[Federal Register Volume 79, Number 136 (Wednesday, July 16, 2014)]
[Proposed Rules]
[Pages 41476-41486]
[FR Doc No: 2014-16750]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R07-OAR-2014-0271; FRL-9913-77-Region 7]

Approval and Promulgation of Implementation Plans; State of
Kansas; Infrastructure SIP Requirements for the 2008 Lead 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 2008 National Ambient Air Quality
Standards (NAAQS) for Lead (Pb), 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 August 15, 2014.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R07-
OAR-2014-0271, by one of the following methods:
    1. http://www.regulations.gov. Follow the on-line instructions for
submitting comments.
    2. Email<EMAIL_ADDRESS>    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-
2014-0271. 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:<PHONE_NUMBER>; email address<EMAIL_ADDRESS>
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 October 15, 2008, EPA substantially strengthened the primary and
secondary Pb NAAQS (hereafter the 2008 Pb NAAQS). The level of the
primary (health-based) standard was revised to 0.15 micrograms per
cubic meter ([mu]g/m\3\), measured as total suspended particles (TSP)
and not to be exceeded with an averaging time of a rolling 3-month
period. EPA also revised the secondary (welfare-based) standard to be
identical to the primary standard (73 FR 66964).\1\
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    \1\ Although the effective date of the Federal Register notice
for the final rule was January 12, 2009, the rule was signed by the
Administrator and publicly disseminated on October 15, 2008.
Therefore, the deadline for submittal of infrastructure SIPs for the
2008 Pb NAAQS was October 15, 2011.
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    For the 2008 Pb 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
2008 Pb NAAQS. To assist states in meeting this statutory requirement,
EPA issued guidance on October 14, 2011, addressing the infrastructure
SIP elements required under sections 110(a)(1) and (2) for the 2008 Pb
NAAQS.\2\ 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,
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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    \2\ Stephen D. Page, Director, Air Quality Policy Division,
Office of Air Quality Planning and Standards, ``Guidance on
Infrastructure State Implementation Plan (SIP) Elements Required
Under sections 110(a)(1) and 110(a)(2) for the 2008 Lead (Pb)
National Ambient Air Quality Standards (NAAQS),'' Memorandum to EPA
Regional Air Division Directors, Regions I-X, October 14, 2011 (2011
Lead Infrastructure Guidance).
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III. What is EPA's approach to the review of infrastructure SIP
submissions?

    EPA is acting upon the January 13, 2012, SIP submission from Kansas
that addresses the infrastructure requirements of CAA sections
110(a)(1) and 110(a)(2) for the 2008 Pb 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.\3\ 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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    \3\ 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.\4\
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.\5\ 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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    \4\ 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)).
    \5\ 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.\6\ 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.\7\
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    \6\ 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).
    \7\ 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.\8\
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    \8\ 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.\9\ EPA
most recently issued guidance for infrastructure SIPs on September 13,
2013 (2013 Guidance).\10\ EPA developed this document to provide states
with up-to-date guidance for infrastructure SIPs for any new or revised
NAAQS. While today's proposed action relies on the specific guidance
issued for the 2008 Pb NAAQS, we have also considered this more recent
2013 guidance where applicable (although not specifically issued for
the 2008 Pb NAAQS) and have found no conflicts between the issued
guidance and review of Kansas' SIP submission. 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.\11\
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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    \9\ 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.
    \10\ ``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.
    \11\ 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 DC Circuit
decision in EME Homer City, 696 F.3d7 (D.C. Cir. 2012) which had
interpreted the requirements of section 110(a)(2)(D)(i)(I). In light
of the uncertainty created by ongoing litigation, 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, 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.\12\ 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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    \12\ 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.\13\ Section
110(k)(6) authorizes EPA to correct errors in past actions, such as
past

approvals of SIP submissions.\14\ 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.\15\
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    \13\ 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).
    \14\ 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).
    \15\ 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
2008 Pb standard on January 13, 2012. This SIP submission became
complete as a matter of law on July 13, 2012. 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 2008
Pb 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.\16\
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    \16\ 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 2008 Pb 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 submission for
the 2008 Pb 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 2008 Pb NAAQS and is
proposing to approve this element of the January 13, 2012, 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 Pb.
See, generally, http://www.kdheks.gov/bar/air-monitor/indexMon.html.
KDHE also conducts five-year monitoring network assessments, including
the Pb 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 Pb
monitoring network in Kansas. Specifically, KDHE operates one lead
monitor in Salina near the Exide Technologies facility in accordance
with the source-oriented lead monitoring requirements of 40 CFR part
58, appendix D, paragraph 4.5(a). Population-based monitoring is also
conducted at the JFK NCore (National Core Network) site in Kansas City,
Kansas. Data gathered by the monitors is submitted to EPA's Air Quality
System, which in turn determines if the network site monitor is in
compliance with the NAAQS.
    Within KDHE, the Bureau of Air and Radiation 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 2008 Pb 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 2008 Pb NAAQS and is
proposing to approve this element of the January 13, 2012, 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).\17\
---------------------------------------------------------------------------

