Federal Register / Vol. 80, No. 44 / Friday, March 6, 2015 / Proposed Rules 12109 

demonstrating that treating the 

individual as an employee of the Public 

Health Service for purposes of 42 U.S.C. 

233(g) would no longer expose the 

United States to an unreasonably high 

degree of risk of loss. 

(c) Upon receiving a petition for 

reinstatement, the initiating official 

shall determine, in the initiating 

official’s unreviewable discretion, 

whether the petition makes a prima 

facie case that no longer would expose 

the United States to an unreasonably 

high degree of risk of loss. The initiating 

official’s determination that a petition 

does not make a prima facie case is not 

subject to further review. 

(d) Upon a prima facie case having 

been made, an administrative law judge 

shall be appointed in accordance with 5 

U.S.C. 3105 and shall conduct such 

proceedings pursuant to §§ 15.13 

through 15.16 as the administrative law 

judge deems necessary, in his or her 

sole discretion, to determine whether 

the individual has established that 

treating the individual as an employee 

of the Public Health Service for 

purposes of 42 U.S.C. 233(g) would no 

longer expose the United States to an 

unreasonably high degree of risk of loss, 

and shall submit written findings of 

fact, conclusions of law, and a 

recommended decision to the 

adjudicating official pursuant to § 15.16. 

(e) On a petition for reinstatement, the 

adjudicating official shall make the final 

agency determination, on the basis of 

the record, findings, conclusions, and 

recommendations presented by the 

administrative law judge, which shall 

include the record from the original 

determination and any petition for 

rehearing. All determinations made by 

the adjudicating official under this rule 

shall constitute final agency actions. 

(f) A determination that an individual 

is reinstated pursuant to this section 

shall be distributed in the same manner 

as provided in § 15.19. 

Dated: February 25, 2015. 

Eric H. Holder, Jr., 

Attorney General. 

[FR Doc. 2015–05027 Filed 3–5–15; 8:45 am] 

BILLING CODE 4410–12–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R07–OAR–2014–0528; FRL–9924–04- 

Region 7] 

Approval and Promulgation of 

Implementation Plans; State of 

Kansas; Infrastructure SIP 

Requirements for the 2010 Sulfur 

Dioxide National Ambient Air Quality 

Standard 

AGENCY: Environmental Protection 

Agency. 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

elements of a State Implementation Plan 

(SIP) submission from the State of 

Kansas addressing the applicable 

requirements of Clean Air Act (CAA) 

section 110 for the 2010 National 

Ambient Air Quality Standards 

(NAAQS) for Sulfur Dioxide (SO2), 

which requires that each state adopt and 

submit a SIP to support implementation, 

maintenance, and enforcement of each 

new or revised NAAQS promulgated by 

EPA. These SIPs are commonly referred 

to as ‘‘infrastructure’’ SIPs. The 

infrastructure requirements are designed 

to ensure that the structural components 

of each state’s air quality management 

program are adequate to meet the state’s 

responsibilities under the CAA. 

DATES: Comments must be received on 

or before April 6, 2015. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R07– 

OAR–2014–0528, by one of the 

following methods: 

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

the on-line instructions for submitting 

comments. 

2. Email: kemp.lachala@epa.gov. 

3. Mail: Ms. Lachala Kemp, Air 

Planning and Development Branch, U.S. 

Environmental Protection Agency, 

Region 7, Air and Waste Management 

Division, 11201 Renner Boulevard, 

Lenexa, Kansas 66219. 

4. Hand Delivery or Courier: Deliver 

your comments to Ms. Lachala Kemp, 

Air Planning and Development Branch, 

U.S. Environmental Protection Agency, 

Region 7, Air and Waste Management 

Division, 11201 Renner Boulevard, 

Lenexa, Kansas 66219. 

Instructions: Direct your comments to 

Docket ID No. EPA–R07–OAR–2014– 

0528. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http://

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit through http://

www.regulations.gov or email 

information that you consider to be CBI 

or otherwise protected. The http://

www.regulations.gov Web site is an 

‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an email comment directly 

to EPA without going through http://

www.regulations.gov, your email 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and should be free of any 

defects or viruses. 

Docket: All documents in the 

electronic docket are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, i.e., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically at http://

www.regulations.gov or in hard copy at 

U.S. Environmental Protection Agency, 

Region 7, 11201 Renner Boulevard, 

Lenexa, Kansas 66219 from 8:00 a.m. to 

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

excluding legal holidays. The interested 

persons wanting to examine these 

documents should make an 

appointment with the office at least 24 

hours in advance. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Lachala Kemp, Air Planning and 

Development Branch, U.S. 

Environmental Protection Agency, 

Region 7, 11201 Renner Boulevard, 

Lenexa, KS 66219; telephone number: 

(913) 551–7214; fax number: (913) 551– 

7065; email address: kemp.lachala@

epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

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

to EPA. This section provides additional 


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1Stephen D. Page, Director, Air Quality Policy 

Division, Office of Air Quality Planning and 

Standards, ‘‘Guidance on Infrastructure State 

Implementation Plan (SIP) Elements Under Clean 

Air Act Sections 110(a)(1) and 110(a)(2),’’ 

Memorandum to EPA Regional Air Division 

Directors, Regions I–X, September 13, 2013. 

2For example: Section 110(a)(2)(E)(i) provides 

that states must provide assurances that they have 

adequate legal authority under state and local law 

to carry out the SIP; section 110(a)(2)(C) provides 

that states must have a SIP-approved program to 

address certain sources as required by part C of title 

I of the CAA; and section 110(a)(2)(G) provides that 

states must have legal authority to address 

emergencies as well as contingency plans that are 

triggered in the event of such emergencies. 

3See, e.g., ‘‘Rule To Reduce Interstate Transport 

of Fine Particulate Matter and Ozone (Clean Air 

Interstate Rule); Revisions to Acid Rain Program; 

Revisions to the NOX SIP Call; Final Rule,’’ 70 FR 

25162, at 25163—65 (May 12, 2005) (explaining 

relationship between timing requirement of section 

110(a)(2)(D) versus section 110(a)(2)(I)). 

information by addressing the following 

questions: 

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

infrastructure SIP? 

II. What are the applicable elements under 

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

III. What is EPA’s approach to the review of 

infrastructure SIP submissions? 

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

addressed the relevant elements of 

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

V. What action is EPA proposing? 

VI. Statutory and Executive Order Review 

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

infrastructure SIP? 

Section 110(a)(1) of the CAA requires, 

in part, that states make a SIP 

submission to EPA to implement, 

maintain and enforce each of the 

NAAQS promulgated by EPA after 

reasonable notice and public hearings. 

Section 110(a)(2) includes a list of 

specific elements that such 

infrastructure SIP submissions must 

address. SIPs meeting the requirements 

of sections 110(a)(1) and (2) are to be 

submitted by states within three years 

after promulgation of a new or revised 

NAAQS. These SIP submissions are 

commonly referred to as 

‘‘infrastructure’’ SIPs. 

II. What are the applicable elements 

under sections 110(a)(1) and (2)? 

On June 22, 2010, EPA revised the 

current 24-hour and annual standards 

with a new short-term standard based 

on the 3-year average of the 99th 

percentile of the yearly distribution of 

1-hour daily maximum SO2

concentrations. The level of the revised 

SO2 standard (hereafter the 2010 SO2

NAAQS) was set at 75 parts per billion 

(ppb) (75 FR 35519). 

For the 2010 SO2 NAAQS, states 

typically have met many of the basic 

program elements required in section 

110(a)(2) through earlier SIP 

submissions in connection with 

previous NAAQS. Nevertheless, 

pursuant to section 110(a)(1), states 

must review and revise, as appropriate, 

their existing SIPs to ensure that the 

SIPs are adequate to address the 2010 

SO2 NAAQS. To assist states in meeting 

this statutory requirement, EPA issued 

guidance on September 13, 2013 (2013 

Guidance), addressing the infrastructure 

SIP elements required under section 110 

(a)(1) and (2) for the 2010 SO2 NAAQS.1

EPA will address these elements below 

under the following headings: (A) 

Emission limits and other control 

measures; (B) Ambient air quality 

monitoring/data system; (C) Program for 

enforcement of control measures 

(prevention of significant 

deterioration)(PSD)), New Source 

Review for nonattainment areas, and 

construction and modification of all 

stationary sources); (D) Interstate and 

international transport; (E) Adequate 

authority, resources, implementation, 

and oversight; (F) Stationary source 

monitoring system; (G) Emergency 

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

Nonattainment areas; (J) Consultation 

with government officials, public 

notification, prevention of significant 

deterioration (PSD), and visibility 

protection; (K) Air quality and 

modeling/data; (L) Permitting fees; and 

(M) Consultation/participation by 

affected local entities. 

III. What is EPA’s approach to the 

review of infrastructure SIP 

submissions? 

EPA is acting upon the July 15, 2013, 

SIP submission from Kansas that 

addresses the infrastructure 

requirements of CAA sections 110(a)(1) 

and 110(a)(2) for the 2010 SO2 NAAQS. 

The requirement for states to make a SIP 

submission of this type arises out of 

CAA section 110(a)(1). Pursuant to 

section 110(a)(1), states must make SIP 

submissions ‘‘within 3 years (or such 

shorter period as the Administrator may 

prescribe) after the promulgation of a 

national primary ambient air quality 

standard (or any revision thereof),’’ and 

these SIP submissions are to provide for 

the ‘‘implementation, maintenance, and 

enforcement’’ of such NAAQS. The 

statute directly imposes on states the 

duty to make these SIP submissions, 

and the requirement to make the 

submissions is not conditioned upon 

EPA taking any action other than 

promulgating a new or revised NAAQS. 

Section 110(a)(2) includes a list of 

specific elements that ‘‘[e]ach such 

plan’’ submission must address. 

EPA has historically referred to these 

SIP submissions made for the purpose 

of satisfying the requirements of CAA 

sections 110(a)(1) and 110(a)(2) as 

‘‘infrastructure SIP’’ submissions. 

