ENVIRONMENTAL PROTECTIONAGENCY 40 CFRPart 52 [EPA-R04-OAR-2007-0500-200927; FRL- ] Approval and Promulgation of Implementation Plans; Kentucky: Approval of Revisions to the State Implementation Plan AGENCY: Environmental Protection Agency (EPA) . ACTION: Final rule. SUMMARY: EPAis 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) . EPAhas determined that this rule - 401 Kentucky Administrative Regulations (KAR) 63:020 - was erroneously incorporated into the SIPbecause the rule is not related to the attainment and maintenance of the national ambient air quality standards (NAAQS) . For this reason, EPA is correcting this error and removing this rule fromthe approved Kentucky SIPpursuant to section 110(k)(6) of the CleanAir Act (CAA) . This final rule also addresses comments made on the proposed rulemaking EPApreviously published for this action. EFFECTIVE DATE: This rule will be effective [insert 30days after date of publication in the Federal Re ig ster] . ADDRESSES: EPAhas established a docket for this action under Docket Identification No. EPA-R04-OAR-2007-0500. All documents in the docket are listed on the www .regulations .RovWeb 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 www .regulations .a

.ov 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 ifat 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. FORFURTHERINFORMATIONCONTACT: 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.lynoraeCepa.g_o_v. SUPPLEMENTARY INFORMATION : Table of Contents I . What Action Is EPATaking? II . What Is the Background for the Action? III . Response to CommentsIV. Final Action

V . Statutory and Executive Order Reviews I . What Action Is EPATaking? EPA is taking final action to remove 401 KAR63:020fromthe Kentucky SIP . EPAhas determined that this rule was erroneously incorporated into the SIPbecause the rule is not related to the attainment and maintenance of the NAAQS. EPA is correcting this error and removing this rule fromthe approved Kentucky SIP . II . What Is the Background for the Action? The CAArequires EPAto 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 110of the CAArequires states to adopt, and submit to EPAfor approval, SINto implement, maintain and enforce the NAAQS . Accordingly, SINcontain the measures used by states to attain and maintain the NAAQS . Consistent with Section 110of the CAA, provisions approved by EPAas 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 CAAoccurred in 1970and 1977. Following these amendments, a large number of SINwere submitted to EPAto fulfill new Federal requirements . In many cases, states and districts submitted their entire programs, including 3many elements not required pursuant to the CAA . Due to resource constraints during this timeframe, EPA's reviewof 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, EPAhas 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 fromNew York SIPimposing general duty not to cause air pollution or odors) ; 71 FR 13551 (removing nuisance rule fromGeorgia 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 fromMichigan 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 FR47058 (removing provisions from Wyoming SIPrelating to, among other things, hydrogen sulfide and fluoride ambient standards, and odor control) . After the 1977 CAAAmendments, the Commonwealth of Kentucky included the "Potentially hazardous matter or toxic substances" rule at 401 KAR63:020 as part of a voluminous SIP submittal to EPA . EPAapproved 401 KAR63:020 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 table at 40 C.F.R. 52.920 contains an incorrect Federal Register citation for EPA's approval date of 401 KAR 63:020 .the regulations of the Division of Air Pollution." 401 KAR63:020 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, andplants, 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 EPAcorrect the Kentucky SIPby deleting this rule. In addition, KDAQhas explained to EPAthat 401 KAR63:020 "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 underthis regulation." (March 31, 2008, letter from John S. Lyons, Director, KDAQto Beverly Banister, Director, Air, Pesticides, and Toxics Management Division, EPARegion 4)("March 31st letter") . Instead, Kentucky has "used this rule as a riskbased 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 fromthis rule to any NAAQS attainment or maintenance plans required under Section 110of the CAA . (June 15, 2009, letter from John S. Lyons, Director, KDAQto Carol L. Kemker, Acting Director, Air, Pesticides, and Toxics Management Division, EPARegion 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 CAASection 110criteria pollutants in any way that is related to the attainment and maintenanceof NAAQS. For these reasons, EPA's 1982 approval of this rule into the Kentucky SIPwas in

