[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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