Although the term ‘‘infrastructure SIP’’ 

does not appear in the CAA, EPA uses 

the term to distinguish this particular 

type of SIP submission from 

submissions that are intended to satisfy 

other SIP requirements under the CAA, 

such as ‘‘nonattainment SIP’’ or 

‘‘attainment plan SIP’’ submissions to 

address the nonattainment planning 

requirements of part D of title I of the 

CAA, ‘‘regional haze SIP’’ submissions 

required by EPA rule to address the 

visibility protection requirements of 

CAA section 169A, and nonattainment 

new source review permit program 

submissions to address the permit 

requirements of CAA, title I, part D. 

Section 110(a)(1) addresses the timing 

and general requirements for 

infrastructure SIP submissions, and 

section 110(a)(2) provides more details 

concerning the required contents of 

these submissions. The list of required 

elements provided in section 110(a)(2) 

contains a wide variety of disparate 

provisions, some of which pertain to 

required legal authority, some of which 

pertain to required substantive program 

provisions, and some of which pertain 

to requirements for both authority and 

substantive program provisions.2 EPA 

therefore believes that while the timing 

requirement in section 110(a)(1) is 

unambiguous, some of the other 

statutory provisions are ambiguous. In 

particular, EPA believes that the list of 

required elements for infrastructure SIP 

submissions provided in section 

110(a)(2) contains ambiguities 

concerning what is required for 

inclusion in an infrastructure SIP 

submission. 

The following examples of 

ambiguities illustrate the need for EPA 

to interpret some section 110(a)(1) and 

section 110(a)(2) requirements with 

respect to infrastructure SIP 

submissions for a given new or revised 

NAAQS. One example of ambiguity is 

that section 110(a)(2) requires that 

‘‘each’’ SIP submission must meet the 

list of requirements therein. EPA has 

long noted that this literal reading of the 

statute is internally inconsistent and 

would create a conflict with the 

nonattainment provisions in part D of 

title I of the Act, which specifically 

address nonattainment SIP 

requirements.3 However, section 

110(a)(2)(I) which pertains to 

nonattainment SIP requirements and 

part D, addresses when attainment plan 

SIP submissions to address 

nonattainment area requirements are 

due. For example, section 172(b) 

requires EPA to establish a schedule for 


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4EPA notes that this ambiguity within section 

110(a)(2) is heightened by the fact that various 

subparts of part D set specific dates for submission 

of certain types of SIP submissions in designated 

nonattainment areas for various pollutants. Note, 

e.g., that section 182(a)(1) provides specific dates 

for submission of emissions inventories for the 

ozone NAAQS. Some of these specific dates are 

necessarily later than three years after promulgation 

of the new or revised NAAQS. 

5See, e.g., ‘‘Approval and Promulgation of 

Implementation Plans; New Mexico; Revisions to 

the New Source Review (NSR) State 

Implementation Plan (SIP); Prevention of 

Significant Deterioration (PSD) and Nonattainment 

New Source Review (NNSR) Permitting,’’ 78 FR 

4339 (January 22, 2013) (EPA’s final action 

approving the structural PSD elements of the New 

Mexico SIP submitted by the State separately to 

meet the requirements of EPA’s 2008 PM2.5 NSR 

rule), and ‘‘Approval and Promulgation of Air 

Quality Implementation Plans; New Mexico; 

Infrastructure and Interstate Transport 

Requirements for the 2006 PM2.5 NAAQS,’’ (78 FR 

4337) (January 22, 2013) (EPA’s final action on the 

infrastructure SIP for the 2006 PM2.5 NAAQS). 

6On December 14, 2007, the State of Tennessee, 

through the Tennessee Department of Environment 

and Conservation, made a SIP revision to EPA 

demonstrating that the State meets the requirements 

of sections 110(a)(1) and (2). EPA proposed action 

for infrastructure SIP elements (C) and (J) on 

January 23, 2012 (77 FR 3213) and took final action 

on March 14, 2012 (77 FR 14976). On April 16, 

2012 (77 FR 22533) and July 23, 2012 (77 FR 

42997), EPA took separate proposed and final 

actions on all other section 110(a)(2) infrastructure 

SIP elements of Tennessee’s December 14, 2007 

submittal. 

7For example, implementation of the 1997 PM2.5

NAAQS required the deployment of a system of 

new monitors to measure ambient levels of that new 

indicator species for the new NAAQS. 

8EPA notes, however, that nothing in the CAA 

requires EPA to provide guidance or to promulgate 

regulations for infrastructure SIP submissions. The 

CAA directly applies to states and requires the 

submission of infrastructure SIP submissions, 

regardless of whether or not EPA provides guidance 

or regulations pertaining to such submissions. EPA 

elects to issue such guidance in order to assist 

states, as appropriate. 

9 ‘‘Guidance on Infrastructure State 

Implementation Plan (SIP) Elements under Clean 

Air Act Sections 110(a)(1) and 110(a)(2),’’ 

Memorandum from Stephen D. Page, September 13, 

2013. 

10EPA’s September 13, 2013, guidance did not 

make recommendations with respect to 

infrastructure SIP submissions to address section 

110(a)(2)(D)(i)(I). EPA issued the guidance shortly 

after the U.S. Supreme Court agreed to review the 

DC Circuit decision in EME Homer City, 696 F.3d 

7 (D.C. Cir. 2012) which had interpreted the 

requirements of section 110(a)(2)(D)(i)(I). In light of 

the uncertainty created by this litigation (which 

culminated in the Supreme Court’s recent decision, 

134 S. Ct. 1584), EPA elected not to provide 

additional guidance on the requirements of section 

110(a)(2)(D)(i)(I) at that time. As the guidance is 

neither binding nor required by statute, whether 

EPA elects to provide guidance on a particular 

section has no impact on a state’s CAA obligations. 

submission of such plans for certain 

pollutants when the Administrator 

promulgates the designation of an area 

as nonattainment, and section 

107(d)(1)(B) allows up to two years, or 

in some cases three years, for such 

designations to be promulgated.4 This 

ambiguity illustrates that rather than 

apply all the stated requirements of 

section 110(a)(2) in a strict literal sense, 

EPA must determine which provisions 

of section 110(a)(2) are applicable for a 

particular infrastructure SIP submission. 

Another example of ambiguity within 

sections 110(a)(1) and 110(a)(2) with 

respect to infrastructure SIPs pertains to 

whether states must meet all of the 

infrastructure SIP requirements in a 

single SIP submission, and whether EPA 

must act upon such SIP submission in 

a single action. Although section 

110(a)(1) directs states to submit ‘‘a 

plan’’ to meet these requirements, EPA 

interprets the CAA to allow states to 

make multiple SIP submissions 

separately addressing infrastructure SIP 

elements for the same NAAQS. If states 

elect to make such multiple SIP 

submissions to meet the infrastructure 

SIP requirements, EPA can elect to act 

on such submissions either individually 

or in a larger combined action.5

Similarly, EPA interprets the CAA to 

allow it to take action on the individual 

parts of one larger, comprehensive 

infrastructure SIP submission for a 

given NAAQS without concurrent 

action on the entire submission. For 

example, EPA has sometimes elected to 

act at different times on various 

elements and sub-elements of the same 

infrastructure SIP submission.6

Ambiguities within sections 110(a)(1) 

and 110(a)(2) may also arise with 

respect to infrastructure SIP submission 

requirements for different NAAQS. 

Thus, EPA notes that not every element 

of section 110(a)(2) would be relevant, 

or as relevant, or relevant in the same 

way, for each new or revised NAAQS. 

The states’ attendant infrastructure SIP 

submissions for each NAAQS therefore 

could be different. For example, the 

monitoring requirements that a state 

might need to meet in its infrastructure 

SIP submission for purposes of section 

110(a)(2)(B) could be very different for 

different pollutants, therefore the 

content and scope of a state’s 

infrastructure SIP submission to meet 

this element might be very different for 

an entirely new NAAQS than for a 

minor revision to an existing NAAQS.7

EPA notes that interpretation of 

section 110(a)(2) is also necessary when 

EPA reviews other types of SIP 

submissions required under the CAA. 

Therefore, as with infrastructure SIP 

submissions, EPA also has to identify 

and interpret the relevant elements of 

section 110(a)(2) that logically apply to 

these other types of SIP submissions. 

For example, section 172(c)(7) requires 

that attainment plan SIP submissions 

required by part D have to meet the 

‘‘applicable requirements’’ of section 

110(a)(2). Thus, for example, attainment 

plan SIP submissions must meet the 

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

regarding enforceable emission limits 

and control measures and section 

110(a)(2)(E)(i) regarding air agency 

resources and authority. By contrast, it 

is clear that attainment plan SIP 

submissions required by part D would 

not need to meet the portion of section 

110(a)(2)(C) that pertains to the PSD 

program required in part C of title I of 

the CAA, because PSD does not apply 

to a pollutant for which an area is 

designated nonattainment and thus 

subject to part D planning requirements. 

As this example illustrates, each type of 

SIP submission may implicate some 

elements of section 110(a)(2) but not 

others. 

Given the potential for ambiguity in 

some of the statutory language of section 

110(a)(1) and section 110(a)(2), EPA 

believes that it is appropriate to 

interpret the ambiguous portions of 

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

in the context of acting on a particular 

SIP submission. In other words, EPA 

assumes that Congress could not have 

intended that each and every SIP 

submission, regardless of the NAAQS in 

question or the history of SIP 

development for the relevant pollutant, 

would meet each of the requirements, or 

meet each of them in the same way. 

Therefore, EPA has adopted an 

approach under which it reviews 

infrastructure SIP submissions against 

the list of elements in section 110(a)(2), 

but only to the extent each element 

applies for that particular NAAQS. 

