Approval and Promulgation of State Plans for Designated Facilities and Pollutants; Kansas; Clean Air Mercury Rule, 72978-72981 [E7-24967]
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Federal Register / Vol. 72, No. 246 / Wednesday, December 26, 2007 / Proposed Rules
regulatory action and has determined
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SUPPLEMENTARY INFORMATION section of
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ADDRESSES section of this preamble.
Regulatory Flexibility Act Certification
The Secretary certifies that these
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Paperwork Reduction Act of 1995
These proposed regulations do not
contain any information collection
requirements.
Intergovernmental Review
These proposed regulations are not
subject to Executive Order 12372 and
the regulations in 34 CFR part 79.
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adding, in their place, the words ‘‘, why
the information sought is unavailable by
any other means, and the reason why
the release of the information would not
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C. In paragraph (b), removing the
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D. In paragraph (b), removing the
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adding, in their place, the words ‘‘room
6E300, Lyndon Baines Johnson
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[FR Doc. E7–24966 Filed 12–21–07; 8:45 am]
Dated: December 18, 2007.
Margaret Spellings,
Secretary of Education.
BILLING CODE 4000–01–P
For the reasons discussed in the
preamble, the Secretary of Education
proposes to amend part 8 of title 34 of
the Code of Federal Regulations as
follows:
ENVIRONMENTAL PROTECTION
AGENCY
PART 8—DEMANDS FOR TESTIMONY
OR RECORDS IN LEGAL
PROCEEDINGS
Approval and Promulgation of State
Plans for Designated Facilities and
Pollutants; Kansas; Clean Air Mercury
Rule
1. The authority citation for part 8
continues to read as follows:
Authority: 5 U.S.C. 301; 5 U.S.C. 552; 20
U.S.C. 3474, unless otherwise noted.
§ 8.1
[Amended]
2. The introductory text of § 8.1(a) is
amended by removing the words ‘‘if the
Department or any departmental
employee’’ and adding, in their place,
the words ‘‘when the Department or any
employee of the Department’’.
§ 8.2
[Amended]
3. The definition of ‘‘Employee’’ in
§ 8.2 is amended by adding the words
‘‘or former’’ between the words
‘‘current’’ and ‘‘employee’’.
§ 8.3
[Amended]
4. Section 8.3 is amended by:
A. In the introductory text of
paragraph (a), removing the words ‘‘or
former employee,’’.
B. In paragraph (a)(2), removing the
words ‘‘and why the information sought
is unavailable by any other means’’ and
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40 CFR Part 62
[EPA–R07–OAR–2007–1143; FRL–8510–7]
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
SUMMARY: EPA is proposing to approve
the State Plan submitted by Kansas on
June 19, 2007. The plan addresses the
requirements of EPA’s Clean Air
Mercury Rule (CAMR), promulgated on
May 18, 2005, and subsequently revised
on June 9, 2006. EPA is proposing to
determine that the submitted State Plan
fully meets the CAMR requirements for
Kansas.
CAMR requires States to regulate
emissions of mercury (Hg) from large
coal-fired electric generating units
(EGUs). CAMR establishes State budgets
for annual EGU Hg emissions and
requires States to submit State Plans to
ensure that annual EGU Hg emissions
will not exceed the applicable State
budget. States have the flexibility to
choose which control measures to adopt
to achieve the budgets, including
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participating in the EPA-administered
CAMR cap-and-trade program. In the
State Plan that EPA is proposing to
approve, Kansas would meet CAMR
requirements by participating in the
EPA trading program.
DATES: Comments must be received on
or before January 25, 2008.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R07–
OAR–2007–1143, by one of the
following methods:
1. www.regulations.gov: Follow the
on-line instructions for submitting
comments.
2. E-mail: jay.michael@epa.gov.
3. Mail: Michael Jay, Environmental
Protection Agency, Air Planning and
Development Branch, 901 North 5th
Street, Kansas City, Kansas 66101.
4. Hand Delivery or Courier: Deliver
your comments to Michael Jay,
Environmental Protection Agency, 901
North 5th Street, Kansas City, Kansas
66101. Such deliveries are only
accepted during the Regional Office’s
normal hours of operation. The Regional
Office’s official hours of business are
Monday through Friday, 8 a.m. to 4:30
p.m., excluding Federal holidays.
