[Federal Register Volume 66, Number 223 (Monday, November 19, 2001)]
[Proposed Rules]
[Pages 57911-57914]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-28858]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[KS 0138-1138; FRL-7104-5]


Approval and Promulgation of Implementation Plans; State of 
Kansas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA proposes to approve the State Implementation Plan (SIP) 
revision concerning the Kansas Fuel Volatility rule submitted by the 
Kansas Department of Health and Environment (KDHE). This action would 
approve amendments to State controls on the summertime Reid Vapor 
Pressure (RVP) of gasoline distributed in Wyandotte and Johnson 
Counties. The amendment changed the RVP limit from 7.2 pounds per 
square inch (psi) to 7.0 psi, and from 8.2 psi to 8.0 psi for gasoline 
containing at least 9.0 percent by volume but not more than 10.0 
percent by volume ethanol. This is a part of the State's plan to 
maintain clean air quality in Kansas City.

DATES: Comments must be received on or before December 19, 2001.

ADDRESSES: Written comments should be mailed to Leland Daniels, 
Environmental Protection Agency, Air Planning and Development Branch, 
901 North 5th Street, Kansas City, Kansas 66101.
    Copies of documents relative to this action are available for 
public inspection during normal business hours at the above-listed 
Region 7 location. Interested persons wanting to examine these 
documents should make an appointment with the office at least 24 hours 
in advance.

FOR FURTHER INFORMATION CONTACT: Leland Daniels at (913) 551-7651.

SUPPLEMENTARY INFORMATION: This section provides additional information 
by addressing the following questions:

What is a SIP?
What is the Federal approval process for a SIP?
What are the criteria for SIP approval?
What does Federal approval of a state regulation mean to me?
What is being addressed in this document?
Have the requirements for approval of a SIP revision been met?
What action is EPA taking?

What Is a SIP?

    Section 110 of the Clean Air Act (CAA) requires states to develop 
air pollution regulations limiting emissions 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 SIP Approval?

    In order to be approved into a SIP, the submittal must meet the 
requirements of section 110. In determining the approvability of a SIP 
revision, EPA must evaluate the proposed revision for consistency with 
the requirements of the CAA and our regulations, as found in section 
110 and part D of Title I of the CAA amendments and 40 CFR part 51 
(Requirements for Preparation, Adoption, and Submittal of 
Implementation Plans).
    The CAA has additional requirements for the approval of SIPs 
containing certain state fuel controls. Section 211(c)(4)(A) of the CAA 
prohibits states from prescribing or attempting to enforce regulations 
respecting fuel characteristics or components if EPA has adopted 
Federal controls under section 211(c)(1) applicable to such fuel 
characteristics or components, unless the state control is identical to 
the Federal control. Section 211(c)(4) includes two exceptions to this 
prohibition. First, under section 211(c)(4)(B), California is not 
subject to the preemption in section 211(c)(4)(A). Second, a State may 
prescribe or enforce such otherwise preempted fuel controls if the 
measure is approved into a SIP.
    Under section 211(c)(4)(C), we may approve such state fuel controls 
into a SIP, if the state demonstrates that the measure is necessary to 
achieve the NAAQS. Section 211(c)(4)(C) specifies that a state fuel 
requirement is ``necessary'' if no other measures would bring about 
timely attainment, or if other measures exist but are unreasonable or 
impracticable. As discussed in more detail below, the State rule 
proposed for SIP approval merely amends the State fuel control that has 
already been approved into the SIP and addresses emissions reductions 
shortfalls that EPA has already determined are required under the CAA. 
Therefore, a new demonstration of necessity under section 211(c)(4)(C) 
is not required.

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 Being Addressed in This Document?

Background

    Ozone monitoring data from 1987 through 1991 demonstrated that the 
Kansas City nonattainment area had attained the NAAQS for ozone. In 
accordance with the CAA, KDHE revised the SIP for ozone for the Kansas 
portion of the Kansas City area to

