Approval and Promulgation of Air Quality Implementation Plans; State of Kansas; Cross-State Air Pollution Rule, 42256-42263 [2016-15040]
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Federal Register / Vol. 81, No. 125 / Wednesday, June 29, 2016 / Rules and Regulations
State, local, or tribal government, in the
aggregate, or by the private sector of
$100,000,000 (adjusted for inflation) or
more in any one year. Though this rule
will not result in such an expenditure,
we do discuss the effects of this rule
elsewhere in this preamble.
F. Environment
We have analyzed this rule under
Department of Homeland Security
Management Directive 023–01 and
Commandant Instruction M16475.lD,
which guide the Coast Guard in
complying with the National
Environmental Policy Act of 1969 (42
U.S.C. 4321–4370f), and have
determined that this action is one of a
category of actions that do not
individually or cumulatively have a
significant effect on the human
environment. This rule involves a safety
zone lasting less than 1 hour that will
prohibit entry within 500 yards of the
Veterans Pier. Normally such actions are
categorically excluded from further
review under paragraph 34(g) of Figure
2–1 of Commandant Instruction
M16475.lD. A preliminary
environmental analysis checklist and
Categorical Exclusion Determination are
available in the docket where indicated
under ADDRESSES. We seek any
comments or information that may lead
to the discovery of a significant
environmental impact from this rule.
G. Protest Activities
The Coast Guard respects the First
Amendment rights of protesters.
Protesters are asked to contact the
person listed in the FOR FURTHER
INFORMATION CONTACT section to
coordinate protest activities so that your
message can be received without
jeopardizing the safety or security of
people, places or vessels.
ACTION:
(a) This rule establishes a safety zone
on all Atlantic Ocean waters within a
500 yard radius of Veterans Pier, from
which fireworks will be launched.
(b) Definition. As used in this section,
‘‘designated representative’’ means
Coast Guard Patrol Commanders,
including Coast Guard coxswains, petty
officers, and other officers operating
Coast Guard vessels, and Federal, state,
and local officers designated by or
assisting the Captain of the Port
Charleston in the enforcement of the
regulated areas.
(c) Regulations. (1) All persons and
vessels are prohibited from entering,
transiting through, anchoring in, or
remaining within the regulated area
unless authorized by the Captain of the
Port Charleston or a designated
representative.
(2) Persons and vessels desiring to
enter, transit through, or remain within
the regulated area may contact the
Captain of the Port Charleston by
telephone at 843–740–7050, or a
designated representative via VHF radio
on channel 16, to request authorization.
If authorization to enter, transit through,
or remain within the regulated area is
granted by the Captain of the Port
Charleston or a designated
representative, all persons and vessels
receiving such authorization must
comply with the instructions of the
Captain of the Port Charleston or a
designated representative.
(3) The Coast Guard will provide
notice of the regulated area by Local
Notice to Mariners, Broadcast Notice to
Mariners, and on-scene designated
representatives.
(d) Enforcement period. This rule will
be enforced on July 4, 2016 from 9:15
p.m. until 10 p.m.
The Environmental Protection
Agency (EPA) is taking direct final
action to approve a December 1, 2015,
State Implementation Plan (SIP)
submittal from Kansas concerning
allocations of Cross-State Air Pollution
Rule (CSAPR) emission allowances.
Under CSAPR, large electricity
generating units in Kansas are subject to
a Federal Implementation Plan (FIP)
requiring the units to participate in
CSAPR’s Federal trading program for
annual emissions of nitrogen oxides
(NOX). This action approves Kansas’s
adoption into its SIP of state regulations
establishing state-determined
allocations to replace EPA’s default
allocations to Kansas units of CSAPR
allowances for annual NOX emissions
for 2017 through 2019. EPA is
approving the SIP revision because it
meets the requirements of the Clean Air
Act (CAA) and EPA’s regulations for
approval of an abbreviated SIP revision
replacing EPA’s default allocations of
CSAPR emission allowances with statedetermined allocations. Approval of this
SIP revision does not alter any provision
of CSAPR’s Federal trading program for
annual NOX emissions as applied to
Kansas units other than the allowance
allocation provisions, and the FIP
requiring the units to participate in the
trading program (as modified by the SIP
revision) remains in place. The approval
is being issued as a direct final rule
without a prior proposed rule because
EPA views it as uncontroversial and
does not anticipate adverse comment.
DATES: This direct final rule will be
effective August 15, 2016, without
further notice, unless EPA receives
adverse comment by July 29, 2016. If
EPA receives adverse comment, we will
publish a timely withdrawal of the
direct final rule in the Federal Register
informing the public that the rule will
not take effect.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R07–
OAR–2016–0303, to https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Once submitted, comments cannot be
edited or removed from Regulations.gov.
EPA may publish any comment received
to its public docket. Do not submit
electronically any information you
consider to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Multimedia submissions (audio, video,
etc.) must be accompanied by a written
comment. The written comment is
considered the official comment and
should include discussion of all points
Dated: June 24, 2016.
B.D. Falk,
Commander, U.S. Coast Guard, Acting
Captain of the Port Charleston.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation
(water), Reporting and recordkeeping
requirements, Security measures,
Waterways.
For the reasons discussed in the
preamble, the Coast Guard amends 33
CFR part 165 as follows:
[FR Doc. 2016–15415 Filed 6–28–16; 8:45 am]
BILLING CODE 9110–04–P
PART 165—REGULATED NAVIGATION
AREAS AND LIMITED ACCESS AREAS
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
1. The authority citation for part 165
continues to read as follows:
[EPA–R07–OAR–2016–0303; FRL–9948–13–
Region 7]
Authority: 33 U.S.C. 1231; 50 U.S.C. 191;
33 CFR 1.05–1, 6.04–1, 6.04–6, and
Department of Homeland Security Delegation
No. 0170.1.
Approval and Promulgation of Air
Quality Implementation Plans; State of
Kansas; Cross-State Air Pollution Rule
■
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§ 165.T07–0347 Safety Zone; Fourth of
July Fireworks Murrells Inlet, SC.
2. Add a temporary § 165.T07–0347 to
read as follows:
■
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Environmental Protection
Agency (EPA).
AGENCY:
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Direct final rule.
SUMMARY:
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you wish to make. EPA will generally
not consider comments or comment
contents located outside of the primary
submission (i.e., on the web, cloud, or
other file sharing system). For
additional submission methods, the full
EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www2.epa.gov/dockets/
commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Mr.
Larry Gonzalez, Air Planning and
Development Branch, Air and Waste
Management Division, EPA Region 7,
11201 Renner Boulevard, Lenexa KS
66219; telephone number: (913) 551–
7041; email address:
Gonzalez.larry@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document ‘‘we,’’ ‘‘us,’’
or ‘‘our’’ refer to EPA. This section
provides additional information by
addressing the following:
I. What is being addressed in this document?
II. Background on CSAPR and CSAPRRelated SIP Revisions
III. Conditions for Approval of CSAPRRelated SIP Revisions
IV. Kansas’s SIP Submittal and EPA’s
Analysis
A. Kansas’s SIP Submittal
B. EPA’s Analysis of Kansas’ Submittal
1. Timeliness and Completeness of SIP
Submittal
2. Methodology Covering All Allowances
Potentially Requiring Allocation
3. Assurance That Total Allocations Will
Not Exceed the State Budget
4. Timely Submission of State-Determined
Allocations to EPA
5. No Changes to Allocations Already
Submitted to EPA or Recorded
6. No Other Substantive Changes to Federal
Trading Program Provisions
V. EPA’s Action on Kansas’ Submittal
I. What is being addressed in this
document?
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EPA is taking direct final action to
approve a revision to the SIP for Kansas
concerning allocations of allowances
used in the CSAPR 1 Federal trading
program for annual emissions of NOX.
Large electricity generating units in
Kansas are subject to a CSAPR FIP that
requires the units to participate in the
Federal CSAPR NOX Annual Trading
Program.2 Each of CSAPR’s Federal
1 Federal Implementation Plans; Interstate
Transport of Fine Particulate Matter and Ozone and
Correction of SIP Approvals, 76 FR 48208 (August
8, 2011), (codified as amended at 40 CFR 52.38 and
52.39 and subparts AAAAA through DDDDD of 40
CFR part 97).
2 EPA has proposed to replace the terms
‘‘Transport Rule’’ and ‘‘TR’’ in the text of the Code
of Federal Regulations with the updated terms
‘‘Cross-State Air Pollution Rule’’ and ‘‘CSAPR.’’ 80
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trading programs includes default
provisions governing the allocation
among participating units of emission
allowances used for compliance under
that program. CSAPR also provides a
process for the submission and approval
of SIP revisions to replace EPA’s default
allocations with state-determined
allocations.
The SIP revision approved in this
action incorporates into Kansas’ SIP
state regulations establishing statedetermined allowance allocations to
replace EPA’s default allocations to
Kansas units of CSAPR NOX Annual
allowances issued for the control
periods in 2017 through 2019. EPA is
approving the SIP revision because it
meets the requirements of the CAA and
EPA’s regulations for approval of an
abbreviated SIP revision replacing
EPA’s default allocations of CSAPR
emission allowances with statedetermined allocations. Approval of this
SIP revision does not alter any provision
of the CSAPR NOX Annual Trading
Program as applied to Kansas units
other than the allowance allocation
provisions, and the FIP requiring those
units to participate in the program (as
modified by this SIP revision) remains
in place. Because the SIP revision
addresses only the control periods in
2017 through 2019, absent submission
and approval of a further SIP revision,
allocations of CSAPR NOX Annual
allowances for control periods in 2020
and later years will be made pursuant to
the default allocation provisions.
Large electricity generating units in
Kansas are also subject to an additional
CSAPR FIP requiring them to participate
in the Federal CSAPR SO2 Group 2
Trading Program. Kansas’s SIP submittal
does not seek to replace the default
allocations of CSAPR SO2 Group 2
allowances to Kansas units. Approval of
this SIP revision concerning another
CSAPR trading program has no effect on
the CSAPR SO2 Group 2 Trading
Program as applied to Kansas units, and
the FIP requiring the units to participate
in that program remains in place.
Section II of this document
summarizes relevant aspects of the
CSAPR Federal trading programs and
FIPs as well as the range of
opportunities states have to submit SIP
revisions to modify or replace the FIP
requirements while continuing to rely
on CSAPR’s trading programs to address
the states’ obligations to mitigate
interstate air pollution. Section III
describes the specific conditions for
approval of such SIP revisions. Section
IV contains EPA’s analysis of Kansas’
FR 75706, 75759 (December 3, 2015). Except where
otherwise noted, EPA uses the updated terms here.
