1 

## A. **Analysis of 309 Comments Received in Response to the November 18**  **, 200 3**  **Public Hearing**

Commenter Comment # Section Comment DEQ Response

PacifiC orp A1 Projection of Visibility Improvement PacifiCorp notes that Wyoming has done considerable work in conducting modeling to identify the benefits that the SO 2 program will provide to the Class I areas in Wyoming as well as those sixteen on the Colorado Plateau. PacifiCorp recommends that for purposes of the SO 2 program the state include the modeling resul ts for these additional Class I areas and explicitly state that this program is meeting the visibility improvement requirements for these Class I areas, as well as those on the Colorado Plateau. The initial SIP pursuant to Section 309 focuses on implementi ng the GCVTC recommendations for the Sixteen Class I areas on the Colorado Plateau. The State of Wyoming has made a declaration in this submittal that it intends to address other Class I areas pursuant to Section 309(g) of the Rule in a SIP revision no lat er than December 31, 2008. In part, that decision was informed by the modeling work conducted by the WRAP to verify the Annex analysis, in which it was shown that in addition to the 16 Class I areas on the Colorado Plateau, the regional SO 2 milestones resu lted in visibility improvements in Wyoming’s Class I areas as well. This demonstration can be found in Section 4.1.2 of the WRAP Technical Support Document. In accordance with Section 309(g), although additional strategies may be required to show reasonab le progress for other Class I areas, no further demonstration or SO 2 strategies will be required for Wyoming’s stationary sources that are already included in the 309 regional SO 2 milestone program

.

PacifiC orp A2 Clean Air
Corridors PacifiCorp agrees with the Department's characterization of the clean air corridor requirements. Although it is unlikely that the emissions increase threshold will be triggered, we urge the State to consider that emission increases may not necessarily
inf luence all Class I areas on the Colorado Plateau on the least

impaired days. Efforts should be taken to further refine the underlying meteorology and modeling for demonstrating impacts on the least impaired days. The State agrees that analysis of impact should address each Class I area individually, and that refinements are needed in meteorological and monitoring data for demonstrating impacts of emissions coming from the clean air corridor. The WRAP’S periodic "Causes of Haze" reports will provide more robust understanding of clean air corridors in the future.2 PacifiC orp A3 Stationary
Sources PacifiCorp suggests that Wyoming reiterate EPA’s finding that the emission reduction milestones provide “greater reasonable progress” than would be achieved by the application of best available retrofit technology to eligible sources. For purposes
of SO 2 emissions from stationary sources, Wyoming should take advantage of the work completed by the WRAP demonstrating this not only for the 16 mandatory Class I
federal a reas on the Colorado Plateau, but for all mandatory Class I Federal areas in the western U.S., including the State of Wyoming (see: Technical Support Document, 4.1.2. Stationary
Source SO 2 Control Scenario Modeling Results for Western Class I Areas). A sig nificant benefit under the rule, and from the modeling work completed by the WRAP, is that no further demonstrations are necessary to show that, for stationary
sources of SO 2 covered by this program, the milestones will satisfy the BART provisions under §1 69A of the CAA. Affected sources covered by this program must have certainty that the
SO 2 milestones will not be reopened. The initial SIP pursuant to Section 309 focuses on implementing the GCVTC recommendations for the Sixteen Class I areas on the Colora do Plateau. The State of Wyoming has made a declaration in this submittal that it intends to address other Class I areas pursuant to Section 309(g) of the Rule in a SIP revision no later than December 31, 2008. In part, that decision was informed by the mo deling work conducted by the WRAP to verify the Annex analysis, in which it was shown that in addition to the 16 Class I areas on the Colorado Plateau, the regional SO 2 milestones resulted in visibility improvements in Wyoming’s Class I areas as well. Thi s demonstration can be found in Section 4.1.2 of the WRAP Technical Support Document. In accordance with Section 309(g), although additional strategies may be required to show reasonable progress for other Class I areas, no further demonstration or SO 2 str ategies will be required for Wyoming’s stationary sources that are already included in the 309 regional SO 2 milestone program

.3 PacifiC orp A4 Changes in flow
Rate
Measurement

Processes While PacifiCorp understands the intent of this provision as it

was negotiated in the Annex (i.e., to avoid so called “paper changes” in emissions), we also have continuing concerns about how it will be implemented in the real world. This section assumes that monitoring emissions is an exact science
with discreet actions t hat affect the accuracy of the data. This is simply not true. There are many variables that affect emissions and the data that is reported. In order to standardize the reporting of emissions, EPA has created a very detailed program under Title IV of the Cl ean Air Act. Utilities have complied with EPA’s requirements for measuring, conducting quality assurance and quality control activities, and reporting stack emissions since 1995. All data supplied to EPA under Title
IV of the Clean Air Act is certified to meet these EPA standards. PacifiCorp recommends that the State be very cautious about adjusting the interim milestones using these methods, and recommends that the state rely on the emissions that utilities report to the EPA under Title IV of the acid rain program, rather than getting caught

- up in the creation of additional clumsy and burdensome databases to address relatively minor changes in the milestones. The WRAP Market Trading Forum discussed at length the issue of “paper” emission changes due

to new flow measurement techniques. There was concern that these changes would undermine the goals of the Annex because real emission reductions would not occur, even though the reported emissions would show a decrease. The SIP provisions related to flow rate

m easurement methods were designed to ensure that actual emission reductions take place. These measures need to remain in place so that we can determine the scope of the “paper changes” that have occurred since 1999. The measures are also specifically requ ired by 40 CFR 51.309(h)(1)(iv).4 PacifiC orp A5 Year 2013
Assessment [A4.1(b)] Following the letter and spirit of the Annex, PacifiCorp believes that this process entails two steps: (1) a
determination based on the evidence that The 2018 milestone
will not be met; and (2) a consensus decision with the other 309 states that triggering the program is “necessary” to ensure the 2018 milestone is met (i.e., consensus that but for an early triggering of the program, the 2018 milestone will not be met). This pr operly places the burden on those asserting that the program should be triggered early.

Revise A4.2(b) At the end of this subsection, add the following sentence: “draft report will be posted on the WRAP website for a period of public review and comment for not less than 30 days.”

