Federal Register / Vol. 77, No. 124 / Wednesday, June 27, 2012 / Rules and Regulations 38185 

PM2.5 nonattainment area has attained 

the 1997 PM2.5 NAAQS. This 

determination, in accordance with 40 

CFR 51.1004(c), suspends the 

requirements for this area to submit an 

attainment demonstration, associated 

reasonably available control measures, 

reasonable further progress, contingency 

measures, and other plan elements 

related to attainment of the standards 

for as long as the area continues to meet 

the 1997 PM2.5 NAAQS. In addition, 

based upon review of the air quality 

data for the 3-year period 2007 to 2009, 

EPA has determined that the St. Louis 

(MO-IL) PM2.5 nonattainment area has 

attained the 1997 PM2.5 NAAQS by the 

applicable attainment date of April 5, 

2010. 

■ 3. Section 52.1341 is revised to read 

as follows: 

§ 52.1341 Control strategy: Particulate. 

Determination of attainment. EPA has 

determined, as of May 23, 2011, that the 

St. Louis (MO-IL) metropolitan 1997 

PM2.5 nonattainment area has attained 

the 1997 PM2.5 NAAQS. This 

determination, in accordance with 40 

CFR 51.1004(c), suspends the 

requirements for this area to submit an 

attainment demonstration, associated 

reasonably available control measures, 

reasonable further progress, contingency 

measures, and other plan elements 

related to attainment of the standards 

for as long as the area continues to meet 

the 1997 PM2.5 NAAQS. In addition, 

based upon EPA’s review of the air 

quality data for the 3-year period 2007 

to 2009, the St. Louis (MO-IL) PM2.5

nonattainment area has attained the 

1997 PM2.5 NAAQS by the applicable 

attainment date of April 5, 2010. 

[FR Doc. 2012–15573 Filed 6–26–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2010–0219; FRL–9691–5] 

Approval and Promulgation of 

Implementation Plans; State of North 

Carolina; Regional Haze State 

Implementation Plan 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is finalizing a limited 

approval of a revision to the North 

Carolina State Implementation Plan 

(SIP) submitted by the State of North 

Carolina through the North Carolina 

Department of Environment and Natural 

Resources (NC DENR), Division of Air 

Quality (DAQ), on December 17, 2007. 

North Carolina’s December 17, 2007, SIP 

revision addresses regional haze for the 

first implementation period. 

Specifically, this SIP revision addresses 

the requirements of the Clean Air Act 

(CAA or Act) and EPA’s rules that 

require states to prevent any future and 

remedy any existing anthropogenic 

impairment of visibility in mandatory 

Class I areas (national parks and 

wilderness areas) caused by emissions 

of air pollutants from numerous sources 

located over a wide geographic area 

(also referred to as the ‘‘regional haze 

program’’). States are required to assure 

reasonable progress toward the national 

goal of achieving natural visibility 

conditions in Class I areas. EPA is 

finalizing a limited approval of North 

Carolina’s December 17, 2007, SIP 

revision to implement the regional haze 

requirements for North Carolina on the 

basis that this SIP revision, as a whole, 

strengthens the North Carolina SIP. In a 

separate action published on June 7, 

2012, EPA finalized a limited 

disapproval of this same SIP revision 

because of the deficiencies in the State’s 

regional haze SIP revision arising from 

the remand by the U.S. Court of Appeals 

for the District of Columbia Circuit (D.C. 

Circuit) to EPA of the Clean Air 

Interstate Rule (CAIR). 

DATES: Effective Date: This rule will be 

effective July 27, 2012. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R04–OAR– 

2010–0219. 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 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 Regulatory Development Section, 

Air Planning Branch, Air, Pesticides and 

Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. EPA 

requests that if at all possible, you 

contact the person listed in the FOR

FURTHER INFORMATION CONTACT section 

for further information. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 to 4:30, 

excluding federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Michele Notarianni, Regulatory 

Development Section, Air Planning 

Branch, Air, Pesticides and Toxics 

Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. Michele 

Notarianni can be reached at telephone 

number (404) 562–9031 and by 

electronic mail at 

notarianni.michele@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. What is the background for this final 

action? 

II. What is EPA’s response to comments 

received on this action? 

III. What is the effect of this final action? 

IV. Final Action 

V. Statutory and Executive Order Reviews 

I. What is the background for this final 

action? 

Regional haze is visibility impairment 

that is produced by a multitude of 

sources and activities which are located 

across a broad geographic area and emit 

fine particles (e.g., sulfates, nitrates, 

organic carbon, elemental carbon, and 

soil dust), and their precursors (e.g., 

sulfur dioxide (SO2), nitrogen oxides 

(NOX), and in some cases, ammonia and 

volatile organic compounds). Fine 

particle precursors react in the 

atmosphere to form fine particulate 

matter (PM2.5) which impairs visibility 

by scattering and absorbing light. 

Visibility impairment reduces the 

clarity, color, and visible distance that 

one can see. PM2.5 can also cause 

serious health effects and mortality in 

humans and contributes to 

environmental effects such as acid 

deposition and eutrophication. 

