33642 Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Rules and Regulations 

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$700 ........ 6.00 

$800 ........ 7.00 $2,499 max ......................................................................... $24.00. 

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The maximum value of a GXG 

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value. 

Size Limits (211.22) 

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(382) 

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* * * * * 

Stanley F. Mires, 

Attorney, Legal Policy & Legislative Advice. 

[FR Doc. 2012–13637 Filed 6–6–12; 8:45 am] 

BILLING CODE 7710–12–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 51 and 52 

[EPA–HQ–OAR–2011–0729; FRL–9672–9] 

RIN 2060–AR05 

Regional Haze: Revisions to 

Provisions Governing Alternatives to 

Source-Specific Best Available Retrofit 

Technology (BART) Determinations, 

Limited SIP Disapprovals, and Federal 

Implementation Plans 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The EPA is finalizing 

revisions to our rules pertaining to the 


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1See Federal Implementation Plans to Reduce 

Interstate Transport of Fine Particulate Matter and 

Ozone, 76 FR 48208 (August 8, 2011). 

2See Rule to Reduce Interstate Transport of Fine 

Particulate Matter and Ozone (Clean Air Interstate 

Rule); Revisions to Acid Rain Program; Revisions to 

the NOX SIP Call; Final Rule, 70 FR 25162 (May 12, 

2005). 

regional haze program. In this action, 

the EPA is finalizing our finding that the 

trading programs in the Transport Rule, 

also known as the Cross-State Air 

Pollution Rule (CSAPR), achieve greater 

reasonable progress towards the 

national goal of achieving natural 

visibility conditions in Class I areas 

than source-specific Best Available 

Retrofit Technology (BART) in those 

states covered by the Transport Rule. In 

this action, the EPA is also finalizing a 

limited disapproval of the regional haze 

State Implementation Plans (SIPs) that 

have been submitted by Alabama, 

Georgia, Indiana, Iowa, Louisiana, 

Michigan, Mississippi, Missouri, North 

Carolina, Ohio, Pennsylvania, South 

Carolina, Virginia and Texas because 

these states relied on requirements of 

the Clean Air Interstate Rule (CAIR) to 

satisfy certain regional haze 

requirements. To address deficiencies in 

CAIR-dependent regional haze SIPs, in 

this action the EPA is promulgating 

Federal Implementation Plans (FIPs) to 

replace reliance on CAIR with reliance 

on the Transport Rule in the regional 

haze SIPs of Georgia, Indiana, Iowa, 

Kentucky, Michigan, Missouri, Ohio, 

Pennsylvania, South Carolina, 

Tennessee, Virginia and West Virginia. 

DATES: This final rule is effective on 

August 6, 2012. 

ADDRESSES: Docket. The EPA has 

established a docket for this action 

under docket ID No. EPA–HQ–OAR– 

2011–0729. All documents in the docket 

are listed in the www.regulations.gov 

index. Although listed in the index, 

some information is not publicly 

available, e.g., confidential business 

information or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in 

www.regulations.gov or in hard copy at 

the Air and Radiation Docket and 

Information Center, EPA/DC, EPA West 

Building, Room 3334, 1301 Constitution 

Ave. NW., Washington, DC The Public 

Reading Room is open from 8:30 a.m. to 

4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744, and the telephone 

number for the Air Docket is (202) 566– 

1742. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Martha Keating, Office of Air Quality 

Planning and Standards, Air Quality 

Policy Division, Mail code C539–04, 

Research Triangle Park, NC 27711, 

telephone (919) 541–9407; fax number: 

919–541–0824; email address: 

keating.martha@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this action apply to me? 

This action affects state and local air 

pollution control agencies located 

within the geographic areas covered by 

the Transport Rule 1 and whose regional 

haze SIP relied on CAIR 2 as an 

alternative to BART for sulfur dioxide 

(SO2) and/or nitrogen oxide (NOX) for 

electric generating units (EGUs) subject 

to BART requirements, or whose 

regional haze SIP relied on the 

Transport Rule. Some of the EGUs 

located in such geographic areas may 

also be affected by this action in that 

affected states now have the option of 

not requiring such EGUs to meet sourcespecific BART emission limits to which 

these EGUs otherwise could be subject. 

These sources are in the following 

groups: 

Industry group SIC a NAICSb

Electric Services ................................................................................................ 492 221111, 221112, 221113, 221119, 221121, 221122 

aStandard Industrial Classification. 

b North American Industry Classification System. 

B. Where can I get a copy of this 

document and other related 

information? 

In addition to being available in the 

docket, an electronic copy of this notice 

will be posted at http://www.epa.gov/ 

ttn/oarpg/new.html under ‘‘Recent 

Actions.’’ 

C. How is this notice organized? 

The information presented in this 

notice is organized as follows: 

I. General Information 

A. Does this action apply to me? 

B. Where can I get a copy of this document 

and other related information? 

C. How is this notice organized? 

II. Background and General Legal 

Considerations for the EPA’s Final 

Action 

A. Background 

1. Criteria for Developing an Alternative 

Program to BART 

2. What is the relationship between BART 

and CAIR? 

3. Remand of CAIR and Implications for 

State Regional Haze Implementation 

Plans 

4. The Transport Rule and Regional Haze 

SIPs 

B. Summary of the EPA Responses to 

General and Legal Issues Raised in 

Public Comments 

1. Authority for an Alternative Trading 

Program 

2. Effect of the Transport Rule Stay 

3. Rationale for Disapproval of SIPs Based 

on CAIR 

4. The Relationship Between a BetterThan-BART Determination and 

Reasonable Progress 

III. Technical Analysis Supporting the 

Determination of the Transport Rule as 

an Alternative to BART 

A. What analysis did we rely on for our 

proposed determination? 

1. Application of the Two-Pronged Test 

2. Identification of Affected Class I Areas 

3. Control Scenarios Examined 

4. Emission Projections 

5. Air Quality Modeling Results 

B. Summary of the EPA Responses to 

Comments on the Technical Analysis 

1. Comments Related to the Emissions 

Scenarios Used in the EPA’s Analysis 

2. Identification of Affected Class I Areas 

3. Ozone Season-Only Transport Rule 

States 

4. Comments Asserting That the EPA 

Needs To Re-Do the Analysis 

IV. Reasonably Attributable Visibility 

Impairment (RAVI) 

A. What did the EPA propose? 

B. Public Comments Related to RAVI 

C. Final Action on RAVI 

V. Limited Disapproval of Certain States’ 

Regional Haze SIPs 

A. What did the EPA propose? 

B. Public Comments Related to Limited 

Disapprovals 

C. Final Action on Limited Disapprovals 

VI. FIPs 

A. What did the EPA propose? 

B. Public Comments on Proposed FIPs 

C. Final Action on FIPs 

VII. Regulatory Text 

A. What did the EPA propose? 

B. Clarification of Final Regulatory Text 

VIII. Statutory and Executive Order Review 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 


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3The preamble to the proposed rule provides 

additional background on the visibility 

requirements of the Clean Air Act and the EPA’s 

Regional Haze Rule. 76 FR 82221–22. 

4The Regional Haze Rule also allows for a 

demonstration that an alternative program provides 

for greater reasonable progress to be based on the 

clear weight of evidence. 40 CFR 51.308(e)(2)(E). 

We concluded that a more general test may be 

appropriate in certain circumstances, such as 

where, for example, technical or data limitations 

limit the ability of a state (or the EPA) to undertake 

a robust comparison using the test set out in 40 CFR 

51.308(e)(3). 

5While the Regional Haze Rule directs the state 

to conduct the air quality modeling study, as 

described in section III.C.2, the EPA itself 

conducted such a study for CAIR and through a 

notice-and-comment rulemaking codified the 

conclusion that the stated criteria were met by 

adding specific provisions allowing the use of CAIR 

in lieu of source-specific BART. We have now done 

the same for the Transport Rule. 

6The ‘‘decline’’ is relative to modeled future 

baseline visibility conditions in the absence of any 

BART or alternative program control requirements. 

7See North Carolina v. EPA, 531 F.3d 896; 

modified by 550 F.3d 1176 (D.C. Cir. 2008). 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act 

IX. Statutory Authority 

II. Background and General Legal 

Considerations for the EPA’s Final 

Action 

A. Background 

Section 169A(b)(2)(A) of the CAA 

requires states to revise their SIPs to 

contain such measures as may be 

necessary to make reasonable progress 

towards the natural visibility goal, 

including a requirement that certain 

categories of existing major stationary 

sources built between 1962 and 1977 

procure, install, and operate BART as 

determined by the state.3 Under the 

Regional Haze Rule, states are directed 

to conduct BART determinations for 

such ‘‘BART-eligible’’ sources that may 

be anticipated to cause or contribute to 

any visibility impairment in a Class I 

area. Rather than requiring sourcespecific BART controls, states also have 

the flexibility to adopt an emissions 

trading program or other alternative 

program as long as the alternative 

provides greater reasonable progress 

towards improving visibility than 

BART. 40 CFR 51.308(e)(2). The EPA 

provided states with this flexibility in 

the Regional Haze Rule, adopted in 

1999, and further refined the criteria for 

assessing whether an alternative 

program provides for greater reasonable 

progress in three subsequent 

rulemakings. 64 FR 35714 (July 1, 1999); 

70 FR 39104 (July 6, 2005); 71 FR 60612 

(October 13, 2006). These criteria are 

described below. 

1. Criteria for Developing an Alternative 

Program to BART 

Specific criteria for determining if an 

alternative measure achieves greater 

reasonable progress than source-specific 

BART are set out in the Regional Haze 

Rule at § 51.308(e)(3).4 The ‘‘better-thanBART’’ test may be satisfied as follows: 

If the distribution of emissions is not 

substantially different than under 

BART, and the alternative measure 

results in greater emission reductions, 

then the alternative measure may be 

deemed to achieve greater reasonable 

progress. If the distribution of emissions 

is significantly different, then states are 

directed to conduct an air quality 

modeling study to determine differences 

in visibility between BART and the 

alternative program for each impacted 

Class I area for the worst and best 20 

percent of days.5 A test with the 

following two criteria (the ‘‘two-pronged 

visibility test’’) would demonstrate 

‘‘greater reasonable progress’’ under the 

alternative program if both prongs of the 

test are met: 

—Visibility does not decline in any 

Class I area,6 and 

—There is an overall improvement in 

visibility, determined by comparing 

the average differences between BART 

and the alternative over all affected 

Class I areas. 

2. What is the relationship between 

BART and CAIR? 

In May 2005, the EPA published 

CAIR, which required 28 states and the 

District of Columbia to reduce emissions 

of SO2 and NOX that significantly 

contribute to, or interfere with 

maintenance of, the 1997 national 

ambient air quality standards (NAAQS) 

for fine particulates and/or ozone in any 

downwind state. The CAIR established 

emission budgets for SO2 and NOX for 

states that contribute significantly to 

nonattainment in downwind states and 

required the significantly contributing 

states to submit SIP revisions that 

implemented these budgets. Because 

such SIP revisions were already 

overdue, the EPA subsequently 

promulgated CAIR FIPs for the affected 

states establishing cap and trade 

programs for EGUs with opt-in 

provisions for other sources. States had 

the flexibility to subsequently adopt SIP 

revisions mirroring CAIR requirements 

or otherwise providing emission 

reductions sufficient to address 

emissions that significantly contribute 

to nonattainment or interfere with 

maintenance of the NAAQS in other 

states. Many affected states adopted 

CAIR-mirroring SIPs, while others chose 

to remain under CAIR FIPs. 

As noted above, the Regional Haze 

Rule allows states to implement an 

alternative program in lieu of BART so 

long as the alternative program has been 

demonstrated to achieve greater 

reasonable progress toward the national 

visibility goal than would BART. The 

EPA made just such a demonstration for 

CAIR in revisions to the regional haze 

program made in 2005. 70 FR 39104. In 

those revisions, we amended our 

regulations to provide that states 

participating in the CAIR cap-and-trade 

programs under 40 CFR part 96 

pursuant to an EPA-approved CAIR SIP 

or states that remain subject to a CAIR 

FIP in 40 CFR part 97 need not require 

affected BART-eligible EGUs to install, 

operate and maintain BART for 

emissions of SO2 and NOX. 40 CFR 

51.308(e)(4). 

As a result of our determination that 

CAIR was ‘‘better-than-BART,’’ a 

number of states in the CAIR region, 

fully consistent with our regulations, 

relied on the CAIR cap-and-trade 

programs as an alternative to BART for 

EGU emissions of SO2 and NOX in 

designing their regional haze 

implementation plans. These states also 

relied on CAIR as an element of a longterm strategy for achieving their 

reasonable progress goals for their 

regional haze programs. 

3. Remand of CAIR and Implications for 

State Regional Haze Implementation 

Plans 

Following our determination in 2005 

that CAIR was ‘‘better-than-BART,’’ the 

D.C. Circuit Court ruled on several 

petitions for review challenging CAIR 

on various grounds. As a result of this 

litigation, the D.C. Circuit Court 

remanded CAIR to the EPA but later 

decided not to vacate the rule.7 The 

court thereby left CAIR and CAIR FIPs 

in place in order to ‘‘temporarily 

preserve the environmental values 

covered by CAIR’’ until the EPA 

replaced it with a rule consistent with 

the court’s opinion. 550 F.3d at 1178. 


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8See Federal Implementation Plans to Reduce 

Interstate Transport of Fine Particulate Matter and 

Ozone. 76 FR 48208. 

On August 8, 2011, EPA promulgated 

the Transport Rule, which was to 

replace CAIR.8 As promulgated, the 

Transport Rule would have addressed 

emissions in 2012 and later years and 

would have left the requirements of 

CAIR and the CAIR FIPs in place to 

address emissions through the end of 

2011. The D.C. Circuit, however, on 

December 30, 2011, stayed the 

Transport Rule (including the 

provisions that would have sunset CAIR 

and the CAIR FIPs) and instructed the 

EPA to continue to administer CAIR 

pending the outcome of the court’s 

decision on the petitions for review 

challenging the Transport Rule. EME 

Homer City v. EPA, No. 11–1302 

(Order). 

