Approval and Promulgation of Implementation Plans for Kentucky: Air Permit Regulations, 52460-52464 [06-7415]
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a compensable evaluation based on a
decreased FEV–1/FVC ratio.
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
3. Section 4.100 is added to read as
follows:
[EPA–R04–OAR–2006–0337–200613(f);
FRL–8216–7]
§ 4.100 Application of the evaluation
criteria for diagnostic codes 7000–7007,
7011, and 7015–7020.
Approval and Promulgation of
Implementation Plans for Kentucky:
Air Permit Regulations
I
(a) Whether or not cardiac
hypertrophy or dilatation (documented
by electrocardiogram, echocardiogram,
or X-ray) is present and whether or not
there is a need for continuous
medication must be ascertained in all
cases.
(b) Even if the requirement for a 10%
(based on the need for continuous
medication) or 30% (based on the
presence of cardiac hypertrophy or
dilatation) evaluation is met, METs
testing is required in all cases except:
(1) When there is a medical
contraindication.
(2) When the left ventricular ejection
fraction has been measured and is 50%
or less.
(3) When chronic congestive heart
failure is present or there has been more
than one episode of congestive heart
failure within the past year.
(4) When a 100% evaluation can be
assigned on another basis.
(c) If left ventricular ejection fraction
(LVEF) testing is not of record, evaluate
based on the alternative criteria unless
the examiner states that the LVEF test is
needed in a particular case because the
available medical information does not
sufficiently reflect the severity of the
veteran’s cardiovascular disability.
4. Section 4.104, diagnostic code 7101
is amended by adding a Note (3) to read
as follows:
I
§ 4.104 Schedule of ratings—
cardiovascular system.
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7101
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Note (3): Evaluate hypertension separately
from hypertensive heart disease and other
types of heart disease.
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[FR Doc. E6–14732 Filed 9–5–06; 8:45 am]
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Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
SUMMARY: EPA is now taking final action
to approve two of four requested
revisions to the State Implementation
Plan (SIP) for the Commonwealth of
Kentucky submitted to EPA on March
15, 2001. The two revisions being
approved today regard two main
changes to Kentucky’s rules. The first
change involves the removal and
separation of rule 401 Kentucky
Administrative Regulations (KAR)
50:035 (‘‘Permits’’) into three separate
rules under a new Chapter 52 (Permits,
Registrations, and Prohibitory Rules).
Specifically, these rules are 52:001
(Definitions for 401 KAR Chapter 52),
52:030 (Federally-enforceable permits
for non-major sources), and 52:100
(‘‘Public, affected state, and U.S. EPA
review’’). The second change involves
corrections to grammatical errors in rule
50:032 (‘‘Prohibitory Rule for Hot Mix
Asphalt Plants’’) and the removal of rule
50:032 from Chapter 50 and adding it to
Chapter 52, under 52:090 (‘‘Prohibitory
Rule for Hot Mix Asphalt Plants’’). This
final action also responds to adverse
comments submitted in response to
EPA’s proposed rule published on
December 30, 2002. This final action
does not address the removal of 401
KAR 50:030 (‘‘Registration of Sources’’)
or changes made to 401 KAR 52:080
(‘‘Regulatory limit on potential to
emit’’), that was part of the March 15,
2001, submittal, but which will be
addressed in a separate action.
DATES: Effective Date: This rule will be
effective October 6, 2006.
ADDRESSES: EPA has established a
docket for this action under Docket
Identification No. EPA–R04–OAR–
2006–0337. 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., 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 through
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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 to 4:30,
excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT:
James Hou, 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) 562–8965.
Mr. Hou can also be reached via
electronic mail at Hou.James@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Today’s Action
II. Background
III. Comment and Response
IV. Final Action
V. Statutory and Executive Order Reviews
I. Today’s Action
EPA is now taking final action to
approve two of four requested revisions
to the (SIP) for the Commonwealth of
Kentucky submitted to EPA on March
15, 2001, and clarified in a letter dated
July 18, 2001. The SIP submittal and the
letter-clarification were submitted by
the Kentucky Department for
Environmental Protection, Division of
Air Quality. The two revisions being
approved today regard two main
changes to Kentucky’s rules. The first
change involves the removal and
separation of rule 401 Kentucky
Administrative Regulations (KAR)
50:035 (‘‘Permits’’) into three separate
rules under a new Chapter 52 (Permits,
Registrations, and Prohibitory Rules).
Specifically, these rules are 52:001
(Definitions for 401 KAR Chapter 52),
52:030 (‘‘Federally-enforceable permits
for non-major sources’’), and 52:100
(‘‘Public, affected state, and U.S. EPA
review’’). The second change involves
corrections to grammatical errors in rule
50:032 (‘‘Prohibitory Rule for Hot Mix
Asphalt Plants’’) and the removal of rule
50:032 from Chapter 50 and adding it to
Chapter 52, under 52:090 (‘‘Prohibitory
Rule for Hot Mix Asphalt Plants’’).
Today’s final action also responds to
one set of adverse comments submitted
in response to EPA’s proposed rule
published on December 30, 2002 (67 FR
79543). Today’s final action does not
address the removal of 401 KAR 50:030
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(‘‘Registration of Sources’’) or changes
made to 401 KAR 52:080 (‘‘Regulatory
limit on potential to emit’’), which will
be addressed in a separate action.
Therefore, today’s final action approves
a total of four rules into the Kentucky
SIP; 401 KAR 52:001, 401 KAR 52:030,
401 KAR 52:090, and 401 KAR 52:100
and the removal of rules 401 KAR
50:032 and 401 KAR 50:035. This final
action is consistent with section 110 of
the Clean Air Act.
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II. Background
On December 30, 2002, EPA
simultaneously published a proposed
rule (67 FR 79543, December 30, 2002)
and a direct final rule (67 FR 79523,
December 30, 2002) to approve the
above described revisions to the
Kentucky SIP, submitted by Kentucky
on March 15, 2001. Because EPA
received one set of adverse comments
during the public comment period, EPA
withdrew the direct final rule on
February 10, 2003 (68 FR 6629). Today,
EPA is taking final action on the
Kentucky SIP revisions proposed for
approval on December 30, 2002, as well
as responding to the set of adverse
comments received on that proposed
action, with the exception of the
portions of the March 15, 2001,
submittal noted above.
