[Federal Register Volume 60, Number 187 (Wednesday, September 27, 1995)]
[Rules and Regulations]
[Pages 49775-49778]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-23963]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[KY-087-1-6957a; FRL-5290-5]
Approval and Promulgation of Implementation Plans; Kentucky
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is approving a revision to the Kentucky State
Implementation Plan (SIP) to incorporate new permitting regulations and
to allow the Commonwealth of Kentucky to issue Federally enforceable
state operating permits (FESOP). This revision consists of Sections 1
through 7 of the State Rules in 401 KAR 50:035, entitled ``Permits.''
On December 29, 1994, the Commonwealth of Kentucky through the Kentucky
Natural Resources and Environmental Protection Cabinet (NREPC),
submitted a SIP revision which updates the procedural rules governing
the issuance of air permits in Kentucky and fulfills the requirements
necessary for a state FESOP program to become Federally enforceable. In
order to extend the Federal enforceability of Kentucky's FESOP program
to hazardous air pollutants (HAPs), EPA is also approving Kentucky's
FESOP program pursuant to section 112 of the Clean Air Act as amended
in 1990 (CAA) so that Kentucky may issue Federally enforceable
operating permits for HAPs.
DATES: This final rule is effective November 27, 1995 unless adverse or
critical comments are received by October 27, 1995. If the effective
date is delayed, timely notice will be published in the Federal
Register.
ADDRESSES: Written comments should be addressed to Yolanda Adams, at
the EPA Regional Office listed below. 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.
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 Programs Branch, 345
Courtland Street, NE., Atlanta, Georgia 30365.
Division for Air Quality, Department for Environmental Protection,
Natural Resources and Environmental Protection Cabinet, 803 Schenkel
Lane, Frankfort, Kentucky 40601.
FOR FURTHER INFORMATION CONTACT: Yolanda Adams, Air Programs Branch,
Air, Pesticides & Toxics Management Division, Region 4 Environmental
Protection Agency, 345 Courtland Street, NE., Atlanta, Georgia 30365.
The telephone number is 404/347-3555 x4149. Reference file KY087-01-
6957.
SUPPLEMENTARY INFORMATION:
I. Summary of State Submittal
On December 29, 1994, the Commonwealth of Kentucky through the
NREPC submitted revised air permitting rules for approval as part of
the SIP. These rules represent Kentucky's consolidated permitting
regulations, which include provisions for operating permits for major
sources pursuant to title V of the CAA, construction permits for major
new sources and major source modifications pursuant to Parts C and D of
title I, and operating and construction permits for minor sources and
minor modifications pursuant to State law. Thus, this submittal
complements Kentucky's submittal seeking EPA approval of the same
regulations as satisfying title V requirements. Separate rulemaking is
being conducted with respect to whether these regulations satisfy title
V requirements.
Kentucky's December 29, 1994, submittal does not seek to satisfy
any specific mandate under the Clean Air Act. As noted above, a
separate submittal seeks to satisfy the requirements of title V.
Instead, Kentucky's submittal of December 29, 1994, seeks approval of
updated State permitting regulations which have superseded previously
approved regulations. Kentucky intended with this submittal: (1) to
provide a mechanism for intermediate size sources to obtain Federally
enforceable limitations to become ``synthetic minor sources,'' and (2)
to update the Federally approved regulations to reflect the updated
State permitting regulations. Each of these purposes requires
evaluation under different criteria. These purposes and the associated
EPA criteria for approval are discussed individually in subsequent
sections.
A. Federally Enforceable Limitations on Potential To Emit
The first purpose of Kentucky's submittal was to provide a
mechanism for intermediate size sources to obtain Federally enforceable
limitations such that the sources' potential to emit would be below the
size thresholds at which major source permits are required. This
mechanism involves FESOPs incorporating the relevant limitations.