Instructions: Direct your comments to
Docket ID No. EPA–R07–OAR–2007–
1143. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit through
www.regulations.gov or e-mail,
information that you consider to be CBI
or otherwise protected. The
www.regulations.gov Web site is an
‘‘anonymous access’’ system, which
means EPA will not know your identity
or contact information unless you
provide it in the body of your comment.
If you send an e-mail comment directly
to EPA without going through
www.regulations.gov, your e-mail
address will be automatically captured
and included as part of the comment
that is placed in the public docket and
made available on the Internet. If you
submit an electronic comment, EPA
recommends that you include your
name and other contact information in
the body of your comment and with any
disk or CD–ROM you submit. If EPA
cannot read your comment due to
technical difficulties and cannot contact
you for clarification, EPA may not be
able to consider your comment.
Electronic files should avoid the use of
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special characters and any form of
encryption and should be free of any
defects or viruses.
Docket: All documents in the
electronic docket are listed in the
www.regulations.gov index. Although
listed in the index, some information is
not publicly available, i.e., CBI or other
information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
is not placed on the Internet and will be
publicly available only in hard copy
form. Publicly available docket
materials are available either
electronically in www.regulations.gov or
in hard copy at the Environmental
Protection Agency, Air Planning and
Development Branch, 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 Regional
Office’s official hours of business are
Monday through Friday, 8 a.m. to 4:30
p.m., excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Michael Jay at (913) 551–7460 or by
e-mail at jay.michael@epa.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. What Action Is EPA Proposing To Take?
II. What Is the Regulatory History of CAMR?
III. What Are the General Requirements of
CAMR State Plans?
IV. How Can States Comply With CAMR?
V. Analysis of Kansas’s CAMR State Plan
Submittal
A. State Budgets
B. CAMR State Plan
VI. Statutory and Executive Order Reviews
I. What Action Is EPA Proposing To
Take?
EPA is proposing to approve Kansas’s
State Plan, submitted on June 19, 2007.
In its State Plan, Kansas would meet
CAMR by requiring certain coal-fired
EGUs to participate in the EPAadministered cap-and-trade program
addressing Hg emissions. EPA is
proposing to determine that the State
Plan meets the applicable requirements
of CAMR. Kansas has included as part
of its submittal Kansas rule K.A.R. 28–
19–720, relating to new source
performance standards. EPA will take
action on those provisions in a separate
rulemaking.
II. What Is the Regulatory History of
CAMR?
CAMR was published by EPA on May
18, 2005 (70 FR 28606, ‘‘Standards of
Performance for New and Existing
Stationary Sources: Electric Utility
Steam Generating Units; Final Rule’’). In
this rule, acting pursuant to its authority
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under section 111(d) of the Clean Air
Act (CAA), 42 U.S.C. 7411(d), EPA
required that all States and the District
of Columbia (all of which are referred to
herein as States) meet Statewide annual
budgets limiting Hg emissions from
coal-fired EGUs (as defined in 40 CFR
60.24(h)(8)) under CAA section 111(d).
EPA required all States to submit State
Plans with control measures that ensure
that total, annual Hg emissions from the
coal-fired EGUs located in the
respective States do not exceed the
applicable statewide annual EGU
mercury budget. Under CAMR, States
may implement and enforce these
reduction requirements by participating
in the EPA-administered cap-and-trade
program or by adopting any other
effective and enforceable control
measures.
CAA section 111(d) requires States,
and along with CAA section 301(d) and
the Tribal Air Rule (40 CFR part 49),
allows Tribes granted treatment as
States (TAS), to submit State Plans to
EPA that implement and enforce the
standards of performance. CAMR
explains what must be included in State
Plans to address the requirements of
CAA section 111(d). The State Plans
were due to EPA by November 17, 2006.
Under 40 CFR 60.27(b), the EPA
proposes, and subsequently approves or
disapproves, the State Plans.
III. What Are the General Requirements
of CAMR State Plans?
