Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Rules and Regulations 36329 

pertaining to the Commonwealth of 

Virginia’s adoption of the revised NO2

standard of 100 ppb 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, Nitrogen dioxide, Reporting 

and recordkeeping requirements. 

Dated: June 6, 2011. 

W.C. Early, 

Acting, Regional Administrator, Region III. 

40 CFR part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for 40 CFR 

part 52 continues to read as follows: 

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

Subpart VV—Virginia 

■ 2. In § 52.2420, the table in paragraph 

(c) is amended by revising the entry for 

Section 5–30–70. The table in paragraph 

(e) is amended by adding an entry for 

‘‘Documents Incorporated by Reference’’ 

after the tenth existing entry for 

‘‘Documents Incorporated by 

Reference.’’ The amendments read as 

follows: 

§ 52.2420 Identification of plan. 

* * * * * 

(c) * * * 

EPA—APPROVED VIRGINIA REGULATIONS AND STATUTES

State citation Title/subject State effective 

date EPA approval date Explanation [former SIP citation] 

*******

9 VAC 5, Chapter 30 Ambient Air Quality Standards [Part III] 

*******

5-30-70 ........................................ Oxides of nitrogen dioxide as the 

indicator.

8/18/10 6/22/11 [Insert page number where the document 

begins].

Sections A., D., and E. 

are modified. Sections 

B., C., F., and G. are 

added. 

* * * * * * * 

* * * * * (e) * * * 

Name of non-regulatory SIP revision Applicable geographic area State submittal 

date EPA approval date Additional explanation 

*******

Documents Incorporated by Reference (9 VAC 5-20-21, Section E.1.a.(1)(s)).Statewide ..................................... 3/14/11 6/22/11 [Insert page number where the document 

begins].

Added section. 

* * * * * * * 

[FR Doc. 2011–15455 Filed 6–21–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R10–OAR–2010–1072; FRL–9321–4] 

Approval and Promulgation of 

Implementation Plans; State of Idaho; 

Regional Haze State Implementation 

Plan and Interstate Transport Plan 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving portions of 

a State Implementation Plan (SIP) 

revision submitted by the State of Idaho 

on October 25, 2010, as meeting the 

requirements of Clean Air Act (CAA) 

section 110(a)(2)(D)(i)(II) as it applies to 

visibility for the 1997 8-hour ozone and 

1997 particulate matter (PM2.5) National 

Ambient Air Quality Standards 

(NAAQS). EPA is also approving 

portions of the revision as meeting 

certain requirements of the regional 

haze program, including the 

requirements for best available retrofit 

technology (BART). 

DATES: Effective Date: This final rule is 

effective July 22, 2011. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R10–OAR–2010–1072. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. Although listed in the index, some 

information is not publicly available, 

e.g., 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 

http://www.regulations.gov or in hard 

copy at the State and Tribal Air 

Programs Unit, Office of Air Waste and 

Toxics, EPA Region 10, 1200 Sixth 

Avenue, Seattle, WA, 98101. EPA 

requests that if at all possible, you 

contact the individual listed in the FOR

FURTHER INFORMATION CONTACT section to 

view the hard copy of the docket. You 


jlentini on DSK4TPTVN1PROD with RULES
36330 Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Rules and Regulations 

1Areas designated as mandatory Class I Federal 

areas consist of national parks exceeding 6000 

acres, wilderness areas and national memorial parks 

exceeding 5000 acres, and all international parks 

that were in existence on August 7, 1977. 42 U.S.C. 

7472(a). In accordance with section 169A of the 

Clean Air Act, EPA, in consultation with the 

Department of Interior, promulgated a list of 156 

areas where visibility is identified as an important 

value. 44 FR 69122 (November 30, 1979). The 

extent of a mandatory Class I area includes 

subsequent changes in boundaries, such as park 

expansions. 42 U.S.C. 7472(a). Although states and 

Tribes may designate as Class I additional areas 

which they consider to have visibility as an 

important value, the requirements of the visibility 

program set forth in section 169A of the Clean Air 

Act apply only to ‘‘mandatory Class I Federal 

areas.’’ Each mandatory Class I Federal area is the 

responsibility of a ‘‘Federal Land Manager.’’ 42 

U.S.C. 7602(i). When we use the term ‘‘Class I area’’ 

in this action, we mean a ‘‘mandatory Class I 

Federal area.’’. 

may view the hard copy of the docket 

Monday through Friday, 8 a.m. to 4 

p.m., excluding Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Steve Body, EPA Region 10, Suite 900, 

Office of Air, Waste and Toxics, 1200 

Sixth Avenue, Seattle, WA 98101. 

SUPPLEMENTARY INFORMATION: 

Definitions 

For the purpose of this document, we 

are giving meaning to certain words or 

initials as follows: 

(i) The words or initials Act, CAA, or 

Clean Air Act mean or refer to the Clean 

Air Act, unless the context indicates 

otherwise. 

(ii) The words EPA, we, us or our 

mean or refer to the United States 

Environmental Protection Agency. 

(iii) The initials SIP mean or refer to 

State Implementation Plan. 

(iv) The words Idaho and State mean 

the State of Idaho. 

Table of Contents 

I. Background Information 

II. Response to Comments 

III. Final Action 

IV. Scope of Action 

V. Statutory and Executive Orders Review 

I. Background Information 

On July 18, 1997, EPA promulgated 

new NAAQS for 8-hour ozone and for 

fine particulate matter (PM2.5). This 

action is being taken, in part, in 

response to the promulgation of the 

1997 8-hour ozone and PM2.5 NAAQS. 

Section 110(a)(1) of the CAA requires 

states to submit a SIP revision to 

address a new or revised NAAQS within 

3 years after promulgation of such 

standards, or within such shorter period 

as EPA may prescribe. Section 110(a)(2) 

lists the elements that such new SIPs 

must address, as applicable, including 

section 110(a)(2)(D)(i), which pertains to 

interstate transport of certain emissions. 

Section 110(a)(2)(D)(i) of the CAA 

requires that a SIP must contain 

adequate provisions prohibiting any 

source or other type of emissions 

activity within the state from emitting 

any air pollutant in amounts which will: 

(1) contribute significantly to 

nonattainment of the NAAQS in any 

other state; (2) interfere with 

maintenance of the NAAQS by any 

other state; (3) interfere with any other 

state’s required measures to prevent 

significant deterioration of air quality; 

or (4) interfere with any other state’s 

required measures to protect visibility. 

This action addresses the fourth prong, 

section 110(a)(2)(D)(i)(II). 

In the CAA Amendments of 1977, 

Congress established a program to 

protect and improve visibility in the 

national parks and wilderness areas. See 

CAA section 169(A). Congress amended 

the visibility provisions in the CAA in 

1990 to focus attention on the problem 

of regional haze. See CAA section 

169(B). EPA promulgated regulations in 

1999 to implement sections 169A and 

169B of the Act. These regulations 

require states to develop and implement 

plans to ensure reasonable progress 

toward improving visibility in 

mandatory Class I Federal areas1 (Class 

I areas). 64 FR 35714 (July 1, 1999); see 

also 70 FR 39104 (July 6, 2005) and 71 

FR 60612 (October 13, 2006). 

On October 25, 2010, the State of 

Idaho submitted to EPA a State 

Implementation Plan (SIP) revision 

addressing the interstate transport 

requirements for visibility for the 1997 

ozone and PM2.5 NAAQS, [see CAA 

§ 110(a)(2)(D)(i)(II)], and the 

requirements of the regional haze 

program at 40 CFR § 51.308 (Regional 

Haze SIP submittal). On January 11, 

2011, EPA published a notice in which 

the Agency proposed to approve the 

Idaho SIP revision as meeting the 

requirements of both section 

110(a)(2)(D)(i)(II) of the CAA and the 

Regional Haze requirements set forth in 

sections 169A and 169B of the CAA and 

in 40 CFR 51.300–308, with the 

exception of Chapter 11, Idaho 

Reasonable Progress Goal 

Demonstration and Chapter 12, Long 

Term Strategy. 76 FR 1579 (Notice of 

Proposed Rulemaking or NPR). For 

Idaho’s Reasonable Progress Goal 

Determination and Long-Term Strategy, 

EPA did not propose taking any action. 

II. Response to Comments 

EPA received four comments on the 

proposed action to approve certain 

elements of the Idaho Regional Haze SIP 

submittal. A comment letter was 

received from the State of Idaho’s 

Department of Environmental Quality 

(IDEQ). A comment was received from 

a private citizen. Adverse comments 

were received by two entities; The 

Amalgamated Sugar Company (TASCO) 

and the Wyoming Outdoor Council. The 

discussion below summarizes and 

responds to the comments received on 

EPA’s proposed SIP action and explains 

the basis for EPA’s final action. 

