[Federal Register Volume 89, Number 152 (Wednesday, August 7, 2024)]
[Rules and Regulations]
[Pages 64373-64383]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-17182]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R07-OAR-2023-0582; FRL-11576-02-R7]


Air Plan Approval; Kansas; Regional Haze

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final action.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to disapprove a revision to Kansas's State Implementation Plan 
(SIP) submitted on July 28, 2021, intended to satisfy applicable 
requirements under the Clean Air Act (CAA) and EPA's Regional Haze Rule 
(RHR) for the program's second planning period. As required by the CAA, 
the RHR calls for State and Federal agencies to work together to 
improve visibility, including by reducing or eliminating regional haze, 
in 156 national parks and wilderness areas. The rule requires the 
States, in coordination with the EPA, the National Park Service (NPS), 
U.S. Fish and Wildlife Service (FWS), the U.S. Forest Service (FS), and 
other interested parties, to develop and implement air quality 
protection plans in which States revise their long-term strategies 
(LTS) for making reasonable progress towards the national goal of 
preventing any future, and remedying any existing, anthropogenic 
impairment of visibility in these mandatory Class I Federal Areas. 
Disapproval does not trigger imposition of mandatory sanctions. The 
effective date of this action does trigger an obligation for the EPA to 
issue a Federal Implementation Plan (FIP) within two years.

DATES: This final action is effective on September 6, 2024.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R07-OAR-2023-0582. All documents in the docket are 
listed on the https://www.regulations.gov website. Although listed in 
the index, some information may not be 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: Jed D. Wolkins Environmental 
Protection Agency, Region 7 Office, Air Quality Planning Branch, 11201 
Renner Boulevard, Lenexa, Kansas 66219; telephone number: (913) 551-
7588; email address: [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and 
``our'' refer to the EPA.

Table of Contents

I. What is being addressed in this document?
II. Background
III. The EPA's Response to Comments
    A. Conservation Groups Comments and Responses
    B. KDHE Comments and Responses
    C. Kansas Utilities' Comments and Responses
IV. What action is the EPA taking?
V. Statutory and Executive Order Reviews

I. What is being addressed in this document?

    The EPA is disapproving Kansas's regional haze plan for the second 
planning period. As required by section 169A of the CAA, the Federal 
RHR calls for State and Federal agencies to work together to improve 
visibility in 156 national parks and wilderness areas. The rule 
requires the States, in coordination with the EPA, the NPS, FWS, the 
FS, and other interested parties, to develop and implement air quality 
protection plans to reduce the pollution that causes visibility 
impairment in mandatory Class I Federal areas. Visibility impairing 
pollutants include fine and coarse particulate matter (PM) (e.g., 
sulfates, nitrates, organic carbon, elemental carbon, and soil dust) 
and their precursors (e.g., sulfur dioxide (SO2), oxides of 
nitrogen (NOX), and, in some cases, volatile organic 
compounds (VOC) and ammonia (NH3)). As discussed in further 
detail in our Notice of Proposed Rulemaking (NPRM) and in this 
document, the EPA finds that Kansas submitted a regional haze SIP 
revision that does not meet the regional haze requirements for the 
second planning period. The State's submission and the NPRM can be 
found in the docket for this action.

II. Background

    On July 28, 2021, Kansas submitted a revision to its SIP to address 
regional haze for the second implementation period. Kansas made this 
submission in order to satisfy the requirements of the CAA's regional 
haze program pursuant to CAA sections 169A and 169B and 40 Code of 
Federal Regulations (CFR) 51.308. The State's submission met the public 
notice requirements in accordance with 40 CFR 51.102. The submission 
also satisfied the completeness criteria of 40 CFR part 51, appendix V. 
The State provided public notice on its SIP revision from May 27, 2021, 
to June 28, 2021, and received comments from five parties, including 
the EPA. Kansas made some changes to its SIP revision based on some of 
the public comments. However, Kansas disagreed with most of the 
comments pointing out flaws in its SIP revision, and the State made no 
changes based on those comments.
    On January 2, 2024 (89 FR 178), the EPA published the NPRM 
proposing a

[[Page 64374]]

disapproval of Kansas's July 28, 2021 SIP submission for not satisfying 
the regional haze requirements for the second planning period contained 
in the CAA and 40 CFR 51.308. The EPA is now determining that the 
Kansas SIP revision for the second RHR planning period does not meet 
the applicable statutory and regulatory requirements in CAA section 
169A and 40 CFR 51.308 and is thus disapproving Kansas's submission.

III. The EPA's Response to Comments

    The purpose of the proposed rulemaking was to take public comment 
on the EPA's intent to disapprove Kansas's July 28, 2021 SIP submission 
because it does not satisfy regional haze requirements for the second 
planning period. In the NPRM, the EPA proposed to disapprove the 
submission for, inter alia, failing to consider the four statutorily 
required factors in CAA section 169A for developing the State's long-
term strategy (LTS).\1\ The public comment period on the EPA's proposed 
rule opened January 2, 2024, the date of its publication in the Federal 
Register, and closed on February 1, 2024. During this period, the EPA 
received three comment letters: (1) collective comments from the 
National Parks Conservation Association, Sierra Club, and the Coalition 
to Protect America's National Parks (collectively referred to as ``the 
Conservation Groups'' throughout this document); (2) comments from the 
Kansas Department of Health and Environment (KDHE); and (3) collective 
comments from the Kansas City Board of Public Utilities--Unified 
Government of Wyandotte County/Kansas City, Kansas (BPU), Evergy, Inc 
(Evergy), and Sunflower Electric Power Corporation (Sunflower) 
(collectively referred to as ``the Kansas Utilities'' throughout this 
document). All the public comments are available in the docket for this 
final action via Docket ID Number EPA-R07-OAR-2023-0582 on the https://www.regulations.gov website.
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    \1\ For more information on the RHR requirements, specifically 
the LTS requirements, see our NPRM in the docket for this action.
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    In the rest of this section, the EPA has summarized and provided 
responses to the adverse comments received on the NPRM. No response is 
necessary for the comments received in support of the NPRM or the 
comments that were not directly related to the NPRM. After carefully 
considering the comments received, the EPA is finalizing its 
disapproval of the Kansas SIP submission for the RHR second planning 
period.

A. Conservation Groups Comments and Responses

    Conservation Groups Comment 1: The Conservation Groups stated that 
executive orders, action plans, and commitments direct the Agency to 
consider environmental justice in Agency actions. The comment noted 
that the same pollutants that affect scenic views at national parks and 
wilderness areas also cause significant public health impacts.
    The Conservation Groups commented that the EPA ignores the 
environmental justice impacts of our action on Kansas's SIP revision. 
The commenters acknowledged that requiring Kansas to correct the 
deficiencies in the SIP revision may result in the State identifying 
new emission control measures to reduce pollution that negatively 
impacts low-income communities and communities of color. The commenters 
then provided information from the EPA's EJScreen tool to state that 
there are overburdened communities exposed to pollution near some large 
stationary sources, including Kansas City-BPU's Nearman Creek Power 
Station, the Jeffrey Energy Center, and the Lawrence Energy Center. The 
Conservation Groups stated that the EPA must analyze the potential 
disparate impacts or environmental justice benefits of its action on 
Kansas's SIP revision.
    Response to Conservation Groups Comment 1: The EPA disagrees with 
this comment but acknowledges the EJScreen information provided by the 
commenters. The CAA does not explicitly address considerations of 
environmental justice and neither do the regulatory requirements of the 
second planning period in 40 CFR 51.308(f), (g)(1) through (5), and 
(i). As explained in ``EPA Legal Tools to Advance Environmental 
Justice,'' \2\ the CAA provides States with the discretion to consider 
environmental justice in developing rules and measures related to 
regional haze. While a State may consider environmental justice under 
the reasonable progress factors, neither the statute nor the 
regulations require States to conduct an environmental justice analysis 
as a condition of the EPA approving a SIP revision. Furthermore, the 
CAA and the RHR neither prohibit nor require such an evaluation of 
environmental justice with regard to a regional haze SIP revision. The 
EPA is not identifying environmental justice as a basis for its 
decision to disapprove Kansas's SIP revision.
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    \2\ See EPA Legal Tools to Advance Environmental Justice. p. 35-
36 https://www.epa.gov/system/files/documents/2022-05/EJ%20Legal%20Tools%20May%202022%20FINAL.pdf. The EPA Office of 
General Counsel (May 2022).
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    The Conservation Group commenters provided additional information 
from multiple EJ Screen analyses. Without agreeing with the particular 
relevance or accuracy of this information, the EPA acknowledges the EJ 
Screen information provided as part of the comment, which identifies 
certain demographic and environmental information regarding communities 
near the Kansas City-BPU's Nearman Creek Power Station, the Jeffrey 
Energy Center, and the Lawrence Energy Center. As discussed in the NPRM 
and in this document, the EPA has evaluated Kansas's SIP submission 
against the statutory and regulatory regional haze requirements and 
determined that it has not satisfied those minimum requirements.

