OUG members have felt the effects of EPA's blind leap into the highly technical realm of state implementation. The Dayton Power and Light Company ('DP&L') is an Ohio public utility that owns generation units and provides electric distribution services to deliver electric energy to approximately 500,000 customers in west-central Ohio. Two of its largest facilities, the Stuart Station, comprised of four generating units with an aggregated capacity of approximately 2400 Megawatts (MW) and the Killen Station, comprised of one 600 MW generating unit, each face emissions limitations that are unachievable with their current Nox control equipment. [EPA-HQ-OAR-2009-0491-2679.1, p.3]
The Stuart Station is subject to a 2009 consent decree that sets NOx limits at 0.17Ibs/mmBtu with an expectation that additional control equipment would be installed and that NOx would be limited to 0.10 Ibs/mmBtu by January 2015. However, under the proposed Transport Rule, the Stuart Station is required to comply with an unrealistic emissions budget level of less than 0.06 Ibs/mmBtu by January 2012. The end result is equally unrealistic for the Killen Station. Killen had an SCR installed in 2003 that was designed to achieve 0.12IbNOx/mmBtu. The proposed rule provides Killen a budget allocation that assumes that it could operate at less than 0.06 Ib-NOx/mmBtu level, far below its current capability. [EPA-HQ-OAR-2009-0491-2679.1, p.3]
The Ohio Valley Electric Corporation ('OVEC') faces similar consequences. OVEC does not dispute the NOx controls EPA assumes for the five Kyger Creek units - each being equipped with SCRs and over fire air. However, the emissions limitations imposed on Kyger Creek under the proposed rule place the facility in a position of assured failure. Comparing estimated annual NOx emissions at historic heat inputs to proposed Transport Rule allocations illustrates the severity of the problem. For example, in 2009, Kyger Creek's estimated Nox emissions were .098 Ib/mmBtu, and 3,229.5 tons; under the proposed transport rule, Kyger Creek would have received allocations for only 2,939 tons, an equivalent of .089 Ib/mmBtu. [EPA-HQ-OAR-2009-0491-2679.1, p.3]
With respect to FGD controls, EPA defaulted to a 98% removal criteria. However, are view of the most recent data shows that 98% removal is ambitious even for the newest technology and would be nearly impossible for units with older FGD equipment. For example, members of the American Electric Power system ('AEP') have units equipped with FGD systems proven effective in reducing emissions, but simply cannot achieve the reductions in the required timeframe under the proposed rule. AEP suggests that the scrubber efficiency at Gavin Units 1 and 2 be reduced to 94.5%. Furthermore, the most recent information from Duke Energy at the co-owned Zimmer unit indicates a scrubber efficiency of 93%. The effectiveness of all equipment is subject to several variables such as vintage and design. As such, the Utilities object to the appropriateness of defaulting one all-encompassing removal criteria, especially one as high as 98%. [EPA-HQ-OAR-2009-0491-2679.1, p.3]
The precision and acute level of detail associated with regulating at the source level manifests itself in all aspects of EGU operations, and the importance of maintaining accuracy cannot be ignored. One faulty assumption can have a detrimental impact on the facility. Furthermore, a mistake at one unit creates a ripple effect for all units across the state. Ohio officials have familiarity with the operational tendencies of the EGUs operating within the state and, thus, are better positioned to negotiate the intricacies of unit-by-unit emissions limitations. [EPA-HQ-OAR-2009-0491-2679.1, pp.3-4]
The impact of this rule is far greater than EPA seems to appreciate. EPA has exceeded its authority under the CAA, attempting to federalize a state responsibility. Furthermore, EPA has made several incorrect assumptions which have a direct effect on a state's 'significant contribution,' cost thresholds, and budget allocations. EPA's faulty assumptions have also caused EPA to gloss over several practical implications. Most notably, recent modeling performed by MaG shows that less stringent emissions reductions are appropriate. To avoid any negative effects, EPA should revise the rule according to the Utilities' suggestions. [EPA-HQ-OAR-2009-0491-2679.1, p.8]
Response:
For the reasons explained in this section of this RTC, in section IV.C.2 of the preamble to the final rule and in the TSD entitled "Status of CAA 110(a)(2)(D)i)(I) SIPs," EPA has a legal obligation to promulgate all of the FIPs in this rule.  The statute also explicitly recognizes that a FIP promulgated by EPA may include emission trading programs and enforceable emission limitations.  See, 42 U.S.C. § 7602(y) (definition of a FIP).  Further, the final Transport Rule does not establish source specific emission limits, but instead establishes an interstate emissions trading program with assurance provisions to ensure the required reductions occur within each covered state.  The initial allocations of allowances to units in the trading programs do not determine the permissible level of operation or emissions for a particular unit as allowances may be acquired either via initial allocations or they may be acquired subsequently in the marketplace.  The specific allowance allocation methodology selected for use in the final rule is explained in section VII.D of the preamble to the final rule.
In response to comments regarding removal efficiency assumptions, EPA made some changes to the assumptions used in the modeling for the final rule.  These issues are discussed in the IPM v.4 documentation entitled "Documentation Supplement for EPA Base Case v. 4.10_FTransport-Updates for Final Transport Rule" and in the RTC appendix section entitled "Transport Rule IPM Assumptions Response to Comments."
Organization: Ohio Valley Electric Corporation and Indiana-Kentucky Electric Corporation
Comment:
Ohio Valley Electric Corporation and Indiana-Kentucky Electric Corporation
The states that have not received a notice of deficiency must be given the opportunity afforded by the Act to revise their SIPs to correct the flaws in CAIR identified by the court in North Carolina v. EPA. EPA's NODA proposal regarding SIPs does not acknowledge this process. EPA must follow the process prescribed by law. [EPA-HQ-OAR-2009-0491-4010[1].1, p.7]
Legal Deficiencies in EPA's Proposed Transport Rule [EPA-HQ-OAR-2009-0491-2803.1, p.9]
In addition to the serious problems identified above in the application of the proposed rules to the Kyger Creek and Clifty Creek plants, the proposed rules are also substantially flawed in the following respects. [EPA-HQ-OAR-2009-0491-2803.1, p.9]
EPA May Not Proceed with a Federal Implementation Plan without First Finding that the State Implementation Plans are Deficient and Providing an Opportunity to the States to Address the Deficiencies [EPA-HQ-OAR-2009-0491-2803.1, p.9]
A fundamental legal flaw in the proposal is that it is presented as a federal implementation plan that will take immediate effect. That is directly contrary to Section 110(k)(5) of the Act, providing that when a state plan is inadequate with regard to interstate transport, the Administrator 'shall require the State to revise the plan as necessary to correct such inadequacies. The Administrator shall notify the State of the inadequacies, and may establish reasonable deadlines. .. for submission of such plan revisions.' (Emphasis added.) These procedures are mandatory, and may not be circumvented through immediate imposition of a federal plan. Indeed, a federal plan may not be imposed prior to two years after the Administrator finds that a state plan is deficient or disapproves a state plan that is submitted for approval, Section 110(c). Thus, this proposed federal plan may not be lawfully imposed on states that presently have approved plans that have not been subsequently found by the Administrator to be. deficient. [EPA-HQ-OAR-2009-0491-2803.1, pp.9-10]
Both Ohio (as to the Kyger Creek plant) and Indiana (as to the Clifty Creek plant) currently have approved interstate transport implementation plans for which there have been no subsequent notices of deficiency by the Administrator. Ohio recently received a 'full SIP' approval on September 25, 2009 for its rules that fully implement CAIR. 74 Fed. Reg. 48,857. This was preceded by approval of a partial ('abbreviated') SIP on February 1, 2008, consisting of state rules that implemented a portion of CAIR. 73 Fed.Reg. 6,034. Indiana received an abbreviated SIP approval of a portion of CAIR on October 22,2007. 72 Fed. Reg. 59,480. None of these approved transport SIPs have been found to be deficient by the Administrator. Accordingly, all remain in place and effective in these states, and still apply to the Kyger Creek and Clifty Creek plants. [EPA-HQ-OAR-2009-0491-2803.1, p.10]
As to the 2006 NAAQS establishing a 24-hour standard for fine particulates, both Ohio and Indiana submitted transport plans that are under review. On June 9, 2010, EPA published a notice to those states that had not submitted transport plans, which did not include Ohio or Indiana, and informed those states that the deficiency notice 'establishes a 2-year deadline for promulgation by EPA of a FIP, in accordance with Section 11 0(c)(1), for any state that either does not submit or EPA cannot approve a SIP.' 75 Fed. Reg. 32,673. Thus, in that notice, EPA clearly acknowledged the applicability of the process by which EPA must first find a state SIP to be deficient before it may proceed, after two years, to promulgate a federal plan. [EPA-HQ-OAR-2009-0491-2803.1, p.10]
EPA's proposal argues that the Administrator may dispense with the mandatory procedure of finding those plans to be deficient and providing Ohio and Indiana the opportunity to revise their SIPs to address the deficiencies before proceeding with a federal implementation plan, due to the court's decision in North Carolina v. EPA, 531F.3d 896 (D.C.Cir., 2008) that found CAIR to be unlawful. 75 Fed. Reg. 45,341,45,342. EPA reasons that this judicial disapproval of federal CAIR rules in effect also nullified the Administrator's approval of state SIPs that implemented CAIR, and restored the status quo ante of the Administrator's pre-CAIR notice of deficiency of state transport SIPs that were issued in 2005. But this reliance upon the court's decision in North Carolina to disregard language in the Act is wholly misplaced. Although the court's decision surely gave the Administrator grounds for finding deficient those state CAIR based SIPs that the Administrator had approved (including Ohio's and Indiana's), the decision did not authorize the Administrator to disregard her statutory duty to issue such notices of deficiency and allow the states to submit new plans prior to imposing a federal plan. Moreover, that mandated process is not an empty exercise. Ohio, Indiana, and all similarly-situated states, must be given the opportunity afforded by the Act to revise their SIPs to correct the flaws in CAIR identified by the court in its decision. The states should be allowed to fashion a plan that meets the requirements of law in a manner that, in the states' judgment (not EPA's), best conforms to the states' preferences and regulatory policies. EPA may not lawfully skip over that process and proceed immediately to a federal plan. [EPA-HQ-OAR-2009-0491-2803.1, pp.10-11]
Accordingly, EPA should withdraw this proposal and proceed with the process required by the Act. [EPA-HQ-OAR-2009-0491-2803.1, p.11]
The 2012/2014 Emission Reduction Deadlines Are Unattainable, Unreasonable, and Not Mandated by Law [EPA-HQ-OAR-2009-0491-2779.1, p.11]
As discussed above, the emission reduction deadlines cannot be met at the Kyger Creek and Clifty Creek plants. Moreover, they are not mandated by law. Section 110(c) provides no constraints on the Administrator in setting deadlines for achieving emission reductions mandated by a federal plan. Thus, the Administrator must choose deadlines that are practically achievable, and neither arbitrary nor capricious. The deadlines in this proposed plan must therefore be extended to provide a reasonable opportunity to affected facilities to install required emission reduction technology. [EPA-HQ-OAR-2009-0491-2779.1, p.11]
The rationale for the deadlines offered by EPA in the preamble is inadequate. EPA explains that the deadlines were selected so that emissions would be reduced on or before the dates for attaining the 1997 and 2006 ambient air quality standards in the areas affected by the upwind emissions. 75 Fed. Reg. 45,300, 45,301. However, the Act does not mandate that emission reductions in a federal plan that is imposed as a substitute for an inadequate state plan must be achieved on or before NMOS attainment dates. The Act could not rationally do so, since such dates may have passed before the Administrator finds a state plan to be deficient and imposes a federal plan to address the deficiency. In the present circumstance, the federal plan is proposed prior to the attainment dates, but so close to those dates that emission reductions cannot practically be achieved in advance of those dates. Importantly, any failure to meet attainment dates cannot be blamed on failure to mitigate interstate transport in accordance with federally approved transport plans in Ohio and Indiana. In such a circumstance, to require emission reductions on or before the NMOS attainment dates rather than when the reductions can be practically achieved is surely arbitrary and capricious. [EPA-HQ-OAR-2009-0491-2779.1, p.11]
Contrary to preamble, the court in North Carolina v. EPA did not hold that emission reduction deadlines in a federal plan must always precede applicable NMOS attainment dates. The court found that state plans must prevent significant contribution to downwind nonattainment by the NMOS attainment deadline, and faulted EPA for failing to 'make any effort to harmonize CAIR's Phase Two deadline' with the 2010 NMOS attainment date. North Carolina, 531 F.3d. at 912. However, the court did not hold that the NAAQS attainment date is an inflexible legally mandated deadline for all federal plans imposed as a substitute for deficient state plans. In the present situation, in which a federal plan is proposed too close to NAAQS attainment dates to allow emitters to reduce emission by those dates, surely the court would not demand the impossible and disapprove the federal plan. Congress could not possibly have intended that result, and the text of the Act does not require it. [EPA-HQ-OAR-2009-0491-2779.1, pp.11-12]
Accordingly, EPA should extend the emission reduction deadlines to provide adequate time to reduce emissions. [EPA-HQ-OAR-2009-0491-2779.1, p.12]
Response:
As explained above, the question of whether EPA has authority to promulgate each FIP in this action must be evaluated on a FIP by FIP basis as the states covered by the Transport Rule are not similarly situated with respect to the 110(a)(2)(D)(i)(I) SIP requirements, and individual states are not always similarly situated with respect to the 110(a)(2)(D)(i)(I) SIP requirements for different pollutants.  EPA explains in section IV.C.2 of the preamble to the final rule and in the TSD entitled "Status of CAA 110(a)(2)(D)i)(I) SIPs" the reasons why EPA has a legal obligation to promulgate all of the FIPs in this rule, including the FIPs addressing the requirements of 110(a)(2)(D)(i)(I) with respect to the 1997 ozone NAAQS, the 1997 PM2.5 NAAQS and the 2006 PM2.5 NAAQS for Indiana, and the FIPs addressing the requirements of 110(a)(2)(D)(i)(I) with respect to the 1997 ozone NAAQS, the 1997 PM2.5 NAAQS and the 2006 PM2.5 NAAQS for Ohio.  Further, sections VI and VII of the preamble to the final rule explain the rationale supporting EPA's decision to use the compliance deadlines in the final rule and the importance of aligning compliance dates with NAAQS attainment deadlines.
