06-7415. Approval and Promulgation of Implementation Plans for Kentucky: Air Permit Regulations

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is now taking final action to approve two of four requested revisions to the State Implementation Plan (SIP) for the Commonwealth of Kentucky submitted to EPA on March 15, 2001. The two revisions being approved today regard two main changes to Kentucky's rules. The first change involves the removal and separation of rule 401 Kentucky Administrative Regulations (KAR) 50:035 (“Permits”) into three separate rules under a new Chapter 52 (Permits, Registrations, and Prohibitory Rules). Specifically, these rules are 52:001 (Definitions for 401 KAR Chapter 52), 52:030 (Federally-enforceable permits for non-major sources), and 52:100 (“Public, affected state, and U.S. EPA review”). The second change involves corrections to grammatical errors in rule 50:032 (“Prohibitory Rule for Hot Mix Asphalt Plants”) and the removal of rule 50:032 from Chapter 50 and adding it to Chapter 52, under 52:090 (“Prohibitory Rule for Hot Mix Asphalt Plants”). This final action also responds to adverse comments submitted in response to EPA's proposed rule published on December 30, 2002. This final action does not address the removal of 401 KAR 50:030 (“Registration of Sources”) or changes made to 401 KAR 52:080 (“Regulatory limit on potential to emit”), that was part of the March 15, 2001, submittal, but which will be addressed in a separate action.

DATES:

Effective Date: This rule will be effective October 6, 2006.

ADDRESSES:

EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2006-0337. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy at the Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT:

James Hou, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, Region 4, U.S. Environmental Protection Agency, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. The telephone number is [phone]. Mr. Hou can also be reached via electronic mail at [e-mail].

SUPPLEMENTARY INFORMATION:

I. Today's Action

II. Background

III. Comment and Response

IV. Final Action

V. Statutory and Executive Order Reviews

I. Today's Action

EPA is now taking final action to approve two of four requested revisions to the (SIP) for the Commonwealth of Kentucky submitted to EPA on March 15, 2001, and clarified in a letter dated July 18, 2001. The SIP submittal and the letter-clarification were submitted by the Kentucky Department for Environmental Protection, Division of Air Quality. The two revisions being approved today regard two main changes to Kentucky's rules. The first change involves the removal and separation of rule 401 Kentucky Administrative Regulations (KAR) 50:035 (“Permits”) into three separate rules under a new Chapter 52 (Permits, Registrations, and Prohibitory Rules). Specifically, these rules are 52:001 (Definitions for 401 KAR Chapter 52), 52:030 (“Federally-enforceable permits for non-major sources”), and 52:100 (“Public, affected state, and U.S. EPA review”). The second change involves corrections to grammatical errors in rule 50:032 (“Prohibitory Rule for Hot Mix Asphalt Plants”) and the removal of rule 50:032 from Chapter 50 and adding it to Chapter 52, under 52:090 (“Prohibitory Rule for Hot Mix Asphalt Plants”). Today's final action also responds to one set of adverse comments submitted in response to EPA's proposed rule published on December 30, 2002 (67 FR 79543). Today's final action does not address the removal of 401 KAR 50:030 (“Registration of Sources”) or changes made to 401 KAR 52:080 (“Regulatory limit on potential to emit”), which will be addressed in a separate action. Therefore, today's final action approves a total of four rules into the Kentucky SIP; 401 KAR 52:001, 401 KAR 52:030, 401 KAR 52:090, and 401 KAR 52:100 and the removal of rules 401 KAR 50:032 and 401 KAR 50:035. This final action is consistent with section 110 of the Clean Air Act.

II. Background

On December 30, 2002, EPA simultaneously published a proposed rule (67 FR 79543, December 30, 2002) and a direct final rule (67 FR 79523, December 30, 2002) to approve the above described revisions to the Kentucky SIP, submitted by Kentucky on March 15, 2001. Because EPA received one set of adverse comments during the public comment period, EPA withdrew the direct final rule on February 10, 2003 (68 FR 6629). Today, EPA is taking final action on the Kentucky SIP revisions proposed for approval on December 30, 2002, as well as responding to the set of adverse comments received on that proposed action, with the exception of the portions of the March 15, 2001, submittal noted above.

