19098 Federal Register / Vol. 77, No. 62 / Friday, March 30, 2012 / Rules and Regulations 

(c) Regulations. (1) Under the general 

regulations in § 165.33 of this title, entry 

into or remaining in this security zone 

is prohibited unless authorized by the 

COTP or the COTP’s designated 

representative. 

(2) The security zone is closed to all 

vessel traffic, except as may be 

permitted by the COTP or a designated 

representative. 

(3) Vessel operators desiring to enter 

or operate within the security zone must 

contact the COTP or a designated 

representative to obtain permission to 

do so. Vessel operators given permission 

to enter or operate in the security zone 

must comply with all directions given to 

them by the COTP or a designated 

representative. Persons and vessels may 

request permission to enter the security 

zone on VHF–16 or through the 24-hour 

Command Center at telephone (415) 

399–3547. 

(4) The U.S. Coast Guard may be 

assisted in the patrol and enforcement 

of the security zones by Federal, State, 

and local agencies. 

(d) Notice of Enforcement. The 

Captain of the Port San Francisco will 

cause notice of the enforcement of the 

security zone described in this section 

to be made by verbal broadcasts and 

written notice to mariners and the 

general public. 

(e) Enforcement Period. This security 

zone will be enforced around the 

Dennison Street Bridge from 12 p.m. on 

March 30 until 4 p.m. on March 31, 

2012 and around Coast Guard Island 

from 5 a.m. until 4 p.m. on March 31, 

2012. 

Dated: March 14, 2012. 

Cynthia L. Stowe, 

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

Port San Francisco. 

[FR Doc. 2012–7624 Filed 3–29–12; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2009–0783; FRL–9653–8] 

Approval and Promulgation of 

Implementation Plans; Commonwealth 

of Kentucky; Regional Haze State 

Implementation Plan 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is finalizing a limited 

approval and a limited disapproval of 

two revisions to the Kentucky state 

implementation plan (SIP) submitted by 

the Commonwealth of Kentucky 

through the Kentucky Energy and 

Environment Cabinet, Division of Air 

Quality (KYDAQ), on June 25, 2008, and 

May 28, 2010. Kentucky’s June 25, 2008, 

and May 28, 2010, SIP revisions address 

regional haze for the first 

implementation period. Specifically, 

these revisions address the requirements 

of the Clean Air Act (CAA or Act) and 

EPA’s rules that require states to prevent 

any future and remedy any existing 

anthropogenic impairment of visibility 

in mandatory Class I areas (national 

parks and wilderness areas) caused by 

emissions of air pollutants from 

numerous sources located over a wide 

geographic area (also referred to as the 

‘‘regional haze program’’). States are 

required to assure reasonable progress 

toward the national goal of achieving 

natural visibility conditions in Class I 

areas. EPA is finalizing a limited 

approval of Kentucky’s June 25, 2008, 

and May 28, 2010, SIP revisions to 

implement the regional haze 

requirements for Kentucky on the basis 

that these revisions, as a whole, 

strengthen the Kentucky SIP. Also in 

this action, EPA is finalizing a limited 

disapproval of these same SIP revisions 

because of the deficiencies in the 

Commonwealth’s regional haze SIP 

revisions arising from the remand by the 

U.S. Court of Appeals for the District of 

Columbia Circuit (D.C. Circuit) to EPA 

of the Clean Air Interstate Rule (CAIR). 

DATES: Effective Date: This rule will be 

effective April 30, 2012. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R04–OAR– 

2009–0783. All documents in the docket 

are listed on the www.regulations.gov 

Web site. Although listed in the index, 

some information is not publicly 

available, i.e., Confidential Business 

Information or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

www.regulations.gov or in hard copy at 

the Regulatory Development Section, 

Air Planning Branch, Air, Pesticides and 

Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. EPA 

requests that if at all possible, you 

contact the person listed in the FOR

FURTHER INFORMATION CONTACT section 

for further information. The Regional 

Office’s official hours of business are 

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

excluding federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Michele Notarianni, Regulatory 

Development Section, Air Planning 

Branch, Air, Pesticides and Toxics 

Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. Michele 

Notarianni can be reached at telephone 

number (404) 562–9031 and by 

electronic mail at 

notarianni.michele@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. What is the background for this final 

action? 

II. What is EPA’s response to comments 

received on this action? 

III. What is the effect of this final action? 

IV. Final Action 

V. Statutory and Executive Order Reviews 

I. What is the background for this final 

action? 

Regional haze is visibility impairment 

that is produced by a multitude of 

sources and activities which are located 

across a broad geographic area and emit 

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

organic carbon, elemental carbon, and 

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

sulfur dioxide (SO2), nitrogen oxides 

(NOX), and in some cases, ammonia and 

volatile organic compounds (VOC)). 

Fine particle precursors react in the 

atmosphere to form fine particulate 

matter (PM2.5) which impairs visibility 

by scattering and absorbing light. 

Visibility impairment reduces the 

clarity, color, and visible distance that 

one can see. PM2.5 can also cause 

serious health effects and mortality in 

humans and contributes to 

environmental effects such as acid 

deposition and eutrophication. 

In section 169A of the 1977 

Amendments to the CAA, Congress 

created a program for protecting 

visibility in the nation’s national parks 

and wilderness areas. This section of the 

CAA establishes the ‘‘prevention of any 

future, and the remedying of any 

existing, impairment of visibility in 

mandatory Class I areas which 

impairment results from manmade air 

pollution’’ as a national goal. On 

December 2, 1980, EPA promulgated 

regulations to address visibility 

impairment in Class I areas that is 

‘‘reasonably attributable’’ to a single 

source or small group of sources, i.e., 

‘‘reasonably attributable visibility 

impairment.’’ See 45 FR 80084. These 

regulations represented the first phase 

in addressing visibility impairment. 

EPA deferred action on regional haze 


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Federal Register / Vol. 77, No. 62 / Friday, March 30, 2012 / Rules and Regulations 19099 

1Processing of State Implementation Plan (SIP) 

Revisions, EPA Memorandum from John Calcagni, 

Director, Air Quality Management Division, 

OAQPS, to Air Division Directors, EPA Regional 

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

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

caaa/t1/memoranda/siproc.pdf. 

that emanates from a variety of sources 

until monitoring, modeling, and 

scientific knowledge about the 

relationships between pollutants and 

visibility impairment were improved. 

Congress added section 169B to the 

CAA in 1990 to address regional haze 

issues. EPA promulgated a rule to 

address regional haze on July 1, 1999 

(64 FR 35713), the Regional Haze Rule 

(RHR). The RHR revised the existing 

visibility regulations to integrate into 

the regulation provisions addressing 

regional haze impairment and 

established a comprehensive visibility 

protection program for Class I areas. The 

requirements for regional haze, found at 

40 CFR 51.308 and 51.309, are included 

in EPA’s visibility protection 

regulations at 40 CFR 51.300–309. The 

requirement to submit a regional haze 

SIP applies to all 50 states, the District 

of Columbia, and the Virgin Islands. 40 

CFR 51.308(b) requires states to submit 

the first implementation plan 

addressing regional haze visibility 

impairment no later than December 17, 

2007. 

On June 25, 2008, and May 28, 2010, 

KYDAQ submitted revisions to 

Kentucky’s SIP to address regional haze 

in the Commonwealth’s and other 

states’ Class I areas. On December 16, 

2011, EPA published an action 

proposing a limited approval and a 

limited disapproval of Kentucky’s two 

SIP revisions to address the first 

implementation period for regional 

haze. See 76 FR 78194. EPA proposed 

a limited approval of Kentucky’s two 

SIP revisions to implement the regional 

haze requirements for Kentucky on the 

basis that these revisions, as a whole, 

strengthen the Kentucky SIP. Also in 

that action, EPA proposed a limited 

disapproval of these same SIP revisions 

because of the deficiencies in the 

Commonwealth’s regional haze SIP 

revisions arising from the remand of 

CAIR to EPA by the D.C. Circuit. EPA 

received comments on the Agency’s 

proposed actions for Kentucky’s June 

25, 2008, and May 28, 2010, SIP 

revisions. See section II of this 

rulemaking for a summary of comments 

received and EPA’s responses to these 

comments. Also, detailed background 

information and EPA’s rationale for the 

proposed actions are provided in EPA’s 

December 16, 2011, proposed 

rulemaking. 

Following the remand of CAIR, EPA 

recently issued a new rule in 2011 to 

address the interstate transport of NOX

and SO2 in the eastern United States. 

See 76 FR 48208 (August 8, 2011) (‘‘the 

Transport Rule,’’ also known as the 

Cross-State Air Pollution Rule 

(CSAPR)). On December 30, 2011, EPA 

proposed to find that the trading 

programs in the Transport Rule would 

achieve greater reasonable progress 

towards the national goal than would 

best available retrofit technology 

(BART) in the states in which the 

Transport Rule applies. See 76 FR 

82219. Based on this proposed finding, 

EPA also proposed to revise the RHR to 

allow states to substitute participation 

in the trading programs under the 

Transport Rule for source-specific 

BART. EPA has not yet taken final 

action on that rule. 

Also on December 30, 2011, the D.C. 

Circuit issued an order addressing the 

status of the Transport Rule and CAIR 

in response to motions filed by 

numerous parties seeking a stay of the 

Transport Rule. In that order, the D.C. 

Circuit stayed the Transport Rule 

pending the court’s resolutions of the 

petitions for review of that rule in EME 

Homer Generation, L.P. v. EPA (No. 11– 

1302 and consolidated cases). The court 

also indicated that EPA is expected to 

continue to administer CAIR in the 

interim until the court rules on the 

petitions for review of the Transport 

Rule. 

II. What is EPA’s response to comments 

received on this action? 

EPA received three sets of comments 

on the December 16, 2011, rulemaking 

proposing a limited approval and 

limited disapproval of Kentucky’s June 

25, 2008, and May 28, 2010, SIP 

revisions. Specifically, the comments 

were received from the East Kentucky 

Power Cooperative (EKPC), the Utility 

Air Regulatory Group, and collectively 

from the Sierra Club and National Parks 

Conservation Association. Full sets of 

the comments provided by all of the 

aforementioned entities (hereinafter 

referred to as ‘‘the Commenter’’) are 

provided in the docket for today’s final 

action. The docket for this action is 

available at www.regulations.gov under 

Docket Identification No. EPA–R04– 

OAR–2009–0783. A summary of the 

comments and EPA’s responses are 

provided below. 

