[Federal Register Volume 70, Number 163 (Wednesday, August 24, 2005)]
[Rules and Regulations]
[Pages 49493-49496]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-16804]



[[Page 49493]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R04-OAR-2003-KY-0001-200410(a); FRL-7958-8]


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 EPA is approving a revision to the State Implementation 
Plan (SIP) of the Commonwealth of Kentucky which incorporates Kentucky 
rule 401 KAR 52:080 into the Kentucky SIP. The Commonwealth submitted 
the revision on October 31, 2003. This rule affects sources whose 
actual emissions are less than 50 percent of the major source threshold 
whereas the sources' potential to emit (PTE) exceeds the major source 
threshold. The EPA is also notifying the public that the Agency's 
conditional approval of Kentucky rule 401 KAR 52:080, as submitted on 
March 15, 2001, and published on August 15, 2002, is disapproved as of 
October 15, 2003.

DATES: This direct final rule is effective October 24, 2005 without 
further notice, unless EPA receives adverse comment by September 23, 
2005. 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: Submit your comments, identified by Regional Material in 
EDocket (RME) ID No. R04-OAR-2003-KY-0001, by one of the following 
methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    2. Agency Web site: http://docket.epa.gov/rmepub/ RME, EPA's 
electronic public docket and comment system, is EPA's preferred method 
for receiving comments. Once in the system, select ``quick search,'' 
then key in the appropriate RME Docket identification number. Follow 
the on-line instructions for submitting comments.
    3. E-mail: [email protected].
    4. Fax: (404) 562-9019.
    5. Mail: ``R04-OAR-2003-KY-0001,'' Regulatory Development Section, 
Air Planning Branch, Air, Pesticides and Toxics Management Division, 
U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., 
Atlanta, Georgia 30303-8960.
    6. Hand Delivery or Courier. Deliver your comments to: Michele 
Notarianni, Regulatory Development Section, Air Planning Branch, Air, 
Pesticides and Toxics Management Division 12th floor, U.S. 
Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., 
Atlanta, Georgia 30303-8960. Such deliveries are only accepted during 
the Regional Office's normal hours of operation. The Regional Office's 
official hours of business are Monday through Friday, 8:30 to 4:30, 
excluding federal holidays.
    Instructions: Direct your comments to RME ID No. R04-OAR-2003-KY-
0001. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available online at 
http://docket.epa.gov/rmepub/, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through RME, regulations.gov, 
or e-mail. The EPA RME Web site and the federal regulations.gov website 
are ``anonymous access'' systems, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through RME or regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
RME index at http://docket.epa.gov/rmepub/. Although listed in the 
index, some information is not publicly available, i.e., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, is not placed on the Internet 
and will be publicly available only in hard copy form. Publicly 
available docket materials are available either electronically in RME 
or in hard copy at the Regulatory Development Section, Air Planning 
Branch, Air, Pesticides and Toxics Management Division, U.S. 
Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., 
Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you 
contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section to schedule your inspection. The Regional Office's official 
hours of business are Monday through Friday, 8:30 to 4:30, excluding 
federal holidays.

FOR FURTHER INFORMATION CONTACT: Michele Notarianni, Air Planning 
Branch, Air, Pesticides and Toxics Management Division, U.S. 
Environmental Protection Agency Region 4, 61 Forsyth Street, SW., 
Atlanta, Georgia 30303-8960. Phone: (404) 562-9031. E-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Today's Action
II. Background
III. Rule Clarifications
IV. Effects of This Action
V. Final Action
VI. Statutory and Executive Order Reviews

I. Today's Action

    The EPA is approving into the Kentucky SIP rule 401 KAR 52:080, 
``Regulatory Limit on Potential to Emit,'' state effective October 31, 
2003. The EPA is also notifying the public that the Agency's 
conditional approval of Kentucky rule 401 KAR 52:080, as submitted on 
March 15, 2001, and published on August 15, 2002, (67 FR 53312), is 
disapproved as of October 15, 2003. EPA is also correcting references 
to the SIP submittal date of 401 KAR 52:080 published August 15, 2002, 
(67 FR 53312) from July 10, 2001, to the correct date of March 15, 
2001.

