Federal Register / Vol. 76, No. 139 / Wednesday, July 20, 2011 / Rules and Regulations 43143 

F. Executive Order 13175, Coordination 

With Indian Tribal Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000), because the SIP EPA is 

disapproving would not apply in Indian 

country located in the State, and EPA 

notes that it will not impose substantial 

direct costs on tribal governments or 

preempt tribal law. Thus, Executive 

Order 13175 does not apply to this 

action. 

G. Executive Order 13045, Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets Executive Order 13045 

(62 FR 19885, April 23, 1997) as 

applying only to those regulatory 

actions that concern health or safety 

risks, such that the analysis required 

under section 5–501 of the Executive 

Order has the potential to influence the 

regulation. This action is not subject to 

Executive Order 13045 because it 

because it is not an economically 

significant regulatory action based on 

health or safety risks subject to 

Executive Order 13045 (62 FR 19885, 

April 23, 1997). This SIP disapproval 

under section 110 and subchapter I, part 

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

create any new regulations but simply 

disapproves certain state requirements 

for inclusion into the SIP. 

H. Executive Order 13211, Actions That 

Significantly Affect Energy Supply, 

Distribution or Use 

This action is not subject to Executive 

Order 13211 (66 FR 28355, May 22, 

2001) because it is not a significant 

regulatory action under Executive Order 

12866. 

I. National Technology Transfer and 

Advancement Act (NTTAA) 

Section 12(d) of the NTTAA, Public 

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

272 note) directs EPA to use voluntary 

consensus standards in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures, and 

business practices) that are developed or 

adopted by voluntary consensus 

standards bodies. NTTAA directs EPA 

to provide Congress, through the Office 

of Management and Budget, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. EPA 

believes that this action is not subject to 

requirements of Section 12(d) of 

NTTAA because application of those 

requirements would be inconsistent 

with the CAA. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629, 

February 16, 1994) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA lacks the discretionary authority 

to address environmental justice in this 

proposed action. In reviewing SIP 

submissions, EPA’s role is to approve or 

disapprove state choices, based on the 

criteria of the CAA. Accordingly, this 

action merely proposes to disapprove 

certain state requirements for inclusion 

into the SIP under section 110 and 

subchapter I, part D of the CAA and will 

not in-and-of itself create any new 

requirements. Accordingly, it does not 

provide EPA with the discretionary 

authority to address, as appropriate, 

disproportionate human health or 

environmental effects, using practicable 

and legally permissible methods, under 

Executive Order 12898. 

K. Petitions for Judicial Review 

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

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by September 19, 2011. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Particulate matter, Reporting and 

recordkeeping requirements. 

Dated: June 28, 2011. 

A. Stanley Meiburg, 

Acting Regional Administrator, Region 4. 

40 CFR part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart S—Kentucky 

■ 2. Section 52.933 is amended by 

adding paragraph (c), to read as follows: 

§ 52.933 Control strategy: Sulfur oxides 

and particulate matter. 

* * * * * 

(c) Disapproval. EPA is disapproving 

portions of Kentucky’s Infrastructure 

SIP for the 2006 24-hour PM2.5 NAAQS 

addressing interstate transport, 

specifically with respect to section 

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

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

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R07–OAR–2011–0279; FRL–9436–1] 

Approval and Promulgation of Air 

Quality Implementation Plan; Kansas; 

Final Disapproval of Interstate 

Transport State Implementation Plan 

Revision for the 2006 24-hour PM2.5

NAAQS 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: Pursuant to our authority 

under the Clean Air Act (CAA or Act), 

the Environmental Protection Agency 

(EPA) is taking final action to 

disapprove the portion of the 

‘‘Infrastructure’’ State Implementation 

Plan (SIP) submittal from the State of 

Kansas intended to address the CAA 

section relating to the ‘‘interstate 

transport’’ requirements for the 2006 24- 

hour fine particle (PM2.5) National 

Ambient Air Quality Standards 

(NAAQS) that prohibit a state from 

significantly contributing to 

nonattainment or interfering with 

maintenance of the NAAQS in any other 

state. This final action to disapprove the 

‘‘interstate transport’’ portion of the 

Kansas SIP submittal, received by EPA 

on April 12, 2010, only relates to those 

provisions and does not address the 

other portions of Kansas’ April 12, 2010, 

submission. The rationale for this action 

and additional detail on this 

disapproval was described in EPA’s 

proposed rulemaking published in the 

Federal Register on the March 18, 2011. 

The effect of this action will be the 


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43144 Federal Register / Vol. 76, No. 139 / Wednesday, July 20, 2011 / Rules and Regulations 

promulgation of a Federal 

Implementation Plan (FIP) for Kansas no 

later than two years from the date of 

disapproval. The proposed Transport 

Rule, when final, is the FIP that EPA 

intends to implement for Kansas. 

DATES: Effective Date: This rule is 

effective on August 19, 2011. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R07–OAR–2011–0279. All 

documents in the docket are listed on 

the http://www.regulations.gov index. 