Historically, EPA has elected to use 

guidance documents to make 

recommendations to states for 

infrastructure SIPs, in some cases 

conveying needed interpretations on 

newly arising issues and in some cases 

conveying interpretations that have 

already been developed and applied to 

individual SIP submissions for 

particular elements.8 EPA most recently 

issued guidance for infrastructure SIPs 

on September 13, 2013 (2013 

Guidance).9 EPA developed the 2013 

Guidance document to provide states 

with up-to-date guidance for 

infrastructure SIPs for any new or 

revised NAAQS. Within the 2013 

guidance, EPA describes the duty of 

states to make infrastructure SIP 

submissions to meet basic structural SIP 

requirements within three years of 

promulgation of a new or revised 

NAAQS. EPA also made 

recommendations about many specific 

subsections of section 110(a)(2) that are 

relevant in the context of infrastructure 

SIP submissions.10 The guidance also 


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11By contrast, EPA notes that if a state were to 

include a new provision in an infrastructure SIP 

submission that contained a legal deficiency, such 

as a new exemption for excess emissions during 

SSM events, then EPA would need to evaluate that 

provision for compliance against the rubric of 

applicable CAA requirements in the context of the 

action on the infrastructure SIP. 

discusses the substantively important 

issues that are germane to certain 

subsections of section 110(a)(2). 

Significantly, EPA interprets sections 

110(a)(1) and 110(a)(2) such that 

infrastructure SIP submissions need to 

address certain issues and need not 

address others. Accordingly, EPA 

reviews each infrastructure SIP 

submission for compliance with the 

applicable statutory provisions of 

section 110(a)(2), as appropriate. 

As an example, section 110(a)(2)(E)(ii) 

is a required element of section 

110(a)(2) for infrastructure SIP 

submissions. Under this element, a state 

must meet the substantive requirements 

of section 128, which pertain to state 

boards that approve permits or 

enforcement orders and heads of 

executive agencies with similar powers. 

Thus, EPA reviews infrastructure SIP 

submissions to ensure that the state’s 

SIP appropriately addresses the 

requirements of section 110(a)(2)(E)(ii) 

and section 128. The 2013 Guidance 

explains EPA’s interpretation that there 

may be a variety of ways by which states 

can appropriately address these 

substantive statutory requirements, 

depending on the structure of an 

individual state’s permitting or 

enforcement program (e.g., whether 

permits and enforcement orders are 

approved by a multi-member board or 

by a head of an executive agency). 

However they are addressed by the 

state, the substantive requirements of 

section 128 are necessarily included in 

EPA’s evaluation of infrastructure SIP 

submissions because section 

110(a)(2)(E)(ii) explicitly requires that 

the state satisfy the provisions of section 

128. 

As another example, EPA’s review of 

infrastructure SIP submissions with 

respect to the PSD program 

requirements in sections 110(a)(2)(C), 

(D)(i)(II), and (J) focuses upon the 

structural PSD program requirements 

contained in part C and EPA’s PSD 

regulations. Structural PSD program 

requirements include provisions 

necessary for the PSD program to 

address all regulated sources and New 

Source Review (NSR) pollutants, 

including greenhouse gases (GHGs). By 

contrast, structural PSD program 

requirements do not include provisions 

that are not required under EPA’s 

regulations at 40 CFR 51.166 but are 

merely available as an option for the 

state, such as the option to provide 

grandfathering of complete permit 

applications with respect to the 2012 

PM2.5 NAAQS. Accordingly, the latter 

optional provisions are types of 

provisions EPA considers irrelevant in 

the context of an infrastructure SIP 

action. 

For other section 110(a)(2) elements, 

however, EPA’s review of a state’s 

infrastructure SIP submission focuses 

on assuring that the state’s SIP meets 

basic structural requirements. For 

example, section 110(a)(2)(C) includes, 

inter alia, the requirement that states 

have a program to regulate minor new 

sources. Thus, EPA evaluates whether 

the state has an EPA-approved minor 

NSR program and whether the program 

addresses the pollutants relevant to that 

NAAQS. In the context of acting on an 

infrastructure SIP submission, however, 

EPA does not think it is necessary to 

conduct a review of each and every 

provision of a state’s existing minor 

source program (i.e., already in the 

existing SIP) for compliance with the 

requirements of the CAA and EPA’s 

regulations that pertain to such 

programs. 

With respect to certain other issues, 

EPA does not believe that an action on 

a state’s infrastructure SIP submission is 

necessarily the appropriate type of 

action in which to address possible 

deficiencies in a state’s existing SIP. 

These issues include: (i) existing 

provisions related to excess emissions 

from sources during periods of startup, 

shutdown, or malfunction that may be 

contrary to the CAA and EPA’s policies 

addressing such excess emissions 

(‘‘SSM’’); (ii) existing provisions related 

to ‘‘director’s variance’’ or ‘‘director’s 

discretion’’ that may be contrary to the 

CAA because they purport to allow 

revisions to SIP-approved emissions 

limits while limiting public process or 

not requiring further approval by EPA; 

and (iii) existing provisions for PSD 

programs that may be inconsistent with 

current requirements of EPA’s ‘‘Final 

NSR Improvement Rule,’’ 67 FR 80186 

(December 31, 2002), as amended by 72 

FR 32526 (June 13, 2007) (‘‘NSR 

Reform’’). Thus, EPA believes it may 

approve an infrastructure SIP 

submission without scrutinizing the 

totality of the existing SIP for such 

potentially deficient provisions and may 

approve the submission even if it is 

aware of such existing provisions.11 It is 

important to note that EPA’s approval of 

a state’s infrastructure SIP submission 

should not be construed as explicit or 

implicit re-approval of any existing 

potentially deficient provisions that 

relate to the three specific issues just 

described. 

EPA’s approach to review of 

infrastructure SIP submissions is to 

identify the CAA requirements that are 

logically applicable to that submission. 

EPA believes that this approach to the 

review of a particular infrastructure SIP 

submission is appropriate, because it 

would not be reasonable to read the 

general requirements of section 

110(a)(1) and the list of elements in 

110(a)(2) as requiring review of each 

and every provision of a state’s existing 

SIP against all requirements in the CAA 

and EPA regulations merely for 

purposes of assuring that the state in 

question has the basic structural 

elements for a functioning SIP for a new 

or revised NAAQS. Because SIPs have 

grown by accretion over the decades as 

statutory and regulatory requirements 

under the CAA have evolved, they may 

include some outmoded provisions and 

historical artifacts. These provisions, 

while not fully up to date, nevertheless 

may not pose a significant problem for 

the purposes of ‘‘implementation, 

maintenance, and enforcement’’ of a 

new or revised NAAQS when EPA 

evaluates adequacy of the infrastructure 

SIP submission. EPA believes that a 

better approach is for states and EPA to 

focus attention on those elements of 

section 110(a)(2) of the CAA most likely 

to warrant a specific SIP revision due to 

the promulgation of a new or revised 

NAAQS or other factors. 

For example, EPA’s 2013 Guidance 

gives simpler recommendations with 

respect to carbon monoxide than other 

NAAQS pollutants to meet the visibility 

requirements of section 

110(a)(2)(D)(i)(II), because carbon 

monoxide does not affect visibility. As 

a result, an infrastructure SIP 

submission for any future new or 

revised NAAQS for carbon monoxide 

need only state this fact in order to 

address the visibility prong of section 

110(a)(2)(D)(i)(II). 

With respect to element[s] C and J, 

EPA interprets the CAA to require each 

state to make an infrastructure SIP 

submission for a new or revised NAAQS 

that demonstrates that the air agency 

has a complete PSD permitting program 

meeting the current requirements for all 

regulated NSR pollutants. The 

requirements of element D(i)(II) may 

also be satisfied by demonstrating the 

air agency has a complete PSD 

permitting program correctly addressing 

all regulated NSR pollutants. Kansas has 

shown that it currently has a PSD 

program in place that covers all 

regulated NSR pollutants, including 

greenhouse gases (GHGs). 


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12For example, EPA issued a SIP call to Utah to 

address specific existing SIP deficiencies related to 

the treatment of excess emissions during SSM 

events. See ‘‘Finding of Substantial Inadequacy of 

Implementation Plan; Call for Utah State 

Implementation Plan Revisions,’’ 74 FR 21639 

(April 18, 2011). 

13EPA has used this authority to correct errors in 

past actions on SIP submissions related to PSD 

programs. See ‘‘Limitation of Approval of 

Prevention of Significant Deterioration Provisions 

Concerning Greenhouse Gas Emitting-Sources in 

State Implementation Plans; Final Rule,’’ 75 FR 

82536 (December 30, 2010). EPA has previously 

used its authority under CAA section 110(k)(6) to 

remove numerous other SIP provisions that the 

Agency determined it had approved in error. See, 

e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641 

(June 27, 1997) (corrections to American Samoa, 

Arizona, California, Hawaii, and Nevada SIPs); 69 

FR 67062 (November 16, 2004) (corrections to 

California SIP); and 74 FR 57051 (November 3, 

2009) (corrections to Arizona and Nevada SIPs). 

14See, e.g., EPA’s disapproval of a SIP submission 

from Colorado on the grounds that it would have 

included a director’s discretion provision 

inconsistent with CAA requirements, including 

section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 

(July 21, 2010) (proposed disapproval of director’s 

discretion provisions); 76 FR 4540 (January 26, 

2011) (final disapproval of such provisions). 

15The specific nonattainment area plan 

requirements of section 110(a)(2)(I) are subject to 

the timing requirements of section 172, not the 

timing requirement of section 110(a)(1). Thus, 

section 110(a)(2)(A) does not require that states 

submit regulations or emissions limits specifically 

for attaining the 2010 SO2 NAAQS. Those SIP 

provisions are due as part of each state’s attainment 

plan, and will be addressed separately from the 

requirements of section 110(a)(2)(A). In the context 

of an infrastructure SIP, EPA is not evaluating the 

existing SIP provisions for this purpose. Instead, 

EPA is only evaluating whether the state’s SIP has 

basic structural provisions for the implementation 

of the NAAQS. 

On June 23, 2014, the United States 

Supreme Court issued a decision 

addressing the application of PSD 

permitting requirements to GHG 

emissions. Utility Air Regulatory Group 

v. Environmental Protection Agency, 

134 S.Ct. 2427. The Supreme Court said 

that the EPA may not treat GHGs as an 

air pollutant for purposes of 

determining whether a source is a major 

source required to obtain a PSD permit. 

