Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Rules and Regulations 51915 

(d) Regulations. (1) The general 

regulations contained in 33 CFR 165.23, 

as well as the following regulations, 

apply. 

(2) No vessels, except for fireworks 

barge and accompanying vessels, will be 

allowed to transit the safety zone 

without the permission of the COTP. 

(3) All persons and vessels shall 

comply with the instructions of the 

COTP or the designated representative. 

Upon being hailed by a U.S. Coast 

Guard vessel by siren, radio, flashing 

light, or other means, the operator of a 

vessel shall proceed as directed. 

(4) Vessel operators desiring to enter 

or operate within the regulated area 

shall contact the COTP or the 

designated representative via VHF 

channel 16 or 718–354–4353 (Sector 

New York command center) to obtain 

permission to do so. 

(5) Spectators or other vessels shall 

not anchor, block, loiter, or impede the 

transit of event participants or official 

patrol vessels in the regulated areas 

during the effective dates and times, or 

dates and times as modified through the 

Local Notice to Mariners, unless 

authorized by COTP or the designated 

representative. 

(6) Upon being hailed by a U.S. Coast 

Guard vessel or the designated 

representative, by siren, radio, flashing 

light or other means, the operator of the 

vessel shall proceed as directed. Failure 

to comply with a lawful direction may 

result in expulsion from the area, 

citation for failure to comply, or both. 

(7) The COTP or the designated 

representative may delay or terminate 

any marine event in this subpart at any 

time it is deemed necessary to ensure 

the safety of life or property. 

Dated: August 17, 2012. 

G. Loebl, 

Captain, U.S. Coast Guard, Captain of the 

Port New York. 

[FR Doc. 2012–21193 Filed 8–27–12; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R02–OAR–2012–0296; FRL–9720–6] 

Approval and Promulgation of Air 

Quality Implementation Plans; State of 

New York; Regional Haze State 

Implementation Plan and Federal 

Implementation Plan 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is taking final action on 

the Regional Haze State Implementation 

Plan (SIP) submitted by the State of New 

York. EPA is approving seventeen 

source-specific SIP revisions containing 

permits for Best Available Retrofit 

Technology, revisions for Title 6 of the 

New York Codes, Rules and 

Regulations, Part 249, ‘‘Best Available 

Retrofit Technology (BART)’’ and 

section 19–0325 of the New York 

Environmental Conservation Law which 

regulates the sulfur content of fuel oil. 

These revisions to the SIP addressing 

regional haze were submitted by the 

State of New York on March 15, 2010, 

and supplemented on August 2, 2010, 

April 16, 2012 and July 2, 2012. These 

SIP revisions were submitted to address 

Clean Air Act requirements and EPA’s 

rules for states to prevent and remedy 

future and existing anthropogenic 

impairment of visibility in mandatory 

Class I areas through a regional haze 

program. Although New York State 

addressed most of the issues identified 

in EPA’s proposal, EPA is promulgating 

a Federal Implementation Plan to 

address two sources where EPA is 

disapproving New York’s BART 

determinations. 

DATES: This rule is effective on 

September 27, 2012. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R02–OAR–2012–0296. 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, 

e.g., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

www.regulations.gov or in hard copy at 

the Environmental Protection Agency, 

Region II Office, Air Programs Branch, 

290 Broadway, 25th Floor, New York, 

New York 10007–1866. This Docket 

Facility is open from 8:30 a.m. to 4:30 

p.m., Monday through Friday, excluding 

legal holidays. The Docket telephone 

number is 212–637–4249. 

FOR FURTHER INFORMATION CONTACT: 

Robert F. Kelly, Air Planning Section, 

Air Programs Branch, EPA Region 2, 290 

Broadway, New York, New York 10007– 

1866. The telephone number is (212) 

637–4249. Mr. Kelly can also be reached 

via electronic mail at kelly.bob@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. What action is EPA taking? 

II. What additional SIP revisions did New 

York submit consistent with EPA’s 

proposal? 

A. SIP Revisions for BART Determinations 

B. SIP Revision for 6 NYCRR, Part 249, 

‘‘Best Available Retrofit Technology 

(BART)’’ 

C. SIP Revision for New York’s Low Sulfur 

Fuel Oil Strategy 

III. What is contained in EPA’s federal 

implementation plan for New York’s 

regional haze program? 

IV. What comments did EPA receive on its 

proposal and what were EPA’s 

responses? 

V. What are EPA’s conclusions? 

VI. Statutory and Executive Order Reviews 

Throughout this document, wherever 

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

we mean the EPA. 

I. What action is EPA taking? 

EPA is approving New York’s State 

Implementation Plan (SIP) revisions 

addressing regional haze submitted on 

March 15, 2010, and supplemented on 

August 2, 2010, April 16, 2012, and July 

2, 2012. EPA is supplementing New 

York’s SIP with a Federal 

Implementation Plan (FIP) for three 

units at two BART sources where EPA 

is disapproving these BART 

determinations. The following 

paragraphs summarize each of EPA’s 

actions. 

EPA is approving aspects of New 

York’s Regional Haze SIP revision as 

follows: 

• The measures enacted by New York 

are shown to produce emission 

reductions that are sufficient to meet 

New York’s share of the emission 

reductions needed to meet reasonable 

progress goals (found at 40 CFR 

51.308(d)(1)) at Class I areas affected by 

New York’s emissions. 

• New York’s Long Term Strategy, 

since New York submitted final 

approvable permit modifications for all 

facilities on April 16, 2012 and July 2, 

2012 (except for the Roseton and 

Danskammer Generating Stations), in a 

timely manner with the level of control 

in EPA’s April 25, 2012 proposal. EPA’s 

FIP contains BART determinations and 

emission limits for the Roseton and 

Danskammer Generating Stations. 

• New York’s SIP revision consisting 

of Title 6 of the New York Codes, Rules 

and Regulations (6 NYCRR), Part 249, 

‘‘Best Available Retrofit Technology 

(BART).’’ 

• New York’s SIP revision consisting 

of section 19–0325 of the New York 

Environmental Conservation Law which 

regulates the sulfur content of fuel oil. 

EPA is approving the following 

facility BART determinations and 


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51916 Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Rules and Regulations 

1Notwithstanding the submission of the permit, 

EPA is promulgating a FIP for SO2 BART for 

Roseton as explained in this action. 

emissions limits since New York 

submitted final permit modifications to 

EPA as SIP revisions on April 16, 2012 

and July 2, 2012, and the revisions 

match the terms of our April 25, 2012 

proposal published in the Federal 

Register (77 FR 24794): 

• ALCOA Massena Operations (West 

Plant) 

• Arthur Kill Generating Station [NRG] 

• Bowline Generating Station [GenOn] 

• Con Edison 59th Street Station 

• EF Barrett Power Station [National 

Grid (NG)] 

• Holcim (US) Inc—Catskill Plant 

• International Paper Ticonderoga Mill 

• Kodak Operations at Eastman 

Business Park 

• Lafarge Building Materials 

• Lehigh Northeast Cement 

• Northport Power Station [NG] 

• Oswego Harbor Power [NRG] 

• Owens-Corning Insulating Systems 

Feura Bush 

• Ravenswood Generating Station [TC] 

• Ravenswood Steam Plant [Con 

Edison] 

• Roseton Generating Station—Dynegy 

(NOX and PM limits only) 

• Samuel A Carlson Generating Station 

[Jamestown Board of Public Utilities 

(BPU)] 

• Syracuse Energy Corporation [GDF 

Suez] 

EPA is disapproving the following 

BART determinations: 

• New York’s Sulfur Dioxide (SO2) 

BART determinations and emissions 

limits for Units 1 and 2 of Dynegy’s 

Roseton Generating Station. 

• New York’s SO2, Nitrogen Oxide 

(NOX) and Particulate Matter (PM) 

BART determinations and emissions 

limits for Unit 4 of Dynegy’s 

Danskammer Generating Station. 

EPA is promulgating a FIP to address 

the BART determinations identified 

above in our partial disapproval of New 

York’s Regional Haze SIP. 

EPA is taking this action pursuant to 

section 110 of the Clean Air Act (the Act 

or CAA). For additional details on EPA’s 

analysis and findings, the reader is 

referred to the April 25, 2012 proposal 

(77 FR 24794) and the May 9, 2012 

Notice of Data Availability (77 FR 

27162). New York’s entire Regional 

Haze SIP revisions and the full text of 

the public comments are included in the 

Docket (EPA–R02–OAR–2012–0296) 

and available at www.regulations.gov. 

II. What additional SIP revisions did 

New York submit consistent with EPA’s 

proposal? 

On April 25, 2012, EPA proposed to 

take action on a revision to the SIP 

addressing regional haze submitted by 

New York. In that proposal, EPA 

proposed to address through a FIP 

certain requirements not addressed in 

New York’s regional haze SIP 

submission or, alternatively, to approve 

a substantively identical SIP revision by 

New York, should the state timely 

submit such a revision. In two letters, 

both dated April 16, 2012, New York 

submitted the additional materials 

relevant to our proposed action on its 

regional haze SIP submission, including 

proposed SIP revisions addressing the 

requirements for BART for a number of 

sources and addressing the New York 

State Law that regulates the sulfur 

content of fuel oil. Subsequently, on 

May 9, 2012 (77 FR 27162), EPA 

published a notice of data availability to 

notify the public that New York 

submitted additional information to 

supplement New York’s Regional Haze 

SIP. 

As discussed in the May 9, 2012 

notice, EPA was aware that New York 

intended to submit additional 

information relevant to the action EPA 

was proposing on New York’s Regional 

Haze SIP. EPA, therefore, discussed in 

its proposal the possible actions EPA 

would take should this information be 

timely submitted. EPA included in the 

record the draft information that New 

York was in the process of finalizing 

and submitting as part of its SIP 

revision. EPA evaluated this draft 

information as part of the Agency’s 

proposed action on New York’s 

Regional Haze SIP. EPA’s May 9, 2012 

notice indicated that EPA’s final action 

will be based on the proposed 

rulemaking, the additional information 

identified in the notice of data 

availability, and an assessment of any 

public comments that may be received. 

On July 2, 2012, New York submitted 

the remaining adopted permits 

implementing BART which were not 

included in the April 16, 2012 

submission. 

A. SIP Revisions for BART 

Determinations 

New York’s April 16, 2012 SIP 

revisions requested that EPA take action 

on proposed SIP revisions from New 

York in parallel with the state’s 

processing of the following draft Title V 

permits that the state intended to submit 

as SIP revisions to meet the BART 

requirement: Bowline Generating 

Station, Danskammer Generating 

Station, Kodak Operations at Eastman 

Business Park, Oswego Harbor Power, 

Owens-Corning Insulating Systems, and 

Syracuse Energy Corporation. 

New York’s April 16, 2012 SIP 

revisions also requested processing of 

the following adopted Title V permits 

implementing BART for the following 

facilities: ALCOA Massena Operations 

(West Plant), Arthur Kill Generating 

Station, Con Edison 59th Street Station, 

EF Barrett Power Station, Holcim (US) 

Inc—Catskill Plant, International Paper 

Ticonderoga Mill, Lafarge Building 

Materials, Lehigh Northeast Cement, 

Northport Power Station, Ravenswood 

Generating Station, Ravenswood Steam 

Plant, Roseton Generating Station 1, and 

Samuel A Carlson Generating Station. 

Lastly, New York submitted a letter 

dated July 2, 2012 containing SIP 

revisions for the remaining adopted 

Title V permits implementing BART for 

five of the following facilities previously 

discussed in New York’s April 16, 2012 

letter: Bowline Generating Station, 

Kodak Operations at Eastman Business 

Park, Oswego Harbor Power, OwensCorning Insulating Systems, and 

Syracuse Energy Corporation. As further 

discussed in the Response to Comments 

below, New York also submitted an 

updated permit for Lehigh Northeast 

Cement. 

