Air quality planning purposes; designation of areas: Kentucky,

[Federal Register: August 18, 1998 (Volume 63, Number 159)]

[Rules and Regulations]

[Page 44143-44146]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr18au98-11]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[KY 99-1-9820a; FRL-6142-7]

Designation of Areas for Air Quality Planning Purposes--Kentucky: Redesignation of the Muhlenberg County Sulfur Dioxide Secondary Nonattainment Area to Attainment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

SUMMARY: On November 21, 1997, the Commonwealth of Kentucky submitted, through the Natural Resources and Environmental Protection Cabinet (the Cabinet), a request for redesignation of Muhlenberg County, Kentucky, to attainment for the secondary sulfur dioxide (SO‹INF›2‹/INF›) National Ambient Air Quality Standard (NAAQS). The secondary nonattainment designation for SO‹INF›2‹/INF› was based on the fact that the Tennessee Valley Authority (TVA) Paradise Steam Plant was out of compliance with its allowable emission limit. The Cabinet submitted air dispersion modeling which demonstrates that the secondary (NAAQS) for SO‹INF›2‹/INF› are now being maintained. The EPA is approving the request for redesignation.

DATES: This direct final rule is effective on October 19, 1998 without further notice, unless EPA receives adverse comment by September 17, 1998. If EPA receives adverse comment, we 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: Scott M. Martin, Regulatory Planning Section, Air Planning Branch, Air, Pesticides & Toxics Management Division, Region 4 Environmental Protection Agency, 61 Forsyth Street, 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 interested persons wanting to examine these documents should make an appointment with the appropriate office at least 24 hours before the visiting day.

Environmental Protection Agency, Region 4 Air Planning Branch, 61 Forsyth Street, Atlanta, Georgia 30303. Mr. John E. Hornback, Director, Division of Air Quality, Department for Environmental Protection, Natural Resources and Environmental Protection Cabinet, 803 Schenkel Lane, Frankfort, Kentucky 40601.

FOR FURTHER INFORMATION CONTACT: Scott M. Martin, Regulatory Planning Section, Air Planning Branch, Air, Pesticides & Toxics Management Division, Region 4 Environmental Protection Agency, 61 Forsyth Street, Atlanta, Georgia 30303. The telephone number is 404-562-9036.

SUPPLEMENTARY INFORMATION: In a Federal Register document published March 3, 1978, (see 43 FR 8962) Muhlenberg County was originally designated nonattainment for the primary and secondary SO‹INF›2‹/INF› NAAQS. The nonattainment designation was due to noncompliance of the TVA Paradise Plant and the Kentucky Utilities' Green River Plant. In a June 24, 1983, Federal Register (see 48 FR 28988) EPA approved a redesignation request for Muhlenberg County from nonattainment to attainment for the SO‹INF›2‹/INF› primary NAAQS. The redesignation request for attainment of the primary standard was approved based on the fact that the Kentucky Utilities' Green River Plant had already achieved final compliance with its modeled SO‹INF›2‹/INF› emission limit of 3.5 lbs/MMBTU in 1980 and that the TVA Paradise Plant had achieved compliance with its modeled SO‹INF›2‹/INF› emission limit of 5.2 lbs/MMBTU. Both of these emission limitations were determined by modeling to be adequate

[[Page 44144]]

to attain and protect the primary SO‹INF›2‹/INF› NAAQS. Additionally, in the same June 24, 1983, Federal Register indicated that a modeled SO‹INF›2‹/INF› emission limitation of 3.1 lbs/MMBTU was required for TVA Paradise Plant in order for the area to achieve and maintain the SO‹INF›2‹/INF› secondary NAAQS. The TVA Paradise Steam Plant has and continues to comply with the more stringent SO‹INF›2‹/INF› emission limitation which is the basis for the request for secondary redesignation. The Commonwealth of Kentucky has met all of the Clean Air Act Amendments of 1990 (CAA) requirements for redesignation pursuant to Section 107(d)(3)(E).

Section 107(d)(3)(E)(I) The Administrator Has Determined That the Area Has Attained the NAAQS

The Cabinet submitted air quality data showing that Muhlenberg County has attained the SO‹INF›2‹/INF› secondary NAAQS since 1982. During that period there were no exceedances, and hence, no violations of the SO‹INF›2‹/INF› NAAQS.

Section 107(d)(3)(E)(ii) The Administrator Has Fully Approved the Applicable Implementation Plan for the Area Under Section 110(k)

The Kentucky SIP is fully approved and meets all requirements under section 110(k) which are applicable to Muhlenberg County. In a Federal Register published on June 24, 1983, (see 48 FR 28988) it is stated that an emission limit of 3.1 lbs/MMBTU for the TVA Paradise Plant is required in order for Muhlenberg County to attain the SO‹INF›2‹/INF› secondary NAAQS. The TVA Paradise Plant was required to meet an emission limitation of 5.2 lbs/MMBTU until December 1, 1983, at which time the plant must meet the 3.1 lbs/MMBTU limit. The 3.1 lbs/MMBTU limit is presently part of Kentucky's approved SIP and is currently enforceable by EPA (see 45 FR 72153).