The Court also said that the EPA could 

continue to require that PSD permits, 

otherwise required based on emissions 

of pollutants other than GHGs, contain 

limitations on GHG emissions based on 

the application of Best Available 

Control Technology (BACT). In order to 

act consistently with its understanding 

of the Court’s decision pending further 

judicial action to effectuate the decision, 

the EPA is not continuing to apply EPA 

regulations that would require that SIPs 

include permitting requirements that 

the Supreme Court found 

impermissible. Specifically, EPA is not 

applying the requirement that a state’s 

SIP-approved PSD program require that 

sources obtain PSD permits when GHGs 

are the only pollutant (i) that the source 

emits or has the potential to emit above 

the major source thresholds, or (ii) for 

which there is a significant emissions 

increase and a significant net emissions 

increase from a modification (e.g. 40 

CFR 51.166(b)(48)(v)). EPA anticipates a 

need to revise Federal PSD rules in light 

of the Supreme Court opinion. In 

addition, EPA anticipates that many 

states will revise their existing SIPapproved PSD programs in light of the 

Supreme Court’s decision. The timing 

and content of subsequent EPA actions 

with respect to the EPA regulations and 

state PSD program approvals are 

expected to be informed by additional 

legal process before the United States 

Court of Appeals for the District of 

Columbia Circuit. At this juncture, EPA 

is not expecting states to have revised 

their PSD programs for purposes of 

infrastructure SIP submissions and is 

only evaluating such submissions to 

assure that the state’s program correctly 

addresses GHGs consistent with the 

Supreme Court’s decision. 

At present, EPA has determined the 

Kansas’ SIP is sufficient to satisfy 

elements C, D(i)(II), and J with respect 

to GHGs because the PSD permitting 

program previously approved by EPA 

into the SIP continues to require that 

PSD permits (otherwise required based 

on emissions of pollutants other than 

GHGs) contain limitations on GHG 

emissions based on the application of 

BACT. Although the approved Kansas 

PSD permitting program may currently 

contain provisions that are no longer 

necessary in light of the Supreme Court 

decision, this does not render the 

infrastructure SIP submission 

inadequate to satisfy elements C, 

(D)(i)(II), and J. The SIP contains the 

necessary PSD requirements at this 

time, and the application of those 

requirements is not impeded by the 

presence of other previously-approved 

provisions regarding the permitting of 

sources of GHGs that EPA does not 

consider necessary at this time in light 

of the Supreme Court decision. 

Accordingly, the Supreme Court 

decision does not affect EPA’s proposed 

approval of Kansas’ infrastructure SIP as 

to the requirements of elements C, 

D(i)(II), and J. 

Finally, EPA believes that its 

approach with respect to infrastructure 

SIP requirements is based on a 

reasonable reading of sections 110(a)(1) 

and 110(a)(2) because the CAA provides 

other avenues and mechanisms to 

address specific substantive deficiencies 

in existing SIPs. These other statutory 

tools allow EPA to take appropriately 

tailored action, depending upon the 

nature and severity of the alleged SIP 

deficiency. Section 110(k)(5) authorizes 

EPA to issue a ‘‘SIP call’’ whenever the 

Agency determines that a state’s SIP is 

substantially inadequate to attain or 

maintain the NAAQS, to mitigate 

interstate transport, or to otherwise 

comply with the CAA.12 Section 

110(k)(6) authorizes EPA to correct 

errors in past actions, such as past 

approvals of SIP submissions.13

Significantly, EPA’s determination that 

an action on a state’s infrastructure SIP 

submission is not the appropriate time 

and place to address all potential 

existing SIP deficiencies does not 

preclude EPA’s subsequent reliance on 

provisions in section 110(a)(2) as part of 

the basis for action to correct those 

deficiencies at a later time. For example, 

although it may not be appropriate to 

require a state to eliminate all existing 

inappropriate director’s discretion 

provisions in the course of acting on an 

infrastructure SIP submission, EPA 

believes that section 110(a)(2)(A) may be 

among the statutory bases that EPA 

relies upon in the course of addressing 

such deficiency in a subsequent 

action.14

IV. What is EPA’s evaluation of how the 

State addressed the relevant elements 

of sections 110(a)(1) and (2)? 

EPA Region 7 received Kansas’ 

infrastructure SIP submission for the 

2010 SO2 standard on July 15, 2013. The 

SIP submission became complete as a 

matter of law on January 15, 2014. EPA 

has reviewed Kansas’ infrastructure SIP 

submission and the applicable statutory 

and regulatory authorities and 

provisions referenced in those 

submissions or referenced in Kansas’ 

SIP. Below is EPA’s evaluation of how 

the state addressed the relevant 

elements of section 110(a)(2) for the 

2010 SO2 NAAQS. 

(A) Emission limits and other control 

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

SIPs to include enforceable emission 

limits and other control measures, 

means or techniques, schedules for 

compliance, and other related matters as 

needed to implement, maintain and 

enforce each NAAQS.15

The State of Kansas’ statutes and 

regulations authorize the Kansas 

Department of Health and Environment 

(KDHE) to regulate air quality and 

implement air quality control 

regulations. KDHE’s statutory authority 

can be found in chapter 65, article 30 of 

the Kansas Statutes Annotated (KSA), 

otherwise known as the Kansas Air 

Quality Act. KSA section 65–3003 

places the responsibility for air quality 

conservation and control of air pollution 

with the Secretary of Health and 


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16As discussed in further detail below, this 

infrastructure SIP rulemaking will not address the 

Kansas program for nonattainment area related 

provisions, since EPA considers evaluation of these 

provisions to be outside the scope of infrastructure 

SIP actions. 

Environment (‘‘Secretary’’). The 

Secretary in turn administers the Kansas 

Air Quality Act through the Division of 

Environment within KDHE. Air 

pollution is defined in KSA section 65– 

3002(c) as the presence in the outdoor 

atmosphere of one or more air 

contaminants in such quantities and 

duration as is, or tends significantly to 

be, injurious to human health or 

welfare, animal or plant life, or 

property, or would unreasonably 

interfere with the enjoyment of life or 

property, or would contribute to the 

formation of regional haze. 

KSA section 65–3005(a)(1) provides 

authority to the Secretary to adopt, 

amend and repeal rules and regulations 

implementing the Kansas Air Quality 

Act. It also gives the Secretary the 

authority to establish ambient air 

quality standards for the State of Kansas 

as a whole or for any part thereof. KSA 

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

has the authority to promulgate rules 

and regulations to ensure that Kansas is 

in compliance with the provisions of the 

Act, in furtherance of a policy to 

implement laws and regulations 

consistent with those of the Federal 

government. KSA section 65–3005(b). 

The Secretary also has the authority to 

establish emission control requirements 

as appropriate to facilitate the 

accomplishment of the purposes of the 

Kansas Air Quality Act. KSA section 

65–3010(a). 

Based upon review of the state’s 

infrastructure SIP submission for the 

2010 SO2 NAAQS, and relevant 

statutory and regulatory authorities and 

provisions referenced in the submission 

or referenced in Kansas’ SIP, EPA 

believes that the Kansas SIP adequately 

addresses the requirements of section 

110(a)(2)(A) for the 2010 SO2 NAAQS 

and is proposing to approve this 

element of the July 15, 2013, SIP 

submission. 

(B) Ambient air quality monitoring/

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

requires SIPs to include provisions to 

provide for establishment and operation 

of ambient air quality monitors, 

collection and analysis of ambient air 

quality data, and making these data 

available to EPA upon request. 

To address this element, KSA section 

65–3007 provides the enabling authority 

necessary for Kansas to fulfill the 

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

This provision gives the Secretary the 

authority to classify air contaminant 

sources which, in his or her judgment, 

may cause or contribute to air pollution. 

Furthermore, the Secretary has the 

authority to require such air 

contaminant sources to monitor 

emissions, operating parameters, 

ambient impacts of any source 

emissions, and any other parameters 

deemed necessary. The Secretary can 

also require these sources to keep 

records and make reports consistent 

with the Kansas Air Quality Act. KSA 

section 65–3007(b). 

Kansas has an air quality monitoring 

network operated by KDHE and local air 

quality agencies that collects air quality 

data that are compiled, analyzed, and 

reported to EPA. KDHE’s Web site 

contains up-to-date information about 

air quality monitoring, including a 

description of the network and 

information about the monitoring of 

SO2. See, generally, http://

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

indexMon.html. KDHE also conducts 

five-year monitoring network 

assessments, including the SO2

monitoring network, as required by 40 

CFR 58.10(d). On December 3, 2013, 

EPA approved Kansas’ 2013–2014 

Ambient Air Monitoring Network Plan. 

This plan includes, among other things, 

the location for the SO2 monitoring 

network in Kansas. Specifically, KDHE 

operates four sulfur dioxide monitors in 

the state in accordance with the sourceoriented sulfur dioxide monitoring 

requirements of 40 CFR part 58, 

appendix D, paragraph 4.4.1(a). Data 

gathered by the monitors is submitted to 

EPA’s Air Quality System, which in 

turn determines if the network site 

monitors are in compliance with the 

NAAQS. 

Within KDHE, the Bureau of Air 

implements these requirements. Along 

with its other duties, the Monitoring 

and Planning Section collects air 

monitoring data, quality assures the 

results, and reports the data. The data is 

then used to develop the appropriate 

regulatory or outreach strategies to 

reduce air pollution. 

Based upon review of the state’s 

infrastructure SIP submission for the 

2010 SO2 NAAQS, and relevant 

statutory and regulatory authorities and 

provisions referenced in the submission 

or referenced in Kansas’ SIP, EPA 

believes that the Kansas SIP adequately 

addresses the requirements of section 

110(a)(2)(B) for the 2010 SO2 NAAQS 

and is proposing to approve this 

element of the July 15, 2013, SIP 

submission. 

