[Federal Register Volume 67, Number 35 (Thursday, February 21, 2002)]
[Rules and Regulations]
[Pages 7973-7976]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-3766]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[KY-JEFF-T5-2002-01a; FRL-7143-9]


Clean Air Act Final Approval of Operating Permit Program 
Revisions; Jefferson County (KY)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking final action to approve revisions to the 
operating permit program of the Jefferson County Air Pollution Control 
District in Kentucky. The County's operating permit program was 
submitted in response to the directive in the 1990 Clean Air Act (CAA) 
Amendments that states develop, and submit to EPA, programs for issuing 
operating permits to all major stationary sources and to certain other 
sources within the states' jurisdiction. EPA granted full approval to 
Jefferson County's operating permit program on March 22, 1996. The 
County has revised its program since it received full approval and this 
action approves those revisions.

DATES: This direct final rule is effective on April 22, 2002 without 
further notice unless EPA receives adverse comments in writing by March 
25, 2002. If adverse comment is received, EPA will publish a timely 
withdrawal of this direct final rule in the Federal Register and inform 
the public that the rule will not take effect. The public comments will 
be addressed in a subsequent final rule based on the proposed rule 
published in this Federal Register.

ADDRESSES: Written comments on this action should be addressed to Cesar 
Zapata, Air Permits Section, Air Planning Branch, EPA, 61 Forsyth 
Street, SW, Atlanta, Georgia 30303-8960. Copies of the County's 
submittals and other supporting documentation relevant to this action 
are available for inspection during normal business hours at EPA, Air 
Planning Branch, 61 Forsyth Street, SW, Atlanta, Georgia 30303-8960.

FOR FURTHER INFORMATION CONTACT: Cesar Zapata, EPA, Region 4, at (404) 
562-9139 or [email protected]/.

SUPPLEMENTARY INFORMATION: This section provides additional information 
by addressing the following questions:

    What is the operating permit program?
    What is being addressed in this document?
    What are the program changes that EPA is approving?
    What is involved in this final action?

What Is the Operating Permit Program?

    The CAA Amendments of 1990 required all state and local permitting 
authorities to develop operating permit programs that met certain 
federal criteria. In implementing the title V operating permit 
programs, the

[[Page 7974]]

permitting authorities require certain sources of air pollution to 
obtain permits that contain all applicable requirements under the CAA. 
The focus of the operating permit program is to improve enforcement by 
issuing each source a permit that consolidates all of the applicable 
CAA requirements into a federally enforceable document. By 
consolidating all of the applicable requirements for a facility, the 
source, the public, and the permitting authorities can more easily 
determine what CAA requirements apply and how compliance with those 
requirements is determined.
    Sources required to obtain an operating permit under this program 
include ``major'' sources of air pollution and certain other sources 
specified in the CAA or in EPA's implementing regulations. For example, 
all sources regulated under the acid rain program, regardless of size, 
must obtain operating permits. Examples of major sources include those 
that have the potential to emit 100 tons per year or more of volatile 
organic compounds (VOCs), carbon monoxide, lead, sulfur dioxide, 
nitrogen oxides (NOX), or particulate matter 
(PM10); those that emit 10 tons per year of any single 
hazardous air pollutant (specifically listed under the CAA); or those 
that emit 25 tons per year or more of a combination of hazardous air 
pollutants (HAPs). In areas that are not meeting the National Ambient 
Air Quality Standards for ozone, carbon monoxide, or particulate 
matter, major sources are defined by the gravity of the nonattainment 
classification. For example, in ozone nonattainment areas classified as 
serious, major sources include those with the potential of emitting 50 
tons per year or more of VOCs or NOX.

What Is Being Addressed in This Document?

    Jefferson County has submitted six revisions to its approved title 
V program since EPA granted full approval on March 22, 1996 (61 FR 
11738). These submittals are dated February 20, 1998, January 11, 1999, 
September 30, 1999, March 17, 2000, March 21, 2001, and October 23, 
2001. This document describes and approves the changes that Jefferson 
County has made to its approved program.

What Are the Program Changes That EPA Is Approving?

