Vol. 77 Friday, 

No. 130 July 6, 2012 

Part II 

Environmental Protection Agency 

40 CFR Part 52 

Approval, Disapproval and Promulgation of Implementation Plans; State of 

Nebraska; Regional Haze State Implementation Plan; Federal 

Implementation Plan for Best Available Retrofit Technology Determination; 

Final Rule 


srobinson on DSK4SPTVN1PROD with RULES2
40150 Federal Register / Vol. 77, No. 130 / Friday, July 6, 2012 / Rules and Regulations 

1Federal Implementation Plans to Reduce 

Interstate Transport of Fine Particulate Matter and 

Ozone, 76 FR 48208 (August 8, 2011). 2 40 CFR 51.300–308. 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R07–OAR–2012–0158; FRL–9689–2] 

Approval, Disapproval and 

Promulgation of Implementation Plans; 

State of Nebraska; Regional Haze State 

Implementation Plan; Federal 

Implementation Plan for Best Available 

Retrofit Technology Determination 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is finalizing a partial 

approval and partial disapproval of a 

revision to the State Implementation 

Plan (SIP) for Nebraska, submitted by 

the State of Nebraska through the 

Nebraska Department of Environmental 

Quality (NDEQ) on July 13, 2011, that is 

intended to address regional haze for 

the first implementation period. This 

revision is intended to 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 

located over a wide geographic area 

(also known 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 also 

promulgating a Federal Implementation 

Plan (FIP) relying on the Transport Rule 

to satisfy BART for sulfur dioxide (SO2) 

at one source to address deficiencies in 

the State’s plan. 

DATES: Effective Date: This rule will 

become effective August 6, 2012. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R07–OAR– 

2012–0158. All documents in the docket 

are listed on the www.regulations.gov 

Web site. Although listed in the index, 

some information is not publicly 

available, i.e., Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

www.regulations.gov or in hard copy at 

the Air Planning and Development 

Branch, Air and Waste Management 

Division, U.S. Environmental Protection 

Agency, Region 7, 901 North 5th Street, 

Kansas City, Kansas 66101. 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: 

Mike Jay, Section Chief, Atmospheric 

Programs Section, Air Planning and 

Development Branch, U.S. 

Environmental Protection Agency, 

Region 7, 901 North 5th Street, Kansas 

City, Kansas 66101; by telephone at 

(913) 551–7460; or by email at 

jay.michael@epa.gov. 

SUPPLEMENTARY INFORMATION: For 

purposes of this document, we are 

giving meaning to certain words or 

initials as follows: 

a. The word Act or initials CAA mean or refer 

to the Clean Air Act. 

b. The initials BART mean or refer to Best 

Available Retrofit Technology. 

c. The initials CAIR mean or refer to the 

Clean Air Interstate Rule. 

d. The initials CENRAP mean or refer to the 

Central Regional Air Planning Association. 

e. The initials CSAPR mean or refer to CrossState Air Pollution Rule. The name ‘‘CrossState Air Pollution Rule’’ and the name 

‘‘Transport Rule’’ are used interchangeably 

and refer to the same program.1

f. The initials EGUs mean or refer to Electric 

Generating Units. 

g. The words we, us or our or the initials EPA 

mean or refer to the United States 

Environmental Protection Agency. 

h. The initials DSI mean or refer to Dry 

Sorbent Injection. 

i. The initials FGD mean or refer to Flue Gas 

Desulfurization. This technology may also 

be referred to as a ‘‘scrubber’’. 

j. The initials FIP mean or refer to Federal 

Implementation Plan. 

k. The initials FLMs mean or refer to Federal 

Land Managers. 

l. The initials GGS mean or refer to Gerald 

Gentleman Station, operated by Nebraska 

Public Power District. 

m. The initials IMPROVE mean or refer to 

Interagency Monitoring of Protected Visual 

Environments monitoring network. 

n. The initials LNB mean or refer to low NOX

burners. 

o. The initials LTS mean or refer to LongTerm Strategy. 

p. The initials NAAQS mean or refer to 

National Ambient Air Quality Standards. 

q. The initials NCS mean or refer to Nebraska 

City Station, operated by Omaha Public 

Power District. 

r. The words Nebraska and State mean the 

State of Nebraska unless the context 

indicates otherwise. 

s. The initials NDEQ mean or refer to the 

Nebraska Department of Environmental 

Quality. 

t. The initials NOX mean or refer to nitrogen 

oxides. 

u. The initials NPCA mean or refer to 

National Parks Conservation Association. 

v. The initials NPPD mean or refer to 

Nebraska Public Power District. 

w. The initials NPS mean or refer to National 

Park Service. 

x. The initials OFA mean or refer to overfire 

air. 

y. The initials OPPD mean or refer to Omaha 

Public Power District. 

z. The initials PM mean or refer to particulate 

matter. 

aa. The initials PSAT mean or refer to 

Particulate Source Apportionment 

Technology. 

bb. The initials RAVI mean or refer to 

Reasonably Attributable Visibility 

Impairment. 

cc. The initials RHR mean or refer to the 

Regional Haze Rule. 

dd. The initials RPG mean or refer to 

Reasonable Progress Goal. 

ee. The initials RPO mean or refer to Regional 

Planning Organizations, such as CENRAP 

or WRAP. 

ff. The initials SCR mean or refer to selective 

catalytic reduction. 

gg. The initials SIP mean or refer to State 

Implementation Plan. 

hh. The initials SNCR mean or refer to 

selective non-catalytic reduction. 

ii. The initials SO2 mean or refer to sulfur 

dioxide. 

jj. The initials TSD mean or refer to 

Technical Support Document. 

kk. The initials URP mean or refer to Uniform 

Rate of Progress. 

ll. The initials WRAP mean or refer to 

Western Regional Air Partnership. 

Table of Contents 

I. Background 

II. Final Action 

III. Public Comments and EPA Responses 

IV. Regulatory Text 

V. Statutory and Executive Order Reviews 

I. Background 

On March 2, 2012 (77 FR 12770), EPA 

published a notice of proposed 

rulemaking for the State of Nebraska, 

proposing to approve a portion of 

Nebraska’s regional haze plan for the 

first implementation period (through 

2018), and proposing to partially 

approve and partially disapprove those 

portions addressing the requirements for 

BART and the long-term strategy. EPA’s 

proposed rulemaking also proposed a 

FIP relying on the Transport Rule to 

satisfy BART for SO2 at Nebraska Public 

Power District, Gerald Gentleman 

Station, Units 1 and 2, to address the 

disapproval. A detailed explanation of 

the CAA’s visibility requirements and 

the Regional Haze Rule 2 as it applies to 

Nebraska was provided in the proposed 

rulemaking and will not be restated 

here. EPA’s rationale for proposing 


srobinson on DSK4SPTVN1PROD with RULES2
Federal Register / Vol. 77, No. 130 / Friday, July 6, 2012 / Rules and Regulations 40151 

3 77 FR 20333 (April 4, 2012). EPA also provided 

information about the public comment period 

extension and notice of public hearing on its Web 

site on March 30, 2012, in advance of the Federal 

Register publication. EPA previously noted in the 

docket that the Web site notice was posted on April 

6, 2012, which was incorrect. 

4EPA notes that Nebraska may, at any time: (1) 

Submit a revision to their regional haze SIP 

incorporating the requirements of the Transport 

Rule at which time EPA will propose to approve the 

SIP and withdraw the FIP we are finalizing in 

today’s action; (2) submit a complete SIP revision 

substantively identical to the provisions of the EPA 

trading program that is approved as meeting the 

requirements of 40 CFR 52.39, along with a revision 

to their regional haze SIP incorporating those 

requirements, at which time EPA will withdraw the 

FIP we are finalizing in today’s action; or (3) 

Nebraska may submit a new SIP revision addressing 

specific BART SO2 controls for GGS, in which case 

EPA will assess it against the CAA and regional 

haze rule requirements as a possible replacement 

for the FIP. 

5EPA Air Pollution Control Cost Manual, Sixth 

Edition, EPA/452/B–02–001, January 2002. 

6See Federal Implementation Plans to Reduce 

Interstate Transport of Fine Particulate Matter and 

Ozone, 76 FR 48208 (August 8, 2011). 

7See Regional Haze: Revisions to Provisions 

Governing Alternatives to Source-Specific BART 

Determinations, Limited SIP Disapprovals, and 

Federal Implementation Plans, 77 FR 33642 (June 

7, 2012). 

partial approval and partial disapproval 

of the Nebraska regional haze plan and 

for proposing the FIP was also described 

in detail in the proposal, and is further 

described in this final rulemaking. 

We requested comments on all 

aspects of our proposed action and 

initially provided a 30-day public 

comment period, with the public 

comment period closing on April 2, 

2012. On April 4, 2012, a notice was 

published extending the public 

comment period to May 2, 2012, and 

providing notice of a public hearing to 

be held on April 18, 2012, if requested 

by April 9, 2012.3 EPA received two 

requests for the public hearing, from 

NDEQ by letter dated March 16, 2012, 

and from NPCA by letter dated April 9, 

2012, however, both requests were later 

withdrawn by letters dated March 29, 

2012, and April 11, 2012, respectively. 

II. Final Action 

In today’s action, EPA is finalizing a 

partial approval and partial disapproval 

of Nebraska’s regional haze SIP, 

submitted on July 13, 2011. EPA is 

partially approving the majority of the 

provisions in the SIP revision as 

meeting some of the applicable regional 

haze requirements set forth in sections 

169A and 169B of the Act and in the 

Federal regulations codified at 40 CFR 

51.300–308, and the requirements of 40 

CFR Part 51, Subpart F and Appendix 

V. EPA is disapproving the SO2 BART 

determinations for Units 1 and 2 of GGS 

because they do not comply with EPA’s 

regulations. EPA is also disapproving 

Nebraska’s long-term strategy insofar as 

it relied on the deficient SO2 BART 

determination at GGS. EPA is finalizing 

a FIP relying on the Transport Rule as 

an alternative to BART for SO2

emissions from GGS to address these 

deficiencies.4 Today’s action finalizes 

our approval of the other portions of the 

SIP, as described in the proposal. 

However, because EPA’s basis for 

approval of Nebraska’s SIP as satisfying 

the requirements of the Regional Haze 

Rule with respect to BART for NOX for 

GGS Units 1 and 2 has been modified 

in light of comments received on the 

State’s determination, EPA provides 

additional explanation below and in the 

response to comments in section III of 

this notice. 

EPA received a number of comments 

on the proposed rulemaking regarding 

Nebraska’s NOX BART determination 

for GGS Units 1 and 2. In its SIP 

submission, Nebraska determined that 

NOX BART for GGS Units 1 and 2 was 

LNB and OFA at the presumptive BART 

NOX emission rate of 0.23 lbs/MMBtu. 

The commenters contended that the 

State’s estimated costs of SCR were 

inflated, resulting in artificially high 

cost effectiveness numbers, and that the 

deciview improvement from the use of 

SCR would be significant, particularly 

when a higher control efficiency (and 

lower emission limit) is considered. The 

commenters added that when the cost 

effectiveness and deciview numbers are 

adjusted, the resultant incremental cost 

effectiveness of SCR over LNB and OFA 

and the cost per deciview ($/dv) are 

below Nebraska’s own thresholds, and it 

is therefore reasonable to determine that 

SCR is BART for GGS Units 1 and 2. 

In response to these comments, EPA 

conducted further analysis of the costs 

of SCR at GGS. EPA found that Nebraska 

made some cost assumptions which 

were not in accordance with EPA’s Cost 

Control Manual 5 which resulted in 

inflated cost estimates. When EPA’s 

adjusted cost estimates based on the 

manual are used, the resultant 

incremental cost effectiveness and $/dv 

are indeed below Nebraska’s own 

thresholds for what it considered 

reasonable for BART controls. In 

addition, the cost effectiveness and 

deciview improvement are within a 

range that many states and EPA have 

found to be reasonable for NOX BART 

controls. Therefore, as a result of the 

comments received and additional 

analysis performed, it appears that 

Nebraska’s NOX BART determination of 

LNB and OFA at a rate of 0.23 lbs/ 

MMBtu for GGS Units 1 and 2, by itself, 

is not supported by the record. 

However, on August 8, 2011, EPA 

finalized the Transport Rule and FIP.6

The Transport Rule, as promulgated, 

requires 28 states in the eastern portion 

of the United States, including 

Nebraska, to significantly improve air 

quality by controlling EGU SO2 and 

NOX emissions that cross state lines and 

significantly contribute to ground-level 

ozone and/or fine particle pollution in 

other states. Nebraska is subject to the 

Transport Rule and FIP for NOX at 40 

CFR 52.1428. On June 7, 2012, EPA 

finalized its finding that the trading 

programs in the Transport Rule achieve 

greater reasonable progress towards the 

national goal of achieving natural 

visibility conditions in Class I areas 

than source-specific EGU BART in those 

states covered by the Transport Rule.7

Given the emission reductions provided 

by the NOX limits associated with 

Nebraska’s NOX BART determination of 

LNB and OFA for GGS Units 1 and 2, 

which strengthen the Nebraska SIP, in 

conjunction with the existing Transport 

Rule FIP which already applies to 

Nebraska and has been determined to 

provide greater reasonable progress than 

BART, in today’s action, EPA is 

finalizing its proposed approval of 

Nebraska’s SIP as satisfying the 

requirements of the Regional Haze Rule 

with respect to BART for NOX. 

III. Public Comments and EPA 

Responses 

During the public comment period we 

received written comments from the 

National Park Service; Omaha Public 

Power District; Nebraska Association of 

Resources Districts, on behalf of several 

Natural Resources Districts; Nebraska 

Department of Environmental Quality; 

the Nebraska Attorney General; 

Nebraska Public Power District; 

National Parks Conservation 

Association on behalf of themselves, 

Nebraska Environmental Action 

Coalition, Plains Justice, and Sierra 

Club; and 35 similar letters from 

individuals. We have summarized the 

comments and provided our responses 

below. Full copies of the comment 

letters are available in the docket for 

this rulemaking. Comments and 

responses below are grouped by subject 

rather than by commenter. 

A. Comments Regarding EPA’s Action 

Comment 1: We received identical 

comment letters from thirty-five 

individuals encouraging more emission 

controls on Nebraska sources in order to 

address haze in the South Dakota 

National Parks. The letters point out 

that at the current rate, the South Dakota 

Class I areas will not meet the goal of 


srobinson on DSK4SPTVN1PROD with RULES2
40152 Federal Register / Vol. 77, No. 130 / Friday, July 6, 2012 / Rules and Regulations 

natural visibility conditions for more 

than two hundred years. The 

commenters encourage EPA to require 

controls at Gerald Gentleman Station 

and Nebraska City Station specifically. 

Response 1: EPA appreciates the 

comments, but is partially approving 

Nebraska’s regional haze SIP and using 

the trading programs of the Transport 

Rule as a BART alternative for the 

reasons stated in the proposal and in 

other responses to comments in this 

action. 

Comment 2: One commenter 

referenced and incorporated its January 

21, 2011, comments to Nebraska on its 

draft regional haze plan. The commenter 

stated that it is incorporating these 

comments by reference because these 

comments are ‘‘inherently related’’ to 

this action. 

Response 2: In today’s rule, EPA is 

taking final action on the partial 

approval and partial disapproval of 

Nebraska’s regional haze SIP. EPA is 

also taking final action on a FIP relying 

on the Transport Rule to satisfy BART 

for SO2 at one source to address the 

disapproval. The comments referenced 

by the commenter were made to the 

State of Nebraska in a separate action. 

Nebraska timely responded to these 

comments. All of the comments that 

were incorporated by reference are 

addressed in today’s action in EPA’s 

response to comments. A copy of 

Nebraska’s response can be found in the 

docket to this action as Appendix 3.1 to 

Nebraska’s SIP submission. 

