[Federal Register Volume 83, Number 192 (Wednesday, October 3, 2018)]
[Rules and Regulations]
[Pages 49826-49832]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-21434]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R07-OAR-2017-0512; FRL-9984-66--Region 7]


Approval of Kansas Air Quality State Implementation Plans; 
Construction Permits and Approvals Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to approve revisions to the Kansas State Implementation Plan 
(SIP) and the Clean Air Act (CAA) 112(l) program. Specifically, these 
revisions implement the revised National Ambient Air Quality Standards 
(NAAQS) for fine particulate matter; clarify and refine applicable 
criteria for sources subject to the Kansas minor New Source Review

[[Page 49827]]

permitting program; update the construction permitting program fee 
structure and schedule; and make minor revisions and corrections. 
Approval of these revisions ensures consistency between the State and 
federally-approved rules and ensures Federal enforceability of the 
State's rules.

DATES: This final rule is effective on November 2, 2018.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R07-OAR-2017-0512. All documents in the docket are 
listed on the https://www.regulations.gov website. Although listed in 
the index, some information is not publicly available, i.e., CBI or 
other information whose disclosure is restricted by statute. Certain 
other material, such as copyrighted material, is not placed on the 
internet and will be publicly available only in hard copy form. 
Publicly available docket materials are available through https://www.regulations.gov or please contact the person identified in the FOR 
FURTHER INFORMATION CONTACT section for additional information.

FOR FURTHER INFORMATION CONTACT: Deborah Bredehoft, Environmental 
Protection Agency, Air Planning and Development Branch, 11201 Renner 
Boulevard, Lenexa, Kansas 66219 at (913) 551-7164, or by email at 
[email protected].

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

I. Background
II. What is being addressed in this document?
III. What Part 52 revision is EPA approving?
IV. What 112(l) revision is EPA approving?
V. Have the requirements for approval of a SIP revision been met?
VI. EPA's Response to Comments
VII. What action is EPA taking?
VIII. Incorporation by Reference
IX. Statutory and Executive Order Reviews

I. Background

    EPA received Kansas's SIP submission on December 5, 2016. On 
September 21, 2017, EPA proposed in the Federal Register approval of 
the SIP submission. See 82 FR 44131. In conjunction with the September 
21, 2017 notice of proposed rulemaking (NPR), EPA issued a direct final 
rule (DFR) approving the same SIP submission. See 82 FR 44103. However, 
in the DFR, EPA stated that if EPA received adverse comments by October 
23, 2017, the action would be withdrawn and not take effect. EPA 
received adverse comments prior to the close of the comment period, and 
therefore, EPA withdrew in the Federal Register, the DFR on November 
17, 2017. See 82 FR 54300.
    This final rule action will include the updated docket, address 
comments received, and finalize the approval of Kansas's SIP 
submission.

II. What is being addressed in this document?

    EPA is taking final action to approve revisions to the Kansas SIP 
and CAA 112(l) program submitted by the State of Kansas on December 5, 
2016. The SIP submission requests revisions to Kansas Administrative 
Regulation (K.A.R.) 28-19-300 that include: implementation of the New 
Source Review permitting component of section 110(a)(2)(C) for the 1997 
and 2006 PM2.5 NAAQS, pursuant to EPA's NSR PM2.5 
Implementation Rule (2008 NSR Rule) (73 FR 28321, May 16, 2008); and 
clarification of and refining applicability criteria for sources 
subject to the minor New Source Review permitting program. Specific 
revisions include: (1) Eliminating the requirements for all Title IV 
Acid Rain sources to obtain construction permits that would not have 
otherwise been required; (2) clarifying the construction review 
requirements for sources emitting hazardous air pollutants, or sources 
subject to standards promulgated by the EPA; (3) eliminating the 
requirement for sources to obtain an approval solely due to being 
subject to standards promulgated by the EPA without regard to emissions 
for insignificant activities; and making minor revisions and 
corrections. The SIP submission also includes the following revisions 
to K.A.R. 28-19-304: (1) Updating the construction permitting program 
fee structure from an estimated capital cost mechanism to one based on 
complexity of source and permit type and (2) updating the fee schedule 
to bring in sufficient revenue to adequately administer the Kansas Air 
Quality Act.

