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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 Alternatives to Source-Specific Best Available 

Retrofit Technology (BART) Determinations, Limited SIP Disapprovals, and Federal 

Implementation Plans

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule. 

SUMMARY: The EPA is finalizing revisions to our rules pertaining to the regional haze program. In 

this action, the EPA is finalizing our finding that the trading programs in the Transport Rule, also known 

as the Cross-State Air Pollution Rule (CSAPR), achieve greater 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 finalizing a limited disapproval of the regional haze State Implementation Plans (SIPs) that have 

been submitted by Alabama, Georgia, Indiana, Iowa, Louisiana, Michigan, Mississippi, Missouri, North 

Carolina, Ohio, Pennsylvania, South Carolina, Virginia and Texas because these states relied on 

requirements of the Clean Air Interstate Rule (CAIR) to satisfy certain regional haze requirements. To 

address deficiencies in CAIR-dependent regional haze SIPs, in this action the EPA is promulgating 

Federal Implementation Plans (FIPs) to replace reliance on CAIR with reliance on the Transport Rule in 

regional haze SIPs of Georgia, Indiana, Iowa, Kentucky, Michigan, Missouri, Ohio, Pennsylvania, South 

Carolina, Tennessee, Texas, Virginia and West Virginia.

DATES: This final rule is effective on [INSERT DATE 60 DAYS AFTER PUBLICATION IN THE 

FEDERAL REGISTER]. 

ADDRESSES:
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Docket. The EPA has established a docket for this action under docket ID No. EPA-HQ-OAR-2011-

0729. 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., confidential business information or other 

information whose disclosure is restricted by statute. Certain other material, such as copyrighted 

material, will be publicly available only in hard copy. Publicly available docket materials are available 

either electronically in 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 

Friday, 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. 

FOR FURTHER INFORMATION CONTACT: Ms. Martha Keating, Office of Air Quality Planning 

and Standards, Air Quality Policy Division, Mail code C539-04, 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

A. Does this action apply to me

This action affects state and local air pollution control agencies located within the geographic 

areas covered by the Transport Rule

?

1 and whose regional haze SIP relied on CAIR2 as an alternative to 

BART for sulfur dioxide (SO2) and/or nitrogen oxide (NOX

 

1 See Federal Implementation Plans to Reduce Interstate Transport of Fine Particulate Matter and 

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

) for electric generating units (EGUs) 

subject to BART requirements, or whose regional haze SIP relied on the Transport Rule. Some of the 

EGUs located in such geographic areas may also be affected by this action in that affected states now 

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 NOx SIP Call; Final Rule, 70 FR 25162 (May 

12, 2005).
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have the option of not requiring such EGUs to meet source-specific BART emission limits to which 

these EGUs otherwise could be subject. 

These sources are in the following groups: 

Industry group SIC NAICS a b

Electric Services 492 221111, 221112, 221113, 221119, 221121, 

221122

a Standard Industrial Classification.

b North American Industry Classification System.

B. Where can I get a copy of this document and other related information

In addition to being available in the docket, an electronic copy of this notice will be posted at 

?

http://www.epa.gov/ttn/oarpg/new.html

C. 

under “Recent Actions.”

How is this notice organized

The information presented in this notice is organized as follows:

? 

I. General Information

A. Does this action apply to me?

B. Where can I get a copy of this document and other related information?

C. How is this notice organized? 

II. Background and General Legal Considerations For the EPA’s Final Acton

A. Background

1. Criteria for Developing an Alternative Program to BART 

2. What is the relationship between BART and CAIR?

3. Remand of CAIR and Implications for State Regional Haze Implementation Plans

4. The Transport Rule and Regional Haze SIPs

B. Summary of the EPA Responses to General and Legal Issues Raised in Public Comments

1. Authority for an Alternative Trading Program 

2. Effect of the Transport Rule Stay

3. Rationale for Disapproval of SIPs Based on CAIR

4. The Relationship between a Better-than-BART Determination and Reasonable Progress

III. Technical Analysis Supporting the Determination of the Transport Rule as an Alternative to BART

A. What analysis did we rely on for our proposed determination?

1. Application of the Two-Pronged Test

2. Identification of Affected Class I Areas

3. Control Scenarios Examined

4. Emission Projections

5. Air Quality Modeling Results

B. Summary of the EPA Responses to Comments on the Technical Analysis
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1. Comments Related to the Emissions Scenarios Used in the EPA’s Analysis