Comment 1: The Commenter asserts 

that EPA does not have the authority 

under the CAA to issue a limited 

approval and concurrent limited 

disapproval of Kentucky’s regional haze 

SIP. The Commenter contends that 

section 110(k) of the Act only allows 

EPA to fully approve, partially approve 

and partially disapprove, conditionally 

approve, or fully disapprove a SIP. 

Response 1: As discussed in the 

September 7, 1992, EPA memorandum 

cited in the notice of proposed 

rulemaking,1 although section 110(k) of 

the CAA may not expressly provide 

authority for limited approvals, the 

plain language of section 301(a) does 

provide ‘‘gap-filling’’ authority 

authorizing the Agency to ‘‘prescribe 

such regulations as are necessary to 

carry out’’ EPA’s CAA functions. EPA 

may rely on section 301(a) in 

conjunction with the Agency’s SIP 

approval authority in section 110(k)(3) 

to issue limited approvals where it has 

determined that a submittal strengthens 

a given state SIP and that the provisions 

meeting the applicable requirements of 

the Act are not separable from the 

provisions that do not meet the Act’s 

requirements. EPA has adopted the 

limited approval approach numerous 

times in SIP actions across the nation 

over the last twenty years. Limited 

approval and limited disapproval 

actions are appropriate here because 

EPA has determined that Kentucky’s SIP 

revisions addressing regional haze, as a 

whole, strengthen the Commonwealth’s 

SIP and because the provisions in the 

SIP revisions are not separable. 

The Commenter notes that EPA’s 

action ‘‘directly contradicts the plain 

language of the Clean Air Act’’ and cites 

several federal appellate court decisions 

to support its contention that section 

110(k) of the Act limits EPA to ‘‘a 

conditional approval, a partial approval 

and disapproval, or a full approval.’’ 

However, adopting the Commenter’s 

position would ignore section 301 and 

violate the ‘‘ ‘fundamental canon of 

statutory construction that the words of 

a statute must be read in their context 

and with a view to their place in the 

overall statutory scheme’* * *. A court 

must therefore interpret the statute ‘as a 

symmetrical and coherent regulatory 

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

parts into an harmonious whole.’ ’’ FDA 

v. Brown & Williamson Tobacco Corp., 

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

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

803, 809 (1989), Gustafson v. Alloyd 

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

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

389 (1959)). Furthermore, the cases 

cited by the Commenter did not involve 

challenges to a limited approval 

approach, and one of the cases, 

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

Cir. 1988) predates the 1990 CAA 

amendments enacting section 110(k). 

Comment 2: The Commenter states 

that EPA must partially disapprove 


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Kentucky’s regional haze SIP submittal 

because it relied on CAIR, a rule that, in 

the Commenter’s words, has been 

‘‘declared illegal, remanded and will 

come to an end.’’ The Commenter also 

contends that EPA must specifically 

‘‘disapprove the LTS [long-term 

strategy] that rely upon emissions 

reductions predicted to result from 

CAIR to supplant NOX and SO2 BART 

analyses and determinations for EGUs 

[electric generating units] and otherwise 

meet RPGs [reasonably progress goals].’’ 

Response 2: In 2008, the D.C. Circuit 

remanded CAIR back to the Agency 

because the court believed that CAIR 

was inconsistent with the requirements 

of the CAA. Although CAIR may not 

remain in effect indefinitely, it is 

currently in force, and the 

Commonwealth’s reliance on CAIR was 

fully consistent with EPA’s regulations 

at the time that Kentucky developed its 

regional haze SIP. As explained in the 

December 16, 2011, proposed 

rulemaking (76 FR 78194), EPA is taking 

a limited approval action because the 

revisions as a whole strengthen the SIP 

and because this action is consistent 

with the court’s intention to keep CAIR 

temporarily in place. The limited 

approval results in an approval of the 

entire regional haze submission and all 

of its elements, preserving the visibility 

benefits offered by the SIP until CAIR is 

replaced by the Transport Rule and EPA 

demonstrates that the Transport Rule is 

better than BART. EPA is taking a 

limited disapproval action because the 

Agency cannot fully approve regional 

haze SIP revisions that rely on CAIR for 

emissions reduction measures for the 

reasons discussed in section IV of the 

December 16, 2011, proposed 

rulemaking. EPA’s response to 

Comment 1, above, explains the 

Agency’s authority to take limited 

approval and limited disapproval 

actions under the CAA. 

EPA disagrees with the Commenter’s 

request for a partial disapproval of the 

SIP. Because the SIP provisions relying 

on CAIR, including the LTS, do not 

meet the applicable regional haze 

requirements and are not separable from 

the provisions that meet the applicable 

requirements of the Act, a partial 

disapproval would prevent any of the 

SIP’s air quality benefits from being 

realized until EPA promulgated a FIP or 

approved a revised SIP to address the 

deficiencies. Furthermore, the two-year 

clock to promulgate a FIP to remedy the 

deficiencies is triggered by the limited 

disapproval just as it would be triggered 

by a partial disapproval. On December 

30, 2011, EPA proposed to find that the 

trading programs in the Transport Rule 

would achieve greater reasonable 

progress towards the national goal than 

would BART in the states in which the 

Transport Rule applies. See 76 FR 

82219. Based on this proposed finding, 

EPA also proposed a FIP for Kentucky 

in that action that would substitute 

participation in the trading programs 

under the Transport Rule for 

participation in CAIR for the purposes 

of satisfying regional haze requirements 

and would remedy the CAIR-related 

deficiencies discussed above. 

Comment 3: The Commenter 

identifies its opposition to EPA’s 

December 30, 2011, proposed 

rulemaking to find that the Transport 

Rule is better than BART and to ‘‘use 

the Transport Rule as an alternative to 

BART’’ for Kentucky and other states 

subject to the Transport Rule. The 

Commenter incorporates its comments 

on that December 30, 2011, rulemaking 

‘‘by reference’’ and outlines several of 

those comments, including its 

arguments that the Transport Rule is not 

‘‘better than BART’’ and that EPA 

cannot rely on the Transport Rule as an 

‘‘alternative program or measure to 

displace BART requirements for those 

BART-eligible sources in Transport Rule 

states.’’ 

Response 3: In today’s rule, EPA is 

taking final action on the limited 

approval and limited disapproval of 

Kentucky’s regional haze SIP. The 

Commenter correctly recognizes that 

EPA did not propose to find that 

participation in the Transport Rule is an 

alternative to BART in this rulemaking. 

As noted above, EPA made this 

proposed finding in a separate action on 

December 30, 2011, and the Commenter 

is merely reiterating and incorporating 

its comments on that separate action. 

These comments are therefore beyond 

the scope of this rulemaking and will be 

addressed, as appropriate, by EPA in its 

final action on the December 30, 2011, 

proposed rule. 

Comment 4: The Commenter believes 

that the 2018 emissions inventory is not 

approvable because Kentucky relied on 

the not-yet-approved Charlotte/ 

Gastonia/Rock Hill 1997 8-hr ozone 

nonattainment area SIP; consent decrees 

for EKPC and American Electric Power 

(AEP) that allow for various compliance 

options; and the Industrial Boiler 

Maximum Achievable Control 

Technology (MACT) rule. The 

Commenter also believes that it is 

irrational and arbitrary for EPA to 

expect that the State will issue case-bycase MACT determinations through title 

V renewal permits in a timely manner. 

Response 4: EPA does not expect that 

minor inventory differences like those 

alleged, even if they occur, would affect 

the adequacy of Kentucky’s regional 

haze SIP. The technical information 

provided in the record demonstrates 

that the emissions inventory in the SIP 

adequately reflects projected 2018 

conditions and should be approved. 

Kentucky’s 2018 projections are based 

on the Commonwealth’s technical 

analysis of the anticipated emissions 

rates and level of activity for EGUs, 

other point sources, nonpoint sources, 

on-road sources, and off-road sources 

based on their emissions in the 2002 

base year, considering growth and 

additional emissions controls to be in 

place and federally enforceable by 2018. 

The emissions inventory used in the 

regional haze technical analyses was 

developed by Visibility Improvement 

State and Tribal Association of the 

Southeast (VISTAS) with assistance 

from Kentucky. The 2018 emissions 

inventory was developed by projecting 

2002 emissions (the latest region-wide 

inventory available at the time the 

submittal was being developed) and 

applying reductions expected from 

federal and state regulations affecting 

the emissions of VOC and the visibilityimpairing pollutants NOX, particulate 

matter (PM), and SO2. 

To minimize the differences between 

the 2018 projected emissions used in 

the Kentucky regional haze submittal 

and what actually occurs in 2018, the 

RHR requires that the five-year review 

address any expected significant 

differences due to changed 

circumstances from the initial 2018 

projected emissions, provide updated 

expectations regarding emissions for the 

implementation period, and evaluate 

the impact of these differences on RPGs. 

It is expected that individual projections 

within a statewide inventory will vary 

from actual emissions over a 16-year 

period. For example, some facilities 

shut down whereas others expand 

operations. Furthermore, economic 

projections and population changes 

used to estimate growth often differ 

from actual events; new rules are 

modified, changing their expected 

effectiveness; and methodologies to 

estimate emissions improve, modifying 

emissions estimates. The five-year 

review is a mechanism to assure that 

these expected differences from 

projected emissions are considered and 

their impact on the 2018 RPGs is 

evaluated. 

In the specific instances cited by the 

Commenter, the Commonwealth’s 

analysis of projected emissions meets 

the requirements of the regional haze 

regulations and EPA guidance. In the 

cases of the two NOX sources in 

Charlotte (Philip Morris and Norandal), 

the projected emissions reductions have 

already occurred or installation of 


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control equipment is underway and the 

differences between projected emissions 

and actual emissions, if there are any, 

are likely to be too small to affect any 

of Kentucky’s modeling. For the EGUs 

in Kentucky (EKPC’s Spurlock and 

Cooper plants and AEP’s Big Sandy 

Plant (Big Sandy)), the Commonwealth 

adjusted the Integrated Planning Model 

(IPM) projections that VISTAS used for 

the inventory projections to postpone 

the NOX and SO2 controls that IPM 

projected for 2009 based on the terms of 

the consent decrees for EKPC and AEP. 

