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Approval and Promulgation of Implementation Plans and Section 112(l) Program for the Issuance of Federally Enforceable State Operating Permits; State of Kansas
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: July 17, 1995 (Volume 60, Number 136)]
[Rules and Regulations]
[Page 36361-36364]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[KS-5-1-6958a; FRL-5250-4]
Approval and Promulgation of Implementation Plans and Section
112(l) Program for the Issuance of Federally Enforceable State
Operating Permits; State of Kansas
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
SUMMARY: This final action approves a revision to the State
Implementation Plan (SIP) submitted by Kansas. The state's revision
includes the creation of a class II operating permit program, and
revisions and additions to existing SIP rules. The approval of the
class II permitting program authorizes Kansas to issue Federally
enforceable state operating permits addressing both criteria pollutants
(regulated under section 110 of the Clean Air Act) and hazardous air
pollutants (regulated under section 112).
DATES: This final rule is effective September 15, 1995 unless by August
16, 1995 adverse or critical comments are received.
ADDRESSES: Comments may be mailed to Wayne A. Kaiser, Environmental
Protection Agency, Air Branch, 726 Minnesota Avenue, Kansas City,
Kansas 66101.
Copies of the documents relevant to this action are available for
public inspection during normal business hours at the: Environmental
Protection Agency, Air Branch, 726 Minnesota Avenue, Kansas City,
Kansas 66101; and EPA Air and Radiation Docket and Information Center,
401 M Street, SW., Washington, DC 20460.
FOR FURTHER INFORMATION CONTACT: Wayne A. Kaiser at (913) 551-7603.
SUPPLEMENTARY INFORMATION:
I. Background
Kansas recently restructured its air program rules as a result of
the need to develop a major source operating permit program consistent
with the requirements of 40 CFR part 70. Consequently, the state
created a three-tiered permit program: class I, class II, and class
III. Class I permits will be issued to part 70 major sources, class II
permits to nonmajor sources and to those willing to take Federally
enforceable operating restrictions to limit their potential-to-emit to
nonmajor source levels, and class III permits for all other emission
sources (i.e., sources with emission levels lower than the class II
cutoff levels). This SIP revision includes revisions to existing SIP
rules, including the definitions rule and construction permits rules,
and new rules which create general permits and class II operating
permits, including permits-by-rule. These rule revisions are the result
of three state rulemakings, effective in 1993, 1994, and 1995.
On February 17, 1995, the Secretary of the Kansas Department of
Health and Environment (designee of the Governor) submitted the SIP
revision and supporting information to the EPA Region VII
Administrator. In a supplemental letter dated March 8, 1995, the state
also requested that EPA approve the class II permitting rules under the
authority of section 112(l) for the purpose of conferring Federally
enforceable limitations on hazardous air pollutants (HAP). EPA's review
and analysis of the entire state submittal is discussed below.
For a more detailed discussion, please refer to the Technical
Support Document (TSD) prepared for this document, which is available
from the contact listed above.
II. Review of State Submittal
A. Rule Revisions
K.A.R. 28-19-7, Definitions. Over 30 definitions were revised or
added. New definitions were necessary due to the adoption of the Title
V permitting rules and the related class II permitting rules. Some
definitions were simply moved from existing rules to the definitions
rule for the purpose of consolidating all definitions in one rule.
Other revisions were nonsubstantive grammatical or clarifying
revisions. A detailed discussion of each revision to this rule is
contained in the TSD.
K.A.R. 28-19-8, Reporting required. This regulation formerly
described emission levels which triggered requirements to obtain
construction and operating permits and approvals. Revisions were
required to remove those provisions relating to operating permits that
now appear in regulations relating specifically to the new class I and
class II operating permits programs.
K.A.R. 28-19-14, -14a, -14b, pertaining to permits and fees. These
were revised because most of these provisions are now contained in new
rules. Rule K.A.R. 28-19-14b was revoked in the 1994 revision, and -14a
was revised in 1994 and revoked in 1995.
