[Federal Register Volume 66, Number 205 (Tuesday, October 23, 2001)]
[Rules and Regulations]
[Pages 53686-53690]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-25895]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[KY-75-1; KY-97-1-200109, FRL-7082-8]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: On September 13, 1999, EPA published a direct final rule 
approving and an accompanying notice of proposed rulemaking proposing 
to approve the 15 percent Rate-of-Progress Plan (15 percent plan) for 
the Louisville moderate 1-hour ozone nonattainment area which was 
submitted on November 12, 1993, and amended on April 5, 1994, and June 
30, 1997. As stated in the Federal Register document, if adverse or 
critical comments were received by October 13, 1999, the effective date 
would be delayed and timely notice would be published in the Federal 
Register. Due to receipt of adverse comments within the comment period, 
EPA withdrew the direct final rule on November 3, 1999, in order to 
address all public comments received.
    This action addresses the adverse comments related to the 
approvability of the emission reduction measures and grants final 
approval to the rule revisions and the 1990 Base Line Emissions 
Inventory. No comments were received relating to the 1990 Base Line 
Emissions inventory.

EFFECTIVE DATE: This rule will be effective November 23, 2001.

ADDRESSES: Copies of the State submittal(s) are available at the 
following addresses for inspection during normal business hours:

Environmental Protection Agency, Region 4, Air Planning Branch, 61 
Forsyth Street, SW, Atlanta, Georgia 30303-8960.
Department for Environmental Protection, Natural Resources and 
Environmental Protection Cabinet, Division of Air Quality, 803 Schenkel 
Lane, Frankfort, Kentucky 40601.
Air Pollution Control District of Jefferson County, 850 Barrett Avenue, 
Suite 205, Louisville, Kentucky 40204.

FOR FURTHER INFORMATION CONTACT: Scott Martin of the EPA Region 4 staff 
at (404) 562-9036. [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On September 13, 1999, EPA published a direct final rule (64 FR 
49404) approving and an accompanying notice of proposed rulemaking (64 
FR 49425) proposing to approve the 15 percent plan for the Louisville 
moderate 1-hour ozone nonattainment area which was submitted on 
November 12, 1993, and amended on April 5, 1994, and June 30, 1997. 
This submittal was required by Section 182(b)(1)(A) of the Clean Air 
Act, as amended in 1990 (CAA) in order to demonstrate reasonable 
further progress (RFP) in attaining the National Ambient Air Quality 
Standard (NAAQS) for ozone. As stated in the Federal Register document, 
if adverse or critical comments were received by October 13, 1999, the 
effective date would be delayed and timely notice would be published in 
the Federal Register. Due to receipt of adverse comments within the 
comment period, EPA withdrew the direct final rule on November 3, 1999, 
(64 FR 59644) in order to address all public comments received in a 
subsequent final rule.
    In a separate action, EPA is finalizing it's proposal (66 FR 27483) 
to determine that the Louisville moderate ozone nonattainment area has 
attained the public health-based 1-hour ozone NAAQS. The Louisville 
area includes the Kentucky Counties of Jefferson, Bullitt and Oldham 
and the Indiana Counties of Clark and Floyd. This determination is 
based on three years of complete, quality-assured, ambient air 
monitoring data for the 1998 to 2000 ozone seasons that demonstrate 
that the area has attained the ozone NAAQS. On the basis of this 
determination, EPA is also determining that State implementation plan 
(SIP) submissions for certain RFP and attainment demonstration 
requirements, along with certain other related requirements, of part D 
of title 1 of the CAA are no longer required for the Louisville area. 
All previously approved SIP revisions must continue to be implemented 
and enforced and are not affected by this action.
    EPA's final action on the determination of attainment eliminates 
the need for approval of the 15 percent plan and therefore no further 
action will be taken on the demonstration that this reduction was 
achieved. However, the control measures contained in the 15 percent 
plan have been implemented prior to attainment of the 1-hour ozone 
NAAQS. This action addresses comments related to the approvability of 
the control measures and grants final approval to the rule revisions 
and the 1990 Base Line Emissions Inventory, although no action is taken 
on the 15 percent demonstration itself since it is no longer required.