B. KDHE Comments and Responses

    KDHE Comment 1: KDHE commented that Kansas adopted the LTS the 
State previously set out in its regional haze SIP revision for the 
first implementation period (2011 SIP), including enforceable emission 
limitations, compliance standards, and other measures that are 
necessary to make reasonable progress toward reducing visibility 
impairment at nearby Class I areas. The commenter suggested Kansas 
provided substantial data in support of this decision.
    KDHE stated that per 40 CFR 51.308(f)(2), the 2021 SIP's LTS 
evaluated whether any emission reductions measures were ``necessary to 
make reasonable progress'' and determined no additional measures were 
necessary. KDHE stated that the CenSARA Area of Influence (AOI) results 
show that for the 20% most impaired days in base year 2016, no Kansas 
facility had an individual impact greater than 0.84% (nitrate and 
sulfate impacts combined) at any of the Class I areas studied. KDHE 
maintained that 0.84% is not a significant level of visibility impact. 
KDHE asserted that neither the EPA nor federal land manager (FLM) staff 
criticized the use of combined nitrates and sulfates, and Kansas was 
only notified of the EPA's preference to separate nitrates and sulfates 
in comments during the public comment period.
    Response to KDHE Comment 1: The EPA disagrees with the commenter's 
statements that KDHE conducted an analysis that considered the four 
statutory factors or that meets regulatory requirements of 40 CFR 
51.308(f) to determine what emission reduction measures are necessary 
to make reasonable progress in the second planning period. The EPA also 
disagrees

[[Page 64375]]

with the commenter's statement that KDHE's reliance on the CenSARA AOI 
results was appropriate, as this reliance resulted in KDHE producing an 
analysis that failed to consider the statutory and regulatory 
requirements. Finally, the EPA acknowledges the commenter's statement 
that the EPA did not provide feedback criticizing the use of combined 
nitrates and sulfates' impact on source selection criteria prior to 
Kansas's formal public comment period, but we do not agree that it has 
any bearing on the EPA's disapproval of the SIP revision.
    As explained in the NPRM, the State must evaluate and determine the 
emission reduction measures that are necessary to make reasonable 
progress by considering the four statutory factors.\3\ As part of its 
reasonable progress determinations for the second planning period, the 
State must describe the criteria used to determine which sources or 
group of sources were evaluated (i.e., subjected to four-factor 
analysis) for the second implementation period and how the four factors 
were taken into consideration in selecting the emission reduction 
measures for inclusion in the LTS. 40 CFR 51.308(f)(2)(i). Since Kansas 
did not select sources, or groups of sources, for a four-factor 
analysis, it did not meet this requirement in developing a LTS for the 
second planning period.
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    \3\ The amount of progress that is ``reasonable progress'' is 
based on applying the four statutory factors in CAA section 
169A(g)(1) in an evaluation of potential control options for sources 
of visibility impairing pollutants, which is referred to as a 
``four-factor'' analysis. The outcome of that analysis is the 
emission reduction measures that a particular source or group of 
sources needs to implement in order to make reasonable progress 
towards the national visibility goal. See 40 CFR 51.308(f)(2)(i).
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    The 1999 RHR established an iterative planning process that 
requires States that impact visibility at Class I areas to periodically 
submit SIP revisions to address such impairment. 64 FR 35714 (1999); 
CAA section 169A(b)(2). While the 1999 RHR outlined the regional haze 
requirements for the first planning period, the EPA revised the RHR in 
2017 to establish the regional haze requirements for the second 
planning period. 82 FR 3078 (2017). For example, the LTS requirements 
for the first planning period are laid out in 40 CFR 51.308(d)(3), and 
the LTS requirements for the second planning period are laid out in 40 
CFR 51.308(f)(2). This therefore necessitates separate analyses in line 
with the regulatory language dictating the requirements for the 
development of each planning period's LTS.\4\ In its SIP revision, 
Kansas included information on the emissions impacts of numerous 
sources on the Hercules Glades Wilderness Area, the Salt Creek 
Wilderness Area, the Upper Buffalo Wilderness Area, the Wheeler Peak 
Wilderness Area, the White Mountain Wilderness Area, and the Wichita 
Mountains National Wildlife Reserve, but did not select any sources for 
evaluation, did not conduct a four-factor analysis, and did not analyze 
possible efficiency improvements for sources' existing measures during 
this planning period. Thus, Kansas did not follow the regulatory 
requirements as outlined in 40 CFR 51.308(f). As stated in the NPRM, 
Kansas failed to consider the four statutory factors for any sources, 
thereby not providing the required analysis to support a conclusion 
that no additional measures are necessary for reasonable progress in 
its LTS for the second planning period.
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    \4\ CAA section 169A(b)(2)(B) requires States to include in 
their SIP submissions a long-term (10-15 year) strategy for making 
reasonable progress toward meeting the national goal of preventing 
future, and remedying existing, visibility impairment in Class I 
areas.
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    Kansas also argues that the SO2 reductions achieved by 
Kansas sources during the first planning period make Kansas's 
contribution to impairment of Class I areas insignificant in comparison 
to other States. The EPA acknowledges that Kansas made significant 
reductions in SO2 emissions in the first planning period and 
that surrounding States may have a larger total of SO2 
emissions, but neither the RHR nor the CAA allow a State to not 
evaluate sources or consider the four factors in reliance on its 
previous planning period reductions or due to higher emissions in other 
States.\5\
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    \5\ 64 FR 35721 (1999) ``EPA has concluded . . . that all States 
contain sources whose emissions are reasonably anticipated to 
contribute to regional haze in a Class I area and, therefore, must 
submit regional haze SIPs.''
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    KDHE's reliance on the CenSARA AOI results to determine reasonable 
progress is misplaced. CAA section 169A(g)(1) outlines that ``in 
determining reasonable progress, there shall be taken into 
consideration the costs of compliance, the time necessary for 
compliance, and the energy and non-air quality environmental impacts of 
compliance, and the remaining useful life of any existing source 
subject to such requirements.'' Moreover, the RHR outlines that in 
order to evaluate and determine the emission reduction measures that 
are necessary to make reasonable progress, States must consider ``the 
costs of compliance, the time necessary for compliance, the energy and 
non-air quality environmental impacts of compliance, and the remaining 
useful life of any potentially affected anthropogenic source of 
visibility impairment.'' 40 CFR 51.308(f)(2)(i). The individual impact 
of a State's sources on the Class I area and the significance of 
visibility impact should not undermine the role of the four-factor 
analysis when determining reasonable progress in accordance with the 
regulations.\6\ Therefore, the EPA cannot approve Kansas's SIP 
submission because it did not meet the statutory and regulatory 
requirements.
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    \6\ ``Under the RHR, each State has an obligation to submit a 
long-term strategy that addresses the regional haze visibility 
impairment resulting from emissions from within that State. 40 CFR 
51.308(f)(2). This obligation is not discharged simply because 
another State's contributions to visibility impairment may be 
greater.'' Clarifications Regarding Regional Haze State 
Implementation Plans for the Second Implementation Period, p. 3 
https://www.epa.gov/system/files/documents/2021-07/clarifications-regarding-regional-haze-state-implementation-plans-for-the-second-implementation-period.pdf. The EPA Office of Air Quality Planning 
and Standards, Research Triangle Park (July 8, 2021) (``2021 
Clarifications Memo'').
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    While the EPA cannot speak for the FLMs as to why they did not 
address the use of combined nitrates and sulfates, the EPA choose to 
not address this issue in its initial comments to Kansas on the 
proposed SIP revision during early engagement (i.e., prior to Kansas's 
formal SIP submittal). Rather the EPA choose to discuss the most 
glaring issue that would prevent approval, which was the failure to 
select sources for four-factor analysis or provide a reasoned 
explanation for why sources were not selected. When Kansas declined to 
amend its SIP revision following the EPA's comments, we were compelled 
to address the choice to combine nitrates and sulfates, specifically 
when Kansas claimed it did not need to select sources based upon other 
States' contributions to regional haze and the emission reductions 
achieved during the first planning period.\7\ While we could have made 
this comment in early engagement, we did make it during KDHE's public 
comment period prior to the SIP revision being submitted to the EPA.
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    \7\ Applying a combined sulfate and nitrate impact may exclude 
sources whose only or main impact may be from a sulfate or nitrate.
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    Kansas did not meet the statutory and regulatory requirements for 
the second planning period SIP revision, and therefore, the EPA cannot 
approve Kansas's SIP submission.
    KDHE Comment 2: KDHE commented that it utilized a threshold 
methodology for selection of sources that reasonably considers the 
actual visibility impact and expectations for reasonable progress 
consistent with the CAA. KDHE stated that the EPA has failed to provide 
any quantifiable threshold for visibility impacts on Class I areas. 
KDHE

