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[Federal Register Volume 79, Number 45 (Friday, March 7, 2014)]
[Rules and Regulations]
[Pages 12944-12954]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-03854]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2013-0227; FRL-9906-93-Region 6]

Approval and Promulgation of Air Quality Implementation Plans; 
Oklahoma; Regional Haze and Interstate Transport Affecting Visibility; 
State Implementation Plan Revisions; Revised BART Determination for 
American Electric Power/Public Service Company of Oklahoma Northeastern 
Power Station Units 3 and 4

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to approve revisions to the Oklahoma State Implementation Plan 
(SIP), submitted by the Oklahoma Department of Environmental Quality 
(ODEQ) to EPA on June 20, 2013, which address revised Best Available 
Retrofit Technology (BART) requirements for sulfur dioxide 
(SO2) and oxides of nitrogen (NOX) for Units 3 
and 4 of the American Electric Power/Public Service Company of Oklahoma 
(AEP/PSO) Northeastern Power Station in Rogers County, Oklahoma. The 
revisions also address the requirements of the Clean Air Act (CAA) 
concerning non-interference with programs to protect visibility in 
other states.

DATES: This final rule will be effective April 7, 2014.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R06-OAR-2013-0227. All documents in the docket are listed in 
the http://www.regulations.gov index. Although listed in the index, 
some information is not publicly available, e.g., Confidential Business 
Information or other information the disclosure of which is restricted 
by statute. Certain other material, such as copyrighted material, will 
be publicly available only in hard copy. Publicly available docket 
materials are available either electronically in http://www.regulations.gov or in hard copy at the Air Planning Section (6PD-
L), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, 
Dallas, Texas 75202-2733. The file will be made available by 
appointment for public inspection in the Region 6 FOIA Review Room 
between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal 
holidays. Contact the person listed in the FOR FURTHER INFORMATION 
CONTACT paragraph below or Mr. Bill Deese at 214-665-7253 to make an 
appointment. If possible, please make the appointment at least two 
working days in advance of your visit. A 15 cent per page fee will be 
charged for making photocopies of documents. On the day of the visit, 
please check in at the EPA Region 6 reception area on the seventh floor 
at 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733.

FOR FURTHER INFORMATION CONTACT: Mr. Terry Johnson (214) 665-2154, 
email johnson.terry@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.

Table of Contents

I. What is the background for this action?
II. What final action is EPA taking?
III. Response to Comments
IV. Statutory and Executive Order Reviews

I. What is the background for this action?

    The background for today's final rule is discussed in detail in our 
August 21, 2013 proposal (see 78 FR 51686). The comment period was open 
for 30 days, and 273 comments were received, including five comment 
letters opposed to the proposed action.

II. What final action is EPA taking?

    We are approving Oklahoma's June 20, 2013 SIP revision submittal 
(``Oklahoma RH SIP revision''), which provides a revised BART 
determination for Units 3 and 4 of AEP/PSO's Northeastern Power Station 
with accompanying enforceable documentation. This revised 
SO2 BART determination includes the following emission 
control requirements and

[[Page 12945]]

compliance schedules: (1) By January 31, 2014, the facility will comply 
with an interim SO2 emission limit of 0.65 lb/MMBtu at each 
unit individually on a 30-day rolling average basis, with an additional 
SO2 limit of 3,104 lb/hr per unit on a 30-day rolling 
average basis; (2) by December 31, 2014, the facility will comply with 
a reduced interim SO2 emission limit of 0.60 lb/MMBtu per 
unit on a 12-month rolling average basis, with an additional 25,097 tpy 
combined cap for Units 3 and 4 on a 12-month rolling basis; (3) the 
facility will shut down one of the subject units (either Unit 3 or Unit 
4) no later than April 16, 2016; (4) the facility will install and 
operate a dry sorbent injection (DSI) system on the unit that remains 
in operation past April 16, 2016; (5) the unit remaining in operation 
will comply with an SO2 emission limit of 0.40 lb/MMBtu on a 
30-day rolling average basis from April 16, 2016 through December 31, 
2026, with additional limits of 1,910 lb/hr on a 30-day rolling average 
basis and 8,366 tpy on a 12-month rolling basis (this limit may be 
lowered pursuant to the results of an optimization study to be 
conducted by AEP/PSO); and (6) the facility will incrementally decrease 
capacity utilization for the remaining unit between 2021 and 2026, 
culminating with the complete shutdown of the remaining unit no later 
than December 31, 2026. The state's revised enforceable SO2 
BART requirements for Units 3 and 4 of the Northeastern Power Station 
are contained in the submitted ``First Amended Regional Haze Agreement, 
DEQ Case No. 10-025 (March 2013)'' that revises the previously 
submitted ``PSO Regional Haze Agreement, DEQ Case No. 10-025 (February 
10, 2010). Consequently, we are approving the ``PSO Regional Haze 
Agreement, DEQ Case No. 10-025 (February 10, 2010),'' as amended by the 
``First Amended Regional Haze Agreement, DEQ Case No. 10-025 (March 
2013).''
    We are also taking final action to approve the following 
accelerated NOX BART compliance schedule included in the 
submitted revised BART determination for Northeastern Power Station 
Units 3 and 4: (1) By December 31, 2013, the facility will comply with 
an emission limit of 0.23 lb/MMBtu on a 30-day rolling average basis 
with an additional limit of 1,098 lb/hr per unit on a 30-day rolling 
average basis and a 9,620 tpy combined cap for both units; and (2) the 
unit that remains in operation shall undergo further control system 
tuning and by April 16, 2016, comply with an emission limit of 0.15 lb/
MMBtu on a 30-day rolling average basis with an additional limit of 716 
lb/hr on a 30-day rolling average basis and a cap of 3,137 tpy on a 12-
month rolling basis. ODEQ also submitted an enforceable agreement 
containing the accelerated compliance schedule. For the revised 
NOX BART determination, therefore, we also are approving the 
``PSO Regional Haze Agreement, DEQ Case No. 10-025 (February 10, 
2010),'' as amended by the ``First Amended Regional Haze Agreement, DEQ 
Case No. 10-025 (March 2013),'' because it makes enforceable the 
NOX BART emission limitations and schedules for AEP/PSO's 
BART-subject units in Oklahoma.
    In addition to approving Oklahoma's revised enforceable 
SO2 BART determination for AEP/PSO Northeastern Power 
Station Units 3 and 4, we are also taking final action to approve that 
portion of the Oklahoma RH SIP revision concerning Oklahoma's 
interstate transport obligations. With the approval of this revised 
BART determination for AEP/PSO Northeastern Power Station Units 3 and 
4, the enforceable RH Agreement, and an enforceable commitment, we find 
that the Oklahoma RH SIP as a whole addresses the requirements of the 
interstate transport provisions of CAA section 110(a)(2)(D)(i)(II) as 
applied to this source and its associated impacts on other states' 
programs to protect visibility in Class I Areas. The ODEQ's enforceable 
commitment is found in the SIP Narrative at page 10.
    Implementation of the enforceable commitment is only necessary if 
the Northeastern Power Station is not able to achieve the equivalent of 
0.3 lbs SO2/million Btu through a combination of unit 
shutdowns and implementation of DSI, as this level of reduction was 
assumed in the multistate modeling performed by the Central Regional 
Air Planning Association (CENRAP) that provided the basis for 
Oklahoma's and other Midwestern States' SIPs. The enforceable 
commitment obligates ODEQ to ``obtain and/or identify additional 
SO2 reductions within the State of Oklahoma to the extent 
necessary to achieve the anticipated visibility benefits estimated'' by 
the CENRAP. For example, any additional SO2 emissions 
reductions that can be obtained or identified from the northeast 
quadrant of the State will be presumed to count toward the emission 
reductions necessary to achieve the anticipated visibility benefits 
associated with a 0.30 lb/MMBtu emission limit at Northeastern Power 
Station. Emissions reductions obtained outside the northeast quadrant 
that are technically justified will also be counted. Finally, if 
necessary, additional emissions reductions shall be obtained via 
enforceable emission limits or control equipment requirements where 
necessary and submitted to EPA as a SIP revision as expeditiously as 
practicable, but in no event later than the end of the first full 
Oklahoma legislative session occurring subsequent to AEP/PSO's 
submission of the evaluation and report required by Paragraph 1(f) of 
Attachment A of the AEP/PSO Settlement Agreement presented in Appendix 
I of the Oklahoma RH SIP revision. Moreover, any additional reductions 
that are obtained prior to the 2018 Regional Haze SIP revision required 
by 40 CFR 51.308(f) but not accounted for in the above-referenced 
modeling will be identified in the 2018 revision.
    We have made the determination that the Oklahoma RH SIP revision is 
approvable because the revision was adopted and submitted as a SIP 
revision in accordance with the CAA and EPA regulations regarding the 
regional haze program and meets the CAA provisions concerning non-
interference with programs to protect visibility in other states. We 
are taking this final action today under section 110 and part C of the 
CAA.
    As explained in our August 21, 2013 proposal (see 78 FR 51686), as 
a result of today's approval action we are taking action to amend the 
regional haze Federal Implementation Plan (FIP) for Oklahoma at 40 CFR 
52.1923. The action to amend the FIP is in a separate action contained 
in today's Federal Register. Upon the effective date of the Federal 
Register notice amending the FIP, Units 3 and 4 of AEP/PSO's 
Northeastern Power Station will no longer be covered by the FIP.

