[Federal Register Volume 75, Number 10 (Friday, January 15, 2010)]
[Rules and Regulations]
[Pages 2440-2444]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-587]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2007-0500-200927; FRL-9102-6]


Approval and Promulgation of Implementation Plans; Kentucky: 
Approval of Revisions to the State Implementation Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is correcting the state implementation plan (SIP) for the 
Commonwealth of Kentucky to remove the ``Potentially hazardous matter 
or toxic substances'' rule upon request of the Commonwealth of Kentucky 
made through the Kentucky Division for Air Quality (KDAQ). EPA has 
determined that this rule--401 Kentucky Administrative Regulations 
(KAR) 63:020--was erroneously incorporated into the SIP because the 
rule is not related to the attainment and maintenance of the national 
ambient air

[[Page 2441]]

quality standards (NAAQS). For this reason, EPA is correcting this 
error and removing this rule from the approved Kentucky SIP pursuant to 
section 110(k)(6) of the Clean Air Act (CAA). This final rule also 
addresses comments made on the proposed rulemaking EPA previously 
published for this action.

DATES: Effective Date: This rule will be effective February 16, 2010.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2007-0500. All documents in the docket 
are listed on the http://www.regulations.gov Web site. Although listed 
in the index, some information is not publicly available, i.e., 
Confidential Business Information or other information whose disclosure 
is restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically through http://www.regulations.gov or 
in hard copy at the Regulatory Development Section, Air Planning 
Branch, Air, Pesticides and Toxics Management Division, U.S. 
Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., 
Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you 
contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section to schedule your inspection. The Regional Office's official 
hours of business are Monday through Friday, 8:30 to 4:30, excluding 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Lynorae Benjamin, Chief, 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) 562-9040. Ms. Benjamin can also be reached via electronic mail 
at [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What Action Is EPA Taking?
II. What Is the Background for the Action?
III. Response to Comments
IV. Final Action
V. Statutory and Executive Order Reviews

I. What Action Is EPA Taking?

    EPA is taking final action to remove 401 KAR 63:020 from the 
Kentucky SIP. EPA has determined that this rule was erroneously 
incorporated into the SIP because the rule is not related to the 
attainment and maintenance of the NAAQS. EPA is correcting this error 
and removing this rule from the approved Kentucky SIP.

II. What Is the Background for the Action?

    The CAA requires EPA to establish NAAQS for commonly occurring air 
pollutants that pose public health and welfare threats. These 
pollutants are known as criteria pollutants. Currently, NAAQS exist for 
six criteria pollutants--ozone (ground level), particulate matter, 
carbon monoxide, sulfur dioxide, lead and nitrogen dioxide. Section 110 
of the CAA requires states to adopt, and submit to EPA for approval, 
SIPs to implement, maintain and enforce the NAAQS. Accordingly, SIPs 
contain the measures used by states to attain and maintain the NAAQS. 
Consistent with Section 110 of the CAA, provisions approved by EPA as 
part of a SIP should be related to attainment and maintenance of the 
NAAQS for the six criteria pollutants. Other pollutants, such as 
hazardous air pollutants are covered by other provisions of the CAA, 
such as Section 112, which provides for the direct Federal regulation 
of hazardous air pollutants.
    The first significant amendments to the CAA occurred in 1970 and 
1977. Following these amendments, a large number of SIPs were submitted 
to EPA to fulfill new Federal requirements. In many cases, states and 
districts submitted their entire programs, including many elements not 
required pursuant to the CAA. Due to resource constraints during this 
timeframe, EPA's review of these submittals focused primarily on the 
required technical, legal, and enforcement elements of the submittals. 
At the time, EPA did not perform a detailed review of the numerous 
provisions submitted to determine if each provision was related to the 
attainment and maintenance of the NAAQS. As a result, some provisions 
were approved into SIPs erroneously. To correct such errors, EPA has 
removed the erroneously incorporated provisions from SIPs under the 
authority of Section 110(k)(6) of the CAA. See e.g., 73 FR 21546 
(removing rules from New York SIP imposing general duty not to cause 
air pollution or odors); 71 FR 13551 (removing nuisance rule from 
Georgia SIP); 66 FR 57391 (removing from the Missoula City-County 
portion of the Montana SIP provisions relating to, among other things, 
fluoride emission standards); 64 FR 7790 (removing from Michigan SIP a 
general air pollution rule which had been used primarily to address 
odors and other nuisances, and had not been used for purposes of 
attaining or maintaining NAAQS); 61 FR 47058 (removing provisions from 
Wyoming SIP relating to, among other things, hydrogen sulfide and 
fluoride ambient standards, and odor control).
    After the 1977 CAA Amendments, the Commonwealth of Kentucky 
included the ``Potentially hazardous matter or toxic substances'' rule 
at 401 KAR 63:020 as part of a voluminous SIP submittal to EPA. EPA 
approved 401 KAR 63:020 as part of the Kentucky SIP on July 12, 1982, 
with a September 10, 1982, effective date. 47 FR 30059.\1\ This 
Kentucky rule applies to facilities ``which emit[] or may emit 
potentially hazardous matter or toxic substances as defined in Section 
2, provided such emissions are not elsewhere subject to the provisions 
of the regulations of the Division of Air Pollution.'' 401 KAR 63:020 
Section 1. ``Potentially hazardous matter or toxic substances'' is 
defined in Section 2 of the rule to mean ``matter which may be harmful 
to the health and welfare of humans, animals, and plants, including, 
but not limited to, antimony, arsenic, bismuth, lead, silica, tin and 
compounds of such materials.'' The rule prohibits emissions of 
``potentially hazardous matter or toxic substances in such quantities 
or duration as to be harmful to the health and welfare of humans, 
animals and plants.'' 401 KAR 63:020 Section 3.
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    \1\ The table at 40 CFR 52.920 contains an incorrect Federal 
Register citation for EPA's approval date of 401 KAR 63:020.
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    On May 25, 2007, Kentucky, through KDAQ, requested that EPA correct 
the Kentucky SIP by deleting this rule. In addition, KDAQ has explained 
to EPA that 401 KAR 63:020 ``has never been used by the Cabinet to 
regulate emissions of any of the six criteria pollutants in any way 
that is related to the attainment and maintenance of the NAAQS * * * 
Nor have any reduction credits ever been claimed under this 
regulation.'' (March 31, 2008, letter from John S. Lyons, Director, 
KDAQ to Beverly Banister, Director, Air, Pesticides, and Toxics 
Management Division, EPA Region 4) (``March 31st letter''). Instead, 
Kentucky has ``used this rule as a risk-based Screening tool for toxic 
air emissions and [the rule] has been the authority under which 
modeling and permit conditions have been imposed.'' (March 31st 
letter). Kentucky has not relied on or attributed any emission 
reductions from this rule to any NAAQS attainment or maintenance plans 
required under Section 110 of the CAA. (June 15, 2009, letter from John 
S. Lyons, Director,

