[Federal Register Volume 89, Number 1 (Tuesday, January 2, 2024)]
[Proposed Rules]
[Pages 178-193]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-28384]



[[Page 177]]

Vol. 89

Tuesday,

No. 1

January 2, 2024

Part III





Environmental Protection Agency





-----------------------------------------------------------------------





40 CFR Part 52





Air Plan Disapproval; Kansas; Regional Haze; Proposed Rule

Federal Register / Vol. 89 , No. 1 / Tuesday, January 2, 2024 / 
Proposed Rules

[[Page 178]]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R07-OAR-2023-0582; FRL-11576-01-R7]


Air Plan Disapproval; Kansas; Regional Haze

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
disapprove a revision to Kansas's State Implementation Plan (SIP) 
submitted on July 28, 2021, to satisfy applicable requirements under 
the Clean Air Act (CAA) and EPA's Regional Haze Rule (RHR) for the 
program's second planning period. As required by section 169A of the 
Clean Air Act, the federal Regional Haze Rule calls for state and 
federal agencies to work together to improve visibility, including 
Regional Haze, in 156 national parks and wilderness areas. The rule 
requires the states, in coordination with the EPA, the National Park 
Service (NPS), U.S. Fish and Wildlife Service (FWS), the U.S. Forest 
Service (FS), and other interested parties, to develop and implement 
air quality protection plans in which states revise their long-term 
strategies (LTS) for making reasonable progress towards the national 
goal of preventing any future, and remedying any existing, 
anthropogenic impairment of visibility in these mandatory Class I 
Federal Areas. Disapproval does not start a mandatory sanctions clock.

DATES: Comments must be received on or before February 1, 2024.

ADDRESSES: You may send comments, identified by Docket ID No. EPA-R07-
OAR-2023-0582 to https://www.regulations.gov. Follow the online 
instructions for submitting comments.
    Instructions: All submissions received must include the Docket ID 
No. for this rulemaking. Comments received will be posted without 
change to https://www.regulations.gov/, including any personal 
information provided. For detailed instructions on sending comments and 
additional information on the rulemaking process, see the ``Written 
Comments'' heading of the SUPPLEMENTARY INFORMATION section of this 
document.

FOR FURTHER INFORMATION CONTACT: Jed D. Wolkins, Environmental 
Protection Agency, Region 7 Office, Air Permitting and Planning Branch, 
11201 Renner Boulevard, Lenexa, Kansas 66219; telephone number: (913) 
551-7588; email address: <a href="/cdn-cgi/l/email-protection#0e7961626567607d20646b6a4e6b7e6f20696178"><span class="__cf_email__" data-cfemail="01766e6d6a686f722f6b6465416471602f666e77">[email protected]</span></a>.

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

Table of Contents

I. Written Comments
II. What is being addressed in this document?
III. Background and Requirements for Regional Haze Plans
    A. Regional Haze Background
    B. Roles of Agencies in Addressing Regional Haze
IV. Requirements for Regional Haze Plans for the Second 
Implementation Period
    A. Identification of Class I Areas
    B. Calculations of Baseline, Current, and Natural Visibility 
Conditions; Progress to Date; and the Uniform Rate of Progress
    C. Long-Term Strategy for Regional Haze
    D. Reasonable Progress Goals
    E. Monitoring Strategy and Other State Implementation Plan 
Requirements
    F. Requirements for Periodic Reports Describing Progress Towards 
the Reasonable Progress Goals
    G. Requirements for State and Federal Land Manager Coordination
V. The EPA's Evaluation of Kansas's Regional Haze Submission for the 
Second Implementation Period
    A. Background on Kansas's First Implementation Period SIP 
Submission
    B. Kansas's Second Implementation Period SIP Submission and the 
EPA's Evaluation
    C. Identification of Class I Areas
    D. Regional Haze Rule Provisions That Do Not Apply to States 
With No Class I Areas
    E. Calculations of Baseline, Current, and Natural Visibility 
Conditions; Progress to Date; and the Uniform Rate of Progress
    F. Long-Term Strategy for Regional Haze
    a. Four-Factor Analysis
    b. Additional Long-Term Strategy Requirements
    G. Reasonable Progress Goals
    H. Monitoring Strategy and Other Implementation Plan 
Requirements
    I. Requirements for Periodic Reports Describing Progress Towards 
the Reasonable Progress Goals
    J. Requirements for State and Federal Land Manager Coordination
VI. What action is the EPA taking?
VII. Statutory and Executive Order Reviews

I. Written Comments

    Submit your comments, identified by Docket ID No. EPA-R07-OAR-2023-
0582, at https://www.regulations.gov. Once submitted, comments cannot 
be edited or removed from Regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e., on the web, cloud, or other 
file sharing system). For additional submission methods, the full EPA 
public comment policy, information about CBI or multimedia submissions, 
and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

II. What is being addressed in this document?

    The EPA is proposing to disapprove Kansas's Regional Haze plan for 
the second planning period. As required by section 169A of the CAA, the 
federal RHR calls for state and federal agencies to work together to 
improve visibility in 156 national parks and wilderness areas. The rule 
requires the states, in coordination with the EPA, the NPS, FWS, the 
FS, and other interested parties, to develop and implement air quality 
protection plans to reduce the pollution that causes visibility 
impairment in mandatory Class I Federal areas. Visibility impairing 
pollutants include fine and coarse particulate matter (PM) (e.g., 
sulfates, nitrates, organic carbon, elemental carbon, and soil dust) 
and their precursors (e.g., sulfur dioxide (SO<INF>2</INF>), oxides of 
nitrogen (NO<INF>X</INF>), and, in some cases, volatile organic 
compounds (VOC) and ammonia (NH<INF>3</INF>)). As discussed in further 
detail below, the EPA is proposing to find that Kansas has submitted a 
Regional Haze plan that does not meet the Regional Haze requirements 
for the second planning period. The State's submission can be found in 
the docket for this action.

III. Background and Requirements for Regional Haze Plans

A. Regional Haze Background

    In the 1977 CAA Amendments, Congress created a program for 
protecting visibility in the nation's mandatory Class I Federal areas, 
which include certain national parks and wilderness areas.\1\ CAA 
section 169A. The CAA establishes as a national goal the ``prevention 
of any future, and the remedying of any existing, impairment of 
visibility in mandatory class I Federal

[[Page 179]]

areas which impairment results from manmade air pollution.'' CAA 
section 169A(a)(1). The CAA further directs the EPA to promulgate 
regulations to assure reasonable progress toward meeting this national 
goal. CAA section 169A(a)(4). On December 2, 1980, the EPA promulgated 
regulations to address visibility impairment in mandatory Class I 
Federal Areas (hereinafter referred to as ``Class I Areas'') that is 
``reasonably attributable'' to a single source or small group of 
sources. (45 FR 80084, December 2, 1980). These regulations, codified 
at 40 CFR 51.300 through 51.307, represented the first phase of the 
EPA's efforts to address visibility impairment. In 1990, Congress added 
section 169B to the CAA to further address visibility impairment, 
specifically, impairment from Regional Haze. CAA 169B. The EPA 
promulgated the RHR, codified at 40 CFR 51.308,\2\ on July 1, 1999. (64 
FR 35714, July 1, 1999). These Regional Haze regulations are a central 
component of the EPA's comprehensive visibility protection program for 
Class I Areas.
---------------------------------------------------------------------------

    \1\ Areas statutorily designated as mandatory Class I Federal 
Areas consist of national parks exceeding 6,000 acres, wilderness 
areas and national memorial parks exceeding 5,000 acres, and all 
international parks that were in existence on August 7, 1977. CAA 
162(a). There are 156 mandatory Class I Areas. The list of areas to 
which the requirements of the visibility protection program apply is 
in 40 CFR part 81, subpart D.
    \2\ In addition to the generally applicable Regional Haze 
provisions at 40 CFR 51.308, the EPA also promulgated regulations 
specific to addressing Regional Haze visibility impairment in Class 
I Areas on the Colorado Plateau at 40 CFR 51.309. The latter 
regulations are applicable only for specific jurisdictions' Regional 
Haze plans submitted no later than December 17, 2007, and thus are 
not relevant here.
---------------------------------------------------------------------------

    Regional Haze is visibility impairment that is produced by a 
multitude of anthropogenic sources and activities which are located 
across a broad geographic area and that emit pollutants that impair 
visibility. Visibility impairing pollutants include fine and coarse PM 
(e.g., sulfates, nitrates, organic carbon, elemental carbon, and soil 
dust) and their precursors (e.g., SO<INF>2</INF>, NO<INF>X</INF>, and, 
in some cases, VOC and NH<INF>3</INF>). Fine particle precursors react 
in the atmosphere to form fine PM (PM<INF>2.5</INF>), which impairs 
visibility by scattering and absorbing light. Visibility impairment 
reduces the perception of clarity and color, as well as visible 
distance.\3\
---------------------------------------------------------------------------

    \3\ There are several ways to measure the amount of visibility 
impairment, i.e., haze. One such measurement is the deciview, which 
is the principal metric used by the RHR. Under many circumstances, a 
change in one deciview will be perceived by the human eye to be the 
same on both clear and hazy days. The deciview is unitless. It is 
proportional to the logarithm of the atmospheric extinction of 
light, which is the perceived dimming of light due to its being 
scattered and absorbed as it passes through the atmosphere. 
Atmospheric light extinction (b\ext\) is a metric used to for 
expressing visibility and is measured in inverse megameters (Mm-1). 
The EPA's Guidance on Regional Haze State Implementation Plans for 
the Second Implementation Period (``2019 Guidance'') offers the 
flexibility for the use of light extinction in certain cases. Light 
extinction can be simpler to use in calculations than deciviews, 
since it is not a logarithmic function. See, e.g., 2019 Guidance at 
16, 19, https://www.epa.gov/visibility/guidance-regional-haze-state-implementation-plans-second-implementation-period. The EPA Office of 
Air Quality Planning and Standards, Research Triangle Park (August 
20, 2019). The formula for the deciview is 10 ln (b\ext\)/10 Mm-1). 
40 CFR 51.301.
---------------------------------------------------------------------------

    To address Regional Haze visibility impairment, the 1999 RHR 
established an iterative planning process that requires both states in 
which Class I Areas are located and states ``the emissions from which 
may reasonably be anticipated to cause or contribute to any impairment 
of visibility'' in a Class I Area to periodically submit SIP revisions 
to address such impairment. CAA section 169A(b)(2); \4\ see also 40 CFR 
51.308(b), (f) (establishing submission dates for iterative Regional 
Haze SIP revisions); (64 FR at 35768, July 1, 1999). Under the CAA, 
each SIP submission must contain ``a long-term (ten to fifteen years) 
strategy for making reasonable progress toward meeting the national 
goal,'' CAA section 169A(b)(2)(B); the initial round of SIP submissions 
also had to address the statutory requirement that certain older, 
larger sources of visibility impairing pollutants install and operate 
the best available retrofit technology (BART). CAA section 
169A(b)(2)(A); 40 CFR 51.308(d), (e). States' first Regional Haze SIPs 
were due by December 17, 2007, 40 CFR 51.308(b), with subsequent SIP 
submissions containing updated LTS originally due July 31, 2018, and 
every ten years thereafter. (64 FR at 35768, July 1, 1999). The EPA 
established in the 1999 RHR that all states either have Class I Areas 
within their borders or ``contain sources whose emissions are 
reasonably anticipated to contribute to Regional Haze in a Class I 
Area''; therefore, all states must submit Regional Haze SIPs.\5\ Id. at 
35721.
---------------------------------------------------------------------------

    \4\ The RHR expresses the statutory requirement for states to 
submit plans addressing out-of-state Class I Areas by providing that 
states must address visibility impairment ``in each mandatory Class 
I Federal Area located outside the State that may be affected by 
emissions from within the State.'' 40 CFR 51.308(d), (f).
    \5\ In addition to each of the fifty states, the EPA also 
concluded that the Virgin Islands and District of Columbia must also 
submit Regional Haze SIPs because they either contain a Class I Area 
or contain sources whose emissions are reasonably anticipated to 
contribute Regional Haze in a Class I Area. See 40 CFR 51.300(b), 
(d)(3).
---------------------------------------------------------------------------

    Much of the focus in the first implementation period of the 
Regional Haze program, which ran from 2007 through 2018, was on 
satisfying states' BART obligations. First implementation period SIPs 
were additionally required to contain LTS for making reasonable 
progress toward the national visibility goal, of which BART is one 
component. The core required elements for the first implementation 
period SIPs (other than BART) are laid out in 40 CFR 51.308(d). Those 
provisions required that states containing Class I Areas establish 
reasonable progress goals (RPGs) that are measured in deciviews and 
reflect the anticipated visibility conditions at the end of the 
implementation period including from implementation of states' LTS. The 
first planning period RPGs were required to provide for an improvement 
in visibility for the most impaired days over the period of the 
implementation plan and ensure no degradation in visibility for the 
least impaired days over the same period. In establishing the RPGs for 
any Class I Area in a state, the state was required to consider four 
statutory factors: the costs of compliance, the time necessary for 
compliance, the energy and non-air quality environmental impacts of 
compliance, and the remaining useful life of any potentially affected 
sources. CAA section 169A(g)(1); 40 CFR 51.308(d)(1).
    States were also required to calculate baseline (using the five 
year period of 2000-2004) and natural visibility conditions (i.e., 
visibility conditions without anthropogenic visibility impairment) for 
each Class I Area, and to calculate the linear rate of progress needed 
to attain natural visibility conditions, assuming a starting point of 
baseline visibility conditions in 2004 and ending with natural 
conditions in 2064. This linear interpolation is known as the uniform 
rate of progress (URP) and is used as a tracking metric to help states 
assess the amount of progress they are making towards the national 
visibility goal over time in each Class I Area.\6\ 40 CFR 
51.308(d)(1)(i)(B), (d)(2). The 1999 RHR also provided that States' LTS 
must include the ``enforceable emissions limitations, compliance, 
schedules, and other measures as necessary to achieve the reasonable 
progress goals.'' 40 CFR 51.308(d)(3). In