In section 169A of the 1977 

Amendments to the CAA, Congress 

created a program for protecting 

visibility in the nation’s national parks 

and wilderness areas. This section of the 

CAA establishes as a national goal the 

‘‘prevention of any future, and the 

remedying of any existing, impairment 

of visibility in mandatory Class I areas 

which impairment results from 

manmade air pollution.’’ On December 

2, 1980, EPA promulgated regulations to 

address visibility impairment in Class I 

areas that is ‘‘reasonably attributable’’ to 

a single source or small group of 

sources, i.e., ‘‘reasonably attributable 

visibility impairment.’’ See 45 FR 

80084. These regulations represented 

the first phase in addressing visibility 

impairment. EPA deferred action on 

regional haze that emanates from a 

variety of sources until monitoring, 

modeling, and scientific knowledge 


emcdonald on DSK67QTVN1PROD with RULES
38186 Federal Register / Vol. 77, No. 124 / Wednesday, June 27, 2012 / Rules and Regulations 

1 In a separate action, published on June 7, 2012 

(77 FR 33642), EPA finalized a limited disapproval 

of the North Carolina regional haze SIP because of 

deficiencies in the State’s regional haze SIP 

submittal arising from the State’s reliance on CAIR 

to meet certain regional haze requirements. This 

final limited disapproval triggers a 24-month clock 

by which a Federal Implementation Plan (FIP) or 

EPA-approved SIP must be in place to address the 

deficiencies. 

2 In a final action published on July 6, 2005, EPA 

addressed similar comments related to CAIR and 

determined that CAIR makes greater reasonable 

progress than BART for certain EGUs and pollutants 

(70 FR 39138). EPA did not reopen comment on 

that issue through this rulemaking. 

about the relationships between 

pollutants and visibility impairment 

were improved. 

Congress added section 169B to the 

CAA in 1990 to address regional haze 

issues. EPA promulgated a rule to 

address regional haze on July 1, 1999 

(64 FR 35713), the Regional Haze Rule 

(RHR). The RHR revised the existing 

visibility regulations to integrate into 

the regulation provisions addressing 

regional haze impairment and 

established a comprehensive visibility 

protection program for Class I areas. The 

requirements for regional haze, found at 

40 CFR 51.308 and 51.309, are included 

in EPA’s visibility protection 

regulations at 40 CFR 51.300–309. The 

requirement to submit a regional haze 

SIP applies to all 50 states, the District 

of Columbia, and the Virgin Islands. 40 

CFR 51.308(b) requires states to submit 

the first implementation plan 

addressing regional haze visibility 

impairment no later than December 17, 

2007. 

On December 17, 2007, NC DENR 

submitted a revision to North Carolina’s 

SIP to address regional haze in the 

State’s and other states’ Class I areas. On 

February 28, 2012, EPA published an 

action proposing a limited approval of 

North Carolina’s December 17, 2007, SIP 

revision to address the first 

implementation period for regional 

haze.1 See 77 FR 11858. EPA proposed a 

limited approval of North Carolina’s 

December 17, 2007, SIP revision to 

implement the regional haze 

requirements for North Carolina on the 

basis that this revision, as a whole, 

strengthens the North Carolina SIP. See 

section II of this rulemaking for a 

summary of the comments received on 

the proposed actions and EPA’s 

responses to these comments. Detailed 

background information and EPA’s 

rationale for the proposed action is 

provided in EPA’s February 28, 2012, 

proposed rulemaking. 

Following the remand of CAIR, EPA 

issued a new rule in 2011 to address the 

interstate transport of NOX and SO2 in 

the eastern United States. See 76 FR 

48208 (August 8, 2011) (‘‘the Transport 

Rule,’’ also known as the Cross-State Air 

Pollution Rule (CSAPR)). On December 

30, 2011, EPA proposed to find that the 

trading programs in the Transport Rule 

would achieve greater reasonable 

progress towards the national goal of 

achieving natural visibility conditions 

than would best available retrofit 

technology (BART) in the states in 

which the Transport Rule applies 

(including North Carolina). See 76 FR 

82219. Based on this proposed finding, 

EPA also proposed to revise the RHR to 

allow states to substitute participation 

in the trading programs under the 

Transport Rule for source-specific 

BART. EPA finalized this finding and 

RHR revision on June 7, 2012 (77 FR 

33642). 

Also on December 30, 2011, the DC 

Circuit 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. 

II. What is EPA’s response to comments 

received on this action? 

EPA received two sets of comments 

on the February 28, 2012, rulemaking 

proposing a limited approval of North 

Carolina’s December 17, 2007, regional 

haze SIP revision. Specifically, the 

comments were received from the 

Southern Environmental Law Center (on 

behalf of the National Parks 

Conservation Association and the Sierra 

Club) and the U.S. National Park 

Service. Full sets of the comments 

provided by all of the aforementioned 

entities (hereinafter referred to as ‘‘the 

Commenter’’) are provided in the docket 

for today’s final action. A summary of 

the comments and EPA’s responses are 

provided below. 

Comment 1: The Commenter 

incorporates by reference comments that 

it submitted to EPA on February 28, 

2012, regarding the Agency’s December 

30, 2011, proposed rulemaking to find 

that the Transport Rule is ‘‘Better than 

BART’’ and to use the Transport Rule as 

an alternative to BART for North 

Carolina and other states subject to the 

Transport Rule. See 76 FR 82219. The 

Commenter also restates several of these 

comments, including the following: the 

Transport Rule does not comply with 

EPA’s criteria for an alternative to 

BART; the State cannot rely on the 

proposed ‘‘Better than BART’’ 

rulemaking given the DC Circuit’s action 

staying implementation of the Transport 

Rule; EPA has not accounted for the 

differences in averaging time under 

BART, the Transport Rule, and in 

measuring visibility impacts; EPA’s 

modeling assumed nitrate levels that are 

often lower than real-world conditions; 

in some instances, EPA relied on a 

single monitor to assess visibility 

conditions in multiple Class I areas; 

EPA uses a simple arithmetic mean to 

conclude that visibility improvements 

will be greater under the Transport Rule 

than BART; and EPA’s proposed ‘‘Better 

than BART’’ determination relies on a 

2014 base case that does not account for 

permanent emissions reductions at nonBART eligible sources. 

