[Federal Register Volume 78, Number 74 (Wednesday, April 17, 2013)]
[Proposed Rules]
[Pages 22827-22840]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-09053]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R07-OAR-2013-0233; FRL-9803-1]


Approval and Promulgation of Implementation Plans; State of 
Kansas; Infrastructure SIP Requirements for the 1997 and 2006 Fine 
Particulate Matter National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing action on four Kansas State Implementation 
Plan (SIP) submissions. First, EPA is proposing to approve portions of 
two SIP submissions from the State of Kansas addressing the applicable 
requirements of Clean Air Act (CAA) for the 1997 and 2006 National 
Ambient Air Quality Standards (NAAQS) for fine particulate matter 
(PM2.5). The CAA requires that each state adopt and submit a 
SIP to support implementation, maintenance, and enforcement of each new 
or revised NAAQS promulgated by EPA. These SIPs are commonly referred 
to as ``infrastructure'' SIPs. The infrastructure requirements are 
designed to ensure that the structural components of each state's air 
quality management program are adequate to meet the state's 
responsibilities under the CAA. EPA is also proposing to approve two 
additional SIP submissions from Kansas, one addressing the Prevention 
of Significant Deterioration (PSD) program in Kansas, and another 
addressing the requirements applicable to any board or body which 
approves permits or enforcement orders of the CAA, both of which 
support requirements associated with infrastructure SIPs.

DATES: Comments must be received on or before May 17, 2013.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R07-
OAR-2013-0233, by one of the following methods:
    1. http://www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    2. Email: [email protected].
    3. Mail: Ms. Lachala Kemp, Air Planning and Development Branch, 
U.S. Environmental Protection Agency, Region 7, Air and Waste 
Management Division, 11201 Renner Boulevard, Lenexa, KS 66219.
    4. Hand Delivery or Courier: Deliver your comments to Ms. Lachala 
Kemp, Air Planning and Development Branch, U.S. Environmental 
Protection Agency, Region 7, Air and Waste Management Division, 11201 
Renner Boulevard, Lenexa, KS 66219.
    Instructions: Direct your comments to Docket ID No. EPA-R07-OAR-
2013-0233. 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 email 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 email comment directly to EPA without 
going through http://www.regulations.gov, your email 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 should be 
free of any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
http://

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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, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
at http://www.regulations.gov or in hard copy at the U.S. Environmental 
Protection Agency, Region 7, 11201 Renner Boulevard, Lenexa, KS 66219 
from 8:00 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
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: Ms. Lachala Kemp, Air Planning and 
Development Branch U.S. Environmental Protection Agency, Region 7, 
11201 Renner Boulevard, Lenexa, KS 66219; telephone number: (913) 551-
7214; fax number: (913) 551-7065; email address: [email protected].

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

I. What is being addressed in this document?
II. What is a section 110(a)(1) and (2) Infrastructure SIP?
III. What elements are applicable under sections 110(a)(1) and (2)?
IV. What is the scope of this rulemaking as it relates to 
infrastructure SIPs?
V. What is EPA's evaluation of how the State addressed the relevant 
elements of sections 110(a)(1) and (2)?
VI. How does the March 1, 2013, Kansas PSD submission satisfy the 
2008 PM2.5 NSR Rule and the PM2.5 PSD 
Increment-SILs-SMC Rule?
VII. What are the additional provisions of the March 1, 2013, SIP 
submission that EPA is proposing to take action on?
VIII. What action is EPA proposing?
IX. Statutory and Executive Order Review
X. Statutory Authority

I. What is being addressed in this document?

    In today's proposed rulemaking, EPA is proposing action on four 
Kansas SIP submissions. EPA received the first submission on January 8, 
2008, addressing the infrastructure SIP requirements relating to the 
1997 PM2.5 NAAQS. EPA received the second submission on 
April 12, 2010, addressing the infrastructure SIP requirements relating 
to the 2006 PM2.5 NAAQS In a previous action EPA approved 
section 110(a)(2)(D)(i)(I) and (II)--Interstate and international 
transport requirements of Kansas' January 8, 2008, SIP submittal for 
the 1997 PM2.5 NAAQS (72 FR 10608, May 8, 2007); and EPA 
disapproved section 110(a)(2)(D)(i)(I)--Interstate and international 
transport requirements of Kansas' April 12, 2010, SIP submittal for the 
2006 PM2.5 NAAQS (76 FR 43143, July 20, 2011). Therefore, in 
today's action, we are not proposing to act on these portions of 
section 110(a)(2)since they have already been acted upon by EPA. If EPA 
takes final action as proposed, we will have acted on both the January 
8, 2008, and the April 12, 2010, submissions in their entirety 
excluding those provisions that are not within the scope of today's 
rulemaking as identified in section IV for both the 1997 and 2006 
PM2.5 infrastructure SIP submissions.
    The third submission was received by EPA on March 1, 2013. This 
submission revises the Kansas rule found at Kansas Administrative 
Regulations (KAR) 29-19-350 ``Prevention of Significant Deterioration 
of Air Quality'' to incorporate by reference Federal rule changes 
through July 1, 2011. These changes implement elements of the 
Prevention of Significant Deterioration (PSD) regulations relating to 
EPA's 2008 NSR PM2.5 Implementation Rule (73 FR 28321, May 
16, 2008) and certain elements of the ``Prevention of Significant 
Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers 
(PM2.5)--Increments, Significant Impact Levels (SILs) and 
Significant Monitoring Concentration (SMC)'' rule (75 FR 64864, October 
20, 2010). In addition, this rule amendment defers the application of 
PSD permitting requirements to carbon dioxide (CO2) 
emissions from bioenergy and other biogenic stationary sources.
    The fourth submission was received by EPA on March 19, 2013. This 
submittal addresses the conflict of interest provisions in section 128 
of the CAA as it relates to infrastructure SIPs described in element E 
below.\1\
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    \1\ On March 19, 2013, Kansas submitted its provisions with 
regards to CAA section 128 as part of its infrastructure SIP 
submission for the 2008 Ozone and 2010 Nitrogen 
Dioxide(NO2) NAAQS. EPA believes that these conflict of 
interest provisions are applicable to all NAAQS. Therefore, as part 
of today's rulemaking for the 1997 and 2006 p.m. 2.5 
NAAQS, we are proposing to approve these provisions into the Kansas 
SIP. See section V for further information.
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II. What is a section 110(a)(1) and (2) infrastructure SIP?

    Section 110(a)(1) of the CAA requires, in part, that states make a 
SIP submission to EPA to implement, maintain and enforce each of the 
NAAQS promulgated by EPA after reasonable notice and public hearings. 
Section 110(a)(2) includes a list of specific elements that such 
infrastructure SIP submissions must address. SIPs meeting the 
requirements of sections 110(a)(1) and (2) are to be submitted by 
states within three years after promulgation of a new or revised NAAQS. 
These SIP submissions are commonly referred to as ``infrastructure'' 
SIPs.

III. What elements are applicable under sections 110(a)(1) and (2)?

    On October 2, 2007, EPA issued guidance to address infrastructure 
SIP elements required under sections 110(a)(1) and (2) for the 1997 8-
hour ozone and PM2.5 NAAQS.\2\ On September 25, 2009, EPA 
issued guidance to address infrastructure SIP elements required under 
sections 110(a)(1) and (2) for the 2006 24-hour PM2.5 
NAAQS.\3\ EPA will address these elements below under the following 
headings: (A) Emission limits and other control measures; (B) Ambient 
air quality monitoring/data system; (C) Program for enforcement of 
control measures (PSD, New Source Review for nonattainment areas, and 
construction and modification of all stationary sources) ; (D) 
Interstate and international transport \4\; (E) Adequate authority, 
resources, implementation, and oversight; (F) Stationary source 
monitoring system; (G) Emergency authority; (H) Future SIP revisions; 
(I) Nonattainment areas; (J) Consultation with government officials, 
public notification, prevention of significant deterioration (PSD), and 
visibility protection; (K) Air quality and modeling/data; (L) 
Permitting fees; and (M) Consultation/participation by affected local 
entities.
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    \2\ William T. Harnett, Director, Air Quality Policy Division, 
Office of Air Quality Planning and Standards, ``Guidance on SIP 
Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-
hour Ozone and PM2.5 National Ambient Air Quality 
Standards,'' Memorandum to EPA Air Division Directors, Regions I-X, 
October 2, 2007 (2007 Memo).
    \3\ William T. Harnett, Director, Air Quality Policy Division, 
Office of Air Quality Planning and Standards, ``Guidance on SIP 
Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-
Hour Fine Particle (PM2.5) National Ambient Air Quality 
Standards (NAAQS),'' Memorandum to EPA Regional Air Division 
Directors, Regions I-X, September 25, 2009 (2009 Memo).
    \4\ Section 110(a)(2)(D)(i) includes four requirements referred 
to as prongs 1 through 4. Prongs 1 and 2 are provided at section 
110(a)(2)(D)(i)(I); Prongs 3 and 4 are provided at section 
110(a)(2)(D)(i)(II).

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[[Page 22829]]