[[Page 180]]

establishing their LTS, states are required to consult with other 
states that also contribute to visibility impairment in a given Class I 
Area and include all measures necessary to obtain their shares of the 
emission reductions needed to meet the RPGs. 40 CFR 51.308(d)(3)(i), 
(ii). Section 51.308(d) also contains seven additional factors states 
must consider in formulating their LTS, 40 CFR 51.308(d)(3)(v), as well 
as provisions governing monitoring and other implementation plan 
requirements. 40 CFR 51.308(d)(4). Finally, the 1999 RHR required 
states to submit periodic progress reports--SIP revisions due every 
five years that contain information on states' implementation of their 
Regional Haze plans and an assessment of whether anything additional is 
needed to make reasonable progress, see 40 CFR 51.308(g), (h)--and to 
consult with the Federal Land Manager(s) \7\ (FLMs) responsible for 
each Class I Area according to the requirements in CAA section 169A(d) 
and 40 CFR 51.308(i).
---------------------------------------------------------------------------

    \6\ The EPA established the URP framework in the 1999 RHR to 
provide ``an equitable analytical approach'' to assessing the rate 
of visibility improvement at Class I Areas across the country. The 
start point for the URP analysis is 2004 and the endpoint was 
calculated based on the amount of visibility improvement that was 
anticipated to result from implementation of existing CAA programs 
over the period from the mid-1990s to approximately 2005. Assuming 
this rate of progress would continue into the future, the EPA 
determined that natural visibility conditions would be reached in 60 
years, or 2064 (60 years from the baseline starting point of 2004). 
However, the EPA did not establish 2064 as the year by which the 
national goal must be reached. 64 FR at 35731-32. That is, the URP 
and the 2064 date are not enforceable targets, but are rather tools 
that ``allow for analytical comparisons between the rate of progress 
that would be achieved by the state's chosen set of control measures 
and the URP.'' (82 FR 3078, 3084, January 10, 2017).
    \7\ The EPA's regulations define ``Federal Land Manager'' as 
``the Secretary of the department with authority over the Federal 
Class I Area (or the Secretary's designee) or, with respect to 
Roosevelt-Campobello International Park, the Chairman of the 
Roosevelt-Campobello International Park Commission.'' 40 CFR 51.301.
---------------------------------------------------------------------------

    On January 10, 2017, the EPA promulgated revisions to the RHR, (82 
FR 3078, January 10, 2017), that apply for the second and subsequent 
implementation periods. The 2017 rulemaking made several changes to the 
requirements for Regional Haze SIPs to clarify States' obligations and 
streamline certain Regional Haze requirements. The revisions to the 
Regional Haze program for the second and subsequent implementation 
periods focused on the requirement that States' SIPs contain LTS for 
making reasonable progress towards the national visibility goal. The 
reasonable progress requirements as revised in the 2017 rulemaking 
(referred to here as the 2017 RHR Revisions) are codified at 40 CFR 
51.308(f). Among other changes, the 2017 RHR Revisions adjusted the 
deadline for States to submit their second implementation period SIPs 
from July 31, 2018, to July 31, 2021, clarified the order of analysis 
and the relationship between RPGs and the LTS, and focused on making 
visibility improvements on the days with the most anthropogenic 
visibility impairment, as opposed to the days with the most visibility 
impairment overall. The EPA also revised requirements of the visibility 
protection program related to periodic progress reports and FLM 
consultation. The specific requirements applicable to second 
implementation period Regional Haze SIP submissions are addressed in 
detail below.
    The EPA provided guidance to the states for their second 
implementation period SIP submissions in the preamble to the 2017 RHR 
Revisions as well as in subsequent, stand-alone guidance documents. In 
August 2019, the EPA issued ``Guidance on Regional Haze State 
Implementation Plans for the Second Implementation Period'' (``2019 
Guidance'').\8\ On July 8, 2021, the EPA issued a memorandum containing 
``Clarifications Regarding Regional Haze State Implementation Plans for 
the Second Implementation Period'' (``2021 Clarifications Memo'').\9\ 
Additionally, the EPA further clarified the recommended procedures for 
processing ambient visibility data and optionally adjusting the URP to 
account for international anthropogenic and prescribed fire impacts in 
two technical guidance documents: the December 2018 ``Technical 
Guidance on Tracking Visibility Progress for the Second Implementation 
Period of the Regional Haze Program'' (``2018 Visibility Tracking 
Guidance''),\10\ and the June 2020 ``Recommendation for the Use of 
Patched and Substituted Data and Clarification of Data Completeness for 
Tracking Visibility Progress for the Second Implementation Period of 
the Regional Haze Program'' and associated Technical Addendum (``2020 
Data Completeness Memo'').\11\
---------------------------------------------------------------------------

    \8\ Guidance on Regional Haze State Implementation Plans for the 
Second Implementation Period. https://www.epa.gov/visibility/guidance-regional-haze-state-implementation-plans-second-implementation-period The EPA Office of Air Quality Planning and 
Standards, Research Triangle Park (August 20, 2019).
    \9\ Clarifications Regarding Regional Haze State Implementation 
Plans for the Second Implementation Period. https://www.epa.gov/system/files/documents/2021-07/clarifications-regarding-regional-haze-state-implementation-plans-for-the-second-implementation-period.pdf. The EPA Office of Air Quality Planning and Standards, 
Research Triangle Park (July 8, 2021).
    \10\ Technical Guidance on Tracking Visibility Progress for the 
Second Implementation Period of the Regional Haze Program. https://www.epa.gov/visibility/technical-guidance-tracking-visibility-progress-second-implementation-period-regional The EPA Office of Air 
Quality Planning and Standards, Research Triangle Park. (December 
20, 2018).
    \11\ Recommendation for the Use of Patched and Substituted Data 
and Clarification of Data Completeness for Tracking Visibility 
Progress for the Second Implementation Period of the Regional Haze 
Program. https://www.epa.gov/visibility/memo-and-technical-addendum-ambient-data-usage-and-completeness-regional-haze-program. The EPA 
Office of Air Quality Planning and Standards, Research Triangle Park 
(June 3, 2020).
---------------------------------------------------------------------------

    As previously explained in the 2021 Clarifications Memo, the EPA 
intends the second implementation period of the Regional Haze program 
to secure meaningful reductions in visibility impairing pollutants that 
build on the significant progress states have achieved to date. The 
Agency also recognizes that analyses regarding reasonable progress are 
state-specific and that, based on states' and sources' individual 
circumstances, what constitutes reasonable reductions in visibility 
impairing pollutants will vary from state-to-state. While there exist 
many opportunities for states to leverage both ongoing and upcoming 
emission reductions under other CAA programs, the Agency expects states 
to undertake rigorous reasonable progress analyses that identify 
further opportunities to advance the national visibility goal 
consistent with the statutory and regulatory requirements. See 
generally 2021 Clarifications Memo. This is consistent with Congress's 
determination that a visibility protection program is needed in 
addition to the CAA's National Ambient Air Quality Standards (NAAQS) 
and Prevention of Significant Deterioration (PSD) programs, as further 
emission reductions may be necessary to adequately protect visibility 
in Class I Areas throughout the country.\12\
---------------------------------------------------------------------------

    \12\ See, e.g., H.R. Rep No. 95-294 at 205 (``In determining how 
to best remedy the growing visibility problem in these areas of 
great scenic importance, the committee realizes that as a matter of 
equity, the national ambient air quality standards cannot be revised 
to adequately protect visibility in all areas of the country.''), 
(``the mandatory Class I increments of [the PSD program] do not 
adequately protect visibility in Class I Areas'').
---------------------------------------------------------------------------

B. Roles of Agencies in Addressing Regional Haze

    Because the air pollutants and pollution affecting visibility in 
Class I Areas can be transported over long distances, successful 
implementation of the Regional Haze program requires long-term, 
regional coordination among multiple jurisdictions and agencies that 
have responsibility for Class I Areas and the emissions that impact 
visibility in those Areas. In order to address Regional Haze, states 
need to develop strategies in coordination with one another, 
considering the effect of emissions from one jurisdiction on the air 
quality in another. Five regional planning organizations (RPOs),\13\ 
which include representation from state and tribal governments, the 
EPA, and FLMs, were developed in the lead-up to the first 
implementation period to address Regional Haze. RPOs evaluate technical 
information to better understand how

[[Page 181]]

emissions from State and Tribal land impact Class I Areas across the 
country, pursue the development of regional strategies to reduce 
emissions of PM and other pollutants leading to Regional Haze, and help 
states meet the consultation requirements of the RHR.
---------------------------------------------------------------------------

    \13\ RPOs are sometimes also referred to as ``multi-
jurisdictional organizations,'' or MJOs. For the purposes of this 
document, the terms RPO and MJO are synonymous.
---------------------------------------------------------------------------

    The Central Regional Air Planning Association (CenRAP), one of the 
five RPOs described above, that Kansas was a member of during the first 
planning period, was a collaborative effort of state governments, 
tribal governments, and Federal Agencies established to initiate and 
coordinate activities associated with the management of Regional Haze, 
visibility, and other air quality issues in parts of the Great Plains, 
Midwest, Southwest, and South Regions of the United States.
    After the first planning period SIPs were submitted, the planning 
was shifted to the Central State Air Resources Agencies (CenSARA). 
CenSARA is a collaborative effort of state governments established to 
initiate and coordinate activities associated with the management of 
Regional Haze and other air quality issues in parts of the Great 
Plains, Midwest, Southwest, and South Regions of the United States. 
Member states include: Arkansas, Iowa, Kansas, Louisiana, Missouri, 
Nebraska, Oklahoma, and Texas. Unlike CenRAP, CenSARA has solely state 
members. However, CenSARA does reach out to Tribal and Federal 
partners. The Federal partners of CenSARA are the EPA, the NPS, the 
FWS, and FS.

IV. Requirements for Regional Haze Plans for the Second Implementation 
Period

    Under the CAA and EPA's regulations, all 50 states, the District of 
Columbia, and the U.S. Virgin Islands are required to submit Regional 
Haze SIPs satisfying the applicable requirements for the second 
implementation period of the Regional Haze program by July 31, 2021. 
Each state's SIP must contain a LTS for making reasonable progress 
toward meeting the national goal of remedying any existing and 
preventing any future anthropogenic visibility impairment in Class I 
Areas. CAA section 169A(b)(2)(B). To this end, Sec.  51.308(f) lays out 
the process by which states determine what constitutes their LTS, with 
the order of the requirements in Sec.  51.308(f)(1) through (f)(3) 
generally mirroring the order of the steps in the reasonable progress 
analysis \14\ and (f)(4) through (f)(6) containing additional, related 
requirements. Broadly speaking, a state first must identify the Class I 
Areas within the state and determine the Class I Areas outside the 
state in which visibility may be affected by emissions from the state. 
These are the Class I Areas that must be addressed in the state's LTS. 
See 40 CFR 51.308(f), (f)(2). For each Class I Area within its borders, 
a state must then calculate the baseline, current, and natural 
visibility conditions for that area, as well as the visibility 
improvement made to date and the URP. See 40 CFR 51.308(f)(1). Each 
state having a Class I Area and/or emissions that may affect visibility 
in a Class I Area must then develop a LTS that includes the enforceable 
emission limitations, compliance schedules, and other measures that are 
necessary to make reasonable progress in such Areas. A reasonable 
progress determination is based on applying the four factors in CAA 
section 169A(g)(1) to sources of visibility-impairing pollutants that 
the state has selected to assess for controls for the second 
implementation period. Additionally, as further explained below, the 
RHR at 40 CFR 51.3108(f)(2)(iv) separately provides five ``additional 
factors'' \15\ that states must consider in developing their LTS. See 
40 CFR 51.308(f)(2). A state evaluates potential emission reduction 
measures for those selected sources and determines which are necessary 
to make reasonable progress using the four statutory factors. Those 
measures are then incorporated into the state's LTS. After a state has 
developed its LTS, it then establishes RPGs for each Class I Area 
within its borders by modeling the visibility impacts of all reasonable 
progress controls at the end of the second implementation period, i.e., 
in 2028, as well as the impacts of other requirements of the CAA. The 
RPGs include reasonable progress controls not only for sources in the 
state in which the Class I Area is located, but also for sources in 
other states that contribute to visibility impairment in that Area. The 
RPGs are then compared to the baseline visibility conditions and the 
URP to ensure that progress is being made towards the statutory goal of 
preventing any future and remedying any existing anthropogenic 
visibility impairment in Class I Areas. 40 CFR 51.308(f)(2)-(3).
---------------------------------------------------------------------------

    \14\ The EPA explained in the 2017 RHR Revisions that we were 
adopting new regulatory language in 40 CFR 51.308(f) that, unlike 
the structure in Sec.  51.308(d), ``tracked the actual planning 
sequence.'' (82 FR 3091, January 10, 2017).
    \15\ The five ``additional factors'' for consideration in Sec.  
51.308(f)(2)(iv) are distinct from the four factors listed in CAA 
section 169A(g)(1) and 40 CFR 51.308(f)(2)(i) that states must 
consider and apply to sources in determining reasonable progress.
---------------------------------------------------------------------------

    In addition to satisfying the requirements at 40 CFR 51.308(f) 
related to reasonable progress, the Regional Haze SIP revisions for the 
second implementation period must address the requirements in Sec.  
51.308(g)(1) through (5) pertaining to periodic reports describing 
progress towards the RPGs, 40 CFR 51.308(f)(5), as well as requirements 
for FLM consultation that apply to all visibility protection SIPs and 
SIP revisions. 40 CFR 51.308(i).
    A state must submit its Regional Haze SIP and subsequent SIP 
revisions to the EPA according to the requirements applicable to all 
SIP revisions under the CAA and EPA's regulations. See CAA 169(b)(2); 
CAA 110(a). Upon EPA approval, a SIP is enforceable by the Agency and 
the public under the CAA. If the EPA finds that a state fails to make a 
required SIP revision, or if the EPA finds that a state's SIP is 
incomplete or if disapproves the SIP, the Agency must promulgate a 
federal implementation plan (FIP) that satisfies the applicable 
requirements. CAA 110(c)(1).