III. Response to Comments

    We received a total of 273 comments, including five comments in 
opposition to our proposed approval of the Oklahoma RH SIP revision 
that were submitted by U.S. Representative Jim Bridenstine, the 
Oklahoma Attorney General, the Consumer Coalition of Oklahoma, the 
Oklahoma Industrial Energy Consumers, and the Quality of Service 
Coalition, and 268 comments in support from the Sierra Club and its 
members in Oklahoma. Copies of the comments are available in the docket 
for this rulemaking. A summary of the issues raised in the comment 
letters, and our responses, follows:
    Comment: We received several comment letters containing claims that 
ODEQ's revised BART determination for the AEP/PSO Northeastern Power

[[Page 12946]]

Station did not consider true energy impacts. These comment letters 
generally assert that ODEQ did not make a reasonable BART determination 
because it relied upon AEP/PSO's BART analysis, which they claim failed 
to consider the true energy impacts of compliance and the costs of 
compliance under the Settlement Agreement.\1\ The commenters claim that 
overlooking these costs of compliance led to an incorrect determination 
of cost-effectiveness of the SO2 emissions controls 
attributable to the early retirements under the Settlement Agreement. 
The commenters submit that early retirement of the two coal-fired units 
at issue constitutes at least an indirect energy impact that is 
``unusual or significant'' and quantifiable and therefore should have 
been considered in ODEQ's BART analysis. The commenters further assert 
that ODEQ has concluded that the revised BART determination is cost-
effective based on an analysis that does not include replacement 
capacity and energy costs that AEP/PSO would be required to incur due 
to the mandated early retirement of the two units. Finally, these 
commenters also submit that ODEQ and EPA should have considered in 
their energy impacts analyses the ``significant economic disruption or 
unemployment'' that will result from the Oklahoma RH SIP revision and 
cite the risk of rate shock resulting from natural gas price 
fluctuations, risk of reduction of electric grid reliability, and 
potential for increased unemployment.
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    \1\ The state of Oklahoma and AEP/PSO filed petitions for review 
of EPA's FIP, and the parties have separately entered into a 
settlement agreement that includes a timeline for preparing and 
processing the Oklahoma RH SIP revision that is the subject of 
today's action. A copy of the Settlement Agreement may be found in 
Appendix I of the Oklahoma RH SIP revision.
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    Response: We disagree with these commenters. The BART Guidelines 
only require states to consider the direct energy consumption of the 
various control options under consideration, not indirect energy 
impacts.\2\ While the BART guidelines do allow states to consider 
indirect impacts if they would be ``unusual or significant,'' there is 
no indication that Oklahoma ignored any such impacts here. The 
commenters allege that retirement of the AEP/PSO units will lead to 
``significant economic disruption or unemployment'' or rate shock, but 
provide no evidence to support such assertions. Consequently, we 
believe the State acted reasonably by focusing its BART analysis on the 
direct energy impacts of the various control options.
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    \2\ 40 CFR Part 51, app. Y, at IV.D.4.h.2.
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    We also note that AEP/PSO offered the BART determination in 
question to ODEQ as an alternative to our FIP, which indicates that the 
company found the alternative more economical, flexible, or consistent 
with its business strategy. AEP/PSO's decision to retire these aging 
units by dates certain is one that involves a variety of considerations 
that lie outside the BART analysis, including increasing costs of 
maintenance, economics of fuels, and costs of compliance with non-air 
quality requirements. Given the broad range of factors that affect a 
utility's decisions regarding the make-up of its power plant fleet, it 
would not be reasonable for EPA to second-guess decisions regarding the 
remaining useful life of facilities. Consequently, we believe that, in 
addition to its evaluation of energy impacts, the State also 
appropriately considered the remaining useful life of the AEP/PSO units 
in determining BART.
    Regarding potential unemployment of AEP/PSO Northeastern Power 
Station workers, however, we received one comment that notes that AEP/
PSO has extraordinary resources to redeploy its Northeastern Power 
Station employees affected by the Settlement Agreement and proposed SIP 
revision, and has committed to doing so.
    Comment: We received several comment letters suggesting that the 
proposed SIP revision is a fuel switch masquerading as BART. These 
commenters point out that BART, by its very nature, must be a 
``retrofit technology.'' They note that the BART Guidelines set forth 
the five basic steps of a case-by-case BART analysis, which are 
centered on the evaluation and identification of ``available emission 
retrofit control technologies.'' These commenters assert that inclusion 
of a facility closure as part of a BART determination necessarily 
results in a fuel switch, as the subject utility must acquire 
replacement capacity. In their view, EPA will have directed a switch in 
fuel forms--the direct opposite of the agency's stated intent in the 
BART Guidelines.
    Response: We disagree with the commenters that a BART analysis is 
limited to the consideration of options that require the installation 
of controls. We note that both AEP/PSO and Oklahoma Gas and Electric 
(OG&E) have voluntarily adopted fuel switching in the past as a 
strategy to address BART when they switched to low sulfur coal. 
Although EPA disagreed that low sulfur coal constituted BART, it was 
not because the option represented a fuel switch, but rather because we 
found that the installation of more stringent controls constituted 
BART. Although EPA's regulations do not require states to consider a 
fuel switch or a shutdown of an existing unit as part of their BART 
analyses, a state can certainly include such options in its analysis 
where a company voluntarily offers such measures as a strategy for 
reducing emissions.
    Comment: We received comments that our proposed action abandoned 
the unit-by-unit approach to analyzing BART. These commenters reference 
our Technical Support Document for the proposed approval of the 
Oklahoma RH SIP revision, which states that BART should be a unit-by-
unit analysis, and assert that in proposing to approve ODEQ's BART 
determination, EPA has abandoned the unit-by-unit analysis and instead 
compared the ODEQ's BART determination involving the shutdown of a 
generating unit against our FIP's proposed emissions control 
technologies and related emissions limits. The commenters claim that in 
so doing, EPA has inappropriately evaluated the closure of a unit as a 
``technology'' and analyzed two units together. Another commenter takes 
the opposite view, observing that ``EPA has not taken the approach of 
comparing the SIP Revision to the FIP. Appropriately, EPA has simply 
reviewed ODEQ's BART analysis for consistency with the Clean Air Act 
and the BART Guidelines.''
    Response: As we noted in our proposal, while BART determinations 
are typically made on a unit-by-unit basis, we believe that ODEQ's 
decision to evaluate BART on a facility-wide basis is a reasonable way 
to take into account the visibility and energy and non-air quality 
environmental benefits associated with unit shutdowns. While we believe 
ODEQ's facility-wide approach to BART is reasonable, we also analyzed 
BART on a unit by unit basis.\3\ We then conducted our own unit-by-unit 
analysis to confirm the State's conclusions, including the 
consideration of a scenario not considered by ODEQ, in which the unit 
that remains in operation after April 16, 2016 would install dry flue 
gas desulfurization/spray dryer absorber (DFGD/SDA) rather than DSI. We 
also made adjustments to ODEQ's cost and visibility calculations to 
take into account more recent information regarding the facility's 
baseline ``uncontrolled'' emissions and the remaining useful life of 
the facility. The adjustments were necessary to properly