Comment from IDEQ 

Comment: IDEQ’s letter related to a 

Tier II operating permit IDEQ had 

issued to The Amalgamated Sugar 

Company (TASCO) on September 7, 

2010, that included the requirement to 

install and operate BART control 

technology and comply with the BART 

emission limitations. See the September 

7, 2010, letter from IDEQ to TASCO 

issuing the Tier II Operating Permit No. 

T2–2009–0105, that was included in the 

Idaho Regional Haze SIP submittal. The 

comment explained that on October 12, 

2011, TASCO appealed the Tier II 

permit and that IDEQ has entered into 

negotiations with TASCO to discuss 

alternative control measures that may be 

required at the TASCO Nampa facility 

in lieu of the BART conditions as 

outlined in the SIP submission. IDEQ 

and TASCO hope these negotiations 

will result in a revised Tier II permit, 

agreed to by both parties, that results in 

emissions controls that can be 

considered better than the BART 

currently in the SIP submission. 

Response: EPA acknowledges the 

notification. 

Comment from Private Citizen 

Comment: The comment supports 

Idaho’s actions to improve visibility in 

Class I areas. 

Response: EPA acknowledges the 

comment. 

Comments from TASCO 

Comment 1a: TASCO requests the 

EPA defer further action of the Regional 

Haze SIP submittal. TASCO explains 

that it is actively negotiating with IDEQ 

to resolve its challenge to IDEQ’s Tier II 

operating permit that was issued on 

September 7, 2010, imposing BART 

controls on the Riley Boiler at the 

TASCO Nampa facility. TASCO is 

hopeful that the negotiations will result 

in a revised BART determination and 

revised Tier II operating permit by May 

2, 2011. Thus, in the commenter’s view, 

final action on the TASCO portion of 

the Regional Haze SIP is premature, 

would ignore the ongoing negotiations 

between TASCO and IDEQ, and would 

cause unnecessary administrative 

burden for EPA, IDEQ, and TASCO 

because the company expects that a 

new/revised Tier II permit will be 


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Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Rules and Regulations 36331 

2At TASCO’s request EPA and IDEQ had a phone 

conversation with a TASCO representative on May 

16, 2011, followed by a letter to the EPA dated May 

25, 2011, in which TASCO reiterated its request 

that EPA postpone final action. 

negotiated, issued and submitted to 

EPA. The commenter urges EPA to 

postpone final action on the Regional 

Haze SIP submittal pending the 

outcome of ongoing negotiations 

between TASCO and IDEQ and until 

EPA undertakes a complete reevaluation 

of the affordability of BART controls.2

Response: TASCO suggests that 

instead of acting on the Regional Haze 

SIP submittal, EPA defer action until the 

ongoing negotiations between IDEQ and 

TASCO are completed and a revised 

BART determination for TASCO is 

submitted to EPA. Unfortunately, EPA 

cannot defer action on the Regional 

Haze SIP submittal. States were required 

to submit Regional Haze SIPs by 

December 17, 2007. As Idaho and a 

number of other states failed to meet 

this deadline, EPA issued a final rule 

finding that these states had failed to 

submit Regional Haze SIPs to EPA. 74 

FR 2392 (January 15, 2009). Under the 

CAA, EPA must issue a Federal 

implementation plan (FIP) within two 

years of finding that a state has failed to 

make a required submission, unless the 

state submits a SIP and EPA fully 

approves the plan before promulgating a 

FIP. CAA section 110(c)(1). In addition, 

as described above, States are required 

to submit a SIP revision to address a 

new or revised NAAQS within three 

years after promulgation of such 

standards that contains adequate 

provisions to prevent emissions from 

within the state from interfering with 

other states’ measures to protect 

visibility. Idaho failed to submit a 

complete SIP revision within 3 years of 

promulgation of the revised 1997 Ozone 

and PM2.5 NAAQS as required by 

section 110(a)(1) and meeting the 

requirements of section 110(a)(2)(D)(i). 

EPA is under a court order to take final 

action approving the Idaho Regional 

Haze SIP submittal, or to otherwise take 

action to meet the requirements of 

section 110(a)(2)(D)(i)(II) regarding 

visibility, by June 21, 2011. See 76 FR 

1581, fn 5. In addition, IDEQ submitted 

the Regional Haze SIP revision to EPA 

on October 25, 2010, and included the 

Tier II operating permit for TASCO. EPA 

is obligated to take action on that 

submittal unless or until such time as 

the State of Idaho withdraws that 

submittal and submits a SIP revision. 

TASCO’s suggestion that the Tier II 

operating permit will change as a result 

of its challenge or the ongoing 

negotiations is speculative. If and when 

a revised permit is issued sometime in 

the future, Idaho may submit it for EPA 

review and action, as appropriate. Such 

SIP revision must meet Federal 

requirements and policy on SIP 

revisions, including the Regional Haze 

rule requirement that an alternative 

BART determination must achieve 

greater reasonable progress than would 

be achieved through installation and 

operation of BART. See 40 CFR 

51.308(e)(2). TASCO’s comments 

concerning the affordability analysis are 

addressed below. 

Comment 1.b.: TACSO also requests 

that EPA postpone action on the SIP for 

a few additional reasons. First, it states 

that due to confusion and threatened 

litigation over EPA’s national inaction 

on the Regional Haze Rule, Idaho may 

be the first, or one of the first, states to 

obtain approval. Thus, in their view, 

postponement of Idaho’s plan would not 

deviate from a national level of 

inactivity. TASCO questions the 

urgency to partially approve Idaho’s 

Regional Haze SIP and suggests that 

based on the emission inventories from 

other states, Idaho should be a low 

priority. 

TASCO also requests an explanation 

for the decision to only partially 

approve the Regional Haze SIP and 

urges EPA to postpone final action on 

Idaho’s plan until other components are 

ready for EPA action. 

Finally, in TASCO’s view, 

postponement of final action is 

consistent with an Executive Order 

dated January 18, 2011 which reaffirms 

regulatory review principles. TASCO 

contends the Regional Haze SIP is out 

of step with current economic and 

political realities. Specifically the 

comment states that the appropriate 

focus for visibility improvements under 

the CAA should be emission reductions 

from significant contributors, such as 

natural fire and mobile sources. EPA’s 

proposed partial approval, specifically 

the TASCO BART determination, 

‘‘ignores significant contributors and 

over regulates the minor contribution of 

the Riley Boiler. The proposal is not 

consistent with either the substance not 

the spirit of President Obama’s EO.’’ 

Response: There is no confusion 

regarding litigation over CAA section 

110(a)(2)(D)(i)(II), the visibility prong of 

interstate transport, which is a separate 

legal action from litigation over EPA 

inaction on Regional Haze SIPs under 

Section 169(A)&(B). Idaho submitted the 

Regional Haze SIP to meet two 

provisions in the CAA—sections 110 

and 169. As explained above, EPA must 

take action to meet the requirements of 

CAA section 110(a)(2)(D)(i)(II) regarding 

visibility by June 21, 2011. EPA’s 

approval of the BART measures in the 

Idaho Regional Haze SIP submittal 

fulfills this obligation. EPA notes that 

the existence of any confusion regarding 

the timeline for EPA action on the 

Regional Haze SIPs is irrelevant to the 

question of whether the Regional Haze 

SIP submittal meets the requirements of 

the CAA or the regional haze program 

and has no impact on the statutory 

deadlines by which EPA must act. EPA 

intends to propose action on the 

remaining elements of the Idaho 

Regional Haze SIP submittal as 

expeditiously as possible, but finds no 

reason to delay action on the BART 

provisions. 

Regarding TASCO’s comment that 

this SIP action should be a low priority 

based on emission inventories from 

other states, EPA notes that BART 

obligations and the deadlines for taking 

action under the CAA apply regardless 

of the state-to-state relative emission 

inventories. Under the Regional Haze 

Rule, each state is required to address 

its contribution to visibility impairment 

in Class I areas. See e.g. 40 CFR 

51.308(d)(3). In addition, while the 

Regional Haze Rule requires states to 

identify all anthropogenic sources of 

visibility impairment in developing its 

long-term strategy, Congress placed 

special emphasis on the use of retrofit 

controls for certain sources, such as the 

TASCO facility’s Riley Boiler. IDEQ 

accordingly carefully considered the use 

of such controls at TASCO and 

determined that controls were costeffective, would improve visibility, and 

were an appropriate measure for 

assuring reasonable progress toward the 

national goal. 