    \17\ 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 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 2008 Pb 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 2008 Pb
NAAQS, but for all other regulated NSR pollutants as well. As stated in
the October 14, 2011, Pb Infrastructure SIP guidance, EPA has not
proposed to amend the PSD regulations with regard to the Pb NAAQS
because it believes that, generally, there is sufficient guidance and
regulations already in place to fully implement the revised Pb NAAQS.
    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 Pb NAAQS and all other regulated NSR
pollutants.
    Based upon review of the state's infrastructure SIP submission for
the 2008 Pb 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 2008 Pb NAAQS and is
proposing to approve this element of the January 13, 2012 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.
    With respect to prongs 1 and 2, the physical properties of Pb
prevent Pb emissions from experiencing a significant degree of travel
in the ambient air. No complex chemistry is needed to form Pb or Pb
compounds in the ambient air; therefore, concentrations of Pb are
typically highest near Pb sources. More specifically, there is a sharp
decrease in Pb concentrations as the distance from a source increases.
According to EPA's report entitled Our Nation's Air: Status and Trends
Through 2010, Pb concentrations that are not near a source of Pb are
approximately eight times less than the typical concentrations near the
source (http://www.epa.gov/airtrends/2011/report/fullreport.pdf). EPA
believes that the requirements of prongs 1 and 2 can be satisfied
through a state's assessment as to whether a Pb source located within
its state in close

proximity to a state border has emissions that contribute significantly
to the nonattainment or interfere with maintenance of the NAAQS in the
neighboring state.
    Kansas has one Pb nonattainment area with sources of Pb emissions
over 0.5 tons per year (tpy). The Pb nonattainment area is identified
as portions of Saline County, Kansas, and the sources contributing to
nonattainment are Exide Technologies and Metlcast. These sources are
located in central Kansas and therefore do not have an impact on any
other state.
    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 2008 Pb 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, significant impacts
from Pb emissions from stationary sources are expected to be limited to
short distances from the source and most, if not all Pb stationary
sources are located at distances from Class I areas such that
visibility impacts would be negligible. Although Pb can be a component
of coarse and fine particles, Pb generally comprises a small fraction
of coarse and fine particles. Furthermore, when evaluating the extent
that Pb could impact visibility, Pb-related visibility impacts were
found to be insignificant (e.g., less than 0.10%).\18\
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    \18\ Analysis by Mark Schmidt, OAQPS, ``Ambient Pb's
Contribution to Class I Area Visibility Impairment,'' June 17, 2011.
---------------------------------------------------------------------------

    Nevertheless, 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.\19\ 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.
---------------------------------------------------------------------------

    \19\ 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 2008 Pb 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)--Prongs 1 through 4 and 110
(a)(2)(D)(ii) for the 2008 Pb NAAQS and is proposing to approve this
element of the January 13, 2012, 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 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 2008 Pb 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 and Radiation 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 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, Shawnee County Health Agency, and
Unified Government of Wyandotte County--Kansas City, Kansas Public
Health Department.
    Based upon review of the state's infrastructure SIP submission for
the 2008 Pb 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 2008 Pb NAAQS and is proposing to
approve this element of the January 13, 2012, 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. 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 2008 Pb 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 2008 Pb NAAQS and is proposing to
approve this element of the January 13, 2012, 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. Based on EPA's experience to date with the Pb NAAQS and
designated Pb nonattainment areas, EPA expects that such an event would
be unlikely and, if it were to occur, would

be the result of a malfunction or other emergency situation at a
relatively large source of Pb.
    Nevertheless, 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 2008 Pb 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 2008 Pb NAAQS and is proposing to approve this
element of the January 13, 2012, 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 2008 Pb 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 2008 Pb NAAQS and is proposing to approve this
element of the January 13, 2012, 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 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/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 2008 Pb 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 2008 Pb NAAQS in the state and is
therefore proposing to approve this element of the January 13, 2012,
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 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 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 2008 Pb 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 2008 Pb NAAQS and is proposing to
approve this element of the January 13, 2012, 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 from taking future action
regarding Kansas' Title V program.
    Based upon review of the state's infrastructure SIP submission for
the 2008 Pb 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) are met
and is proposing to approve this element of the January 13, 2012,
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 and Radiation 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 Shawnee County Health Department, 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 Radiation 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 2008 Pb 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 2008 Pb
NAAQS and is proposing to approve this element of the January 13, 2012,
submission.

V. What action is EPA proposing?

    EPA is proposing to approve the January 13, 2012, infrastructure
SIP submission from Kansas which addresses the requirements of CAA
sections 110(a)(1) and (2) as applicable to the 2008 Pb NAAQS.
Specifically, EPA is proposing to approve the following infrastructure
elements, or portions thereof: 110(a)(2)(A), (B), (C), (D)(i)(I),
(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)(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 that 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 2008 Pb 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'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
     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).
    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, Lead, Reporting and
recordkeeping requirements.

    Dated: July 1, 2014.
Karl Brooks,
Regional Administrator, Region 7.
[FR Doc. 2014-16750 Filed 7-15-14; 8:45 am]
BILLING CODE 6560-50-P