39938 Federal Register / Vol. 77, No. 130 / Friday, July 6, 2012 / Rules and Regulations 

and alternative transportation systems 

(if applicable). 

(2) The superintendent must complete 

either an environmental assessment 

(EA) or an environmental impact 

statement (EIS) evaluating the effects of 

bicycle use in the park and on the 

specific trail. The superintendent must 

provide the public with notice of the 

availability of the EA and at least 30 

days to review and comment on an EA 

completed under this section. 

(3) The superintendent must complete 

a written determination stating that the 

addition of bicycle use on the existing 

hiking or horse trail is consistent with 

the protection of the park area’s natural, 

scenic and aesthetic values, safety 

considerations and management 

objectives, and will not disturb wildlife 

or park resources. 

(4)(i) If under paragraph (d)(2) of this 

section, the resulting Finding of No 

Significant Impact, Record of Decision 

(ROD), or an amended ROD concludes 

that bicycle use on the specific trail will 

have no significant impacts, the 

superintendent must publish a notice in 

the Federal Register providing the 

public at least 30 days to review and 

comment on the written determination 

required by paragraph (d)(3) of this 

section. After consideration of the 

comments submitted, the 

superintendent must obtain the 

Regional Director’s written approval of 

the determination required by paragraph 

(d)(3) of this section; or 

(ii) If under paragraph (d)(2) of this 

section, the conclusion is that bicycle 

use on the specific trail may have a 

significant impact, the superintendent 

with the concurrence of the Regional 

Director must complete a concise 

written statement for inclusion in the 

project files that bicycle use cannot be 

authorized on the specific trail. 

(e) New trails. This paragraph applies 

to new trails that do not exist on the 

ground and therefore would require trail 

construction activities (such as clearing 

brush, cutting trees, excavation, or 

surface treatment). New trails shall be 

developed and constructed in 

accordance with appropriate NPS 

sustainable trail design principles and 

guidelines. The superintendent may 

develop, construct, and authorize new 

trails for bicycle use after: 

(1) In a developed area, the 

superintendent completes the 

requirements in paragraphs (d)(1) 

through (d)(3) of this section, publishes 

a notice in the Federal Register 

providing the public at least 30 days to 

review and comment on the written 

determination required by paragraph 

(d)(3) of this section, and after 

consideration of the comments 

submitted, obtains the Regional 

Director’s written approval of the 

determination required by paragraph 

(d)(3) of this section; or 

(2) Outside of a developed area, the 

superintendent completes the 

requirements in paragraphs (d)(1), (2), 

and (3) of this section; obtains the 

Regional Director’s written approval of 

the determination required by paragraph 

(d)(3) of this section; and promulgates a 

special regulation authorizing the 

bicycle use. 

(f) Closures and other use restrictions. 

A superintendent may limit or restrict 

or impose conditions on bicycle use or 

may close any park road, parking area, 

administrative road, trail, or portion 

thereof to bicycle use, or terminate such 

condition, closure, limit or restriction 

after: 

(1) Taking into consideration public 

health and safety, natural and cultural 

resource protection, and other 

management activities and objectives; 

and 

(2) Notifying the public through one 

or more methods listed in § 1.7(a) of this 

chapter. 

(g) Other requirements. (1) A person 

operating a bicycle on any park road, 

parking area, administrative road or 

designated trail is subject to all sections 

of this part that apply to an operator of 

a motor vehicle, except §§ 4.4, 4.10, 

4.11, 4.14, and 4.15. 

(2) Unless specifically addressed by 

regulations in this chapter, the use of a 

bicycle within a park area is governed 

by State law. State law concerning 

bicycle use that is now or may later be 

in effect is adopted and made a part of 

this section. 

(h) Prohibited acts. The following are 

prohibited: (1) Bicycle riding off of park 

roads and parking areas, except on 

administrative roads and trails that have 

been authorized for bicycle use. 

(2) Possessing a bicycle in a 

wilderness area established by Federal 

statute. 

(3) Operating a bicycle during periods 

of low visibility, or while traveling 

through a tunnel, or between sunset and 

sunrise, without exhibiting on the 

operator or bicycle a white light or 

reflector that is visible from a distance 

of at least 500 feet to the front and with 

a red light or reflector that is visible 

from at least 200 feet to the rear. 

(4) Operating a bicycle abreast of 

another bicycle except where authorized 

by the superintendent. 

(5) Operating a bicycle while 

consuming an alcoholic beverage or 

carrying in hand an open container of 

an alcoholic beverage. 

(6) Any violation of State law adopted 

by this section. 

Dated: June 20, 2012. 

