March 12 , 2013

Mr. Karl Brooks Regional Administrator U.S. Environmental Protection Agency, Region 7 11201 Renner Blvd. Lenexa, KS 66219

Re: Kansas Air Quality State Implementation Plan Revision for the Implementation, Maintenance, and Enforcement o f the 2008 Ozone National Ambient Air Quality Standards (NAAQS)

– Request for Parallel Processing

Dear Mr. Brooks:

In accordance with 40 C.F.R. Part 51 and the federal Clean Air Act (CAA) , and as the designated representative of Governor Sam Brownback, I am formally submitting the proposed Kansas Air Quality State Implementation Plan (SIP) Revision for the Implementation, Maintenance, and Enforcement of the 2008 Ozone (O 3 ) National Ambient Air Quality Standards (NAAQS) for your review. This submittal i s also known as the Kansas Infrastructure SIP for the 2008 O 3 NAAQS.
Pursuant to paragraph 2.3.1 of Appendix V to 40 C.F.R. Part 51, I am requesting that the U.S. Environmental Protection Agency (EPA) propose approval of the proposed SIP revision by use of parallel processing. The Kansas Department of Health and Environment (KDHE) staff understand that all requirements of paragraph 2.1 of Appendix V to 40 C.F.R. Part 51 must be met prior to publication of EPA’s final approval of the Kansas SIP revision

. Public notice for the Kansas Infrastructure SIP revision for the 20 08 Ozone NAAQS was published in the Kansas Register on December 6, 2012. KDHE received no requests for a public hearing. Therefore, the public hearing tentatively scheduled for January 7, 2013, was cancelled after the required 30

- day notification period. KDHE receive d and addressed written comments from EPA and the Sierra Club that appear in the Response to Comments document included in this SIP submittal.
In response to EPA’s commen t regarding conflict of interest requirements, KDHE has provided the specific applicable statutory provisions that meet the requirements of CAA Section 128(a)(2) pursuant to Sectio n 110(a)(2)(E)(ii). KDHE staff believe it is appropr iate to provide public notice of the change to this specific element of the Kansas Infrastructure SIP made subsequent to the former notice and comment period. Public notice for conflict of interest requirements in the Kansas Infrastructure SIP is scheduled for publication in th e Kansas Register on Thursday, March 14, 2013 . For this reason, KDHE is requesting that the EPA propose approval of the Kansas Infrastructure SIP revision for the 2008 Ozone NAAQS by use of parallel processing.

## Kansas Air Quality State Implementation Plan Revision for the Implementation, Maintenance, and Enforcement of the 20 08 Ozone National Ambient Air Quality Standard s (NAAQS)



# January 201 3

Department of Health and Environment Division of Enviro nment Bureau of Air (785) 296

- 60242 (This page intentionally left blank.)3 

### Contents I. Introduction and Background

................................ ................................ ..................... 4
II. Section 110(a)(2)(A) Emission limits and other control measures

............................. 6
III. Section 110(a)(2)(B) Ambient air quality monitoring/data system

............................ 6
IV. Section 110(a)(2)(C) Programs for enforcement, PSD, and NSR

.............................. 7
V. Section 110(a)(2)(D) Interstate and international transport provisions

...................... 9
VI. Section 110(a)(2)(E) Adequate personnel, funding, and authority

........................... 10
VII. Section 110(a)(2)(F) Stationary source monitoring and reporting

........................... 12
VIII. Section 110(a)(2)(G) Emergency episodes

................................ ............................... 12
IX. Section 110(a)(2)(H) Future SIP revisions

................................ ............................... 13
X. Section 110(a)(2)(I) Nonattainment area plan or plan revision under Part D

........... 13
XI. Section 110(a)(2)(J) Consultation with government officials, public notification, PSD, and visibility prot ection

................................ ................................ ................................ .................. 14
XII. Section 110(a)(2)(K) Air quality modeling/data

................................ ....................... 15
XIII. Section 110(a)(2)(L) Permitting fees

................................ ................................ ........ 15
XIV. Section 110(a)(2)(M) Consultation/participation by affected local entities

............. 16 XV. APPENDICES

................................ ................................ ................................ ............. 17 Attachment 1: Supporting Documentation

................................ ................................ ............. Attachment 2: State of Kansas Conflict of Interest Provisions

................................ ...............4 I. Introduction and Background
On March 12, 2008, the U.S. Environmental Protection Agency (EPA) promulgated a revision to the National Ambient Air Quality Standard (NAAQS) for ozone, and on March 27, 2008, published the final rule in the Federal Register [ 73FR16436 ]. EP A finalized revisions to the primary and secondary NAAQS for ozone to provide requisite protection of public health and welfare, respectively. Specifically, in this rulemaking EPA:

• Revised the 8

- hour primary ozone standard to a level of 0.075 parts per m illion (ppm). The previous standard, set in 1997, was 0.08 ppm. Because ozone is measured out to three decimal places, the 1997 standard effectively became 0.084 ppm as a result of rounding.

• Strengthened the secondary 8

- hour ozone standard to the level of 0.075 ppm, making it identical to the revised primary standard. EPA decided to strengthen the secondary ozone standard after concluding that the 1997 secondary standard was not adequate to protect public welfare.

• Made conforming changes to the Air Qualit y Index (AQI) for ozone, setting an AQI value of 100 equal to 0.075 ppm, 8

- hour average, and making proportional changes to the AQI values of 50, 150 and 200. On September 16, 2009, EPA announced it would reconsider its 2008 decision setting national stan dards for ground

- level ozone. EPA proposed reconsidering the standards to ensure they are clearly grounded in science, protect public health with an adequate margin of safety, and are sufficient to protect the environment.
On January 6, 2010, EPA proposed to strengthen the NAAQS for ground

- level ozone, and on January 19, 2010, published the proposed rule in the Federal Register [ 75FR2938 ]. EPA proposed to:

• Strengthen the 8

- hour p rimary ozone standard to a level within the range of 0.060

- 0.070 ppm.

• Establish a distinct cumulative, seasonal secondary standard within the range of 7

- 15 ppm

- hours. On July 11, 2011, EPA submitted a draft final rule, “Reconsideration of the 2008 Ozone Primary and Secondary National Ambient Air Quality Standards,” for review by the Office of Information and Regulatory Affairs (OIRA) under Executive Orders 135 63 and 12866.
On September 2, 2011, a Statement by the President on the Ozone National Ambient Air Quality Standards req uested that the EPA Administrator withdraw the draft ozone NAAQS , fur ther stating that work is already underway to update the 2006 review of the science that will result in the reconsideration of the ozone standard in 2013 and that he didn’t support asking the state and local governments to begin implementing a new standard that will soon be reconsidered. Administrator Jackson followed with a statement that the EPA will revisit the ozone standard in compliance with the Clean Air Act.
On May 21, 2012, base d on 2008

- 2010 air quality monitoring data, the EPA determined that no area in Kansas is violating the 2008 NAAQS for ozone and designated all Kansas counties as “unclassifiable/attainment.” These designations were published in a final rule on May 21, 201 2, and became effective on July 20, 2012. [ 77 FR 30088 ]5 The form for the standard is the 3

- year average of the annual fourth

- highest daily maximum 8

- hour average concentration.

Sec tion 110(a) of the federal Clean Air Act (CAA) requires states to submit an implementation plan to the EPA Administrator that provides for implementation, maintenance, and enforcement of the NAAQS. Section 110(a)(2) lists the elements that are to comprise the S tate I mplementation P lan (SIP).

The elements of Section 110(a)(2) are listed below.
110(a)(2)(A) Emission limits and other control measures 110(a)(2)(B) Ambient air quality monitoring/data system 110(a)(2)(C) Programs for enforcement, PSD, and NSR 110(a)(2)(D) Interstate and international transport provisions 110(a)(2)(E) Adequate personnel, funding, and authority 110(a)(2)(F) Stationary source monitoring and reporting 110(a)(2)(G) Emergency episodes 110(a)(2)(H) Future SIP revisions 110(a )(2)(I) Nonattainment area plan or plan revision under Part D 110(a)(2)(J) Consultation with government officials, public notification, PSD , and visibility protection 110(a)(2)(K) Air quality modeling/data 110(a)(2)(L) Permitting fees 110(a)(2)(M) Cons ultation/participation by affected local entities

When the EPA promulgates a new standard or revises an existing standard, as is the case for ozone , CAA Section 110(a)(1) requires each state to revise their SIP to demonstrate that they have the authorit y and programs needed to implement, maintain, and enforce the standard. Several of the elements listed in Section 110(a)(2) specifically address this requirement and are sometimes compiled and submitted separately in what is referred to as an Infrastructu re SIP. This document is the Kansas Infrastructure SIP for the revised ozone NAAQS promulgated on March 12, 2008

. Most of the infrastructure requirements already are addressed in the comprehensive Section 110(a)(2) SIP submitted by Kansas in 1972 in resp onse to the CAA of 1970. The Kansas revision for the 2008 federal
ozone air quality standard continues to affirm Kansas’ commitment to comply with the Section 110(a)(2) requirements and is incorporated by reference into the overall Kansas State Implementa tion Plan

. The following discussions list the statutory and regulatory requirements by each paragraph in Section 110(a)(2) and demonstrate that the Kansas Department of Health and Environment (KDHE) has the necessary plans, programs, and statutory authori ty to implement the requirements of Section 110 of the federal Clean Air Act (CAA) as they pertain to ozone

.6 II. Section 110(a)(2)(A) Emission limits and other control measures
“(A) include enforceable emission limitations and other control measures, me ans, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements of this chapte r;” [42 U.S.C. 7410(a)(2)(A) 1 ]
The Kansas Department of Health and Environment (KDHE) fulfills the requirements of Section 110(a)(2)(A) through the Kansas Statutes, Kansas Administrative Regulations, permits, and consent orders and agreements. The Secret ary of the KDHE has the power to adopt, amend and repeal rules and regulations implementing air quality standards and to prepare and develop plans for the prevention, abatement, and control of air pollution in Kansas that affects air quality in Kansas, in other states, or both. [K.S.A. 65

- 3005]
The Kansas Air Quality Program, located within the KDHE’s Bureau of Air (BOA), monitors and tracks air pollutants across Kansas to assure that health

- based standards set by the EPA are not exceeded. Data are used t o develop the appropriate regulatory or outreach strategies to reduce air pollution levels and improve air quality. The program is also responsible for issuing air emission permits for facilities and assuring compliance with state and federal regulations for air pollutants. The statutory authority granted at K.S.A. 65

- 3010, Emission Control Requirements, as well as Kansas Air Quality Regulations applicable to individual facilities, fulfills the requirements of Section 110(a)(2)(A).

III. Section 110(a)(2) (B) Ambient air quality monitoring/data system
“(B) provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary to

— (i) monitor, compile, and analyze data on ambient air quality, and (ii) upon request, make such data available to the Administrator; ” [42 U.S.C. 7410(a)(2)(B)]

The Kansas ambient air monitoring network, operated by the KDHE ’s Bureau of Air and local air quality agencies, fulfills the requirements of 110(a)(2)(B). Monitoring data from 2 0 site s across the state are analyzed to determine compliance with federal standards for criteria pollutants and to evaluate air quality trends. The quality assured data are compiled and reported to the EPA.
Each year, in accordance with 40 C.F.R. Part 58, K DHE submits the annual monitoring network plan to EPA for approval. The 20 11

- 201 2 Kansas Ambient Air Monitoring Network Plan was approved by EPA in February 2012

. EPA

- approved monitoring plans can be found on the following EPA website: http://www.epa.gov/region07/air/quality/quality.htm

. The 20 12

- 201 3 Kansas Ambient Air Monitoring Network Plan proposal was posted for public comment through June 30, 2012, and submitted to EPA for review an d approval

. EPA Region 7 has informed KDHE that the proposed monitoring plan, found at

1 The Clean Air Act (CAA) was incorporated into the United States Code (U.S.C.) as Title 42, Chapter 85. Both the CAA and U.S.C. references are provided. See ht tp://www.epa.gov/air/caa for more information.7 http://www.kdheks.gov/bar/air

- monitor/2012

- 2013_Kansas_amb ient_air_monitoring_network_plan.pdf , will be approved. The monitoring plan describes the current Kansas ozone monitoring network, which includes nine monitors located throughout the state.
The collection of emissions monitoring data is authorized by K. S.A. 65

- 3005, and authorization for the public availability of this data is provided by K.S.A. 65

- 3015.
KDHE commits to continue operating an air quality monitoring network that complies with EPA requirements and to provide quarterly reports of compiled a nd analyzed air quality monitoring data to the EPA.

IV

. Section 110(a)(2)(C) Programs for enforcement, PSD, and NSR
“(C) include a program to provide for the enforcement of the measures described in subparagraph (A), and regulation of the modification an d construction of any stationary source within the areas covered by the plan as necessary to assure that national ambient air quality standards are achieved, including a permit program as required in parts C and D of this subchapter;” [42 U.S.C. 7410(a)(2) (C)]

Kansas fulfills the requirements of Section 110(a)(2)(C) with the implementation of a program for the enforcement of control measures associated with the State Implementation Plan and a permit program for stationary sources. KDHE’s Bureau of Air im plements and manages these programs through its Air Compliance and Enforcement Section and its Air Permitting Section in coordination with the Bureau of Environmental Field Services district offices.
The Air Compliance and Enforcement Section (ACES) is re sponsible for determining compliance and, if needed, issuing enforcement actions due to non

- compliance as authorized by K.S.A. 65

- 3011. Air emissions sources in Kansas are subject to state and federal air quality regulations. Depending on the type and qu antity of emissions, sources are required to obtain permits and conduct activities such as testing, monitoring, recordkeeping, and reporting to demonstrate compliance as authorized by K.S.A. 65

- 3008 and 65

- 3008b. The ACES staff uses a combination of inspe ctions, performance test evaluations, report reviews, technical assistance, and enforcement actions to ensure facilities comply with the applicable air quality regulations and permits. Staff from KDHE’s district offices, as well as the cooperating local a gencies, conduct inspections and investigate complaints, as authorized by K.S.A. 65

- 3009, and forward the results to the ACES staff for review and response. The ACES staff oversees performance tests through approval of proposed test plans, on

- site observa tion of performance tests, and review and approval of the reported test results. Periodic reports are evaluated for compliance. The ACES staff also provides public outreach and compliance assistance. When a source violates an air quality standard, the A CES staff issues a notice of violation, works with the source to return them to a compliant regulatory status , and pursues formal enforcement action when necessary as authorized by K.S.A. 65

- 3011. Information about the compliance and enforcement program i s available at http://www.kdheks.gov/air

- permit/indexCE.html

. The Air Permitting Section (APS) is responsible for reviewing air quality control permit applications and issuing permits for air e missions in accordance with state and federal air quality regulations. The state authority is granted at K.S.A. 65

- 3008. The APS issues construction permits and approvals prior to construction or modification. The construction permit application allows the APS to determine if or what8 requirements need to be established for the facility (or emission source) when equipment is constructed or modified. Whether a construction permit or an approval is required depends on the potential

