[Federal Register Volume 63, Number 235 (Tuesday, December 8, 1998)]
[Rules and Regulations]
[Pages 67586-67591]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-32423]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[KY-102-106-9903a; FRL-6192-1]


Approval and Promulgation of Implementation Plans; Commonwealth 
of Kentucky

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Commonwealth of Kentucky, through the Kentucky Natural 
Resources and Environmental Protection Cabinet (KNREPC), submitted to 
EPA on February 3, 1998, revisions to the Kentucky State Implementation 
Plan (SIP) adding Stage II controls at certain gasoline dispensing 
facilities. Subsequently, on September 11, 1998, the Commonwealth 
submitted the 15 Percent Volatile Organic Compound (VOC) Reduction Plan 
(15 Percent Plan) and the Vehicle Inspection and Maintenance (I/M) 
program.
    EPA is approving the Kentucky 15 Percent Plan, the I/M program and 
the 1990 baseline emissions inventory. The adoption of a 15 Percent 
Plan, an I/M program, and a baseline emissions inventory are required 
by the 1990 Clean Air Act Amendments for the Northern Kentucky Counties 
of Boone, Campbell, and Kenton which are a part of the Cincinnati-
Hamilton moderate nonattainment area for the one-hour ozone National 
Ambient Air Quality Standard (NAAQS). In addition, in this document, 
EPA is approving the revisions to the Kentucky SIP for the 
implementation of the rule regarding Stage II control at gasoline 
dispensing facilities and revisions to the existing open burning rule 
which provide a portion of the VOC emission reductions included in the 
15 Percent Plan.

DATES: This direct final rule is effective on February 8, 1999 without 
further notice, unless EPA receives adverse comments by January 7, 
1999. 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.


[[Page 67587]]


ADDRESSES: All comments should be addressed to Randy Terry at the 
Environmental Protection Agency, Region 4, Air Pesticides and Toxics 
Management Division, 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-102-106-9903. 
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 Pesticides & Toxics 
Management Division, 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: Randy Terry at 404/562-9032, or Karla 
McCorkle at 404/562-9043. For additional information concerning the 
Inspection/Maintenance Program contact Dale Aspy at 404/562-9041.

SUPPLEMENTARY INFORMATION: On November 15, 1990, the President signed 
into law the Clean Air Act Amendments of 1990. The Clean Air Act as 
amended in 1990 (CAA) includes new requirements for the improvement of 
air quality in nonattainment areas for the ozone NAAQS. Under section 
181(a) of the CAA, nonattainment areas were categorized by the severity 
of the area's ozone problem, and progressively more stringent control 
measures were required for each category of higher ozone 
concentrations. The EPA, in response to requirements of the CAA, 
designated the Cincinnati area as a moderate interstate ozone 
nonattainment area. This designation includes the Northern Kentucky 
Counties of Boone, Campbell, and Kenton and the Ohio Counties of 
Hamilton, Warren, Butler, and Clermont. The basis for classifying an 
area in a specific category was the ambient air quality data obtained 
in the three year period 1987-1989. The CAA requires states to submit 
revisions to the SIP that include a plan for reducing emissions of VOCs 
by 15 percent from the 1990 Adjusted Base Year Emissions Inventory. The 
15 Percent Plan was required by the CAA to be effective for the 1996 
ozone season (April 1 through October 30). The CAA delineates in 
section 182 the SIP requirements for ozone nonattainment areas based on 
their classifications.
    Kentucky submitted a plan in November 1993, to achieve the 15 
percent emission reduction and subsequently revised and resubmitted the 
plan in March 1994. By the end of the 1994 ozone season, air quality 
monitoring data for the entire Cincinnati area showed attainment of the 
NAAQS for ozone and both Ohio and Kentucky requested redesignation of 
the respective portions of the area to attainment. On February 22, 
1995, EPA Region 4 responded to an inquiry from Kentucky, and stated 
that if an area had reached attainment without the implementation of 
the emission reduction programs outlined in the proposed 15 percent 
emission reduction program, then those programs need not be implemented 
unless necessary to offset growth of emissions in future years. On June 
29, 1995, in a letter signed by the Secretary of the KNREPC, the 
Commonwealth requested that EPA take no further action on Kentucky's 
proposed 15 Percent Plan for Northern Kentucky. A subsequent violation 
of the NAAQS for ozone in 1995 in the nonattainment area prompted the 
EPA to deny Kentucky's request to redesignate the area to attainment, 
thereby making the 15 Percent Plan again an applicable requirement for 
the area. On September 11, 1998, the KNREPC submitted a revision to the 
Kentucky SIP for reducing the emissions of VOCs by 15 percent in the 
Northern Kentucky portion of the Cincinnati-Hamilton area.
    The CAA also included limitations on the credibility of certain 
types of reductions. Specifically, a state cannot take credit for 
reductions achieved by Federal Motor Vehicle Control Program (FMVCP) 
measures promulgated prior to 1990, or for reductions resulting from 
requirements to lower the Reid Vapor Pressure (RVP) of gasoline 
promulgated prior to 1990 or required under section 211(h) of the CAA. 
Furthermore, the CAA does not allow credit for corrections to motor 
vehicle I/M Programs or Reasonably Available Control Technology (RACT) 
rules as these programs were required prior to 1990.