Rachel Jacobson, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. 2012–16466 Filed 7–5–12; 8:45 am] 

BILLING CODE 4312–52–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2012–0144; FRL–9695–4] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Maryland; Regional Haze State 

Implementation Plan 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving a revision to 

the Maryland State Implementation Plan 

(SIP) submitted by the State of 

Maryland, through the Maryland 

Department of the Environment (MDE), 

on February 13, 2012. This action is 

being taken in accordance with the 

requirements of the Clean Air Act (CAA) 

and EPA’s rules for states to prevent any 

future and remedy any existing 

anthropogenic impairment of visibility 

in mandatory Class I areas through a 

regional haze program. EPA is also 

approving this revision as meeting the 

infrastructure requirements relating to 

visibility protection for the 1997 8-hour 

ozone National Ambient Air Quality 

Standard (NAAQS) and the 1997 and 

2006 fine particulate matter (PM2.5) 

NAAQS. 

DATES: This final rule is effective on 

August 6, 2012. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

Number EPA–R03–OAR–2012–0144. 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 


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Federal Register / Vol. 77, No. 130 / Friday, July 6, 2012 / Rules and Regulations 39939 

1EPA promulgated the RHR to address regional 

haze on July 1, 1999 (64 FR 35714). The RHR 

revised existing visibility regulations to integrate 

into the regulation provisions addressing regional 

haze impairment and established a comprehensive 

visibility protection program for Class I areas. The 

requirements for regional haze, found at 40 CFR 

51.308 and 51.309, are included in EPA’s visibility 

protection regulations at 40 CFR 51.300–51.309. 

2Md. Code Ann., Environment Title 2, Ambient 

Air Quality Control, Subtitle 10 Healthy Air Act, 

Section 2–1001–2–1005 (2012). See also COMAR 

26.11.27. 

3See Guidance for Setting Reasonable Progress 

Goals Under the Regional Haze Program, p. 3–1 

(June 1, 2007). EPA’s Reasonable Progress Guidance 

is also available at www.epa.gov/ttn/caaa/t1/ 

memoranda/reasonable_progress_guid071307.pdf. 

4 ‘‘In deciding what amount of emission 

reductions is appropriate in setting the RPG, you 

(the State) should take into account that the longterm goal of no manmade impairment encompasses 

several planning periods. It is reasonable for you to 

defer reductions to later planning periods in order 

to maintain a consistent glidepath toward the longterm goals.’’ Reasonable Progress Guidance at p. 1– 

4. 

available at the Maryland Department of 

the Environment, 1800 Washington 

Boulevard, Suite 705, Baltimore, 

Maryland 21230. 

FOR FURTHER INFORMATION CONTACT: 

Jacqueline Lewis, (215) 814–2037, or by 

email at lewis.jacqueline@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

Throughout this document, whenever 

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

EPA. On February 28, 2012 (77 FR 

11839), EPA published a notice of 

proposed rulemaking (NPR) for the State 

of Maryland. The NPR proposed 

approval of Maryland’s Regional Haze 

Plan for the first implementation period 

through 2018. The formal SIP revision 

(MDE SIP Number 12–01) was 

submitted by the State of Maryland on 

February 13, 2012. EPA proposed to 

approve this revision since it assures 

reasonable progress toward the national 

goal of achieving natural visibility 

conditions in Class I areas for the first 

implementation period. EPA also 

proposed to approve this SIP revision as 

meeting the infrastructure requirements 

of section 110(a)(2)(D)(i)(II) and (a)(2)(J) 

of the CAA, relating to visibility 

protection for the 1997 8-hour ozone 

NAAQS and the 1997 and 2006 PM2.5

NAAQS. 

II. Summary of SIP Revision 

The revision includes a long term 

strategy with enforceable measures 

ensuring reasonable progress towards 

meeting the reasonable progress goals 

for the first planning period through 

2018. Maryland’s Regional Haze Plan 

contains the emission reductions 

needed to achieve Maryland’s share of 

emission reductions agreed upon 

through the regional planning process. 

Other specific requirements of the CAA 

and EPA’s Regional Haze Rule (RHR) 1

and the rationale for EPA’s proposed 

action are explained in the NPR and 

will not be restated here. Timely 

adverse comments were submitted on 

EPA’s February 28, 2012 NPR. A 

summary of the comments and EPA’s 

responses are provided in Section III of 

this document. As discussed more fully 

in the Response to Comments below, 

EPA is also clarifying herein its 

approval of the BART determinations 

for sulfur dioxide (SO2), nitrogen oxides 

(NOX), and particulate matter (PM) for 

Unit 25 at the NewPage Luke Pulp and 

Paper Mill located in Allegany County 

in Luke, Maryland (NewPage Luke Mill) 

which we are approving into the 

Maryland SIP. 

