[Federal Register Volume 73, Number 27 (Friday, February 8, 2008)]
[Rules and Regulations]
[Pages 7468-7472]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-2189]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 70

[EPA-R07-OAR-2007-0829; FRL-8526-2]


Approval and Promulgation of Implementation Plans and Operating 
Permits Program; State of Kansas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving a revision to the Kansas State Implementation 
Plan (SIP) for the purpose of revoking the Sulfur Compound Emissions 
rule and for the purpose of approving revisions to the Class I major 
source operating permit annual emissions inventory rule and several 
Class II minor source operating permits rules.
    EPA is also approving an additional submittal by the State of 
Kansas pertaining to amendments of the Class II operating permit rules 
which were amended by the Kansas Department of Health and Environment 
(KDHE) on February 20, 1998, but had not previously been submitted for 
EPA approval. In addition, EPA is approving a revision to the Class II 
operating permit rules adopted in 2005. The Class II operating permit 
rules were primarily revised to align the annual emission inventory 
reporting date deadline with the June 1 payment of Annual Emissions Fee 
rule.
    EPA approval will ensure consistency between the state and the 
Federally-approved rules.

DATES: This direct final rule will be effective April 8, 2008, without 
further notice, unless EPA receives adverse comment by March 10, 2008. 
If adverse comment is 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: Submit your comments, identified by Docket ID No. EPA-R07-
OAR-2007-0829, by one of the following methods:
    1. http://www.regulations.gov. Follow the on-line 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-
2007-0829. 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 through http://www.regulations.gov or e-mail information that you consider to be CBI 
or otherwise protected. 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, 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 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 66101. The Regional Office's official hours of 
business are Monday through Friday, 8 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 EPA. This section provides 
additional information by addressing the following questions:

What is a SIP?

[[Page 7469]]

What is the Federal approval process for a SIP?
What does Federal approval of a state regulation mean to me?
What is the Part 70 operating permits program?
What is the Federal approval process for an operating permits 
program?
What is being addressed in this document?
Have the requirements for approval of a SIP revision and a Part 70 
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 the Part 70 operating permits program?

    The CAA Amendments of 1990 require all states to develop operating 
permits programs that meet certain Federal criteria. In implementing 
this program, the states are to require certain sources of air 
pollution to obtain permits that contain all applicable requirements 
under the CAA. One purpose of the part 70 operating permits program is 
to improve enforcement by issuing each source a single permit that 
consolidates all of the applicable CAA requirements into a Federally-
enforceable document. By consolidating all of the applicable 
requirements for a facility into one document, the source, the public, 
and the permitting authorities can more easily determine what CAA 
requirements apply and how compliance with those requirements is 
determined.
    Sources required to obtain an operating permit under this program 
include ``major'' sources of air pollution and certain other sources 
specified in the CAA or in our implementing regulations. For example, 
all sources regulated under the acid rain program, regardless of size, 
must obtain permits. Examples of major sources include those that emit 
100 tons per year or more of volatile organic compounds, carbon 
monoxide, lead, sulfur dioxide, nitrogen dioxide, or PM10; 
those that emit 10 tons per year of any single hazardous air pollutant 
(HAP) (specifically listed under the CAA); or those that emit 25 tons 
per year or more of a combination of HAPs.
    Revisions to the state operating permits program are also subject 
to public notice, comment, and our approval.

What is the Federal approval process for an operating permits program?

    In order for state regulations to be included in the Federally-
enforceable Title V operating permits program, states must formally 
adopt regulations 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 approved operating 
permits program. 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 502 of the CAA, including revisions to the state program, 
are included in the Federally-approved operating permits program. 
Records of such actions are maintained in the CFR at Title 40, part 70, 
appendix A, entitled ``Approval Status of State and Local Operating 
Permits Programs.''

What is being addressed in this document?

Revocation of Sulfur Compounds Emissions Rule

    EPA is approving the revocation of the Kansas for Sulfur Compound 
Emissions rule, K.A.R. 28-19-22. The rule, which is related to 
emissions of sulfur compounds, and was originally adopted in 1972, 
established limitations for sulfur oxides emissions from primary 
nonferrous (i.e., lead and zinc) smelters, and prohibited emission or 
combustion of process gas streams (such as those found at petroleum 
refineries) containing hydrogen sulfide above the specified limits. 
Subsequent to the adoption of this rule and its inclusion into the SIP, 
the lead and zinc smelters in Kansas subject to this rule have ceased 
to operate, and refineries once potentially subject to this rule are 
now subject to more stringent requirements for sulfur emissions under 
the new source performance standards (NSPS).
    The Kansas Department of Health and Environment has determined that 
the sulfur rule may be revoked without adverse impact on air quality.
    EPA's review of the material submitted indicates the state has 
amended the air quality rules in accordance with the requirements of 
the Clean Air Act. State action to revoke the sulfur rule and to change 
the inventory