Regarding the changes to the 

Industrial Boiler MACT rule, VISTAS 

projected that the emissions reductions 

resulting from the original, vacated 

Industrial Boiler MACT rule would be 

0.1 to 0.2 percent, depending on the 

pollutant, of the projected 2018 SO2, 

PM2.5, and coarse particulate matter 

(PM10) inventory. EPA has repromulgated an Industrial Boiler MACT 

rule that is at least equivalent to the one 

vacated with regard to the issues raised 

by the Commenter, and EPA expects 

that this rule will result in lower 

emissions from the affected facilities 

than those originally projected for 2018. 

Further, as discussed in the December 

16, 2011, proposed rulemaking, there 

are provisions for case-by-case controls 

should the Industrial Boiler MACT rule 

not be implemented pursuant to its 

currently anticipated schedule. 

Comment 5: The Commenter contends 

that EPA must disapprove the Kentucky 

SIP revisions with regard to the 

modeling if the ‘‘modified version’’ of 

EPA’s Models-3/Community Multiscale 

Air Quality (CMAQ) model used by the 

Commonwealth has not been 

established to be consistent with 

Appendix W. The Commenter also 

states that the modeling uses 

meteorology from 2002 that is out of 

date and not representative of 2018 or 

2064, especially considering climate 

change. According to the Commenter, 

EPA must therefore disapprove the 

modeling, require Kentucky to use 

recent meteorological data, and require 

that the modeling consider what 

impacts climate change will have on 

future visibility impairment, ozone 

formation, and other factors that 

influence visibility impairment such as 

relative humidity. 

Response 5: The modeling used by 

Kentucky is consistent with Appendix 

W. EPA’s guidance does not require a 

specific modeling system for evaluating 

photochemical phenomena. EPA’s 

CMAQ modeling system is one of the 

photochemical grid models available 

capable of addressing ozone, PM, 

visibility, and acid deposition on a 

regional scale. The photochemical 

model that VISTAS selected for this 

study was CMAQ version 4.5. VISTAS 

modified the module for secondary 

organic aerosols in an open and 

transparent manner that was also 

subjected to outside peer review (see 

Appendix C of the Kentucky regional 

haze SIP, located in the docket for this 

action, for more information on the 

model selection criteria). The 

procedures and analyses used in the 

CMAQ modeling were developed in 

consultation with the appropriate 

reviewing authorities and the affected 

federal land managers (FLMs). 

The modeling system based on the 

CMAQ photochemical model with a 

modified secondary aerosol module and 

used in the regional assessment of 

regional haze was developed and 

applied consistent with EPA’s Guidance 

on the Use of Models and Other 

Analyses for Demonstrating Attainment 

of Air Quality Goals for Ozone, PM2.5,

and Regional Haze, located at http://

www.epa.gov/scram001/guidance/

guide/final-03-pmrh-guidance.pdf, 

(EPA–454/B–07–002), April 2007, and 

the EPA document entitled, Emissions 

Inventory Guidance for Implementation 

of Ozone and Particulate Matter 

National Ambient Air Quality 

Standards (NAAQS) and Regional Haze 

Regulations, located at http://

www.epa.gov/ttnchie1/eidocs/eiguid/

index.html, EPA–454/R–05–001, August 

2005, updated November 2005 (‘‘EPA’s 

Modeling Guidance’’). 

VISTAS developed the technical 

analyses supporting Kentucky’s regional 

haze SIP in the 2003–2006 time period; 

therefore, the use of 2002 data is 

appropriate and consistent with the EPA 

memorandum authored by Lydia 

Wegman entitled, 2002 Base Year 

Emissions Inventory SIP Planning: 8-hr 

Ozone, PM2.5 and Regional Haze 

Programs, located at http://

www.epa.gov/ttnchie1/eidocs/2002

baseinven_102502new.pdf. With regard 

to using meteorology from any chosen 

year, the issue is whether the chosen 

year is representative, not whether it is 

‘‘out of date.’’ VISTAS conducted an indepth analysis which resulted in the 

selection of the entire year of 2002 

(January 1–December 31) as the best 

period of meteorology available for 

conducting the CMAQ modeling for the 

chosen base year of 2002. 

Regarding the comment that the 

modeling must consider the impacts of 

climate change, the use of 2002 

meteorology without adjustment is more 

appropriate and more consistent with 

existing agency guidance. EPA disagrees 

with the Commenter’s position on this 

issue, a position that the Commenter has 

raised in prior Kentucky SIP 

rulemakings. As explained in more 

detail in those responses, modeling 

guidance is not yet available for the type 

of area-specific analysis of effects of 

climate change required for SIP 

planning. It is therefore premature to 

require a precise mathematical 

accounting in the SIP process for the 

effect of higher ambient temperatures 

due to climate change. The use of 

unadjusted meteorological input is 

consistent with how photochemical 

modeling demonstrations are developed 

for regulatory analyses. The 2002 

meteorological data is used to support 

the base and future year modeling. The 

rationale for its use in the base year is 

to test the model’s performance in 

reproducing observed temporal and 

concentration spatial patterns. It is also 

used in the future year modeling for 

2018 to test how control strategy is 

sufficient address the conditions 

observed in the base year of 2002. The 

2064 year is not included or addressed 

in the regional haze SIP in this round of 

submittals. 

Comment 6a: The Commenter states 

that Kentucky excluded the auxiliary 

boiler at Big Sandy from a BART 

analysis because it only operated for 

short periods of time during startup and 

emissions tests. According to the 

Commenter, EPA cites no authority for 

this proposition, mentions no 

enforceable conditions that limit Big 

Sandy’s auxiliary boiler operations, and 

thus, EPA must disapprove the SIP for 

failure to have a BART analysis for Big 

Sandy’s auxiliary boiler. 

Response 6a: Kentucky addressed the 

exclusion of this auxiliary unit in an 

approved modeling protocol. Tables B1 

through B4 in Appendix L.5 of 

Kentucky’s June 25, 2008, regional haze 

SIP revision present the operating data 

for the auxiliary boiler at Big Sandy for 

the period June 22, 2003, through 

September 24, 2006. During this time, 

the boiler had an average annual 

operating factor of 1.16 percent based on 

the facility’s actual operating hours with 

a range of 0.3 percent in 2005 to 2.68 

percent for January to September 2006. 

With the exception of September 2003, 

when the boiler was operated for NOX

SIP Call Low Mass Emitter certification 

testing and related operations checks 

(this testing is required every five years), 

and during October 2004, when the 

boiler was operated periodically over a 

three-day period while both generating 

units were out of service, the normal 

operating pattern of the boiler is for it 

to only be fired at low load periodically 

for a few minutes to test its ability to be 

started and for use in starting up Unit 

2. EPA agrees with Kentucky that this 


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data justifies not considering this boiler 

in the BART analysis. 

Comment 6b: The Commenter 

contends that the BART analysis for Big 

Sandy units 1 and 2 fails to consider: 

Wet electrostatic precipitators (ESPs); 

switching to a lower sulfur coal either 

entirely or as a blend or co-firing natural 

gas or biomass; a circulating fluid bed 

(CFB) scrubber; a spray dry absorption 

(SDA) scrubber; installing a fabric filter 

(FF); upgrading the current ESPs to 

increase the size and/or change from 

wire to rigid discharge electrode; 

changing the operation of the air 

preheater; or trona injection coupled 

with replacing the ESP with a new ESP. 

Because the BART analysis allegedly 

failed to consider all available retrofit 

technologies, the Commenter states that 

EPA must disapprove the SIP with 

regard to the PM BART determination 

for Big Sandy. The Commenter also 

believes that EPA must disapprove the 

SIP because it does not contain a ‘‘firm’’ 

closure date for unit 1; an enforceable 

deadline for the installation of the flue 

gas desulfurization (FGD) on unit 2 and 

the ammonia injection on unit 1; and an 

emissions limit for condensable PM 

from both units. 

Response 6b: As stated in Appendix 

Y of 40 CFR part 51, available retrofit 

control options are those air pollution 

control technologies with a practical 

potential for application to the 

emissions unit and the regulated 

pollutant under evaluation. In 

identifying ‘‘all’’ options, a state must 

identify the most stringent option and a 

reasonable set of options for analysis 

that reflects a comprehensive list of 

available technologies. It is not 

necessary to list all permutations of 

available control levels that exist for a 

given technology; the list is complete if 

it includes the maximum level of 

control that each technology is capable 

of achieving. Furthermore, EPA does not 

consider BART as a requirement to 

redesign the source when considering 

available control alternatives. For 

example, where the source subject to 

BART is a coal-fired EGU, EPA does not 

require the BART analysis to consider 

building a natural gas-fired electric 

turbine although the turbine may be 

inherently less polluting on a per unit 

basis. 

AEP performed a full BART analysis 

for particulates, with its primary focus 

on the condensable fraction due to the 

minimal impact from the primary 

particulates since both units are 

currently equipped with ESPs for 

primary particulate control. AEP 

evaluated five combinations of 

condensable particulate control options 

for the two units. For unit 1, AEP only 

considered injecting ammonia or 

injecting trona, a mineral composed 

primarily of sodium and carbonate, for 

the reduction of inorganic condensables. 

For unit 2, AEP considered injecting 

ammonia, injecting trona, or installing a 

wet FGD system. 

In addition, AEP determined that the 

options involving injecting trona on 

either unit at Big Sandy were 

technically infeasible. Based on the 

experience of AEP at units where 

sorbents are injected for the reduction of 

inorganic condensables, the presently 

installed ESPs at both Big Sandy units 

are unsuitable for trona injection. 

For Big Sandy units 1 and 2, the 

company agreed to install ammonia 

injection controls on unit 1 and a FGD 

on unit 2. KYDAQ reviewed the source’s 

BART modeling determination and 

available data. Considering the statutory 

factors, Kentucky determined that the 

controls proposed by AEP are 

reasonable and appropriate for 

addressing condensable particulates and 

their impacts on nearby Class I areas. 

