[Federal Register Volume 63, Number 159 (Tuesday, August 18, 1998)]
[Rules and Regulations]
[Pages 44143-44146]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-22054]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[KY 99-1-9820a; FRL-6142-7]
Designation of Areas for Air Quality Planning Purposes--Kentucky:
Redesignation of the Muhlenberg County Sulfur Dioxide Secondary
Nonattainment Area to Attainment
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: On November 21, 1997, the Commonwealth of Kentucky submitted,
through the Natural Resources and Environmental Protection Cabinet (the
Cabinet), a request for redesignation of Muhlenberg County, Kentucky,
to attainment for the secondary sulfur dioxide (SO2)
National Ambient Air Quality Standard (NAAQS). The secondary
nonattainment designation for SO2 was based on the fact that
the Tennessee Valley Authority (TVA) Paradise Steam Plant was out of
compliance with its allowable emission limit. The Cabinet submitted air
dispersion modeling which demonstrates that the secondary (NAAQS) for
SO2 are now being maintained. The EPA is approving the
request for redesignation.
DATES: This direct final rule is effective on October 19, 1998 without
further notice, unless EPA receives adverse comment by September 17,
1998. If EPA receives adverse comment, we will publish a timely
withdrawal of the direct final rule in the Federal Register and inform
the public that the rule will not take effect.
ADDRESSES: Written comments should be addressed to: Scott M. Martin,
Regulatory Planning Section, Air Planning Branch, Air, Pesticides &
Toxics Management Division, Region 4 Environmental Protection Agency,
61 Forsyth Street, Atlanta, Georgia 30303.
Copies of the documents relative to this action are available for
public inspection during normal business hours at the following
locations. The interested persons wanting to examine these documents
should make an appointment with the appropriate office at least 24
hours before the visiting day.
Environmental Protection Agency, Region 4 Air Planning Branch, 61
Forsyth Street, Atlanta, Georgia 30303.
Mr. John E. Hornback, Director, Division of Air Quality, Department for
Environmental Protection, Natural Resources and Environmental
Protection Cabinet, 803 Schenkel Lane, Frankfort, Kentucky 40601.
FOR FURTHER INFORMATION CONTACT: Scott M. Martin, Regulatory Planning
Section, Air Planning Branch, Air, Pesticides & Toxics Management
Division, Region 4 Environmental Protection Agency, 61 Forsyth Street,
Atlanta, Georgia 30303. The telephone number is 404-562-9036.
SUPPLEMENTARY INFORMATION: In a Federal Register document published
March 3, 1978, (see 43 FR 8962) Muhlenberg County was originally
designated nonattainment for the primary and secondary SO2
NAAQS. The nonattainment designation was due to noncompliance of the
TVA Paradise Plant and the Kentucky Utilities' Green River Plant. In a
June 24, 1983, Federal Register (see 48 FR 28988) EPA approved a
redesignation request for Muhlenberg County from nonattainment to
attainment for the SO2 primary NAAQS. The redesignation
request for attainment of the primary standard was approved based on
the fact that the Kentucky Utilities' Green River Plant had already
achieved final compliance with its modeled SO2 emission
limit of 3.5 lbs/MMBTU in 1980 and that the TVA Paradise Plant had
achieved compliance with its modeled SO2 emission limit of
5.2 lbs/MMBTU. Both of these emission limitations were determined by
modeling to be adequate
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to attain and protect the primary SO2 NAAQS. Additionally,
in the same June 24, 1983, Federal Register indicated that a modeled
SO2 emission limitation of 3.1 lbs/MMBTU was required for
TVA Paradise Plant in order for the area to achieve and maintain the
SO2 secondary NAAQS. The TVA Paradise Steam Plant has and
continues to comply with the more stringent SO2 emission
limitation which is the basis for the request for secondary
redesignation. The Commonwealth of Kentucky has met all of the Clean
Air Act Amendments of 1990 (CAA) requirements for redesignation
pursuant to Section 107(d)(3)(E).
Section 107(d)(3)(E)(I) The Administrator Has Determined That the
Area Has Attained the NAAQS
The Cabinet submitted air quality data showing that Muhlenberg
County has attained the SO2 secondary NAAQS since 1982.