[[Page 64376]]

proposed that < 1.0% visibility impact is not significant impairment of 
visibility and does not warrant four-factor evaluation. KDHE contended 
that a significance threshold of 1.0% is not unreasonable and is very 
conservative, considering the large universe of Title V sources being 
analyzed using the AOI modeling method.
    KDHE stated the language of CAA section 169A(b) requires a SIP to 
``contain such emission limits, schedules of compliance and other 
measures as may be necessary to make reasonable progress toward meeting 
the national goal'' and asserted that the trigger warranting evaluation 
of the four statutory factors is, by statute, whether it is first 
``necessary'' to meet the national goal. KDHE asserted that Kansas 
sources' de minimis impact to visibility and trending reduction of 
visibility impairment makes conducting four-factor analyses unnecessary 
to ensure reasonable progress. KDHE stated that the EPA's insistence 
that every State carry out four-factor analysis despite having 
insignificant sources with respect to visibility impact is not 
justified. KDHE concluded that the threshold the EPA currently uses 
exceeds the statutory requirement, is inconsistent with legislative 
intent, and is arbitrary.
    Response to KDHE Comment 2: The EPA disagrees with this comment. In 
order to meet the statutory and regulatory requirements, as stated in 
the EPA's 2021 Clarifications Memo and discussed in the NPRM, States 
have discretion to choose any source selection threshold or methodology 
that is reasonable; however, whatever choices States make should be 
reasonably explained and produce a reasonable set of sources, or groups 
of sources, on which to apply the four statutory factors when 
evaluating potential control measures for inclusion in the LTS. 2021 
Clarifications Memo at 3. Reasonableness will depend on the specific 
circumstances. Kansas's chosen threshold of 1.0% is unreasonable for a 
number of reasons.
    First, Kansas's chosen source selection methodology analyzed 
visibility impacts from Kansas and compared those to visibility impacts 
to other States that impact the same Class I areas. In so doing, Kansas 
concluded that its in-state contribution to visibility impairment at 
the affected Class I area is insignificant and therefore, it was 
unnecessary to undertake an evaluation of control measures by applying 
the four statutory factors. This was improper. Under the RHR, each 
State has an obligation to submit a LTS that addresses the regional 
haze visibility impairment resulting from emissions from within that 
State, and that obligation ``is not discharged simply because another 
State's contributions to visibility impairment may be greater.'' Id. 
There is no exclusion in the CAA or RHR to support the contention that 
if a State can show emissions are ``insignificant'' or ``de minimis'', 
then it does not have to comply with 40 CFR 51.308(f). Therefore, just 
because emissions from Kansas may not impact Class I areas as much as 
emissions from other States, Kansas still nonetheless has an obligation 
to evaluate a reasonable set of sources for additional controls, which 
it did not do.
    KDHE provided information including graphs and tables showing the 
improving visibility impairment at Class I areas impacted by Kansas 
emissions, year over year of decreasing emissions, and Kansas's low 
impact compared to other nearby States. While we agree that these are 
true, as stated throughout this document, these facts do not relieve 
Kansas from the requirement to have a LTS by considering the four 
statutory factors.
    Secondly, Kansas's chosen threshold of 1.0% is unreasonable because 
it excluded all of the State's largest visibility impairing sources 
from selection. Generally, a threshold that captures only a small 
portion of a State's contribution to visibility impairment in Class I 
areas is more likely to be unreasonable. Id. A State that relies on a 
visibility (or proxy for visibility impact) threshold to select sources 
for four-factor analysis should set the threshold at a level that 
captures a meaningful portion of the State's total in-state 
contribution to visibility impairment to Class I areas.\8\ Not only did 
Kansas not evaluate its largest sources for visibility impairment, it 
also opted not to evaluate groups of its smaller sources, which, 
especially as it relates to Kansas, was unreasonable.
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    \8\ Guidance on Regional Haze State Implementation Plans for the 
Second Implementation Period. p. 19 https://www.epa.gov/visibility/guidance-regional-haze-state-implementation-plans-second-implementation-period. The EPA Office of Air Quality Planning and 
Standards, Research Triangle Park (August 20, 2019) (``2019 
Guidance'').
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    CAA section 169A(b)(2)(B), requires each State having emissions 
that may affect visibility in a Class I area to include in its SIP 
emission limits, schedules of compliance, and other measures as may be 
necessary to make reasonable progress toward meeting the national goal. 
CAA section 169A(b)(2)(B). The national goal, as laid out in section 
169A(a)(1) of the CAA is to prevent future, and to remedy existing 
manmade impairment of visibility in Class I areas.
    In the 1999 RHR, the EPA stated that the ``prevention component of 
the national goal requires that States have the framework in place to 
address future growth in emissions. . . . For this reason, the EPA does 
not believe that it is appropriate to establish criteria for excluding 
States or geographic areas from consideration as potential contributors 
to regional haze.'' 64 FR 35721 (1999). Then, in the 2017 RHR, the EPA 
``reiterat[ed] that the CAA requires States to consider the four 
statutory factors . . . in each implementation period to determine the 
rate of progress towards natural visibility conditions that is 
reasonable for each Class I area.'' 82 FR 3080 (2017).
    The 2017 RHR also recognized that, due to the nature of regional 
haze (visibility impairment that is caused by the emissions of air 
pollutants from numerous anthropogenic sources located over a wide 
geographic area), numerous and sometimes (relatively) smaller in-state 
sources may need to be selected and evaluated for control measures as 
part of the reasonable progress analysis. As stated in response to 
comments on the 2017 RHR, ``[a] state should not fail to address its 
many relatively low-impact sources merely because it only has such 
sources and another state has even more low-impact sources and/or some 
high impact sources.'' \9\ However, despite acknowledging that 
emissions from Kansas impacted numerous Class I areas, Kansas did not 
select any sources, large or small, to evaluate for emission reduction 
measures.
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    \9\ Responses to Comments on Protection of Visibility: 
Amendments to Requirements for States Plans; Proposed Rule (81 FR 
26942, May 4, 2016) at 87-88, available at https://www.regulations.gov/document/EPA-HQ-OAR-2015-0531-0635; See 2021 
Clarifications Memo p. 4.
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    Once a State has selected sources, or groups of sources, for 
evaluation, it then must consider the four statutory factors to 
evaluate the emission reduction measures that are necessary to make 
reasonable progress. CAA section 169A(g)(1); 40 CFR 51.308(f)(2). 
Control measures that are necessary to make reasonable progress toward 
the national goal of natural visibility conditions must be included in 
the State's LTS in the SIP. CAA section 169A(b)(2)(B); 40 CFR 
51.308(f)(2). Kansas did not select any sources to evaluate and did not 
apply the four statutory factors in order to determine what is 
necessary for reasonable progress, thus resulting in an unjustified LTS 
for the second planning period. The EPA therefore finds