K.A.R. 28-19-204, General provisions, permit issuance and
modification; public participation. This new regulation includes
general requirements for public participation in the permitting
process, including construction permits and class II operating permits.
K.A.R. 28-19-212, General provisions; approved test methods and
emission compliance determination procedures. This rule includes most
test methods required by other rules, including adoption by reference
of methods in 40 CFR parts 51, 60, 61, and 63. In 58 FR 54677 (October
22, 1993), the EPA announced that SIP calls pursuant to section
110(k)(5) of the Act would be issued in order to implement the
monitoring requirements of section 114(a)(3), including the periodic
monitoring requirements for operating permits pursuant to sections
502(b)(2) and 504. This SIP call is required, because existing SIPs are
inadequate in that they may be interpreted to limit the types of
testing or monitoring data that may be used for determining compliance
and establishing violations.
On May 6, 1994, the EPA notified the Governor of Kansas that an SIP
revision was necessary to meet the
[[Page 36362]]
aforementioned requirements of the Act. Submission of this rule
revision fulfills this requirement. This revision provides that any
credible evidence may be used for the purpose of establishing whether a
violation has occurred at the source.
K.A.R. 28-19-300 through 304. These regulations establish the
procedures applicable to the issuance of permits and approvals to
construct or modify new air sources. Major portions of these provisions
were formerly contained in K.A.R. 28-19-8 and K.A.R. 28-19-14. The
threshold criteria pollutant emission levels for obtaining a
construction permit (K.A.R. 28-19-300(a)(1)) have been increased to
make them consistent with prevention of significant deterioration (PSD)
levels. Changing these threshold emission levels will not threaten
maintenance of the ambient air quality standards in the state. Air
quality modeling for criteria pollutants has been performed in
connection with new and modified source permit applications over the
past 10 years. The modeling results demonstrate that sources with a
potential-to-emit of less than the PSD significance levels have not
threatened the maintenance of air quality in Kansas.
K.A.R. 28-19-300(b)(1) establishes the emissions thresholds for a
construction approval. These thresholds are unchanged from K.A.R. 28-
19-8 with the exception of particulate matter for nonagricultural
operations. That threshold has been changed from one or more pounds of
particulate matter, including but not limited to PM<INF>10, during any
one hour of operation, to the potential-to-emit either five pounds per
hour of particulate matter or two pounds per hour of PM<INF>10. Based
on prior modeling of sources of this size, Kansas has determined that
this change does not threaten maintenance of the National Ambient Air
Quality Standards.
K.A.R. 28-19-302 provides for a construction permit to include a
Federally enforceable operational restriction or permit conditions
regarding air pollution control equipment in order to reduce the
potential-to-emit. This allows sources to take Federally enforceable
permit restrictions to reduce their potential-to-emit at the
construction stage. The restrictions must meet the state's requirements
for Federally enforceable operating permits in K.A.R. 28-19-501(b),
discussed below.
K.A.R. 28-19-400 through 404. These regulations establish
procedures and conditions for the state to develop and issue general
construction permits and class II general operating permits covering
numerous similar sources. Sources that qualify for a general permit
would then apply for coverage under the terms of the general permit.
Under the Kansas regulations, general construction permits must be
approved by EPA as SIP revisions before any source may construct under
the permit.
K.A.R. 28-19-500 through 502. These rules establish the general
framework for eligibility of a source for a class I or class II
operating permit.
K.A.R. 28-19-540 through 546. These rules establish the class II
operating permit procedures available for sources that would otherwise
be required to obtain a class I permit.
K.A.R. 28-19-561 through 563. These rules establish the conditions
for issuance of a permit-by-rule to specific source categories. These
source categories may limit their potential-to-emit to a level that
removes them from the class I program, provided that the source meets
the criteria established in these regulations and complies with the
recordkeeping and reporting provisions, if applicable. The three source
categories for which permit-by-rule are available are: reciprocating
engines, organic solvent evaporative sources, and hot mix asphalt
facilities.