2. Identification of Affected Class I Areas

3. Ozone Season-only Transport Rule States

4. Comments Asserting that the EPA Needs to Re-do the Analysis

IV. Reasonably Attributable Visibility Impairment (RAVI)

A. What did the EPA propose?

B. Public Comments related to RAVI

C. Final Action on RAVI

V. Limited Disapproval of Certain States’ Regional Haze SIPs

A. What did the EPA propose?

B. Public Comments Related to Limited Disapprovals

C. Final Action on Limited Disapprovals

VI. FIPs

A. What did the EPA propose?

B. Public Comments on Limited Disapprovals

C. Final Action on FIPs

VII. Regulatory Text

A. What did the EPA propose?

B. Clarification of Regulatory Text

VIII. Statutory and Executive Order

A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: 

Improving Regulation and Regulatory Review

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 Low-Income Populations

K. Congressional Review Act

IX. Statutory Authority

II. Background and General Legal Considerations for the EPA’s Final Action

A.

Section 169A(b)(2)(A) of the CAA requires states to revise their SIPs to contain such measures 

as may be necessary to make reasonable progress towards the natural visibility goal, including a 

requirement that certain categories of existing major stationary sources built between 1962 and 1977 

Background
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procure, install, and operate BART as determined by the state.3

1. Criteria for Developing an Alternative Program to BART

Under the Regional Haze Rule, states 

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 sourcespecific BART controls, states also have the flexibility to adopt an emissions trading program or other 

alternative program as long as the alternative provides greater reasonable progress towards improving 

visibility than BART. 40 CFR §51.308(e)(2). The EPA provided states with this flexibility in the 

Regional Haze Rule, adopted in 1999, and further refined the criteria for assessing whether an 

alternative program provides for greater reasonable progress in three subsequent rulemakings. 64 FR 

35714 (July 1, 1999); 70 FR 39104 (July 6, 2005); 71 FR 60612 (October 13, 2006). These criteria are

described below. 

Specific criteria for determining if an alternative measure achieves greater reasonable progress 

than source-specific BART are set out in the Regional Haze Rule at §51.308(e)(3).4 The “better-thanBART” test may be satisfied 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 

 3 The preamble to the proposed rule provides additional background on the visibility requirements of 

the Clean Air Act and the EPA’s Regional Haze Rule. 76 FR 82221-22. 

4

 The Regional Haze Rule also allows for a demonstration that an alternative program provides for 

greater reasonable progress to be based on the clear weight of evidence. 40 CFR § 51.308(e)(2)(E). We 

concluded that a more general test may be appropriate in certain circumstances, such as where, for 

example, technical or data limitations limit the ability of a state (or the EPA) to undertake a robust 

comparison using the test set out in 40 CFR § 51.308(e)(3).
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differences in visibility between BART and the alternative program for each impacted Class I area for 

the worst and best 20 percent of days.5

reasonable progress” under the alternative program if both of the following criteria are met:

The two-pronged visibility test would demonstrate “greater 

- Visibility does not decline in any Class I area6

- There is an overall improvement in visibility, determined by comparing the average differences 

between BART and the alternative over all affected Class I areas.

, and

2. What is the relationship between BART and CAIR?

In May 2005, the EPA published CAIR, which required 28 states and the District of Columbia to 

reduce emissions of SO2 and NOX that significantly contribute to, or interfere with maintenance of, the 

1997 national ambient air quality standards (NAAQS) for fine particulates and/or ozone in any 

downwind state. The CAIR established emission budgets for SO2 and NOX

As noted above, the Regional Haze Rule allows states to implement an alternative program in 

lieu of BART so long as the alternative program has been demonstrated to achieve greater reasonable 

for states that contribute 

significantly to nonattainment in downwind states and required the significantly contributing states to 

submit SIP revisions that implemented these budgets. Because such SIP revisions were already overdue, 

the EPA subsequently promulgated CAIR FIPs for the affected states establishing cap and trade 

programs for EGUs with opt-in provisions for other sources. States had the flexibility to subsequently 

adopt SIP 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 remain under CAIR FIPs. 

 5 While the Regional Haze Rule directs the state to conduct the air quality modeling study, as described 

in section III.C.2, the 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. We have now done the same for the 

Transport Rule.

6 The “decline” is relative to modeled future baseline visibility conditions in the absence of any BART 

or alternative program control requirements.
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progress toward the national visibility 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. In those revisions, we 

amended our regulations to provide that states participating in the CAIR cap-and-trade programs under 

40 CFR part 96 pursuant to an EPA-approved CAIR SIP or states that remain subject to the CAIR FIP in 

40 CFR part 97 need not require affected BART-eligible EGUs to install, operate, and maintain BART 

for emissions of SO2 and NOX. 40 CFR 51.308(e)(4). In Utility Air Regulatory Group v. EPA

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, relied on the CAIR cap-and-trade programs as an 

alternative to BART for EGU emissions of SO

, 471 F.3d 

1333 (DC Cir. 2006), the court upheld our determination that states could rely on CAIR as an alternative 

program to BART for EGUs in the CAIR-affected states.