III. Response to Comments
EPA received comments from one
commenter who opposed the proposed
revision to the Kentucky SIP published
on December 30, 2002 (67 FR 79543). A
summary of the adverse comments
received on the proposed rule and
EPA’s response to the comments, is
presented below.
Comment: The commenter requests
that EPA: (1) Reject approval of 401
KAR 52:001 and 401 KAR 52:100 and
reject incorporation of these provisions
into 40 Code of Federal Regulations
(CFR) Part 52, Subpart S; (2) provide an
additional comment period if EPA
proposes to approve any non-emergency
amendment of 40 CFR part 52, subpart
S; (3) command that all prevention of
significant deterioration (PSD) portions
of 40 CFR part 124 apply to PSD
permitting actions by Kentucky; and (4)
cancel all authority that EPA gave to
Kentucky to issue PSD permits.
Response: The following response
will address each of the issues raised in
the above comment in turn. First, the
provisions contained in 401 KAR 52:001
(‘‘Definitions for 401 KAR Chapter 52’’)
and 401 KAR 52:100 (‘‘Public, affected
state, and U.S. EPA review’’) are
required to be a part of the Kentucky
SIP. Both the definitions and the public
review provisions are consistent with
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federal requirements for the programs to
which they apply. Therefore, the
proposed rules are approvable into the
Kentucky SIP. As a point of
clarification, 401 KAR 52:001 and
52:100 relate specifically to Kentucky’s
Clean Air Act (CAA) title V permit
program and Kentucky’s Federally
Enforceable State Operating Permit
(FESOP) program. Kentucky’s PSD
permit rules, found in 401 KAR Chapter
51, refer to the public review provisions
of 401 KAR 52:100, but only to the
extent that such provisions are more
stringent than the public review
provisions found in the federal rule, 40
CFR 51.166(q).
Second, the Kentucky SIP, like many
other SIPs, is regularly amended. Most
recently, EPA proposed revisions to the
Kentucky SIP on February 10, 2006 (71
FR 6988). This revision dealt
specifically with Kentucky’s PSD
regulations. No public comments were
received. The commenter failed to state
any reason why the comment period for
the present proposal (67 FR 79543)
should be reopened.
Third, the commenter’s request to
expand the applicability of 40 CFR part
124 is not relevant to the present action
which does not propose any changes to
40 CFR part 124. 40 CFR part 124
governs EPA procedures for certain
permit actions (e.g., issuance,
termination), but it does not apply to
PSD permits issued by approved state
agencies (40 CFR 124.1(e)). Rather, the
public review procedures of PSD
permits issued by an approved state are
governed by 40 CFR 51.166(q).
Kentucky’s PSD regulations (401 KAR
51:017) require that Kentucky follow the
public review procedures in 40 CFR
51.166(q), and any more stringent
requirements existing in 401 KAR
52:100.
Fourth, the present action does not
relate to Kentucky’s authority to issue
PSD permits, and therefore, EPA cannot
‘‘cancel’’ Kentucky’s authority to issue
PSD permits at this time.
Comment: EPA must act to provide a
‘‘swift and certain remedy,’’ (1) where
KAR is different from 40 CFR 52.21(b)
through (w); or (2) where KAR provides
less effective technical environmental
protection, less effective opportunity for
public participation in the permitting
process, or less effective legal forums
and processes for review of questioned
decisions.
Response: The proposed SIP revision
at issue (67 FR 79543) relates only to
specific portions of the KAR and it does
not relate to Kentucky’s PSD
regulations. Therefore, the comment is
not relevant to the proposed action.
Nonetheless, as a point of clarification,
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40 CFR 52.21 contains the Federal PSD
program (i.e., if EPA were administering
the PSD program). States may meet the
requirements of the federal regulations
with different but equivalent rules. As
noted earlier, Kentucky recently revised
its PSD program. That revision was
noticed in the Federal Register and no
public comments were received. It is not
clear from the comment what ‘‘swift and
certain remedy’’ the commenter requests
EPA to take, but the comment is not
relevant to the proposed action at issue
at this time.
Comment: 401 KAR 52:100 is patently
and callously contemptuous of the
intent of the Federal Clean Air Act.
Response: The commenter fails to
provide information demonstrating how
401 KAR 52:100 is ‘‘contemptuous’’ of
the Clean Air Act (CAA). 401 KAR
52:100 is consistent with federal
regulations promulgated pursuant to
EPA’s authority under the Clean Air
Act.
Comment: There appears to be no
parallel in the CAA or the CFR to 401
KAR 52:100, Section 2(3)(c), which
grants the applicant ten (10) days of
exclusive lawful speech. The
commenter believes that this provision
is not consistent with the CAA and 40
CFR 124.13. The commenter also
believes that if the applicant cannot
comment within the same timeframe as
the public, then the PSD permit should
not be issued to the applicant.
Response: As noted earlier, the
provisions included in 40 CFR part 124
do not apply to the issuance of PSD
permits by approved states. With regard
to the comment about 401 KAR 52:100,
Section 2(3)(c), a state may satisfy the
Federal regulations with different but
equivalent regulations, and a state may
include additional procedures not
included in the Federal regulations so
long as the rule is not less stringent.
This provision is not less stringent and
does not impact the public’s ability to
comment on the proposed action. 401
KAR 52:100 is equivalent to the Federal
regulations for the programs to which it
applies and it is approvable into the
Kentucky SIP.
As a point of clarification, this
additional comment period is not an
opportunity for the applicant to
comment on the proposed permit, but
rather, an opportunity for the applicant
to respond to public comments received
during the public comment period. This
response to comments by the applicant
is discretionary (i.e., the applicant may
or may not actually provide such
comments). Further, the response by the
applicant is useful for both the
reviewing agency and the public
because it establishes a forum in which
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the applicant is responding to the
public’s concerns. The response to
comments document is made part of the
public record. Many state permitting
programs include this provision to
allow for a forum in which the applicant
can respond to public comments and
assist in public understanding of the
issues in the application.