[[Page 2442]]

KDAQ to Carol L. Kemker, Acting Director, Air, Pesticides, and Toxics 
Management Division, EPA Region 4) (June 15th letter). In sum, Kentucky 
has consistently used this rule to address hazardous or toxic air 
pollutants, and has never used this rule to regulate CAA Section 110 
criteria pollutants in any way that is related to the attainment and 
maintenance of NAAQS. For these reasons, EPA's 1982 approval of this 
rule into the Kentucky SIP was in error.
    EPA is therefore removing the rule from the approved SIP under the 
authority of section 110(k)(6) of the CAA. EPA is doing so, because it 
has determined that this rule is not related to the attainment and 
maintenance of the NAAQS. This Kentucky rule applies to emissions of 
potentially hazardous matters or toxic substances, if such emissions 
are not elsewhere subject to regulation by KDAQ (formerly Division of 
Air Pollution). However, KDAQ elsewhere regulates emissions of 
pollutants to attain and maintain the NAAQS. For example 401 KAR 
Chapters 51 and 53 regulate emissions of criteria pollutants, and 
emissions affecting criteria pollutants such as precursors. Because 
other KDAQ uses other regulations to regulate emissions of criteria 
pollutants to attain and maintain the NAAQS, and because KDAQ has 
confirmed that 401 KAR 63:020 ``has never been used by the Cabinet to 
regulate emissions of any of the six criteria pollutants in any way 
that is related to the attainment and maintenance of the NAAQS . . . 
Nor have any reduction credits ever been claimed under this 
regulation,'' (March 31st letter), EPA has concluded that 401 KAR 
63:020 does not apply to emissions relevant to the attainment and 
maintenance of the NAAQS. As stated above, under Section 110 of the 
CAA, SIPs should contain provisions relevant to attaining and 
maintaining the NAAQS. Kentucky rule 401 KAR 63:020 is not relevant to 
attaining and maintaining the NAAQS and was erroneously included in the 
SIP.
    Section 110(k)(6) provides a process for EPA to correct such 
errors. Specifically, it provides that: ``[w]henever the Administrator 
determines that the Administrator's action approving, disapproving, or 
promulgating any plan or plan revision (or part thereof), area 
designation, redesignation, classification, or reclassification was in 
error, the Administrator may in the same manner as the approval, 
disapproval, or promulgation, revise such action as appropriate without 
requiring any further submission from the State. Such determination and 
the basis thereof shall be provided to the State and public.'' As 
stated above, EPA previously has relied on Section 110(k)(6) of the CAA 
to remove provisions that were erroneously incorporated from SIPs.
    On October 29, 2007 (72 FR 61087), EPA proposed to remove 401 KAR 
63:020 from the approved SIP under the authority of section 110(k)(6) 
of the CAA. EPA subsequently received comments from one commenter who 
opposed the proposed correction. In this action, EPA is addressing the 
adverse comments received and taking final action as described in 
Section I and Section IV for this rulemaking.