Organization: Oklahoma Gas & Electric Company (OG&E)
Comment:
Oklahoma Gas & Electric Company (OG&E)
OG&E hereby incorporates the comments submitted by The Class of ' 85 Regulatory Response Group on the Proposed Transport Rule. OG&E also submits these additional comments separately to emphasize its concern regarding the unique position that Oklahoma is in with respect to EPA's authority for this action. As discussed in more detail below, EPA cannot adopt the Proposed Rule for Oklahoma because the normal procedure set forth in the Clean Air Act ('CAA') for state implementation of minimum federal requirements have not been observed. [EPA-HQ-OAR-2009-0491-2708.1, p.1]
In the Transport Rule, EPA proposes to finalize a Federal Implementation Plan ('FIP') to address interstate transport for sources in the State of Oklahoma without ever providing the State a meaningful opportunity to develop a State Implementation Plan ('SIP') addressing interstate transport requirements under CAA section 110(a)(2)(D)(i)(II). EPA claims the promulgation of this FIP 'would in no way affect the right of states to submit ... a SIP that replaced the federal requirements of a FIP ... ' 75 Fed. Reg. at 45,342. EPA's reasoning, however, is plainly contrary to the background for this proposed rulemaking and the language of the CAA. [EPA-HQ-OAR-2009-0491-2708.1, p.2]
A basic tenet of the CAA is that EPA may promulgate FIPs only where states fail to develop and submit SIPs that meet minimum federal requirements. Among the minimum criteria a SIP must satisfy are the two 'good neighbor' provisions in section 110(a)(2)(D)(i) of the Act. First, a SIP must prohibit sources in the state from contributing significantly to nonattainment in, or interfering with maintenance by, any other state with the NAAQS. CAA § 110(a)(2)(D)(i)(I). Second, a SIP must prohibit sources from interfering with measures in any other state's SIP to prevent significant deterioration ('PSD') or protect visibility. CAA § 110(a)(2)(D)(i)(1I). [EPA-HQ-OAR-2009-0491-2708.1, p.2]
The Act contemplates that EPA may develop a FIP for these requirements only after states have been given a meaningful opportunity to develop and submit SIPs. In CAA section 110(a)(2), the Act vests states, not EPA, with primary responsibility for developing requirements for interstate transport. CAA 110(a)(2). Where a state initially fails to fulfill its responsibility, the Act directs EPA to 'require the State to revise the plan as necessary to correct such inadequacies.' CAA § 110(k)(5). EPA must 'notify the State of the inadequacies, and may establish reasonable deadlines . .. for the submission of such plan revisions' ld. (emphasis added). After undergoing these procedures, EPA has authority to promulgate a FIP two years after the Administrator (i) finds that a state has failed to submit a SIP or has submitted a SIP that does not satisfy the minimum criteria set forth in section 110 of the Act; or (ii) disapproves a SIP in whole or in part, unless the state has corrected the deficiency and the Administrator has approved the SIP. CAA § 110(c)(l). [EPA-HQ-OAR-2009-0491-2708.1, p.2]
On April 25, 2005, EPA issued a general finding that all 50 states, the District of Columbia, and three U.S. territories had failed to submit SIPs to satisfy the interstate transport requirements of CAA section 110(a)(2)(D)(i) for the 1997 ozone and PM2.5 National Ambient Air Quality Standards ('NAAQS'). 70 Fed. Reg. 21,147. The finding did not specify how each state failed to satisfy one or both of the good neighbor provisions in CAA section 110. Rather, EPA provided only general notice that no state had submitted any SIP revision to address interstate transport. [EPA-HQ-OAR-2009-0491-2708.1, p.2]
One month after issuing the SIP finding of deficiency, however, EPA provided a definitive finding on the first of the good neighbor provisions dealing with NAAQS compliance. The final Clean Air Interstate Rule ('CAIR'), issued May 12, 2005, identified those states which EPA found were required to submit a SIP revision to comply with the first of the CAA 'good neighbor' provisions in CAA section 110(a)(2)(D)(i)(I). See 70 Fed. Reg. 25,162, 25,319 ('the Administrator determines that each State identified in paragraph (c)(I) and (3) of this section must submit a SIP revision to comply with the requirements of section 110(a)(2)(D)(i)(I) of the CAA ....'). The State of Oklahoma was not included on the list and, as a result, never developed a CAIR SIP. The State fulfilled its responsibilities for the other 'good neighbor' provision, dealing with PSD and visibility, by submitting a SIP revision to EPA on May I, 2007. EPA issued a proposed rule to approve that SIP revision on September 17, 2010. 75 Fed. Reg. 56,923. [EPA-HQ-OAR-2009-0491-2708.1, p.2]
In the Proposed Transport Rule, EPA incorrectly claims that its general finding of SIP deficiency in 2005 'remain[s] in force' for states, like Oklahoma, that were not covered by CAIR. 75 Fed. Reg. at 45,342. EPA ignores the fact that the 2005 finding did not provide any state-specific information, whereas the final CAIR specifically identified which states were required to submit SIP revisions under CAA section 110(a)(2)(D)(i)(I). Oklahoma was not included on the list and, therefore, had no cause to develop an interstate transport SIP to implement section 110(a)(2)(D)(i)(I). The general finding of deficiency in 2005 also could not be used to support the adoption of the Transport Rule for Oklahoma under section 110(a)(2)(D)(i)(II) because EPA recently proposed approval of a SIP to address those requirements. [EPA-HQ-OAR-2009-0491-2708.1, p.3]
EPA may not promulgate a FIP for the State of Oklahoma under CAA section 110(a)(2)(D)(i)(II) where the State has never before been found to require a SIP revision for interference with NAAQS compliance in other states. The CAA does not allow EPA to leapfrog state authority in this fashion. Instead, Oklahoma must be given a meaningful opportunity to develop a SIP revision to comply with CAA section 110(a)(2)(D)(i)(1) before EPA may promulgate a FIP for the State. [EPA-HQ-OAR-2009-0491-2708.1, p.3]
Response:
For the reasons explained in this section of this RTC, in section IV.C.2 of the preamble to the final rule and in the TSD entitled "Status of CAA 110(a)(2)(D)i)(I) SIPs," EPA has a legal obligation to promulgate each of the FIPs in this final rule.  Further the commenter misrepresents the requirements of section 110(a)(2)(D)(i)(I) of the Clean Air Act.  This section requires all states to submit SIPs sufficient to prohibit all emissions within the state that significantly contribute to nonattainment or interfere with maintenance of the NAAQS in another state.  This requirement, like the findings of failure to submit made in 2005, applies equally to all states.
Organization: Pfeiff, Mike
Comment:
Pfeiff, Mike
8. Beyond Existing Statutory Authority - The EPA unlawfully derives it's authority to regulate SO2 emitted EGUs in the Proposed Transport Rule from section 110(a)(2)(D) of the CAA. 75 Fed. Reg. at 45,218. Section 100(a)(2)(D) requires State Implementation Plans ('SIPs') to ...
contain adequate provisions - (i) prohibiting, consistent with the provisions of this subchapter, any source or other type of emissions activity within the State from emitting any air pollutant in amounts which will - (I) contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to any [National Ambient Air Quality Standards]. [EPA-HQ-OAR-2009-0491-2742.1, p.7]
[For additional comments pertaining to Beyond Existing Statutory Authority, see pages 7-8 of this comment.]
I request that the EPA provide the legal rational to regulate EGU S02 emissions under the Proposed Transport Rule without any evidence of SO2 NAAQS violations. I further request the EPA to provide legal rational for its contention that it has the authority to issue new regulations for EGU regulations when existing CAA statutes clearly set forth specific regulations for S02 for this source category. [EPA-HQ-OAR-2009-0491-2742.1, p.8]
9. Existing Statutory Solution to Interstate Transport Pollution - Section 126(b) of the CAA, provides the EPA with a mechanism for dealing with the interstate transport of pollution. Section 126(b) provides states or political subdivisions with the option to petition the Administrator of the EPA for relief from pollution transported into their jurisdiction. Under section l26(b) the EPA has the obligation to make a finding within 60 days. [EPA-HQ-OAR-2009-0491-2742.1, p.8]
I request that the EPA explain why it has the discretion to not fulfill its existing statutory obligation under section 126(b) and instead elect to establish a massive and complex new government program for emissions from a source for which the CAA provides clear language for the structure of regulations. [EPA-HQ-OAR-2009-0491-2742.1, p.8]
10. Provide Congress with a Legislative Solution - During multiple recent testimony before the United States Senate Clean Air and Nuclear Safety subcommittee hearings since CAIR was vacated by the DC Circuit Court of Appeals, various members of Congress have asked EPA officials what additional new statutory authorities the EPA needed to promulgate a replacement rule for CAIR in a way that preserves the spirit of the market oriented program previously established by Congress in Title IV of the CAA. In response to these queries from Congress, EPA officials gave the standard 'at this time we are continuing to do analysis so I don't know and will have to get back to you Senator' answer. Remarkably, to this date the EPA has completely disregarded, at least publicly, these inquire from Congress. While Congress' inquires are suggesting of the importance in preserving the spirit of the Title IV program, the EPA's Transport Rule seems to be purposely dismantling it despite Congress's expressed desire to consider granting authorities. The EPA has claimed that they have worked with Congress by providing analytical support by modeling various legislative solutions proposed by Senator Tom Carper but the EPA has not officially provided answers to Congress questions. [EPA-HQ-OAR-2009-0491-2742.1, p.8]
I request that the EPA answer Congresses repeated request to provide it with the required new authorities needed to promulgate a CAIR replacement rule that operated in harmony with the existing ARP established by Title IV of the CAA. [EPA-HQ-OAR-2009-0491-2742.1, p.8]
Response:
EPA appreciates your interest in this rule and in protection of the environment.  For the reasons explained in this section of this RTC, in section IV.C.2 of the preamble to the final rule and in the TSD entitled "Status of CAA 110(a)(2)(D)i)(I) SIPs," EPA has a legal obligation to promulgate all of the FIPs in this rule.  EPA has an obligation to implement the Clean Air Act as enacted by Congress.  EPA does not have authority to alter requirements in the Act.  EPA's obligation to promulgate FIPs must be discharged unless a state submits a SIP that cures the existing SIP deficiency and EPA approves such a SIP.  Finally, as explained in greater detail in section V.A. of the preamble to the final rule, EPA regulates SO2 in this action because it is a PM2.5 precursor.
Organization: PPG Industries, Inc.
Comment:
PPG Industries, Inc.
EPA Should Allow Louisiana Sufficient Time to Submit a SIP in Lieu of the Proposed FIP  The Clean Air Act was intended by Congress to establish a model of cooperative federalism wherein states have the primary responsibility for air pollution control and EPA is to act only in the clear absence of state action. This is not one of those cases. Louisiana has acted to prevent interstate transport of emissions that could affect attainment of NAAQS ind downwind states and should be given a reasonable opportunity to submit any necessary SIP improvements. EPA's preemptive action of proposing this SIP does not provide Louisiana with the deference accorded to states under the Clean Air Act.[EPA-HQ-OAR-2009-0491-2763.1, p. 8; see pp. 8-11 for extensive discussion of this issue.]
Response:
This final rule is consistent with and implements the system of cooperative federalism established in the Clean Air Act.  For the reasons explained in this section of this RTC, in section IV.C.2 of the preamble to the final rule and in the TSD entitled "Status of CAA 110(a)(2)(D)i)(I) SIPs," EPA has a legal obligation to promulgate all of the FIPs in this rule.
Organization: Progress Energy Service Company
Comment:
Progress Energy Service Company
A later initial compliance date also would allow sufficient time for states to develop State Implementation Plans (SIPs) for implementation of the Transport Rule and therefore avoid the need for EPA to promulgate the rule as a Federal Implementation Program (FIP). The opportunity to replace federal requirements with a state plan at some point in the future does not satisfy the requirement that EPA allow the opportunity for states to craft their own plans, at the outset of the program, to comply with the Transport Rule. EPA's proposal would effectively bypass the states, at least with respect to the first phase of the program. The following section elaborates further on the SIP/FIP process as set forth by Congress. [EPA-HQ-OAR-2009-0491-2831.1 p.3-4] [[These comments can also be found in Section VII.C.]]
The CAA contemplates that states will have the opportunity to develop SIPs and to submit them to EPA for review and approval before implementation of a new or revised NAAQS. According to the CAA, EPA may promulgate a FIP within two years after the Administrator (i) finds that a state has failed to submit a SIP or has submitted a SIP that does not satisfy the minimum criteria set forth in section 110 the Act, or (ii) disapproves a SIP in whole or in part, unless the state corrects the deficiency. CAA § 110(c)(l). Section 110 states that:
Whenever the Administrator finds that the [SIP] for any area is substantially inadequate to attain or maintain the relevant fNAAQS], to mitigate adequately the interstate pol/urion transport described in [section 176A or section 184 of the Act], or to otherwise comply with any requirement of [the Act], the Administrator shall require the State to revise the plan as necessary to correct such inadequacies. The Administrator shall notify the State of the inadequacies, and may establish reasonable deadlines ... for the submission of such plan revisions. [EPA-HQ-OAR-2009-0491-2831.1 p.4]
CAA § 11O(k)(S) (emphasis added). The CAA grants no authority to EPA to promulgate a FIP without first giving the states an opportunity to develop and submit SIPs. Thus, the Proposed Transport Rule FIPs are contrary to the tenns of the CAA and would abrogate the rights of the states that Congress established. [EPA-HQ-OAR-2009-0491-2831.1 p.4]
Response:
For the reasons explained in this section of this RTC, in section IV.C.2 of the preamble to the final rule and in the TSD entitled "Status of CAA 110(a)(2)(D)i)(I) SIPs," EPA has a legal obligation to promulgate all of the FIPs in this rule.  Further, sections VI and VII of the preamble to the final rule explain the rationale supporting EPA's decision to use the compliance deadlines in the final rule and the importance of aligning compliance dates with NAAQS attainment deadlines.