1990 Baseline Emissions Inventory

    In this action, the EPA is approving the 1990 baseline emissions 
inventory for the Northern Kentucky portion of the Cincinnati-Hamilton 
ozone nonattainment area. This inventory satisfies the requirements of 
section 182(a)(1) of the CAA. Detailed information on the emissions 
calculations can be obtained at the Regional Office address above. The 
following table is a summary of the baseline emissions inventory.

              Cincinnati 1990 Baseline Emissions Inventory
                               (Tons/day)
------------------------------------------------------------------------
                                                       1990     Percent
                                                    emissions   of total
                  Source category                      (tons      VOC
                                                     per day)  emissions
------------------------------------------------------------------------
Point Sources.....................................       3.90       5.57
Area Sources......................................      13.20      18.86
Mobile Sources....................................      17.54      25.06
Non-Highway Mobile sources........................       8.60      12.29
Biogenic Emissions................................      26.75      38.22
                                                   ---------------------
    Total.........................................      69.99      100.0
------------------------------------------------------------------------

    The adjusted base year inventory requires exclusion of emission 
reductions that would occur by 1996 as a result of the FMVCP and the 
RVP promulgated prior to 1990. The following table is a summary of the 
adjusted base year inventory.

               Cincinnati 1990 Adjusted Baseline Inventory
                               (Tons/day)
------------------------------------------------------------------------
                                                    1990 base     1990
                                                       year     adjusted
                  Source category                   emissions  emissions
                                                      (TPD)      (TPD)
------------------------------------------------------------------------
Point Sources.....................................       3.90        3.9
Area Sources......................................      13.20       12.6
Mobile Sources....................................      17.54       13.9
Non-Highway Mobile sources........................       8.60        8.6
    Total.........................................      43.24       39.0
------------------------------------------------------------------------

1990 Rate-of-Progress Inventory

    The Rate-of-Progress Inventory is comprised of the anthropogenic 
stationary (point and area) and mobile sources in the nonattainment 
area with all biogenic emissions removed from the baseline inventory. 
The following table is a summary of the Rate-of-Progress baseline 
inventory.

[[Page 67588]]



                Cincinnati 1990 Rate-of-Progress Baseline
                               (Tons/day)
------------------------------------------------------------------------
                                                       1990     Percent
                                                    emissions   of total
                  Source category                      (tons      VOC
                                                     per day)  emissions
------------------------------------------------------------------------
Point Sources.....................................       3.90        9.0
Area Sources......................................      13.20       30.5
Mobile Sources....................................      17.54       40.6
Non-Highway Mobile sources........................       8.60       19.8
                                                   ---------------------
    Total.........................................      43.24      100.0
------------------------------------------------------------------------

15 Percent Plan

    The Commonwealth of Kentucky submitted a 15 Percent Plan for the 
Northern Kentucky portion of the nonattainment area on September 11, 
1998. This submittal is required in section 182(b)(2) in order to 
demonstrate reasonable further progress toward attainment of the NAAQS 
for ozone. The CAA required moderate ozone nonattainment areas to 
submit a plan by November 15, 1993, and to attain the ozone NAAQS by 
1999. In order to demonstrate progress, the area must achieve actual 
VOC emission reductions of at least 15 percent from the baseline and 
account for growth during the first six years after enactment of the 
CAA. The 15 percent reduction must be based on a decrease from the 1990 
baseline emissions, excluding emissions from other reductions programs 
and emission sources outside the nonattainment area.