Revise A4.3 “Consensus Decision” as follows:

“The Department commits to meet with the participating states and tribes in March 2014 to discuss any comments received on the 2018 emission projections in the draft report. The participating states and tribes will decide, through a

consensus process, whet her it can be determined that the 2018 milestone will not be met, and whether it is necessary to trigger the WEB trading program early in order to meet the SO 2 emission reduction goals in 2018.” A4.2(b) The language was not added at this time because of ti me constraints, however, in coordination with the other 309 states Wyoming commits to provide the suggested public notification. A4.1(b) and A4.3 The suggested language has not been added to the SIP. The purpose of the 2013 review is to determine whethe r we are heading into trouble so that the participating states and tribes can avoid a major non

- compliance issue in 2018. If the 2018 penalty provisions are triggered, it will be a failure of the expected process, and sources in Wyoming would face signifi cant financial penalties. By triggering the trading program, the states will use the backstop regulatory program to ensure that sources remain in compliance and that the goals of the program are met. The decision will be based on the best information ava ilable, but because the states and tribes will be using emission projections, there will always be some uncertainties in the numbers. It cannot be “determined that the milestones will not be met” with absolute certainty, and the proposed language could be interpreted to require certainty. The milestones are designed so that market forces and the incentive of avoiding a regulatory program will drive emission reductions rather than a regulatory program. The states and tribes will not trigger the trading pr ogram in 2013 unless this incentive process does not appear to be effective. The decision will not be made lightly. However, it is impossible to identify all of the factors that must be considered in this decision process at this point in time.

PacifiC o rp A6 Allowance
Allocations PacifiCorp included additional comments regarding the principles and equity issues that must be considered in the allocation process that are listed in Section C, Part C1.1(a)2 of
the SIP Wyoming notes and appreciates PacifiCorp’s general agreement with the allocation approach for utilities adopted by Wyoming. The proposed SIP contains an allocation methodology for utilities in the event that the program is triggered. As described in the SIP, WDEQ is participating in ongoing discu ssions with the other 309 states to ensure that all of the principles and equity issues that are listed in the SIP have been addressed in this methodology. PacifiCorp’s perspective on how each of the principles and equity issues affect the allocation proc ess will be an important part of the ongoing discussions. No changes are recommended to the SIP text at this time.5 PacifiC orp A7 Early Reduction
Credits C1.1(a)3. and (b)5. This provision is under review and subject to approval of the §309 states and stakeholders. PacifiCorp urges Wyoming to finalize all allocation issues affecting utility
sources at the same time. It is not clear from the proposed SIP and proposed ru le language what threshold date applies to the controls eligible for this credit. The Annex language strongly suggests that it should apply to actions that occur after a state has committed itself to a §309 SIP. For simplicity, the State should use 1/1/03 as the threshold date for the installation of controls eligible for this credit. Chapter 14, Section 2(f)(v)states that the bonus allocations shall be available for reductions that occur between 2003 and the program trigger year. This is consistent with t he 1/1/03 date recommended by PacifiCorp.

PacifiC orp A8 Renewable
Resource

Credits C1.1(a)4. and (b)6. This provision is under review by certain stakeholders and subject to approval of the §309 states and stakeholders. PacifiCorp urges Wyoming to finalize all allocation issues affecting utilities at the same time. The proposed SIP contains an allocat ion methodology for utilities, and an allocation methodology for renewable energy resources. As described in the SIP and in the response to earlier comments, WDEQ is participating in ongoing discussions to ensure that the allocation process is fair and co nsistent with the goals of the backstop trading program. The renewable energy credit and the early reduction bonus allocation will be part of these discussions because the allocation process is a series of interlinked parts that cannot be considered indiv idually.6 PacifiC orp A9 Programs to
Achieve GCVTC

Renewable Energy Goal Following the existing paragraph in this subsection or some other appropriate place in this section, we ask the State to consider adding the following language from the Preamble of
EPA’s Federal Register Notice of the Final Regional Haze Rule on July 1, 1999:

“The goals themselves are not enforceable and States are not required to meet the renewable energy goals. . . . Rather, EPA is setting enforceable requirements for the States to asse ss progress toward goals established by the GCVTC with respect to renewable energy production as a means for reducing dependence on more polluting forms of energy production. States participating in the GCVTC strategy are responsible for explaining why the y cannot meet the GCVTC goals. The required reporting by the States will inform the public of air quality improvements that would result from that goal had it been realized. It is the relationship between renewable energy production and associated environm ental effects (direct and indirect) that is the thrust of the assessment and reporting effort under the SIP.” (at 35754

- 55) This paragraph has not been added. This statement of the intent of 40 CFR 51.309(d)(8) matches our understanding but the Preamble carries the same weight whether or not it is included in the SIP and generally, we do not repeat language from the Preamble within the SIP.7 PacifiC orp A10 Geographic
Enhancements PacifiCorp agrees that this approach should be voluntary. We urge Wyoming and the WRAP to continue working with the federal land managers in order to refine the approach that will be used to address RAVI given that regional emissions are being reduced under the haze program. This will inevitably require some resolution of how so

- ca lled “hot spot” areas are identified and addressed in the context of the regional haze program. While the work of WESTAR and the WRAP has moved us in that direction, a few significant policy issues remain unresolved (e.g., data interpretation methods revea ling significant emission spikes within Class I areas that would qualify them as genuine “hot spots” and identifying a portfolio of remedies if they become necessary). Wyoming’s current visibility SIP addresses reasonably attributable visibility impairment (RAVI). Section K of the SIP addresses the relationship between the existing RAVI SIP and the new regional haze SIP. This section states, “If the federal land manager certifies impairment, the State of Wyoming will fulfill its obligations to determine a ttribution and if necessary determine BART for the applicable source or group of sources in accordance with Wyoming’s SIP for visibility protection approved by EPA on February 15, 1989 through a notice in the Federal Register. The Wyoming SIP for reasonabl y attributable visibility became effective on April 17, 1989.” Wyoming is committed to continue working with the federal land managers in order to refine the approach that will be used to address RAVI given that regional emissions are being reduced under t he haze program.