2 and NOX

3. Remand of CAIR and Implications for State Regional Haze Implementation Plans

in designing their regional haze 

implementation plans. These states also relied on CAIR as an element of a long-term strategy for 

achieving their reasonable progress goals. 

Following our determination in 2005 that CAIR was “better-than-BART,” the D.C. Circuit Court 

ruled on several petitions for review 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.7 The court 

thereby left CAIR and CAIR SIPs and FIPs in place in order to “temporarily preserve the environmental 

values covered 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, 2011.8

 7

 See North Carolina v. EPA, 531 F.3d 896; modified by 550 F.3d 1176 (D.C. Cir. 2008).

The EPA expects 

that the requirements of the Transport Rule, which are currently stayed pending the outcome of 

litigation, will take effect in advance of the 2018 deadline for any BART alternative program. In the 

8

 See Federal Implementation Plans to Reduce Interstate Transport of Fine Particulate Matter and 

Ozone. 76 FR 48208.
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interim period before the Transport Rule takes effect, the CAIR and the CAIR FIPs were to remain in 

place to address emissions through the end of the 2011 control periods. The D.C. Circuit, however, on 

December 30, 2011, stayed the Transport Rule and instructed the EPA to continue to administer CAIR 

pending the outcome of the court’s decision on numerous petitions for review challenging the Transport 

Rule. EME Homer City v. EPA

Many states relied on CAIR as an alternative to BART for SO

, No. 11-1302 (Order).

2 and NOX

In summary, many of the states in the CAIR-affected region have based a number of required 

elements of their regional haze programs on CAIR. However, as CAIR has been remanded and only 

remains in place temporarily, we cannot fully approve these regional haze SIP revisions that have relied 

on the now-temporary reductions from CAIR. Although CAIR is currently in place, as a result of the 

Order by the 

for subject EGUs, as 

allowed under the then-current BART provisions at 40 CFR 51.308(e)(4). These states also relied on the 

improvement in visibility expected to result from controls planned or already installed on sources in 

order to meet CAIR provisions in developing their long-term visibility strategy. In addition, many states 

relied upon their own CAIR SIPs or the CAIR FIPs for their states as legal justification for these planned 

controls and consequently did not include separate enforceable measures in their long-term strategies (a 

required element of a regional haze SIP submission) to ensure these EGU reductions. These states also 

submitted 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. 

EME Homer Generation

4. The Transport Rule and Regional Haze SIPs

court, this does not affect the court’s ruling remanding CAIR to 

the EPA.

The Transport Rule will sunset CAIR and the CAIR FIPs once the Transport Rule comes into 

effect. The Transport Rule requires 28 states in the eastern half of the United States to significantly 

improve air quality by reducing EGU SO2 and NOX emissions that cross state lines and contribute to 
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ground-level ozone and/or fine particle pollution in other states. The rule allows allowance trading 

among covered sources, utilizing an allowance market infrastructure modeled after existing allowance 

trading programs. The Transport Rule allows sources to trade emissions allowances with other sources 

within the same program (e.g., ozone season NOX

In our proposal, we described a technical analysis that we conducted to determine whether 

compliance with the Transport Rule would satisfy regional haze BART-related requirements. This 

technical analysis is the basis of this final action in which we are finalizing our determination that the 

Transport Rule achieves greater reasonable progress towards the national goal of achieving natural 

visibility conditions than source-specific BART.

) in the same or different states, while firmly 

constraining any emissions shifting that may occur by establishing an emission ceiling for each state. 

The EPA has based its determination that the Transport Rule will achieve greater reasonable 

progress than BART on the approach used by the EPA in evaluating whether a similar program, CAIR, 

would satisfy the regional haze BART-related requirements. As noted above, the Regional Haze Rule, 

promulgated in 1999, provides states with the flexibility to adopt an emissions trading program rather 

than requiring source-by-source BART. 40 CFR § 51.308(e)(2). Some commenters supported our 

general approach and agreed that the Transport Rule will provide for greater reasonable progress. Other 

commenters, however, disagreed with our conclusion that the Transport Rule can be used as an 

alternative to BART. These commenters argued that we lack authority to make such a determination and 

that we cannot rely on the Transport Rule because of the current stay of that rule, and that the Transport 

Rule does not meet the necessary regulatory requirements for an alternative program in lieu of BART.

