95-16277. Clean Air Act Proposed Full Approval of Operating Permits Program; State of Kansas, and Delegation of 112(l) Authority  

  • [Federal Register Volume 60, Number 127 (Monday, July 3, 1995)]
    [Proposed Rules]
    [Pages 34493-34497]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 95-16277]
    
    
    
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    ENVIRONMENTAL PROTECTION AGENCY
    40 CFR Part 70
    
    [KS-001; AD-FRL-5252-2]
    
    
    Clean Air Act Proposed Full Approval of Operating Permits 
    Program; State of Kansas, and Delegation of 112(l) Authority
    
    AGENCY: Environmental Protection Agency (EPA).
    
    ACTION: Proposed full approval.
    
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    SUMMARY: The EPA proposes full approval of the Operating Permits 
    Program submitted by the state of Kansas, for the purpose of complying 
    with Federal requirements for states which develop, and submit to EPA, 
    programs for issuing operating permits to all major stationary sources 
    and to certain other sources. This notice explains EPA's rationale for 
    the proposed action, and identifies several revisions to the program 
    which must be made before EPA can take final action to approve it.
    
    
    [[Page 34494]]
    
    DATES: Comments on this proposed action must be received in writing by 
    August 2, 1995.
    
    ADDRESSES: Comments should be addressed to Wayne A. Kaiser at the 
    address below. Copies of the Kansas submittal and other supporting 
    information used in developing the proposed rule are available for 
    inspection at the U.S. Environmental Protection Agency, Region VII, Air 
    Branch, 726 Minnesota Avenue, Kansas City, Kansas 66101.
    
    FOR FURTHER INFORMATION CONTACT: Wayne A. Kaiser at (913) 551-7603.
    
    SUPPLEMENTARY INFORMATION:
    
    I. Background and Purpose
    
    A. Introduction
    
        As required under Title V of the Clean Air Act (the Act'') as 
    amended (1990), EPA has promulgated rules which define the minimum 
    elements of an approvable state operating permits program, and the 
    corresponding standards and procedures by which the EPA will approve, 
    oversee, and withdraw approval of state operating permits programs (see 
    57 FR 32250 (July 21, 1992)). These rules are codified at 40 Code of 
    Federal Regulations (CFR) part 70. Title V requires states to develop, 
    and submit to EPA, programs for issuing these operating permits to all 
    major stationary sources and to certain other sources.
        The Act requires that states develop and submit these programs to 
    EPA by November 15, 1993, and that EPA act to approve or disapprove 
    each program within one year after receiving the submittal. The EPA's 
    program review occurs pursuant to section 502 of the Act and the part 
    70 regulations, which together outline criteria for approval or 
    disapproval. Where a program substantially, but not fully, meets the 
    requirements of part 70, EPA may grant the program interim approval for 
    a period of up to two years. If EPA has not fully approved a program by 
    two years after the November 15, 1993, date, or by the end of an 
    interim period, it must establish and implement a Federal program.
    