PacifiC orp A11 As discussed earlier in these comments (introductory paragraphs to “A. Projection of Visibility Improvement” and “C. Stationary Sources”), PacifiCorp strongly urges the state to address BART for regional haze purposes for the sources covered by this program in the 2003 SIP. The initial SIP pursuant to Section 309 focuses on implementing the GCVTC recommendations for the Sixteen Class I areas on the Colorado Plateau. The State of Wyoming has made a declaration in this submittal that it intends to address other Class I areas pursuant to Section 309(g) of the Rule in a SIP revision no later than December 31, 2008. In part, that decision was informed by the modeling work conducted by the WRAP to verify the Annex analysis, in which it was shown that in addition to the 16 Class I areas on the Colorado Plateau, the regional SO 2 milestones resulted in visibility improvements in Wyoming’s Class I areas as well. This demonstration can be found in Section 4.1.2 of the WRAP Technical Suppo rt Document. In accordance with Section 309(g), although additional strategies may be required to show reasonable progress for other Class I areas, no further demonstration or SO 2 strategies will be required for Wyoming’s stationary sources that are alread y included in the 309 regional SO 2 milestone program

.8 National Park Service A12 NO x and PM
Control Strategies Section D.3 of the proposed plan discusses the role of NO x and PM in regional haze. Language used by the State indicates that some determination of the need for these strategies has already been made; perhaps giving the impression that there may be little future concern for these pollutants as regional
haze contr ibutors. The NPS would prefer, based on the incompleteness of current work the WRAP is engaged in on this subject, that the State stress the ongoing assessment of the visibility impacts of NO x and PM, and the potential control strategies to address those i mpacts. It would be appropriate to indicate that determinations of these impacts and strategies will be addressed in future revisions of the plan. It would also be most informative of the current status of this requirement
to state that until future assess ments are completed, the State cannot determine what level of control, if any, of NO x and PM through a stationary source milestone program, would be appropriate. Additional language has been included in this section to attempt to clarify, and perhaps offse t, any mistaken impression that Wyoming believes there is little future concern for NO x and PM as contributors to regional haze. The statements made in the proposed plan represent the current state of analyses, which we agree is incomplete, and which must be reassessed based on more complete and accurate analyses prior to the 2007/2008 SIP revision. We have added “The State of Wyoming will continue to work with the WRAP to improve the emission inventories and regional modeling to support future policy deci sions regarding stationary source NO x and PM emissions.” to the final paragraph of this section.

National Park
Service A13 Geographical
Enhancement Program The National Park Service notes that the second paragraph under K1 identifies only the National Park Service as the federal land manager. We also caught this deficiency and substituted the broader “federal land manager” language. Thank you for your comment.

National Park
Service A14 Additional Class
I Areas Section L.1 of the proposed regional haze SIP discusses reasonable progress for additional mandatory Class I areas not part of the 16 Colorado Plateau areas and lists the 7 mandatory Class I areas in Wyoming. For purposes of the federal requirement under S ection 309(g), we believe the plan should indicate that the 2008 regional haze plan update will
need to address out

- of

- state Class I areas that may be affected by transport of emissions from Wyoming in addition to the 7
areas in the State Section 309 of th e regional haze rule requires that the 2003 plan address the 16 Class I areas of the Colorado Plateau. Other Class I areas do not need to be addressed until 2008. 40 CFR 51.309(g) provides a mechanism to apply 309 control strategies to other Class I area s within states that submit SIPs under Section 309. Wyoming is making this declaration in its plan. Other 309 States are declaring within their 309 SIPs whether they will address the additional Class I areas within their borders by implementing 309 strate gies, or by following the provisions of Section 308. Wyoming will, of course, work with other states within the WRAP in addressing impairment in Class I areas outside Wyoming’s borders.9 Powder River Basin Resource Council A15 Road Dust The Powder River Basin Resource Council expressed concern that the WDEQ’s statement that “NO x and PM strategies are
not needed based on current information” does not take into
account the extensive amount of road and construction dust associated with coalbed methane development . The PRBRC goes on to state that it feels more PM and NO x is necessary throughout the Powder River Basin. Additional language has been included in this section to attempt to clarify, and perhaps offset, any mistaken impressions that Wyoming believes there is little future concern for NO x and PM as contributors to regional haze. The statements made in the proposed plan represent the current state of analyses, which we agree is incomplete, and which must be reassessed based on more complete and accurate anal yses prior to the 2007/2008 SIP revision. We have added “The State of Wyoming will continue to work with the WRAP to improve the emission inventories and regional modeling to support future policy decisions regarding stationary source NO x and PM emissions .” to the final paragraph of this section. Regarding monitoring, the State agrees that additional monitoring is desirable, particularly given that current computer modeling does a poor job dealing with fugitive PM emissions. Outside of the context of regio nal haze, the DEQ is already deploying more NO x and PM monitors in the Basin and, in addition, has a line item in the budget for the next biennium to support the placement of even more monitoring stations throughout the State, including the Powder River

Ba sin.

As a final note, the general positive support of the PRBRC for the State’s decision to proceed with the 309 option is appreciated.

The Center for Energy and Economic Development A16 General It is premature for Wyoming to take any administrative action on the RHR by choosing § 308 or § 309 as an option because of uncertainty created by American Corn Growers Assoc. v EPA, 291 F.3d 1 (D.C.Cir 2002) decision which invalidated RHR especially BART provisions. EPA’s approval of the Annex on June 5, 2003 addressed the impact of the May 24, 2002 American Corn Growers Decision (Federal Register, Vol.68, No. 108, pages 33766

- 33767). The approval notice states, “The American Corn Growers court decision did not address the provisions in the regional haze rule a llowing States to adopt a trading program or other alternative measures in place of source specific measures for BART sources.” The State of Wyoming has developed a SIP under Section 309 of the Regional Haze Rule based on years of work with the Grand Canyo n Visibility Transport Commission (GCVTC) and the Western Regional Air Partnership (WRAP) that identified the best approach to address regional haze on the Colorado Plateau. The approach is flexible, and addresses all of the significant sources of haze in the west. The 309 approach also includes provisions allowing States to address other Class I areas beyond those on the Colorado Plateau. The American Corn Growers decision does not change these underlying reasons for implementing the regional approach allo wed under Section 309 of the Regional Haze Rule.
The Center for Energy and Economic Development A17 General Wyoming should not commit to a specific regional haze implementation approach until after EPA has responded to the court’s remand of the RHR because § 309 is one of the BART provisions affected by Corn Growers decision Although CEED has filed a challenge to the Annex