Although listed in the index, some 

information is not publicly available, 

i.e., Confidential Business Information 

(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 U.S. Environmental 

Protection Agency, Region 7, in the Air 

Planning and Development Branch of 

the Air and Waste Management 

Division, 901 North 5th Street, Kansas 

City, Kansas 66101. EPA requests that, 

if at all possible, you contact the person 

listed in the FOR FURTHER INFORMATION

CONTACT section to schedule your 

inspection. The interested persons 

wanting to examine these documents 

should make an appointment with the 

office at least 24 hours in advance. The 

Regional Office official hours of 

business are Monday through Friday, 

8 to 4:30, excluding Federal holidays. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Elizabeth Kramer, Environmental 

Scientist, Air Planning and 

Development Branch, U.S. 

Environmental Protection Agency, 

Region 7, 901 North 5th Street, Kansas 

City, Kansas 66101; telephone number: 

(913) 551–7186; fax number: (913) 551– 

7844; e-mail address: 

kramer.elizabeth@epa.gov. 

Judicial Review 

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

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by September 19, 2011. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. These sections provide additional 

information on this final action: 

I. Background 

II. EPA’s Responses to Comments on the 

Proposal 

III. Final Action 

IV. Administrative Requirements 

I. Background 

On March 18, 2011 (76 FR 14831– 

14835), EPA proposed to disapprove a 

portion of the ‘‘Infrastructure’’ SIP (CAA 

110(a)(1) and (2)) submittal from the 

State of Kansas relating to the interstate 

transport element of infrastructure (CAA 

section 110(a)(2)(D)(i)(I)). For additional 

detail on this final action, see the 

proposed rulemaking. 

Section 110(a)(2) of the CAA lists the 

thirteen required elements that 

‘‘infrastructure’’ SIPs must address, as 

applicable, including section 

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

interstate transport of certain emissions. 

These ‘‘good neighbor’’ provisions 

require each state to submit a SIP that 

prohibits emissions which adversely 

affect another state in the ways 

contemplated in the statute. The section 

110(a)(2)(D)(i), portion of Kansas’ SIP 

must prevent sources in the State from 

emitting pollutants in amounts which 

will: (I) Contribute significantly to 

nonattainment of the NAAQS in other 

states and interfere with maintenance of 

the NAAQS in other states and (II) 

interfere with provisions to prevent 

significant deterioration of air quality in 

other states or interfere with efforts to 

protect visibility in other states. 

On April 12, 2010, EPA received a SIP 

revision from the State of Kansas 

intended to address the requirements of 

section 110(a)(2) including the 

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

for the 2006 24-hour PM2.5 NAAQS. In 

this final rulemaking, EPA is 

disapproving only the 110(a)(2)(D)(i)(I) 

portion of the submittal that pertains to 

prohibiting sources in Kansas from 

emitting pollutants that significantly 

contribute to nonattainment or interfere 

with maintenance of the 2006 24-hour 

PM2.5 NAAQS in other states. The 

elements on which we are taking action 

today are severable portions of the 

submittal. EPA plans to act on the 

additional portions of the State’s 

submittal in a subsequent action. 

The requirements of section 

110(a)(2)(D)(i)(I), as well as EPA’s 

analysis of the State’s submission, are 

explained in detail in the proposal. The 

reader should refer to the proposal for 

further explanation of EPA’s rationale 

for the proposed disapproval. 

II. EPA’s Responses to Comments on the 

Proposal 

Overview of Comments 

Formal comments were received from 

commenters on behalf of two utility 

companies in Kansas (the Kansas City 

Board of Public Utilities and Westar 

Energy) regarding EPA’s March 18, 2011 

proposed disapproval (76 FR 14831). 

The commenters submitted identical 

comments regarding EPA’s proposed 

rulemaking. EPA has summarized the 

comments and responded to each 

within this section of this final 

rulemaking. 

1. Comment: The commenters argued 

that EPA’s proposed disapproval action 

did not clearly describe how the State 

lacked a technical demonstration 

showing that Kansas sources did not 

significantly contribute to 

nonattainment or interfere with 

maintenance of the 2006 PM2.5 NAAQS. 

The commenters stated that the State’s 

demonstration consisted of the 

following: (1) Kansas met the 

demonstration requirement ‘‘by 

indicating that’’ its sources do not 

significantly interfere with attainment 

or maintenance in downwind states; 

and (2) Kansas supported this assertion 

by stating that Kansas sources had 

reduced PM2.5 precursor emissions 

(below 2005 National Emissions 

Inventory levels) by 32 percent for 

nitrogen oxides (NOX) and 58 percent 

for sulfur oxides (SOx), ‘‘suggesting the 

State’s emissions would not exceed’’ the 

2006 PM2.5 NAAQS. 

EPA Response: In the proposal, EPA 

stated two bases for its proposed 

disapproval: (1) Absence of a technical 

demonstration showing that Kansas 

sources do not significantly contribute 

to nonattainment or interfere with 

maintenance of the 2006 24-hour PM2.5

NAAQS; and (2) information in the 

preliminary modeling for EPA’s 

Transport Rule which conflicted with 

the State’s conclusory statement that 

Kansas sources did not significantly 

impact downwind nonattainment or 

interfere with maintenance. The mere 

‘‘indication’’ that Kansas sources do not 

significantly contribute to downwind 

nonattainment or interfere with 

maintenance is not a demonstration, but 

rather an unsupported conclusion. A 

statement regarding decreases in PM2.5

precursor emissions compared to a 2005 

inventory does not ‘‘suggest,’’ much less 

demonstrate, that the air quality impact 

of those emissions reductions on 


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Federal Register / Vol. 76, No. 139 / Wednesday, July 20, 2011 / Rules and Regulations 43145 

1See EPA’s proposed disapproval on March 18, 

2011 (76 FR 14831–14835). 2See ‘‘Federal Implementation Plans to Reduce 

Interstate Transport of Fine Particulate Matter and 

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

2010). 