II. Analysis of State's Submittal

    The comment and response is summarized below:

Comment 1

Regulation 1.18: Rule Effectiveness
    Jefferson County is claiming 6.37 tons per day in volatile organic 
compound (VOC) reductions from its ``Rule Effectiveness'' program. This 
program requires sources to develop and

[[Page 53687]]

implement a ``rule effectiveness improvement plan.'' There is no 
minimum level of effort or improvement required under the rule, no 
standard for judging whether a particular plan is adequate or 
inadequate, and no requirement that the County actually review and 
approve or disapprove the plan. Nor does the County explain how it 
developed the 6.37 ton per day estimate of VOC reductions from this 
program. Further, although the rule requires plans to be implemented by 
November 15, 1996, there is no evidence in the record that this in fact 
occurred.
    Under these circumstances, the County's Rule Effectiveness program 
is neither approvable nor creditable. Because the rule does not require 
any specified level of emission reduction, and the content of each rule 
effectiveness plan is determined solely by the source, there is no 
assurance of any emission reductions at all. The Clean Air Act (the 
Act) and EPA guidance do not allow approval or crediting of undefined, 
hypothetical SIP measures. EPA can approve and credit only clearly 
defined, real, permanent, and enforceable measures. 57 FR 13498, 13509 
(1992). In fact, EPA guidance explicitly requires that any benefits 
claimed from rule effectiveness improvement must be documented at a 
minimum by conducting a post-implementation source specific emissions 
study. EPA, Guidance for Growth Factors, Projections, and Control 
Strategies for the 15 Percent Rate-of Progress Plans, at 45 (EPA-452/R-
93-002, March 1993) (hereinafter, ``15 percent guidance''). Only where 
such studies have documented additional emission reductions due to rule 
effectiveness measures can EPA grant credit for such measures toward 
the required 15 percent rate of progress. For all the foregoing 
reasons, the County's rule effectiveness program cannot be credited 
with any emission reductions.

Response

    Regulation 1.18, Rule Effectiveness, states that all sources 
subject to this regulation shall complete and return, by the date 
specified, a questionnaire supplied by the District that will determine 
the current procedures that impact rule effectiveness evaluation, 
including but not limited to: employee training, maintenance 
procedures, monitoring procedures, and record keeping methods. Sources 
were required to submit a detailed rule effectiveness implementation 
plan to the District. These plans were implemented as expeditiously as 
practicable but no later than November 15, 1996, as required by the 
District's rule. The District has submitted the rule effectiveness 
plans to EPA, and they are available for inspection at the Region 4 
offices.
    The above referenced EPA guidance states that rule effectiveness 
improvements must reflect real emissions reductions resulting from 
specific implementation program improvements. However, the guidance 
does not require a specified level of emission reductions be 
established in rule effectiveness improvement plans. Additionally, as 
stated above, the final action on the determination of attainment for 
the Louisville area eliminates the need for the approval of the 15 
percent plan and the specific level of emission reduction credits. 
Therefore, EPA is granting approval to Regulation 1.18.

Comment 2

Regulation 6.43: VOC Emission Reduction Requirements
    The County claims 3.56 tons per day in reductions from regulation 
6.43. During the County's process for adopting this rule, the 
Commonwealth raised questions about the legality of adopting source 
specific emission limits by rule. The County responded by offering 
assurances that it would obtain written commitments from each source 
not to challenge the legality of the rule on this basis. The record 
does not indicate whether these written commitments were ever obtained 
from all affected sources. Given the legal doubts raised by the 
Commonwealth, EPA cannot credit emission reductions from any source 
that has not signed such a commitment.

Response

    According to the December 13, 1996, Air Pollution Control District 
Comment and Response Document relating to Regulation 6.43, the 
following comment was made by Mr. John Hornback, Director, Kentucky 
Division for Air Quality: ``The regulation, as proposed, specifically 
identifies each company by name and sets the required emission, 
equipment, and operational requirements for that company. The 
regulation states that the listed companies have voluntarily agreed to 
the requirements of the regulation. This regulation, as written, would 
probably constitute special legislation in violation of Sections 59 and 
60 of the Commonwealth's Constitution. The Division recommends that the 
regulation be rewritten and promulgated without the specific listing of 
company names and their individual emission reduction limits.'' The 
following response was given: ``The District disagrees. The District 
does not believe that this regulation constitutes special legislation. 
The category of stationary sources to which this regulation applies is 
all of the stationary sources who volunteered to be regulated pursuant 
to this regulation. Each stationary source is treated equally in that 
each is required to meet the requirements for which they have 
voluntarily agreed. The District will ask the Air Pollution Control 
Board (Board) to adopt the proposed changes.''
    The revisions were adopted by the Board on December 18, 1996. Based 
on responses from the District, and the Board's action, EPA believes 
that the District has the authority to adopt and implement these 
regulations without need for additional commitments from regulated 
entities and that the regulations are therefore creditable as SIP 
measures. Additionally, as stated above, the final action on the 
determination of attainment for the Louisville area will eliminate the 
need for the approval of the 15 percent plan and the specific level of 
emission reduction credits. Therefore, EPA is granting approval to 
Regulation 6.43.

