***E.O. 12866_Supplemental Transport Rule_RIN 2060-AR01_FRM_2011-11-15- Draft – Do Not Cite, 

Quote, or Release During Review***

Summary of Interagency Working Comments on Draft Language under EO 12866 Interagency 

Review. Subject to Further Policy Review.

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 97

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

[RIN 2060-AR01]

Federal Implementation Plans for Iowa, Michigan, Missouri, 

Oklahoma, and Wisconsin and Determination for Kansas Regarding

Interstate Transport of Ozone

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

SUMMARY: In this final rule, EPA is concluding that 

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

Wisconsin significantly contribute to downwind nonattainment or 

interfere with maintenance of the 1997 ozone National Ambient 

Air Quality Standards (NAAQS)in other states. Each of these 

states except Oklahoma is already included in the annual NOX

program that was finalized in July 2011. However, this rule does 

not affect that program.

EPA is finalizing Federal Implementation Plans (FIPs) to 

address the emissions in each of these states except for Kansas, 

for which EPA is not finalizing a FIP at this time. The FIPs 

apply the requirements of the ozone season NOX program in the 

Transport Rule (Federal Implementation Plans to Reduce 

Interstate Transport of Fine Particulate Matter and Ozone in 27 

States; Correction of SIP Approvals for 22 States) to sources in

Iowa, Michigan, Missouri, Oklahoma, and Wisconsin. In addition, 

this action finalizes the budgets; associated variability 

limits, new unit set-asides, and Indian country new unit set-
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asides; and unit-level allowance allocations for each state 

under the FIPs.

DATES: This final rule is effective on [INSERT DATE 30 DAYS 

AFTER PUBLICATION IN THE FR]

ADDRESSES: EPA has established a docket for this action 

under Docket ID No. OAR-EPA–HQ–OAR–2009–0491. All documents in 

the docket are listed on the http://www.regulations.gov Web 

site. Although listed on the index, some information is not 

publicly available, e.g., CBI or other information whose 

disclosure is restricted by statute. Certain other material, 

such as copyrighted material, is not placed on the Internet and 

will be publicly available only in hard copy form. Publicly 

available docket materials are available either electronically 

through http://www.regulations.gov or in hard copy at the EPA 

Docket Center, EPA West, Room B102, 1301 Constitution Ave., NW,

Washington, DC. The Public Reading Room is open from 8:30 a.m. 

to 4:30 p.m., Monday through Friday, excluding legal holidays. 

The telephone number for the Public Reading Room is (202) 566-

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

1742. This Docket Facility is open from 8:00 a.m. to 5:30 p.m., 

Monday through Friday, excluding legal holidays. The Docket 

telephone number is (929)566-1742, fax (202) 566-1741.

FOR FURTHER INFORMATION CONTACT: For general questions

concerning this action, contact Ms. Gabrielle Stevens, Clean Air 

Markets Division, Office of Atmospheric Programs, Mail Code 

6204J, Environmental Protection Agency, 1200 Pennsylvania 

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

9252; fax number: (202) 343-2356; e-mail address:

stevens.gabrielle@epa.gov.

SUPPLEMENTARY INFORMATION:
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I. Glossary of Terms and Abbreviations

The following are abbreviations of terms used in this SNPR:

CFR Code of Federal Regulations

EGU Electric Generating Unit

FIP Federal Implementation Plan

FR Federal Register

EPA U.S. Environmental Protection Agency

ICR Information Collection Request 

NAAQS National Ambient Air Quality Standards

NODA Notice of Data Availability

NOX Nitrogen Oxides

SIP State Implementation Plan

OMB Office of Management and Budget 

PM2.5 Fine Particulate Matter, Less Than 2.5 Micrometers

PM Particulate Matter

RIA Regulatory Impact Analysis

SNPR Supplemental Notice of Proposed Rulemaking

SO2 Sulfur Dioxide

TSD Technical Support Document

II. General Information

A. Does this action apply to me?

Regulated Entities. Entities regulated by this action 

primarily are fossil fuel-fired boilers, turbines, and combined 

cycle units that serve generators that produce electricity for 

sale or cogenerate electricity for sale and steam. Regulated 

categories and entities include:

Category NAICS Code

Examples of Potentially 
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Regulated Industries

Industry 2211, 2212, 2213 Electric service providers

This table is not intended to be exhaustive, but rather to 

provide a guide for readers regarding entities likely to be 

regulated by this action. This table lists the types of entities 

which EPA is now aware could potentially be regulated by this 

action. Other types of entities not listed in this table could 

also be regulated. To determine whether your facility, company, 

business, organization, etc., is regulated by this action, you 

should carefully examine the applicability criteria in §§ 

97.404, 97.504, and 97.604 of title 40 of the Code of Federal 

Regulations. If you have questions regarding the applicability 

of this action to a particular entity, consult the person listed 

in the preceding FOR FURTHER INFORMATION CONTACT section.

B. Where can I get a copy of this document and other 

related information?

In addition to being available in the docket, an electronic 

copy of this rule will also be available on the World Wide Web.

Following signature by the EPA Administrator, a copy of this 

action will be posted on the EPA Web site at

http://www.epa.gov/crossstaterule.
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C. How is the preamble organized?

I. Glossary of Terms and Abbreviations

II. General Information

III. Executive Summary

A. EPA’s Authority for this Rule

B. Finalizing FIPs to Address Significant Contribution to 

Nonattainment and Interference with Maintenance in:

i. Iowa

ii. Michigan

iii. Missouri

iv. Oklahoma

v. Wisconsin

C. Kansas

D. Allegan County, Michigan, receptor

E. Ozone Season NOX Emission Budgets for Five States

F. Implementation of the Transport Rule NOX Ozone Season 

Trading Program

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

and Executive Order 13563: Improving Regulation and 

Regulatory Review

B. Paperwork Reduction Act

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act

E. Executive Order 13132: Federalism

F. Executive Order 13175: Consultation and Coordination

with Indian Tribal Governments

G. Executive Order 13045: Protection of Children from
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Environmental Health and Safety Risks

H. Executive Order 13211: Actions That Significantly

Affect Energy Supply, Distribution or Use

I. National Technology Transfer Advancement Act

J. Executive Order 12898: Federal Actions to Address

Environmental Justice in Minority Populations and LowIncome Populations

K. Congressional Review Act

L. Judicial Review

III. Summary

In this final rule, EPA finalizes its conclusion that Iowa, 

Kansas, Michigan, Missouri, Oklahoma, and Wisconsin 

significantly contribute to nonattainment or interfere with 

maintenance of the 1997 ozone National Ambient Air Quality 

Standards (NAAQS) in other states. These states’ final ozoneseason NOX budgets are presented and discussed in section III.E 

below, and more detailed information can be found in the 

“Determination of State Budgets for the Final Ozone Supplemental 

of the Transport Rule” TSD found in the docket for this 

rulemaking. 

In addition, EPA is finalizing FIPs to address the

interstate transport requirements of the relevant NAAQS using a 

program created in the Transport Rule1 that was finalized on July 

6, 2011 (76 FR 48208, August 8, 2011). EPA is implementing the

ozone season NOX program in the Transport Rule (with minor 

 

1 Federal Implementation Plans to Reduce Interstate 

Transport of Fine Particulate Matter and Ozone in 27 States; 

Correction of SIP Approvals for 22 States: Final Rule. Available 

on the Web at http://www.epa.gov/crossstaterule.
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revisions) as the FIPs for Iowa, Michigan, Missouri, Oklahoma, 

and Wisconsin to address the emissions identified as 

significantly contributing to nonattainment or interfering with 

maintenance with respect to the 1997 ozone NAAQS. With respect 

to Kansas, EPA is not finalizing the proposed FIP because we do 

not have the authority to do so at this time, as discussed in 

section III.C below.

As explained in the final Transport Rule preamble (76 FR 

48208), EPA improved and updated both steps of its significant 

contribution analysis from the Transport Rule proposal. EPA 

updated its modeling platforms and modeling inputs in response 

to public comments received on the proposed Transport Rule and

subsequent Notices of Data Availability (NODAs), and performed 

other standard updates. It updated and improved the modeling

platforms and modeling inputs used to identify states with 

contributions to certain downwind receptors that meet or exceed 

specified air quality thresholds. It also updated and improved 

its analysis for identifying any emissions within such states 

that constitute the state’s significant contribution to

nonattainment or interference with maintenance. Therefore, the 

results of the analysis conducted for the final Transport Rule

differed somewhat from the results of the analysis conducted for 

the proposal.

With respect to the 1997 ozone NAAQS, the analysis EPA 

conducted for the Transport Rule proposal did not identify 

Wisconsin, Iowa, and Missouri as states that significantly 

contribute to nonattainment and/or interfere with maintenance of 

the ozone NAAQS in another state. However, the analysis

conducted for the final Transport Rule showed that emissions 

from these three states interfere with maintenance of the ozone 
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NAAQS in another state. The analysis also showed that emissions 

from Missouri significantly contribute to nonattainment in 

another state. Additionally, the analysis identified two ozone

maintenance receptors that were not identified by the modeling 

conducted for the proposal. These two ozone maintenance 

receptor sites are located in Allegan County, Michigan and 

Harford County, Maryland. Five states (Iowa, Kansas, Michigan, 

Oklahoma, and Wisconsin), which EPA identified as interfering 

with maintenance problems at the Allegan County and/or Harford 

County receptors, based on modeling for the final rule, uniquely 

contribute to these receptors, i.e., absent these receptors the

states would not be covered by the Transport Rule ozone-season 

program (although the states, except for Oklahoma, are covered 

by the Transport Rule annual programs). EPA did not issue FIPs

with respect to the 1997 ozone NAAQS or finalize ozone season NOX

budgets for these states in the final Transport Rule. Instead, 

EPA published a supplemental notice of proposed rulemaking (76 

FR 40662) to provide an opportunity for public comment on our 

conclusion that these states significantly contribute to

nonattainment or interfere with maintenance of the 1997 ozone 

NAAQS.

EPA did not change its methodology between the proposed 

Transport Rule and the final Transport Rule for identifying 

upwind states that significantly contribute to nonattainment or 

interfere with maintenance in other states; nor did EPA change 

its methodology for identifying receptors of concern with

respect to maintenance of the 1997 ozone NAAQS. The final 

Transport Rule’s air quality modeling identified the new states 

and new receptors described above based on modeling using

updated input information (including emission inventories), much 
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of which was provided to EPA through public comment on the 

proposal and subsequent NODAs.

In the proposal for this supplemental rulemaking, EPA took

comment only on (a) its conclusions that the six states 

identified above have emissions that significantly contribute to 

nonattainment and/or interfere with maintenance of the 1997 

ozone NAAQS and (b) its decision to use the final Transport Rule 

programs as the FIPs to address these emissions in the six

states.

EPA did not reconsider or take comment on any aspect of the 

final Transport Rule, including any aspect of the methodology 

used to identify receptors for nonattainment; the methodology 

used to identify receptors for maintenance; the methodology used 

to identify any specific state’s significant contribution and

interference with maintenance; the methodologies used to 

establish state budgets, variability limits, and state assurance 

levels; and the methodologies used to allocate allowances to 

existing units, to establish new unit set-asides and Indian 

country new unit set-asides, and to allocate allowances in these 

set-asides. EPA provided an adequate opportunity for public 

comment on all of these issues during the comment period for the 

proposed Transport Rule and during the comment periods for the 

associated NODAs.

2 EPA received numerous comments on the 

 

2

 Notice of Data Availability Supporting Federal 

Implementation Plans to Reduce Interstate Transport of Fine 

Particulate Matter and Ozone (75 FR 53613; September 1, 2010). 

This NODA provided additional information on an updated version 

of the power sector modeling platform and data inputs EPA 

proposed to use to support the final Transport Rule.

Notice of Data Availability Supporting Federal 

Implementation Plans to Reduce Interstate Transport of Fine 

Particulate Matter and Ozone: Revisions to Emission Inventories

(75 FR 66055; October 27, 2010).
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proposed Transport Rule and on the associated NODAs and 

considered all significant comments received during the comment 

periods for these actions before finalizing the Transport Rule. 

Responses to those comments are available in the public docket 

for the final Transport Rule. 

