[Federal Register Volume 78, Number 74 (Wednesday, April 17, 2013)]
[Proposed Rules]
[Pages 22827-22840]
[FR Doc No: 2013-09053]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R07-OAR-2013-0233; FRL-9803-1]

Approval and Promulgation of Implementation Plans; State of
Kansas; Infrastructure SIP Requirements for the 1997 and 2006 Fine
Particulate Matter National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing action on four Kansas State Implementation
Plan (SIP) submissions. First, EPA is proposing to approve portions of
two SIP submissions from the State of Kansas addressing the applicable
requirements of Clean Air Act (CAA) for the 1997 and 2006 National
Ambient Air Quality Standards (NAAQS) for fine particulate matter
(PM2.5). The CAA 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. EPA is also proposing to approve two
additional SIP submissions from Kansas, one addressing the Prevention
of Significant Deterioration (PSD) program in Kansas, and another
addressing the requirements applicable to any board or body which
approves permits or enforcement orders of the CAA, both of which
support requirements associated with infrastructure SIPs.

DATES: Comments must be received on or before May 17, 2013.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R07-
OAR-2013-0233, 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, KS 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, KS 66219.
    Instructions: Direct your comments to Docket ID No. EPA-R07-OAR-
2013-0233. 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 the U.S. Environmental
Protection Agency, Region 7, 11201 Renner Boulevard, Lenexa, KS 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 being addressed in this document?
II. What is a section 110(a)(1) and (2) Infrastructure SIP?
III. What elements are applicable under sections 110(a)(1) and (2)?
IV. What is the scope of this rulemaking as it relates to
infrastructure SIPs?
V. What is EPA's evaluation of how the State addressed the relevant
elements of sections 110(a)(1) and (2)?
VI. How does the March 1, 2013, Kansas PSD submission satisfy the
2008 PM2.5 NSR Rule and the PM2.5 PSD
Increment-SILs-SMC Rule?
VII. What are the additional provisions of the March 1, 2013, SIP
submission that EPA is proposing to take action on?
VIII. What action is EPA proposing?
IX. Statutory and Executive Order Review
X. Statutory Authority

I. What is being addressed in this document?

    In today's proposed rulemaking, EPA is proposing action on four
Kansas SIP submissions. EPA received the first submission on January 8,
2008, addressing the infrastructure SIP requirements relating to the
1997 PM2.5 NAAQS. EPA received the second submission on
April 12, 2010, addressing the infrastructure SIP requirements relating
to the 2006 PM2.5 NAAQS In a previous action EPA approved
section 110(a)(2)(D)(i)(I) and (II)--Interstate and international
transport requirements of Kansas' January 8, 2008, SIP submittal for
the 1997 PM2.5 NAAQS (72 FR 10608, May 8, 2007); and EPA
disapproved section 110(a)(2)(D)(i)(I)--Interstate and international
transport requirements of Kansas' April 12, 2010, SIP submittal for the
2006 PM2.5 NAAQS (76 FR 43143, July 20, 2011). Therefore, in
today's action, we are not proposing to act on these portions of
section 110(a)(2)since they have already been acted upon by EPA. If EPA
takes final action as proposed, we will have acted on both the January
8, 2008, and the April 12, 2010, submissions in their entirety
excluding those provisions that are not within the scope of today's
rulemaking as identified in section IV for both the 1997 and 2006
PM2.5 infrastructure SIP submissions.
    The third submission was received by EPA on March 1, 2013. This
submission revises the Kansas rule found at Kansas Administrative
Regulations (KAR) 29-19-350 ``Prevention of Significant Deterioration
of Air Quality'' to incorporate by reference Federal rule changes
through July 1, 2011. These changes implement elements of the
Prevention of Significant Deterioration (PSD) regulations relating to
EPA's 2008 NSR PM2.5 Implementation Rule (73 FR 28321, May
16, 2008) and certain elements of the ``Prevention of Significant
Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers
(PM2.5)--Increments, Significant Impact Levels (SILs) and
Significant Monitoring Concentration (SMC)'' rule (75 FR 64864, October
20, 2010). In addition, this rule amendment defers the application of
PSD permitting requirements to carbon dioxide (CO2)
emissions from bioenergy and other biogenic stationary sources.
    The fourth submission was received by EPA on March 19, 2013. This
submittal addresses the conflict of interest provisions in section 128
of the CAA as it relates to infrastructure SIPs described in element E
below.\1\
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    \1\ On March 19, 2013, Kansas submitted its provisions with
regards to CAA section 128 as part of its infrastructure SIP
submission for the 2008 Ozone and 2010 Nitrogen
Dioxide(NO2) NAAQS. EPA believes that these conflict of
interest provisions are applicable to all NAAQS. Therefore, as part
of today's rulemaking for the 1997 and 2006 p.m. 2.5
NAAQS, we are proposing to approve these provisions into the Kansas
SIP. See section V for further information.
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II. 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.

III. What elements are applicable under sections 110(a)(1) and (2)?

    On October 2, 2007, EPA issued guidance to address infrastructure
SIP elements required under sections 110(a)(1) and (2) for the 1997 8-
hour ozone and PM2.5 NAAQS.\2\ On September 25, 2009, EPA
issued guidance to address infrastructure SIP elements required under
sections 110(a)(1) and (2) for the 2006 24-hour PM2.5
NAAQS.\3\ 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 (PSD, New Source Review for nonattainment areas, and
construction and modification of all stationary sources) ; (D)
Interstate and international transport \4\; (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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    \2\ William T. Harnett, Director, Air Quality Policy Division,
Office of Air Quality Planning and Standards, ``Guidance on SIP
Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-
hour Ozone and PM2.5 National Ambient Air Quality
Standards,'' Memorandum to EPA Air Division Directors, Regions I-X,
October 2, 2007 (2007 Memo).
    \3\ William T. Harnett, Director, Air Quality Policy Division,
Office of Air Quality Planning and Standards, ``Guidance on SIP
Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-
Hour Fine Particle (PM2.5) National Ambient Air Quality
Standards (NAAQS),'' Memorandum to EPA Regional Air Division
Directors, Regions I-X, September 25, 2009 (2009 Memo).
    \4\ 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).

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IV. What is the scope of this rulemaking as it relates to
infrastructure SIPs?