A. Identification of Class I Areas

    The first step in developing a Regional Haze SIP is for a state to 
determine which Class I Areas, in addition to those within its borders, 
``may be affected'' by emissions from within the state. In the 1999 
RHR, the EPA determined that all states contribute to visibility 
impairment in at least one Class I Area, 64 FR at 35720-22, and 
explained that the statute and regulations lay out an ``extremely low 
triggering threshold'' for determining ``whether States should be 
required to engage in air quality planning and analysis as a 
prerequisite to determining the need for control of emissions from 
sources within their State.'' Id. at 35721.
    A state must determine which Class I Areas must be addressed by its 
SIP by evaluating the total emissions of visibility impairing 
pollutants from all sources within the state. While the RHR does not 
require this evaluation to be conducted in any particular manner, EPA's 
2019 Guidance provides recommendations for how such an assessment might 
be accomplished, including by, where appropriate, using the 
determinations previously made for the first implementation period. 
2019 Guidance at 8-9. In addition, the determination of which Class I 
Areas may be affected by a state's emissions is subject to the 
requirement in 40 CFR 51.308(f)(2)(iii) to ``document the technical 
basis, including modeling, monitoring, cost, engineering, and emissions 
information, on which the State is relying to determine the emission 
reduction measures that are necessary to make reasonable progress in 
each mandatory Class I Federal Area it affects.''

[[Page 182]]

B. Calculations of Baseline, Current, and Natural Visibility 
Conditions; Progress to Date; and the Uniform Rate of Progress

    As part of assessing whether a SIP submission for the second 
implementation period is providing for reasonable progress towards the 
national visibility goal, the RHR contains requirements in Sec.  
51.308(f)(1) related to tracking visibility improvement over time. The 
requirements of this subsection apply only to states having Class I 
Areas within their borders; the required calculations must be made for 
each such Class I Area. EPA's 2018 Visibility Tracking Guidance \16\ 
provides recommendations to assist states in satisfying their 
obligations under Sec.  51.308(f)(1); specifically, in developing 
information on baseline, current, and natural visibility conditions, 
and in making optional adjustments to the URP to account for the 
impacts of international anthropogenic emissions and prescribed fires. 
See 82 FR 3103-05.
---------------------------------------------------------------------------

    \16\ The 2018 Visibility Tracking Guidance references and relies 
on parts of the 2003 Tracking Guidance: ``Guidance for Tracking 
Progress Under the Regional Haze Rule,'' which can be found at 
https://www3.epa.gov/ttnamti1/files/ambient/visible/tracking.pdf.
---------------------------------------------------------------------------

    The RHR requires tracking of visibility conditions on two sets of 
days: the clearest and the most impaired days. Visibility conditions 
for both sets of days are expressed as the average deciview index for 
the relevant five-year period (the period representing baseline or 
current visibility conditions). The RHR provides that the relevant sets 
of days for visibility tracking purposes are the 20% clearest (the 20% 
of monitored days in a calendar year with the lowest values of the 
deciview index) and 20% most impaired days (the 20% of monitored days 
in a calendar year with the highest amounts of anthropogenic visibility 
impairment).\17\ 40 CFR 51.301. A state must calculate visibility 
conditions for both the 20% clearest and 20% most impaired days for the 
baseline period of 2000-2004 and the most recent five-year period for 
which visibility monitoring data are available (representing current 
visibility conditions). 40 CFR 51.308(f)(1)(i), (iii). States must also 
calculate natural visibility conditions for the clearest and most 
impaired days,\18\ by estimating the conditions that would exist on 
those two sets of days absent anthropogenic visibility impairment. 40 
CFR 51.308(f)(1)(ii). Using all these data, states must then calculate, 
for each Class I Area, the amount of progress made since the baseline 
period (2000-2004) and how much improvement is left to achieve in order 
to reach natural visibility conditions.
---------------------------------------------------------------------------

    \17\ This document also refers to the 20% clearest and 20% most 
anthropogenically impaired days as the ``clearest'' and ``most 
impaired'' or ``most anthropogenically impaired'' days, 
respectively.
    \18\ The RHR at 40 CFR 51.308(f)(1)(ii) contains an error 
related to the requirement for calculating two sets of natural 
conditions values. The rule says ``most impaired days or the 
clearest days'' where it should say ``most impaired days and 
clearest days.'' This is an error that was intended to be corrected 
in the 2017 RHR Revisions but did not get corrected in the final 
rule language. This is supported by the preamble text at 82 FR 3098: 
``In the final version of 40 CFR 51.308(f)(1)(ii), an occurrence of 
``or'' has been corrected to ``and'' to indicate that natural 
visibility conditions for both the most impaired days and the 
clearest days must be based on available monitoring information.''
---------------------------------------------------------------------------

    Using the data for the set of most impaired days only, states must 
plot a line between visibility conditions in the baseline period and 
natural visibility conditions for each Class I Area to determine the 
URP--the amount of visibility improvement, measured in deciviews, that 
would need to be achieved during each implementation period in order to 
achieve natural visibility conditions by the end of 2064. The URP is 
used in later steps of the reasonable progress analysis for 
informational purposes and to provide a non-enforceable benchmark 
against which to assess a Class I Area's rate of visibility 
improvement.\19\ Additionally, in the 2017 RHR Revisions, the EPA 
provided states the option of proposing to adjust the endpoint of the 
URP to account for impacts of anthropogenic sources outside the United 
States and/or impacts of certain types of wildland prescribed fires. 
These adjustments, which must be approved by the EPA, are intended to 
avoid any perception that states should compensate for impacts from 
international anthropogenic sources and to give states the flexibility 
to determine that limiting the use of wildland-prescribed fire is not 
necessary for reasonable progress. 82 FR 3107 footnote 116.
---------------------------------------------------------------------------

    \19\ Being on or below the URP is not a ``safe harbor''; i.e., 
achieving the URP does not mean that a Class I Area is making 
``reasonable progress'' and does not relieve a state from using the 
four statutory factors to determine what level of control is needed 
to achieve such progress. See, e.g., 82 FR at 3093.
---------------------------------------------------------------------------

    EPA's 2018 Visibility Tracking Guidance can be used to help satisfy 
the 40 CFR 51.308(f)(1) requirements, including in developing 
information on baseline, current, and natural visibility conditions, 
and in making optional adjustments to the URP. In addition, the 2020 
Data Completeness Memo provides recommendations on the data 
completeness language referenced in Sec.  51.308(f)(1)(i) and provides 
updated natural conditions estimates for each Class I Area.

C. Long-Term Strategy for Regional Haze

    The core component of a Regional Haze SIP submission is a LTS that 
addresses Regional Haze in each Class I Area within a state's borders 
and each Class I Area that may be affected by emissions from the state. 
The LTS ``must include the enforceable emissions limitations, 
compliance schedules, and other measures that are necessary to make 
reasonable progress, as determined pursuant to (f)(2)(i) through 
(iv).'' 40 CFR 51.308(f)(2). The amount of progress that is 
``reasonable progress'' is based on applying the four statutory factors 
in CAA section 169A(g)(1) in an evaluation of potential control options 
for sources of visibility impairing pollutants, which is referred to as 
a ``four-factor'' analysis. The outcome of that analysis is the 
emission reduction measures that a particular source or group of 
sources needs to implement in order to make reasonable progress towards 
the national visibility goal. See 40 CFR 51.308(f)(2)(i). Emission 
reduction measures that are necessary to make reasonable progress may 
be either new, additional control measures for a source, or they may be 
the existing emission reduction measures that a source is already 
implementing. See 2019 Guidance at 43; 2021 Clarifications Memo at 8-
10. Such measures must be represented by ``enforceable emissions 
limitations, compliance schedules, and other measures'' (i.e., any 
additional compliance tools) in a state's LTS in its SIP. 40 CFR 
51.308(f)(2).
    Section 51.308(f)(2)(i) provides the requirements for the four-
factor analysis. The first step of this analysis entails selecting the 
sources to be evaluated for emission reduction measures; to this end, 
the RHR requires states to consider ``major and minor stationary 
sources or groups of sources, mobile sources, and area sources'' of 
visibility impairing pollutants for potential four-factor control 
analysis. 40 CFR 51.308(f)(2)(i). A threshold question at this step is 
which visibility impairing pollutants will be analyzed. As the EPA 
previously explained, consistent with the first implementation period, 
the EPA generally expects that each state will analyze at least 
SO<INF>2</INF> and NO<INF>X</INF> in selecting sources and determining 
control measures. See 2019 Guidance at 12, 2021 Clarifications Memo at 
4. A state that chooses not to consider at least these two pollutants 
should demonstrate why such

[[Page 183]]

consideration would be unreasonable. 2021 Clarifications Memo at 4.
    While states have the option to analyze all sources, the 2019 
Guidance explains that ``an analysis of control measures is not 
required for every source in each implementation period,'' and that 
``[s]electing a set of sources for analysis of control measures in each 
implementation period is . . . consistent with the Regional Haze Rule, 
which sets up an iterative planning process and anticipates that a 
state may not need to analyze control measures for all its sources in a 
given SIP revision.'' 2019 Guidance at 9. However, given that source 
selection is the basis of all subsequent control determinations, a 
reasonable source selection process ``should be designed and conducted 
to ensure that source selection results in a set of pollutants and 
sources the evaluation of which has the potential to meaningfully 
reduce their contributions to visibility impairment.'' 2021 
Clarifications Memo at 3.
    The EPA explained in the 2021 Clarifications Memo that each state 
has an obligation to submit a LTS that addresses the Regional Haze 
visibility impairment that results from emissions from within that 
state. Thus, source selection should focus on the in-state contribution 
to visibility impairment and be designed to capture a meaningful 
portion of the state's total contribution to visibility impairment in 
Class I Areas. A state should not decline to select its largest in-
state sources on the basis that there are even larger out-of-state 
contributors. 2021 Clarifications Memo at 4.\20\ Additionally, as 
stated in both the 2019 Guidance and 2021 Clarifications memo, a state 
that brings no sources forward for analysis of control measures must 
explain how doing so is consistent with the statutory and regulatory 
requirements for SIPs to contain the measures necessary to make 
reasonable progress. 2019 Guidance at 10 and 2021 Clarifications Memo 
at 5-6.
---------------------------------------------------------------------------

    \20\ Similarly, in responding to comments on the 2017 RHR 
Revisions the EPA explained that ``[a] state should not fail to 
address its many relatively low-impact sources merely because it 
only has such sources and another state has even more low-impact 
sources and/or some high impact sources.'' Responses to Comments on 
Protection of Visibility: Amendments to Requirements for State 
Plans; Proposed Rule (81 FR 26942, May 4, 2016) at 87-88.
---------------------------------------------------------------------------