Many states relied on CAIR as an 

alternative to BART for SO2 and NOX for 

subject EGUs, as allowed under the 

then-current BART provisions at 40 CFR 

51.308(e)(4). These states also relied on 

the improvement in visibility expected 

to result from controls planned or 

already installed on sources in order to 

meet CAIR provisions in developing 

their long-term visibility strategy. In 

addition, many states relied upon their 

own CAIR SIPs or the CAIR FIPs for 

their states as legal justification for these 

planned controls and consequently did 

not include separate enforceable 

measures in their long-term strategies (a 

required element of a regional haze SIP 

submission) to ensure these EGU 

reductions. These states also submitted 

demonstrations showing that no 

additional controls on EGUs beyond 

CAIR would be reasonable for the first 

10-year implementation period of the 

regional haze program. 

In summary, many of the states in the 

CAIR-affected region have based a 

number of required elements of their 

regional haze programs on CAIR. 

However, as CAIR has been remanded 

and only remains in place temporarily, 

we cannot fully approve these regional 

haze SIP revisions that have relied on 

the now-temporary reductions from 

CAIR. Although CAIR is currently in 

effect as a result of the December 30, 

2011 Order by the U.S. Court of Appeals 

for the D.C. Circuit staying the 

Transport Rule, this does not affect the 

substance of the D.C. Circuit’s ruling in 

2008 remanding CAIR to the EPA. 

4. The Transport Rule and Regional 

Haze SIPs 

The Transport Rule as promulgated 

would establish Transport Rule trading 

programs to replace the CAIR trading 

programs and would sunset the 

requirements of CAIR and the CAIR 

FIPs. The Transport Rule, as 

promulgated, requires 28 states in the 

eastern half of the United States to 

significantly improve air quality by 

reducing EGU SO2 and NOX emissions 

that cross state lines and significantly 

contribute to ground-level ozone and/or 

fine particle pollution in other states. 

The rule allows allowance trading 

among covered sources, utilizing an 

allowance market infrastructure 

modeled after existing allowance 

trading programs. The Transport Rule 

allows sources to trade emissions 

allowances with other sources within 

the same program (e.g., ozone season 

NOX) in the same or different states, 

while firmly constraining any emissions 

shifting that may occur by establishing 

an emission ceiling for each state. 

In our proposal, we described a 

technical analysis that we conducted to 

determine whether compliance with the 

Transport Rule would satisfy regional 

haze BART-related requirements. This 

technical analysis is the basis of this 

final action in which we are finalizing 

our determination that the Transport 

Rule achieves greater reasonable 

progress towards the national goal of 

achieving natural visibility conditions 

than source-specific BART. For this 

final rule, an updated sensitivity 

analysis was conducted to account for 

subsequent revisions to certain state 

budgets in the Transport Rule. This 

analysis is described in section III.B.4 of 

this notice. 

B. Summary of the EPA Response to 

General and Legal Issues Raised in 

Public Comments 

The EPA has based its determination 

that the Transport Rule will achieve 

greater reasonable progress than BART 

on the approach used by the EPA in 

evaluating whether a similar program, 

CAIR, would satisfy the regional haze 

BART-related requirements. As noted 

above, the Regional Haze Rule, 

promulgated in 1999, provides states 

with the flexibility to adopt an 

emissions trading program rather than 

requiring source-by-source BART. 40 

CFR 51.308(e)(2). Some commenters 

supported our general approach and 

agreed that the Transport Rule will 

provide for greater reasonable progress. 

Other commenters, however, disagreed 

with our conclusion that the Transport 

Rule can be used as an alternative to 

BART. These commenters argued that 

we lack authority to make such a 

determination and that we cannot rely 

on the Transport Rule because of the 

current stay of that rule, and that the 

Transport Rule does not meet the 

necessary regulatory requirements for an 

alternative program in lieu of BART. 

Some commenters argued that we could 

not conclude that the Transport Rule 

provides for greater reasonable progress 

without considering each state’s 

reasonable progress goals. Other 

commenters took the position that we 

should fully approve the regional haze 

SIPs that relied on CAIR to satisfy 

certain regional haze requirements and 

that our proposed limited disapproval of 

the regional haze SIPs was unnecessary. 

1. Authority for an Alternative Trading 

Program 

As described above, in 2005 (70 FR 

39104) the EPA amended its Regional 

Haze Rule to provide that states 

participating in the CAIR cap-and-trade 

programs need not require affected 

BART-eligible EGUs to install, operate 

and maintain BART for emissions of 

SO2 and NOX. 40 CFR 51.308(e)(4). As 

EPA noted in explaining its reasons for 

adopting this approach, ‘‘[nothing] in 

the CAA or relevant case law prohibits 

a State from considering emissions 

reductions required to meet other CAA 

requirements when determining 

whether source-by-source BART 

controls are necessary to make 

reasonable progress. Whatever the origin 

of the emission reduction requirement, 

the relevant question for BART 

purposes is whether the alternative 

program makes greater reasonable 

progress.’’ 70 FR at 39143. 

The EPA’s authority to establish nonBART alternatives in the regional haze 

program and the specific methodology 

outlined above for assessing such 

alternatives have been previously 

challenged and upheld by the D.C. 

Circuit. In the first case challenging the 

provisions in the Regional Haze Rule 

allowing for states to adopt alternative 

programs in lieu of BART, the court 

affirmed our interpretation of CAA 

section 169A(b)(2) as allowing for 

alternatives to BART where those 

alternatives will result in greater 

reasonable progress than BART. Center 

for Energy and Economic Development 

v. EPA, 398 F.3d 653, 660 (D.C. Cir. 

2005) (‘‘CEED’’) (finding reasonable the 

EPA’s interpretation of CAA section 

169(a)(2) as requiring BART only as 

necessary to make reasonable progress). 

In the second case, Utility Air 

Regulatory Group v. EPA, 471 F.3d 1333 

(D.C. Cir. 2006) (‘‘UARG’’), the court 

specifically upheld our determination 

that states could rely on CAIR as an 

alternative program to BART for EGUs 

in the CAIR-affected states. The court 

concluded that the EPA’s two-pronged 

test for determining whether an 

alternative program achieves greater 


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reasonable progress was a reasonable 

one and also agreed with EPA that 

nothing in the CAA required the EPA to 

‘‘impose a separate technology mandate 

for sources whose emissions affect Class 

I areas, rather than piggy-backing on 

solutions devised under other statutory 

categories, where such solutions meet 

the statutory requirements.’’ Id. at 1340. 

Notwithstanding the decisions of the 

D.C. Circuit, several commenters argued 

that the plain language of the CAA 

precludes the EPA from allowing an 

alternative to BART. In their comments, 

these groups claimed that there is no 

statutory authority to exempt a source 

from BART, except as provided for in 

CAA section 169A(c). Under the 

interpretation of the CAA urged by these 

commenters, BART must be required at 

each BART source that causes or 

contributes to visibility impairment at 

any Class I area. The commenters point 

to recent decisions post-dating CEED 

and UARG in support of their 

arguments. 

The commenters’ arguments that the 

plain language of the CAA precludes 

reliance on the Transport Rule to satisfy 

the BART requirements were raised in 

UARG v. EPA and rejected by the D.C. 

Circuit when it denied the petitions for 

review of the EPA’s determination that 

CAIR provided for greater reasonable 

progress than BART. While the 

commenter argues that the court’s 

decision ‘‘has been undermined by 

subsequent D.C. Circuit decisions,’’ we 

disagree. The decisions cited by the 

commenter, North Carolina v. EPA, 531 

F.3d 896, 906–08 (D.C. Cir. 2008) and 

NRDC v. EPA, 571 F.3d 1245, 1255–58 

(D.C. Cir. 2009) address the 

requirements of sections 

110(a)(2)(D)(i)(I) and 172(c)(1), 

respectively. Given the differences 

between the language of these statutory 

provisions and that of section 

169A(b)(2), the courts’ interpretation of 

these other provisions of the CAA do 

not undermine the two previous rulings 

of the D.C. Circuit interpreting the 

visibility provisions of the Act. 

Similarly, the Supreme Court’s 

conclusions in Massachusetts v. EPA, 

549 U.S. 497, 528–29 (2007) regarding 

the meanings of ‘‘each’’ and ‘‘any’’ do 

not conflict with or impact the EPA’s 

reading of section 169A(b)(2) of the 

CAA or the D.C. Circuit’s conclusion 

that the agency’s interpretation of the 

statute is a reasonable one. As the CEED 

court explained, the EPA interprets this 

provision to mean that ‘‘each SIP’s 

‘emission limits, schedules of 

compliance, and other measures’ must 

‘include’ BART only ‘as may be 

necessary to make reasonable progress 

toward’ national visibility goals.’’ 398 

F.3d 653, quoting 42 U.S.C. 7491(b)(2); 

see also Central Arizona Water 

Conservation District v. EPA, 990 F.2d 

1531, 1543 (9th Cir. 1993) (upholding 

the same interpretation of section 

169A(b)(2)). We do not agree, therefore, 

that the EPA’s regulations allowing for 

the adoption of a trading program that 

provides for greater reasonable progress 

than BART in place of source-specific 

BART are inconsistent with the CAA. 

These commenters also argue that the 

EPA can exempt sources from BART 

only if the EPA complies with the 

requirements of CAA section 169A(c)(1). 

This provision of the CAA allows the 

EPA to exempt a source from the BART 

requirements, by rule, upon a 

determination that the source is not 

reasonably anticipated to cause or 

contribute to significant visibility 

impairment. As the commenters note, 

the appropriate Federal Land 

Manager(s) must agree with the 

exemption before it can go into effect. 

We do not agree that the provisions 

governing exemptions to BART apply to 

our determination that the Transport 

Rule will make greater reasonable 

progress than BART. Section 169A(b)(2) 

of the CAA requires each visibility SIP 

to contain ‘‘such emission limits, 

schedules of compliance and other 

measures as may be necessary to make 

reasonable progress toward the national 

goal * * * including * * * a 

requirement that [certain major 

stationary sources] * * * procure, 

install, and operate * * * [BART].’’ 

Based on this language, in 1999, the 

EPA concluded that if an alternative 

program can be shown to make greater 

reasonable progress toward eliminating 

or reducing visibility impairment, then 

installing BART for the purpose of 

making reasonable progress toward the 

national goal is no longer necessary. 

This interpretation of the visibility 

provisions of the CAA has been upheld 

three times by the courts, as noted 

above. 

We also received comments arguing 

that the EPA cannot rely on the 

Transport Rule as an alternative to 

BART because the emission reductions 

do not meet the requirement of 40 CFR 

51.308(e)(2)(iv) which provides that 

‘‘the emission reductions resulting from 

the emissions trading program * * * 

will be surplus to those reductions 

resulting from measures adopted to 

meet requirements of the CAA as of the 

baseline date of the SIP.’’ 

We do not agree with the comments 

that the emissions reductions resulting 

from the Transport Rule must be 

‘‘surplus to those measures adopted to 

meet requirements of the CAA as of the 

baseline date of the SIP.’’ We note that 

the requirements of 40 CFR 51.308(e)(2) 

are not directly applicable to this action, 

as the special provisions in the Regional 

Haze Rule addressing the Transport 

Rule are codified at 40 CFR 51.308(e)(4). 

Nonetheless, our determination that the 

Transport Rule will result in greater 

visibility improvement than BART is 

fully consistent with the requirement in 

40 CFR 51.308(e)(2)(iv). In promulgating 

the Regional Haze Rule in 1999, the EPA 

explained that the ‘‘baseline date of the 

SIP’’ in this context means ‘‘the date of 

the emissions inventories on which the 

SIP relies,’’ 64 FR 35742, which is 

‘‘defined as 2002 for regional haze 

purposes,’’ 70 FR 39143. Any measure 

adopted after 2002 is accordingly 

‘‘surplus’’ under 40 CFR 

51.308(e)(2)(iv). This is consistent with 

the discussion in the preamble to the 

1999 Regional Haze Rule indicating that 

the regional haze program ‘‘is being 

promulgated in a manner that facilitates 

integration of emission management 

strategies for regional haze with the 

implementation of programs for [the 

1997 ozone and PM2.5] NAAQS.’’ 64 FR 

35719. The EPA took this approach in 

the Regional Haze Rule to allow 

measures needed to attain the then new 

NAAQS to be ‘‘counted’’ as making 

‘‘reasonable progress’’ toward the 

visibility goal. The Transport Rule was 

adopted to help areas come into 

attainment with and maintain the 1997 

ozone and PM NAAQS, as well as the 

2006 24-hour PM2.5 NAAQS. The EPA 

accordingly does not view the 

requirement in 40 CFR 51.308(e)(2)(iv) 

as limiting our ability to demonstrate 

that the Transport Rule reductions are 

surplus, as defined in the Regional Haze 

Rule. 

2. Effect of the Transport Rule Stay 

Several commenters contended that 

the EPA cannot rely on the Transport 

Rule as a BART alternative because 

implementation of the rule has been 

stayed. These commenters argue that an 

alternative program in place of BART 

must constitute a ‘‘requirement,’’ and be 

enforceable, and that as long as the 

Transport Rule is stayed, it cannot 

qualify as a ‘‘requirement’’ nor can it be 

enforced. These commenters also claim 

that because the rule may change if 

affirmed only in part, the EPA cannot 

find that the Transport Rule will make 

greater reasonable progress than BART. 

We do not agree that the EPA cannot 

rely on the Transport Rule because of 

the stay imposed by the D.C. Circuit. We 

base this conclusion on both the 

structure of 40 CFR 51.308(e)(4) and on 

the long-term focus of our analysis 

underlying today’s rule. 


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9For each Class I area, the uniform rate of 

progress is based on the calculation of the steady 

rate of improvement in visibility needed to achieve 

natural background conditions by 2064. 

