43136 Federal Register / Vol. 76, No. 139 / Wednesday, July 20, 2011 / Rules and Regulations 

environmental effects, using practicable 

and legally permissible methods, under 

Executive Order 12898. 

K. Petitions for Judicial Review 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by September 19, 2011. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Particulate matter, Reporting and 

recordkeeping requirements. 

Dated: June 28, 2011. 

A. Stanley Meiburg 

Acting Regional Administrator, Region 4. 

40 CFR part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart B—Alabama 

■ 2. Section 52.62 is amended by adding 

paragraph (d), to read as follows: 

§ 52.62 Control strategy: Sulfur oxides and 

particulate matter. 

* * * * * 

(d) Disapproval. EPA is disapproving 

portions of Alabama’s Infrastructure SIP 

for the 2006 24-hour PM2.5 NAAQS 

addressing interstate transport, 

specifically with respect to section 

110(a)(2)(D)(i)(I). 

[FR Doc. 2011–17985 Filed 7–19–11; 8:45 am] 

BILLING CODE 6560–50–P?≤ 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2010–1014–201127; FRL– 

9437–9] 

Approval and Promulgation of Air 

Quality Implementation Plan; 

Kentucky; Disapproval of Interstate 

Transport Submission for the 2006 

24-hour PM2.5 Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is taking final action to 

disapprove the portion of Kentucky’s 

September 8, 2009, submission which 

was intended to meet the requirement to 

address interstate transport for the 2006 

24-hour fine particulate matter (PM2.5) 

national ambient air quality standards 

(NAAQS). Additionally, EPA is 

responding to comments received on 

EPA’s January 26, 2011, proposed 

disapproval of the aforementioned 

portion of Kentucky’s September 8, 

2009, submission. On September 8, 

2009, the Commonwealth of Kentucky, 

through the Kentucky Division for Air 

Quality (KDAQ), provided a letter to 

EPA with certification that Kentucky’s 

state implementation plan (SIP) meets 

the interstate transport requirements 

with regard to the 2006 24-hour PM2.5

NAAQS. Specifically, the interstate 

transport requirements under the Clean 

Air Act (CAA or Act) prohibit a state’s 

emissions from significantly 

contributing to nonattainment or 

interfering with the maintenance of the 

NAAQS in any other state. The effect of 

today’s action will be the promulgation 

of a Federal Implementation Plan (FIP) 

for Kentucky no later than two years 

from the date of disapproval. The 

proposed Transport Rule, when final, is 

the FIP that EPA intends to implement 

for Kentucky. 

DATES: Effective Date: This rule will be 

effective August 19, 2011. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R04–OAR– 

2010–1014. All documents in the docket 

are listed on the http:// 

www.regulations.gov Web site. Although 

listed in the index, some information is 

not publicly available, i.e., Confidential 

Business Information or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically through http:// 

www.regulations.gov or in hard copy at 

the Regulatory Development Section, 

Air Planning Branch, Air, Pesticides and 

Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street, SW., 

Atlanta, Georgia 30303–8960. EPA 

requests that if at all possible, you 

contact the person listed in the FOR

FURTHER INFORMATION CONTACT section to 

schedule your inspection. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 to 4:30 

excluding federal holidays. 

FOR FURTHER INFORMATION CONTACT: For 

information regarding the Kentucky SIP, 

contact Mr. Zuri Farngalo, Regulatory 

Development Section, Air Planning 

Branch, Air, Pesticides and Toxics 

Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street, SW., 

Atlanta, Georgia 30303–8960. Mr. 

Farngalo’s telephone number is (404) 

562–9152; e-mail address: 

farngalo.zuri@epa.gov. For information 

regarding the PM2.5 interstate transport 

requirements under section 

110(a)(2)(D)(i), contact Mr. Steven 

Scofield, Regulatory Development 

Section, at the same address above. Mr. 

Scofield’s telephone number is (404) 

562–9034; e-mail address: 

scofield.steve@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Background 

II. EPA’s Responses to Comments 

III. Final Action 

IV. Statutory and Executive Order Reviews 

I. Background 

Upon promulgation of a new or 

revised NAAQS, sections 110(a)(1) and 

(2) of the CAA require states to address 

basic SIP requirements, including 

emissions inventories, monitoring, and 

modeling to assure attainment and 

maintenance for that NAAQS. On 

December 18, 2006, EPA revised the 24- 

hour average PM2.5 primary and 

secondary NAAQS from 65 micrograms 

per cubic meter (μg/m3) to 35 μg/m3, 

thus states were required to provide 

submissions to address section 110(a)(1) 

and (2) of the CAA (infrastructure SIPs) 

for this revised NAAQS. Kentucky 

provided its infrastructure submission 

for the 2006 PM2.5 NAAQS on 

September 8, 2009. On January 26, 2011, 

EPA proposed to disapprove the portion 

of Kentucky’s September 8, 2009, 

infrastructure submission related to 

interstate transport (i.e., 

110(a)(2)(D)(i)(I)) for the 2006 PM2.5

NAAQS. See 76 FR 4597. A summary of 


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1The rule for the revised PM2.5 NAAQS was 

signed by the Administrator and publically 

disseminated on September 21, 2006. Because EPA 

did not prescribe a shorter period for 110(a) SIP 

submittals, the submittals for the 2006 24-hour 

NAAQS were due on September 21, 2009, three 

years from the September 21, 2006, signature date. 

2See ‘‘Federal Implementation Plans To Reduce 

Interstate Transport of Fine Particulate Matter and 

Ozone; Proposed Rule,’’ 75 FR 45210 (August 2, 

2010). 

3 Kentucky’s September 8, 2009, certification 

letter also explained that Kentucky’s current SIP 

sufficiently addresses other requirements of section 

110(a)(2) for the 2006 24-hour PM2.5 NAAQS; 

however, today’s final rulemaking only relates to 

the section 110(a)(2)(D)(i)(I) requirements for the 

2006 24-hour PM2.5 NAAQS. EPA will address the 

other section 110(a)(2) requirements for the 2006 

24-hour PM2.5 NAAQS in relation to Kentucky’s SIP 

in a rulemaking separate from today’s final 

rulemaking. 

the background for this final action is 

provided below. 

Section 110(a)(2) lists the elements 

that infrastructure SIPs must address, as 

applicable, including section 

110(a)(2)(D)(i), which pertains to 

interstate transport of certain emissions. 

