

[Federal Register: October 17, 2007 (Volume 72, Number 200)]
[Rules and Regulations]               
[Page 58759-58762]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17oc07-8]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2005-KY-0004-200733, FRL-8482-5]

 
Approval and Promulgation of Implementation Plans Kentucky: 
Performance Testing and Open Burning

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 Kentucky 
Department of Air Quality (KDAQ) on September 6, 2005. The revisions 
include modifications to Kentucky's Administrative Regulations (KAR) 
Title 401, Chapters 50:045 and 63:005, which pertain to Kentucky's 
performance testing and open burning provisions, respectively. These 
revisions are part of Kentucky's strategy to meet the national ambient 
air quality standards (NAAQS) by reducing emissions of volatile organic 
compounds and nitrogen oxides, which are the precursors to ozone 
formation. Open burning creates smoke that contains fine particles 
(PM2.5) and precursors to ozone. The approved rules are intended to 
help control levels of PM2.5 and ozone precursors that contribute to 
high ozone and PM2.5 levels. This action is being taken pursuant to 
section 110 of the Clean Air Act (CAA). This final rule also addresses 
a comment made on EPA's proposed rulemaking for this action published 
on January 17, 2007.

EFFECTIVE DATE: This rule will be effective November 16, 2007.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2005-KY-0004. All documents in the 
docket are listed on the http://www.regulations.gov Web site. Although listed 

in the index, some information is not publicly available, i.e., 
Confidential

[[Page 58760]]

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 Office's official hours of 
business are Monday through Friday, 8:30 a.m. to 4:30 p.m, excluding 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Heidi LeSane, Regulatory Development 
Section, Air Planning Branch, Air, Pesticides and Toxics Management 
Division, Region 4, U.S. Environmental Protection Agency, 61 Forsyth 
Street, SW., Atlanta, Georgia 30303-8960. The telephone number is (404) 
562-9074. Ms LeSane can also be reached via electronic mail at 
lesane.heidi@epa.gov.


SUPPLEMENTARY INFORMATION:

Table of Contents

I. Today's Action
II. Background
III. Response to Comments
IV. Final Action
V. Statutory and Executive Order Reviews

I. Today's Action

    EPA is taking final action to approve revisions to the Kentucky SIP 
incorporating changes made to two Kentucky regulations: 401 KAR 50:045 
and 401 KAR 63:005. These revisions pertain to performance testing 
requirements and open burning, respectively, and are part of the 
Commonwealth's strategy to meet the NAAQS by reducing emissions of 
PM2.5 and ozone precursors. This final action also includes a response 
to a comment made on EPA's proposed rulemaking for this action, 
published January 17, 2007 (72 FR 1954).

II. Background

    On September 6, 2005, KDAQ submitted to EPA proposed SIP revisions 
for review and approval into the Kentucky SIP. The proposed revisions 
include changes made by Kentucky to its performance testing and open 
burning regulations, found at 401 KAR 50:045 and 401 KAR 63:005, 
respectively. Both sets of rules were already incorporated into the SIP 
and the September 6, 2005, revisions were updates to such rules. The 
rule changes proposed for inclusion in the SIP became state effective 
on July 13, 2005. 401 KAR 50:045, ``Performance Tests,'' provide 
guidelines for the methodology, testing conditions, and reporting 
requirements for sources required to undertake performance testing. The 
proposed revisions to 401 KAR 50:045 are essentially a recodification/
renumbering in order to maintain necessary performance testing 
requirements currently found in 401 KAR 50:016, which is being 
repealed. Since 401 KAR 50:016 was never incorporated into the Kentucky 
SIP, neither the September 6, 2005, SIP revision, nor this action is 
addressing the repeal; however, this action is approving those 
provisions that are being incorporated into 401 KAR 50:045 as a result 
of the repeal of 401 KAR 50:016. In addition to the recodification/
renumbering, some minor changes were made to 401 KAR 50:045. Minor 
changes made to 401 KAR 50:045 include: the option of submitting 
alternate Compliance Test Protocol forms, and correction of federal 
reference citations and typographical errors. These actions were taken 
as a result of comments received by Kentucky during the public hearing.
    401 KAR 63:005, ``Open Burning,'' was first incorporated into the 
Kentucky SIP on July 12, 1982 (47 FR 30059). The rule is structured 
such that open burning in general is prohibited unless certain 
conditions are met. These conditions are specified under Sections 4 and 
5 of 401 KAR 63:005. The proposed revisions, submitted on September 6, 
2005, were initiated because as written, the current regulation allowed 
open burning of garbage in backyard environments. Kentucky amended the 
rule to address the problems involving the disposal of debris from 
storms and of other similar items and the open burning of mixed 
household garbage, and clarified those instances when open burning is 
permitted. Additionally, the changes explicitly allow fires set by 
county or municipal governments to dispose of wood waste or clean 
lumber, which was implied in the previous rule. Restrictions to open 
burning still exist for those counties, or portions of counties, which 
are, or were previously designated nonattainment for the 1-hour ozone, 
8-hour ozone, PM10, or PM2.5 NAAQS. The changes to Kentucky's open 
burning rule also assist in the clarity and enforceability of the rule. 
The amendments to this rule clarify the types of materials that can be 
burned and the time and places that open burning can occur to minimize 
the impact on human health and the environment. The amendment also 
provides added flexibility for local and county governments in 
disposing of vegetative matter.
    The changes to both the performance testing and open burning rule 
are approvable into the Kentucky SIP pursuant to section 110 of the 
CAA.