    The applicable infrastructure SIP requirements are contained in
sections 110(a)(1) and (2) of the CAA. EPA is proposing action on each
of the requirements of section 110(a)(2)(A) through section
110(a)(2)(M), as applicable, except for the elements detailed in the
following paragraphs.
    This rulemaking will not cover four substantive issues that are not
integral to acting on a state's infrastructure SIP submission: (i)
Existing provisions related to excess emissions during periods of
start-up, shutdown, or malfunction at sources, 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 purport to permit revisions to SIP
approved emissions limits with limited public process or without
requiring further approval by EPA, that may be contrary to the CAA
(``director's discretion''); (iii) existing provisions for minor source
New Source Review (NSR) programs that may be inconsistent with the
requirements of the CAA and EPA's regulations that pertain to such
programs (``minor source NSR''); and, (iv) 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 the ``NSR Reform'' final rulemaking on June 13, 2007 (72 FR
32526). Instead, EPA has indicated that it has other authority to
address any such existing SIP defects in other rulemakings, as
appropriate. A detailed rationale for why these four substantive issues
are not part of the scope of infrastructure SIP rulemakings can be
found at 76 FR 41075, 41076-41079 (July 13, 2011). See also 77 FR
38239, 38240-38243 (June 27, 2012); and 77 FR 46361, 46362-46365
(August 3, 2012).
    In addition to the four substantive areas above, EPA is not acting
in this 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). A detailed rationale for not acting on elements
of these requirements is discussed within each applicable section of
this rulemaking. As described above in section I, EPA is also not
acting on portions of section 110(a)(2)(D)(i)--Interstate and
international transport, as final actions have already been taken on
portions of this element for both the Kansas 1997 and 2006
PM2.5 infrastructure SIP submissions.
    Finally, as part of this action, EPA is evaluating the state's
compliance with the new PSD requirements promulgated in the
``Implementation of New Source Review (NSR) Program for Particulate
Matter Less Than 2.5 Micrometers (PM2.5),'' (73 FR 28321,
May 16, 2008), and the PM2.5 Increment, SILs and SMC Rule,
(75 FR 64864, October 20, 2010). Regarding the May 16, 2008 rule, on
January 4, 2013, the U.S. Court of Appeals in the District of Columbia,
in Natural Resources Defense Council v. EPA, 706 F.3d 428 (DC Cir.),
issued a judgment that remanded two of EPA's rules implementing the
1997 PM2.5 NAAQS, including the 2008 rule. The Court ordered
the EPA to ``repromulgate these rules pursuant to Subpart 4 consistent
with this opinion.'' Id. at 437. Subpart 4 of Part D, Title 1 of the
CAA establishes additional provisions for particulate matter
nonattainment areas. The 2008 implementation rule addressed by the
Court's decision promulgated NSR requirements for implementation of
PM2.5 in both nonattainment areas (nonattainment NSR) and
attainment/unclassifiable areas (PSD). As the requirements of Subpart 4
only pertain to nonattainment areas, EPA does not consider the portions
of the 2008 rule that address requirements for PM2.5
attainment and unclassifiable areas to be affected by the Court's
opinion. Moreover, the EPA does not anticipate the need to revise any
PSD requirements promulgated in the 2008 rule in order to comply with
the Court's decision. Accordingly, EPA's approval of Kansas'
infrastructure SIP as to Elements (C), (D)(i)(II), and (J), with
respect to the PSD requirements promulgated by the 2008 implementation
rule does not conflict with the Court's opinion.
    The Court's decision with respect to the nonattainment NSR
requirements promulgated by the 2008 implementation rule also does not
affect EPA's action on the present infrastructure SIP submission. As
described above, EPA interprets the Act to exclude nonattainment area
requirements, including requirements associated with a nonattainment
NSR program, from infrastructure SIP submissions due 3 years after
adoption or revision of a NAAQS. Instead, these elements are typically
referred to as nonattainment SIP or attainment plan elements, which
states must submit by the dates statutorily prescribed under part D
within subparts 2 through 5, extending as far as ten years following
designations for some elements. Given these separate applicable SIP
submission dates, EPA concludes that these specific requirements are
outside the scope of the infrastructure SIPs.

