E8-2189. Approval and Promulgation of Implementation Plans and Operating Permits Program; State of Kansas

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is approving a revision to the Kansas State Implementation Plan (SIP) for the purpose of revoking the Sulfur Compound Emissions rule and for the purpose of approving revisions to the Class I major source operating permit annual emissions inventory rule and several Class II minor source operating permits rules.

EPA is also approving an additional submittal by the State of Kansas pertaining to amendments of the Class II operating permit rules which were amended by the Kansas Department of Health and Environment (KDHE) on February 20, 1998, but had not previously been submitted for EPA approval. In addition, EPA is approving a revision to the Class II operating permit rules adopted in 2005. The Class II operating permit rules were primarily revised to align the annual emission inventory reporting date deadline with the June 1 payment of Annual Emissions Fee rule.

EPA approval will ensure consistency between the state and the Federally-approved rules.

DATES:

This direct final rule will be effective April 8, 2008, without further notice, unless EPA receives adverse comment by March 10, 2008. If adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R07-OAR-2007-0829, by one of the following methods:

1. http://www.regulations.gov. Follow the on-line instructions for submitting comments.

2. E-mail: [e-mail].

3. Mail: Gina Grier, Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101.

4. Hand Delivery or Courier. Deliver your comments to Gina Grier, Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101.

Instructions: Direct your comments to Docket ID No. EPA-R07-OAR-2007-0829. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit through http://www.regulations.gov or e-mail information that you consider to be CBI or otherwise protected. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through http://www.regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket: All documents in the electronic docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101. The Regional Office's official hours of business are Monday through Friday, 8 to 4:30 excluding Federal holidays. The interested persons wanting to examine these documents should make an appointment with the office at least 24 hours in advance.

FOR FURTHER INFORMATION CONTACT:

Gina Grier at [phone] or by e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This section provides additional information by addressing the following questions:

What is a SIP?

What is the Federal approval process for a SIP?

What does Federal approval of a state regulation mean to me?

What is the Part 70 operating permits program?

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

What is being addressed in this document?

Have the requirements for approval of a SIP revision and a Part 70 revision been met?

What action is EPA taking?

What is a SIP?

Section 110 of the Clean Air Act (CAA) requires states to develop air pollution regulations and control strategies to ensure that state air quality meets the national ambient air quality standards established by EPA. These ambient standards are established under section 109 of the CAA, and they currently address six criteria pollutants. These pollutants are: carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide.

Each state must submit these regulations and control strategies to us for approval and incorporation into the Federally-enforceable SIP.

Each Federally-approved SIP protects air quality primarily by addressing air pollution at its point of origin. These SIPs can be extensive, containing state regulations or other enforceable documents and supporting information such as emission inventories, monitoring networks, and modeling demonstrations.

What is the Federal approval process for a SIP?

In order for state regulations to be incorporated into the Federally-enforceable SIP, states must formally adopt the regulations and control strategies consistent with state and Federal requirements. This process generally includes a public notice, public hearing, public comment period, and a formal adoption by a state-authorized rulemaking body.

Once a state rule, regulation, or control strategy is adopted, the state submits it to us for inclusion into the SIP. We must provide public notice and seek additional public comment regarding the proposed Federal action on the state submission. If adverse comments are received, they must be addressed prior to any final Federal action by us.

All state regulations and supporting information approved by EPA under section 110 of the CAA are incorporated into the Federally-approved SIP. Records of such SIP actions are maintained in the Code of Federal Regulations (CFR) at title 40, part 52, entitled “Approval and Promulgation of Implementation Plans.” The actual state regulations which are approved are not reproduced in their entirety in the CFR outright but are “incorporated by reference,” which means that we have approved a given state regulation with a specific effective date.

What does Federal approval of a state regulation mean to me?

Enforcement of the state regulation before and after it is incorporated into the Federally-approved SIP is primarily a state responsibility. However, after the regulation is Federally approved, we are authorized to take enforcement action against violators. Citizens are also offered legal recourse to address violations as described in section 304 of the CAA.

What is the Part 70 operating permits program?

The CAA Amendments of 1990 require all states to develop operating permits programs that meet certain Federal criteria. In implementing this program, the states are to require certain sources of air pollution to obtain permits that contain all applicable requirements under the CAA. One purpose of the part 70 operating permits program is to improve enforcement by issuing each source a single permit that consolidates all of the applicable CAA requirements into a Federally-enforceable document. By consolidating all of the applicable requirements for a facility into one document, the source, the public, and the permitting authorities can more easily determine what CAA requirements apply and how compliance with those requirements is determined.

Sources required to obtain an operating permit under this program include “major” sources of air pollution and certain other sources specified in the CAA or in our implementing regulations. For example, all sources regulated under the acid rain program, regardless of size, must obtain permits. Examples of major sources include those that emit 100 tons per year or more of volatile organic compounds, carbon monoxide, lead, sulfur dioxide, nitrogen dioxide, or PM₁₀; those that emit 10 tons per year of any single hazardous air pollutant (HAP) (specifically listed under the CAA); or those that emit 25 tons per year or more of a combination of HAPs.

