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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 97

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

[RIN ]

Inclusion of Iowa, Kansas, Michigan, Missouri, Oklahoma, and 

Wisconsin in the Federal Implementation Plans to Reduce 

Interstate Transport of Ozone

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

SUMMARY: In this supplemental notice of proposed rulemaking 

(SNPR), EPA is providing an opportunity for public comment on 

our conclusion that Iowa, Kansas, Michigan, Missouri, 

Oklahoma, and Wisconsin significantly contribute to downwind 

nonattainment or interfere with maintenance of the 1997 ozone 

National Ambient Air Quality Standards (NAAQS)in other 

states, and the related conclusion that these six states 

should be covered by the ozone season NOx program created in 

the Transport Rule (Federal Implementation Plans to Reduce 

Interstate Transport of Fine Particulate Matter and Ozone). 

In addition, this notice identifies the ozone season NOx

budgets, associated variability limits, and allowance 

allocations that would be used for each state if EPA takes 

final action to include the named states in the Transport 

Rule ozone season NOx program. 

DATES: Comments must be received on or before August 8, 2011.

A public hearing, if requested, will be held in Washington, 

D.C. on July 21, 2011, beginning at 9:00 a.m. If a public 
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hearing is requested, the comment period will remain open 

until August 22, 2011.

ADDRESSES: Submit your comments, identified by Docket ID

No. OAR-EPA–HQ–OAR–2009–0491, by one of the following 

methods:

• Federal eRulemaking Portal:

http://www.regulations.gov. Follow the on-line

instructions for submitting comments.

• Agency Website: http://www.epa.gov/edocket.

EDOCKET, EPA’s electronic public docket and comment 

system, is EPA’s preferred method for receiving 

comments. Follow the on-line instructions for submitting 

comments.

• E-mail: A-and-R-Docket@epa.gov.

• Fax: (202) 566-1741.

• Mail: Air Docket, Environmental Protection Agency,

Mailcode: 6102T, 1200 Pennsylvania Ave., NW, Washington, 

DC 20460. Please include a total of two copies.

• Hand Delivery: EPA Docket Center (Air Docket),

U.S. Environmental Protection Agency, 1301

Constitution Avenue, NW, Room B102, Washington,

DC 20004. Such deliveries are only accepted during the 

Docket’s normal hours of operation, and special 

arrangements should be made for deliveries of boxed 

information.

Instructions: Direct your comments to Docket ID No. EPA–HQ–

OAR–2009–0491. The EPA's policy is that all comments received

will be included in the public docket without change and may

be made available online at http://www.epa.gov/edocket,

including any personal information provided, unless the

comment includes information claimed to be Confidential
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Business Information (CBI) or other information whose

disclosure is restricted by statute. Do not submit

information that you consider to be CBI or otherwise

protected through EDOCKET, regulations.gov, or e-mail. The

EPA EDOCKET and the Federal regulations.gov websites are

“anonymous access” systems, which means EPA will not know

your identity or contact information unless you provide it in 

the body of your comment. If you send an e-mail comment

directly to EPA without going through EDOCKET or

regulations.gov, your e-mail address will be automatically

captured and included as part of the comment that is placed

in the public docket and made available on the Internet. If

you submit an electronic comment, EPA recommends that you

include your name and other contact information in the body

of your comment and with any disk or CD-ROM you submit. If

EPA cannot read your comment due to technical difficulties

and cannot contact you for clarification, EPA may not be able 

to consider your comment. Electronic files should avoid the 

use of special characters, any form of encryption, and be 

free of any defects or viruses.

Docket: All documents in the docket are listed in the EDOCKET 

index at http://www.epa.gov/edocket. (Docket ID No.OAR-EPA–

HQ–OAR–2009–0491 in its entirety is incorporated by reference 

into this SNPR.) 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 either electronically in EDOCKET or in hard copy at 

the Air Docket,EPA/DC, EPA West, Room B102, 1301 Constitution 
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Ave., NW, Washington, DC. The Public Reading Room is open 

from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 

legal holidays. The telephone number for the Public Reading 

Room is (202) 566-1744, and the telephone number for the Air

Docket is (202) 566-1742. This Docket Facility is open from

8:00 a.m. to 5:30 p.m., Monday through Friday, excluding

legal holidays. The Docket telephone number is (929)566-1742, 

fax (202) 566-1741.

FOR FURTHER INFORMATION CONTACT: Questions concerning today's 

action should be addressed to Ms. Doris Price, Clean Air 

Markets Division, Office of Atmospheric Programs, Mail Code 

6204J, Environmental Protection Agency, 1200 Pennsylvania 

Avenue, NW., Washington, DC 20460; telephone number: (202) 

343-9067; fax number: (202) 343-2356; e-mail address:

price.doris@epa.gov.

SUPPLEMENTARY INFORMATION:

PUBLIC HEARING

A public hearing, if requested, will be held in

Washington D.C. on July 21, 2011, beginning at 9:00 a.m.

