### One more version for interagency revview - draft Federal Register notice and draft TSD for the rule titled " Regional Haze: Revisions to Provisions Governing Alternatives to Source -Specific Best Available Retrofit Technology (BART) Determinations, Limited SIP Disapprovals , and Federal Implementation Plans" RIN 2060-AR05 Phil Lorang to: Christine

_ J.

_ Kymn 12/15/2011 04:46 PM Cc: Martha Keating, Rhea Jones, Lea Anderson From: Phil Lorang/RTP/USEPA/US To: Christine

_ J.

_ Kymn@omb.eop.gov Cc: Martha Keating/RTP/USEPA/US@EPA, Rhea Jones/RTP/USEPA/US@EPA, Lea Anderson/DC/USEPA/US@EPA 

### Christine, Per your phone call, attached is another version with two additions. One appears in the text on page 12, the other is footnote 13 which is on or about page 24. Also, please be aware that the section on the time and place for the public hearing is still being worked on.

EO12866_RegionalHazeRevisions_2060-AR05_NPRM_20111019_REDLINE_12_15_11_version5.docx 

### Phil Lorang, Senior Policy Advisor Air Quality Policy Division, OAQPS, EPA 919-541-5463***E.O. 12866 Review

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Page 1 of 74 **6560 -**  **50 -**  **P ENVIRONMENTAL PROTECTION AGENCY**  **40 CFR Part 51 [EPA**  **- HQ**  **- OAR**  **- 2011**  **- 0729; FRL**  **– ]**  **RIN 2060 -**  **AR05 Regional Haze:**  **Revisions to Provisions Governing Alternative s**  **to Source**  **- Specific Best Available Retrofit Technology (BART)**  **Determinations ,**  **Limited SIP Disapprovals, and**  **Federal Implementation Plan**  **s AGENCY:**  Environmental Protection Agency (EPA).
**ACTION:** Proposed rule.
**SUMMARY:** The EPA is proposing revisions to our rules that pertain to the regional haze program. In this action, the EPA is proposing that the trading program in the recently promulgated Transport Rule, also known as the Cross

- State Air Pollution Rule, achieves grea ter reasonable progress towards the national goal of achieving natural visibility conditions in Class I areas than source

- specific Best Available Retrofit Technology (BART) in those states covered by the Transport Rule . In this action, the EPA is also prop osing a limited disapproval of the regional haze State Implementation Plans (SIPs) that have been submitted by Alabama, Florida, Georgia, Kentucky, Indiana, Iowa, Louisiana, Michigan, Mississippi, Missouri, North Carolina, Ohio, Pennsylvania, South Carolina and Texas. These states relied on requirements of the Clean Air Interstate Rule (CAIR) to satisfy certain regional haze requirements
. To address deficiencies in all of the CAIR

- dependent regional haze SIPs , in this action, the***E.O. 12866 Review

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Page 2 of 74 EPA is proposing Federal Implementation Plans (FIPs) to replace reliance on the CAIR requirements in these SIPs with reliance on the Transport Rule as an alternative to BART. S tates are encouraged, at any time, to submit a revision to their regional haze SIP incorporating the requirements of the Transport Rule at which time we will withdraw the FIP we are proposing in this action.
**DATES:** Comments . Comments must be received on or before **[INSERT DATE 30**  **45 DAYS AFTER PUBLICATION IN THE**  **FEDERAL REGISTER]**
. Public Hearings

**ADDRESSES:** Submit your comments, identified by Docket ID No. EPA

- HQ

OAR

- 2011

- 0729, by one of the following methods: . If anyone contacts us requesting a public hearing on or before **[INSERT DATE 1 0**  **DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]**  a public hearing will be held in Research Triangle Park, North Carolina on **[INSERT DATE 15 DAYS AFTER DATE OF**  **PUBLICATION IN THE FEDERAL REGISTER] .**  , we will hold a public hearing. Please refer to SUPPLEMENTARY INFORMATION for additional information on the comment period and the public hearing.

**•** www.regulations.gov **.** Follow the online instructions for submitting comments. Attention Docket ID No. EPA

- HQ

- OAR

- 2011

- 0729
.

**•** Email: a - and

- r - docket@epa.gov
. Attention Docket ID No. EPA

- HQ

OAR

- 2011

- 0729
.

**•** Fax: (202) 566

- 9744. Attention Docket ID No. EPA

- HQ

- OAR

- 2011

- 0729
.***E.O. 12866 Review

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Page 3 of 74 **•** Mail:

**•** EPA Docket Center, EPA West (Air Docket), Attention Docket
ID No. EPA

- H Q

- OAR

- 2011

- 0729 , U.S. Environmenta l Protection Agency, Mailcode: 2822T, 1200 Pennsylvania Ave nue, NW, Washington, D
. C . 20460. Please include a total of two copies. Hand Delivery: U.S. Environmental Protection Agency, EPA West (Air Docket), 1301 Constituti on Avenue, Northwest, Room 3334, Washington, D
. C . 20004, Attention Docket ID No. EPA

- HQ

- OAR

- 2011

- 0729
. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed informat ion. Instructions
. Direct your comments to Docket ID No. EPA

- HQ

- OAR

- 2011

- 0729
. The EPA's policy is that all comments received will be included in the public docket without change and may be made available online
at www.regulations.gov , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclo sure is restricted by statute. Do not submit information that y ou consider to be CBI or otherwise protected through www.regulations.gov or email. The www.regulations.gov website is an “anonymous access” system, which means the EPA will not know your identity or contact information unless you provide i t in the body of your comment. If you send an email comment directly to the EPA without going through www.regulations.gov , your email address will be automatically captured and included as part of the comment that is placed in the***E.O. 12866 Review

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Page 4 of 74 public docket and m ade available on the Internet. If you submit an electronic comment, the EPA recommends that you include your name and other contact information in t he body of your comment and with any disk or CD

- ROM you submit. If the EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, the EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, avoid any form of encryption, and be f ree of any defects or viruses. For additional information about the EPA 's public docket, visit the EPA Docket Center homepage
at www.epa.g ov/epahome/dockets.htm **.** Docket
. All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g. , CBI or other information who se disclo sure is restricted by statute. Certain other material, such as copyrighted material, will be publicl y available only in hard
copy. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the Air and Radiation Docket and Information Center, EPA/DC, EPA West Building, Room 3334, 1301 Constitution Ave., NW, Washington, D . C. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Fri d ay, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566

- 1744, and the telephone number for the Air Docket is (202) 566

- 1742.***E.O. 12866 Review

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Page 5 of 74 **FOR FURTHER INFORMATION CONTACT:** Ms. Martha Keating , Office of Air Quality Planning and Standards, Air Quality Policy Division, Mail code C539

- 0 4 , Research Triangle Park, NC 27711, telephone (919) 541

- 9407; fax number: 919

- 541

- 0824; email address: keating.martha@epa.gov
**SUPPLEMENTARY INFORMATION :**  .

**I. General Information**

This proposed action does not directly regulate emission sources. It will affect state and local air pollution control agencies located within the geographic areas covered by the T ransport Rule A. Does this action apply to me?

1 and whose regional haze state implementation plan relied on
CAIR 2

These sources are in the following gro ups: as an alternative to BART for sulfur dioxide ( SO 2 ) and/or Nitrogen Oxide ( NO X ) for electric generating units ( EGU s ) subject to BART requirements. Some of the EGUs located in such geographic areas may also be affected by the FIPs that ma y result from final rulemaking on this proposed action in that the final rule would allow states the option of not requiring them to meet source - specific BART emission limits to which they otherwise could be subject
.

1 See Federal Implementation Plans to Reduce Interstate Transport of Fine Particulate Matter and Ozone 76 FR 48208 (August 8, 2011)
. 2 See Rule to Reduce Interstate Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; Revisions to the NO x SIP Call; Final Rule, 70 FR 25162 (May 12, 2005)
.***E.O. 12866 Review

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Page 6 of 74 Industry group SIC a NAICS b Electric Services 492 221111, 221112, 221113, 221119, 221121, 221122

a Standard Industrial Classification. b North American Industry Classification System. B. What should I consider as I prepare my comments for the EPA ? 1. Submitting CBI. Do not submit this information to the EPA through www.regulations.gov or email. Clearly mark the part or all of the informa tion that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to the EPA , mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific infor mation that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment tha t does not contain the information claimed to be CBI must be submitted for i nclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR Part 2. 2. Tips for Preparing Your Comments

**•** Identify the rulemaking by docket number and other identifying information (subject heading, . Whe n submitting comments, remember to:

Federal Register date and page number).***E.O. 12866 Review

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Page 7 of 7 4 **•** Follow directions

- The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

**•** Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

**•** Describe any assumptions and provide any technical information and/or data that you used.

**•** If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

**•** Provide specific examples to illustrate your concerns, and suggest alternatives.

**•** Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

**•** Make sure to submit your comments by the comment period deadline identified.

In addition to bei ng available in the docket, an electronic copy of this notice will be posted at C. Where can I get a copy of this document and other related information?

http://www.epa.gov/ttn/oarpg/new.html under “Recent Actions **.”** D. What information should I know about a possible public hearing?***E.O. 12866 Review

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Page 8 of 74 To request that a public hearing be held or t o register to speak at the hearing on this document, contact Ms. Pamela Long at (919) 541

- 0641 before 5 p.m. on **[INSERT DATE 15**  **10 DAYS AFTER DATE OF**  **PUBLICATION IN THE FEDERAL REGISTER].** For updates and additional information on a public hearing, please check the EPA ’s website at http://www.epa.gov/ttn/oarpg/new.html under “recent actions **.”**

The information presented in this notice is organized as follows: E. How is this notice organized?

I. General Information A. Does this action apply to me? B. What should I consider as I prepare my comments for the EPA ? 1. Submitting CBI 2. Tips for Preparing Your Comments C. Where can I get a copy of this document and other related information? D. What information should I know about a public hearing? E. How is this notice organized? II. What a ction is the EPA proposing to t ake? III. What is the b ackground for the EPA ’s proposed a ction? A. The Regional Haze Problem B. Clean Air Act Requirements for Addressing Regional Haze C. A lternative Measures In Lieu of BART 1. Criteria for Comparing Visibility Progress of an Alternative Program to BART 2. What is the Relationship between BART and CAIR ? 3. Remand of CAIR and Impli cations for State Regional Haze Implementation Plans 4. The T ransport R ule and Regional Haze State Implementation Plans IV. Proposed Determination that the Transport Rule is an Approvable Alternative to BART A. Application of the Two

- Pronged Test B. Identification of Affected Class I Areas C. Scenarios Examined D. Emission Projections E. Air Quality Modeling Results F. Proposed Amendment to the Regional Haze Rule***E.O. 12866 Review

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Page 9 of 74 V. Proposed Limited Disapproval of Certain States’ Regional Haze SIPs VI. Proposed FIPs VII. Statutory and Executive Order Review A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments G. Executive Order 13045: Protection of Children from Environmental Health and Safety Risks H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and L ow - Income Populations
**II. What ac**  **tion is the EPA**  **proposing to t ake?** 
In this action , the EPA is proposing to find that the trading
program s in the Transport Rule 3

3 See Federal Imple mentation Plans to Reduce Interstate Transport of Fine Particulate Matter and Ozone 76 FR 48208 (August 8, 2011) and Federal Implementation Plans for Iowa, Kansas, Michigan, Missouri, Oklahoma, and Wisconsin To Reduce Interstate Transport of Ozone 76 FR 40662(July 11, 2011) (finalized on December 15, 2011) for more details. For purposes of this proposed rule, the Transport Rule includes all of the states (28) included in the final Transport Rule and the supplemental. achieve greater reasonable progress towards the national goal of achieving natural visibility conditions in mandatory Class I federal areas than source