The Executive Order identified by the 

commenter, EO 13563, provides that 

‘‘[o]ur regulatory system must protect 

public health, welfare, safety, and our 

environment while promoting economic 

growth, innovation, competitiveness, 

and job creation * * *. It must identify 

and use the best, most innovative, and 

least burdensome tools for achieving 

regulatory ends * * *’’ While EPA’s 

compliance with EO 13563 is not 

subject to judicial review, EPA has 

complied with the EO in this action 

approving IDEQ’s Regional Haze SIP 

submittal. First, we note that EPA’s 

Regional Haze Rules provide substantial 

flexibility to the states in meeting the 

BART requirements in the CAA while 

still ensuring that reasonable progress 

towards the national goal is made. 

Second, TASCO’s argument that EPA 

has ignored the contribution of other 

sources to visibility impairment in 

approving IDEQ’s BART determination 

misrepresents EPA’s role in evaluating a 

state’s BART determination. The CAA 

provides no basis for EPA to disapprove 


jlentini on DSK4TPTVN1PROD with RULES
36332 Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Rules and Regulations 

a BART determination as overly 

stringent because a state has ignored 

other sources of impairment in its SIP. 

Comment 2: On September 7, 2010, 

IDEQ issued a Tier II operating permit 

to TASCO that imposed both SO2 and 

NOx BART controls on the Riley Boiler 

at the TASCO Nampa facility and on 

October 12, 2010, TASCO filed a 

contested petition with the IDEQ 

challenging the reasonableness of the 

SO2 and NOx BART controls selected. 

In its comments to EPA, TASCO 

summarized the basis for its challenge at 

the state level to the Tier II operating 

permits. 

Comment 2a: IDEQ failed to consider 

the 5-factors required by the CAA in 

choosing BART for SO2 and NOx 

emissions including the degree of 

improvement in visibility from the use 

such technology and the cost of 

compliance. 

Response: The Riley Boiler at TASCO, 

Nampa, is a BART-eligible source 

subject-to-BART. Contrary to the 

commenter’s claim, and as fully 

described in the Federal Register notice, 

IDEQ did consider the 5-factors in its 

BART determination for particulate 

matter, SO2 and NOx. See 76 FR 1586– 

1589. After determining the available 

control technologies, the five factors are: 

1) Cost of compliance; 2) Energy and 

non-air environmental impacts; 3) any 

pollution control equipment in use at 

the source; 4) the remaining useful life 

of the facility; 5) the degree of 

improvement in visibility which may 

reasonably be anticipated to result from 

the use of such technology. 

Comment 2b: IDEQ solely relied on 

conservative modeling results and 

excluded other relevant evidence 

resulting in an unreasonable BART 

selection for TASCO’s Riley Boiler. 

Response: While its not clear if 

TASCO is suggesting that EPA should 

disapprove IDEQ’s BART detemination 

on these grounds, we disagree that IDEQ 

relied solely on conservative modeling 

results. Air quality dispersion modeling 

was used by Idaho for two purposes: to 

identify sources subject to BART and to 

estimate visibility improvement 

resulting from implementation of 

technically feasible BART control 

options. In the context of this comment, 

TASCO does not appear to contest 

IDEQ’s identification of sources subject 

to BART, but rather the projection of 

improvement in visibility from 

implementation of BART. 

To provide a consistent determination 

of baseline to future conditions of 

source specific visibility impacts, Idaho 

correctly used dispersion modeling. See 

76 FR 1585 and EPA’s evaluation of 

WRAP modeling in EPA’s WRAP TSD, 

Section 6.A. The model Idaho used is 

consistent with BART Guidelines 

Appendix Y, (III)(3) which recommends 

use of modeling for individual source 

attribution with the CALPUFF model. 

See Appendix F, BART Modeling 

Protocol of the SIP submittal, (p. 30) for 

the application of the CALPUFF model. 

EPA approved the BART-subject 

Modeling Protocol that was used by 

Idaho, Oregon and Washington in their 

determinations of which BART eligible 

sources are subject to BART. EPA’s 

evaluation of BART modeling can be 

found in the WRAP TSD, Section 7 (p. 

51) and Appendix F of the Idaho 

Regional Haze SIP submittal, (p. F–30). 

Comment 2c: Evidence overlooked by 

IDEQ to support a more reasonable 

outcome for TASCO BART: The Riley 

Boiler is located over 100 miles and in 

the opposite prevailing west to east 

wind direction from Hells Canyon, 

Eagle Cap, and Strawberry Mountain 

Wilderness Areas. 

Response: Prevailing winds and 

distance do not necessarily determine 

the maximum visibility impact of a 

specific source. Many meteorological 

factors need to be considered in 

determining visibility impact, thus the 

use of dispersion modeling for 

determining impact. See 40 CFR 51, 

Appendix Y (BART Guidelines, Section 

III and Section IV.D, 5. 

Dispersion modeling demonstrates 

maximum impact of TASCO Nampa 

emissions are in the Eagle Cap 

Wilderness Area. Commenter has not 

provided any additional information or 

evidence to refute that determination. 

Comment 2d: The Riley Boiler is a 

small industrial boiler not subject to the 

mandatory approach of Appendix Y 

BART Guidelines. 

Response: The commenter is correct 

that IDEQ was not required to follow the 

EPA BART Guidelines at 40 CFR part 

51, Appendix Y in making its BART 

determination. However, as explained 

in the BART Guidelines, the Guidelines 

establish an approach to implementing 

the BART requirements in the Regional 

Haze Rule, and that EPA believes the 

procedures in the guidelines should be 

useful to the States in all BART 

determinations. 

Comment 2e: The Riley Boiler is the 

only sugar beet processing factory 

subject to BART. 

Response: Whether or not the Riley 

Boiler is the only U.S. sugar beet 

processing factory subject-to-BART is 

not relevant to the question of whether 

IDEQ reasonably concluded that the 

boiler met the definition of a BARTeligible source and that the boiler could 

reasonably be anticipated to cause or 

contribute to any visibility impairment 

at a Class I area. Fossil-fuel boilers of 

more than 250 MBtu/hr heat input are 

potentially subject to BART, regardless 

of the type of industrial facility at which 

they are located. As explained in the 

notice of proposed rulemaking, IDEQ 

followed the BART evaluation process 

to identify the BART-eligible sources 

within the state boundaries, and 

determined, based on its modeled 

impacts, that TASCO could be 

reasonably anticipated to contribute to 

visibility impairment at the Eagle Cap 

Wilderness Area. 76 FR 1586. 

Comment 2f: TASCO states that the 

overall contribution of Idaho stationary 

sources to visibility impairment from 

SO2 and NOx is small. Most impairment 

in Idaho Class I areas originates from 

outside the State. The commenter also 

notes that the Riley Boiler accounts for 

only a very small fraction of SO2 and 

NOx emissions in Idaho. 

Response: By definition, regional haze 

means visibility impairment that is 

caused by the emissions of air 

pollutants from numerous sources 

located over a wide geographic area. 40 

CFR 51.301. As a result, to make 

reasonable progress towards the 

national goal, states may be required to 

control emissions from sources that 

account individually for only a small 

fraction of the total emissions 

contributing to visibility impairment. As 

required by the CAA and EPA’s 

regulations, the state must undertake a 

BART determination for certain sources 

such as TASCO that are reasonably 

anticipated to cause or contribute to any 

visibility impairment. The percent 

contribution of a specific BART eligible 

source to total Statewide or region-wide 

emissions is not a factor in determining 

whether that source can be considered 

to contribute to visibility impairment. 

See 40 CFR 51.308(e). To assess whether 

the impact of a single source is 

sufficient to cause or contribute to 

visibility impairment at any Class I area, 

Idaho selected a contribution threshold 

of 0.5dv, the upper bound for such a 

threshold. See 70 FR 39104, 39161 (July 

6, 2005). Given this, IDEQ determined 

that TASCO Nampa exceeded the 0.5dv 

threshold and therefore correctly 

determined that the facility is subject-toBART. The Riley Boiler’s relative 

percent contribution of SO2 and NOx 

emissions in Idaho is not a factor in 

determining whether it is exempt from 

meeting the BART obligations of 40 CFR 

51.308(e). 

Comment 2g: By relying on 

conservative modeling results, IDEQ 

failed to adjust its conclusions in light 

of TASCO’s source apportionment 

modeling that suggests the IDEQ 


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Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Rules and Regulations 36333 

modeling greatly overestimates visibility 

impacts of the Riley boiler. 

Response: TASCO did not provide the 

TASCO source apportionment modeling 

results referred to in its comments. 

Thus, EPA cannot evaluate the 

credibility of the TASCO modeling, nor 

the significance of results. 