3See Section IV on Defining ‘‘Significant 

Contribution’’ and ‘‘Interference With 

Maintenance,’’ 75 FR 45229 of ‘‘Federal 

Implementation Plans to Reduce Interstate 

Transport of Fine Particulate Matter and Ozone; 

Proposed Rule,’’ 75 FR 45210 (August 2, 2010). 

4See William T. Harnett, Director, Air Quality 

Policy Division, Office of Air Quality Planning and 

Standards. ‘‘Guidance on SIP Elements Required 

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

hour Fine Particle (PM2.5) National Ambient Air 

Quality Standards.’’ Memorandum to EPA Air 

Division Directors, Regions I–X (September 25, 

2009). 

downwind concentrations of PM2.5 are 

insignificant. 

Kansas included the following 

information in its attempt to address 

110(a)(2)(D)(i) requirements. The 

submittal described that Kansas has 

adopted, by reference, the Federal 

Prevention of Significant Deterioration 

regulations into the Kansas Air 

Regulations. In the submission, Kansas 

articulated its future intent to 

incorporate the new, 24-hour PM2.5

NAAQS into the State air regulations. 

Kansas also described its Regional Haze 

SIP to address visibility requirements, 

which is currently pending EPA review. 

In addition, the submittal included a 

summary of the emission reductions (in 

tons per year) of both NOX and SOX

anticipated to be achieved from four of 

the electric generating units (EGUs) in 

Kansas. Kansas then described the 

percentage of emission reductions 

expected from those facilities compared 

to previous emissions recorded in the 

National Emissions Inventory from 

2005. In the submittal, Kansas described 

certain projected emissions reductions 

from EGUs but did not submit any 

information on the impact of emissions 

either from the four units discussed in 

the submittal, or from other sources in 

the State of Kansas, on downwind 

nonattainment and maintenance of the 

2006 24-hour PM2.5 NAAQS in other 

states. Kansas did not submit an 

analysis of emissions from Kansas 

sources on downwind areas. In 

addition, the Regional Haze SIP 

submission referenced in the 

infrastructure SIP submission does not 

contain such analysis. The submittal 

lacked the needed information and 

analysis to address the requirements of 

CAA section 110(a)(2)(D)(i)(I) to 

demonstrate that: (1) Kansas does not 

have a significant contribution on 

nonattainment of the NAAQS and 

interference with maintenance of the 

NAAQS in other states; or (2) that the 

State has adequate measures in place to 

eliminate any significant contribution to 

nonattainment of the NAAQS and 

interference with maintenance of the 

NAAQS in other states. There was no 

demonstration that the requirements of 

section 110(a)(2)(D)(i)(I) have been met 

with respect to the 2006 PM2.5 NAAQS. 

2. Comment: The commenters argued 

that EPA’s proposed disapproval action1

improperly relied on the non-final, 

preliminary modeling performed for the 

proposed Transport Rule 2 (which 

showed that emissions from the State of 

Kansas significantly contributed to 

nonattainment and interference with 

maintenance of the 2006 24-hour PM2.5

NAAQS in downwind areas). The 

commenters posit that, by relying on the 

modeling results of the proposed 

Transport Rule (completed after Kansas 

submitted its SIP), EPA had determined 

that the proposed Transport Rule 

modeling ‘‘superseded’’ Kansas’ 

submittal, and that Kansas could receive 

approval of its SIP only if it had 

anticipated the subsequent modeling 

and had addressed the modeling in its 

SIP submittal. 

EPA Response: In the proposed 

disapproval of the Kansas SIP, EPA 

neither stated nor implied that Kansas 

could only have avoided a disapproval 

by addressing the proposed Transport 

Rule modeling in its original submittal. 

As stated in response to comment 1 

above, in the proposal EPA stated two 

bases for its proposed disapproval: (1) 

Absence of a technical demonstration 

showing that Kansas sources do not 

significantly contribute to 

nonattainment or interfere with 

maintenance of the 2006 24-hour PM2.5

NAAQS (discussed in detail in the 

response to comment 1, above); and (2) 

information in the preliminary 

modeling for the Transport Rule which 

conflicted with the State’s conclusory 

statement that Kansas sources did not 

significantly impact downwind 

nonattainment or interfere with 

maintenance of the 2006 NAAQS. With 

respect to the latter basis, the modeling 

for the proposed Transport Rule was not 

available to Kansas when it submitted 

the SIP and could not have been 

considered by Kansas at that time. The 

proposed disapproval of the Kansas 

submittal was not based on the fact that 

Kansas did not address the proposed 

Transport Rule modeling. However, the 

modeling was relevant to EPA’s 

proposed disapproval of the Kansas SIP, 

particularly in light of the fact that 

Kansas did not provide any technical 

demonstration at all regarding the 

interstate contribution issue, as 

discussed in the response to Comment 

1. Commenters had the opportunity, and 

in fact did, comment on the 

applicability of the preliminary 

modeling to EPA’s proposed action. 

