Rule2024-17182
Air Plan Approval; Kansas; Regional Haze
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 7, 2024
Effective
September 6, 2024
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is taking final action to disapprove a revision to Kansas's State Implementation Plan (SIP) submitted on July 28, 2021, intended to satisfy applicable requirements under the Clean Air Act (CAA) and EPA's Regional Haze Rule (RHR) for the program's second planning period. As required by the CAA, the RHR calls for State and Federal agencies to work together to improve visibility, including by reducing or eliminating regional haze, in 156 national parks and wilderness areas. The rule requires the States, in coordination with the EPA, the National Park Service (NPS), U.S. Fish and Wildlife Service (FWS), the U.S. Forest Service (FS), and other interested parties, to develop and implement air quality protection plans in which States revise their long-term strategies (LTS) for making reasonable progress towards the national goal of preventing any future, and remedying any existing, anthropogenic impairment of visibility in these mandatory Class I Federal Areas. Disapproval does not trigger imposition of mandatory sanctions. The effective date of this action does trigger an obligation for the EPA to issue a Federal Implementation Plan (FIP) within two years.
Full Text
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<title>Federal Register, Volume 89 Issue 152 (Wednesday, August 7, 2024)</title>
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[Federal Register Volume 89, Number 152 (Wednesday, August 7, 2024)]
[Rules and Regulations]
[Pages 64373-64383]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-17182]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R07-OAR-2023-0582; FRL-11576-02-R7]
Air Plan Approval; Kansas; Regional Haze
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final action.
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SUMMARY: The Environmental Protection Agency (EPA) is taking final
action to disapprove a revision to Kansas's State Implementation Plan
(SIP) submitted on July 28, 2021, intended to satisfy applicable
requirements under the Clean Air Act (CAA) and EPA's Regional Haze Rule
(RHR) for the program's second planning period. As required by the CAA,
the RHR calls for State and Federal agencies to work together to
improve visibility, including by reducing or eliminating regional haze,
in 156 national parks and wilderness areas. The rule requires the
States, in coordination with the EPA, the National Park Service (NPS),
U.S. Fish and Wildlife Service (FWS), the U.S. Forest Service (FS), and
other interested parties, to develop and implement air quality
protection plans in which States revise their long-term strategies
(LTS) for making reasonable progress towards the national goal of
preventing any future, and remedying any existing, anthropogenic
impairment of visibility in these mandatory Class I Federal Areas.
Disapproval does not trigger imposition of mandatory sanctions. The
effective date of this action does trigger an obligation for the EPA to
issue a Federal Implementation Plan (FIP) within two years.
DATES: This final action is effective on September 6, 2024.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R07-OAR-2023-0582. All documents in the docket are
listed on the <a href="https://www.regulations.gov">https://www.regulations.gov</a> website. Although listed in
the index, some information may not be publicly available, i.e., CBI or
other information whose disclosure is restricted by statute. Certain
other material, such as copyrighted material, is not placed on the
internet and will be publicly available only in hard copy form.
Publicly available docket materials are available through <a href="https://www.regulations.gov">https://www.regulations.gov</a> or please contact the person identified in the FOR
FURTHER INFORMATION CONTACT section for additional information.
FOR FURTHER INFORMATION CONTACT: Jed D. Wolkins Environmental
Protection Agency, Region 7 Office, Air Quality Planning Branch, 11201
Renner Boulevard, Lenexa, Kansas 66219; telephone number: (913) 551-
7588; email address: <a href="/cdn-cgi/l/email-protection#ccbba3a0a7a5a2bfe2a6a9a88ca9bcade2aba3ba"><span class="__cf_email__" data-cfemail="ec9b83808785829fc2868988ac899c8dc28b839a">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and
``our'' refer to the EPA.
Table of Contents
I. What is being addressed in this document?
II. Background
III. The EPA's Response to Comments
A. Conservation Groups Comments and Responses
B. KDHE Comments and Responses
C. Kansas Utilities' Comments and Responses
IV. What action is the EPA taking?
V. Statutory and Executive Order Reviews
I. What is being addressed in this document?
The EPA is disapproving Kansas's regional haze plan for the second
planning period. As required by section 169A of the CAA, the Federal
RHR calls for State and Federal agencies to work together to improve
visibility in 156 national parks and wilderness areas. The rule
requires the States, in coordination with the EPA, the NPS, FWS, the
FS, and other interested parties, to develop and implement air quality
protection plans to reduce the pollution that causes visibility
impairment in mandatory Class I Federal areas. Visibility impairing
pollutants include fine and coarse particulate matter (PM) (e.g.,
sulfates, nitrates, organic carbon, elemental carbon, and soil dust)
and their precursors (e.g., sulfur dioxide (SO<INF>2</INF>), oxides of
nitrogen (NO<INF>X</INF>), and, in some cases, volatile organic
compounds (VOC) and ammonia (NH<INF>3</INF>)). As discussed in further
detail in our Notice of Proposed Rulemaking (NPRM) and in this
document, the EPA finds that Kansas submitted a regional haze SIP
revision that does not meet the regional haze requirements for the
second planning period. The State's submission and the NPRM can be
found in the docket for this action.
II. Background
On July 28, 2021, Kansas submitted a revision to its SIP to address
regional haze for the second implementation period. Kansas made this
submission in order to satisfy the requirements of the CAA's regional
haze program pursuant to CAA sections 169A and 169B and 40 Code of
Federal Regulations (CFR) 51.308. The State's submission met the public
notice requirements in accordance with 40 CFR 51.102. The submission
also satisfied the completeness criteria of 40 CFR part 51, appendix V.
The State provided public notice on its SIP revision from May 27, 2021,
to June 28, 2021, and received comments from five parties, including
the EPA. Kansas made some changes to its SIP revision based on some of
the public comments. However, Kansas disagreed with most of the
comments pointing out flaws in its SIP revision, and the State made no
changes based on those comments.
On January 2, 2024 (89 FR 178), the EPA published the NPRM
proposing a
[[Page 64374]]
disapproval of Kansas's July 28, 2021 SIP submission for not satisfying
the regional haze requirements for the second planning period contained
in the CAA and 40 CFR 51.308. The EPA is now determining that the
Kansas SIP revision for the second RHR planning period does not meet
the applicable statutory and regulatory requirements in CAA section
169A and 40 CFR 51.308 and is thus disapproving Kansas's submission.
III. The EPA's Response to Comments
The purpose of the proposed rulemaking was to take public comment
on the EPA's intent to disapprove Kansas's July 28, 2021 SIP submission
because it does not satisfy regional haze requirements for the second
planning period. In the NPRM, the EPA proposed to disapprove the
submission for, inter alia, failing to consider the four statutorily
required factors in CAA section 169A for developing the State's long-
term strategy (LTS).\1\ The public comment period on the EPA's proposed
rule opened January 2, 2024, the date of its publication in the Federal
Register, and closed on February 1, 2024. During this period, the EPA
received three comment letters: (1) collective comments from the
National Parks Conservation Association, Sierra Club, and the Coalition
to Protect America's National Parks (collectively referred to as ``the
Conservation Groups'' throughout this document); (2) comments from the
Kansas Department of Health and Environment (KDHE); and (3) collective
comments from the Kansas City Board of Public Utilities--Unified
Government of Wyandotte County/Kansas City, Kansas (BPU), Evergy, Inc
(Evergy), and Sunflower Electric Power Corporation (Sunflower)
(collectively referred to as ``the Kansas Utilities'' throughout this
document). All the public comments are available in the docket for this
final action via Docket ID Number EPA-R07-OAR-2023-0582 on the <a href="https://www.regulations.gov">https://www.regulations.gov</a> website.
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\1\ For more information on the RHR requirements, specifically
the LTS requirements, see our NPRM in the docket for this action.
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In the rest of this section, the EPA has summarized and provided
responses to the adverse comments received on the NPRM. No response is
necessary for the comments received in support of the NPRM or the
comments that were not directly related to the NPRM. After carefully
considering the comments received, the EPA is finalizing its
disapproval of the Kansas SIP submission for the RHR second planning
period.
