[Federal Register Volume 68, Number 58 (Wednesday, March 26, 2003)]
[Rules and Regulations]
[Pages 14540-14542]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-7051]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[KS 172-1172a; FRL-7471-9]


Approval and Promulgation of Implementation Plans and Approval 
Under Sections 110 and 112(l); 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 
applies to small sources and creates a permit-by-rule that provides an 
alternative for certain small emission sources which otherwise would be 
required to apply for an operating permit. Small sources not operating 
at or above the threshold levels which trigger source-specific 
operating permit requirements are provided an option to operate under 
the conditions of this permit-by-rule in lieu of applying for the 
operating permit. 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 May 27, 2003, unless 
EPA receives adverse comments by April 25, 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. 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 approval under Section 112(l)?
    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 Approval Under Section 112(l)?

    Section 112(l) of the CAA provides authority for EPA to delegate a 
program to regulate hazardous air pollutants (HAPs) to the states and 
local agencies. EPA has delegated authority for this program to Kansas 
and has approved the state's Class II rules as they pertain to HAPs 
under this authority.

What Is Being Addressed in This Document?

    On October 4, 2002, Kansas made revisions to state rule K.A.R. 28-
19-564; Class II Operating Permits; Permits-by-Rule; Operating Permits 
for Sources with Actual Emissions Less Than 50 Percent of Major Source 
Thresholds.
    This rule creates a permit-by-rule that provides an alternative for 
certain small emission sources which otherwise would be required to 
apply for a full Class I (major source) or Class II (minor source) 
operating permit. Small sources which have emissions at 25 percent of 
the Class I or Class II threshold levels are required to notify the 
state of their desire to operate under this regulation and to maintain 
the required records. Small sources which have emissions at 50 percent 
of the threshold levels are required to apply to the state, pay the 
appropriate fee and maintain the required records. These provisions 
reduce the burden associated with the time and effort otherwise 
required to apply for and obtain a Class I or Class II operating 
permit.
    The exemption is not available for sources which are subject to 
Title V operating permit requirements for reasons other that their 
potential to emit at major source levels (e.g., 100 or more tons per 
year of a criteria pollutant). The exemption only relates to the 
operating permit program. It requires sources to continue to operate 
well below the levels which trigger the Class I or Class II permitting 
requirements and demonstrate, through appropriate

[[Page 14541]]

recordkeeping as specified in the rule, that they are operating within 
those levels. Any source which exceeds the 25 or 50 percent actual 
emissions level must apply for an appropriate operating permit based on 
potential emissions.
    This regulation was adopted by the Kansas Department of Health and 
Environment on September 9, 2002, and became effective on October 4, 
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 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-
564; Class II Operating Permits; Permits-by-Rule; Sources With Actual 
Emissions Less Than 50 Percent of Major Source Thresholds, which was 
submitted on December 19, 2002.
    This rule is also being approved pursuant to section 112(l) of the 
CAA.
    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 (Public Law 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 May 27, 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 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: March 13, 2003.
Nat Scurry,
Acting 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 by adding 
in numerical order an entry for ``K.A.R. 28-19-564'' under the table 
heading ``Class II Operating Permits.''
    The addition reads as follows:


Sec.  52.870  Identification of plan.

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    (c) * * *

[[Page 14542]]



                                         EPA-Approved Kansas Regulations
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                                                      State        EPA approval
       Kansas citation               Title       effective date        date                   Comments
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       Kansas Department of Health and Environment Ambient Air Quality Standards and Air Pollution Control
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                                                 * * * * * * *
                                           Class II Operating Permits
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                                                  * * * * * * *
K.A.R. 28-19-564.............  Permit-by-Rule;         10/04/02  3/26/03 and FR
                                Sources with                      page citation.
                                Actual
                                Emissions Less
                                Than 50 Percent
                                of Major Source
                                Thresholds.
 
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[FR Doc. 03-7051 Filed 3-25-03; 8:45 am]
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