[Federal Register Volume 76, Number 139 (Wednesday, July 20, 2011)]
[Rules and Regulations]
[Pages 43143-43149]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-17741]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R07-OAR-2011-0279; FRL-9436-1]


Approval and Promulgation of Air Quality Implementation Plan; 
Kansas; Final Disapproval of Interstate Transport State Implementation 
Plan Revision for the 2006 24-hour PM2.5 NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Pursuant to our authority under the Clean Air Act (CAA or 
Act), the Environmental Protection Agency (EPA) is taking final action 
to disapprove the portion of the ``Infrastructure'' State 
Implementation Plan (SIP) submittal from the State of Kansas intended 
to address the CAA section relating to the ``interstate transport'' 
requirements for the 2006 24-hour fine particle (PM2.5) 
National Ambient Air Quality Standards (NAAQS) that prohibit a state 
from significantly contributing to nonattainment or interfering with 
maintenance of the NAAQS in any other state. This final action to 
disapprove the ``interstate transport'' portion of the Kansas SIP 
submittal, received by EPA on April 12, 2010, only relates to those 
provisions and does not address the other portions of Kansas' April 12, 
2010, submission. The rationale for this action and additional detail 
on this disapproval was described in EPA's proposed rulemaking 
published in the Federal Register on the March 18, 2011. The effect of 
this action will be the

[[Page 43144]]

promulgation of a Federal Implementation Plan (FIP) for Kansas no later 
than two years from the date of disapproval. The proposed Transport 
Rule, when final, is the FIP that EPA intends to implement for Kansas.

DATES: Effective Date: This rule is effective on August 19, 2011.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R07-OAR-2011-0279. All documents in the docket are listed on 
the http://www.regulations.gov index. Although listed in the index, 
some information is not publicly available, i.e., Confidential Business 
Information (CBI) 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 U.S. Environmental Protection Agency, Region 7, in the Air Planning 
and Development Branch of the Air and Waste Management Division, 901 
North 5th Street, Kansas City, Kansas 66101. EPA requests that, if at 
all possible, you contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section to schedule your inspection. The interested 
persons wanting to examine these documents should make an appointment 
with the office at least 24 hours in advance. The Regional Office 
official hours of business are Monday through Friday, 8 to 4:30, 
excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Ms. Elizabeth Kramer, Environmental 
Scientist, Air Planning and Development Branch, U.S. 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].

Judicial Review

    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 September 19, 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).)

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. These sections provide 
additional information on this final action:

I. Background
II. EPA's Responses to Comments on the Proposal
III. Final Action
IV. Administrative Requirements

I. Background

    On March 18, 2011 (76 FR 14831-14835), EPA proposed to disapprove a 
portion of the ``Infrastructure'' SIP (CAA 110(a)(1) and (2)) submittal 
from the State of Kansas relating to the interstate transport element 
of infrastructure (CAA section 110(a)(2)(D)(i)(I)). For additional 
detail on this final action, see the proposed rulemaking.
    Section 110(a)(2) of the CAA lists the thirteen required elements 
that ``infrastructure'' SIPs must address, as applicable, including 
section 110(a)(2)(D)(i), which pertains to interstate transport of 
certain emissions. These ``good neighbor'' provisions require each 
state to submit a SIP that prohibits emissions which adversely affect 
another state in the ways contemplated in the statute. The section 
110(a)(2)(D)(i), portion of Kansas' SIP must prevent sources in the 
State from emitting pollutants in amounts which will: (I) Contribute 
significantly to nonattainment of the NAAQS in other states and 
interfere with maintenance of the NAAQS in other states and (II) 
interfere with provisions to prevent significant deterioration of air 
quality in other states or interfere with efforts to protect visibility 
in other states.
    On April 12, 2010, EPA received a SIP revision from the State of 
Kansas intended to address the requirements of section 110(a)(2) 
including the requirements of section 110(a)(2)(D)(i) for the 2006 24-
hour PM2.5 NAAQS. In this final rulemaking, EPA is 
disapproving only the 110(a)(2)(D)(i)(I) portion of the submittal that 
pertains to prohibiting sources in Kansas from emitting pollutants that 
significantly contribute to nonattainment or interfere with maintenance 
of the 2006 24-hour PM2.5 NAAQS in other states. The 
elements on which we are taking action today are severable portions of 
the submittal. EPA plans to act on the additional portions of the 
State's submittal in a subsequent action.
    The requirements of section 110(a)(2)(D)(i)(I), as well as EPA's 
analysis of the State's submission, are explained in detail in the 
proposal. The reader should refer to the proposal for further 
explanation of EPA's rationale for the proposed disapproval.