Kentucky is requesting this authority with respect to HAPs as well as
criteria pollutants. This voluntary SIP revision allows EPA and
citizens under the CAA to enforce the terms and conditions of
Kentucky's FESOP program. Operating permits that are issued under the
Kentucky FESOP program after approval into the State SIP and under
section 112(l) will provide Federally enforceable limits on an air
pollution source's potential to emit. Limiting of a source's potential
to emit through Federally enforceable operating permits can affect the
applicability of Federal regulations such as title V operating permits,
New Source Review (NSR) preconstruction permits, Prevention of
Significant Deterioration (PSD) preconstruction permits for criteria
pollutants, and Federal air toxics requirements under section 112 of
the CAA.
Criteria for EPA approval of FESOP programs are specified in a
Federal Register document entitled,
[[Page 49776]]
``Requirements for the preparation, adoption, and submittal of
implementation plans; air quality, new source review; final rules.''
(see 54 FR 22274, June 28, 1989). In this document, EPA listed five
criteria that must be met for a State's minor source operating permit
program to be Federally enforceable and, therefore, approvable into the
SIP. Kentucky's SIP revision satisfies the five criteria for Federal
enforceability of the State's FESOP program.
The first criterion for a state's operating permit program to be
Federally enforceable is EPA's approval of the permit program into the
SIP. On December 29, 1994, the Commonwealth of Kentucky submitted
through the DEP a SIP revision designed to meet the five criteria for
Federal enforceability. Today's action will approve these regulations
into the Kentucky SIP, and therefore satisfy the first criterion for
Federal enforceability.
The second criterion for a state's operating permit program to be
Federally enforceable is that the regulations approved into the SIP
must impose a legal obligation that operating permit holders adhere to
the terms and limitations of such permits. Kentucky's program meets
this criterion in Rule 401 KAR 50:035, section 4(1)(f)1., by requiring
the permittee to comply with all conditions of the permit. The rule
further states that ``Noncompliance shall be a violation of this
administrative regulation and, for Federally enforceable permits, is
also a violation of 42 U.S.C 7401 through 7671q (the Act) and is
grounds for an enforcement action, including but not limited to the
termination, revocation and reissuance, or revision of a permit, or
denial of a permit application.'' Hence, the second criterion for
Federal enforceability is satisfied.
The third criterion for a state's operating permit program to be
Federally enforceable is that the state operating permit program must
require all emissions limitations, controls, and other requirements
imposed by permits to be at least as stringent as any other applicable
limitations and requirements contained in the SIP or enforceable under
the SIP, and the program may not issue permits that waive, or make less
stringent, any limitations or requirements contained in or issued
pursuant to the SIP, or that are otherwise ``Federally enforceable''
(e.g., standards established under sections 111 and 112 of the CAA).
Kentucky's Rule 401 KAR 50:035, section 4(1)(a) explicitly requires
that issued permits include emission limitations and standards,
including operational requirements and limitations, that assure
compliance with all applicable requirements. The rule further states
that Kentucky will not issue permits that waive, or make less
stringent, any limitation or requirements contained in or issued
pursuant to the SIP or that are otherwise Federally enforceable.
Therefore, this section of Kentucky's permits rule satisfies the third
criterion for Federal enforceability.
The fourth criterion for a state's operating permit program to be
Federally enforceable is that limitations, controls, and requirements
in the operating permits be permanent, quantifiable, and otherwise
enforceable as a practical matter. With respect to this criterion,
enforceability is essentially provided on a permit-by-permit basis,
particularly by writing practical and quantitative enforcement
procedures into each permit. EPA will review the enforceability of
permits using the policy memorandum entitled ``Options for Limiting the
Potential to Emit (PTE) of a Stationary Source Under Section 112 and
title V of the Clean Air Act (Act),'' dated January 25, 1995, which
describes the types of limitations that reduce potential to emit in a
Federally enforceable manner. Nevertheless, enforceability also
requires proper permit program design. Kentucky's regulations (e.g.,
Rule 401 KAR 50:035, section 4(1)(a) quoted above) provide for fully
enforceable limitations. Concerning permanence, permit conditions have
the duration provided for under title V (i.e., the conditions expire
with permit expiration but are typically renewed with permit
reissuance). Consequently, Kentucky's rules provide for the degree of
permanence necessary for enforcement of the applicable provisions, and
more generally provide that the permit limitations will be fully
enforceable.