Organization: PSEG Services Corporation
Comment:
PSEG Services Corporation
PSEG believes the proposed Transport Rule appropriately addresses the legal requirements set out in the D.C. Circuit's decision vacating the Clean Air Interstate Rule ("CAIR"), North Carolina v. EPA. As noted above, the Clean Air Act requires states to ensure they do not significantly contribute to downwind states' nonattainment and interference with maintenance. The proposed rule satisfies that legal obligation and addresses the additional flaws identified by the D.C. Circuit. [EPA-HQ-OAR-2009-0491-2627.1, p.3]
The use of Federal Implementation Plans ("FIPs") to implement the program is authorized under the Clean Air Act. While states have authority to, and may, submit State Implementation Plans ("SIPs") to replace the FIPs, we agree with EPA's assertion that due to time concerns, states are unlikely to be able to complete these plans before implementation of the Transport Rule on January 1, 2012. We believe it is very important to engage the Transport Rule in 2012. [EPA-HQ-OAR-2009-0491-2627.1, p.3]
Response:
EPA agrees with the commenter that EPA has authority, under the Clean Air Act, to promulgate the FIPs included in this final action.
Organization: San Miguel Electric Cooperative, Inc.
South Carolina Department of Health and Environmental Control
Comment:
San Miguel Electric Cooperative, Inc.
 The Clean Air Act (CAA) mandates that states be given a reasonable opportunity to develop their own plans through the state implementation plan (SIP) process to address interstate transport. The proposal implements an FIP with a possible SIP in the future. States should be given the opportunity to implement an SIP, using CAA guidelines, with an FIP as the back up for states not implementing an SIP.  [EPA-HQ-OAR-2009-0491-2641.1, p.6]
South Carolina Department of Health and Environmental Control
DHEC contends that a FIP is unnecessary, and it implies that a state has not met its Clean Air Act obligations. States are required to submit SIPs that address CAA section 110(a)(2) three years after the promulgation of a new NAAQS. If states fail to submit SIPs that address section 110(a)(2), then the EPA can issue a FIP. In the proposed Transport Rule, the EPA contends that SIP submittals that rely on the CAIR to address CAA section 110(a)(2), even SIPs that the EPA has approved, fail to meet the requirements of section 110(a)(2) because of the Court's remand of the CAIR.37 The EPA is proposing to usurp states' role in this important part of air quality management, not because of any failure by the states, but because of the Court's remand of an EPA rule. DHEC would rather address the Transport Rule through a SIP, as it did under the CAIR. Even though the EPA has indicated it will not impose any sanctions with this FIP,38 DHEC prefers the local control and flexibility that the SIP offers over a centralized FIP. DHEC recognizes that the EPA is concerned about the delay that Transport Rule SIPs would cause. If that concern over a delay is insurmountable and the EPA promulgates this final rule as a FIP, then DHEC requests that the EPA also allow states to use the SIP process to implement Transport Rule II, the rule that will incorporate the emissions reductions required to meet the 2010 Ozone Standard. [EPA-HQ-OAR-2009-0491-2677.1 p.17]
Response:
As explained in this section of the RTC, in section IV of the preamble to the final rule and in the TSD entitled "Status of CAA 110(a)(2)(D)(i)(I) SIPs," EPA has a legal obligation to promulgate the FIPs in this final rule.
Organization: Santee Cooper
Comment:
Santee Cooper
EPA either should determine that the Transport Rule provides a basis for denying North Carolina's pending Section 126 petition, or explain why it does not. [EPA-HQ-OAR-2009-0491-2820.1, p.2]
EPA should give states sufficient opportunity to prepare State Implementation Plans (SIPs) before imposing Federal Implementation Plans (FIPs). [EPA-HQ-OAR-2009-0491-2820.1, p.11]
EPA EITHER SHOULD DETERMINE THAT THE TRANSPORT RULE PROVIDES A BASIS FOR DENYING NORTH CAROLINA'S SECTION 126 PETITION, OR EXPLAIN WHY IT DOES NOT. [EPA-HQ-OAR-2009-0491-2820.1, p.11]
In a 2006 rulemaking, EPA denied a section 126 petition from the State of North Carolina. The North Carolina petition had asserted that EGUs in several states were complicating North Carolina's attainment of the 1997 National Ambient Air Quality Standard (NAAQS) for fine particulate matter and the 1997 NAAQS for 8-hour ozone. EPA denied North Carolina's petition on the grounds that the CAIR would provide a complete remedy to North Carolina's transport concerns. The Agency explained: 'once EPA has taken action to eliminate the SIP deficiencies by approving SIPs which implement CAIR (i.e., which eliminate the significant contribution), or itself promulgates a CAIR FIP for states with SIP deficiencies, there is no longer a cause of action under section 126." EPA adopted a similar approach in the NOx SIP Call, denying eight section 126 petitions on the basis of promulgation of a SIP call that would remedy the alleged transport problems; the Agency further asserted that it was appropriate to defer direct federal action under Section 126 as long as states were on track with the process of revising SIPs to comply with requirements to address transport. [EPA-HQ-OAR-2009-0491-2820.1, p.13]
The State of North Carolina was one of the parties that petitioned for review of the CAIR, raising several objections to its legal validity. After the D.C. Circuit remanded the CAIR in the North Carolina decision, the court subsequently remanded for reconsideration the Agency's denial of North Carolina's section 126 petition. In its remand, the court observed that EPA had conceded that the invalidation of the CAIR had eliminated the legal basis of the agency's denial of the North Carolina petition. [EPA-HQ-OAR-2009-0491-2820.1, p.12]
The proposed Transport Rule purports to respond to the North Carolina decision, including the objections raised by the State of North Carolina itself. Among other things, the EPA proposal includes deeper reductions in SO2 and NOx emissions than were required under the CAIR, establishes a different approach to emissions trading, and addresses the requirement that State Implementation Plans ensure that sources do not 'interfere with maintenance' requirement in section 110 of the Act. In these respects, it appears to address all of North Carolina's claims regarding the invalidity and inadequacy of the CAIR as a transport remedy. Yet, the proposed Transport Rule is silent on North Carolina's section 126 petition. [EPA-HQ-OAR-2009-0491-2820.1, p.12]
As with the BART requirements, the proposed Transport Rule's silence regarding North Carolina's section 126 petition casts a shadow of uncertainty over compliance planning by states and utilities. The failure to address the petition also represents a missed opportunity for coordinating and rationalizing what EPA itself has acknowledged are a significant number of new environmental rules and obligations coming at the power sector in the next two years. [EPA-HQ-OAR-2009-0491-2820.1, p.12]
For these reasons, Santee Cooper urges the Agency either to determine that the Transport Rule provides a legal basis for denial of North Carolina's section 126 petition with respect to the 1997 fine particulate matter and 8-hour ozone NAAQS - or explain why it does not. [EPA-HQ-OAR-2009-0491-2820.1, p.12]
EPA SHOULD GIVE STATES SUFFICIENT OPPORTUNITY TO PREPARE SIPs BEFORE IMPOSING FIPs. [EPA-HQ-OAR-2009-0491-2820.1, p.12]
Under the proposed Transport Rule, EPA all but immediately imposes Federal Implementation Plans (FIPs) on the covered states, depriving them of an opportunity to develop State Implementation Plans (SIPs) that could address interstate transport. This arrangement violates the policy of 'cooperative federalism' that is a bedrock principle of the Act. In addition, the Agency fails to provide sufficient guidance for states to develop SIPs. Santee Cooper respectfully urges EPA to extend the compliance deadlines in the proposed Transport Rule to give states an opportunity to develop their own SIPs, and to offer the guidance needed for SIP development. [EPA-HQ-OAR-2009-0491-2820.1, p.13]
Section 110 of the CAA provides states with a default period of three years from the promulgation of a NAAQS to submit a SIP that 'provides for the implementation, maintenance, and enforcement' of the NAAQS, including 'adequate provisions' to prohibit sources within the state from significantly contributing to nonattainment or interfering with the maintenance of attainment in any other state. EPA's authority to impose a FIP exists only to the extent a state has failed to submit an adequate SIP. [EPA-HQ-OAR-2009-0491-2820.1, p.13]
The Federal courts have consistently held that the cooperative federalism structure of the Act gives states primary responsibility for determining how they will meet the NAAQS, including selecting the means of addressing interstate transport. SIP authority provides states with the opportunity to 'focus their reduction efforts on local needs or preferences,' thereby allowing for a fairer and more efficient regulatory program. [EPA-HQ-OAR-2009-0491-2820.1, p.13]
Indeed, in the NOx SIP Call, EPA itself acknowledged that 'Congress' clear preference throughout Title I is that states are to decide and plan how they will control their sources of air pollution, and the mechanism for imposing those controls at the state level is SIPS." Citing this principle, EPA first allowed states in the NOx SIP Call to revise their SIPs to address interstate ozone transport before imposing direct federal emission controls under Section 126. Furthermore, under the CAIR, EPA gave states a full 18 months to develop SIPs, and an overall lead time of four years before the start date for emission reductions. [EPA-HQ-OAR-2009-0491-2820.1, p.14]
The proposed Transport Rule represents a substantial and inappropriate departure from these previous interstate transport regulations and court decisions; it would impose a FIP approximately six to nine months after promulgation. EPA itself acknowledges that SIP revisions typically require three years to prepare and approximately six months to approve. Since the Transport Rule is likely to be finalized in mid-20l1 and FIPs would take effect in 2012, there is almost no chance that states subject to the Transport Rule could revise and approve their SIPs in time to avoid the imposition of the FIP. This result is inconsistent with past practice under the CAIR and the NOx SIP Call, and is also inconsistent with the 'clear preference' of Congress that states be given primary responsibility through the SIP process for fashioning emission control requirements. [EPA-HQ-OAR-2009-0491-2820.1, p.14]
EPA asserts, in defending its upending of state authority, that the Agency made findings of unsatisfactory SIPs with respect to the 1997 NAAQS for ozone and PM2.5 in the CAIR, and has made further findings with respect to the 2006 NAAQS for PM2.5 in the proposed Transport Rule itself. Yet, EPA fails to acknowledge that the states have not submitted satisfactory SIPs because, unlike other SIP elements, the section 110 prohibition on interstate transport cannot reasonably be addressed in a SIP without EPA's technical and policy analysis. [EPA-HQ-OAR-2009-0491-2820.1, pp.14-15]
After CAIR was remanded to EPA, states could not reasonably be expected to guess how the Agency would adjust its technical approaches to transport determinations under section 110(a)(2)(D). Indeed, in the proposed Transport Rule, EPA has made substantial modifications to its methodology for determining which states contribute to downwind nonattainment and interference with maintenance, including: (l) revised screening thresholds for states with minimal interstate emissions, (2) modifications to the process for projecting future ozone and PM2.5 concentrations, and (3) the modeling approach used to determine the magnitude of the impact of upwind emissions on air quality in downwind states. [EPA-HQ-OAR-2009-0491-2820.1, p.15]
Furthermore, as EPA itself recognizes in the preamble to the Transport Rule, the prohibition in Section 110(a)(2)(D) necessarily involves a policy determination about each state's relative responsibility to abate its share of many states' collective contribution. EPA observes that the interpretation of 'significant contribution' and 'interfere with maintenance' in the CAA 'inherently involves a policy decision on how much emissions control responsibility should be assigned to upwind states, and how much responsibility should be left to downwind states." Without EPA's policy judgment on this issue, no state could determine the extent to which it needs to revise its SIP. [EPA-HQ-OAR-2009-0491-2820.1, p.15]
Not only has EPA provided insufficient time for the covered states, it has also provided insufficient guidance. The proposed Transport Rule contains relatively little information states could use to develop their own SIPs. [EPA-HQ-OAR-2009-0491-2820.1, p.15]
Accordingly, in order to respect the principle of 'cooperative federalism' in the context of Section 110(a)(2)(D), EPA should give the states sufficient notice, opportunity, and guidance to revise their SIPs after EPA has made the threshold technical and policy judgments. To this end, Santee Cooper urges EPA first to finalize its analysis in the Transport Rule and then allow states a minimum of 18 months (the maximum period authorized under section 110(k)(5)) for states to submit satisfactory SIPs. [EPA-HQ-OAR-2009-0491-2820.1, p.16]
For the reasons outlined above, Santee Cooper respectfully requests that EPA provide more guidance and time for states to develop SIPs to address interstate transport, and also to extend the compliance deadlines for the proposed Transport Rule as necessary to accommodate SIP development. [EPA-HQ-OAR-2009-0491-2820.1, p.17]
STATES SHOULD BE ALLOWED TO REQUEST AN ALTERNATIVE ALLOWANCE ALLOCATION METHODOLOGY IN APPLICABLE FIPs [EPA-HQ-OAR-2009-0491-2820.1, p.30]
If EPA does not alter the compliance deadlines in the final Transport Rule, and thereby prevents states from submitting revised SIPs, EPAs in time to prevent the imposition of FIPs, Santee Cooper believes that EPA should create an informal process for incorporating state preferences on allowance allocations into FIPs. As noted above, EPA's proposed default method for allocating allowances among EGUs ensures that EGUs with the greatest demand for allowances (those with the highest NOx and S02 - 30- emissions) receive relatively more allowances. This method also disadvantages EGUs that have made significant investments in conversion to cleaner fuels and installations of pollution-control equipment. Allocation raises sensitive issues of equity that are best left to individual states to decide. [EPA-HQ-OAR-2009-0491-2820.1, pp.30-31]
Because states are in a superior position to decide how allowances should be allocated to EGUs within their jurisdictions, EPA should at least provide an informal avenue for states to submit their desired allowance allocation methodologies to EPA for inclusion in the Transport Rule FIPs. This mechanism would be akin to the process by which EPA has recently requested that states recommend a 'reasonable deadline' for submitting revised SIPs addressing authority to issue PSD permits that include greenhouse gas limitations. Such informal submissions would allow states to have voice in the allowance allocation process even if they are not able to revise their SIPs before the Transport Rule takes effect. [EPA-HQ-OAR-2009-0491-2820.1, p.31]
Response:
EPA agrees with the commenter that the Transport Rule resolves the flaws in CAIR identified by the court in North Carolina v. EPA.  In addition, As explained in this section of the RTC, in section IV of the preamble to the final rule and in the TSD entitled "Status of CAA 110(a)(2)(D)(i)(I) SIPs," EPA has a legal obligation to promulgate the FIPs in this final rule.  EPA does not have a legal obligation to respond, in this particular rulemaking, to any petitions submitted pursuant to section 126 of the CAA.  Further, in section VI of the preamble to the final rule, EPA explains the rationale behind the compliance dates in the final rule.  Section VII also explains the importance of aligning compliance dates with NAAQS attainment deadlines. Also, in the final rule, EPA has created a process that would allow states to submit "abbreviated" SIPs to begin allocating allowances starting with vintage 2013 allowances.