If you wish to request a hearing and present testimony or

attend the hearing, you should notify, on or before

July 14, 2011, Ms. Doris Price, Clean Air Markets Division, 

Office of Atmospheric Programs, Mail Code 6204J, 

Environmental Protection Agency, 1200 Pennsylvania Avenue, 

NW., Washington, DC 20460; telephone number: (202) 343-9067; 

fax number: (202) 343-2356; e-mail address:

price.doris@epa.gov. Oral testimony will be limited to 5

minutes each. The hearing will be strictly limited to the

subject matter of the proposal, the scope of which is
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discussed below. Any member of the public may file a written 

statement by the close of the comment period.

Written statements (duplicate copies preferred) should 

be submitted to Docket ID No. EPA–HQ–OAR–2009–0491, at the 

address listed above for submitted comments. The hearing 

location and schedule, including lists of speakers, will be 

posted on EPA's webpage at http://www.epa.gov/airtransport.

A verbatim transcript of the hearing and written 

statements will be made available for copying during normal 

working hours at the Office of Air and Radiation Docket and

Information Center at the address listed for inspection for

documents.

If no requests for a public hearing are received by

close of business on July 14, 2011, a hearing will not be 

held and this announcement will be made on the webpage at the 

address shown above.

Glossary of Terms and Abbreviations

The following are abbreviations of terms used in this SNPR:

CFR Code of Federal Regulations

EGU Electric Generating Unit

FIP Federal Implementation Plan

FR Federal Register

EPA U.S. Environmental Protection Agency

ICR Information Collection Request 

NAAQS National Ambient Air Quality Standards

NODA Notice of Data Availability

NOX Nitrogen Oxides

SIP State Implementation Plan

OMB Office of Management and Budget 

PM2.5 Fine Particulate Matter, Less Than 2.5 Micrometers
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PM Particulate Matter

RIA Regulatory Impact Analysis

SNPR Supplemental Notice of Proposed Rulemaking

SO2 Sulfur Dioxide

TSD Technical Support Document

Outline

I. Today’s Proposal

A. Application of Methodologies to Identify 

Nonattainment and Maintenance Receptors and to 

Determine Significant Contribution and Interference 

with Maintenance

B. Ozone Season NOx Emission Budgets for Six States

C. Allowance Allocations to Covered Units in Each of the 

Six States

D. Implementation

E. Expected Effects of the Proposed Action

II. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

and Executive Order 13563: Improving Regulation and 

Regulatory Review

B. Paperwork Reduction Act

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act

E. Executive Order 13132: Federalism

F. Executive Order 13175: Consultation and Coordination

with Indian Tribal Governments

G. Executive Order 13045: Protection of Children from

Environmental Health and Safety Risks

H. Executive Order 13211: Actions That Significantly

Affect Energy Supply, Distribution or Use

I. National Technology Transfer Advancement Act
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J. Executive Order 12898: Federal Actions to Address

Environmental Justice in Minority Populations and 

Low-Income Populations

Appendix A: Proposed Unit-Level Ozone Season NOx Allowance 

Allocations to Existing Units in Six States 

I. Today’s Proposal

In this supplemental notice of proposed rulemaking 

(SNPR), EPA is providing an opportunity for public comment on 

its conclusion that Iowa, Kansas, Michigan, Missouri, 

Oklahoma, and Wisconsin significantly contribute to 

nonattainment or interfere with maintenance of the 1997 ozone 

National Ambient Air Quality Standards (NAAQS) in other 

states, and the related conclusion that these six states 

should be covered by the Transport Rule1 ozone season NOX

program. In addition, this notice identifies the ozone

season NOX budgets, associated variability limits, and 

allowance allocations that would be used for each state if 

EPA takes final action to include the named states in the 

Transport Rule ozone season NOX program. Note that EPA is 

not taking comment on or reopening any aspect of the final 

Transport Rule through this notice.

EPA is taking action, simultaneously with this proposal,

to finalize ozone season NOX emission reduction requirements 

for 20 covered states in a final rule entitled Federal 

Implementation Plans to Reduce Interstate Transport of Fine 

Particulate Matter and Ozone, which was proposed on July 6, 

 

1 Federal Implementation Plans to Reduce Interstate Transport 

of Fine Particulate Matter and Ozone: Final Rule. Available 

on the Web at http://www.epa.gov/airtransport.
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2010.2 In that final rule, EPA is also finalizing annual NOx

and annual SO2 state emission reduction requirements to 

eliminate significant contribution to nonattainment and 

interference with maintenance for the annual (1997) fine 

particulate NAAQS and the 2006 24-hour fine particulate 

NAAQS. 

This action proposes the inclusion of six additional 

states (Iowa, Kansas, Michigan, Missouri, Oklahoma, and 

Wisconsin) in the Transport Rule ozone season NOX program. 