V. What is EPA's evaluation of how the State addressed the relevant
elements of sections 110(a)(1) and (2)?

    On July 18, 1997, EPA promulgated new PM2.5 primary and
secondary NAAQS (62 FR 38652). On October 17, 2006, EPA made further
revisions to the primary and secondary NAAQS for PM2.5 (71
FR 61144). On January 8, 2008, EPA Region 7 received Kansas'
particulate matter infrastructure SIP submission for the 1997
PM2.5 standard. On April 12, 2010, EPA Region 7 received
Kansas' particulate matter infrastructure SIP submittal for the 2006
PM2.5 standard. These SIP submissions became complete as a
matter of law on July 8, 2008, and October 12, 2010, respectively. EPA
has reviewed both of the State's infrastructure SIP submissions and the
relevant statutory and regulatory authorities and provisions referenced
in those submittals or referenced in Kansas' SIP.
    (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.\5\
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    \5\ 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 1997 or 2006
PM2.5 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.
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    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 1997 and 2006 PM2.5 NAAQS, and relevant statutory and
regulatory authorities and provisions referenced in those submissions
or referenced in Kansas' SIP, EPA believes that Kansas has statutory
and regulatory authority to establish additional emissions limitations
and other measures, as necessary to address attainment and maintenance
of the PM2.5 standards. Therefore, EPA believes that the
Kansas SIP adequately addresses the requirements of section
110(a)(2)(A) for the 1997 and 2006 PM2.5 NAAQS \6\ and is
proposing to approve the January 8, 2008, submission regarding the 1997
PM2.5 infrastructure SIP requirements and the April 12,
2010, submission regarding the 2006 PM2.5 infrastructure SIP
requirements for this element.
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    \6\ For the reasons stated earlier, EPA is not addressing SSM
and director's discretion provisions in this rulemaking.
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    (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
PM2.5. See, generally, http://www.kdheks.gov/bar/air-monitor/indexMon.html. KDHE also conducts five-year monitoring network
assessments, including the PM2.5 monitoring network, as
required by 40 CFR 58.10(d). On January 10, 2013, EPA approved Kansas'
2012 ambient air monitoring network. This plan includes, among other
things, the locations for the PM2.5 monitoring network in
Kansas, which currently includes 13 monitors located at 11 sites. Data
gathered by these 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 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 are 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 1997 and 2006 PM2.5 NAAQS, and relevant statutory and
regulatory authorities and provisions referenced in those submissions
or referenced in Kansas' SIP, EPA believes that the Kansas SIP meets
the requirements of section 110(a)(2)(B) for the 1997 and 2006 24-hour
PM2.5 NAAQS and is proposing to approve the January 8, 2008,
submission regarding the 1997 PM2.5 infrastructure SIP
requirements and the April 12, 2010, submission regarding the 2006
PM2.5 infrastructure SIP requirements for this element.
    (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).\7\
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    \7\ 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.
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    (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 1997 and 2006 PM2.5 standards 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). EPA believes that a number
of states may have minor NSR provisions that are contrary to the
existing EPA regulations for this program. EPA intends to work with
states to reconcile state minor NSR programs with EPA's regulatory
provisions for the program. The statutory requirements of section
110(a)(2)(C) provide for considerable flexibility in designing minor
NSR programs, and EPA believes it may be time to revisit the regulatory
requirements for this program to give the states an appropriate level
of flexibility to design a program that meets their particular air
quality concerns, while assuring reasonable consistency across the
country in protecting the NAAQS with respect to new and modified minor
sources.
    (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 for not just PM2.5,
but for all other regulated NSR pollutants as well. To implement the
PSD permitting component of section 110(a)(2)(C) for the 1997 and 2006
PM2.5 NAAQS, states were required to submit the necessary
SIP revisions to EPA by May 16, 2011, and July 20, 2012, pursuant to
EPA's NSR PM2.5 Implementation Rule (2008 NSR Rule), (73 FR
28321, May 16, 2008), and EPA's PM2.5 Increment--Significant
Impact Levels (SILs)--Significant Monitoring Concentration (SMC) rule,
(75 FR 64864, October 20, 2010). As described in section IV above, the
January 4, 2013, court decision remanding the 2008 rule does not impact
the EPA's action as to this element.
    The 2008 NSR Rule finalized several new requirements for SIPs to
address sources that emit direct PM2.5 and other pollutants
that contribute to secondary PM2.5 formation. One of these
requirements is for NSR permits to address pollutants responsible for
the secondary formation of PM2.5, otherwise known as
precursors. In the 2008 NSR Rule, EPA identified precursors to
PM2.5 for the PSD program to include sulfur dioxide
(SO2) and nitrogen oxide (NOX) (unless the state
demonstrates to the Administrator's satisfaction or EPA demonstrates
that NOX emissions in an area are not a significant
contributor to that area's ambient PM2.5 concentrations)
(see 73 FR 28325). The 2008 NSR Rule also specifies that volatile
organic compounds (VOCs) are not considered to be precursors to
PM2.5 in the PSD program unless the state demonstrates to
the Administrator's satisfaction or EPA demonstrates that emissions of
VOCs in an area are significant contributors to that area's ambient
PM2.5 concentrations. The specific references to
SO2, NOX, and VOCs as they pertain to secondary
PM2.5 formation are codified at 40 CFR 51.166(b)(49)(i)(b)
and 40 CFR 52.21(b)(50)(i)(b). The deadline for states to submit SIP
revisions to their PSD programs incorporating these new requirements
was May 16, 2011 (73 FR 28341).
    As part of identifying pollutants that are precursors to
PM2.5, the 2008 NSR Rule also revised the definition of
``significant'' as it relates to a net emissions increase or the
potential of a source to emit pollutants. Specifically, 40 CFR
51.166(b)(23)(i) and 40 CFR 52.21(b)(23)(i) define ``significant'' for
PM2.5 to mean the following emissions rates: 10 tons per
year (tpy) of direct PM2.5; 40 tpy of SO2; and 40
tpy of NOX (unless the state demonstrates to the
Administrator's satisfaction or EPA demonstrates that NOX
emissions in an area are not a significant contributor to that area's
ambient PM2.5 concentrations).
    Another provision of the 2008 NSR Rule requires states to account
for gases that could condense to form particulate matter, known as
condensables, for applicability determinations and in establishing
emission limits for PM2.5 and PM10 \8\ in NSR
permits. EPA provided that states were required to account for
PM2.5 and PM10 condensables beginning on or after
January 1, 2011. This requirement is currently codified in 40 CFR
51.166(b)(49)(i)(a) and 40 CFR 52.21(b)(50)(i)(a). Revisions to states'
PSD programs incorporating the inclusion of condensables were required
to be submitted to EPA by May 16, 2011 (73 FR at 28341).
---------------------------------------------------------------------------

    \8\ PM10 refers to particles with diameters between
2.5 and 10 microns, oftentimes referred to as ``coarse'' particles.
---------------------------------------------------------------------------

    The definition of ``regulated NSR pollutant'' in the PSD provisions
of the 2008 rule inadvertently required states to also account for the
condensable PM fraction with respect to one indicator of PM referred to
as ``particular matter emissions.'' The term ``particulate matter
emissions'' includes PM2.5 and PM10 particles as
well as larger particles, and is an indicator for PM that has long been
used for measuring PM under various New Source Performance Standards
(NSPS) (40 CFR part 60).\9\ A similar provision addressing condensables
was added to the Nonattainment NSR SIP provisions of the 2008 NSR Rule
but does not include a requirement to account for ``particulate matter
(PM) emissions'' in all cases (40 CFR 51.165(a)(1)(xxxvii)(D)). On
October 12, 2012, EPA finalized a rulemaking to amend the definition of
``regulated NSR pollutant'' promulgated in the NSR PM2.5
Rule regarding the PM condensable provision currently at 40 CFR
51.166(b)(49)(i)(a), 52.21(b)(50)(i)(a), and the EPA's Emissions Offset
Interpretative Ruling (see 77 FR 65107). The rulemaking removes the
inadvertent requirement in the 2008 NSR Rule that the measurement of
condensables be generally included as part of the measurement and
regulation of ``particulate matter emissions.'' \10\
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    \9\ In addition to the NSPS for PM, it is noted that states
regulated ``particulate matter emissions'' for many years in their
SIPs for PM, and the same indicator has been used as a surrogate for
determining compliance with certain standards contained in 40 CFR
part 63, regarding National Emission Standards for Hazardous Air
Pollutants.
    \10\ The change finalized in that action does not mean that EPA
has entirely exempted the inclusion of the condensable PM fraction
as part of accounting for ``particulate matter emissions.'' It may
be necessary for PSD sources to count the condensable PM fraction
with regard to ``particulate matter emissions'' where either the
applicable NSPS compliance test includes the condensable PM fraction
or the applicable implementation plan requires the condensable PM
fraction to be counted. See 77 FR 65112.