States were required to provide 

submissions to address the applicable 

110(a)(2) infrastructure requirements, 

including section 110(a)(2)(D)(i), by 

September 21, 2009.1

On September 25, 2009, EPA issued a 

guidance entitled ‘‘Guidance on SIP 

Elements Required Under Sections 

110(a)(1) and (2) for the 2006 24-Hour 

Fine Particle (PM2.5) National Ambient 

Air Quality Standards (NAAQS)’’ 

(hereinafter referred to as ‘‘EPA’s 2009 

Guidance’’). EPA developed the EPA’s 

2009 Guidance to make additional 

recommendations to states for making 

submissions to meet the requirements of 

section 110, including 110(a)(2)(D)(i) for 

the revised 2006 24-hour PM2.5 NAAQS. 

As identified in the EPA’s 2009 

Guidance, the ‘‘good neighbor’’ 

provisions in section 110(a)(2)(D)(i) 

require each state to submit a SIP that 

prohibits emissions that adversely affect 

another state in the ways contemplated 

in the CAA. Section 110(a)(2)(D)(i) 

contains four distinct requirements 

related to the impacts of interstate 

transport. Specifically, the SIP must 

prevent sources in the state from 

emitting pollutants in amounts which 

will: (1) Contribute significantly to 

nonattainment of the NAAQS in other 

states; (2) interfere with maintenance of 

the NAAQS in other states; (3) interfere 

with provisions to prevent significant 

deterioration of air quality in other 

states; or (4) interfere with efforts to 

protect visibility in other states. 

In the EPA’s 2009 Guidance, EPA 

explained that submissions from states 

pertaining to the ‘‘significant 

contribution’’ and ‘‘interfere with 

maintenance’’ requirements in section 

110(a)(2)(D)(i)(I) must contain adequate 

provisions to prohibit air pollutant 

emissions from within the state that 

contribute significantly to 

nonattainment or interfere with 

maintenance of the NAAQS in any other 

state. EPA described a number of 

considerations for states for providing 

an adequate demonstration to address 

interstate transport requirements in the 

EPA’s 2009 Guidance. First, EPA noted 

that the state’s submission should 

explain whether or not emissions from 

the state contribute significantly to 

nonattainment or interfere with 

maintenance of the NAAQS in any other 

state and, if so, address the impact. EPA 

stated that the state’s conclusion should 

be supported by an adequate technical 

analysis. Second, EPA recommended 

the various types of information that 

could be relevant to support the state’s 

submission, such as information 

concerning emissions in the state, 

meteorological conditions in the state 

and the potentially impacted states, 

monitored ambient concentrations in 

the state, and air quality modeling. 

Third, EPA explained that states should 

address the ‘‘interfere with 

maintenance’’ requirement 

independently which requires an 

evaluation of impacts on areas of other 

states that are meeting the 2006 24-hour 

PM2.5 NAAQS, not merely areas 

designated nonattainment. Lastly, EPA 

explained that states could not rely on 

the Clean Air Interstate Rule (CAIR) to 

comply with CAA section 110(a)(2)(D)(i) 

requirements for the 2006 24-hour PM2.5

NAAQS because CAIR does not address 

this NAAQS. CAIR, promulgated by 

EPA on May 12, 2005 (see 70 FR 25162), 

required states to reduce emissions of 

sulfur dioxide and nitrogen oxides that 

significantly contribute to, and interfere 

with maintenance of the 1997 PM2.5

NAAQS and/or ozone in any downwind 

state. CAIR was intended to provide 

states covered by the rule with a 

mechanism to satisfy their CAA section 

110(a)(2)(D)(i)(I) obligations to address 

significant contribution to downwind 

nonattainment and interference with 

maintenance in another state with 

respect to the 1997 ozone and PM2.5

NAAQS. Many states adopted the CAIR 

provisions and submitted SIPs to EPA to 

demonstrate compliance with the CAIR 

requirements in satisfaction of their 

110(a)(2)(D)(i)(I) obligations for those 

two pollutants. 

EPA was sued by a number of parties 

on various aspects of CAIR, and on July 

11, 2008, the U.S. Court of Appeals for 

the District of Columbia Circuit (DC 

Circuit or Court) issued its decision to 

vacate and remand both CAIR and the 

associated CAIR FIPs in their entirety. 

North Carolina v. EPA, 531 F.3d 836 

(DC Circuit, July 11, 2008). However, in 

response to EPA’s petition for rehearing, 

the Court issued an order remanding 

CAIR to EPA without vacating either 

CAIR or the CAIR FIPs. North Carolina 

v. EPA, 550 F.3d 1176 (DC Circuit, 

December 23, 2008). The Court thereby 

left CAIR in place in order to 

‘‘temporarily preserve the 

environmental values covered by CAIR’’ 

until EPA replaces it with a rule 

consistent with the Court’s opinion. Id. 

at 1178. The Court directed EPA to 

‘‘remedy CAIR’s flaws’’ consistent with 

its July 11, 2008, opinion, but declined 

to impose a schedule on EPA for 

completing that action. Id. 

In order to address the judicial 

remand of CAIR, EPA has proposed a 

new rule to address interstate transport 

pursuant to section 110(a)(2)(D)(i), the 

‘‘Federal Implementation Plans to 

Reduce Interstate Transport of Fine 

Particulate Matter and Ozone’’ 

(Transport Rule).2 As part of the 

proposed Transport Rule, EPA 

specifically examined the section 

110(a)(2)(D)(i) requirements that 

emissions from sources in a state must 

not ‘‘significantly contribute to 

nonattainment’’ and ‘‘interfere with 

maintenance’’ of the 2006 24-hour PM2.5

NAAQS by other states. The modeling 

performed for the proposed Transport 

Rule shows that Kentucky significantly 

contributes to nonattainment or 

interferes with maintenance of the 2006 

24-hour PM2.5 NAAQS in downwind 

areas. EPA has now completed the 

modeling for the final Transport Rule 

and, as indicated by the technical 

support documents for this action, 

Kentucky in fact contributes to 

downwind nonattainment in another 

state or interferes with maintenance of 

the 2006 24-hour PM2.5 NAAQS in 

another state. 

On September 8, 2009, the 

Commonwealth of Kentucky, through 

KDAQ, provided a letter to EPA 

certifying that the Kentucky SIP meets 

the interstate transport requirements 

with regard to the 2006 24-hour PM2.5

NAAQS.3 Specifically, Kentucky 

certified that its current SIP adequately 

addresses the elements of CAA section 

110(a)(2)(D)(i)(I) for the 2006 24-hour 

PM2.5 NAAQS. CAA section 

110(a)(2)(D)(i)(I) requires that 

implementation plans for each state 

contain adequate provisions to prohibit 

air pollutant emissions from sources 

within a state from significantly 

contributing to nonattainment in or 

interfering with maintenance of the 


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NAAQS (in this case the 2006 24-hour 

PM2.5 NAAQS) in any other state. On 

January 26, 2011, EPA proposed to 

disapprove the portion of Kentucky’s 

September 8, 2009, submission related 

to interstate transport for the 2006 24- 

hour PM2.5 NAAQS because EPA made 

the preliminary determination that 

Kentucky’s September 8, 2009, 

submission does not meet the 

requirements of section 110(a)(2)(D)(i)(I) 

of the CAA for this NAAQS. This action 

is finalizing EPA’s disapproval of 

Kentucky’s September 8, 2009, 

submission with regard to section 

110(a)(2)(D)(i)(I) of the CAA for the 2006 

24-hour PM2.5 NAAQS. See EPA’s 

January 26, 2011, proposed disapproval 

rulemaking at 76 FR 4597 for further 

information on EPA’s rationale for this 

final action. 

