[Federal Register Volume 67, Number 158 (Thursday, August 15, 2002)]
[Rules and Regulations]
[Pages 53312-53314]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-20747]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[KY 125-200233(a); FRL-7259-7]


Approval and Promulgation of Implementation Plans for Kentucky: 
Regulatory Limit on Potential To Emit

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency is conditionally approving 
a revision to the State Implementation Plan (SIP) of the Commonwealth 
of Kentucky incorporating Kentucky rule 401 KAR 50:080. This rule 
affects sources whose actual emissions are 50 percent or less of the 
major source threshold whereas the sources' potential to emit (PTE) 
exceeds the major source threshold.

DATES: This direct final rule is effective October 15, 2002, without 
further notice, unless EPA receives adverse comment by September 16, 
2002. 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: Michele Notarianni, Air 
Planning Branch, U.S. Environmental Protection Agency Region 4, 61 
Forsyth Street, SW., Atlanta, Georgia 30303-8960. (404/562-9031 (phone) 
or [email protected] (e-mail)).
    Copies of the Commonwealth's submittal 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. (Michele Notarianni, 
404/562-9031, [email protected])
    Commonwealth of Kentucky, Division for Air Quality, 803 Schenkel 
Lane, Frankfort, Kentucky 40601-1403. (502/573-3382)

FOR FURTHER INFORMATION CONTACT: Michele Notarianni at address listed 
above or 404-562-9031 (phone) or [email protected] (e-mail).

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Today's Action
II. Background
III. Future Rule Clarifications
IV. Effects of This Action
V. Final Action
VI. Administrative Requirements

I. Today's Action

    The EPA is conditionally approving into the Kentucky SIP rule 401 
KAR 52:080, ``Regulatory Limit on Potential to Emit'', based upon the 
Agency's understanding of Kentucky's interpretation of this regulation 
and Kentucky's commitment to clarify sections 2(3) and 4 of the rule 
within one year. In a letter to EPA dated April 18, 2002, the 
Commonwealth outlined its interpretation of the rule and provided a 
promulgation schedule for

[[Page 53313]]

clarifying these two sections by March 1, 2003.

II. Background

    Kentucky adopted 401 KAR 50:031 (later amended and recodified to 
401 KAR 50:080) in February 1996. This regulation was developed under 
EPA's title V Transition Policy, which allows states to defer the 
permitting of sources whose actual emissions are 50 percent or less of 
the major source threshold. EPA received a letter on July 10, 2001, 
from Kentucky requesting approval of 401 KAR 52:080 (and four other 
rules) into the Kentucky SIP.
    EPA is conditionally approving this revision to 401 KAR 52:080 
based on the Agency's understanding of the Commonwealth of Kentucky's 
interpretation of this regulation, documented in a letter dated April 
18, 2002. In this letter, the Commonwealth noted Section 1(a) does not 
allow a source currently covered under this regulation to increase its 
actual emissions above 50 percent of a major source threshold under 
title V of the Clean Air Act by increasing its throughput or hours of 
operation. If a covered source increased its actual emissions above 50 
percent, the source would be immediately subject to title V permitting 
requirements and violating 401 KAR 52:080 and the applicable permit 
regulation (i.e., either 401 KAR 51:020 or 401 KAR 52:030).

III. Future Rule Clarifications

    The Commonwealth also committed in the April 18, 2002, letter to 
clarify language in sections 2(3) and (4) during a regulatory amendment 
according to a projected promulgation schedule included with the 
letter.
    Clarifications to section 2(3) will address the criteria for a 
source to receive a notice of violation (NOV) for noncompliance with 
the rule. Because issuance of NOVs is discretionary, a source's actual 
emissions could potentially exceed 50 percent of a major source 
threshold, but the source may not necessarily receive an NOV if the 
exceedance is considered temporary and not repeatable. Thus, the 
requirement to submit an application for a title V permit may not be 
triggered. This issue will be addressed.
    Clarifications to section 2(3) will also address an issue of 
enforceability. The Commonwealth has a law prohibiting it from being 
more stringent than federal rules. If a source receives a NOV for 
actual emissions exceeding 50 percent of a major source threshold, 
section 2(3) sets a six month limit for a source to submit a title V 
application, rather than 12 months as required under part 70.
    Sections 2(3) and 4 will be clarified to address reporting 
exceedances of the 50 percent limit. The rule currently does not 
require such exceedances to be reported. While section 11 requires 
covered sources to annually certify and submit an emissions inventory 
report, a source could potentially violate the rule within the first 
month after the required annual certification report is submitted, 
allowing 11 months to pass without the permitting authority knowing the 
source violated the rule. Further, clarifications to section 4 will 
address the possibility of a source increasing its actual emissions 
over the 50 percent threshold without a modification or reconstruction. 
A source may, for example, increase emissions through better ways to 
estimate emissions or conduct a stack test. However, no requirement 
exists to report an increase over the 50 percent threshold. The 
reporting requirement in section 4(2) to notify the permitting 
authority and submit a permit application is triggered only if a source 
is making a modification or reconstruction.

IV. Effects of This Action

    Approximately 60-70 sources in Kentucky meet the requirements of 
and are complying with 401 KAR 52:080. These sources will not have to 
apply for and receive a title V permit should this rule be approved 
into the Kentucky SIP. Section 1(a) of 401 KAR 52:080 states that the 
rule applies only to sources ``whose actual emissions during any 
consecutive twelve (12) month period of operation after January 1, 
1996, are less than fifty (50) percent of the major source threshold 
for Title V.''

V. Final Action

    The EPA is conditionally approving Kentucky regulation 401 KAR 
50:080 into the Kentucky SIP. If clarifications to the rule are not 
completed one year from the effective date of this notice, the EPA will 
publish a disapproval notice for this regulation.
    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 adverse 
comments be filed. This rule will be effective October 15, 2002, 
without further notice unless the Agency receives adverse comments by 
September 16, 2002.
    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 October 15, 2002, and no 
further action will be taken on the proposed rule. Please note that if 
we receive adverse comment on an amendment, paragraph, or section of 
this rule and if that provision may be severed from the remainder of 
the rule, we may adopt as final those provisions of the rule that are 
not the subject of an adverse comment.

VI. 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 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

[[Page 53314]]

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. 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).
    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 October 15, 2002. 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, 
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

J.I. Palmer, Jr.,
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. A new Sec. 52.919 is added to read as follows:


Sec. 52.919  Identification of plan-conditional approval.

    EPA is conditionally approving Rule 401 KAR 50:080, ``Regulatory 
Limit on Potential to Emit,'' effective January 15, 2001, into the 
Kentucky SIP contingent on the Commonwealth clarifying language in 
sections 2(3) and (4) according to a projected promulgation schedule 
committed to in a letter dated April 18, 2002, from the Commonwealth of 
Kentucky to EPA Region 4.

[FR Doc. 02-20747 Filed 8-14-02; 8:45 am]
BILLING CODE 6560-50-P