Kan. Admin. Regs. § 28-19-801

Current through Register Vol. 43, No. 16, April 18, 2024

Section 28-19-801 - Transportation conformity

(a) The provisions of this regulation shall apply:

(1) to areas of the state which have been identified as not meeting the national primary ambient air quality standard for ozone in the manner prescribed by the provisions of section 107(d) of the federal clean air act, 42 U.S.C. § 7407, as promulgated at 40 CFR part 81, as in effect July 1, 1986 and amended at 51 Fed. Reg. 25,202, July 11, 1986; and

(2) with respect to emissions of ozone precursors.

(b) Applicable provisions of the federal transportation conformity rule.

(1) The following sections of 40 CFR part 93, subpart A, entitled "Conformity to State or Federal Implementation Plans of Transportation Plans, Programs, and Projects Developed, Funded or Approved Under Title 23 U.S.C. or the Federal Transit Act," promulgated by the U.S. environmental protection agency on November 24, 1993, are adopted by reference: §§ 93.100, 93.103, 93.104, 93.106, 93.107, 93.108, 93.109, 93.110, 93.111, 93.113, 93.114, 93.115, 93.118, 93.119, 93.120, 93.122, 93.123, 93.124, 93.129, 93.132, 93.134, and 93.135.

(2)40 CFR § 93.102, as promulgated on November 24, 1993, is adopted by reference except that subparagraphs (b)(1), (b)(2), (b)(3)(ii) and (b)(3)(iii) are deleted.

(3)40 CFR § 93.128, as promulgated on November 24, 1993, is adopted by reference, except that subparagraph (e)(2) is deleted.

(4)40 CFR § 93.130, as promulgated on November 24, 1993, is adopted by reference with the following modifications:

(A) subparagraph (b)(5) of 40 CFR § 93.130 is renumbered as subparagraph (a)(6);

(B) the reference in subparagraph (b) of 40 CFR 93.130 to "paragraphs (b)(1) through (5) of this section" shall read "paragraphs (b)(1) through (4) of this section";

(C) references in subparagraph (c)(1) of 40 CFR § 93.130 to "paragraph (a) of this section" shall read "paragraph (b) of this section";

(D) any references made to 40 CFR § 93.130 in any of the sections of 40 CFR part 93, subpart A, adopted by reference pursuant to subparagraph (b)(1) of this regulation shall be deemed to refer to this subparagraph (b)(4);

(E) any references in 40 CFR § 93.130 to 40 CFR § 93.127 are deleted; and

(F) subparagraph (e) of 40 CFR § 93.130 is deleted.

(5)40 CFR § 93.136, as promulgated on November 24, 1993, is adopted by reference except that:

(A) subparagraphs (a)(1), (a)(6), and (a)(7) are deleted; and

(B) any reference made to 40 CFR § 93.136 in any of the sections of 40 CFR, part 93, subpart A, adopted by reference pursuant to subparagraph (b)(1) of this regulation, shall be deemed to refer to this subparagraph (b)(5).

(6) The following is adopted in lieu of adoption by reference of 40 CFR § 93.133, as promulgated on November 24, 1993, parts of which are inapplicable to the areas of the state identified in paragraph (a) of this regulation:

(A) Before a conformity determination is made, enforceable written commitments must be obtained from project sponsors for any project-level mitigation or control measures which are either:

(i) conditions of the conformity determination for a transportation plan or transportation improvement program; or

(ii) included in the project design concept and scope that is used in the regional emissions analysis required by 40 CFR § 93.118 through § 93.120 and 40 CFR § 93.122 through § 93.124.

(B) During the control strategy and maintenance periods, if the metropolitan planning organization or project sponsor believes the mitigation or control measures are no longer necessary for conformity, the project sponsor or operator may be relieved of its obligation to implement the mitigation or control measures if:

(i) it can demonstrate that the requirements of 40 CFR § 93.118 and 40 CFR § 93.119 are satisfied without the mitigation or control measures; and

(ii) it so notifies the agencies involved in the interagency consultation process required under paragraph (d) of this regulation. The metropolitan planning organization and the U.S. department of transportation shall confirm that the transportation plan and transportation improvement program still satisfy the requirements of 40 CFR § 93.118 and 40 CFR § 93.119 and that the conformity determinations for the transportation plan, transportation improvement program, and project are still valid without implementation of the mitigation or control measures.

(C) The reference to 40 CFR § 93.133(a) in 40 CFR § 93.115, which is adopted by reference pursuant to subparagraph (b)(1) of this regulation, shall be deemed to refer to this subparagraph (b)(6).

(7) Any reference to federal regulations in 23 CFR part 450 in any of the sections of 40 CFR part 93 adopted by reference pursuant to this regulation, is to 23 CFR part 450 as in effect on the date of adoption of this regulation.

(8) Any reference to 40 CFR § 93.105, consultation, in any of the sections of 40 CFR part 93 adopted by reference, shall be deemed to refer to paragraph (d) of this regulation.

(c) Definitions.

(1)40 CFR § 93.101, definitions, as promulgated on November 24, 1993, is adopted by reference.

(2) For the purposes of this rule the term "Kansas consulting agencies" shall mean:

(A) the Kansas department of health and environment;

(B) the Kansas department of transportation;

(C) the Wyandotte county health department; and

(D) the Johnson county environmental department.

(d) Interagency consultation requirements.

(1) Consultation pursuant to this section shall take place during all periods identified in 40 CFR § 93.109, which is adopted by reference pursuant to paragraph (b) of this regulation.

(2) The Kansas consulting agencies shall participate in a consultation process with representatives of:

(A) the Missouri department of natural resources, division of environmental quality, and Missouri local air agencies that elect to participate in the consultation process;

(B) the Missouri department of transportation and Missouri local transportation agencies;

(C) the federal highway administration of the U.S. department of transportation, the federal transit administration of the U.S. department of transportation, and the U.S. environmental protection agency; and

(D) the Mid-America regional council, in its capacity as the lead planning agency for the Kansas City air quality region certified by the state of Kansas under section 174 of the federal clean air act, 42 U.S.C. § 7504, and in its capacity as the metropolitan planning organization for the Kansas City metropolitan area, designated by the governor of the state of Kansas as responsible for transportation planning under section 134 of Title 23 U.S.C.

(3) Consultation shall be required for:

(A) any conformity determination pertaining to transportation plan, programs, and projects required pursuant to section 176(c)(4) of the federal clean air act, 42 U.S.C. § 7506(c)(4), and 40 CFR part 93, subpart A, as promulgated on November 24, 1993; and

(B) all matters listed at 40 CFR § 93.105(c), as promulgated on November 24, 1993, which is hereby adopted by reference, with the following modifications:

(i) subparagraph (1)(v) of 40 CFR § 93.105(c) is deleted; and

(ii) the reference in subparagraph (5) of 40 CFR § 93.105(c) to 40 CFR § 93.130 shall be deemed to refer to subparagraph (b)(4) of this regulation.

Kan. Admin. Regs. § 28-19-801

Authorized by and implementing K.S.A. 1995 Supp. 65-3005; effective March 15, 1996.