[[Page 12947]]

assess the cost and visibility factors on a unit-by-unit basis.
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    \3\ 78 FR 51692
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    Comment: We received several comments concerning our costs of 
compliance analysis. The commenters believe that we underestimated the 
costs of compliance associated with ODEQ's revised BART determination 
for AEP/PSO's units. One of the several commenters that believed we 
underestimated the costs of compliance conducted an independent 
analysis and believes that estimates prepared by AEP/PSO benefit from 
``accounting gimmicks.'' This commenter states that its analysis 
demonstrates that the Oklahoma RH SIP revision will cost $529 million 
more in net present value and $3 billion more in nominal dollars than 
the FIP currently in place. We also received a comment in support of 
our costs of compliance analysis, which states that it would not be 
legally sound for ODEQ to have considered the costs of replacement 
power or any other costs beyond those of emission controls in its 
revised BART analysis.
    Response: Unfortunately, we cannot respond to the commenters' 
assertions, because the commenter failed to provide any details 
concerning its cost analysis. We note, however, that regardless of the 
cost of the State's BART determination, EPA cannot disapprove a SIP 
measure simply because the measure will be more costly than controls 
required in a FIP. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-
66 (1976); 42 U.S.C. 7410(a)(2).
    Comment: We received one comment in support of the proposed action, 
which indicated that the Oklahoma RH SIP revision submittal satisfies 
EPA's and ODEQ's obligations under the Clean Air Act. The commenter 
notes that the CAA instructs states to contemplate the remaining useful 
life of the source and the BART Guidelines acknowledge that a company 
may agree to shut down a unit prior to the statutory deadline for BART 
controls. The commenter asserts that ODEQ acted properly in taking into 
account AEP/PSO's enforceable commitment to retire one unit by 2016 
when comparing costs. Likewise, the Commenter believes that EPA's 
conclusion that DSI is more cost-effective than DFGD/SDA is correct, as 
demonstrated by the agency's unit-by-unit analysis and taking into 
account the remaining useful life of the plant.
    Response: We thank the commenter for the support and agree with the 
commenter's conclusions.
    Comment: We received two comments asserting that EPA and ODEQ have 
usurped the authority of the Oklahoma Corporation Commission (OCC) and 
ordered the closure of a facility without consideration of system 
reliability impacts, rate impacts, or any other impacts on AEP/PSO 
customers. These commenters assert that regulatory issues associated 
with the retirements have never been considered by the OCC, which has 
the specialized expertise and appropriate jurisdiction to consider such 
issues.
    Response: We are not usurping the OCC's authority by approving a 
SIP revision submitted from the State of Oklahoma that requires the 
closure of any of AEP/PSO's facilities. On the contrary, we are 
carrying out our statutory obligations to review the Oklahoma RH SIP 
revision. We are required to approve a SIP revision that complies with 
the applicable requirements of the CAA and our implementing 
regulations. 42 U.S.C. 7410(k). Here, ODEQ made a revised BART 
determination for Units 3 and 4 at the Northeastern Power Station that 
relied on retirement dates proposed and agreed to by the facility's 
owner, AEP/PSO. We have reviewed ODEQ's revised BART determination and 
concluded that it satisfies all applicable requirements of the CAA, the 
Regional Haze Rule, and the BART Guidelines. Therefore, we are required 
to approve the Oklahoma SIP revision.
    Comment: We received one comment that our proposed action triggers 
requirements of the Regulatory Flexibility Act (RFA). This commenter 
claims that the proposed action will have significant adverse economic 
impact on small entities, including small commercial and industrial 
customers of PSO, contrary to EPA's certification otherwise, and that 
requirements of the Regulatory Flexibility Act are thus triggered.
    Response: Courts have interpreted the RFA to require a regulatory 
flexibility analysis only when small entities will be subject to the 
requirements of the agency's action. See, e.g., Michigan v. EPA, 213 
F.3d 663 (D.C. Cir. 2000); Mid-Tex Elec. Co-op, Inc. v. FERC, 773 F.2d 
327 (D.C. Cir. 1985). The EPA's action here would not establish 
requirements applicable to small entities. In our proposal, we 
certified that our rule will not have a significant economic impact on 
a substantial number of small entities in compliance with the RFA. We 
reached this decision because our SIP approval under section 110 of the 
Clean Air Act does not itself create any new requirements but simply 
approves Oklahoma's existing State rule. Our action does not place 
additional regulatory burdens on any entity including AEP ratepayers. 
Therefore, we properly certified that this action will not have a 
significant economic impact on a substantial number of small entities. 
Moreover, due to the nature of the Federal-State relationship under the 
Clean Air Act, preparation of a flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of a State action. The 
Clean Air Act forbids EPA to base its actions concerning SIPs on such 
grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 
42 U.S.C. 7410(a)(2).
    Comment: We received one comment concerning compliance with 
Executive Order (EO) 12866 and OMB review of the proposed action. The 
commenter states that the costs reviewed by ODEQ and EPA related only 
to plant modifications and equipment to achieve the suggested regional 
haze and interstate transport reductions. The commenter notes that 
Executive Order 12866, section 1(11) states that ``each agency shall 
tailor its regulations to impose the least burden on society, including 
individuals, business of differing sizes, and other entities (including 
small communities and governmental entities), consistent with obtaining 
the regulatory objectives, taking into account, among other things, and 
to the extent practicable, the costs of cumulative regulations.'' The 
commenter asserts that the societal impacts of EPA's proposed approval 
of the Oklahoma RH SIP revision should have been considered and that 
the proposed action should have undergone OMB review.
    Response: Under EO 12866, an action is economically significant if 
it is likely that it may ``[h]ave an annual effect on the economy of 
$100 million or more or adversely affect in a material way the economy, 
a sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local, or tribal 
governments or communities.'' EO 12866 allows OMB to review actions 
that fall within this category. This action was not reviewed by OMB 
because our rule is not economically significant. It is merely an 
approval under section 110 of the Clean Air Act. It does not create any 
additional requirements but merely approves an existing state rule. 
Thus, our rule would not result in costs over $100 million or adversely 
affect in a material way the economy, a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local, or tribal governments or communities.
    Comment: We received several comments concerning tribal 
consultation issues and compliance with Executive Order 13175. These 
commenters believe that the energy

