Clean Air Act (CAA) Final Full Approval of Operating Permits Programs; State of Kansas, and Delegation of 112(l) Authority

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[KS001; AD-FRL-5407-8]

Clean Air Act (CAA) Final Full Approval of Operating Permits

Programs; State of Kansas, and Delegation of 112(l) Authority

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final full approval.

-----------------------------------------------------------------------

SUMMARY: The EPA is fully approving the operating permits program

submitted by the state of Kansas for the purpose of complying with

Federal requirements for an approvable state program to issue operating

permits to all major stationary sources and certain other sources. EPA

is also approving, under section 112(l), the state program for

accepting delegation of section 112 standards to enforce air toxics

regulations.

EFFECTIVE DATE: February 29, 1996.

ADDRESSES: Copies of the state's submittal and other supporting

information used in developing the final full approval are available

for inspection during normal business hours at the following location:

EPA Region VII, 726 Minnesota Avenue, Kansas City, Kansas 66101.

FOR FURTHER INFORMATION CONTACT: Wayne A. Kaiser at (913) 551-7603.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

Title V of the 1990 Clean Air Act Amendments (sections 501-507 of

the Clean Air Act (``the Act'')), and implementing regulations at 40

Code of Federal Regulations (CFR) Part 70, require that states develop

and submit operating permits 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.

On July 3, 1995, EPA proposed full approval of the operating

permits program for Kansas (60 FR 34493). No public comments were

received. In this notice, EPA is taking final action to promulgate full

approval of the operating permits program for the state of Kansas,

including delegation of 112(l) authority.

II. Final Action and Implications

A. Fulfillment of EPA Requested Modifications

The July 3, 1995, Federal Register notice proposing approval of the

Kansas program discussed three areas of the Kansas program which

required additional action prior to qualifying for full approval. The

state needed to: (1) modify certain regulations to ensure that they

were consistent with Part 70, (2) submit an Implementation Agreement

(I.A.) which describes certain provisions for state implementation of

the Part 70 program, and (3) submit an insignificant activities list.

The July 3, 1995, Federal Register notice and the Technical Support

Document for the notice describe in detail the changes in the program

required for full approval. The reader should refer to those documents

for a complete description of the changes required by Kansas.

The state of Kansas has satisfied the requirements for full program

approval as described in the notice proposing approval. The required

revisions were made to rules K.A.R. 28-19-7, K.A.R. 28-19-511, K.A.R.

28-19-512, and K.A.R. 28-19-518. The rule revisions were adopted by the

Secretary of the Kansas Department of Health and Environment (KDHE) on

November 14, 1995, and were effective December 8, 1995. The state also

submitted an I.A. which satisfactorily addresses the deficiencies

described in the notice which were to be addressed in the I.A. The

state also submitted an adequate insignificant activities list.

The I.A. includes a commitment that the permitting agency will not

exercise its authority under state law to grant a variance from the

duty to comply with a federally enforceable Part 70 permit, except

where such relief is granted through procedures allowed by Part 70.

Therefore, the state variance provision is not part of the Kansas Title

V program.

B. Final Action

The EPA is promulgating full approval of the operating permits

program submitted to EPA by the state of Kansas on December 12, 1994,

with supplemental submissions on April 7 and 17, 1995; November 14,

1995; and December 13, 1995. Among other things, the state of Kansas

has demonstrated its program meets the minimum elements of a state

operating permits program as specified in 40 CFR Part 70.

1. Regulations. This approval includes the following regulations

adopted by the KDHE as they relate to the Kansas Class I operating

permit program: K.A.R. 28-19-7, General provisions, definitions; K.A.R.

28-19-202, Annual emissions fee; K.A.R. 28-19-204, General provisions,

permit issuance and modification, public participation; K.A.R. 28-19-

400 through -404, General permits; K.A.R. 28-19-500 through -502,

Operating permits; and K.A.R. 28-19-510 through -518, Class I operating

permits.

2. Jurisdiction. The scope of the Part 70 program approved in this

notice applies to all Part 70 sources (as defined in the approved

program), within the state of Kansas, except any sources of air

pollution over which an Indian Tribe has jurisdiction. See 59 FR 55813,

55815-18 (November 9, 1994). The term ``Indian Tribe'' is defined under

the Act as ``any Indian Tribe, Band, Nation, or other organized group

or community, including any Alaska Native village, which is Federally

recognized as eligible for the special programs and services provided

by the United States to Indians, because of their status as Indians.''

See section 302(r) of the CAA;

[[Page 2939]]

59 FR 43956, 43962 (August 25, 1994); 58 FR 54364 (October 21, 1993).

3. CAA section 112(l). Requirements for approval, specified in 40

CFR 70.4(b), encompass section 112(l)(5) requirements for approval of a

program 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. Therefore, the EPA is also approving under

section 112(l)(5) and 40 CFR 63.91 the state's program for receiving

delegation of section 112 standards for both Part 70 and non-Part 70

sources that are unchanged from Federal standards as promulgated.

4. CAA section 112(g). 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 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

preconstruction review program that can serve as an adequate

implementation vehicle during the transition period, because it would

allow Kansas to select control measures that would meet Maximum

Available Control Technology, 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.

III. Administrative Requirements

A. Docket

Copies of the state submittal and other information relied upon for

the final full 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 final full approval. The docket is available for

public inspection at the location listed under the ADDRESSES section of

this document.

B. Executive Order 12866

The Office of Management and Budget has exempted this action from

Executive Order 12866 review.

C. Regulatory Flexibility Act

The 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 these operating permit programs, the state of

Kansas has elected to adopt the program provided for under Title V of

the CAA. These rules bind the state 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. EPA has 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 record keeping requirements.

Dated: December 18, 1995.

Dennis Grams,

Regional Administrator.

Part 70, title 40 of the Code of Federal Regulations is amended as

follows:

PART 70--[AMENDED]

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

Authority: 42 U.S.C. 7401--7671q.

2. Appendix A to part 70 is amended by adding the entry for Kansas

to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating

Permits Programs

* * * * *

Kansas

(a) The Kansas Department of Health and Environment program

submitted on December 12, 1994; April 7 and 17, 1995; November 14,

1995; and December 13, 1995. Full approval effective on February 29,

1996.

(b) [Reserved.]

* * * * *

[FR Doc. 96-1722 Filed 1-29-96; 8:45 am]

BILLING CODE 6560-50-P