[Federal Register Volume 71, Number 132 (Tuesday, July 11, 2006)]
[Rules and Regulations]
[Pages 38990-38993]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-6089]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2004-KY-0004-200610; FRL-8191-5]


Approval and Promulgation of Implementation Plans; Kentucky 
Prevention of Significant Deterioration and Nonattainment New Source 
Review

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to approve revisions to the 
Kentucky State Implementation Plan (SIP) submitted by the Commonwealth 
of Kentucky on September 2, 2004, and amended by request dated August 
23, 2005. The SIP revisions modify Kentucky's Prevention of Significant 
Deterioration (PSD) and Nonattainment New Source Review (NNSR) 
regulations in the SIP to address changes to the federal new source 
review (NSR) regulations, which were promulgated by EPA on December 31, 
2002 (67 FR 80186) and November 7, 2003 (68 FR 63021) (commonly 
referred to as the ``2002 NSR reform rules''). The September 2004 SIP 
revisions being approved today also include a rule setting a 
significance level of 100 tons per year (tpy) for ozone depleting 
substances.

EFFECTIVE DATE: This rule will be effective August 10, 2006.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2004-KY-0004. All documents in the 
docket are listed on the www.regulations.gov website. Although listed 
in the index, some information is not publicly available, i.e., 
Confidential Business Information 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 through www.regulations.gov 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

[[Page 38991]]

Office's official hours of business are Monday through Friday, 8:30 to 
4:30, excluding federal holidays.

FOR FURTHER INFORMATION CONTACT: For information regarding the Kentucky 
State Implementation Plan, contact Mr. Sean Lakeman, 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. Telephone number: 
(404) 562-9043; e-mail address: [email protected]. For information 
regarding New Source Review, contact Ms. Kelly Fortin, Air Permits 
Section, at the same address above. Telephone number: (404) 562-9117; 
e-mail address: [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What Action Is EPA Taking?
II. What is the Background for This Action?
III. Final Action
IV. Statutory and Executive Order Reviews

I. What Action Is EPA Taking?

    EPA is taking final action to approve revisions to the Kentucky SIP 
regarding Kentucky's new source review (NSR) program. On September 2, 
2004, the Commonwealth of Kentucky, through the Kentucky Department of 
Environmental Protection (KDEP), submitted revisions to the Kentucky 
SIP. The submittal was amended by KDEP in a letter dated August 23, 
2005. The submittal consists of changes to three regulations that are 
already part of the Kentucky SIP. The affected regulations are: 401 
Kentucky Administrative Regulations (KAR) 51:001, ``Definitions for 401 
KAR Chapter 51''; 401 KAR 51:017, ``Prevention of Significant 
Deterioration of Air Quality''; and 401 KAR 51:052, ``Review of New 
Sources in or Impacting upon Nonattainment Areas.'' The revisions were 
made to update the Kentucky NSR programs to make them consistent with 
changes to the federal NSR regulations published December 31, 2002 (67 
FR 80186) and November 7, 2003 (68 FR 63021). The revisions also 
include a new rule setting a significance level for ozone depleting 
substances.
    In a letter to EPA dated August 23, 2005, Kentucky requested to 
amend the September 2, 2004, SIP submittal in light of the decision 
issued by the U.S Circuit Court of Appeals for the District of Columbia 
(D.C. Circuit Court) on June 24, 2005. In the amendment, Kentucky 
requested that the sections of the Kentucky rules corresponding to the 
EPA rules that were vacated by the D.C. Circuit Court not be approved 
into the SIP, namely Sections 20, 21, and 22 of 401 KAR 51:017, 
Sections 11, 12, and 13 of 401 KAR 51:052, and definitions (38) ``Clean 
Unit'' and (188) ``Pollution Control Project'' in Section 1 of 401 KAR 
51:001.
    On February 10, 2006 (71 FR 6988), EPA published a notice of 
proposed rulemaking (NPR) in the Federal Register, proposing to approve 
the SIP revisions including Kentucky's NSR rules. The February 10, 
2006, NPR provides additional information about the proposed Kentucky 
SIP revisions and the rationale for today's final action. The public 
comment period for the proposed action ended on March 13, 2006. No 
comments, adverse or otherwise, were received on EPA's proposed action. 
EPA is now taking final action to approve the SIP revisions submitted 
by KDEP on September 2, 2004, and amended on August 23, 2005.