III. Response to Comments

    On May 25, 2007, the Commonwealth of Kentucky, through KDAQ, 
requested that EPA correct the Kentucky SIP to remove 401 KAR 63:020. 
In an action published on October 31, 2007 (72 FR 61589), EPA proposed 
to correct the Kentucky SIP through removal of 401 KAR 63:020 from the 
Kentucky SIP. EPA received comments from one commenter on the October 
31, 2007, proposal. The comments are summarized below with EPA 
responses. EPA is now taking final action under Section 110(k)(6) to 
remove 401 KAR 63:020 from the Kentucky SIP.
    Comment: The commenter states that 401 KAR 63:020 is not limited in 
scope to antimony, bismuth, lead, silica, tin and compounds of such 
materials, but is a narrative backstop regulation broadly applicable to 
any matter emitted in such quantity to be potentially hazardous. The 
regulation, the commenter continues, ``is applicable to the six 
criteria pollutants in those instances where the emission of those 
pollutants is not otherwise addressed by regulation, such as instances 
where such emissions * * * come from a source which is classified as 
``minor'' but has significant localized impacts.''
    Response: Pursuant to Section 110 of the CAA, SIPs contain measures 
used by states to attain and maintain the NAAQS for the six criteria 
pollutants. Air toxics, on the other hand, are regulated pursuant to 
other parts of the CAA, including Section 112. The Kentucky rule, by 
its terms, applies to emissions of hazardous air pollutants, not 
elsewhere regulated by Kentucky. The applicability provision for 401 
KAR 63:020, Section 1, states that the rule applies ``to each affected 
facility which emits or may emit potentially hazardous matter or toxic 
substances as defined in Section 2 of this administrative regulation, 
provided such emissions are not elsewhere subject to the provisions of 
the administrative regulations of the Division for Air Quality.'' 401 
KAR 63:020 Section 1 (emphasis added). KDAQ elsewhere regulates 
emissions of pollutants to attain and maintain the NAAQS and KDAQ has 
confirmed that it has never used 401 KAR 63:020 to regulate criteria 
pollutants in any way related to attaining or maintaining the NAAQS. 
Examples of other rules used by KDAQ to regulate emissions relevant to 
attainment and maintenance of the NAAQS include 401 KAR Chapters 51 and 
53, regulating emissions of criteria pollutants and emissions affecting 
criteria pollutants such as precursors. Kentucky's rules also include 
various provisions regarding minor sources, such as 401 KAR 52:040. 
Therefore, by its terms, 401 KAR 63:020, does not apply to emissions 
relevant to the attainment and maintenance of the NAAQS.
    As was explained above, the purpose of SIP-approved rules, 
consistent with section 110 of the CAA, is to implement a program to 
attain and maintain the NAAQS. The rule, 401 KAR 63:020, is not 
directed at attainment or maintenance of any NAAQS. Kentucky uses other 
rules to regulate criteria pollutants to attain and maintain the NAAQS, 
and KDAQ has confirmed that it has never used 401 KAR 63:020 to 
regulate criteria pollutants in any way related to attaining and 
maintaining the NAAQS. Thus, the commenter's statement that 63:020 ``is 
broadly applicable to any matter emitted in such quantity to be 
potentially hazardous'' does not consider the language in the Kentucky 
rule which limits its applicability to such emissions that ``are not 
elsewhere subject to the provisions of the administrative regulations 
of the Division for Air Quality.'' 401 KAR 63:020 Section 1.
    The March 31, 2008, and June 15, 2009, letters, and other 
information provided by KDAQ to EPA responding to comments raised in 
response to EPA's October 29, 2007, proposal to remove 401 KAR 63:020 
from the SIP are available in the docket for the current final action. 
This information is consistent with KDAQ's position in submitting the 
May 25, 2007, SIP revision requesting that the rule be removed. In its 
letters, KDAQ confirmed that this rule has never been used ``to 
regulate the emissions of any of the six criteria pollutants in any way 
that is related to the attainment and maintenance of the NAAQS'' under 
Section 110 of the CAA.
    It should also be noted that EPA's current action does not affect 
the enforceability or applicability of the rule as a matter of state 
law. Nothing in today's action in any way alters the