III. Response to Comments

EPA received comments from one commenter who opposed the proposed revision to the Kentucky SIP published on December 30, 2002 (67 FR 79543). A summary of the adverse comments received on the proposed rule and EPA's response to the comments, is presented below.

Comment: The commenter requests that EPA: (1) Reject approval of 401 KAR 52:001 and 401 KAR 52:100 and reject incorporation of these provisions into 40 Code of Federal Regulations (CFR) Part 52, Subpart S; (2) provide an additional comment period if EPA proposes to approve any non-emergency amendment of 40 CFR part 52, subpart S; (3) command that all prevention of significant deterioration (PSD) portions of 40 CFR part 124 apply to PSD permitting actions by Kentucky; and (4) cancel all authority that EPA gave to Kentucky to issue PSD permits.

Response: The following response will address each of the issues raised in the above comment in turn. First, the provisions contained in 401 KAR 52:001 (“Definitions for 401 KAR Chapter 52”) and 401 KAR 52:100 (“Public, affected state, and U.S. EPA review”) are required to be a part of the Kentucky SIP. Both the definitions and the public review provisions are consistent with federal requirements for the programs to which they apply. Therefore, the proposed rules are approvable into the Kentucky SIP. As a point of clarification, 401 KAR 52:001 and 52:100 relate specifically to Kentucky's Clean Air Act (CAA) title V permit program and Kentucky's Federally Enforceable State Operating Permit (FESOP) program. Kentucky's PSD permit rules, found in 401 KAR Chapter 51, refer to the public review provisions of 401 KAR 52:100, but only to the extent that such provisions are more stringent than the public review provisions found in the federal rule, 40 CFR 51.166(q).

Second, the Kentucky SIP, like many other SIPs, is regularly amended. Most recently, EPA proposed revisions to the Kentucky SIP on February 10, 2006 (71 FR 6988). This revision dealt specifically with Kentucky's PSD regulations. No public comments were received. The commenter failed to state any reason why the comment period for the present proposal (67 FR 79543) should be reopened.

Third, the commenter's request to expand the applicability of 40 CFR part 124 is not relevant to the present action which does not propose any changes to 40 CFR part 124. 40 CFR part 124 governs EPA procedures for certain permit actions (e.g., issuance, termination), but it does not apply to PSD permits issued by approved state agencies (40 CFR 124.1(e)). Rather, the public review procedures of PSD permits issued by an approved state are governed by 40 CFR 51.166(q). Kentucky's PSD regulations (401 KAR 51:017) require that Kentucky follow the public review procedures in 40 CFR 51.166(q), and any more stringent requirements existing in 401 KAR 52:100.

Fourth, the present action does not relate to Kentucky's authority to issue PSD permits, and therefore, EPA cannot “cancel” Kentucky's authority to issue PSD permits at this time.

Comment: EPA must act to provide a “swift and certain remedy,” (1) where KAR is different from 40 CFR 52.21(b) through (w); or (2) where KAR provides less effective technical environmental protection, less effective opportunity for public participation in the permitting process, or less effective legal forums and processes for review of questioned decisions.

Response: The proposed SIP revision at issue (67 FR 79543) relates only to specific portions of the KAR and it does not relate to Kentucky's PSD regulations. Therefore, the comment is not relevant to the proposed action. Nonetheless, as a point of clarification, 40 CFR 52.21 contains the Federal PSD program (i.e., if EPA were administering the PSD program). States may meet the requirements of the federal regulations with different but equivalent rules. As noted earlier, Kentucky recently revised its PSD program. That revision was noticed in the Federal Register and no public comments were received. It is not clear from the comment what “swift and certain remedy” the commenter requests EPA to take, but the comment is not relevant to the proposed action at issue at this time.

Comment: 401 KAR 52:100 is patently and callously contemptuous of the intent of the Federal Clean Air Act.

Response: The commenter fails to provide information demonstrating how 401 KAR 52:100 is “contemptuous” of the Clean Air Act (CAA). 401 KAR 52:100 is consistent with federal regulations promulgated pursuant to EPA's authority under the Clean Air Act.