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recognize the area's attainment status. We published final approval of 
the Kansas SIP resdesignating the area to attainment on June 23, 1992. 
The SIP and the redesignation became effective on July 23, 1992.
    Section 175A of the CAA requires that states requesting 
redesignation of a nonattainment area to attainment status must also 
submit a revision to the state implementation plan that commits the 
state to provide for the maintenance of the standard for which the area 
is redesignated. The maintenance plan submitted by the State of Kansas 
and approved by EPA in 1992 included a commitment to ensure continued 
compliance with the ozone standard. The states and the region committed 
to implement the following additional air pollution control contingency 
measures in the event a future violation of the ozone standard 
occurred: Implement one or more transportation control measures to 
achieve at least a 0.5 percent reduction in actual area-wide volatile 
organic compound (VOC) emissions; require VOC emission offsets for new 
and modified major sources; and implement either a Stage II vapor 
recovery or enhanced vehicle inspection and maintenance program.
    On July 11, 12, and 13, 1995, exceedances of the ozone standard 
were measured at the Liberty monitoring site. These exceedances, in 
combination with the exceedance measured on July 29, 1993, constituted 
a violation of the ozone standard for the three-year time period of 
1993-1995. This violation triggered the need for the states to 
implement the contingency measures in the maintenance plan. By letter 
dated August 17, 1995, EPA agreed to a request from both Kansas and 
Missouri to substitute other equivalent control measures for those 
specified in the maintenance plan, provided the substitute measures 
would achieve substantially equivalent emission reductions and were 
submitted as SIP revisions.
    In partial fulfillment of the requirement to implement contingency 
measures, Kansas promulgated K.A.R. 28-19-79 to limit the RVP of the 
gasoline sold during the summer months (June 1 through September 15) in 
the Kansas City area to 7.2 psi. This regulation became effective May 
2, 1997. We published final approval of Kansas' RVP rule on July 7, 
1997 (62 FR 36212). The approval became effective on August 6, 1997. 
This action addressed a portion of the reductions needed to fulfill the 
requirement to implement contingency measures. The estimated area-wide 
reductions needed to maintain the standard was 8.5 tons per day (tpd) 
of VOC reductions. The 7.2 psi RVP rule would produce an estimated 4.1 
tpd of VOC reductions.
    An exceedance of the NAAQS for ozone again occurred on July 23, 
1997, at the Liberty monitoring site and another on August 28, 1997, at 
the Kansas City International Airport monitoring site. These 
exceedances in conjunction with the three exceedances in 1995 resulted 
in a violation of the ozone standard for the three-year period of 1995-
1997, again emphasizing the need to implement additional contingency 
measures. From 1998 through 2000, seven exceedances have been recorded 
at the six air quality monitors located in the Kansas City area, 
although no subsequent violations of the ozone standard have occurred.
    In an effort to satisfy the required emissions reductions and 
address the continuing exceedances, the Governors of Kansas and 
Missouri opted into the Federal program for reformulated gasoline (RFG) 
on July 20, 1999. However, on January 4, 2000, the United States Court 
of Appeals for the District of Columbia Circuit vacated EPA's rule 
allowing the use of RFG in former nonattainment areas (American 
Petroleum Inst. v. U.S. Environmental Protection Agency, 198 F. 3d 275 
(D.C. Cir. 2000)). Thus RFG was no longer a viable option for the area.
    In January 2000 the Kansas City Chamber of Commerce and then 
subsequently the Mid-America Regional Council (MARC) convened meetings 
with interested stakeholders to determine the most appropriate option 
for reducing the emissions of ozone forming pollutants. The 
stakeholders concluded that a lower volatility gasoline was the most 
appropriate option. At its September 2000 meeting, MARC adopted a 
resolution supporting the use of a lower volatility gasoline. Then on 
May 2, 2001, we received a SIP revision from Kansas that lowered the 
volatility of gasoline during the summertime. This notice and the 
accompanying technical support document provide an analysis of the SIP 
revision for a lower volatility gasoline.

Fuel Volatility

    RVP is a measure of a fuel's volatility and thereby affects the 
rate at which gasoline evaporates and emits VOCs, an ozone forming 
pollutant. VOCs are an important component in the production of ground-
level ozone in the hot summer months. RVP is directly proportional to 
the rate of evaporation. Consequently, the lower the RVP, the lower the 
rate of evaporation. Lowering the RVP in the summer months can offset 
the effect of summer temperatures upon the volatility of gasoline, 
which, in turn, lowers emissions of VOCs. Reduction of the RVP will 
help the state's effort to maintain the NAAQS for ozone.

State Submittal

    On May 2, 2001, KDHE requested that we revise the SIP to reflect 
its amendments to the State RVP controls. The amendments further lower 
the fuel volatility standard from 7.2 psi to 7.0 psi (for certain 
ethanol blended fuels, the standard was lowered from 8.2 psi to 8.0 
psi). Included in the submittal was a letter from Secretary Clyde D. 
Graeber, KDHE, to William W. Rice, Acting EPA Region 7 Administrator, 
requesting authorization to implement a lower RVP requirement in the 
Kansas City area; regulation K.A.R. 29-19-719; and a technical support 
document demonstrating the need to lower the RVP standard for the area. 
The state held a public hearing on March 14, 2001; the rule was adopted 
on April 3, 2001; and the rule became effective on April 27, 2001.