    II. Proposed Action and Implications
    
    A. Analysis of Submission by State Authority
    
    1. Support Materials
        The Governor of Kansas submitted an administratively and 
    technically complete Title V Operating permit program on December 12, 
    1994. EPA deemed the program submittal complete in a letter to the 
    governor on January 26, 1995. Comments noting deficiencies in the 
    Kansas program were sent to the state in a letter dated February 22, 
    1995. The state responded in letters dated April 7 and April 17, 1995.
        The program submittal includes a legal opinion from the Attorney 
    General of Kansas stating that the laws of the state provide adequate 
    legal authority to carry out all aspects of the program, and a 
    description of how the state intends to implement the program. The 
    submittal additionally contains evidence of proper adoption of the 
    program regulations, permit application forms, a data management 
    system, and a permit fee demonstration.
    2. Program Description
        The Governor's letter states that the entire geography of Kansas 
    will be covered by this program and that the state will not administer 
    the program on any Indian lands. EPA will administer the Title V 
    program on Indian lands in Kansas. The letter also states that the 
    Kansas Department of Health and Environment (KDHE) will be the official 
    permitting authority responsible for implementation of the program. 
    Finally, the letter requests approval and delegation of authority to 
    implement section 112(l) of the Act.
        In addition to the state's class I Title V permit rules, the state 
    is establishing a State Implementation Plan (SIP) based permit system 
    for creating Federally enforceable limitations, called the class II 
    permit. This permit mechanism will allow sources to avoid having to 
    obtain a part 70 operating permit. Finally, the state is requiring all 
    air emission sources not qualifying for a class I or class II permit to 
    obtain a class III permit.
        The state has been collecting emission fees for two years, which 
    have been used for ``ramp-up'' activities, including the hiring of 
    additional staff and funding of a Small Business Assistance Program. 
    The state provided a resource demonstration, discussed later, to 
    justify deviating from the presumptive minimum of $25 per ton, Consumer 
    Price Index (CPI) adjusted. The state is also authorized to collect 
    fees for non-Title V program activities.
    3. Regulations and Program Implementation
        Except as noted below, the state submittal, including the core 
    operating permit regulations (Kansas Administrative Regulations 
    (K.A.R.) 28-19-500 through 518), meets the requirements of 40 CFR 70.2 
    and 70.3 with respect to applicability; 40 CFR 70.4, 70.5, and 70.6 
    with respect to permit content including operational flexibility; 40 
    CFR 70.5 with respect to complete application forms and criteria which 
    define insignificant activities; 40 CFR 70.7 with respect to public 
    participation and minor permit modifications; and 40 CFR 70.11 with 
    respect to requirements for enforcement authority.
        Areas in which the Kansas program is deficient and corrective 
    action is required prior to full approval are discussed below. Although 
    failure to correct the program would require EPA to disapprove it, 
    Kansas has indicated that it can make the required changes and submit 
    them to EPA. Readers may refer to the Technical Support Document (TSD) 
    accompanying this rulemaking for a detailed explanation of each comment 
    and the corrective actions required of the state.
        a. Rule revisions. K.A.R. 28-19-7, General provisions; definitions. 
    The state definition of applicable requirement as presently written 
    requires that an SIP or Federal Implementation Plan requirement must be 
    part of the Kansas air quality regulations. The state has SIP 
    requirements, such as source-specific permits, and local agency air 
    regulations, which are applicable requirements but are not in the 
    Kansas air quality regulations. The state has committed to revise 
    K.A.R. 28-19-7(e)(1) to remove this restriction.
        Secondly, the applicable requirement definition does not include 
    construction permits issued pursuant to rules K.A.R. 28-19-300, and its 
    predecessor, K.A.R. 28-19-14. The state has committed to add a 
    paragraph (e)(2)(D) to the definition of applicable requirement to 
    correct this omission. These revisions are necessary to meet EPA's 
    definition of applicable requirement in 70.2.
        K.A.R. 28-19-511. Class I operating permits; application contents. 
    Paragraph (b) details information which must be included in a permit 
    application. This paragraph must be revised in three areas. First, 
    511(b)(3) must be revised to clarify that fugitive emissions of 
    regulated pollutants must be included in the permit application. 
    Second, 511(b)(3)(A) must be revised to clarify that the state 
    maintains a list of insignificant activities which does not need to be 
    included on the application form. The state has decided to remove this 
    list from the application forms but maintain it separately. The state 
    must also submit its list of insignificant activities to EPA for 
    approval. And third, 511(b)(16) must be revised to clarify that 
    compliance plans apply to all sources. As written, the rule could be 
    read to apply only to acid rain sources. These revisions are necessary 
    to meet the requirements for applications for 
    
