[Federal Register Volume 77, Number 24 (Monday, February 6, 2012)]
[Rules and Regulations]
[Pages 5710-5711]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-2328]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 97

[EPA-HQ-OAR-2009-0491; FRL-9626-2]


Federal Implementation Plans for Iowa, Michigan, Missouri, 
Oklahoma, and Wisconsin and Determination for Kansas Regarding 
Interstate Transport of Ozone: Effect of Stay of Transport Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of Intent.

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SUMMARY: A December 30, 2011 order of the U.S. Court of Appeals for the 
District of Columbia Circuit stayed the Transport Rule, also known as 
the Cross State Air Pollution Rule.\1\ This document sets out EPA's 
interpretation of the effect of the Court's stay on the federal 
implementation plans finalized by EPA on December 15, 2011 (SNFR), 
which included the conclusion that Iowa, Kansas, Michigan, Missouri, 
Oklahoma, and Wisconsin significantly contribute to nonattainment or 
interfere with maintenance of the 1997 ozone National Ambient Air 
Quality Standards (NAAQS) in other states and required sources in five 
states to comply with the Transport Rule's ozone season NOX 
trading program.\2\
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    \1\ Federal Implementation Plans to Reduce Interstate Transport 
of Fine Particulate Matter and Ozone in 27 States; Correction of SIP 
Approvals for 22 States: Final Rule (76 FR 48208, August 8, 2011). 
Available on the Web at http://www.epa.gov/crossstaterule.
    \2\ EPA did not finalize a FIP for Kansas with respect to the 
1997 ozone NAAQS in the SNFR. EPA had previously approved a section 
110(a)(2)(D)(i) SIP submission from the state of Kansas for the 1997 
ozone and 1997 PM2.5 NAAQS on March 9, 2007 (75 FR 
10608), and that SIP submission did not rely on the unlawful CAIR 
trading programs or on the conclusion that compliance with CAIR was 
sufficient to satisfy its 110(a)(2)(D)(i)(I) obligations with 
respect to the 1997 ozone and PM2.5 NAAQS. EPA therefore 
did not have the obligation to promulgate a FIP for Kansas under 
section 110(c)(1) of the CAA, and instead proposed a SIP Call for 
Kansas under section 110(k)(5) of the Act (76 FR 763, January 6, 
2011). EPA proposed to find Kansas' SIP substantially inadequate to 
meet the requirements of 110(a)(2)(D)(i)(I) with respect to the 1997 
ozone NAAQS based on the proposed conclusion that emissions from 
Kansas are significantly contributing to nonattainment or 
interfering with maintenance of the 1997 ozone NAAQS in another 
state. EPA has not taken final action yet on the proposed SIP Call.

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DATES: The effective date of this notice of intent is February 6, 2012.

FOR FURTHER INFORMATION CONTACT: Gabrielle Stevens, U.S. Environmental 
Protection Agency, Clean Air Markets Division, MC 6204J, Ariel Rios 
Building, 1200 Pennsylvania Ave. NW., Washington, DC 20460, telephone 
(202) 343-9252, email at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On July 6, 2011, the EPA issued a final rule promulgating the 
Transport Rule (76 FR 48208, August 8, 2011). The Transport Rule limits 
the interstate transport of emissions of nitrogen oxides 
(NOX) and sulfur dioxide (SO2) that contribute to 
harmful levels of fine particulate matter (PM2.5) and ozone 
in downwind states. The rule identified emissions within 27 states in 
the eastern United States that significantly affect the ability of 
downwind states to attain and maintain compliance with the 1997 and 
2006 fine particulate matter NAAQS and the 1997 ozone NAAQS. EPA 
established trading programs to reduce these emissions through Federal 
Implementation Plans (FIPs) that regulate electric generating units 
(EGUs) in the 27 states.
    As explained in the preambles to the final Transport Rule (76 FR 
48208) and the supplemental notice of final rulemaking (SNFR) (76 FR 
80761), EPA updated and improved its modeling platforms and inputs in 
response to public comments received on the proposed Transport Rule and 
subsequent Notices of Data Availability (NODAs), and performed other 
updates. Therefore, some of the results of the analysis performed for 
the final Transport Rule differed from the results of the analysis 
conducted for the Transport Rule proposal. Under the proposed Transport 
Rule, EPA's analysis did not identify Wisconsin, Iowa, and Missouri as 
states that significantly contribute to nonattainment and/or interfere 
with maintenance of the ozone NAAQS in another state with respect to 
the 1997 ozone NAAQS. Under the final Transport Rule's analysis, 
however, the results indicated that emissions from these states do 
interfere with maintenance of the ozone NAAQS of another state. The 
results also showed that emissions from Missouri significantly 
contribute to nonattainment of the ozone NAAQS in another state. The 
analysis for the final rule also identified two ozone maintenance 
receptors, located in Allegan County, Michigan and Harford County, 
Maryland, which were not identified by modeling conducted for the 
proposed rule. The analysis indicated that five states--Iowa, Kansas, 
Michigan, Oklahoma, and Wisconsin--interfered with maintenance problems 
at these receptors. EPA did not include

[[Page 5711]]

these states in the final Transport Rule with respect to the 1997 ozone 
season NAAQS or finalize ozone season NOX budgets for these 
states, but instead published a supplemental notice of proposed 
rulemaking (SNPR) (76 FR 40662) to provide the public with an 
opportunity to comment on the conclusion that these states 
significantly contribute to nonattainment or interfere with maintenance 
of the 1997 ozone NAAQS in downwind states. EPA finalized the 
supplemental notice of proposed rulemaking on December 15, 2011, which 
was published in the Federal Register on December 27, 2011 (SNFR) (76 
FR 80761). The SNFR found that emissions of NOX from sources 
in Iowa, Kansas, Michigan, Missouri, Oklahoma, and Wisconsin either 
significantly contributed to nonattainment or interfered with 
maintenance in downwind states. The SNFR also finalized FIPs for Iowa, 
Michigan, Missouri, Oklahoma, and Wisconsin that required sources 
within the states to comply with the Transport Rule.\3\
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    \3\ EPA did not finalize a FIP for Kansas. See supra footnote 2.
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    After publication of the final Transport Rule, various parties 
filed petitions for review of EPA's action in the U.S. Court of Appeals 
for the District of Columbia Circuit (EME Homer City Generation, L.P. 
v. EPA, No. 11-1302 and consolidated cases). On December 30, 2011, upon 
the motions of various petitioners, the Court ordered the Transport 
Rule stayed pending the completion of its review.

II. This Notice of Intent

    The Court did not explicitly address the effect of its order on the 
SNFR affecting Iowa, Kansas, Michigan, Missouri, Oklahoma, and 
Wisconsin. Because the underlying programs of the Transport Rule have 
been stayed by the Court, there is no practical way for covered sources 
under the SNFR to comply with those programs. The SNFR employs the same 
methodology, modeling, and analysis as the final Transport Rule and 
extends the programs established in the Transport Rule to additional 
states. The agency will therefore treat the new rule in the same manner 
as the underlying Transport Rule, which has been stayed. EPA does not 
expect covered sources under the SNFR to comply with the provisions of 
that rule for the duration of the Court's stay.

    Dated: January 26, 2012.
Gina McCarthy,
Assistant Administrator.
[FR Doc. 2012-2328 Filed 2-3-12; 8:45 am]
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