However, in EPA’s view, Idaho 

appropriately used CALPUFF modeling, 

as recommended by the BART 

Guidelines (Appendix Y of the Regional 

Haze Rule) to determine visibility 

impacts from TASCO. The modeling 

was conducted in accord with the BART 

Modeling Protocol, ‘‘Modeling Protocol 

for Washington, Oregon, and Idaho: 

Protocol for the Application of the 

CALPUFF Modeling System Pursuant to 

the Best Available Retrofit Technology 

(BART) Regulation.’’ This protocol was 

developed by Region 10 states and EPA 

Region 10 to provide consistency in 

decision making across Idaho, Oregon, 

and Washington in assessing the 

absolute and relative contribution of 

sources of visibility impairment. By 

providing for consistent estimates, the 

use of CALPUFF and specific modeling 

protocols ensures that sources are 

assessed equitably across a region. See 

76 FR 1586. See also response to 

comment 2.b. above. 

Comment 2.h: IDEQ failed to consider 

the shutdown of three coal-fired pulp 

dryers at the Nampa facility in 2007. 

Response: Contrary to the comment, 

IDEQ did consider TASCO’s shutdown 

and replacement of three coal-fired pulp 

dryers in the Regional Haze SIP 

submittal. However, the shut-down of 

other units at a facility is not a 

consideration to be taken into account 

in a BART determination. The BART 

determination for the Riley Boiler must 

be made independent of other control 

activities at the TASCO Nampa facility 

or other TASCO facilities located in 

Idaho. 

Idaho did account for the shutdown of 

the pulp dryers in their assessment of 

baseline conditions at the Eagle Cap 

Wilderness Area. Idaho used the 

CALPUFF model results and applied 

scenarios with both the pulp dryers 

operating and not operating. See Table 

10–11 of the SIP Submittal which 

provides the visibility impact of three 

scenarios: baseline with pulp dryers 

operating, baseline with pulp dryers 

shutdown, and BART implementation 

for NOX and SO2 on the Riley Boiler. 

Shutdown of the pulp dryers resulted 

in a reduction in days over 0.5 dv over 

a three year period from 127 days to 97 

days. Implementation of NOX and SO2

BART reduced the number of days over 

0.5 dv to 3 days. Implementation of 

BART results in a significantly greater 

improvement in visibility than just the 

shutdown of the pulp dryers. 

Comment 2.i: IDEQ failed to consider 

the additional emission reductions from 

TASCO’s Nyssa, Oregon, shutdown in 

2005. 

Response: TASCO Nyssa, Oregon 

facility is not located in Idaho and not 

subject to Idaho’s jurisdiction. Oregon 

has recognized the emission reductions 

associated with the shutdown of the 

TASCO Nyssa facility in their Regional 

Haze SIP. See Oregon Regional Haze 

SIP, Chapter 10. 

Comment 2.j. The comment states that 

the costs of compliance are significant 

and could adversely affect operations at 

the Nampa facility. Installation of BART 

will require $15 million capital and 

annual operating expenses of over 

$644,000. 

Response: In the TASCO BART 

analysis in the SIP submittal, Appendix 

F, the capital cost and annual costs for 

SO2 and NOX level BART control were 

presented as follows from Table 31 and 

Table 35 of Appendix F and TASCO 

BART Determination, Appendix D: 

Capital cost Annual costs Cost effectiveness 

Dry FGD for SO2 ....................................................................................................... $12,970,000 $2,521,000 $2,163/ton 

LNB/OFA for NOX ...................................................................................................... 4,875,000 860,000 1270/ton 

Total BART Costs ............................................................................................... 17,845,000 3,381,000 ..............................

Idaho determined the cost 

effectiveness of all technically feasible 

BART control options for SO2 and NOX

based on these capital investment and 

annual operating expenses. See Table 31 

and Table 35 of Appendix F, TASCO 

BART determination, of the SIP 

submittal. The final BART 

determination of Low NOX Burners with 

Over Fire Air (LNB/OFA) for NOX at a 

cost of $1270/ton is reasonable when 

compared to other BART determinations 

across the country. The final BART 

determination of Dry Flue Gas Desulfurization (Dry FGD) for SO2 with a 

cost of $2163/ton is also reasonable. 

The cost estimates in the SIP 

submittal differ (are higher) from the 

cost estimates provided in TASCO’s 

comment letter. As explained in more 

detail below, while not required to do 

so, at IDEQ’s request, EPA conducted an 

evaluation of whether TASCO could 

afford the BART controls and 

determined that it could afford the 

controls and remain a viable entity. 

EPA’s evaluation of whether TASCO 

could afford the BART level control 

technology was based on the higher cost 

numbers in the SIP submittal. The lower 

costs in the TASCO comment letter 

would suggest TASCO could more 

readily afford the BART controls. 

Comment 2.k. The degree of visibility 

improvement anticipated from BART is 

not measurable and does not justify the 

significant cost. 

Response: We disagree that the 

visibility improvement anticipated from 

the use of BART at TASCO is not 

measurable. As explained in response to 

Comment 2.g. above, Idaho used the 

recommended dispersion model, 

CALPUFF, with a modeling protocol 

that was developed by EPA, Region 10 

and the States of Idaho, Oregon and 

Washington to determine the 

improvements in visibility from the 

installation and operation of BART 

control technology. That model 

demonstrates significant improvement 

in visibility in the Eagle Cap Wilderness 

Area and other Class I areas as a result 

of BART controls on the TASCO Nampa 

facility. Implementation of Dry FGD for 

SO2 control will reduce the number of 

days with impairment greater than 0.5 

dv in the Eagle Cap Wilderness Area 

from 97 to 51 days over a 3 year period 

(with the pulp dryers shutdown). 

Implementation of LNB/OFA for NOX

control will reduce the number of days 

with impairment in the Eagle Cap 

Wilderness Area from 97 to 56 days over 

a 3 year period (with the pulp dryers 

shutdown). See Table 32 and Table 37, 

Appendix F of the Idaho Regional Haze 

SIP submittal and 76 FR 1585. 

Combined SO2 and NOX BART control 

will reduce the number of days over a 

0.5 dv from 97 to 3 days over a 3 year 

period (with the pulp dryers shutdown). 

See Table 38 of Appendix F for the 

Idaho Regional Haze SIP submittal. As 

explained in response to Comment 2.j. 

above regarding costs of compliance, the 

cost associated with installation and 

operation of BART at TASCO Nampa, 

are not excessive and are comparable to 

the costs for other BART determinations 

across the country. 


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3The BART Guidelines specifically recognize that 

an affordability review must preserve the 

confidential nature of sensitive business 

information. 70 FR 39171. 

Comment 3: TASCO comments that 

IDEQ’s approach to the BART 

determination for the Monsanto/P4 

facility confirms the flexibility, 

discretion and streamlining that states 

are afforded in the BART process. The 

comment points out that the BARTsubject kiln at the Monsanto/P4 facility 

is a significantly larger emission source 

than TASCO’s Riley Boiler and has 

greater visibility impacts, but that IDEQ 

determined and EPA proposed to 

approve a BART determination for 

Monsanto/P4 that is less rigorous and 

costly than TASCO’s. The comment 

further states that the BART 

determination that EPA proposed to 

approve for Monsanto/P4 allows a 

significant increase in potentially 

visibility impairing NOX emissions 

while EPA also proposed to approve a 

BART determination for TASCO that 

reduces emissions overall. The 

comment also contrasted the visibility 

improvement days predicted to result 

from the BART controls at TASCO 

Nampa facility versus the less number 

of visibility improvement days 

predicted to result from the required 

emission controls at Monsanto/P4 

facility. 

Response: EPA does not view 

TASCO’s comment as supporting more 

stringent regulation of Monsanto/P4, but 

rather as presenting an argument that it 

should not be required to install BART 

controls that achieve tighter limits or 

greater improvements in visibility than 

other BART facilities in Idaho. EPA 

disagrees that IDEQ should impose 

BART controls at TASCO based on the 

results of its BART determination at 

another facility. A BART determination 

is made on a case-by-case basis, which 

by definition is based on facilityspecific considerations. 

EPA disagrees that IDEQ provided 

flexibility to Monsanto/P4 in the BART 

determination for the Rotary Kiln that 

was not provided TASCO. Due to the 

nature of the process at Monsanto/P4 

(i.e. limited temperature range) and 

existing control technology for SO2 and 

PM, no technically feasible control 

technology is available. Thus, BART for 

the Rotary Kiln is ‘no additional control’ 

and no emission limitations were 

established in the Idaho issued 

operating permit. In contrast, the 

TASCO Riley Boiler is a traditional coalfired industrial boiler and technically 

feasible control options exist and are 

cost-effective. 

EPA does not understand TASCO’s 

comment that there would be the 

potential for a 2198 t/yr increase in NOX

emissions from the Rotary Kiln based on 

the Monsanto/P4 BART determination. 

Since no additional control was 

determined to be BART, there is no 

potential to increase emissions since the 

existing emission limitations and design 

parameters at the facility will limit the 

production of sintered phosphate ore 

and limit NOX emissions to these 

production levels. 