A. Conservation Groups Comments and Responses
Conservation Groups Comment 1: The Conservation Groups stated that
executive orders, action plans, and commitments direct the Agency to
consider environmental justice in Agency actions. The comment noted
that the same pollutants that affect scenic views at national parks and
wilderness areas also cause significant public health impacts.
The Conservation Groups commented that the EPA ignores the
environmental justice impacts of our action on Kansas's SIP revision.
The commenters acknowledged that requiring Kansas to correct the
deficiencies in the SIP revision may result in the State identifying
new emission control measures to reduce pollution that negatively
impacts low-income communities and communities of color. The commenters
then provided information from the EPA's EJScreen tool to state that
there are overburdened communities exposed to pollution near some large
stationary sources, including Kansas City-BPU's Nearman Creek Power
Station, the Jeffrey Energy Center, and the Lawrence Energy Center. The
Conservation Groups stated that the EPA must analyze the potential
disparate impacts or environmental justice benefits of its action on
Kansas's SIP revision.
Response to Conservation Groups Comment 1: The EPA disagrees with
this comment but acknowledges the EJScreen information provided by the
commenters. The CAA does not explicitly address considerations of
environmental justice and neither do the regulatory requirements of the
second planning period in 40 CFR 51.308(f), (g)(1) through (5), and
(i). As explained in ``EPA Legal Tools to Advance Environmental
Justice,'' \2\ the CAA provides States with the discretion to consider
environmental justice in developing rules and measures related to
regional haze. While a State may consider environmental justice under
the reasonable progress factors, neither the statute nor the
regulations require States to conduct an environmental justice analysis
as a condition of the EPA approving a SIP revision. Furthermore, the
CAA and the RHR neither prohibit nor require such an evaluation of
environmental justice with regard to a regional haze SIP revision. The
EPA is not identifying environmental justice as a basis for its
decision to disapprove Kansas's SIP revision.
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\2\ See EPA Legal Tools to Advance Environmental Justice. p. 35-
36 <a href="https://www.epa.gov/system/files/documents/2022-05/EJ%20Legal%20Tools%20May%202022%20FINAL.pdf">https://www.epa.gov/system/files/documents/2022-05/EJ%20Legal%20Tools%20May%202022%20FINAL.pdf</a>. The EPA Office of
General Counsel (May 2022).
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The Conservation Group commenters provided additional information
from multiple EJ Screen analyses. Without agreeing with the particular
relevance or accuracy of this information, the EPA acknowledges the EJ
Screen information provided as part of the comment, which identifies
certain demographic and environmental information regarding communities
near the Kansas City-BPU's Nearman Creek Power Station, the Jeffrey
Energy Center, and the Lawrence Energy Center. As discussed in the NPRM
and in this document, the EPA has evaluated Kansas's SIP submission
against the statutory and regulatory regional haze requirements and
determined that it has not satisfied those minimum requirements.
B. KDHE Comments and Responses
KDHE Comment 1: KDHE commented that Kansas adopted the LTS the
State previously set out in its regional haze SIP revision for the
first implementation period (2011 SIP), including enforceable emission
limitations, compliance standards, and other measures that are
necessary to make reasonable progress toward reducing visibility
impairment at nearby Class I areas. The commenter suggested Kansas
provided substantial data in support of this decision.
KDHE stated that per 40 CFR 51.308(f)(2), the 2021 SIP's LTS
evaluated whether any emission reductions measures were ``necessary to
make reasonable progress'' and determined no additional measures were
necessary. KDHE stated that the CenSARA Area of Influence (AOI) results
show that for the 20% most impaired days in base year 2016, no Kansas
facility had an individual impact greater than 0.84% (nitrate and
sulfate impacts combined) at any of the Class I areas studied. KDHE
maintained that 0.84% is not a significant level of visibility impact.
KDHE asserted that neither the EPA nor federal land manager (FLM) staff
criticized the use of combined nitrates and sulfates, and Kansas was
only notified of the EPA's preference to separate nitrates and sulfates
in comments during the public comment period.
Response to KDHE Comment 1: The EPA disagrees with the commenter's
statements that KDHE conducted an analysis that considered the four
statutory factors or that meets regulatory requirements of 40 CFR
51.308(f) to determine what emission reduction measures are necessary
to make reasonable progress in the second planning period. The EPA also
disagrees
[[Page 64375]]
with the commenter's statement that KDHE's reliance on the CenSARA AOI
results was appropriate, as this reliance resulted in KDHE producing an
analysis that failed to consider the statutory and regulatory
requirements. Finally, the EPA acknowledges the commenter's statement
that the EPA did not provide feedback criticizing the use of combined
nitrates and sulfates' impact on source selection criteria prior to
Kansas's formal public comment period, but we do not agree that it has
any bearing on the EPA's disapproval of the SIP revision.
As explained in the NPRM, the State must evaluate and determine the
emission reduction measures that are necessary to make reasonable
progress by considering the four statutory factors.\3\ As part of its
reasonable progress determinations for the second planning period, the
State must describe the criteria used to determine which sources or
group of sources were evaluated (i.e., subjected to four-factor
analysis) for the second implementation period and how the four factors
were taken into consideration in selecting the emission reduction
measures for inclusion in the LTS. 40 CFR 51.308(f)(2)(i). Since Kansas
did not select sources, or groups of sources, for a four-factor
analysis, it did not meet this requirement in developing a LTS for the
second planning period.
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\3\ The amount of progress that is ``reasonable progress'' is
based on applying the four statutory factors in CAA section
169A(g)(1) in an evaluation of potential control options for sources
of visibility impairing pollutants, which is referred to as a
``four-factor'' analysis. The outcome of that analysis is the
emission reduction measures that a particular source or group of
sources needs to implement in order to make reasonable progress
towards the national visibility goal. See 40 CFR 51.308(f)(2)(i).
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The 1999 RHR established an iterative planning process that
requires States that impact visibility at Class I areas to periodically
submit SIP revisions to address such impairment. 64 FR 35714 (1999);
CAA section 169A(b)(2). While the 1999 RHR outlined the regional haze
requirements for the first planning period, the EPA revised the RHR in
2017 to establish the regional haze requirements for the second
planning period. 82 FR 3078 (2017). For example, the LTS requirements
for the first planning period are laid out in 40 CFR 51.308(d)(3), and
the LTS requirements for the second planning period are laid out in 40
CFR 51.308(f)(2). This therefore necessitates separate analyses in line
with the regulatory language dictating the requirements for the
development of each planning period's LTS.\4\ In its SIP revision,
Kansas included information on the emissions impacts of numerous
sources on the Hercules Glades Wilderness Area, the Salt Creek
Wilderness Area, the Upper Buffalo Wilderness Area, the Wheeler Peak
Wilderness Area, the White Mountain Wilderness Area, and the Wichita
Mountains National Wildlife Reserve, but did not select any sources for
evaluation, did not conduct a four-factor analysis, and did not analyze
possible efficiency improvements for sources' existing measures during
this planning period. Thus, Kansas did not follow the regulatory
requirements as outlined in 40 CFR 51.308(f). As stated in the NPRM,
Kansas failed to consider the four statutory factors for any sources,
thereby not providing the required analysis to support a conclusion
that no additional measures are necessary for reasonable progress in
its LTS for the second planning period.
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\4\ CAA section 169A(b)(2)(B) requires States to include in
their SIP submissions a long-term (10-15 year) strategy for making
reasonable progress toward meeting the national goal of preventing
future, and remedying existing, visibility impairment in Class I
areas.
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Kansas also argues that the SO<INF>2</INF> reductions achieved by
Kansas sources during the first planning period make Kansas's
contribution to impairment of Class I areas insignificant in comparison
to other States. The EPA acknowledges that Kansas made significant
reductions in SO<INF>2</INF> emissions in the first planning period and
that surrounding States may have a larger total of SO<INF>2</INF>
emissions, but neither the RHR nor the CAA allow a State to not
evaluate sources or consider the four factors in reliance on its
previous planning period reductions or due to higher emissions in other
States.\5\
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\5\ 64 FR 35721 (1999) ``EPA has concluded . . . that all States
contain sources whose emissions are reasonably anticipated to
contribute to regional haze in a Class I area and, therefore, must
submit regional haze SIPs.''