Comment: There appears to be no
effective provision in 401 KAR 52:100
for extension of comment time. The
commenter references 40 CFR 124.13,
which allows for a comment period
longer than 30 days to give reasonable
opportunity to reply if such a need for
time is demonstrated.
Response: As a general matter, the
provisions of 40 CFR part 124 apply
only to EPA and not to approved states.
For state approved programs, such as
CAA title V or PSD permit programs, the
applicable public participation
regulations are found in the federal
regulations applicable to that specific
state approved program. For example,
for title V purposes, state programs must
comply with the public participation
provisions described in 40 CFR part 70;
for PSD purposes, state programs must
comply with the public participation
provisions described in 40 CFR
51.166(q). 401 KAR 52:100 is consistent
with the federal regulations for the
programs to which it applies.
Comment: The commenter expresses
that Section 3 of 401 KAR 52:100 is
written as if a public hearing is optional.
The commenter refers to the CAA and
suggests that a hearing is obligated for
many PSD matters.
Response: Kentucky’s PSD regulations
(401 KAR 51:017) require that the
permitting authority follow the
applicable procedures of 40 CFR
51.166(q) and 401 KAR 52:100.
Comment: The commenter states that
citizens, in an area where a new major
source is to be located or where an
existing source is requesting a major
modification, should be entitled and
informed of the public participation
process including five elements. These
elements obligate a hearing if there is a
request; affords time, such as at least 30
calendar days prior to the hearing
during which citizens may familiarize
themselves with the draft, the technical
support of the draft, and the application;
grant to anyone who makes some cogent
timely comment, the legal standing right
to appeal any issue raised by anyone’s
cogent timely comment; obligate that if
a cogent technical comment is made
orally at the hearing, that it has the full
force of law and that it need not be
submitted by the speaker in writing in
order to be an item preserved for review
(although encouraging written
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submissions for accuracy and courtesy
to the permitting agency is proper), and;
afford time, such as at least 12 calendar
days following the hearing, during
which citizens may timely file written
comment on the draft after having had
the opportunity to have heard the
matters expressed in the hearing. The
commenter further requests that EPA
initiate rulemaking for various
regulatory permit programs to ‘‘codify’’
certain public participation elements.
Response: With regard to the actions
at issue at this time, Kentucky’s
provisions are equivalent to applicable
federal regulations. Therefore,
Kentucky’s rules proposed for inclusion
into the SIP are approvable by EPA.
Comment: The commenter expresses
that Section 5 of 401 KAR 52:100 does
not contain ‘‘identical, synonymous, or
superior text as a notice requirement.’’
The commenter points to a January 2002
legal notice published by the Kentucky
Division for Air Quality (KDAQ) as an
example of a deficient public notice.
Response: In accordance with
Kentucky’s rules, public notice and
participation on PSD permits is
governed by 40 CFR 51.166(q). It is
unclear whether the commenter believes
that the KDAQ January 2002 legal notice
fails to comply with the provisions in
the Kentucky rules which apply to such
notices. Nonetheless, the SIP action
proposed by EPA on December 30, 2002,
does not relate to the January 2002
public notice on a PSD permit discussed
by the commenter. Comments regarding
specific PSD permits and corresponding
public notices should be raised during
the public comment period on that
permit and addressed to the agency
responsible for issuing that permit. This
comment is not relevant to the action at
issue at this time.
Comment: The commenter asserts that
the requirements of 40 CFR 51.166 are
‘‘terse to the point of near
meaninglessness’’ and do not comply
with Congressional intent for public
participation. The commenter makes a
similar statement regarding portions of
40 CFR part 124. The commenter gives
specific examples of what a public
notice could include.
Response: Neither of the provisions
cited by the commenter are at issue in
this final action regarding Kentucky’s
SIP. Both provisions are final federal
rules that have been in effect for years.
Comments regarding federal rules
should have been provided within the
timeframes for challenging such rules
(i.e., when EPA proposes changes to
federal rules, comments must be
submitted within the stated timeframes
in order to be considered by EPA for
that rulemaking). The present action
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will have no impact on 40 CFR 51.166
or 40 CFR part 124.
Comment: The commenter notes that
Section 2(4) of 401 KAR 52:100 will
make public comments available upon
request and believes the comments may
be abridged, which does not meet the
requirements set forth in 40 CFR 51.166.
Response: The commenter appears
confused about the application of 401
KAR 52:100 to different air permit
programs. As noted earlier, Kentucky’s
PSD permitting regulations require that
the permitting authority follow the
provisions described in 40 CFR 51.166
for public participation. 401 KAR
52:100 applies specifically to CAA title
V operating permits (401 KAR 52:020)
and Federally Enforceable State
Operating Permits (FESOPs) (401 KAR
52:030). The language included in 401
KAR 52:100 is equivalent to federal
regulations regarding public
participation for the programs to which
it applies. Therefore, the regulations
proposed by Kentucky for inclusion in
the Kentucky SIP are approvable.
Comment: The commenter states that
much of 401 KAR 52:001 does not meet
requirements established in 40 CFR
51.166(a). The commenter identifies
several examples where the commenter
believes that definitions in 401 KAR
52:001 are less stringent than the federal
definitions, or otherwise problematic.
As examples, the commenter cites to the
definition of ‘‘electric utility steam
generating unit,’’ ‘‘commence,’’ and
‘‘major modification.’’
Response: Kentucky’s PSD permitting
definitions are found in 401 KAR
51:001, not 52:001. Kentucky’s rules,
including 401 KAR 52:001, are
equivalent to the applicable federal
regulations, and are approvable into the
Kentucky SIP. Notably, the definitions
included in Kentucky’s PSD permit
program (401 KAR Chapter 51) were
recently revised by Kentucky to include
new regulations promulgated by EPA in
December, 2002. EPA published a notice
regarding Kentucky’s PSD program in
the Federal Register on February 10,
2006 (71 FR 9688); no public comments
were received on that proposed action.