IV. What is the scope of this rulemaking as it relates to 
infrastructure SIPs?

    The applicable infrastructure SIP requirements are contained in 
sections 110(a)(1) and (2) of the CAA. EPA is proposing action on each 
of the requirements of section 110(a)(2)(A) through section 
110(a)(2)(M), as applicable, except for the elements detailed in the 
following paragraphs.
    This rulemaking will not cover four substantive issues that are not 
integral to acting on a state's infrastructure SIP submission: (i) 
Existing provisions related to excess emissions during periods of 
start-up, shutdown, or malfunction at sources, that may be contrary to 
the CAA and EPA's policies addressing such excess emissions (``SSM''); 
(ii) existing provisions related to ``director's variance'' or 
``director's discretion'' that purport to permit revisions to SIP 
approved emissions limits with limited public process or without 
requiring further approval by EPA, that may be contrary to the CAA 
(``director's discretion''); (iii) existing provisions for minor source 
New Source Review (NSR) programs that may be inconsistent with the 
requirements of the CAA and EPA's regulations that pertain to such 
programs (``minor source NSR''); and, (iv) existing provisions for PSD 
programs that may be inconsistent with current requirements of EPA's 
``Final NSR Improvement Rule'' (67 FR 80186, December 31, 2002), as 
amended by the ``NSR Reform'' final rulemaking on June 13, 2007 (72 FR 
32526). Instead, EPA has indicated that it has other authority to 
address any such existing SIP defects in other rulemakings, as 
appropriate. A detailed rationale for why these four substantive issues 
are not part of the scope of infrastructure SIP rulemakings can be 
found at 76 FR 41075, 41076-41079 (July 13, 2011). See also 77 FR 
38239, 38240-38243 (June 27, 2012); and 77 FR 46361, 46362-46365 
(August 3, 2012).
    In addition to the four substantive areas above, EPA is not acting 
in this action on section 110(a)(2)(I)--Nonattainment Area Plan or Plan 
Revisions Under Part D and on the visibility protection portion of 
section 110(a)(2)(J). A detailed rationale for not acting on elements 
of these requirements is discussed within each applicable section of 
this rulemaking. As described above in section I, EPA is also not 
acting on portions of section 110(a)(2)(D)(i)--Interstate and 
international transport, as final actions have already been taken on 
portions of this element for both the Kansas 1997 and 2006 
PM2.5 infrastructure SIP submissions.
    Finally, as part of this action, EPA is evaluating the state's 
compliance with the new PSD requirements promulgated in the 
``Implementation of New Source Review (NSR) Program for Particulate 
Matter Less Than 2.5 Micrometers (PM2.5),'' (73 FR 28321, 
May 16, 2008), and the PM2.5 Increment, SILs and SMC Rule, 
(75 FR 64864, October 20, 2010). Regarding the May 16, 2008 rule, on 
January 4, 2013, the U.S. Court of Appeals in the District of Columbia, 
in Natural Resources Defense Council v. EPA, 706 F.3d 428 (DC Cir.), 
issued a judgment that remanded two of EPA's rules implementing the 
1997 PM2.5 NAAQS, including the 2008 rule. The Court ordered 
the EPA to ``repromulgate these rules pursuant to Subpart 4 consistent 
with this opinion.'' Id. at 437. Subpart 4 of Part D, Title 1 of the 
CAA establishes additional provisions for particulate matter 
nonattainment areas. The 2008 implementation rule addressed by the 
Court's decision promulgated NSR requirements for implementation of 
PM2.5 in both nonattainment areas (nonattainment NSR) and 
attainment/unclassifiable areas (PSD). As the requirements of Subpart 4 
only pertain to nonattainment areas, EPA does not consider the portions 
of the 2008 rule that address requirements for PM2.5 
attainment and unclassifiable areas to be affected by the Court's 
opinion. Moreover, the EPA does not anticipate the need to revise any 
PSD requirements promulgated in the 2008 rule in order to comply with 
the Court's decision. Accordingly, EPA's approval of Kansas' 
infrastructure SIP as to Elements (C), (D)(i)(II), and (J), with 
respect to the PSD requirements promulgated by the 2008 implementation 
rule does not conflict with the Court's opinion.
    The Court's decision with respect to the nonattainment NSR 
requirements promulgated by the 2008 implementation rule also does not 
affect EPA's action on the present infrastructure SIP submission. As 
described above, EPA interprets the Act to exclude nonattainment area 
requirements, including requirements associated with a nonattainment 
NSR program, from infrastructure SIP submissions due 3 years after 
adoption or revision of a NAAQS. Instead, these elements are typically 
referred to as nonattainment SIP or attainment plan elements, which 
states must submit by the dates statutorily prescribed under part D 
within subparts 2 through 5, extending as far as ten years following 
designations for some elements. Given these separate applicable SIP 
submission dates, EPA concludes that these specific requirements are 
outside the scope of the infrastructure SIPs.

V. What is EPA's evaluation of how the State addressed the relevant 
elements of sections 110(a)(1) and (2)?

    On July 18, 1997, EPA promulgated new PM2.5 primary and 
secondary NAAQS (62 FR 38652). On October 17, 2006, EPA made further 
revisions to the primary and secondary NAAQS for PM2.5 (71 
FR 61144). On January 8, 2008, EPA Region 7 received Kansas' 
particulate matter infrastructure SIP submission for the 1997 
PM2.5 standard. On April 12, 2010, EPA Region 7 received 
Kansas' particulate matter infrastructure SIP submittal for the 2006 
PM2.5 standard. These SIP submissions became complete as a 
matter of law on July 8, 2008, and October 12, 2010, respectively. EPA 
has reviewed both of the State's infrastructure SIP submissions and the 
relevant statutory and regulatory authorities and provisions referenced 
in those submittals or referenced in Kansas' SIP.
    (A) Emission limits and other control measures: Section 
110(a)(2)(A) requires SIPs to include enforceable emission limits and 
other control measures, means or techniques, schedules for compliance 
and other related matters as needed to implement, maintain and enforce 
each NAAQS.\5\
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    \5\ The specific nonattainment area plan requirements of section 
110(a)(2)(I), are subject to the timing requirements of section 172, 
not the timing requirement of section 110(a)(1). Thus, section 
110(a)(2)(A) does not require that states submit regulations or 
emissions limits specifically for attaining the 1997 or 2006 
PM2.5 NAAQS. Those SIP provisions are due as part of each 
state's attainment plan, and will be addressed separately from the 
requirements of section 110(a)(2)(A). In the context of an 
infrastructure SIP, EPA is not evaluating the existing SIP 
provisions for this purpose. Instead, EPA is only evaluating whether 
the state's SIP has basic structural provisions for the 
implementation of the NAAQS.
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    The state of Kansas' statutes and regulations authorize the Kansas 
Department of Health and Environment (KDHE) to regulate air quality and 
implement air quality control regulations. KDHE's statutory authority 
can be found in Chapter 65, Article 30 of the Kansas Statutes Annotated 
(KSA), otherwise known as the Kansas Air Quality Act. KSA Section 65-
3003 places the responsibility for air quality conservation and control 
of air pollution with the Secretary of Health and Environment 
(``Secretary''). The Secretary in turn administers the Kansas Air 
Quality Act through the Division of Environment within KDHE. Air 
pollution is defined in KSA Section 65-3002(c) as the presence in the 
outdoor atmosphere of one or more air contaminants in such quantities 
and

[[Page 22830]]

duration as is, or tends significantly to be, injurious to human health 
or welfare, animal or plant life, or property, or would unreasonably 
interfere with the enjoyment of life or property, or would contribute 
to the formation of regional haze.
    KSA Section 65-3005(a)(1) provides authority to the Secretary to 
adopt, amend and repeal rules and regulations implementing the Kansas 
Air Quality Act. It also gives the Secretary the authority to establish 
ambient air quality standards for the state of Kansas as a whole or for 
any part thereof. KSA Section 65-3005(a)(12). The Secretary has the 
authority to promulgate rules and regulations to ensure that Kansas is 
in compliance with the provisions of the Act, in furtherance of a 
policy to implement laws and regulations consistent with those of the 
Federal government. KSA Section 65-3005(b). The Secretary also has the 
authority to establish emission control requirements as appropriate to 
facilitate the accomplishment of the purposes of the Kansas Air Quality 
Act. KSA Section 65-3010(a).
    Based upon review of the state's infrastructure SIP submissions for 
the 1997 and 2006 PM2.5 NAAQS, and relevant statutory and 
regulatory authorities and provisions referenced in those submissions 
or referenced in Kansas' SIP, EPA believes that Kansas has statutory 
and regulatory authority to establish additional emissions limitations 
and other measures, as necessary to address attainment and maintenance 
of the PM2.5 standards. Therefore, EPA believes that the 
Kansas SIP adequately addresses the requirements of section 
110(a)(2)(A) for the 1997 and 2006 PM2.5 NAAQS \6\ and is 
proposing to approve the January 8, 2008, submission regarding the 1997 
PM2.5 infrastructure SIP requirements and the April 12, 
2010, submission regarding the 2006 PM2.5 infrastructure SIP 
requirements for this element.
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    \6\ For the reasons stated earlier, EPA is not addressing SSM 
and director's discretion provisions in this rulemaking.
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    (B) Ambient air quality monitoring/data system: Section 
110(a)(2)(B) requires SIPs to include provisions to provide for 
establishment and operation of ambient air quality monitors, collection 
and analysis of ambient air quality data, and making these data 
available to EPA upon request.
    To address this element, KSA Section 65-3007 provides the enabling 
authority necessary for Kansas to fulfill the requirements of section 
110(a)(2)(B). This provision gives the Secretary the authority to 
classify air contaminant sources which, in his or her judgment, may 
cause or contribute to air pollution. Furthermore, the Secretary has 
the authority to require such air contaminant sources to monitor 
emissions, operating parameters, ambient impacts of any source 
emissions, and any other parameters deemed necessary. The Secretary can 
also require these sources to keep records and make reports consistent 
with the Kansas Air Quality Act. KSA Section 65-3007(b).
    Kansas has an air quality monitoring network operated by KDHE and 
local air quality agencies that collects air quality data that are 
compiled, analyzed, and reported to EPA. KDHE's Web site contains up-
to-date information about air quality monitoring, including a 
description of the network and information about the monitoring of 
PM2.5. See, generally, http://www.kdheks.gov/bar/air-monitor/indexMon.html. KDHE also conducts five-year monitoring network 
assessments, including the PM2.5 monitoring network, as 
required by 40 CFR 58.10(d). On January 10, 2013, EPA approved Kansas' 
2012 ambient air monitoring network. This plan includes, among other 
things, the locations for the PM2.5 monitoring network in 
Kansas, which currently includes 13 monitors located at 11 sites. Data 
gathered by these monitors is submitted to EPA's Air Quality System, 
which in turn determines if the network site monitors are in compliance 
with the NAAQS.
    Within KDHE, the Bureau of Air and Radiation implements these 
requirements. Along with its other duties, the Monitoring and Planning 
Section collects air monitoring data, quality assures the results, and 
reports the data. The data are then used to develop the appropriate 
regulatory or outreach strategies to reduce air pollution.
    Based upon review of the state's infrastructure SIP submissions for 
the 1997 and 2006 PM2.5 NAAQS, and relevant statutory and 
regulatory authorities and provisions referenced in those submissions 
or referenced in Kansas' SIP, EPA believes that the Kansas SIP meets 
the requirements of section 110(a)(2)(B) for the 1997 and 2006 24-hour 
PM2.5 NAAQS and is proposing to approve the January 8, 2008, 
submission regarding the 1997 PM2.5 infrastructure SIP 
requirements and the April 12, 2010, submission regarding the 2006 
PM2.5 infrastructure SIP requirements for this element.
    (C) Program for enforcement of control measures (PSD, New Source 
Review for nonattainment areas, and construction and modification of 
all stationary sources): Section 110(a)(2)(C) requires states to 
include the following three elements in the SIP: (1) A program 
providing for enforcement of all SIP measures described in section 
110(a)(2)(A); (2) a program for the regulation of the modification and 
construction of stationary sources as necessary to protect the 
applicable NAAQS (i.e., state-wide permitting of minor sources); and 
(3) a permit program to meet the major source permitting requirements 
of the CAA (for areas designated as attainment or unclassifiable for 
the NAAQS in question).\7\
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    \7\ As discussed in further detail below, this infrastructure 
SIP rulemaking will not address the Kansas program for nonattainment 
area related provisions, since EPA considers evaluation of these 
provisions to be outside the scope of infrastructure SIP actions.
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    (1) Enforcement of SIP Measures. With respect to enforcement of 
requirements of the SIP, KSA Section 65-3005(a)(3) gives the Secretary 
the authority to issue orders, permits and approvals as may be 
necessary to effectuate the purposes of the Kansas Air Quality Act and 
enforce the Act by all appropriate administrative and judicial 
proceedings. Pursuant to KSA Section 65-3006, the Secretary also has 
the authority to enforce rules, regulations and standards to implement 
the Kansas Air Quality Act and to employ the professional, technical 
and other staff to effectuate the provisions of the Act. In addition, 
if the Secretary or the director of the Division of Environment finds 
that any person has violated any provision of any approval, permit or 
compliance plan or any provision of the Kansas Air Quality Act or any 
rule or regulation promulgated thereunder, he or she may issue an order 
directing the person to take such action as necessary to correct the 
violation. KSA Section 65-3011.
    KSA Section 65-3018 gives the Secretary or the director of the 
Division of Environment the authority to impose a monetary penalty 
against any person who, among other things, either violates any order 
or permit issued under the Kansas Air Quality Act, or violates any 
provision of the Act or rule or regulation promulgated thereunder. 
Section 65-3028 provides for criminal penalties for knowing violations.
    (2) Minor New Source Review. Section 110(a)(2)(C) also requires 
that the SIP include measures to regulate construction and modification 
of stationary sources to protect the NAAQS. With respect to smaller 
sources that meet the criteria listed in KAR 28-19-300(b) 
``Construction Permits and Approvals,'' Kansas has a SIP-approved