    [[Page 34495]]
    Title V permits in 70.3(d), 70.5(c), 70.5(c)(2), and 70.4(c)(8).
        K.A.R. 28-19-512. Class I operating permits; permit content. Rule 
    512(a)(7) requires that ``where a permit contains an emission 
    limitation which is an alternative to an emission limitations contained 
    in'' the SIP, the alternative meet certain requirements. Unlike 
    70.6(a)(1)(iii), this provision is not qualified by the statement that 
    the SIP must expressly allow for alternative limits. The state has 
    committed to revise its rule to meet this requirement. Rule 512(a)(18), 
    pertaining to the terms and conditions for trading of emissions, does 
    not require the source to provide the state and EPA with a seven-day 
    notice as required by 70.4(b)(12)(iii). The state has committed to 
    revise its rule to meet this requirement.
        K.A.R. 28-19-518. Class I operating permits; complete applications. 
    Rule 518(a) does not contain a requirement, consistent with 70.7(b)(1), 
    that an application be both ``timely'' filed and complete. The state 
    has committed to revise this rule to include the ``timely'' component. 
    Secondly, rule 518(b), pertaining to the determination of a complete 
    application, does not specify what must be included in a permit 
    application in order to be deemed complete. The state has committed to 
    add a statement to the effect that a complete application is one which 
    substantially complies with the requirements of K.A.R. 28-19-511, Class 
    I operating permits; application contents.
    3. Other issues
        K.A.R. 28-19-510. Class I operating permits; application timetable. 
    This rule requires a complete and timely application to be submitted 
    not later than the date specified by the KDHE, as published in the 
    Kansas Register, on which the source becomes subject to the permitting 
    program, and for sources operational at the time of the effective date 
    of the operating permit program, no later than the date specified by 
    the KDHE as published in the Kansas Register.
        As a practical matter, Kansas will be notified by EPA as soon as 
    the anticipated date of publication of program approval in the Federal 
    Register becomes known. Kansas has committed to publishing its 
    application schedule in the Kansas Register within the 30-day period 
    preceding the effective date of the program. Thus, the state will have 
    the full year in which to receive applications. Kansas has provided a 
    sample Kansas Register notice which contains the draft application 
    schedule. Kansas plans to request applications in a staggered, three-
    tiered, SIC code-based approach, which ensures that all applications 
    are received within one year of program approval pursuant to 70.5(a). 
    EPA concurs with this approach.
        K.A.R. 28-19-513. Class I operating permits; permit amendment, 
    modification, or reopening and changes not requiring a permit action. 
    70.7(d)(1)(v) states that part 70 permit revisions which incorporate 
    the provisions of preconstruction permits may be accomplished through 
    the administrative amendment process, but only if the preconstruction 
    permit is issued under an EPA-approved program covering the relevant 
    procedural requirements substantially similar to those in part 70. 
    K.A.R. 28-19-513(a)(1)(E) includes a similar provision. However, the 
    Kansas preconstruction program does not contain procedures 
    substantially similar to the relevant part 70 procedures and has not 
    been approved by EPA. The Kansas Attorney General, in his April 7, 
    1995, supplemental opinion, has stated that the K.A.R. 513(a)(1)(E) 
    provision cannot be used to administratively amend permits, until EPA 
    approves revisions to the Kansas New Source Review program 
    incorporating the relevant part 70 procedural requirements. Therefore, 
    EPA believes this provision is approvable. Implementation Agreement 
    (I.A.)
        The state has elected to include in an I.A., rather than 
    regulation, time lines for state action on a number of provisions 
    relating to permit processing. EPA believes that since most of the 
    deadlines to be established in the I.A. are for the benefit of EPA, the 
    deadlines may be in the I.A. rather than the regulation.
        The state has committed to a schedule for adopting and submitting 
    the required rule revisions, for submitting its insignificant 
    activities list to EPA for approval, and has committed to finalizing an 
    I.A. with EPA which contains certain commitments and information which 
    EPA considers necessary for approval. If the state revises the 
    submission to correct the deficiencies as described in this notice and 
    no other program deficiencies are identified during the comment period 
    which preclude full approval, EPA's final action will be one of full 
    approval. Otherwise, EPA will confer disapproval.
    4. Fee Demonstration
        The state provided a detailed fee demonstration because the 
    emissions fee, $20 per ton, is below the presumptive minimum of $25 
    plus CPI. The KDHE provided a list of sources and the estimated actual 
    and potential emissions from each source with a projected total 
    revenue. This estimate adequately covers the program's anticipated 
    operating costs if the $20 fee is maintained. If this fee is reduced, 
    an additional demonstration will be required. A four-year estimate of 
    resources and costs was also submitted. The state has provided for 
    separate cost accounting procedures to ensure that fees collected are 
    used solely for the part 70 program. The state commits to conducting 
    periodic auditing reports and providing copies to EPA.
    5. Provisions Implementing the Requirements of Other Titles of the Act
        a. Authority and/or commitments for section 112 implementation. 
    Kansas has demonstrated in its program submittal adequate legal 
    authority to implement and enforce all section 112 requirements through 
    the Title V permit.
        This legal authority is contained in Kansas' enabling legislation 
    and in regulatory provisions defining ``applicable requirements,'' and 
    states that the permit must incorporate all applicable requirements. 
    EPA has determined that this legal authority is sufficient to allow 
    Kansas to issue permits that ensure compliance with all section 112 
    requirements. EPA is interpreting the above legal authority to mean 
    that Kansas is able to carry out all section 112 activities. For 
    further rationale on this interpretation, please refer to the TSD 
    accompanying this rulemaking and the April 13, 1993, guidance 
    memorandum titled ``Title V Program Approval Criteria for Section 112 
    Activities,'' signed by John Seitz.
        b. Section 112 (g)--Case-by-Case Maximum Achievable Control 
    Technology (MACT) For Modified/Constructed and Reconstructed Major 
    Toxic Sources. The EPA issued an interpretive notice on February 14, 
    1995 (60 FR 8333), which outlines EPA's revised interpretation of 
    112(g) applicability. The notice postpones the effective date of 112(g) 
    until after EPA has promulgated a rule addressing that provision. The 
    notice sets forth in detail the rationale for the revised 
    interpretation.
        The section 112(g) interpretive notice explains that EPA is still 
    considering whether the effective date of section 112(g) should be 
    delayed beyond the date of promulgation of the Federal rule so as to 
    allow states time to adopt rules implementing the Federal rule, and 
    that EPA will provide for any such additional delay in the final 
    section 112(g) rulemaking. Unless and until EPA provides for such an 
    additional postponement of section 112(g), Kansas 
    