Creditable 15% Reduction

    The adjusted base year inventory of 39.0 tons/day is multiplied by 
0.15 to calculate the creditable 15 percent reduction in tons/day. 
Kentucky needs a reduction of 5.85 tons/day to obtain the creditable 15 
percent reduction.

Total Expected Reductions by 1999

    The total expected reductions by 1999 include the required 15 
percent (5.85 tons/day), the reductions from FMCVP and RVP (3.65 tons/
day), and the reductions from the I/M program (0.55 tons/day). Kentucky 
expects to have a total of 10.05 tons/day of reductions by 1999.

Target Level Emissions for 1999

    To calculate the 1999 target emissions level, the total expected 
reductions (10.05 tons/day) are subtracted from the 1990 Rate-of-
Progress baseline inventory (43.24 tons/day) for the Cincinnati 
nonattainment area. The resulting 1999 target level emissions are 33.19 
tons/day.

Reductions Needed by 1999 to Achieve 15 Percent Emission Reduction 
Accounting for Growth

    The reductions needed to achieve 15 percent net growth are 
determined by subtracting the target level emissions (33.19 tons/day) 
from the 1999 estimated emissions (41.53 tons/day) giving a total of 
8.34 tons/day in additional reductions needed.

Reductions Required by 1999

    In order to meet the target level required for 1999, Kentucky must 
reduce VOC emissions by an additional 8.34 tons/day. The 1990 Rate-of-
Progress Baseline Inventory is the base inventory from which the 15 
percent reduction on existing sources and the reduction from growth by 
1999 must be calculated to meet requirements of the CAA.
    The following is a summary of the reductions Kentucky will obtain 
to meet this requirement and the projected emissions for 1999. The 
projected emissions for 1999 have been calculated by applying the 
control measures discussed below to the 1999 estimated emissions. More 
detailed information can be found in the Technical Support Document 
(TSD) located at the Regional EPA address listed above.

             Anticipated Emissions After Plan Implementation
------------------------------------------------------------------------
                                       1999     Anticipated
         Source category            projected    emissions       Tons
                                    emissions    after plan    reduced
------------------------------------------------------------------------
Point Sources....................         3.28         3.09         0.19
Area Sources.....................        13.62        11.13         2.49
Mobile Sources...................        15.25         9.94         5.31
Non-Highway Mobile Sources.......         9.38         9.17         0.21
                                  --------------------------------------
    Total........................        41.53        33.33         8.20
------------------------------------------------------------------------

    The 1999 Target Level Emissions are 33.19 tons/day. The 1999 
Projected Emissions after plan implementation are 33.33 tons/day, which 
provides a 15 percent emission reduction.

Control Strategies

Point Source Control Measures

Point Source Rule Effectiveness Improvements
    Kentucky documented that creditable reductions of VOC emissions 
have occurred since 1990 due to facilities that improved technology and 
ceased operation. Additionally, the Cabinet implemented a program to 
increase the rule effectiveness of emission controls at facilities 
within this region from the default 80 to 95 percent. This program 
increased frequency of inspections at point source facilities to 
improve the existing emission controls. The increased inspections are 
expected to account for a 0.19 tons/day reduction from point sources. 
The projected inventory for 1999 shows emissions of 3.28 tons/day. 
Documentation of these projected emission reductions are included in 
the Technical Support Document (TSD).

Area Source Control Measures

Stage I Vapor Control--Increased Rule Effectiveness

    Kentucky implemented a program to increase the rule effectiveness 
of the Stage I gasoline vapor control program. This program increased 
the frequency of inspections at gasoline facilities to guarantee that 
State I vapor controls work properly. The program is projected to 
increase the rule effectiveness of Stage I controls from the default 80 
to 95 percent, and create an emissions reduction of 0.57 tons/day. 
Documentation of how the projected emission reductions were calculated 
is included in the TSD.