EPA has now completed the modeling 

for the final Transport Rule and, as 

indicated by the technical support 

documents (TSDs) for this action, 

Kansas in fact significantly contributes 

to downwind nonattainment in another 

state and interferes with maintenance of 

the 2006 24-hour PM2.5 NAAQS in 

another state. Please see the TSDs for 

the final modeling and contribution 

analysis as they relate to this action. 

Nevertheless, the lack of any technical 

demonstration is sufficient basis to 

disapprove the SIP for this portion of 

the infrastructure element. However, as 

discussed in EPA’s proposed 

disapproval, EPA also noted that we had 

preliminary information from the 

modeling performed for the proposed 

Transport Rule showing that Kansas 

sources significantly contribute to 

nonattainment and interfere with 

maintenance of the 2006 24-hour PM2.5

NAAQS in downwind areas.3 At 

proposal for this action, it was 

appropriate for EPA to consider 

technical information available for the 

proposed Transport Rule, particularly in 

light of the complete absence of any air 

quality analysis in the Kansas submittal 

regarding downwind impacts of Kansas 

sources. EPA did not determine, as 

suggested by the commenters, that the 

preliminary Transport Rule modeling 

‘‘superseded’’ the Kansas submittal. The 

preliminary modeling merely provided 

an air quality impact analysis that the 

Kansas submittal lacked, and provided 

evidence that the mere assertion by 

Kansas of noncontribution was not only 

unsupported, but also incorrect. As 

noted above, the final modeling for the 

Transport Rule indicates that Kansas in 

fact significantly contributes to 

downwind nonattainment in another 

state and interferes with maintenance of 

the 2006 24-hour PM2.5 NAAQS in 

another state. 

3. Comment: Based on language in 

EPA’s 2009 Guidance document,4

commenters argued that EPA should 

have issued an incompleteness finding 

for the interstate transport (section 

110(a)(2)(D)(i)(I)) portion of the 

submittal rather than issuing EPA’s 

proposed disapproval action. The 

commenters argue that if EPA would 

have issued an incompleteness finding 

before the end of EPA’s six month 

statutory time-frame for determining 

completeness, Kansas could have cured 

its incomplete SIP submittal by 

addressing the preliminary modeling for 

the Transport Rule in preparing the 

required technical demonstration to 


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43146 Federal Register / Vol. 76, No. 139 / Wednesday, July 20, 2011 / Rules and Regulations 

address interstate transport 

requirements. The commenters further 

argue that, by choosing the disapproval 

option rather than the option of finding 

the submittal incomplete, the only 

remedial action is the FIP. Commenters 

assumed that EPA expected the State of 

Kansas to respond to the preliminary 

modeling of the proposed Transport 

Rule but that, as directed by the 2009 

Guidance, Kansas was not allowed to 

wait until the preliminary Transport 

Rule modeling was issued to develop 

the SIP submittal. 

EPA Response: EPA reiterates the 

explanation of its rationale for the 

disapproval described in response to 

Comments 1 and 2, above. In addition, 

the commenters’ assertion that EPA put 

the State at an unfair disadvantage by 

not finding the submittal incomplete 

instead of issuing a proposed 

disapproval is incorrect. We note 

initially that the commenters’ implicit 

conclusion that an incompleteness 

finding would not have triggered FIP 

obligations is not correct. Section 

110(c)(1) of the CAA provides that the 

FIP obligation is triggered either upon 

disapproval of a SIP, or upon a 

determination that a state has failed to 

submit a SIP (or has submitted a SIP 

determined to be incomplete). In fact, an 

incompleteness finding would have 

triggered EPA’s FIP obligation sooner 

than a final disapproval of the SIP. An 

incompleteness finding and a final 

disapproval each trigger a FIP clock. If 

EPA found the submittal to be 

incomplete, it would trigger a FIP 

obligation as of the date of the finding. 

Because such a finding is not subject to 

notice and comment rulemaking, while 

a disapproval requires such rulemaking, 

the FIP obligation would have been 

triggered much sooner. 

Therefore, even if relevant to EPA’s 

disapproval action, EPA did not create 

any unfair disadvantage for the State by 

its proposal to disapprove the submittal. 

Moreover, the State of Kansas did not 

submit any comments on the proposed 

rulemaking and did not submit any 

technical analysis in response to the 

proposed disapproval. The commenters 

speculate that, if EPA had determined 

the SIP was incomplete, Kansas would 

have submitted a supplement to its SIP 

submittal addressing the proposed 

Transport Rule modeling. The 

commenters imply that the proposed 

disapproval precluded Kansas from 

curing defects in the original submittal. 

However, in fact the proposed 

disapproval solicited comment on the 

proposed action, and did not foreclose 

Kansas from submitting the same 

information and analysis that the 

commenters argue would have been 

submitted after an incompleteness 

finding. Neither the commenters nor 

Kansas submitted any analysis in 

response to the proposed disapproval 

which might be relevant to downwind 

impacts of Kansas sources on PM2.5

concentrations. Therefore, Kansas was 

not disadvantaged by the proposed 

disapproval as contrasted with the 

incompleteness finding option 

advocated by the commenters. 

4. Comment: Commenters suggest that 

at the time of Kansas’ submittal, Kansas’ 

emissions had not ‘‘been deemed’’ by 

EPA to contribute to or interfere with 

downwind nonattainment or 

maintenance in other areas. The 

commenters assert that Kansas properly 

followed EPA’s 2009 Guidance by 

‘‘indicating’’ that ‘‘emissions from the 

State do not significantly interfere with 

attainment or maintenance of the 2006 

24-hour PM2.5 NAAQS in downwind 

states.’’ Furthermore, the commenters 

state that certain facts (such as NOX and 

SOX percent reductions over the values 

used in the preliminary Transport Rule 

modeling) demonstrate that Kansas 

submitted the required demonstration. 

