[Federal Register Volume 63, Number 159 (Tuesday, August 18, 1998)]
[Rules and Regulations]
[Pages 44143-44146]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-22054]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[KY 99-1-9820a; FRL-6142-7]


Designation of Areas for Air Quality Planning Purposes--Kentucky: 
Redesignation of the Muhlenberg County Sulfur Dioxide Secondary 
Nonattainment Area to Attainment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: On November 21, 1997, the Commonwealth of Kentucky submitted, 
through the Natural Resources and Environmental Protection Cabinet (the 
Cabinet), a request for redesignation of Muhlenberg County, Kentucky, 
to attainment for the secondary sulfur dioxide (SO2) 
National Ambient Air Quality Standard (NAAQS). The secondary 
nonattainment designation for SO2 was based on the fact that 
the Tennessee Valley Authority (TVA) Paradise Steam Plant was out of 
compliance with its allowable emission limit. The Cabinet submitted air 
dispersion modeling which demonstrates that the secondary (NAAQS) for 
SO2 are now being maintained. The EPA is approving the 
request for redesignation.

DATES: This direct final rule is effective on October 19, 1998 without 
further notice, unless EPA receives adverse comment by September 17, 
1998. If EPA receives adverse comment, we 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 should be addressed to: Scott M. Martin, 
Regulatory Planning Section, Air Planning Branch, Air, Pesticides & 
Toxics Management Division, Region 4 Environmental Protection Agency, 
61 Forsyth Street, Atlanta, Georgia 30303.
    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.

Environmental Protection Agency, Region 4 Air Planning Branch, 61 
Forsyth Street, Atlanta, Georgia 30303.
Mr. John E. Hornback, Director, Division of Air Quality, Department for 
Environmental Protection, Natural Resources and Environmental 
Protection Cabinet, 803 Schenkel Lane, Frankfort, Kentucky 40601.

FOR FURTHER INFORMATION CONTACT: Scott M. Martin, Regulatory Planning 
Section, Air Planning Branch, Air, Pesticides & Toxics Management 
Division, Region 4 Environmental Protection Agency, 61 Forsyth Street, 
Atlanta, Georgia 30303. The telephone number is 404-562-9036.

SUPPLEMENTARY INFORMATION: In a Federal Register document published 
March 3, 1978, (see 43 FR 8962) Muhlenberg County was originally 
designated nonattainment for the primary and secondary SO2 
NAAQS. The nonattainment designation was due to noncompliance of the 
TVA Paradise Plant and the Kentucky Utilities' Green River Plant. In a 
June 24, 1983, Federal Register (see 48 FR 28988) EPA approved a 
redesignation request for Muhlenberg County from nonattainment to 
attainment for the SO2 primary NAAQS. The redesignation 
request for attainment of the primary standard was approved based on 
the fact that the Kentucky Utilities' Green River Plant had already 
achieved final compliance with its modeled SO2 emission 
limit of 3.5 lbs/MMBTU in 1980 and that the TVA Paradise Plant had 
achieved compliance with its modeled SO2 emission limit of 
5.2 lbs/MMBTU. Both of these emission limitations were determined by 
modeling to be adequate

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to attain and protect the primary SO2 NAAQS. Additionally, 
in the same June 24, 1983, Federal Register indicated that a modeled 
SO2 emission limitation of 3.1 lbs/MMBTU was required for 
TVA Paradise Plant in order for the area to achieve and maintain the 
SO2 secondary NAAQS. The TVA Paradise Steam Plant has and 
continues to comply with the more stringent SO2 emission 
limitation which is the basis for the request for secondary 
redesignation. The Commonwealth of Kentucky has met all of the Clean 
Air Act Amendments of 1990 (CAA) requirements for redesignation 
pursuant to Section 107(d)(3)(E).

Section 107(d)(3)(E)(I)  The Administrator Has Determined That the 
Area Has Attained the NAAQS

    The Cabinet submitted air quality data showing that Muhlenberg 
County has attained the SO2 secondary NAAQS since 1982. 
During that period there were no exceedances, and hence, no violations 
of the SO2 NAAQS.

Section 107(d)(3)(E)(ii)  The Administrator Has Fully Approved the 
Applicable Implementation Plan for the Area Under Section 110(k)

    The Kentucky SIP is fully approved and meets all requirements under 
section 110(k) which are applicable to Muhlenberg County. In a Federal 
Register published on June 24, 1983, (see 48 FR 28988) it is stated 
that an emission limit of 3.1 lbs/MMBTU for the TVA Paradise Plant is 
required in order for Muhlenberg County to attain the SO2 
secondary NAAQS. The TVA Paradise Plant was required to meet an 
emission limitation of 5.2 lbs/MMBTU until December 1, 1983, at which 
time the plant must meet the 3.1 lbs/MMBTU limit. The 3.1 lbs/MMBTU 
limit is presently part of Kentucky's approved SIP and is currently 
enforceable by EPA (see 45 FR 72153).