Architectural Coatings, Traffic Paints, Auto Body Refinishing, and 
Commercial/Consumer Products

    The EPA has determined that implemented or forthcoming federal 
guidance or regulation will reduce the amount of VOC emissions from 
Architectural and Industrial Maintenance Coatings, Auto Body 
Refinishing, and Commercial Consumer

[[Page 67589]]

Products. Credit for these reductions can be utilized by state and 
local agencies in developing plans to achieve the 15 percent VOC 
emission reduction. The amount of reduction which can be assumed in the 
plan is 20 percent for application of architectural coatings, 27 
percent from auto body refinishing, and 20 percent from Consumer 
Commercial Products. The emission reduction from these area source 
programs will result in 1.59 tons/day reduction. The guidance and 
equations used in these reductions calculations are included in the 
TSD.

Open Burning

    On February 3, 1998, the KNREPC, submitted revisions to rule 401 
KAR 63:005 Open burning for adoption into the Kentucky SIP.
    Section 1-2--The order of Section 1 Applicability and Section 2 
Definitions was changed to Section 1 Definitions and Section 2 
Applicability.
    Section 1--A reference to 401 KAR 63:001 for terms not defined in 
this section was added.
    Section 1(3)--The definition of ``Open burning'' was amended for 
clarity to include the burning of any matter without an approved burn 
chamber with a stack or chimney and approved control devices as open 
burning.
    Section 1(4)--The definition of ``Priority I Region'' was added for 
region classification according to Priority I in 401 KAR 50:020 
Appendix A.
    Section 2--A statement was added that applies to all open burning 
that is not subject to another regulation in 401 KAR Chapters 50 and 
65.
    Section 3--Various word structure changes were made to add clarity.
    Section 4--The revised restrictions for the three Northern Kentucky 
counties exceed those that apply to the remainder of the Commonwealth, 
and will be in effect from May through September on an annual basis. 
Previously allowed activities which these amendments will prohibit 
during the specified time period include:
     Fires set for cooking of food for human consumption,
     Fires set for prevention of fire hazard, including 
disposal of dangerous materials if there is no safe alternative,
     Fires set for instruction and training in the methods of 
fire fighting,
     Fires set for recognized agricultural, silvicultural, 
range, and wildlife management,
     Fires set to dispose of accidental spills and the disposal 
of absorbent material used in their removal, and
     Fires set for recreational and ceremonial purposes.
    The restriction of burning activities in ozone nonattainment areas 
and ozone maintenance areas during the peak ozone season will result in 
a reduction of volatile organic compound emissions. The emission 
reduction credit taken for these rule modifications was 0.90 tons per 
day. Emissions calculations for this reduction are included in the TSD.

Mobile Sources

Inspection/Maintenance (I/M) Program

Background
    The CAA requires states to make changes to improve existing I/M 
programs or to implement new ones for certain nonattainment areas. 
Section 182(b)(4) of the CAA requires moderate ozone nonattainment 
areas to develop and implement a basic I/M program. Additionally, 
section 182(a)(2)(B) of the CAA directed EPA to publish updated 
guidance for state I/M programs, taking into consideration findings of 
the Administrator's audits and investigations of these programs. EPA 
promulgated I/M regulations on November 5, 1992 (57 FR 52950, codified 
at 40 Code of Federal Regulations (CFR) 51.350-51.373).
    The I/M regulation establishes minimum performance standards for I/
M programs as well as requirements for the following: network type and 
program evaluation; adequate tools and resources; test frequency and 
convenience; vehicle coverage; test procedures and standards; test 
equipment; quality control; waivers and compliance via diagnostic 
inspection; motorist compliance enforcement; motorist compliance 
enforcement program oversight; quality assurance; enforcement against 
contractors, stations and inspectors; data collection; data analysis 
and reporting; inspector training and licensing or certification; 
public information and consumer protection; improving repair 
effectiveness; compliance with recall notices; on-road testing; SIP 
revisions; and implementation deadlines. The performance standard for 
basic I/M programs remains the same as it has been since initial I/M 
policy was established in 1978, pursuant to the 1977 amendments to the 
CAA.
    On September 11, 1998, the Commonwealth of Kentucky submitted to 
EPA a basic I/M program for incorporation into the SIP. The program 
meets the requirements of EPA's rule for a basic I/M program. The basic 
components of the Kentucky I/M program are listed below.
     Idle test for all vehicles.
     Anti-tampering/anti-misfueling checks on all 1975 and 
newer vehicles.
     Registration denial for vehicles that do not comply with 
program requirements.
     Training program for mechanics servicing vehicles in the 
area.
     Pressure check on 1981 and newer vehicles.
     Opacity check for diesel vehicles.
    The full description of the Kentucky I/M program can be found in 
rule 401 KAR 65:010 of the Kentucky SIP and in Appendix K of the 
Kentucky 15 percent plan submittal.