Neither our regulations in 2005 

addressing CAIR, nor our regulations in 

this rule addressing the Transport Rule, 

require states to participate in or 

implement these programs or to 

otherwise include enforceable measures 

in their regional haze SIPs. In 2005, 

having determined that CAIR would 

provide for greater reasonable progress 

toward the national goal than would 

BART, the EPA promulgated regulations 

providing that a state participating in 

one of the CAIR trading programs ‘‘need 

not require’’ EGUs to put on BART 

controls. Similarly, our regulations in 

this rule provide that a state subject to 

a Transport Rule FIP (or approved 

Transport Rule SIP) need not require 

BART controls on its EGUs. 

Accordingly, today’s regulations 

addressing the Transport Rule are not 

‘‘requirements’’ that a state participate 

in the interstate transport trading 

programs. Similarly, a regional haze SIP 

or FIP that relies on 40 CFR 51.308(e)(4) 

does not impose enforceable 

requirements on EGUs. However, a state 

may take advantage of this provision 

only if it is subject to an underlying 

Transport Rule FIP (or SIP approved as 

meeting the requirements of the trading 

program). We note that the underlying 

Transport Rule FIP or SIP does contain 

the applicable requirements that will 

ensure that the emissions reductions 

from the Transport Rule will occur. 

We also note that while the Transport 

Rule is not currently enforceable, the air 

quality modeling analysis underlying 

our determination that the Transport 

Rule will provide for greater reasonable 

progress than BART is based on a 

forward-looking projection of emissions 

in 2014. However, any year up until 

2018 (the end of the first regional haze 

planning period) would have been an 

acceptable basis for comparing the two 

programs under the Regional Haze Rule. 

See 40 CFR 51.308(e)(2)(iii). We 

anticipate that requirements addressing 

all significant contribution and 

interference with maintenance 

identified in the Transport Rule will be 

implemented prior to 2018. 

We do not agree with the comment 

that because the Transport Rule is 

subject to review by the D.C. Circuit, we 

cannot move ahead with our 

determination that it provides for 

greater reasonable progress than BART. 

We do not view the stay imposed by the 

D.C. Circuit pending review of the 

underlying rule as undermining our 

conclusion that the Transport Rule will 

have a greater overall positive impact on 

visibility than BART both during the 

period of the first long-term strategy for 

regional haze and going forward into the 

future. We recognize, as one commenter 

suggests, that we may be obliged to 

revisit the regional haze plans that rely 

on the Transport Rule if the rule is not 

upheld, or if it is remanded and 

subsequently revised. However, we do 

not consider it appropriate to await the 

outcome of the D.C. Circuit’s decision 

on the Transport Rule before moving 

forward with the regional haze program 

as we believe the Transport Rule has a 

strong legal basis, and given the judicial 

decree requiring the EPA to meet its 

statutory obligations to have a FIP or an 

approved SIP meeting the Regional Haze 

Rule requirements in place for most 

states before the end of 2012. 

3. Rationale for Disapproval of SIPs 

Based on CAIR 

We received comments that our 

proposed limited disapproval of the 

regional haze SIPs that rely on CAIR and 

the proposed FIPs is not necessary. 

Commenters noted that CAIR remains in 

place and that SIPs that rely on CAIR 

are fully consistent with our existing 

regulations. Some commenters 

suggested that we revise the Regional 

Haze Rule to allow states to rely on 

either CAIR or the Transport Rule to 

meet the BART requirements. 

While the regional haze program is a 

long-term program that requires states to 

submit SIPs every 10 years to assure 

continued reasonable progress toward 

natural background conditions, the 

BART requirements or alternatives to 

BART must be fully implemented by 

2018. The required establishment of 

BART limits, or an alternative to BART, 

is accordingly undertaken only once. 

Although CAIR is currently in place as 

a result of the D.C. Circuit’s stay of the 

Transport Rule, we do not anticipate 

that CAIR will continue in effect 

indefinitely. As a result, our 

determination that CAIR provides for 

greater reasonable progress than BART 

is no longer valid. This is because, as a 

general matter, any source required to 

install BART controls must maintain the 

BART control equipment and meet the 

BART emission limit established in the 

SIP so long as the source continues to 

operate. See 40 CFR 51.308(e). As BART 

would result in emission reductions 

going forward beyond 2018, our 

determination that CAIR provides for 

greater reasonable progress than BART 

was based on the assumption that the 

reductions required by CAIR would be 

enforceable requirements that would 

also apply going forward to 2018 and 

beyond. That assumption is no longer 

appropriate. We are issuing a limited 

disapproval rather than a full 

disapproval, however, to allow the 

states to rely on the emission reductions 

from CAIR for so long as CAIR is in 

place. 

4. The Relationship Between a BetterThan-BART Determination and 

Reasonable Progress 

Each state with a Class I area is 

required to set goals for each Class I area 

that provide for reasonable progress 

towards improving visibility. There 

must be one goal for the 20 percent best 

visibility days and one goal for the 20 

percent worst visibility days. States take 

into account a number of factors in 

establishing reasonable progress targets, 

including in some cases an analysis of 

the measures needed to achieve the 

‘‘uniform rate of progress’’ 9 over the 10- 

year period of the SIP and a 

determination of the reasonableness of 

such measures. 40 CFR 51.308(d)(1). 

The Regional Haze Rule does not 

mandate specific milestones or rates of 

progress, but instead calls for states to 

establish goals that provide for 

‘‘reasonable progress’’ toward achieving 

natural background conditions. 

Several commenters argued that our 

determination that the Transport Rule 

provides for greater reasonable progress 

than BART is improper because it 

considers BART in isolation, without 

reference to the consideration of the 

reasonable progress goals in the regional 

haze plans. These commenters contend 

that BART is critical to the state’s ability 

to reach its reasonable progress goals 

and that the EPA should have 

considered the impact of our proposed 

determination in instances where the 

states relied on emissions reductions 

consistent with presumptive BART to 

meet reasonable progress goals. 

The EPA disagrees with the argument 

that we cannot compare the visibility 

improvements from Transport Rule 

against those from BART without 

considering the reasonable progress 

goals of each affected regional haze SIP. 

BART is one measure for addressing 

visibility impairment, but it is not ‘‘the 

mandatory vehicle of choice.’’ CEED, 

398 F.3d at 660. As such, BART is not 

a required element of the regional haze 

SIPs so long as an appropriate 

alternative achieves greater reasonable 

progress. 

The commenters’ suggestion that 

reasonable progress goals are defined 

and that each regional haze SIP must 

accordingly ensure a certain rate of 

progress toward natural visibility also 

mischaracterizes the regional haze 

program. As noted above, the reasonable 


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33648 Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Rules and Regulations 

10Technical Support Document for 

Demonstration of the Transport Rule as a BART 

Alternative, Docket EPA–HQ–OAR–2011–0729. 

progress goals for each Class I area are 

set by the states. States, both in and out 

of the CAIR region, set their reasonable 

progress goals based, in part, on 

anticipated reductions in emissions due 

to CAIR. In setting reasonable progress 

goals, these states estimated future 

emissions in 2018 from a number of 

sources and source categories, including 

emissions from EGUs. For sources in the 

CAIR region, states relied on emissions 

reductions from CAIR—not BART—to 

estimate future EGU emissions. As a 

result, source-specific BART across the 

CAIR region is clearly not critical to the 

states’ ability to meet the goals in their 

SIPs. For the small handful of states that 

were not subject to CAIR but are now 

subject to the Transport Rule, today’s 

determination that the Transport Rule 

provides for greater reasonable progress 

than BART gives those states the 

opportunity to consider revising their 

regional haze SIPs to substitute 

participation in the Transport Rule for 

source-specific BART. Whether such a 

revision meets the requirements of the 

Regional Haze Rule, including the 

requirement that a plan include such 

measures as may be necessary to make 

reasonable progress toward the national 

goal, would be addressed in a notice 

and comment rulemaking that would 

provide an opportunity for review of the 

adequacy of such an approach. We 

disagree with the commenters’ 

statement, however, that source-specific 

BART as a general matter is necessary 

to ensure reasonable progress. 

III. Technical Analysis Supporting the 

Determination of the Transport Rule as 

an Alternative to BART 

A. What analysis did we rely on for our 

proposed determination? 

The technical analysis that the EPA 

relied on for our proposed and now 

final determination that the Transport 

Rule is better than BART is described in 

detail in the preamble of the proposed 

rule and in the Technical Support 

Document (TSD).10 To provide context 

for the summary of the public comments 

and our responses to them, we are 

providing a summary of the technical 

analysis in the following sections. 

1. Application of the Two-Pronged Test 

The two-pronged test for determining 

if an alternative program achieves 

greater reasonable progress than sourcespecific BART is set out in the Regional 

Haze Rule at 40 CFR 51.308(e)(3). The 

underlying purpose of both prongs of 

the test is to assess whether visibility at 

Class I areas would be better with the 

alternative program in place than 

without it. Under the first prong, 

visibility must not decline at any 

affected Class I area on either the best 

20 percent or the worst 20 percent days 

as a result of implementing the 

Transport Rule; and, under the second 

prong the 20 percent best and 20 

percent worst days should be 

considered in determining whether the 

alternative program under consideration 

(in the case of this rulemaking, the 

Transport Rule) produces greater 

average improvement than sourcespecific BART over all affected Class I 

areas. Together, these tests ensure that 

the alternative program provides for 

greater reasonable progress than would 

source-specific BART. 

In applying the two-pronged test to 

the Transport Rule control scenario and 

the source-specific BART control 

scenario, we used a future (2014) 

projected baseline. The 2014 baseline 

does not include the Transport Rule, 

BART, or CAIR control programs. As 

described in the preamble to the 

proposed rule, the 2014 baseline allows 

a comparison of visibility conditions as 

they are expected to be at the time of the 

program implementation, but in the 

absence of the program. This ensures 

that the visibility improvement or 

possible degradation is due to the 

programs being compared—sourcespecific BART and the Transport Rule 

alternative—and not to other extrinsic 

factors. Also, under the Regional Haze 

Rule any program adopted after 2002 is 

considered ‘‘surplus’’ and eligible to be 

counted as all or part of an alternative 

program in place of BART. 

2. Identification of Affected Class I 

Areas 

As described above, under the second 

prong of the test, the visibility 

comparison is over all ‘‘affected’’ Class 

I areas. The EPA added the term 

‘‘affected’’ to clarify that visibility need 

not be evaluated nationwide. 71 FR 

60620. We considered two approaches 

to identify the Class I areas ‘‘affected’’ 

by the Transport Rule as an alternative 

control program to source-specific 

BART. First, we identified 140 Class I 

areas represented by 96 Interagency 

Monitoring of Protected Visual 

Environments (IMPROVE) monitors in 

the 48 contiguous states with 

sufficiently complete monitoring data 

available to support the analysis. In the 

first ‘‘eastern’’ approach, we identified 

as affected Class I areas the 60 Class I 

areas contained in the eastern portion of 

the Transport Rule modeling domain. 

The second approach we considered 

was a ‘‘national’’ approach in which 

visibility impacts on 140 Class I areas 

across the 48 contiguous states were 

evaluated (including the 60 contained 

within the Transport Rule region). 

Consideration of this national region 

accounted for the possibility that the 

Transport Rule might have the effect of 

increasing EGU emissions in the most 

western portion of the United States due 

to shifts in electricity generation or 

other market effects. We noted that the 

‘‘eastern’’ Transport Rule modeling grid 

used a horizontal resolution of 12 km 

(all 60 ‘‘eastern’’ Class I areas were 

contained within the 12 km grid). The 

modeling grid for areas outside of the 

eastern Transport Rule region used a 

more coarse horizontal resolution of 36 

km. 

We requested comment on whether 

the ‘‘affected Class I areas’’ should be 

considered to be the 60 Class I areas 

located in the Transport Rule eastern 

modeling domain, the larger set of 140 

Class I areas in the larger national 

domain, or some other set. We noted 

that given the modeling results, the 

choice between the 60 Class I areas or 

the 140 Class I areas did not affect our 

proposed conclusion that both prongs of 

the two-pronged test are met. 

3. Control Scenarios Examined 

The Transport Rule requires 28 states 

in the eastern half of the United States 

to reduce EGU SO2 and NOX emissions 

that cross state lines and contribute to 

ground-level ozone and fine particle 

pollution in other states. BART, on the 

other hand, is applicable nationwide 

and covers 26 industrial categories, 

including EGUs, of a certain vintage. In 

our comparison, we sought to determine 

whether the Transport Rule cap-andtrade program for EGUs will achieve 

greater reasonable progress than would 

BART for EGUs only. Therefore, we 

examined two relevant control 

scenarios. The first control scenario 

examined SO2 and NOX emissions from 

all EGUs nationwide after the 

application of BART controls to all 

BART-eligible EGUs (‘‘Nationwide 

BART’’). In the second scenario, EGU 

SO2 and NOX emissions reductions 

attributable to the Transport Rule were 

applied in the Transport Rule region 

and BART controls were applied to all 

BART-eligible EGUS outside the 

Transport Rule region (‘‘Transport Rule 

+ BART elsewhere’’). For the first prong 

of the test, the ‘‘Transport Rule + BART 

elsewhere’’ scenario was compared to 

the 2014 future year base case. The 

comparison to the 2014 future year 

‘‘Base Case’’ allows the EPA to ensure 

that the Transport Rule would not cause 

degradation in visibility from conditions 

predicted for the year 2014 in the 


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Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Rules and Regulations 33649 

11Extensive documentation of the IPM platform 

may be found at http://www.epa.gov/airmarkets/ 

progsregs/epa-ipm/transport.html. 

12See Federal Implementation Plans To Reduce 

Interstate Transport of Fine Particulate Matter and 

Ozone 76 FR 48208 (August 8, 2011). The ozone 

season state budgets for the states affected by the 

supplemental proposal published on July 11, 2001 

(76 FR 40662) are included in the ‘‘Transport Rule 

+ BART elsewhere’’ control scenario. 

13See Air Quality Modeling Final Rule Technical 

Support Document, U.S. EPA, June 2011, which is 

found at: http://www.epa.gov/airtransport/pdfs/ 

AQModeling.pdf. 

absence of the Transport Rule, BART 

and CAIR. 