- specific BART in the states in which the Transport Rule applies . Specifically, we are proposing that the trading program s set out in the Transport Rule

Formatted: Indent: Left: 0", First line: 0"***E.O. 12866 Review

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Page 10 of 74 meet the requi rements of an alternative program as prescribed in the regional haze rule (RHR) at 40 CFR 51.308(e)(3)and are proposing to revise the regional haze regulations at 40 CFR 51.308(e)(4) accordingly to allow states to substitute participation in the trading pr ogram s under the Transport Rule for source

- specific BART. In addition, we are also proposing to find that any approved SIPs revising or adopting the Transport Rule trading program s , which must control emissions at least as stringe ntly as the Transport Rule FIPs , will also meet the requirements for an alternative to BART for EGUs for the pollutants which the Transport Rule limits in that state.
In this action we are also proposing a limited disapproval of the regional haze SIPs that have been submitted by Alabama, Florida, Georgia, Kentucky, Indiana, Iowa, Louisiana, Michigan, Mississippi, Missouri, North Carolina, Ohio, Pennsylvania, South Carolina and
Texas. These states, fully consistent with the EPA ’s regulations at the time, relied on CAIR requirements to satisfy the BART requirement and the requirement for a long

- term strategy sufficient to achieve the state

- adopted reasonable progress goals. 4

4 The states for which we are proposing limited disapproval in this action are those that both relied on CAIR to satisfy BART requirements and are now covered by the requirements of the Transport Rule , for which we have not already made such a proposal. CAIR and the CAIR FIP requirements, however, will only remain in force to address emissions through the 2011 c ontrol period and thus CAIR cannot be relied upon in a SIP as a substitute for BART or as part of a long

- term control***E.O. 12866 Review

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Page 11 of 74 strategy. The EPA has already proposed limited disapproval of certain other state regional haze SIPs that relied on CAIR
. 5

In this action we are also proposing FIPs for all the states for which we have previously proposed limited disapproval and for all the
states for which we are proposing a limited disapproval of their regional haze SIP in this action due to the change in status of CAIR. Regional haze SIPs wer e due in December 2007. For a number of the states identified above, we made a finding on January 15, 2009, that the states had failed to timely submit a regional haze SIP. Most of these states have subsequently submitted SIPs , but we have not yet acted on them. Under the CAA, the EPA is required to promulgate a FIP within 2 years after finding that a state has failed to make a required submission or after disapproving a SIP in whole or in part, unless the state first adopts and we have fully approved a SIP. CAA § 110(c)(1 ). Given the se CAA requirements and the fact that the Transport Rule has now replaced CAIR , we consider it appropriate at this time to issue FIPs to address the deficiencies in the regional haze SIPs related to the termination of CAIR
. O ur adoption of these FIPs at this time avoids the near

- term need for additional administrative steps on the part of these states
. The proposed regional haze FIPs also allow states the option of a less costly We plan to take final action on both groups of SIPs when this action is finalized.

5 The states for which the EPA has previo usly proposed limited disapproval of regional haze SIPs are Kentucky, Tennessee, Virginia and West Virginia.***E.O. 12866 Review

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Page 12 of 74 approach to meeting the regional haze requirements of the CAA since the proposed FIPs rely on the trading program already promulgated in the Transport Rule
. We encourage s tates , at a ny time , to submit a revision to their regional haze SIP incorporating the requirements of the Transport Rule at which time we will withdraw the FIP we are proposing in this action
. States may also include in such a SIP revision provisions applicable to sp ecific EGU BART sources that they anticipate (or find after implementation of the Transport Rule ) to continue to cause visibility impairment that the state wishes to reduce. However, we anticipate that some states may choose to remain subject to the proposed FIP and not submit a SIP revision. Our proposed finding that the Transport Rule makes greater reasonable progress than BART for EGUs in these states will hold true regardl ess of whether a state chooses to subm it a SIP revision under subpart 52.38 and 52.39 or remai n subject to a FIP
. The proposed FIP s also address the requirements for the affected states’ long

- term strateg ies for R egional Haze
. The affected states originall y set the reasonable progress goals in their SIPs based on the emission reductions expected to be achieved by CAIR, along with other emission reductions qualified for that purpose. Because overall EGU emission reductions from the Transport Rule are larger than the EGU reductions achieved by CAIR, we believe that the reasonable progress goals in the SIPs for t he states addressed in this proposed action do not need to be revised by the states at this time or***E.O. 12866 Review

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Page 13 of 74 replaced by goals established by us via FIPs. The s ubstitution of the Transport Rule for CAIR does not w eaken any affected state’s long

term strategy. We intend to act on the rea sonable progress goals and long

- ter m strategies (including the proposed FIP s ) and other requirements of the RHR (monitoring, cons ultation with federal land managers, etc.) for each state in an individual notice at or after the time of the final rule for this action.
**II I**  **. What is the b**  **ackground for**  **the EPA ’s proposed a**  **ction?**

Regional haze is visibility impairment that is produced by a multitude of sources and activities which are located across a broad geographic area and emit fine particles (PM 2.5 ) ( A. The Regional Haze Problem

e.g. , sulfates, nitrates, organic carbon, elemental carbon, and soil dust), and their precursors ( e.g.

Data from the existing visibility monitoring network, the “Interagency Monitoring of Protected Visual Environments” (IMPROVE) monitoring network, show that visibility impairment caused by air , SO 2 , NO X , and in some cases, ammonia (NH 3 ) and volatile organic compounds (VOC)). Fine particle precursors react in the atmosphere to form fine particulate matter , which impairs visibility by s cattering and absorbing light. Visibility impairment reduces th e clarity and alters the color of scenes , and reduces the distance at which one can see a scene. PM 2.5 can also cause serious health effects and mortality in humans and contributes to environmental effects such as acid deposition and eutrophication.***E.O. 12866 Review

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Page 14 of 74 pollution occurs virtually all the time at most national park and wi lderness areas
. The average visual range 6 in many mandatory Class I federal areas 7 in the western United States is about 60

– 100 miles , or about one

- half to two

- thirds of the visual range that would exist without anthropogenic air pollution. In most of th e eastern Class I areas of the United States, the average visual range is less than 20 miles , or about one

- fifth of the visual range that would exist under estimated natural conditions. 64 FR 35715 (July 1, 1999).

In section 169A of the 1977 Amendments to the CAA, Congress created a program for protecting visibility in the nation’s natio nal parks and wilderness areas. This section of the CAA establishes as a national goal the “prevention of any future, and the remedying of any existing, impairment of visibility in mandatory Class I f ederal areas B. Clean Air Act Requirements for Addressing Regional Haze

6 Visual range is the greatest distance at which a dark object can be viewed against the sky. 7 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 existen ce on August 7, 1977. 42 U.S.C. 7472(a). In accordance with section 169A of the CAA, 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 CAA apply onl y to “ mandatory Class I Federal areas.” Each mandatory Class I Federal ar ea 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.”***E.O. 12866 Review

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Page 15 of 74 which impairment results from manmade air pollution.” On December 2, 1980, the EPA promulgated regulations to addres s visibility impairment in Class I areas that is “reasonably attributable” to a single source or small group of sources, i.e.

Congress added sectio n 169B to the CAA in 1990 to address regional haze issues
. The EPA promulgated the RHR to address regional haze on July 1, 1999 (64 FR 35713 ). T he RHR revised the existing visibility regulations to integrate into the regulation provisions addressing region al haze impairment and established a comprehensive visibility protection program for Class I areas. The requirements for regional haze, found at 40 CFR 51.308 and 51.309, are included in the
EPA ’s visibility protection reg ulations at 40 CFR 51.300

- 309. The requirement to submit a regional haze SIP applies to all 50 states, the District of Columbia and the Virgin Islands. 40 CFR 51.308(b) requires states to submit the first implementation plan addressing regional haze visibility impairment no later than Dece mber 17, 2007. , “reasonably attributable visibility impairment”. 45 FR 80084. These regulations represented the first phase in addressing visibil ity impairment. The
EPA deferred action on regional haze that emanates from a variety of sources until monitoring, modeling and scientific knowledge about the relationships between pollutants and visibility impairment were improved.

Section 169A of the CAA and the EPA ’s implementing regulations require states to establish long

- term strategies for making***E.O. 12866 Review

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Page 16 of 74 reasonable prog ress 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 n atural visibility goal, including a requirement that certain categories of existing major stationary sources 8 built between 1962 and 1977 procure, install, and operate the “Best Available Retrofit Technology” as determined by the
state. Under the RHR, stat es are directed to conduct BART determinations for such “BART

- eligible” sources that may be anticipated to cause or contribute to any visibility impairment in a Class I area
. Rather than requiring source

- specific BART controls, states also have the flexibi lity to adopt an emissions trading program or other alternative program as long as the alternative provides greater reasonable progress towards improving visibility than BART , as described below.

1. C. Alternative Measures In Lieu of BART

Criteria for determining if an alternative measure achieves greater reasonable progress than source

- specific BART are set out in Criteria for Comp aring Visibility Progress of an Alternative Program to BART

8 The set of “ major stationary sources” potentially subject to BART is listed in CAA section 169A(g)(7).***E.O. 12866 Review

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Page 17 of 74 the RHR at § 51.308(e)(3). The “better

- than

- BART” test may be sati sfied as follows: If the distribution of emissions is not substantially different than under BART, and the alternative measure results in greater emission reductions, then the alternative measure may be deemed to achieve greater reasonable progress. If the distribution of emissions is significantly different, then states are directed to conduct an air quality modeling study to determine differences in visibility between BART and the alternative program for each impacted Class I area for the worst and best 2 0 percent of days. 9

- Visibility does not decline in any Class I area The two

- pronged visibility test would demonstrate “greater reasonable progress” under the alternative program if both of the following criteria are met:

10

- There is an overall improveme nt in visibility, determined by comparing the average differences between BART and the alternative over all affected Class I areas. , and

The EPA’s authority to establish non

- BART alternatives and the specific methodology outlined above have has been judicially challenged and upheld twice, firmly establishing that the CAA allows

9 While the RHR directs the state to conduct the air quality modeling study, as described in section III.C.2 , EPA itself conducted such a study for CAIR and through a notice

- and

- comment rulemaking codified the conclusion that the stated criteria were met by adding specific provisions allowing the use of CAIR in lieu of source

- specific BART. 10 As explained in section VI.1, the “decline” is relative to modeled future b aseline visibility conditions in the absence of any BART or alternative program control requirements.***E.O. 12866 Review

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Page 18 of 74 states to substitute other programs for BART where the alternative achieves greater progress. In the first case, the court affirmed our interpretation of CAA 169A(b)(2) as allowing for al ternatives to BART where those alternatives will result in greater reasonable progress than BART
. Center for Energy and Economic Development v. EPA , 398 f.3d 653, 660 (D
. C . Cir. 2005) (“CEED”) (finding reasonable the EPA ’s interpretation of CAA section 169(a)(2) as requiring BART only as necessary to make reasonable progress ). In the second case, Utility Air Regulatory Group v. EPA

2. , 471 F.3d 1333 (D
. C . Cir. 2006), the
court found EPA’s two

- pronged visibility test to be a “reasonable notion of reasonable progress” and specifically upheld our determination that states could rely on CAIR, as discussed below, as an alternative program to BART for EGUs in the CAIR

- affected states.