New York did not make any 

substantive changes to the source 

specific Title V permits to incorporate 

BART other than those discussed in 

EPA’s April 25, 2012 proposal and May 

9, 2012 notice or as discussed in the 

Response to Comments below. Since the 

SIP revisions match the terms of our 

proposed FIP, and the SIP revisions 

have been adopted by New York and 

submitted formally to EPA for 

incorporation into the SIP, EPA is 

approving the following facility BART 

determinations and emissions limits: 

ALCOA Massena Operations (West 

Plant), Arthur Kill Generating Station, 

Bowline Generating Station, Con Edison 

59th Street Station, EF Barrett Power 

Station, Holcim (US) Inc—Catskill 

Plant, International Paper Ticonderoga 

Mill, Kodak Operations at Eastman 

Business Park, Lafarge Building 

Materials, Lehigh Northeast Cement, 

Northport Power Station, Oswego 

Harbor Power, Owens-Corning 

Insulating Systems, Ravenswood 

Generating Station, Ravenswood Steam 

Plant, Roseton Generating Station (NOX

and PM limits only as contained in the 

adopted Title V permit), Samuel A 

Carlson Generating Station, and 

Syracuse Energy Corporation. 

B. SIP Revision for 6 NYCRR, Part 249, 

‘‘Best Available Retrofit Technology 

(BART)’’ 

New York promulgated Part 249 to 

require BART eligible facilities to 


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Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Rules and Regulations 51917 

2MANE–VU is the Mid-Atlantic/North East 

Visibility Union, a regional planning organization, 

comprising Maine, New Hampshire, Vermont, 

Massachusetts, Rhode Island, Connecticut, New 

York, New Jersey, Pennsylvania, Maryland, the 

District of Columbia, the Penobscot Nation, and the 

St. Regis Mohawk Tribe. 

3Note the averaging times for the FIP are modeled 

on New York’s applicable SIP in order to coordinate 

the FIP with other existing New York limitations. 

perform an analysis of potential controls 

for each visibility-impairing pollutant. 

EPA evaluated New York’s general 

BART rule submittal for consistency 

with the CAA and EPA’s regulations, 

including public notice and hearing 

requirements, and determined that the 

rule met these requirements. EPA is 

approving New York’s Part 249 as part 

of the SIP. 

C. SIP Revision for New York’s Low 

Sulfur Fuel Oil Strategy 

New York’s April 16, 2012 SIP 

revisions request that EPA include in 

New York’s Regional Haze SIP the New 

York State legislation regulating the 

sulfur content of fuel oil, Bill Number 

S1145C, which amends the New York 

Environmental Conservation Law to 

include a new section 19–0325, effective 

July 15, 2010. EPA’s May 9, 2012 notice 

discussed New York’s SIP revision 

request and EPA’s proposed approval of 

this request. 

Major SO2 emission reductions are 

obtained as a result of the legislation 

being implemented. These reductions 

are occurring in 2012, well before the 

2016 ‘‘ask’’ by MANE–VU 2. EPA 

proposed to determine that New York’s 

low sulfur fuel oil strategy in 

combination with the other planned 

reductions will provide the necessary 

reductions from New York for other 

Class I areas to meet their respective 

Reasonable Progress Goals. Please refer 

to the April 25, 2012 proposal for 

additional information regarding New 

York’s Low Sulfur Fuel Oil Strategy. In 

addition, existing provisions of 6 

NYCRR, Subpart 225–1, ‘‘Fuel 

Composition and Use—Sulfur 

Limitations,’’ are incorporated in the 

current federally approved New York 

SIP, and Subpart 225–1 contains 

provisions regarding enforcement and 

compliance, emissions and fuel 

monitoring, reporting, recordkeeping, 

sampling and analysis. EPA is 

approving New York’s request to 

incorporate section 19–0325 of New 

York’s Environmental Conservation Law 

as part of the SIP. As we noted in our 

proposal, New York’s section 19–0325, 

sulfur in fuel rule, does not completely 

fulfill the sulfur in fuel requirements 

MANE–VU modeled to show progress 

toward reducing haze. EPA is approving 

New York’s submittal of its sulfur in 

fuel law as it helps meet its progress 

requirements. We describe later how 

New York meets its share toward 

making the regional haze progress goal 

without the full program. 

III. What is contained in EPA’s federal 

implementation plan for New York’s 

regional haze program? 

As discussed in EPA’s April 25, 2012 

proposal, in the event New York did not 

submit a SIP revision with final permit 

modifications for all BART sources, 

which match the terms of our proposed 

FIP, EPA proposed to publish a final 

rulemaking with a FIP for those BART 

sources. While New York’s revised SIP 

covered most of the units addressed in 

EPA’s proposal, it did not include final 

BART permit modifications consistent 

with our proposed FIP for certain of the 

units at Dynegy’s Roseton and 

Danskammer Generating Stations. 

Therefore EPA is disapproving those 

portions of the SIP and promulgating a 

FIP addressing the SO2 BART 

requirements and setting emissions 

limits for Units 1 and 2 of Dynegy’s 

Roseton Generating Station, and 

addressing the SO2, NOX and PM BART 

requirements and setting emissions 

limits for Unit 4 of Dynegy’s 

Danskammer Generating Station. New 

York did submit a SIP revision with 

final BART permit modifications 

consistent with EPA’s proposed FIP 

with respect to NOX and PM for Units 

1 and 2 at Dynegy’s Roseton Generating 

Station. EPA therefore is not adopting a 

FIP for the NOX and PM BART 

determinations for Roseton Units 1 and 

2. 

The final FIP includes the following 

elements: 

• NOX BART determination and an 

emission limit for Danskammer 

Generating Station Unit 4 of 0.12 

pounds per million British thermal 

units (lb/MMBtu), to be met on a 24- 

hour average during the ozone season 

(May through September) 3 and a 30-day 

rolling average the rest of the year, and 

a requirement that the owners/operators 

comply with this NOX BART limit by 

July 1, 2014. 

• SO2 BART determination and an 

emission limit for Danskammer 

Generating Station Unit 4 of 0.09 lb/ 

MMBtu, to be met on a 24-hour average, 

and a requirement that the owners/ 

operators comply with this SO2 BART 

limit by July 1, 2014. 

• PM BART determination and an 

emission limit for Danskammer 

Generating Station Unit 4 of 0.06 lb/ 

MMBtu, to be met on a one-hour 

average, and a requirement that the 

owners/operators comply with this PM 

BART limit by July 1, 2014. 

• SO2 BART determination and an 

emission limit for Roseton Generating 

Station Unit 1 and Unit 2 of 0.55 lb/ 

MMBtu, to be met on a 24-hour average, 

and a requirement that the owners/ 

operators comply with this SO2 BART 

limit by January 1, 2014. 

• Monitoring, record-keeping, and 

reporting requirements for the above 

three units to ensure compliance with 

these emission limitations. 

EPA’s April 25, 2012 proposal 

contained proposed regulatory language 

for § 52.1686 of title 40 of the Code of 

Federal Regulations (CFR) for the 

purpose of adding new provisions 

containing EPA’s FIP for Regional Haze. 

EPA notes that since New York 

submitted SIP revisions to address most 

of EPA’s proposed FIP, EPA is finalizing 

only the regulatory language in section 

51.1686 that covers EPA’s FIP for the 

Roseton and Danskammer Generating 

Stations. 

We encourage New York at any time 

to submit a SIP revision to incorporate 

provisions that match the terms of our 

FIP, or relevant portion thereof. If EPA 

were to approve such a SIP revision, 

after public notice and comment, the 

SIP approved provisions could replace 

the FIP provisions. 

IV. What comments did EPA receive on 

its proposal and what were EPA’s 

responses? 

EPA received several comments from 

the following parties in response to our 

April 25, 2012 proposal and May 9, 

2012 notice of data availability: ALCOA 

Massena Operations (ALCOA), Dynegy 

Northeast Generation, Inc. (Dynegy), 

Earthjustice on behalf of the National 

Parks Conservation Association and 

Sierra Club (Earthjustice), GenOn 

Bowline, LLC (Bowline), Lehigh 

Northeast Cement Group (Lehigh), New 

York State Department of 

Environmental Conservation (New 

York), and the United States Forest 

Service (US Forest Service). A summary 

of the comments and EPA’s responses 

are provided below. 

BART Comments—BART Permit 

Modifications 

Comment: New York commented that 

EPA should update the number of BART 

permits that have been issued in final 

form by New York. 

Response: We agree and we have 

taken the permits into account. In 

section II. of this action—‘‘What 

Additional SIP revisions did New York 

Submit Consistent with EPA’s 

Proposal?’’ EPA discusses those final 

BART permits issued by New York. 


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51918 Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Rules and Regulations 

Comment: New York commented it 

will not be finalizing revisions to 

permits for the Roseton and 

Danskammer Generating Stations to 

address EPA’s proposed emission limits 

prior to EPA’s deadline for a final FIP. 

Response: EPA’s April 25, 2012 

proposal contained BART emission 

limits for Roseton and Danskammer 

Generating Stations which differed from 

the BART limits identified by New York 

for Roseton and proposed for 

Danskammer. In section III. of this 

action—‘‘What is Contained in EPA’s 

Federal Implementation Plan for New 

York’s Regional Haze Program?’’ EPA 

discusses the final FIP for the Roseton 

and Danskammer Generating Stations. 

Comment: New York provided several 

comments regarding EPA’s proposed 

regulatory language for section 52.1686 

of title 40 of the CFR and how the 

monitoring requirements and other 

provisions should be revised to better 

reflect the monitoring requirements that 

are characteristic for the different types 

of emissions sources. These include 

electric generating units, large industrial 

boilers and other types of source 

categories. 

Response: As noted above, since New 

York submitted SIP revisions to address 

EPA’s proposed FIP, EPA is finalizing 

the regulatory language in section 

51.1686 accordingly. Therefore, the 

regulatory language in section 51.1686 

contains provisions to only cover EPA’s 

FIP for the Roseton and Danskammer 

Generating Stations. These changes to 

section 51.1686 address New York’s 

comments. 

Comment: ALCOA commented that 

the monitoring, recordkeeping, and 

reporting requirements which EPA 

proposed in section 52.1686 for the 

proposed FIP were inappropriate for a 

primary aluminum production facility. 

ALCOA stated EPA should either 

approve the New York BART SIP 

requirements for the facility, or adopt 

the monitoring, recordkeeping and 

reporting requirements in New York’s 

BART permit verbatim into the final 

FIP. 

Response: Following our proposed 

rule, New York adopted the final Title 

V permit for the ALCOA Massena 

Operations (West Plant) facility 

implementing BART. New York’s 

permit included the appropriate 

monitoring, recordkeeping and 

reporting requirements and the state 

formally submitted the BART permit as 

a SIP revision to EPA. EPA is approving 

the New York BART SIP requirements 

for the ALCOA Massena Operations 

(West Plant) facility. 

Comment: Dynegy objected to any 

permit condition which would require 

the Danskammer or Roseton Units to 

burn a particular fuel or switch fuel 

forms. 

Response: EPA agrees and is not 

adopting any such conditions. As 

indicated in the April 25, 2012 

proposal, EPA has determined that these 

emission limits can be reasonably met 

with any of the fuels and/or 

combination of fuels evaluated for this 

BART determination and available to 

the plant. 

Comment: Bowline commented that 

as a result of a clerical error unrelated 

to EPA’s rulemaking, the draft Title V 

permit referred to by EPA in the April 

25, 2012 proposal for New York’s 

Regional Haze SIP was not the same 

version of the draft Title V permit that 

New York provided to Bowline and did 

not accurately reflect the BART 

requirements proposed to be imposed 

on the Bowline Units. More specifically, 

Bowline presented the correct NOX

BART emission limits and permit 

conditions in the comment letter to 

EPA. Bowline requested EPA to revise 

the SIP approval or, if necessary, the 

FIP, to reflect the correct Title V permit 

requirements for the Bowline Units 

which were arrived at in New York’s 

BART Determination. 

Response: EPA acknowledges that the 

draft Title V permit for Bowline 

included with the April 25, 2012 

proposal was not the correct version of 

the draft Title V permit developed by 

New York for Bowline. After further 

inspection of the files contained in the 

Docket, and the additional information 

presented to EPA by Bowline and New 

York, EPA confirmed that the other 

documents used as the basis for EPA’s 

April 25, 2012 proposal, with the 

exception of the draft Title V permit, 

were correct and acceptable for the 

purpose of proposing a BART 

determination. The clerical error made 

at the state-level of the BART permit 

modification, did not change the 

underlying technical BART 

determination analysis, and New York’s 

February 15, 2012 Environmental News 

Bulletin contained the correct BART 

determination and permit conditions 

that were noticed for public review by 

the state. Upon further review, EPA 

agrees with Bowline and New York that 

our April 25, 2012 proposal presented 

NOX BART emission limits that were 

different from the limits and permit 

conditions which were available for 

public review at the state-level, and 

which New York ultimately adopted for 

the Bowline Units. 