II. Background

    On March 15, 2001, the Commonwealth of Kentucky submitted five 
rules, including rule 401 KAR 52:080, ``Regulatory Limit on Potential 
to Emit,'' state effective January 15, 2001, to EPA for incorporation 
into the Kentucky SIP. Rule 401 KAR 52:080 was developed in accordance 
with a January 25, 1995, EPA memorandum, ``Options for Limiting the 
Potential to Emit (PTE) of a Stationary Source Under Section 112 and 
Title V of the Clean Air Act (Act).'' (This January 25, 1995, document 
is included in the docket for this action.) This memorandum outlines 
various approaches to establishing

[[Page 49494]]

federally-enforceable mechanisms to limit emissions from sources that 
desire to limit potential emissions to below major source levels.
    EPA conditionally approved rule 401 KAR 52:080 based on the 
Agency's understanding of the rule, documented in a letter dated April 
18, 2002, from the Commonwealth, and contingent upon Kentucky making 
four clarifications to the rule no later than one year from the 
effective date of the conditional approval action, which was October 
15, 2003. See 67 FR 53312, August 15, 2002. (This April 18, 2002, 
document is included in the docket for today's action.) In a letter 
dated October 2, 2003, Kentucky notified EPA that the Commonwealth may 
not be able to submit a revised rule by October 15, 2003, due to 
possible delays from a statutory revision to Kentucky's promulgation 
process. Because Kentucky was unable to submit a revised rule 401 KAR 
52:080 by October 15, 2003, the conditional approval automatically 
reverted to a disapproval. Although not required, EPA committed in its 
conditional approval action to publishing a disapproval action should 
this occur.
    On October 31, 2003, Kentucky submitted a revised rule 401 KAR 
52:080, state effective October 31, 2003, for incorporation into the 
Kentucky SIP. This rule addresses EPA's four requested clarifications 
and makes other nonsubstantive changes to the January 15, 2001, 
version. The April 18, 2002, letter from Kentucky stating the 
Commonwealth's interpretation of the rule's applicability still applies 
with the exception of the following references: Section 1(a) of the 
January 15, 2001, state effective referenced rule is renumbered as 
Section 2(1) in the October 31, 2003, state effective version and the 
letter's reference to 401 KAR 51:020 should read, ``401 KAR 52:020.'' 
EPA is also clarifying in this document that Kentucky intended in its 
letter for the phrases, ``above 50%'' and ``exceed 50%,'' to mean equal 
to or above 50 percent. The Commonwealth explains in the letter that 
Section 2(1) does not allow a source currently covered under this rule 
to increase its actual emissions to 50 percent or above (as clarified 
previously) 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 to 50 percent or above (as clarified 
previously), the source would be immediately subject to title V 
permitting requirements and would be in violation of 401 KAR 52:080 and 
the applicable permit regulation (i.e., either 401 KAR 52:020 or 401 
KAR 52:030). (See also 67 FR 53312, August 15, 2002.)