B. Comments Regarding EPA and State 

Roles 

Comment 3: We received several 

comments questioning whether we have 

CAA authority to disapprove Nebraska’s 

BART determinations and LTS and 

determine BART through a FIP. The 

commenters generally contended that 

Nebraska followed the CAA and EPA’s 

rules in making the BART and LTS 

determinations for the regional haze 

SIP. The commenters stated that 

Nebraska followed the statutory and 

regulatory process, and that EPA is 

exceeding its authority in substituting 

its judgment regarding appropriate 

BART for GGS. One commenter stated 

that EPA has no record upon which to 

support its proposed action to substitute 

its judgment for NDEQ. The commenters 

also stated that EPA cannot ‘‘arbitrarily 

and capriciously’’ substitute its own 

determination without a showing that 

Nebraska’s regional haze SIP failed to 

comply with the requirements of the 

CAA. 

Response 3: Congress directed in 

section 110 of the CAA that states 

would take the lead in developing 

implementation plans, but balanced that 

decision by requiring EPA to review the 

plans to determine whether a SIP meets 

the requirements of the CAA. EPA’s 

review of SIPs is not limited to a 

ministerial type of ‘‘rubber-stamping’’ of 

a state’s decisions. EPA must consider 

not only whether the state considered 

the appropriate factors, but also whether 

the state acted reasonably in doing so. 

EPA ensures that such authority is 

reasonably exercised. EPA has the 

authority to issue a FIP either when EPA 

has made a finding that the state has 

timely failed to submit a SIP or where 

EPA has found a SIP deficient. Here, 

EPA is approving as much of the 

Nebraska SIP as possible and adopting 

a FIP only to fill the remaining gap. Our 

action today is consistent with the 

statute. 

As explained in the proposal, the 

State’s SO2 BART determination for 

GGS is not approvable for a number of 

reasons, including errors in Nebraska’s 

cost analysis for FGD controls, the 

reasonableness of the costs of controls, 

the significant visibility improvement 

achieved as a result of installing FGD or 

DSI, and improper rejection of DSI. See 

77 FR 12770, 12780. We have 

determined that the faults in Nebraska’s 

analysis were significant enough that 

they resulted in BART determinations 

for SO2 that were both unreasoned and 

unjustified, and therefore are not 

approvable. 

In the absence of an approvable BART 

determination in the SIP for SO2 for 

GGS, we are obliged to promulgate a FIP 

to satisfy the CAA requirements. We are 

also required by the terms of a consent 

decree with NPCA, entered with the 

U.S. District Court for the District of 

Columbia to ensure that Nebraska’s 

CAA requirements for regional haze are 

finalized by June 15, 2012. Because we 

have found the State’s SIP submission 

does not adequately satisfy the BART 

requirements in full and because we 

have previously found that Nebraska 

failed to timely submit this SIP 

submission, we have not only the 

authority, but a duty to promulgate a 

FIP that meets these requirements. Our 

action in large part approves the 

regional haze SIP submitted by 

Nebraska; the disapproval of the SO2

BART determination for GGS and the 

imposition of a FIP does not encroach 

on State authority. This action only 

ensures that CAA requirements are 

satisfied using our authority under the 

CAA. We note that Nebraska may 

submit a new SIP revision addressing 

the issue of SO2 controls for GGS, in 

which case we will assess it against 

CAA and RHR requirements as a 

possible replacement for the FIP. See 

also EPA’s response to comments 32, 33, 

and 34, which are incorporated by 

reference. 

Comment 4: Two commenters argued 

that our proposal is inconsistent with 

the decision of the D.C. Circuit in Am. 

Corn Grower’s Ass’n v. EPA, 291 F.3d 1 

(D.C. Cir. 2002). The commenters 

contended that language in the decision 

affirms its views regarding state 

authority and EPA’s lack of authority in 

regulating the problem of regional haze. 

In particular, the American Corn 

Growers decision had described the 

CAA as ‘‘giving the states broad 

authority over BART determinations.’’ 

Id. at 8. 

Response 4: We disagree that our 

action is inconsistent with the American 

Corn Growers decision. The State’s 

analysis of BART for SO2 at GGS was 

flawed due to reasons discussed in the 

proposal and elsewhere in this notice. 

We have determined these issues 

resulted in non-approvable SO2 BART 

determinations for GGS Units 1 and 2. 

We recognize the State’s broad authority 

over BART determinations, and 

recognize the State’s authority to 

attribute weight and significance to the 

statutory factors in making BART 

determinations. As a separate matter, 

however, a state’s BART determination 

must be reasoned and based on an 

adequate record. Although we have 

largely approved the State’s regional 

haze SIP, we cannot agree that CAA 

requirements are satisfied with respect 

to the SO2 BART determination at GGS. 

Comment 5: One commenter generally 

asserted that we lack authority to 

disapprove Nebraska’s regional haze SIP 

because of past cases. The commenter 

cites Train v. NRDC, 421 U.S. 60, 79 

(1975), Commonwealth of Vir. v. EPA, 

108 F.3d 1397 (D.C. Cir. 1997), and 

Bethlehem Steel Corp. v. Gorusch, 742 

F.2d 1028 (7th Cir. 1984). Pursuant to 

these cases, the commenter argued that 

we cannot question the wisdom of a 

state’s choices or require particular 

control measures if plan provisions 

satisfy CAA standards. 

Response 5: States are required by the 

CAA to address the BART requirements 

in their SIP. Our disapproval of the SO2

BART determination in Nebraska’s RH 

SIP is authorized under the CAA 

because the State’s SO2 BART 

determination for GGS does not satisfy 

the statutory criteria. The State’s 

analysis of BART for SO2 at GGS was 

flawed due to reasons discussed in the 

proposal and elsewhere in this notice. 

While states have authority to exercise 

different choices in determining BART, 

the determinations must be reasonably 

supported. Nebraska’s errors were 

significant enough that we cannot 


srobinson on DSK4SPTVN1PROD with RULES2
Federal Register / Vol. 77, No. 130 / Friday, July 6, 2012 / Rules and Regulations 40153 

8The BART Guidelines: 40 CFR Part 51, 

Appendix Y. 

conclude the State determined BART for 

SO2 at GGS according to CAA standards. 

The cases cited by the commenter stress 

important limits on EPA authority in 

reviewing SIP submissions, but our 

disapproval of this SO2 BART 

determination for GGS has an 

appropriate basis in our CAA authority, 

and does not conflict with these 

limitations. 

Comment 6: One commenter cited to 

section 169A(g)(2) to support its 

contention that the State of Nebraska 

has ‘‘primary authority,’’ where EPA has 

no authority or lesser authority. Section 

169A(g)(2) begins, ‘‘in determining 

[BART] the State (or the Administrator 

in determining emissions limitations 

which reflect such technology) shall 

take into consideration’’ several 

requisite statutory factors. The 

commenter placed special emphasis on 

the references to the ‘‘state’’ in these 

provisions and contends that the plain 

language of the statute provides that 

states, and not EPA, have the authority 

to determine BART. 

Response 6: We agree that states have 

authority to determine BART, but we 

disagree with commenter’s assertions 

that EPA has no authority or lesser 

authority to determine BART when 

promulgating a FIP. As the parenthetical 

in section 169A(b)(2)(A) indicates, the 

Administrator has the authority to 

determine BART ‘‘in the case of a plan 

promulgated under section 7510(c).’’ In 

other words, the Administrator has 

explicit authority to determine BART 

when promulgating a FIP. Our BART 

determination utilizes our authority 

under 40 CFR 51.308(e)(3) to rely on an 

emissions trading program, here, the 

Transport Rule, which provides greater 

reasonable progress towards improving 

visibility than source-specific BART. 

We disagree that the language of the 

CAA limits our authority to determine 

BART in the case of a FIP. See also 

EPA’s responses to comments 3, 5, and 

7, which are incorporated by reference. 

Comment 7: One commenter 

expressed its view that its arguments 

were reinforced by legislative history of 

the 1977 CAA amendments. The 

commenter referred to statements of 

Senator Edmund Muskie regarding the 

conference agreement on the provisions 

for visibility protection in those 

amendments. Senator Muskie stated that 

under the conference agreement the 

state, ‘‘not the Administrator,’’ identifies 

BART-eligible sources and determines 

BART. 123 Cong. Rec. 26854 (August 4, 

1977). The commenter also noted that 

Am. Corn Growers Ass’n v. EPA 291 

F.3d 1 (D.C. Cir. 2002) used legislative 

history, including the Conference 

Report on the 1977 amendments, when 

the Court had invalidated past 

regulatory provisions regarding BART 

for constraining state authority. The 

Court stated that the Conference report 

confirmed that Congress ‘‘intended the 

states to decide which sources impair 

visibility and what BART controls must 

apply to those sources.’’ 

Response 7: We agree that the CAA 

places the requirements for determining 

BART for BART-eligible sources on 

states. As discussed previously, the 

CAA also requires the Administrator to 

determine BART in the absence of an 

approvable determination from the 

state. Because Nebraska’s BART 

determination for SO2 for GGS does not 

conform to the RHR and the BART 

Guidelines 8 and is not approvable, we 

are authorized and at this time required 

to promulgate a FIP. 

Comment 8: One commenter cited to 

169A(b) stating that this provision only 

allows for EPA to issue guidelines with 

technical and procedural guidance for 

determining BART but for the actual 

implementation plan to be developed by 

each state (except for fossil-fueled 

power plants with capacity that exceeds 

750 megawatts (MW)). The commenter 

stated that the CAA does not provide 

EPA the authority to disapprove a BART 

decision or require specific controls for 

BART. 

Response 8: States shoulder 

significant responsibilities in CAA 

implementation and effectuating the 

requirements of the RHR. EPA has the 

responsibility of ensuring that state 

plans, including regional haze SIPs, 

conform to CAA requirements. None of 

the CAA provisions cited by 

commenters change our conclusion that 

we have authority and duty to issue a 

FIP to satisfy BART requirements given 

that Nebraska’s regional haze SIP is not 

fully approvable. Our inability to 

approve the State’s BART determination 

for SO2 for GGS means we must follow 

through on our non-discretionary duty 

to promulgate a FIP. 

Comment 9: Several commenters who 

argued that the plain language of the 

CAA requires that states are the primary 

or only BART determining authorities 

have also cited our preamble language 

from past Federal Register publications 

that they believe reinforces their 

contention. For example, several 

commenters cited 70 FR 39104 at 39107, 

which reads in part, ‘‘the State must 

determine the appropriate level of 

BART control for each source of BART.’’ 

One commenter also cited 70 FR 39104 

at 31958 which provides that the ‘‘State 

will determine a ‘best system of 

continuous emission reduction’ based 

upon its evaluation of these factors.’’ 

One commenter cited to 70 FR 39104 at 

39170–39171 stating the State has 

discretion to determine the order in 

which it should evaluate control options 

for BART. One commenter also 

commented that the CAA provides 

Nebraska with great discretion to 

balance the five statutory factors and 

that states are free to determine the 

weight and significance assigned to each 

factor. 

Response 9: We agree that states are 

assigned statutory and regulatory 

authority to determine BART and that 

many past EPA statements have 

confirmed state authority in this regard. 

Although the states have the freedom to 

determine the weight and significance 

of the statutory factors, they have an 

overriding obligation to come to a 

reasoned determination. As detailed in 

our proposal and the supporting TSD, 

Nebraska’s SO2 BART determination for 

GGS was based on flawed analysis and 

an unreasonable conclusion. Because 

the State’s SO2 BART determination for 

GGS is not approvable, we are obligated 

to step into the shoes of the State and 

arrive at our own BART determinations. 

C. Comments Regarding Public Notice 

Comment 10: One commenter 

insinuated that EPA held a meeting with 

NDEQ and local stakeholders in North 

Platte, Nebraska on April 12, 2012, ‘‘in 

lieu’’ of a public hearing. 

Response 10: The April 12, 2012, 

meeting was not held ‘‘in lieu’’ of a 

public hearing. As the commenter notes, 

NDEQ requested a public hearing on 

March 16, 2012, and then on April 2, 

2012, withdrew the request for public 

hearing. As required by section 307(d) 

of the CAA, EPA provided the 

opportunity for public hearing on its 

proposed FIP; although two parties 

initially requested a public hearing, 

both requests were withdrawn. Because 

the requests were withdrawn and no 

other timely requests for public hearing 

were received, EPA canceled the public 

hearing that had been scheduled to take 

place. EPA’s notes from the April 12, 

2012, meeting are available in the 

docket for this action. 

Comment 11: NPPD submitted 

comments expressing concerns about 

EPA’s cancellation of the public hearing 

and decision to have a ‘‘private’’ 

meeting with NPCA as a substitute for 

the public hearing. NPPD requested to 

attend the meeting between EPA and 

NPCA, and stated that not allowing 

NPPD and other interested parties to 

attend the meeting deprived them of 

their due process rights in this matter. 


srobinson on DSK4SPTVN1PROD with RULES2
40154 Federal Register / Vol. 77, No. 130 / Friday, July 6, 2012 / Rules and Regulations 

9Copies of all letters requesting a public hearing, 

and later withdrawing those requests, as well as 

summaries of all meetings, are provided in the 

docket for EPA’s rulemaking, Docket No. EPA–R07– 

OAR–2012–0158. 

10A summary of the meeting with NPCA was 

provided for the docket prior to the time that NPPD 

submitted its comments on the proposed rule. 

11EPA has addressed employment impacts of the 

Transport Rule. 76 FR 28208, 48317–48319. 

Response 11: Due to the time sensitive 

nature of this comment and request, 

EPA responded to NPPD by letter on 

April 17, 2012. For completeness of our 

response to comments in today’s action, 

EPA summarizes its response here. 

Copies of NPPD’s April 13, 2012, letter 

and EPA’s April 17, 2012, letter are 

included in the docket for this 

rulemaking. EPA disagrees with the 

suggestion that all necessary public 

notice procedures were not followed by 

EPA, or that any parties were deprived 

of their due process rights. During the 

public comment period, EPA received 

two requests for a public hearing, one 

from NDEQ and one from NPCA, both 

of which were subsequently withdrawn 

by the requestors.9 No other requests for 

the public hearing were received during 

the prescribed time frame, including 

from NPPD, and therefore, EPA 

cancelled the public hearing. 

NDEQ and NPCA both requested to 

meet with EPA regarding our proposed 

rule. The meetings with NDEQ and 

NPCA were not ‘‘public meetings’’ and 

no public notice of these meetings was 

provided. EPA did, however, provide a 

summary of the meetings for the 

docket.10 EPA meets with various 

stakeholders regarding proposed actions 

on a routine basis. EPA met with NPCA 

representatives to listen to their 

interests just as EPA met with NPPD at 

the meeting hosted by NDEQ. NPPD 

provided no specific basis for its 

contention that it was denied ‘‘due 

process’’, and it submitted extensive 

comments (46 pages) on the proposed 

rule. 

D. Comments About the Benefits of 

Regional Haze Pollution Controls 

Comment 12: One commenter noted 

that pollutants that cause visibility 

impairment also harm public health. 

Specifically, the commenter asserted the 

following: ‘‘Regional haze pollutants 

include NOX, SO2, PM, ammonia, and 

sulfuric acid. NOX is a precursor to 

ground level ozone, which is associated 

with respiratory diseases, asthma 

attacks, and decreased lung function. In 

addition, NOX reacts with ammonia, 

moisture, and other compounds to form 

particulates that can cause and worsen 

respiratory diseases, aggravate heart 

disease, and lead to premature death. 

Similarly, SO2 increases asthma 

symptoms, leads to increased hospital 

visits, and can form particulates that 

aggravate respiratory and heart diseases 

that cause premature death. PM can 

penetrate deep into the lungs and cause 

a host of health problems, such as 

aggravated asthma, chronic bronchitis, 

and heart attacks.’’ 