Analysis of the SIP

    As mentioned above, section 211(c)(4) of the CAA prohibits States 
from adopting or attempting to enforce controls or prohibitions 
respecting certain fuel characteristics or components unless the SIP 
for the State so provides.\1\ The CAA specifies that EPA may approve 
such State fuel controls into a SIP only upon a finding that the 
control is ``necessary'' to achieve a NAAQS as defined under section 
211(c)(4)(C). Section 211(c)(4)(C) does not, however, address the 
ability of States to modify fuel control programs that have already 
been deemed necessary and approved into a SIP.
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    \1\ Under sections 211(h) and 211(c)(1) of the CAA, we have 
promulgated nationally applicable Federal standards for the RVP 
level of summertime gasoline. Because a Federal control promulgated 
under section 211(c)(1) applies to the fuel characteristic RVP, 
nonidentical state controls on summertime RVP are prohibited under 
section 211(c)(4)(A).
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    Here Kansas does not seek approval of a new control or prohibition 
respecting a fuel characteristic or component. Instead, Kansas seeks 
approval of a change to the approved RVP control to adjust the level of 
the standard. Given the original 1997 determination that the State RVP 
control was necessary to respond to the violations of the NAAQS, the 
violation and the additional exceedances which occurred after the 
implementation of the 7.2 psi RVP control, and the fact that the 
necessary reductions called for in the State's maintenance plan have 
still not been

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achieved, we believe it is reasonable to approve the amendments to the 
RVP standard without a new demonstration of necessity under section 
211(c)(4)(C).\2\
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    \2\ The Technical Support Document submitted by the State (see 
217/KS-68 in the docket) supports a conclusion that the amendments 
to the RVP standard are necessary as defined under section 
211(c)(4)(C) of the CAA. Because we conclude that such a 
demonstration is not necessary, we have not conducted our own 
analysis of the State's submittal.
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    As explained above, when the area experienced violations of the 
NAAQS in 1995 and 1997, Kansas was required to implement contingency 
measures as necessary to assure the area's ozone levels continued to 
meet national standards. By an August 17, 1995 letter, EPA had affirmed 
that Missouri and Kansas could substitute other equivalent control 
measures for the contingency measures specified in the approved SIP 
provided the substitute measures would achieve substantially equivalent 
emission reductions and that the substitute measures were submitted as 
SIP revisions.
    In 1997, the State adopted a low RVP fuel regulation which required 
fuel sold between June 1 and September 15 of each year to have an RVP 
level not higher than 7.2 psi. As part of the SIP submittal, Kansas 
demonstrated that additional control measures necessary to provide 
emissions reductions required to meet the contingency plan commitments 
were unreasonable or impracticable for implementation. EPA found the 
RVP control was therefore necessary under section 211(c)(4)(C) and 
approved the 7.2 psi RVP gasoline requirement into the SIP (62 FR 
36212, July 7, 1997).
    The control adopted into the SIP in 1997, however, was insufficient 
to meet the VOC reductions required by the contingency measures of the 
maintenance plan. (See 64 FR 3896, January 26, 1999.) As a result, full 
approval of the SIP submittal addressing the 1995 and 1997 one-hour 
ozone violations was made contingent upon Kansas implementing one of 
the following in lieu of the contingency measures in the 1992 SIP which 
were not implemented: (1) Opting in to the Federal reformulated 
gasoline (RFG) program; (2) adopting regulations implementing either 
Stage II Vapor Recovery or Enhanced Inspection and Maintenance Program; 
or (3) adopting any combination of regulations that achieve the minimum 
VOC reductions required by the contingency measures identified in the 
1992 SIP (8.4 tpd)(64 FR 28757, May 27, 1999).
    In its current SIP submittal, Kansas quantifies the additional VOC 
reductions needed to make up the shortfall left from the 1997 SIP 
revision. Kansas estimates that the control measures approved into the 
SIP in 1997 provide approximately 4.0 of the 8.4 tpd of VOC reductions 
required. As a result the area needs to achieve approximately 4.4 tpd 
of additional VOC reductions to replace the reductions that were to be 
achieved by implementing the required contingency measures.
    After unsuccessfully attempting to opt-in to the Federal RFG 
program, the governor of Kansas committed to implement a 7.0 psi RVP 
fuel program in Johnson and Wyandotte Counties with a target 
implementation date of the summer of 2001. Reducing the fuel volatility 
limit from 7.2 to 7.0 psi will reduce VOC emissions by another 2.43 tpd 
in the Kansas City area. Kansas and Missouri are working to establish 
control measures for stationary sources to provide the additional 
emissions reductions called for in the maintenance plan. Kansas 
committed to implementation of a phased program to reduce the vapor 
pressure of cold cleaning solvents to less than or equal to 1.0 mmHg. 
We expect this SIP revision will be submitted early next year. Missouri 
submitted additional control measures on May 17 and July 19, 2001, for 
the control of petroleum liquid storage, loading, and transfer and 
another for the control of emissions from solvent cleanup operations. 
We expect another control measure reducing the vapor pressure of cold 
cleaning solvents to be submitted by Missouri later this year. EPA 
action on these submissions will be addressed in future rulemaking.
    This action proposes approval of the State's amendments to its RVP 
standards. We are approving these amendments without making a new 
determination of necessity under section 211(c)(4)(C) because the 
adjustment in the RVP level from 7.2 psi to 7.0 psi is a continuation 
of the previous requirement for the area to address the 1995 and 1997 
air quality violations. The CAA requirements for approving a State fuel 
control into a SIP were met with our rulemaking in 1997 when it was 
demonstrated that a fuel control measure is necessary to achieve the 
NAAQS. The changes to the level of control do not represent new 
controls respecting fuel characteristics or components that are not 
already approved in a SIP.
    It is important to note that Kansas could have adopted a 7.0 psi 
RVP control measure and received SIP approval for such a control in the 
1997 SIP revision. While this measure provided some VOC reductions, it 
did not provide all of the reductions considered necessary to respond 
to the violations of the ozone NAAQS. The 7.2 psi RVP control was 
adopted in 1997 as an interim control measure that could be implemented 
quickly while the State contemplated other control measures to make up 
the further reductions required. This decision, however, was not 
compelled by the CAA and, in 1997, Kansas could have made the decision 
it is making now that the appropriate RVP level is 7.0 psi.

