Curtis State. Office Building

1000 SW Jac.kson St., Suite 540 ropcka, KS 666!2-1367**Rob~~rt** 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, KS 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 Brown back, Governor

In accordance with 40 C.F.R. Part 51 and Section 110 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:

e The amendment of existing Kansas Administrative Regulation (K.A.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

# Revision to the S tate of Kansas Air Quality State Implementation Plan

P lan Revision to Incorporate

K.A.R. 28

- 19

- 350

Our Vision

- Healthy Kansans living in safe and sustainable environments

.



# Department of Health and Environment

Division of Environ ment
Bureau of Air (785) 296

- 6024

February 2 6 , 2013

# TABLE OF CONTENTS

Section Contents

A Description of Materials Required for Plan Submittal

• Administrative Materials

• Technical Support

B Evidence That Plan Revision Has Been Adopted, and of Effective Date of Adopted Plan Revision

• Secretary’s Declaration of Adoption , K.A.R. 28

- 19

- 350

C Authorizing Statutes

• Kansas Air Quality Statutes ( K.S.A. Chapter 65 , Article 3 0)

D Plan Revision

• K.A.R. 28

- 19

- 350 (as published in the Kansas Register on December 13

, 201 2 )

• Stamped and dated copies of K.A.R. 28

- 19

- 350

E Procedural Requirements Documents

• Report of the Hearing Officer (including response to comments)

F Public Notice Documents

• Notice of Hearing on Proposed Administrative Regulations (as published

in the Kansas Register on August 30 , 20 12 )

• Affidavits of Publication

G Technical Support:

• Response to Elements of 40 C.F.R. Part 51, Appendix V, Section 2.2

• Regulatory Impact Statement

# Section A

# Description of Materials Required for Plan

Submittal

(Per 40 C.F.R. Part 51, Appendix V, Section 2.0

- Criteria)



## Administrative Materials

(40 C.F.R. Part 51, Appendix V, Section 2.1)

Appendix

V Section Appendix V Requirement Documentation Provided in

Submittal Submittal

Section

2.1(a) Formal letter of

submittal Letter of Submittal Preface

2.1(b) Evidence the plan has been adopted and the

effective date Secretary’s Declaration of Adoption

, K.A.R. 28

- 19

- 350 B

2.1(c) Legal authority to adopt

and implement plan K ansas Air Quality Statutes (K .S.A. Chapter 65 , Article 30 ) C

2.1(d) Copy of actual

r egulation or document, including indication of the changes made K.A.R. 28

- 19

- 350 (as published in

the Kansas Register on December 13, 2012 )

Stamped and dated copy of K.A.R.

28

- 19

- 350 D

2.1(e) Evidence the S tate has followed all pr ocedural requirements Report of the Hearing Officer E

2.1(f) Evidence that publ ic notice was provided Kansas Register

– August 30, 2012

Newspaper Affidavits of Publication F

2.1(g) Certification that public hearing w as held as per information in public

notice Report of the Hearing Officer E

2.1(h) Compilation of public

c omments and responses

thereto Report of the Hearing Officer E

## Technical Support

( 40 C.F.R. Part 51, Appendix V, Section 2.2 )

Appendix

V Section Appendix V Requirement Documentation Provided in

Submittal Submittal

Section

2. 2 (a) Identification of all

r elevant pollutants affected by the plan Refer to response

. G

2.2(b) Identification of the

location of affected sources under the plan Refer to response

. G

2.2(c) Quantification of the changes in the plan’s

allowable emissions Refer to response

. G

2.2(d) Demonstration that the

ambient air quality will not deteriorate, etc

. Refer to response

. G

2.2(e) Modeling information Refer to response

. G

2.2(f) Evidence that emissions

limits are continuous

emission reduction technology

- based Refer to response

. G

2.2(g) Evidence that plan

contains emissions limits, etc. Refer to response

. G

2.2(h) Compliance/enforcement provisions Refer to response

. G

2.2(i) Special economic or technological justifications as needed,

or e xplanation of why justification not needed Refer to response

. G

# Section B

# Section CState of Kansas Air Quality Statutes

Chapter 65. --PUBLIC HEALTH

Article 30. --AIR QUALITY CONTROL

65-3001. Title of act. K.S.A. 65-3002, 65-3003, 65-3005 through 65-3013 and 65-3015 through 65-3020 and K.S.A. 65- 3008a, 65-3008b and 65-3024 through 65-3028, and amendments thereto, shall be known and may be cited as the Kansas air quality act. History: L. 1967, ch. 347, § 1; L. 1970, ch. 261, § 1; L. 1993, ch. 13, § 1; March 25.

65-3002. Definitions. As used in this act, unless the context clearly requires

otherwise: (a) "Air contaminant" means dust, fumes, smoke, other partic ulate matter, vapor, gas, odorous substances, or any combination thereof, but not including water vapor or

steam condensate. (b) "Air contamination" means the presen ce in the outdoor atmosphere of one or

more air contaminants. (c) "Air pollution" means the presence in the outdoor atmosphere of one or more air contaminants in such qua ntities and duration as is, ortends significantly to be, injurious to human health or welfare, an imal or plant life, or property, or would unreasonably interfere with the enjoyment of lif e or property, or would contribute to the formation of regional haze. (d) "Alter" means any physical change i n, or change in the method of operation of, an air contaminant emi ssion stationary source which increases the amount of any regulated air pollutant emitted by such source or which results in the emission of any regulated air pollutant not previously emitted. (e) "Emission" means a release into the outdoor atmosphere of air contaminants. (f) "Deciview" means an atmospheric h aze index that expresses changes in visibility conditions as defined in 40 C. F.R. 51.301 as in effect on July 1, 2005. (g) "Facility" means any building, stru cture, machine, equipment, device or installation (or group of bu ildings, structures, machines, equipment, devices or installations), whether temporary or perman ent, located on one or more contiguous or adjacent properties and under common contro l of the same person (or persons under common control). Such term shall not include lo comotives, diesel trucks or truck tractors unless otherwise required by the federal clean air act, as amended in November 1990. (h) "Modify" or "modification," when used in conjunction with an approval or permit action, means an amendment to an ex isting approval or permit initiated by the permittee. When used to describe a change in any air contaminant emission stationary source, "modify" shall have the same meaning as the term "alter." (i) "Permittee" means the holder of an approval or the holder of a permit and includes both the owner and the operator of any approved or permitted air contaminant

emission source. (j) "Person" means any individual, partnership, firm, association, municipality, public or private corporation, subdivision or agency of the state or federal government, trust, estate or any other legal entity. (k) "Regional haze" means visibility impairment, measured in deciviews, occurring over a large geographic area cause d by the cumulative emissions of gaseous and particulate air contaminan ts from numerous sources.

KDHE, Bureau of Air 1 Last Revised: March 15, 2011(l) "Reopen" means to seek an amendm ent to an existing approval or permit initiated by any person other than the permittee. (m) "Secretary" means the secretar y of health and environment. (n) "Stationary source" means any buildi ng, structure, facility or installation which emits or may emit any air contaminant. History: L. 1967, ch. 347, § 2; L. 1970, ch. 261, § 2; L. 1974, ch. 352, § 135; L. 1993, ch. 13, § 2; L. 2006, ch. 84, § 1; July 1.

65-3003. Responsibility of secretary; administration. The responsibility for air quality conservation and control of air pollution is hereby placed with the secretary of

health and environment. The se cretary shall administ er this act through the division of

environment. History: L. 1967, ch. 347, § 3; L. 1970, ch. 261, § 3; L. 1974, ch. 352, § 136; July 1.

65-3004. History: L. 1967, ch. 347, § 4; L. 1970, ch. 261, § 4; L. 1974, ch. 348, § 29; Repealed, L. 1974, ch. 352, § 189; July 1.

65-3005. Powers of the secretary. (a) The secretary shall have the power to: (1) Adopt, amend and repeal rules and regulations implementing and consistent

with this act. (2) Hold hearings relating to any aspect of or matter in the administration of this act concerning air quality control, and in c onnection therewith, compel the attendance of witnesses and the produc tion of evidence. (3) Issue such orders, perm its and approvals as may be necessary to effectuate the purposes of this act and enforce the same by all appropriate administrative and judicial proceedings. (4) Require access to record s relating to emissions which cause or contribute to air pollution. (5) Prepare and develop a comprehens ive plan or plans for the prevention, abatement and control of air pollution originat ing in Kansas that affects air quality in

Kansas or in othe r states or both. (6) Adopt rules and regulations governi ng such public notification and comment procedures as authorized by this act. (7) Encourage voluntary cooperation by pers ons or affected groups to achieve the purposes of this act. (8)(A) Encourage local un its of government to handle air pollution problems within their respective jurisdictions and on a cooperative basis; (B) provide technical and consultative assistance therefor; and (C) en ter into agreements with local units of government to administer all or part of the pr ovisions of the Kansas air quality act in the units' respective jurisdictions. (9) Encourage and conduct studies, inves tigations and resear ch relating to air contamination and air polluti on and their causes, effects, prevention, abatement and

control. (10) Encourage air contaminant emi ssion sources to vol untarily implement strategies, including the development and us e of innovative technol ogies, market-based principles and other private initiati ves to reduce or prevent pollution. (11) Determine by means of field st udies and sampling the degree of air contamination and air pollution in the st ate and the several parts thereof.

KDHE, Bureau of Air 2 Last Revised: March 15, 2011(12) Establish ambient air quality standards for the state as a whole or for any part thereof. (13) Collect and disseminate informa tion and conduct educational and training programs relating to air contam ination and air pollution. (14) Advise, consult and cooperate with other agencies of the state, local governments, industries, other states, intersta te or interlocal agencies, and the federal government, and with interested persons or groups. (15) Accept, receive and administer grants or other funds or gifts from public and private entities, including th e federal government, for the pu rpose of carrying out any of

the functions of this act. Such funds receive d by the secretary purs uant to this section shall be deposited in the stat e treasury to the account of the department of health and

environment. (16) Enter into contracts and agreem ents with other state agencies or subdivisions, local governments, other states, interstate agen cies, the federal government or its agencies or private entities as is n ecessary to accomplish the purposes of the Kansas air quality act. (17) Conduct or participat e in intrastate or intersta te emissions trading programs or other programs that demonstrate equivale nt air quality benef its for the prevention, abatement and control of air pollution in Kansas or in other states or both. (18) Prepare and adopt a regional haze plan as may be necessary to prevent, abate and control air pollution originating in Kansas that affects air quality in Kansas or in other states or both. Any regional haze plan prepared by the secretary shall be no more stringent than is requ ired by 42 U.S.C. 7491. (19) Participate in the ac tivities of any visibility transport commission established under 42 U.S.C. 7492. The secretary shall report to the governor and the legislature on the activities of any such visibi lity transport commission annually. (b) It is a policy of the state to regulate the air quality of the state and implement laws and regulations that are applied equally and uniformly throughout the state and consistent with those of the federal government. (1) The secretary shall have the authority to promulgate rule s and regulations to

establish standards to ensure that the state is in compliance with the provisions of the federal clean air act, as amended (42 U.S. C. section 7401 et seq.). The standards so established shall not be any mo re stringent, restrictive or expansive than those required under the federal clean air act, as amended, nor shall the rules and regulations be enforced in any area of the state prior to the time required by the federal clean air act. If the secretary determines that more stringent, restrictive or expansive rules and regulations are necessary, the secretary may implement th e rules and regulations only after approval by an act of the legislature. The restrictions of this subsection shall not apply to the parts of the state implementation plan developed by the secretary to bring a nonattainment area into compliance when needed to have a Unit ed States environmental protection agency approved state implementation plan. (2) For any application for a permit require d by federal or state law, the secretary shall not deny or delay the issu ance of such permit when the re quirements of this act have

been met. History: L. 1967, ch. 347, § 5; L. 1970, ch. 261, § 5; L. 1974, ch. 352, § 137; L. 1993, ch. 13, § 3; L. 2006, ch. 84, § 2; L. 2009, ch. 141, § 23; May 28.

65-3006. Same; publication and enforcement of regulations; employment of personnel; services. The secretary shall:

KDHE, Bureau of Air 3 Last Revised: March 15, 2011(a) Publish and enforce the rules, regulations and standards promulgated hereunder. The secretary shall furnish a copy of such rule s, regulations or standards adopted hereunder to any citizen upon request. (b) Employ such professional, technical and other staff, and provide such technical, scientific and other services as may be required, including laboratory facilities, for the purpose of effectuating the provision s of this act from funds appropriated and available for the purposes of this act. History: L. 1967, ch. 347, § 6; L. 1970, ch. 261, § 6; L. 1974, ch. 352, § 138; L. 1975, ch. 312, § 10; July 1.

