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

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: July 11, 2006 (Volume 71, Number 132)]
[Rules and Regulations]
[Page 38990-38993]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11jy06-7]

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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 http://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 http://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: lakeman.sean@epa.gov. 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: fortin.kelly@epa.gov.

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 (59 FR 22951, 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.

? 40 CFR part 52 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), 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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Approval and Promulgation of Implementation Plans; Kentucky Prevention of Significant Deterioration and Nonattainment New Source Review

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