[Federal Register Volume 78, Number 119 (Thursday, June 20, 2013)]
[Rules and Regulations]
[Pages 37126-37129]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-14627]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R07-OAR-2013-0233; FRL-9825-6]


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: Final rule.

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SUMMARY: EPA is finalizing approval of four Kansas State Implementation 
Plan (SIP) submissions. EPA is approving portions of two SIP 
submissions addressing the applicable infrastructure requirements of 
the Clean Air Act (CAA) for the 1997 and 2006 National Ambient Air 
Quality Standards (NAAQS) for fine particulate matter 
(PM2.5). These infrastructure requirements are designed to 
ensure that the structural components

[[Page 37127]]

of each state's air quality management program are adequate to meet the 
state's responsibilities under the CAA. EPA is also taking final action 
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. The rationale 
for this action is explained in this notice and in more detail in the 
notice of proposed rulemaking for this action, which was published on 
April 17, 2013.

DATES: This rule will be effective July 22, 2013.

ADDRESSES: EPA has established docket number EPA-R07-OAR-2013-0233 for 
this action. All documents in the electronic docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, 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 U.S. Environmental 
Protection Agency, Region 7, 11201 Renner Boulevard, Lenexa, Kansas 
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:

I. Background and Purpose
II. EPA's Response to Comment
III. Summary of EPA Final Action
IV. Statutory and Executive Order Review

I. Background and Purpose

    On April 17, 2013, EPA proposed to approve four Kansas SIP 
submissions (78 FR 22827). 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. As originally detailed in the 
proposed rulemaking, EPA had previously approved section 
110(a)(2)(D)(i)(I) and (II)--Interstate and international transport 
requirements of Kansas' January 8, 2008, SIP submission for the 1997 
PM2.5 NAAQS (72 FR 10606, May 8, 2007); and EPA disapproved 
section 110(a)(2)(D)(i)(I)--Interstate and international transport 
requirements of Kansas' April 12, 2010, SIP submission for the 2006 
PM2.5 NAAQS (76 FR 43143, July 20, 2011). Therefore, we did 
not propose to act on those portions in the April 17, 2013, proposed 
rule since they had already been acted upon by EPA. With this final 
action, we will have acted on both the January 8, 2008, and the April 
10, 2010, submissions in their entirety, excluding those provisions 
that are not within the scope of today's rulemaking as identified in 
section IV of the April 17, 2013, proposed action 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). On April 2, 2013, Kansas amended and clarified its 
submission so that it no longer included specific provisions affected 
by the January 22, 2013, U.S. Court of Appeals for the District of 
Columbia court decision which 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 October 20, 2010, PM2.5 PSD Rule (Sierra Club v. 
EPA, No. 10-1413 (filed December 17, 2010)). In addition, this rule 
amendment defers the application of PSD permitting requirements to 
carbon dioxide emissions from bioenergy and other biogenic stationary 
sources.
    The fourth submission was received by EPA on March 19, 2013. This 
submission addresses the conflict of interest provisions in section 128 
of the CAA as it relates to element E of the infrastructure SIP. In the 
proposed rulemaking, EPA proposed to ``parallel process'' the SIP 
revision relating to these conflict of interest provisions. Under this 
procedure, EPA proposed rulemaking action concurrently with the State 
of Kansas' procedures for approving a SIP submission and amending its 
regulations. Because Kansas did not receive any comments during its 
public comment period and therefore the regulation revision adopted by 
Kansas is identical to the draft regulation which EPA described in the 
proposal, in today's action EPA is finalizing approval of the conflict 
of interest provisions.
    In summary, EPA is taking final action today to approve these four 
SIP submissions from Kansas. The first two submissions address the 
requirements of CAA sections 110(a)(1) and (2) as applicable to the 
1997 and 2006 NAAQS for PM2.5. With this final action, we 
will have acted on both the 1997 and 2006 submissions in their entirety 
excluding those provisions that are not within the scope of the 
rulemaking. EPA is also taking final action 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 in EPA's proposed action on 
April 17, 2013 (78 FR 22827), and another SIP revision addressing the 
requirements of section 128 of the CAA, both of which support the 
requirements associated with infrastructure SIPs.
    The public comment period on EPA's proposed rule opened April 17, 
2013, the date of its publication in the Federal Register, and closed 
on May 17, 2013. During this period, EPA received one comment from a 
citizen, and one from the Kansas Department of Health and Environment 
(KDHE). The letters are available in the docket to today's final rule. 
The citizen comment was in support of EPA's action, and we appreciate 
the support for this rulemaking. No changes were made to this final 
action based on this comment. Today's final action includes EPA's 
response to KDHE's comment.

II. EPA's Response to Comment

    Comment: KDHE commented that EPA retract certain language in the 
proposed rulemaking for today's final

[[Page 37128]]

action. The proposed rulemaking stated at 78 FR 22838: ``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.'' 
KDHE contends that its March 1, 2013, PSD SIP submission was intended 
to align the state's PSD rules with the Federal rules and therefore is 
not more stringent than Federal requirements.
    Response: After evaluating KDHE's comment, EPA agrees that KDHE's 
March 1, 2013, submission did not include provisions that are more 
stringent than the Federal requirements.