CAMR establishes Statewide annual
EGU Hg emission budgets and is to be
implemented in two phases. The first
phase of reductions starts in 2010 and
continues through 2017. The second
phase of reductions starts in 2018 and
continues thereafter. CAMR requires
States to implement the budgets by
either: (1) requiring coal-fired EGUs to
participate in the EPA-administered
cap-and-trade program; or (2) adopting
other coal-fired EGU control measures
of the respective State’s choosing and
demonstrating that such control
measures will result in compliance with
the applicable State annual EGU Hg
budget.
Each State Plan must require coalfired EGUs to comply with the
monitoring, recordkeeping, and
reporting provisions of 40 CFR part 75
concerning Hg mass emissions. Each
State Plan must also show that the State
has the legal authority to adopt emission
standards and compliance schedules
necessary for attainment and
maintenance of the State’s annual EGU
Hg budget and to require the owners
and operators of coal-fired EGUs in the
State to meet the monitoring,
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recordkeeping, and reporting
requirements of 40 CFR part 75.
each year under the EPA-administered
CAMR cap-and-trade program.
IV. How Can States Comply With
CAMR?
B. CAMR State Plan
The Kansas State Plan requires coalfired EGUs to participate in the EPAadministered CAMR cap-and-trade
program. The State Plan incorporates by
reference the EPA model Hg trading rule
but has adopted an alternative
allowance allocation methodology.
Under the Hg allowance allocation
methodology in the model rule, Hg
allowances are allocated to units that
have operated for 5 years, based on heat
input data from a 3-year period that are
adjusted for coal rank by using coal
factors of 3.0 for the lignite combusted
by the unit, 1.25 for the subbituminous
combusted by the unit, and 1 for other
coal ranks combusted by the unit. The
model rule also provides a new unit setaside from which units without 5 years
of operation are allocated allowances
based on the units’ prior year emissions.
States may establish in their State
Plan submissions a different Hg
allowance allocation methodology that
will be used to allocate allowances to
sources in the States if certain
requirements are met concerning the
timing of submission of units’
allocations to the Administrator for
recordation and the total amount of
allowances allocated for each control
period. In adopting alternative Hg
allowance allocation methodologies,
States have flexibility with regard to:
1. The cost to recipients of the
allowances, which may be distributed
for free or auctioned;
2. The frequency of allocations;
3. The basis for allocating allowances,
which may be distributed, for example,
based on historical heat input or electric
and thermal output; and
4. The use of allowance set-asides
and, if used, their size.
In Kansas’s alternative allowance
methodology, as authorized by the
CAMR, Kansas has deviated from the
portion of the model rule described
above relating to the basis for allocating
allowances to new units and existing
units. For existing units, 97 percent of
the total annual allowances are
distributed based on the individual
unit’s pro-rata share of total heat input
for all existing units, adjusted by coal
type, for the years 2000 through 2004.
The baseline for each unit was
established by averaging the three
highest annual adjusted heat input rates
for the five-year period. For new units,
allowances will be distributed from a
set-aside pool of allowances equal to 3
percent of the State’s budget for each
year of the program. The new unit
methodology distributes allowances
Each State Plan must impose control
requirements that the State
demonstrates will limit Statewide
annual Hg emissions from new and
existing coal-fired EGUs to the amount
of the State’s applicable annual EGU Hg
budget. States have the flexibility to
choose the type of EGU control
measures they will use to meet the
requirements of CAMR. EPA anticipates
that many States will choose to meet the
CAMR requirements by selecting an
option that requires EGUs to participate
in the EPA-administered CAMR capand-trade program. EPA also anticipates
that many States may choose to control
Statewide annual Hg emissions for new
and existing coal-fired EGUs through an
alternative mechanism other than the
EPA-administered CAMR cap-and-trade
program. Each State that chooses an
alternative mechanism must include
with its plan a demonstration that the
State Plan will ensure that the State will
meet its assigned State annual EGU Hg
emission budget.
A State submitting a State Plan that
requires coal-fired EGUs to participate
in the EPA-administered CAMR capand-trade program may either adopt
regulations that are substantively
identical to the EPA model Hg trading
rule (40 CFR part 60, subpart HHHH) or
incorporate by reference the model rule.