In May 2005, the EPA published CAIR, which required 28 states and the District of Columbia to reduce emissions of SO 2 and NO X that significantly contribute to , or interfere with maintenance of, the 1997 national ambient air quality standards (NAAQS) for fine particulates a nd/or ozone in any downwind state. The CAIR established emission budgets for SO 2 and NO X for states that contribute significantly to nonattainment in downwind states and required the significantly contributing states to submit SIP revisions that implement e d these budgets. Because such SIP revisions were already overdue, CAIR also promulgated FIPs for the affected states What is the r elationship between BART and CAIR?***E.O. 12866 Review

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Page 19 of 74 establishing a cap and trade program for EGUs with opt

- in provisions for other sources. States ha d the flexibility to subsequently adopt SI P revisions mirroring CAIR requirements or otherwise providing emission reductions sufficient to address interference with attainment or maintenance of the NAAQS in other states. Many affected states adopted CAIR

- mirroring SIPs, while others chose to remai n under CAIR FIPs. As noted in Section III.C.1 , the RHR allows states to implement an alternative program in lieu of BART so long as the alternative
program has been demonstrated to achieve greater reasonable progress toward the national vi sibility goal than would BART. The EPA made just such a demonstration for CAIR in revisions to the regional haze program made in 2005. 70 FR 39104 (July 6, 2005) . In those revisions, we amended our regulations to provide that states participating in the CAIR cap

- and tra de program under 40 CFR part 96 pursuant to an
EPA

- approved CAIR SIP or states that remain subject to the CA IR FIP in 40 CFR part 97 need not require affected BART

- eligible EGUs to install, operate, and maintain BART for emissions of SO 2 and NO X . 40 CFR 51.308(e) (4). As a result of our determination that CAIR was “better

- than

BART” a number of states in the CAIR region, fully consistent with our regulations, designed their regional haze implementation plans to rely on the CAIR cap

- and

- trade program as an alternative to BART for EGU emissions of SO 2 and NO X . These states also relied on CAIR as an***E.O. 12866 Review

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Page 20 of 74 element of a long

- term strategy for achieving their reasonable progress goals. 3.

Foll owing our determination in 2005 that CAIR was “better

- than

BART” and the upholding of this determination by the court in 2006 , the D . C . Circuit Court ruled on several petitions for r eview challenging CAIR on various grounds. As a result of this litigation the D . C . Circuit Court remanded CAIR to the EPA , but later decided not to vacate the rule. Remand of CAIR and Implications for State Regional Haze Implementation Plans

11 The court thereby left CAIR and CAIR SIPs and FIPs in place in order to “temporarily preserve the environmental values cov ered by CAIR” until the EPA replaced it with a rule consistent with the court's opinion. 550 F.3d at 1178. The EPA replaced CAIR with the Transport Rule on August 8, 2011. 12

Many states relied on CAIR as an alternative to BART for SO 2 and NO X for subject EGUs, as allowed under the BART prov isions at 40 CFR 51.308(e)(4). These state s also relied on the improvement in The Transport Rule will take effect on January 1, 2012 . The CAIR and the
CAIR F IPs will remain in place to address emis sions through the end of the 2011 control periods
.

11 See North Carolina v. EPA , 531 F.3d 896; modified by 550 F.3d 1176 (D.C. Cir. 2008). 12 See Federal Implementation Plans to Reduce Interstate Transport of Fine Particulat e Matter and Ozone 76 FR 48208 ( August 8, 2011 )
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Page 21 of 74 visibility expected to result from controls planned or already installed on sources in order t o meet CAIR provisions in developing their long

- term visibility strategy. In addition, many state s relied upon their own CAIR S IPs or the CAIR FIPs for their stat e s as legal justification for these planned controls and consequently did not include separate enforceable measures in the ir long

- term strategies (a required element of a regional haze SIP submission ) to ensure these EGU reductions. These s tates also submi tted demonstrations showing that no additional controls on EGUs beyond CAIR would be reasonable for the first 10

- year implementation period of the regional haze program. Since states in the CAIR

- affected region have based a number of required elements of their regional haze programs on CAIR, which has now been replaced by the Transport Rule , we cannot fully approve regional haze SIP revisions that have rel ied on CAIR for e mission reduction measures . To date, we have proposed limited disapprovals for some states whose regional haze SIP revisions rely on CAIR (for example for the S tate of Tennessee, 76 FR 33662 ( June 9, 2011 ) ). We intend to t ake final action on those proposed limited disapprovals of SIPs when this action is finalized. However, there are other state s whose regional haze SIP relied on CAIR but for which the EPA has not yet proposed to take action. In this action we are proposing a limited disapprov al of the regional haze SIPs that have been submitted by Alabama, Florida, Georgia, Kentucky, Indiana, Iowa,***E.O. 12866 Review

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Page 22 of 74 Lo uisiana, Michigan, Mississippi, Missouri, North Carolina, Ohio, Pennsylvania, South Carolina and Texas. These states relied on CAIR requirements to satisfy both the BART requirement and the requirement for a long

- term strategy sufficient to achieve the state

- adopted reasonable progress goals, and they are now covered by the Transport Rule requirements. 4.

The Transport Rule sunsets CAIR and the CAIR FIPs for control periods in 2012 and beyond
. The Transport Rule requires 2 8 states in the eastern half of the United States to significantly improve air quality by reducing EGU SO 2 and NO X emissions that cross state lines and contribute to ground

- level ozone and /or fine particle pollution in other states. The rule allows air

- quality

- assured allowance trading among covered sources, utilizing an allowance market infrastructure modeled after e xisting allowance trading programs. The Transport Rule allows sources to trade emissions allowances with other sources within the same program ( The Transport Rule and Reg ional Haze State Implementation Plans

e.g.

In developing the Transport Rule , we did not conduct any technical analysis to determine whether complianc e with the Transport Rule would satisfy r egional h aze BART

- related requirements. , ozone season NO X ) in the same or different states, while firmly constraining any emissions shifting that may occur by establishing an emission ceiling for each
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Page 23 of 74 Accordingly, in the final Transport Rule , the EPA did not make a determination or establish any presumption that compliance with the Transport Rule would satisfy BART

- related requirements for EGUs. We have now completed such a technical analysis and it is the basis of this action in which we are proposing to find that in affected mandatory Class I f ederal areas , the Transport Rule achieves greater reasonable progress towards the national goal of achieving natural visibility conditions than source

- specific BART . Specifically, we are proposing that participation by EGUs in the Transport Rule trading program set out in 40 CFR part 97 subparts AAAAA

- DDDDD meets the requirements of an alternative program as prescribed in the regional haze rule (RHR) at § 51.308(e)(3) , and we are proposing to revise the regional haze regula tions at 40 CFR 51.308(e)(4) accordingly. The proposed determinati on in this action that participation in the Transport Rule trading program may substitute for BART applies only to EGUs in the states in the Transport Rule region and only to the pollutants subject to the requirements of the Transport Rule ( i.e. , SO 2 and/o r NO X )
. BART for E e missions of other visibility impairing pollutants ( e.g.

Under the proposed revision to this section, a state in the Transport Rule region whose EGUs are subject to the requirements of the Transport Rule trading program only for annual NO X or ozone season , primary PM 2.5 , NH 3 or VOC) must still be evaluated according to the RHR Guidelines. Non

- EGU sources also remain subject to requirements of the RHR.***E.O. 12866 Review

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Page 24 of 74 NO X would be allowed to rely on our proposed determination that the Transport Rule makes greater reasonable progress than source

- specific BART for NO X . Such a state would still need to address BART for SO 2 and other visibility impairing pollutants
. In this ac tion we are also proposing a FIP for those Transport Rule state s for which we already have or now are proposing a limited disapproval due to the termination of CAIR. For these states, the proposed FIP would replace reliance on the CAIR requirements with

re liance on the Transport Rule as an alternative to BART for SO 2 and NO X emissions from EGUs and as a long

- term strategy measure. We are proposing to leave unchanged the final sentence of section 51.308(e)(4) in the regional haze regulations . This language allows a state to address BART, when it is required based on reasonable attribution of visibility impairment at a Class I area to a particular source by a federal land management agency , by including a geographic enhancement in its SIP. 13

13 States may also include in their SIPs provisions applicable to a specific source

even if no federal land management agency has made such a reasonable attribution
. For example, a geo graphic enhancement in the form of adjusted allocations at a BART

- sub ject source might take the place of source

- specific emission rate limits. Use of a geographic enhancement in the context of reasonable attribution of visibility impairment at a Class I ar ea will be addressed in separate EPA or state actions on a case

- by

- case basis in accordance with 40 CFR 51.306.***E.O. 12866 Review

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Page 25 of 74 We are proposing to leave unchanged the language in the regional haze regulations at 40 CFR 51.308(e)(4) that allows states to retain the discre tion to include geographic enhancements in their SIP to accommodate the situation where BART is required based on reasonable attribution of visibility impairment at a Class I area. 14
**IV. Proposed D**  **etermination that the Transport Rule**  **is an Approvable**  **Alternative to BART**

As described in section C.1., t he two

- pronged test for determining if an alternative program achieves greater reasonable progress than source

- specific BART is set out in the RHR at 40 C FR 51.308(e)(3 ). The underlying purpose of both prongs of the test is to assess whether visibility conditions at Class I areas would be better with the alternative program in place than they would without it. The first prong ensures that the alternative pr ogram will not cause a decline in visibility at any affected Class I area. It addresses the possibility that the alternative program might cause local changes in emissions that could result in localized visibility degradation. The second prong ensures that the program results in improvements in
average visibility across all affected Class I area s as compared to A. Application of the Two

- Pronged Test

14 A geographic enhancement is a method, procedure, or process to allow a broad regional strategy, such as the Transport Rule cap and trade program, to accommodate BART for reasonable attributable impairment. For example, it could consist of a methodology for adjusting allowance allocations at a source which is required to install BART controls.***E.O. 12866 Review

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Page 26 of 74 adopting source - specific BART. Together, these tests ensure that the alternative program provides for grea ter reasonable progress than would source

- specific BART.
In the case of the Transport Rule as an alternative to source

specific BART, the logical reference point for the first prong is visibility conditions as they are expected to be at the time the
Trans port Rule is implemented but in th e absence of BART. This

e nsures that the predicted visibility differences are due to the Transport Rule alternative a nd not to other extrinsic factors. For example, if large increases in wild fires are expected, due to

accu mulation of fuel from past forest management practices, a degradation of visibility from curr ent conditions may be expected. It would be irrational to disapprove an alternative program as not meeting the first prong of the test because of a modeled degrada tion from current conditions, where that degradation is actually anticipated because of smoke from wildfires

— sources which are not subj ect to the CAA BART provisions. By comparing the Transport Rule alternative to future projected baseline conditions wit hout any BART
program , such extrinsic variables are accounted for. The future projected baseline also accounts for other non

- Transport Rule constraints on EGU emissions including the Acid Rain Program, the NOx SIP Call, New Source Performance Standards, Ti tle V permits, any state laws and consent order requiring emission reductions, and any other permanent and enforceable binding reduction commitments
. We are***E.O. 12866 Review

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Page 27 of 74 thus able to a scertain (to the extent possible where future projections are concerned) whether visibility under the alternative would decline at any affected Class I area, all other things being equal. Therefore, in applying the first prong of the test to the Transport Rule , we used a future (201 4 ) projected baseline
. 15

To satisfy each prong of the test we examined visibility differences on both the worst and best 20 percent of days. Thus, under the first prong, visibility must not decline at any affected Class I area on either the best 20 pe rcent or the worst 20 percent days as a result of implementing the Transport Rule ; and, under the second prong the 20 percent best and 20 percent worst days should be considered in determining whether the Transport Rule produc es greater average improvement than source

- specific BART over all affected Class
I areas. Similarly, in applying the second prong of the test, we assumed identical future conditions (the same as in the future 2014 baseline case) for non

- EGU sources for both the source

- specific BART scenario and the Transport Rule scenario.