II. EPA's Responses to Comments on the Proposal

Overview of Comments

    Formal comments were received from commenters on behalf of two 
utility companies in Kansas (the Kansas City Board of Public Utilities 
and Westar Energy) regarding EPA's March 18, 2011 proposed disapproval 
(76 FR 14831). The commenters submitted identical comments regarding 
EPA's proposed rulemaking. EPA has summarized the comments and 
responded to each within this section of this final rulemaking.
    1. Comment: The commenters argued that EPA's proposed disapproval 
action did not clearly describe how the State lacked a technical 
demonstration showing that Kansas sources did not significantly 
contribute to nonattainment or interfere with maintenance of the 2006 
PM2.5 NAAQS. The commenters stated that the State's 
demonstration consisted of the following: (1) Kansas met the 
demonstration requirement ``by indicating that'' its sources do not 
significantly interfere with attainment or maintenance in downwind 
states; and (2) Kansas supported this assertion by stating that Kansas 
sources had reduced PM2.5 precursor emissions (below 2005 
National Emissions Inventory levels) by 32 percent for nitrogen oxides 
(NOX) and 58 percent for sulfur oxides (SOx), 
``suggesting the State's emissions would not exceed'' the 2006 
PM2.5 NAAQS.
    EPA Response: In the proposal, EPA stated two bases for its 
proposed disapproval: (1) Absence of a technical demonstration showing 
that Kansas sources do not significantly contribute to nonattainment or 
interfere with maintenance of the 2006 24-hour PM2.5 NAAQS; 
and (2) information in the preliminary modeling for EPA's Transport 
Rule which conflicted with the State's conclusory statement that Kansas 
sources did not significantly impact downwind nonattainment or 
interfere with maintenance. The mere ``indication'' that Kansas sources 
do not significantly contribute to downwind nonattainment or interfere 
with maintenance is not a demonstration, but rather an unsupported 
conclusion. A statement regarding decreases in PM2.5 
precursor emissions compared to a 2005 inventory does not ``suggest,'' 
much less demonstrate, that the air quality impact of those emissions 
reductions on

[[Page 43145]]