[[Page 64377]]

Kansas's selected threshold to be unreasonable and not in in accordance 
with the CAA or the RHR. We therefore find the chosen source selection 
threshold and the resulting lack of analysis of controls and 
application of the four statutory factors to be unreasonable.
    In addition, Kansas's interpretation of the phrase ``as may be 
necessary to make reasonable progress toward meeting the national 
goal'' is incorrect. Kansas's statutory construction comment is 
inconsistent with the EPA's interpretation and explanation laid out in 
the 2017 RHR preamble. To achieve the national goal, it is 
``necessary'' for all States to reduce or eliminate visibility-
impairing emissions, which includes contributions from sources in 
Kansas. While the EPA has created an iterative planning process to 
achieve Congress' ambitious goal, that process will take many years. 
Thus, in the second planning period, it nonetheless remains 
``necessary'' for States to consider the four statutory factors and 
evaluate potential control measures to ensure that they are making 
reasonable progress toward that goal.
    Kansas's conclusion that a four-factor analysis should only be 
conducted if visibility impacts are significant (i.e., not de minimis) 
is incorrect. The EPA acknowledges that for many States, including 
Kansas, there has been a reduction of visibility impairment since the 
first planning period. While the impact from the highest-emitting 
sources may be less than the first planning period, sources from 
Kansas, large or small, still emit visibility impairing pollutants and 
Kansas thus must comply with the RHR. While Kansas is correct that the 
EPA has not mandated a specific threshold, the EPA has provided States 
with guidance and flexibility on how to define a threshold in order to 
select a reasonable set of sources for analysis of control measures, as 
set out above.
    The EPA also disagrees with KDHE's contention that it is not 
necessary for every State to take into consideration the four statutory 
factors when determining the control measures that are a part of their 
LTS for the second planning period. CAA section 169A(b)(2) requires 
each State whose emissions may reasonably contribute to visibility 
impairment to include in its regional haze SIP the measures that are 
necessary to make reasonable progress toward meeting the national goal 
of preventing future, and eliminating existing, visibility impairment 
in Class I areas. Within these SIPs, CAA section 169A(b)(2)(B) also 
requires long-term (10-15 year) strategies for making reasonable 
progress. CAA 169A(g)(1) outlines that in determining reasonable 
progress, the four factors must be considered, which is also outlined 
in the RHR. As outlined in the 1999 RHR, the EPA concluded that ``all 
States contain sources whose emissions are reasonably anticipated to 
contribute to regional haze in a Class I area and, therefore, must 
submit regional haze SIPs.'' 64 FR 35721 (1999). This determination did 
not change with the 2017 RHR.\10\ Because the time period for Kansas to 
take issue with the second planning period regulations has passed, it 
is thus outside of the scope of this action.
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    \10\ In the 2017 RHR, the EPA ``reiterat[ed] that the CAA 
requires States to consider the four statutory factors . . . in each 
implementation period to determine the rate of progress towards 
natural visibility conditions that is reasonable for each Class I 
area.'' 82 FR 3080.
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    Therefore, in the second planning period, just as with the first 
planning period, all States are required to submit SIPs to address 
regional haze and those SIPs must include a LTS for making reasonable 
progress, which considers the four statutory factors.\11\
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    \11\ See 64 FR 35721-35722 for additional explanation as to the 
EPA's determination that emissions from all States reasonably 
contribute to visibility impairment and thus are subject to the 
regional haze regulations.
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    In applying the requirements of the regional haze program, the 
EPA's disapproval is consistent with, and within, the bounds of the CAA 
and its legislative intent.
    KDHE Comment 3: KDHE asserted that Kansas's 2021 SIP declined to 
select sources for four-factor analyses only after Kansas determined 
that the effect of existing measures employed during the first 
implementation period made conducting such analyses unnecessary to 
ensure reasonable progress with the national goal. To that point, KDHE 
further stated that it provided additional analyses of certain sources 
in its reply to the EPA comments. KDHE directed the EPA to review the 
2021 SIP submission again and notice that each factor required by 
regulation to be discussed for an LTS was identified and commented on 
in the submission. The commenter suggested the SIP submission followed 
the 2019 Guidance by robustly discussing and considering the four 
statutory factors and concluding that further action was unnecessary to 
make reasonable progress.
    Response to KDHE Comment 3: The EPA disagrees that Kansas's SIP 
submission included a robust demonstration, based on the four statutory 
factors, that no additional controls are necessary in the second 
planning period. As stated in the RHR, the NPRM, and throughout this 
document, application of the four factors is required by the CAA for a 
second planning period SIP's LTS. Neither the CAA nor the RHR establish 
a visibility impact threshold in order for a State to conduct the 
analysis. As noted in the 2019 Regional Haze Guidance, it is reasonable 
for States to consider visibility alongside the four statutory factors 
when determining the emission reduction measures that are necessary to 
make reasonable progress. 2019 Guidance at 28. However, considering 
visibility as an additional factor must be done ``in a reasonable way 
that does not undermine or nullify the role of the four statutory 
factors in determining what controls are necessary to make reasonable 
progress.'' \12\
---------------------------------------------------------------------------

    \12\ 2021 Clarifications Memo at 13 (quoting Response to 
Comments on Protection of Visibility: Amendments to Requirements for 
State Plans; Proposed Rule at 186).
---------------------------------------------------------------------------

    As discussed above in Responses to KDHE Comments 1 and 2, the 
support proffered for Kansas' decision to decline to select sources 
included Kansas's mistaken belief that the surrounding States should 
match the level of control at Kansas sources before Kansas evaluates 
sources for further controls and that, in Kansas's interpretation of 
CAA section 169A(b)(1), the impacts from individual Kansas sources are 
so insignificant so as to not require controls. As stated above, the 
EPA does not find these assertions to be aligned with the statute or 
RHR, and thus we find that Kansas has not reasonably explained its 
decision to not select sources for analysis.
    If KDHE wanted to rely upon its first planning period analysis and 
approach, the 2019 Guidance and 2021 Clarifications Memo explain that 
the State must support its conclusion with a sound analysis that no new 
significant information is available that changes the first planning 
period approach. 2019 Guidance at 36; 2021 Clarifications Memo at 5. 
Kansas's submission did not include an analysis of its first planning 
period source selection and four factor considerations. Instead, Kansas 
points to the SO2 reductions achieved during the first 
planning period compared to other States. The EPA finds that this is 
not a reasonable analysis of Kansas's first planning period approach. 
The EPA acknowledged in its 2021 Clarifications Memo that many of the 
largest individual visibility impairing sources have either been 
controlled or retired and that visibility improvement has occurred in 
most Class I areas. 2021 Clarifications Memo at 14. Nonetheless,

[[Page 64378]]

the EPA emphasized that additional progress is needed to achieve the 
national goal set by Congress,\13\ such as evaluating control measures 
for relatively smaller sources. 2021 Clarifications Memo at 14.
---------------------------------------------------------------------------

    \13\ See CAA section 169A(a)(1).
---------------------------------------------------------------------------