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SIP submittal, and section V sets forth
EPA’s action on the submittal.
We are publishing this direct final
rule without a prior proposed rule
because we view this as a
noncontroversial action and anticipate
no adverse comment. However, in the
Proposed Rules section of this Federal
Register, we are publishing a separate
document that will serve as the
proposed rule to approve the SIP
revision if adverse comments are
received on this direct final rule. We
will not institute a second comment
period on this action. Any parties
interested in commenting must do so at
this time. For further information about
commenting on this rule, see the
ADDRESSES section of this document. If
EPA receives adverse comment, we will
publish a timely withdrawal in the
Federal Register informing the public
that this direct final rule will not take
effect. We will address all public
comments in any subsequent final rule
based on the proposed rule.
II. Background on CSAPR and CSAPRRelated SIP Revisions
EPA issued CSAPR in July 2011 to
address the requirements of CAA
section 110(a)(2)(D)(i)(I) concerning
interstate transport of air pollution. As
amended, CSAPR requires twenty-eight
Eastern states to limit their statewide
emissions of SO2 and/or NOX in order
to mitigate transported air pollution
unlawfully impacting other states’
ability to attain or maintain three
National Ambient Air Quality Standards
(NAAQS): The 1997 ozone NAAQS, the
1997 annual fine particulate matter
(PM2.5) NAAQS, and the 2006 24-hour
PM2.5 NAAQS. The emissions
limitations are defined in terms of
maximum statewide ‘‘budgets’’ for
emissions of annual SO2, annual NOX,
and/or ozone-season NOX by each
covered state’s large electricity
generating units. The budgets are
implemented in two phases of generally
increasing stringency, with the Phase 1
budgets applying to emissions in 2015
and 2016 and the Phase 2 budgets
applying to emissions in 2017 and later
years. As a mechanism for achieving
compliance with the emissions
limitations, CSAPR established four
Federal emissions trading programs: A
program for annual NOX emissions, a
program for ozone-season NOX
emissions, and two geographically
separate programs for annual SO2
emissions. CSAPR also established up to
three FIPs applicable to the large
electricity generating units in each
covered state. Each CSAPR FIP requires
a state’s units to participate in one of the
four CSAPR trading programs.
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CSAPR includes provisions under
which states may submit and EPA will
approve SIP revisions to modify or
replace the CSAPR FIP requirements
while allowing states to continue to
meet their transport-related obligations
using either CSAPR’s Federal emissions
trading programs or state emissions
trading programs integrated with the
Federal programs.3 Through such a SIP
revision, a state may replace EPA’s
default provisions for allocating
emission allowances among the state’s
units, employing any state-selected
methodology to allocate or auction the
allowances, subject to timing conditions
and limits on overall allowance
quantities. In the case of CSAPR’s
Federal trading program for ozoneseason NOX emissions (or an integrated
state trading program), a state may also
expand trading program applicability to
include certain smaller electricity
generating units. However, no emissions
budget increases or other substantive
changes to the trading program
provisions are allowed. If a state wants
to replace CSAPR FIP requirements with
SIP requirements under which the
state’s units participate in a state trading
program that is integrated with and
identical to the federal trading program
even as to the allocation and
applicability provisions, the state may
submit a SIP revision for that purpose
as well. A state whose units are subject
to multiple CSAPR FIPs and Federal
trading programs may submit SIP
revisions to modify or replace the
requirements under either some or all of
those FIPs.
States can submit two basic forms of
CSAPR-related SIP revisions effective
for emissions control periods in 2017 or
later years.4 Specific conditions for
approval of each form of SIP revision
are set forth in the CSAPR regulations,
as described in section III below. Under
the first alternative—an ‘‘abbreviated’’
SIP revision—a state may submit a SIP
revision that upon approval replaces the
default allowance allocation and/or
applicability provisions of a CSAPR
Federal trading program for the state.5
Approval of an abbreviated SIP revision
leaves the corresponding CSAPR FIP
and all other provisions of the relevant
3 See 40 CFR 52.38, 52.39. States also retain the
ability to submit SIP revisions to meet their
transport-related obligations using mechanisms
other than the CSAPR Federal trading programs or
integrated state trading programs.
4 CSAPR also provides for a third, more
streamlined form of SIP revision that is effective
only for control periods in 2016 and is not relevant
here. See § 52.38(a)(3), (b)(3); § 52.39(d), (g).
5 § 52.38(a)(4), (b)(4); § 52.39(e), (h).
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Federal trading program in place for the
state’s units.
Under the second alternative—a
‘‘full’’ SIP revision—a state may submit
a SIP revision that upon approval
replaces a CSAPR Federal trading
program for the state with a state trading
program integrated with the Federal
trading program, so long as the state
trading program is substantively
identical to the Federal trading program
or does not substantively differ from the
Federal trading program except as
discussed above with regard to the
allowance allocation and/or
applicability provisions.6 For purposes
of a full SIP revision, a state may either
adopt state rules with complete trading
program language, incorporate the
Federal trading program language into
its state rules by reference (with
appropriate conforming changes), or
employ a combination of these
approaches.
The CSAPR regulations identify
several important consequences and
limitations associated with approval of
a full SIP revision. First, upon EPA’s
approval of a full SIP revision as
correcting the deficiency in the state’s
SIP that was the basis for a particular
CSAPR FIP, the obligation to participate
in the corresponding CSAPR Federal
trading program is automatically
eliminated for units subject to the state’s
jurisdiction without the need for a
separate EPA withdrawal action, so long
as EPA’s approval of the SIP is full and
unconditional.7 Second, approval of a
full SIP revision does not terminate the
obligation to participate in the
corresponding CSAPR Federal trading
program for any units located in any
Indian country within the borders of the
state, and if and when a unit is located
in Indian country within a state’s
borders, EPA may modify the SIP
approval to exclude from the SIP, and
include in the surviving CSAPR FIP
instead, certain trading program
provisions that apply jointly to units in
the state and to units in Indian country
within the state’s borders.8 Finally, if at
the time a full SIP revision is approved
EPA has already started recording
allocations of allowances for a given
control period to a state’s units, the
Federal trading program provisions
authorizing EPA to complete the process
of allocating and recording allowances
for that control period to those units
will continue to apply, unless EPA’s
approval of the SIP revision provides
otherwise.9
Certain CSAPR Phase 2 emissions
budgets have been remanded to EPA for
reconsideration.10 However, the CSAPR
trading programs remain in effect and
all CSAPR emissions budgets likewise
remain in effect pending EPA final
action to address the remands. Neither
of the CSAPR emissions budgets
applicable to Kansas units has been
remanded.
In 2015, EPA proposed to update
CSAPR to address Eastern states’
interstate air pollution mitigation
obligations with regard to the 2008
ozone NAAQS. Among other things, the
proposed rule would establish a FIP
requiring Kansas units to participate in
the CSAPR NOX Ozone Season Trading
Program and would make technical
corrections and nomenclature changes
throughout the CSAPR regulations,
including the CSAPR FIPs at 40 CFR
part 52 and the CSAPR Federal trading
program regulations for annual NOX,
ozone-season NOX, and SO2 emissions
at 40 CFR part 97.11
III. Conditions for Approval of CSAPRRelated SIP Revisions
Each CSAPR-related abbreviated or
full SIP revision must meet the
following general submittal conditions:
• Timeliness and completeness of SIP
submittal. If a state wants to replace the
default allowance allocation or
applicability provisions of a CSAPR
Federal trading program, the complete
SIP revision must be submitted to EPA
by December 1 of the year before the
deadlines described below for
submitting allocation or auction
amounts to EPA for the first control
period for which the state wants to
replace the default allocation and/or
applicability provisions.12 (This SIP
submission deadline is inoperative in
the case of a SIP revision that seeks only
to replace a CSAPR FIP and Federal
trading program with a SIP and a
substantively identical state trading
program integrated with the Federal
trading program.) The SIP submittal
completeness criteria in section 2.1 of
appendix V to 40 CFR part 51 also
apply.
In addition to the general submittal
conditions, a CSAPR-related abbreviated
or full SIP seeking to address the
allocation or auction of emission
allowances must meet the following
further conditions:
9 § 52.38(a)(7),
(b)(7); § 52.39(k).
Homer City Generation, L.P. v. EPA, 795
F.3d 118, 138 (D.C. Cir. 2015).
11 80 FR 75706, 75710, 75757 (December 3, 2015).
12 40 CFR 52.38(a)(4)(ii), (a)(5)(vi), (b)(4)(iii),
(b)(5)(vii); § 52.39(e)(2), (f)(6), (h)(2), (i)(6).
10 EME
6 § 52.38(a)(5),
(b)(5); § 52.39(f), (i).
(b)(6); § 52.39(j).
8 § 52.38(a)(5)(iv)–(v), (a)(6), (b)(5)(v)–(vi), (b)(6);
§ 52.39(f)(4)–(5), (i)(4)–(5), (j).
7 § 52.38(a)(6),
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• Methodology covering all
allowances potentially requiring
allocation. For each Federal trading
program addressed by a SIP revision,
the SIP revision’s allowance allocation
or auction methodology must replace
both the Federal program’s default
allocations to existing units 13 at 40 CFR
97.411(a), 97.511(a), 97.611(a), or
97.711(a), as applicable, and the Federal
trading program’s provisions for
allocating allowances from the new unit
set-aside (NUSA) for the state at 40 CFR
97.411(b)(1) and 97.412(a), 97.511(b)(1)
and 97.512(a), 97.611(b)(1) and
97.612(a), or 97.711(b)(1) and 97.712(a),
as applicable.14 In the case of a state
with Indian country within its borders,
while the SIP revision may neither alter
nor assume the Federal program’s
provisions for administering the Indian
country NUSA for the state, the SIP
revision must include procedures
addressing the disposition of any
otherwise unallocated allowances from
an Indian country NUSA that may be
made available for allocation by the
state after EPA has carried out the
Indian country NUSA allocation
procedures.15
• Assurance that total allocations will
not exceed the state budget. For each
Federal trading program addressed by a
SIP revision, the total amount of
allowances auctioned or allocated for
each control period under the SIP
revision (prior to the addition by EPA of
any unallocated allowances from any
Indian country NUSA for the state) may
not exceed the state’s emissions budget
for the control period less the sum of the
amount of any Indian country NUSA for
the state for the control period and any
allowances already allocated to the
state’s units for the control period and
recorded by EPA.16 Under its SIP
revision, a state is free to not allocate
Units
Year of the control period
Existing ............................................
