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Proposed Rule

Approval and Promulgation of Implementation Plans; State of Kansas

Document Details

Information about this document as published in the Federal Register.

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Start Preamble

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

We, the EPA, are proposing to approve a revision to the plan prepared by Kansas to maintain the 1-hour national ambient air quality standard (NAAQS) for ozone in the Kansas portion of the Kansas City maintenance area through the year 2012. This plan is applicable to Johnson and Wyandotte Counties. This revision is required by the Clean Air Act. A similar notice pertaining to the Missouri portion of the Kansas City maintenance area is being done in conjunction with this document. The effect of this approval is to ensure Federal enforceability of the state air program plan and to maintain consistency between the state-adopted plan and the approved SIP.

DATES:

Comments must be received on or before October 16, 2003.

ADDRESSES:

Comments may be submitted either by mail or electronically. Written comments should be submitted to Leland Daniels, Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101. Electronic comments should be sent either to Leland Daniels at daniels.leland@epa.gov or to http://www.regulations.gov, which is an alternative method for submitting electronic comments to EPA. To submit comments, please follow the detailed instructions described in “What action is EPA taking” in the SUPPLEMENTARY INFORMATION section.

Copies of documents relative to this action are available for public inspection during normal business hours at the above-listed Region 7 location. The interested persons wanting to examine these documents should make an appointment with the office at least 24 hours in advance.

Start Further Info

FOR FURTHER INFORMATION CONTACT:

Leland Daniels at (913) 551-7651, or by e-mail at daniels.leland@epa.gov.

End Further Info End Preamble Start Supplemental Information

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 a SIP? Start Printed Page 54191

What Is the Federal Approval Process for a SIP?

What are the Criteria for Approval of a Maintenance Plan?

What Does Federal Approval of a State Regulation Mean To Me?

What Is in the State's Plan To Maintain the Standard?

Have the Requirements for Approval of a SIP Revision Been Met?

What Action Is EPA Taking?

What Is a SIP?

The Clean Air Act (CAA or Act) at section 110 requires states to develop air pollution regulations and control strategies to ensure that state air quality meets the national ambient air quality standards established by EPA. These ambient standards are established under section 109 of the CAA, and they currently address six criteria pollutants. These pollutants are: Carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide.

Each state must submit these regulations and control strategies to us for approval and incorporation into the Federally-enforceable SIP.

Each Federally-approved SIP protects air quality primarily by addressing air pollution at its point of origin. These SIPs can be extensive, containing state regulations or other enforceable documents and supporting information such as emission inventories, monitoring networks, and modeling demonstrations.

What Is the Federal Approval Process for a SIP?

In order for state regulations to be incorporated into the Federally-enforceable SIP, states must formally adopt the regulations and control strategies consistent with state and Federal requirements. This process generally includes a public notice, public hearing, public comment period, and a formal adoption by a state-authorized rulemaking body.

Once a state rule, regulation, or control strategy is adopted, the state submits it to us for inclusion into the SIP. We must provide public notice and seek additional public comment regarding the proposed Federal action on the state submission. If adverse comments are received, they must be addressed prior to any final Federal action by us.

All state regulations and supporting information approved by EPA under section 110 of the CAA are incorporated into the Federally-approved SIP. Records of such SIP actions are maintained in the Code of Federal Regulations (CFR) at Title 40, Part 52, entitled “Approval and Promulgation of Implementation Plans.” The actual state regulations which are approved are not reproduced in their entirety in the CFR outright but are “incorporated by reference,” which means that we have approved a given state regulation with a specific effective date.

What Are the Criteria for Approval of a Maintenance Plan?

The requirements for the approval and revision of a maintenance plan are found in section 175A of the CAA. A maintenance plan must provide a demonstration of continued attainment including the control measures relied upon, provide contingency measures for the prompt correction of any violation of the standard, provide for continued operation of the ambient air quality monitoring network, provide a means of tracking the progress of the plan, and include the attainment emission inventory and new budgets for motor vehicle emissions.

What Does Federal Approval of a State Regulation Mean to Me?

Enforcement of the state regulation before and after it is incorporated into the Federally-approved SIP is primarily a state responsibility. However, after the regulation is Federally approved, we are authorized to take enforcement action against violators. Citizens are also offered legal recourse to address violations as described in section 304 of the CAA.

What Is in the State's Plan To Maintain the Standard?