downwind concentrations of PM2.5 are insignificant.
    Kansas included the following information in its attempt to address 
110(a)(2)(D)(i) requirements. The submittal described that Kansas has 
adopted, by reference, the Federal Prevention of Significant 
Deterioration regulations into the Kansas Air Regulations. In the 
submission, Kansas articulated its future intent to incorporate the 
new, 24-hour PM2.5 NAAQS into the State air regulations. 
Kansas also described its Regional Haze SIP to address visibility 
requirements, which is currently pending EPA review. In addition, the 
submittal included a summary of the emission reductions (in tons per 
year) of both NOX and SOX anticipated to be 
achieved from four of the electric generating units (EGUs) in Kansas. 
Kansas then described the percentage of emission reductions expected 
from those facilities compared to previous emissions recorded in the 
National Emissions Inventory from 2005. In the submittal, Kansas 
described certain projected emissions reductions from EGUs but did not 
submit any information on the impact of emissions either from the four 
units discussed in the submittal, or from other sources in the State of 
Kansas, on downwind nonattainment and maintenance of the 2006 24-hour 
PM2.5 NAAQS in other states. Kansas did not submit an 
analysis of emissions from Kansas sources on downwind areas. In 
addition, the Regional Haze SIP submission referenced in the 
infrastructure SIP submission does not contain such analysis. The 
submittal lacked the needed information and analysis to address the 
requirements of CAA section 110(a)(2)(D)(i)(I) to demonstrate that: (1) 
Kansas does not have a significant contribution on nonattainment of the 
NAAQS and interference with maintenance of the NAAQS in other states; 
or (2) that the State has adequate measures in place to eliminate any 
significant contribution to nonattainment of the NAAQS and interference 
with maintenance of the NAAQS in other states. There was no 
demonstration that the requirements of section 110(a)(2)(D)(i)(I) have 
been met with respect to the 2006 PM2.5 NAAQS.
    2. Comment: The commenters argued that EPA's proposed disapproval 
action\1\ improperly relied on the non-final, preliminary modeling 
performed for the proposed Transport Rule \2\ (which showed that 
emissions from the State of Kansas significantly contributed to 
nonattainment and interference with maintenance of the 2006 24-hour 
PM2.5 NAAQS in downwind areas). The commenters posit that, 
by relying on the modeling results of the proposed Transport Rule 
(completed after Kansas submitted its SIP), EPA had determined that the 
proposed Transport Rule modeling ``superseded'' Kansas' submittal, and 
that Kansas could receive approval of its SIP only if it had 
anticipated the subsequent modeling and had addressed the modeling in 
its SIP submittal.
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    \1\ See EPA's proposed disapproval on March 18, 2011 (76 FR 
14831-14835).
    \2\ See ``Federal Implementation Plans to Reduce Interstate 
Transport of Fine Particulate Matter and Ozone; Proposed Rule,'' 75 
FR 45210 (August 2, 2010).
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    EPA Response: In the proposed disapproval of the Kansas SIP, EPA 
neither stated nor implied that Kansas could only have avoided a 
disapproval by addressing the proposed Transport Rule modeling in its 
original submittal. As stated in response to comment 1 above, in the 
proposal EPA stated two bases for its proposed disapproval: (1) Absence 
of a technical demonstration showing that Kansas sources do not 
significantly contribute to nonattainment or interfere with maintenance 
of the 2006 24-hour PM2.5 NAAQS (discussed in detail in the 
response to comment 1, above); and (2) information in the preliminary 
modeling for the Transport Rule which conflicted with the State's 
conclusory statement that Kansas sources did not significantly impact 
downwind nonattainment or interfere with maintenance of the 2006 NAAQS. 
With respect to the latter basis, the modeling for the proposed 
Transport Rule was not available to Kansas when it submitted the SIP 
and could not have been considered by Kansas at that time. The proposed 
disapproval of the Kansas submittal was not based on the fact that 
Kansas did not address the proposed Transport Rule modeling. However, 
the modeling was relevant to EPA's proposed disapproval of the Kansas 
SIP, particularly in light of the fact that Kansas did not provide any 
technical demonstration at all regarding the interstate contribution 
issue, as discussed in the response to Comment 1. Commenters had the 
opportunity, and in fact did, comment on the applicability of the 
preliminary modeling to EPA's proposed action. EPA has now completed 
the modeling for the final Transport Rule and, as indicated by the 
technical support documents (TSDs) for this action, Kansas in fact 
significantly contributes to downwind nonattainment in another state 
and interferes with maintenance of the 2006 24-hour PM2.5 
NAAQS in another state. Please see the TSDs for the final modeling and 
contribution analysis as they relate to this action.
    Nevertheless, the lack of any technical demonstration is sufficient 
basis to disapprove the SIP for this portion of the infrastructure 
element. However, as discussed in EPA's proposed disapproval, EPA also 
noted that we had preliminary information from the modeling performed 
for the proposed Transport Rule showing that Kansas sources 
significantly contribute to nonattainment and interfere with 
maintenance of the 2006 24-hour PM2.5 NAAQS in downwind 
areas.\3\ At proposal for this action, it was appropriate for EPA to 
consider technical information available for the proposed Transport 
Rule, particularly in light of the complete absence of any air quality 
analysis in the Kansas submittal regarding downwind impacts of Kansas 
sources. EPA did not determine, as suggested by the commenters, that 
the preliminary Transport Rule modeling ``superseded'' the Kansas 
submittal. The preliminary modeling merely provided an air quality 
impact analysis that the Kansas submittal lacked, and provided evidence 
that the mere assertion by Kansas of noncontribution was not only 
unsupported, but also incorrect. As noted above, the final modeling for 
the Transport Rule indicates that Kansas in fact significantly 
contributes to downwind nonattainment in another state and interferes 
with maintenance of the 2006 24-hour PM2.5 NAAQS in another 
state.
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    \3\ See Section IV on Defining ``Significant Contribution'' and 
``Interference With Maintenance,'' 75 FR 45229 of ``Federal 
Implementation Plans to Reduce Interstate Transport of Fine 
Particulate Matter and Ozone; Proposed Rule,'' 75 FR 45210 (August 
2, 2010).
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    3. Comment: Based on language in EPA's 2009 Guidance document,\4\ 
commenters argued that EPA should have issued an incompleteness finding 
for the interstate transport (section 110(a)(2)(D)(i)(I)) portion of 
the submittal rather than issuing EPA's proposed disapproval action. 
The commenters argue that if EPA would have issued an incompleteness 
finding before the end of EPA's six month statutory time-frame for 
determining completeness, Kansas could have cured its incomplete SIP 
submittal by addressing the preliminary modeling for the Transport Rule 
in preparing the required technical demonstration to