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KDHE's reliance on the CenSARA AOI results to determine reasonable
progress is misplaced. CAA section 169A(g)(1) outlines that ``in
determining reasonable progress, there shall be taken into
consideration the costs of compliance, the time necessary for
compliance, and the energy and non-air quality environmental impacts of
compliance, and the remaining useful life of any existing source
subject to such requirements.'' Moreover, the RHR outlines that in
order to evaluate and determine the emission reduction measures that
are necessary to make reasonable progress, States must consider ``the
costs of compliance, the time necessary for compliance, the energy and
non-air quality environmental impacts of compliance, and the remaining
useful life of any potentially affected anthropogenic source of
visibility impairment.'' 40 CFR 51.308(f)(2)(i). The individual impact
of a State's sources on the Class I area and the significance of
visibility impact should not undermine the role of the four-factor
analysis when determining reasonable progress in accordance with the
regulations.\6\ Therefore, the EPA cannot approve Kansas's SIP
submission because it did not meet the statutory and regulatory
requirements.
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\6\ ``Under the RHR, each State has an obligation to submit a
long-term strategy that addresses the regional haze visibility
impairment resulting from emissions from within that State. 40 CFR
51.308(f)(2). This obligation is not discharged simply because
another State's contributions to visibility impairment may be
greater.'' Clarifications Regarding Regional Haze State
Implementation Plans for the Second Implementation Period, p. 3
<a href="https://www.epa.gov/system/files/documents/2021-07/clarifications-regarding-regional-haze-state-implementation-plans-for-the-second-implementation-period.pdf">https://www.epa.gov/system/files/documents/2021-07/clarifications-regarding-regional-haze-state-implementation-plans-for-the-second-implementation-period.pdf</a>. The EPA Office of Air Quality Planning
and Standards, Research Triangle Park (July 8, 2021) (``2021
Clarifications Memo'').
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While the EPA cannot speak for the FLMs as to why they did not
address the use of combined nitrates and sulfates, the EPA choose to
not address this issue in its initial comments to Kansas on the
proposed SIP revision during early engagement (i.e., prior to Kansas's
formal SIP submittal). Rather the EPA choose to discuss the most
glaring issue that would prevent approval, which was the failure to
select sources for four-factor analysis or provide a reasoned
explanation for why sources were not selected. When Kansas declined to
amend its SIP revision following the EPA's comments, we were compelled
to address the choice to combine nitrates and sulfates, specifically
when Kansas claimed it did not need to select sources based upon other
States' contributions to regional haze and the emission reductions
achieved during the first planning period.\7\ While we could have made
this comment in early engagement, we did make it during KDHE's public
comment period prior to the SIP revision being submitted to the EPA.
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\7\ Applying a combined sulfate and nitrate impact may exclude
sources whose only or main impact may be from a sulfate or nitrate.
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Kansas did not meet the statutory and regulatory requirements for
the second planning period SIP revision, and therefore, the EPA cannot
approve Kansas's SIP submission.
KDHE Comment 2: KDHE commented that it utilized a threshold
methodology for selection of sources that reasonably considers the
actual visibility impact and expectations for reasonable progress
consistent with the CAA. KDHE stated that the EPA has failed to provide
any quantifiable threshold for visibility impacts on Class I areas.
KDHE
[[Page 64376]]
proposed that < 1.0% visibility impact is not significant impairment of
visibility and does not warrant four-factor evaluation. KDHE contended
that a significance threshold of 1.0% is not unreasonable and is very
conservative, considering the large universe of Title V sources being
analyzed using the AOI modeling method.
KDHE stated the language of CAA section 169A(b) requires a SIP to
``contain such emission limits, schedules of compliance and other
measures as may be necessary to make reasonable progress toward meeting
the national goal'' and asserted that the trigger warranting evaluation
of the four statutory factors is, by statute, whether it is first
``necessary'' to meet the national goal. KDHE asserted that Kansas
sources' de minimis impact to visibility and trending reduction of
visibility impairment makes conducting four-factor analyses unnecessary
to ensure reasonable progress. KDHE stated that the EPA's insistence
that every State carry out four-factor analysis despite having
insignificant sources with respect to visibility impact is not
justified. KDHE concluded that the threshold the EPA currently uses
exceeds the statutory requirement, is inconsistent with legislative
intent, and is arbitrary.
Response to KDHE Comment 2: The EPA disagrees with this comment. In
order to meet the statutory and regulatory requirements, as stated in
the EPA's 2021 Clarifications Memo and discussed in the NPRM, States
have discretion to choose any source selection threshold or methodology
that is reasonable; however, whatever choices States make should be
reasonably explained and produce a reasonable set of sources, or groups
of sources, on which to apply the four statutory factors when
evaluating potential control measures for inclusion in the LTS. 2021
Clarifications Memo at 3. Reasonableness will depend on the specific
circumstances. Kansas's chosen threshold of 1.0% is unreasonable for a
number of reasons.
First, Kansas's chosen source selection methodology analyzed
visibility impacts from Kansas and compared those to visibility impacts
to other States that impact the same Class I areas. In so doing, Kansas
concluded that its in-state contribution to visibility impairment at
the affected Class I area is insignificant and therefore, it was
unnecessary to undertake an evaluation of control measures by applying
the four statutory factors. This was improper. Under the RHR, each
State has an obligation to submit a LTS that addresses the regional
haze visibility impairment resulting from emissions from within that
State, and that obligation ``is not discharged simply because another
State's contributions to visibility impairment may be greater.'' Id.
There is no exclusion in the CAA or RHR to support the contention that
if a State can show emissions are ``insignificant'' or ``de minimis'',
then it does not have to comply with 40 CFR 51.308(f). Therefore, just
because emissions from Kansas may not impact Class I areas as much as
emissions from other States, Kansas still nonetheless has an obligation
to evaluate a reasonable set of sources for additional controls, which
it did not do.
KDHE provided information including graphs and tables showing the
improving visibility impairment at Class I areas impacted by Kansas
emissions, year over year of decreasing emissions, and Kansas's low
impact compared to other nearby States. While we agree that these are
true, as stated throughout this document, these facts do not relieve
Kansas from the requirement to have a LTS by considering the four
statutory factors.
Secondly, Kansas's chosen threshold of 1.0% is unreasonable because
it excluded all of the State's largest visibility impairing sources
from selection. Generally, a threshold that captures only a small
portion of a State's contribution to visibility impairment in Class I
areas is more likely to be unreasonable. Id. A State that relies on a
visibility (or proxy for visibility impact) threshold to select sources
for four-factor analysis should set the threshold at a level that
captures a meaningful portion of the State's total in-state
contribution to visibility impairment to Class I areas.\8\ Not only did
Kansas not evaluate its largest sources for visibility impairment, it
also opted not to evaluate groups of its smaller sources, which,
especially as it relates to Kansas, was unreasonable.
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\8\ Guidance on Regional Haze State Implementation Plans for the
Second Implementation Period. p. 19 <a href="https://www.epa.gov/visibility/guidance-regional-haze-state-implementation-plans-second-implementation-period">https://www.epa.gov/visibility/guidance-regional-haze-state-implementation-plans-second-implementation-period</a>. The EPA Office of Air Quality Planning and
Standards, Research Triangle Park (August 20, 2019) (``2019
Guidance'').
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CAA section 169A(b)(2)(B), requires each State having emissions
that may affect visibility in a Class I area to include in its SIP
emission limits, schedules of compliance, and other measures as may be
necessary to make reasonable progress toward meeting the national goal.
CAA section 169A(b)(2)(B). The national goal, as laid out in section
169A(a)(1) of the CAA is to prevent future, and to remedy existing
manmade impairment of visibility in Class I areas.
In the 1999 RHR, the EPA stated that the ``prevention component of
the national goal requires that States have the framework in place to
address future growth in emissions. . . . For this reason, the EPA does
not believe that it is appropriate to establish criteria for excluding
States or geographic areas from consideration as potential contributors
to regional haze.'' 64 FR 35721 (1999). Then, in the 2017 RHR, the EPA
``reiterat[ed] that the CAA requires States to consider the four
statutory factors . . . in each implementation period to determine the
rate of progress towards natural visibility conditions that is
reasonable for each Class I area.'' 82 FR 3080 (2017).