Organization: Southeastern States Air Resource Managers (SESARM)
Comment:
Southeastern States Air Resource Managers (SESARM)
[These comments were submitted as testimony at the Atlanta, Georgia public hearing on September 1, 2010.  See Docket Number EPA-HQ-OAR-0491-1939, p.44.]
Number five, authority must be maintained to allow for states to implement additional programs necessary to address attainment and maintenance issues within their borders.
Number six, timely guidance from EPA is extremely critical to implementation of the final Transport Rule. This guidance should be issued concurrent with finalization of the rule.
Response:
Section 116 of the Clean Air Act explicitly addresses retention of state authority and generally protects, in most instances, the authority of states to adopt or enforce emission standards or limitations at least as stringent as federal standards and limits.  EPA will work with states, industry and the public to facilitate smooth implementation of the Transport Rule.
Organization: Southern California Edison Company
Comment:
Southern California Edison Company
SCE recognizes that EPA has been seriously constrained in its options for addressing SO2 transport by the 2008 Court of Appeals decision on the Clean Air Interstate Rule (CAIR) in North Carolina v. EPA. However, it is ironic -- and appears of doubtful legality to SCE -- that CATR, EPA's response to the North Carolina decision, would essentially override Title IV (statutorily created by Congress) and would have an economic impact on the Title IV cap and trade program at least as dramatic as CAIR's adjustment of the Title IV SO2 allowance-to-emission ratio that the court held invalid in North Carolina as being beyond EPA's regulatory authority. [EPA-HQ-OAR-2009-0491-2852.1 p.2]
Response:
As noted by the commenter, the D.C. Circuit held that EPA lacks authority to terminate or limit Title IV allowances through a trading program under section 110(a)(2)(D), North Carolina, 531 F.3d at 921, and that EPA does not have authority, under such a program, to remove Title IV allowances from circulation in the Title IV market,  id. at 922.  EPA sought to limit the value of certain Title IV allowances in CAIR, among other things, in order to ensure that Title IV allowances would retain value following promulgation of that rule.  In this rule, EPA is not taking any action to either terminate or limit any Title IV allowances.  While this rule (as well as other rules promulgated subsequent to passage of Title IV) may impact the value of Title IV allowances, the Title IV program, including the requirement for sources to hold Title IV allowances, continues in full force and effect and is not modified in any respects by this rule.
Organization: Southern Company
Comment:
Southern Company
VIII. The Proposed Transport Rule Should Not be Structured as a FIP
As explained more fully in UARG's comments, the Clean Air Act does not give EPA the authority to promulgate a FIP before allowing the states to submit a SIP. The opportunity to replace a FIP with a SIP at some point in the future does not satisfy EPA's obligation to provide states an opportunity to craft their own plans at the outset of the program. EPA may issue a FIP, 'rescind[ing] state authority,' only after a state fails to develop and submit a complete SIP and receive Agency approval of it. The Act grants no authority to EPA to promulgate a FIP without first giving the states adequate time and a real opportunity to develop and submit SIPs that reflect each state's 'sensitive ... choices' on how to implement section 110 (a)(2)(D)(i)(I). EPA has no authority to leapfrog over the SIP process and impose its own choices on states and regulated parties. [EPA-HQ-OAR-2009-0491-2864.1, p. 22]
Response:
As explained in this section of the RTC, in section IV of the preamble to the final rule and in the TSD entitled "Status of CAA 110(a)(2)(D)(i)(I) SIPs," EPA has a legal obligation to promulgate the FIPs in this final rule.
Organization: Southern Environmental Law Center
Comment:
Southern Environmental Law Center
Footnote 1. In these comments, we do not take a position on whether or to what extent the Transport Rule proposal would satisfy EPA's obligation to a downwind state seeking remedy under §126 of the Clean Air Act, 42 U.S.C. §7426, from the same interstate air pollution addressed in the Transport Rule. [EPA-HQ-OAR-2009-0491-2801.1, p.1]
Response:
No response to this comment is necessary because the commenter is not taking a position on the issue.
Organization: Southern IL Power Cooperative
Comment:
Southern IL Power Cooperative
EPA's proposed FIP is contrary to the Clean Air Act (CAA) because it does not give states the opportunity to submit SIPs conforming to the proposed CATR's overall state reduction mandates. States have up to 3 years to submit SIPs to remedy interstate transport, in this case to meet proposed CATR reduction mandates. (Section 110(a)) This period should begin to run when EPA issues a final CATR, since CAIR, the original transport rule, has been determined to be invalid by the court. The clean air act does not allow EPA to determine source or unit obligations, only to determine statewide reduction levels. [EPA-HQ-OAR-2009-0491-2863.1 p.4]
Response:
As explained in this section of the RTC, in section IV of the preamble to the final rule and in the TSD entitled "Status of CAA 110(a)(2)(D)(i)(I) SIPs," EPA has a legal obligation to promulgate the FIPs in this final rule.  The commenter cites to no CAA authority for the proposition that the 3 year deadline for submitting SIPs should run from the date EPA issues this rule.  Section 110(a)(1) of the CAA explicitly provides that the SIPs are due within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof).
Organization: State of Louisiana, Department of Environmental Quality
Comment:
State of Louisiana, Department of Environmental Quality
LDEQ appreciates the time and effort extended by all parties to bring about federal control measures on nitrogen oxide (NOx) and sulfur dioxide (S02); however, the ultimate responsibility for attaining ambient air quality standards still rests with the state and local clean air agencies. Following this premise, LDEQ respectfully submits the following comments on this proposed rule. [EPA.HQ-OAR-2009-0491-2655.1, p.1]
Response:
EPA thanks LDEQ for their support.  EPA believes the final rule is consistent with the requirements of the Clean Air Act including the system of cooperative federalism established therein.
Organization: State of Missouri Department of Natural Resources
Comment:
State of Missouri Department of Natural Resources
Also, Missouri requests that the implementation date after the rule becomes effective be extended to provide adequate time to work with Missouri utilities to develop state-specific elements such as allocations that are fair and reasonable. [EPA-HQ-OAR-2009-0491-3806, p.1]
Response:
As explained in this section of the RTC, in section IV.C.2 of the preamble to the final rule and in the TSD entitled "Status of CAA 110(a)(2)(D)i)(I) SIPs," EPA has a legal obligation to promulgate all of the FIPs in this rule.  EPA explains in section X of the preamble to the final rule, the steps taken to make it easier for states to replace the FIPs, in whole or in part.
Organization: State of Ohio Environmental Protection Agency (Ohio EPA)
Comment:
State of Ohio Environmental Protection Agency (Ohio EPA)
0hio EPA also has concerns with the proposed Federal Implementation Plan (FIP) process. U.S. EPA must ensure states are able to address the transport of pollutants through Section 110 of the Clean Air Act, via a State Implementation Plan, and provide sufficient guidance to ensure approvability. [EPA-HQ-OAR-2009-0491-2793.2, p. 11]
Although we understand the need for emission reductions as soon as possible, this 'FIP first' approach usurps the fundamental right of the states to develop their own SIP. Section 110 of the Clean Air Act identifies the responsibility of states, as part of their implementation plan, to provide the provisions addressing the transport of pollutants that may contribute to nonattainment or interfere with maintenance. The U.S. EPA proposal goes into detail on how states are free to develop state plans as alternatives to the FIP, but also makes clear that U.S. EPA does not believe the proposed time line provides sufficient time for state plans to be developed and is also unsure about the appropriate criteria for approval of these state plans. In other words, states are free to start work on their own plans, but cannot be certain as to their approvability until U.S. EPA finalizes those criteria, which will undoubtedly take some time. In our view, this 'FIP first' approach is inconsistent with the structure of the Clean Air Act that places the responsibility of attaining ambient air quality standards with the states. For states that choose to develop a SIP, it is essential that U.S. EPA provide appropriate and timely guidance to ensure that approval of a SIP could occur by . 2012. It is also essential that U.S. EPA provide flexibility to states in developing a SIP. States should be free to implement an allowance structure that provides incentives, such as energy efficiency, provided state budgets remain intact and consistent with U.S. EPA's final rule. [EPA-HQ-OAR-2009-0491-2793.2, p. 11]
Response:
As explained in this section of the RTC, in section IV of the preamble to the final rule and in the TSD entitled "Status of CAA 110(a)(2)(D)(i)(I) SIPs," EPA has a legal obligation to promulgate the FIPs in this final rule.  As explained in section X of the preamble, EPA has taken steps to make it easier for states to submit and get EPA approval of SIPs to replace the FIPs promulgated in this action, in whole or in part.
Organization: Tennessee Valley Authority (TVA)
Comment:
Tennessee Valley Authority (TVA)
Equally important, this additional time provides states the opportunity to develop SIPs and have them approved using the three-year deadline for CAA § 110(a)(2)(D)(i)(I) interstate transport SIP submissions. [EPA-HQ-OAR-2009-0491-2782.1, pp. 4-5] [[This comment can also be found in Section VII.C.]]
Response:
As explained in this section of the RTC, in section IV of the preamble to the final rule and in the TSD entitled "Status of CAA 110(a)(2)(D)(i)(I) SIPs," EPA has a legal obligation to promulgate the FIPs in this final rule.  As explained in section X of the preamble, EPA has taken steps to make it easier for states to submit and get EPA approval of SIPs to replace the FIPs promulgated in this action, in whole or in part.
Organization: Texas Commission on Environmental Quality
Comment:
Texas Commission on Environmental Quality
The TCEQ is concerned with the EPA's efforts to usurp state responsibility and authority with regard to the issue of transport and Section 1l0(a)(2)(D)(i)(I) of the Federal Clean Air Act (FCAA). The TCEQ finds that the EPA's intent to address transport requirements for states for any revised National Ambient Air Quality Standards (NAAQS), prior to states themselves being afforded the opportunity to do so, is contrary to the intent of the FCAA.  [EPA-HQ-OAR-2009-0491-2857.1, p.1]
The EPA is usurping state responsibility and authority with regard to the issue oftransport and Section 11o(a)(2)(D)(i)(I) ofthe FCAA. As the EPA asserts, Section 1l0(a)(2)(D)(i)(I) of the FCAA obligates states to prohibit emissions that contribute significantly to nonattainment, or interfere with maintenance by, any other state with respect to the NAAQS. However, Section 1l0(a)(2)(D)(i)(I) is clearly a requirement for inclusion in the state implementation plans that states are required to submit under Section 1l0(a)(1). The writers of the FCAA clearly envisioned that states would be given the opportunity to implement local controls as necessary to address transport impacts to other states. While the EPA indicates that it has determined or proposed to determine that the 32 states covered by the proposed Transport Rule have not submitted SIP revisions adequate to meet the requirements of Section llo(a)(2)(D)(i)(I), the EPA does not plan to limit this approach to just the 1997 and 2006 PM2 .S NAAQS and the 1997 ozone NAAQS. The EPA has indicated (75 FR 45213) that future revisions to NAAQS may necessitate revisions to the Transport Rule with greater reductions from the sources covered under the proposed Transport Rule or possibly from states or different source categories not included in the current proposal. Based on this statement, the EPA has apparently predetermined that no states will ever be in compliance with Section 1l0(a)(2)(D)(i)(I) of the FCAA. Therefore, the EPA has apparently assumed sole responsibility and authority for Section llo(a)(2)(D)(i)(I). The TCEQ argues that such an action is contrary to the intent of the FCAA. [EPA-HQ-OAR-2009-0491-2857.2, p.2]
Response:
For the reasons explained in this section of the RTC, in section IV.C.2 of the preamble to the final rule and in the TSD describing the status of CAA 110(a)(2)(D)(i)(I) SIPs, EPA has a legal obligation to promulgate the FIPs in this rule.  The question of whether EPA has authority for a specific FIP can only be determined by examining the status of the 110(a)(2)(D)(i)(I) SIP requirements for a particular state with respect to a particular NAAQS.  EPA has not taken any final action with regard to the transport requirements related to any future NAAQS or taken any position on the regulatory mechanism that would be used to address transport requirements related to any future NAAQS.
Organization: TransCanada
Comment:
TransCanada
Comment 5: EPA Should Consider Allowing States to Implement the Proposed Transport Rule Through SIPs Instead of FIPs
The proposed Transport Rule, instead of directing the states to prepare SIPs, if desired, to document how the requirements of the proposed Transport Rule will be implemented, requires that the proposed Transport Rule be implemented through FIPs established by EPA. CAIR and the NOx SIP calls, however, allowed the affected states to prepare SIPs to implement the programs. [EPA-HQ-OAR-2009-0491-2827.1, p.3]
EPA should consider providing states the opportunity to establish SIPs, if desired, to implement the requirements of the proposed Transport Rule. This would allow the states, including New York, to, among other things, allocate allowances among the units within the State. Giving states the opportunity to implement federal Clean Air Act ("CAA") requirements in a way that takes into account a state's particular situation, is a benefit of CAA regulation that should be considered by EPA. [EPA-HQ-OAR-2009-0491-2827.1, p.4]
Response:
As explained in this section of the RTC, in section IV of the preamble to the final rule and in the TSD entitled "Status of CAA 110(a)(2)(D)(i)(I) SIPs," EPA has a legal obligation to promulgate the FIPs in this final rule.  As explained in section X of the preamble, EPA has taken steps to make it easier for states to submit and get EPA approval of SIPs to replace the FIPs promulgated in this action, in whole or in part.
