Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Proposed Rules 17599 

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 CAA; 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. 

Statutory Authority 

The statutory authority for this action 

is provided by Section 110 of the CAA, 

as amended (42 U.S.C. 7410). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Ozone. 

Dated: March 23, 2011. 

Karl Brooks, 

Regional Administrator, Region 7. 

[FR Doc. 2011–7454 Filed 3–29–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R07–OAR–2011–0304 FRL–9288–1] 

Approval and Promulgation of 

Implementation Plans; State of Kansas 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

the State Implementation Plan (SIP) 

submittal from the State of Kansas 

addressing the requirements of Clean 

Air Act (CAA) sections 110(a)(1) and (2) 

for the 1997 revisions to the National 

Ambient Air Quality Standards 

(NAAQS) for ozone. Section 110(a)(1) 

requires that each state adopt and 

submit a SIP to support implementation 

of each new or revised NAAQS 

promulgated by the EPA and these SIPs 

are commonly referred to as 

‘‘infrastructure’’ SIPs. EPA believes that 

Kansas’ infrastructure SIP adequately 

addresses the elements described in 

section 110(a)(2) and further described 

in the October 2, 2007 guidance for 

infrastructure SIPs issued by the EPA 

Office of Air Quality Planning and 

Standards. However, because EPA 

already approved the portion of Kansas’ 

SIP submittal relating to the interstate 

transport infrastructure element, section 

110(a)(2)(D)(i), this proposed 

rulemaking does not address the 

interstate transport element, nor does 

this proposal reopen any aspect of 

EPA’s prior action on the interstate 

transport element. Furthermore, this 

action does not address infrastructure 

requirements with respect to the 1997 

PM2.5 NAAQS or the 2006 revisions to 

the NAAQS. Those requirements will be 

addressed in future rulemaking. 

DATES: Comments must be received on 

or before April 29, 2011. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R07– 

OAR–2011–0304 by one of the following 

methods: 

1. http://www.regulations.gov. Follow 

the on-line instructions for submitting 

comments. 

2. E-mail: kramer.elizabeth@epa.gov. 

3. Mail: Ms. Elizabeth Kramer, Air 

Planning and Development Branch, U.S. 

Environmental Protection Agency, 

Region 7, Air and Waste Management 

Division, 901 North 5th Street, Kansas 

City, Kansas 66101. 

4. Hand Delivery or Courier: Deliver 

your comments to Ms. Elizabeth 

Kramer, Air Planning and Development 

Branch, U.S. Environmental Protection 

Agency, Region 7, Air and Waste 

Management Division, 901 North 5th 

Street, Kansas City, Kansas 66101. 

Instructions: Direct your comments to 

Docket ID No. EPA–R07–OAR–2011– 

0304. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit through http:// 

www.regulations.gov or e-mail 

information that you consider to be CBI 

or otherwise protected. The http:// 

www.regulations.gov Web site is an 

‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and should be free of any 

defects or viruses. 

Docket: All documents in the 

electronic docket are listed in the 

http://www.regulations.gov index. 

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, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in http:// 

www.regulations.gov or in hard copy at 

the U.S. Environmental Protection 

Agency, Region 7, 901 North 5th Street, 

Kansas City, Kansas 66101, from 8 a.m. 

until 4:30 p.m., Monday through Friday, 

excluding legal 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: Ms. 

Elizabeth Kramer, Air Planning and 

Development Branch, U.S. 

Environmental Protection Agency, 

Region 7, 901 North 5th Street, Kansas 

City, Kansas 66101; telephone number: 

(913) 551–7186; fax number: (913) 551– 

7844; e-mail address: 

kramer.elizabeth@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we refer to 

EPA. This section provides additional 

WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS

17600 Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Proposed Rules 

1William T. Harnett, Director, Air Quality Policy 

Division, Office of Air Quality Planning and 

Standards. ‘‘Guidance on SIP Elements Required 

Under Sections 110(a)(1) and (2) for the 1997 8-hour 

Ozone and PM2.5 National Ambient Air Quality 

Standards.’’ Memorandum to EPA Air Division 

Directors, Regions I–X, October 2, 2007. 

2As discussed in further detail below, subsection 

110(a)(2)(I) is not applicable for the infrastructure 

SIP approval process and therefore EPA will take 

action on the requirements of part D attainment 

plans separately. 

3As discussed in further detail below, subsection 

110(a)(2)(J), as it relates to visibility protection, is 

also not applicable for the infrastructure SIP 

approval process, and therefore EPA is not 

addressing it in today’s proposed rulemaking. 

4This action does not address infrastructure 

requirements with respect to the 1997 PM2.5

NAAQS or the 2006 revisions to the NAAQS. Those 

requirements will be addressed in future 

rulemaking. 5Subsequent to this approval, updated modeling 

in support of the proposed Transport Rule (75 FR 

45210) has indicated that emissions from Kansas 

interfere with maintenance of the 1997 8-hour 

ozone NAAQS in downwind areas. Therefore, EPA 

believes that the previously approved Kansas SIP 

may no longer adequately address these emissions. 

Therefore, in a separate action, EPA has proposed 

to find that the SIP revision approved on March 9, 

2007 is substantially inadequate pursuant to section 

110(a)(2)(D)(i)(I). If EPA finalizes this proposed 

finding, Kansas would be required to revise its SIP 

to correct these deficiencies. See 76 FR 763 (January 

6, 2011) for more details. 

6For example, KDHE submitted its ‘‘Kansas City 

Eight-Hour Ozone Maintenance Plan’’ to EPA on 

May 23, 2007, which was approved by EPA on 

August 9, 2007. See 72 FR 44781. This plan 

specifically demonstrates how KDHE will maintain 

the 8-hour ozone standard promulgated in 1997, 

consistent with the requirements of section 

110(a)(1) and implementing regulations at 40 CFR 

51.905(a)(4). It also contains contingency plans to 

ensure that any violation of the 1997 ozone 

standard is promptly corrected. 

information by addressing the following 

questions: 

I. What is a section 110(a)(1) and (2) 

infrastructure SIP? 

II. What elements are applicable under 

section 110(a)(1) and (2)? 

III. What is EPA’s evaluation of how the state 

addressed the relevant elements of 

section 110(a)(1) and (2)? 

IV. What action is EPA proposing? 

V. Statutory and Executive Order Reviews 

I. What is a section 110(a)(1) and (2) 

infrastructure SIP? 

Section 110(a)(1) and (2) of the CAA 

require, in part, that states submit to 

EPA plans to implement, maintain and 

enforce each of the NAAQS 

promulgated by EPA. These provisions 

require states to address basic SIP 

requirements including, for example, 

adequate provisions for emission 

inventory development, monitoring, and 

modeling to assure attainment and 

maintenance of the applicable 

standards. By statute, SIPs meeting the 

requirements of section 110(a)(1) and (2) 

are to be submitted by States within 

three years after promulgation of a new 

or revised standard. These SIPs are 

commonly referred to as ‘‘infrastructure’’ 

SIPs. 

II. What elements are applicable under 

section 110(a)(1) and (2)? 