EPA Response: See also EPA’s 

responses to Comment 1, 2 and 3 above. 

In addition, the CAA section 

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

develop SIPs that demonstrate that a SIP 

is adequate to prohibit sources in the 

state from significantly contributing to 

downwind nonattainment or 

interference with maintenance of a new 

or revised NAAQS in another state. The 

CAA places responsibility on the State 

to show that this requirement is met. 

Neither the Act nor the 2009 Guidance 

referenced by the commenters indicate 

that this requirement can be met by 

merely concluding that EPA has not 

found any significant contribution or 

interference with maintenance. It is also 

not sufficient to merely ‘‘indicate’’ that 

there is no significant downwind 

contribution. In addition, as discussed 

in detail in the response to Comment 1, 

the mere assertion that emissions from 

a limited number of Kansas sources are 

projected to be lower than assumed by 

EPA in the preliminary Transport Rule 

modeling is not sufficient to 

demonstrate that this requirement is 

met. 

Furthermore, statements about 

emission reductions from certain 

sources in a state do not inform the 

entire decision about the air quality 

impacts of sources in the State to a 

neighboring state. An analysis showing 

that source emissions are so low as to 

be insignificant might be some 

indication that a source could not 

reasonably be expected to contribute to 

downwind air quality problems. But 

that is not the argument made by the 

commenter or by Kansas in its SIP 

submission. Kansas’ SIP submission 

merely stated that four sources will 

reduce emissions of NOX (32 percent 

total reduction) and SOX (58 percent 

total reduction), below 2005 National 

Emissions Inventory levels, ‘‘in the 

coming years.’’ However, there is no 

indication of the air quality impact of 

these anticipated reductions. Therefore, 

and for reasons also detailed in response 

to comment 1, the Kansas submission 

does not provide a demonstration that 

the SIP prohibits Kansas sources from 

significantly contributing to downwind 

nonattainment, or from interfering with 

maintenance of, the 2006 PM2.5 NAAQS. 

5. Comment: The commenters argue 

that EPA failed to identify a statutory 

basis for reliance on preliminary 

modeling from an ongoing rulemaking 

(Transport Rule) to support disapproval. 

The commenters state that this reflects 

a failure to follow the path set out in the 

CAA section 110(c)(1). Commenters 

assert that the CAA authorizes the 

Administrator to impose a FIP only 

when a current SIP has been found 

lacking after promulgation of new rules 

and the State had not acted to cure the 

resulting deficiency. They stated that 

EPA ‘‘would have had to promulgate a 

proposed regulation first and give the 

State a chance to submit a substitute 

regulation.’’ The commenters cite 

Bethlehem Steel Corporation v. 

Gorsuch, 742 F.2d 1028 (7th Cir. 1984) 

as their authority for these arguments. 

EPA Response: EPA has described in 

detail above, particularly in response to 

comments 1 and 2, the basis for its 

reliance on the proposed Transport Rule 

modeling in this disapproval action. 

The statutory basis for EPA’s 

disapproval action is (1) CAA section 

110(a)(2)(D)(i)(I), which requires SIPs to 

address certain contributions to 

downwind nonattainment and 

maintenance, as discussed in response 

to previous comments, and (2) section 

110(k)(1) and (2) which require 

disapproval of portions of plans which 

do not meet the requirements of the Act, 

within 1 year of a determination that a 

SIP submittal is complete. The 

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

are triggered upon promulgation or 

revision of a NAAQS (see section 

110(a)(1) of the CAA). The requirement 

that the SIP must address this provision 

is imposed by the statute, not by 

promulgation by EPA of any separate 

rule (other than the rule promulgating or 

revising a NAAQS). Once EPA 

promulgated the 2006 revisions to the 

PM2.5 standards, all of the applicable 

requirements of section 110(a)(2) were 

triggered, including section 


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Federal Register / Vol. 76, No. 139 / Wednesday, July 20, 2011 / Rules and Regulations 43147 

5We reiterate, however, as stated in response to 

Comment 2, that the modeling for the final 

Transport Rule has now been completed. 

110(a)(2)(D)(i)(I). The Kansas submittal 

was in response to this specific statutory 

requirement. Because EPA is 

disapproving the SIP submittal (only as 

it relates to section 110(a)(2)(D)(i)(I)), 

EPA’s obligation to promulgate a FIP is 

also triggered, upon disapproval of the 

SIP submittal, in whole or in part, as 

required by section 110(c)(1). CAA 

section 110(c)(1) authorizes EPA to 

promulgate a FIP ‘‘at any time within 2 

years after’’ disapproving a SIP 

submission. 

Commenters reliance on Bethlehem 

Steel is also misplaced. That case 

involved an EPA action approving a 

portion of a state’s emissions regulation, 

but not approving another portion of the 

same regulation, thus rendering the 

regulation less stringent than the state 

intended. In rejecting EPA’s approach, 

the Court stated: ‘‘No more can the EPA, 

in the guise of partial approval, remove 

words of limitation; it must follow the 

procedures that the Act prescribes for 

making state regulations stricter.’’ 