III. What Part 52 revision is EPA approving?

    EPA is approving requested revisions to the Kansas SIP relating to 
the following:
     Construction Permits and Approvals. Kansas Administrative 
Regulations 28-19-300. Applicability; and
     Construction Permits and Approvals. Kansas Administrative 
Regulations 28-19-304. Fees.
    EPA has conducted analysis on the State's revisions and has found 
that the revisions ensure consistency between the State and federally-
approved rules and ensures Federal enforceability of the State's rules. 
Additional information on the EPA's analysis can be found in the 
Technical Support Document (TSD) included in this docket.

IV. What 112(l) revision is EPA approving?

    EPA is also taking final action to approve a portion of K.A.R. 28-
19-300 under the CAA 112(l) program pursuant to 40 CFR part 63, subpart 
E, as requested by the State of Kansas on April 19, 2017. The State of 
Kansas is requesting that the applicable portions of K.A.R. 28-19-300 
pertaining to limiting the potential-to-emit of hazardous air 
pollutants (HAPs) be approved under CAA 112(l) and 40 CFR part 63, 
subpart E, in addition to being approved under the SIP.\1\ 
Specifically, K.A.R. 28-19-300(a)(2) and (3) as well as K.A.R. 28-19-
300(b)(4) through (6) are also approved under CAA section 112(l) 
because they require permits or approvals for hazardous air pollutants 
that may limit the potential-to-emit of hazardous air pollutants by 
establishing permit conditions that are federally-enforceable.
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    \1\ State Implementation Plan provisions approved under section 
110 of the Clean Air Act are for criteria pollutants. Provisions 
related to hazardous air pollutants are approved under section 112 
of the Clean Air Act.
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V. Have the requirements for approval of a SIP revision been met?

    The State submission has met the public notice requirements for SIP 
submissions in accordance with 40 CFR 51.102. The submission also 
satisfied the completeness criteria of 40 CFR part 51, appendix V. The 
State provided public notice of this SIP revision from August 11, 2016, 
to October 13, 2016, and received one comment letter. The SIP revision 
was not further revised by the State based on public comment prior to 
its submission to EPA. In addition, as explained above and in more 
detail in the technical support document which is part of this docket, 
the revision meets the substantive SIP requirements of the CAA, 
including section 110 and the implementing regulations.

VI. EPA's Response to Comments

    The public comment period on EPA's proposed rule opened September 
21, 2017, the date of its publication in the Federal Register, and 
closed on October 23, 2017. During this period, EPA received adverse 
comments, which are addressed below.
    Comment 1:
    The commenter stated that SIPs are required to have legally 
enforceable procedures to prevent the construction

[[Page 49828]]