- to

- emit (PTE) of the pro posed construction or modification. The proposed construction or modification is reviewed to assure that potential emissions from the new or modified equipment will comply with the requirements of state and federal regulations. The construction permit pr ogram is also the vehicle by which Kansas implements several other federal programs that have been delegated to the state and are applic able to new or modified sources. These include the New Source Performance Standards (NSPS), 40 C.F.R. Part 60, and the National Emission Standards for Hazardous Air Pollutants (NESHAP), 40 C.F.R. Parts 61 and 63. Part 63 is based on maximum achievable control technology and is usually referred to as the MACT regulations.
The Air Permitting Section also issues operating p ermits. The PTE of the facility determines the type of operating permit required, if any. The two types of operating permits are Class I (also known as a Title V permit) and Class II (also known as a federally enforceable state operating permit). The Ka nsas Class I operating permit program satisfies the requirements of the federal Title V program and closely parallels the requirements of 40 C.F.R. Part 70. A Class I operating permit is required for major sources of air pollution and provides a complete listing of all air quality regulatory requirements in one document. The Class II operating permit program provides a method to reduce the PTE of a source below the major source thresholds and thereby allows the source to operate without a Class I operatin g permit. Information about the permits program is available at http://www.kdheks.gov/air

- permit/indexPrmt.html

. The Department of Air Quality of the Unified Government of Wyandotte County assists in the permitting process by issuing construction and operating permits in Wyandotte County.
Federally approved Kansas air quality regulations K.A.R. 28

- 19

- 300 through 304 apply to preconstruction permits and approvals, K.A.R. 28

- 19

- 350 applies to prevention of significant deterioration (PSD), and K.A.R. 28

- 19

- 500 et seq. apply to operating permits. Kansas adopted the requirements of the federal Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule as published on Jun e 3, 2010, in the Federal Register . [ 75 FR 31514 ] The Kansas regulations, K.A.R. 28

- 19

- 200a and K.A.R. 28

- 19

- 350, were published as final regulations in the Kansas Register on Nov ember 11, 2010, and became effective on January 2, 2011. [ Kansas Register Vol. 29, No. 45, pages 1634

- 1636 ] A Kansas SIP revision reflecting these changes was submitted in a final version to EPA on December 23, 2010. EPA published its approval of the SIP revision in the Federal Register on February 22, 2011 . [ 76 FR 9658 ] In the fina l action, EPA stated: “The SIP revision Kansas submitted on December 23, 2010, (1) provides the state with the authority to regulate GHGs under its PSD program, and (2) establishes appropriate emissions thresholds for determining PSD applicability with re spect to new or modified GHG

- emitting stationary sources in accordance with EPA’s Tailoring Rule. EPA has made the determination that the December 23, 2010, SIP revision is approvable because it is in accordance with the CAA and EPA regulations, including regulations pertaining to PSD permitting for GHGs.” [76 FR 9663] The most recent amendments to K.A.R. 28

- 19

- 350 maintain the alignment of the Kansas PSD regulation with the federal PSD regulation codified at 40 C.F.R. 52.21. These amendments became effe ctive on December 28, 2012, and are being submitted in February for EPA approval into the Kansas SIP. 2

2 Documentation of the amendment to K.A.R. 28

- 19

- 350 is provided as “Attachment 1 Supporting Documentation” to this Infrastructure SIP submittal document.9 The Kansas Department of Health and Environment (KDHE) commits to continued enforcement of control measures for which it has jurisdiction and to the con tinued oversight of local agency permitting and enforcement programs with respect to measures required by the CAA.

V

. Section 110(a)(2)(D) Interstate and international transport provisions

“ (D) contain adequate provisions

— (i) prohibiting, consistent wi th the provisions of this subchapter, any source or other type of emissions activity within the State from emitting any air pollutant in amounts which will

— (I) contribute significantly to nonattainment in, or interfere with maintenance by, any other Stat e with respect to any such national primary or secondary ambient air quality standard,

or (II) interfere with measures required to be included in the applicable implementation plan for any other State under part C of this subchapter to prevent significant deterioration of air quality or to protect visibility, (ii) insuring compliance with the applicable requirements of sections 7426 and 7415 of this title (relating to interstate and international pollution abatement); ” [42 U.S.C. 7410(a)(2)(D)]
Currently, Kansas is designated unclassifiable/attainment for the 2008 ozo ne NAAQS. Appendix A of this document shows the map of final nonattainment areas across the country for the 2008 ozone standard , with designations effective as of July 20, 2012. Areas surrounding Kansas, such as St. Louis

- MO, Denver

- CO, and Dallas

- TX, th at have been designated nonattainment are not expected to be impacted by Kansas emissions as demonstrated in EPA’s modeling for the Cross

- State Air Pollution Rule (CSAPR or Transport Rule). 3 In the Transport Rule, Kansas wa s identified as interfering with maintenance for the 1997 ozone standard in Allegan County, Michigan. However, Allegan County and all of Michigan have since been designated as unclassifiable/attainment for the 2008 ozone standard.
On November 19, 2012, EPA issued a memorandum regardi ng “Next Steps for Pending Redesignation Requests and State Implementation Plan Actions Affected by the Recent Court Decision Vacating the 2011 Cross

- State Air Pollution Rule.” In this memo, Gina McCarthy noted that “the recent CSAPR decision made certain holdings regarding the requirement for states to submit SIPs addressing the provisions of Clean Air Act section 110(a)(2)(D)(i)(I), the good neighbor provision that ad dresses upwind emissions linked to NAAQS attainment problems in downwind states. The decision states that a SIP cannot be deemed deficient for failing to meet the good neighbor obligation before the EPA quantifies that obligation. Gina McCarthy further d eclared that “at this time the EPA does not intend to make findings that states failed to submit SIPs to comply with Section 110(a)(2)(D)(i)(I). To the extent states may inquire about their obligations to submit SIPs addressing this provision, we believe it would be appropriate to convey that at this time we do not intend to make such findings with respect to section 110(a)(2)(D)(i)(I).” Therefore,

3 Information regarding the Cross

- State Air Pollution Rule (CSAPR) is available on EPA’s website: http://www.epa.gov/airquality/transport/index.html . Kansas was not included in the final CSAPR with respect to ozone, and a SIP call has yet t o be finalized. On August 21, 2012, the U.S. Court of Appeals D.C. Circuit vacated and remanded CSAPR. EPA requested rehearing en banc on October 5, 2012. Rehearing was denied on January 24, 2013.10 section 110(a)(2)(D)(i)(I) is not addressed at this time. 4 This submittal is intended to satisfy section 11 0(a)(2)(D)(i)(II) and (D)(ii).
KDHE conducted an analysis of actual NO x and VOC emissions inventory data for 2007 to 2011 t o demonstrate the declining contribution of Kansas NO x and VOC emissions, both precursors to ozone

. Actual point source NO x emiss ions decreased from 134,628 tons in 2007 to 93,009 tons in 2011. Kansas point source NO x emissions are projected to decrease to around 75,773 tons by 2016. Actual point source VOC emissions decreased by about 5,000 tons between 2007 and 2011 , with emissi ons level during the 2009

- 2011 period

. There are no significant changes expected for Kansas point source VOC emissions. See Appendix B for details of this analysis for NO x and VOC

.
Kansas ’ federally approved Prevention of Significant Deterioration ( PSD ) permitting program applies statewide, with all counties designated unclassifiable/attainment for the 2008 ozone NAAQS , to ensure that new and modified sources of pollution do not cause or contribute to violations of air quality standards

. Section 126(a) of the Clean Air Act (CAA) directs that the SIP include provisions requiring a new or modified source to notify neighboring states of potential impacts from the source. Kansas fulfills this requirement with a regulatory provision in K.A.R. 28

- 19

- 350(k)(2) that is consistent with 40 C.F.R. 51.166(q)(2)(iv).
On December 27, 2011, EPA published final approval of the State of Kansas Regional Haze Plan, submitted in November 2009, with supplemental information provided in December 2011. [ 76 FR 80754 ] All associated Regional Haze Plan documents are available in the regulatory docket: http://www.regulat ions.gov/#!docketDetail;D=EPA

- R07

- OAR

- 2011

- 0675

. EPA determined that the plan submitted by Kansas satisfies the requirements of the Clean Air Act (CAA) for states to prevent any future and remedy any existing anthropogenic impairment of visibility in man datory Class I areas caused by emissions of air pollutants located over a wide geographic area. The State of Kansas aims to provide a five

year report by November 9, 2014, and a SIP revision by July 31, 2018, and every ten years after.

V I

. Section 1 10(a)(2)(E) Adequate personnel, funding, and authority
“(E) provide (i) necessary assurances that the State (or, except where the Administrator deems inappropriate, the general purpose local government or governments, or a regional agency designated by t he State or general purpose local governments for such purpose) will have adequate personnel, funding, and authority under State (and, as appropriate, local) law to carry out such implementation plan (and is not prohibited by any provision of Federal or St ate law from carrying out such implementation plan or portion thereof), (ii) requirements that the State comply with the requirements respecting State boards under section 7428 of this title, and (iii) necessary assurances that, where the State has relied on a local or regional government, agency, or instrumentality for the implementation of any plan provision, the State has responsibility for ensuring adequate implementation of such plan provision;” [42 U.S.C. 7410(a)(2)(E)]

4 EPA has not completed its Transport SIP guidance estab lishing technical requirements for demonstrating whether or not a state has transport impacts on downwind states. KDHE will review the guidance once it becomes available and apply as necessary should there be an EPA determination of significant contributi on by Kansas with respect to the 2008 ozone standard.11 The Kansas Department of Health and Environment (KDHE) has adequate personnel, funding, and authority to fulfill the requirements of the SIP. As stated above in “II. Section 110(a)(2)(A) E mission limits and other control measures” of this document , KDHE fulfills the requirements of the SIP through the Kansas Statutes, Kansas Administrative Regulations, permits, and consent orders and agreements

. The Bureau of Air (BOA) program’s budget is funded by Title V and non

- Title V fees authorized by K.S.A. 65

- 3024 , permit fees authorized by K.S.A. 65

- 3008, EPA grants authorized under Sections 103 and 105 of the Clean Air Act (CAA) , and the State General Fund

. 5
The Kansas Legislature annually app roves KDHE’s funding and personnel resources for carrying out the programs of the SIP. The annual budget process provides a periodic update that enables KDHE and the local agencies to adjust funding and personnel needs. While it is not legally possible f or KDHE and the local agencies to provide specific commitments about future budgets (funding and staff resources), the annual budget appropriations process undertaken by the Kansas State Legislature enables KDHE to present a request for resources required to meet the mandates of the CAA. Since KDHE’s CAA

- mandated programs have received state funding for more than 40 years, and since there is consistent public support in Kansas for providing clean air, it is reasonable to assume that implementation of the C AA mandates in Kansas will continue to obtain the necessary funding.
The majority of the BOA budget currently consists of dedicated funds that are collected from regulated emission sources and can only be used for air pollution control. These dedicated fees are periodically adjusted in order to provide necessary funding for the BOA programs. The last such fee adjustment was an increase to K.A.R. 28

- 19

- 202 Emissions Fee on November 5, 2010. Collectively, the BOA and local agency budgets adequately supp ort the Kansas air program with about 53 full

- time equivalent staff positions.
Kansas Statutes from Chapter 46, Article 2, specify conflict of interest requirements for members of KDHE. These requirements specifically prohibit all state and local public officials from participating in governmental decisions for which they have a substantial financial interest as defined at K.S.A. 46

- 229. The statutes found at K.S.A. 46

- 247 et seq. require the Secretary of KDHE to file a statement of substantial interests

. Specifically, the following statutes fulfill the CAA Section 128 (42 U.S.C. 7428) requirements referenced in Section 110(a)(2)(E) for disclosure of financial interests by the “head of an executive agency” responsible for issuing permits and enforcement orders:

46

- 247. Individuals required to file written statements of substantial interests; exception. (c) State officers, employees and members of boards, councils and commissions under the jurisdiction of any state agency who are listed as designees b y the head of a state agency pursuant to K.S.A. 46

- 285, and amendments thereto.

46

- 221. State officer or employee, candidate and state officer elect defined.

46

- 229. “Substantial interest” and “client or customer” defined.
These statutes are provide d as Attachment 2 Kansas Conflict of Interest Provisions

.

5 The term “non

- Title V fee” refers to those fees collected under the provisions of K.S.A. 65

- 3024 and K.A.R. 28

- 19

- 202 that are used to implement the provisions of the Kansas Air Quality Act that invol ve clean air act requirements other than Title V.12 The KDHE oversees local agencies to implement the Kansas Air Quality Act (Kansas Statutes Chapter 65, Article 30) and to provide air quality protection services. Partner agencies include:

• City o f Wichita Department of Environmental Services

• Johnson County Environment Department

• Unified Government of Wyandotte County and Kansas City

- Kansas Health Department.
The KDHE commits to actively maintain programs for the enforcement of control measures in cluded in the approved State Implementation Plan (SIP) and measures required by the Clean Air Act (CAA).

V I I. Section 110(a)(2)(F) Stationary source monitoring and reporting
“(F) require, as may be prescribed by the Administrator

— (i) the installatio n, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources to monitor emissions from such sources, (ii) periodic reports on the nature and amounts of emissions and emissions

- related data from such sources, and (iii) correlation of such reports by the State agency with any emission limitations or standards established pursuant to this chapter, which reports shall be available at reasonable times for public inspection;” [42 U.S .C. 7410(a)(2)(F)]

The KDHE maintains a database with emissions inventory data for more than 900 stationary source facilities in Kansas. The inventory includes NO X and VOC emissions data. KDHE posts a summary report of emissions from stationary sources , both major and minor, for the National Emissions Inventory Year on its website ( http://www.kdheks.gov/emission/data.html ). The data are reported to the EPA every three years. Emissions monitoring data provide a basis for determining whether facilities meet established performance standards. KDHE uses this data to identify sources and emission levels, determine compliance with regulations and other enforceable requirements, develop control and mai ntenance strategies, and analyze progress in maintaining the NAAQS.

KDHE commits to its continued oversight of the stationary source monitoring requirements and to the reporting of data collected by such monitoring activities as authorized respectively by K.S.A. 65

- 3007 and 65

- 3015.