On October 2, 2007, EPA issued 

guidance to address infrastructure SIP 

elements required under section 

110(a)(1) and (2) for the 1997 8-hour 

ozone and PM2.5 NAAQS.1 EPA will 

address these elements below under the 

following headings: (A) Emission limits 

and other control measures; (B) Ambient 

air quality monitoring/data system; (C) 

Program for enforcement of control 

measures (PSD, New Source Review for 

nonattainment areas, and construction 

and modification of all stationary 

sources); (D) Interstate and international 

transport; (E) Adequate authority, 

resources, implementation, and 

oversight; (F) Stationary source 

monitoring system; (G) Emergency 

authority; (H) Future SIP revisions; (I) 

Nonattainment areas; 2 (J) Consultation 

with government officials, public 

notification, prevention of significant 

deterioration (PSD), and visibility 

protection; 3 (K) Air quality modeling/ 

data; (L) Permitting fees; and 

(M) Consultation/participation by 

affected local entities.4

III. What is EPA’s evaluation of how the 

state addressed the relevant elements of 

section 110(a)(1) and (2)? 

On July 18, 1997, EPA promulgated 

new 8-hour ozone and new fine 

particulate matter primary and 

secondary NAAQS. (62 FR 38894; 62 FR 

38711). On January 8, 2008, EPA Region 

7 received the state of Kansas’ ozone 

infrastructure SIP submittal. In a letter 

dated July 20, 2009, Kansas provided 

additional clarification on this 

submittal. EPA has reviewed the state’s 

formal submission and the relevant 

statutory and regulatory authorities and 

provisions generally referenced in the 

submittal from Kansas. 

As described below, today’s action 

only pertains to the 1997 ozone 

standard; it does not pertain to EPA’s 

1997 promulgation of the PM2.5

standards. In addition, it does not 

address issues relating to interstate 

transport under section 110(a)(2)(D)(i), 

which have already been addressed for 

the 1997 ozone and PM2.5 NAAQS in 

prior rulemaking (72 FR 10608).5

Kansas’ SIP submittal addresses the 

provisions of section 110(a)(1) and (2) as 

described below. EPA believes that 

Kansas has the adequate infrastructure 

needed to address all applicable 

elements of section 110(a)(1) and (2) for 

the 1997 8-hour ozone NAAQS. 

(A) Emission limits and other control 

measures: Section 110(a)(2)(A) requires 

SIPs to include enforceable emission 

limits and other control measures, 

means or techniques, schedules for 

compliance and other related matters as 

needed to implement, maintain and 

enforce each NAAQS. 

The state of Kansas’ statutes and 

regulations authorize Kansas 

Department of Health and Environment 

(KDHE) to regulate air quality and 

implement air quality control 

regulations. KDHE’s statutory authority 

can be found in Chapter 65, Article 30 

of the Kansas Statutes Annotated (KSA), 

otherwise known as the Kansas Air 

Quality Act. KSA Section 65–3003 

places the responsibility for air quality 

conservation and control of air pollution 

with the Secretary of Health and 

Environment (‘‘Secretary’’). The 

Secretary in turn administers the Kansas 

Air Quality Act through the Division of 

Environment within KDHE. Air 

pollution is defined in KSA Section 65– 

3002(c) as the presence in the outdoor 

atmosphere of one or more air 

contaminants in such quantities and 

duration as is, or tends significantly to 

be, injurious to human health or 

welfare, animal or plant life, or 

property, or would unreasonably 

interfere with the enjoyment of life or 

property, or would contribute to the 

formation of regional haze. 

KSA Section 65–3005(a)(1) provides 

authority to the Secretary to adopt, 

amend and repeal rules and regulations 

implementing the Kansas Air Quality 

Act. It also gives the Secretary the 

authority to establish ambient air 

quality standards for the state of Kansas 

as a whole or for any part thereof. KSA 

Section 65–3005(a)(12). The Secretary 

also has the authority to establish 

emission control requirements as 

appropriate to facilitate the 

accomplishment of the purposes of the 

Kansas Air Quality Act. KSA Section 

65–3010(a). 

In its letters to EPA dated January 2, 

2008, and July 20, 2009, transmitting its 

revisions to the Kansas SIP, KDHE 

stated that the revised SIP specifically 

addressed the revised NAAQS 

promulgated on July 18, 1997, for ozone. 

This assertion is consistent with 

previous SIP submissions, which EPA 

has approved for Kansas, implementing 

the 1997 ozone standards.6 Therefore, 

EPA believes ozone is an air 

contaminant which may be regulated 

under Kansas law. 

EPA notes that the Kansas Air Quality 

Regulations provide exemptions from 

the emission control requirements for 

malfunction breakdowns or necessary 

repairs, under certain conditions. See, 

WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS

Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Proposed Rules 17601 

7Steven Herman, Assistant Administrator for 

Enforcement and Compliance Assurance, and 

Robert Perciasepe, Assistant Administrator for Air 

and Radiation. ‘‘State Implementation Plans (SIPs): 

Policy Regarding Excess Emissions During 

Malfunctions, Startup, and Shutdown.’’ 

Memorandum to EPA Air Division Directors, 

September 20, 1999. 

8The statutory variance provisions are not 

included in the Kansas SIP and are not recognized 

under federal law. In any event, a variance from an 

EPA-approved SIP requirement would not be 

recognized as a revision to the SIP unless approved 

by EPA under the CAA requirements for SIP 

revisions (see, 40 CFR 51.104(d)). 

9 J. Craig Potter, Assistant Administrator for Air 

and Radiation, Thomas L. Adams, Jr., Assistant 

Administrator for Enforcement and Compliance 

Monitoring, and Francis S. Blake, General Counsel, 

Office of General Counsel. ‘‘Review of State 

Implementation Plans and Revisions for 

Enforceability and Legal Sufficiency.’’ 

Memorandum, September 23, 1987. See also 52 FR 

45109 (November 24, 1987). 

e.g., KAR 28–19–11. In today’s proposed 

rulemaking, EPA is not proposing to 

approve or disapprove any existing state 

provisions with regard to excess 

emissions during a startup, shutdown or 

malfunction (SSM) of operations at a 

facility. EPA believes that a number of 

states have SSM provisions that are 

contrary to the Clean Air Act and 

existing EPA guidance,7 and the Agency 

plans to address such state regulations 

in the future. In the meantime, EPA 

encourages any state having a deficient 

SSM provision to take steps to correct 

it as soon as possible. 

EPA also notes that the Kansas Air 

Quality Act contains provisions at KSA 

65–3013 that give the Secretary the 

authority, under certain circumstances, 

to grant variances from rules and 

regulations established under the Clean 

Air Act.8 Furthermore, the Kansas Air 

Quality Regulations contain provisions 

which allow the Secretary of KDHE to 

exercise his or her discretion to approve 

alternatives to the Kansas regulations 

(see, e.g., KAR 28–19–19(l)(5), which 

allows for data reporting procedures 

that vary from those in the regulation; 

KAR 28–19–210(a), which allows KDHE 

to approve alternate methods for 

calculating actual emissions from an 

emissions unit or stationary source). In 

this action, EPA is not proposing to 

approve or disapprove any existing state 

rules with regard to such ‘‘variance’’ or 

‘‘Secretary’s discretion’’ provisions. EPA 

believes that a number of states have 

such provisions that are contrary to the 

Clean Air Act and existing EPA 

guidance,9 and the Agency plans to take 

action in the future to address such state 

regulations. In the meantime, EPA 

encourages any state having a ‘‘variance’’ 

or ‘‘Secretary’s (director’s) discretion’’ 

provision that is contrary to the Clean 

Air Act and EPA guidance to take steps 

to correct the deficiency as soon as 

possible. 