In the proposal for this rulemaking, EPA also did not 

reconsider or take comment on the emission inventories used for 

the final Transport Rule modeling, including the emission 

inventories for the six states identified above. EPA provided 

ample opportunity for comment on these inventories during the 

comment period for the proposed Transport Rule and the comment 

periods for the NODAs associated with that proposal. 

Inventories for all states included in the modeling domain were 

made available for public comment during that process. The 

public had ample reason to comment on the inventories for these 

six states, moreover, not only because these inventories affect 

the modeling for all states in the modeling domain, but also 

because EPA was proposing to include all six states in at least 

one of the Transport Rule trading programs and the inventories 

were used in the analysis supporting that proposal. For 

instance, EPA proposed to include Kansas and Michigan in the 

ozone-season NOX, annual NOX, and annual SO2 programs; proposed to 

include Oklahoma in the ozone-season NOX program; and proposed to 

include Iowa, Missouri, and Wisconsin in the SO2 and annual NOX

programs. Commenters therefore had reason to look closely at 

all of the emission data for all six states that EPA made 

 

Notice of Data Availability for Federal Implementation 

Plans to Reduce Interstate Transport of Fine Particulate Matter 

and Ozone: Request for Comment on Alternative Allocations, 

Calculation of Assurance Provision Allowance Surrender 

Requirements, New-Unit Allocations in Indian Country, and 

Allocations by States (76 FR 1109; January 7, 2011).
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available in the proposal and the NODAs. Ultimately, EPA made 

numerous changes to these inventories in response to public 

comments. 

A. EPA’s Authority for this Rule

The statutory authority for this action is provided by the 

CAA, as amended, 42 U.S.C. § 7401 et. seq. Section 110(a)(2)(D) 

of the CAA, often referred to as the “good neighbor” provision 

of the Act, requires states to prohibit certain emissions 

because of their impact on air quality in downwind states. 

Specifically, it requires all states, within 3 years of 

promulgation of a new or revised NAAQS, to submit SIPs that 

prohibit certain emissions of air pollutants because of the 

impact they would have on air quality in other states. 42 

U.S.C. § 7410(a)(2)(D). Section 301(a)(1) of the CAA gives the 

Administrator of EPA general authority to prescribe such 

regulations as are necessary to carry out her functions under 

the Act. 42 U.S.C. § 7601(a)(1). Section 110(c)(1) requires 

the Administrator to promulgate a FIP at any time within 2 years 

after the Administrator (a) finds that a state has failed to 

make a required SIP submission or that such a submission is 

incomplete or (b) disapproves a SIP submission, unless the state 

corrects the deficiency and the Administrator approves the SIP 

revision. 42 U.S.C. § 7410(c)(1). Tribes are not required to 

submit state implementation plans. However, as explained in 

EPA’s regulations outlining Tribal Clean Air Act authority, EPA 

is authorized to promulgate FIPs for Indian country as necessary 

or appropriate to protect air quality if a tribe does not submit 

and obtain EPA approval of an implementation plan. See 40 CFR 

49.11(a). 
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For each FIP in this rule, EPA either (a) found that the 

state has failed to make a required section 110(a)(2)(D)(i)(I) 

SIP submission or (b) disapproved a SIP submission. In 

addition, EPA has determined, in each case, that there has been 

no approval by the Administrator of a SIP submission correcting 

the deficiency prior to promulgation of the FIP. EPA’s 

obligation to promulgate a FIP arose when the finding of failure 

to submit or disapproval was made, and in no case has it been 

relieved of that obligation. (The specific findings made and 

actions taken by EPA are described in greater detail in the TSD 

entitled “Status of CAA 110(a)(2)(D)(i)(I) SIPs Supplemental 

Rule TSD,” which is available in the public docket for this 

rule.) 

As noted in the SNPR, EPA proposed a SIP Call under CAA 

110(k)(5) for Kansas (76 FR 763, January 6, 2011), based on its 

conclusion that Kansas significantly contributes to 

nonattainment or interferes with maintenance of the 1997 ozone 

NAAQS. On March 9, 2007, EPA approved a section 110(a)(2)(D)(i) 

SIP submission from the state of Kansas for the 1997 ozone and 

1997 PM2.5 NAAQS (72 FR 10608, March 9, 2007). This SIP 

submission did not rely on compliance with the Clean Air 

Interstate Rule (CAIR)

3 to satisfy the requirements of section 

110(a)(2)(D)(i)(I). The analysis for the proposed Transport 

Rule, however, demonstrated that emissions from Kansas 

significantly contribute to nonattainment or interfere with 

maintenance of the 1997 ozone NAAQS in other states. Because 

 

3 Rule To Reduce Interstate Transport of Fine Particulate 

Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid 

Rain Program; Revisions to the NOx SIP Call promulgated May 12, 

2005 (70 FR 25162)
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the approved Kansas SIP does not prohibit these emissions, EPA 

proposed to find it substantially inadequate to meet the 

requirements of section 110(a)(2)(D)(i)(I) with respect to the 

1997 ozone NAAQS. EPA intends to take final action on this 

proposal concurrent with this action or shortly thereafter. See 

section C below for more information on Kansas.

The five states addressed in this final rule for which 

EPA’s analysis identifies the state’s full reduction 

responsibility under section 110(a)(2)(D)(i)(I) with respect to 

the 1997 ozone NAAQS are Iowa, Kansas, Michigan, Oklahoma, and 

Wisconsin. The one state addressed in this final rule for which 

EPA’s analysis identifies reductions that are necessary but may 

not be sufficient to satisfy section 110(a)(2)(D)(i)(I) with 

respect to the 1997 ozone NAAQS is Missouri. This is because,

in the final Transport Rule air quality modeling control 

scenario in 2014, Missouri is estimated to be significantly 

contributing to residual nonattainment and/or interfering with 

residual maintenance at receptors in Brazoria and Harris 

Counties (Houston) in Texas, and Houston is the only area 

projected to remain in nonattainment in 2014. As described in 

the final Transport Rule (TR) preamble (e.g., Page 48210) 76 FR 

48208, August 8, 2011, only one area (Houston) is projected to 

remain in nonattainment for the 1997 ozone NAAQS in 2014 with 

the Transport Rule in place. For the upwind states linked to 

the receptors in this area (including Missouri), additional 

reductions may be necessary to fully eliminate each state's 

significant contribution to nonattainment and/or interference 

with maintenance. .Missouri was also found to contribute above 
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the threshold to the new maintenance receptor, Allegan County, 

Michigan.

4

EPA has not yet determined whether additional reductions in 

ozone-forming emissions are necessary to address Missouri’s 

significant contribution to downwind nonattainment and 

interference with maintenance, which may not be fully quantified 

in this rulemaking with respect to the 1997 ozone NAAQS. 

Additional technical analysis will be necessary to complete this 

determination. See section B.iii below for further discussion.

B. Finalizing FIPs to Address Significant Contribution to 

Nonattainment and Interference with Maintenance

EPA concludes in this final rule that application of the

methodologies to identify nonattainment and maintenance 

receptors and to determine significant contribution to 

nonattainment and interference with maintenance with respect to 

the 1997 ozone NAAQS, as described in the final Transport Rule,

demonstrates that Iowa, Kansas, Michigan, Missouri, Oklahoma, 

and Wisconsin significantly contribute to nonattainment or 

interfere with maintenance of the 1997 ozone NAAQS in other 

 

4

See the Air Quality Modeling Final Rule TSD (EPA-HQ-OAR2009-0491-4140). The estimated average and maximum design values 

for the receptors in Brazoria and Harris Counties (monitor 

identification numbers 480391004, 482010051, 482010055) in the 

final air quality modeling of the control scenario were 84.4, 

86.5 ppb; 84.1, 88.6 ppb; and 91.1, 93.2 ppb, respectively. 

Thus, the first two receptors were estimated to have residual 

maintenance issues, while the latter receptor is estimated to 

have a residual nonattainment issue. Missouri contributes at or 

above the one percent contribution threshold to all three of 

these receptors. (Note that average design values are used to 

assess attainment/nonattainment and maximum design values are 

used to assess maintenance.)
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states. EPA also concludes in this final rule that the 

Transport Rule NOX Ozone Season Trading Program set forth in the 

final Transport Rule (with minor revisions discussed in section 

III.F of this preamble) should be used as the FIP for five of 

the six states with regard to the 1997 ozone NAAQS. As 

discussed below, EPA received comments concerning whether, and 

in what amount, some of the states significantly contribute or 

interfere with maintenance. EPA did not receive any comments 

claiming that EPA should not use the Transport Rule NOX Ozone 

Season Trading Program as the FIP if the state is found to 

significantly contribute or interfere with maintenance.

i. Iowa

EPA is finalizing a FIP for Iowa that, through 

implementation of the Transport Rule ozone season program, 

limits power plant NOX emissions starting in the 2012 ozone 

season.

The analysis for the final Transport Rule identified Iowa 

as a state that interferes with maintenance of the 1997 ozone 

NAAQS only for a newly-identified maintenance receptor in 

Allegan County, Michigan. EPA specifically requested comment in 

the proposed notice for this supplemental action on whether 

there are errors in the Agency’s application of the Transport 

Rule methodologies with respect to Iowa’s significant 

contribution to nonattainment and/or interference with 

maintenance of the 1997 ozone NAAQS. There were no public 

comments that identified any errors in EPA’s determination of 

state budgets for Iowa, which demonstrated EPA’s quantification 

of emission reductions necessary to eliminate significant 

contribution and interference with maintenance.
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One commenter noted that inclusion of Iowa is justified. 

Another commenter questioned the Allegan County, Michigan

receptor. For more information on the Allegan receptor, see 

section D below in this preamble. Other comments concerning the 

2005 baseline, and “sunk costs”, are outside the scope of the 

proposed rule in this rulemaking, and, while these issues are 

not reopened in this rulemaking, EPA notes the issues have been 

addressed in the record of the final Transport Rule. See the 

docket for this rulemaking at www.regulations.gov, EPA-HQ-OAR2009-0491.

ii. Michigan

EPA is finalizing a FIP for Michigan that, through 

implementation of the Transport Rule ozone season program, 

limits power plant NOX emissions starting in the 2012 ozone 

season.

In its 2010 Transport Rule proposal, EPA proposed to 

determine that Michigan significantly contributes to 

nonattainment or interferes with maintenance of the 1997 ozone 

NAAQS and also proposed to include Michigan in the Transport 

Rule ozone-season NOX program. In the analysis conducted for the 

final Transport Rule, Michigan is linked only to a newlyidentified ozone maintenance receptor in Harford County, 

Maryland. EPA specifically requested comment in the proposed 

notice for this supplemental action on whether there are errors 

in the Agency’s application of the Transport Rule methodologies 

with respect to Michigan’s interference with maintenance of the 

1997 ozone NAAQS.

There were two major comments relating to Michigan. One 

comment regarded the use of the FIP and requested a delay for a 

minimum of 18 months so the state could submit an approvable 
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SIP. The matter of EPA’s authority under the Clean Air Act is 

discussed in detail in the final Transport Rule and above in 

section III.A. The second comment addressed the Indian country 

new unit set-aside and suggested that the state is the 

appropriate authority to allocate new source allowances, even to 

units located on tribal lands. The comment, concerning the 

authority to allocate allowances from the Indian country new 

unit set-aside, is outside the scope of the proposed rule in 

this rulemaking, and, while issues concerning the Indian country 

new unit set-aside are not reopened in this rulemaking, EPA 

notes the issues have been addressed in the preamble to the 

final Transport Rule at 76 FR 48317 and 48293. 

iii. Missouri

EPA is finalizing the FIP for Missouri that, through 

implementation of the Transport Rule ozone season program, 

limits power plant NOX emissions starting in the 2012 ozone 

season.

The analysis for the final Transport Rule identified

Missouri as a state that significantly contributes to 

nonattainment and/or interferes with maintenance of the 1997 

ozone NAAQS in Harris County, Texas, Brazoria County, Texas, and 

Allegan County, Michigan. EPA requested comment in the proposed 

notice for this supplemental action specifically on whether 

there are errors in the Agency’s application of the Transport 

Rule methodologies with respect to Missouri’s significant 

contribution to nonattainment and interference of the 1997 ozone 

NAAQS.

One commenter challenged the methodology used by EPA to 

quantify significant contribution, arguing that it was flawed 

because EPA’s base year does not include CAIR and does not 
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represent current air quality. As explained in the proposal, 

EPA did not reopen for comment the methodology developed in the 

final Transport Rule to quantify emissions that significantly 

contribute to or interfere with maintenance in another state. 