Response 1: These comments are 

beyond the scope of this rulemaking. In 

today’s action, EPA is finalizing a 

limited approval of North Carolina’s 

regional haze SIP. EPA did not propose 

to find that participation in the 

Transport Rule is an alternative to 

BART in this action nor did EPA reopen 

discussions on the CAIR provisions as 

they relate to BART.2 As noted above, 

EPA proposed to find that the Transport 

Rule is ‘‘Better than BART’’ and to use 

the Transport Rule as an alternative to 

BART for North Carolina in a separate 

action on December 30, 2011, and the 

Commenter is merely reiterating and 

incorporating its comments on that 

separate action. EPA addressed these 

comments concerning the Transport 

Rule as a BART alternative in a final 

action that was published on June 7, 

2012, and has determined that they do 

not affect the Agency’s ability to finalize 

a limited approval of North Carolina’s 

regional haze SIP. EPA’s responses to 

these comments can be found in Docket 

ID No. EPA–HQ–OAR–2011–0729 at 

www.regulations.gov. 

Comment 2: The Commenter asserts 

that the proposed limited approval of 

North Carolina’s regional haze SIP 

violates the CAA and RHR because a 

regional haze plan’s BART requirements 

and long-term strategy to achieve 

reasonable progress cannot be evaluated 

in isolation from one another. The 

Commenter supports its position by 

repeating statements made in its 

February 28, 2012, comments on the 

Agency’s proposed December 30, 2011, 

rulemaking to find that the Transport 

Rule is ‘‘Better than BART’’ and to use 

the Transport Rule as an alternative to 

BART for North Carolina and other 

states subject to the Transport Rule. For 

example, the Commenter states that 

‘‘[b]ecause BART is a critical component 

to achieving reasonable progress, 

neither the states nor EPA are 

authorized to exempt sources from the 

RHR’s BART requirements without 

considering how doing so will affect the 

overarching reasonable progress 


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Federal Register / Vol. 77, No. 124 / Wednesday, June 27, 2012 / Rules and Regulations 38187 

3See EPA, Response to Comments Document, 

Regional Haze: Revisions to Provisions Governing 

Alternatives to Source-Specific Best Available 

Retrofit Technology (BART) Determinations, 

Limited SIP Disapprovals, and Federal 

Implementation Plans (76 FR 82219; December 30, 

2011), Docket Number EPA–HQ–OAR–2011–0729 

(May 30, 2012), pages 49–51 (noting that EPA 

‘‘disagree[s] with comments that we cannot evaluate 

the BART requirements in isolation from the 

reasonable progress requirements. We have on 

several occasions undertaken evaluations of a 

state’s BART determination or promulgated a FIP 

separately from our evaluation of whether the SIP 

as a whole will ensure reasonable progress.’’). 

4Processing of State Implementation Plan (SIP) 

Revisions, EPA Memorandum from John Calcagni, 

Director, Air Quality Management Division, 

OAQPS, to Air Division Directors, EPA Regional 

Offices I–X, September 7, 1992, (‘‘1992 Calcagni 

Memorandum’’) located at http://www.epa.gov/ttn/ 

caaa/t1/memoranda/siproc.pdf. 

mandate. * * * Concluding that CSAPR 

achieves greater reasonable progress 

toward achieving natural visibility 

conditions than BART, without regard 

to defined reasonable progress goals, is 

arbitrary and contrary to law under the 

Clean Air Act and the RHR.’’ 

Response 2: As discussed in the 

response to Comment 1, today’s action 

does not address reliance on CAIR or 

CSAPR to satisfy BART requirements. 

Comments related to the approvability 

of CAIR or CSAPR for the North 

Carolina regional haze SIP are therefore 

beyond the scope of this rulemaking and 

were addressed by EPA in a separate 

action published on June 7, 2012 (77 FR 

33642). EPA addressed the Commenter’s 

repeated statements regarding the 

interrelatedness of BART, the LTS, and 

RPGs in that final rulemaking action 

and those responses support this limited 

approval action.3

Comment 3: The Commenter asserts 

that EPA does not have the authority 

under the CAA to issue a limited 

approval of North Carolina’s regional 

haze SIP. The Commenter contends that 

section 110(k) of the Act only allows 

EPA to fully approve, partially approve 

and partially disapprove, conditionally 

approve, or fully disapprove a SIP. 

Response 3: As discussed in the 

September 7, 1992, EPA memorandum 

cited in the notice of proposed 

rulemaking,4 although section 110(k) of 

the CAA may not expressly provide 

authority for limited approvals, the 

plain language of section 301(a) does 

provide ‘‘gap-filling’’ authority 

authorizing the Agency to ‘‘prescribe 

such regulations as are necessary to 

carry out’’ EPA’s CAA functions. EPA 

may rely on section 301(a) in 

conjunction with the Agency’s SIP 

approval authority in section 110(k)(3) 

to issue limited approvals where it has 

determined that a submittal strengthens 

a given state’s implementation plan and 

that the provisions meeting the 

applicable requirements of the Act are 

not separable from the provisions that 

do not meet the Act’s requirements. EPA 

has adopted the limited approval 

approach numerous times in SIP actions 

across the nation over the last twenty 

years. A limited approval action is 

appropriate here because EPA has 

determined that North Carolina’s SIP 

revision addressing regional haze, as a 

whole, strengthen the State’s 

implementation plan and because the 

provisions in the SIP revision are not 

separable. 