(C) Program for enforcement of 

control measures (PSD, New Source 

Review for nonattainment areas, and 

construction and modification of all 

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

requires states to include the following 

three elements in the SIP: (1) A program 

providing for enforcement of all SIP 

measures described in section 

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

regulation of the modification and 

construction of stationary sources as 

necessary to protect the applicable 

NAAQS (i.e., state-wide permitting of 

minor sources); and (3) a permit 

program to meet the major source 

permitting requirements of the CAA (for 

areas designated as attainment or 

unclassifiable for the NAAQS in 

question).16

(1) Enforcement of SIP Measures. 

With respect to enforcement of 

requirements of the SIP, KSA section 

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

authority to issue orders, permits and 

approvals as may be necessary to 

effectuate the purposes of the Kansas 

Air Quality Act and enforce the Act by 

all appropriate administrative and 

judicial proceedings. Pursuant to KSA 

section 65–3006, the Secretary also has 

the authority to enforce rules, 

regulations and standards to implement 

the Kansas Air Quality Act and to 

employ the professional, technical and 

other staff to effectuate the provisions of 

the Act. In addition, if the Secretary or 

the director of the Division of 

Environment finds that any person has 

violated any provision of any approval, 

permit or compliance plan or any 

provision of the Kansas Air Quality Act 

or any rule or regulation promulgated 

thereunder, he or she may issue an 

order directing the person to take such 

action as necessary to correct the 

violation. KSA section 65–3011. 

KSA section 65–3018 gives the 

Secretary or the Director of the Division 

of Environment the authority to impose 

a monetary penalty against any person 

who, among other things, either violates 

any order or permit issued under the 

Kansas Air Quality Act, or violates any 

provision of the Act or rule or regulation 

promulgated thereunder. Section 65– 

3028 provides for criminal penalties for 

knowing violations. 

(2) Minor New Source Review. Section 

110(a)(2)(C) also requires that the SIP 

include measures to regulate 

construction and modification of 

stationary sources to protect the 

NAAQS. With respect to smaller sources 

that meet the criteria listed in KAR 28– 

19–300(b) ‘‘Construction Permits and 

Approvals,’’ Kansas has a SIP-approved 

permitting program. Any person 

proposing to conduct a construction or 

modification at such a source must 

obtain approval from KDHE prior to 

commencing construction or 

modification. If KDHE determines that 


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17For a detailed discussion on EPA’s analysis of 

how Kansas meets the PSD requirements, see EPA’s 

April 17, 2013, proposed approval of Kansas’ 1997 

and 2006 PM2.5 infrastructure SIP (78 FR 22827). 

18 KAR 28–19–16k(b) provides similar 

requirements for construction permits issued in 

nonattainment areas. 

air contaminant emissions from a source 

will interfere with attainment or 

maintenance of the NAAQS, it cannot 

issue an approval to construct or modify 

that source (KAR 28–19–301(d) 

‘‘Construction Permits and Approvals; 

Application and Issuance’’). 

In this action, EPA is proposing to 

approve Kansas’ infrastructure SIP for 

the 2010 SO2 standard with respect to 

the general requirement in section 

110(a)(2)(C) to include a program in the 

SIP that regulates the modification and 

construction of any stationary source as 

necessary to assure that the NAAQS are 

achieved. In this action, EPA is not 

proposing to approve or disapprove the 

state’s existing minor NSR program to 

the extent that it is inconsistent with 

EPA’s regulations governing this 

program. EPA has maintained that the 

CAA does not require that new 

infrastructure SIP submissions correct 

any defects in existing EPA-approved 

provisions of minor NSR programs in 

order for EPA to approve the 

infrastructure SIP for element (C) (e.g., 

76 FR 41076–76 FR 41079). 

(3) Prevention of Significant 

Deterioration (PSD) permit program. 

Kansas also has a program approved by 

EPA as meeting the requirements of part 

C, relating to prevention of significant 

deterioration of air quality. In order to 

demonstrate that Kansas has met this 

sub-element, this PSD program must 

cover requirements not just for the 2010 

SO2 NAAQS, but for all other regulated 

NSR pollutants as well. 

In a previous action on June 20, 2013, 

EPA determined that Kansas has a 

program in place that meets all the PSD 

requirements related to all required 

pollutants (78 FR 37126).17 Therefore, 

Kansas has adopted all necessary 

provisions to ensure that its PSD 

program covers the requirements for the 

SO2 NAAQS and all other regulated 

NSR pollutants. 

Based upon review of the state’s 

infrastructure SIP submission for the 

2010 SO2 NAAQS, and relevant 

statutory and regulatory authorities and 

provisions referenced in the submission 

or referenced in Kansas’ SIP, EPA 

believes that the Kansas SIP adequately 

addresses the requirements of section 

110(a)(2)(C) for the 2010 SO2 NAAQS 

and is proposing to approve this 

element of the July 15, 2013, SIP 

submission. 

(D) Interstate and international 

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

includes four requirements referred to 

as prongs 1 through 4. Prongs 1 and 2 

are provided at section 110(a)(2)(D)(i)(I); 

Prongs 3 and 4 are provided at section 

110(a)(2)(D)(i)(II). Section 

110(a)(2)(D)(i)(I) requires SIPs to include 

adequate provisions prohibiting any 

source or other type of emissions 

activity in one state from contributing 

significantly to nonattainment, or 

interfering with maintenance, of any 

NAAQS in another state. Section 

110(a)(2)(D)(i)(II) requires SIPs to 

include adequate provisions prohibiting 

any source or other type of emissions 

activity in one state from interfering 

with measures required of any other 

state to prevent significant deterioration 

of air quality or to protect visibility. 

In this notice, we are not proposing to 

take any actions related to the interstate 

transport requirements of section 

110(a)(2)(D)(i)(I)—prongs 1 and 2. At 

this time, there is no SIP submission 

from Kansas relating to 110(a)(2)(D)(i)(I) 

for the 2010 SO2 NAAQS pending 

before the Agency. 

With respect to the PSD requirements 

of section 110(a)(2)(D)(i)(II)—prong 3, 

EPA notes that Kansas’ satisfaction of 

the applicable infrastructure SIP PSD 

requirements for attainment/

unclassifiable areas of the 2010 SO2

NAAQS have been detailed in the 

section addressing section 110(a)(2)(C). 

EPA also notes that the proposed action 

in that section related to PSD is 

consistent with the proposed approval 

related to PSD for section 

110(a)(2)(D)(i)(II). 

With regard to the applicable 

requirements for visibility protection of 

section 110(a)(2)(D)(i)(II)—prong 4, 

states are subject to visibility and 

regional haze program requirements 

under part C of the CAA (which 

includes sections 169A and 169B). The 

2013 Guidance states that these 

requirements can be satisfied by an 

approved SIP addressing reasonably 

attributable visibility impairment, if 

required, and an approved SIP 

addressing regional haze. 

Kansas meets this requirement 

through EPA’s final approval of Kansas’ 

regional haze plan on December 27, 

2011 (76 FR 80754). In this final 

approval, EPA determined that the 

Kansas SIP met requirements of the 

CAA, for states to prevent any future 

and remedy any existing anthropogenic 

impairment of visibility in Class I areas 

caused by emissions of air pollutants 

located over a wide geographic area. 

Therefore, EPA is proposing to fully 

approve this aspect of the submission. 

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

that the SIP insure compliance with the 

applicable requirements of sections 126 

and 115 of the CAA, relating to 

interstate and international pollution 

abatement, respectively. 

Section 126(a) of the CAA requires 

new or modified sources to notify 

neighboring states of potential impacts 

from sources within the state. The 

Kansas regulations address abatement of 

the effects of interstate pollution. For 

example, KAR 28–19–350(k)(2) 

‘‘Prevention of Significant Deterioration 

(PSD) of Air Quality’’ requires KDHE, 

prior to issuing any construction permit 

for a proposed new major source or 

major modification, to notify EPA, as 

well as: Any state or local air pollution 

control agency having jurisdiction in the 

air quality control region in which the 

new or modified installation will be 

located; the chief executives of the city 

and county where the source will be 

located; any comprehensive regional 

land use planning agency having 

jurisdiction where the source will be 

located; and any state, Federal land 

manager, or Indian governing body 

whose lands will be affected by 

emissions from the new source or 

modification.18 See also KAR 28–19–204 

‘‘General Provisions; Permit Issuance 

and Modification; Public Participation’’ 

for additional public participation 

requirements. In addition, no Kansas 

source or sources have been identified 

by EPA as having any interstate impacts 

under section 126 in any pending 

actions relating to any air pollutant. 

Section 115 of the CAA authorizes 

EPA to require a state to revise its SIP 

under certain conditions to alleviate 

international transport into another 

country. There are no final findings 

under section 115 of the CAA against 

Kansas with respect to any air pollutant. 

Thus, the state’s SIP does not need to 

include any provisions to meet the 

requirements of section 115. 

Based upon review of the state’s 

infrastructure SIP submission for the 

2010 SO2 NAAQS, and relevant 

statutory and regulatory authorities and 

provisions referenced in the submission 

or referenced in Kansas’ SIP, EPA 

believes that Kansas has the adequate 

infrastructure needed to address 

sections 110(a)(2)(D)(i)(II)—Prongs 3 

and 4 and 110 (a)(2)(D)(ii) for the 2010 

SO2 NAAQS and is proposing to 

approve this element of the July 15, 

2013, submission. 

(E) Adequate authority, resources, 

implementation, and oversight: Section 

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

for the following: (1) Necessary 

assurances that the state (and other 

entities within the state responsible for 


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implementing the SIP) will have 

adequate personnel, funding, and 

authority under state or local law to 

implement the SIP, and that there are no 

legal impediments to such 

implementation; (2) requirements that 

the state comply with the requirements 

relating to state boards, pursuant to 

section 128 of the CAA; and (3) 

necessary assurances that the state has 

responsibility for ensuring adequate 

implementation of any plan provision 

for which it relies on local governments 

or other entities to carry out that portion 

of the plan. 