These comments are outside the scope of the proposed rule in 

this rulemaking, and, while these issues are not reopened in 

this rulemaking, the issues have been addressed in the record of 

the final Transport Rule.

One commenter stated that the proposal for this action 

would not require full elimination of Missouri’s significant 

contribution. EPA stated in the preamble to this rule’s 

proposal that for Missouri, our analysis identifies reductions 

that are necessary but may not be sufficient to satisfy section 

110(a)(2)(D)(i)(I) with respect to the 1997 ozone NAAQS. This 

is because Missouri is estimated to be significantly 

contributing to nonattainment and/or interfering with 

maintenance in Brazoria and Harris Counties in Texas, as 

demonstrated in the final Transport Rule air quality modeling of 

the control scenario in 2014 (see the Air Quality Modeling Final 

Rule TSD in the docket to this rulemaking, for additional 

details).

EPA intends to conduct further analysis and provide 

appropriate guidance and/or rulemaking to address any remaining 

significant contribution to nonattainment and interference with 

maintenance with respect to the 1997 ozone NAAQS for any state 

(e.g., Missouri) identified in the final Transport Rule and in

the associated supplemental notice, for which EPA was unable to 

fully quantify the emissions that must be prohibited to satisfy 

the requirements of section 110(a)(2)(D)(i)(I) with respect to 

the 1997 ozone NAAQS. 
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A commenter questioned whether the compliance deadline 

established by EPA in the FIP with regard to the 1997 ozone 

season NAAQS is feasible or valid in light of, among other 

things, the commenter’s suggestion that the Transport Rule NOX

ozone season allowance market will not be viable. EPA has 

determined it is feasible for sources in Missouri to meet the 

2012 budget finalized in this rule. The 2012 budget relies on 

control strategies that Missouri sources are already preparing 

to implement for the annual NOX program. These include running 

existing or already planned controls and making changes in 

dispatch (how electricity is distributed across units at a 

facility) that could include shifting generation from higher 

emitting units to lower emitting units. Sources also have 

further flexibility through the opportunity to purchase 

allowances. Twenty states have already been finalized as 

participants in the Transport Rule ozone season program and NOX

ozone season allowances have already been traded. Trading began 

prior to the formal distribution of allowances, and trading 

volume has increased since distribution, with prices steadily 

decreasing. This market is following a common pattern of 

emission allowance markets in their introductory stages — prices 

are initially high and then drop as parties become familiar with 

the characteristics of the market through repeated iterations of 

bids, offers, and trades. Observed market allowance prices for 

the NOX ozone season program are trending toward the projected 

equilibrium values included in EPA’s analysis of the final 

Transport Rule.

5

 

5 Recent price estimates provided in the subscription 

publication Argus Air Daily, an international provider of price 

data related to the energy sector. Also see the Regulatory 
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iv. Oklahoma

EPA is finalizing the FIP for Oklahoma that, through 

implementation of the Transport Rule ozone season program,

limits power plant NOX emissions starting in the 2012 ozone 

season.

In its 2010 Transport Rule proposal, EPA proposed to 

determine that Oklahoma significantly contributes to 

nonattainment or interferes with maintenance of the 1997 ozone 

NAAQS and also proposed to include Oklahoma in the Transport 

Rule ozone-season program. In the analysis conducted for the 

final Transport Rule, Oklahoma was linked only to a newlyidentified ozone maintenance receptor in Allegan County, 

Michigan. Oklahoma was not linked to any nonattainment 

receptors. EPA specifically requested comment in the proposed 

notice for this supplemental action on whether there are errors 

in the Agency’s application of the Transport Rule methodologies 

with respect to Oklahoma’s significant contribution to 

nonattainment and/or interference with maintenance of the 1997 

ozone NAAQS.

Several commenters generally question the validity of EPA’s 

conclusion that Oklahoma interferes with maintenance of the 1997 

ozone NAAQS in downwind states, especially regarding the Allegan 

County, Michigan receptor. See the discussion of the Allegan 

receptor below in section III.D. Other comments regarding the 

CAMx air quality model, emissions inventory data, and choice of 

base year are outside the scope of the proposed rule in this 

rulemaking, and, while these issues are not reopened in this 

 

Impact Assessment for the final Transport Rule at 

http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OAR-2009-

0491-4547. 
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rulemaking, the issues have been addressed in the record of the 

final Transport Rule and this supplemental rule.

EPA also received comments regarding the size of the 

proposed ozone season NOX budget for Oklahoma. Some commenters 

argued the Oklahoma ozone season budget was incorrectly 

calculated because it assumed reductions that could not be 

feasibly achieved by the 2012 ozone season. The analysis 

conducted for the proposal showed that reductions in Oklahoma 

could be achieved through, among other actions, installation of 

low-NOX burners (LNBs) at about 4.4 gigawatts (GW) of coal-fired 

generation capacity in the state, and the shifting of dispatch 

to cleaner generators. Commenters disputed the ability of 

sources in Oklahoma to effect sufficient reductions through 

either of these strategies in time to meet the proposed 2012 

state budget. Each identified issue is addressed below.

As to the LNBs, in the final Transport Rule, EPA found that 

it is technically feasible to install LNBs within a 6-month 

period. The shutdown of a unit and physical installation of 

LNBs at the unit necessarily occurs near the end of the 6-month 

period. Because of the timing of this final action, the units 

in Oklahoma would have to shut down to install the LNBs during 

the ozone season -- the summer peak demand period for 

electricity in Oklahoma. Taking these units off-line during the 

summer peak demand period would reduce the amount of available 

capacity in the reliability subregion of the Southwest Power 

Pool that includes Oklahoma. EPA’s policy case modeling 

suggests that this reduction in available capacity could shift 

this subregion below its assured planning reserve margin which 

is based on North American Electricity Reliability Corporation 

(NERC) planning reserve margins. See “Determination of State 
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Budgets for the Final Ozone Supplemental of the Transport Rule”

TSD. Because physical installation of the LNBs during the 2012 

summer peak on units in Oklahoma could potentially cause the 

region to miss this important reliability target, EPA concludes 

that installation of these LNBs during the ozone season is not 

technically feasible.

6 Therefore, EPA is assuming that no lowNOX burners can be installed in Oklahoma prior to or during the 

2012 ozone-season and is setting the Oklahoma 2012 ozone season 

NOX budget at a level that reflects emission reductions 

achievable through actions (such as changes in generation unit 

dispatch) that do not include additional LNB installations. EPA 

is setting the Oklahoma ozone season NOX budget for 2013 and 

beyond at the level that was proposed, i.e., to reflect NOX

levels achievable with additional LNB installations that can be 

completed before the 2013 ozone season without necessitating the 

shutdown of units during the summer peak demand period in 2012. 

EPA does not believe that this issue relating to LNB 

installation timing applies to the other four states for which 

EPA is finalizing a FIP in this action. Because those four 

states are already required to meet Transport Rule annual NOX

reduction requirements (which start January 2012), and were 

notified of that requirement with the July 6, 2011 finalization 

 

6Because, in the case of Oklahoma, physical installation of 

LNBs during the latter portion of the 6-month period would occur 

during the summer peak demand period, this conclusion concerning 

Oklahoma is distinguishable from EPA’s general conclusion that 

installation of LNBs in 6 months is technically feasible. See 

EPA-HQ-OAR-2009-0491-4529. Physical installation of LNBs near 

the end of a 6-month period and outside of the summer peak 

demand period will not threaten achievement of target planning 

reserve margins and, thus, electric reliability.
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of the Transport Rule, physical installation of LNBs near the 

end of the 6-month period for LNBs are not expected to occur 

during peak electricity demand periods. Moreover, information 

in the record indicates that, for units in Iowa, Michigan, 

Missouri, and Wisconsin, LNBs were already planned and are in 

the process of being installed. Therefore, EPA believes that 

the issue raised is unique to Oklahoma and does not justify 

adjusting the 2012 ozone season budgets for the four other 

states subject to this final action. As discussed below, EPA is 

finalizing the 2012 ozone season budgets as proposed for the 

four states, except for a few corrections in the Michigan and 

Wisconsin budgets addressed in section III.E, below. 

Some commenters also argued that EPA erred in assuming 

emissions from oil/gas steam units could be significantly 

reduced by the 2012 ozone season. Including Oklahoma, there are 

a total of five ozone-season-only states subject to the 

Transport Rule —— that is, five states that are subject to the 

ozone-season NOX program without also being subject to the annual 

NOX program. The ozone-season budgets for the four other states 

(Mississippi, Arkansas, Florida, and Louisiana) were finalized 

in the final Transport Rule which was signed and widely 

disseminated in July 2011. EPA did not finalize an ozone-season 

budget for Oklahoma at that time. EPA is finalizing the ozoneseason budget for Oklahoma more than 5 months after the budgets 

for the other states included in the ozone-season program were 

finalized and less than six months before the start of the 2012 

ozone season. In this respect, therefore, Oklahoma is uniquely 

situated. 

EPA believes that units in Oklahoma will have sufficient

time for compliance planning to include modest adjustments of NOX
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emissions at covered sources in Oklahoma (e.g., fine-tuning of 

existing combustion controls). However, EPA agrees that 

Oklahoma utilities may not have time between finalization of 

this rule and the 2012 ozone season to realign firm power supply 

to dispatch cleaner, more cost-effective sources of generation 

to meet local electricity demand that is currently being met by 

oil/gas steam generators. Therefore, EPA is adjusting the 

Oklahoma state budget for the 2012 ozone season specifically on 

the basis of revised projected emissions at oil/gas steam 

generators reflecting an immediate-term dispatch pattern that 

maintains the firm power supply arrangements already in place to 

serve local electricity demand. In light of Oklahoma’s unique 

situation, EPA is assuming for the purposes of this adjustment 

that projected 2012 emissions from oil/gas steam units in 

Oklahoma will be consistent with recently observed dispatch of 

this class of units in the state. EPA believes this situation 

is unique to Oklahoma due to the fact that sources in the other 

states covered by this rulemaking are already covered by a preexisting Transport Rule FIP addressing NOX emission control, and 

that these sources will have had substantially more compliance 

planning time to consider adjustments to dispatch in advance of 

the 2012 ozone season.

EPA believes that the original projections of Oklahoma EGU 

emissions of ozone-season NOX at the Transport Rule’s threshold 

cost-per-ton level remain achievable, through a combination of 

reduction measures, including LNB installations and increased 

dispatch of cleaner generating sources, in time for compliance 

in the 2013 ozone season and beyond, under the state budget as 

proposed. EPA is only adjusting the final Oklahoma state budget 

for the 2012 ozone season. See the technical support document, 
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“Determination of 2012 Ozone Season State Emission Budgets for 

the Final Transport Rule Ozone Supplemental,” in the docket to 

this rulemaking for more details. 

v. Wisconsin

EPA is finalizing the FIP for Wisconsin that, through 

implementation of the Transport Rule ozone season program,

limits power plant NOX emissions starting in the 2012 ozone 

season.

The analysis for the final Transport Rule identified

Wisconsin as a state that interferes with maintenance only for a 

newly-identified 1997 ozone NAAQS maintenance receptor in 

Allegan County, Michigan. EPA specifically requested comment in 

the proposed notice for this supplemental action on whether 

there are errors in the Agency’s application of the Transport 

Rule methodologies with respect to Wisconsin’s significant 

contribution to nonattainment and interference of the 1997 ozone 

NAAQS. There were no comments with respect to Wisconsin’s 

significant contribution to nonattainment and/or interference of 

the 1997 ozone NAAQS or with respect to EPA’s proposed use of 

the Transport Rule ozone season program as the FIP.

C. Kansas

EPA is finalizing its determination that Kansas 

significantly contributes to nonattainment or interferes with 

maintenance in another state with respect to the 1997 ozone 

NAAQS. EPA is not finalizing the proposed FIP for Kansas at 

this time. As explained below, EPA intends to take final action 

on its proposed SIP Call for Kansas concurrent with this action 

or shortly thereafter. If Kansas fails to submit a SIP that 

meets the requirements of 110(a)(2)(D)(i)(I) with respect to the 
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1997 ozone standards by any deadline established in any final

SIP Call, EPA would take action as appropriate to satisfy its 

obligation to promulgate a FIP to address the statutory 

requirements.