For both the ‘‘Nationwide BART’’ 

scenario and the ‘‘Transport Rule + 

BART elsewhere’’ scenario, we modeled 

the presumptive EGU BART limits for 

SO2 and NOX emission rates as specified 

in the BART Guidelines (Guidelines for 

BART Determinations Under the 

Regional Haze Rule, 70 FR 39104, July 

6, 2005), unless an actual emission rate 

at a given unit with existing controls is 

lower. In the latter case, we modeled the 

lower emission rates. Our analysis 

assumed that all BART-eligible EGUs 

were actually subject to BART 

requirements and that presumptive 

BART limits would be applied to 100 

megawatt (MW) EGUs for SO2 and 25 

MW EGUs for NOX, regardless of the 

magnitude of their annual total 

emissions. In our analysis, in both 

scenarios we constrained certain EGUs 

by emission limits other than 

presumptive limits due to a proposed or 

final regional haze SIP, a proposed or 

final regional haze FIP, a final consent 

decree, or state rules. Where we had 

evidence of more stringent emission 

limits than the presumptive BART 

limits, we used them. These units and 

their emission limits are detailed in the 

TSD. 

There are five states that are subject 

to the Transport Rule requirements 

during the ozone season only 

(Oklahoma, Arkansas, Louisiana, 

Mississippi and Florida). For these 

states, in the ‘‘Transport Rule + BART 

elsewhere’’ scenario post-combustion 

NOX controls were assumed to operate 

outside of the ozone season only when 

required to do so for a reason other than 

Transport Rule requirements, e.g., a 

permit condition or a provision of a 

consent decree. In the ‘‘National BART’’ 

scenario, BART NOX controls were 

assumed to operate year-round. 

4. Emission Projections 

To estimate emissions expected from 

the scenarios described in section IV, 

we used the Integrated Planning Model 

(IPM).11 The IPM was used in this case 

to evaluate the emissions impacts of the 

described scenarios limiting the 

emissions of SO2 and NOX from EGUs. 

The IPM projections of annual NOX and 

SO2 emissions from EGUs for the 

‘‘Transport Rule + BART elsewhere’’ 

control scenario were used as inputs to 

the air quality model to assess the 

visibility impacts of the emission 

changes. The IPM projections were 

based on the state budgets prescribed in 

the final Transport Rule published on 

August 8, 2011, and the supplemental 

proposal published on July 11, 2011.12

We noted that on October 14, 2011, the 

EPA issued a proposed notice that 

would increase NOX and SO2 budgets 

for certain states in accordance with 

revisions to certain unit-level input 

data. 76 FR 63860. We requested 

comment on the potential effect of the 

proposed increases to state budgets. We 

noted that even with the proposed 

increases to certain state budgets, we 

believed that the two-pronged test is 

satisfied given the still-substantial 

reductions in emissions under the 

Transport Rule. 

5. Air Quality Modeling Results 

To assess the air quality metrics that 

are part of the two-pronged test, we 

used the IPM emission projections as 

inputs, to an air quality model to 

determine the impact of ‘‘Transport 

Rule + BART elsewhere’’ and 

‘‘Nationwide BART’’ controls on 

visibility in the affected Class I areas. To 

project air quality impacts we used the 

Comprehensive Air Quality Model with 

Extension (CAMx) version 5.3. The air 

quality modeling analysis and related 

analyses to project visibility 

improvement are described in more 

detail in the TSD for the Transport 

Rule.13 The visibility projections for 

each Class I area are presented in the 

TSD for our proposed action. 

We proposed that the ‘‘Transport Rule 

+ BART elsewhere’’ control scenario 

passed the first prong of the visibility 

test considering affected Class I areas 

located in both the ‘‘eastern’’ region of 

60 Class I areas and the ‘‘national’’ 

region of 140 Class I areas We also 

proposed our determination that the 

‘‘Transport Rule + BART elsewhere’’ 

alternative measure passed the second 

prong of the test that assesses whether 

the alternative results in greater average 

visibility improvement at affected Class 

I areas compared to the ‘‘Nationwide 

BART’’ scenario. The ‘‘Transport Rule + 

BART elsewhere’’ alternative passed the 

second prong of the test, regardless of 

which way affected Class I areas are 

identified. 

B. Summary of the EPA Responses to 

Comments on the Technical Analysis 

Many comments supported the EPA’s 

technical analysis and our 

determination that the Transport Rule 

satisfies the requirements for an 

alternative to source-specific BART. 

Other commenters raised objections to 

the EPA’s determination. Some of these 

were general legal objections related to 

the EPA’s legal authority for its action 

and its interpretation of authorizing 

regulations and statutes. The EPA’s 

response to those general legal 

objections is discussed above in section 

III.A. Other objections raised technical 

issues related to the EPA’s emissions 

and air quality modeling scenarios that 

were used to compare the results of the 

Transport Rule control scenario with the 

source-specific BART control scenario. 

In this section of the preamble we 

provide an overview of the EPA’s 

review of these technical comments. 

Our responses are discussed in detail in 

the Response to Comments document, 

which is included in the docket for this 

rulemaking. 

1. Comments Related to the Emissions 

Scenarios Used in the EPA’s Analysis 

As noted above, the EPA developed 

two emissions scenarios: A 2014 

‘‘Nationwide BART’’ scenario and a 

2014 ‘‘Transport Rule + BART 

elsewhere’’ scenario. Nationwide 

emissions were substantially lower 

under the ‘‘Transport Rule + BART 

elsewhere’’ scenario. Some commenters 

asserted that the emissions results for 

these two scenarios were skewed in 

favor of the Transport Rule. These 

commenters asserted that the EPA 

underestimated the emissions 

reductions from BART, and 

overestimated the emission reductions 

from the Transport Rule. These 

commenters raise issues generally with 

the use of presumptive BART limits in 

the ‘‘Nationwide BART’’ scenario and 

questioned whether the EPA correctly 

applied the presumptive BART limits. 

The EPA disagrees with commenters 

asserting that the presumptive BART 

limits were inappropriate for use in this 

analysis. While the EPA recognizes that 

a case-by-case BART analysis may, in 

some source-specific assessments, result 

in emission limits more stringent than 

the presumptive limits, these limits are 

reasonable and appropriate for use in 

assessing regional emissions reductions 

from the BART scenario. This has been 

the EPA position since 2005. 71 FR 

60619 (‘‘the presumptions represent a 

reasonable estimate of a stringent case 

BART * * * because * * * they would 

be applied across the board to a wide 


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14The EPA notes that a BART determination 

made under the regional haze program is distinct 

from a best available control technology (BACT) 

determination made under the prevention of 

significant deterioration (PSD) program. 42 U.S.C. 

7475. The fact that a control technology has been 

determined to be BART does not mean that the 

same controls would be found to meet the 

requirements for BACT. 

variety of units with varying impacts on 

visibility, at power plants of varying 

size and distance from Class I areas’’). 

Moreover, as discussed in detail in the 

Response to Comment document, the 

EPA believes that these comments 

overestimate the emissions reductions 

that would be associated with case-bycase BART because the commenters’ 

assertions of ‘‘best’’ technology for 

BART ignore other factors, including 

cost of control and resulting visibility 

improvement, that are critical 

components of a source-specific BART 

analysis. 

The EPA also received numerous 

comments concerning specific units for 

which the commenters believed the 

BART limits for SO2 had been 

incorrectly applied in IPM. Our review 

of these comments, which is presented 

in detail in the Response to Comments 

document, shows that (with minor 

exceptions) the EPA correctly applied 

these presumptive limits. After 

reviewing these comments and the IPM 

outputs, we conclude that many of these 

comments stemmed from an apparent 

misunderstanding of the EPA’s 

application of the presumptive limits in 

IPM. Some of the unit-level comments 

pertained to units less than 100 MW for 

which the presumptive limits did not 

apply. Other comments pertained to 

units that did not meet both the 95 

percent removal efficiency and the 0.15 

lb/MMBtu rate. For BART-affected units 

greater than or equal to 100 MW, the 

EPA’s IPM modeling required that they 

meet a SO2 emission rate limit of 0.15 

lbs/MMBtu or a removal efficiency of 95 

percent. As sources are only required to 

comply with one of these metrics 

(emission rate or percent removal), the 

IPM correctly determined that some 

BART sources could comply with an 

emission rate higher than 0.15 lb/ 

MMBtu (while meeting the 95 percent 

FGD removal efficiency requirement) 

and some could comply with a removal 

efficiency less than 95 percent (while 

meeting the emission rate requirement). 

The EPA also disagrees with the 

commenters’ assertion that our 

application of presumptive limits for 

NOX should have provided for the 

installation of add-on equipment such 

as selective catalytic reduction (SCR). 

For all types of boilers other than 

cyclone units, the presumptive NOX

limits in the EPA’s BART guidelines are 

based only on the use of current 

combustion control technology 

including low NOX burners, over-fire 

air, and coal reburning.14 70 FR 39134. 

Finally, the EPA disagrees with 

commenters who expressed concerns 

that the ‘‘no-CAIR’’ base case was 

inappropriate for use in this analysis. 

The EPA agrees with commenters’ 

observation that the 2014 base case 

leads to emission increases relative to 

current emissions. However, as 

explained in detail in the preamble to 

the final Transport Rule, the EPA 

believes this is a reasonable and 

appropriate case to use for estimating 

emissions reductions that are 

attributable to the Transport Rule, and 

for estimating air quality concentrations 

in absence of the Transport Rule. 76 FR 

48223. 

2. Identification of Affected Class I 

Areas 

Under the Regional Haze Rule, the 

reasonable progress achieved by an 

alternative program in ‘‘affected Class I 

areas’’ is compared to the reasonable 

progress achieved by source-specific 

BART. In our proposal, the EPA 

requested comment on whether the 

‘‘affected Class I areas’’ should be 

considered to be (1) The 60 Class I areas 

located in the Transport Rule eastern 

modeling domain, (2) the larger set of 

140 Class I areas, or (3) some other set. 

We noted that our air quality modeling 

results showed that the choice between 

the 60 Class I areas or the 140 Class I 

areas did not affect our proposed 

conclusion that both prongs of the twopronged test are met. 

Some commenters agreed that the 

EPA can properly rely on an assessment 

of the 60 Class I areas without referring 

to the results of the additional 80 Class 

I areas. These commenters noted, as did 

the EPA, that because both assessment 

approaches support the Transport Rule 

as a lawful and reasonable BART 

alternative, the EPA may appropriately 

confirm its determination based on 

either approach. Other commenters 

argued that the EPA improperly 

averaged across all Class I areas. These 

commenters argued that both the 60 

Class I area region and the 140 Class I 

area region are too broad. These 

commenters presented information 

illustrating the ‘‘Nationwide BART’’ 

scenario to be superior to the Transport 

Rule alternative if the EPA averaged 

visibility improvement at the 27 Class I 

areas west of the Mississippi River but 

east of the Rocky Mountains. These 

commenters asserted that the EPA 

should not average across states, but 

rather should assume Transport Rule 

changes in one state at a time, and 

average the results for areas in (and 

nearby) that state. 

The EPA agrees with comments 

supporting our approach to identifying 

the ‘‘affected’’ Class I areas. The EPA 

agrees that in either case, the analysis 

shows that the two-pronged test for 

determining a BART alternative is 

satisfied. The EPA does not agree that it 

is necessary to evaluate results for a subregion such as the 27 Class I areas 

suggested by some commenters. Given 

that the Transport Rule affects 

emissions and air quality over a large 

region, the EPA believes it is reasonable 

to consider that entire region in 

evaluating the Class I areas that are also 

‘‘affected’’ by this rule. The possibility 

of greater visibility improvement due to 

source-specific BART in specific Class I 

areas within the region of ‘‘affected 

Class I areas’’ is inherent to the twopronged test that has been upheld by the 

D.C. Circuit Court. As long as the 

average visibility improves over the 

entire region and no Class I area 

experiences degradation, the alternative 

is an appropriate and approvable 

alternative to source-specific BART. See 

471 F.3d 1333 (D.C. Cir. 2006) 

(‘‘UARG’’) (‘‘nothing in § 169A(b)’s 

‘reasonable progress’ language requires 

as least as much improvement in each 

and every individual area as BART itself 

would achieve’’). 

3. Ozone Season-Only Transport Rule 

States 

Some commenters noted that five 

states—Arkansas, Florida, Louisiana, 

Mississippi and Oklahoma—are covered 

by the Transport Rule ozone season 

only, and thus these states are only 

required to hold allowances and limit 

statewide NOX emissions during May 

through September. Commenters 

expressed concerns that while 

imposition of BART would require yearround operation of NOX controls, under 

the Transport Rule there would be no 

assurance that NOX emission controls 

would operate during the remaining 7 

months of the year. Accordingly, the 

commenters asserted that for these 

states the Transport Rule is not ‘‘better 

than BART’’ because it would allow for 

a potential degradation during these 

months, and thus the EPA should 

consider the Transport Rule to fail the 

first prong of the two-pronged test. 

The EPA carefully considered this 

comment, and we reviewed the results 

of our technical analysis to evaluate 

whether such seasonal differences could 

occur. For programs which regulate 

ozone season NOX only, seasonal 

differences in the emissions rate (lb/ 


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15There are no coal-fired cyclone units located in 

any of the five ozone season-only states so the 

presumptive limits for cyclone units do not apply. 

16Technical Support Document for 

Demonstration of the Transport Rule as a BART 

Alternative, Docket EPA–HQ–OAR–2011–0729. 

p. 10. 

17These revisions were originally published in a 

direct final rule on February 21, 2012. 77 FR 10342. 

The EPA published a parallel proposal 

simultaneously with the direct final rule and 

Continued 

MMBtu) can be seen where a source 

installs post-combustion controls such 

as selective catalytic reduction (SCR) or 

selective non-catalytic reduction 

(SNCR). It is probable that source 

owners would not operate the controls 

in non-ozone season months to avoid 

the extra cost of control. These effects 

are indeed seen in the data reported to 

the EPA. However, where a program 

results in the imposition of combustion 

controls such as low-NOX burners and 

overfire air, the controls are an integral 

part of the operational design of the 

EGU. Accordingly, where combustion 

controls are installed in response to an 

ozone season-only requirement, the EPA 

does not expect to see seasonal 

differences in the lb/MMBtu NOX

emission rate. 

