[Federal Register Volume 68, Number 179 (Tuesday, September 16, 2003)]
[Proposed Rules]
[Pages 54190-54194]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-23590]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[KS 184-1184; FRL-7559-4]


Approval and Promulgation of Implementation Plans; State of 
Kansas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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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 [email protected] 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.

FOR FURTHER INFORMATION CONTACT: Leland Daniels at (913) 551-7651, or 
by e-mail at [email protected].

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?

[[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
------------------------------------------------------------------------
                                            Pollutant emission (tons per
                                                      OSD \1\)
                   Year                    -----------------------------
                                               VOC       NOX       CO
------------------------------------------------------------------------
1999......................................    367.35     424.2    1706.0
2012......................................    335.55     373.4   1337.8
------------------------------------------------------------------------
\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 rules                             Title
------------------------------------------------------------------------
28-19-61........................  Definitions.
28-19-62........................  Testing procedures.
28-19-63........................  Automobile and light duty truck
                                   surface coating.
28-19-64........................  Bulk gasoline terminals.
28-19-65........................  Volatile organic compounds liquid
                                   storage in permanent fixed roof
                                   tanks.
28-19-66........................  Volatile organic compounds liquid
                                   storage in external floating roof
                                   tanks.
28-19-67........................  Petroleum refineries.
28-19-68........................  Leaks from petroleum refinery
                                   equipment.
28-19-69........................  Cutback asphalt.
28-19-70........................  Leaks from gasoline delivery vessels
                                   and vapor collection systems.
28-19-71........................  Printing operations.
28-19-72........................  Gasoline dispensing facilities.
28-19-73........................  Surface coating of miscellaneous metal
                                   parts and products and metal
                                   furniture.
28-19-74........................  Wool fiberglass manufacturing.
28-19-76........................  Lithography printing operations.
28-19-77........................  Chemical processing facilities that
                                   operate alcohol plants or liquid
                                   detergent plants.
28-19-714.......................  Solvent metal cleaning.

[[Page 54192]]

 
28-19-717.......................  Control of volatile organic compound
                                   emissions from commercial bakery
                                   ovens in Johnson and Wyandotte
                                   Counties.
28-19-719.......................  Fuel 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

[[Page 54193]]

for 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
----------------------------------------------------------------------------------------------------------------
                                    1999                         2012 emissions  (tons per OSD)
                                  emissions  ----------------------------------------------------------------------
      Emissions category          (tons per
                                    OSD)          VOC          NOX           CO           VOC          NOX
-------------------------------------------------------------------------------------------------------------- ----
On-road Mobile................         92.3         152.9       1092.4         45.5          74.2        579.0
Off-road Mobile...............         43.0         108.9        574.4         24.7          86.0        711.8
Biogenic......................        113.85  ...........  ...........        113.85  ...........  ...........
Area..........................         89.9          23.3         24.9        112.1          26.0         27.7
Point.........................         28.3         139.1         14.3         39.4         187.2         19.3
                               ---------------
    Total.....................        367.35        424.2       1706.0        335.55        373.4       1337.8
----------------------------------------------------------------------------------------------------------------

    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
------------------------------------------------------------------------
                                                       Amount  (tons per
                      Pollutant                               OSD)
------------------------------------------------------------------------
VOC..................................................              64.7
NOX..................................................              97.8
------------------------------------------------------------------------

    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:
    [sbull] Kansas' revision of the maintenance plan for the Kansas 
portion of the Kansas City maintenance area,
    [sbull] The emissions inventory, and
    [sbull] 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

[[Page 54194]]

include 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 [email protected]. 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.).

List of Subjects in 40 CFR Part 52

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

    Dated: September 4, 2003.
James B. Gulliford,
Regional Administrator, Region 7.
[FR Doc. 03-23590 Filed 9-15-03; 8:45 am]
BILLING CODE 6560-50-P