05-8707. Air Quality Redesignation for the 8-Hour Ozone National Ambient Air Quality Standard; for Some Counties in the States of Kansas and Missouri

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The U. S. Environmental Protection Agency (EPA) is redesignating several counties in the Kansas City area from unclassifiable to attainment for the 8-hour ozone National Ambient Air Quality Standard (NAAQS). The counties are Johnson, Linn, Miami and Wyandotte Counties in Kansas and Cass, Clay, Jackson and Platte Counties in Missouri.

DATES:

This rule is effective on June 2, 2005.

FOR FURTHER INFORMATION CONTACT:

Leland Daniels at [phone] or by e-mail at [e-mail].

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 the Background for This Action?

What Are the Statutory and Regulatory Requirements for Designations and Redesignations?

What New Information Is Available Regarding Air Quality in Kansas City?

What Action Is EPA Taking?

What Is the Background for This Action?

The EPA published a final rule (69 FR 23858; April 30, 2004) promulgating designations under the 8-hour ozone NAAQS. That action designated several counties in the Kansas City area as unclassifiable and provided that the designation was effective on June 15, 2004.

The initial Kansas City area designation was based on review of ozone data from 2001 through 2003. The counties in the Kansas City area designated as unclassifiable are Johnson, Linn, Miami and Wyandotte Counties in Kansas and Cass, Clay, Jackson and Platte Counties in Missouri. In that action, we stated that we would review all available information and make an attainment or nonattainment decision after reviewing the 2004 ozone data. On February 10, 2005 (70 FR 7070), the EPA published a proposal to redesignate the Kansas City area from unclassifiable to attainment. The Mid-America Regional Council Air Quality Forum submitted comments generally supporting the redesignation to attainment but raising questions about the implications of the redesignation for Kansas City. The commenter withdrew the comments by letter dated April 13, 2005.

What Are the Statutory Requirements for Designations and Redesignations?

Section 107(d) of the Clean Air Act (CAA) sets forth the criteria and process for designations and redesignations. An explanation of statutory requirements for the 8-hour ozone designations that became effective on June 15, 2004, and the actions EPA took to meet those requirements can be found in the final rule that established the designations (69 FR 23858; April 30, 2004). In Section 107(d)(3), the CAA addresses redesignations and provides that the Administrator or the Governor of a state may initiate the redesignation process. One of the bases for redesignation under that section is air quality data.

To determine whether an area is attaining the 8-hour ozone NAAQS, we consider the most recent three consecutive years of data in accordance with 40 CFR part 50, appendix I. For the purpose of this rulemaking, we reviewed the ozone data from 2002 through 2004.

What New Information Is Available Regarding Air Quality in Kansas City?

The state of Missouri submitted a letter dated December 21, 2004, regarding air quality in Kansas City. The letter certified that the 8-hour ozone data collected during the 2004 ozone season is correct, complete and appropriate for regulatory use. The letter also requested that EPA redesignate the Kansas City area from unclassifiable to attainment. Similarly, the state of Kansas submitted letters of November 18, 2004, and January 10, 2005, certifying the accuracy of the ozone data and requesting redesignation from unclassifiable to attainment. The counties included in the redesignation request are Johnson, Linn, Miami and Wyandotte Counties in Kansas and Cass, Clay, Jackson and Platte Counties in Missouri.

Consistent with 40 CFR part 50, appendix I, section 2.3, paragraph (d)(1), the 8-hour ozone standard is met if the three year average value of the annual fourth highest daily maximum (the design value) is 0.084 parts per million (ppm) or less. For the 2002-2004 time period, the design value for Kansas City is 0.082 ppm, indicating that the 8-hour ozone NAAQS has been attained.

What Action Is EPA Taking?

Based upon the applicable requirements in section 107(d)(3) of the CAA, the regulatory requirements in 40 CFR part 50, appendix I and the 8-hour ozone air quality data for the 2002 through 2004 time period, we are redesignating Johnson, Linn, Miami and Wyandotte Counties in Kansas and Cass, Clay, Jackson and Platte Counties in Missouri to attainment for the 8-hour ozone standard. The basis for this action is described in more detail above and in the February 10, 2005, proposed rule referenced above.

Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely designates an area for planning purposes based on air quality, and does not establish any new regulations. Accordingly, the Administrator certifies that this 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.). The redesignation is an action which affects the status of a geographic area but does not impose any new requirements on governmental entities or sources. Therefore because it does not impose any additional enforceable duty, 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 redesignation 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 establishes the attainment status, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This 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 state redesignation requests, 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 redesignation request for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a state recommendation, to use VCS in place of a state request 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 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.).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 5, 2005. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 81

• Environmental protection
• Air pollution control
• Ozone
• National park
• Wilderness area

Dated: April 22, 2005.

James B. Gulliford,

Regional Administrator, Region 7.

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

PART 81—[AMENDED]

1. The authority citation for part 81 continues to read as follows:

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

2. In § 81.317 the table entitled “Kansas—Ozone (8-Hour Standard)” is amended by revising the entry for Kansas City, KS-MO to read as follows:

§ 81.317

Kansas.

* * * * *

Kansas—Ozone (8-Hour Standard)

Designated area	Designation a		Classification
	Date 1	Type	Date 1	Type
Kansas City, KS-MO:
Johnson County	May 3, 2005	Attainment
Linn County	May 3, 2005	Attainment
Miami County	May 3, 2005	Attainment
Wyandotte County	May 3, 2005	Attainment
*         *         *         *         *         *         *
a Includes Indian Country located in each county or area, except as otherwise specified.
1 This date is June 15, 2004, unless otherwise noted.

* * * * *

3. In § 81.326 the table entitled “Missouri—Ozone (8-Hour Standard)” is amended by revising the entry for Kansas City, MO-KS to read as follows:

§ 81.326

Missouri.

* * * * *

Missouri—Ozone (8-Hour Standard)

Designated area	Designationa		Classification
	Date 1	Type	Date 1	Type
Kansas City, MO-KS:
Cass County	May 3, 2005	Attainment
Clay County	May 3, 2005	Attainment
Jackson County	May 3, 2005	Attainment
Platte County	May 3, 2005	Attainment
*         *         *         *         *         *         *
a Includes Indian Country located in each county or area, except as otherwise specified.
1 This date is June 15, 2004, unless otherwise noted.

* * * * *