Comment: There appears to be no parallel in the CAA or the CFR to 401 KAR 52:100, Section 2(3)(c), which grants the applicant ten (10) days of exclusive lawful speech. The commenter believes that this provision is not consistent with the CAA and 40 CFR 124.13. The commenter also believes that if the applicant cannot comment within the same timeframe as the public, then the PSD permit should not be issued to the applicant.

Response: As noted earlier, the provisions included in 40 CFR part 124 do not apply to the issuance of PSD permits by approved states. With regard to the comment about 401 KAR 52:100, Section 2(3)(c), a state may satisfy the Federal regulations with different but equivalent regulations, and a state may include additional procedures not included in the Federal regulations so long as the rule is not less stringent. This provision is not less stringent and does not impact the public's ability to comment on the proposed action. 401 KAR 52:100 is equivalent to the Federal regulations for the programs to which it applies and it is approvable into the Kentucky SIP.

As a point of clarification, this additional comment period is not an opportunity for the applicant to comment on the proposed permit, but rather, an opportunity for the applicant to respond to public comments received during the public comment period. This response to comments by the applicant is discretionary (i.e., the applicant may or may not actually provide such comments). Further, the response by the applicant is useful for both the reviewing agency and the public because it establishes a forum in which the applicant is responding to the public's concerns. The response to comments document is made part of the public record. Many state permitting programs include this provision to allow for a forum in which the applicant can respond to public comments and assist in public understanding of the issues in the application.

Comment: There appears to be no effective provision in 401 KAR 52:100 for extension of comment time. The commenter references 40 CFR 124.13, which allows for a comment period longer than 30 days to give reasonable opportunity to reply if such a need for time is demonstrated.

Response: As a general matter, the provisions of 40 CFR part 124 apply only to EPA and not to approved states. For state approved programs, such as CAA title V or PSD permit programs, the applicable public participation regulations are found in the federal regulations applicable to that specific state approved program. For example, for title V purposes, state programs must comply with the public participation provisions described in 40 CFR part 70; for PSD purposes, state programs must comply with the public participation provisions described in 40 CFR 51.166(q). 401 KAR 52:100 is consistent with the federal regulations for the programs to which it applies.

Comment: The commenter expresses that Section 3 of 401 KAR 52:100 is written as if a public hearing is optional. The commenter refers to the CAA and suggests that a hearing is obligated for many PSD matters.

Response: Kentucky's PSD regulations (401 KAR 51:017) require that the permitting authority follow the applicable procedures of 40 CFR 51.166(q) and 401 KAR 52:100.

Comment: The commenter states that citizens, in an area where a new major source is to be located or where an existing source is requesting a major modification, should be entitled and informed of the public participation process including five elements. These elements obligate a hearing if there is a request; affords time, such as at least 30 calendar days prior to the hearing during which citizens may familiarize themselves with the draft, the technical support of the draft, and the application; grant to anyone who makes some cogent timely comment, the legal standing right to appeal any issue raised by anyone's cogent timely comment; obligate that if a cogent technical comment is made orally at the hearing, that it has the full force of law and that it need not be submitted by the speaker in writing in order to be an item preserved for review (although encouraging written submissions for accuracy and courtesy to the permitting agency is proper), and; afford time, such as at least 12 calendar days following the hearing, during which citizens may timely file written comment on the draft after having had the opportunity to have heard the matters expressed in the hearing. The commenter further requests that EPA initiate rulemaking for various regulatory permit programs to “codify” certain public participation elements.

Response: With regard to the actions at issue at this time, Kentucky's provisions are equivalent to applicable federal regulations. Therefore, Kentucky's rules proposed for inclusion into the SIP are approvable by EPA.

Comment: The commenter expresses that Section 5 of 401 KAR 52:100 does not contain “identical, synonymous, or superior text as a notice requirement.” The commenter points to a January 2002 legal notice published by the Kentucky Division for Air Quality (KDAQ) as an example of a deficient public notice.