65-3007. Air contaminant sources; classifi cation; monitoring; reporting. (a) The secretary, by rule and regulation, shall cl assify air contaminant sources which, in the secretary's judgment, may cause or contribut e to air pollution, acco rding to levels and types of emissions and other characteristics which relate to air pollution and may require reporting for any such class or classes. The classifications promulgated by the secretary shall be made to apply to the state as a whol e or to any designated area of the state, and shall be made with special reference to effects on health, economic and social factors, and physical effects on property. (b) The secretary shall require air c ontaminant emission sources to monitor emissions, operating parameters, ambient imp act of any source emissions or any other parameters deemed necessary by the secretar y. The secretary may require air contaminant emission sources to keep records and make re ports consistent with the purposes of this

act. (c) Any person operating or responsible for the operation of air contaminant sources of any class for which the rules and regulations of th e secretary require reporting shall make reports containing information as may be required by the secretary concerning location, size and height of contaminant ou tlets, processes employed, fuels used and the nature and time periods or duration of emi ssions, and such other information as is relevant to air pollution and available or reasonably capable of being assembled. History: L. 1967, ch. 347, § 7; L. 1970, ch. 261, § 7; L. 1974, ch. 352, § 139; L. 1975, ch. 312, § 11; L. 1993, ch. 13, § 4; March 25.

65-3008. Approvals and permits for emission stationary sources. (a) No person shall construct, own, operate, install, alter or use any air contaminant emission stationary source which, in accordance with ru les and regulations, the secretary finds may

cause or contribute to air pollution, unless an appropriate approva l or permit has been issued for the source by the secretary under this act. Approvals or permits issued by the secretary may be subject to conditions consiste nt with the purposes of this act and rules and regulations promulgated under this act. (b) The secretary shall require that a pplications for approvals and permits, and renewals thereof, under this ac t shall be accompanied by appli cation fees and such plans, specifications, compliance plans or other information as the secretary deems necessary. Applications shall be submitted on forms provided by the secretary and shall be signed by a responsible official of the source, who sh all certify the accuracy of the information

submitted. (c) The issuance or holding of an approval or permit shall not convey any property right or exclusive privile ge to the holder thereof. (d) Without any further action on the part of the secretary, an approval or a permit shall become void and without effect on its expiration date unless a completed

KDHE, Bureau of Air 4 Last Revised: March 15, 2011application form and any required fee are fi led with the secretar y on or before the expiration date of the approval or the pe rmit. For purposes of this subsection, the secretary may specify by rule and regulati on an amount of time pr ior to the expiration date of an operating permit by which a comp lete application form and any required fee must be filed with the secretary in order to be considered timely filed. The secretary may provide for a grace period by rule and regulation. (e) The secretary may issue by rule and regulation a general approval or permit covering numerous similar sources. Any genera l approval or permit shall comply with all requirements applicable to approvals or pe rmits under this act. Any source covered by a general approval or permit must apply to the secretary and receive authority to operate under the general approval or permit. (f) The secretary may fix, charge and co llect fees for approvals and permits, and the renewal thereof, to cover all or any part of the cost of administ ering the provisions of Kansas air quality act, other than K.S.A. 65-3027. The secretary shall adopt rules and regulations fixing such fees. The fees shall be deposited in the stat e treasury and credited to the state general fund, except that if all or any portion of the regulatory services for

which a fee is collected under this secti on is performed by a c ounty, city-county or multicounty health department, that portion of su ch fee which pertains to such services, as determined by the secretary, shall be credite d to the local air quality control authority regulation services fund, which is hereby created in the state treasur y, and shall be paid

from such fund to such local air quality control authority. History: L. 1967, ch. 347, § 8; L. 1970, ch. 261, § 8; L. 1974, ch. 352, § 140; L. 1981, ch. 250, § 1; L. 1983, ch. 286, § 3; L. 1984, ch. 313, § 126; L. 1993, ch. 13, § 5; March 25.

65-3008a. Same; public comment and hearing; review. (a) No permit shall be issued, modified, renewed or reopened wit hout first providing the public an opportunity to comment and request a public hearing on the proposed permit action. The request for a public hearing on the is suance of a permit shall set forth the basis for the request and a public hearing shall be held if, in the judgment of the secretary, there is sufficient reason. (b) The secretary shall affi rm, modify or reverse the decision on such permit after the public comment period or public hearing, a nd shall affirm the issuance of any permit the terms and conditions of which comply with all requirements established by rules and regulations promulgated pursuant to the Kansas air quality act. Any person who participated in the public comment process or the public hearing who otherwise would have standing under K.S.A. 77-611, and amendm ents thereto, shall have standing to obtain judicial review of the secretary's fi nal action on the permit pursuant to the act for judicial review and civil enforcement of agency actions in the court of appeals. Any such person other than the applicant for or holder of the permit shall not be required to have

exhausted administrative remedies in order to be entitled to review. The court of appeals shall have original jurisdicti on to review any such final ag ency action. The record before the court of appeals shall be c onfined to the agency record for judicial review and consist of the documentation submitted to or developed by the secretary in making the final permit decision, including the permit appli cation and any addenda or amendments thereto, the permit summary, the draft permit, all written comments properly submitted to the secretary, all testimony presented at any public hearing held on the permit application, all responses by the applicant or permit holder to any written comments or testimony, the secretary's response to the public comments and testimony and the final permit.

KDHE, Bureau of Air 5 Last Revised: March 15, 2011(c) When determined appropriate by th e secretary, the procedures set out in subsection (a) may be required prior to the issuance, modification, renewal or reopening of an approval. History: L. 1993, ch. 13, § 6; L. 2006, ch. 79, § 1; L. 2009, ch. 141, § 24; May 28.

65-3008b. Same; suspension, revocation, denial, modification, issuance. (a) The secretary may suspend or revoke an approva l or a permit if the permittee has violated any provision of the approval or the permit, a ny provision of this act or any rule and regulation adopted under this act and applicable to the permitted source. (b) As applicable to the source for which the approval or permit is sought, the secretary may deny an approval or permit, or a renewal thereof, if the applicant fails to: (1) Submit a complete application; or (2) submit an application fee. (c) The secretary may deny a permit for any proposed new stationary source if the owner or operator of such a source fails to demonstrate to the satisfaction of the secretary that any other sta tionary source owned or operate d by such person, or by any entity controlling, controlled by or under common c ontrol with such pe rson, in this state is in compliance, or meeting a schedule fo r compliance, with all applicable emission

limitations and standards under this act and the federal clean air act, and amendments

thereto. (d) The secretary may modify or reopen an approval or a permit for cause. The secretary shall reopen a permit whenever requi rements under this act become applicable to a permitted source and three or more years remain on the original term of the permit. Any permit revision incorporating a require ment adopted by the secretary shall be effective as soon as practicable , but not later than 18 months after the promul gation of the requirement by the United States e nvironmental protection agency. (e) Within 15 days after the issuance of a notice of intent to take any action authorized by subsection (a), (b), (c) or (d), or within 15 days after the secretary's written decision to affirm, modify or reverse a permit decision pursuant to subsection (b) of K.S.A. 65-3008a, the permittee may file a request for a hearing with the secretary. Each such notice of intent shall spec ify the provision of this act or rule and regulation allegedly violated, the facts constituting the alleged violation and the secr etary's intended action. Each notice of intent or written decision to affirm, modify or reverse a permit decision shall state the permittee's right to request a hearing. Such hearing shall be conducted in

accordance with the Kansas admi nistrative procedure act. (f) The filing of a request by the permittee for an a pproval or permit modification, revocation or amendment, or the filing by the permittee of a notification of planned changes or anticipated noncomplian ce, does not stay any approval or permit

condition. (g) No permit shall be issued, modifie d, amended, revised or renewed unless the United States environmental protection agency has certified that such permit complies with the requirements of the federal clean ai r act, except that a perm it may be issued if the United States environmental protection ag ency has not notified the secretary of the United States environmental protection agency's decision within 45 days after receipt of the proposed permit by such agency. (h) The secretary shall issue or de ny the permit (including requests for modification or to reopen the permit): (1) Within three years of the date the United States environmental protection agency approves the state permitting program pursuant to the provisions of the federal

KDHE, Bureau of Air 6 Last Revised: March 15, 2011clean air act, as amended in November 1990, for permit applications submitted within the first full year after such date; (2) pursuant to the time schedule provi ded by title IV (acid rain) of the 1990 amendments to the federal clean air act, for air contaminant emissi on sources subject to that title; or (3) within 18 months afte r receiving a complete applica tion, in all other cases. (i) Failure of the secretar y to issue or deny the permit, or grant or deny a request to modify or reopen the permit, within the peri od stated in subsection (h) shall not result in the default issuance of a permit, permit amendment, permit modification or permit renewal nor shall such failure result in any ot her entity assuming jurisdiction to act on the permit or the request. History: L. 1993, ch. 13, § 7; March 25.

65-3009. Inspections. The secretary may designate competent representatives who may enter and inspect any property, prem ise or place at any reasonable time for the purpose of investigating either an actual or possible source of air pollution or of ascertaining the state of compliance with this act and regulations in force pursuant thereto. No person shall refuse entry or acce ss to any authorized representative of the secretary who requests entry for purposes of inspection, and who presents appropriate credentials; nor shall an y person obstruct, hamper or inte rfere with any such inspection. If requested, the owner or operator of the premises shall receive a report setting forth levels of emissions and any other facts found which relate to compliance status. History: L. 1967, ch. 347, § 9; L. 1970, ch. 261, § 9; L. 1974, ch. 352, § 141; July 1.

65-3010. Emission control requirements. (a) The secretary shall establish emission control requirements, and requireme nts for open burning (i ncluding appropriate prohibition thereof). Such requirements may be either for such areas as a whole or may vary from area to area, as may be appropr iate to facilitate accomplishment of the purposes of this act and in order to take n ecessary or desirable account of varying local conditions. Any emission which does not conform to a requirement in force pursuant to

this subsection shall constitute a violation of this act. (b) Every local air quality conservation program that is established pursuant to K.S.A. 65-3016, as amended, shall be in comp liance with the rules and regulations set forth for that area by the secretary. (c) Variations from the requirements of subsection (b) of this section may be included in a local air qualit y conservation program only af ter approval by the secretary, following demonstration to the satisfactio n of the secretary that the proposed requirements are not less stringent than the standards and requireme nts established by the secretary and are otherwise consistent with the purposes of this act. Any requirement placed in force pursuant to this subsection shall be preceded by public hearing. The secretary, upon evidence that conditions have changed or that additional or other

information is relevant to a decision with respect to the emission control or open burning requirements concerned may, after public he aring, withdraw any approval previously given to a local requirement pursuant to this subsection. (d) The secretary shall establish reasona ble ambient air quality standards for the state as a whole, or any part thereof, and shall require the emission control requirements of any local program to be c onsistent with such standard s in addition to meeting any other requirements pursu ant to this section. History: L. 1967, ch. 347, § 10; L. 1970, ch. 261, § 10; L. 1974, ch. 352, § 142; July 1.

KDHE, Bureau of Air 7 Last Revised: March 15, 201165-3011. Enforcement; procedure. (a) If the secretary or the director of the division of environment finds that any person has violated any provi sion of any approval, permit or compliance plan or any provision of this act or any rule and regulation promulgated under this act, the secretary ma y issue an order finding such person in

violation of the act and directin g the person to take such acti on as necessary to correct the violation. Any order issued shall specify th e length of time after receipt of the order during which the person must correct the violations. (b) Any person to whom an order is issued pursuant to subsection (a) may request a hearing within 15 days after se rvice of the order. Hearings before the secretary shall be

conducted in accordance with the Kans as administrative procedure act. History: L. 1967, ch. 347, § 11; L. 1970, ch. 261, § 11; L. 1974, ch. 352, § 143; L. 1988, ch. 356, § 201; L. 1993, ch. 13, § 9; March 25.

