Approval and Promulgation of Implementation Plans; State of Kansas

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

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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

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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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