II. EPA’s Responses to Comments 

EPA received three sets of adverse 

comments on the January 26, 2011, 

proposed rulemaking to disapprove the 

portion of Kentucky’s September 8, 

2009, infrastructure submission on the 

interstate transport requirements of 

sections 110(a)(2)(D)(i)(I) of the CAA for 

the 2006 24-hour PM2.5 NAAQS. A full 

set of the comments provided by KDAQ, 

the North Carolina Department of 

Environment and Natural Resources, 

and the Georgia Environmental 

Protection Division (hereinafter referred 

to as ‘‘the Commenters’’) are provided in 

the docket for this final action. As a 

general matter, the comments 

overlapped on some issues, and as a 

result, EPA has organized the response 

to comments by issue. In addition, EPA 

acknowledges Georgia’s comments 

regarding SIP processing in general. As 

Georgia is aware, EPA is considering 

improvements to the SIP process and 

appreciates Georgia’s comments in that 

regard. 

For the most part, the Commenters 

oppose EPA’s proposed disapproval 

action for the interstate portion of 

Kentucky’s September 8, 2009, 

infrastructure submission for the 2006 

24-hour PM2.5 NAAQS. The comments 

fall generally into the following 

categories: (1) States’ inability to rely on 

CAIR to satisfy the 110(a)(2)(D)(i)(I) 

requirements for the 2006 24-hour PM2.5

NAAQS; (2) apparent lack of guidance 

from EPA on how states should meet the 

requirements; (3) concerns regarding the 

procedure of taking action to disapprove 

Kentucky’s submittal; (4) 

acknowledgement of states’ efforts and 

air quality conditions; and (5) concerns 

related to the Transport Rule. A 

summary of the comments and EPA’s 

responses are provided below. 

States’ Inability To Rely on CAIR To 

Satisfy the 110(a)(2)(D)(i)(I) 

Requirements for the 2006 24-hour 

PM2.5 NAAQS 

Comment 1: The Commenters express 

concern with EPA’s proposed 

disapproval and assert that states should 

be able to rely on CAIR to address the 

transport requirements in section 

110(a)(2)(D)(i)(I) for the 2006 24-hour 

PM2.5 NAAQS. The Commenters explain 

that the Court left CAIR in place and 

opine that states should be able to rely 

on emissions reductions from CAIR to 

address transport. One Commenter also 

mentions that ‘‘[t]he Court did not 

impose a schedule on EPA for 

completing the Transport Rule; 

therefore, states have no assurances that 

EPA will ever replace the CAIR rule. 

Since there is no guarantee that the 

Transport Rule will be promulgated in 

a timely manner, states cannot rely on 

the reductions in the proposed 

Transport Rule and must rely on the 

CAIR reductions, which are permanent 

and enforceable.’’ 

Response 1: As discussed in EPA’s 

2009 Guidance, states cannot rely on the 

CAIR rule for the submission for the 

2006 24-hour PM2.5 NAAQS because 

CAIR does not address this NAAQS, and 

was never intended to address this 

NAAQS. CAIR was originally put in 

place to address the 1997 8-hour ozone 

and PM2.5 NAAQS. In order to 

adequately address the requirements of 

section 110(a)(2)(D)(i)(I), states can only 

rely on permanent emission reductions 

to address transport for the 2006 24- 

hour PM2.5 NAAQS, and must include 

an appropriate technical demonstration. 

Apparent Lack of Guidance From EPA 

on How States Should Meet the 

Requirements 

Comment 2: Two Commenters note 

that that 110(a)(2) infrastructure SIPs for 

the 24-hour PM2.5 NAAQS were due 

September 21, 2009, but EPA’s guidance 

was not released to the states until 

September 25, 2009. 

Response 2: While EPA’s 2009 

Guidance regarding the 110(a)(2) 

infrastructure SIPs for the 2006 24-hour 

PM2.5 NAAQS was released on 

September 25, 2009, this guidance did 

not establish new requirements beyond 

those already required by section 

110(a)(2)(D)(i)(I) of the CAA. Relevant 

portions of section 110(a)(2) require, as 

follows, ‘‘Each [implementation plan 

submitted by a State under this chapter] 

shall * * * contain adequate 

provisions—(i) prohibiting, consistent 

with the provisions of this subchapter, 

any source or other type of emissions 

activity within the State from emitting 

any air pollutant in amounts which 

will—contribute significantly to 

nonattainment in, or interfere with 

maintenance by, any other State with 

respect to any such national primary or 

secondary ambient air quality standard 

* * *’’ States are statutorily obligated to 

address the requirements of section 

110(a)(2)(D)(i)(I) for the 2006 24-hour 

PM2.5 NAAQS. This above-quoted 

provision provides States with the 

requirement. 

Comment 3: Two Commenters express 

concern about communication in the 

SIP process. The Commenters go on to 

say that ‘‘[e]ven though EPA’s guidance 

was released only a short time later, 

EPA Region 4 gave absolutely no 

indication to its co-regulators that there 

would be a fatal flaw with the 

submittal.’’ The commenter further 

states that, ‘‘it wasn’t until a year later 

that states were informed via an e-mail 

on August 27, 2010, that ‘All Region 4 

states submitted complete infrastructure 

SIPs for the 2006 PM2.5 NAAQS, and our 

intention is to disapprove the 

110(a)(2)(D)(i)(I) portion of those unless 

it is withdrawn by the state.’ ’’ 

Response 3: EPA disagrees with the 

Commenters’ assertion that they were 

initially notified in an August 27, 2010, 

e-mail about EPA’s expectations and 

concerns with states’ submissions 

reliance on CAIR to meet the 

requirements for section 

110(a)(2)(D)(i)(I) for the 2006 24-hour 

PM2.5 NAAQS. As was explained above, 

Kentucky’s obligation stems from the 

CAA. As is EPA’s practice, EPA 

reminded the States on a number of 

occasions of the interstate transport 

obligations in 110(a)(2)(D)(i)(I). In 

addition to the informal reminders (via 

e-mail and teleconferences, among other 

avenues), EPA’s January 2011 proposal 

served as a formal, legal notification and 

provided for a formal opportunity for 

public comment. 

