[Federal Register Volume 65, Number 31 (Tuesday, February 15, 2000)]
[Rules and Regulations]
[Pages 7437-7440]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-3207]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[KY-109-1-200007a; FRL-6533-2]


Approval and Promulgation of Implementation Plans-- State: 
Approval of Revisions to Kentucky State Implementation Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is approving a revision to the Jefferson County portion of 
the Kentucky State Implementation Plan (SIP) to allow the Air Pollution 
Control District of Jefferson County (APCDJC) to issue Federally 
enforceable district origin operating permits (FEDOOP). On November 10, 
1998, the APCDJC through the Kentucky Natural Resources and 
Environmental Protection Cabinet (KNREPC) submitted a SIP revision 
fulfilling the requirements necessary for the FEDOOP program to become 
federally enforceable.

DATES: This direct final rule is effective April 17, 2000 without 
further notice, unless EPA receives adverse comment by March 16, 2000. 
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: All comments should be addressed to Gregory Crawford at the 
U.S. Environmental Protection Agency, Region 4 Air Planning Branch, 61 
Forsyth Street, SW, Atlanta, Georgia 30303.
    Copies of the State submittal(s) are available at the following 
addresses for inspection during normal business hours:

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 30303-8960.
Commonwealth of Kentucky, Natural Resources and Environmental 
Protection Cabinet, 803 Schenkel Lane, Frankfort, Kentucky 40601.
Air Pollution Control District of Jefferson County, 850 Barret Avenue, 
Suite 205, Louisville, Kentucky 40204.

FOR FURTHER INFORMATION CONTACT: Gregory Crawford, Regulatory Planning 
Section, Air Planning Branch, Air, Pesticides and Toxics Management 
Division at 404/562-9046.

[[Page 7438]]


SUPPLEMENTARY INFORMATION:

I. Background

    On November 10, 1998, the APCDJC, through the KNREPC, submitted a 
SIP revision to make certain permits issued under the APCDJC existing 
minor source operating permit program Federally enforceable. The 
revision was added to comply with EPA requirements specified in the 
Federal Register notice entitled ``Requirements for the Preparation, 
Adoption, and Submittal of Implementation Plans; Approval and 
Promulgation of Implementation Plans'' (see 54 FR 27274, June 28, 
1989).
    EPA has always had and continues to have the authority to enforce 
state and local permits that are issued under permit programs approved 
into the SIP. However, EPA has not always recognized as valid certain 
state and local permits which purport to limit a source's potential to 
emit. The principle purpose for adopting this regulation is to give 
APCDJC a Federally recognized means of expeditiously restricting 
potential emissions such that sources can avoid major source permitting 
requirements. A key mechanism for such limitations is the use of the 
Federally enforceable state or local operating permits. The term 
``Federally enforceable,'' when used in the context of permits which 
limit potential to emit, means ``Federally recognized.'' The voluntary 
revision that is the subject of this action approves Regulation 2.17, 
Federally Enforceable District Origin Operating Permits, into the 
Jefferson County portion of the Kentucky SIP. This rule and the 
materials provided by the APCDJC satisfy the five criteria outlined in 
the June 28, 1989, Federal Register notice. Refer to section II of this 
notice for the analysis of each of the criteria.