EPA believes that Kansas has 

statutory and regulatory authority to 

establish additional emissions 

limitations and other measures, as 

necessary to address attainment and 

maintenance of the ozone standards. 

Therefore, EPA believes that the Kansas 

SIP adequately addresses the 

requirements of section 110(a)(2)(A) for 

the 1997 8-hour ozone NAAQS. 

(B) Ambient air quality monitoring/ 

data system: Section 110(a)(2)(B) 

requires SIPs to include provisions to 

provide for establishment and operation 

of ambient air quality monitors, 

collection and analysis of ambient air 

quality data, and making these data 

available to EPA upon request. 

To address this element, KSA Section 

65–3007 provides the enabling authority 

necessary for Kansas to fulfill the 

requirements of section 110(a)(2)(B). 

This provision gives the Secretary the 

authority to classify air contaminant 

sources which, in his or her judgment, 

may cause or contribute to air pollution. 

Furthermore, the Secretary has the 

authority to require such air 

contaminant sources to monitor 

emissions, operating parameters, 

ambient impacts of any source 

emissions, and any other parameters 

deemed necessary. KSA Section 65– 

3007(b). The Secretary can also require 

these sources to keep records and make 

reports consistent with the Kansas Air 

Quality Act. 

Kansas has an air quality monitoring 

network operated by KDHE and local air 

quality agencies that collects air quality 

data that are compiled, analyzed, and 

reported to EPA. KDHE’s Web site 

contains up-to-date information about 

air quality monitoring, including a 

description of the network and 

information about the monitoring of 

ozone. See http://www.kdheks.gov/bar/

air-monitor/indexMon.html. On 

February 23, 2010, EPA approved 

Kansas’ 2009 ambient air monitoring 

network plan. 

Within KDHE, the Bureau of Air and 

Radiation implements these 

requirements. Along with its other 

duties, the monitoring program collects 

air monitoring data, quality assures the 

results, and reports the data. The data 

are then used to develop the appropriate 

regulatory or outreach strategies to 

reduce air pollution. 

KDHE submits a 5–Year Ambient Air 

Monitoring Network Assessment to 

EPA, including plans for its ozone 

monitoring network, as required by 40 

CFR 58.10. The most recent 5-year 

network assessment was dated August 

30, 2010. Kansas makes this plan 

available for public review on KDHE’s 

Web site. See, e.g., http:// 

www.kdheks.gov/bar/air-monitor/2010_

Kansas_5-year_Monitoring_Network_

Assessment.pdf. This Plan includes, 

among other things, the locations for the 

ozone monitoring network. Kansas 

submits air quality data from this 

network to EPA’s Air Quality System 

(AQS), which EPA and KDHE use to 

determine if the network site monitors 

are in compliance with the NAAQS. 

Based on the foregoing, EPA believes 

that the Kansas SIP meets the 

requirements of section 110(a)(2)(B) for 

the 1997 8-hour ozone NAAQS. 

(C) Program for enforcement of 

control measures (PSD, New Source 

Review for nonattainment areas, and 

construction and modification of all 

stationary sources): Section 110(a)(2)(C) 

requires states to include the following 

elements in the SIP: (1) A program 

providing for enforcement of all SIP 

measures described in section 

110(a)(2)(A); (2) a program for the 

regulation of the modification and 

construction of stationary sources as 

necessary to protect the applicable 

NAAQS; and (3) a permit program to 

meet the major source permitting 

requirements of the Act (including the 

program for areas designated as not 

attaining the NAAQS, and a program for 

the prevention of significant 

deterioration of air quality program in 

other areas). Note that all areas of 

Kansas are currently in attainment with 

the NAAQS. In addition, as discussed in 

further detail below, this proposed 

infrastructure SIP rulemaking will not 

address the Kansas program for 

nonattainment area-related provisions, 

since those are not applicable for the 

infrastructure SIP approval process. 

(1) With respect to enforcement of 

requirements of the SIP, KSA Section 

65–3005(a)(3) gives the Secretary the 

authority to issue orders, permits and 

approvals as may be necessary to 

effectuate the purposes of the Kansas 

Air Quality Act and enforce the Act by 

all appropriate administrative and 

judicial proceedings. Pursuant to KSA 

Section 65–3006, the Secretary also has 

the authority to publish and enforce 

rules, regulations and standards to 

implement the Act and to employ the 

professional, technical or other staff to 

effectuate the provisions of the Act. In 

addition, if the Secretary or the director 

of the Division of Environment finds 

that any person has violated any 

provision of any approval, permit or 

compliance plan or any provision of the 

Act or any rule or regulation 

promulgated under the Act, he or she 

may issue an order directing the person 

to take such action as necessary to 

WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS

17602 Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Proposed Rules 

correct the violation. KSA Section 65– 

3011. 

KSA Section 65–3018 gives the 

Secretary the authority to impose a 

monetary penalty against any person 

who either violates any order or permit 

issued under the Kansas Air Quality 

Act, or violates any provision of the Act 

or rule or regulation promulgated 

thereunder. Section 65–3019 provides 

for criminal penalties for knowing 

violations. 

(2) Section 110(a)(2)(C) also requires 

that the SIP include measures to 

regulate construction and modification 

of stationary sources to protect the 

NAAQS. Kansas has a program under 

KAR 28–19–300 that requires sources 

(which meet certain criteria listed in 

KAR 28–19–300(a)) to first obtain a 

construction permit from KDHE. The 

permitting process is designed to 

ensure, among other things, that new 

and modified sources will not interfere 

with NAAQS attainment. If KDHE 

determines that emissions from a 

constructed or modified source will 

interfere with attainment or 

maintenance of the NAAQS, it cannot 

issue the permit. See KAR 28–19– 

301(d). 

Kansas also requires preconstruction 

permits for a second category of smaller 

sources that meet the criteria listed in 

KAR 28–19–300(b). Prior to 

commencing construction or 

modification, these sources must obtain 

an approval from KDHE. Again, if KDHE 

determines that emissions from a 

constructed or modified source will 

interfere with attainment or 

maintenance of the NAAQS, it cannot 

issue the approval. 

The Kansas regulations give KDHE the 

authority to condition the permit or 

approval upon compliance by the owner 

or operator with any special restrictions 

that are deemed necessary to insure 

compliance with the Kansas Air Quality 

regulations or to otherwise prevent air 

pollution. KAR 28–19–301(e). 

EPA has determined that Kansas’ 

minor new source review (NSR) 

program adopted pursuant to section 

110(a)(2)(C) of the Act regulates 

emissions of ozone and its precursors. 

EPA has also determined that certain 

provisions of the state’s minor NSR 

program adopted pursuant to section 

110(a)(2)(C) of the Act likely do not 

meet all the requirements found in 

EPA’s regulations implementing that 

provision. See 40 CFR 51.160–51.164. 