B. Class II Operating Permit Program
For many years, Kansas has been issuing permits for major new
sources and for major modifications of existing sources. Throughout
this time, Kansas has also been issuing permits establishing
limitations on the potential emissions from new sources so as to avoid
major source permitting requirements. This latter type of permitting
has been the subject of various guidance from EPA, most notably the
memorandum entitled ``Guidance on Limiting Potential to Emit in New
Source Permitting'' dated June 13, 1989.
The operating permit provisions in Title V of the Clean Air Act
Amendments of 1990 have created interest in mechanisms for limiting
sources' potential-to-emit, thereby allowing the sources to avoid being
defined as ``major'' with respect to Title V operating permit programs.
A key mechanism for such limitations is the use of Federally
enforceable state operating permits (FESOP). EPA issued guidance on
FESOPs in the Federal Register of June 28, 1989 (54 FR 27274). On
February 17, 1995, Kansas submitted its newly adopted class II
permitting rules to provide for FESOPs in Kansas. This rule would
supplement the preexisting mechanism for establishing Federally
enforceable limitations on potential-to-emit (i.e., new source
permits). This rulemaking evaluates whether Kansas has satisfied the
requirements for this type of Federally enforceable limitation on
potential-to-emit.
As specified in the Federal Register of June 28, 1989, there are
five criteria that a state must meet in order to achieve a Federally
enforceable operating permit program which is approved into the SIP.
These criteria apply to both the class II program and to the request
for approval under section 112(l), discussed below. The state of Kansas
has met this criteria by: (1) Submitting this program for approval; (2)
imposing a legal obligation that operating permit holders adhere to the
terms and limitations of their permits (K.A.R. 28-19-501); (3)
requiring that all emissions limitations, controls, and other
requirements imposed by permits will be at least as stringent as any
other applicable limitations and requirements contained in or
enforceable under the SIP (K.A.R. 28-19-501(b)(1) and (2); (4) further
requiring the limitations, controls, and requirements of the permits to
be permanent, quantifiable, and otherwise enforceable as a practical
matter (K.A.R. 28-19-501(b)(3)); and (5) providing that the permits
issued are subject to public participation and EPA review (K.A.R. 28-
19-501(e)).
The June 28, 1989, Federal Register document also states that EPA
may deem permit restrictions not to be Federally enforceable if the
criteria are not met. Although the Kansas regulation does not expressly
provide for this, EPA is including a provision in the rulemaking
portion of this document clarifying that nonconforming permit
requirements may be deemed not Federally enforceable.
The reader may consult the TSD for a fuller description of how the
state has met these criteria.
C. Section 112(l) Authority
Kansas has also requested that EPA authorize Federally enforceable
limitations on potential-to-emit both pollutants regulated under
section 110 of the Act (``criteria pollutants'') and pollutants
regulated under section 112 (HAPs). As discussed above, the June 28,
1989, Federal Register document provided five specific criteria for
approval of state operating permit programs for the purpose of
establishing Federally enforceable limits on a source's potential-toemit.
This 1989 document, because it was written prior to the 1990
Amendments, addressed only SIP programs to control criteria pollutants.
Federally enforceable limits on criteria pollutants (especially
volatile organic compounds (VOC) and
[[Page 36363]]
particulate matter) may have the incidental effect of limiting certain
HAPs listed pursuant to section 112(b). This situation would occur when
a pollutant classified as an HAP is also classified as a criteria
pollutant (e.g., benzene).<SUP>1 As a legal matter, no additional
program approval by EPA is required in order for these criteria
pollutant limits to be recognized for this purpose.
\1\ EPA intends to issue guidance addressing the technical
aspects of how these criteria pollutant limits may be recognized for
purposes of limiting a source's potential-to-emit of HAPs to below
section 112 major source levels.
