[Federal Register: August 24, 2005 (Volume 70, Number 163)]
[Rules and Regulations]
[Page 49493-49496]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24au05-5]
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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: notarianni.michele@epa.gov.
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:
notarianni.michele@epa.gov.
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.
0
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
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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.
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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]
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