For the past ten years, Kansas has had a plan in place to maintain the 1-hour ozone standard in the Kansas portion of the Kansas City maintenance area through 2002. The CAA requires that the maintenance plan be revised to provide for maintenance for ten years after the expiration of the initial maintenance period. Kansas' submittal of December 17, 2002, contained a revised plan that describes what will be done during the next ten-year period to maintain the ozone standard in the Kansas portion of the Kansas City maintenance area through 2012. The following analyses will look at the elements necessary for approval of a maintenance plan and determine if they have been fulfilled.

1. Demonstration of Continued Attainment

This revised plan relies on an attainment level of emissions of volatile organic compounds (VOCs) and nitrogen oxides (NOX) to maintain the ozone standard through a combination of control measures. These measures include stationary, area and mobile source controls. The annual emissions from the entire area for 1999, a period when no excursions or violations of the standard occurred, and 2012, the last year of the maintenance plan, are shown in the table below.

Emissions in the Kansas City Maintenance Area

YearPollutant emission (tons per OSD 1)
VOCNOXCO
1999367.35424.21706.0
2012335.55373.41337.8
1 The term ozone summer day is abbreviated as OSD.

As can be seen, total emissions decreased during the ten-year maintenance period. Thus the plan has demonstrated that the 1-hour ozone standard will be maintained. The full emissions benefits obtained from state and Federal control measures are included in the table above. For the demonstration of maintenance, it is only necessary for the state to show that there is no increase in the emissions. Clearly excess emission benefits are included in the demonstration.

Control measures used to reduce emissions and maintain the standard are shown in the following list. These measures include stationary, mobile and area source controls.

List of State Rules

State rulesTitle
28-19-61Definitions.
28-19-62Testing procedures.
28-19-63Automobile and light duty truck surface coating.
28-19-64Bulk gasoline terminals.
28-19-65Volatile organic compounds liquid storage in permanent fixed roof tanks.
28-19-66Volatile organic compounds liquid storage in external floating roof tanks.
28-19-67Petroleum refineries.
28-19-68Leaks from petroleum refinery equipment.
28-19-69Cutback asphalt.
28-19-70Leaks from gasoline delivery vessels and vapor collection systems.
28-19-71Printing operations.
28-19-72Gasoline dispensing facilities.
28-19-73Surface coating of miscellaneous metal parts and products and metal furniture.
28-19-74Wool fiberglass manufacturing.
28-19-76Lithography printing operations.
28-19-77Chemical processing facilities that operate alcohol plants or liquid detergent plants.
28-19-714Solvent metal cleaning.
Start Printed Page 54192
28-19-717Control of volatile organic compound emissions from commercial bakery ovens in Johnson and Wyandotte Counties.
28-19-719Fuel volatility.

In addition, the plan relies upon the Federal motor vehicle emissions control program in effect as of June 21, 2002. That program includes such rules as the following that limit emissions from vehicles and set certain fuel parameters:

—Tier 0 emission limits rule for model year (MY) 1980 and 1981 vehicles,

—Tier I starting with MY 1994,

—Tier II starting with MY 2004,

—National Low Emission Vehicles program (MY-97 for the northeast area and MY-2001 for the rest of the USA),

—On-board refueling vapor recovery starting with MY 1998,

—Heavy duty (HD) diesel rule starting with MY 1991,

—HD diesel rule starting with MY 2004, and

—HD diesel rule starting with MY 2007.

2. Contingency Measures

As required by the CAA, contingency provisions are provided in the plan. The state committed to reduce the total VOC emissions identified in the combined Johnson and Wyandotte County inventory by five percent in response to a future violation of the ozone standard. Prior to implementation, the Kansas Department of Health and Environment (KDHE) will review the latest applicable emissions inventory data, perform a comprehensive evaluation of control strategies and select those control measures that provide the greatest benefit and most cost-effective response to achieve the needed VOC emissions reduction. Control measures to be considered will include but will not be limited to the following measures:

—Stationary source controls (NOX and VOC), including offsets,

—Review and evaluation of existing VOC regulations for the Kansas City metropolitan area to identify opportunities for additional reductions through amendment of these regulations as appropriate,

—Transportation control measurers (TCMs) (to the extent that VOC emissions reductions from these TCMs can be accurately defined and confirmed),

—Stage II vapor recovery, and

—Enhanced vehicle emissions reduction programs.

Once a violation of the NAAQS has been validated, the evaluation of control strategies will be completed within 180 days. Selection of the appropriate control measures will be done within 90 days of the completion of the evaluation. The state intends to implement any necessary contingency measures within 24 months after a violation of the 1-hour ozone standard subject to KDHE's administrative regulation procedures, legislative approval, and the mandatory public participation process.