The analysis for the final Transport Rule and the analysis 

for the 2010 proposal both identified Kansas as a state that 

interferes with maintenance of the 1997 ozone NAAQS in another 

state. In its 2010 Transport Rule proposal, EPA proposed to 

determine that Kansas significantly contributes to nonattainment 

or interferes with maintenance of the 1997 ozone NAAQS and thus 

proposed to include Kansas in the Transport Rule ozone-season NOX

program. The analysis conducted for the final Transport Rule,

demonstrated that Kansas is linked only to a newly-identified 

ozone maintenance receptor in Allegan County, Michigan. As 

noted above, EPA decided to provide an additional opportunity to 

comment on its conclusions with respect to states that were 

linked, in the final Transport Rule analysis, only to receptors 

that were identified for the first time in that analysis. In 

that supplemental proposal, EPA specifically requested comment 

in the proposed notice to this supplemental action on whether 

there are errors in the Agency’s application of the Transport 

Rule methodologies with respect to Kansas’s significant 

contribution to nonattainment and interference of the 1997 ozone 

NAAQS. After a review of comments received, EPA has concluded 

that Kansas interferes with maintenance of the 1997 ozone NAAQS 

in Allegan County, Michigan.

 This action does not take final action on the portion of 

the proposal relating to whether to use the Transport Rule ozone 

season program as the FIP for Kansas. In the 2010 Transport 

Rule proposal, EPA summarized the status of the CAA section 
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110(a)(2)(D)(i)(I) SIP for the state of Kansas with regard to 

the 1997 ozone NAAQS. As explained therein, EPA had previously 

approved a section 110(a)(2)(D)(i) SIP submission from the state 

of Kansas for the 1997 ozone and 1997 PM2.5 NAAQS on March 9, 

2007 (72 FR 10608). That SIP submission did not rely on the 

unlawful CAIR trading programs or rely in any way on the 

conclusion in CAIR that compliance with CAIR was sufficient to 

satisfy a state’s 110(a)(2)(D)(i)(I) obligations with respect to 

the 1997 ozone and PM2.5 NAAQS. Kansas is unique in this regard 

because no other state covered by the Transport Rule or this 

action has an approved SIP that did not rely on the CAIR 

requirements, which the D.C. Circuit held were not sufficient to 

satisfy the requirements of 110(a)(2(D)((I)(I) of the Act. For 

these reasons, EPA does not have an obligation under section 

110(c)(1) of the Act to promulgate a FIP for Kansas at this 

time. Therefore, in a separate action, EPA proposed a SIP Call 

under CAA section 110(k)(5) for Kansas (76 FR 763, January 6, 

2011), and proposed to find the Kansas SIP substantially 

inadequate to meet the requirements of 110(a)(2)(D)(i)(I) with 

respect to the 1997 ozone NAAQS. This proposal was based on the 

proposed conclusion that emissions from Kansas are significantly 

contributing to nonattainment or interfering with maintenance of 

the 1997 ozone NAAQS in another state. EPA intends to take 

final action on the proposed SIP Call concurrently with this 

action or shortly thereafter.

D. Allegan County, Michigan, Receptor

The final Transport Rule air quality modeling identified a 

new maintenance receptor in Allegan County, Michigan, to which 

upwind states interfere with maintenance of the NAAQS.
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Some commenters noted that EPA took final action on 

September 24, 2010 to redesignate the Allegan County, Michigan 

nonattainment area to attainment for the 1997 8-hour ozone 

standard. 75 FR 58312; September 24, 2010. Moreover, 

commenters noted that EPA in the same action approved Michigan’s 

“maintenance plan” for maintaining the 8-hour ozone NAAQS 

through 2021 in the same area. Based on this observation, these 

commenters asserted that EPA should not consider Allegan County 

to be a “maintenance receptor” for purposes of the Transport 

Rule. Accordingly, these commenters believed that EPA should 

not be requiring emission reductions from upwind states on the 

basis of the contributions to Allegan County, Michigan. 

EPA agrees that the nonattainment area containing Allegan 

County, Michigan was redesignated by EPA on September 24, 2010,

and that EPA approved the state of Michigan’s maintenance plan 

for the area. The area, therefore, is currently considered to 

be a maintenance area and not a nonattainment area. 

EPA, however, disagrees with commenters’ conclusion that a 

maintenance area (i.e., an area that has been redesignated and 

is thus subject to a maintenance plan) should not be considered 

a maintenance receptor in EPA’s analysis for a number of 

reasons. First, EPA notes that ozone values at the Allegan 

location, historically and in the future, are strongly 

influenced by interstate transport. Second, the methodology for 

identifying “maintenance” receptors relevant to upwind state 

contributions in the Transport Rule is a unique test designed to 

satisfy the “interfere with maintenance” prong of 

110(a)(2)(D)(i)(I); EPA believes this methodology responds to 

the U.S. Court of Appeals for the D.C. Circuit in the July 20,

2008 decision in North Carolina v. EPA, 531 F.3d 896, ruling on 
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the deficiency of CAIR with regard to this 110(a)(2)(D)(i) 

obligation. Finally, as stated in the preamble to the final 

Transport Rule, EPA’s test for identifying “maintenance 

receptors” for the Transport Rule appropriately differs from, 

and is not dependent on, recent monitoring data, including data 

used to re-designate an area as being in attainment.

1. Nature of the ozone problem for the Allegan County, 

Michigan location

Allegan County is a mostly rural county located in 

southwestern Michigan along Lake Michigan. EPA source 

apportionment modeling for 2012 shows that for the ozone monitor 

in Allegan County, 96 percent of ozone is attributable to outof-state emissions. As such, Allegan Country provides a 

particularly compelling example of the limited ability of any 

individual state to unilaterally control air quality outcomes 

within its borders. See Air Quality Modeling Final Rule TSD, 

EPA-HQ-OAR-2009-0491-4140 for details.

Table III.D-1 provides more information on the nature of 

ozone at this site. In many years in the available data set, 

there are a few days with markedly higher ozone values than are 

measured for the remainder of the year. Whether those values 

lead to exceedances of the 8-hour ozone NAAQS is dependent on 

whether that phenomenon extends to the 4th highest day of the 

season and on the degree to which this occurs in consecutive 

years. Accordingly, this site’s ozone design value can 

experience significant variability from year to year. 

Table III.D-1. Recent Observed Ozone Concentrations at the 

Allegan County Ozone Monitor (AIRS ID 260050003) 
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YEAR

1st 

High

2nd High 3rd High 4th High

Design Value 

(DV) Period

DV 

(average 

of 4th 

high over 

3-yr 

period)

2003 106 102 97 95

2004 107 84 81 79

2005 113 107 95 94 2003-2005 89

2006 99 91 91 91 2004-2006 88

2007 109 108 98 94 2005-2007 93

2008 100 77 74 73 2006-2008 86

2009 92 83 79 76 2007-2009 81

2010 77 76 75 73 2008-2010 74

2011 98 96 96 87 2009-2011* 78*

* 2011 is based on preliminary data for year to date 

through 9/5/11; see: http://www.michigan.gov/documents/deq/deqaqd-mm-ozone-8hrhighestcurrent_256060_7.pdf

Table III.D-1 shows that the 1st high annual measured value 

over the last 9 years has ranged from 92-113 ppb, except in 2010 

when the 1st high value was only 77 ppb. The 4

th high values have 

ranged between 73 and 95 ppb. There were three consecutive 

years with low 4th high values below 80 ppb (2007-2009) and there 

was one period (2005-2007) with consecutive 4th high values 

greater than 90 ppb. The fact that the 4th high value dropped 

from 94 ppb in 2007 to 73 ppb 2008, and then increased again 

from 73 ppb in 2010 to 87 ppb in 2011 shows that the pattern of 

regional transport and meteorology are the primary factors in 

the year to year variability of the observed design value at 

this site. The magnitude of the year-to-year changes is too 
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large to be caused solely by emission reductions or increases in 

Allegan County, or even in upwind states. Based on EPA’s CAMx 

source apportionment modeling, if emission reductions were 

solely responsible for the improvement in ozone concentrations 

in Allegan County from 2007 to 2008, all of the NOX emissions in 

the upwind states of Illinois, Indiana, and Missouri would have 

to have dropped by greater than 50 percent between those years.

Since that is clearly not the case, the data show that 

meteorological conditions and regional transport patterns may 

still effect substantial changes in ozone in Allegan County, 

which supports its identification as a receptor whose 

maintenance of the NAAQS may be jeopardized without further 

emission reductions in upwind states. 

2. Emission analysis conducted in approving Michigan’s 

maintenance plan for Allegan 

EPA’s rationale for approving the maintenance plan for 

Allegan County is described in the proposed approval notice (75 

FR 42018; July 20, 2010). A number of tables in that proposed 

approval compared current emissions to future emissions for VOC 

and NOX sources located within the Allegan County nonattainment 

area. The analysis concluded that projected emission levels, 

for sources within the nonattainment area, were decreasing 

throughout the maintenance period. The ozone redesignation and 

maintenance plan analysis completed by Michigan meets EPA 

guidance but uses a different test and data that are less 

current than what were applied in the Transport Rule. The 

maintenance plan test for the local SIP requires an analysis to 

show that emissions in the local area will not increase, thereby 

showing that the area will be able to maintain the ozone NAAQS. 

The redesignation is based on having current air quality data 
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which shows that the area is attaining the NAAQS and the area 

meets all other Clean Air Act requirements for redesignation. 

3. Maintenance approach in the Transport Rule

In the North Carolina decision concerning CAIR, the Court 

directed EPA to give independent meaning to the “interfere with 

maintenance” prong of CAA section 110(a)(2)(D)(i)(I) and to 

separately identify upwind sources that interfere with downwind 

maintenance. In particular, the Court expressed concern that 

CAIR did not adequately protect areas that find themselves 

barely in attainment by the statutory deadline and suggested 

that EPA needed to take into account the historic variability of 

a downwind area’s ozone levels in determining whether an upwind 

source would cause that downwind area to have trouble 

maintaining the NAAQS. 

Accordingly, EPA in the Transport Rule explicitly gave 

independent meaning to the “interfere with maintenance” prong of 

section 110(a)(2)(D)(i)(I) by evaluating contributions to 

maintenance receptors as well as contributions to identified 

nonattainment receptors. The maintenance methodology used an 

approach that examined multiple design value periods (from 2003-

2007) projected to 2012. This allowed an estimate of 

variability in future design values, based on past measured 

variability. A detailed discussion of EPA’s new approach, 

rationale, and responses to comments on the approach, including 

the methodology for identifying maintenance receptors, is found

in section V.C.2 of the preamble to the final Transport Rule (76 

FR 48227). 

In the application in the final Transport Rule of that 

approach, Allegan County was identified as a maintenance 

receptor but not as a nonattainment receptor. That is, for 
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Allegan County, EPA projected that, under “average” conditions 

that would take place in the relevant area in the future, 

Allegan County would not exceed the ozone NAAQS in 2012. On the 

other hand, EPA projected, under conditions reflecting the 

maximum design values in the relevant area during 2003-2007, 

that Allegan County could exceed the ozone NAAQS. EPA’s

analysis took into account the fact that previously experienced 

meteorological conditions (e.g., dominant wind direction, 

temperatures, and air mass patterns) promoting ozone formation 

may reoccur in the relevant area in the future. Consistently 

applying this approach throughout the relevant area, EPA found 

that Allegan County exceeded the threshold for inclusion as a 

maintenance receptor. 