The 2017 RHR also recognized that, due to the nature of regional
haze (visibility impairment that is caused by the emissions of air
pollutants from numerous anthropogenic sources located over a wide
geographic area), numerous and sometimes (relatively) smaller in-state
sources may need to be selected and evaluated for control measures as
part of the reasonable progress analysis. As stated in response to
comments on the 2017 RHR, ``[a] state should not fail to address its
many relatively low-impact sources merely because it only has such
sources and another state has even more low-impact sources and/or some
high impact sources.'' \9\ However, despite acknowledging that
emissions from Kansas impacted numerous Class I areas, Kansas did not
select any sources, large or small, to evaluate for emission reduction
measures.
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\9\ Responses to Comments on Protection of Visibility:
Amendments to Requirements for States Plans; Proposed Rule (81 FR
26942, May 4, 2016) at 87-88, available at <a href="https://www.regulations.gov/document/EPA-HQ-OAR-2015-0531-0635">https://www.regulations.gov/document/EPA-HQ-OAR-2015-0531-0635</a>; See 2021
Clarifications Memo p. 4.
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Once a State has selected sources, or groups of sources, for
evaluation, it then must consider the four statutory factors to
evaluate the emission reduction measures that are necessary to make
reasonable progress. CAA section 169A(g)(1); 40 CFR 51.308(f)(2).
Control measures that are necessary to make reasonable progress toward
the national goal of natural visibility conditions must be included in
the State's LTS in the SIP. CAA section 169A(b)(2)(B); 40 CFR
51.308(f)(2). Kansas did not select any sources to evaluate and did not
apply the four statutory factors in order to determine what is
necessary for reasonable progress, thus resulting in an unjustified LTS
for the second planning period. The EPA therefore finds
[[Page 64377]]
Kansas's selected threshold to be unreasonable and not in in accordance
with the CAA or the RHR. We therefore find the chosen source selection
threshold and the resulting lack of analysis of controls and
application of the four statutory factors to be unreasonable.
In addition, Kansas's interpretation of the phrase ``as may be
necessary to make reasonable progress toward meeting the national
goal'' is incorrect. Kansas's statutory construction comment is
inconsistent with the EPA's interpretation and explanation laid out in
the 2017 RHR preamble. To achieve the national goal, it is
``necessary'' for all States to reduce or eliminate visibility-
impairing emissions, which includes contributions from sources in
Kansas. While the EPA has created an iterative planning process to
achieve Congress' ambitious goal, that process will take many years.
Thus, in the second planning period, it nonetheless remains
``necessary'' for States to consider the four statutory factors and
evaluate potential control measures to ensure that they are making
reasonable progress toward that goal.
Kansas's conclusion that a four-factor analysis should only be
conducted if visibility impacts are significant (i.e., not de minimis)
is incorrect. The EPA acknowledges that for many States, including
Kansas, there has been a reduction of visibility impairment since the
first planning period. While the impact from the highest-emitting
sources may be less than the first planning period, sources from
Kansas, large or small, still emit visibility impairing pollutants and
Kansas thus must comply with the RHR. While Kansas is correct that the
EPA has not mandated a specific threshold, the EPA has provided States
with guidance and flexibility on how to define a threshold in order to
select a reasonable set of sources for analysis of control measures, as
set out above.
The EPA also disagrees with KDHE's contention that it is not
necessary for every State to take into consideration the four statutory
factors when determining the control measures that are a part of their
LTS for the second planning period. CAA section 169A(b)(2) requires
each State whose emissions may reasonably contribute to visibility
impairment to include in its regional haze SIP the measures that are
necessary to make reasonable progress toward meeting the national goal
of preventing future, and eliminating existing, visibility impairment
in Class I areas. Within these SIPs, CAA section 169A(b)(2)(B) also
requires long-term (10-15 year) strategies for making reasonable
progress. CAA 169A(g)(1) outlines that in determining reasonable
progress, the four factors must be considered, which is also outlined
in the RHR. As outlined in the 1999 RHR, the EPA concluded that ``all
States contain sources whose emissions are reasonably anticipated to
contribute to regional haze in a Class I area and, therefore, must
submit regional haze SIPs.'' 64 FR 35721 (1999). This determination did
not change with the 2017 RHR.\10\ Because the time period for Kansas to
take issue with the second planning period regulations has passed, it
is thus outside of the scope of this action.
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\10\ In the 2017 RHR, the EPA ``reiterat[ed] that the CAA
requires States to consider the four statutory factors . . . in each
implementation period to determine the rate of progress towards
natural visibility conditions that is reasonable for each Class I
area.'' 82 FR 3080.
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Therefore, in the second planning period, just as with the first
planning period, all States are required to submit SIPs to address
regional haze and those SIPs must include a LTS for making reasonable
progress, which considers the four statutory factors.\11\
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\11\ See 64 FR 35721-35722 for additional explanation as to the
EPA's determination that emissions from all States reasonably
contribute to visibility impairment and thus are subject to the
regional haze regulations.
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In applying the requirements of the regional haze program, the
EPA's disapproval is consistent with, and within, the bounds of the CAA
and its legislative intent.
KDHE Comment 3: KDHE asserted that Kansas's 2021 SIP declined to
select sources for four-factor analyses only after Kansas determined
that the effect of existing measures employed during the first
implementation period made conducting such analyses unnecessary to
ensure reasonable progress with the national goal. To that point, KDHE
further stated that it provided additional analyses of certain sources
in its reply to the EPA comments. KDHE directed the EPA to review the
2021 SIP submission again and notice that each factor required by
regulation to be discussed for an LTS was identified and commented on
in the submission. The commenter suggested the SIP submission followed
the 2019 Guidance by robustly discussing and considering the four
statutory factors and concluding that further action was unnecessary to
make reasonable progress.
Response to KDHE Comment 3: The EPA disagrees that Kansas's SIP
submission included a robust demonstration, based on the four statutory
factors, that no additional controls are necessary in the second
planning period. As stated in the RHR, the NPRM, and throughout this
document, application of the four factors is required by the CAA for a
second planning period SIP's LTS. Neither the CAA nor the RHR establish
a visibility impact threshold in order for a State to conduct the
analysis. As noted in the 2019 Regional Haze Guidance, it is reasonable
for States to consider visibility alongside the four statutory factors
when determining the emission reduction measures that are necessary to
make reasonable progress. 2019 Guidance at 28. However, considering
visibility as an additional factor must be done ``in a reasonable way
that does not undermine or nullify the role of the four statutory
factors in determining what controls are necessary to make reasonable
progress.'' \12\
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\12\ 2021 Clarifications Memo at 13 (quoting Response to
Comments on Protection of Visibility: Amendments to Requirements for
State Plans; Proposed Rule at 186).
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As discussed above in Responses to KDHE Comments 1 and 2, the
support proffered for Kansas' decision to decline to select sources
included Kansas's mistaken belief that the surrounding States should
match the level of control at Kansas sources before Kansas evaluates
sources for further controls and that, in Kansas's interpretation of
CAA section 169A(b)(1), the impacts from individual Kansas sources are
so insignificant so as to not require controls. As stated above, the
EPA does not find these assertions to be aligned with the statute or
RHR, and thus we find that Kansas has not reasonably explained its
decision to not select sources for analysis.
If KDHE wanted to rely upon its first planning period analysis and
approach, the 2019 Guidance and 2021 Clarifications Memo explain that
the State must support its conclusion with a sound analysis that no new
significant information is available that changes the first planning
period approach. 2019 Guidance at 36; 2021 Clarifications Memo at 5.
Kansas's submission did not include an analysis of its first planning
period source selection and four factor considerations. Instead, Kansas
points to the SO<INF>2</INF> reductions achieved during the first
planning period compared to other States. The EPA finds that this is
not a reasonable analysis of Kansas's first planning period approach.
The EPA acknowledged in its 2021 Clarifications Memo that many of the
largest individual visibility impairing sources have either been
controlled or retired and that visibility improvement has occurred in
most Class I areas. 2021 Clarifications Memo at 14. Nonetheless,
[[Page 64378]]
the EPA emphasized that additional progress is needed to achieve the
national goal set by Congress,\13\ such as evaluating control measures
for relatively smaller sources. 2021 Clarifications Memo at 14.