Our review of the IPM predictions of 

how EGUs are likely to comply with the 

Transport Rule indicated that in the 

‘‘Transport Rule + BART elsewhere’’ 

scenario, NOX control in the five ozone 

season-only states is achieved 

predominantly by combustion controls 

rather than post-combustion controls. In 

the Transport Rule scenario, for four of 

the five states (Arkansas, Louisiana, 

Mississippi and Oklahoma), the EPA 

projects that any additional NOX

controls resulting from the Transport 

Rule would be combustion controls 

only. Furthermore, as explained above, 

for the ‘‘Nationwide BART’’ control 

scenario we applied the presumptive 

NOX limits to all BART-eligible sources 

nationwide that were not already 

equipped with post-combustion 

controls. According to the EPA’s BART 

guidelines, for all types of boilers other 

than cyclone units the presumptive 

BART limits for NOX are based on the 

use of current combustion control 

technology.15 70 FR 39134. For BART 

sources already equipped with postcombustion controls, we assumed under 

BART those controls would operate 

year-round. Therefore, the ‘‘Nationwide 

BART’’ scenario would result in 

generally uniform emission rates 

throughout the year in the five ozone 

season-only states. As a result, with the 

exception of Florida, there is no 

seasonal difference in NOX emission 

rates between the ‘‘Transport Rule + 

BART-elsewhere’’ scenario and the 

‘‘Nationwide BART’’ scenario. In 

Florida, the one instance where IPM 

indicates a season-dependent difference 

between the two control scenarios, there 

are some EGUs with existing postcombustion controls (SCR) that the EPA 

projects would not operate at all unless 

incentivized to do so by either a sourcespecific BART requirement or by the 

Transport Rule, and under the Transport 

Rule would operate only during the 

ozone season. Our analysis of the two 

scenarios appropriately considered this 

seasonal difference by accounting for 

higher NOX emissions from those 

Florida units outside of the ozone 

season when these controls are 

projected not to operate in the 

‘‘Transport Rule + BART elsewhere’’ 

scenario. That is, our analysis assumed 

that post-combustion NOX controls 

would operate year-round under the 

‘‘Nationwide BART’’ scenario and only 

during May through September in the 

‘‘Transport Rule + BART elsewhere’’ 

scenario. When we analyzed the overall 

regional emissions reductions under the 

two scenarios, this did not affect our 

conclusion that the two-pronged test 

was satisfied. This outcome is very 

understandable because over a 

geographic region this small relative 

decrease during part of the year in 

emissions of NOX in the ‘‘Transport 

Rule + BART elsewhere’’ scenario 

compared to the ‘‘Nationwide BART’’ 

scenario has much less effect than the 

visibility improvement attributable to 

the very large relative decrease in SO2

emissions between the two scenarios. 

Finally, the EPA notes that in a 

previous rulemaking that established 

that CAIR was ‘‘better-than-BART’’ it 

was also the case that some states 

subject to CAIR were subject only to 

ozone-season NOX budgets. In that 

rulemaking, our air quality analysis had 

similar results and our final rule 

established that the CAIR could be 

relied upon as an alternative to sourcespecific BART for those states. 

4. Comments Asserting That the EPA 

Needs To Re-Do the Analysis 

Some commenters asserted that the 

EPA could not issue a final 

determination that the Transport Rule 

achieves greater reasonable progress 

than BART without conducting a new 

modeling analysis that would correct an 

error in the emissions for the 

‘‘Nationwide BART’’ scenario and that 

would take into account certain 

adjustments that the EPA made to some 

state budgets under the Transport Rule 

after the air quality modeling runs were 

completed. Specifically, the 

commenters noted that the EPA 

acknowledged in the TSD for the 

proposal that the emissions analysis for 

the ‘‘Nationwide BART’’ scenario 

should have, but did not, apply 

presumptive BART controls on BARTeligible Gerald Gentleman Unit 2 and 

that the EPA acknowledged that the 

Transport Rule scenario in the analysis 

did not take into account budget 

revisions for a number of states that 

were published or proposed subsequent 

to the promulgation of the Transport 

Rule in August 2011. The commenters 

believe that because of these two 

acknowledged discrepancies in the 

emissions values used in the air quality 

modeling for the two scenarios, in 

combination with additional alleged 

errors, the EPA cannot issue a final 

determination unless and until a new 

analysis is conducted that takes these 

discrepancies into account. 

The EPA disagrees that a re-analysis 

of the two-pronged test using new air 

quality modeling is necessary. As noted 

in the TSD, the EPA does not believe 

that the omission of Gerald Gentleman 

Unit 2 from the BART-eligible inventory 

of 489 units would affect the outcome 

of our national analysis.16 This is 

because the emission reductions from a 

single EGU in the BART control 

scenario would not change the average 

visibility improvement across all 

affected Class I areas, which is the basis 

for our determination. The SO2 emission 

reduction in question (roughly 12,000 

tons of SO2 per year) represents a 

relatively small emission change 

compared to the emissions from the area 

encompassed by Nebraska and the 

surrounding six states. Our response to 

other alleged errors in the BART 

inventory is presented in the Response 

to Comment document. 

With respect to revisions in state 

budgets, as we discussed in the TSD 

accompanying the December 30, 2011 

proposal, the post-analysis increases in 

the state budgets under the Transport 

Rule had a relatively small impact on 

the emissions comparison between the 

two scenarios. 76 FR 8227. We note that 

in addition to the Transport Rule 

revisions we discussed in the proposed 

rule, there have been proposed 

subsequent adjustments to state budgets. 

On February 21, 2012, based on 

comments received on its previous 

rulemaking proposal, the EPA published 

revisions to 2012 and 2014 state budgets 

in Arkansas, Georgia, Indiana, Kansas, 

Louisiana, Mississippi, Missouri, New 

York, Nebraska, Ohio, Oklahoma, South 

Carolina and Texas, along with 

revisions to new unit set-asides in 

Arkansas, Louisiana and Missouri. 77 

FR 10342 and 77 FR 10350.17 While 


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indicated it would withdraw the direct final rule if 

it received adverse comment. The EPA received 

adverse comments and on May 16, 2012 published 

a notice withdrawing the direct final rule before it 

went into effect. 77 FR 28785. As indicated in the 

parallel proposal, the EPA intends to take final 

action on the parallel proposal without providing 

an additional opportunity for public comment. 77 

FR 10350. 

18A geographic enhancement is a method, 

procedure, or process to allow a broad regional 

strategy, such as the Transport Rule cap-and-trade 

program, to satisfy BART for reasonable attributable 

impairment. For example, it could consist of a 

methodology for adjusting allowance allocations at 

a source which is required to install BART controls. 

19A RAVI certification has been made for the 

Sherbourne County Generating Station (Sherco) in 

Minnesota, by the Department of the Interior on 

October 21, 2009. 

individual state adjustments vary, 

overall, the total budget increase over 

the entire Transport Rule region is very 

small. The EPA believes it is a 

reasonable expectation that these 

adjustments would lead to very small 

impacts on annual and 24-hour PM2.5

concentrations and, as a consequence, 

would not have a meaningful impact on 

the two-pronged test satisfied by the 

analysis conducted for this rule. A 

technical analysis of these adjustments 

may be found in the docket (Docket ID 

No. EPA–HQ–OAR–2011–0729: 

Sensitivity Analysis Accounting for 

Increases in Texas and Georgia 

Transport Rule State Budgets). 

After reviewing the public comments 

on the proposed rule, the EPA is 

finalizing its finding that the Transport 

Rule trading programs will provide 

greater progress towards regional haze 

goals than source-specific BART. This 

finding is based on the results of the 

two-pronged test for an alternative 

program. In this case, our analysis 

demonstrated that the trading programs 

of the Transport Rule do not cause 

degradation in any affected Class I area, 

thus passing the first prong of the test. 

The second prong of the test assesses 

whether the ‘‘Transport Rule + BART 

elsewhere’’ scenario results in greater 

average visibility improvement at 

affected Class I areas compared to the 

‘‘Nationwide BART’’ scenario. The 

average visibility improvement of the 

‘‘Transport Rule + BART elsewhere’’ 

alternative was greater than 

‘‘Nationwide BART’’ on both the 20 

percent best and 20 percent worst days, 

thus passing the second prong of the 

test. The determination that the 

Transport Rule trading programs will 

provide greater progress towards 

regional haze goals than source-specific 

BART applies only to EGUs in the 

Transport Rule trading programs and 

only for pollutants covered by the 

programs in each state. Accordingly, we 

are revising 40 CFR 51.308(e)(4) by 

essentially replacing the name of the 

CAIR with the name of the Transport 

Rule. 

We are also finalizing our proposal 

that a state that chooses to meet the 

emissions reduction requirements of the 

Transport Rule by submitting a 

complete SIP revision that is approved 

as meeting the requirements of 40 CFR 

52.38 and/or 52.39 also need not require 

BART-eligible EGUs in the state to 

install, operate and maintain BART for 

the pollutants covered by such a trading 

program in the state. 

The results of the ‘‘Transport Rule + 

BART elsewhere’’ control scenario 

analysis demonstrate that the use of 

NOX controls during ozone season only, 

in the states for which this Transport 

Rule requirement applies, results in 

greater visibility improvement than 

source-specific BART for NOX. Thus, we 

are finalizing our proposal that a state 

in the Transport Rule region whose 

EGUs are subject to the requirements of 

the Transport Rule trading program only 

for ozone season NOX is allowed to rely 

on our determination that the Transport 

Rule makes greater reasonable progress 

than source-specific BART for NOX. The 

states to which this aspect of our final 

rule applies are Arkansas, Florida, 

Louisiana, Mississippi and Oklahoma. 

IV. Reasonably Attributable Visibility 

Impairment (RAVI) 

A. What did the EPA propose? 

We proposed to preserve the language 

in the regional haze regulations at 

40 CFR 51.308(e)(4) that allows states to 

include in their SIPs geographic 

enhancements to the trading program to 

address a situation where BART is 

required based on RAVI at a Class I 

area.18

B. Public Comments Related to RAVI 

We received comments 

recommending that we explicitly state 

that the Transport Rule as an alternative 

to BART does not replace the BART 

analysis that is required to address 

RAVI certification. The commenter 

contends that the BART determination 

for RAVI needs to address the 

impairment at the specific Class I area 

or areas, a requirement that is not 

addressed by the demonstration of 

regionally-averaged visibility 

improvement. Other commenters agreed 

that RAVI BART is critical to remedying 

existing impairment and must be 

implemented. This commenter also 

pointed out that RAVI BART is reactive 

as it requires FLM to voluntarily take 

action to address an existing problem. 

As such, RAVI BART will not result in 

proactive permitting to avoid 

degradation and it cannot be relied on 

to prevent hot spots. Furthermore, 

according to this commenter, the EPA in 

its finding that CAIR was better-thanBART explained that even under a 

BART alternative ‘‘* * * CAA section 

169A(b)(2)’s trigger for BART based on 

impairment at any Class I area remains 

in effect, because a source may become 

subject to BART based on ‘reasonably 

attributable visibility impairment’ at any 

area’’ (citing 40 CFR 51.302). 

The EPA proposed to leave 

unchanged the existing regulatory 

language regarding geographic 

enhancements. The purpose of this 

language is to allow a market-based 

system to accommodate actions taken 

under the RAVI provisions. The EPA 

first adopted such language in the 1999 

Regional Haze Rule, 64 FR 35757, and 

used it again in issuing regulations 

addressing our determination that CAIR 

provides for greater reasonable progress 

than BART, 70 FR 39156, and again in 

issuing regulations addressing trading 

program alternatives to BART in 

general, 71 FR 60612, 60627. In light of 

the fact that our proposal did not 

request comment on the interplay of the 

RAVI requirements in 40 CFR 51.302– 

306 with the requirements of the 

Regional Haze Rule, we are not adopting 

any clarifying interpretation at this time. 

As a result, this rulemaking alters 

neither the authority of a federal land 

manager to certify reasonably 

attributable visibility impairment nor 

the obligation of states (or EPA) to 

respond to a RAVI certification under 

40 CFR Part 51 Subpart P (Protection of 

Visibility). We expect at a later date to 

clarify the scope of the RAVI 

requirements through a rule 

amendment, general guidance, or action 

on a SIP or FIP in the context of a 

specific RAVI case.19 Whatever the 

form, we intend to provide an 

opportunity for public comment before 

applying a new interpretation. 

C. Final Action on RAVI 

In this final action we are preserving 

the language in the regional haze 

regulations at 40 CFR 51.308(e)(4) that 

allows states to include in their SIPs 

geographic enhancements to the trading 

program to accommodate a situation 

where BART is required based on RAVI 

at a Class I area. We are not adopting 

any clarifying interpretation of this 

language at this time, but we expect at 

a later date to clarify the scope of the 

RAVI requirements through a rule 

amendment, general guidance, or action 

on a SIP or FIP in the context of a 

specific RAVI case. 


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20On May 15, 2012, the EPA proposed limited 

approval of three revisions to the Florida SIP, 

including BART determinations for five facilities. 

V. Limited Disapproval of Certain 

States’ Regional Haze SIPs 

A. What did the EPA propose? 

We proposed a limited disapproval of 

the regional haze SIPs that have been 

submitted by Alabama, Florida, Georgia, 

Indiana, Iowa, Louisiana, Michigan, 

Mississippi, Missouri, North Carolina, 

Ohio, Pennsylvania, South Carolina, 

and Texas. In separate notices, the EPA 

also has proposed a limited disapproval 

of the regional haze SIP submitted by 

Virginia that relied on CAIR (77 FR 

3691), and has finalized a limited 

disapproval of the regional haze SIPs 

submitted by Kentucky (77 FR 19098), 

Tennessee (77 FR 24392), and West 

Virginia (77 FR 16937). These states, 

fully consistent with the EPA’s 

regulations at the time, relied on CAIR 

requirements to satisfy the BART 

requirement and the requirement for a 

long-term strategy sufficient to achieve 

the state-adopted reasonable progress 

goals. 