CAMR provides that States may only
make limited changes from the model
rule if the States want to participate in
the EPA-administered trading program.
A State Plan may deviate from the
model rule only by altering the
allowance allocation provisions to
provide for State-specific allocation of
Hg allowances using a methodology
chosen by the State. A State’s alternative
allowance allocation provisions must
meet certain allocation timing
requirements and must ensure that total
allocations for each calendar year will
not exceed the State’s annual EGU Hg
budget for that year.
V. Analysis of Kansas’s CAMR State
Plan Submittal
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A. State Budgets
In this action, EPA is proposing to
approve Kansas’s State Plan that adopts
the annual EGU Hg budgets established
for the State in CAMR, i.e., 0.723 tons
for EGU Hg emissions in 2010–2017 and
0.285 tons for EGU Hg emissions in
2018 and thereafter. Kansas’s State Plan
sets these budgets as the total amount of
allowances available for allocation for
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based on an emission rate (up to 5
ounces of Hg/MW for 2010–2017 and up
to 2 ounces of Hg/MW in 2018 and
thereafter) multiplied by the nameplate
capacity. However, no single unit can
receive more than one-third of the setaside in a control period nor can the
total number of new units receive more
than the 3 percent set-aside pool of
allowances. Mercury allowances for
new and existing units are permanent.
Because allocations are considered
permanent, if the new unit set-aside is
fully subscribed as new units make
requests for allowances, there may be
future new units that are not allocated
allowances from the new unit set-aside.
There are also provisions for
distribution of allowances in the new
unit set-aside for the case of
undersubscription. The Kansas
allowance distribution methodologies
are acceptable under CAMR.
Kansas’s State Plan requires coal-fired
EGUs to comply with the monitoring,
recordkeeping, and reporting provisions
of 40 CFR part 75 concerning Hg mass
emissions. Kansas’s State Plan also
demonstrates that the State has the legal
authority to adopt emission standards
and compliance schedules necessary for
attainment and maintenance of the
State’s annual EGU Hg budget and to
require the owners and operators of
coal-fired EGUs in the State to meet the
monitoring, recordkeeping, and
reporting requirements of 40 CFR part
75. The State cites provisions in Kansas
State Law, K.S.A. 65–3005, as
containing the legal authority for the
Kansas Department of Health and
Environment to adopt the State’s rule
that allows for Kansas’s participation in
the nationwide cap-and-trade program
for mercury.
EPA’s review of Kansas’s State Plan
has found that it meets the requirements
of CAMR. As a result, EPA is proposing
to approve Kansas’s State Plan.
VI. Statutory and Executive Order
Reviews
Under Executive Order 12866 (58 FR
51735, October 4, 1993), this action is
not a ‘‘significant regulatory action’’ and
therefore is not subject to review by the
Office of Management and Budget. For
this reason, this action is also not
subject to Executive Order 13211,
‘‘Actions Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use’’ (66 FR 28355, May
22, 2001). This action merely proposes
to approve State law as meeting Federal
requirements and would impose no
additional requirements beyond those
imposed by State law. Accordingly, the
Administrator certifies that this
proposed rule would not have a
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significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.). Because this action
proposes to approve pre-existing
requirements under State law and
would not impose any additional
enforceable duty beyond that required
by State law, it does not contain any
unfunded mandate or significantly or
uniquely affect small governments, as
described in the Unfunded Mandates
Reform Act of 1995 (Pub. L. 104–4).
This proposal also does not have
Tribal implications because it would not
have a substantial direct effect on one or
more Indian tribes, on the relationship
between the Federal Government and
Indian tribes, or on the distribution of
power and responsibilities between the
Federal Government and Indian tribes,
as specified by Executive Order 13175
(65 FR 67249, November 9, 2000).
This proposed action also does not
have Federalism implications because it
would 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 (64
FR 43255, August 10, 1999). This action
merely proposes to approve a State rule
implementing a Federal standard. It
does not alter the relationship or the
distribution of power and
responsibilities established in the CAA.
This proposed rule also is not subject to
Executive Order 13045 ‘‘Protection of
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Children from Environmental Health
Risks and Safety Risks’’ (62 FR 19885,
April 23, 1997), because it proposes to
approve a State rule implementing a
Federal standard.