The Commenter states that EPA’s 

action ‘‘conflicts with the plain 

language of the [CAA]’’ and cites several 

federal appellate court decisions to 

support its contention that section 

110(k) of the Act limits EPA to a full 

approval, ‘‘a conditional approval, a 

partial approval and disapproval, or a 

full disapproval.’’ However, adopting 

the Commenter’s position would ignore 

section 301 and violate the 

‘‘ ‘fundamental canon of statutory 

construction that the words of a statute 

must be read in their context and with 

a view to their place in the overall 

statutory scheme’ * * *. A court must 

therefore interpret the statute ‘as a 

symmetrical and coherent regulatory 

scheme,’ * * * and ‘fit, if possible, all 

parts into an harmonious whole.’ ’’ FDA 

v. Brown & Williamson Tobacco Corp., 

529 U.S. 120, 133 (2000) (quoting Davis 

v. Michigan Dept. of Treasury, 489 U.S. 

803, 809 (1989), Gustafson v. Alloyd 

Co., 513 U.S. 561, 569 (1995), and FTC 

v. Mandel Brothers, Inc., 359 U.S. 385, 

389 (1959)). Furthermore, the cases 

cited by the Commenter did not involve 

challenges to a limited approval 

approach, and one of the cases, 

Abramowitz v. EPA, 832 F.2d 1071 (9th 

Cir. 1988), predates the 1990 CAA 

amendments enacting section 110(k). 

Comment 4: The Commenter contends 

that it was inappropriate for the State to 

‘‘rel[y] on CAIR (and now CSAPR)’’ in 

determining RPGs and that due, in part, 

to this reliance, the State ‘‘failed to 

evaluate numerous sources that 

contribute significantly to visibility 

impairment at the State’s Class I areas’’ 

and that it ‘‘cast doubts on the validity 

of DAQ’s modeling.’’ The Commenter 

therefore believes that EPA should not 

approve the SIP unless the State 

considers additional reasonable progress 

from the 16 electric generating units 

(EGUs) excluded from the reasonable 

progress analyses and the State 

conducts further analyses in setting its 

RPGs (or EPA ‘‘ensure[s] that DAQ 

follows through on its commitment to 

re-evaluate its ability to meet its RPGs 

in the five-year progress review, 

pursuant to 40 CFR 52.308(g)’’). The 

Commenter also states that ‘‘even when 

the uniform rate of progress [URP] is 

predicted to be met, the state still has an 

obligation ‘to go beyond the URP 

analysis in establishing RPGs * * * to 

determine whether additional progress 

would be reasonable based on the 

statutory factors.’ ’’ 

Response 4: The State took into 

account emissions reductions expected 

from CAIR to determine the 2018 RPGs 

for its Class I areas, and this approach 

was fully consistent with EPA guidance 

at the time of SIP development. In the 

regional haze program, uncertainties 

associated with modeled emissions 

projections into the future are addressed 

through the requirement under the RHR 

to submit periodic progress reports in 

the form of a SIP revision. Specifically, 

40 CFR 51.308(g) requires each state to 

submit a report every five years 

evaluating progress toward the RPGs for 

each mandatory Class I area located in 

the state and for each Class I area 

outside the state that may be affected by 

emissions from the state. Since this fiveyear progress re-evaluation is a 

mandatory requirement, it is 

unnecessary for EPA to take additional 

measures to ‘‘ensure’’ that the State 

meets its reporting obligation. 

Regarding the need to go beyond the 

URP analysis when establishing RPGs, 

EPA affirmed in the RHR that the URP 

is not a ‘‘presumptive target;’’ rather, it 

is an analytical requirement for setting 

RPGs. See 64 FR 35731. In determining 

RPGs for the North Carolina Class I 

areas, the State identified sources 

through its area of influence 

methodology for reasonable progress 

control evaluation and described those 

evaluations in its SIP. For its EGUs 

subject to CAIR, DAQ reviewed the 

statutory factors (i.e., the costs of 

compliance, the time necessary for 

compliance, the energy and non-air 

quality environmental impacts of 

compliance, and the remaining useful 

life of any potentially affected sources) 

as evaluated by EPA for CAIR. 

Comment 5: The Commenter states 

that in exempting EGUs from a BART 

analysis for particulate matter ‘‘on the 

basis that their contribution to visibility 

impairment modeled less than 0.5 

deciview, it does not appear that DAQ 

considered the cumulative impact of 

those sources that did not individually 

exceed the 0.5 dv threshold, but 

collectively may cause or contribute to 

impairment.’’ The Commenter cites to 

EPA guidelines in 70 FR 39161 to 

support its belief that this exemption 

threshold ‘‘applies when all visibility 

impairing pollutants are modeled 

together, not one pollutant at a time, as 

used by DAQ.’’ According to the 


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38188 Federal Register / Vol. 77, No. 124 / Wednesday, June 27, 2012 / Rules and Regulations 

5Regional Haze Regulations and Guidelines for 

Best Available Retrofit Technology (BART) 

Determinations, EPA Memorandum from Joseph 

Paisie, Group Leader, Geographic Strategies Group, 

OAQPS, to Kay Prince, Branch Chief, EPA Region 

4, July 19, 2006, located at: http://www.epa.gov/ 

visibility/pdfs/memo_2006_07_19.pdf. 