(1) Section 110(a)(2)(E)(i) requires 

states to establish that they have 

adequate personnel, funding and 

authority. With respect to adequate 

authority, we have previously discussed 

Kansas’ statutory and regulatory 

authority to implement the 2010 SO2

NAAQS, primarily in the discussion of 

section 110(a)(2)(A) above. Neither 

Kansas nor EPA has identified any legal 

impediments in the state’s SIP to 

implementation of the NAAQS. 

With respect to adequate resources, 

KDHE asserts that it has adequate 

personnel to implement the SIP. The 

Kansas statutes provide the Secretary 

the authority to employ technical, 

professional and other staff to effectuate 

the purposes of the Kansas Air Quality 

Act from funds appropriated and 

available for these purposes. See KSA 

section 65–3006(b). Within KDHE, the 

Bureau of Air implements the Kansas 

Air Quality Act. This Bureau is further 

divided into the Air Compliance and 

Enforcement Section, Air Permit 

Section; the Monitoring and Planning 

Section; and the Radiation and Asbestos 

Control Section. 

With respect to funding, the Kansas 

Legislature annually approves funding 

and personnel resources for KDHE to 

implement the air program. The annual 

budget process provides a periodic 

update that enables KDHE and the local 

agencies to adjust funding and 

personnel needs. In addition, the Kansas 

statutes grant the Secretary authority to 

establish various fees for sources, to 

cover any and all parts of administering 

the provisions of the Kansas Air Quality 

Act. For example, KSA section 65– 

3008(f) grants the Secretary authority to 

fix, charge, and collect fees for 

construction approvals and permits (and 

the renewals thereof). KSA section 65– 

3024 grants the Secretary the authority 

to establish annual emissions fees. 

These emission fees, along with any 

moneys recovered by the state under the 

provisions of the Kansas Air Quality 

Act, are deposited into an air quality fee 

fund in the state treasury. Moneys in the 

air quality fee fund can only be used for 

the purpose of administering the Kansas 

Air Quality Act. 

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

Revenue funds and EPA grants under, 

for example, sections 103 and 105 of the 

Act, to fund the programs. EPA 

conducts periodic program reviews to 

ensure that the state has adequate 

resources and funding to, among other 

things, implement the SIP. 

(2) Conflict of interest provisions— 

section 128. Section 110(a)(2)(E)(ii) 

requires that each state SIP meet the 

requirements of section 128, relating to 

representation on state boards and 

conflicts of interest by members of such 

boards. Section 128(a)(1) requires that 

any board or body which approves 

permits or enforcement orders under the 

CAA must have at least a majority of 

members who represent the public 

interest and do not derive any 

‘‘significant portion’’ of their income 

from persons subject to permits and 

enforcement orders under the CAA. 

Section 128(a)(2) requires that members 

of such a board or body, or the head of 

an agency with similar powers, 

adequately disclose any potential 

conflicts of interest. 

On June 20, 2013, EPA approved 

Kansas’ SIP revision addressing the 

section 128 requirements (78 FR 37126). 

For a detailed discussion on EPA’s 

analysis of how Kansas meets the 

section 128 requirements, see EPA’s 

April 17, 2013, proposed approval of 

Kansas’ 1997 and 2006 PM2.5

infrastructure SIP (78 FR 22827). 

(3) With respect to assurances that the 

state has responsibility to implement 

the SIP adequately when it authorizes 

local or other agencies to carry out 

portions of the plan, KSA section 65– 

3005(a)(8) grants the Secretary authority 

to encourage local units of government 

to handle air pollution problems within 

their own jurisdictions and to provide 

technical and consultative assistance 

therefor. The Secretary may also enter 

into agreements with local units of 

government to administer all or part of 

the provisions of the Kansas Air Quality 

Act in the units’ respective 

jurisdictions. In fact, KSA section 65– 

3016 allows for cities and/or counties 

(or combinations thereof) to form local 

air quality conservation authorities. 

These authorities will then have the 

authority to enforce air quality rules and 

regulations adopted by the Secretary 

and adopt any additional rules, 

regulations and standards as needed to 

maintain satisfactory air quality within 

their jurisdictions. 

At the same time, the Kansas statutes 

also retain authority in the Secretary to 

carry out the provisions of the state air 

pollution control law. KSA section 65– 

3003 specifically places responsibility 

for air quality conservation and control 

of air pollution with the Secretary. The 

Secretary shall then administer the 

Kansas Air Quality Act through the 

Division of Environment. As an example 

of this retention of authority, KSA 

section 65–3016 only allows for the 

formation of local air quality 

conservation authorities with the 

approval of the Secretary. In addition, 

although these authorities can adopt 

additional air quality rules, regulations 

and standards, they may only do so if 

those rules, regulations and standards 

are in compliance with those set by the 

Secretary for that area. Currently, KDHE 

oversees the following local agencies 

that implement that Kansas Air Quality 

Act: The City of Wichita Office of 

Environmental Health, Johnson County 

Department of Health and Environment, 

and Unified Government of Wyandotte 

County–Kansas City, Kansas Public 

Health Department. 

Based upon review of the state’s 

infrastructure SIP submission for the 

2010 SO2 NAAQS and relevant statutory 

and regulatory authorities and 

provisions referenced in the submission 

or referenced in Kansas’ SIP, EPA 

believes that Kansas has the adequate 

infrastructure needed to address section 

110(a)(2)(E) for the 2010 SO2 NAAQS 

and is proposing to approve this 

element of the July 15, 2013, 

submission. 

(F) Stationary source monitoring 

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

states to establish a system to monitor 

emissions from stationary sources and 

to submit periodic emission reports. 

Each SIP shall require the installation, 

maintenance, and replacement of 

equipment, and the implementation of 

other necessary steps, by owners or 

operators of stationary sources, to 

monitor emissions from such sources. 

The SIP shall also require periodic 

reports on the nature and amounts of 

emissions and emissions-related data 

from such sources, and requires that the 

state correlate the source reports with 

emission limitations or standards 

established under the CAA. These 

reports must be made available for 

public inspection at reasonable times. 

To address this element, KSA section 

65–3007 gives the Secretary the 

authority to classify air contaminant 

sources which, in his or her judgment, 

may cause or contribute to air pollution. 

The Secretary shall require air 

contaminant emission sources to 

monitor emissions, operating 

parameters, ambient impact of any 

source emissions, and any other 

parameters deemed necessary. 


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Furthermore, the Secretary may require 

these emissions sources to keep records 

and make reports consistent with the 

purposes of the Kansas Air Quality Act. 

In addition, KAR 28–19–12(A) 

‘‘Measurement of Emissions’’ states that 

KDHE may require any person 

responsible for the operation of an 

emissions source to make or have tests 

made to determine the rate of 

contaminant emissions from the source 

whenever it has reason to believe that 

existing emissions exceed limitations 

specified in the Kansas air quality 

regulations. At the same time, KDHE 

may also conduct its own tests of 

emissions from any source. KAR 28–19– 

12(B). The Kansas regulations also 

require that all Class I operating permits 

include requirements for monitoring of 

emissions (KAR 28–19–512(a)(9) ‘‘Class 

I Operating Permits; Permit Content’’). 

Kansas makes all monitoring reports 

(as well as compliance plans and 

compliance certifications) submitted as 

part of a construction permit or Class I 

or Class II permit application publicly 

available. See KSA section 65–3015(a); 

KAR 28–19–204(c)(6) ‘‘General 

Provisions; Permit Issuance and 

Modification; Public Participation.’’ 

KDHE uses this information to track 

progress towards maintaining the 

NAAQS, developing control and 

maintenance strategies, identifying 

sources and general emission levels, and 

determining compliance with emission 

regulations and additional EPA 

requirements. Although the Kansas 

statutes allow a person to request that 

records or information reported to 

KDHE be regarded and treated as 

confidential on the grounds that it 

constitutes trade secrets, emission data 

is specifically excluded from this 

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

Based upon review of the state’s 

infrastructure SIP submission for the 

2010 SO2 NAAQS, and relevant 

statutory and regulatory authorities and 

provisions referenced in the submission 

or referenced in Kansas’ SIP, EPA 

believes that Kansas has the adequate 

infrastructure needed to address section 

110(a)(2)(F) for the 2010 SO2 NAAQS 

and is proposing to approve this 

element of the July 15, 2013, 

submission. 

(G) Emergency authority: Section 

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

authority to address activities causing 

imminent and substantial endangerment 

to public health or welfare or the 

environment (comparable to the 

authorities provided in section 303 of 

the CAA), and to include contingency 

plans to implement such authorities as 

necessary. 

KSA section 65–3012(a) states that 

whenever the Secretary receives 

evidence that emissions from an air 

pollution source or combination of 

sources presents an imminent and 

substantial endangerment to public 

health or welfare or to the environment, 

he or she may issue a temporary order 

directing the owner or operator, or both, 

to take such steps as necessary to 

prevent the act or eliminate the practice. 

Upon issuance of this temporary order, 

the Secretary may then commence an 

action in the district court to enjoin 

these acts or practices. 

KAR 28–19–56 ‘‘Episode Criteria’’ 

allows the Secretary to proclaim an air 

pollution alert, air pollution warning, or 

air pollution emergency whenever he or 

she determines that the accumulation of 

air contaminants at any sampling 

location has attained levels which 

could, if such levels are sustained or 

exceeded, threaten the public health. 

KAR 28–19–57 ‘‘Emission Reduction 

Requirements’’ imposes restrictions on 

emission sources in the event one of 

these three air pollution episode 

statuses is declared. 

Based upon review of the state’s 

infrastructure SIP submissions for the 

2010 SO2 NAAQS, and relevant 

statutory and regulatory authorities and 

provisions referenced in those 

submissions or referenced in Kansas’ 

SIP, EPA believes that the Kansas SIP 

adequately addresses section 

110(a)(2)(G) for the 2010 SO2 NAAQS 

and is proposing to approve this 

element of the July 15, 2013, 

submission. 