    Thus, while states have discretion to choose any source selection 
methodology that is reasonable, whatever choices they make should be 
reasonably explained. To this end, 40 CFR 51.308(f)(2)(i) requires that 
a state's SIP submission include ``a description of the criteria it 
used to determine which sources or groups of sources it evaluated.'' 
The technical basis for source selection, which may include methods for 
quantifying potential visibility impacts such as emissions divided by 
distance metrics, trajectory analyses, residence time analyses, and/or 
photochemical modeling, must also be appropriately documented, as 
required by 40 CFR 51.308(f)(2)(iii).
    Once a state has selected the set of sources, the next step is to 
determine the emissions reduction measures for those sources that are 
necessary to make reasonable progress for the second implementation 
period.\21\ This is accomplished by considering the four factors--``the 
costs of compliance, the time necessary for compliance, and the energy 
and nonair quality environmental impacts of compliance, and the 
remaining useful life of any existing source subject to such 
requirements.'' CAA section 169A(g)(1). The EPA has explained that the 
four-factor analysis is an assessment of potential emission reduction 
measures (i.e., control options) for sources; ``use of the terms 
`compliance' and `subject to such requirements' in section 169A(g)(1) 
strongly indicates that Congress intended the relevant determination to 
be the requirements with which sources would have to comply in order to 
satisfy the CAA's reasonable progress mandate.'' 82 FR at 3091. Thus, 
for each source it has selected for four-factor analysis,\22\ a state 
must consider a ``meaningful set'' of technically feasible control 
options for reducing emissions of visibility impairing pollutants. Id. 
at 3088. The 2019 Guidance provides that ``[a] state must reasonably 
pick and justify the measures that it will consider, recognizing that 
there is no statutory or regulatory requirement to consider all 
technically feasible measures or any particular measures. A range of 
technically feasible measures available to reduce emissions would be 
one way to justify a reasonable set.'' 2019 Guidance at 29.
---------------------------------------------------------------------------

    \21\ The CAA provides that, ``[i]n determining reasonable 
progress there shall be taken into consideration'' the four 
statutory factors. CAA section 169A(g)(1). However, in addition to 
four-factor analyses for selected sources, groups of sources, or 
source categories, a state may also consider additional emission 
reduction measures for inclusion in its long-term strategy, e.g., 
from other newly adopted, on-the-books, or on-the-way rules and 
measures for sources not selected for four-factor analysis for the 
second planning period.
    \22\ ``Each source'' or ``particular source'' is used here as 
shorthand. While a source-specific analysis is one way of applying 
the four factors, neither the statute nor the RHR requires states to 
evaluate individual sources. Rather, states have ``the flexibility 
to conduct four-factor analyses for specific sources, groups of 
sources or even entire source categories, depending on state policy 
preferences and the specific circumstances of each state.'' 82 FR at 
3088. However, not all approaches to grouping sources for four-
factor analysis are necessarily reasonable; the reasonableness of 
grouping sources in any particular instance will depend on the 
circumstances and the manner in which grouping is conducted. If it 
is feasible to establish and enforce different requirements for 
sources or subgroups of sources, and if relevant factors can be 
quantified for those sources or subgroups, then states should make a 
separate reasonable progress determination for each source or 
subgroup. 2021 Clarifications Memo at 7-8.
---------------------------------------------------------------------------

    EPA's 2021 Clarifications Memo provides further guidance on what 
constitutes a reasonable set of control options for consideration: ``A 
reasonable four-factor analysis will consider the full range of 
potentially reasonable options for reducing emissions.'' 2021 
Clarifications Memo at 7. In addition to add-on controls and other 
retrofits (i.e., new emission reduction measures for sources), the EPA 
explained that states should generally analyze efficiency improvements 
for sources' existing measures as control options in their four-factor 
analyses, as in many cases such improvements are reasonable given that 
they typically involve only additional operation and maintenance costs. 
Additionally, the 2021 Clarifications Memo provides that states that 
have assumed a higher emission rate than a source has achieved or could 
potentially achieve using its existing measures should also consider 
lower emission rates as potential control options. That is, a state 
should consider a source's recent actual and projected emission rates 
to determine if it could reasonably attain lower emission rates with 
its existing measures. If so, the state should analyze the lower 
emission rate as a control option for reducing emissions. 2021 
Clarifications Memo at 7. The EPA's recommendations to analyze 
potential efficiency improvements and achievable lower emission rates 
apply to both sources that have been selected for four-factor analysis 
and those that have forgone a four-factor analysis on the basis of 
existing ``effective controls.'' See 2021 Clarifications Memo at 5, 10.
    After identifying a reasonable set of potential control options for 
the sources it has selected, a state then collects information on the 
four factors with regard to each option identified. The EPA has also 
explained that, in addition to the four statutory factors, states have 
flexibility under the CAA and RHR to reasonably consider visibility 
benefits as an additional factor alongside the four statutory 
factors.\23\ The 2019 Guidance

[[Page 184]]

provides recommendations for the types of information that can be used 
to characterize the four factors (with or without visibility), as well 
as ways in which states might reasonably consider and balance that 
information to determine which of the potential control options is 
necessary to make reasonable progress. See 2019 Guidance at 30-36. The 
2021 Clarifications Memo contains further guidance on how states can 
reasonably consider modeled visibility impacts or benefits in the 
context of a four-factor analysis. 2021 Clarifications Memo at 12-13, 
14-15. Specifically, the EPA explained that while visibility can 
reasonably be used when comparing and choosing between multiple 
reasonable control options, it should not be used to summarily reject 
controls that are reasonable given the four statutory factors. 2021 
Clarifications Memo at 13. Ultimately, while states have discretion to 
reasonably weigh the factors and to determine what level of control is 
needed, Sec.  51.308(f)(2)(i) provides that a state ``must include in 
its implementation plan a description of . . . how the four factors 
were taken into consideration in selecting the measure for inclusion in 
its long-term strategy.''
---------------------------------------------------------------------------

    \23\ See, e.g., Responses to Comments on Protection of 
Visibility: Amendments to Requirements for State Plans; Proposed 
Rule (81 FR 26942, May 4, 2016), Docket Number EPA-HQ-OAR-2015-0531, 
U.S. Environmental Protection Agency at 186; 2019 Guidance at 36-37.
---------------------------------------------------------------------------

    As explained above, Sec.  51.308(f)(2)(i) requires states to 
determine the emission reduction measures for sources that are 
necessary to make reasonable progress by considering the four factors. 
Pursuant to Sec.  51.308(f)(2), measures that are necessary to make 
reasonable progress towards the national visibility goal must be 
included in a state's LTS and in its SIP.\24\ If the outcome of a four-
factor analysis is a new, additional emission reduction measure for a 
source, that new measure is necessary to make reasonable progress 
towards remedying existing anthropogenic visibility impairment and must 
be included in the SIP. If the outcome of a four-factor analysis is 
that no new measures are reasonable for a source, continued 
implementation of the source's existing measures is generally necessary 
to prevent future emission increases and thus to make reasonable 
progress towards the second part of the national visibility goal: 
preventing future anthropogenic visibility impairment. See CAA section 
169A(a)(1). That is, when the result of a four-factor analysis is that 
no new measures are necessary to make reasonable progress, the source's 
existing measures are generally necessary to make reasonable progress 
and must be included in the SIP. However, there may be circumstances in 
which a state can demonstrate that a source's existing measures are not 
necessary to make reasonable progress. Specifically, if a state can 
demonstrate that a source will continue to implement its existing 
measures and will not increase its emission rate, it may not be 
necessary to have those measures in the LTS in order to prevent future 
emission increases and future visibility impairment. EPA's 2021 
Clarifications Memo provides further explanation and guidance on how 
states may demonstrate that a source's existing measures are not 
necessary to make reasonable progress. See 2021 Clarifications Memo at 
8-10. If the state can make such a demonstration, it need not include a 
source's existing measures in the LTS or its SIP.
---------------------------------------------------------------------------

    \24\ States may choose to, but are not required to, include 
measures in their LTS beyond just the emission reduction measures 
that are necessary for reasonable progress. See 2021 Clarifications 
Memo at 16. For example, states with smoke management programs may 
choose to submit their smoke management plans to the EPA for 
inclusion in their SIPs but are not required to do so. See, e.g., 82 
FR at 3108-09 (requirement to consider smoke management practices 
and smoke management programs under 40 CFR 51.308(f)(2)(iv) does not 
require states to adopt such practices or programs into their SIPs, 
although they may elect to do so).
---------------------------------------------------------------------------

    As with source selection, the characterization of information on 
each of the factors is also subject to the documentation requirement in 
Sec.  51.308(f)(2)(iii). The reasonable progress analysis, including 
source selection, information gathering, characterization of the four 
statutory factors (and potentially visibility), balancing of the four 
factors, and selection of the emission reduction measures that 
represent reasonable progress, is a technically complex exercise, but 
also a flexible one that provides states with bounded discretion to 
design and implement approaches appropriate to their circumstances. 
Given this flexibility, Sec.  51.308(f)(2)(iii) plays an important 
function in requiring a state to document the technical basis for its 
decision making so that the public and the EPA can comprehend and 
evaluate the information and analysis the state relied upon to 
determine what emission reduction measures must be in place to make 
reasonable progress. The technical documentation must include the 
modeling, monitoring, cost, engineering, and emissions information on 
which the state relied to determine the measures necessary to make 
reasonable progress. This documentation requirement can be met through 
the provision of and reliance on technical analyses developed through a 
regional planning process, so long as that process and its output has 
been approved by all state participants. In addition to the explicit 
regulatory requirement to document the technical basis of their 
reasonable progress determinations, states are also subject to the 
general principle that those determinations must be reasonably moored 
to the statute.\25\ That is, a state's decisions about the emission 
reduction measures that are necessary to make reasonable progress must 
be consistent with the statutory goal of remedying existing and 
preventing future visibility impairment.
---------------------------------------------------------------------------

    \25\ See Arizona ex rel. Darwin v. U.S. EPA, 815 F.3d 519, 531 
(9th Cir. 2016); Nebraska v. U.S. EPA, 812 F.3d 662, 668 (8th Cir. 
2016); North Dakota v. EPA, 730 F.3d 750, 761 (8th Cir. 2013); 
Oklahoma v. EPA, 723 F.3d 1201, 1206, 1208-10 (10th Cir. 2013); cf. 
also Nat'l Parks Conservation Ass'n v. EPA, 803 F.3d 151, 165 (3d 
Cir. 2015); Alaska Dep't of Envtl. Conservation v. EPA, 540 U.S. 
461, 485, 490 (2004).
---------------------------------------------------------------------------

    The four statutory factors (and potentially visibility) are used to 
determine what emission reduction measures for selected sources must be 
included in a state's LTS for making reasonable progress. Additionally, 
the RHR at 40 CFR 51.3108(f)(2)(iv) separately provides five 
``additional factors'' \26\ that states must consider in developing 
their LTS: (1) Emission reductions due to ongoing air pollution control 
programs, including measures to address reasonably attributable 
visibility impairment; (2) measures to reduce the impacts of 
construction activities; (3) source retirement and replacement 
schedules; (4) basic smoke management practices for prescribed fire 
used for agricultural and wildland vegetation management purposes and 
smoke management programs; and (5) the anticipated net effect on 
visibility due to projected changes in point, area, and mobile source 
emissions over the period addressed by the LTS. The 2019 Guidance 
provides that a state may satisfy this requirement by considering these 
additional factors in the process of selecting sources for four-factor 
analysis, when performing that analysis, or both, and that not every 
one of the additional factors needs to be considered at the same stage 
of the process. See 2019 Guidance at 21. The EPA provided further 
guidance on the five additional factors in the 2021 Clarifications 
Memo, explaining that a state should generally not reject cost-
effective and otherwise reasonable controls merely because there have 
been emission reductions since the first

[[Page 185]]

planning period owing to other ongoing air pollution control programs 
or merely because visibility is otherwise projected to improve at Class 
I Areas. Additionally, states generally should not rely on these 
additional factors to summarily assert that the state has already made 
sufficient progress and, therefore, no sources need to be selected or 
no new controls are needed regardless of the outcome of four-factor 
analyses. 2021 Clarifications Memo at 13.
---------------------------------------------------------------------------

    \26\ The five ``additional factors'' for consideration in Sec.  
51.308(f)(2)(iv) are distinct from the four factors listed in CAA 
section 169A(g)(1) and 40 CFR 51.308(f)(2)(i) that states must 
consider and apply to sources in determining reasonable progress.
---------------------------------------------------------------------------

    Because the air pollution that causes Regional Haze crosses state 
boundaries, Sec.  51.308(f)(2)(ii) requires a state to consult with 
other states that also have emissions that are reasonably anticipated 
to contribute to visibility impairment in a given Class I Area. 
Consultation allows for each state that impacts visibility in an Area 
to share whatever technical information, analyses, and control 
determinations may be necessary to develop coordinated emission 
management strategies. This coordination may be managed through inter- 
and intra-RPO consultation and the development of regional emissions 
strategies; additional consultations between states outside of RPO 
processes may also occur. If a state, pursuant to consultation, agrees 
that certain measures (e.g., a certain emission limitation) are 
necessary to make reasonable progress at a Class I Area, it must 
include those measures in its SIP. 40 CFR 51.308(f)(2)(ii)(A). 
Additionally, the RHR requires that states that contribute to 
visibility impairment at the same Class I Area consider the emission 
reduction measures the other contributing states have identified as 
being necessary to make reasonable progress for their own sources. 40 
CFR 51.308(f)(2)(ii)(B). If a state has been asked to consider or adopt 
certain emission reduction measures, but ultimately determines those 
measures are not necessary to make reasonable progress, that state must 
document in its SIP the actions taken to resolve the disagreement. 40 
CFR 51.308(f)(2)(ii)(C). The EPA will consider the technical 
information and explanations presented by the submitting state and the 
state with which it disagrees when considering whether to approve the 
state's SIP. See id.; 2019 Guidance at 53. Under all circumstances, a 
state must document in its SIP submission all substantive consultations 
with other contributing states. 40 CFR 51.308(f)(2)(ii)(C).