V I II. Section 110(a)(2)(G) Emergency episodes
“(G) provide for authority comparable to that in section 7603 of this title and adeq uate contingency plans to implement such authority;” [42 U.S.C. 7410(a)(2)(G)]
Kansas meets the requirements of Section 110(a)(2)(G), which requires states to provide for authority to address activities causing imminent and substantial endangerment to pub lic health or welfare or to the13 environment and adequate contingency plans to implement such authority. This authority is provided to the KDHE Secretary in the Kansas air quality statutes, specifically K.S.A. 65

- 3012 and 65

- 3005.
Upon receipt of eviden ce that emissions present an imminent and substantial endangerment to public health or welfare or to the environment or that a violation is imminent or has occurred , the Secretary is granted authority by K.S.A. 65

- 3012 to direct the source owner or operato r to take the necessary steps to prevent the act or eliminate the practice. The Secretary is authorized by K.S.A. 65

- 3005 to promulgate implementing regulations and to prepare and develop plans for the prevention, abatement, and control of air pollution, including emergency episodes.
Kansas’ Air Pollution Emergency Plan includes the r egulations found at K.A.R. 28

- 19

- 55 et seq. that address excessive buildup of air contaminants during air pollution episodes in Kansas. K.A.R. 28

- 19

- 55 addresses general pro visions; K.A.R. 28

- 19

- 56 details episode criteria, specifically addressing SO 2 , NO 2 , PM 10 , CO, and ozone; K.A.R. 28

- 19

- 57 specifies emission reduction requirements; and K.A.R. 28

- 19

- 58 specifies requirements for emergency episode plans. Emergency episode plans are required in areas that record pollutant concentrations in excess of threshold levels specified in 40 CFR 51.150. Regardless of the nature and scope of the emergency episode, the Secretary of KDHE has the authority to respond as necessary and app ro p riate

. KDHE commits to submit any necessary revisions to its Air Pollution Emergency Plan upon adoption of amended guidance by EPA in future.

IX

. Section 110(a)(2)(H) Future SIP revisions
“(H) provide for revision of such plan

— (i) from time to time as may be necessary to take account of revisions of such national primary or secondary ambient air quality standard or the availability of improved or more expeditious methods of attaining such standard, and (ii) except as provided in paragraph (3)(C), w henever the Administrator finds on the basis of information available to the Administrator that the plan is substantially inadequate to attain the national ambient air quality standard which it implements or to otherwise comply with any additional requirem ents established under this chapter;” [42 U.S.C. 7410(a)(2)(H)]
The Kansas Department of Health and Environment (KDHE) is submitting a revised State Implementation Plan (SIP) that responds to revised air quality standards for ozone . As authorized by K.S. A. 65

- 3005(a)(5), KDHE commits to submit SIP revisions whenever revised air quality standards are promulgated by the EPA or when existing provisions are found to be inadequate.

X. Section 110(a)(2)(I) Nonattainment area plan or plan revision under Part D
“(I) in the case of a plan or plan revision for an area designated as a nonattainment area, meet the applicable requirements of part D of this subchapter (relating to nonattainment areas);” [42 U.S.C. 7410(a)(2)(I)]14 As per EPA guidance, nonattainment are a plans required under part D are required on a different schedule from the Section 110 infrastructure elements and will be reviewed and acted upon through a separate process. Currently, there are no nonattainment areas for the 2008 ozone NAAQS in Kansa s. All counties in the state are designated unclassifiable/attainment. The Kansas City area, Johnson and Wyandotte counties, remains a maintenance area for the 1997 ozone standard.

X I

. Section 110(a)(2)(J) Consultation with government officials, public notification, PSD, and visibility protection
“(J) meet the applicable requirements of section 7421 of this title (relating to consultation), section 7427 of this title (relating to public notification), and part C of this subchapter (relating to prevention of significant deterioration of air quality and visibility prote ction);” [42 U.S.C. 7410(a)(2)(J)]
Section 121 requires a satisfactory process of consultation with general purpose local governments, designated organizations of elected officials of local governments, and any affected federal land manager in carrying ou t CAA requirements. The Secretary of KDHE is authorized by K.S.A. 65

- 3005(a)(8) to provide consultation assistance, and KDHE is required by K.A.R. 28

- 19

- 350(k) to consult with local governments, officials, and federal land managers before the issuance of a permit under the PSD program.
The Bureau of Air’s rulemaking process for public participation fulfills the requirements of 110(a)(2)(J) and is conducted under the statutory authority at K.S.A. 77

- 421. KDHE commits to maintaining a process of consultat ion with parties designated under CAA Section 121 (42 U.S.C. 7421)

. The State’s rulemaking process includes:

• Department approvals

• Review and approval by the Secretary of Administration and Attorney General

• Notification to municipalities, counties, school boards, and neighboring states

• Public hearings and comments

• Filing regulations with the Secretary of State

• Publication in the Kansas Register

• Review by Citizens Regulatory Review Board

• Review by Joint Committee on Administrative Rules and Regulations

Sec tion 127 (42 U.S.C. 7427) requires measures that will be effective to notify the public during any calendar year on a regular basis of instances or areas in which any air quality standard is exceeded or was exceeded during any portion of the preceding cale ndar year, to advise the public of the health hazards associated with such pollution, and to enhance public awareness of measures that can be taken to prevent such standards from being exceeded.
KDHE maintains air quality data and other information on its website, which is available to the public. ( http://www.kdheks.gov/bar/air

- monitor ) Information that can be found on the website includes:15 • An overview of air quality

• Information regarding the NAAQS

• Air pollution sources

• Health effects of poor air quality

• How to find out about Kansas air quality
This website also provides links to the Kansas Air Quality Monitoring Network and to AIRNow ( http://www.airnow.gov ) for live monitoring data. Also available to the public is the KDHE News Release website ( http://www.kdheks.gov/news/index.html ) that posts air quality health advisories when necessary.

KDHE commits to maintai ning a public information and education program that satisfies the requirements of Section 127.
KDHE commits to ensuring that PSD regulations are implemented in Kansas. (See also the PSD discussion in “ IV. Section 110(a)(2)(C) Programs for enforcement, P SD, and NSR” of this document.) The Kansas PSD program meets the requirements to protect visibility with the adoption of federal regulation 40 C.F.R. 52.21 in K.A.R. 28

- 19

- 350. EPA has finalized approval of the Kansas Regional Haze SIP as published in th e Federal Register on December 27 , 2011. [ 76 FR 80754 ] Legal authority to implement and develop the PSD program and the Regional Haze SIP exists under K.S.A. 65

- 3005.

X I I. Se ction 110(a)(2)(K) Air quality modeling/data
“(K) provide for

— (i) the performance of such air quality modeling as the Administrator may prescribe for the purpose of predicting the effect on ambient air quality of any emissions of any air pollutant for w hich the Administrator has established a national ambient air quality standard, and (ii) the submission, upon request, of data related to such air quality modeling to the Administrator;” [42 U.S.C. 7410(a)(2)(K)]
Authority to conduct air dispersion model ing for ambient air quality analyses is provided to KDHE by K.S.A. 65

- 3005(a)(9). Air dispersion modeling is used to predict ground level ambient air concentrations of pollutants for comparison to air quality standards. The preconstruction permitting pro cess uses the results of such modeling to determine the potential impacts of pollution from a proposed source before the source is constructed or modified.
KDHE’s air quality modeling work is conducted in accordance with both EPA ’s and KDHE’s currently ap proved modeling guidance and protocols and with Appendix W of 40 C.F.R. Part 51. KDHE commits to the continued use of air quality models in accordance with current guidance and protocols and to the continued submittal of data and modeling results to EPA.

X I II. Section 110(a)(2)(L) Permitting fees
“(L) require the owner or operator of each major stationary source to pay to the permitting authority, as a condition of any permit required under this chapter, a fee sufficient to cover

— (i) the reasonable cos ts of reviewing and acting upon any application for such a permit, and16 (ii) if the owner or operator receives a permit for such source, the reasonable costs of implementing and enforcing the terms and conditions of any such permit (not including any court costs or other costs associated with any enforcement action), until such fee requirement is superseded with respect to such sources by the Administrator’s approval of a fee program under subchapter V of this chapter;” [42 U.S.C. 7410(a)(2)(L)]

The Title V fee program, part of the operating permit program that is discussed in “IV. Programs for enforcement, PSD, and NSR” of this document, is adequate to meet the requirements of Section 110(a)(2)(L). This program includes permit fees and emissions fees for major stationary sources. In addition to fees directly related to the implementation and enforcement of the Kansas Title V Program, KDHE assesses and collects construction permit and approval fees and other non

- Title V fees. The Kansas air program’s annu al emissions fee regulation, K.A.R. 28

- 19

- 202, was last amended on November 5, 2010, implementing a change in fee rate and formulation as necessary to sustain the Kansas air program. The Kan sas Department of Health and Environment (KDHE) commits to contin ue to implement major stationary source permit and emissions fee regulations as authorized by K.S.A. 65

- 3008 and 65

- 3022 through 65

- 3024.

XI V

. Section 110(a)(2)(M) Consultation/participation by affected local entities
“(M) provide for consultation and pa rticipation by local political subdivisions affected by the plan.” [42 U.S.C. 7410(a)(2)(M)]
KDHE’s Bureau of Air has signed State and/or Local Agreements with the following:

• Department of Air Quality, Unified Government of Wyandotte

- Kansas City, Kansas

• Wichita Department of Environmental Services

• Johnson County Environmental Department

• Mid

- America Regional Council These agreements establish formal partnerships between the Bureau of Air and local agencies who work together to develop and annually update strategic goals, objectives, and strategies for reducing emissions and improving air quality. In addition, public participation in the rulemaking process is conducted in accordance with EPA regulations at 40 C.F.R. Part 51, Subpart F, and involves the fol lowing entities: League of Kansas Municipalities , Kansas Association of Counties , and Kansas Association of School Boards

. This participation enhances the requirements of 110(a)(2)(M).
KDHE commits to maintaining a consultation process with local politi cal subdivisions affected by the SIP as authorized by K.S.A. 65

- 3016.17 

# XV. APPENDI CES1819 APPENDIX A
Figure A 1.

http://www.epa.gov/gro undlevelozone/designations/2008standards/final/finalmap.htm20 APPENDIX B
Figure B 1

. Total Kansas Point Source NOx Emissions, 2007-2011 Reported and 2012-2016 [Estimated]

0 20,000 40,000 60,000 80,000 100,000 120,000 140,000

2007 2008 2009 2010 2011 [2012] [2013] [2014] [2015] [2016]tons NOx

Total tons NOx

– point sources

2007 2008 2009 2010 2011 [2012] [2013] [2014] [2015] [2016] 134,628 107,410 97,824 100,655 93,009 88,081 80,565 79,873 75,873 75,773 Figure B 2

. Total Estimated Kansas Anthropogenic NOx Emissions, 2007-2016

0 50,000 100,000 150,000 200,000 250,000 300,000 350,000

2007 2008 2009 2010 2011 2012 2013 2014 2015 2016tons NOx Nonroad Onroad Nonpoint Point

Total tons NOx

- all source categories 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 Point 134,628 107,410 97,824 100,655 93,009 88,081 80,565 79,873 75,873 75,773 Nonpoint 54,695 55,127 55,549 56,226 56,583 57,077 57,575 58,078 58 ,585 59,096 Onroad 78,031 78,649 79,249 80,216 80,725 81,430 82,141 82,858 83,581 84,310 Nonroad 41,663 41,992 42,313 42,829 43,101 43,477 43,857 44,239 44,626 45,01521 APPENDIX B
Determining Anthropogenic NOx E missions for 2007

- 2016

Point source em issions of NO x from 2007 through 2011 were taken from the Kansas Emissions Inventory. Sources included Title V and synthetic minor sources. Projected emissions estimates for 2012 through 2016 were made by querying the i

- STEPS database for recent constructi on permits, as well as for recent changes in program status (operating vs. permanently closed) and changes in class code (Title V vs. synthetic minor vs. true minor). For each facility found via these queries where significant changes in NOx occurred, NOx emission decreases (for emissions reduction projects) and increases (for new emissions sources) were logged under the expected year of completion. For projects in 2012 where construction completion month was known, emissions estimates were prorated. Note t hat the Sunflower Electric

- Holcomb Unit 2 project was not included due to uncertainty with both its current litigation and eventual financing.
The remaining source categories of anthropogenic NOx emissions

— nonpoint and mobile (onroad and nonroad)

— are gi ven estimates once every three years in the National Emissions Inventory (NEI). The last complete NEI was conducted in 2008, and those values provided the basis for the estimates made in this document. The single modification made to the 2008 NEI values wa s to grow them based on the growth in the general Kansas population. For years 2012 to 2016, where the annual growth is unknown, the average annual growth for 2008

- 2011 (0.87%) was used.
Figure B 3

.

Point source emissions of NO x from 2007 through 2011 w ere taken from the Kansas Emissions Inventory. Sources included Title V and synthetic minor sources. No significant changes are expected for point source VOC emissions in Kansas.

# Attachment 1 : Supporting DocumentationHearings 

### Kansas Register 1125

E<:onomic Impact:
e proposed regulations are not anlicipat to result in ddilional costs to KDHE, other state ag cies or the

, .. pri ate sector because the impacted facili · s are already
su ect to the costs associated with .the urrent federal st ds that KDHE is proposing to adfpt by reference. En onmental Benefit: · / part of its adoption of the fedeJk!**re~lions,** the EPA dertook screniliic studies to <jeter:mine the health effec**ofvari~usHAPs.** These amen¢ments are necessary to pro. t public health, to**main~!** · the state's authority under ·sling delegation agreem ts to administer the federal egulations, to ensure tha the Kansas air quality regulali are current and co istent with the federal requir nts, and to eliminate dual regulatory structure be en the EPA and KD

.

The lim period between th publication of this notice and the sc eduled hearing nsiitutes a 60-day public comment p iod for the purp se of receiving written public corrunen on the propo'jl'd regulatory action. All interested par s may**submiy~itten·comments** prior to 5 p.m. Friday,**ovember~,** Miles Stotts, KDHE, Bureau of Air, 1000 S.

. Jackson, 'te 310, Topeka, 66612, by fax to 785-296-745 or by em · to mstotts@kdheks.gov. During the hearing, all inter ted parties will be given a reasonable oppor 'ty to esent their conunents orally on the proposed re ato!Ji action as well as an opportunity to subrult their w 'tt:rl, comments. In. order to give all parties an oppor 'ty 1 to present their conunents, it may be necessary to req

- fo each participant to limit any oral presentation to an a ropriate time frame.

Copies of the pr osed regulations and the corresponding**economi~** fD pact and environmental benefit statement may be o!fta · ed from the KDHE Bureau of Air by contacting Mllefo St at 785-296-1615 or mstotts@ kdheks.gov.**Copie~** also y be viewed at the following locations: I I • Department 

## of Air Qu 'ty, Unified Government of

Wyandotte Cj>unty

- as City, Kansas, Health Department, p19 Ann A e., Kansas City, Kansas ·
• Johnson couj>ty Enviro ntal Department,

..

11811 S.**S~et,** Suite 2700 Olathe

• Curtis State ffice Building\1000 S.W. Jackson,

Suite 310, T, peka \

• KDHE Norteast District

### Offi~, 800 W. 24th St.,

Lawrence

.. \ .