III. Summary of Public Comments and 

EPA Response 

EPA received a number of comments 

on our proposal to approve Maryland’s 

Regional Haze SIP submittal. Comments 

were received from the Luke Paper 

Company and the U.S. Forest Service. A 

joint letter from the Sierra Club and the 

National Parks Conservation 

Association (NPCA) was also received. 

The U.S. Forest Service acknowledged 

the work that the State of Maryland has 

accomplished and encouraged the State 

of Maryland to continue to reduce 

regional haze. The complete comments 

submitted by all of the aforementioned 

entities (hereafter referred to as ‘‘the 

Commenter’’) are provided in the docket 

(EPA–R03–OAR–2012–0144) for today’s 

final action. A summary of the 

comments and EPA’s responses are 

provided below. 

Comment 1: The Commenter 

recommended that emission controls for 

a coal cleaning facility and three electric 

generating units (EGUs) which are not 

BART subject sources in Maryland 

should be evaluated under the 

reasonable progress provisions of the 

RHR as was done in Wyoming and 

North Dakota. The Commenter stated 

that initially the coal cleaning facility 

was identified as BART-eligible and 

modeling for this source demonstrated 

that it may impact visibility at one or 

more Class I areas located in West 

Virginia (e.g., Dolly Sods Wilderness 

Area and Otter Creek Wilderness Area.) 

This source was subsequently found not 

to be subject-to-BART. 

Response 1: EPA finds Maryland’s 

decision not to further evaluate controls 

at the coal cleaning facility and the 

three EGUs under the reasonable 

progress provisions of the RHR to be 

reasonable. First, as discussed in the 

NPR, two of the EGUs are subject to 

Maryland’s Healthy Air Act (HAA) 2

which requires significant emission 

reductions at those EGUs. More 

generally, as explained below, Maryland 

followed a specific strategy for 

addressing reasonable progress. 

Pursuant to EPA’s Guidance for Setting 

Reasonable Progress Goals under the 

Regional Haze Program (Reasonable 

Progress Guidance), states may identify 

key pollutants and source categories for 

the first planning period.3 The regional 

planning organizations VISTAS and 

MANE–VU and the State of Maryland 

determined that the key pollutant which 

contributes to visibility impairment in 

the VISTAS and MANE–VU Class I 

areas is sulfate. Therefore, in accordance 

with EPA’s Reasonable Progress 

Guidance,4 VISTAS, MANE–VU and 

Maryland focused on SO2 for the first 

planning period. To ensure reasonable 

progress for the first planning period, 

MANE–VU recommended and 

Maryland agreed to pursue the 

following emission reductions: Timely 

implementation of BART; 90 percent 

reduction in SO2 emissions from the 167 

highest visibility impacting EGUs; a 

reduction in the sulfur content of 

distillate and residual oil; and 

continued evaluation of other emission 

reduction strategies. Section III.B.4. of 

the NPR discusses how Maryland met 

the 90 percent reduction in SO2

emissions from the 167 highest visibility 

impacting EGUs and the equivalent 

reduction to account for the reduced 

sulfur content of distillate and residual 

oil. During the consultation process, 

Maryland provided West Virginia with 

the intended emission reductions 

resulting from their long term strategy 

for sources that are in the Area of 

Influence for Dolly Sods which 

included emission reductions projected 

to be achieved by the HAA. After 

review, West Virginia did not request 

additional emission reductions from 

neighboring states for the first planning 

period other than what has already been 

planned. Therefore, EPA does not agree 

that additional controls beyond BART 

and the HAA should be evaluated for 

these particular sources for reasonable 

progress. 

Comment 2: The Commenter 

questioned the BART-eligibility of a 

coal cleaning facility in Maryland 

because Maryland originally identified 

this source as BART-eligible. The 

Commenter further noted that control 

technologies available in 1977 differ 

from those available today, so a BART 

analysis would be beneficial. In 

addition, the Commenter suggested that 


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5Chalk Point Unit 3 is the sole unit at an EGU 

which is a BART-eligible unit not covered by the 

HAA because it is not a coal-fired EGU. However, 

Chalk Point Unit 3 is required to operate on natural 

gas during 75% of its annual heat input and is 

required to operate on natural gas during 95% of 

the ozone season heat input pursuant to a consent 

decree with MDE which was effective on March 10, 

2011 and which has been submitted to EPA for 

approval into the Maryland SIP. See 77 FR 26438 

(May 4, 2012) (providing direct final rulemaking to 

approve consent decree limits for Chalk Point Unit 

3 into Maryland SIP). EPA expects significant 

reductions of NOX, SO2, and PM from the required 

combustion of natural gas instead of combustion of 

fuel oil at Chalk Point Unit 3. Id. 

a permit condition to shut down the 

coal cleaning facility by the end of 2014 

would address the Commenter’s 

concerns because the facility indicated 

that it did not plan to operate beyond 

2014. 