EPA previously approved Kansas’ minor 

NSR program into the SIP, and at the 

time there was no objection to the 

provisions of this program. See, 40 FR 

15879 (April 8, 1975) and 60 FR 36361 

(July 17, 1995). Since then, the state and 

EPA have relied on the existing state 

minor NSR program to assure that new 

and modified sources not captured by 

the major NSR permitting programs do 

not interfere with attainment and 

maintenance of the NAAQS. 

In this action, EPA is proposing to 

approve Kansas’ infrastructure SIP for 

ozone with respect to the general 

requirement in section 110(a)(2)(C) to 

include a program in the SIP that 

regulates the modification and 

construction of any stationary source as 

necessary to assure that the NAAQS are 

achieved. EPA is not proposing to 

approve or disapprove the state’s 

existing minor NSR program itself to the 

extent that it is inconsistent with EPA’s 

regulations governing this program. EPA 

believes that a number of states may 

have minor NSR provisions that are 

contrary to the existing EPA regulations 

for this program. EPA intends to work 

with states to reconcile state minor NSR 

programs with EPA’s regulatory 

provisions for the program. The 

statutory requirements of section 

110(a)(2)(C) provide for considerable 

flexibility in designing minor NSR 

programs, and EPA believes it may be 

time to revisit the regulatory 

requirements for this program to give 

the states an appropriate level of 

flexibility to design a program that 

meets their particular air quality 

concerns, while assuring reasonable 

consistency across the country in 

protecting the NAAQS with respect to 

new and modified minor sources. 

(3) Kansas also has a program 

approved by EPA which meets the 

requirements of Part C, relating to 

prevention of significant deterioration of 

air quality. Kansas’ implementing rule, 

KAR 28–19–350, incorporates the 

relevant portions of the federal rule, 

40 CFR 52.21 (as of July 1, 2007), by 

reference, including the relevant 

portions of EPA’s ‘‘NSR reform’’ rule 

promulgated by EPA on December 31, 

2002. In this action, EPA is not 

proposing to approve or disapprove any 

state rules with regard to NSR reform 

requirements. EPA will act on NSR 

reform submittals through a separate 

rulemaking process. For Kansas, we 

have previously approved the relevant 

portions of Kansas’ NSR reform rules for 

attainment areas, and as previously 

stated, Kansas currently has no 

nonattainment areas. See 72 FR 29429 

(May 29, 2007). 

The Kansas SIP also contains a 

permitting program for major sources 

and modifications in nonattainment 

areas (see KAR 28–19–16). This section 

is currently not applicable to Kansas 

because all areas of Kansas are currently 

in attainment with the NAAQS. Even if 

it were applicable, the SIP’s discussion 

of nonattainment areas is not addressed 

in this rulemaking (see discussion of the 

section 110(a)(2)(I) requirements for 

nonattainment areas, below). 

With respect to the PSD program, EPA 

notes that the Kansas SIP provides that 

ozone precursors (volatile organic 

compounds (VOCs) and nitrogen oxides) 

are regulated. For example, a stationary 

source that is major for VOCs is also 

major for ozone for purposes of 

permitting in nonattainment areas. KAR 

28–19–16a(r). In addition, a source that 

undergoes a significant net emissions 

increase for VOCs is also considered to 

have undergone a significant net 

emissions increase for ozone for the 

purposes of the Kansas air quality 

regulations. KAR 28–19–200(eee)(6). 

EPA also notes that KAR 28–19–350 

incorporates 40 CFR 52.21(b) as of 2007 

by reference. The regulations at 40 CFR 

52.21(b)(50) specifically state that 

nitrogen oxides and VOCs are 

considered precursors for ozone. 

In further support of EPA’s proposed 

determination regarding the state’s 

authority to apply its PSD program to 

the 1997 ozone standard, EPA notes that 

KAR 28–19–350 also incorporates by 

reference the requirements of 40 CFR 

52.21(k)(1). This provision requires that 

a permit applicant demonstrate that 

allowable emissions increases from a 

new source or modification will not 

cause or contribute to air pollution in 

violation of ‘‘[a]ny national ambient air 

quality standard.’’ EPA believes that this 

provision is sufficiently open-ended to 

authorize KDHE to implement any 

NAAQS upon promulgation by EPA. 

This view is consistent with KDHE’s 

assertion that it has adequate authority 

to meet all of the requirements of 

section 110(a)(2) with respect to the 

1997 ozone standard (which includes 

implementation of the PSD program 

with respect to that standard). 

Finally, we note that on February 22, 

2011, in a separate rulemaking, EPA 

approved the state of Kansas’ revisions 

to its SIP to regulate GHGs under the 

Kansas New Source Review Prevention 

of Significant Deterioration program. 

76 FR 9658. Thus, we have previously 

determined that the Kansas SIP meets 

the PSD requirements with respect to 

GHGs. 

On the basis of the foregoing, EPA 

believes that the Kansas SIP and 

underlying statutory authority are 

adequate to meet the requirements of 

section 110(a)(2)(C) for the 1997 8-hour 

ozone NAAQS. 

(D) Interstate and international 

transport: Section 110(a)(2)(D)(i) 

requires SIPs to include provisions 

prohibiting any source or other type of 

WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS

Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Proposed Rules 17603 

10See footnote 5. 

emissions activity in one state from 

contributing significantly to 

nonattainment in, or interfering with 

maintenance by, another state with 

respect to the NAAQS, or from 

interfering with measures required in 

another state to prevent significant 

deterioration of air quality or to protect 

visibility. 

Kansas addressed the provisions of 

section 110(a)(2)(D)(i), as it relates to the 

1997 ozone and PM standards, in a prior 

SIP submission. EPA approved the 

portion of the Kansas SIP submittal 

relating to section 110(a)(2)(D)(i), on 

March 9, 2007 (72 FR 10608).10

Therefore, the proposed action 

addressed in this notice does not 

include the interstate transport 

elements, nor does this rulemaking 

reopen any aspect of EPA’s prior action 

on the transport elements for Kansas for 

the 1997 standards. 

Section 110(a)(2)(D)(ii) requires that 

the SIP insure compliance with the 

applicable requirements of sections 126 

and 115, relating to interstate and 

international pollution abatement. 

Section 126(a) of the Act requires new 

or modified sources to notify 

neighboring states of potential impacts 

from sources within the state. Although 

Kansas sources have not been identified 

by EPA as having any interstate or 

international impacts under section 126 

or section 115 in any pending actions 

relating to the 1997 ozone standards, the 

Kansas regulations address abatement of 

the effects of interstate pollution. For 

example, KAR 28–19–350(k)(2) requires 

KDHE, prior to issuing any construction 

permit for a proposed new major source 

or major modification, to notify EPA, as 

well as: Any state or local air pollution 

control agency having jurisdiction in the 

air quality control region in which the 

new or modified installation will be 

located; the chief executives of the city 

and county where the source will be 

located; any comprehensive regional 

land use planning agency having 

jurisdiction where the source will be 

located; and any state, Federal land 

manager, or Indian governing body 

whose lands will be affected by 

emissions from the new source or 

modification. (KAR 28–19–16k(b) 

provides similar requirements for 

construction permits issued in 

nonattainment areas.) Finally, we 

believe that Kansas could use the same 

statutory authorities previously 

discussed, primarily KSA 65–3005(a), to 

respond to any future findings with 

respect to the 1997 ozone standards. 