EPA’s April 25, 2012 proposal 

indicated NOX emissions from Bowline 

Units 1 and 2 would be limited to 0.15 

lb/MMBtu on a 24-hour average during 

the ozone season and a 30-day rolling 

average during the non-ozone season, 

with compliance by January 1, 2014. 

Bowline and New York provided further 

documentation to EPA that the correct 

BART determination and permit 

conditions that were noticed for public 

review by the state in the February 15, 

2012 Environmental News Bulletin, 

were as follows: 

• By July 1, 2014, NOX emission from 

Units 1 and 2 are limited to 0.15 lb/ 

MMBtu when burning natural gas, 

measured on a 24-hour average during 

the ozone season and a 30-day rolling 

average during the non-ozone season. 

• By July 1, 2014, NOX emission from 

Units 1 and 2 are limited to 0.25 lb/ 

MMBtu when burning oil, measured on 

a 24-hour average during the ozone 

season and a 30-day rolling average 

during the non-ozone season 

• By July 1, 2014, oil-firing is limited 

to 3.1 million barrels during the ozone 

season and 4.6 million barrels during 

the non-ozone season. 

• The limit for oil and gas dual fuel 

firing periods will be heat input 

weighted between 0.15 lb/MMBtu and 

0.25 lb/MMBtu. 

The correct NOX BART determination 

requires an emission limit of 0.15 lb/ 

MMBtu when burning natural gas and 

0.25 lb/MMBtu when burning oil. These 

are the limits that reflect Bowline’s 

implementation of BART. In response to 

the clerical error, EPA has determined 

that these emission limits are acceptable 

for BART, and are based on New York’s 

BART determination for Bowline and 

merely are reflective of the limits that 

Bowline can achieve when 

implementing BART for different types 

of fuels. EPA notes these limits are also 

similar to other NOX BART emission 

limits EPA is approving in this action 

for other similar peaking units that are 

used only a small period of time each 

year. These limits are based on a 

detailed technical analysis which 

considers circumstances specific to 

Bowline, consistent with EPA’s BART 

Guidelines. 

With respect to the BART compliance 

date, EPA’s April 25, 2012 proposal 

indicated a compliance date of January 

1, 2014, consistent with the compliance 

date contained in New York’s BART 

regulation Part 249. New York issued 

final BART permit modifications for the 

Bowline Units requiring compliance by 

July 1, 2014. While the July 1, 2014 

compliance date is six months later than 

the January 1, 2014 compliance date in 

New York’s Part 249, EPA has 

determined that the July 1, 2014 

compliance date is still consistent with 

EPA’s BART Guidance for compliance 

as expeditiously as possible but no later 


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4See 40 CFR 51.301 (defining ‘‘BART’’); 40 CFR 

part 51 App. Y. 

than five years from EPA’s approval of 

the state’s Regional Haze SIP. 

EPA notes that the previous versions 

of the BART Permit modifications 

indicated these emission limits do not 

apply during start-up and shut-down 

periods. However, EPA informed New 

York that the BART emission limits 

must apply at all times. Therefore, the 

final BART determinations and final 

BART Title V permit modification 

submitted to EPA as part of the July 2, 

2012 SIP revisions do not contain any 

exclusions for start-up and shut-down 

periods. Lastly, EPA did not receive any 

other comments related to Bowline’s 

BART determinations or permit limits, 

except from Bowline itself. In response 

to Bowline’s comments and additional 

supporting analyses and documentation 

provided by Bowline and New York, 

EPA is therefore approving Bowline’s 

BART determinations and BART 

emission limit permit conditions 

presented above. 

Comment: New York and Lehigh both 

commented that the Title V permit 

referred to by EPA in the April 25, 2012 

proposal for New York’s Regional Haze 

SIP was being modified. New York and 

Lehigh requested that the requirement 

to install a baghouse on the rotary kiln 

be removed from the permit since the 

requirement to install a baghouse was 

not intended to meet BART, but to meet 

the federal Portland Cement Maximum 

Achievable Control Technology (MACT) 

which EPA is currently reevaluating to 

determine the deadlines for compliance. 

Lehigh and New York also requested the 

permit include a new SO2 limit of 1.50 

lb/MMBtu to supplement the fuel sulfur 

limits EPA proposed as BART. 

Response: EPA has determined that 

the amendments to Lehigh’s Title V 

permit are acceptable. The permit 

amendments do not change the PM 

BART emission limit of 0.30 lb/ton feed 

proposed by EPA in the April 25, 2012 

proposal for the rotary kiln. The permit 

amendments also provide a new SO2

BART emission limit of 1.50 lb/MMBtu 

that will supplement the existing limits. 

Compliance with the new SO2 limit will 

be determined by annual stack tests. 

These revisions to the permit are 

consistent with the underlying technical 

BART determination analysis. New 

York issued a new public notice of the 

permit revisions for public review, and 

then adopted the permit modifications. 

EPA did not receive any other 

comments related to Lehigh’s BART 

determinations or permit limits, except 

from Lehigh and New York. In response 

to these comments on EPA’s April 25, 

2012 proposal, and additional 

supporting analyses and documentation 

provided by Lehigh and New York, EPA 

is therefore approving Lehigh’s BART 

determinations and BART emission 

limit permit conditions presented above 

since the revised Title V permit is 

consistent with the terms of our 

proposed FIP, has been adopted by New 

York, and submitted formally to EPA for 

incorporation into the SIP. 

BART Comments—Emission Limits 

Comment: U.S. Forest Service 

supported EPA’s proposals to require a 

0.55 lb/MMBtu SO2 emission limit for 

Roseton Units 1 and 2, 0.09 lb/MMBtu 

SO2 emission limit for Danskammer 

Unit 4, and 0.20 lb/MMBtu NOX

emission limit for Kodak Boiler 42 if the 

Boiler is repowered with natural gas. 

Response: EPA acknowledges the 

support for the proposed BART 

emission limits. EPA is adopting these 

limits. 

Comment: Dynegy pointed out that 

the operators of the Danskammer and 

Roseton Generating Stations are 

currently the subject of Chapter 11 

bankruptcy proceedings, and therefore 

not in a position to select any of the SO2

BART FIP emission limits proposed by 

EPA. 

Response: EPA has an obligation to 

either approve New York’s Regional 

Haze SIP or promulgate a FIP that 

establishes BART for the Danskammer 

and Roseton Generating Stations, 

regardless of other legal proceedings 

that may involve the Danskammer and 

Roseton Generating Stations. EPA is 

adopting SO2 BART FIP emission limits 

for the Danskammer and Roseton 

Generating Stations. 

BART Comments—Specific to Dynegy 

BART Determinations 

Comment: Earthjustice urged EPA to 

finalize the proposed disapproval of the 

SO2 BART determination for 

Danskammer Unit 4 and endorsed EPA’s 

reasons for proposing to disapprove 

New York’s BART analysis. 

Response: EPA is finalizing our 

proposed disapproval of the SO2 BART 

determination for Danskammer and is 

adopting SO2 BART FIP emission limits 

for the facility. 

Comment: Earthjustice commented 

that New York improperly allowed 

Dynegy to conduct the BART analysis 

and select its emission limitation. 

Response: It is common practice for 

the facility to do the technical analysis 

in order to determine BART for eligible 

sources, submit that information to the 

state and then for the state to review and 

adopt or modify the BART 

determination. In fact, with respect to 

the Regional Haze program, New York 

adopted the regulation 6 NYCRR, Part 

249, ‘‘Best Available Retrofit 

Technology (BART)’’ to require BART 

eligible facilities to perform an analysis 

of potential controls for each visibilityimpairing pollutant. Congress crafted 

the Clean Air Act to provide for states 

to take the lead in developing 

implementation plans but balanced that 

decision by requiring EPA to review the 

plans to determine whether a SIP meets 

the requirements of the Act. In 

undertaking such a review, EPA does 

not usurp a state’s authority but ensures 

that such authority is reasonably 

exercised. BART determinations are the 

responsibility of the states, which have 

the freedom to determine the weight 

and significance of the statutorily 

required five-factors in a BART 

determination. EPA then reviews a 

state’s determination as included in its 

regional haze plan. With respect to New 

York’s Regional Haze plan, EPA 

determined that New York addressed 

the five factors for the BART 

determinations sufficiently to allow 

EPA to conclude that the state’s BART 

determinations were reasonable, for all 

BART-eligible facilities except for 

Roseton and Danskammer facilities. In 

the case of the Roseton and 

Danskammer facilities, where EPA’s 

review of New York’s determination 

resulted in a different conclusion, EPA 

developed a FIP. 

Comment: Earthjustice commented 

New York’s failure to select a specific 

technology as BART for either its NOX

or SO2 determination for Danskammer 

results in an arbitrary emission limit 

that cannot be considered BART. 

Earthjustice argued that New York and 

EPA do not have the statutory authority 

under Section 169A(b)(2) of the Act to 

set an emission limitation for NOX and 

SO2 without first designating a 

particular control technology as BART. 

Response: EPA’s BART Guidelines 

make clear that processes and practices, 

or a combination thereof, may be 

designated as BART. See 40 CFR part 51 

App. Y, section IV.D. The applicable 

regional haze regulations and EPA’s 

BART Guidelines define BART as ‘‘an 

emission limitation based on the degree 

of reduction achievable through the 

application of the best system of 

continuous emission reduction.’’ 4 The 

application of practices and processes to 

the operation of a facility can be 

considered the ‘‘best system.’’ 

New York’s proposed BART 

determination for the Danskammer 

facility listed a combination of policies 

and practices as a control option for 

both SO2 and NOX. To accomplish a 

side-by-side comparison with other 


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51920 Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Rules and Regulations 

5 40 CFR part 51 App. Y. 

6See Regulations.gov for EPA–R02–OAR–2012– 

0296, file marked ‘‘final permits,’’ attachment 

identified as ‘‘2012–12–02 Dynegy Final BART 

Analysis—Redacted Copy.’’ 

control options, it calculated an 

emission limitation that could be 

achieved by employing those processes 

and practices. All control options were 

reviewed using the procedure set forth 

in EPA’s BART Guidelines, and New 

York reached a determination that the 

combination of processes and practices 

was BART. It was not necessary for New 

York to set its emission limitations with 

reference to a specific technology. The 

chosen emission limitations for both 

NOX and SO2 were set with reference to 

the application of a combination of 

practices and processes. This was done 

in accordance with the top-down BART 

determination analysis contained in 

EPA’s BART Guidelines.5 Although EPA 

objected to the emission limitation set 

for SO2, it did not object to New York’s 

proposed determination that a 

combination of practices and processes 

was BART for the Danskammer facility. 

Earthjustice’s comments do not 

accurately reflect the BART analysis 

conducted by New York or by EPA. 

Comment: Earthjustice said EPA must 

impose a more stringent SO2 BART FIP 

emission limit of 0.06 lb/MMBtu instead 

of EPA’s proposed 0.09 lb/MMBtu 

because EPA failed to consider all 

available control technologies, 

including a wet scrubber or circulating 

dry scrubber. Earthjustice also 

commented that the proposed emission 

limit is not associated with any specific 

control technology. 

Response: EPA disagrees that the 

BART analysis failed to consider all 

available control technologies and EPA 

disagrees that the limit is not associated 

with a control technology. In Dynegy’s 

submission to New York, it determined 

that BART was lowering Unit 4’s 

current SO2 permit limit from 1.10 lbs/ 

MMBtu to 0.50 lbs/MMBtu. This limit 

was based on the facility putting in 

place a combination of processes/ 

practices, including: (1) Use of 

alternative coal, (2) co-firing with 

natural gas, and (3) installation of post 

combustion controls. Dynegy identified 

this particular limit as a control option 

based on an engineering study that 

identified and evaluated the available 

SO2 control options. This was done in 

accordance with Step One of the BART 

Guidelines, which requires the state to 

identify all possible control options that 

could be used as BART. 40 CFR part 51 

App. Y. Dynegy’s consultants used a 

fuel cost table and calculations 

contained in an attached excel 

worksheet titled ‘‘Fuel Costs’’ to 

determine the emission limitation that 

could be achieved by applying the 

above practices/processes as BART. 