Organization: Utility Air Regulatory Group (UARG)
Comment:
Utility Air Regulatory Group (UARG)
The Proposed Transport Rule is intended to replace the Clean Air Interstate Rule, 70 Fed. Reg. 25162 (May 12, 2005) ("CAIR"), which EPA promulgated in 2005 and the U.S. Court of Appeals for the D.C. Circuit found to be "fundamentally flawed," initially vacated and remanded to the Agency in 2008, and then allowed to remain in place pending completion of EPA's remand rulemaking. See North Carolina v. EPA, 531 F.3d 896, 929 (D.C. Cir. 2008), modified on petitions for rehearing, 550 F.3d 1176 (D.C. Cir. 2008). Like CAIR, the Proposed Transport Rule primarily addresses EGUs and is based on EPA's interpretation and application of section 110(a)(2)(D)(i)(I) of the Act, which requires, in relevant part, each state's plan for attaining the national ambient air quality standards ("NAAQS") to "contain adequate provisions . . . prohibiting . . . any source or other type of emissions activity within the State from emitting any air pollutant in amounts which will . . . contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to any [NAAQS]." [EPA-HQ-OAR-2009-0491-2756.1, pp.7-8]
EPA's task in developing this proposed rule was to remedy the deficiencies identified by the court in North Carolina v. EPA. To an extent, EPA appears to have attempted to discharge that obligation. Indeed, as discussed in section II of these comments, UARG agrees with certain aspects of the proposal.[EPA-HQ-OAR-2009-0491-2756.1, p.9]
Yet in other respects, EPA's proposed approach is seriously misguided. The decision to impose FIPs rather than allow states time to develop state implementation plans ("SIPs") to implement section 110(a)(2)(D)(i)(I) obligations rests on an unlawful view of the CAA and the federal-state cooperative relationship under the Act.[EPA-HQ-OAR-2009-0491-2756.1,p.9]
And EPA in this proposed rule has arrogated to itself, in contravention of the law, the right and responsibility to determine how a state's emission reduction requirements must be accomplished, thereby assuming an exceptionally heavy burden to show that it has applied its unit allowance allocation methodology accurately and consistently. Review of the PTR's supporting information, however, reveals that EPA's approach on this score is anything but accurate and consistent. [EPA-HQ-OAR-2009-0491-2756.1, p.9]
In addition, EPA states in the proposed rule that it intends to propose additional interstate transport determinations in the future as EPA revises the NAAQS for PM2.5 and ozone, and that these proposals "could require greater emissions reductions from states covered by [the Proposed Transport Rule] and/or require reductions from states not covered" by the current proposal. 75 Fed. Reg. at 45213/3. It would be very difficult for states and electric generating companies to plan for compliance with a rule under which the standards of compliance change along with the frequent changes to the ambient standards. EPA should keep state budgets (and allowance allocations, to the extent EPA sets allowance allocations) as constant as possible, revising them only when essential and in a way that provides ample time for compliance, rather than changing them sporadically each time EPA revises a NAAQS. [EPA-HQ-OAR-2009-0491-2756.1, p.19]
Finally, the proposed rule -- and especially its 2012 first-phase compliance date -- is fundamentally inconsistent with the CAA because it effectively deprives states of the time they need to develop, submit, and receive EPA approval of SIPs before the program begins. See section IV infra. [EPA-HQ-OAR-2009-0491-2756.1, p.19]
EPA unabashedly proposes the Transport Rule as a FIP rule. Indeed, promulgation and implementation of the Transport Rule pursuant to the schedule that EPA proposes would make it nearly impossible for states to develop, submit, and receive EPA approval of SIPs in time to use them for implementation of the first phase of the program. EPA's assertion that promulgation of FIPs "would in no way affect the right of states to submit . . . a SIP that replaces the federal requirements of the FIP with state requirements," 75 Fed. Reg. at 45342/2, misses the point. The opportunity to replace federal requirements with a state plan at some point in the future does not satisfy the requirement that EPA allow the opportunity for states to develop their own plans, at the outset of the program, to comply with the Transport Rule. EPA's proposal would effectively bypass the states, at least with respect to the first phase of the program. This is unsupported by anything in the proposed rule and is contrary to the Act. [EPA-HQ-OAR-2009-0491-2756.1, p.24]
The CAA contemplates that states must be given a meaningful opportunity to develop SIPs and to submit them to EPA for review and approval before implementation of a new or revised NAAQS. CAA § 110(a)(1). See also CAA § 101(a)(3) ("air pollution control at its source is the primary responsibility of States and local governments"); CAA § 107(a) ("Each State shall have the primary responsibility for assuring air quality within the entire geographic area comprising such State by submitting an implementation plan for such State which will specify the manner in which national primary and secondary ambient air quality standards will be achieved and maintained within each air quality control region in such State"). The CAA provides that EPA may promulgate a FIP within two years after the Administrator (i) finds that a state has failed to submit a SIP or has submitted a SIP that does not satisfy the minimum criteria set forth in section 110 of the Act, or (ii) disapproves a SIP in whole or in part, unless the state has corrected the deficiency and the Administrator has approved the SIP. CAA § 110(c)(1). With respect to interstate air pollution, section 110(a)(2) provides that each state shall, in the first instance, submit a SIP to EPA that "contain[s] adequate provisions" prohibiting the emissions proscribed by section 110(a)(2)(D)(i). And section 110(k)(5) of the Act states that:
Whenever the Administrator finds that the [SIP] for any area is substantially inadequate to attain or maintain the relevant [NAAQS], to mitigate adequately the interstate pollutant transport described in [section 176A or section 184 of the Act], or to otherwise comply with any requirement of [the Act], the Administrator shall require the State to revise the plan as necessary to correct such inadequacies. The Administrator shall notify the State of the inadequacies, and may establish reasonable deadlines . . . for the submission of such plan revisions. CAA § 110(k)(5) (emphasis added). [EPA-HQ-OAR-2009-0491-2756.1, pp.24-25]
Although EPA undoubtedly has a role in implementation of NAAQS, including interstate transport requirements, that role is plainly "secondary." Train v. Natural Res. Def. Council, 421 U.S. 60, 79 (1975). The D.C. Circuit has interpreted the "partnership between EPA and the states for the attainment and maintenance of national air quality goals," as set forth in the Act, as follows: "The states are responsible in the first instance for meeting the NAAQS through state-designed plans that provide for attainment, maintenance and enforcement of the NAAQS."  Natural Res. Def. Council v. Browner, 57 F.3d 1122, 1123 (D.C. Cir. 1995). The court noted further that the Act's SIP provisions give states "authority to make the many sensitive technical and political choices that a pollution control regime demands." Id. at 1124. Here, the authority of states to develop SIPs and submit them to EPA for approval would allow the states to determine, based on state-specific concerns and the specialized knowledge of state officials, how best to achieve the emission reductions that may be necessary to satisfy section 110(a)(2)(D) by allocating allowances to sources within the state. EPA lacks the knowledge of state-specific conditions that state agencies can bring to bear in developing implementation plans. For example, within a state, various agencies and regulatory bodies may have input to the process for setting policy for allocating allowances, to assure not only environmental protection but also effective energy policies and electric reliability.  [EPA-HQ-OAR-2009-0491-2756.1, pp.25-26]
EPA may issue a FIP, "rescind[ing] state authority," id., only after a state fails to develop and submit a complete SIP and receive Agency approval of it. CAA § 110(c)(1). The Act grants no authority to EPA to promulgate a FIP without first giving the states adequate time and a real opportunity to develop and submit SIPs that reflect each state's "sensitive . . . choices" on how to implement section 110 (a)(2)(D)(i)(I). 57 F.3d at 1124. In other words, EPA has no "roving commission" to leapfrog over the SIP process and impose its own choices on states and regulated parties. Michigan v. EPA, 268 F.3d 1075, 1084 (D.C. Cir. 2001). [EPA-HQ-OAR-2009-0491-2756.1, p.26]
As noted above, it is a bedrock principle that, under the CAA, EPA's role is a decidedly "secondary" one -- one that requires the Agency to give states room and time to act:
[EPA] is relegated by the Act to a secondary role in the process of determining and enforcing the specific, source-by-source emission limitations which are necessary if the national standards it has set are to be met. Under [CAA] § 110(a)(2), the Agency is required to approve a state plan which provides for the timely attainment and subsequent maintenance of ambient air standards, and which also satisfies that section's other general requirements. The Act gives the Agency no authority to question the wisdom of a State's choices of emission limitations if they are part of a plan which satisfies the standards of § 110(a)(2), and the Agency may devise and promulgate a specific plan of its own only if a State fails to submit an implementation plan which satisfies those standards. § 110(c). Thus, so long as the ultimate effect of a State's choice of emission limitations is compliance with the national standards for ambient air, the State is at liberty to adopt whatever mix of emission limitations it deems best suited to its particular situation. [EPA-HQ-OAR-2009-0491-2756.1, pp.26-27]
Train, 421 U.S. at 79 (emphases added) (footnote omitted); see id. at n.16 (listing exceptions to this principle, where specific CAA provisions authorize EPA to determine emission limitations; none of those provisions apply here). Indeed, the D.C. Circuit and other courts of appeals have recognized repeatedly and consistently the well-established relationship between the federal government and the states with respect to interstate pollution regulation -- and the limited scope of federal authority. As the D.C. Circuit explained,
EPA determines the ends--the standards of air quality--but Congress has given the states the initiative and a broad responsibility regarding [the] means to achieve those ends through state implementation plans and timetables of compliance . . . . The Clean Air Act is an experiment in federalism, and the EPA may not run roughshod over the procedural prerogatives that the Act has reserved to the states. [EPA-HQ-OAR-2009-0491-2756.1, p.27]
Virginia v. EPA, 108 F.3d 1397, 1408 (D.C. Cir. 1997) (quoting Bethlehem Steel Corp. v. Gorsuch, 742 F.2d 1028, 1037-38 (7th Cir. 1984)); see also Michigan v. EPA, 213 F.3d 663, 687 (D.C. Cir. 2000) (noting that the validity of the statewide emission budget program that was the central feature of EPA's NOx SIP Call rule depended on "whether the program constitutes an impermissible source-specific means rather than a permissible end goal"; the court affirmed that rule because it "merely provide[d] the levels to be achieved by state-determined compliance mechanisms" and allowed states "real choice with regard to the control measure options available to them to meet the budget requirements" (emphasis added)). The principle that it is the right and responsibility of the states to develop plans to implement the Act's requirements could not be more clear. [EPA-HQ-OAR-2009-0491-2756.1, pp.27-28]
The Proposed Transport Rule makes equally clear, however, that EPA's proposal would violate this principle. The proposal's preamble articulates the view that EPA has broad responsibility to determine exactly what states, and sources in the states, must do to comply with section 110(a)(2)(D)(i)(I). EPA explains that its proposal "identifies emission reduction responsibilities of upwind states, and also proposes enforceable FIPs to achieve the required emissions reductions in each state through cost-effective and flexible requirements for power plants," and that "[e]ach state will have the option of replacing the [FIP with a SIP] to achieve the required amount of emissions reductions from sources selected by the state." 75 Fed. Reg. at 45212/3. In other words, under EPA's new approach, the states and their sources would be required to comply with the FIP unless and until -- after the prolonged period needed for SIP development -- SIPs are in fact developed, submitted, and approved by EPA (if and when EPA decides to approve them). This scheme is plainly contrary to the terms of the Act and the statesfirst principle recognized and enforced by the courts. EPA's passing reference to states' right to "replace[] the federal requirements of the FIP with state requirements," 75 Fed. Reg. at 45342/2, is not an acknowledgement of the right granted to states in section 110 of the Act. Congress gave the states the right to develop and submit SIPs implementing the Act's requirements in the first instance, based on state-specific considerations. No amount of expediency can justify violation of the terms of the Act and upsetting the balance that Congress struck between federal and state government. As the Supreme Court noted decades ago, "the Agency may devise and promulgate a specific plan of its own only if a State fails to submit an implementation plan which satisfies [the standards of § 110(a)(2)]." Train, 421 U.S. at 79 (emphasis added). [EPA-HQ-OAR-2009-0491-2756.1, pp.28-29]
EPA claims that its findings regarding the pre-CAIR SIPs, see 75 Fed. Reg. at 45341/3- 45342/2, justify the Agency's proposal to supplant the role of the states under the Act. EPA's error is perhaps most starkly revealed by this attempt to assign blame to the states for faithfully implementing the underlying section 110(a)(2)(D)(i)(I) rule -- CAIR -- that EPA itself promulgated to guide the states' implementation of that CAA provision. In CAIR, EPA took it upon itself, much as it had done in the NOx SIP Call rule, to set broad parameters -- in the form of statewide emission budgets -- for the states' implementation of their section 110(a)(2)(D)(i)(I) obligations. That EPA rule was later held unlawful through no fault of the states that worked to implement it. Thus, EPA's justification in the proposed rule for not allowing states sufficient time to develop new SIPs, and to submit them to EPA for review and approval, before implementation of the program begins is contrary to the Act as construed by the Supreme Court and the D.C. Circuit. [EPA-HQ-OAR-2009-0491-2756.1, p.29]
In particular, EPA's position that its 2005 findings that CAIR states had failed to submit SIPs satisfying their section 110(a)(2)(D)(i)(I) obligations for the 1997 PM2.5 and ozone NAAQS provide a legal basis for the Proposed Transport Rule FIPs, see 75 Fed. Reg. at 45341/3  - 45342/1, is without merit. 19 EPA attempts to justify this conclusion by explaining that, under CAIR:
EPA concluded that the states in the CAIR region would meet their section 110(a)(2)(D)(i) obligations . . . by complying with the CAIR requirements. Consequently, states within the CAIR region did not need to submit a separate SIP revision to satisfy the section 110(a)(2)(D)(i) requirements provided they submitted a SIP revision to satisfy CAIR . . . . [T]he Court granted several petitions for the review of . . . CAIR and found . . . that EPA had not demonstrated that . . . CAIR effectuates the statutory mandate of section 110(a)(2)(D)(i)(I). The EPA approvals of the CAIR SIPs preceded the remand of . . . CAIR . . . . Therefore, because the D.C. Circuit found CAIR and the CAIR FIPs unlawful, EPA's approval of the provisions of a state's SIP submittal as addressing the requirements of . . . CAIR could not satisfy the state's section 110(a)(2)(D)(i)(I) obligation. [EPA-HQ-OAR-2009-0491-2756.1, pp.29-30]
75 Fed. Reg. at 45341/3. This explanation -- that the states are in default of their SIP obligations because the D.C. Circuit held that EPA's promulgation of CAIR was unlawful -- is nonsensical. The states had no choice but to comply with CAIR or else to default on their EPA-determined SIP obligation. States cannot be penalized, or lose their right under the CAA to decide how to implement a CAIR replacement rule, because they complied with an EPA rule that, as later determined by the D.C. Circuit, violated the Act. [EPA-HQ-OAR-2009-0491-2756.1, p.30]
The D.C. Circuit has held that, where states have been prevented from meeting their statutory obligations due to the failure of EPA to comply with applicable CAA provisions, the deadline clock for states to submit SIPs should be restarted. See, e.g., Natural Res. Def. Council v. EPA, 22 F.3d 1125, 1137 (D.C. Cir. 1994) ("we think it would be unfair to penalize states that reasonably relied on and complied with the EPA's [regulatory decision] . . . . [W]e direct that the sanction clock for . . . SIPs start, if necessary, from the time of SIP disapproval in accordance with the statutory scheme"); see also Natural Res. Def. Council v. Thomas, 805 F.2d 410, 435 (D.C. Cir. 1986) (holding that EPA was required to extend the deadline for compliance with automobile NOx emissions standards when EPA was a year late in promulgating the standards, and explaining that, "[a]lthough fully cognizant of the frustration the drafters would have felt, could they have foreseen the course of events, we nonetheless find that they enacted a four year leadtime requirement and we have no alternative but to enforce it, unless or until Congress decrees otherwise"). Thus, the three-year deadline for CAA section 110(a)(2)(D)(i)(I) interstate transport SIP submissions for the 1997 NAAQS should be restarted due to EPA's unlawful adoption of CAIR, and should begin to run upon EPA's promulgation of a valid final rule replacing CAIR. [EPA-HQ-OAR-2009-0491-2756.1, pp.30-31]
Likewise, EPA's explanation that, with respect to the 2006 24-hour PM2.5 NAAQS, it will finalize FIPs for states that have not submitted SIPs and those for which EPA finds the previously-submitted SIPs to be incomplete or inadequate, 75 Fed. Reg. at 45342/2, lacks merit and is contradicted by EPA's own underlying justification for proposing the Transport Rule. In the proposed rule (as in CAIR), EPA plainly takes the position that it has the authority, if not the obligation, to set the overall terms for states' implementation of section 110(a)(2)(D)(i)(I) with respect to any new or revised NAAQS. Given this circumstance, therefore, the affected states' section 110(a)(2)(D)(i)(I) obligation with respect to the 2006 24-hour PM2.5 NAAQS should be deemed to begin to run only upon EPA's promulgation of a valid final rule setting guidelines (in the form of statewide emission budgets) for the states (e.g., a final CAIR replacement rule that is consistent with the CAA). [EPA-HQ-OAR-2009-0491-2756.1, p.31]As a Matter of CAA Procedural Requirements, the Proposed Rule's Unfounded Assumptions, Errors, and Apparent Anomalies -- and EPA's Failure To Explain Adequately Critical Aspects of the Proposal and To Include in the Docket Information that Would Enable Replication of EPA's Process -- Make the Proposed Rule Inadequate for Public Comment.