D. Reasonable Progress Goals

    Reasonable progress goals ``measure the progress that is projected 
to be achieved by the control measures states have determined are 
necessary to make reasonable progress based on a four-factor 
analysis.'' 82 FR at 3091. Their primary purpose is to assist the 
public and the EPA in assessing the reasonableness of states' LTS for 
making reasonable progress towards the national visibility goal. See 40 
CFR 51.308(f)(3)(iii)-(iv). States in which Class I Areas are located 
must establish two RPGs, both in deciviews--one representing visibility 
conditions on the clearest days and one representing visibility on the 
most anthropogenically impaired days--for each Area within their 
borders. 40 CFR 51.308(f)(3)(i). The two RPGs are intended to reflect 
the projected impacts, on the two sets of days, of the emission 
reduction measures the state with the Class I Area, as well as all 
other contributing states, have included in their LTS for the second 
implementation period.\27\ The RPGs also account for the projected 
impacts of implementing other CAA requirements, including non-SIP based 
requirements. Because RPGs are the modeled result of the measures in 
states' LTS (as well as other measures required under the CAA), they 
cannot be determined before states have conducted their four-factor 
analyses and determined the control measures that are necessary to make 
reasonable progress. See 2021 Clarifications Memo at 6.
---------------------------------------------------------------------------

    \27\ RPGs are intended to reflect the projected impacts of the 
measures all contributing states include in their LTS. However, due 
to the timing of analyses and of control determinations by other 
states, other on-going emissions changes, a particular state's RPGs 
may not reflect all control measures and emissions reductions that 
are expected to occur by the end of the implementation period. The 
2019 Guidance provides recommendations for addressing the timing of 
RPG calculations when states are developing their LTS on disparate 
schedules, as well as for adjusting RPGs using a post-modeling 
approach. 2019 Guidance at 47-48.
---------------------------------------------------------------------------

    For the second implementation period, the RPGs are set for 2028. 
RPGs are not enforceable targets, 40 CFR 51.308(f)(3)(iii); rather, 
they ``provide a way for the states to check the projected outcome of 
the [long-term strategy] against the goals for visibility 
improvement.'' 2019 Guidance at 46. While states are not legally 
obligated to achieve the visibility conditions described in their RPGs, 
Sec.  51.308(f)(3)(i) requires that ``[t]he long-term strategy and the 
RPG must provide for an improvement in visibility for the most impaired 
days since the baseline period and ensure no degradation in visibility 
for the clearest days since the baseline period.'' Thus, states are 
required to have emission reduction measures in their LTS that are 
projected to achieve visibility conditions on the most impaired days 
that are better than the baseline period and shows no degradation on 
the clearest days compared to the clearest days from the baseline 
period. The baseline period for the purpose of this comparison is the 
baseline visibility condition--the annual average visibility condition 
for the period 2000-2004. See 40 CFR 51.308(f)(1)(i), 82 FR at 3097-98.
    So that RPGs may also serve as a metric for assessing the amount of 
progress a state is making towards the national visibility goal, the 
RHR requires states with Class I Areas to compare the 2028 RPG for the 
most impaired days to the corresponding point on the URP line 
(representing visibility conditions in 2028 if visibility were to 
improve at a linear rate from conditions in the baseline period of 
2000-2004 to natural visibility conditions in 2064). If the most 
impaired days RPG in 2028 is above the URP (i.e., if visibility 
conditions are improving more slowly than the rate described by the 
URP), each state that contributes to visibility impairment in the Class 
I Area must demonstrate, based on the four-factor analysis required 
under 40 CFR 51.308(f)(2)(i), that no additional emission reduction 
measures would be reasonable to include in its LTS. 40 CFR 
51.308(f)(3)(ii). To this end, 40 CFR 51.308(f)(3)(ii) requires that 
each state contributing to visibility impairment in a Class I Area that 
is projected to improve more slowly than the URP provide ``a robust 
demonstration, including documenting the criteria used to determine 
which sources or groups [of] sources were evaluated and how the four 
factors required by paragraph (f)(2)(i) were taken into consideration 
in selecting the measures for inclusion in its long-term strategy.'' 
The 2019 Guidance provides suggestions about how such a ``robust 
demonstration'' might be conducted. See 2019 Guidance at 50-51.
    The 2017 RHR, 2019 Guidance, and 2021 Clarifications Memo also 
explain that projecting an RPG that is on or below the URP based on 
only on-the-books and/or on-the-way control measures (i.e., control 
measures already required or anticipated before the four-factor 
analysis is conducted) is not a ``safe harbor'' from the CAA's and 
RHR's requirement that all states must conduct a four-factor analysis 
to determine what emission reduction measures constitute reasonable 
progress. The URP is a planning metric used to gauge the amount of 
progress made thus far and the amount left before reaching natural 
visibility conditions. However, the URP

[[Page 186]]

is not based on consideration of the four statutory factors and 
therefore cannot answer the question of whether the amount of progress 
being made in any particular implementation period is ``reasonable 
progress.'' See 82 FR at 3093, 3099-3100; 2019 Guidance at 22; 2021 
Clarifications Memo at 15-16.

E. Monitoring Strategy and Other State Implementation Plan Requirements

    Section 51.308(f)(6) requires states to have certain strategies and 
elements in place for assessing and reporting on visibility. Individual 
requirements under this subsection apply either to states with Class I 
Areas within their borders, states with no Class I Areas but that are 
reasonably anticipated to cause or contribute to visibility impairment 
in any Class I Area, or both. A state with Class I Areas within its 
borders must submit with its SIP revision a monitoring strategy for 
measuring, characterizing, and reporting Regional Haze visibility 
impairment that is representative of all Class I Areas within the 
state. SIP revisions for such states must also provide for the 
establishment of any additional monitoring sites or equipment needed to 
assess visibility conditions in Class I Areas, as well as reporting of 
all visibility monitoring data to the EPA at least annually. Compliance 
with the monitoring strategy requirement may be met through a state's 
participation in the Interagency Monitoring of Protected Visual 
Environments (IMPROVE) monitoring network, which is used to measure 
visibility impairment caused by air pollution at the 156 Class I Areas 
covered by the visibility program. 40 CFR 51.308(f)(6), (f)(6)(i), 
(f)(6)(iv). The IMPROVE monitoring data is used to determine the 20% 
most anthropogenically impaired and 20% clearest sets of days every 
year at each Class I Area and tracks visibility impairment over time.
    All states' SIPs must provide for procedures by which monitoring 
data and other information are used to determine the contribution of 
emissions from within the state to Regional Haze visibility impairment 
in affected Class I Areas. 40 CFR 51.308(f)(6)(ii), (iii). Section 
51.308(f)(6)(v) further requires that all states' SIPs provide for a 
statewide inventory of emissions of pollutants that are reasonably 
anticipated to cause or contribute to visibility impairment in any 
Class I Area; the inventory must include emissions for the most recent 
year for which data are available and estimates of future projected 
emissions. States must also include commitments to update their 
inventories periodically. The inventories themselves do not need to be 
included as elements in the SIP and are not subject to the EPA review 
as part of the Agency's evaluation of a SIP revision.\28\ All states' 
SIPs must also provide for any other elements, including reporting, 
recordkeeping, and other measures, that are necessary for states to 
assess and report on visibility. 40 CFR 51.308(f)(6)(vi). Per the 2019 
Guidance, a state may note in its regional Haze SIP that its compliance 
with the Air Emissions Reporting Rule (AERR) in 40 CFR part 51, subpart 
A satisfies the requirement to provide for an emissions inventory for 
the most recent year for which data are available. To satisfy the 
requirement to provide estimates of future projected emissions, a state 
may explain in its SIP how projected emissions were developed for use 
in establishing RPGs for its own and nearby Class I Areas.\29\
---------------------------------------------------------------------------

    \28\ See ``Step 8: Additional requirements for regional haze 
SIPs'' in 2019 Regional Haze Guidance at 55.
    \29\ Id.
---------------------------------------------------------------------------

    Separate from the requirements related to monitoring for Regional 
Haze purposes under 40 CFR 51.308(f)(6), the RHR also contains a 
requirement at Sec.  51.308(f)(4) related to any additional monitoring 
that may be needed to address visibility impairment in Class I Areas 
from a single source or a small group of sources. This is called 
``reasonably attributable visibility impairment.'' \30\ Under this 
provision, if the EPA or the FLM of an affected Class I Area has 
advised a state that additional monitoring is needed to assess 
reasonably attributable visibility impairment, the state must include 
in its SIP revision for the second implementation period an appropriate 
strategy for evaluating such impairment.
---------------------------------------------------------------------------

    \30\ The EPA's visibility protection regulations define 
``reasonably attributable visibility impairment'' as ``visibility 
impairment that is caused by the emission of air pollutants from 
one, or a small number of sources.'' 40 CFR 51.301.
---------------------------------------------------------------------------

F. Requirements for Periodic Reports Describing Progress Towards the 
Reasonable Progress Goals

    Section 51.308(f)(5) requires a state's Regional Haze SIP revision 
to address the requirements of paragraphs 40 CFR 51.308(g)(1) through 
(5) so that the plan revision due in 2021 will serve also as a progress 
report addressing the period since submission of the progress report 
for the first implementation period. The Regional Haze progress report 
requirement is designed to inform the public and the EPA about a 
state's implementation of its existing LTS and whether such 
implementation is in fact resulting in the expected visibility 
improvement. See 81 FR 26942, 26950 (May 4, 2016), (82 FR at 3119, 
January 10, 2017). To this end, every state's SIP revision for the 
second implementation period is required to describe the status of 
implementation of all measures included in the state's LTS, including 
BART and reasonable progress emission reduction measures from the first 
implementation period, and the resulting emissions reductions. 40 CFR 
51.308(g)(1) and (2).
    A core component of the progress report requirements is an 
assessment of changes in visibility conditions on the clearest and most 
impaired days. For second implementation period progress reports, Sec.  
51.308(g)(3) requires states with Class I Areas within their borders to 
first determine current visibility conditions for each Area on the most 
impaired and clearest days, 40 CFR 51.308(g)(3)(i)(B), and then to 
calculate the difference between those current conditions and baseline 
(2000-2004) visibility conditions in order to assess progress made to 
date. See 40 CFR 51.308(g)(3)(ii)(B). States must also assess the 
changes in visibility impairment for the most impaired and clearest 
days since they submitted their first implementation period progress 
reports. See 40 CFR 51.308(g)(3)(iii)(B), (f)(5). Since different 
states submitted their first implementation period progress reports at 
different times, the starting point for this assessment will vary state 
by state.
    Similarly, states must provide analyses tracking the change in 
emissions of pollutants contributing to visibility impairment from all 
sources and activities within the state over the period since they 
submitted their first implementation period progress reports. See 40 
CFR 51.308(g)(4), (f)(5). Changes in emissions should be identified by 
the type of source or activity. Section 51.308(g)(5) also addresses 
changes in emissions since the period addressed by the previous 
progress report and requires states' SIP revisions to include an 
assessment of any significant changes in anthropogenic emissions within 
or outside the state. This assessment must include an explanation of 
whether these changes in emissions were anticipated and whether they 
have limited or impeded progress in reducing emissions and improving 
visibility relative to what the state projected based on its LTS for 
the first implementation period.

G. Requirements for State and Federal Land Manager Coordination

    CAA section 169A(d) requires that before a state holds a public 
hearing on a proposed Regional Haze SIP revision, it must consult with 
the appropriate

[[Page 187]]

FLM or FLMs; pursuant to that consultation, the state must include a 
summary of the FLMs' conclusions and recommendations in the notice to 
the public. Consistent with this statutory requirement, the RHR also 
requires that states ``provide the [FLM] with an opportunity for 
consultation, in person and at a point early enough in the State's 
policy analyses of its long-term strategy emission reduction obligation 
so that information and recommendations provided by the [FLM] can 
meaningfully inform the State's decisions on the long-term strategy.'' 
40 CFR 51.308(i)(2). Consultation that occurs 120 days prior to any 
public hearing or public comment opportunity will be deemed ``early 
enough,'' but the RHR provides that in any event the opportunity for 
consultation must be provided at least 60 days before a public hearing 
or comment opportunity. This consultation must include the opportunity 
for the FLMs to discuss their assessment of visibility impairment in 
any Class I Area and their recommendations on the development and 
implementation of strategies to address such impairment. 40 CFR 
51.308(i)(2). In order for the EPA to evaluate whether FLM consultation 
meeting the requirements of the RHR has occurred, the SIP submission 
should include documentation of the timing and content of such 
consultation. The SIP revision submitted to the EPA must also describe 
how the state addressed any comments provided by the FLMs. 40 CFR 
51.308(i)(3). Finally, a SIP revision must provide procedures for 
continuing consultation between the state and FLMs regarding the 
state's visibility protection program, including development and review 
of SIP revisions, five-year progress reports, and the implementation of 
other programs having the potential to contribute to impairment of 
visibility in Class I Areas. 40 CFR 51.308(i)(4).