error. EPA is therefore removing the rule fromthe 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, ifsuch emissions are not elsewhere subject to regulation by KDAQ(formerly Division of Air Pollution) . 401 KAR63:020 Section 1 . However, KDAQelsewhere regulates emissions of pollutants to attain and maintain the NAAQS. For example 401 KARChapters 51 and 53 regulate emissions of criteria pollutants, and emissions affecting criteria pollutants such as precursors. Because KDAQuses other regulations to regulate emissions ofcriteria pollutants to attain and maintain the NAAQS, and because KDAQ has confirmed that 401 KAR63:020 "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 claimedunder this regulation," (March 31st letter), EPAhas concluded that 401 KAR63:020does not apply to emissions relevant to the attainment and maintenance of the NAAQS. As stated above, under Section 110of the CAA, SIPs should contain provisions relevant to attaining and maintaining the NAAQS. Kentucky rule 401 KAR63:020 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 planor plan revision (or part thereof), area designation, redesignation, classification, or reclassification was in error, the Administrator may 6in the same manner as the approval, disapproval, or promulgation, revise such action as

appropriate without requiring any further submission fromthe 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 CAAto remove provisions that were erroneously incorporated fromSIPs. On October 29, 2007 (72 FR61087), EPAproposed to remove 401 KAR63:020 from the approved SIP under the authority of section 110(k)(6) of the CAA . EPAsubsequently received comments fromone commenter who opposed the proposed correction. In this action, EPAis addressing the adverse comments received and taking final action as described in Section I and Section IV for this rulemaking. 111. Response to Comments On May 25, 2007, the Commonwealth of Kentucky, through KDAQ, requested that EPA correct the Kentucky SIP to remove 441 KAR63:020 . In an action published on October 29, 2007 (72 FR 61087), EPAproposed to correct the Kentucky SIPthrough removal of 401 KAR 63:020fromthe Kentucky SIP . EPAreceived comments fromone commenter on the October 29, 2007, proposal . The comments are summarized below with EPA responses. EPAis now taking final action under Section 110(k)(6) to remove 401 KAR63:020 fromthe Kentucky SIP . Comment : The commenter states that 401 KAR63:020is not limited in scope to antimony, bismuth, lead, silica, tin and compounds ofsuch 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 7instances where the emission of those pollutants is not otherwise addressed by regulation, such

as instances where such emissions . . . come froma source which is classified as "minor" but has significant localized impacts." Response: Pursuant to Section 110of the CAA, SINcontain measures used by states to attain and maintain the NAAQSfor 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 KAR63:020, 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 theprovisions of the administrative regulations ofthe Division forAir Quality." 401 KAR63:020Section 1 (emphasis added) . KDAQelsewhere regulates emissions of pollutants to attain and maintain the NAAQS and KDAQhas confirmed that it has neverused 401 KAR 63:020to regulate criteria pollutants in any way related to attaining or maintaining the NAAQS. (March 31st andJune 15th letters) . Examples of other rules used by KDAQto regulate emissions relevant to attainment and maintenance of the NAAQS include 401 KARChapters 51 and 53, regulating emissions ofcriteria pollutants and emissions affecting criteria pollutants such as precursors. Kentucky's rules also include various provisions regarding minor sources, such as 401 KAR52:040. Therefore, by its terms, 401 KAR63:020, 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 KDAQhas confirmed that it has never used 401 KAR63:020to 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 theprovisions of the administrative regulations of the Division forAir Quality." 401 KAR63:020 Section l . ~ The March 31, 2008, and June 15, 2009, letters, and other information provided by KDAQto EPAresponding to comments raised in response to EPA's October 29, 2007, proposal to remove 401 KAR63:020fromthe SIPare 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. It should also be noted that EPA's current action does not affect the enforceability or applicability of the rule as a matter ofstate law . Nothing in today's action in any way alters the status of 401 KAR63:020as a Kentucky law or Kentucky's ability to use the rule to 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 9conditions 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 ernissions, 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 KDAQconfirms 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, SIPrevision. This statement explains that 401 KAR63:020was erroneously incorporated into the SIPbecause it does not relate to the attainment, maintenance, and enforcement of the NAAQS in Kentucky. EPAis reasonable in relying on information provided by KDAQabout the use of its rule, and has relied on similar information fromother states to delete erroneously incorporated provisions fromSIPs. See e.g., 71 FR 13551 (EPA relied on information provided by Georgia in deleting a nuisance rule from Georgia SIP) ; 63 FR 27492and 64 FR 7790 (EPA relied on information provided by Michigan in deleting a rule used to address odors and nuisances from Michigan SIP) . 10Comment: 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 fromEPA's SIP process and is not relevant to this rulemaking. The current action will have no effect on the status of 401 KAR63:020 as a rule as a matter of the law of the Commonwealth of Kentucky. Comment: The commenter states that the removal ofthis rule is not authorized under 110(k)(6) because this rule is related to attainment and maintenance of the SIPsince it has been the regulatory mechanism