65-3012. Action to protect health or environment; judicial review procedures. (a) Upon receipt of evidence that emi ssions from an air pollution source or combination of air pollution sources pres ents: (1) An imminent and substantial endangerment to public health or welfare or to the environment; or (2) for an imminent or actual violation of this act, any rules and re gulations adopted under this act, any orders issued under this act or any permit conditions required by this act, the secretary may issue a temporary order not to exceed seven days in duration, directing the owner or operator, or both, to take such steps as necessary to prevent the act or eliminate the practice. (b) Upon issuance of the temporary order, the se cretary may commence an action in the district court to enjoin acts or practi ces specified in subsect ion (a) or request the attorney general or appropriate county or district attorney to commence an action to enjoin those acts or practices. (c) The secretary may bring suit in any court of competent jurisdiction to immediately restrain the acts or practices sp ecified in subsection (a). An action for injunction under this subsection shall have pr ecedence over other cases in respect to order

of trial. (d) The owner or operator, or both, aggrieved by an or der of the secretary issued pursuant to this section shall be immediately entitled to judicial review of such agency action by filing a petition for judicial review in district court. The aggrieved party shall not be required to exhaust administrative remedies. A petition for review under this subsection shall have precedence over othe r cases in respect to order of trial. History: L. 1967, ch. 347, § 12; L. 1970, ch. 261, § 12; L. 1974, ch. 352, § 144; L. 1993, ch. 13, § 12; L. 2009, ch. 141, § 25; May 28.

65-3013. Variances; hearing. (a) Any person who owns or is in control of any plant, building, structur e, process or equipment may apply to the secretary for a variance from rules and regulations gove rning the quality, nature, dura tion or extent of emissions. The application shall be accompanied by such information and data as the secretary may reasonably require. The secretary may grant su ch variance if the secretary finds that: (1) The emissions occurring or propos ed to occur do not endanger or tend significantly to endanger huma n health or safety; and (2) Compliance with the rules and regulations from which variance is sought would produce serious hardships without equa l or greater benefits to the public.

KDHE, Bureau of Air 8 Last Revised: March 15, 2011(b) No variance shall be granted pursuant to this section except after public hearing on due notice and until th e secretary has considered th e relative interests of the applicant, other owners of property likely to be affected by th e discharges, and the general public. (c) Any variance or renewal thereof shall be granted within the requirements of subsection (a) and for time periods and unde r conditions consistent with the reasons therefor, and within the following limitations: (1) If the variance is granted on the ground that there is no practicable means known or available for the adequate preventi on, abatement or control of the air pollution involved, it shall be only until the necessary means for prevention, abatement or control become known and available and subject to the taking of any substitute or alternate measures that the secretary may prescribe. (2) If the variance is granted on the gr ound that compliance with the particular requirement or requirements from which variance is sought will necessitate the taking of measures which, because of their extent or cost, must be spread over a considerable period of time, it shall be for a period not to exceed such reasonable time as the secretary finds is requisite for the taking of the neces sary measures. A variance granted on the ground specified herein shall contain a timetable for the taking of action in an expeditious

manner and shall be conditioned on adherence to such timetable. (3) If the variance is granted on the ground that it is justified to relieve or prevent hardship of a kind other than that provided fo r in subsections (c)(1) a nd (2), it shall be for not more than one year. (d) Any variance granted pursuant to this section may be renewed on terms and conditions and for periods which would be appr opriate on initial granti ng of a variance. If complaint is made to the secretary on account of the variance, no renewal thereof shall be granted, unless following public hearing on th e complaint on due notice, the secretary finds that renewal is justified. No renewal sh all be granted except on application therefor. Any such application shall be made at least 60 days prio r to the expiration of the variance. Immediately upon receip t of an application for rene wal the secretary shall give public notice of such application in accordance with rules and regulations of the

secretary. (e) A variance or renewal sh all not be a right of the applicant or holder thereof but shall be in the discretion of the secretary. Within 15 days after the secretary's written decision to grant or deny a variance or rene wal thereof, the applicant or holder of a variance or renewal may file a request for a h earing with the secretar y. Such hearing shall

be conducted in accordance with the Kansas ad ministrative procedure act. However, any person who participated in the public comm ent process or the public hearing or who otherwise would have standing under K.S.A. 77-611, and amendments thereto, and is adversely affected by any final action of the s ecretary pursuant to this section shall have standing to obtain judici al review of the secretary's fina l action on the variance or renewal in the court of appeals. Any such person othe r than the applicant for or holder of the permit shall not be required to have exhauste d administrative remedies in order to be entitled to review. The court of appeals shall have original jurisdiction to review any such final agency action. The record before the court of appeals shall be confined to the agency record for judicial review and consist of the documentation submitted to or developed by the secretary in making the fina l variance or renewal decision, including the variance or renewal application and any addenda or amendments thereto, the variance or renewal summary, the draft variance or renewa l, all written comments properly submitted

KDHE, Bureau of Air 9 Last Revised: March 15, 2011to the secretary, all testimony presented at any public hearing held on the variance or renewal application, all responses by the applicant or holder of a variance or renewal to any written comments or testim ony, the secretary's response to the public comments and testimony and the final variance or renewal. (f) Nothing in this section and no vari ance or renewal granted pursuant hereto shall be construed to prevent or limit the application of the em ergency provisions and procedures of K.S.A. 65-3012, and amendments thereto, to any person or any person's

property. History: L. 1967, ch. 347, § 13; L. 1970, ch. 261, § 13; L. 1974, ch. 352, § 145; L. 1986, ch. 318, § 93; L. 1988, ch. 356, § 202; L. 2006, ch. 79, § 2; April 13.

65-3014. History: L. 1967, ch. 347, § 14; L. 1970, ch. 261, § 14; L. 1974, ch. 352, § 146; L. 1986, ch. 318, § 94; Repealed, L. 1993, ch. 13, § 18; March 25.

65-3015. Records and information open; trade secret exception. (a) Except as provided in subsection (b), any records, repo rts or information obtained pursuant to this act shall be available to the public. (b) Upon a showing satisfactory to the secretary by any person that records, reports or information, or a par ticular part thereof (other than emission data), to which the secretary has access under this act, if made public, would divulge methods or processes entitled to protection as trad e secrets of such person under the uniform trade secrets act (K.S.A. 60-3320 et seq. and amendments ther eto), the secretary sh all consider such record, report or information, or particular portion thereof, confidential, except that: (1) Such record, report or informa tion may be disclosed to officers, employees or authorized representatives of the United States government concerned with carrying out responsibilities under the fede ral clean air act and amendmen ts thereto; and (2) this subsection shall not apply to any provision in any air quality approva l or permit issued by the secretary and the public shall have access to such approvals and permits in their entirety. History: L. 1967, ch. 347, § 15; L. 1970, ch. 261, § 15; L. 1973, ch. 254, § 1; L. 1974, ch. 352, § 147; L. 1993, ch. 13, § 13; L. 2005, ch. 67, § 7; July 1.

65-3015a. History: L. 1970, ch. 261, § 20; Repealed, L. 1973, ch. 254, § 2; July

1.

65-3016. Local air quality conservation programs. Any city, county, city and county, or any combination of two (2) or more cities, counties or cities and counties are authorized to conduct tests and surveys to dete rmine the degree of purity of the air within its jurisdiction, and may reque st consultation, technical as sistance and cooperation from the secretary in conducting such tests and survey s. If such tests and surveys indicate that unsatisfactory air quality exists , is likely to exist or is likely to occur, the governing body of said city or county shall ha ve the authority, upon approval of the secretary, to establish a local air quality c onservation authority: Provided, That no local air quality conservation authority shall be so approved, except after a public hearing as provided in this act. Any local air quality conservation authority which was in existence prior to May 1, 1967, may apply to the secretary for approval as a local air quality conservation authority hereunder. In approving or disapproving the formation of a local air quality conservation authority, the secretary shall determine: (1) The need for a local air quality conservation authority in the jurisdiction proposed; (2) th e likely ability of the loca l air quality conservation authority, as proposed, to maintain satisfactor y air quality in its jurisdiction; and (3)

KDHE, Bureau of Air 10 Last Revised: March 15, 2011whether or not the jurisdicti on of the proposed local air qu ality conservation authority completely contains the affected area. Local air quality control authorities shall have authority to enforce the rules, regulations and standards adopted by the secretary and to esta blish such additional rules, regulations and standards as necessary to ma intain satisfactory air quality within their jurisdiction: Provided, That any rule, regula tion or standard esta blished by a local air quality conservation authority pertaining to h ealth hazard shall be in compliance with the rules and regulations set forth fo r that area by the secretary: Provided further, That until the secretary shall adopt rules, regulations and standards respecti ng any area within the jurisdiction of a local air qua lity conservation authority, the rules, regulations and

standards of such local author ity respecting said area or ar eas shall have full force and effect without approval th ereof by the secretary. Upon the establishment of a local air quality conservation authority, such authority and the secretary shall have concu rrent jurisdiction over the local area with power and authority to maintain adequate air quality in accordance with the rules, regulations and standards a dopted by the secretary. When two (2) or more cities, two (2) or more counties or a c ity and a county, or any combination thereof, are affected by a common air mass of unsatisfactory quality and the respective local air quality control authoritie s, if such exist, are for any reason unable to agree upon a solution or settlement to su ch air quality problem, the secretary shall, after review and investigation, render decisions and make findi ngs in settlement thereof. History: L. 1967, ch. 347, § 16; L. 1970, ch. 261, § 16; L. 1974, ch. 352, § 148; July 1.

65-3017. Motor vehicle pollution. (a) As the state of knowledge and technology relating to the control of emissions from moto r vehicles may permit or make appropriate, and in furtherance of the purposes of this act, the secretary may provide by rules and regulations for the control of emissions from motor vehicles. Such rules and regulations may prescribe requirements for the installati on and use of equipment designed to reduce or eliminate emissions and for the proper main tenance of such equipment and of vehicles. Any rules or regulations pursuant to this sec tion shall be consistent with provisions of federal law or regulations, if any, relating to control of emissions from the vehicles concerned. The secretary shall not require, as a condition precedent to th e initial sale of a vehicle or vehicular equipment, the inspec tion, certification or other approval of any feature or equipment designed for the control of emissions from motor vehicles, if such feature or equipment has been certified, appr oved or otherwise au thorized pursuant to

federal law. (b) As used in this section "motor vehi cle" shall have the same meaning as in

K.S.A. 8-1437. History: L. 1967, ch. 347, § 17; L. 1970, ch. 261, § 17; L. 1974, ch. 352, § 149; L. 1975, ch. 33, § 8; L. 1976, ch. 52, § 4; July 1.

65-3018. Administrative fines. (a) The secretary or the director of the division of environment, upon a finding that a person has violated any provi sion of K.S.A. 65- 3025 and amendments thereto, may impose a penalty not to exceed $10,000 which shall

constitute an actual and substantial economic deterrent to the viol ation for which it is

assessed. In the case of a conti nuing violation, every day such violation continues shall be deemed a separate violation. (b) No penalty shall be imposed pursuan t to this section except after notice of violation and opportunity for hearing upon the written order of the secretary or the

KDHE, Bureau of Air 11 Last Revised: March 15, 2011director of the division of environment issued to the person who comm itted the violation.

The order shall state the violat ion, the penalty to be imposed and the right to request a hearing thereon. The request for hearing shall be in writing, directed to the secretary and filed with the secretary within 15 days afte r service of the order. Hearings under this

section shall be conducted in accordance with the Kansas administrative procedure act. (c) Nothing in this act shall be construed to abridge, limit or otherwise impair the right of any person to damages or other relief on account of injury to persons or property and to maintain any action or othe r appropriate proceeding therefor. History: L. 1967, ch. 347, § 18; L. 1970, ch. 261, § 18; L. 1974, ch. 352, § 150; L. 1993, ch. 13, § 14;

March 25.

65-3019. Application of act; limitations. Nothing in this act shall be construed

to: (a) Grant the secretary any jurisdicti on or authority with respect to air contamination existing solely within commercia l and industrial plants, works and shops. (b) Affect the relations betw een employers and employees. (c) Supersede or limit the applicability of any law or ordinance relating to industrial health, safe ty or sanitation. History: L. 1967, ch. 347, § 19; L. 1970, ch. 261, § 19; L. 1974, ch. 352, § 151; July 1.

65-3020. Severability. If any clause, paragraph, subsection or section of this act

shall be held invalid or uncons titutional, it shall be conclusively presumed that the legislature would have enacted the remainder of this act without such clause, paragraph,

subsection or section. History: L. 1967, ch. 347, § 20; May 2.

65-3021. Power generation facility; impact upon air quality; definitions. As used in this act the following terms shall have the meanings ascribed to them herein: (a) "Power generation facility" means any physical plant used for the production or generation of electricity, or coal gasification facility. (b) "Secretary" means the secretar y of health and environment. (c) "Person" means any individual, company, corporation, institution, municipality, township, county, st ate agency or federal agency. History: L. 1978, ch. 352, § 1; July 1.