[[Page 12948]]

impacts of the revised BART determination, in particular significant 
rate increases, will have tribal implications and impose substantial 
direct compliance costs on tribal governments. One commenter notes that 
AEP/PSO's service territory covers portions of at least 13 federally 
recognized Indian tribes and that the Choctaw Nation recently 
participated in AEP/PSO's energy efficiency program. These commenters 
question whether our proposed action complies with EO 13175 and request 
that we prepare a tribal impact summary statement.
    Response: Executive Order 13175, entitled ``Consultation and 
Coordination with Indian Tribal Governments'' (65 FR 67249, November 9, 
2000), directs agencies to develop an accountable process to ensure 
``meaningful and timely input by tribal officials in the development of 
regulatory policies that have tribal implications.'' EO 13175 section 
(5)(a). Consistent with EO 13175, the 1984 EPA Policy for the 
Administration of Environmental Programs on Indian Reservations, and 
the May 4, 2011 EPA Policy on Consultation and Coordination with Indian 
Tribes, Region 6 provided information concerning this action at a 
regular meeting of the Tribal Environmental Coalition in Oklahoma that 
was held at the Sac and Fox Learning Center on July 16, 2013 and also 
offered an opportunity to engage in government-to-government 
consultation with Regional Tribal management. Additionally, Region 6 
provides information and updates at quarterly Regional Tribal 
Operations Committee (RTOC) meetings. To date, no Tribes have provided 
comments to EPA or requested government-to-government consultation with 
the Region on this action.
    EO 13175 section (5)(b) states that no agency may promulgate any 
regulation that has tribal implications, imposes substantial direct 
compliance costs on Indian tribal governments, and is not required by 
statute unless the direct costs of compliance with the proposed rule 
are paid by the Federal government or the agency consults with tribes, 
provides the Director of OMB a tribal summary impact statement, and 
makes available to the Director of OMB any written communication tribal 
officials submitted to the agency. Our approval of the Oklahoma RH SIP 
revision does not directly apply since the facility is not located in 
Indian country. Moreover, the facilities that will incur the direct 
costs of compliance are not tribally owned or operated. The possibility 
that a tribe, as a consumer, may be affected by a rate change, does not 
implicate EO 13175. Therefore, EPA was not required to prepare a tribal 
impact summary statement.
    Comment: We received one comment that our proposed action does not 
comply with our own policy on tribal consultation. The commenter 
suggests that we should suspend this rulemaking until we have engaged 
in consultation with affected tribes in Oklahoma. The commenter notes 
that AEP/PSO serves a portion of the Osage Indian Reservation in 
northeast Oklahoma, and that the following tribal nations have casinos 
within AEP/PSO's service territory: the Choctaw Nation in Broken Arrow 
and McAlester; the Osage Nation in Tulsa, Bartlesville, and Sand 
Springs; and the Muscogee (Creek) Nation in Okmulgee.
    Response: Consistent with the EPA Policy on Consultation and 
Coordination with Indian Tribes, Region 6 provided information 
concerning this action at a regular meeting of the Tribal Environmental 
Coalition in Oklahoma that was held at the Sac and Fox Learning Center 
on July 16, 2013 and offered an opportunity to engage in government-to-
government consultation with Regional Tribal management. Additionally, 
Region 6 provided information and updates at quarterly Regional Tribal 
Operations Committee (RTOC) meetings. No Tribes provided comments to 
EPA or requested government-to-government consultation on this action.
    Comment: We received several comments regarding opportunities for 
public participation associated with this proposed action, in 
particular concerning the number and location of public hearings. These 
commenters point out that the only public hearing on the Oklahoma RH 
SIP revision was conducted by ODEQ in Oklahoma City in May 2013, and 
that no public hearings have been conducted by EPA or conducted within 
the affected AEP/PSO service territories, which cover the northeastern 
and southwestern corners of the state. The commenters request that 
additional public hearings be conducted by EPA within the AEP/PSO 
service territories to allow potentially affected citizens a better 
opportunity to provide meaningful comments on EPA's proposed approval 
of the Oklahoma RH SIP revision. One commenter references EPA's 
proposed FIP for BART at the Navajo Generating Station (NGS) in Arizona 
for which EPA has committed to conduct several public hearings 
throughout Arizona. Two of the commenters additionally note that no 
hearing was conducted for the Settlement Agreement associated with 
ODEQ's revised BART determination for Units 3 and 4 at Northeastern 
Power Station.
    Response: The CAA requires a state to provide an opportunity to 
request a public hearing on any proposed SIP revision before it is 
adopted. 42 U.S.C. 7410(a)(2) and 7410(l). Additionally, 40 CFR 
51.102(a) spells out these public hearing requirements; however, the 
regulation is silent concerning the location of any public hearing that 
is held, and multiple public hearings are not required. For SIP 
revisions, the hearing requirement is appropriately assigned to the 
states because the state agencies, rather than the EPA, are adopting 
the substantive requirements of the SIP and have the ability to amend 
the proposed SIP revision in response to comments received. The ODEQ 
fulfilled this requirement with the public hearing it conducted in 
Oklahoma City on May 20, 2013.
    When promulgating a FIP, such as EPA's proposed FIP for BART at NGS 
in Arizona referenced by the commenter, EPA is required to provide an 
opportunity for public hearing. 42 U.S.C. 7607(d)(1)(B) and (5). 
Likewise, in the process of promulgating our FIP for BART in Oklahoma, 
we conducted two hearings in 2011 in Oklahoma City and Tulsa. However, 
today's action does not promulgate a FIP, but rather approves the 
State's submittal to revise its RH SIP. Neither the CAA nor the 
Administrative Procedures Act (APA) requires EPA to provide a public 
hearing for actions on SIPs.
    In taking action on this SIP submittal, EPA has complied with the 
applicable statutory requirements for public participation under the 
Administrative Procedure Act, which does not require an opportunity for 
public hearing. 5 U.S.C. 553(c). While a public hearing is not 
statutorily required for SIP actions, EPA recognizes that the EPA 
retains discretion to offer public hearings. EPA elected not to conduct 
a public hearing for this SIP action for several reasons. EPA may 
conduct a discretionary public hearing when it is necessary to glean 
additional information from the public; however, we did not feel that 
it was necessary here. We believe the opportunities for public 
participation during ODEQ's rulemaking process, including the State's 
public hearing, along with the opportunity to provide written comments 
to EPA on our proposed approval of the Oklahoma RH SIP revision 
provided significant opportunity for affected citizens in Oklahoma to 
participate in this rulemaking. In response to the Federal Register 
notice, we received 273 comments on our proposed approval of the 
Oklahoma RH SIP revision, all of