2017 and 2018 ..............................
2019 and 2020 ..............................
2021 and 2022 ..............................
2023 and later years .....................
All years .........................................
Other ...............................................
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• No changes to allocations already
submitted to EPA or recorded. The SIP
revision must not provide for any
change to the amounts of allowances
allocated or auctioned to any unit after
those amounts are submitted to EPA or
any change to any allowance allocation
determined and recorded by EPA under
the Federal trading program
regulations.18
• No other substantive changes to
Federal trading program provisions. The
SIP revision may not substantively
change any other trading program
provisions, except in the case of a SIP
revision that also expands program
applicability as described below.19 Any
new definitions adopted in the SIP
revision (in addition to the Federal
trading program’s definitions) may
apply only for purposes of the SIP
revision’s allocation or auction
provisions.20
In addition to the general submittal
conditions, a CSAPR-related abbreviated
or full SIP revision seeking to expand
13 In the context of the approval conditions for
CSAPR-related SIP revisions, an ‘‘existing unit’’ is
a unit for which EPA has determined default
allowance allocations (which could be allocations
of zero allowances) in the rulemakings establishing
and amending CSAPR. A spreadsheet showing
EPA’s default allocations to existing units is posted
at www.epa.gov/crossstaterule/techinfo.html.
14 § 52.38(a)(4)(i), (a)(5)(i), (b)(4)(ii), (b)(5)(ii);
§ 52.39(e)(1), (f)(1), (h)(1), (i)(1).
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allowances to some or all potentially
affected units, to allocate or auction
allowances to entities other than
potentially affected units, or to allocate
or auction fewer than the maximum
permissible quantity of allowances and
retire the remainder.
• Timely submission of statedetermined allocations to EPA. The SIP
revision must require the state to submit
to EPA the amounts of any allowances
allocated or auctioned to each unit for
each control period (other than
allowances initially set aside in the
state’s allocation or auction process and
later allocated or auctioned to such
units from the set-aside amount) by the
following deadlines.17 Note that the
submission deadlines differ for amounts
allocated or auctioned to units
considered existing units for CSAPR
purposes and amounts allocated or
auctioned to other units.
Deadline for submission to EPA of allocations or auction results
June 1, 2016.
June 1, 2017.
June 1, 2018.
June 1 of the fourth year before the year of the control period.
July 1 of the year of the control period.
applicability under the CSAPR NOX
Ozone Season Trading Program (or an
integrated state trading program) must
meet the following further conditions:
• Only electricity generating units
with nameplate capacity of at least 15
MWe. The SIP revision may expand
applicability only to additional fossil
fuel-fired boilers or combustion turbines
serving generators producing electricity
for sale, and only by lowering the
generator nameplate capacity threshold
used to determine whether a particular
boiler or combustion turbine serving a
particular generator is a potentially
affected unit. The nameplate capacity
threshold adopted in the SIP revision
may not be less than 15 MWe.21
• No other substantive changes to
Federal trading program provisions. The
SIP revision may not substantively
change any other trading program
provisions, except in the case of a SIP
revision that also addresses the
allocation or auction of emission
allowances as described above.22
In addition to the general submittal
conditions and the other applicable
conditions described above, a CSAPRrelated full SIP revision must meet the
following further conditions:
• Complete, substantively identical
trading program provisions. The SIP
revision must adopt complete state
trading program regulations
substantively identical to the complete
Federal trading program regulations at
40 CFR 97.402 through 97.435, 97.502
through 97.535, 97.602 through 97.635,
or 97.702 through 97.735, as applicable,
except as described above in the case of
a SIP revision that seeks to replace the
default allowance allocation and/or
applicability provisions.
• Only non-substantive substitutions
for the term ‘‘State.’’ The SIP revision
may substitute the name of the state for
the term ‘‘State’’ as used in the Federal
trading program regulations, but only to
the extent that EPA determines that the
substitutions do not substantively
15 See §§ 97.412(b)(10)(ii), 97.512(b)(10)(ii),
97.612(b)(10)(ii), 97.712(b)(10)(ii).
16 § 52.38(a)(4)(i)(A), (a)(5)(i)(A), (b)(4)(ii)(A),
(b)(5)(ii)(A); § 52.39(e)(1)(i), (f)(1)(i), (h)(1)(i),
(i)(1)(i).
17 § 52.38(a)(4)(i)(B)–(C), (a)(5)(i)(B)–(C),
(b)(4)(ii)(B)–(C), (b)(5)(ii)(B)–(C); § 52.39(e)(1)(ii)–
(iii), (f)(1)(ii)–(iii), (h)(1)(ii)–(iii), (i)(1)(ii)–(iii).
18 § 52.38(a)(4)(i)(D), (a)(5)(i)(D), (b)(4)(ii)(D),
(b)(5)(ii)(D); § 52.39(e)(1)(iv), (f)(1)(iv), (h)(1)(iv),
(i)(1)(iv).
19 § 52.38(a)(4), (a)(5), (b)(4), (b)(5); § 52.39(e), (f),
(h), (i).
20 § 52.38(a)(4)(i), (a)(5)(ii), (b)(4)(ii), (b)(5)(iii);
§ 52.39(e)(1), (f)(2), (h)(1), (i)(2).
21 § 52.38(b)(4)(i), (b)(5)(i).
22 § 52.38(b)(4), (b)(5).
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change the trading program
regulations.23
• Exclusion of provisions addressing
units in Indian country. The SIP
revision may not include references to
or impose requirements on any unit in
any Indian country within the state’s
borders and must not include the
Federal trading program provisions
governing allocation of allowances from
any Indian country NUSA for the
state.24
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IV. Kansas’s SIP Submittal and EPA’s
Analysis
A. Kansas’s SIP Submittal
In the CSAPR rulemaking, EPA
determined that air pollution
transported from Kansas unlawfully
affected other states’ ability to attain or
maintain the 2006 24-hour PM2.5
NAAQS.25 Kansas units meeting the
CSAPR applicability criteria are
consequently subject to CSAPR FIPs
that require participation in the CSAPR
NOX Annual Trading Program and the
CSAPR SO2 Group 2 Trading Program.26
On December 1, 2015, Kansas
submitted to EPA an abbreviated SIP
revision that, if approved, would
replace the default allowance allocation
provisions of the CSAPR NOX Annual
Trading Program for the state’s EGUs for
the control periods in 2017 through
2019 with provisions establishing statedetermined allocations for those control
periods but that would leave the
corresponding CSAPR FIP and all other
provisions of that trading program in
place. The SIP submittal generally
consists of a duly adopted state rule,
K.A.R. 28–19–274 (Nitrogen oxides;
allocations), which in turn adopts by
reference a document entitled ‘‘TR NOX
annual allowance allocations for 2017,
2018, and 2019,’’ dated July 17, 2015.
The latter document contains tables
establishing fixed amounts of
allowances to be allocated to specified
Kansas electricity generating units
under the provisions of the state rule.
For each of the years 2017, 2018, and
2019, there is a table with allocations of
all allowances in the Kansas budget
other than allowances in the Indian
country NUSA for Kansas. For each of
those years there is a second table with
potential allocations to the same units of
otherwise unallocated allowances from
the Indian country NUSA for Kansas if
all of those allowances should be made
available by EPA for state allocation.
The rule also includes provisions for
23 § 52.38(a)(5)(iii),
(b)(5)(iv); § 52.39(f)(3), (i)(3).
(b)(5)(v); § 52.39(f)(4), (i)(4).
25 76 FR 48208, 48213 (August 8, 2011).
26 40 CFR 52.38(a)(2); § 52.39(c); § 52.882(a);
§ 52.883.
24 § 52.38(a)(5)(iv),
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computing potential allocations to the
same units of otherwise unallocated
allowances from the Indian country
NUSA for Kansas if some but not all of
those allowances should be made
available by EPA for state allocation.
Finally, the rule includes provisions
defining several terms used either in the
rule’s allocation provisions or in other
definitions.
The SIP revision was submitted to
EPA by a letter from the Kansas
Secretary of Health and Environment
acting as the designated representative
of the Governor of Kansas. The letter
describes steps taken by Kansas to
provide public notice prior to adoption
of the state rule. The letter also indicates
that paragraphs 28–19–274(a)(2)(A) and
(B) of the Kansas rule, which contain
definitions of certain terms differing
from the definitions of the same terms
in the Federal trading program
regulations, are excluded from the SIP
submittal.
EPA has previously approved a
separate Kansas SIP revision replacing
the default allowance allocation
provisions of the CSAPR NOX Annual
Trading Program for Kansas existing
units for the control period in 2016.27 At
this time, Kansas has not submitted any
SIP revision to modify or replace the
CSAPR FIP that requires the state’s units
to participate in the CSAPR SO2 Group
2 Trading Program.
B. EPA’s Analysis of Kansas’s Submittal
1. Timeliness and Completeness of SIP
Submittal
Kansas’ SIP revision seeks to establish
state-determined allocations of CSAPR
NOX Annual allowances for the control
periods in 2017, 2018, and 2019. Under
40 CFR 52.38(a)(4)(i)(B), the deadline for
submission of state-determined
allocations for the 2017 and 2018
control periods is June 1, 2016, which
under § 52.38(a)(4)(ii) makes December
1, 2015 the deadline for submission to
EPA of a complete SIP revision
establishing state-determined
allocations for those control periods.
Kansas submitted its SIP revision to
EPA by a letter dated and delivered
electronically on December 1, 2015, and
EPA has determined that the submittal
complies with the applicable minimum
completeness criteria in section 2.1 of
appendix V to 40 CFR part 51. Because
Kansas’s SIP revision was timely
submitted and meets the applicable
completeness criteria, it meets the
condition under 40 CFR 52.38(a)(4)(ii)
for timely submission of a complete SIP
revision.