The SIP contains a statement that funding must be provided by EPA to the state for the study of control measures once the NAAQS has been violated. Under section 175A of the CAA, states are obligated to identify and implement contingency measures for the prompt correction of any violation of the standard, regardless of whether funding is available.

In the response to comments, KDHE states, “The statement [relating to funding] is not meant to limit the State's commitment, but does necessarily reflect the inherent limits on the State executive branch to commit future resources without legislative authorization. While funding may be presumed for planning purposes, failure by the agency [KDHE] to recognize this lack of spending powers risks challenges that could upset the SIP process in the future. The lack of authority in the State agency is even more compelling where the need for funding from a Federal agency is involved.” We believe that the state has recognized its obligation under the CAA and has made the appropriate commitment to implement contingency measures within a reasonable time period of 24 months, if necessary. Therefore, we believe the SIP has fulfilled the requirement for including contingency measures in the plan as required in the CAA. Any failure by the state to implement contingency measures to address a violation of the 1-hour standard, within the 24-month time frame in the plan, would be a failure to implement the SIP.

3. Ambient Air Quality Monitoring

The current ambient air quality monitoring network consisting of six monitors operating in the Kansas City area is described. Two monitors are located in Liberty and Watkins Mill Park and are considered to be downwind monitors; two are placed in populated areas at Rocky Creek, previously located at Worlds of Fun and the Kansas City International Airport; one is placed upwind at Richards Gebaur Airport; and one is located downtown in Kansas City, Kansas. The state did commit to continue monitoring the air quality for the next ten years.

The ambient air quality is also described. During the initial ten-year period, the data indicates that a number of exceedances of the standard did occur from time to time. However, only two violations of the standard occurred during the time periods of 1993 through 1995 and again in 1995 through 1997. The state implemented continency measures to address these violations. Note that no excursion nor violation occurred during 1999, and no 1-hour violations have occurred since 1997.

A review of the design values also shows a decrease from the early nonattainment designation through the end of the first ten-year maintenance period from 0.14 parts per million (ppm) to 0.12 ppm. Although there was some fluctuation in the design value during the first ten-year maintenance period (1992—2002), the value was fairly stable ranging from 0.11 ppm to 0.13 ppm. From 1996 through September 30, 2001, the design values were below the value established in the Act for classifying the area as a marginal nonattainment area under section 181 of the Act.

As required, air quality in the metropolitan area has been monitored during the past ten-year period and the state has committed to continuing monitoring the air quality for the next ten-year maintenance period.

4. Tracking the Progress of the Plan

Continued maintenance of the ozone standard depends, in part, upon the state's efforts toward tracking air quality and VOC and NOX emissions. As noted above, the state has committed to measuring air quality for the next ten-year period. In addition, the state has committed to updating the emissions inventory for the Kansas portion of the Kansas City maintenance area every three years. This inventory will include point, area, mobile and biogenic emissions sources. The state will compare future emission inventory levels to the 1999 emission inventory level. Thus the state and EPA will utilize several methods for tracking the progress of the maintenance plan.

5. Emissions Inventory and Motor Vehicle Emissions Budgets

An emissions inventory was prepared for the Kansas City area for the base year of 1999 following EPA's procedures as provided in the Emissions Inventory Improvement Program. The year 1999 year was selected for the inventory as no excursion nor violations of the standard occurred. Emissions were then projected Start Printed Page 54193for 2012. The MOBILE6 emissions model was used for on-road mobile sources. The draft NONROAD model released in June 2001 in support of the 2007 heavy-duty vehicle rule was used to generate the 1999 and 2012 emissions for off-road mobile sources. Area source emissions, on-road mobile source emissions and vehicle miles traveled for 2012 were based upon the new population and employment forecast approved by the Mid-America Regional Council (MARC) Technical Forecast Committee on July 11, 2002, and the MARC Board in August 2002. The emission inventory amounts are shown in the table below.

Emissions Inventory of the Kansas City Area

Emissions category1999 emissions (tons per OSD)2012 emissions (tons per OSD)
VOCNOXCOVOCNOX
On-road Mobile92.3152.91092.445.574.2579.0
Off-road Mobile43.0108.9574.424.786.0711.8
Biogenic113.85113.85
Area89.923.324.9112.126.027.7
Point28.3139.114.339.4187.219.3
Total367.35424.21706.0335.55373.41337.8

Kansas has submitted a complete and accurate emissions inventory of VOC and NOX for the Kansas City area, and we are proposing to approve the emissions inventory.