[[Page 22831]]

permitting program. Any person proposing to conduct a construction or 
modification at such a source must obtain approval from KDHE prior to 
commencing construction or modification. If KDHE determines that air 
contaminant emissions from a source will interfere with attainment or 
maintenance of the NAAQS, it cannot issue an approval to construct or 
modify that source (KAR 28-19-301(d) ``Construction Permits and 
Approvals; Application and Issuance'').
    In this action, EPA is proposing to approve Kansas' infrastructure 
SIP for the 1997 and 2006 PM2.5 standards with respect to 
the general requirement in section 110(a)(2)(C) to include a program in 
the SIP that regulates the modification and construction of any 
stationary source as necessary to assure that the NAAQS are achieved. 
In this action, EPA is not proposing to approve or disapprove the 
state's existing minor NSR program to the extent that it is 
inconsistent with EPA's regulations governing this program. EPA has 
maintained that the CAA does not require that new infrastructure SIP 
submissions correct any defects in existing EPA-approved provisions of 
minor NSR programs in order for EPA to approve the infrastructure SIP 
for element (C) (e.g., 76 FR 41076-41079). EPA believes that a number 
of states may have minor NSR provisions that are contrary to the 
existing EPA regulations for this program. EPA intends to work with 
states to reconcile state minor NSR programs with EPA's regulatory 
provisions for the program. The statutory requirements of section 
110(a)(2)(C) provide for considerable flexibility in designing minor 
NSR programs, and EPA believes it may be time to revisit the regulatory 
requirements for this program to give the states an appropriate level 
of flexibility to design a program that meets their particular air 
quality concerns, while assuring reasonable consistency across the 
country in protecting the NAAQS with respect to new and modified minor 
sources.
    (3) Prevention of Significant Deterioration (PSD) permit program. 
Kansas also has a program approved by EPA as meeting the requirements 
of Part C, relating to prevention of significant deterioration of air 
quality. In order to demonstrate that Kansas has met this sub-element, 
this PSD program must cover requirements for not just PM2.5, 
but for all other regulated NSR pollutants as well. To implement the 
PSD permitting component of section 110(a)(2)(C) for the 1997 and 2006 
PM2.5 NAAQS, states were required to submit the necessary 
SIP revisions to EPA by May 16, 2011, and July 20, 2012, pursuant to 
EPA's NSR PM2.5 Implementation Rule (2008 NSR Rule), (73 FR 
28321, May 16, 2008), and EPA's PM2.5 Increment--Significant 
Impact Levels (SILs)--Significant Monitoring Concentration (SMC) rule, 
(75 FR 64864, October 20, 2010). As described in section IV above, the 
January 4, 2013, court decision remanding the 2008 rule does not impact 
the EPA's action as to this element.
    The 2008 NSR Rule finalized several new requirements for SIPs to 
address sources that emit direct PM2.5 and other pollutants 
that contribute to secondary PM2.5 formation. One of these 
requirements is for NSR permits to address pollutants responsible for 
the secondary formation of PM2.5, otherwise known as 
precursors. In the 2008 NSR Rule, EPA identified precursors to 
PM2.5 for the PSD program to include sulfur dioxide 
(SO2) and nitrogen oxide (NOX) (unless the state 
demonstrates to the Administrator's satisfaction or EPA demonstrates 
that NOX emissions in an area are not a significant 
contributor to that area's ambient PM2.5 concentrations) 
(see 73 FR 28325). The 2008 NSR Rule also specifies that volatile 
organic compounds (VOCs) are not considered to be precursors to 
PM2.5 in the PSD program unless the state demonstrates to 
the Administrator's satisfaction or EPA demonstrates that emissions of 
VOCs in an area are significant contributors to that area's ambient 
PM2.5 concentrations. The specific references to 
SO2, NOX, and VOCs as they pertain to secondary 
PM2.5 formation are codified at 40 CFR 51.166(b)(49)(i)(b) 
and 40 CFR 52.21(b)(50)(i)(b). The deadline for states to submit SIP 
revisions to their PSD programs incorporating these new requirements 
was May 16, 2011 (73 FR 28341).
    As part of identifying pollutants that are precursors to 
PM2.5, the 2008 NSR Rule also revised the definition of 
``significant'' as it relates to a net emissions increase or the 
potential of a source to emit pollutants. Specifically, 40 CFR 
51.166(b)(23)(i) and 40 CFR 52.21(b)(23)(i) define ``significant'' for 
PM2.5 to mean the following emissions rates: 10 tons per 
year (tpy) of direct PM2.5; 40 tpy of SO2; and 40 
tpy of NOX (unless the state demonstrates to the 
Administrator's satisfaction or EPA demonstrates that NOX 
emissions in an area are not a significant contributor to that area's 
ambient PM2.5 concentrations).
    Another provision of the 2008 NSR Rule requires states to account 
for gases that could condense to form particulate matter, known as 
condensables, for applicability determinations and in establishing 
emission limits for PM2.5 and PM10 \8\ in NSR 
permits. EPA provided that states were required to account for 
PM2.5 and PM10 condensables beginning on or after 
January 1, 2011. This requirement is currently codified in 40 CFR 
51.166(b)(49)(i)(a) and 40 CFR 52.21(b)(50)(i)(a). Revisions to states' 
PSD programs incorporating the inclusion of condensables were required 
to be submitted to EPA by May 16, 2011 (73 FR at 28341).
---------------------------------------------------------------------------

    \8\ PM10 refers to particles with diameters between 
2.5 and 10 microns, oftentimes referred to as ``coarse'' particles.
---------------------------------------------------------------------------

    The definition of ``regulated NSR pollutant'' in the PSD provisions 
of the 2008 rule inadvertently required states to also account for the 
condensable PM fraction with respect to one indicator of PM referred to 
as ``particular matter emissions.'' The term ``particulate matter 
emissions'' includes PM2.5 and PM10 particles as 
well as larger particles, and is an indicator for PM that has long been 
used for measuring PM under various New Source Performance Standards 
(NSPS) (40 CFR part 60).\9\ A similar provision addressing condensables 
was added to the Nonattainment NSR SIP provisions of the 2008 NSR Rule 
but does not include a requirement to account for ``particulate matter 
(PM) emissions'' in all cases (40 CFR 51.165(a)(1)(xxxvii)(D)). On 
October 12, 2012, EPA finalized a rulemaking to amend the definition of 
``regulated NSR pollutant'' promulgated in the NSR PM2.5 
Rule regarding the PM condensable provision currently at 40 CFR 
51.166(b)(49)(i)(a), 52.21(b)(50)(i)(a), and the EPA's Emissions Offset 
Interpretative Ruling (see 77 FR 65107). The rulemaking removes the 
inadvertent requirement in the 2008 NSR Rule that the measurement of 
condensables be generally included as part of the measurement and 
regulation of ``particulate matter emissions.'' \10\
---------------------------------------------------------------------------

    \9\ In addition to the NSPS for PM, it is noted that states 
regulated ``particulate matter emissions'' for many years in their 
SIPs for PM, and the same indicator has been used as a surrogate for 
determining compliance with certain standards contained in 40 CFR 
part 63, regarding National Emission Standards for Hazardous Air 
Pollutants.
    \10\ The change finalized in that action does not mean that EPA 
has entirely exempted the inclusion of the condensable PM fraction 
as part of accounting for ``particulate matter emissions.'' It may 
be necessary for PSD sources to count the condensable PM fraction 
with regard to ``particulate matter emissions'' where either the 
applicable NSPS compliance test includes the condensable PM fraction 
or the applicable implementation plan requires the condensable PM 
fraction to be counted. See 77 FR 65112.

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[[Page 22832]]

    The 2010 PM2.5 Increment-Significant Impact Levels 
(SILS)--Significant Monitoring Concentration (SMC) Rule provided 
additional regulatory requirements under the PSD SIP program regarding 
the implementation of the PM2.5 NAAQS (see 75 FR 64864). As 
a result, the PM2.5 PSD Increment-SILs-SMC Rule required 
states to submit SIP revisions to adopt the required PSD increments by 
July 20, 2012. Specifically, the rule required a state's submitted PSD 
SIP revision to adopt and submit for EPA approval the PM2.5 
increments pursuant to section 166(a) of the CAA to prevent significant 
deterioration of air quality in areas meeting the NAAQS.
    That rule also permitted states, at their discretion, to choose to 
adopt and submit for EPA approval into the SIP SILs, used as a 
screening tool (by a major source subject to PSD), to evaluate the 
impact a proposed major source or modification may have on the NAAQS or 
PSD increment; and a SMC (also a screening tool), used by a major 
source subject to PSD to determine the subsequent level of data 
gathering required for a PSD permit application for emissions of 
PM2.5. More detail on the PM2.5 PSD Increment-
SILs-SMC Rule can be found at 75 FR 64864. In regards to the SILs and 
SMC provisions of the 2010 PM2.5 rule, on January 22, 2013, 
the U.S. Court of Appeals for the District of Columbia, in Sierra Club 
v. EPA, No. 10-1413 (filed Dec. 17, 2010), issued a judgment that, 
inter alia, vacated and remanded the provisions concerning 
implementation of the PM2.5 SILs and vacated the provisions 
adding the PM2.5 SMC that were promulgated as part of the 
2010 PM2.5 PSD Rule.
    Accordingly, the only remaining requirements from the 2010 rule are 
the PM2.5 increment and associated provisions discussed 
below. Under section 165(a)(3) of the CAA, a PSD permit applicant must 
demonstrate that emissions from the proposed construction and operation 
of a facility ``will not cause, or contribute to, air pollution in 
excess of any maximum allowable increase or allowable concentration for 
any pollutant.'' In other words, when a source applies for a PSD SIP 
permit to emit a regulated pollutant in an attainment or unclassifiable 
area, the permitting authority implementing the PSD SIP must determine 
if emissions of the regulated pollutant from the source will cause 
significant deterioration in air quality. Significant deterioration 
occurs when the amount of the new pollution exceeds the applicable PSD 
increment, which is the ``maximum allowable increase'' of an air 
pollutant allowed to occur above the applicable baseline concentration 
\11\ for that pollutant. PSD increments prevent air quality in 
attainment and unclassifiable areas from deteriorating up to or beyond 
the level set by the NAAQS. Therefore, an increment is the mechanism 
used to estimate ``significant deterioration'' of air quality for a 
pollutant in an area.
---------------------------------------------------------------------------