II. Analysis of the Submittal

    Criterion 1. The county's operating permit program (i.e. the 
regulations or other administrative framework describing how such 
permits are issued) must be submitted to and approved by EPA as a SIP 
revision.
    On November 10, 1998, the APCDJC through the KNREPC submitted a SIP 
revision request to EPA consisting of revisions to Regulation 2.17, 
Federally Enforceable District Origin Operating Permits, amending the 
APCDJC existing stationary source requirements to include provisions to 
issue FEDOOP.
    Criterion 2. The SIP revision must impose a legal obligation that 
operating permit holders adhere to the terms and limitations of such 
permits (or subsequent revisions of the permit made in accordance with 
the approved operating permit program) and provide that permits which 
do not conform to the operating permit program requirements and the 
requirements of EPA's underlying regulations may be deemed not 
``Federally enforceable'' by EPA. Regulation 2.17, sections 3.1 and 3.2 
address this criterion and meet this requirement. The source shall 
comply with all terms and conditions in a FEDOOP, including subsequent 
revisions. All terms and conditions in a FEDOOP, including those 
requirements designed to limit a source's potential to emit, are 
enforceable by EPA.
    Criterion 3. The state operating permit program must require that 
all emission limitations, controls, and other requirements imposed by 
such permits will be at least as stringent as any applicable 
limitations and requirements contained in the SIP, or enforceable under 
the SIP, and that the program may not issue permits that waive, or make 
less stringent, any limitations or requirements contained in or issued 
pursuant to the SIP, or that are otherwise ``federally enforceable'' 
(e.g. standards established under sections 111 and 112 of the Clean Air 
Act (CAA)).
    Regulation 2.17, section 3.4 contains regulatory provisions which 
state that permits issued by the APCDJC will be at least as stringent 
as standards established pursuant to sections 111 and 112 of the CAA.
    Criterion 4. The limitations, controls, and requirements of the 
state's operating permits must be permanent, quantifiable, and 
otherwise enforceable as a practical matter. Regulation 2.17, section 
5.3 contains regulatory provisions which satisfy this criterion. The 
terms and conditions of all permits issued must be permanent, 
quantifiable, and otherwise enforceable as a practical matter.
    Criterion 5. The state operating permits must be issued subject to 
public participation. This means that the APCDJC agrees, as part of 
their program, to provide EPA and the public with timely notice of the 
proposal and issuance of such permits, and to provide EPA, on a timely 
basis, with a copy of each proposed ( or draft) and final permit 
intended to be ``Federally enforceable.'' This process must also 
provide for an opportunity for public comment on the permit 
applications prior to issuance of the final permits.
    Regulation 2.17, sections 6.1 and 8.1 meet this criterion. 
Jefferson County will provide EPA with notice of proposed issuance, 
renewal, or revision of a FEDOOP or, pursuant to section 8.5, 
administrative incorporation of a construction permit, at the time of 
public notice. Jefferson County will provide public notice of proposed 
issuance, renewal, or revision of a FEDOOP in the newspaper having the 
largest bona fide paid circulation in Jefferson County, Kentucky.

III. Final Action

    EPA is approving the aforementioned changes to the SIP because they 
are consistent with the Clean Air Act and EPA requirements. 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 adverse 
comments be filed. This rule will be effective April 17, 2000 without 
further notice unless the Agency receives adverse comments by March 15, 
2000.
    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. 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 April 17, 2000 and no 
further action will be taken on the proposed rule.
    Nothing in this action should be construed as making any 
determination or expressing any position regarding Kentucky's audit 
privilege and penalty immunity law Kentucky--``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.

[[Page 7439]]

IV. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.''

B. Executive Orders on Federalism

Executive Order 13132
    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612 (Federalism) and 12875 (Enhancing the 
Intergovernmental Partnership). Executive Order 13132 requires EPA to 
develop an accountable process to ensure ``meaningful and timely input 
by State and local officials in the development of regulatory policies 
that have federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that 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.'' Under Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law unless the 
Agency consults with State and local officials early in the process of 
developing the proposed regulation.
    This final rule will 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. 
Thus, the requirements of section 6 of the Executive Order do not apply 
to this rule.

C. 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 
Executive Order 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 Executive Order 13045 because it does 
not involve decisions intended to mitigate environmental health or 
safety risks.

D. Executive Order 13084

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly affects 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. If the mandate is 
unfunded, EPA must 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 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.

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 
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. 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 
annual 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 annual 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.

G. 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

[[Page 7440]]

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. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This rule is not a ``major'' rule as defined by 5 U.S.C. 
804(2).

H. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    The EPA believes that VCS are inapplicable to this action. Today's 
action does not require the public to perform activities conducive to 
the use of VCS.

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 April 17, 2000. 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, Carbon monoxide, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides.

    Dated: January 14, 2000.
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 52.939 is amended by adding paragraph (c)(95) to read as 
follows:


Sec. 52.939  Original identification of plan section.

* * * * *
    (c) * * *
    (95) Revisions to the Jefferson County portion of the Kentucky 
State Implementation Plan submitted by the Kentucky Natural Resources 
and Environmental Protection Cabinet on November 10, 1998. The 
regulation being added is Regulation 2.17, Federally Enforceable 
District Origin Operating Permits.
    (i) Incorporation by reference. Air Pollution Control District of 
Jefferson County Regulation 2.17, Federally Enforceable District Origin 
Operating Permits effective June 21, 1995.
    (ii) Other material. None.

[FR Doc. 00-3207 Filed 2-14-00; 8:45 am]
BILLING CODE 6560-50-P