```

[Federal Register Volume 79, Number 167 (Thursday, August 28, 2014)]
[Proposed Rules]
[Pages 51277-51287]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-20513]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R07-OAR-2014-0500; FRL-9915-90-Region 7]

Approval and Promulgation of Implementation Plans; State of 
Kansas; Infrastructure SIP Requirements for the 2010 Nitrogen Dioxide 
National Ambient Air Quality Standard

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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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 Nitrogen Dioxide (NO2). Section 110 
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 September 29, 2014.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R07-
OAR-2014-0500, 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-
2014-0500. 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 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 February 9, 2010, EPA established a new 1-hour primary 
NO2 NAAQS (hereafter the 2010 NO2 NAAQS) at a 
level of 100 parts per billion (ppb), based on the 3-year average of 
the 98th percentile of the yearly distribution of 1-hour daily maximum 
concentrations. (75 FR 6473)
    For the 2010 NO2 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 have to review and 
revise, as appropriate, their existing SIPs to ensure that the SIPs are 
adequate to address the 2010 NO2 NAAQS. To assist

[[Page 51278]]

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 
NO2 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.
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    \1\ Stephen 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.
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III. What is EPA's approach to the review of infrastructure SIP 
submissions?

    EPA is acting upon the March 19, 2013, and May 9, 2013, SIP 
submissions from Kansas that address the infrastructure requirements of 
CAA sections 110(a)(1) and 110(a)(2) for the 2010 NO2 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's 
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.
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    \2\ For 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.
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    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, while 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\ 
Section 110(a)(2)(I) 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 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.
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    \3\ See, 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)).
    \4\ EPA 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.
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    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\

[[Page 51279]]

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\
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    \5\ See, 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).
    \6\ On 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.
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    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, 
for example because 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\
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    \7\ For 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.
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    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 
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.\9\ The guidance also 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.
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    \8\ EPA 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\ EPA'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 D.C. 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 SCt. 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.
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    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,

[[Page 51280]]

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.\10\ 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.
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    \10\ By 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.
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    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).
    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.\11\ Section 
110(k)(6) authorizes EPA to correct errors in past actions, such as 
past approvals of SIP submissions.\12\ 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.\13\
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    \11\ For 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).
    \12\ EPA 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).
    \13\ See, 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).
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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 NO2 standard on March 19, 2013,

[[Page 51281]]

with a supplemental revision May 9, 2013. The SIP submissions became 
complete as a matter of law on September 19, 2013. EPA has reviewed 
Kansas' infrastructure SIP submissions 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 
NO2 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.\14\
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    \14\ The 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 
NO2 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.
---------------------------------------------------------------------------

    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 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 submissions for 
the 2010 NO2 NAAQS, and relevant statutory and regulatory 
authorities and provisions referenced in the submissions or referenced 
in Kansas' SIP, EPA believes that the Kansas SIP adequately addresses 
the requirements of section 110(a)(2)(A) for the 2010 NO2 
NAAQS and is proposing to approve this element of the March 19, 2013, 
and May 9, 2013, SIP submissions.
    (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 
NO2. See, generally, http://www.kdheks.gov/bar/air-monitor/indexMon.html. KDHE also conducts five-year monitoring network 
assessments, including the NO2 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 NO2 monitoring 
network in Kansas. Specifically, KDHE operates four nitrogen dioxide 
monitors in the state in accordance with the source-oriented nitrogen 
dioxide monitoring requirements of 40 CFR part 58, appendix D, 
paragraph 4.3. 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 submissions for 
the 2010 NO2 NAAQS, and relevant statutory and regulatory 
authorities and provisions referenced in the submissions or referenced 
in Kansas' SIP, EPA believes that the Kansas SIP adequately addresses 
the requirements of section 110(a)(2)(B) for the 2010 NO2 
NAAQS and is proposing to approve this element of the March 19, 2013, 
and May 9, 2013, SIP submissions.
    (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).\15\
---------------------------------------------------------------------------

    \15\ As 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.
---------------------------------------------------------------------------

    (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

[[Page 51282]]

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 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 NO2 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 41076-41079).
    (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 
NO2 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 other required pollutants (78 FR 37126). Therefore, Kansas has 
adopted all necessary provisions to ensure that its PSD program covers 
the requirements for the NO2 NAAQS and all other regulated 
NSR pollutants.
    Based upon review of the state's infrastructure SIP submissions for 
the 2010 NO2 NAAQS, and relevant statutory and regulatory 
authorities and provisions referenced in the submissions or referenced 
in Kansas' SIP, EPA believes that the Kansas SIP adequately addresses 
the requirements of section 110(a)(2)(C) for the 2010 NO2 
NAAQS and is proposing to approve this element of the March 19, 2013, 
and May 9, 2013, SIP submissions.
    (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.
    With respect to section 110(a)(2)(D)(i)(I)--prongs 1 and 2, Kansas' 
SIP contain provisions to address these requirements. Kansas' 
submissions provide an analysis that demonstrates the declining 
contribution of the State's NO2 emissions. The submissions 
also analyze monitored occurrences of NO2 emissions in the 
states surrounding Kansas and concluded based on modeling and 
prevailing wind patterns that those occurrences did not originate from 
Kansas, or were very unlikely to originate from Kansas. See Kansas' 
submission, at pgs. 8-10. Based on that, Kansas believes that emissions 
of NO2 from Kansas sources are not significantly 
contributing to nonattainment or interfering with maintenance in a 
downwind state.