65-3022. Same; determining and monitoring of power genera tion facilities environmental impact; programs for; fees; rules and regulations. In order to defray costs in determining and monitoring the environmental impact of power generation facilities with respect to air quality and, in the case of nuclear powered generation facilities, the overall radiological impact thereo f, the secretary is authorized and directed to adopt rules and regulations to provide for the establishment of fees and for the collection thereof from each such facility. Su ch fees shall be determined and collected annually, and such determination shall be base d upon the size and type of such facilities. In establishing programs fo r determining and monitoring environmental impact, the secretary shall take into consideration monitoring progr ams conducted by other persons and where possible avoid duplication of effo rt and expense. The secretary may also provide for quality review and evaluation of monitoring conducted by other persons in order to further the objectives of this act and to determine the extent and necessity of

KDHE, Bureau of Air 12 Last Revised: March 15, 2011monitoring programs to be c onducted by the department of health and environment. History: L. 1978, ch. 352, § 2; July 1.

65-3023. Same; fees; disposition of moneys; power generating facility fee

fund created. The secretary shall remit all moneys received from fees under K.S.A. 65- 3022, and amendments thereto, to the state treasurer in accordance with the provisions of K.S.A. 75-4215, and amendments thereto. Upon r eceipt of each such remittance, the state treasurer shall deposit the entire amount in the state treasury to the credit of the power generating facility fee fund, which fund is hereby created. All expenditures from such fund shall be made in accordance with appropr iation acts upon warrants of the director of accounts and reports issued pursuant to vouchers approved by the secretary. History: L. 1978, ch. 352, § 3; L. 1983, ch. 286, § 4; L. 2001, ch. 5, § 242; July 1.

65-3024. Emissions fees. (a) The secretary may fix, charge and collect annual emissions fees in amounts necessary to pay th e direct and indirect costs of administering the provisions of the Kansas air quality ac t. The secretary sh all adopt rules and regulations fixing such fees and shall period ically increase or decrease such fees

consistent with the need to cover the dir ect and indirect costs of administering the program. To the extent possible, annual emission fees shall be based upon actual emissions determined pursuant to rules and regulations adopted by the secretary. For purposes of determining emission fees for a f acility, emissions of any single regulated pollutant in excess of 4,000 tons per year shall not be included in the calculation when determining the total emissions from the facility. (b) There is hereby established in the state treasury the air quality fee fund. Revenue from the following sources shall be deposited in the state treasury and credited

to the fund: (1) Fees collected under subsection (a); (2) any moneys recovered by the state unde r the provisions of this act, including administrative expenses, civil penalties and moneys paid under any agreement, stipulation or settlement; and (3) interest attributable to i nvestment of moneys in the fund. (c) Moneys deposited in the fund shall be expended only for the purpose of administering the Kansas air quality act, including funding of a technical and environmental compliance assistance program , and for no other governmental purposes. (d) On or before the 10th of each month, the director of accounts and reports shall transfer from the state general fund to the air quality f ee fund interest earnings based

on: (1) The average daily bala nce of moneys in the ai r quality fee fund for the preceding month; and (2) the net earnings rate of the pooled money inve stment portfolio for the preceding month. (e) All expenditures from the fund shall be made in accordance with appropriation acts upon warrants of the director of accounts a nd reports issued pursuant to vouchers approved by the secretary for the purposes set forth in this section. History: L. 1993, ch. 13, § 8; L. 1996, ch. 253, § 13; May 23.

65-3025. Unlawful acts. It shall be unlawful for any person to do any of the following:

KDHE, Bureau of Air 13 Last Revised: March 15, 2011(a) Violate any provision of an order issued under this act. (b) Violate any provision of an approva l or permit issued under this act. (c) Violate any provision of this act or any rule and regula tion promulgated under this act, unless the secretary makes a determ ination relating to the permittee that the specified provisions referred to in such determ ination are not applicable to the source and the permit includes that determination or a concise summary thereof. Compliance with the provisions of a permit shall be deemed compliance with applicable provisions of this act or any rule and regulati on promulgated under this act if the permit includes the applicable requirements of such provisions. Nothing in this subsection (c) or in any permit shall alter or affect: (1) The provisions of section 303 of the federal clean air act (emergency orders), including the authority of the administrator of the United States environmental protection agency under that s ection; (2) the provisions of K.S.A. 65-3012 and amendments thereto; (3) the liability of an owner or operator of a source for any violation of applicable requirements prior to or at the time of permit issuance; (4) the applicable requirements of the acid rain pr ogram consistent with section 408a of the federal clean air act; (5) the ability of the United States environmental protection agency to obtain information from a source pursuant to section 114 of the federal clean air act; or (6) the ability of the secretary to obtain information from a source pursuant to this act. (d) Construct, modify, alter, use or operate an air contaminant emission stationary source without an approval or pe rmit allowing such cons truction, modification, alteration, use or operation. (e) At any time, refuse or hinder entr y, inspection, sampling or examination or copying of records related to the purposes of this act by an agent or employee of the secretary after such agent or employee iden tifies and gives notice of the agent's or employee's purpose. (f) Fail to pay any fee required by this act or rules and regulations promulgated

under this act. (g) Knowingly make any false material statement, representation or certification in any application, record, report, permit or other document filed, maintained or used for purposes of compliance with this act. (h) Knowingly destroy, alter or conceal any record required to be maintained under rules and regulations promulgate d by the secretary under this act. History: L. 1993, ch. 13, § 10; March 25.

65-3026. Criminal penalties. (a) Violation of any provision of subsections (a) through (f) of K.S.A. 65-3025, and amendments thereto, is a class A nonperson

misdemeanor. (b) Knowingly violating any provision of K.S.A. 65-3025 is a severity level 10, nonperson felony. (c) In the case of a continuing violati on, every day such violation continues shall be deemed a separate violation. (d) The county or district attorney of every county shal l file appropriate actions

for enforcement of this secti on upon request of the secretary or upon the county or district attorney's own motion after cons ultation with the secretary. History: L. 1993, ch. 13, § 11; L. 1995, ch. 251, § 19; July 1.

65-3027. Small business assistance program; compliance advisory panel. (a) There is hereby created the small business st ationary source technical and environmental

KDHE, Bureau of Air 14 Last Revised: March 15, 2011compliance assistance program, to be administered by the secretary. The program shall include each of the following: (1) Adequate mechanisms for deve loping, collecting and coordinating information concerning compliance met hods and technologies for small business stationary sources and programs to encour age lawful cooperation among such sources and other persons to further compliance with this act. (2) Adequate mechanisms for assisting small business stationary sources with pollution prevention and accidental release de tection and prevention, including providing information concerning alternative technologi es, process changes, products and methods of operation that help reduce air pollution. (3) A designated office within the Kansas department of health and environment, reporting directly to the secretary, to serv e as ombudsman for small business stationary

sources in connection with im plementation of this act. (4) A compliance assistance program for small business stationary sources which assists small business stationary sources in determining applicable requirements and in receiving permits under this act in a timely and efficient manner. (5) Adequate mechanisms to assure that small business stationary sources receive notice of their rights under this act in such manner and form as to assure reasonably adequate time for such sources to evaluate compliance methods and any relevant or applicable proposed or final rule and regul ation or standard a dopted under this act. (6) Adequate mechanisms for informi ng small business stat ionary sources of their obligations under this act, including mechanisms for referring such sources to qualified auditors or for providi ng audits of the operations of such sources to determine compliance with this act. (7) Procedures for consid eration of requests from a small business stationary source for modification of: (A) Any work practice or technological method of compliance; or (B) the schedule of milestone s for implementing such work practice or method of compliance preceding any app licable compliance date, based on the technological and financial cap ability of any such small bus iness stationary source. No such modification may be granted unless it is in compliance with the applicable requirement of this act and rules an d regulations promul gated hereunder. (b) "Small business stationary source" means a stationary air contaminant

emission source that: (1) Is owned or operated by a person that employs 100 or fe wer individuals; (2) is a small business concern as defined in the federal small business act; (3) is not a major stationary source; (4) does not emit 50 tons or more per year of any regulated air contaminant; and (5) emits less than 75 tons per year of all regulated air contaminants. (c) Upon petition by a source, the secr etary, after notice and opportunity for public comment, may include as a small busine ss stationary source for purposes of this section any stationary source wh ich does not meet the criteria of subsection (b)(3), (4) or (5) but which does not emit more than 100 tons pe r year of all regulated air contaminants. (d) The secretary may exclude from the small business stationary source definition any category or subcategory of sources that the administrator of the United States environmental protection agency determines to have sufficient technical and financial capabilities to meet the requirement s of the federal clean air act without the application of this program, as provided by section 507(c)(3)(A) of the 1990 amendments

to the federal clean air act.

KDHE, Bureau of Air 15 Last Revised: March 15, 2011(e) The secretary, in consultation with the administrator of the United States environmental protection agency and the ad ministrator of the United States small business administration and after providing noti ce and the opportunity for public hearing, may exclude from the small business sta tionary source definition any category or subcategory of sources that the secretary de termines to have sufficient technical and financial capabilities to meet the requirements of the act wit hout the application of this

section. (f) There is hereby created a complian ce advisory panel composed of seven individuals. The compliance advisory panel shall: (1) Render advisory opinions concerning the effectiveness of the small business stationary source technical and environmental compliance assistance program, difficulties encountered and degree and se verity of enforcement; (2) make periodic reports to the administra tor of the United States environmental protection agency concerning compliance of the small business stationary source technical and environmental compliance assist ance program with the requirements of the federal paperwork reduction act, the regulator y flexibility act and the equal access to justice act; (3) review information for small business stationary sources to assure such information is understandable by the layperson; and (4) have the small business stationary source technical and environmental compliance assistance program serve as th e secretariat for the development and dissemination of such reports and advisory opinions. (g) The compliance advisory panel shall consist of: (1) Two members who are not owners, or representatives of owners, of small business stationary sources, appointed by th e governor to represen t the general public; (2) two members who are owners, or w ho represent owners, of small business stationary sources, one appointed by the speaker and one appointed by the minority

leader of the Kansas hous e of representatives; (3) two members who are owners, or w ho represent owners, of small business stationary sources, one appointed by the pr esident and one appointed by the minority leader of the Kansas senate; and (4) one member appointed by the secretary to represent the department of health

and environment. (h) Members of the compliance advisory panel serving on the effective date of this act by appointment by the governor, the spea ker of the house of representatives or the president of the senate shall serve for terms ending June 30, 1998; members serving on the effective date of this act by appointment by the minority leader of the house of representatives, the minority leader of th e senate or the secretary of health and environment shall serve for terms ending J une 30, 1997. Upon expiration of such terms, the term of each member appointed to a vacan cy created by expiration of a term shall be two years commencing on July 1 immediately following expira tion of the term of the member's predecessor. Any vacancy occurring on the panel shall be filled for the unexpired term by appointment by the original appointing authority. (i) A chairperson shall be elected a nnually by the members of the compliance advisory panel. A vice-chairperson shall be de signated by the chairperson to serve in the absence of the chairperson.

KDHE, Bureau of Air 16 Last Revised: March 15, 2011(j) The secretary may reduce any fee require d by this act for a ny classification of

small business sources to take into account th e financial resources of such classification. History: L. 1993, ch. 13, § 15; L. 1997, ch. 18, § 1; Apr. 3.

65-3028. Rules and regulations continued in effect. All rules and regulations promulgated pursuant to K.S.A. 65-3001 et seq ., and amendments thereto, in existence on the effective date of this act shall continue to be effective until revised, amended, repealed or nullified pursuant to law. History: L. 1993, ch. 13, § 16; March 25.

65-3029. Duties of secretary; approval of prevention of significant deterioration permit. (a) The secretary shall timely approve a prevention of significant deterioration permit (PSD) to sunflower electric power corporation to be issued consistent with the settlement agreemen t executed May 4, 2009, by sunflower electric power corporation and the governor of the state of Kansas to resolve all claims or causes of action, or both, pending before various courts and administ rative agencies consistent with article V of the settlement agreement. (b) This section shall be part of and s upplemental to the Kans as air quality act. History: L. 2009, ch. 141, § 42; May 28.

65-3030. Severability clause. The provisions of this ac t [*] are declared to be severable and if any provision, wo rd, phrase or clause of the act or the application thereof to any person shall be held i nvalid, such invalidity shall not affect the validity of the remaining portions of this act. History: L. 2009, ch. 141, § 43; May 28.

