Approval and Promulgation of Air Quality Implementation Plans; Kansas; Update to Materials Incorporated by Reference

Federal RegisterApr 8, 2009

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[FRL-8760-9]

Approval and Promulgation of Air Quality Implementation Plans; Kansas; Update to Materials Incorporated by Reference

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule; notice of administrative change.

SUMMARY:

EPA is updating the materials submitted by Kansas that are incorporated by reference (IBR) into the state implementation plan (SIP). The regulations affected by this update have been previously submitted by the state agency and approved by EPA. This update affects the SIP materials that are available for public inspection at the National Archives and Records Administration (NARA), the Air and Radiation Docket and Information Center located at EPA Headquarters in Washington, DC, and the Regional Office.

DATES:

Effective Date:

This action is effective April 8, 2009.

ADDRESSES:

SIP materials which are incorporated by reference into 40 CFR part 52 are available for inspection at the following locations: Environmental Protection Agency, Region 7, 901 North 5th Street, Kansas City, Kansas 66101, or at

http://www.epa.gov/region07/programs/artd/air/rules/fedapprv.htm

; the Air and Radiation Docket and Information Center, EPA Headquarters Library, Room Number 3334, EPA West Building, 1301 Constitution Avenue, NW., Washington, DC 20460, and the National Archives and Records Administration. If you wish to obtain materials from a docket in the EPA Headquarters Library, please call the Office of Air and Radiation Docket at (202) 566-1742. For information on the availability of this material at NARA, call (202) 741-6030, or go to:

http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html

FOR FURTHER INFORMATION CONTACT:

Evelyn VanGoethem at (913) 551-7659, or by e-mail at

vangoethem.evelyn@epa.gov

SUPPLEMENTARY INFORMATION:

The SIP is a living document which the state revises as necessary to address the unique air pollution problems in the state. Therefore, EPA from time to time must take action on SIP revisions

containing new and/or revised regulations to make them part of the SIP. On May 22, 1997 (62 FR 27968), EPA revised the procedures for incorporating by reference Federally-approved SIPs, as a result of consultations between EPA and the Office of Federal Register. The description of the revised SIP document, IBR procedures and “Identification of plan” format are discussed in further detail in the May 22, 1997,

Federal Register

document.

On February 12, 1999, EPA published a document in the

Federal Register

(64 FR 7091) beginning the new IBR procedure for Kansas. On November 14, 2003 (68 FR 64532), EPA published an update to the IBR material for Kansas.

In this document, EPA is doing the following:

1. Announcing the update to the IBR material as of December 1, 2008.

2. Correcting the date format in the “State effective date” or “State submittal date” and “EPA approval date” columns in § 52.870 paragraphs (c), (d) and (e). Dates are numerical month/day/year without additional zeros.

3. Modifying the

Federal Register

citation in § 52.870 paragraphs (c), (d) and (e) to reflect the beginning page of the preamble as opposed to the page number of the regulatory text.

EPA has determined that today's rule falls under the “good cause” exemption in section 553(b)(3)(B) of the Administrative Procedures Act (APA) which, upon finding “good cause,” authorizes agencies to dispense with public participation and section 553(d)(3), which allows an agency to make a rule effective immediately (thereby avoiding the 30-day delayed effective date otherwise provided for in the APA). Today's rule simply codifies provisions which are already in effect as a matter of law in Federal and approved State programs. Under section 553 of the APA, an agency may find good cause where procedures are “impractical, unnecessary, or contrary to the public interest.” Public comment is “unnecessary” and “contrary to the public interest” since the codification only reflects existing law. Immediate notice in the CFR benefits the public by providing notice of the updated Kansas SIP compilation.

Statutory and Executive Order Reviews

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501

et seq

.);

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601

et seq

.);

• 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);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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 action 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).

EPA has also determined that the provisions of section 307(b)(1) of the Clean Air Act pertaining to petitions for judicial review are not applicable to this action. This action is simply an announcement of prior rulemakings that have previously undergone notice and comment. Prior EPA rulemaking actions for each individual component of the Kansas SIP compilation previously afforded interested parties the opportunity to file a petition for judicial review in the United States Court of Appeals for the appropriate circuit within 60 days of such rulemaking action.