Analyses conducted by EPA for the final Transport Rule 

demonstrate that these six states significantly contribute to 

nonattainment or interfere with maintenance of the 1997 ozone 

NAAQS in another state. 

The modeling for the final Transport Rule identifies two 

maintenance areas for the 1997 ozone NAAQS that were not 

identified in the proposal: Allegan County, MI and Harford 

County (near Baltimore), MD. Five of the states covered in 

this SNPR are linked only to these newly identified ozone 

maintenance receptors. Consequently, if EPA had not 

identified these receptors as ozone maintenance receptors,

the states would not be covered by the Transport Rule ozone

season NOX program. These five states are Iowa, Kansas, 

Oklahoma, and Wisconsin (all linked only to Allegan County) 

and Michigan (linked only to Harford County). The sixth 

state, Missouri, is linked to Harris County, TX, Brazoria 

County, TX, and Allegan County, MI.

Three of these states (Iowa, Missouri, and Wisconsin) 

were not included in the proposed Transport Rule ozone season 

NOx program. The modeling for the final Transport Rule 

 

2 75 FR 45210 (August 2, 2010).
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demonstrates that these three states significantly contribute 

to nonattainment or interfere with maintenance for the 1997 

ozone NAAQS in another state. EPA is taking comment on 

whether the final methodologies for determining if a state 

significantly contributes to nonattainment or interferes with 

maintenance has been correctly applied to Iowa, Kansas, 

Michigan, Missouri, Oklahoma, and Wisconsin with respect to 

the 1997 ozone NAAQS.

In this notice, EPA is proposing to include the six 

states identified above in the Transport Rule ozone season 

NOX program. Five of the six states covered by this 

proposal -- Iowa, Kansas, Michigan, Missouri, and Wisconsin -

- are included in the final Transport Rule for PM2.5 but not 

for ozone3. The sixth state, Oklahoma, is not currently 

included in any part of the final Transport Rule. In this 

notice, EPA is taking comment only on its conclusions with 

respect to the inclusion of these individual states in the 

ozone season NOx program as specifically described below.

In this notice, EPA is not taking comment on any aspect 

of the final Transport Rule, including any aspect of the 

methodology used to identify receptors for nonattainment; the 

methodology used to identify receptors for maintenance; the 

methodology used to identify any specific state’s significant 

contribution and interference with maintenance; the 

methodologies used to establish state budgets, variability 

limits, and state assurance levels; or the methodologies used 

to allocate allowances to existing units, to establish new 

unit set-asides and Indian country new unit set-asides, or to 

 

3

 States covered by the Transport Rule for PM2.5 are required 

to limit their annual emissions of NOx. 
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allocate allowances in these set-asides. EPA provided an 

adequate opportunity for public comment on all of these 

issues during the comment period for the proposed Transport 

Rule and during the comment periods for the associated 

Notices of Data Availability (NODAs).

4 EPA received numerous 

comments on the proposed Transport Rule and on the associated 

NODAs and considered all comments received during the comment 

periods for these actions before finalizing the Transport 

Rule. 

EPA is also not taking comment on the emissions 

inventories used for the final Transport Rule modeling, 

including the emissions inventories for the six states 

identified above. EPA provided ample opportunity for comment 

on these inventories during the comment period for the 

proposed Transport Rule and the comment periods for the NODAs 

associated with that proposal. Inventories for all states 

 

4

 Notice of Data Availability Supporting Federal 

Implementation Plans to Reduce Interstate Transport of Fine 

Particulate Matter and Ozone (75 FR 53613; September 1, 

2010). This NODA provided additional information on an 

updated version of the power sector modeling platform and 

data inputs EPA proposed to use to support the final 

Transport Rule.

Notice of Data Availability Supporting Federal 

Implementation Plans to Reduce Interstate Transport of Fine 

Particulate Matter and Ozone: Revisions to Emission 

Inventories (75 FR 66055; October 27, 2010).

Notice of Data Availability for Federal Implementation Plans 

to Reduce Interstate Transport of Fine Particulate Matter and 

Ozone: Request for Comment on Alternative Allocations, 

Calculation of Assurance Provision Allowance Surrender 

Requirements, New-Unit Allocations in Indian Country, and 

Allocations by States (76 FR 1109; January 7, 2011).
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included in the modeling domain were made available for 

public comment during that process. EPA made numerous 

changes to these inventories in response to public comments. 

Furthermore, the public had an incentive to comment on the 

inventories for these six states, not only because these 

inventories affect the modeling for all states in the 

modeling domain, but also because EPA was proposing to 

include all six states in at least one of the Transport Rule 

trading programs and the inventories were used for allocating 

the existing-unit portion of state emissions budgets to 

covered units. The three states covered by this SNPR that 

were not included in the ozone season program in the proposed 

Transport Rule (Iowa, Missouri, and Wisconsin) were covered

for the annual PM2.5 program and therefore had reason to look 

closely at the unit and NOx emissions data EPA made available 

in the proposal and the NODAs.