[[Page 12949]]

which are given full consideration in this final action. In our view, 
this demonstrates that the public had sufficient opportunity to 
participate in this rulemaking.
    Finally, the CAA requires EPA to provide a 30-day public comment 
period before EPA enters any proposed settlement agreement; however, 
this requirement is limited to written comments. 42 U.S.C. 7413(g). EPA 
met this requirement when it published a 30-day notice in the Federal 
Register (77 FR 67814, November 14, 2012) and considered comments 
received on the proposed Settlement Agreement. EPA was not required to 
offer a public hearing for the Settlement Agreement associated with 
ODEQ's BART determination.
    Comment: We received numerous comments that the Oklahoma RH SIP 
revision will result in significant visibility improvements. These 
commenters conclude that overall, the Oklahoma RH SIP revision is the 
less polluting option compared to the FIP currently in place and will 
result in significant visibility improvements and tangible economic 
benefits. One commenter believes that these visibility improvements are 
likely understated in analyses conducted by EPA and ODEQ, even for the 
first five years. For example, the commenter notes that the Oklahoma RH 
SIP revision will result in earlier NOX reductions than 
would have occurred under ODEQ's original SIP or EPA's FIP, and that 
neither agency evaluated the likely reductions in visibility impairment 
as the second unit ramps down capacity between 2016 and 2026.
    Response: We acknowledge these commenters' support and agree that 
there are additional visibility benefits associated with the Oklahoma 
RH SIP that were not fully analyzed.
    Comment: We received numerous comments that the Oklahoma RH SIP 
revision will result in significant reductions in harmful air 
pollutants. One commenter states that the Northeastern Power Station's 
NOX emissions, and their contribution to ozone, are 
particularly problematic for the region's efforts to maintain healthy 
air quality levels. This commenter also explains that the plant's 
SO2 emissions threaten to cause exceedances of federal air 
quality standards. This commenter notes that both it and EPA Region 6 
have conducted air dispersion modeling indicating that the plant's 
emissions contribute to ambient SO2 levels that exceed the 
1-hour SO2 National Ambient Air Quality Standards (NAAQS). 
The commenter further notes that in addition to reduced NOX, 
SO2 and PM, the Oklahoma RH SIP revision will result in 
reductions of approximately 210 pounds of mercury emissions per year. 
The commenter observes that the environmental benefits of the Oklahoma 
RH SIP revision are not limited to air quality but also include 
reductions in toxic coal ash that threaten to contaminate local ground 
water resources and reduced waste water discharges containing 
pollutants.
    Response: We agree with the commenter's conclusions that the 
Oklahoma RH SIP revision will have additional environmental benefits 
beyond reducing regional haze.
    Comment: We received one comment in support of the proposed action 
that, in addition to promoting clean air and reducing regional haze, 
the Oklahoma RH SIP revision will conserve Oklahoma's water resources. 
The commenter notes that EPA has correctly recognized that the Oklahoma 
RH SIP revision submittal will reduce water usage at the Northeastern 
Power Station and that this incidental benefit is important in light of 
the extreme drought conditions facing Oklahoma. The commenter states 
that in response to its data requests in proceedings before the OCC, 
AEP/PSO has estimated that the increase in water consumption at the 
Northeastern Power Station, if it were to add dry scrubbers to both 
units, would be 65 times greater than with a retrofit of activated 
carbon injection (ACI) and DSI at just one unit, pursuant to the 
Oklahoma RH SIP revision. Furthermore, the commenter notes, water 
currently consumed by the units will be released for other uses upon 
the retirement of the units in 2016 and 2026.
    Response: We agree with the commenter that there are non-air 
quality co-benefits associated with the Oklahoma RH SIP revision.
    Comment: We received one comment in support of the proposed action 
concerning the cost-effectiveness of the Oklahoma RH SIP revision. The 
commenter concludes that the Oklahoma RH SIP revision is more cost-
effective than the FIP currently in place and less costly overall. The 
commenter cites AEP/PSO's $942/ton SO2 removed cost-
effectiveness estimate and notes that the Oklahoma RH SIP revision will 
allow AEP/PSO to avoid potentially significant compliance costs 
associated with other upcoming regulations, including: the Mercury Air 
Toxics Standards (MATS), disposal of coal combustion residuals, 
effluent limitations guidelines, a revised (lowered) ozone NAAQS, the 
1-hour primary SO2 NAAQS, Cross-State Air Pollution Rule and 
Clean Air Interstate Rule (CSAPR/CAIR), and carbon controls for 
existing power plants under the President's climate change initiative.
    Response: We agree with the commenter's conclusions and note that 
an AEP/PSO representative made similar comments in recent testimony 
before the OCC.
    Comment: We received one comment in support of the proposed action 
concerning the Oklahoma RH SIP revision's consistency with the State 
Energy Plan. The commenter notes that, although not directly relevant 
to ODEQ's statutory obligations or EPA's review, the Oklahoma RH SIP 
revision is consistent with the State of Oklahoma's energy plan, which 
prioritizes the increased use of Oklahoma's energy resources such as 
wind and natural gas, and protection of public health and the 
environment. The commenter notes that Oklahoma is currently an exporter 
of both natural gas and wind power, but a major importer of coal.
    Response: We thank the commenter for the support.
    Comment: We received several comments concerning the potential of 
the Oklahoma RH SIP revision submittal to hurt or help overall 
reliability of the power grid. Several commenters claim that the 
Oklahoma RH SIP revision submittal will result in lower reliability of 
the grid by reducing the percentage of power generated by coal 
combustion and increasing reliance on electricity generated by natural 
gas combustion, which is subject to more price and availability 
fluctuations. Another commenter suggests that the Oklahoma RH SIP 
revision submittal will result in improved reliability of the grid. 
This commenter notes that as the amount of wind power in Oklahoma and 
the Southeast Power Pool rises, fossil generation will be required to 
ramp production up and down more frequently, and to shut down for 
various periods of time during high wind production. The commenter 
asserts that switching to natural gas and implementing energy 
efficiency and demand response programs will result in resources better 
suited than coal-fired units to integrate with variable wind 
generation.
    Response: We cannot comment on speculative impacts on the 
reliability of electrical grid in Oklahoma that may or may not result 
from this revised BART determination for Units 3 and 4 at Northeastern 
Power Station. Issues regarding grid reliability are more properly 
addressed by the Oklahoma Corporation Commission and the electricity 
providers such as AEP/PSO.