EPA agrees with Kentucky’s analyses 

and conclusions. EPA has reviewed the 

Commonwealth’s analyses and 

concluded that they were conducted in 

a manner that is consistent with EPA’s 

BART Guidelines and EPA’s Air 

Pollution Control Cost Manual (http:// 

www.epa.gov/ttncatc1/ 

products.html#cccinfo). 

Regarding AEP’s decision not to 

evaluate installation of a wet FGD on 

unit 1 because of its age, EPA would 

generally not rely on an assertion that a 

unit would shut down without a legally 

enforceable condition requiring 

shutdown of the unit at issue. Kentucky 

has determined that BART for unit 1 is 

ammonia injection. As noted in EPA’s 

December 16, 2011, proposed 

rulemaking, on June 9, 2011, AEP 

announced that Big Sandy unit 1 would 

be retired by December 31, 2014, and 

unit 2 would be rebuilt as a natural gasfired plant by December 31, 2015. Since 

that announcement, AEP modified its 

plans to convert unit 2 from coal to gas 

power. It now plans to construct a dry 

FGD or ‘‘scrubber’’ system on unit 2, the 

plant’s 800-megawatt electricity 

generation unit. However, AEP still 

plans to shut down unit 1 (the older of 

the two; rated at 278 megawatts) and to 

retire it at the end of 2014. On December 

5, 2011, the company made a formal 

filing of an Application for a Certificate 

of Public Convenience and Necessity 

before the Kentucky Public Service 

Commission, which must approve the 

project and investment. As the company 

continues the required proceedings for 

closure of unit 1, requiring additional 

analysis would not likely change the 

conclusions of the BART analysis. In 

any case, if the decision to close unit 1 

should be reversed, the requirements for 

an ammonia scrubber remain in place. 

Comment 6c: According to the 

Commenter, EPA should clarify whether 

the 99 percent removal efficiency for the 

existing ESP at the E.ON U.S. Mill Creek 

Station (Mill Creek) is for filterable or 

condensable PM. If it is filterable, the 

Commenter believes that it is arbitrary 

to base a BART analysis on the current 

removable rate for filterable PM when 

the BART analysis is supposed to 

address condensable PM. The 

Commenter also states that the BART 

analysis rejects pulse jet fabric filter 

(PJFF) and wet ESP based solely on the 

incremental cost and admits that the 

average cost effectiveness for sorbent 

injection on all four units is about the 

same. ‘‘Apparently, the BART analysis 

rejects sorbent injection on units 1 and 

2 because it would cost more to install 

pollution controls on all four units than 

on just two units. * * * [t]his is not a 

rationale basis for rejecting sorbent 

injection in units 1 and 2.’’ The 

Commenter further contends that EPA 

must disapprove Kentucky’s regional 

haze SIP with regard to the PM BART 

analysis for Mill Creek since the 

analysis fails to consider: Switching to 

a lower sulfur coal either entirely or as 

a blend or co-firing natural gas or 

biomass; CFB scrubbers; SDA scrubbers; 

upgrading existing scrubbers; upgrading 

the current ESPs to increase the size 

and/or change from wire to rigid 

discharge electrode; or changing the 

operation of the air preheater. 

Response 6c: The existing ESP 

removal efficiency referred to by the 

Commenter is for filterable particulates. 

These filterable emissions, which are 99 

percent controlled, are a substantial 

portion of the facility’s potential PM 

emissions and maintaining these limits 

for regional haze is appropriate. For the 

two units where additional PM controls 

are being adopted for BART, the 

Commonwealth has adopted additional 

emissions limits to handle condensable 

PM (primarily in the form of SO3/ 

H2SO4), to address those emissions not 

controlled by the filterable emissions 

limit. As documented in Kentucky’s 

May 28, 2010, revision to its regional 

haze SIP, the title V permitted BART 

emissions limits for Mill Creek Units 3 

and 4 are 64.3 pounds per hour (lb/hr) 

and 76.5 lb/hr, respectively, for sulfuric 

acid mist (H2SO4). These are new BART 

limits for the two units for which 

controls on condensable particulates are 

being installed. 

Regarding the technologies 

considered in the BART analysis for 

Mill Creek, as stated in Appendix Y of 


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40 CFR part 51, available retrofit control 

options are those air pollution control 

technologies with a practical potential 

for application to the emissions unit and 

the regulated pollutant under 

evaluation. In identifying ‘‘all’’ options, 

a state must identify the most stringent 

option and a reasonable set of options 

for analysis that reflects a 

comprehensive list of available 

technologies. It is not necessary to list 

all permutations of available control 

levels that exist for a given technology; 

the list is complete if it includes the 

maximum level of control that each 

technology is capable of achieving. 

Furthermore, EPA does not consider 

BART as a requirement to redesign the 

source when considering available 

control alternatives. For example, where 

the source subject to BART is a coalfired EGU, EPA does not require the 

BART analysis to consider building a 

natural gas-fired electric turbine 

although the turbine may be inherently 

less polluting on a per unit basis. 

Similarly, EPA does not interpret the 

CAA or the RHR as requiring states to 

consider limiting the type of coal 

burned as a BART control technology. 

For the Mill Creek BART analysis, the 

Commonwealth concluded that the 

technically feasible technologies for 

evaluation in accordance with Step 2 of 

the BART analysis included the existing 

cold-side ESP and PJFF for PM, and 

sorbent injection and a wet ESP for 

sulfates. From this list of technically 

feasible control technologies, the 

existing cold-side ESP is already in 

place at all four units at Mill Creek. 

Therefore, only the three additional 

control technologies were subjected to 

the remaining engineering analysis 

process to determine BART technologies 

for visibility modeling. The existing 

cold-side ESPs at all four units at Mill 

Creek are already demonstrating high 

PM removal efficiencies of 99 percent, 

and all four units are already equipped 

with wet FGD systems for SO2 removal, 

limiting the additional available options 

for sulfite (SO3) condensable particulate 

control. The incremental cost 

effectiveness of PJFF and a wet ESP 

ranged from $20,380 to $52,190 per ton 

of PM reduced, and these options were 

not considered further. Sorbent 

injection was more cost effective, 

ranging from $4,293 to $5,017 per ton of 

PM reduced. 

As discussed in the December 16, 

2011, proposed rulemaking, Kentucky 

determined that BART for Mill Creek is 

the installation of sorbent injection 

controls on the larger units 3 and 4. 

Kentucky did not require BART controls 

on units 1 and 2 because controls on 

these units would nearly double the cost 

(an additional $8.8 million beyond the 

$10.5 million for controls on units 3 and 

4) for a visibility improvement of 0.36 

deciview (compared with a 0.83 

deciview improvement from controlling 

units 3 and 4). The Commonwealth 

therefore concluded that controls on 

units 1 and 2 were not as cost effective. 

As is noted in the BART guidelines, 

the Commonwealth has discretion in 

assigning the proper weight and 

significance to each of the five statutory 

factors that it must consider in making 

a BART determination. EPA has 

reviewed the Commonwealth’s analyses 

and concluded they were conducted in 

a manner that is consistent with EPA’s 

BART Guidelines and EPA’s Air 

Pollution Control Cost Manual (http:// 

www.epa.gov/ttncatc1/ 

products.html#cccinfo). Therefore, 

Kentucky’s determination reflects a 

reasonable application of EPA’s 

guidance to these sources. 

Comment 6d: The Commenter 

contends that EPA must disapprove the 

BART determinations for EKPC’s 

Spurlock and Cooper Stations since the 

BART analysis provides no limit on 

condensable PM and fails to consider 

switching to a lower sulfur coal either 

entirely or as a blend; co-firing natural 

gas or biomass; or changing the 

operation of the air preheater. 

Response 6d: Regarding the 

technologies considered in the BART 

analyses for Spurlock and Cooper, as 

stated in Appendix Y of 40 CFR part 51, 

available retrofit control options are 

those air pollution control technologies 

with a practical potential for application 

to the emissions unit and the regulated 

pollutant under evaluation. In 

identifying ‘‘all’’ options, a state must 

identify the most stringent option and a 

reasonable set of options for analysis 

that reflects a comprehensive list of 

available technologies. It is not 

necessary to list all permutations of 

available control levels that exist for a 

given technology; the list is complete if 

it includes the maximum level of 

control each technology is capable of 

achieving. Furthermore, EPA does not 

consider BART as a requirement to 

redesign the source when considering 

available control alternatives. For 

example, where the source subject to 

BART is a coal-fired EGU, EPA does not 

require the BART analysis to consider 

building a natural gas-fired electric 

turbine although the turbine may be 

inherently less polluting on a per unit 

basis. 

EKPC evaluated three options and 

agreed to install the top ranking option 

of wet FGD for SO2 control and wet ESP 

for PM control for both Spurlock and 

Cooper. These controls are consistent 

with those in a consent decree that 

EKPC entered into with EPA that will 

address condensable particulate 

emissions and other visibility impairing 

pollutants. Kentucky subsequently 

modified this BART determination in its 

May 28, 2010, regional haze SIP revision 

with a comparably effective option at 

Cooper Units 1 and 2 of dry FGD and 

FF emissions controls for the wet FGD 

and wet ESP controls. EPA believes that 

Kentucky has appropriately addressed 

BART for this facility. 

Comment 6e: For the Tennessee 

Valley Authority’s (TVA’s) Paradise 

Fossil Plant (TVA Paradise), the 

Commenter contends that the BART 

analysis fails to consider switching to a 

lower sulfur coal (either entirely or as a 

blend); co-firing natural gas or biomass; 

a wet FGD; a dry CFB scrubber; a SDA 

scrubber; or changing the operation of 

the air preheater. For these reasons, the 

Commenter believes that EPA must 

disapprove this BART determination. 