Executive Order 12898, ‘‘Federal
Actions to Address Environmental
Justice in Minority Populations and
Low-Income Populations,’’ requires
Federal agencies to consider the impact
of programs, policies, and activities on
minority populations and low-income
populations. EPA guidance 1 states that
EPA is to assess whether minority or
low-income populations face risk or a
rate of exposure to hazards that is
significant and that ‘‘appreciably
exceed[s] or is likely to appreciably
exceed the risk or rate to the general
population or to the appropriate
comparison group.’’ (EPA, 1998)
Because this rule merely proposes to
approve a state rule implementing the
Federal standard established by CAMR,
EPA lacks the discretionary authority to
modify today’s regulatory decision on
the basis of environmental justice
considerations. However, EPA has
already considered the impact of CAMR,
including this Federal standard, on
minority and low-income populations.
In the context of EPA’s CAMR
published in the Federal Register on
May 18, 2005, in accordance with
Executive Order 12898, the Agency has
1 U.S.
Environmental Protection Agency, 1998.
Guidance for Incorporating Environmental Justice
Concerns in EPA’s NEPA Compliance Analyses.
Office of Federal Activities, Washington, DC, April,
1998.
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considered whether CAMR may have
disproportionate negative impacts on
minority or low-income populations
and determined it would not.
In reviewing State Plan submissions,
EPA’s role is to approve State choices,
provided that they meet the criteria of
the CAA. In this context, in the absence
of a prior existing requirement for the
State to use voluntary consensus
standards (VCS), EPA has no authority
to disapprove a State Plan for failure to
use VCS. It would thus be inconsistent
with applicable law for EPA, when it
reviews a State Plan submission, to use
VCS in place of a State Plan submission
that otherwise satisfies the provisions of
the CAA. Thus, the requirements of
section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not
apply. This proposed rule would not
impose an information collection
burden under the provisions of the
Paperwork Reduction Act of 1995 (44
U.S.C. 3501, et seq.).
List of Subjects in 40 CFR Part 62
Environmental protection, Air
pollution control, Electric utilities,
Intergovernmental relations, Mercury,
Reporting and recordkeeping
requirements.
Dated: December 14, 2007.
John B. Askew,
Regional Administrator, Region 7.
[FR Doc. E7–24967 Filed 12–21–07; 8:45 am]
BILLING CODE 6560–50–P
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]]>Agencies
[Federal Register Volume 72, Number 246 (Wednesday, December 26, 2007)]
[Proposed Rules]
[Pages 72978-72981]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-24967]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 62
[EPA-R07-OAR-2007-1143; FRL-8510-7]
Approval and Promulgation of State Plans for Designated
Facilities and Pollutants; Kansas; Clean Air Mercury Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to approve the State Plan submitted by Kansas
on June 19, 2007. The plan addresses the requirements of EPA's Clean
Air Mercury Rule (CAMR), promulgated on May 18, 2005, and subsequently
revised on June 9, 2006. EPA is proposing to determine that the
submitted State Plan fully meets the CAMR requirements for Kansas.
CAMR requires States to regulate emissions of mercury (Hg) from
large coal-fired electric generating units (EGUs). CAMR establishes
State budgets for annual EGU Hg emissions and requires States to submit
State Plans to ensure that annual EGU Hg emissions will not exceed the
applicable State budget. States have the flexibility to choose which
control measures to adopt to achieve the budgets, including
[[Page 72979]]
participating in the EPA-administered CAMR cap-and-trade program. In
the State Plan that EPA is proposing to approve, Kansas would meet CAMR
requirements by participating in the EPA trading program.
DATES: Comments must be received on or before January 25, 2008.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R07-
OAR-2007-1143, by one of the following methods:
1. www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. E-mail: jay.michael@epa.gov.
3. Mail: Michael Jay, Environmental Protection Agency, Air Planning
and Development Branch, 901 North 5th Street, Kansas City, Kansas
66101.