    KDHE cites to the 2019 Guidance and the 2021 Clarifications Memo 
for how a State can reasonably explain its decision to not select 
sources. However, without conducting the proper analyses required by 
the rule, KDHE cannot determine that additional controls or 
optimization of current controls to reduce emissions and improve 
visibility would not be cost-effective or necessary for reasonable 
progress.
    On June 28, 2021, the EPA submitted comments on the Kansas regional 
haze plan revision during the public comment period. After the State's 
public comment period closed, in the SIP's Responsiveness Summary, 
Kansas addressed the EPA's comment by providing ``narrative analyses 
for the two most impactful facilities based on nitrates-only and 
sulfates-only AOI results'' in order to satisfy the requirement of 40 
CFR 51.308(f)(2)(i). The narrative analyses discussed NOX 
controls at Evergy--La Cygne and SO2 controls at Sunflower 
Electric--Holcomb.
    The EPA notes that Kansas did generally undertake an evaluation of 
emission reduction measures necessary to make reasonable progress for 
Evergy--La Cygne and Sunflower Electric--Holcomb. However, the EPA 
disagrees with Kansas's assertion in the Responsive Summary and its 
comment on the NPRM that the narrative analyses satisfy the requirement 
to consider the four statutory factors for two reasons, one substantive 
and the other procedural.
    Substantively, Kansas's four-factor analysis for Evergy--La Cygne 
and Sunflower Electric--Holcomb is not sufficient. The EPA notes that 
the 2019 Guidance provides the opportunity for a State to forgo a full 
four-factor analysis for a particular source if it is already 
``effectively controlled,'' as long as the State explains why it is 
reasonable to assume that a four-factor analysis would likely result in 
the conclusion that no further controls are reasonable. 2019 Guidance 
at 22. Further, the EPA's 2021 Clarifications Memo guides that if a 
source can achieve, or is achieving, a lower emission rate using its 
existing measures than the rate assumed for the ``effective control,'' 
a State should further analyze the lower emission rate(s) as a 
potential control option. 2021 Clarifications Memo at 5. In its 
analysis, Kansas discusses the current control equipment, control 
efficiencies and current enforceable emission limitations for Evergy--
La Cygne NOX and Sunflower Electric--Holcomb SO2. 
Kansas states that the recent actual emissions are below the current 
enforceable emission limits and did not analyze the actual emission 
rates as potential control options for the sources. While Kansas's 
analysis is informative, it is insufficient because the information 
provided was very cursory and did not evaluate a full range of control 
options.
    Procedurally, the four-factor analysis of NOX controls 
at Evergy--La Cygne and SO2 controls at Sunflower Electric--
Holcomb was not part of Kansas's regional haze plan revision that went 
out for public comment from May 27, 2021, to June 22, 2021. 40 CFR 
51.102(a) requires States to provide the opportunity to submit written 
comments on SIP submittals. 40 CFR 51.102(a). 40 CFR 51.104(c) states 
``EPA will approve revisions only after applicable hearing requirements 
of Sec.  51.102 have been satisfied.'' 40 CFR 51.104(c). The public did 
not have an opportunity to submit written comments on the narrative 
four-factor analysis provided by Kansas in the Responsive Summary, thus 
resulting in a procedural defect.
    A State that has emissions that may affect visibility in a Class I 
area must develop a LTS that includes the enforceable emission 
limitations, compliance schedules, and other measures that are 
necessary to make reasonable progress in such Class I areas. 40 CFR 
51.308(f)(2). The State must evaluate and determine the emission 
reduction measures that are necessary to make reasonable progress by 
considering the four factors of CAA section 169A(g)(1). The outcome of 
that analysis is used to determine the emission reduction measures that 
a particular source or group of sources needs to implement in order to 
make reasonable progress towards the national visibility goal. The 
State must include in its implementation plan a description of the 
criteria it used to determine which sources or groups of sources it 
evaluated and how the four factors were taken into consideration in 
selecting the measures for inclusion in its LTS. In addition, emission 
reduction measures that are necessary to make reasonable progress may 
be either new, additional control measures for a source, or they may be 
the existing emission reduction measures that a source is already 
implementing, and those measures must be included in the SIP. 2019 
Guidance at 45; 2021 Clarifications Memo at 8-10.
    As stated in the NPRM, Kansas's submission identifies one hundred 
and twenty-eight (128) sources in Kansas that impact Class I areas. If 
Kansas had followed the RHR and properly analyzed a set of these 
sources, it could potentially have identified additional cost-effective 
control measures to achieve SO2 or NOX emission 
reductions that would help make progress toward visibility goals in 
affected Class I areas. Instead, Kansas selected no sources for which 
to take into consideration the four factors. Consequently, Kansas did 
not, nor could not, describe the criteria it used to determine which 
sources or groups of sources it evaluated and how the four factors were 
applied in selecting the measures included in the LTS for the second 
planning period.
    KDHE Comment 4: KDHE commented that it demonstrated that 
substantive revision of the existing implementation plan is unnecessary 
to achieve established goals. KDHE stated that per 40 CFR 51.308(f)(5), 
revisions of a SIP also serve as ``a progress report'' and that at the 
same time the State is ``required to submit any progress report,'' the 
State is directed to determine the adequacy of the existing 
implementation plan. KDHE contended that the regulation clearly and 
unambiguously establishes that a State may determine that no 
substantive revision to the existing SIP is necessary, and that the 
2021 SIP submission reasonably determined that such is the case. KDHE 
requested the EPA approve the SIP revision.
    Response to KDHE Comment 4: The EPA disagrees with KDHE's 
interpretation of 40 CFR 51.308(f)(5). 40 CFR 51.308(a) ``establishes 
requirements for implementation plans, plan revisions, and periodic 
progress reviews to address regional haze.'' 40 CFR 51.308(f) sets 
forth the requirements for the periodic State implementation plan 
revisions, which are to be submitted by July 31, 2021, July 31, 2028, 
and every 10 years thereafter. 40 CFR 51.308(f). These SIP revisions 
are referred to as the second planning period, third planning period, 
etc. 40 CFR 51.308(g) details the requirements for periodic reports 
describing progress towards reasonable progress goals, which are to be 
submitted by January 31, 2025, July 31, 2033, and every 10 years 
thereafter. 40 CFR 51.308(g).
    The determination of adequacy for the existing implementation plan 
found under 40 CFR 51.308(h) is not applicable to the second planning 
period SIP revisions under 40 CFR 51.308(f)(2), as KDHE mistakenly 
asserts. Rather, the requirements for

[[Page 64379]]

States to submit a declaration of adequacy under 40 CFR 51.308(h) is 
triggered when a State is required to submit a progress report pursuant 
to the deadline requirements of 40 CFR 51.308(g). Under 40 CFR 
51.308(g), States are required to submit a progress report containing a 
declaration of adequacy under 40 CFR 51.308(h) to the EPA by January 
31, 2025, July 31, 2033, and every 10 years thereafter. The ``progress 
report'' submitted under Kansas' second planning period SIP revision 
under 40 CFR 51.308(f)(2) was due to the EPA on July 21, 2021, and does 
not serve as a progress report as required under 40 CFR 51.308(g). The 
language under 40 CFR 51.308(h) is clear in that the determination of 
adequacy is only applicable ``at the same time the State is required to 
submit any progress report to the EPA in accordance with [40 CFR 
51.308](g).''
    The EPA reiterates that KDHE did not submit a progress report in 
accordance with 40 CFR 51.308(g) when it submitted its second planning 
period SIP revision due July 21, 2021. Rather, the progress report 
provided in the second planning period SIP revision was to fulfill its 
40 CFR 51.308(f)(5) requirements. The regulatory language under 40 CFR 
51.308(f)(5) directs States only to consider the general progress 
report requirements under 40 CFR 51.308(g)(1) through 40 CFR 
51.308(g)(5), and not the additional progress report requirements (such 
as 40 CFR 51.308(g)(6) or 40 CFR 51.308(g)(8)) that are contained under 
the entirety of 40 CFR 51.308(g). Furthermore, the established 
deadlines and timeframes under 40 CFR 51.308(g) ensure that a plan 
revision under 40 CFR 51.308(f) and a progress report under 40 CFR 
51.308(g) will never overlap.
    Thus, for the reasons described in this response, KDHE is mistaken 
that it can use a declaration of adequacy under 40 CFR 51.308(h) in 
order to avoid considering the four statutory factors to fulfill its 
LTS requirements for the second planning period under 40 CFR 
51.308(f)(2). KDHE has not submitted a progress report under 40 CFR 
51.308(g) to fulfill its requirements for the next regulatory due date 
for progress reports.\14\ Rather, KDHE has submitted a progress report 
to meet its SIP revision obligations under 40 CFR 51.308(f)(2), which 
contains an obligation to meet the requirements of 40 CFR 51.308(f)(5). 
There is no regulatory option for KDHE to make a declaration of the 
existing plan when submitting a revision to meet the requirements of 40 
CFR 51.308(f)(2). Thus, Kansas cannot utilize 40 CFR 51.308(h)(1) to 
assert that Kansas does not need to revise its regional haze plan for 
the second planning period under 40 CFR 51.308(f)(2).
---------------------------------------------------------------------------

