[Federal Register Volume 72, Number 102 (Tuesday, May 29, 2007)]
[Rules and Regulations]
[Pages 29429-29431]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-10235]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R07-OAR-2006-0973; FRL-8318-6]
Approval and Promulgation of Implementation Plans; State of
Kansas
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is approving revisions to Kansas' State Implementation
Plan (SIP) to include updates to its Prevention of Significant
Deterioration (PSD) of Air Quality rule, which incorporate portions of
the New Source Review (NSR) program promulgated by the Environmental
Protection Agency in December 2002. Specifically, these revisions adopt
by reference provisions of 40 CFR 52.21 as in effect July 1, 2004,
except for subsections with references to the clean unit exemptions,
pollution control projects, and the record keeping provisions for the
actual-to-projected-actual emissions applicability test. Kansas did not
adopt the latter provisions because of the June 2005 decision by the
United States Court of Appeals for the District of Columbia Circuit,
which vacated the clean unit exemption and pollution control project
provisions and remanded back to EPA the record keeping provisions for
the actual-to-projected-actual emissions applicability test. We
proposed to approve the revisions on January 31, 2007, and received no
comments on the proposal.
DATES: This rule is effective on June 28, 2007.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R07-OAR-2006-0973. All documents in the docket are listed on
the http://www.regulations.gov Web site. 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 through
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, 8:00 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 (913) 551-7078, or by e-
mail at [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we'',
``us'', or ``our'' is used, we mean
[[Page 29430]]
EPA. This section provides additional information by addressing the
following questions:
What is the Federal Approval Process for a SIP?
What is the background of this action?
What is EPA's final action on Kansas' rule to incorporate NSR
reform?
Have the requirements for approval of a SIP revision been met?
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 is the Background of This Action?
The 2002 NSR Reform rules made changes to five areas of the NSR
programs. In summary, the 2002 rules: (1) Provide a new method for
determining baseline actual emissions; (2) adopt an actual-to-
projected-actual methodology for determining whether a major
modification has occurred; (3) allow major stationary sources to comply
with plant-wide applicability limits (PALs) to consider plant-wide
emission changes in order to determine whether or not a significant
emission increase has been triggered under the requirements of the
major NSR program; (4) provide a new applicability provision for
emissions units that are designated clean units; and (5) exclude
pollution control projects (PCPs).
After the 2002 NSR Reform rules were finalized and effective,
various petitioners challenged numerous aspects of these rules, along
with portions of EPA's 1980 NSR rules (45 FR 5276, August 7, 1980). On
June 24, 2005, the District of Columbia Circuit Court of Appeals issued
a decision on the challenges to the 2002 NSR Reform Rules. See New York
v. United States, 413 F.3d (DC Cir. 2005). In summary, the Court
vacated portions of the rules pertaining to clean units and pollution
control projects, remanded a portion of the rules regarding exemption
from record keeping, e.g., 40 CFR 52.21(r)(6) and 40 CFR 51.166(r)(6),
and let stand the other provisions included as part of the 2002 NSR
Reform rules. EPA has not yet responded to the Court's remand regarding
record keeping provisions.
The Kansas rule was submitted to EPA on July 25, 2006. The
submission included comments on the rules made during the state's
adoption process, the state's response to comments and other
information necessary to meet EPA's completeness criteria.
This rule adopts by reference sections of 40 CFR 52.21 as in effect
July 1, 2004, except for subsections with references to the clean unit
exemptions, pollution control projects, and the record keeping
provisions for the actual-to-projected-actual emissions applicability
test. Kansas did not adopt the latter provisions because of the June
24, 2005, District of Columbia Court of Appeals decision.
What is EPA's Final Action on Kansas' Rule to Incorporate NSR Reform?
In this action, we are approving revisions to Kansas' air quality
regulation, K.A.R. 28-19-350, entitled Prevention of Significant
Deterioration (PSD) of Air Quality, into the SIP. The final action
described in this section is identical to the action we proposed in the
January 31, 2007, notice of proposed rulemaking (72 FR 4472). The
rationale for this action is described in more detail in the proposal.
EPA received no comments on the proposal. This SIP amendment
incorporates by reference the Federal PSD program in 40 CFR 52.21,
including the 2002 NSR Reform rules, except for subsections with
references to the clean unit exemptions, pollution control projects,
and the recordkeeping provisions for the actual-to-projected-actual
emissions applicability test.
Have the Requirements for Approval of a SIP 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 of 40 CFR part 51, appendix V. In
addition, as explained above and in more detail in the proposed rule,
EPA believes that the revisions meet the substantive SIP requirements
of the CAA, including section 110 and implementing regulations.
Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
final 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 final
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 final 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 final 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 final 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
[[Page 29431]]
state rule implementing a Federal standard.
In reviewing SIP 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 final 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 CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by July 30, 2007. 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 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: May 14, 2007.
John B. Askew,
Regional Administrator, Region 7.
0
Chapter I, title 40 of the Code of Federal Regulations is amended as
follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart R--Kansas
0
2. In Sec. 52.870(c) the table is amended by revising an entry for
K.A.R. 28-19-350 to read as follows:
Sec. 52.870 Identification of plan.
* * * * *
(c) * * *
EPA-Approved Kansas Regulations
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State
Kansas citation Title effective EPA approval date Explanation
date
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* * * * * * *
K.A.R. 28-19-350............. Prevention of 06/30/06 05/29/07 [insert FR Kansas did not adopt
Significant page number where subsections with
Deterioration (PSD) the document references to the clean
of Air Quality. begins]. 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.
* * * * * * *
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[FR Doc. E7-10235 Filed 5-25-07; 8:45 am]
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