Response: In accordance with Kentucky's rules, public notice and participation on PSD permits is governed by 40 CFR 51.166(q). It is unclear whether the commenter believes that the KDAQ January 2002 legal notice fails to comply with the provisions in the Kentucky rules which apply to such notices. Nonetheless, the SIP action proposed by EPA on December 30, 2002, does not relate to the January 2002 public notice on a PSD permit discussed by the commenter. Comments regarding specific PSD permits and corresponding public notices should be raised during the public comment period on that permit and addressed to the agency responsible for issuing that permit. This comment is not relevant to the action at issue at this time.

Comment: The commenter asserts that the requirements of 40 CFR 51.166 are “terse to the point of near meaninglessness” and do not comply with Congressional intent for public participation. The commenter makes a similar statement regarding portions of 40 CFR part 124. The commenter gives specific examples of what a public notice could include.

Response: Neither of the provisions cited by the commenter are at issue in this final action regarding Kentucky's SIP. Both provisions are final federal rules that have been in effect for years. Comments regarding federal rules should have been provided within the timeframes for challenging such rules (i.e., when EPA proposes changes to federal rules, comments must be submitted within the stated timeframes in order to be considered by EPA for that rulemaking). The present action will have no impact on 40 CFR 51.166 or 40 CFR part 124.

Comment: The commenter notes that Section 2(4) of 401 KAR 52:100 will make public comments available upon request and believes the comments may be abridged, which does not meet the requirements set forth in 40 CFR 51.166.

Response: The commenter appears confused about the application of 401 KAR 52:100 to different air permit programs. As noted earlier, Kentucky's PSD permitting regulations require that the permitting authority follow the provisions described in 40 CFR 51.166 for public participation. 401 KAR 52:100 applies specifically to CAA title V operating permits (401 KAR 52:020) and Federally Enforceable State Operating Permits (FESOPs) (401 KAR 52:030). The language included in 401 KAR 52:100 is equivalent to federal regulations regarding public participation for the programs to which it applies. Therefore, the regulations proposed by Kentucky for inclusion in the Kentucky SIP are approvable.

Comment: The commenter states that much of 401 KAR 52:001 does not meet requirements established in 40 CFR 51.166(a). The commenter identifies several examples where the commenter believes that definitions in 401 KAR 52:001 are less stringent than the federal definitions, or otherwise problematic. As examples, the commenter cites to the definition of “electric utility steam generating unit,” “commence,” and “major modification.”

Response: Kentucky's PSD permitting definitions are found in 401 KAR 51:001, not 52:001. Kentucky's rules, including 401 KAR 52:001, are equivalent to the applicable federal regulations, and are approvable into the Kentucky SIP. Notably, the definitions included in Kentucky's PSD permit program (401 KAR Chapter 51) were recently revised by Kentucky to include new regulations promulgated by EPA in December, 2002. EPA published a notice regarding Kentucky's PSD program in the Federal Register on February 10, 2006 (71 FR 9688); no public comments were received on that proposed action. EPA took final action to approve those changes on July 11, 2006 (71 FR 38990).

Comment: With regard to a statement in 67 FR 79524 (the direct final rule that was withdrawn), the commenter states that “[t]he people are reasonably entitled to review EPA's work again prior to EPA granting any additional misplaced authority to a rogue state.”

Response: The procedure followed by EPA in the present action included the simultaneous publication of both a direct final rule (67 FR 79524, December 30, 2002) and a proposed rule (67 FR 79543, December 30, 2002). As noted in the direct final action, when EPA receives adverse comments on direct final rules, EPA withdraws the direct final rule and issues a final rule based on the simultaneously published proposed rule. EPA withdrew the direct final rule on February 10, 2003 (68 FR 6629). EPA's review of the proposed SIP revision by Kentucky was comprehensive. EPA is now taking final action based on the proposal, and addressing the one set of adverse comments received on the proposed action.

Comment: The commenter states that 67 FR 79523 and 79543 are devoid of explanation for the proposed addition of 401 KAR 52:001 and 401 KAR 52:100. The commenter further notes that 40 CFR part 52, subpart S is defective.

Response: EPA disagrees with the commenter's statement. The two Federal Register notices cited by the commenter include specific information regarding what actions are being taken by EPA. The Kentucky SIP contains rules that are equivalent to the applicable Federal rules. The commenter fails to provide any reason why 40 CFR part 52, subpart S is defective.

