[Federal Register Volume 65, Number 7 (Tuesday, January 11, 2000)]
[Rules and Regulations]
[Pages 1545-1548]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-270]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[085-1085b; FRL-6517-9]


Approval and Promulgation of Implementation Plans; State of 
Kansas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving a variety of revisions to the State 
Implementation Plan (SIP) for Kansas. These revisions include revising 
and renumbering regulatory definitions, streamlining opacity 
requirements, expanding testing of gasoline delivery vehicles, and 
methods for calculating actual emissions. These revisions enhance and 
strengthen the SIP to promote attainment and maintenance of established 
air quality standards.

DATES: This direct final rule is effective on March 13, 2000 without 
further notice, unless EPA receives adverse comment by February 10, 
2000. If adverse comment is received, EPA will publish a timely 
withdrawal of the direct final rule in the Federal Register and inform 
the public that the rule will not take effect.

ADDRESSES: All comments should be addressed to: Christopher D. Hess, 
U.S. EPA Region VII, 901 North 5th Street, Kansas City, Kansas 66101, 
or via e-mail at <a href="/cdn-cgi/l/email-protection#422a2731316c212a302b31362d322a2730022732232f232b2e6c2732236c252d34"><span class="__cf_email__" data-cfemail="7a121f09095419120813090e150a121f083a1f0a1b171b1316541f0a1b541d150c">[email protected]</span></a>.
    Copies of the state submittal(s) are available at the following 
addresses for inspection during normal business hours: Environmental 
Protection Agency, Air Planning and Development Branch, 901 North 5th 
Street, Kansas City, Kansas 66101; and the Environmental Protection 
Agency, Air and Radiation Docket and Information Center, Air Docket 
(6102), 401 M Street, SW, Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT: Christopher D. Hess, Air Planning and 
Development Branch, 901 North 5th Street, Kansas City, Kansas 66101, 
(913) 551-7213.

SUPPLEMENTARY INFORMATION:
    Information regarding this action is presented in the following 
order:
    Why is EPA taking this action?
    Who should be concerned with these revisions?
    How does EPA decide these revisions are approvable?
    ``Final Action.''
    Throughout this document, wherever ``we, us, or our'' is used, that 
means EPA.

Why Is EPA Taking This Action?

    The state of Kansas maintains a SIP that contains regulations, 
control measures, and strategies to maintain national ambient air 
quality standards (NAAQS). Our process for approving revisions to the 
SIP allows all interested citizens, government agencies, and regulated 
groups and individuals to know precisely what is in the SIP. It also 
allows us or the public to take enforcement action to address 
violations of the approved regulations.

Who Should Be Concerned With These Revisions?

    If you use the state of Kansas' regulatory definitions, are 
concerned with opacity requirements (especially in Wyandotte County), 
operate a gasoline delivery vehicle in Kansas City, or need to know how 
to calculate actual emissions, the revisions we are approving may 
interest you. We are providing a summary of each revision in the next 
four sections.

A. Kansas Regulatory Definitions

    K.A.R. 28-19-7 of the previously approved SIP contained the primary 
definitions for the Kansas air quality regulations. This section is now 
revoked. The definitions are now included in K.A.R. 29-19-200, which is 
a planned renumbering of the regulations by the state. Furthermore, the 
Federal lists of volatile organic compounds (VOC) and hazardous air 
pollutants that were previously contained in K.A.R. 28-19-7 are now 
contained in K.A.R. 28-19-201. K.A.R. 28-19-16a, regarding new source 
permit requirements for designated nonattainment areas, is amended to 
remove duplications of certain terms previously contained in K.A.R. 28-
19-7 that now appear in K.A.R. 28-19-200.
    The net effect is that the definitions are now renumbered, free of 
duplications, and the Federal lists are now separated from the main 
body of definitions so that changes generated by Federal revisions can 
be made quickly and without reprinting the entire definitions section 
(e.g., the new K.A.R. 28-19-200) each time a Federal revision is 
enacted.

B. Opacity

    K.A.R. 28-19-50 of the previously approved SIP contained the 
general opacity regulations (``opacity'' is a term that describes the 
percentage of visible air emissions allowable from an emissions unit). 
K.A.R. 28-19-52 contained the exceptions to the general opacity 
requirements contained in K.A.R. 28-19-50.
    Both of the existing opacity regulations are now revoked. Their 
content is now incorporated into K.A.R. 28-19-650. This new, single 
regulation also incorporates provisions for Wyandotte County regarding 
opacity.
    The net effect of these revisions is that previous opacity 
requirements remain in effect but are now contained in renumbered 
regulations. Additionally, by including the local rules from Wyandotte 
County, the state rule is now consistent with the local rule, which was 
previously approved by EPA as part of the SIP as a local, but not a 
state, rule.