V. The EPA's Evaluation of Kansas's Regional Haze Submission for the 
Second Implementation Period

A. Background on Kansas's First Implementation Period SIP Submission

    Kansas submitted its Regional Haze SIP for the first implementation 
period to the EPA on October 26, 2009. The EPA approved Kansas's first 
implementation period Regional Haze SIP submission on December 27, 2011 
(76 FR 80754, December 27, 2011). The requirements for Regional Haze 
SIPs for the first implementation period are contained in 40 CFR 
51.308(d) and (e). Pursuant to 40 CFR 51.308(g), Kansas was also 
responsible for submitting a five-year progress report as a SIP 
revision for the first implementation period, which it did on March 10, 
2015. The EPA approved the progress report into Kansas's SIP on 
September 14, 2015 (80 FR 55030, September 14, 2015).

B. Kansas's Second Implementation Period SIP Submission and the EPA's 
Evaluation

    In accordance with CAA sections 169A and the RHR at 40 CFR 
51.308(f),51.308(g), and 51.308(i), on July 28, 2021, Kansas submitted 
a revision to Kansas's SIP to address its Regional Haze obligations for 
the second implementation period, which runs through 2028. Kansas made 
its 2021 Regional Haze SIP submission available for public comment on 
May 27, 2021. Kansas received and responded to public comments and 
included both the comments and responses to those comments in its 
submission.
    The following sections describe Kansas's SIP submission. This 
document also contains EPA's evaluation to determine if Kansas's 
submission meets all of the applicable requirements of the CAA and RHR 
for the second implementation period of the Regional Haze program.

C. Identification of Class I Areas

    Section 169A(b)(2) of the CAA requires each state in which any 
Class I Area is located or ``the emissions from which may reasonably be 
anticipated to cause or contribute to any impairment of visibility'' in 
a Class I Area to have a plan for making reasonable progress toward the 
national visibility goal. The RHR implements this statutory requirement 
at 40 CFR 51.308(f), which provides that each state's plan ``must 
address Regional Haze in each mandatory Class I Federal Area located 
within the State and in each mandatory Class I Federal Area located 
outside the State that may be affected by emissions from within the 
State,'' and (f)(2), which requires each state's plan to include a LTS 
that addresses Regional Haze in such Class I Areas.
    The EPA explained in the 1999 RHR preamble that the CAA section 
169A(b)(2) requirement that states submit SIPs to address visibility 
impairment establishes ``an `extremely low triggering threshold' in 
determining which States should submit SIPs for regional haze.'' 64 FR 
at 35721. In concluding that each of the contiguous 48 states and the 
District of Columbia meet this threshold,\31\ the EPA relied on ``a 
large body of evidence demonstrat[ing] that long-range transport of 
fine PM contributes to regional haze,'' id., including modeling studies 
that ``preliminarily demonstrated that each State not having a Class I 
Area had emissions contributing to impairment in at least one downwind 
Class I Area.'' Id. at 35722. In addition to the technical evidence 
supporting a conclusion that each state contributes to existing 
visibility impairment, the EPA also explained that the second half of 
the national visibility goal--preventing future visibility impairment--
requires having a framework in place to address future growth in 
visibility-impairing emissions and makes it inappropriate to 
``establish criteria for excluding States or geographic areas from 
consideration as potential contributors to regional haze visibility 
impairment.'' Id. at 35721. Thus, the EPA concluded that the agency's 
``statutory authority and the scientific evidence are sufficient to 
require all States to develop regional haze SIPs to ensure the 
prevention of any future impairment of visibility, and to conduct 
further analyses to determine whether additional control measures are 
needed to ensure reasonable progress in remedying existing impairment 
in downwind Class I Areas.'' Id. at 35722. EPA's 2017 revisions to the 
RHR did not disturb this conclusion. See 82 FR at 3094.
---------------------------------------------------------------------------

    \31\ The EPA determined that ``there is more than sufficient 
evidence to support our conclusion that emissions from each of the 
48 contiguous states and the District of Columba may reasonably be 
anticipated to cause or contribute to visibility impairment in a 
Class I Area.'' 64 FR at 35721. Hawaii, Alaska, and the U.S. Virgin 
Islands must also submit Regional Haze SIPs because they contain 
Class I Areas.
---------------------------------------------------------------------------

    Kansas contains no Class I Areas. However, in Kansas's Regional 
Haze plan, Kansas lists seven Class I Areas: Upper Buffalo Wilderness 
Area, Arkansas; Hercules-Glades Wilderness Area, Missouri; Mingo 
Wilderness Area, Missouri; Salt Creek Wilderness Area, New Mexico; 
Wheeler Peak Wilderness Area, New Mexico; White Mountain Wilderness 
Area, New Mexico; and Wichita Mountains Wilderness Area, Oklahoma; as 
``Kansas-related Class I Areas,\32\ i.e., Class I Areas potentially 
affected by Kansas emissions. To make this determination, Kansas used 
the results from the CenSARA 2018 area of influence (AOI) analysis. The 
AOI analysis is a back-trajectory technique that identifies visibility 
impairment contributions from individual major point sources. The EPA 
agrees that the CenSARA AOI information is a

[[Page 188]]

technically sound method for identifying Areas that are potentially 
affected by Kansas emissions. The EPA also agrees that the seven Class 
I Areas identified by Kansas are potentially affected by Kansas's 
emissions.
---------------------------------------------------------------------------

    \32\ ``Related Class I Areas'' is not a term used by the EPA, 
nor is it in CAA, the RHR, or any EPA guidance. Kansas coined the 
term in their submission.
---------------------------------------------------------------------------

    In their second planning period submission, Kansas also opted to 
analyze the visibility impacts from Kansas, and compare those to 
visibility impacts from other states also impacting the same seven 
Class I Areas. That analysis showed seventeen states having more 
visibility impact on the seven Class I Areas compared to Kansas. Kansas 
additionally states that its emissions have an insignificant visibility 
impact in the seven Class I Areas it identified. The EPA notes that 
while Kansas's analysis shows it has less of a visibility impact than 
other states in the seven Class I Areas it identified, Kansas also 
showed that its sources do, in fact, impact visibility in these seven 
Class I Areas. As stated previously, the threshold for visibility 
impact on Class I Areas is low. Therefore, a small visibility impact on 
any of the Class I Areas identified by Kansas as being impacted by its 
emissions is sufficient to trigger the regional haze requirements to 
evaluate sources for control measures considering the four factors.

D. Regional Haze Rule Provisions That Do Not Apply to States With No 
Class I Areas

    As noted above, Kansas emissions potentially impact visibility in 
seven out-of-state Class I Areas. However, Kansas does not contain any 
Class I Areas. Therefore, a number of RHR provisions are not applicable 
to the Kansas SIP submission and the EPA will not evaluate the Kansas 
regional haze SIP submission for compliance with those provisions.
    The following RHR provisions do not apply to the Kansas SIP:
    <bullet> Sec.  51.308(f)(1)--Calculations of baseline, current, and 
natural visibility conditions; progress to date; and the uniform rate 
of progress. The entirety of the provisions in Sec.  51.308(f)(1), 
including 51.308(f)(i) to 51.308(f)(vi) only contain regulatory 
requirements for states with Class I Areas.
    <bullet> Sec.  51.308(f)(3)--Reasonable progress goals. Sec.  
51.308(f)(3)(i), 51.308(f)(3)(ii)(A), 51.308(f)(3)(iii), and 
51.308(f)(3)(iv) only contain regulatory requirements for states with 
Class I Areas.
    <bullet> Sec.  51.308(f)(4)--Additional monitoring to assess 
reasonably attributable visibility impairment (RAVI). This provision 
could in theory apply to all states. However, there are no RAVI 
monitoring requirements for Kansas. Therefore, this provision is not 
applicable to the Kansas SIP.
    <bullet> Sec.  51.308(f)(6)--Monitoring strategy and other 
implementation plan requirements. Sec.  51.308(f)(6), 51.308(f)(6)(i), 
51.308(f)(6)(ii), and 51.308(f)(6)(iv) only contain regulatory 
requirements for states with Class I Areas.
    <bullet> Sec.  51.308(g)--Requirements for periodic reports 
describing progress towards the reasonable progress goals. The RHR at 
Sec.  51.308(f)(5) requires second planning period SIPs to address 
certain progress report provisions within Sec.  51.308(g). However, 
Sec.  51.308(g)(3) only contains regulatory requirements for states 
with Class I Areas.

E. Calculations of Baseline, Current, and Natural Visibility 
Conditions; Progress to Date; and the Uniform Rate of Progress

    Section 51.308(f)(1) requires states to determine the following for 
``each mandatory Class I Federal Area located within the State'': 
baseline visibility conditions for the most impaired and clearest days, 
natural visibility conditions for the most impaired and clearest days, 
progress to date for the most impaired and clearest days, the 
differences between current visibility conditions and natural 
visibility conditions, and the URP. This section also provides the 
option for states to propose adjustments to the URP line for a Class I 
Area to account for visibility impacts from anthropogenic sources 
outside the United States and/or the impacts from wildland prescribed 
fires that were conducted for certain, specified objectives. 40 CFR 
51.308(f)(1)(vi)(B).
    These requirements only apply to states with Class I Areas. Because 
Kansas does not have any Class I Areas, these statutory requirements do 
not apply to Kansas.

F. Long-Term Strategy for Regional Haze

a. Four-Factor Analysis
    Each state having a Class I Area within its borders or emissions 
that may affect visibility in a Class I Area must develop a LTS for 
making reasonable progress towards the national visibility goal. CAA 
section 169A(b)(2)(B). As explained in the Background section of this 
document, reasonable progress is achieved when all states contributing 
to visibility impairment in a Class I Area are implementing the 
measures determined--through application of the four statutory factors 
to sources of visibility impairing pollutants--to be necessary to make 
reasonable progress. 40 CFR 51.308(f)(2)(i). Each state's LTS must 
include the enforceable emission limitations, compliance schedules, and 
other measures that are necessary to make reasonable progress. 40 CFR 
51.308(f)(2). All new (i.e., additional) measures that are the outcome 
of four-factor analyses are necessary to make reasonable progress and 
must be in the LTS. If the outcome of a four-factor analysis and other 
measures necessary to make reasonable progress is that no new measures 
are reasonable for a source, that source's existing measures are 
necessary to make reasonable progress, unless the state can demonstrate 
that the source will continue to implement those measures and will not 
increase its emission rate. Existing measures that are necessary to 
make reasonable progress must also be in the LTS. In developing its 
LTS, a state must also consider the five additional factors in Sec.  
51.308(f)(2)(iv). As part of its reasonable progress determinations, 
the state must describe the criteria used to determine which sources or 
group of sources were evaluated (i.e., subjected to four-factor 
analysis) for the second implementation period and how the four factors 
were taken into consideration in selecting the emission reduction 
measures for inclusion in the LTS. 40 CFR 51.308(f)(2)(iii).
    In its SIP submission, Kansas included information on the emissions 
impacts of numerous sources in Kansas on various Class I Areas, but did 
not select any sources, did not conduct any four-factor analysis, and 
did not analyze possible efficiency improvements for sources' existing 
measures. However, Kansas's own submission lists one hundred twenty-
eight (128) sources in Kansas with non-zero visibility impacts on at 
least one Class I Area, and when SO<INF>2</INF> and NO<INF>X</INF> 
emissions were considered together, impacts from individual Kansas 
sources ranged from 0.01% to 0.84% of the total estimated visibility 
impact.\33\ The highest impacting sources based on the AOI metric used 
by Kansas \34\ are Sunflower Electric-Holcomb, KCP&L-La Cygne, Birla 
Carbon USA, Kansas City BPU-Nearman.\35\
---------------------------------------------------------------------------

    \33\ Based upon the CenSARA AOI work. See the July 28th, 2021 
Kansas submission, Appendix 6, included in the docket for this 
action.
    \34\ AOI is one of several methods to estimate the visibility 
impact of sources. Different methods could have different rankings. 
AOI is an acceptable method.
    \35\ The EPA is not determining that these four sources would 
need to be selected. The EPA is highlighting that visibility 
impacting sources exist to be selected. Kansas could also have a 
reasonable basis to select a different, smaller, or larger set of 
sources.