Reformulated Gasoline (RFG)

    Kentucky requested to opt-in to the federal RFG program in moderate 
ozone nonattainment areas within Kentucky beginning in 1995. This 
program included the three northern Kentucky Counties of Boone, 
Campbell, and Kenton. In addition, Kentucky has opted to remain in the 
federal RFG program for this area as it goes into phase II in 2000, 
which will provide additional VOC reductions.

Stage II

    On February 3, 1998, Kentucky, submitted rule 401 KAR 59:174 Stage 
II Controls at Gasoline Dispensing Facilities for adoption into the 
Kentucky SIP.
    The provisions in this regulation meet EPA requirements for 
gasoline dispensing facilities that install and operate vapor recovery 
systems that capture gasoline vapors displaced from motor vehicle 
gasoline tanks during refueling (i.e., Stage II). The reductions due to 
the installation of Stage II are needed for the required 15 percent 
reduction in dispensing facilities, which are located in an area that 
is designated moderate, serious, or severe nonattainment for the ozone 
NAAQS, and which have an average monthly gasoline throughput of greater 
than 10,000 gallons, install Stage II vapor recovery systems. 
Independent small business marketers with an average monthly throughput 
of 50,000 gallons or less and all other gasoline dispensing facilities 
with an average monthly throughput of 10,000 gallons or less have been 
exempted from this regulation. These facilities are required to 
maintain current records covering a two year period which demonstrate 
that the applicable throughput limits have not been exceeded.
    The CAA specifies that Stage II regulations must apply to any 
facility that dispenses more than 10,000 gallons of gasoline per month 
or, in the case of an independent small business marketer (ISBM), any 
facility that dispenses more than 50,000 gallons of gasoline per

[[Page 67590]]

month. Section 324 of the CAA defines an ISBM.
    Consistent with EPA's guidance, the regulation requires that Stage 
II systems be tested and certified to meet a 95 percent emission 
reduction efficiency by using a system approved by the California Air 
Resources Board (CARB). The regulation requires sources to verify 
proper installation and function of Stage II equipment through use of a 
liquid blockage test and a leak test prior to system operation and 
every five years or upon major modification of a facility (i.e., 75 
percent or more equipment change). Kentucky has also established 
procedures for enforcing violations of the Stage II requirements.
    Kentucky expects a 5.31 ton/day reduction from these mobile source 
controls.

Non-Highway Mobile Sources

    Kentucky is using a method developed by EPA to use RFG in non-
highway mobile sources. The method was described in an August 18, 1993 
memo from Phil Lorang, Director of Emission Planning and Strategies 
Division, of EPA's Office of Mobile Sources. This method provides 
approximately one-half the on-highway mobile source credit for non-
highway mobile sources. Using this method, a 0.21 ton per day reduction 
is calculated for non-highway mobile sources. Further emission 
reductions will be realized after Phase II RFG is implemented.
    EPA is approving Kentucky's 15 percent plan and the underlying 
regulations (Stage II and Open Burning), the I/M Program, and the 1990 
baseline emissions inventory because they are consistent with EPA 
guidance and the requirements set forth in the CAA.