One commenter argued that we could not conclude that the Transport Rule provides for greater 

reasonable progress without considering each state’s reasonable progress goals. Other commenters took 

the position that we should fully approve the regional haze SIPs that relied on CAIR to satisfy certain 

B. Summary of the EPA Response to General and Legal Issues Raised in Public Comments
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regional haze requirements and that our proposed limited disapproval of the regional haze SIPs was 

unnecessary. 

1. Authority for an Alternative Trading Program

The EPA’s authority to establish non-BART alternatives in the regional haze program and the 

specific methodology outlined above for assessing such alternatives have been previously challenged 

and upheld by the D.C. Circuit. In the first case challenging the provisions in the Regional Haze Rule 

allowing for states to adopt alternative programs in lieu of BART, the court affirmed our interpretation 

of CAA section 169A(b)(2) as allowing for alternatives 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, 471 F.3d 1333 (D.C. Cir. 2006) (“UARG

Notwithstanding the decisions of the D.C. Circuit, several commenters argued that the plain 

language of the CAA precludes the EPA from allowing an alternative to BART. In their comments, 

these groups claimed that there is no statutory authority to exempt a source from BART, except as

provided for in CAA §169A(c). Under the interpretation of the CAA urged by these commenters, BART 

must be required at each BART source that causes or contributes to visibility impairment at any Class I 

area. The commenters point to recent decisions post-dating 

”), the court specifically upheld 

our determination that states could rely on CAIR as an alternative program to BART for EGUs in the 

CAIR-affected states. 

CEED and UARG

The commenter’s arguments that the plain language of the CAA precludes reliance on the 

Transport Rule to satisfy the BART requirements were raised in 

in support of their 

arguments.

UARG v. EPA and rejected by the D.C. 

Circuit when it denied the petitions for review of the EPA’s determination that CAIR provided for 
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greater reasonable progress than BART. While the commenter argues that the court’s decision “has been 

undermined by subsequent D.C. Circuit decisions,” we disagree. The decisions cited by the commenter, 

North Carolina v. EPA, 531 F.3d 896, 906-08 (D.C. Circ. 2008) and NRDC v. EPA, 571 F.3d 1245, 

1255-58 (D.C. Cir. 2009) address the requirements of sections 110(a)(2)(D)(i)(I) and 172(c)(1), 

respectively. Given the differences between the language of these statutory provisions and that of 

section 169A(b)(2), the courts’ interpretation of these other provisions of the CAA do not undermine the 

two previous rulings of the D.C. Circuit interpreting the visibility provisions of the Act. Similarly, the 

Supreme Court’s conclusions in Massachusetts v. EPA, 549 U.S. 497, 528-29 (2007) regarding the 

meanings of “each” and “any” do not conflict with or impact the EPA’s reading of section 169A(b)(2) of 

the CAA or the D.C. Circuit’s conclusion that the agency’s interpretation of the statute is a reasonable 

one. As the CEED court explained, the EPA interprets this provision to mean that “each SIP’s ‘emission 

limits, schedules of compliance, and other measures’ must ‘include’ BART only ‘as may be necessary to 

make reasonable progress toward’ national visibility goals.” 398 F.3d 653, quoting 42 U.S.C. § 

7491(b)(2); see also Central Arizona Water Conservation District v. EPA, 990 F.2d 1531, 1543 (9th

This commenter also argues that the EPA can exempt sources from BART only if the EPA 

complies with the requirements of CAA § 169A(c)(1). This provision of the CAA allows the EPA to 

exempt a source from the BART requirements, by rule, upon a determination that the source is not 

reasonably anticipated to cause or contribute to significant visibility impairment. As the commenters 

note, the appropriate Federal Land Manager(s) must agree with the exemption before it can go into 

effect. 

Cir. 

1993)(upholding the same interpretation of section 169A(b)(2)). We do not agree, therefore, that the 

EPA’s regulations allowing for the adoption of a trading program that provides for greater reasonable 

progress than BART in place of source-specific BART are inconsistent with the CAA.
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We do not agree that the provisions governing exemptions to BART apply to our determination 

that the Transport Rule will make greater reasonable progress than BART. Section 169A(b)(2) of the 

CAA requires each visibility SIP to contain “such emission limits, schedules of compliance and other 

measures as may be necessary to make reasonable progress toward the national goal...including...a 

requirement that [certain major stationary sources]...procure, install, and operate...[BART].” Based on 

this language, in 1999, the EPA concluded that if an alternative program can be shown to make greater 

reasonable progress toward eliminating or reducing visibility impairment, then installing BART for the 

purpose of making reasonable progress toward the national goal is no longer necessary. This 

interpretation of the visibility provisions of the CAA has been upheld three times by the courts, as noted 

above. 