Response 2: EPA disagrees with the 

Commenter’s assertions that the 

identified Maryland coal cleaning 

facility should be subject to BART. EPA 

agrees with Maryland that the source 

was not in existence by August 7, 1977 

because this source did not meet EPA’s 

definition of ‘‘in existence’’ at 40 CFR 

51.301. EPA did not grant approval of 

the coal cleaning construction 

application until February 23, 1978. 

Therefore, the coal cleaning facility was 

not in existence prior to 1977 and is not 

a BART-eligible source. Additionally, 

EPA disagrees that any permit 

requirements for shutdown are 

necessary or required for this particular 

source. The Federal regional haze 

program does not require existing 

sources to shutdown. While the facility 

may intend to cease operations in the 

near future, Maryland was not required 

to make such a shutdown enforceable in 

its Regional Haze SIP. 

Comment 3: The Commenter further 

stated that Maryland’s discussion on 

achievement of reasonable progress 

goals focused on the contribution to 

emission reductions of sulfur only and 

not NOX. 

Response 3: EPA disagrees with the 

Commenter’s assertion that Maryland 

was required to focus on the 

contribution to emission reductions of 

NOX in its Regional Haze SIP. As 

discussed in EPA’s Response to 

Comment 2, VISTAS, MANE–VU, and 

Maryland determined that the key 

pollutant contributing to visibility 

impairment in the MANE–VU and 

VISTAS Class I areas is sulfate. 

Maryland accordingly focused on SO2

emission reductions for the first 

planning period, an approach that EPA 

believes was appropriate given the 

technical analyses done by VISTAS and 

MANE–VU. As discussed in the NPR, 

the State of Maryland does not have a 

Class 1 area and is not required to 

establish reasonable progress goals such 

as NOX emission reductions. 

Comment 4: The Commenter 

recommended two different control 

technologies for Unit 26 at the NewPage 

Luke Mill that combined would reduce 

NOX emissions at the Mill by 60 to 90 

percent. 

Response 4: Although Unit 26 at the 

NewPage Luke Mill is mentioned in the 

BART analysis done by the facility, Unit 

26 is not a BART-eligible source. The 

owner of the NewPage Luke Mill 

correctly provided a BART analysis for 

the BART-eligible Unit 25, and 

Maryland determined BART for Unit 25. 

As discussed more fully in EPA’s 

Response to Comments 2 and 3 above, 

EPA does not agree that any further 

controls for NOX are needed for 

reasonable progress at any source at the 

NewPage Luke Mill at this time. 

Comment 5: The Commenter stated 

that EPA mischaracterized the Luke 

Paper Company’s commitment in the 

letter dated October 31, 2007 for BART 

controls at the NewPage Luke Mill. The 

Commenter stated that EPA noted in its 

NPR that Luke Paper Company 

committed to installing either a spray 

dryer absorber or a circulating dry 

scrubber resulting in approximately 90 

percent emission reductions in SO2 and 

to year round operation of the existing 

selective non-catalytic reduction (SNCR) 

control at Unit 25 for NOX control as 

BART for the BART subject Unit 25 at 

the NewPage Luke Mill. The Commenter 

asserted that its October 31, 2007 letter 

committed to reduce emissions by 90 

percent for SO2 without specifying 

controls, to reduce NOX emissions to 0.4 

pounds per million British thermal 

units (lb/MMbtu), and to control PM 

emissions to 0.07 lb/MMbtu for Unit 25 

at the NewPage Luke Mill on a yearly 

basis. 

Response 5: EPA agrees with the 

Commenter that Maryland’s Regional 

Haze SIP submittal and our approval of 

the submittal requires the NewPage 

Luke Mill at Unit 25 to meet BART 

limits of 0.44 lb/MMbtu for SO2, a 

rolling 30-day emission rate of 0.40 lb/ 

MMbtu for NOX, and 0.07 lb/MMbtu for 

PM. Although Maryland’s BART 

determination was based on the use of 

certain controls, BART is an emission 

limit. 40 CFR 51.301. In our NPR, we 

inadvertently suggested that the 

Maryland Regional Haze SIP required 

the use of specific controls. We agree 

with the Commenter that the Maryland 

Regional Haze SIP requires the NewPage 

Luke Mill to meet the BART emission 

limits noted above but does not require 

the facility to install specific controls at 

Unit 25 to meet these limits. 

Comment 6: The Commenter stated 

that Maryland failed to meet the 

requisite demonstration that the 

distribution of emission reductions will 

be similar to that under the sourcespecific BART and failed to conduct 

dispersion modeling to show that the 

Maryland HAA results in greater 

reasonable progress toward achieving 

natural baseline visibility conditions in 

the areas protected by the RHR. 