The commenter cited to EPA’s 

estimates that in 2015, full 

implementation of the RHR nationally 

will prevent 1,600 premature deaths, 

2,200 non-fatal heart attacks, 960 

hospital emissions, and over one 

million lost school and work days. The 

RHR will result in health benefits 

valued at $8.4 to $9.8 billion annually. 

The commenter also stated that hazecausing emissions harm terrestrial and 

aquatic plants and animals, soil health 

and moving and stationary water bodies 

by contributing to acid rain, ozone 

formation, and nitrogen deposition. The 

commenter also stated that haze-causing 

pollutants are precursors to ozone. The 

commenter stated that ground-level 

ozone formation impacts plants and 

ecosystems in a variety of ways. 

Response 12: We appreciate the 

commenter’s concerns regarding the 

negative human health and ecosystem 

impacts of emissions from the units at 

issue. We agree that the same NOX

emissions that cause visibility 

impairment also contribute to the 

formation of ground-level ozone, which 

has been linked with respiratory 

problems, aggravated asthma, and even 

permanent lung damage. We also agree 

that SO2 emissions that cause visibility 

impairment also contribute to increased 

hospital visits and can form particulates 

that aggravate respiratory and heart 

diseases, and that both NOX and SO2

cause acid rain. We agree that the same 

emissions that cause visibility 

impairment can form fine PM and be 

inhaled deep into lungs, which can 

cause respiratory problems, decreased 

lung function, aggravated asthma, 

bronchitis, and premature death. We 

agree that these pollutants can have 

negative impacts on ecosystems, 

damaging plants, trees, and other 

vegetation (including crop yields), 

which could have a negative effect on 

species diversity in our ecosystems. 

Therefore, although our action concerns 

visibility impairment, we note the 

potential for significant improvements 

in human and ecosystem health. 

Comment 13: We received one 

comment that the proposed action 

would help the economy in a variety of 

ways. The commenter stated that 

tourism in national parks provides 

Federal and local private sector revenue 

and provides hundreds of thousands of 

jobs. The commenter stated that 

national park tourism is a critical 

component to the economy of the 

Midwest and deterioration in 

improvement to visibility at a national 

park can reduce tourism to those parks. 

The commenter also stated that 

requiring facilities to install controls 

also creates jobs. 

Response 13: Although we did not 

consider the potential positive benefits 

to local economics in making our 

decision today, we do acknowledge that 

improved visibility may have a positive 

effect on tourism and local jobs.11 This 

action may also result in significant 

improvements in human health. 

Improved human health can reduce 

healthcare costs and reduce the number 

of missed school and work days in the 

community. 

E. Comments Regarding Reasonable 

Progress Goals and Long-Term Strategy 

Comment 14: One commenter states 

that the development of the LTS is the 

responsibility of each affected state, not 

the EPA, and the state is only required 

to ensure that the RPG of the state 

containing the Class I area is met. EPA 

proposed disapproval of Nebraska’s LTS 

on the basis that it relied on the 

deficient BART determination for SO2 at 

GGS. The commenter contends that this 

rationale is not consistent with the 

Federal requirements, and that Nebraska 

adequately addressed all requirements 

for the LTS set forth at 40 CFR 

51.308(d)(3) in its regional haze SIP 

submission, including consultation with 

South Dakota and other affected states, 

tribes, and FLMs on coordinated 

emission management strategies; 

provision of all applicable technical 

information pertaining to the 

apportionment of emission reduction 

obligations, including the baseline 

emissions inventory; identification of all 

anthropogenic sources of visibility 

impairment considered by the State; and 

consideration of the factors at 40 CFR 

part 51.308(d)(3)(v). Another commenter 

maintains that because Nebraska’s SO2

BART determination was not defective, 

Nebraska’s LTS should be approved. 

Response 14: As further explained 

elsewhere in today’s action, Congress 

directed in section 110 of the CAA that 

states would take the lead in developing 

implementation plans, but balanced that 

decision by requiring EPA to review the 

plans to determine whether a SIP meets 

the requirements of the CAA. EPA must 

consider not only whether the State 

considered the appropriate factors in 

development of its LTS, but also 

whether the State acted reasonably in 

doing so. The commenter correctly cites 


srobinson on DSK4SPTVN1PROD with RULES2
Federal Register / Vol. 77, No. 130 / Friday, July 6, 2012 / Rules and Regulations 40155 

12 77 FR 24845 (April 26, 2012). 

13EPA’s proposed approval of South Dakota’s 

regional haze SIP is found at 76 FR 76646 (Dec. 8, 

2011) and EPA’s final approval is found at 77 FR 

24845 (April 26, 2012). 

the factors that must be considered in 

development of the LTS, and notes that 

EPA largely approved the LTS, except 

for that portion that relies on what the 

EPA proposed was the State’s flawed 

SO2 BART determination for GGS. EPA 

disagrees with the commenter’s 

statements that this does not provide a 

basis for disapproval of a portion of the 

Nebraska’s LTS. Section 169A of the 

CAA and the EPA’s implementing 

regulations require states to establish 

LTS for making reasonable progress 

towards the national goal of achieving 

natural visibility conditions in Class I 

areas. Implementation plans must also 

give specific attention to certain 

stationary sources. Specifically, section 

169A(b)(2)(A) of the CAA requires states 

to revise their SIPs to contain such 

measures as may be necessary to make 

reasonable progress towards the natural 

visibility goal, including a requirement 

that certain categories of existing major 

stationary sources built between 1962 

and 1977 procure, install, and operate 

BART. Because EPA cannot fully 

approve SO2 BART for GGS, we cannot 

fully approve a LTS that relies on it. 

For the reasons cited elsewhere in 

today’s action, EPA disagrees that 

Nebraska’s SO2 BART determination for 

GGS was reasonable and in accordance 

with 40 CFR 51.308(e) and the BART 

Guidelines. Therefore, in this action, 

EPA appropriately disapproves 

Nebraska’s LTS only insofar as it relied 

upon the improper SO2 BART 

determination for GGS. See also EPA’s 

response to comment 3, which is 

incorporated by reference. 

Comment 15: Several commenters 

point out what they contend are 

inconsistencies between EPA’s approval 

of the South Dakota RPGs for Badlands 

and Wind Cave Class I areas,12 and 

today’s action. The commenters state 

that Nebraska’s work through CENRAP 

and direct consultation with South 

Dakota as well as other states, tribes and 

FLMs ensured that all entities were fully 

informed of the proposed decisions in 

the Nebraska regional haze SIP. If 

additional measures were necessary to 

ensure that South Dakota met their 

RPGs, it would have been appropriate 

for either (1) South Dakota to request the 

additional measures from Nebraska, or 

(2) EPA to disapprove the LTS of South 

Dakota and for South Dakota to notify 

Nebraska that additional measures were 

needed. However, EPA approved the 

South Dakota regional haze SIP in its 

entirety. The commenter asserts that the 

EPA region with oversight over a Class 

I area is tasked with ensuring that the 

applicable state’s RPGs are sufficient 

and practical. If that state’s RPGs are not 

sufficient or practical, each state 

participating in the regional planning 

process for the applicable Class I area 

would be required to re-evaluate their 

LTS and make appropriate revisions to 

ensure they met their apportionment of 

emission reduction obligations 

necessary for achieving reasonable 

progress. The commenters contend that 

through its approval of the South Dakota 

regional haze plan, EPA verified that 

each state involved in the regional 

planning process, including Nebraska, 

met their apportionment of emission 

reductions, without requiring any 

implementation of FGD at GGS. Another 

commenter asserts that the emission 

projections used in the WRAP regional 

modeling clearly assumed scrubbers 

operated at 0.15 lbs/MMBtu would be 

installed to meet SO2 BART at GGS, and 

because our proposal relied on the 

Transport Rule in lieu of source-specific 

BART for SO2 at GGS, South Dakota will 

not likely meet its reasonable progress 

goals at Badlands and Wind Cave 

National Parks, which already fall short 

of the uniform rate of progress towards 

natural background visibility 

conditions. Commenters also contend 

that these same issues apply to 

Colorado, Oklahoma, Missouri, and 

Arkansas, which also relied on RPO 

modeling and assumed presumptive 

SO2 BART emission reductions at GGS, 

and at a minimum, GGS should meet 

presumptive BART emission levels. 

Response 15: EPA disagrees that 

inconsistencies exist between today’s 

action and EPA’s approval of South 

Dakota’s RPGs, and disagrees that 

inclusion of presumptive BART for 

purposes of air quality modeling 

necessitates a source-specific SO2 BART 

FIP for GGS. 

South Dakota, as a state hosting Class 

I areas, established goals for Badlands 

and Wind Cave National Parks that 

provide for reasonable progress towards 

achieving natural visibility conditions, 

in accordance with 40 CFR 51.308(d)(1). 

As set forth in EPA’s proposed and final 

approval of South Dakota’s regional 

haze SIP,13 South Dakota constructed its 

uniform rate of progress and set the 

RPGs consistent with the requirements 

of the RHR. 

To set RPGs, states looked to the air 

quality modeling performed by the 

RPOs. The modeling assumed emission 

reductions from each state based on 

extensive consultation among the states 

as to appropriate strategies for 

addressing haze. The air quality models 

used to support the regional haze SIPs 

are extremely complex, and due to the 

time consuming nature of performing 

the modeling, this work was performed 

early in the process. The emissions 

projections by the RPOs, relied upon in 

the air quality modeling, incorporated 

the best available information at the 

time from the states, and utilized the 

appropriate methods and models to 

provide a prediction of emissions from 

all source categories into the future. 

There was an inherent amount of 

uncertainty in the assumed emissions 

from all sources, including emissions 

from BART-eligible sources, as the final 

control decisions by all of the states 

were not yet complete. Nebraska 

provided the RPOs with their best 

estimates of what their regional haze SIP 

would achieve as inputs for the 

modeling, before they had made final 

BART determinations. The regional 

modeling incorporated BART 

presumptive emission reductions, and 

other states relied on these reductions in 

setting their RPGs. 

Nebraska’s BART determination 

ultimately did not require presumptive 

SO2 BART for GGS, and Nebraska did 

not provide any information 

demonstrating those emission 

reductions would be otherwise 

achieved. The relevant requirement at 

40 CFR 51.308(d)(3)(ii) is that Nebraska 

must demonstrate that it has included 

all measures necessary to obtain its 

share of the emission reductions needed 

to meet the RPGs for Class I areas where 

it causes or contributes to impairment. 

Class I states like South Dakota 

originally set the reasonable progress 

goals in their SIP based on emission 

reductions expected to be achieved 

through application of presumptive 

BART, CAIR, and other emission 

reductions qualified for that purpose. 

South Dakota had the opportunity to 

comment on Nebraska’s draft BART 

permits as well as the overall regional 

haze SIP, and did not ask for additional 

emission reductions from Nebraska. As 

Nebraska did establish a BART limit for 

GGS and informed South Dakota that its 

BART determination deviated from 

what was included in the modeling, the 

fact that the final BART determination 

varied from the predictions is not 

grounds for disapproving either SIP. 

The RPGs are not enforceable goals. 

South Dakota will have the 

responsibility to consider whether other 

reasonable control measures are 

appropriate to ensure reasonable 

progress during subsequent periodic 

progress reports and regional haze SIP 

revisions as required by 40 CFR 


srobinson on DSK4SPTVN1PROD with RULES2
40156 Federal Register / Vol. 77, No. 130 / Friday, July 6, 2012 / Rules and Regulations 

14BART guidelines at 70 FR 39170: However, we 

believe the States have flexibility in setting absolute 

thresholds, target levels of improvement, or de 

minimis levels since the deciview improvement 

must be weighed among the five factors, and States 

are free to determine the weight and significance to 

be assigned to each factor. For example, a 0.3, 0.5, 

or even 1.0 deciview improvement may merit 

stronger weighting in one case versus another, so 

one ‘‘bright line’’ may not be appropriate. 

15CALPUFF modeling shows that GGS impacts 

Badlands an average of 2.93 dv in the baseline years 

of 2001–2003. 

51.308(f)–(h), and may at that time 

consider asking Nebraska for additional 

emission reductions. 

Comment 16: One commenter stated 

that the source retirement discussion in 

the Nebraska SIP submission was 

inadequate, as it did not contain a 

discussion of changes in energy and 

other markets and their likely effect on 

future emissions. 

Response 16: The requirement in 40 

CFR 51.308(d)(3)(v) is for a state to 

consider source retirement and 

replacement schedules as a factor in 

developing its long-term strategy. 

Nebraska considered source retirements 

and replacements as a part of estimating 

the change in emissions from the 

baseline year of 2002 through the first 

implementation period for regional haze 

SIPs (2018). As stated in the SIP, 2002 

emissions were grown to year 2018 

utilizing EPA approved methods 

including the use of MOBILE 6.2 vehicle 

emission modeling software, and the 

Integrated Planning Model (IPM) 

version 2.93 for EGUs. These tools 

include estimations of source retirement 

and replacements when accounting for 

the effects of Federal and state rules. 

Thus, we believe that Nebraska 

adequately considered source 

retirements and replacements when 

developing its long-term strategy. 

Comment 17: One commenter 

criticized Nebraska’s lack of analysis of 

potential emission reductions from 

stationary sources that are not BARTeligible or that are BART-eligible but not 

subject-to-BART. 

Response 17: The long-term strategy 

requirements of the rule do not 

specifically require an analysis of the 

potential emission reductions from 

stationary sources that are not BARTeligible or that are BART-eligible but not 

subject-to-BART. The requirement is for 

the State to identify all anthropogenic 

sources of visibility impairment 

considered by the State in developing 

its long-term strategy. The CENRAP 

modeling demonstration provided by 

the State considered emissions of all 

anthropogenic source categories 

including major and minor stationary 

sources, mobile sources, and area 

sources in developing its strategy. With 

the exception of the SO2 component of 

the BART requirements as described 

elsewhere in our proposal and in this 

notice, the State has successfully 

demonstrated compliance with all other 

remaining elements of the long-term 

strategy requirements. 

Comment 18: One commenter 

questioned why EPA would point out in 

its proposed action that, ‘‘* * * although 

Nebraska participated as a member state 

in CENRAP, the greatest impacts from 

Nebraska sources occur in a WRAP 

state—South Dakota.’’ 

Response 18: This statement is merely 

reiterating the fact that the Class I areas 

most impacted by emissions from 

Nebraska are in South Dakota which is 

a participant in a different RPO, as 

noted elsewhere in the proposal. 

F. Comments Regarding Visibility 

Improvement Metrics 

Comment 19: One commenter stated 

that if EPA is relying on a particular 

threshold for determining the 

significance of a visibility benefit, this 

threshold should be explained and 

identified. 

Response 19: There is no particular 

threshold for determining significance 

of visibility benefit in the regional haze 

rule. Significance is a source- and Class 

I-specific evaluation, meaning that it 

depends on how much visibility 

improvement is needed at the Class I 

area(s), how much a specific source 

impacts the Class I area(s), and the cost 

effectiveness and potential visibility 

improvement of available control 

options. States have latitude to 

determine these thresholds,14 providing 

support and a reasonable and adequate 

basis for why they selected the 

thresholds, and to determine BART and 

reasonable progress controls, in 

consultation with other impacted states. 

As long as this evaluation is done 

adequately and the states provide a 

reasoned basis for their decisions, EPA 

will defer to the state. 

Comment 20: One commenter 

remarked that they agree with use of the 

dollars per deciview metric to select 

BART controls, but encourage 

cumulative visibility benefits to be 

included, rather than just results at the 

nearest Class I area. They reiterate EPA’s 

comments in the January 21, 2011, letter 

to NDEQ on the draft SIP, stating that ‘‘a 

$/dv analysis is likely to be less 

meaningful if the analysis does not take 

into account the visibility impacts at 

multiple Class I areas or ignores the 

total improvement (i.e., the frequency, 

magnitude, and duration of the modeled 

changes in visibility).’’ 