    [[Page 34496]]
    must have a Federally enforceable mechanism for implementing section 
    112(g) during the period between promulgation of the Federal section 
    112(g) rule and adoption of implementing Federal regulations.
        The EPA is aware that Kansas lacks a program designed specifically 
    to implement section 112(g). However, Kansas does have a program for 
    review of new and modified hazardous air pollutant sources that can 
    serve as an adequate implementation vehicle during the transition 
    period, because it would allow Kansas to select control measures that 
    would meet MACT, as defined in section 112, and incorporate these 
    measures into a Federally enforceable preconstruction permit.
        EPA is approving Kansas' preconstruction permitting program under 
    the authority of Title V and part 70, solely for the purpose of 
    implementing section 112(g) to the extent necessary during the 
    transition period between 112(g) promulgation and adoption of a state 
    rule implementing EPA's section 112(g) regulations. Although section 
    112(l) generally provides authority for approval of state air programs 
    to implement section 112(g), Title V and section 112(g) provide for 
    this limited approval because of the direct linkage between the 
    implementation of section 112(g) and Title V. The scope of this 
    approval is narrowly limited to section 112(g) and does not confer or 
    imply approval for purposes of any other provision under the Act (e.g., 
    section 110). This approval will be without effect if EPA decides in 
    the final section 112(g) rule that sources are not subject to the 
    requirements of the rule until state regulations are adopted. The 
    duration of this approval is limited to 18 months following 
    promulgation by EPA of the 112(g) rule to provide adequate time for the 
    state to adopt regulations consistent with the Federal requirements.
        c. Section 112(l)--State Air Toxics Programs. Requirements for 
    approval, specified in 40 CFR 70.4(b), encompass section 112(l)(5) 
    approval requirements for delegation of section 112 standards as 
    promulgated by EPA as they apply to part 70 sources. Section 112(l)(5) 
    requires that the state's program contain adequate authorities, 
    adequate resources for implementation, and an expeditious compliance 
    schedule, which are also requirements under part 70. Kansas has 
    demonstrated that it meets these requirements. Therefore, the EPA is 
    proposing to grant approval under section 112(l)(5) and 40 CFR 63.91 to 
    Kansas for its program mechanism for receiving delegation of all 
    existing and future section 112(d) standards for both part 70 and non-
    part 70 sources, and section 112 infrastructure programs, that are 
    unchanged from Federal rules as promulgated. Kansas has informed EPA 
    that it intends to accept delegation of section 112 standards through 
    adoption by reference. In addition, EPA is also proposing delegation of 
    all existing standards and programs under 40 CFR Parts 61 and 63 for 
    part 70 and non-part 70 sources.
        Kansas also requested that the program approval under 112(l) 
    include its pre-1990 amendments' National Emission Standard for 
    Hazardous Air Pollutants' program, and approval of its program to 
    regulate asbestos, Part 61, subpart M. Our proposed approval covers the 
    entire Kansas program under 112(l).
        d. Title IV/Acid Rain. The legal requirements for approval under 
    the Title V operating permits program for a Title IV program were cited 
    in EPA guidance distributed on May 21, 1993, titled ``Title V-Title IV 
    Interface Guidance for States.'' Kansas has met the criteria of this 
    guidance and has adopted by reference acid rain rules at 40 CFR part 
    72.
    
