05-21925. New Stationary Sources; Supplemental Delegation of Authority to the Commonwealth of Kentucky Department for Environmental Protection

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Delegation of authority.

SUMMARY:

The Commonwealth of Kentucky Department for Environmental Protection (KYDEP or agency) has requested that EPA delegate authority for implementation and enforcement of existing New Source Performance Standards (NSPS) which have been previously adopted by the agency but have remained undelegated by EPA, and has requested that EPA approve the mechanism for delegation (adopt-by-reference) of future NSPS. The purpose of KYDEP's request for approval of its delegation mechanism is to streamline existing administrative procedures by eliminating any unnecessary steps involved in the Federal delegation process. With this NSPS delegation mechanism in place, a new or revised NSPS promulgated by EPA will become effective in the Commonwealth of Kentucky on the date the NSPS is adopted-by-reference pursuant to a rulemaking of the Commonwealth of Kentucky's Natural Resources and Environmental Protection Cabinet, if the agency adopts the NSPS without change. “Adopt-by-reference” means the EPA promulgated standard has been adopted directly into the State regulations by reference to the Federal law. No further agency requests for delegation will be necessary. Likewise, no further Federal Register notices will be published.

In this action, EPA is delegating authority to KYDEP for implementation and enforcement of existing New Source Performance Standards (NSPS) which have been previously adopted by KYDEP and which are identified in the Supplementary Information section below. In addition, EPA is approving KYDEP's “adopt-by-reference” mechanism for delegation of future NSPS.

DATES:

The effective date is November 3, 2005.

ADDRESSES:

Copies of the request for delegation of authority are available for public inspection during normal business hours at the following locations:

Environmental Protection Agency, Region 4, Air Toxics and Monitoring Branch, 61 Forsyth Street, SW., Atlanta, Georgia 30303.

Natural Resources and Environmental Protection Cabinet, Department for Environmental Protection, Division for Air Quality, 803 Schenkel Lane, Frankfort, Kentucky 40601.

Effective immediately, all requests, applications, reports and other correspondence required pursuant to the delegated standards should not be submitted to the Region 4 office, but should instead be submitted to the following address:

Natural Resources and Environmental Protection Cabinet, Department for Environmental Protection, Division for Air Quality, 803 Schenkel Lane, Frankfort, Kentucky 40601.

FOR FURTHER INFORMATION CONTACT:

Keith Goff, Air Toxics and Monitoring Branch, Environmental Protection Agency, Region 4, 61 Forsyth St. SW., Atlanta, Georgia 30303, 404-562-9137. E-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

Sections 101, 110, 111(c)(1), and 301 of the Clean Air Act authorize EPA to delegate authority to implement and enforce the standards set out in 40 CFR Part 60, New Source Performance Standards (NSPS). On April 12, 1977, EPA initially delegated the authority for implementation and enforcement of the NSPS program to the KYDEP. This agency has subsequently requested a delegation of authority for implementation and enforcement of the previously adopted, undelegated part 60 NSPS categories listed below.

1. 40 CFR part 60, subpart Ea, adopted September 10, 2003.

2. 40 CFR part 60, subpart Eb, adopted September 10, 2003.

3. 40 CFR part 60, subpart Ec, adopted September 10, 2003.

4. 40 CFR part 60, subpart OOO, adopted July 17, 2000.

5. 40 CFR part 60, subpart WWW, adopted September 10, 2003.

6. 40 CFR part 60, subpart AAAA, adopted September 10, 2003.

7. 40 CFR part 60, subpart CCCC, adopted September 10, 2003.