    \11\ Section 169(4) of the CAA provides that the baseline 
concentration of a pollutant for a particular baseline area is 
generally the same air quality at the time of the first application 
for a PSD permit in the area.
---------------------------------------------------------------------------

    For PSD baseline purposes, a baseline area for a particular 
pollutant emitted from a source includes the attainment or 
unclassifiable/attainment area in which the source is located, as well 
as any other attainment or unclassifiable/attainment area in which the 
source's emissions of that pollutant are projected (by air quality 
modeling) to result in an ambient pollutant increase of at least 1 ug/
m\3\ (annual average) (40 CFR 51.166(b)(15)(i) and (ii)). Under EPA's 
existing regulations, the establishment of a baseline area for any PSD 
increment results from the submission of the first complete PSD permit 
application after a trigger date (which for PM2.5 is defined 
as October 20, 2011, by regulation) and is based on the location of the 
proposed source and its emissions impact on the area. Once the baseline 
area is established, subsequent PSD sources locating in that area must 
consider that a portion of the available increment may have already 
been consumed by previous emissions increases. In general, the 
submittal date of the first complete PSD permit application in a 
particular area is the operative ``baseline date.'' \12\ On or before 
the date of the first complete PSD application, emissions generally are 
considered to be part of the baseline concentration, except for certain 
emissions from major stationary sources. Most emissions increases that 
occur after the baseline date will be counted toward the amount of 
increment consumed. Similarly, emissions decreases after the baseline 
date restore or expand the amount of increment that is available (see 
75 FR 64864). As described in the PM2.5 PSD Increment-SILs-
SMC Rule, pursuant to the authority under section 166(a) of the CAA, 
EPA promulgated numerical increments for PM2.5 as a new 
pollutant \13\ for which the NAAQS were established after August 7, 
1977,\14\ and derived 24-hour and annual PM2.5 increments 
for the three area classifications (Class I, II and III) using the 
``contingent safe harbor'' approach (75 FR at 64869 and table at 40 CFR 
51.166(c)(1)).
---------------------------------------------------------------------------

    \12\ Baseline dates are pollutant specific. That is, a complete 
PSD application establishes the baseline date only for those 
regulated NSR pollutants that are projected to be emitted in 
significant amounts (as defined in the regulations) by the 
applicant's new source or modification. Thus, an area may have 
different baseline dates for different pollutants.
    \13\ EPA generally characterized the PM2.5 NAAQS as a 
NAAQS for a new indicator of PM. EPA did not replace the 
PM10 NAAQS with the NAAQS for PM2.5 when the 
PM2.5 NAAQS were promulgated in 1997. Rather, EPA 
retained the annual and 24-hour NAAQS for PM10 as if 
PM2.5 was a new pollutant even though EPA had already 
developed air quality criteria for PM generally (75 FR 64864).
    \14\ EPA interprets 166(a) to authorize EPA to promulgate 
pollutant-specific PSD regulations meeting the requirements of 
section 166(c) and 166(d) for any pollutant for which EPA 
promulgates a NAAQS after 1977.
---------------------------------------------------------------------------

    In addition to PSD increments for the 2006 PM2.5 NAAQS, 
the PM2.5 PSD Increment-SILs-SMC Rule amended the definition 
at 40 CFR 51.166 and 40 CFR 52.21 for ``major source baseline date'' 
and ``minor source baseline date'' to establish the PM2.5 
NAAQS specific dates (including trigger dates) associated with the 
implementation of PM2.5 PSD increments. See the PSD 
Increment-SILs-SMC rule for a more detailed discussion on the 
amendments to these definitions (75 FR 64864). In accordance with 
section 166(b) of the CAA, EPA required the states to submit revised 
implementation plans adopting the PM2.5 PSD increments to 
EPA for approval within 21 months from promulgation of the final rule 
(i.e., by July 20, 2012). Each state was responsible for determining 
how increment consumption and the setting of the minor source baseline 
date for PM2.5 would occur under its own PSD program. 
Regardless of when a state begins to require PM2.5 increment 
analysis and how it chooses to set the PM2.5 minor source 
baseline date, the emissions from sources subject to PSD for 
PM2.5 for which construction commenced after October 20, 
2010, (major source baseline date) consume the PM2.5 
increment and therefore should be included in the increment analyses 
occurring after the minor source baseline date is established for an 
area under the state's revised PSD SIP program.
    To meet the requirements of element (C), in addition to the 
PM2.5 PSD elements that must be incorporated in to the SIP, 
each state's PSD program must meet applicable requirements for all 
regulated pollutants in PSD permits. For example, if a state lacks 
provisions needed to address NOX as a precursor to ozone, 
the provisions of section 110(a)(2)(C) requiring a suitable PSD 
permitting program for PM2.5 will not be considered to be 
met.
    Relating to ozone, the EPA's ``Final Rule to Implement the 8-Hour 
Ozone

[[Page 22833]]

National Ambient Air Quality Standard--Phase 2; Final Rule to Implement 
Certain Aspects of the 1990 Amendments Relating to New Source Review 
and Prevention of Significant Deterioration as They Apply in Carbon 
Monoxide, Particulate Matter, and Ozone NAAQS; Final Rule for 
Reformulated Gasoline'' (Phase 2 Rule), was published on November 8, 
2005 (70 FR 71612). Among other requirements, the Phase 2 Rule 
obligated states to revise their PSD programs to explicitly identify 
NOX as a precursor to ozone (70 FR at 71679, and at 71699-
71700). This requirement is currently codified in 40 CFR 
51.166(b)(49)(i)(b).
    EPA notes that the Kansas SIP provides that ozone precursors 
(volatile organic compounds (VOCs) and nitrogen oxides) are regulated. 
The regulations at 40 CFR 52.21(b)(50) specifically state that nitrogen 
oxides and VOCs are considered precursors for ozone in all attainment 
and unclassifiable areas. For example, a stationary source that is 
major for VOCs is also major for ozone for purposes of permitting in 
nonattainment areas (KAR 28-19-16a(r) ``New Source Permit Requirements 
for Designated Nonattainment Areas''). In addition, a source that 
undergoes a significant net emissions increase for VOCs is also 
considered to have undergone a significant net emissions increase for 
ozone for the purposes of the Kansas air quality regulations (KAR 28-
19-200(eee)(6) ``General Provisions; Definitions''). The ozone 
provisions were previously approved by EPA into the Kansas SIP on 
February 22, 2011 (76 FR 9658).
    As a part of today's rulemaking, EPA is proposing to approve 
amendments to Kansas' PSD regulations for PM2.5 into the 
SIP. See section VI for EPA's analysis of how Kansas' March 1, 2013, 
submission meets the PSD requirements.
    Regarding greenhouse gases (GHG), on June 3, 2010, EPA issued a 
final rule establishing a ``common sense'' approach to addressing GHG 
emissions from stationary sources under the CAA permitting programs. 
The ``Prevention of Significant Deterioration and Title V Greenhouse 
Gas Tailoring Rule,'' or ``Tailoring Rule,'' set thresholds for GHG 
emissions that define when permits under the NSR PSD and title V 
operating permit programs are required for new and existing industrial 
facilities (see 75 FR 31514). Without the new threshold provided by the 
Tailoring Rule, sources with GHG emissions above the statutory 
thresholds (of 100 or 250 tons per year) would be subject to PSD, which 
could have potentially resulted in apartment complexes, strip malls, 
small farms, restaurants, etc. triggering GHG PSD requirements.
    With respect to the applicability of the Kansas PSD program to GHG 
emissions, on February 22, 2011, EPA approved in to the Kansas SIP an 
amendment that would regulate GHGs under Kansas' PSD program (76 FR 
9658). Thus, we have previously determined that the Kansas SIP meets 
the PSD requirements with respect to GHGs.
    Based upon review of the State's infrastructure SIP submissions for 
the 1997 and 2006 PM2.5 NAAQS and the March 1, 2013, 
submission regarding PSD requirements, and relevant statutory and 
regulatory authorities and provisions referenced in those submissions 
or referenced in Kansas' SIP, with respect to the requirements of 
section 110(a)(2)(C) for the 1997 and 2006 24-hour PM2.5 
NAAQS, EPA is proposing to approve the January 8, 2008, submission 
regarding the 1997 PM2.5 infrastructure SIP requirements, 
the April 12, 2010, submission regarding the 2006 PM2.5 
infrastructure SIP requirements, and the March 1, 2013, submission 
regarding the PSD requirements. EPA's analysis of the March 1, 2013, 
submittal is provided in section VI below.
    (D) Interstate and international transport:
    Section 110(a)(2)(D)(i)(I) requires SIPs to include adequate 
provisions prohibiting any source or other type of emissions activity 
in one state from contributing significantly to nonattainment, or 
interfering with maintenance, of any NAAQS in another state. 
Furthermore, section 110(a)(2)(D)(i)(II) requires SIPs to include 
adequate provisions prohibiting any source or other type of emissions 
activity in one state from interfering with measures required of any 
other state to prevent significant deterioration of air quality or to 
protect visibility. Section 110(a)(2)(D)(i) includes four requirements 
referred to as prongs 1 through 4. Prongs 1 and 2 are provided at 
section 110(a)(2)(D)(i)(I); Prongs 3 and 4 are provided at section 
110(a)(2)(D)(i)(II).
    In this notice, we are not proposing to take any actions related to 
the interstate transport requirements of section 110(a)(2)(D)(i)(I)--
prongs 1 and 2. At this time, there is no SIP submission from Kansas 
relating to 110(a)(2)(D)(i)(I) for the 1997 or 2006 PM2.5 
NAAQS pending before the Agency. EPA previously approved the provisions 
of the Kansas SIP submission addressing the requirements of section 
110(a)(2)(D)(i)(I), with respect to the 1997 PM2.5 
standards, into the Kansas SIP on May 8, 2007 (72 FR 10608). EPA also 
disapproved the portion of the Kansas SIP submission intended to 
address section 110(a)(2)(D)(i)(I) with respect to the 2006 
PM2.5 standards (76 FR 43143, July 20, 2011).
    With respect to the PSD requirements of section 
110(a)(2)(D)(i)(II)--prong 3, EPA notes that Kansas' satisfaction of 
the applicable infrastructure SIP PSD requirements for the 1997 and 
2006 PM2.5 NAAQS has been detailed in the section addressing 
section 110(a)(2)(C). EPA also notes that the proposed action in that 
section related to PSD is consistent with the proposed approval related 
to PSD for section 110(a)(2)(D)(i)(II). Therefore, EPA is proposing to 
approve the PSD requirements of section 110(a)(2)(D)(i)(II)--prong 3.
    With regard to the applicable requirements for visibility 
protection of section 110(a)(2)(D)(i)(II)--prong 4, states are subject 
to visibility and regional haze program requirements under part C of 
the CAA (which includes sections 169A and 169B). The 2009 Memo \15\ 
states that these requirements can be satisfied by an approved SIP 
addressing reasonably attributable visibility impairment, if required, 
and an approved SIP addressing regional haze.
---------------------------------------------------------------------------