[[Page 7470]]

regulations does not impair its ability to protect the NAAQS. Language 
in both 1998 and 2005 permit-by-rule revisions was clarified and 
rearranged but there were no substantive changes of the requirements. 
We have reviewed the information submitted by Kansas in support of this 
determination and agree with this conclusion.

Revisions to Class I and Class II Operating Permit Rules for 1998 and 
2005 Submissions

    Six of the regulations proposed for amendment consist of the 
operating permit regulations principally concerning the emission 
inventory requirements, and permit-by-rules which include a due date 
for inventory submittals. The time for filing the reports was set in 
the 1998 amendments as June 1 of each year.
    In the 2005 revisions for Class II permit-by-rule regulations, 
K.A.R. 28-19-561 through 28-19-563, changes were made so that these 
rules were consistent with the provisions of the Class II inventory 
regulation, K.A.R. 28-19-546. (i.e., instead of specifying the due date 
in the permit-by-rule regulations, the regulations will now reference 
the date set by K.A.R. 28-19-546, so that only one rule will require 
revision to accomplish the change.) This reference changed the 
submittal date back to April 1 of each year, to decrease the short-term 
surge of combined Class I and Class II submittals and alleviate the 
workload for KDHE staff.
    The 2005 revision to K.A.R. 28-19-517, annual emissions inventories 
for the Class I operating permits clarifies that under the circumstance 
that June 1 falls on a weekend or holiday, the deadline for application 
submittal will fall on the next business day (Title V).
    The 2005 revision to K.A.R. 28-19-542, reporting requirements for 
sources operating under a permit-by-rule has been updated to cross-
reference a recently adopted permit-by-rule, K.A.R. 28-19-564. EPA 
previously approved rule K.A.R. 28-19-564 (SIP).
    In the 1998 revision, K.A.R. 28-19-546, annual emission inventory, 
requirements for Class II operating permits was amended to change the 
annual emissions inventory reporting date for owners and operators of 
stationary sources operating under Class II operating permits from 
April 1 to June 1, to comply with the change in the payment date from 
April 1 to June 1 (SIP). The 2005 revision was revised to modify the 
date from June 1 back to April 1. The rule also clarified that if April 
1 falls on a weekend or holiday, the deadline for application submittal 
will fall on the next business day (SIP).
    The 1998 revision to K.A.R. 28-19-561, reciprocating engines under 
a permit-by-rule, was amended to change the annual emissions inventory 
reporting date for owners and operators of stationary sources operating 
under Class II operating permits from April 1 to June 1, and include 
language to define the time period requirements for record retention. 
K.A.R. 28-19-546 was revised to change the date back to April 1 and 
additional amendments were made to clarify that the requirements to 
develop compliance plans are not triggered by paperwork violations, but 
only by the operation of a source at a level exceeding the defined 
levels of the regulation (SIP).
    In the 2005 revision to K.A.R. 28-19-561, reciprocating engines, 
K.A.R. 28-19-546 was referenced and changes stipulate that the 
requirements will apply to stationary reciprocating engines with a 
capacity equal to or greater than 730 horsepower, 550 kilowatts, or 5.1 
million Btu per hour fuel input. A source with less capacity shall be 
presumed to have a potential-to-emit less than 100 tons of regulated 
pollutant per year (SIP).
    In the 1998 revisions for K.A.R. 28-19-562, organic solvent 
evaporative sources under a permit-by-rule, was amended to change the 
annual emissions inventory reporting date for owners and operators of 
stationary sources operating under Class II operating permits from 
April 1, to June 1, and include language to define the time period 
requirements for record retention (SIP). In the 2005 revisions, K.A.R. 
28-19-562, organic solvent evaporative sources order was rearranged, 
but the emission levels and requirements of the rule were retained 
(SIP). K.A.R. 28-19-546 was also referenced.
    In the revisions for 1998 K.A.R. 28-19-563, hot asphalt facilities 
permit-by-rule was amended to change the annual emissions inventory 
reporting date for owners and operators of stationary sources operating 
under Class II operating permits from April 1, to June 1, and include 
language to define the time period requirements for record retention 
(SIP). In the 2005 revisions, K.A.R. 28-19-546 was revised to change 
the date submittal back to April 1 and the rule was rearranged, but the 
emission levels and requirements of the rule were retained (SIP).
    The 2005 revisions for Class II permit-by-rule regulations were 
changed to make these rules consistent with the provisions of the Class 
II inventory regulation. Grammatical revisions are also proposed to 
better conform to the Department of Administration's requirements.
    While not a part of the SIP, and therefore not a component of this 
SIP revision, it should be noted that the Class III operating permit 
regulations (K.A.R. 28-19-575 through 578) were also revoked and the 
revocation was part of the same hearing as for these SIP regulations.