or modification of a source that would violate the control strategy or 
interfere with attainment or maintenance of the NAAQS. 40 CFR 
51.160(a). The commenter is specifically concerned about the EPA 
approval of a new emissions threshold, in K.A.R. 28-19-300(a)(1)(G), of 
10 tons per year of directly emitted PM2.5 without 
additional analysis by the State on whether the emissions threshold 
would allow sources to construct or modify, resulting in interference 
with attainment or maintenance of the NAAQS or a violation of the 
control strategy, as required by 40 CFR 51.160(a) and (b). Further, the 
commenter is concerned regarding applicability of the minor NSR rules 
for modifications of existing sources based on increases in potential 
to emit (PTE). The commenter is concerned that the actual emissions 
increase of PM2.5 could be much greater than 10 tons per 
year and would not trigger minor NSR permitting requirements. According 
to the commenter, the revisions will essentially exempt minor 
modifications from permitting requirements at existing major sources, 
and only major modifications under the Prevention of Significant 
Deterioration (PSD) or nonattainment NSR programs will obtain review 
for impacts on the NAAQS.
    The commenter asserts that States are required to have NSR programs 
that include, but are not limited to, major NSR and PSD programs 
pursuant to section 110(a)(2)(C) of the CAA. The commenter is concerned 
that Kansas' 10 ton per year PM2.5 applicability emissions 
threshold could allow for increased deterioration in air quality over 
PSD baseline concentrations. Thus, the commenter believes that the EPA 
cannot approve such a SIP revision without a demonstration that the SIP 
revision will not cause or contribute to a violation of the applicable 
PSD increment pursuant to section 110(l) of the CAA and 40 CFR 
51.166(a)(2).
    For these reasons, the commenter believes that the EPA must 
disapprove the 10 ton per year PM2.5 applicability emission 
thresholds for Kansas's minor NSR permitting program.
    Response 1:
    In this SIP revision, Kansas is modifying its regulations to 
implement the fine particulate matter standard by clarifying and 
refining the applicability criteria for sources subject to the Kansas 
minor New Source Review permitting program. Kansas's addition of the 10 
ton per year threshold for directly emitted PM2.5 in the 
minor source New Source Review program requires a facility to obtain a 
construction permit for directly emitted PM2.5 is consistent 
with the previously approved approach of using a potential-to-emit (or 
the increase in the potential-to-emit) basis EPA considers a 10 ton per 
year threshold for direct PM2.5 to be reasonable because the 
State is consistent with the significant emission rates \2\ included in 
EPA's PSD preconstruction permitting program.\3\
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    \2\ See 73 FR 28332.
    \3\ 40 CFR 52.21(b)(23)(i).
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    Prior to this action, Kansas used the threshold value of 25 tons 
per year or PM10 threshold value of 15 tons per year (K.A.R. 
28-19-300(1)(A)) to evaluate direct PM2.5. With this 
rulemaking, Kansas has created a separate threshold for directly 
emitted PM2.5 of 10 tons per year.
    Although Kansas's minor New Source Review permitting program did 
not previously include a direct PM2.5 threshold value, 
Kansas does have overarching infrastructure to implement 
PM2.5 throughout the State. Such infrastructure, as 
previously stated, includes a SIP approved major source New Source 
Review program and a monitoring network consistent with EPA's 
monitoring regulations. In fact, based on a review of certified design 
values from the 2005-2007 to 2014-2016 timeframes, Kansas has been 
continuously monitoring attainment for both the annual and 24-hour 
PM2.5 NAAQS EPA believes that the addition of the direct 
PM2.5 threshold in the Kansas Minor New Source Review 
permitting program strengthens Kansas's air quality regulations.
    The commenter also stated that the EPA must disapprove such a high 
minor NSR PM2.5 applicability emission threshold as the 
program could interfere with attainment and maintenance of the NAAQS. 
As stated above, prior to this action, Kansas did not have a specific 
minor source threshold for directly emitted PM2.5. 
Therefore, the PM2.5 threshold value would have been the 
same as the PM threshold value of 25 tons per year (K.A.R. 28-19-300-
(1)(A)). As discussed above, even at this higher threshold value, the 
PM2.5 NAAQS was protected.
    Furthermore, in the EPA's previously referenced Technical Support 
Document \4\ for the 2012 PM2.5 infrastructure SIP, the EPA 
stated that ``[w]ith respect to smaller sources that meet the criteria 
listed in KAR 28-19-300(b) ``Construction Permits and Approvals,'' 
Kansas has a SIP-approved permitting program.'' It further states that 
in the Technical Support Document, ``[i]f the [Air Permitting Section] 
staff 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''). This 
authority is granted by [Kansas Statutes Annotated] 65-3008.'' EPA 
later stated its belief ``that the Kansas SIP meets the requirements of 
section 110(a)(2)(C) for the 2012 annual PM2.5 NAAQS.''
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    \4\ Pages 5 and 6 of the Technical Support Document found in 
docket number: EPA-R07-OAR-2016-0313-0004.
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    Based upon all the above factors, the EPA believes that this action 
does not relax the SIP and that the air quality will be maintained with 
the addition of the PM2.5 threshold value requiring 
facilities to obtain a construction permit.
    Comment 2:
    The commenter stated that by removing the term ``affected source'' 
from K.A.R. 28-19-300(a)(2) of the currently-approved Kansas SIP, the 
EPA is significantly relaxing the Kansas minor New Source Review 
permitting rules. ``Affected source'' is defined in K.A.R. 28-19-200 of 
the EPA-approved SIP as ``a stationary source that includes one or more 
affected units subject to emission reduction requirements or 
limitations under title IV of the Federal clean air act, 42 U.S.C. 7401 
et seq., `acid deposition control.' '' The commenter is concerned that 
the revised permitting rules for modifications of construction permits 
will increase the potential-to-emit of an electrical generating unit 
(EGU) to the level of a PSD major modification significance level or 
greater, when historically, the permitting rules required permits for 
modifications at any EGU.
    The commenter stated that all modifications at most EGUs were 
subject to Kansas' minor NSR permitting program pursuant to K.A.R. 28-
19-300(a)(2) of the currently-approved Kansas SIP, irrespective of the 
tons per year emission thresholds defining minor NSR applicability in 
K.A.R. 28-19-300(a)(1).
    The commenter was concerned that modifications at existing EGUs 
will go entirely unreviewed unless such modifications are a major 
modification under PSD or nonattainment NSR permitting. The commenter 
further stated that the Kansas Department of Health and Environment 
(KDHE) has not submitted any assessment of impacts on the NAAQS or on 
other requirements of the CAA to support approval of such a significant 
SIP relaxation, pursuant to section 110(l) of the CAA and thus, EPA 
must