Section 107(d)(3)(E)(iii)  The Administrator Determines That the 
Improvement in Air Quality Is Due to Permanent and Enforceable 
Reductions in Emissions Resulting From Implementation of the 
Applicable Implementation Plan and Applicable Federal Air Pollutant 
Control Regulations and Other Permanent and Enforceable Reductions

    The TVA Paradise Plant and the Kentucky Utilities' Green River 
Plant are the only two significant sources of SO2 in 
Muhlenberg County. New emission standards were established for the 
Green River and TVA Paradise plants. The Green River Plant achieved 
compliance with its new 3.5 lbs/MMBTU emission limit for SO2 
in 1980 and the TVA Paradise Plant achieved compliance with its new 3.1 
lbs/MMBTU for SO2 in 1983 (see 48 FR 28988).

Section 107(d)(3)(E)(iv)  The Administrator Has Fully Approved a 
Maintenance Plan for the Area as Meeting the Requirements of 
Section 175A

    Muhlenberg County is currently classified as secondary 
nonattainment for the SO2 NAAQS and maintenance plans are 
not required for secondary nonattainment areas. Thus, Kentucky did not 
submit a maintenance plan.

Section 107(d)(3)(E)(v)  The State Containing Such Area Has Mmet 
All Requirements Applicable to the Area Under Section 110 and Part 
D

    Kentucky has complied with all requirements of section 110 of the 
CAA part D. Additionally, a Prevention of Significant Deterioration 
(PSD) program exists in Kentucky and applies to Muhlenberg County. By 
administering the requirements of PSD in Muhlenberg County, any new or 
modified source must address the potential impacts of SO2 
emissions in that area. This would include modeling to assess the 
potential ambient impact in the vicinity of the TVA Paradise Steam 
Plant. These requirements will protect the SO2 NAAQS in the 
Muhlenberg County area. Therefore, Kentucky has complied with all 
requirements of section 110 and part D of the CAA and has satisfied all 
requirements of section 107(d)(3)(E).

Final Action

    In this action, EPA is approving the request to redesignate 
Muhlenberg County, Kentucky, to attainment for the secondary 
SO2 NAAQS.
    The SO2 SIP is designed to satisfy the requirements of 
part D of the CAA and to provide for attainment and maintenance of the 
SO2 NAAQS. This final redesignation should not be 
interpreted as authorizing the State to delete, alter, or rescind any 
of the SO2 emission limitations and restrictions contained 
in the approved SO2 SIP. Changes to SO2 SIP 
regulations rendering them less stringent than those contained in the 
EPA approved plan cannot be made unless a revised plan for attainment 
and maintenance is submitted to and approved by EPA. Unauthorized 
relaxations, deletions, and changes could result in both a finding of 
non-implementation (section 173(b) of the CAA) and in a SIP deficiency 
call made pursuant to section 110(a)(2)(H) of the CAA.
    The 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 published 
elsewhere in this Federal Register publication, the EPA is proposing to 
approve the SIP revision should adverse or critical comments be filed. 
This action will be effective October 19, 1998 unless, by September 17, 
1998, adverse or critical comments are received, or the areas fail to 
continue in attainment status until the final notice approving such 
redesignation is effective.
    If the EPA receives such comments or the areas fail to continue in 
attainment status until the final document approving such redesignation 
is effective, 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 be addressed in a subsequent 
final rule based on the companion proposed rule.
    The EPA will not institute a second comment period on this action. 
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 October 19, 1998.
    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, section 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

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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.

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.
    Redesignation of an area to attainment under section 107(d)(3)(E) 
of the CAA does not impose any new requirements on small entities. 
Redesignation is an action that affects the status of a geographical 
area and does not impose any regulatory requirements on sources. The 
Regional Administrator certifies that the approval of the redesignation 
request will not affect a substantial number of small entities.

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. Disclaimer Language Approving SIP Revisions in Audit Law States

    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.

F. Submission to Congress and the Comptroller General

    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).

G. 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 October 19, 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 81

    Environmental protection, Air pollution control, National parks, 
Wilderness areas.

    Dated: August 3, 1998.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.

    40 CFR part 81 is amended as follows:

PART 81--[AMENDED]

    1. The authority citation for part 81 continues to read as follows:

    Authority: 42.U.S.C. 7401-7671q.

Subpart C--Section 107 Attainment Status Designations

    2. In section 81.318, the ``Kentucky-SO2'' table is 
amended by revising the entries for ``Muhlenberg County'' to read 
``Better than national standards.''


Sec. 81.318  Kentucky

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                                                  Kentucky-SO2                                                  
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                                                               Does not     Does not                            
                                                                 meet         meet      Cannot be    Better than
                      Designated area                          primary     secondary    classified    national  
                                                              standards    standards                  standards 
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      *                   *                   *                   *                   *                   *     
                                                           *                                                    
Muhlenberg County..........................................  ...........  ...........  ...........            X 
                                                                                                                
      *                   *                   *                   *                   *                   *     
                                                           *                                                    
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[FR Doc. 98-22054 Filed 8-17-98; 8:45 am]
BILLING CODE 6560-50-P