EPA took final action to approve those
changes on July 11, 2006 (71 FR 38990).
Comment: With regard to a statement
in 67 FR 79524 (the direct final rule that
was withdrawn), the commenter states
that ‘‘[t]he people are reasonably
entitled to review EPA’s work again
prior to EPA granting any additional
misplaced authority to a rogue state.’’
Response: The procedure followed by
EPA in the present action included the
simultaneous publication of both a
direct final rule (67 FR 79524, December
30, 2002) and a proposed rule (67 FR
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79543, December 30, 2002). As noted in
the direct final action, when EPA
receives adverse comments on direct
final rules, EPA withdraws the direct
final rule and issues a final rule based
on the simultaneously published
proposed rule. EPA withdrew the direct
final rule on February 10, 2003 (68 FR
6629). EPA’s review of the proposed SIP
revision by Kentucky was
comprehensive. EPA is now taking final
action based on the proposal, and
addressing the one set of adverse
comments received on the proposed
action.
Comment: The commenter states that
67 FR 79523 and 79543 are devoid of
explanation for the proposed addition of
401 KAR 52:001 and 401 KAR 52:100.
The commenter further notes that 40
CFR part 52, subpart S is defective.
Response: EPA disagrees with the
commenter’s statement. The two
Federal Register notices cited by the
commenter include specific information
regarding what actions are being taken
by EPA. The Kentucky SIP contains
rules that are equivalent to the
applicable Federal rules. The
commenter fails to provide any reason
why 40 CFR part 52, subpart S is
defective.
Comment: The commenter states that
Kentucky should be sanctioned for
having acted in contempt of the CAA.
Response: The commenter has not
provided any information
demonstrating how Kentucky has acted
in ‘‘contempt’’ of the CAA. This
comment does not appear relevant to
the action proposed by EPA regarding
the Kentucky SIP. EPA disagrees with
the commenter’s conclusion regarding
sanctions.
Comment: The commenter states that
there can be no doubt that Kentucky
knowingly and intentionally submitted
to EPA rules that provide less effective
technical environmental protection; less
effective opportunity for informed
public participation in the permitting
process; and less effective legal forums
and processes for review of questioned
decisions than that given to those where
40 CFR 52.21 and 40 CFR part 124 are
fully applicable to PSD permits.
Response: EPA has no information or
evidence suggesting that Kentucky has
knowingly and intentionally violated
any provision of the CAA or its
implementing regulations. As noted
earlier, 40 CFR part 124 does not apply
to PSD permits issued by state
permitting authorities and likewise, the
provisions in 40 CFR 52.21 govern only
EPA issuance of PSD permits.
Comment: The commenter appears to
state concern regarding the time that
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EPA took to review the Kentucky SIP
revision at issue.
Response: In reviewing the Kentucky
SIP revision at issue, EPA followed its
SIP processing guidance, its regulations
at 40 CFR part 51, Appendix V, and the
requirements of Section 110 of the Clean
Air Act.
IV. Final Action
EPA is now taking final action to
approve two of four requested revisions
to the SIP for the Commonwealth of
Kentucky submitted to EPA on March
15, 2001. The first revision being
approved regards the removal and
separation of rule 401 Kentucky
Administrative Regulations (KAR)
50:035 (‘‘Permits’’) into three separate
rules under a new Chapter 52 (Permits,
Registrations, and Prohibitory Rules).
Specifically, these rules are 52:001
(Definitions for 401 KAR Chapter 52),
52:030 (Federally-enforceable permits
for non-major sources), and 52:100
(‘‘Public, affected state, and U.S. EPA
review’’). The second change involves
corrections to grammatical errors in rule
50:032 (‘‘Prohibitory Rule for Hot Mix
Asphalt Plants’’) and the removal of rule
50:032 from Chapter 50 and adding it to
Chapter 52, under 52:090 (‘‘Prohibitory
Rule for Hot Mix Asphalt Plants’’).
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
(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
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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 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 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).
E:\FR\FM\06SER1.SGM
06SER1
52464
Federal Register / Vol. 71, No. 172 / Wednesday, September 6, 2006 / Rules and Regulations
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 November 6,
2006. 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 Clean Air
Act section 307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Ozone, Reporting and
recordkeeping requirements, Volatile
organic compounds.
Dated: August 25, 2006.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
I
40 CFR part 52 is amended as follows:
PART 52—[AMENDED]
1. The authority citation for part 52
continues to read as follows:
I
Authority: 42 U.S.C. 7401 et seq.
a. In paragraph (c) by removing entries
for 401 KAR 50:035 titled ‘‘Permits’’ and
401 KAR 50:032 titled ‘‘Prohibitory rule
for hot mix asphalt plants’’,
I b. In paragraph (c) adding in
numerical order a new chapter heading
‘‘Chapter 52 Permits, Registrations, and
Prohibitory Rules’’ and entries for 401
KAR 52:001 titled ‘‘Definitions for 401
KAR Chapter 52’’, 401 KAR 52:030
titled ‘‘Federally enforceable permits for
non-major sources’’, 401 KAR 52:090
titled ‘‘Prohibitory rule for hot mix
asphalt plants’’ and 401 KAR 52:100
titled ‘‘Public, affected state, and U.S.
EPA review’’ to read as follows:
I
Subpart S—Kentucky
§ 52.920
2. Section 52.920(c) Table 1 is
amended:
*
I
Identification of plan.
*
*
(c) * * *
*
*
TABLE 1.—EPA-APPROVED KENTUCKY REGULATIONS
State citation
State effective date
Title/subject
*
*
*
*
*
Chapter 52 Permits, Registrations, and Prohibitory Rules
401 KAR 52:001 ................
Definitions for 401 KAR Chapter 52 .............................
01/15/01
401 KAR 52:030 ................
Federally enforceable permits for non-major sources ..
01/15/01
401 KAR 52:090 ................
Prohibitory rule for hot mix asphalt plants ....................
01/15/01
401 KAR 52:100 ................
Public, affected state, and U.S. EPA review ................