[[Page 12950]]

    In addition to the comments submitted directly to EPA, some 
commenters also incorporated by reference the following comments from 
Oklahoma Industrial Energy Consumers and Quality of Service Coalition 
that were submitted to ODEQ during its public comment period on the 
state-proposed SIP revision, which ended in May 2013. These comments 
and our responses follow below:
    Comment: The commenters state that ODEQ did not rely on an updated 
emissions inventory in its revised BART determination and assert that 
an updated emissions inventory is essential to the overall 
determination of BART-eligible sources in Oklahoma and to the 
determination of sources required to install BART, and that ODEQ is 
required to consider and address the anticipated net effect on 
visibility resulting from changes projected in point, area, and mobile 
source emissions by 2018. The commenters also reference an Arizona 
Department of Environmental Quality (ADEQ) regional haze submission, in 
which EPA required ADEQ to provide the most recent emissions inventory 
data available.
    Response: The determination of subject-to-BART sources was based on 
modeling of maximum actual emissions during the baseline period of 
2001-2003, and EPA has already approved ODEQ's determinations of BART-
eligible and subject-to-BART sources. An updated emission inventory 
would have no impact on these determinations that have already been 
acted upon. Furthermore, the visibility modeling performed to determine 
sources subject-to-BART and to inform BART determinations consists of 
single-source modeling utilizing CALPUFF and requires only the pre-
control and post-control emission rates of the source being evaluated. 
This action and the Oklahoma RH SIP revision only address the 
requirements for a BART determination for a subject-to-BART source. We 
have already approved the modeling and emission inventories for the 
first regional haze planning period, and these requirements do not have 
to be revisited until the next planning period.
    With respect to the Arizona regional haze SIP revision referenced 
by the commenters, 40 CFR 51.308(d)(4)(v) requires a statewide 
inventory of emissions of pollutants that are reasonably anticipated to 
cause or contribute to visibility impairment in any mandatory Class I 
Federal area. This inventory must include emissions for a baseline 
year, emissions for the most recent year for which data are available, 
and estimates of future projected emissions. States must also include 
in their regional haze SIPs a commitment to update this inventory 
periodically. Arizona did not satisfy this requirement because it 
failed to include the 2008 emission inventory when it submitted its 
regional haze SIP in 2011. Oklahoma, however, did satisfy this 
requirement because ODEQ included its most recent emission inventory as 
Appendix 4-1 of its original regional haze SIP submittal. This 
requirement is unrelated to the requirements for a BART determination 
and is not relevant to this action.
    Comment: The commenters state that AEP/PSO Northeastern Power 
Station Units 3 and 4 currently provide a significant percentage of all 
energy supplied to AEP/PSO customers and cite low fuel cost associated 
with operation of those facilities as the reason for the high energy 
contribution from Units 3 and 4. The commenters express concern that 
replacement energy may be supplied by more expensive natural gas-fueled 
facilities. The commenters assert that the need for replacement energy 
is quantifiable, the estimated cost of that replacement energy is 
quantifiable, and that ODEQ should have factored these costs into its 
determination of a reasonable progress goal.
    Response: As ODEQ noted in its response to comments, the Oklahoma 
RH SIP revision does not include any changes to the Chapter IX of the 
SIP, which concerns reasonable progress goals. The SIP revision 
submittal does, however, identify further reasonable progress actions 
that are expected to further these goals. This action does not address 
the approvability of Oklahoma's reasonable progress plan which will be 
addressed in a separate action. In addition, as we explained in an 
earlier response, ODEQ appropriately considered the direct energy 
impacts of the various control options. Consideration of the 
speculative costs of replacement energy that may or may not be required 
once Units 3 and 4 retire is not required by the BART Guidelines and 
would not be required by the four-factor analysis required for 
reasonable progress.
    Comment: The commenters imply that ODEQ mandated the early 
retirements of Units 3 and 4 and further state that ODEQ did not 
consider costs of replacement energy and capacity as existing units are 
retired, including the cost of replacement capacity and energy arising 
from the mandated retirement of one of the units in 2016, the cost of 
replacement energy arising from the capacity restrictions which are 
imposed on the second unit during the period 2021-2026, and the cost of 
replacement capacity and energy arising from the mandated retirement of 
the second unit no later than 2026.
    Response: We concur with ODEQ's response to this comment. ODEQ did 
not, in fact, mandate the early retirement or capacity restrictions on 
either unit. Rather, AEP/PSO proposed these planned activities in its 
air quality operating permit application submitted as a revision to 
their previous submittal under ODEQ's BART requirements rule. See OAC 
252:100-8-76 . Subsequently, ODEQ entered into an administrative order 
with AEP/PSO to make these planned activities enforceable and therefore 
eligible to be relied upon in the BART review. Regarding the 
consideration of replacement energy costs, see our prior response.
    Comment: Citing the Regional Haze Rule and the BART Guidelines, the 
commenters assert that the State cannot mandate the early retirement of 
an electric generating unit as part of a BART determination.
    Response: We disagree with this comment. While it is true that the 
Regional Haze Rule and BART Guidelines do not contemplate unit 
retirements as a potential BART option, neither rule prohibits states 
or EPA from considering a shutdown as part of a BART determination if 
the strategy is proposed by the owner of a BART-eligible source. 
Moreover, the CAA and EPA's implementing regulations require states to 
consider the remaining useful life of a source when determining BART. 
Here, ODEQ did not unilaterally mandate the retirement of Units 3 and 
4. Rather, AEP/PSO made a business decision regarding the remaining 
useful life of these units and proposed that ODEQ include the 
corresponding shutdown dates as a feature of its revised BART 
determination. To allow AEP/PSO to take credit for the emission 
reductions associated with its chosen retirement dates, ODEQ 
appropriately issued an administrative order that made the shutdown 
dates enforceable and included these dates in the Oklahoma RH SIP 
revision.
    Comment: The commenters argue that ODEQ did not demonstrate that 
the Oklahoma RH SIP revision meets the requirement that alternatives to 
BART must achieve greater reasonable progress than would be achieved 
through the installation and operation of BART (i.e., DFGD/SDA). The 
commenters note that on page 11 of the Revised BART Report (attachment 
to the Oklahoma RH SIP revision), it is acknowledged that DFGD/SDA 
``would provide improvements in visibility above that achieved with the 
DSI system'' but that such improvements