B. Identification of Affected Class I Areas In applying the two

- pronged test to the Transport Rule , we first identified the Class I areas in the 48 contiguous states with sufficiently complete mo nitoring data available to support the

15 The 2014 baseline modeling for this analysis is identic al to the Transport Rule 2014 baseline. The 2014 baseline does not include the Transport Rule, BART, or CAIR control programs
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Page 28 of 74 analysis. 16 There were 140 such Class I areas represented by 96 IMPROVE monitors ; nine Class I areas were excluded that did not have sufficient historical ambient data from the IMPROVE monitoring program to support the technical analysis. 17 After identifying these areas we then considered two possible approaches we could use to identify which of these areas are “affected” Class I areas in terms of the potential effect of the Transport Rule as an alternative control progr am to source

- specific BART. In the first approach, we identified as affected Class I areas 60 mandatory Class I federal

areas represented by 46 IMPRO VE monitors located in 37 complete states and four partial states that are contained in the eastern portion of the Transport Rule modeling domain
. 18

16 The modeling used a 2005 base case projected to a 2014 future year. The modeling days for the analysi s were based on the observed 20 percent best and 20 percent worst days f rom 2005 at each IMPROVE site. Therefore, the analysis could no t be completed for IMPROVE sites that did not have complete ambient data for 2005. The second approach we considered was a national approach in which visibility impacts on 140 Class I areas across the 48 contiguous states were evaluated.

17 In the Reg ional Haze Program, there are 11 0 ambient monitoring sites which represent 155 Class I areas. Therefore, some monitors represent air quality at more than one Class I area. See Guidance for Tracking Progress under the Regional Haze Rule, U.S. EPA, EPA

- 454/B

03

- 004, September 2003, which i s found at: http://www.epa.gov/ttncaaa1/t1/memoranda/rh_tpurhr_gd.pdf . In our analysis we calculated visibility changes at each individual Class I area. Therefore, some IMPROVE monitor s are counted more than once in the averaging of the visibility data. This does not affect the proposed finding that the Transport Rule is better than source

specific BART. 18 The “eastern” Transport Rule modeling grid used a horizontal resolution of 12 km.***E.O. 12866 Review

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Page 29 of 74 In the Transport Rule , the determination of states that contribute significantly to downwind nonattainment and/or maintenance focused on the 37 states that are fully contained in this eastern modeling domain. The eastern modeling domain a lso includes large parts of Montana, Wy oming, Colorado, and New Mexico. In the Transport Rule , EPA did not determine that Montana, Wyoming, Colorado, New Mexico or the six New England states were contributing to violations of the 1997 ozone NAAQS or the 1997 and 2006 PM 2.5 NAAQS, or interfering with maintenance in downwind states and therefore they are not included in the Transport Rule program. 19

19 The Transport Rule determined that the six New England states did not contribute to nonattainment or interfere with maintenance in downwind states . The Transport Rule did not make a determination whether Montana, Wyoming, Colorado, and New Mexico contribute to nonattainment or interfere with maintenance in neighboring states
. However, we included Class I areas located in these non

- Transport Rule states and partial states in the first approach for identifying “affected areas” . It is conceivable that because of proximity , emissions from the Transport Rule states could impact any of the Class I areas in the eastern Transport Rule modeling domain. Specifically, in this first approach for identifying “affected areas” in the Transport Rule region we examined impacts on 27 Class I areas located within the Transport Rule states and 33 additional Class I areas located in non

- Transport Rule states but within the eastern Transport Rule modeling domain , for a total of 60 Class I are as .***E.O. 12866 Review

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Page 30 of 74 The eastern Transport Rule modeling domain lies within a larger modeling domain which covers the lower 48 states and adjacent portions of Canada and Mexico. In the Transport Rule , the results obtained with this national domain were used to calculate boundary conditions for the eastern Transport Rule region. The EPA did not use the national domain to investigate interstate contributions to nonattainment or interference with maintena nce, in part because the air quality model structure for the national domain is less suitable for that type of use. 20 In the second approach to identifying which areas are “affected” Class I areas we used data from the larger domain to estimate potential vi sibility impacts on Class I areas located to the west of the Transport Rule modeling region boundary. The additional 80 Class I areas under this national a pproach are in states or part of states that were not part of the eastern modeling domain for the Transport Rule , but were part of the western modeling domain. 21

20 The eastern modeling domain used a 12 km grid size, while the national modeling domain used a 36 km grid size. See Air Quality Modeling Final Rule Technical Support Docume nt, U.S. EPA, June 2011, which is found at: http://www.epa.gov/airtransport/pdfs/AQModeling.pdf
. In this approach, the eastern domain 12 km modeling results were used to calculate visib ility changes in the 60 eastern C lass I areas and the national domain 36 km modeling results were used to

21 See Air Quality Modeling Final Rule Technical Support Document, U.S. EPA, June 2011, which is found at: http://www.epa.gov/airtransport/pdfs/AQModeling.pdf
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Page 31 of 74 calculate visibility changes i n the 80 western Class I areas. Consideration of this national region would encompass the possibility that the Transport Rule might have the effect of increasing EGU emissions in the most western portion of the U nited States due to shifts in electricity generation or other market effects. In total, the national domain includes 140 Class I areas (including the 60 contained within the Transport Rule region ). We request comment on whether the “affected Class I areas” should be c onsidered to be the 60 Class I areas located in the Transport Rule eastern modeling domain, the larger set of 140 Class I areas in the larger national domain, or some other set. We note that given the modeling results presented in section VI.5, the choice between the 60 Class I areas or the 140 Class I areas does not affect our proposed conclusion that both prongs of the two

- prong test are
met.

The Transport Rule requires 2 8 states in the eastern half of the United States to reduc e EGU SO 2 and NO X emissions that cross state lines and contribute to ground

- level ozone and fine particle pollution in other states. BART, on the other hand, is app licable nationwide and covers 26 industrial categories, including EGUs, of a certain vintage. In our comparison, we sought to determine whether the Transport Rule cap - and

- trade program for EGUs will achieve greater reasonable progress than would BART for EGUs only. Therefore, C. Scenarios Examined***E.O. 12866 Review

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Page 32 of 74 we examined two relevant control scenarios. The first control scenario ex amined SO 2 and NO X emissions from all EGUs nationwide after the application of BART controls to all BART

- eligible EGUs ( “N ationwide BART ” ) . In the second scenario , EGU S O 2 and NO X emissions reductions attributable to the Transport Rule were applied in the Transport Rule region and BART controls were applied to all BART

eligible EGUS outside the Transport Rule region ( “ Transport Rule + BART

- elsewhere”). The latter scenario reflects the fact that source

specific BART would remain a regional haze SIP element o utside the Transport Rule region . I n order to more accurately project the Transport Rule emissions, it is necessary to assume EGU BART controls outside the Transport Rule region to account for potential load and emission shifting among EGUs. For the first prong of the test, t he “ Transport Rule + BART

elsewhere” scenario was compared to a 2014 future year b ase c ase representing future emissions in the absence of either program (and in the absence of CAIR) . The comparison to the 2014 future year “Base C ase ” allows the EPA to ensure that the Transport Rule would not cause degradation in visibility from conditions predicted for the year 2014 in the absence of the Transport Rule , BART and CAIR
. For both the “Nationwide BART” scenario and the “ Transport Rule
+ BART

- elsewhere” scenario, we modeled the presumptive EGU BART limits for SO 2 and NO X emission rates as specified in the BART Guidelines (Guidelines for BART Determinations Under the Regional***E.O. 12866 Review

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Page 33 of 74 Haze Rule, 70 FR 39104, July 6, 2005), unless an actual emissi on rate at a given unit with existing controls is lower. In the latter case, we modeled the lower emission rates. In addition, we modeled the impacts of BART using stringent assumptions regarding the EGUs (or specific units at EGUs) that would be subject t o BART. Specifically, we assumed that all BART

- eligible EGUs were actually subject to BART requirements. We also assumed that presumptive BART limits would be applied to much smaller units. In this analysis we assumed the threshold for BART

- eligibility was 100 MW for SO 2 and 25 MW for NO X and did not eliminate any sources based on their annual total emissions. (By comparison, the RHR BART Guidelines only apply presumptive limits to EGUs having a total generating capacity of 750 MW and exempt BART

- eligible u nits with the potential to emit less than 40 tons per year of either SO 2 or NO X .) The RHR BART Guidelines specify presumptive SO 2 BART limits for
an EGU with an existing scrubber as 95 percent scrubber control efficiency or 0.15 lbs/MMBtu. We used the Nat ional Electric Energy Data System (NEEDS), an EPA database of existing and planned

committed EGUs, to identify which BART

- eligible units have existing scrubbers. 22

22 See The NEEDS User Guide: http://www.epa.gov/airmarkets/progsregs/epa

ipm/CSAPR/docs/Guide_to_NEEDSv410.pdf which is found at http://www.epa.gov/airmarkets/progsregs/epa

- ipm/transport.html
. The NEEDS also contains information on scrubber efficiency and emission rates. For scrubbed BART

- eligible units we***E.O. 12866 Review

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Page 34 of 74 based our BART emission rate on a comparison of the emission rate listed for that unit in NEEDS to the presumptive SO 2 emission rate. That i s, if the unit has at least a 95 percent efficient scrubber, the emission rate being achieved at that control efficiency was modeled for that unit even if the emission rate was higher than 0.15 lbs/MMBtu. Conversely, if an emission rate of 0.15 lbs/MMBtu o r lower is being achieved , we modeled that emission rate for the unit, even if the scrubber is less than 95 percent efficient. For BART

- eligible units without existing scrubbers, we modeled an emission rate that reflected 95 percent control based on a new installation of a highly efficient scrubber. The RHR BART Guidelines specify presumptive limits for NO X based on coal type and boiler configuration. The BART guidelines also specify that existing NO X controls must be operated year round. For
t he source - sp ecific “ Nationwide BART ” scenario and for the “elsewhere” EGUs in the “ Transport Rule + BART

- elsewhere ” scenario, we assumed that any BART

- subject unit with existing NO X controls in the future baseline case would retain at least those controls and would be required to operate them year round. If the existing NO X controls in the future baseline case did not meet the presumptive BART limits (with the modifications about applicability as described above) , we assumed installation of post

- combustion controls tha t would meet the BART guidelines with year

- round operation. In the

“ Transport Rule + BART

- elsewhere” scenario, there are 5 states that***E.O. 12866 Review

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Page 35 of 74 are subject to the Transport Rule requirements during the ozone season only. 23

**Table 1. BART Presumptive NO X**  **Limits by Boiler Configuration and Coal Type (lbs/MMBtu)**  For these states, NO X controls were assumed to operate only during ozone season as required by the Transport Rule . The RHR BART Guidelines also specify presumptive limits for NO X based on coal type and boiler configuration. Table 1 summarizes the NO X emission limits we applied to BART

- eligible unit s of 25 MW or greater. For units firing a coal blend, which the BART Guidelines do not address, we calculated a weighted presumptive NO X limit based on the percentage of each coal type fired.