4. Hand Delivery or Courier: Deliver your comments to Michael Jay,
Environmental Protection Agency, 901 North 5th Street, Kansas City,
Kansas 66101. Such deliveries are only accepted during the Regional
Office's normal hours of operation. The Regional Office's official
hours of business are Monday through Friday, 8 a.m. to 4:30 p.m.,
excluding Federal holidays.
Instructions: Direct your comments to Docket ID No. EPA-R07-OAR-
2007-1143. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit through www.regulations.gov or e-
mail, information that you consider to be CBI or otherwise protected.
The www.regulations.gov Web site is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
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SUPPLEMENTARY INFORMATION:
Table of Contents
I. What Action Is EPA Proposing To Take?
II. What Is the Regulatory History of CAMR?
III. What Are the General Requirements of CAMR State Plans?
IV. How Can States Comply With CAMR?
V. Analysis of Kansas's CAMR State Plan Submittal
A. State Budgets
B. CAMR State Plan
VI. Statutory and Executive Order Reviews
I. What Action Is EPA Proposing To Take?
EPA is proposing to approve Kansas's State Plan, submitted on June
19, 2007. In its State Plan, Kansas would meet CAMR by requiring
certain coal-fired EGUs to participate in the EPA-administered cap-and-
trade program addressing Hg emissions. EPA is proposing to determine
that the State Plan meets the applicable requirements of CAMR. Kansas
has included as part of its submittal Kansas rule K.A.R. 28-19-720,
relating to new source performance standards. EPA will take action on
those provisions in a separate rulemaking.
II. What Is the Regulatory History of CAMR?
CAMR was published by EPA on May 18, 2005 (70 FR 28606, ``Standards
of Performance for New and Existing Stationary Sources: Electric
Utility Steam Generating Units; Final Rule''). In this rule, acting
pursuant to its authority under section 111(d) of the Clean Air Act
(CAA), 42 U.S.C. 7411(d), EPA required that all States and the District
of Columbia (all of which are referred to herein as States) meet
Statewide annual budgets limiting Hg emissions from coal-fired EGUs (as
defined in 40 CFR 60.24(h)(8)) under CAA section 111(d). EPA required
all States to submit State Plans with control measures that ensure that
total, annual Hg emissions from the coal-fired EGUs located in the
respective States do not exceed the applicable statewide annual EGU
mercury budget. Under CAMR, States may implement and enforce these
reduction requirements by participating in the EPA-administered cap-
and-trade program or by adopting any other effective and enforceable
control measures.
CAA section 111(d) requires States, and along with CAA section
301(d) and the Tribal Air Rule (40 CFR part 49), allows Tribes granted
treatment as States (TAS), to submit State Plans to EPA that implement
and enforce the standards of performance. CAMR explains what must be
included in State Plans to address the requirements of CAA section
111(d). The State Plans were due to EPA by November 17, 2006. Under 40
CFR 60.27(b), the EPA proposes, and subsequently approves or
disapproves, the State Plans.
III. What Are the General Requirements of CAMR State Plans?
CAMR establishes Statewide annual EGU Hg emission budgets and is to
be implemented in two phases. The first phase of reductions starts in
2010 and continues through 2017. The second phase of reductions starts
in 2018 and continues thereafter. CAMR requires States to implement the
budgets by either: (1) requiring coal-fired EGUs to participate in the
EPA-administered cap-and-trade program; or (2) adopting other coal-
fired EGU control measures of the respective State's choosing and
demonstrating that such control measures will result in compliance with
the applicable State annual EGU Hg budget.
Each State Plan must require coal-fired EGUs to comply with the
monitoring, recordkeeping, and reporting provisions of 40 CFR part 75
concerning Hg mass emissions. Each State Plan must also show that the
State has the legal authority to adopt emission standards and
compliance schedules necessary for attainment and maintenance of the
State's annual EGU Hg budget and to require the owners and operators of
coal-fired EGUs in the State to meet the monitoring,
[[Page 72980]]
recordkeeping, and reporting requirements of 40 CFR part 75.