A. Application of Methodologies to Identify Nonattainment and

Maintenance Receptors and to Determine Significant 

Contribution and Interference with Maintenance

In this SNPR, EPA is providing an opportunity for public 

comment on our conclusion that Iowa, Kansas, Michigan, 

Missouri, Oklahoma, and Wisconsin significantly contribute to 

nonattainment or interfere with maintenance of the 1997 ozone 

NAAQS in another state. As noted above, EPA is not taking 

comment on the methodologies to identify nonattainment and

maintenance receptors and to determine significant 

contribution and interference with maintenance, which were 

finalized in the Transport Rule. Rather, we are accepting 

comment on the conclusion that application of these

methodologies demonstrates that these six states should be 
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included in the Transport Rule ozone season NOX program. As 

described in detail in the preamble to the final Transport 

Rule, sections V.C, “Air Quality Modeling to Identify 

Downwind Nonattainment and Maintenance Receptors,” and V.D,

“Pollution Transport from Upwind States,” and in the 

Technical Support Document “Air Quality Modeling” for the 

final Transport Rule, application of the Transport Rule 

methodologies identifies Allegan County, MI, and Harford 

County, MD, as ozone maintenance receptors. In addition, 

application of the Transport Rule methodologies shows that 

Iowa, Kansas, Michigan, Missouri, Oklahoma, and Wisconsin all 

significantly contribute to nonattainment or interfere with 

maintenance of the 1997 ozone NAAQS in another state. EPA 

requests comment on whether there are errors in the Agency’s

application of the Transport Rule methodologies with respect 

to the two receptors and the six states identified above.

B. Ozone Season NOx Emission Budgets for Six States

In this SNPR, EPA is also proposing state ozone season 

NOx emissions budgets for covered units (generally large 

electric generating units) in Iowa, Kansas, Michigan, 

Missouri, Oklahoma, and Wisconsin. The applicability 

provisions for determining covered units in the named six 

states for the Transport Rule ozone season NOx program are 

the same as those described in section VII.B, 

“Applicability,” of the preamble to the final Transport Rule. 

As noted above, EPA is not taking comment on the 

methodologies used to establish state budgets, variability 

limits, or state assurance levels. Rather, in this section, 

we are requesting comment on the state ozone season NOX

emissions budgets calculated using these methodologies. 
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These budgets are presented in Table I.B-1. The associated 

variability limits and state assurance levels are presented 

in Table I.B-2.

Table I.B-1: Ozone Season NOx State Emissions Budgets for 

Electric Generating Units before Accounting for Variability* 

(tons)

2012 - 

2013

2014 and 

beyond

Iowa 16,532 16,207

Kansas 13,536 10,998

Michigan 25,752 24,727

Missouri 22,762 21,073

Oklahoma 21,835 21,835

Wisconsin 13,704 13,216

Note - These state emissions budgets apply to 

emissions from electric generating units greater 

than 25 MW and covered by the Transport Rule 

Program.

* The impact of variability on budgets is discussed 

in Federal Implementation Plans to Reduce 

Interstate Transport of Fine Particulate Matter and 

Ozone: Final Rule, section VI.E.

Table I.B-2: Variability Limits and State Assurance Levels 

for Ozone Season NOx Emissions

(tons)

2012 - 

2013

2014 and 

beyond

2012 - 

2013

2014 and 

beyond

Iowa 1,653 1,621 18,185 17,828

Kansas 1,353 1,100 14,889 12,098

Michigan 2,575 2,472 28,327 27,199

Missouri 2,276 2,107 25,038 23,180

Oklahoma 2,184 2,184 24,019 24,019

Wisconsin 2,056 1,982 15,760 15,198

Emissions 

Variability Limit 

(tons)

State Emissions 

Assurance Level 

(tons)

Note: Variability limits and assurance levels apply to 

each state’s emissions from covered sources, as defined 

by Federal Implementation Plans to Reduce Interstate 
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Transport of Fine Particulate Matter and Ozone: Final 

Rule.

C. Allocation of Allowances to Covered Units in Each of the 

Six States

EPA is proposing to allocate ozone season NOx allowances 

to covered units in Iowa, Kansas, Michigan, Missouri,

Oklahoma, and Wisconsin using the methodology and procedures 

used for allocations to units covered by the Transport Rule 

ozone season NOx program. These are specified in section 

VII.D, ”Allocation of Emission Allowances,” of the preamble 

to the final Transport Rule. Appendix A to this proposal 

presents the proposed unit-level allocations of ozone season 

NOx allowances to existing covered units in each of the six 

states and the supporting data. EPA is taking comment only 

on the data inputs (e.g., corrections to the heat input value 

used for any particular unit) used in applying the allowance 

allocation methodology for existing units and on the 

resulting existing-unit allocations that we are proposing for 

the six states involved. EPA provided ample opportunity for 

comment on the methodologies used for allowance allocation 

and for establishing the set-asides both in the public 

comment period following the rule proposal and through the

January 7, 2011 NODA. As discussed in section VII.D.1, 

“Allocations to Existing Units” of the preamble to the final 

Transport Rule, EPA has carefully evaluated and responded to 

numerous comments on this issue. These public comments were 

taken into account when finalizing the Transport Rule.5

 