4. Relationship between EPA’s “maintenance receptor” 

analysis for the Transport Rule and EPA’s approval of Michigan’s 

“maintenance plan” 

EPA’s methodology for identifying nonattainment and 

maintenance receptors is based on modeled projections of 

measured air quality at specific monitors, not on the 

designation status of an area7. EPA believes this approach is 

appropriate for the reasons explained in section V.C.2 of the 

preamble to the final Transport Rule. 76 FR 48230. EPA does 

not believe it would be appropriate to rely on the designation 

status of an area to determine air quality or for determining 

 

7 This issue was discussed in the preamble to the NOX SIP 

Call (see 63 FR 57375, October 27, 1998, footnote 25), and the 

U.S. Court of Appeals for the D.C. Circuit’s decision in Michigan 

v. EPA, 213 F.3d 663 (2000), further supports the position that 

determinations of significant contribution or interference with 

maintenance under CAA section 110(a)(2)(D)(i)(I) should not be 

based on an area’s attainment designation.
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whether one state is contributing significantly to nonattainment 

or interfering with maintenance of another state under CAA 

section 110(a)(2)(D)(i)(I). The CAA does not require EPA to do 

so. As EPA explained in the proposal to designate Allegan 

County as an attainment area, an area’s transport requirements 

under section 110(a)(2)(D) are not linked to an area’s 

attainment designation and continue to apply regardless of an 

area’s designation status. 75 FR 42018, 42023. The U.S. Court 

of Appeals for the D.C. Circuit’s decision in Michigan v. EPA, 

213 F.3d 663 (2000), further supports the position that 

determinations of significant contribution or interference with 

maintenance under CAA section 110(a)(2)(D)(i)(I) is most 

appropriately based on current air quality and modeling, rather 

than an area’s attainment designation. In fact, it would be 

impractical given the timing of when designations are made and 

nonattainment SIPs due to base such a determination on an area’s 

attainment or maintenance designation, suggesting that Congress 

did not intend section 110(a)(2)(D)(i)(I) SIPs to be linked in 

any way to designation status. Further, even areas that have 

never been in nonattainment or have been re-designated to 

attainment (including those where the majority of pollution 

comes from out of state) continue to be at risk for falling into 

nonattainment as a result of emissions from upwind states, as 

the North Carolina court recognized, 531 F.3d at 910. 

Generally, in judging whether to re-designate a given area, 

EPA evaluates local emissions as part of the “maintenance plan.” 

However, if EPA proposes to re-designate areas to attainment, 

this does not remove the need to address emissions in upwind 

states which could interfere with the maintenance plan. Without 

a cap on emissions in upwind states with a significant impact, 
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Page 35 of 73

upwind state emissions might in fact grow, increasing the 

possibility that the area being evaluated will not be able to 

maintain attainment. Furthermore, since upwind states are not 

required to have contingency measures under a downwind state’s 

SIP, it is incumbent on EPA to ensure that states with 

significant impacts are appropriately controlled. 

Additionally, EPA notes that the Transport Rule was based 

upon newer and more extensive information than was available at 

the time of our approval of Michigan’s “maintenance plan” for 

Allegan County, and the more recent information suggests Allegan 

County may have difficulty maintaining attainment, 

notwithstanding its 2010 redesignation. EPA believes that the 

maintenance requirements in the Transport Rule serve to 

reinforce and supplement the state’s maintenance plan, providing 

important support by greatly decreasing the probability that 

emissions from upwind states could lead to future nonattainment. 

As discussed above, EPA’s projections for 2012 indicate that 96 

percent of ozone at the Allegan County receptor is created by 

precursor emissions originating from states other than Michigan. 

Clearly, the ability to maintain the ozone NAAQS in Allegan 

Country is largely influenced by upwind state emissions.

5. Recent Air Quality Data

Commenters in Oklahoma noted that EPA should use actual 

monitoring data, “which reflects CAIR reductions,” to 

demonstrate that Allegan County would remain in attainment. 

They cited ambient measurements of 74 ppb for the 3-year average

for 2008-2010. Recent preliminary air quality data for 2011 

serve to reinforce EPA’s view that the variability in 

meteorology is a significant issue for the Allegan receptor’s 

ability to maintain the NAAQS. In 2011, there were four ambient 
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values exceeding the 85 ppb level of the 1997 NAAQS, with a high 

value of 98 ppb. In other words, the 4th high value for 2011 

exceeded the NAAQS. These values do not yet lead to a 

conclusion that the area is in nonattainment because the 

preliminary 2009-2011 design value ― the average of the 4th high 

values for 2009, 2010, and 20118 ― remains below 85 ppb. 

However, if the 4

th high ambient values for 2012 and 2013 were 

the same as the preliminary values for 2011, the area would be 

in violation of the NAAQS. But even with relatively lower ozone 

concentrations across much of the country in the 2008-2010 

period, the preliminary 2011 data show that Allegan County 

clearly continues to experience high ozone days, suggesting that

this location may have maintenance problems that may eventually 

lead to violations of the 1997 ozone NAAQS. The data illustrate 

the highly variable nature of ozone at the Allegan location and 

reinforce the wisdom of taking variability into account in our 

“maintenance” analysis. 

E. Ozone Season NOX Emission Budgets for Five States

EPA is finalizing state ozone season NOX emission budgets 

for covered units (generally large electric generating units)9 in

Iowa, Michigan, Missouri, Oklahoma, and Wisconsin under the FIPs 

for the 1997 ozone NAAQS. As noted above, EPA is not taking 

final action on the proposed Kansas FIP at this time. 

 

8 Data for 2011 is incomplete at the time of finalization of 

this rulemaking.

9 The applicability provisions for determining covered units

in the named six states for the Transport Rule ozone season NOX

program are the same as those described in section VII.B, 

“Applicability,” of the preamble to the final Transport Rule. 
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EPA is finalizing these budgets, adjusted if necessary 

based on comments received, as part of the FIPs for these five 

states. These budgets and the associated variability limits are 

presented in Table III.E-1. Note that EPA has proposed, in a 

separate rulemaking (76 FR 63860), to revise the effective date 

of the assurance penalty provisions so that they start on

January 1, 2014 instead of January 1, 2012. If EPA finalizes 

that revision, the assurance provisions and variability limits 

below would not apply for 2012 and 2013. The new unit setasides and Indian country new unit set-aside, if applicable, for 

these five states are presented in Table III.E-2. For 

illustrative purposes only, in order to provide a complete 

picture of the Transport Rule ozone season program, Tables 

III.E-1 and III.E-2 also include information concerning the 

other states in that program. However, the proposed rule did 

not reconsider or request comment on any issues concerning the 

other states, and neither the proposed rule nor this final rule 

reopens any issues concerning these other states.

Table III.E-1: State Budgets10 and Variability Limits for 

2012-2013, 2014 and Thereafter

 

10 This table reflects ozone-season NOX budgets and 

variability limits as currently effective based on finalization 

of the Transport Rule published on July 6, 2011 and finalization 

of this supplemental action. In a separate action, EPA has 

proposed revisions to certain state budgets and new unit setasides that are not reflected in these tables, as they are not 

yet finalized. That action may be reviewed at 76 FR 63860, 

October 14, 2011.
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State

NOX Ozone Season 

trading budget for 2012 

and 2013 (tons)*

NOX Ozone 

Season trading 

budget for 2014 

and thereafter 

(tons)*

Variability limits for 

2012 and 2013

Variability limits 

for 2014 and 

thereafter

Alabama 31,746 31,499 6,667 6,615

Arkansas 15,037 15,037 3,158 3,158

Florida 27,825 27,825 5,843 5,843

Georgia 27,944 18,279 5,868 3,839

Illinois 21,208 21,208 4,454 4,454

Indiana 46,876 46,175 9,844 9,697

Iowa 16,532 16,207 3,472 3,403

Kentucky 36,167 32,674 7,595 6,862

Louisiana 13,432 13,432 2,821 2,821

Maryland 7,179 7,179 1,508 1,508

Michigan 28,041 27,016 5,889 5,673

Mississippi 10,160 10,160 2,134 2,134

Missouri 22,762 21,073 4,780 4,425

New Jersey 3,382 3,382 710 710

New York 8,331 8,331 1,750 1,750

North 

Carolina 22,168 18,455 4,655 3,876

Ohio 40,063 37,792 8,413 7,936

Oklahoma** 36,567 21,835 21,835 7,679 4,585 4,585

Pennsylvania 52,201 51,912 10,962 10,902

South 

Carolina 13,909 13,909 2,921 2,921

Tennessee 14,908 8,016 3,131 1,683

Texas 63,043 63,043 13,239 13,239

Virginia 14,452 14,452 3,035 3,035

West 

Virginia 25,283 23,291 5,309 4,891

Wisconsin 14,784 14,296 3,105 3,002

* Variability limits are discussed in the preamble to the final 

Transport Rule, section VI.E.

** Data in this table is presented for Oklahoma separately for 

the years 2012 and 2013, as its state budget and variability 

limits are not the same in each of those years.

In section III.B.iv, EPA explained that this final rule 

adjusts the Oklahoma state budget only for the 2012 ozone 
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season, reflecting revised emission projections that do not 

include LNB installation or the redispatching of oil/gas steam 

units by the 2012 ozone season. For 2013 onwards, the Oklahoma

ozone season budget remains at the level EPA proposed.

In the October 6, 2011 proposed Revisions to the Transport

Rule (also known as the Cross-State Air Pollution Rule), EPA 

proposed, and invited comment on, adjustments to the annual NOX

emission budgets for both Michigan and Wisconsin. For both 

states, the budget was proposed to be increased based on revised 

assumptions regarding Selective Catalytic Reduction (SCR) 

technology previously assumed to be installed and operating at 

specific units in 2012. In the case of Michigan, the budget was 

proposed to be increased to account for Monroe Unit 2 not having 

a SCR in 2012 or 2014. For Wisconsin, a similar adjustment was 

proposed to account for JP Madgett Unit 1 not having a SCR in 

2012 or 2014. EPA recognized that these revised input 

assumptions would also affect the calculation of the states’

ozone-season budgets, and EPA is now applying that information 

to the determination of these states’ ozone season NOX budgets in 

this final rule. Applying the updated information regarding 

Monroe Unit 2 in Michigan and JP Madgett Unit 1 in Wisconsin 

results in budgets for Michigan and Wisconsin that are 2,289 

tons and 1,080 tons, respectively, larger than the proposed 

budgets for these states. The final budgets are reflected in 

Table III.E-1.

As noted above, EPA is finalizing for the five states the

ozone season new unit set-asides for allowance allocations to 

new units, determined in the same manner as for the other states 

covered in the Transport Rule ozone season NOX program. This 

approach is described in section VII.D.2, “Allocations to New 
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Units,” of the preamble to the final Transport Rule. Table 

III.E-2 shows the new unit set-aside for Iowa, Michigan, 

Missouri, Oklahoma, and Wisconsin as a percent of state ozone 

season NOX emissions. Table III.E-3 shows the new unit set-aside 

and Indian country new unit set-aside, as appropriate, for the 

five states and, for the reasons discussed above, the other

states in the Transport Rule ozone season program.

In addition, as described in section VII.D.2, “Allocations 

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

is providing a mechanism to make allowances available in the 

future for new units built in Indian country. Table III.E-3

shows the Indian country set-asides EPA is finalizing to set 

aside Transport Rule ozone-season allowances from the budgets of 

the states addressed in this final rule that have Indian country 

within their borders (i.e., Iowa, Michigan, Missouri, and 

Wisconsin). As explained in the final Transport Rule, EPA will 

administer these Indian country new unit set-asides regardless 

of whether a state replaces its Transport Rule FIP with an 

approved SIP. EPA received one comment from a state regarding 

the size of its Indian Country new unit set-aside. However, 

there was no information submitted showing that EPA’s

calculations or methodologies were in error. Therefore, EPA is 

finalizing the new unit set-asides and Indian country new unit 

set-asides, as proposed, with adjustments to reflect any 

revisions to the appropriate budgets, for the five states in 

this final action.