[[Page 43146]]

address interstate transport requirements. The commenters further argue 
that, by choosing the disapproval option rather than the option of 
finding the submittal incomplete, the only remedial action is the FIP. 
Commenters assumed that EPA expected the State of Kansas to respond to 
the preliminary modeling of the proposed Transport Rule but that, as 
directed by the 2009 Guidance, Kansas was not allowed to wait until the 
preliminary Transport Rule modeling was issued to develop the SIP 
submittal.
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    \4\ See William T. Harnett, Director, Air Quality Policy 
Division, Office of Air Quality Planning and Standards. ``Guidance 
on SIP Elements Required Under Sections 110(a)(1) and (2) for the 
2006 24-hour Fine Particle (PM2.5) National Ambient Air 
Quality Standards.'' Memorandum to EPA Air Division Directors, 
Regions I-X (September 25, 2009).
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    EPA Response: EPA reiterates the explanation of its rationale for 
the disapproval described in response to Comments 1 and 2, above. In 
addition, the commenters' assertion that EPA put the State at an unfair 
disadvantage by not finding the submittal incomplete instead of issuing 
a proposed disapproval is incorrect. We note initially that the 
commenters' implicit conclusion that an incompleteness finding would 
not have triggered FIP obligations is not correct. Section 110(c)(1) of 
the CAA provides that the FIP obligation is triggered either upon 
disapproval of a SIP, or upon a determination that a state has failed 
to submit a SIP (or has submitted a SIP determined to be incomplete). 
In fact, an incompleteness finding would have triggered EPA's FIP 
obligation sooner than a final disapproval of the SIP. An 
incompleteness finding and a final disapproval each trigger a FIP 
clock. If EPA found the submittal to be incomplete, it would trigger a 
FIP obligation as of the date of the finding. Because such a finding is 
not subject to notice and comment rulemaking, while a disapproval 
requires such rulemaking, the FIP obligation would have been triggered 
much sooner.
    Therefore, even if relevant to EPA's disapproval action, EPA did 
not create any unfair disadvantage for the State by its proposal to 
disapprove the submittal. Moreover, the State of Kansas did not submit 
any comments on the proposed rulemaking and did not submit any 
technical analysis in response to the proposed disapproval. The 
commenters speculate that, if EPA had determined the SIP was 
incomplete, Kansas would have submitted a supplement to its SIP 
submittal addressing the proposed Transport Rule modeling. The 
commenters imply that the proposed disapproval precluded Kansas from 
curing defects in the original submittal. However, in fact the proposed 
disapproval solicited comment on the proposed action, and did not 
foreclose Kansas from submitting the same information and analysis that 
the commenters argue would have been submitted after an incompleteness 
finding. Neither the commenters nor Kansas submitted any analysis in 
response to the proposed disapproval which might be relevant to 
downwind impacts of Kansas sources on PM2.5 concentrations. 
Therefore, Kansas was not disadvantaged by the proposed disapproval as 
contrasted with the incompleteness finding option advocated by the 
commenters.
    4. Comment: Commenters suggest that at the time of Kansas' 
submittal, Kansas' emissions had not ``been deemed'' by EPA to 
contribute to or interfere with downwind nonattainment or maintenance 
in other areas. The commenters assert that Kansas properly followed 
EPA's 2009 Guidance by ``indicating'' that ``emissions from the State 
do not significantly interfere with attainment or maintenance of the 
2006 24-hour PM2.5 NAAQS in downwind states.'' Furthermore, 
the commenters state that certain facts (such as NOX and 
SOX percent reductions over the values used in the 
preliminary Transport Rule modeling) demonstrate that Kansas submitted 
the required demonstration.