(Bethlehem Steel, 742 F. 2d at 1036.) 

The procedures described by the Court 

for that purpose (i.e., making a state 

regulation more stringent) are not 

applicable to the disapproval of the 

section 110(a)(2)(D)(i)(I) portion of the 

Kansas SIP submittal. EPA’s action has 

no effect on any Kansas emissions 

control regulation, and no effect on the 

stringency of any state requirement. 

EPA’s action merely follows the 

procedures of the CAA described above. 

6. Comment: The commenters argue 

that the rationale for the proposed 

disapproval was inconsistent with the 

rationale for the proposed SIP call for 

Kansas (relating to interstate transport 

elements for the 1997 ozone NAAQS), 

in which EPA stated that it would not 

finalize the SIP Call if the final 

Transport Rule modeling does not show 

significant contribution to downwind 

nonattainment or interference with 

maintenance of the ozone standard. The 

commenter also asserts that this action 

‘‘reversed the prior findings’’ that 

Kansas does not significantly contribute 

to nonattainment or interfere with 

maintenance in downwind areas. 

EPA Response: The rationale for the 

proposed SIP Call is explained in detail 

in the proposed SIP call rule for Kansas 

(76 FR 763, January 6, 2011). That 

action involves a different ambient 

standard (1997 ozone as compared to 

2006 PM2.5), and different factual and 

legal considerations from those relating 

to this disapproval action. As explained 

in the proposed SIP Call, EPA had 

previously determined that Kansas 

sources did not significantly contribute 

to downwind nonattainment or 

interference with maintenance of the 

1997 ozone standards (72 FR 10608). 

Because subsequent information (the 

proposed Transport Rule modeling) 

showed that the 2007 determination 

might be in error, EPA proposed the SIP 

Call, for the reasons stated in the 

proposal. However, a final 

determination of that issue can only be 

made after EPA finally determines, 

under the Transport Rule, whether 

Kansas sources do have downwind 

contribution to attainment or 

maintenance of the 1997 ozone 

standard. 

In contrast, this disapproval of the 

section 110(a)(2)(D)(i)(I) portions of the 

Kansas 2006 PM2.5 SIP, contrary to 

assertions of the commenters, does not 

implicate any prior EPA determinations 

with respect to the specific NAAQS 

(2006 PM2.5). Unlike the Kansas SIP for 

the 1997 ozone standard, EPA had not 

previously determined that the SIP is 

adequate with respect to the 2006 PM2.5

standard, to meet the requirements of 

section 110(a)(2)(D)(i)(I). As described 

in detail in responses to Comments 1 

and 2, this disapproval action is based 

on the lack of a demonstration by 

Kansas that the SIP is adequate to meet 

the requirements of section 

110(a)(2)(D)(i)(I). Unlike the Kansas SIP 

Call for 1997 ozone standard (76 FR 

763), this determination is not 

dependent on the outcome of the final 

Transport Rule.5 The rationales for the 

proposed SIP Call and this action are 

not inconsistent, but merely address 

different matters, as discussed above. 

7. Comment: The commenters argue 

that the proposed disapproval relating 

to the 2006 PM2.5 NAAQS is 

inconsistent with the approval of 

Kansas’ demonstration of lack of 

contribution and noninterference with 

respect to the ‘‘1997 NAAQS.’’ 

Commenters assert that the ‘‘same type 

of technical demonstration’’ was made 

for those NAAQS as for the 2006 PM2.5

NAAQS, and that EPA is being 

inconsistent in its treatment of the two 

submissions. 

EPA Response: With respect to the 

reference to the technical demonstration 

for the 1997 NAAQS, it is not clear 

whether the commenter is referencing 

the demonstration for the ozone or PM2.5

standards, or both. With respect to 

ozone, Kansas made a detailed technical 

demonstration with respect to its 

downwind contribution for ozone, 

based on the information available at 

the time. The demonstration included 

emissions analyses, analyses of the 

proximity of Kansas sources to 

downwind ozone air quality problems, 

and back-trajectory analyses. As 

explained in the proposed SIP Call for 

the 1997 ozone NAAQS referenced 

above, EPA has preliminarily 

determined that more recent analyses 

made in conjunction with the proposed 

Transport Rule, contradict the 

conclusions of noninterference with 

respect to the 1997 ozone NAAQS. This 

issue is outside the scope of this 

rulemaking, but notably, the 

demonstration provided by Kansas with 

respect to the 1997 ozone NAAQS 

contained far more information than the 

conclusory statements in the 2006 PM2.5

SIP submitted (discussed above 

particularly in the response to Comment 

(1) Which is the subject of this 

rulemaking). 

With respect to the demonstration 

made by Kansas for the 1997 PM2.5

standards, we note that Kansas relied on 

the modeling performed for the Clean 

Air Interstate Rule, which, based on the 

information available at that time, 

showed that Kansas did not 

significantly contribute to downwind 

nonattainment or interfere with 

maintenance of the 1997 PM2.5 standard. 

This modeling did not consider and is 

not relevant to contributions with 

respect to the 2006 NAAQS, but for the 

1997 PM2.5 NAAQS, it was adequate at 

the time to support a demonstration of 

noncontribution by Kansas. 