Table III.E-2: State New Unit Set-Asides as a Percent of 

State NOX Ozone Season Trading Budgets
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NOX Ozone Season 

New Unit Set-Aside

Iowa 2%

Michigan 2%

Missouri 3%

Oklahoma 2%

Wisconsin 6%

Table III.E-3: New Unit Set-Asides and Indian Country New Unit

Set-Asides for 2012-2013; 2014 and Thereafter11

State

New unit setaside for 2012 

and 2013

(tons)

New unit 

set-aside 

for 2014 

and 

thereafter

(tons)

Indian 

country 

new unit 

set-aside 

for 2012 

and 2013

(tons)

Indian country 

new unit setaside for 2014 

and 

thereafter(tons)

Alabama

635 630 --- ---

Arkansas

301 301 --- ---

Florida

529 529 28 28

Georgia

559 366 --- ---

Illinois

1,697 1,697 --- ---

Indiana

1,406 1,385 --- ---

Iowa

314 308 17 16

Kentucky

1,447 1,307 --- ---

 

11 This table reflects ozone-season NOX budgets and 

variability limits as currently effective based on finalization 

of the Transport Rule published on July 6, 2011 and finalization 

of this supplemental action. In a separate action, EPA has 

proposed revisions to certain state budgets and new unit setasides that are not reflected in these tables, as they are not 

yet finalized. That action may be reviewed at 76 FR 63860, 

October 14, 2011.
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Louisiana

390 390 13 13

Maryland

144 144 --- ---

Michigan

533 513 28 27

Mississippi

193 193 10 10

Missouri

683 632 --- ---

New Jersey

68 68 --- ---

New York

242 242 8 8

North 

Carolina

1,308 1,089 22 18

Ohio

801 756 --- ---

Oklahoma

731 437 437 --- ---

Pennsylvania

1,044 1,038 --- ---

South 

Carolina

264 264 14 14

Tennessee

298 160 --- ---

Texas

1,828 1,828 63 63

Virginia

723 723 --- ---

West 

Virginia

1,264 1,165 --- ---

Wisconsin

872 844 15 14

Finally, EPA is finalizing the unit-level allocations of

Transport Rule NOX ozone season allowances under the FIP to

existing covered units in Iowa, Michigan, Missouri, Oklahoma, 

and Wisconsin. These allocations are presented in the TSD 

entitled “Final Unit-Level Ozone Season NOX Allowance Allocations 

to Existing Units in Five States: Supplemental Final Rule TSD,” 

which is available in the public docket for this rule and on the 

Web at http://www.epa.gov/crossstaterule. The methodology and 
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procedures used for allocations to existing units covered by the 

Transport Rule ozone season NOX program are specified in section 

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

the final Transport Rule and in the TSD entitled “Allowance 

Allocation Final Rule TSD,” which is available in the public 

docket for this rule. The TSD entitled “Final Unit-Level Ozone 

Season NOX Allowance Allocations to Existing Units in Five

States: Supplemental Final Rule TSD” also describes how to 

access publicly available downloadable Excel spreadsheets with 

the unit-level allowance allocations and the supporting data EPA 

used in applying the final Transport Rule existing unit 

allocation methodology to eligible units in each of the five

states in this final rule on the Web at 

http://www.epa.gov/crossstaterule.

F. Implementation of the Transport Rule NOX Ozone Season 

Trading Program

As discussed above, EPA concludes in this final rule that 

the Transport Rule NOX Ozone Season Trading Program set forth in 

the final Transport Rule should be used as the FIP for Iowa, 

Michigan, Missouri, Oklahoma, and Wisconsin with regard to the 

1997 ozone NAAQS. In the SNPR, EPA proposed that the 

implementation of the Transport Rule ozone season program be 

identical for these five states to implementation for the other 

states subject to this program. Under this final rule, the 

implementation of this program for these five states is the same 

as for the other states, except for the deadlines for submission 

of allocations for existing units for 2013. 

Under the Transport Rule, states have the option of 

submitting three types of SIP revisions that, if approved, 

change certain provision of the Transport Rule NOX Ozone Season 
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Trading Program. First, a state may submit a SIP revision 

setting forth allocations to existing units for 2013. Second, a 

state may submit an abbreviated SIP that replaces the allowance 

allocation provisions in the FIP to existing and new units 

starting in 2014 or any year thereafter. Third, a state may 

submit a full SIP that replaces the FIP entirely (except for any 

provisions concerning units in any Indian country within the 

borders of the state) but substantively changes only the 

allowance allocation provisions starting in 2014 or any year 

thereafter. 

With regard to the first type of SIP revision, involving 

only 2013 allocations to existing units, the final Transport 

Rule set a series of deadlines concerning submission, approval, 

and implementation of state-determined 2013 existing-unit 

allocations. Specifically, states under the final Transport 

Rule were required to inform EPA of their intent to submit 2013 

allocations for existing units by November 7, 2011 and must 

submit these allocations by April 1, 2012, and the Administrator 

will record the allocations, if approved, by October 1, 2012. 

Because this series of sequential deadlines began about six 

months before the issuance and the publication of this final 

rule, EPA is revising the final Transport Rule (including the 

Transport Rule NOX Ozone Season Trading Program) to establish an 

analogous series –- only for Iowa, Michigan, Missouri, Oklahoma, 

and Wisconsin -- of deadlines for 2013 allocations of Transport 

Rule NOX Ozone Season allowances using dates that are about six 

months later than the dates in the generally applicable series 

of 2013 allocation-related deadlines. For example, the five 

states must inform EPA of their intent to submit 2013 

allocations for existing units by the date 70 days after 
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publication of this final rule in the Federal Register and must 

submit these allocations by October 1, 2012, and the 

Administrator will record the allocations, if approved, by April 

15, 2013.12 

With regard to the other two types of SIP revisions 

(abbreviated SIPs and full SIPs), all of the deadlines for SIP 

submission and for submission of allocations (or results of 

auctions, if any) for the other states in the Transport Rule 

ozone season program are about 11 months or more after the 

issuance or the publication of the final Transport Rule, and no 

commenters suggested changing these deadlines for Iowa, 

Michigan, Missouri, Oklahoma, and Wisconsin. Consequently, EPA 

is finalizing these deadlines related to abbreviated SIPs and 

full SIPs. The submission deadlines and process for abbreviated 

SIPs and full SIPs for all states (including the five states 

covered by this final rule) in the Transport Rule ozone season 

program are found in section X, “Transport Rule State

Implementation Plans,” of the preamble to the final Transport 

Rule.

Finally, under the final Transport Rule, the first 

Transport Rule ozone season trading program runs from May 1, 

 

12 Similarly, the deadline for recordation by the 

Administrator of 2012 existing-unit allocations and, in the 

absence of a notice by a state of intent to submit a SIP 

revision with 2013 allocations, of 2013 existing-unit 

allocations is moved for the five states to the date 90 days 

after publication of this final rule in the Federal Register. 

The analogous deadline for the other states in the Transport 

Rule ozone season program was November 7, 2011, which was set as 

the date 90 days after publication of the final Transport Rule 

and precedes the issuance and publication of this final rule.
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2012 through September 30, 2012. For the reasons discussed 

above, the FIPs for Iowa, Michigan, Missouri, Oklahoma, and 

Wisconsin apply the Transport Rule ozone-season NOX requirements 

to sources in those states in the same manner the requirements 

are applied to sources in other states covered by Transport Rule 

ozone-season provisions. 

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and 

Executive Order 13563: Improving Regulation and Regulatory 

Review

Under Executive Order 12866 (58 FR 51735, October 4, 1993), 

this action is a "significant regulatory action.” Accordingly, 

EPA submitted this action to the Office of Management and Budget 

(OMB) for review under Executive Orders 12866 and 13563 (76 FR 

3821, January 21, 2011) and any changes made in response to OMB 

recommendations have been documented in the docket for this 

action. 

B. Paperwork Reduction Act

EPA is required to document the information collection 

burden imposed by the Transport Rule program on industry, 

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

ICR describes the information collection requirements associated 

with the final Transport Rule program inclusive of this proposal

and estimates the incremental costs of compliance with all such 

requirements, such as the requirement for industry to monitor, 

record, and report emissions data to EPA.

The ICR for the Transport Rule Program inclusive of this 

supplemental rule was submitted for approval to OMB under the 

Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and was
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approved under OMB control number 2060-0667. EPA believes that 

there are no information collection requirements or burden 

beyond those reported in the Transport Rule program inclusive of 

this supplemental rule.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an 

agency to prepare a regulatory flexibility analysis of any rule 

subject to notice and comment rulemaking requirements under the 

Administrative Procedure Act or any other statute unless the 

agency certifies that the rule will not have a significant 

economic impact on a substantial number of small entities. 

Small entities include small businesses, small organizations, 

and small governmental jurisdictions.

For purposes of assessing the impacts of this final 

rule on small entities, small entity is defined as:

(1) A small business as defined by the Small Business 

Administration’s (SBA) regulations at 13 CFR 121.201. For the 

electric power generation industry, the small business size 

standard is an ultimate parent entity defined as having a total 

electric output of 4 million megawatt-hours (MW-hour) or less in 

the previous fiscal year.

(2) A small governmental jurisdiction that is a 

government of a city, county, town, school district or special 

district with a population of less than 50,000; and

(3) A small organization that is any not-for-profit 

enterprise which is independently owned and operated and is not 

dominant in its field. 

Table IV.C-1 — Potentially Regulated Categories and Entitiesa
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Category NAICS 

Codeb

Examples of Potentially Regulated 

Entities

Industry 221112 Fossil-fuel-fired electric utility 

steam generating units.

Federal 

Government

221112c Fossil-fuel-fired electric utility 

steam generating units owned by the 

federal government.

State/Local 

Government

221112c Fossil-fuel-fired electric utility 

steam generating units owned by 

municipalities.

Tribal 

Government

921150 Fossil-fuel-fired electric utility 

steam generating units in Indian 

Country.

a

Include NAICS categories for source categories that own and operate 

electric generating units only.

b North American Industry Classification System.

c Federal, state, or local government-owned and operated establishments are 

classified according to the activity in which they are engaged.

After considering the economic impacts of the Transport 

Rule program inclusive of this supplemental rule on small 

entities, as described in section XII.C of the preamble to the 

final Transport Rule, EPA certifies that this action will not 

have a significant economic impact on a substantial number of 

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

economic impact of the final Transport Rule inclusive of this 
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supplemental rule on all affected small entities across all 

industries affected. EPA assessed the potential impact of the 

final Transport Rule on small entities and found that there are 

about 660 potentially affected small units (i.e., greater than 

25 MW and generating less than 4MM MWh) out of 3,625 existing 

units in the TR region. The majority of these EGUs are owned by 

entities that do not meet the small entity definition. The 

remaining 271 of the 660 EGUs are owned by 108 potentially 

affected small entities and are likely to be affected by this 

rule. EPA estimates that 24 of the 108 identified small 

entities will have annualized costs greater than 1 percent of 

their revenues, and the other 84 are projected to incur costs 

less than 1 percent of revenues. Eleven small entities out of 

108 — only about 10 percent-- are estimated to have annualized 

costs greater than 3 percent of their revenues, which factors 

into EPA’s finding of no SISNOSE. EPA believes that the 

provisions of the Regulatory Flexibility Act are covered by and 

reported in section XII.C of the preamble to the final Transport 

Rule.

Although this final rule will not have a significant 

economic impact on a substantial number of small entities, EPA 

nonetheless has tried to reduce the impact of this rule on small 

entities. In EPA’s modeling, most of the cost impacts for these 

small entities and their associated units are driven by lower 

electricity generation relative to the base case. Another main 

driver of small entity impacts are higher fuel costs, which the 

affected units would incur irrespective of whether they had to 

comply with this rule. In addition, EPA’s decision to exclude 

units smaller than 25 MWe has already significantly reduced the 
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burden on hundreds of small entities. Hence, EPA has concluded 

that there is no SISNOSE for this rule.

D. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 

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

otherwise prohibited by law, to assess the effects of their 

regulatory actions on state, local, and tribal governments and 

the private sector. The Transport Rule program inclusive of 

this supplemental rule contains a Federal mandate that may 

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

and tribal governments, in the aggregate, or the private sector 

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

202 of the UMRA a written statement that is summarized in 

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

Consistent with the intergovernmental consultation 

provisions of section 204 of the UMRA, EPA held consultations 

with the governmental entities affected by the final Transport 

Rule and this supplemental rule. As detailed in section XII.D 

of the preamble to the final Transport Rule, EPA participated in 

informational calls with the Environmental Council of the States 

(ECOS) and the National Governors Association to provide 

information about the January 7, 2011 NODA13 directly to state 

and local officials and conducted consultations with federally 

recognized tribes prior to finalizing the final Transport Rule 

and issuing the supplemental notice of proposed rulemaking for 

the action being finalized here for inclusion of six additional 

states (of which only three being finalized today —-Iowa, 

 

13

 76 FR 1109 (January 7, 2011).
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Michigan, and Wisconsin—-have Indian country within their

boundaries).

EPA believes that no unfunded mandates have been created by 

the Transport Rule program inclusive of this action. Neither the 

final Transport Rule nor the provisions in this SNPR have 

regulatory requirements that might significantly or uniquely 

affect small governments.