List of Subjects in 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.

Dated: March 26, 2009.

William Rice,

Acting Regional Administrator, Region 7.

40 CFR part 52 is amended as follows:

PART 52—[AMENDED]

1. The authority for citation for part 52 continues to read as follows:

Authority:

42 U.S.C. 7401

et seq

Subpart R—Kansas

2. In § 52.870 paragraphs (b), (c), (d) and (e) are revised to read as follows:

§ 52.870

Identification of plan.

(b)

Incorporation by reference

(1) Material listed in paragraphs (c) and (d) of this section with an EPA approval date prior to December 1, 2008, was approved for incorporation by reference by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Material is incorporated as it exists on the date of the approval, and notice of any change in the material will be published in the

Federal Register

. Entries in paragraphs (c) and (d) of this section with EPA

approval dates after December 1, 2008, will be incorporated by reference in the next update to the SIP compilation.

(2) EPA Region 7 certifies that the rules/regulations provided by EPA in the SIP compilation at the addresses in paragraph (b)(3) of this section are an exact duplicate of the officially promulgated state rules/regulations which have been approved as part of the SIP as of December 1, 2008.

(3) Copies of the materials incorporated by reference may be inspected at the Environmental Protection Agency, Region 7, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101; at the EPA, Air and Radiation Docket and Information Center, Room Number 3334, EPA West Building, 1301 Constitution Avenue, NW., Washington, DC 20460; or at the National Archives and Records Administration (NARA). If you wish to obtain material from the EPA Regional Office, please call (913) 551-7659; for material from a docket in EPA Headquarters Library, please call the Office of Air and Radiation Docket at (202) 566-1742. For information on the availability of this material at NARA, call (202) 741-6030, or go to:

http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html

(c)

EPA-approved regulations

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

General Regulations

K.A.R. 28-19-6

Statement of Policy

1/1/72

5/31/72, 37 FR 10867

Kansas revoked this rule 5/1/82.

K.A.R. 28-19-8

Reporting Required

1/23/95

7/17/95, 60 FR 36361

K.A.R. 28-19-9

Time Schedule for Compliance

5/1/84

12/21/87, 52 FR 48265

K.A.R. 28-19-10

Circumvention of Control Regulations

1/1/71

5/31/72, 37 FR 10867

K.A.R. 28-19-11

Exceptions Due to Breakdowns or Scheduled Maintenance

1/1/74

11/8/73, 38 FR 30876

K.A.R. 28-19-12

Measurement of Emissions

1/1/71

5/31/72, 37 FR 10867

K.A.R. 28-19-13

Interference with Enjoyment of Life and Property

1/1/74

11/8/73, 38 FR 30876

K.A.R. 28-19-14

Permits Required

1/24/94

7/17/95, 60 FR 36361

K.A.R. 28-19-15

Severability

1/1/71

5/31/72, 37 FR 10867

Nonattainment Area Requirements

K.A.R. 28-19-16

New Source Permit Requirements for Designated Nonattainment Areas

10/16/89

1/16/90, 55 FR 1420

K.A.R. 28-19-16a

Definitions

10/10/97

1/11/00, 65 FR 1545

K.A.R. 28-19-16b

Permit Required

10/16/89

1/16/90, 55 FR 1420

K.A.R. 28-19-16c

Creditable Emission Reductions

10/16/89

1/16/90, 55 FR 1420

The EPA deferred action on the state's current definition of the terms “building, structure, facility, or installation”; “installation”; and “reconstruction.”

