Approval and Promulgation of Implementation Plans for Kentucky: Air Permit Regulations

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

The EPA is approving revisions to the State Implementation Plan (SIP) of the Commonwealth of Kentucky which separate rule 401 KAR 50:035 into several rules based on the type of air permit, and renumber and rewrite in plain English rule 401 KAR 50:032 and the resulting rules from 401 KAR 50:035. The EPA is also removing 401 KAR 50:030 from the Kentucky SIP and correcting typographical errors in a separate, related action addressing rule 401 KAR 52:080, “Regulatory limit on potential to emit.”

DATES:

This direct final rule is effective February 28, 2003 without further notice, unless EPA receives adverse comment by January 29, 2003. 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 notarianni.michele@epa.gov (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, notarianni.michele@epa.gov)

Commonwealth of Kentucky, Division for Air Quality, 803 Schenkel Lane, Frankfort, Kentucky 40601-1403. (502/573-3382)

FOR FURTHER INFORMATION CONTACT:

Michele Notarianni at the address listed above or 404/562-9031 (phone) or notarianni.michele@epa.gov (e-mail).

SUPPLEMENTARY INFORMATION:

I. Today's Action

The EPA is approving revisions to the State Implementation Plan (SIP) of the Commonwealth of Kentucky submitted on March 15, 2001. These revisions separate rule 401 KAR 50:035 into several rules based on the type of air permit, and renumber and rewrite in plain English the resulting regulations. The revisions also rewrite in plain English rule 401 KAR 50:032 and renumber it as 401 KAR 52:090. Today's action fully approves a total of four rules into the Kentucky SIP. The four rules that EPA is adding to the SIP are: 401 KAR 52:001: “Definitions for 401 KAR Chapter 52,” 401 KAR 52:030: “Federally-enforceable permits for non-major sources” 401 KAR 52:090: “Prohibitory rule for hot mix asphalt plants,” and 401 KAR 52:100: “Public, affected state, and U.S. EPA review.” The two rules being replaced by these four, new rules are 401 KAR 50:032, “Prohibitory rule for hot mix asphalt plants,” and 401 KAR 50:035, “Permits,” which are listed under Chapter 50, “General Administrative Procedures.”

Also under Chapter 50, EPA is removing 401 KAR 50:030, “Registration of sources,” from the list of EPA-approved Kentucky regulations because it is a nonregulatory provision and has no basis for inclusion in the SIP. In addition, EPA is correcting typographical errors in a separate, related action by replacing all references to rule, “401 KAR 50:080,” with the correct citation, “401 KAR 52:080.” (See 67 FR 53312, August 15, 2002.) In this earlier action, the Agency conditionally approved, but incorrectly cited, Rule 401 KAR 52:080: “Regulatory limit on potential to emit,” which was submitted as part of the March 15, 2001, package as one of the rules resulting from the rewrite of 401 KAR 50:035.

II. Final Action

The EPA is approving four rules, 401 KAR 52:001, 401 KAR 52:030, 401 KAR 52:090, and 401 KAR 52:100, in a new Chapter 52 into the Kentucky SIP and deleting the following, three rules in their entirety: 401 KAR 50:030, 401 KAR 50:032, and 401 KAR 50:035. The EPA is also correcting typographical errors in a separate, related action addressing rule 401 KAR 52:080, “Regulatory limit on potential to emit.” The EPA is approving these changes because they are consistent with the Clean Air Act and EPA policy.

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 February 28, 2003 without further notice unless the Agency receives adverse comments by January 29, 2003.

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 February 28, 2003 and no further action will be taken on the proposed rule.

III. 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 (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 February 28, 2003. 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
• Intergovernmental relations
• Lead
• Nitrogen dioxide
• Ozone
• Reporting and recordkeeping requirements
• Sulfur oxides
• Volatile organic compounds

Part 52 of chapter I, title 40, of the 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. Section 52.920(c) is amended to read as follows:

(a) Under Chapter 50, “General Administrative Procedures,” remove the entries for “401 KAR 50:030,” “401 KAR 50:032,” and “401 KAR 50:035”;

(b) Add, in numerical order, a new entry for “Chapter 52 Permits, Registrations, and Prohibitory Rules.”