• KDHE Norjhwest District Office12301 E. 13th St.,

Hays 

## i · \

• KDHE Norjh Central District offi'ae.,. 2501 Market

Place, Suit9 D, Salina \

• KDHE**Sou~** Central District Office, 130 S. Maiket,

Suite 6050, 1"fichita

• KDHE Sout\>east District Office, 1500 W. 7th St.,

Olanute· 1

• KDHE Southwest District Office, 302 W. McArtor

Road, Dodge City • Wichita-Sedgwick County Dept of Community Health, 1900 E. 9th St., Wichita The material also is available on the Bureau of Air's website at http://www.kdheks.gov/bar/publicnolice.htrul. Questions pertaining to the proposed regulations should be directed to Miles Stotts. '

Any individual with a disability may request accommodation in order to participate in the public hearing and may request the proposed regulations and the. econontic impact and environmental benefit statement in an accessible format. Requests for accommodation should be made at least five working days in advance of the hearing by contacting Pat Bottenberg at 785-291-3278. Robert Moser, M.D. Secretary of Health

and Environment
Doc No. 040844
State of Kansas Deparbnent of Health and Environment · Notice of Hearing on Proposed

Administrative Regulations The Kansas Department of Health and Environment, Division of En'Viro.runent 1 Buxeau of Air, will conduct a public hearing at 10 a.m. Thursday, November 1, in the Flint Hills Conference Room, third floor,.Curtis State Office Building, 1000 S.W. Jackson, Topeka, to consider the adoption of proposed amended air quality regulation K.A.R. 28-19-350, prevention of significant deterioration (PSD) of air quality. A summary of the proposed regulation and the estimated economic impa:ct and environmental benefit follow's: Summary of Regulation:

KDHE is proposing to amend KAR. 28-19-350 specifically to implement the revised National Ambient Air Quality Standard (NAAQS) for fine particulate matter (PM,,), to incorporate the deferral for CO, emissions from bioenergy and other biogenic sources under the PSD Program, and to remove language that excludes stayed, remanded or vacated provisions. These proposed amendments update the adoption by reference of 40 C.F.R. §5221 in K.A.R. 28-19-350 to align the stfrte PSD program with the federal program.

-

When approved by the U.S. Environmental Protection Agency, the proposed amendments preserve the state's authority under existing delegation agreements" to administer federal regulations and to ensure that Kansas :ill' quality regulations are current and consistent with federal requirements. When the proposed amended regulalion is adopted, KDHE will submit the regulation to the EPA for approval into the State Implementation Plan (SIP). Economic Impact:

.

The proposed regulation does not subject -the affected parties, KDHE or other regulatory agencies to additional capital and annual costs of compliance. The BP A expects only marginal cost increases to owners and operators of

. (continued)

Vol. 31, No. 35, August 30,20121126 

### Kansas Register Hearing/Regulations

PM 25 sources that become subject to the program (73 FR 28345, May 16, 2008). The EPA determined that these amendments are unlikely to increase significantly the number of New Source Review (NSR) permits that must be issued but may add to the analyses that sources and federal 1 state and local reviewing authorities must ·conduct The regulation changes are expected to increase the bmden for KDHE associa:ted with major NSR permitting and emissions tracking, collecting and reviewing monitoring data, determining appropriate. best available control technology or lowest achievable emission rate, and!
or obtaining offsets. Environmental Impact:

Numerous major stationary sources in Kansas emit particulate "matter into the air. There is a direct correlation between regulation of these emissions and mailltenance of Kansas air quality in order to address the significant health impacts of particulate pollution. KAR. 28-19-350 enables .KpHE to continue**ongo~g** air protection activities with respect to preconstrilction permitting of major stationary sources.

The time period between the publication of this notice and the scheduled hearing constitutes a 60-day public comment period for the purpose of receiving written public conunents on the proposed regulatory action. All interested parties may submit written comments prior to 5 p.m. Friday, November 2, to Miles Stotts, KDHE, Bureau of Air, 1000 S.W. Jackson, Suite 310, Topeka, 66612, by fax to 785-296-7 455, or by email to mstotts@kdheks.gov. During the hearing, all interested parties will be given a reasonable opportunity to present their comments orally on the proposed regulatory action as well as an opportunity to submit their written comments. In order to give all parties an opportunity to present their commentS, it may be necessary to require each participant to limit any oral presentation to an appropriate time fiame.

A copy of the proposed regulation and the corresponding economic impact and environmental benefit statement may be obtained fiom the KDHE Bureau of Air by contacting Miles Stotts at 785-296-1615 or rnstotts@kdhe ks.gov. Copies also may be viewed at the following locations:

• Department of Air Quality, Unified Government of

Wyandotte County

- Kansas City, Kansas Health Department, 619 Ann Ave., Kansas City, Kansas

• Johnson County Environmental Department,

11811 S. SUilBet, Suite 2700, Olathe

• Curtis State Office Building, 

### iooo S.W. Jackson,

Suite 310, Topeka

• KDHE Northeast Distril;t Office, 800 W. 24th St.,

Lawrence

•. KDHE Northwest District Office, 2301 E. 13th St.,

Hays

• KDHE North Central District Office, 2501 Market

Place, Suite D, Salina

• KDHE South Central District Office, 130 S. Market,

Suite 6050, Wichita • KDHE Southeast District Office, 1500 W. 7th St, Chanute

• KDHE Southwest District Office, 302 W. McArtor

Road, Dodge City ·
• Wichita-Sedgwick County Dept. of Community

Health, 1900 E. 9th St., Wichita The material also is available on the Bureau of Air's website at http://www.kdheks.gov/barlpublicnotice.htmL Questions pertaining to the proposed regulation should be directed to Miles Stotts.

Any individual with a disability may request acco"}c modation in order to participate in the public hearing and may request the proposed regulation and the ·economic impact and environmental benefit statement in an acceSsible format. Requests for accommodation should be made at least five working days in advance of the hearing by contacting Pat Bottenberg at 785-291-3278.

Doc. No. 040843 Robert Moser, MD. Secretary of Health

and Environment

State of Kansas 

# f

Deparbnent for Children and Famili s Pennanent Administrative Regulations /

. Article 46.- ILD ABUSE AND NEatECT 30-46-10

. . D 'rtitions. For the purpo e of the child abuse and neglect r · try, the following · ·lions shall apply.

(a) "Abuse" me "physical, m 1 or emotional abuse" or "sexual abus u as these tw terms are defined inKS .A 38-2202 and am dritents th reto and as "sexual abuse" is further define in this re lation, involving a child who resides ill as or is ound in Kansas, regardless of where the act ccurr d. The term ''abuse" shall include any act that oc urr in Kansas, regardless of where the cbild is found ides, and shall include any act, behavior, or omission t impairs or endangers
a cbild' s social or intellectual ctioning.

The term "abuse" may 1n u the following: (1) Terrorizing a child, b 

### ere ling a climate of fear or engaging in violent or thr ate · behavior toward the child or toward others in e chil 'q presence that demonstrates a flagrant disre ard for e child;

(2) emotionally aban ning a chld, by being psycho-· logically unavailable t the child, d\'ffionstrating no attachment to the child, r failing to prlovide adequate nurturance of the child; d \

(3) corrupting a · d, by teaching\or rewarding the child for unlawful antisocial, or sexuJty mature behavwr.

. \.

(b) "Alleged perpetrator" means**ih~** person identic fied in the initi report or during the**inv~tigation** as the person suspe ed of perpetrating an act 

### of abuse or neglect \

(c) "Child' means anyone under the age'\Jf 18 or anyone under the age of 21 and in the custody of *e secretary pursuant to KS.A 38-2255 and amendments**~reto.** . Vol. 31, No. 35, August 30, 2012 

# \28-19-350. Prevention of significant deterioration (PSD) of air quality. (a) PSD
requirements. The requirements of this regulation shall apply to the construction of major
stationary sources and major modifications of stationary sources as defined in 40 C.F.R.

52.21 in areas of the state designated as attainment areas or unclassified areas for any pollutant under the procedures prescribed by section 1 07( d) of the federal clean air act, 42



## u.s.c. 7407(d).
(b) Adoption by reference; exceptions.
(1) 40 C.F.R. 52.21, as revised on July 1,**~** 2011 and as amended by+§. 76 fed.

reg.**~1606** 31607 (2010) 43507 (2011) and 77 fed. reg. 65118-65119 (2012), is adopted by
reference, except as specified in paragEaphs paragraph (b)(2) and (3).
(2) The following sooseetions provisions of the federal regulation adopted in
paragraph (b )(1) are excluded from adoption:
(A) Plan disapproval, 52.2l(a)(l);
(B) stack heights, 52.21(11);
(C) air quality analysis, 52.2l(m)(l)(v);
(D) visibility monitoring, 52.21 ( o )(3);
(E) public participation, 52.21 ( q);
(F) environmental impact statements, 52.2l(s);
(G) disputed permits or redesignations, 52.21(t);
(H) delegation of authority, 52.21(u); and
(I) permit rescission, 52.21 (w).



### NOV 1 S. 

### 2012

hpPROVED BYE( 

### l»lT. Of**A!:ll\!lii\!!ST~** 

### NOV lL 5 2012**A,,j!\}lm}~**K.A.R. 28-19-350, page 2
(3-) The following subseetiontH}ffhe federal regulation adopted in p8Iagraph (b)(lj;

vkieh fffs subject to a federal court order of stay or rermmd or have been vacated, fffe

CJleluded from adoption: (f.) Routine maintenance, repair, aad replacement:
(i) The seeond sentence of52.21(6)(2)(iii)(a);
(ii) 52.21(b)(55 58); and
(iii) 52.2l(ee); aad
(B) reeordkeeping requirements for projeeted aetna! emissions: the elause ''in

cireumstances •.vhere there is a reasoooble possibility theta project that is not a part of a maj or modification may result in a significant emissions increase" in 52.21 (r)(a).
(c) Provisions adopted by reference; term usage. When used in auy provision
adopted from 40 C.P.R. 52.21, each reference to "administrator" shall mean the
"secretary of health and environment or an authorized representative of the secretary,''

except for the following:
(1) In subsectious 52.21(b )(3)(iii)( a) and 52.21 (b)( 48)(ii), "administrator" shall

mean both the "secretary of health and environment" and the "administrator ofUSEPA."
(2) In subsections 52.2l(b)(17), 52.21(b)(37)(i), 52.21(b)(43), 52.2l(b)(48)(ii)(c),
52.21(b)(50)(i), 52.21(b)(51), 52.21(g), 52.2l(i)(6-8), 52.21(1)(2), and 52.2l(m)(l)(viiviii), "administrator" shall mean only the "administrator of USEP A."
(d) Internal references. The following portions of 40 C.F .R. part 51 are hereby
adopted by reference:

ATTORNEY GENERAL 

### 1\!0V 1**~.** 

### 2012

APPROVED BY 

## &1**~T.** 

### Of 

### A!JMIW&liMTOJ 

### NOV 15 

### 201Z**A'!"~**K.A.R. 28-19-350, page 3
(1) Subpart I, as revised on July 1, 2-007 2011 and as amended by'B 76 fed. reg.
31806 (2010) 43507 (2011) and 77 fed. reg. 65118 (2012); £!£4
(2) appoodiees appendix S, as revised on July 1, 2011 and as amended by 77 fed.

reg. 65118 (2012); and
(3) appendix W, as revised on July 1, 2-007 2011.
(e) Definitions. For the purposes of this regulation, the following definitions shall
apply:
(1) "Act" shall mean the federal clean air act, 42 U.S.C. 7401 et seq. (2) "Class I, II or III area" shall mean a classification assigned to any area ofthe

state under the provisions of sections 162 and 164 of the act, 42 U.S.C. 7472 and 7474, and

amendments thereto.
(3) "State" shall mean the state of Kansas, unless the context clearly indicates

otherwise.
(f) Ambient air ceiling protection. In relation to ambient air ceilings, the following
requirements shall apply:
(1) Except as stated in paragraph (f)(2) of this regulation, a permit shall not be

issued for any new major stationary source or major modification as defined in 40 C.P.R.
52.21(b) if the source or modification will be located in an attainment area or an
unctassifiable area for any national ambient air quality standard and if the source or
modification would cause or contribute to a violation of any national ambient air quality

standard. A major source or major modification shall be considered to cause or contribute

i\TTORNEY GENERAL 

### NOV 1**~.2012**

APPROVED BY 

## !?(**~T.** ()f-**A!li\!IJII!~i'Mi!CIW** 

### NOV 

## 15 

## 2012

Al"IIDOO'#WK.A.R. 28-19-350, page 4

to a violation of a national ambient air quality standard if the air quality impact of the

source or modification would exceed the following levels at any locality that does not or
would not meet the applicable national standard: Averaging Time

Pollutant Annual 24 hrs. 8 hrs. 3 hrs. 1 hr. Sulphur dioxide 1.0**~g/m'** 5**~g/m 3**  25**~g/m 3** 
PMIO 1.0**~g/m 3**  5 11g/m 3
PM2, 0.3**~g/m 3**  1.2 f!-g/m 3 Nitrogen dioxide 1.0 )!gim'
Carbon monoxide 0.5 mglm 3 2mg/m 3
(2) A permit may be granted for a major stationary source or I)J.ajor modification as
identified in paragraph (f)(l) of this regulation if the impact of the major stationary

source's or major modification's emissions upon air quality is reduced by a sufficient

amount to compensate for any adverse impact at the location where the major source or
modification would otherwise cause or contribute to a violation of any national ambient air
quality standard. Subsection (f) shall not apply to a major stationm·y source or major

modification with respect to a particular pollutant if the owner or operator demonstrates

that the source is located in an area that has been identified as not meeting either the

national primary or secondary ambient air quality standard for that particular pollutant.
(g) Stack height requirements. K.AR. 28-19-18 through K.A.R. 28-19-lSf, regarding stack height requirements, shall apply to the sources subject to this regulation.

ATTORNEY GENERAL 

### AUG 13 2012

APPROVED**BY~ ~**  

### OF AOM!Nl8T!llli!ON 

### JUL .23 20!2**A~\ll!illJ**KA.R. 28-19-350, page 5
(h) Application required. Each application for a PSD permit shall be submitted by

the owner or operator on ihe forms provided or approved by ihe department. K.A.R. 28-19-

300 through K.A.R. 28-19-304, regarding construction permit and approval requirements,

shall apply to the sources subject to ihis regulation.
(i) Impact on federal class I areas; notification required. If ihe emissions from any proposed major stationary source or major modification subject to tills regulation will

affect any air quality-related values in any federal class I area, a copy of the permit application for the source or modification shall be transmitted by ihe secretary or an
authorized representative of the secretary to the administratm ofUSEPA through the appropriate regional office. The administrator, through ihe appropriate regional office,

shall also be notified of every action taken concerning the application.