5 EPA made some corrections to heat input data based on 

comments received from sources correcting such data.
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EPA is proposing that new unit set-asides for allowance 

allocations to new units be created and implemented for each 

of these six states in the same manner as for the other 20 

states covered in the Transport Rule ozone season NOx

program. This approach is described in section VII.D.2, 

“Allocations to New Units,” of the preamble to the final 

Transport Rule. Table I.C-1 shows the proposed new 

allocation percentages for ozone season NOX allowances for 

these states. As noted above, EPA is taking comment only on 

the application of the new unit set-aside methodology to 

these states and on the resulting set-asides that we are 

proposing (i.e., whether the percentages for the set-asides 

are calculated properly). EPA provided ample opportunity for 

comment on the new unit set-aside methodology in the public 

comment period following the rule proposal. 

Table I.C-1: State New Unit Set-Asides as a Percent of State 

Ozone Season NOx Emission Budgets

Ozoneseason NOx

Iowa 2%

Kansas 2%

Michigan 2%

Missouri 3%

Oklahoma 2%

Wisconsin 6%

As described in section VII.D.2, “Allocations to New 

Units,” of the preamble to the final Transport Rule, EPA is 

providing a mechanism to make allowances available in the 

future for new units built in Indian country. Table I.C-2

shows the new unit set-asides EPA is proposing for states 

which have areas of Indian country within their boundaries.

Under the final transport Rule, EPA will administer these 
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Indian country new unit set-asides regardless of whether a 

state replaces its Transport Rule FIP with an approved SIP. 

EPA is proposing to use the same mechanism for the states 

covered in this SNPR. EPA is taking comment only on the 

application of the Indian country new unit set-aside 

methodology to these states and on the resulting set-asides 

that we are proposing. EPA provided ample opportunity for 

comment on the methodologies for Indian country new unit setasides through the January 7, 2011 NODA. 

Table I.C-2: New Unit Set-Aside Allowances for

Indian Country (tons)

For Ozone 

Season NOx 

in 2012

For Ozone 

Season NOx 

in 2014

Iowa 17 16

Kansas 14 11

Michigan 26 25

Oklahoma 22 22

Wisconsin 14 13

D. Implementation

EPA is proposing that implementation of emission 

requirements for the six states addressed in this SNPR be 

identical to those for the other states covered by the 

Transport Rule ozone season NOX program. Refer to section 

IV.C-2, “FIP Authority for Each State and NAAQS Covered,” in 

the preamble to the final Transport Rule for a general 

discussion of EPA’s legal responsibility and authority to 

impose Federal Implementation Plans (FIPs) in certain 

circumstances where State Implementation Plans (SIPs) are 

deficient. The TSD “Status of 110(a)(2)(D)(i)(I) SIPs for 
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Iowa, Kansas, Michigan, Missouri, Oklahoma, Wisconsin with 

Respect to the 1997 Ozone NAAQS” identifies each action taken 

by EPA with respect to the 110(a)(2)(D)(i)(I) SIP 

requirements for the named states with respect to the 1997 

ozone NAAQS. This TSD demonstrates that EPA has authority 

and a legal obligation to promulgate each FIP proposed in 

this SNPR.

To be consistent and synchronize with the other states 

covered by the Transport Rule ozone season NOx program, EPA 

has not adjusted the timing for compliance with the ozone 

FIPS for these states.6 EPA expects to finalize this 

rulemaking on or before November 1, 2011; the ozone season 

for 2012 does not begin until May 1, 2012. This will allow 

an approximately six-month lead time before the start of the 

2012 ozone season. 

The vast majority of covered sources already have 

combustion controls installed; therefore, EPA expects that 

only a small number of sources will need to install 

combustion controls to comply, and the total number of 

installations is practical to achieve within the time period 

for additional construction. Individual sources may comply 

through other measures (such as purchasing additional 

 

6 As explained in the TSD, EPA proposed a SIP call requiring 

Kansas to address its deficiency for the 1997 Ozone NAAQS 

110(a)(2)(D)(i)(I) requirements (76 FR 763). EPA intends to 

finalize the SIP call concurrent with the finalization of 

this action. This will enable Kansas to use the same remedy 

as the other states covered by the final Transport Rule ozone 

season NOx program. (Specifically, Kansas may request--

through a letter submitted to EPA within three weeks of the 

final SIP call--that the Kansas ozone FIP be implemented at 

the same time as the other states.)
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allowances) in the event that it takes a particular source 

more than six months for installation of a given combustion 

control. EPA’s rationale for determining that this lead time 

is sufficient is described in detail in section VII.C 

“Compliance Deadlines” of the preamble to the final Transport 

Rule. 

