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[Federal Register Volume 76, Number 120 (Wednesday, June 22, 2011)]
[Rules and Regulations]
[Pages 36329-36339]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-15452]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R10-OAR-2010-1072; FRL-9321-4]

Approval and Promulgation of Implementation Plans; State of 
Idaho; Regional Haze State Implementation Plan and Interstate Transport 
Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving portions of a State Implementation Plan (SIP) 
revision submitted by the State of Idaho on October 25, 2010, as 
meeting the requirements of Clean Air Act (CAA) section 
110(a)(2)(D)(i)(II) as it applies to visibility for the 1997 8-hour 
ozone and 1997 particulate matter (PM2.5) National Ambient 
Air Quality Standards (NAAQS). EPA is also approving portions of the 
revision as meeting certain requirements of the regional haze program, 
including the requirements for best available retrofit technology 
(BART).

DATES: Effective Date: This final rule is effective July 22, 2011.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R10-OAR-2010-1072. All documents in the docket are listed on 
the http://www.regulations.gov Web site. Although listed in the index, 
some information is not publicly available, e.g., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically through http://www.regulations.gov or in hard copy at 
the State and Tribal Air Programs Unit, Office of Air Waste and Toxics, 
EPA Region 10, 1200 Sixth Avenue, Seattle, WA, 98101. EPA requests that 
if at all possible, you contact the individual listed in the FOR 
FURTHER INFORMATION CONTACT section to view the hard copy of the 
docket. You

[[Page 36330]]

may view the hard copy of the docket Monday through Friday, 8 a.m. to 4 
p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Steve Body, EPA Region 10, Suite 900, 
Office of Air, Waste and Toxics, 1200 Sixth Avenue, Seattle, WA 98101.

SUPPLEMENTARY INFORMATION: 

Definitions

    For the purpose of this document, we are giving meaning to certain 
words or initials as follows:
    (i) The words or initials Act, CAA, or Clean Air Act mean or refer 
to the Clean Air Act, unless the context indicates otherwise.
    (ii) The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    (iii) The initials SIP mean or refer to State Implementation Plan.
    (iv) The words Idaho and State mean the State of Idaho.

Table of Contents

I. Background Information
II. Response to Comments
III. Final Action
IV. Scope of Action
V. Statutory and Executive Orders Review

I. Background Information

    On July 18, 1997, EPA promulgated new NAAQS for 8-hour ozone and 
for fine particulate matter (PM2.5). This action is being 
taken, in part, in response to the promulgation of the 1997 8-hour 
ozone and PM2.5 NAAQS. Section 110(a)(1) of the CAA requires 
states to submit a SIP revision to address a new or revised NAAQS 
within 3 years after promulgation of such standards, or within such 
shorter period as EPA may prescribe. Section 110(a)(2) lists the 
elements that such new SIPs must address, as applicable, including 
section 110(a)(2)(D)(i), which pertains to interstate transport of 
certain emissions.
    Section 110(a)(2)(D)(i) of the CAA requires that a SIP must contain 
adequate provisions prohibiting any source or other type of emissions 
activity within the state from emitting any air pollutant in amounts 
which will: (1) contribute significantly to nonattainment of the NAAQS 
in any other state; (2) interfere with maintenance of the NAAQS by any 
other state; (3) interfere with any other state's required measures to 
prevent significant deterioration of air quality; or (4) interfere with 
any other state's required measures to protect visibility. This action 
addresses the fourth prong, section 110(a)(2)(D)(i)(II).
    In the CAA Amendments of 1977, Congress established a program to 
protect and improve visibility in the national parks and wilderness 
areas. See CAA section 169(A). Congress amended the visibility 
provisions in the CAA in 1990 to focus attention on the problem of 
regional haze. See CAA section 169(B). EPA promulgated regulations in 
1999 to implement sections 169A and 169B of the Act. These regulations 
require states to develop and implement plans to ensure reasonable 
progress toward improving visibility in mandatory Class I Federal 
areas\1\ (Class I areas). 64 FR 35714 (July 1, 1999); see also 70 FR 
39104 (July 6, 2005) and 71 FR 60612 (October 13, 2006).
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    \1\ Areas designated as mandatory Class I Federal areas consist 
of national parks exceeding 6000 acres, wilderness areas and 
national memorial parks exceeding 5000 acres, and all international 
parks that were in existence on August 7, 1977. 42 U.S.C. 7472(a). 
In accordance with section 169A of the Clean Air Act, EPA, in 
consultation with the Department of Interior, promulgated a list of 
156 areas where visibility is identified as an important value. 44 
FR 69122 (November 30, 1979). The extent of a mandatory Class I area 
includes subsequent changes in boundaries, such as park expansions. 
42 U.S.C. 7472(a). Although states and Tribes may designate as Class 
I additional areas which they consider to have visibility as an 
important value, the requirements of the visibility program set 
forth in section 169A of the Clean Air Act apply only to ``mandatory 
Class I Federal areas.'' Each mandatory Class I Federal area is the 
responsibility of a ``Federal Land Manager.'' 42 U.S.C. 7602(i). 
When we use the term ``Class I area'' in this action, we mean a 
``mandatory Class I Federal area.''.
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    On October 25, 2010, the State of Idaho submitted to EPA a State 
Implementation Plan (SIP) revision addressing the interstate transport 
requirements for visibility for the 1997 ozone and PM2.5 
NAAQS, [see CAA Sec.  110(a)(2)(D)(i)(II)], and the requirements of the 
regional haze program at 40 CFR Sec.  51.308 (Regional Haze SIP 
submittal). On January 11, 2011, EPA published a notice in which the 
Agency proposed to approve the Idaho SIP revision as meeting the 
requirements of both section 110(a)(2)(D)(i)(II) of the CAA and the 
Regional Haze requirements set forth in sections 169A and 169B of the 
CAA and in 40 CFR 51.300-308, with the exception of Chapter 11, Idaho 
Reasonable Progress Goal Demonstration and Chapter 12, Long Term 
Strategy. 76 FR 1579 (Notice of Proposed Rulemaking or NPR). For 
Idaho's Reasonable Progress Goal Determination and Long-Term Strategy, 
EPA did not propose taking any action.

II. Response to Comments

    EPA received four comments on the proposed action to approve 
certain elements of the Idaho Regional Haze SIP submittal. A comment 
letter was received from the State of Idaho's Department of 
Environmental Quality (IDEQ). A comment was received from a private 
citizen. Adverse comments were received by two entities; The 
Amalgamated Sugar Company (TASCO) and the Wyoming Outdoor Council. The 
discussion below summarizes and responds to the comments received on 
EPA's proposed SIP action and explains the basis for EPA's final 
action.

Comment from IDEQ

    Comment: IDEQ's letter related to a Tier II operating permit IDEQ 
had issued to The Amalgamated Sugar Company (TASCO) on September 7, 
2010, that included the requirement to install and operate BART control 
technology and comply with the BART emission limitations. See the 
September 7, 2010, letter from IDEQ to TASCO issuing the Tier II 
Operating Permit No. T2-2009-0105, that was included in the Idaho 
Regional Haze SIP submittal. The comment explained that on October 12, 
2011, TASCO appealed the Tier II permit and that IDEQ has entered into 
negotiations with TASCO to discuss alternative control measures that 
may be required at the TASCO Nampa facility in lieu of the BART 
conditions as outlined in the SIP submission. IDEQ and TASCO hope these 
negotiations will result in a revised Tier II permit, agreed to by both 
parties, that results in emissions controls that can be considered 
better than the BART currently in the SIP submission.
    Response: EPA acknowledges the notification.

Comment from Private Citizen

    Comment: The comment supports Idaho's actions to improve visibility 
in Class I areas.
    Response: EPA acknowledges the comment.