Response 6: EPA disagrees with the 

Commenter. EPA discussed in the NPR 

how Maryland’s HAA was an acceptable 

alternative to BART for EGUs and 

discussed how the HAA met the 

requirements for a BART alternative 

program in 40 CFR 51.308(e)(2). EPA 

finds that the distribution of emission 

reductions in Maryland at EGUs from 

the HAA is comparable to and not 

substantially different from emission 

reductions under BART at EGUs. The 

emission reductions from the HAA are 

discussed in detail in the NPR. 

Maryland’s HAA covers all of the 

BART-subject EGU sources and also 

includes two EGUs which are not 

BART-subject sources. With the 

exception of a single unit at one EGU, 

the Maryland HAA covers more units at 

each source than just BART-eligible 

units as illustrated in Table 5 of Section 

III.B.5 of the NPR.5 The HAA does not 

allow facilities to obtain out-of-state 

emission allowances in lieu of adding 

pollution controls locally. All of the 

emission reductions pursuant to the 

HAA are at EGUs in Maryland which 

are located in the eastern portion of 

Maryland around Baltimore and 

Washington, DC in the same physical 

location as BART-eligible EGUs. Table 5 

of Section III.B.5 of the NPR supports 

the conclusion that the distribution of 

emissions is not substantially different 

under the HAA than under BART 

because the HAA includes all of the 

BART sources and all of the BARTeligible units with the exception of 

Chalk Point Unit 3. Because the 

Maryland HAA includes all the BARTsubject EGU sources, the distance from 

HAA sources to Class I areas is identical 

to the distance from BART-subject EGU 

sources to Class I areas. 

EPA provided an analysis supporting 

emission reductions from the HAA 

exceeding presumptive BART in the 

NPR. The factors used by Maryland to 

develop the HAA emission limitations 

incorporate criteria used in the RHR as 

discussed in the NPR in greater detail. 

As discussed in Section III.B.5 of the 

NPR, Maryland did a comparison of 

HAA emission limits for 13 of the 15 

units subject to the HAA which resulted 

in a surplus of SO2 and NOX reductions 

compared to presumptive BART 

because the HAA applies to more units 


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than BART. Because the BART-subject 

sources are all HAA-subject sources, the 

distribution of emission reductions is 

not substantially different than under 

BART. As discussed in the NPR and in 

Maryland’s Regional Haze SIP 

submittal, the alternative measure (i.e., 

the HAA) results in greater emission 

reductions than BART and therefore 

achieves greater reasonable progress. 

See 40 CFR 51.308(e)(3). Because the 

distribution of emissions is not 

substantially different, dispersion 

modeling is not required in 40 CFR 

51.308(e)(3). 

Comment 7: The Commenter stated 

that Maryland has not demonstrated 

how the emissions reductions resulting 

from the Maryland HAA are surplus to 

those reductions resulting from 

measures adopted to meet other 

requirements of the CAA as of the 

baseline date of this SIP, as required by 

EPA’s RHR and the infrastructure 

requirements related to visibility 

protection for the 1997 8-Hour Ozone 

NAAQS and the 1997 and 2006 PM2.5

NAAQS. 

Response 7: Because Maryland is 

using the HAA as an alternative to 

BART for its EGU BART-eligible sources 

as permitted by the RHR and as 

discussed in the NPR, EPA agrees with 

Maryland’s analysis that emission 

reductions from the 13 HAA units will 

result in emission reductions that are 

surplus to the baseline date of the SIP. 

In promulgating the RHR in 1999, EPA 

explained that the ‘‘baseline date of the 

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

the emissions inventories on which the 

SIP relies,’’ which is ‘‘defined as 2002 

for regional haze purposes.’’ See 64 FR 

35742, July 1, 1999, and 70 FR 39143, 

July 6, 2005. Any measure adopted after 

2002 is accordingly ‘‘surplus’’ under 40 

CFR 51.308(e)(2)(iv). As discussed in 

the NPR, Maryland’s use of the HAA 

(which was adopted after 2002) as an 

alternative to BART for EGUs is in 

accordance with and satisfies the 

requirements in 40 CFR 51.308(e)(2) for 

BART alternatives, including the 

requirement that the emission 

reductions be surplus to the baseline 

date of the SIP. The NPR also discusses 

how Maryland developed the emission 

reductions required by the HAA. EPA is 

not restating that analysis here. 

Also, EPA’s final approval of 

Maryland’s Regional Haze SIP herein 

will satisfy the infrastructure 

requirements of CAA section 

110(a)(2)(D)(i)(II) and (a)(2)(J) for the 

1997 8-hour Ozone NAAQS and the 

1997 and 2006 PM2.5 NAAQS. EPA 

disagrees with the Commenter’s 

suggestion that the emission reductions 

from the HAA are not surplus solely 

because the reductions are part of 

Maryland’s Regional Haze SIP which 

satisfies CAA infrastructure elements in 

section 110(a)(2)(D) and (J) of the CAA. 