---------------------------------------------------------------------------

    The 2010 PM2.5 Increment-Significant Impact Levels
(SILS)--Significant Monitoring Concentration (SMC) Rule provided
additional regulatory requirements under the PSD SIP program regarding
the implementation of the PM2.5 NAAQS (see 75 FR 64864). As
a result, the PM2.5 PSD Increment-SILs-SMC Rule required
states to submit SIP revisions to adopt the required PSD increments by
July 20, 2012. Specifically, the rule required a state's submitted PSD
SIP revision to adopt and submit for EPA approval the PM2.5
increments pursuant to section 166(a) of the CAA to prevent significant
deterioration of air quality in areas meeting the NAAQS.
    That rule also permitted states, at their discretion, to choose to
adopt and submit for EPA approval into the SIP SILs, used as a
screening tool (by a major source subject to PSD), to evaluate the
impact a proposed major source or modification may have on the NAAQS or
PSD increment; and a SMC (also a screening tool), used by a major
source subject to PSD to determine the subsequent level of data
gathering required for a PSD permit application for emissions of
PM2.5. More detail on the PM2.5 PSD Increment-
SILs-SMC Rule can be found at 75 FR 64864. In regards to the SILs and
SMC provisions of the 2010 PM2.5 rule, on January 22, 2013,
the U.S. Court of Appeals for the District of Columbia, in Sierra Club
v. EPA, No. 10-1413 (filed Dec. 17, 2010), issued a judgment that,
inter alia, vacated and remanded the provisions concerning
implementation of the PM2.5 SILs and vacated the provisions
adding the PM2.5 SMC that were promulgated as part of the
2010 PM2.5 PSD Rule.
    Accordingly, the only remaining requirements from the 2010 rule are
the PM2.5 increment and associated provisions discussed
below. Under section 165(a)(3) of the CAA, a PSD permit applicant must
demonstrate that emissions from the proposed construction and operation
of a facility ``will not cause, or contribute to, air pollution in
excess of any maximum allowable increase or allowable concentration for
any pollutant.'' In other words, when a source applies for a PSD SIP
permit to emit a regulated pollutant in an attainment or unclassifiable
area, the permitting authority implementing the PSD SIP must determine
if emissions of the regulated pollutant from the source will cause
significant deterioration in air quality. Significant deterioration
occurs when the amount of the new pollution exceeds the applicable PSD
increment, which is the ``maximum allowable increase'' of an air
pollutant allowed to occur above the applicable baseline concentration
\11\ for that pollutant. PSD increments prevent air quality in
attainment and unclassifiable areas from deteriorating up to or beyond
the level set by the NAAQS. Therefore, an increment is the mechanism
used to estimate ``significant deterioration'' of air quality for a
pollutant in an area.
---------------------------------------------------------------------------

    \11\ Section 169(4) of the CAA provides that the baseline
concentration of a pollutant for a particular baseline area is
generally the same air quality at the time of the first application
for a PSD permit in the area.
---------------------------------------------------------------------------

    For PSD baseline purposes, a baseline area for a particular
pollutant emitted from a source includes the attainment or
unclassifiable/attainment area in which the source is located, as well
as any other attainment or unclassifiable/attainment area in which the
source's emissions of that pollutant are projected (by air quality
modeling) to result in an ambient pollutant increase of at least 1 ug/
m\3\ (annual average) (40 CFR 51.166(b)(15)(i) and (ii)). Under EPA's
existing regulations, the establishment of a baseline area for any PSD
increment results from the submission of the first complete PSD permit
application after a trigger date (which for PM2.5 is defined
as October 20, 2011, by regulation) and is based on the location of the
proposed source and its emissions impact on the area. Once the baseline
area is established, subsequent PSD sources locating in that area must
consider that a portion of the available increment may have already
been consumed by previous emissions increases. In general, the
submittal date of the first complete PSD permit application in a
particular area is the operative ``baseline date.'' \12\ On or before
the date of the first complete PSD application, emissions generally are
considered to be part of the baseline concentration, except for certain
emissions from major stationary sources. Most emissions increases that
occur after the baseline date will be counted toward the amount of
increment consumed. Similarly, emissions decreases after the baseline
date restore or expand the amount of increment that is available (see
75 FR 64864). As described in the PM2.5 PSD Increment-SILs-
SMC Rule, pursuant to the authority under section 166(a) of the CAA,
EPA promulgated numerical increments for PM2.5 as a new
pollutant \13\ for which the NAAQS were established after August 7,
1977,\14\ and derived 24-hour and annual PM2.5 increments
for the three area classifications (Class I, II and III) using the
``contingent safe harbor'' approach (75 FR at 64869 and table at 40 CFR
51.166(c)(1)).
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    \12\ Baseline dates are pollutant specific. That is, a complete
PSD application establishes the baseline date only for those
regulated NSR pollutants that are projected to be emitted in
significant amounts (as defined in the regulations) by the
applicant's new source or modification. Thus, an area may have
different baseline dates for different pollutants.
    \13\ EPA generally characterized the PM2.5 NAAQS as a
NAAQS for a new indicator of PM. EPA did not replace the
PM10 NAAQS with the NAAQS for PM2.5 when the
PM2.5 NAAQS were promulgated in 1997. Rather, EPA
retained the annual and 24-hour NAAQS for PM10 as if
PM2.5 was a new pollutant even though EPA had already
developed air quality criteria for PM generally (75 FR 64864).
    \14\ EPA interprets 166(a) to authorize EPA to promulgate
pollutant-specific PSD regulations meeting the requirements of
section 166(c) and 166(d) for any pollutant for which EPA
promulgates a NAAQS after 1977.
---------------------------------------------------------------------------

    In addition to PSD increments for the 2006 PM2.5 NAAQS,
the PM2.5 PSD Increment-SILs-SMC Rule amended the definition
at 40 CFR 51.166 and 40 CFR 52.21 for ``major source baseline date''
and ``minor source baseline date'' to establish the PM2.5
NAAQS specific dates (including trigger dates) associated with the
implementation of PM2.5 PSD increments. See the PSD
Increment-SILs-SMC rule for a more detailed discussion on the
amendments to these definitions (75 FR 64864). In accordance with
section 166(b) of the CAA, EPA required the states to submit revised
implementation plans adopting the PM2.5 PSD increments to
EPA for approval within 21 months from promulgation of the final rule
(i.e., by July 20, 2012). Each state was responsible for determining
how increment consumption and the setting of the minor source baseline
date for PM2.5 would occur under its own PSD program.
Regardless of when a state begins to require PM2.5 increment
analysis and how it chooses to set the PM2.5 minor source
baseline date, the emissions from sources subject to PSD for
PM2.5 for which construction commenced after October 20,
2010, (major source baseline date) consume the PM2.5
increment and therefore should be included in the increment analyses
occurring after the minor source baseline date is established for an
area under the state's revised PSD SIP program.
    To meet the requirements of element (C), in addition to the
PM2.5 PSD elements that must be incorporated in to the SIP,
each state's PSD program must meet applicable requirements for all
regulated pollutants in PSD permits. For example, if a state lacks
provisions needed to address NOX as a precursor to ozone,
the provisions of section 110(a)(2)(C) requiring a suitable PSD
permitting program for PM2.5 will not be considered to be
met.
    Relating to ozone, the EPA's ``Final Rule to Implement the 8-Hour
Ozone

