[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]


-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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.''
---------------------------------------------------------------------------

    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]
BILLING CODE 6560-50-P