Those calculations make clear that the 

estimated emission limitation for SO2

was set using factors based on the use 

of alternative fuels, co-firing with 

natural gas, and installing post 

combustion controls. 

The engineering study identified 

other control options, including Flue 

Gas Desulfurization (‘‘FGD’’) options 

with Lime Based Spray Dryer; 

Circulating Dry Scrubber and Wet 

Limestone; options for Dry Sorbent 

Injection of minerals such as Trona; 

combustion of alternative coals; 100% 

combustion of natural gas; and co-firing 

natural gas. In accordance with Step 

Two of the BART Guidelines, the 

facility evaluated the technical 

feasibility of each control option, 

concluding that all options were 

technically feasible for the Danskammer 

facility. It then evaluated each control 

option’s cost effectiveness, conducted 

impact analyses on cost of compliance, 

energy impacts, and nonair quality 

environmental impacts, and modeled 

selected control option’s visibility 

impact using the CALPUFF modeling 

program; all in accordance with Steps 

Two through Four of the BART 

Guidelines. 40 CFR part 51 App. Y. 

As required by New York’s BART 

regulation, Part 249, the facility 

conducted a side-by-side comparison 

and the facility showed that the use of 

an emission limitation based on the 

application of the above practices/ 

processes was BART for the 

Danskammer facility.6 Dynegy’s analysis 

showed that an emission limit of 0.50 

lbs/MMBtu, accomplished through the 

use of a combination of processes/ 

practices, would achieve a greater 

impact on regional visibility than the 

remaining control options. Dynegy then 

selected the 0.50 lbs/MMBtu as the 

facility’s SO2 emission limitation. New 

York reviewed Dynegy’s analysis and 

determined that BART was lowering the 

SO2 emission limit from 1.1 lb/MMBtu 

to 0.50 lb/MMBtu by implementing the 

combination of processes/practices 

discussed above. 

However, EPA’s own analysis of the 

combination of processes/practices 

identified by Dynegy and the proposed 

determination by New York as BART 

showed that a lower emission limitation 

than that contained in the state’s plan is 

achievable with this technology. EPA 

conducted its own evaluation and set a 

lower estimated emission limitation, 

0.09 lb/MMBtu, as a control option. It 

concluded that ‘‘these same control 

option strategies can achieve a more 

stringent SO2 emission limit than the 

0.5 lb/MMBtu limit, on a more costeffective basis, and therefore result in 

more visibility improvement.’’ 77 FR 

24792, 24813. The 0.09 lb/MMBtu limit 

was calculated using the fuel costs 

contained in Dynegy’s own fuel costs 

worksheets. EPA then used Dynegy’s 

own side-by-side comparisons to 

demonstrate that its proposed 0.09 lb/ 

MMBtu limit was BART for the 

Danskammer facility. 

Since EPA’s proposed BART emission 

limitation was set with reference to 

processes/practices evaluated using the 

BART Guidelines, and since processes/ 

practices can be considered as the ‘‘best 

system of emission reduction’’ pursuant 

to those same guidelines, EPA’s 

proposed emission limitation is not 

arbitrary. 40 CFR part 51 App. Y. 

Therefore EPA is finalizing the SO2

BART FIP emission limit of 0.09 lb/ 

MMBtu for Danskammer. 

Comment: Earthjustice commented 

there is no way to justify EPA’s 

proposed option to approve New York’s 

0.50 lb/MMBtu SO2 limit for 

Danskammer given the ready 

availability of cost-effective controls. 

Response: EPA’s proposed option that 

allowed New York to submit additional 

information to support its higher 

estimated emission limitation was not 

improper. New York conducted its 

BART analysis in accordance with 

BART Guidelines, but failed to properly 

support its emission limitation for SO2

based on the analysis of Dynegy’s own 

fuel cost worksheet. At the time of 

EPA’s April 25, 2012 proposal, New 

York had not yet issued a final BART 

permit, so there remained the possibility 

that additional information could be 

provided to further support New York’s 

proposed BART determination. If New 

York had demonstrated that its 0.50 lb/ 

MMBtu limit was accurate by 

submitting additional material to EPA, it 

may have been appropriate for EPA to 

approve New York’s proposed BART 

determination. Regardless, neither New 

York nor Dynegy submitted additional 

information specific to the 0.50 lb/ 

MMBtu SO2 limit. Consequently, EPA is 

finalizing the SO2 BART FIP emission 

limit of 0.09 lb/MMBtu for 

Danskammer. 

Comment: Earthjustice commented 

that other nonair quality environmental 

impacts and additional power 

requirements are an improper basis for 

rejecting wet scrubber or circulating dry 

scrubber control or Selective Catalytic 

Reduction (SCR) as BART. 

Response: Although Dynegy appears 

to reject certain pollution controls on 

the basis of nonair quality 


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7 Difference between 0.651 deciviews and 0.569 

deciviews is 0.08 deciviews, 8th high. 

environmental impacts and additional 

energy requirements, EPA went back 

and reanalyzed Dynegy’s analysis. 

Dynegy did a full five factor analysis 

and considered the cost effectiveness of 

controls and the visibility improvement 

of possible controls. EPA concluded that 

the controls resulting from Dynegy’s 

analysis were not BART, and adopted 

much more stringent SO2 emissions 

limits and determined the NOX

emissions limits based on visibility. In 

EPA’s determination of BART, we did 

not disqualify any SO2 or NOX control 

strategies because of any energy or 

nonair quality environmental impacts. 

Comment: Earthjustice provided 

extensive comments to support its 

position that EPA must disapprove New 

York’s NOX BART determination for 

Dynegy’s Danskammer Unit 4. 

Earthjustice contends that New York’s 

and EPA’s proposed NOX emission limit 

of 0.12 lb/MMBtu is unattached to any 

selected BART technology and therefore 

must be rejected. Earthjustice comments 

that BART for this facility should be the 

installation of SCR with a NOX emission 

limit not higher than 0.05 lb/MMBtu (on 

a 30-day rolling average). Earthjustice 

states SCR is cost-effective, feasible, and 

will result in significant visibility 

benefits. 

Response: EPA disagrees with 

Earthjustice’s conclusion that the 

proposed NOX emission limit of 0.12 lb/ 

MMBtu and associated controls cannot 

be considered BART. First, Dynegy and 

New York evaluated nineteen different 

controls for BART (including SCR) at 

Danskammer and, after conducting the 

5-factor analysis as required by section 

169A(g)(2) of the Act, New York’s 

proposed determination that BART 

consists of optimization of existing 

Level II Low NOX Burners emission 

controls, co-firing with natural gas, 

installation of post-combustion controls, 

use of alternative coals, or any 

combination thereof to achieve a NOX

emission limit of 0.12 lb/MMBtu. 

Dynegy’s proposal committed to 

meeting a specific emission limit with a 

combination of specific controls and 

therefore Earthjustice’s contention that 

this selection of BART technology is 

arbitrary is without merit. BART is an 

emission limit (See 40 CFR 51.301) and 

Dynegy’s BART analysis commits to 

lowering the NOX emission limit from 

0.42 lb/MMBtu to 0.12 lb/MMBtu (24- 

hour average during the ozone season, 

30-day average during the non-ozone 

season) based upon the use of a 

combination of specific possible 

controls. 

Secondly, Earthjustice comments and 

provides detailed technical reasons as to 

why SCR should be considered BART 

for this facility with a NOX emission 

limit not higher than 0.05 lb/MMBtu on 

a 30-day rolling average. EPA agrees 

with Earthjustice that SCR technology is 

cost effective for the Danskammer 

facility and it has been demonstrated at 

numerous coal fired utilities that 

achieved an emission limit of this 

magnitude. However, as explained in 

the following paragraphs, EPA has 

concluded that the implementation of 

Earthjustice’s recommendation of SCR 

technology with an emission limit of 

0.05 lb/MMBtu provides only minimal 

visibility improvement (8th high 

cumulative at the seven Class I areas) 

when compared to EPA’s proposed FIP 

that BART is an emission limit of 0.12 

lb/MMBtu when implementing the 

combination of controls described 

above. 

Dynegy evaluated SCR plus flue gas 

recirculation (FGR) using a control 

efficiency of 91.0% that is equivalent to 

a NOX emission limit of 0.038 lb/ 

MMBtu (note that in EPA’s April 25, 

2012 proposal, there was a calculation 

error for this control option and the 

correct emission limit for NOX

associated with SCR + FGR is 0.038 lb/ 

MMBtu, not 0.38 lb/MMBtu). As 

required by section 169A(g)(2) of the 

Act, one of the five factors to be 

evaluated for BART is the visibility 

impact of the emissions from a 

particular control technology being 

considered for BART. Dynegy evaluated 

the visibility benefits at the seven Class 

I areas impacted by the facility and as 

noted in Table 6 of EPA’s April 25, 2012 

proposed rule for New York (77 FR at 

24814), the total visibility improvement 

across the seven Class I areas from SCR 

+ FGR is only better by 0.08 deciviews 

as compared to Dynegy’s proposed 

combination of controls associated with 

a BART emission limit of 0.12 lb/ 

MMBtu.7 As pointed out by 

Earthjustice, the maximum cumulative 

visibility improvement is significantly 

better by 0.534 dv (2.477 dv versus 

1.943 dv) for SCR + FGR compared to 

Dynegy’s proposed BART emission limit 

of 0.12 lb/MMBtu. However, EPA’s 

Guidelines document calls for the use of 

the 98th percentile (essentially the 8th 

highest day) rather than the maximum 

modeled daily impact. These Guidelines 

further state that while ‘‘the use of the 

98th percentile of modeled visibility 

values would appear to exclude roughly 

7 days per year from consideration, in 

our judgment, this approach will 

effectively capture the sources that 

contribute to visibility impairment in a 

Class I area, while minimizing the 

likelihood that the highest modeled 

visibility impacts might be caused by 

unusual meteorology or conservative 

assumptions in the model.’’ See 70 FR 

39104, 39121 (July 6, 2005). 

Accordingly, EPA used the 98th 

percentile (8th high) visibility to 

compare the visibility impacts of 

different control technologies for the 

Danskammer facility. 

Furthermore, Dynegy’s visibility 

analysis included a summary of the 

number of days that exceed 1.0 dv, 0.5 

dv and 0.1 dv for each NOX control 

strategy at each of the seven impacted 

Class I areas. This visibility analysis 

shows only a small improvement in 

days exceeding the three respective dv 

thresholds for the SCR + FGR case 

compared to Dynegy’s proposed 

combination of BART controls with an 

emission limit of 0.12 lb/MMBtu. The 

cumulative number of days exceeding 

each of the dv thresholds for the SCR + 

FGR (with NOX emissions of 0.038 lb/ 

mm BTU) and Dynegy’s proposed 

combination of controls (with NOX

emissions of 0.12 lb/MMBtu) is 

summarized in the following table: 

Class I area 

Difference in the number of days when the visibility impact exceeds 1.0, 0.5, and 0.1 deciviews for each Class I 

area for two different control strategies 

1.0 deciview 0.5 deciview 0.1 deciview 

SCR 

+ 

FGR 

0.12 lb/ 

MMBtu NOX

Difference 

in days 

between 

control 

strategies 

SCR 

+ 

FGR 

0.12 lb/ 

MMBtu NOX

Difference 

in days 

between 

control 

strategies 

SCR 

+ 

FGR 

0.12 lb/ 

MMBtu NOX

Difference 

in days 

between 

control 

strategies 

Lye Brook, VT ....................... 6 6 0 15 16 1 59 62 3 


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Class I area 

Difference in the number of days when the visibility impact exceeds 1.0, 0.5, and 0.1 deciviews for each Class I 

area for two different control strategies 

1.0 deciview 0.5 deciview 0.1 deciview 

SCR 

+ 

FGR 

0.12 lb/ 

MMBtu NOX

Difference 

in days 

between 

control 

strategies 

SCR 

+ 

FGR 

0.12 lb/ 

MMBtu NOX

Difference 

in days 

between 

control 

strategies 

SCR 

+ 

FGR 

0.12 lb/ 

MMBtu NOX

Difference 

in days 

between 

control 

strategies 

Brigantine, NJ ....................... 1 1 0 7 7 0 56 59 3 

Acadia Nat’l Park, ME ........... 0 0 0 3 4 1 50 52 2 

Presidential Range, NH ........ 0 1 1 4 4 0 38 43 5 

Great Gulf, NH ...................... 0 0 0 4 4 0 31 37 6 

Otter Creek, WV ................... 0 0 0 0 0 0 8 8 0 

Dolly Sods, WV ..................... 0 0 0 0 0 0 10 11 1 

Total days ............................. 7 8 1 33 35 2 252 272 20 

Based upon the two visibility analyses 

described above, EPA concludes that 

Earthjustice’s recommended BART 

technology, i.e., SCR, with an emission 

limit of 0.05 lb/MMBtu, would not be 

expected to provide any significant 

improvement in visibility at the seven 

Class I areas over Dynegy’s proposed 

BART implementation of a combination 

of specific possible controls with an 

emission limit of 0.12 lb/MMBtu. 