**Bituminous Subbituminous**  **Lignite** Dry bottom wall

- fired 0.39 0.23 0.29 Tangential

- fired 0.28 0.15 0.17 Cell burners 0.40 0.45 Not applicable Dry turbo

- fired 0.32 0.23 Not applicable Wet bottom tangential

- fired 0.62 Not applicable Not applicable Cyclone 0.10 0.10 0.10

Certain EGUs in the analysis were constrained by emission limits other than presumptive limits due to a proposed or final regional haze SIP, a proposed or final regional haze FIP, a final consent decree, or state rules. These units and their emission limits are detailed in the Technical Support Document ( TSD ) for this proposed rule. ( See

23 States subject to the Transport Rule requirements during the ozone season only are Oklahoma, Arkansas, Louisiana, Mississippi and Florida. Technical Support Document for Demonstration of the Transport Rule as a BART Alternative, Docket EPA

- HQ

- OAR

- 2011

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Page 36 of 74 To estimate emissions expected from the scenarios described in section IV.3 , we used the Integrated Planning Model (IPM). The IPM is a multi

- regional, dynamic, deterministic linear programming mode l of the electric power sector. It is used extensively by the EPA t o support regulatory activities. The IPM provides forecasts of least

cost capacity expansion, electricity dispatch, and emission control strategies for meeting electricity demand subject to envi ronmental, transmission, dispatch, and reliability constraints. The IPM was used in this case to ev aluate the emissions impacts of the described scenarios limiting the emissions of SO 2 and NO X from EGUs. This analysis used the most recently updated IPM pla tform which is documented at D. Emission Projections

http://www.epa.gov/crossstaterule/
. 24 Table 2 presents the annual emissions for each policy scenario as projected by the IPM. As shown by the numbers in the far right column, “ Transport Rule
+ BART

- elsewhere” achieved greater emission reductions nationwide 25

**Table 2. EGU SO 2**  **and NO X**  **Annual Emissions as Projected by IPM** for both pollutants than source

- specific “Nationwide BART” alone.
**(In thousands of tons per year)** 2014 Base Case EGU Emissions 2014

“ Nationwide BART ” 2014

“ Transport Rule + BART

Additional reduction from

24 E xtensive documentation of the IPM platform may be found at http://www.epa.gov/airmarkets/progsregs/epa

- ipm/transport.html

. 25 In the context of this action, when we refer to nationwide emissions or a nationwide analysis, we are referring to the contiguous 48 states.***E.O. 12866 Review

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Page 37 of 74 elsewhere” “ Transport Rule + BART

elsewhere” ( “Nationwide BART” minus

“ Transport Rule + BART

elsewhere” ) Nationwide SO 2 7,200 7,160 3,800 3,820 2,900 2,918 900 902 Nationwide NO X 2,100 1,946 1,900 1,798 1,800 1,756 100 42
The IPM projections of annual NO X and SO 2 emissions from EGUs for the “ Transport Rule + BART

- elsewhere” control scenario summarized in Table 2, which were used to arrive at the modeling results presented in section VI.5, are based on the state budgets pre scribed in the final Transport Rule published on August 8, 2011 and the supplemental proposal published on July 11, 2011 f inalized on December 1 5 , 2011
. 26

26 See Federal Implementation Plans to Reduce Interstate Transport of Fine Particulate Matter and Ozone 76 FR 48208 ( August 8, 201 1). The ozone season state budgets for the states affected by the supplemental proposal published on July 11, 2001 (76 FR 40662) (and finalized on December 15, 2011) are included in the “ Transport Rule + BART

- elsewhere” control scenario. On October 14, 2011 the EPA issued a proposed notice that would increase NO X and SO 2 budgets for certain states in acc o rdance with revisions to certain unit

- level input data. 76 FR 63860. Even if these proposed increases to state budgets are finalized, emissions of both NO X and SO 2 in the Transport Rule states in the “ Transport Rule + BART

- elsewhere” control scenario will still be substantially below emissions in the “Base Case” scenario. Therefore, we believe that the Formatted: Highlight Comment [MarthaK1]: Confirm date with CAMD***E.O. 12866 Review

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Page 38 of 74 mod eling results in section VI.5 comparing these two scenarios based on the emissions from the final Transport Rule, showing that the first prong of the better

- than

- BART test is satisfied, are also sufficient for determining that the Transport Rule as modifie d by the proposed increases in the state budgets also would meet the first
prong. Also, even if the proposed state budget increases are finalized, the “ Transport Rule + BART

- elsewhere” control scenario is still projected to result in about 3,000 26,000 tons more NO X emission reductions than “Nationwide BART” and about 845,000 821,000 tons more SO 2 emission reductions than “Nationwide BART”. We believe the changes in the emissions differences between these two scenarios that would result if the proposed i ncreases in state budgets are finalized are unlikely to affect the determination of whether “ Transport Rule + BART

- elsewhere” provides greater visibility improvement than “Nationwide BART” averaged across all affected Class I areas, as assessed by the seco nd prong of two

- pronged test. A sensitivity analysis that examines the impact of the proposed state budget increases on visibility improvement is presented in Appendix C of the
TSD. We request comment on this aspect of our proposed determination.

To assess the air quality metrics that are part of the two

– pronged test, we used the IPM emission projections summarized in Table 2 as inputs to an air quality model to determine the impact of E. Air Quality Modeling Results***E.O. 12866 Review

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Page 39 of 74 “ Transport Rule + BART

- elsewhere” and “Nationwide BART” controls on visibility in the affected Class I areas. To project air quality impacts we used the Comprehensive Air Quality Model with Extension (CAMx) version 5.3. The air quality modeling analysis and related analy ses to project visibility improvement are described in more detail in the TSD for the Transport Rule
. 27 The base year meteorology used in the CAMx modeling was 2005. The base year IMPROVE ambient monitoring data for the years 2003

- 2007 were used to project visibility to 2014 and to compare the visibility improvements from the two control scenarios. The 2003

- 2007 IMPROVE data were used because these are the 5 years of data which straddle the base 2005 modeling year. The post

- processing calculations for visibi lity are

co nsistent with the RHR tracking progress guidance 28 and t he regional haze air quality modeling guidance. 29 The visibility projections for each Class I area are presented in the air quality modeling TSD. 30

27 See Air Quality Modeling Final Rule Technical Support Document, U.S. EPA, June 2011, which is found at: http://www.epa.gov/airtransport/pdfs/AQModel ing.pdf
. 28 See Guidance for Tracking Progress Under the Regional Haze Rule, U.S. EPA, EPA

- 454/B

- 03

- 004, September 2003, which is found at: http://www.epa.gov/ttncaaa1/t1/memoranda/rh_tpurhr_gd.pdf
. 29 See Guidance on the Use of Models and Other Analyses for Demonstrating Attainment of Air Quality Goals for Ozone, PM 2.5 , and Regional Haze , U.S. EPA, EPA

- 454/B

- 07

- 002 , April 2007 , which is found at: http://www.epa.gov/scram001/guidance/guide/final

- 03

- pm - rh

guidance.pdf
. 30 See Technical Support Document for D emonstration of the Transport Rule as a BART Alternative, Docket EPA

- HQ

- OAR

- 2011

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Page 40 of 74 The cornerstone of our modeling process was the 2014 “Base C ase ” modeling scenario, which contains emissions for 2014 based on predicted growth and existing emissions controls. We used model

predicted changes in visibility impairment along with the observed base year visibility values to estimate f uture visibility im pairment at each Class I area. We applied the relative predicted change in visibility (expressed as a percent) from the model, due to emissions changes, to the base year visibility values to estimate future visibility. The projected visi bility values were based on emissions changes between the 2005 base year inventory and the 2014 inventory. After we established the future year 2014 “Base C ase ” visibility values, we calculated estimated visibility improvements at each Class I area by mode ling the “Transport Rule + BART

- elsewhere” control strategy as well as the “ N ationwide BART” strategy in 2014. We did two separate analyses to assess the potential visibility impacts of “ Transport Rule + BART

- elsewhere” and “Nationwide BART” controls on 60 Class I areas in the Transport Rule region and on 140 Class I areas in the contiguous 48 states (referred to as the national region ) . For both visibility scenarios w e quantified the visibility impacts on the 20 percent best and 2 0 percent worst visib ility days for the 2014 future

- year base case , the “ Transport Rule + BART

- elsewhere” scenario, and the “Nationwide BART” control scenario.***E.O. 12866 Review

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Page 41 of 74 Under the first prong of the test, visibility cannot degrade at any affected Class I area. To determine if “ Transpor t Rule + BART

elsewhere” resulted in degradation of visibility at any affected Class I area we compared the visibility impacts of “ Transport Rule +
BART

- elsewhere” to base case 2014 visibility conditions. As described in detail in the TSD for this action , the “ Transport Rule + BART

elsewhere” alternative passed this first prong in the Transport Rule region by not causing visibility degradation at any of the 60 affected Class I area s in the eastern Transport Rule modeling domain ( i.e. , when using the first approach to identifying affected areas) , on either the 20 percent best or the 20 percent worst days
. In the national region ( i.e. , when using the second approach to identifying affected areas), the “ Transport Rule + BART

- elsewhere” alternative was also pre dicted to not cause visibility degradation at any affected Class I area on either the 20 percent best of the 20 percent worst days, with a few exceptions. The exceptions were predicted average degradations of 0.23, 0.23 , and 0.26 deciviews, respectively, at Pine Mountain Wilderness, Arizona, Mazatzal Wilderness, Arizona, and Saguaro National Park, Arizona, on the 20 percent worst days
. 31

31 The results for Pine Mountain and Mazatzal were the same because they are both represented by the same IMPROVE monitoring site (Ike ’s Backbone, IKBA). There was also a predicted degradation of 0.05 deciviews on the 20***E.O. 12866 Review

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Page 42 of 74 percent best days at Bryce Canyon National Park in Utah
. 32

The fact that unexpected degradations at some western Class I

areas were predicted for the “Nationwide BART” scenario as well as the “ Transport Rule + BART

- elsewhere” scenario led us to investigate the CAMx modeling output in more detail. While not part of the two

- pronged test, we also compared the baseline scenario to the “Nationwide BART” scenario. The analysis of the national region under the “Nationwide BART” control scenario projected a degradation of 0.23 deciviews on the 20 percent worst days at Pine Mountain Wilderness and Mazatzal Wilderness (the same as the

“ Transport Rule + BART

- elsewhere” result just noted)
.

33

In the CAMx output for 36 km grid cells in the vicinity of these four Class I areas, we observed that modeled concentrations of Based on that investigation, we consider the visibility projections for the western port ion of the national modeling domain that indicate potential degradation in 4 western Class I areas under the “ Transport Rule + BART

- elsewhere” scenario compared to the “Base Case” scenario to be anomalous results that do not indicate the true effects that the

“ Transport Rule + BART

- elsewhere” scenario (or the “Nationwide BART” scenario) will have on visibility in these areas.