Analysis of the Rule

    The Kansas rule specifies that no person shall dispense, supply, 
exchange in trade, offer for sale or supply, and sell or store gasoline 
used as a fuel for motor vehicles in Johnson and Wyandotte Counties and 
that has an RVP greater than 7.0 psi, or 8.0 psi for gasoline 
containing at least 9.0 percent by volume but not more than 10.0 
percent by volume ethanol. This rule applies beginning June 1 through 
September 15 of each year.
    In addition, facilities other than a gasoline dispensing facility 
shall keep and maintain at the facility, for two years following the 
date of the RVP test, records of the information regarding the RVP of 
gasoline that is to be used as a fuel for motor vehicles.
    Gasoline used exclusively for fueling implements of agriculture and 
gasoline in any tank, reservoir, storage vessel, or other stationary 
container with a nominal capacity of 500 gallons or less are exempt 
from this regulation.
    Gasoline that is separately stored in Johnson or Wyandotte 
Counties, sealed, and clearly labeled as a motor vehicle fuel that is 
not to be dispensed, sold, supplied, offered for supply or transport, 
or exchanged in trade within the regulated area until a designated date 
when such activity will be in compliance with this regulation is exempt 
from this regulation.
    Gasoline that is separately stored in Johnson or Wyandotte 
Counties, sealed, and clearly labeled as a motor vehicle fuel that is 
to be dispensed, sold, supplied, offered for supply or transport, or 
exchanged in trade outside of the regulated area shall be exempt from 
this regulation.
    The sampling procedures and test methods are consistent with the 
EPA recommendations as described in 40 CFR part 80, appendices D, E, 
and F.

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,

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appendix V. In addition, as explained above and 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 part 
D of Title I, and implementing regulations.

What Action Is EPA Taking?

    We are proposing to approve this revision to the Kansas SIP 
concerning K.A.R. 28-19-719 as it meets the requirements of the CAA. We 
are also proposing to revoke K.A.R. 28-19-79 as it has been revised and 
replaced.

Administrative Requirements

    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 (Public Law 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 Clean Air Act. 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.).

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.

    Dated: November 5, 2001.
Martha R. Steincamp,
Acting Regional Administrator, Region 7.
[FR Doc. 01-28858 Filed 11-16-01; 8:45 am]
BILLING CODE 6560-50-P