Although EPA reminded states of 

EPA’s expectations and concerns with 

states’ reliance on CAIR to meet the 

requirements for section 

110(a)(2)(D)(i)(I) for the 2006 24-hour 

PM2.5 NAAQS in an August 27, 2010, email, EPA formally notified states of the 

expectations and concerns in the EPA’s 

2009 Guidance. Specifically, EPA noted 

that SIP submissions that relied on 

CAIR for satisfying the 110(a)(2)(D)(i)(I) 

requirements for the 2006 24-hour PM2.5

NAAQS would be inadequate, as CAIR 

did not address this NAAQS. EPA’s 

proposed disapproval of the portion of 

Kentucky’s September 8, 2009, 

submission did not occur until January 

2011, which was over a year after EPA’s 

notification (through the release of the 

EPA’s 2009 Guidance) of any states’ 


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deficiency for meeting the 

110(a)(2)(D)(i)(I) requirement for the 

2006 24-hr PM2.5 NAAQS had that state 

relied on CAIR. Thus, Kentucky had 

notification and an opportunity to 

provide supplemental information 

between the release of EPA’s 2009 

Guidance and EPA’s proposed 

disapproval action in January 2011. 

Comment 4: One Commenter raises 

concerns with EPA treating its 2009 

Guidance as ‘‘binding’’ and suggests that 

this action is contrary to statements 

made by EPA in support of EPA and 

states being ‘‘co-regulators.’’ 

Response 4: EPA disagrees with the 

Commenter’s assertion that the 

proposed disapproval is contrary to EPA 

treating the states as co-regulators. As 

was explained earlier, EPA has regular 

contact with its state co-regulators. With 

regard to the proposed disapproval 

action, EPA corresponded with 

Kentucky regarding the September 8, 

2009, submittal prior to the proposed 

disapproval. In the past several months, 

EPA has corresponded with Kentucky 

on a number of occasions regarding 

other SIP revisions and EPA’s 

consideration of those revisions—as is 

EPA’s typical practice to support the coregulator relationship. 

Further, EPA notes that the January 

26, 2011, proposed disapproval of 

Kentucky’s September 8, 2009, 

submission as it relates to satisfying the 

110(a)(2)(D)(i)(I) requirements for the 

2006 24-hour PM2.5 NAAQS is based on 

EPA’s determination that Kentucky did 

not provide adequate information to 

demonstrate compliance with the 

requirements of section 110(a)(2)(D)(i)(I) 

for the 2006 24-hour PM2.5 NAAQS for 

Kentucky. No new requirements were 

introduced in EPA’s 2009 Guidance. 

This guidance simply provided 

additional clarifications but the CAA 

requirements existed long before 

Kentucky’s September 21, 2009, 

deadline for a SIP submission. 

Comment 5: One Commenter 

mentions that ‘‘EPA has not stated the 

amount of reduction they believe is 

needed to satisfy the transport 

requirements. Not only is this a 

situation where EPA moves the finish 

line (by releasing guidance AFTER the 

due date), the finish line isn’t even 

knowable (because EPA refuses to 

inform the states how much reduction is 

enough to satisfy the requirements). 

EPA seems to say that it has to be 

whatever the final Transport Rule says, 

even though there is no final Transport 

Rule.’’ 

Response 5: EPA disagrees with this 

comment. As was explained earlier, the 

state obligation stems from the CAA 

itself. As co-regulators, EPA makes 

efforts to assist states in submitting 

approvable revisions—and EPA took 

such action with EPA’s 2009 Guidance. 

States had an opportunity to conduct 

their own analyses regarding interstate 

transport. Section 110(a)(2) requires that 

the state’s submission contain adequate 

provisions prohibiting emissions from 

the state that contribute significantly to 

nonattainment of or interfere with 

maintenance of the NAAQS in any other 

state. In order to ensure compliance 

with the CAA’s mandate of ‘‘adequate’’ 

provisions, the state’s SIP revision must 

be supported by an adequate technical 

analysis, including, but not limited to, 

information concerning emissions in the 

state, meteorological conditions in the 

state and the potentially impacted 

states, monitored ambient 

concentrations in the state and the 

potentially impacted states, the distance 

to the nearest area that is not attaining 

the NAAQS in another state, and air 

quality modeling. EPA appreciates that 

Kentucky has initiated the process of 

such an analysis (which is included in 

Kentucky’s comment letter). 

Comment 6: One Commenter notes 

EPA’s statement in the January 26, 2011, 

proposed disapproval where the Agency 

states: ‘‘* * * without an adequate 

technical analysis EPA does not believe 

that states can sufficiently address the 

section 110(a)(2)(D)(i)(I) requirement for 

the 2006 PM2.5 NAAQS.’’ The 

Commenter mentions that they, and 

possibly other states, were precluded 

from providing the necessary technical 

analysis by EPA because EPA did not 

release the guidance until after the SIP 

submission deadline. Further, the 

Commenter notes that EPA did not 

provide specific criteria for the 

technical analysis in the EPA’s 2009 

Guidance, and mentions that ‘‘[h]ad 

EPA provided adequate criteria for an 

approvable SIP in a timely manner, it is 

likely that [the state] would have been 

able to submit an approvable SIP by the 

statutory deadline.’’ The Commenter 

included a technical analysis as part of 

their comments on the proposal. 

Response 6: EPA does not agree with 

the Commenter’s assertions. As was 

explained earlier, the SIP submission 

requirement is identified in the CAA. In 

addition, States were alerted that a 

technical analysis that involved 

modeling and permanent, enforceable 

emission reductions could be used to 

make an adequate demonstration to 

satisfy the 110(a)(2)(D)(i)(I) requirement 

for the 1997 PM2.5 and ozone NAAQS 

when EPA promulgated CAIR in 2005. 

Due to the legal status of CAIR, states 

relying on CAIR as permanent were 

taking a risk given EPA’s proposed 

Transport Rule and the court decision 

on CAIR. Further, states were officially 

informed that the 110(a)(2)(D)(i)(I) 

requirement for the 2006 24-hour PM2.5

NAAQS could not be satisfied by 

reliance on CAIR (since that rule did not 

consider the 2006 24-hour PM2.5

NAAQS) when EPA released EPA’s 

2009 Guidance. The submittal by 

Kentucky relied on CAIR and it did not 

include an adequate technical 

analysis—despite EPA’s efforts to alert 

states that mere reliance on CAIR, on its 

own, would not meet the CAA 

requirements. 

