[Federal Register Volume 68, Number 38 (Wednesday, February 26, 2003)]
[Rules and Regulations]
[Pages 8845-8847]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-4626]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[KS 173-1173a; FRL-7455-9]


Approval and Promulgation of Implementation Plans; State of 
Kansas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking final action to approve a State Implementation 
Plan (SIP) revision submitted by the state of Kansas. This revision is 
a new regulation entitled ``Prevention of Significant Deterioration of 
Air Quality'' (PSD) and will replace the existing state PSD regulation. 
This rule was last adopted as a state rule in 1990; therefore, this 
revision adopts by reference Federal PSD regulations, as in effect on 
July 1, 2000. The effect of this approval is to ensure Federal 
enforceability of the state air program rules and to maintain 
consistency between the state-adopted rules and the approved SIP.

DATES: This direct final rule will be effective April 28, 2003, unless 
EPA receives adverse comments by March 28, 2003. If adverse comments 
are received, EPA will publish a timely withdrawal of the direct final 
rule in the Federal Register informing the public that the rule will 
not take effect.

ADDRESSES: Comments may be mailed to Heather Hamilton, Environmental 
Protection Agency, Air Planning and Development Branch, 901 North 5th 
Street, Kansas City, Kansas 66101.
    Copies of documents relative to this action are available for 
public inspection during normal business hours at the above-listed 
Region 7 location. The interested persons wanting to examine these 
documents should make an appointment with the office at least 24 hours 
in advance.

FOR FURTHER INFORMATION CONTACT: Heather Hamilton at (913) 551-7039.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This section provides 
additional information by addressing the following questions:

What is a SIP?
What is the Federal approval process for a SIP?
What does Federal approval of a state regulation mean to me?
What is being addressed in this document?
Have the requirements for approval of a SIP revision been met?
What action is EPA taking?

What Is a SIP?

    Section 110 of the Clean Air Act (CAA) requires States to develop 
air pollution regulations and control strategies to ensure that State 
air quality meets the national ambient air quality standards 
established by EPA. These ambient standards are established under 
section 109 of the CAA, and they currently address six criteria 
pollutants. These pollutants are: carbon monoxide, nitrogen dioxide, 
ozone, lead, particulate matter, and sulfur dioxide.
    Each State must submit these regulations and control strategies to 
us for approval and incorporation into the Federally-enforceable SIP.
    Each Federally-approved SIP protects air quality primarily by 
addressing air pollution at its point of origin. These SIPs can be 
extensive, containing state regulations or other enforceable documents 
and supporting information such as emission inventories, monitoring 
networks, and modeling demonstrations.

What Is the Federal Approval Process for a SIP?

    In order for State regulations to be incorporated into the 
Federally-enforceable SIP, States must formally adopt the regulations 
and control strategies consistent with State and Federal requirements. 
This process generally includes a public notice, public hearing, public 
comment period, and a formal adoption by a State-authorized rulemaking 
body.
    Once a State rule, regulation, or control strategy is adopted, the 
State submits it to us for inclusion into the SIP. We must provide 
public notice and seek additional public comment regarding the proposed 
Federal action on the State submission. If adverse comments are 
received, they must be addressed prior to any final Federal action by 
us.
    All State regulations and supporting information approved by EPA 
under section 110 of the CAA are incorporated into the Federally-
approved SIP. Records of such SIP actions are maintained in the Code of 
Federal Regulations (CFR) at title 40, part 52, entitled ``Approval and 
Promulgation of Implementation Plans.'' The actual State regulations 
which are approved are not reproduced in their entirety in the CFR 
outright but are ``incorporated by reference,'' which means that we 
have approved a given State regulation with a specific effective date.

What Does Federal Approval of a State Regulation Mean to Me?

    Enforcement of the State regulation before and after it is 
incorporated into the Federally-approved SIP is primarily a state 
responsibility. However, after the regulation is Federally approved, we 
are authorized to take enforcement action against violators. Citizens 
are also offered legal recourse to address violations as described in 
section 304 of the CAA.

What Is Being Addressed in This Document?

