[Federal Register Volume 86, Number 10 (Friday, January 15, 2021)]
[Rules and Regulations]
[Pages 3818-3820]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-28120]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R07-OAR-2020-0422; FRL-10018-59-Region 7]
Air Plan Approval; Kansas; Infrastructure State Implementation
Plan Requirements for the 2015 Ozone National Ambient Air Quality
Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is taking final
action to approve certain elements of a State Implementation Plan (SIP)
submission from the State of Kansas addressing the applicable
requirements of section 110 of the Clean Air Act (CAA) for the 2015
Ozone (O3) National Ambient Air Quality Standard (NAAQS).
Section 110 requires that each state adopt and submit a SIP revision to
support the implementation, maintenance, and enforcement of each new or
revised NAAQS promulgated by the EPA. These SIPs are commonly referred
to as ``infrastructure'' SIPs. The infrastructure requirements are
designed to ensure that the structural components of each state's air
quality management program are adequate to meet the state's
responsibilities under the CAA.
DATES: This final rule is effective on February 16, 2021.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R07-OAR-2020-0422. All documents in the docket are
listed on the https://www.regulations.gov website. 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, is not placed on the
internet and will be publicly available only in hard copy form.
Publicly available docket materials are available through https://www.regulations.gov or please contact the person identified in the FOR
FURTHER INFORMATION CONTACT section for additional information.
FOR FURTHER INFORMATION CONTACT: William Stone, Environmental
Protection Agency, Region 7 Office, Air Quality Planning Branch, 11201
Renner Boulevard, Lenexa, Kansas 66219; telephone number: (913) 551-
7714; email address: [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and
``our'' refer to the EPA. A technical support document (TSD) is
included in the rulemaking docket.
Table of Contents
I. Background
II. What is being addressed in this document?
III. Have the requirements for approval of a SIP revision been met?
IV. What is the EPA's response to comments?
V. What action is the EPA taking?
VI. Statutory and Executive Order Reviews
I. Background
On September 11, 2020, the EPA proposed to approve Kansas'
infrastructure SIP submission for the 2015 O3 NAAQS in the
Federal Register (85 FR 56198; September 11, 2020). The EPA solicited
comments on the proposed approval of the infrastructure SIP submission
and received three separate comments that are addressed in this
document.
II. What is being addressed in this document?
The EPA is approving the infrastructure SIP submission, submitted
by the state by letter dated September 27, 2018,\1\ and supplemented by
letter dated February 6, 2020, in accordance with section 110(a)(1) of
the CAA. Specifically, the EPA is approving the following
infrastructure elements of section 110(a)(2) of the CAA: (A) through
(C), (D)(i)(II)- prevent significant deterioration of air quality
(prong 3) and protection of visibility (prong 4), (D)(ii), (E) through
(H), and (J) through (M). Elements of section 110(a)(2)(D)(i)(I)--
significant contribution to nonattainment (prong 1), and interfering
with maintenance of the NAAQS (prong 2), will be addressed in a
separate action.
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\1\ The proposed rule mistakenly stated that Kansas'
infrastructure SIP submission was received by the EPA on April 11,
2019.
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Although section 110(a)(2)(I) was addressed in the submission, \2\
the EPA is not taking action on section 110(a)(2)(I)--Nonattainment
Area Plan or Plan Revisions under Part D, as it is the EPA's
interpretation of the CAA that these elements do not need to be
addressed in the context of an infrastructure SIP submission.
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\2\ The proposed rule mistakenly stated that Kansas'
infrastructure SIP submission did not address section 110(a)(2)(I).
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A Technical Support Document (TSD) in the docket provides
additional details of this action, including an analysis of how the SIP
meets the applicable 110 requirements for infrastructure SIPs. Included
in the TSD is the EPA's analysis concerning Kansas' authority to
conduct modeling in accordance with the EPA's ``Revisions to the
Guideline on Air Quality Models: Enhancements to the AERMOD Dispersion
Modeling System and Incorporation of Approaches To Address Ozone and
Fine Particulate Matter'' (also referred to as the 2017 Guideline).\3\
82 FR 5182. While Kansas has not yet formally adopted the 2017
Guideline into its regulations, Kansas states that it has the authority
to integrate the requirements and recommendations of the 2017 Guideline
in its regulatory processes. As detailed in the TSD, the EPA finds that
Kansas' September 27, 2018 submission, supplemented by letter dated
February 6, 2020, satisfies the PSD-related requirements of CAA
sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3), and 110(a)(2)(J),
and modeling requirements related to CAA section 110(a)(2)(K).
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\3\ EPA's Guideline on Air Quality Models is codified at 40 CFR
part 51, appendix W and is generically referred to as Guideline
herein.
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III. Have the requirements for approval of a SIP revision been met?
The State met the public notice requirements for SIP submissions in
accordance with 40 CFR 51.102. The EPA determined that the submission
satisfied the completeness criteria of 40 CFR part 51, appendix V. The
State provided a public comment period for this SIP revision from
August 23, 2018 to September 24, 2018 and received no comments. In
addition, as explained in more detail in the TSD which is part of this
docket, the infrastructure SIP submission meets the substantive SIP
requirements of the CAA, including section 110 and implementing
regulations.
IV. What is the EPA's response to comments?
The public comment period on the EPA's proposed rule opened
September 11, 2020, the date of its publication in the Federal Register
and closed on October 13, 2020. During this period, the EPA received
three comments. One comment was not germane to the action and does not
require a response from the EPA. Another comment was supportive of the
EPA's proposed approval of Kansas' 2015 O3 Infrastructure
SIP. The third comment, which was supportive of the EPA's proposed
approval of Kansas' 2015 O3 Infrastructure SIP but also
identified misstatements in the EPA's proposed rule, was submitted by
the Kansas Department of Health and the Environment and is summarized
below.
