[Federal Register Volume 76, Number 242 (Friday, December 16, 2011)]
[Rules and Regulations]
[Pages 78162-78164]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-32171]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2011-0867-201157(a); FRL-9507-3]


Approval and Promulgation of Implementation Plans: Kentucky; 
Visibility Impairment Prevention for Federal Class I Areas; Removal of 
Federally Promulgated Provisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is taking direct final action to rescind the federally 
promulgated provisions regarding visibility in the Kentucky State 
Implementation Plan (SIP). EPA approved Kentucky's visibility rules 
addressing new source review (NSR) for sources in nonattainment areas 
on July 11, 2006. EPA's approval of these rules neglected to remove the 
previous federally promulgated provisions from the Federal 
Implementation Plan (FIP). EPA is correcting this omission in this 
rulemaking. This action is being taken pursuant to the Clean Air Act 
(CAA).

DATES: This rule is effective on February 14, 2012 without further 
notice, unless EPA receives relevant adverse comment by January 17, 
2012. If EPA receives such comment, EPA will publish a timely 
withdrawal in the Federal Register informing the public that this rule 
will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2011-0867, by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: [email protected].
    3. Fax: (404) 562-9019.
    4. Mail: ``EPA-R04-OAR-2011-0867,'' 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.
    5. Hand Delivery or Courier: Lynorae Benjamin, Chief, 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. 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 Docket ID No. ``EPA-R04-OAR-
2011-0867.'' 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://www.regulations.gov, 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 through http://www.regulations.gov or email, information that you consider to be CBI 
or otherwise protected. The http://www.regulations.gov Web site is an 
``anonymous access'' system, 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 email comment directly to EPA without 
going through http://www.regulations.gov, your email 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. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
http://www.regulations.gov index. 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 http://www.regulations.gov or in hard copy at the Regulatory Development 
Section,

[[Page 78163]]

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: Madolyn S. Dominy, 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. Ms. Dominy may be 
reached by phone at (404) 562-9644 or by electronic mail address 
[email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Background for This Action
II. Final Action
III. Statutory and Executive Order Reviews

