[Federal Register Volume 72, Number 20 (Wednesday, January 31, 2007)]
[Proposed Rules]
[Pages 4472-4475]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-1518]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R07-OAR-2006-0973; FRL-8274-8]


Approval and Promulgation of Implementation Plans; State of 
Kansas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a request to revise the State 
Implementation Plan (SIP) made by the state of Kansas to include 
updates to its Prevention of Significant Deterioration (PSD) of Air 
Quality rule. The Kansas revision adopts by reference provisions of 40 
CFR 52.21 as in effect July 1, 2004, except for subsections with 
references to Clean Unit Exemptions, Pollution Control Projects, and 
the record keeping

[[Page 4473]]

provisions for the actual-to-projected-actual emissions projections. 
Kansas did not adopt the latter provisions because of the June 24, 
2005, United States Court of Appeals for the District of Columbia 
Circuit's decision, which vacated the Clean Unit Exemption and 
Pollution Control Project provisions and remanded back to EPA the 
record keeping provisions for the actual-to-projected-actual emissions 
projections standard for when a source must keep certain project 
related records. If approved, EPA would incorporate the revisions into 
the Kansas SIP.

DATES: Comments must be received on or before March 2, 2007.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R07-
OAR-2006-0973, by one of the following methods:
    1. http://www.regulations.gov: Follow the online instructions for 
submitting comments.
    2. E-mail: [email protected].
    3. Mail: Gina Grier, Environmental Protection Agency, Air Planning 
and Development Branch, 901 North 5th Street, Kansas City, Kansas 
66101.
    4. Hand Delivery or Courier: Deliver your comments to: Gina Grier, 
Environmental Protection Agency, Air Planning and Development Branch, 
901 North 5th Street, Kansas City, Kansas 66101.
    Instructions: Direct your comments to Docket ID No. EPA-R07-OAR-
2006-0973. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket. All documents in the electronic docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Environmental 
Protection Agency, Air Planning and Development Branch, 901 North 5th 
Street, Kansas City, Kansas. EPA requests that you contact the person 
listed in the FOR FURTHER INFORMATION CONTACT section to schedule your 
inspection. 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: Gina Grier at (913) 551-7078, or by e-
mail at [email protected].

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 the Federal approval process for a SIP?
What is being addressed in this document?
What is the background for EPA's New Source Review (NSR) Reform 
rule?
What is Kansas's NSR Reform rule and what action has Kansas 
requested on the rule?
Have the requirements for approval of a SIP revision been met?
What action is EPA proposing?

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 Clean Air Act (CAA or Act) 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 is being addressed in this document?

    We are proposing to approve the Kansas Department of Health and 
Environment's (KDHE) revision to Kansas Administrative Regulation 
(K.A.R.) 28-19-350, Prevention of Significant Deterioration of Air 
Quality. Kansas adopted the applicable provisions of 40 CFR 52.21, 
except for subsections that are not applicable to Kansas or are stayed, 
vacated, or remanded by Federal court order, or are reserved for future 
use.
    The rules were submitted to EPA on July 25, 2006. The submission 
included comments on the rules made during the state's adoption 
process, the state's response to comments and other information 
necessary to meet EPA's completeness criteria. For additional 
information on completeness criteria, the reader should refer to 40 CFR 
part 51, appendix V.

What is the background for EPA's New Source Review (NSR) Reform rule?

    The 2002 NSR Reform rules are part of EPA's implementation of Parts 
C and D of title I of the CAA, 42 U.S.C. 7470-7515. Part C of title I 
of the CAA, 42 U.S.C. 7470-7492, is the PSD program, which applies in 
areas that meet the National Ambient Air Quality Standards (NAAQS), 
also known as ``attainment areas'' and in areas for which there is 
insufficient information to determine whether the area meets the NAAQS, 
also known as, ``unclassifiable'' areas. Part D of Title I of the CAA, 
42 U.S.C. 7501-7515, is the nonattainment New Source Review (NNSR) 
program, which applies in areas that are not in attainment of the 
NAAQS, also known as ``nonattainment areas.'' Collectively, the PSD and 
NNSR programs are referred to as the ``New Source Review''

[[Page 4474]]

