[Federal Register Volume 63, Number 142 (Friday, July 24, 1998)]
[Rules and Regulations]
[Pages 39739-39741]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-19841]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[KY-100-1-9814a; FRL-6126-1]


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 the revisions to the Commonwealth of 
Kentucky's State Implementation Plan (SIP) for the general application 
and attainment status designations. The Commonwealth of Kentucky, 
through the Kentucky Natural Resources and Environmental Protection 
Cabinet (KNREPC) submitted the revisions to EPA on December 19, 1997.

[[Page 39740]]

    The revisions to the general application rule clarify the 
reasonably available control technology (RACT) requirements to assure 
compatibility with the 1990 Clean Air Act (CAA) requirements for major 
sources of volatile organic compounds (VOCs) in ozone nonattainment 
areas. The attainment status designations regulation is being amended 
to make the boundaries and classifications of nonattainment areas for 
ozone compatible with the Federal classification. The submittal also 
included the transportation conformity regulation. Action on that 
portion of the submittal will be taken in a separate document.

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. 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-100-1-9814. 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 December 19, 1997, the Commonwealth of 
Kentucky, through the KNREPC, submitted revisions to the general 
application and attainment status designations portions of the Kentucky 
SIP to EPA. The general application section is amended to clarify the 
applicability and RACT determination guidelines for VOC sources in 
moderate and above ozone nonattainment areas. The attainment status 
designations rule is amended to modify the boundaries and 
classifications of nonattainment areas for ozone to make them 
compatible with Federal revised classifications. The miscellaneous rule 
revisions from the December 19, 1997, submittal that are being approved 
in this action are discussed below.
    Rule 401 KAR 50:012 Section 1--This new subsection is added to 
clarify the RACT requirements to assure compatibility with the CAA 
requirements for major sources of VOC in ozone nonattainment areas. The 
subsection specifies the applicability and guidelines for RACT 
determination.
    Rule 401 KAR 50:010 Section 1.3--The definition of ``road'' is 
added for clarification in the rule.
    Rule 401 KAR 50:010 Section 2.3--The definition of ``road, 
junction, or intersection of two (2) or more roads'' is added to 
clarify a nonattainment boundary for a designated ozone nonattainment 
area.
    Rule 401 KAR 50:010 Section 7--This section is revised to change 
the roads used in portions of Bullitt County and Oldham County to 
define the Kentucky portion of the Louisville moderate ozone 
nonattainment area. The Federally approved nonattainment boundary was 
revised on September 20, 1995 (See 60 FR 48653). This revision makes 
the Kentucky rule consistent with the EPA approved boundaries.

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 the 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 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.

[[Page 39741]]

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).

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. 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).

F. 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,

Acting 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)(89) to read 
as follows:


Sec. 52.920  Identification of plan.

* * * * *
    (c)
    (89) Revisions to the Kentucky State Implementation Plan submitted 
by the Natural Resources and Environmental Protection Cabinet on 
December 19, 1997. The regulations being revised are 401 KAR 50:012 
General application and 401 KAR 51:010 Attainment status designations.
    (i) Incorporation by reference. Division of Air Quality regulations 
401 KAR 50:012 General application and 401 KAR 51:010 Attainment status 
designations are effective November 12, 1997.
    (ii) Other material. None.

[FR Doc. 98-19841 Filed 7-23-98; 8:45 am]
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