Even apart from the fundamental legal deficiency in the Proposed Transport Rule -- i.e., EPA's use of a "FIP-first" approach that improperly bypasses the SIP process, as described above -- and other flaws in EPA's proposal related to that deficiency, such as an improperly accelerated compliance schedule, other elements of the proposed rule make it inadequate as a notice of proposed rulemaking for public comment. [EPA-HQ-OAR-2009-0491-2756.1 ,pp.101-102]
First, the unfounded assumptions, errors, and anomalies in the Proposed Transport Rule, as described in these comments, make EPA's proposal inadequate for public comment. For example, the assumptions regarding individual units described in section VIII above affect the state budgets and allocations of allowances. These problems are serious, and some of them appear to be due to causes that are not readily discernible from EPA's proposed rule and TSDs. Such problems might have been avoided had EPA issued an advance notice of proposed rulemaking as UARG requested in April 2009, instead of developing the proposed rule without any meaningful opportunity for preliminary public review and input. Similarly, EPA's explanations of both its air quality assessment tool and the budgets and unit allocations are inadequate. Without additional explanation from EPA, it is impossible to replicate or validate EPA's significant contribution analysis and state budget and unit allocation calculations. See comments of Southern Company on the PTR (describing the lengths that it had to go to in order to try to replicate parts of EPA's analyses). [EPA-HQ-OAR-2009-0491-2756.1, p.102]
EPA must now revise the Proposed Transport Rule to remove these errors and anomalies, correct its ill-founded assumptions and judgments, and provide the critical missing explanations, and must either withdraw the proposed rule and begin the rulemaking anew or issue a comprehensive supplemental notice of proposed rulemaking for public comment. [EPA-HQ-OAR-2009-0491-2756.1, p.102]
The Proposed Transport Rule does contain some commendable elements, the proposed rule overall is seriously flawed on legal, policy, and factual grounds. These flaws are so substantial that EPA should withdraw the proposed rule and replace it with a new proposed rule that remedies the specific deficiencies identified by the court in North Carolina v. EPA, adopts a reasonable implementation and compliance schedule that allows adequate time for development of SIPs -- rather than impose FIPs in the first instance -- and does not impose emission reduction obligations on affected states that are more demanding than those imposed by CAIR. [EPA-HQ-OAR-2009-0491-2756.1, p.103]

Footnote 19: Some states may have already satisfied any obligation that they have under section 110(a)(2)(D)(i)(I) for these NAAQS and the 2006 PM2.5 NAAQS. If a state were to have already implemented, under state law, the emission reductions necessary to satisfy the requirements of the Transport Rule, there would not even arguably be any basis for EPA to impose a FIP on that state.
Response:
As explained above, in the Technical Support Document (TSD) entitled "Status of CAA 110(a)(2)(D)(i)(I) SIPs," and in section IV.C.2 of the preamble to the final rule, EPA has a legal obligation to promulgate each Federal Implementation Plan (FIP) in this final rule.  This conclusion is based on the plain language of the Clean Air Act as applied to the specific circumstances of each state.
Section 110(c)(1) of the Act requires EPA to promulgate FIPs within two years after finding that a state has failed to make a required SIP submission or disapproving a SIP.  Specifically, section 110(c)(1) states that the Administrator shall promulgate a Federal Implementation Plan within two years after the Administrator "(A) finds that a State has failed to make a required submission or finds that the plan or plan revision submitted by the State does not satisfy the minimum criteria established under subsection (k)(1)(A)  of this section or (B) disapproves a State implementation plan submission in whole or in part."  42 U.S.C. § 7410 (c)(1)(A) & (B).  EPA is relieved of the obligation to promulgate a FIP only if the state corrects the deficiency and EPA approves the SIP before promulgating a FIP.  42 U.S.C. § 7410(c)(1).  The Act does not create any exceptions to this rule.  For each FIP in this rule, EPA either has found that the state failed to submit a 110(a)(2)(D)(i)(I) SIP for the relevant NAAQS, or has disapproved the state's 110(a)(2)(D)(i)(I) SIP submission for the relevant NAAQS.  EPA is promulgating FIPs only in those circumstances where the Clean Air Act explicitly provides that it shall do so.
EPA also disagrees with several of the more specific arguments presented by the commenter.  These are addressed in turn below.
The commenter's sweeping assertion that EPA should not be promulgating any of the FIPs in this rule fails to acknowledge or address the significantly different postures of the states covered by this rule with respect to the requirements of CAA section 110(a)(2)(D)(i)(I) for the relevant NAAQS.  In this action, EPA is issuing 59 FIPs.  EPA is issuing FIPs to 20 states to correct SIP deficiencies relating to the 110(a)(2)(D)(i)(I) requirements for the 1997 ozone NAAQS.  EPA is also issuing FIPs to 18 states to correct SIP deficiencies relating to the 1997 PM2.5 NAAQS.  Finally, EPA is issuing FIPs to 21 states to correct SIP deficiencies relating to the 2006 PM2.5 NAAQS.
The states covered by this rule are differently situated in several respects.  First, the states are differently situated with regard to the mechanism used to implement the Clean Air Interstate Rule (CAIR), which addressed the requirements of 110(a)(2)(D)(i)(I) with respect to the 1997 ozone and 1997 PM2.5 NAAQS in certain states.  Not all of the states covered by this rule were covered by CAIR.  In addition, CAIR was implemented differently in different states, with some states submitting SIPs and others remaining subject to the FIP (either with our without submitting an abbreviated SIP).
Second, the states are differently situated with respect to the findings of failure to submit and SIP disapproval actions taken by EPA. In 2005, EPA made findings of failure to submit 110(a)(2)(D)(i) SIPs with respect to the 1997 NAAQS for all states.   EPA also has made findings of failure to submit 110(a)(2)(D)(i)(I) SIPs with respect to the 2006 PM2.5 NAAQS for a more limited number of states.  Additionally, EPA has acted to disapprove several SIPs that EPA concluded were not adequate to address CAA section 110(a)(2)(D)(i)(I) requirements for the 2006 PM2.5 NAAQS.
Third, the states are differently situated with respect to individual SIP submissions.  For example, many states that submitted SIPs to address the requirements of 110(a)(2)(D)(i)(I) for the 2006 PM2.5 NAAQS relied on CAIR for all or a portion of their submittal.  EPA has disapproved such SIPs as CAIR did not purport to address the requirements of 110(a)(2)(D)(i)(I) with respect to the 2006 PM2.5 NAAQS.
EPA has considered the specific circumstances of each state in determining whether it has an obligation to promulgate a FIP for that state with respect to a particular NAAQS.  More detailed information regarding the state specific actions taken by EPA and the status of each covered states 110(a)(2)(D)(i)(I) SIPs appears in the TSD entitled "Status of CAA 110(a)(2)(D)(i)(I) SIPs."
As explained below, the states are differently situated with regard to the mechanism used to implement the Clean Air Interstate Rule (CAIR).  The CAIR itself was intended to define the obligations of certain states with respect to the requirements of section 110(a)(2)(D)(i)(I) for these NAAQS.  The CAIR FIPs, in turn, were promulgated to ensure that the requirements of CAIR would be implemented in a timely manner.  Many states, however, chose to replace the CAIR FIPs, in whole or part, with SIPs.  Thus, some states are covered by the CAIR FIPs as promulgated by EPA, some are subject to the CAIR FIPs but have received EPA approval to allocate the allowances used in the CAIR FIP trading programs, and still other states have replaced the CAIR FIPs with SIPs that incorporated the CAIR trading programs into the SIPs.
In addition, based on the conclusion in the CAIR that compliance with the budgets established in CAIR would satisfy a state's 110(a)(2)(D)(i)(I) obligations, EPA issued guidance stating that states covered by CAIR that submitted SIP revisions implementing the requirements of CAIR for a particular NAAQS did not need to submit separate SIP revisions demonstrating compliance with the requirements of 110(a)(2)(D)(i)(I) for the that NAAQS.  Thus, any state covered by CAIR for PM2.5, that received EPA approval of a CAIR SIP implementing the annual NOX and annual SO2 limits established in CAIR, was not required to submit a separate SIP demonstrating compliance with the requirements of 110(a)(2)(D)(i)(I) with respect to the 1997 PM2.5 NAAQS.  Similarly, any state covered by CAIR for ozone, that received EPA approval of a CAIR SIP implementing the ozone-season NOX limits established in CAIR, was not required to submit a separate SIP demonstrating compliance with the requirements of 110(a)(2)(D)(i)(I) with respect to the 1997 ozone NAAQS.
Of the states covered by CAIR, only one state and the District of Columbia decided not to submit any SIP revisions to implement the requirements of CAIR or to allocate allowances under the FIP, but chose to remain subject to the FIP as promulgated by EPA.  Neither this state nor the District of Columbia, however, is covered by this rule because EPA determined that they (and some other states covered by CAIR) do not significantly contribute to nonattainment or interfere with maintenance of the 1997 ozone, 1997 PM2.5 or 2006 PM2.5 NAAQS in another state.
Several other states covered by CAIR chose to submit abbreviated SIPs which allowed the state to allocate allowances to sources in the state while remaining subject to the FIPs.  These abbreviated SIP submissions did not purport to satisfy the requirements of section 110(a)(2)(D)(i)(I) and thus did not purport to cure the deficiency identified in the 2005 findings of failure to submit.  EPA approval of an abbreviated CAIR SIP did not replace the FIP.  Instead, the approved abbreviated SIPs only modified certain provisions of the CAIR FIPs.  Even after EPA approval of an abbreviated CAIR SIP for a state, the CAIR FIPs remained in place and continued to be the legal vehicle for implementing the requirements of CAIR in the state.  The CAIR FIPs were found unlawful by the D.C. Circuit in North Carolina v. EPA and were remanded to EPA.  The CAIR FIPs will be replaced, as appropriate, by the FIPs in this rule.  Neither the state's submission of nor EPA's approval of an abbreviated CAIR SIP has any impact on EPA's legal obligation to issue FIPs which was created by the 2005 findings of failure to submit.