Therefore, EPA concludes that NOX

BART for Danskammer Unit 4 is 

unchanged from our April 25, 2012 

proposal, i.e., an emission limit of 0.12 

lb/MMBtu by the optimization of 

existing Level II Low NOX Burners 

emission controls, co-firing with natural 

gas, installation of post-combustion 

controls, use of alternative coals, or any 

combination thereof. 

Comment: Earthjustice took issue 

with EPA’s inclusion in the Docket of 

the redacted version of Dynegy’s BART 

analysis and suggested that EPA relies 

on, but fails to review or provide critical 

costs and energy impacts and failed to 

obtain or withheld critical projected 

capacity factor information. 

Response: In establishing the 

Agency’s determination of BART for 

Danskammer Unit 4, EPA relied on the 

same information from Dynegy’s BART 

analysis that was available to the public. 

EPA disagrees that we failed to review, 

provide, or obtain information relevant 

to our review of the Dynegy BART 

analysis. EPA’s review and analysis 

focused on Danskammer’s potential to 

emit and did not involve the need for 

information regarding Dynegy’s future, 

projected utilization rates for the 

Danskammer facility. EPA determined 

this information was not relevant to this 

rulemaking. 

Comment: Earthjustice commented 

that EPA failed to establish a historical 

emissions baseline and that EPA should 

have corrected Dynegy’s use of a ten 

year useful life of pollution control. 

Response: EPA agrees that Dynegy did 

not establish a historical emissions 

baseline or use a reasonable lifetime for 

pollution control equipment, but the 

Agency does not agree that these errors 

affected EPA’s analysis and 

determination as to appropriate BART 

limits for the Dynegy facilities. EPA 

used Dynegy’s potential to emit rather 

than its historical emissions, which 

resulted in a more conservative 

approach that increased the estimated 

cost-effectiveness of controls. As for 

Earthjustice’s comment regarding the 

ten year useful life of control 

equipment, Dynegy used a 10-year 

useful life for the Danskammer emission 

unit itself. While we agree that a 10-year 

remaining useful life is not an 

appropriate assumption unless there is 

an enforceable commitment to shut 

down, our review of this alleged 

discrepancy between a 10-year or a 30- 

year useful life of the facility did not 

change our conclusions, since the 

controls are cost effective either way. 

EPA did not discuss the remaining 

useful life in the April 25, 2012 

proposal because the controls are costeffective. 

Comment: Dynegy supported EPA’s 

proposed compliance date of July 1, 

2014 for the Danskammer Unit 4 BART 

emission limits, EPA’s proposed NOX

and PM BART determinations for the 

Danskammer and Roseton Units and the 

form (lbs/MMBtu) of the proposed 

emission limits for the Danskammer and 

Roseton units. 

Response: EPA acknowledges the 

support for the proposed compliance 

date, the proposed BART 

determinations and the proposed form 

of the BART emission limits. In this 

action, EPA is finalizing these limits. 

Comment: New York indicated 

revisions are being developed to New 

York’s fuel sulfur limitations under Part 

225–1 which will likely supersede 

EPA’s SO2 BART limit for the Roseton 

Generating Station, soon after EPA’s 

January 1, 2014 compliance date. 

Response: EPA fully supports New 

York’s development and adoption of 

these regulations. 

Comment: New York disagreed with 

EPA’s determination in the April 25, 

2012 proposal that Dynegy incorrectly 

analyzed visibility impacts at only the 

maximally-impacted federal Class I area, 

rather than at all impacted Class I areas. 

Earthjustice agreed with EPA’s 

determination to consider the 

cumulative visibility impacts at all 

impacted Class I areas. 

Response: In reviewing New York’s 

BART determinations for Dynegy’s 

Roseton and Danskammer Generating 

Stations, EPA took into account the 

visibility benefits of requiring controls 

by considering the improvements at 

both the most impacted Class I area as 

well as the improvements at all 

impacted Class I areas and Dynegy’s 

own conclusions regarding the impacts 

on visibility from the controls under 

consideration. With regard to New 

York’s comment that consideration of 

the BART Guidelines do not require the 

consideration of visibility benefits at all 

Class I areas, the state cited to text 

indicating that consideration of 

visibility impacts at all impacted Class 

I areas ‘‘might be unwarranted.’’ This 

language in the BART Guidelines is 

clearly meant to provide a common 

sense approach to streamlining a 

complex and difficult modeling exercise 

where ‘‘an analysis may add a 

significant resource burden to a State.’’ 

See 70 FR 39126. While the BART 

Guidelines indicate that a detailed 

analysis of the visibility impacts at each 

area in a cluster of Class I areas may not 

be necessary, this is not because the 

visibility impacts at Class I areas other 

than the most impacted are irrelevant 

but rather because the visibility benefits 

at the most impacted Class I area alone 

may be sufficient to justify the selection 


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Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Rules and Regulations 51923 

8The report was finalized as Documentation of 

2018 Emissions from Electric Generating Units in 

the Eastern United States for MANE–VU’s Regional 

Haze Modeling Final Report, 16 August 2009, with 

no changes that affect this analysis. It is available 

at http://www.marama.org/technical-center/ 

emissions-inventory/ei-improvement-projects/ 

electricy-generating-units. 

of the most stringent control technology 

as BART. Where, as here, the benefits of 

controls have been modeled for a 

number of surrounding areas and 

consideration of these benefits is useful 

in determining the appropriate level of 

controls, EPA does not agree that these 

benefits should be ignored. 

EPA concludes that it appropriately 

took into account the visibility impacts 

across all seven of the impacted Class I 

areas in deciding to adopt more 

stringent BART limits. There are many 

large sources of pollutants that reduce 

visibility and impact several Class I 

areas in the northeastern United States. 

EPA has included, in our review of the 

multi-factor analysis, the impact these 

major sources have on more than one 

Class I area. The smaller impacts from 

these major sources combine with 

impacts from other major sources in the 

northeast to have important impacts on 

visibility in these protected areas. While 

EPA is primarily concerned with 

impacts at the Class I area nearest each 

major source, EPA encourages costeffective control strategies that improve 

visibility across many Class I areas. 

Reductions in visibility-impairing 

pollutants from a major facility, with 

reduced impacts from similarly large 

sources in other areas and other states, 

will go a long way toward improving 

visibility in these areas. 

Comment: Earthjustice commented 

that EPA offers no explanation for ruling 

out a hybrid SCR/SNCR control option 

and a FGR+SCR control option as BART 

even though the maximum cumulative 

visibility improvement across seven 

affected Class I areas is shown to be 

2.244 dv and 2.477 dv, respectively. 

Earthjustice questions how EPA arrived 

at this decision for NOX when it arrived 

at a different decision for SO2.

Response: The visibility improvement 

cited to by Earthjustice is based on the 

maximum anticipated visibility 

improvements at the seven Class I areas 

impacted by the Danskammer facility. 

EPA did not base its decision to approve 

New York’s BART determinations on 

these maximum cumulative visibility 

improvement values; rather EPA 

focused on the 8th high (98th 

percentile) visibility impacts predicted 

by the visibility modeling in evaluating 

a particular control option. In this case, 

the visibility benefits based on 

consideration of the 8th high visibility 

impacts for the hybrid SCR/SNCR and 

FGR+SCR options are far less than 2.0 

deciviews. The visibility impacts 

measured cumulatively across the seven 

impacted Class I areas based on the 8th 

high number are 0.689 dv for SCR/SNCR 

and 0.651 dv for FGR+SCR. EPA 

concluded that these control options 

provide minimal visibility improvement 

when compared to the BART level of 

control of 0.12 lbs of NOX/MMBtu, with 

a 8th high cumulative visibility 

improvement of 0.569 dv. As for SO2, in 

contrast, the visibility improvement 

associated with the BART limit set by 

EPA based on the 8th high impacts is 

2.174 dv of improvement, as measured 

across the seven Class I areas. 

Comment: Earthjustice commented 

that EPA did not establish any 

significance thresholds for costs or for 

visibility improvement in making BART 

determinations. 

Response: EPA’s BART guidelines in 

the BART Rule do not require EPA to 

develop a specific threshold, but rather 

to evaluate each BART determination on 

a case-by-case basis for each source. All 

five factors must be compared to 

determine the level of control that is 

BART on a case-by-case basis. 

Comment: Earthjustice commented 

that EPA failed to conduct a BART 

analysis for particulate matter and that 

BART Guidelines (40 CFR part 51, 

Appendix Y, section IV.C) require BART 

limits to be at least as stringent as 

maximum available control technology 

(MACT), such as EPA’s Mercury and Air 

Toxics Standards. 

Response: The comments received do 

not convince us that our PM BART 

determination for Danskammer is 

unreasonable. EPA reviewed Dynegy’s 

BART analysis and New York’s 

proposed BART determination and we 

agreed that it represents BART. The 

existing electrostatic precipitator control 

is 99.98% effective in reducing PM 

emissions. We consider this level of 

control to be BART for the Danskammer 

facility. Neither EPA nor a state is 

required to set BART based on the limits 

in a MACT standard. MACT standards 

are established by EPA for reasons that 

are much different than the reasons for 

the limits established in Regional Haze 

SIPs. Further, that section of the BART 

Guidelines the comment refers to was 

not meant to require states to take into 

account MACT requirements in 

determining BART, but rather to 

provide states with the option to 

streamline the BART analysis for 

sources subject to the MACT standards 

by relying on the MACT standards for 

purposes of BART. In addition, EPA 

notes that compliance with the 

particulate matter emission limit in the 

FIP is based on a one-hour averaging 

time period, while the MACT is based 

on a 30 day rolling average. It is 

accordingly difficult to compare the two 

limits. 

In summary, EPA determined the 

existing electrostatic precipitator control 

represents the BART level of control for 

PM for this particular facility. 

Comment: Earthjustice stated that 

BART determinations must consider 

filterable PM10, PM2.5 and condensable 

PM. Earthjustice stated that EPA should 

have considered more stringent PM 

emission limits accepted as BART or as 

best available control technology known 

as BACT or even the maximum 

achievable control technology known as 

MACT. Earthjustice requested EPA to 

disapprove New York’s PM BART 

determination and adopt a FIP that 

establishes BART limits for filterable 

PM10, PM2.5 and condensable PM. 

Response: EPA disagrees that the PM 

BART limits should be disapproved. 

The existing electrostatic precipitator 

control on the facility and the emission 

limit from the BART determination are 

effective in reducing filterable 

particulates. Condensable particulates 

will be reduced as a result of the 

reductions in SO2 and NOX emissions at 

the facility. Separate emission limits for 

each form of particulates are not 

required for BART. EPA also disagrees 

that the FIP’s BART limits should be 

consistent with BACT or MACT. BART, 

BACT and MACT are all specific 

statutorily defined approaches to 

establishing emissions limitations for 

sources under different CAA programs. 

Reasonable Progress Goals Comments 

Comment: Earthjustice commented 

that EPA’s conclusion that New York 

will achieve its reasonable progress 

goals is based on an unidentified 

analysis performed by MANE–VU, 

resulting in the public’s inability to 

assess the accuracy or reasonableness of 

MANE–VU’s calculations and EPA’s 

statements related to MANE–VU’s 

analysis. Earthjustice recommended that 

EPA reject its conclusion that New York 

would achieve its reasonable progress 

goals since the analysis was not 

available for public review. 