    EPA Response: See also EPA's responses to Comment 1, 2 and 3 above. 
In addition, the CAA section 110(a)(2)(D)(i)(I) requires that states 
develop SIPs that demonstrate that a SIP is adequate to prohibit 
sources in the state from significantly contributing to downwind 
nonattainment or interference with maintenance of a new or revised 
NAAQS in another state. The CAA places responsibility on the State to 
show that this requirement is met. Neither the Act nor the 2009 
Guidance referenced by the commenters indicate that this requirement 
can be met by merely concluding that EPA has not found any significant 
contribution or interference with maintenance. It is also not 
sufficient to merely ``indicate'' that there is no significant downwind 
contribution. In addition, as discussed in detail in the response to 
Comment 1, the mere assertion that emissions from a limited number of 
Kansas sources are projected to be lower than assumed by EPA in the 
preliminary Transport Rule modeling is not sufficient to demonstrate 
that this requirement is met.
    Furthermore, statements about emission reductions from certain 
sources in a state do not inform the entire decision about the air 
quality impacts of sources in the State to a neighboring state. An 
analysis showing that source emissions are so low as to be 
insignificant might be some indication that a source could not 
reasonably be expected to contribute to downwind air quality problems. 
But that is not the argument made by the commenter or by Kansas in its 
SIP submission. Kansas' SIP submission merely stated that four sources 
will reduce emissions of NOX (32 percent total reduction) 
and SOX (58 percent total reduction), below 2005 National 
Emissions Inventory levels, ``in the coming years.'' However, there is 
no indication of the air quality impact of these anticipated 
reductions. Therefore, and for reasons also detailed in response to 
comment 1, the Kansas submission does not provide a demonstration that 
the SIP prohibits Kansas sources from significantly contributing to 
downwind nonattainment, or from interfering with maintenance of, the 
2006 PM2.5 NAAQS.
    5. Comment: The commenters argue that EPA failed to identify a 
statutory basis for reliance on preliminary modeling from an ongoing 
rulemaking (Transport Rule) to support disapproval. The commenters 
state that this reflects a failure to follow the path set out in the 
CAA section 110(c)(1). Commenters assert that the CAA authorizes the 
Administrator to impose a FIP only when a current SIP has been found 
lacking after promulgation of new rules and the State had not acted to 
cure the resulting deficiency. They stated that EPA ``would have had to 
promulgate a proposed regulation first and give the State a chance to 
submit a substitute regulation.'' The commenters cite Bethlehem Steel 
Corporation v. Gorsuch, 742 F.2d 1028 (7th Cir. 1984) as their 
authority for these arguments.
    EPA Response: EPA has described in detail above, particularly in 
response to comments 1 and 2, the basis for its reliance on the 
proposed Transport Rule modeling in this disapproval action. The 
statutory basis for EPA's disapproval action is (1) CAA section 
110(a)(2)(D)(i)(I), which requires SIPs to address certain 
contributions to downwind nonattainment and maintenance, as discussed 
in response to previous comments, and (2) section 110(k)(1) and (2) 
which require disapproval of portions of plans which do not meet the 
requirements of the Act, within 1 year of a determination that a SIP 
submittal is complete. The requirements of section 110(a)(2)(D)(i)(I) 
are triggered upon promulgation or revision of a NAAQS (see section 
110(a)(1) of the CAA). The requirement that the SIP must address this 
provision is imposed by the statute, not by promulgation by EPA of any 
separate rule (other than the rule promulgating or revising a NAAQS). 
Once EPA promulgated the 2006 revisions to the PM2.5 
standards, all of the applicable requirements of section 110(a)(2) were 
triggered, including section

[[Page 43147]]