32 Changes in visibility were rounde d to the nearest 0.1 deciviews. Therefore, any changes that were less than 0 .05 were rounded down and treated as zero. Any changes that were 0.05 or greater were rounded up and treated as potential degradation. 33 Appendix B of the The TSD in the docket for this action provides more information on this aspect of the CAMx modeling results.***E.O. 12866 Review

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Page 43 of 74 nitra te were very low on the 20 percent worst days (and 20 percent best days at Bryce Canyon) in both the “ Transport Rule + BART

elsewhere” case and the “Nationwide BART” case
. The modeled nitrate concentrations in these cases ranged from 0.001 to 0.004 μ g/m 3 , averaged across the 20 percent worst or best days in 2005
. Notably, the modeled concentrations were generally a small fraction of monitored ambient nitrate concentrations at the IMPROVE sites for the four Class I areas. In the cases where degradation was c alculated, a very small increase in modeled nitrate was observed on several of the
worst or best modeled days. This lead to a relatively large modeled percent increase in nitrate. As an example, on the worst day s at Pine Mountain and Mazatzal the modeled nitrate concentration increased from 0.001 μ g/m 3 in the 2 014 base case to 0.002 μ g/m 3 in the

“ Transport Rule + BART

- elsewhere ” case. Further examination of the days when these nitrate increases occur reveals a somewhat random pattern of very small increases and decreases that appear unrelated to EGU emissions changes
. While IPM predicts modestly higher NO X emissions in some nearby states under the

“ Transport Rule + BART

- elsewhere” scenario, the checkerboard pattern of nitrate differences in A rizona and southern Utah show no logical connection to these modestly higher emissions
. This nitrate modeling issue appears similar to a previously noted nitrate chemistry stability issue when modeled concentrations are very small and***E.O. 12866 Review

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Page 44 of 74 relative humidity is very low. 34

To illustrate how sensitive the predictions of degradation are to highly variable results on particular days, if the one day of the 20 percent worst or best days with the largest increase in modeled nitrate concentration at each site is removed from consideration for that site, the apparent degradations no longer occur. We also note that although the increases in modeled nitrate concentrations are

ver y small (ranging between 0.01 and 0.04 μg/m 3 for the one day at each site just mentioned), the “relative response factor” method we used to combine CAMx output ( representing future conditions ) with IMPROVE monitoring data ( representing historical condition s ) greatly magnified these small increases in nitrate concentrations. The small increases in modeled nitrate are converted to relatively large percent increases in nitrate and then multiplied by actual ambient nitrate concentrations in the base period that are far higher than the concentrations predicted by CAMx. Thus, very small differences in concentrations of nitrate in the CAMx output that would have had no Thus, we conclude that these positive and negative differences between very low nitrate concentrations are a modeling artifact attributable to the nitrate physics in CAMx for the conditions that apply in this geographic area on these days, and

a re not reasonable predictors of the true relative effects on visibility of the emission control scenarios.

34 T Appendix B of the he TSD in the docket for this action provides more information on this issue
.***E.O. 12866 Review

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Page 45 of 74 effect on calculated deciview values if used directly, nevertheless result in apparent degradatio ns on the order of 0.1 to 0.26 deciviews after being combined with IMPROVE data. The EPA is investigating possible modifications to the software used to post

- process CAMx output . These possible revisions are aimed at avoiding potentially misleading results in situations such as the one observed near these western Class I areas. W e seek comment on an alternate methodology described in Appendix B of the TSD that attempts to address the effects of very low nitrate concentrations on visibility results. After considering the results of the first prong of the visibility test and examining the CAMx output in more detail as described above, w e are confident that no degradation in the four western Class I areas will result from implementation of the Transport Rule trading program s in the Eastern e astern U.S. Consequently, we are proposing that the “ Transport Rule + BART

elsewhere” control scenario passes the first prong of the visibility test considering affected Class I areas located in both the Transport Rule region (first approach) and the national region (second approach). Details on the individual Class I area calculations can be found in the air quality modeling TSD. The second prong of the test assesses whether the “ Transport Rule + BART

- elsewhere” scena rio results in greater average visibility improvement at affected Class I areas compared to the “Nationwide BART” scenario. To determine if “ Transport Rule + BART

- elsewhere”***E.O. 12866 Review

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Page 46 of 74 achieved greater average visibility improvement, we compared the visibility impact s of “ Transport Rule + BART

- e lsewhere ” at the Class
I areas to visibility impacts predicted at these same areas after implementation of “Nationwide BART”. In the Transport Rule region (first approach) and the national region (second approach) , the
average visibility improvement of the “ Transport Rule + BART

elsewhere” alternative was greater than “Nationwide BART” on both the 20 percent best and 20 percent worst days. Thus, the “ Transport Rule
+ BART

- elsewhere” alternative measure passed the second prong of the test, regardless of which way affected Class I areas are identified. A summary of the results of the second prong of the test for the Transport Rule and national regions under each control scenario is presented in Table 3. **Table 3. Average Visibility Improvement in 2015 v. 2015 Base Case**  **(Deciviews)**

“ Transport Rule +

BART

- elsewhere” “ Nationwide BART ” 60 Class I Areas in the Eastern Transport Rule Modeling Domain 20 percent Worst Days 1.6 0.7 1.0 20 percent Best Days 0.3 0. 1 0.2 140 Class I Areas in the Western and Eastern Transport Rule Modeling Domains 20 percent Worst Days 0.7 0.5 20 percent Best Days 0.1 0.1

F. Proposed Amendment to the Regional Haze Rule***E.O. 12866 Review

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Page 47 of 74 Based on our finding that the “ Transport Rule + BART

- elsewhere” control scenario passes the two

- pronged test, w e are proposing to determine that the Transport Rule trading program s will provide greater progress towards Regional Haze goals than source - specific
BART . This proposed determination applies only to EGUs in the Transport Rule trading programs and only for the pollutants covered by the programs in each state. Accordingly, we propose to revise 40 CFR 51.308(e ) (3)(ii)(4) by essentially replacing the name of CAIR with the name of the Transport Rule
. We are also proposing that a state that chooses to meet the emission reduction requirements of the Transport Rule by submitting a complete SIP revision substantively identical to the provisions of the EPA trading program that is approved as meeting the requirements of §52.38 and /or §52.39 also need not require BART

- eligible EGUs in the s tate to install, operate, and maintain BART for the pollutants covered by such a tradin g program in the s tate. We are preserving the language in the regional haze regulations at 40 CFR 51.308(e)(4)that allows states to include in their SIPs geographic enhancements to the alternative program to accommodate a situation where BART is required based on reasonable attr ibution of visibili ty impairment at a Class I area. A number of the states for which we are proposing a FIP had previously failed to either submit a visibility SIP or had failed to submit a SIP that could be fully approved under the visibility***E.O. 12866 Review

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Page 48 of 74 regulations issued in 1980. See

**V. Proposed**  **Limited Disapproval of Certain States’ Regional Haze** 
**SIPs** 45 FR 80084 (December 2, 1980). The proposed regulatory text is drafted to take account of this and is not intended to change the findings that have been made in the past with respect to the relevant states’ compliance with the requirem ents of visibility regulations found at 40 CFR 51.302

- 51.307.

In this action , we are proposing a limited disapproval of the regional haze SIPs that have been submitted by Alabama, Florida, Georgia, Kentucky, Indiana, Iowa, Louisiana, Michigan, Mississippi, Missouri, North Carolina, Ohio, Pennsylvania, South Carolina and
Texas. These states, fully consistent with the EPA ’s regulations at the time, relied on CAIR requirements to satisfy the BART requirement and the requirement for a long

- term strategy sufficient to achieve the state

- adopted reasonable progress goals. We are not proposing to disapprove the reasonable progress targets for 2018 that are an element of the long

- t erm strategies for these states. We made clear in the RHR that the reasonable progress goals are not mandatory standards in the sense of there being consequences if they are not met because there are inherent uncertainties in projecting future emissions an d resulting visibility conditions. See 64 FR 35733. However, to assess whether current implementation strategies will be sufficient to meet the reasonable progress goals, the RHR requires a midcourse review by each state***E.O. 12866 Review

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Page 49 of 74 and, if necessary, a correction of the state’s regional haze plan.
See

The EPA has already proposed limited disapproval of regional haze SIPs that relied on CAIR that were submitted by Tennessee, Virginia and West Virginia. The remedy for the limited disapprovals previously proposed and those that are proposed in this action is FIPs as described in section VI. 40 CFR 52.308(g). We anticipate that since the Transport Rule will result in greater emission reductions overall than CAIR, that the need for such corrections will be unlikely. Based on the information currently before u s, we believe that t he substitution of the Transport Rule for CAIR does not w eaken any affected state’s long

- term strategy , but we will assess the midcourse review of each state’s SIP to ensure that this is so. We intend to act on the reasonable progress goals and long

- term strategy (including the proposed FIP) and other requirements of the RHR (BART determinations for non

- EGU sources, monitoring, consultation with federal land managers, etc.) for each state in a n individual notice separately from the final rule for this action. Those individual notices will constitute the final action (approval or disapproval) on those other elements of the SIP.

**VI. Proposed FIPs** 
In this action , we are p roposing partial regional haze FIPs for states for which we already have or are now proposing limited disapprovals because of the termination of CAIR. These limited FIPs***E.O. 12866 Review

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Page 50 of 74 would satisfy the BART requirement and be a part of satisfying the
req uirement for a long

- term strategy sufficient to achieve the state

adopted reasonable progress goals. The FIPs apply only to EGUs in the affected states and only to pollutants covered by the Transport Rule
program s in those states. For the reasons discussed in section V.,
t he proposed FIP s do not alter states’ reasonable progress goals or replace these goals. The proposed FIPs replace reliance on CAIR requirements with reliance on the Transport Rule as an alternative to BART for SO 2 and NO X emissions from EGUs in the following states’ regional haze SIPs: Alabama, Georgia, Indiana, Iowa, Kentucky, Michigan, Missouri, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Texas, Virginia and West Virginia . The proposed FIPs re place reliance on CAIR requirements with reliance on the Transport Rule as an alternative to BART for NO X emissions from EGUs in the following states’ regional haze SIPs: Florida , Louisiana and Mississippi. Given the requirements of the CAA to promulgate a FIP after disapproving a SIP in whole or in part ( CAA section 110(c)(1 )) , we consider it appropriate at this time to propose to issue FIPs to address the noted deficiencies in the se states’ regional haze SIPs related to the termination of CAIR and the replacement of CAIR with the Transport Rule
. A state may choos e to submit a SIP or remain subject to this FIP
. The proposed regional haze FIPs rely on the trading program s set out in the FIPs promulgated by the EPA in August***E.O. 12866 Review

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Page 51 of 74 2011 in the Transport Rule to limit the interstate transport of NO X and SO 2 . **V II**  **. Statutory and Executive Order Reviews**

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is a "significant regulatory action” because some may view it as raising novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set f orth in the Executive Order. Accordingly, the EPA submitted this action to the Office of Management and Budget (OMB) for review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011) and any changes made in response to OMB recommendations ha ve been documented in the docket for this action. A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

This action does not impose an information collection burden under the provisions of the B. Paperwork Reduction Act

Paperwork Reduction Act , 44 U.S.C. 3501 et seq . Burden is defined at 5 CFR 1320.3(b). This action does not include or require any information collection.

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemak ing requirements under the Administrative Procedure Act or any other statute unless the agency C. Regulatory Flexibility Act***E.O. 12866 Review

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Page 52 of 74 certifies that the rule will not have a significant economic impact on a substan tial number of small entities. Small entities include small businesses, small org anizations, and small governmental jurisdictions. For purposes of assessing the impacts of this rule on small entitie s, small entity is defined as: (1) A small business that is a small industrial entity as defined in the U.S. Small Business Administration (SBA) size sta ndards. ( See

After considering the economic impacts of this proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial numbe r of small

en tities. This rule will not impose any requirements on small entities. Rather, this proposed rule would allow states to avoid regulating EGUs in new ways based on the current requirements of the Transport Rule and as such does not impose any ne w requirements on small entities. We continue to be interested in the potential impacts of the proposed rule on small entities and welcome comments on issues related to such impacts. 13 CFR 121.); (2) A 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
enter prise which is independently owned and operated and is not dominant in its field.

D. Unfunded Mandates Reform Act***E.O. 12866 Review

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Page 53 of 74 This action contains no federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, 2 U.S.C. 1531

– 1538) for state, local, or tribal governments or the private
sector . The action imposes no enforceable duty on any state, local , or tribal governments or the private sector
. Therefore, this action is not subject to the requirements of sections 202 or 205 of the UMRA

. This action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significa ntly or uniq uely affect small governments. This action merely interprets the statutory requirements that apply to states in preparing their SIPs and thus apply also to FIPs.