IV. How Can States Comply With CAMR?
Each State Plan must impose control requirements that the State
demonstrates will limit Statewide annual Hg emissions from new and
existing coal-fired EGUs to the amount of the State's applicable annual
EGU Hg budget. States have the flexibility to choose the type of EGU
control measures they will use to meet the requirements of CAMR. EPA
anticipates that many States will choose to meet the CAMR requirements
by selecting an option that requires EGUs to participate in the EPA-
administered CAMR cap-and-trade program. EPA also anticipates that many
States may choose to control Statewide annual Hg emissions for new and
existing coal-fired EGUs through an alternative mechanism other than
the EPA-administered CAMR cap-and-trade program. Each State that
chooses an alternative mechanism must include with its plan a
demonstration that the State Plan will ensure that the State will meet
its assigned State annual EGU Hg emission budget.
A State submitting a State Plan that requires coal-fired EGUs to
participate in the EPA-administered CAMR cap-and-trade program may
either adopt regulations that are substantively identical to the EPA
model Hg trading rule (40 CFR part 60, subpart HHHH) or incorporate by
reference the model rule. CAMR provides that States may only make
limited changes from the model rule if the States want to participate
in the EPA-administered trading program. A State Plan may deviate from
the model rule only by altering the allowance allocation provisions to
provide for State-specific allocation of Hg allowances using a
methodology chosen by the State. A State's alternative allowance
allocation provisions must meet certain allocation timing requirements
and must ensure that total allocations for each calendar year will not
exceed the State's annual EGU Hg budget for that year.
V. Analysis of Kansas's CAMR State Plan Submittal
A. State Budgets
In this action, EPA is proposing to approve Kansas's State Plan
that adopts the annual EGU Hg budgets established for the State in
CAMR, i.e., 0.723 tons for EGU Hg emissions in 2010-2017 and 0.285 tons
for EGU Hg emissions in 2018 and thereafter. Kansas's State Plan sets
these budgets as the total amount of allowances available for
allocation for each year under the EPA-administered CAMR cap-and-trade
program.
B. CAMR State Plan
The Kansas State Plan requires coal-fired EGUs to participate in
the EPA-administered CAMR cap-and-trade program. The State Plan
incorporates by reference the EPA model Hg trading rule but has adopted
an alternative allowance allocation methodology. Under the Hg allowance
allocation methodology in the model rule, Hg allowances are allocated
to units that have operated for 5 years, based on heat input data from
a 3-year period that are adjusted for coal rank by using coal factors
of 3.0 for the lignite combusted by the unit, 1.25 for the
subbituminous combusted by the unit, and 1 for other coal ranks
combusted by the unit. The model rule also provides a new unit set-
aside from which units without 5 years of operation are allocated
allowances based on the units' prior year emissions.
States may establish in their State Plan submissions a different Hg
allowance allocation methodology that will be used to allocate
allowances to sources in the States if certain requirements are met
concerning the timing of submission of units' allocations to the
Administrator for recordation and the total amount of allowances
allocated for each control period. In adopting alternative Hg allowance
allocation methodologies, States have flexibility with regard to:
1. The cost to recipients of the allowances, which may be
distributed for free or auctioned;
2. The frequency of allocations;
3. The basis for allocating allowances, which may be distributed,
for example, based on historical heat input or electric and thermal
output; and
4. The use of allowance set-asides and, if used, their size.
In Kansas's alternative allowance methodology, as authorized by the
CAMR, Kansas has deviated from the portion of the model rule described
above relating to the basis for allocating allowances to new units and
existing units. For existing units, 97 percent of the total annual
allowances are distributed based on the individual unit's pro-rata
share of total heat input for all existing units, adjusted by coal
type, for the years 2000 through 2004. The baseline for each unit was
established by averaging the three highest annual adjusted heat input
rates for the five-year period. For new units, allowances will be
distributed from a set-aside pool of allowances equal to 3 percent of
the State's budget for each year of the program. The new unit
methodology distributes allowances based on an emission rate (up to 5
ounces of Hg/MW for 2010-2017 and up to 2 ounces of Hg/MW in 2018 and
thereafter) multiplied by the nameplate capacity. However, no single
unit can receive more than one-third of the set-aside in a control
period nor can the total number of new units receive more than the 3
percent set-aside pool of allowances. Mercury allowances for new and
existing units are permanent. Because allocations are considered
permanent, if the new unit set-aside is fully subscribed as new units
make requests for allowances, there may be future new units that are
not allocated allowances from the new unit set-aside. There are also
provisions for distribution of allowances in the new unit set-aside for
the case of undersubscription. The Kansas allowance distribution
methodologies are acceptable under CAMR.