### G) Permit suspension or revocation. Any permit issued under this regulation may
be suspended or revoked by the secretary upon a finding that the owner or operator has

failed to comply with any requirement specified in the. permit or with any other statutory or regulatory requirement. Tills subsection shall not be interpreted to preclude any other remedy provided by law to the secretary.
(k) Public participation requirements. In addition to the requirements of K.A.R. 28-
19-204, the following public pmticipation requirements shall be met before issuauce of the permit:
(1) The public notice shall include the following:

ATTORNEY GENERAL 

### AUG 13 Z01Z

APPROVED BY5lf**~.** 

### CJI'**A!Jl\IIIN!~TION** 

### JUL 23 

## 2012**A~illldJ**K.A.R. 28-19-350, page 6
(A) A statement specifying the portion of the applicable maximum allowable

increment that is expected to be consumed by the source or modification; and
(B) a statement that the federal land manager of any adversely impacted federal

class I area has the opportunity to provide the secretary with a demonstration that the

emissions from the proposed source or modification will have an adverse impact on air
quality-related values in the federal class I area. (2) A copy of the public notice shall be mailed to the following:
(A) The applicant;
(B) the administrator ofUSEPA through the appropriate regional office;
(C) any state or local air pollution control agency having jurisdiction in the air
quality control region in which the new or modified installation wlll be located;
(D) the chief executives of the city and county where the source wlll be located;
(E) any comprehensive regional land use planning agency having jurisdiction where

the source will be located; and
(F) any state, federal land manager, or Indian governing body whose lands will be

affected by emissions from the new construction or modification.
(3) In addition to those materials required to be available for public review at the
appropriate district office or local agency, a summary analysis and discussion of those

materials as they relate to establishing compliance with the requirements of thi's regulation

shall be made available for public review.

AlTORNEY GENERAL 

### AUG JL 

### 3 Z01Z

APPROVED BY 

### 'iff 

# oon. or**g~~~** 

### JUL 

## 2 3 ZOIZ**A~**K.A.R 28-19-350, page 7
( 4) Copies of all comments received and the written determination of the secretary

shall be made available for public inspection at the appropriate district office or local

agency. (Authorized by K.S.A. 2009 2011 Supp. 65-3005; implementing K.S.A. ;]009. 2011 Supp. 65-3005 and K.S.A. 65-3008; effective Nov. 22, 2002; amended Jnne 30, 2006;

amended Oct. 23, 2009; amended Nov. 29, 2010; amended P-

_________ .)

ADORNEY GENERAL 

### AUG 13 2012

APPROVED BY 

### llf**~** 

### OF Ml!11\liS'mAT!ON 

### JUL 2**~** 

### 2012**~~!liD**Office of the Secretary Curtis State Office Bldg. 1000 SW Jacksart Suite 540 Topeka, Kansas 66612

Robert Moser, MD. Secretary Department ofHealth & Environmettt

DECLARATION OF ADOPTION Phone: 785-296-0461 Fax: 785-31S8-6368

San1: :Brownback, Governor

I, Robert Moser, MD, Secretary of the Kansas Department of Health and Environment, hereby adopt the following amended permanent Article 19 air quality regulations:

KAR 28-19-350 KAR 28-19-735 'KAR28-19-750 KAR28-19-750a

These regulations have been approved by the Secretary of Administration as to organization, style, orthography and grammar and by the Attorney General as to form and legality and as being within the jurisdiction of the Secretary of Health and Environment

This administrative act of adoption I hereby certify as being an official action of my Office of Secretary of the Kansas Department of Health and Environment on the 

### ;?.pi!, day of November, 2012,

Robert Moser, MD Secretary of Health aud EnviromnentNotice/Regulations 

### Kansas Register 1507

Domestic Cotporations

. ces, L.L.C., Altus, OK Block & any, Inc., Realtors, Kansas City, Bright Pl ing, Inc., Lee's Summit, MO Reynol Construction Co., Inc., Denver, CO Studi e Media, Inc., Topeka, KS The u..rrant Group, Inc., Dubuque, IA Wi er Equipment Company, Incorporated, Willoughby, H

Doc. No. 041156 KrisW. Ko Secretary of St e

State of Kansas Department of Health and Environment
Permanent Administrative Regulations
Article 19.-AMBIENT AIR QUALITY STANDARDS AND AIR POLLUTION CONTROL 28-19-350. Prevention of significant deterioration (PSD) of air quality. (a) PSD requirements. The requirements of this regulation shall apply to the construction of major stationary sources and major modifications of**sta~** tionary sources as defined in 40 C.P.R. 52.21 in areas of the state designated as attainment areas or unclassified
areas for any pollutant under the procedures prescribed by section 107(d) of the federal clean air act, 42 U.S.C. 7407(d). (b) Adoption by reference; exceptions. (1) 40 C.P.R. 52.21, as revised on July 1, 2011 and as amended by 76 fed. reg. 43507 (2011) and 77 fed. reg. 65118-65119 (2012), is adopted by reference, except as specified in paragraph (b)(2).

(2) The following provisions of the federal regulation adopted in paragraph (b)(l) are excluded from adoption:

(A) Plan disapproval, 52.21(a)(1); (B) stack heights, 52.21(h); (C) air quality analysis, 52.21(m)(1)(v); (D) visibility monitoring, 52.21(o)(3); (E) public participation, 52.21(q); (F) environmental impact statements, 52.21(s); (G) disputed permits or redesignations, 52.21(t); (H) defegation of authority, 52.21(u); and (I) permit rescission, 52.21(w). (c) Provisions adopted by reference; term usage. When used in any provision adopted from 40 C.F.R. 52.21, each reference to "administrator'' shall mean the "secretary of health and environment or an authorized representative of the secretary," except for the following:

(1) In subsections 52.21(b)(3)(ili)(a) and 5221(b )(48)(ii),**'~administrator"** shall mean both the "secretary of health and environment" and the "administrator of USEP A."

(2) In subsections 52.21(b)(17), 52.21(b)(37)(i), 52.21(b)(43), 52.21(b)(48)(ii)(c), 52.21(b)(SO)(i), 52.21(b)(51), 52.21(g), 52.21(i)(6-8), 52.21(1)(2), and 52.21(m)(1)(vii -viii), "administrator" shall mean only the "administrator of USEPA." (d) Internal references. The following portions of 40 C.P.R. part 51 are hereby adopted by reference:

(1) Subpart!, as revised on July 1, 2011 and as amended by 76 fed. reg. 43507 (2011) and 77 fed. reg. 65118 (2012); (2) appendix S, as revised on July 1, 2011 and as amended by 77 fed. reg. 65118 (2012); and

(3) appendix W, as revised on July 1, 2011. (e) Definitions. For the purposes of this regulation, the followiog definitions shall apply: (1) "Act" shall mean the federal clean air act, 42 U.S.C. 7401 et seq.

{2) "Class I, II or III area" shall mean a classification assigned to any area of the state under the provisions of sections 162 and 164 of the act, 42 U.S. C. 7472 and 7474, and amendments thereto.

(3) "State" shall mean the state of Kansas, unless the context clearly indicates otherwise. (f) Ambient air ceiling protection. In relation to ambient air ceilings, the following requirements shall apply:

(1) Except as stated in paragraph (£)(2) of this regulation, a permit shall not be issued for any new major stationary source or major modification as defined in 40 C.P.R. 52.21(b) if the source or modification will be located in an attainment area or an unclassifiable area for any national ambient air quality standard and if the
source or modification would cause or contribute to a violation of any national ambient air quality standard. A major source or major modification shall be considered to cause or contribute to a violation of a national ambient air quality standard if the air quality impact of the source or modification would exceed the following levels at any ( continueil)
Vol. 31, No. 50, December 13,2012 lSI Kamas Seaeta:ry o1 Stde 20121508 

### Kansas Register Regulations

locality that does not or would not meet the applicable national standard: Averaging Time Pollutant Armual 24hts, s hts. Sulphur dioxide 1.0 p.gfm3 5 !1-gin\3 PMu. 1.0 jlog(.m! 5**~ghn· ~,**  0.3 p.g/m'" 1.2 fJ,.g/m 3 Nitrogen dioxide 1.0 p.g.lnil 3hrs. 251Lglm3 llrr.

Carbon m.onrudde 0..5 mgtm9 2 mglm3

(2) A permit may be granted for a major stationary
source or major modification as identified in paragraph (f)(1) of this regulation if the impact of the major stationroy source 1 s or major modification's emissions upon air quality is reduced by a sufficient amount to compensate for any adverse impact at .the location where the major source or modification would otherwise cause or contribute to a violation of any national ambient air quality standard. Subsection (f) shall not apply to a major stationary
source or major modification with respect to a particular pollutant if the owner or operator demonstrates that the
source is located in an area that has been identified as not meeting either the national priniary or secondary ambient air quality standard for that particular pollutant.

(g) Stack height requirements. K.A.R. 28-19-18 through K.A.R. 28-19-18£, regarding stack height requirements, shall apply to the sources subject to this regulation.

(h) Application required. Each application for a PSD permit shall be submitted by the owner or operator on the forms provided or approved by the department. K.A.R. 28-19-300 through K.A.R. 28-19-304, regarding construction permit and approval requirements, shall ap-

. ply to the sources subject to this regulation. (i) Impact on federal class I areas; notification required. If the emissions from any proposed major stationary
source or major modification subject to this regulation will affect any air quality-related values in any federal class I area, a copy of the penni! application for the source or modification shall be transmitted by the secretary or an authorized representative of the secretary to the administrator of USEP A through the appropriate regional office. The administrator, through the appropriate regional office, shall also be notified of every action taken concerning the application.



### G) Permit suspension or revocation. Aoy permit issued under this regulation may be suspended or revoked by the secretary upon a finding that the owner or operator has failed to comply with any requirement specified in the permit or with any other statutory or regulatory requirement. This subsection shall not be interpreted to preclude any other remedy provided by law to the secretary.

(k) Public participation requirements. In addition to the requirements of K.A.R. 28-19-204, the following public participation requirements shall be met before issuance of the permit

(1) The public notice shall include the following: (A) A statement specifying the portion of the applicable maximum allowable increment that is expected to be consumed by the source or modification; and

(B) a statement that the federal land manager of any adversely impacted federal class I area has the opportunity to provide the secretary with a demonstration that the emissions from the proposed source or modification will have an adverse impact on air quality-related values in the federal class I area.

(2) A copy of the public notice shall be mailed to the following:

(A) The applicant; (B) the administrator of USEP A through the appropriate regional office;

(C) sny 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;

(D) the chief executives of the city and county where the source will be located;

(E) any comprehensive regional land use planning agency having jurisdiction where the source will be located; and

(F) any state, federal land manager, or Indian governing body whose lands will be affected by emissions from the new construction or modification.

(3) In addition to those materials required to be available for public review at the appropriate district office or local agency, a suromary analysis and discussion of those materials as they relate to establishing compliance with the requirements of this regulation shall be made available for public review.

( 4) Copies of all comments received and the written detennination of the secretary shall be made available for public inspection at the appropriate district office or local agency. (Authorized by K.S.A. 2011 Supp. 65-3005; iffi.. plementing K.S.A. 2011 Supp. 65-3005 and K.S.A. 65-3008; effective Nov. 22, 2002; amended June 30, 2006; amended Oct. 23, 2009; amended Nov. 29, 2010; amended Dec. 28, 2012.) -19-735- National emission standards for ardo air pollutants. (a) 40 C.F.R. part 61 and its a dices, · effectonJulyl,2010,areadoptedbyr except fo e following:

(1) The owing sections in subpart A: (A) 61.04; (B) 61.16; an (C) 61.17; (2) subpart B; (3) subpart H; (4) subpart I; (5) subpart K; ( 6) subpart Q; (7) subpart R; (8) subpart T; and (9) subpart W. (b) Unless the context c ly · icates otherwise, the following meanings s e given t these terms as they appear in 40 C.P.R. pa 1:

(1) The term "a ' strator" shall the secretary
or the secretary's au orized representatl

.

(2) The term "U ed States enviro 1 protection agency" and any: referring to the Uni States environmental pr ction agency shall mean department.

(3) The t (Authorize y KS.A. 2011 Supp. 65-3005; imple

____ ""'·' K.S.A. 65- 008 and 65-3010; effective Jan. 23, 19 · amended June 6, 1997; aroended June 11, 1999; aroende

®Kansas Secretary of State 2111Z Vol. 31, No. 50, December 13,2012Curtis State Office Building 1000 SW Jackson St, Suite 540 Topeka, KS 66612-1367
Robert Moser, MD, Secretary

February 26, 2013

Mr. Karl Brooks Regional Administrator Department of Health & Environment

U.S. Environmental Protection Agency, Region 7 11201 Renner Blvd Lenexa, lCS 66219

Re: Letter of Submittal for Revision to Kansas State Implementation Plan

Dear Mr. Brooks: Phone: 785-296-0461 Fax: 785-368-6388

www.kdheks.gov
Sam Brownback, Governor

In accordance with 40 C.F .R. Part 51 and Section 11 0 of the Federal Clean Air Act, and as the designated representative of Governor Sam Brownback, I am formally submitting revisions to the Kansas Air Quality State Implementation Plan (SIP) for your review and approval.

This submittal updates the SIP to reflect the following change to the Kansas Air Quality Regulations:

• The amendment of existing Kansas Administrative Regulation (KA.R.) 28-19-350, regarding the prevention of significant deterioration (PSD) of air quality.

Administrative materials and technical support documents required for a determination that this SIP amendment is an official submission for purposes of review are enclosed. The amended K.A.R. 28-19-350 became effective December 28,2012.
If any additional information is required, please contact Miles Stotts at (785) 296-1615. Sincerely,

Robert Moser, MD Secretary of Health and Environment

Enclosures

cc: Joshua Tapp, EPA Region 7 Lachala Kemp, EPA Region 7

# Attachment 2 : State of Kansas Conflict of Interest Provisions2012 Kansas Statutes

46

- 247. Individuals required to file written statements of substantial interests; exception. The following individuals shall file written statement s of substantial interests, as provided in K.S.A. 46

- 248 to 46

- 252, inclusive, and amendments thereto:

.... (c) State officers, employees and members of boards, councils and commissions under the jurisdiction of the head of any state agency who are listed as designees by the head of a state agency pursuant to K.S.A. 46

- 285, and amendments thereto.

.... History: L. 1974, ch. 353, § 33; L. 1979, ch. 164, § 1; L. 1982, ch. 218, § 2; L. 1983, ch. 172, § 2; L. 1988, ch. 180, § 1; L. 1991, ch. 150, § 47; L. 2002, ch. 188, § 10; L. 2005, ch. 126, § 6; L. 2009, ch. 134, § 10; L. 2010, ch. 150, § 11; July 1.