Response: EPA disagrees that the 

MANE–VU analysis was not available 

for public review and EPA disagrees we 

should reject our conclusion that New 

York would achieve its reasonable 

progress goals. MANE–VU’s analysis 

titled Documentation of 2018 Emissions 

from Electric Generating Units in the 

Eastern United States for MANE–VU’s 

Regional Haze Modeling, Revised Final 

Draft, April 2008 8 was originally 


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9The MANE–VU document referenced in the 

previous footnote explains in Section 5.5 on page 

29: ‘‘ * * * MANE–VU planners recognized that 

CAIR allows emissions trading, and that reductions 

at one unit could offset increases at another unit 

within the CAIR region. Because most states do not 

restrict trading, MANE–VU decided that emissions 

should be increased to represent the 

implementation of the strategy for the 167 stacks 

within the limits of the CAIR program. Therefore, 

NESCAUM increased the emissions from states 

subject to the CAIR cap and trade program. For 

MANE–VU, 75,809 tons were added back, leaving 

total regional emissions from the MANE–VU region 

greater than the original Inter-RPO IPM-based 

estimate but consistent with state projections.’’ 

available for public review during the 

New York rulemaking process for its 

Regional Haze SIP revision, as well as 

during many of the other MANE–VU 

states’ rulemaking processes. As EPA 

included all of the documents 

associated with New York’s Regional 

Haze SIP revision in the Docket, this 

MANE–VU document was also available 

for public review as part of EPA’s April 

25, 2012 proposal and included in the 

Docket for this rulemaking as Appendix 

W in New York’s Regional Haze SIP 

Submittal documents. 

Table 9 of Appendix W is the final 

MANE–VU emission inventory which 

was modeled to show that 

implementing the MANE–VU measures 

would improve visibility at MANE– 

VU’s Class I areas sufficiently to meet 

the progress goals for 2018 for these 

areas. For the final emission inventory 

described in Appendix W, MANE–VU 

increased the emissions of SO2 from 

power plants to account for the effects 

of EPA’s Clean Air Interstate Rule 

(CAIR) program.9 Applying the CAIR 

program to the New York emission 

inventory increases emissions by 23,142 

tons per year of SO2 from the previous 

MANE–VU inventory that represented 

New York’s application of the controls 

agreed to by the MANE–VU states. Since 

New York is not using EPA’s CAIR or 

subsequent transport rules for BART 

emission controls on sources in New 

York, the final MANE–VU emission 

inventory overestimates the projected 

emissions for New York by 23,142 tons 

per year of SO2. 

New York’s existing sulfur in fuel rule 

does not cover all of the types of fuel oil 

included in the program agreed to by 

the MANE–VU states. New York 

estimates that there is a difference of 

17,669 tons per year of SO2 between the 

program New York has in place now 

and full adoption of the sulfur in fuel 

measure agreed to by the MANE–VU 

states. The 17,669 tons per year of SO2

reductions that New York would have if 

it adopted the entire MANE–VU sulfur 

in fuel rule is less than the excess 

23,142 tons per year of SO2 projected in 

the MANE–VU final modeling 

inventory. These 23,142 tons will not be 

emitted since New York is not using 

CAIR for its Regional Haze Plan. 

Therefore, EPA can approve this portion 

of New York’s Regional Haze Plan 

because New York’s adopted emission 

reductions meet New York’s portion of 

the emission reductions needed to reach 

the progress goals set for MANE–VU’s 

Class I areas. 

Comment: New York disagreed with 

EPA’s discussion of the sulfur 

reductions achieved by New York’s low 

sulfur fuel strategy and the timing of 

those reductions. New York commented 

that sulfur reductions are not required 

to be implemented by the time EPA 

takes final action on New York’s 

Regional Haze SIP, but rather by the 

2018 Reasonable Progress Goal 

deadline. New York stated it is in the 

process of developing regulations to 

expand the low sulfur fuel oil program 

to achieve reductions before 2018. 

Response: EPA agrees sulfur 

reductions are not required to be 

implemented by the time EPA takes 

final action on New York’s Regional 

Haze SIP, but rather as soon as 

reasonable and, at the latest, by the 2018 

Reasonable Progress Goal deadline. 

However, EPA can only act on the 

measures that New York has adopted 

when it submitted its Regional Haze 

Plan, and cannot act on measures that 

may be adopted or enacted later. New 

York needs to adopt all of the measures 

to be used in its Regional Haze SIP. 

New York indicates it is in the 

process of developing regulations to 

expand the low sulfur fuel oil program 

to achieve reductions before 2018. EPA 

fully supports New York’s timely 

development and adoption of these 

regulations. 

General Comments 

Comment: US Forest Service 

complimented EPA and New York on 

the work to date on the Regional Haze 

program and the BART determinations 

and supported EPA’s BART proposals. 

Response: EPA agrees New York has 

successfully addressed the consultation 

process of the Regional Haze Program 

with the Federal Land Managers. 

Comment: New York commented that, 

at the time of its letter, the fact that forty 

states do not have approved Regional 

Haze SIPs highlights the difficulties for 

states to complete their SIPs under the 

schedules set by EPA. 

Response: EPA acknowledges that the 

deadlines established by Congress in the 

CAA for the regional haze program have 

been challenging, but notes that EPA 

has now either proposed or taken final 

action on full regional haze programs for 

all but seven states. 

Comment: Earthjustice commented 

that EPA must affirm New York’s 

decision to apply BART and not rely on 

the Cross State Air Pollution Rule. 

Response: EPA can affirm that New 

York conducted case-by-case BART 

reviews and did not rely on the Cross 

State Air Pollution Rule based on the 

fact that New York adopted 6 NYCRR 

Part 249, a regulation requiring all 

facilities to conduct and submit a BART 

analysis to the state, and because New 

York submitted to EPA source-specific 

SIP revisions for 18 facilities to 

implement BART. 

Comment: Earthjustice commented 

that with respect to New York, the Cross 

State Air Pollution Rule (CSAPR) will 

not achieve greater progress toward 

national visibility goals. 

Response: Since New York is not 

relying on CSAPR, this comment is 

beyond the scope of this rulemaking. 

V. What are EPA’s conclusions? 

EPA has evaluated the proposed 

revisions to the SIP submitted by the 

State of New York that address regional 

haze for the first planning period from 

2008 through 2018. EPA is partially 

approving and partially disapproving 

the revisions to the SIP, which address 

the Regional Haze requirements of the 

Clean Air Act for the first 

implementation period. This approval 

includes the Reasonable Progress 

portion of the plan, New York’s sourcespecific SIP revisions for 

implementation of BART for 17 BARTsubject sources, 6 NYCRR Part 249, 

‘‘Best Available Retrofit Technology 

(BART),’’ effective May 6, 2010, and 

section 19–0325 of the New York 

Environmental Conservation Law, 

effective July 15, 2010, which regulates 

the sulfur content of fuel oil. 

EPA is finalizing amendments to 40 

CFR 52.1670(d) ‘‘EPA-Approved New 

York Source-Specific Provisions’’ to 

incorporate those sources with new 

emission limitations or requirements 

that resulted from the BART 

determinations that are not part of the 

applicable SIP. 

EPA is promulgating a partial FIP to 

address the deficiencies in the plan 

resulting from our partial disapproval of 

New York’s Regional Haze SIP. 

Specifically, EPA’s FIP contains BART 

determinations and emission limits for 

the Roseton and Danskammer 

Generating Stations. 

We have fully considered all 

significant comments on our proposal, 

and, except as noted in sections II, III 

and IV above, have concluded that no 

other changes from our proposal are 

warranted. Our action is based on an 

evaluation of New York’s SIP submittals 


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Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Rules and Regulations 51925 

and our FIP relative to the regional haze 

requirements at 40 CFR 51.300–51.309 

and Clean Air Act sections 169A and 

169B. All general SIP requirements 

contained in section 110 of the Act, 

other provisions of the Act, and our 

regulations applicable to this action 

were also evaluated. The purpose of this 

action is to ensure compliance with 

these requirements. Our authority for 

action on New York’s SIP submittals is 

based on section 110(k) of the Act. Our 

authority to promulgate our partial FIP 

is based on section 110(c) of the Act. 

VI. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This action will promulgate emission 

requirements for two facilities and is 

therefore not a rule of general 

applicability. This type of action is 

exempt from review under Executive 

Orders 12866 (58 FR 51735, October 4, 

1993) and 13563 (76 FR 3821, January 

21, 2011). 

B. Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. Under the 

Paperwork Reduction Act, a ‘‘collection 

of information’’ is defined as a 

requirement for ‘‘answers to * * * 

identical reporting or recordkeeping 

requirements imposed on ten or more 

persons * * *’’ 44 U.S.C. 3502(3)(A). 

Because the FIP applies to just two 

facilities, the Paperwork Reduction Act 

does not apply. See 5 CFR 1320(c). 

Burden means the total time, effort, or 

financial resources expended by persons 

to generate, maintain, retain, or disclose 

or provide information to or for a 

Federal agency. This includes the time 

needed to review instructions; develop, 

acquire, install, and utilize technology 

and systems for the purposes of 

collecting, validating, and verifying 

information, processing and 

maintaining information, and disclosing 

and providing information; adjust the 

existing ways to comply with any 

previously applicable instructions and 

requirements; train personnel to be able 

to respond to a collection of 

information; search data sources; 

complete and review the collection of 

information; and transmit or otherwise 

disclose the information. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to a collection of information 

unless it displays a currently valid 

Office of Management and Budget 

(OMB) control number. The OMB 

control numbers for our regulations in 

40 CFR are listed in 40 CFR Part 9. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of today’s rule on small entities, small 

entity is defined as: (1) A small business 

as defined by the Small Business 

Administration’s (SBA) regulations at 13 

CFR 121.201; (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district or 

special district with a population of less 

than 50,000; and (3) a small 

organization that is any not-for-profit 

enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of this action on small entities, 

I certify that this action will not have a 

significant economic impact on a 

substantial number of small entities. 

The Regional Haze FIP that EPA is 

finalizing for purposes of the regional 

haze program consists of imposing 

Federal controls to meet the BART 

requirement for NOX, SO2 and PM2.5

from one facility and emissions of SO2

from another facility in New York. The 

net result of these two FIP actions is that 

EPA is promulgating emission controls 

on selected units at only two sources. 

The sources in question are each large 

electric generating plants that are not 

owned by small entities, and therefore 

are not small entities. The partial 

approval of the SIP merely approves 

state law as meeting Federal 

requirements and imposes no additional 

requirements beyond those imposed by 

state law. See Mid-Tex Electric 

Cooperative, Inc. v. FERC, 773 F.2d 327 

(D.C. Cir. 1985). 

D. Unfunded Mandates Reform Act 

(UMRA) 

This rule does not contain a Federal 

mandate that may result in expenditures 

of $100 million or more for State, local, 

and tribal governments, in the aggregate, 

or the private sector in any one year. It 

is a rule of particular applicability that 

affects only two facilities in the State of 

New York. Thus, this rule is not subject 

to the requirements of sections 202 or 

205 of UMRA. 

This rule is also not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. This 

rule only applies to two facilities in the 

State of New York. 

E. Executive Order 13132 Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. This action 

addresses the State not fully meeting its 

obligation to adopt a SIP that meets the 

regional haze requirements under the 

CAA. Thus, Executive Order 13132 does 

not apply to this action. Although 

section 6 of Executive Order 13132 does 

not apply to this action, EPA did 

consult with the state government in 

developing this action. A summary of 

the concerns raised during the comment 

period and EPA’s response to those 

concerns is provided in section IV of 

this preamble. 

F. Executive Order 13175 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000), because the action EPA is taking 

neither imposes substantial direct 

compliance costs on tribal governments, 

nor preempts tribal law. It will not have 

substantial direct effects on tribal 

government. Thus, Executive Order 

13175 does not apply to this action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets EO 13045 (62 FR 

19885, April 23, 1997) as applying only 

to those regulatory actions that concern 

health or safety risks, such that the 

analysis required under section 5–501 of 

the EO has the potential to influence the 

regulation. This action is not subject to 

EO 13045 because it implements 

specific standards established by 

Congress in statutes. However, to the 

extent this rule will limit emissions, the 

rule will have a beneficial effect on 

children’s health by reducing air 

pollution. 


