[Federal Register Volume 76, Number 35 (Tuesday, February 22, 2011)]
[Rules and Regulations]
[Pages 9658-9665]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-3858]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R07-OAR-2010-0932; FRL-9268-7]
Approval and Promulgation of Implementation Plans; Kansas:
Prevention of Significant Deterioration; Greenhouse Gas (GHG)
Permitting Authority and Tailoring Rule Revision; Withdrawal of Federal
GHG Implementation Plan for Kansas
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is taking final action to approve a revision to the State
Implementation Plan (SIP) for Kansas, submitted by the Kansas
Department of Health and Environment (KDHE) to EPA on October 4, 2010,
for parallel processing. KDHE submitted the final version of this SIP
revision on December 23, 2010. The SIP revision, which incorporates
updates to KDHE's air quality regulations, includes two significant
changes impacting the regulation of greenhouse gas (GHG) under Kansas's
New Source Review (NSR) Prevention of Significant Deterioration (PSD)
program. First, the SIP revision provides the State of Kansas with
authority to issue PSD permits governing GHGs. Second, the SIP revision
establishes emission thresholds for determining which new stationary
sources and modification projects become subject to Kansas's PSD
permitting requirements for their GHG emissions. The first provision is
required under the GHG PSD SIP call, which EPA published on December
13, 2010, and which required the state of Kansas to apply its PSD
program to GHG-emitting sources. The second provision is consistent
with the thresholds EPA established in the Tailoring Rule, published on
June 3, 2010. EPA is approving this SIP revision because this SIP
revision meets the requirements of the GHG PSD SIP Call. In addition,
as a result of this approval, EPA is rescinding the Federal
implementation plan (FIP)--as it relates to Kansas only--that had
previously been imposed on December 30, 2010.
DATES: Effective Date: This rule will be effective February 22, 2011.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R07-OAR-2010-0932. All documents in the docket
are listed on the http://www.regulations.gov Web site. Although listed
in the index, some information is not publicly available, i.e.,
Confidential Business Information or other information whose disclosure
is restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically through http://www.regulations.gov or
in hard copy at the Air Planning and Development Branch, Air and Waste
Management Division, U.S. Environmental Protection Agency, Region 7,
901 North 5th Street, Kansas City, KS 66101. EPA requests that if at
all possible, you contact the person listed in the FOR FURTHER
INFORMATION CONTACT section for further information. The Regional
Office's official hours of business are Monday through Friday, 8:30 to
4:30, excluding federal holidays.
FOR FURTHER INFORMATION CONTACT: For information regarding the Kansas
SIP, contact Mr. Larry Gonzalez, Air Planning and Development Branch,
Air and Waste Management Division, U.S. Environmental Protection
Agency, Region 7, 901 North 5th Street, Kansas City, Kansas 66101. Mr.
Gonzalez's telephone number is (913) 551-7041; e-mail address:
[email protected].
[[Page 9659]]
SUPPLEMENTARY INFORMATION:
Table of Contents
I. What is the background for this final action?
II. Analysis of Kansas's SIP Revision
III. What is EPA's response to comments received on the proposed
action?
IV. What is the effect of this final action?
V. When is this action effective?
VI. Final Action
VII. Statutory and Executive Order Reviews
I. What is the background for this final action?
EPA has recently undertaken a series of actions pertaining to the
regulation of GHGs that, although for the most part distinct from one
another, establish the overall framework for today's final action for
the Kansas SIP. The first four of these actions include, as they are
commonly called, the ``Endangerment Finding'' and ``Cause or Contribute
Finding,'' which EPA issued in a single final action,\1\ the ``Johnson
Memo Reconsideration,'' \2\ the ``Light-Duty Vehicle Rule,'' \3\ and
the ``Tailoring Rule.'' \4\ Taken together, these actions established
regulatory requirements for GHGs emitted from new motor vehicles and
new motor vehicle engines; determined that such regulations, when they
took effect on January 2, 2011, subject GHGs emitted from stationary
sources to PSD requirements; and limited the applicability of PSD
requirements to GHG sources on a phased-in basis.
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\1\ ``Endangerment and Cause or Contribute Findings for
Greenhouse Gases Under Section 202(a) of the Clean Air Act.'' 74 FR
66496 (December 15, 2009).
\2\ ``Reconsideration of Interpretation of Regulations that
Determine Pollutants Covered by Clean Air Act Permitting Programs.''
75 FR 17004 (April 2, 2010).
\3\ ``Light-Duty Vehicle Greenhouse Gas Emission Standards and
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324
(May 7, 2010).
\4\ ``Prevention of Significant Deterioration and Title V
Greenhouse Gas Tailoring Rule; Final Rule.'' 75 FR 31514 (June 3,
2010).