Consistent with section 110 of the 

CAA and implementing regulations at 

40 CFR part 51, and as a general matter, 

‘‘adequate technical analyses’’ are a 

cornerstone of ensuring that SIP 

revisions are approvable. EPA has 

addressed the timing of information in 

previous comments, but to underscore 

that point, EPA alerted states formally 

upon the release of the EPA’s 2009 

Guidance that CAIR could not be used 

to meet the 110(a)(2)(D)(i)(I) 

requirement for the 2006 PM2.5 NAAQS. 

In addition, there are formal SIP 

revision requirements described in 40 

CFR part 51, subpart F. EPA does not 

agree that Kentucky’s comments on the 

January 2011 disapproval proposal may 

be considered a ‘‘SIP revision;’’ 

nonetheless, EPA did review the 

comments as was described above. 

Further information regarding the path 

forward following today’s action is 

described below. 

Upon disapproval of Kentucky’s 

submittal, EPA has a legal obligation, 

pursuant to the Act, to promulgate a 

FIP. Section 110(a)(1) of the Act requires 

states to submit SIPs that meet certain 

requirements within three years of 

promulgation of a NAAQS. These SIPs 

are required to contain, among other 

things, adequate provisions 

‘‘prohibiting, consistent with the 

provisions of this subchapter, any 

source or other type of emissions 

activity within the state from emitting 

any air pollutant in amounts which 

will—(I) contribute significantly to 

nonattainment in, or interfere with 

maintenance by, any other state with 

respect to any such national primary or 

secondary ambient air quality 

standard.’’ Section 110(a)(1) gives the 

Administrator authority to prescribe a 

period shorter than three years for the 

states to adopt and submit such SIPs, 

but does not give the Administrator 

authority to lengthen the time allowed 

for submission. 

Section 110(c)(1) of the Act, in turn, 

requires EPA to promulgate FIPs if EPA 

has found that the state has failed to 

make a required submission or if EPA 

has disapproved a state submission our 


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found it to be incomplete. Specifically, 

section 110(c)(1) requires EPA to 

promulgate a FIP within two years after 

the Administrator ‘‘(A) finds that a state 

has failed to make a required 

submission or finds that the plan or 

plan revision submitted by the state 

does not satisfy the minimum criteria 

established under subsection (k)(1)(A) of 

this section or (B) disapproves a state 

implementation plan submission in 

whole or in part.’’ The Act uses 

mandatory language, finding that EPA 

shall promulgate a FIPs at any time 

within 2 years after the actions 

identified 110(c)(1)(A) or 110(c)(1)(B) 

have occurred. EPA’s legal obligation to 

promulgate FIPs arises when those 

actions occur without regard to the 

underlying reason for the underlying 

state SIP deficiency. The obligation to 

promulgate a FIP must be discharged by 

EPA unless two conditions are met: (1) 

The state corrects the deficiency; and (2) 

the Administrator approves the plan or 

plan revision, before the Administrator 

promulgates the FIP. 

Under this statutory scheme, EPA has 

authority and an obligation to 

promulgate a FIP to correct a SIP 

deficiency if the actions identified in 

section 110(c)(1)(A) or (B) have been 

taken, and the two conditions identified 

in 110(c)(1) have not been met. The 

question of whether EPA has authority 

to promulgate any particular FIP, 

therefore, must be considered on a state 

specific basis. 

EPA disagrees with the Commenter’s 

suggestion that the rule is inconsistent 

with the CAA because it does not give 

states time to develop, submit and 

receive EPA approval of SIPs before the 

FIP goes into effect. Section 110(a)(2) 

calls on states to submit SIPs that 

contain adequate provisions prohibiting 

the emissions proscribed by section 

110(a)(2)(D)(i)(I). However, when EPA 

has not received such SIP submission or 

has disapproved a SIP submission, it 

has an obligation created by section 

110(c)(1) to promulgate a FIP that meets 

the requirements of section 

110(a)(2)(D)(i)(I). EPA does not believe it 

has authority to adjust the deadlines 

established in the Act in order to give 

states additional time, after 

promulgation of the Transport Rule, to 

submit SIPs that comply with section 

110(a)(2)(D)(i)(I). EPA does not believe it 

has authority to alter the statutory 

requirement that it promulgate FIPs 

within two years of making a finding of 

failure to submit. EPA sought to 

discharge this duty with respect to the 

states covered by CAIR for the PM2.5

NAAQS by promulgating CAIR; 

however, the Court found that rule 

unlawful and not sufficiently related to 

the statutory mandate of section 

110(a)(2)(D)(i)(I). For this reason, EPA 

does not believe it could argue that the 

CAIR FIPs completely discharged its 

duty to promulgate FIPs with respect to 

the states whose section 

110(a)(2)(D)(i)(I) SIPs are disapproved. 

EPA is following the SIP process 

established in the statute. The 110(a) 

SIPs for the 2006 PM2.5 standard were 

due in 2009. In each case, states were 

given the full 3 years to meet the 

requirement. The Transport Rule 

provides the FIP to fulfill the 

requirement that was unmet by the 

states through SIPs. EPA is required to 

promulgate a FIP within 2 years of a 

state’s failure to have an approved SIP. 

States were in fact given the first chance 

to fulfill the requirement of Section 

100(a)(2)(D)(i)(I). EPA’s action is 

subsequent to the State’s opportunity to 

first fulfill the requirement. 

EPA has made every attempt to 

smooth the transition between the 

requirements of CAIR and those of the 

forthcoming Transport Rule. For future 

requirements, EPA will also make every 

effort to address transition issues. 

However, EPA cannot ignore its 

statutory obligations and therefore 

cannot ensure that no new requirements 

will be placed on the sources being 

regulated by this action. Every time a 

NAAQS is revised, there is a statutory 

obligation for states to submit SIPs to 

address certain CAA requirements. If 

states fail to meet the deadlines or 

submit incomplete or inadequate SIPs, 

EPA must act to ensure that the 

requirements are put into place. 

Even though EPA is issuing a FIP, the 

State still has the opportunity to submit 

a SIP that can tailor requirements to the 

specific needs and concerns of the State 

in order to meet the applicable state 

budgets. Prior to this action, states had 

ample time under the provisions of the 

CAA to develop and submit approvable 

SIPs and did not. No state affected by 

the Transport Rule has submitted a SIP 

to replace the emission reductions that 

were required by CAIR, despite the 

North Carolina opinion issued in 

December 2008 that clearly said CAIR 

did not adequately address 

110(a)(2)(D)(i)(I). While the remand left 

CAIR in place and states and sources 

were required to continue to comply 

with it, states had the opportunity to 

develop replacement measures to ensure 

that 110(a)(2)(D)(i)(I) components of 

their SIPs would continue to be fulfilled 

in the future. 