EPA has determined that the five approval criteria for approving
FESOP programs into the SIP, as specified in the June 28, 1989, Federal
Register document, are also appropriate for evaluating and approving
the programs under section 112(l). The June 28, 1989, document does not
address HAPs because it was written prior to the 1990 Amendments to
section 112, and not because it establishes requirements unique to
criteria pollutants. Hence, the five criteria discussed above are
applicable to FESOP approvals under section 112(l) as well as under
section 110.
In addition to meeting the criteria in the June 28, 1989, document,
an FESOP program for HAPs must meet the statutory criteria for approval
under section 112(l)(5). This section allows EPA to approve a program
only if it: (1) Contains adequate authority to ensure compliance with
any section 112 standards or requirements; (2) provides for adequate
resources; (3) provides for an expeditious schedule for ensuring
compliance with section 112 requirements; and (4) is otherwise likely
to satisfy the objectives of the Act.
EPA plans to codify the approval criteria for programs limiting
potential-to-emit HAPs in subpart E of part 63, the regulations
promulgated to implement section 112(l) of the Act. EPA currently
anticipates that these criteria, as they apply to FESOP programs, will
mirror those set forth in the June 28, 1989, document, with the
addition that the state's authority must extend to HAPs instead of, or
in addition to, VOCs and particulate matter. EPA currently anticipates
that FESOP programs that are approved pursuant to section 112(l) prior
to the subpart E revisions will have had to meet these criteria and,
hence, will not be subject to any further approval action.
EPA believes it has authority under section 112(l) to approve
programs to limit potential-to-emit HAPs directly under section 112(l)
prior to this revision to subpart E. Section 112(l)(5) requires EPA to
disapprove programs that are inconsistent with guidance required to be
issued under section 112(l)(2). This might be read to suggest that the
``guidance'' referred to in section 112(l)(2) was intended to be a
binding rule. Even under this interpretation, EPA does not believe that
section 112(l) requires this rulemaking to be comprehensive. That is,
it need not address all instances of approval under section 112(l). EPA
has already issued regulations under section 112(l) that would satisfy
this requirement. Given the severe timing problems posed by impending
deadlines under section 112 and Title V, EPA believes it is reasonable
to read section 112(l) to allow for approval of programs to limit
potential-to-emit prior to issuance of a rule specifically addressing
this issue.
Kansas' satisfaction of the criteria published in the Federal
Register of June 28, 1989, has been discussed above. In addition,
Kansas' FESOP program meets the statutory criteria for approval under
section 112(l)(5). EPA believes that Kansas has adequate authority to
ensure compliance with section 112 requirements since the third
criteria of the June 28, 1989, document is met (that is, since the
program does not provide for waiving any section 112 requirement).
Nonmajor sources would still be required to meet applicable section 112
requirements.
Regarding adequate resources, Kansas has included in its request
for approval under section 112(l) a commitment to provide adequate
resources to implement and enforce the program, which will be obtained
from fees collected under Title V. EPA believes that this mechanism
will be sufficient to provide for adequate resources to implement this
program, and will monitor the state's implementation of the program to
ensure that adequate resources continue to be available.
Kansas' FESOP program also meets the requirement for an expeditious
schedule for ensuring compliance. A source seeking a voluntary limit on
potential-to-emit is probably doing so to avoid a Federal requirement
applicable on a particular date. Nothing in this program would allow a
source to avoid or delay compliance with the Federal requirement if it
fails to obtain the appropriate Federally enforceable limit by the
relevant deadline.
Finally, Kansas' FESOP program is consistent with the objectives of
the section 112 program, since its purpose is to enable sources to
obtain Federally enforceable limits on potential-to-emit to avoid major
source classification under section 112. EPA believes this purpose is
consistent with the overall intent of section 112. Accordingly, EPA
finds that Kansas' program satisfies applicable criteria for
establishing Federally enforceable limitations on potential to emit
both criteria and hazardous air pollutants.
III. Rulemaking Action
EPA finds that the criteria for Kansas to be able to issue FESOPs
are essentially met, and is today approving its rules pertaining to its
class II permitting program, as well as approving those rules under the
authority of section 112(l). EPA is also approving the additional rules
submitted for approval in the SIP.