Final Action

    The EPA is approving the aforementioned changes to the SIP. The EPA 
is publishing this rule without prior proposal because the Agency views 
this as a noncontroversial submittal 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 February 8, 1999 
without further notice unless the Agency receives adverse comments by 
January 7, 1999.
    If the EPA receives such comments, then EPA will publish a notice 
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. Parties 
interested in commenting should do so at this time. If no such comments 
are received, the public is advised that this rule will be effective on 
February 8, 1999 and no further action will be taken on the proposed 
rule.

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 12875

    Under Executive Order 12875, EPA may not issue a regulation that is 
not required by statute and that creates a mandate upon a State, local 
or tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments, or EPA consults with those governments. If EPA complies by 
consulting, Executive Order 12875 requires EPA to provide to the Office 
of Management and Budget a description of the extent of EPA's prior 
consultation with representatives of affected State, local and tribal 
governments, the nature of their concerns, copies of any written 
communications from the governments, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 12875 
requires EPA to develop an effective process permitting elected 
officials and other representatives of State, local and tribal 
governments ``to provide meaningful and timely input in the development 
of regulatory proposals containing significant unfunded mandates.''
    Today's rule does not create a mandate on State, local or tribal 
governments. The rule does not impose any enforceable duties on these 
entities. Accordingly, the requirements of section 1(a) of Executive 
Order 12875 do not apply to this rule.

C. Executive Order 13084

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of Indian tribal governments ``to provide meaningful 
and timely input in the development of regulatory policies on matters 
that significantly or uniquely affect their communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. Accordingly, the requirements 
of section 3(b) of Executive Order 13084 do not apply to this rule.

D. Executive Order 13045

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is 
determined to be ``economically significant'' as defined under E.O. 
12866, and (2) concerns an environmental health or safety risk that EPA 
has reason to believe may have a disproportionate effect on children. 
If the regulatory action meets both criteria, the Agency must evaluate 
the environmental health or safety effects of the planned rule on 
children, and explain why the planned regulation is preferable to other 
potentially effective and reasonably feasible alternatives considered 
by the Agency.
    This rule is not subject to E.O. 13045 because it does not involve 
decisions intended to mitigate environmental health or safety risks.

E. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions. This final rule will not have a significant impact on a 
substantial number of small entities because SIP approvals under 
section 110 and subchapter I, part D of the Clean Air Act do not create 
any new

[[Page 67591]]

requirements but simply approve requirements that the State is already 
imposing. Therefore, because the Federal SIP approval does not create 
any new requirements, I certify that this action will not have a 
significant economic impact on a substantial number of small entities. 
Moreover, due to the nature of the Federal-State relationship under the 
Clean Air Act, preparation of 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).

F. 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.

G. 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.

H. 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).

I. 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 February 8, 1999. 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: November 13, 1998.
Michael V. Peyton,
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)(92) to read 
as follows:


Sec. 52.920  Identification of plan.

* * * * *
    (c) * * *
    (92) Revisions to the Kentucky State Implementation Plan submitted 
by the Natural Resources and Environmental Protection Cabinet on 
February 3, 1998. The regulations being revised are 401 KAR 59:174 
Stage II control at gasoline dispensing facilities, 401 KAR 63:005 Open 
burning, and 401 KAR 65:010 Vehicle emission control programs rules. 
Adoption of the Kentucky 15 Percent Plan, the I/M program and the 1990 
baseline emissions inventory.
    (i) Incorporation by reference.
    (A) Division of Air Quality regulations 401 KAR 59:174 Stage II 
control at gasoline dispensing facilities, 401 KAR 63:005 Open burning, 
and 401 KAR 65:010 Vehicle emission control programs rules are 
effective January 12, 1998.
    (B) Tables showing the Cincinnati 1990 Baseline Emissions 
Inventory, 1990 Adjusted Baseline Inventory, and 1990 Rate of Progress 
Inventory, Summary of Biogenic Emissions and Anticipated Emissions 
after Plan Implementation which are effective September 11, 1998.
    (ii) Other material. None.
[FR Doc. 98-32423 Filed 12-7-98; 8:45 am]
BILLING CODE 6560-50-P