Based on the foregoing, EPA believes 

that Kansas has the adequate 

infrastructure needed to address section 

110(a)(2)(D)(ii) for the 1997 8-hour 

ozone NAAQS. 

(E) Adequate authority, resources, 

implementation, and oversight: Section 

110(a)(2)(E) requires that SIPs provide 

for the following: (1) Necessary 

assurances that the state (and other 

entities within the state responsible for 

implementing the SIP) have adequate 

personnel, funding, and authority under 

state or local law to implement the SIP, 

and that there are no legal impediments 

to such implementation; (2) 

requirements that the state comply with 

the requirements relating to state 

boards, pursuant to section 128 of the 

Act; and (3) necessary assurances that 

the state has responsibility for 

implementation of any plan provision 

for which it relies on local governments 

or other entities to carry out that portion 

of the plan. 

(1) With respect to adequate authority, 

we have previously discussed Kansas’ 

authority to implement the SIP for the 

1997 ozone standards, primarily in the 

discussion of section 110(a)(2)(A). 

Neither Kansas nor EPA has identified 

any legal impediments to 

implementation of those standards. 

With respect to adequate resources, 

KDHE asserts that it has adequate 

personnel to implement the SIP. The 

Kansas statutes provide the Secretary 

the authority to employ technical, 

professional and other staff to effectuate 

the purposes of the Kansas Air Quality 

Act from funds appropriated and 

available for this purpose. See KSA 

Section 65–3006(b). Within KDHE, the 

Bureau of Air and Radiation implements 

the Kansas Air Quality Act. This Bureau 

is further divided into the Air 

Compliance & Enforcement Section, Air 

Operating Permit & Construction 

Section; the Monitoring & Planning 

Section; and the Radiation, Asbestos & 

Right to Know Section. 

With respect to funding, the Kansas 

Legislature annually approves funding 

and personnel resources for KDHE to 

carry out the air program. The annual 

budget process provides a periodic 

update that enables KDHE and the local 

agencies to adjust funding and 

personnel needs. In addition, the Kansas 

statutes grant the Secretary authority to 

establish various fees for sources, to 

cover any and all parts of administering 

the provisions of the Kansas Air Quality 

Act. For example, KSA Section 

65–3008(f) allows the Secretary to fix, 

charge, and collect fees for construction 

approvals and permits (and the 

renewals thereof). KSA Section 65–3024 

grants the Secretary the authority to 

establish annual emissions fees. Fees 

from the construction permits and 

approvals are deposited into the Kansas 

state treasury, while emissions fees are 

deposited into an air quality fee fund. 

Moneys in the air quality fee fund can 

only be used for the purpose of 

administering the Kansas Air Quality 

Act. 

Kansas also uses funds in the nonTitle V subaccounts, along with General 

Revenue funds and EPA grants under, 

for example, sections 103 and 105 of the 

Act, to fund the programs. EPA 

conducts periodic program reviews to 

ensure that the state has adequate 

resources and funding to, among other 

things, implement the SIP. 

(2) Conflict of interest provisions— 

Section 128 

Section 110(a)(2)(E) also provides that 

the state must meet the requirements of 

section 128, relating to representation 

on state boards and conflicts of interest 

by members of such boards. We note 

that this particular provision is not 

related to promulgation or revision of 

any NAAQS, and we have not 

determined that Kansas must show 

specifically that it meets this 

requirement with respect to the ozone 

infrastructure SIP for the 1997 

standards. However, the following 

discussion shows how Kansas generally 

meets the requirements of Section 128. 

Section 128 requires that a SIPimplementing body which approves 

permits or enforcement orders under the 

Act must have at least a majority of 

members who represent the public 

interest and do not derive a ‘‘significant 

portion’’ of income from entities or 

individuals subject to permits and 

enforcement orders under the Act. In 

addition, section 128 requires that 

members of such a body or the agency 

head with similar authorities adequately 

disclose any potential conflicts of 

interest. 

Chapter 46, Article 2 (State 

Governmental Ethics) of the KSA 

specifies ethics requirements for all 

state officers and employees, including 

members of KDHE’s Bureau of Air and 

Radiation. These requirements address 

the requirements contained in section 

128 of the CAA. For instance, KSA 

Section 46–235 states that no state 

officer or employee shall accept 

compensation for performance of 

official duties, other than that to which 

such person is entitled for such 

performance. KSA Section 46–236 states 

that no state officer or employee shall 

solicit any economic opportunity, gift, 

favor, service, etc. from any person 

known to have a special interest in 

influencing the performance of the 

official duties of such officer or 

employee. KSA Section 46–248 requires 

that state officers (such as the 

WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS

17604 Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Proposed Rules 

Secretary), employees and members of 

boards, councils and commissions 

under the jurisdiction of the head of any 

state agency must file ‘‘statements of 

substantial interest,’’ disclosing the 

nature of any financial interest(s) he or 

she may have. 

(3) With respect to assurances that the 

state has responsibility to implement 

the SIP when it authorizes local or other 

agencies to carry out portions of the 

plan, KSA Section 65–3005(a)(8) gives 

the Secretary the authority to encourage 

local units of government to handle air 

pollution problems within their own 

jurisdictions and to provide technical 

and consultative assistance therefor. 

The Secretary may enter into 

agreements with local units of 

government to administer all or part of 

the provisions of the Kansas Air Quality 

Act in the units’ respective 

jurisdictions. In fact, KSA Section 

65–3016 allows for cities and/or 

counties (or combinations thereof) to 

form local air quality conservation 

authorities which will then have the 

authority to enforce air quality rules and 

regulations adopted by the Secretary 

and adopt any additional rules, 

regulations and standards as needed to 

maintain satisfactory air quality within 

their jurisdictions. 

However, the Kansas statutes also 

retain authority in the Secretary to carry 

out the provisions of state air pollution 

control law. KSA Section 65–3003 

specifically places responsibility for air 

quality conservation and control of air 

pollution with the Secretary. The 

Secretary shall then administer the 

Kansas Air Quality Act through the 

Division of Environment. As an example 

of this retention of authority, KSA 

Section 65–3016 only allows for the 

formation of local air quality 

conservation authorities with the 

approval of the Secretary. In addition, 

although these authorities can adopt 

additional air quality rules, regulations 

and standards, they may only do so if 

those rules, regulations and standards 

are in compliance with those set by the 

Secretary. Currently, KDHE oversees the 

following local agencies that implement 

that Kansas Air Quality Act: The City of 

Wichita Department of Environmental 

Services, Johnson County 

Environmental Department, Shawnee 

County Health Agency, and Unified 

Government of Wyandotte County, 

Kansas City-Kansas Health Department. 

Based on the foregoing, EPA believes 

that Kansas has the adequate 

infrastructure needed to address section 

110(a)(2)(E) for the 1997 8-hour ozone 

NAAQS. 

(F) Stationary source monitoring 

system: Section 110(a)(2)(F) requires 

states to establish a system to monitor 

emissions from stationary sources and 

to submit periodic emission reports. 