We did not propose to disapprove the 

reasonable progress targets for 2018 that 

have been set by the states in their SIPs. 

The reasonable progress goals in the 

SIPs were set based on modeled 

projections of future conditions that 

were developed using the best available 

information at the time the analysis was 

done. Given the requirement in 40 CFR 

51.308(d)(1)(vi) that states must take 

into account the visibility improvement 

that is expected to result from the 

implementation of other Clean Air Act 

requirements, states set their reasonable 

progress goals based, in part, on the 

emission reductions expected to be 

achieved by CAIR. As CAIR has now 

been remanded by the D.C. Circuit, the 

assumptions underlying the 

development of the reasonable progress 

targets have changed; however, because 

the overall EGU emission reductions 

from the Transport Rule are larger than 

the EGU emission reductions that would 

have been achieved by CAIR, we expect 

the Transport Rule to provide similar or 

greater benefits than CAIR. In addition, 

unlike the enforceable emissions 

limitations and other enforceable 

measures in the long-term strategy, see 

64 FR 35733, reasonable progress goals 

are not enforceable measures. Given 

these considerations, we concluded not 

to propose disapproval of the reasonable 

progress goals in any of the regional 

haze SIPs that relied on CAIR. We noted 

our intent to act on the remaining 

elements of the SIP for each state in a 

separate notice. 

B. Public Comments Related to Limited 

Disapprovals 

Several commenters seem to have 

interpreted our statement that the EPA 

was not proposing to disapprove the 

reasonable progress goals set by affected 

states to mean that the EPA had 

proposed to determine that these 

reasonable progress goals meet the 

requirements of the Regional Haze Rule. 

The commenters stated that the EPA 

cannot reasonably conclude that the 

Transport Rule achieves reasonable 

progress. As noted in the proposal, we 

intend to evaluate the reasonable 

progress goals for each state when 

taking action on the remaining elements 

of their regional haze SIPs. As explained 

above, we do not consider the remand 

of CAIR to provide a basis for 

disapproving the reasonable progress 

goals set by the states. That 

determination, however, does not 

indicate that we intend to approve the 

targets set by the states without any 

further consideration. In addition, while 

we have concluded that the Transport 

Rule achieves greater reasonable 

progress than BART, we have not 

determined, as the commenters suggest, 

that the Transport Rule alone achieves 

reasonable progress towards the natural 

visibility goal. 

C. Final Action on Limited Disapprovals 

This action includes a final limited 

disapproval of the regional haze SIPs 

submitted by Alabama, Georgia, 

Indiana, Iowa, Louisiana, Michigan, 

Mississippi, Missouri, North Carolina, 

Ohio, Pennsylvania, South Carolina, 

Virginia, and Texas. We are not 

finalizing the limited disapproval for 

Florida at this time because the state has 

requested additional time to modify its 

SIP to address the change in 

applicability of the Transport Rule to 

Florida in the final rule published on 

August 8, 2011, (76 FR 48208) and is 

actively preparing SIP revisions.20 The 

EPA included Florida in the proposed 

Transport Rule for coverage under both 

the SO2 and NOX trading programs, but 

removed Florida from the SO2 trading 

program in the final Transport Rule. 

Florida was unaware of this 

modification until publication of the 

final rule. The EPA has decided to 

postpone action on Florida’s regional 

haze SIP given this extenuating 

circumstance, Florida’s request for 

additional time to modify its SIP to 

address the change in coverage under 

the Transport Rule, and Florida’s 

continued progress toward submitting a 

SIP revision. 

VI. FIPs 

A. What did the EPA propose? 

We proposed FIPs to replace reliance 

on CAIR requirements with reliance on 

the trading programs of the Transport 

Rule as an alternative to BART for SO2

and NOX emissions from EGUs in the 

following states’ regional haze SIPs: 

Alabama, Georgia, Indiana, Iowa, 

Kentucky, Michigan, Missouri, North 

Carolina, Ohio, Pennsylvania, South 

Carolina, Tennessee, Texas, Virginia 

and West Virginia. We proposed FIPs to 

replace reliance on CAIR requirements 

with reliance on the Transport Rule as 

an alternative to BART for NOX

emissions from EGUs in the following 

states’ regional haze SIPs: Florida, 

Louisiana, and Mississippi. 

We proposed that these limited FIPs 

would satisfy the BART requirement 

and be a part of satisfying the 

requirement for a long-term strategy 

sufficient to achieve the state-adopted 

reasonable progress goals. The FIPs 

would apply only to EGUs in the 

affected states and only to pollutants 

covered by the Transport Rule program 

in those states. The proposed FIPs 

would not alter states’ reasonable 

progress goals or replace these goals. 

B. Public Comments on Proposed FIPs 

Similar to the comments received 

regarding our proposed limited 

disapprovals, numerous commenters 

argued that the EPA should not finalize 

FIPs because, according to the 

commenters, we cannot rely on the 

Transport Rule because of the current 

stay of that rule. Other commenters took 

the position that we should fully 

approve the regional haze SIPs that 

relied on CAIR to satisfy certain regional 

haze requirements and that our 

proposed FIPs substituting the 

Transport Rule as an alternative to 

source-specific BART in regional haze 

SIPs are unnecessary. 

As explained above in section II.B.2, 

we do not agree that the EPA cannot 

rely on the Transport Rule because of 

the temporary stay imposed by the D.C. 

Circuit. With respect to reliance on 

CAIR, as explained in section II.A.3, 

CAIR has been remanded and only 

remains in place temporarily; 

consequently, we cannot fully approve 

those regional haze SIP revisions that 

have relied on the now-temporary 

reductions from CAIR. Although CAIR 

is currently in place, as a result of the 

December 30, 2011, Order from the U.S. 

Court of Appeals for the D.C. Circuit 

staying the Transport Rule, this does not 


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21The regulatory text at issue addressing limited 

approvals and limited disapprovals can be found at 

40 CFR 52.791(a), 40 CFR 52.1886(a) and 40 CFR 

52.2452(d). 

affect the earlier court ruling remanding 

CAIR to the EPA. A number of states 

objected to the EPA’s proposed FIP as 

these states did not receive a finding of 

failure to timely submit a regional haze 

SIP. These states requested the 

allowable time to revise and resubmit 

their SIP. Other states which also did 

not receive a finding of failure to timely 

submit a regional haze SIP did not 

object to the EPA’s proposed FIP. As 

explained in section VI.C, we have 

responded to this comment by granting 

additional time to those states that 

prefer to revise and resubmit their SIP 

to the EPA for approval and did not 

receive a finding of failure to timely 

submit their regional haze SIP. 

C. Final Action on FIPs 

In this action, the EPA is finalizing 

FIPs to replace reliance on CAIR with 

reliance on the Transport Rule as an 

alternative to BART in regional haze 

SIPs of Georgia, Indiana, Iowa, 

Kentucky, Michigan, Missouri, Ohio, 

Pennsylvania, South Carolina, 

Tennessee, Virginia, and West Virginia. 

Regional haze SIPs were due in 

December 2007. Under the CAA, the 

EPA is required to promulgate a FIP 

within 2 years after finding that a state 

has failed to make a required 

submission or after disapproving a SIP 

in whole or in part, unless the state first 

adopts and we have fully approved a 

SIP. CAA section 110(c)(1). We made a 

finding on January 15, 2009, that 

Georgia, Indiana, Michigan, Ohio, 

Pennsylvania, Texas, and Virginia had 

failed to timely submit a regional haze 

SIP. We are finalizing the FIPs for Iowa, 

Missouri, South Carolina, Tennessee, 

and West Virginia, even though we are 

not required by the CAA to do so at this 

time, because of our understanding 

based on communications with state 

officials that this action on our part is 

their preference. Our adoption of these 

FIPs at this time avoids the near-term 

need for additional administrative steps 

on the part of these states. That is, these 

states do not have to take any further 

action on their regional haze SIPs until 

SIP revisions are due in 2018. However, 

at any time, states may, and are 

encouraged to submit a revision to their 

regional haze SIP incorporating the 

requirements of the Transport Rule. At 

that time, we will withdraw the FIP 

being finalized in this action. 

We are not finalizing FIPs, as 

proposed, for Alabama, Florida, 

Louisiana, Mississippi, or North 

Carolina. Rather than a FIP, Alabama, 

Louisiana, Mississippi, and North 

Carolina have requested additional time 

to correct the deficiencies in their SIPs 

and submit a SIP revision. As these 

states did not receive a finding of failure 

to submit a regional haze SIP, the EPA 

is not required to promulgate a FIP at 

this time. The EPA will be required to 

issue a FIP for each state that does not 

submit an approvable SIP revision that 

corrects the deficiencies related to 

reliance on CAIR in time for the EPA to 

review and approve it within 2 years of 

this final limited disapproval action. We 

are not finalizing a FIP, as proposed, for 

Texas in order to allow more time for 

the EPA to assess the current Texas SIP 

submittal. Additional time is required 

due to the variety and number of BARTeligible sources and the complexity of 

the SIP. The EPA is also deferring action 

on the proposed FIP for Florida for the 

reasons discussed in section V.C. 

VII. Regulatory Text 

A. What did the EPA propose? 

Based on our finding that the 

‘‘Transport Rule + BART elsewhere’’ 

control scenario passes the two-pronged 

test, we proposed to determine that the 

Transport Rule trading program will 

provide greater progress towards 

Regional Haze goals than source-specific 

BART. We noted that the proposed 

determination would apply only to 

EGUs in the Transport Rule trading 

programs and only for the pollutants 

covered by the programs in each state. 

Accordingly, we proposed to revise 

40 CFR 51.308(e)(4) by essentially 

replacing the name of CAIR with the 

name of the Transport Rule. 

We also proposed that a state that 

chooses to meet the emission reduction 

requirements of the Transport Rule by 

submitting a complete SIP revision 

substantively identical to the provisions 

of the EPA trading program that is 

approved as meeting the requirements 

of § 52.38 and/or § 52.39 also need not 

require BART-eligible EGUs in the state 

to install, operate, and maintain BART 

for the pollutants covered by such a 

trading program in the state. 

B. Clarification of Final Regulatory Text 

A number of the states for which we 

proposed a FIP had previously failed to 

either submit a visibility SIP or had 

failed to submit a SIP that could be fully 

approved under the visibility 

regulations issued in 1980. See 45 FR 

80084 (December 2, 1980). The final 

regulatory text takes account of this and 

is not intended to change the findings 

that have been made in the past with 

respect to the relevant states’ 

compliance with the requirements of 

visibility regulations found at 40 CFR 

51.302–51.307. 

The regulatory text also accounts for 

final limited approval of the regional 

haze SIPs of Indiana, Ohio and Virginia 

that the EPA is finalizing separately, on 

or about the same day as this action. 

Including regulatory text that accounts 

for the final limited approval in this 

action avoids the need for additional 

overlapping revisions to the CFR for 

these states. To ensure that the relevant 

regulatory text is appropriately revised, 

we are amending certain regulatory 

provisions for these states in this action 

only.21

We are also making conforming 

changes to the regulatory text for the 

regional haze SIPs of Kentucky, 

Tennessee and West Virginia as the EPA 

has previously promulgated a final 

limited approval and final limited 

disapproval of these SIPs. For Kentucky, 

in this action we are making conforming 

changes to the regulatory text in 40 CFR 

52.936(a) regarding the limited approval 

and limited disapproval of Kentucky’s 

SIP. These conforming changes do not 

affect the substance of the EPA’s final 

action on Kentucky on March 30, 2012 

(77 FR 19098). For Tennessee, in this 

action we are making conforming 

changes to the regulatory text in 40 CFR 

52.2234(a) regarding the limited 

approval and limited disapproval of 

Tennessee’s SIP. These conforming 

changes do not affect the substance of 

EPA’s final action on April 24, 2012 (77 

FR 24392). For West Virginia, in this 

action we are making conforming 

changes to the regulatory text in 40 CFR 

52.2533(d) regarding the limited 

approval and limited disapproval of 

West Virginia’s SIP. These conforming 

changes do not affect the substance of 

the EPA’s final action on West Virginia 

on March 23, 2012 (77 FR 16937). 

VIII. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is a 

‘‘significant regulatory action’’ because 

some may view it as raising novel legal 

or policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the Executive 

Order. Accordingly, the EPA submitted 

this action to the Office of Management 

and Budget (OMB) for review under 

Executive Orders 12866 and 13563 (76 

FR 3821, January 21, 2011) and any 

changes made in response to OMB 

recommendations have been 


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documented in the docket for this 

action. 

B. Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. Burden is 

defined at 5 CFR 1320.3(b). This action 

does not include or require any 

information collection. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of this rule on small entities, small 

entity is defined as: (1) A small business 

that is a small industrial entity as 

defined by the U.S. Small Business 

Administration’s (SBA) regulations at 13 

CFR 121.201; (2) A governmental 

jurisdiction that is a government of a 

city, county, town, school district, or 

special district with a population of less 

than 50,000; and (3) A small 

organization that is any not-for-profit 

enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of this final rule on small 

entities, I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

This final rule will not impose any 

requirements on small entities. Rather, 

this rule would allow states to avoid 

regulating EGUs in new ways based on 

the current requirements of the 

Transport Rule and as such does not 

impose any new requirements on small 

entities. 

D. Unfunded Mandates Reform Act 

This action contains no federal 

mandates under the provisions of Title 

II of the Unfunded Mandates Reform 

Act of 1995 (UMRA, 2 U.S.C. 1531– 

1538) for state, local, or tribal 

governments or the private sector. The 

action imposes no enforceable duty on 

any state, local, or tribal governments or 

the private sector. Therefore, this action 

is not subject to the requirements of 

sections 202 or 205 of the UMRA. 

This action is also not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. This 

action merely interprets the statutory 

requirements that apply to states in 

preparing their SIPs. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. This action does 

not impose any new mandates on state 

or local governments. Thus, Executive 

Order 13132 does not apply to this rule. 