Response 6e: Regarding the 

technologies considered in the BART 

analysis for TVA Paradise, as stated in 

Appendix Y of 40 CFR part 51, available 

retrofit control options are those air 

pollution control technologies with a 

practical potential for application to the 

emissions unit and the regulated 

pollutant under evaluation. In 

identifying ‘‘all’’ options, a state must 

identify the most stringent option and a 

reasonable set of options for analysis 

that reflects a comprehensive list of 

available technologies. It is not 

necessary to list all permutations of 

available control levels that exist for a 

given technology; the list is complete if 

it includes the maximum level of 

control that each technology is capable 

of achieving. Furthermore, EPA does not 

consider BART as a requirement to 

redesign the source when considering 

available control alternatives. For 

example, where the source subject to 

BART is a coal-fired EGU, EPA does not 

require the BART analysis to consider 

building a natural gas-fired electric 

turbine although the turbine may be 

inherently less polluting on a per unit 

basis. 

All three units at TVA Paradise are 

already equipped with FGD systems. 

These systems are in the process of 

being upgraded, and TVA believes that 

the work should be completed by 

December 31, 2012. The BART analysis 

focused on control of condensable PM 

(primarily in the form of SO3/H2SO4). 

TVA concluded that neither of the two 

control options evaluated (wet ESP and 

hydrated lime injection) were cost 

effective, and the Commonwealth 

concurred. However, as discussed in the 

December 16, 2011, proposed 


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rulemaking, TVA plans to install 

hydrated lime injection controls on TVA 

Paradise units 1–3 to mitigate opacity 

due to SO3 emissions, and these 

controls are required to be in place 

pursuant to the December 15, 2009, title 

V permit for the facility. EPA therefore 

believes that Kentucky has 

appropriately addressed BART for this 

facility. 

Comment 6f: The Commenter makes 

several statements regarding PM BART 

emissions limits. First, the Commenter 

believes that emissions limits at all 

‘‘subject to BART’’ units must have an 

averaging time, testing, and monitoring 

for condensable PM that assures 

compliance with the condensable PM 

limits at all times, including during 

startup, shutdown, and malfunction. 

Second, the Commenter asserts that all 

emissions limits contained in consent 

decrees must be added to the SIP 

because consent decrees can be 

modified without public participation 

and are eventually terminated. Third, 

the Commenter explains that, in its 

opinion, PM BART emissions limits 

must be effective as soon as practical, 

and that EPA must determine when this 

is. The Commenter goes on to state that 

EPA ‘‘cannot just say it has to be 

effective as soon as practical’’ since this 

is ‘‘too vague to be enforceable.’’ For 

units using existing pollution controls, 

‘‘the emissions limits should be 

effective on the date of publication of 

the final rule. For other units, EPA 

should determine what is the quickest 

time the new equipment can be 

installed and fully operational.’’ For 

these reasons, the Commenter claims 

that EPA must disapprove the SIP 

submittal. 

Response 6f: The adopted BART 

emissions limits all have testing and 

monitoring requirements that will be 

included in the respective title V 

operating permit. The consent decrees 

stipulate these requirements and 

explicitly address how startup, 

shutdown, and malfunctions are to be 

considered. These agreements also 

require that the consent decrees remain 

in force until the title V permit is 

issued. Since these limits have been 

formally adopted by Kentucky in its 

regional haze SIP, these requirements 

will become federally enforceable once 

EPA approves the SIP revisions. The 

title V permit, which documents all 

enforceable provisions, will also be 

updated at the appropriate time. All 

BART emissions limits are contained in 

the SIP, including the limits that also 

appear in consent decrees, and therefore 

meet the requirement that the limits be 

federally enforceable. Regarding BART 

effective dates, 40 CFR 51.308(e)(1)(iv) 

states that ‘‘* * * each source subject to 

BART be required to install and operate 

BART as expeditiously as practicable, 

but in no event later than 5 years after 

approval of the implementation plan 

revision,’’ and Kentucky adopted 

requirements consistent with this 

regulation. 

Comment 7: The Commenter suggests 

that EPA should ‘‘issue a new proposal 

and hold a new public comment 

period’’ because the ‘‘Federal Register 

notice of EPA’s proposed rule does not 

include the actual language which EPA 

is proposing to include in the Kentucky 

SIP.’’ 

Response 7: EPA disagrees with the 

Commenter’s position on the content of 

EPA’s December 16, 2011, proposed 

rulemaking, a position that the 

Commenter has raised in several prior 

SIP rulemakings. Neither the CAA nor 

the Administrative Procedure Act 

mandates that the proposed and final 

Federal Register rulemaking actions 

include the complete text of the 

proposed SIP revision. The December 

16, 2011, proposed rulemaking satisfies 

the notice requirements by providing 

citations to the rules at issue, offering 

the SIP revisions for public review, and 

describing the subjects and issues 

involved in the SIP revisions. 

Publication in the Federal Register is 

costly and resource intensive, and EPA 

makes every effort to provide key 

information in proposal notices while at 

the same time using Agency resources 

efficiently. EPA drafts rulemaking 

notices to enable public understanding 

of the subjects and issues at hand. EPA 

included the complete text of the SIP 

revisions in the docket at the time that 

it issued the proposed rule and it 

remains available for public view. The 

docket for this action is available at 

www.regulations.gov under Docket 

Identification No. EPA–R04–OAR– 

2009–0783. In addition, the public may 

also contact the listed contacts for any 

further information or questions. 

Comment 8: The Commenter contends 

that Kentucky’s regional haze SIP must 

require revisions to address Reasonably 

Attributable Visibility Impairment 

(RAVI) within three years of a FLM 

certifying visibility impairment and that 

the Commonwealth’s commitment to 

address RAVI should a FLM certify 

visibility impairment is not enough. The 

Commenter also contends that the SIP 

must require Kentucky to submit a 

report to EPA on progress towards the 

RPGs and that the Commonwealth’s 

commitment to do so is not sufficient. 

Response 8: The SIP revisions do not 

address RAVI requirements since this 

was the subject of previous rulemakings 

(see the response to Comment 11). 

EPA’s visibility regulations direct states 

to coordinate their RAVI LTS provisions 

with those for regional haze and the 

RAVI portion of a SIP must address any 

integral vistas identified by the FLMs. 

However, as stated in the December 16, 

2011, proposed rulemaking, the FLMs 

have not identified any integral vistas in 

Kentucky, the Class I area in Kentucky 

is not experiencing RAVI, and no 

Kentucky sources are affected by the 

RAVI provisions. Thus, the June 25, 

2008, Kentucky regional haze SIP 

revisions did not explicitly address the 

coordination of the regional haze with 

the RAVI LTS although Kentucky made 

a commitment to address RAVI should 

the FLM certify visibility impairment 

from an individual source. EPA finds 

that Kentucky’s regional haze SIP 

appropriately supplements and 

augments the Commonwealth’s RAVI 

visibility provisions to address regional 

haze by updating the LTS provisions as 

Kentucky has done. 

Regarding reports on progress toward 

RPGs, 40 CFR 51.308(g) requires states 

to ‘‘submit a report to [EPA] every 5 

years evaluating progress towards the 

reasonable progress goal for each 

mandatory Class I Federal area located 

within the State and in each mandatory 

Class I Federal area located outside the 

State which may be affected by 

emissions from within the State.’’ It is 

unnecessary for a state rule to make this 

enforceable since it is part of EPA’s 

regional haze regulations (i.e., an 

enforceable requirement). The progress 

reports must be in the form of a SIP 

revision and are therefore subject to the 

requirements for SIP revisions in the 

CAA and to EPA’s review and approval. 

The commitments in Kentucky’s SIP are 

consistent with the regulatory 

requirements for this provision. 

Comment 9a: The Commenter claims 

that Kentucky’s regional haze SIP does 

not explain how monitoring data and 

other information is used to determine 

the contribution of emissions from 

within the Commonwealth to regional 

haze visibility impairment at Class I 

areas within and outside Kentucky. 

Therefore, the Commenter believes that 

EPA must disapprove Kentucky’s 

regional haze SIP. 

Comment 9b: The Commenter states 

that the SIP must clearly state the 

method by which the Commonwealth 

intends to report visibility modeling to 

the EPA. Additionally, the Commenter 

states that if Kentucky plans to rely on 

the referenced Visibility Information 

Exchange Web System (VIEWS) Web 

site for reporting, the SIP must clearly 

state, not imply, that Kentucky intends 

to use the Web site as its way of 

reporting visibility monitoring data. ‘‘If 


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Kentucky intends to use another method 

of reporting visibility, the proposal need 

to explain this. If Kentucky intends to 

use this web site, it is not sufficient that 

Kentucky is ‘encouraging’ VISTAS to 

maintain this web site.’’ The Commenter 

also states that the Kentucky SIP needs 

to have an enforceable mechanism to 

transmit the Interagency Monitoring of 

Protected Visual Environments 

(IMPROVE) data to EPA as well as an 

enforceable mechanism to ensure that 

the IMPROVE data is continually 

gathered. The ‘‘SIP must include an 

enforceable requirement that the data is 

gathered by Kentucky unless it is 

gathered by other entities such as 

VISTAS and the National Park Service.’’ 

The Commenter concludes by stating 

that ‘‘EPA must disapprove the SIP 

submittal in this regard because such an 

enforceable requirement is missing.’’ 

Response 9a, 9b: The primary 

monitoring network for regional haze in 

Kentucky is the IMPROVE network. 

There is currently one IMPROVE site in 

the Commonwealth, which serves as the 

monitoring site for Mammoth Cave 

National Park in Kentucky. IMPROVE 

monitoring data from 2000–2004 serves 

as the baseline for the regional haze 

program, and is relied upon in the 

Kentucky regional haze submittal. 

Monitoring data is different from 

emissions data or analyses conducted to 

attribute contribution. These analyses 

are part of the ten-year planning period 

updates conducted by the states. 

In its SIP revisions, Kentucky states 

its intention to rely on the IMPROVE 

network for complying with the regional 

haze monitoring requirement in EPA’s 

RHR for the current and future regional 

haze implementation periods. Data 

produced by the IMPROVE monitoring 

network will be used nearly 

continuously for preparing the five-year 

progress reports and the 10-year SIP 

revisions, each of which relies on 

analysis of the preceding five years of 

data. The VIEWS Web site has been 

maintained by VISTAS and the other 

regional planning organizations (RPOs) 

to provide ready access to the IMPROVE 

data and data analysis tools. Kentucky 

is encouraging VISTAS and the other 

RPOs to maintain the VIEWS or a 

similar data management system to 

facilitate analysis of the IMPROVE data. 

