2440 Federal Register / Vol. 75, No. 10 / Friday, January 15, 2010 / Rules and Regulations 

Protection of Children 

We have analyzed this rule under 

Executive Order 13045, Protection of 

Children from Environmental Health 

Risks and Safety Risks. This rule is not 

an economically significant rule and 

does not create an environmental risk to 

health or risk to safety that may 

disproportionately affect children. 

Indian Tribal Governments 

This rule does not have Tribal 

implications under Executive Order 

13175, Consultation and Coordination 

with Indian Tribal Governments, 

because it does 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. 

Energy Effects 

We have analyzed this rule under 

Executive Order 13211, Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use. We have 

determined that it is not a ‘‘significant 

energy action’’ under that order because 

it is not a ‘‘significant regulatory action’’ 

under Executive Order 12866 and is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. The Administrator of the Office 

of Information and Regulatory Affairs 

has not designated it as a significant 

energy action. Therefore, it does not 

require a Statement of Energy Effects 

under Executive Order 13211. 

Technical Standards 

The National Technology Transfer 

and Advancement Act (NTTAA) (15 

U.S.C. 272 note) directs agencies to use 

voluntary consensus standards in their 

regulatory activities unless the agency 

provides Congress, through the Office of 

Management and Budget, with an 

explanation of why using these 

standards would be inconsistent with 

applicable law or otherwise impractical. 

Voluntary consensus standards are 

technical standards (e.g., specifications 

of materials, performance, design, or 

operation; test methods; sampling 

procedures; and related management 

systems practices) that are developed or 

adopted by voluntary consensus 

standards bodies. 

This rule does not use technical 

standards. Therefore, we did not 

consider the use of voluntary consensus 

standards. 

Environment 

We have analyzed this rule under 

Department of Homeland Security 

Management Directive 023–01 and 

Commandant Instruction M16475.lD, 

which guide the Coast Guard in 

complying with the National 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321–4370f), and 

have concluded this action is one of a 

category of actions which do not 

individually or cumulatively have a 

significant effect on the human 

environment. This rule is categorically 

excluded, under figure 2–1, paragraph 

(34)(g), of the Instruction. This rule 

involves the establishment of a safety 

zone. 

An environmental analysis checklist 

and a categorical exclusion 

determination are available in the 

docket where indicated under 

ADDRESSES. 

List of Subjects in 33 CFR Part 165 

Harbors, Marine safety, Navigation 

(water), Reporting and recordkeeping 

requirements, Security measures, 

Waterways. 

■ For the reasons discussed in the 

preamble, the Coast Guard amends 33 

CFR part 165 as follows: 

PART 165—REGULATED NAVIGATION 

AREAS AND LIMITED ACCESS AREAS 

■ 1. The authority citation for part 165 

continues to read as follows: 

Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. 

Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 

33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Pub. L. 

107–295, 116 Stat. 2064; Department of 

Homeland Security Delegation No. 0170.1. 

■ 2. Add a new temporary § 165.T11– 

283 to read as follows: 

§ 165.T11–283 Safety Zone; Havasu 

Landing Annual Regatta; Colorado River, 

Lake Havasu Landing, CA. 

(a) Location. The limits of the safety 

zone will be the navigable waters of the 

San Diego Bay bounded by the 

following coordinates: 

From the California shoreline in 

position 34°29.40′ N 114°24.12′ W to the 

northern corner 900 yards east in 

position 34°29.40′ N 114°23.39′ W to the 

southern corner 1400 yards south in 

position 34°29.0′ N 114°23.39′ W to the 

California shoreline in position 34°29.0′ 

N 114°24.12′ W. 

(b) Enforcement Period. This section 

will be enforced from 8 a.m. to 4 p.m. 

on January 16, 2010 and January 17, 

2010. If the event concludes prior to the 

scheduled termination time, the Captain 

of the Port will cease enforcement of 

this safety zone and will announce that 

fact via Broadcast Notice to Mariners. 

(c) Definitions. The following 

definition applies to this section: 

designated representative, means any 

commissioned, warrant, and petty 

officers of the Coast Guard on board 

Coast Guard, Coast Guard Auxiliary, 

and local, State, and Federal law 

enforcement vessels who have been 

authorized to act on the behalf of the 

Captain of the Port. 

(d) Regulations. (1) Entry into, transit 

through or anchoring within this safety 

zone is prohibited unless authorized by 

the Captain of the Port of San Diego or 

his designated representative. 

(2) Mariners requesting permission to 

transit through the safety zone may 

request authorization to do so from the 

Patrol Commander (PATCOM). The 

PATCOM may be contacted on VHF–FM 

Channel 16. 

(3) All persons and vessels shall 

comply with the instructions of the 

Coast Guard Captain of the Port or the 

designated representative. 

(4) Upon being hailed by U.S. Coast 

Guard patrol personnel by siren, radio, 

flashing light, or other means, the 

operator of a vessel shall proceed as 

directed. 

(5) The Coast Guard may be assisted 

by other Federal, State, or local 

agencies. 

Dated: January 6, 2010. 

T.H. Farris, 

Captain, U.S. Coast Guard, Captain of the 

Port San Diego. 

[FR Doc. 2010–763 Filed 1–13–10; 11:15 am] 

BILLING CODE 9110–04–P 

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. 

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 


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1The table at 40 CFR 52.920 contains an incorrect 

Federal Register citation for EPA’s approval date of 

401 KAR 63:020. 

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 

benjamin.lynorae@epa.gov. 

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. 

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, 


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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 


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Federal Register / Vol. 75, No. 10 / Friday, January 15, 2010 / Rules and Regulations 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 § 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 


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2444 Federal Register / Vol. 75, No. 10 / Friday, January 15, 2010 / Rules and Regulations 

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. 

■ 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 

■ 2. In § 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] 

BILLING CODE 6560–50–P 


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