    \15\ William T. Harnett, Director, Air Quality Policy Division, 
Office of Air Quality Planning and Standards ``Guidance on SIP 
Elements Required Under Sections 110(a(1) and (2) for the 2006 24-
Hour Fine Particle (PM2.5) National Ambient Air Quality 
Standards (NAAQS).'' Memorandum to EPA Regional Air Division 
Directors, Regions I-X, September 25, 2009.
---------------------------------------------------------------------------

    EPA's final approval of Kansas' regional haze plan ``Approval and 
Promulgation of Implementation Plans; State of Kansas: Regional Haze'' 
was published on December 27, 2011 (76 FR 80754). In this final 
approval, EPA determined that the Kansas SIP met requirements of the 
CAA, for states to prevent any future and existing anthropogenic 
impairment of visibility in Class I areas caused by emissions of air 
pollutants located over a wide geographic area. Therefore, EPA proposes 
that Kansas has met the infrastructure SIP requirements of section 
110(a)(2)(D)(i)(II) related to visibility protection for the 1997 and 
2006 PM2.5 NAAQS.
    Section 110(a)(2)(D)(ii) also requires that the SIP insure 
compliance with the applicable requirements of sections 126 and 115 of 
the CAA, relating to interstate and international pollution abatement, 
respectively.
    Section 126(a) of the Act requires new or modified sources to 
notify

[[Page 22834]]

neighboring states of potential impacts from sources within the state. 
The Kansas regulations address abatement of the effects of interstate 
pollution. For example, KAR 28-19-350(k)(2) ``Prevention of Significant 
Deterioration (PSD) of Air Quality'' requires KDHE, prior to issuing 
any construction permit for a proposed new major source or major 
modification, to notify EPA, as well as: any state or local air 
pollution control agency having jurisdiction in the air quality control 
region in which the new or modified installation will be located; the 
chief executives of the city and county where the source will be 
located; any comprehensive regional land use planning agency having 
jurisdiction where the source will be located; and any state, Federal 
land manager, or Indian governing body whose lands will be affected by 
emissions from the new source or modification.\16\ See also KAR 28-19-
204 ``General Provisions; Permit Issuance and Modification; Public 
Participation'' for additional public participation requirements. In 
addition, no Kansas source or sources have been identified by EPA as 
having any interstate impacts under section 126 in any pending actions 
relating to any air pollutant.
---------------------------------------------------------------------------

    \16\ KAR 28-19-16k(b) provides similar requirements for 
construction permits issued in nonattainment areas.
---------------------------------------------------------------------------

    Section 115 of the CAA authorizes EPA to require a state to revise 
its SIP under certain conditions to alleviate international transport 
into another country. There are no final findings under section 115 of 
the CAA against Kansas with respect to any air pollutant. Thus, the 
State's SIP does not need to include any provisions to meet the 
requirements of section 115.
    Based upon review of the State's infrastructure SIP submissions for 
the 1997 and 2006 PM2.5 NAAQS, and relevant statutory and 
regulatory authorities and provisions referenced in those submissions 
or referenced in Kansas' SIP, EPA believes that Kansas has the adequate 
infrastructure needed to address section 110(a)(2)(D)(i)(II)--Prongs 3 
and 4 and 110(a)(2)(D)(ii) for the 1997 and 2006 PM2.5 
NAAQS. EPA is proposing to approve the January 8, 2008, submission 
regarding the 1997 PM2.5 infrastructure SIP requirements and 
the April 12, 2010, submission regarding the 2006 PM2.5 
infrastructure SIP requirements for this element.
    (E) Adequate authority, resources, implementation, and oversight: 
Section 110(a)(2)(E) requires that SIPs provide for the following: (1) 
Necessary assurances that the state (and other entities within the 
state responsible for implementing the SIP) will have adequate 
personnel, funding, and authority under State or local law to implement 
the SIP, and that there are no legal impediments to such 
implementation; (2) requirements that the state comply with the 
requirements relating to state boards, pursuant to section 128 of the 
CAA; and (3) necessary assurances that the state has responsibility for 
ensuring adequate implementation of any plan provision for which it 
relies on local governments or other entities to carry out that portion 
of the plan.
    (1) Section 110(a)(2)(E)(i) requires states to establish that they 
have adequate personnel, funding, and authority. With respect to 
adequate authority, we have previously discussed Kansas' statutory and 
regulatory authority to implement the 1997 and 2006 PM2.5 
NAAQS, primarily in the discussion of section 110(a)(2)(A) above. 
Neither Kansas nor EPA have identified any legal impediments in the 
State's SIP to implementation of these NAAQS.
    With respect to adequate resources, KDHE asserts that it has 
adequate personnel to implement the SIP. The Kansas statutes provide 
the Secretary the authority to employ technical, professional and other 
staff to effectuate the purposes of the Kansas Air Quality Act from 
funds appropriated and available for these purposes. See KSA Section 
65-3006(b). Within KDHE, the Bureau of Air and Radiation implements the 
Kansas Air Quality Act. This Bureau is further divided into the Air 
Compliance & Enforcement Section, Air Permit Section; the Monitoring & 
Planning Section; and the Radiation and Asbestos Control Section.
    With respect to funding, the Kansas Legislature annually approves 
funding and personnel resources for KDHE to implement the air program. 
The annual budget process provides a periodic update that enables KDHE 
and the local agencies to adjust funding and personnel needs. In 
addition, the Kansas statutes grant the Secretary authority to 
establish various fees for sources, to cover any and all parts of 
administering the provisions of the Kansas Air Quality Act. For 
example, KSA Section 65-3008(f) grants the Secretary authority to fix, 
charge, and collect fees for construction approvals and permits (and 
the renewals thereof). KSA Section 65-3024 grants the Secretary the 
authority to establish annual emissions fees. These emission fees, 
along with any moneys recovered by the state under the provisions of 
the Kansas Air Quality Act, are deposited into an air quality fee fund 
in the state treasury. Moneys in the air quality fee fund can only be 
used for the purpose of administering the Kansas Air Quality Act.
    Kansas also uses funds in the non-Title V subaccounts, along with 
General Revenue funds and EPA grants under, for example, sections 103 
and 105 of the Act, to fund the programs. EPA conducts periodic program 
reviews to ensure that the state has adequate resources and funding to, 
among other things, implement the SIP.
    (2) Conflict of interest provisions--Section 128
    Section 110(a)(2)(E)(ii) also requires that each state SIP meet the 
requirements of section 128, relating to representation on state boards 
and conflicts of interest by members of such boards. Section 128(a)(1) 
requires that any board or body which approves permits or enforcement 
orders under the CAA must have at least a majority of members who 
represent the public interest and do not derive any ``significant 
portion'' of their income from persons subject to permits and 
enforcement orders under the CAA. Section 128(a)(2) requires that 
members of such a board or body or the head of an agency with similar 
powers, adequately disclose any potential conflicts of interest. In 
1978, EPA issued a guidance memorandum recommending ways that states 
could meet the requirements of section 128, including suggested 
interpretations of certain terms in section 128.\17\ EPA has not issued 
further guidance or regulations of general applicability on the subject 
since that time. However, EPA has recently proposed certain 
interpretations of section 128 as part of its actions on other 
infrastructure SIPs consistent with the statutory requirements (see, 
e.g., (77 FR 44555, July 30, 2012) and (77 FR 66398, November 5, 
2012)). We are now proposing these same interpretations in relation to 
the Kansas SIP.
---------------------------------------------------------------------------

    \17\ See Memorandum from David O. Bickart to Regional Air 
Directors, ``Guidance to States for Meeting Conflict of Interest 
Requirements of Section 128,'' Suggested Definitions, March 2, 1978.
---------------------------------------------------------------------------

    On March 19, 2013, Kansas submitted to EPA specific provisions of 
the Kansas statutes that address section 128, for inclusion into the 
SIP. In today's action, we are also proposing to approve Kansas' March 
19, 2013, submission related to sections 110(a)(2)(E)(ii) and 128 of 
the CAA. Due to the fact that this proposed rule revision is not yet 
state-effective, Kansas requested that EPA ``parallel process'' the 
revision. Under this procedure, the EPA Regional Office works closely 
with the state while developing new or revised regulations. Generally, 
the state submits a copy of

[[Page 22835]]