Comments from TASCO

    Comment 1a: TASCO requests the EPA defer further action of the 
Regional Haze SIP submittal. TASCO explains that it is actively 
negotiating with IDEQ to resolve its challenge to IDEQ's Tier II 
operating permit that was issued on September 7, 2010, imposing BART 
controls on the Riley Boiler at the TASCO Nampa facility. TASCO is 
hopeful that the negotiations will result in a revised BART 
determination and revised Tier II operating permit by May 2, 2011. 
Thus, in the commenter's view, final action on the TASCO portion of the 
Regional Haze SIP is premature, would ignore the ongoing negotiations 
between TASCO and IDEQ, and would cause unnecessary administrative 
burden for EPA, IDEQ, and TASCO because the company expects that a new/
revised Tier II permit will be

[[Page 36331]]

negotiated, issued and submitted to EPA. The commenter urges EPA to 
postpone final action on the Regional Haze SIP submittal pending the 
outcome of ongoing negotiations between TASCO and IDEQ and until EPA 
undertakes a complete reevaluation of the affordability of BART 
controls.\2\
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    \2\ At TASCO's request EPA and IDEQ had a phone conversation 
with a TASCO representative on May 16, 2011, followed by a letter to 
the EPA dated May 25, 2011, in which TASCO reiterated its request 
that EPA postpone final action.
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    Response: TASCO suggests that instead of acting on the Regional 
Haze SIP submittal, EPA defer action until the ongoing negotiations 
between IDEQ and TASCO are completed and a revised BART determination 
for TASCO is submitted to EPA. Unfortunately, EPA cannot defer action 
on the Regional Haze SIP submittal. States were required to submit 
Regional Haze SIPs by December 17, 2007. As Idaho and a number of other 
states failed to meet this deadline, EPA issued a final rule finding 
that these states had failed to submit Regional Haze SIPs to EPA. 74 FR 
2392 (January 15, 2009). Under the CAA, EPA must issue a Federal 
implementation plan (FIP) within two years of finding that a state has 
failed to make a required submission, unless the state submits a SIP 
and EPA fully approves the plan before promulgating a FIP. CAA section 
110(c)(1). In addition, as described above, States are required to 
submit a SIP revision to address a new or revised NAAQS within three 
years after promulgation of such standards that contains adequate 
provisions to prevent emissions from within the state from interfering 
with other states' measures to protect visibility. Idaho failed to 
submit a complete SIP revision within 3 years of promulgation of the 
revised 1997 Ozone and PM2.5 NAAQS as required by section 
110(a)(1) and meeting the requirements of section 110(a)(2)(D)(i). EPA 
is under a court order to take final action approving the Idaho 
Regional Haze SIP submittal, or to otherwise take action to meet the 
requirements of section 110(a)(2)(D)(i)(II) regarding visibility, by 
June 21, 2011. See 76 FR 1581, fn 5. In addition, IDEQ submitted the 
Regional Haze SIP revision to EPA on October 25, 2010, and included the 
Tier II operating permit for TASCO. EPA is obligated to take action on 
that submittal unless or until such time as the State of Idaho 
withdraws that submittal and submits a SIP revision.
    TASCO's suggestion that the Tier II operating permit will change as 
a result of its challenge or the ongoing negotiations is speculative. 
If and when a revised permit is issued sometime in the future, Idaho 
may submit it for EPA review and action, as appropriate. Such SIP 
revision must meet Federal requirements and policy on SIP revisions, 
including the Regional Haze rule requirement that an alternative BART 
determination must achieve greater reasonable progress than would be 
achieved through installation and operation of BART. See 40 CFR 
51.308(e)(2). TASCO's comments concerning the affordability analysis 
are addressed below.
    Comment 1.b.: TACSO also requests that EPA postpone action on the 
SIP for a few additional reasons. First, it states that due to 
confusion and threatened litigation over EPA's national inaction on the 
Regional Haze Rule, Idaho may be the first, or one of the first, states 
to obtain approval. Thus, in their view, postponement of Idaho's plan 
would not deviate from a national level of inactivity. TASCO questions 
the urgency to partially approve Idaho's Regional Haze SIP and suggests 
that based on the emission inventories from other states, Idaho should 
be a low priority.
    TASCO also requests an explanation for the decision to only 
partially approve the Regional Haze SIP and urges EPA to postpone final 
action on Idaho's plan until other components are ready for EPA action.
    Finally, in TASCO's view, postponement of final action is 
consistent with an Executive Order dated January 18, 2011 which 
reaffirms regulatory review principles. TASCO contends the Regional 
Haze SIP is out of step with current economic and political realities. 
Specifically the comment states that the appropriate focus for 
visibility improvements under the CAA should be emission reductions 
from significant contributors, such as natural fire and mobile sources. 
EPA's proposed partial approval, specifically the TASCO BART 
determination, ``ignores significant contributors and over regulates 
the minor contribution of the Riley Boiler. The proposal is not 
consistent with either the substance not the spirit of President 
Obama's EO.''
    Response: There is no confusion regarding litigation over CAA 
section 110(a)(2)(D)(i)(II), the visibility prong of interstate 
transport, which is a separate legal action from litigation over EPA 
inaction on Regional Haze SIPs under Section 169(A)&(B). Idaho 
submitted the Regional Haze SIP to meet two provisions in the CAA--
sections 110 and 169. As explained above, EPA must take action to meet 
the requirements of CAA section 110(a)(2)(D)(i)(II) regarding 
visibility by June 21, 2011. EPA's approval of the BART measures in the 
Idaho Regional Haze SIP submittal fulfills this obligation. EPA notes 
that the existence of any confusion regarding the timeline for EPA 
action on the Regional Haze SIPs is irrelevant to the question of 
whether the Regional Haze SIP submittal meets the requirements of the 
CAA or the regional haze program and has no impact on the statutory 
deadlines by which EPA must act. EPA intends to propose action on the 
remaining elements of the Idaho Regional Haze SIP submittal as 
expeditiously as possible, but finds no reason to delay action on the 
BART provisions.
    Regarding TASCO's comment that this SIP action should be a low 
priority based on emission inventories from other states, EPA notes 
that BART obligations and the deadlines for taking action under the CAA 
apply regardless of the state-to-state relative emission inventories. 
Under the Regional Haze Rule, each state is required to address its 
contribution to visibility impairment in Class I areas. See e.g. 40 CFR 
51.308(d)(3). In addition, while the Regional Haze Rule requires states 
to identify all anthropogenic sources of visibility impairment in 
developing its long-term strategy, Congress placed special emphasis on 
the use of retrofit controls for certain sources, such as the TASCO 
facility's Riley Boiler. IDEQ accordingly carefully considered the use 
of such controls at TASCO and determined that controls were cost-
effective, would improve visibility, and were an appropriate measure 
for assuring reasonable progress toward the national goal.
    The Executive Order identified by the commenter, EO 13563, provides 
that ``[o]ur regulatory system must protect public health, welfare, 
safety, and our environment while promoting economic growth, 
innovation, competitiveness, and job creation * * *. It must identify 
and use the best, most innovative, and least burdensome tools for 
achieving regulatory ends * * *'' While EPA's compliance with EO 13563 
is not subject to judicial review, EPA has complied with the EO in this 
action approving IDEQ's Regional Haze SIP submittal. First, we note 
that EPA's Regional Haze Rules provide substantial flexibility to the 
states in meeting the BART requirements in the CAA while still ensuring 
that reasonable progress towards the national goal is made. Second, 
TASCO's argument that EPA has ignored the contribution of other sources 
to visibility impairment in approving IDEQ's BART determination 
misrepresents EPA's role in evaluating a state's BART determination. 
The CAA provides no basis for EPA to disapprove