E. Executive Order 13132: Federalism

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

Transport Rule, EPA has concluded that the Transport Rule 

program inclusive of this supplemental rule does not have 

federalism implications. Thus, Executive Order 13132 does not 

apply to the final Transport Rule or to this SNPR.

F. Executive Order 13175: Consultation and Coordination 

with Indian Tribal Governments

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

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

implications, that imposes substantial direct compliance costs, 

and that is not required by statute, unless the Federal 

government provides the funds necessary to pay the direct 

compliance costs incurred by tribal governments, or EPA consults 

with tribal officials early in the process of developing the 

proposed regulation and develops a tribal summary impact 

statement. EPA has concluded that this action may have tribal 

implications. As described in section XII.F of the preamble to 

the final Transport Rule, EPA believes that there has been 

proper consultation and coordination with Indian tribal 

governments for the Transport Rule program inclusive of this 

supplemental rule.
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As required by section 7(a) of the Executive Order, EPA’s 

Tribal Consultation Official has certified that the requirements 

of the Executive Order have been met in a meaningful and timely 

manner. A copy of the certification is included in the docket 

for the final Transport Rule.

G. Executive Order 13045: Protection of Children from 

Environmental Health and Safety Risks

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

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

significant” as defined under EO 12866, and 2) concerns an 

environmental health or safety risk that EPA has reason to 

believe may have a disproportionate effect on children. If the 

regulatory action meets both criteria, the Agency must evaluate 

the environmental health or safety effects of this planned rule 

on children, and explain why this planned regulation is 

preferable to other potentially effective and reasonably 

feasible alternatives considered by the Agency.

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

Transport Rule, the Transport Rule program inclusive of this 

supplemental rule is not subject to Executive Order 13045 

because it does not involve decisions that increase 

environmental health or safety risks that may disproportionately 

affect children. The EPA believes that the emissions reductions 

from the strategies in the Transport Rule program inclusive of 

this action will further improve air quality and will further 

improve children’s health. 

H. Executive Order 13211: Actions that Significantly Affect

Energy Supply, Distribution, or Use

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

that agencies shall prepare and submit to the Administrator of 
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the Office of Regulatory Affairs, OMB, a Statement of Energy 

Effects for certain actions identified as “significant energy 

actions.” Section 4(b) of Executive Order 13211 defines 

“significant energy action” as “any action by an agency 

(normally published in the Federal Register) that promulgates or 

is expected to lead to the promulgation of a final rule or 

regulation, including notices of inquiry, advance notices of 

proposed rulemaking, and notices of proposed rulemaking: (1) 

(i) that is a significant regulatory action under Executive 

Order 12866 or any successor order, and (ii) is likely to have a 

significant adverse effect on the supply, distribution, or use 

of energy; or (2) that is designated by the Administrator of the 

Office of Information and Regulatory Affairs as a significant 

energy action.” This rule is a significant regulatory action 

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

significant adverse effect on the supply, distribution, or use 

of energy. EPA prepared a Statement of Energy Effects for the 

Transport Rule program inclusive of this supplemental rule which 

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

Rule.

EPA believes that there is no impact to the energy supply 

beyond that which is reported for the Transport Rule program 

inclusive of this supplemental rule in the final Transport Rule.

I. National Technology Transfer Advancement Act

Section 12(d) of the National Technology Transfer and 

Advancement Act of 1995 (‘‘NTTAA’’), Public Law 104–113, 12(d) 

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

standards in its regulatory activities unless to do so would be 

inconsistent with applicable law or otherwise impractical. 

Voluntary consensus standards are technical standards (e.g., 
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materials specifications, test methods, sampling procedures, and 

business practices) that are developed or adopted by voluntary 

consensus standards bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations when the Agency decides not 

to use available and applicable voluntary consensus standards. 

As described in section XII.I of the preamble to the final 

Transport Rule, the Transport Rule program inclusive of this 

supplemental rule will require all sources to meet the 

applicable monitoring requirements of 40 CFR part 75. Part 75 

already incorporates a number of voluntary consensus standards. 

J. Executive Order 12898: Federal Actions to Address

Environmental Justice in Minority Populations and Low-Income

Populations

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

establishes federal executive policy on environmental justice. 

Its main provision directs federal agencies, to the greatest 

extent practicable and permitted by law, to make environmental 

justice part of their mission by identifying and addressing, as 

appropriate, disproportionately high and adverse human health or 

environmental effects of their programs, policies, and 

activities on minority, low-income, and Tribal populations in 

the United States. During development of this Transport Rule 

program inclusive of this supplemental rule, EPA considered its 

impacts on low-income, minority, and tribal communities in 

several ways and provided multiple opportunities for these 

communities to meaningfully participate in the rulemaking 

process. As described in section XII.J of the preamble to the 

final transport Rule, EPA believes that the final remedy in the 

Transport Rule program inclusive of this supplemental rule 

addresses potential environmental justice concerns about 
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localized hot spots and reduces ambient concentrations of 

pollution where they are most needed by sensitive and vulnerable 

populations.

EPA believes that the vast majority of communities and 

individuals in areas covered by the Transport Rule program 

inclusive of this action, including numerous low-income, 

minority, and tribal individuals and communities in both rural 

areas and inner cities in the eastern and central U.S., will see 

significant improvements in air quality and resulting 

improvements in health. EPA’s assessment of the effects of the 

final Transport Rule program inclusive of this supplemental rule 

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

preamble to the final Transport Rule. Based on this assessment, 

EPA concludes that we do not expect disproportionately high and 

adverse human health or environmental effects on minority, lowincome, or tribal populations in the United States as a result 

of implementing the Transport Rule program inclusive of this 

action.

K. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as 

added by the Small Business Regulatory Enforcement Fairness Act 

of 1996, generally provides that before a rule may take effect, 

the agency promulgating the rule must submit a rule report, 

which includes a copy of the rule, to each House of the Congress 

and to the Comptroller General of the United States. EPA will 

submit a report containing this rule and other required 

information to the U.S. Senate, the U.S. House of 

Representatives, and the Comptroller General of the United 

States prior to publication of the rule in the Federal Register. 
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A Major rule cannot take effect until 60 days after it is 

published in the Federal Register. This action is a “major rule” 

as defined by 5 U.S.C. 804(2). This rule will be effective 

[INSERT DATE 60 DAYS AFTER PUBLICATION IN THE FEDERAL REGISTER].

L. Judicial Review

Petitions for judicial review of this action must be filed 

in the United States Court of Appeals for the District of 

Columbia Circuit by [INSERT DATE 60 DAYS AFTER DATE OF 

PUBLICATION]. Section 307(b)(1) of the CAA indicates which 

Federal Courts of Appeal have venue for petitions of review of 

final actions by EPA. This section provides, in part, that 

petitions for review must be filed in the Court of Appeals for 

the District of Columbia Circuit if (i) the agency action 

consists of “nationally applicable regulations promulgated, or 

final action taken, by the Administrator,” or (ii) such action 

is locally or regionally applicable, if “such action is based on 

a determination of nationwide scope or effect and if in taking 

such action the Administrator finds and publishes that such 

action is based on such a determination.”

Any final action related to the Transport Rule is 

“nationally applicable” within the meaning of section 307(b)(1). 

Through this rule, EPA interprets section 110 of the CAA, a 

provision which has nationwide applicability. In addition, the 

Transport Rule applies to 27 States. The Transport Rule is also 

based on a common core of factual findings and analyses 

concerning the transport of pollutants between the different 

states subject to it. For these reasons, the Administrator also 

is determining that any final action regarding the Transport 

Rule is of nationwide scope and effect for purposes of section 

307(b)(1). Thus, pursuant to section 307(b) any petitions for 
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review of final actions regarding the Transport Rule must be 

filed in the Court of Appeals for the 

District of Columbia Circuit within 60 days from the date final 

action is published in the Federal Register.

Filing a petition for reconsideration of this action does 

not affect the finality of this rule for the purposes of 

judicial review nor does it extend the time within which a 

petition for judicial review may be filed and shall not postpone 

the effectiveness of such rule or action. In addition, pursuant

to CAA section 307(b)(2) this action may not be challenged later 

in proceedings to enforce its requirements.

List of Subjects 

40 CFR Part 52

Administrative practice and procedure, Air pollution 

control, Intergovernmental relations, Nitrogen oxides, Ozone, 

Particulate matter, Regional haze, Reporting and recordkeeping 

requirements, Sulfur dioxide.

40 CFR Part 97

Administrative practice and procedure, Air pollution 

control, Electric utilities, Nitrogen oxides, Reporting and 

recordkeeping requirements, Sulfur dioxide. 
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Federal Implementation Plans for Iowa, Kansas, Michigan, 

Missouri, Oklahoma, and Wisconsin to Reduce Interstate Transport 

of Ozone (Page 59 of 64)

___________________________________

Dated: 

___________________________________

Lisa P. Jackson,

Administrator

For the reasons set forth in the preamble, parts 52 and 97 of 

chapter I of title 40 of the Code of Federal Regulations are 

amended as follows:

PART 52—[AMENDED]

1. The authority citation for Part 52 continues to read as 

follows:

Authority: 42 U.S.C. 7401, et seq.
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Subpart A—General Provisions

§ 52.38 [Amended]

2. Section 52.38 is amended by:

a. In paragraph (b)(2), add, after the word “Indiana”, the 

word “Iowa”, add, after the word “Maryland”, the word 

“Michigan”, add after the word “Mississippi”, the word 

“Missouri”, add after the word “Ohio”, the word “Oklahoma”, and 

remove the words “and West Virginia” and add, in their place, 

the words “West Virginia, and Wisconsin”; 

b. In paragraph (b)(3)(v)(A), add, after the words “October 

17, 2011”, the words “or, for Iowa, Michigan, Missouri, 

Oklahoma, and Wisconsin, [INSERT DATE 70 DAYS AFTER DATE OF

PUBLICATION IN THE FEDERAL REGISTER]” and add, after the words 

“April 1, 2012”, the words “or, for Iowa, Michigan, Missouri, 

Oklahoma, and Wisconsin, October 1, 2012”; and

c. In paragraph (b)(3)(v)(B), add, after the words “April 

1, 2012”, the words “or, for Iowa, Michigan, Missouri, Oklahoma, 

and Wisconsin, October 1, 2012”.

Subpart Q—Iowa

3. Section 52.840 is amended by adding a new paragraph (b) to 

read as follows:
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§ 52.840 Interstate pollutant transport provisions; What are the 

FIP requirements for decreases in emissions of nitrogen oxides?

* * * * *

(b)(1) The owner and operator of each source and each unit 

located in the State of Iowa and Indian country within the 

borders of the State and for which requirements are set forth 

under the TR NOX Ozone Season Trading Program in subpart BBBBB of 

part 97 of this chapter must comply with such requirements. The 

obligation to comply with such requirements with regard to 

sources and units in the State will be eliminated by the 

promulgation of an approval by the Administrator of a revision 

to Iowa’s State Implementation Plan (SIP) as correcting the 

SIP’s deficiency that is the basis for the TR Federal 

Implementation Plan under §52.38(b), except to the extent the 

Administrator’s approval is partial or conditional. The 

obligation to comply with such requirements with regard to 

sources and units located in Indian country within the borders 

of the State will not be eliminated by the promulgation of an 

approval by the Administrator of a revision to Iowa’s SIP.

(2) Notwithstanding the provisions of paragraph (b)(1) of this 

section, if, at the time of the approval of Iowa’s SIP revision 

described in paragraph (b)(1) of this section, the Administrator 
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has already started recording any allocations of TR NOX Ozone 

Season allowances under subpart BBBBB of part 97 of this chapter 

to units in the State for a control period in any year, the 

provisions of subpart BBBBB of part 97 of this chapter 

authorizing the Administrator to complete the allocation and 

recordation of TR NOX Ozone Season allowances to units in the 

State for each such control period shall continue to apply, 

unless provided otherwise by such approval of the State’s SIP 

revision. 

Subpart X—Michigan 

4. Section 52.1186 is amended by adding a new paragraph (e) to 

read as follows:

§ 52.1186 Interstate pollutant transport provisions; What are 

the FIP requirements for decreases in emissions of nitrogen 

oxides?