III. Summary of EPA Final Action

    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. Therefore, 
EPA is taking final action to approve Kansas' infrastructure SIP 
submissions for the 1997 and 2006 NAAQS for PM2.5 for the 
following section 110(a)(2) elements and sub-elements: (A), (B), (C), 
(D)(i)(II) (prongs 3 and 4), D(ii), (E), (F), (G), (H), (J), (K), (L), 
and (M). In addition, EPA is approving two SIP submissions, one 
addressing the Prevention of Significant Deterioration (PSD) program in 
Kansas as it relates to PM2.5, and another SIP revision 
addressing the requirements of section 128 of the CAA, both of which 
support the requirements associated with infrastructure SIPs.

IV. 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.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by August 19, 2013. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

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

    Dated: June 10, 2013.
Mark Hague,
Acting Regional Administrator, Region 7.

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

PART 52--[AMENDED]

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

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

Subpart R--Kansas

0
2. In Sec.  52.870:
0
a. The table in paragraph (c) is amended by revising the entry for 28-
19-350.
0
b. The table in paragraph (e) is amended by adding new entries (34), 
(35), and (36) in numerical order at the end of the table.
    The revisions and additions read as follows:


Sec.  52.870  Identification of plan.

* * * * *
    (c) * * *

[[Page 37129]]



                                         EPA-Approved Kansas Regulations
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                                                 State effective
     Kansas citation               Title               date         EPA approval date          Explanation
----------------------------------------------------------------------------------------------------------------
       Kansas Department of Health and Environment Ambient Air Quality Standards and Air Pollution Control
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                                                  * * * * * * *
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                                       Construction Permits and Approvals
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
28-19-350................  Prevention of             12/28/2012   6-20-13.............  Provisions of the 2010
                            Significant                           INSERT Federal         PM2.5 PSD--Increments,
                            Deterioration (PSD)                    Register  PAGE        SILs and SMCs rule (75
                            of Air Quality.                        NUMBER WHERE THE      FR 64865, October 20,
                                                                   DOCUMENT BEGINS].     2010) relating to SILs
                                                                                         and SMCs that were
                                                                                         affected by the January
                                                                                         22, 2013 U.S. Court of
                                                                                         Appeals decision are
                                                                                         not SIP approved.
                                                                                        Provisions of the 2002
                                                                                         NSR reform rule
                                                                                         relating to the Clean
                                                                                         Unit Exemption,
                                                                                         Pollution Control
                                                                                         Projects, and exemption
                                                                                         from recordkeeping
                                                                                         provisions for certain
                                                                                         sources using the
                                                                                         actual-to-projected-
                                                                                         actual emissions
                                                                                         projections test are
                                                                                         not SIP approved. In
                                                                                         addition, we have not
                                                                                         approved 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).
 
                                                  * * * * * * *
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* * * * *
    (e) * * *

                                  EPA-Approved Kansas Nonregulatory Provisions
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                                        Applicable
    Name of non-regulatory SIP      geographic area or       State       EPA approval date       Explanation
            provision               nonattainment area  submittal date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
(34) Section 110(a)(2)             Statewide..........       1/08/2008  6-20-13 INSERT       This action
 Infrastructure Requirements for                                         CITATION OF          addresses the
 the 1997 PM2.5 NAAQS.                                                   PUBLICATION].        following CAA
                                                                                              elements:
                                                                                              110(a)(2)(A), (B),
                                                                                              (C), (D)(i)(II)
                                                                                              (prongs 3 and 4),
                                                                                              D(ii), (E), (F),
                                                                                              (G), (H), (J),
                                                                                              (K), (L), and (M),
                                                                                              except as noted.
(35) Section 110(a)(2)             Statewide..........       4/12/2010  6-20-13 [INSERT      This action
 Infrastructure Requirements for                                         CITATION OF          addresses the
 the 2006 PM2.5 NAAQS.                                                   PUBLICATION].        following CAA
                                                                                              elements:
                                                                                              110(a)(2)(A), (B),
                                                                                              (C), (D)(i)(II)
                                                                                              (prongs 3 and 4),
                                                                                              D(ii), (E), (F),
                                                                                              (G), (H), (J),
                                                                                              (K), (L), and (M),
                                                                                              except as noted.
(36) Section 128 Declaration:      Statewide..........       3/19/2013  6-20-13 [INSERT      ...................
 Kansas Department of Health and                                         CITATION OF
 Environment Representation and                                          PUBLICATION].
 Conflicts of Interest
 Provisions, Kansas Revised
 Statutes (KSA). KSA 46-221, KSA
 46-229, KSA 46-247(c).
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[FR Doc. 2013-14627 Filed 6-19-13; 8:45 am]
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