[[Page 49829]]

disapprove the revisions to K.A.R. 28-19-300 that remove the provision 
in K.A.R. 28-19-300(a)(2).
    Response 2:
    Kansas has a long-standing interpretation that was articulated in a 
2015 technical guidance document.\5\ The guidance states ``[K.A.R. 28-
19-300] was originally written in 1993. The purpose of this guidance 
document is to ensure that the rule is consistently applied in 
accordance with the original intent of the regulation.'' The document 
further states KDHE's interpretation that ``K.A.R. 28-19-300(a)(2) does 
not require a permit for a modification to an Acid Rain Source solely 
due to the unit already being an Acid Rain Source, although 
requirements for construction permits or approvals can be triggered by 
emission increases above permit or approval thresholds, requirements of 
K.A.R. 28-19-350, or other permit or approval triggers.'' Thus, KDHE 
has interpreted K.A.R. 28-19-300(a)(2) to only apply to constructions 
or modifications that result in emission increases. KDHE did not intend 
to require Title IV acid rain sources to obtain construction permits 
for any modification, including modifications that result in emission 
decreases. Therefore, this SIP revision is an administrative change to 
align the Federally-approved SIP with Kansas's current practices. 
Additionally, the CAA does not require construction permits for every 
modification at acid rain sources. Because Kansas's monitoring network 
is currently monitoring attainment for all NAAQS, the EPA does not 
believe this revision will cause air quality to degrade in Kansas.
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    \5\ Kansas Technical Guidance Document--BOA 2015-01.
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    Comment 3:
    The commenter stated that Kansas has changed the requirements for 
preconstruction approval to only apply to ``construction,'' 
``modification,'' or ``reconstruction'' of such sources subject to New 
Source Performance Standards (NSPS), National Emission Standards for 
Hazardous Air Pollutants (NESHAPs), or Maximum Achievable Control 
Technology (MACT) as those terms are defined in 40 CFR parts 60, 61, 
and 63, respectively. The commenter further focused on the terms 
``modification'' and ``modify'' and expressed concern that this change 
in the definition of ``modification'' will significantly reduce the 
number of sources subject to Kansas preconstruction approval and 
significantly decreases the likelihood that Kansas will identify a 
modified source as potentially contributing to air pollution within the 
State and require a minor NSR permit pursuant to K.A.R. 28-19-300(b)(2) 
and 28-19-300(a)(5). Specifically, the commenter stated that the 
definition of ``modification'' under 40 CFR parts 60, 61, and 63 is 
much less inclusive than the definition of ``modification'' as that 
term is used in Kansas' minor NSR rules. Thus, the commenter asserts, 
with the proposed revisions to K.A.R. 28-19-300(b)(3), the large 
majority of modifications at existing sources subject to NSPS, NESHAPs, 
or MACT standards will no longer need to receive KDHE approval prior to 
construction, and the public will lose KDHE's preconstruction 
evaluation of whether a modified source should still be required to 
obtain a preconstruction permit pursuant to K.A.R. 28-19-300(b)(2) and 
28-19-300(a)(5) despite being exempt under K.A.R. 28-19-300(a). The 
commenter believes that this reflects a significant relaxation in 
Kansas' minor NSR permitting rules. Therefore, the commenter believes 
that the EPA must disapprove the revisions to K.A.R. 28-19-300 that 
revises and relaxes K.A.R. 28-19-300(b)(3).
    Response 3:
    EPA disagrees with the commenter that Kansas definition of 
``modification'' represents a relaxation in Kansas' permitting rules. 