For the reasons stated above, and as 

described further in response to 

Comment 1, we disagree with the 

commenters’ generalized assertion that 

the State’s documentation regarding 

contribution for the 1997 NAAQS was 

‘‘the same type of technical 

demonstration’’ utilized for the 2006 

PM2.5 NAAQS. As stated above, there 

was no technical demonstration with 

respect to the latter NAAQS. 

III. Final Action 

EPA is taking final action to 

disapprove a portion of the submission 

from the State of Kansas intended to 

demonstrate that Kansas has adequately 

addressed the elements of CAA section 

110(a)(2)(D)(i)(I) that require the Kansas’ 

SIP to include adequate provisions to 

prohibit air pollutant emissions from 

sources within the State from 

significantly contributing to 

nonattainment in or interference with 

maintenance of the 2006 24-hour PM2.5

NAAQS in any other state. EPA has 

determined that the Kansas submission 

does not contain adequate provisions to 

prohibit air pollutant emissions from 

within the State that significantly 

contribute to nonattainment in or 

interference with maintenance of the 

2006 24-hour PM2.5 NAAQS in other 


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43148 Federal Register / Vol. 76, No. 139 / Wednesday, July 20, 2011 / Rules and Regulations 

downwind states. As noted in the 

Background above, the final modeling 

for EPA’s Transport Rule indicates that 

Kansas in fact significantly contributes 

to downwind nonattainment in another 

state and interferes with maintenance of 

the 2006 24-hour PM2.5 NAAQS in 

another state. 

Any remaining elements of the 

submittal, including language to address 

other CAA section 110(a)(2) elements, 

including section 110(a)(2)(D)(i)(II) 

regarding interference with measures 

required in the applicable SIP for 

another state designed to prevent 

significant deterioration of air quality 

and protect visibility, are not addressed 

in this action. EPA is disapproving only 

the provisions which relate to the 

section 110(a)(2)(D)(i)(I) portion of the 

submittal and intends to act on the 

remainder of the submittal in a 

subsequent action. 

Also, under section 179(a) of the 

CAA, final disapproval of a submittal 

that addresses a requirement of a Part D 

Plan (42 U.S.C.A. 7501–7515), or is 

required in response to a finding of 

substantial inadequacy as described in 

section 7410(k)(5) (SIP Call), starts a 

sanctions clock. The provisions in the 

submittal that we are disapproving were 

not submitted to meet either of those 

requirements. Therefore, no sanctions 

are triggered. 

The full or partial disapproval of a SIP 

revision triggers the requirement under 

section 110(c) that EPA promulgate a 

FIP no later than 2 years from the date 

of the disapproval unless the state 

corrects the deficiency, and the 

Administrator approves the plan or plan 

revision before the Administrator 

promulgates such FIP. 

EPA’s final Transport Rule and 

related FIP, if finalized in the manner 

proposed, may address these interstate 

transport requirements of CAA section 

110(a)(2)(D)(i)(I) for the State of Kansas 

for the 2006 24-hour PM2.5 NAAQS. 

IV. Administrative Requirements 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable Federal regulations. 

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

Thus, in reviewing SIP submissions, 

EPA’s role is to act on state law as 

meeting Federal requirements and does 

not impose additional requirements 

beyond those imposed by state law. 

Executive Order 12866, Regulatory 

Planning and Review 

This action is not a ‘‘significant 

regulatory action’’ under the terms of 

Executive Order 12866 (58 FR 51735, 

October 4, 1993) and is therefore not 

subject to review under the Executive 

Orders 12866 and 13563 (76 FR 3821, 

January 21, 2011). 

Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

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

SIP disapproval under section 110 of the 

CAA will not in-and-of itself create any 

new information collection burdens but 

simply disapproves certain state 

requirements for inclusion into the SIP. 

Burden is defined at 5 CFR 1320.3(b). 

Regulatory Flexibility Act 

The Regulatory Flexibility Act 

generally requires an agency to conduct 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements unless the 

agency certifies that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

Small entities include small businesses, 

small not-for-profit enterprises, and 

small governmental jurisdictions. For 

purposes of assessing the impacts of 

today’s rule on small entities, small 

entity is defined as: (1) A small business 

as defined by the Small Business 

Administration’s regulations at 13 CFR 

121.201; (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district or 

special district with a population of less 

than 50,000; and (3) a small 

organization that is any not-for-profit 

enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of today’s rule on small entities, 

I certify that this action will not have a 

significant impact on a substantial 

number of small entities. This rule does 

not impose any requirements or create 

impacts on small entities. This SIP 

disapproval under section 110 and of 

the CAA will not in-and-of itself create 

any new requirements but simply 

disapproves certain State requirements 

for inclusion into the SIP. Accordingly, 

it affords no opportunity for EPA to 

fashion for small entities less 

burdensome compliance or reporting 

requirements or timetables or 

exemptions from all or part of the rule. 

The fact that the CAA prescribes that 

various consequences (e.g., higher offset 

requirements) may or will flow from 

this disapproval does not mean that 

EPA either can or must conduct a 

regulatory flexibility analysis for this 

action. Therefore, this action will not 

have a significant economic impact on 

a substantial number of small entities. 

Unfunded Mandates Reform Act 

This action contains no Federal 

mandates under the provisions of Title 

II of the Unfunded Mandates Reform 

Act of 1995, 2 U.S.C. 1531–1538 for 

state, local, or tribal governments or the 

private sector. EPA has determined that 

the disapproval action does not include 

a Federal mandate that may result in 

estimated costs of $100 million or more 

to either state, local, or tribal 

governments in the aggregate, or to the 

private sector. This action disapproves 

pre-existing requirements under State or 

local law, and imposes no new 

requirements. Accordingly, no 

additional costs to state, local, or tribal 

governments, or to the private sector, 

result from this action. 