III. Response to Comments

    EPA received comments from one commenter regarding the proposed 
revisions to the Kentucky SIP published on January 17, 2007 (72 FR 
1954). A summary of the adverse comments received on the proposed rule 
and EPA's response to the comments, is presented below.
    Comment: EPA should add the Credible Evidence Rule, either via a 
Federal Implementation Plan or a SIP Call, at the same time that EPA 
finalizes this SIP revision.
    Response: The September 6, 2005, SIP revision is specifically 
related to Kentucky rules regarding performance tests and open burning. 
The comment is not directly related to the Kentucky rules at issue in 
the September 6, 2005, SIP submittal. Nonetheless, on June 29, 2007, 
EPA issued a letter responding to a Petition for Rulemaking filed by 
the commenter regarding credible evidence and the Kentucky SIP. The 
June 29, 2007, letter denied commenter's petition for rulemaking and 
explained why EPA is not taking action, at this time, to require a 
revision to the Kentucky SIP regarding credible evidence.
    Comment: The Federal Register notice must include the complete text 
of the proposed SIP revision in order to allow for meaningful public 
participation.
    Response: EPA disagrees with commenter's position on the content of 
the Federal Register notice. Neither the CAA nor the Administrative 
Procedure Act mandates that the Federal Register notice of proposed 
rulemaking, or final rulemaking action, include the complete text of 
the proposed SIP revision. The January 17, 2007 (72 FR 1954) proposal 
satisfies the notice requirements by providing citations to the rules 
at issue, offering the SIP revision for public review, and describing 
the subjects and issues involved in the SIP revision. Publication in 
the Federal Register is costly and resource intensive; EPA makes every 
effort to provide key information in proposal notices while at the same 
time using Agency resources efficiently. EPA drafts rulemaking notices 
so as to enable public

[[Page 58761]]

understanding of the subjects and issues at hand. Should a member of 
the public wish to review the complete text of the SIP revision, 
instructions are provided in the notice of proposed rulemaking for how 
the SIP revision may be accessed. In addition, the public may also 
contact the listed contact for any further information or questions.
    Comment: The Kentucky SIP cannot allow waiving of performance 
testing; 401 KAR 50:045 Section 4(1)(d), (2)(d), and (3)(c) cannot be 
added into the Kentucky SIP.
    Response: The rule changes now being included into the Kentucky SIP 
regarding performance testing (401 KAR 50:045) are consistent with 
federal rules found at 40 CFR Part 63. The current changes are minimal; 
the rules previously included in the SIP contained the waiver 
provisions discussed by the commenter, so they are not new rules being 
proposed for inclusion into the SIP for the first time. Generally, 
rules are necessary to ensure compliance with any emission limitations 
included in the SIP. The waiver provisions noted by commenter are also 
included in the federal rule at 40 CFR 63.7(h). The waiver provisions 
in 40 CFR 63.7(h) are delegable to states pursuant to 40 CFR 63.91(g). 
EPA Region 4 has delegated the part 63 waiver authorities to the 
Commonwealth of Kentucky. Kentucky is authorized to implement the 
waiver provisions described in 401 KAR 50:045, consistent with the 
federal rules. Kentucky's rules require that both the Cabinet and EPA 
approve any waivers. As a result, Kentucky's rule has two layers of 
review and protection. With regard to 401 KAR 50:045(3)(c), this 
provision applies to sources that are not subject to standards 
promulgated under 40 CFR 60, 61, or 63. As a result, Kentucky has 
flexibility to implement its own waiver program, to the extent allowed 
by federal law, with regard to such sources. Notably, these waiver 
provisions apply only to performance testing and not to the underlying 
emissions limits--regulated entities must comply with emissions limits 
irrespective of any waivers for performance testing.

IV. Final Action

    EPA is taking final action to approve the proposed revisions 
including changes to 401 KAR 50:045 and 401 KAR 63:045. These revisions 
pertain to performance testing requirements and open burning, 
respectively, and are part of the Commonwealth's strategy to meet the 
NAAQS by reducing emissions of PM2.5 and ozone precursors. This final 
rule also addresses a comment made on EPA's proposed rulemaking for 
this action published January 17, 2007 (72 FR 1954).

V. 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 (Public Law 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 CAA. 
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 and 
because the Agency does not have reason to believe that the rule 
concerns an environmental health risk or safety risk that may 
disproportionately affect children.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. In this 
context, in the absence of a prior existing requirement for the 
Commonwealth 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 CAA. 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 CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by December 17, 2007. 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) of the CAA.)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping

[[Page 58762]]

requirements, Sulfur oxides, Volatile organic compounds.

    Dated: September 28, 2007.
J. I. Palmer, Jr.,
Regional Administrator, Region 4.

0
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

0
2. Section 52.920(c), Table 1 is amended by revising the entries for 
``401 KAR 50:045'' and ``401 KAR 63:005'' to read as follows:


Sec.  52.920  Identification of plan.

* * * * *
    (c) * * *

                                   Table 1.--EPA-Approved Kentucky Regulations
----------------------------------------------------------------------------------------------------------------
                                                          State
         State citation             Title/subject    effective date   EPA approval date        Explanation
----------------------------------------------------------------------------------------------------------------
                     Chapter 50 Division for Air Quality; General Administrative Procedures

                                                  * * * * * * *
401 KAR 50:045.................  Performance tests.        07/13/05  10/17/07 [Insert
                                                                      citation of
                                                                      publication].

                                                  * * * * * * *
                                  Chapter 63 General Standards of Performance

                                                  * * * * * * *
401 KAR 63:005.................  Open burning......        07/13/05  10/17/07 [Insert
                                                                      citation of
                                                                      publication].

                                                  * * * * * * *
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 [FR Doc. E7-20334 Filed 10-16-07; 8:45 am]

BILLING CODE 6560-50-P