EPA is also not proposing to alter the compliance 

deadlines or deadlines for submission of SIPs to replace the 

ozone FIPs for these six states. The submission deadlines and 

process for the six states covered by this SNPR, as well as 

the rationale behind them, can be found in section X

“Transport Rule State Implementation Plans” of the preamble 

to the final Transport Rule.

E. Expected Effects of the Proposed Action

This proposal is projected to limit ozone season NOX

emissions in Iowa, Kansas, Michigan, Missouri, Oklahoma, and 

Kansas beginning in 2012. The impacts of the Transport Rule 

inclusive of this proposal are discussed in section VIII of 

the preamble to the final Transport Rule. Table VIII-A.5 

shows the state-by-state ozone season NOX emissions 

reductions (compared to the base case) expected in both 2012 

and 2014. Overall ozone improvements, including these states 

and others, are displayed in Table VIII-B-2 and are discussed 

in greater detail in the Air Quality Modeling TSD.7 Overall 

benefits of the Transport Rule are discussed in section VIII 

 

7 The TSD for Federal Implementation Plans to Reduce 

Interstate Transport of Fine Particulate Matter and Ozone: 

Final Rule is incorporated in its entirety by reference into 

this SNPR.
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of the preamble to the final Transport Rule and in the 

Regulatory Impact Analysis to the final Transport Rule.

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and 

Executive Order 13563: Improving Regulation and Regulatory 

Review

Under Executive Order 12866 (58 FR 51735, October 4,

1993), the Agency must determine whether a regulatory action

is "significant" and therefore subject to Office of

Management and Budget (OMB) review and the requirements of

the Executive Order. The Order defines "significant

Regulatory action" as one that is likely to result in a rule

that may:

1. Have an annual effect on the economy of $100 million or

more or adversely affect in a material way the economy, 

a sector of the economy, productivity, competition, 

jobs, the environment, public health or safety, or 

State, local, or Tribal governments or communities;

2. Create a serious inconsistency or otherwise interfere

with an action taken or planned by another agency;

3. Materially alter the budgetary impact of entitlements,

grants, user fees, or loan programs or the rights and

obligations of recipients thereof; or

4. Raise novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles 

set forth in the Executive Order.

In view of its important policy implications and

potential effect on the economy of over $100 million, the

Transport Rule program inclusive of this proposal has been 

judged to be an economically “significant regulatory action” 
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Page 20 of 29

within the meaning of the Executive Order. Accordingly, EPA 

submitted the final Transport Rule and this SNPR to OMB for 

review under EO 12866 and EO 13563 (76 FR 3821, January 21, 

2011).

In addition, EPA prepared an analysis of the potential 

costs and benefits for the Transport Rule program inclusive 

of this proposal. This analysis is contained in the 

Regulatory Impact Analysis (RIA) for the Transport Rule. 

The RIA available in the docket describes in detail the 

empirical basis for EPA’s assumptions and characterizes the 

various sources of uncertainties affecting the estimates 

below. In doing this, EPA adheres to EO 13563, “Improving 

Regulation and Regulatory Review,” (76 FR 3,821, January 21, 

2011), which is a supplement to EO 12866. For additional 

information on how EPA’s benefit-cost analyses conform to the 

requirements of EO 13563, please see section XII.A of the

preamble to the final Transport Rule. EPA believes that there 

is no impact to the economy beyond that which is reported in 

the final Transport Rule.

1. What Economic Analyses Were Conducted for the Rulemaking?

The analyses conducted for the Transport Rule program 

inclusive of this proposal provide several important analyses 

of impacts on public welfare. These include an analysis of 

the social benefits, social costs, and net benefits of the 

regulatory scenario. The economic analyses also address 

issues involving small business impacts, unfunded mandates 

(including impacts for Tribal governments), and energy 

impacts.
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2. What Are the Benefits and Costs of the Transport Rule

Program?

The benefit-cost analysis shows that substantial net

economic benefits to society are likely to be achieved due

to reduction in emissions and improvements in ozone and PM2.5

ambient concentrations resulting from the Transport Rule 

program inclusive of this proposal. For more information on 

the costs and benefits for the Transport Rule program 

inclusive of this proposal, please refer to Table VIII.C-4 of 

the preamble to the final Transport Rule.

B. Paperwork Reduction Act

EPA is required to document the information collection 

burden imposed by the Transport Rule program on industry, 

States, and EPA in an information collection request (ICR). 

The ICR describes the information collection requirements 

associated with the final Transport Rule program inclusive of 

this proposal and estimates the incremental costs of 

compliance with all such requirements, such as the 

requirement for industry to monitor, record, and report 

emissions data to EPA.