Comment 3

Regulation 6.43: VOC Emission Reduction Requirements
    Because the emission limits set by rule 6.43 can be met by 
emissions trading, the reductions claimed from the rule 6.43 are 
dependent on the adequacy of the County's emissions trading program. 
Accordingly, we question how EPA can propose to credit all of the 
claimed reductions from the rule when the County's trading program has 
not been approved by EPA, and when the Agency has specifically stated 
that the program does not meet EPA guidance 64 FR 49406.

Response

    The June 30, 1997, SIP submittal contains three different versions 
of Regulation 6.43 adopted September 21, 1994, December 18, 1996, and 
May 21, 1997. The September 1994 and December 1996 versions contained 
section 5: Compliance Plan and Schedule. This section did allow the 
affected sources to meet the emission reduction requirements by 
utilizing the emissions trading program in Regulation 2.12: Emission 
Trading. However, the May 1997 version deletes section 5: Compliance 
Plan and Schedule. Therefore, sources cannot meet the emission 
reduction requirements through an emissions trading program. Thus, EPA 
concludes that this regulation is approvable.

[[Page 53688]]

Comment 4

Audit Privilege and Immunity Law
    EPA seeks to discount the impact of Kentucky's audit privilege and 
immunity (API) law by asserting that it does not impact on federal 
enforcement. In order to be approvable, however, the plan must be 
enforceable by the state as well as the federal government. 42 U.S.C. 
7410(a)(2)(A), (C), (E). Among other things, the state must adopt 
enforceable emission limits, adopt a program for enforcement of the 
plan, and provide assurances that it will have adequate authority to 
carry out the plan (and is not prohibited by any provision of state law 
from doing so). An API law that hampers state and local enforcement is 
flatly contrary to these requirements of the Act. EPA has previously 
identified Kentucky's law as an impediment to approval of state 
programs under the CAA, and must address this matter squarely prior to 
final approval of the submitted plan. Further, EPA cannot credit any 
emission reductions claimed under the plan for sources that can evade 
enforcement action via the state API law.

Response

    On December 6, 2000, EPA issued a notice of deficiency (NOD) to 
Kentucky (65 FR 76230). This NOD was based upon EPA's finding that the 
Commonwealth's audit privilege and immunity law, KRS 224.01-040, unduly 
restricted Kentucky's ability to adequately administer and enforce the 
criminal enforcement, civil penalty and public access provisions of its 
title V program, which was previously granted interim approval status. 
In response, the Kentucky General Assembly amended KRS 224.01-040 to 
address these deficiencies. This amendment was signed by the Governor 
on March 19, 2001 and became effective on June 16, 2001. EPA reviewed 
the amendments and concluded that, as of the effective date, all issues 
identified in the NOD were resolved.

Approval of Supporting Regulations

    EPA is granting final approval to the following regulations:

Regulation 1.18 Rule Effectiveness, adopted September 21, 1994.
Regulation 6.40 Standards of Performance for Gasoline Transfer to Motor 
Vehicles (Stage II Vapor Recovery and Control), amended August 9, 1993.
Regulation 6.43 Volatile Organic Compound Reduction Requirements, 
adopted May 21, 1997.
Regulation 6.44 Standards of Performance for Existing Commercial Motor 
Vehicles and Mobile Equipment Refinishing Operations, adopted February 
2, 1994.
Regulation 6.45 Standards of Performance for Existing Solid Waste 
Landfills, adopted February 2, 1994.
Regulation 7.79 Standards of Performance for New Commercial Motor 
Vehicle and Mobile Equipment Refinishing Operations, adopted February 
2, 1994.
Regulation 8.03 Commuter Vehicle Testing Requirements, amended 
September 15, 1993.

Please see the Federal Register document published on September 13, 
1999, (64 FR 49404) for further discussion of the rule revisions.

Withdrawn Regulations

    Regulation 1.16 Standards for Volatile Organic Compound Content of 
Architectural and Industrial Maintenance Coatings and Modification of 
Alternate Fuels Vehicle Conversion Program was withdrawn on February 
25, 2000.
    Regulation 2.12 Emissions Trading (including Banking and Bubble 
Rules) was withdrawn on May 10, 2001.

