[Federal Register Volume 76, Number 4 (Thursday, January 6, 2011)]
[Proposed Rules]
[Pages 763-766]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-15]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R07-OAR-2010-0839; FRL-9248-7]
Finding of Substantial Inadequacy of Implementation Plan; Call
for Kansas Section 110 State Implementation Plan for Interstate
Transport for the 1997 National Ambient Air Quality Standards for Ozone
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: Pursuant to our authority under the Clean Air Act (CAA), EPA
is proposing to find that the Kansas State Implementation Plan (SIP) is
substantially inadequate to satisfy the CAA requirement to address
Kansas' significant contribution to downwind nonattainment or
interference with maintenance in another State with respect to the 1997
National Ambient Air Quality Standards (NAAQS) for ozone. The specific
State Implementation Plan deficiencies that EPA has identified are
described in this proposal and in the proposed Federal Implementation
Plan To Reduce Interstate Transport of Fine Particulate Matter and
Ozone. If EPA finalizes this proposed finding of substantial
inadequacy, Kansas will be required to revise its SIP to correct these
deficiencies no later than 12 months following the date of signature of
the final finding of substantial inadequacy.
DATES: Comments must be received on or before March 7, 2011.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R07-
OAR-2010-0839, by one of the following methods:
1. http://www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. E-mail: [email protected].
3. Mail: Ms. Elizabeth Kramer, Environmental Protection Agency, Air
Planning and Development Branch, 901 North 5th Street, Kansas City,
Kansas 66101.
4. Hand Delivery or Courier: Deliver your comments to: Ms.
Elizabeth Kramer, Environmental Protection Agency, Air Planning and
Development Branch, 901 North 5th Street, Kansas City, Kansas 66101.
Such deliveries are only accepted during the Regional Office's normal
hours of operation.
Instructions: Direct your comments to Docket ID No. EPA-R07-OAR-
2010-0839. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit through http://www.regulations.gov or e-mail, information that you consider to be CBI
or otherwise protected. The http://www.regulations.gov Web site is an
``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://
[[Page 764]]
www.regulations.gov your e-mail address will be automatically captured
and included as part of the comment that is placed in the public docket
and made available on the Internet. If you submit an electronic
comment, EPA recommends that you include your name and other contact
information in the body of your comment and with any disk or CD-ROM you
submit. 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. Electronic files should avoid the use of special
characters, any form of encryption, and should be free of any defects
or viruses.
Docket: All documents in the electronic docket are listed in the
http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the Environmental
Protection Agency, Air Planning and Development Branch, 901 North 5th
Street, Kansas City, Kansas 66101. The Regional Office is open from 8
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. 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: Ms. Elizabeth Kramer, Air Planning and
Development Branch, Environmental Protection Agency, Region 7, 901
North 5th Street, Kansas City, Kansas 66101; telephone number: (913)
551-7186; fax number (913) 551-7844; e-mail address:
[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:
I. What is the basis for the proposed SIP Call?
II. How can Kansas correct the inadequacy and when must the
correction be submitted?
III. What action is EPA proposing?
IV. Statutory and Executive Order Reviews
I. What is the basis for the proposed SIP Call?
EPA previously issued findings that certain States had failed to
submit SIPs to satisfy the requirements of section 110(a)(2)(D)(i) of
the CAA for the 1997 ozone and fine particle (PM2.5)
standards (70 FR 21147, April 25, 2005). These findings started a 2-
year clock for the promulgation of a FIP by EPA unless, prior to that
time, each State made a submission to meet the requirements of
110(a)(2)(D)(i) and EPA approved the submission. This 2-year period
expired in May 2007. EPA promulgated the Clean Air Interstate Rule
(CAIR) on May 12, 2005, (see 70 FR 25162). CAIR required States to
reduce emissions of sulfur dioxide and nitrogen oxides that
significantly contribute to, and interfere with maintenance of the
NAAQS for PM2.5 and/or ozone in any downwind State. CAIR was
intended to provide States covered by the rule with a mechanism to
satisfy their CAA section 110(a)(2)(D)(i)(I) obligations to address
significant contribution to downwind nonattainment and interference
with maintenance in another State with respect to the 1997 ozone and
PM2.5 NAAQS. Many States adopted the CAIR provisions and
submitted SIPs to EPA to demonstrate compliance with the CAIR
requirements in satisfaction of their 110(a)(2)(d)(i)(I) obligations.
For States that were in the CAIR region, EPA determined that the
110(a)(2)(D)(i)(I) SIP requirements were addressed by CAIR and the CAIR
FIPs. However, the CAIR region did not include the State of Kansas.
Therefore, Kansas was required to submit a SIP revision independent of
CAIR to address interstate transport under 110(a)(2)(D)(i)(I).
