Approval and Promulgation of Implementation Plans Kentucky: Performance Testing and Open Burning, 58759-58762 [E7-20334]
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Federal Register / Vol. 72, No. 200 / Wednesday, October 17, 2007 / Rules and Regulations
John
McDonald, Project Officer, First Coast
Guard District, at (617) 223–8364.
SUPPLEMENTARY INFORMATION: The US2
Bridge, across Lake Champlain, mile
91.8, between North Hero Island and
Grand Isle (South Hero Island),
Vermont, has a vertical clearance in the
closed position of 13 feet at mean high
lake elevation and 16 feet at mean low
lake elevation. The existing drawbridge
operation regulations are listed at 33
CFR 117.993(b).
The owner of the bridge, the Vermont
Agency of Transportation (VTrans),
requested a temporary deviation to
facilitate rehabilitation repairs at the
bridge.
Under this temporary deviation, in
effect from October 22, 2007 through
February 1, 2008, the US2 Bridge need
not open for the passage of vessel traffic.
The US2 Bridge rarely opens during
the time period this temporary deviation
will be in effect. Vessels that can pass
under the bridge without a bridge
opening may do so at all times.
In accordance with 33 CFR 117.35(e),
the bridge must return to its regular
operating schedule immediately at the
end of the designated time period. This
deviation from the operating regulations
is authorized under 33 CFR 117.35.
Should the bridge maintenance
authorized by this temporary deviation
be completed before the end of the
effective period published in this notice,
the Coast Guard will rescind the
remainder of this temporary deviation,
and the bridge shall be returned to its
normal operation schedule. Notice of
the above action shall be provided to the
public in the Local Notice to Mariners
and the Federal Register, where
practicable.
FOR FURTHER INFORMATION CONTACT:
Dated: October 4, 2007.
Gary Kassof,
Bridge Program Manager, First Coast Guard
District.
[FR Doc. E7–20482 Filed 10–16–07; 8:45 am]
BILLING CODE 4910–15–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 117
[CGD08–07–026]
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RIN 1625–AA09
Drawbridge Operation Regulations;
Upper Mississippi River, Clinton, IA
Coast Guard, DHS.
Notice of deviation from
drawbridge regulation.
AGENCY:
ACTION:
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SUMMARY: The Commander, Eighth
Coast Guard District, has issued a
temporary deviation from the regulation
governing the operations of the Clinton
Railroad Drawbridge, Mile 518.0,
Clinton, Iowa across the Upper
Mississippi River. This deviation allows
the bridge to open on signal if at least
24 hours advance notice is given from
12:01 a.m. December 15, 2007 until 9
a.m., March 15, 2008. The deviation is
necessary to allow time for performing
needed maintenance and repairs to the
bridge.
DATES: This temporary deviation is
effective from 12:01 a.m. December 15,
2007 until 9 a.m., March 15, 2008.
ADDRESSES: Materials referred to in this
document are available for inspection or
copying at Room 2.107F in the Robert A.
Young Federal Building, 1222 Spruce
Street, St. Louis, MO 63103–2832,
between 8 a.m. and 4 p.m., Monday
through Friday, except Federal holidays.
The Bridge Administration Branch
maintains the public docket for this
temporary deviation.
FOR FURTHER INFORMATION CONTACT:
Roger K. Wiebusch, Bridge
Administrator, (314) 269–2378.
SUPPLEMENTARY INFORMATION: The Union
Pacific Railroad Company requested a
temporary deviation for the Clinton
Railroad Drawbridge, mile 518.0, at
Clinton, Iowa across the Upper
Mississippi to open on signal if at least
24 hours advance notice is given in
order to facilitate needed bridge
maintenance and repairs. The Clinton
Railroad Drawbridge currently operates
in accordance with 33 CFR 117.5, which
states the general requirement that
drawbridges shall open promptly and
fully for the passage of vessels when a
request to open is given in accordance
with the subpart. In order to facilitate
the needed bridge work, the drawbridge
must be kept in the closed-to-navigation
position. This deviation allows the
bridge to open on signal if at least 24
hours advance notice is given from
12:01 a.m. December 15, 2007 until 9
a.m., March 15, 2008.
There are no alternate routes for
vessels transiting this section of the
Upper Mississippi River.