EPA's review of Kentucky's pertinent laws, rules, and regulations has shown them to be adequate for implementation and enforcement of these existing, previously adopted, undelegated NSPS. Based on this review, EPA has determined that delegation of the above-referenced NSPS is appropriate, with the non-delegable exceptions noted below. All sources subject to the delegable requirements in these NSPS subparts will now be under the jurisdiction of the KYDEP, although EPA reserves the right to implement the Federal NSPS directly and continues to retain concurrent enforcement authority. The NSPS subparts and portions of subparts that may not be delegated, and are therefore not delegated by this action are:

1. Subpart A—§ 60.8(b) (2) and (3), § 60.11(e) (7) and (8), § 60.13 (g), (i) and (j)(2)

2. Subpart B—§ 60.22, § 60.27, and § 60.29

3. Subpart Da—§ 60.45a

4. Subpart Db—§ 60.44b(f), § 60.44b(g), § 60.49b(a)(4)

5. Subpart Dc—§ 60.48c(a)(4)

6. Subpart Ec—§ 60.56c(i)

7. Subpart J—§ 60.105(a)(13)(iii), § 60.106(i)(12)

8. Subpart Ka—§ 60.114a

9. Subpart Kb—§ 60.111b(f)(4), § 60.114b, § 60.116b(e)(3) (iii) and (iv), § 60.116b(f)(2)(iii)

10. Subpart O—§ 60.153(e)

11. Subpart EE—§ 60.316(d)

12. Subpart GG—§ 60.334(b)(2), § 60.335(f)(1)

13. Subpart RR—§ 60.446(c)

14. Subpart SS—§ 60.456(d)

15. Subpart TT—§ 60.466(d)

16. Subpart UU—§ 60.474(g)

17. Subpart VV—§ 60.482-1(c)(2) and § 60.484

18. Subpart WW—§ 60.496(c)

19. Subpart XX—§ 60.502(e)(6)

20. Subpart AAA—§ 60.531, § 60.533, § 60.534, § 60.535, § 60.536(i)(2), § 60.537, § 60.538(e), § 60.539

21. Subpart BBB—§ 60.543(c)(2)(ii)(B)

22. Subpart DDD—§ 60.562-2(c)

23. Subpart III—§ 60.613(e)

24. Subpart NNN—§ 60.663(e)

25. Subpart RRR—§ 60.703(e)

26. Subpart SSS—§ 60.711(a)(16), § 60.713(b)(1)(i), § 60.713(b)(1)(ii), § 60.713(b)(5)(i), § 60.713(d), § 60.715(a), § 60.716

27. Subpart TTT—§ 60.723(b)(1), § 60.723(b)(2)(i)(C), § 60.723(b)(2)(iv), § 60.724(e), § 60.725(b)

28. Subpart VVV—§ 60.743(a)(3)(v)(A) and (B), § 60.743(e), § 60.745(a), § 60.746

29. Subpart WWW—§ 60.754(a)(5)

In addition, EPA is approving KYDEP's “adopt-by-reference” delegation mechanism for future NSPS. EPA's review of the pertinent laws, rules, and regulations for the agency has shown them to be adequate for implementation and enforcement of existing, previously adopted, undelegated NSPS and future NSPS. Future NSPS regulations will contain a list of sections that cannot be delegated for that subpart. With this NSPS “adopt-by-reference” delegation mechanism in place, a new or revised NSPS promulgated by EPA will become effective in the Commonwealth of Kentucky on the date the NSPS is adopted-by-reference pursuant to a rulemaking of the Commonwealth of Kentucky's Natural Resources and Environmental Protection Cabinet, if the agency adopts the NSPS without change. EPA reserves the right to implement the Federal NSPS directly and continues to retain concurrent enforcement authority.

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 imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this action 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 action delegates pre-existing requirements under Federal law and does not impose any additional enforceable duty beyond that required by Federal 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 action 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 delegates the implementation and enforcement of an existing Federal standard and approves a delegation mechanism for future Federal standards, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This action 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. The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, does not apply because this action is not a rule, as that term is defined in 5 U.S.C. 804(3).

In reviewing delegation requests and mechanisms for delegation, 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 State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a delegation request or disapprove a proposed delegation mechanism for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a delegation request or proposed delegation mechanism, to use VCS in place of a delegation request or proposed delegation mechanism 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 action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). This action granting delegation authority for implementation and enforcement of existing New Source Performance Standards and approving a delegation mechanism for future NSPS is issued under the authority of sections 101, 110, 111, and 301 of the Clean Air Act, 42 U.S.C. 7401, 7410, 7411, and 7601.

Authority: 42 U.S.C. 7401 et seq.

Dated: October 17, 2005.

A. Stanley Meiburg,

Acting Regional Administrator, Region 4.