The fifth criterion for a state's operating permit program to be
Federally enforceable is providing EPA and the public with timely
notice of the proposal and issuance of such permits, and providing EPA,
on a timely basis, with a copy of each proposed (or draft) and final
permit intended to be Federally enforceable. This process must also
provide for an opportunity for public comment on the permit
applications prior to issuance of the final permit. Kentucky's Rule 401
KAR 50:035, section 7 entitled ``Procedures for Public Participation''
contains explicit requirements for public notice and review of proposed
permitting actions. Subsection (1) requires that public notice of the
opportunity to comment be provided for the following permit actions:
(a) Issuance of a draft permit; (b) Intended denial of a permit
application; (c) Issuance of a draft significant permit revision; (d)
Issuance of a draft general permit; (e) Issuance of a permit renewal;
and (f) Scheduling of a public hearing. Subsection (6) states that a
minimum of 30 days will be provided for public comment on all permit
proceedings. In addition, subsection (7) provides the opportunity for a
public hearing on any permit action where the DEP believes there is
sufficient interest. EPA notes that any permit which has not gone
through an opportunity for public comment and EPA review under the
Kentucky FESOP program will not be Federally enforceable.
In addition to requesting approval into the SIP, Kentucky has also
requested approval of its FESOP program under section 112(l) of the Act
for the purpose of creating Federally enforceable limitations on the
potential to emit of HAPs through the issuance of Federally enforceable
state operating permits. Approval under section 112(l) is necessary
because the proposed SIP approval discussed above only extends to the
control of criteria pollutants.
EPA believes that the five criteria for Federal enforceability, are
also appropriate for evaluating and approving FESOP programs under
section 112(l). The June 28, 1989, Federal Register document did not
specifically address HAPs because it was written prior to the 1990
amendments to section 112, not because it establishes requirements
unique to criteria pollutants.
In addition to meeting the criteria in the June 28, 1989, document,
a FESOP program that addresses HAPs must meet the statutory criteria
for approval under section 112(l)(5). Section 112(l) allows EPA to
approve a program only if it: (1) contains adequate authority to assure
compliance with any section 112 standards or requirements; (2) provides
for adequate resources; (3) provides for an expeditious schedule for
assuring compliance with section 112 requirements; and (4) is otherwise
likely to satisfy the objectives of the CAA. The January 25, 1995,
memorandum cited above, provides further discussion of these criteria
and of the extent to which limits on criteria pollutants such as
volatile organic compounds and particulate matter may be considered to
limit sources' potential to emit HAPs.
EPA plans to codify the approval criteria for programs limiting the
potential to emit HAPs, such as FESOP programs, through amendments to
Subpart E of Part 63, the regulations promulgated to implement section
[[Page 49777]]
112(l) of the CAA. (See 58 FR 62262, November 26, 1993). EPA
anticipates that these regulatory criteria, as they apply to FESOP
programs, will mirror those set forth in the June 28, 1989, Federal
Register document. The EPA also anticipates that since FESOP programs
approved pursuant to section 112(l) prior to the planned Subpart E
revisions will have been approved as meeting these criteria, further
approval actions for those programs will not be necessary.
EPA has authority under section 112(l) to approve programs to limit
the potential to emit HAPs directly under section 112(l) prior to the
Subpart E revisions. Section 112(l)(5) requires the EPA to disapprove
programs that are inconsistent with guidance required to be issued
under section 112(l)(2). This might be read to suggest that the
``guidance'' referred to in section 112(l)(2) was intended to be a
binding rule. Even under this interpretation, EPA does not believe that
section 112(l) requires this rulemaking to be comprehensive. That is to
say, it need not address every possible instance of approval under
section 112(l). EPA has already issued regulations under section 112(l)
that would satisfy any section 112(l)(2) requirement for rulemaking.