During that period there were no exceedances, and hence, no violations
of the SO2 NAAQS.
Section 107(d)(3)(E)(ii) The Administrator Has Fully Approved the
Applicable Implementation Plan for the Area Under Section 110(k)
The Kentucky SIP is fully approved and meets all requirements under
section 110(k) which are applicable to Muhlenberg County. In a Federal
Register published on June 24, 1983, (see 48 FR 28988) it is stated
that an emission limit of 3.1 lbs/MMBTU for the TVA Paradise Plant is
required in order for Muhlenberg County to attain the SO2
secondary NAAQS. The TVA Paradise Plant was required to meet an
emission limitation of 5.2 lbs/MMBTU until December 1, 1983, at which
time the plant must meet the 3.1 lbs/MMBTU limit. The 3.1 lbs/MMBTU
limit is presently part of Kentucky's approved SIP and is currently
enforceable by EPA (see 45 FR 72153).
Section 107(d)(3)(E)(iii) The Administrator Determines That the
Improvement in Air Quality Is Due to Permanent and Enforceable
Reductions in Emissions Resulting From Implementation of the
Applicable Implementation Plan and Applicable Federal Air Pollutant
Control Regulations and Other Permanent and Enforceable Reductions
The TVA Paradise Plant and the Kentucky Utilities' Green River
Plant are the only two significant sources of SO2 in
Muhlenberg County. New emission standards were established for the
Green River and TVA Paradise plants. The Green River Plant achieved
compliance with its new 3.5 lbs/MMBTU emission limit for SO2
in 1980 and the TVA Paradise Plant achieved compliance with its new 3.1
lbs/MMBTU for SO2 in 1983 (see 48 FR 28988).
Section 107(d)(3)(E)(iv) The Administrator Has Fully Approved a
Maintenance Plan for the Area as Meeting the Requirements of
Section 175A
Muhlenberg County is currently classified as secondary
nonattainment for the SO2 NAAQS and maintenance plans are
not required for secondary nonattainment areas. Thus, Kentucky did not
submit a maintenance plan.
Section 107(d)(3)(E)(v) The State Containing Such Area Has Mmet
All Requirements Applicable to the Area Under Section 110 and Part
D
Kentucky has complied with all requirements of section 110 of the
CAA part D. Additionally, a Prevention of Significant Deterioration
(PSD) program exists in Kentucky and applies to Muhlenberg County. By
administering the requirements of PSD in Muhlenberg County, any new or
modified source must address the potential impacts of SO2
emissions in that area. This would include modeling to assess the
potential ambient impact in the vicinity of the TVA Paradise Steam
Plant. These requirements will protect the SO2 NAAQS in the
Muhlenberg County area. Therefore, Kentucky has complied with all
requirements of section 110 and part D of the CAA and has satisfied all
requirements of section 107(d)(3)(E).
Final Action
In this action, EPA is approving the request to redesignate
Muhlenberg County, Kentucky, to attainment for the secondary
SO2 NAAQS.
The SO2 SIP is designed to satisfy the requirements of
part D of the CAA and to provide for attainment and maintenance of the
SO2 NAAQS. This final redesignation should not be
interpreted as authorizing the State to delete, alter, or rescind any
of the SO2 emission limitations and restrictions contained
in the approved SO2 SIP. Changes to SO2 SIP
regulations rendering them less stringent than those contained in the
EPA approved plan cannot be made unless a revised plan for attainment
and maintenance is submitted to and approved by EPA. Unauthorized
relaxations, deletions, and changes could result in both a finding of
non-implementation (section 173(b) of the CAA) and in a SIP deficiency
call made pursuant to section 110(a)(2)(H) of the CAA.
The EPA is publishing this action without prior proposal because
the Agency views this as a noncontroversial amendment and anticipates
no adverse comments. However, in a separate document published
elsewhere in this Federal Register publication, the EPA is proposing to
approve the SIP revision should adverse or critical comments be filed.
This action will be effective October 19, 1998 unless, by September 17,
1998, adverse or critical comments are received, or the areas fail to
continue in attainment status until the final notice approving such
redesignation is effective.