II. What Is the Background for This Action?

    On December 31, 2002 (67 FR 80186), EPA published final rule 
changes to 40 Code of Federal Regulations (CFR) parts 51 and 52, 
regarding the Clean Air Act's PSD and Nonattainment New Source Review 
(NNSR) programs. On November 7, 2003 (68 FR 63021), EPA published a 
notice of final action on its reconsideration of the 2002 rules. The 
purpose of today's action is to approve the SIP submittal from the 
Commonwealth of Kentucky, which includes EPA's 2002 NSR reform rules.
    After the 2002 NSR reform rules were finalized and effective (March 
3, 2003), various petitioners challenged numerous aspects of the 2002 
NSR reform rules, along with portions of EPA's 1980 NSR rules (45 FR 
52676, August 7, 1980). On June 24, 2005, the D.C. Circuit Court issued 
a decision on the challenges to the 2002 NSR reform rules. New York v. 
United States, 413 F.3d 3 (D.C. Cir. 2005). In summary, the D.C. 
Circuit Court vacated portions of EPA's NSR rules pertaining to clean 
units and pollution control projects, remanded a portion of the rules 
regarding recordkeeping and relating to language in 40 CFR 52.21(r)(6), 
40 CFR 51.166(r)(6), and 40 CFR 51.165(a)(6), and either upheld or did 
not comment on the other provisions included as part of the 2002 NSR 
reform rules. Kentucky's SIP revisions being approved today do not 
contain any provisions of the 2002 NSR reform rules that were vacated 
as part of the June 2005 decision.
    EPA continues to move forward with its evaluation of the portion of 
its NSR reform rules that were remanded by the D.C. Circuit Court. 
Kentucky's SIP revisions are approvable at this time because the 
Kentucky rules are substantially the same as the current federal rules. 
If EPA adopts criteria that are more stringent than the current 
Kentucky rules, the Commonwealth's rules may need to be revised to be 
at least as stringent as the federal requirement.
    The 2002 NSR reform rules require that state agencies adopt and 
submit revisions to their part 51 permitting programs implementing the 
minimum program elements of the 2002 NSR reform rules no later than 
January 2, 2006. (Consistent with changes to 40 CFR 51.166(a)(6)(i), 
state agencies are now required to adopt and submit SIP revisions 
within three years after new amendments are published in the Federal 
Register.) State agencies may meet the requirements of 40 CFR part 51, 
and the 2002 NSR reform rules, with different but equivalent 
regulations. However, if a state decides not to implement any of the 
new applicability provisions, that state is required to demonstrate 
that its existing program is at least as stringent as the federal 
program.
    On September 2, 2004, the Commonwealth of Kentucky submitted SIP 
revisions including changes to Kentucky's NSR program and a rule on 
ozone depleting substances. The NSR program changes were made primarily 
to adopt EPA's 2002 NSR reform rules. On February 10, 2006 (71 FR 6988) 
EPA published a notice of proposed rulemaking (NPR) proposing to 
approve revisions to three regulations that are already part of the 
Kentucky SIP. The affected regulations are: 401 Kentucky Administrative 
Regulations (KAR) 51:001, ``Definitions for 401 KAR Chapter 51''; 401 
KAR 51:017, ``Prevention of Significant Deterioration of Air Quality''; 
and 401 KAR 51:052, ``Review of New Sources in or Impacting upon 
Nonattainment Areas.'' Kentucky's revisions are consistent with the 
federal NSR regulations published December 31, 2002 (67 FR 80186) and 
November 7, 2003 (68 FR 63021).
    Kentucky's SIP revisions also included a rule setting a 
significance level for ozone depleting substances, as part of 401 KAR 
Chapter 51:017. Kentucky's definition of ``significance'' (definition 
221), includes a significance threshold for ozone depleting substances 
(ODS) of 100 tons per year (tpy). The current federal rule 
(51.166(b)(23)(ii)) does not contain a specific threshold for ODS. In 
1996, however, EPA proposed a 100 tpy threshold for ODS. See 61 FR 
38250, July 23, 1996. Based on the rationale

[[Page 38992]]

provided in the 1996 proposal, EPA believes that it is reasonable for 
Kentucky to adopt this threshold. If EPA issues a final rule that 
establishes a threshold for ODS that is different from the one proposed 
in 1996, EPA may take further action to ensure that the Kentucky rule 
is consistent with the federal rule. At this time, however, Kentucky's 
rule is approvable and EPA is taking final action today to approve this 
rule into the Kentucky SIP.
    The February 10, 2006, NPR, and the Docket for this action, provide 
more details about the SIP revisions being approved today and the 
rationale for EPA's final action. For additional information on EPA's 
2002 NSR reform rules, see 67 FR 80186 (December 31, 2002), and http://www.epa.gov/nsr. 

III. Final Action

    EPA is taking final action to approve revisions to Kentucky's SIP 
to include changes to Kentucky regulations, 401 KAR 51:001, 401 KAR 
51:017, and 401 KAR 51:052 submitted by the Commonwealth of Kentucky on 
September 2, 2004, and amended on August 23, 2005. EPA is taking no 
action on the following provisions of the Kentucky regulations, which 
include portions of EPA's 2002 NSR reform rules that were vacated by 
the D.C. Circuit Court: Sections 20, 21, and 22 of 401 KAR 51:017, 
Sections 11, 12, and 13 of 401 KAR 51:052, and definitions (38) and 
(188) in Section 1 of 401 KAR 51:001.

IV. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
final 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 final 
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 final 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 final 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 final 
action merely approves state law as meeting Federal requirements and 
imposes no additional requirements beyond those imposed by state law, 
and therefore, it does not alter the relationship or the distribution 
of power and responsibilities established in the Clean Air Act. This 
final 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 final 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 September 11, 2006. 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: June 29, 2006.
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

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2. Section 52.920(c), Table 1 is amended by revising the entries for 
``401 KAR 51:001'', ``401 KAR 51:017'' and ``401 KAR 51:052'' to read 
as follows:


Sec.  52.920  Identification of plan.

* * * * *
    (c) * * *

[[Page 38993]]



                                   Table 1.--EPA-Approved Kentucky Regulations
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                                                             State
          State citation              Title/subject     effective date   EPA approval  date      Explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
401 KAR 51:001...................  Definitions for 401      07/14/2004  07/11/06 [Insert     EPA is taking no
                                    KAR Chapter 51.                      citation of          action on
                                                                         publication].        definitions (38)
                                                                                              ``Clean Unit'' and
                                                                                              (188) ``Pollution
                                                                                              Control Project''.
 
                                                  * * * * * * *
401 KAR 51:017...................  Prevention of            07/14/2004  07/11/06 [Insert     EPA is taking no
                                    significant                          citation of          action on sections
                                    deterioration of                     publication].        20, 21, and 22.
                                    air quality.
401 KAR 51:052...................  Review of new            07/14/2004  07/11/06 [Insert     EPA is taking no
                                    sources in or                        citation of          action on sections
                                    impacting upon                       publication].        11, 12, and 13.
                                    nonattainment
                                    areas.
 
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[FR Doc. 06-6089 Filed 7-10-06; 8:45 am]
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