[Federal Register Volume 61, Number 192 (Wednesday, October 2, 1996)]
[Rules and Regulations]
[Pages 51366-51368]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24528]


-----------------------------------------------------------------------


ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[KS 008-1008(a); FRL-5556-8]


Approval and Promulgation of Implementation Plans; State of 
Kansas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: By this action the EPA gives full approval to the State 
Implementation Plan (SIP) submitted by the state of Kansas for the 
purpose of fulfilling the requirements set forth in the EPA's General 
Conformity rule. The SIP was submitted by the state to satisfy the 
Federal requirements in 40 CFR 51.852 and 93.151. Additionally, the EPA 
is approving in the SIP revisions to the state's open burning rules. 
SIP approval of revised state rules ensures that the SIP is current and 
permits Federal enforceability of the state rules.

DATES: This action is effective December 2, 1996 unless by November 1, 
1996 adverse or critical comments are received.

ADDRESSES: Copies of the documents relevant to this action are 
available for public inspection during normal business hours at the: 
Environmental Protection Agency, Air Planning and Development Branch, 
726 Minnesota Avenue, Kansas City, Kansas 66101; and the EPA Air & 
Radiation Docket and Information Center, 401 M Street, SW., Washington, 
DC 20460.

FOR FURTHER INFORMATION CONTACT: Wayne Kaiser at (913) 551-7603.

SUPPLEMENTARY INFORMATION:

General Conformity

    Section 176(c) of the Clean Air Act (CAA), as amended (the Act), 
requires the EPA to promulgate criteria and procedures for 
demonstrating and ensuring conformity of Federal actions to an 
applicable implementation plan developed pursuant to section 110 and 
Part D of the Act. Conformity to a SIP is defined in the Act as meaning 
conformity to an SIP's purpose of eliminating or reducing the severity 
and number of violations of the National Ambient Air Quality Standards, 
and achieving expeditious attainment of such standards. The Federal 
agency responsible for the action is required to determine if its 
actions conform to the applicable SIP. On November 30, 1993, the EPA 
promulgated the final rule (hereafter referred to as the General 
Conformity rule), which establishes the criteria and procedures 
governing the determination of conformity for all Federal actions, 
except Federal highway and transit actions.
    The General Conformity rule also establishes the criteria for the 
EPA approval of SIPs. See 40 CFR 51.851 and 93.151. These criteria 
provide that the state provisions must be at least as stringent as the 
requirements specified in the EPA's General Conformity rule, and that 
they can be more stringent only if they apply equally to Federal and 
nonfederal entities (section 51.851(b)).
    On June 23, 1992, the EPA promulgated the Kansas City ozone 
redesignation and maintenance plan for Wyandotte and Johnson counties 
in Kansas, and three adjoining counties in Missouri. Section 51.851 and 
section

[[Page 51367]]

93.151 of the General Conformity rule require that states submit a SIP 
revision containing the criteria and procedures for assessing the 
conformity of Federal actions to the applicable SIP, within 12 months 
after November 30, 1993. As the rule applies to all nonattainment areas 
and maintenance areas, a SIP revision which addresses the requirements 
of the General Conformity rule became due on November 30, 1994.
    On June 6, 1996, the state of Kansas submitted a SIP revision 
meeting the requirements of sections 51.851 and 93.151 of the General 
Conformity rule. The submission adopts by reference 40 CFR 93, subpart 
B, except 40 CFR 93.151. The omitted section contains the criteria for 
the EPA approval of General Conformity SIP revisions, and also states 
the effect of the EPA approval of a SIP revision. It is not a necessary 
component of the state's substantive rules governing general conformity 
determinations.
    The Kansas rule also does not adopt paragraph 40 CFR 93.160(f), 
which states that written commitments to mitigation measures must be 
obtained prior to a positive conformity determination and that such 
commitments must be fulfilled. However, these requirements are 
contained in paragraph 93.160(b), which the state did adopt, so its 
omission is not significant.
    This SIP revision was adopted by the Secretary of the Kansas 
Department of Health and Environment on February 21, 1996, and became 
effective on March 15, 1996.
    Because the Kansas rule adopts the substantive requirements of the 
EPA's rule by reference, it meets the criteria in sections 51.851 and 
93.151 for approval of General Conformity SIP revisions.

Open Burning Rules

    The state revised its open burning regulations by revoking old 
rules and adopting similar renumbered, revised rules. One significant 
change was separating out the requirements for agricultural open 
burning as a separate rule in K.A.R. 28-19-648. Substantative change to 
the agricultural open burning rule includes more stringent conditions 
under which open burning can be approved by local authorities, and 
authorizing local authorities to adopt additional restrictions or 
requirements deemed appropriate. The state retains the authority to 
enforce the rule. The revisions provide added health and environmental 
protection.