the proposed regulation or other revisions to EPA before conducting its 
public hearing. EPA reviews this proposed state action and prepares a 
notice of proposed rulemaking. EPA publishes this notice of proposed 
rulemaking in the Federal Register and solicits public comment in 
approximately the same time frame during which the state is holding its 
public hearing. The state and EPA thus provide for public comment 
periods on both the state and the Federal actions in parallel. After 
Kansas submits the formal state-effective rule and SIP revision request 
(including a response to all public comments raised during the state's 
public participation process), EPA will prepare a final rulemaking 
notice for the SIP revision. If changes are made to the state's 
proposed rule after EPA's notice of proposed rulemaking, such changes 
must be acknowledged in EPA's final rulemaking action. If the changes 
are significant, then EPA may be obliged to re-propose the action. In 
addition, if the changes render the SIP revision not approvable, EPA's 
re-proposal of the action would be a disapproval of the revision. EPA 
and Kansas have worked to assure that the state's SIP correctly 
addresses these requirements.
    EPA's analysis consisted of review of Kansas' March 19, 2013, SIP 
submission and EPA's additional review of Kansas' statutes and 
authorities. The first step in the analysis consists of identifying 
boards, bodies and persons responsible for approving permits and 
enforcement orders and determining the applicability of the section 128 
requirements to these entities. The Kansas Air Quality Act does not 
establish any boards or bodies that are responsible for approving 
permits or enforcement orders; rather, that authorities lies 
exclusively with the Secretary (see KSA Section 65-3005(a)(3)). 
Therefore, EPA believes the requirements of section 128(a)(1) do not 
apply to Kansas.
    To satisfy section 128(a)(2) of the CAA, Kansas submitted to EPA 
KSA Section 46-247(c) for inclusion into the SIP on March 19, 2013. 
This provision requires state officers (as defined at KSA Section 46-
221), employees and members of boards, councils and commissions under 
the jurisdiction of the head of any state agency to file written 
statements of substantial interests (as that term is defined at KSA 
Section 46-229). Thus, Kansas law requires disclosure of any potential 
conflicts of interest by the head of an agency responsible for issuing 
permits and enforcement orders (i.e., KDHE).
    EPA believes that the above identified relevant sections of the 
Kansas statutes directly address the provisions related to section 
128(a)(2) of the CAA. We propose to approve the following provisions 
into the Kansas SIP as they strengthen the SIP with respect to the 
conflict of interest requirements of CAA section 128:
     KSA Section 46-221
     KSA Section 46-229
     KSA Section 46-247(c)
    (3) With respect to assurances that the state has responsibility to 
implement the SIP adequately when it authorizes local or other agencies 
to carry out portions of the plan, KSA Section 65-3005(a)(8) grants the 
Secretary authority to encourage local units of government to handle 
air pollution problems within their own jurisdictions and to provide 
technical and consultative assistance therefore. The Secretary may also 
enter into agreements with local units of government to administer all 
or part of the provisions of the Kansas Air Quality Act in the units' 
respective jurisdictions. In fact, KSA Section 65-3016 allows for 
cities and/or counties (or combinations thereof) to form local air 
quality conservation authorities. These authorities will then have the 
authority to enforce air quality rules and regulations adopted by the 
Secretary and adopt any additional rules, regulations and standards as 
needed to maintain satisfactory air quality within their jurisdictions.
    At the same time, the Kansas statutes also retain authority in the 
Secretary to carry out the provisions of the state air pollution 
control law. KSA Section 65-3003 specifically places responsibility for 
air quality conservation and control of air pollution with the 
Secretary. The Secretary shall then administer the Kansas Air Quality 
Act through the Division of Environment. As an example of this 
retention of authority, KSA Section 65-3016 only allows for the 
formation of local air quality conservation authorities with the 
approval of the Secretary. In addition, although these authorities can 
adopt additional air quality rules, regulations and standards, they may 
only do so if those rules, regulations and standards are in compliance 
with those set by the Secretary for that area. Currently, KDHE oversees 
the following local agencies that implement that Kansas Air Quality 
Act: The City of Wichita Office of Environmental Health, Johnson County 
Department of Health & Environment, Shawnee County Health Agency, and 
Unified Government of Wyandotte County--Kansas City, Kansas Public 
Health Department.
    Based upon review of the State's infrastructure SIP submissions for 
the 1997 and 2006 PM2.5 NAAQS and the March 19, 2013, SIP 
submission, and relevant statutory and regulatory authorities and 
provisions referenced in those submissions or referenced in Kansas' 
SIP, EPA believes that Kansas has the adequate infrastructure needed to 
address section 110(a)(2)(E) for the 1997 and 2006 PM2.5 
NAAQS and is proposing to approve the January 8, 2008, submission 
regarding the 1997 PM2.5 infrastructure SIP requirements and 
the April 12, 2010, submission regarding the 2006 PM2.5 
infrastructure SIP requirements, and the March 19, 2013, submission 
relating to section 128 requirements.
    (F) Stationary source monitoring system: Section 110(a)(2)(F) 
requires states to establish a system to monitor emissions from 
stationary sources and to submit periodic emission reports. Each SIP 
shall require the installation, maintenance, and replacement of 
equipment, and the implementation of other necessary steps, by owners 
or operators of stationary sources, to monitor emissions from such 
sources. The SIP shall also require periodic reports on the nature and 
amounts of emissions and emissions-related data from such sources, and 
requires that the state correlate the source reports with emission 
limitations or standards established under the CAA. These reports must 
be made available for public inspection at reasonable times.
    To address this element, KSA Section 65-3007 gives the Secretary 
the authority to classify air contaminant sources which, in his or her 
judgment, may cause or contribute to air pollution. The Secretary shall 
require air contaminant emission sources to monitor emissions, 
operating parameters, ambient impact of any source emissions, and any 
other parameters deemed necessary. Furthermore, the Secretary may 
require these emissions sources to keep records and make reports 
consistent with the purposes of the Kansas Air Quality Act.
    In addition, KAR 28-19-12(A) ``Measurement of Emissions'' states 
that KDHE may require any person responsible for the operation of an 
emissions source to make or have tests made to determine the rate of 
contaminant emissions from the source whenever it has reason to believe 
that existing emissions exceed limitations specified in the Kansas air 
quality regulations. At the same time, KDHE may also conduct its own 
tests of emissions from any source. KAR 28-19-12(B). The Kansas 
regulations also require that all Class I operating permits include 
requirements for monitoring of emissions (KAR 28-19-512(a)(9) ``Class I 
Operating Permits; Permit Content'').

[[Page 22836]]

    Kansas makes all monitoring reports (as well as compliance plans 
and compliance certifications) submitted as part of a construction 
permit or Class I or Class II permit application publicly available. 
See KSA Section 65-3015(a); KAR 28-19-204(c)(6) ``General Provisions; 
Permit Issuance and Modification; Public Participation.'' KDHE uses 
this information to track progress towards maintaining the NAAQS, 
developing control and maintenance strategies, identifying sources and 
general emission levels, and determining compliance with emission 
regulations and additional EPA requirements. Although the Kansas 
statutes allow a person to request that records or information reported 
to KDHE be regarded and treated as confidential on the grounds that it 
constitutes trade secrets, emission data is specifically excluded from 
this protection. See KSA Section 65-3015(b).
    Based upon review of the State's infrastructure SIP submissions for 
the 1997 and 2006 PM2.5 NAAQS, and relevant statutory and 
regulatory authorities and provisions referenced in those submissions 
or referenced in Kansas' SIP, EPA believes that Kansas has the adequate 
infrastructure needed to address section 110(a)(2)(F) for the 1997 and 
2006 PM2.5 NAAQS and is proposing to approve the January 8, 
2008, submission regarding the 1997 PM2.5 infrastructure SIP 
requirements and the April 12, 2010, submission regarding the 2006 
PM2.5 infrastructure SIP requirements for this element.
    (G) Emergency authority: Section 110(a)(2)(G) requires SIPs to 
provide for authority to address activities causing imminent and 
substantial endangerment to public health or welfare or the environment 
(comparable to the authorities provided in Section 303 of the CAA), and 
to include contingency plans to implement such authorities as 
necessary.
    KSA Section 65-3012(a) states that whenever the Secretary receives 
evidence that emissions from an air pollution source or combination of 
sources presents an imminent and substantial endangerment to public 
health or welfare or to the environment, he or she may issue a 
temporary order directing the owner or operator, or both, to take such 
steps as necessary to prevent the act or eliminate the practice. Upon 
issuance of this temporary order, the Secretary may then commence an 
action in the district court to enjoin these acts or practices.
    KAR 28-19-56 ``Episode Criteria'' allows the Secretary to proclaim 
an air pollution alert, air pollution warning, or air pollution 
emergency whenever he or she determines that the accumulation of air 
contaminants at any sampling location has attained levels which could, 
if such levels are sustained or exceeded, threaten the public health. 
KAR 28-19-57 ``Emission Reduction Requirements'' imposes restrictions 
on emission sources in the event one of these three air pollution 
episode statuses is declared.
    With respect to the contingency plan requirements of section 
110(a)(2)(G), EPA has issued guidance making recommendations for how 
states may elect to approach this issue. In that guidance, EPA 
recommended that, where a state can demonstrate that PM2.5 
levels have remained below 140.4 micrograms per cubic meter, the state 
is not required to develop a contingency plan to satisfy element (G). 
EPA believes that this is a reasonable interpretation of the statute 
and addresses the PM2.5 NAAQS in a way analogous to other 
NAAQS pollutants. PM2.5 monitoring data from monitors across 
the state have shown that 24-hour PM2.5 values have never 
exceeded 140.4 micrograms per cubic meter in Kansas. Therefore, Kansas 
is not required to develop a contingency plan for PM2.5 at 
this time. That said, the Kansas regulations provide that any person 
responsible for the operation of a source of air contamination adjudged 
to be of major concern with respect to the possible implementation of 
air pollution emergency episode control procedures either because of 
the nature or the quantity of its emissions must, at the request of 
KDHE, prepare an emergency episode plan to be implemented in the event 
that such an episode is declared. See KAR 28-19-58 ``Emergency Episode 
Plans''.
    Based upon review of the State's infrastructure SIP submissions for 
the 1997 and 2006 PM2.5 NAAQS, and relevant statutory and 
regulatory authorities and provisions referenced in those submissions 
or referenced in Kansas' SIP, EPA believes that Kansas has the adequate 
infrastructure needed to address section 110(a)(2)(G) for the 1997 and 
2006 PM2.5 NAAQS and is proposing to approve the January 8, 
2008, submission regarding the 1997 PM2.5 infrastructure SIP 
requirements and the April 12, 2010, submission regarding the 2006 
PM2.5 infrastructure SIP requirements for this element.
    (H) Future SIP revisions: Section 110(a)(2)(H) requires states to 
have the authority to revise their SIPs in response to changes in the 
NAAQS, availability of improved methods for attaining the NAAQS, or in 
response to an EPA finding that the SIP is substantially inadequate to 
attain the NAAQS.
    KSA Section 65-3005(b) specifically states that it is the policy of 
the state of Kansas to regulate the air quality of the state and 
implement laws and regulations that are applied equally and uniformly 
throughout the state and consistent with that of the Federal 
government. Therefore, the Secretary has the authority to promulgate 
rules and regulations to ensure that Kansas is in compliance with the 
provisions of the Federal CAA. KSA 65-3005(b)(1).
    As discussed previously, KSA Section 65-3005(a)(1) provides 
authority to the Secretary to adopt, amend and repeal rules and 
regulations implementing and consistent with the Kansas Air Quality 
Act. The Secretary also has the authority to establish ambient air 
quality standards for the state of Kansas or any part thereof. KSA 
Section 65-3005(a)(12). Therefore, as a whole, the Secretary has the 
authority to revise rules as necessary to respond to any necessary 
changes in the NAAQS.
    Based upon review of the State's infrastructure SIP submissions for 
the 1997 and 2006 PM2.5 NAAQS, and relevant statutory and 
regulatory authorities and provisions referenced in those submissions 
or referenced in Kansas' SIP, EPA believes that Kansas has adequate 
infrastructure needed to address section 110(a)(2)(H) for the 1997 and 
2006 PM2.5 NAAQS and is proposing to approve the January 8, 
2008, submission regarding the 1997 PM2.5 infrastructure SIP 
requirements and the April 12, 2010, submission regarding the 2006 
PM2.5 infrastructure SIP requirements for this element.
    (I) Nonattainment areas: Section 110(a)(2)(I) requires that in the 
case of a plan or plan revision for areas designated as nonattainment 
areas, states must meet applicable requirements of Part D of the CAA, 
relating to SIP requirements for designated nonattainment areas.
    As noted earlier, EPA does not expect infrastructure SIP 
submissions to address subsection (I). The specific SIP submissions for 
designated nonattainment areas, as required under CAA title I, part D, 
are subject to a different submission schedule than those for section 
110 infrastructure elements. Instead, EPA will take action on part D 
attainment plan SIP submissions through a separate rulemaking governed 
by the requirements for nonattainment areas, as described in part D.
    (J) Consultation with government officials, public notification, 
PSD and visibility protection: Section 110(a)(2)(J) requires SIPs to 
meet the applicable requirements of the following CAA provisions: (1) 
Section 121, relating to