4. Comment: TASCO stated that EPA’s 

review of the costs of compliance and 

affordability of BART controls for the 

Riley Boiler was flawed: 

Comment 4.a. TASCO comments that 

‘‘EPA concluded that since the company 

could fund the significant expense, the 

selected BART controls were affordable 

and indicates that because the EPA 

focused on the company’s ‘‘financial 

status and health,’’ as well as whether 

the company could afford the controls 

and ‘‘remain viable’’, EPA applied an 

inappropriate and arbitrary standard of 

review under EPA’s BART regulations 

and guidance. TASCO also states that 

‘‘EPA observed in its analysis, for 

example, that TASCO failed to be 

proactive and set aside funding for 

BART. EPA commented that TASCO 

should have been aware that ‘‘a decision 

not to proactively address BART costs 

prior to the issuance of a permit could 

make funding the BART related costs 

difficult.’’ TASCO also commented that 

EPA placed ‘substantial weight’ on the 

statements of TASCO’s auditors that 

EPA’s interpretation misconstrued the 

Auditor’s report and ‘‘EPA conveniently 

relied upon the auditor’s silence 

regarding the BART issues to support 

their flawed conclusion.’’ 

Response: The EPA BART guidelines, 

specifically allow, but do not require, 

affordability to be considered when 

determining BART. 70 FR 3917. The 

BART Guidelines indicate that there 

may be unusual circumstances that 

justify consideration of the plant and 

economic effects of requiring the use of 

a given control technology. The 

Guidelines suggest that economic effects 

include the effect on product prices, 

market shares and profitability of the 

source and that where there are special 

circumstances that are determined to 

affect plant operations, conditions of the 

plant and economic impacts of requiring 

controls may be considered. Id. The 

guidelines do not require that a specific 

method be used to conduct an 

affordability analysis nor do they 

specify a specific standard of review. 

Thus, when making a BART 

determination the State may take into 

account the economic effects of 

requiring a particular control technology 

and may consider any resulting 

economic effects that are determined to 

have a severe impact on the plant’s or 

company’s operations. In this case, 

TASCO indicated to IDEQ that 

affordability was a critical element in 

the BART determination and IDEQ 

subsequently requested EPA to conduct 

an affordability analysis. 

After considering a variety of factors, 

EPA determined that TASCO could 

afford to fund the BART controls and 

explained its reasoning in a separate 

report that was provided to IDEQ. See 

Executive Summary (Exec. Sum.) of the 

Affordability Analysis of the 

Amalgamated Sugar Company LLC’s 

Affordability Claim with Respect to the 

Best Available Retrofit Technology 

(BART) for the Riley Boiler at the 

NAMPA, Idaho facility, February 12, 

2010. (Affordability Analysis) (The 

Executive Summary, included in Docket 

for this rulemaking, is available to the 

public but the Affordability Analysis 

itself contains information claimed as 

Confidential Business Information and 

is not available for public review.) 3

Regarding TASCO’s concerns about 

EPA’s statement that TASCO should 

have been aware that ‘‘a decision not to 

proactively address BART costs prior to 

the issuance of a permit could make 

funding the BART related costs 

difficult’’, TASCO appears to have taken 

EPA’s statements out of context. The 

discussion in EPA’s Affordability 

Analysis about how TASCO appears to 

have handled its finances as it relates to 

any prospective funding of BART was 

historical in context. EPA is aware that 

TASCO had no financial or legal 

obligation to fund the BART costs prior 

to issuance of a permit and/or SIP by 

IDEQ, or a FIP by EPA, as indicated in 

the Executive Summary (See 

Affordability Analysis, p.2). Since this 

issue was historical in context, it 

provided background for, but did not 

form a basis to determining whether 

TASCO could afford paying for BART. 

TASCO is correct in stating ‘‘EPA 

placed ‘substantial weight’ on the 

statements of TASCO’s auditors.’’ 

(Affordability Analysis, pp. 37–38). As 

explained in the Affordability Analysis, 

EPA recognized that the auditor should 

have considerable knowledge of 

TASCO’s operations; TASCO, Snake 

River Sugar Company (SRSC) and 

grower’s relationships; external 

conditions that could impact TASCO; 

BART cost estimates and TASCO’s 

ability to continue as a going concern, 

and felt that the auditor would be well 

informed about the companies’ financial 

condition. Affordability Analysis pp. 

32–28. However, as is evident 

throughout the Affordability Analysis, 


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the auditor’s statements are but one 

piece of the information EPA considered 

in its affordability analysis. See 

Affordability Analysis Exec. Sum. P.2; 

and Part II. 

Furthermore, a reading of Part 2, 

Section F in the Affordability Analysis 

in its entirety demonstrates that EPA 

did not rely on the auditor’s silence 

regarding the specific BART costs to 

support the conclusion that TASCO 

could afford the BART controls, but 

rather identified specific audit related 

issues that in the first instance could be 

relevant in determining whether TASCO 

could, or could not afford the BART 

related costs. These audit related issues 

included: the entity continuing as a 

going concern; subsequent events as 

they relate to an audit; and the type of 

opinion (and its contents) expressed by 

the auditor. (Affordability Analysis, pp. 

35–37) The Affordability Analysis 

demonstrates that EPA was cognizant of 

the possible implications regarding 

whether certain issues were, or were not 

explicitly addressed by the auditor in 

the company’s audited financial 

statements. As the Affordability 

Analysis explains, ‘‘In addition, even 

where the audited financial statements 

and auditor’s report do not provide 

explicit confirmation of the entity’s 

claims, understanding why these issues 

are absent from the auditor’s report and 

financial statements can also provide 

important insight with respect to 

analyzing the entity’s claims.’’ 

(Affordability Analysis p.32) 

Comment 4.b. TASCO comments that 

EPA ignored information from TASCO. 

More specifically, TASCO states ‘‘The 

effects that this expenditure would have 

on ‘profitability’, ‘market share’, ‘plant 

operations’ and position relative to 

‘competing plants’ are clearly 

fundamental to the evaluation. EPA 

ignored information from TASCO on the 

unusual circumstances within the sugar 

beet industry and the effects on the 

Nampa plant operations and costs, 

including its ability to compete in the 

U.S. sugar market.’’ TASCO further 

states that to the extent TASCO’s 

circumstances were considered, EPA’s 

analysis considered the overall 

economics of TASCO, the company and 

its related entities, not the conditions at 

the Nampa facility or the economic 

effects of requiring controls there. The 

direct effects on TASCO’s Nampa plant 

operations were underestimated or 

ignored by EPA. TASCO also comments 

that EPA dismissed the localized effects 

on the specific plant operations at 

Nampa and instead focused on an 

assessment of the TASCO business 

structure. 

In commenter’s view, EPA’s notion of 

spreading cost throughout the Idaho 

sugar beet farmers is flawed and defies 

the realities of the sugar beet industry 

and TASCO’s operations and 

underestimates the extent of the adverse 

impacts [of the BART determination]. 

TASCO states that reduced payments to 

growers in order to fund BART controls 

at Nampa will result in decreased 

acreage planted in sugar beets 

throughout Idaho. EPA unrealistically 

assumed that growers will continue to 

plant sugar beets, and ignored the 

declining trend in acreage planted in 

sugar beets.’’ 

Referring to EPA’s affordability 

analysis, TASCO commented that EPA 

failed to consider whether competing 

plants in the same industry are required 

to install BART controls and asserts that 

they know of no other plant in the sugar 

industry in the US that is required to 

install BART control and ignores 

information from TASCO about the 

uniqueness of imposing BART on a 

small industrial boiler relative to 

competing plants in the sugar beet 

industry. 

Finally, TASCO described the closure 

of TASCO’s Nyssa factory ‘‘as evidence 

of the vulnerability and actual impact of 

plant operations from diminished sugar 

beet acreage. TASCO also highlighted 

the 31% decline in sugar beet harvest 

between 2007 and 2008 and EPA 

downplayed these plant specific 

impacts, and emphasized other 

information to conclude that TASCO, 

the company, is economically stable.’’ 

Response: In determining whether 

TASCO could afford the BART level 

controls, EPA considered a variety of 

information, including but not limited 

to information provided by TASCO. As 

explained in the Executive Summary, 

the analysis considered a number of 

factors including the estimated capital 

and operation and maintenance costs, 

the estimated BART compliance date, 

TASCO’s ability to continue as a viable 

company, the business/financial 

relationship between TASCO and the 

Snake River Sugar Company (SRSC) and 

other factors. The analysis specifically 

included information provided by 

TASCO. (Exec. Sum. p. 2) 

EPA encouraged TASCO to provide 

any additional substantive information 

to substantiate its claims regarding 

affordability. However, TASCO never 

provided specific documentation or 

information that substantively 

demonstrated how the BART costs 

would adversely impact the Nampa 

facility specifically or that substantively 

supported their affordability claim. For 

example, the company failed to provide 

information regarding the minimum 

annual input of sugar beets needed for 

each facility or how BART related costs 

would specifically impact the number of 

growers. The Analysis explained that 

‘‘based on the available information, it 

appeared that TASCO’s conclusion that 

less growers necessarily equals less 

revenue is not supported.’’ Affordability 

Analysis p. 25–26. The comments also 

failed to provide substantiated 

information regarding these items. 