27 80
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2. Methodology Covering All
Allowances Potentially Requiring
Allocation
Paragraph 28–19–274(c) of the Kansas
rule provides that the allowance
allocation methodology adopted by
Kansas in the SIP revision replaces the
provisions of 40 CFR 97.411(a), thereby
addressing all allowances that under the
default allocation provisions for the
Federal trading program would be
allocated to units considered existing
units for CSAPR purposes (prior to
allocation of any otherwise unallocated
allowances from the NUSA or Indian
country NUSA for Kansas). The same
Kansas rule paragraph also provides that
the state’s allocation methodology
replaces the provisions of 40 CFR
97.411(b)(1) and 97.412(a), thereby
addressing allocation of allowances in
the NUSA established for Kansas under
the Federal trading program. In
addition, paragraphs 28–19–274(d) and
(e) of the Kansas rule provide
procedures addressing any otherwise
unallocated allowances from the Indian
country NUSA for Kansas that may be
made available for allocation by the
state after EPA has carried out the
Indian country NUSA allocation
procedures. Collectively, the allocation
provisions in the Kansas rule therefore
enable Kansas’ SIP revision to meet the
condition under 40 CFR 52.38(a)(4)(i)
that the state’s allocation or auction
methodology must cover all allowances
potentially requiring allocation by the
state.
3. Assurance That Total Allocations
Will Not Exceed the State Budget
Paragraph 28–19–274(d) of the Kansas
rule provides for allowance allocations
to be made in fixed amounts set forth in
tables adopted by reference into the
state rules. For each of the three control
periods for which the rule allocates
allowances, there is a table providing
allocations for the allowances that
absent this SIP revision would be
allocated pursuant to 40 CFR 97.411(a),
97.411(b)(1), and 97.412(a). For each of
the control periods, the sum of the fixed
amounts allocated according to these
tables is 31,323 allowances, which is
equal to the Kansas budget for the
control period (31,354 tons) less the
amount of the Indian country NUSA for
Kansas (31 tons).28 EPA has not yet
allocated or recorded CSAPR
allowances for the 2017 through 2019
control periods. The allocation
methodology in Kansas’s SIP revision
therefore meets the condition under 40
CFR 52.38(a)(4)(i)(A) that the total
28 See
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amount of allowances allocated under
the SIP revision (before the addition of
any otherwise unallocated allowances
from an Indian country NUSA) may not
exceed the state’s budget for the control
period less the amount of the Indian
country NUSA for the state and any
allowances already allocated and
recorded by EPA.
While the Kansas rule also has
provisions providing potential
allocations of allowances from the
Indian country NUSA for Kansas, under
paragraph 28–19–274(b) of the Kansas
rule the only allowances available for
allocation under those provisions are
otherwise unallocated allowances that
EPA has made available from the Indian
country NUSA for state allocation after
having carried out the Indian country
NUSA allocation procedures. The total
of the allowances allocated under the
SIP revision and any allowances
allocated by EPA from the Indian
country NUSA for Kansas therefore will
not exceed the state budget, consistent
with the purpose of 40 CFR
52.38(a)(4)(i)(A).
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4. Timely Submission of StateDetermined Allocations to EPA
The state-determined allowance
allocations established by the Kansas
rule for each of the three control periods
covered by the rule are included in
tables that have been adopted by
reference into the state rule and that
were provided to EPA as part of the SIP
submittal on December 1, 2015. As
noted above, in the case of a SIP
revision seeking to allocate allowances
starting with the 2017 control period,
the earliest deadline for submission to
EPA of the state-determined allocations
is June 1, 2016. Kansas’ SIP revision
therefore meets the conditions under 40
CFR 52.38(a)(4)(i)(B) and (C) requiring
that the SIP revision provide for
submission of state-determined
allowance allocations to EPA by the
deadlines specified in those provisions.
5. No Changes to Allocations Already
Submitted to EPA or Recorded
The Kansas rule includes no
provision allowing alteration of
allocations after the allocation amounts
have been provided to EPA and no
provision allowing alteration of any
allocations made and recorded by EPA
under the Federal trading program
regulations, thereby meeting the
condition under 40 CFR
52.38(a)(4)(i)(D).
6. No Other Substantive Changes to
Federal Trading Program Provisions
Besides the provisions addressing
allowance allocations discussed above,
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the Kansas rule includes a number of
provisions defining terms used either in
the rule’s allocation provisions or in
other definitions. In paragraph 28–19–
274(a)(1), the rule adopts by reference
several terms defined in 40 CFR 97.402,
and in paragraph 28–19–274(b), the rule
defines a new term ‘‘Indian country new
unit set-aside allowance’’ that is used
only in the Kansas rule for purposes of
allowance allocations. These provisions
do not make substantive changes to the
Federal trading program provisions.29
Paragraphs 28–19–274(a)(2)(A) and
(B) of the Kansas rule adopt definitions
of ‘‘administrator’’, ‘‘State’’, and
‘‘permitting authority’’ that
substantively differ from the definitions
of these terms in the Federal trading
program regulations. While these terms
are not used directly in the Kansas rule,
they are used in the Federal trading
program definitions of some of the other
terms that are adopted by reference
under paragraph 28–19–274(a)(1).
Inclusion of the Kansas rule’s
definitions of ‘‘administrator’’, ‘‘State’’,
and ‘‘permitting authority’’ in the SIP
revision therefore would cause the
meanings of those other adopted terms
as used in the Kansas rule to
substantively differ from the meanings
of the same terms as used in the Federal
trading program regulations. After being
advised of these differences by EPA,
Kansas elected to exclude the provisions
of paragraphs 28–19–274(a)(2)(A) and
(B) of the Kansas rule from the SIP
revision, as the state’s letter submitting
the SIP revision makes clear. (Without
the excluded provisions, the rule
remains fully functional for its intended
purpose of allocating CSAPR allowances
among the state’s units.) Considering
Kansas’ SIP revision without the
excluded rule provisions, EPA has
determined that the SIP revision meets
the condition under 40 CFR 52.38(a)(4)
of making no substantive changes to the
Federal trading program regulations
beyond the provisions addressing
allowance allocations.
29 EPA has proposed to make certain technical
corrections to the CSAPR FIP and Federal trading
program regulations in order to more accurately
reflect EPA’s intent as described in the CSAPR
rulemaking and has also proposed to replace ‘‘TR’’
with ‘‘CSAPR’’ throughout the regulations (for
example, ‘‘TR NOX Annual unit’’ would become
‘‘CSAPR NOX Annual unit’’). See 80 FR 75706,
75758. Because the proposed technical corrections
merely clarify and do not change EPA’s
interpretations, where the proposed corrections
would apply to a provision incorporated by
reference in the Kansas rule, EPA would interpret
the Kansas rule as reflecting the corrections.
Further, EPA anticipates that if the proposed
nomenclature updates are finalized, the final
CSAPR Federal regulations would explicitly
provide that terms that include ‘‘CSAPR’’
encompass otherwise identical terms in approved
SIP revisions that include ‘‘TR’’.
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V. EPA’s Action on Kansas’ Submittal
EPA is taking direct final action to
approve the revision to Kansas’ SIP
submitted on December 1, 2015
concerning allocations to Kansas units
of CSAPR NOX Annual allowances for
the control periods in 2017, 2018, and
2019. This SIP revision adopts into the
SIP the rule codified in Kansas’
regulations at K.A.R. 28–19–274
excluding paragraphs 28–19–
274(a)(2)(A) and (B). The Kansas rule in
turn incorporates a document entitled
‘‘TR NOX annual allowance allocations
for 2017, 2018, and 2019,’’ dated July
17, 2015, which contains tables setting
forth state-determined allowance
allocations to individual Kansas units.
Following this approval, allocations of
these allowances will be made
according to the provisions of Kansas’
SIP instead of CSAPR’s default
allocation provisions at 40 CFR
97.411(a), 97.411(b)(1), and 97.412(a).
Approval of this SIP revision does not
alter any provision of the Federal
CSAPR NOX Annual Trading Program as
applied to Kansas units other than the
allowance allocation provisions, and the
FIP requiring the units to participate in
that program (as modified by this SIP
revision) remains in place. EPA is
approving the SIP revision because it
meets the requirements of the CAA and
EPA’s regulations for approval of an
abbreviated SIP revision replacing
EPA’s default allocations of CSAPR
emission allowances with statedetermined allocations, as discussed in
section IV above. Because the SIP
revision addresses only the control
periods in 2017 through 2019, absent
submission and approval of a further
SIP revision, allocations of CSAPR NOX
Annual allowances for control periods
in 2020 and later years will be made
pursuant to the default allocation
provisions.
Large electricity generating units in
Kansas are also subject to an additional
CSAPR FIP requiring them to participate
in the Federal CSAPR SO2 Group 2
Trading Program. Kansas’s SIP submittal
does not seek to replace the default
allocations of CSAPR SO2 Group 2
allowances to Kansas units. Approval of
this SIP revision concerning another
CSAPR trading program has no effect on
the Federal CSAPR SO2 Group 2
Trading Program as applied to Kansas
units, and the FIP requiring the units to
participate in that program remains in
place.
Incorporation by Reference
In this rule, EPA is finalizing
regulatory text that includes
incorporation by reference. In
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accordance with requirements of 1 CFR
51.5, EPA is finalizing the incorporation
by reference of the Kansas Cross-State
Air Pollution Regulations described in
the direct final amendments to 40 CFR
part 52 set forth below. EPA has made,
and will continue to make, these
documents generally available
electronically through
www.regulations.gov and at the
appropriate EPA office (see the
ADDRESSES section of this preamble for
more information).
Statutory and Executive Order Reviews
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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 approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this action
merely approves state law as meeting
Federal requirements and does not
impose additional requirements beyond
those imposed by state law. For that
reason, this action:
• Is not a significant regulatory action
subject to review by the Office of
Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• 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);
• Does not have Federalism
implications as specified in Executive
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Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
this rulemaking does not involve
technical standards; and
• 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
(59 FR 7629, February 16, 1994).
The SIP is not approved to apply on
any Indian reservation land or in any
other area where EPA or an Indian tribe
has demonstrated that a tribe has
jurisdiction. In those areas of Indian
country, the rule does not have tribal
implications and will not impose
substantial direct costs on tribal
governments or preempt tribal law as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
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.
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This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
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 August 29, 2016. 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,
Administrative practice and procedure,
Air pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides.
Dated: June 16, 2016.
Mark Hague,
Regional Administrator, Region 7.
For the reasons stated in the
preamble, EPA amends 40 CFR part 52
as set forth below:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart R—Kansas
2. Amend § 52.870(c), by adding entry
28–19–274, in numerical order, under
the subheading entitled ‘‘General
Provisions’’ to read as follows:
■
§ 52.870
*
Identification of plan.
*
*
(c) * * *
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EPA-APPROVED KANSAS REGULATIONS
Kansas citation
State effective
date
Title
EPA approval date
Explanation
Kansas Department of Health and Environment Ambient Air Quality Standards and Air Pollution Control
*
*
*
*
*
*
*
General Provisions
*
K.A.R. 28–19–274 .....