Revisions to the state operating permits program are also subject to public notice, comment, and our approval.

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

In order for state regulations to be included in the Federally-enforceable Title V operating permits program, states must formally adopt regulations consistent with state and Federal requirements. This process generally includes a public notice, public hearing, public comment period, and a formal adoption by a state-authorized rulemaking body.

Once a state rule, regulation, or control strategy is adopted, the state submits it to us for inclusion into the approved operating permits program. We must provide public notice and seek additional public comment regarding the proposed Federal action on the state submission. If adverse comments are received, they must be addressed prior to any final Federal action by us.

All state regulations and supporting information approved by EPA under section 502 of the CAA, including revisions to the state program, are included in the Federally-approved operating permits program. Records of such actions are maintained in the CFR at Title 40, part 70, appendix A, entitled “Approval Status of State and Local Operating Permits Programs.”

What is being addressed in this document?

Revocation of Sulfur Compounds Emissions Rule

EPA is approving the revocation of the Kansas for Sulfur Compound Emissions rule, K.A.R. 28-19-22. The rule, which is related to emissions of sulfur compounds, and was originally adopted in 1972, established limitations for sulfur oxides emissions from primary nonferrous (i.e., lead and zinc) smelters, and prohibited emission or combustion of process gas streams (such as those found at petroleum refineries) containing hydrogen sulfide above the specified limits. Subsequent to the adoption of this rule and its inclusion into the SIP, the lead and zinc smelters in Kansas subject to this rule have ceased to operate, and refineries once potentially subject to this rule are now subject to more stringent requirements for sulfur emissions under the new source performance standards (NSPS).

The Kansas Department of Health and Environment has determined that the sulfur rule may be revoked without adverse impact on air quality.

EPA's review of the material submitted indicates the state has amended the air quality rules in accordance with the requirements of the Clean Air Act. State action to revoke the sulfur rule and to change the inventory regulations does not impair its ability to protect the NAAQS. Language in both 1998 and 2005 permit-by-rule revisions was clarified and rearranged but there were no substantive changes of the requirements. We have reviewed the information submitted by Kansas in support of this determination and agree with this conclusion.

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

Six of the regulations proposed for amendment consist of the operating permit regulations principally concerning the emission inventory requirements, and permit-by-rules which include a due date for inventory submittals. The time for filing the reports was set in the 1998 amendments as June 1 of each year.

In the 2005 revisions for Class II permit-by-rule regulations, K.A.R. 28-19-561 through 28-19-563, changes were made so that these rules were consistent with the provisions of the Class II inventory regulation, K.A.R. 28-19-546. (i.e., instead of specifying the due date in the permit-by-rule regulations, the regulations will now reference the date set by K.A.R. 28-19-546, so that only one rule will require revision to accomplish the change.) This reference changed the submittal date back to April 1 of each year, to decrease the short-term surge of combined Class I and Class II submittals and alleviate the workload for KDHE staff.

The 2005 revision to K.A.R. 28-19-517, annual emissions inventories for the Class I operating permits clarifies that under the circumstance that June 1 falls on a weekend or holiday, the deadline for application submittal will fall on the next business day (Title V).

The 2005 revision to K.A.R. 28-19-542, reporting requirements for sources operating under a permit-by-rule has been updated to cross-reference a recently adopted permit-by-rule, K.A.R. 28-19-564. EPA previously approved rule K.A.R. 28-19-564 (SIP).

In the 1998 revision, K.A.R. 28-19-546, annual emission inventory, requirements for Class II operating permits was amended to change the annual emissions inventory reporting date for owners and operators of stationary sources operating under Class II operating permits from April 1 to June 1, to comply with the change in the payment date from April 1 to June 1 (SIP). The 2005 revision was revised to modify the date from June 1 back to April 1. The rule also clarified that if April 1 falls on a weekend or holiday, the deadline for application submittal will fall on the next business day (SIP).

The 1998 revision to K.A.R. 28-19-561, reciprocating engines under a permit-by-rule, was amended to change the annual emissions inventory reporting date for owners and operators of stationary sources operating under Class II operating permits from April 1 to June 1, and include language to define the time period requirements for record retention. K.A.R. 28-19-546 was revised to change the date back to April 1 and additional amendments were made to clarify that the requirements to develop compliance plans are not triggered by paperwork violations, but only by the operation of a source at a level exceeding the defined levels of the regulation (SIP).

In the 2005 revision to K.A.R. 28-19-561, reciprocating engines, K.A.R. 28-19-546 was referenced and changes stipulate that the requirements will apply to stationary reciprocating engines with a capacity equal to or greater than 730 horsepower, 550 kilowatts, or 5.1 million Btu per hour fuel input. A source with less capacity shall be presumed to have a potential-to-emit less than 100 tons of regulated pollutant per year (SIP).