In the spirit of Executive Order 13132 

and consistent with EPA policy to 

promote communications between the 

EPA and state and local governments, 

the EPA specifically solicited comments 

on the proposed rule from state and 

local officials. We received comments 

from seven states. These comments are 

addressed in the final action and in the 

Response to Comment document. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This rule does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). The rule does not have a 

substantial direct effect on one or more 

Indian tribes, since there are no BARTeligible EGU sources on tribal lands in 

the Transport Rule region. In addition, 

the CAA does not provide for the 

inclusion of any tribal areas as 

mandatory Class I federal areas; thus, 

tribal areas are not subject to the 

requirements of the Regional Haze Rule. 

Furthermore, this rule does not affect 

the relationship or distribution of power 

and responsibilities between the federal 

government and Indian tribes. Thus, 

Executive Order 13175 does not apply 

to this action. The EPA specifically 

solicited additional comment on the 

proposed action from tribal officials and 

we received none. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

The EPA interprets Executive Order 

13045 (62 FR 19885, April 23, 1997) as 

applying to those regulatory actions that 

concern health or safety risks, such that 

the analysis required under section 

5–501 of the Order has the potential to 

influence the regulation. This action is 

not subject to Executive Order 13045 

because it does not establish an 

environmental standard intended to 

mitigate health or safety risks. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not a ‘‘significant 

energy action’’ as defined in Executive 

Order 13211 (66 FR 28355 (May 22, 

2001)), because it is not likely to have 

a significant adverse effect on the 

supply, distribution, or use of energy. 

This action does not establish 

requirements that directly affect the 

general public and private sectors. 

Rather, this rule will allow states to 

avoid regulating EGUs in new ways 

based on the current requirements of the 

Transport Rule, and thus may avoid 

adverse effects that conceivably might 

result from such additional regulation of 

EGUs by states. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, section 12(d), (15 U.S.C. 272 

note) directs the EPA to use voluntary 

consensus standards in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures, and 

business practices) that are developed or 

adopted by voluntary consensus 

standards bodies. The NTTAA directs 

the EPA to provide Congress, through 

OMB, explanations when the agency 

decides not to use available and 

applicable voluntary consensus 

standards. 

This action does not involve technical 

standards. Therefore, the EPA did not 

consider the use of any voluntary 

consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (EO) (59 FR 

7629, February 16, 1994) establishes 

federal executive policy on 

environmental justice. Its main 

provision directs federal agencies, to the 

greatest extent practicable and 

permitted by law, to make 

environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 


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populations and low-income 

populations in the United States. 

The EPA has concluded that it is not 

practicable to determine whether there 

would be disproportionately high and 

adverse human health or environmental 

effects on minority and/or low income 

populations from this final rule. The 

PM2.5 air quality improvements that 

might be expected under 

implementation of source-specific 

BART may differ from the Transport 

Rule in terms of the emission reductions 

required at any given source. However, 

our analysis of the Transport Rule 

suggests that the regional Transport 

Rule approach provides widespread 

health benefits especially among 

populations most vulnerable to PM2.5

impacts. This analysis is presented in 

detail in the Regulatory Impact Analysis 

for the Transport Rule which is 

available in the Transport Rule docket 

EPA–HQ–OAR–2009–0491 and from the 

main EPA Web page for the Transport 

Rule available at www.epa.gov/ 

airtransport. 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. The EPA will 

submit a report containing this rule and 

other required information to the U.S. 

Senate, the U.S. House of 

Representatives, and the Comptroller 

General of the United States prior to 

publication of the rule in the Federal 

Register. A Major rule cannot take effect 

until 60 days after it is published in the 

Federal Register. This action is not a 

‘‘major rule’’ as defined by 5 U.S.C. 

804(2). This rule will be effective 

August 6, 2012. 

IX. Statutory Authority 

Statutory authority for this rule comes 

from sections 169A and 169B of the 

CAA (42 U.S.C. 7491 and 7492). These 

sections require the EPA to issue 

regulations that will require states to 

revise their SIPs to ensure that 

reasonable progress is made toward the 

national visibility goals specified in 

section 169A. 

List of Subjects 

40 CFR Part 51 

Administrative practice and 

procedure, Air pollution control, 

Incorporation by reference, 

Intergovernmental relations, Nitrogen 

oxides, Ozone, Particulate matter, 

Regional haze, Reporting and 

recordkeeping requirements, Sulfur 

dioxide. 

40 CFR Part 52 

Administrative practice and 

procedure, Air pollution control, 

Incorporation by reference, 

Intergovernmental relations, Nitrogen 

oxides, Ozone, Particulate matter, 

Regional haze, Reporting and 

recordkeeping requirements, Sulfur 

dioxide. 

Dated: May 30, 2012. 

Lisa P. Jackson, 

Administrator. 

For the reasons set forth in the 

preamble, chapter I of title 40 of the 

Code of Federal Regulations is amended 

as follows: 

PART 51—[AMENDED] 

■ 1. The authority citation for part 51 

continues to read as follows: 

Authority: 23 U.S.C. 101; 42 U.S.C. 7401– 

7671q. 

■ 2. Section 51.308 is amended by 

revising paragraph (e)(4) to read as 

follows: 

§ 51.308 Regional haze program 

requirements. 

* * * * * 

(e) * * * 

(4) A State subject to a trading 

program established in accordance with 

§ 52.38 or § 52.39 under a Transport 

Rule Federal Implementation Plan need 

not require BART-eligible fossil fuelfired steam electric plants in the State 

to install, operate, and maintain BART 

for the pollutant covered by such 

trading program in the State. A State 

that chooses to meet the emission 

reduction requirements of the Transport 

Rule by submitting a SIP revision that 

establishes a trading program and is 

approved as meeting the requirements 

of § 52.38 or § 52.39 also need not 

require BART-eligible fossil fuel-fired 

steam electric plants in the State to 

install, operate, and maintain BART for 

the pollutant covered by such trading 

program in the State. A State may adopt 

provisions, consistent with the 

requirements applicable to the State for 

a trading program established in 

accordance with § 52.38 or § 52.39 

under the Transport Rule Federal 

Implementation Plan or established 

under a SIP revision that is approved as 

meeting the requirements of § 52.38 or 

§ 52.39, for a geographic enhancement 

to the program to address the 

requirement under § 51.302(c) related to 

BART for reasonably attributable 

impairment from the pollutant covered 

by such trading program in that State. 

* * * * * 

PART 52—[AMENDED] 

■ 3. The authority citation for part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7401, et seq. 

Subpart B—Alabama 

■ 4. Section 52.61 is amended by 

revising paragraph (a) and adding a new 

paragraph (c) to read as follows: 

§ 52.61 Visibility protection. 

(a) Reasonably Attributable Visibility 

Impairment. The requirements of 

section 169A of the Clean Air Act are 

not met because the plan does not 

include approvable measures for 

meeting the requirements of 40 CFR 

51.306 for protection of visibility in 

mandatory Class I Federal areas. 

* * * * * 

(c) Regional Haze. The requirements 

of section 169A of the Clean Air Act are 

not met because the regional haze plan 

submitted by Alabama on July 15, 2008, 

does not include fully approvable 

measures for meeting the requirements 

of 40 CFR 51.308(d)(3) and 51.308(e) 

with respect to emissions of NOX and 

SO2 from electric generating units. EPA 

has given limited disapproval to the 

plan provisions addressing these 

requirements. 

Subpart L—Georgia 

■ 5. Section 52.580 is added to read as 

follows: 

§ 52.580 Visibility protection. 

(a) Regional Haze. The requirements 

of section 169A of the Clean Air Act are 

not met because the regional haze plan 

submitted by Georgia on February 11, 

2010, and supplemented on November 

19, 2010, does not include fully 

approvable measures for meeting the 

requirements of 40 CFR 51.308(d)(3) and 

51.308(e) with respect to emissions of 

NOX and SO2 from electric generating 

units. EPA has given limited 

disapproval to the plan provisions 

addressing these requirements. 

(b) Measures Addressing Limited 

Disapproval Associated with NOX. The 

deficiencies associated with NOX

identified in EPA’s limited disapproval 

of the regional haze plan submitted by 

Georgia on February 11, 2010, and 

supplemented on November 19, 2010, 

are satisfied by § 52.584. 

(c) Measures Addressing Limited 

Disapproval Associated with SO2. The 

deficiencies associated with SO2


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identified in EPA’s limited disapproval 

of the regional haze plan submitted by 

Georgia on February 11, 2010, and 

supplemented on November 19, 2010, 

are satisfied by § 52.585. 

Subpart P—Indiana 

■ 6. Section 52.791 is added to read as 

follows: 

§ 52.791 Visibility protection. 

(a) Regional Haze. The requirements 

of section 169A of the Clean Air Act are 

not met because the regional haze plan 

submitted by Indiana on January 14, 

2011, and supplemented on March 10, 

2011, does not include fully approvable 

measures for meeting the requirements 

of 40 CFR 51.308(d)(3) and 51.308(e) 

with respect to emissions of NOX and 

SO2 from electric generating units. EPA 

has given limited approval and limited 

disapproval to the plan provisions 

addressing these requirements. 

(b) Measures Addressing Limited 

Disapproval Associated with NOX. The 

deficiencies associated with NOX

identified in EPA’s limited disapproval 

of the regional haze plan submitted by 

Indiana on January 14, 2011, and 

supplemented on March 10, 2011, are 

satisfied by § 52.789. 

(c) Measures Addressing Limited 

Disapproval Associated with SO2. The 

deficiencies associated with SO2

dentified in EPA’s limited disapproval 

of the regional haze plan submitted by 

Indiana on January 14, 2011 and 

supplemented on March 10, 2011 are 

satisfied by § 52.790. 

Subpart Q—Iowa 

■ 7. Section 52.842 is added to read as 

follows: 

§ 52.842 Visibility protection. 

(a) Regional Haze. The requirements 

of section 169A of the Clean Air Act are 

not met because the regional haze plan 

submitted by Iowa on March 25, 2008, 

does not include fully approvable 

measures for meeting the requirements 

of 40 CFR 51.308(d)(3) and 51.308(e) 

with respect to emissions of NOX and 

SO2 from electric generating units. EPA 

has given limited disapproval to the 

plan provisions addressing these 

requirements. 

(b) Measures Addressing Limited 

Disapproval Associated with NOX. The 

deficiencies associated with NOX

identified in EPA’s limited disapproval 

of the regional haze plan submitted by 

Iowa on March 25, 2008, are satisfied by 

§ 52.840. 

(c) Measures Addressing Limited 

Disapproval Associated with SO2. The 

deficiencies associated with SO2

identified in EPA’s limited disapproval 

of the regional haze plan submitted by 

Iowa on March 25, 2008, are satisfied by 

§ 52.841. 

Subpart S—Kentucky 

■ 8. Section 52.936 is revised to read as 

follows: 

§ 52.936 Visibility protection. 

(a) Regional Haze. The requirements 

of section 169A of the Clean Air Act are 

not met because the regional haze plan 

submitted by Kentucky on June 25, 

2008, and amended on May 28, 2010, 

does not include fully approvable 

measures for meeting the requirements 

of 40 CFR 51.308(d)(3) and 51.308(e) 

with respect to emissions of NOX and 

SO2 from electric generating units. EPA 

has given limited approval and limited 

disapproval to the plan provisions 

addressing these requirements. 

(b) Measures Addressing Limited 

Disapproval Associated with NOX. The 

deficiencies associated with NOX

identified in EPA’s limited disapproval 

of the regional haze plan submitted by 

Kentucky on June 25, 2008, and 

amended on May 28, 2010, are satisfied 

by § 52.940. 

(c) Measures Addressing Limited 

Disapproval Associated with SO2. The 

deficiencies associated with SO2

identified in EPA’s limited disapproval 

of the regional haze plan submitted by 

Kentucky on June 25, 2008, and 

amended on May 28, 2010, are satisfied 

by § 52.941. 

Subpart T—Louisiana 

■ 9. Section 52.985 is added to read as 

follows: 

§ 52.985 Visibility protection. 

(a) Regional Haze. The requirements 

of section 169A of the Clean Air Act are 

not met because the regional haze plan 

submitted by Louisiana on June 13, 

2008, does not include fully approvable 

measures for meeting the requirements 

of 40 CFR 51.308(d)(3) and 51.308(e) 

with respect to emissions of NOX and 

SO2 from electric generating units. EPA 

has given limited disapproval to the 

plan provisions addressing these 

requirements. 

(b) [Reserved] 

Subpart X—Michigan 

■ 10. Section 52.1183 is amended by 

revising paragraph (a) and adding new 

paragraphs (d), (e), and (f) to read as 

follows: 

§ 52.1183 Visibility protection. 

(a) Reasonably Attributable Visibility 

Impairment. The requirements of 

section 169A of the Clean Air Act are 

not met because the plan does not 

include approvable measures for 

meeting the requirements of 40 CFR 

51.302, 51.305, and 51.307 for 

protection of visibility in mandatory 

Class I Federal areas. 

* * * * * 

(d) Regional Haze. The requirements 

of section 169A of the Clean Air Act are 

not met because the regional haze plan 

submitted by Michigan on November 5, 

2010, does not include fully approvable 

measures for meeting the requirements 

of 40 CFR 51.308(d)(3) and 51.308(e) 

with respect to emissions of NOX and 

SO2 from electric generating units. EPA 

has given limited approval and limited 

disapproval to the plan provisions 

addressing these requirements. 

(e) Measures Addressing Limited 

Disapproval Associated With NOX. The 

deficiencies associated with NOX

identified in EPA’s limited disapproval 

of the regional haze plan submitted by 

Michigan on November 5, 2010, are 

satisfied by § 52.1186. 

(f) Measures Addressing Limited 

Disapproval Associated With SO2. The 

deficiencies associated with SO2

identified in EPA’s limited disapproval 

of the regional haze plan submitted by 

Michigan on November 5, 2010, are 

satisfied by § 52.1187. 