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H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not subject to Executive 

Order 13211 (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 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. 

This action does not involve technical 

standards. Today’s action does not 

require the public to perform activities 

conducive to the use of voluntary 

consensus standards. Therefore, EPA 

did not consider the use of any 

voluntary consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629, 

February 16, 1994), establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

We have determined that this rule 

will not have disproportionately high 

and adverse human health or 

environmental effects on minority or 

low-income populations because it 

increases the level of environmental 

protection for all affected populations 

without having any disproportionately 

high and adverse human health or 

environmental effects on any 

population, including any minority or 

low-income population. This rule limits 

emissions of NOX, SO2 and PM2.5 from 

one facility and emissions SO2 from 

another facility in New York. The 

partial approval of the SIP merely 

approves state law as meeting Federal 

requirements and imposes no additional 

requirements beyond those imposed by 

state law. 

K. Congressional Review Act 

The Congressional Review Act, 5 

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

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. Section 804 

exempts from section 801 the following 

types of rules (1) rules of particular 

applicability; (2) rules relating to agency 

management or personnel; and (3) rules 

of agency organization, procedure, or 

practice that do not substantially affect 

the rights or obligations of non-agency 

parties. 5 U.S 804(3). EPA is not 

required to submit a rule report 

regarding today’s action under section 

801 because this is a rule of particular 

applicability. 

L. 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 October 29, 2012. Pursuant to 

Approval and Promulgation of Air 

Quality Implementation Plans; State of 

New York; Regional Haze State 

Implementation Plan and Federal 

Implementation Plan [EPA–R02–OAR– 

2012–0296] CAA section 307(d)(1)(B), 

this action is subject to the requirements 

of CAA section 307(d) as it promulgates 

a FIP under CAA section 110(c). Filing 

a petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action 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 CAA 

section 307(b)(2). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Nitrogen dioxide, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Dated: August 16, 2012. 

Lisa P. Jackson, 

Administrator. 

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. 7401–7671q. 

Subpart HH—New York 

■ 2. Section 52.1670 is amended by: 

■ a. In paragraph (c), revising the table 

heading and adding a new entry for 

Title 6, Part 249, in numeric order and 

adding new subheading ‘‘Environmental 

Conservation Law’’ and table entry at 

end of table (c); and 

■ b. In paragraph (d) by adding new 

entries to the end of table 

■ c. In paragraph (e) by adding new 

entries to the end of table. 

The additions and revisions reads as 

follows: 

§ 52.1670 Identification of plan. 

* * * * * 

(c) * * * 

EPA-APPROVED NEW YORK STATE REGULATIONS AND LAWS

New York State 

regulation 

State 

effective date Latest EPA approval date Comments 

Title 6: 

* * * * * * * 

Part 249, Best Available Retrofit Technology (BART).5/6/10 8/28/12 [Insert page number where the 

document begins].


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Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Rules and Regulations 51927 

EPA-APPROVED NEW YORK STATE REGULATIONS AND LAWS—Continued 

New York State 

regulation 

State 

effective date Latest EPA approval date Comments 

*******

Environmental Conservation Law 

Section 19–0325 ...................................... 7/15/10 8/28/12 [Insert page number where the 

document begins].

(d) * * * 

EPA-APPROVED NEW YORK SOURCE-SPECIFIC PROVISIONS

Name of source Identifier/emission point State effective/approval 

date EPA approval date Explanation 

*******

ALCOA Massena Operations (West Plant).Potline S-00001, Baking 

furnace S-00002, Package Boilers B-00001.

Permit ID 6-4058-00003, 

effective 3/20/12.

8/28/12 [Insert page number where the document 

begins].

Part 249 BART. 

Arthur Kill Generating Station, NRG.Boiler 30 ............................ Permit ID 2-6403-00014, 

effective 3/20/12.

8/28/12 [Insert page number where the document 

begins].

Part 249 BART. 

Bowline Generating Station, GenOn.Boilers 1 and 2 ................. Permit Id 3-3922-00003, 

effective 6/28/12.

8/28/12 [Insert page number where the document 

begins].

Part 249 BART. 

Con Edison 59th Street 

Station.

Steam Boilers 114 and 

115.

Permit Id 2-6202-00032, 

Effective 3/20/12.

8/28/12 [Insert page number where the document 

begins].

Part 249 BART. 

EF Barrett Power Station, 

NG.

Boiler 2 .............................. Permit Id 1-2820-00553, 

effective 3/27/12.

8/28/12 [Insert page number where the document 

begins].

Part 249 BART. 

International Paper Ticonderoga Mill.Power Boiler and Recovery Furnace.Permit Id 5-1548-00008, 

effective 3/19/12.

8/28/12 [Insert page number where the document 

begins].

Part 249 BART. 

Kodak Operations at Eastman Business Park, 

Kodak.

Boilers 41, 42 and 43 ....... Permit Id 8-2614-00205, 

effective 5/25/12.

8/28/12 [Insert page number where the document 

begins].

Part 249 BART. 

Lafarge Building Materials Kilns 1 and 2 ..................... Permit Id 4-0124-00001 effective 7/19/11.8/28/12 [Insert page number where the document 

begins].

Condition 12–14. 

Lehigh Northeast Cement, 

Lehigh Cement.

Kiln and Clinker cooler ..... Permit Id 5-5205-00013, 

effective 7/5/12.

8/28/12 [Insert page number where the document 

begins].

Part 220 and Part 249 

BART. 

Northport Power Station, 

NG.

Boilers 1, 2, 3, and 4 ........ Permit Id 1-4726-00130, 

effective 3/27/12.

8/28/12 [Insert page number where the document 

begins].

Part 249 BART. 

Oswego Harbor Power, 

NRG.

Boilers 5 and 6 ................. Permit Id 7-3512-00030, 

effective 5/16/12.

8/28/12 [Insert page number where the document 

begins].

Part 249 BART. 

Owens-Corning Insulating 

Systems Feura Bush, 

Owens Corning.

EU2, EU3, EU12, EU13, 

and EU14.

Permit Id 4-0122-00004 effective 5/18/12.8/28/12 [Insert page number where the document 

begins].

Part 249 BART. 

Ravenswood Generating 

Station, TC.

Boilers 10, 20, 30 ............. Permit Id 2-6304-00024, 

effective 4/6/12.

8/28/12 [Insert page number where the document 

begins].

Part 249 BART. 

Ravenswood Steam Plant, 

Con Edison.

Boiler 2 .............................. Permit Id 2-6304-01378 effective 3/20/12.8/28/12 [Insert page number where the document 

begins].

Part 249 BART. 

Roseton Generating Station—Dynegy.Boilers 1 and 2 ................. Permit Id 3-3346-00075 effective 11/02/11.

8/28/12 [Insert page number where the document 

begins].

Excluding the SO2 BART 

emissions limits for Boilers 1 and 2 and corresponding monitoring, 

recordkeeping, and reporting requirements, 

which EPA disapproved. 

Samuel A Carlson Generating Station, James 

town Board of Public Utilities.

Boiler 12 ............................ Permit Id 9-0608-00053 effective 2/8/12.8/28/12 [Insert page number where the document 

begins].

Part 249 BART. 


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51928 Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Rules and Regulations 

EPA-APPROVED NEW YORK SOURCE-SPECIFIC PROVISIONS—Continued 

Name of source Identifier/emission point State effective/approval 

date EPA approval date Explanation 

Syracuse Energy Corporation [GDF Suez].Boiler 1 .............................. Permit Id 7-3132-00052 effective 5/24/12.8/28/12 [Insert page number where the document 

begins].

Part 249 BART. 

(e) * * * 

EPA-APPROVED NEW YORK NONREGULATORY AND QUASI-REGULATORY PROVISIONS

Action/SIP 

element 

Applicable geographic or nonattainment area New York 

submittal date EPA approval date Explanation 

*******

Implementation Plan for Regional Haze.Statewide ............................... 3/15/00 8/28/12 [Insert page number 

where the document begins].

The plan is approved except 

for the BART determinations for Danskammer Generating Station Unit 4 and 

Roseton Generating Station 

Units 1 and 2. See 40 CFR 

52.1686. 

Regional Haze plan—Fuel Oil 

Sulfur Content.

Statewide ............................... 4/16/12 8/28/12 [Insert page number 

where the document begins].

Regional Haze Plan—BART 

Permit modifications.

Statewide ............................... 4/16/12 8/28/12 [Insert page number 

where the document begins].

Regional Haze Plan—BART 

Permit modifications.

Statewide ............................... 7/2/12 8/28/12 [Insert page number 

where the document begins].

■ 3. Section 52.1686 is added as follows: 

§ 52.1686 Federal Implementation Plan for 

Regional Haze. 

(a) Applicability. This section applies 

to each owner and operator of the 

following electric generating units 

(EGUs) in the State of New York: 

Danskammer Generating Station, Unit 4; 

and Roseton Generating Station, Units 1 

and 2; 

(b) Definitions. Terms not defined 

below shall have the meaning given 

them in the Clean Air Act or EPA’s 

regulations implementing the Clean Air 

Act. For purposes of this section: 

Boiler operating day means a 24-hour 

period between 12 midnight and the 

following midnight during which any 

fuel is combusted at any time in the 

EGU, boiler or emission unit. It is not 

necessary for fuel to be combusted for 

the entire 24-hour period. 

Continuous emission monitoring 

system or CEMS means the equipment 

required by this section to sample, 

analyze, measure, and provide, by 

means of readings recorded at least once 

every 15 minutes (using an automated 

data acquisition and handling system 

(DAHS)), a permanent record of SO2,

NOX, and PM emissions, other pollutant 

emissions, diluent, or stack gas 

volumetric flow rate. 

SO2 means sulfur dioxide. 

NOX means nitrogen oxides. 

PM means particulate matter 

Owner/operator means any person 

who owns, leases, operates, controls, or 

supervises an EGU or boiler identified 

in paragraph (a) of this section. 

Ozone Season means the time period 

from May 1 through September 30 of 

each year. 

Unit means any of the EGUs or boilers 

identified in paragraph (a) of this 

section. 

(c) Emissions limitations—(1) The 

owners/operators subject to this section 

shall not emit or cause to be emitted 

SO2, NOX, and PM in excess of the 

following limitations, averaged over a 

rolling 30-day period unless otherwise 

indicated below: 

Facilities BART unit 

BART controls/limits 

NOX SO2 PM 

Danskammer Generating Station—Dynegy.4 0.12 lb/MMBtu 24 hr avg 

ozone season, 30 day avg 

rest of yr Compliance 7/1/ 

2014.

0.09 lb/MMBtu 24 hr avg 

Compliance 7/1/2014.

0.06 lb/MMBtu 1 hr avg Compliance 7/1/2014. 

Roseton Generating Station— 

Dynegy.

1 & 2 ................................................ 0.55 lb/MMBtu 24 hr avg .......

(2) These emission limitations shall 

apply at all times, including startups, 

shutdowns, emergencies, and 

malfunctions. 

(d) Compliance date. The owners and 

operators subject to this section shall 

comply with the emissions limitations 


sroberts on DSK5SPTVN1PROD with RULES
Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Rules and Regulations 51929 

and other requirements of this section 

by January 1, 2014 unless otherwise 

indicated in paragraph (c) of this 

section. 

(e) Compliance determination using 

CEMS—(1) CEMS. At all times after the 

compliance date specified in paragraph 

(d) of this section, the owner/operator of 

each unit shall maintain, calibrate, and 

operate a CEMS, in full compliance with 

the requirements found at 40 CFR part 

75, to accurately measure SO2, NOX, and 

PM, diluent, and stack gas volumetric 

flow rate from each unit. The CEMS 

shall be used to determine compliance 

with the emission limitations in 

paragraph (c) of this section for each 

unit. 

(2) Method. (i) For any hour in which 

fuel is combusted in a unit, the owner/ 

operator of each unit shall calculate the 

hourly average SO2, NOX, and PM 

concentration in lb/MMBtu at the CEMS 

in accordance with the requirements of 

40 CFR part 75. At the end of each 

boiler operating day, the owner/operator 

shall calculate and record a new average 

emission rate, consistent with paragraph 

(c) averaging period, in lb/MMBtu from 

the arithmetic average of all valid 

hourly emission rates from the CEMS 

for the current boiler operating day. 

