Federal Register: September 3, 1998 (Volume 63, Number 171)Rules and RegulationsPage 46894-46898From the Federal Register Online via GPO Access [wais.access.gpo.gov]

DOCID:fr03se98-20

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

KY-104-9818a; FRL-6152-9Approval and Promulgation of Implementation Plans; Commonwealth of Kentucky

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

SUMMARY: EPA is approving revisions to the Edmonson County and Owensboro portions of the Kentucky State Implementation Plan (SIP) submitted on April 16, 1998, through the Kentucky Natural Resources and Environmental Protection Cabinet (NREPC). The purpose of this action is to incorporate revised motor vehicle emissions budgets for Owensboro and Edmonson, Kentucky. These budgets are used for demonstration of conformity of transportation plans, programs, and projects with the Kentucky SIP for the Edmonson County and Owensboro ozone maintenance areas. This action is

[Page 46895]in accordance with the Transportation Conformity Rule promulgated on November 24, 1993, and subsequent amendments.

DATES: This direct final rule is effective on November 2, 1998, without further notice, unless EPA receives adverse comments by October 5, 1998. 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: Written comments should be addressed to: Kelly Sheckler at the Region 4, Environmental Protection Agency, Air Planning Branch, 61 Forsyth Street, SW, Atlanta, Georgia 30303.

Copies of the documents relative to this action are available for public inspection during normal business hours at the following locations. The persons wanting to examine these documents should make an appointment with the appropriate office at least 24 hours before the visiting day. Reference file number KY-104-9818. The Region 4 office may have additional background documents not available at the other locations.

Air and Radiation Docket and Information Center (Air Docket 6102), U.S. Environmental Protection Agency, 401 M Street, SW, Washington, D.C. 20460. Environmental Protection Agency, Region 4 Air Planning Branch, 61 Forsyth Street, SW, Atlanta, Georgia 30303. Kentucky Department for Environmental Protection, 803 Schenkel Lane, Frankfort, Kentucky 400601.

FOR FURTHER INFORMATION CONTACT: Kelly Sheckler at (404) 562-9042. Reference file KY-104-9818.

SUPPLEMENTARY INFORMATION: The Commonwealth of Kentucky through the KNREPC submitted an attainment and maintenance plan for the Edmonson County and Owensboro ozone nonattainment areas on November 13, 1992. The Owensboro area consists of Daviess County and a portion of Hancock County. The Commonwealth of Kentucky's request for redesignation of the Edmonson County and Owensboro ozone nonattainment areas was approved by EPA because the areas attained the ozone NAAQS, met all relevant requirements under section 110 and part D of the CAA, had a fully approved SIP under section 110(k) of the CAA, demonstrated permanent and enforceable air quality improvement, and had a maintenance plan satisfying the requirements of section 175A of the CAA. For further detail on this rulemaking refer to 59 FR 55058, dated November 3, 1994. This SIP contained comprehensive inventories of volatile organic compound (VOC), nitrogen oxide (NO<INF>X</INF>), and carbon dioxide (CO) emissions for the Edmonson County and Owensboro ozone areas. The inventories include biogenic, area, stationary, and mobile sources using 1990 as the base year for projections to demonstrate maintenance. The 1990 inventory is considered representative of attainment conditions because the NAAQS was not violated during 1990.

EPA approved this revision of the Kentucky SIP and redesignated the area from nonattainment to attainment for ozone effective January 3, 1995. At the time of this submittal, EPA had not finalized the Transportation Conformity rule which provides the criteria and procedures by which the transportation planning authorities must show that transportation plans and projects conform to the emission estimates in the applicable state maintenance plan. In the maintenance SIP, the Commonwealth did not provide an explicit motor vehicles emissions budget for the purposes of showing conformity. However, the Transportation Conformity regulations at 40 CFR 51.456 were promulgated on November 24, 1993, and defined a mobile source emissions budget for determining conformity of transportation as the mobile source portion of the total allowable emissions defined in the submitted or approved control strategy implementation plan revision or maintenance plan. The Commonwealth established an emissions baseline inventory as part of its redesignation and maintenance SIP. As required for maintenance demonstrations, the emission projections from the baseline inventory were developed for a ten year period. In areas subject to conformity, that had not established an emissions budget per 40 CFR 51.456, a SIP approved emissions projection inventory would be used as the emissions budget for conformity purposes. Therefore, the emission projections inventory provided in the Commonwealth's maintenance plan became the emissions budget for conformity.