If the EPA receives such comments or the areas fail to continue in
attainment status until the final document approving such redesignation
is effective, this action will be withdrawn before the effective date
by publishing a subsequent document that will withdraw the final
action. All public comments received will be addressed in a subsequent
final rule based on the companion proposed rule.
The EPA will not institute a second comment period on this action.
Any parties interested in commenting on this action should do so at
this time. If no such comments are received, the public is advised that
this action will be effective October 19, 1998.
Nothing in this action should be construed as making any
determination or expressing any position regarding Kentucky's audit
privilege and penalty immunity law KRS 224.01-040 or its impact upon
any approved provision in the SIP, including the revision at issue
here. The action taken herein does not express or imply any viewpoint
on the question of whether there are legal deficiencies in this or any
other Clean Air Act program resulting from the effect of Kentucky's
audit privilege and immunity law. A state audit privilege and immunity
law can affect only state enforcement and cannot have any impact on
federal enforcement authorities. EPA may at any time invoke its
authority under the Clean Air Act, including, for example, section 113,
167, 205, 211 or 213, to enforce the requirements or prohibitions of
the state plan, independently of any state enforcement effort. In
addition, citizen enforcement under section 304 of the Clean Air Act is
likewise unaffected by a state audit privilege or immunity law.
Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from review under Executive
[[Page 44145]]
Order 12866, entitled Regulatory Planning and Review.
B. Executive Order 13045
The final rule is not subject to Executive Order 13045, entitled
Protection of Children from Environmental Health Risks and Safety
Risks, because it is not an ``economically significant'' action under
Executive Order 12866.
C. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
Redesignation of an area to attainment under section 107(d)(3)(E)
of the CAA does not impose any new requirements on small entities.
Redesignation is an action that affects the status of a geographical
area and does not impose any regulatory requirements on sources. The
Regional Administrator certifies that the approval of the redesignation
request will not affect a substantial number of small entities.
D. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
private sector, of $100 million or more. Under section 205, EPA must
select the most cost-effective and least burdensome alternative that
achieves the objectives of the rule and is consistent with statutory
requirements. Section 203 requires EPA to establish a plan for
informing and advising any small governments that may be significantly
or uniquely impacted by the rule.
EPA has determined that the approval action promulgated does not
include a Federal mandate that may result in estimated costs of $100
million or more to either State, local, or tribal governments in the
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
E. Disclaimer Language Approving SIP Revisions in Audit Law States
Nothing in this action should be construed as making any
determination or expressing any position regarding Kentucky's audit
privilege and penalty immunity law KRS 224.01-040, or its impact upon
any approved provision in the SIP, including the revision at issue
here. The action taken herein does not express or imply any viewpoint
on the question of whether there are legal deficiencies in this or any
other Clean Air Act program resulting from the effect of Kentucky's
audit privilege and immunity law. A state audit privilege and immunity
law can affect only state enforcement and cannot have any impact on
federal enforcement authorities. EPA may at any time invoke its
authority under the Clean Air Act, including, for example, sections
113, 167, 205, 211 or 213, to enforce the requirements or prohibitions
of the state plan, independently of any state enforcement effort. In
addition, citizen enforcement under section 304 of the Clean Air Act is
likewise unaffected by a state audit privilege or immunity law.
F. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. This rule is not a
``major rule'' as defined by 5 U.S.C. 804(2).
G. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by October 19, 1998. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 81
Environmental protection, Air pollution control, National parks,
Wilderness areas.
Dated: August 3, 1998.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
40 CFR part 81 is amended as follows:
PART 81--[AMENDED]
1. The authority citation for part 81 continues to read as follows:
Authority: 42.U.S.C. 7401-7671q.
Subpart C--Section 107 Attainment Status Designations
2. In section 81.318, the ``Kentucky-SO2'' table is
amended by revising the entries for ``Muhlenberg County'' to read
``Better than national standards.''
Sec. 81.318 Kentucky
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Kentucky-SO2
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Does not Does not
meet meet Cannot be Better than
Designated area primary secondary classified national
standards standards standards
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Muhlenberg County.......................................... ........... ........... ........... X
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[FR Doc. 98-22054 Filed 8-17-98; 8:45 am]
BILLING CODE 6560-50-P