*
*
Nitrogen Oxide allocations .........
*
*
*
*
*
*
*
*
[FR Doc. 2016–15040 Filed 6–28–16; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R09–OAR–2014–0636; FRL–9948–24–
Region 9]
Designation of Areas for Air Quality
Planning Purposes; California; San
Joaquin Valley; Reclassification as
Serious Nonattainment for the 2006
PM2.5 NAAQS; Correction
Environmental Protection
Agency (EPA).
ACTION: Final rule; correcting
amendment.
AGENCY:
This document corrects a
paragraph designation error that
occurred in a January 20, 2016, final
rule pertaining to the Environmental
Protection Agency’s (EPA’s)
reclassification of the San Joaquin
Valley in California from Moderate to
Serious for the 2006 PM2.5 National
Ambient Air Quality Standards
(NAAQS). The paragraph designation in
that rulemaking conflicts with a
paragraph designation in a different
final rule. The EPA, therefore, is
correcting the erroneous paragraph
designation.
SUMMARY:
This correcting amendment is
effective on June 29, 2016.
FOR FURTHER INFORMATION CONTACT:
Wienke Tax, Air Planning Office (AIR–
2), U.S. Environmental Protection
Agency, Region IX, (415) 947–4192,
tax.wienke@epa.gov.
SUPPLEMENTARY INFORMATION: The EPA
published a final rule document on
January 20, 2016 (81 FR 2993) to
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DATES:
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*
6/29/16 and [Insert
Register citation].
*
*
reclassify the San Joaquin Valley
Moderate nonattainment area, including
areas of Indian country within it, as a
Serious nonattainment area for the 2006
PM2.5 NAAQS. In the January 20, 2016
document, the EPA included
amendatory instructions that added
paragraph (e) to 40 CFR 52.247. 81 FR
2993, at 3000 (column 2). However, in
a separate final rule published on
January 13, 2016 (81 FR 1514), the EPA
also included amendatory instructions
that added paragraph (e) to 40 CFR
52.247. 81 FR 1514, at 1520 (column 2).
As such, the amendments to 40 CFR
52.247 in the two final rules are in
conflict and cannot be implemented
together. The January 20, 2016 final rule
should have included amendatory
instructions adding paragraph (f), rather
than (e). This document corrects that
error.
The EPA has determined that this
action falls under the ‘‘good cause’’
exemption in section 553(b)(B) of the
Administrative Procedure Act (APA)
which, upon finding ‘‘good cause,’’
authorizes agencies to dispense with
public participation where public notice
and comment procedures are
impracticable, unnecessary or contrary
to the public interest. Public notice and
comment for this action are unnecessary
because the underlying rule for which
this correcting amendment has been
prepared was already subject to a 30-day
comment period and because the error
addressed herein does not change the
regulatory language in the rule. It only
changes the paragraph designation for
the relevant regulatory language. Thus,
no purpose would be served by
additional public notice and comment,
and additional public notice and
comment is unnecessary.
The EPA also finds that there is good
cause under APA section 553(d)(3) for
the correction in the amendatory
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*
*
Approval of EGU-specific NOX
allocations does not include
KAR 28–19–274(a)(2)(A) and
(a)(2)(B).
*
*
instructions and related paragraph
designation to become effective on the
date of publication. Section 553(d)(3) of
the APA allows an effective date less
than 30 days after publication ‘‘as
otherwise provided by the agency for
good cause found and published with
the rule.’’ 5 U.S.C. 553(d)(3). The EPA
finds that resolving the conflict in the
amendatory instructions in the two
relevant final rules does not create any
new regulatory requirements such that
affected parties would need time to
prepare before the rule takes effect.
Rather, this rule eliminates the
confusion caused by designating two
paragraphs in 40 CFR 52.247 as
paragraph (e). For these reasons, the
EPA finds good cause under APA
section 553(d)(3) for the correction in
the amendatory instructions associated
with the January 20, 2016 final rule to
become effective on the date of
publication of this final rule.
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). Because the agency has made
a ‘‘good cause’’ finding that this action
is not subject to notice-and-comment
requirements under the Administrative
Procedure Act or any other statute as
indicated in the SUPPLEMENTARY
INFORMATION section, above, it is not
subject to the regulatory flexibility
provisions of the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.) or to sections
202 and 205 of the Unfunded Mandates
Reform Act of 1995 (UMRA) (Pub. L.
E:\FR\FM\29JNR1.SGM
29JNR1
]]>Agencies
[Federal Register Volume 81, Number 125 (Wednesday, June 29, 2016)]
[Rules and Regulations]
[Pages 42256-42263]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-15040]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R07-OAR-2016-0303; FRL-9948-13-Region 7]
Approval and Promulgation of Air Quality Implementation Plans;
State of Kansas; Cross-State Air Pollution Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is taking direct
final action to approve a December 1, 2015, State Implementation Plan
(SIP) submittal from Kansas concerning allocations of Cross-State Air
Pollution Rule (CSAPR) emission allowances. Under CSAPR, large
electricity generating units in Kansas are subject to a Federal
Implementation Plan (FIP) requiring the units to participate in CSAPR's
Federal trading program for annual emissions of nitrogen oxides
(NOX). This action approves Kansas's adoption into its SIP
of state regulations establishing state-determined allocations to
replace EPA's default allocations to Kansas units of CSAPR allowances
for annual NOX emissions for 2017 through 2019. EPA is
approving the SIP revision because it meets the requirements of the
Clean Air Act (CAA) and EPA's regulations for approval of an
abbreviated SIP revision replacing EPA's default allocations of CSAPR
emission allowances with state-determined allocations. Approval of this
SIP revision does not alter any provision of CSAPR's Federal trading
program for annual NOX emissions as applied to Kansas units
other than the allowance allocation provisions, and the FIP requiring
the units to participate in the trading program (as modified by the SIP
revision) remains in place. The approval is being issued as a direct
final rule without a prior proposed rule because EPA views it as
uncontroversial and does not anticipate adverse comment.
DATES: This direct final rule will be effective August 15, 2016,
without further notice, unless EPA receives adverse comment by July 29,
2016. If EPA receives adverse comment, we will publish a timely
withdrawal of the direct final rule in the Federal Register informing
the public that the rule will not take effect.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R07-
OAR-2016-0303, to https://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. EPA may publish any comment
received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points
[[Page 42257]]
you wish to make. EPA will generally not consider comments or comment
contents located outside of the primary submission (i.e., on the web,
cloud, or other file sharing system). For additional submission
methods, the full EPA public comment policy, information about CBI or
multimedia submissions, and general guidance on making effective
comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Mr. Larry Gonzalez, Air Planning and
Development Branch, Air and Waste Management Division, EPA Region 7,
11201 Renner Boulevard, Lenexa KS 66219; telephone number: (913) 551-
7041; email address: Gonzalez.larry@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' or
``our'' refer to EPA. This section provides additional information by
addressing the following:
I. What is being addressed in this document?
II. Background on CSAPR and CSAPR-Related SIP Revisions
III. Conditions for Approval of CSAPR-Related SIP Revisions
IV. Kansas's SIP Submittal and EPA's Analysis
A. Kansas's SIP Submittal
B. EPA's Analysis of Kansas' Submittal
1. Timeliness and Completeness of SIP Submittal
2. Methodology Covering All Allowances Potentially Requiring
Allocation
3. Assurance That Total Allocations Will Not Exceed the State
Budget
4. Timely Submission of State-Determined Allocations to EPA
5. No Changes to Allocations Already Submitted to EPA or
Recorded
6. No Other Substantive Changes to Federal Trading Program
Provisions
V. EPA's Action on Kansas' Submittal
I. What is being addressed in this document?
EPA is taking direct final action to approve a revision to the SIP
for Kansas concerning allocations of allowances used in the CSAPR \1\
Federal trading program for annual emissions of NOX. Large
electricity generating units in Kansas are subject to a CSAPR FIP that
requires the units to participate in the Federal CSAPR NOX
Annual Trading Program.\2\ Each of CSAPR's Federal trading programs
includes default provisions governing the allocation among
participating units of emission allowances used for compliance under
that program. CSAPR also provides a process for the submission and
approval of SIP revisions to replace EPA's default allocations with
state-determined allocations.
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\1\ Federal Implementation Plans; Interstate Transport of Fine
Particulate Matter and Ozone and Correction of SIP Approvals, 76 FR
48208 (August 8, 2011), (codified as amended at 40 CFR 52.38 and
52.39 and subparts AAAAA through DDDDD of 40 CFR part 97).
\2\ EPA has proposed to replace the terms ``Transport Rule'' and
``TR'' in the text of the Code of Federal Regulations with the
updated terms ``Cross-State Air Pollution Rule'' and ``CSAPR.'' 80
FR 75706, 75759 (December 3, 2015). Except where otherwise noted,
EPA uses the updated terms here.
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The SIP revision approved in this action incorporates into Kansas'
SIP state regulations establishing state-determined allowance
allocations to replace EPA's default allocations to Kansas units of
CSAPR NOX Annual allowances issued for the control periods
in 2017 through 2019. EPA is approving the SIP revision because it
meets the requirements of the CAA and EPA's regulations for approval of
an abbreviated SIP revision replacing EPA's default allocations of
CSAPR emission allowances with state-determined allocations. Approval
of this SIP revision does not alter any provision of the CSAPR
NOX Annual Trading Program as applied to Kansas units other
than the allowance allocation provisions, and the FIP requiring those
units to participate in the program (as modified by this SIP revision)
remains in place. Because the SIP revision addresses only the control
periods in 2017 through 2019, absent submission and approval of a
further SIP revision, allocations of CSAPR NOX Annual
allowances for control periods in 2020 and later years will be made
pursuant to the default allocation provisions.
Large electricity generating units in Kansas are also subject to an
additional CSAPR FIP requiring them to participate in the Federal CSAPR
SO2 Group 2 Trading Program. Kansas's SIP submittal does not
seek to replace the default allocations of CSAPR SO2 Group 2
allowances to Kansas units. Approval of this SIP revision concerning
another CSAPR trading program has no effect on the CSAPR SO2
Group 2 Trading Program as applied to Kansas units, and the FIP
requiring the units to participate in that program remains in place.
Section II of this document summarizes relevant aspects of the
CSAPR Federal trading programs and FIPs as well as the range of
opportunities states have to submit SIP revisions to modify or replace
the FIP requirements while continuing to rely on CSAPR's trading
programs to address the states' obligations to mitigate interstate air
pollution. Section III describes the specific conditions for approval
of such SIP revisions. Section IV contains EPA's analysis of Kansas'
SIP submittal, and section V sets forth EPA's action on the submittal.