That section also requires that the state 

correlate the source reports with 

emission limitations or standards 

established under the Act and make 

reports available for public inspection. 

To address this element, KSA Section 

65–3007 gives the Secretary the 

authority to classify air contaminant 

sources which, in his or her judgment, 

may cause or contribute to air pollution. 

The Secretary shall require air 

contaminant emission sources to 

monitor emissions, operating 

parameters, ambient impact of any 

source emissions, and any other 

parameters deemed necessary. 

Furthermore, the Secretary may require 

these emissions sources to keep records 

and make reports consistent with the 

purposes of the Kansas Air Quality Act. 

In addition, KAR 28–19–12(A) states 

that KDHE may make any person 

responsible for the operation of an 

emissions source to make or have tests 

made to determine the rate of 

contaminant emissions from the source 

whenever it has reason to believe that 

existing emissions exceed limitations. 

At the same time, KDHE may also 

conduct its own tests of emissions from 

any source. The Kansas regulations also 

require that all Class I operating permits 

include requirements for monitoring of 

emissions. See KAR 28–19–512(a)(9). 

Kansas makes all monitoring reports 

(as well as compliance plans and 

compliance certifications) submitted as 

part of Class I or Class II permit 

application publicly available. See KSA 

Section 65–3015(a); KAR 28–19– 

204(c)(6). KDHE maintains a database 

with emissions data for more than 900 

stationary source facilities in Kansas. 

See http://www.kdheks.gov/emission/ 

data.html. KDHE uses this information 

to track progress towards maintaining 

the NAAQS, developing control and 

maintenance strategies, identifying 

sources and general emission levels, and 

determining compliance with emission 

regulations and additional EPA 

requirements. Although the Kansas 

statutes allow a person to request that 

some information that is reported to 

KDHE be regarded and treated as 

confidential on the grounds that it 

constitutes trade secrets, emissions data 

is specifically excluded from this 

protection. See KSA Section 65–3015(b). 

EPA believes that Kansas has the 

adequate infrastructure needed to 

address section 110(a)(2)(F) for the 1997 

8-hour ozone NAAQS. 

(G) Emergency authority: Section 

110(a)(2)(G) requires states to provide 

for authority to address activities 

causing imminent and substantial 

endangerment to public health or 

welfare or the environment (comparable 

to the authorities provided in Section 

303 of the Act), including contingency 

plans to implement the emergency 

authorities. 

KSA Section 65–3012(a) states that 

whenever the Secretary receives 

evidence that emissions from an air 

pollution source or combination of 

sources presents an imminent and 

substantial endangerment to public 

health or welfare or to the environment, 

he or she may issue a temporary order 

directing the owner or operator, or both, 

to take such steps as necessary to 

prevent the act or eliminate the practice. 

The Secretary may then follow this up 

by commencing an action in the district 

court to enjoin these acts or practices. 

KAR 28–19–56 allows the director of 

the division of environment to proclaim 

an air pollution alert, air pollution 

warning, or air pollution emergency 

whenever he or she determines that the 

accumulation of air contaminants at any 

sampling location has attained levels 

which could, if such levels are 

sustained or exceeded, threaten the 

public health. KAR 28–19–57 imposes 

restrictions that apply to emission 

sources in the event one of these three 

air pollution episode statuses is 

declared. Any person responsible for the 

operation of a source of air 

contamination adjudged to be of major 

concern with respect to the possible 

implementation of air pollution 

emergency episode control procedures 

either because of the nature or the 

quantity of its emissions must, at the 

request of KDHE, prepare an emergency 

episode plan to be implemented in the 

event that such an episode is declared. 

KAR 28–19–58. 

EPA believes that the Kansas SIP 

adequately addresses section 

110(a)(2)(G) for the 1997 8-hour ozone 

NAAQS. 

(H) Future SIP revisions: Section 

110(a)(2)(H) requires states to have the 

authority to revise their SIPs in response 

to changes in the NAAQS, availability of 

improved methods for attaining the 

NAAQS, or in response to an EPA 

finding that the SIP is substantially 

inadequate to attain the NAAQS. 

KSA Section 65–3005(b) specifically 

states that it is the policy of the state of 

Kansas to regulate the air quality of the 

state and implement laws and 

regulations that are applied equally and 

uniformly throughout the state and 

consistent with that of the Federal 

government. Therefore, the Secretary 

has the authority to promulgate rules 

and regulations to ensure that Kansas is 

and remains in compliance with the 

WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS

Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Proposed Rules 17605 

11We note, however, that Kansas does not 

currently have any areas in the state subject to 

transportation conformity. 

provisions of the Federal CAA. KSA 

Section 65–3005(b)(1). 

As discussed previously, KSA Section 

65–3005(a)(1) provides authority to the 

Secretary to adopt, amend and repeal 

rules and regulations implementing the 

Kansas Air Quality Act. The Secretary 

also has the authority to establish 

ambient air quality standards for the 

state of Kansas. KSA Section 65– 

3005(a)(12). Therefore, as a whole, the 

Secretary has the authority to revise 

rules as necessary to respond to any 

necessary changes in the NAAQS. 

EPA believes that Kansas has the 

adequate authority to address section 

110(a)(2)(H) for the 1997 8-hour ozone 

NAAQS. 

(I) Nonattainment areas: Section 

110(a)(2)(I) requires that in the case of 

a plan or plan revision for areas 

designated as nonattainment areas, 

states must meet applicable 

requirements of Part D of the Act, 

relating to SIP requirements for 

designated nonattainment areas. 

This section is currently not 

applicable to Kansas because all areas of 

Kansas are currently in attainment with 

the NAAQS. Kansas previously had one 

ozone nonattainment area in the Kansas 

portion of the Kansas City metropolitan 

area; however, it was later redesignated 

as being in attainment. Nevertheless, 

EPA notes that the Kansas regulations 

have provisions in place which address 

construction or modification of sources 

in nonattainment areas, and that it has 

regulations in place for control of VOC 

emissions in the former nonattainment 

area. See KAR Section 28–19–16 

through 28–19–16m, and KAR 28–19–61 

through 28–19–77. These regulations are 

contained in the Federally approved 

SIP. 

EPA has not addressed section 

110(a)(2)(I) in its recent infrastructure 

SIP guidance because Part D SIPs are 

due on a different schedule than the 

infrastructure SIP submittal schedule. 

(See, e.g., the infrastructure SIP 

guidance for the revised lead standard, 

73 FR 67034, n. 113, Nov. 12, 2008, and 

the infrastructure SIP guidance for the 

revised NO2 standards, 75 FR 6523, n. 

27, Feb. 9, 2010.) Therefore, this 

proposal does not address section 

110(a)(2)(I). EPA will take action on any 

part D nonattainment plans through a 

separate rulemaking. 

(J) Consultation with government 

officials, Public Notification, PSD and 

visibility protection: Section 110(a)(2)(J) 

requires SIPs to meet the applicable 

requirements of the following CAA 

provisions: (1) Section 121, relating to 

interagency consultation regarding 

certain CAA requirements; (2) section 

127, relating to public notification of 

NAAQS exceedances and related issues; 

and (3) Part C of the Act, relating to 

prevention of significant deterioration of 

air quality and visibility protection. 