Additionally, as mentioned in the 

Affordability Analysis, when making its 

initial affordability claim TASCO stated 

that ‘‘[a] very large consideration of this 

[BART determination] analysis is the 

ongoing viability of the Nampa facility 

and TASCO as a whole.’’ (Affordability 

Analysis p. 15) Thus, TASCO itself 

recognized the economic status of the 

company as a whole was relevant. 

TASCO’s comment also expressed 

concern with EPA’s observation that 

TASCO could spread the cost of 

controls among sugar beet growers 

throughout Idaho. The comment stated 

that EPA unrealistically assumed that 

growers will continue to plant sugar 

beets, and ignored the declining trend in 

acreage planted in sugar beets. However 

the comment fails to substantiate its 

claims that reduced payments to 

growers would necessarily result in 

decreased acreage planted in sugar beets 

in Idaho or to refute EPA’s assumptions. 

The Affordability Analysis indicated 

EPA’s perspective on this issue and 

explained that a sugar beet grower faces 

a number of choices in deciding 

whether or not to grow sugar beets. EPA 

considered how charging the capital 

cost for BART controls to the growers 

could affect their decision to continue 

growing sugar beets. But, as explained, 

EPA cannot make any determination as 

to whether any capital cost charged to 

a grower will determine whether that 

grower decides not to grow sugar beets 

(e.g., move from sugar beets to an 

alternative crop). EPA also refers to the 

Patterson study (2009) which compared 

sugar beets, at different price and yield 

levels, to alternative crops. Affordability 

Analysis, p. 27. Furthermore, the 

analysis also recognized that an 

additional factor a grower must take into 

consideration in deciding not to grow 

sugar beets is that ‘‘member grower who 

decides not to grow, i.e., to withdraw 

from the Cooperative (SRSC), would 

face a significant monetary charge from 

SRSC.’’ Id. Another implication is that 

the grower has crop alternatives though 

these other crops may not provide a 

long-term solution. Id. As part of its 

review EPA explained that ‘‘An analysis 

of the economics of growing sugar beets 

in southern Idaho, released in January 


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36336 Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Rules and Regulations 

2009, provides important insight into 

recent sugar beet prices paid to growers: 

Sugar beet prices in recent years have been 

relatively stagnant, while input costs have 

increased. Sugar beet prices over the past ten 

years averaged approximately $39.60 per ton, 

ranging from a high of just over $44 to a low 

of just over $36 according to data from the 

USDA. A similar situation also existed for 

most other commodities grown in southern 

Idaho, with no crop having a consistent 

economic advantage. But when grain and 

forage prices spiked to unprecedented levels 

in 2007, the equilibrium was eliminated and 

growers saw an opportunity to capitalize on 

the high returns that these crops offered. 

Crops that were often viewed as money 

losing rotation crops by potato and sugar beet 

growers had become the most profitable crop 

alternatives available to growers. But high 

grain prices were short-lived with grain 

prices declining rapidly after the 2008 

harvest. Affordability Analysis p. 22–23. 

Regarding TASCO’s comment about 

the closure of the TASCO Nyssa, Oregon 

plant, in conducting the Affordability 

Analysis EPA considered and weighed 

all information it had available in 

coming to its conclusion. If it appears 

that EPA downplayed certain impacts, it 

is because there was additional 

substantive information as summarized 

above and described throughout its 

analysis that provided the basis for 

EPA’s affordability conclusion, and 

TASCO did not provide substantive 

information to support its assertions. 

For example, with respect to TASCO’s 

comment regarding the closing of the 

Nyssa factory: TASCO stated that ‘‘the 

economic benefit to the grower-owned 

Cooperative of running three factories 

compared to four is significant and 

cannot be ignored.’’ (Affordability 

Analysis p. 27.) TASCO did not provide 

plant specific substantive information 

that would enable EPA to validate 

TASCO’s stated concerns about BART 

impacts to the Nampa factory and the 

other two factories, and to the growers, 

e.g., plant capacities, plant operating 

margins, etc. 

Comment 4.c.: TASCO commented 

that the estimated cost of compliance 

will exceed $75,000 per grower that 

supplies sugar beets to the Nampa 

factory, based upon an estimated capital 

cost of $15,690,000. TASCO stated that 

this amount exceeds the estimated 

annual profit per grower which is 

conservatively $65,400. 

Response: There are several parts to 

TASCO’s comment. First, TASCO 

indicates that the $75,000 BART related 

cost per grower is charged to the Nampa 

growers as a one-time charge. However, 

when as part of its analysis EPA 

calculated BART capital costs to the 

growers (Nampa only growers, and to all 

growers), EPA amortized these costs 

over two different time periods based on 

information provided by TASCO. See 

Affordability Analysis p. 26; Table 6, p. 

29; p. 36. Second, TASCO’s most recent 

capital cost estimate ($15,690,000) is 

$2.11 million less than the capital cost 

EPA used for the Affordability Analysis 

($17.8 million) which was based on 

TASCO’s BART Analysis. See Regional 

Haze SIP submission, Appendix F, 

Table 31 and Table 35. Furthermore, the 

number of growers for the Nampa 

factory and in total—(see TASCO 

comments, footnote 8) are greater than 

those used in the Affordability Analysis. 

See TASCO comment footnote 8 

compared to Affordability Analysis 

Table 6, p. 29. Mathematically this 

would indicate that any new 

calculations made using this latest 

information would mean lower BART 

related charges passed on to each 

grower. Third, as explained in EPA’s 

analysis, allocating the BART capital 

costs only to the Nampa factory growers 

and not to all the growers is a business 

decision made by TASCO. Affordability 

Analysis p. 26. Using the TASCO figures 

provided in the comment, calculated for 

the two amortization periods of six 

years or nine years, the amortized BART 

capital cost to all growers would 

amount to less than $0.45 per ton of 

sugar beets or less than $0.30 per ton of 

sugar beets, respectively, and if the cost 

was the allocated only to the Nampa 

growers it would be approximately 

$1.75 and $1.17 respectively—amounts 

less than the figures indicated in EPA’s 

original analysis. See Affordability 

Analysis Table 6. 

Comment 4.d: EPA failed to consider 

whether competing plants in the same 

industry are required to install BART 

controls and asserts that they know of 

no other plant in the sugar industry that 

is required to install BART controls and 

ignores information from TASCO about 

the uniqueness of imposing BART on a 

small industrial boiler relative to 

competing plants in the sugar beet 

industry. 

Response: The BART Guidelines 

provide that an affordability analysis 

may consider whether other competing 

plants in the same industry have been 

required to install BART controls. 70 FR 

39171. However, in this instance EPA’s 

analysis determined that regardless of 

the number of other facilities in this 

industry subject to BART, the cost for 

TASCO to implement the controls 

determined to be BART are affordable 

and would not significantly impact its 

continued economic viability. 

Additionally, as explained above, 

TASCO did not provide or substantiate 

its claims to demonstrate that it would 

operate at a competitive disadvantage 

and thus, EPA was not able to determine 

the relative competiveness between 

TASCO and other sugar beet processors. 

Comment 5: TASCO’s comment letter 

to EPA included statements regarding 

the additional information it has 

outlined for IDEQ in the negotiations 

with the State to resolve the Tier II 

operating permit challenge. 

Response: This comment relates to the 

pending negotiations between TASCO 

and the State. At this point in time EPA 

does not know how IDEQ will evaluate 

or use the additional information 

provided to it. If the State revises the 

TASCO operating permit and submits it 

to EPA, at that time EPA will evaluate 

IDEQ’s decision and the information 

upon which it is based. 

Wyoming Outdoor Council Comments 

Comment 1: The commenter requests 

that a BART determination be 

conducted and BART emission 

limitations be imposed for two 

additional sources in Idaho: Nu West/ 

Agrium facility (Nu West) in Soda 

Springs and the J.R. Simplot Don Plant 

(J.R. Simplot) in Pocatello. The 

commenter asserts that given that the 

Nu West and J.R. Simplot plants are 

directly upwind and in close proximity 

to Wyoming Class I areas, it seems clear 

they should merit special attention 

through a requirement for the 

installation of BART. The data 

developed by the State of Wyoming for 

its draft Regional Haze SIP also make it 

clear that Idaho sources of air pollution 

are one of the most significant 

contributors to visibility impairing haze 

in Wyoming Class I areas. The 

commenter also suggests the 0.5 dv 

impact threshold used to determine 

whether a BART eligible source is 

subject to BART, was determined for 

only Class I areas located in Idaho. The 

comment then suggests concern that all 

seven Wyoming Class I areas, and 

especially the Bridger and Fitzpatrick 

Wilderness Areas, are directly 

downwind of these plants (Nu West and 

J.R. Simplot), and in quite close 

proximity to them. Thus, absent 

empirical data to the contrary, there 

should be no finding that the J.R. 