Another commenter discussed the 

importance of considering cumulative 

visibility benefits, both as the sum of 

smaller improvements at one Class I 

area and as the benefit of an action to 

all impacted Class I areas, as EPA has 

done previously in other actions, such 

as Oklahoma and New York. 

Response 20: The BART Guidelines 

list the dollars per deciview ratio as an 

additional cost effectiveness metric that 

can be employed along with dollars per 

ton in a BART evaluation. However, 

EPA does not have guidelines on how 

the dollars per deciview metric is to be 

used, and there is inconsistency in how 

states have calculated it. We believe that 

dollars per deciview is one of several 

metrics that can be used to analyze cost 

of visibility improvement, and reaffirm 

our position that the calculation is more 

meaningful if cumulative visibility 

benefits are accounted for. 

Comment 21: One commenter called 

the use of a cumulative impacts analysis 

for GGS ‘‘unauthorized’’. The 

commenter pointed out that a BARTeligible source is ‘‘subject to BART’’ 

only if it ‘‘may reasonably be 

anticipated to cause or contribute to any 

impairment of visibility in any 

mandatory Class I Federal area,’’ adding 

emphasis to area. 

Response 21: We consider this to be 

somewhat of a moot point, as the source 

in question, GGS, clearly causes 

visibility impairment at the closest Class 

I area, Badlands, even without 

consideration of cumulative impacts.15

However, as stated previously and 

consistent with other EPA actions on 

regional haze, we also believe that a 

cumulative impacts analysis is a useful 

tool for examining the impact of a 

BART-subject source and the visibility 

improvement to be gained by the 

addition of emission controls, and do 

not agree that use of this tool is 

unauthorized or unreasonable. 

Comment 22: One commenter 

criticizes the lack of attention EPA gives 

in its proposed action to Nebraska’s 

dollar per deciview analysis presented 

in its SIP. The commenter reiterates 

Nebraska’s conclusions on cost per 

deciview of improvement, saying that 

the dollars per deciview of visibility 

improvement for FGD at GGS far 

exceeded that of any other utility 

Nebraska compared it to. The 

commenter states that EPA ‘‘does not 

and cannot disturb Nebraska’s threshold 

of $40 million per deciview per year.’’ 

Response 22: EPA reviewed all of 

Nebraska’s analysis presented in the 

SIP, including total annualized costs, 

dollars per ton, dollars per deciview, 

incremental dollars per ton, incremental 

dollars per deciview, and frequency 

(number of days) impacted. The State is 


srobinson on DSK4SPTVN1PROD with RULES2
Federal Register / Vol. 77, No. 130 / Friday, July 6, 2012 / Rules and Regulations 40157 

16 70 FR 39167. 

17Nebraska Regional Haze SIP, submitted July 13, 

2011, at pages 45 and 48. 

18The Regional Haze Rule at 40 CFR 

51.308(e)(1)(ii)(B) states that the ‘‘determination of 

BART for fossil-fuel fired power plants having a 

total generating capacity greater than 750 megawatts 

must be made pursuant to the guidelines in 

Appendix Y of this part (Guidelines for BART 

Determinations Under the Regional Haze Rule).’’ 

free to set the thresholds it chooses, as 

long as it provides support and a 

reasonable and adequate basis for the 

threshold. Nebraska set a cost threshold 

at $40 million/dv/year as reasonable for 

BART controls, however, the State did 

not provide justification or basis for 

why it chose that threshold. 

For BART, the BART Guidelines 

require that cost effectiveness be 

calculated in terms of annualized 

dollars per ton of pollutant removed, or 

$/ton,16 so the language in our proposal 

focuses on $/ton. 

In addition, if the cost of controls are 

overestimated, and the true efficiency of 

the control technology is not modeled, 

as is the case with the BART analysis at 

GGS, the result is a metric that 

overestimates cost and underestimates 

visibility improvement. 

As seen in Table 1, even with 

overestimated costs, if visibility 

improvement is considered on a 

cumulative basis, the cost per deciview 

for SO2 control is under Nebraska’s 

threshold—$34,238,388. Without 

overestimated costs, even at the 

presumptive level of control, dollars per 

deciview are half of Nebraska’s 

threshold—$20,987,655. The 

cumulative visibility benefits of more 

stringent levels of control, such as 0.06 

lbs/MMBtu, is unknown, but would 

clearly be well under half of the 

threshold Nebraska set as being cost 

effective for BART controls on a dollars 

per deciview basis. 

TABLE 1—RANGE OF GGS DRY SCRUBBER COST EFFECTIVENESS

Dry FGD 

(Nebraska’s 

original BART 

analysis) 

Dry FGD EPA’s estimate revised from comments 

SO2 Baseline ...................................................................................... 49,785 49,785 

Uncontrolled Emission Level (lbs/MMBtu) ......................................... 0.749 0.749 

Controlled Emission Rate (lbs/MMBtu) .............................................. 0.15 0.15 0.11 .................. 0.06. 

Percent Reduction ............................................................................. 80% 80% 85.3% ............... 92%. 

SO2 Emission Reduction (tons) ......................................................... 39,815 39,815 42,473 .............. 45,797. 

Total Annualized Cost ........................................................................ $108,535,690 $66,530,865 $67,871,854 ..... $69,519,846. 

Total Cost Effectiveness ($/ton) ........................................................ $2,726 $1,671 $1,598 .............. $1,518. 

$/dv (Badlands) .................................................................................. $139,148,321 $85,295,981 unknown a ......... unknown. 

$/dv (Cumulative) b ............................................................................. $34,238,388 $20,987,655 

a Nebraska did not conduct visibility modeling for FGD at a rate of 0.11 or 0.06 lbs/MMBtu SO2. b In calculating cumulative visibility improvement, NDEQ only considered the two closest Class I areas, Badlands and Wind Cave in South Dakota. As described in our TSD, we believe that it is more appropriate to calculate cumulative improvement from all six Class I areas which are 

impacted greater than 0.5 dv from GGS Units 1 and 2. 

G. Comments Regarding BART for 

Particulate Matter 

Comment 23: One commenter stated 

that EPA failed to propose approval or 

disapproval of Nebraska’s PM BART 

determination for NCS and GGS. The 

commenter provides that EPA 

characterized Nebraska’s PM BART 

analyses for NCS and GGS as ‘‘* * * 

direct PM emissions from [the facility] 

do not significantly contribute to 

visibility impairment, and therefore, a 

full five factor BART analysis for PM 

was not needed.’’ 77 FR 12778. The 

commenter contends that although EPA 

proposed to agree with these 

conclusions, it did not approve or 

disapprove Nebraska’s further 

conclusion that BART for PM is existing 

controls and requirements, which it is 

required to do.17

Response 23: We disagree with the 

commenter’s assertion that EPA is 

required to approve or disapprove 

Nebraska’s conclusion that BART for 

PM is existing controls and 

requirements. The RHR and the BART 

Guidelines 18 require a determination as 

to whether a source is subject to BART, 

that is, whether the BART-eligible 

source emits any pollutant which may 

reasonably be anticipated to cause or 

contribute to any impairment of 

visibility in any Class I area. In 

performing this analysis, Nebraska 

appropriately utilized source-specific 

CALPUFF modeling to analyze whether 

SO2, NOX, and direct PM emissions 

contributed to visibility impairment at 

Class I areas. As a result of the modeled 

demonstration that impairment due to 

direct PM emissions is minimal, 

Nebraska appropriately concluded that 

direct PM emissions from GGS and NCS 

do not significantly contribute to 

visibility impairment. Under the RHR 

and BART Guidelines, the State is not 

required to go further in performing a 

full-five factor analysis for PM to 

determine BART. While the State is free 

to make additional findings related to 

existing controls at GGS and NCS, EPA 

is not required to act upon them as 

those findings go beyond what is 

required by the rule and EPA has 

determined the State met the minimum 

requirements for BART analysis for 

direct PM. 

H. Comments Regarding BART for NOX

at Gerald Gentleman Station 

Comment 24: Many comments were 

received regarding the cost estimations 

for SCR at GGS. The commenters 

asserted the cost estimations provided 


srobinson on DSK4SPTVN1PROD with RULES2
40158 Federal Register / Vol. 77, No. 130 / Friday, July 6, 2012 / Rules and Regulations 

19The commenters refer to these cost estimations 

as NPPD’s. NDEQ accepted NPPD’s estimations and 

submitted them to EPA, so for consistency, we are 

referring to these estimations as ‘‘Nebraska’s.’’ 

by Nebraska 19 were not supported by 

adequate information, such as specific 

vendor quotes. The commenters argued 

that Nebraska inappropriately included 

several costs such as escalation, 

inflation, allowance for funds used 

during construction (AFUDC), and an 

unjustified expense for taking a unit 

offline to install an SCR (rather than 

installing it during a routine outage). 

They also contended that site-specific 

factors such as real interest rates (5.25 

percent rather than 7 percent) and a 30- 

year expected lifetime (rather than 20 

years) should be used. The commenters 

asserted that these overestimations 

significantly inflate the cost of controls, 

totaling $377/kW, higher than known 

costs associated with any SCR 

installation. The commenters contend 

that no information was presented in 

the Nebraska BART analysis showing 

space constraints or particular 

complexity of retrofit which would 

justify such high cost estimations. 

Several commenters stated their belief 

that at Nebraska’s calculated cost of 

$2,297/ton, LNB/OFA plus SCR is cost 

effective for NOX control at GGS. The 

commenters assert that this cost is well 

within the range of cost effectiveness 

values required by EPA and other states, 

and in fact, below the values Nebraska 

found cost effective for SO2 controls at 

GGS. The commenters assert that if the 

costs of controls were adjusted to 

correct for inconsistencies with the Cost 

Control Manual methodology, the 

controls would be even more cost 

effective. 

One commenter presented a NOX

BART cost estimation for SCR at GGS 

using EPA’s Cost Control Manual and 

Integrated Planning Model (IPM) for 

each of the two Units individually. The 

commenter concluded that LNB/OFA 

plus SCR for Units 1 and 2 at a limit of 

0.05 lbs/MMBtu would remove almost 

20,000 tons of NOX per year and cost 

approximately $1,900 per ton. They 

argue that with this more reasonable 

cost estimate, the costs of control are 

below Nebraska’s stated threshold of 

$40 million/dv, at $12–19 million/ 

cumulative dv. 

Response 24: As described below and 

in Appendix D, E, and F, we agree with 

the commenters that Nebraska’s SCR 

costs were overestimated by including 

expenses inconsistent with EPA’s Cost 

Control Manual. In response to these 

comments, we conducted an evaluation 

of the cost of SCR, using the information 

provided by Nebraska and adjusting it 

in accordance with the Cost Control 

Manual. We made a number of 

adjustments to Nebraska’s SCR cost 

estimation, including: 

• Adjustments to the engineering, 

planning, and construction (EPC) cost 

• Adjustments to the contingencies 

• Deletion of escalation and allowance 

for funds used during construction 

(AFUDC) 

• Inclusion of a NOX control rate cost 

scenario of 0.05 lbs/MMBtu 

• Increasing the SCR operational life 

from 20 to 30 years 

• Adjusting the capital recovery factor 

(CRF) 

We did not exclude the cost of taking 

a unit offline to install an SCR (rather 

than installing it during a routine 

outage), as we do not have any 

information to show that this is an 

unreasonable assumption. However, we 

did reduce this annualized charge from 

$1,021,000 to $833,683, by recalculating 

it based on our CRF. If the cost was 

eliminated entirely, it would only 

change the cost effectiveness $/ton 

figures by approximately 2 percent. 

Therefore, even if the commenter is 

correct that this charge is unwarranted, 

it would not have likely impacted 

Nebraska’s decision to eliminate SCR as 

BART. 

Table 2 summarizes EPA’s 

adjustments to Nebraska’s cost estimates 

for SCR control. Nebraska conducted the 

BART evaluation for the two units at 

GGS together, so the results presented in 

Table 2 are combined for the two units. 

TABLE 2—REVISED NOX COST CALCULATIONS (SCR), GERALD GENTLEMAN STATION, UNITS 1 & 2 

Original analysis (NDEQ) Revised analysis (EPA) 

LNB/OFA LNB/OFA + SCR LNB/OFA + SCR 

Baseline (before control) .................................................................. 30,243 30,243 30,243 30,243. 

Emission rate (lbs/MMBtu) ................................................................ 0.23 0.08 0.08 0.05. 

Control efficiency .............................................................................. 49% 82% 82% 89%. 

Controlled emissions (tpy) ................................................................ 15,287 5,317 5,317 3,323. 

Tons NOx removed (total) ................................................................. 14,956 24,926 24,926 26,920. 

Total Annualized Cost ....................................................................... $2,960,000 $57,251,000 $39,467,000 $41,760,000. 

Total cost per ton .............................................................................. $198 $2,297 $1,583 $1,551. 

Tons NOx removed (incremental over LNB/OFA) ............................ N/A 9,970 9,970 11,964. 

Incremental cost per ton ................................................................... N/A $5,445 $3,662 $3,243. 

Incremental visibility improvement (delta dv) ................................... N/A 0.49 a 0.49 unknownb. 

Total visibility improvement, Badlands ............................................. 0.66 1.15 c 1.15 unknown. 

Total visibility improvement, Cumulative d ........................................ 1.94 3.21 3.21 unknown. 

Total $/dv, Badlands ......................................................................... $4,484,848 $49,783,478 $34,319,130 unknown. 

Total $/dv, Cumulative ...................................................................... $1,525,773 $17,835,202 $12,295,016 unknown. 

a Note that Nebraska modeled the two units at GGS together. The incremental improvement of 0.49 dv is the average improvement over the

three baseline years. If this analysis was separated by unit, the per-unit incremental improvement would be approximately 0.24 dv on average. If 

the maximum incremental improvement were considered, it would be 0.54 dv for the two units combined, or approximately 0.27 dv for each unit. b Nebraska only conducted CALPUFF modeling at the control rate of 0.08 lbs/MMBtu. We have not determined the predicted visibility improvement resulting from consideration of a lower rate, such as 0.05 lbs/MMBtu. cTotal average improvement for the baseline period for the two units combined is 1.15 dv. Average improvement for each unit would be approximately 0.575 dv. Total maximum improvement for the two units would be 1.24 dv, or approximately 0.62 dv each. dGGS impacts 6 Class I areas more than 0.5 dv. Improvements from these 6 areas are included in this calculation. 

EPA’s reevaluation of Nebraska’s SCR 

cost estimate resulted in lowering the 

total capital cost from $478,151,000 to 

$320,209,000 for the 0.08 lbs/MMBtu 

emission rate, a reduction of 

approximately 33 percent. This results 

in an incremental cost effectiveness 

change from Nebraska’s estimate of 

$5,445/ton to $3,662/ton, or $3,243 per 


srobinson on DSK4SPTVN1PROD with RULES2
Federal Register / Vol. 77, No. 130 / Friday, July 6, 2012 / Rules and Regulations 40159 

20See Regional Haze: Revisions to Provisions 

Governing Alternatives to Source-Specific BART 

Determinations, Limited SIP Disapprovals, and 

Federal Implementation Plans, 77 FR 33642 (June 

7, 2012). 

21 77 FR 20894 (April 6, 2012); proposed at 76 FR 

58570 (Sept. 21, 2011). 

22The state estimated costs for SNCR at $8,551, 

and EPA’s revised cost estimate was $2,500, a 

reduction in costs of 71 percent. 

23CCS Units 1 and 2 impact the nearest class I 

area 4.04–4.48 dv, as opposed to the 2.828–3.121 dv 

impact due to GGS Units 1 and 2 on the nearest 

Class I area. 

ton if the 0.05 lbs/MMBtu rate is 

considered. 

When the costs are recalculated, it 

appears that the costs are within a range 

that many states and EPA have found to 

be reasonable for NOX BART controls. 

EPA also acknowledges that the 

recalculated costs are below Nebraska’s 

own thresholds for incremental cost 

effectiveness ($5,000 per ton) and cost 

effectiveness per deciview ($40 million 

per deciview), although EPA notes that 

Nebraska did not provide justification or 

support in the record for their selected 

cost effectiveness thresholds. 