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\13\ See CAA section 169A(a)(1).
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KDHE cites to the 2019 Guidance and the 2021 Clarifications Memo
for how a State can reasonably explain its decision to not select
sources. However, without conducting the proper analyses required by
the rule, KDHE cannot determine that additional controls or
optimization of current controls to reduce emissions and improve
visibility would not be cost-effective or necessary for reasonable
progress.
On June 28, 2021, the EPA submitted comments on the Kansas regional
haze plan revision during the public comment period. After the State's
public comment period closed, in the SIP's Responsiveness Summary,
Kansas addressed the EPA's comment by providing ``narrative analyses
for the two most impactful facilities based on nitrates-only and
sulfates-only AOI results'' in order to satisfy the requirement of 40
CFR 51.308(f)(2)(i). The narrative analyses discussed NO<INF>X</INF>
controls at Evergy--La Cygne and SO<INF>2</INF> controls at Sunflower
Electric--Holcomb.
The EPA notes that Kansas did generally undertake an evaluation of
emission reduction measures necessary to make reasonable progress for
Evergy--La Cygne and Sunflower Electric--Holcomb. However, the EPA
disagrees with Kansas's assertion in the Responsive Summary and its
comment on the NPRM that the narrative analyses satisfy the requirement
to consider the four statutory factors for two reasons, one substantive
and the other procedural.
Substantively, Kansas's four-factor analysis for Evergy--La Cygne
and Sunflower Electric--Holcomb is not sufficient. The EPA notes that
the 2019 Guidance provides the opportunity for a State to forgo a full
four-factor analysis for a particular source if it is already
``effectively controlled,'' as long as the State explains why it is
reasonable to assume that a four-factor analysis would likely result in
the conclusion that no further controls are reasonable. 2019 Guidance
at 22. Further, the EPA's 2021 Clarifications Memo guides that if a
source can achieve, or is achieving, a lower emission rate using its
existing measures than the rate assumed for the ``effective control,''
a State should further analyze the lower emission rate(s) as a
potential control option. 2021 Clarifications Memo at 5. In its
analysis, Kansas discusses the current control equipment, control
efficiencies and current enforceable emission limitations for Evergy--
La Cygne NO<INF>X</INF> and Sunflower Electric--Holcomb SO<INF>2</INF>.
Kansas states that the recent actual emissions are below the current
enforceable emission limits and did not analyze the actual emission
rates as potential control options for the sources. While Kansas's
analysis is informative, it is insufficient because the information
provided was very cursory and did not evaluate a full range of control
options.
Procedurally, the four-factor analysis of NO<INF>X</INF> controls
at Evergy--La Cygne and SO<INF>2</INF> controls at Sunflower Electric--
Holcomb was not part of Kansas's regional haze plan revision that went
out for public comment from May 27, 2021, to June 22, 2021. 40 CFR
51.102(a) requires States to provide the opportunity to submit written
comments on SIP submittals. 40 CFR 51.102(a). 40 CFR 51.104(c) states
``EPA will approve revisions only after applicable hearing requirements
of Sec. 51.102 have been satisfied.'' 40 CFR 51.104(c). The public did
not have an opportunity to submit written comments on the narrative
four-factor analysis provided by Kansas in the Responsive Summary, thus
resulting in a procedural defect.
A State that has emissions that may affect visibility in a Class I
area must develop a LTS that includes the enforceable emission
limitations, compliance schedules, and other measures that are
necessary to make reasonable progress in such Class I areas. 40 CFR
51.308(f)(2). The State must evaluate and determine the emission
reduction measures that are necessary to make reasonable progress by
considering the four factors of CAA section 169A(g)(1). The outcome of
that analysis is used to determine the emission reduction measures that
a particular source or group of sources needs to implement in order to
make reasonable progress towards the national visibility goal. The
State must include in its implementation plan a description of the
criteria it used to determine which sources or groups of sources it
evaluated and how the four factors were taken into consideration in
selecting the measures for inclusion in its LTS. In addition, emission
reduction measures that are necessary to make reasonable progress may
be either new, additional control measures for a source, or they may be
the existing emission reduction measures that a source is already
implementing, and those measures must be included in the SIP. 2019
Guidance at 45; 2021 Clarifications Memo at 8-10.
As stated in the NPRM, Kansas's submission identifies one hundred
and twenty-eight (128) sources in Kansas that impact Class I areas. If
Kansas had followed the RHR and properly analyzed a set of these
sources, it could potentially have identified additional cost-effective
control measures to achieve SO<INF>2</INF> or NO<INF>X</INF> emission
reductions that would help make progress toward visibility goals in
affected Class I areas. Instead, Kansas selected no sources for which
to take into consideration the four factors. Consequently, Kansas did
not, nor could not, describe the criteria it used to determine which
sources or groups of sources it evaluated and how the four factors were
applied in selecting the measures included in the LTS for the second
planning period.
KDHE Comment 4: KDHE commented that it demonstrated that
substantive revision of the existing implementation plan is unnecessary
to achieve established goals. KDHE stated that per 40 CFR 51.308(f)(5),
revisions of a SIP also serve as ``a progress report'' and that at the
same time the State is ``required to submit any progress report,'' the
State is directed to determine the adequacy of the existing
implementation plan. KDHE contended that the regulation clearly and
unambiguously establishes that a State may determine that no
substantive revision to the existing SIP is necessary, and that the
2021 SIP submission reasonably determined that such is the case. KDHE
requested the EPA approve the SIP revision.
Response to KDHE Comment 4: The EPA disagrees with KDHE's
interpretation of 40 CFR 51.308(f)(5). 40 CFR 51.308(a) ``establishes
requirements for implementation plans, plan revisions, and periodic
progress reviews to address regional haze.'' 40 CFR 51.308(f) sets
forth the requirements for the periodic State implementation plan
revisions, which are to be submitted by July 31, 2021, July 31, 2028,
and every 10 years thereafter. 40 CFR 51.308(f). These SIP revisions
are referred to as the second planning period, third planning period,
etc. 40 CFR 51.308(g) details the requirements for periodic reports
describing progress towards reasonable progress goals, which are to be
submitted by January 31, 2025, July 31, 2033, and every 10 years
thereafter. 40 CFR 51.308(g).
The determination of adequacy for the existing implementation plan
found under 40 CFR 51.308(h) is not applicable to the second planning
period SIP revisions under 40 CFR 51.308(f)(2), as KDHE mistakenly
asserts. Rather, the requirements for
[[Page 64379]]
States to submit a declaration of adequacy under 40 CFR 51.308(h) is
triggered when a State is required to submit a progress report pursuant
to the deadline requirements of 40 CFR 51.308(g). Under 40 CFR
51.308(g), States are required to submit a progress report containing a
declaration of adequacy under 40 CFR 51.308(h) to the EPA by January
31, 2025, July 31, 2033, and every 10 years thereafter. The ``progress
report'' submitted under Kansas' second planning period SIP revision
under 40 CFR 51.308(f)(2) was due to the EPA on July 21, 2021, and does
not serve as a progress report as required under 40 CFR 51.308(g). The
language under 40 CFR 51.308(h) is clear in that the determination of
adequacy is only applicable ``at the same time the State is required to
submit any progress report to the EPA in accordance with [40 CFR
51.308](g).''
The EPA reiterates that KDHE did not submit a progress report in
accordance with 40 CFR 51.308(g) when it submitted its second planning
period SIP revision due July 21, 2021. Rather, the progress report
provided in the second planning period SIP revision was to fulfill its
40 CFR 51.308(f)(5) requirements. The regulatory language under 40 CFR
51.308(f)(5) directs States only to consider the general progress
report requirements under 40 CFR 51.308(g)(1) through 40 CFR
51.308(g)(5), and not the additional progress report requirements (such
as 40 CFR 51.308(g)(6) or 40 CFR 51.308(g)(8)) that are contained under
the entirety of 40 CFR 51.308(g). Furthermore, the established
deadlines and timeframes under 40 CFR 51.308(g) ensure that a plan
revision under 40 CFR 51.308(f) and a progress report under 40 CFR
51.308(g) will never overlap.