- it is valid law until overturned/remanded. Pursuant to § 307(d)(7)(B) of the CAA [42 USC 7607(d)(7)(B)], “reconsideration of a rule sha ll not postpone the effectiveness of the rule. The effectiveness of the rule may be stayed by court order for up to 3 months.” There is no stay order in effect for these rules.10 The Center for Energy
and
Economic Development A18 General Wyoming Cannot adopt a RHR § 309 SIP that is not consistent
with the Federal Clean Air Act because WS § 35

- 11

- 214 requires that “ . . . Any trading program established shall be consistent with the Clean Air Act and regulations promulgated thereunder, and consistent with ambie nt air quality standards.” § 309 is a BART provision subject to additional EPA rulemaking and trading program is not consistent with CAA as it is based on group BART approach The analyses conducted by the WRAP did not utilize the Regional Haze Rule BART pr ovisions, nor did it consider factors included in a determination of BART: the Costs of Compliance, the Energy & Non

- Air Quality Impacts, the Remaining Useful Life of the Source, the Existing Pollution Controls at the source, and the Degree of Visibility Improvement Achieved. The analysis considered only an “unofficial” list of BART

- applicable sources within the region, an evaluation of potential reductions, with a large uncertainty factor to account for the fact that the list of sources and the effect of actual controls was unknown. This BART approximation exercise did not utilize the BART provisions of the Regional Haze Rule. Therefore, when these provisions were remanded to EPA, these invalidated BART provisions had absolutely no relationship to the Ann ex Milestones and trading program defined in the 309 provisions. Section 169A of the Clean Air Act gave EPA authority to 1) develop regulations to assure reasonable progress toward reaching the national goal of “prevention of any future and the remedying of any existing, impairment in visibility in mandatory Class I Federal areas which impairment results from man

- made air pollution.” 2) develop regulations requiring states to submit SIPs containing emission limits, compliance schedules, and other measur es to make reasonable progress toward meeting the national visibility goal [42 USC 7491(b)(2)]. Wyoming’s 309 Regional Haze State Implementation Plan and proposed rules meet these requirements and is therefore consistent with the CAA.11 The Center
for Ener gy and
Economic Development A19 General RHR § 309 Annex is not a rational or cost effective approach for improving visual air quality in Wyoming. CEED asserts that the Annex is "flawed" because 1) it doesn’t achieve humanly perceptible visibility improvement, 2) there was no adequate economic analysis of the program costs to western states’ economies, 3) the comparison of natural gas vs. coal costs didn’t accurately reflect the volatility of gas prices, and 4) the Annex would impose economic disincentives for new coal fired power plants. EPA’s approval of the Annex on June 5, 2003 states, “ The EPA continues to believe that the milestones provide for ‘greater reasonable progress than BART’ and for ‘steady and continuing progress’.” (FR Vol.68, No. 108, page 3 3769) The GCVTC strategies that are the basis for Wyoming’s proposed SIP are focused on achievable emission reductions from all of the emission sources that contribute to regional haze. 40 CFR 51.309(g) allows States electing to do so to address additional Class I areas, such as those in Wyoming, by building on the strategies implemented under 309 and take full credit for visibility improvement achieved through those strategies. The economic analysis for the Annex supported the earlier GCVTC conclusions tha t an incentive

- based market trading program is more cost

- effective than a traditional command

- and

- control approach. An incentive

- based program allows sources in all of the states to find the most cost

- effective strategies to reduce SO 2 emissions that affec t regional haze on the Colorado Plateau as well as other Class I areas that were not specifically addressed by the Annex. The Annex was negotiated by using the best information available at the time. However, the WRAP included uncertainty factors in the an alysis to address changes in the underlying assumptions. More importantly, a regional emission cap allows flexibility to adapt to changing circumstances while still achieving the same or better environmental goals. If natural gas prices remain high, the ca p will create an incentive to over control existing sources to make room under the cap for new, highly

- controlled coal

- fired power plants

. The Center for Energy
and
Economic Development A20 General Wyoming c annot meet the Requirements of RHR § 309 for a completed SIP Submittal by 12/31/03. Wyoming has developed a SIP in accordance with the requirements of Section 309 of the Regional Haze Rule and will submit that document and supporting materials by the required deadline for submission for EPA’s six month completeness review.

Arch Coal A21 General Dual SIPs The respondent alleges that because Wyoming’s Class I areas are not on the Colorado Plateau and that Section 308 of the Regional Haze Rule addresses all Class I areas that Wyoming will be required to submit a SIP under both Section 308 and 309 of the Regional Haze Rule. 40 CFR 51.309(g) allows a state electing to submit a SIP pursuant to Section 309 to make a declaration that it will address other Class I areas than those on the Colorado Plateau pursuant to the requirements of Sections 309(g)(2) and 309(g)(3) rather than pursuant to Section 308. Wyoming has elected to do so.12 

## B. Response to EPA Comment Letter Dated **May 29, 2008** Arch Coal A22 General Minority Report Concerns The Milestone Curve was a politically defined shape, and the decision on its shape was simply informed by assumptions such as power plant retirement, new source emission rates, etc. The

curve was not "based on" these assumptions.

Commenter Comment # Section Comment DEQ Response

EPA B1 Milestones When establishing milestones, WRAP used presumptive levels in some cases and source specific information in others. A consistent approach is needed. The WRAP addressed this issue in the Better Than BART demonstration in response to earlier comments from EPA (see the end of Section D, page 7). An alternate analysis was conducted that assumed that all EGUs that were subject to BART (including units that are smaller than 750
MW s or are already operating at greater than 50% control) would be operating at the presumptive SO 2 emission rate of 0.15 lb/MMBtu. The estimated SO 2 emission reductions using this simpler approach were 91,872 tons. This is comparable to the estimated redu ction of 91,760 that was calculated using the more detailed method. The participating states chose to use the more detailed method because it was based on the best information that was available rather than relying on the presumptive level for all sources . However, the alternate analysis is useful to show that a simpler consistent approach achieves the same result.