Based upon the updated emissions inventory, the revised maintenance plan contains new budgets (or limits) for motor vehicles emissions resulting from transportation plans for the Kansas City area. Because emissions are less in 2012 than in 1999, our transportation conformity rule (40 CFR 93.124) allows for the allocation of amounts from one emissions category to another if it is provided for in the SIP. The SIP submission did quantify the amount by which the motor vehicle emissions could be higher while still providing for maintenance of the standard.

The new budgets must be found to meet the adequacy criteria in the transportation conformity rule before they are used for transportation conformity purposes. They were posted to our Web site (http://www.epa.gov/​otaq/​transp/​conform/​adequacy.htm) for public comment. These emission budgets have been under adequacy review since their submittal to us. We have reviewed the budgets and have found that the budgets meet all of the adequacy criteria in section 93.118 of the transportation conformity rule. These criteria include: (1) The SIP was endorsed by the Governor (or his designee) and was subject to a state public hearing; (2) consultation among Federal, state, and local agencies occurred; (3) the emissions budget is clearly identified and precisely quantified; (4) the motor vehicle emissions budget, when considered together with all other emissions, is consistent with attainment; and (5) the motor vehicle emissions budget is consistent with and clearly related to the emissions inventory and control strategy in the SIP. We are also required to consider comments submitted to the state at the public hearing. No comments were received by the state on the transportation conformity budgets. The new, area-wide budgets are shown in the table below:

Area-Wide Motor Vehicle Emissions Budget for 2012

PollutantAmount (tons per OSD)
VOC64.7
NOX97.8

These budgets support maintenance of air quality in the Kansas City area and, thus, were found adequate on March 17, 2003 (see 68 FR 33690, June 5, 2003). These new budgets are to be used in all subsequent conformity determinations concerning transportation plans in the Kansas City area.

We believe that the motor vehicle emissions budgets are consistent with the control measures identified in this maintenance plan and that this plan demonstrates maintenance with the 1-hour ozone standard. Separate from the adequacy process discussed above and for SIP purposes, in this document we are proposing to approve the transportation conformity budgets.

6. Legal Authority

The Kansas Air Quality act that granted legal authority to the KDHE to develop and implement regulations regarding air pollution is found in the Kansas Statutes Annotated, section 65-3001 through 65-3028.

Have the Requirements for Approval of a SIP Revision Been Met?

The state submittal has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submittal also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, as explained above and in more detail in the technical support document which is part of this document, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

Our review of the material submitted also indicates that the state has revised the maintenance plan in accordance with requirements for a maintenance plan in section 175A of the CAA.

What Action Is EPA Taking?

We are proposing to approve:

  • Kansas' revision of the maintenance plan for the Kansas portion of the Kansas City maintenance area,
  • The emissions inventory, and
  • The transportation conformity budgets.

We are soliciting comments on this proposed action. Final rulemaking will occur after consideration of any comments. You may submit comments either electronically or by mail. To ensure proper receipt by EPA, identify the appropriate rulemaking identification number, KS 184-1184, in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.

1. Electronically. If you submit an electronic comment as prescribed below, EPA recommends that you Start Printed Page 54194include your name, mailing address, and an e-mail address or other contact information in the body of your comment. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket. 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.

a. Electronic mail. Comments may be sent by e-mail to Leland Daniels at daniels.leland@epa.gov. Please include identification number, KS 184-1184, in the subject line. EPA's e-mail system is not an “anonymous access” system. If you send an e-mail comment directly without going through Regulations.gov, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket.

b. Regulations.gov. Your use of Regulations.gov is an alternative method of submitting electronic comments to EPA. Go directly to http://www.regulations.gov, click on “To Search for Regulations,” then select Environmental Protection Agency and use the “go” button. The list of current EPA actions available for comment will be listed. Please follow the online instructions for submitting comments. The system is an “anonymous access” system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment.

2. By Mail. Written comments should be sent to the name and address listed above.

Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed 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 proposed action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule 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 rule proposes to approve 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 proposed rule 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, August 10, 1999). This action merely proposes to approve 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 proposed rule 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 is not economically significant.

In reviewing SIP 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 SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP 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 proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

Start List of Subjects

List of Subjects in 40 CFR Part 52

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Dated: September 4, 2003.

James B. Gulliford,

Regional Administrator, Region 7.

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[FR Doc. 03-23590 Filed 9-15-03; 8:45 am]

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