Thus, for the reasons described in this response, KDHE is mistaken
that it can use a declaration of adequacy under 40 CFR 51.308(h) in
order to avoid considering the four statutory factors to fulfill its
LTS requirements for the second planning period under 40 CFR
51.308(f)(2). KDHE has not submitted a progress report under 40 CFR
51.308(g) to fulfill its requirements for the next regulatory due date
for progress reports.\14\ Rather, KDHE has submitted a progress report
to meet its SIP revision obligations under 40 CFR 51.308(f)(2), which
contains an obligation to meet the requirements of 40 CFR 51.308(f)(5).
There is no regulatory option for KDHE to make a declaration of the
existing plan when submitting a revision to meet the requirements of 40
CFR 51.308(f)(2). Thus, Kansas cannot utilize 40 CFR 51.308(h)(1) to
assert that Kansas does not need to revise its regional haze plan for
the second planning period under 40 CFR 51.308(f)(2).
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\14\ The next regulatory deadline for the regional haze second
planning period progress reports under 40 CFR 51.308(g) is January
31, 2025.
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KDHE Comment 5: KDHE commented that Kansas used a reasonable
threshold for source selection consistent with the CAA. KDHE asserted
that the EPA arbitrarily concludes that any impairment of visibility
greater than zero requires completely utilizing the four-factor
analysis, and this conclusion unnecessarily saddles States with the
overly burdensome endeavor of engaging in four factor analysis for
sources whose impact to visibility is insignificant. KDHE argued that
the EPA disregards the cost and futility associated with revision of
the SIP and ``proposes to disapprove the 2021 SIP for no other reason
beyond requiring Kansas to complete arbitrary formalities established
by regulations that are inconsistent with the [CAA] and exceed the
authority granted to EPA.''
Response to KDHE Comment 5: The EPA disagrees with KDHE's statement
that Kansas used a threshold for source selection consistent with the
requirements of the CAA and that the EPA's conclusions are arbitrary.
As discussed in the Responses to KDHE's Comment 1 and 2, Kansas's
chosen threshold which resulted in no sources being selected for a
four-factor analysis is not reasonable because it excluded all of the
State's largest visibility impairing sources and every State is
required to include the LTS in the SIP revision.
The EPA disagrees that it is arbitrary for the Agency to require
second planning period regional haze SIP submissions to develop a LTS
that will make reasonable progress towards the national goal specified
in CAA section 169A(a)(1), through consideration of the four factors
specifically outlined in the CAA section 169A(g)(1). Kansas decided to
not select any sources and, as stated in the NPRM, the EPA does not
find its decision to be reasonable. Kansas's own submission lists one
hundred twenty-eight (128) sources in Kansas with some, albeit low,
visibility impacts on at least one Class I area. When SO<INF>2</INF>
and NO<INF>X</INF> emissions were considered together by Kansas,
impacts from individual Kansas sources ranged from 0.01% to 0.84% of
the total estimated visibility impact. As stated in the NPRM, Kansas
did not provide any statutory or regulatory based explanation as to why
it was reasonable not to select and analyze potential control options
for any of these sources. Therefore, as submitted, the SIP revision did
not include the statutorily and regulatorily required consideration of
the four statutory factors and a LTS for the second planning period.
The 2017 RHR Revision directed all States that impact Class I areas
to evaluate major and minor emission sources and consider the four
factors in the second planning period SIP revision. It is already
established that Kansas emissions impact Class I areas. As mentioned
previously, the EPA acknowledges that there has been visibility
improvement and source retirements since the first planning period.
However, the fact remains that there is no exclusion in the CAA or RHR
to support the contention that if a State can show emissions are
``insignificant'' or ``de minimis'', then it does not have to comply
with 40 CFR 51.308(f). The EPA has long established that achieving the
Congressional goal of natural visibility will take reductions from
multiple sources, across all States, over multiple planning periods.
The EPA also disagrees that source selection and a four-factor
analysis is a costly and futile formality of the RHR. The 2019 Guidance
and 2021 Clarifications Memo provide States with latitude by which to
formulate the LTS, so long as the result is reasonably supported. 2019
Guidance at 9; 2021 Clarifications Memo at 3. As stated in the NPRM,
Kansas has not conducted a reasonably supported analysis to in
developing its LTS for the second planning period. Had Kansas selected
sources to analyze for a four-factor analysis or properly explained its
decision not to, it is possible that there would be no new cost-
effective controls. If that were the case, then Kansas's existing
controls would be necessary for reasonable progress and would need to
be in the State's LTS. However, Kansas did not demonstrate that with a
proper analysis. 2021 Clarifications Memo at 10.
Additionally, as discussed in Response to KDHE Comment 3, the EPA
also does not find KDHE's narrative analyses for Evergy--La Cygne for
NO<INF>X</INF> and Sunflower Energy for SO<INF>2</INF> in its
Responsive Summary to properly analyze that these sources are
effectively controlled. Therefore, the EPA proposed to disapprove the
SIP revision and declines KDHE's request to approve it.
C. Kansas Utilities' Comments and Responses
Kansas Utilities' Comment 1: BPU stated that they submitted
comments to KDHE on June 28, 2021, during the State's public review and
comment period. BPU's comments to the State included modeling results
performed by Trinity Consultants, which BPU
[[Page 64380]]
contended confirm KDHE's conclusion that Kansas's existing plan
required no further revision to show reasonable progress toward
achieving its LTS for reducing regional haze in affected Class I areas.
BPU stated that Kansas has seen significant declines in visibility-
impairing emissions due to substantial efforts taken by BPU and other
Kansas utilities. BPU also provided a copy of BPU's comments as
submitted to KDHE during its comment period on the proposed plan
revision for the second planning period, dated June 28, 2021 and
reiterated to the EPA the modeling results performed by Trinity
consultants for BPU's Nearman Creek Power Station. These comments
include a narrative discussion of costs and remaining useful life of
the Nearman Creek Power Station regarding SO<INF>2</INF> emissions. BPU
stated the dry scrubbers installed in 2017 achieve very high levels of
SO<INF>2</INF> control. BPU states these levels are very near what a
wet scrubber could do. BPU discussed how the dry scrubbers get better
control of acids and are used for Mercury control to meet the Mercury
and Air Toxics Standard. BPU concluded that additional controls,
specifically new wet controls would be unreasonable.
Response to Kansas Utilities' Comment 1: Generally, the EPA does
not disagree with BPU's comment; however, the information provided by
BPU in its public comment on the NPRM is a summary of Trinity
Consultants' modeling results and a narrative discussion of costs and
remaining useful life for Nearman Creek Power Station. The actual
modeling was not provided to the EPA, the FLMs, or the public, and KDHE
did not revise the SIP revision so it could properly rely on the
information. We disagree with BPU's argument that the SIP submission is
approvable.
As previously stated, in order to demonstrate that no additional
controls were necessary for reasonable progress at sources in Kansas,
KDHE was required by the CAA and the RHR to evaluate sources or groups
of sources and determine the emission reduction measures that are
necessary to make reasonable progress by considering the four statutory
factors. Specifically, the Kansas SIP revision for the second planning
period did not provide a substantive analysis related to the
effectiveness of controls, nor did Kansas clarify that it determined
that the existing controls were necessary for reasonable progress and
thus a part of its LTS for the second planning period.\15\ It is
significant that Kansas jumped to the conclusion that no controls were
required for the second planning period without conducting a proper
cost effectiveness analysis for those existing measures.
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\15\ See Response to KDHE Comment 3.
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Further, the comment presented summaries from Trinity's modeling
analysis and provided a copy of BPU's comment letter submitted to KDHE
during the State's public review and comment period. Neither Kansas nor
BPU provided the modeling files or documentation of Trinity's modeling
analysis during the EPA's comment period. The 2019 Guidance provides a
mechanism for a State to decline to select a source ``if the source
owner has recently made a significant expenditure that resulted in
significant reductions of visibility impairing pollutants at an
emissions unit, it may be reasonable for the State to assume that
additional controls on the unit are unlikely to be reasonable for the
upcoming implementation period.'' 2019 Guidance at 22-23. The Guidance
directs the State to ``explain why the decision is consistent with the
requirement to make reasonable progress, i.e., why it is reasonable to
assume for the purposes of efficiency and prioritization that a full
four-factor analysis would likely result in the conclusion that no
further controls are necessary.'' Id. at 23. BPU and Kansas did no such
analysis to justify the decision to not select sources, and thus cannot
be considered by the EPA.