    On February 17, 2012 (77 FR 9532), EPA promulgated a rule that 
established air quality designations for all areas in the country for 
the 2010 NO2 NAAQS based on air quality monitoring data for 
the period 2008-2010. Based upon that data, EPA determined that no area 
of the country is violating the 2010 NO2 NAAQS. Furthermore, 
the current network of monitors in Kansas indicates that NO2 
design values are below the standard.
    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 NO2 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.

[[Page 51283]]

    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.\16\ 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.
---------------------------------------------------------------------------

    \16\ KAR 28-19-16k(b) provides similar requirements for 
construction permits issued in nonattainment areas.
---------------------------------------------------------------------------

    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 submissions for 
the 2010 NO2 NAAQS, and relevant statutory and regulatory 
authorities and provisions referenced in the submissions or referenced 
in Kansas' SIP, EPA believes that Kansas has the adequate 
infrastructure needed to address section 110(a)(2)(D) for the 2010 
NO2 NAAQS and is proposing to approve this element of the 
March 19, 2013, and May 9, 2013, submissions.
    (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 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 NO2 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 non-Title 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

[[Page 51284]]

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 submissions for 
the 2010 NO2 NAAQS and relevant statutory and regulatory 
authorities and provisions referenced in the submissions or referenced 
in Kansas' SIP, EPA believes that Kansas has the adequate 
infrastructure needed to address section 110(a)(2)(E) for the 2010 
NO2 NAAQS and is proposing to approve this element of the 
March 19, 2013, and May 9, 2013, submissions.
    (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. 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 submissions for 
the 2010 NO2 NAAQS, and relevant statutory and regulatory 
authorities and provisions referenced in the submissions or referenced 
in Kansas' SIP, EPA believes that Kansas has the adequate 
infrastructure needed to address section 110(a)(2)(F) for the 2010 
NO2 NAAQS and is proposing to approve this element of the 
March 19, 2013, and May 9, 2013, submissions.
    (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 NO2 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 NO2 NAAQS and is 
proposing to approve this element of the March 19, 2013, and May 9, 
2013, submissions.
    (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

[[Page 51285]]

rules as necessary to respond to any necessary changes in the NAAQS.
    Based upon review of the state's infrastructure SIP submissions for 
the 2010 NO2 NAAQS, and relevant statutory and regulatory 
authorities and provisions referenced in the submissions or referenced 
in Kansas' SIP, EPA believes that Kansas has adequate authority to 
address section 110(a)(2)(H) for the 2010 NO2 NAAQS and is 
proposing to approve this element of the March 19, 2013, and May 19, 
2013, submissions.
    (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 general-purpose 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 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 
Critera'' 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/airoutreach/
airqualityedu.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 submissions for 
the 2010 NO2 NAAQS, and relevant statutory and regulatory 
authorities and provisions referenced in the submissions or referenced 
in Kansas' SIP, EPA believes that Kansas has met the applicable 
requirements of section 110(a)(2)(J) for the 2010 NO2 NAAQS 
in the state and is therefore proposing to approve this element of the 
March 19, 2013, and May 9, 2013, submissions.
    (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 non-compliance 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

[[Page 51286]]

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 submissions for 
the 2010 NO2 NAAQS, and relevant statutory and regulatory 
authorities and provisions referenced in the submissions or referenced 
in Kansas' SIP, EPA believes that Kansas has the adequate 
infrastructure needed to address section 110(a)(2)(K) for the 2010 
NO2 NAAQS and is proposing to approve this element of the 
March 19, 2013, and May 9, 2013, submissions.
    (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 from taking future action 
regarding Kansas' Title V program.
    Based upon review of the state's infrastructure SIP submissions for 
the 2010 NO2 NAAQS, and relevant statutory and regulatory 
authorities and provisions referenced in the submissions or referenced 
in Kansas' SIP, EPA believes that the requirements of section 
110(a)(2)(L) for the 2010 NO2 NAAQS are met and is proposing 
to approve this element of the March 13, 2013, and May 9, 2013, 
submissions.
    (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 Mid-America 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 submissions for 
the 2010 NO2 NAAQS, and relevant statutory and regulatory 
authorities and provisions referenced in the submissions or referenced 
in Kansas' SIP, EPA believes that Kansas has the adequate 
infrastructure needed to address section 110(a)(2)(M) for the 2010 
NO2 NAAQS and is proposing to approve this element of the 
March 19, 2013, and May 9, 2013, submissions.

V. What action is EPA proposing?

    EPA is proposing to approve the infrastructure SIP submissions from 
Kansas which addresses the requirements of CAA sections 110(a)(1) and 
(2) as applicable to the 2010 NO2 NAAQS. Specifically, EPA 
is proposing to approve the following infrastructure elements, or 
portions thereof: 110(a)(2)(A), (B), (C), (D), (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)(I)--
Nonattainment Area Plan or Plan Revisions Under Part D and on the 
visibility protection portion of section 110(a)(2)(J).
    Based upon review of the state's infrastructure SIP submissions and 
relevant statutory and regulatory authorities and provisions referenced 
in those submissions 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 NO2 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

    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

[[Page 51287]]

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).
    In addition, this rule does not have Tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

Statutory Authority

    The statutory authority for this action is provided by section 110 
of the CAA, as amended (42 U.S.C. 7410).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen Dioxide, Reporting and 
recordkeeping requirements.

    Dated: August 15, 2014.
Karl Brooks,
Regional Administrator, Region 7.
[FR Doc. 2014-20513 Filed 8-27-14; 8:45 am]
BILLING CODE 6560-50-P
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