On August 15, 2006, EPA issued guidance for SIP submissions
addressing the requirements of section 110(a)(2)(D)(i) for the 1997
PM2.5 and ozone NAAQS.\1\ To satisfy the section
110(a)(2)(D)(i)(I) requirement, on January 9, 2007, the State of Kansas
submitted to EPA a declaration that the State does not contribute
significantly to projected downwind ozone nonattainment, or interfere
with maintenance in the year 2010, and provided a technical
demonstration to support their negative declaration. On March 9, 2007,
EPA approved the Kansas Department of Health and Environment's (KDHE)
submittal to address CAA Section 110(a)(2)(D)(i).\2\
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\1\ Memorandum from William T. Harnett entitled ``Guidance for
State Implementation Plan (SIP) Submissions to Meet Current
Outstanding Obligations Under Section 110(a)(2)(D)(i) for the 8-hour
Ozone and PM2.5 National Ambient Air Quality Standards,''
August 15, 2006.
\2\ 72 FR 10608, March 9, 2007.
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EPA was sued by a number of parties on various aspects of CAIR, and
on July 11, 2008, the U.S. Court of Appeals for the District of
Columbia Circuit issued its decision to vacate and remand both CAIR and
the associated CAIR FIPs in their entirety. North Carolina v. EPA, 531
F.3d 836 (DC Cir. Jul. 11, 2008). However, in response to EPA's
petition for rehearing, the Court issued an order remanding CAIR to EPA
without vacating either CAIR or the CAIR FIPs. North Carolina v. EPA,
550 F.3d 1176 (DC Cir. Dec. 23, 2008). The Court thereby left CAIR in
place in order to ``temporarily preserve the environmental values
covered by CAIR'' until EPA replaces it with a rule consistent with the
Court's opinion. Id. at 1178. The Court directed EPA to ``remedy CAIR's
flaws'' consistent with its July 11, 2008, opinion, but declined to
impose a schedule on EPA for completing that action. Id.
EPA approved KDHE's SIP prior to the remand of the CAIR by the DC
Circuit. The remand of CAIR had no impact on EPA's approval of the
KDHE's SIP submission to satisfy the requirements of CAA Section
110(a)(2)(D)(i)(I).
On July 6, 2010, the Administrator signed a proposed Federal
Implementation Plan to Reduce Interstate Transport of Fine Particulate
Matter and Ozone (Transport Rule) to replace CAIR in response to the
court's ruling.\3\ The updated modeling in support of the proposed
Transport Rule responding to the remand of CAIR demonstrates that
emissions from Kansas do interfere with maintenance of the 1997 8-hour
ozone NAAQS in downwind areas.\4\ The previously approved Kansas SIP
did not adequately address emissions. Therefore, based on the modeling
used to support the proposed Transport Rule, which was not available at
the time Kansas prepared and EPA approved the SIP submission, EPA
proposes to find that the SIP revision approved on March 7, 2007, is
substantially inadequate pursuant to 110(a)(2)(D)(i)(I).
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\3\ See 75 FR 45210 (August 2, 2010), ``Federal Implementation
Plans to Reduce Interstate Transport of Fine Particulate Matter and
Ozone''.
\4\ See Transport Rule proposal at 75 FR 45267-45268.
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II. How can Kansas correct the inadequacy and when must the correction
be submitted?
To correct the deficiency, KDHE must submit a revised SIP that
contains adequate provisions to prohibit air pollutant emissions from
within the State that significantly contribute to nonattainment or
interfere with maintenance of the 1997 8-hour ozone NAAQS in other
downwind States. The SIP revision must contain measures that ensure
that sources in Kansas reduce their NOX emissions
sufficiently to
[[Page 765]]
eliminate the NOX emissions that contribute significantly to
nonattainment, or that interfere with maintenance of the 1997 ozone
standard, downwind. By eliminating those NOX emissions, the
control measures will assure that the remaining NOX
emissions will meet the level identified in the proposed Transport Rule
as the State's ozone season NOX emission budget.
Section 110(k)(5) of the CAA provides that after EPA makes a
finding that a plan is substantially inadequate, it may establish a
reasonable deadline for correcting the deficiencies, but the date
cannot be later than 18 months after the State is notified of the
finding.
EPA intends to finalize the SIP Call in early summer of 2011. We
propose to allow the State 12 months from the date of the notice, which
will be the date on which we sign the final action, to submit the SIP
revision, unless, during the comment period, the State expressly
advises that it would not object to a shorter period--as short as 3
weeks from the date of signature of the final in which case we would
establish the shorter period as the deadline. If the Administrator
signs the notice on or about May 1, 2011, the earliest possible
deadline would be three weeks from the date of signature. The purpose
of establishing the shorter period as the deadline--assuming that the
State advises us that it does not object to that shorter period--is to
allow Kansas to use the FIP under the proposed Transport Rule to
satisfy this SIP deficiency in an expedited manner. This would allow
Kansas sources the ability to use the same remedy available to sources
affected by the Transport Rule, within the same time period which EPA
recommends. If the State does not advise us that it does not object to
a shorter deadline, then the 12-month deadline would apply.