    \14\ The next regulatory deadline for the regional haze second 
planning period progress reports under 40 CFR 51.308(g) is January 
31, 2025.
---------------------------------------------------------------------------

    KDHE Comment 5: KDHE commented that Kansas used a reasonable 
threshold for source selection consistent with the CAA. KDHE asserted 
that the EPA arbitrarily concludes that any impairment of visibility 
greater than zero requires completely utilizing the four-factor 
analysis, and this conclusion unnecessarily saddles States with the 
overly burdensome endeavor of engaging in four factor analysis for 
sources whose impact to visibility is insignificant. KDHE argued that 
the EPA disregards the cost and futility associated with revision of 
the SIP and ``proposes to disapprove the 2021 SIP for no other reason 
beyond requiring Kansas to complete arbitrary formalities established 
by regulations that are inconsistent with the [CAA] and exceed the 
authority granted to EPA.''
    Response to KDHE Comment 5: The EPA disagrees with KDHE's statement 
that Kansas used a threshold for source selection consistent with the 
requirements of the CAA and that the EPA's conclusions are arbitrary. 
As discussed in the Responses to KDHE's Comment 1 and 2, Kansas's 
chosen threshold which resulted in no sources being selected for a 
four-factor analysis is not reasonable because it excluded all of the 
State's largest visibility impairing sources and every State is 
required to include the LTS in the SIP revision.
    The EPA disagrees that it is arbitrary for the Agency to require 
second planning period regional haze SIP submissions to develop a LTS 
that will make reasonable progress towards the national goal specified 
in CAA section 169A(a)(1), through consideration of the four factors 
specifically outlined in the CAA section 169A(g)(1). Kansas decided to 
not select any sources and, as stated in the NPRM, the EPA does not 
find its decision to be reasonable. Kansas's own submission lists one 
hundred twenty-eight (128) sources in Kansas with some, albeit low, 
visibility impacts on at least one Class I area. When SO2 
and NOX emissions were considered together by Kansas, 
impacts from individual Kansas sources ranged from 0.01% to 0.84% of 
the total estimated visibility impact. As stated in the NPRM, Kansas 
did not provide any statutory or regulatory based explanation as to why 
it was reasonable not to select and analyze potential control options 
for any of these sources. Therefore, as submitted, the SIP revision did 
not include the statutorily and regulatorily required consideration of 
the four statutory factors and a LTS for the second planning period.
    The 2017 RHR Revision directed all States that impact Class I areas 
to evaluate major and minor emission sources and consider the four 
factors in the second planning period SIP revision. It is already 
established that Kansas emissions impact Class I areas. As mentioned 
previously, the EPA acknowledges that there has been visibility 
improvement and source retirements since the first planning period. 
However, the fact remains that there is no exclusion in the CAA or RHR 
to support the contention that if a State can show emissions are 
``insignificant'' or ``de minimis'', then it does not have to comply 
with 40 CFR 51.308(f). The EPA has long established that achieving the 
Congressional goal of natural visibility will take reductions from 
multiple sources, across all States, over multiple planning periods.
    The EPA also disagrees that source selection and a four-factor 
analysis is a costly and futile formality of the RHR. The 2019 Guidance 
and 2021 Clarifications Memo provide States with latitude by which to 
formulate the LTS, so long as the result is reasonably supported. 2019 
Guidance at 9; 2021 Clarifications Memo at 3. As stated in the NPRM, 
Kansas has not conducted a reasonably supported analysis to in 
developing its LTS for the second planning period. Had Kansas selected 
sources to analyze for a four-factor analysis or properly explained its 
decision not to, it is possible that there would be no new cost-
effective controls. If that were the case, then Kansas's existing 
controls would be necessary for reasonable progress and would need to 
be in the State's LTS. However, Kansas did not demonstrate that with a 
proper analysis. 2021 Clarifications Memo at 10.
    Additionally, as discussed in Response to KDHE Comment 3, the EPA 
also does not find KDHE's narrative analyses for Evergy--La Cygne for 
NOX and Sunflower Energy for SO2 in its 
Responsive Summary to properly analyze that these sources are 
effectively controlled. Therefore, the EPA proposed to disapprove the 
SIP revision and declines KDHE's request to approve it.

C. Kansas Utilities' Comments and Responses

    Kansas Utilities' Comment 1: BPU stated that they submitted 
comments to KDHE on June 28, 2021, during the State's public review and 
comment period. BPU's comments to the State included modeling results 
performed by Trinity Consultants, which BPU

[[Page 64380]]

contended confirm KDHE's conclusion that Kansas's existing plan 
required no further revision to show reasonable progress toward 
achieving its LTS for reducing regional haze in affected Class I areas. 
BPU stated that Kansas has seen significant declines in visibility-
impairing emissions due to substantial efforts taken by BPU and other 
Kansas utilities. BPU also provided a copy of BPU's comments as 
submitted to KDHE during its comment period on the proposed plan 
revision for the second planning period, dated June 28, 2021 and 
reiterated to the EPA the modeling results performed by Trinity 
consultants for BPU's Nearman Creek Power Station. These comments 
include a narrative discussion of costs and remaining useful life of 
the Nearman Creek Power Station regarding SO2 emissions. BPU 
stated the dry scrubbers installed in 2017 achieve very high levels of 
SO2 control. BPU states these levels are very near what a 
wet scrubber could do. BPU discussed how the dry scrubbers get better 
control of acids and are used for Mercury control to meet the Mercury 
and Air Toxics Standard. BPU concluded that additional controls, 
specifically new wet controls would be unreasonable.
    Response to Kansas Utilities' Comment 1: Generally, the EPA does 
not disagree with BPU's comment; however, the information provided by 
BPU in its public comment on the NPRM is a summary of Trinity 
Consultants' modeling results and a narrative discussion of costs and 
remaining useful life for Nearman Creek Power Station. The actual 
modeling was not provided to the EPA, the FLMs, or the public, and KDHE 
did not revise the SIP revision so it could properly rely on the 
information. We disagree with BPU's argument that the SIP submission is 
approvable.
    As previously stated, in order to demonstrate that no additional 
controls were necessary for reasonable progress at sources in Kansas, 
KDHE was required by the CAA and the RHR to evaluate sources or groups 
of sources and determine the emission reduction measures that are 
necessary to make reasonable progress by considering the four statutory 
factors. Specifically, the Kansas SIP revision for the second planning 
period did not provide a substantive analysis related to the 
effectiveness of controls, nor did Kansas clarify that it determined 
that the existing controls were necessary for reasonable progress and 
thus a part of its LTS for the second planning period.\15\ It is 
significant that Kansas jumped to the conclusion that no controls were 
required for the second planning period without conducting a proper 
cost effectiveness analysis for those existing measures.
---------------------------------------------------------------------------

    \15\ See Response to KDHE Comment 3.
---------------------------------------------------------------------------

