

[Federal Register: March 9, 2007 (Volume 72, Number 46)]
[Rules and Regulations]               
[Page 10608-10610]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09mr07-12]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R07-OAR-2007-0141; FRL-8286-3]

 
Approval and Promulgation of Implementation Plans; Kansas; 
Interstate Transport of Pollution

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is revising the Kansas State Implementation Plan (SIP) for 
the purpose of approving the Kansas Department of Health and 
Environment's (KDHE) actions to address the ``good neighbor'' 
provisions of the Clean Air Act Section 110(a)(2)(D)(i). These 
provisions require each state to submit a SIP that prohibits emissions 
that adversely affect another state's air quality through interstate 
transport. KDHE has adequately addressed the four distinct elements 
related to the impact of interstate transport of air pollutants. These 
include prohibiting significant contribution to downwind nonattainment 
of the National Ambient Air Quality Standards (NAAQS), interference 
with maintenance of the NAAQS, interference with plans in another state 
to prevent significant deterioration of air quality, and efforts of 
other states to protect visibility. The requirements for public 
notification were also met by KDHE.

DATES: This direct final rule will be effective May 8, 2007, without 
further notice, unless EPA receives adverse comment by April 9, 2007. 
If adverse comment is received, EPA will publish a timely withdrawal of 
the direct final rule in the Federal Register informing the public that 
the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R07-
OAR-2007-0141, by one of the following methods:
    1. http://www.regulations.gov. Follow the on-line instructions for 

submitting comments.
    2. E-mail: jay.michael@epa.gov.
    3. Mail: Michael Jay, Environmental Protection Agency, Air Planning 
and Development Branch, 901 North 5th Street, Kansas City, Kansas 
66101.
    4. Hand Delivery or Courier. Deliver your comments to Michael Jay, 
Environmental Protection Agency, Air Planning and Development Branch, 
901 North 5th Street, Kansas City, Kansas 66101.
    Instructions: Direct your comments to Docket ID No. EPA-R07-OAR-
2007-0141. 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 e-mail information that you consider to be CBI 

or otherwise protected. The http://www.regulations.gov website 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 e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail 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 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, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in http://www.regulations.gov
 or in hard copy at the Environmental Protection 

Agency, Air Planning and Development Branch, 901 North 5th Street, 
Kansas City, Kansas 66101. The Regional Office's official hours of 
business are Monday through Friday, 8 to 4:30 excluding Federal 
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: Michael Jay at (913) 551-7460, or by 
e-mail at jay.michael@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This section provides 
additional information by addressing the following questions:

    What is being addressed in this document?
    What action is EPA taking?

What is being addressed in this document?

    EPA is revising the SIP for the purpose of approving the KDHE's 
actions to address the requirements of the Clean Air Act (CAA) section 
110(a)(2)(D)(i). This CAA section requires each state to submit a SIP 
that

[[Page 10609]]