6 Guidance for Setting Reasonable Progress Goals 

Under the Regional Haze Program,, July 1, 2007, 

memorandum from William L.Wehrum, Acting 

Assistant Administrator for Air and Radiation, to 

EPA Regional Administrators, EPA Regions 1–10 

(‘‘EPA’s Reasonable Progress Guidance’’), page 4–2. 

Commenter, when considering the 

modeling impacts from coarse 

particulate matter (PM10) alone for the 

exempted sources, their combined 

‘‘contribution to visibility impairment 

greatly exceeds the 0.5 dv contribution 

threshold,’’ calling into question the 

‘‘validity of DAQ’s exemptions of 

multiple sources from BART.’’ 

Response 5: As discussed in the 

proposal, (see section IV.C.6.B.2, 

February 28, 2012, 77 FR 11873), North 

Carolina adequately justified its 

contribution threshold of 0.5 deciview. 

While states have the discretion to set 

an appropriate contribution threshold 

considering the number of emissions 

sources affecting the Class I area at issue 

and the magnitude of the individual 

sources’ impacts, the states’ analysis 

must be consistent with the CAA, the 

RHR, and EPA’s Guidelines for BART 

Determinations Under the Regional 

Haze Rule at Appendix Y to 40 CFR Part 

51 (BART Guidelines). Consistent with 

the regulations and EPA’s guidance, 

‘‘the contribution threshold should be 

used to determine whether an 

individual source is reasonably 

anticipated to contribute to visibility 

impairment. You should not aggregate 

the visibility effects of multiple sources 

and compare their collective effects 

against your contribution threshold 

because this would inappropriately 

create a ‘contribution to contribution’ 

test.’’ See also 70 FR 39121. North 

Carolina’s analysis in the regional haze 

SIP revision was consistent with EPA’s 

regulations and guidance on the issue of 

cumulative analyses. 

Regarding modeling in North 

Carolina’s submittal that uses PM only 

for its BART-eligible EGUs, EPA 

previously determined that this 

approach is appropriate for EGUs where 

the State proposed to rely on CAIR to 

satisfy the BART requirements for SO2

and NOX.5

Comment 6: The Commenter believes 

that ‘‘it is simply absurd for North 

Carolina to exempt’’ Blue Ridge Paper 

Products from the obligation to install 

BART and that the State ‘‘should work 

with the company to develop a facilitywide emissions reduction plan by 2013 

and to implement the plan by 2018.’’ 

Response 6: In accordance with the 

BART Guidelines, to determine the level 

of control that represents BART for each 

source, the State first reviewed existing 

controls on the five BART-eligible units 

at the Blue Ridge facility to assess 

whether these constituted the best 

controls currently available, then 

identified what other technically 

feasible controls are available, and 

finally, evaluated the technically 

feasible controls using the five BART 

statutory factors. The units subject to 

the BART requirements at Blue Ridge 

Paper include the two recovery 

furnaces, their associated smelt 

dissolving tanks, and the black liquor 

oxidation system. DAQ concluded that 

BART for all of these emissions sources 

is the existing emissions control systems 

currently in place. As discussed in the 

proposal (see section IV.C.6.C, February 

28, 2012, 77 FR 11874), DAQ evaluated 

the available controls for BART and 

determined that these additional 

controls were either technically or 

economically infeasible. EPA has 

reviewed North Carolina’s analyses and 

concluded that they were conducted in 

a manner that is consistent with EPA’s 

BART Guidelines and EPA’s Air 

Pollution Control Cost Manual (http:// 

www.epa.gov/ttncatc1/ 

products.html#cccinfo). Therefore, the 

conclusions reflect a reasonable 

application of EPA’s guidance to these 

sources. 

Comment 7: The Commenter contends 

that EPA must require North Carolina to 

include ‘‘a retirement discussion that 

provides a realistic picture of future 

emissions from BART-subject sources’’ 

in its SIP pursuant to 40 CFR 

51.308(d)(3)(v) as there is ‘‘no 

discussion of planned or potential EGU 

(or other source) retirements due to 

changes in energy markets, new 

regulations, and other factors.’’ 

Response 7: Source retirement and 

replacement schedules are explicitly 

part of the emissions inventory that the 

State used to project future conditions. 

The projected inventories for 2009 and 

2018 account for post-2002 emissions 

reductions from promulgated and 

proposed federal, state, local, and sitespecific control programs. For EGUs, the 

Integrated Planning Model (IPM) was 

run to estimate emissions of the 

proposed and existing units in 2009 and 

2018. These results were adjusted based 

on state and local air agencies’ 

knowledge of planned emissions 

controls at specific EGUs. In the case of 

North Carolina, DAQ replaced all IPM 

2009 results with emissions projections 

from Duke Power’s and Progress 

Energy’s North Carolina Clean 

Smokestacks Act Compliance Plan for 

2006. For non-EGUs, Visibility 

Improvement State and Tribal 

Association of the Southeast (VISTAS) 

used recently updated growth and 

control data consistent with the data 

used in EPA’s CAIR analyses and 

supplemented by state and local air 

agencies’ data and updated forecasts 

from the U.S. Department of Energy. 