K.A.R. 28-19-16d

Fugitive Emission Exemption

10/16/89

1/16/90, 55 FR 1420

K.A.R. 28-19-16e

Relaxation of Existing Emission Limitations

10/16/89

1/16/90, 55 FR 1420

K.A.R. 28-19-16f

New Source Emission Limits

10/16/89

1/16/90, 55 FR 1420

K.A.R. 28-19-16g

Attainment and Maintenance of National Ambient Air Quality Standards

10/16/89

1/16/90, 55 FR 1420

K.A.R. 28-19-16h

Compliance of Other Sources

10/16/89

1/16/90, 55 FR 1420

K.A.R. 28-19-16i

Operating Requirements

10/16/89

1/16/90, 55 FR 1420

K.A.R. 28-19-16j

Revocation and Suspension of Permit

10/16/89

1/16/90, 55 FR 1420

K.A.R. 28-19-16k

Notification Requirements

10/16/89

1/16/90, 55 FR 1420

K.A.R. 28-19-16l

Failure to Construct

10/16/89

1/16/90, 55 FR 1420

K.A.R. 28-19-16m

Compliance with Provisions of Law Required

10/16/89

1/16/90, 55 FR 1420

Attainment Area Requirements

K.A.R. 28-19-17

Prevention of Significant Deterioration of Air Quality

11/22/02

2/26/03, 68 FR 8845

K.A.R. 28-19-17a through 28-19-17q revoked. Provision moved to K.A.R. 28-19-350.

Stack Height Requirements

K.A.R. 28-19-18

Stack Heights

5/1/88

4/20/89, 54 FR 15934

The state regulation has stack height credit. The EPA has not approved that part.

K.A.R. 28-19-18b

Definitions

5/1/88

4/20/89, 54 FR 15934

K.A.R. 28-19-18c

Methods for Determining Good Engineering Practice Stack Height

5/1/88

4/20/89, 54 FR 15934

K.A.R. 28-19-18d

Fluid Modeling

5/1/88

4/20/89, 54 FR 15934

K.A.R. 28-19-18e

Relaxation of Existing Emission Limitations

5/1/88

4/20/89, 54 FR 15934

K.A.R. 28-19-18f

Notification Requirements

5/1/88

4/20/89, 54 FR 15934

Continuous Emission Monitoring

K.A.R. 28-19-19

Continuous Emission Monitoring

6/8/92

1/12/93, 58 FR 3847

Processing Operation Emissions

K.A.R. 28-19-20

Particulate Matter Emission Limitations

10/16/89

1/16/90, 55 FR 1420

K.A.R. 28-19-21

Additional Emission Restrictions

10/16/89

1/16/90, 55 FR 1420

K.A.R. 28-19-23

Hydrocarbon Emissions—Stationary Sources

12/27/72

11/8/73, 38 FR 30876

K.A.R. 28-19-24

Control of Carbon Monoxide Emissions

1/1/72

11/8/73, 38 FR 30876

Indirect Heating Equipment Emissions

K.A.R. 28-19-30

General Provisions

1/1/72

5/31/72, 37 FR 10867

K.A.R. 28-19-31

Emission Limitations

11/8/93

10/18/94, 59 FR 52425

K.A.R. 28-19-32

Exemptions—Indirect Heating Equipment

11/8/93

10/18/94, 59 FR 52425

Incinerator Emissions

K.A.R. 28-19-40

General Provisions

1/1/71

5/31/72, 37 FR 10867

K.A.R. 28-19-41

Restriction of Emission

12/27/72

11/8/73, 38 FR 30876

K.A.R. 28-19-42

Performance Testing

1/1/72

11/8/73, 38 FR 30876

K.A.R. 28-19-43

Exceptions

1/1/71

5/31/72, 37 FR 10867

Air Pollution Emergencies

K.A.R. 28-19-55

General Provisions

1/1/72

5/31/72, 37 FR 10867

K.A.R. 28-19-56

Episode Criteria

10/16/89

1/16/90, 55 FR 1420

K.A.R. 28-19-57

Emission Reduction Requirements

1/1/72

5/31/72, 37 FR 10867

K.A.R. 28-19-58

Emergency Episode Plans

1/1/72

5/31/72, 37 FR 10867

Volatile Organic Compound Emissions

K.A.R. 28-19-61

Definitions

10/7/91

6/23/92, 57 FR 27936

K.A.R. 28-19-62

Testing Procedures

10/7/71

6/23/92, 57 FR 27936

K.A.R. 28-19-63

Automobile and Light Duty Truck Surface Coating

11/8/93

10/18/94, 59 FR 52425

K.A.R. 28-19-64

Bulk Gasoline Terminals

5/1/88

5/18/88, 53 FR 17700

K.A.R. 28-19-65

Volatile Organic Compounds (VOC) Liquid Storage in Permanent Fixed Roof Type Tanks