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In a separate action, the ``GHG PSD SIP Call,'' \5\ EPA called on
the State of Kansas and 12 other states with SIPs that do not provide
authority to issue PSD permits governing GHGs to revise their SIPs to
provide such authority. In that action--along with the ``Finding of
Failure to Submit SIP Revisions Required for Greenhouse Gases'' and GHG
PSD FIP,\6\ which EPA finalized for some states, including Kansas, on
December 23, 2010--EPA took steps to ensure that in the 13 states that
do not have authority to issue PSD permits to GHG-emitting sources at
present, either the state or EPA would have the authority to issue such
permits by January 2, 2011, or soon thereafter. EPA explained that
although for most states, either the state or EPA is already authorized
to issue PSD permits for GHG-emitting sources as of that date, Kansas
and the other 12 states have EPA-approved PSD programs that do not
include GHG-emitting sources and therefore do not authorize these
states to issue PSD permits to such sources. Therefore, EPA issued a
finding that Kansas and the other 12 states' SIPs are substantially
inadequate to comply with CAA requirements. Accordingly, and as part of
the same action, EPA also issued a SIP Call to require a SIP revision
that applies their SIP PSD programs to GHG-emitting sources. EPA also
established a SIP submittal deadline. In the proposed SIP call, EPA had
stated that the deadline could range from as little as three weeks
after the final SIP call was signed to as long as 12 months after the
final SIP call was signed, and that each affected state was authorized
to indicate to EPA a deadline to which it did not object. In the final
SIP call, EPA established deadlines that ranged, for the various
states, from December 23, 2010 (three weeks after signature), to
December 1, 2011 (12 months after signature), based, in general, on
each state's preference. Kansas was one of the states for which EPA
proposed and finalized the SIP Call. The state's comments regarding the
proposed SIP call, submitted October 4, 2010, are included in the
docket for this rulemaking. In the SIP call, EPA established a SIP
submittal deadline for Kansas of December 22, 2010, in accordance with
Kansas's preferences in that letter.
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\5\ ``Action to Ensure Authority to Issue Permits Under the
Prevention of Significant Deterioration Program to Sources of
Greenhouse Gas Emissions: Finding of Substantial Inadequacy and SIP
Call; Final Rule.'' 75 FR 77698 (December 13, 2010).
\6\ See footnotes 9 and 10.
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In addition, in the SIP call rulemaking, EPA stated certain
requirements that the corrective SIP revision must meet, which are that
the corrective SIP revision must--
(i) Apply the SIP PSD program to GHG-emitting sources;
(ii) Define GHGs as the same pollutant to which the Light-Duty
Vehicle Rule \7\ (LDVR) applies, that is, a single pollutant that is
the aggregate of the group of six gases (carbon dioxide
(CO2), methane (CH4), nitrous oxide
(N2O), hydrofluorocarbons (HFCs), perfluorocarbons
(PFCs), and sulfur hexafluoride (SF6)); and
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\7\ ``Light-Duty Vehicle Greenhouse Gas Emission Standards and
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324
(May 7, 2010).
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(iii) Either limit PSD applicability to GHG-emitting sources by
adopting the applicability thresholds included in the Tailoring Rule
or adopt lower thresholds and show that the state has adequate
personnel and funding to administer and implement those lower
thresholds.
In addition, if the corrective SIP revision adopts the Tailoring
Rule thresholds, then it must either adopt the CO2e
metric and use short tons (as opposed to metric tons) for
calculating GHG emissions in order to implement those thresholds, or
assure that its approach is at least as stringent as under the
Tailoring Rule, so that the state does not exclude more sources than
under the Tailoring Rule.
75 FR 77713/1 to 77715/1.
In the companion ``proposed GHG PSD FIP'' rulemaking,\8\ EPA
proposed a FIP that would give EPA authority to apply EPA's PSD program
to GHG-emitting sources in any state unable to submit a corrective SIP
revision by its deadline. After Kansas did not meet its SIP submission
deadline of December 22, 2010, EPA issued a finding of Kansas's failure
to submit a SIP revision \9\ and finalized the FIP for Kansas and six
other states: Arizona, Arkansas, Florida, Idaho, Oregon, and
Wyoming.\10\ In this notice, EPA stated its intent to leave the GHG PSD
FIP in place only as long as necessary for a state to submit and EPA to
approve a SIP revision that includes PSD permitting for GHG-emitting
sources.
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\8\ ``Action to Ensure Authority to Issue Permits Under the
Prevention of Significant Deterioration Program to Sources of
Greenhouse Gas Emissions: Federal Implementation Plan: Proposed
Rule.'' 75 FR 53883 (September 2, 2010).
\9\ ``Action to Ensure Authority to Issue Permits Under the
Prevention of Significant Deterioration Program to Sources of
Greenhouse Gas Emissions: Finding of Failure to Submit State
Implementation Plan Revisions Required for Greenhouse Gases.'' 75 FR
81874 (December 29, 2010).
\10\ ``Action to Ensure Authority to Issue Permits Under the
Prevention of Significant Deterioration Program to Sources of
Greenhouse Gas Emissions: Federal Implementation Plan; Final Rule.''