Comment: The commenter states that Kentucky should be sanctioned for having acted in contempt of the CAA.

Response: The commenter has not provided any information demonstrating how Kentucky has acted in “contempt” of the CAA. This comment does not appear relevant to the action proposed by EPA regarding the Kentucky SIP. EPA disagrees with the commenter's conclusion regarding sanctions.

Comment: The commenter states that there can be no doubt that Kentucky knowingly and intentionally submitted to EPA rules that provide less effective technical environmental protection; less effective opportunity for informed public participation in the permitting process; and less effective legal forums and processes for review of questioned decisions than that given to those where 40 CFR 52.21 and 40 CFR part 124 are fully applicable to PSD permits.

Response: EPA has no information or evidence suggesting that Kentucky has knowingly and intentionally violated any provision of the CAA or its implementing regulations. As noted earlier, 40 CFR part 124 does not apply to PSD permits issued by state permitting authorities and likewise, the provisions in 40 CFR 52.21 govern only EPA issuance of PSD permits.

Comment: The commenter appears to state concern regarding the time that EPA took to review the Kentucky SIP revision at issue.

Response: In reviewing the Kentucky SIP revision at issue, EPA followed its SIP processing guidance, its regulations at 40 CFR part 51, Appendix V, and the requirements of Section 110 of the Clean Air Act.

IV. Final Action

EPA is now taking final action to approve two of four requested revisions to the SIP for the Commonwealth of Kentucky submitted to EPA on March 15, 2001. The first revision being approved regards the removal and separation of rule 401 Kentucky Administrative Regulations (KAR) 50:035 (“Permits”) into three separate rules under a new Chapter 52 (Permits, Registrations, and Prohibitory Rules). Specifically, these rules are 52:001 (Definitions for 401 KAR Chapter 52), 52:030 (Federally-enforceable permits for non-major sources), and 52:100 (“Public, affected state, and U.S. EPA review”). The second change involves corrections to grammatical errors in rule 50:032 (“Prohibitory Rule for Hot Mix Asphalt Plants”) and the removal of rule 50:032 from Chapter 50 and adding it to Chapter 52, under 52:090 (“Prohibitory Rule for Hot Mix Asphalt Plants”).

V. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the Commonwealth to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

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 November 6, 2006. 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 Clean Air Act section 307(b)(2).

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Ozone
• Reporting and recordkeeping requirements
• Volatile organic compounds

Dated: August 25, 2006.

A. Stanley Meiburg,

Acting Regional Administrator, Region 4.

40 CFR part 52 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(c) Table 1 is amended:

a. In paragraph (c) by removing entries for 401 KAR 50:035 titled “Permits” and 401 KAR 50:032 titled “Prohibitory rule for hot mix asphalt plants”,

b. In paragraph (c) adding in numerical order a new chapter heading “Chapter 52 Permits, Registrations, and Prohibitory Rules” and entries for 401 KAR 52:001 titled “Definitions for 401 KAR Chapter 52”, 401 KAR 52:030 titled “Federally enforceable permits for non-major sources”, 401 KAR 52:090 titled “Prohibitory rule for hot mix asphalt plants” and 401 KAR 52:100 titled “Public, affected state, and U.S. EPA review” to read as follows:

§ 52.920

Identification of plan.

* * * * *

(c) * * *

Table 1.—EPA-Approved Kentucky Regulations

State citation	Title/subject	State effective date	EPA approval date	Explanation
*         *         *         *         *         *         *
Chapter 52 Permits, Registrations, and Prohibitory Rules
401 KAR 52:001	Definitions for 401 KAR Chapter 52	01/15/01	09/06/06 [Insert citation of publication]
401 KAR 52:030	Federally enforceable permits for non-major sources	01/15/01	09/06/06 [Insert citation of publication]
401 KAR 52:090	Prohibitory rule for hot mix asphalt plants	01/15/01	09/06/06 [Insert citation of publication]
401 KAR 52:100	Public, affected state, and U.S. EPA review	01/15/01	09/06/06 [Insert citation of publication]
*         *         *         *         *         *         *

* * * * *