National Ambient Air Quality Standard--Phase 2; Final Rule to Implement
Certain Aspects of the 1990 Amendments Relating to New Source Review
and Prevention of Significant Deterioration as They Apply in Carbon
Monoxide, Particulate Matter, and Ozone NAAQS; Final Rule for
Reformulated Gasoline'' (Phase 2 Rule), was published on November 8,
2005 (70 FR 71612). Among other requirements, the Phase 2 Rule
obligated states to revise their PSD programs to explicitly identify
NOX as a precursor to ozone (70 FR at 71679, and at 71699-
71700). This requirement is currently codified in 40 CFR
51.166(b)(49)(i)(b).
    EPA notes that the Kansas SIP provides that ozone precursors
(volatile organic compounds (VOCs) and nitrogen oxides) are regulated.
The regulations at 40 CFR 52.21(b)(50) specifically state that nitrogen
oxides and VOCs are considered precursors for ozone in all attainment
and unclassifiable areas. For example, a stationary source that is
major for VOCs is also major for ozone for purposes of permitting in
nonattainment areas (KAR 28-19-16a(r) ``New Source Permit Requirements
for Designated Nonattainment Areas''). In addition, a source that
undergoes a significant net emissions increase for VOCs is also
considered to have undergone a significant net emissions increase for
ozone for the purposes of the Kansas air quality regulations (KAR 28-
19-200(eee)(6) ``General Provisions; Definitions''). The ozone
provisions were previously approved by EPA into the Kansas SIP on
February 22, 2011 (76 FR 9658).
    As a part of today's rulemaking, EPA is proposing to approve
amendments to Kansas' PSD regulations for PM2.5 into the
SIP. See section VI for EPA's analysis of how Kansas' March 1, 2013,
submission meets the PSD requirements.
    Regarding greenhouse gases (GHG), on June 3, 2010, EPA issued a
final rule establishing a ``common sense'' approach to addressing GHG
emissions from stationary sources under the CAA permitting programs.
The ``Prevention of Significant Deterioration and Title V Greenhouse
Gas Tailoring Rule,'' or ``Tailoring Rule,'' set thresholds for GHG
emissions that define when permits under the NSR PSD and title V
operating permit programs are required for new and existing industrial
facilities (see 75 FR 31514). Without the new threshold provided by the
Tailoring Rule, sources with GHG emissions above the statutory
thresholds (of 100 or 250 tons per year) would be subject to PSD, which
could have potentially resulted in apartment complexes, strip malls,
small farms, restaurants, etc. triggering GHG PSD requirements.
    With respect to the applicability of the Kansas PSD program to GHG
emissions, on February 22, 2011, EPA approved in to the Kansas SIP an
amendment that would regulate GHGs under Kansas' PSD program (76 FR
9658). Thus, we have previously determined that the Kansas SIP meets
the PSD requirements with respect to GHGs.
    Based upon review of the State's infrastructure SIP submissions for
the 1997 and 2006 PM2.5 NAAQS and the March 1, 2013,
submission regarding PSD requirements, and relevant statutory and
regulatory authorities and provisions referenced in those submissions
or referenced in Kansas' SIP, with respect to the requirements of
section 110(a)(2)(C) for the 1997 and 2006 24-hour PM2.5
NAAQS, EPA is proposing to approve the January 8, 2008, submission
regarding the 1997 PM2.5 infrastructure SIP requirements,
the April 12, 2010, submission regarding the 2006 PM2.5
infrastructure SIP requirements, and the March 1, 2013, submission
regarding the PSD requirements. EPA's analysis of the March 1, 2013,
submittal is provided in section VI below.
    (D) Interstate and international transport:
    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.
Furthermore, 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. 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).
    In this notice, we are not proposing to take any actions related to
the interstate transport requirements of section 110(a)(2)(D)(i)(I)--
prongs 1 and 2. At this time, there is no SIP submission from Kansas
relating to 110(a)(2)(D)(i)(I) for the 1997 or 2006 PM2.5
NAAQS pending before the Agency. EPA previously approved the provisions
of the Kansas SIP submission addressing the requirements of section
110(a)(2)(D)(i)(I), with respect to the 1997 PM2.5
standards, into the Kansas SIP on May 8, 2007 (72 FR 10608). EPA also
disapproved the portion of the Kansas SIP submission intended to
address section 110(a)(2)(D)(i)(I) with respect to the 2006
PM2.5 standards (76 FR 43143, July 20, 2011).
    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 the 1997 and
2006 PM2.5 NAAQS has 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). Therefore, EPA is proposing to
approve the PSD requirements of section 110(a)(2)(D)(i)(II)--prong 3.
    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 2009 Memo \15\
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.
---------------------------------------------------------------------------

    \15\ William T. Harnett, Director, Air Quality Policy Division,
Office of Air Quality Planning and Standards ``Guidance on SIP
Elements Required Under Sections 110(a(1) and (2) for the 2006 24-
Hour Fine Particle (PM2.5) National Ambient Air Quality
Standards (NAAQS).'' Memorandum to EPA Regional Air Division
Directors, Regions I-X, September 25, 2009.
---------------------------------------------------------------------------

    EPA's final approval of Kansas' regional haze plan ``Approval and
Promulgation of Implementation Plans; State of Kansas: Regional Haze''
was published 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 existing anthropogenic
impairment of visibility in Class I areas caused by emissions of air
pollutants located over a wide geographic area. Therefore, EPA proposes
that Kansas has met the infrastructure SIP requirements of section
110(a)(2)(D)(i)(II) related to visibility protection for the 1997 and
2006 PM2.5 NAAQS.
    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 Act 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 1997 and 2006 PM2.5 NAAQS, and relevant statutory and
regulatory authorities and provisions referenced in those submissions
or referenced in Kansas' SIP, EPA believes that Kansas has the adequate
infrastructure needed to address section 110(a)(2)(D)(i)(II)--Prongs 3
and 4 and 110(a)(2)(D)(ii) for the 1997 and 2006 PM2.5
NAAQS. EPA is proposing to approve the January 8, 2008, submission
regarding the 1997 PM2.5 infrastructure SIP requirements and
the April 12, 2010, submission regarding the 2006 PM2.5
infrastructure SIP requirements for this element.
    (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 1997 and 2006 PM2.5
NAAQS, primarily in the discussion of section 110(a)(2)(A) above.
Neither Kansas nor EPA have identified any legal impediments in the
State's SIP to implementation of these 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 & Enforcement Section, Air Permit Section; the Monitoring &
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) also 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. In
1978, EPA issued a guidance memorandum recommending ways that states
could meet the requirements of section 128, including suggested
interpretations of certain terms in section 128.\17\ EPA has not issued
further guidance or regulations of general applicability on the subject
since that time. However, EPA has recently proposed certain
interpretations of section 128 as part of its actions on other
infrastructure SIPs consistent with the statutory requirements (see,
e.g., (77 FR 44555, July 30, 2012) and (77 FR 66398, November 5,
2012)). We are now proposing these same interpretations in relation to
the Kansas SIP.
---------------------------------------------------------------------------

    \17\ See Memorandum from David O. Bickart to Regional Air
Directors, ``Guidance to States for Meeting Conflict of Interest
Requirements of Section 128,'' Suggested Definitions, March 2, 1978.
---------------------------------------------------------------------------