EPA B2 General The alternative program must include all BART

- eligible sources not just sources that are subject to BART. As recognized in EPA’s comments, the alternative program applies to all sources with actual emissions greater than 100 tons/year SO 2 and is likely to include all BART

- eligible sources. However, to address the possibility that there may be an unusual source that would not be included based on actual emissions, each of the participating states will either include language in their backstop trading rule to ensure that all BART

- eligible sources that are BART

- eligible due
to SO 2 emissions are subject to the backstop trading pro gram, or will include an analysis in their
SIP that demonstrates that all BART

- eligible sources meet the 100

- ton SO 2 threshold.

EPA B3 Better than
BART The alternative program does not directly address the distribution of emissions. At a minimum the SIP should include a determination, supported by a clear weight of evidence that Section 309 achieves greater reasonable progress than would be achieved through the installation and operation of BART. The WRAP conducted modeling that compared command and contr ol BART to a trading program during the development of the Annex. A new Section H has been added to the end of the Better Than BART demonstration to reference the results of that analysis that was submitted to EPA in
2000

.13 

## C. **Analysis of 309 Comments Received in Response to the October 27, 2009 Public Hearing** 

**D. Analysis of 309 Comments Received in Response to the December 8, 2010 Public Hearing** 

Commenter Comment # Section Comment DEQ Response

Powder River Basin Resource Council D1 General While it is perfectly acceptable to participate in this program as

a mechanism to reduce emissions and improve visibility in Class I areas, the program cannot be used as a shield to avoid other requirements under the Regional Haze Rule. It is not DEQ ’ s intention to use the 309 program as a shield to avoid other Regional Haze Rule requirements. It is the Division ’s belief that the State is taking advantag e of the program by taking full credit for the emissions achieved through the 309 program implemen tation. Commenter Comment # Section Comment DEQ Response

Wyoming Outdoor Council C1 Better than
BART WOC suggests that companies are submitting BART with SO 2 controls that would achieve better reduction than Section 309, and therefore these proposals should be adopted because they are achieving greater reasonable progress than the 309
program The 309 program has undergone analysis to demonstrate that the program is achieving reasonable progress that is be tter than BART. Please refer to the Demonstration that the SO 2 Milestones Provide Greater Reasonable Progress than BART document in Appendix E . In this demonstration, the State not only verifies that the program meets or exceeds presumptive SO 2 BART leve ls, but also provides other benefits of implementing the milestone program. One of these benefits includes limiting new source growth for SO 2 emissions in the participating states. In addition, the program includes every source that emits 100 tons per ye ar or greater of SO 2 , and therefore targets a greater number of sources than what would be identifi ed in the BART program. Also, t he 309 program does not only focus on stationary sources, but also includes strategies to address mobile sources, prescribed fire, pollution prevention, and Clean Air Corridors.

National Park and Fish and Wildlife Services C2 General DOI is concerned that Wyoming relied on the 309 SIP to address impacts from sulfur dioxide, pointing out that the 309 SIP focuses on Class I areas on the Colorado Plateau. Wyoming did rely heavily on the 309 SIP to address impacts from sulfur dioxide. The Rule allows the State to take credit for SO 2 reductions from the 309 program to show progr ess in Wyoming’s Class I areas. The State of Wyoming would not have participated in the 309 program in the first place if meaningful reductions were not anticipated at the monitors in Wyoming Class I areas. Wyoming Class I areas all show improvement with respect to sulfate extinction as a result of the 309 program. This improvement has been documented in the 309(g) SIP (see Table 6.2

- 2). The Regional Haze Rule allows the State to take credit for the 309 improvements when addressing 309(g) requirements.14 Commenter Comment # Section Comment DEQ Response

Powder River Basin Resource Council D2 General All of Wyoming’s Class I areas (and Class I areas in South Dakota that are impacted by Wyoming sources) are off of the Colorado Plateau. Therefore, these are additional Class I areas that must be addressed through the 309(g) plan. DEQ must fully discuss these Class I areas and establish enforceable goals. The D ivision believes that the additional Class I areas that are located outside the Colorado Plateau are appropriately addressed in the 309 SIP

. The State has modeled visibility in the additional non

- plateau Class I area monitor location s in Wyoming and s urrounding states. Table 6.2

- 2 demonstrates visibility broken down by sulfate extinction only. It can be seen in this table that all Class I areas modeled show visibility improvement for the worst days, and no degradation in visibility for the best days, thereby meeting the requirements outlined in the Regional Haze Rule. In addi tion, Table 6.2

- 1 outlines the R egional SO 2 Emissions and Milesto ne R eport summary. This table demonstrates that the 309 states have had significant SO 2 reduction and have more than exceeded the goals set by the program.

In addition to the demonstration that sulfates were reduced by the 309 program, the State also mad e a demonstration that the milestone s provide greater reasonable progress than BART. This demonstration can be found i n Appendix E of the SIP as Demonstration that the SO 2 Milestones Provide Greater Reasonable Progress than BART. As long as this demonstr ation is performed, u nder the Regional Haze Rule, EPA allows the State to take credit for any SO 2 reduction achieved in section 309, as stated in 51.309(g)(i): “ In developing long term strategies pursuant to 51.308(d)(3), the state may build upon the strat egies implemented under paragraph 9(d) of this section, and take full credit for the visibility improvement achieved through these strategies.” However, if the URP goal is not met, the Rule does not require SO 2 sources to undergo further reduction in order to meet this goal. If the URP goal cannot be met for a given planning per iod, the State must demonstrate why this goal cannot be met, which the State believes it has done in Chapter 7 of the 309(g) SIP.

