[Federal Register Volume 72, Number 10 (Wednesday, January 17, 2007)]
[Proposed Rules]
[Pages 1954-1956]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-531]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2005-KY-0004-200609; FRL-8269-4]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve revisions to the Kentucky State 
Implementation Plan (SIP), submitted by the Commonwealth of Kentucky, 
through the Kentucky Department of Air Quality (KDAQ), on September 6, 
2005. The revisions include changes to Kentucky Administrative 
Regulations (KAR) Title 401, Chapters 50:045, ``Performance tests,'' 
and 63:005, ``Open burning.'' The changes included in the proposed SIP 
revisions are part of Kentucky's strategy to attain and maintain the 8-
hour ozone and fine particulate (PM2.5) national ambient air 
quality standards (NAAQS) by reducing emissions of PM2.5 and 
precursors to ozone. EPA is proposing to approve Kentucky's SIP 
revisions pursuant to section 110 of the Clean Air Act (CAA).

DATES: Written comments must be received on or before February 16, 
2007.

ADDRESSES: Submit your comments, identified by Docket ID Number, ``EPA-
R04-OAR-2005-KY-0004,'' by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. E-mail: [email protected].
    3. Fax: 404-562-9019.
    4. Mail: ``EPA-R04-OAR-2005-KY-0004,'' 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.
    5. Hand Delivery or Courier: James Hou, 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. Such deliveries are only 
accepted during the Regional Office's normal hours of operation. The 
Regional Office's 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 Number, ``EPA-R04-
OAR-

[[Page 1955]]

2005-KY-0004.'' EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit through 
www.regulations.gov or e-mail, information that you consider to be CBI 
or otherwise protected. The www.regulations.gov Web site is an 
``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. 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 in 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: James Hou, 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. The telephone number is (404) 
562-8965. Mr. Hou can also be reached via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Summary of Proposed Action

    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 the Commonwealth of Kentucky to its performance 
test and open burning regulations, found at 401 KAR 50:045 and 401 KAR 
63:005, respectively. These changes became state effective on July 13, 
2005. The rule changes were made to update Kentucky's regulations on 
performance testing, and to establish additional requirements to reduce 
emissions from open burning.
    Kentucky's performance testing rule, 401 KAR 50:045, provides 
guidelines for the methodology, testing conditions, and reporting 
requirements necessary for sources to demonstrate compliance with air 
emissions limitations and standards. Corresponding federal rules on 
performance tests, promulgated by EPA pursuant to Part D of title I of 
the CAA (``Plan Requirements for Nonattainment Areas''), are found at 
40 Code of Federal Regulations (CFR) part 63. These federal rules were 
incorporated by reference into the Kentucky SIP on July 12, 1982 (47 FR 
30059). Kentucky recently made changes to its rules such that the rule 
previously containing the performance test requirements, 401 KAR 
50:016, is being repealed, and the performance test requirements from 
that rule are being placed in 401 KAR 50:045. Because 401 KAR 50:016 
was not part of the Kentucky SIP, EPA is not addressing Kentucky's 
repeal of that rule. Rather, today's action proposes approval of 401 
KAR 50:045, which now includes the performance testing provisions 
previously found in 401 KAR 50:016. As part of the movement of the 
performance test provisions to 401 KAR 50:045, Kentucky made minor, 
non-substantive, changes to the rule. Kentucky's performance testing 
rule is consistent with applicable federal law. The proposed SIP 
revision regarding performance testing is therefore approvable pursuant 
to section 110 of the CAA.
    Kentucky's open burning rule, 401 KAR 63:005, establishes 
restrictions on open burning designed to reduce emissions from such 
activities. This rule was first approved into the Kentucky SIP on July 
12, 1982 (47 FR 30059). The rule is structured such that open burning 
in general is prohibited unless specified conditions are met. The 
conditions are described in sections 3 and 4 of 401 KAR 63:005; section 
5 also includes such restrictions but applies only to open burning for 
fire training. Kentucky revised its open burning rule, effective July 
13, 2005, in order to better control open burning of potentially 
hazardous household garbage. This rule is part of Kentucky's strategy 
to attain and maintain the 8-hour ozone and PM2.5 NAAQS by reducing 
emissions of PM2.5 and ozone precursors resulting from open burning.
    The open burning rule changes made by Kentucky are intended to 
protect air quality in areas where open burning is occurring. The rule 
changes clarify instances when open burning of household garbage is 
permitted and allow open burning of wood waste or clean lumber by 
municipal and county governments. The changes added definitions for 
``clean lumber,'' and ``land clearing,'' and modified the definition of 
``household rubbish.'' The modification made to the definition of 
``household rubbish'' now excludes from the definition any ``other 
hazardous waste materials.'' The changes also included a new section, 
section 5, which specifically addresses restrictions to open burning 
for fire training. Among the new requirements are that substances being 
burned for training purposes not contain hazardous or asbestos 
containing materials (see, sections 5(3) and 5(4)). The changes made to 
section 5 are at least as stringent as the previous regulation. As a 
result, the SIP revision is approvable pursuant to section 110 of the 
CAA.

II. Proposed Action

    EPA is proposing to approve the SIP revisions submitted by Kentucky 
on September 6, 2005. The revisions include changes to two state rules: 
401 KAR 50:045, ``Performance tests,'' and 401 KAR 63:005, ``Open 
burning.'' The SIP revisions include changes to rules that are part of 
Kentucky's strategy to attain and maintain the NAAQS by reducing 
emissions of particulate matter, volatile organic compounds, nitrogen 
oxides, and hazardous air pollutants.

[[Page 1956]]

III. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed 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 proposed 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 proposed 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 proposes to approve 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 proposed 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 proposed 
action merely approves state law as meeting Federal requirements and 
imposes no additional requirements beyond those imposed by state law. 
As a result, it does not alter the relationship or the distribution of 
power and responsibilities established in the CAA. This proposed 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 CAA. In this 
context, in the absence of a prior existing requirement for the State 
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 proposed 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.).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: January 3, 2007.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
 [FR Doc. E7-531 Filed 1-16-07; 8:45 am]
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