Some states covered by CAIR (including some which had previously submitted abbreviated SIPs) chose to submit SIP revisions to replace the CAIR FIPs for the 1997 ozone NAAQS, for the 1997 PM2.5 NAAQS or for both.  To distinguish these from the abbreviated CAIR SIPs, EPA will refer to these as full CAIR SIPs.  Upon approval of a full CAIR SIP, the CAIR FIP which had previously served as the legal vehicle for implementing the requirements of CAIR was withdrawn to the extent it was replaced by the CAIR SIP.  EPA has approved full CAIR SIPs for several states.  In many of these approvals, EPA relied on the conclusion finalized in CAIR that compliance with CAIR satisfied the requirements of section 110(a)(2)(D)(i)(I) for the 1997 PM2.5 NAAQS for the states covered by CAIR for PM2.5 and that compliance with CAIR satisfied the requirements of section 110(a)(2)(D)(i)(I) for the 1997 ozone NAAQS for the states covered by CAIR for ozone.  In some instances, EPA stated in its approval that the SIP submission satisfied the requirements of section 110(a)(2)(D)(i)(I) with respect to a specific NAAQS.  In other instances, EPA cited to its own guidance stating that it was not necessary for states with approved CAIR SIPs to submit separate SIP revisions to satisfy the requirements of section 110(a)(2)(D)(i)(I).  The July 2008 decision of the D.C. Circuit in North Carolina v. EPA made it clear that both types of statements were in error.  In that decision, the court found CAIR unlawful because the state emission reduction requirements in the rule were not adequately related to the state's significant contribution to nonattainment or interference with maintenance.  The CAIR, the court concluded, did not make measurable progress towards the statutory mandate of 110(a)(2)(D)(i)(I).  In other words, compliance by a state with the requirements of CAIR would not make measurable progress towards satisfying that state's obligation to comply with the requirements of section 110(a)(2)(D)(i)(I).  For this reason the CAIR SIPs do not satisfy the requirements of 110(a)(2)(D)(i)(I) and do not correct the SIP deficiency identified by EPA in its 2005 findings of failure to submit.  EPA does not believe that its approval of a SIP that does not correct the SIP deficiency relieves the Agency of its obligation to promulgate a FIP to correct that deficiency. See 42 U.S.C. § 7410(c)(1).
Nonetheless, to avoid any confusion, EPA is taking action in this notice under section 110(k)(6) to correct its prior CAIR SIP approvals to rescind any approval to the extent that it: (a) states or suggests that the SIP submissions either satisfied or relieved states from the obligation of submitting a SIP to demonstrate compliance with the requirements of section 110(a)(2)(D)(i)(I) with respect to the 1997 ozone and/or 1997 PM2.5 NAAQS; (b) states or suggests that the SIP approval affects EPA's authority to issue a FIP.  This action is based on EPA's determination that, in light of the court decision, the SIP approvals were in error to the extent they provided explicitly or implicitly that compliance with CAIR satisfies the requirements of 110(a)(2)(D)(i)(I) with respect to the 1997 ozone or the 1997 PM2.5 NAAQS or that the SIP submissions corrected the deficiency previously identified by EPA.
Finally, as noted above, the Clean Air Act provides that EPA is not relieved of its obligation to promulgate FIPs unless the States submits a SIP that corrects the deficiency and EPA approves the SIP.  Nonetheless, in the preamble to the proposed rule, EPA indicated that for states not covered by CAIR which had 110(a)(2)(D)(i)(I) SIPs pending at the time of proposal, EPA would finalize the FIP only if EPA determined the submission was incomplete or disapproved the SIP submission.  75 FR 45342.  This statement on its face does not apply to states that were covered by CAIR, regardless of the extent to which they were covered by CAIR.  The only two states covered by this rule but not covered by CAIR are Kansas and Nebraska.  Both Kansas and Nebraska are covered by this rule based only on their significant contribution to nonattainment or interference with maintenance of the 2006 PM2.5 NAAQS.  EPA has not received a 110(a)(2)(D)(i)(I) submission from Nebraska with respect to the requirements of the 2006 PM2.5 NAAQS.  EPA disapproved a SIP submission from Kansas with respect to the requirements of 110(a)(2)(D)(i)(I) for the 2006 PM2.5 NAAQS.
EPA disagrees with the commenter's argument that the rule is inconsistent with the CAA because it does not give states time, after promulgation of the Transport Rule, to develop, submit and receive EPA approval of SIPs before the FIPs go into effect.  First, as explained above, this argument is overbroad because it doesn't consider the unique circumstances in each state. Further, the commenter does not cite to any statutory authority which would allow EPA to alter the statutory deadline for SIP submissions.  Section 110(a)(2) provides that the deadline for states to adopt and submit SIPs runs from the date of promulgation or revision of the NAAQS, not from promulgation of the Transport Rule.  The Act does not give EPA authority to adjust the deadlines established in section 110(a)(1) in order to give states additional time, after promulgation of the Transport Rule, to submit SIPs that comply with section 110(a)(2)(D)(i)(I).  EPA also does not believe it has authority to alter the statutory requirement that it promulgate FIPs within two years of making a finding of failure to submit.  EPA sought to discharge this duty with respect to the states covered by CAIR for the 1997 ozone and PM2.5 NAAQS by promulgating the CAIR FIPs; however, the court vacated and remanded CAIR and the CAIR FIPs finding that they did not even make measurable progress toward meeting the statutory mandate of section 110(a)(2)(D)(i)(I).  EPA recognizes that deadline for promulgating the FIPs with respect to the 1997 standards now has passed, and it believes that it has an obligation to act expeditiously and that additional delay would not be justified in these circumstances.
Further, the cases cited by the commenter do not support the commenter's conclusion that it is improper for EPA to promulgate the FIPs in this rule.  The cases discussing the system of cooperative federalism established by the Clean Air Act explain both the primary role given to states with regard to the protection of air quality and EPA's obligation to promulgate federal plans "if a if a State fails to submit an implementation plan which satisfies [the standards of 110(a)(2)]".  Train, 421 U.S. at 79.  In addition, the two cases cited by the commenter for the proposition that EPA is required to adjust the SIP submittal deadline -- NRDC v. EPA, 22 F.3d 1125 (D.C. Cir. 1994) and  NRDC v. Thomas, 805 F.2d 410 (D.C. Cir. 1986) -- do not support that proposition.  In this case there is not a requirement for EPA to have taken some specific action in advance of the required state action.  Further, the statutory provisions at issue do not link the obligation of the parties to a required EPA action, much less provide that the obligation of the other parties (states in this case) does not arise until a specific period of time has elapsed following a required EPA action.  The fact that EPA stepped in to act where the states had not been able to act does not extend the statutory deadlines for states to submit SIPs or relieve EPA of the obligation and authority to promulgate FIPs.

Further, pursuant the court's decisions, EPA believes it has an obligation to act expeditiously to replace the CAIR and CAIR FIPs, which the court found to be unlawful.  EPA does not believe it would be appropriate, in light of the Court's decision in North Carolina, to establish a lengthy transition period to the rule that will replace CAIR and the CAIR FIPs as some commenters have suggested.  In its December 2008 decision remanding CAIR without vacatur, the Court stressed its prior conclusion that CAIR was deeply flawed and emphasized EPA's obligation to remedy those flaws expeditiously.  North Carolina, 550 F.3d 1176.  Although the Court did not set a specific deadline for corrective action, the Court took care to note that the effect of its opinion would not be delayed "indefinitely."  Id.  Given the Court's emphasis on remedying CAIR's flaws expeditiously, EPA does not believe it would be appropriate to establish a lengthy transition period to the rule which is to replace CAIR.  In these circumstances, EPA does not believe it would be appropriate to delay implementation of the Transport Rule requirements, and leave the CAIR and CAIR FIPs undisturbed, for several years to give states additional time to submit 110(a)(2)(D)(i)(I) SIPs.  However, EPA has taken steps as explained in section X of the preamble to the final rule, to facilitate state submission of SIPs to replace the Transport Rule FIPs.  States can, through these SIPs tailor implementation of the TR requirements to the specific needs and concerns of that state.
EPA has made every attempt to smooth the transition between the requirements of CAIR and those of the Transport Rule.  For future requirements, EPA will also make every effort to address transition issues.  However, EPA cannot ignore its statutory obligations and therefore cannot provide assurance, in this action, that no new requirements will be placed on the sources regulated by this action.
Prior to this action, States had ample time under the provisions of the CAA to develop and submit SIPs to address the requirements of 110(a)(2)(D)(i)(I).  Finally, EPA has provided notice and opportunities for public comment throughout the rulemaking process.  In addition to the original proposal, EPA issued three Notices of Data Availability, providing additional opportunities for public comment on elements of the rulemaking that were critical to the final modeling and analysis.  EPA believes that these opportunities provided adequate information and access to the data upon which EPA has relied in issuing this final rule.

[1] Section 110 (k)(1)(A) of the Act requires the Administrator to promulgate minimum criteria that a plan submission must meet before the Administrator is required to act on the submission.  This section does not require the Administrator to promulgate criteria for determining if a plan is approvable, but instead only criteria for determining if a submission is complete enough to require a substantive evaluation.  See 42 U.S.C.§ 7410(k)(1)(A).  A submittal that is incomplete is deemed not to have been made. See 42 U.S.C.§ 7410(k)(1)(C), see also NRDC v. EPA, 22 F.3d 1125, 1131 (D.C. Cir. 1994).
[2] States may also have received approval to expand the applicability of the CAIR NOX ozone season program to include all units subject to the NOX Budget Program, allow opt-ins, or provide for distribution of a Compliance Supplement Pool under the CAIR NOX (annual) program.
[3] The abbreviated SIP process was also used by some states to slightly modify the FIPs  by expanding the applicability of the CAIR NOX ozone season program to include all units subject to the NOX Budget Program, allowing opt-ins and/or providing for distribution of a Compliance Supplement Pool under the CAIR NOX (annual) program.
Organization: West Window Corp.
Comment:
West Window Corp.
The deadline does not provide enough time for states to develop their own implementation plans to comply with the rule, which has previously been a cornerstone of EPA compliance. [EPA-HQ-OAR-2009-0491-2386, p.1] [[This comment can also be found in Section VII.C.]]
Response:
As explained in this section of the RTC, in section IV of the preamble to the final rule and in the TSD entitled "Status of CAA 110(a)(2)(D)(i)(I) SIPs," EPA has a legal obligation to promulgate the FIPs in this final rule.  As explained in section X of the preamble, EPA has taken steps to make it easier for states to submit and get EPA approval of SIPs to replace the FIPs promulgated in this action, in whole or in part.
Organization: Westar Energy, Inc.
Comment:
Westar Energy, Inc.
THE RULE AS APPLIED TO KANSAS EXCEEDS EPA'S STATUTORY AUTHORITY [EPA-HQ-OAR-2009-0491-2757.1, p.8]
The CAA provides the authority for each state to have 'the primary responsibility for assuring air quality' within its borders. 42 U.S.C. § 74l0(a). Individual states exercise this responsibility by adopting state implementation plans ('SIPs') providing for the 'implementation, maintenance, and enforcement of' the NAAQS. 42 U.S.C. § 7410. See, e.g., Train v. Natural Resources Defense Council, 421 U.S. 60, 79 (1975) and Natural Resources Defense Council v. Browner, 57 F.3d 1122, 1123-24 (D.C. Cir. 1995)(explaining federal-state partnership under CAA). As the Rule recognizes, 'EPA has approved the 110(a)(2)(D)(i)submission [SIP] from the State of Kansas for the 1997 ozone and PM2.5 NAAQS.' 75 FR at 45342/1. To date Kansas has been expressly excluded from the NOx SIP Call and CAIR on the basis that Kansas does 'not significantly contribute to downwind nonattainment under the I-hour or 8-hour ozone NAAQS, or interfere with maintenance under the 8-hour NAAQS.' NOx SIP Call at 63 Fed. Reg. 57398/3. Thus, Kansas has never been required to submit a revised SIP in response to the CAIR rule. 70 Fed. Reg. 25171/2 ('The final CAIR does not cover Kansas based on new analyses of its contribution to downwind PM2.5 nonattainment.'); see 72 Fed. Reg. 10608 (March 9,2007) (order approving Kansas SIP on same basis). [EPA-HQ-OAR-2009-0491-2757.1, pp.8-9]
EPA may promulgate a Federal Implementation Plan ('FIP') to replace the SIP in whole or in part only after finding that a SIP fails to meet minimum criteria established by regulation or by finding that a SIP is inadequate to attain or maintain the NAAQS at issue. Neither finding has been made with respect to the Kansas SIP. CAA § 7410(c)(1)(A) states: [EPA-HQ-OAR-2009-0491-2757.1, p.9]
(c)(1) The Administrator shall promulgate a Federal implementation plan at any time within 2 years after the Administrator - [EPA-HQ-OAR-2009-0491-2757.1, p.9]
(A) finds that a State has failed to make a required submission or finds that the plan or plan revision submitted by the State does not satisfy the minimum criteria established under subsection (k)(1)(A) of this section. [EPA-HQ-OAR-2009-0491-2757.1, p.9]
Alternatively, EPA may require a State to revise its currently effective SIP '[w]henever the Administrator finds that the applicable implementation plan for any area is substantially inadequate to attain or maintain the relevant national ambient air quality standard . . . or to otherwise comply with any requirement of' the Clean Air Act. 42 U.S.C. § 7410(k)(5). However, such revision can occur only after the Administrator first publicly notifies the state of the SIP's inadequacies and sets a deadline (not to exceed 18 months) for the state to revise the SIP. [EPA-HQ-OAR-2009-0491-2757.1, p.9]
While the Rule states that the approved Kansas SIP is inadequate and must be replaced based on 'updated modeling done for this proposed rule,' 75 FR at 45342/1, this is not the requisite finding and does not follow the requisite procedure. EPA further states that it 'is proposing to finalize the FIP for Kansas for ozone only if the state fails to submit a complete and approvable SIP by the deadline established in any final SIP Call.' Id. But in order to avoid subjecting Kansas EGUs to enforcement action and Kansas to adverse findings under any FIP that will result from the Rule, Kansas must immediately begin implementing the Rule and the EGUs subject to the Rule must commit millions of dollars to attain compliance with the Kansas state air emission budget and individual EGU emissions allowances set forth in the Rule. In other words, the Rule's preemptive finding outside the requisite procedures does not give Kansas sufficient time to respond to a SIP disapproval and submit a revised SIP before the new emissions restrictions proposed in the Rule take effect nor would the deadline set by the Rule allow potentially affected EGUs the necessary time to install equipment necessary to comply with emissions limits. See 75 FR at 454286/3 ('a single SCR unit on average takes 21 months to install'). This presents the very real possibility that penalties could be assessed against the State of Kansas or any in-state EGU even though EPA's preemptive approach does not comport with the processes that Congress mandated for EPA SIP disapproval. [EPA-HQ-OAR-2009-0491-2757.1, p.10]
The CAA language allows EPA to replace a SIP only on the basis and after promulgation of final regulations establishing the applicable minimum criteria to be met by a SIP. Subsection 7410(c)(1)(A). EPA is in the process of promulgating, but has not yet finalized, the instant proposed rules. 75 FR at 45342/1. Consequently, the proposed rules do not yet constitute 'minimum criteria' with which Kansas' SIP must comply. [EPA-HQ-OAR-2009-0491-2757.1, p.10]
Quite the opposite, EPA has already determined under the currently effective minimum criteria that Kansas does 'not significantly contribute to downwind nonattainment under the 1- hour or 8-hour ozone NAAQS, or interfere with maintenance under the 8-hour NAAQS.' NOx SIP Call at 63 Fed. Reg. 57398/3; 72 Fed. Reg. 10608 (March 9, 2007)(same). Until the proposed rules are implemented as final regulations with the force of law, the already approved Kansas SIP will continue to meet the currently effective minimum criteria, and thus is not subject to replacement. [EPA-HQ-OAR-2009-0491-2757.1, p.11]
As the conditional language in the Rule acknowledges, the same result is reached by following the SIP Call process of § 7410(k)(5): 'That SIP Call, if finalized, would' find that Kansas' existing SIP is substantially inadequate and would 'establish a deadline for submission' of a new SIP. 75 FR at 45342/1 (emphasis added). The prerequisite for taking such action - a finalized SIP Call - has not yet happened, and therefore Kansas (and in-state EOD sources) cannot not yet be subjected to the proposed FIP as outlined in the Rule. By determining Kansas state air emission budgets and allowances for Kansas EODs and including them in the Rule, EPA treats Kansas and its EOD sources as if they would be subject to and required to meet the 2012 and 2014 emissions levels - this exceeds EPA's statutory authority. [EPA-HQ-OAR-2009-0491-2757.1, p.11]
Response:
As explained in this section of the RTC, in section IV of the preamble to the final rule and in the TSD entitled "Status of CAA 110(a)(2)(D)(i)(I) SIPs," EPA has a legal obligation to promulgate the FIPs in this final rule.  The requirements of section 110(a)(2)(D)(i)(I) apply to all states regardless of whether they have previously been found by EPA to significantly contribute to nonattainment or interfere with maintenance of a specific NAAQS in another state.  EPA's authority to identify emissions which significantly contribute to nonattainment of or interfere with maintenance of the NAAQS in another state is separate from its authority to promulgate a FIP to directly prohibit such emissions.  EPA has general authority under CAA sections 110(a)(2)(D) and 301(a)(1) to provide states with the results of analyses to identify the emissions that must be prohibited pursuant to section 110(a)(2)(D)(i)(I) and to provide optional remedies.  With respect to Kansas, EPA has disapproved a SIP submitted by the State to address the requirements of section 110(a)(2)(D)(i)(I) with respect to the 2006 PM2.5 NAAQS.  It thus has authority and a legal obligation to promulgate a FIP with addressing these requirements.  In addition, with respect to the requirements of section 110(a)(2)(D)(i)(I) for the 1997 ozone NAAQS, EPA is following the procedures in section (k)(5) of the Act which apply when EPA determines an approved SIP is deficient.