01/15/01
*
*
*
*
*
*
*
*
[FR Doc. 06–7415 Filed 9–5–06; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R05–OAR–2006–0436; FRL–8214–2]
Approval and Promulgation of Air
Quality Implementation Plans; Illinois;
Ford Motor Company Adjusted
Standard
Environmental Protection
Agency (EPA).
ACTION: Direct final rule.
jlentini on PROD1PC65 with RULES
AGENCY:
SUMMARY: The Environmental Protection
Agency (EPA) is approving a January 4,
2006, request from Illinois for a site
specific revision to the State
Implementation Plan (SIP) for the Ford
Motor Company (Ford). The revision
will allow Ford to discontinue use of its
Stage II vapor recovery system (Stage II)
VerDate Aug<31>2005
16:42 Sep 05, 2006
EPA approval date
Jkt 205001
*
Frm 00062
Fmt 4700
09/06/06 [Insert
publication].
09/06/06 [Insert
publication].
09/06/06 [Insert
publication].
09/06/06 [Insert
publication].
*
at its Chicago Assembly Plant. In place
of Stage II, Ford will comply with the
standards of the federal onboard
refueling vapor recovery (ORVR)
regulations, as well as meet other minor
conditions. The exclusive use of ORVR
will provide at least an equivalent
amount of gasoline vapor capture as
Stage II.
DATES: This direct final rule will be
effective November 6, 2006, unless EPA
receives adverse comments by October
6, 2006. If adverse comments are
received, EPA will publish a timely
withdrawal of the direct final rule in the
Federal Register informing the public
that the rule will not take effect.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R05–
OAR–2006–0436, by one of the
following methods:
• https://www.regulations.gov: Follow
the on-line instructions for submitting
comments.
• E-mail: mooney.john@epa.gov.
• Fax: (312) 886–5824.
• Mail: John M. Mooney, Chief,
Criteria Pollutant Section, Air Programs
PO 00000
*
Sfmt 4700
*
Explanation
*
citation of
citation of
citation of
citation of
*
Branch (AR–18J), U.S. Environmental
Protection Agency, 77 West Jackson
Boulevard, Chicago, Illinois 60604.
• Hand Delivery: John M. Mooney,
Chief, Criteria Pollutant Section, Air
Programs Branch (AR–18J), U.S.
Environmental Protection Agency, 77
West Jackson Boulevard, Chicago,
Illinois 60604. Such deliveries are only
accepted during the Regional Office
normal hours of operation, and special
arrangements should be made for
deliveries of boxed information. The
Regional Office official hours of
business are Monday through Friday,
8:30 a.m. to 4:30 p.m. excluding Federal
holidays.
Instructions: Direct your comments to
Docket ID No. EPA–R05–OAR–2006–
0436. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at https://
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
E:\FR\FM\06SER1.SGM
06SER1
]]>Agencies
[Federal Register Volume 71, Number 172 (Wednesday, September 6, 2006)]
[Rules and Regulations]
[Pages 52460-52464]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2006-0337-200613(f); FRL-8216-7]
Approval and Promulgation of Implementation Plans for Kentucky:
Air Permit Regulations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is now taking final action to approve two of four
requested revisions to the State Implementation Plan (SIP) for the
Commonwealth of Kentucky submitted to EPA on March 15, 2001. The two
revisions being approved today regard two main changes to Kentucky's
rules. The first change involves the removal and separation of rule 401
Kentucky Administrative Regulations (KAR) 50:035 (``Permits'') into
three separate rules under a new Chapter 52 (Permits, Registrations,
and Prohibitory Rules). Specifically, these rules are 52:001
(Definitions for 401 KAR Chapter 52), 52:030 (Federally-enforceable
permits for non-major sources), and 52:100 (``Public, affected state,
and U.S. EPA review''). The second change involves corrections to
grammatical errors in rule 50:032 (``Prohibitory Rule for Hot Mix
Asphalt Plants'') and the removal of rule 50:032 from Chapter 50 and
adding it to Chapter 52, under 52:090 (``Prohibitory Rule for Hot Mix
Asphalt Plants''). This final action also responds to adverse comments
submitted in response to EPA's proposed rule published on December 30,
2002. This final action does not address the removal of 401 KAR 50:030
(``Registration of Sources'') or changes made to 401 KAR 52:080
(``Regulatory limit on potential to emit''), that was part of the March
15, 2001, submittal, but which will be addressed in a separate action.
DATES: Effective Date: This rule will be effective October 6, 2006.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R04-OAR-2006-0337. 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., 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 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 to 4:30,
excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT: James Hou, 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)
562-8965. Mr. Hou can also be reached via electronic mail at
Hou.James@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Today's Action
II. Background
III. Comment and Response
IV. Final Action
V. Statutory and Executive Order Reviews
I. Today's Action
EPA is now taking final action to approve two of four requested
revisions to the (SIP) for the Commonwealth of Kentucky submitted to
EPA on March 15, 2001, and clarified in a letter dated July 18, 2001.
The SIP submittal and the letter-clarification were submitted by the
Kentucky Department for Environmental Protection, Division of Air
Quality. The two revisions being approved today regard two main changes
to Kentucky's rules. The first change involves the removal and
separation of rule 401 Kentucky Administrative Regulations (KAR) 50:035
(``Permits'') into three separate rules under a new Chapter 52
(Permits, Registrations, and Prohibitory Rules). Specifically, these
rules are 52:001 (Definitions for 401 KAR Chapter 52), 52:030
(``Federally-enforceable permits for non-major sources''), and 52:100
(``Public, affected state, and U.S. EPA review''). The second change
involves corrections to grammatical errors in rule 50:032
(``Prohibitory Rule for Hot Mix Asphalt Plants'') and the removal of
rule 50:032 from Chapter 50 and adding it to Chapter 52, under 52:090
(``Prohibitory Rule for Hot Mix Asphalt Plants''). Today's final action
also responds to one set of adverse comments submitted in response to
EPA's proposed rule published on December 30, 2002 (67 FR 79543).