Section 107(d)(3)(E)(iii) The Administrator Determines That the Improvement in Air Quality Is Due to Permanent and Enforceable Reductions in Emissions Resulting From Implementation of the Applicable Implementation Plan and Applicable Federal Air Pollutant Control Regulations and Other Permanent and Enforceable Reductions

The TVA Paradise Plant and the Kentucky Utilities' Green River Plant are the only two significant sources of SO‹INF›2‹/INF› in Muhlenberg County. New emission standards were established for the Green River and TVA Paradise plants. The Green River Plant achieved compliance with its new 3.5 lbs/MMBTU emission limit for SO‹INF›2‹/INF› in 1980 and the TVA Paradise Plant achieved compliance with its new 3.1 lbs/MMBTU for SO‹INF›2‹/INF› in 1983 (see 48 FR 28988).

Section 107(d)(3)(E)(iv) The Administrator Has Fully Approved a Maintenance Plan for the Area as Meeting the Requirements of Section 175A

Muhlenberg County is currently classified as secondary nonattainment for the SO‹INF›2‹/INF› NAAQS and maintenance plans are not required for secondary nonattainment areas. Thus, Kentucky did not submit a maintenance plan.

Section 107(d)(3)(E)(v) The State Containing Such Area Has Mmet All Requirements Applicable to the Area Under Section 110 and Part D

Kentucky has complied with all requirements of section 110 of the CAA part D. Additionally, a Prevention of Significant Deterioration (PSD) program exists in Kentucky and applies to Muhlenberg County. By administering the requirements of PSD in Muhlenberg County, any new or modified source must address the potential impacts of SO‹INF›2‹/INF› emissions in that area. This would include modeling to assess the potential ambient impact in the vicinity of the TVA Paradise Steam Plant. These requirements will protect the SO‹INF›2‹/INF› NAAQS in the Muhlenberg County area. Therefore, Kentucky has complied with all requirements of section 110 and part D of the CAA and has satisfied all requirements of section 107(d)(3)(E).

Final Action

In this action, EPA is approving the request to redesignate Muhlenberg County, Kentucky, to attainment for the secondary SO‹INF›2‹/INF› NAAQS.

The SO‹INF›2‹/INF› SIP is designed to satisfy the requirements of part D of the CAA and to provide for attainment and maintenance of the SO‹INF›2‹/INF› NAAQS. This final redesignation should not be interpreted as authorizing the State to delete, alter, or rescind any of the SO‹INF›2‹/INF› emission limitations and restrictions contained in the approved SO‹INF›2‹/INF› SIP. Changes to SO‹INF›2‹/INF› SIP regulations rendering them less stringent than those contained in the EPA approved plan cannot be made unless a revised plan for attainment and maintenance 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.

The EPA is publishing this action without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in a separate document published elsewhere in this Federal Register publication, the EPA is proposing to approve the SIP revision should adverse or critical comments be filed. This action will be effective October 19, 1998 unless, by September 17, 1998, adverse or critical comments are received, or the areas fail to continue in attainment status until the final notice approving such redesignation is effective.

If the EPA receives such comments or the areas fail to continue in attainment status until the final document approving such redesignation is effective, this action will be withdrawn before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will be addressed in a subsequent final rule based on the companion proposed rule.

The EPA will not institute a second comment period on this action. Any parties interested in commenting on this action should do so at this time. If no such comments are received, the public is advised that this action will be effective October 19, 1998.

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, section 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.

Administrative Requirements

  1. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this regulatory action from review under Executive

    [[Page 44145]]

    Order 12866, entitled Regulatory Planning and Review.

  2. 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.

  3. Regulatory Flexibility Act

    Under the Regulatory 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. 603 and 604. Alternatively, EPA may certify that the rule will not have a significant 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.

    Redesignation of an area to attainment under section 107(d)(3)(E) of the CAA does not impose any new requirements on small entities. Redesignation is an action that affects the status of a geographical area and does not impose any regulatory requirements on sources. The Regional Administrator certifies that the approval of the redesignation request will not affect a substantial number of small entities.

  4. 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 private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the 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 action 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 the 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.

  5. Disclaimer Language Approving SIP Revisions in Audit Law States

    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.

  6. 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).

  7. 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 October 19, 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 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 81

    Environmental protection, Air pollution control, National parks, Wilderness areas.

    Dated: August 3, 1998. A. Stanley Meiburg, Acting Regional Administrator, Region 4.

    40 CFR part 81 is amended as follows:

    PART 81--[AMENDED]

    1. The authority citation for part 81 continues to read as follows:

      Authority: 42.U.S.C. 7401-7671q.

      Subpart C--Section 107 Attainment Status Designations

    2. In section 81.318, the ``Kentucky-SO‹INF›2‹/INF›'' table is amended by revising the entries for ``Muhlenberg County'' to read ``Better than national standards.''

      Sec. 81.318 Kentucky

      * * * * *

      Kentucky-SO‹INF›2

      Does not Does not

      meet

      meet Cannot be Better than Designated area

      primary secondary classified national standards standards

      standards

      *

      *

      *

      *

      *

      * *

      Muhlenberg County.......................................... ........... ........... ...........

      X

      *

      *

      *

      *

      *

      * *

      [[Page 44146]]

      * * * * *

      [FR Doc. 98-22054Filed8-17-98; 8:45 am]

      BILLING CODE 6560-50-P

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