Furthermore, 40 CFR Part 93.118, allows states to revise their emissions budgets at any time through the standard SIP revision process, provided the submittal demonstrates that the revised emissions budget will not interfere with attainment and maintenance of the standard or any milestones in the required time frame.

The Clean Air Act (CAA), as amended in 1990, defines conformity to an implementation plan as conformity to the plan's purpose of reducing the severity and number of violations of the National Ambient Air Quality Standards (NAAQS) and achieving expeditious attainment of such standards. Specifically, the CAA requires transportation improvement programs (TIP) and Long Range Transportation Plans that are federally funded or approved actions will not cause or contribute to any new violation, increase the frequency or severity of any existing violation, or delay timely attainment of any standard or any required interim emission reductions or other milestones in any area. Therefore, the emissions expected from implementation of such transportation plans and programs must be consistent with estimates of emissions from a maintenance plan.

The total emissions in the revised emissions budget for the Edmonson County and Owensboro ozone maintenance areas are below the 1990 levels through the period of projection necessary for the attainment and maintenance plan, i.e., through 2005. Due to reductions expected from new and/or future federal emission standards, non-road source emissions are projected to decrease below the levels projected in the original maintenance plan. The safety margin created from this category is allotted to the on-road mobile source emissions budget. As provided in the table below, the reallotted emissions budget maintains the 1990 levels and is consistent with the redesignation/maintenance demonstration SIP.

[Page 46896]

NO<INF>X Emissions Inventory Summary

Tons per day

Category

1990

1993

1996

1999

2002

2004

Edmonson County

Mobile..................................................

.86

.83

.81

.79

.77

.78 Area....................................................

.04

.04

.04

.04

.04

.04 Point...................................................

0

0

0

0

0

0 Nonroad.................................................

.37

.38

.39

.40

.40

.41

Total...............................................

1.27

1.25

1.24

1.23

1.22

1.23

Daviess County

Mobile..................................................

5.33

5.25

5.17

5.11

5.04

5.10 Area....................................................

.22

.22

.22

.22

.22

.22 Point...................................................

39.20

38.92

38.65

38.37

38.10

37.92 Nonroad.................................................

2.91

2.89

2.87

2.85

2.83

2.82

Total...............................................

47.66

47.28

46.91

46.55

46.19

46.06

Hancock County

Mobile..................................................

.14

.14

.13

.13

.12

.12 Area....................................................

0

0

0

0

0

0 Point...................................................

42.86

42.89

42.93

42.97

43.01

43.04 Nonroad.................................................

.16

.16

.16

.16

.16

.16

Total...............................................

43.16

43.19

43.22

43.26

43.29

43.32

VOC Emissions Inventory Summary

Tons per day

Category

1990

1993

1996

1999

2002

2004

Edmonson County

Mobile..................................................

1.24

.79

.75

.73

.72

.72 Area....................................................

.74

.76

.77

.79

.80

.82 Point...................................................

0

0

0

0

0

0 Nonroad.................................................

.45

.46

.47

.48

.49

.50

Total...............................................

2.43

2.01

1.99

2.00

2.01

2.04

Daviess County

Mobile..................................................

10.18

6.65

6.48

6.42

6.44

6.53 Area....................................................

5.29

5.25

5.22

5.18

5.15

5.13 Point...................................................

13.23

13.13

13.04

12.95

12.86

12.80 Nonroad.................................................

3.84

3.81

3.79

3.76

3.74

3.72

Total...............................................

32.54

28.84

28.53

28.31

28.19

28.18

Hancock County

Mobile..................................................

.20

.13

.12

.12

.11

.11 Area....................................................

.08

.08

.08

.08

.08

.08 Point...................................................

3.23

3.30

3.30

3.30

3.31

3.31 Nonroad.................................................

.09

.09

.09

.09

.09

.09

Total...............................................

3.60

3.60

3.59

3.59

3.59

3.59

Final action

EPA is approving Kentucky's revised emission budget for the Edmonson County and Owensboro ozone maintenance area. The Agency has reviewed this request for revision of the Federally approved State implementation plans (SIP) for conformance with the provisions of the Amendments enacted on November 15, 1990, and the Transportation Conformity Rule promulgated on November 24, 1993 and amended on August 15, 1997. The Agency has determined that this request conforms to those requirements. Therefore, this action revises the motor vehicle emissions budget for the Kentucky Counties of Edmonson, Daviess and a portion of Hancock.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse

[Page 46897]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 relevant adverse comments be filed. This rule will be effective November 2, 1998 without further notice unless the Agency receives relevant adverse comments by October 5, 1998.