5/1/88

5/18/88, 53 FR 17700

K.A.R. 28-19-66

Volatile Organic Compounds (VOC) Liquid Storage in External Floating Roof Tanks

5/1/88

5/18/88, 53 FR 17700

K.A.R. 28-19-67

Petroleum Refineries

5/1/86

1/2/87, 52 FR 53

K.A.R. 28-19-68

Leaks from Petroleum Refinery Equipment

5/1/86

1/2/87, 52 FR 53

K.A.R. 28-19-69

Cutback Asphalt

5/1/88

5/18/88, 53 FR 17700

K.A.R. 28-19-70

Leaks from Gasoline Delivery Vessels and Vapor Collection Systems

5/15/98

1/11/00, 65 FR 1545

K.A.R. 28-19-71

Printing Operations

5/1/88

5/18/88, 53 FR 17700

K.A.R. 28-19-72

Gasoline Dispensing Facilities

5/1/88

5/18/88, 53 FR 17700

K.A.R. 28-19-73

Surface Coating of Miscellaneous Metal Parts and Products and Metal Furniture

6/8/92

1/12/93, 58 FR 3847

K.A.R. 28-19-74

Wool Fiberglass Manufacturing

5/1/88

5/18/88, 53 FR 17700

K.A.R. 28-19-76

Lithography Printing Operations

10/7/91

6/23/92, 57 FR 27936

K.A.R. 28-19-77

Chemical Processing Facilities That Operate Alcohol Plants or Liquid Detergent Plants

10/7/91

6/23/92, 57 FR 27936

General Provisions

K.A.R. 28-19-200

General Provisions; definitions

10/10/97

1/11/00, 65 FR 1545

New rule. Replaces K.A.R. 28-19-7 definitions.

K.A.R. 28-19-201

General Provisions; Regulated Compounds List

10/10/97

1/11/00, 65 FR 1545

New rule. Replaces Regulated Compounds in K.A.R. 28-19-7.

K.A.R. 28-19-204

Permit Issuance and Modification; Public Participation

1/23/95

7/17/95, 60 FR 36361

K.A.R. 28-19-210

Calculation of Actual Emissions

11/22/93

1/11/00, 65 FR 1545

K.A.R. 28-19-212

Approved Test Methods and Emission Compliance Determination Procedures

1/23/95

7/17/95, 60 FR 36361

Construction Permits and Approvals

K.A.R. 28-19-300

Applicability

1/23/95

7/17/95, 60 FR 36361

K.A.R. 28-19-301

Application and Issuance

1/23/95

7/17/95, 60 FR 36361

K.A.R. 28-19-302

Additional Provisions; Construction Permits

1/23/95

7/17/95, 60 FR 36361

K.A.R. 28-19-303

Additional Provisions; Construction Approvals

1/23/95

7/17/95, 60 FR 36361

K.A.R. 28-19-304

Fees

1/23/95

7/17/95, 60 FR 36361

K.A.R. 28-19-350

Prevention of Significant Deterioration (PSD) of Air Quality

6/30/06

5/29/07, 72 FR 29429

Kansas did not adopt subsections with references to the clean unit exemptions, pollution control projects and the recordkeeping provisions for the actual-to-projected-actual emissions applicability test because of the June 24, 2005, decision of the United States Court of Appeals for the District of Columbia Circuit relating to the Clean Unit Exemption, Pollution Control Projects and the recordkeeping provisions for the actual-to-projected-actual emissions applicability test.