* * * * *

(e)(1) The owner and operator of each source and each unit 

located in the State of Michigan and Indian country within the 

borders of the State and for which requirements are set forth 

under the TR NOX Ozone Season Trading Program in subpart BBBBB of 

part 97 of this chapter must comply with such requirements. The 

obligation to comply with such requirements with regard to 
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sources and units in the State will be eliminated by the 

promulgation of an approval by the Administrator of a revision 

to Michigan’s State Implementation Plan (SIP) as correcting the 

SIP’s deficiency that is the basis for the TR Federal 

Implementation Plan under §52.38(b), except to the extent the 

Administrator’s approval is partial or conditional. The 

obligation to comply with such requirements with regard to 

sources and units located in Indian country within the borders 

of the State will not be eliminated by the promulgation of an 

approval by the Administrator of a revision to Michigan’s SIP.

(2) Notwithstanding the provisions of paragraph (e)(1) of this 

section, if, at the time of the approval of Michigan’s SIP 

revision described in paragraph (e)(1) of this section, the 

Administrator has already started recording any allocations of 

TR NOX Ozone Season allowances under subpart BBBBB of part 97 of 

this chapter to units in the State for a control period in any 

year, the provisions of subpart BBBBB of part 97 of this chapter 

authorizing the Administrator to complete the allocation and 

recordation of TR NOX Ozone Season allowances to units in the 

State for each such control period shall continue to apply, 

unless provided otherwise by such approval of the State’s SIP 

revision. 
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Subpart AA—Missouri

5. Section 52.1341 is amended by adding a new paragraph (b) to

read as follows:

§ 52.1341 Interstate pollutant transport provisions; What are 

the FIP requirements for decreases in emissions of nitrogen 

oxides?

* * * * *

(b)(1) The owner and operator of each source and each unit 

located in the State of Missouri and for which requirements are 

set forth under the TR NOX Ozone Season Trading Program in 

subpart BBBBB of part 97 of this chapter must comply with such 

requirements. The obligation to comply with such requirements 

will be eliminated by the promulgation of an approval by the 

Administrator of a revision to Missouri’s State Implementation 

Plan (SIP) as correcting the SIP’s deficiency that is the basis 

for the TR Federal Implementation Plan under §52.38(b), except 

to the extent the Administrator’s approval is partial or 

conditional.

(2) Notwithstanding the provisions of paragraph (b)(1) of this 

section, if, at the time of the approval of Missouri’s SIP 

revision described in paragraph (b)(1) of this section, the 
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Administrator has already started recording any allocations of 

TR NOX Ozone Season allowances under subpart BBBBB of part 97 of 

this chapter to units in the State for a control period in any 

year, the provisions of subpart BBBBB of part 97 of this chapter 

authorizing the Administrator to complete the allocation and 

recordation of TR NOX Ozone Season allowances to units in the 

State for each such control period shall continue to apply, 

unless provided otherwise by such approval of the State’s SIP 

revision. 

Subpart LL—Oklahoma

6. Section 52.1930 is added to read as follows:

§ 52.1930 Interstate pollutant transport provisions; What are 

the FIP requirements for decreases in emissions of nitrogen 

oxides?

(a) The owner and operator of each source and each unit located 

in the State of Oklahoma and Indian country within the borders 

of the State and for which requirements are set forth under the 

TR NOX Ozone Season Trading Program in subpart BBBBB of part 97 

of this chapter must comply with such requirements. The 

obligation to comply with such requirements with regard to 

sources and units in the State will be eliminated by the 

promulgation of an approval by the Administrator of a revision 
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to Oklahoma’s State Implementation Plan (SIP) as correcting the 

SIP’s deficiency that is the basis for the TR Federal 

Implementation Plan under §52.38(b), except to the extent the 

Administrator’s approval is partial or conditional. The 

obligation to comply with such requirements with regard to 

sources and units located in Indian country within the borders 

of the State will not be eliminated by the promulgation of an 

approval by the Administrator of a revision to Oklahoma’s SIP.

(b) Notwithstanding the provisions of paragraph (a) of this 

section, if, at the time of the approval of Oklahoma’s SIP 

revision described in paragraph (a) of this section, the 

Administrator has already started recording any allocations of 

TR NOX Ozone Season allowances under subpart BBBBB of part 97 of 

this chapter to units in the State for a control period in any 

year, the provisions of subpart BBBBB of part 97 of this chapter 

authorizing the Administrator to complete the allocation and 

recordation of TR NOX Ozone Season allowances to units in the 

State for each such control period shall continue to apply, 

unless provided otherwise by such approval of the State’s SIP 

revision. 

Subpart YY—Wisconsin 
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7. Section 52.2587 is amended by adding a new paragraph (e) to 

read as follows:

§ 52.2587 Interstate pollutant transport provisions; What are 

the FIP requirements for decreases in emissions of nitrogen 

oxides?

* * * * *

(e)(1) The owner and operator of each source and each unit 

located in the State of Wisconsin and Indian country within the 

borders of the State and for which requirements are set forth 

under the TR NOX Ozone Season Trading Program in subpart BBBBB of 

part 97 of this chapter must comply with such requirements. The 

obligation to comply with such requirements with regard to 

sources and units in the State will be eliminated by the 

promulgation of an approval by the Administrator of a revision 

to Wisconsin’s State Implementation Plan (SIP) as correcting the 

SIP’s deficiency that is the basis for the TR Federal 

Implementation Plan under §52.38(b), except to the extent the 

Administrator’s approval is partial or conditional. The 

obligation to comply with such requirements with regard to 

sources and units located in Indian country within the borders 

of the State will not be eliminated by the promulgation of an 

approval by the Administrator of a revision to Wisconsin’s SIP.
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(2) Notwithstanding the provisions of paragraph (e)(1) of this 

section, if, at the time of the approval of Wisconsin’s SIP 

revision described in paragraph (e)(1) of this section, the 

Administrator has already started recording any allocations of 

TR NOX Ozone Season allowances under subpart BBBBB of part 97 of 

this chapter to units in the State for a control period in any 

year, the provisions of subpart BBBBB of part 97 of this chapter 

authorizing the Administrator to complete the allocation and 

recordation of TR NOX Ozone Season allowances to units in the 

State for each such control period shall continue to apply, 

unless provided otherwise by such approval of the State’s SIP 

revision. 

PART 97—[AMENDED]

8. The authority citation for Part 97 continues to read as 

follows:

Authority: 42 U.S.C. 7401, 7403, 7410, 7426, 7601, and 

7651, et seq.

9. Section 97.510 is revised to read as follows: 
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§ 97.510 State NOX Ozone Season trading budgets, new unit setasides, Indian country new unit set-aside, and variability 

limits.

(a) The State NOX Ozone Season trading budgets, new unit setasides, and Indian country new unit set-asides for allocations 

of TR NOX Ozone Season allowances for the control periods in 2012 

and thereafter are as follows: 

State

NOX Ozone Season 

trading budget 

(tons)*

for 2012 and 2013

New unit setaside (tons)

for 2012 and 

2013

Indian country 

new unit setaside (tons)

for 2012 and 2013

Alabama 31,746 635 ---

Arkansas 15,037 301 ---

Florida 27,825 529 28

Georgia 27,944 559 ---

Illinois 21,208 1,697 ---

Indiana 46,876 1,406 ---

Iowa 16,532 314 17

Kentucky 36,167 1,447 ---

Louisiana 13,432 390 13

Maryland 7,179 144 ---

Michigan 28,041 533 28

Mississippi 10,160 193 10

Missouri 22,762 683 ---

New Jersey 3,382 68 ---

New York 8,331 242 8

North 

Carolina

22,168 1,308 22

Ohio 40,063 801 ---
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Oklahoma 36,567 21,835 731 437 ---

Pennsylvania 52,201 1,044 ---

South 

Carolina

13,909 264 14

Tennessee 14,908 298 ---

Texas 63,043 1,828 63

Virginia 14,452 723 ---

West 

Virginia

25,283 1,264 ---

Wisconsin 14,784 872 15

State

NOX Ozone Season 

trading budget 

(tons)*

for 2014 and 

thereafter

New unit setaside (tons)

for 2014 and 

thereafter

Indian country 

new unit setaside (tons)

for 2014 and 

thereafter

Alabama

31,499 630 ---

Arkansas

15,037 301 ---

Florida

27,825 529 28

Georgia

18,279 366 ---

Illinois

21,208 1,697 ---

Indiana

46,175 1,385 ---

Iowa

16,207 308 16

Kentucky

32,674 1,307 ---

Louisiana

13,432 390 13

Maryland

7,179 144 ---

Michigan

27,016 513 27
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Mississippi

10,160 193 10

Missouri

21,073 632 ---

New Jersey

3,382 68 ---

New York

8,331 242 8

North 

Carolina

18,455 1,089 18

Ohio

37,792 756 ---

Oklahoma

21,835 437 ---

Pennsylvania

51,912 1,038 ---

South 

Carolina

13,909 264 14

Tennessee

8,016 160 ---

Texas

63,043 1,828 63

Virginia

14,452 723 ---

West 

Virginia

23,291 1,165 ---

Wisconsin

14,296 844 14

* Each trading budget includes the new unit set-aside and, where 

applicable, the Indian country new unit set-aside and does not 

include the variability limit.

(b) The States’ variability limits for the State NOX Ozone Season 

trading budgets for the control periods in 2012 and thereafter 

are as follows: 

State

Variability limits

for 2012 and 2013

Variability limits

for 2014 and thereafter

Alabama 6,667 6,615
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Arkansas 3,158 3,158

Florida 5,843 5,843

Georgia 5,868 3,839

Illinois 4,454 4,454

Indiana 9,844 9,697

Iowa 3,472 3,403

Kentucky 7,595 6,862

Louisiana 2,821 2,821

Maryland 1,508 1,508

Michigan 5,889 5,673

Mississippi 2,134 2,134

Missouri 4,780 4,425

New Jersey 710 710

New York 1,750 1,750

North 

Carolina 4,655 3,876

Ohio 8,413 7,936

Oklahoma 7,679 4,585 4,585

Pennsylvania 10,962 10,902

South 

Carolina 2,921 2,921

Tennessee 3,131 1,683

Texas 13,239 13,239

Virginia 3,035 3,035

West 

Virginia 5,309 4,891

Wisconsin 3,105 3,002

§ 97.521 [Amended]

10. Section 97.521 is amended by:

a. In paragraph (a) add, after the words “November 7, 

2011”, the words “or, with regard to units in Iowa, Michigan, 
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Missouri, Oklahoma, and Wisconsin, [INSERT DATE 90 DAYS AFTER 

DATE OF PUBLICATION IN THE FEDERAL REGISTER]”;

b. In paragraph (b) introductory text, add, after the words 

“November 7, 2011”, the words “or, with regard to units in Iowa, 

Michigan, Missouri, Oklahoma, and Wisconsin, [INSERT DATE 90 

DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]”, add, 

after the words “October 17, 2011”, the words “or, with regard 

to TR NOX Ozone Season units in Iowa, Michigan, Missouri, 

Oklahoma, and Wisconsin, [INSERT DATE 70 DAYS AFTER DATE OF 

PUBLICATION IN THE FEDERAL REGISTER]”, and add, after the words 

“April 1, 2012”, the words “or, with regard to units in Iowa, 

Michigan, Missouri, Oklahoma, and Wisconsin, October 1, 2012”; 

c. In paragraph (b)(1), add, after the words “April 1, 

2012”, the words “or, with regard to TR NOX Ozone Season units in 

Iowa, Michigan, Missouri, Oklahoma, and Wisconsin, by October 1, 

2012”, and add, after the words “April 15, 2012”, the words “or, 

with regard to units in Iowa, Michigan, Missouri, Oklahoma, and 

Wisconsin, October 15, 2012”;

d. In paragraph (b)(2), add, after the words “April 1, 

2012”, the words “or, with regard to units in Iowa, Michigan, 

Missouri, Oklahoma, and Wisconsin, October 1, 2012”, and add, 

after the words “by October 1, 2012” whenever they appear, the 
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words “or, with regard to units in Iowa, Michigan, Missouri, 

Oklahoma, and Wisconsin, April 1, 2013”; and

e. In paragraph (b)(3), add, after the words “April 1, 

2012”, the words “or, with regard to units in Iowa, Michigan, 

Missouri, Oklahoma, and Wisconsin, October 1, 2012”, and add, 

after the words “by October 1, 2012” whenever they appear, the 

words “or, with regard to units in Iowa, Michigan, Missouri, 

Oklahoma, and Wisconsin, April 1, 2013”.