    Further, the comment presented summaries from Trinity's modeling 
analysis and provided a copy of BPU's comment letter submitted to KDHE 
during the State's public review and comment period. Neither Kansas nor 
BPU provided the modeling files or documentation of Trinity's modeling 
analysis during the EPA's comment period. The 2019 Guidance provides a 
mechanism for a State to decline to select a source ``if the source 
owner has recently made a significant expenditure that resulted in 
significant reductions of visibility impairing pollutants at an 
emissions unit, it may be reasonable for the State to assume that 
additional controls on the unit are unlikely to be reasonable for the 
upcoming implementation period.'' 2019 Guidance at 22-23. The Guidance 
directs the State to ``explain why the decision is consistent with the 
requirement to make reasonable progress, i.e., why it is reasonable to 
assume for the purposes of efficiency and prioritization that a full 
four-factor analysis would likely result in the conclusion that no 
further controls are necessary.'' Id. at 23. BPU and Kansas did no such 
analysis to justify the decision to not select sources, and thus cannot 
be considered by the EPA.
    As to BPU's discussion of costs and remaining useful life of 
Nearman Creek Power Station and its controls regarding SO2 
emissions, we acknowledge that a full cost analysis may confirm BPU's 
assertion. In other words, at sources like Nearman Creek Power Station, 
with highly effective air pollution controls, it may be cost 
prohibitive to replace or improve the efficiency of the controls. In 
recognition of these potential scenarios, the EPA included the option 
for States to not select effectively controlled sources in order to 
focus on other sources which may impact Class I areas in the 2019 
Guidance. Id. at 22. The EPA guidance, though, is based upon the 
recognition that the highly effective control emission rates must be 
made Federally enforceable within the SIP. No emission control measures 
were submitted to the EPA for incorporation into the Kansas SIP.
    The EPA understands that if KDHE was to select Nearman Creek Power 
Station and conduct a four-factor analysis, with full documentation and 
cost numbers, the result for SO2 may be that the existing 
controls are all that is needed for reasonable progress and thus should 
be a part of its LTS for the second planning period. However, without 
the proper analysis in Kansas's formal SIP revision, and without 
inclusion of any existing control measures for incorporation into the 
SIP, we cannot consider BPU's comment alone as Kansas's application of 
the four factors for SO2 controls, or as an explanation as 
to why the Nearman Creek Power Station should not be selected for four-
factor analysis for SO2 controls. We are also not opining on 
what a four-factor analysis would show in regard to NOX 
emissions and controls, only that if Kansas selects Nearman Creek Power 
Station, we expect NOX to also be considered.
    Furthermore, BPU's comment was not provided to the FLMs during the 
consultation process or included in the State's plan revision for 
public notice and comment. Therefore, the analysis does not satisfy the 
substantive or procedural requirements of the statute or 
regulations.\16\ The EPA acknowledges that the information from BPU is 
informative, but from a technical perspective, the EPA cannot consider 
this as Kansas satisfying the requirement to evaluate major or minor 
emissions sources and consider the four statutory factors because KDHE 
did not modify its SIP revision to the EPA as a result of BPU's June 
28, 2021, comment to include an analysis of the controls at Nearman 
Station.
---------------------------------------------------------------------------

    \16\ See Response to KDHE Comment 3.
---------------------------------------------------------------------------

    Kansas Utilities' Comment 2: Evergy commented that the EPA's 
proposed disapproval is discouraging because Kansas sources have 
reduced contributions of NOX and SO2 to Class I 
areas. Such large emission reductions have been achieved through 
investments making the energy grid smarter, cleaner, more dynamic, more 
flexible, and more secure while providing affordable and reliable 
service to customers. Evergy stated that emissions of NOX 
and SO2 from Kansas electric generating units are down 85 
and 97 percent, respectively, over the period from 2005 to 2022, and 
Evergy provided the specific reductions attributable to its emission 
sources during the first planning period. Evergy asserted that the 
``above and beyond'' first planning period reductions made by Evergy 
would be utilized in the second planning period. Evergy commented that 
no neighboring State or FLM requested additional reductions from any 
Kansas emission sources, including Evergy sources, during the second 
planning period consultation process. Evergy further argued that 
instead of recognizing this, the EPA insists on continually burdening 
Kansas emissions sources by requiring analyses

[[Page 64381]]

that will result in no meaningful reduction in visibility impairing 
pollutants.
    Response to Kansas Utilities' Comment 2: As previously discussed in 
response to KDHE's comments, the EPA disagrees that previous emissions 
reductions achieved in prior planning periods relieves Kansas from its 
obligations to submit a second planning period SIP revision that meets 
the requirements of the CAA and RHR.\17\ The EPA is guided by, and 
implements, the regional haze program as established in the CAA and the 
regulations, which do not provide a measurement by which States are 
excluded from the RHR requirements. CAA section 169A(a)(1); 40 CFR 
51.308(f). Therefore, Kansas, like every other State,(and the District 
of Columbia and the U.S. Virgin Islands) regardless of what transpired 
in the first planning period, is required to submit a second planning 
period SIP that meets the requirements of the CAA, as established in 
the RHR.
---------------------------------------------------------------------------

    \17\ See Response to KDHE Comment 1.
---------------------------------------------------------------------------

    If KDHE wanted to rely upon the emission reductions achieved by 
Evergy and other Kansas sources during the first planning period, then 
Kansas must document the technical basis on which it is relying to 
determine that those emissions reductions measures are necessary to 
make reasonable progress for the second planning period. 40 CFR 
51.308(f)(2)(iii). Kansas's submission did not provide the requisite 
documentation, including a reasoned analysis of why it declined to 
select any sources; did not make a connection between the source 
selection step for the second planning period and the emissions 
controls implemented; and did not provide an analysis of its first 
planning period source selection and four factor considerations. 
Instead, Kansas simply points to the SO2 reductions achieved 
during the first planning period compared to other States. The EPA 
finds that this is not a reasonable analysis when determining what 
measures are necessary for reasonable progress for the second planning 
period.
    Additionally, the statute and rule require evaluation of emissions 
sources and consideration of the four statutory factors to be part of 
the State's SIP revision for the second planning period for regional 
haze regardless of the outcome of the required state-to-state 
consultation. During the consultation, a State may agree to certain 
measures necessary to make reasonable progress at a Class I area, and 
those measures must be included in the SIP revision. The state-to-state 
consultation also allows States to share the emission reduction 
measures that have been identified to reduce emissions from their own 
sources. Therefore, the state-to-state consultation is just one facet, 
among many, in determining which emission reduction measures for 
selected sources, or groups of sources, should be included in a State's 
LTS.
    Kansas's SIP submission included documentation of its consultations 
with Colorado and New Mexico, and neither State appeared to disagree 
with or comment on Kansas's LTS approach. However, the EPA disagrees 
with the assertion that, based on consultation, it was reasonable for 
Kansas to determine it did not have to select sources, apply the four 
statutory factors, or describe how the statutory factors were evaluated 
when selecting measures for inclusion in the LTS.
    As far as the EPA ``burdening Kansas emissions sources with even 
more analyses and financial obligations'', the EPA is obligated to 
implement the mandate created by Congress to prevent future, and remedy 
existing visibility impairment by requiring States to submit SIP 
revisions that include a LTS to make reasonable progress. CAA section 
169A(a)(1),(b)(2)(B). For the second planning period, the EPA conducted 
a rulemaking with public comment on how the States should be required 
to address the Congressional mandate. Notably, during that comment 
period, the EPA received no comments from Kansas or Kansas emission 
sources to this effect, nor any lawsuits from said parties. If Kansas 
or Kansas emissions sources have ideas on how to meet the Congressional 
mandate without further burden on States or sources, we encourage said 
parties to be involved in the public discourse with the EPA as it 
relates to the third planning period.
    Kansas Utilities' Comment 3: Evergy and Sunflower commented that 
the EPA failed to consider Kansas's analyses of sources that KDHE 
included in its Responsiveness Summary. Evergy asserted that the 
analyses performed by KDHE demonstrate the current NOX 
controls at the Evergy--La Cygne facility satisfy the requirements to 
consider additional controls. Sunflower commented that the narrative 
analyses demonstrate that the current SO2 controls at the 
Sunflower--Holcomb unit result in a reasonable conclusion that further 
analysis of this unit is not reasonable.
    The commenters stated the EPA should review the 2021 SIP again and 
notice that each factor required to be discussed was identified and 
commented on in the 2021 SIP submission. Evergy and Sunflower argued 
the EPA's statement that the 2021 SIP lacks a LTS is patently false.
    Response to Kansas Utilities' Comment 3: As similarly addressed in 
response to KDHE's Comment 3, the EPA disagrees with Evergy and 
Sunflowers that KDHE's narrative analyses satisfy the regulatory 
requirements.\18\ The narrative analyses are insufficient because the 
analyses did not include an explanation of why it is reasonable to 
assume that the four-factor analysis would likely result in the 
conclusion that no further controls are reasonable for these two 
sources. Furthermore, Kansas did not analyze lower emission rate(s) as 
a potential control option for these sources. The narrative analyses 
states that the recent actual emissions for La Cygne and Holcomb are 
below the current enforceable emission limits, and therefore, Kansas 
failed to evaluate a full range of control options as required.
---------------------------------------------------------------------------