[[Page 22837]]

interagency consultation regarding certain CAA requirements; (2) 
section 127, relating to public notification of NAAQS exceedances and 
related issues; and (3) Part C of the CAA, relating to prevention of 
significant deterioration of air quality and visibility protection.
    (1) With respect to interagency consultation, the SIP should 
provide a process for consultation with general-purpose local 
governments, designated organizations of elected officials of local 
governments, and any Federal Land Manager having authority over Federal 
land to which the SIP applies. KSA Section 65-3005(a)(14) grants the 
Secretary the authority to advise, consult and cooperate with other 
agencies of the state, local governments, other states, interstate and 
interlocal agencies, and the Federal government. Furthermore, as noted 
earlier in the discussion on section 110(a)(2)(D), Kansas' regulations 
require that whenever it receives a construction permit application for 
a new source or a modification, KDHE must notify state and local air 
pollution control agencies, as well as regional land use planning 
agencies and any state, Federal land manager, or Indian governing body 
whose lands will be affected by emissions from the new source or 
modification. See KAR 28-19-350(k)(2) ``Prevention of Significant 
Deterioration (PSD) of Air Quality.''
    (2) With respect to the requirements for public notification in CAA 
section 127, the infrastructure SIP should provide citations to 
regulations in the SIP requiring the air agency to regularly notify the 
public of instances or areas in which any NAAQS are exceeded; advise 
the public of the health hazard associated with such exceedances; and 
enhance public awareness of measures that can prevent such exceedances 
and of ways in which the public can participate in the regulatory and 
other efforts to improve air quality. As discussed previously with 
element (G), KAR 28-19-56 ``Episode Critera'' contains provisions that 
allow the Secretary to proclaim an air pollution alert, air pollution 
warning, or air pollution emergency status whenever he or she 
determines that the accumulation of air contaminants at any sampling 
location has attained levels which could, if such levels are sustained 
or exceeded, threaten the public health. Any of these emergency 
situations can also be declared by the Secretary even in the absence of 
issuance of a high air pollution potential advisory or equivalent 
advisory from a local weather bureau meteorologist, if deemed necessary 
to protect the public health. In the event of such an emergency 
situation, public notification will occur through local weather 
bureaus.
    In addition, information regarding air pollution and related 
issues, is provided on a KDHE Web site, http://www.kdheks.gov/bar/. 
This information includes air quality data, information regarding the 
NAAQS, health effects of poor air quality, and links to the Kansas Air 
Quality Monitoring Network. KDHE also has an ``Outreach and Education'' 
Web page (http://www.kdheks.gov/bar/air_outreach/air_quality_edu.htm) with information on how individuals can take measures to 
reduce emissions and improve air quality in daily activities.
    (3) With respect to the applicable requirements of Part C of the 
CAA, relating to prevention of significant deterioration of air quality 
and visibility protection, we note in section VI of this rulemaking how 
the Kansas SIP meets the PSD requirements, incorporating the Federal 
rule by reference. With respect to the visibility component of section 
110(a)(2)(J), EPA recognizes that states are subject to visibility and 
regional haze program requirements under part C of the CAA. However, 
when EPA establishes or revises a NAAQS, these visibility and regional 
haze requirements under part C do not change. EPA believes that there 
are no new visibility protection requirements under part C as a result 
of a revised NAAQS. Therefore, there are no newly applicable visibility 
protection obligations pursuant to element J after the promulgation of 
a new or revised NAAQS.
    Based upon review of the State's infrastructure SIP submissions for 
the 1997 and 2006 PM2.5 NAAQS, and relevant statutory and 
regulatory authorities and provisions referenced in those submissions 
or referenced in Kansas' SIP, EPA believes that Kansas has the adequate 
infrastructure needed to address section 110(a)(2)(J) for the 1997 and 
2006 PM2.5 NAAQS and is proposing to approve the January 8, 
2008, submission regarding the 1997 PM2.5 infrastructure SIP 
requirements and the April 12, 2010, submission regarding the 2006 
PM2.5 infrastructure SIP requirements for this element.
    (K) Air quality and modeling/data: Section 110(a)(2)(K) requires 
that SIPs provide for performing air quality modeling, as prescribed by 
EPA, to predict the effects on ambient air quality of any emissions of 
any NAAQS pollutant, and for submission of such data to EPA upon 
request.
    Kansas has authority to conduct air quality modeling and report the 
results of such modeling to EPA. KSA Section 65-3005(a)(9) gives the 
Secretary the authority to encourage and conduct studies, 
investigations and research relating to air contamination and air 
pollution and their causes, effects, prevention, abatement and control. 
As an example of regulatory authority to perform modeling for purposes 
of determining NAAQS compliance, the regulations at KAR 28-19-350 
``Prevention of Significant Deterioration (PSD) of Air Quality'' 
incorporate EPA modeling guidance in 40 CFR part 51, appendix W for the 
purposes of demonstrating compliance or non-compliance with a NAAQS.
    The Kansas statutes and regulations also give KDHE the authority to 
require that modeling data be submitted for analysis. KSA Section 65-
3007(b) grants the Secretary the authority to require air contaminant 
emission sources to monitor emissions, operating parameters, ambient 
impact of any source emissions or any other parameters deemed 
necessary. The Secretary may also require these sources to keep records 
and make reports consistent with the purposes of the Kansas Air Quality 
Act. These reports could include information as may be required by the 
Secretary concerning the location, size, and height of contaminant 
outlets, processes employed, fuels used, and the nature and time 
periods or duration of emissions, and such information as is relevant 
to air pollution and available or reasonably capable of being 
assembled. KSA Section 65-3007(c).
    Based upon review of the State's infrastructure SIP submissions for 
the 1997 and 2006 PM2.5 NAAQS, and relevant statutory and 
regulatory authorities and provisions referenced in those submissions 
or referenced in Kansas' SIP, EPA believes that Kansas has the adequate 
infrastructure needed to address section 110(a)(2)(K) for the 1997 and 
2006 PM2.5 NAAQS and is proposing to approve the January 8, 
2008, submission regarding the 1997 PM2.5 infrastructure SIP 
requirements and the April 12, 2010, submission regarding the 2006 
PM2.5 infrastructure SIP requirements for this element.
    (L) Permitting Fees: Section 110(a)(2)(L) requires SIPs to require 
each major stationary source to pay permitting fees to the permitting 
authority, as a condition of any permit required under the CAA, to 
cover the cost of reviewing and acting upon any application for such a 
permit, and, if the permit is issued, the cost of implementing and 
enforcing the terms of the permit. The fee requirement applies until a 
fee program established by the state pursuant to Title V of the

[[Page 22838]]

CAA, relating to operating permits, is approved by EPA.
    KSA Section 65-3008(f) allows the Secretary to fix, charge, and 
collect fees for approvals and permits (and the renewals thereof). KSA 
Section 65-3024 grants the Secretary the authority to establish annual 
emissions fees. Fees from the construction permits and approvals are 
deposited into the Kansas state treasury and credited to the state 
general fund. Emissions fees are deposited into an air quality fee fund 
in the Kansas state treasury. Moneys in the air quality fee fund can 
only be used for the purpose of administering the Kansas Air Quality 
Act.
    Kansas' Title V program, found at KAR 28-19-500 to 28-19-564, was 
approved by EPA on January 30, 1996 (61 FR 2938). EPA is reviewing the 
Kansas Title V program, including Title V fee structure, separately 
from this proposed action. Because the Title V program and associated 
fees legally are not part of the SIP, the infrastructure SIP action we 
are proposing today does not preclude EPA from taking future action 
regarding Kansas' Title V program.
    Therefore, EPA believes that the requirements of section 
110(a)(2)(L) are met and is therefore proposing to approve the January 
8, 2008, submittal regarding the 1997 PM2.5 infrastructure 
SIP requirements and the April 12, 2010, submittal regarding the 2006 
PM2.5 infrastructure SIP requirements for this element.
    (M) Consultation/participation by affected local entities: Section 
110(a)(2)(M) requires SIPs to provide for consultation and 
participation by local political subdivisions affected by the SIP.
    KSA Section 65-3005(a)(8)(A) gives the Secretary the authority to 
encourage local units of government to handle air pollution problems 
within their respective jurisdictions and on a cooperative basis and to 
provide technical and consultative assistance therefor. The Secretary 
may also enter into agreements with local units of government to 
administer all or part of the provisions on the Kansas Air Quality Act 
in the units' respective jurisdiction. The Secretary also has the 
authority to advise, consult, and cooperate with local governments. KSA 
Section 65-3005(a)(14). He or she may enter into contracts and 
agreements with local governments as is necessary to accomplish the 
goals of the Kansas Air Quality Act. KSA Section 65-3005(a)(16).
    Currently, KDHE's Bureau of Air and Radiation has signed State and/
or Local Agreements with the Department of Air Quality from the Unified 
Government of Wyandotte County-Kansas City, Kansas; the Wichita Office 
of Environmental Health; the Shawnee County Health Department, the 
Johnson County Department of Health & Environment; and the Mid-America 
Regional Council. These agreements establish formal partnerships 
between the Bureau of Air and Radiation and these local agencies to 
work together to develop and annually update strategic goals, 
objectives and strategies for reducing emissions and improving air 
quality.
    In addition, as previously noted in the discussion about section 
110(a)(2)(J), Kansas' statutes and regulations require that KDHE 
consult with local political subdivisions for the purposes of carrying 
out its air pollution control responsibilities.
    Based upon review of the State's infrastructure SIP submissions for 
the 1997 and 2006 PM2.5 NAAQS, and relevant statutory and 
regulatory authorities and provisions referenced in those submissions 
or referenced in Kansas' SIP, EPA believes that Kansas has the adequate 
infrastructure needed to address section 110(a)(2)(M) for the 1997 and 
2006 PM2.5 NAAQS and is proposing to approve the January 8, 
2008, submission regarding the 1997 PM2.5 infrastructure SIP 
requirements and the April 12, 2010, submission regarding the 2006 
PM2.5 infrastructure SIP requirements for this element.

VI. How does the March 1, 2013 Kansas PSD submission satisfy the 2008 
PM2.5 NSR Rule and the PM2.5 PSD Increment-SILs-
SMC Rule?