    Jefferson County conducted rulemaking in July 1996 and March 1997 
to change its fee provisions in Regulation 2.08. The County's title V 
program received full approval based on use of the ``presumptive 
minimum'' fee amount described in 40 CFR 70.9(b)(2)(i). Because 
Regulation 2.08 specified the emission fee rate, the County needed to 
revise it every year based on EPA's annual update to the ``presumptive 
minimum'' fee amount. Accordingly, Jefferson County conducted 
rulemaking in July 1996 to increase the fee rate. However, instead of 
changing the fee rate each year thereafter, the County conducted 
rulemaking in March 1997 to replace the rate language in Regulation 
2.08 with generic Consumer Price Index language. The local-effective 
rule changes were submitted to EPA on January 11, 1999. The County also 
submitted a fee program update on September 30, 1999, demonstrating 
that its title V program was adequately funded by operating permit fee 
revenue.
    In September 1996, Jefferson County conducted rulemaking to revise 
the permit application due dates contained in Regulation 2.16. The 
deadline for submitting the last two-thirds of permit applications was 
changed to coincide with one year from the effective date of EPA's full 
approval of the County's title V program. The local-effective rule 
change was submitted to EPA on January 11, 1999.
    In November 1997 and March 2000, Jefferson County conducted 
rulemaking to update its acid rain program. In November 1997, the 
County incorporated by reference 40 CFR part 76, entitled ``Acid Rain 
Nitrogen Oxides Emission Reduction Program,'' and submitted the local-
effective rule change to EPA on February 20, 1998. In March 2000, the 
County incorporated by reference the following federal acid rain rules: 
40 CFR part 73, entitled ``Sulfur Dioxide Allowance System''; part 74, 
entitled ``Sulfur Dioxide Opt-Ins''; part 75, entitled ``Continuous 
Emission Monitoring''; part 77, entitled ``Excess Emissions'; and part 
78, entitled ``Appeal Procedures for Acid Rain Program.'' The local-
effective rule changes were submitted to EPA on March 17, 2000.
    On January 10, 2000, EPA notified Jefferson County of a deficiency 
in its insignificant activities provisions that came to light as a 
result of the decision by the Ninth Circuit Court of Appeals in Western 
States Petroleum Association
(WSPA) v. EPA, No. 95-70034 (June 17, 1996); EPA had inadvertently 
approved the County's title V program without identifying the exemption 
of insignificant activities from permit content requirements as a 
program deficiency. In the Federal Register notice granting final 
interim approval to Alaska's title V operating permit program (61 FR 
64466, December 5, 1996), EPA acknowledged that its approval of the 
insignificant activity provisions in the Jefferson County program may 
have been inconsistent with the WSPA decision. Further review revealed 
this to be true, which prompted EPA to send the January 2000 letter 
notifying the County that a Notice of Deficiency would be published in 
the Federal Register if the deficiency was not corrected. The January 
2000 letter also identified two other deficiencies in Jefferson 
County's insignificant activity provisions: (1) Regulation 2.16 implied 
that the County could add activities to its list without EPA review and 
approval, and (2) the list of insignificant activities did not require 
emission caps to ensure that potential emissions were indeed 
insignificant.
    Jefferson County addressed the deficiencies in its insignificant 
activities provisions by revising the definition of ``Insignificant 
activity'' in Regulation 2.16 to eliminate exemptions from applicable 
requirements and to impose potential emission thresholds of five tons 
per year for regulated pollutants and 1000 pounds per year for HAPs. 
The County also revised its applicability provisions in Regulation 2.16 
to remove the exemption of insignificant activities from permit 
requirements. Additional changes in the County's insignificant 
activities provisions include: (1) Revised permit application 
requirements that allow for generic grouping and treatment of 
insignificant activities consistent with EPA's guidance memoranda 
entitled ``White Paper Streamlined Development of Part 70 Permit 
Applications'' (July 10, 1995) and ``White Paper Number 2 for Improved 
Implementation of the Part 70 Operating Permits Program'' (March 5, 
1996); (2) revised permit content requirements that streamline 
monitoring, record keeping, and reporting requirements for 
insignificant activities consistent with EPA's White Paper 2; and (3) 
the requirement for sources to include current lists of insignificant 
activities in their annual compliance certifications. Jefferson County 
completed the rulemaking in December 2000 and submitted the local-
effective rule changes to EPA on March 21, 2001.

What Is Involved in This Final Action?