46

- 221. State officer or employee, candidate and state officer elect defined. (a) "State officer or employee" means (1) any individual who is an elected or appointe d state officer, (2) any individual who is in the classified service or unclassified service of the Kansas civil service act, (3) all officers and employees of the legislative branch and of the governor's office, irrespective of how compensated or period o f employment, and (4) any individual who receives monthly or semimonthly compensation for services from the state or any state agency. State officer or employee does not include any justice or commissioner of the supreme court or judge of the judicial bran ch or employee or officer of the judicial branch or any member of a board, council or commission who is appointed by the supreme court or who is elected or appointed to exercise duties pertaining to functions of the judicial branch, when such person is eng aged in performing a function or duty for the judicial branch. Also, state officer or employee does not include any appointed member of an advisory council, commission or board, who serves without compensation other than amounts for expense allowances or r eimbursement of expenses as provided for in subsection (e) of K.S.A. 75

- 3223 and amendments thereto, when such member is engaged in performing a function or duty for such council, commission or board. (b) "Candidate" means an individual who: (1) Appoints a treasurer or a candidate committee; (2) makes a public announcement of intention to seek nomination or election to state office; (3) makes any expenditure or accepts any contribution for the purpose of influencing such person's nomination or election to a ny state office; or (4) files a declaration or petition to become a candidate for state office. (c) "State officer elect" means an individual who has been elected to state office or appointed to fill a vacancy in a state office but who has not yet taken th e oath of office. History: L. 1974, ch. 353, § 7; L. 1975, ch. 272, § 1; L. 1978, ch. 332, § 29; L. 1995, ch. 172, § 1; July 1.

46

- 229. "Substantial interest" and "client or customer" defined. "Substantial interest" means any of the following: (a) If an i ndividual or an individual's spouse, either individually or collectively, has owned within the preceding 12 months a legal or equitable interest exceeding $5,000 or 5% of any business, whichever is less, the individual has a substantial interest in that bu siness. (b) If an individual or an individual's spouse, either individually or collectively, has received during the preceding calendar year compensation which is or will be required to be included as taxable income on federal income tax returns of the ind ividual and spouse in an aggregate amount of $2,000 from any business or combination of businesses, the individual has a substantial interest in that business or combination of businesses. (c) If an individual or an individual's spouse, either individually or collectively, has received directly or indirectly in the preceding 12 months, gifts or honoraria having an aggregate value of $500 or more from any person, the individual has a substantial interest in that person. If a gift is received for which the va lue is unknown, the individual shall be deemed to have a substantial interest in the donor. A substantial interest does not exist under this subsection by reason of: (1) A gift or bequest received as the result of the death of the donor; (2) a gift from a spouse, parent, grandparent, sibling, aunt or uncle; or (3) acting as a trustee of a trust for the benefit of another.(d) If an individual or an individual's spouse holds the position of officer, director, associate, partner or proprietor of any business, the individual has a substantial interest in that business, irrespective of the amount of compensation received by the individual or individual's spouse. (e) If an individual or an individual's spouse receives compensation which is a portion or percentage of each separate fee or commission paid to a business or combination of businesses, the individual has a substantial interest in any client or customer who pays fees or commissions to the business or combination of businesses from which fees or commission s the individual or the individual's spouse, either individually or collectively, received an aggregate of $2,000 or more in the preceding calendar year. As used in this subsection, "client or customer" means a business or combination of businesses. Histor y: L. 1974, ch. 353, § 15; L. 1983, ch. 172, § 1; L. 1984, ch. 189, § 1; L. 1987, ch. 198, § 1; July 1.

# Responsiveness Summary

(KDHE Response to Public Comments)1 Kansas Air Quality State Implementation Plan Revision Proposal

2008 Ozone (O3) Primary NAAQS

and 2010 Nitrogen Dioxide (NO 2 ) Primary NAAQS In accordance with Section 110(a)(1) of the Federal Clean Air Act, proposed revisions to the Kansas State Air Quality Implementation Plan (SIP) for 2010 Nitrogen Dioxide (NO 2 ) and 2008 Ozone (O 3 ) National Ambient Air Quality Standards (NAAQS) were submitted to the U.S. EPA Region 7 office for review and approval. The SIP revisions were public noticed in the Kans as Register on December 6, 2012 with a public hearing tentatively scheduled for January 7, 2013. No r equests for hearing were received within a thirty

- day period and the proposed meeting was

c ancelled. Responsiveness Summary

KDHE received comments from the EPA, Region 7 Office, and the National Sierra Club; all of which are documented below, with formal response from KDHE. The U.S. EPA subsequently indicated that KDHE’s proposed SIPs would be finalized after comments and provisional requirements were addressed. Section 110(a)(2)(C) Programs for enforcement of control measures and for construction or modification of stationary sources

EPA Comment:
“In order to meet the requirements of Element C as it pertains to the major source PSD program, the Kansas infrastructure SIP submittal for the 2008 ozone standard must also include the appropriate PSD requirements for all regulated NSR pollutants (e.g., NO 2 , PM 2.5 , etc.). It is Region 7’s understanding that , although Kansas recently revised its state

r egulations to address all regulated NSR pollutants, these rule revisions have not been submitted to EPA for approval into the SIP. If these additional provisions are submitted to EPA and are approved into the SIP, EPA believes the provisions of the rule w ould address Element C.”

KDHE Response:
The Kansas Department of Health and Environment (KDHE) has finalized revisions to K.A.R. 28

- 19

- 350 Prevention of significant deterioration (PSD) of air quality to align the state PSD program with the federal progra m. The revisions update the state’s adoption by reference as follows:2

40 C.F.R. Part 52.21, as revised on July 1, 2011 and as amended by 76 FR 43507 (2011) and 77 FR 65118

- 65119 (2012), is adopted by reference. 40 C.F.R. Part 51 Subpart I, as revised on July 1, 2011 and as amended by 76 FR 43507 (2011) and 77 FR 65118 (2012), is adopted by reference. 40 C.F.R. Part 51 Appendix S, as revised on July 1, 2011 and as amended by 77 FR 65118 (2012), is adopted by reference. 40 C.F.R. Part 51 Appendix W, as revi sed on July 1, 2011, is adopted by reference.
KDHE published a notice of public hearing and 60

- day comment period in the Kansas Register on August 30, 2012. The public hearing was conducted on November 1, 2012, and the public comment period concluded on November 2, 2012, at 5:00pm. The Secretary of KDHE adopted the amended regulation on November 29, 2012, and forwarded to the Secretary of State for filing and final publication in the Kansas Register. The final permanent regulation was published on Decem ber 13, 2012, and became effective on December 28, 2012.

KDHE Action:
KDHE will include documentation of the PSD regulation update with the Kansas Infrastructure SIP submittal to demonstrate that the state has addressed Element C. 1 Additionally, KDHE is submitting a PSD SIP Revision package to EPA.
Section 110(a)(2)(D) Interstate and international transport

EPA Comment:
“With respect to element D, we recognize KDHE has addressed the provisions within the submittal. EPA R7 will review the SIP in accordance with the November 19, 2012 memo issued by Gina McCarthy.” 2

KDHE Response:

2010 NO 2 NAAQS With respect to the 2010 NO 2 NAAQS and Element D, KDHE understands that EPA R7 will review the Infrastructure SIP submittal in accordance with EPA policy and guidance. It is important to note that currently there are no areas in the country designated as nonattainment or maintenance

1 Documentation of the amendment to K.A.R. 28

- 19

- 350 also is provided as Attachment 1 to this Response to Comments document. 2 The November 19, 2012, memorandum, “N ext Steps for Pending Redesignation Requests and State Implementation Plan Actions Affected by the Recent Court Decision Vacating the 2011 Cross

- State Air Pollution Rule,” signed by Assistant Administrator Gina McCarthy, is provided for reference as Attach ment 2 to this Response to Comments document.3

under the 2010 NO 2 NAAQS. On January 20, 2012 EPA designated all areas of the country as “unclassifiable/attainment” for the 2010 NO 2 NAAQS, stating that the available air quality data show that all monitored areas in the country meet the 2010 NO 2 NAAQS for 2008

- 2010.

KDHE believes that the Kansas Infrastructure SIP for the 2010 NO 2 NAAQS currently satisfies all required elements, including Element D in its entirety.

2008 Ozone NAAQS With respect to the 2008 ozone NAAQS and Element D, KDHE clarifies he re that the Kansas submittal under Section 110(a)(2)(D) is intended to satisfy the requirements of (D)(i)(II) and (D)(ii).
In the SIP, KDHE cites the November 19, 2012, EPA memorandum regarding “Next Steps for Pending Redesignation Requests and State Im plementation Plan Actions Affected by the Recent Court Decision Vacating the 2011 Cross

- State Air Pollution Rule.” This memo, signed by Assistant Administrator Gina McCarthy, discusses the recent CSAPR decision that a SIP cannot be deemed deficient for fa iling to meet the good neighbor obligation (CAA Section 110(a)(2)(D)(i)(I)) before the EPA quantifies that obligation. The memo goes on to state that EPA intends to act in accordance with the decision during the pendency of the appeal and that EPA does no t intend to make findings that states failed to submit SIPs to comply with Section 110(a)(2)(D)(i)(I).
EPA has not completed its Transport SIP guidance establishing technical requirements for demonstrating whether or not a state has transport impacts on downwind states. KDHE will review the guidance once it becomes available and apply as necessary should there be an EPA determination of significant contribution by Kansas with respect to the 2008 ozone standard.

KDHE Action:

The submittal of the Kansas 2008 Ozone Infrastructure SIP to EPA will clarify that Section 110(a)(2)(D)(i)(I) is not addressed at this time and that the Element D submittal is intended to satisfy (D)(i)(II) and D(ii).

Sierra Club Comments:
The Sierra Club submitted comments regarding the State of Kansas Plan for Implementation, Maintenance, and Enforcement of the 2008 National Ambient Air Quality Standards (NAAQS) for ozone. Two comments were made under the following headings:

“KDHE Shoul d Reassess the Effects of Kansas Emissions on Nonattainment Areas Surrounding Kansas” “KDHE Should Reassess the Effects of Kansas Emissions on Allegan County, MI.”4

KDHE Response:
As these comments address interstate transport, Section 110(a)(2)(D)(i)(I) , please see KDHE’s response to the above EPA comment regarding Element D.

KDHE Action:

No action taken.
Section 110(a)(2)(E) Adequate personnel, funding, and authority

EPA Comment:
“Section 128(a)(2) provides that each SIP contain requirements that potential conflicts of interest be disclosed by members of such boards or bodies (or the head of a an executive agency) with the power to approve permits or enforcement orders. Based on EPA’s review..., Kansas cites to statutory provisions in Chapter 4 6 of the Kansas Statutes Annotated that would appear to address the conflict of interest requirements of Section 128(a)(2). However, these provisions must be submitted to EPA for approval into the Kansas SIP in order to meet the requirements of Element E. ”
KDHE Response:
KDHE addressed the Clean Air Act (CAA) requirements regarding conflict of interest in its December 12, 1994, Title V Program submittal to EPA requesting Title V permitting authority. 3 The submittal included a legal opinion written by the Chief Attorney for KDHE acting as Special Assistant Attorney General for the State of Kansas. The opinion demonstrates that Kansas laws provide adequate authority to carry out all aspects of the Titl e V Program, including conflict of interest disclosure requirements. 4 Specifically, K.S.A. 46

- 247 Individuals required to file written statements of substantial interest, listed in the opinion, demonstrates that Kansas law requires disclosure of any potential conflicts of interest by the head of any agency responsible for issuing permits and enforcement orders. Related definition statutes include K.S.A. 46

- 221 State offic er or employee, candidate and state officer elect defined and K.S.A. 46

- 229 “Substantial interest” and “client or customer” defined.
The Kansas Air Quality State Implementation Plan (SIP) for Implementation, Maintenance, and Enforcement of the National Am bient Air Quality Standards (NAAQS), also known as the

3 EPA issued final full approval of the Kansas Title V Program on January 30, 1996. [61 FR 2938] The Title V Program is not part of the SIP. 4 KDHE will provide a copy of the legal opinion as supporting docum entation. (See Attachment 3 to this Response to Comments.)5

Infrastructure SIP, states that Kansas Statutes from Chapter 46, Article 2, specify conflict of interest requirements and that the statutes found at K.S.A. 46

- 247 et seq . require the Secretary of KDHE to file a statement of substantial interests. The Infrastructure SIP states that these statutes fulfill the CAA Section 128 requirements referenced in Section 110(a)(2)(E). To further clarify, for the purposes of the Kansas Infrastructure SIP, K.S.A. 46

- 247(c) and the definitions in K.S.A. 46

- 221 and 46

- 229 satisfy the requirements of CAA Section 128(a)(2) pursuant to Section 110(a)(2)(E)(ii). 5

46

- 247. Individuals required to file written statements of substantial interests; exception. The following individuals shall file written statements of substantial interests, as provided in K.S.A. 46

- 248 to 46

- 252, inclusive, and amendments thereto: .....(c) State officers, employees and members of boards, councils and commissions under the jurisdiction of the he ad of any state agency who are listed as designees by the head of a state agency pursuant to K.S.A. 46

- 285, and amendments thereto. .....History: L. 1974, ch. 353, § 33; L. 1979, ch. 164, § 1; L. 1982, ch. 218, § 2; L. 1983, ch. 172, § 2; L. 1988, ch. 180, § 1; L. 1991, ch. 150, § 47; L. 2002, ch. 188, § 10; L. 2005, ch. 126, § 6; L. 2009, ch. 134, § 10; L. 2010, ch. 150, § 11; July 1.

46

- 221. State officer or employee, candidate and state officer elect defined. (a) "State officer or employee" means (1) any individual who is an elected or appointed state officer, (2) any individual who is in the classified service or unclassified service of the Kansas civil service act, (3) all officers and employees of the le gislative branch and of the governor's office, irrespective of how compensated or period of employment, and (4) any individual who receives monthly or semimonthly compensation for services from the state or any state agency. State officer or employee d oes not include any justice or commissioner of the supreme court or judge of the judicial branch or employee or officer of the judicial branch or any member of a board, council or commission who is appointed by the supreme court or who is elected or appoi nted to exercise duties pertaining to functions of the judicial branch, when such person is engaged in performing a function or duty for the judicial branch. Also, state officer or employee does not include any appointed member of an advisory council, comm ission or board, who serves without compensation other than amounts for expense allowances or reimbursement of expenses as provided for in subsection (e) of K.S.A. 75

- 3223 and amendments thereto, when such member is engaged in performing a function or duty for such council, commission or board.
(b) "Candidate" means an individual who: (1) Appoints a treasurer or a candidate committee; (2) makes a public announcement of intention to seek nomination or election to state office; (3) makes any expenditure or accepts any contribution for the purpose of influencing such person's nomination or election to any state office; or (4) files a declaration or petition to become a candidate for state office.
(c) "State officer elect" means an individual who has been ele cted to state office or appointed to fill a vacancy in a state office but who has not yet taken the oath of office. H istory: L. 1974, ch. 353, § 7; L. 1975, ch. 272, § 1; L. 19 78, c h. 332, § 29; L. 1995, ch. 172 , § 1; July 1.