Please note that this copy of the Kansas Air Quality Statutes may contain typographical errors. The text contained herein is from the State of Kansas Legislature

website: http://www.kslegislature.org/li/statute/ The following disclaimer is from that website:

NOTICE

The text of the Kansas Statutes is provided with the permission of the Revisor of

Statutes of the State of Kansas.

The Information Network of Kansas (INK) has made every effort to create an accurate electronic representation of the Kans as Statutes. In some cases there may be minor discrepancies with the printed document. In those cases neither INK nor the State of Kansas shall be liable for the effect of those discrepancies.

KDHE, Bureau of Air 17 Last Revised: March 15, 2011

# Section D

# Section EOral comment was received from one (1) person from the public during the hearing. Each

person that presented oral comment was asked to provide a writt en copy of the comment for the administrative record. All public comment received is listed in the agency's responsiveness

summary.

After the hearing, no public comment was received during the remainder of the comment period, which concluded at 5:00 p.m. on November 2, 2012. No other comment was received during the public comment period. A copy of the public comment received is included in this report as Attachment 3.

POST -HEARING ACTIVITIES

Following the close of the public comment period, all comments received were fully considered and where appropriate, additional changes in the proposed regulations were made. The agency's response to the public comments, including the additional regulation changes proposed in

response to the comments, is detailed in the agency's responsiveness summary,

which is included in this report as Attachment 4.

RECO MMENDATIONS

On the basis of the administrative record developed in this matter, the hearing officer

finds and concludes that KDHE has met the public participation requirements for adopting the proposed new and amended regulations.

FINDINGS OF FACT

1. K.S.A.2011 Supp. 65-3005 authorizes the Secretary of the Kansas Department of Health

and Environment to adopt and amend administrative rules and regulations related to implementation of the Kansas air quality act.

2. Pursuant to this authority, the Secretary promulgated the K.A.R. 28-19-350, Prevention of Significant Deterioration (PSD) and K.A.R. 28-19-735, 750, and 750a, NESHAP- MACT regulations at issue, made a statement of the economic impact and environmental benefit and published notice of the public comment period and hearing in the Kansas Register on August 30, 2012.

3. The public hearing was held on November 1, 2012 and the public comment period that was established for receiving comments on the adoption of the proposed regulations was concluded on November 2, 2012.

4. Comments related to the adoption of the proposed regulations were received and all comments have been fully considered. Changes in the proposed regulations were needed

to address these comments and are detailed in the agency's responsiveness summary.

# Attachment 1

# Attachment 2

# Attachment 3

# Attachment 4Attachment 4 to the Report of the Hearing Officer Page 1 of 8 ATTACHMENT #4 TO THE REPORT OF THE HEARING OFFICER

K.A.R. 28

- 19

- 350, 28

- 19

- 735, 28

- 19

- 750, 28

- 19

- 750a

Proposed Amended Regulations

Legal Authorities

Kansas Statutes Annotated (K.S.A.) 65

- 3005, as amended, authorizes and directs the

s ecretary to adopt such rules and regulations as necessary to enable the secretary to carry out the purpose and provisions of the Kansas Air Quality Act, K.S.A. 65

- 3001 et seq

. and amendments thereto.

Responsiveness Summary

On November 1, 2012, a public hearing was held at 10:00 a.m. in t he Flint Hills Conference

Room of t he Curtis State Office Building, Topeka, Kansas. The purpose of the hearing was to consider the adoption of proposed amendments to permanent air quality regulations

K.A.R. 28

- 19

- 350, 28

- 19

- 735, 28

- 19

- 750, and 28

- 19

- 750a.

The public comment period began with the publication of the Notice of Hearing on Proposed Administrative Regulations in the Kansas Register on August 30, 2012, and ended on November 2, 2012. The organizations and peo ple that submitted comments during the public comment period are summarized in the table below.

Organization Name Type of
Comment

Joint Committee on Administrative Rules and Regulations Raney L. Gilliland Written

Westar Energy, Inc. Daniel R. Wilkus Written & Oral

The Joint Committee on Administrative Rules and Regulations (JCARR) considered the proposed regulations at its meeting on September 17, 2012. KDHE received a comment letter from JCARR on September 27, 2012, which can be found in Attachme nt 3 to the Report of the Hearing Officer. JCARR’s comments and KDHE’s responses follow.

Comment: “ The Committee commends the agency on its recent e fforts

a nd encourages it to continue its dialog with the U.S. Environmental

Protection Agency on workable solutions to allow rural states such

as Kansas to meet clean air standards. ”

Response: KDHE staff appreciate the Joint Committee’s recognition of KDHE ’s efforts to work with the U.S. Environmental Protection Agency to find solutions that

work for Kansas and Kansans.Attachment 4 to the Report of the Hearing Officer Page 2 of 8 Action: KDHE will continue our efforts to work with EPA to implement solutions

to maintain clean air standards

. N o change was made to the proposed regulation
amendments as a result of these comments.

Comment: K.A.R. 28

- 19

- 350. The Economic Impact Statement for this rule and regulation states “noncompliance would result in the loss of affiliated federal transportation funding

dollars.” Th e Committee requests information about the formula that would be used to calculate that potential amount and an estimate of that amount

.

Response: The Clean Air Act and EPA regulations set the procedures that the

states and EPA must follow in the event that continuing exceedances of the National

A mbient Air Quality Standards occur. The process that can result in sanctions which

cause the loss of federal highway transportation dollars takes at least three years;
from where we are now, it is more likely a five or six year time frame.

Federal Highway Fund restrictions (sanctions) are not determined by a formula but by the Federal Highway Administration and Environmental Protection Agency regulations. A total of $356.8M in p rojects for 2014 would have to be analyzed for conformity should the KC and Wichita areas be designated nonattainment. Please
refer to Responsiveness Summary Addendum #1 for more detailed explanation about transportation conformity and air quality.

Action: No change was made to the proposed regulation amendments as a result of

these comments.

Westar Energy, Inc. Director of Air Programs, Daniel R. Wilkus orally presented the following comments at the KDHE public hearing on November 1, 2012.

Commen t: “Westar requests that KDHE adopt, as part of these proposed amendments

to K.A.R. 28

- 19

- 350, the USEPA revisions to the definition of ‘regulated NSR pollutant’. Specifically, Westar requests the adoption of the Final Rule signed on October 12, 2012. This Final Rule ensures the removal of the general requirement to include condensable particulate matter when considering particulate matter emissions in certain contexts of Prevention of Significant Deterioration (PSD) and New Source Review (NSR) regulat ions.”

Response: The adoptions by reference from 77 FR 65107

- 65119 published in the October 25, 2012 Federal Register , are limited to those at 40 C.F.R. 51.166, Appendix S to Part 51, and 40 C.F.R. 52.21 (Addendum #2 attached) . KDHE has proposed adopting EPA’s recent correction to their May 16, 2008 “Implementation of the New Source Review (NSR) Program for PM 2.5 ” by reference.

Action: KDHE has addressed Westar’s comment by incorporating the adoption by reference of the O ctober 25, 2012 (77 FR 65118

- 65119) amendments into the proposed K.A.R. 28

- 19

- 350

. The final permanent regulation K.A.R. 28

- 19

- 350 is scheduled for publication on December 13, 2012, and will be effective on December 28, 2012.Attachment 4 to the Report of the Hearing Officer Page 3 of 8 Nonattainment, Transporta tion Conformity and Highway Funding Sanctions

(Addendum #1 to Responsiveness Summary)

K.A.R. 28

- 19

- 350, 28

- 19

- 735, 28

- 19

- 750, 28

- 19

- 750a
Designation

The U.S. Environmental Protection Agency (EPA) reviews the National Ambient Air Quality Standards (NAAQS) every five years. The States conduct ambient air quality monitoring at selected sites to measure how regional air quality compares to the standard. Co ntinuing exceedances of the National Ambient Air Quality Standard (NAAQS) can cause areas to be designated as nonattainment for a specific air pollutant. In the Kansas City and Wichita metropolitan areas and surrounding counties, a nonattainment designatio n for the air pollutant ozone could occur sometime in 2014.
EPA is currently revising the ozone NAAQS; the existing standard dates from 2008.

The Environmental Protection Agency’s publication of a revised NAAQS will start the

attainment/nonattainment process which is a series of requirements that the affected States and local government entities must address. The process of addressing nonattainment takes at least three years and can ultimately result in restrictions on spending federal highway transpo rtation dollars (sanctions) if the affected state and local agencies fail to make adequate progress and cannot get EPA State Implementation Plan approval. From where we currently stand, it is more likely a five

- or six

- year time frame before loss of fundi ng could occur.

State Implementation Plan (SIP) Submittal and Review

Within 36 months of nonattainment designation for the ozone standard, Kansas must submit a ‘nonattainment SIP,’ also known as an ‘attainment demonstration,’ which outlines the steps tha t will be taken to bring emissions of ozone precursors down such that the ozone values are less than the NAAQS. This effort will require cooperation and coordination amongst Missouri, Kansas, Mid

America Regional Council (MARC), Wichita Area Metropolitan Planning Organization (WAMPO) and all the political subdivisions within the metropolitan areas.

Conformity

The conformity provisions of the CAA require that States and affected metropolitan planning organizations, in Kansas’ case the Mid

- America Regiona l Council (MARC), the Wichita Area Metropolitan Planning Organization (WAMPO) and the U.S. Department of Transportation (USDOT) determine the conformity of transportation plans and transportation improvement programs (TIPs) with State air quality plans. If these plans are not completed and approved by EPA, sanctions against the disbursement of certain federal highway funding to the affected state(s) may be imposed.Attachment 4 to the Report of the Hearing Officer Page 4 of 8 Sanctions

The Federal Highway Administration may not approve or award any grants in th e nonattainment area except those specifically exempted. Federal highway funding restrictions,
when applied, halt the approval of projects and the award of any grants funded under Title 23,
United States Code, except those types of projects as safety projects that are defined in the
Clean Air Act. Transportation conformity and sanctions can apply to projects within the following major funding programs:

1. Surface Transportation Program (STP)

2. National Highway System (NHS)

3. Interstate Maintenance Program

4. Highway Bridge Replacement and Rehabilitation Program

5. Congestion Mitigation and Air Quality Improvement Program (CMAQ)

Further, some types of projects generally do not meet the exemption criteri a of the Clean Air Act and would be subject to federal highway funding restrictions. These include projects that expand highway capacity, nonexempt project development activities, and any other project that does not explicitly meet exemption criteria.

Exempted projects fall under three categories:

1. Safety programs and projects

2. Seven congressionally

- authorized activities, such as capital programs for public transit

3. Air quality improvement projects that would not encourage single occupancy vehicle
( SOV) capacity

After two years, EPA can sanction an entire State for the failing of a single city, and it can sanction
at any time a whole state for the failure of a state agency or entity, such as the State legislature.

Summary

KDHE worked with KDOT an d USDOT to provide some basic information about projects that will have to be analyzed for conformity and exemption. Essentially, the agencies will work together to look at a comprehensive suite of activities, both voluntary and regulatory, which will

be required for the nonattainment SIP. A total of $356.8M in projects for 2014 would have to
be analyzed for conformity should the KC and Wichita areas be designated nonattainment.Attachment 4 to the Report of the Hearing Officer Page 5 of 8 MARC (Johnson, Wyandotte, Leavenworth, Miami Counties)

FFY 2011 FFY 2012 FFY 2013 FFY 2014 Total FHWA Funding $134M $104M $70M $245 million
Major Projects

US

- 69 improvements for future expansion to a 6

- Lane freeway

I

- 35 SW Johnson County Interchange Project

I

- 70 and K

- 7 Interchange

I

- 435, I

- 35 and K

- 10 Junction (Gateway Project)

Reconstruction of Roe Ave. Interchange

Sedgwick, Butler, Harvey, Sumner and Reno Counties

FFY 2011 FFY2012 FFY 2013 FFY 2014 Total FHWA Funding $64 million $66 million $20.9 million $93.8 million
Major Projects

I

- 235 in Wichita

US

- 50 in Harvey County

I

- 135 in Wichita

US

- 54 in Wichita

The federal highway funding restrictions would only come into play if the agencies fail to establish conformity within required time frames, to meet emission budgets, or to pass a conformity test. The conformity test assesses the impa cts of projects on air quality.Attachment 4 to the Report of the Hearing Officer Page 6 of 8Attachment 4 to the Report of the Hearing Officer Page 7 of 8Attachment 4 to the Report of the Hearing Officer Page 8 of 8

# Section F

# Section GSIP Revision Submittal, Incorporation of Amended K.A.R. 28

- 19

- 350 Page G

- 1 February 2013 Technical Support: Prevention of Significant Deterioration (Response to Elements of 40 C.F.R. Part 51, Appendix V, Section 2.2)

1. Identification of all regulated pollutants affected by the plan. [ 40 C.F.R. § 51, Appendix V, Section 2.2(a)]

The plan re vision w ill incorporate changes to the Kansas Air Quality Regulations into the State Implementation Plan (SIP) regarding Kansas Administrative Regulation (K.A.R.)