Ther efore, the State believes that the additional Class I areas are appropriately addressed in the 309 SIP, and it is not necessary to further discuss SO 2 enforceable goals in the 309(g) SIP.15 Commenter Comment # Section Comment DEQ Response

Powder River
Basin
Resource
Council D3 Better than
BART Determination DEQ continues to fail to adequately demonstrate that the backstop trading program is “better than BART”. DEQ cannot rely upon the high level WRAP analysis in place of a unit

- by

- unit specific BART analysis. DEQ’s reliance on the WRAP “Better
than BART” d etermination is undercut by actions in states across the region that are implementing BART limits that are stronger than the SO 2 limits at power plants in Wyoming. While BACT may not necessarily equate to BART, the limits imposed at these new plants demon strate that a thorough BART analysis is needed in light of improved technology efficiencies and costs. The Regional Haze rule does not require that the State perform a unit

- by

- unit specific BART analysis to demonstrate that the backstop trading program is “Better than BART”. EPA clearly explains the intent for the Rule in the Federal Register, Volume 71, No. 198, Dated October 13, 2006 / Rules and Regulations, in the second paragraph on page 60615: “ As discussed in more detail below, today’s rule also make s clear that where a trading program or other similar alternative program has been designed primarily to meet a Federal or State requirement other than BART, the State can use a more simplified approach to demonstrating that the alternative program will ma ke greater reasonable progress than BART.” The following statement is also made in the same Federal Register on page 60618, middle column, second paragraph: “The regulations finalized today therefore provide that where an emissions trading program has
bee n designed to meet a requirement other than BART, including the reasonable progress requirement, the State may establish a BART benchmark based on an analysis that includes simplifying assumptions about BART control levels for sources within a source categ ory.”

Therefore, DEQ believes that the State ’ s “Better than BART” determination is adequate. As demonstrated, EPA does not require the analysis to be performed on a unit

- by

- unit basis. Since the procedure for making the “Better than BART” determination m eets EPA ’ s requirements, DEQ does not believe that a thorough BART analysis needs to be performed in light of improved technology efficiencies and costs.

Powder River Basin Resource Council D4 General DEQ needs to demonstrate that this plan will still be effective and enforceable if only a few states are participating. DEQ also needs to explain why the state is still participating in the program when other states like Colorado and Arizona have dropped from the program. The 309 program is not dependent upo n the number of participating states, and therefore will be effective and enforceable regardless of the number of participating states. The 309 program establishes a reduction strategy and at the same time allows flexibility on how the
State will achieve its goals. The program includes every source that emits 100 tons per year or greater of SO 2 , and therefore targets a greater number of sources than what would be identified in the BART program. These benefits have been significant contributing factors in
the Division ’ s decision that the 309 program is the best option for the State of Wyoming.16 Commenter Comment # Section Comment DEQ Response

Powder River
Basin
Resource
Council D5 General The plan is very unclear as far as what SO 2 limits will actually be achieved at stationary sources in Wyoming. There is a lack of transparency in the draft SIP about reasonable progress goals and how they will be enforced. The state must provide a demonstration in its SIP of how the backstop trad ing program is meeting its visibility goals and why SO 2 controls are not needed under reasonable progress. The 309 program is regional, and therefore milestones are estimated on a regional basis. As a result, there are not any specific SO 2 limits set for Wyoming alone. The reasonable progress goals for this program are set in the form of milestones. If these milestones are not achieved, the enforcement act ion will be the trigger of the Backstop Trading P rogram. A demonstration that the program is meeti ng visibility goals and achieving greater reasonable progress than what is required by BART can be found in Appendix E as Demonstration that the SO 2 Milestones Provide Greater Reasonable Progress than BART

. Additional SO 2 controls are not necessary if the milestones have been met, and the 309 program is shown to achieve greater reasonable progress than BART.

Earthjustice D6 Greater Reasonable Progress than
BART The alternative 309 program does not appear to be an improvement over BART for Colorado Plateau Class I area s

. AQD must either demonstrate the superiority of the alternative program based on complete and accurate information, or require installation and operation of BART for SO 2 emissions at Wyoming sources subject to BART. The Division has demonstrated the superiority of the 309 program in the Demonstration that the SO 2 Milestones Provide Greater Reasonable Progress than BART document in Appendix E. In this demonstration, the State not only verifies that t he program meets or exceeds presumptive SO 2 BAR T levels, but also provides other benefits of implementing the milestone program. One of these benefits includes limiting new source growth for SO 2 emissions in the participating states. In addition, the pro gram includes every source that emits 100 tons per year or greater of SO 2 , and therefore targets a greater number of sources than what would be identified in the BART program. DEQ believes that this conclusion is based on complete and accurate information

.

Earthjustice D7 Greater Reasonable Progress than
BART In most cases this “Better

- than

- BART” determination must be based on an analysis of BART technology and corresponding emission reductions achievable for each source that is subject
to BART within the state. By relying on an inflated presumptive
SO 2 emission rate for power plants, rather than a lower emission rate achievable through BART, WRAP has improperly discounted the visibility improvement that may be achieved through implementation of BART on el igible sources. It is not required by the Regional Haze Rul e that the State perform source

- specific BART analyses to determine that the 309 program has achieved better than BART reductions. EPA clearly explains the intent for the Rule in the Federal Regis ter, Volume 71, No. 198, Dated October 13, 2006 / Rules and Regulations, in the second paragraph on page 60615: “ As discussed in more detail below, today’s rule also makes clear that where a trading program or other similar alternative program has been des igned primarily to meet a Federal or State requirement other than BART, the State can use a more simplified approach to demonstrating that the alternative program will make greater reasonable progress than BART.” The following
statement is also made in th e same Federal Register on page 60618, middle column, second paragraph: “The regulations finalized today therefore provide that where an emissions trading program has been designed to meet a requirement other than BART, including the reasonable

progress re quirement, the State may establish a BART benchmark based on an analysis that includes simplifying assumptions about BART control levels for sources within a source category.” Since EPA allows the State to use a simp lified approach to analyze BART

- eligibl e sources, i t is appropriate to use 40 CFR p art 51 Appendix Y to determine presumptive levels,17 Commenter Comment # Section Comment DEQ Response
rather than look at each source separately.

Therefore, the State believes that the “Better than BART” determination has been conducted appropriately, and no furt her analysis is required.