    B. Proposed Actions
    
    1. Full Approval
        EPA is proposing to grant full approval contingent upon: first, the 
    state adopting and submitting the revisions to: (1) K.A.R. 28-19-7, 
    General Provisions; definitions, (2) K.A.R. 28-19-511, Class I 
    operating permits; applications contents, (3) K.A.R. 28-19-512, Class I 
    operating permits; permit content, (4) K.A.R. 28-19-518, Class I 
    operating permits, complete applications; second, the state submitting 
    its insignificant activities list to EPA for approval; and third, 
    finalization of an I.A. with EPA.
    2. Program for Straight Delegation of Section 112 Standards
        As discussed above, EPA is proposing to grant approval under 
    section 112(l)(5) and 40 CFR 63.91 to Kansas for its program mechanism 
    for receiving delegation of all existing and future section 112(d) 
    standards for both part 70 and non-part 70 sources, and infrastructure 
    programs under section 112 that are unchanged from Federal rules as 
    promulgated. In addition, EPA proposes to delegate existing standards 
    under 40 CFR Parts 61 and 63 for both part 70 and non-part 70 sources.
    
    III. Administrative Requirements
    
    A. Request for Public Comments
    
        The EPA is requesting comments on all aspects of this proposed 
    rule. Copies of the state's submittal and other information relied upon 
    for the proposed approval are contained in a docket maintained at the 
    EPA Regional Office. The docket is an organized and complete file of 
    all the information submitted to, or otherwise considered by, EPA in 
    the development of this proposed rulemaking. The principal purposes of 
    the docket are:
        1. To allow interested parties a means to identify and locate 
    documents for participating in the rulemaking process, and
        2. To serve as the record in case of judicial review. The EPA will 
    consider any comments received by August 2, 1995.
    
    B. Executive Order 12866
    
        The Office of Management and Budget has exempted this regulatory 
    action from Executive Order 12866 review.
    
    C. Regulatory Flexibility Act
    
        EPA's actions under section 502 of the Act do not create any new 
    requirements, but simply address operating permits programs submitted 
    to satisfy the requirements of 40 CFR part 70. Because this action does 
    not impose any new requirements, it does not have a significant impact 
    on a substantial number of small entities.
    D. 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, 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 state operating permit program the state 
    and any affected local or tribal governments have elected to adopt the 
    program provided for under Title V of the Clean Air Act. These rules 
    may bind state, local, and tribal governments to perform certain 
    actions and also require the private sector to perform certain duties. 
    To the extent that the rules being proposed 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, 
    local, or tribal governments, or to the private sector, result from 
    this action. EPA has also 
    
    [[Page 34497]]
    determined that this proposed action does not include a mandate that 
    may result in estimated costs of $100 million or more to state, local, 
    or tribal governments in the aggregate or to the private sector.
    
    List of Subjects in 40 CFR Part 70
    
        Environmental protection, Administrative practice and procedure, 
    Air pollution control, Intergovernmental relations, Operating permits, 
    Reporting and recordkeeping requirements.
    
    Authority: 42 U.S.C. 7401--7671q.
    
        Dated: June 22, 1995.
    Dennis Grams,
    Regional Administrator.
    [FR Doc. 95-16277 Filed 6-30-95; 8:45 am]
    BILLING CODE 6560-50-P
    
    

Document Information

Published:
07/03/1995
Department:
Environmental Protection Agency
Entry Type:
Proposed Rule
Action:
Proposed full approval.
Document Number:
95-16277
Dates:
Comments on this proposed action must be received in writing by August 2, 1995.
Pages:
34493-34497 (5 pages)
Docket Numbers:
KS-001, AD-FRL-5252-2
PDF File:
95-16277.pdf
CFR: (1)
40 CFR 70