110(a)(2)(D)(i)(I). The Kansas submittal was in response to this 
specific statutory requirement. Because EPA is disapproving the SIP 
submittal (only as it relates to section 110(a)(2)(D)(i)(I)), EPA's 
obligation to promulgate a FIP is also triggered, upon disapproval of 
the SIP submittal, in whole or in part, as required by section 
110(c)(1). CAA section 110(c)(1) authorizes EPA to promulgate a FIP 
``at any time within 2 years after'' disapproving a SIP submission.
    Commenters reliance on Bethlehem Steel is also misplaced. That case 
involved an EPA action approving a portion of a state's emissions 
regulation, but not approving another portion of the same regulation, 
thus rendering the regulation less stringent than the state intended. 
In rejecting EPA's approach, the Court stated: ``No more can the EPA, 
in the guise of partial approval, remove words of limitation; it must 
follow the procedures that the Act prescribes for making state 
regulations stricter.'' (Bethlehem Steel, 742 F. 2d at 1036.) The 
procedures described by the Court for that purpose (i.e., making a 
state regulation more stringent) are not applicable to the disapproval 
of the section 110(a)(2)(D)(i)(I) portion of the Kansas SIP submittal. 
EPA's action has no effect on any Kansas emissions control regulation, 
and no effect on the stringency of any state requirement. EPA's action 
merely follows the procedures of the CAA described above.
    6. Comment: The commenters argue that the rationale for the 
proposed disapproval was inconsistent with the rationale for the 
proposed SIP call for Kansas (relating to interstate transport elements 
for the 1997 ozone NAAQS), in which EPA stated that it would not 
finalize the SIP Call if the final Transport Rule modeling does not 
show significant contribution to downwind nonattainment or interference 
with maintenance of the ozone standard. The commenter also asserts that 
this action ``reversed the prior findings'' that Kansas does not 
significantly contribute to nonattainment or interfere with maintenance 
in downwind areas.
    EPA Response: The rationale for the proposed SIP Call is explained 
in detail in the proposed SIP call rule for Kansas (76 FR 763, January 
6, 2011). That action involves a different ambient standard (1997 ozone 
as compared to 2006 PM2.5), and different factual and legal 
considerations from those relating to this disapproval action. As 
explained in the proposed SIP Call, EPA had previously determined that 
Kansas sources did not significantly contribute to downwind 
nonattainment or interference with maintenance of the 1997 ozone 
standards (72 FR 10608). Because subsequent information (the proposed 
Transport Rule modeling) showed that the 2007 determination might be in 
error, EPA proposed the SIP Call, for the reasons stated in the 
proposal. However, a final determination of that issue can only be made 
after EPA finally determines, under the Transport Rule, whether Kansas 
sources do have downwind contribution to attainment or maintenance of 
the 1997 ozone standard.
    In contrast, this disapproval of the section 110(a)(2)(D)(i)(I) 
portions of the Kansas 2006 PM2.5 SIP, contrary to 
assertions of the commenters, does not implicate any prior EPA 
determinations with respect to the specific NAAQS (2006 
PM2.5). Unlike the Kansas SIP for the 1997 ozone standard, 
EPA had not previously determined that the SIP is adequate with respect 
to the 2006 PM2.5 standard, to meet the requirements of 
section 110(a)(2)(D)(i)(I). As described in detail in responses to 
Comments 1 and 2, this disapproval action is based on the lack of a 
demonstration by Kansas that the SIP is adequate to meet the 
requirements of section 110(a)(2)(D)(i)(I). Unlike the Kansas SIP Call 
for 1997 ozone standard (76 FR 763), this determination is not 
dependent on the outcome of the final Transport Rule.\5\ The rationales 
for the proposed SIP Call and this action are not inconsistent, but 
merely address different matters, as discussed above.
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    \5\ We reiterate, however, as stated in response to Comment 2, 
that the modeling for the final Transport Rule has now been 
completed.
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    7. Comment: The commenters argue that the proposed disapproval 
relating to the 2006 PM2.5 NAAQS is inconsistent with the 
approval of Kansas' demonstration of lack of contribution and 
noninterference with respect to the ``1997 NAAQS.'' Commenters assert 
that the ``same type of technical demonstration'' was made for those 
NAAQS as for the 2006 PM2.5 NAAQS, and that EPA is being 
inconsistent in its treatment of the two submissions.
    EPA Response: With respect to the reference to the technical 
demonstration for the 1997 NAAQS, it is not clear whether the commenter 
is referencing the demonstration for the ozone or PM2.5 
standards, or both. With respect to ozone, Kansas made a detailed 
technical demonstration with respect to its downwind contribution for 
ozone, based on the information available at the time. The 
demonstration included emissions analyses, analyses of the proximity of 
Kansas sources to downwind ozone air quality problems, and back-
trajectory analyses. As explained in the proposed SIP Call for the 1997 
ozone NAAQS referenced above, EPA has preliminarily determined that 
more recent analyses made in conjunction with the proposed Transport 
Rule, contradict the conclusions of noninterference with respect to the 
1997 ozone NAAQS. This issue is outside the scope of this rulemaking, 
but notably, the demonstration provided by Kansas with respect to the 
1997 ozone NAAQS contained far more information than the conclusory 
statements in the 2006 PM2.5 SIP submitted (discussed above 
particularly in the response to Comment (1) Which is the subject of 
this rulemaking).
    With respect to the demonstration made by Kansas for the 1997 
PM2.5 standards, we note that Kansas relied on the modeling 
performed for the Clean Air Interstate Rule, which, based on the 
information available at that time, showed that Kansas did not 
significantly contribute to downwind nonattainment or interfere with 
maintenance of the 1997 PM2.5 standard. This modeling did 
not consider and is not relevant to contributions with respect to the 
2006 NAAQS, but for the 1997 PM2.5 NAAQS, it was adequate at 
the time to support a demonstration of noncontribution by Kansas.
    For the reasons stated above, and as described further in response 
to Comment 1, we disagree with the commenters' generalized assertion 
that the State's documentation regarding contribution for the 1997 
NAAQS was ``the same type of technical demonstration'' utilized for the 
2006 PM2.5 NAAQS. As stated above, there was no technical 
demonstration with respect to the latter NAAQS.