I. Background for This Action

    On February 20, 1986, the Commonwealth of Kentucky submitted 
provisions constituting its plan to address visibility impairment in 
Federal Class I areas as a revision to Kentucky's SIP. EPA approved 
Kentucky's February 20, 1986, SIP revision on September 1, 1989, except 
for the provisions related to the review of new sources in 
nonattainment areas. In that action, EPA revised 40 CFR 52.936 to 
expressly reject Kentucky's proposed nonattainment NSR provisions and 
substitute 40 CFR 52.28 by reference.
    On September 2, 2004, and August 23, 2005, the Commonwealth of 
Kentucky submitted SIP revisions to address visibility in its 
nonattainment NSR program. EPA fully approved these SIP revisions on 
July 11, 2006. See 71 FR 38990.
    The aforementioned SIP revisions provide the necessary changes to 
Kentucky's plan for visibility impairment prevention for Class I areas 
from sources in nonattainment areas and satisfy EPA's requirements as 
set forth in 40 CFR 51.307(b) and (c). These visibility provisions also 
satisfy the settlement agreement with the Environmental Defense Fund, 
et al., Environmental Defense Fund v. Gorsuch, No. C-82-6850 RPA (N.D. 
Cal.) (Settlement Agreement), described at 49 FR 20647 on May 16, 1984.
    The first part of the Settlement Agreement required Kentucky to 
develop visibility NSR and visibility monitoring provisions to meet the 
requirements of 40 CFR 51.305 and 51.307 and submit those provisions to 
EPA by May 6, 1985. This part of the Settlement Agreement further 
required EPA to approve the state submittal or to promulgate a FIP by 
January 6, 1986. Since Kentucky had not yet submitted a final 
visibility SIP, EPA promulgated a Federal program for Kentucky to meet 
the requirements of 40 CFR 51.305 and 51.307 on February 13, 1986 (51 
FR 5504). The Federal program, which is covered by the Federal 
visibility monitoring strategy (40 CFR 52.26) and visibility NSR 
program (40 CFR 52.27 and 52.28), was promulgated as part of the 
Kentucky SIP. The provisions submitted by Kentucky on February 20, 
1986, and approved by EPA on September 1, 1989, partially removed the 
Federal promulgation. See 54 FR 36307.
    The second part of the Settlement Agreement required EPA to propose 
and promulgate visibility FIPs addressing the general visibility plan 
provisions including implementation control strategies (40 CFR 51.302), 
integral vista protection (40 CFR 51.302 through 51.307), and long-term 
strategies (40 CFR 51.306) for those states whose SIPs EPA had 
determined to be inadequate with respect to the above provisions (see 
January 23, 1986, notice of deficiency (51 FR 3046) and March 12, 1987, 
notice proposing FIPs for deficient state's implementation plans (52 FR 
7803)). However, as provided in the Settlement Agreement, a state could 
avoid the promulgation of said provisions by EPA in a FIP if it 
submitted a visibility SIP by August 31, 1987. The Commonwealth of 
Kentucky submitted a plan to satisfy the second part of the Settlement 
Agreement on August 31, 1987, and EPA approved the visibility SIP 
submittal for these elements on July 12, 1988. See 53 FR 26253.
    As mentioned above, the Commonwealth of Kentucky provided a SIP 
revision on February 20, 1986, constituting its plan to address 
visibility impairment in Federal Class I areas as a revision to 
Kentucky's SIP. On September 1, 1989, EPA approved Kentucky's SIP 
revision (submitted on February 20, 1986) except for those provisions 
related to the review of new sources in nonattainment areas. As a 
result of EPA's aforementioned 1988 and 1989 actions, these 
nonattainment NSR provisions were the only remaining non-approved 
provisions in Kentucky's plan to address visibility impairment. On 
September 2, 2004, and August 23, 2005, the Commonwealth of Kentucky 
submitted rules for addressing visibility in its NSR program in 
nonattainment areas. EPA fully approved Kentucky's September 2, 2004, 
and August 23, 2005, SIP revisions on July 11, 2006 (71 FR 38990), but 
inadvertently did not remove the federally-promulgated provisions in 40 
CFR 52.936. Today's action corrects that oversight.

II. Final Action

    EPA is taking direct final action to correct an omission related to 
the visibility requirements for Kentucky. Specifically, EPA is removing 
the previous federally promulgated provisions in 40 CFR 52.936 for 
visibility from sources in nonattainment areas for Kentucky because the 
Commonwealth later submitted, and EPA approved, revisions covering 
visibility requirements for Kentucky. EPA is approving the 
aforementioned changes to the Kentucky SIP because they are consistent 
with the CAA and Agency requirements. 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 February 14, 2012 without further 
notice unless the Agency receives adverse comments by January 17, 2012.
    If 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. 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 February 14, 2012 and no 
further action will be taken on the proposed rule.

III. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond

[[Page 78164]]

those imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the 
SIP is not approved to apply in Indian country located in the state, 
and EPA notes that it will not impose substantial direct costs on 
tribal governments or preempt tribal law.
    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 action 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 CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by February 14, 2012. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action 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. Parties with objections to this direct final rule are 
encouraged to file a comment in response to the parallel notice of 
proposed rulemaking for this action published in the proposed rules 
section of today's Federal Register, rather than file an immediate 
petition for judicial review of this direct final rule, so that EPA can 
withdraw this direct final rule and address the comment in the proposed 
rulemaking. 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, Intergovernmental 
relations, Incorporation by reference, Particulate matter, Reporting 
and recordkeeping requirements, Volatile organic compounds, Sulfur 
dioxide.

    Dated: December 8, 2011.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

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

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

Subpart S--Kentucky


Sec.  52.936  [Removed and Reserved]

0
2. Section 52.936 is removed and reserved.

[FR Doc. 2011-32171 Filed 12-15-11; 8:45 am]
BILLING CODE 6560-50-P