These updates are documented in the 

MACTEC emissions inventory report 

‘‘Documentation of the 2002 Base Year 

and 2009 and 2018 Projection Year 

Emission Inventories for VISTAS’’ dated 

February 2007 (Appendix D of the North 

Carolina regional haze SIP submittal). 

The technical information provided in 

the record demonstrates that the 

emissions inventory in the SIP 

adequately reflects projection 2018 

conditions and that the LTS meets the 

requirements of the RHR and is 

approvable. EPA finds that these 

inventories provide a reasonable 

assessment of future emissions from 

North Carolina sources. 

Comment 8: According to the 

Commenter, it was ‘‘inappropriate and 

arbitrary for DAQ to use the [State’s 

Clean Smokestack’s Act] cost per ton of 

SO2 removed as the cost threshold for 

evaluating reasonable progress controls. 

The only rationale DAQ offered in 

support of this decision was that DAQ 

‘believes it is not equitable to require 

non-EGUs to bear a greater economic 

burden than EGUs for a given control 

strategy’. * * * EPA acknowledges that 

‘the use of a specific threshold for 

assessing costs means that a state may 

not fully consider available emissions 

reduction measures above its threshold 

that would result in meaningful 

visibility improvement,’ but proposes to 

approve North Carolina’s reasonable 

progress analysis anyway. EPA should 

re-evaluate this decision in its final 

action on this proposal, especially in 

light of the fact that DAQ determined 

that no additional reasonable controls 

were required at any of the sources 

affecting visibility in North Carolina’s 

Class I areas.’’ 

Response 8: As noted in EPA’s 

Reasonable Progress Guidance,6 the 

states have wide latitude to determine 

appropriate additional control 

requirements for ensuring reasonable 

progress, and there are many ways for 

a state to approach identification of 

additional reasonable measures. States 

must consider, at a minimum, the four 

statutory factors in determining 

reasonable progress, but states have 

flexibility in how to take these factors 

into consideration. 

After reviewing DAQ’s methodology 

and analyses and the record prepared by 


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Federal Register / Vol. 77, No. 124 / Wednesday, June 27, 2012 / Rules and Regulations 38189 

7 1992 Calcagni Memorandum. 

DAQ, EPA finds North Carolina’s 

conclusion that no further controls are 

necessary at this time acceptable. As 

discussed in EPA’s February 28, 2012, 

proposal, the State adequately evaluated 

the control technologies available at the 

time of its analysis and applicable to 

this type of facility and consistently 

applied its criteria for reasonable 

compliance costs. See 77 FR 11872. The 

State also included appropriate 

documentation in its SIP of the 

technical analysis it used to assess the 

need for and implementation of 

reasonable progress controls. Although 

the use of a specific threshold for 

assessing costs means that a state may 

not fully consider available emissions 

reduction measures above its threshold 

that would result in meaningful 

visibility improvement, EPA believes 

that the North Carolina SIP ensures 

reasonable progress. 

In approving North Carolina’s 

reasonable progress analysis, EPA is 

placing great weight on the fact that 

there is no indication in the SIP revision 

that North Carolina, as a result of using 

a specific cost effectiveness threshold, 

rejected potential reasonable progress 

measures that would have had a 

meaningful impact on visibility in its 

Class I areas. 

Comment 9: The Commenter believes 

that EPA should require the State to 

verify that units 3 and 4 at PCS 

Phosphate have been shut down. 

Response 9: The construction permit 

for the new unit 7 required the 

shutdown of these two units as a 

condition of commencing operation. 

The new unit is operating, and units 3 

and 4 have been shut down. 

Comment 10: The Commenter states 

that ‘‘[a]ssurances of the State’s ‘intent’ 

to ‘have discussions’ and to ‘encourage’ 

pollution reduction measures’’ at Blue 

Ridge Paper, provided in response to the 

Federal Land Managers’ (FLMs’) request 

that the State describe a plan to consult 

with Blue Ridge Paper on potential 

control actions prior to 2018 that may 

warrant a higher cost of control for 

reasonable progress, ‘‘does not satisfy 

the requirement to demonstrate 

reasonable progress toward the State’s 

visibility goals.’’ 

Response 10: North Carolina did not 

rely on additional controls at this 

facility to demonstrate that the State 

would meet its RPGs for this first 

implementation period, and DAQ stated 

in its SIP revision that additional 

controls are not required at the facility 

during the first implementation period. 

The State did not rely on the 

‘‘discussions’’ and ‘‘encouragement’’ to 

contribute any emissions reductions to 

meeting the RPG goals for this first 

implementation period. It also made 

clear that conclusions reached regarding 

appropriate levels of control to meet 

reasonable progress for this first 

implementation period did not extend 

to the next implementation period. In 

subsequent implementation periods, 

North Carolina will once again 

determine the pollutants and sources 

with the greatest impact on visibility 

and implement appropriate emissions 

reduction measures as part of North 

Carolina’s LTS for future 

implementation periods. 

Comment 11: The Commenter claims 

that there is no information in the 

docket supporting the cost estimates for 

Blue Ridge Paper Products used by the 

State to determine that ‘‘there are no 

cost-effective controls available for these 

units at this time within the cost 

threshold established for this reasonable 

progress assessment. . . . Without 

supporting data in the docket, neither 

we nor EPA can determine that the 

proper costing methodology was 

followed.’’ 

