[Federal Register Volume 65, Number 48 (Friday, March 10, 2000)]
[Rules and Regulations]
[Pages 12948-12950]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-5931]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[KY-105-9946a; FRL-6545-5]


Approval and Promulgation of Implementation Plans, Commonwealth 
of Kentucky: Approval of Revisions to the Kentucky State Implementation 
Plan

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) submitted through the Kentucky Natural 
Resources and Environmental Protection Cabinet (KNREPC) on April 29, 
1998. This revision adds a new regulation 401 KAR 50:032, ``Prohibitory 
rule for hot mix asphalt plants,'' to establish an enforceable 
production limit for asphalt plants in Kentucky to limit their 
potential to emit (PTE).

DATES: This direct final rule is effective May 9, 2000 without further 
notice, unless EPA receives adverse comment by April 10, 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 Joey LeVasseur at the 
EPA, Region 4 Air Planning Branch, 61 Forsyth Street, SW, Atlanta, 
Georgia 30303.
    Copies of the state submittal are available at the following 
addresses for inspection during normal business hours:

Environmental Protection Agency, Atlanta Federal Center, Region 4 Air 
Planning Branch, 61 Forsyth Street S.W., Atlanta, Georgia 30303-3104.
Natural Resources and Environmental Protection Cabinet, 803 Schenkel 
Lane, Frankfort, Kentucky 40601.

FOR FURTHER INFORMATION CONTACT: Joey LeVasseur at 404/562-9035 (E-
mail: [email protected]).

SUPPLEMENTARY INFORMATION: The Commonwealth of Kentucky through the 
KNREPC submitted revisions to the Kentucky SIP on April 29, 1998. These 
revisions add new Kentucky regulations 401 KAR 50:032, ``Prohibitory 
rule for hot mix asphalt plants,'' 60:750, ``Standards of performance 
for municipal solid waste landfills,'' and 61:036, ``Emission 
guidelines and compliance times for municipal solid waste landfills.'' 
However, since regulations 401 KAR 60:750 and 61:036 are not SIP-
related, Kentucky resubmitted these regulations on December 3, 1998, as 
required by section 111(d) of the Clean Air Act as amended in 1990 
(CAA), and EPA approved these regulations on April 20, 1999, (64 FR 
19290). Therefore, today EPA is only taking action on regulation 401 
KAR 50:032 as a revision to the Kentucky SIP as described below.

401 KAR 50:032  Prohibitory Rule for Hot Mix Asphalt Plants

    This regulation applies to hot mix asphalt plants that without the 
operational limits of this regulation would have a PTE that would 
exceed one or more of the major source thresholds and require these 
plants to obtain a permit as required under part 70 of Title 40 of the 
Code of Federal Regulations (40 CFR part 70). Compliance with this 
regulation would only exempt these sources from the 40 CFR part 70 
requirement and would not exempt any source from any other applicable 
requirement. To be eligible for this exemption, sources must comply 
with maximum consecutive 12 month production and operation limits as 
well as fuel and recordkeeping requirements which are specific to the 
type of plant. These requirements are fully discussed in the submittal 
and the technical support document (TSD) at the Region 4 office listed 
in the addresses section of this notice.

Final Action

    EPA is approving the aforementioned changes to the SIP 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 May 9, 2000 without further notice unless the agency

[[Page 12949]]

receives relevant adverse comments by April 10, 2000.
    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 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 May 9, 2000 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 (E.O.) 12866, 
entitled ``Regulatory Planning and Review.''

B. Executive Order 13132

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces E.O. 
12612 (Federalism) and E.O. 12875 (Enhancing the Intergovernmental 
Partnership). E.O. 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 E.O. 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 E.O. 
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 E.O. 13132. Thus, the 
requirements of section 6 of the E.O. 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 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.

D. Executive Order 13084

    Under E.O. 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, E.O. 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 E.O. 13084 do not apply to this rule.

E. Regulatory Flexibility

    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 government 
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 CAA 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 CAA, preparation of a flexibility analysis would constitute Federal 
inquiry into the economic reasonableness of state action. The CAA 
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 
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

[[Page 12950]]

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 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).

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 CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by May 9, 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, Administrative practice and procedure, 
Air pollution control, Hydrocarbons, Incorporation by reference, 
Intergovernmental relations, Ozone, Reporting and recordkeeping 
requirements.

    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. In Sec. 52.920(c) the table is amended by adding the entry for 
401 KAR 50:032, under chapter 50 in numerical order to read as follows:


Sec. 52.920  Identification of plan.

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    (c) * * *

                                 EPA Approved Kentucky Regulations for Kentucky
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                                                        State effective                        Federal Register
           Regulation                Title/subject           date          EPA approval date        Notice
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                                  Chapter 50 General Administrative Procedures
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   *                *                 *                 *                *                 *                 *
401 KAR 50:032..................  Prohibitory rule    April 13, 1998....  March 10, 2000....  [Insert FR page
                                   for hot mix                                                 citation].
                                   asphalt plants.
 
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[FR Doc. 00-5931 Filed 3-9-00; 8:45 am]
BILLING CODE 6560-50-P