Therefore, as described here and in 

section II of this notice, it appears that 

Nebraska’s NOX BART determination of 

LNB and OFA at a rate of 0.23 lbs/ 

MMBtu for GGS Units 1 and 2, by itself, 

is not supported by the record. 

However, as described in section II of 

this notice, Nebraska is subject to the 

Transport Rule and FIP for NOX at 40 

CFR 52.1428. EPA has found that the 

trading programs in the Transport Rule 

achieve greater reasonable progress 

towards the national goal of achieving 

natural visibility conditions in Class I 

areas than source-specific BART in 

those states covered by the Transport 

Rule.20

Given the emission reductions 

provided by the NOX emission limits 

associated with Nebraska’s NOX BART 

determination of LNB and OFA for GGS 

Units 1 and 2, which strengthen the 

Nebraska SIP, in conjunction with the 

existing Transport Rule FIP which 

already applies to Nebraska and has 

been determined to provide greater 

reasonable progress than BART, in 

today’s action, EPA is finalizing its 

proposed approval of Nebraska’s SIP as 

satisfying the requirements of the 

Regional Haze Rule with respect to 

BART for NOX, and therefore do not 

inquire further here as to whether the 

cost effectiveness of SCR is low enough 

and the associated deciview 

improvement significant enough to 

reasonably determine that SCR is BART 

for GGS Units 1 and 2. 

Comment 25: One commenter notes 

that Nebraska rejected SCR on the basis 

that it was not cost effective on an 

incremental basis, a metric which the 

commenter believes was given undue 

weight. The commenter contends that if 

the overestimated costs were corrected 

even slightly, the incremental cost per 

ton would be under Nebraska’s 

‘‘arbitrary’’ threshold for incremental 

cost effectiveness of $5,000 per ton. 

The commenter asserts that the 

incremental visibility benefits of SCR at 

GGS are significant. The commenter 

notes that the control efficiency of SCR 

used in the State’s analysis is less than 

what the technology is capable of 

achieving, and if modeling was 

conducted at a more stringent rate, 

visibility benefits would be even greater. 

The commenter highlights an EPA 

Region 8 BART decision for North 

Dakota, requiring SNCR and LNB/ 

separated OFA at an incremental cost of 

$5,441 per ton at a facility where the 

incremental visibility benefit was only 

0.105 dv.21

Response 25: As stated in response 

24, we did adjust Nebraska’s cost 

estimations, and found that the 

incremental cost for SCR at GGS was 

likely closer to $3,662 per ton, rather 

that the State’s estimate of $5,445 per 

ton. The commenter correctly suggests 

that this adjusted cost is less than 

Nebraska’s stated cost effectiveness 

threshold of $5,000 incremental cost per 

ton. We agree with the commenter that 

the State did not support its chosen 

thresholds in the record. 

We agree with the commenter’s 

suggestion that if the visibility modeling 

had been conducted at a more stringent 

control rate of 0.05 lbs/MMBtu, which 

an SCR is capable of achieving, the 

visibility improvements would likely be 

greater than what is stated in Nebraska’s 

SIP submission, and within a range 

many states and EPA have found to be 

significant for control. 

Because of some of the deficiencies 

highlighted by the commenters, we are 

not able to conclude that the State’s 

NOX BART determination was 

supported by the record. 

We respond to comments about the 

control efficiency of SCR in response 27. 

In today’s action, EPA determined 

that Nebraska’s NOX BART 

determination for GGS is not supported 

by the record, therefore, the 

commenter’s suggestion that EPA’s 

approval of Nebraska’s NOX BART 

determination for GGS is inconsistent 

with EPA’s action on North Dakota’s 

regional haze SIP is no longer 

applicable. In today’s action, given the 

emission reductions provided by the 

NOX limits associated with Nebraska’s 

NOX BART determination of LNB and 

OFA for GGS Units 1 and 2, which 

strengthen the Nebraska SIP, in 

conjunction with the existing Transport 

Rule FIP which already applies to 

Nebraska and has been determined to 

provide greater reasonable progress than 

BART, EPA is finalizing its proposed 

approval of Nebraska’s SIP as satisfying 

the requirements of the Regional Haze 

Rule with respect to BART for NOX. 

This action is not inconsistent with 

EPA’s action on North Dakota’s regional 

haze SIP. In that action, EPA 

disapproved North Dakota’s NOX BART 

determination for these Units because 

the State ‘‘relied on cost estimates that 

greatly overestimated the costs of 

controls’’ 22 and ‘‘the faults in the cost 

estimates were significant enough that 

they resulted in BART determinations 

for NOX for CCS 1 and 2 that were both 

unreasoned and unjustified.’’ 77 FR 

20900. We note that in the North Dakota 

case, the State estimated the costs for 

SNCR at $8,551, and EPA’s revised cost 

estimate was $2,500, a reduction in 

costs of 71 percent. This overestimation 

is much greater than the GGS case, 

when our analysis only reduced the cost 

33 percent. Furthermore, we note that 

the visibility impacts of these two 

sources are different, making different 

conclusions about BART plausible.23

Once EPA Region 8 disapproved the 

Great River Energy Coal Creek Station 

Units 1 and 2 NOX BART 

determinations in North Dakota’s SIP, a 

FIP was required, and EPA conducted 

its own source-specific consideration of 

cost, visibility improvement, and the 

other regulatory factors to determine 

what was appropriate as BART. 

Comment 26: We received comments 

noting that the two Units at GGS were 

evaluated in combination. The 

commenters believe that because the 

Units are different sizes and have 

different existing controls installed, a 

separate analysis for the two Units 

would be more appropriate. Also, the 

proposed BART limit was combined 

across the two Units, and the 

commenter asserts that Unit-specific 

limits are required. 

Response 26: We acknowledge that 

the pre-control NOX emissions profiles 

for Units 1 and 2 at GGS are different. 

However, when the commenter 

conducted a cost analysis for adding 

SCR for each Unit individually and 

adjusting the baseline and control 

efficiency as they saw appropriate, their 

cost conclusions were similar to EPA’s. 

The commenters calculated the 

incremental cost to add SCR at a limit 

of 0.05 lbs/MMBtu to be $3,481 per ton 


srobinson on DSK4SPTVN1PROD with RULES2
40160 Federal Register / Vol. 77, No. 130 / Friday, July 6, 2012 / Rules and Regulations 

24As calculated by the commenters, GGS Unit 1’s 

incremental cost for SCR was $3,399 and Unit 2’s 

incremental was $3,567, for a two-unit average of 

$3,481. 

25These figures are rounded to two decimal 

places. Unit 1’s improvement is estimated at 0.238 

dv, Unit 2 is 0.225 dv, for a two-unit total of 0.463 

dv. 

for the two Units,24 while EPA’s 

calculations showed an incremental cost 

of $3,243 at this limit. 

In terms of visibility analysis, we 

believe it was reasonable for the State to 

combine the two co-located units for 

purposes of modeling. Again, we note 

that when the commenter adjusted the 

baseline individually for the two units 

as they saw fit, the result was nearly 

identical to the State’s visibility 

conclusions. The commenters 

calculated a visibility improvement of 

0.24 dv at Unit 1 and 0.23 dv at Unit 

2, for a two-unit total of 0.46 dv 25

incremental improvement from SCR at 

Badlands and 1.29 dv cumulatively. The 

State’s two-unit incremental 

improvement was 0.49 dv at Badlands 

and 1.27 dv cumulatively. Therefore, we 

disagree that an analysis for each unit 

was necessary, as it does not appear that 

it would have yielded a different BART 

determination result. 

We disagree with the commenter that 

unit-specific limits are required. The 

BART Guidelines, section V state: ‘‘You 

should consider allowing sources to 

‘average’ emissions across any set of 

BART-eligible emission units within a 

fence line, so long as the emission 

reductions from each pollutant being 

controlled for BART would be equal to 

those reductions that would be obtained 

by simply controlling each of the BARTeligible units that constitute BARTeligible source.’’ 

Therefore, it was acceptable for the 

State to average the BART limits over 

the two units. 

Comment 27: Several commenters 

stated that Nebraska underestimated the 

ability of modern SCR systems to 

control NOX. Nebraska’s SCR evaluation 

was conducted at a limit of 0.08 lbs/ 

MMBtu, which amounts to 

approximately an 82 percent control 

efficiency. However, the commenters 

present information showing that SCR is 

capable of achieving at least a 90 

percent control efficiency, and note that 

the BART Guidelines require that the 

most stringent level of control be 

evaluated as one of the BART options. 

The commenters pointed out several 

recent Best Available Control 

Technology (BACT) determinations and 

regional haze FIPs which required limits 

of 0.05 lbs/MMBtu or lower on a thirtyday rolling average. They state that no 

information was presented in the State’s 

NOX BART evaluation indicating that 

special circumstances existed which 

would make the most stringent level of 

control unachievable. 

Response 27: The commenter 

presented evidence that a limit of 0.05 

lbs/MMBtu for SCR likely should have 

been analyzed in the State’s BART 

determination. We acknowledge that 

other SCR retrofits have resulted in NOX

emission levels lower than 0.08 lbs/ 

MMBtu, and at a control efficiency 

greater than 82 percent, the deciview 

improvement will likely increase and be 

in a range that many states and EPA 

have found to be reasonable for NOX

BART controls. 

As discussed previously, we have 

determined that the State’s NOX BART 

determination was not supported by the 

record. However, in today’s action, we 

are concluding that the combination of 

the LNB/OFA controls proposed by the 

State in combination with the existing 

Transport Rule FIP, which already 

applies to Nebraska, satisfies the 

requirements for NOX BART at GGS. 

Comment 28: Several commenters 

also stated that the most stringent level 

of control achievable from the use of 

combustion controls on GGS Unit 2 

needs to be evaluated. They state that 

Unit 2’s existing NOX emissions 

(typically between 0.30–0.35 lbs/ 

MMBtu) could likely be controlled well 

below the proposed joint limit of 0.23 

lbs/MMBtu with combustion controls. 

Response 28: The current annual rate 

at GGS Unit 2 has varied between 0.305 

and 0.348 from the period 2000–2011. 

The current rate at Unit 2 already 

reflects an older vintage of LNB control. 

Although it is possible that a lower rate 

could be achieved with new combustion 

controls, it is unclear what this rate 

might be and the commenter has not 

offered documentation as to why a 

lower rate could be achieved by LNB/ 

OFA on this unit. BART analyses by 

states and EPA have typically assumed 

combustion controls to meet a rate of 

0.23 lbs/MMBtu for purposes of 

evaluation of cost and visibility benefit, 

therefore, EPA sees no reason to 

conclude that the State’s analysis of 

combustion controls at 0.23 lbs/MMBtu 

was not reasonable. 

Comment 29: We received several 

comments indicating that SNCR was 

prematurely eliminated as an option for 

NOX BART at GGS. Nebraska eliminated 

SNCR from consideration as BART on 

the basis that it is not technically 

feasible because of high exit 

temperatures. The commenter cited a 

similar unit (Boardman power plant 

operated by Portland General Electric), 

in which a contractor found an 

appropriate injection location which 

would make a 25 percent NOX reduction 

feasible, at an approximate cost of $14/ 

kW. The commenter also believes that 

the two units at GGS are different 

enough that SNCR should be evaluated 

for each unit individually, rather than in 

combination. 

Response 29: The BART Guidelines 

state, ‘‘You should document a 

demonstration of technical infeasibility 

and should explain, based on physical, 

chemical, or engineering principles, 

why technical difficulties would 

preclude the successful use of the 

control option on the emissions unit 

under review.’’ Nebraska’s BART 

analysis presented a demonstration of 

why SNCR is technically infeasible for 

control at GGS Units 1 and 2. However, 

as described previously, we are not able 

to determine that the State’s NOX BART 

determination was supported by the 

record, and thus, EPA is not making a 

determination on the feasibility of SNCR 

as BART at GGS. EPA notes that 

evaluation of SNCR cost and control 

efficiency is unit-specific, so comments 

indicating that SNCR was feasible and 

cost effective at another facility do not 

necessarily support a determination that 

SNCR is feasible at GGS. 

Comment 30: One commenter stated 

that the costs for SCR installation were 

‘‘under documented’’. The commenter 

suggested that the cost estimates were 

missing significant information, such as 

vendor quotes, and contended that 

EPA’s proposed approval without this 

information was ‘‘arbitrary’’. The 

commenter states that if EPA relied on 

this information in decision making, but 

failed to include it in the docket, the 

public’s notice and comment rights 

were violated. 

Response 30: EPA did not rely on 

information that was not in the docket 

for this rule. We acknowledge that the 

vendor quotes provided in the docket 

(appendix 10.6 of the SIP) are redacted 

copies, omitting the name of the vendor 

and certain design parameters. 

However, we believe that adequate 

information was presented in order for 

EPA and the public to review the BART 

cost estimations. 

I. Comments Regarding SO2 BART at 

Gerald Gentleman Station 

Comment 31: One commenter stated 

that it agreed with EPA’s proposed 

disapproval of the BART determination 

for SO2 controls for GGS. The 

commenter stated that EPA 

appropriately determined that dry FGD 

would result in significant visibility 

improvement at Badlands. The 

commenter also stated that it agrees 

with EPA’s proposed disapproval of 

Nebraska’s long-term strategy. The 


srobinson on DSK4SPTVN1PROD with RULES2
Federal Register / Vol. 77, No. 130 / Friday, July 6, 2012 / Rules and Regulations 40161 

26 $81,958,000 / (0.86 × 2) = $47,650,000. 27Although EPA notes that Nebraska did not 

provide justification or basis for its thresholds in 

the record. 

commenter noted that presumptive 

BART SO2 controls at GGS were 

included in the regional modeling that 

supports the reasonable progress goals 

for Class I areas in South Dakota, 

Colorado, Oklahoma, and Missouri that 

are impacted by GGS. The commenter 

stated that without SO2 controls at GGS, 

these Class I areas are likely not to meet 

EPA and the States’ reasonable progress 

goals. 

Response 31: EPA appreciates the 

comments in support of today’s action. 

Comments regarding impact on other 

states RPGs are addressed in section III 

E of this notice. 

Comment 32: Several commenters 

stated that it is within Nebraska’s 

purview to assign the weight and 

significance for, and to balance each of 

the BART statutory factors. One 

commenter states that the plain 

language of the CAA provides Nebraska 

with great discretion to balance the five 

statutory factors. See 42 USC 7491(g)(2) 

and 77 FR 12770–12774 (citing 40 CFR 

51.308(e)(1)(ii)). The commenter states 

that in making its BART determination 

for GGS, Nebraska followed the BART 

Guidelines in evaluating the costs of 

compliance and non-air quality 

environmental impacts, including 

consideration of the extent to which 

short-term environmental gains were 

being achieved at the expense of longterm environmental losses and the 

extent to which there may be an 

irreversible or irretrievable commitment 

of resources. Another commenter states 

that through the BART five-factor 

analysis, Nebraska eliminated wet and 

dry FGD as control options for GGS 

using step 4 (costs of compliance) and, 

more importantly, the significant nonair quality environmental impacts, 

including the unique water resource 

restrictions that exist in Nebraska, the 

costs of obtaining the water, and the 

resultant strain on Nebraska’s 

agricultural sector should water 

reallocations be required. The 

commenter asserts that EPA bases its 

proposed disapproval on disagreement 

over the cost of water without 

referencing the State’s non-air quality 

determination, the RHR delegates the 

determination of the non-air quality 

environmental impacts factor to the 

State, and the commenter referred EPA 

to its statements regarding whether the 

State reasonably considered the relevant 

factors in its final rule for South Dakota 

(77 FR 24845, 24853 (April 26, 2012)). 

