[Federal Register Volume 72, Number 102 (Tuesday, May 29, 2007)]
[Rules and Regulations]
[Pages 29429-29431]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-10235]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R07-OAR-2006-0973; FRL-8318-6]


Approval and Promulgation of Implementation Plans; State of 
Kansas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving revisions to Kansas' State Implementation 
Plan (SIP) to include updates to its Prevention of Significant 
Deterioration (PSD) of Air Quality rule, which incorporate portions of 
the New Source Review (NSR) program promulgated by the Environmental 
Protection Agency in December 2002. Specifically, these revisions adopt 
by reference provisions of 40 CFR 52.21 as in effect July 1, 2004, 
except for subsections with references to the clean unit exemptions, 
pollution control projects, and the record keeping provisions for the 
actual-to-projected-actual emissions applicability test. Kansas did not 
adopt the latter provisions because of the June 2005 decision by the 
United States Court of Appeals for the District of Columbia Circuit, 
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 applicability test. We 
proposed to approve the revisions on January 31, 2007, and received no 
comments on the proposal.

DATES: This rule is effective on June 28, 2007.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R07-OAR-2006-0973. All documents in the docket are listed on 
the http://www.regulations.gov Web site. Although listed in the index, 
some information is not publicly available, i.e., CBI 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 
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 66101. The Regional Office's official hours 
of business are Monday through Friday, 8:00 to 4:30 excluding Federal 
holidays. 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

[[Page 29430]]

EPA. This section provides additional information by addressing the 
following questions:

What is the Federal Approval Process for a SIP?
What is the background of this action?
What is EPA's final action on Kansas' rule to incorporate NSR 
reform?
Have the requirements for approval of a SIP revision been met?

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 is the Background of This Action?

    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 consider plant-wide 
emission changes in order to determine whether or not a significant 
emission increase has been triggered under 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).
    After the 2002 NSR Reform rules were finalized and effective, 
various petitioners challenged numerous aspects of these rules, along 
with portions of EPA's 1980 NSR rules (45 FR 5276, August 7, 1980). On 
June 24, 2005, the District of Columbia Circuit Court of Appeals issued 
a decision on the challenges to the 2002 NSR Reform Rules. See New York 
v. United States, 413 F.3d (DC Cir. 2005). In summary, the Court 
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.
    The Kansas rule was 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.
    This rule adopts by reference sections of 40 CFR 52.21 as in effect 
July 1, 2004, except for subsections with references to the clean unit 
exemptions, pollution control projects, and the record keeping 
provisions for the actual-to-projected-actual emissions applicability 
test. Kansas did not adopt the latter provisions because of the June 
24, 2005, District of Columbia Court of Appeals decision.

What is EPA's Final Action on Kansas' Rule to Incorporate NSR Reform?

    In this action, we are approving revisions to Kansas' air quality 
regulation, K.A.R. 28-19-350, entitled Prevention of Significant 
Deterioration (PSD) of Air Quality, into the SIP. The final action 
described in this section is identical to the action we proposed in the 
January 31, 2007, notice of proposed rulemaking (72 FR 4472). The 
rationale for this action is described in more detail in the proposal. 
EPA received no comments on the proposal. This SIP amendment 
incorporates by reference the Federal PSD program in 40 CFR 52.21, 
including the 2002 NSR Reform rules, except for subsections with 
references to the clean unit exemptions, pollution control projects, 
and the recordkeeping provisions for the actual-to-projected-actual 
emissions applicability test.

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 proposed rule, 
EPA believes that the revisions meet the substantive SIP requirements 
of the CAA, including section 110 and implementing regulations.

Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
final 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 final 
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 final 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 final 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 final 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 approves a

[[Page 29431]]

state rule implementing a Federal standard.
    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 final 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 July 30, 2007. 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: May 14, 2007.
John B. Askew,
Regional Administrator, Region 7.

0
Chapter I, title 40 of the Code of Federal Regulations is amended as 
follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart R--Kansas

0
2. In Sec.  52.870(c) the table is amended by revising an entry for 
K.A.R. 28-19-350 to read as follows:


Sec.  52.870  Identification of plan.

* * * * *
    (c) * * *

                                         EPA-Approved Kansas Regulations
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                                                        State
       Kansas citation                 Title          effective     EPA approval date          Explanation
                                                         date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
K.A.R. 28-19-350.............  Prevention of            06/30/06  05/29/07 [insert FR   Kansas did not adopt
                                Significant                        page number where     subsections with
                                Deterioration (PSD)                the document          references to the clean
                                of Air Quality.                    begins].              unit exemptions,
                                                                                         pollution control
                                                                                         projects, and the
                                                                                         recordkeeping
                                                                                         provisions for the
                                                                                         actual-to-projected-
                                                                                         actual emissions
                                                                                         applicability test
                                                                                         because of the June 24,
                                                                                         2005, decision of the
                                                                                         United States Court of
                                                                                         Appeals for the
                                                                                         District of Columbia
                                                                                         Circuit relating to the
                                                                                         Clean Unit Exemption,
                                                                                         Pollution Control
                                                                                         Projects and the
                                                                                         recordkeeping
                                                                                         provisions for the
                                                                                         actual-to-projected-
                                                                                         actual emissions
                                                                                         applicability test.
 
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[FR Doc. E7-10235 Filed 5-25-07; 8:45 am]
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