Earthjustice D8 Greater Reasonable Progress than
BART AQD apparently intends to rely o n WRAP’s “better

- than

- BART” determination. However, WRAP’s analysis does not support its
“better

- than

- BART” finding. Even if WRAP’s reliance on EPA’s presumptive SO 2 emissions limit for power plants was appropriate, it has failed to establish that the 309 alternative program achieves “greater reasonable progress” than BART. WRAP concedes that the alternative program will, at best,
result in th e same SO 2 reductions achievable through the application of BART. WRAP justified the determination in part through its claim that emissions reduction will happen sooner under the alternative program than under BART. WRAP’s Demonstration that the SO 2 Miles tones Provide Greater Reasonable Progress than
BART report (provided in Appendix E) does support the State’s better than BART finding. On Page 12 of the report it states “ The Regional SO 2 milestone of 141,849 equals the BART benchmark, but provides greate r reasonable progress than BART for the reasons outlined below..... ” The report continues to explain the additional advantages of the 309 program such as early reductions, the addition of sources that would not be included in BART, a cap in new source growt h, the inclusion of strategies to address mobile sources, prescribed fire, pollution prevention and clean air corridors, tribal set asides, and an improvement in Class I areas off the Colorado Plateau. The report does not state that “emission reductions w ill happen sooner under the alternative program than they would under BART”, but rather that the program will

“ contain specific provisions to encourage and reward early emissions reduction... ” This program has achieved a 60% SO 2 reduction from 1990 to 2008, verifying that this program has been successful in achieving early reduction. DEQ believes that WRAP has adequately demonstrated that the 309 program has achieved better than BART progress.

Earthjustice D9 General AQD attempts to justify its laggardly progress toward natural visibility by pointing to “[m]ajor reductions in SO 2 emissions” due to the 309 alternative program. DEQ is not attempting to justify its laggardly progress toward natural visibility conditions by pointing out the progress made by th e 309 program. The state is permitted to take full credit
for SO 2 emissions achieved in the 309 program according to 51.309(g)(20(i): “ ...the State may build upon the strategies implemented under paragraph (d) of this section, and take full credit for the v isibility improvement achieved through these strategies”. The State is taking full advantage of the 309 program and taking credit for SO 2 reductions achieved by the program. The State has made great strides for reducing SO 2 emissions from the 309 program and found it appropriate to mention in the SIP

. As explained in Section 7.6 of the 309(g) SIP, the biggest impediment to reaching natural visibility goals is wildland fires.18 Commenter Comment # Section Comment DEQ Response

Earthjustice D10 Better than
BART According to section 51.308(e)(3) when the “distribution of emissions is not substantially different than under BART, and the alternative measure results in greater emissions
reductions...” , WRAP cannot lawfully comply with the “greater reasonable progress” requirement using the alternative
method. T he Demonstration that the SO 2 Milestones Provide Greater Reasonable Progress than BART report found in Appendix E take s into account new source growth. For sources that have the potent ial to emit greater than 100 tpy of SO 2 , the 309 program places a cap on all new source growth. There is no such c ap placed on the sources regulated under 51.308 , which can continue to grow as long as the source meets the permitting requirements. Greater emission reductions will occur with respect to new sources under the 309 program.

Wyoming
Outdoor
Council D11 Better than
BART It appears that the State of Wyoming is poised to propose a 309 SIP that is more protective of visibility in Class I areas than what is proposed in BART. We hope this will be true and we would support enhanced levels of sulfur dioxide. It is true that the Sate of Wyoming proposes to achieve greater SO 2 reductions than what would be achieved by the BART program. The demonstration can be found in WRAP’s
Demonstration that the SO 2 Milestones Prov ide Greater Reasonable Progress than BART report that is provided in Appendix E. The report explains the additional advantages of the 309 program such as early reductions, the addition of sources that would not be included in BART, a cap in new source gro wth, the inclusion of strategies to address mobile sources, prescribed fire, pollution prevention and clean air corridors, tribal set asides, and an improvement in Class
I areas off of the Colorado Plateau.

Wyoming
Outdoor
Council D12 General Based on discussions with the DEQ, it appears that the base year will be updated to 2006. The base year has been changed to 2006 because the program was reworked after EPA
rewrote the rule on alternatives to BART in 2005.

Wyoming
Outdoor
Council D13 General We belie ve that it is critical that SO 2 controls mee t reasonable progress in all Class I areas outside of the Colorado Plateau region. In addition to the visibility demonstration for the Colorado Plateau shown in Section A of the SIP, v isibility impacts under the 309 program were modeled at all Wyoming Class I areas, and Class I areas in surrounding states. It can be seen in Table 4 of the Demonstration that the SO 2 Milestones Provide Greater Reasonable Progress than BART report that visibility with respect to
SO 2 impairment in all surrounding Class I areas improves on the 20% worst days and improves or remains flat on the 20% best days.19 Commenter Comment # Section Comment DEQ Response

Wyoming
Outdoor
Council D14 Better than
BART It would be appreciated if DEQ could confirm that the proposed
SO 2 limits proposed b y the utilities in their draft BART permits will indeed be bettered by the provisions that will be in place
under the new 309 SIP. The goal of the 309 program is to achieve greater overall SO 2 reduction than what would be achieved by BART. As specified in the Demonstration that the SO 2 Milestones Provide Greater Reasonable Progress than BART report, the 309 program achieves this goal. Thus, the program attains greater SO 2 reductions than what is proposed by the utilities.

The demonstration is regional , and a unit

- by

- unit analysis is not required. It is not required by the Regional Haze Rul e that the State perform source

- specific BART analyses to determine that the 309 program has achieved better than BART reductions. EPA clearly explains the intent f or the Rule in the Federal Register, Volume 71, No. 198, Dated October 13, 2006 / Rules and Regulations, in the second paragraph on page 60615: “ As discussed in more detail below, today’s rule also makes clear that where a trading program or other similar alternative program has been designed primarily to meet a Federal or State requirement other than BART, the State can use a more simplified approach to demonstrating that the alternative program will make greater reasonable progress than BART.” The follow ing statement is also made in the same Federal Register on page 60618, middle column, second paragraph: “The regulations finalized today therefore provide that where an emissions trading program has been designed to meet a requirement other than BART, incl uding the reasonable progress requirement, the State may establish a BART benchmark based on an analysis that includes simplifying assumptions about BART control levels for sources within a source category.”

Wyoming
Outdoor
Council D15 General It is difficu lt to justify putting forth significant changes to the
309 SIP relative to SO 2 controls but to not do likewise with respect to the 309(g) SIP and NO x and PM controls

. Changes that were made to the SO 2 SIP were specific to the goals and objectives of that program that did not carry over into the 309(g) SIP.