The Clinton Railroad Drawbridge, in
the closed-to-navigation position,
provides a vertical clearance of 18.7 feet
above normal pool. Navigation on the
waterway consists primarily of
commercial tows and recreational
watercraft. These interests will not be
significantly impacted due to the
reduced navigation in winter months.
This temporary deviation has been
coordinated with waterway users. No
objections were received.
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58759
In accordance with 33 CFR 117.35(e),
the drawbridge shall return to its regular
operating schedule immediately at the
end of the designated time period. This
deviation from the operating regulations
is authorized under 33 CFR 117.35.
Dated: October 5, 2007.
Roger K. Wiebusch,
Bridge Administrator.
[FR Doc. E7–20494 Filed 10–16–07; 8:45 am]
BILLING CODE 4910–15–P
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
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
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
E:\FR\FM\17OCR1.SGM
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58760
Federal Register / Vol. 72, No. 200 / Wednesday, October 17, 2007 / Rules and Regulations
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 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
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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
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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
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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
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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
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14:39 Oct 16, 2007
Jkt 214001
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
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58761
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.
1. The authority citation for part 52
continues to read as follows:
Dated: September 28, 2007.
J. I. Palmer, Jr.,
Regional Administrator, Region 4.
I
‘‘401 KAR 50:045’’ and ‘‘401 KAR
63:005’’ to read as follows:
PART 52—[AMENDED]
§ 52.920
Authority: 42 U.S.C. 7401 et seq.
40 CFR part 52 is amended as follows:
*
Subpart S—Kentucky
Identification of plan.
*
*
(c) * * *
*
*
2. Section 52.920(c), Table 1 is
amended by revising the entries for
I
TABLE 1.—EPA-APPROVED KENTUCKY REGULATIONS
State citation
Chapter 50
*
*
401 KAR 50:045 ............................
*
*
*
Chapter 63
*
*
*
*
*
[FR Doc. E7–20334 Filed 10–16–07; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
46 CFR Part 67
[USCG–2007–28098]
RIN 1625–AB18
Vessel Documentation; Recording of
Instruments
Coast Guard, DHS.
Direct final rule; confirmation of
effective date.
AGENCY:
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ACTION:
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07/13/05
*
*
10/17/07 [Insert citation of publication].
*
*
General Standards of Performance
*
*
Open burning ................................
*
EPA approval date
Explanation
Division for Air Quality; General Administrative Procedures
*
*
Performance tests .........................
*
*
*
401 KAR 63:005 ............................
*
State effective
date
Title/subject
07/13/05
*
*
*
10/17/07 [Insert citation of publication].
*
SUMMARY: On August 2, 2007, we
published a direct final rule. The direct
final rule notified the public of our
intent to amend vessel documentation
regulations to eliminate the requirement
to provide certain original documents to
the National Vessel Documentation
Center (NVDC) for recording, and to
eliminate the additional fee for filing by
facsimile. We have not received an
adverse comment, or notice of intent to
submit an adverse comment, on the
rule. Therefore, the rule will go into
effect as scheduled.
The effective date of the direct
final rule published at 72 FR 42310,
August 2, 2007, is confirmed as October
31, 2007.
DATES:
Mr.
Thomas L. Willis, Director, National
FOR FURTHER INFORMATION CONTACT:
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*
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*
*
*
*
*
Vessel Documentation Center, U.S.
Coast Guard, telephone (304) 271–2506.
SUPPLEMENTARY INFORMATION: We
undertook this rulemaking to conform
our business practices with similar
functions provided by other
governmental entities and to allow our
customers to avail themselves of better
service through electronic filing. This
rulemaking is expected to improve
efficiency at the NVDC and permit the
use of improved information collection
technology.
Dated: October 11, 2007.
Stefan G. Venckus,
Chief, Office of Regulations and
Administrative Law, United States Coast
Guard.
[FR Doc. E7–20434 Filed 10–16–07; 8:45 am]
BILLING CODE 4910–15–P
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Agencies
[Federal Register Volume 72, Number 200 (Wednesday, October 17, 2007)]
[Rules and Regulations]
[Pages 58759-58762]
From the Federal Register Online via the Government Printing 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.
-----------------------------------------------------------------------
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
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