[[Page 36332]]

a BART determination as overly stringent because a state has ignored 
other sources of impairment in its SIP.
    Comment 2: On September 7, 2010, IDEQ issued a Tier II operating 
permit to TASCO that imposed both SO2 and NOx BART controls on the 
Riley Boiler at the TASCO Nampa facility and on October 12, 2010, TASCO 
filed a contested petition with the IDEQ challenging the reasonableness 
of the SO2 and NOx BART controls selected. In its comments to EPA, 
TASCO summarized the basis for its challenge at the state level to the 
Tier II operating permits.
    Comment 2a: IDEQ failed to consider the 5-factors required by the 
CAA in choosing BART for SO2 and NOx emissions including the degree of 
improvement in visibility from the use such technology and the cost of 
compliance.
    Response: The Riley Boiler at TASCO, Nampa, is a BART-eligible 
source subject-to-BART. Contrary to the commenter's claim, and as fully 
described in the Federal Register notice, IDEQ did consider the 5-
factors in its BART determination for particulate matter, SO2 and NOx. 
See 76 FR 1586-1589. After determining the available control 
technologies, the five factors are: 1) Cost of compliance; 2) Energy 
and non-air environmental impacts; 3) any pollution control equipment 
in use at the source; 4) the remaining useful life of the facility; 5) 
the degree of improvement in visibility which may reasonably be 
anticipated to result from the use of such technology.
    Comment 2b: IDEQ solely relied on conservative modeling results and 
excluded other relevant evidence resulting in an unreasonable BART 
selection for TASCO's Riley Boiler.
    Response: While its not clear if TASCO is suggesting that EPA 
should disapprove IDEQ's BART detemination on these grounds, we 
disagree that IDEQ relied solely on conservative modeling results. Air 
quality dispersion modeling was used by Idaho for two purposes: to 
identify sources subject to BART and to estimate visibility improvement 
resulting from implementation of technically feasible BART control 
options. In the context of this comment, TASCO does not appear to 
contest IDEQ's identification of sources subject to BART, but rather 
the projection of improvement in visibility from implementation of 
BART.
    To provide a consistent determination of baseline to future 
conditions of source specific visibility impacts, Idaho correctly used 
dispersion modeling. See 76 FR 1585 and EPA's evaluation of WRAP 
modeling in EPA's WRAP TSD, Section 6.A. The model Idaho used is 
consistent with BART Guidelines Appendix Y, (III)(3) which recommends 
use of modeling for individual source attribution with the CALPUFF 
model. See Appendix F, BART Modeling Protocol of the SIP submittal, (p. 
30) for the application of the CALPUFF model.
    EPA approved the BART-subject Modeling Protocol that was used by 
Idaho, Oregon and Washington in their determinations of which BART 
eligible sources are subject to BART. EPA's evaluation of BART modeling 
can be found in the WRAP TSD, Section 7 (p. 51) and Appendix F of the 
Idaho Regional Haze SIP submittal, (p. F-30).
    Comment 2c: Evidence overlooked by IDEQ to support a more 
reasonable outcome for TASCO BART: The Riley Boiler is located over 100 
miles and in the opposite prevailing west to east wind direction from 
Hells Canyon, Eagle Cap, and Strawberry Mountain Wilderness Areas.
    Response: Prevailing winds and distance do not necessarily 
determine the maximum visibility impact of a specific source. Many 
meteorological factors need to be considered in determining visibility 
impact, thus the use of dispersion modeling for determining impact. See 
40 CFR 51, Appendix Y (BART Guidelines, Section III and Section IV.D, 
5.
    Dispersion modeling demonstrates maximum impact of TASCO Nampa 
emissions are in the Eagle Cap Wilderness Area. Commenter has not 
provided any additional information or evidence to refute that 
determination.
    Comment 2d: The Riley Boiler is a small industrial boiler not 
subject to the mandatory approach of Appendix Y BART Guidelines.
    Response: The commenter is correct that IDEQ was not required to 
follow the EPA BART Guidelines at 40 CFR part 51, Appendix Y in making 
its BART determination. However, as explained in the BART Guidelines, 
the Guidelines establish an approach to implementing the BART 
requirements in the Regional Haze Rule, and that EPA believes the 
procedures in the guidelines should be useful to the States in all BART 
determinations.
    Comment 2e: The Riley Boiler is the only sugar beet processing 
factory subject to BART.
    Response: Whether or not the Riley Boiler is the only U.S. sugar 
beet processing factory subject-to-BART is not relevant to the question 
of whether IDEQ reasonably concluded that the boiler met the definition 
of a BART-eligible source and that the boiler could reasonably be 
anticipated to cause or contribute to any visibility impairment at a 
Class I area. Fossil-fuel boilers of more than 250 MBtu/hr heat input 
are potentially subject to BART, regardless of the type of industrial 
facility at which they are located. As explained in the notice of 
proposed rulemaking, IDEQ followed the BART evaluation process to 
identify the BART-eligible sources within the state boundaries, and 
determined, based on its modeled impacts, that TASCO could be 
reasonably anticipated to contribute to visibility impairment at the 
Eagle Cap Wilderness Area. 76 FR 1586.
    Comment 2f: TASCO states that the overall contribution of Idaho 
stationary sources to visibility impairment from SO2 and NOx is small. 
Most impairment in Idaho Class I areas originates from outside the 
State. The commenter also notes that the Riley Boiler accounts for only 
a very small fraction of SO2 and NOx emissions in Idaho.
    Response: By definition, regional haze means visibility impairment 
that is caused by the emissions of air pollutants from numerous sources 
located over a wide geographic area. 40 CFR 51.301. As a result, to 
make reasonable progress towards the national goal, states may be 
required to control emissions from sources that account individually 
for only a small fraction of the total emissions contributing to 
visibility impairment. As required by the CAA and EPA's regulations, 
the state must undertake a BART determination for certain sources such 
as TASCO that are reasonably anticipated to cause or contribute to any 
visibility impairment. The percent contribution of a specific BART 
eligible source to total Statewide or region-wide emissions is not a 
factor in determining whether that source can be considered to 
contribute to visibility impairment. See 40 CFR 51.308(e). To assess 
whether the impact of a single source is sufficient to cause or 
contribute to visibility impairment at any Class I area, Idaho selected 
a contribution threshold of 0.5dv, the upper bound for such a 
threshold. See 70 FR 39104, 39161 (July 6, 2005). Given this, IDEQ 
determined that TASCO Nampa exceeded the 0.5dv threshold and therefore 
correctly determined that the facility is subject-to-BART. The Riley 
Boiler's relative percent contribution of SO2 and NOx emissions in 
Idaho is not a factor in determining whether it is exempt from meeting 
the BART obligations of 40 CFR 51.308(e).
    Comment 2g: By relying on conservative modeling results, IDEQ 
failed to adjust its conclusions in light of TASCO's source 
apportionment modeling that suggests the IDEQ