In the 1998 revisions for K.A.R. 28-19-562, organic solvent evaporative sources under a permit-by-rule, was amended to change the annual emissions inventory reporting date for owners and operators of stationary sources operating under Class II operating permits from April 1, to June 1, and include language to define the time period requirements for record retention (SIP). In the 2005 revisions, K.A.R. 28-19-562, organic solvent evaporative sources order was rearranged, but the emission levels and requirements of the rule were retained (SIP). K.A.R. 28-19-546 was also referenced.

In the revisions for 1998 K.A.R. 28-19-563, hot asphalt facilities permit-by-rule was amended to change the annual emissions inventory reporting date for owners and operators of stationary sources operating under Class II operating permits from April 1, to June 1, and include language to define the time period requirements for record retention (SIP). In the 2005 revisions, K.A.R. 28-19-546 was revised to change the date submittal back to April 1 and the rule was rearranged, but the emission levels and requirements of the rule were retained (SIP).

The 2005 revisions for Class II permit-by-rule regulations were changed to make these rules consistent with the provisions of the Class II inventory regulation. Grammatical revisions are also proposed to better conform to the Department of Administration's requirements.

While not a part of the SIP, and therefore not a component of this SIP revision, it should be noted that the Class III operating permit regulations (K.A.R. 28-19-575 through 578) were also revoked and the revocation was part of the same hearing as for these SIP regulations.

Have the requirements for approval of a SIP revision and a Part 70 revision been met?

The state submittal has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submittal also satisfied the completeness criteria or 40 CFR part 51, appendix V. In addition, as explained above and in more detail in the Technical Support Document that is part of this docket, the revisions meet the substantive SIP requirements of the CAA, including section 110 and implementing regulations. Finally, the submittal met the substantive requirements of Title V of the 1990 CAA Amendments and 40 CFR part 70.

EPA's review of the material submitted indicates the state has amended the air quality rules in accordance with the requirements of the Clean Air Act. Revisions to revoke the sulfur rule and to change the inventory regulations do not interfere with attainment of the NAAQS. Language in the permit-by-rule revisions was rearranged but had no substantive changes of the requirements.

What action is EPA taking?

We are processing this action on the State's amendments to the SIP approved rules and the 40 CFR part 70 operating permit program as a direct final action because the revisions make routine changes to the existing rules which are noncontroversial. Therefore, we do not anticipate any adverse comments. Please note that if EPA receives adverse comment on part of this rule and if that part can be severed from the remainder of the rule, EPA may adopt as final those parts of the rule that are not the subject of an adverse comment.

Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard.

In reviewing SIP and Title V submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 8, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects

40 CFR Part 52

• Environmental protection
• Air pollution control
• Carbon monoxide
• Incorporation by reference
• Intergovernmental relations
• Lead
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides
• Volatile organic compounds

40 CFR Part 70

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

Dated: January 28, 2008.

John B. Askew,

Regional Administrator, Region 7.

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 et seq.

Subpart R—Kansas

2. In § 52.870 the table in paragraph (c) is amended by:

a. Removing the entry for K.A.R. 28-19-22 under Processing Operation Emissions;

b. Revising the entries for K.A.R. 28-19-542; 28-19-546, 28-19-561; 28-19-562 and 28-19-563 to read as follows:

§ 52.820

Identification of plan.

* * * * *

(c) * * *

EPA-Approved Kansas Regulations

Kansas citation	Title	State effective date	EPA approval date	Explanation
Kansas Department of Health and Environment Ambient Air Quality Standards and Air Pollution Control
*         *         *         *         *         *         *
Class II Operating Permits
*         *         *         *         *         *         *
K.A.R. 28-19-542	Permit-By-Rule	09/23/2005	02/08/2008 [insert FR page number where the document begins]
Kansas Department of Health and Environment Ambient Air Quality Standards and Air Pollution Control
*         *         *         *         *         *         *
K.A.R. 28-19-546	Annual Emission Inventory	09/23/2005	02/08/2008 [insert FR page number where the document begins]
K.A.R. 28-19-561	Permit-by-Rule; Reciprocating Engines	09/23/2005	02/08/2008 [insert FR page number where the document begins]
K.A.R. 28-19-562	Permit-by-Rule; Organic Solvent Evaporative Sources	09/23/2005	02/08/2008 [insert FR page number where the document begins]
K.A.R. 28-19-563	Permit-by-Rule; Hot Mix Asphalt Facilities	09/23/2005	02/08/2008 [insert FR page number where the document begins]
*         *         *         *         *         *         *

* * * * *

PART 70—[AMENDED]

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

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

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

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

* * * * *

Kansas

* * * * *

(d) The Kansas Department of Health and Environment submitted for program approval rule K.A.R. 28-19-517 on January 27, 2006. The state effective date was September 23, 2005. This revision to the Kansas program is approved effective April 8, 2008.

* * * * *