[Federal Register Volume 61, Number 192 (Wednesday, October 2, 1996)]
[Rules and Regulations]
[Pages 51366-51368]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24528]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[KS 008-1008(a); FRL-5556-8]
Approval and Promulgation of Implementation Plans; State of
Kansas
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: By this action the EPA gives full approval to the State
Implementation Plan (SIP) submitted by the state of Kansas for the
purpose of fulfilling the requirements set forth in the EPA's General
Conformity rule. The SIP was submitted by the state to satisfy the
Federal requirements in 40 CFR 51.852 and 93.151. Additionally, the EPA
is approving in the SIP revisions to the state's open burning rules.
SIP approval of revised state rules ensures that the SIP is current and
permits Federal enforceability of the state rules.
DATES: This action is effective December 2, 1996 unless by November 1,
1996 adverse or critical comments are received.
ADDRESSES: Copies of the documents relevant to this action are
available for public inspection during normal business hours at the:
Environmental Protection Agency, Air Planning and Development Branch,
726 Minnesota Avenue, Kansas City, Kansas 66101; and the EPA Air &
Radiation Docket and Information Center, 401 M Street, SW., Washington,
DC 20460.
FOR FURTHER INFORMATION CONTACT: Wayne Kaiser at (913) 551-7603.
SUPPLEMENTARY INFORMATION:
General Conformity
Section 176(c) of the Clean Air Act (CAA), as amended (the Act),
requires the EPA to promulgate criteria and procedures for
demonstrating and ensuring conformity of Federal actions to an
applicable implementation plan developed pursuant to section 110 and
Part D of the Act. Conformity to a SIP is defined in the Act as meaning
conformity to an SIP's purpose of eliminating or reducing the severity
and number of violations of the National Ambient Air Quality Standards,
and achieving expeditious attainment of such standards. The Federal
agency responsible for the action is required to determine if its
actions conform to the applicable SIP. On November 30, 1993, the EPA
promulgated the final rule (hereafter referred to as the General
Conformity rule), which establishes the criteria and procedures
governing the determination of conformity for all Federal actions,
except Federal highway and transit actions.
The General Conformity rule also establishes the criteria for the
EPA approval of SIPs. See 40 CFR 51.851 and 93.151. These criteria
provide that the state provisions must be at least as stringent as the
requirements specified in the EPA's General Conformity rule, and that
they can be more stringent only if they apply equally to Federal and
nonfederal entities (section 51.851(b)).
On June 23, 1992, the EPA promulgated the Kansas City ozone
redesignation and maintenance plan for Wyandotte and Johnson counties
in Kansas, and three adjoining counties in Missouri. Section 51.851 and
section
[[Page 51367]]
93.151 of the General Conformity rule require that states submit a SIP
revision containing the criteria and procedures for assessing the
conformity of Federal actions to the applicable SIP, within 12 months
after November 30, 1993. As the rule applies to all nonattainment areas
and maintenance areas, a SIP revision which addresses the requirements
of the General Conformity rule became due on November 30, 1994.
On June 6, 1996, the state of Kansas submitted a SIP revision
meeting the requirements of sections 51.851 and 93.151 of the General
Conformity rule. The submission adopts by reference 40 CFR 93, subpart
B, except 40 CFR 93.151. The omitted section contains the criteria for
the EPA approval of General Conformity SIP revisions, and also states
the effect of the EPA approval of a SIP revision. It is not a necessary
component of the state's substantive rules governing general conformity
determinations.
The Kansas rule also does not adopt paragraph 40 CFR 93.160(f),
which states that written commitments to mitigation measures must be
obtained prior to a positive conformity determination and that such
commitments must be fulfilled. However, these requirements are
contained in paragraph 93.160(b), which the state did adopt, so its
omission is not significant.
This SIP revision was adopted by the Secretary of the Kansas
Department of Health and Environment on February 21, 1996, and became
effective on March 15, 1996.
Because the Kansas rule adopts the substantive requirements of the
EPA's rule by reference, it meets the criteria in sections 51.851 and
93.151 for approval of General Conformity SIP revisions.
Open Burning Rules
The state revised its open burning regulations by revoking old
rules and adopting similar renumbered, revised rules. One significant
change was separating out the requirements for agricultural open
burning as a separate rule in K.A.R. 28-19-648. Substantative change to
the agricultural open burning rule includes more stringent conditions
under which open burning can be approved by local authorities, and
authorizing local authorities to adopt additional restrictions or
requirements deemed appropriate. The state retains the authority to
enforce the rule. The revisions provide added health and environmental
protection.