    On March 19, 2013, Kansas submitted to EPA specific provisions of
the Kansas statutes that address section 128, for inclusion into the
SIP. In today's action, we are also proposing to approve Kansas' March
19, 2013, submission related to sections 110(a)(2)(E)(ii) and 128 of
the CAA. Due to the fact that this proposed rule revision is not yet
state-effective, Kansas requested that EPA ``parallel process'' the
revision. Under this procedure, the EPA Regional Office works closely
with the state while developing new or revised regulations. Generally,
the state submits a copy of

the proposed regulation or other revisions to EPA before conducting its
public hearing. EPA reviews this proposed state action and prepares a
notice of proposed rulemaking. EPA publishes this notice of proposed
rulemaking in the Federal Register and solicits public comment in
approximately the same time frame during which the state is holding its
public hearing. The state and EPA thus provide for public comment
periods on both the state and the Federal actions in parallel. After
Kansas submits the formal state-effective rule and SIP revision request
(including a response to all public comments raised during the state's
public participation process), EPA will prepare a final rulemaking
notice for the SIP revision. If changes are made to the state's
proposed rule after EPA's notice of proposed rulemaking, such changes
must be acknowledged in EPA's final rulemaking action. If the changes
are significant, then EPA may be obliged to re-propose the action. In
addition, if the changes render the SIP revision not approvable, EPA's
re-proposal of the action would be a disapproval of the revision. EPA
and Kansas have worked to assure that the state's SIP correctly
addresses these requirements.
    EPA's analysis consisted of review of Kansas' March 19, 2013, SIP
submission and EPA's additional review of Kansas' statutes and
authorities. The first step in the analysis consists of identifying
boards, bodies and persons responsible for approving permits and
enforcement orders and determining the applicability of the section 128
requirements to these entities. The Kansas Air Quality Act does not
establish any boards or bodies that are responsible for approving
permits or enforcement orders; rather, that authorities lies
exclusively with the Secretary (see KSA Section 65-3005(a)(3)).
Therefore, EPA believes the requirements of section 128(a)(1) do not
apply to Kansas.
    To satisfy section 128(a)(2) of the CAA, Kansas submitted to EPA
KSA Section 46-247(c) for inclusion into the SIP on March 19, 2013.
This provision requires state officers (as defined at KSA Section 46-
221), employees and members of boards, councils and commissions under
the jurisdiction of the head of any state agency to file written
statements of substantial interests (as that term is defined at KSA
Section 46-229). Thus, Kansas law requires disclosure of any potential
conflicts of interest by the head of an agency responsible for issuing
permits and enforcement orders (i.e., KDHE).
    EPA believes that the above identified relevant sections of the
Kansas statutes directly address the provisions related to section
128(a)(2) of the CAA. We propose to approve the following provisions
into the Kansas SIP as they strengthen the SIP with respect to the
conflict of interest requirements of CAA section 128:
     KSA Section 46-221
     KSA Section 46-229
     KSA Section 46-247(c)
    (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 therefore. 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 & 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 submissions for
the 1997 and 2006 PM2.5 NAAQS and the March 19, 2013, SIP
submission, and relevant statutory and regulatory authorities and
provisions referenced in those submissions or referenced in Kansas'
SIP, EPA believes that Kansas has the adequate infrastructure needed to
address section 110(a)(2)(E) for the 1997 and 2006 PM2.5
NAAQS and is proposing to approve the January 8, 2008, submission
regarding the 1997 PM2.5 infrastructure SIP requirements and
the April 12, 2010, submission regarding the 2006 PM2.5
infrastructure SIP requirements, and the March 19, 2013, submission
relating to section 128 requirements.
    (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 1997 and 2006 PM2.5 NAAQS, and relevant statutory and
regulatory authorities and provisions referenced in those submissions
or referenced in Kansas' SIP, EPA believes that Kansas has the adequate
infrastructure needed to address section 110(a)(2)(F) for the 1997 and
2006 PM2.5 NAAQS and is proposing to approve the January 8,
2008, submission regarding the 1997 PM2.5 infrastructure SIP
requirements and the April 12, 2010, submission regarding the 2006
PM2.5 infrastructure SIP requirements for this element.
    (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.
    With respect to the contingency plan requirements of section
110(a)(2)(G), EPA has issued guidance making recommendations for how
states may elect to approach this issue. In that guidance, EPA
recommended that, where a state can demonstrate that PM2.5
levels have remained below 140.4 micrograms per cubic meter, the state
is not required to develop a contingency plan to satisfy element (G).
EPA believes that this is a reasonable interpretation of the statute
and addresses the PM2.5 NAAQS in a way analogous to other
NAAQS pollutants. PM2.5 monitoring data from monitors across
the state have shown that 24-hour PM2.5 values have never
exceeded 140.4 micrograms per cubic meter in Kansas. Therefore, Kansas
is not required to develop a contingency plan for PM2.5 at
this time. That said, the Kansas regulations provide that any person
responsible for the operation of a source of air contamination adjudged
to be of major concern with respect to the possible implementation of
air pollution emergency episode control procedures either because of
the nature or the quantity of its emissions must, at the request of
KDHE, prepare an emergency episode plan to be implemented in the event
that such an episode is declared. See KAR 28-19-58 ``Emergency Episode
Plans''.
    Based upon review of the State's infrastructure SIP submissions for
the 1997 and 2006 PM2.5 NAAQS, and relevant statutory and
regulatory authorities and provisions referenced in those submissions
or referenced in Kansas' SIP, EPA believes that Kansas has the adequate
infrastructure needed to address section 110(a)(2)(G) for the 1997 and
2006 PM2.5 NAAQS and is proposing to approve the January 8,
2008, submission regarding the 1997 PM2.5 infrastructure SIP
requirements and the April 12, 2010, submission regarding the 2006
PM2.5 infrastructure SIP requirements for this element.
    (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 submissions for
the 1997 and 2006 PM2.5 NAAQS, and relevant statutory and
regulatory authorities and provisions referenced in those submissions
or referenced in Kansas' SIP, EPA believes that Kansas has adequate
infrastructure needed to address section 110(a)(2)(H) for the 1997 and
2006 PM2.5 NAAQS and is proposing to approve the January 8,
2008, submission regarding the 1997 PM2.5 infrastructure SIP
requirements and the April 12, 2010, submission regarding the 2006
PM2.5 infrastructure SIP requirements for this element.
    (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 a different submission schedule 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 CAA
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 prevention of significant deterioration of air quality
and visibility protection, we note in section VI of this rulemaking how
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.
    Based upon review of the State's infrastructure SIP submissions for
the 1997 and 2006 PM2.5 NAAQS, and relevant statutory and
regulatory authorities and provisions referenced in those submissions
or referenced in Kansas' SIP, EPA believes that Kansas has the adequate
infrastructure needed to address section 110(a)(2)(J) for the 1997 and
2006 PM2.5 NAAQS and is proposing to approve the January 8,
2008, submission regarding the 1997 PM2.5 infrastructure SIP
requirements and the April 12, 2010, submission regarding the 2006
PM2.5 infrastructure SIP requirements for this element.
    (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 submissions for
the 1997 and 2006 PM2.5 NAAQS, and relevant statutory and
regulatory authorities and provisions referenced in those submissions
or referenced in Kansas' SIP, EPA believes that Kansas has the adequate
infrastructure needed to address section 110(a)(2)(K) for the 1997 and
2006 PM2.5 NAAQS and is proposing to approve the January 8,
2008, submission regarding the 1997 PM2.5 infrastructure SIP
requirements and the April 12, 2010, submission regarding the 2006
PM2.5 infrastructure SIP requirements for this element.
    (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 cost 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 is reviewing 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.
    Therefore, EPA believes that the requirements of section
110(a)(2)(L) are met and is therefore proposing to approve the January
8, 2008, submittal regarding the 1997 PM2.5 infrastructure
SIP requirements and the April 12, 2010, submittal regarding the 2006
PM2.5 infrastructure SIP requirements for this element.
    (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 & 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 submissions for
the 1997 and 2006 PM2.5 NAAQS, and relevant statutory and
regulatory authorities and provisions referenced in those submissions
or referenced in Kansas' SIP, EPA believes that Kansas has the adequate
infrastructure needed to address section 110(a)(2)(M) for the 1997 and
2006 PM2.5 NAAQS and is proposing to approve the January 8,
2008, submission regarding the 1997 PM2.5 infrastructure SIP
requirements and the April 12, 2010, submission regarding the 2006
PM2.5 infrastructure SIP requirements for this element.