Simplot and Nu West plants are not 

significantly impacting Wyoming Class I 

areas. 

Response: In determining which 

BART eligible sources would be subject 

to BART, Idaho considered all Class I 

areas within a 300 km radius of the 

source, including Class I areas outside 

the State boundary. Air quality 

dispersion modeling is the preferred 

technique to determine a single source’s 

impact on any Class I area. See BART 

Guidelines, Section I.A. As discussed 


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4 ‘‘Indian country’’ is defined under 18 U.S.C. 

1151 as: (1) All land within the limits of any Indian 

reservation under the jurisdiction of the United 

States Government, notwithstanding the issuance of 

any patent, and including rights-of-way running 

through the reservation, (2) all dependent Indian 

communities within the borders of the United 

States, whether within the original or subsequently 

acquired territory thereof, and whether within or 

without the limits of a State, and (3) all Indian 

allotments, the Indian titles to which have not been 

extinguished, including rights-of-way running 

through the same. Under this definition, EPA treats 

as reservations trust lands validly set aside for the 

use of a Tribe even if the trust lands have not been 

formally designated as a reservation. In Idaho, 

Indian country includes, but is not limited to, the 

Coeur d’Alene Reservation, the Duck Valley 

Reservation, the Reservation of the Kootenai Tribe, 

the Fort Hall Indian Reservation, and the Nez Perce 

Reservation as described in the 1863 Nez Perce 

Treaty. 

above, the modeling completed by Idaho 

demonstrates that BART-eligible sources 

located in Idaho, other than those 

identified in the SIP submittal as 

exceeding the BART contribution 

threshold, do not significantly impact 

Class I areas within a 300 km radius of 

the source, including Class I areas in 

Wyoming and Montana. Furthermore, 

IDEQ consulted with Wyoming 

(Wyoming Department of 

Environmental Quality) and other 

neighboring states regarding its 

emission reduction contribution. This 

consultation included the review of 

major contributing sources of air 

pollution, interstate transport of 

emissions, major emission sources 

believed to be contributing to visibility 

impairment, and whether any mitigation 

measures were needed. See Chapter 

13.2.1 of the Idaho Regional Haze SIP 

submittal. 

As explained in the Idaho Regional 

Haze SIP submission, Idaho considered 

whether these two BART eligible 

sources were subject-to-BART. See 

Regional Haze SIP submittal Appendix 

F, Table 3 for a discussion of the Nu 

West modeling to determine whether it 

met the threshold for being subject to 

BART. The modeling shows the impact 

of Nu West in Class I areas within a 300 

km radius, including the Bridger and 

Fitzpatrick Wilderness Areas. The SIP 

submittal explains that over a three year 

period (2003–2005) there were no days 

where Nu West had an impact of greater 

than 0.5 dv, the Idaho threshold for 

sources being subject to BART. The 

greatest impact occurred in the Bridger 

Wilderness Area with a value of 0.051 

dv, or approximately 1⁄10 the level of the 

‘BART subject’ threshold. 

A discussion of the J.R. Simplot 

modeling to determine whether it met 

the threshold for being subject to BART 

can be found in the SIP submittal, 

Appendix F, Table 11 (page 198 of 

Appendix F of the SIP submittal). The 

modeling shows the impact of J.R. 

Simplot in Class I areas within a 300 km 

radius of the plant, including the 

Fitzpatrick Wilderness Area. Over a 

three year period (2003–2005) there 

were no days where J.R. Simplot had an 

impact of greater than 0.5 dv in the 

Fitzpatrick Wilderness Area. 

The modeling showed that neither 

facility met the 0.5 dv contribution 

threshold. Therefore, IDEQ reasonably 

determined that neither Nu West nor 

J.R. Simplot were subject to BART. As 

explained in the proposed rulemaking 

EPA agreed with the State’s 

determination in this regard. 

Comment 2: The commenter believes 

that Region 10 should make good on its 

finding that the 0.5 dv threshold is not 

adequate to avoid the requirement for 

BART to be installed because there is 

likely no objective basis to claim that 

the J.R. Simplot and Nu West plants 

have ‘‘relatively limited impact on 

visibility’’ when it comes to Wyoming 

Class areas. If the greatest improvements 

due to BART being required on the 

Monsanto/P4 Plant are seen at the Teton 

Wilderness Area, it seems very likely 

that even greater benefits would be seen 

at the Bridger and Fitzpatrick 

Wilderness Areas if BART were 

required for the J.R. Simplot and Nu 

West plants. Consequently BART 

should be required for these sources of 

emissions. 

Response: As explained above, the 

methods and process IDEQ used to 

determine that 0.5dv is an appropriate 

threshold to use to determine if an 

individual source is subject to BART are 

consistent with the Regional Haze Rule. 

For the reasons explained in the Federal 

Register notice describing the rationale 

for the proposed action, while Idaho 

failed to provide an adequate rationale 

for selecting the 0.5 dv threshold for 

determining BART eligible sources 

subject to BART, EPA determined that 

even with a more robust rationale the 

0.5 dv threshold was acceptable. 76 FR 

1585. Additionally, in reviewing the 

modeling results for Nu West and J.R. 

Simplot for determining whether they 

are subject to BART, it is apparent that 

Idaho would had to have established a 

threshold below 0.1 dv in order to 

include these additional sources subject 

to BART. A 1.0 dv change in visibility 

is usually a small but perceptible scenic 

change. (See Interagency Monitoring of 

Protected Visual Environments 

(IMPROVE) newsletter, Vol. 2 No. 1, 

Winter 1993). In EPA’s view, generally 

a 0.1 dv threshold is unreasonable 

because the human eye could not 

perceive this change in visibility 

impairment and yet would require 

significant expenditure of resources to 

implement BART. 

The Wyoming Regional Haze SIP 

submittal that was submitted to EPA 

Region 8 does not identify any sources 

in Idaho that significantly impact Class 

I areas in Wyoming. In developing the 

Reasonable Progress Goals for Class I 

areas in Wyoming, the Wyoming SIP 

relies on the consultation process in the 

WRAP for establishing emission 

reductions from sources located in 

Idaho. See Chapter 11.1 page 184 of the 

Wyoming SIP submittal. 

III. Final Action 

EPA is approving the BART measures 

in the Idaho Regional Haze plan as 

meeting the requirements of section 

110(a)(2)(D)(i)(II) of the CAA with 

respect to the 1997 8-hour ozone and 

1997 PM2.5 NAAQS. In addition, EPA is 

approving portions of the Idaho 

Regional Haze SIP, submitted on 

October 25, 2010, as meeting the 

requirements set forth in section 169A 

of the Act and in 40 CFR 51.308(e) 

regarding BART. EPA is also approving 

the Idaho submittal as meeting the 

requirements of 51.308(d)(2) and (4)(v) 

regarding the calculation of baseline and 

natural conditions for Craters of the 

Moon National Monument, Sawtooth 

Wilderness Area, and Selway-Bitterroot 

Wilderness Area, and the statewide 

inventory of emissions of pollutants that 

are reasonably anticipated to cause or 

contribute to visibility impairment in 

any mandatory Class I Federal Area. 

IV. Scope of Action 

Idaho has not demonstrated authority 

to implement and enforce IDAPA 

chapter 58 within ‘‘Indian Country’’ as 

defined in 18 U.S.C. 1151.4 Therefore, 

EPA proposes that this SIP approval not 

extend to ‘‘Indian Country’’ in Idaho. 