Section 110(a)(2) of the CAA does not 

impose specific requirements on 

particular sources, and therefore surplus 

reduction is not at issue. 

Comment 8: The Commenter stated 

that the BART analyses submitted by 

Constellation Energy for Wagner Unit 3 

and Crane Unit 2 are deeply flawed and 

failed to identify correctly BART 

technology and BART limits for those 

units. The Commenter also stated that 

Maryland improperly compared HAA 

emissions to those under presumptive 

BART and that Maryland must redo its 

analysis and compare emissions 

reductions under the HAA to those 

produced by full source-specific BART 

analyses. 

Response 8: The primary requirement, 

as specified in CAA section 169A, is for 

sources to procure, install, and operate 

BART. In some cases this requirement is 

met with an analysis of potential 

controls considering five factors given 

in EPA’s RHR. EPA has interpreted this 

requirement to be met if an alternative 

set of emission limits are established 

which mandate greater reasonable 

progress toward visibility improvement 

than direct application of BART on a 

source-by-source basis. In promulgating 

the RHR, EPA stated that to demonstrate 

that emission reductions of an 

alternative program would result in 

greater emission reductions, ‘‘the State 

must estimate the emission reductions 

that would result from the use of BARTlevel controls. To do this, the State 

could undertake a source-specific 

review of the sources in the State 

subject to BART, or it could use a 

modified approach that simplifies the 

analysis.’’ 64 FR 35742 (July 1, 1999). 

In guidance published October 13, 

2006, EPA offered further clarification 

for states for assessing alternative 

strategies, in particular regarding the 

benchmark definition of BART to use in 

judging whether the alternative is better. 

See 71 FR 60619. In this rulemaking, 

EPA stated in the preamble that the 

presumptive BART levels given in the 

BART guidelines would be a suitable 

baseline against which to compare 

alternative strategies where the 

alternative has been designed to meet a 

requirement other than BART. 71 FR at 

60619; see also 40 CFR 

51.308(e)(2)(i)(C). Maryland’s analysis is 

fully consistent with EPA’s conclusions 

in this rulemaking. 

While EPA recognizes that a case-bycase BART analysis may result in 

emission limits more stringent than the 

presumptive limits, the presumptive 

limits are reasonable and appropriate for 

use in assessing an alternative emissions 

reductions scenario such as the HAA 

when comparing it to the BART 

scenario. See 71 FR 60619 (stating ‘‘the 

presumptions represent a reasonable 

estimate of a stringent case BART * * * 

because * * * they would be applied 

across the board to a wide variety of 

units with varying impacts on visibility, 

at power plants of varying size and 

distance from Class I areas’’). 

Maryland’s HAA was developed to 

bring Maryland into attainment with the 

NAAQS for ozone and PM2.5 by CAA 

deadlines and to reduce atmospheric 

deposition of nitrogen to the 

Chesapeake Bay and other Maryland 

waters. The HAA imposes limitations 

on SO2, NOX, and mercury emissions 

from coal-fired EGUs in Maryland. 

Although Maryland is also now using 

the HAA as an alternative to BART for 

its EGU BART-eligible sources as 

permitted pursuant to EPA’s RHR (40 

CFR 51.308(e)(2)), the use of 

presumptive limits is appropriate. EPA 

agrees with Maryland’s analysis that 

emission reductions from the thirteen 

HAA units will result in emission 

reductions that will provide greater 

reasonable progress than would BART 

alone as described more fully in the 

NPR. 

Regarding the units at H.A. Wagner 

and C.P. Crane, EPA notes that H.A. 

Wagner Units 2 and 3 and C.P. Crane 

Units 1 and 2 are subject to the HAA 

(Maryland’s alternative BART program) 

while only C.P. Crane Unit 2 and H.A. 

Wagner Unit 3 are BART-eligible units. 

Because these additional units (as well 

as units at Brandon Shores and 

Dickerson) are covered under the HAA, 

significantly more emission reductions 

are achieved by the HAA than through 

application of presumptive BART as 

discussed in Section III.B.5 in the NPR. 

Comment 9: The Commenter stated 

that Maryland must ensure that 

reasonable progress goals are set so as to 

put the state on the glidepath to 

attainment of baseline natural visibility 

conditions in all affected Class I areas 

by 2064. For at least the Dolly Sods 

Wilderness, the Commenter stated that 

it did not appear that Maryland has 

done so and questioned what date the 

Class I areas would attain. 