(H) Future SIP revisions: Section 

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

authority to revise their SIPs in response 

to changes in the NAAQS, availability of 

improved methods for attaining the 

NAAQS, or in response to an EPA 

finding that the SIP is substantially 

inadequate to attain the NAAQS. 

KSA section 65–3005(b) specifically 

states that it is the policy of the state of 

Kansas to regulate the air quality of the 

state and implement laws and 

regulations that are applied equally and 

uniformly throughout the state and 

consistent with that of the Federal 

government. Therefore, the Secretary 

has the authority to promulgate rules 

and regulations to ensure that Kansas is 

in compliance with the provisions of the 

Federal CAA. KSA 65–3005(b)(1). 

As discussed previously, KSA section 

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

Secretary to adopt, amend and repeal 

rules and regulations implementing and 

consistent with the Kansas Air Quality 

Act. The Secretary also has the authority 

to establish ambient air quality 

standards for the state of Kansas or any 

part thereof. KSA section 65– 

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

Secretary has the authority to revise 

rules as necessary to respond to any 

necessary changes in the NAAQS. 

Based upon review of the state’s 

infrastructure SIP submission for the 

2010 SO2 NAAQS, and relevant 

statutory and regulatory authorities and 

provisions referenced in the submission 

or referenced in Kansas’ SIP, EPA 

believes that Kansas has adequate 

authority to address section 110(a)(2)(H) 

for the 2010 SO2 NAAQS and is 

proposing to approve this element of the 

July 15, 2013, submission. 

(I) Nonattainment areas: Section 

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

a plan or plan revision for areas 

designated as nonattainment areas, 

states must meet applicable 

requirements of part D of the CAA, 

relating to SIP requirements for 

designated nonattainment areas. 

As noted earlier, EPA does not expect 

infrastructure SIP submissions to 

address subsection (I). The specific SIP 

submissions for designated 

nonattainment areas, as required under 

CAA title I, part D, are subject to 

different submission schedules than 

those for section 110 infrastructure 

elements. Instead, EPA will take action 

on part D attainment plan SIP 

submissions through a separate 

rulemaking governed by the 

requirements for nonattainment areas, 

as described in part D. 

(J) Consultation with government 

officials, public notification, PSD and 

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

requires SIPs to meet the applicable 

requirements of the following CAA 

provisions: (1) Section 121, relating to 

interagency consultation regarding 

certain CAA requirements; (2) section 

127, relating to public notification of 

NAAQS exceedances and related issues; 

and (3) part C of the CAA, relating to 

prevention of significant deterioration of 

air quality and visibility protection. 

(1) With respect to interagency 

consultation, the SIP should provide a 

process for consultation with generalpurpose local governments, designated 

organizations of elected officials of local 

governments, and any Federal Land 

Manager having authority over Federal 

land to which the SIP applies. KSA 

section 65–3005(a)(14) grants the 

Secretary the authority to advise, 

consult and cooperate with other 

agencies of the state, local governments, 

other states, interstate and interlocal 

agencies, and the Federal government. 

Furthermore, as noted earlier in the 

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

Kansas’ regulations require that 

whenever it receives a construction 


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permit application for a new source or 

a modification, KDHE must notify state 

and local air pollution control agencies, 

as well as regional land use planning 

agencies and any state, Federal land 

manager, or Indian governing body 

whose lands will be affected by 

emissions from the new source or 

modification. See KAR 28–19–350(k)(2) 

‘‘Prevention of Significant Deterioration 

(PSD) of Air Quality.’’ 

(2) With respect to the requirements 

for public notification in section 127, 

the infrastructure SIP should provide 

citations to regulations in the SIP 

requiring the air agency to regularly 

notify the public of instances or areas in 

which any NAAQS are exceeded; advise 

the public of the health hazard 

associated with such exceedances; and 

enhance public awareness of measures 

that can prevent such exceedances and 

of ways in which the public can 

participate in the regulatory and other 

efforts to improve air quality. 

As discussed previously with element 

(G), KAR 28–19–56 ‘‘Episode Criteria’’ 

contains provisions that allow the 

Secretary to proclaim an air pollution 

alert, air pollution warning, or air 

pollution emergency status whenever he 

or she determines that the accumulation 

of air contaminants at any sampling 

location has attained levels which 

could, if such levels are sustained or 

exceeded, threaten the public health. 

Any of these emergency situations can 

also be declared by the Secretary even 

in the absence of issuance of a high air 

pollution potential advisory or 

equivalent advisory from a local 

weather bureau meteorologist, if 

deemed necessary to protect the public 

health. In the event of such an 

emergency situation, public notification 

will occur through local weather 

bureaus. 

In addition, information regarding air 

pollution and related issues is provided 

on a KDHE Web site, http://

www.kdheks.gov/bar/. This information 

includes air quality data, information 

regarding the NAAQS, health effects of 

poor air quality, and links to the Kansas 

Air Quality Monitoring Network. KDHE 

also has an ‘‘Outreach and Education’’ 

Web page (http://www.kdheks.gov/bar/

air_outreach/air_quality_edu.htm) with 

information on how individuals can 

take measures to reduce emissions and 

improve air quality in daily activities. 

(3) With respect to the applicable 

requirements of part C of the CAA, 

relating to PSD of air quality and 

visibility protection, as noted in above 

under element (C), the Kansas SIP meets 

the PSD requirements, incorporating the 

Federal rule by reference. With respect 

to the visibility component of section 

110(a)(2)(J), EPA recognizes that states 

are subject to visibility and regional 

haze program requirements under part C 

of the CAA. However, when EPA 

establishes or revises a NAAQS, these 

visibility and regional haze 

requirements under part C do not 

change. EPA believes that there are no 

new visibility protection requirements 

under part C as a result of a revised 

NAAQS. Therefore, there are no newly 

applicable visibility protection 

obligations pursuant to element J after 

the promulgation of a new or revised 

NAAQS. 

Nevertheless, as noted above in 

section D, EPA has already approved 

Kansas’ Regional Haze Plan and 

determined that it met the CAA 

requirements for preventing future and 

remedying existing impairment of 

visibility caused by air pollutants. 

Based upon review of the state’s 

infrastructure SIP submission for the 

2010 SO2 NAAQS, and relevant 

statutory and regulatory authorities and 

provisions referenced in the submission 

or referenced in Kansas’ SIP, EPA 

believes that Kansas has met the 

applicable requirements of section 

110(a)(2)(J) for the 2010 SO2 NAAQS in 

the state and is therefore proposing to 

approve this element of the July 15, 

2013, submission. 

(K) Air quality and modeling/data: 

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

provide for performing air quality 

modeling, as prescribed by EPA, to 

predict the effects on ambient air quality 

of any emissions of any NAAQS 

pollutant, and for submission of such 

data to EPA upon request. 

Kansas has authority to conduct air 

quality modeling and report the results 

of such modeling to EPA. KSA section 

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

authority to encourage and conduct 

studies, investigations and research 

relating to air contamination and air 

pollution and their causes, effects, 

prevention, abatement and control. As 

an example of regulatory authority to 

perform modeling for purposes of 

determining NAAQS compliance, the 

regulations at KAR 28–19–350 

‘‘Prevention of Significant Deterioration 

(PSD) of Air Quality’’ incorporate EPA 

modeling guidance in 40 CFR part 51, 

appendix W for the purposes of 

demonstrating compliance or noncompliance with a NAAQS. 

The Kansas statutes and regulations 

also give KDHE the authority to require 

that modeling data be submitted for 

analysis. KSA section 65–3007(b) grants 

the Secretary the authority to require air 

contaminant emission sources to 

monitor emissions, operating 

parameters, ambient impact of any 

source emissions or any other 

parameters deemed necessary. The 

Secretary may also require these sources 

to keep records and make reports 

consistent with the purposes of the 

Kansas Air Quality Act. These reports 

could include information as may be 

required by the Secretary concerning the 

location, size, and height of 

contaminant outlets, processes 

employed, fuels used, and the nature 

and time periods or duration of 

emissions, and such information as is 

relevant to air pollution and available or 

reasonably capable of being assembled. 

KSA section 65–3007(c). 

Based upon review of the state’s 

infrastructure SIP submission for the 

2010 SO2 NAAQS, and relevant 

statutory and regulatory authorities and 

provisions referenced in the submission 

or referenced in Kansas’ SIP, EPA 

believes that Kansas has the adequate 

infrastructure needed to address section 

110(a)(2)(K) for the 2010 SO2 NAAQS 

and is proposing to approve this 

element of the July 15, 2013, 

submission. 

(L) Permitting Fees: Section 

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

each major stationary source to pay 

permitting fees to the permitting 

authority, as a condition of any permit 

required under the CAA, to cover the 

cost of reviewing and acting upon any 

application for such a permit, and, if the 

permit is issued, the costs of 

implementing and enforcing the terms 

of the permit. The fee requirement 

applies until a fee program established 

by the state pursuant to Title V of the 

CAA, relating to operating permits, is 

approved by EPA. 

KSA section 65–3008(f) allows the 

Secretary to fix, charge, and collect fees 

for approvals and permits (and the 

renewals thereof). KSA section 65–3024 

grants the Secretary the authority to 

establish annual emissions fees. Fees 

from the construction permits and 

approvals are deposited into the Kansas 

state treasury and credited to the state 

general fund. Emissions fees are 

deposited into an air quality fee fund in 

the Kansas state treasury. Moneys in the 

air quality fee fund can only be used for 

the purpose of administering the Kansas 

Air Quality Act. 

Kansas’ Title V program, found at 

KAR 28–19–500 to 28–19–564, was 

approved by EPA on January 30, 1996 

(61 FR 2938). EPA reviews the Kansas 

Title V program, including Title V fee 

structure, separately from this proposed 

action. Because the Title V program and 

associated fees legally are not part of the 

SIP, the infrastructure SIP action we are 

proposing today does not preclude EPA 


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from taking future action regarding 

Kansas’ Title V program. 