Response 11: Blue Ridge Paper 

Products submitted supporting 

materials to the State for the BART 

determination that adequately 

document the cost methodology for the 

control equipment (included in 

Appendix L.10 of North Carolina’s 

regional haze SIP submittal). North 

Carolina also summarized its evaluation 

methodology for lower sulfur coal 

options for two additional units 

evaluated for reasonable progress 

(Appendix H of the North Carolina’s 

regional haze SIP submittal). Since this 

analysis involved the use of alternative 

coals, it is based on the cost premium 

for these coals and no costs for 

additional control equipment are 

projected. EPA has reviewed the 

supporting materials provided by DAQ 

and finds no reason to question the 

estimates or the conclusions reached by 

the State. 

Comment 12: The Commenter 

recommends that EPA defer action on 

the Reasonable Progress analysis for 

Blue Ridge Paper Products until the 

State conducts a ‘‘valid four-factor 

analysis’’ and provides that analysis for 

public review. Specifically, the 

Commenter ‘‘could find no information 

in the docket to support any of the ‘cost 

of compliance’ estimates presented by 

EPA’’ and without such documentation, 

the Commenter is ‘‘unable to provide 

informed comments on their validity or 

on the conclusions upon which they 

were based.’’ 

Response 12: See the response to 

Comment 11. In addition, EPA notes 

that the Commenter was provided a 

draft of the North Carolina’s regional 

haze SIP for review prior to the State’s 

release of the SIP revision for public 

comment, and that the SIP revision 

went through public notice and 

comment rulemaking before the State 

submitted it to EPA. The Commenter 

raised no concerns with the adequacy of 

the documentation prior to EPA’s 

proposed limited approval action. 

III. What is the effect of this final 

action? 

Under CAA sections 301(a) and 

110(k)(6), and EPA’s long-standing 

guidance, a limited approval results in 

approval of the entire SIP revision, even 

of those parts that are deficient and 

prevent EPA from granting a full 

approval of the SIP revision.7 Today, 

EPA is finalizing a limited approval of 

North Carolina’s December 17, 2007, 

regional haze SIP revision. This limited 

approval results in approval of North 

Carolina’s entire regional haze 

submission and all its elements. EPA is 

taking this approach because North 

Carolina’s SIP will be stronger and more 

protective of the environment with the 

implementation of those measures by 

the State and having federal approval 

and enforceability than it would 

without those measures being included 

in its SIP. 

IV. Final Action 

EPA is finalizing a limited approval of 

a revision to the North Carolina SIP 

submitted by the State of North Carolina 

on December 17, 2007, as meeting some 

of the applicable regional haze 

requirements as set forth in sections 

169A and 169B of the CAA and in 40 

CFR 51.300–308. 

V. Statutory and Executive Order 

Reviews 

A. Executive Order 12866, Regulatory 

Planning and Review 

The Office of Management and Budget 

(OMB) has exempted this regulatory 

action from Executive Order 12866, 

entitled ‘‘Regulatory Planning and 

Review.’’ 

B. Paperwork Reduction Act 

Under the Paperwork Reduction Act, 

44 U.S.C. 3501 et seq., OMB must 

approve all ‘‘collections of information’’ 

by EPA. The Act defines ‘‘collection of 

information’’ as a requirement for 

answers to ‘‘* * * identical reporting or 

recordkeeping requirements imposed on 

ten or more persons * * *’’. 44 U.S.C. 

3502(3)(A). The Paperwork Reduction 

Act does not apply to this action. 


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38190 Federal Register / Vol. 77, No. 124 / Wednesday, June 27, 2012 / Rules and Regulations 

C. Regulatory Flexibility Act (RFA) 

The RFA generally requires an agency 

to conduct a regulatory flexibility 

analysis of any rule subject to notice 

and comment rulemaking requirements 

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 not-for-profit 

enterprises, and small governmental 

jurisdictions. 

This rule will not have a significant 

impact on a substantial number of small 

entities because SIP approvals under 

section 110 and subchapter I, part D of 

the CAA do not create any new 

requirements but simply approve 

requirements that the State is already 

imposing. Therefore, because the federal 

SIP approval does not create any new 

requirements, I certify that this action 

will not have a significant economic 

impact on a substantial number of small 

entities. 

Moreover, due to the nature of the 

federal-state relationship under the 

CAA, preparation of flexibility analysis 

would constitute federal inquiry into 

the economic reasonableness of state 

action. The CAA forbids EPA to base its 

actions concerning SIPs on such 

grounds. Union Electric Co., v. EPA, 427 

U.S. 246, 255–66 (1976); 42 U.S.C. 

7410(a)(2). 

D. Unfunded Mandates Reform Act 

(UMRA) 

Under sections 202 of the UMRA of 

1995 (‘‘Unfunded Mandates Act’’), 

signed into law on March 22, 1995, EPA 

must prepare a budgetary impact 

statement to accompany any proposed 

or final rule that includes a federal 

mandate that may result in estimated 

costs to state, local, or tribal 

governments in the aggregate; or to the 

private sector, of $100 million or more. 

Under section 205, EPA must select the 

most cost-effective and least 

burdensome alternative that achieves 

the objectives of the rule and is 

consistent with statutory requirements. 

Section 203 requires EPA to establish a 

plan for informing and advising any 

small governments that may be 

significantly or uniquely impacted by 

the rule. 

EPA has determined that today’s 

action does not include a federal 

mandate that may result in estimated 

costs of $100 million or more to either 

state, local, or tribal governments in the 

aggregate, or to the private sector. This 

federal action approves pre-existing 

requirements under state or local law, 

and imposes no new requirements. 