Today's final action does not address the removal of 401 KAR 50:030
[[Page 52461]]
(``Registration of Sources'') or changes made to 401 KAR 52:080
(``Regulatory limit on potential to emit''), which will be addressed in
a separate action. Therefore, today's final action approves a total of
four rules into the Kentucky SIP; 401 KAR 52:001, 401 KAR 52:030, 401
KAR 52:090, and 401 KAR 52:100 and the removal of rules 401 KAR 50:032
and 401 KAR 50:035. This final action is consistent with section 110 of
the Clean Air Act.
II. Background
On December 30, 2002, EPA simultaneously published a proposed rule
(67 FR 79543, December 30, 2002) and a direct final rule (67 FR 79523,
December 30, 2002) to approve the above described revisions to the
Kentucky SIP, submitted by Kentucky on March 15, 2001. Because EPA
received one set of adverse comments during the public comment period,
EPA withdrew the direct final rule on February 10, 2003 (68 FR 6629).
Today, EPA is taking final action on the Kentucky SIP revisions
proposed for approval on December 30, 2002, as well as responding to
the set of adverse comments received on that proposed action, with the
exception of the portions of the March 15, 2001, submittal noted above.
III. Response to Comments
EPA received comments from one commenter who opposed the proposed
revision to the Kentucky SIP published on December 30, 2002 (67 FR
79543). A summary of the adverse comments received on the proposed rule
and EPA's response to the comments, is presented below.
Comment: The commenter requests that EPA: (1) Reject approval of
401 KAR 52:001 and 401 KAR 52:100 and reject incorporation of these
provisions into 40 Code of Federal Regulations (CFR) Part 52, Subpart
S; (2) provide an additional comment period if EPA proposes to approve
any non-emergency amendment of 40 CFR part 52, subpart S; (3) command
that all prevention of significant deterioration (PSD) portions of 40
CFR part 124 apply to PSD permitting actions by Kentucky; and (4)
cancel all authority that EPA gave to Kentucky to issue PSD permits.
Response: The following response will address each of the issues
raised in the above comment in turn. First, the provisions contained in
401 KAR 52:001 (``Definitions for 401 KAR Chapter 52'') and 401 KAR
52:100 (``Public, affected state, and U.S. EPA review'') are required
to be a part of the Kentucky SIP. Both the definitions and the public
review provisions are consistent with federal requirements for the
programs to which they apply. Therefore, the proposed rules are
approvable into the Kentucky SIP. As a point of clarification, 401 KAR
52:001 and 52:100 relate specifically to Kentucky's Clean Air Act (CAA)
title V permit program and Kentucky's Federally Enforceable State
Operating Permit (FESOP) program. Kentucky's PSD permit rules, found in
401 KAR Chapter 51, refer to the public review provisions of 401 KAR
52:100, but only to the extent that such provisions are more stringent
than the public review provisions found in the federal rule, 40 CFR
51.166(q).
Second, the Kentucky SIP, like many other SIPs, is regularly
amended. Most recently, EPA proposed revisions to the Kentucky SIP on
February 10, 2006 (71 FR 6988). This revision dealt specifically with
Kentucky's PSD regulations. No public comments were received. The
commenter failed to state any reason why the comment period for the
present proposal (67 FR 79543) should be reopened.
Third, the commenter's request to expand the applicability of 40
CFR part 124 is not relevant to the present action which does not
propose any changes to 40 CFR part 124. 40 CFR part 124 governs EPA
procedures for certain permit actions (e.g., issuance, termination),
but it does not apply to PSD permits issued by approved state agencies
(40 CFR 124.1(e)). Rather, the public review procedures of PSD permits
issued by an approved state are governed by 40 CFR 51.166(q).
Kentucky's PSD regulations (401 KAR 51:017) require that Kentucky
follow the public review procedures in 40 CFR 51.166(q), and any more
stringent requirements existing in 401 KAR 52:100.
Fourth, the present action does not relate to Kentucky's authority
to issue PSD permits, and therefore, EPA cannot ``cancel'' Kentucky's
authority to issue PSD permits at this time.
Comment: EPA must act to provide a ``swift and certain remedy,''
(1) where KAR is different from 40 CFR 52.21(b) through (w); or (2)
where KAR provides less effective technical environmental protection,
less effective opportunity for public participation in the permitting
process, or less effective legal forums and processes for review of
questioned decisions.
Response: The proposed SIP revision at issue (67 FR 79543) relates
only to specific portions of the KAR and it does not relate to
Kentucky's PSD regulations. Therefore, the comment is not relevant to
the proposed action. Nonetheless, as a point of clarification, 40 CFR
52.21 contains the Federal PSD program (i.e., if EPA were administering
the PSD program). States may meet the requirements of the federal
regulations with different but equivalent rules. As noted earlier,
Kentucky recently revised its PSD program. That revision was noticed in
the Federal Register and no public comments were received. It is not
clear from the comment what ``swift and certain remedy'' the commenter
requests EPA to take, but the comment is not relevant to the proposed
action at issue at this time.
Comment: 401 KAR 52:100 is patently and callously contemptuous of
the intent of the Federal Clean Air Act.
Response: The commenter fails to provide information demonstrating
how 401 KAR 52:100 is ``contemptuous'' of the Clean Air Act (CAA). 401
KAR 52:100 is consistent with federal regulations promulgated pursuant
to EPA's authority under the Clean Air Act.
Comment: There appears to be no parallel in the CAA or the CFR to
401 KAR 52:100, Section 2(3)(c), which grants the applicant ten (10)
days of exclusive lawful speech. The commenter believes that this
provision is not consistent with the CAA and 40 CFR 124.13. The
commenter also believes that if the applicant cannot comment within the
same timeframe as the public, then the PSD permit should not be issued
to the applicant.
Response: As noted earlier, the provisions included in 40 CFR part
124 do not apply to the issuance of PSD permits by approved states.
With regard to the comment about 401 KAR 52:100, Section 2(3)(c), a
state may satisfy the Federal regulations with different but equivalent
regulations, and a state may include additional procedures not included
in the Federal regulations so long as the rule is not less stringent.