(1) With respect to interagency 

consultation, KSA Section 65–3005(14) 

gives the Secretary the authority to 

advise, consult and cooperate with other 

agencies of the state, local governments, 

other states, interstate and interlocal 

agencies, and the Federal government. 

In addition, and as an example, the 

Kansas regulations require that KDHE 

consult with other agencies—such as 

the Kansas Department of 

Transportation, Wyandotte County (KS) 

Health Department, Johnson County 

(KS) Environmental Department 

Missouri Department of Natural 

Resources, Missouri Department of 

Transportation, the Federal Highway 

Administration of the U.S. Department 

of Transportation, among others—for all 

matters pertaining to transportation 

conformity determinations. KAR 28–19– 

801(d).11 Furthermore, as noted in the 

discussion on section 110(a)(2)(D), 

Kansas’ regulations require that 

whenever it receives a construction 

permit application for a new source or 

a modification, KDHE must notify state 

and local air pollution control agencies, 

as well as regional land use planning 

agencies and any state, Federal, or 

Indian land managers whose lands will 

be affected by emissions from the new 

source or modification. See KAR 28–19– 

350(k)(2). 

(2) With respect to the requirements 

for public notification in CAA section 

127, KAR 28–19–56 contains provisions 

that allow the director of the division of 

environment to proclaim an air 

pollution alert, air pollution warning, or 

air pollution emergency status 

whenever he or she determines that the 

accumulation of air contaminants at any 

sampling location has attained levels 

which could, if such levels are 

sustained or exceeded, threaten the 

public health. If this occurs, public 

notification will occur through local 

weather bureaus. However, any of these 

emergency situations can be declared 

even in the absence of issuance of a high 

air pollution potential advisory or 

equivalent advisory from a local 

weather bureau meteorologist, if 

deemed necessary to protect the public 

health. 

In addition, information regarding air 

pollution and related issues, is provided 

on a KDHE Web site, http:// 

www.kdheks.gov/bar/. KDHE also 

prepares an annual report on air quality 

in the state which is available to the 

public on its Web site, at http:// 

www.kdheks.gov/bar/air-monitor/ 

index.html. This link also provides 

information regarding the NAAQS, air 

pollution sources, and health effects of 

poor air quality, as well as access to live 

monitoring data. 

(3) With respect to the applicable 

requirements of Part C, relating to 

prevention of significant deterioration of 

air quality and visibility protection, we 

previously noted in the discussion of 

section 110(a)(2)(C) (relating to 

enforcement of control measures) how 

the Kansas SIP meets the PSD 

requirements, incorporating the Federal 

rule by reference. With respect to the 

visibility component of section 

110(a)(2)(J), we reiterate the statutory 

requirement providing, in relevant part, 

that each plan must meet the 

‘‘applicable requirements’’ of Part C (of 

Title I of the Act) relating to visibility 

protection. We note that the other Part 

C requirements specified in section 

110(a)(2)(J) (applicable requirements 

relating to prevention of significant 

deterioration of air quality), specifically 

relate to the 1997 and 2006 NAAQS (as 

well as other pollutants regulated under 

the CAA), and a state must be able to 

implement those requirements with 

respect to a new or revised NAAQS 

when promulgated. In contrast to the 

PSD program, the visibility protection 

requirements are not directly related to 

the promulgation of, or revision to, a 

NAAQS. While the SIP must 

independently meet the visibility 

protection requirements of Part C by 

virtue of the specific SIP requirements 

in sections 169A and 169B of the Act, 

EPA believes that the visibility 

protection requirements are not 

‘‘applicable requirements’’ within the 

meaning of section 110(a)(2)(J) and that 

the infrastructure SIP is not required to 

be revised with respect to visibility 

protection merely due to promulgation 

of, or revision to, these 1997 ozone 

NAAQS. 

For the reasons stated above, EPA 

believes that Kansas has met the 

applicable requirements of section 

110(a)(2)(J) for the 1997 8-hour ozone 

NAAQS in the state. 

(K) Air quality and modeling/data: 

Section 110(a)(2)(K) requires that SIPs 

provide for performing air quality 

modeling, as prescribed by EPA, to 

predict effects on ambient air quality of 

emissions of any NAAQS pollutant, and 

for submission of such data to EPA 

upon request. 

Kansas has authority to conduct air 

quality modeling and report the results 

of such modeling to EPA. KSA Section 

65–3005(a)(9) gives the Secretary the 

WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS

17606 Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Proposed Rules 

authority to encourage and conduct 

studies, investigations and research 

relating to air contamination and air 

pollution and their causes, effects, 

prevention, abatement and control. As 

an example of regulatory authority to 

perform modeling for purposes of 

determining NAAQS compliance, the 

regulations at KAR 28–19–350 

incorporate the EPA modeling guidance 

in 40 CFR Part 51, App. W for the 

purposes of demonstrating compliance 

or non-compliance with an NAAQS. 

The Kansas statutes and regulations 

also give KDHE the authority to require 

that modeling data be submitted for 

analysis. KSA Section 65–3007(b) gives 

the Secretary the authority to require air 

contaminant emission sources to 

monitor emissions, operating 

parameters ambient impact of any 

source emissions or any other 

parameters deemed necessary. The 

Secretary may also require these sources 

to keep records and make reports 

consistent with the purposes of the 

Kansas Air Quality Act. These reports 

could include information as may be 

required concerning the location, size, 

and height of contaminant outlets, 

processes employed, fuels used, and the 

nature and time periods or duration of 

emissions, and such information as is 

relevant to air pollution and available or 

reasonably capable of being assembled. 

KSA Section 65–3007(c). 

EPA believes that Kansas has the 

adequate infrastructure needed to 

address section 110(a)(2)(K) for the 1997 

8-hour ozone NAAQS. 

(L) Permitting Fees: Section 

110(a)(2)(L) requires SIPs to require 

each major stationary source to pay 

permitting fees to the permitting 

authority to cover the cost of reviewing, 

approving, implementing and enforcing 

a permit. That section provides that the 

fee requirement applies until a fee 

program established by the state 

pursuant to Title V of the Act, relating 

to operating permits, is approved by 

EPA. 

KSA Section 65–3008(f) allows the 

Secretary to fix, charge, and collect fees 

for construction approvals and permits 

(and the renewals thereof). KSA Section 

65–3024 grants the Secretary the 

authority to establish annual emissions 

fees. Fees from the construction permits 

and approvals are deposited into the 

Kansas state treasury, while emissions 

fees are deposited into an air quality fee 

fund. Moneys in the air quality fee fund 

can only be used for the purpose of 

administering the Kansas Air Quality 

Act. 

Kansas’ Title V program, found at 

KAR 28–19–500 to 28–19–564, 

including the fee program addressing 

the requirements of the Act and 40 CFR 

70.9 relating to Title V fees, was 

approved by EPA on January 30, 1996 

(61 FR 2938). Therefore, EPA believes 

that the requirements of section 

110(a)(2)(L) are met. 

(M) Consultation/participation by 

affected local entities: Section 

110(a)(2)(M) requires SIPs to provide for 

consultation and participation by local 

political subdivisions affected by the 

SIP. 