Response 32: EPA incorporates by 

reference its response to comments 6 

and 9. EPA agrees that states are 

assigned statutory and regulatory 

authority to determine BART and that 

many past EPA statements, including 

those the commenter cited in EPA’s 

approval of South Dakota’s regional 

haze SIP, have confirmed state authority 

in this regard. However, although the 

states have the freedom to determine the 

weight and significance of the statutory 

factors, they have an overriding 

obligation to come to a reasoned 

determination. While states have 

authority to exercise different choices in 

determining BART, the determinations 

must be reasonably supported. 

EPA based its decision to disapprove 

Nebraska’s SO2 BART determination for 

GGS on a number of issues, including 

errors in Nebraska’s cost analysis for 

FGD controls, the reasonableness of the 

costs of controls, the potential for 

significant visibility improvement as a 

result of installing FGD or DSI, and 

improper rejection of DSI. The 

availability and cost of obtaining water 

was factored into the cost of controls 

and the costs were still found to be 

reasonable, particularly given the 

significant visibility benefits as a result 

of controls. Furthermore, as EPA stated 

in its proposal, DSI does not consume 

as much water as FGD, and is a viable 

option for control of SO2. For those 

reasons, we found that Nebraska’s 

blanket dismissal of any SO2 control 

under the ‘‘non-air quality 

environmental impact’’ factor was 

unreasoned. 

Comment 33: One commenter 

questioned EPA’s justification for 

disagreeing with Nebraska’s 

determination that DSI was not 

reasonable for BART control. The 

commenter said that Nebraska’s reasons 

for eliminating DSI as BART control 

were that the technology was relatively 

new for units the size of GGS Units 1 

and 2, and the cost would exceed 

Nebraska’s dollars per deciview 

threshold (Nebraska estimated 

$95,189,314/dv/year for DSI, exceeding 

its threshold of $40 million per 

deciview per year). 

Response 33: At $2,058 per ton, and 

a visibility improvement of 0.86 dv at 

the closest Class I area, EPA considers 

DSI to be cost effective, and the 

visibility improvements to be significant 

at the closest Class I area. 

Visibility improvement for DSI was 

only evaluated at Badlands, so we are 

unable to fully analyze Nebraska’s use 

of the dollars per deciview threshold in 

this case, as cumulative benefits were 

not modeled. However, because of the 

proximity and similarity of impacts 

between Badlands and Wind Cave, we 

believe it is reasonable to assume 

similar visibility improvement would be 

seen at Wind Cave from the installation 

of DSI. The annualized cost of DSI at the 

two units is $81,958,000, and if similar 

visibility improvements were seen at 

Wind Cave (0.86), the cost per deciview 

would be $47,650,000.26 This 

approaches Nebraska’s threshold for 

reasonableness on a dollars per 

deciview basis.27 If the benefit on the 

other Class I areas GGS impairs was 

added in to this calculation, the cost per 

deciview would likely be at or under 

Nebraska’s threshold. 

Nebraska did not present information 

in its SIP submission showing that DSI 

is technically infeasible at units the size 

of GGS as a basis to eliminate it from the 

consideration for BART, and in fact 

evaluated DSI as a feasible control. 

Comment 34: One commenter stated 

that our proposed revisions to FGD cost 

estimates are not correct. In the TSD for 

our proposed action, we did a detailed 

evaluation of the cost estimates 

provided by Nebraska, and noted where 

we believed costs to be overestimated or 

inappropriately included. The 

commenter incorporated by reference 

two contractors’ assessments of our 

evaluation. 

Response 34: The contractors’ 

comments and our responses are 

described in detail in Appendix G, 

‘‘Responses to Comments and Revisions 

to EPA’s Evaluation of Cost of FGD 

Controls at NPPD GGS Units 1 and 2.’’ 

Overall, after making adjustments to our 

cost estimates based on these comments, 

the cost of controls emerge as even more 

cost effective than our original estimate, 

as previously shown in Table 1. These 

revisions do not change our conclusions 

that Nebraska overestimated the costs of 

FGD controls. Our revised analysis 

reduces the estimated cost of controls 

from $108,535,690 (annualized) to 

between $66,530,865 and $69,519,846— 

a 36 to 39 percent reduction in cost. 

J. Comments Regarding Water 

Availability To Operate FGD 

Comment 35: Many commenters 

reiterated statements in the SIP 

regarding water availability and 

concerns about the use of water 

resources to operate air pollution 

controls. In order to obtain the water 

necessary to operate FGD, NPPD would 

need to obtain the rights to groundwater 

resources in the over-appropriated Twin 

Platte Basin. In its SIP, under the ‘‘nonair environmental impact’’ factor of the 

BART analysis for SO2 control at GGS, 

Nebraska determined that this 

consumptive water use rendered the 

control unreasonable. 

Response 35: First, we note that 

today’s action does not require 


srobinson on DSK4SPTVN1PROD with RULES2
40162 Federal Register / Vol. 77, No. 130 / Friday, July 6, 2012 / Rules and Regulations 

installation of FGD; instead, it relies on 

the trading program of the Transport 

Rule, which does not dictate specific 

controls for specific units, to achieve 

visibility protection. 

EPA acknowledges the concerns about 

water availability, and recognizes the 

great care that the State takes to manage 

limited water resources. We also 

acknowledge the goals of the Integrated 

Management Plans (IMP) and 

obligations of the Platte River Recovery 

Plan. 

However, as we said in our proposal, 

we do not believe that the water is 

unattainable, but that it can be obtained 

at a cost. See response to comment 36 

about how these costs were taken into 

account in estimating the overall cost of 

controls. 

We also note that there are BART 

control options which do not require 

nearly the amount of consumptive use 

of water, such as DSI, which is cost 

effective and achieves significant 

visibility improvement. FGD was not 

the only control option for SO2 at GGS, 

so it is not acceptable to use concerns 

about water availability to rule out all 

SO2 controls for BART. 

Comment 36: Two commenters state 

that the cost of acquiring water and land 

has increased since the time the SIP was 

submitted. The Nebraska Association of 

Resources Districts states that land costs 

in the basin have exceeded $10,000/acre 

and water rights have been valued up to 

$5,000 per acre-foot. NDEQ states that 

since the SIP was submitted in July 

2011, land values have increased in the 

area, such that in March 2012, a farm 

with 330 acres of irrigated land sold for 

$4,303 per acre. They estimate that this 

is a 7.5 percent increase in land value 

from the cost estimates utilized in the 

SIP. 

Response 36: We recalculated the 

costs of obtaining water to operate wet 

and dry FGD based on these comments. 

As seen in Table 3, when these higher 

land costs are considered, it raises the 

cost effectiveness of wet FGD from 

$2,932 per ton to $3,245 per ton, an 

increase of $313 per ton. These figures 

should be considered to be conservative 

for several reasons. First, NPPD’s 

estimates of water use to operate wet 

FGD were 31 percent higher than the 

average of other facilities that NDEQ 

provided in its SIP. Second, we did not 

include any rental income from the 

property, value due to production of dry 

land crops, or the future value of the 

land in 20 years in calculating these 

costs. Third, as noted in the proposal, 

although we did not review the BART 

cost analysis for wet FGD, many of the 

same cost overestimations are likely 

present. 

For dry FGD, using our adjusted costs 

and adding in the higher costs of land 

and water, the costs are still reasonable, 

ranging from $1,897–$2,107 per ton. 

TABLE 3—COST OF OBTAINING WATER RIGHTS TO OPERATE FGD AT GGS 

Wet FGD Dry FGD 

Estimation in SIP Estimation 

revised from 

comments 

EPA’s estimates, plus water 

Acre-feet per year required ................................ 3,877 3,877 3,238 3,238 3,238. 

Acres of land required ....................................... 22,000 22,000 a 18,374 18,374 18,374. 

Cost of land per acre ......................................... $4,000 $10,000 $10,000 $10,000 $10,000. 

Total cost to obtain water offsets ...................... $88,000,000 $220,000,000 $183,740,005 $183,740,005 $183,740,005. 

Annualized costs of obtaining water offsets (7% 

over 20 years).

$8,306,590 $20,766,444 $17,343,757 $17,343,757 $17,343,757. 

Annualized cost of FGD ..................................... $108,450,000 $108,450,000 $66,530,865 $67,871,854 $69,519,846. 

Total annualized cost, FGD + water offsets ...... $116,756,590 $129,216,444 $83,874,622 $85,215,611 $86,863,603. 

Emission Rate (lbs/MMBtu) ............................... 0.15 0.15 0.15 0.11 0.06. 

Tons SO2 reduced ............................................. 39,815 39,815 39,815 42,473 45,797. 

Cost effectiveness ($/ton) .................................. $2,932 $3,245 $2,107 $2,006 $1,897. 

Average visibility improvement (Badlands) ........ 0.78 0.78 0.78 unknown unknown. 

Average visibility improvement (Cumulative) ..... 3.17 3.17 3.17 

$/dv (Badlands) .................................................. $149,687,936 $165,662,108 $107,531,566 

$/dv (Cumulative) ............................................... $36,831,732 $40,762,285 $26,458,871 

aAssumes 0.176227 acre feet of water available per acre of land. 

Comment 37: One commenter pointed 

out that our analysis of costs to operate 

FGD did not include loss of agricultural 

revenue. The State raised concerns in its 

SIP about the impact to the Nebraska 

economy if irrigated cropland were to be 

changed to less-valuable dry land 

farming. 

Response 37: While we acknowledge 

that there may be impacts to the 

economy that go beyond what was 

included in the BART analysis, we 

believe that it would be inconsistent to 

include the regional loss of agricultural 

revenue in a BART analysis. BART 

analyses should be done using EPA’s 

Cost Control Manual, or a similar 

method for standardizing how costs are 

taken into account. These types of 

regional economic influences, both 

positive and negative, are not included 

in BART analyses as direct costs of 

installing and operating emission 

controls. If such impacts were to be 


srobinson on DSK4SPTVN1PROD with RULES2
Federal Register / Vol. 77, No. 130 / Friday, July 6, 2012 / Rules and Regulations 40163 

28 77 FR 33642 (June 7, 2012). 

considered, different methodologies and 

different notions of cost effectiveness 

would have to be developed. While we 

are sensitive to broader economic 

impacts, they are not part of our focused 

analysis of the BART factors in making 

a BART determination. 

Comment 38: We received comments 

noting that the water requirements of 

FGD are typically a very small 

percentage of the water use 

requirements for a plant overall, which 

are largely for cooling, and it is not 

reasonable to contend that this de 

minimis increase in water use is 

prohibitive. The commenter also 

pointed out that GGS uses a ‘‘oncethrough’’ system, which wastes 

significant amounts of water. The 

commenter notes that water saving 

options that have been employed in 

other water restricted locations could be 

employed at GGS to lessen the strain on 

water resources. 

Response 38: In general, we agree 

with the commenter that there are likely 

efficiency measures which could be 

undertaken to reduce water use if FGD 

were installed. 

Comment 39: One commenter states 

that any EPA-imposed regulation at GGS 

that would cause a new consumptive 

use of water in the over-appropriated 

Platte River Basin would also increase 

the competition for water to meet the 

needs of federally listed threatened and 

endangered species. To that end, the 

commenter encouraged EPA to reinitiate consultation with the U.S. Fish 

and Wildlife Service on the water 

impacts to the listed species as well as 

the air impacts. 

Response 39: The FIP imposed by 

EPA as a result of today’s action does 

not, in and of itself, cause a new 

consumptive use of water in the Platte 

River Basin, therefore, the commenter’s 

initial premise is not correct. 

Furthermore, the Department of Interior 

has had input into this BART 

determination and rulemaking process. 

The U.S. Fish and Wildlife Service is 

part of the U.S. Department of the 

Interior, which is a FLM for Class I areas 

under the RHR. As such, the RHR 

requires the State to provide the FLM 

with an opportunity for consultation at 

least 60 days prior to any public 

hearing, including an opportunity for 

the FLM to discuss their assessment of 

visibility impairment in any Class I area 

and to make recommendations on the 

development of the RPG and 

implementation of strategies to address 

visibility impairment. 40 CFR 51.308(i). 

In its regional haze SIP, Nebraska stated 

it provided the FLMs a 60-day review 

period of the draft BART permits and 

related materials for GGS and NCS 

beginning July 1, 2008, as well as a 60- 

day review period for the draft regional 

haze SIP beginning November 18, 2010. 

In addition, the FLMs had opportunities 

to provide comments during Nebraska’s 

public comment period for its regional 

haze SIP submission, as well as during 

the public comment period for today’s 

action. During these public comment 

periods, the Department of the Interior, 

in its comments, did not, to EPA’s 

knowledge, raise concerns about any 

impacts to endangered species if 

controls were required at GGS, and in 

fact, encouraged EPA to promulgate a 

source-specific BART FIP requiring SO2

controls for GGS Units 1 and 2 at 0.06 

lb/mmBtu on a 30-day rolling average, 

which would likely correspond to FGD 

controls requiring water. EPA also notes 

that DOI provided input on the national 

Transport Rule ‘‘Better than BART’’ 

rulemaking.28

K. Comments Regarding the Transport 

Rule FIP 

Comment 40: One commenter made a 

factual error in their comment letter, 

stating that, ‘‘EPA simultaneously 

proposed a federal implementation plan 

(‘FIP’) requiring installation of flue gas 

desulfurization (‘FGD’) technology at 

GGS to correct what it perceives to be 

deficiencies in Nebraska’s BART 

determination.’’ 

Response 40: The FIP portion of this 

action does not in fact require FGD 

controls, but rather relies on the 

Transport Rule as an alternative for 

source-specific BART. 

Comment 41: One commenter 

referenced and incorporated its 

February 28, 2012, comments on EPA’s 

proposal that the Transport Rule is 

‘‘Better than BART’’ (Docket ID No. EPA 

HQ–OAR–2011–0729) and its March 22, 

2012 comments on EPA’s Direct Final 

Rule related to state emissions budgets 

under the CSAPR (Docket ID No. EPA– 

HQ–2009–0941). This commenter also 

incorporated by reference the February 

28, 2012, comments made by 

Earthjustice on EPA’s proposal that the 

CSAPR is ‘‘Better than BART’’ (Docket 

ID No. EPA HQ–OAR–2011–0729). The 

commenter stated that it is 

incorporating these comments by 

reference because these actions are 

‘‘inherently related’’ to this action. 

Response 41: In today’s rule, EPA is 

taking final action on the partial 

approval and partial disapproval of 

Nebraska’s regional haze SIP. EPA is 

also taking final action on a FIP relying 

on the Transport Rule to satisfy BART 

for SO2 at one source to address 

deficiencies in the State’s plan. EPA 

made the proposed findings referenced 

by the commenter in separate actions 

and the commenter is merely reiterating 

and incorporating by reference its 

comments on those separate actions. 

These comments are therefore beyond 

the scope of this rulemaking and are or 

will be addressed in those separate 

actions. 

Comment 42: Two commenters point 

out that EPA cannot rely on the 

Transport Rule ‘‘Better than BART’’ 

finding to meet its BART FIP obligation 

for GGS because the Transport Rule is 

not currently in effect and its fate is 

uncertain. 77 FR 33642 (June 7, 2012). 

The D.C. Circuit stayed the Transport 

Rule on December 30, 2011, pending 

review on the merits of several 

consolidated petitions for review of the 

rule. EME Homer City Generation, L.P. 

v. EPA, No. 11–1302 (D.C. Cir. Dec. 30, 

2011). As a result of the stay, the 

Transport Rule currently has no legal 

effect and is not a binding legal 

requirement on states and covered 

sources. EPA cannot rely on its 

Transport Rule to meet BART or any 

other requirement until the stay is lifted. 

Furthermore, a commenter points out 

that the Court is reviewing several 

petitions from states and the industry, 

and the outcome of the Court’s review 

is uncertain. 

Response 42: EPA disagrees that we 

cannot rely on the Transport Rule 

because of the stay imposed by the DC 

Circuit. EPA bases this conclusion on 

the long-term focus of our analysis 

underlying today’s action. 