Based upon review of the state’s 

infrastructure SIP submission for the 

2010 SO2 NAAQS, and relevant 

statutory and regulatory authorities and 

provisions referenced in the submission 

or referenced in Kansas’ SIP, EPA 

believes that the requirements of section 

110(a)(2)(L) for the 2010 SO2 NAAQS 

are met and is proposing to approve this 

element of the July 15, 2013, 

submission. 

(M) Consultation/participation by 

affected local entities: Section 

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

consultation and participation by local 

political subdivisions affected by the 

SIP. 

KSA section 65–3005(a)(8)(A) gives 

the Secretary the authority to encourage 

local units of government to handle air 

pollution problems within their 

respective jurisdictions and on a 

cooperative basis and to provide 

technical and consultative assistance 

therefor. The Secretary may also enter 

into agreements with local units of 

government to administer all or part of 

the provisions on the Kansas Air 

Quality Act in the units’ respective 

jurisdiction. The Secretary also has the 

authority to advise, consult, and 

cooperate with local governments. KSA 

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

enter into contracts and agreements 

with local governments as is necessary 

to accomplish the goals of the Kansas 

Air Quality Act. KSA section 65– 

3005(a)(16). 

Currently, KDHE’s Bureau of Air has 

signed state and/or local agreements 

with the Department of Air Quality from 

the Unified Government of Wyandotte 

County—Kansas City, Kansas; the 

Wichita Office of Environmental Health; 

the Johnson County Department of 

Health and Environment; and the MidAmerica Regional Council. These 

agreements establish formal 

partnerships between the Bureau of Air 

and these local agencies to work 

together to develop and annually update 

strategic goals, objectives and strategies 

for reducing emissions and improving 

air quality. 

In addition, as previously noted in the 

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

Kansas’ statutes and regulations require 

that KDHE consult with local political 

subdivisions for the purposes of 

carrying out its air pollution control 

responsibilities. 

Based upon review of the state’s 

infrastructure SIP submission for the 

2010 SO2 NAAQS, and relevant 

statutory and regulatory authorities and 

provisions referenced in the submission 

or referenced in Kansas’ SIP, EPA 

believes that Kansas has the adequate 

infrastructure needed to address section 

110(a)(2)(M) for the 2010 SO2 NAAQS 

and is proposing to approve this 

element of the July 15, 2013, 

submission. 

V. What action is EPA proposing? 

EPA is proposing to approve the 

infrastructure SIP submissions from 

Kansas which address the requirements 

of CAA sections 110(a)(1) and (2) as 

applicable to the 2010 SO2 NAAQS. 

Specifically, EPA is proposing to 

approve the following infrastructure 

elements, or portions thereof: 

110(a)(2)(A), (B), (C), (D)(i)(II), (D)(ii), 

(E), (F), (G), (H), (J), (K), (L), and (M). As 

discussed in each applicable section of 

this rulemaking, EPA is not proposing 

action on section 110(a)(2)(D)(i)(I), and 

section 110(a)(2)(I)—Nonattainment 

Area Plan or Plan Revisions Under Part 

D. 

Based upon review of the state’s 

infrastructure SIP submissions and 

relevant statutory and regulatory 

authorities and provisions referenced in 

the submission or referenced in Kansas’ 

SIP, EPA believes that Kansas has the 

infrastructure to address all applicable 

required elements of sections 110(a)(1) 

and (2) (except otherwise noted) to 

ensure that the 2010 SO2 NAAQS are 

implemented in the state. 

We are hereby soliciting comment on 

this proposed action. Final rulemaking 

will occur after consideration of any 

comments. 

VI. Statutory and Executive Order 

Review 

In this rule, EPA is proposing to 

include in a final EPA rule regulatory 

text that includes incorporation by 

reference. In accordance with 

requirements of 1 CFR 51.5, EPA is 

proposing to incorporate by reference 

the EPA approved Kansas 

Nonregulatory Provision for Section 

110(a)(2) Infrastructure Requirements 

for the 2010 SO2 NAAQS described in 

the proposed amendments to 40 CFR 

part 52 set forth below. EPA has made, 

and will continue to make, these 

documents generally available 

electronically through 

www.regulations.gov and/or in hard 

copy at the appropriate EPA office (see 

the ADDRESSES section of this preamble 

for more information). 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable Federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely approves state law as meeting 

Federal requirements and does not 

impose additional requirements beyond 

those imposed by state law. For that 

reason, this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ under the terms of Executive 

Order 12866 (58 FR 51735, October 4, 

1993) and is therefore not subject to 

review under Executive Orders 12866 

and 13563 (76 FR 3821, January 21, 

2011). 

• does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq.); 

• does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• is not subject to requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

The SIP is not approved to apply on 

any Indian reservation land or in any 

other area where EPA or an Indian tribe 

has demonstrated that a tribe has 

jurisdiction. In those areas of Indian 

country, the rule does not have tribal 

implications and will not impose 

substantial direct costs on tribal 

governments or preempt tribal law as 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000). 

Statutory Authority 

The statutory authority for this action 

is provided by section 110 of the CAA, 

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


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List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Sulfur Dioxide, Reporting and 

recordkeeping requirements. 

Dated: February 24, 2015. 

Karl Brooks, 

Regional Administrator, Region 7. 

For the reasons stated in the 

preamble, the Environmental Protection 

Agency proposes to amend 40 CFR part 

52 as set forth below: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 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 § 52.870(e) the table is amended 

by adding entry (40) in numerical order 

to read as follows: 

§ 52.870 Identification of plan. 

* * * * * 

(e) * * * 

EPA-APPROVED KANSAS NONREGULATORY PROVISIONS

Name of nonregulatory 

SIP provision 

Applicable geographic 

area or Nonattainment 

area 

State submittal date EPA Approval date Explanation 

*******

(40) Section 110(a)(2) Infrastructure Requirements for the 2010 

SO2 NAAQS.

Statewide ...................... 3/19/2013 3/6/2015, [Insert Federal Register citation].This action addresses the following CAA elements 110(a)(2)(A), (B), (C), (D)(i)(II), (D)(ii), 

(E), (F), (G), (H), (J), (K), (L), and (M). 

[FR Doc. 2015–05328 Filed 3–5–15; 08:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Parts 1, 2, 15, 90, and 95 

[ET Docket Nos. 15–26, 11–90, 10–28, RM– 

11555, RM–11666, and WT Docket No. 11– 

202; FCC 15–16] 

Operation of Radar Systems in the 76– 

81 GHz Band 

AGENCY: Federal Communications 

Commission. 

ACTION: Proposed rule. 

SUMMARY: In this document, the Federal 

Communications Commission 

(Commission) proposes to authorize 

radar applications in the 76–81 GHz 

band. The Commission seeks to develop 

a flexible and streamlined regulatory 

framework that will encourage efficient, 

innovative uses of the spectrum and to 

allow various services to operate on an 

interference-protected basis. In doing so, 

it further seeks to adopt service rules 

that will allow for the deployment of the 

various radar applications in this band, 

both within and outside the U.S. The 

Commission takes this action in 

response to a petition for rulemaking 

filed by Robert Bosch, LLC (Bosch) and 

two petitions for reconsideration of the 

2012 Vehicular Radar R&O. 

DATES: Comments must be filed on or 

before April 6, 2015, and reply 

comments must be filed on or before 

April 20, 2015. 

FOR FURTHER INFORMATION CONTACT: 

Aamer Zain, Office of Engineering and 

Technology, (202) 418–2437, email: 

aamer.zain@fcc.gov, TTY (202) 418– 

2989. 

ADDRESSES: You may submit comments, 

identified by ET Docket No. 15–26, by 

any of the following methods: 

D Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

D Federal Communications 

Commission’s Web site: http://

www.fcc.gov/cgb/ecfs/. Follow the 

instructions for submitting comments. 

D People with Disabilities: Contact the 

FCC to request reasonable 

accommodations (accessible format 

documents, sign language interpreters, 

CART, etc.) by email: FCC504@fcc.gov 

or phone: 202–418–0530 or TTY: 202– 

418–0432. 

For detailed instructions for submitting 

comments and additional information 

on the rulemaking process, see the 

SUPPLEMENTARY INFORMATION section of 

this document. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Notice of 

Proposed Rulemaking and 

Reconsideration Order, ET Docket No. 

15–26, RM–11555, RM–11666, ET 

Docket Nos. 11–90, 10–28 and WT 

Docket No. 11–202; FCC 15–16, adopted 

February 3, 2015, and released February 

5, 2015. The full text of this document 

is available for inspection and copying 

during normal business hours in the 

FCC Reference Center (Room CY–A257), 

445 12th Street SW., Washington, DC 

20554. 

Pursuant to §§ 1.415 and 1.419 of the 

Commission’s rules, 47 CFR 1.415, 

1.419, interested parties may file 

comments and reply comments on or 

before the dates indicated on the first 

page of this document. Comments may 

be filed using the Commission’s 

Electronic Comment Filing System 

(ECFS). See Electronic Filing of 

Documents in Rulemaking Proceedings, 

63 FR 24121 (1998). 

D Electronic Filers: Comments may be 

filed electronically using the Internet by 

accessing the ECFS: http://

fjallfoss.fcc.gov/ecfs2/. 

D Paper Filers: Parties who choose to 

file by paper must file an original and 

one copy of each filing. If more than one 

docket or rulemaking number appears in 

the caption of this proceeding, filers 

must submit two additional copies for 

each additional docket or rulemaking 

number. 

Filings can be sent by hand or 

messenger delivery, by commercial 

overnight courier, or by first-class or 

overnight U.S. Postal Service mail. All 

filings must be addressed to the 

Commission’s Secretary, Office of the 

Secretary, Federal Communications 

Commission. 

D All hand-delivered or messengerdelivered paper filings for the 

Commission’s Secretary must be 

delivered to FCC Headquarters at 445 

12th St. SW., Room TW–A325, 

Washington, DC 20554. The filing hours 

are 8:00 a.m. to 7:00 p.m. All hand 

deliveries must be held together with 

rubber bands or fasteners. Any 

envelopes and boxes must be disposed 

of before entering the building. 


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