EPA ACTION: By this action the EPA grants full approval of Kansas' June
6, 1996, submittal. This SIP revision meets all of the requirements set
forth in 40 CFR 51.851 and 93.151, and Part 51.
The EPA is publishing this action without prior proposal because
the Agency views this as a noncontroversial amendment and anticipates
no adverse comments. However, in a separate document in the Federal
Register publication, the EPA is proposing to approve the SIP revision
should adverse or critical comments be filed.
If the EPA receives such comments, this action will be withdrawn
before the effective date by publishing a subsequent notice that will
withdraw the final action. All public comments received will then be
addressed in a subsequent final rule, based on this action serving as a
proposed rule. The EPA will not institute a second comment period on
this action. Any parties interested in commenting on this action should
do so at this time.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any SIP. Each request for revision to the SIP shall be
considered separately in light of specific technical, economic, and
environmental factors, and in relation to relevant statutory and
regulatory requirements.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., the EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities (5 U.S.C. 603 and 604).
Alternatively, the EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
SIP approvals under section 110 and subchapter I, Part D of the CAA
do not create any new requirements, but simply approve requirements
that the state is already imposing. Therefore, because the Federal SIP
approval does not impose any new requirements, the EPA certifies that
it does not have a significant impact on any small entities affected.
Moreover, due to the nature of the Federal-state relationship under the
CAA, preparation of a regulatory flexibility analysis would constitute
Federal inquiry into the economic reasonableness of state action. The
CAA forbids the EPA to base its actions concerning SIPs on such grounds
(Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976);
42 U.S.C. 7410(a)(2)).
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995, memorandum from Mary Nichols, Assistant Administrator
for Air and Radiation. The Office of Management and Budget has exempted
this regulatory action from E.O. 12866 review.
Unfunded Mandates
Under sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,
1995, the EPA must undertake various actions in association with
proposed or final rules that include a Federal mandate that may result
in estimated costs of $100 million or more to the private sector, or to
state, local, or tribal governments in the aggregate.
Through submission of this SIP, the state has elected to adopt the
program provided for under section 110 of the CAA. These rules may bind
state and local governments to perform certain actions and also require
the private sector to perform certain duties. To the extent that the
rules being finalized for approval by this action will impose new
requirements, sources are already subject to these regulations under
state law. Accordingly, no additional costs to state or local
governments, or to the private sector, result from this final action.
The EPA has also determined that this final action does not include a
mandate that may result in estimated costs of $100 million or more to
state or local governments in the aggregate or to the private sector.
The EPA has determined that these rules result in no additional costs
to tribal government.
Under section 801(a)(1)(A) of the Administrative Procedure Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996, the EPA submitted a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the General Accounting
Office prior to publication of the rule in today's Federal Register.
This rule is not a ``major rule'' as defined by section 804(2) of the
APA as amended.
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 2, 1996. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review, nor does
it extend the time within which a petition for judicial review may be
filed, and shall not postpone the effectiveness of
[[Page 51368]]
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, Lead, Ozone, Particulate
matter, Reporting and recordkeeping requirements.
Dated: August 2, 1996.
William Rice,
Acting Regional Administrator.
Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart CC--Kansas
2. Section 52.870 is amended by adding paragraph (c)(32) to read as
follows:
Sec. 52.870 Identification of plan.
* * * * *
(c) * * *
(32) A Plan revision was submitted by the Kansas Department of
Health and Environment (KDHE) on June 6, 1996, which incorporates by
reference the EPA's regulations relating to determining conformity of
general Federal actions to State or Federal Implementation Plans, and
which revokes old and adopts new open burning regulations.
(i) Incorporation by reference.
(A) Regulation K.A.R. 28-19-800, adopted by the Secretary of the
KDHE on February 21, 1996, effective March 15, 1996.
(B) Regulations K.A.R. 28-19-645 to K.A.R. 28-19-648, adopted by
the Secretary of KDHE on February 6, 1996, effective March 1, 1996.
(C) Regulations K.A.R. 28-19-45 to K.A.R. 28-19-47, revoked by the
Secretary of KDHE on February 6, 1996, effective March 1, 1996.
[FR Doc. 96-24528 Filed 10-1-96; 8:45 am]
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