The revision to the definition simply excludes modifications which do 
not increase emissions at or above the listed thresholds. Kansas had a 
2015 technical guidance document \6\ which states that Kansas's intent 
was to require a construction approval if the proposed project 
``includes construction or modification that will cause an increase in 
emissions in an amount equal to or in excess of any of these listed 
thresholds.'' \7\ Within Kansas's public hearing statement from October 
13, 2016, it was stated that the proposed change is being done to 
``eliminate the requirement for sources to obtain an approval solely 
due to being subject to standards promulgated by the EPA without regard 
to emissions for insignificant activities.'' Due to Kansas's long-
standing interpretation, the EPA believes that this revision will not 
result in air quality degradation and thus will not result in a 
relaxation in how Kansas has applied the SIP rules. The EPA has 
concluded that this revision to Kansas SIP will not interfere with 
attainment of the NAAQS or with any other requirement of the Act.
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    \6\ Kansas Technical Guidance Document--BOA 2015-01.
    \7\ Page 5 of Construction Permits and Approvals, K.A.R. 28-19-
300, Technical Guidance Document--BOA 2015-01.
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    Comment 4:
    The commenter is concerned that the revisions to K.A.R. 28-19-
300(a)(2) and K.A.R. 28-19-300(b)(3) will relax the SIP. The commenter 
further expressed other concerns: (1) With respect to the minor NSR 
program, the applicability to the minor NSR permitting program in 
Kansas will be whittled down to just those new sources and 
modifications to existing sources that increase the PTE to emissions 
levels at or above the tons per year thresholds in K.A.R. 28-19-
300(a)(1) which are the same as the PSD significance emission levels; 
\8\ (2) several new and revised NAAQS have been promulgated since the 
EPA's initial 1995 \9\ approval of this section, and there has been no 
analysis as to whether the emission applicability thresholds in Kansas' 
minor NSR permitting program are adequate to ensure that no new or 
modified source will be constructed if it would interfere with 
attainment or maintenance of the NAAQS or violate the control strategy; 
(3) if EPA's determination that the tons per year emissions thresholds 
are ``de minimis'' under PSD permitting, it does not address EPA's 
obligation to ensure that Kansas' minor NSR program will not interfere 
with attainment or maintenance of the NAAQS. The commenter stated that 
the NSR program was intended to be a basic backstop on threats to 
attaining and maintaining the NAAQS and thus is an important component 
of the SIP and the EPA cannot approve exemptions from such a minor NSR 
program unless it is shown that the exemptions are truly de minimis to 
the purposes of that program; and (4) EPA has previously required minor 
NSR programs to use much smaller emission thresholds for applicability 
than the major modification significant impact levels. The commenter 
referenced a 2012 Montana Federal Register action\10\ regarding a ``de 
minimis'' increase to Montana's minor NSR program where EPA received 
and reviewed CAA section 110(l) and 193 demonstrations.
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    \8\ 40 CFR 52.21(b)(23)(i).
    \9\ 50 FR 36361-36364 (July 17, 1995)
    \10\ 77 FR 7531-7534.
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    For these reasons, the commenter believes that the EPA cannot 
approve these Kansas minor NSR revisions without evaluating and 
demonstrating to the public that Kansas' minor NSR program, as revised, 
will still meet the mandates of section 110(a)(2)(C) and 40 CFR 51.160.
    Response 4:

[[Page 49830]]

    EPA does not believe the proposed changes constitute a relaxation 
to Kansas's SIP. As noted by the commenter, these thresholds, with the 
exception of PM2.5, were approved into the SIP in 1995. Even 
though Kansas did not provide any modeling to support this action, with 
the exception of the 2008 lead ambient air quality standard, Kansas is 
designated attainment or unclassifiable for all ambient air quality 
standards, including the 2012 PM2.5 standard. EPA views this 
action as the State's effort to ensure consistency between the State's 
regulations, which use the major NSR significance levels as minor NSR 
applicability thresholds, and the EPA's significance levels for 
specific pollutants, such as PM2.5.
    The proposed revisions are to Kansas's minor source NSR program and 
States are allowed discretion in how they develop their own minor 
source NSR program. With regard to the commenter's assertion that there 
was no analysis as to whether the emissions applicability thresholds in 
Kansas' minor NSR permitting program are adequate to ensure it will not 
interfere with attainment or maintenance of the NAAQS, the EPA reviews 
the State's minor NSR program routinely as part of the `infrastructure' 
SIPs. For instance, as recently as September 9, 2016,\11\ the EPA 
stated that ``[i]f the [Air Permitting Section] staff 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.'' EPA further stated that ``EPA is proposing to 
approve Kansas' infrastructure SIP for the 2012 annual PM2.5 
NAAQS with respect to the general requirements in section 110(a)(2)(C) 
to include the program in the SIP that regulates the modification and 
construction of any stationary source as necessary to assure that the 
NAAQS are achieved.'' \12\
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    \11\ 81 FR 62373.
    \12\ EPA-R07-OAR-2016-0313-0003.
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    With respect to the commenter's assertion that the State's minor 
NSR program needs to comply with CAA 110(a)(2)(C) and 40 CFR 51.160 as 
a backstop, in the same September 9, 2016 TSD,\13\ the EPA has also 
determined that the State has in place the ability to regulate NSR to 
comply with CAA 110(a)(2)(C). See the Technical Support Document 
associated with that rulemaking and EPA's response to Comment 1.
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    \13\ 81 FR 62373.
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    With regard to the commenter's reference to Montana's SIP revision, 
EPA approval of one de minimis exemption threshold level in Montana 
does not preclude the approval of a different threshold in another 
State. Each State's universe of minor NSR sources, topography, 
meteorology, and ambient air quality conditions are unique and 
influence the types of exemptions that would not interfere with the 
minor NSR program's ability to meet the applicable Federal 
requirements. See, e.g., June 29, 2018, 83 FR 30553 (Arkansas' SIP 
revision).
    In response to the comment that EPA cannot approve exemptions 
without proving the exemptions are ``de minimis,'' the minor NSR SIP 
rules do not preclude EPA from approving exemptions from a minor NSR 
program, provided that the proposed revisions to the Kansas minor NSR 
program are approvable and do not result in a violation of the control 
strategy or interfere with the attainment or maintenance of a national 
standard. The CAA at section 110(a)(2)(C) requires regulation of the 
modification or construction of any stationary source within the area 
as necessary (emphasis added) to assure that the standards are 
achieved. As such, the CAA at section 110(a)(2)(C) and the minor NSR 
SIP rules found at 40 CFR 51.160 through 51.165, as well as case 
law,\14\ allow exemptions from a minor NSR permitting program. In cases 
such as this, where the minor NSR SIP is being revised, the State must 
also demonstrate that the revisions meet the requirements of CAA 
section 110(l). Similar to the provisions of the Act and rules 
discussed above, section 110(l) requires that EPA cannot approve 
revisions to the Kansas minor NSR SIP unless EPA finds that the changes 
would not interfere with any applicable requirement concerning 
attainment and reasonable further progress, as well as any other 
applicable statutory requirement. The clear reading of the Act and the 
EPA rules are that EPA can approve exemptions to the Kansas minor NSR 
SIP program as long as it finds these exemptions will not interfere 
with attainment or maintenance of a NAAQS or other control strategy. 
See, e.g., June 29, 2018, 83 FR 30553 (approving Arkansas' SIP 
revision).
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    \14\ Alabama Power Company, et al., Petitioners,* v. Douglas M. 
Costle, As Administrator, Environmental Protection Agency, et al., 
Respondents,*Sierra Club, et al., Intervenors.*, 636 F.2d 323 (D.C. 
Cir. 1980).
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    For these reasons and those outlined in the EPA's responses to 
comments 2 and 3 above, the EPA is approving the SIP revisions.
    Comment 5:
    EPA failed to address the March 28, 2017 Executive Order on 
promoting energy independence and economic growth. This order requires 
EPA to assess whether this new regulation imposes burdens on the energy 
sector or economic growth in general. The commenter asserts that 
requiring construction permits for sources will cause an impact in the 
energy sector and impose economic burdens on regulated facilities.
    Response 5:
    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, the EPA's role is to approve State actions, 
provided that they meet the criteria of the CAA. The EPA cannot 
consider disapproving a SIP submission or require any changes based on 
the March 28, 2017, executive order.