[[Page 36333]]

modeling greatly overestimates visibility impacts of the Riley boiler.
    Response: TASCO did not provide the TASCO source apportionment 
modeling results referred to in its comments. Thus, EPA cannot evaluate 
the credibility of the TASCO modeling, nor the significance of results.
    However, in EPA's view, Idaho appropriately used CALPUFF modeling, 
as recommended by the BART Guidelines (Appendix Y of the Regional Haze 
Rule) to determine visibility impacts from TASCO. The modeling was 
conducted in accord with the BART Modeling Protocol, ``Modeling 
Protocol for Washington, Oregon, and Idaho: Protocol for the 
Application of the CALPUFF Modeling System Pursuant to the Best 
Available Retrofit Technology (BART) Regulation.'' This protocol was 
developed by Region 10 states and EPA Region 10 to provide consistency 
in decision making across Idaho, Oregon, and Washington in assessing 
the absolute and relative contribution of sources of visibility 
impairment. By providing for consistent estimates, the use of CALPUFF 
and specific modeling protocols ensures that sources are assessed 
equitably across a region. See 76 FR 1586. See also response to comment 
2.b. above.
    Comment 2.h: IDEQ failed to consider the shutdown of three coal-
fired pulp dryers at the Nampa facility in 2007.
    Response: Contrary to the comment, IDEQ did consider TASCO's 
shutdown and replacement of three coal-fired pulp dryers in the 
Regional Haze SIP submittal. However, the shut-down of other units at a 
facility is not a consideration to be taken into account in a BART 
determination. The BART determination for the Riley Boiler must be made 
independent of other control activities at the TASCO Nampa facility or 
other TASCO facilities located in Idaho.
    Idaho did account for the shutdown of the pulp dryers in their 
assessment of baseline conditions at the Eagle Cap Wilderness Area. 
Idaho used the CALPUFF model results and applied scenarios with both 
the pulp dryers operating and not operating. See Table 10-11 of the SIP 
Submittal which provides the visibility impact of three scenarios: 
baseline with pulp dryers operating, baseline with pulp dryers 
shutdown, and BART implementation for NOX and SO2 
on the Riley Boiler.
    Shutdown of the pulp dryers resulted in a reduction in days over 
0.5 dv over a three year period from 127 days to 97 days. 
Implementation of NOX and SO2 BART reduced the 
number of days over 0.5 dv to 3 days. Implementation of BART results in 
a significantly greater improvement in visibility than just the 
shutdown of the pulp dryers.
    Comment 2.i: IDEQ failed to consider the additional emission 
reductions from TASCO's Nyssa, Oregon, shutdown in 2005.
    Response: TASCO Nyssa, Oregon facility is not located in Idaho and 
not subject to Idaho's jurisdiction. Oregon has recognized the emission 
reductions associated with the shutdown of the TASCO Nyssa facility in 
their Regional Haze SIP. See Oregon Regional Haze SIP, Chapter 10.
    Comment 2.j. The comment states that the costs of compliance are 
significant and could adversely affect operations at the Nampa 
facility. Installation of BART will require $15 million capital and 
annual operating expenses of over $644,000.
    Response: In the TASCO BART analysis in the SIP submittal, Appendix 
F, the capital cost and annual costs for SO2 and 
NOX level BART control were presented as follows from Table 
31 and Table 35 of Appendix F and TASCO BART Determination, Appendix D:

----------------------------------------------------------------------------------------------------------------
                                                                                                      Cost
                                                            Capital cost       Annual costs      effectiveness
----------------------------------------------------------------------------------------------------------------
Dry FGD for SO2........................................        $12,970,000         $2,521,000         $2,163/ton
LNB/OFA for NOX........................................          4,875,000            860,000           1270/ton
                                                        --------------------------------------------------------
    Total BART Costs...................................         17,845,000          3,381,000  .................
----------------------------------------------------------------------------------------------------------------

    Idaho determined the cost effectiveness of all technically feasible 
BART control options for SO2 and NOX based on 
these capital investment and annual operating expenses. See Table 31 
and Table 35 of Appendix F, TASCO BART determination, of the SIP 
submittal. The final BART determination of Low NOX Burners 
with Over Fire Air (LNB/OFA) for NOX at a cost of $1270/ton 
is reasonable when compared to other BART determinations across the 
country. The final BART determination of Dry Flue Gas De-sulfurization 
(Dry FGD) for SO2 with a cost of $2163/ton is also 
reasonable.
    The cost estimates in the SIP submittal differ (are higher) from 
the cost estimates provided in TASCO's comment letter. As explained in 
more detail below, while not required to do so, at IDEQ's request, EPA 
conducted an evaluation of whether TASCO could afford the BART controls 
and determined that it could afford the controls and remain a viable 
entity. EPA's evaluation of whether TASCO could afford the BART level 
control technology was based on the higher cost numbers in the SIP 
submittal. The lower costs in the TASCO comment letter would suggest 
TASCO could more readily afford the BART controls.
    Comment 2.k. The degree of visibility improvement anticipated from 
BART is not measurable and does not justify the significant cost.
    Response: We disagree that the visibility improvement anticipated 
from the use of BART at TASCO is not measurable. As explained in 
response to Comment 2.g. above, Idaho used the recommended dispersion 
model, CALPUFF, with a modeling protocol that was developed by EPA, 
Region 10 and the States of Idaho, Oregon and Washington to determine 
the improvements in visibility from the installation and operation of 
BART control technology. That model demonstrates significant 
improvement in visibility in the Eagle Cap Wilderness Area and other 
Class I areas as a result of BART controls on the TASCO Nampa facility. 
Implementation of Dry FGD for SO2 control will reduce the 
number of days with impairment greater than 0.5 dv in the Eagle Cap 
Wilderness Area from 97 to 51 days over a 3 year period (with the pulp 
dryers shutdown). Implementation of LNB/OFA for NOX control 
will reduce the number of days with impairment in the Eagle Cap 
Wilderness Area from 97 to 56 days over a 3 year period (with the pulp 
dryers shutdown). See Table 32 and Table 37, Appendix F of the Idaho 
Regional Haze SIP submittal and 76 FR 1585. Combined SO2 and 
NOX BART control will reduce the number of days over a 0.5 
dv from 97 to 3 days over a 3 year period (with the pulp dryers 
shutdown). See Table 38 of Appendix F for the Idaho Regional Haze SIP 
submittal. As explained in response to Comment 2.j. above regarding 
costs of compliance, the cost associated with installation and 
operation of BART at TASCO Nampa, are not excessive and are comparable 
to the costs for other BART determinations across the country.

[[Page 36334]]