This action does not have federalism implica tions. 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 speci fied in Executive Ord er 13132. This action does not impose any new mandates on state or local governments. E. Executive Order 13132: Federalism

Thus, Executive Order 13132 does not apply to this rule. In the spirit of Executive Order 13132 and consistent with EPA policy to promote communications between the EPA and state and local governments, the EPA is specifically soliciting comments on this proposed rule from state and local officials.***E.O. 12866 Review

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Page 54 of 74 This rule does not have tribal implications, as specified in Executive Order 13175 (6 5 FR 67249, November 9, 2000). The rule does not have a substantial direct effect on one or more Indian tribes, since there are no BART

- eligible EGU sources on tribal lands in the Transport Rule region
. In addition, the CAA does not provide f or the inclusion of any tribal areas as mandatory Class I federal areas ; thus , tribal areas are not subject to the requirements of the RHR. Furthermore, this proposed rule does not affect the relationship or distribu tion of power and responsibilities between the federal government and Indian tribes
. Thus, Executive Order 13175 does not apply to this action. The EPA specifically solicits additional comment on this proposed action from tribal officials. F. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments

The EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying to those regulatory actions that concern health or safety risks, such that the analysis require d under section G. Executive Ord er 13045: Protection of Children from Environmental Health and Safety Risks

5

– 501 of the Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it does not involve decisions on environmental health or safety risks that***E.O. 12866 Review

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Page 55 of 74 may disproportionately affect children. The EPA believes that the emissions reductions from the strategies in this rule will further improve air quality and will further improve children’s health.
H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use This action is not a “significant energy action” as defined in Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy because it does not establish requirements that directly affect the general public and the public and private sectors . Rather, this proposed rule would allow states to avoid regulating EGUs in new ways based on the current requirements of the Transport Rule , and thu s may avoid adverse effects that conceivably might result from such additional regulation of EGUs by
states.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 ("NTTAA"), Publ ic Law 104

- 113, section 12(d), (15 U.S.C. 272 note) directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are tech nical standards ( I. National Technology Transfer and Advancement Act

e.g. , materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by volunt ary consensus***E.O. 12866 Review

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Page 56 of 74 standards bodies. The NTTAA directs the EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This rulemaking does n ot involve technical standards. Therefore, the EPA is not considering the use of any voluntary consensus standards.

Executive Order 12898 (EO) (59 FR 7629, February 16, 1994) establishes f ederal executive policy on environmental justi ce. Its main provision directs f ederal 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 and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low

- income populations in the United States. J. Executive Order 12898: Feder al Actions to Address Environmental Justice in Minority Populations and Low

- Income Populations

When considering the possible environmental justice impacts of this proposed rule, it is important to distinguish the set of scenarios on which th e better

- than

- BART analysis described in this notice is based from the set of possible future situations that could come to pass based on the outcome of this rulemaking. The Transport Rule is in place and will remain in place regardless of the outcome of t his rulemaking. If we finalize the proposed rule, a regional haze SIP or FIP for an affected state will be able to satisfy the BART requirement for EGUs (for NO X only or for SO 2 and NO X , depending on***E.O. 12866 Review

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Page 57 of 74 which Transport Rule program s appl y ies in that state) me rely by formally incorpo rating the Transport Rule into the long

- term strategy of the SIP. 35

35 Such action by a state would not preclude it from also including in

the SIP source

- specific emission limits for EGUs of its choosing. If we do not adopt any rule establishing the Transport Rule as an alternative to BART, the EGUs in each affected state will still be required to participate in the c ap - and

- trade programs established by the Transport Rule . In this case the SIP or FIP would also have to apply source

- specific BART to all BART

- eligible sources except any that are found not to be subject to BART due to minimal impacts on visibility or any that the state concludes should not be further controlled based on its consideration of existing controls, cost of additional controls, remaining lifetime of the unit, other

non - air impacts and visibility impact s from controls . It is important to recognize that because of the nature of cap

- and

- trade programs, total state

- wide emissions will not be very different, if at all, if the EPA were not to make a final determination that participation in the Transport Rule trading progra m satisfied the BART requirements. Any EGUs that would be required to comply with source

- specific BART would generate tradable emission allowances that would find buyers among the other EGUs in the state. Thus, we expect that the outcome of this rule may c hange how a fixed amount of total emissions from EGUs is divided among EGUs in a given affected state. Because of the certainty of EGUs collectively m eeting the Transport Rule emission***E.O. 12866 Review

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Page 58 of 74 caps, that fixed amount will generally be substantially less than histo rical total EGU emissions in a given state.
We have concluded that it is not practicable to perform an analysis which would attempt to predict exactly which EGUs would have higher and lower emissions under the two possible outcomes. We have, however, iden tified the locations of BART

- eligible sources in Transport Rule

- affected state s to determine if there are high percentages of minority or low

- income populations living near such sources. These are the sources that conceivably could have higher emissions if we finalize the proposed rule than if we do not. An analysis of demographic data shows that the average percentage of African Americans living within a 3

- mile radius of BART

- eligible sources in Transport Rule

- affected state s is somewhat higher ( six percent) than the corresponding national average percentage. All other socio

- demographic parameters evaluated are within two percent of the national average percentages, or below the national average percentages. The results of the demographic analysis ar e presented in the memorandum entitled “Review of E nvironmental Justice Impacts,” July 2011, a copy of which is available in the docket ( EPA

- HQ

- OAR

2011

- 0729 ). Strictly speaking, if we were not to finalize this rule and the states (or we, through FIPs) wer e to impose source

- specific BART on these sources, other sources might increase their emissions under the cap

- and

- trading programs. Since we do not know which other***E.O. 12866 Review

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Page 59 of 74 sources might do so, we could not perform a similar demographic analysis on such other sour ces. We do know that under the Transport Rule , ozone and PM 2.5 air quality and health risks will be greatly reduced compared either to current conditions or to future conditions if there were no Transport Rule
. In the Transport Rule , the EPA estimated the distribution of
PM 2.5 mortality risks according to race, income, and educational attainment before and after implementation of the Transport Rule . In that analysis, we found that the Transport Rule market

- based regional approach to reducing emissions of SO 2 and NO X from EGUs provided the greatest PM 2.5 - related health benefits among populations: (1) most susceptible to air pollution impacts, regardless of race; (2) with lower levels of educational attainment; (3) living in counties with
among the highest number of individuals living below the poverty line. The analysis also indicates that the Transport Rule , in conjunction with the implementation of existing or proposed rules, will reduce the disparity in risk between the highest

- risk counties and the other 95 percent of counties for all races and educational levels. This analysis is presented in more detail in the R egulatory Impact Analysis f or the Transport Rule which is available in the Transport Rule docket EPA

- HQ

- OAR

- 2009

- 0491 and from the main EPA webpage for the Transport Rule www.epa.gov/airtransport The results of the Transport Rule analysis suggest that regional reductions in PM 2.5 levels can produce significant human health .***E.O. 12866 Review

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Page 60 of 74 benefits

— particularly among populations most susceptible and vulnerable to PM 2.5 impacts. PM 2.5 air quality improvements that would be expected under implementation of source

- specific BART may differ from the Transport Rule in terms of the emission reductions required at any given source, especially since state s have the discretion to determine which BART

- eligible sources to control and the level of control that is feasible. However, the results of the Transport Rule assessment suggest that the regional Transport Rule approach provides widespread health benefits especially among populations at greatest risk. **Li st of Subjects**  **40 CFR Part 51** Administrative practice and procedure , Air pollution control , Incorporation by reference, Intergovernmental relations, Nitrogen oxides, Ozone, Particulate matter, Regional ha ze, Reporting and recordkeeping requirements, Sulfur dioxide.***E.O. 12866 Review

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Page 61 of 74 **Page 59 of 7 2**  **- Regional Haze:**  **Revisions to Provisions Governing Alternative**  **s to Source**  **- Specific Best Available Retrofit Technology**  **(BART) Determinations , Limited SIP Disapprovals,**  **and Federal**  **Implementation Plan s** 

**40 CFR Part 52** Administrative practice and procedure , Air pollution control , Incorporation by reference, Intergovernmental relations, Nitrogen oxides, Ozone, Particulate matter, Regional haze, Reporting and recordkeeping requirements, Sulfur dioxide.

___________________________________ Dated:

___________________________________ Lisa P. Jackson, Administrator
.***E.O. 12866 Review

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Page 62 of 74 For the reasons set forth in the preamble, part 51 of chapter I of title 40 of the Code of Federal Regulations is proposed to be amended as follows: **PART 51 -**  **[AMENDED]** 1. The authority citation for part 51 continues to read as follows:

**Authority:** 23 U.S.C. 101; 42 U.S.C. 7401

- 7671q 2. Section 51.308 is amended by revisi ng paragraph (e)(3)(ii)(4) to read as follows: § **51. 308**  **Regional haze program requirements**

********

(4) A State subject to a trading program established in accordance with §52.38 or §52.39 under a Transport Rule Federal Implementation Plan need not require BART

- eligible fossil fuel

- fired electric steam generating plants in the State to install, operate, and maintain BART for the pollutant covered by such trading program in the State. A State that chooses to meet the emission reduction requir ements of the Transport Rule by submitting a SIP revision that establishes a trading program and is approved as meeting the requirements of §52.38 or §52.39 also need not require BART

- eligible fossil fuel

- fired electric steam generating plants in the State to install, operate, and maintain BART for the pollutant covered by such trading program in the State. A State may adopt provisions, consistent with the requirements applicable to the State for a trading program***E.O. 12866 Review

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Page 63 of 74 established in accordance with §52.38 or §5 2.39 under the Transport Rule Federal Implementation Plan or established under a SIP revision that is approved as meeting the requirements of §52.38 or §52.39, for a geographic enhancement to the program to address the requirement under §51.302(c) related to BART for reasonably attributable impairment from the pollutant covered by such trading program in that
State. For the reasons set forth in the preamble, part 52 of chapter I of title 40 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 **Subpart B -**  **Alabama** .

2. Section 52.61 is amended by revising paragraph (a) and adding new paragraphs (c) and (d) to read as follows: **§52.61 Visibility protection.** 

(a) The requirements of section 169A of the Clean Air Act are not met because the plan does not include approvable measures for meeting the requirements of 40 CFR 51.302, 51.308(d)(3) , and 51.308(e) for protection of visibility in mandatory Class I Federal areas.

*****

(c) Best Available Retrofit Technology for NO X . The requirements of 40 CFR 51.308(e) with respect to emissions of NO X are satisfied by §52.54 for the sources subject to those requirements.***E.O. 12866 Review

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Page 64 of 74 (d) Best Available Retrofit Technology for SO 2 . The requirements of 40 CFR 51.308(e) with respect to emissions of SO 2 are satisfied by §52.55 for the sources subject to those requirements. **Subpart K -**  **Florida**

3. Section 52.534 is amended by revising paragraph (a) and adding new paragraph (c) as follows: **§52.534 Visibility p rotection.** 

(a) The requirements of section 169A of the Clean Air Act are not met because the plan does not include approvable measures for meeting the requirements of 40 CFR 51.305, 51.307, 51.308(d)(3) , and 51.308(e) for protection of visibility in mandatory Class I Federal

areas.

*****

(c) Best Available Retrofit Technology for NO X . The requirements of 40 CFR 51.308(e) with respect to emission s of NO X are satisfied by §52.540 for the sources subject to those requirements. **Subpart L -**  **Georgia**

4. Section 52.580 is added to read as follows: **§52. 580 Visibility p**  **rotection.**

(a) The requirements of section 169A of the Clean Air Act are not
met because the plan does not include approvable measures for meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) for protection of visibility in mandatory Class I Federal areas.***E.O. 12866 Review

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Page 65 of 74 (b) Best Available Retrofit Technology for NO X . The requirements of 40 CFR 51.308(e) with respect to emissions of NO X are satisfied by §52.584 with respect to emission s of NO X for the sources subject to those requirements.