Comment 1: The EPA incorrectly listed April 11, 2019 as the date of
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receipt of Kansas' 2015 O3 Infrastructure SIP submission in
the proposed rule.
Response 1: The EPA agrees that it made an error in the proposed
rule, and notes that Kansas submitted the 2015 O3
Infrastructure SIP to the EPA by letter dated September 27, 2018. In
addition, the TSD and the 40 CFR part 52 table in the proposed rule
correctly identified the September 27, 2018 submittal date. As such,
this final rule accurately identifies that the EPA is taking final
action on the 2015 O3 Infrastructure SIP submitted to the
EPA by Kansas on September 27, 2018.
Comment 2: The EPA mistakenly identified that particular elements
related to interstate pollution transport, specifically prongs 1 and 2
of section 110(a)(2)(D)(i)(I), were not addressed in the submission;
however, Kansas did include section 110(a)(2)(D)(i)(I) requirements in
the September 27, 2018 submission.
Response 2: The EPA notes that it made an error in the proposed
rule by stating that Kansas did not include prongs 1 and 2 of section
110(a)(2)(D)(i)(I) requirements in the September 27, 2018 submission.
As noted in the TSD, the EPA plans to address prongs 1 and 2 in a
separate rulemaking. The EPA has revised the 40 CFR part 52 table
accompanying this action in order to address Kansas' comment.
Comment 3: The EPA states that Kansas did not address section
110(a)(2)(I) requirements in the 2015 O3 Infrastructure SIP
submission; however, Kansas did include section 110(a)(2)(I)
requirements in the September 27, 2018 submission.
Response 3: The EPA notes that it made an error in the proposed
rule by stating that Kansas did not address section 110(a)(2)(I)
requirements in Kansas' 2015 O3 Infrastructure SIP
submission. However, as discussed in the proposed rule and the TSD, it
is the EPA's interpretation of the CAA that section 110(a)(2)(I) does
not need to be addressed in the context of an infrastructure SIP
submission. Section 110(a)(2)(I) requires states to meet the applicable
SIP requirements of part D of the CAA relating to designated
nonattainment areas. The specific part D submissions for designated
nonattainment areas are subject to different submission schedules than
those for section 110 infrastructure elements. The EPA acts on part D
attainment plan SIP submissions through a separate rulemaking governed
by the requirements for nonattainment areas, as described in part D. As
such, this final rule does not address the section 110(a)(2)(I)
requirements that were included in Kansas' 2015 O3
Infrastructure SIP submission.
V. What action is EPA taking?
The EPA is approving elements of the September 27, 2018,
infrastructure SIP submission from the State of Kansas, which addresses
the requirements of CAA sections 110(a)(1) and (2) as applicable to the
2015 O3 NAAQS. Specifically, the EPA is approving the
following infrastructure elements of section 110(a)(2): (A) through(C),
(D)(i)(II) prong 3 and prong 4, (D)(ii), (E) through (H), (J) through
(M). The EPA intends to act on the elements of section
110(a)(2)(D)(i)(I)- prong 1 and prong 2, in a subsequent rulemaking.
The EPA is not addressing section 110(a)(2)(I)- Nonattainment Area Plan
or Plan Revisions under part D, as it is the EPA's interpretation of
the CAA that these elements do not need to be addressed in the context
of an infrastructure SIP submission.
Based upon review of the State's infrastructure SIP submissions and
relevant statutory and regulatory authorities and provisions referenced
in those submissions or referenced in Kansas' SIP, the EPA finds that
Kansas' SIP meets all applicable required elements of sections 110(a)
(1) and (2) (except as otherwise noted) with respect to the 2015
O3 NAAQS.
VI. 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, the 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. For that reason, this action:
Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866.
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 (Public Law 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 the National Technology
Transfer and Advancement Act (NTTA) because this rulemaking does not
involve technical standards; 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, the SIP is not approved to apply on any Indian
reservation land or in any other area where the EPA or an Indian tribe
has demonstrated that a tribe has jurisdiction. In those areas of
Indian country, the rule does not have tribal implications and will not
impose substantial direct costs on tribal governments or preempt tribal
law as specified by Executive Order 13175 (65 FR 67249, November 9,
2000).
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).
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 March 16, 2021. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the
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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, Incorporation by
reference, Infrastructure, Intergovernmental relations, Ozone.
Dated: December 14, 2020.
James Gulliford,
Regional Administrator, Region 7.
For the reasons stated in the preamble, the EPA amends the 40 CFR
part 52 as set forth below:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart R--KANSAS
0
2. In Sec. 52.870, the table in paragraph (e) is amended by adding the
entry ``(45)'' in numerical order to read as follows:
Sec. 52.870 Identification of plan.
* * * * *
(e) * * *
EPA-Approved Kansas Nonregulatory Provisions
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Applicable
Name of nonregulatory SIP geographic or State EPA approval date Explanation
provision nonattainment area submittal date
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* * * * * * *
(45) Section 110(a)(2) Statewide.......... 9/27/18 1/15/21, [insert [EPA-R07-OAR-2020-0
Infrastructure Requirements for Federal Register 422; FRL-10013-71-
the 2015 O3 NAAQS. citation]. Region 7].
This action
addresses the
following CAA
elements:
110(a)(2)(A), (B),
(C), (D)(i)(II)--
prongs 3 and 4,
(D)(ii), (E), (F),
(G), (H), (J),
(K), (L), and (M).
EPA intends to act
on
110(a)(2)(D)(i)(I)-
-prongs 1 and 2,
in a separate
action.
110(a)(2)(I) is not
applicable.
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[FR Doc. 2020-28120 Filed 1-14-21; 8:45 am]
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