    Comment 3: TASCO comments that IDEQ's approach to the BART 
determination for the Monsanto/P4 facility confirms the flexibility, 
discretion and streamlining that states are afforded in the BART 
process. The comment points out that the BART-subject kiln at the 
Monsanto/P4 facility is a significantly larger emission source than 
TASCO's Riley Boiler and has greater visibility impacts, but that IDEQ 
determined and EPA proposed to approve a BART determination for 
Monsanto/P4 that is less rigorous and costly than TASCO's. The comment 
further states that the BART determination that EPA proposed to approve 
for Monsanto/P4 allows a significant increase in potentially visibility 
impairing NOX emissions while EPA also proposed to approve a 
BART determination for TASCO that reduces emissions overall. The 
comment also contrasted the visibility improvement days predicted to 
result from the BART controls at TASCO Nampa facility versus the less 
number of visibility improvement days predicted to result from the 
required emission controls at Monsanto/P4 facility.
    Response: EPA does not view TASCO's comment as supporting more 
stringent regulation of Monsanto/P4, but rather as presenting an 
argument that it should not be required to install BART controls that 
achieve tighter limits or greater improvements in visibility than other 
BART facilities in Idaho. EPA disagrees that IDEQ should impose BART 
controls at TASCO based on the results of its BART determination at 
another facility. A BART determination is made on a case-by-case basis, 
which by definition is based on facility-specific considerations.
    EPA disagrees that IDEQ provided flexibility to Monsanto/P4 in the 
BART determination for the Rotary Kiln that was not provided TASCO. Due 
to the nature of the process at Monsanto/P4 (i.e. limited temperature 
range) and existing control technology for SO2 and PM, no 
technically feasible control technology is available. Thus, BART for 
the Rotary Kiln is `no additional control' and no emission limitations 
were established in the Idaho issued operating permit. In contrast, the 
TASCO Riley Boiler is a traditional coal-fired industrial boiler and 
technically feasible control options exist and are cost-effective.
    EPA does not understand TASCO's comment that there would be the 
potential for a 2198 t/yr increase in NOX emissions from the 
Rotary Kiln based on the Monsanto/P4 BART determination. Since no 
additional control was determined to be BART, there is no potential to 
increase emissions since the existing emission limitations and design 
parameters at the facility will limit the production of sintered 
phosphate ore and limit NOX emissions to these production 
levels.
    4. Comment: TASCO stated that EPA's review of the costs of 
compliance and affordability of BART controls for the Riley Boiler was 
flawed:
    Comment 4.a. TASCO comments that ``EPA concluded that since the 
company could fund the significant expense, the selected BART controls 
were affordable and indicates that because the EPA focused on the 
company's ``financial status and health,'' as well as whether the 
company could afford the controls and ``remain viable'', EPA applied an 
inappropriate and arbitrary standard of review under EPA's BART 
regulations and guidance. TASCO also states that ``EPA observed in its 
analysis, for example, that TASCO failed to be proactive and set aside 
funding for BART. EPA commented that TASCO should have been aware that 
``a decision not to proactively address BART costs prior to the 
issuance of a permit could make funding the BART related costs 
difficult.'' TASCO also commented that EPA placed `substantial weight' 
on the statements of TASCO's auditors that EPA's interpretation 
misconstrued the Auditor's report and ``EPA conveniently relied upon 
the auditor's silence regarding the BART issues to support their flawed 
conclusion.''
    Response: The EPA BART guidelines, specifically allow, but do not 
require, affordability to be considered when determining BART. 70 FR 
3917. The BART Guidelines indicate that there may be unusual 
circumstances that justify consideration of the plant and economic 
effects of requiring the use of a given control technology. The 
Guidelines suggest that economic effects include the effect on product 
prices, market shares and profitability of the source and that where 
there are special circumstances that are determined to affect plant 
operations, conditions of the plant and economic impacts of requiring 
controls may be considered. Id. The guidelines do not require that a 
specific method be used to conduct an affordability analysis nor do 
they specify a specific standard of review.
    Thus, when making a BART determination the State may take into 
account the economic effects of requiring a particular control 
technology and may consider any resulting economic effects that are 
determined to have a severe impact on the plant's or company's 
operations. In this case, TASCO indicated to IDEQ that affordability 
was a critical element in the BART determination and IDEQ subsequently 
requested EPA to conduct an affordability analysis.
    After considering a variety of factors, EPA determined that TASCO 
could afford to fund the BART controls and explained its reasoning in a 
separate report that was provided to IDEQ. See Executive Summary (Exec. 
Sum.) of the Affordability Analysis of the Amalgamated Sugar Company 
LLC's Affordability Claim with Respect to the Best Available Retrofit 
Technology (BART) for the Riley Boiler at the NAMPA, Idaho facility, 
February 12, 2010. (Affordability Analysis) (The Executive Summary, 
included in Docket for this rulemaking, is available to the public but 
the Affordability Analysis itself contains information claimed as 
Confidential Business Information and is not available for public 
review.) \3\
---------------------------------------------------------------------------

    \3\ The BART Guidelines specifically recognize that an 
affordability review must preserve the confidential nature of 
sensitive business information. 70 FR 39171.
---------------------------------------------------------------------------

    Regarding TASCO's concerns about EPA's statement that TASCO should 
have been aware that ``a decision not to proactively address BART costs 
prior to the issuance of a permit could make funding the BART related 
costs difficult'', TASCO appears to have taken EPA's statements out of 
context. The discussion in EPA's Affordability Analysis about how TASCO 
appears to have handled its finances as it relates to any prospective 
funding of BART was historical in context. EPA is aware that TASCO had 
no financial or legal obligation to fund the BART costs prior to 
issuance of a permit and/or SIP by IDEQ, or a FIP by EPA, as indicated 
in the Executive Summary (See Affordability Analysis, p.2). Since this 
issue was historical in context, it provided background for, but did 
not form a basis to determining whether TASCO could afford paying for 
BART.
    TASCO is correct in stating ``EPA placed `substantial weight' on 
the statements of TASCO's auditors.'' (Affordability Analysis, pp. 37-
38). As explained in the Affordability Analysis, EPA recognized that 
the auditor should have considerable knowledge of TASCO's operations; 
TASCO, Snake River Sugar Company (SRSC) and grower's relationships; 
external conditions that could impact TASCO; BART cost estimates and 
TASCO's ability to continue as a going concern, and felt that the 
auditor would be well informed about the companies' financial 
condition. Affordability Analysis pp. 32-28. However, as is evident 
throughout the Affordability Analysis,

[[Page 36335]]