VI. How does the March 1, 2013 Kansas PSD submission satisfy the 2008
PM2.5 NSR Rule and the PM2.5 PSD Increment-SILs-
SMC Rule?

    To address the requirements of EPA's May 16, 2008, PM2.5
implementation rule and the October 20, 2010, PM2.5 PSD
Increment-SILs-SMC Rule, as described above in section V in the
discussion of element (C), Kansas submitted a SIP revision received by
EPA on March 1, 2013, which updates its PSD rules. In this SIP
submission, Kansas incorporates by reference Federal updates through
July 1, 2011. The submission also updated Kansas' PSD rules to
establish the allowable PM2.5 increments, the optional
screening tools (SILs), and significant monitoring concentrations
(SMCs). On April 2, 2013, Kansas amended and clarified its submission
so that it was no longer intending to include specific provisions
relating to the SILs and SMC affected by the January 22, 2013, court
decision referenced above. Our analysis of the SIP revision, with
respect to both rules, follows.
    Specifically, regarding the 2008 PM2.5 Implementation
Rule, the submitted SIP revision changes include incorporating by
reference Federal rule changes through July 1, 2011. The submission is
being updated for consistency with 40 CFR 52.21, which established the
requirement for NSR permits to address directly emitted
PM2.5 and precursor pollutants and promulgated significant
emissions rates, and condensables for direct PM2.5 and
precursor pollutants (SO2 and NOX).
    As described under element C in section V of this rulemaking,
states had an obligation to address condensable PM emissions as a part
of the 2008 PM2.5 NSR implementation rule. In Kansas' March
1, 2013, SIP submission, Kansas incorporated by reference EPA's
definition for regulated NSR pollutant (formerly at 40 CFR
51.166(b)(49)(vi)), including the term ``particulate matter
emissions,'' as inadvertently promulgated in the 2008 NSR Rule. EPA is,
however, proposing to approve into the Kansas SIP the requirement that
condensable PM be accounted for in applicability determinations and in
establishing emissions limitations for PM2.5 and
PM10 because it is more stringent than the Federal
requirement. Kansas can choose to initiate further rulemaking to ensure
consistency with federal requirements.
    Specifically, regarding the PSD increments, the submitted SIP
revision changes include: (1) The PM2.5 increments as
promulgated at 40 CFR 51.166(c)(1) and (p)(4) (for Class I Variances)
and (2) amendments to the terms ``major source baseline date'' (at 40
CFR 51.166(b)(14)(i)(c)) and 52.21(b)(14)(i)(c)), ``minor source
baseline date'' (including establishment of the ``trigger date'') and
``baseline area'' (as amended at 40 CFR 51.166(b)(15)(i) and (ii) and
52.21(b)(15)(i)). In the March 1, 2013, SIP revision, Kansas
incorporates by reference into the SIP the particular definitions from
40 CFR part 51 as referenced above through July 1, 2011.
    In today's action, EPA is proposing to approve Kansas' March 1,
2013, revisions to address the provisions relating to both the 2008
PM2.5 NSR implementation and the 2010 PM2.5 PSD
Increments SILs-SMC Rules, except as identified in Kansas' April 2,
2013, letter where Kansas amended and clarified its submission so that
it was no longer intending to include specific provisions relating to
the SILs and SMC affected by the January 22, 2013, court decision
referenced above. As noted in EPA's May 29, 2007, final action on
Kansas' PSD program (72 FR 29429), provisions of the incorporated 2002
NSR reform rule relating to the Clean Unit Exemption, Pollution Control
Projects, (PCPs) and exemption from the

recordkeeping provisions for certain sources using the actual-to-
projected-actual emissions projections test are not SIP approved
because in 2005 the DC Circuit Court vacated portions of the rule
pertaining to clean units and PCPs, and remanded portions of the rule
regarding recordkeeping. In addition, EPA did not approve Kansas' rule
incorporating EPA's 2007 revision of the definition of ``chemical
processing plants'' (the ``Ethanol Rule,'') (72 FR 24060, May 1, 2007)
or EPA's 2008 ``fugitive emissions rule,'' (73 FR 77882, December 19,
2008). Otherwise, Kansas' revisions also incorporate by reference the
other provisions of 40 CFR 52.21 as in effect on July 1, 2011.