    This action approves the adoption of State rule K.A.R. 28-19-350, 
Prevention of Significant Deterioration of Air Quality, and approves 
the recission of the existing rule sections K.A.R. 28-19-17a through 
28-19-17q which comprised the prior body of Kansas' Prevention of 
Significant Deterioration of Air Quality regulations. K.A.R. 28-19-17 
is being revised in order to provide a cross-reference to the new 
regulations. This revision adopts by reference 40 CFR 52.21, as in 
effect on July 1, 2000, with the exceptions of 52.21(a); 52.21(f) 
through (h); 52.21(m)(l)(v); 52.21(q); 52.21(s) through (u); and 
52.21(w).
    The proposed changes to the State Prevention of Significant 
Deterioration (PSD) program clarify that the following Federal changes 
have been adopted by the Kansas PSD Program: (1) Adoption of the PM10 
(particulate matter with a nominal aerodynamic diameter of 10 
micrometers or less) increment; (2) adoption of provisions regarding 
calculating actual emissions for electric utility steam generating 
units; (3) adoption of provisions relating to clean coal technology; 
(4) adoption of provisions relating to pollution control projects at 
existing electric utility steam generating units; (5) adoption of the 
significance level for non-methane organic compounds at municipal solid 
waste landfills; and (6) adoption of the significance levels for 
organics, metals and acid gases from municipal waste combustors. This 
action also allows the opportunity to renumber the PSD rules to further 
the ongoing renumbering of the Kansas Air Quality Regulations.
    This regulation was adopted by the Kansas Department of Health and 
Environment on October 30, 2002, and became effective on November 22, 
2002.

Have the Requirements for Approval of a SIP Revision Been Met?

    The state submittal has met the public notice requirements for SIP 
submissions in accordance with 40 CFR 51.102. The submittal also 
satisfied the

[[Page 8846]]

completeness criteria of 40 CFR part 51, appendix V. In addition, as 
explained above and in more detail in the technical support document 
which is part of this document, the revision meets the substantive SIP 
requirements of the CAA, including section 110 and implementing 
regulations.

What Action Is EPA Taking?

    EPA is approving as a revision to the Kansas SIP rule K.A.R. 28-19-
350, Prevention of Significant Deterioration of Air Quality; the 
recission of existing K.A.R. 28-19-17a through 28-19-17q which 
comprised the prior body of Kansas' Prevention of Significant 
Deterioration of Air Quality regulations, and the revision to K.A.R. 
28-19-17 which provides a cross-reference to the new regulations. These 
revisions were adopted by the State on October 30, 2002, and became 
effective on November 22, 2002. These revisions were submitted on 
December 10, 2002.
    We are processing this action as a final action because it adds 
noncontroversial regulations to the SIP. We do not anticipate any 
adverse comments. Please note that if EPA receives adverse comment on 
part of this rule and if that part can be severed from the remainder of 
the rule, EPA may adopt as final those parts of the rule that are not 
the subject of an adverse comment.

Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves State law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by State law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under State law and does 
not impose any additional enforceable duty beyond that required by 
State law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have federalism 
implications because it does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999). This action merely approves a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the CAA. 
This rule also is not subject to Executive Order 13045, ``Protection of 
Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997), because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. In this 
context, in the absence of a prior existing requirement for the State 
to use voluntary consensus standards (VCS), EPA has no authority to 
disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the CAA. Thus, the requirements of section 
12(d) of the National Technology Transfer and Advancement Act of 1995 
(15 U.S.C. 272 note) do not apply. This rule does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    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 rule 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 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 April 28, 2003. 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 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, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: February 20, 2003.
James B. Gulliford,
Regional Administrator, Region 7.

    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 et seq.

Subpart R--Kansas

    2. In Sec.  52.870 the table in paragraph (c) is amended:
    a. Under the heading for ``Attainment Area Requirements'' by 
revising K.A.R. 28-19-17;
    b. Under the heading for ``Attainment Area Requirements'' by 
removing the entries for K.A.R. 28-19-17a through K.A.R. 28-19-17q;
    c. Under the heading for ``Construction Permits and Approvals'' by 
adding in numerical order an entry for K.A.R. 28-19-350.
    The revision and addition read as follows:


Sec.  52.870  Identification of plan.

* * * * *
    (c) * * *

[[Page 8847]]



                                         EPA-Approved Kansas Regulations
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                                                       State
         Kansas citation                Title        effective     EPA approval              Comments
                                                        date           date
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       Kansas Department of Health and Environment Ambient Air Quality Standards and Air Pollution Control
---------------------------------
                                                  * * * * * * *
---------------------------------
                                          Attainment Area Requirements
---------------------------------
K.A.R. 28-19-17.................  Prevention of        11/22/02  2/26/03 and FR   K.A.R. 28-19-17a through 28-19-
                                   Significant                    page citation.   17q revoked. Provision moved
                                   Deterioration                                   to K.A.R. 28-19-350.
                                   of Air Quality.
---------------------------------
                                                  * * * * * * *
---------------------------------
                                       Construction Permits and Approvals
---------------------------------
                                                  * * * * * * *
---------------------------------
K.A.R. 28-19-350................  Prevention of        11/22/02  2/26/03 and FR   ..............................
                                   Significant                    page citation.
                                   Deterioration
                                   of Air Quality.
---------------------------------
                                                  * * * * * * *
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[FR Doc. 03-4626 Filed 2-25-03; 8:45 am]
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