The ICR for the final Transport Rule Program inclusive of 

this proposal has been submitted for approval to OMB under 

the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and the 

information collection requirements it documents are not 

enforceable until such approval has been granted. An ICR was 

also submitted to OMB in support of the proposed Transport 

Rule; no adverse comment was received by EPA on either the 

information collection requirements or their associated cost 

estimates as described in that document.
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EPA believes that there are no information collection 

requirements or burden beyond those reported in the Transport 

Rule program inclusive of this proposal.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires 

an agency to prepare a regulatory flexibility analysis of any 

rule subject to notice and comment rulemaking requirements 

under the Administrative Procedure Act or any other statute 

unless the agency certifies that the rule will not have a 

significant economic impact on a substantial number of small 

entities. Small entities include small businesses, small 

organizations, and small governmental jurisdictions.

After considering the economic impacts of the Transport 

Rule program inclusive of this proposal on small entities, as 

described in section XII.C of the preamble to the final 

Transport Rule, EPA certifies that this action will not have 

a significant economic impact on a substantial number of 

small entities (No SISNOSE). This certification is based on 

the economic impact of the final Transport Rule and this 

proposal if finalized on all affected small entities across 

all industries affected. EPA believes that the provisions of 

the Regulatory Flexibility Act are covered by and reported in 

section XII.C of the preamble to the final Transport Rule.

D. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 

(UMRA), 2 U.S.C. 1531-1538, requires federal agencies, unless 

otherwise prohibited by law, to assess the effects of their 

regulatory actions on state, local, and tribal governments 

and the private sector. The Transport Rule program inclusive
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of this proposal contains a Federal mandate that may result 

in expenditures of $100 million or more for state, local, and 

tribal governments, in the aggregate, or the private sector 

in any one year. Accordingly, EPA has prepared under section 

202 of the UMRA a written statement that is summarized in 

section XII.D of the preamble to the final Transport Rule. 

Consistent with the intergovernmental consultation 

provisions of section 204 of the UMRA, EPA held consultations 

with the governmental entities affected by the final 

Transport Rule and this proposal if finalized. As detailed in 

section XII.D of the preamble to the final Transport Rule, 

EPA participated in informational calls with the 

Environmental Council of the States (ECOS) and the National 

Governors Association to provide information about the 

January 7, 2011 NODA8 directly to state and local officials 

and conducted consultations with federally recognized tribes 

prior to finalizing the final Transport Rule and issuing this

SNPR for inclusion of six additional states (of which five—-

Iowa, Kansas, Michigan, Oklahoma, and Wisconsin—-have Indian 

country within their boundaries).

EPA believes that no unfunded mandates have been created 

by the Transport Rule program inclusive of this proposal. 

Neither the final Transport Rule nor the provisions in this 

SNPR have regulatory requirements that might significantly or 

uniquely affect small governments.

E. Executive Order 13132: Federalism

As described in section XII.E of the preamble to the 

final Transport Rule, EPA has concluded that the Transport 

 

8

 76 FR 1109 (January 7, 2011).
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Rule program inclusive of this proposal does not have 

federalism implications. Thus, Executive Order 13132 does 

not apply to the final Transport Rule or to this SNPR.

F. Executive Order 13175: Consultation and Coordination with 

Indian Tribal Governments

Under Executive Order 13175 (65 FR 67249, November 9, 

2000), EPA may not issue a regulation that has tribal 

implications, that imposes substantial direct compliance 

costs, and that is not required by statute, unless the 

Federal government provides the funds necessary to pay the 

direct compliance costs incurred by tribal governments, or 

EPA consults with tribal officials early in the process of 

developing the proposed regulation and develops a tribal 

summary impact statement. As described in section XII.F of 

the preamble to the final Transport Rule, EPA believes that 

there has been proper consultation and coordination with 

Indian tribal governments for the Transport Rule program 

inclusive of this proposal.

As required by section 7(a) of the Executive Order, 

EPA’s Tribal Consultation Official has certified that the 

requirements of the Executive Order have been met in a 

meaningful and timely manner. A copy of the certification is 

included in the docket for the final Transport Rule.

G. Executive Order 13045: Protection of Children from 

Environmental Health and Safety Risks

Executive Order 13045 (62 FR 19,885, April 23, 1997) 

applies to any rule that: 1) is determined to be 

“economically significant” as defined under EO 12866, and 2) 

concerns an environmental health or safety risk that EPA has 

reason to believe may have a disproportionate effect on 
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children. If the regulatory action meets both criteria, the 

Agency must evaluate the environmental health or safety 

effects of this planned rule on children, and explain why 

this planned regulation is preferable to other potentially 

effective and reasonably feasible alternatives considered by 

the Agency.

As described in section XII.G of the preamble to the 

finale Transport Rule, the Transport Rule program inclusive 

of this proposal is not subject to Executive Order 13045 

because it does not involve decisions that increase 

environmental health or safety risks that may 

disproportionately affect children. The EPA believes that 

the emissions reductions from the strategies in the Transport 

Rule program inclusive of this proposal will further improve 

air quality and will further improve children’s health. 