28

- 19

- 350

. K.A.R. 28

- 19

- 350 implements the Prevention of Significant Deterioration (PSD)

pro gram that the U.S. Environmental Protection Agency ( USEPA ) promulgated at 40 C

. F

. R

. §§ 51 .166 and 52 .21 in response to requirements of the federal Cl ean Air Act, 42 U.S.C. §

7401 et seq

. As amended by the October 25, 2012 [ 77 FR 65118

- 65119 ] final rule “Implementation of the New Source Review (NSR) Program for Particulate M atter Less Than 2.5 Micrometers (PM2.5): Amendment to the Definition of ‘‘Regulated NSR Pollutant’’ Concerning Condensable Particulate Matter” and as adopted by reference in K.A.R. 28

- 19

- 350 all regulated pollutants affected by this plan revision are as fo llows:

40 C.F.R. §52.21(b) (50) Regulated NSR pollutant, for purposes of this section, means the following: (i) Any pollutant for which a national ambient air quality standard has been promulgated. This includes, but is not limited to, the following: ( a ) P M2.5 emissions and PM10 emissions shall include gaseous emissions from a source or activity, which condense to form particulate matter at ambient temperatures. On or after January 1, 2011, such condensable particulate matter shall be accounted for in appli cability determinations and in establishing emissions limitations for PM2.5 and PM10 in PSD permits. Compliance with emissions limitations for PM2.5 and PM10 issued prior to this date shall not be based on condensable particulate matter unless required by the terms and conditions of the permit or the applicable implementation plan. Applicability determinations made prior to this date without accounting for condensable particulate matter shall not be considered in violation of this section unless the applicable implementation plan required condensable particulate matter to be included. ( b ) Any pollutant identified under this paragraph (b)(50)(i)( b ) as a constituent or precursor for a pollutant for which a national ambient air quality standard has been promulg ated. Precursors identified by the Administrator for purposes of NSR are the following: ( 1 ) Volatile organic compounds and nitrogen oxides are precursors to ozone in all attainment and

unclassifiable areas. ( 2 ) Sulfur dioxide is a precursor to PM2.5 in all attainment and unclassifiable areas. ( 3 ) Nitrogen oxides are presumed to be precursors to PM2.5 in all attainment and unclassifiable
areas, unless the State demonstrates to the Administrator’s satisfaction or EPA demonstrates that emissions of nitrogen ox ides from sources in a specific area are not a significant contributor to that

area’s ambient PM2.5 concentrations. ( 4 ) Volatile organic compounds are presumed not to be precursors to PM2.5 in any attainment or
unclassifiable area, unless the State demonst rates to the Administrator’s satisfaction or EPA demonstrates that emissions of volatile organic compounds from sources in a specific area are a significant contributor to that area’s ambient PM2.5 concentrations.SIP Revision Submittal, Incorporation of Amended K.A.R. 28

- 19

- 350 Page G

- 2 February 2013 2. Identification of the location of affe cted sources including the EPA attainment/nonattainment designation of the locations and the status of the attainment plan for the affected area s . [2.2(b)]

PSD applies to new major sources or major modifications at existing sources for pollutants

where the area the source is located is in attainment or unclassifiable with the National

Ambient Air Quality Standards (NAAQS) . As codified at 40 C.F.R. §81.317 , all areas in Kansas are designated to be “attainment” or “attainment/unclassifiable ” or “better than

national standards” or “cannot be classified” or “cannot be classified or better than national

standards” for all NAAQS with the following exceptions:

• Ozone (1

- Hour Standard)

– The 1

- hour ozone standard is revoked effective June 15, 2005 for all areas in Kansas. The Kansas City area is a maintenance area for the 1

- hour NAAQS for purposes of 40 C.F.R. part 51 subpart X

.

• 2008 L ead NAAQS

– Saline County, area bounded by Schilling Rd. on the north, 1 ⁄4 mile
west of S. Ohio St. on the east, Water Well Rd. on the south, and 9th Street on the west is designated “nonattainment.”

3. Quantification of the changes in plan allowable emissions from the affected sources; estimates of changes in current actua l emissions from affected sources or, where appropri ate, quantification of changes i n actual emissions from affected sources through calculations of the differences between certain baseline levels and allowable emissions anticipated as a result of the revi sion. [2.2(c)]

Not applicable. The proposed amendments to K.A.R. 28

- 19

- 350 align the Kansas Prevention of Significant Deterioration (PSD) regulation with the Federal PSD regulation codified at 40
C.F.R. §52.21. The amendments will not result in any cha nges to allowable or actual emissions from existing sources. Changes to the allowable or actual emissions of new and modified sources subject to the program will depend on the case

- by

- case application of PSD control requirements to each source and cannot b e quantified.

4. The State’s demonstration that the national ambient air quality standards, prevention of significant deterioration increments, reasonable further progress demonstration, and visibility, as applicable, are protected if the plan is approved and implemented. [2.2(d)]

The proposed amendments to K.A.R. 28

- 19

- 350 align the Kansas Prevention of Significant Deterioration (PSD) regulation with the Federal PSD regulation codified at 40 C.F.R. §52.21

. The air quality of Kansas will continue to be p rotected with this amended regulation and this plan as revised will continue to be protective of the NAAQS in Kansas.SIP Revision Submittal, Incorporation of Amended K.A.R. 28

- 19

- 350 Page G

- 3 February 2013 5. Modeling information required to support the proposed revision, including input data, output data, models used, justification of mode l selections, ambient monitoring data used, meteorological data used, justification for use of offsite data (where used), modes of models used, assumptions, and other information relevant to the determination of adequacy of the modeling analysis. [2.2(e)]

Not applicable.

6. Evidence, where necessary, that emission limitations are based on continuous emission reduction technology. [2.2(f)]

Not applicable.

7. Evidence that the plan contains emissions limitations, work practice standards and

recordk eeping/reporting requirements, where necessary, to ensure emission levels. [2.2(g)]

Not applicable.

8. Compliance/enforcement strategies, including how compliance will be determined in practice. [2.2(h)]

There are no change s to the compliance and en forcement strategies . The e xisting mechanisms remain in place.

9. Special economic and technological justifications required by any applicable EPA policies, or an explanation of why such justifications are not necessary . [2.2(i)]

Not applicable. The Plan as revised will continue to be protective of the NAAQS in the

State.Kansas Department of Health and Environment

Division of Environment

Bureau of Air

REGULATORY IMPACT STATEMENT CONSISTING OF:

I. ENVIRONMENTAL BENEFIT STATEMENT

AND

II. ECONOMIC IMPACT STATEMENT

Pursuant to K.S.A. 77

- 416

PERMANENT AMENDMENT OF EXISTIN G AIR QUALITY REGULATION S :

K.A.R. 28

- 19

- 350

February 8 , 2012[ This Page Intentionally Left Blank ]K.A.R. 28

- 19

- 3 50 1 February 2012 Executive Summary

The Kansas Air Quality Act, K.S.A. 65

- 3001 et seq. , authorizes the secretary of the

Kansa s Department of Health and Environment (KDHE) to develop rules and regulations to

conserve air quality and to control air pollution in the state of Kansas. In large part, the Kansas

air quality regulatory program implements the requirements of the federal Clean Air Act, 42

U.S.C. § 7401 et seq ., as a state program pursuant to the Kansas State Implementation Plan (SIP)

approved by the United States Environmental Protection Agency (USEPA). Upon adoption of

the proposed amendment s
, KDHE will submit a revised SIP to the US EPA for approval.

KDHE has identified several changes that are needed to maintain consistency with

federal rulemaking actions. These proposed amendments update the Kansas air quality

regulations, Kansas Administrative Regulation (K.A.R.) 28

- 19

- 8 et seq

., to in corporate federal

rule changes t o update the Prevention of Significant Deterioration (PSD) regulation , as

appropriate.

KDHE is proposing to amend K.A.R. 28

- 19

- 350 “ Prevention of significant deterioration

(PSD) of air quality ” s pecifi cally to implement the revised National Ambient Air Quality

Standard (NAAQS) for Fine Particulate Matter (PM 2.5 ), to incorporate the d eferral for CO 2

e missions f rom b ioenergy and o ther b iogenic s ources u nder the PSD Program and to remove

language which exc ludes stayed, remanded or vacated provisions

. This Regulatory Impa ct Statement, consisting of an Environmental Benefit Statement and

Economic Impact Statement, is submitted in support of the proposed amendments.

Background

K.A.R. 28

- 19

- 350 implement s the New Source Review program that the USEPA

promulgated at 40 CFR Par ts 51 and 52 in response to requirements of the federal Clean Air Act,

42 U.S.C. §7401 et seq . The New Source Review provisions of the Clean Air Act

, 42 U.S.C. §

7410

, combine air quality planning and air pollution technology requirements for major

stat ionary sources and require the states to implement regulatory plans that prohibit the emission

of air pollutants “from any source or other type of emissions activity within the [s]tate” in

amounts that will either contribute significantly to nonattainment or interfere with theK.A.R. 28

- 19

- 3 50 2 February 2012 maintenance of national primary or secondary ambient air quality standards (NAAQS)

. New Source Review (NSR) is a preconstruction permitting program that requires a major

stationary source to obtain a permit before it can begin const ruction or make a major

modification if the construction or modification will increase emissions by an amount large

enough to trigger NSR requirements. Under Part C of Title I of the Clean Air Act, states have

the primary responsibility for developing a s tate implementation plan (SIP) and issuing permits

subject to the emission limits and other control measures developed in the plan, which is

approved by the USEPA. Kansas implements the NSR program for major stationary sources in

attainment areas under th e requirements of 40 C.F.R. § 52.21 as adopted b y reference in K.A.R.

28

- 19

- 350

. NSR in attainment areas is commonly called Prevention of Significant Deterioration

(PSD).

K.A.R. 28

- 19

- 350 is being updated to incorporate changes up to July 1, 2010 and to also

include the October 20, 2010 Prevention of Significant Deterioration (PSD) for Particulate

Matter Less Than 2.5 Micrometers (PM 2.5 )

— Increments, Significant Impact Levels (SILs) and

Significant Monitoring Concentration (SMC); Final Rule , and the July 20, 2011 Deferral for

CO 2 Emissions Fr om Bioen ergy and Other Biogenic Sources Unde r the Prevention of Significant

Deterioration (PSD) and Title V Programs; Final Rule amendments.

In addition to the update for the adoptions by reference, KDHE is proposing to strike the

language of K.A.R. 28

- 19

- 350(b)(3 ) in whole. The language excludes specific provisions which

were or are subject to a federal court order of stay, remand or vacatur. The language is no longer

justifiable as the USEPA has since amended the federal rule to reflect the current status of these

specified sections.

The following table lists the relevant 40 C.F.R Part 51 and 5 2 provisions that have been

amended o r promulgated since July 1, 2007 up to July 20 , 2011

. A short summary of each of

thes e amendments is located in A ttachment A

.