    To address the requirements of EPA's May 16, 2008, PM2.5 
implementation rule and the October 20, 2010, PM2.5 PSD 
Increment-SILs-SMC Rule, as described above in section V in the 
discussion of element (C), Kansas submitted a SIP revision received by 
EPA on March 1, 2013, which updates its PSD rules. In this SIP 
submission, Kansas incorporates by reference Federal updates through 
July 1, 2011. The submission also updated Kansas' PSD rules to 
establish the allowable PM2.5 increments, the optional 
screening tools (SILs), and significant monitoring concentrations 
(SMCs). On April 2, 2013, Kansas amended and clarified its submission 
so that it was no longer intending to include specific provisions 
relating to the SILs and SMC affected by the January 22, 2013, court 
decision referenced above. Our analysis of the SIP revision, with 
respect to both rules, follows.
    Specifically, regarding the 2008 PM2.5 Implementation 
Rule, the submitted SIP revision changes include incorporating by 
reference Federal rule changes through July 1, 2011. The submission is 
being updated for consistency with 40 CFR 52.21, which established the 
requirement for NSR permits to address directly emitted 
PM2.5 and precursor pollutants and promulgated significant 
emissions rates, and condensables for direct PM2.5 and 
precursor pollutants (SO2 and NOX).
    As described under element C in section V of this rulemaking, 
states had an obligation to address condensable PM emissions as a part 
of the 2008 PM2.5 NSR implementation rule. In Kansas' March 
1, 2013, SIP submission, Kansas incorporated by reference EPA's 
definition for regulated NSR pollutant (formerly at 40 CFR 
51.166(b)(49)(vi)), including the term ``particulate matter 
emissions,'' as inadvertently promulgated in the 2008 NSR Rule. EPA is, 
however, proposing to approve into the Kansas SIP the requirement that 
condensable PM be accounted for in applicability determinations and in 
establishing emissions limitations for PM2.5 and 
PM10 because it is more stringent than the Federal 
requirement. Kansas can choose to initiate further rulemaking to ensure 
consistency with federal requirements.
    Specifically, regarding the PSD increments, the submitted SIP 
revision changes include: (1) The PM2.5 increments as 
promulgated at 40 CFR 51.166(c)(1) and (p)(4) (for Class I Variances) 
and (2) amendments to the terms ``major source baseline date'' (at 40 
CFR 51.166(b)(14)(i)(c)) and 52.21(b)(14)(i)(c)), ``minor source 
baseline date'' (including establishment of the ``trigger date'') and 
``baseline area'' (as amended at 40 CFR 51.166(b)(15)(i) and (ii) and 
52.21(b)(15)(i)). In the March 1, 2013, SIP revision, Kansas 
incorporates by reference into the SIP the particular definitions from 
40 CFR part 51 as referenced above through July 1, 2011.
    In today's action, EPA is proposing to approve Kansas' March 1, 
2013, revisions to address the provisions relating to both the 2008 
PM2.5 NSR implementation and the 2010 PM2.5 PSD 
Increments SILs-SMC Rules, except as identified in Kansas' April 2, 
2013, letter where Kansas amended and clarified its submission so that 
it was no longer intending to include specific provisions relating to 
the SILs and SMC affected by the January 22, 2013, court decision 
referenced above. As noted in EPA's May 29, 2007, final action on 
Kansas' PSD program (72 FR 29429), provisions of the incorporated 2002 
NSR reform rule relating to the Clean Unit Exemption, Pollution Control 
Projects, (PCPs) and exemption from the

[[Page 22839]]

recordkeeping provisions for certain sources using the actual-to-
projected-actual emissions projections test are not SIP approved 
because in 2005 the DC Circuit Court vacated portions of the rule 
pertaining to clean units and PCPs, and remanded portions of the rule 
regarding recordkeeping. In addition, EPA did not approve Kansas' rule 
incorporating EPA's 2007 revision of the definition of ``chemical 
processing plants'' (the ``Ethanol Rule,'') (72 FR 24060, May 1, 2007) 
or EPA's 2008 ``fugitive emissions rule,'' (73 FR 77882, December 19, 
2008). Otherwise, Kansas' revisions also incorporate by reference the 
other provisions of 40 CFR 52.21 as in effect on July 1, 2011.

VII. What are the additional provisions of the March 1, 2013, SIP 
submission that EPA is proposing to take action on?

    Within Kansas' March 1, 2013, SIP submission, Kansas amended rule 
KAR 28-19-350 ``Prevention of Significant Deterioration (PSD) of Air 
Quality,'' to defer the application of the PSD permitting requirements 
to CO2 emissions from bioenergy and other biogenic 
stationary sources pursuant to the July 20, 2011, EPA final rulemaking 
``Deferral for Carbon Dioxide (CO2) Emissions from Bioenergy 
and other Biogenic Sources Under the Prevention of Significant 
Deterioration (PSD) and Title V Programs'' (see 76 FR 43490). The 
Biomass Deferral delays until July 21, 2014, the consideration of 
CO2 emissions from bioenergy and other biogenic sources 
(hereinafter referred to as ``biogenic CO2 emissions'') when 
determining whether a stationary source meets the PSD and Title V 
applicability thresholds, including those for the application of Best 
Available Control Technology (BACT). Stationary sources that combust 
biomass (or otherwise emit biogenic CO2 emissions) and 
construct or modify during the deferral period will avoid the 
application of PSD to the biogenic CO2 emissions resulting 
from those actions. The deferral applies only to biogenic 
CO2 emissions and does not affect non-GHG pollutants or 
other GHG's (e.g., methane (CH4) and nitrous oxide 
(N2O)) emitted from the combustion of biomass fuel. Also, 
the deferral only pertains to biogenic CO2 emissions in the 
PSD and Title V programs and does not pertain to any other EPA programs 
such as the GHG Reporting Program. Biogenic CO2 emissions 
are defined as emissions of CO2 from a stationary source 
directly resulting from the combustion or decomposition of 
biologically-based materials other than fossil fuels and mineral 
sources of carbon. Examples of ``biogenic CO2 emissions'' 
include, but are not limited to:
     CO2 generated from the biological decomposition 
of waste in landfills, wastewater treatment or manure management 
processes;
     CO2 from the combustion of biogas collected 
from biological decomposition of waste in landfills, wastewater 
treatment or manure management processes;
     CO2 from fermentation during ethanol production 
or other industrial fermentation processes;
     CO2 from combustion of the biological fraction 
of municipal solid waste or biosolids;
     CO2 from combustion of the biological fraction 
of tire-derived fuel; and
     CO2 derived from combustion of biological 
material, including all types of wood and wood waste, forest residue, 
and agricultural material.
    EPA recognizes that use of certain types of biomass can be part of 
the national strategy to reduce dependence on fossil fuels. Efforts are 
underway at the Federal, state and regional level to foster the 
expansion of renewable resources and promote bioenergy projects when 
they are a way to address climate change, increase domestic alternative 
energy production, enhance forest management and create related 
employment opportunities.
    For stationary sources co-firing fossil fuel and biologically-based 
fuel, and/or combusting mixed fuels (e.g., tire derived fuels, 
municipal solid waste (MSW)), the biogenic CO2 emissions 
from that combustion are included in the biomass deferral. However, the 
fossil fuel CO2 emissions are not. Emissions of 
CO2 from processing of mineral feedstocks (e.g., calcium 
carbonate) are also not included in the deferral. Various methods are 
available to calculate both the biogenic and fossil fuel portions of 
CO2 emissions, including those methods contained in the GHG 
Reporting Program (40 CFR part 98). Consistent with the other 
pollutants in PSD and Title V, there are no requirements to use a 
particular method in determining biogenic and fossil fuel 
CO2 emissions.
    EPA's final biomass deferral rule is an interim deferral for 
biogenic CO2 emissions only and does not relieve sources of 
the obligation to meet the PSD and Title V permitting requirements for 
other pollutant emissions that are otherwise applicable to the source 
during the deferral period or that may be applicable to the source at a 
future date pending the results of EPA's study and subsequent 
rulemaking action. This means, for example, that if the deferral is 
applicable to biogenic CO2 emissions from a particular 
source during the three-year effective period and the study and 
potential future rulemaking do not provide for a permanent exemption 
from PSD and Title V permitting requirements for the biogenic 
CO2 emissions from a source with particular characteristics, 
then the deferral would end for that type of source and its biogenic 
CO2 emissions would have to be appropriately considered in 
any applicability determinations that the source may need to conduct 
for future stationary source permitting purposes, consistent with the 
potential subsequent rulemaking and the Final Tailoring Rule (e.g., a 
major source determination for Title V purposes or a major modification 
determination for PSD purposes).
    EPA also wishes to clarify that we do not require that a PSD permit 
issued during the deferral period be amended or that any PSD 
requirements in a PSD permit existing at the time the deferral took 
effect, such as BACT limitations, be revised or removed from an 
effective PSD permit for any reason related to the deferral or when the 
deferral period expires. The regulation at 40 CFR 52.21(w) requires 
that any PSD permit shall remain in effect, unless and until it expires 
or it is rescinded, under the limited conditions specified in that 
provision. Thus, a PSD permit that is issued to a source while the 
deferral was effective need not be reopened or amended if the source is 
no longer eligible to exclude its biogenic CO2 emissions 
from PSD applicability after the deferral expires. However, if such a 
source undertakes a modification that could potentially require a PSD 
permit and the source is not eligible to continue excluding its 
biogenic CO2 emissions after the deferral expires, the 
source will need to consider its biogenic CO2 emissions in 
assessing whether it needs a PSD permit to authorize the modification.
    Any future actions to modify, shorten, or make permanent the 
deferral for biogenic sources are beyond the scope of the Biomass 
Deferral action and this proposed approval of the deferral into the 
Kansas SIP, and will be addressed through subsequent rulemaking. The 
results of EPA's review of the science related to net atmospheric 
impacts of biogenic CO2 and the framework to properly 
account for such emissions in Title V and PSD permitting programs based 
on the study are prospective and unknown. Thus, we are unable to 
predict which biogenic CO2 sources, if any, currently 
subject to the deferral as incorporated into the Kansas SIP could be 
subject to any permanent

[[Page 22840]]

exemptions, or which currently deferred sources could be potentially 
required to account for their emissions.
    Similar to our approach with the Tailoring Rule, EPA incorporated 
the biomass deferral into the regulations governing state programs and 
into the Federal PSD program by amending the definition of ``subject to 
regulation'' under 40 CFR 51.166 and 40 CFR 52.21 respectively. Kansas 
implements its PSD program by incorporating section 52.21 by reference 
in KAR 28-19-350. The Kansas submission incorporates by reference the 
(CFR) through July 1, 2011, in order to adopt the Biomass Deferral.
    Based upon EPA's analysis of the required provisions of the July 
20, 2011 Biomass Deferral rule and how Kansas meets these requirements, 
EPA is proposing to approve the March 1, 2013, Kansas SIP revision in 
order to adopt the Biomass Deferral.

VIII. What action is EPA proposing?

    EPA proposes to approve the infrastructure SIP submissions from 
Kansas which address the requirements of CAA sections 110(a)(1) and (2) 
as applicable to the 1997 and 2006 NAAQS for PM2.5. Based 
upon review of the State's infrastructure SIP submissions for the 1997 
and 2006 PM2.5 NAAQS, and relevant statutory and regulatory 
authorities and provisions referenced in those submissions or 
referenced in Kansas' SIP, EPA believes that Kansas has the 
infrastructure to address all applicable required elements of sections 
110(a)(1) and(2) (except otherwise noted) to ensure that the 1997 and 
2006 PM2.5 NAAQS are implemented in the state.
    In addition, EPA proposes to approve two additional SIP submissions 
from Kansas, one addressing the Prevention of Significant Deterioration 
(PSD) program in Kansas as it relates to PM2.5 (unless 
otherwise noted) and another SIP revision addressing the requirements 
of section 128 of the CAA, both of which support the requirements 
associated with infrastructure SIPs.
    We are hereby soliciting comment on this proposed action. Final 
rulemaking will occur after consideration of any comments.

IX. Statutory and Executive Order Review

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this proposed action:
     is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have Tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

X. Statutory Authority

    The statutory authority for this action is provided by Section 110 
of the CAA, as amended (42 U.S.C. 7410).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Ozone, Particulate matter, 
Reporting and recordkeeping requirements.

    Dated: April 5, 2013.
Karl Brooks,
Regional Administrator, Region 7.
[FR Doc. 2013-09053 Filed 4-16-13; 8:45 am]
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