Have the requirements for approval of a SIP revision and a Part 70 
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 or 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, the revisions meet the 
substantive SIP requirements of the CAA, including section 110 and 
implementing regulations. Finally, the submittal met the substantive 
requirements of Title V of the 1990 CAA Amendments and 40 CFR part 70.
    EPA's review of the material submitted indicates the state has 
amended the air quality rules in accordance with the requirements of 
the Clean Air Act. Revisions to revoke the sulfur rule and to change 
the inventory regulations do not interfere with attainment of the 
NAAQS. Language in the permit-by-rule revisions was rearranged but had 
no substantive changes of the requirements.

What action is EPA taking?

    We are processing this action on the State's amendments to the SIP 
approved rules and the 40 CFR part 70 operating permit program as a 
direct final action because the revisions make routine changes to the 
existing rules which are noncontroversial. Therefore, 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

[[Page 7471]]

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 approves a state rule implementing a 
Federal standard.
    In reviewing SIP and Title V 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 Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by April 8, 2008. 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.

40 CFR Part 70

    Administrative practice and procedure, Air pollution control, 
Intergovernmental relations, Operating permits, Reporting and 
recordkeeping requirements.

    Dated: January 28, 2008.
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 the table in paragraph (c) is amended by:
0
a. Removing the entry for K.A.R. 28-19-22 under Processing Operation 
Emissions;
0
b. Revising the entries for K.A.R. 28-19-542; 28-19-546, 28-19-561; 28-
19-562 and 28-19-563 to read as follows:


Sec.  52.820  Identification of plan.

* * * * *
    (c) * * *

                                         EPA-Approved Kansas Regulations
----------------------------------------------------------------------------------------------------------------
                                                              State
        Kansas citation                   Title             effective    EPA approval date       Explanation
                                                               date
----------------------------------------------------------------------------------------------------------------
      Kansas Department of Health and Environment Ambient Air Quality Standards and Air Pollution Control
 
                                                  * * * * * * *
 
                                           Class II Operating Permits
 
                                                  * * * * * * *
K.A.R. 28-19-542                Permit-By-Rule...........   09/23/2005  02/08/2008 [insert   ...................
                                                                         FR page number
                                                                         where the document
                                                                         begins].
 
       Kansas Department of Health and Environment Ambient Air Quality Standards and Air Pollution Control
 

[[Page 7472]]

 
                                                  * * * * * * *
K.A.R. 28-19-546                Annual Emission Inventory   09/23/2005  02/08/2008 [insert   ...................
                                                                         FR page number
                                                                         where the document
                                                                         begins].
K.A.R. 28-19-561                Permit-by-Rule;             09/23/2005  02/08/2008 [insert   ...................
                                 Reciprocating Engines.                  FR page number
                                                                         where the document
                                                                         begins].
K.A.R. 28-19-562                Permit-by-Rule; Organic     09/23/2005  02/08/2008 [insert   ...................
                                 Solvent Evaporative                     FR page number
                                 Sources.                                where the document
                                                                         begins].
K.A.R. 28-19-563                Permit-by-Rule; Hot Mix     09/23/2005  02/08/2008 [insert   ...................
                                 Asphalt Facilities.                     FR page number
                                                                         where the document
                                                                         begins].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *

PART 70--[AMENDED]

0
3. The authority citation for part 70 continues to read as follows:

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

0
4. Appendix A to part 70 is amended by adding paragraph (d) under 
``Kansas'' to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating 
Permits Programs

* * * * *
Kansas
* * * * *
    (d) The Kansas Department of Health and Environment submitted for 
program approval rule K.A.R. 28-19-517 on January 27, 2006. The state 
effective date was September 23, 2005. This revision to the Kansas 
program is approved effective April 8, 2008.
* * * * *
[FR Doc. E8-2189 Filed 2-7-08; 8:45 am]
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