KSA Section 65–3005(a)(8)(A) gives 

the Secretary the authority to encourage 

local units of government to handle air 

pollution problems within their 

respective jurisdictions and on a 

cooperative basis and to provide 

technical and consultative assistance 

therefore. The Secretary may also enter 

into agreements with local units of 

government to administer all or part of 

the provisions on the Kansas Air 

Quality Act in the units’ respective 

jurisdiction. The Secretary also has the 

authority to advise, consult, and 

cooperate with local governments. KSA 

Section 65–3005(a)(14). He or she may 

enter into contracts and agreements 

with local governments as is necessary 

to accomplish the goals of the Kansas 

Air Quality Act. KSA Section 65– 

3005(a)(16). 

Currently, KDHE’s Bureau of Air and 

Radiation has signed State and/or Local 

Agreements with the Department of Air 

Quality from the Unified Government of 

Wyandotte County—Kansas City, 

Kansas; the Wichita Department of 

Environmental Services; the Shawnee 

County Health Department, the Johnson 

County Environmental Department; and 

the Mid-America Regional Council. 

These agreements establish formal 

partnerships between the Bureau of Air 

and Radiation and these local agencies 

to work together to develop and 

annually update strategic goals, 

objectives and strategies for reducing 

emissions and improving air quality. 

In addition, as previously noted in the 

discussion about section 110(a)(2)(J), 

Kansas’ statutes and regulations require 

that KDHE consult with local political 

subdivisions for the purposes of 

carrying out its air pollution control 

responsibilities. 

Therefore, EPA believes that Kansas 

has the adequate infrastructure needed 

to address section 110(a)(2)(M) for the 

1997 8-hour ozone NAAQS. 

IV. What action is EPA proposing? 

EPA proposes to approve the State 

Implementation Plan (SIP) submittal 

from the state of Kansas which 

addresses the requirements of Clean Air 

Act section 110(a)(2) for the 1997 

revisions to the National Ambient Air 

Quality Standards (NAAQS) for ozone. 

As described above, EPA believes that 

Kansas has the required infrastructure to 

address all elements of section 110(a)(2) 

to ensure that the revised ozone 

standards are implemented in the state. 

We are hereby soliciting comment on 

this proposed action. Final rulemaking 

will occur after consideration of any 

comments. 

V. 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 CAA. 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 proposed 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 CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS

Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Proposed Rules 17607 

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. 

Statutory Authority 

The statutory authority for this action 

is provided by Section 110 of the CAA, 

as amended (42 U.S.C. 7410). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Ozone. 

Dated: March 23, 2011. 

Karl Brooks, 

Regional Administrator, Region 7. 

[FR Doc. 2011–7467 Filed 3–29–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[EPA–HQ–OPP–2011–0014; FRL–8867–2] 

40 CFR Parts 156 and 170 

Receipt of Request To Require 

Pesticide Products To Be Labeled in 

English and Spanish 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of receipt of petition and 

request for comment. 

SUMMARY: This notice is to advise the 

public that the Migrant Clinicians 

Network and other farm worker interest 

groups have petitioned EPA to require 

all pesticide labels be available in both 

English and Spanish. The Agency is 

taking public comment on the request 

before responding to the petitioners. 

DATES: Comments must be received on 

or before June 28, 2011. 

ADDRESSES: Submit your comments, 

identified by docket identification (ID) 

number EPA–HQ–OPP–2011–0014, by 

one of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 

• Mail: Office of Pesticide Programs 

(OPP) Regulatory Public Docket (7502P), 

Environmental Protection Agency, 1200 

Pennsylvania Ave., NW., Washington, 

DC 20460–0001. 

• Delivery: OPP Regulatory Public 

Docket (7502P), Environmental 

Protection Agency, Rm. S–4400, One 

Potomac Yard (South Bldg.), 2777 S. 

Crystal Dr., Arlington, VA. Deliveries 

are only accepted during the Docket 

Facility’s normal hours of operation 

(8:30 a.m. to 4 p.m., Monday through 

Friday, excluding legal holidays). 

Special arrangements should be made 

for deliveries of boxed information. The 

Docket Facility telephone number is 

(703) 305–5805. 

Instructions: Direct your comments to 

docket ID number EPA–HQ–OPP–2011– 

0014. EPA’s policy is that all comments 

received will be included in the docket 

without change and may be made 

available on-line at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through regulations.gov or 

e-mail. The regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through 

regulations.gov, your e-mail address 

will be automatically captured and 

included as part of the comment that is 

placed in the docket and made available 

on the Internet. If you submit an 

electronic comment, EPA recommends 

that you include your name and other 

contact information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. 

Docket: All documents in the docket 

are listed in the docket index available 

at http://www.regulations.gov. Although 

listed in the index, some information is 

not publicly available, e.g., 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 in the 

electronic docket at http:// 

www.regulations.gov, or, if only 

available in hard copy, at the OPP 

Regulatory Public Docket in Rm. 

S–4400, One Potomac Yard (South 

Bldg.), 2777 S. Crystal Dr., Arlington, 

VA. The hours of operation of this 

Docket Facility are from 8:30 a.m. to 4 

p.m., Monday through Friday, excluding 

legal holidays. The Docket Facility 

telephone number is (703) 305–5805. 

FOR FURTHER INFORMATION CONTACT: 

Katie Weyrauch, Pesticide Re-evaluation 

Division, Office of Pesticide Programs, 

Environmental Protection Agency, 1200 

Pennsylvania Ave., NW., Washington, 

DC 20460; telephone number: 703–308– 

0166; e-mail address: 

weyrauch.katie@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this action apply to me? 

This action is directed to the public 

in general, and may be of interest to a 

wide range of stakeholders including 

human health, farm worker, agricultural 

and environmental advocacy groups; the 

chemical industry; pesticide users; and 

members of the public interested in the 

sale, distribution, or use of pesticides. 

Since others also may be interested, the 

Agency has not attempted to describe all 

the specific entities that may be affected 

by this action. If you have any questions 

regarding the applicability of this action 

to a particular entity, consult the person 

listed under FOR FURTHER INFORMATION

CONTACT. 

B. What should I consider as I prepare 

my comments for EPA? 

1. Submitting CBI. Do not submit this 

information to EPA through 

regulations.gov or e-mail. Clearly mark 

the part or all of the information that 

you claim to be CBI. For CBI 

information in a disk or CD–ROM that 

you mail to EPA, mark the outside of the 

disk or CD–ROM as CBI and then 

identify electronically within the disk or 

CD–ROM the specific information that 

is claimed as CBI. In addition to one 

complete version of the comment that 

includes information claimed as CBI, a 

copy of the comment that does not 

contain the information claimed as CBI 

must be submitted for inclusion in the 

public docket. Information so marked 

will not be disclosed except in 

accordance with procedures set forth in 

40 CFR part 2. 

2. Tips for preparing your comments. 

When submitting comments, remember 

to: 

i. Identify the document by docket ID 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

ii. Follow directions. The Agency may 

ask you to respond to specific questions 

or organize comments by referencing a 

Code of Federal Regulations (CFR) part 

or section number. 

iii. Explain fully why you agree or 

disagree; suggest alternatives and 

WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS