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 State of Kansas

Air Quality

State Implementation Plan

Plan 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 Environment

Bureau of Air

(785) 296-6024

February 26, 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 30)

D Plan Revision

• K.A.R. 28-19-350 (as published in the Kansas Register on December 13, 

2012)

• 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, 2012)

• 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

Kansas Air Quality Statutes (K.S.A. 

Chapter 65, Article 30)

C

2.1(d)

Copy of actual 

regulation 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 State has 

followed all procedural 

requirements

Report of the Hearing Officer E

2.1(f) Evidence that public 

notice was provided

Kansas Register – August 30, 2012

Newspaper Affidavits of Publication

F

2.1(g)

Certification that public 

hearing was held as per 

information in public 

notice

Report of the Hearing Officer E

2.1(h)

Compilation of public 

comments 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 

relevant 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 explanation of why 

justification not needed

Refer to response. G
Section B

Section C
State 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 particulate matter, vapor, 

gas, odorous substances, or any combination thereof, but not including water vapor or 

steam condensate. 

(b) "Air contamination" means the presence 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 quantities and duration as is, or tends significantly to be, 

injurious to human health or welfare, animal or plant life, or property, or would 

unreasonably interfere with the enjoyment of life or property, or would contribute to the 

formation of regional haze. 

(d) "Alter" means any physical change in, or change in the method of operation 

of, an air contaminant emission 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 haze 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, structure, machine, equipment, device or 

installation (or group of buildings, structures, machines, equipment, devices or 

installations), whether temporary or permanent, located on one or more contiguous or 

adjacent properties and under common control of the same person (or persons under 

common control). Such term shall not include locomotives, 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 existing 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 caused by the cumulative emissions of gaseous 

and particulate air contaminants from numerous sources. 

KDHE, Bureau of Air 1 Last Revised: March 15, 2011 
(l) "Reopen" means to seek an amendment to an existing approval or permit 

initiated by any person other than the permittee. 

(m) "Secretary" means the secretary of health and environment. 

(n) "Stationary source" means any building, 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 secretary shall administer 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 connection therewith, compel the attendance of 

witnesses and the production of evidence. 

(3) Issue such orders, permits 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 records relating to emissions which cause or contribute to 

air pollution. 

(5) Prepare and develop a comprehensive plan or plans for the prevention, 

abatement and control of air pollution originating in Kansas that affects air quality in 

Kansas or in other states or both. 

(6) Adopt rules and regulations governing such public notification and comment 

procedures as authorized by this act. 

(7) Encourage voluntary cooperation by persons or affected groups to achieve the 

purposes of this act. 

(8)(A) Encourage local units 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) enter into agreements with local units of 

government to administer all or part of the provisions of the Kansas air quality act in the 

units' respective jurisdictions. 

(9) Encourage and conduct studies, investigations and research relating to air 

contamination and air pollution and their causes, effects, prevention, abatement and 

control. 

(10) Encourage air contaminant emission sources to voluntarily implement 

strategies, including the development and use of innovative technologies, market-based 

principles and other private initiatives to reduce or prevent pollution. 

(11) Determine by means of field studies and sampling the degree of air 

contamination and air pollution in the state 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 information and conduct educational and training 

programs relating to air contamination and air pollution. 

(14) Advise, consult and cooperate with other agencies of the state, local 

governments, industries, other states, interstate 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 the federal government, for the purpose of carrying out any of 

the functions of this act. Such funds received by the secretary pursuant to this section 

shall be deposited in the state treasury to the account of the department of health and 

environment. 

(16) Enter into contracts and agreements with other state agencies or 

subdivisions, local governments, other states, interstate agencies, the federal government 

or its agencies or private entities as is necessary to accomplish the purposes of the Kansas 

air quality act. 

(17) Conduct or participate in intrastate or interstate emissions trading programs 

or other programs that demonstrate equivalent air quality benefits 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 required by 42 U.S.C. 7491. 

(19) Participate in the activities 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 visibility 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 rules 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 more 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 the 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 United States environmental protection agency 

approved state implementation plan. 

(2) For any application for a permit required by federal or state law, the secretary 

shall not deny or delay the issuance of such permit when the requirements 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 rules, 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 provisions 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; classification; monitoring; reporting. (a) 

The secretary, by rule and regulation, shall classify air contaminant sources which, in the 

secretary's judgment, may cause or contribute to air pollution, according 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 whole 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 contaminant emission sources to monitor 

emissions, operating parameters, ambient impact of any source emissions or any other 

parameters deemed necessary by the secretary. The secretary may require air contaminant 

emission sources to keep records and make reports 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 the secretary require reporting 

shall make reports containing information as may be required by the secretary concerning 

location, size and height of contaminant outlets, processes employed, fuels used and the 

nature and time periods or duration of emissions, 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 rules and regulations, the secretary finds may 

cause or contribute to air pollution, unless an appropriate approval 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 consistent with the purposes of this act and rules 

and regulations promulgated under this act. 

(b) The secretary shall require that applications for approvals and permits, and 

renewals thereof, under this act shall be accompanied by application 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 shall 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 privilege 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, 2011 
application form and any required fee are filed with the secretary on or before the 

expiration date of the approval or the permit. For purposes of this subsection, the 

secretary may specify by rule and regulation an amount of time prior to the expiration 

date of an operating permit by which a complete 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 general approval or permit shall comply with all 

requirements applicable to approvals or permits 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 collect fees for approvals and permits, and 

the renewal thereof, to cover all or any part of the cost of administering 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 state 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 section is performed by a county, city-county or 

multicounty health department, that portion of such fee which pertains to such services, 

as determined by the secretary, shall be credited to the local air quality control authority 

regulation services fund, which is hereby created in the state treasury, 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 without 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 issuance 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 affirm, modify or reverse the decision on such permit after 

the public comment period or public hearing, and 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 amendments thereto, shall have standing to 

obtain judicial review of the secretary's final 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 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 final 

permit decision, including the permit application 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 the 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 approval or a permit if the permittee has violated 

any provision of the approval or the permit, any 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 stationary source owned or operated by such person, or by any 

entity controlling, controlled by or under common control with such person, in this state 

is in compliance, or meeting a schedule for 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 requirements 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 requirement adopted by the secretary shall be 

effective as soon as practicable, but not later than 18 months after the promulgation of the 

requirement by the United States environmental 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 specify the provision of this act or rule and regulation allegedly 

violated, the facts constituting the alleged violation and the secretary'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 administrative procedure act. 

(f) The filing of a request by the permittee for an approval or permit 

modification, revocation or amendment, or the filing by the permittee of a notification of 

planned changes or anticipated noncompliance, does not stay any approval or permit 

condition. 

(g) No permit shall be issued, modified, amended, revised or renewed unless the 

United States environmental protection agency has certified that such permit complies 

with the requirements of the federal clean air act, except that a permit may be issued if 

the United States environmental protection agency 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 deny 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, 2011 
clean 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 provided by title IV (acid rain) of the 1990 

amendments to the federal clean air act, for air contaminant emission sources subject to 

that title; or 

(3) within 18 months after receiving a complete application, in all other cases. 

(i) Failure of the secretary to issue or deny the permit, or grant or deny a request 

to modify or reopen the permit, within the period 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 other 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, premise 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 access to any authorized representative of the 

secretary who requests entry for purposes of inspection, and who presents appropriate 

credentials; nor shall any person obstruct, hamper or interfere 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 requirements for open burning (including appropriate 

prohibition thereof). Such requirements may be either for such areas as a whole or may 

vary from area to area, as may be appropriate to facilitate accomplishment of the 

purposes of this act and in order to take necessary 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 compliance 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 quality conservation program only after approval by the secretary, 

following demonstration to the satisfaction of the secretary that the proposed 

requirements are not less stringent than the standards and requirements 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 hearing, withdraw any approval previously 

given to a local requirement pursuant to this subsection. 

(d) The secretary shall establish reasonable 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 consistent with such standards in addition to meeting any 

other requirements pursuant 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, 2011 
65-3011. Enforcement; procedure. (a) If the secretary or the director of the 

division of environment finds that any person has violated any provision of any approval, 

permit or compliance plan or any provision of this act or any rule and regulation 

promulgated under this act, the secretary may issue an order finding such person in 

violation of the act and directing the person to take such action as necessary to correct the 

violation. Any order issued shall specify the 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 service of the order. Hearings before the secretary shall be 

conducted in accordance with the Kansas 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 emissions from an air pollution source or 

combination of air pollution sources presents: (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 regulations 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 secretary may commence an action 

in the district court to enjoin acts or practices specified in subsection (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 specified in subsection (a). An action for 

injunction under this subsection shall have precedence over other cases in respect to order 

of trial. 

(d) The owner or operator, or both, aggrieved by an order 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 other 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, structure, process or equipment may apply to the secretary for a variance 

from rules and regulations governing the quality, nature, duration or extent of emissions. 

The application shall be accompanied by such information and data as the secretary may 

reasonably require. The secretary may grant such variance if the secretary finds that: 

(1) The emissions occurring or proposed to occur do not endanger or tend 

significantly to endanger human health or safety; and 

(2) Compliance with the rules and regulations from which variance is sought 

would produce serious hardships without equal 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 the secretary has considered the relative interests of the 

applicant, other owners of property likely to be affected by the 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 under 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 prevention, 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 ground 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 necessary 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 for in subsections (c)(1) and (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 appropriate on initial granting 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 the complaint on due notice, the secretary 

finds that renewal is justified. No renewal shall be granted except on application therefor. 

Any such application shall be made at least 60 days prior to the expiration of the 

variance. Immediately upon receipt of an application for renewal the secretary shall give 

public notice of such application in accordance with rules and regulations of the 

secretary. 

(e) A variance or renewal shall 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 renewal thereof, the applicant or holder of a 

variance or renewal may file a request for a hearing with the secretary. Such hearing shall 

be conducted in accordance with the Kansas administrative procedure act. However, any 

person who participated in the public comment 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 secretary pursuant to this section shall have 

standing to obtain judicial review of the secretary's final action on the variance or renewal 

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 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 final 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 renewal, all written comments properly submitted 

KDHE, Bureau of Air 9 Last Revised: March 15, 2011 
to 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 testimony, the secretary's response to the public comments and 

testimony and the final variance or renewal. 

(f) Nothing in this section and no variance or renewal granted pursuant hereto 

shall be construed to prevent or limit the application of the emergency 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, reports 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 particular 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 trade secrets of such person under the uniform trade secrets act 

(K.S.A. 60-3320 et seq. and amendments thereto), the secretary shall consider such 

record, report or information, or particular portion thereof, confidential, except that: (1) 

Such record, report or information may be disclosed to officers, employees or authorized 

representatives of the United States government concerned with carrying out 

responsibilities under the federal clean air act and amendments thereto; and (2) this 

subsection shall not apply to any provision in any air quality approval 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 determine the degree of purity of the air within 

its jurisdiction, and may request consultation, technical assistance and cooperation from 

the secretary in conducting such tests and surveys. 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 have the authority, upon approval of the secretary, to establish 

a local air quality conservation 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) the likely ability of the local air quality conservation 

authority, as proposed, to maintain satisfactory air quality in its jurisdiction; and (3) 

KDHE, Bureau of Air 10 Last Revised: March 15, 2011 
whether or not the jurisdiction of the proposed local air quality 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 establish such additional rules, 

regulations and standards as necessary to maintain satisfactory air quality within their 

jurisdiction: Provided, That any rule, regulation or standard established by a local air 

quality conservation authority pertaining to health hazard shall be in compliance with the 

rules and regulations set forth for that area by the secretary: Provided further, That until 

the secretary shall adopt rules, regulations and standards respecting any area within the 

jurisdiction of a local air quality conservation authority, the rules, regulations and 

standards of such local authority respecting said area or areas shall have full force and 

effect without approval thereof by the secretary. 

Upon the establishment of a local air quality conservation authority, such 

authority and the secretary shall have concurrent jurisdiction over the local area with 

power and authority to maintain adequate air quality in accordance with the rules, 

regulations and standards adopted by the secretary. 

When two (2) or more cities, two (2) or more counties or a city and a county, or 

any combination thereof, are affected by a common air mass of unsatisfactory quality and 

the respective local air quality control authorities, if such exist, are for any reason unable 

to agree upon a solution or settlement to such air quality problem, the secretary shall, 

after review and investigation, render decisions and make findings 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 motor 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 installation and use of equipment designed to reduce 

or eliminate emissions and for the proper maintenance of such equipment and of vehicles. 

Any rules or regulations pursuant to this section 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 the initial sale of a 

vehicle or vehicular equipment, the inspection, 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, approved or otherwise authorized pursuant to 

federal law. 

(b) As used in this section "motor vehicle" 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 provision 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 violation for which it is 

assessed. In the case of a continuing violation, every day such violation continues shall be 

deemed a separate violation. 

(b) No penalty shall be imposed pursuant 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, 2011 
director of the division of environment issued to the person who committed the violation. 

The order shall state the violation, 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 after 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 other 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 jurisdiction or authority with respect to air 

contamination existing solely within commercial and industrial plants, works and shops. 

(b) Affect the relations between employers and employees. 

(c) Supersede or limit the applicability of any law or ordinance relating to 

industrial health, safety 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 unconstitutional, 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 secretary of health and environment. 

(c) "Person" means any individual, company, corporation, institution, 

municipality, township, county, state agency or federal agency. History: L. 1978, ch. 

352, § 1; July 1. 

65-3022. Same; determining and monitoring of power generation 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 thereof, 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. Such fees shall be determined and collected 

annually, and such determination shall be based upon the size and type of such facilities. 

In establishing programs for determining and monitoring environmental impact, the 

secretary shall take into consideration monitoring programs conducted by other persons 

and where possible avoid duplication of effort 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, 2011 
monitoring programs to be conducted 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 receipt 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 appropriation 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 the direct and indirect costs of administering 

the provisions of the Kansas air quality act. The secretary shall adopt rules and 

regulations fixing such fees and shall periodically increase or decrease such fees 

consistent with the need to cover the direct 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 facility, 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 under the provisions of this act, including 

administrative expenses, civil penalties and moneys paid under any agreement, 

stipulation or settlement; and 

(3) interest attributable to investment 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 fee fund interest earnings based 

on: 

(1) The average daily balance of moneys in the air quality fee fund for the 

preceding month; and 

(2) the net earnings rate of the pooled money investment 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 and 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 approval or permit issued under this act. 

(c) Violate any provision of this act or any rule and regulation promulgated under 

this act, unless the secretary makes a determination relating to the permittee that the 

specified provisions referred to in such determination 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 regulation 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 section; (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 program 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 permit allowing such construction, modification, 

alteration, use or operation. 

(e) At any time, refuse or hinder entry, 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 identifies 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 promulgated 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 violation, every day such violation continues shall 

be deemed a separate violation. 

(d) The county or district attorney of every county shall file appropriate actions 

for enforcement of this section upon request of the secretary or upon the county or district 

attorney's own motion after consultation 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 stationary source technical and environmental 

KDHE, Bureau of Air 14 Last Revised: March 15, 2011 
compliance assistance program, to be administered by the secretary. The program shall 

include each of the following: 

(1) Adequate mechanisms for developing, collecting and coordinating 

information concerning compliance methods and technologies for small business 

stationary sources and programs to encourage 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 detection and prevention, including providing 

information concerning alternative technologies, 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 serve as ombudsman for small business stationary 

sources in connection with implementation 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 regulation or standard adopted under this act. 

(6) Adequate mechanisms for informing small business stationary sources of 

their obligations under this act, including mechanisms for referring such sources to 

qualified auditors or for providing audits of the operations of such sources to determine 

compliance with this act. 

(7) Procedures for consideration 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 milestones for implementing such work practice or 

method of compliance preceding any applicable compliance date, based on the 

technological and financial capability of any such small business stationary source. No 

such modification may be granted unless it is in compliance with the applicable 

requirement of this act and rules and regulations promulgated 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 fewer 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 secretary, after notice and opportunity for 

public comment, may include as a small business stationary source for purposes of this 

section any stationary source which does not meet the criteria of subsection (b)(3), (4) or 

(5) but which does not emit more than 100 tons per 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 requirements 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 administrator of the United States small 

business administration and after providing notice and the opportunity for public hearing, 

may exclude from the small business stationary source definition any category or 

subcategory of sources that the secretary determines to have sufficient technical and 

financial capabilities to meet the requirements of the act without the application of this 

section. 

(f) There is hereby created a compliance 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 severity of enforcement; 

(2) make periodic reports to the administrator of the United States environmental 

protection agency concerning compliance of the small business stationary source 

technical and environmental compliance assistance program with the requirements of the 

federal paperwork reduction act, the regulatory 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 the 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 the governor to represent the general public; 

(2) two members who are owners, or who represent owners, of small business 

stationary sources, one appointed by the speaker and one appointed by the minority 

leader of the Kansas house of representatives; 

(3) two members who are owners, or who represent owners, of small business 

stationary sources, one appointed by the president 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 speaker 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 the senate or the secretary of health and 

environment shall serve for terms ending June 30, 1997. Upon expiration of such terms, 

the term of each member appointed to a vacancy created by expiration of a term shall be 

two years commencing on July 1 immediately following expiration 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 annually by the members of the compliance 

advisory panel. A vice-chairperson shall be designated 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 required by this act for any classification of 

small business sources to take into account the 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 agreement 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 administrative agencies consistent 

with article V of the settlement agreement. 

(b) This section shall be part of and supplemental to the Kansas air quality act. 

History: L. 2009, ch. 141, § 42; May 28. 

65-3030. Severability clause. The provisions of this act [*] are declared to be 

severable and if any provision, word, phrase or clause of the act or the application thereof 

to any person shall be held invalid, 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 Kansas 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 E

Oral comment was received from one (1) person from the public during the hearing. Each 

person that presented oral comment was asked to provide a written 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. 

RECOMMENDATIONS 

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 4
Attachment 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 

secretary 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 the Flint Hills Conference 

Room of the 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 people 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 Attachment 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 efforts

and 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. No 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.” The 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 

Ambient 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 projects 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.

Comment: “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) regulations.”

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 PM2.5” by reference. 

Action: KDHE has addressed Westar’s comment by incorporating the adoption 

by reference of the October 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, Transportation 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. Continuing 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 designation 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 transportation 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 funding 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 that 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, MidAmerica 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 Regional 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 the 

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 criteria 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 and 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 impacts of projects on air quality.
Attachment 4 to the Report of the Hearing Officer

Page 6 of 8
Attachment 4 to the Report of the Hearing Officer

Page 7 of 8
Attachment 4 to the Report of the Hearing Officer

Page 8 of 8
Section F








Section G
SIP 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 revision will 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) 

program 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 Clean 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 Matter 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 follows:

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) PM2.5 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 applicability 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 promulgated. 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 oxides 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 demonstrates 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 affected sources including the EPA 

attainment/nonattainment designation of the locations and the status of the attainment 

plan for the affected areas. [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 Lead 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 actual emissions from affected sources or, where 

appropriate, quantification of changes in actual emissions from affected sources 

through calculations of the differences between certain baseline levels and allowable 

emissions anticipated as a result of the revision. [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 changes 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 be 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 protected 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 model 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 

recordkeeping/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 changes to the compliance and enforcement strategies. The existing 

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 EXISTING AIR QUALITY REGULATIONS:

K.A.R. 28-19-350

February 8, 2012
[This Page Intentionally Left Blank]
K.A.R. 28-19-350 1 February 2012

Executive Summary

The Kansas Air Quality Act, K.S.A. 65-3001 et seq., authorizes the secretary of the 

Kansas 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 amendments, KDHE will submit a revised SIP to the USEPA 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 incorporate federal 

rule changes to 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” specifically to implement the revised National Ambient Air Quality 

Standard (NAAQS) for Fine Particulate Matter (PM2.5), to incorporate the deferral for CO2

emissions from bioenergy and other biogenic sources under the PSD Program and to remove 

language which excludes stayed, remanded or vacated provisions.

This Regulatory Impact 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 implements the New Source Review program that the USEPA 

promulgated at 40 CFR Parts 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 

stationary 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 the 
K.A.R. 28-19-350 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 construction 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 state 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 the requirements of 40 C.F.R. § 52.21 as adopted by 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 (PM2.5)—Increments, Significant Impact Levels (SILs) and 

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

CO2 Emissions From Bioenergy and Other Biogenic Sources Under 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 52 provisions that have been 

amended or promulgated since July 1, 2007 up to July 20, 2011. A short summary of each of 

these amendments is located in Attachment A.

Part/Subpart Federal Register

Citation/Date Description

51.165-51.166 Subpart I; 

Part 51 Appendix S;

52.21 Subpart A

72 FR 72616

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 28347

May 16, 2008 Implementation of the NSR Program for PM2.5
K.A.R. 28-19-350 3 February 2012

51.165-51.166 Subpart I;

Part 51 Appendix S;

52.21 Subpart A

73 FR 77895

December 19, 2008

PSD and Nonattainment NSR: Reasonable 

Possibility in Recordkeeping

52.21 Subpart A 74 FR 26099

June 1, 2009

Implementation of the NSR Program for PM2.5; 

Final rule and Notice of Grant of 

Reconsideration and Administrative Stay

52.21 Subpart A 74 FR 48156

September 22, 2009

Implementation of the NSR Program for PM2.5: 

Final Rule to Stay the Grandfathering Provision

51.165-51.166 Subpart I;

Part 51 Appendix S;

52.21 Subpart A

74 FR 50116

September 30, 2009

PSD and Nonattainment NSR: Reconsideration 

of Inclusion of Fugitive Emissions and 

Administrative Stay

51.165-51.166 Subpart 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 PM2.5 – Increments, Significant Impact 

Levels and Significant Monitoring 

Concentrations; Final Rule

51.165-51.166 Subpart I;

Part 51 Appendix S;

52.21 Subpart A

76 FR 17553

March 30, 2011

PSD and Nonattainment NSR: Inclusion of 

Fugitive Emissions; Interim Final Rule; Stay

51.166 Subpart I;

52.21 Subpart A;

70.2 Definitions

76 FR 34507

July 20, 2011

Deferral for CO2 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 

(PM2.5). The PM2.5 NAAQS establishes a limit on the acceptable exposure and public health 

impacts of fine particulate matter. The proposed amendments 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 that 
K.A.R. 28-19-350 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 modeling analyses to ensure that a project’s emissions will 

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

increase (PSD increment);

• Notification of Federal Land Manager of nearby Class I areas; and

• Public comment on the permit.

b) Environmental benefit

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 maintaining 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 PM2.5 are significant. Epidemiological 

studies have shown a significant correlation between elevated PM2.5 levels and premature 

mortality. Other important effects associated with PM2.5 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 PM2.5 exposure include older adults, people with heart and lung disease, and children.

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

new standards for fine particles, using PM2.5 as the indicator. The USEPA established health-
K.A.R. 28-19-350 5 February 2012

based (primary) annual and 24-hour standards for PM2.5 (62 FR 38652). The USEPA set an 

annual standard at a level of 15 micrograms per cubic meter (μg/m3) and a 24-hour standard at a 

level of 65 μg/m3. The USEPA also established welfare-based (secondary) standards identical to 

the primary standards. The secondary standards are designed to protect against major 

environmental effects of PM2.5 such as visibility impairment, soiling, and materials damage.

On October 17, 2006, the USEPA revised the primary and secondary NAAQS for PM2.5

and PM10. In that rulemaking, the USEPA reduced the 24-hour NAAQS for PM2.5 to 35 μg/m3

and retained the existing annual PM2.5 NAAQS of 15 μg/m3. In addition they retained PM10 as 

the indicator for coarse PM, retained the existing PM10 24-hour NAAQS of 150 μg/m3, and 

revoked the annual PM10 NAAQS (which had previously been set at 50 μg/m3

). See 71 FR 

61236.

The PM2.5 NAAQS establishes a limit on the acceptable exposure and public health 

impacts for fine particulate matter. These amendments of K.A.R. 28-19-350 parallel changes to 

40 C.F.R. § 52.21 to implement the PM2.5 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 action is primarily being proposed to implement the 

PM2.5 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 for all pollutants where the area the source is located is in 

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

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

promulgated for six criteria 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 

requirement for participating in or implementing a federally subsidized or assisted 
K.A.R. 28-19-350 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 USEPA, is maintained by assuring that all state program 

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, these 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 those 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 USEPA has 

determined that the expansion of the NSR program to cover PM2.5 and its precursors is expected 

to increase only marginally the costs to owners and operators of PM2.5 sources that become 

subject to the program [73 FR 28345, May 16, 2008].

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

permitting authority. In 2011, there was only one PSD permit issued for which a PM2.5 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 annual 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 amendments 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 process. They expect the rule changes to increase the burden associated 
K.A.R. 28-19-350 7 February 2012

with major NSR permitting for tracking new emissions of PM2.5 against increments; collecting 

ambient air quality monitoring data for existing PM2.5 concentrations; reviewing the effects of 

PM2.5 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 expanding the PSD program to include PM2.5 has necessitated 

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

with the permitting reviewing process and for tracking new emissions of PM2.5 against 

increments. It is estimated that this cost equals 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 entities 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 and local reviewing authorities [73 FR 28344 May 15, 2008]. To apply 

these estimates to Kansas, the 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 308,745,538:

• 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 Implementation 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 Act 
K.A.R. 28-19-350 8 February 2012

legislation is not fully understood, as it has yet to occur. One known consequence to noncompliance 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 (PM2.5).

e) Description 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 

achieve 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 have 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 A
Attachment 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 governing 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 possibility” 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 requirements 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 acceptable 

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” recordkeeping requirements apply.

 §51.165 - 51.166 Subpart I; Part 51 Appendix S; §52.21 Subpart A

May 16, 2008 Volume 73: 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 ‘‘PM2.5’’). The NSR program was created by 

the Clean Air Act (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, included 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 PM2.5, interpollutant trading for offsets and applicability of NSR to PM2.5

precursors.

 §51.165 - 51.166 Subpart I; Part 51 Appendix S; §52.21 Subpart A

December 19, 2008 Volume 73: 77882 – 77902

The 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 emissions 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 74: 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, submitted 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 (PM2.5),’’ published on

May 16, 2008. In addition, EPA has administratively stayed one of the provisions to which the 

petitioners objected—a ‘‘grandfathering’’ provision for PM2.5 contained in the federal prevention 
Attachment A

Summary of C.F.R. Amendments

Page 2

of significant deterioration (PSD) program. The EPA 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 the 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.

 §52.21 Subpart A

September 22, 2009 Volume 74: 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 (PM2.5) requirements in 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 Particulate Matter Less Than 2.5 Micrometers (PM2.5).’’ 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 propose, take public comment on, and issue a final action concerning the repeal of the

grandfathering provision for PM2.5 in the Federal PSD program.

 §51.165 - 51.166 Subpart I; Part 51 Appendix S; §52.21 Subpart A 

September 30, 2009 Volume 74: 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 for 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 decision 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 Subpart A 

December 11, 2009 Volume 74: 65692 – 65696

EPA is making an interim final determination to provide an additional stay of the regulations

concerning the inclusion of fugitive emissions.

 §51.165 - 51.166 Subpart I; Part 51 Appendix S; §52.21 Subpart A

March 31, 2010 Volume 75: 16012 – 16017

In this final action, EPA is issuing a stay for 18 months of the inclusion of fugitive emissions

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 modification 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 75: 31514 – 31608

This rule “tailor” the applicability criteria that determines which stationary sources and

modification projects become subject to permitting requirements for 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 adopted in the last update to K.A.R. 28-19-350 

(effective Nov. 29, 2010) and approved by the USEPA 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 75: 64864 – 64907

The EPA is amending the requirements for particulate matter less than 2.5 micrometers 

(PM2.5) under the Prevention of Significant Deterioration (PSD) program by adding maximum

allowable increases in ambient pollutant concentrations (‘‘increments’’) and two screening tools, 

known as the Significant Impact Levels (SILs) and a Significant Monitoring Concentration

(SMC) for PM2.5. The SILs for PM2.5 are also being added to two other New Source Review 

(NSR) rules that regulate the construction and modification of any major 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; Part 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 effective 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 paragraphs 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 Deterioration (PSD) and Title V permitting requirements to biogenic carbon dioxide 

(CO2) 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 the 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 CO2

emissions are not required to be counted for applicability purposes under the PSD and Title V 

permitting programs. 
ATTACHMENT B
National 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/m3 (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]

PM2.5

primary and 

secondary

Annual 15 μg/m3 annual mean, averaged over 3 

years

24-hour 35 μg/m3 98th percentile, averaged over 3 

years

PM10

primary and

secondary 24-hour 150 μg/m3

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 

maximum 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/m3 as a quarterly average) remains in effect until 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 official level of the annual NO2 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 maximum 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 obligations 

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, 2010. The 1971 annual and 24-hour SO2 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 standards, where the 1971 standards remain in effect until implementation plans to attain 

or maintain the 2010 standard are approved.