the auditor's statements are but one piece of the information EPA 
considered in its affordability analysis. See Affordability Analysis 
Exec. Sum. P.2; and Part II.
    Furthermore, a reading of Part 2, Section F in the Affordability 
Analysis in its entirety demonstrates that EPA did not rely on the 
auditor's silence regarding the specific BART costs to support the 
conclusion that TASCO could afford the BART controls, but rather 
identified specific audit related issues that in the first instance 
could be relevant in determining whether TASCO could, or could not 
afford the BART related costs. These audit related issues included: the 
entity continuing as a going concern; subsequent events as they relate 
to an audit; and the type of opinion (and its contents) expressed by 
the auditor. (Affordability Analysis, pp. 35-37) The Affordability 
Analysis demonstrates that EPA was cognizant of the possible 
implications regarding whether certain issues were, or were not 
explicitly addressed by the auditor in the company's audited financial 
statements. As the Affordability Analysis explains, ``In addition, even 
where the audited financial statements and auditor's report do not 
provide explicit confirmation of the entity's claims, understanding why 
these issues are absent from the auditor's report and financial 
statements can also provide important insight with respect to analyzing 
the entity's claims.'' (Affordability Analysis p.32)
    Comment 4.b. TASCO comments that EPA ignored information from 
TASCO. More specifically, TASCO states ``The effects that this 
expenditure would have on `profitability', `market share', `plant 
operations' and position relative to `competing plants' are clearly 
fundamental to the evaluation. EPA ignored information from TASCO on 
the unusual circumstances within the sugar beet industry and the 
effects on the Nampa plant operations and costs, including its ability 
to compete in the U.S. sugar market.'' TASCO further states that to the 
extent TASCO's circumstances were considered, EPA's analysis considered 
the overall economics of TASCO, the company and its related entities, 
not the conditions at the Nampa facility or the economic effects of 
requiring controls there. The direct effects on TASCO's Nampa plant 
operations were underestimated or ignored by EPA. TASCO also comments 
that EPA dismissed the localized effects on the specific plant 
operations at Nampa and instead focused on an assessment of the TASCO 
business structure.
    In commenter's view, EPA's notion of spreading cost throughout the 
Idaho sugar beet farmers is flawed and defies the realities of the 
sugar beet industry and TASCO's operations and underestimates the 
extent of the adverse impacts [of the BART determination]. TASCO states 
that reduced payments to growers in order to fund BART controls at 
Nampa will result in decreased acreage planted in sugar beets 
throughout Idaho. EPA unrealistically assumed that growers will 
continue to plant sugar beets, and ignored the declining trend in 
acreage planted in sugar beets.''
    Referring to EPA's affordability analysis, TASCO commented that EPA 
failed to consider whether competing plants in the same industry are 
required to install BART controls and asserts that they know of no 
other plant in the sugar industry in the US that is required to install 
BART control and ignores information from TASCO about the uniqueness of 
imposing BART on a small industrial boiler relative to competing plants 
in the sugar beet industry.
    Finally, TASCO described the closure of TASCO's Nyssa factory ``as 
evidence of the vulnerability and actual impact of plant operations 
from diminished sugar beet acreage. TASCO also highlighted the 31% 
decline in sugar beet harvest between 2007 and 2008 and EPA downplayed 
these plant specific impacts, and emphasized other information to 
conclude that TASCO, the company, is economically stable.''
    Response: In determining whether TASCO could afford the BART level 
controls, EPA considered a variety of information, including but not 
limited to information provided by TASCO. As explained in the Executive 
Summary, the analysis considered a number of factors including the 
estimated capital and operation and maintenance costs, the estimated 
BART compliance date, TASCO's ability to continue as a viable company, 
the business/financial relationship between TASCO and the Snake River 
Sugar Company (SRSC) and other factors. The analysis specifically 
included information provided by TASCO. (Exec. Sum. p. 2)
    EPA encouraged TASCO to provide any additional substantive 
information to substantiate its claims regarding affordability. 
However, TASCO never provided specific documentation or information 
that substantively demonstrated how the BART costs would adversely 
impact the Nampa facility specifically or that substantively supported 
their affordability claim. For example, the company failed to provide 
information regarding the minimum annual input of sugar beets needed 
for each facility or how BART related costs would specifically impact 
the number of growers. The Analysis explained that ``based on the 
available information, it appeared that TASCO's conclusion that less 
growers necessarily equals less revenue is not supported.'' 
Affordability Analysis p. 25-26. The comments also failed to provide 
substantiated information regarding these items. Additionally, as 
mentioned in the Affordability Analysis, when making its initial 
affordability claim TASCO stated that ``[a] very large consideration of 
this [BART determination] analysis is the ongoing viability of the 
Nampa facility and TASCO as a whole.'' (Affordability Analysis p. 15) 
Thus, TASCO itself recognized the economic status of the company as a 
whole was relevant.
    TASCO's comment also expressed concern with EPA's observation that 
TASCO could spread the cost of controls among sugar beet growers 
throughout Idaho. The comment stated that EPA unrealistically assumed 
that growers will continue to plant sugar beets, and ignored the 
declining trend in acreage planted in sugar beets. However the comment 
fails to substantiate its claims that reduced payments to growers would 
necessarily result in decreased acreage planted in sugar beets in Idaho 
or to refute EPA's assumptions. The Affordability Analysis indicated 
EPA's perspective on this issue and explained that a sugar beet grower 
faces a number of choices in deciding whether or not to grow sugar 
beets. EPA considered how charging the capital cost for BART controls 
to the growers could affect their decision to continue growing sugar 
beets. But, as explained, EPA cannot make any determination as to 
whether any capital cost charged to a grower will determine whether 
that grower decides not to grow sugar beets (e.g., move from sugar 
beets to an alternative crop). EPA also refers to the Patterson study 
(2009) which compared sugar beets, at different price and yield levels, 
to alternative crops. Affordability Analysis, p. 27. Furthermore, the 
analysis also recognized that an additional factor a grower must take 
into consideration in deciding not to grow sugar beets is that ``member 
grower who decides not to grow, i.e., to withdraw from the Cooperative 
(SRSC), would face a significant monetary charge from SRSC.'' Id. 
Another implication is that the grower has crop alternatives though 
these other crops may not provide a long-term solution. Id. As part of 
its review EPA explained that ``An analysis of the economics of growing 
sugar beets in southern Idaho, released in January

[[Page 36336]]

2009, provides important insight into recent sugar beet prices paid to 
growers:

    Sugar beet prices in recent years have been relatively stagnant, 
while input costs have increased. Sugar beet prices over the past 
ten years averaged approximately $39.60 per ton, ranging from a high 
of just over $44 to a low of just over $36 according to data from 
the USDA. A similar situation also existed for most other 
commodities grown in southern Idaho, with no crop having a 
consistent economic advantage. But when grain and forage prices 
spiked to unprecedented levels in 2007, the equilibrium was 
eliminated and growers saw an opportunity to capitalize on the high 
returns that these crops offered. Crops that were often viewed as 
money losing rotation crops by potato and sugar beet growers had 
become the most profitable crop alternatives available to growers. 
But high grain prices were short-lived with grain prices declining 
rapidly after the 2008 harvest. Affordability Analysis p. 22-23.
    Regarding TASCO's comment about the closure of the TASCO Nyssa, 
Oregon plant, in conducting the Affordability Analysis EPA considered 
and weighed all information it had available in coming to its 
conclusion. If it appears that EPA downplayed certain impacts, it is 
because there was additional substantive information as summarized 
above and described throughout its analysis that provided the basis for 
EPA's affordability conclusion, and TASCO did not provide substantive 
information to support its assertions. For example, with respect to 
TASCO's comment regarding the closing of the Nyssa factory: TASCO 
stated that ``the economic benefit to the grower-owned Cooperative of 
running three factories compared to four is significant and cannot be 
ignored.'' (Affordability Analysis p. 27.) TASCO did not provide plant 
specific substantive information that would enable EPA to validate 
TASCO's stated concerns about BART impacts to the Nampa factory and the 
other two factories, and to the growers, e.g., plant capacities, plant 
operating margins, etc.
    Comment 4.c.: TASCO commented that the estimated cost of compliance 
will exceed $75,000 per grower that supplies sugar beets to the Nampa 
factory, based upon an estimated capital cost of $15,690,000. TASCO 
stated that this amount exceeds the estimated annual profit per grower 
which is conservatively $65,400.
    Response: There are several parts to TASCO's comment. First, TASCO 
indicates that the $75,000 BART related cost per grower is charged to 
the Nampa growers as a one-time charge. However, when as part of its 
analysis EPA calculated BART capital costs to the growers (Nampa only 
growers, and to all growers), EPA amortized these costs over two 
different time periods based on information provided by TASCO. See 
Affordability Analysis p. 26; Table 6, p. 29; p. 36. Second, TASCO's 
most recent capital cost estimate ($15,690,000) is $2.11 million less 
than the capital cost EPA used for the Affordability Analysis ($17.8 
million) which was based on TASCO's BART Analysis. See Regional Haze 
SIP submission, Appendix F, Table 31 and Table 35. Furthermore, the 
number of growers for the Nampa factory and in total--(see TASCO 
comments, footnote 8) are greater than those used in the Affordability 
Analysis. See TASCO comment footnote 8 compared to Affordability 
Analysis Table 6, p. 29. Mathematically this would indicate that any 
new calculations made using this latest information would mean lower 
BART related charges passed on to each grower. Third, as explained in 
EPA's analysis, allocating the BART capital costs only to the Nampa 
factory growers and not to all the growers is a business decision made 
by TASCO. Affordability Analysis p. 26. Using the TASCO figures 
provided in the comment, calculated for the two amortization periods of 
six years or nine years, the amortized BART capital cost to all growers 
would amount to less than $0.45 per ton of sugar beets or less than 
$0.30 per ton of sugar beets, respectively, and if the cost was the 
allocated only to the Nampa growers it would be approximately $1.75 and 
$1.17 respectively--amounts less than the figures indicated in EPA's 
original analysis. See Affordability Analysis Table 6.
    Comment 4.d: EPA failed to consider whether competing plants in the 
same industry are required to install BART controls and asserts that 
they know of no other plant in the sugar industry that is required to 
install BART controls and ignores information from TASCO about the 
uniqueness of imposing BART on a small industrial boiler relative to 
competing plants in the sugar beet industry.
    Response: The BART Guidelines provide that an affordability 
analysis may consider whether other competing plants in the same 
industry have been required to install BART controls. 70 FR 39171. 
However, in this instance EPA's analysis determined that regardless of 
the number of other facilities in this industry subject to BART, the 
cost for TASCO to implement the controls determined to be BART are 
affordable and would not significantly impact its continued economic 
viability. Additionally, as explained above, TASCO did not provide or 
substantiate its claims to demonstrate that it would operate at a 
competitive disadvantage and thus, EPA was not able to determine the 
relative competiveness between TASCO and other sugar beet processors.
    Comment 5: TASCO's comment letter to EPA included statements 
regarding the additional information it has outlined for IDEQ in the 
negotiations with the State to resolve the Tier II operating permit 
challenge.
    Response: This comment relates to the pending negotiations between 
TASCO and the State. At this point in time EPA does not know how IDEQ 
will evaluate or use the additional information provided to it. If the 
State revises the TASCO operating permit and submits it to EPA, at that 
time EPA will evaluate IDEQ's decision and the information upon which 
it is based.