III. Rule Clarifications

    The EPA is approving rule 401 KAR 52:080 into the Kentucky SIP in 
its entirety based upon the Commonwealth of Kentucky's interpretation 
of Section 2(1) of the rule (formerly Section 1(a)) as documented in a 
letter from the Kentucky Division for Air Quality dated April 18, 2002, 
and based upon the language of section 3(2)(a).
    Kentucky addressed EPA's requested rule clarifications as described 
below. The clarifications to subsection (3) of section 3 (formerly 
numbered as section 2(3)) change the actions which trigger 
noncompliance requirements for a covered source. The previous rule that 
EPA conditionally approved identified receipt of a notice of violation 
(NOV) for exceeding the major source threshold as the action which 
triggered noncompliance with the rule. However, issuance of NOVs is 
discretionary and thus, a source could potentially operate at 50 
percent or above a major source threshold without receiving an NOV to 
trigger the rule's requirement to submit an application for a title V 
permit. The clarifications specify any of four actions which could 
trigger noncompliance with the rule, one of which involves the failure 
to restrict actual emissions during each consecutive 12 month period of 
operation after January 1, 1996, to less than 50 percent of the major 
source thresholds for the title V program. The other actions include 
failure to comply with notification, recordkeeping, and reporting 
requirements; failure to allow authorized cabinet representatives to 
enter the premises as specified; and inability to demonstrate 
compliance with applicable requirements at the cabinet's request.
    Subsection (3)(a) of section 3 is modified to address an issue of 
enforceability to reflect the Commonwealth's law prohibiting its rules 
from being more stringent than federal rules. If a source receives an 
NOV for actual emissions equal to or greater than 50 percent of a major 
source threshold, section 3(3) sets a 12-month limit, formerly six 
months, for a source to submit a title V application as required under 
subsection (a)(1)(i) of section 70.5, ``Permit Applications,'' of 40 
CFR part 70, ``State Operating Permit Programs.''
    Section 5 (formerly numbered as section 4) is clarified to address 
reporting exceedances of the 50 percent limit. Section 5(2) requires a 
source to contact the Kentucky Division for Air Quality if the source 
plans to make a change that will cause its actual emissions during any 
consecutive 12-month period of operation to be 50 percent or more of a 
major source threshold for the title V program. In addition, the source 
must submit an application for either a title V permit under 401 KAR 
52:020 or a conditional major permit under 401 KAR 52:030. Section 5 
requirements previously applied only to modifications or 
reconstructions; now they must be met if a covered source makes any 
change, including those that will result in exceedance of 50 percent or 
more of a major source threshold. Clarifications to section 3(3) 
described earlier in this document ensure that each incidence of 
noncompliance with this rule is considered a separate violation until a 
title V or conditional major permit is issued to the source.

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 do not have to 
apply for and receive a title V permit as long as they meet the 
requirements of this regulation. Additionally, the regulation will 
apply to similar sources constructed after December 14, 1995, and those 
that may construct in the future, that meet the applicability 
requirements of the regulation.

V. Final Action

    The EPA is approving into the Kentucky SIP regulation 401 KAR 
52:080, which is state effective October 31, 2003, and which was 
submitted on October 31, 2003, because it is consistent with the 
requirements of the Clean Air Act and EPA policy. The EPA is also 
notifying the public that the Agency's conditional approval of Kentucky 
rule 401 KAR 52:080, as submitted on March 15, 2001, and as published 
on August 15, 2002, (67 FR 53312), is disapproved as of October 15, 
2003. EPA is also correcting references to the SIP submittal date of 
401 KAR 52:080 published August 15, 2002, (67 FR 53312) from July 10, 
2001, to the correct date of March 15, 2001.
    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 24, 2005 
without further notice unless the

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Agency receives adverse comments by September 23, 2005.
    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 24, 2005. 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. Statutory and Executive Order Reviews

    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 (Pub. L. 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. 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 24, 2005. 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.

    Dated: August 12, 2005.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.

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40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart S--Kentucky


Sec.  52.919  [Removed and reserved]

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2. Section 52.919 is removed and reserved.

0
3. In Sec.  52.920, in paragraph (c), Table 1 is amended:
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a. By adding, in numerical order, a new entry for ``Chapter 52 Permits, 
Registrations, and Prohibitory Rules,'' and
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b. By adding a new entry under Chapter 52 for 401 KAR 52:080, 
``Regulatory limit on potential to emit,'' to read as follows:


Sec.  52.920  Identification of plan.

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    (c) * * *

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                                                       Table 1.--EPA-Approved Kentucky Regulations
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                                                                        State
          State citation                    Title/subject          effective date                  EPA approval date                     Explanations
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                                                                      * * * * * * *
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                                                Chapter 52 Permits, Registrations, and Prohibitory Rules
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401 KAR 52:080...................  Regulatory limit on potential         10/31/03  8/24/05.
                                    to emit.                                       [Insert citation of publication].................
 
                                                                      * * * * * * *
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[FR Doc. 05-16804 Filed 8-23-05; 8:45 am]
BILLING CODE 6560-50-P