75 FR 82246 (December 30, 2010).
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On October 4, 2010, in response to the Tailoring Rule and earlier
GHG-related EPA rules, and in anticipation of the GHG PSD SIP Call
rulemaking, KDHE submitted a draft revision of its air quality
regulations to EPA for approval into the Kansas SIP to: (1) Provide the
State of Kansas with the authority to regulate GHGs under its PSD
program; and (2) establish appropriate emission thresholds and time-
frames for determining which new or modified stationary sources become
subject to Kansas's PSD permitting requirements for GHG emissions.
Subsequently, on November 18, 2010, EPA published a proposed rulemaking
to approve KDHE's October 4, 2010, SIP revision under parallel
processing. 75 FR 70657. There, EPA stated that it ``will not take
final action on the GHG SIP Call for the state of Kansas if the state
submits its
[[Page 9660]]
final SIP revision to EPA prior to the final rulemaking for the GHG SIP
Call,'' indicating that the proposed SIP revision would be sufficient
to address the inadequacies that serve as the basis for the SIP Call,
and later the final GHG PSD FIP. 75 FR at 70663.
EPA's November 18, 2010, proposed approval was contingent upon the
State of Kansas providing a final SIP revision that was substantially
the same as the draft revision proposed for approval. Id. After EPA
issued a finding that Kansas did not submit a SIP revision by its
December 22, 2010, deadline, and established a FIP for Kansas in
actions signed on December 23, 2010, Kansas submitted its final SIP
revision on December 23, 2010. This SIP revision is the same as the
proposed revision KDHE submitted on October 4, 2010, for parallel
processing. EPA is approving the final SIP revision in today's action
and is simultaneously withdrawing the FIP as it relates to the State of
Kansas.
II. Analysis of Kansas's SIP Revision
Section 110(k)(3) of the CAA provides that EPA shall approve a SIP
revision as a whole if it meets all of the applicable requirements of
the CAA. Kansas received a SIP call because its PSD program does not
apply to GHGs, and as a result, Kansas is required to submit a SIP
revision that applies PSD to GHGs and does so either at the Tailoring
Rule thresholds or at lower thresholds, and, if the latter, then Kansas
is required to demonstrate that it has adequate resources for
implementation.
Kansas has submitted a SIP revision that provides this authority.
Kansas's SIP revision updates the incorporation by reference to EPA's
definition in 40 CFR 52.21(b)(49) for ``subject to regulation'' to
explicitly include GHG as a regulated NSR pollutant under the CAA. In
addition, the Kansas rules incorporate the same thresholds and phase-in
schedule as the Tailoring Rule and they adopt the carbon dioxide
equivalent (CO2e) metric and use of short tons for
determining the thresholds.
EPA has determined that this change to Kansas's regulation meets
the requirements of the SIP call. Thus, this change is consistent with
the CAA and its implementing regulations regarding GHG. The changes
included in this submittal are the same as EPA's Tailoring Rule, and
therefore comply with the requirements of the SIP call.
III. What is EPA's response to comments received on the proposed
action?
EPA received a single set of comments on the November 18, 2010,
proposed rulemaking to approve revisions to Kansas's SIP. These
comments, provided by the Air Permitting Forum (hereinafter referred to
as ``the Commenter''), raised concerns with regard to EPA's November
18, 2010, proposed action. A full set of these comments is provided in
the docket for today's final action. A summary of the comments and
EPA's responses are provided below.
Generally, the adverse comments fall into five categories. First,
the Commenter asserts that PSD requirements cannot be triggered by
GHGs. Second, the Commenter characterizes EPA's interpretation of the
CAA by saying that Kansas will face a construction ban absent this SIP
revision and asserts that this interpretation is incorrect.
Furthermore, in a footnote, the Commenter expresses that EPA's process
of revising the state's SIP is inconsistent with CAA section 110
because it does not provide for notice and comment on the final state
action. Third, the Commenter expresses concerns regarding EPA's
previously announced intention to narrow its prior approval of some
SIPs to ensure that sources with GHG emissions that are less than the
Tailoring Rule's thresholds will not be obligated under federal law to
obtain PSD permits prior to a SIP revision incorporating those
thresholds. The Commenter explains that the planned SIP approval
narrowing action is ``inapplicable to this action and, if applicable,
is illegal.'' Fourth, the Commenter states that EPA has failed to meet
applicable statutory and executive order review requirements. Lastly,
the Commenter states: ``If EPA proceeds with this action, it should
make clear that any incorporation by reference conducted by Kansas
would rest on the continued existence and validity of the federal
regulations on which it [sic] the incorporation is based.'' EPA's
response to these five categories of comments is provided below.
Comment 1: The Commenter asserts that PSD requirements cannot be
triggered by GHGs. In its letter, the Commenter states: ``[N]o area in
the State of Kansas has been designated attainment or unclassifiable
for greenhouse gases (GHGs), as there is no national ambient air
quality standard (NAAQS) for GHGs. Therefore, GHGs cannot trigger PSD
permitting.'' The Commenter notes that it made this argument in detail
in comments submitted to EPA on the Tailoring Rule and other related
GHG rulemakings. The Commenter attached those previously submitted
comments to its comments on the proposed rulemaking related to this
action. Finally, the Commenter states that ``EPA should immediately
provide notice that it is now interpreting the Act not to require that
GHGs trigger PSD and allow Kansas to rescind that portion of its rules
that would allow GHGs to trigger PSD.''
Response 1: EPA established the requirement that PSD applies to all
pollutants newly subject to regulation, including non-NAAQS pollutants,
in earlier national rulemakings concerning the PSD program, and EPA has
not re-opened that issue in this rulemaking. Accordingly, these
comments are not relevant to this rulemaking. In addition, EPA has
explained in detail, in recent rulemakings concerning GHG PSD
requirements, its reasons for disagreeing with these comments.
In an August 7, 1980, rulemaking at 45 FR 52676, 45 FR 52710-52712,
and 45 FR 52735, EPA stated that a ``major stationary source'' was one
that emitted ``any air pollutant subject to regulation under the Act''
at or above the specified numerical thresholds; and defined a ``major
modification,'' in general, as a physical or operational change that
increased emissions of ``any pollutant subject to regulation under the
Act'' by more than an amount that EPA variously termed as de minimis or
significant. In addition, in EPA's NSR Reform rule at 67 FR 80186 and
67 FR 80240 (December 31, 2002), EPA added to the PSD regulations the
new definition of ``regulated NSR pollutant'' (currently codified at 40
CFR 52.21(b)(50) and 40 CFR 51.166(a)(49)); noted that EPA added this
term based on a request from a commenter to ``clarify which pollutants
are covered under the PSD program''; and explained that in addition to
criteria pollutants for which a NAAQS has been established, ``[t]he PSD
program applies automatically to newly regulated NSR pollutants, which
would include final promulgation of an NSPS [new source performance
standard] applicable to a previously unregulated pollutant.'' Id. at 67
FR 80240 and 67 FR 80264. Among other things, the definition of
``regulated NSR pollutant'' includes ``[a]ny pollutant that otherwise
is subject to regulation under the Act.'' See 40 CFR
52.21(b)(50)(d)(iv); see also 40 CFR 51.166(a)(49)(iv).
In any event, EPA disagrees with the Commenter's underlying premise
that PSD requirements are not triggered for GHGs when GHGs become
subject to regulation as of January 2, 2011. As just noted, this has
been well-established and discussed in connection with prior EPA
actions, including, most recently, the Johnson Memo Reconsideration and
the Tailoring Rule. In addition, EPA's November 18, 2010, proposed
[[Page 9661]]
rulemaking notice provides the general basis for the Agency's rationale
that GHGs, while not a NAAQS pollutant, can trigger PSD permitting
requirements. The November 18, 2010, notice also refers the reader to
the preamble to the Tailoring Rule for further information on this
rationale. In that rulemaking, EPA addressed at length the comment that
PSD can be triggered only by pollutants subject to the NAAQS and
concluded that such an interpretation of the Act would contravene
Congress's unambiguous intent. See 75 FR 31560-31562. Further
discussion of EPA's rationale for concluding that PSD requirements are
triggered by non-NAAQS pollutants such as GHGs appears in the Tailoring
Rule Response to Comments document (``Prevention of Significant
Deterioration and Title V GHG Tailoring Rule: EPA's Response to Public
Comments''), pp. 34-41; and in EPA's response to motions for a stay
filed in the litigation concerning those rules (``EPA's Response to
Motions for Stay,'' Coalition for Responsible Regulation v. EPA, D.C.
Cir. No. 09-1322 (and consolidated cases)), at pp. 47-59, and are
incorporated by reference here. These documents have been placed in the
docket for today's action.
Comment 2: In its letter, the Commenter mentions that it provided
comments on EPA's GHG PSD SIP Call and GHG PSD FIP rulemakings
expressing that ``EPA's interpretation of the Act to impose a
construction ban based on Section 165(a) is incorrect.'' Further, the
Commenter states: ``No statutory language addressing implementation
plan requirements can be construed to produce self-executing changes to
SIPs or FIPs approved or promulgated under section 110 of the Act
unless Congress enacts statutory provisions explicitly amending those
SIPs or FIPs to incorporate the new requirements, thereby obviating the
need for rulemaking under section 110(a) or (c) of the Act to effect
revisions to those implementation plans.'' The Commenter also contends
that there is no support for EPA's ``permit moratorium'' interpretation
because the Commenter believes CAA section 165(a) is not self-
executing, and approved SIPs and promulgated FIPs can only be changed
through section 110 rulemakings to revise those plans. In support of
its position, the Commenter cites to United States v. Cinergy Corp.,
No. 09-3344 (7th Cir. October 12, 2010). The Commenter further states
that Kansas would be able to issue PSD permits after January 2, 2011,
even without GHG limits, because its current SIP is approved and it
would be acting consistently with that approved SIP. Further, the
Commenter states that ``EPA's rule contemplated that states have 3
years to revise their SIPs when an NSR-related change occurs and,
assuming without conceding that EPA could impose PSD on GHGs, EPA
should have followed that procedure in this case.'' Finally, the
Commenter states that EPA's notice-and-comment process associated with
the proposed SIP revision is inconsistent with section 110 because it
does not provide for federal notice and comment on the final state
action.
Response 2: EPA established the requirement that Kansas submit a
corrective SIP revision in the SIP call rulemaking. As a result, the
only issues relevant to this rulemaking concern whether Kansas's SIP
submission meets the requirements of the SIP call and therefore should
be approved. Issues concerning the validity of the SIP call, including
the comments raised by the commenter, may have been relevant for the
SIP call rulemaking but are not relevant for this rulemaking.
Accordingly, these comments are not relevant for this rulemaking. EPA
notes that the Agency provided an extensive response in the final GHG
PSD SIP Call rulemaking to comments nearly identical to comments
received on this rulemaking, 75 FR 77698. EPA incorporates by reference
those responses, as contained in the GHG PSD SIP Call preamble and the
Tailoring Rule Response to Comment document, into this rulemaking. The
following gives examples of references in the GHG PSD SIP Call
rulemaking preamble and record in which EPA responded to these, or
substantially similar, comments:
With respect to the comments that (i) ``EPA's interpretation of the
Act to impose a construction ban based on Section 165(a) is
incorrect''; (ii) ``No statutory language addressing implementation
plan requirements can be construed to produce self-executing changes to
SIPs or FIPs approved or promulgated under section 110 of the Act
unless Congress enacts statutory provisions explicitly amending those
SIPs or FIPs to incorporate new requirements, thereby obviating the
need for rulemaking under section 110(a) or (c) of the Act to effect
revisions to those implementation plans''; and (iii) there is no
support for EPA's ``permit moratorium'' interpretation because (in the
Commenter's opinion) CAA section 165(a) is not self-executing and
approved SIPs and promulgated FIPs can only be changed through section
110 rulemakings to revise those plans, see, for example, 75 FR 77705
(footnote 16), and 75 FR 77710-77711. EPA notes further that the
requirement of CAA section 165(a)(1) that stationary sources that emit
the requisite quantity of pollutants subject to regulation obtain a
pre-construction permit is mandated by the CAA and is automatically
updated to apply to any pollutant newly subject to regulation; thus,
contrary to the Commenter's statement, EPA is not construing the CAA to
``produce self-executing changes to SIPs * * *.'' In addition, today's
action does not create what the Commenter calls a ``permit
moratorium''; in fact, today's rule continues a permitting authority
for GHG-emitting sources for Kansas that had already been established
as of the GHG PSD permitting requirements effective date.\11\ Further,
no ``self-executing changes'' to Kansas's SIP are made in today's
action; EPA is simply approving Kansas's SIP revision, submitted
December 23, 2010, according to the proper process.
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\11\ For the period of January 2, 2011, to the effective date of
this final action, EPA and KDHE have entered into a delegation
agreement which delegated federal authority (established by the GHG
PSD FIP for Kansas, as described above) to issue and modify PSD
permits for sources of GHGs in Kansas to KDHE.
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With respect to the comment that a decision by Judge Posner in
United States v. Cinergy Corp., No. 09-3344 (7th Cir. October 12,
2010), directly addresses this issue, see 75 FR 77705-77706, footnote
16.
With respect to the comment that Kansas would be able to issue PSD
permits after January 2, 2011, even without GHG limits, because its
current SIP is approved and it would be acting consistent with that
approved SIP, EPA notes that it is true that as of January 2, 2011,
Kansas could issue such a permit to cover the non-GHG pollutants
emitted by a source that is major for a pollutant other than GHGs. If
the source emits GHGs in at least the amount specified in the Tailoring
Rule, however, then the source would also need a PSD permit for its GHG
emissions. Kansas already has authority to issue GHG permits by virtue
of the FIP delegation described in footnote 10.
With respect to the comment that ``EPA's rule contemplated that
states have 3 years to revise their SIPs when an NSR-related change
occurs and, assuming without conceding that EPA could impose PSD on
GHGs, EPA should have followed that procedure in this case,'' see 75 FR
77707-77708. In any event, the proper length of time EPA must provide
states to act is also irrelevant to this rule because this action deals
with a SIP revision actually
[[Page 9662]]
submitted by Kansas to EPA for approval. In addition, EPA has also
addressed the issue of whether a construction ban applies in states
with approved PSD SIPs that do not cover GHGs in its Response in
Opposition to Petitioner's Emergency Motion for a Stay Pending Review,
Texas v. EPA, No. 10-1425 (DC Cir. filed January 6, 2011), and in its
Response in Opposition to Motion of National Association of
Manufacturers et al. to File a Response as Amicus Curiae in Support of
Petitioners' Stay Motion (also filed in the Texas case, on January 7,
2011).
EPA disagrees with the Commenter's statement that EPA's proposed
action on Kansas's draft rules is inconsistent with CAA section 110
because it does not provide for federal notice and comment on the final
state action. EPA's proposed approval was based on the draft form of
the State of Kansas's regulations on which the state itself solicited
public comment. As explained in our proposal at 75 FR 70657, EPA
utilized a ``parallel processing'' procedure for this SIP revision.
Under this procedure, EPA proposes rulemaking action concurrently with
the state's procedures for approving a SIP submittal and amending its
regulations (40 CFR part 51, appendix V, 2.3). EPA reviews the proposed
SIP submittal in the same manner in which it reviews a final, adopted
regulation, even though the regulation is not yet adopted in final form
by the state. In doing so, EPA evaluates the draft regulation against
the same approvability criteria as any other SIP submittal. If
substantial changes are made between the draft SIP revision upon which
EPA solicits comment and the final SIP revision submitted by the state,
EPA reissues the final SIP revision for a new round of public comment.
Thus, using the ``parallel processing'' procedure does not avoid any
statutory requirements, and has not done so here. The proposal
published November 18, 2010, gave the public the appropriate
opportunity to comment on the substance of the October 4, 2010, SIP
revision for which EPA is today issuing a final approval. In fact, the
revision adopted by Kansas is identical to the draft regulation which
EPA described in the proposal. Therefore, the Commenter and others had
the opportunity to comment on the exact regulatory language which was
finally adopted by Kansas and is approved in today's action.
Comment 3: The Commenter expresses concerns regarding the legality
of narrowing prior SIP approvals if states cannot interpret their
regulations to include the Tailoring Rule thresholds within the phrase
``subject to regulation.''
Response 3: While EPA does not agree with the Commenter's assertion
that the narrowing approach discussed in EPA's Tailoring Rule is
illegal, the validity of the narrowing approach is irrelevant to the
action that EPA is today taking for Kansas's December 23, 2010, SIP
revision. EPA did not propose to narrow its approval of Kansas's SIP as
part of this action, and in today's final action, EPA is acting to
approve a SIP revision submitted by Kansas and is not otherwise
narrowing its approval of prior submitted and approved provisions in
the Kansas SIP. Accordingly, the legality of the narrowing approach is
not at issue in this rulemaking.
Comment 4: The Commenter states that EPA has failed to meet
applicable statutory and executive order review requirements.
Specifically, the Commenter refers to the statutory requirements and
executive orders for the Paperwork Reduction Act, the Regulatory
Flexibility Act (RFA), the Unfunded Mandates Reform Act, and Executive
Order 13132 (Federalism). Additionally, the Commenter mentions that EPA
has never analyzed the costs and benefits associated with triggering
PSD for stationary sources in Kansas, much less nationwide.
Response 4: EPA disagrees with the Commenter's statement that EPA
has failed to meet applicable statutory and executive order review
requirements. As stated in EPA's proposed approval of Kansas's October
4, 2010, proposed SIP revision, this action merely approves state law
as meeting federal requirements and does not impose additional
requirements beyond those imposed by state law. Accordingly, EPA
approval, in and of itself, does not impose any new information
collection burden, as defined in 5 CFR 1320.3(b) and (c), that would
require additional review under the Paperwork Reduction Act. In
addition, this SIP approval will not have a significant economic impact
on a substantial number of small entities, beyond that which would be
required by the state law requirements, so a regulatory flexibility
analysis is not required under the RFA. Accordingly, this rule is
appropriately certified under section 605(b) of the RFA. Moreover, as
this action approves 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 mandates or significantly
or uniquely affect small governments, such that it would be subject to
the Unfunded Mandates Reform Act. Finally, this action does not have
federalism implications that would make Executive Order 13132
applicable, because it merely approves a state rule implementing a
federal standard and does not alter the relationship or the
distribution of power and responsibilities established in the CAA.
Today's rule is a routine approval of a SIP revision, approving
state law, and does not impose any requirements beyond those imposed by
state law. To the extent these comments are directed more generally to
the application of the statutory and executive order reviews to the
required regulation of GHGs under PSD programs, these comments are
irrelevant to the approval of state law in today's action. However, EPA
provided an extensive response to similar comments in promulgating the
Tailoring Rule. EPA refers the Commenter to the sections in the
Tailoring Rule entitled ``VII. Comments on Statutory and Executive
Order Reviews,'' 75 FR 31601-31603, and ``VI. What are the economic
impacts of the final rule?,'' 75 FR 31595-31601. EPA also notes that
today's action does not in-and-of itself trigger the regulation of
GHGs. To the contrary, GHGs are already being regulated nationally, PSD
permitting for GHG emissions by Kansas is already specifically
authorized under delegation of the existing FIP, and today's action
simply approves existing state laws that accomplish the same thing as
the FIP.
Comment 5: The Commenter states that ``[i]f EPA proceeds with this
action, it should make clear that any incorporation by reference
conducted by Kansas would rest on the continued existence and validity
of the federal regulations on which the incorporation is based.''
Further, the Commenter remarks on the ongoing litigation in the U.S.
Court of Appeals for the DC Circuit. Specifically, regarding EPA's
determination that PSD can be triggered by GHGs or is applicable to
GHGs, the Commenter mentions that ``any vacatur of those regulations
should also be effective to vacate the SIP provision itself since the
SIP would be referencing a regulation that no longer is valid or
exists.''
Response 5: EPA believes that it is most appropriate to take
actions that are consistent with the federal regulations that are in
place at the time the action is being taken. To the extent that any
changes to federal regulations related to today's action result from
pending legal challenges or other actions, EPA will process appropriate
SIP revisions in accordance with the procedures provided in the Act and
EPA's regulations. EPA notes that in an order dated December 10, 2010,
the United
[[Page 9663]]
States Court of Appeals for the DC Circuit denied motions to stay EPA's
regulatory actions related to GHGs. Coalition for Responsible
Regulation, Inc. v. EPA, Nos. 09-1322, 10-1073, 10-1092 (and
consolidated cases), Slip Op. at 3 (DC Cir. December 10, 2010) (order
denying stay motions).
IV. What is the effect of this final action?
Final approval of Kansas's December 23, 2010, SIP revision will
make Kansas's SIP adequate with respect to PSD requirements for GHG-
emitting sources, thereby negating the need for the GHG PSD FIP for
Kansas and the delegation agreement between EPA and KDHE. The FIP is
also being withdrawn today. Additionally, final approval of Kansas's
SIP revision will incorporate into the SIP the GHG emission thresholds
for PSD applicability that were set forth in EPA's Tailoring Rule and
included in the GHG PSD FIP for Kansas, ensuring that smaller GHG
sources emitting below these thresholds will continue to not be subject
to permitting requirements. Pursuant to section 110 of the CAA, EPA is
approving the changes made in Kansas's December 23, 2010, proposed SIP
revision into the state's SIP. However, as we noted in the proposed
approval of the Kansas submittal, 75 FR 70663, this action only
addresses the December 23, 2010, revisions relating to the regulation
of GHGs under the state's PSD program. We intend to act on the state's
revisions to its Title V program separately, as well as Kansas's
separate submittal of changes to the applicability of the PSD program
to contain ethanol production facilities (the ``Ethanol Rule'').
Furthermore, as Kansas has not adopted EPA's ``Fugitive Emissions
Rule,'' today's action does not address the Fugitive Emissions Rule.
The changes to Kansas's SIP-approved PSD program that EPA is
approving today have been reviewed and determined to be consistent with
the Tailoring Rule. Furthermore, EPA has determined that the December
23, 2010, revision to Kansas's SIP is consistent with section 110 of
the CAA. See, e.g., Tailoring Rule, at 75 FR 31561. As a result of
EPA's approval today, the deficiency in Kansas's SIP is corrected and
EPA no longer has the authority for the FIP for Kansas, and so EPA is
also withdrawing the FIP for Kansas. 75 FR 82246 (December 30, 2010).
V. When is this action effective?
The effective date of today's final action is the date that this
notice is published in the Federal Register. In accordance with 5
U.S.C. 553(d), EPA finds there is good cause for this action to become
effective on the date of publication. The effective date upon
publication of this notice for this action is authorized under 5 U.S.C.
553(d)(3), which allows an effective date less than 30 days after
publication ``as otherwise provided by the agency for good cause found
and published with the rule.'' The purpose of the 30-day waiting period
prescribed in section 553(d) is to give affected parties a reasonable
time to adjust their behavior and prepare before the final rule takes
effect. Today's rule, however, does not create any substantively new
regulatory requirements such that affected parties would need time to
prepare before the rule takes effect. Rather, today's rule withdraws
the FIP, replaces the current regulatory requirements under the FIP
with the same requirements under the SIP, shifts current permitting
authority for GHGs to Kansas under its SIP instead of EPA under the
FIP, and negates the need for the delegation agreement that delegated
authority from EPA to KDHE to issue and modify PSD permits for sources
of GHGs in Kansas. With this rule KDHE becomes the permitting authority
for all pollutants (including GHGs) under the SIP-approved program. For
these reasons, EPA finds good cause under 5 U.S.C. 553(d)(3) for this
action to become effective immediately upon publication.
VI. Final Action
EPA is taking final action to approve the state of Kansas's
December 23, 2010, SIP revision, which incorporates changes into the
Kansas Administrative Regulations (28-19-200a and 28-19-350). The SIP
revision Kansas submitted on December 23, 2010, (1) provides the state
with the authority to regulate GHGs under its PSD program, and (2)
establishes appropriate emissions thresholds for determining PSD
applicability with respect to new or modified GHG-emitting stationary
sources in accordance with EPA's Tailoring Rule. EPA has made the
determination that the December 23, 2010, SIP revision is approvable
because it is in accordance with the CAA and EPA regulations, including
regulations pertaining to PSD permitting for GHGs.
Today's action also withdraws the FIP that was previously imposed
in Kansas, and which this SIP revision displaces. Accordingly, EPA is
rescinding the entirety of 40 CFR 52.37(b)(5) (applying the FIP to
Kansas). EPA is taking this FIP withdrawal action as a final rule
without providing an additional opportunity for public comment because
EPA finds that the Administrative Procedure Act (APA) good cause
exemption applies here. Section 553 of the APA, 5 U.S.C. 553(b)(B),
provides that when an Agency for good cause finds that notice and
public procedure are impracticable, unnecessary, or contrary to public
interest, the Agency may issue a rule without providing notice and an
opportunity to comment.
EPA has determined that it is unnecessary or contrary to the public
interest to provide an additional opportunity for public comment on
this action because the withdrawal of the FIP for Kansas is a necessary
and simply ministerial act. Once EPA fully approves the SIP for Kansas
as meeting the requirements of the GHG SIP call, and that approval is
effective, EPA no longer has the authority for the GHG PSD FIP in
Kansas. Because the SIP approval removes EPA's authority for the FIP,
EPA believes it has no option but to withdraw the FIP. Therefore, EPA
is taking this withdrawal action to remove the regulatory text that
applies the GHG PSD FIP requirements to sources in Kansas, and that
action is ministerial. If EPA were to decide to reconsider or reverse
the SIP approval action, it would take any appropriate action with
regard to the FIP at that time. For these reasons, it would serve no
useful purpose to provide an additional opportunity for public comment
on this issue.
EPA also finds that it would be contrary to the public interest to
delay issuing this rule in order to offer additional comment
opportunities. Delaying the withdrawal of the FIP would leave the FIP
in place even though the SIP would now also be in place, which would
result in duplicative permitting authority and, as a result of that,
confusion to the public. Promulgation of this rule serves to clarify
that sources initially covered by the FIP in Kansas are now covered
only by the requirements of the Kansas SIP.
Further, EPA previously provided public notice that the withdrawal
of a GHG PSD FIP for any state to which the FIP applied would be done
at the same time as the approval of a GHG SIP for that state. See 75 FR
at 82251. The public had opportunity to provide comment on this
procedure during the rulemaking process for the GHG PSD FIP rule
referenced above (footnotes 7 and 9). The rulemaking process for Kansas
provided the public with ample opportunity to comment on the
substantive issues related to the SIP approval. To provide an
additional opportunity to comment on the FIP withdrawal action for
Kansas, which cannot alter or affect the terms of the
[[Page 9664]]
SIP approval, would serve no useful purpose and is thus unnecessary.
For these reasons, EPA hereby finds for good cause, pursuant to
section 553 of the APA, that it would be unnecessary and contrary to
the public interest for EPA to offer an additional opportunity for
public comment and a public hearing on this rule. Therefore, pursuant
to section 307(d)(1) the requirements of 307(d), including the
requirement for a public hearing, do not apply to this action.
VII. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting federal requirements and
does not impose additional requirements beyond those imposed by state
law. In addition, withdrawal of the GHG PSD FIP as a result of this
approval of state law merely clarifies that the federal plan no longer
applies. For those reasons, this 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);
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 CAA; 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 SIP is not approved to 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.
The Congressional Review Act, 5 U.S.C. 801 et seq., as amended 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
action 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 CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by April 25, 2011 Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action 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 52
Environmental protection, Air pollution control, Greenhouse gases,
Incorporation by reference, Intergovernmental relations, and Reporting
and recordkeeping requirements.
Dated: February 15, 2011.
Lisa P. Jackson,
Administrator.
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42.U.S.C. 7401 et seq.
Subpart A--General Provisions
Sec. 52.37 [Amended]
0
2. Section 52.37 is amended by removing and reserving paragraph (b)(5).
Subpart R--Kansas
0
3. In Sec. 52.870 (c) the table is amended by revising the entry for
``K.A.R. 28-19-350'' to read as follows:
Sec. 52.870 Identification of plan.
* * * * *
(c) * * *
EPA-Approved Kansas Regulations
----------------------------------------------------------------------------------------------------------------
State
Kansas citation Title effective date EPA approval date Explanation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Construction Permits and Approvals
----------------------------------------------------------------------------------------------------------------
28-19-350................ Prevention of 01/02/2011 2/22/11 [Insert Approval does not include
Significant citation of Kansas's revisions to
Deterioration (PSD) publication]. the Ethanol Rule (72 FR
of Air Quality. 24060, May 1, 2007) and
to the Fugitive
Emissions Rule (73 FR
77882, December 19,
2008).
* * * * * * *
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[[Page 9665]]
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[FR Doc. 2011-3858 Filed 2-18-11; 8:45 am]
BILLING CODE 6560-50-P