Given the severe timing problems posed by impending deadlines set forth
in ``maximum achievable control technology'' (MACT) emission standards
under section 112 and for submittal of title V permit applications, EPA
believes it is reasonable to read section 112(l) to allow for approval
of programs to limit potential to emit prior to promulgation of a rule
specifically addressing this issue. Therefore, EPA is approving
Kentucky's FESOP program so that Kentucky may begin to issue Federally
enforceable operating permits as soon as possible.
Regarding the statutory criteria of section 112(l)(5) referred to
above, EPA believes Kentucky's FESOP program contains adequate
authority to assure compliance with section 112 requirements because
the third criterion of the June 28, 1989, Federal Register document is
met. That is to say, Kentucky's program does not allow for the waiver
of any section 112 requirements. Sources that become minor through a
permit issued pursuant to this program would still be required to meet
the section 112 requirements applicable to non-major sources.
Regarding the requirement for adequate resources, EPA believes
Kentucky has demonstrated that it will provide adequate resources to
support the FESOP program. EPA expects that resources will continue to
be adequate to administer that portion of the State's minor source
operating permit program under which Federally enforceable operating
permits will be issued since Kentucky has administered a minor source
operating permit program for several years. EPA will monitor Kentucky's
implementation of its FESOP program to ensure that adequate resources
are in fact available. EPA also believes that Kentucky's FESOP program
provides for an expeditious schedule to assure compliance with section
112 requirements. This program will be used to allow a source to
establish a voluntary limit on potential to emit to avoid being subject
to a CAA requirement applicable on a particular date. Nothing in
Kentucky's FESOP program would allow a source to avoid or delay
compliance with a CAA requirement if it fails to obtain an appropriate
Federally enforceable limit by the relevant deadline. Finally, EPA
believes Kentucky's program is consistent with the intent of section
112 and the CAA for states to provide a mechanism through which sources
may avoid classification as major sources by obtaining Federally
enforceable limits on potential to emit.
Eligibility for Federally enforceable permits extends not only to
permits issued after the effective date of this rule, but also to
permits issued under the State's current rule prior to the effective
date of today's rulemaking. If the State followed its own regulation,
each issued permit that established a title I condition (e.g. for a
source to have minor source potential to emit) was subject to public
notice and prior EPA review. Therefore, EPA will consider all such
operating permits which were issued in a manner consistent with both
the State regulations and the five criteria as federally enforceable
upon the effective date of this action provided that any permits that
the State wishes to make federally enforceable are submitted to EPA and
accompanied by documentation that the procedures approved today have
been followed. EPA will expeditiously review any individual permits so
submitted to ensure their conformity with the program requirements.
With Kentucky's addition of these provisions and EPA's approval of
this revision to the SIP, Kentucky's FESOP program satisfies the
criteria described in the June 28, 1989, Federal Register document.
B. Review of Updated New Source Review Requirements
The second purpose of Kentucky's submittal was to update the
Federally approved regulations to reflect the updated State permitting
regulations. In adopting a single set of air permitting regulations for
both construction permits and operating permits, the State updated
numerous new source review provisions in conjunction with its adoption
of title V regulations. These rules specify which sources must have
title V permits (namely major sources), which sources must have State
minor source permits, and which minor sources do not need a permit.
Additional rules specify requirements for minor sources, which are
substantially equivalent to the title V operating permit requirements
in 40 CFR Part 70. These requirements include application procedures,
permit content, permit processing procedures, permit revision
procedures, criteria for treating activities as insignificant, Federal
enforceability, and coverage by a permit shield.
Numerous provisions governing major source new source review in
Kentucky are unaffected by the State's submittal. Kentucky's rules,
codified at 401 KAR 51:017 and 401 KAR 51:052, continue to provide
substantive requirements for prevention of significant deterioration
(i.e., major new source review in attainment areas) and major new
source review in nonattainment areas.