or NSR programs. EPA regulations implementing these programs are 
contained in 40 CFR 51.165, 51.166, 52.21, 52.24, and part 51, appendix 
S.
    The CAA NSR programs are preconstruction review and permitting 
programs applicable to new and modified stationary sources of air 
pollutants regulated under the CAA. The NSR programs of the CAA include 
a combination of air quality planning and air pollution control 
technology program requirements. Briefly, section 109 of the CAA, 42 
U.S.C. 7409, requires EPA to promulgate primary NAAQS to protect public 
health and secondary NAAQS to protect public welfare. Once EPA sets 
those standards, States must develop, adopt, and submit to EPA for 
approval, a SIP that contains emissions limitations and other control 
measures to attain and maintain the NAAQS. Each SIP is required to 
contain a preconstruction review program for the construction and 
modification of any stationary source of air pollution to assure that 
the NAAQS are achieved and maintained; to protect areas of clean air; 
to protect air quality related values (such as visibility) in national 
parks and other areas; to assure that appropriate emissions controls 
are applied, to maximize opportunities for economic development 
consistent with the preservation of clean air resources; and to ensure 
that any decision to increase air pollution is made only after full 
public consideration of the consequences of the decisions.
    The 2002 NSR Reform rules made changes to five areas of the NSR 
programs. In summary, the 2002 rules: (1) Provide a new method for 
determining baseline actual emissions; (2) adopt an actual-to-
projected-actual methodology for determining whether a major 
modification has occurred; (3) allow major stationary sources to comply 
with plant-wide applicability limits (PALs) to avoid having a 
significant emission increase that triggers the requirements of the 
major NSR program; (4) provide a new applicability provision for 
emissions units that are designated clean units; and (5) exclude 
pollution control projects (PCPs) from the definition of physical 
change or change in the method of operation.
    After the 2002 NSR Reform rules were finalized and effective, 
various petitioners challenged numerous aspects of the 2002 NSR Reform 
rules, along with portions of EPA's 1980 NSR rules (45 FR 5276 August 
7, 1980). On June 24, 2005, the District of Columbia Court of Appeals 
issued a decision on the challenges to the 2002 NSR Reform Rules. New 
York v. United States, 413 F.3d (DC Cir. 2005). In summary, the Court 
of Appeals for the District of Columbia vacated portions of the rules 
pertaining to clean units and pollution control projects, remanded a 
portion of the rules regarding exemption from record keeping, e.g., 40 
CFR 52.21(r)(6) and 40 CFR 51.166(r)(6), and let stand the other 
provisions included as part of the 2002 NSR Reform rules. EPA has not 
yet responded to the Court's remand regarding record keeping 
provisions.

What is Kansas's NSR Reform rule and what action has Kansas requested 
on the rule?

    In this action, we propose approval of revisions to Kansas's Air 
Quality Regulation, K.A.R. 28-19-350, Prevention of Significant 
Deterioration of Air Quality, into the SIP. This rule incorporates by 
reference the Federal PSD program in 40 CFR 52.21, including the 2002 
NSR Reform rules described above, with the exception of portions of the 
rule relating to provisions vacated or remanded by the court.
    Under Part C of Title I of the CAA, states have the primary 
responsibility for developing a SIP and issuing permits subject to the 
emission limits and other control measures developed in the plan. NSR 
ensures the protection of air quality because it designates a specific 
plan customized to prevent significant deterioration of air quality 
from individual major source emitters of air pollutants, such as power 
plants, refineries or manufacturing facilities. The permit also 
requires the application of Best Available Control Technology (BACT) to 
new or modified facilities. The NSR permit program encompassed by 
K.A.R. 28-19-350 is for sources located in areas where the air is 
designated ``attainment'' or unclassifiable and meets the requirement 
to protect human health. A major stationary source is required to 
obtain a permit before it can begin construction or make a major 
modification if the modification or construction will increase 
emissions by an amount large enough to trigger NSR requirements.
    A PSD permit places allowable limits on pollution emissions from a 
newly constructed or newly modified stationary source. As part of the 
PSD permitting process, Kansas completes required air quality modeling 
analysis of the project to ensure the project maintains compliance with 
the NAAQS. Kansas also tracks and controls the emission of air 
pollutants by calculating the maximum increase concentration allowed to 
occur above an established background level, known as a PSD increment.
    The revision to K.A.R. 28-19-350 incorporates by reference the 
provisions of the EPA NSR reform rule referenced above. This includes 
(1) the new methodology for determining baseline actual emissions; (2) 
the option of using the actual-to-projected-actual emissions for 
determining emissions increases; and (3) the provisions relating to 
plant-wide applicability limits. It does not incorporate the provisions 
vacated or remanded by the court, described previously. In addition, 
the state revision adds titles to each subsection for ease of reading. 
Subsection (c) clarifies the term ``Administrator'' in the Federal 
rule, to indicate where it means Administrator of EPA and where it 
means KDHE, as separate from state agency administration. Subsection 
(h) specifies that the state construction approval requirements also 
apply to the PSD permit issued under the regulation. Subsection (k) 
ensures that the public notice of PSD permit actions state whether the 
action will adversely impact Federal class I areas.
    Because the Kansas rule adopts by reference relevant portions of 
the Federal rule, EPA believes it meets the requirement of the CAA.

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 that is part of this docket, EPA believes that the 
revisions meet the substantive SIP requirements of the CAA, including 
section 110 and implementing regulations.

What action is EPA proposing?

    We propose to approve revisions to Kansas's Air Quality Regulation, 
K.A.R. 28-19-350, Prevention of Significant Deterioration of Air 
Quality.

Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed 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 
proposed action merely proposes to approve state law as meeting Federal 
requirements and imposes no additional requirements

[[Page 4475]]

beyond those imposed by State law. Accordingly, the Administrator 
certifies that the proposed approvals in this proposed 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 proposes to approve 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 proposed 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 proposes to approve 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 proposed 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 proposed 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.).

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: January 24, 2007.
John B. Askew,
Regional Administrator, Region 7.
[FR Doc. E7-1518 Filed 1-30-07; 8:45 am]
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