EPA proposes that this 3-week-to-12-month time period, although
expedited, meets the CAA 110(k)(5) requirement as a ``reasonable
deadline'' and we welcome comment on this interpretation. The term
``reasonable deadline,'' as it appears in that provision, is not
defined. We interpret it to mean a time period that is sensible or
logical, based on all the facts and circumstances. Those facts and
circumstances include (i) the State SIP development and submission
process, (ii) the ability for sources in Kansas to address emission
reductions using the same remedy and timing as other sources in the
proposed Transport Rule; and (iii) the preferences of the State. The
following elaborates on those three facts and circumstances.
First, although the 12-month period is consistent with the time
period required for SIP revisions in at least one previous SIP call
that EPA issued, the NOX SIP Call,\5\ we recognize that a
period shorter than 12 months is expedited in light of the time
involved in most State SIP development and submission processes. In
particular, we recognize that Kansas would need to undertake rulemaking
actions, which would be time-consuming. Although this is a matter of
State process, we are prepared to continue to work with Kansas to
develop expedited methods for developing, processing, and submitting a
SIP revision.
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\5\ See 63 FR 57356, (October 27, 1998). ``Finding of
Significant Contribution and Rulemaking for Certain States in the
Ozone Transport Assessment Group Region for Purposes of Reducing
Regional Transport of Ozone; Rule.''
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Second, providing the opportunity for sources in Kansas to address
emission reductions using the same remedy and timing as other sources
in the proposed Transport Rule is a significant consideration.
Prescribing a shorter period for Kansas to address the SIP deficiency
would mean that sources in Kansas could take advantage of the same
remedy provided to other sources affected by the Transport Rule.
Finally, the preference of Kansas is important because the deadline
for submittal of the corrective SIP revision in response to a SIP Call
acts as a burden on the State. If Kansas does not object to an earlier
deadline under which it must operate--which, in a sense, is contrary to
the State's self-interest because an earlier deadline typically
increases burdens--then that is an indication of the reasonableness of
the deadline.
In the case where the State fails to make a timely and responsive
SIP submittal, a finding that the State failed to submit the required
SIP revision would trigger the requirement under section 110(c) that
EPA promulgate a FIP no later than 2 years from the date of the
finding, if the deficiency has not been corrected, and EPA has not
approved a plan revision. The proposed Transport Rule, when finalized,
is the FIP that EPA intends to implement for Kansas to fulfill the
section 110(a)(2)(D)(i)(I) FIP obligation in the event the State fails
to submit an adequate SIP revision. EPA intends for the Transport Rule
FIP to be implemented sooner than 2 years from any such final finding.
In addition, if EPA finalizes this SIP Call by determining that the
existing SIP is substantially inadequate, and if the State subsequently
fails to provide a timely response to the SIP Call, the CAA provides
for EPA to issue a finding of State failure under section 179(a). Such
a finding normally starts an 18-month mandatory sanctions clock.
However, as is made clear in the order of sanctions rule, (40 CFR
52.31), the section 179 mandatory sanctions apply only in nonattainment
areas. See, 59 FR 39832 (August 4, 1994). Kansas has no areas
designated as nonattainment for the 1997 ozone NAAQS. Therefore, EPA
believes that the section 179 mandatory sanctions would not apply in
Kansas as a result of any planning failure associated with the SIP Call
proposed in this action.
It should also be noted that EPA does not intend to finalize this
SIP Call if the Final Transport Rule modeling does not show that
emissions from Kansas are contributing significantly to nonattainment
or interfering with maintenance of the 1997 8-hour ozone NAAQS in
downwind areas.
III. What action is EPA proposing?
EPA proposes the following actions relating to the Kansas
interstate transport SIP: (1) Find the SIP is substantially inadequate
to address the interstate transport of NOX and the ozone
that it forms in the atmosphere that contribute significantly to
nonattainment or interfere with maintenance of the 1997 ozone NAAQS in
downwind States; (2) require that Kansas revise the SIP to address the
requirements of section 110(a)(2)(D)(i)(I); (3) require the State to
submit revisions to the SIP within 12 months of the final finding or an
alternative deadline; (4) determine that the section 179 mandatory
sanctions would not be implicated by this action.
IV. Statutory and Executive Order Reviews
Under the Clean Air Act, a finding of substantial inadequacy and
subsequent obligation for a State to revise its SIP arise out of
section 110(a) and 110(k)(5). The finding and State obligation do not
directly impose any new regulatory requirements. In addition, the State
obligation is not legally enforceable by a court of law. EPA would
review its intended action on any SIP submittal in response to the
finding in light of applicable statutory and Executive Order
requirements, in subsequent rulemaking acting on such SIP submittal.
For those reasons, this proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
[[Page 766]]
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
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);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have Tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the finding of SIP inadequacy would not apply in Indian country
located in the State, and EPA notes that it will not impose substantial
direct costs on Tribal governments or preempt Tribal law.
Statutory Authority
The statutory authority for this action is provided by sections 110
and 301 of the CAA, as amended (42 U.S.C. 7410 and 7601).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution, Ozone, Kansas, State
Implementation Plan.
Dated: December 27, 2010.
Karl Brooks,
Regional Administrator, Region 7.
[FR Doc. 2011-15 Filed 1-5-11; 8:45 am]
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