1990 Base Line Emissions Inventory

    In this action, the EPA is approving the 1990 base line emissions 
inventory for the Louisville area. Detailed information on the 
emissions calculations can be obtained at the Region 4 office. The 
following table is a summary of the base line emissions inventory.

              Louisville 1990 Base Line Emissions Inventory
                               [tons/day]
------------------------------------------------------------------------
          Source type                 VOC           NOX           CO
------------------------------------------------------------------------
Point..........................         83.75        147.87        10.14
Area...........................         38.69          4.5         28.04
Mobile.........................         92.81         40.49       541.22
Nonroad........................         12.68         16.58        54.61
Biogenic.......................         20.9         N/A             N/A
    Total......................        248.83        209.44       634.01
------------------------------------------------------------------------

    The EPA is approving this inventory as satisfying the requirements 
of section 182(a)(1) of the CAA.

III. Final Action

    EPA is granting final approval of the Louisville 1990 Base Line 
Emissions Inventory and the aforementioned rule revisions because they 
are consistent with the requirements of the CAA and EPA policy.
    Also included in this submittal were revisions to Regulation 1.02 
Definitions; Regulation 1.04 Performance Tests; Regulation 1.06 Source 
Self Monitoring and Reporting; Regulation 1.07 Emissions During 
Shutdowns, Malfunctions, and Emergencies; Regulation 1.08 
Administrative Procedures; Regulation 2.02 Air Pollution Regulation; 
Regulation 2.03 Permit Requirements--Non-Title V Operating Permits and 
Construction/Demolition Permits; Regulation 2.07 Public Notification; 
Regulation 2.08 Emission Fees, Permit Fees, and Permit Renewal 
Procedures; Regulation 5.14 Hazardous Air Pollutants; and Regulation 
6.42 VOC and nitrogen oxide reasonably available control technology ( 
NOX RACT). Action on these regulations will be taken in a 
separate notice.

IV. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule

[[Page 53689]]

will not have a significant economic impact on a substantial number of 
small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.). Because this rule approves pre-existing requirements under state 
law and does not impose any additional enforceable duty beyond that 
required by state law, it does not contain any unfunded mandate or 
significantly or uniquely affect small governments, as described in the 
Unfunded Mandates Reform Act of 1995 (Public Law 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does 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 (64 
FR 43255, August 10, 1999). This action merely approves a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    The Congressional Review Act, 5 U.S.C. section 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. A major rule 
cannot take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
section 804(2).
    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 December 24, 2001. 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, Intergovernmental relations, Lead, Nitrogen dioxide, 
Ozone, Particulate matter, Reporting and recordkeeping requirements, 
Sulfur oxides.

    Dated: October 3, 2001.
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 for 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 revising the entry for 8.03 and by 
adding new entries in numerical order to the last table in paragraph 
(c) to read as follows:


Sec. 52.920  Identification of plan.

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    (c) * * *

                             EPA-Approved Jefferson County Regulations for Kentucky
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                                                                   EPA                                 District
              Reg                        Title/subject           approval   Federal Register notice   effective
                                                                   date                                  date
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                                    Reg 1  General Administrative Procedures
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                  *                  *                  *                  *                  *
1.18...........................  Rule Effectiveness..........     11/23/01  66 FR 53689............      9/21/94
 
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                        Reg 6  Standards of Performance for Existing Affected Facilities
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                  *                  *                  *                  *                  *
6.43...........................  Volatile Organic Compound        11/23/01  66 FR 53689............      5/21/97
                                  Reduction Requirements.
 
                  *                  *                  *                  *                  *
6.45...........................  Standards of Performance for     11/23/01  66 FR 53689............       2/2/94
                                  Existing Solid Waste
                                  Landfills.
 

[[Page 53690]]

 
                  *                  *                  *                  *                  *
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                           Reg 7  Standards of Performance for New Affected Facilities
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                  *                  *                  *                  *                  *
7.79...........................  Standards of Performance for     11/23/01  66 FR 53690............       2/2/94
                                  New Commercial Motor
                                  Vehicles and Mobile
                                  Equipment Refinishing
                                  Operations.
 
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                                      Reg 8  Mobile Source Emission Control
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                  *                  *                  *                  *                  *
  Requirements 8.03............  Commuter Vehicle Testing....     11/23/01  66 FR 53690............       2/2/94
 
                  *                  *                  *                  *                  *
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[FR Doc. 01-25895 Filed 10-22-01; 8:45 am]
BILLING CODE 6560-50-P