Subpart Z—Mississippi 

■ 11. Section 52.1279 is added to read 

as follows: 

§ 52.1279 Visibility protection. 

(a) Regional Haze. The requirements 

of section 169A of the Clean Air Act are 

not met because the regional haze plan 

submitted by Mississippi on September 

22, 2008, and supplemented on May 9, 

2011, does not include fully approvable 

measures for meeting the requirements 

of 40 CFR 51.308(d)(3) and 51.308(e) 

with respect to emissions of NOX and 

SO2 from electric generating units. EPA 

has given limited disapproval to the 

plan provisions addressing these 

requirements. 

(b) [Reserved] 

Subpart AA—Missouri 

■ 12. Section 52.1339 is amended by 

revising paragraph (a) and adding new 

paragraphs (c), (d), and (e) to read as 

follows: 

§ 52.1339 Visibility protection. 

(a) Reasonably Attributable Visibility 

Impairment. The requirements of 

section 169A of the Clean Air Act are 

not met because the plan does not 

include approvable measures for 

meeting the requirements of 40 CFR 


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51.306 for protection of visibility in 

mandatory Class I Federal areas. 

* * * * * 

(c) Regional Haze. The requirements 

of section 169A of the Clean Air Act are 

not met because the regional haze plan 

submitted by Missouri on August 5, 

2009, and supplemented on January 30, 

2012, does not include fully approvable 

measures for meeting the requirements 

of 40 CFR 51.308(d)(3) and 51.308(e) 

with respect to emissions of NOX and 

SO2 from electric generating units. EPA 

has given limited disapproval to the 

plan provisions addressing these 

requirements. 

(d) Measures Addressing Limited 

Disapproval Associated With NOX. The 

deficiencies associated with NOX

identified in EPA’s limited disapproval 

of the regional haze plan submitted by 

Missouri on August 5, 2009, and 

supplemented on January 30, 2012, are 

satisfied by § 52.1326. 

(e) Measures Addressing Limited 

Disapproval Associated With SO2. The 

deficiencies associated with SO2

identified in EPA’s limited disapproval 

of the regional haze plan submitted by 

Missouri on August 5, 2009, and 

supplemented on January 30, 2012, are 

satisfied by § 52.1327. 

Subpart II—North Carolina 

■ 13. Section 52.1776 is added to read 

as follows: 

§ 52.1177 Visibility protection. 

(a) Regional Haze. The requirements 

of section 169A of the Clean Air Act are 

not met because the regional haze plan 

submitted by North Carolina on 

December 17, 2007, does not include 

fully approvable measures for meeting 

the requirements of 40 CFR 51.308(d)(3) 

and 51.308(e) with respect to emissions 

of NOX and SO2 from electric generating 

units. EPA has given limited 

disapproval to the plan provisions 

addressing these requirements. 

(b) [Reserved] 

Subpart KK—Ohio 

■ 14. Section 52.1886 is added to read 

as follows: 

§ 52.1886 Visibility protection. 

(a) Regional Haze. The requirements 

of section 169A of the Clean Air Act are 

not met because the regional haze plan 

submitted by Ohio on March 11, 2011, 

does not include fully approvable 

measures for meeting the requirements 

of 40 CFR 51.308(d)(3) and 51.308(e) 

with respect to emissions of NOX and 

SO2 from electric generating units. EPA 

has given limited approval and limited 

disapproval to the plan provisions 

addressing these requirements. 

(b) Measures Addressing Limited 

Disapproval Associated With NOX. The 

deficiencies associated with NOX

identified in EPA’s limited disapproval 

of the regional haze plan submitted by 

Ohio on March 11, 2011, are satisfied 

§ 52.1882. 

(c) Measures Addressing Limited 

Disapproval Associated With SO2. The 

deficiencies associated with SO2

identified in EPA’s limited disapproval 

of the regional haze plan submitted by 

Ohio on March 11, 2011, are satisfied by 

§ 52.1883. 

Subpart NN—Pennsylvania 

■ 15. Section 52.2042 is added to read 

as follows: 

§ 52.2042 Visibility protection. 

(a) Regional Haze. The requirements 

of section 169A of the Clean Air Act are 

not met because the regional haze plan 

submitted by Pennsylvania on 

December 20, 2010, does not include 

fully approvable measures for meeting 

the requirements of 40 CFR 51.308(d)(3) 

and 51.308(e) with respect to emissions 

of NOX and SO2 from electric generating 

units. EPA has given limited approval 

and limited disapproval to the plan 

provisions addressing these 

requirements. 

(b) Measures Addressing Limited 

Disapproval Associated With NOX. The 

deficiencies associated with NOX

identified in EPA’s limited disapproval 

of the regional haze plan submitted by 

Pennsylvania on December 20, 2010, are 

satisfied § 52.2040. 

(c) Measures Addressing Limited 

Disapproval Associated With SO2. The 

deficiencies associated with SO2

identified in EPA’s limited disapproval 

of the regional haze plan submitted by 

Pennsylvania on December 20, 2010, are 

satisfied by § 52.2041. 

Subpart PP—South Carolina 

■ 16. Section 52.2132 is amended by 

revising paragraph (a) and adding new 

paragraphs (d), (e), and (f) to read as 

follows: 

§ 52.2132 Visibility protection. 

(a) Reasonably Attributable Visibility 

Impairment. The requirements of 

section 169A of the Clean Air Act are 

not met because the plan does not 

include approvable measures for 

meeting the requirements of 40 CFR 

51.305 and 51.306 for protection of 

visibility in mandatory Class I Federal 

areas. 

* * * * * 

(d) Regional Haze. The requirements 

of section 169A of the Clean Air Act are 

not met because the regional haze plan 

submitted by South Carolina on 

December 17, 2007, does not include 

fully approvable measures for meeting 

the requirements of 40 CFR 51.308(d)(3) 

and 51.308(e) with respect to emissions 

of NOX and SO2 from electric generating 

units. EPA has given limited 

disapproval to the plan provisions 

addressing these requirements. 

(e) Measures Addressing Limited 

Disapproval Associated with NOX. The 

deficiencies associated with NOX

identified in EPA’s limited disapproval 

of the regional haze plan submitted by 

South Carolina on December 17, 2007, 

are satisfied by § 52.2140. 

(f) Measures Addressing Limited 

Disapproval Associated with SO2. The 

deficiencies associated with SO2

identified in EPA’s limited disapproval 

of the regional haze plan submitted by 

South Carolina on December 17, 2007, 

are satisfied by § 52.2141. 

Subpart RR—Tennessee 

■ 17. Section 52.2234 is amended by 

revising paragraph (a) and adding new 

paragraphs (c) and (d) to read as follows: 

§ 52.2234 Visibility protection. 

(a) Regional Haze. The requirements 

of section 169A of the Clean Air Act are 

not met because the regional haze plan 

submitted by Tennessee on April 4, 

2008, does not include fully approvable 

measures for meeting the requirements 

of 40 CFR 51.308(d)(3) and 51.308(e) 

with respect to emissions of NOX and 

SO2 from electric generating units. EPA 

has given limited approval and limited 

disapproval to the plan provisions 

addressing these requirements. 

* * * * * 

(c) Measures Addressing Limited 

Disapproval Associated with NOX. The 

deficiencies associated with NOX

identified in EPA’s limited disapproval 

of the regional haze plan submitted by 

Tennessee on April 4, 2008, are satisfied 

by § 52.2240. 

(d) Measures Addressing Limited 

Disapproval Associated with SO2. The 

deficiencies associated with SO2

identified in EPA’s limited disapproval 

of the regional haze plan submitted by 

Tennessee on April 4, 2008, are satisfied 

by § 52.2241. 

Subpart SS—Texas 

■ 18. Section 52.2304 is amended by 

revising paragraph (a) and adding new 

paragraph (c) to read as follows: 


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Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Rules and Regulations 33659 

§ 52.2304 Visibility protection. 

(a) Reasonably Attributable Visibility 

Impairment. The requirements of 

section 169A of the Clean Air Act are 

not met because the plan does not 

include fully approvable measures for 

meeting the requirements of 40 CFR 

51.305 for protection of visibility in 

mandatory Class I Federal areas. 

* * * * * 

(c) Regional Haze. The requirements 

of section 169A of the Clean Air Act are 

not met because the regional haze plan 

submitted by Texas on March 31, 2009, 

does not include fully approvable 

measures for meeting the requirements 

of 40 CFR 51.308(d)(3) and 51.308(e) 

with respect to emissions of NOX and 

SO2 from electric generating units. EPA 

has given limited disapproval to the 

plan provisions addressing these 

requirements. 

Subpart VV—Virginia 

■ 19. Section 52.2452 is amended by 

revising paragraph (a) and adding new 

paragraphs (d), (e), and (f) to read as 

follows: 

§ 52.2452 Visibility protection. 

(a) Reasonably Attributable Visibility 

Impairment. The requirements of 

section 169A of the Clean Air Act are 

not met because the plan does not 

include approvable measures for 

meeting the requirements of 40 CFR 

51.305 and 51.306 for protection of 

visibility in mandatory Class I Federal 

areas. 

* * * * * 

(d) Regional Haze. The requirements 

of section 169A of the Clean Air Act are 

not met because the regional haze plan 

submitted by Virginia on July 17, 2008, 

March 6, 2009, January 14, 2010, 

October 4, 2010, November 19, 2010, 

and May 6, 2011, does not include fully 

approvable measures for meeting the 

requirements of 40 CFR 51.308(d)(3) and 

51.308(e) with respect to emissions of 

NOX and SO2 from electric generating 

units. EPA has given limited approval 

and limited disapproval to the plan 

provisions addressing these 

requirements. 

(e) Measures Addressing Limited 

Disapproval Associated with NOX. The 

deficiencies associated with NOX

identified in EPA’s limited disapproval 

of the regional haze plan submitted by 

Virginia on July 17, 2008, March 6, 

2009, January 14, 2010, October 4, 2010, 

November 19, 2010, and May 6, 2011, 

are satisfied by § 52.2440. 

(f) Measures Addressing Limited 

Disapproval Associated with SO2. The 

deficiencies associated with SO2

identified in EPA’s limited disapproval 

of the regional haze plan submitted by 

Virginia on July 17, 2008, March 6, 

2009, January 14, 2010, October 4, 2010, 

November 19, 2010, and May 6, 2011, 

are satisfied by § 52.2441. 

Subpart XX—West Virginia 

■ 20. Section 52.2533 is amended by 

revising paragraphs (a) and (d) and 

adding new paragraphs (e) and (f) to 

read as follows: 

§ 52.2533 Visibility protection. 

(a) Reasonably Attributable Visibility 

Impairment. The requirements of 

section 169A of the Clean Air Act are 

not met because the plan does not 

include approvable measures for 

meeting the requirements of 40 CFR 

51.305, 51.306, and 51.307 for 

protection of visibility in mandatory 

Class I Federal areas. 

* * * * * 

(d) Regional Haze. The requirements 

of section 169A of the Clean Air Act are 

not met because the regional haze plan 

submitted by West Virginia on June 18, 

2008, does not include fully approvable 

measures for meeting the requirements 

of 40 CFR 51.308(d)(3) and 51.308(e) 

with respect to emissions of NOX and 

SO2 from electric generating units. EPA 

has given limited approval and limited 

disapproval to the plan provisions 

addressing these requirements. 

(e) Measures Addressing Limited 

Disapproval Associated with NOX. The 

deficiencies associated with NOX

identified in EPA’s limited disapproval 

of the regional haze plan submitted by 

West Virginia on June 18, 2008, are 

satisfied by § 52.2540. 

(f) Measures Addressing Limited 

Disapproval Associated with SO2. The 

deficiencies associated with SO2

identified in EPA’s limited disapproval 

of the regional haze plan submitted by 

West Virginia on June 18, 2008, are 

satisfied by § 52.2541. 

[FR Doc. 2012–13693 Filed 6–6–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R05–OAR–2010–0394; FRL–9663–1] 

Approval and Promulgation of Air 

Quality Implementation Plans; Illinois; 

Consumer Products and AIM Rules 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving the addition 

of a new rule to the Illinois State 

Implementation Plan (SIP) submitted by 

the Illinois Environmental Protection 

Agency (IEPA) on April 7, 2010. The 

rule being approved into the SIP is Title 

35 Illinois Administrative Code (IAC) 

Part 223, ‘‘Standards and Limitations for 

Organic Material Emissions for Area 

Sources.’’ The rule is approvable 

because it is at least as stringent, and in 

some cases more stringent than, EPA’s 

national consumer products and 

architectural and industrial 

maintenance (AIM) coatings rules. 

However, EPA is conditionally 

approving four specific paragraphs in 

the rule, based on a September 2, 2011, 

letter from IEPA committing to correct 

the noted deficiencies in these 

paragraphs within one year of July 9, 

2012. 

DATES: This final rule is effective on July 

9, 2012. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R05–OAR–2010–0394. All 

documents in the docket are listed on 

the www.regulations.gov Web site. 

Although listed in the index, some 

information is not publicly available, 

i.e., Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

www.regulations.gov or in hard copy at 

the Environmental Protection Agency, 

Region 5, Air and Radiation Division, 77 

West Jackson Boulevard, Chicago, 

Illinois 60604. This facility is open from 

8:30 a.m. to 4:30 p.m., Monday through 

Friday, excluding Federal holidays. We 

recommend that you telephone Anthony 

Maietta, Environmental Protection 

Specialist, at (312) 353–8777 before 

visiting the Region 5 office. 

FOR FURTHER INFORMATION CONTACT: 

Anthony Maietta, Environmental 

Protection Specialist, Control Strategies 

Section, Air Programs Branch (AR–18J), 

Environmental Protection Agency, 

Region 5, 77 West Jackson Boulevard, 

Chicago, Illinois 60604, (312) 353–8777, 

maietta.anthony@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. This supplementary information 

section is arranged as follows: 

I. Background 

II. Did EPA receive any comments on our 

proposed rulemaking? 

III. What action is EPA taking? 

IV. Statutory and Executive Order Reviews 


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