C. Gasoline Delivery Vehicles in Kansas City

    K.A.R. 28-19-70 in the Kansas air quality regulations establish 
controls on emissions of VOCs from gasoline delivery vehicles. The 
regulation is now revised so that inspections of vehicles to determine 
compliance is expanded from two months to five months of each year. 
This change will increase the ability of Kansas to ensure that testing 
and compliance demonstrations are performed for gasoline delivery 
vehicles.

D. Method for Determining Actual Emissions

    In regulation K.A.R. 28-19-20, the state outlines various 
alternatives for calculating actual emissions for owners or operators 
of an emissions unit or stationary source.

[[Page 1546]]

    The regulation enables sources to determine actual emissions using 
data from continuous monitoring systems, approved emissions factors, 
material balances, or methods specified in an issued permit. If a 
source is unable to qualify for one of these methods, the calculation 
will be performed using the potential to emit of the emission unit or 
stationary source.

E. Permit Applicability Limits

    We are not acting on one portion of the Kansas SIP submittal. The 
May 3, 1999, submittal contains a new regulation, K.A.R. 28-19-564, 
which provides an exemption from certain major source permitting 
requirements for sources which limit their emissions to specified 
levels. During the state's rule adoption process, we commented that the 
rule should be revised to define more clearly the records that sources 
must keep to demonstrate their emission levels. In response, Kansas 
indicated that it would make changes in the rule to address EPA 
concerns at a later date. EPA plans to propose action on K.A.R. 28-19-
564 after the state has made revisions and submitted them to EPA.
    If you are interested in a technical analysis of these revisions, 
please request the technical support document (TSD) from us. It is 
dated July 22, 1999, and titled ``Kansas SIP Revisions, 1999.'' Please 
refer to the contact information provided in the summary section of 
this document to request the TSD.

How Does EPA Decide These Revisions Are Approvable?

    First, we participate with the state to identify which portions of 
the SIP need to be revised to, for example, incorporate changes in 
Federal regulations or strengthen measures used to maintain the NAAQS. 
The state then initiates a public consultation process that allows 
anyone who is interested to provide comments on proposed regulations. 
Once these regulations are adopted as final by the state, they are 
submitted to us for Federal approval.
    We then compare the state's revised regulations to established 
Federal criteria to ensure those regulations meet all Federal criteria. 
(Although we participate early in the rule revision process, the 
subsequent public review process can occasionally mean the state makes 
certain revisions to the proposed regulations. So, we make sure that 
any revisions still meet all applicable criteria after the state 
regulations are finalized).
    The criteria we use are contained in a variety of documents such as 
the Clean Air Act (CAA) and the Code of Federal Regulations. When a 
state's proposals fulfill Federal requirements, we propose approval 
through this Federal Register document.
    As mentioned earlier, we have conducted a rigorous technical 
analysis of these revisions in our TSD, and anyone who is interested 
can request that document to examine these revisions more closely.
    In summary, we consider all of the proposed revisions 
noncontroversial and fully approvable. Each revision is already an 
adopted requirement in Kansas and, as such, has undergone extensive 
public review and comment process. Therefore, we are not imposing any 
new requirements that are not already in effect in the state of Kansas 
or in Wyandotte County.

Final Action

    EPA is approving revisions submitted by the state of Kansas 
regarding the topics outlined in this document. Nothing in this action 
should be construed as making any determinations or expressing any 
position with regard to Kansas' audit law (K.S.A. 60-3332, et seq.), 
and this action does not express or imply any viewpoint regarding any 
legal deficiencies in this or any other Federally authorized, 
delegated, or approved program resulting from the effect of Kansas' 
audit law.
    EPA is publishing this document without prior proposal because the 
Agency views this as a noncontroversial submittal and anticipates no 
adverse comments. However, in the proposed rules section of this 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal to approve the SIP revision should 
adverse comments be filed. This action will be effective March 13, 2000 
without further notice unless the Agency receives adverse comments by 
February 10, 2000.
    If EPA receives such comments, then EPA will publish a document 
withdrawing the final rule and informing the public that the rule will 
not take effect. All public comments received will then be addressed in 
a subsequent final rule based on the proposed rule. EPA will not 
institute a second comment period. Parties interested in commenting 
should do so at this time. If no such comments are received, the public 
is advised that this action will be effective on March 13, 2000 and no 
further action will be taken on the proposed rule.

Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.''

B. Executive Order 13132

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Order 12612 (Federalism) and Executive Order 12875 (Enhancing 
the Intergovernmental Partnership). Executive Order 13132 requires EPA 
to develop an accountable process to ensure ``meaningful and timely 
input by state and local officials in the development of regulatory 
policies that have federalism implications.'' ``Policies that have 
federalism implications'' is defined in the Executive Order to include 
regulations that have ``substantial direct effects on the states, on 
the relationship between the national government and the states, or on 
the distribution of power and responsibilities among the various levels 
of government.'' Under Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal Government provides the funds necessary to pay the direct 
compliance costs incurred by state and local governments, or EPA 
consults with state and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts state law unless the 
Agency consults with state and local officials early in the process of 
developing the proposed regulation.
    This final rule will not have substantial direct effects on the 
states, on the relationship between the national government and the 
states, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132. 
Thus, the requirements of section 6 of the Executive Order do not apply 
to this rule.

C. Executive Order 13045

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997) applies to any rule that: (1) is 
determined to be ``economically significant'' as defined under 
Executive Order 12866, and (2) concerns an environmental health or 
safety risk that EPA has reason to believe may have a disproportionate 
effect on children. If the regulatory action meets both criteria, the 
Agency must evaluate the environmental health or safety effects of the 
planned rule on children, and

[[Page 1547]]

explain why the planned regulation is preferable to other potentially 
effective and reasonably feasible alternatives considered by the 
Agency.
    This rule is not subject to Executive Order 13045 because it is not 
an economically significant regulatory action as defined by Executive 
Order 12866, and it does not establish a further health or risk-based 
standard because it approves state rules which implement a previously 
promulgated health or safety-based standard.

D. Executive Order 13084

    Under Executive Order 13084, Consultation and Coordination with 
Indian Tribal Governments, EPA may not issue a regulation that is not 
required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
Government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to OMB, in a separately identified section of 
the preamble to the rule, a description of the extent of EPA's prior 
consultation with representatives of affected tribal governments, a 
summary of the nature of their concerns, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 13084 
requires EPA to develop an effective process permitting elected 
officials and other representatives of Indian tribal governments ``to 
provide meaningful and timely input in the development of regulatory 
policies on matters that significantly or uniquely affect their 
communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. Accordingly, the requirements 
of section 3(b) of Executive Order 13084 do not apply to this rule.

E. Regulatory Flexibility Act (RFA)

    The RFA generally requires an agency to conduct a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements, unless the agency certifies that the rule will 
not have a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small not-for-profit 
enterprises, and small governmental jurisdictions. This final rule will 
not have a significant impact on a substantial number of small entities 
because SIP approvals under section 110 and Subchapter I, Part D of the 
CAA do not create any new requirements, but simply approve requirements 
that the state is already imposing. Therefore, I certify that this 
action will not have a significant economic impact on a substantial 
number of small entities. Moreover, due to the nature of the Federal-
state relationship under the CAA, preparation of flexibility analysis 
would constitute Federal inquiry into the economic reasonableness of 
state action. The CAA forbids EPA to base its actions concerning SIPs 
on such grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 
(1976); 42 U.S.C. 7410(a)(2).

F. Unfunded Mandates

    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
annual costs to state, local, or tribal governments in the aggregate, 
or to the private sector, of $100 million or more. Under Section 205, 
EPA must select the most cost-effective and least burdensome 
alternative that achieves the objectives of the rule and is consistent 
with statutory requirements. Section 203 requires EPA to establish a 
plan for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated does not 
include a Federal mandate that may result in estimated annual costs of 
$100 million or more to either state, local, or tribal governments in 
the aggregate, or to the private sector. This Federal action approves 
preexisting requirements under state or local law, and imposes no new 
requirements. Accordingly, no additional costs to state, local, or 
tribal governments, or to the private sector, result from this action.

G. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the United States Senate, the United States 
House of Representatives, and the United States Comptroller General 
prior to publication of the rule in the Federal Register. This rule is 
not a ``major rule'' as defined by 5 U.S.C. 804(2).

H. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by March 13, 2000. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purposes of judicial review, nor does 
it extend the time within which a petition for judicial review may be 
filed, and shall not postpone the effectiveness of such rule or action. 
This action may not be challenged later in proceedings to enforce its 
requirements. [See section 307(b)(2).]

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides.

    Dated: November 29, 1999.
Dennis Grams, P.E.,
Regional Administrator, Region VII.
    Chapter I, title 40 of the Code of Federal Regulations is amended 
as follows:

PART 52--[AMENDED]

    1. The authority citation for Part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart R--Kansas

    2. In Sec. 52.870 the table in paragraph (c) is amended by:
    a. Removing entries ``K.A.R. 28-19-7'' and ``K.A.R. 28-19-50'';
    b. Revising entries ``K.A.R. 28-19-16a'', ``K.A.R. 28-19-20'' and 
``K.A.R. 28-19-70'';
    c. Adding in numerical order entries ``K.A.R. 28-19-200'' and 
``K.A.R. 28-19-201'' under the heading ``General Provisions''; and
    d. Adding in numerical order the entry ``K.A.R. 28-19-650'' under 
the heading ``Open Burning Restrictions.''
    The revisions and additions read as follows:


Sec. 52.870  Identification of plan.

* * * * *
    (c) EPA-approved regulations.

[[Page 1548]]



                                         EPA-Approved Kansas Regulations
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                                                               State
           Kansas citation                     Title         effective   EPA approval date       Explanations
                                                                date
----------------------------------------------------------------------------------------------------------------
       Kansas Department of Health and Environment Ambient Air Quality Standards and Air Pollution Control
----------------------------------------------------------------------------------------------------------------
*                  *                  *                  *                  *                  *
                                                        *
----------------------------------------------------------------------------------------------------------------
                                         Nonattainment Area Requirements
----------------------------------------------------------------------------------------------------------------
*                  *                  *                  *                  *                  *
                                                        *
 
K.A.R. 28-19-16a.....................  Definitions.........   10/10/97  1/11/00, 65 FR 1548
*                  *                  *                  *                  *                  *
                                                        *
----------------------------------------------------------------------------------------------------------------
                                         Processing Operation Emissions
----------------------------------------------------------------------------------------------------------------
*                  *                  *                  *                  *                  *
                                                        *
 
K.A.R. 28-19-20......................  Calculation of          9/28/93  1/11/00, 65 FR 1548
                                        Actual Emissions.
*                  *                  *                  *                  *                  *
                                                        *
----------------------------------------------------------------------------------------------------------------
                                       Volatile Organic Compound Emissions
----------------------------------------------------------------------------------------------------------------
*                  *                  *                  *                  *                  *
                                                        *
 
K.A.R. 28-19-70......................  Leaks from Gasoline     5/15/98  1/11/00, 65 FR 1548
                                        Delivery Vessels
                                        and Vapor
                                        Collection Systems.
*                  *                  *                  *                  *                  *
                                                        *
----------------------------------------------------------------------------------------------------------------
                                               General Provisions
----------------------------------------------------------------------------------------------------------------
*                  *                  *                  *                  *                  *
                                                        *
 
K.A.R. 28-19-200.....................  General Provisions;    10/10/97  1/11/00, 65 FR 1548  New rule. Replaces
                                        definitions.                                          K.A.R. 28-19-7
                                                                                              definitions.
K.A.R. 28-19-201.....................  General Provisions;    10/10/97  1/11/00, 65 FR 1548  New rule. Replaces
                                        Regulated Compounds                                   Regulated
                                        List.                                                 Compounds in
                                                                                              K.A.R.  28-19-7.
*                  *                  *                  *                  *                  *
                                                        *
----------------------------------------------------------------------------------------------------------------
                                            Open Burning Restrictions
----------------------------------------------------------------------------------------------------------------
*                  *                  *                  *                  *                  *
                                                        *
 
K.A.R. 28-19-650.....................  Emissions Opacity        3/1/96  1/11/00, 65 FR 1548  New rule. Replaces
                                        Limits.                                               K.A.R. 28-19-50
                                                                                              and 28-19-52.
*                  *                  *                  *                  *                  *
                                                        *
----------------------------------------------------------------------------------------------------------------

[FR Doc. 00-270 Filed 1-10-00; 8:45 am]
BILLING CODE 6560-50-P


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