Response 9: EPA disagrees with the 

Commenter. As stated in the NPR, 

because Maryland does not have a Class 

I area, it is not required to establish 

reasonable progress goals. However, 

Maryland participated in conference 

calls and a meeting with West Virginia 

during the consultation process. They 

discussed the sources and emissions 

reductions expected within the area of 


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39942 Federal Register / Vol. 77, No. 130 / Friday, July 6, 2012 / Rules and Regulations 

6CAA section 110(a)(2)(J) states that the plan 

must meet the applicable requirements for visibility 

protection. EPA would not expect the establishment 

of a new primary NAAQS to change the applicable 

visibility protection and regional haze program 

requirements under Part C of Title I of the CAA. 

Thus, EPA does not consider there to be new 

applicable visibility protection obligations under 

CAA section 110(a)(2)(J) as a result of the 1997 

ozone NAAQS revision or the 1997 and 2006 

p.m.2.5 NAAQS revisions. We do agree, however, 

that Maryland has met the requirements of CAA 

section 110(a)(2)(J) by submitting an approvable 

regional haze SIP. 

influence for Dolly Sods. Subsequently, 

based on the planned measures in 

neighboring states, West Virginia 

decided for the first planning period not 

to ask neighboring states for additional 

emissions reductions. Previously, EPA 

approved West Virginia’s reasonable 

progress goals for the Dolly Sods Class 

I area. See 77 FR 16932 (March 23, 

2012). Therefore, EPA disagrees with 

the Commenter and confirms that no 

such further analysis regarding the 

glidepath to attainment is needed. 

Comment 10: The Commenter stated 

that EPA lacked CAA statutory authority 

to allow Maryland to use the HAA as an 

alternative to source-specific BART. 

Response 10: EPA disagrees with the 

Commenter regarding EPA’s clear 

statutory authority. EPA’s authority to 

establish non-BART alternatives in the 

regional haze program and the specific 

methodology in 40 CFR 51.308(e)(2) for 

assessing such alternatives have been 

previously challenged and upheld by 

the United States Court of Appeals for 

the District of Columbia Circuit. In the 

first case challenging the provisions in 

the RHR allowing for states to adopt 

alternative programs in lieu of BART, 

the court affirmed our interpretation of 

section 169A(b)(2) of the CAA as 

allowing for alternatives to BART where 

those alternatives will result in greater 

reasonable progress than BART. Center 

for Energy and Economic Development 

v. EPA, 398 F.3d 653, 660 (DC Cir. 2005) 

(finding reasonable EPA’s interpretation 

of CAA section 169(a)(2) as requiring 

BART only as necessary to make 

reasonable progress). In the second case, 

Utility Air Regulatory Group v. EPA, 471 

F.3d 1333 (DC Cir. 2006), the court 

specifically upheld our determination 

that states could rely on the Clean Air 

Interstate Rule (CAIR) as an alternative 

program to BART for EGUs in the CAIRaffected states. The court concluded that 

EPA’s two-pronged test for determining 

whether an alternative program achieves 

greater reasonable progress was a 

reasonable one and also agreed with 

EPA that nothing in the CAA required 

EPA to ‘‘impose a separate technology 

mandate for sources whose emissions 

affect Class I areas, rather than piggybacking on solutions devised under 

other statutory categories, where such 

solutions meet the statutory 

requirements.’’ Id. at 1340. We do not 

agree, therefore, that EPA lacks statutory 

authority for 40 CFR 51.308(e)(2) which 

permits states to include in a SIP an 

alternative trading program that 

provides for greater reasonable progress 

than BART in place of source-specific 

BART. 

IV. Final Action 

EPA is approving a revision to the 

Maryland SIP submitted on February 13, 

2012 by the State of Maryland through 

MDE that addresses regional haze for 

the first implementation period. In 

submitting the plan, Maryland also 

stated that the Regional Haze SIP 

submission meets the relevant and 

applicable obligations related to 

visibility pursuant to section 110(a)(2) 

of the CAA, including, but not limited 

to, section 110(a)(2)(D)(i)(II) and (a)(2)(J) 

of the CAA, for the 1997 8-Hour Ozone 

NAAQS and the 1997 and 2006 PM2.5

NAAQS for Maryland. EPA has 

determined that the Maryland Regional 

Haze SIP contains the emission 

reductions needed to achieve 

Maryland’s share of emission reductions 

agreed upon through the regional 

planning process. Furthermore, 

Maryland’s Regional Haze Plan ensures 

that emissions from the state will not 

interfere with the reasonable progress 

goals for neighboring states’ Class I areas 

consistent with the requirements of the 

visibility prong of section 

110(a)(2)(D)(i)(II) of the CAA. EPA is 

approving this SIP revision as meeting 

the requirements of the regional haze 

program, CAA section 110(a)(2)(J),6 and 

the infrastructure SIP requirements of 

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

to visibility protection for the 1997 8- 

Hour Ozone NAAQS and the 1997 and 

2006 PM2.5 NAAQS. 

V. Statutory and Executive Order 

Reviews 

A. General Requirements 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable Federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely approves state law as meeting 