II. Final Action
In this action, EPA is approving Kentucky's air permitting
regulations as submitted on December 29, 1994. Furthermore, EPA
concludes that Kentucky's purposes in submitting these regulations have
been fulfilled. First, Kentucky has satisfied the criteria for issuing
Federally enforceable state operating permits. Second, these new
permitting regulations continue to satisfy relevant new source review
requirements.
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 in this Federal
Register publication, EPA is proposing to approve the SIP revision
should adverse or critical comments be filed. This action will be
effective November 27, 1995 unless, by October 27, 1995, adverse or
critical comments are received. If EPA receives such comments, 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 then be addressed in a subsequent final rule
based on this action serving as a proposed rule. EPA will not institute
a second comment period on this action.
[[Page 49778]]
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 November 27, 1995.
The Agency has reviewed this request for revision of the Federally-
approved SIP for conformance with the provisions of the 1990 Clean Air
Act Amendments enacted on November 15, 1990. EPA has determined that
this action conforms with those requirements.
This action has been classified as a Table 3 action for signature
by the Regional Administration under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995, memorandum from Mary Nichols, Assistant Administrator
for Air and Radiation. The office of Management and Budget (OMB) has
exempted this regulatory action from review under Executive Order
12866.
Under section 307(b)(1) of the CAA, 42 U.S.C. 7607(b)(1), petitions
for judicial review of this action must be filed in the United States
Court of Appeals for the appropriate circuit by November 27, 1995.
Filing a petition for reconsideration by the Administrator of this
final rule does not affect the finality of this rule for 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) of the
CAA, 42 U.S.C. 7607(b)(2).)
Nothing in this action shall be construed as permitting or allowing
or establishing a precedent for any future request for a revision to
any SIP. Each request for revision to the SIP shall be considered
separately in light of specific technical, economic, and environmental
factors and in relation to relevant statutory and regulatory
requirements.
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.
Under Sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,
1995, EPA must undertake various actions in association with proposed
or final rules that include a Federal mandate that may result in
estimated costs of $100 million or more to the private sector, or to
State, local, or tribal governments in the aggregate.
Through submission of this state implementation plan or plan
revision, the State has elected to adopt the program provided for under
Section 110 of the Clean Air Act. These rules may bind the State
government to perform certain actions and also require the private
sector to perform certain duties. To the extent that the rules being
approved by this action would impose no new requirements, such sources
are already subject to these regulations under State law. Accordingly,
no additional costs to the State government, or to the private sector,
result from this action. EPA has also determined that this final action
does not include a mandate that may result in estimated costs of $100
million or more to the State government in the aggregate or to the
private sector.
SIP approvals under section 110 and subchapter I, part D of the CAA
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 regulatory flexibility analysis would constitute
Federal inquiry into the economic reasonableness of state action. The
CAA forbids EPA to base its actions concerning SIPs on such grounds.
Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976);
42 U.S.C. 7410(a)(2).
List of Subjects in 40 CFR Part 52
Air pollution control, Carbon monoxide, Hydrocarbons, Incorporation
by reference, Intergovernmental relations, Lead, Nitrogen dioxide,
Ozone, Particulate matter, Sulfur oxides.
Dated: August 23, 1995.
Patrick M. Tobin,
Acting Regional Administrator.
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. 7401-7671q.
Subpart S--Kentucky
2. Section 52.920 is amended by adding paragraph (c)(81) to read as
follows:
Sec. 52.920 Identification of plan.
* * * * *
(c) * * *
(81) Revisions to air permit rules submitted by the Kentucky
Natural Resources and Environmental Protection Cabinet on December 29,
1994.
(i) Incorporation by reference. Revised Rule 401 KAR 50:035,
``Permits'', Sections 1 through 7, effective September 28, 1994.
(ii) Other material. None.
[FR Doc. 95-23963 Filed 9-26-95; 8:45 am]
BILLING CODE 6560-50-P