(ii) An hourly average SO2, NOX, or 

PM emission rate in lb/MMBtu is valid 

only if the minimum number of data 

points, as specified in 40 CFR part 75, 

is acquired by the SO2, NOX, or PM 

pollutant concentration monitor and the 

diluent monitor (O2 or CO2). 

(iii) Data reported to meet the 

requirements of this section shall not 

include data substituted using the 

missing data substitution procedures of 

subpart D of 40 CFR part 75, nor shall 

the data have been bias adjusted 

according to the procedures of 40 CFR 

part 75. 

(f) Compliance determination using 

fuel certification—The owner or 

operator of each affected facility subject 

to a federally enforceable requirement 

limiting the fuel sulfur content may use 

fuel supplier certification to 

demonstrate compliance. Records of 

fuel supplier certification, as described 

under paragraphs (f)(1), (2), (3), and (4) 

of this section, as applicable, shall be 

maintained and reports submitted as 

required under paragraph (h). In 

addition to records of fuel supplier 

certifications, the report shall include a 

certified statement signed by the owner 

or operator of the affected facility that 

the records of fuel supplier 

certifications submitted represent all of 

the fuel combusted during the reporting 

period. 

Fuel supplier certification shall 

include the following information: 

(1) For distillate oil: 

(i) The name of the oil supplier; 

(ii) A statement from the oil supplier 

that the oil complies with the 

specifications under the definition of 

distillate oil in § 60.41c; and 

(iii) The sulfur content or maximum 

sulfur content of the oil. 

(2) For residual oil: 

(i) The name of the oil supplier; 

(ii) The location of the oil when the 

sample was drawn for analysis to 

determine the sulfur content of the oil, 

specifically including whether the oil 

was sampled as delivered to the affected 

facility, or whether the sample was 

drawn from oil in storage at the oil 

supplier’s or oil refiner’s facility, or 

other location; 

(iii) The sulfur content of the oil from 

which the shipment came (or of the 

shipment itself); and 

(iv) The method used to determine the 

sulfur content of the oil. 

(3) For coal: 

(i) The name of the coal supplier; 

(ii) The location of the coal when the 

sample was collected for analysis to 

determine the properties of the coal, 

specifically including whether the coal 

was sampled as delivered to the affected 

facility or whether the sample was 

collected from coal in storage at the 

mine, at a coal preparation plant, at a 

coal supplier’s facility, or at another 

location. The certification shall include 

the name of the coal mine (and coal 

seam), coal storage facility, or coal 

preparation plant (where the sample 

was collected); 

(iii) The results of the analysis of the 

coal from which the shipment came (or 

of the shipment itself) including the 

sulfur content, moisture content, ash 

content, and heat content; and 

(iv) The methods used to determine 

the properties of the coal. 

(4) For other fuels: 

(i) The name of the supplier of the 

fuel; 

(ii) The potential sulfur emissions rate 

or maximum potential sulfur emissions 

rate of the fuel in nanograms per joule 

(ng/J) heat input; and 

(iii) The method used to determine 

the potential sulfur emissions rate of the 

fuel. 

(g) Compliance determination with an 

annual emission limit—The owner or 

operator of each affected facility subject 

to a federally enforceable requirement 

limiting the annual emissions shall 

calculate the annual emissions 

individually for each fuel combusted, as 

applicable. The annual emission 

limitation is determined on a 12-month 

rolling average basis with a new annual 

emission limitation calculated at the 

end of the calendar month, unless a 

different reporting period is identified 

in paragraph (c). 

(h) Recordkeeping. Owner/operator 

shall maintain the following records for 

at least five years: 

(1) All CEMS data, including the date, 

place, and time of sampling or 

measurement; parameters sampled or 

measured; and results. 

(2) All fuel supplier certifications and 

information identified in paragraph 

(f)(1), (2), (3), or (4) of this section, as 

applicable. 

(3) Records of quality assurance and 

quality control activities for emissions 

measuring systems including, but not 

limited to, any records required by 40 

CFR Part 75. 

(4) Records of all major maintenance 

activities conducted on emission units, 

air pollution control equipment, and 

CEMS. 

(5) Any other records required by 40 

CFR part 75. 

(i) Reporting. All reports under this 

section shall be submitted to the 

Director, Division of Enforcement and 

Compliance Assistance, U.S. 

Environmental Protection Agency, 

Region 2, 290 Broadway, New York, 

New York 10007–1866. 

(1) Owner/operator shall submit 

quarterly excess emissions reports no 

later than the 30th day following the 

end of each calendar quarter. Excess 

emissions means emissions that exceed 

the emissions limits specified in 

paragraph (c) of this section. The reports 

shall include the magnitude, date(s), 

and duration of each period of excess 

emissions, specific identification of 

each period of excess emissions that 

occurs during startups, shutdowns, and 

malfunctions of the unit, the nature and 

cause of any malfunction (if known), 

and the corrective action taken or 

preventative measures adopted. 

(2) Owner/operator shall submit 

quarterly CEMS performance reports, to 

include dates and duration of each 

period during which the CEMS was 

inoperative (except for zero and span 

adjustments and calibration checks), 

reason(s) why the CEMS was 

inoperative and steps taken to prevent 

recurrence, any CEMS repairs or 

adjustments, and results of any CEMS 

performance tests required by 40 CFR 

part 75 (Relative Accuracy Test Audits, 

Relative Accuracy Audits, and Cylinder 

Gas Audits). 

(3) When no excess emissions have 

occurred or the CEMS has not been 

inoperative, repaired, or adjusted during 

the reporting period, such information 

shall be stated in the report. 

(4) Owner/operator shall submit semiannual fuel certification reports no later 


sroberts on DSK5SPTVN1PROD with RULES
51930 Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Rules and Regulations 

than the 30th day following the end of 

each six month period. 

(5) Owner/operator shall submit an 

annual emissions limitation calculation 

report no later than the 30th day 

following the end of the calendar year 

or quarter if a rolling average is required 

in paragraph (c). 

(j) Notifications. (1) Owner/operator 

shall submit notification of 

commencement of construction of any 

equipment which is being constructed 

to comply with the emission limits in 

paragraph (c) of this section. 

(2) Owner/operator shall submit semiannual progress reports on construction 

of any such equipment. 

(3) Owner/operator shall submit 

notification of initial startup of any such 

equipment. 

(k) Equipment operation. At all times, 

owner/operator shall maintain each 

unit, including associated air pollution 

control equipment, in a manner 

consistent with good air pollution 

control practices for minimizing 

emissions. 

(l) Credible Evidence. Nothing in this 

section shall preclude the use, including 

the exclusive use, of any credible 

evidence or information, relevant to 

whether a source would have been in 

compliance with requirements of this 

section if the appropriate performance 

or compliance test procedures or 

method had been performed. 

[FR Doc. 2012–21056 Filed 8–27–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2010–0391; FRL–9719–4] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Pennsylvania; Attainment Plan for the 

Philadelphia-Wilmington, 

Pennsylvania-New Jersey-Delaware 

1997 Fine Particulate Matter 

Nonattainment Area 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving a State 

Implementation Plan (SIP) revision 

submitted by the Commonwealth of 

Pennsylvania on April 12, 2010, as 

amended on August 3, 2012. The SIP 

revision demonstrates attainment of the 

1997 annual fine particulate matter 

(PM2.5) national ambient air quality 

standard (NAAQS) for the PhiladelphiaWilmington, Pennsylvania-New JerseyDelaware (PA-NJ-DE) nonattainment 

area (Philadelphia Area). This 

Pennsylvania SIP revision (herein called 

the ‘‘attainment plan’’) includes the 

Philadelphia Area’s attainment 

demonstration and the motor vehicle 

emission budgets (MVEBs) used for 

transportation conformity purposes in 

Bucks, Chester, Delaware, Montgomery 

and Philadelphia Counties in 

Pennsylvania. The attainment plan also 

includes a base year emissions 

inventory and contingency measures. 

On August 3, 2012, Pennsylvania 

withdrew the analysis of reasonably 

available control measures and 

reasonably available control technology 

(RACM/RACT) from the attainment plan 

because the requirement was suspended 

by a clean data determination for the 

Philadelphia Area. Furthermore, EPA 

has determined that a reasonable further 

progress (RFP) plan is not required 

because Pennsylvania projected that 

attainment of the 1997 PM2.5 NAAQS 

occurred in the Philadelphia Area by 

the attainment date of April 2010. This 

action is being taken in accordance with 

the Clean Air Act (CAA) and the Clean 

Air Fine Particulate Implementation 

Rule (PM2.5 Implementation Rule) 

published on April 25, 2007. 

DATES: This final rule is effective on 

September 27, 2012. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

Number EPA–R03–OAR–2010–0391. All 

documents in the docket are listed in 

the www.regulations.gov Web site. 

Although listed in the electronic docket, 

some information is not publicly 

available, i.e., confidential business 

information (CBI) or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

www.regulations.gov or in hard copy for 

public inspection during normal 

business hours at the Air Protection 

Division, U.S. Environmental Protection 

Agency, Region III, 1650 Arch Street, 

Philadelphia, Pennsylvania 19103. 

Copies of the State submittal are 

available at the Pennsylvania 

Department of Environmental 

Protection, Bureau of Air Quality 

Control, P.O. Box 8468, 400 Market 

Street, Harrisburg, Pennsylvania 17105. 

FOR FURTHER INFORMATION CONTACT: Rose 

Quinto, (215) 814–2182, or by email at 

quinto.rose@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On November 2, 2011 (76 FR 67640), 

EPA published a notice of proposed 

rulemaking (NPR) for the 

Commonwealth of Pennsylvania. The 

NPR proposed approval of the 

Pennsylvania 1997 annual PM2.5

NAAQS attainment plan for the 

Philadelphia Area. 

On November 27, 2009 (74 FR 62251), 

EPA published findings of failure to 

submit a SIP revision that demonstrates 

attainment of the 1997 PM2.5 NAAQS for 

the Philadelphia Area. On April 12, 

2010, the Commonwealth of 

Pennsylvania through the Department of 

Environmental Protection (PADEP) 

submitted a formal SIP revision and on 

June 19, 2010, EPA determined that this 

SIP revision met the requirements for 

completeness found in section 110(k)(1) 

of the CAA. On May 16, 2012 (77 FR 

28782), EPA published a clean data 

determination and determination of 

attainment of the 1997 annual PM2.5

NAAQS by the attainment date of April 

5, 2010. 

On May 12, 2005 (76 FR 70093), EPA 

published the Clean Air Interstate Rule 

(CAIR) that addresses the interstate 

transport requirements of the CAA with 

respect to the 1997 ozone and 1997 

PM2.5 NAAQS. As originally 

promulgated, CAIR required significant 

reductions in emissions of sulfur 

dioxide (SO2) and nitrogen oxides (NOX) 

to limit the interstate transport of these 

pollutants. In 2008, however, the DC 

Circuit Court of Appeals (‘‘the Court’’) 

remanded CAIR back to EPA. See North 

Carolina v. EPA, 550 F.3d 1176. The 

Court found CAIR to be inconsistent 

with the requirements of the CAA, 

North Carolina v. EPA, 531 F.3d 896 

(D.C. Cir. 2008), but ultimately 

remanded the rule to EPA without 

vacatur because it found that ‘‘allowing 

CAIR to remain in effect until it is 

replaced by a rule consistent with [the 

Court’s] opinion would at least 

temporarily preserve the environmental 

values covered by CAIR.’’ See North 

Carolina v. EPA, 550 F.3d at 1178. CAIR 

thus remained in place following the 

remand, and was in place and 

enforceable through the April 5, 2010 

attainment date. In response to the 

Court’s decision, EPA has issued a new 

rule to address interstate transport of 

NOX and SO2 in the Eastern United 

States (i.e., the Transport Rule, also 

known as the Cross-State Air Pollution 

Rule). See 76 FR 48208, August 8, 2011. 

In the Transport Rule, EPA finalized 

regulatory changes to sunset (i.e., 

discontinue) CAIR and the CAIR Federal 

Implementation Plans (FIPs) for control 


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