Wyoming Outdoor Council Comments

    Comment 1: The commenter requests that a BART determination be 
conducted and BART emission limitations be imposed for two additional 
sources in Idaho: Nu West/Agrium facility (Nu West) in Soda Springs and 
the J.R. Simplot Don Plant (J.R. Simplot) in Pocatello. The commenter 
asserts that given that the Nu West and J.R. Simplot plants are 
directly upwind and in close proximity to Wyoming Class I areas, it 
seems clear they should merit special attention through a requirement 
for the installation of BART. The data developed by the State of 
Wyoming for its draft Regional Haze SIP also make it clear that Idaho 
sources of air pollution are one of the most significant contributors 
to visibility impairing haze in Wyoming Class I areas. The commenter 
also suggests the 0.5 dv impact threshold used to determine whether a 
BART eligible source is subject to BART, was determined for only Class 
I areas located in Idaho. The comment then suggests concern that all 
seven Wyoming Class I areas, and especially the Bridger and Fitzpatrick 
Wilderness Areas, are directly downwind of these plants (Nu West and 
J.R. Simplot), and in quite close proximity to them. Thus, absent 
empirical data to the contrary, there should be no finding that the 
J.R. Simplot and Nu West plants are not significantly impacting Wyoming 
Class I areas.
    Response: In determining which BART eligible sources would be 
subject to BART, Idaho considered all Class I areas within a 300 km 
radius of the source, including Class I areas outside the State 
boundary. Air quality dispersion modeling is the preferred technique to 
determine a single source's impact on any Class I area. See BART 
Guidelines, Section I.A. As discussed

[[Page 36337]]

above, the modeling completed by Idaho demonstrates that BART-eligible 
sources located in Idaho, other than those identified in the SIP 
submittal as exceeding the BART contribution threshold, do not 
significantly impact Class I areas within a 300 km radius of the 
source, including Class I areas in Wyoming and Montana. Furthermore, 
IDEQ consulted with Wyoming (Wyoming Department of Environmental 
Quality) and other neighboring states regarding its emission reduction 
contribution. This consultation included the review of major 
contributing sources of air pollution, interstate transport of 
emissions, major emission sources believed to be contributing to 
visibility impairment, and whether any mitigation measures were needed. 
See Chapter 13.2.1 of the Idaho Regional Haze SIP submittal.
    As explained in the Idaho Regional Haze SIP submission, Idaho 
considered whether these two BART eligible sources were subject-to-
BART. See Regional Haze SIP submittal Appendix F, Table 3 for a 
discussion of the Nu West modeling to determine whether it met the 
threshold for being subject to BART. The modeling shows the impact of 
Nu West in Class I areas within a 300 km radius, including the Bridger 
and Fitzpatrick Wilderness Areas. The SIP submittal explains that over 
a three year period (2003-2005) there were no days where Nu West had an 
impact of greater than 0.5 dv, the Idaho threshold for sources being 
subject to BART. The greatest impact occurred in the Bridger Wilderness 
Area with a value of 0.051 dv, or approximately \1/10\ the level of the 
`BART subject' threshold.
    A discussion of the J.R. Simplot modeling to determine whether it 
met the threshold for being subject to BART can be found in the SIP 
submittal, Appendix F, Table 11 (page 198 of Appendix F of the SIP 
submittal). The modeling shows the impact of J.R. Simplot in Class I 
areas within a 300 km radius of the plant, including the Fitzpatrick 
Wilderness Area. Over a three year period (2003-2005) there were no 
days where J.R. Simplot had an impact of greater than 0.5 dv in the 
Fitzpatrick Wilderness Area.
    The modeling showed that neither facility met the 0.5 dv 
contribution threshold. Therefore, IDEQ reasonably determined that 
neither Nu West nor J.R. Simplot were subject to BART. As explained in 
the proposed rulemaking EPA agreed with the State's determination in 
this regard.
    Comment 2: The commenter believes that Region 10 should make good 
on its finding that the 0.5 dv threshold is not adequate to avoid the 
requirement for BART to be installed because there is likely no 
objective basis to claim that the J.R. Simplot and Nu West plants have 
``relatively limited impact on visibility'' when it comes to Wyoming 
Class areas. If the greatest improvements due to BART being required on 
the Monsanto/P4 Plant are seen at the Teton Wilderness Area, it seems 
very likely that even greater benefits would be seen at the Bridger and 
Fitzpatrick Wilderness Areas if BART were required for the J.R. Simplot 
and Nu West plants. Consequently BART should be required for these 
sources of emissions.
    Response: As explained above, the methods and process IDEQ used to 
determine that 0.5dv is an appropriate threshold to use to determine if 
an individual source is subject to BART are consistent with the 
Regional Haze Rule. For the reasons explained in the Federal Register 
notice describing the rationale for the proposed action, while Idaho 
failed to provide an adequate rationale for selecting the 0.5 dv 
threshold for determining BART eligible sources subject to BART, EPA 
determined that even with a more robust rationale the 0.5 dv threshold 
was acceptable. 76 FR 1585. Additionally, in reviewing the modeling 
results for Nu West and J.R. Simplot for determining whether they are 
subject to BART, it is apparent that Idaho would had to have 
established a threshold below 0.1 dv in order to include these 
additional sources subject to BART. A 1.0 dv change in visibility is 
usually a small but perceptible scenic change. (See Interagency 
Monitoring of Protected Visual Environments (IMPROVE) newsletter, Vol. 
2 No. 1, Winter 1993). In EPA's view, generally a 0.1 dv threshold is 
unreasonable because the human eye could not perceive this change in 
visibility impairment and yet would require significant expenditure of 
resources to implement BART.
    The Wyoming Regional Haze SIP submittal that was submitted to EPA 
Region 8 does not identify any sources in Idaho that significantly 
impact Class I areas in Wyoming. In developing the Reasonable Progress 
Goals for Class I areas in Wyoming, the Wyoming SIP relies on the 
consultation process in the WRAP for establishing emission reductions 
from sources located in Idaho. See Chapter 11.1 page 184 of the Wyoming 
SIP submittal.

III. Final Action

    EPA is approving the BART measures in the Idaho Regional Haze plan 
as meeting the requirements of section 110(a)(2)(D)(i)(II) of the CAA 
with respect to the 1997 8-hour ozone and 1997 PM2.5 NAAQS. 
In addition, EPA is approving portions of the Idaho Regional Haze SIP, 
submitted on October 25, 2010, as meeting the requirements set forth in 
section 169A of the Act and in 40 CFR 51.308(e) regarding BART. EPA is 
also approving the Idaho submittal as meeting the requirements of 
51.308(d)(2) and (4)(v) regarding the calculation of baseline and 
natural conditions for Craters of the Moon National Monument, Sawtooth 
Wilderness Area, and Selway-Bitterroot Wilderness Area, and the 
statewide inventory of emissions of pollutants that are reasonably 
anticipated to cause or contribute to visibility impairment in any 
mandatory Class I Federal Area.