Objection to the Use of Disapproval 

Actions for States’ Implementation 

Plans 

Comment 7: Two Commenters express 

concerns about EPA’s proposed 

disapproval and indicate that EPA had 

an obligation to use section 110(k)(5) of 

the CAA. One Commenter states: ‘‘EPA 

continues to be resistant to exploring a 

legislative approach to fixing some of 

the SIP issues, yet the correct process 

under the existing Clean Air Act to 

appropriately address this issue is not 

being used.’’ The Commenter goes on to 

state: ‘‘Section 110(k) requires that 

when EPA finds a plan to be inadequate, 

EPA shall (1) require the state to revise 

the plan, (2) notify the state of the 

inadequacy, and (3) may establish 

reasonable deadlines not to exceed 18 

months.’’ Additionally, the Commenter 

mentions that in their opinion, ‘‘The 

proposed disapproval completely 

ignores #1 and #3 and only partially 

satisfies #2. Regarding #2, the EPA 

proposal simply states EPA’s position 

that the SIP is inadequate, but fails to 

notify us ‘of the inadequacy.’ ’’ The 

Commenter asserts that ‘‘* * * EPA still 

has failed to provide any specificity on 

what is required of a state to submit an 

approvable SIP,’’ and mentions that 

‘‘These Clean Air Act requirements are 

not discretionary, and that ‘EPA must 

comply with the provisions of Section 

110(k)(5) by providing a reasonable 

period of time to allow [the state] to 

satisfy the inadequacy and sufficient 

and timely instructions on what is 

required to revise the plan instead of 

relying on a theoretical FIP as the sole 

remedy.’ ’’ The Commenter concludes 

by stating that ‘‘EPA may not take final 

action on this proposal until it complies 

with Section 110(k)(5) of the Clean Air 

Act.’’ 

Response 7: The issues raised in this 

comment are also addressed by 

Response 6, above. To further clarify 

what is included in Response 6, 

Kentucky’s September 8, 2009, 

submission relating to section 

110(a)(2)(D)(i)(I) for the 2006 PM2.5

NAAQS is being disapproved pursuant 

to sections 110(k)(2) and (3) of the CAA, 

not section 110(k)(5). Section 110(k)(5) 

is applicable to SIPs that have been 

federally-approved, and are 

subsequently found to be substantially 

inadequate. This is not the case for 

Kentucky’s September 8, 2009, 

submission relating to section 

110(a)(2)(D)(i)(I) for the 2006 PM2.5

NAAQS as the September 8, 2009, 

submission was provided to EPA for a 

new requirement that was triggered by 

the promulgation of the 24-hour PM2.5

NAAQS in 2006. EPA is required under 


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section 110(k)(3) to act upon a state 

submittal with an approval or 

disapproval, within the time period 

designated under section 110(k)(2). 

With this action, EPA is disapproving 

Kentucky’s September 8, 2009, 

submission relating to section 

110(a)(2)(D)(i)(I), because EPA has made 

the determination that the Kentucky SIP 

does not satisfy these requirements for 

the 2006 PM2.5 NAAQS. Kentucky’s 

submission is inadequate for its failure 

to meet the statutory requirements of 

110(a)(2)(D)(i)(I) as noted above. The 

Commonwealth can correct the 

deficiency by submitting a transport SIP 

that meets the provisions of the 

forthcoming Transport Rule or 

otherwise eliminates significant 

contribution and interference with 

maintenance. See Response to Comment 

6. 

Comment 8: One Commenter 

expresses concern about EPA’s 

statement in the January 26, 2011, 

proposed disapprovals regarding the 

Agency not taking action on some 

elements of the states’ 2006 24-hour 

PM2.5 infrastructure submissions, and 

notes the Agency’s statutory timeframe 

for taking action on SIP submissions. 

Specifically, the Commenter cites the 

following statement from EPA’s January 

26, 2011, proposed rule: ‘‘[t]herefore, 

EPA is proposing to disapprove those 

provisions which relate to the 

110(a)(2)(D)(i)(I) demonstration and to 

take no action on the remainder of the 

demonstration at this time.’’ The 

Commenter mentions that EPA is 

‘‘clearly in violation of Clean Air Act 

Section 110(k)(2)’’ by not taking action 

on the remainder of the states’ 

submissions. 

Response 8: In this action, EPA is 

disapproving certain elements of the 

State’s submission related to the 

requirements under section 

110(a)(2)(D)(i)(I). EPA has also 

determined that these elements are 

severable from the rest of the 

submission. Comments on elements that 

are not being addressed here are not 

relevant to this action. As noted herein, 

EPA intends to act on those elements in 

a subsequent action. See Response to 

Comment 6 for additional information. 

Comment 9: One Commenter 

indicates that EPA could use section 

110(k)(4) to conditionally approve the 

states’ implementation plans for the 

transport requirements related to the 

2006 24-hour PM2.5 NAAQS in 

anticipation of the promulgation of the 

final Transport Rule, ‘‘[a]ssuming EPA 

adequately addresses modeling and 

emissions inventory concerns raised 

during the comment period * * *’’ 

Response 9: EPA does not agree that 

the use of 110(k)(4) for a conditional 

approval is appropriate in this 

circumstance. Conditional approvals 

may be used to approve a plan revision 

based on a written commitment of the 

State to adopt specific enforceable 

measures by a date certain, but not later 

than 1 year after the date of approval of 

the plan revision. If the State does not 

adopt specific enforceable measures 

within a year, the conditional approval 

automatically converts to a disapproval. 

The forthcoming Transport Rule is an 

action that is being promulgated from 

EPA and not the State, so it is unclear 

what ‘‘condition’’ the State would be 

responsible for satisfying by relying on 

the final promulgation of the Transport 

Rule. Further, as the Commenter 

implies, use of 110(k)(4) is optional. See 

Response to Comment 6 for additional 

information. 

Acknowledgement of States’ Efforts and 

Air Quality Conditions 

Comment 10: Two Commenters 

mention innovative air pollution control 

strategies that states have implemented 

to reduce emissions, and seem to 

indicate that the adoption of those 

strategies, in-and-of itself, complies 

with the interstate transport provisions 

of section 110(a)(2)(D)(i)(I) for the 2006 

24-hour PM2.5 NAAQS. The 

Commenters opine that state laws and 

rules have resulted in enormous 

reductions of pollutants that are key 

pollutants to interstate transport. 