As to BPU's discussion of costs and remaining useful life of
Nearman Creek Power Station and its controls regarding SO<INF>2</INF>
emissions, we acknowledge that a full cost analysis may confirm BPU's
assertion. In other words, at sources like Nearman Creek Power Station,
with highly effective air pollution controls, it may be cost
prohibitive to replace or improve the efficiency of the controls. In
recognition of these potential scenarios, the EPA included the option
for States to not select effectively controlled sources in order to
focus on other sources which may impact Class I areas in the 2019
Guidance. Id. at 22. The EPA guidance, though, is based upon the
recognition that the highly effective control emission rates must be
made Federally enforceable within the SIP. No emission control measures
were submitted to the EPA for incorporation into the Kansas SIP.
The EPA understands that if KDHE was to select Nearman Creek Power
Station and conduct a four-factor analysis, with full documentation and
cost numbers, the result for SO<INF>2</INF> may be that the existing
controls are all that is needed for reasonable progress and thus should
be a part of its LTS for the second planning period. However, without
the proper analysis in Kansas's formal SIP revision, and without
inclusion of any existing control measures for incorporation into the
SIP, we cannot consider BPU's comment alone as Kansas's application of
the four factors for SO<INF>2</INF> controls, or as an explanation as
to why the Nearman Creek Power Station should not be selected for four-
factor analysis for SO<INF>2</INF> controls. We are also not opining on
what a four-factor analysis would show in regard to NO<INF>X</INF>
emissions and controls, only that if Kansas selects Nearman Creek Power
Station, we expect NO<INF>X</INF> to also be considered.
Furthermore, BPU's comment was not provided to the FLMs during the
consultation process or included in the State's plan revision for
public notice and comment. Therefore, the analysis does not satisfy the
substantive or procedural requirements of the statute or
regulations.\16\ The EPA acknowledges that the information from BPU is
informative, but from a technical perspective, the EPA cannot consider
this as Kansas satisfying the requirement to evaluate major or minor
emissions sources and consider the four statutory factors because KDHE
did not modify its SIP revision to the EPA as a result of BPU's June
28, 2021, comment to include an analysis of the controls at Nearman
Station.
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\16\ See Response to KDHE Comment 3.
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Kansas Utilities' Comment 2: Evergy commented that the EPA's
proposed disapproval is discouraging because Kansas sources have
reduced contributions of NO<INF>X</INF> and SO<INF>2</INF> to Class I
areas. Such large emission reductions have been achieved through
investments making the energy grid smarter, cleaner, more dynamic, more
flexible, and more secure while providing affordable and reliable
service to customers. Evergy stated that emissions of NO<INF>X</INF>
and SO<INF>2</INF> from Kansas electric generating units are down 85
and 97 percent, respectively, over the period from 2005 to 2022, and
Evergy provided the specific reductions attributable to its emission
sources during the first planning period. Evergy asserted that the
``above and beyond'' first planning period reductions made by Evergy
would be utilized in the second planning period. Evergy commented that
no neighboring State or FLM requested additional reductions from any
Kansas emission sources, including Evergy sources, during the second
planning period consultation process. Evergy further argued that
instead of recognizing this, the EPA insists on continually burdening
Kansas emissions sources by requiring analyses
[[Page 64381]]
that will result in no meaningful reduction in visibility impairing
pollutants.
Response to Kansas Utilities' Comment 2: As previously discussed in
response to KDHE's comments, the EPA disagrees that previous emissions
reductions achieved in prior planning periods relieves Kansas from its
obligations to submit a second planning period SIP revision that meets
the requirements of the CAA and RHR.\17\ The EPA is guided by, and
implements, the regional haze program as established in the CAA and the
regulations, which do not provide a measurement by which States are
excluded from the RHR requirements. CAA section 169A(a)(1); 40 CFR
51.308(f). Therefore, Kansas, like every other State,(and the District
of Columbia and the U.S. Virgin Islands) regardless of what transpired
in the first planning period, is required to submit a second planning
period SIP that meets the requirements of the CAA, as established in
the RHR.
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\17\ See Response to KDHE Comment 1.
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If KDHE wanted to rely upon the emission reductions achieved by
Evergy and other Kansas sources during the first planning period, then
Kansas must document the technical basis on which it is relying to
determine that those emissions reductions measures are necessary to
make reasonable progress for the second planning period. 40 CFR
51.308(f)(2)(iii). Kansas's submission did not provide the requisite
documentation, including a reasoned analysis of why it declined to
select any sources; did not make a connection between the source
selection step for the second planning period and the emissions
controls implemented; and did not provide an analysis of its first
planning period source selection and four factor considerations.
Instead, Kansas simply points to the SO<INF>2</INF> reductions achieved
during the first planning period compared to other States. The EPA
finds that this is not a reasonable analysis when determining what
measures are necessary for reasonable progress for the second planning
period.
Additionally, the statute and rule require evaluation of emissions
sources and consideration of the four statutory factors to be part of
the State's SIP revision for the second planning period for regional
haze regardless of the outcome of the required state-to-state
consultation. During the consultation, a State may agree to certain
measures necessary to make reasonable progress at a Class I area, and
those measures must be included in the SIP revision. The state-to-state
consultation also allows States to share the emission reduction
measures that have been identified to reduce emissions from their own
sources. Therefore, the state-to-state consultation is just one facet,
among many, in determining which emission reduction measures for
selected sources, or groups of sources, should be included in a State's
LTS.
Kansas's SIP submission included documentation of its consultations
with Colorado and New Mexico, and neither State appeared to disagree
with or comment on Kansas's LTS approach. However, the EPA disagrees
with the assertion that, based on consultation, it was reasonable for
Kansas to determine it did not have to select sources, apply the four
statutory factors, or describe how the statutory factors were evaluated
when selecting measures for inclusion in the LTS.
As far as the EPA ``burdening Kansas emissions sources with even
more analyses and financial obligations'', the EPA is obligated to
implement the mandate created by Congress to prevent future, and remedy
existing visibility impairment by requiring States to submit SIP
revisions that include a LTS to make reasonable progress. CAA section
169A(a)(1),(b)(2)(B). For the second planning period, the EPA conducted
a rulemaking with public comment on how the States should be required
to address the Congressional mandate. Notably, during that comment
period, the EPA received no comments from Kansas or Kansas emission
sources to this effect, nor any lawsuits from said parties. If Kansas
or Kansas emissions sources have ideas on how to meet the Congressional
mandate without further burden on States or sources, we encourage said
parties to be involved in the public discourse with the EPA as it
relates to the third planning period.
Kansas Utilities' Comment 3: Evergy and Sunflower commented that
the EPA failed to consider Kansas's analyses of sources that KDHE
included in its Responsiveness Summary. Evergy asserted that the
analyses performed by KDHE demonstrate the current NO<INF>X</INF>
controls at the Evergy--La Cygne facility satisfy the requirements to
consider additional controls. Sunflower commented that the narrative
analyses demonstrate that the current SO<INF>2</INF> controls at the
Sunflower--Holcomb unit result in a reasonable conclusion that further
analysis of this unit is not reasonable.
The commenters stated the EPA should review the 2021 SIP again and
notice that each factor required to be discussed was identified and
commented on in the 2021 SIP submission. Evergy and Sunflower argued
the EPA's statement that the 2021 SIP lacks a LTS is patently false.
Response to Kansas Utilities' Comment 3: As similarly addressed in
response to KDHE's Comment 3, the EPA disagrees with Evergy and
Sunflowers that KDHE's narrative analyses satisfy the regulatory
requirements.\18\ The narrative analyses are insufficient because the
analyses did not include an explanation of why it is reasonable to
assume that the four-factor analysis would likely result in the
conclusion that no further controls are reasonable for these two
sources. Furthermore, Kansas did not analyze lower emission rate(s) as
a potential control option for these sources. The narrative analyses
states that the recent actual emissions for La Cygne and Holcomb are
below the current enforceable emission limits, and therefore, Kansas
failed to evaluate a full range of control options as required.