Wyoming
Outdoor
Council D16 General We believe that the current massive amount of technical language that is found in these SIPs is language that ver y few can really understand, and thus defeats this important underlying purpose and policy. Consequently we ask the AQD to correct this problem, and make this important public policy statement regarding regional haze and the protection of iconic The DEQ has strived to present a highly technical subject in a manner that is understandable by the general public. Unfortunately, due to the technical nature of the topic, and the rules set forth by the Regional Haze Rule, it is not possible to completely remove all technical language. The Division has posted additional background information for the public on the DEQ website: http://deq.state.wy.us/aqd/regionalhaze.asp . The additional information is aimed at helping the public understand regional haze and what is required by the Rule and Implementation20 Commenter Comment # Section Comment DEQ Response

Class I a reas fully understandable to the public

- at

- large, not just a few specialist s

. Plan. The SIP contains a Regional Haze Glossary of Visibility Acr onyms, Abbreviations, and
Terms in the Technical Support Document to assist in technical language understanding. The Division has also held numerous public meetings to discuss and answer questions on the Regional Haze SIP.

Wyoming
Outdoor
Council D17 General Comments were submitted to the AQD on October 19, 2010. In our view, the current draft SIPs do not make it clear that these prior comments have been fully considered. All of these noted comments were received in the appropriate commenting period, and have been addressed by the DEQ in this SIP revision. The DEQ has taken each comment seriously
and has prepared a response to each comment. All responses can be found in the Technical Support Document. The comments that are 309 related take a little longer to answer since they must be reviewed by all of the 309 states, and consistent conclusion s must be developed between all stakeholders. However, all responses to 309 comments are also included in the Technical Support Document.

Wyoming
Outdoor
Co uncil D18 Better than
BART There is not a plain statement in the 309 SIP that AQD views the program as meeting the “better than BART” requirements. We ask AQD to insert into the 309 SIP a plain statement of why the 309 SIP is better than BART, and how precisely that is being achieved, and as importantly, how compliance with the requirement will be maintained and assured. The following language has been added to the SIP

, Section 3 Part 1: “ The definitions associated with this section are provided in App endix A of this document. A demonstration of how the Backstop Trading Program is better than applying BART to stationary sources is included in Appendix E of this document.”

WRAP’s Demonstration that the SO 2 milestones Provide Better Reasonable Progress than BART report has been included in Appendix E.

Wyoming
Outdoor
Council D19 BART The Wyoming Outdoor Council (WOC) commented that the AQD has certified that visibility impairment is occurring in a
number of Class I areas due to pollution from a number of power/trona plants. They believe AQD should initiate BART permitting for these plants under the reasonably attributable visibility impairment (RAVI) rule, and that such permitting
should include sulfur dioxid e controls as well as nitrogen oxides and particulate matter controls. Since adoption of Wyoming’s Visibility SIP and visibility regulations to address reasonably attributable visibility impairment (RAVI), neither the Federal Land Managers of any Class I a rea nor the Division has certified that visibility impairment, attributable to a source or small group of sources, exists in any Wyoming Class I area pursuant to provisions in Chapter 9, Section 2 of the WAQSR (RAVI).21 Commenter Comment # Section Comment DEQ Response

Wild Earth
Guardians D20 Better than
BART The Better than BART document does not appear to meet the requirements of Section 309. As described in the Better than BART demonstration, the milestones were established to meet the broader reasonable progress goals established by the Grand Canyon Vi sibility Transport Commission. Because the milestones were developed primarily to meet the broader goal, the Regional Haze R ule in section 308(e)(2)(c) provides that “the State may determine the best system of continuous emission control technology and as sociated emission reductions fro m similar types of sources within a source category based on both source

- specific and category

wide information, as appropriate.” Presumptiv e BART was used as the category

- wide estimate
of the emission reductions achievable due to BART, although in some cases more stringent estimates were used for sources that had already been permitted for other reasons. These estimates were used to establish a benchmark to compare with the alternative program. The
milestones meet the ben chmark. However, as explained in the document, the milestones

pr ovide much greater benefits than would be achieved by BART. The program includes all sources with emissions greater than 100 tons/year of SO 2 , and most of those sources would
not be affected by BART. The program ensures that new source growth will not undermine the progress that is achieved by emission reductions from existing sources. The program also encourages early reductions.

Wild Earth
Guardians D21 General The 309 Program must be enforceable. The documents that were recently released for public comment address changes to the milestones to account for changes in the states that are participating in the program, changes in the growth projections for the electricity sector, and improv ements in the estimate of the
emission reductions achiev able due to BART. The enforceable tracking system and enforceable Backstop Trading P rogram that were put into place to ensure that the milestones are met have not been changed since the 2003 SIP and will apply to the revised milestones. The Section 309 States have prepared milestone reports annually since 2003 to compare actual emissions to
the milestones. If the milestones are exceeded, a Backstop Trading P rogram will be triggered.
The details of this program ar e specified in the WEB Trading Program R ule that is included in the 2003 SIPs. The program i s currently enforceable at the S tate level, and will be enforceable by EPA when the program is approved into the SIPs for each of the participating states.22 Commenter Comment # Section Comment DEQ Response

Wild Earth
Guardians D22 General The 309 States still do not have SIP provisions that address NO x and PM. Each of the Section 309 states has developed provisions to address NO x and PM. These provisions are not part of the regional program and are therefore not addressed in the
documents that were recently released for public comment on the revised milestones. Each of
the states will ta ke the Regional Milestones and Backstop Tra ding P rogram through thei r own rul emaking process. The State of Wyoming addresses NO x and PM through a 309(g) SIP which has been reviewed separately from the SO 2 SIP.

Peabody

Energy D23 General Peabody recommends that the SIP contains a more complete discussion of how the new milestones satisfy the requirements
of the American Corn Growers Association and Center for Energy and Economic Development legal documents. When developing the milestones for the 309 program, the participating 309 States followed EPA’s most recent 309 Regional Haze Rule. This rule was revised to incorporate the two mentioned legal documents in 2006. The State of Wyoming did not find it necessary to reiterate what was outlined in the 309 rule and EPA’s preamble to the rule: http://frwebgate2.access.gpo.gov/cgi

bin/PDFgate.cgi?WAISdocID=orvWCF/0/2/0&WAISaction=retrieve

.