EPA ACTION: By this action the EPA grants full approval of Kansas' June 
6, 1996, submittal. This SIP revision meets all of the requirements set 
forth in 40 CFR 51.851 and 93.151, and Part 51.
    The EPA is publishing this action without prior proposal because 
the Agency views this as a noncontroversial amendment and anticipates 
no adverse comments. However, in a separate document in the Federal 
Register publication, the EPA is proposing to approve the SIP revision 
should adverse or critical comments be filed.
    If the EPA receives such comments, this action will be withdrawn 
before the effective date by publishing a subsequent notice that will 
withdraw the final action. All public comments received will then be 
addressed in a subsequent final rule, based on this action serving as a 
proposed rule. The EPA will not institute a second comment period on 
this action. Any parties interested in commenting on this action should 
do so at this time.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any SIP. Each request for revision to the SIP shall be 
considered separately in light of specific technical, economic, and 
environmental factors, and in relation to relevant statutory and 
regulatory requirements.
    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., the EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities (5 U.S.C. 603 and 604). 
Alternatively, the EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    SIP approvals under section 110 and subchapter I, Part D of the CAA 
do not create any new requirements, but simply approve requirements 
that the state is already imposing. Therefore, because the Federal SIP 
approval does not impose any new requirements, the EPA certifies that 
it does not have a significant impact on any small entities affected. 
Moreover, due to the nature of the Federal-state relationship under the 
CAA, preparation of a regulatory flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of state action. The 
CAA forbids the EPA to base its actions concerning SIPs on such grounds 
(Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 
42 U.S.C. 7410(a)(2)).
    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a 
July 10, 1995, memorandum from Mary Nichols, Assistant Administrator 
for Air and Radiation. The Office of Management and Budget has exempted 
this regulatory action from E.O. 12866 review.

Unfunded Mandates

    Under sections 202, 203, and 205 of the Unfunded Mandates Reform 
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 
1995, the EPA must undertake various actions in association with 
proposed or final rules that include a Federal mandate that may result 
in estimated costs of $100 million or more to the private sector, or to 
state, local, or tribal governments in the aggregate.
    Through submission of this SIP, the state has elected to adopt the 
program provided for under section 110 of the CAA. These rules may bind 
state and local governments to perform certain actions and also require 
the private sector to perform certain duties. To the extent that the 
rules being finalized for approval by this action will impose new 
requirements, sources are already subject to these regulations under 
state law. Accordingly, no additional costs to state or local 
governments, or to the private sector, result from this final action. 
The EPA has also determined that this final action does not include a 
mandate that may result in estimated costs of $100 million or more to 
state or local governments in the aggregate or to the private sector. 
The EPA has determined that these rules result in no additional costs 
to tribal government.
    Under section 801(a)(1)(A) of the Administrative Procedure Act 
(APA) as amended by the Small Business Regulatory Enforcement Fairness 
Act of 1996, the EPA submitted a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the General Accounting 
Office prior to publication of the rule in today's Federal Register. 
This rule is not a ``major rule'' as defined by section 804(2) of the 
APA as amended.
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by December 2, 1996. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purposes of judicial review, nor does 
it extend the time within which a petition for judicial review may be 
filed, and shall not postpone the effectiveness of

[[Page 51368]]

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, Incorporation by 
reference, Intergovernmental relations, Lead, Ozone, Particulate 
matter, Reporting and recordkeeping requirements.

    Dated: August 2, 1996.
William Rice,
Acting Regional Administrator.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401-7671q.

Subpart CC--Kansas

    2. Section 52.870 is amended by adding paragraph (c)(32) to read as 
follows:


Sec. 52.870  Identification of plan.

* * * * *
    (c) * * *
    (32) A Plan revision was submitted by the Kansas Department of 
Health and Environment (KDHE) on June 6, 1996, which incorporates by 
reference the EPA's regulations relating to determining conformity of 
general Federal actions to State or Federal Implementation Plans, and 
which revokes old and adopts new open burning regulations.
    (i) Incorporation by reference.
    (A) Regulation K.A.R. 28-19-800, adopted by the Secretary of the 
KDHE on February 21, 1996, effective March 15, 1996.
    (B) Regulations K.A.R. 28-19-645 to K.A.R. 28-19-648, adopted by 
the Secretary of KDHE on February 6, 1996, effective March 1, 1996.
    (C) Regulations K.A.R. 28-19-45 to K.A.R. 28-19-47, revoked by the 
Secretary of KDHE on February 6, 1996, effective March 1, 1996.

[FR Doc. 96-24528 Filed 10-1-96; 8:45 am]
BILLING CODE 6560-50-P