While the Transport Rule is not 

currently enforceable, the air quality 

modeling analysis underlying EPA’s 

determination that the Transport Rule 

will provide for greater reasonable 

progress than BART is based on a 

forward-looking projection of emissions 

in 2014. However, any year up until 

2018 (the end of the first regional haze 

planning period) would have been an 

acceptable basis for comparing the two 

programs under the Regional Haze Rule. 

See 40 CFR 51.308(e)(2)(iii). We 

anticipate the requirements addressing 

all significant contribution and 

interference with maintenance 

identified in the Transport Rule will be 

implemented prior to 2018. 

We do not agree with the comment 

that because the Transport Rule is 

subject to review by the DC Circuit, EPA 

cannot move forward with reliance on 

EPA’s determination that it provides for 

greater reasonable progress than BART. 

EPA does not view the stay imposed by 

the DC Circuit pending review of the 

underlying rule as undermining EPA’s 

conclusion that the Transport Rule will 

have a greater overall positive impact on 


srobinson on DSK4SPTVN1PROD with RULES2
40164 Federal Register / Vol. 77, No. 130 / Friday, July 6, 2012 / Rules and Regulations 

29National Parks Conservation Association, et al. 

v. Lisa Jackson, Civil Action No. 1:11-cv-01548 

(ABJ) (D.D.C. March 30, 2012). 

30 42 FR 12780 (March 2, 2012). 

31The commenter cites as examples, the final 

FIPs for the San Juan Generating Station in New 

Mexico (76 FR 52388) and Oklahoma (76 FR 81727) 

and the proposed FIP for North Dakota (76 FR 

58570). 

32See 76 FR 82224, footnote 13, which describes 

how states may also include in their SIPs provisions 

applicable to a specific source even if no FLM 

agency has made such a reasonable attribution. 

visibility than BART both during the 

period of the first long-term strategy for 

regional haze and going forward into the 

future. EPA recognizes, as the 

commenter suggests, that EPA may be 

obliged to revisit the Nebraska regional 

haze SIP and FIP if the rule is not 

upheld, or if it is remanded and 

subsequently revised. However, EPA 

does not consider it appropriate to await 

the outcome of the DC Circuit’s decision 

on the Transport Rule before moving 

forward with the regional haze program 

as EPA believes the Transport Rule has 

a strong legal basis, and a judicial 

decree requires the EPA to meet its 

statutory obligations to have a FIP or an 

approved SIP meeting the Regional Haze 

Rule requirements in place by June 15, 

2012.29

Comment 43: Two commenters state 

that given EPA’s disapproval of 

Nebraska’s SO2 BART determination for 

GGS, EPA must promulgate a sourcespecific BART FIP with SO2 limits 

reflective of the addition of FGD 

controls at GGS. One commenter 

contends that due to the issuance of a 

finding that Nebraska failed to submit 

its regional haze SIP in a timely manner, 

EPA is obligated to either promulgate 

full approval of Nebraska’s regional 

haze SIP or promulgate a FIP. The 

commenters state that EPA cannot 

propose to disapprove Nebraska’s SO2

BART determination for GGS without 

concurrently proposing a FIP. One 

commenter stated that the GGS Units 

could meet much lower SO2 emission 

rates than 0.10 lbs/MMBtu analyzed by 

Nebraska with installation of new FGD 

systems, either wet or dry. They restated 

our conclusion that FGD at GGS with 

could achieve 0.06 lb/MMBtu,30 a 90 

percent control efficiency. The 

commenters point out the significant 

visibility improvements available from 

this level of control, greater than the 

improvement modeled by Nebraska. 

(Nebraska modeled rates of 0.15 lbs/ 

MMBtu and 0.10 lbs/MMBtu, but no 

more stringent controls). The 

commenter argues that EPA’s proposed 

FIP relying on the Transport Rule as an 

alternative to BART is legally and 

technically unjustified; installation of 

FGD systems at a rate of 0.06 to 0.15 lbs/ 

MMBtu is cost effective and results in 

significant visibility improvement; and 

it is arbitrary, capricious and 

unreasonable for EPA to require 

otherwise. In addition, the commenter 

believes additional controls are 

routinely being required in the 

application and implementation of 

regional haze in other states and for 

other sources throughout the country.31

Both commenters contend that EPA 

should instead promulgate a sourcespecific BART FIP requiring SO2

controls for GGS Units 1 and 2 at a limit 

of 0.06 lbs/MMBtu on a 30-day rolling 

average. 

Response 43: EPA agrees with the 

commenter that in the absence of an 

approvable BART determination for SO2

for GGS, EPA is obligated to promulgate 

a FIP to satisfy the CAA requirements 

under section 110(c)(1), but EPA 

disagrees that this necessarily requires a 

source-specific SO2 BART FIP for GGS. 

At the point EPA becomes obligated to 

promulgate a FIP, EPA steps into the 

State’s shoes, and must meet the same 

requirements, has flexibility to make 

technical judgments within the bounds 

of the rule, and, as discussed previously 

in this notice, is not statutorily obligated 

to impose source-specific controls. The 

regional haze rule provides certain 

flexibilities to the state (and to EPA, in 

the case of a FIP) to determine 

appropriate BART. Rather than 

requiring source-specific BART 

controls, EPA has the flexibility 

pursuant to 40 CFR 51.308(e)(3) to adopt 

an emissions trading program or other 

alternative program as long as the 

alternative provides greater reasonable 

progress towards improving visibility 

than BART. EPA recently finalized its 

rule determining that the trading 

programs in the Transport Rule, achieve 

greater reasonable progress towards the 

national goal of achieving natural 

visibility conditions in Class I areas 

than source-specific BART. 77 FR 33642 

(June 7, 2012). While EPA opted to 

promulgate source-specific SO2 FIPs in 

other states, such as in Oklahoma and 

New Mexico to address deficiencies in 

BART determinations, in its June 7, 

2012 rulemaking, EPA also promulgated 

FIPs for other states relying on CSAPR 

to remedy deficiencies in BART 

determinations. See also EPA’s response 

to comments 3, 6, and 8, which are 

incorporated by reference. 

Comment 44: Two commenters urged 

EPA to require specific SO2 controls on 

GGS as a geographic enhancement 

under EPA’s proposed rulemaking 

revising the RHR to allow the trading 

programs in the Transport Rule as an 

alternative program to BART.32 One 

commenter suggests that this may be 

done by proposing a geographic 

enhancement to the Transport Rule as a 

FIP as part of the action on the Nebraska 

regional haze plan, or by proposing a 

supplement to the Transport Rule to 

require lower emission limits for 

Nebraska as a geographic enhancement, 

or by removing Nebraska from the 

finding that the Transport Rule is better 

than BART. 

Response 44: The primary purpose of 

EPA’s existing regulatory language 

regarding geographic enhancements, at 

40 CFR 51.308(e)(4), is to allow a 

market-based system to accommodate 

actions taken under the RAVI 

provisions. No RAVI finding has been 

certified that would apply to GGS. A 

state may always choose to include in 

their SIPs provisions applicable to a 

specific source even if RAVI is not 

triggered. In today’s action, EPA is 

finalizing its partial FIP relying on the 

Transport Rule as an alternative to SO2

BART for GGS, and choosing not to 

pursue any geographic enhancements. 

This is based on EPA’s separate rule 

finding that the trading programs of the 

Transport Rule meet the Regional Haze 

Rule’s requirement that the average 

difference in visibility improvement at 

all Class I areas be greater under the 

alternative program. Therefore, EPA has 

met the minimum requirements for SO2

BART for GGS by relying on the 

Transport Rule. The commenters’ 

suggestions that EPA should propose a 

supplement to the Transport Rule to 

require lower emission limits for 

Nebraska as a geographic enhancement, 

or remove Nebraska from the finding 

that the Transport Rule is better than 

BART are beyond the scope of today’s 

action. 

Comment 45: EPA received many 

comments regarding EPA’s rule 

allowing the trading programs in the 

Transport Rule as an alternative to 

BART. Several commenters strongly 

disagreed that EPA’s rulemaking 

(Docket ID No. EPA–HQ–OAR–2011– 

0729) revising the Regional Haze Rule to 

allow the trading programs in the 

Transport Rule as an alternative 

program to BART provides greater 

visibility improvement than sourcespecific BART at GGS. Commenters 

pointed out what they contend to be 

errors in EPA’s IPM modeling 

assumptions for GGS emission rates for 

the 2014 base case and 2014 CSAPR 

scenarios; omission of GGS Unit 2 

emissions and under predicted impacts 

at Mingo Wilderness Area from the IPM 

modeling; reliance on outdated, lower 


srobinson on DSK4SPTVN1PROD with RULES2
Federal Register / Vol. 77, No. 130 / Friday, July 6, 2012 / Rules and Regulations 40165 

33See 77 FR 10324 (Feb. 21, 2012) and 77 FR 

10342 (Feb. 21, 2012). 

34 ($38,210,000 ¥ $1,690,000)/(14,633 ¥ 10,181) 

= $8,203. 

35Cost per ton is $1,636 at the limit of 0.10 lbs/ 

MMBtu. 

36 Distance from Nebraska City Station to 

Hercules Glades is 498 km; to Mingo is 630 km; and 

to Wichita Mountains is 695 km. 

37As shown in the TSD, these calculations are 

based on a three-year average, 2001–2003. 

Maximum baseline impact at Hercules Glades was 

0.933 dv in 2001, and 0.686 dv at Wichita 

Mountains in 2003. These are the only two Class 

I areas which were impacted more than 0.5 dv as 

shown by the CALPUFF modeling for the baseline 

period. 

Transport Rule emission budgets for 

several states without remodeling to 

account for the revised, higher emission 

budgets; 33 and negative effects on the 

ability of each state’s Class I areas to 

make reasonable progress towards the 

national visibility goal of achieving 

natural background conditions by 2064. 

One commenter provides that the 

language of the CAA at section 

169A(b)(2)(A) and (c) requires sourcespecific BART emission limits and EPA 

may only exempt a source from BART 

based on certain demonstrations that the 

source does not cause or contribute to 

significant impairment of visibility, after 

sufficient notice and comment 

rulemaking and concurrence by the 

appropriate FLM. Commenters 

requested that EPA remove Nebraska 

from the determination that the BART 

alternative is better than source-specific 

BART controls in Nebraska. 

Response 45: In today’s rule, EPA is 

taking final action on the partial 

approval and partial disapproval of 

Nebraska’s regional haze SIP and the 

FIP relying on the Transport Rule to 

satisfy BART for SO2 at one source to 

address the approvability issues. The 

rule referenced by the commenter is a 

separate action and these and similar 

comments were made in the context of 

that separate action. These comments 

are therefore beyond the scope of this 

rulemaking. These comments, and those 

similar to it, on the Transport Rule 

‘‘Better than BART’’ rulemaking have 

been addressed, as appropriate, by EPA 

in its final action on the December 30, 

2011, proposed rule. 77 FR 33642 (June 

7, 2012). See also EPA’s response to 

comment 6, which is incorporated by 

reference. 

Comment 46: A commenter noted that 

the Transport Rule will not require 

additional SO2 controls for EGUs in 

Nebraska, and questioned the validity of 

an approach that appears to conclude 

that no SO2 reductions is better than a 

BART reduction of over 28,000 tons per 

year. The commenter contends that by 

averaging across all Class I areas, EPA 

is allowing states like Nebraska to 

benefit from controls in other states and 

to install less controls under the 

Transport Rule than would be required 

by source specific BART. 

Response 46: EPA disagrees with the 

commenter’s characterization of EPA’s 

conclusions related to the Transport 

Rule ‘‘Better than BART’’ rulemaking. 

EPA refers the commenter to EPA’s final 

action on the December 30, 2011, 

proposed rule, 77 FR 33642 (June 7, 

2012), where EPA demonstrated that, on 

average, the Transport Rule results in 

greater average visibility improvement 

at affected Class I areas compared to 

application of BART nationwide. 

L. Comments Regarding BART at 

Nebraska City Station 

Comment 47: One commenter stated 

that they believe that similar issues with 

regard to estimated cost of controls 

likely persisted throughout the cost 

estimations for BART at Nebraska City 

Station, and encouraged EPA to revisit 

these analyses. 

Response 47: The commenter’s 

statements did not contain any detail or 

evidence to indicate that we must find 

the State’s evaluation flawed and reopen it to conduct our own independent 

analysis. 

Furthermore, our approval of the NOX

and SO2 BART determination at 

Nebraska City Station rests on the 

State’s determination that the minimal 

visibility improvement available did not 

warrant the costs of the next level of 

controls. For NOX, Nebraska concluded 

that based on the high incremental cost 

of $8,203 34 per ton for the low 

incremental visibility improvement of 

0.11 dv at Hercules Glades, requiring 

SCR was not warranted. BART for NOX

at OPPD NCS Unit 1 was determined to 

be the installation of LNB/OFA with an 

emission limitation of 0.23 lbs/MMBtu. 

Similarly, for SO2, Nebraska 

concludes that the cost of installing FGD 

($1,636 per ton) 35 is not warranted 

considering the amount of visibility 

improvement (0.44 dv maximum 

improvement at Hercules Glades), and 

therefore proposes no SO2 controls as 

BART for NCS Unit 1. EPA notes that 

the closest Class I areas to this Unit are 

500 km away or greater.36 NCS Unit 1’s 

baseline impact is 0.65 dv at Hercules 

Glades, and 0.46 dv at Wichita 

Mountains, for a cumulative baseline 

impact of 1.11 dv.37 The potential 

improvement from installing FGD at the 

presumptive rate of 0.15 lbs/MMBtu is 

0.25 dv on average at Hercules Glades, 

and 0.23 dv on average at Wichita 

Mountains, for a cumulative 

improvement of 0.48 dv. With an 

annualized cost of $34,720,000, this 

makes the dollar per deciview for 

presumptive SO2 control at NCS 

$72,333,333, which is well over the 

State’s threshold of $40 million/ 

deciview. 

M. Comments Regarding Interstate 

Transport 

Comment 48: One commenter stated 

that EPA failed to ensure that the 

Nebraska regional haze SIP will not 

interfere with interstate transport 

visibility requirements. The commenter 

cites to section 110(a)(2)(D)(i) of the 

CAA which requires states to submit 

new SIPs that provide for the 

implementation, maintenance, and 

enforcement of a new or revised 

standard within three years after 

promulgation of such standard, and 

specifically to section 110(a)(2)(D)(i), 

which applies to interstate transport of 

emissions. This ‘‘interstate transport’’ 

prong requires that SIPs be adopted to 

prohibit any source from emitting 

pollution which will ‘‘(I) contribute 

significantly to nonattainment in, or 

interfere with maintenance by, any 

other state with respect to any such 

national primary or secondary ambient 

air quality standard, or (II) interfere with 

measures required to be included in the 

applicable implementation plan for any 

other state under part C of this 

subchapter to prevent significant 

deterioration of air quality or to protect 

visibility.’’ The commenter points out 

that EPA issued a finding that Nebraska 

failed to submit an interstate transport 

SIP to address the 1997 ozone and 

particulate matter NAAQS, after which 

Nebraska submitted an interstate 

transport SIP submittal, and EPA 

approved it, stating, ‘‘At this time, it is 

not possible for NDEQ to accurately 

determine whether there is interference 

with measures in another state’s SIP 

designed to protect visibility, which is 

the fourth element that was addressed. 

Technical projects relating to visibility 

degradation are under development. 

Nebraska will be in a more 

advantageous position to address the 

visibility projection requirements once 

the initial regional haze SIP has been 

developed.’’ 72 FR 71246 (Dec. 17, 

2007). The commenter states that in its 

approval of the transport visibility 

prong, EPA’s reliance on the regional 

haze SIP and caveat that in a vacuum 

the interstate transport requirements 

may be insufficient to ensure adequate 

visibility protection, necessitates 

analysis of the regional haze plan in 

conjunction with interstate transport 

requirements. 