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\18\ See Response to KDHE Comment 3.
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Additionally, the Responsiveness Summary fails to satisfy the
procedural requirements for public notice and comment in 40 CFR part 51
because it was not part of Kansas's regional haze plan revision that
went out for state-level public comment from May 27, 2021, to June 28,
2021. 40 CFR 51.102(a) requires States to provide the opportunity to
submit written comments on SIP submittals. 40 CFR 51.102(a). 40 CFR
51.104(c) states ``EPA will approve revisions only after applicable
hearing requirements of Sec. 51.102 have been satisfied.'' 40 CFR
51.104(c). The public did not have an opportunity to submit written
comments on the analyses provided by Kansas in the Responsive Summary.
Due to the substantive and procedural defects surrounding the
Responsiveness Summary, the EPA has determined that the narrative
analyses do not meet the RHR requirements, and therefore, the EPA
proposes disapproval of Kansas's SIP revision.\19\
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\19\ See Response to KDHE comment 3.
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Kansas Utilities' Comment 4: The Kansas Utilities stated the EPA is
authorized to require by regulation that a SIP ``contain such emission
limits, schedules of compliance and other measures as may be necessary
to make reasonable progress toward meeting the national goal . . .''
The commenters argued that the trigger warranting evaluation of those
factors is, by statute, whether it is first ``necessary'' to meet the
national goal, and an evaluation is unnecessary in instances where the
visibility impact is <1.00%. The Kansas Utilities asserted that Kansas
demonstrated that ``substantive''
[[Page 64382]]
revision of the existing SIP is unnecessary because the regulation
clearly and unambiguously establishes that a State may determine that
no substantive revision to the existing SIP is necessary. The Kansas
Utilities concluded that Kansas reasonably determined that no
substantive revision of the SIP is necessary based on all of the
information provided in the 2021 SIP.
Response to Kansas Utilities' Comment 4: As similarly addressed in
Responses to KDHE Comments 2 and 4, the EPA disagrees with this
comment. The Kansas Utilities makes the same arguments and provide
similar data as KDHE regarding when evaluation of the four statutory
factors is ``necessary'' under the CAA and RHR. As such, the EPA's
Response to KDHE Comment 2 is applicable to this comment. To the extent
that the Kansas Utilities assert KDHE's argument that, per 40 CFR
51.308(f)(5), Kansas has demonstrated a substantive revision of the
existing plan is unnecessary, the EPA's Response to KDHE Comment 4 is
applicable and conveys why this regulatory interpretation is incorrect.
Kansas Utilities' Comment 5: The commenters stated that the
existing Kansas regional haze emission limits will continue to show
reasonable progress towards achieving visibility gains in the affected
Class I areas through the second planning period.
Response to Kansas Utilities' Comment 5: As stated throughout this
document, while the EPA recognizes the gains made at most of the Class
I areas affected by Kansas sources, Kansas is nonetheless still
required to comply with the regulatory requirements of analyzing
sources, or groups of sources, via application of the four statutory
factors, to determine if there are new or additional cost effective
controls that would result in reasonable progress towards natural
visibility.
If Kansas wanted to rely on an argument that their existing
effective controls are necessary for reasonable progress in the second
planning period, the EPA has provided guidance on how to analyze and
provide the proper documentation to back up such a finding. However,
Kansas did not properly analyze whether the Kansas sources' existing
measures are necessary for reasonable progress and thus a part of their
LTS for the second planning period. The 2021 Clarifications Memo states
``the existence of an enforceable emission limit or other enforceable
requirement reflecting a source's existing measures may also be
evidence that the source will continue implementing those measures. . .
. States should provide information on any enforceable emission limits
associated with sources' existing measures.'' 2021 Clarifications Memo
at 9. The SIP should further identify the applicable permits and the
relevant limits and provide a copy of the underlying permit with the
SIP submission, if it is not publicly available. Id. at 9-10. Without
this information, which is an integral part of the LTS, the SIP is
deficient, and the EPA cannot approve the submission.
Kansas Utilities' Comment 6: The commenters stated that as Kansas
was concluding the regional haze SIP revision process for the first
planning period, it was recognized by all those involved that Evergy
was going above and beyond the emission reductions required for the
first regional haze planning period. Evergy asserted that there was
recognition that these additional emission reductions or ``reasonable
progress emission reductions'' would be utilized in the future to aid
Kansas in complying with the second regional haze planning period.
Response to Kansas Utilities' Comment 6: The EPA recognizes that
Kansas made significant emissions reductions during the first planning
period. However, beginning in 2015 and concluding in 2017, the EPA
revised the RHR. As previously stated throughout this document, the
revised rule clearly requires all States to have a LTS where the States
evaluate and determine the emission reduction measures that are
necessary for reasonable progress by considering the four statutory
factors, and the emission reduction measures that are necessary for
reasonable progress need to be Federally enforceable. The revised rule
did not codify any exemption or use of early reductions for emission
sources, or its predecessors or successors. Since Kansas did not select
sources to evaluate for further controls, the EPA cannot evaluate any
claims regarding certain sources, or groups of sources.
IV. What action is the EPA taking?
The EPA is taking final action to disapprove Kansas's SIP revision
related to the regional haze requirements for the second planning
period. Disapproval does not trigger imposition of mandatory sanctions.
The effective date of this action does trigger an obligation for the
EPA to issue a FIP within two years.
V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, the EPA's role is to approve State choices,
provided that they meet the criteria of 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:
<bullet> Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);
<bullet> Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
<bullet> Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
<bullet> Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
<bullet> Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
<bullet> Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001); and
<bullet> Is not subject to requirements of the National Technology
Transfer and Advancement Act (NTTA) because this action does not
involve technical standards; and
<bullet> This action does not have Tribal implications as specified
in Executive Order 13175. This action does not apply on any Indian
reservation land, any other area where the EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction, or non-reservation areas of
Indian country. Thus, Executive Order 13175 does not apply to this
action.
<bullet> Executive Order 12898 (Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations, 59 FR 7629, February 16, 1994) and Executive Order 14096
(Revitalizing Our Nation's Commitment to Environmental Justice for All,
88 FR 25251, April 21, 2023) directs Federal agencies to identify and
address ``disproportionately high and adverse human health or
environmental effects'' of t/heir actions on minority
[[Page 64383]]
populations and low-income populations to the greatest extent
practicable and permitted by law. The EPA defines environmental justice
(EJ) as ``the fair treatment and meaningful involvement of all people
regardless of race, color, national origin, or income with respect to
the development, implementation, and enforcement of environmental laws,
regulations, and policies.'' The EPA further defines the term fair
treatment to mean that ``no group of people should bear a
disproportionate burden of environmental harms and risks, including
those resulting from the negative environmental consequences of
industrial, governmental, and commercial operations or programs and
policies.''
KDHE did not evaluate environmental justice considerations as part
of its SIP submittal; the CAA and applicable implementing regulations
neither prohibit nor require such an evaluation. The EPA did not
perform an EJ analysis and did not consider EJ in this action. Due to
the nature of the action being taken here, this action is expected to
have a neutral impact on the air quality of the affected area.
Consideration of EJ is not required as part of this action, and there
is no information in the record inconsistent with the stated goal of
E.O. 12898 of achieving environmental justice for people of color, low-
income populations, and Indigenous peoples. While the Conservation
Groups did adversely comment that the EPA should consider EJ, they did
not provide any different steps or outcomes the EPA should take or
arrive at. See our response to comments document in the docket for this
action.
This action is subject to the Congressional Review Act, and the EPA
will submit a rule report to each House of the Congress and to the
Comptroller General of the United States. 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 October 7, 2024. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements (see section 307(b)(2)).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: July 30, 2024.
Meghan A. McCollister,
Regional Administrator, Region 7.
[FR Doc. 2024-17182 Filed 8-6-24; 8:45 am]
BILLING CODE 6560-50-P
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</html>Indexed from Federal Register on August 7, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.