We are publishing this direct final rule without a prior proposed
rule because we view this as a noncontroversial action and anticipate
no adverse comment. However, in the Proposed Rules section of this
Federal Register, we are publishing a separate document that will serve
as the proposed rule to approve the SIP revision if adverse comments
are received on this direct final rule. We will not institute a second
comment period on this action. Any parties interested in commenting
must do so at this time. For further information about commenting on
this rule, see the ADDRESSES section of this document. If EPA receives
adverse comment, we will publish a timely withdrawal in the Federal
Register informing the public that this direct final rule will not take
effect. We will address all public comments in any subsequent final
rule based on the proposed rule.
II. Background on CSAPR and CSAPR-Related SIP Revisions
EPA issued CSAPR in July 2011 to address the requirements of CAA
section 110(a)(2)(D)(i)(I) concerning interstate transport of air
pollution. As amended, CSAPR requires twenty-eight Eastern states to
limit their statewide emissions of SO2 and/or NOX
in order to mitigate transported air pollution unlawfully impacting
other states' ability to attain or maintain three National Ambient Air
Quality Standards (NAAQS): The 1997 ozone NAAQS, the 1997 annual fine
particulate matter (PM2.5) NAAQS, and the 2006 24-hour
PM2.5 NAAQS. The emissions limitations are defined in terms
of maximum statewide ``budgets'' for emissions of annual
SO2, annual NOX, and/or ozone-season
NOX by each covered state's large electricity generating
units. The budgets are implemented in two phases of generally
increasing stringency, with the Phase 1 budgets applying to emissions
in 2015 and 2016 and the Phase 2 budgets applying to emissions in 2017
and later years. As a mechanism for achieving compliance with the
emissions limitations, CSAPR established four Federal emissions trading
programs: A program for annual NOX emissions, a program for
ozone-season NOX emissions, and two geographically separate
programs for annual SO2 emissions. CSAPR also established up
to three FIPs applicable to the large electricity generating units in
each covered state. Each CSAPR FIP requires a state's units to
participate in one of the four CSAPR trading programs.
[[Page 42258]]
CSAPR includes provisions under which states may submit and EPA
will approve SIP revisions to modify or replace the CSAPR FIP
requirements while allowing states to continue to meet their transport-
related obligations using either CSAPR's Federal emissions trading
programs or state emissions trading programs integrated with the
Federal programs.\3\ Through such a SIP revision, a state may replace
EPA's default provisions for allocating emission allowances among the
state's units, employing any state-selected methodology to allocate or
auction the allowances, subject to timing conditions and limits on
overall allowance quantities. In the case of CSAPR's Federal trading
program for ozone-season NOX emissions (or an integrated
state trading program), a state may also expand trading program
applicability to include certain smaller electricity generating units.
However, no emissions budget increases or other substantive changes to
the trading program provisions are allowed. If a state wants to replace
CSAPR FIP requirements with SIP requirements under which the state's
units participate in a state trading program that is integrated with
and identical to the federal trading program even as to the allocation
and applicability provisions, the state may submit a SIP revision for
that purpose as well. A state whose units are subject to multiple CSAPR
FIPs and Federal trading programs may submit SIP revisions to modify or
replace the requirements under either some or all of those FIPs.
---------------------------------------------------------------------------
\3\ See 40 CFR 52.38, 52.39. States also retain the ability to
submit SIP revisions to meet their transport-related obligations
using mechanisms other than the CSAPR Federal trading programs or
integrated state trading programs.
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States can submit two basic forms of CSAPR-related SIP revisions
effective for emissions control periods in 2017 or later years.\4\
Specific conditions for approval of each form of SIP revision are set
forth in the CSAPR regulations, as described in section III below.
Under the first alternative--an ``abbreviated'' SIP revision--a state
may submit a SIP revision that upon approval replaces the default
allowance allocation and/or applicability provisions of a CSAPR Federal
trading program for the state.\5\ Approval of an abbreviated SIP
revision leaves the corresponding CSAPR FIP and all other provisions of
the relevant Federal trading program in place for the state's units.
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\4\ CSAPR also provides for a third, more streamlined form of
SIP revision that is effective only for control periods in 2016 and
is not relevant here. See Sec. 52.38(a)(3), (b)(3); Sec. 52.39(d),
(g).
\5\ Sec. 52.38(a)(4), (b)(4); Sec. 52.39(e), (h).
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Under the second alternative--a ``full'' SIP revision--a state may
submit a SIP revision that upon approval replaces a CSAPR Federal
trading program for the state with a state trading program integrated
with the Federal trading program, so long as the state trading program
is substantively identical to the Federal trading program or does not
substantively differ from the Federal trading program except as
discussed above with regard to the allowance allocation and/or
applicability provisions.\6\ For purposes of a full SIP revision, a
state may either adopt state rules with complete trading program
language, incorporate the Federal trading program language into its
state rules by reference (with appropriate conforming changes), or
employ a combination of these approaches.
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\6\ Sec. 52.38(a)(5), (b)(5); Sec. 52.39(f), (i).
---------------------------------------------------------------------------
The CSAPR regulations identify several important consequences and
limitations associated with approval of a full SIP revision. First,
upon EPA's approval of a full SIP revision as correcting the deficiency
in the state's SIP that was the basis for a particular CSAPR FIP, the
obligation to participate in the corresponding CSAPR Federal trading
program is automatically eliminated for units subject to the state's
jurisdiction without the need for a separate EPA withdrawal action, so
long as EPA's approval of the SIP is full and unconditional.\7\ Second,
approval of a full SIP revision does not terminate the obligation to
participate in the corresponding CSAPR Federal trading program for any
units located in any Indian country within the borders of the state,
and if and when a unit is located in Indian country within a state's
borders, EPA may modify the SIP approval to exclude from the SIP, and
include in the surviving CSAPR FIP instead, certain trading program
provisions that apply jointly to units in the state and to units in
Indian country within the state's borders.\8\ Finally, if at the time a
full SIP revision is approved EPA has already started recording
allocations of allowances for a given control period to a state's
units, the Federal trading program provisions authorizing EPA to
complete the process of allocating and recording allowances for that
control period to those units will continue to apply, unless EPA's
approval of the SIP revision provides otherwise.\9\
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\7\ Sec. 52.38(a)(6), (b)(6); Sec. 52.39(j).
\8\ Sec. 52.38(a)(5)(iv)-(v), (a)(6), (b)(5)(v)-(vi), (b)(6);
Sec. 52.39(f)(4)-(5), (i)(4)-(5), (j).
\9\ Sec. 52.38(a)(7), (b)(7); Sec. 52.39(k).
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Certain CSAPR Phase 2 emissions budgets have been remanded to EPA
for reconsideration.\10\ However, the CSAPR trading programs remain in
effect and all CSAPR emissions budgets likewise remain in effect
pending EPA final action to address the remands. Neither of the CSAPR
emissions budgets applicable to Kansas units has been remanded.
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\10\ EME Homer City Generation, L.P. v. EPA, 795 F.3d 118, 138
(D.C. Cir. 2015).
---------------------------------------------------------------------------
In 2015, EPA proposed to update CSAPR to address Eastern states'
interstate air pollution mitigation obligations with regard to the 2008
ozone NAAQS. Among other things, the proposed rule would establish a
FIP requiring Kansas units to participate in the CSAPR NOX
Ozone Season Trading Program and would make technical corrections and
nomenclature changes throughout the CSAPR regulations, including the
CSAPR FIPs at 40 CFR part 52 and the CSAPR Federal trading program
regulations for annual NOX, ozone-season NOX, and
SO2 emissions at 40 CFR part 97.\11\
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\11\ 80 FR 75706, 75710, 75757 (December 3, 2015).
---------------------------------------------------------------------------
III. Conditions for Approval of CSAPR-Related SIP Revisions
Each CSAPR-related abbreviated or full SIP revision must meet the
following general submittal conditions:
Timeliness and completeness of SIP submittal. If a state
wants to replace the default allowance allocation or applicability
provisions of a CSAPR Federal trading program, the complete SIP
revision must be submitted to EPA by December 1 of the year before the
deadlines described below for submitting allocation or auction amounts
to EPA for the first control period for which the state wants to
replace the default allocation and/or applicability provisions.\12\
(This SIP submission deadline is inoperative in the case of a SIP
revision that seeks only to replace a CSAPR FIP and Federal trading
program with a SIP and a substantively identical state trading program
integrated with the Federal trading program.) The SIP submittal
completeness criteria in section 2.1 of appendix V to 40 CFR part 51
also apply.
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\12\ 40 CFR 52.38(a)(4)(ii), (a)(5)(vi), (b)(4)(iii),
(b)(5)(vii); Sec. 52.39(e)(2), (f)(6), (h)(2), (i)(6).
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In addition to the general submittal conditions, a CSAPR-related
abbreviated or full SIP seeking to address the allocation or auction of
emission allowances must meet the following further conditions:
[[Page 42259]]
Methodology covering all allowances potentially requiring
allocation. For each Federal trading program addressed by a SIP
revision, the SIP revision's allowance allocation or auction
methodology must replace both the Federal program's default allocations
to existing units \13\ at 40 CFR 97.411(a), 97.511(a), 97.611(a), or
97.711(a), as applicable, and the Federal trading program's provisions
for allocating allowances from the new unit set-aside (NUSA) for the
state at 40 CFR 97.411(b)(1) and 97.412(a), 97.511(b)(1) and 97.512(a),
97.611(b)(1) and 97.612(a), or 97.711(b)(1) and 97.712(a), as
applicable.\14\ In the case of a state with Indian country within its
borders, while the SIP revision may neither alter nor assume the
Federal program's provisions for administering the Indian country NUSA
for the state, the SIP revision must include procedures addressing the
disposition of any otherwise unallocated allowances from an Indian
country NUSA that may be made available for allocation by the state
after EPA has carried out the Indian country NUSA allocation
procedures.\15\
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\13\ In the context of the approval conditions for CSAPR-related
SIP revisions, an ``existing unit'' is a unit for which EPA has
determined default allowance allocations (which could be allocations
of zero allowances) in the rulemakings establishing and amending
CSAPR. A spreadsheet showing EPA's default allocations to existing
units is posted at www.epa.gov/crossstaterule/techinfo.html.
\14\ Sec. 52.38(a)(4)(i), (a)(5)(i), (b)(4)(ii), (b)(5)(ii);
Sec. 52.39(e)(1), (f)(1), (h)(1), (i)(1).