Kentucky cannot legally bind federal 

and state legislatures to continue to 

fund the monitoring program for 

regional haze. Kentucky’s SIP 

adequately addresses this provision and 

explains how monitoring data and other 

information has been and will be used 

to determine the contribution of 

emissions from within the 

Commonwealth to regional haze 

visibility impairment at Class I areas. 

Comment 9c: According to the 

Commenter, there is no indication that 

Kentucky developed an emissions 

inventory for the most recent year for 

which data are available (2008, 2009 or 

2010), and EPA must disapprove the SIP 

on this point. The Commenter also 

states that there are no requirements for 

reporting, recordkeeping, and other 

measures necessary to assess and report 

on visibility, and therefore, EPA must 

also disapprove on this point. 

Response 9c: There are no 

requirements relating to reporting and 

recordkeeping of emissions to assess 

and report on visibility other than those 

that relate to the submittal the five-year 

review. The analyses performed in 

support of Kentucky’s SIP revisions 

were conducted in the 2003–2006 time 

period. EPA therefore finds the use of 

the 2002 emissions inventory to be 

appropriate. The necessary data to 

assess the SIP submission are contained 

in the appendices to the 

Commonwealth’s 2008 regional haze 

submittal. For the more voluminous 

data such as modeling files, please see 

Appendix I of the 2008 SIP submittal for 

data access instructions. The next 

inventory submittal will be part of the 

five-year review, and VISTAS has been 

working with its states to develop a 

comprehensive baseline inventory 

(expected to be for 2007 and updated 

with appropriate additional later 

information) which will be part of the 

five-year submittal. The record 

demonstrates that Kentucky’s SIP 

adequately addresses the emissions 

inventory requirement. 

Comment 10: The Commenter states 

that Kentucky did not adequately 

respond to requests from Maine, 

Vermont, New Jersey, and New 

Hampshire for a 28 percent reduction in 

SO2 emissions from non-EGU sources 

and a 90 percent reduction in SO2

emissions from 14 Kentucky EGUs. 

With regard to the EGUs, the 

Commenter further explains that 

Kentucky’s assertion that 93 percent of 

these 14 EGUs have or will have SO2

controls by 2015 or earlier is flawed 

because having SO2 controls on EGUs 

does not necessarily mean that those 

EGUs will achieve a 90 percent 

reduction in SO2 emissions. The 

Commenter also asserts that Kentucky 

did not establish that having SO2

controls on these EGUs will address 

Kentucky’s apportioned emissions 

reductions under 40 CFR 

51.308(d)(3)(ii)–(iii) for the Class I areas 

in Maine, Vermont, New Jersey, and 

New Hampshire. For these reasons, the 

Commenter believes that EPA must 

disapprove Kentucky’s SIP with regard 

to its obligations under 40 CFR 

51.308(d)(3) to address visibility 

impacts in these states. 

Response 10: The letters sent in 2007 

from Maine, Vermont, New Jersey, and 

New Hampshire, (states in the MidAtlantic/Northeast Visibility Union 

(MANE–VU) RPO), invite Kentucky to 

participate in future consultation 

meetings because visibility impacts 

from Kentucky’s sources exceeded one 

of the minimum thresholds used by 

MANE–VU to identify sources with 

potential visibility impacts at one or 

more of the Class I areas in the MANE– 

VU region. These thresholds for 

reasonable control consideration were 

used to identify states to invite to the 

first set of inter-RPO consultation 

meetings. The states’ letters cite to the 

report entitled, Contributions to 

Regional Haze in the Northeast and 

Mid-Atlantic United States, NESCAUM, 

August 2006, http://www.nescaum.org/ 

documents/contributions-to-regionalhaze-in-the-northeast-and-mid-atlantic-- 

united-states. In accordance with 40 

CFR 51.308(d)(i), Kentucky participated 

in consultation calls and meetings in 

2007 as requested, and in the 

Commonwealth’s final SIP submittal 

dated June 25, 2008, Kentucky provided 

its final response regarding the MANE– 

VU requests. Kentucky received no 

adverse comments from any of the 

MANE–VU states during the public 

comment period on its proposed 

regional haze SIP, nor did the 

Commonwealth receive any additional 

correspondence from these states once 

Kentucky submitted its final SIP to EPA. 

Kentucky’s position is that the 

significant existing and expected EGU 

emissions controls more than 

adequately respond to the EGU and nonEGU requests from the MANE–VU RPO. 

Kentucky provided supporting 

information to address its 

apportionment of emissions reductions 

in Appendix H of its SIP; and in 

Appendix H.4, the Commonwealth 

documents the existing and planned 

controls for the Commonwealth’s EGUs, 

including those EGUs identified by 

MANE–VU. These EGU SO2 controls 

reflect what is predicted or has occurred 

to address CAIR requirements. Kentucky 

demonstrated in its SIP that no 

additional SO2 controls beyond CAIR 

are reasonable for reasonable progress 

for the first implementation period. 

Kentucky states in its SIP that it plans 

to assess the EGU controls predicted 

under CAIR with what is actually 

occurring at these sources for the first 

periodic report due five years after 

initial submittal of the first regional 

haze SIP (i.e., June 2013). 


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19106 Federal Register / Vol. 77, No. 62 / Friday, March 30, 2012 / Rules and Regulations 

2The Kentucky visibility SIP revisions to address 

Prevention of Significant Deterioration (PSD) 

provisions were submitted to EPA on February 20, 

1986, and approved by EPA September 1, 1989 (54 

FR 36311). The Commonwealth’s visibility plan 

provisions were submitted on August 31, 1987, and 

approved July 12, 1988 (53 FR 26256). The 

nonattainment NSR provisions were submitted July 

14, 2004, and approved July 11, 2006 (71 FR 38990). 

As explained in EPA’s December 16, 

2011, proposed rulemaking, prior to the 

CAIR remand by the D.C. Circuit, EPA 

believed the Commonwealth’s 

demonstration that no additional 

controls beyond CAIR are reasonable for 

SO2 for affected Kentucky EGUs for the 

first implementation period to be 

acceptable. However, the 

Commonwealth’s demonstration 

regarding CAIR and reasonable progress 

for EGUs, and other provisions in the 

Kentucky regional haze SIP, are based 

on CAIR, and thus, the Agency is 

issuing a limited approval of the 

Kentucky regional haze SIP revisions. 

Regarding non-EGU SO2 emissions, 

the Commonwealth established a 

threshold to determine which emissions 

units would be evaluated for reasonable 

progress controls, and found no 

additional SO2 controls for these 

sources are reasonable for the first 

implementation period. EPA believes 

that Kentucky has adequately addressed 

its apportionment of emissions 

reductions determined through the 

VISTAS process, and shared via 

consultation with the other RPOs, in 

accordance with 40 CFR 51.308(d)(3). 

Comment 11: The Commenter states 

that there is no evidence that 

Kentucky’s regional haze SIP revisions 

comply with the requirement in 40 CFR 

51.306(d) that the LTS provides for 

review of the impacts from any new 

major stationary source or major 

modifications on visibility in any 

mandatory Class I area in accordance 

with 40 CFR 51.307, 51.166, 51.160 and 

any binding guidance insofar as these 

provisions pertain to protection of 

visibility. The Commenter also contends 

that EPA must therefore disapprove 

Kentucky’s SIP revisions in part with 

regard to 40 CFR 51.306(d) and the 

provisions cited therein. 

Response 11: The Kentucky regional 

haze SIP revisions subject to this 

rulemaking address the regional haze 

requirements of 40 CFR 51.308 whereas 

the regulation cited by the Commenter, 

40 CFR 51.306(d), is specific to the LTS 

requirements for RAVI. Furthermore, as 

identified in footnote 18 2 of EPA’s 

December 16, 2011, proposed 

rulemaking, Kentucky has already 

addressed the new source review 

requirements for visibility (40 CFR 

51.307) and RAVI LTS (40 CFR 51.306) 

in its SIP and EPA has fully approved 

these provisions. 

Comment 12: The Commenter 

contends that EKPC agreed to install wet 

FGDs and wet ESPs at Spurlock and 

Cooper Stations pursuant to a BART 

analysis, and not pursuant to EKPC’s 

July 2, 2007, consent decree with the 

United States (United States v. EKPC, 

04–34–KSF (E.D. Ky)). The Commenter 

requests that EPA ‘‘clarify the language 

in the Proposed Rule’’ accordingly. 

Response 12: The consent decree was 

a separate action from the BART 

determination, and EPA did not intend 

to imply that the consent decree was 

entered into to address regional haze. 

Kentucky structured its SIP to meet the 

BART requirements, recognizing the 

existence of similar requirements in the 

consent decrees. EPA relied on the 

following language found in the 

Kentucky regional haze SIP revision (see 

the May 28, 2010, revised Kentucky 

regional haze SIP revision, Table 7.5.3– 

1): 

‘‘ * * * EKPC per a consent decree and 

for BART will install a wet FGD and wet 

ESP at EKPC Spurlock Units 1 and 2 

that will address condensable 

particulate emissions and other 

visibility impairing pollutants’’, and 

‘‘ * * * EKPC per a consent decree and 

for BART will install a dry FGD and 

fabric filtration at EKPC Cooper Units 1 

and 2 that will address condensable 

particulate emissions and other 

visibility impairing pollutants.’’ 

Comment 13: According to the 

Commenter, EPA’s December 16, 2011, 

proposed rulemaking incorrectly states 

that the EKPC consent decree provides 

for a filterable PM emissions rate of 0.03 

pound per million British Thermal Unit 

(lb/MMBtu), and therefore, EPA should 

delete any reference indicating that the 

consent decree provides for this 0.03 lb/ 

MMBtu rate for any EKPC unit and any 

references to this emissions rate. 

