[Federal Register Volume 72, Number 200 (Wednesday, October 17, 2007)]
[Rules and Regulations]
[Pages 58759-58762]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-20334]
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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 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 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
[email protected].
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
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requirements, Sulfur oxides, Volatile organic compounds.
Dated: September 28, 2007.
J. I. Palmer, Jr.,
Regional Administrator, Region 4.
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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
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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
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State
State citation Title/subject effective date EPA approval date Explanation
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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