Federal requirements and does not 

impose additional requirements beyond 

those imposed by state law. For that 

reason, this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

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

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

B. Submission to Congress and the 

Comptroller General 

The Congressional Review Act, 5 

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

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 


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Federal Register / Vol. 77, No. 130 / Friday, July 6, 2012 / Rules and Regulations 39943 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

C. Petitions for Judicial Review 

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

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by September 4, 2012. 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 

pertaining to Maryland’s Regional Haze 

Plan for the first implementation period, 

through 2018 may not be challenged 

later in proceedings to enforce its 

requirements. See section 307(b)(2) of 

the CAA. 

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: June 13, 2012. 

W.C. Early, 

Acting Regional Administrator, Region III. 

Therefore, 40 CFR part 52 is amended 

as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart V—Maryland 

■ 2. In § 52.1070, the table in paragraph 

(e) is amended by adding the entry for 

the Maryland Regional Haze Plan at the 

end of the table to read as follows: 

§ 52.1070 Identification of plan. 

* * * * * 

(e) * * * 

Name of non-regulatory SIP 

revision Applicable geographic area State submittal date EPA approval date Additional explanation 

*******

Maryland Regional Haze Plan ........ Statewide ....................................... 2/13/12 7/6/2012 [Insert page number 

where the document begins].

[FR Doc. 2012–16417 Filed 7–5–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R05–OAR–2011–0598; FRL–9683–6] 

Approval and Promulgation of Air 

Quality Implementation Plans; Illinois; 

Regional Haze 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving revisions to 

the Illinois State Implementation Plan, 

submitted on June 24, 2011, addressing 

regional haze for the first 

implementation period. EPA received 

comments disputing its proposed 

finding regarding best available retrofit 

technology, but EPA continues to 

believe that Illinois’ plan limits power 

plant emissions as well as would be 

achieved by directly requiring best 

available retrofit technology. Therefore, 

EPA finds that the Illinois regional haze 

plan satisfactorily addresses Clean Air 

Act section 169A and Regional Haze 

Rule requirements for states to remedy 

any existing and prevent future 

anthropogenic impairment of visibility 

at mandatory Class I areas. EPA is also 

approving two state rules and 

incorporating two permits into the state 

implementation plan. 

DATES: This final rule is effective on 

August 6, 2012. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R05–OAR–2011–0598. All 

documents in the docket are listed on 

the www.regulations.gov web site. 

Although listed in the index, some 

information is not publicly available, 

i.e., Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

www.regulations.gov or in hard copy at 

the Environmental Protection Agency, 

Region 5, Air and Radiation Division, 77 

West Jackson Boulevard, Chicago, 

Illinois 60604. This facility is open from 

8:30 AM to 4:30 PM, Monday through 

Friday, excluding Federal holidays. We 

recommend that you telephone John 

Summerhays, Environmental Scientist, 

at (312) 886–6067 before visiting the 

Region 5 office. 

FOR FURTHER INFORMATION CONTACT: John 

Summerhays, Environmental Scientist, 

Attainment Planning and Maintenance 

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

Environmental Protection Agency, 

Region 5, 77 West Jackson Boulevard, 

Chicago, Illinois 60604, (312) 886–6067, 

summerhays.john@epa.gov. 

SUPPLEMENTARY INFORMATION: This 

supplementary information section is 

arranged as follows: 

I. Synopsis of Proposed Rule 

II. Comments and Responses 

III. What action is EPA taking? 

IV. Statutory and Executive Order Reviews 

I. Synopsis of Proposed Rule 

Illinois submitted a plan on June 24, 

2011, to address the requirements of 

Clean Air Act section 169A and the 

Regional Haze Rule, as codified in Title 

40 Code of Federal Regulations Part 

51.308 (40 CFR 51.308). 

EPA published a notice of proposed 

rulemaking evaluating Illinois’ 

submittal on January 26, 2012, at 77 FR 

3966. This notice described the nature 

of the regional haze problem and the 

statutory and regulatory background for 

EPA’s review of Illinois’ regional haze 

plan. The notice provided a lengthy 

delineation of the requirements that 

Illinois intended to meet, including 

requirements for mandating BART, 

consultation with other states in 

establishing goals representing 

reasonable progress in mitigating 

anthropogenic visibility impairment, 

and adoption of limitations as necessary 

to implement a long-term strategy for 

reducing visibility impairment. 

Of particular interest were EPA’s 

findings regarding BART. States are 

required to address the BART 


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