[[Page 2443]]

status of 401 KAR 63:020 as a Kentucky law or Kentucky's ability to use 
the rule impose requirements into enforceable permits for sources to 
which the rule applies.
    Comment: The commenter states that this regulation has been 
utilized in many instances during the years it has been part of the 
SIP, as a risk-based screening tool and that it has been the authority 
under which the state has required modeling of pollutants and imposed 
permit conditions for such emissions, including volatile organic 
compounds that are both potential air toxics and are criteria pollutant 
ozone precursors. The commenter further states that the regulation has 
been utilized to require further reductions beyond those categorically 
applicable to emissions, including criteria pollutant emissions.
    Response: In its March 31, 2008, letter and repeated in its June 
15, 2009, letter, KDAQ explained that 63:020 has been used as a risk-
based screening tool for toxic air emissions, and ``to the extent that 
a particular emission is both an air toxic and a criteria pollutant,'' 
the application of this rule ``has only been concerned with the toxic 
impacts of the pollutant.'' (March 31st letter). In addition, as stated 
above, Kentucky explained that it ``has never used this regulation to 
regulate criteria pollutants in any way that is related to the 
attainment and maintenance of NAAQS; and ``never claimed any NAAQS 
reduction credits under this regulation.'' (March 31st letter; June 
15th letter).
    This statement by KDAQ confirms its historical usage of the rule as 
separate from regulation of criteria pollutants for the purpose of 
attaining and maintaining the NAAQS, and supports KDAQ's intent in 
submitting the May 25, 2007, SIP submission. This statement explains 
that 401 KAR 63:020 was erroneously incorporated into the SIP because 
it does not relate to the implementation, maintenance, and enforcement 
of the NAAQS in Kentucky.
    EPA is reasonable in relying on information provided by KDAQ about 
the use of its rule, and has relied on similar information from other 
states to delete erroneously incorporated provisions from SIPs. See 
e.g., 71 FR 13551 (EPA relied on information provided by Georgia in 
deleting a nuisance rule from Georgia SIP); 63 FR 27492 and 64 FR 7790 
(EPA relied on information provided by Michigan in deleting a rule used 
to address odors and nuisances from Michigan SIP).
    Comment: The commenter states that Kentucky has previously proposed 
to repeal this regulation and replace it with a ``safety net'' 
regulation.
    Response: Kentucky's authority over its administrative rules is 
separate from EPA's SIP process and is not relevant to this rulemaking. 
The current action will have no effect on the status of 401 KAR 63:020 
as a rule as a matter of the law of the Commonwealth of Kentucky.
    Comment: The commenter states that the removal of this rule is not 
authorized under 110(k)(6) because this rule is related to attainment 
and maintenance of the SIP since it has been the regulatory mechanism 
for requiring reductions of emissions of criteria pollutants. By 
removing this rule from the SIP, EPA is removing a regulatory tool that 
Kentucky has utilized to control criteria pollutants. The commenter 
also requests that EPA withdraw the proposed rule and request 
documentation from Kentucky of all instances in which emissions, 
operating conditions, or limits have been imposed and where applicants 
have accepted such limits to avoid imposition of conditions arising 
from the application of this rule. The commenter argues that if the 
application of 401 KAR 63:020 has resulted in control of criteria 
pollutants from major or area sources, then unless the Commonwealth 
submits a formal SIP revision providing offsetting reductions and 
demonstrates that removal of this regulation will not result in or 
interfere with continued maintenance and achievement of such 
reductions, the removal of 401 KAR 63:020 is inappropriate and cannot 
be undertaken by EPA.
    Response: KDAQ's March 31, 2008, and June 15, 2009, letters to EPA 
confirmed that 401 KAR 63:020 has never been used by KDAQ to regulate 
the emissions of the six criteria pollutants in any way that is related 
to attainment and maintenance of the NAAQS. EPA is also not aware of 
any such use by Kentucky.

IV. Final Action

    EPA is now taking final action to remove Kentucky rule 401 KAR 
63:020 from the Kentucky SIP pursuant to section 110(k)(6) of the CAA.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR Sec.  52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.
    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 action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and

[[Page 2444]]

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 March 16, 2010. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action 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).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Lead, Nitrogen dioxide, Ozone, Particulate 
matter, Sulfur oxides, Volatile organic compounds.

    Dated: January 4, 2010.
Beverly H. Banister,
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. In Sec.  52.920(c) Table 1 is amended under Chapter 63--General 
Standards of Performance by removing the entry for ``401 KAR 63:020'' 
``Potentially hazardous matter or toxic substances''.

[FR Doc. 2010-587 Filed 1-14-10; 8:45 am]
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