Response 10: EPA agrees that states 

have implemented innovative air 

pollution control strategies that have 

provided significant reductions in 

emissions, and the Agency commends 

states for their efforts. However, today’s 

action relates to whether Kentucky has 

provided an adequate technical analysis 

and emissions reductions to show 

compliance with the 110(a)(2)(D)(i)(I) 

requirements for the 2006 24-hour PM2.5

NAAQS for Kentucky. It is EPA’s final 

determination that Kentucky’s 

September 8, 2009, submission does not 

provide an adequate technical analysis 

and emissions reductions for this 

determination and thus EPA is 

disapproving the portion of Kentucky’s 

September 8, 2009, submission as it 

relates to the 110(a)(2)(D)(i)(I) 

requirements for the 2006 24-hour PM2.5

NAAQS for Kentucky. 

Concerns Related to the Transport Rule 

Comment 11: Two Commenters 

expresses concern regarding EPA’s 

statement in the January 26, 2011, 

proposed disapproval regarding the 

modeling used to support the proposed 

Transport Rule, and the findings in 

relation to whether states significantly 

contribute to nonattainment or interfere 

with maintenance of the 2006 24-hour 

PM2.5 NAAQS in downwind areas. The 

Commenters state that ‘‘based on 2007– 

2009 monitoring data, all of these areas 

are currently meeting the 2006 24-hour 

PM2.5 NAAQS’’ and express concern 

that EPA did not note the area’s status 

with regard to the 2006 24-hour PM2.5

NAAQS in the proposal. The 

Commenters go on to say ‘‘we noted in 

our official comments on the proposed 

Transport Rule, EPA had numerous 

errors in the modeling inputs and failed 

to ensure that the model performance 

was acceptable. This may explain the 

disparity between EPA’s modeling 

results and the real world monitors.’’ 

Response 11: Today’s action relates to 

whether the Commonwealth provided 

an adequate technical analysis and 

emissions reductions to show 

compliance with the 110(a)(2)(D)(i)(I) 

requirements for the 2006 24-hour PM2.5

NAAQS for Kentucky, and is not based 

on the attainment status of Kentucky 

areas. Kentucky did not provide an 

adequate technical analysis to EPA to 

demonstrate compliance with the 

110(a)(2)(D)(i)(I) requirements for the 

2006 24-hour PM2.5 NAAQS. With 

regard to the Commenters’ concern 

about the forthcoming Transport Rule, 

EPA notes that the Agency received 

numerous comments on the proposed 

Transport Rule and is considering those 

comments as it works toward 

promulgation of a final Transport Rule. 

All comments on the Transport Rule 

will be addressed in that context. 

Comment 12: Both Commenters assert 

that EPA’s proposed finding of 

significant contribution for the proposed 

Transport Rule is based on an 

inaccurate emissions inventory, fails to 

take into account all of the reductions 

required by the state rules already in 

effect, and contains numerous other 

errors that only compound these 

problems. 

Response 12: EPA received numerous 

comments on the proposed Transport 

Rule and is considering those comments 

as it works toward promulgation of a 

final Transport Rule. All comments on 

the Transport Rule will be addressed in 

that context. 

III. Final Action 

EPA is taking final action to 

disapprove the portion of the 

Commonwealth of Kentucky’s 

September 8, 2009, submission, relating 

to section 110(a)(2)(D)(i)(I), because EPA 

has made the determination that the 

Kentucky SIP does not satisfy the 

requirements for the 2006 24-hour PM2.5

NAAQS. Although EPA is taking final 


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action to disapprove the portion of 

Kentucky’s September 8, 2009, 

submission relating to section 

110(a)(2)(D)(i)(I), EPA acknowledges the 

Commonwealth’s efforts to address this 

requirement in its September 8, 2009, 

submission. Unfortunately, the 

submittal relies on CAIR and without an 

adequate technical analysis EPA does 

not believe that states can adequately 

address the section 110(a)(2)(D)(i)(I) 

requirement for the 2006 24-hour PM2.5

NAAQS. The purpose of the Transport 

Rule that EPA is developing and has 

proposed is to respond to the remand of 

CAIR by the Court and address the 

section 110(a)(2)(D)(i)(I) requirements 

for the 2006 24-hour PM2.5 NAAQS for 

the affected states. In today’s action, 

EPA is not taking any disapproval 

action on the remaining elements of the 

submission, including other section 

110(a)(2) infrastructure elements, and 

specifically the section 110(a)(2)(D)(i)(II) 

portion regarding interference with 

measures required in the applicable SIP 

for another state designed to prevent 

significant deterioration of air quality 

and protect visibility but instead will 

act on those provisions in a separate 

rulemaking. 

Under section 179(a) of the CAA, final 

disapproval of a submittal that 

addresses a requirement of a Part D Plan 

(42 U.S.C. sections 7501–7515) or is 

required in response to a finding of 

substantial inadequacy as described in 

section 7410(k)(5) (SIP call) starts a 

sanctions clock. Section 

110(a)(2)(D)(i)(I) provisions (the 

provisions being disapproved in today’s 

notice) were not submitted to meet 

requirements for Part D, and therefore, 

no sanctions will be triggered. This final 

action triggers the requirement under 

section 110(c) that EPA promulgate a 

FIP no later than 2 years from the date 

of the disapproval unless the State 

corrects the deficiency, and the 

Administrator approves the plan or plan 

revision before the Administrator 

promulgates such FIP. The proposed 

Transport Rule, when final, is the FIP 

that EPA intends to implement to satisfy 

the 110(a)(2)(D)(i)(I) requirement for 

Kentucky for the 2006 24-hr PM2.5

NAAQS. 

IV. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to act on state law as 

meeting federal requirements and does 

not impose additional requirements 

beyond those imposed by state law. 

A. Executive Order 12866, Regulatory 

Planning and Review 

This action is not a ‘‘significant 

regulatory action’’ under the terms of 

Executive Order 12866 (58 FR 51735, 

October 4, 1993) and is therefore not 

subject to review under the Executive 

Order. 

B. Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq., because this 

SIP disapproval under section 110 and 

subchapter I, part D of the CAA will not 

in-and-of itself create any new 

information collection burdens but 

simply disapproves certain state 

requirements for inclusion into the SIP. 

Burden is defined at 5 CFR 1320.3(b). 

C. Regulatory Flexibility Act (RFA) 

The RFA generally requires an agency 

to conduct a regulatory flexibility 

analysis of any rule subject to notice 

and comment rulemaking requirements 

unless the agency certifies that the rule 

will not have a significant economic 

impact on a substantial number of small 

entities. Small entities include small 

businesses, small not-for-profit 

enterprises, and small governmental 

jurisdictions. For purposes of assessing 

the impacts of today’s rule on small 

entities, small entity is defined as: (1) A 

small business as defined by the Small 

Business Administration’s regulations at 

13 CFR 121.201; (2) a small 

governmental jurisdiction that is a 

government of a city, county, town, 

school district or special district with a 

population of less than 50,000; and (3) 

a small organization that is any not-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of today’s final rule on small 

entities, I certify that this action will not 

have a significant impact on a 

substantial number of small entities. 