    \18\ See Response to KDHE Comment 3.
---------------------------------------------------------------------------

    Additionally, the Responsiveness Summary fails to satisfy the 
procedural requirements for public notice and comment in 40 CFR part 51 
because it was not part of Kansas's regional haze plan revision that 
went out for state-level public comment from May 27, 2021, to June 28, 
2021. 40 CFR 51.102(a) requires States to provide the opportunity to 
submit written comments on SIP submittals. 40 CFR 51.102(a). 40 CFR 
51.104(c) states ``EPA will approve revisions only after applicable 
hearing requirements of Sec.  51.102 have been satisfied.'' 40 CFR 
51.104(c). The public did not have an opportunity to submit written 
comments on the analyses provided by Kansas in the Responsive Summary.
    Due to the substantive and procedural defects surrounding the 
Responsiveness Summary, the EPA has determined that the narrative 
analyses do not meet the RHR requirements, and therefore, the EPA 
proposes disapproval of Kansas's SIP revision.\19\
---------------------------------------------------------------------------

    \19\ See Response to KDHE comment 3.
---------------------------------------------------------------------------

    Kansas Utilities' Comment 4: The Kansas Utilities stated the EPA is 
authorized to require by regulation that a SIP ``contain such emission 
limits, schedules of compliance and other measures as may be necessary 
to make reasonable progress toward meeting the national goal . . .'' 
The commenters argued that the trigger warranting evaluation of those 
factors is, by statute, whether it is first ``necessary'' to meet the 
national goal, and an evaluation is unnecessary in instances where the 
visibility impact is <1.00%. The Kansas Utilities asserted that Kansas 
demonstrated that ``substantive''

[[Page 64382]]

revision of the existing SIP is unnecessary because the regulation 
clearly and unambiguously establishes that a State may determine that 
no substantive revision to the existing SIP is necessary. The Kansas 
Utilities concluded that Kansas reasonably determined that no 
substantive revision of the SIP is necessary based on all of the 
information provided in the 2021 SIP.
    Response to Kansas Utilities' Comment 4: As similarly addressed in 
Responses to KDHE Comments 2 and 4, the EPA disagrees with this 
comment. The Kansas Utilities makes the same arguments and provide 
similar data as KDHE regarding when evaluation of the four statutory 
factors is ``necessary'' under the CAA and RHR. As such, the EPA's 
Response to KDHE Comment 2 is applicable to this comment. To the extent 
that the Kansas Utilities assert KDHE's argument that, per 40 CFR 
51.308(f)(5), Kansas has demonstrated a substantive revision of the 
existing plan is unnecessary, the EPA's Response to KDHE Comment 4 is 
applicable and conveys why this regulatory interpretation is incorrect.
    Kansas Utilities' Comment 5: The commenters stated that the 
existing Kansas regional haze emission limits will continue to show 
reasonable progress towards achieving visibility gains in the affected 
Class I areas through the second planning period.
    Response to Kansas Utilities' Comment 5: As stated throughout this 
document, while the EPA recognizes the gains made at most of the Class 
I areas affected by Kansas sources, Kansas is nonetheless still 
required to comply with the regulatory requirements of analyzing 
sources, or groups of sources, via application of the four statutory 
factors, to determine if there are new or additional cost effective 
controls that would result in reasonable progress towards natural 
visibility.
    If Kansas wanted to rely on an argument that their existing 
effective controls are necessary for reasonable progress in the second 
planning period, the EPA has provided guidance on how to analyze and 
provide the proper documentation to back up such a finding. However, 
Kansas did not properly analyze whether the Kansas sources' existing 
measures are necessary for reasonable progress and thus a part of their 
LTS for the second planning period. The 2021 Clarifications Memo states 
``the existence of an enforceable emission limit or other enforceable 
requirement reflecting a source's existing measures may also be 
evidence that the source will continue implementing those measures. . . 
. States should provide information on any enforceable emission limits 
associated with sources' existing measures.'' 2021 Clarifications Memo 
at 9. The SIP should further identify the applicable permits and the 
relevant limits and provide a copy of the underlying permit with the 
SIP submission, if it is not publicly available. Id. at 9-10. Without 
this information, which is an integral part of the LTS, the SIP is 
deficient, and the EPA cannot approve the submission.
    Kansas Utilities' Comment 6: The commenters stated that as Kansas 
was concluding the regional haze SIP revision process for the first 
planning period, it was recognized by all those involved that Evergy 
was going above and beyond the emission reductions required for the 
first regional haze planning period. Evergy asserted that there was 
recognition that these additional emission reductions or ``reasonable 
progress emission reductions'' would be utilized in the future to aid 
Kansas in complying with the second regional haze planning period.
    Response to Kansas Utilities' Comment 6: The EPA recognizes that 
Kansas made significant emissions reductions during the first planning 
period. However, beginning in 2015 and concluding in 2017, the EPA 
revised the RHR. As previously stated throughout this document, the 
revised rule clearly requires all States to have a LTS where the States 
evaluate and determine the emission reduction measures that are 
necessary for reasonable progress by considering the four statutory 
factors, and the emission reduction measures that are necessary for 
reasonable progress need to be Federally enforceable. The revised rule 
did not codify any exemption or use of early reductions for emission 
sources, or its predecessors or successors. Since Kansas did not select 
sources to evaluate for further controls, the EPA cannot evaluate any 
claims regarding certain sources, or groups of sources.

IV. What action is the EPA taking?

    The EPA is taking final action to disapprove Kansas's SIP revision 
related to the regional haze requirements for the second planning 
period. Disapproval does not trigger imposition of mandatory sanctions. 
The effective date of this action does trigger an obligation for the 
EPA to issue a FIP within two years.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA 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 14094 (88 FR 21879, April 11, 2023);
     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); and
     Is not subject to requirements of the National Technology 
Transfer and Advancement Act (NTTA) because this action does not 
involve technical standards; and
     This action does not have Tribal implications as specified 
in Executive Order 13175. This action does not apply on any Indian 
reservation land, any other area where the EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction, or non-reservation areas of 
Indian country. Thus, Executive Order 13175 does not apply to this 
action.
     Executive Order 12898 (Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations, 59 FR 7629, February 16, 1994) and Executive Order 14096 
(Revitalizing Our Nation's Commitment to Environmental Justice for All, 
88 FR 25251, April 21, 2023) directs Federal agencies to identify and 
address ``disproportionately high and adverse human health or 
environmental effects'' of t/heir actions on minority

[[Page 64383]]

populations and low-income populations to the greatest extent 
practicable and permitted by law. The EPA defines environmental justice 
(EJ) as ``the fair treatment and meaningful involvement of all people 
regardless of race, color, national origin, or income with respect to 
the development, implementation, and enforcement of environmental laws, 
regulations, and policies.'' The EPA further defines the term fair 
treatment to mean that ``no group of people should bear a 
disproportionate burden of environmental harms and risks, including 
those resulting from the negative environmental consequences of 
industrial, governmental, and commercial operations or programs and 
policies.''
    KDHE did not evaluate environmental justice considerations as part 
of its SIP submittal; the CAA and applicable implementing regulations 
neither prohibit nor require such an evaluation. The EPA did not 
perform an EJ analysis and did not consider EJ in this action. Due to 
the nature of the action being taken here, this action is expected to 
have a neutral impact on the air quality of the affected area. 
Consideration of EJ is not required as part of this action, and there 
is no information in the record inconsistent with the stated goal of 
E.O. 12898 of achieving environmental justice for people of color, low-
income populations, and Indigenous peoples. While the Conservation 
Groups did adversely comment that the EPA should consider EJ, they did 
not provide any different steps or outcomes the EPA should take or 
arrive at. See our response to comments document in the docket for this 
action.
    This action is subject to the Congressional Review Act, and the EPA 
will submit a rule report to each House of the Congress and to the 
Comptroller General of the United States. 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 October 7, 2024. 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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: July 30, 2024.
Meghan A. McCollister,
Regional Administrator, Region 7.
[FR Doc. 2024-17182 Filed 8-6-24; 8:45 am]
BILLING CODE 6560-50-P