Response 13: EPA reviewed the 

consent decree and the SIP language 

again in response to this comment. EPA 

concludes that the Commenter is correct 

that the consent decree provided other 

alternatives to developing a filterable 

particulate limit. However, Kentucky’s 

regional haze SIP is explicit in several 

instances that EKPC identified, and the 

Commonwealth accepted, the 0.03 lb/ 

MMBtu limit as BART. EPA points the 

Commenter to the following statements 

in Kentucky’s regional haze SIP 

revisions: 

‘‘* * * A 07/02/07 EKPC consent 

decree provides a filterable PM emission 

rate of 0.030 lb/MMBtu, which was 

utilized to demonstrate modeled 

visibility improvement. Emission limits 

and controls will be included in the 

source’s Title V Permit as appropriate or 

on renewal.’’ (May 28, 2010, revised SIP 

revision, Table 7.5.3–2). 

‘‘ * * * application of WFGD/ESP 

controls to Spurlock Units 1 and 2 and 

Cooper Units 1 and 2, with a filterable 

PM limit of 0.03 lb/MMBtu, mitigates 

any adverse visibility impacts in Class I 

areas within 300 km of each source. In 

accordance with the draft EPA consent 

decree, EKPC will apply these controls 

* * *.’’ (Appendix L.11, p.17 (EKPC 

BART determination submittal, 

included as part of the Kentucky SIP 

revision)). 

‘‘In the 2007 BART Submittal, EKPC 

determined that a WFGD/WESP control 

train capable of achieving 0.030 lb/ 

mmBtu filterable PM and 0.052lb/ 

mmBtu total PM was BART for Cooper 

Units 1 and 2. EKPC is requesting that 

it be allowed to substitute a DFGD/FF 

control train capable of achieving 0.030 

lb/mmBtu filterable PM and 0.045 lb/ 

mmBtu total PM for the WFGD/WESP 

control train previously approved 

* * *’’ (Appendix L.11, p. 197 (March 

18, 2009 submittal from EKPC to 

KYDAQ)). 

‘‘* * * Therefore, application of DFG/ 

DIFF controls to Cooper Units 1 and 2, 

with a filterable PM limit of 0.030 lb/ 

mmBtu, mitigates any adverse visibility 

impact in Class I areas within 300 km 

of each source and fulfills the BART 

requirements * * *’’ Appendix L.11, p. 

200. 

Accordingly, EPA considers the 0.03 

lb/MMBtu filterable PM emissions limit 

to be an appropriately adopted and 

enforceable SIP limit and part of the 

BART determination for EKPC Cooper 

Units 1 and 2 and Spurlock Units 1 and 

2. 

Comment 14: The Commenter 

contends that EPA should fully approve 

Kentucky’s regional haze SIP revisions 

because they are consistent with EPA’s 

regional haze rules. In support of its 

position, the Commenter states that the 

regulations allowing states to rely on 

CAIR to satisfy BART are still legally 

valid and effective, and therefore, 

Kentucky can continue to rely on CAIR. 

The Commenter also believes that EPA 

should fully approve Kentucky’s 

regional haze SIP in response to the D.C. 

Circuit’s order staying the 

implementation of the Transport Rule 

pending resolution of the legal 

challenges to the Rule. 

Response 14: EPA has the authority to 

issue a limited approval (see response to 

Comment 1) and it is appropriate and 

necessary to promulgate a limited 

approval and limited disapproval of 

Kentucky’s regional haze SIP revisions 


sroberts on DSK5SPTVN1PROD with RULES
Federal Register / Vol. 77, No. 62 / Friday, March 30, 2012 / Rules and Regulations 19107 

at this time (see response to Comment 

2). This action results in an approval of 

the entire regional haze SIP and all of 

its elements, preserving the visibility 

benefits offered by the SIP while 

providing EPA with the opportunity to 

demonstrate that the Transport Rule is 

better than BART. As noted above, EPA 

has already published a proposed rule 

reflecting this demonstration. EPA 

cannot fully approve regional haze SIP 

revisions that rely on CAIR for 

emissions reduction measures for the 

reasons discussed in section IV of the 

December 16, 2011, proposed 

rulemaking, and therefore proposed to 

grant limited approval and limited 

disapproval of the Kentucky regional 

haze SIP revisions. The D.C. Circuit’s 

order staying the Transport Rule has no 

effect on the court’s 2008 ruling in 

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

(D.C. Cir. 2008). Therefore, the proposed 

limited approval and limited 

disapproval actions remain appropriate 

for the reasons discussed in section IV 

of the December 16, 2011 proposed 

rulemaking cited above. 

Comment 15: The Commenter states 

that ‘‘EPA should promulgate 

regulations that will avoid any asserted 

need to propose or promulgate limited 

disapprovals of regional haze SIPs or to 

propose or promulgate regional haze 

FIPs for states that have relied on CAIR 

or that may rely on CSAPR, or both, as 

a BART alternative for NOX and SO2

emissions from EGUs.’’ The Commenter 

believes that EPA should promulgate 

regulations that would provide 

expressly that a state that becomes 

subject to CSAPR may choose to adopt 

a ‘‘CSAPR=BART policy that would 

apply at such time as CSAPR takes 

effect.’’ The Commenter also states that 

the ‘‘visibility-improvement benefits 

from CAIR’s emissions reductions * * * 

are likely to be replicated, or indeed 

exceeded, by the visibility benefits 

projected to result from CSAPR if 

CSAPR takes effect in the future.’’ 

Response 15: As noted in the response 

to Comment 3, this action is focused 

solely on the limited approval and 

limited disapproval of Kentucky’s 

regional haze SIP revisions submitted 

on June 25, 2008, and May 28, 2010. 

Given that the Transport Rule, or 

CSAPR, was not signed until 2011, 

neither SIP revision mentions the 

Transport Rule nor suggests that the 

Commonwealth intended to rely on the 

reductions from this rule to meet the 

regional haze requirements. EPA did not 

propose to find that participation in the 

Transport Rule is an alternative to 

BART in this rulemaking. EPA made 

this proposed finding in a separate 

action on December 30, 2011; therefore, 

these comments are beyond the scope of 

this rulemaking and will be addressed 

by EPA in its final action on the 

December 30, 2011, proposed rule. 

III. What is the effect of this final 

action? 

Under CAA sections 301(a) and 

110(k)(6) and EPA’s long-standing 

guidance, a limited approval results in 

approval of the entire SIP revision, even 

of those parts that are deficient and 

prevent EPA from granting a full 

approval of the SIP revision (see EPA’s 

1992 Calcagni Memorandum). Today, 

EPA is finalizing a limited approval of 

Kentucky’s June 25, 2008, and May 28, 

2010, regional haze SIP revisions. This 

limited approval results in approval of 

Kentucky’s entire regional haze SIP and 

all the elements. EPA is taking this 

approach because Kentucky’s SIP will 

be stronger and more protective of the 

environment with the implementation 

of those measures by the 

Commonwealth and having federal 

approval and enforceability than it 

would without those measures being 

included in Kentucky’s SIP. 

In this action, EPA is also finalizing 

a limited disapproval of Kentucky’s 

June 25, 2008, and May 28, 2010, 

regional haze SIP revisions insofar as 

these SIP revisions rely on CAIR to 

address the impact of emissions from 

the Commonwealth’s EGUs. As 

explained in the 1992 Calcagni 

Memorandum, ‘‘[t]hrough a limited 

approval, EPA [will] concurrently, or 

within a reasonable period of time 

thereafter, disapprove the rule * * * for 

not meeting all of the applicable 

requirements of the Act. * * * [T]he 

limited disapproval is a rulemaking 

action, and it is subject to notice and 

comment.’’ Final limited disapproval of 

a SIP submittal does not affect the 

federal enforceability of the measures in 

the subject SIP revision nor prevent 

state implementation of these measures. 

The legal effect of the final limited 

disapproval for Kentucky’s June 25, 

2008, and May 28, 2010, SIP revisions 

is to provide EPA the authority to issue 

a FIP at any time, and to obligate the 

Agency to take such action no more 

than two years after the effective date of 

EPA’s final action. As explained in the 

1992 Calcagni Memorandum, ‘‘[t]hrough 

a limited approval, EPA [will] 

concurrently, or within a reasonable 

period of time thereafter, disapprove the 

rule * * * for not meeting all of the 

applicable requirements of the Act. 

* * * [T]he limited disapproval is a 

rulemaking action, and it is subject to 

notice and comment.’’ 

IV. Final Action 

EPA is finalizing a limited approval 

and a limited disapproval of two 

revisions to the Kentucky SIP submitted 

by the Commonwealth of Kentucky on 

June 25, 2008, and May 28, 2010, as 

meeting some of the applicable regional 

haze requirements as set forth in 

sections 169A and 169B of the CAA and 

in 40 CFR 51.300–308. 

V. Statutory and Executive Order 

Reviews 

A. Executive Order 12866, Regulatory 

Planning and Review 

The Office of Management and Budget 

(OMB) has exempted this regulatory 

action from Executive Order 12866, 

entitled ‘‘Regulatory Planning and 

Review.’’ 

B. Paperwork Reduction Act 

Under the Paperwork Reduction Act, 

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

approve all ‘‘collections of information’’ 

by EPA. The Act defines ‘‘collection of 

information’’ as a requirement for 

answers to * * * identical reporting or 

recordkeeping requirements imposed on 

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

3502(3)(A). The Paperwork Reduction 

Act does not apply to this action. 

C. Regulatory Flexibility Act (RFA) 

The RFA generally requires an agency 

to conduct a regulatory flexibility 

analysis of any rule subject to notice 

and comment rulemaking requirements 

unless the agency certifies that the rule 

will not have a significant economic 

impact on a substantial number of small 

entities. Small entities include small 

businesses, small not-for-profit 

enterprises, and small governmental 

jurisdictions. 

This rule will not have a significant 

impact on a substantial number of small 

entities because SIP approvals under 

section 110 and subchapter I, part D of 

the CAA do not create any new 

requirements but simply approve 

requirements that the Commonwealth is 

already imposing. Therefore, because 

the federal SIP approval does not create 

any new requirements, I certify that this 

action will not have a significant 

economic impact on a substantial 

number of small entities. 