This rule does not impose any 

requirements or create impacts on small 

entities. This SIP disapproval under 

section 110 and subchapter I, part D of 

the CAA will not in-and-of itself create 

any new requirements but simply 

disapproves certain state requirements 

for inclusion into the SIP. Accordingly, 

it affords no opportunity for EPA to 

fashion for small entities less 

burdensome compliance or reporting 

requirements or timetables or 

exemptions from all or part of the rule. 

The fact that the CAA prescribes that 

various consequences (e.g., higher offset 

requirements) may or will flow from 

this disapproval does not mean that 

EPA either can or must conduct a 

regulatory flexibility analysis for this 

action. Therefore, this action will not 

have a significant economic impact on 

a substantial number of small entities. 

EPA continues to be interested in the 

potential impacts of this proposed rule 

on small entities and welcome 

comments on issues related to such 

impacts. 

D. Unfunded Mandates Reform Act 

This action contains no Federal 

mandates under the provisions of Title 

II of the Unfunded Mandates Reform 

Act of 1995 (UMRA), 2 U.S.C. 1531– 

1538 for state, local, or tribal 

governments or the private sector. EPA 

has determined that the disapproval 

action does not include a federal 

mandate that may result in estimated 

costs of $100 million or more to either 

state, local, or tribal governments in the 

aggregate, or to the private sector. This 

action disapproves pre-existing 

requirements under state or local law, 

and imposes no new requirements. 

Accordingly, no additional costs to 

state, local, or tribal governments, or to 

the private sector, result from this 

action. 

E. Executive Order 13132, Federalism 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the states, on the relationship 

between the national government and 

the states, or on the distribution of 

power and responsibilities among the 

various levels of government.’’ 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132, because it 

merely disapproves certain state 

requirements for inclusion into the SIP 

and does not alter the relationship or 

the distribution of power and 

responsibilities established in the CAA. 

Thus, Executive Order 13132 does not 

apply to this action. 


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F. Executive Order 13175, Coordination 

With Indian Tribal Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000), because the SIP EPA is 

disapproving would not apply in Indian 

country located in the State, and EPA 

notes that it will not impose substantial 

direct costs on tribal governments or 

preempt tribal law. Thus, Executive 

Order 13175 does not apply to this 

action. 

G. Executive Order 13045, Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets Executive Order 13045 

(62 FR 19885, April 23, 1997) as 

applying only to those regulatory 

actions that concern health or safety 

risks, such that the analysis required 

under section 5–501 of the Executive 

Order has the potential to influence the 

regulation. This action is not subject to 

Executive Order 13045 because it 

because it is not an economically 

significant regulatory action based on 

health or safety risks subject to 

Executive Order 13045 (62 FR 19885, 

April 23, 1997). This SIP disapproval 

under section 110 and subchapter I, part 

D of the CAA will not in-and-of itself 

create any new regulations but simply 

disapproves certain state requirements 

for inclusion into the SIP. 

H. Executive Order 13211, Actions That 

Significantly Affect Energy Supply, 

Distribution or Use 

This action is not subject to Executive 

Order 13211 (66 FR 28355, May 22, 

2001) because it is not a significant 

regulatory action under Executive Order 

12866. 

I. National Technology Transfer and 

Advancement Act (NTTAA) 

Section 12(d) of the NTTAA, Public 

Law 104–113, section 12(d) (15 U.S.C. 

272 note) directs EPA to use voluntary 

consensus standards in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures, and 

business practices) that are developed or 

adopted by voluntary consensus 

standards bodies. NTTAA directs EPA 

to provide Congress, through the Office 

of Management and Budget, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. EPA 

believes that this action is not subject to 

requirements of Section 12(d) of 

NTTAA because application of those 

requirements would be inconsistent 

with the CAA. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629, 

February 16, 1994) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA lacks the discretionary authority 

to address environmental justice in this 

proposed action. In reviewing SIP 

submissions, EPA’s role is to approve or 

disapprove state choices, based on the 

criteria of the CAA. Accordingly, this 

action merely proposes to disapprove 

certain state requirements for inclusion 

into the SIP under section 110 and 

subchapter I, part D of the CAA and will 

not in-and-of itself create any new 

requirements. Accordingly, it does not 

provide EPA with the discretionary 

authority to address, as appropriate, 

disproportionate human health or 

environmental effects, using practicable 

and legally permissible methods, under 

Executive Order 12898. 

K. Petitions for Judicial Review 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by September 19, 2011. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Particulate matter, Reporting and 

recordkeeping requirements. 

Dated: June 28, 2011. 

A. Stanley Meiburg, 

Acting Regional Administrator, Region 4. 

40 CFR part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart S—Kentucky 

■ 2. Section 52.933 is amended by 

adding paragraph (c), to read as follows: 

§ 52.933 Control strategy: Sulfur oxides 

and particulate matter. 

* * * * * 

(c) Disapproval. EPA is disapproving 

portions of Kentucky’s Infrastructure 

SIP for the 2006 24-hour PM2.5 NAAQS 

addressing interstate transport, 

specifically with respect to section 

110(a)(2)(D)(i)(I). 

[FR Doc. 2011–17996 Filed 7–19–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R07–OAR–2011–0279; FRL–9436–1] 

Approval and Promulgation of Air 

Quality Implementation Plan; Kansas; 

Final Disapproval of Interstate 

Transport State Implementation Plan 

Revision for the 2006 24-hour PM2.5

NAAQS 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: Pursuant to our authority 

under the Clean Air Act (CAA or Act), 

the Environmental Protection Agency 

(EPA) is taking final action to 

disapprove the portion of the 

‘‘Infrastructure’’ State Implementation 

Plan (SIP) submittal from the State of 

Kansas intended to address the CAA 

section relating to the ‘‘interstate 

transport’’ requirements for the 2006 24- 

hour fine particle (PM2.5) National 

Ambient Air Quality Standards 

(NAAQS) that prohibit a state from 

significantly contributing to 

nonattainment or interfering with 

maintenance of the NAAQS in any other 

state. This final action to disapprove the 

‘‘interstate transport’’ portion of the 

Kansas SIP submittal, received by EPA 

on April 12, 2010, only relates to those 

provisions and does not address the 

other portions of Kansas’ April 12, 2010, 

submission. The rationale for this action 

and additional detail on this 

disapproval was described in EPA’s 

proposed rulemaking published in the 

Federal Register on the March 18, 2011. 

The effect of this action will be the 


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