Executive Order 13132, Federalism 

Executive Order 13132, entitled 

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

1999), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by state 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the states, on the relationship 

between the national government and 

the states, or on the distribution of 

power and responsibilities among the 

various levels of government.’’ 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. This action 

merely disapproves certain state 

requirements for inclusion into the SIP 

and does not alter the relationship or 

the distribution of power and 

responsibilities established in the CAA. 

Today’s final disapproval does not have 

federalism implications. Thus, 

Executive Order 13132 does not apply 

to this action. 

Executive Order 13175, Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000), because the SIP EPA is 

disapproving would not apply in Indian 

country located in the state, and EPA 

notes that it will not impose substantial 

direct costs on tribal governments or 

preempt tribal law. Thus, Executive 


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Federal Register / Vol. 76, No. 139 / Wednesday, July 20, 2011 / Rules and Regulations 43149 

Order 13175 does not apply to this 

action. 

Executive Order 13045, Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets Executive Order 13045 

(62 FR 19885, April 23, 1997) as 

applying only to those regulatory 

actions that concern health or safety 

risks, such that the analysis required 

under section 5–501 of the Executive 

Order has the potential to influence the 

regulation. This action is not subject to 

Executive Order 13045 because it 

because it is not an economically 

significant regulatory action based on 

health or safety risks subject to 

Executive Order 13045 (62 FR 19885, 

April 23, 1997). This SIP disapproval 

under section 110 will not in-and-of 

itself create any new regulations but 

simply disapproves certain state 

requirements for inclusion into the SIP. 

Executive Order 13211, Actions That 

Significantly Affect Energy Supply, 

Distribution or Use 

This action is not subject to Executive 

Order 13211 (66 FR 28355, May 22, 

2001) because it is not a significant 

regulatory action under Executive Order 

12866. 

National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, Section 12(d) (15 U.S.C. 272 

note) directs EPA to use voluntary 

consensus standards in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures, and 

business practices) that are developed or 

adopted by voluntary consensus 

standards bodies. NTTAA directs EPA 

to provide Congress, through Office of 

Management and Budget, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. EPA believes that 

this action is not subject to requirements 

of section 12(d) of NTTAA because 

application of those requirements would 

be inconsistent with the CAA. 

Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

Executive Order 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 

populations and low-income 

populations in the United States. 

EPA lacks the discretionary authority 

to address environmental justice in this 

action. In reviewing SIP submissions, 

EPA’s role is to approve or disapprove 

state choices, based on the criteria of the 

CAA. Accordingly, this action merely 

disapproves certain state requirements 

for inclusion into the SIP under section 

110 of the CAA and will not in-and-of 

itself create any new requirements. 

Accordingly, it does not provide EPA 

with the discretionary authority to 

address, as appropriate, 

disproportionate human health or 

environmental effects, using practicable 

and legally permissible methods, under 

Executive Order 12898. 

Congressional Review 

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 action 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. 

A major rule cannot take effect until 

60 days after it is published in the 

Federal Register. This action is not a 

‘‘major rule’’ as defined by 5 U.S.C. 

804(2). 

Statutory Authority 

The statutory authority for this action 

is provided by section 110 of the CAA, 

as amended (42 U.S.C. 7410). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Particulate matter. 

Dated: June 28, 2011. 

Karl Brooks, 

Regional Administrator, Region 7. 

[FR Doc. 2011–17741 Filed 7–19–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2011–0131, FRL–9317–9] 

Approval and Promulgation of Air 

Quality Implementation Plans; State of 

California; Regional Haze State 

Implementation Plan and Interstate 

Transport Plan; Interference With 

Visibility Requirement 

Correction 

In rule document 2011–14479, 

appearing on pages 34608–34611, in the 

issue of June 14, 2011, make the 

following correction: 

On page 34608, in the second column, 

in the Environmental Protection Agency 

document, the subject is corrected to 

appear as above. 

[FR Doc. C1–2011–14479 Filed 7–19–11; 8:45 am] 

BILLING CODE 1505–01–D 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2011–0031; FRL–9440–7] 

Approval and Promulgation of Air 

Quality Implementation Plans; New 

Mexico; Prevention of Significant 

Deterioration; Greenhouse Gas 

Tailoring Rule Revisions 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving a State 

Implementation Plan (SIP) revision 

submitted by the New Mexico 

Environment Department (NMED) to 

EPA on December 1, 2010. This SIP 

revision modifies New Mexico’s 

Prevention of Significant Deterioration 

(PSD) program to establish appropriate 

emission thresholds for determining 

which new stationary sources and 

modification projects become subject to 

New Mexico’s PSD permitting 

requirements for their greenhouse gas 

(GHG) emissions. EPA is fully 

approving New Mexico’s December 1, 

2010, PSD SIP revision because the 

Agency has determined that this PSD 

SIP revision is in accordance with 

section 110 and part C of the Federal 

Clean Air Act and EPA regulations 

regarding PSD permitting for GHGs. 

DATES: This final rule will be effective 

August 19, 2011. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R06–OAR–2011–0031. All 


jlentini on DSK4TPTVN1PROD with RULES