[[Page 12951]]

would not be perceptible. The commenters assert that this conclusion 
clearly indicates that the revised BART determination does not meet the 
greater reasonable progress standard with regard to visibility 
improvement.
    Response: We concur with ODEQ's response to this comment. The 
regulation cited by the commenters, 40 CFR 51.308(e)(2)(i), addresses 
alternative measures states may adopt in lieu of requiring sources 
subject to BART to install, operate, and maintain BART. The Oklahoma RH 
SIP revision currently under review is not an alternative to BART. 
Rather, it is a revision of the State's BART determination for the AEP/
PSO Northeastern Power Station. Therefore, the cited section of the 
Regional Haze Rule is not applicable. As ODEQ indicated, it is not 
necessary that the BART determination in the Oklahoma RH SIP revision 
achieve greater visibility improvement than the EPA's BART 
determination in the FIP. Rather, the CAA and Regional Haze Rule 
require only that a source-specific BART determination be based on a 
reasoned analysis of the five statutory BART factors analysis in 
accordance with the procedures in the BART Guidelines.
    Comment: Citing further concerns over compliance with greater 
reasonable progress requirements, the commenters state that a 
significant portion of the emissions reductions attributed to the 
Oklahoma RH SIP revision could also be achieved by switching to ultra-
low sulfur coal, as required by the original Oklahoma RH SIP, and by 
installing DSI control technology to meet requirements of the MATS 
rule. They conclude that by including emissions reductions arising from 
DSI and by ignoring reductions which could be achieved through 
switching to ultra-low sulfur coal, the Oklahoma RH SIP revision 
overstates the emissions reductions that are attributable to the 
revised BART determination, which are surplus to reductions that would 
be achievable through other control measures or by implementing 
measures to meet CAA requirements that existed as of the baseline date 
of the state-proposed SIP revision.
    Response: We concur with ODEQ's response to this comment. As ODEQ 
noted in responses to similar comments, the Oklahoma RH SIP revision is 
a revision of the State's BART determination for the AEP/PSO 
Northeastern Power Station and is not a proposal for an alternative to 
BART. Therefore, the greater reasonable progress requirements do not 
apply. We also agree with ODEQ's conclusion that installation of the 
DSI control technology to satisfy the BART requirements will provide 
additional confidence that the facility will be able to comply with the 
MATS rule.
    Comment: The commenters claim that the Oklahoma RH SIP revision 
fails to meet the requirement at 40 CFR 51.308(e)(2)(iii) that all 
necessary emission reductions take place during the period of the first 
long-term strategy for regional haze, which ends in 2018, because the 
level of SO2 emissions under the state-proposed SIP revision 
is expected to be significantly higher than emissions under the EPA's 
FIP until well after 2018.
    Response: We concur with ODEQ's response to this comment. The 
Oklahoma RH SIP revision is a revision of the State's BART 
determination for the AEP/PSO Northeastern Power Station and is not a 
proposal for an alternative to BART. Therefore, the timing requirements 
of 40 CFR 51.308(e)(2)(iii) do not apply.
    Comment: The commenters question the statement on page 12 of the 
Revised BART Report that cumulative SO2 and NOX 
emissions from Units 3 and 4 are expected to be approximately 36% of 
the emissions level that would result from EPA's FIP. The commenters 
state that the underlying details of the analysis supporting the 
expected SO2 and NOX reductions were not provided 
with the Revised BART Report and that, absent back-up documentation, 
these projected emissions reductions are unreliable and cannot be used 
to justify the Oklahoma RH SIP revision.
    Response: We concur with ODEQ's response to this comment. ODEQ's 
calculation of projected emissions reductions was not a significant 
factor in its revised BART determination for Units 3 and 4. However, 
the projected reductions did provide ODEQ with a reasonable comparison 
of the results of the FIP with those of the Oklahoma RH SIP revision. 
As ODEQ explained in its response, the capital recovery factor used to 
establish the annualized costs of the DFGD/SDA option assumed a 
lifespan of 30 years. Because the FIP does not restrict capacity 
utilization, no such restrictions were assumed in this calculation. 
Consequently, the total emissions attributable to the FIP were 
calculated by multiplying the SO2 and NOX 
emission rates by full load heat input, assuming continuous operation 
for 30 years. In contrast, the total emissions associated with the 
Oklahoma RH SIP revision factored in the shorter lifespan of the units 
and reduced capacity utilization.
    Comment: The commenters contend that the Oklahoma RH SIP revision 
ignores the additional NOX emissions that would be produced 
by gas-fired generation or purchased power sources that AEP/PSO would 
have to acquire to replace Units 3 and 4 after they are retired in 2016 
and 2026. Additionally, the commenters state that it was assumed that, 
if retrofitted with DFGD/SFA, Units 3 and 4 would operate for another 
30 years (i.e., until 2046), which is inconsistent with AEP/PSO 
testimony to the OCC indicating that the units would likely be retired 
by 2030, only13 years after the retrofits are implemented. The 
commenters conclude that if the emissions reductions associated with 
the Oklahoma RH SIP revision were recalculated to reflect a shorter 
remaining useful life of Units 3 and 4, and to account for 
NOX emissions produced from sources that replace Units 3 and 
4, they would be significantly reduced.
    Response: We concur with ODEQ's response to this comment. As 
explained in previous responses, consideration of speculative 
replacement energy sources is not required by the BART Guidelines. We 
further agree with ODEQ's assessment that any replacement energy is 
unlikely to be procured from a source with environmental impacts 
comparable to or greater than those of Units 3 and 4, which are coal-
fired. This is due to the fact that BART addresses a very specific 
group of large existing sources that were placed in operation before 
many of the current national air quality programs were in place. 
Replacement energy would in all likelihood come from a newer source 
subject to the Best Available Control Technology (BACT) requirements of 
the Prevention of Significant Deterioration (PSD) permitting program.
    Furthermore, regarding the life-span of Units 3 and 4 under the FIP 
scenario, EPA recognizes that the cost of scrubbers is significant and 
that if a source makes such an investment, it will likely make other 
necessary investments to extend operation to recoup the costs. Thus, 
consistent with our standard practices for conducting BART 
determinations and cost-effectiveness analyses we assumed a 30-year 
useful life for the wet scrubber systems and responded to comments on 
this issue when we took final action in promulgating our FIP. The BART 
guidelines do allow for consideration of the remaining useful life of 
facilities when considering the costs of potential BART controls. Any 
claims regarding the remaining useful life of a facility or a source 
have to be secured by an enforceable requirement. AEP/PSO did not claim 
any such restrictions on the operation of Units 3 and 4 of Northeastern 
Power Station when we

[[Page 12952]]