---------------------------------------------------------------------------

[[Page 189]]

    In its SIP submission, Kansas provides several reasons why it 
believes it is reasonable to not select sources for four-factor 
analyses, none of which are based in statute or the Regional Haze 
regulations. For example, Kansas believes there is an ``emission 
control inequity'' between Kansas and surrounding states. Therefore, 
Kansas suggests it is unfair to require the state to select sources and 
conduct four-factor analyses in order to determine if existing limits 
and/or controls are sufficient, or if additional controls are needed 
for reasonable progress. Kansas believes that surrounding states should 
first match Kansas's emission reductions before Kansas is required to 
consider further controls. However, there is ample information 
presented by the state to show that sources in Kansas do impact nearby 
Class I Areas and the state could have selected the visibility 
impairing sources in Kansas for further analysis. This fact remains 
true regardless of whether a neighboring state contributes more. 
Neither the statute nor the RHR contemplate ``emission control 
inequity'' as a justification for a state not to select sources and 
evaluate existing and potential control measures, considering the four 
statutory factors.
    As stated above, impacts from individual Kansas's sources ranged 
from 0.01% to 0.84% of the total estimated impact.\36\ Moreover, the 
2017 RHR recognized the possibility that smaller in-state sources may 
need to be selected and evaluated for control measures as a part of the 
reasonable progress analysis in order to address the state's visibility 
impact to Class I Areas. This was further clarified in the 2021 
Clarifications memo where the EPA stated a ``state should not fail to 
address its many relatively low-impact sources merely because it only 
has such sources and another state has even more low-impact sources 
and/or some high impact sources.'' \37\ States should not use large 
out-of-state sources to exclude contributions from relatively smaller 
but still important in-state sources.\38\ States with relatively small 
sources compared to their neighbors should nonetheless select their 
largest in-state sources.\39\
---------------------------------------------------------------------------

    \36\ Based upon the CenSARA AOI work. See the July 28th, 2021 
Kansas submission, Appendix 6, included in the docket for this 
action. For Hercules Glades Wilderness Area, Missouri: Arkansas and 
Missouri each have greater than twenty-five percent impact; 
Oklahoma, Illinois, Texas, and Kentucky each have between ten and 
four percent impact; and Iowa, Kansas, Tennesse, Louisiana, and 
Nebraska each have between three and one percent impact.
    \37\ Responses to Comments on Protection of Visibility: 
Amendments to Requirements for States Plans; Proposed Rule (81 FR 
26942, May 4, 2016) at 87-88, available at https://www.regulations.gov/document/EPA-HQ-OAR-2015-0531-0635.
    \38\ 2021 Clarifications Memo at 4.
    \39\ Id.
---------------------------------------------------------------------------

    Therefore, despite the fact that surrounding states contribute a 
larger percentage of visibility impairment to a specific Class I Area 
compared to Kansas, that does not mean that Kansas's contributions to 
visibility impairment are insignificant. On the contrary, the fact that 
Kansas contributes to visibility impacts to Class I Areas, even at the 
levels that it does, is evidence that sources in Kansas should be 
evaluated, including consideration of the four factors, to determine 
whether cost effective controls for those sources exist and to 
determine measures that are necessary to make reasonable progress.
    Further, the national goal set by Congress outlines both the 
remedying of any existing visibility impairment, and also preventing 
any future visibility impairment. CAA section 169A(a). In addition to 
not selecting sources for a four-factor analysis, Kansas also did not 
evaluate whether the continued implementation of a source's existing 
measures is necessary for reasonable progress. Kansas therefore did not 
provide a reasonable rationale to support its conclusion that for the 
second planning period, no additional measures are necessary for its 
LTS, despite outlining seven Class I Areas where its emissions impact 
visibility.
    Kansas also argues that because of the SO<INF>2</INF> reductions it 
has achieved in the first planning period compared to other states, 
Kansas's contribution to impairment in Class I Areas is therefore 
insignificant. The EPA acknowledges that Kansas made significant 
reductions in SO<INF>2</INF> emissions in the first planning period and 
that surrounding states have a larger total of SO<INF>2</INF> 
emissions, but neither the Regional Haze Rule nor the CAA allow a state 
to not select sources, nor consider the four factors, in reliance on 
their previous planning period reductions or due to higher emissions in 
other states. This was further clarified in the 2021 Clarifications 
memo where the EPA stated that a state should generally not reject 
cost-effective and otherwise reasonable controls merely because there 
have been emission reductions since the first planning period owing to 
other ongoing air pollution control programs or merely because 
visibility is otherwise projected to improve at Class I areas.\40\
---------------------------------------------------------------------------

    \40\ 2021 Clarifications Memo at 13.
---------------------------------------------------------------------------

    A source's visibility impact relative to a state's total 
contribution to visibility impairment is relevant to ensuring that a 
state is addressing its own contribution regardless of what other 
states are doing.\41\
---------------------------------------------------------------------------

    \41\ 2021 Clarifications Memo at 15.
---------------------------------------------------------------------------

    Therefore, the EPA does not find it reasonable for Kansas to not 
select sources and evaluate potential control measures, without 
consider the four factors in the CAA and EPA's regulations to determine 
what cost-effective measures, if any, are necessary to make reasonable 
progress toward the national goal, and thus need to be a part of the 
state's LTS.
    Kansas failed to ``evaluate and determine the emission reduction 
measures that are necessary to make reasonable progress by considering 
the costs of compliance, the time necessary for compliance, the energy 
and non-air quality environmental impacts of compliance, and the 
remaining useful life of any potentially affected anthropogenic source 
of visibility impairment,'' as required by 40 CFR 51.308(f)(2)(i) and 
CAA section 169A(g)(1). The EPA outlined this fact during the public 
comment period of Kansas's draft SIP submittal.\42\ In Kansas's 
response to our comments, it declaratively states it cannot consider 
the four factors without selecting sources. Providing a long-term 
strategy for making reasonable progress toward the national goal, 
including consideration of the four factors, is a statutory requirement 
for every state, one that does not go away by a state simply deciding, 
without analyses, that doing so would lead to insignificant 
results.\43\ The EPA discusses a state not selecting sources in both 
the 2019 Guidance and the 2021 Clarification Memo. As the EPA stated in 
the 2019 Guidance, a state must explain how the decision to bring forth 
no sources is consistent with the CAA's requirements that SIPs make 
reasonable progress toward the national goal of preventing future and 
remedying existing anthropogenic visibility impairment, and that 
reasonable progress must be determined by considering the four 
statutory factors.\44\ EPA then provides

[[Page 190]]

an example of how a state could make such a demonstration.\45\
---------------------------------------------------------------------------

    \42\ See June 28, 2021 letter from Dana Skelley, Director Air 
and Radiation Division, EPA Region 7 to Douglas Watson Air 
Monitoring and Planning Section Chief, KDHE. The letter is titled 
``EPA Comments on KS 2nd Round RH SIP LETTERHEAD.pdf'' in the docket 
for this action.
    \43\ See CAA sections 169A(b)(2)(B), 169A(g)(1).
    \44\ Guidance on Regional Haze State Implementation Plans for 
the Second Implementation Period, at 10. https://www.epa.gov/visibility/guidance-regional-haze-state-implementation-plans-second-implementation-period. The EPA Office of Air Quality Planning and 
Standards, Research Triangle Park (August 20, 2019).
    \45\ Id.
---------------------------------------------------------------------------

    The EPA further explained in the 2021 Clarification Memo that a 
state that brings no sources forward for analysis of control measures 
must explain how doing so is consistent with the statutory and 
regulatory requirements for SIPs to contain the measures necessary to 
make reasonable progress. In this case, the state is not merely 
asserting that its sources need no further controls to make reasonable 
progress, but that even identifying sources to analyze is a futile 
exercise because it is obvious that a four-factor analysis would not 
result in any new controls.\46\ Kansas has not adequately supported 
this assertion. To reach a determination that existing measures are 
sufficient for Reasonable Progress, the four factors must be 
considered. Kansas has not provided a reasoned explanation for how not 
selecting sources and not considering the four factors, is consistent 
with the statute and the RHR. Further, Kansas has not shown that 
further reductions of visibility impairing pollutants are not 
reasonable, and has not explained how its approach, which fails to 
consider the four factors, is consistent with the CAA and RHR. The 
State is required to consider the four factors to determine what, if 
any, measures are necessary for reasonable progress and must be 
included in the state's long-term strategy and regulatory portion of 
the SIP submission. For Kansas, given the state has numerous sources 
emitting visibility-impairing pollutants that may impact Class I Areas, 
the State's approach is unsupportable.
---------------------------------------------------------------------------

    \46\ Clarifications Regarding Regional Haze State Implementation 
Plans for the Second Implementation Period at 5 and 6. https://www.epa.gov/system/files/documents/2021-07/clarifications-regarding-regional-haze-state-implementation-plans-for-the-second-implementation-period.pdf. The EPA Office of Air Quality Planning 
and Standards, Research Triangle Park (July 8, 2021).
---------------------------------------------------------------------------

    Kansas failed to consider the four statutory factors for any 
sources, thereby not providing the required analysis to support a 
conclusion that no additional measures are necessary for reasonable 
progress in its LTS. Therefore, Kansas does not establish that its 
second planning period SIP submission contains the emission limits, 
schedules of compliance, and other measures as may be necessary to make 
reasonable progress toward meeting the national visibility goal.\47\ 
Therefore, the SIP submission does not meet the regional haze 
requirements, nor requirements of the CAA. Specifically, as described 
in detail above, the SIP submission does not meet the statutory 
requirements in CAA section 169A(b)(2)(B) to contain a LTS for making 
reasonable progress; the CAA section 169A(g)(1) requirement to consider 
the four factors in determining reasonable progress; and the CAA 
section 169A(b)(2) requirement for the SIP to contain the emissions 
limits, schedules of compliance and other measures as may be necessary 
to make reasonable progress toward meeting the national goal. In 
addition, the lack of source selection, evaluation of emissions 
measures considering the four factors, and related inadequate 
documentation of the analyses results in not meeting the regulatory 
requirements in Sec.  51.308(f)(2), 51.308(f)(2)(i), and 
51.308(f)(2)(iii). Therefore, the EPA is proposing to disapprove 
Kansas's Regional Haze SIP submission.
---------------------------------------------------------------------------

    \47\ See 40 CFR 51.308(f)(2).
---------------------------------------------------------------------------

b. Additional Long-Term Strategy Requirements
    The consultation requirements of Sec.  51.308(f)(2)(ii) provides 
that states must consult with other states that are reasonably 
anticipated to contribute to visibility impairment in a Class I Area to 
develop coordinated emission management strategies containing the 
emission reductions measures that are necessary to make reasonable 
progress. Section 51.308(f)(2)(ii)(A) and (B) require states to 
consider the emission reduction measures identified by other states as 
necessary for reasonable progress and to include agreed upon measures 
in their SIPs, respectively. Section 51.308(f)(2)(ii)(C) speaks to what 
happens if states cannot agree on what measures are necessary to make 
reasonable progress.
    Kansas included documentation of its CenSARA calls that occurred 
from January 2020 to July 2020. Kansas contacted the states of Colorado 
and New Mexico in May 2020. Kansas's consultation documentation is free 
of any state disagreeing with or providing comment on Kansas's approach 
on its LTS. However, for the reasons outlined throughout this document, 
the EPA cannot approve Kansas's consultation requirements because the 
consultation was based on a SIP that did not meet the required 
statutory elements.
    Section 51.308(f)(2)(iii) also requires that the emissions 
information considered to determine the measures that are necessary to 
make reasonable progress include information on emissions for the most 
recent year for which the state has submitted triennial emissions data 
to the EPA (or a more recent year), with a 12-month exemption period 
for newly submitted data.
    Kansas included emissions information from the most recent year in 
its submittal.\48\ Kansas included emission totals for NH<INF>3</INF>, 
PM<INF>2.5</INF>, PM<INF>10</INF>, SO<INF>2</INF>, VOC, and 
NO<INF>X</INF>. Kansas grouped the emissions by: Natural Sources, Wild 
and Prescribed Fires, Residential Wood Combustion, Agricultural Fires, 
Agricultural NH3 Emissions, the Oil and Gas Industry, Electric 
Generating Units (EGUs), Industry other than Oil and Gas and EGUs, 
Airports, Rail, Marine, Onroad, and Nonroad. Kansas included emissions 
2011 through 2017. Kansas used the National Emissions Inventory for 
2011, 2014, 2017; the EPA 2016 modeling inventory for 2016; and the 
Kansas Emission Inventory for 2012, 2013, and 2017.\49\
---------------------------------------------------------------------------

    \48\ See the July 28th, 2021 Kansas submission, Appendix 9, 
included in the docket for this action.
    \49\ Kansas did not have emission inventories for 2015 and 2018 
and instead estimated emissions using a statistical method, the 
``least squares'' method. Kansas does not explain in its submission 
why it is missing data from 2015 and 2018.

                                                       Table 1--Kansas Anthropogenic NOX Emissions
--------------------------------------------------------------------------------------------------------------------------------------------------------
                  Section                             Pollutant                2014            2015            2016            2017            2018
--------------------------------------------------------------------------------------------------------------------------------------------------------
Oil and Gas................................  NOX........................          62,100          57,172          49,832          52,141          46,008
Other Industry.............................  NOX........................          47,617          45,064          41,759          41,460          38,531
Onroad.....................................  NOX........................          73,361          64,648          54,097          50,897          41,264
Rail.......................................  NOX........................          29,313          26,344          21,770          23,617          19,845
EGU........................................  NOX........................          26,681          18,030          15,231          13,378          14,455
Nonroad....................................  NOX........................          32,011          28,948          25,373          23,846          20,528
Airports...................................  NOX........................           1,740           1,764           1,811           1,764           1,799
Ag Fire....................................  NOX........................           2,531           1,717             593             709             709
Residential Wood...........................  NOX........................             368             361             378             297             302

[[Page 191]]

 
Marine.....................................  NOX........................              16               8               0  ..............  ..............
--------------------------------------------------------------------------------------------------------------------------------------------------------
 From July 28th, 2021 Kansas submission, Appendix 9.