IV. Scope of Action

    Idaho has not demonstrated authority to implement and enforce IDAPA 
chapter 58 within ``Indian Country'' as defined in 18 U.S.C. 1151.\4\ 
Therefore, EPA proposes that this SIP approval not extend to ``Indian 
Country'' in Idaho. See CAA sections 110(a)(2)(A) (SIP shall include 
enforceable emission limits), 110(a)(2)(E)(i) (State must have adequate 
authority under State law to carry out SIP), and 172(c)(6) 
(nonattainment SIPs shall include enforceable emission limits). This is 
consistent with EPA's previous approval of Idaho's prevention of 
significant deterioration (PSD) program, in which EPA specifically 
disapproved the program for sources within Indian Reservations in Idaho 
because the State had not shown it had authority to regulate such 
sources. See 40 CFR 52.683(b). It is also consistent with EPA's 
approval of Idaho's title V air operating permits program. See 61 FR 
64622, 64623 (December 6, 1996) (interim approval does not extend to 
Indian Country); 66 FR 50574, 50575 (October 4, 2001) (full approval 
does not extend to Indian Country).
---------------------------------------------------------------------------

    \4\ ``Indian country'' is defined under 18 U.S.C. 1151 as: (1) 
All land within the limits of any Indian reservation under the 
jurisdiction of the United States Government, notwithstanding the 
issuance of any patent, and including rights-of-way running through 
the reservation, (2) all dependent Indian communities within the 
borders of the United States, whether within the original or 
subsequently acquired territory thereof, and whether within or 
without the limits of a State, and (3) all Indian allotments, the 
Indian titles to which have not been extinguished, including rights-
of-way running through the same. Under this definition, EPA treats 
as reservations trust lands validly set aside for the use of a Tribe 
even if the trust lands have not been formally designated as a 
reservation. In Idaho, Indian country includes, but is not limited 
to, the Coeur d'Alene Reservation, the Duck Valley Reservation, the 
Reservation of the Kootenai Tribe, the Fort Hall Indian Reservation, 
and the Nez Perce Reservation as described in the 1863 Nez Perce 
Treaty.

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[[Page 36338]]

V. Statutory and Executive Orders Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4).
    In addition, this rule does not have Tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the rule neither imposes substantial direct compliance costs on 
Tribal governments, nor preempts Tribal law. Therefore, the 
requirements of section 5(b) and 5(c) of the Executive Order do not 
apply to this rule. Consistent with EPA policy, EPA nonetheless 
provided a consultation opportunity to Tribes in Idaho, Oregon and 
Washington in letters dated January 14, 2011. EPA received one request 
for consultation, and we have followed-up with that Tribe. This action 
also does not have Federalism implications because it does 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 (64 FR 43255, August 10, 1999). This 
action merely approves a state rule implementing a Federal standard, 
and does not alter the relationship or the distribution of power and 
responsibilities established in the CAA. This rule also is not subject 
to Executive Order 13045 ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), because 
it approves a state rule implementing a Federal standard.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. In this 
context, in the absence of a prior existing requirement for the State 
to use voluntary consensus standards (VCS), EPA has no authority to 
disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the CAA. Thus, the requirements of section 
12(d) of the National Technology Transfer and Advancement Act of 1995 
(15 U.S.C. 272 note) do not apply. This rule does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    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 August 22, 2011. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purposes of judicial review nor does 
it extend the time within which a petition for judicial review may be 
filed, and shall not postpone the effectiveness of such rule or action. 
This action may not be challenged later in proceedings to enforce its 
requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
visibility, and Volatile organic compounds.

    Dated: June 13, 2011.
Dennis J. McLerran,
Regional Administrator, Region 10.
    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

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

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

Subpart N--Idaho

0
2. Section 52.670 is amended as follows:
0
a. In paragraph (d) by adding two entries to the end of the table.
0
b. In paragraph (e) by adding an entry to the end of the table.

Sec.  52.670  Identification of plan.

* * * * *
    (d) * * *

                              EPA-Approved Idaho Source-Specific Requirements[sup1]
----------------------------------------------------------------------------------------------------------------
                                                   State effective
         Name of source            Permit No.           date          EPA approval date        Explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
The Amalgamated Sugar Company      T2-2009.0105  09/07/10 (date      06/22/11 [Insert    The following
 LLC--Nampa Factory, Nampa,                       issued).            page number where   conditions: 1.2
 Idaho.                                                               the document        (including table), 3
                                                                      begins].            (heading only), 3.1,
                                                                                          3.2, 3.3, 3.4
                                                                                          (including table),
                                                                                          3.6, 3.7, 3.8, 3.9,
                                                                                          3.10, 3.11, 3.12,
                                                                                          3.13, 3.15, 3.16, and
                                                                                          3.17. (Regional Haze
                                                                                          SIP revision).

[[Page 36339]]

 
P4 Production, L.L.C. , Soda       T2-2009.0109  11/17/2009 (date    06/22/11 [Insert    The following
 Springs, Idaho.                                  issued).            page number where   conditions: 1.2
                                                                      the document        (including Table 1.1),
                                                                      begins].            2.3, 2.4, 2.5, 2.6,
                                                                                          2.7, and 2.8.
                                                                                          (Regional Haze SIP
                                                                                          Revision).
----------------------------------------------------------------------------------------------------------------
\1\ EPA does not have the authority to remove these source-specific requirements in the absence of a
  demonstration that their removal would not interfere with attainment or maintenance of the NAAQS, violate any
  prevention of significant deterioration increment or result in visibility impairment. Idaho Department of
  Environmental Quality may request removal by submitting such a demonstration to EPA as a SIP revision.

* * * * *
    (e) * * *

                    EPA-Approved Idaho Nonregulatory Provisions and Quasi-Regulatory Measures
----------------------------------------------------------------------------------------------------------------
                                 Applicable geographic       State
     Name of SIP provision       or nonattainment area  submittal date  EPA approval date         Comments
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Regional Haze SIP Revision....  State-wide............        10/25/10  06/22/11 [Insert   The portion of the
                                                                         page number        Regional Haze SIP
                                                                         where the          revision relating to
                                                                         document begins].  BART, the
                                                                                            calculation of
                                                                                            baseline and natural
                                                                                            conditions, and the
                                                                                            statewide inventory
                                                                                            of emissions of
                                                                                            pollutants that are
                                                                                            reasonably
                                                                                            anticipated to cause
                                                                                            or contribute to
                                                                                            visibility
                                                                                            impairment in any
                                                                                            mandatory Class I
                                                                                            Federal Area.
----------------------------------------------------------------------------------------------------------------

0
3. Section 52.672 is amended by adding paragraph (g) to read as 
follows:

Sec.  52.672  Approval of plans.

* * * * *
    (g) Visibility protection. (1) EPA approves portions of a Regional 
Haze SIP revision submitted by the Idaho Department of Environmental 
Quality on October 25, 2010, as meeting the requirements of Clean Air 
Act section 169A and 40 CFR 51.308(e) regarding Best Available Retrofit 
Technology. The SIP revision also meets the requirements of 40 CFR 
51.308(d)(2) and (4)(v) regarding the calculation of baseline and 
natural conditions for Craters of the Moon National Monument, Sawtooth 
Wilderness Area, and Selway-Bitterroot Wilderness Area and the 
statewide inventory of emissions of pollutants that are reasonably 
anticipated to cause or contribute to visibility impairment in any 
mandatory Class I Federal Area. The SIP revision also meets the 
requirements of Clean Air Act section 110(a)(2)(D)(i)(II) as it applies 
to visibility for the 1997 8-hour ozone NAAQS and 1997 PM2.5 NAAQS.
    (2) [Reserved]

[FR Doc. 2011-15452 Filed 6-21-11; 8:45 am]
BILLING CODE 6560-50-P
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