Organization: Wolverine Power Supply Cooperative
Comment:
Wolverine Power Supply Cooperative
EPA's implementation strategy that preempts the State Implementation Plan (SIP) process by immediate imposition of a Federal Implementation Plan (FIP) circumvents Section 110(a) of the Clean Air Act (CAA), and is neither legal nor advisable. Short-circuiting the SIP development process pre-empts State development of a workable allocation mechanism between subject sources within a state and other necessary control strategies to support attainment of the NAAQS. The CAA gives the states up to 3 years to submit SIPs to remedy interstate transport, which should follow the effective date of this rule. Further, the CAA does not allow EPA to determine individual source or unit obligations, which are the responsibilities of the states, but it does direct EPA to determine statewide reduction levels.  [EPA-HQ-OAR-2009-0491-2825.1 p.2]
Response:
As explained in this section of the RTC, in section IV of the preamble to the final rule and in the TSD entitled "Status of CAA 110(a)(2)(D)(i)(I) SIPs," EPA has a legal obligation to promulgate the FIPs in this final rule.  The commenter cites to no CAA authority for the proposition that the 3 years deadline for submitting SIPs should run from the effective date of this rule.  Section 110(a)(1) of the CAA explicitly provides that the SIPs are due within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof).
III.B. What Air Quality Problems and Which NAAQS Does This Proposal Address?

Organization: Citizens Campaign for the Environment (CCE)
we energies
State of Delaware Department of Natural Resources & Environmental Control
Clean Air Task Force
Exelon
American Lung Association
American Lung Association of the Mid Atlantic
Ozone Transport Commission (OTC)
Oren, Craig N.
Edison Electric Institute (EEI)
Comment:
American Lung Association
[These comments were submitted as testimony at the Chicago, Illinois public hearing on August 19, 2010.  See Docket Number EPA-HQ-OAR-0491-1746, pp.58-59.]
EPA needs to take the steps to provide even greater protection for public health.
Air pollution is coming into Cook today from ten different states, not just the neighboring states of Indiana, Wisconsin and Michigan, but states as far as away as Iowa, Kentucky, Minnesota, Missouri, Ohio and even Pennsylvania and West Virginia send ozone and particles into Cook County.
This rule would require that plants in 31 states, including Illinois, cut the pollution they send across state lines. That pollution is toxic.
Coal-fired power plants emit millions of tons of sulfur dioxide and nitrogen dioxide.
These two gasses are so dangerous that on their own EPA recently strengthened the limits on how much of each is safe.
More importantly, sulfur dioxide and nitrogen dioxide are also the raw ingredients that help form other, even deadlier pollutants which are ozone and fine particles.
[These comments were submitted as testimony at the Chicago, Illinois public hearing on August 19, 2010.  See Docket Number EPA-HQ-OAR-0491-1746, pp.63-66.]
Under this framework, EPA assesses in detail the contribution from sources in each upwind state to the pollution levels in downwind states.
Such a careful analysis provides strong evidence of pollution from these 31 states and the District of Columbia burdens people living in these nonattainment and maintenance areas.
EPA will need to move this framework forward soon. The standards that form the basis for these calculations are sadly out of date.
In particular, the 1997 standard that EPA used is now 13 years old, and was superceded by a tighter standard than 75 parts per billion.
Now that 75 parts per billion standard, also widely recognized as inadequate, is being reconsidered and should be replaced by the standard that will be coming out August 31st.
The 75-parts-per-billion standard which -- the 2006 PM 2.5 standards, which includes the ancient and woefully inadequate 15-parts-per-million standard for particles are also under review with proposals scheduled to come out soon.
So why not use, for example, the 75-parts-per-billion level for ozone in your calculation.
I suspect the simple answer is that there are no nonattainment areas or maintenance areas for that 75-parts-per-billion standard established.
However, the areas still in nonattainment for the 84 parts-per-billion standard are certainly in nonattainment for that 75-parts-per-billion level, and many areas in maintenance for 84 parts per billion also violate the 75 parts per billion.
We know adverse health effects occur at levels below 75 parts per billion. Should EPA at least not include that level in the assessment for a federal implementation plan.
In fact, EPA has design values and monitoring data for all counties with ozone monitors.
You can readily tell which counties failed to meet the 75-parts-per-billion level using that data.
EPA could assess the burden upwind states are placing on these downwind states just using the counties with monitors as reference points.
As it is, the Clean Air Transport Rule becomes weaker than is needed to address the significant interstate transport of ozone based on the 75-parts-per-billion standard.
Yet this rule is critical to helping states to protect public health.
[These comments were submitted as testimony at the Philadelphia, Pennsylvania public hearing on August 26, 2010.  See Docket Number EPA-HQ-OAR-0491-1938, pp.46-48.]
EPA most move the framework forward expeditiously. Sadly, the standards that form the basis for the calculations are out of date. For PM, the proposal incorporates the 1997 and 2006 PM 2.5 standards, which fail to protect public health. EPA is considering new and compelling evidence that show those standards should be revised and tightened next year.
Most troubling is the use of the 1997 ozone standard as the basis of the proposal.
EPA can and should ameliorate some of the adverse consequence of the delay in the standard revision by moving forward with the most protective and strongest transport rule that maximizes pollution reductions. These reductions should ensure that no area is in nonattainment for 1997 standard and should maximize the number of areas meeting the 75 ppb level.
[These comments were submitted as testimony at the Atlanta, Georgia public hearing on September 1, 2010.  See Docket Number EPA-HQ-OAR-0491-1939, p.11]
We do need to do more because EPA's basing this rule on sadly out-of-date national air quality standards. This proposed rule uses standards adopted in 1997 for ozone and annual fine particles and 2006 for the 24-hour particle standards.
Using out-of-date standards means that we are looking at the wrong target for cleanup. EPA should at least use the current ozone standard set in 2008 for their assessment of downwind impact.
[These comments were submitted as testimony at the Atlanta, Georgia public hearing on September 1, 2010.  See Docket Number EPA-HQ-OAR-0491-1939, pp.14-15.]
In this proposal, EPA chose to use the 1997 ozone standard that is now 13 years old. Two years ago, the Bush administration replaced that standard with a tighter one, setting 75 parts per billion. The medical and public health community considers 75 ppb far too much ozone for people to breathe. The Obama administration chose to reconsider the 2008 decision and is promising an answer in October. Before you finalize the Transport Rule next year, we will know that what new standard will be.
The American Lung Association expressed our extreme disappointment last month as the EPA announced that the new ozone standard would be delayed until late October. The bottom line is that the current EPA national air quality standard for ozone is not 84 parts per billion used in its proposed rule. For the time being, it is 75 parts per billion. The Transport Rule should reflect the current standard.
[These comments were submitted as testimony at the Atlanta, Georgia public hearing on September 1, 2010.  See Docket Number EPA-HQ-OAR-0491-1939, p.15.]
EPA is proposing to review and revise the rule after the 2010 standard is adopted in 2011, but to wait until then to strengthen the rule is a mistake and unnecessary. The rule needs to begin by using the current ozone standard. Any county that gets a significant part of its ozone for an 84 ppb standard for transported pollution will also absolutely get a significant part of its ozone under a 75 ppb or a more protective standard. In fact, any county with current design values above 75 ppb should have the help this rule provides in solving their ozone problems.
[These comments were submitted as testimony at the Atlanta, Georgia public hearing on September 1, 2010.  See Docket Number EPA-HQ-OAR-0491-1939, p.17.]
Odds are good that the ozone standard announced this fall will require at least as much cleanup as the current standard and considerably more than the 1997 one. Requiring controls based on a 75 ppb provides a more realistic appraisal of what will be needed than the proposed rule does. We urge you to use the current ozone standard to develop the final rule.
EPA has design values and monitoring data for all counties with ozone monitors. You can readily tell which counties would fail to meet the 75 ppb ozone standard using that data. EPA could assess the burden upwind states are placing on these downwind states just using the counties with monitors as reference points.
American Lung Association of the Mid Atlantic
[These comments were submitted as testimony at the Philadelphia, Pennsylvania public hearing on August 26, 2010.  See Docket Number EPA-HQ-OAR-0491-1938, p.33.]
The EPA should be proactive and include the remanded 75 ppb ozone standard in its evaluation of the rules impacts.
Citizens Campaign for the Environment (CCE)
CCE believes that the proposed Transport Rule should be improved to provide maximum benefit to our environment, public health, economy, and building structures. Specifically, the final Transport Rule should:
Require deeper cuts in NOx emissions. The emissions reductions in the proposed Transport Rule are based on outdated 1997 National Ambient Air Quality Standard (NAAQS) data as the standard for which reductions will be based. This standard was updated and strengthened in 2008, and is being updated and expected to become even more stringent in late 2010. Utilizing the more stringent, up-to-date standard will help to ensure that the Transport Rule provides maximum emission reductions, thus providing maximum benefit to the environment, health, economy and building structures throughout NYS, CT, and the rest of the Northeast. Deeper cuts in emissions will also hasten the ecological recovery of places such as the Adirondack Park. The final Transport Rule should also utilize the new, up to date standards as they are developed in the future. [EPA-HQ-OAR-2009-0491-1937.1, p. 3]
CCE recommends that emissions reductions are based on National Ambient Air Quality Standard of 2008, and is updated accordingly as new, more stringent standards are developed, including the standards that are projected to be developed by late 2010. [EPA-HQ-OAR-2009-0491-1937.1, p. 3]
Clean Air Task Force
The TR should be based on the most recently adopted standard, even if nonattainment areas have not been designated. EPA does not need to wait for designations to employ the current NAAQS. Thanks to EPA's careful assessment of county-specific data, the evaluations can be based against the contributions to individual counties that currently have design values showing violations of the NAAQS. Even if the ultimate nonattainment areas are larger or smaller than the single county, at a minimum it is clear that county or that portion of the county is violating the standard and will need assessing against the impact of transported ozone. [EPA-HQ-OAR-2009-0491-2738.1, p.24]
In this proposal, EPA chose to use the 1997 8-hour ozone NAAQS to assess contributions to nonattainment areas. Since rounding is applied that standard was effectively 0.084 ppm. The 1997 standard is now 13 years old and is no longer the current NAAQS. In 2008, the EPA replaced that the 1997 standard with a tighter one, set at 0.075 ppm. As discussed earlier, the EPA has now proposed to strengthen that standard to between 0.060 ppm and 0.070 ppm, with the decision scheduled for announcement in late October. We applaud EPA's effort in this regard, and agree that a tighter standard is fully justified. However, the 2008 standard remains in effect, and unless and until it is superseded, EPA should determine and eliminate significant contribution to nonattainment and interference with maintenance of that standard. [EPA-HQ-OAR-2009-0491-2738.1, p.24; for additional comments pertaining to The proposed Rule Inappropriately Uses the 1997 Ozone NAAQS as the basis for Assessment of Contributions from Transported Ozone see p. 24-25]
We urge the Agency to issue a rule that includes that following adjustments to its August 2 proposal: uses the current NAAQS as the basis for assessment of the significant contributions, including the 2008 ozone NAAQS. [EPA-HQ-OAR-2009-0491-2738.1, p. 30]
Edison Electric Institute (EEI)