for requiring reductions of emissions ofcriteria pollutants. By removing this rule fromthe SIP, EPAis removing a regulatory tool that Kentucky has utilized to control criteria pollutants . The commenter also requests that EPAwithdraw the proposed rule and request documentation fromKentucky ofall instances in which emissions, operating conditions, or limits have been imposed and where applicants have accepted such limits to avoid imposition of conditions arising fromthe application of this rule. The commenter argues that if the application of 401 KAR63:020 has resulted in control of criteria pollutants frommajor or area sources, then unless the Commonwealth submits a formal SIPrevision 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 KAR63:020'is inappropriate and cannot be undertaken by EPA . Response: KDAQ's March 31, 2008, andJune 15, 2009, letters to EPA confirmed that 441 KAR63:020 has never been used by KDAQto regulate the emissions of the six criteria pollutants in any way that is related to attainment and maintenance of the NAAQS. EPAis also not aware of any such use by Kentucky. 11IV. Final Action EPAis now

taking final action to remove Kentucky rule 401 KAR63:020fromthe Kentucky SIPpursuant to section 110(k)(6) of the CAA . V . Statutory and Executive Order Reviews: Under the CAA, the Administrator is required to approve a SIPsubmission 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 SIPsubmissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA . Accordingly, this action merely corrects an error, 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 ReductionAct (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 (Public Law 104-4) ; " does not have Federalismimplications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999) ; 12" 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 FR28355, May 22, 2001) ; " is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Actof 1995 (1-5 U .S.C. 272 note) because application of those requirements would be inconsistent with the CAA ; and " does not provide EPAwith the discretionary authority to address, as appropriate, disproportionate human health or .environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59FR 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 inthe state, and EPAnotes 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 the Comptroller General of the United States prior to publication of the rule in the Federal Reg ister. Amajor rule cannot take effect until 60days after 13it is published in the Federal Register . This action is not a "major rule" as defiined by 5 U .S.C. 804(2) . Under section 307(b)(1) of the CAA, petitions forjudicial review of this action must be filed in the United States Court ofAppeals for the appropriate circuit by [FEDERAL REGISTER OFFICE: insert date 60 days fromdate of publication of this document in the Federal Register Filing apetition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes ofjudicial reviewnor does it extend the time within which a petition forjudicial reviewmay 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 CFRPart 52 Environmental protection, Air pollution control, Carbon monoxide, Lead, Nitrogen dioxide, Ozone, Particulate matter, Sulfur oxides, Volatile organic compounds.

Dated: 

## JAN ' 4 2010

Jan 4, 2010 Acting Regional Administrator, Region 440 CFRpart 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 KAR63:020" "Potentially hazardous matter or toxic substances".