    The Jefferson County Air Pollution Control District made six 
submittals of revisions to its approved title V program after it 
received full approval on March 22, 1996, and EPA is taking final 
action by this notice to approve program changes in those submittals. 
EPA is publishing this action without prior proposal because the Agency 
views this

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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 grant full approval should adverse comments be filed. 
This action will be effective April 22, 2002 unless the Agency receives 
adverse comments by March 25, 2002.
    If EPA receives such comments, then it will withdraw the final rule 
and inform 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. 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 22, 2002 and no further action will be taken 
on the proposed rule.

Administrative Requirements

A. Request for Public Comments

    EPA requests comments on the program revisions discussed in this 
action. Copies of the Jefferson County submittals and other supporting 
documentation used in developing this notice are contained in the EPA 
docket file numbered KY-JEFF-2002-01 that is maintained at the EPA 
Region 4 office. The docket is an organized and complete file of all 
the information submitted to, or otherwise considered by, EPA in the 
development of this proposed full approval. The primary purposes of the 
docket are: (1) To allow interested parties a means to identify and 
locate documents so that they can effectively participate in the 
approval process, and (2) to serve as the record in case of judicial 
review. The docket files are available for public inspection at the 
location listed under the ADDRESSES section of this document. EPA will 
consider any comments received in writing by March 25, 2002.

B. Executive Order 12866

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

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 is not 
an economically significant regulatory action as defined in Executive 
Order 12866, and it does not involve decisions intended to mitigate 
environmental health or safety risks.

D. Executive Order 13132

    This rule does not have Federalism implications because it 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, ``Federalism'' (64 FR 43255, 
August 10, 1999). This rule merely approves existing requirements under 
state law, and does not alter the relationship or the distribution of 
power and responsibilities between the state and the federal government 
established in the CAA.

E. Executive Order 13175

    This rule 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, 
``Consultation and Coordination with Indian Tribal Governments'' (65 FR 
67249, November 9, 2000).

F. Executive Order 13211

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001), because it is not a 
significant regulatory action under Executive Order 12866.

G. Regulatory Flexibility Act

    The Regulatory Flexibility Act 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 rule will not have a significant impact on a substantial 
number of small entities because operating permit program approvals 
under section 502 of the CAA do not create any new requirements but 
simply approve requirements that the state is already imposing. 
Therefore, because this 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.

H. Unfunded Mandates Reform Act

    Under sections 202 of the Unfunded Mandates Reform Act of 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 
the 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 proposed 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.

I. 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.
    In reviewing operating permit programs, EPA's role is to approve 
state choices, provided that they meet the

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criteria of the CAA and EPA's regulations codified at 40 CFR part 70. 
In this context, in the absence of a prior existing requirement for the 
state to use VCS, EPA has no authority to disapprove an operating 
permit program for failure to use VCS. It would thus be inconsistent 
with applicable law for EPA, when it reviews an operating permit 
program, to use VCS in place of an operating permit program that 
otherwise satisfies the provisions of the CAA. Thus, the requirements 
of section 12(d) of NTTAA do not apply.

J. Paperwork Reduction Act

    This action will not impose any collection of information subject 
to the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et 
seq., other than those previously approved and assigned OMB control 
number 2060-0243. For additional information concerning these 
requirements, see 40 CFR part 70. An agency may not conduct or sponsor, 
and a person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.

K. 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. 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. 
804(2).

List of Subjects in 40 CFR Part 70

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Operating permits, 
Reporting and recordkeeping requirements.

    Dated: January 31, 2002.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.

    For reasons set out in the preamble, title 40, chapter I, of the 
Code of Federal Regulations is amended as follows:

PART 70--[AMENDED]

    1. The authority citation for part 70 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.


    2. Appendix A to part 70 is amended by revising paragraph (b) in 
the entry for Kentucky to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating 
Permits Programs

* * * * *
Kentucky
* * * * *
    (b)(1) Air Pollution Control District of Jefferson County: 
submitted on January 31, 1994, and supplemented on March 9, 1994, June 
15, 1994, July 15, 1994, July 14, 1995, August 9, 1995, August 10, 
1995, and February 16, 1996; full approval effective on April 22, 1996.
    (2) Revisions submitted on February 20, 1998, January 11, 1999, 
September 30, 1999, March 17, 2000, March 21, 2001, and October 23, 
2001; full approval of revisions effective on April 22, 2002.
* * * * *

[FR Doc. 02-3766 Filed 2-20-02; 8:45 am]
BILLING CODE 6560-50-P