General Permits

K.A.R. 28-19-400

General Requirements

1/23/95

7/17/95, 60 FR 36361

K.A.R. 28-19-401

Adoption by the Secretary

1/23/95

7/17/95, 60 FR 36361

K.A.R. 28-19-402

Availability of Copies; Lists of Sources to Which Permits Issued

1/23/95

7/17/95, 60 FR 36361

K.A.R. 28-19-403

Application to Construct or Operate Pursuant to Terms of General Permits

1/23/95

7/17/95, 60 FR 36361

K.A.R. 28-19-404

Modification, Revocation

1/23/95

7/17/95, 60 FR 36361

Operating Permits

K.A.R. 28-19-500

Applicability

1/23/95

7/17/95, 60 FR 36361

K.A.R. 28-19-501

Emissions Limitations and Pollution Control Equipment for Class I and Class II Operating Permits; Conditions

1/23/95

7/17/95, 60 FR 36361

K.A.R. 28-19-502

Identical Procedural Requirements

1/23/95

7/17/95, 60 FR 36361

Class II Operating Permits

K.A.R. 28-19-540

Applicability

1/23/95

7/17/95, 60 FR 36361

K.A.R. 28-19-541

Application Timetable and Contents

1/23/95

7/17/95, 60 FR 36361

K.A.R. 28-19-542

Permit-by-Rule

9/23/05

2/8/08, 73 FR 7468

K.A.R. 28-19-543

Permit Term and Content; Operational Compliance

1/23/95

7/17/95, 60 FR 36361

K.A.R. 28-19-544

Modification of Sources or Operations

1/23/95

7/17/95, 60 FR 36361

K.A.R. 28-19-545

Application Fee

1/23/95

7/17/95, 60 FR 36361

K.A.R. 28-19-546

Annual Emission Inventory

9/23/05

2/8/08, 73 FR 7468

K.A.R. 28-19-561

Permit-by-Rule; Reciprocating Engines

9/23/05

2/8/08, 73 FR 7468

K.A.R. 28-19-562

Permit-by-Rule; Organic Solvent Evaporative Sources

9/23/05

2/8/08, 73 FR 7468

K.A.R. 28-19-563

Permit-by-Rule; Hot Mix Asphalt Facilities

9/23/05

2/8/08, 73 FR 7468

K.A.R. 28-19-564

Permit-by-Rule; Sources with Actual Emissions Less Than 50 Percent of Major Source Thresholds

10/4/02

3/26/03, 68 FR 14540

Open Burning Restrictions

K.A.R. 28-19-645

Open Burning Prohibited

3/1/96

10/2/96, 61 FR 51366

K.A.R. 28-19-646

Responsibility for Open Burning

3/1/96

10/2/96, 61 FR 51366

K.A.R. 28-19-647

Exceptions to Prohibition on Open Burning

3/1/96

10/2/96, 61 FR 51366

K.A.R. 28-19-648

Agricultural Open Burning

3/1/96

10/2/96, 61 FR 51366

K.A.R. 28-19-650

Emissions Opacity Limits

1/29/99

1/11/00, 65 FR 1545

New rule. Replaces K.A.R. 28-19-50 and 28-19-52.

Volatile Organic Compound Emissions

K.A.R. 28-19-714

Control of Emissions from Solvent Metal Cleaning

9/1/02

10/30/02, 67 FR 66058

K.A.R. 28-19-717

Control of Volatile Organic Compound (VOC) Emissions from Commercial Bakery Ovens in Johnson and Wyandotte Counties

12/22/00

12/12/01, 66 FR 64148

K.A.R. 28-19-719

Fuel Volatility

4/27/01

2/13/02, 67 FR 6655

Conformity

K.A.R. 28-19-800

General Conformity of Federal Actions

3/15/96

10/2/96, 61 FR 51366

(d)

EPA-approved State source-specific permits.

EPA-Approved Kansas Source-Specific Permits

Name of source

Permit No.

State effective date

EPA approval date

Explanation

(1) Board of Public Utilities, Quindaro Power Station

2090048

10/20/93

10/18/94, 59 FR 52425

(2) Board of Public Utilities, Kaw Power Station

2090049

10/20/93

10/18/94, 59 FR 52425

(e)

EPA-approved nonregulatory provisions and quasi-regulatory measures.

EPA-Approved Kansas Nonregulatory Provisions

Name of nonregulatory SIP provision

Applicable geographic or Nonattainment area

State submittal date

EPA approval date

Explanation

(1) Implementation Plan for Attainment and Maintenance of the National Air Quality Standards

Statewide

1/31/72

5/31/72, 37 FR 10867

(2) Comments on the Plan in Response to EPA Review

Kansas City

3/24/72

6/22/73, 38 FR 16550