prohibits emissions that could adversely affect another state. The SIP 
must prevent sources in the state from emitting pollutants in amounts 
which will: (1) Contribute significantly to downwind nonattainment of 
the NAAQS, (2) interfere with maintenance of the NAAQS, (3) interfere 
with provisions to prevent significant deterioration of air quality, 
and (4) interfere with efforts to protect visibility.
    EPA issued guidance on August 15, 2006, relating to SIP submissions 
to meet the requirements of section 110(a)(2)(D)(i). As discussed 
below, Kansas' analysis of its SIP with respect to the statutory 
requirements is consistent with the guidance.
    The KDHE has addressed the first two of these elements by 
submitting a technical demonstration supporting the conclusion that 
emissions from Kansas do not significantly contribute to downwind 
nonattainment or interfere with maintenance of the NAAQS in another 
state. For PM2.5, the state has relied upon existing EPA 
Clean Air Interstate Rule (CAIR) modeling that determined impacts from 
the state do not meet or exceed the 0.2 [mu]g/m3 average 
annual threshold that EPA established to determine significant impact 
on another state in the projection year 2010. The state indicated that 
in EPA's CAIR modeling, Kansas' maximum downwind contribution to 
average annual nonattainment was 0.11 [mu]g/m3 (70 FR 
25247). The state has relied on this result to demonstrate that 
emissions from the state do not contribute significantly to downwind 
nonattainment of the annual PM2.5 standard.
    For 8-hour ozone, the state was unable to rely on EPA CAIR modeling 
to determine the state's impact on projected 8-hour ozone nonattainment 
in downwind states. The EPA CAIR 8-hour ozone modeling domain did not 
include the entire state. As a result, impacts from the state were not 
provided in the analyses. Therefore, the state has provided additional 
analyses, as part of the technical demonstration, to support a negative 
declaration that the state contributes significantly to projected 
downwind 8-hour ozone nonattainment in the year 2010.
    The technical demonstration includes analyses on a number of EPA 
guidance elements. For example, the technical demonstration includes a 
backtrajectory analysis to examine Kansas' impacts on the nearest EPA 
projected 8-hour ozone nonattainment area for the year 2010. CAIR 
modeling projects the ozone nonattainment counties nearest to Kansas 
will be Kenosha and Ozaukee, Wisconsin. The backtrajectory analysis 
revealed that relatively few air masses pass over Kansas prior to 
arriving to these counties during high ozone days, thus demonstrating 
that emissions from Kansas have a minimal contribution to the 8-hour 
ozone nonattainment of the two counties. Additionally, the state has 
emphasized that St. Louis, Missouri, the nearest current nonattainment 
area, is projected by EPA to be in attainment of the 8-hour ozone 
standard in the year 2010. Based on this and other information provided 
by the state in the technical demonstration, EPA believes the state has 
sufficiently demonstrated that emissions from the state do not 
significantly contribute to downwind nonattainment or interfere with 
maintenance of the NAAQS. Additional supporting information can be 
found in the state's technical demonstration included in the docket.
    The third element KDHE addressed was prevention of significant 
deterioration (PSD). For 8-hour ozone, the state has met the obligation 
by confirming that major sources in the state are currently subject to 
PSD programs that implement the 8-hour ozone standard and that the 
state is on track to meet the June 15, 2007, deadline for SIP 
submissions adopting any relevant requirements of the Phase II ozone 
implementation rule. For PM2.5, the state has confirmed that 
the state's PSD program is being implemented in accordance with EPA's 
interim guidance calling for the use of PM10 as a surrogate 
for PM2.5 for the purposes of PSD review. Once 
PM2.5 guidance is finalized by EPA, KDHE commits to 
transitioning from use of the interim PM2.5 guidance to the 
final PM2.5 implementation guidance after approval of the 
PM2.5 SIP revision. The submittal is due in April 2008.
    It should be noted that Kansas is currently designated attainment 
for both the 8-hour ozone and PM2.5 National Ambient Air 
Quality Standards.
    At this time, it is not possible for KDHE to accurately determine 
whether there is interference with measures in another state's SIP 
designed to protect visibility, which is the fourth element that was 
addressed. Technical projects relating to visibility degradation 
source-receptor relationships are under development. Kansas will be in 
a more advantageous position to address the visibility projection 
requirements once the initial regional haze SIP has been developed. 
KDHE intends to meet the December 17, 2007, submittal deadline for the 
regional haze SIP.
    A public hearing with regard to this action was held by the state. 
No comments were received.
    With this action, the non-regulatory text in 40 CFR 52.870(e) is 
revised to reflect that KDHE addressed the elements of the CAA section 
110(a)(2)(D)(i) submittal.

What action is EPA taking?

    EPA is approving this revision submitted by Kansas and is revising 
40 CFR 52.870 to reflect that the KDHE has adequately addressed the 
required elements of the CAA section 110(a)(2)(D)(i) SIP. Please note 
that if EPA receives adverse comments on part of this rule, and if that 
part can be severed from the remainder of the rule, EPA may adopt as 
final those parts of the rule that are not the subject of an adverse 
comment.

Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this action will not have 
a significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this action approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it 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).
    This action also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255,

[[Page 10610]]

August 10, 1999). This action merely approves a state rule implementing 
a Federal standard, and does not alter the relationship or the 
distribution of power and responsibilities established in the CAA. This 
action also is not subject to Executive Order 13045, ``Protection of 
Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997), because it approves a state rule implementing a 
Federal standard.
    In reviewing state submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. In this 
context, in the absence of a prior existing requirement for the State 
to use voluntary consensus standards (VCS), EPA has no authority to 
disapprove a state submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a state 
submission, to use VCS in place of a state submission that otherwise 
satisfies the provisions of the CAA. Thus, the requirements of section 
12(d) of the National Technology Transfer and Advancement Act of 1995 
(15 U.S.C. 272 note) do not apply. This action does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by May 8, 2007. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Sulfur 
oxides, Volatile organic compounds.

    Dated: February 27, 2007.
John B. Askew,
Regional Administrator, Region 7.

0
Chapter I, title 40 of the Code of Federal Regulations is amended as 
follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart Q--Kansas

0
2. In Sec.  52.870(e) the table is amended by adding an entry in 
numerical order to read as follows:


Sec.  52.870  Identification of plan.

* * * * *
    (e) * * *

                                                      EPA-Approved Kansas Nonregulatory Provisions
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                                             Applicable geographic or            State
 Name of nonregulatory SIP provision            nonattainment area          submittal date      EPA approval date                 Explanation
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                                                                      * * * * * * *
(30) CAA 110(a)(2)(D)(i) SIP--         Statewide..........................         1/07/07  3/09/07 [insert FR page
 Interstate Transport.                                                                       number where the
                                                                                             document begins].
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 [FR Doc. E7-4304 Filed 3-8-07; 8:45 am]

BILLING CODE 6560-50-P