This provision is not less stringent and does not impact the public's
ability to comment on the proposed action. 401 KAR 52:100 is equivalent
to the Federal regulations for the programs to which it applies and it
is approvable into the Kentucky SIP.
As a point of clarification, this additional comment period is not
an opportunity for the applicant to comment on the proposed permit, but
rather, an opportunity for the applicant to respond to public comments
received during the public comment period. This response to comments by
the applicant is discretionary (i.e., the applicant may or may not
actually provide such comments). Further, the response by the applicant
is useful for both the reviewing agency and the public because it
establishes a forum in which
[[Page 52462]]
the applicant is responding to the public's concerns. The response to
comments document is made part of the public record. Many state
permitting programs include this provision to allow for a forum in
which the applicant can respond to public comments and assist in public
understanding of the issues in the application.
Comment: There appears to be no effective provision in 401 KAR
52:100 for extension of comment time. The commenter references 40 CFR
124.13, which allows for a comment period longer than 30 days to give
reasonable opportunity to reply if such a need for time is
demonstrated.
Response: As a general matter, the provisions of 40 CFR part 124
apply only to EPA and not to approved states. For state approved
programs, such as CAA title V or PSD permit programs, the applicable
public participation regulations are found in the federal regulations
applicable to that specific state approved program. For example, for
title V purposes, state programs must comply with the public
participation provisions described in 40 CFR part 70; for PSD purposes,
state programs must comply with the public participation provisions
described in 40 CFR 51.166(q). 401 KAR 52:100 is consistent with the
federal regulations for the programs to which it applies.
Comment: The commenter expresses that Section 3 of 401 KAR 52:100
is written as if a public hearing is optional. The commenter refers to
the CAA and suggests that a hearing is obligated for many PSD matters.
Response: Kentucky's PSD regulations (401 KAR 51:017) require that
the permitting authority follow the applicable procedures of 40 CFR
51.166(q) and 401 KAR 52:100.
Comment: The commenter states that citizens, in an area where a new
major source is to be located or where an existing source is requesting
a major modification, should be entitled and informed of the public
participation process including five elements. These elements obligate
a hearing if there is a request; affords time, such as at least 30
calendar days prior to the hearing during which citizens may
familiarize themselves with the draft, the technical support of the
draft, and the application; grant to anyone who makes some cogent
timely comment, the legal standing right to appeal any issue raised by
anyone's cogent timely comment; obligate that if a cogent technical
comment is made orally at the hearing, that it has the full force of
law and that it need not be submitted by the speaker in writing in
order to be an item preserved for review (although encouraging written
submissions for accuracy and courtesy to the permitting agency is
proper), and; afford time, such as at least 12 calendar days following
the hearing, during which citizens may timely file written comment on
the draft after having had the opportunity to have heard the matters
expressed in the hearing. The commenter further requests that EPA
initiate rulemaking for various regulatory permit programs to
``codify'' certain public participation elements.
Response: With regard to the actions at issue at this time,
Kentucky's provisions are equivalent to applicable federal regulations.
Therefore, Kentucky's rules proposed for inclusion into the SIP are
approvable by EPA.
Comment: The commenter expresses that Section 5 of 401 KAR 52:100
does not contain ``identical, synonymous, or superior text as a notice
requirement.'' The commenter points to a January 2002 legal notice
published by the Kentucky Division for Air Quality (KDAQ) as an example
of a deficient public notice.
Response: In accordance with Kentucky's rules, public notice and
participation on PSD permits is governed by 40 CFR 51.166(q). It is
unclear whether the commenter believes that the KDAQ January 2002 legal
notice fails to comply with the provisions in the Kentucky rules which
apply to such notices. Nonetheless, the SIP action proposed by EPA on
December 30, 2002, does not relate to the January 2002 public notice on
a PSD permit discussed by the commenter. Comments regarding specific
PSD permits and corresponding public notices should be raised during
the public comment period on that permit and addressed to the agency
responsible for issuing that permit. This comment is not relevant to
the action at issue at this time.
Comment: The commenter asserts that the requirements of 40 CFR
51.166 are ``terse to the point of near meaninglessness'' and do not
comply with Congressional intent for public participation. The
commenter makes a similar statement regarding portions of 40 CFR part
124. The commenter gives specific examples of what a public notice
could include.
Response: Neither of the provisions cited by the commenter are at
issue in this final action regarding Kentucky's SIP. Both provisions
are final federal rules that have been in effect for years. Comments
regarding federal rules should have been provided within the timeframes
for challenging such rules (i.e., when EPA proposes changes to federal
rules, comments must be submitted within the stated timeframes in order
to be considered by EPA for that rulemaking). The present action will
have no impact on 40 CFR 51.166 or 40 CFR part 124.
Comment: The commenter notes that Section 2(4) of 401 KAR 52:100
will make public comments available upon request and believes the
comments may be abridged, which does not meet the requirements set
forth in 40 CFR 51.166.
Response: The commenter appears confused about the application of
401 KAR 52:100 to different air permit programs. As noted earlier,
Kentucky's PSD permitting regulations require that the permitting
authority follow the provisions described in 40 CFR 51.166 for public
participation. 401 KAR 52:100 applies specifically to CAA title V
operating permits (401 KAR 52:020) and Federally Enforceable State
Operating Permits (FESOPs) (401 KAR 52:030). The language included in
401 KAR 52:100 is equivalent to federal regulations regarding public
participation for the programs to which it applies. Therefore, the
regulations proposed by Kentucky for inclusion in the Kentucky SIP are
approvable.
Comment: The commenter states that much of 401 KAR 52:001 does not
meet requirements established in 40 CFR 51.166(a). The commenter
identifies several examples where the commenter believes that
definitions in 401 KAR 52:001 are less stringent than the federal
definitions, or otherwise problematic. As examples, the commenter cites
to the definition of ``electric utility steam generating unit,''
``commence,'' and ``major modification.''