5 CAA Section 128(a)(1) does not apply to Kansas as there is no state board regulating air quality.6

46

- 229. "Substantial interest" and "client or customer" defined. "Substantial interest" means any of the following:
(a) If an individual or an individual's spouse, either individually or collectively, has owned within the preceding 12 months a legal o r equitable interest exceeding $5,000 or 5% of any business, whichever is less, the individual has a substantial interest in that business.
(b) If an individual or an individual's spouse, either individually or collectively, has received during the preced ing calendar year compensation which is or will be required to be included as taxable income on federal income tax returns of the individual and spouse in an aggregate amount of $2,000 from any business or combination of businesses, the individual has a
su bstantial interest in that business or combination of businesses.
(c) If an individual or an individual's spouse, either individually or collectively, has received directly or indirectly in the preceding 12 months, gifts or honoraria having an aggregate
v alue of $500 or more from any person, the individual has a substantial interest in that person. If a gift is received for which the value is unknown, the individual shall be deemed to have a substantial interest in the donor. A substantial interest does no t exist under this subsection by reason of: (1) A gift or bequest received as the result of the death of the donor; (2) a gift from a spouse, parent, grandparent, sibling, aunt or uncle; or (3) acting as a trustee of a trust for the benefit of another.
(d ) If an individual or an individual's spouse holds the position of officer, director, associate, partner or proprietor of any business, the individual has a substantial interest in that business, irrespective of the amount of compensation received by the i ndividual or individual's spouse. (e) If an individual or an individual's spouse receives compensation which is a portion or percentage of each separate fee or commission paid to a business or combination of businesses, the individual has a substantial in terest in any client or customer who pays fees or commissions to the business or combination of businesses from which fees or commissions the individual or the individual's spouse, either individually or collectively, received an aggregate of $2,000 or mor e in the preceding calendar year.
As used in this subsection, "client or customer" means a business or combination of businesses.
History: L. 1974, ch. 353, § 15; L. 1983, ch. 172, § 1; L. 1984, ch. 189, § 1; L. 1987, ch . 198, § 1; July 1.

KDHE Action:
KDHE will include the specific applicable statutory provision, K.S.A. 46

- 247(c), and the related definition statutes, K.S.A. 46

- 221 and 46

- 229, which meet the requirements of CAA Section 128(a)(2) pursuant to Section 110( a)(2)(E)(ii) in the Infrastructure SIP submittal demonstrating that K ansas law requires disclosure of any potential conflicts of interest by the head of any agency (state officer, employee) responsible for issuing permits and enforcement orders.

# Responsiveness Summary

Attachments:

1) PSD Revision Documentation

2) EPA Memo , Gina McCarthy November 2012

3) 1994 Legal Opinion (Conflict of Interest)

### State of Kansas

# ~~~~~==~==~======~=J=o=an~Fi=n=ne=y~~==G=o=ve=r=no=r====~==~~~==~==~====~=

November 22, 1994 

### Department of Health and Environment Robert C. Harder, Secretary

Mr. Dennis Grams Regional Administrator U.S. Environmental Protection Agency Region VII 726 Minnesota A venue Kansas City, KS 66101

Dear Mr. Grams:

As Chief Attorney for the Kansas Department of Health and Environment (KDHE) and a Special Assistant Attorney General for the State of Kansas, I have full authority to independently represent KDHE and the Bureau of Air and Radiation in court on all matters pertaining to the state air program. Pursuant to such authority and in accordance with the federal Clean Air Act, §502(d), as amended, (42 U.S.C. §7401, et §.il!l.) and 40 CFR 70.(4)(b)(3), it is my opinion that the laws of the state of Kansas provide adequate authority to carry out all aspects of the Title V operating permit program submitted to the EPA by KDHE, Bureau of Air and Radiation, for the purpose of gaining approval to administer and enforce the operating permits program under title V of the Clean Air Act (CAA) and 40 CFR part 70.

The specific authorities provided, which are contained in statutes or regulations lawfully adopted, and which shall be fully effective by the time the program is approved, include those identified below. There are repeated citations in this opinion 

### to the Kansas Air Quality Act, K.S.A. 65- 3001 

### !l.t §.il!l., as amended. Unless otherwise stated, the effective date of all provisions of that act cited in this opinion is March 25, 1993.

As of the date of this opinion, all of the administrative regulations cited herein have been adopted by the Secretary of KDHE. They are expected to be published in the Kansas Register
on December 1, 1994, and will become effective, pursuant to K.S.A. 77-426, forty-five days after the date of publication.

Division of Environment, Bureau of Air and Radiation, Forbes Field, Topeka, KS. 66620-0001 Telephone: (913) 296-1570 Fax Numher: (913) 296-1545

Printed on Recycled PaperMr. Dennis Grams Page 2 November 22, 1994

I. AUTIIORITY TO ISSUE PERMITS

Kansas law and regulations provide authority for KDHE to issue operating permits to all air pollution sources within the state that are required to have permits pursuant to CAA §502(a) and 40 CFR part 70.3 and to incorporate into permits, and assure compliance with, each applicable requirement of the CAA, including all currently applicable sections of Section 112 of the CAA, and the requirements of 40 CFR part 70. Kansas law authorizes KDHE to modify part 70 operating permits to incorporate new requirements promulgated by the EPA, including future changes in Section 112 requirements.

Kansas law also provides authority to issue operating permits for solid waste incineration units combusting municipal waste pursuant to CAA §129(e) that will assure compliance with all applicable requirements of the CAA and the requirements of 40 CFR part 70.

Statutes

K.S.A. 1993 Supp. 65-3005. Powers of the secretary; subsections (a) and (c).

K.S.A. 1993 Supp. 65-3008. Approvals and permits for air emission stationary sources. Regulations

K.A.R. 28-19-7. Definitions.

K.A.R. 28-19-204. General provisions; permit issuance and modification; public participation.

K.A.R. 28-19-212. General provisions; approved test methods and emission compliance determination procedures.

K.A.R. 28-19-400 through K.A.R. 28-19-403 concerning the issuance of general permits.

K.A.R. 28-19-500 through K.A.R. 28-19-518 concerning the issuance of class I operating permits

K.A.R. 28-19-540 through K.A.R. 28-19-546 concerning the issuance of class II operating permits.

K.A.R. 28-19-720. New source performance standards.

K.A.R. 28-19-735 and K.A.R. 28-19-750 through K.A.R. 28-19-753 concerning hazardous air pollutants.Mr. Dennis Grams Page 3 November 22, 1994



### ll. AUTiiORITY TO ISSUE PERMITS TO NONCOMPLYING SOURCES

Kansas law and regulations provide authority for KDHE to issue permits to sources that are not in compliance with applicable requirements and to include compliance schedules in permits to bring sources into compliance.

Statute

K.S.A. 1993 Supp. 65-3008. Approvals and permits for emission stationary sources. Regulations

K.A.R. 28-19-511. Class I operating permits; application contents; subsection (b)(16).

K.A.R. 28-19-512. Class I operating permits; permit contents; subsection (a)(23).

ill. 

### CONFLICTS OF INTEREST

Kansas law provides that any state agency with the authority to approve operating permits, either in the first instance or upon appeal, represents the public interest and that individual employees of such agencies do not derive a significant portion of their income from persons subject to operating permits.

Kansas law also provides that any potential conflicts of interest by the head of any agency which approves operating permits must be adequately disclosed.

Statutes

K.S.A. 65-3003. Responsibility of secretary; administration.

K.S.A. 1993 Supp. 65-3005. Powers of the secretary.

K.S.A. 1993 Supp. 65-3008. Approvals and permits for emission stationary sources.

K.S.A. 75-5619. Secretary may organize department; duties of division heads and staff assistants; delegation of authority; duties and powers of personnel divisions. Effective date: July 1, 1974.

K.S.A. 46-229. "Substantial interest" and "client or customer" defmed. Effective date: July 1, 1981.Mr. Dennis Grams Page 4 November 22, 1994

K.S.A. 46-247. Individuals required to file written statements of substantial interest. Effective date: July 1, 1991.

K.S.A. 46-286. Participation by state officer or employee in licensure, regulations or in any contract with any organization with which such person holds a position prohibited; exceptions. Effective date: April 19, 1984.

K.S.A. 46-285. Heads of state agencies to submit lists of designees; additional information regarding designees required; organizational chart; certification; filing with secretary of state. Effective date: July 1, 1984.
Regulations

None.

Remarks Operating permits are issued by the secretary or by persons to whom such authority is delegated pursuant to K.S.A. 75-5619. The secretary and persons to whom he delegates authority to issue operating permits are full-time state employees subject to state conflict of interest provisions. Under these provisions, state employees are prohibited from administering or enforcing any regulations against any outside organization with which the employee holds a position. Additionally, employees are required to file written statements of substantial interest, which includes the disclosure of ownership of a legal or equitable interest in a business, exceeding $5000 or 5%, whichever is less.

Kansas law does not specifically prohibit the issuance of a permit for a solid waste incinerator by an agency or person that is also responsible for the design, construction or operation of the incinerator. However, operating permits are issued by the Bureau of Air, which is not authorized to design, construct or operate an incinerator.



### IV. PERMIT FEES

Kansas law provides authority for KDHE to assess and collect annual emission fees from sources within the state that are subject to the requirements of title V of the CAA and 40 CFR part 70, in an amount sufficient to cover all reasonable direct and indirect costs required to develop, administer, and enforce the State's title V program.

Statute

K.S.A. 1993 Supp. 65-3024. Emission fees.Mr. Dennis Grams Page 

### 5 November 22, 1994**Re~ulation** K.A.R. 28-19-202. Annual emissions fee.

Remarks

K.S.A. 1993 Supp. 65-3024(a) states: "The secretary may fix, charge, and collect annual emission fees in amounts necessary to pay the direct and indirect costs of administering the provisions of the Kansas air quality act." Subsection (c) of this statute states: "The moneys deposited in the fund shall be expended only for the purpose of administering the Kansas air quality act. "

The language of these provisions does not include the terms "develop" or "enforce" with respect to the Kansas Air Quality Act. Nevertheless, it is my opinion that the direct and indirect costs of administering the Kansas air quality act include the development and enforcement of the title V program and that KDHE is fully authorized to collect fees for these purposes.


### V. PERMIT TERMS

Kansas law provides authority for KDHE to issue operating permits for a fixed term not to exceed five years. Kansas law provides authority for KDHE to issue operating permits for solid waste incineration units com busting municipal waste pursuant to CAA § 129(e) with a fixed term, not to exceed 12 years, and for a review of such permits at least every five years. Kansas law provides authority to issue permits with acid rain provisions for a fixed term of five years.

Statutes

K.S.A. 1993 Supp. 65-3005. Powers of the secretary.

K.S.A. 1993 Supp. 65-3008. Approvals and permits for emission stationary sources. Regulation

K.A.R. 28-19-514. Class I operating permits; permit term; renewal.



### VI. MONITORING. RECORDKEEPING. AND REPORTING

Kansas law provides authority for KDHE to incorporate monitoring, recordkeeping, reporting, and compliance certification requirements into operating permits consistent with 40 CFR §70.6, and consistent with 40 CFR part 72 for affected sources under Title IV of the CAA. State law provides authority to incorporate into the permit periodic monitoring or testing requirements

### Mr. Dennis Grams Page 6 November 22, 1994

where the existing state implementation plan or other applicable requirement does not contain such a requirement consistent with 40 CFR §70.6(a)(3)(i)(B).

Statute

K.S.A. 1993 Supp. 65-3007. Regulations

K.A.R. 28-19-275. Special provisions; acid rain depositions.

K.A.R. 28-19-511. Class I operating permits; application contents; subsection (b)(16)(C)

- compliance schedule.

K.A.R. 28-19-512. Class I operating permits; permit contents; subsection (a)(9)

- emissions monitoring and related recordkeeping and reporting requirements; subsection (a)(lO)

- applicable recordkeeping requirements and required monitoring information; subsection (a)(ll)

- applicable reporting requirements; subsection (a)(23)

- schedule of compliance.

Vll. INSPECTION/ENTRY AUTHORITY

Kansas law provides authority for KDHE to incorporate into permits inspection and entry requirements consistent with 40 CFR §70.6(c)(2).

Statutes

K.S.A. 65-3009. Inspections. Effective July 1, 1974.

K.S.A. 65-3025. Unlawful acts; subsection (e).
Regulation

K.A.R. 512. Class I operating permits; permit content; subsection (a)(22).

VID. INCORPORATION OF ALL APPLICABLE REQUIREMENTS INTO PERMIT

Kansas law provides authority for KDHE to incorporate into an operating permit, upon issuance
or renewal, all applicable requirements as defmed in 40 CFR §70.2, and as provided generally in the CAA and 40 CFR part 70.Mr. Dennis Grams Page 7 November 22, 1994

Statutes

See statutes cited under Section I, Authority to Issue Permits.

Re&ulations

See regulations cited under Section I, Authority to Issue Permits.

IX. PERMIT REOPENING

Kansas law provides authority for KDHE to revise permits with remaining terms of three or more years to incorporate new applicable requirements that become effective after issuance of the permit. Kansas law provides authority to reopen permits when additional acid rain requirements become applicable, regardless of the remaining permit term. Kansas law also provides authority to terminate, modify, or revoke permits for cause at any time during the permit term consistent with 40 CFR §§ 70. 7(f) and (g).

Statutes

K.S.A. 1993 Supp. 65-3002. Definitions; subsection (j) "reopen."

K.S.A. 1993 Supp. 65-3005. Powers of the secretary.

K.S.A. 1993 Supp. 65-3008. Approvals and permits for emission stationary sources.
K.S.A. 1993 Supp. 65-3008b. Same; suspension, revocation, denial, modification, issuance.
Regulation

K.A.R. 28-19-513. Class I operating permits; permit amendment, modification or reopening and changes not requiring a permit action; subsection (e).

Remarks

40 CFR §70.7(g) requires reopenings for cause by EPA. The conditions for reopening by the EPA and the requirements imposed on KDHE in the event of such a reopening are not addressed in Kansas law or regulations. However, the secretary is authorized under K.S.A. 1993 Supp. 65-3005 to enter into an implementation agreement with the EPA that provides for reopenings for cause by the EPA in accordance with the requirements of §70.7(g). Nothing in Kansas law
or regulations limits the authority of the EPA to reopen a permit. K.S.A. 28-19-513(e) specifies the circumstances under which the secretary may reopen a permit.Mr. Dennis Grams Page 8 November 22, 1994

X. OPERATIONAL FLEXffiiLITY

Kansas law provides authority for KDHE 

### to issue permits that allow changes within a permitted facility without requiring a permit revision if the changes are not modifications under any provision of title I of the CAA, and the changes do not exceed the emissions allowable under the permit, provided that the source provides at least seven days written notice to the State and to the EPA. State law provides authority for permits to include terms and conditions for reasonably anticipated, alternative operating scenarios in permits.

Statutes

K.S.A. 1993 Supp. 65-3005. Powers of the secretary.

K.S.A. 1993 Supp. 65-3008. Approvals and permits for emission stationary sources. Regulations

K.A.R. 28-19-513. Class I operating permits; permit amendment, modification or reopening and changes not requiring a permit action; subsection (f).

K.A.R. 28-19-512. Class I operating permits; permit content; subsection (a)(17).