III. Final Action

    EPA is taking final action to disapprove a portion of the 
submission from the State of Kansas intended to demonstrate that Kansas 
has adequately addressed the elements of CAA section 110(a)(2)(D)(i)(I) 
that require the Kansas' SIP to include adequate provisions to prohibit 
air pollutant emissions from sources within the State from 
significantly contributing to nonattainment in or interference with 
maintenance of the 2006 24-hour PM2.5 NAAQS in any other 
state. EPA has determined that the Kansas submission does not contain 
adequate provisions to prohibit air pollutant emissions from within the 
State that significantly contribute to nonattainment in or interference 
with maintenance of the 2006 24-hour PM2.5 NAAQS in other

[[Page 43148]]

downwind states. As noted in the Background above, the final modeling 
for EPA's Transport Rule indicates that Kansas in fact significantly 
contributes to downwind nonattainment in another state and interferes 
with maintenance of the 2006 24-hour PM2.5 NAAQS in another 
state.
    Any remaining elements of the submittal, including language to 
address other CAA section 110(a)(2) elements, including section 
110(a)(2)(D)(i)(II) regarding interference with measures required in 
the applicable SIP for another state designed to prevent significant 
deterioration of air quality and protect visibility, are not addressed 
in this action. EPA is disapproving only the provisions which relate to 
the section 110(a)(2)(D)(i)(I) portion of the submittal and intends to 
act on the remainder of the submittal in a subsequent action.
    Also, under section 179(a) of the CAA, final disapproval of a 
submittal that addresses a requirement of a Part D Plan (42 U.S.C.A. 
7501-7515), or is required in response to a finding of substantial 
inadequacy as described in section 7410(k)(5) (SIP Call), starts a 
sanctions clock. The provisions in the submittal that we are 
disapproving were not submitted to meet either of those requirements. 
Therefore, no sanctions are triggered.
    The full or partial disapproval of a SIP revision triggers the 
requirement under section 110(c) that EPA promulgate a FIP no later 
than 2 years from the date of the disapproval unless the state corrects 
the deficiency, and the Administrator approves the plan or plan 
revision before the Administrator promulgates such FIP.
    EPA's final Transport Rule and related FIP, if finalized in the 
manner proposed, may address these interstate transport requirements of 
CAA section 110(a)(2)(D)(i)(I) for the State of Kansas for the 2006 24-
hour PM2.5 NAAQS.

IV. Administrative Requirements

    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 act on state law as meeting 
Federal requirements and does not impose additional requirements beyond 
those imposed by state law.

Executive Order 12866, Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under the Executive Orders 12866 and 
13563 (76 FR 3821, January 21, 2011).

Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq, 
because this SIP disapproval under section 110 of the CAA will not in-
and-of itself create any new information collection burdens but simply 
disapproves certain state requirements for inclusion into the SIP. 
Burden is defined at 5 CFR 1320.3(b).

Regulatory Flexibility Act

    The Regulatory Flexibility Act generally requires an agency to 
conduct a regulatory flexibility analysis of any rule subject to notice 
and comment rulemaking requirements unless the agency certifies that 
the rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small not-for-profit enterprises, and small governmental jurisdictions. 
For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business as defined 
by the Small Business Administration's regulations at 13 CFR 121.201; 
(2) a small governmental jurisdiction that is a government of a city, 
county, town, school district or special district with a population of 
less than 50,000; and (3) a small organization that is any not-for-
profit enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of today's rule on small 
entities, I certify that this action will not have a significant impact 
on a substantial number of small entities. This rule does not impose 
any requirements or create impacts on small entities. This SIP 
disapproval under section 110 and of the CAA will not in-and-of itself 
create any new requirements but simply disapproves certain State 
requirements for inclusion into the SIP. Accordingly, it affords no 
opportunity for EPA to fashion for small entities less burdensome 
compliance or reporting requirements or timetables or exemptions from 
all or part of the rule. The fact that the CAA prescribes that various 
consequences (e.g., higher offset requirements) may or will flow from 
this disapproval does not mean that EPA either can or must conduct a 
regulatory flexibility analysis for this action. Therefore, this action 
will not have a significant economic impact on a substantial number of 
small entities.

Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-
1538 for state, local, or tribal governments or the private sector. EPA 
has determined that the disapproval action does not include a Federal 
mandate that may result in estimated costs of $100 million or more to 
either state, local, or tribal governments in the aggregate, or to the 
private sector. This action disapproves pre-existing requirements under 
State or local law, and imposes no new requirements. Accordingly, no 
additional costs to state, local, or tribal governments, or to the 
private sector, result from this action.

Executive Order 13132, Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by state and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the states, on the relationship between the national 
government and the states, or on the distribution of power and 
responsibilities among the various levels of government.''
    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. This action merely disapproves 
certain state requirements for inclusion into the SIP and does not 
alter the relationship or the distribution of power and 
responsibilities established in the CAA. Today's final disapproval does 
not have federalism implications. Thus, Executive Order 13132 does not 
apply to this action.

Executive Order 13175, Consultation and Coordination With Indian Tribal 
Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP 
EPA is disapproving 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. Thus, Executive

[[Page 43149]]

Order 13175 does not apply to this action.

Executive Order 13045, Protection of Children From Environmental Health 
Risks and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
action is not subject to Executive Order 13045 because it because it is 
not an economically significant regulatory action based on health or 
safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 
1997). This SIP disapproval under section 110 will not in-and-of itself 
create any new regulations but simply disapproves certain state 
requirements for inclusion into the SIP.

Executive Order 13211, Actions That Significantly Affect Energy Supply, 
Distribution or Use

    This action is not subject to Executive Order 13211 (66 FR 28355, 
May 22, 2001) because it is not a significant regulatory action under 
Executive Order 12866.

National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, Section 12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. NTTAA directs EPA to 
provide Congress, through Office of Management and Budget, explanations 
when the Agency decides not to use available and applicable voluntary 
consensus standards. EPA believes that this action is not subject to 
requirements of section 12(d) of NTTAA because application of those 
requirements would be inconsistent with the CAA.

Executive Order 12898: Federal Actions To Address Environmental Justice 
in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629 Feb. 16, 1994) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA lacks the discretionary authority to address environmental 
justice in this action. In reviewing SIP submissions, EPA's role is to 
approve or disapprove state choices, based on the criteria of the CAA. 
Accordingly, this action merely disapproves certain state requirements 
for inclusion into the SIP under section 110 of the CAA and will not 
in-and-of itself create any new requirements. Accordingly, it 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.

Congressional Review

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this 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).

Statutory Authority

    The statutory authority for this action is provided by section 110 
of the CAA, as amended (42 U.S.C. 7410).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Particulate matter.

    Dated: June 28, 2011.
Karl Brooks,
Regional Administrator, Region 7.
[FR Doc. 2011-17741 Filed 7-19-11; 8:45 am]
BILLING CODE 6560-50-P