Response 48: As the commenter notes, 

on April 25, 2005, EPA published a 


srobinson on DSK4SPTVN1PROD with RULES2
40166 Federal Register / Vol. 77, No. 130 / Friday, July 6, 2012 / Rules and Regulations 

38Although the SIP is deficient as described 

elsewhere in today’s action, the partial FIP 

addresses those deficiencies, and no further action 

is needed to address the visibility requirements. 

However, Nebraska may revise its SIP and submit 

the revision to us, to address the requirements 

covered by the FIP. Should such a revision meet 

CAA requirements, we would replace our FIP with 

Nebraska’s SIP revision. We encourage the State to 

revise its SIP to address these requirements. 

39Email from Shelley Schneider, NDEQ to 

Chrissy Wolfersberger, EPA, dated May 17, 2012. 

‘‘Finding of Failure to Submit SIPs for 

Interstate Transport for the National 

Ambient Air Quality Standards for 8- 

Hour Ozone and PM2.5.’’ 70 FR 21147. 

This included a finding that Nebraska 

and other states had failed to submit 

SIPs to address interstate transport of 

emissions affecting visibility and started 

a 2-year clock for the promulgation of 

FIPs by EPA, unless the states made 

submissions to meet the requirements of 

section 110(a)(2)(D)(i) and EPA 

approved such submissions. Id. 

On August 15, 2006, EPA issued 

guidance on this topic entitled 

‘‘Guidance for State Implementation 

Plan (SIP) Submissions to Meet Current 

Outstanding Obligations Under section 

110(a)(2)(D)(i) for the 8-Hour Ozone and 

PM2.5 National Ambient Air Quality 

Standards’’ (2006 Guidance). We 

developed the 2006 Guidance to make 

recommendations to states for making 

submissions to meet the requirements of 

section 110(a)(2)(D)(i) for the 1997 8- 

hour ozone standards and the 1997 

PM2.5 standards. 

As identified in the 2006 Guidance, 

the ‘‘good neighbor’’ provisions in 

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

require each state to have a SIP that 

prohibits emissions that adversely affect 

other states in ways contemplated in the 

statute. Section 110(a)(2)(D)(i) contains 

four distinct requirements related to the 

impacts of interstate transport. The SIP 

must prevent sources in the state from 

emitting pollutants in amounts which 

will: (1) Contribute significantly to 

nonattainment of the NAAQS in other 

states; (2) interfere with maintenance of 

the NAAQS in other states; (3) interfere 

with provisions to prevent significant 

deterioration of air quality in other 

states; or (4) interfere with efforts to 

protect visibility in other states. With 

respect to establishing that emissions 

from sources in the State would not 

interfere with measures in other states 

to protect visibility—which is the 

subject of this particular comment—the 

2006 Guidance recommended that states 

make a submission indicating that it 

was premature, at that time, to 

determine whether there would be any 

interference with measures in the 

applicable SIP for another state 

designed to ‘‘protect visibility’’ until the 

submission and approval of regional 

haze SIPs. 

On December 17, 2007, EPA approved 

Nebraska’s SIP revisions for addressing 

the ‘‘good neighbor’’ provisions of the 

CAA in a direct final rulemaking. 72 FR 

71245. EPA did not receive any 

comments on the 2007 SIP action. In 

today’s action, EPA is not re-opening 

the 2007 approval of Nebraska’s SIP as 

it relates to the CAA section 

110(a)(2)(D)(i). Today’s action also does 

not serve as an approval or disapproval 

of any of Nebraska’s section 110(a) 

infrastructure SIP submittals as they 

pertain to any NAAQS; those actions are 

not relevant to today’s action and will 

be addressed in separate rulemakings as 

appropriate. 

Even if the visibility prong of section 

110(a)(2)(D)(i), as it relates to the 1997 

NAAQS and EPA’s 2007 approval 

action, were relevant to this rulemaking, 

the requirements of the Act and the 

regional haze rule are satisfied by an 

approved SIP, a promulgated FIP, or a 

combination of a SIP and FIP. The 

control measures approved and 

promulgated for Nebraska in today’s 

action will serve to prevent sources in 

Nebraska from emitting pollutants in 

amounts that will interfere with efforts 

to protect visibility in other states and 

thus satisfy the ‘‘interference with 

visibility protection’’ sub-element of 

CAA section 110(a)(2)(D)(i)(II).38

N. Technical Corrections 

Comment 49: OPPD pointed out an 

error in the Nebraska City Unit 1 p.m. 

potential to emit in Table 1 of our 

proposal, ‘‘Facilities with BART-Eligible 

Units in Nebraska.’’ OPPD stated that 

the listed potential to emit for PM 

(43,792 tons per year) is too high, and 

estimated it to be 3,415 tons per year. 

Response 49: Table 1 is a listing of the 

units in Nebraska which are BARTeligible based on source category, date, 

and emissions. The 43,792 figure came 

from Appendix 10.1 of the SIP. In 

response to this comment, we checked 

with the State, who confirmed that the 

figure was too high, and estimated the 

potential to emit to be 2,968 tons per 

year.39 Changing this figure does not 

change the determination that Unit 1 at 

Nebraska City Station is BART-subject. 

Comment 50: NPS commented that 

Table 5 of the Technical Support 

Document, ‘‘BART subject facilities in 

Nebraska,’’ contained a numerical error. 

Impacts should read less than 0.5 dv 

rather than less than 0.05 dv. 

Response 50: The table is corrected to 

read as follows: 

TABLE 5—BART-SUBJECT FACILITIES IN NEBRASKA

Facility Units Class I area 

CALPUFF modeled impacts > 0.5 dv 

2001 2002 2003 

OPPD Nebraska City Station ......... 1 ................... Hercules Glades ............................ 0 .933 0 .556 < 0 .5 

Wichita Mountains .......................... < 0 .5 < 0 .5 0 .686 

NPPD Gerald Gentleman Station ... 1 & 2 ............ Badlands ........................................ 2 .845 2 .828 3 .121 

Wind Cave ..................................... 2 .452 2 .591 2 .127 

Wichita Mountains .......................... 1 .032 1 .206 1 .392 

Rocky Mountain ............................. 1 .136 1 .246 1 .053 

Hercules Glades ............................ 0 .826 0 .616 0 .594 

IV. Regulatory Text 

EPA proposed a FIP relying on the 

Transport Rule as an alternative to 

BART for SO2 emissions from GGS. 

Accordingly, EPA proposed to revise 40 

CFR Part 52, Subpart CC to reflect EPA’s 

proposed determination that the 

requirements of 40 CFR 51.308(e) with 

respect to emissions of SO2 from NPPD, 

GGS Units 1 and 2 will be met by 40 

CFR 52.1429, the Transport Rule FIP 

requirements for SO2 emissions in 

Nebraska. In today’s action, EPA made 

minor clarifying changes to the FIP 

language in 40 CFR 52.1435 to better set 

forth the scope and applicability of 

EPA’s disapproval and FIP. 


srobinson on DSK4SPTVN1PROD with RULES2
Federal Register / Vol. 77, No. 130 / Friday, July 6, 2012 / Rules and Regulations 40167 

V. Statutory and Executive Order 

Requirements 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This action will apply to one facility 

and is therefore not a rule of general 

applicability. In addition, this rule does 

not impose new mandates, because 

EGUs in Nebraska are subject to the 

requirements of the Transport Rule 

independently of this action. Therefore, 

this action is not a ‘‘significant 

regulatory action.’’ This type of action is 

exempt from review under Executive 

Orders 12866 (58 FR 51735, October 4, 

1993) and 13563 (76 FR 3821, January 

21, 2011). 

B. Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

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

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of today’s rule on small entities, small 

entity is defined as: (1) A small business 

as defined by the Small Business 

Administration’s (SBA) regulations at 13 

CFR 121.201; (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district or 

special district with a population of less 

than 50,000; and (3) a small 

organization that is any not-for-profit 

enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of this final action on small 

entities, I certify that this final action 

will not have a significant economic 

impact on a substantial number of small 

entities. The FIP for the NPPD Units 

being finalized today does not impose 

any new requirements on small entities. 

The partial approval of the SIP merely 

approves state law as meeting Federal 

requirements and imposes no additional 

requirements beyond those imposed by 

state law. See Mid-Tex Electric 

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

(D.C. Cir. 1985). 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. U.S. EPA, 427 

U.S. 246, 255–66 (1976); 42 U.S.C. 

7410(a)(2). 

D. Unfunded Mandates Reform Act 

This rule does not contain a Federal 

mandate that may result in expenditures 

of $100 million or more, adjusted for 

inflation, for state, local, and tribal 

governments, in the aggregate, or the 

private sector in any one year. EPA has 

determined that the approval action 

proposed 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. Thus, 

this rule is not subject to the 

requirements of sections 202 or 205 of 

the UMRA. 

This rule is also not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. This 

rule contains regulatory requirements 

that apply to two units at one coal-fired 

power plant in Nebraska. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132, because it 

merely addresses the state not fully 

meeting its obligation to adopt a SIP that 

meets the regional haze requirements 

under the CAA. Thus, Executive Order 

13132 does not apply to this action. In 

the spirit of Executive Order 13132, and 

consistent with EPA policy to promote 

communications between EPA and state 

and local governments, EPA specifically 

solicited comments on the proposed 

rule from state and local officials. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This rule does not have tribal 

implications, as specified in Executive 

Order 13175, because the action EPA is 

taking neither imposes substantial direct 

compliance costs on tribal governments, 

nor preempts tribal law. It will not have 

substantial direct effects on tribal 

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 

Executive Order 13045 (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 

we have reason to believe may have a 

disproportionate effect on children. EPA 

interprets EO 13045 as applying only to 

those regulatory actions that concern 

health or safety risks, such that the 

analysis required under section 5–501 of 

the EO has the potential to influence the 

regulation. This action is not subject to 

EO 13045 because it implements 

specific standards established by 

Congress in statutes. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not subject to Executive 

Order 13211 (66 FR 28355, May 22, 

2001) because it is not a significant 

regulatory action under Executive Order 

12866. 

I. National Technology Transfer and 

Advancement Act 

Section 12 of the National Technology 

Transfer and Advancement Act 

(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. The 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. This action 

does not involve technical standards. 

Therefore, EPA did not consider the use 

of any voluntary consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629, 

February 16, 1994), establishes federal 

executive policy on environmental 

justice. Its main provision directs 

Federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 


srobinson on DSK4SPTVN1PROD with RULES2
40168 Federal Register / Vol. 77, No. 130 / Friday, July 6, 2012 / Rules and Regulations 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

We have determined that this rule 

will not have disproportionately high 

and adverse human health or 

environmental effects on minority or 

low-income populations because it 

increases the level of environmental 

protection for all affected populations 

without having any disproportionately 

high and adverse human health or 

environmental effects on any 

population, including any minority or 

low-income population. This rule does 

not impose any new mandates, because 

EGUs in Nebraska are subject to the 

requirements of the Transport Rule 

independently of this action. See 77 FR 

33642, for an analysis of the 

implications of Executive Order 12898 

in relation to EPA’s final rule, ‘‘Regional 

Haze: Revisions to Provisions Governing 

Alternatives to Source-Specific Best 

Available Retrofit Technology (BART) 

Determinations, Limited SIP 

Disapprovals, and Federal 

Implementation Plans’’ (June 7, 2012). 

The partial approval of the SIP merely 

approves state law as meeting Federal 

requirements and imposes no additional 

requirements beyond those imposed by 

state law. 

K. Congressional Review Act 

The Congressional Review Act, 5 

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

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. Section 804 

exempts from section 801 the following 

types of rules (1) rules of particular 

applicability; (2) rules relating to agency 

management or personnel; and (3) rules 

of agency organization, procedure, or 

practice that do not substantially affect 

the rights or obligations of non-agency 

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

required to submit a rule report 

regarding today’s action under section 

801 because this is a rule of particular 

applicability. 

L. Judicial Review 

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

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by September 4, 2012. Pursuant 

to CAA section 307(d)(1)(B), this action 

is subject to the requirements of CAA 

section 307(d) as it promulgates a FIP 

under CAA section 110(c). 

Filing a petition for reconsideration 

by the Administrator of this final rule 

does not affect the finality of this action 

for the purposes of judicial review nor 

does it extend the time within which a 

petition for judicial review may be filed, 

and shall not postpone the effectiveness 

of such rule or action. This action may 

not be challenged later in proceedings to 

enforce its requirements. See CAA 

section 307(b)(2). 

List of Subjects in 40 CFR Part 52 

Environmental protections, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen oxides, Particulate matter, 

Reporting and recordkeeping 

requirements, Sulfur dioxide, Volatile 

organic compounds. 

Dated: June 15, 2012. 

Lisa P. Jackson, 

Administrator. 

Title 40, chapter I, of the Code of 

Federal Regulations is amended as 

follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

■ 2. § 52.1420 is amended by: 

■ a. Revising the heading for paragraph 

(d) and the heading for the table in 

paragraph (d); 

■ b. In paragraph (d), adding entries (3) 

and (4) to the table in numerical order; 

and 

■ c. In paragraph (e), adding entry (25) 

to the table in numerical order to read 

as follows: 

§ 52.1420 Identification of plan. 

* * * * * 

(d) EPA-approved state sourcespecific requirements. 

EPA-APPROVED NEBRASKA SOURCE-SPECIFIC REQUIREMENTS

Name of source Permit No. State effective 

date EPA approval date Explanation 

*******

(3) Nebraska Public Power District, Gerald Gentleman Station.CP07–0050 ..... 5/11/10 7/6/2012, [Insert FEDERAL REGISTER citation].EPA has only approved the elements of the permit pertaining 

to NOX requirements. 

(4) Omaha Public Power District, 

Nebraska City Station.

CP07–0049 ..... 2/26/09 7/6/2012, [Insert FEDERAL REGISTER citation].

(e) * * * 


srobinson on DSK4SPTVN1PROD with RULES2
Federal Register / Vol. 77, No. 130 / Friday, July 6, 2012 / Rules and Regulations 40169 

EPA–APPROVED NEBRASKA NONREGULATORY PROVISIONS

Name of nonregulatory SIP 

provision 

Applicable 

geographic or 

nonattainment 

area 

State submittal 

date EPA approval date Explanation 

*******

(25) Regional haze plan for the 

first implementation period.

Statewide ........ 6/30/11 7/6/2012, [Insert FEDERAL REGISTER citation].

The plan was approved except for 

that portion pertaining to SO2

BART for Nebraska Public 

Power District, Gerald Gentleman Units 1 and 2, and the 

portion of the long- term strategy addressing the SO2 BART 

measures for these Units. 

■ 3. Section 52.1437 is added to read as 

follows: 

§ 52.1437 Visibility protection. 

(a) Regional Haze. The requirements 

of section 169A of the Clean Air Act are 

not met because the regional haze plan 

submitted by Nebraska on July 13, 2011, 

does not include approvable measures 

for meeting the requirements of 40 CFR 

51.308(d)(3) and 51.308(e) with respect 

to emissions of SO2 from Nebraska 

Public Power District, Gerald Gentleman 

Station, Units 1 and 2. EPA has 

disapproved the provisions of the July 

13, 2011 SIP pertaining to the SO2

BART determination for this facility, 

including those provisions of the longterm strategy addressing the SO2 BART 

measures for these units. 

(b) Measures Addressing Partial 

Disapproval Associated with SO2. The 

deficiencies associated with the SO2

BART determination for Nebraska 

Public Power District, Gerald Gentleman 

Station, Units 1 and 2 identified in 

EPA’s partial disapproval of the regional 

haze plan submitted by Nebraska on 

July 13, 2011, are satisfied by § 52.1429. 

[FR Doc. 2012–15192 Filed 7–5–12; 8:45 am] 

BILLING CODE 6560–50–P 


srobinson on DSK4SPTVN1PROD with RULES2