promulgated our FIP. Consequently, we assumed a remaining useful life 
of 30 years in our BART analysis. We indicated in our responses to 
comments that if AEP/PSO were to decide the units in question have a 
shorter useful life such that installing scrubbers is no longer cost 
effective, and would be willing to accept an enforceable requirement to 
that effect, a revised BART analysis could be submitted by the plant(s) 
in question and our FIP could be re-analyzed accordingly. Similarly, we 
indicated that we could also review a revised SIP submitted by ODEQ. 
Ultimately, AEP/PSO did seek an enforceable commitment to limit the 
remaining useful life of Units 3 and 4 of Northeastern Power Station, 
and ODEQ subsequently submitted its RH SIP revision that is the subject 
of this action.
    Comment: The commenters assert that the BART analysis supporting 
the state-proposed SIP revision is based on AEP/PSO long-term planning 
studies that are no longer valid. The commenters note that AEP/PSO 
informed the OCC that it will need to revise its Integrated Resource 
Plan (IRP) to reflect previously unanticipated increases in near-term 
peak demand due to recent significant growth in oil and gas production 
activities on its system. The commenters assert that these changes will 
increase replacement energy costs for Units 3 and 4 and also increase 
future SO2 and NOX emissions, thus significantly 
altering the results of the state's BART analysis. The commenters 
conclude that the state-proposed SIP revision rulemaking activities 
should be postponed until the revised AEP/PSO IRP is approved by the 
OCC and then the ODEQ can revise its BART determination to take these 
changes into account and go back to proposal.
    Response: We concur with ODEQ's response to this comment. As 
discussed in responses to previous comments, consideration of 
replacement energy and associated emissions is not required by the BART 
Guidelines.
    Comment: The commenters state that the ODEQ's proposed revised BART 
determination for Units 3 and 4 and its proposed SIP revision do not 
take into account potential impacts on AEP/PSO customers. Citing EPA's 
Federal Register notice taking final action promulgating the FIP (76 FR 
81749) and Oklahoma statute 27A O.S. 2-5-107(4), the commenters assert 
that consideration of such economic impacts is required.
    Response: We concur with ODEQ's response to this comment. As ODEQ 
correctly points out, the Federal Register reference citation provided 
by the commenters addresses AEP/PSO's freedom to reduce emissions by 
alternative methods so long as the BART emission limit is met: 
``[E]mission limits may also be met with reconfiguration of the units 
to burn natural gas, the companies themselves are free to determine 
whether this option best responds to future customer needs and 
preferences, including any potential impact on rates.'' This statement 
remains true within the restrictions imposed by the Oklahoma RH SIP 
revision. ODEQ also correctly notes that the Oklahoma statute 
referenced in the comment, 27A O.S. Sec.  2-5-107(4), only applies to 
the considerations required by the Air Quality Advisory Council in 
deciding whether to recommend a rule or rule amendment to the 
Environmental Quality Board. The revised BART determination for 
Northeastern Power Station Units 3 and 4, and the associated Oklahoma 
RH SIP revision, are not rules. Therefore 27A O.S. Sec.  2-5-107(4) 
does not apply.

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Clean Air Act 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 Clean Air Act. 
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 Clean Air Act; 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.
    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 States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by May 6, 2014. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposed of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations,

[[Page 12953]]

Nitrogen dioxide, Particulate matter, Regional haze, Reporting and 
recordkeeping requirements, Sulfur dioxide, and Visibility.

    Dated: February 7, 2014.
Ron Curry,
Regional Administrator, Region 6.

    40 CFR Part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart LL--Oklahoma

0
2. Amend Sec.  52.1920 by:
0
a. Amending in paragraph (d) the table titled ``EPA Approved Oklahoma 
Source-Specific Requirements'' by adding a new entry at the end of the 
table for ``Units 3 and 4 of the American Electric Power/Public Service 
Company of Oklahoma (AEP/PSO) Northeastern plant''.
0
b. Amending in paragraph (e) the first table titled ``EPA Approved 
Nonregulatory Provisions and Quasi-Regulatory Measures in the Oklahoma 
SIP'' by revising the entry for Regional haze SIP and adding new 
entries at the end of the table for ``Revision to the Regional haze SIP 
concerning Units 3 and 4 of the American Electric Power/Public Service 
Company of Oklahoma (AEP/PSO) Northeastern plant'' and ``Enforceable 
commitment for visibility concerning Units 3 and 4 of the AEP/PSO 
Northeastern plant.''
    The revisions and additions read as follows:

Sec.  52.1920  Identification of plan.

* * * * *
    (d) * * *

                                                   EPA Approved Oklahoma Source-Specific Requirements
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                State
          Name of source                  Permit No.       submittal date             EPA approval date                         Explanation
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Units 3 and 4 of the American       PSO Regional Haze           6/20/2013  3/7/2014 [Insert citation of            .....................................
 Electric Power/Public Service       Agreement, Case No.                    publication].
 Company of Oklahoma (AEP/PSO)       10-025 (February
 Northeastern plant.                 2010) and Amended
                                     Regional Haze
                                     Agreement, DEQ Case
                                     No. 10-025 (March
                                     2013).
--------------------------------------------------------------------------------------------------------------------------------------------------------

    (e) * * *

                                 EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Oklahoma SIP
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                    Applicable geographic       State
       Name of SIP provision        or nonattainment area     submittal               EPA approval date                         Explanation
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Regional haze SIP:................  Statewide............       2/17/2010  3/7/2014 [Insert citation of            Core requirements of 40 CFR 51.308.
(a) Determination of baseline and                                           publication].                           Initial approval 12/28/2011, 76 FR
 natural visibility conditions.                                                                                     81728.
(b) Coordinating regional haze and
 reasonably attributable
 visibility impairment.
(c) Monitoring strategy and other
 implementation requirements.
(d) Coordination with States and
 Federal Land Managers.
(e) BART determinations except for
 the following SO2 BART
 determinations: Units 4 and 5 of
 the Oklahoma Gas and Electric
 (OG&E) Muskogee plant; and Units
 1 and 2 of the OG&E Sooner plant.
 
                                                                      * * * * * * *
Revision to the Regional haze SIP   Rogers County........       6/20/2013  3/7/2014 [Insert citation of            Revised BART determination.
 concerning Units 3 and 4 of the                                            publication].
 American Electric Power/Public
 Service Company of Oklahoma (AEP/
 PSO) Northeastern plant.

[[Page 12954]]

 
Enforceable commitment for          Rogers County........       6/20/2013  3/7/2014 [Insert citation of            If a SO2 emission limit of 0.3 lb/
 visibility concerning Units 3 and                                          publication].                           MMBtu is not met the State will
 4 of the AEP/PSO Northeastern                                                                                      obtain and/or identify additional
 plant.                                                                                                             SO2 reductions within Oklahoma to
                                                                                                                    the extent necessary to achieve the
                                                                                                                    anticipated visibility benefits
                                                                                                                    estimated by the Central Regional
                                                                                                                    Air Planning Association (CENRAP).
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *

0
3. Amend Sec.  52.1928 by revising paragraph (c) and adding paragraph 
(d) to read as follows:

Sec.  52.1928  Visibility protection.

* * * * *
    (c) The SO2 BART requirements for Units 4 and 5 of the 
Oklahoma Gas and Electric (OG&E) Muskogee plant, and Units 1 and 2 of 
the OG&E Sooner plant; the deficiencies in the long-term strategy for 
regional haze; and the requirement for a plan to contain adequate 
provisions to prohibit emissions from interfering with measures 
required in another state to protect visibility are satisfied by Sec.  
52.1923.
    (d) The revision to the Regional Haze plan submitted on June 20, 
2013 concerning Units 3 and 4 of the American Electric Power/Public 
Service Company of Oklahoma (AEP/PSO) Northeastern plant is approved. 
For this source the plan addresses requirements for BART and adequate 
provisions to prohibit emissions from interfering with measures 
required in another state to protect visibility. As called for in the 
plan if a SO2 emission limit of 0.3 lb/MMBtu is not met the 
State will obtain and/or identify additional SO2 reductions 
within Oklahoma to the extent necessary to achieve the anticipated 
visibility benefits estimated by the Central Regional Air Planning 
Association (CENRAP).

[FR Doc. 2014-03854 Filed 3-6-14; 8:45 am]
BILLING CODE 6560-50-P
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