Response: Kentucky's PSD permitting definitions are found in 401
KAR 51:001, not 52:001. Kentucky's rules, including 401 KAR 52:001, are
equivalent to the applicable federal regulations, and are approvable
into the Kentucky SIP. Notably, the definitions included in Kentucky's
PSD permit program (401 KAR Chapter 51) were recently revised by
Kentucky to include new regulations promulgated by EPA in December,
2002. EPA published a notice regarding Kentucky's PSD program in the
Federal Register on February 10, 2006 (71 FR 9688); no public comments
were received on that proposed action. EPA took final action to approve
those changes on July 11, 2006 (71 FR 38990).
Comment: With regard to a statement in 67 FR 79524 (the direct
final rule that was withdrawn), the commenter states that ``[t]he
people are reasonably entitled to review EPA's work again prior to EPA
granting any additional misplaced authority to a rogue state.''
Response: The procedure followed by EPA in the present action
included the simultaneous publication of both a direct final rule (67
FR 79524, December 30, 2002) and a proposed rule (67 FR
[[Page 52463]]
79543, December 30, 2002). As noted in the direct final action, when
EPA receives adverse comments on direct final rules, EPA withdraws the
direct final rule and issues a final rule based on the simultaneously
published proposed rule. EPA withdrew the direct final rule on February
10, 2003 (68 FR 6629). EPA's review of the proposed SIP revision by
Kentucky was comprehensive. EPA is now taking final action based on the
proposal, and addressing the one set of adverse comments received on
the proposed action.
Comment: The commenter states that 67 FR 79523 and 79543 are devoid
of explanation for the proposed addition of 401 KAR 52:001 and 401 KAR
52:100. The commenter further notes that 40 CFR part 52, subpart S is
defective.
Response: EPA disagrees with the commenter's statement. The two
Federal Register notices cited by the commenter include specific
information regarding what actions are being taken by EPA. The Kentucky
SIP contains rules that are equivalent to the applicable Federal rules.
The commenter fails to provide any reason why 40 CFR part 52, subpart S
is defective.
Comment: The commenter states that Kentucky should be sanctioned
for having acted in contempt of the CAA.
Response: The commenter has not provided any information
demonstrating how Kentucky has acted in ``contempt'' of the CAA. This
comment does not appear relevant to the action proposed by EPA
regarding the Kentucky SIP. EPA disagrees with the commenter's
conclusion regarding sanctions.
Comment: The commenter states that there can be no doubt that
Kentucky knowingly and intentionally submitted to EPA rules that
provide less effective technical environmental protection; less
effective opportunity for informed public participation in the
permitting process; and less effective legal forums and processes for
review of questioned decisions than that given to those where 40 CFR
52.21 and 40 CFR part 124 are fully applicable to PSD permits.
Response: EPA has no information or evidence suggesting that
Kentucky has knowingly and intentionally violated any provision of the
CAA or its implementing regulations. As noted earlier, 40 CFR part 124
does not apply to PSD permits issued by state permitting authorities
and likewise, the provisions in 40 CFR 52.21 govern only EPA issuance
of PSD permits.
Comment: The commenter appears to state concern regarding the time
that EPA took to review the Kentucky SIP revision at issue.
Response: In reviewing the Kentucky SIP revision at issue, EPA
followed its SIP processing guidance, its regulations at 40 CFR part
51, Appendix V, and the requirements of Section 110 of the Clean Air
Act.
IV. Final Action
EPA is now taking final action to approve two of four requested
revisions to the SIP for the Commonwealth of Kentucky submitted to EPA
on March 15, 2001. The first revision being approved regards the
removal and separation of rule 401 Kentucky Administrative Regulations
(KAR) 50:035 (``Permits'') into three separate rules under a new
Chapter 52 (Permits, Registrations, and Prohibitory Rules).
Specifically, these rules are 52:001 (Definitions for 401 KAR Chapter
52), 52:030 (Federally-enforceable permits for non-major sources), and
52:100 (``Public, affected state, and U.S. EPA review''). The second
change involves corrections to grammatical errors in rule 50:032
(``Prohibitory Rule for Hot Mix Asphalt Plants'') and the removal of
rule 50:032 from Chapter 50 and adding it to Chapter 52, under 52:090
(``Prohibitory Rule for Hot Mix Asphalt Plants'').
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 (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
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 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).
[[Page 52464]]
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 November 6, 2006. 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 Clean Air Act section 307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Ozone, Reporting
and recordkeeping requirements, Volatile organic compounds.
Dated: August 25, 2006.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
0
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
0
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:
0
a. In paragraph (c) by removing entries for 401 KAR 50:035 titled
``Permits'' and 401 KAR 50:032 titled ``Prohibitory rule for hot mix
asphalt plants'',
0
b. In paragraph (c) adding in numerical order a new chapter heading
``Chapter 52 Permits, Registrations, and Prohibitory Rules'' and
entries for 401 KAR 52:001 titled ``Definitions for 401 KAR Chapter
52'', 401 KAR 52:030 titled ``Federally enforceable permits for non-
major sources'', 401 KAR 52:090 titled ``Prohibitory rule for hot mix
asphalt plants'' and 401 KAR 52:100 titled ``Public, affected state,
and U.S. EPA review'' to read as follows:
Sec. 52.920 Identification of plan.
* * * * *
(c) * * *
Table 1.--EPA-Approved Kentucky Regulations
----------------------------------------------------------------------------------------------------------------
State
State citation Title/subject effective EPA approval date Explanation
date
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Chapter 52 Permits, Registrations, and Prohibitory Rules
----------------------------------------------------------------------------------------------------------------
401 KAR 52:001................... Definitions for 401 01/15/01 09/06/06 [Insert
KAR Chapter 52. citation of
publication].
401 KAR 52:030................... Federally 01/15/01 09/06/06 [Insert
enforceable permits citation of
for non-major publication].
sources.
401 KAR 52:090................... Prohibitory rule for 01/15/01 09/06/06 [Insert
hot mix asphalt citation of
plants. publication].
401 KAR 52:100................... Public, affected 01/15/01 09/06/06 [Insert
state, and U.S. EPA citation of
review. publication].
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
[FR Doc. 06-7415 Filed 9-5-06; 8:45 am]
BILLING CODE 6560-50-P