H. Executive Order 13211: Actions that Significantly Affect

Energy Supply, Distribution, or Use

Executive Order 13211 (66 FR 28355, May 22, 2001) 

provides that agencies shall prepare and submit to the 

Administrator of the Office of Regulatory Affairs, OMB, a 

Statement of Energy Effects for certain actions identified as 

“significant energy actions.” Section 4(b) of Executive 

Order 13211 defines “significant energy action” as “any 

action by an agency (normally published in the Federal 

Register) that promulgates or is expected to lead to the 

promulgation of a final rule or regulation, including notices 

of inquiry, advance notices of proposed rulemaking, and 

notices of proposed rulemaking: (1) (i) that is a 

significant regulatory action under Executive Order 12866 or 

any successor order, and (ii) is likely to have a significant 

adverse effect on the supply, distribution, or use of energy; 
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or (2) that is designated by the Administrator of the Office 

of Information and Regulatory Affairs as a significant energy 

action.” This rule is a significant regulatory action under 

Executive Order 12866, and this rule is likely to have a 

significant adverse effect on the supply, distribution, or 

use of energy. EPA prepared a Statement of Energy Effects

for the transport Rule program inclusive of this proposal 

which appears in section XII.H of the preamble to the final 

Transport Rule.

EPA believes that there is no impact to the energy 

supply beyond that which is reported for the Transport Rule 

program inclusive of this proposal in the final Transport 

Rule.

I. National Technology Transfer Advancement Act

Section 12(d) of the National Technology Transfer and 

Advancement Act of 1995 (‘‘NTTAA’’), Public Law 104–113, 

12(d) (15 U.S.C. 272 note) directs EPA to use voluntary 

consensus standards in its regulatory activities unless to do

so would be inconsistent with applicable law or otherwise 

impractical. Voluntary consensus standards are technical 

standards (e.g., materials specifications, test methods, 

sampling procedures, and business practices) that are 

developed or adopted by voluntary consensus standards bodies. 

NTTAA directs EPA to provide Congress, through OMB, 

explanations when the Agency decides not to use available and 

applicable voluntary consensus standards. As described in 

section XII.I of the preamble to the final Transport Rule, 

the Transport Rule program inclusive of this proposal will 

require all sources to meet the applicable monitoring 
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requirements of 40 CFR part 75. Part 75 already incorporates 

a number of voluntary consensus standards. 

J. Executive Order 12898: Federal Actions to Address

Environmental Justice in Minority Populations and Low-Income

Populations

Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) 

establishes federal executive policy on environmental 

justice. Its main provision directs federal agencies, to the 

greatest extent practicable and permitted by law, to make 

environmental justice part of their mission by identifying 

and addressing, as appropriate, disproportionately high and 

adverse human health or environmental effects of their 

programs, policies, and activities on minority, low-income, 

and Tribal populations in the United States. During 

development of this Transport Rule program inclusive of this 

proposal, EPA considered its impacts on low-income, minority, 

and tribal communities in several ways and provided multiple 

opportunities for these communities to meaningfully 

participate in the rulemaking process. As described in 

section XII.J of the preamble to the final transport Rule, 

EPA believes that the final remedy in the Transport Rule 

program inclusive of this proposal addresses potential 

environmental justice concerns about localized hot spots and 

reduces ambient concentrations of pollution where they are 

most needed by sensitive and vulnerable populations.

EPA believes that the vast majority of communities and 

individuals in areas covered by the Transport Rule program 

inclusive of this proposal, including numerous low-income, 

minority, and tribal individuals and communities in both 

rural areas and inner cities in the eastern and central U.S., 
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will see significant improvements in air quality and 

resulting improvements in health. EPA’s assessment of the 

effects of the final Transport Rule program inclusive of this 

proposal on these communities is detailed in section XII.J of 

the preamble to the final Transport Rule. Based on this 

assessment, EPA concludes that we do not expect 

disproportionately high and adverse human health or 

environmental effects on minority, low-income, or tribal 

populations in the United States as a result of implementing 

the Transport Rule program inclusive of this proposal.
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Inclusion of Iowa, Kansas, Michigan, Missouri, Oklahoma, and 

Wisconsin in the Federal Implementation Plans to Reduce 

Interstate Transport of Ozone—Page 29 of 29

List of Subjects in 40 CFR Part 52

Administrative practice and procedure, Air pollution control, 

Intergovernmental relations, Nitrogen oxides, Ozone, 

Particulate matter, Regional haze, Reporting and 

recordkeeping requirements, Sulfur dioxide.

List of Subjects in 40 CFR Part 97

Administrative practice and procedure, Air pollution control, 

Electric utilities, Nitrogen oxides, Reporting and 

recordkeeping requirements, Sulfur dioxide. 

___________________________________

Dated: 

___________________________________

Lisa P. Jackson,

Administrator