XI. PERMIT MODIFICATIONS

Kansas law provides authority for KDHE to process permit modifications in a manner that conforms 

### to, or is substantially equivalent to, the procedures set forth under 40 CFR §70. 7(e).

Statutes

K.S.A. 1993 Supp. 65-3008a. Same; public comment and hearing.

K.S.A. 1993 Supp. 65-3008b. Same; suspension, revocation, denial, modification, issuance.
Regulations

K.A.R. 28-19-513. Class I operating permits; permit amendment, modification or reopening and changes not requiring a permit action; subsections (b),(c), and (d).

K.A.R. 28-19-515. Class I operating permits; public participation, affected state participation, and EPA participation.

### Mr. Dennis Grams Page 9 November 22, 1994

K.A.R. 28-19-511. Class I operating permits; application contents.

Remarks

40 CPR §70. 7e contains the following requirements that are not specifically addressed in Kansas law and regulations:

l. Subsection (e)(4), concerning significant modification procedures, provides that the permitting authority shall design and implement its review process to complete review on the majority of significant permit modifications within 9 months after receipt of a complete application. Kansas regulations do not provide a time frame for review of significant permit modifications.

2. Subsection (e)(3), concerning group processing procedures, provides that the permitting authority notify the EPA and affected states, on a quarterly basis, or within 

### 5 days of receipt of an application demonstrating an exceedance of the applicable threshold level. Kansas regulations concerning group processing do not contain any notice requirements other than the general notice requirements applicable to all modifications.

The secretary is authorized under K.S.A. 1993 Supp. 65-3005 to enter into an implementation agreement with the EPA that incorporates these requirements of 40 CPR §70.7(e) into the Kansas program.

XII. PUBLIC PARTICIPATION



### Kansas law provides authority for public participation in agency actions to issue or deny an operating permit, to modify a permit (except for minor permit modifications), or to renew a permit. Public participation under Kansas law includes the opportunity for public comment and the opportunity for a hearing on draft permits in accordance with the requirements of the CAA and 40 CPR §70. 7(h). Kansas law provides for the review by affected states of permit applications in accordance with the CAA and 40 CPR 70.8(b).

Statute

K.S.A. 1993 Supp. 65-3008a. Same; public comment and hearing.
Regulations

K.A.R. 28-19-204. General provisions; permit issuance and modification; public participation.Mr. Dennis Grams Page 10 November 22, 1994

K.A.R. 28-19-515. Class I operating permits; public participation, affected state participation and USEPA participation.

K.A.R. 29-19-513. Class I operating permits; permit amendment, modification or reopening and changes not requiring a permit action; subsections (b)(2) and (d)(4).

XID. PUBLIC ACCESS TO PERMIT INFORMATION

Kansas law provides authority for KDHE to make available to the public any permit application, compliance plan, permit, and monitoring and compliance certification report, except for information entitled to confidential treatment. Kansas law provides that the contents of an operating permit shall not be entitled to confidential treatment.

Statute

K.S.A. 1993 Supp. 65-3015. Records and information open; trade secret exception.
Regulation

K.A.R. 28-19-204. General provisions; permit issuance and modification; public participation.

XIV. ENFORCEMENT OF PERMITS PROGRAM REQUIREMENTS

Kansas law provides civil enforcement authority consistent with 40 CFR §70.11, including the authority to recover penalties and fines in a maximum amount of $10,000 per civil violation. Every day a civil violation continues is deemed a separate violation.

With respect to criminal enforcement authority, K.S.A. 65-3026(a) provides that a violation of K.S.A. 65-3025 is a class A misdemeanor; subsection (b) of that statute provides that knowing violation of that statute is a class E felony. Every day a violation continues is considered a separate violation.

K.S.A. 21-4503, as in effect at the time the Kansas Air Quality Act was adopted, provided for the imposition of fines for a class A misdemeanor of not more than $2500 and for a class E felony of not more than $10,000. On July 1, 1993, subsequent to adoption of K.S.A. 65-3025, the Kansas statutes regarding the classification of crimes and penalties were significantly revised. Class E felonies committed before July 1, 1993 continue to be subject to fines not exceeding $10,000 pursuant to K.S.A. 21-4503, as amended. Class A misdemeanors continue to be subject to a fine not exceeding $2500 whether committed before or after July 1, 1993.Mr. Dennis Grams Page 11 November 22, 1994

Most crimes committed after July 1, 1993 are now classified according to severity rankings. However, felony violations of K.S.A. 65-3026 committed after July 1, 1993 are unclassified. Pursuant to K.S.A. 21-4707, an unclassified felony is considered to be a level 10 nonperson crime. A level 10 nonperson crime is subject to a fine not to exceed $100,000, pursuant to K.S.A. 21-4503a.

Statutes

K.S.A. 1993 Supp. 65-3011. Enforcement; procedure.

K.S.A. 1993 Supp. 65-3012. Action to protect health or environment.

K.S.A. 1993 Supp. 65-3018. Administrative fines.

K.S.A. 1993 Supp. 65-3025. Unlawful acts.

K.S.A. 1993 Supp. 65-3026. Criminal penalties.

K.S.A. 1993 Supp. 21-4503(a). Fines; crimes committed prior to July 1, 1993.

K.S.A. 1993 Supp 21-4503a. Fines, crimes committed on or after July 1, 1993.

K.S.A. 1993 Supp. 21-4707. Sentencing; crime severity scale for nondrug crimes, application to specific crimes; ranking offenses, provision; un-ranked offenses; unclassified felonies.
Regulations

None.

Remarks

Consistent with the requirements of 40 CFR 70.11, the burden of proof and degree of intent or knowledge required for establishing civil and criminal violations is no greater than the burden of proof or degree of knowledge or intent required under section 113 of the federal clean air act. Kansas law does not include mental state as an element of proof for civil violations. The standard required for imposition of criminal penalties pursuant to K.S.A. 65-3026 is knowing violation of the provisions of the Kansas Air Quality Act or regulations or knowing violation of the terms of any permit, approval, or order issued pursuant to the Act or regulations.Mr. Dennis Grams Page 12 November 22, 1994

XV. AUTHORITY TO ENFORCE LAPSED PERMITS

Kansas law provides authority for KDHE to enforce the terms and conditions of a permit that has expired, if the source has filed a timely and complete application for renewal, so as to assure compliance with all applicable requirements.

Statutes

K.S.A. 1993 Supp. 65-3005. Power of the secretary; subsection (c).

K.S.A. 1993 Supp. 65-3008. Approvals and permits for emission stationary sources. Regulation

K.A.R. 28-19-514. Class I operating permits; permit term renewal; subsection (b).

XVI. EPA PERMIT VETO

Kansas law provides that an operating permit will not be issued unless the EPA has certified that the permit complies with the requirements of the federal clean air act. It further provides that if the EPA fails to object to issuance of a permit within 45 days of receipt of the proposed permit, the permit may be issued. Kansas regulations provide that public notice of permit proceedings shall include a statement that prior to the issuance of the permit, permit modification, or renewal, the EPA has the right to object to issuance of the permit and that if the EPA fails to object within the 45 day period, a person may petition the administrator of the EPA to review the permit within 60 days of the expiration of the EPA's 45 day review period.

Statute

K.S.A. 1993 Supp. 65-3008b. Same, suspension, revocation, denial, modification, issuance; subsection (g).
Regulation

K.A.R. 28-19-515. Class I operating permits; public participation, affected state participation, and USEPA participation.

### Mr. Dennis Grams Page 13 November 22, 1994

XVll. DEFAULT PERMIT ISSUANCE

Kansas does not authorize the issuance, modification, or renewal of any permit based on the passage of a specified time period during which KDHE has failed to take action on the application, and does not include any other similar provision providing for default issuance of
a permit unless EPA has specifically waived the right of review for itself and affected states.

Statute

K.S.A. 1993 Supp. 65-3008b. Same; suspension, revocation, denial, modification, issuance; subsections (g) and (i).
Regulation

K.A.R. 28-19-515.

Remarks
K.S,A. 1993 Supp. 65-3008b(i) provides that failure of the secretary to act shall not result in the default issuance of a permit, nor shall such failure result in any other entity assuming jurisdiction to act on the permit request. Kansas statutes and regulations do not authorize issuance of a permit without EPA review.

XVlll. OPPORTUNITY FOR ,JUDICIAL REVffiW OF PERMIT ACTIONS

Kansas law provides an opportunity for judicial review in state court of any final permit action by the applicant, any person who participated in the public-participation process provided pursuant to the CAA and 40 CPR§ 70.7(h), or any other person who has standing to obtain judicial review pursuant to 

### the act for judicial review of agency actions, K.S.A. 77-601 through 77-627. Any provisions of state law which limit access to judicial review do not exceed the corresponding limits on judicial review imposed by the standing requirements of Article III of the United States Constitution.

Statutes

K.S.A. 1993 Supp. 65-3008a. Same; public comment and hearing; subsection (b).



### K.S.A. 1993 Supp. 65-3008b. Same; suspension, revocation, denial, modification, issuance; subsection (e).

K.S.A. 77-501 through 77-541. Kansas Administrative Procedure Act, as amended.Mr. Dennis Grams Page 14 November 22, 1994

K.S.A. 77-610 through 77-627. Act for Judicial Review and Civil Enforcement.
Regulations

None.

Remarks

K.S.A. 1993 Supp. 65-3008a(b) provides that persons, other than the applicant, who have participated in the public comment process or the public hearing, shall have standing to obtain judicial review of the secretary's final action on a permit application, modification, renewal or reopening, pursuant to the Act for Judicial Review and Civil Enforcement of Agency Actions. Such persons shall not be required to have exhausted administrative remedies in order to be entitled to review.

An applicant for a permit also may obtain judicial review pursuant to the Act for Judicial Review and Civil Enforcement. However, unlike persons other than the applicant who are granted standing to obtain judicial review pursuant to K.S.A. 1993 Supp. 3008a(b), applicants are required to exhaust administrative remedies provided for in the Administrative Procedure Act in order to be entitled to judicial review pursuant to K.S.A. 1993 Supp. 65-3008b.

XIX. FINAL AGENCY ACTION ON PERMITS

K.S.A. 1993 Supp. 65-3008b(h) requires that the secretary shall issue or deny a permit, including requests to modify or reopen a permit, within the time periods specified in that provision. The Kansas program allows sources to make changes using the minor permit modification process and requires that an application for a minor permit modification shall be acted upon within 90 days of receipt of an application requesting a minor permit modification,
or within 180 days for minor modifications subject to group processing requirements.

The failure ofKDHE to take final action within the time period prescribed at K.S.A. 1993 Supp. 65-3008b(h) is subject to judicial review in state court. Likewise a failure to take final action
on a minor permit application within the required time is subject to judicial review.

Statutes

K.S.A. 1993 Supp. 65-3008b. Same; suspension, revocation, denial, modification, issuance; subsection (h).

K.S.A. 77-602. Definitions. Effective date July 1, 1986.

### Mr. Dennis Grams Page 15 November 22, 1994

K.S.A. 77-f!J6. Act exclusive means of review. Effective date July 1, 1986.

K.S.A. 77-flJ7. Persons entitled to review; final agency action. Effective date July 1, 1984.

K.S.A. 77-611. Standing. Effective date July 1, 1984.

K.A.R. 28-19-513. Class I operating permits; permit amendment, modification or reopening and changes not requiring a permit action; subsection (c)(9).

Remarks

Judicial review of state administrative actions is governed by the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-flJ1 through 77-627. Under this act, judicial review is available if KDHE fails to take final action with respect to any application for a permit, permit renewal, or permit revision within the time specified in the applicable statute and regulations.

K.S.A. 77-flJ2 defines "agency action" to include "an agency's performance of, or failure to perform, any other duty function or activity, discretionary or otherwise." A "final agency action" is defined at K.S.A. 77-flJ7(b)(l) as any agency action "other than non-final agency action." "Non-final agency action" is defined at K.S.A. 77-flJ7(b)(2) as action the agency intends to be ".

. . preliminary, preparatory, procedural or intermediate with regard to subsequent agency action . . . "

KDHE's failure to take action with respect to a permit will constitute a "final agency action" unless it is a "non-fmal agency action" because the agency intends it to be preliminary, preparatory, procedural or intermediate with regard to subsequent agency action. Whether a failure to act with respect to a permit will be subject to judicial review will depend on whether the definition of "final action" is met under the particular circumstances.



### XX. LIMITATIONS ON .JUDICIAL REVIEW

The Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-flJ1 through 77-627 is the exclusive means for judicial review of state agency actions in Kansas.

That law requires that petitions for judicial review must be filed not later than 30 days after a final action with respect to 

### a permit. The 30 day deadline for filing a petition for judicial review may be extended during any period that the petitioner did not know and was under no duty toMr. Dennis Grams Page 16 November 22, 1994

discover, or could not reasonably have discovered, that the agency had taken the action or that the agency action conferred standing upon the petitioner to obtain judicial review.

A petition for judicial review may be filed at any time before KDHE denies a permit or issues
a final permit if the agency action that is being challenged is the failure to take action, provided that such failure constitutes a "final action" within the meaning of K.S.A. 77-607(b), as discussed above in paragraph XIX.

Statutes

K.S.A. 77-602. Definitions.

K.S.A. 77-606. Act exclusive means of review.

K.S.A. 77-607. Persons entitled to review; final agency action.

K.S.A. 77-613. Time for filing petition; service of order, pleading or other matter. Regulations

None.

Remarks

Petitions for judicial review of acid rain permits will be governed by 40 CFR part 72, which is adopted by reference in K.A.R. 28-19-275.



### XXI. COORDINATION WITH ACID RAIN PROGRAM REQUIREMENTS

Kansas Jaw is consistent with, and cannot be used to modify, the Acid Rain Program requirements of 40 CFR part 72.

Statute

K.S.A. 1993 Supp. 65-3008b(h)(2).
Regulations

K.A.R 28-19-275. Special provisions; acid rain deposition.

### Mr. Dennis Grams Page 17 November 22, 1994

K.A.R. 28-19-513. Class I operating permits; permit amendment, modification or reopening and changes not requiring a permit action; subsection (b)(l).

XXII. AUTIIORITY FOR LOCAL/INTERSTATE PROGRAMS WHERE APPLICABLE

No local or interstate agency within Kansas will be submitting a separate title V program to EPA for approval.

XXID. ENHANCED MONITORING

Kansas law authorizes implementation of the enhanced monitoring requirements of sections 114(a)(3) and 504(b) of the CAA as applicable to operation permits.

Statute

K.S.A. 1993 Supp. 65-3007. Air contaminant sources; classification; monitoring; reporting. Regulations

K.A.R. 28-19-212. General provisions; approved test methods and emission compliance determination procedures; subsections (b) and (c).

K.A.R. 28-19-512. Class I operating permits; permit content; subsection (a)(9)(A).
Respectfully submitted,

# ~~tt'--**~O>U** Yv ne Anderson Chi f Attorney, Kansas Department of Health and Environment Special Assistant Attorney General, State of Kansas 

# II-2:J-91J
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