See CAA sections 110(a)(2)(A) (SIP shall 

include enforceable emission limits), 

110(a)(2)(E)(i) (State must have adequate 

authority under State law to carry out 

SIP), and 172(c)(6) (nonattainment SIPs 

shall include enforceable emission 

limits). This is consistent with EPA’s 

previous approval of Idaho’s prevention 

of significant deterioration (PSD) 

program, in which EPA specifically 

disapproved the program for sources 

within Indian Reservations in Idaho 

because the State had not shown it had 

authority to regulate such sources. See 

40 CFR 52.683(b). It is also consistent 

with EPA’s approval of Idaho’s title V 

air operating permits program. See 61 

FR 64622, 64623 (December 6, 1996) 

(interim approval does not extend to 

Indian Country); 66 FR 50574, 50575 

(October 4, 2001) (full approval does not 

extend to Indian Country). 


jlentini on DSK4TPTVN1PROD with RULES
36338 Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Rules and Regulations 

V. Statutory and Executive Orders 

Review 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is 

not a ‘‘significant regulatory action’’ and 

therefore is not subject to review by the 

Office of Management and Budget. For 

this reason, this action is also not 

subject to Executive Order 13211, 

‘‘Actions Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001). This action merely approves 

state law as meeting Federal 

requirements and imposes no additional 

requirements beyond those imposed by 

state law. Accordingly, the 

Administrator certifies that this rule 

will not have a significant economic 

impact on a substantial number of small 

entities under the Regulatory Flexibility 

Act (5 U.S.C. 601 et seq.). Because this 

rule approves pre-existing requirements 

under state law and does not impose 

any additional enforceable duty beyond 

that required by state law, it does not 

contain any unfunded mandate or 

significantly or uniquely affect small 

governments, as described in the 

Unfunded Mandates Reform Act of 1995 

(Pub. L. 104–4). 

In addition, this rule does not have 

Tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the rule 

neither imposes substantial direct 

compliance costs on Tribal 

governments, nor preempts Tribal law. 

Therefore, the requirements of section 

5(b) and 5(c) of the Executive Order do 

not apply to this rule. Consistent with 

EPA policy, EPA nonetheless provided 

a consultation opportunity to Tribes in 

Idaho, Oregon and Washington in letters 

dated January 14, 2011. EPA received 

one request for consultation, and we 

have followed-up with that Tribe. This 

action also does not have Federalism 

implications because it does 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 (64 FR 43255, 

August 10, 1999). This action 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. This rule also is not subject to 

Executive Order 13045 ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

April 23, 1997), because it approves a 

state rule implementing a Federal 

standard. 

In reviewing SIP submissions, EPA’s 

role is to approve state choices, 

provided that they meet the criteria of 

the CAA. In this context, in the absence 

of a prior existing requirement for the 

State to use voluntary consensus 

standards (VCS), EPA has no authority 

to disapprove a SIP submission for 

failure to use VCS. It would thus be 

inconsistent with applicable law for 

EPA, when it reviews a SIP submission, 

to use VCS in place of a SIP submission 

that otherwise satisfies the provisions of 

the CAA. Thus, the requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) do not 

apply. This rule does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act of 1995 (44 U.S.C. 3501 et seq.). 

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. 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). 

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 22, 2011. 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, visibility, 

and Volatile organic compounds. 

Dated: June 13, 2011. 

Dennis J. McLerran, 

Regional Administrator, Region 10. 

Part 52, chapter I, title 40 of the Code 

of Federal Regulations 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 N—Idaho 

■ 2. Section 52.670 is amended as 

follows: 

■ a. In paragraph (d) by adding two 

entries to the end of the table. 

■ b. In paragraph (e) by adding an entry 

to the end of the table. 

§ 52.670 Identification of plan. 

* * * * * 

(d) * * * 

EPA-APPROVED IDAHO SOURCE-SPECIFIC REQUIREMENTS1

Name of source Permit No. 

State effective 

date 

EPA approval date Explanation 

*******

The Amalgamated Sugar Company LLC— 

Nampa Factory, Nampa, Idaho.

T2–2009.0105 09/07/10 

(date 

issued).

06/22/11 [Insert page 

number where the 

document begins].

The following conditions: 1.2 (including 

table), 3 (heading only), 3.1, 3.2, 3.3, 3.4 

(including table), 3.6, 3.7, 3.8, 3.9, 3.10, 

3.11, 3.12, 3.13, 3.15, 3.16, and 3.17. 

(Regional Haze SIP revision). 


jlentini on DSK4TPTVN1PROD with RULES
Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Rules and Regulations 36339 

EPA-APPROVED IDAHO SOURCE-SPECIFIC REQUIREMENTS1—Continued 

Name of source Permit No. 

State effective 

date 

EPA approval date Explanation 

P4 Production, L.L.C. , Soda Springs, Idaho T2–2009.0109 11/17/ 

2009 

(date 

issued).

06/22/11 [Insert page 

number where the 

document begins].

The following conditions: 1.2 (including 

Table 1.1), 2.3, 2.4, 2.5, 2.6, 2.7, and 

2.8. (Regional Haze SIP Revision). 

1EPA does not have the authority to remove these source-specific requirements in the absence of a demonstration that their removal would 

not interfere with attainment or maintenance of the NAAQS, violate any prevention of significant deterioration increment or result in visibility impairment. Idaho Department of Environmental Quality may request removal by submitting such a demonstration to EPA as a SIP revision. 

* * * * * (e) * * * 

EPA-APPROVED IDAHO NONREGULATORY PROVISIONS AND QUASI-REGULATORY MEASURES

Name of SIP provision 

Applicable geographic or nonattainment area 

State submittal 

date EPA approval date Comments 

*******

Regional Haze SIP Revision.State-wide ........ 10/25/10 06/22/11 [Insert page 

number where the document begins].

The portion of the Regional Haze SIP revision relating to BART, the calculation of baseline and natural conditions, and the statewide inventory of 

emissions of pollutants that are reasonably anticipated to cause or contribute to visibility impairment in any mandatory Class I Federal Area. 

■ 3. Section 52.672 is amended by 

adding paragraph (g) to read as follows: 

§ 52.672 Approval of plans. 

* * * * * 

(g) Visibility protection. (1) EPA 

approves portions of a Regional Haze 

SIP revision submitted by the Idaho 

Department of Environmental Quality 

on October 25, 2010, as meeting the 

requirements of Clean Air Act section 

169A and 40 CFR 51.308(e) regarding 

Best Available Retrofit Technology. The 

SIP revision also meets the requirements 

of 40 CFR 51.308(d)(2) and (4)(v) 

regarding the calculation of baseline and 

natural conditions for Craters of the 

Moon National Monument, Sawtooth 

Wilderness Area, and Selway-Bitterroot 

Wilderness Area and the statewide 

inventory of emissions of pollutants that 

are reasonably anticipated to cause or 

contribute to visibility impairment in 

any mandatory Class I Federal Area. The 

SIP revision also meets the requirements 

of Clean Air Act section 

110(a)(2)(D)(i)(II) as it applies to 

visibility for the 1997 8-hour ozone 

NAAQS and 1997 PM2.5 NAAQS. 

(2) [Reserved] 

[FR Doc. 2011–15452 Filed 6–21–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 98 

[EPA–HQ–OAR–2009–0927; FRL–9322–1] 

RIN A2060 

Mandatory Reporting of Greenhouse 

Gases: Additional Sources of 

Fluorinated GHGs: Extension of Best 

Available Monitoring Provisions for 

Electronics Manufacturing 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule; Grant of 

reconsideration. 

SUMMARY: This action gives notice that 

EPA has initiated the reconsideration 

process in response to a request for 

reconsideration of provisions for the use 

of best available monitoring methods in 

Subpart I: Electronics Manufacturing of 

the Mandatory Greenhouse Gas 

Reporting Rule. Consequently, this 

action extends three of the deadlines in 

Subpart I related to using the best 

available monitoring methods 

provisions from June 30, 2011 to 

September 30, 2011. 

DATES: This final rule is effective on 

June 30, 2011. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Carole Cook, Climate Change Division, 

Office of Atmospheric Programs (MC– 

6207J), Environmental Protection 

Agency, 1200 Pennsylvania Avenue 

NW., Washington, DC 20460; telephone 

number (202) 343–9263; fax (202) 343– 

2342; e-mail address: 

GHGReportingRule@epa.gov. For 

technical information and 

implementation materials, please go to 

the Web site http://www.epa.gov/ 

climatechange/emissions/ 

ghgrulemaking.html. To submit a 

question, select Rule Help Center, then 

select Contact Us. 

SUPPLEMENTARY INFORMATION: 

Acronyms and Abbreviations. The 

following acronyms and abbreviations 

are used in this document. 

BAMM Best Available Monitoring Methods 

CAA Clean Air Act 

CBI confidential business information 

CFR Code of Federal Regulations 

EPA U.S. Environmental Protection Agency 

FR Federal Register 

GHG greenhouse gas 

mm millimeters 

NTTAA National Technology Transfer and 

Advancement Act of 1995 

PRA Paperwork Reduction Act 

QA/QC quality assurance/quality control 

RFA Regulatory Flexibility Act 

SIA Semiconductor Industry Association 

SBREFA Small Business Regulatory 

Enforcement Fairness Act 

UMRA Unfunded Mandates Reform Act of 

1995 

U.S. United States 

WWW Worldwide Web 

Table of Contents 

I. Background Information 


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