Part/Subpart Federal Register

Citation/Date Description

51.165

- 51.166 Subpart I;

Part 51 Appendix S;

52.21 Subpart A 72 FR 726 16 December 21, 2007 PSD and Nonattainment NSR: Reasonable Possibility in Recordkeeping

51.165

- 51.166 Subpart I;

Part 51 Appendix S;

52.21 Subpart A 73 FR 283 47 May 16, 2008 Implementation of the NSR Program for PM 2.5K.A.R. 28

- 19

- 3 50 3 February 2012 51.165

- 51.166 Subpart I;

Part 51 Appendix S;

52.21 Subpart A 73 FR 778 95 December 19, 2008 PSD and Nonattainment NSR: Reasonable Possibility in Recordkeeping

52.21 Subpart A 74 FR 2609 9 June 1, 2009 Implementation of the NSR Program for PM 2.5 ; Final rule and Notice of Grant of

R econsideration and Administrative Stay

52.21 Subpart A 74 FR 4815 6 September 22, 2009 Implementation of the NSR Program for PM 2.5 : Final Rule to Stay the Grandfathering Provision

51.165

- 51.166 Subpart I;

Part 51 Appendix S;

52.21 Subpart A 74 FR 5011 6 September 30, 2009 PSD and Nonattainment NSR: Reconsideration of Inclusion of Fugitive Emissions and Administrative Stay

51.165

- 51.166 Subp art I;

Part 51 Appendix S;

52.21 Subpart A 74 FR 65694 December 11, 2009 PSD and Nonattainment NSR: Inclusion of Fugitive Emissions; Interim Final Rule; Stay

51.165

- 51.166 Subpart I; Part 51 Appendix S

52.21 Subpart A 75 FR 16015 March 31, 2010 PSD and Nonattainment NSR: Inclusion of Fugitive Emissions; Final Rule; Stay

51.166 Subpart I; Part 51 Appendix S;

52.21

- 52.22 Subpart A

70.2 and 70.12

71.2 and 71.13 75 FR 31606 June 3, 2010 * PSD and Title V Greenhouse Gas Tailoring Rule; Final Rule

51.165

- 51.166 Subpart I;

Part 51 Appendix S;

52.21 Subpart A 75 FR 64902 October 20, 2010 PSD for PM 2.5 – Increments, Significant Impact

Le vels and Significant Monitoring Concentrations; Final Rule

51.165

- 51.166 Subpart I;

Part 51 Appendix S;

52.21 Subpart A 76 FR 1 7553

March 30 , 2011 PSD and Nonattainment NSR: Inclusion of Fugitive Emissions; Interim Final Ru le; Stay

51.166 Subpart I; 52.21 Subpart A ; 70.2 Definitions 76 FR 34507 July 20, 2011 Deferral for CO 2 Emissions From Bioenergy and Other Biogenic Sources Under the

PSD and Title V Programs

* Adopted in last update to K.A. R. 28

- 19

- 350 ( effective Nov . 29, 2010) and EPA approved codified at 40 C.F.R. §52.870(c) [76 FR 9664].

I. Environmental Benefit Statement

1) Need for proposed amendments and environmental benefit likely to accrue.

a) Need

The USEPA has finalized amendments to the PSD regulations over the past few years to

address the revised National Ambient Air Quality Standard (NAAQS) for Fine Particulate Matter

(PM 2.5 ). The PM 2.5 NAAQS establishes a limit on the acceptable exposure and public health

impacts of fine part iculate matter. The proposed amendment s to K.A.R. 28

- 19

- 350 are needed to

update the adoption of the federal regulations

, codified at 40 C.F.R. §52.21, to align the state

PSD program with the federal PSD program. The PSD program is a component of the NSR thatK.A.R. 28

- 19

- 3 50 4 February 2012 includes procedures to ensure that these air quality standards are maintained. The PSD

requirements include but are not limited to:

• Installation of Best Available Control Technology (BACT);

• Air quality monitoring and mod eling analyses to ensure that a project’ s emissions will

not cause or contrib ute to a violation of any NAAQS or maximum allowable pollutant

increase (PSD increment);

• Notification of Federal Land Manag er of nearby Class I areas; and

• Public comment on the permit.

b) Environmental bene fit

As enabled under the Clean Air Act, the USEPA established 40 C.F.R. § 52.21 as an

essential component of the ongoing process that protects the quality of the air nationally. The

Kansas Department of Health and Environment (KDHE) is charged with maint aining overall

environmental air quality in Kansas. Major stationary sources in Kansas emit the vast majority

of criteria pollutants into the air. There is a direct correlation between regulation of these

emitters and improvements in Kansas’s air quality . K.A.R. 28

- 19

- 350 enables the KDHE to

continue ongoing air protection activities with respect to preconstruction permitting of major

stationary sources

.

2) When applicable, a summary of the research indicating the level of risk to the public

health or the environment being removed or controlled by the proposed rules and

regulations or amendment.

The health effects associated with exposure to PM 2.5 are significant. Epidemiological

studies have shown a significant correlation between elevated PM 2.5 levels an d premature

mortality. Other important effects associated with PM 2.5 exposure include aggravation of

respiratory and cardiovascular disease (as indicated by increased hospital admissions, emergency

room visits, absences from school or work, and restricted activity days), lung disease, decreased

lung function, asthma attacks, and certain cardiovascular problems. Individuals particularly

sensitive to PM 2.5 exposure include older adults, people with heart and lung disease, and children.

On July 18, 1997, the U SEPA revised the NAAQS for particulate matter ( PM ) to add

new standards for fine particles, using PM 2.5 as the indicator. The USEPA established health

-K.A.R. 28

- 19

- 3 50 5 February 2012 based (primary) annual and 24

- hour standards for PM 2.5 (62 FR 38652). The USEPA set an

annual standard at a level of 15 micrograms per cubic meter (μg/m 3 ) and a 24

- hour standard at a

level of 65 μg/m 3 . The USEPA also established welfare

- based (secondary) standards identical to

the primary standards. The secondary standards are designed to protect against majo r

environmental effects of PM 2.5 such as visibility impairment, soiling, and materials damage.

On October 17, 2006, the USEPA revised the primary and secondary NAAQS for PM 2.5

and PM 10 . In that rulemaking, the USEPA reduced the 24

- hour NAAQS for PM 2.5 to 35 μg/m 3

and retained the existing annual PM 2.5 NAAQS of 15 μg/m 3 . In addition they retained PM 10 as

the indicator for coarse PM, retained the existing PM 10 24

- hour NAAQS of 150 μg/m 3 , and

revoked the annual PM 10 NAAQS (which had previously been set at 50 μg/m 3 ). See 71 FR

61236.

The PM 2.5 NAAQS establishes a limit on the acceptable exposure and public health

impacts for fine particulate matter. The se amendment s of K.A.R. 28

- 19

- 350 parallel changes to

40 C.F.R. § 52.21 to implement the PM 2.5 NAAQS for PSD

.

3) If specific contaminants are to be controlled by the proposed regulations or

amendment, a description indicating the level at which the contaminants are

considered harmful according to current available research.

As discussed above this regulatory actio n is primarily being proposed to implement the

PM 2.5 National Ambient Air Quality Standards (NAAQS) for Prevention of Significant

Deterioration (PSD) , however the Kansas PSD program applies to new major sources or major

modifications at existing sources fo r all pollutants where the area the source is located is in

attainment or unclassifiable with the NAAQS. EPA has promulgate d NAAQS for each air

pollutant for which air quality criteria have been published. To date, NAAQS have been

promulgated for six crit eria pollutants: ozone, particulate matter, sulfur oxides, nitrogen oxides,

carbon monoxide, and lead (see Attachment B ).

II. Economic Benefit Statement

1) Are the proposed regulations or amendments mandated by federal law as a

requir ement for participating in or implementing a federally subsidized or assistedK.A.R. 28

- 19

- 3 50 6 February 2012 program?

Yes. KDHE’s authority to fully implement the Clear Air Act programs, which are in part

funded through grants from the US EPA, is maintained by assuring that all state p rogram

elements are current and consistent with the terms of the federal requirements that KDHE

implements.

2) Do the proposed amendments exceed the requirements of applicable Federal law?

No, t hese changes update the state regulations specifically to match the federal

requirements

.

3) Description of costs to agencies, to the general public and to persons who are

affected by, or are subject to, the regulations:

a) Capital and annual costs of compliance with the proposed amendments and the

persons who will bear th ose costs.

None. The proposed regulation does not subject the affected parties, KDHE, or other

regulatory agencies to additional capital and annual costs of compliance. The US EPA has

determined that the expansion of the NSR program to cover PM 2.5 and it s precursors is expected

to increase only marginally the costs to owners and operators of PM 2.5 sources that become

subject to the program [ 73 FR 28345, May 1 6 , 2008 ].

In Kansas, there are only a few sources per year which are permitted under KDHE’s PSD

p ermitting authority. In 2011, there was only one PSD permit issued for which a PM 2.5 BACT

analysis was reviewed. The estimated cost to the facility for this incremental cost of the

additional pollutant analysis was approximately $4,000.

b) Initial and annu al costs of implementing and enforcing the proposed amendments,

including the estimated amount of paperwork, and the state agencies, other

governmental agencies or other persons or entities who will bear the costs.

The USEPA determined that these amendmen ts are unlikely to increase significantly the

number of NSR permits that must be issued, but may add to the analyses that sources and

Federal, State, and local reviewing authorities must conduct as part of the construction permit

application and review pro cess. They expect the rule changes to increase the burden associatedK.A.R. 28

- 19

- 3 50 7 February 2012 with major NSR permitting for tracking new emissions of PM 2.5 against increments; collecting

ambient air quality monitoring data for existing PM 2.5 concentrations; reviewing the effects of

PM 2.5 emissions on soils and vegetation, as well as on air quality related values in Class I areas;

determining the appropriate best available control technology or lowest achievable emission rate;

and/or obtaining offsets

.

In Kansas

, the impact of ex panding the PSD program to include PM 2.5 has necessitated

the reallocation of current KDHE staff responsibilities to absorb the increased time associated

with the permitting reviewing process and f or tracking new emissions of PM 2.5 against

increments . It is estimated that this cost equal s approximately that of 0.5 FTE having a monetary

value for salary and benefits of $50,000

- $60,000.

The USEPA further estimated an average annual burden increase of about 39,000 hours

and $4.3 million for all industry en tities that would be affected by this final NSR rule. For the

same reasons, they also expect the final rule to increase burden for the State and local authorities

reviewing permit applications when fully implemented. In addition, there would be additional

burden for State and local agencies to revise their SIPs to incorporate the proposed changes.

They estimate the combined increase in burden to average about 16,000 hours and $700,000

annually for all State a nd local reviewing authorities [ 73 FR 28344 May 15, 2008]

. To apply

these estimates to Kansas, t he following correlation cost estimates were determined by applying

a less than 1% population density based on the U.S. Census Data for 2010 Kansas population

equaling 2,523,118 and a national total of 308,7 45,538:

• 360 hours and $39,700 annually for all industry entities affected in Kansas; and

• 148 hours and $6,469 annually for all State reviewing authorities.

c) Costs which would likely accrue if the proposed regulations are not adopted, the

persons who will bear the costs and those who will be affected by the failure to adopt

the regulations.

If the proposed changes are not adopted, and the amendments to 40 C.F.R. § 52.21 are not

reflective of current federal requirements and approved in the State Implementat ion Plan (SIP),

the EPA is compelled by the CAA to promulgate a Federal Implementation Plan (FIP) to assure

the adequacy of the states ability to maintain the NAAQS.

The implications of the state of Kansas falling out of compliance with Clean Air ActK.A.R. 28

- 19

- 3 50 8 February 2012 le gislation is not fully understood, as it has yet to occur. One known consequence to non

compliance would result in the loss of affiliated federal transportation funding dollars which are

vital to Kansas.

d) A detailed statement of the data and methodology used in estimating the costs used

in the statement.

KDHE relied on the USEPA’s estimated burden statements for the final federal rules

promulgating and implementing the National Ambient Air Quality Standard (NAAQS) for Fine

Particulate Matter (PM 2.5 )

.

e) De scription of any less costly or less intrusive methods that were considered by the

agency and why such methods were rejected in favor of the proposed regulations.

There are no less intrusive or less costly methods available for consideration by KDHE to

ac hieve the purposes of the proposed regulation changes.

f) Consultation with League of Kansas Municipalities, Kansas Association of Counties,

and Kansas Association of School Boards.

KDHE does not anticipate that the proposed amendments and adoptions will ha ve any

negative fiscal impact on the constituencies of these three organizations; however, copies of the

Regulatory Impact Statement have been provided to these organizations for their review as

required.

# ATTACHMENT AAttachment A Summary of C.F.R. Amendments

Page 1 K.A.R. 28

- 19

- 350 Amendments
 § 51.165

- 51.166 Subpart I; Part 51 Appendix S; § 52.21 Subpart A December 21, 2007 Volume 72 : 72607

– 72617 This rule finalizes proposed revisions to the regulations go verning the major new source review (NSR) programs mandated by parts C and D of title I of the Clean Air Act (CAA). The action clarifies the “reasonable possibility” recordkeeping and reporting standard of the 2002 NSR reform rules. The “reasonable possi bility” standard identifies for sources and reviewing authorities the criteria under which an owner or operator of a major stationary source undergoing a physical change or change in the method of operation that does not trigger major NSR permitting requir ements must keep records. The standard also specifies the recordkeeping and reporting requirements on such sources. As noted in the proposal, the U.S. Court of Appeals for

the DC Circuit in New York v. EPA remanded for the EPA either to provide an accepta ble explanation for its “reasonable possibility” standard or to devise an appropriately supported alternative. To satisfy the Court’s remand, the EPA is clarifying what constitutes “reasonable possibility” and when the “reasonable possibility” recordkeepi ng requirements apply.