Moreover, due to the nature of the 

federal-state relationship under the 

CAA, preparation of flexibility analysis 

would constitute federal inquiry into 

the economic reasonableness of state 

action. The CAA forbids EPA to base its 

actions concerning SIPs on such 

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

U.S. 246, 255–66 (1976); 42 U.S.C. 

7410(a)(2). 


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19108 Federal Register / Vol. 77, No. 62 / Friday, March 30, 2012 / Rules and Regulations 

D. Unfunded Mandates Reform Act 

(UMRA) 

Under sections 202 of the UMRA of 

1995 (‘‘Unfunded Mandates Act’’), 

signed into law on March 22, 1995, EPA 

must prepare a budgetary impact 

statement to accompany any proposed 

or final rule that includes a federal 

mandate that may result in estimated 

costs to state, local, or tribal 

governments in the aggregate; or to the 

private sector, of $100 million or more. 

Under section 205, EPA must select the 

most cost-effective and least 

burdensome alternative that achieves 

the objectives of the rule and is 

consistent with statutory requirements. 

Section 203 requires EPA to establish a 

plan for informing and advising any 

small governments that may be 

significantly or uniquely impacted by 

the rule. 

EPA has determined that today’s 

action does not include a federal 

mandate that may result in estimated 

costs of $100 million or more to either 

state, local, or tribal governments in the 

aggregate, or to the private sector. This 

federal action approves pre-existing 

requirements under state or local law, 

and imposes no new requirements. 

Accordingly, no additional costs to 

state, local, or tribal governments, or to 

the private sector, result from this 

action. 

E. Executive Order 13132, Federalism 

Federalism (64 FR 43255, August 10, 

1999) revokes and replaces Executive 

Orders 12612 (Federalism) and 12875 

(Enhancing the Intergovernmental 

Partnership). Executive Order 13132 

requires EPA to develop an accountable 

process to ensure ‘‘meaningful and 

timely input by State and local officials 

in the development of regulatory 

policies that have Federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the states, on the relationship 

between the national government and 

the states, or on the distribution of 

power and responsibilities among the 

various levels of government.’’ Under 

Executive Order 13132, EPA may not 

issue a regulation that has Federalism 

implications, that imposes substantial 

direct compliance costs, and that is not 

required by statute, unless the federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by state and local 

governments, or EPA consults with state 

and local officials early in the process 

of developing the proposed regulation. 

EPA also may not issue a regulation that 

has Federalism implications and that 

preempts state law unless the Agency 

consults with state and local officials 

early in the process of developing the 

proposed regulation. 

This rule will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132, because it 

merely approves a state rule 

implementing a federal standard, and 

does not alter the relationship or the 

distribution of power and 

responsibilities established in the CAA. 

Thus, the requirements of section 6 of 

the Executive Order do not apply to this 

rule. 

F. Executive Order 13175, Coordination 

With Indian Tribal Governments 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ This rule does not have 

tribal implications, as specified in 

Executive Order 13175. It will not have 

substantial direct effects on tribal 

governments. Thus, Executive Order 

13175 does not apply to this rule. 

G. Executive Order 13045, Protection of 

Children From Environmental Health 

Risks and Safety Risks 

Protection of Children from 

Environmental Health Risks and Safety 

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

applies to any rule that: (1) Is 

determined to be ‘‘economically 

significant’’ as defined under Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

the Agency must evaluate the 

environmental health or safety effects of 

the planned rule on children, and 

explain why the planned regulation is 

preferable to other potentially effective 

and reasonably feasible alternatives 

considered by the Agency. 

This rule is not subject to Executive 

Order 13045 because it does not involve 

decisions intended to mitigate 

environmental health or safety risks. 

H. Executive Order 13211, Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not subject to Executive 

Order 13211, ‘‘Actions Concerning 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use’’ (66 

FR 28355, May 22, 2001) because it is 

not a significant regulatory action under 

Executive Order 12866. 

I. National Technology Transfer and 

Advancement Act (NTTAA) 

Section 12 of the NTTAA of 1995 

requires federal agencies to evaluate 

existing technical standards when 

developing a new regulation. To comply 

with NTTAA, EPA must consider and 

use ‘‘voluntary consensus standards’’ 

(VCS) if available and applicable when 

developing programs and policies 

unless doing so would be inconsistent 

with applicable law or otherwise 

impractical. 

EPA believes that VCS are 

inapplicable to this action. Today’s 

action does not require the public to 

perform activities conducive to the use 

of VCS. 

J. Congressional Review Act 

The Congressional Review Act, 5 

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

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

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

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

K. Petitions for Judicial Review 

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

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by May 29, 2012. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this rule for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. See section 

307(b)(2). 


sroberts on DSK5SPTVN1PROD with RULES
Federal Register / Vol. 77, No. 62 / Friday, March 30, 2012 / Rules and Regulations 19109 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Particulate matter, 

Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

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

Dated: March 13, 2012. 

A. Stanley Meiburg, 

Acting Regional Administrator, Region 4. 

40 CFR part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart S—Kentucky 

■ 2. Section 52.936 is added to read as 

follows: 

§ 52.936 Visibility protection. 

(a) The requirements of section 169A 

of the Clean Air Act are not met because 

the plan does not include approvable 

measures for meeting the requirements 

of 40 CFR 51.308 for protection of 

visibility in mandatory Class I federal 

areas. 

(b) [Reserved] 

[FR Doc. 2012–7575 Filed 3–29–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 180 

[EPA–HQ–OPP–2010–0536; FRL–9343–1] 

Bacillus Pumilus Strain GHA 180; 

Exemption From the Requirement of a 

Tolerance 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: This regulation establishes an 

exemption from the requirement of a 

tolerance for residues of Bacillus 

pumilus strain GHA 180 in or on all 

food commodities when used in 

accordance with good agricultural 

practices. Premier Horticulture 

submitted a petition to EPA under the 

Federal Food, Drug, and Cosmetic Act 

(FFDCA), requesting an exemption from 

the requirement of a tolerance. This 

regulation eliminates the need to 

establish a maximum permissible level 

for residues of Bacillus pumilus strain 

GHA 180. 

DATES: This regulation is effective 

March 30, 2012. Objections and requests 

for hearings must be received on or 

before May 29, 2012, and must be filed 

in accordance with the instructions 

provided in 40 CFR part 178 (see also 

Unit I.C. of the SUPPLEMENTARY

INFORMATION). 

ADDRESSES: EPA has established a 

docket for this action under docket 

identification (ID) number EPA–HQ– 

OPP–2010–0536. All documents in the 

docket are listed in the docket index 

available at http://www.regulations.gov. 

Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available in the electronic docket at 

http://www.regulations.gov, or, if only 

available in hard copy, at the OPP 

Regulatory Public Docket in Rm. S– 

4400, One Potomac Yard (South Bldg.), 

2777 S. Crystal Dr., Arlington, VA. The 

Docket Facility is open from 8:30 a.m. 

to 4 p.m., Monday through Friday, 

excluding legal holidays. The Docket 

Facility telephone number is (703) 305– 

5805. 

FOR FURTHER INFORMATION CONTACT: 

Susanne Cerrelli, Biopesticides and 

Pollution Prevention Division (7511P), 

Office of Pesticide Programs, 

Environmental Protection Agency, 1200 

Pennsylvania Ave. NW., Washington, 

DC 20460–0001; telephone number: 

(703) 308–8077; email address: 

cerrelli.susanne@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this action apply to me? 

You may be potentially affected by 

this action if you are an agricultural 

producer, food manufacturer, or 

pesticide manufacturer. Potentially 

affected entities may include, but are 

not limited to: 

• Crop production (NAICS code 111). 

• Animal production (NAICS code 

112). 

• Food manufacturing (NAICS code 

311). 

• Pesticide manufacturing (NAICS 

code 32532). 

This listing is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

affected by this action. Other types of 

entities not listed in this unit could also 

be affected. The North American 

Industrial Classification System 

(NAICS) codes have been provided to 

assist you and others in determining 

whether this action might apply to 

certain entities. If you have any 

questions regarding the applicability of 

this action to a particular entity, consult 

the person listed under FOR FURTHER

INFORMATION CONTACT. 

B. How can I get electronic access to 

other related information? 

You may access a frequently updated 

electronic version of 40 CFR part 180 

through the Government Printing 

Office’s e-CFR site at http:// 

ecfr.gpoaccess.gov/cgi/t/text/textidx?&c=ecfr&tpl=/ecfrbrowse/Title40/ 

40tab_02.tpl. To access the OCSPP test 

guidelines referenced in this document 

electronically, go to: http:// 

www.epa.gov/ocspp and select ‘‘Test 

Methods and Guidelines.’’ 

C. How can I file an objection or hearing 

request? 

Under FFDCA section 408(g), 21 

U.S.C. 346a, any person may file an 

objection to any aspect of this regulation 

and may also request a hearing on those 

objections. You must file your objection 

or request a hearing on this regulation 

in accordance with the instructions 

provided in 40 CFR part 178. To ensure 

proper receipt by EPA, you must 

identify docket ID number EPA–HQ– 

OPP–2010–0536 in the subject line on 

the first page of your submission. All 

objections and requests for a hearing 

must be in writing, and must be 

received by the Hearing Clerk on or 

before May 29, 2012. Addresses for mail 

and hand delivery of objections and 

hearing requests are provided in 40 CFR 

178.25(b). 

In addition to filing an objection or 

hearing request with the Hearing Clerk 

as described in 40 CFR part 178, please 

submit a copy of the filing that does not 

contain any CBI for inclusion in the 

public docket. Information not marked 

confidential pursuant to 40 CFR part 2 

may be disclosed publicly by EPA 

without prior notice. Submit a copy of 

your non-CBI objection or hearing 

request, identified by docket ID number 

EPA–HQ–OPP–2010–0536, by one of 

the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the online 

instructions for submitting comments. 

• Mail: Office of Pesticide Programs 

(OPP) Regulatory Public Docket (7502P), 

Environmental Protection Agency, 1200 

Pennsylvania Ave. NW., Washington, 

DC 20460–0001. 

• Delivery: OPP Regulatory Public 

Docket (7502P), Environmental 

Protection Agency, Rm. S–4400, One 


sroberts on DSK5SPTVN1PROD with RULES