The EPA is publishing this action without prior proposal because
the Agency views this as a noncontroversial amendment and anticipates
no adverse comments. However, in a separate document in the Federal
Register publication, the EPA is proposing to approve the SIP revision
should adverse or critical comments be filed.
If the EPA receives such comments, this action will be withdrawn
before the effective date by publishing a subsequent document that will
withdraw the final action. All public comments received will then be
addressed in a subsequent final rule based on this action serving as a
proposed rule. The EPA will not institute a second comment period on
this action. Any parties interested in commenting on this action should
do so at this time.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any SIP. Each request for revision to the SIP shall be
considered separately in light of specific technical, economic, and
environmental factors and in relation to relevant statutory and
regulatory requirements.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities (5 U.S.C. 603 and 604).
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
SIP approvals under section 110 and subchapter I, part D of the CAA
do not create any new requirements, but simply approve requirements
that the state is already imposing. Therefore, because the Federal SIP
approval does not impose any new requirements, EPA certifies that it
does not have a
[[Page 36364]]
significant impact on any small entities affected. Moreover, due to the
nature of the Federal-state relationship under the CAA, preparation of
a regulatory flexibility analysis would constitute Federal inquiry into
the economic reasonableness of state action. The CAA forbids EPA to
base its actions concerning SIPs on such grounds (Union Electric Co. v.
U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42 U.S.C. 7410(a)(2)).
The Office of Management and Budget has exempted these actions from
review under Executive Order 12866.
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by September 15, 1995. 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).)
Under sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,
1995, EPA must undertake various actions in association with proposed
or final rules that include a Federal mandate that may result in
estimated costs of $100 million or more to the private sector, or to
state, local, or tribal governments in the aggregate.
Through submission of this SIP, the state and any affected local
governments have elected to adopt the program provided for under
section 110 of the Clean Air Act. These rules may bind state and local
governments to perform certain actions and also require the private
sector to perform certain duties. To the extent that the rules being
finalized for approval by this action will impose new requirements,
sources are already subject to these regulations under state law.
Accordingly, no additional costs to state or local governments, or to
the private sector, result from this action. EPA has also determined
that this final action does not include a mandate that may result in
estimated costs of $100 million or more to state or local governments
in the aggregate or to the private sector.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Dated: June 21, 1995.
Dennis Grams,
Regional Administrator.
Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart R--Kansas
2. Section 52.870 is amended by adding paragraph (c)(30) to read as
follows:
Sec. 52.870 Identification of plan.
* * * *
(c) * * *
(30) On February 17, 1995, the Secretary of the Kansas Department
of Health and Environment (KDHE) submitted for approval numerous rule
revisions which add and revise definitions, revise the Kansas
construction permit program, and create a class II operating permit
program.
(i) Incorporation by reference.
(A) Revised rules K.A.R. 28-19-7 effective November 22, 1993;
K.A.R. 28-19-8 effective January 23, 1995; K.A.R. 28-19-14 effective
January 24, 1994; and the revocation of K.A.R. 28-19-14a effective
January 23, 1995; and the revocation of K.A.R. 28-19-14b effective
January 24, 1994.
(B) New rules K.A.R. 28-19-204, 212, 300, 301, 302, 303, 304, 400,
401, 402, 403, 404, 500, 501, 502, 540, 541, 542, 543, 544, 545, 546,
561, 562, and 563 effective January 23, 1995.
Section 52.872 is added to read as follows:
Sec. 52.872 Operating permits.
Emission limitations and related provisions which are established
in Kansas operating permits as Federally enforceable conditions shall
be enforceable by EPA. EPA reserves the right to deem permit conditions
not Federally enforceable. Such a determination will be made according
to appropriate procedures and be based upon the permit, permit approval
procedures, or permit requirements which do not conform with the
operating permit program requirements or the requirements of EPA
underlying regulations.
[FR Doc. 95-17214 Filed 7-14-95; 8:45 am]
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