VII. What action is EPA taking?

    EPA is taking final action to amend the Kansas SIP and CAA 112(l) 
program by approving the State's request to amend K.A.R. 28-19-300 
Construction Permits and Approvals--Applicability and to amend the 
Kansas SIP by approving K.A.R. 28-19-304 Construction Permits and 
Approvals--Fees. Approval of these revisions will ensure consistency 
between State and federally approved rules. EPA has determined that 
these changes will not adversely impact air quality.

VIII. Incorporation by Reference

    In this document, EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with the requirements of 1 
CFR 51.5, EPA is finalizing the incorporation by reference of the 
Kansas Regulations described in the amendments to 40 CFR part 52 set 
forth below. EPA has made, and will continue to make, these materials 
generally available through www.regulations.gov and at the EPA Region 7 
Office (please contact the person identified in the FOR FURTHER 
INFORMATION CONTACT section of this preamble for more information).
    Therefore, these materials have been approved by EPA for inclusion 
in the State implementation plan, have been incorporated by reference 
by EPA into that plan, are fully federally enforceable under sections 
110 and 113 of the CAA as of the effective date of the final rulemaking 
of EPA's approval, and will be incorporated by reference in the next 
update to the SIP compilation.\15\
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    \15\ 62 FR 27968 (May 22, 1997).

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[[Page 49831]]

IX. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act 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 action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866.
     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 the National Technology 
Transfer and Advancement Act (NTTA) because this rulemaking does not 
involve technical standards; 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, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications and will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
    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 December 3, 2018. 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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: September 26, 2018.
James B. Gulliford,
Regional Administrator, Region 7.

    For the reasons stated in the preamble, EPA amends 40 CFR part 52 
as set forth below:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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. Amend Sec.  52.870 by revising the table entries in paragraph (c) 
for ``K.A.R. 28-19-300'' and ``K.A.R 28-19-304'' to read as follows:


Sec.  52.870   Identification of plan.

* * * * *
    (c) * * *

                                                             EPA-Approved Kansas Regulations
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                State
          Kansas citation                   Title          effective date             EPA approval date                         Explanation
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                       Kansas Department of Health and Environment
                                                 Ambient Air Quality Standards and Air Pollution Control
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                           Construction Permits and Approvals
--------------------------------------------------------------------------------------------------------------------------------------------------------
K.A.R. 28-19-300..................  Applicability........      11/18/2016  11/3/2018, [Insert Federal Register     .....................................
                                                                            citation].
 
                                                                      * * * * * * *
K.A.R. 28-19-304..................  Fees.................      11/18/2016  11/3/2018, [Insert Federal Register     .....................................
                                                                            citation].
 

[[Page 49832]]

 
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[FR Doc. 2018-21434 Filed 10-2-18; 8:45 am]
BILLING CODE 6560-50-P