 § 51.165

- 51.166 Subpart I; Part 51 Appendix S; § 52.21 Subpart A May 16, 2008 Volume 7 3 : 28321

– 28350 The EPA is finalizing regulations to implement the New Source Review (NSR) program for fine particulate matter (that is, particles with an aerodynamic diameter less than or equal to a nominal 2.5 micrometers, generally referred to as ‘‘PM 2.5 ’’). The NSR program was created by

the Clean Air Ac t (Act or CAA) to ensure that stationary sources of air pollution are constructed or modified in a manner that is consistent with air quality goals in the area. The Clean Air Fine Particle Implementation Rule, which was proposed in the Federal Register on November 1, 2005, included requirements and guidance for State and local air pollution agencies to follow in developing State implementation plans (SIPs) and also the NSR provisions. The final implementation rule that was promulgated on April 25, 2007, inc luded all the SIPs related provisions. In this rulemaking, EPA is finalizing the NSR provisions of the November 1, 2005 proposed rule including the major source threshold, significant emissions rate,

and offset ratios for PM 2.5 , interpollutant trading for offsets and applicability of NSR to PM 2.5
precursors.

 § 51.165

- 51.166 Subpart I; Part 51 Appendix S; § 52.21 Subpart A December 19, 2008 Volume 7 3 : 77882

– 77902

Th e EPA is finalizing revisions to the December 31, 2002 New Source Review (NSR) Improvement rules to change the requirements of the major NSR programs regarding the treatment of fugitive emissions. Specifically, this final rule requires that fugitive emissi ons be

included in determining whether a physical or operational change results in a major modification only for sources in the source categories that have been designated through rulemaking pursuant to section 302(j) of the Clean Air Act (Act). Also, this action elaborates on guiding principles for determining fugitive emissions for purposes of NSR and title V permitting.

 § 51.165

- 51.166 Subpart I; Part 51 Appendix S; § 52.21 Subpart A June 1, 2009 Volume 7 4 : 26098

– 26099

The Environmental Protection Agency (EPA or Agency) is providing notice that through a letter signed on April 24, 2009, EPA has granted a petition for reconsideration dated February 10, 2009, subm itted by Earthjustice on behalf of the National Resources Defense Council (NRDC)

and the Sierra Club, with respect to the final rule titled, ‘‘ Implementation of the New Source Review (NSR) Program for Particulate Matter Less Than 2.5 Micrometers (PM 2.5 ) ,’’ published on May 16, 2008. In addition, EPA has administratively stayed one of the provisions to which the petitioners objected

— a ‘‘grandfathering’’ provision for PM 2.5 contained in the federal preventionAttachment A Summary of C.F.R. Amendments

Page 2 of significant deterioration (PSD) program. The EP A will publish notification in the Federal Register establishing a comment period and opportunity for a public hearing for the reconsideration proceeding. The petition for reconsideration and request for administrative stay can be found in the docket

for t he May 16, 2008 rule. The EPA considered the petition for reconsideration and request for stay, along with information contained in the rulemaking docket, in reaching a decision on both

the reconsideration and the stay.

 § 52.2 1 Subpart A September 22, 2009 Volume 7 4 : 48153

– 48156 In this final action, EPA is issuing a stay, for nine months, on the ‘‘grandfathering’’ provision

for particulate matter less than 2.5 micrometers (PM 2.5 ) requirements i n the Federal Prevention of Significant Deterioration (PSD) program. The grandfathering provision was added to the Federal PSD regulations on May 16, 2008, as part of the final rule titled, ‘‘ Implementation of the New Source Review (NSR) Program for Partic ulate Matter Less Than 2.5 Micrometers (PM 2.5 ). ’’ This stay follows an administrative stay, which was in effect from June 1, 2009, until September 1, 2009, on the same provision. We believe this additional stay will provide sufficient time for EPA

to propo se, take public comment on, and issue a final action concerning the repeal of the grandfathering provision for PM 2.5 in the Federal PSD program.

 § 51.165

- 51.166 Subpart I; Part 51 Appendix S; § 5 2.21 Subpart A September 30, 2009 Volume 7 4 : 50115

– 50118

The Environmental Protection Agency (EPA or Agency) is providing notice that through a letter signed by the Administrator on April 24, 2009, EPA granted a petition f or reconsideration

of the final rule titled, ‘‘ Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NSR): Reconsideration of Inclusion of Fugitive Emissions ,’’ published on December 19, 2008 (Fugitive Emissions Rule). EPA’s de cision to reconsider was in response to a request made by Natural Resources Defense Council (NRDC) in a letter dated February 17, 2009.

 § 51.165

- 51.166 Subpart I; Part 51 Appendix S; § 52.21 Subp art A December 11, 2009 Volume 7 4 : 65692

– 65696 EPA is making an interim final determination to provide an additional stay of the regulations concerning the inclusion of fugitive emissions.

 § 5 1.165

- 51.166 Subpart I; Part 51 Appendix S; § 52.21 Subpart A March 31, 2010 Volume 7 5 : 16012

– 16017 In this final action, EPA is issuing a stay for 18 months of the inclusion of fugitive emiss ions requirements in the federal Prevention of Significant Deterioration (PSD) program published in

the Federal Register on December 19, 2008, in the final rule entitled, ‘‘ Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review ( NSR): Reconsideration of Fugitive

Emissions ’’ (Fugitive Emissions Rule ) The Fugitive Emissions Rule under the federal PSD program requires that fugitive emissions be included in determining whether a physical or operational change results in a major modif ication only for sources in industries that have been designated through rulemaking under section 302(j) of the Clean Air Act (Act or CAA). The existing stay is in effect for 3 months; that is, from December 31, 2009 until March 31, 2010.

 § 51.166 Subpart I; Part 51 Appendix S; § 52.21

- 52.22 Subpart A ; § 70.2 and § 70.12 Subpart A; § 71.2 and § 71.13 Subpart A June 3, 2010 Volume 7 5 : 31514

– 31608

This rule “ tailor ” the applicability criteria that determine s which stationary sources and modification projects become subject to permitting requirements fo r greenhouse gas (GHG)Attachment A Summary of C.F.R. Amendments

Page 3 emissions under the Prevention of Significant Deterioration (PSD) and title V programs of the

Clean Air Act (CAA or Act). This rule was a dopted in the last update to K.A.R. 28

- 19

- 350 (effective Nov. 29, 2010) and approved by the US E PA codified at 40 C.F.R. §52.870(c) [76 FR 9664].

 § 51.165

- 51.166 Subpart I; Part 51 Appendix S; § 52.21 Subpart A October 20, 2010 Volume 7 5 : 64864

– 64907

The EPA is amending the requirements for particulate matter less than 2.5 micrometers (PM 2.5 ) under the Prevention of Significant Deterioration (PSD) program by adding maximum allowable increases in ambient pollutant concentrations (‘‘increments’’) and two screen ing tools,

known as the Significant Impact Levels (SILs) and a Significant Monitoring Concentration (SMC) for PM 2.5 . The SILs for PM 2.5 are also being added to two other New Source Review (NSR) rules that regulate the construction and modification of any m ajor stationary source locating in an attainment or unclassifiable area, where the source’s emissions may cause or contribute to a violation of the national ambient air quality standards (NAAQS).

 § 51.165

- 51.166 Subpart I; P art 51 Appendix S; § 52.21 Subpart A

March 30 , 2011 Volume 76: 17548

– 17556 EPA is taking an interim action to effectuate and extend a stay of the final rule entitled

‘‘ Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NSR): Reconsideration of Inclusion of Fugitive Emissions ’’ (Fugitive Emissions Rule) published in the Federal Register on December 19, 2008. The Fugitive Emissions Rule under the Federal NSR

program required that fugitive emissions be included in determining whether a physical or operational change results in a major modification only for sources in designated industries. EPA issued a stay of the Fugitive Emissions Rule on March 31, 2010, that was eff ective for 18 months through October 3, 2011. This action supersedes the stay and thereby corrects potential confusion caused by that stay. To effectuate a stay of the Fugitive Emissions Rule, this action clarifies the stay and the revisions of specific pa ragraphs in the NSR regulations that were affected by the Fugitive Emissions Rule. This action also extends the stay until EPA completes its

reconsideration of the Fugitive Emissions Rule.

 § 51.166 Subpart I; § 52.21 Subpart A; § 70.2 Definitions July 20, 2011 Volume 76: 43490

– 43507

This action defers for a period of three (3) years the application of the Prevention of Significant De terioration (PSD) and Title V permitting requirements to biogenic carbon dioxide (CO 2 ) emissions from bioenergy and other biogenic stationary sources. This action is being taken as part of the process of granting the Petition for Reconsideration filed by t he National Alliance of Forest Owners (NAFO) on August 3, 2010, related to the PSD and Title V Greenhouse Gas Tailoring Rule. The result of this action is that during this three year period biogenic CO 2 emissions are not required to be counted for applicab ility purposes under the PSD and Title V permitting programs.

# ATTACHMENT BNational Ambient Air Quality Standards

Pollutant [final rule cite] Primary/ Secondary Averaging

Time Level Form

Carbon Monoxide
[ 76 FR 54294, Aug 31, 2011 ] primary 8

- hour 9 ppm Not to be exceeded more than

once per year 1

- hour 35 ppm

Lead
[ 73 FR 66964, Nov 12, 2008 ] primary and secondary Rolling 3

month

average 0.15 μg/m 3 (1) Not to be exceeded

Nitrogen Dioxide
[ 75 FR 6474, Feb 9, 2010 ]
[ 61 FR 52852, Oct 8, 1996 ] primary 1

- hour 100 ppb 98th percentile, averaged over 3

years

primary and secondary Annual 53 ppb (2) Annual Mean

Ozone
[ 73 FR 16436, Mar 27, 2008 ] primary and secondary 8

- hour 0.075 ppm (3) Annual fourth

- highest daily

maximum 8

- hr concentration, averaged over 3 years

Particle Pollution
[ 71 FR 61144, Oct 17, 2006 ] PM 2.5 primary and secondary Annual 15 μg/m 3 annual mean, averaged over 3

years

24

- hour 35 μg/m 3 98th percentile, averaged over 3

years

PM 10 primary and secondary 24

- hour 150 μg/m 3 Not to be exceeded more than once per year on average over 3

years

Sulfur Dioxide
[ 75 FR 35520, Jun 22, 2010 ] [38 FR 25678, Sept 14, 1973] primary 1

- hour 75 ppb (4) 99th percentile of 1

- hour daily

m aximum concentrations, averaged over 3 years

secondary 3

- hour 0.5 ppm Not to be exceeded more than

once per year

as of October 2011

(1) Final rule signed October 15, 2008. The 1978 lead standard (1.5 μg/m 3 as a quarterly average) remains in effect u ntil one

year after an area is designated for the 2008 standard, except that in areas designated nonattainment for the 1978, the 1978

standard remains in effect until implementation plans to attain or maintain the 2008 standard are approved.

(2) The offici al level of the annual NO 2 standard is 0.053 ppm, equal to 53 ppb, which is shown here for the purpose of clearer

comparison to the 1

- hour standard.

(3) Final rule signed March 12, 2008. The 1997 ozone standard (0.08 ppm, annual fourth

- highest daily maxim um 8

- hour

concentration, averaged over 3 years) and related implementation rules remain in place. In 1997, EPA revoked the 1

- hour ozone

standard (0.12 ppm, not to be exceeded more than once per year) in all areas, although some areas have continued obliga tions

under that standard (“anti

- backsliding”). The 1

- hour ozone standard is attained when the expected number of days per calendar

year with maximum hourly average concentrations above 0.12 ppm is less than or equal to 1.

(4) Final rule signed June 2, 20 10. The 1971 annual and 24

- hour SO 2 standards were revoked in that same rulemaking.

However, these standards remain in effect until one year after an area is designated for the 2010 standard, except in areas

designated nonattainment for the 1971 standard s, where the 1971 standards remain in effect until implementation plans to attain

or maintain the 2010 standard are approved.