                                                       Table 2--Kansas Anthropogenic SO2 Emissions
--------------------------------------------------------------------------------------------------------------------------------------------------------
                  Section                             Pollutant                2014            2015            2016            2017            2018
--------------------------------------------------------------------------------------------------------------------------------------------------------
Other Industry.............................  SO2........................           7,352           6,904           6,381           6,157           5,671
EGU........................................  SO2........................          31,541          13,858           7,137           5,558           5,450
Airports...................................  SO2........................             176             182             192             186             194
Onroad.....................................  SO2........................             293             290             294             271             271
Ag Fire....................................  SO2........................             660             433             123             145             145
Residential Wood...........................  SO2........................             107             102             107              68              68
Oil and Gas................................  SO2........................             108              89              63              67              44
Nonroad....................................  SO2........................              59              50              37              38              27
Rail.......................................  SO2........................              18              16              14              16              14
--------------------------------------------------------------------------------------------------------------------------------------------------------
 From July 28th, 2021 Kansas submission, Appendix 9.

    As summarized above, the state provided emissions inventory 
information by sector and for individual sources for multiple years, 
including the most recent year for which the state submitted emissions 
data to the EPA in compliance with the triennial reporting requirements 
of the AERR. However, because the State did not conduct the proper 
analyses to determine what measures are necessary for reasonable 
progress, it is not clear how this emissions data was used in the 
submission to fulfill the regional haze requirements, including 
documentation of the technical basis for determining the emissions 
measures that are necessary for reasonable progress. Therefore, as 
outlined throughout this document, the EPA cannot approve the 
regulatory requirements under Sec.  51.308(f)(2)(iii) because Kansas's 
SIP did not meet the required statutory elements.

G. Reasonable Progress Goals

    Section 51.308(f)(3) contains the requirements pertaining to RPGs 
for each Class I Area. As noted previously, most of regulatory 
requirements in Sec.  51.308(f)(3) do not apply to states without Class 
I Areas. However, Sec.  51.308(f)(3)(ii)(B) requires that if a state 
contains sources that are reasonably anticipated to contribute to 
visibility impairment in a Class I Area in another state, and the RPG 
for the most impaired days in that Class I Area is above the URP, the 
upwind state must provide the same demonstration.
    At the time Kansas submitted its SIP, this provision did not apply 
because the states with Class I Areas that are affected by Kansas 
sources did not submit any RPGs that are above the respective URPs. 
Because we are disapproving the Kansas SIP, if Kansas chooses to submit 
a revised SIP to the EPA, it should re-evaluate whether 40 CFR 
51.308(f)(3)(ii)(B) applies to Kansas.

H. Monitoring Strategy and Other Implementation Plan Requirements

    Section 51.308(f)(6) specifies that each comprehensive revision of 
a state's Regional Haze SIP must contain or provide for certain 
elements, including monitoring strategies, emissions inventories, and 
any reporting, recordkeeping and other measures needed to assess and 
report on visibility. A main requirement of this subsection is for 
states with Class I Areas to submit monitoring strategies for 
measuring, characterizing, and reporting on visibility impairment. 
Section 51.308(f)(6)(ii) requires SIPs to provide for procedures by 
which monitoring data and other information are used in determining the 
contribution of emissions from within the state to Regional Haze 
visibility impairment at mandatory Class I Federal Areas both within 
and outside the state. As noted previously, most of regulatory 
requirements in Sec.  51.308(f)(6) do not apply to states without Class 
I Areas.
    However, Sec.  51.308(f)(6)(iii) and (f)(6)(v) apply to all states 
that have emissions that contribute to a Class I Area, including 
Kansas. Section 51.308(f)(6)(iii) requires SIPs to provide procedures 
by which monitoring data and other information are used in determining 
the contribution of emissions from within the State to Regional Haze 
visibility impairment at mandatory Class I Federal Areas in other 
States.
    Section 51.308(f)(6)(v) requires SIPs to provide for a statewide 
inventory of emissions of pollutants that are reasonably anticipated to 
cause or contribute to visibility impairment, including emissions for 
the most recent year for which data are available and estimates of 
future projected emissions. It also requires a commitment to update the 
inventory periodically. Section 51.308(f)(6)(v) also requires states to 
include estimates of future projected emissions and include a 
commitment to update the inventory periodically.
    Kansas generally included details on the emissions and monitoring 
data they used to estimate their visibility contribution to out-of-
state Class I Areas, to address Sec.  51.308(f)(6)(iii). To address 
Sec.  51.308(f)(6)(v), Kansas included emissions information from the 
most recent triennial inventory year available (2017) \50\. Kansas also 
included future projections for 2023 and 2028 and committed to update 
the inventory periodically.
---------------------------------------------------------------------------

    \50\ See the July 28th, 2021 Kansas submission, Appendix 9, 
included in the docket for this action.
---------------------------------------------------------------------------

    However, as mentioned above, because the State did not conduct the 
proper analyses to determine what measures are necessary for reasonable 
progress, and did not satisfy the regional haze statutory requirements, 
the EPA is not approving these regulatory requirements at this time. 
The EPA is not approving these regulatory requirements because they do 
not contain measures that strengthen the existing regional haze SIP, or 
the SIP generally.

I. Requirements for Periodic Reports Describing Progress Towards the 
Reasonable Progress Goals

    Section 51.308(f)(5) requires that periodic comprehensive revisions 
of states' Regional Haze plans also address

[[Page 192]]

the progress report requirements of 40 CFR 51.308(g)(1) through (5). 
The purpose of these requirements is to evaluate progress towards the 
applicable RPGs for each Class I Area within the state and each Class I 
Area outside the state that may be affected by emissions from within 
that state. Sections 51.308(g)(1) and (2) apply to all states and 
require a description of the status of implementation of all measures 
included in a state's first implementation period Regional Haze plan 
and a summary of the emission reductions achieved through 
implementation of those measures. Section 51.308(g)(3) applies only to 
states with Class I Areas within their borders and requires such states 
to assess current visibility conditions, changes in visibility relative 
to baseline (2000-2004) visibility conditions, and changes in 
visibility conditions relative to the period addressed in the first 
implementation period progress report.
    Section 51.308(g)(4) applies to all states and requires an analysis 
tracking changes in emissions of pollutants contributing to visibility 
impairment from all sources and sectors since the period addressed by 
the first implementation period progress report. This provision further 
specifies the year or years through which the analysis must extend 
depending on the type of source and the platform through which its 
emission information is reported. Finally, Sec.  51.308(g)(5), which 
also applies to all states, requires an assessment of any significant 
changes in anthropogenic emissions within or outside the state have 
occurred since the period addressed by the first implementation period 
progress report, including whether such changes were anticipated and 
whether they have limited or impeded expected progress towards reducing 
emissions and improving visibility.
    As noted previously, Sec.  51.308(g)(3) does not apply to states 
without Class I Areas. With respect to the rest of the Sec.  51.308(g) 
requirements, Kansas included a description of the status of the 
implementation of all measures included in Kansas's first 
implementation period Regional Haze Plan, a summary of the emissions 
reductions achieved from these measures, an analysis tracking changes 
in emissions, and an assessment of significant changes in emissions. 
However, as outlined throughout this document, because Kansas's SIP 
submission did not meet the required statutory or regulatory 
requirements, the EPA is not approving these regulatory requirements at 
this time. The EPA is not approving these regulatory requirements 
because they do not contain measures that strengthen the regional haze 
SIP, or the SIP generally.

J. Requirements for State and Federal Land Manager Coordination

    Section 169A(d) of the CAA requires states to consult with FLMs 
before holding the public hearing on a proposed Regional Haze SIP, and 
to include a summary of the FLMs' conclusions and recommendations in 
the notice to the public.''
    Section 51.308(i)(2)'s FLM consultation provision requires a state 
to provide FLMs with an opportunity for consultation that is early 
enough in the state's policy analyses of its emission reduction 
obligation so that information and recommendations provided by the 
FLMs' can meaningfully inform the state's decisions on its LTS. If the 
consultation has taken place at least 120 days before a public hearing 
or public comment period, the opportunity for consultation will be 
deemed early enough. Regardless, the opportunity for consultation must 
be provided at least sixty days before a public hearing or public 
comment period at the state level. Section 51.308(i)(2) also provides 
two substantive topics on which FLMs must be provided an opportunity to 
discuss with states: assessment of visibility impairment in any Class I 
Area and recommendations on the development and implementation of 
strategies to address visibility impairment. Section 51.308(i)(3) 
requires states, in developing their implementation plans, to include a 
description of how they addressed FLMs' comments.
    Kansas included summaries of its consultation with various FLMs. On 
January 14, 2021, the NPS deferred consultation to other FLMs. In 
February and March of 2021, Kansas had a video call and email exchanges 
with the FS. Kansas included the comments from the FS and its 
responses. On February 19, 2021, Kansas had a video call with the FWS. 
Kansas included the comments from FWS and its responses. While Kansas 
did take administrative steps to conduct consultation, if the EPA 
finalizes the disapproval of the SIP, in the process of correcting the 
deficiencies outlined above with respect to the RHR and statutory 
requirements, the state (or the EPA in the case of an eventual FIP) 
will be required to again satisfy the FLM consultation requirements 
under Sec.  51.308(i)(2). Therefore, the EPA cannot approve Kansas's 
consultation requirements because Kansas's consultation was based on a 
SIP that did not meet the required statutory and regulatory 
requirements.

VI. What action is the EPA taking?

    The EPA is proposing to disapprove the Kansas SIP submission 
relating to Regional Haze for the second planning period received on 
July 28, 2021, because the state's SIP submission fails to meet both 
the regulatory requirements of the Regional Haze Rule and the statutory 
requirements of the Clean Air Act. Specifically, because Kansas failed 
to consider the four statutory factors, thereby not including a LTS 
that includes measures necessary for reasonable progress in its second 
planning period SIP submission, Kansas's SIP submission does not 
contain the emission limits, schedules of compliance, and other 
measures as may be necessary to make reasonable progress toward meeting 
the national visibility goal. Therefore, the SIP submission does not 
meet the regional haze requirements, nor requirements of the CAA. 
Specifically, as described in detail above, the SIP submission does not 
meet the statutory requirements in CAA section 169A(b)(2)(B) to contain 
a LTS for making reasonable progress; the CAA section 169A(g)(1) 
requirement to consider the four factors in determining reasonable 
progress; and the CAA section 169A(b)(2) requirement for the SIP to 
contain the emissions limits, schedules of compliance and other 
measures as may be necessary to make reasonable progress toward meeting 
the national goal. In addition, the lack of source selection, 
evaluation of emissions measures considering the four factors, and 
related inadequate documentation results in the Kansas submission not 
meeting the regulatory requirements in Sec.  51.308(f)(2), 
51.308(f)(2)(i), and 51.308(f)(2)(iii).
    The EPA is not proposing a FIP at this time. If the EPA finalizes 
the disapproval, that will start a two-year clock for the EPA to 
propose and finalize a FIP. We are processing this as a proposed action 
because we are soliciting comments on this proposed action. Disapproval 
does not start a mandatory sanctions clock for Kansas. Final rulemaking 
will occur after consideration of any comments.

VII. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, the EPA's role is to approve state choices, 
provided that they meet the criteria of

[[Page 193]]

the CAA. This action proposes to disapprove the state submittal as not 
meeting Federal requirements and does not impose additional 
requirements. For that reason, this action:
    <bullet> Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
    <bullet> Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
    <bullet> Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> Is not subject to requirements of the National Technology 
Transfer and Advancement Act (NTTA) because this rulemaking does not 
involve technical standards; and
    <bullet> Executive Order 12898 (Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations, 59 FR 7629, Feb. 16, 1994) directs Federal agencies to 
identify and address ``disproportionately high and adverse human health 
or environmental effects'' of their actions on minority populations and 
low-income populations to the greatest extent practicable and permitted 
by law. The EPA defines environmental justice (EJ) as ``the fair 
treatment and meaningful involvement of all people regardless of race, 
color, national origin, or income with respect to the development, 
implementation, and enforcement of environmental laws, regulations, and 
policies.'' The EPA further defines the term fair treatment to mean 
that ``no group of people should bear a disproportionate burden of 
environmental harms and risks, including those resulting from the 
negative environmental consequences of industrial, governmental, and 
commercial operations or programs and policies.'' The Kansas Department 
of Health and the Environment did not evaluate EJ considerations as 
part of its SIP submittal; the CAA and applicable implementing 
regulations neither prohibit nor require such an evaluation. The EPA 
did not perform an EJ analysis and did not consider EJ in this action. 
Due to the nature of the action being taken here, this action is 
expected to have a neutral impact on the air quality of the affected 
area. Consideration of EJ is not required as part of this action, and 
there is no information in the record inconsistent with the stated goal 
of E.O. 12898 of achieving environmental justice for people of color, 
low-income populations, and Indigenous peoples.
    <bullet> This action does not have tribal implications as specified 
in Executive Order 13175. This action does not apply on any Indian 
reservation land, any other area where the EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction, or non-reservation areas of 
Indian country. Thus, Executive Order 13175 does not apply to this 
action.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: December 19, 2023.
Meghan A. McCollister,
Regional Administrator, Region 7.
[FR Doc. 2023-28384 Filed 12-29-23; 8:45 am]
BILLING CODE 6560-50-P


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>