Kansas's State Plan requires coal-fired EGUs to comply with the
monitoring, recordkeeping, and reporting provisions of 40 CFR part 75
concerning Hg mass emissions. Kansas's State Plan also demonstrates
that the State has the legal authority to adopt emission standards and
compliance schedules necessary for attainment and maintenance of the
State's annual EGU Hg budget and to require the owners and operators of
coal-fired EGUs in the State to meet the monitoring, recordkeeping, and
reporting requirements of 40 CFR part 75. The State cites provisions in
Kansas State Law, K.S.A. 65-3005, as containing the legal authority for
the Kansas Department of Health and Environment to adopt the State's
rule that allows for Kansas's participation in the nationwide cap-and-
trade program for mercury.
EPA's review of Kansas's State Plan has found that it meets the
requirements of CAMR. As a result, EPA is proposing to approve Kansas's
State Plan.
VI. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely proposes to approve State law as meeting Federal requirements
and would impose no additional requirements beyond those imposed by
State law. Accordingly, the Administrator certifies that this proposed
rule would not have a
[[Page 72981]]
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this action proposes to approve pre-existing requirements under State
law and would not impose any additional enforceable duty beyond that
required by State law, it does not contain any unfunded mandate or
significantly or uniquely affect small governments, as described in the
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).
This proposal also does not have Tribal implications because it
would not have a substantial direct effect on one or more Indian
tribes, on the relationship between the Federal Government and Indian
tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian tribes, as specified by Executive
Order 13175 (65 FR 67249, November 9, 2000).
This proposed action also does not have Federalism implications
because it would 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 (64 FR 43255,
August 10, 1999). This action merely proposes to approve a State rule
implementing a Federal standard. It does not alter the relationship or
the distribution of power and responsibilities established in the CAA.
This proposed rule also is not subject to Executive Order 13045
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), because it proposes to approve a
State rule implementing a Federal standard.
Executive Order 12898, ``Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations,'' requires
Federal agencies to consider the impact of programs, policies, and
activities on minority populations and low-income populations. EPA
guidance \1\ states that EPA is to assess whether minority or low-
income populations face risk or a rate of exposure to hazards that is
significant and that ``appreciably exceed[s] or is likely to
appreciably exceed the risk or rate to the general population or to the
appropriate comparison group.'' (EPA, 1998) Because this rule merely
proposes to approve a state rule implementing the Federal standard
established by CAMR, EPA lacks the discretionary authority to modify
today's regulatory decision on the basis of environmental justice
considerations. However, EPA has already considered the impact of CAMR,
including this Federal standard, on minority and low-income
populations. In the context of EPA's CAMR published in the Federal
Register on May 18, 2005, in accordance with Executive Order 12898, the
Agency has considered whether CAMR may have disproportionate negative
impacts on minority or low-income populations and determined it would
not.
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\1\ U.S. Environmental Protection Agency, 1998. Guidance for
Incorporating Environmental Justice Concerns in EPA's NEPA
Compliance Analyses. Office of Federal Activities, Washington, DC,
April, 1998.
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In reviewing State Plan submissions, EPA's role is to approve State
choices, provided that they meet the criteria of the CAA. In this
context, in the absence of a prior existing requirement for the State
to use voluntary consensus standards (VCS), EPA has no authority to
disapprove a State Plan for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a State Plan
submission, to use VCS in place of a State Plan submission that
otherwise satisfies the provisions of the CAA. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply. This proposed rule would
not impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq.).
List of Subjects in 40 CFR Part 62
Environmental protection, Air pollution control, Electric
utilities, Intergovernmental relations, Mercury, Reporting and
recordkeeping requirements.
Dated: December 14, 2007.
John B. Askew,
Regional Administrator, Region 7.
[FR Doc. E7-24967 Filed 12-21-07; 8:45 am]
BILLING CODE 6560-50-P