\15\ See Sec. Sec. 97.412(b)(10)(ii), 97.512(b)(10)(ii),
97.612(b)(10)(ii), 97.712(b)(10)(ii).
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Assurance that total allocations will not exceed the state
budget. For each Federal trading program addressed by a SIP revision,
the total amount of allowances auctioned or allocated for each control
period under the SIP revision (prior to the addition by EPA of any
unallocated allowances from any Indian country NUSA for the state) may
not exceed the state's emissions budget for the control period less the
sum of the amount of any Indian country NUSA for the state for the
control period and any allowances already allocated to the state's
units for the control period and recorded by EPA.\16\ Under its SIP
revision, a state is free to not allocate allowances to some or all
potentially affected units, to allocate or auction allowances to
entities other than potentially affected units, or to allocate or
auction fewer than the maximum permissible quantity of allowances and
retire the remainder.
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\16\ Sec. 52.38(a)(4)(i)(A), (a)(5)(i)(A), (b)(4)(ii)(A),
(b)(5)(ii)(A); Sec. 52.39(e)(1)(i), (f)(1)(i), (h)(1)(i),
(i)(1)(i).
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Timely submission of state-determined allocations to EPA.
The SIP revision must require the state to submit to EPA the amounts of
any allowances allocated or auctioned to each unit for each control
period (other than allowances initially set aside in the state's
allocation or auction process and later allocated or auctioned to such
units from the set-aside amount) by the following deadlines.\17\ Note
that the submission deadlines differ for amounts allocated or auctioned
to units considered existing units for CSAPR purposes and amounts
allocated or auctioned to other units.
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\17\ Sec. 52.38(a)(4)(i)(B)-(C), (a)(5)(i)(B)-(C),
(b)(4)(ii)(B)-(C), (b)(5)(ii)(B)-(C); Sec. 52.39(e)(1)(ii)-(iii),
(f)(1)(ii)-(iii), (h)(1)(ii)-(iii), (i)(1)(ii)-(iii).
------------------------------------------------------------------------
Deadline for
Year of the submission to EPA of
Units control period allocations or
auction results
------------------------------------------------------------------------
Existing...................... 2017 and 2018.... June 1, 2016.
2019 and 2020.... June 1, 2017.
2021 and 2022.... June 1, 2018.
2023 and later June 1 of the fourth
years. year before the year
of the control
period.
Other......................... All years........ July 1 of the year of
the control period.
------------------------------------------------------------------------
No changes to allocations already submitted to EPA or
recorded. The SIP revision must not provide for any change to the
amounts of allowances allocated or auctioned to any unit after those
amounts are submitted to EPA or any change to any allowance allocation
determined and recorded by EPA under the Federal trading program
regulations.\18\
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\18\ Sec. 52.38(a)(4)(i)(D), (a)(5)(i)(D), (b)(4)(ii)(D),
(b)(5)(ii)(D); Sec. 52.39(e)(1)(iv), (f)(1)(iv), (h)(1)(iv),
(i)(1)(iv).
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No other substantive changes to Federal trading program
provisions. The SIP revision may not substantively change any other
trading program provisions, except in the case of a SIP revision that
also expands program applicability as described below.\19\ Any new
definitions adopted in the SIP revision (in addition to the Federal
trading program's definitions) may apply only for purposes of the SIP
revision's allocation or auction provisions.\20\
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\19\ Sec. 52.38(a)(4), (a)(5), (b)(4), (b)(5); Sec. 52.39(e),
(f), (h), (i).
\20\ Sec. 52.38(a)(4)(i), (a)(5)(ii), (b)(4)(ii), (b)(5)(iii);
Sec. 52.39(e)(1), (f)(2), (h)(1), (i)(2).
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In addition to the general submittal conditions, a CSAPR-related
abbreviated or full SIP revision seeking to expand applicability under
the CSAPR NOX Ozone Season Trading Program (or an integrated
state trading program) must meet the following further conditions:
Only electricity generating units with nameplate capacity
of at least 15 MWe. The SIP revision may expand applicability only to
additional fossil fuel-fired boilers or combustion turbines serving
generators producing electricity for sale, and only by lowering the
generator nameplate capacity threshold used to determine whether a
particular boiler or combustion turbine serving a particular generator
is a potentially affected unit. The nameplate capacity threshold
adopted in the SIP revision may not be less than 15 MWe.\21\
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\21\ Sec. 52.38(b)(4)(i), (b)(5)(i).
---------------------------------------------------------------------------
No other substantive changes to Federal trading program
provisions. The SIP revision may not substantively change any other
trading program provisions, except in the case of a SIP revision that
also addresses the allocation or auction of emission allowances as
described above.\22\
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\22\ Sec. 52.38(b)(4), (b)(5).
---------------------------------------------------------------------------
In addition to the general submittal conditions and the other
applicable conditions described above, a CSAPR-related full SIP
revision must meet the following further conditions:
Complete, substantively identical trading program
provisions. The SIP revision must adopt complete state trading program
regulations substantively identical to the complete Federal trading
program regulations at 40 CFR 97.402 through 97.435, 97.502 through
97.535, 97.602 through 97.635, or 97.702 through 97.735, as applicable,
except as described above in the case of a SIP revision that seeks to
replace the default allowance allocation and/or applicability
provisions.
Only non-substantive substitutions for the term ``State.''
The SIP revision may substitute the name of the state for the term
``State'' as used in the Federal trading program regulations, but only
to the extent that EPA determines that the substitutions do not
substantively
[[Page 42260]]
change the trading program regulations.\23\
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\23\ Sec. 52.38(a)(5)(iii), (b)(5)(iv); Sec. 52.39(f)(3),
(i)(3).
---------------------------------------------------------------------------
Exclusion of provisions addressing units in Indian
country. The SIP revision may not include references to or impose
requirements on any unit in any Indian country within the state's
borders and must not include the Federal trading program provisions
governing allocation of allowances from any Indian country NUSA for the
state.\24\
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\24\ Sec. 52.38(a)(5)(iv), (b)(5)(v); Sec. 52.39(f)(4),
(i)(4).
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IV. Kansas's SIP Submittal and EPA's Analysis
A. Kansas's SIP Submittal
In the CSAPR rulemaking, EPA determined that air pollution
transported from Kansas unlawfully affected other states' ability to
attain or maintain the 2006 24-hour PM2.5 NAAQS.\25\ Kansas
units meeting the CSAPR applicability criteria are consequently subject
to CSAPR FIPs that require participation in the CSAPR NOX
Annual Trading Program and the CSAPR SO2 Group 2 Trading
Program.\26\
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\25\ 76 FR 48208, 48213 (August 8, 2011).
\26\ 40 CFR 52.38(a)(2); Sec. 52.39(c); Sec. 52.882(a); Sec.
52.883.
---------------------------------------------------------------------------
On December 1, 2015, Kansas submitted to EPA an abbreviated SIP
revision that, if approved, would replace the default allowance
allocation provisions of the CSAPR NOX Annual Trading
Program for the state's EGUs for the control periods in 2017 through
2019 with provisions establishing state-determined allocations for
those control periods but that would leave the corresponding CSAPR FIP
and all other provisions of that trading program in place. The SIP
submittal generally consists of a duly adopted state rule, K.A.R. 28-
19-274 (Nitrogen oxides; allocations), which in turn adopts by
reference a document entitled ``TR NOX annual allowance
allocations for 2017, 2018, and 2019,'' dated July 17, 2015. The latter
document contains tables establishing fixed amounts of allowances to be
allocated to specified Kansas electricity generating units under the
provisions of the state rule. For each of the years 2017, 2018, and
2019, there is a table with allocations of all allowances in the Kansas
budget other than allowances in the Indian country NUSA for Kansas. For
each of those years there is a second table with potential allocations
to the same units of otherwise unallocated allowances from the Indian
country NUSA for Kansas if all of those allowances should be made
available by EPA for state allocation. The rule also includes
provisions for computing potential allocations to the same units of
otherwise unallocated allowances from the Indian country NUSA for
Kansas if some but not all of those allowances should be made available
by EPA for state allocation. Finally, the rule includes provisions
defining several terms used either in the rule's allocation provisions
or in other definitions.
The SIP revision was submitted to EPA by a letter from the Kansas
Secretary of Health and Environment acting as the designated
representative of the Governor of Kansas. The letter describes steps
taken by Kansas to provide public notice prior to adoption of the state
rule. The letter also indicates that paragraphs 28-19-274(a)(2)(A) and
(B) of the Kansas rule, which contain definitions of certain terms
differing from the definitions of the same terms in the Federal trading
program regulations, are excluded from the SIP submittal.
EPA has previously approved a separate Kansas SIP revision
replacing the default allowance allocation provisions of the CSAPR
NOX Annual Trading Program for Kansas existing units for the
control period in 2016.\27\ At this time, Kansas has not submitted any
SIP revision to modify or replace the CSAPR FIP that requires the
state's units to participate in the CSAPR SO2 Group 2
Trading Program.
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\27\ 80 FR 50789 (August 21, 2015).
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B. EPA's Analysis of Kansas's Submittal
1. Timeliness and Completeness of SIP Submittal
Kansas' SIP revision seeks to establish state-determined
allocations of CSAPR NOX Annual allowances for the control
periods in 2017, 2018, and 2019. Under 40 CFR 52.38(a)(4)(i)(B), the
deadline for submission of state-determined allocations for the 2017
and 2018 control periods is June 1, 2016, which under Sec.
52.38(a)(4)(ii) makes December 1, 2015 the deadline for submission to
EPA of a complete SIP revision establishing state-determined
allocations for those control periods. Kansas submitted its SIP
revision to EPA by a letter dated and delivered electronically on
December 1, 2015, and EPA has determined that the submittal complies
with the applicable minimum completeness criteria in section 2.1 of
appendix V to 40 CFR part 51. Because Kansas's SIP revision was timely
submitted and meets the applicable completeness criteria, it meets the
condition under 40 CFR 52.38(a)(4)(ii) for timely submission of a
complete SIP revision.
