments for suspended particulate (TSP) to increments
for particulate matter with an aerodynamic diameter of less than or
equal to a nominal 10 micrometers (PM10). The revision also includes
the Federal exclusion for pollution control projects undertaken at
electric utility units.
DATES: This final rule is effective September 22, 1998 unless adverse
or critical comments are received by August 24, 1998. If adverse
comment is received, EPA will publish a timely withdrawal of the direct
final rule in the Federal Register and inform the public that the rule
will not take effect.
ADDRESSES: Written comments on this action should be addressed to Karla
L.
[[Page 39742]]
McCorkle 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 KY-93-9821. 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.
Commonwealth of Kentucky, Natural Resources and Environmental
Protection Cabinet, 803 Schenkel Lane, Frankfort, Kentucky 40601.
FOR FURTHER INFORMATION CONTACT: Karla L. McCorkle at 404/562-9043.
SUPPLEMENTARY INFORMATION: On March 21, 1997, the Commonwealth of
Kentucky through the Kentucky Natural Resources and Environmental
Protection Cabinet submitted a revision to the Prevention of
Significant Deterioration (PSD) rule of the Kentucky SIP. The SIP
revision proposes to incorporate the Federal PSD rule revisions. The
changes to the Federal rule include a revision to the ``Guideline on
Air Quality Models'' document in the PSD rules, as publicized in the
Federal Register July 20, 1993 and August 9, 1995, revision to the PSD
allowable increases to PM10 increments, as publicized in the Federal
Register June 3, 1993, and the exclusion for pollution control projects
undertaken at electric utility units as publicized in the Federal
Register July 21, 1992. The specific rule revisions from the March 21,
1997, submittal that are being approved in this action are discussed
below.
Rule 401 KAR 51:017 Sections 1-20--Throughout these sections, the
term ``administrative'' was added before the word ``regulation'' for
clarity.
Rule 401 KAR 51:017 Section 1--Definitions consistent with Federal
definitions are added for ``clean coal technology,'' ``clean coal
technology demonstration project,'' ``electric utility steam generating
unit,'' ``pollution control project,'' ``reactivation of a very clean
coal-fired electric utility steam generating unit,'' ``repowering,''
``representative actual annual emissions,'' and ``temporary clean coal
technology demonstration project.'' The following definitions have been
amended to be consistent with the Federal rules: ``actual emissions,''
``complete,'' ``major modification,'' and ``minor source baseline
date.''
Rule 401 KAR 51:017 Sections 6,8,21,--Various sentence and word
structure changes were made to add clarity.
Rule 401 KAR 51:017 Section 6(3)--This subsection was deleted
because it is obsolete.
Rule 401 KAR 51:017 Sections 1,2,8,9,11,12,18,21--In these
sections, references are amended and added for clarity.
Rule 401 KAR 51:017 Sections 22,23,24,25--These sections are
updated to reflect changes in PSD increments from TSP to PM10.
Rule 401 KAR 51:017 Section 8(10)--This subsection is added to
provide an exemption to the requirements of Section 10(2) for major
stationary sources of PM10 that are constructing or modifying if a
completed permit application was received before the effective date of
the maximum allowable increases for PM10. The exemption allows the
current maximum allowable increases for TSP as an alternative to that
for PM10.
Rule 401 KAR 51:017 Section 8(11)--This subsection is added to
provide an exemption to the requirements of Section 10(2). This utility
exemption of the maximum allowable increases for nitrogen oxides
applies to the construction or modification of a stationary source if a
completed permit application was received before the effective date.
Rule 401 KAR 51:017 Section 11(1)--This section is updated to adopt
by reference the new EPA ``Guideline on Air Quality Models.''
Final Action
EPA is approving the aforementioned changes to the SIP. The Agency
has reviewed this request for revision of the Federally approved SIP
for conformance with the provisions of the CAA amendments enacted on
November 15, 1990. The Agency has determined that this action conforms
with those requirements.
EPA is publishing this rule without prior proposal because the
Agency views this as a noncontroversial amendment and anticipates no
adverse comments. However, in the proposed rules section of this
Federal Register publication, EPA is publishing a separate document
that will serve as the proposal to approve the SIP revision should
relevant adverse comments be filed. This rule will be effective
September 22, 1998 without further notice unless the Agency receives
relevant adverse comments by August 24, 1998.
If the EPA receives such comments, then EPA will publish a document
withdrawing the final rule and informing the public that the rule will
not take effect. All public comments received will then be addressed in
a subsequent final rule based on the proposed rule. The EPA will not
institute a second comment period on the proposed 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 September 22, 1998 and no further action will be taken
on the proposed rule.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any state implementation plan. Each request for revision to
the state implementation plan shall be considered separately in light
of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
Nothing in this action should be construed as making any
determination or expressing any position regarding Kentucky's audit
privilege and penalty immunity law KRS 224.01-040 or its impact upon
any approved provision in the SIP, including the revision at issue
here. The action taken herein does not express or imply any viewpoint
on the question of whether there are legal deficiencies in this or any
other Clean Air Act program resulting from the effect of Kentucky's
audit privilege and immunity law. A state audit privilege and immunity
law can affect only state enforcement and cannot have any impact on
federal enforcement authorities. EPA may at any time invoke its
authority under the Clean Air Act, including, for example, sections
113, 167, 205, 211 or 213, to enforce the requirements or prohibitions
of the state plan, independently of any state enforcement effort. In
addition, citizen enforcement under section 304 of the Clean Air Act is
likewise unaffected by a state audit privilege or immunity law.
Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from review under Executive
[[Page 39743]]
Order 12866, entitled Regulatory Planning and Review.
B. Executive Order 13045
This 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.
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 impose any new requirements, I certify
that it does not have a significant impact on any small entities
affected. Moreover, due to the nature of the Federal-State relationship
under the CAA, preparation of a 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) and 7410(k)(3).
C. 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.
D. Submission to Congress and the General Accounting Office
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).
E. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by September 22, 1998. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Incorporation by reference, Intergovernmental relations, Ozone,
Reporting and recordkeeping requirements.
Dated: June 19, 1998.
A. Stanley Meiburg,
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)(87) to read
as follows:
Sec. 52.920 Identification of plan.
* * * * *
(c) * * *
(87) Revisions to the Kentucky State Implementation Plan submitted
by the Natural Resources and Environmental Protection Cabinet on March
21, 1997. The regulation being revised is 401 KAR 51:017 Prevention of
significant deterioration of air quality.
(i) Incorporation by reference. Division of Air Quality regulations
401 KAR 51:017 Prevention of significant deterioration of air quality
effective March 12, 1997.
(ii) Other material. None.
[FR Doc. 98-19836 Filed 7-23-98; 8:45 am]
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