VII. What are the additional provisions of the March 1, 2013, SIP
submission that EPA is proposing to take action on?

    Within Kansas' March 1, 2013, SIP submission, Kansas amended rule
KAR 28-19-350 ``Prevention of Significant Deterioration (PSD) of Air
Quality,'' to defer the application of the PSD permitting requirements
to CO2 emissions from bioenergy and other biogenic
stationary sources pursuant to the July 20, 2011, EPA final rulemaking
``Deferral for Carbon Dioxide (CO2) Emissions from Bioenergy
and other Biogenic Sources Under the Prevention of Significant
Deterioration (PSD) and Title V Programs'' (see 76 FR 43490). The
Biomass Deferral delays until July 21, 2014, the consideration of
CO2 emissions from bioenergy and other biogenic sources
(hereinafter referred to as ``biogenic CO2 emissions'') when
determining whether a stationary source meets the PSD and Title V
applicability thresholds, including those for the application of Best
Available Control Technology (BACT). Stationary sources that combust
biomass (or otherwise emit biogenic CO2 emissions) and
construct or modify during the deferral period will avoid the
application of PSD to the biogenic CO2 emissions resulting
from those actions. The deferral applies only to biogenic
CO2 emissions and does not affect non-GHG pollutants or
other GHG's (e.g., methane (CH4) and nitrous oxide
(N2O)) emitted from the combustion of biomass fuel. Also,
the deferral only pertains to biogenic CO2 emissions in the
PSD and Title V programs and does not pertain to any other EPA programs
such as the GHG Reporting Program. Biogenic CO2 emissions
are defined as emissions of CO2 from a stationary source
directly resulting from the combustion or decomposition of
biologically-based materials other than fossil fuels and mineral
sources of carbon. Examples of ``biogenic CO2 emissions''
include, but are not limited to:
     CO2 generated from the biological decomposition
of waste in landfills, wastewater treatment or manure management
processes;
     CO2 from the combustion of biogas collected
from biological decomposition of waste in landfills, wastewater
treatment or manure management processes;
     CO2 from fermentation during ethanol production
or other industrial fermentation processes;
     CO2 from combustion of the biological fraction
of municipal solid waste or biosolids;
     CO2 from combustion of the biological fraction
of tire-derived fuel; and
     CO2 derived from combustion of biological
material, including all types of wood and wood waste, forest residue,
and agricultural material.
    EPA recognizes that use of certain types of biomass can be part of
the national strategy to reduce dependence on fossil fuels. Efforts are
underway at the Federal, state and regional level to foster the
expansion of renewable resources and promote bioenergy projects when
they are a way to address climate change, increase domestic alternative
energy production, enhance forest management and create related
employment opportunities.
    For stationary sources co-firing fossil fuel and biologically-based
fuel, and/or combusting mixed fuels (e.g., tire derived fuels,
municipal solid waste (MSW)), the biogenic CO2 emissions
from that combustion are included in the biomass deferral. However, the
fossil fuel CO2 emissions are not. Emissions of
CO2 from processing of mineral feedstocks (e.g., calcium
carbonate) are also not included in the deferral. Various methods are
available to calculate both the biogenic and fossil fuel portions of
CO2 emissions, including those methods contained in the GHG
Reporting Program (40 CFR part 98). Consistent with the other
pollutants in PSD and Title V, there are no requirements to use a
particular method in determining biogenic and fossil fuel
CO2 emissions.
    EPA's final biomass deferral rule is an interim deferral for
biogenic CO2 emissions only and does not relieve sources of
the obligation to meet the PSD and Title V permitting requirements for
other pollutant emissions that are otherwise applicable to the source
during the deferral period or that may be applicable to the source at a
future date pending the results of EPA's study and subsequent
rulemaking action. This means, for example, that if the deferral is
applicable to biogenic CO2 emissions from a particular
source during the three-year effective period and the study and
potential future rulemaking do not provide for a permanent exemption
from PSD and Title V permitting requirements for the biogenic
CO2 emissions from a source with particular characteristics,
then the deferral would end for that type of source and its biogenic
CO2 emissions would have to be appropriately considered in
any applicability determinations that the source may need to conduct
for future stationary source permitting purposes, consistent with the
potential subsequent rulemaking and the Final Tailoring Rule (e.g., a
major source determination for Title V purposes or a major modification
determination for PSD purposes).
    EPA also wishes to clarify that we do not require that a PSD permit
issued during the deferral period be amended or that any PSD
requirements in a PSD permit existing at the time the deferral took
effect, such as BACT limitations, be revised or removed from an
effective PSD permit for any reason related to the deferral or when the
deferral period expires. The regulation at 40 CFR 52.21(w) requires
that any PSD permit shall remain in effect, unless and until it expires
or it is rescinded, under the limited conditions specified in that
provision. Thus, a PSD permit that is issued to a source while the
deferral was effective need not be reopened or amended if the source is
no longer eligible to exclude its biogenic CO2 emissions
from PSD applicability after the deferral expires. However, if such a
source undertakes a modification that could potentially require a PSD
permit and the source is not eligible to continue excluding its
biogenic CO2 emissions after the deferral expires, the
source will need to consider its biogenic CO2 emissions in
assessing whether it needs a PSD permit to authorize the modification.
    Any future actions to modify, shorten, or make permanent the
deferral for biogenic sources are beyond the scope of the Biomass
Deferral action and this proposed approval of the deferral into the
Kansas SIP, and will be addressed through subsequent rulemaking. The
results of EPA's review of the science related to net atmospheric
impacts of biogenic CO2 and the framework to properly
account for such emissions in Title V and PSD permitting programs based
on the study are prospective and unknown. Thus, we are unable to
predict which biogenic CO2 sources, if any, currently
subject to the deferral as incorporated into the Kansas SIP could be
subject to any permanent

exemptions, or which currently deferred sources could be potentially
required to account for their emissions.
    Similar to our approach with the Tailoring Rule, EPA incorporated
the biomass deferral into the regulations governing state programs and
into the Federal PSD program by amending the definition of ``subject to
regulation'' under 40 CFR 51.166 and 40 CFR 52.21 respectively. Kansas
implements its PSD program by incorporating section 52.21 by reference
in KAR 28-19-350. The Kansas submission incorporates by reference the
(CFR) through July 1, 2011, in order to adopt the Biomass Deferral.
    Based upon EPA's analysis of the required provisions of the July
20, 2011 Biomass Deferral rule and how Kansas meets these requirements,
EPA is proposing to approve the March 1, 2013, Kansas SIP revision in
order to adopt the Biomass Deferral.

VIII. What action is EPA proposing?

    EPA proposes to approve the infrastructure SIP submissions from
Kansas which address the requirements of CAA sections 110(a)(1) and (2)
as applicable to the 1997 and 2006 NAAQS for PM2.5. Based
upon review of the State's infrastructure SIP submissions for the 1997
and 2006 PM2.5 NAAQS, 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 1997 and
2006 PM2.5 NAAQS are implemented in the state.
    In addition, EPA proposes to approve two additional SIP submissions
from Kansas, one addressing the Prevention of Significant Deterioration
(PSD) program in Kansas as it relates to PM2.5 (unless
otherwise noted) and another SIP revision addressing the requirements
of section 128 of the CAA, both of which support the requirements
associated with infrastructure SIPs.
    We are hereby soliciting comment on this proposed action. Final
rulemaking will occur after consideration of any comments.

IX. 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.

X. 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, Ozone, Particulate matter,
Reporting and recordkeeping requirements.

    Dated: April 5, 2013.
Karl Brooks,
Regional Administrator, Region 7.
[FR Doc. 2013-09053 Filed 4-16-13; 8:45 am]
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