If the EPA receives such comments, then EPA will publish a timely withdrawal of the direct final rule 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 on this rule. Only parties interested in commenting on the rule should do so at this time. If no such comments are received, the public is advised that this rule will be effective on November 2, 1998 and no further action will be taken on the proposed rule.

The ozone SIP is designed to satisfy the requirements of part D of the CAA and to provide for attainment and maintenance of the ozone NAAQS. Approval of this motor vehicle emissions budget should not be interpreted as authorizing the State to delete, alter, or rescind any of the VOC or NO<INF>X</INF> emission limitations and restrictions contained in the approved ozone SIP. Changes to ozone SIP VOC regulations rendering them less stringent than those contained in the EPA approved plan cannot be made unless a revised maintenance plan is submitted to and approved by EPA. Unauthorized relaxations, deletions, and changes could result in both a finding of non-implementation

[section 173(b) of the CAA] and in a SIP deficiency call made pursuant to section 110(a)(2)(H) of the CAA.

Nothing in this action will be construed as permitting or allowing or establishing a precedent for any future request for a revision to any SIP. Each request for revision to the SIP will be considered separately in light of specific technical, economic, and environmental factors and in relation to relevant statutory and regulatory requirements.

Nothing in this action should be construed as making any determination or expressing any position regarding Kentucky's audit privilege and penalty immunity law KRS 224.01-040 or its impact upon any approved provision in the SIP, including the revision at issue here. The action taken herein does not express or imply any viewpoint on the question of whether there are legal deficiencies in this or any other Clean Air Act program resulting from the effect of Kentucky's audit privilege and immunity law. A state audit privilege and immunity law can affect only state enforcement and cannot have any impact on federal enforcement authorities. EPA may at any time invoke its authority under the Clean Air Act, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the Clean Air Act is likewise unaffected by a state audit privilege or immunity law.

I. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this regulatory action from review under Executive Order 12866, entitled Regulatory Planning and Review.

B. Executive Order 13045

The final rule is not subject to Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks, because it is not an ``economically significant'' action under Executive Order 12866.

C. Regulatory Flexibility Act

Under the Flexibility Act, 5 U.S.C. 600 et seq., EPA must prepare a regulatory flexibility analysis assessing the impact of any proposed or final rule on small entities. 5 U.S.C sections 603 and 604. Alternatively, EPA may certify that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and government entities with jurisdiction over populations of less than 50,000.

SIP approvals under section 110 and subchapter I, part D of the CAA does not create any new requirements, but simply approve requirements that the state is already imposing. Therefore, because the federal SIP- approval does not impose any new requirements, I certify that it does not have a significant impact on small entities. Moreover, due to the nature of the federal-state relationship under the CAA, preparation of a regulatory flexibility analysis would constitute federal inquiry into the economic reasonableness of state action. The CAA forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42 U.S.C. section 7410 (a)(2) and, 7410 (k)(3).

D. Unfunded Mandates

Under Section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated costs to State, local, or tribal governments in the aggregate, or to the private sector, of $100 million or more. Under Section 205, EPA must select the most cost effective and least burdensome alternative that achieves objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

EPA has determined that the approval promulgated does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in aggregate, or to the private sector. This Federal action approves pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.

E. Submission to Congress and the Comptroller General

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. This rule is not a ``major rule'' as defined by 5 U.S.C. 804(2).

F. Petitions for Judicial Review

Under Section 307((b)(1) of the Clean Air Act, petitions for judicial review of this action must be filedin the United States Court of Appeals for the appropriate circuit by November 2, 1998. 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

[Page 46898]review may be filed, and will 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, Hydrocarbons, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone.

Dated: July 30, 1998. A. Stanley Meiburg, Acting Regional Administrator, Region 4.

Part 52 of chapter I, title 40, 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, is amended by adding paragraph (c)(91) to read as follows:

Sec. 52.920 Identification of plan.

* * * * *

  (c) * * *

  (91) The maintenance plan for Edmonson County and Owensboro ozone area submitted by the Commonwealth of Kentucky through the Natural Resources and Environmental Protection Cabinet on April 16, 1998, as part of the Kentucky SIP.

  (i) Incorporation by reference.

Mobile Emissions Budgets for Owensboro Area and Edmonson County Marginal Ozone Maintenance Areas: Introduction page and Tables 1 through 8 effective April 14, 1998.

  (ii) Other material. None.

FR Doc. 98-23502Filed9-2-98; 8:45 amBILLING CODE 6560-50-P