2. Methodology Covering All Allowances Potentially Requiring Allocation
Paragraph 28-19-274(c) of the Kansas rule provides that the
allowance allocation methodology adopted by Kansas in the SIP revision
replaces the provisions of 40 CFR 97.411(a), thereby addressing all
allowances that under the default allocation provisions for the Federal
trading program would be allocated to units considered existing units
for CSAPR purposes (prior to allocation of any otherwise unallocated
allowances from the NUSA or Indian country NUSA for Kansas). The same
Kansas rule paragraph also provides that the state's allocation
methodology replaces the provisions of 40 CFR 97.411(b)(1) and
97.412(a), thereby addressing allocation of allowances in the NUSA
established for Kansas under the Federal trading program. In addition,
paragraphs 28-19-274(d) and (e) of the Kansas rule provide procedures
addressing any otherwise unallocated allowances from the Indian country
NUSA for Kansas that may be made available for allocation by the state
after EPA has carried out the Indian country NUSA allocation
procedures. Collectively, the allocation provisions in the Kansas rule
therefore enable Kansas' SIP revision to meet the condition under 40
CFR 52.38(a)(4)(i) that the state's allocation or auction methodology
must cover all allowances potentially requiring allocation by the
state.
3. Assurance That Total Allocations Will Not Exceed the State Budget
Paragraph 28-19-274(d) of the Kansas rule provides for allowance
allocations to be made in fixed amounts set forth in tables adopted by
reference into the state rules. For each of the three control periods
for which the rule allocates allowances, there is a table providing
allocations for the allowances that absent this SIP revision would be
allocated pursuant to 40 CFR 97.411(a), 97.411(b)(1), and 97.412(a).
For each of the control periods, the sum of the fixed amounts allocated
according to these tables is 31,323 allowances, which is equal to the
Kansas budget for the control period (31,354 tons) less the amount of
the Indian country NUSA for Kansas (31 tons).\28\ EPA has not yet
allocated or recorded CSAPR allowances for the 2017 through 2019
control periods. The allocation methodology in Kansas's SIP revision
therefore meets the condition under 40 CFR 52.38(a)(4)(i)(A) that the
total
[[Page 42261]]
amount of allowances allocated under the SIP revision (before the
addition of any otherwise unallocated allowances from an Indian country
NUSA) may not exceed the state's budget for the control period less the
amount of the Indian country NUSA for the state and any allowances
already allocated and recorded by EPA.
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\28\ See 40 CFR 97.410(a)(6)(iv), (a)(6)(vi).
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While the Kansas rule also has provisions providing potential
allocations of allowances from the Indian country NUSA for Kansas,
under paragraph 28-19-274(b) of the Kansas rule the only allowances
available for allocation under those provisions are otherwise
unallocated allowances that EPA has made available from the Indian
country NUSA for state allocation after having carried out the Indian
country NUSA allocation procedures. The total of the allowances
allocated under the SIP revision and any allowances allocated by EPA
from the Indian country NUSA for Kansas therefore will not exceed the
state budget, consistent with the purpose of 40 CFR 52.38(a)(4)(i)(A).
4. Timely Submission of State-Determined Allocations to EPA
The state-determined allowance allocations established by the
Kansas rule for each of the three control periods covered by the rule
are included in tables that have been adopted by reference into the
state rule and that were provided to EPA as part of the SIP submittal
on December 1, 2015. As noted above, in the case of a SIP revision
seeking to allocate allowances starting with the 2017 control period,
the earliest deadline for submission to EPA of the state-determined
allocations is June 1, 2016. Kansas' SIP revision therefore meets the
conditions under 40 CFR 52.38(a)(4)(i)(B) and (C) requiring that the
SIP revision provide for submission of state-determined allowance
allocations to EPA by the deadlines specified in those provisions.
5. No Changes to Allocations Already Submitted to EPA or Recorded
The Kansas rule includes no provision allowing alteration of
allocations after the allocation amounts have been provided to EPA and
no provision allowing alteration of any allocations made and recorded
by EPA under the Federal trading program regulations, thereby meeting
the condition under 40 CFR 52.38(a)(4)(i)(D).
6. No Other Substantive Changes to Federal Trading Program Provisions
Besides the provisions addressing allowance allocations discussed
above, the Kansas rule includes a number of provisions defining terms
used either in the rule's allocation provisions or in other
definitions. In paragraph 28-19-274(a)(1), the rule adopts by reference
several terms defined in 40 CFR 97.402, and in paragraph 28-19-274(b),
the rule defines a new term ``Indian country new unit set-aside
allowance'' that is used only in the Kansas rule for purposes of
allowance allocations. These provisions do not make substantive changes
to the Federal trading program provisions.\29\
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\29\ EPA has proposed to make certain technical corrections to
the CSAPR FIP and Federal trading program regulations in order to
more accurately reflect EPA's intent as described in the CSAPR
rulemaking and has also proposed to replace ``TR'' with ``CSAPR''
throughout the regulations (for example, ``TR NOX Annual
unit'' would become ``CSAPR NOX Annual unit''). See 80 FR
75706, 75758. Because the proposed technical corrections merely
clarify and do not change EPA's interpretations, where the proposed
corrections would apply to a provision incorporated by reference in
the Kansas rule, EPA would interpret the Kansas rule as reflecting
the corrections. Further, EPA anticipates that if the proposed
nomenclature updates are finalized, the final CSAPR Federal
regulations would explicitly provide that terms that include
``CSAPR'' encompass otherwise identical terms in approved SIP
revisions that include ``TR''.
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Paragraphs 28-19-274(a)(2)(A) and (B) of the Kansas rule adopt
definitions of ``administrator'', ``State'', and ``permitting
authority'' that substantively differ from the definitions of these
terms in the Federal trading program regulations. While these terms are
not used directly in the Kansas rule, they are used in the Federal
trading program definitions of some of the other terms that are adopted
by reference under paragraph 28-19-274(a)(1). Inclusion of the Kansas
rule's definitions of ``administrator'', ``State'', and ``permitting
authority'' in the SIP revision therefore would cause the meanings of
those other adopted terms as used in the Kansas rule to substantively
differ from the meanings of the same terms as used in the Federal
trading program regulations. After being advised of these differences
by EPA, Kansas elected to exclude the provisions of paragraphs 28-19-
274(a)(2)(A) and (B) of the Kansas rule from the SIP revision, as the
state's letter submitting the SIP revision makes clear. (Without the
excluded provisions, the rule remains fully functional for its intended
purpose of allocating CSAPR allowances among the state's units.)
Considering Kansas' SIP revision without the excluded rule provisions,
EPA has determined that the SIP revision meets the condition under 40
CFR 52.38(a)(4) of making no substantive changes to the Federal trading
program regulations beyond the provisions addressing allowance
allocations.
V. EPA's Action on Kansas' Submittal
EPA is taking direct final action to approve the revision to
Kansas' SIP submitted on December 1, 2015 concerning allocations to
Kansas units of CSAPR NOX Annual allowances for the control
periods in 2017, 2018, and 2019. This SIP revision adopts into the SIP
the rule codified in Kansas' regulations at K.A.R. 28-19-274 excluding
paragraphs 28-19-274(a)(2)(A) and (B). The Kansas rule in turn
incorporates a document entitled ``TR NOX annual allowance
allocations for 2017, 2018, and 2019,'' dated July 17, 2015, which
contains tables setting forth state-determined allowance allocations to
individual Kansas units. Following this approval, allocations of these
allowances will be made according to the provisions of Kansas' SIP
instead of CSAPR's default allocation provisions at 40 CFR 97.411(a),
97.411(b)(1), and 97.412(a). Approval of this SIP revision does not
alter any provision of the Federal CSAPR NOX Annual Trading
Program as applied to Kansas units other than the allowance allocation
provisions, and the FIP requiring the units to participate in that
program (as modified by this SIP revision) remains in place. EPA is
approving the SIP revision because it meets the requirements of the CAA
and EPA's regulations for approval of an abbreviated SIP revision
replacing EPA's default allocations of CSAPR emission allowances with
state-determined allocations, as discussed in section IV above. Because
the SIP revision addresses only the control periods in 2017 through
2019, absent submission and approval of a further SIP revision,
allocations of CSAPR NOX Annual allowances for control
periods in 2020 and later years will be made pursuant to the default
allocation provisions.
Large electricity generating units in Kansas are also subject to an
additional CSAPR FIP requiring them to participate in the Federal CSAPR
SO2 Group 2 Trading Program. Kansas's SIP submittal does not
seek to replace the default allocations of CSAPR SO2 Group 2
allowances to Kansas units. Approval of this SIP revision concerning
another CSAPR trading program has no effect on the Federal CSAPR
SO2 Group 2 Trading Program as applied to Kansas units, and
the FIP requiring the units to participate in that program remains in
place.
Incorporation by Reference
In this rule, EPA is finalizing regulatory text that includes
incorporation by reference. In
[[Page 42262]]
accordance with requirements of 1 CFR 51.5, EPA is finalizing the
incorporation by reference of the Kansas Cross-State Air Pollution
Regulations described in the direct final amendments to 40 CFR part 52
set forth below. EPA has made, and will continue to make, these
documents generally available electronically through
www.regulations.gov and at the appropriate EPA office (see the
ADDRESSES section of this preamble for more information).
Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
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);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because this rulemaking does not involve technical standards; and
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 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land or
in any other area where EPA or an Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of Indian country, the rule does
not have tribal implications and will not impose substantial direct
costs on tribal governments or preempt tribal law as specified by
Executive Order 13175 (65 FR 67249, November 9, 2000).
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).
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 August 29, 2016. 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, Administrative practice and procedure,
Air pollution control, Incorporation by reference, Intergovernmental
relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides.
Dated: June 16, 2016.
Mark Hague,
Regional Administrator, Region 7.
For the reasons stated in the preamble, EPA amends 40 CFR part 52
as set forth below:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart R--Kansas
0
2. Amend Sec. 52.870(c), by adding entry 28-19-274, in numerical
order, under the subheading entitled ``General Provisions'' to read as
follows:
Sec. 52.870 Identification of plan.
* * * * *
(c) * * *
[[Page 42263]]
EPA-Approved Kansas Regulations
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State
Kansas citation Title effective date EPA approval date Explanation
----------------------------------------------------------------------------------------------------------------
Kansas Department of Health and Environment Ambient Air Quality Standards and Air Pollution Control
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
General Provisions
----------------------------------------------------------------------------------------------------------------
* * * * * * *
K.A.R. 28-19-274............... Nitrogen Oxide 11/6/15 6/29/16 and [Insert Approval of EGU-
allocations. Federal Register specific NOX
citation]. allocations does
not include KAR 28-
19-274(a)(2)(A)
and (a)(2)(B).
* * * * * * *
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* * * * *
[FR Doc. 2016-15040 Filed 6-28-16; 8:45 am]
BILLING CODE 6560-50-P