Accordingly, no additional costs to 

state, local, or tribal governments, or to 

the private sector, result from this 

action. 

E. Executive Order 13132, Federalism 

Federalism (64 FR 43255, August 10, 

1999) revokes and replaces Executive 

Orders 12612 (Federalism) and 12875 

(Enhancing the Intergovernmental 

Partnership). Executive Order 13132 

requires EPA to develop an accountable 

process to ensure ‘‘meaningful and 

timely input by State and local officials 

in the development of regulatory 

policies that have Federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that 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.’’ Under 

Executive Order 13132, EPA may not 

issue a regulation that has Federalism 

implications, that imposes substantial 

direct compliance costs, and that is not 

required by statute, unless the federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by state and local 

governments, or EPA consults with state 

and local officials early in the process 

of developing the proposed regulation. 

EPA also may not issue a regulation that 

has Federalism implications and that 

preempts state law unless the Agency 

consults with state and local officials 

early in the process of developing the 

proposed regulation. 

This rule 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, because it 

merely approves a state rule 

implementing a federal standard, and 

does not alter the relationship or the 

distribution of power and 

responsibilities established in the CAA. 

Thus, the requirements of section 6 of 

the Executive Order do not apply to this 

rule. 

F. Executive Order 13175, Coordination 

With Indian Tribal Governments 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ This rule does not have 

tribal implications, as specified in 

Executive Order 13175. It will not have 

substantial direct effects on tribal 

governments. Thus, Executive Order 

13175 does not apply to this rule. 

G. Executive Order 13045, Protection of 

Children From Environmental Health 

Risks and Safety Risks 

Protection of Children from 

Environmental Health Risks and Safety 

Risks (62 FR 19885, April 23, 1997), 

applies to any rule that: (1) is 

determined to be ‘‘economically 

significant’’ as defined under Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

the Agency must evaluate the 

environmental health or safety effects of 

the planned rule on children, and 

explain why the planned regulation is 

preferable to other potentially effective 

and reasonably feasible alternatives 

considered by the Agency. 

This rule is not subject to Executive 

Order 13045 because it does not involve 

decisions intended to mitigate 

environmental health or safety risks. 

H. Executive Order 13211, Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not subject to Executive 

Order 13211, ‘‘Actions Concerning 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use’’ (66 

FR 28355, May 22, 2001) because it is 

not a significant regulatory action under 

Executive Order 12866. 

I. National Technology Transfer and 

Advancement Act (NTTAA) 

Section 12 of the NTTAA of 1995 

requires federal agencies to evaluate 

existing technical standards when 

developing a new regulation. To comply 

with NTTAA, EPA must consider and 

use ‘‘voluntary consensus standards’’ 

(VCS) if available and applicable when 

developing programs and policies 

unless doing so would be inconsistent 

with applicable law or otherwise 

impractical. 

EPA believes that VCS are 

inapplicable to this action. Today’s 

action does not require the public to 

perform activities conducive to the use 

of VCS. 

J. 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 


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Federal Register / Vol. 77, No. 124 / Wednesday, June 27, 2012 / Rules and Regulations 38191 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this 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). 

K. Petitions for Judicial Review 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by August 27, 2012. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this rule for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. See section 

307(b)(2). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Particulate matter, 

Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

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

Dated: June 13, 2012. 

A. Stanley Meiburg, 

Acting Regional Administrator, Region 4. 

40 CFR part 52 is amended as follows: 

PART 52—[AMENDED] 

1. The authority citation for part 52 

continues to read as follows: 

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

Subpart II—North Carolina 

■ 2. Section 52.1770(c) is amended: 

■ a. By adding a new entry to Table 1 

in paragraph (c) for ‘‘Sect .0543’’ in 

numerical order, and 

■ b. By adding a new entry to the table 

in paragraph (e) for ‘‘Regional Haze 

Plan’’ at the end of the table. 

§ 52.1770 Identification of plan. 

* * * * * 

(c) * * * 

TABLE 1—EPA-APPROVED NORTH CAROLINA REGULATIONS

State citation Title/subject State effective 

date EPA approval date Explanation 

Subchapter 2D Air Pollution Control Requirements 

*******

Section .0500 Emission Control Standards 

*******

Sect .0543 ............... Best Available Retrofit Technology ................................. 9/6/2006 6/27/2012 [Insert citation of 

publication].

* * * * * * * 

(e) * * * 

EPA-APPROVED NORTH CAROLINA NON-REGULATORY PROVISIONS

Provision State effective 

date 

EPA approval 

date Federal Register citation 

*******

Regional Haze Plan ................................................................................... 11/17/2007 6/27/2012 [Insert citation of publication]. 

[FR Doc. 2012–15468 Filed 6–26–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2009–0784; FRL–9691–9] 

Approval and Promulgation of 

Implementation Plans; State of 

Mississippi; Regional Haze State 

Implementation Plan 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is finalizing a limited 

approval of revisions to the Mississippi 

State Implementation Plan (SIP) 

submitted by the State of Mississippi 

through the Mississippi Department of 

Environmental Management (MDEQ) on 

September 22, 2008, and May 9, 2011. 

Mississippi’s SIP revisions address 

regional haze for the first 

implementation period. Specifically, 

these SIP revisions address the 

requirements of the Clean Air Act (CAA 


emcdonald on DSK67QTVN1PROD with RULES