(c) Best Available Retrofit Technology for SO 2 . The requirements of 40 CFR 51.308(e) with respect to emissions of SO 2 are satisfied by §52.585 for the sources subject to those requirements. **Subpart P -**  **Indiana**

5 . Section 52.791 is added to read as follows: **§52. 791 Visibility p**  **rotection.**

a) The requirements of section 169A of the Clean Air Act are not met because the plan does not include approvable measures for meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) for protection of visibility in mandatory Class I Federal areas.

(b) Best Available Retrofit Technology for NO X . The requirements of 40 CFR 51.308(e) with respect to emissions of NO X are satisfied by §52.789 for the sources subject to those requirements.

(c) Best Available Retrofit Technology for SO 2 . The requirements of 40 CFR 51.308(e) with respect to emissions of SO 2 are satisfied by §52.790 for the sources subject to those requirements. **Subpart Q -**  **Iowa**

6 . Section 52.8 42 is added to read as follows: **§52. 8**  **42 Visibility p**  **rotection.*****E.O. 12866 Review

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Page 66 of 74 (a) The requirements of section 169A of the Clean Air Act are not met because the plan does not include approvable measures for mee ting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) for protection of visibility in mandatory Class I Federal areas.

(b) Best Available Retrofit Technology for NO X . The requirements of 40 CFR 51.308(e) with respect to emissions of NO X are satisfied by §52.840 for the sources subject to those requirements.

(c) Best Available Retrofit Technology for SO 2 . The requirements of 40 CFR 51.308(e) with respect to emissions of SO 2 are satisfied by §52.841 for the sources subject to those requirements. **Subpart S -**  **Kentucky**

7. Section 52.936 is amended by revising paragraph (a) and adding new paragraphs (c) and (d) to read as follows: **§52. 936 Visibility p**  **rotection.**

(a) The requirements of section 169A of the Clean Air Act are not met because the plan does not include approvable measures for meeting the requirements of 40 CFR 51.307(b)and (c), 51.308(d)(3) , and 51.308(e) for protection of visibility in mandatory Class I Federal

areas.

*****

(c) Best Available Retrofit Technology for NO X . The requirements of 40 CFR 51.308(e) with respect to emissions of NO X are satisfied by §52.940 for the sources subject to those requirements.***E.O. 12866 Review

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Page 67 of 74 (d) Best Available Retrofit Technology for SO 2 . The requirements of 40 CFR 51.308(e) with respect to emissions of SO 2 are satisfied by §52.941 for the sources subject to those requirements. **Subpart T -**  **Louisiana**

8 . Section 52.985 is added to read as follows: **§52. 985 Visibility p**  **rotection.**

(a) The requirements of section 169A of the Clean Air Act are not met because the plan does not include approvable measures for meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) for protection of visibility in mandatory Class I Federal areas.

(b) Best Available Retrofit Technology for NO X . The requirements of 40 CFR 51.308(e) with respect to emissions of NO X are satisfied by §52.9 84 for the sources subject to those requirements. **Subpart X -**  **Michigan**

9 . Section 52.1183 is amended by revising paragraph (a) and adding new paragraphs (d) and (e) to read as follows: **§52. 1183 Visibility p**  **rotection.**

(a) The requirements of section 169A of the Clean Air Act are not met because the plan does not include appro vable measures for meeting the requirements of 40 CFR 51.302, 51.305 , 51.307, 51.308(d)(3) , and 51.308(e) for protection of visibility in mandatory Class I Federal

areas.

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Page 68 of 74 (d) Best Available Retrofit Technology for NO X . The requirements of 40 CFR 51.308(e) with respect to emissions of NO X are satisfied by §52.1186 for the sources subject to those requirements.

(e) Best Available Retrofit Technology for SO 2 . The requirements of 40 CFR 51.308(e) with respect to emissions of SO 2 are satisfied by §52.1187 for the sources subject to those requirements
. **Subpart Z -**  **Mississippi**

1 0 . Section 52.1279 is added to read as follows: **§52. 1279 Visibility p**  **rotection.**

(a) The requirements of section 169A of the Clean Air Act are not met because the plan does not include approvable measures for meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) for protection of visibility in mandatory Class I Federal areas.

(b) Best Available Retrofit Technology for NO X . The requirements of 40 CFR 51.308(e) with respe ct to emissions of NO X are satisfied by §52.1284 for the sources subject to those requirements. **Subpart AA -**  **Missouri**

11. Section 52.1339 is amended by revising paragraph (a) and adding new paragraphs (c) and (d) to read as follows: **§52. 1339 Visibility p**  **rotection.**

(a) The requirements of section 169A of the Clean Air Act are not met because the plan does not include approvable measures for meeting the requirements of 40 CFR 51.302 , 51.308(d)(3) , and 51.308(e) for protection of visibility in mandatory Cla ss I Federal areas.***E.O. 12866 Review

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Page 69 of 74 *****

(c ) Best Available Retrofit Technology for NO X . The requirements of 40 CFR 51.308(e) with respect to emissions of NO X are satisfied by §52. 1236 for the sources subject to those requirements.

(d ) Best Available Retrofit Technology for SO 2 . The requirements of 40 CFR 51.308(e) with respect to emissions of SO 2 are satisfied by §52. 1327 for the sources subject to those requirements. **Subpart II -**  **North Carolina**

1 2 . Section 52.1779 is added to read as follows: **§52. 1779**  **Visibility p rotection.** 

(a) The requirements of section 169A of the Clean Air Act are not met because the plan does not include approvable measures for meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) for protection of visibility in mandatory Class I Federal areas.

(b) Best Available Retrofit Technology for NO X . The requirements of 40 CFR 51.308(e) with respect to emissions of NO X are satisfied by §52.1784 for the sources subject to those requirements.

(c) Best Available Retrofit Technology for SO 2 . The requirements of 40 CFR 51.308(e) with respect to emissions of SO 2 are satisfied by §52.1785 for the sources subject to those requirements. **Subpart KK -**  **Ohio**

1 3 . Section 52.1886 is added to read as follows: **§52. 1886 Visibility p**  **rotection.*****E.O. 12866 Review

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Page 70 of 74 (a) The requirements of section 169A of the Clean Air Act are not met because the plan does not include approvable measures for meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) for protection of visibility in mandatory Class I Federal areas.

(b) Best Available Retrofit Technology for NO X . The requirements of 40 CFR 51.308(e) with respect to emissions of NO X are satisfied by §52.1882 for the sources subject to those requirements.

(c) Best Available Retrofit Technology for SO 2 . The requirements of 40 CFR 51.308(e) with respect to emissions of SO 2 are satisfied by §52.1883 for the sources subject to those requirements. **Subpart NN -**  **Pennsylvania**

1 4 . Section 52.2042 is added to read as follows: **§52. 2042 Visibility p**  **rotection.**

(a) The requirements of section 169A of the Clean Air Act are not met because the plan does not include approvable measures for meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) for protection of visibility in mandatory Class I Federal areas.

(b) Best Available Retro fit Technology for NO X . The requirements of 40 CFR 51.308(e) with respect to emissions of NO X are satisfied by §52.2040 for the sources subject to those requirements.

(c) Best Available Retrofit Technology for SO 2 . The requirements of 40 CFR 51.308(e) with respect to emissions of SO 2 are satisfied by §52.2041 for the sources subject to those requirements. **Subpart PP -**  **South Carolina*****E.O. 12866 Review

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Page 71 of 74 1 5 . Section 52.2132 is amended by revising paragraph (a) and adding new paragraphs (d) and (e) to read as follows: **§52. 213**  **2 Visibility p rotection.** 

(a) The requirements of section 169A of the Clean Air Act are not met because the plan does not include approvable measures for meeting the requirements of 40 CFR 51.302 , 51.305, 51.308(d)(3) , and 51.308(e) for protection of visibility in mandatory Class I Federal

areas.

*****

(d) Best Available Retrofit Technology for NO X . The requirements of 40 CFR 51.308(e) with respect to emissions of NO X are satisfied by §52.2140 for the sources subject to those requirements.

(e) Best Available Retrofit Technology for SO 2 . The requirements of 40 CFR 51.308(e) with respect to emissions of SO 2 are satisfied by §52. 2141 for the sources subject to those requirements. **Subpart RR -**  **Tennessee**

1 6 . Section 52.223 4 is added to read as follows: **§52. 223**  **4 Visibility p**  **rotection.**

(a) The requirements of section 169A of the Clean Air Act are not met because the plan does not include approvable measures for meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) for protection of visibility in mandatory Class I Federal areas.***E.O. 12866 Review

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Page 72 of 74 (b) Best Available Retrofit Technology for NO X . The requirements of 40 CFR 51.308(e) with respect to emissions of NO X are satisfied by §52.2240 for the sources subject to those requirements.

(c) Best Available Retrofit Technology for SO 2 . The requirements of 40 CFR 51.308(e) with respect to emissions of SO 2 are satisfied by §52.2241 for the sources subject to those requirements. **Subpart SS -**  **Texas**

1 7 . Section 52.2304 is amended by revising paragraph (a) and adding new paragraphs (c) and (d) to read as follows: **§52. 2304 Visibility p**  **rotection.**

(a) The requirements of section 169A of the Clean Air Act are not met because the plan does not include appro vable measures for meeting the requirements of 40 CFR 51.30 5, 51.308(d)(3) , and 51.308(e) for protection of visibility in mandatory Class I Federal areas.

*****

(c) Best Available Retrofit Technology for NO X . The requirements of 40 CFR 51.308(e) with respect to emissions of NO X are satisfied by §52.2283 for the sources subject to those requirements.

(d) Best Available Retrofit Technology for SO 2 . The requirements of 40 CFR 51.308(e) with respect to emissions of SO 2 are satisfied by §52.2284 for the so urces subject to those requirements. **Subpart VV -**  **Virginia**

1 8 . Section 52.2452 is amended by revising paragraph (a) and adding new paragraphs (d) and (e) to read as follows:***E.O. 12866 Review

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Page 73 of 74 **§52. 2452 Visibility p**  **rotection.**

(a) The requirements of section 169A of the Clean Air Act are not met because the plan does not include approvable measures for meeting the requirements of 40 CFR 51.302, 51.305, 51.308(d)(3) , and 51.308(e) for protection of visibility in mandatory Class I Fed eral

areas.

*****

(d) Best Available Retrofit Technology for NO X . The requirements of 40 CFR 51.308(e) with respect to emissions of NO X are satisfied by §52.2440) for the sources subject to those requirements.

(e) Best Available Retrofit Technology for SO 2 . The requirements of 40 CFR 51.308(e) with respect to emissions of SO 2 are satisfied by §52.2441 for the sources subject to those requirements. **Subpart XX -**  **West Virginia**

1 9 . Section 52.2533 is amended by revising paragraph (a) and adding new paragraphs (d) and (e) to read as follows: **§52. 2533 Visibility p**  **rotection.**

(a) The requirements of section 169A of the Clean Air Act are not met because the plan does not include appro vable measures for meeting the requirements of 40 CFR 51.302, 51.305, 51.307, 51.308(d)(3) , and 51.308(e) for protection of visibility in mandatory Class I Federal

areas.

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Page 74 of 74 (d) Best Available Retrofit Technology for NO X . The requirements of 40 CFR 51. 308(e) with respect to emissions of NO X are satisfied by §52.2540 for the sources subject to those requirements.

(e) Best Available Retrofit Technology for SO 2 . The requirements of 40 CFR 51.308(e) with respect to emissions of SO 2 are satisfied by §52.2541 for the sources subject to those requirements.