We also received a comment arguing that the EPA cannot rely on the Transport Rule as an 

alternative to BART because the emission reductions do not meet the requirement of 40 CFR 

51.308(e)(2)(iv). This regulatory provision requires that “the emission reductions resulting from the 

emissions trading program ...will be surplus to those reductions resulting from measures adopted to 

meet requirements of the CAA as of the baseline date of the SIP.” 

We do not agree with the comment that the emissions reductions resulting from the Transport 

Rule must be “surplus to those measures adopted to meet requirements of the CAA as of the baseline 

date of the SIP.” We note that the requirements of 40 CFR 51.308(e)(2) are not directly applicable to 

this action, as the special provisions in the Regional Haze Rule addressing the Transport Rule are 

codified at 40 CFR 51.308(e)(4). Nonetheless, our determination that the Transport Rule will result in 

greater visibility improvement than BART is fully consistent with the requirement in 308(e)(2)(iv). In 

promulgating the Regional Haze Rule in 1999, the EPA explained that the “baseline date of the SIP” in 

this context means “the date of the emissions inventories on which the SIP relies,” 64 FR 35742, which 

is “defined as 2002 for regional haze purposes,” 70 FR 39143. Any measure adopted after 2002 is 
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accordingly “surplus” under 40 CFR 51.308(e)(2)(iv). This is consistent with the discussion in the 

preamble to the 1999 Regional Haze Rule indicating that the regional haze program “is being 

promulgated in a manner that facilitates integration of emission management strategies for regional haze 

with the implementation of programs for [the 1997 ozone and PM2.5] NAAQS.” 64 FR 35719. The EPA 

took this approach in the Regional Haze Rule to allow measures needed to attain the then new NAAQS 

to be “counted” as making “reasonable progress” toward the visibility goal. The Transport Rule was 

adopted to help areas come into attainment with and maintain the 1997 ozone and PM NAAQS, as well 

as the 2006 24-hour PM 2.5

2. Effect of the Transport Rule Stay

NAAQS. The EPA accordingly does not view the requirement in 

308(e)(2)(iv) as limiting our ability to demonstrate that the Transport Rule reductions are surplus, as 

defined in the Regional Haze Rule.

Several commenters contended that the EPA cannot rely on the Transport Rule as a BART 

alternative because implementation of the rule has been stayed. These commenters argue that an 

alternative program in place of BART must constitute a “requirement,” and be enforceable, and that as 

long as the Transport Rule is stayed, it cannot qualify as a “requirement” nor can it be enforced. These 

commenters also claim that because the rule may change if affirmed only in part, the EPA cannot find 

that the Transport Rule will make greater reasonable progress than BART. 

We do not agree that the EPA cannot rely on the Transport Rule because of the temporary stay 

imposed by the D.C. Circuit. We base this conclusion on both the structure of 40 CFR 51.308(e)(4) and 

on the long-term focus of our analysis underlying today’s rule. 

Neither our regulations in 2005 addressing CAIR, nor our regulations in this rule addressing the 

Transport Rule, require states to participate in or implement these programs or to otherwise include 

enforceable measures in their regional haze SIPs. In 2005, having determined that CAIR would provide

for greater reasonable progress toward the national goal than would BART, the EPA promulgated 
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regulations providing that a state participating in the one of the CAIR trading programs “need not 

require” EGUs to put on BART controls. Similarly, our regulations in this rule provide that a state 

subject to a Transport Rule FIP (or approved Transport Rule SIP) need not require BART controls on its 

EGUs. Accordingly, today’s regulations addressing the Transport Rule are not “requirements” that a 

state participate in the interstate transport trading programs. Similarly, a regional haze

We also note that while the Transport Rule is not currently enforceable, the analysis underlying 

our determination that the Transport Rule will provide for greater reasonable progress than BART looks 

forward to 2014. This year was selected based on the anticipated implementation of the Transport Rule, 

but any year up until 2018 would have been an acceptable basis for comparing the two programs under 

the Regional Haze Rule. 

SIP or FIP that 

relies on 308(e)(4) does not impose enforceable requirements on EGUs. However, a state may take 

advantage of this provision only if it is subject to an underlying Transport Rule FIP (or SIP approved as 

meeting the requirements of the trading program). We note that the underlying Transport Rule FIP or 

SIP does contain the applicable requirements that will ensure that the emissions reductions from the 

Transport Rule will occur. 

See

We do not agree with the comment that because the Transport Rule is subject to review by the 

D.C. Circuit, we cannot move ahead with our determination that it provides for greater reasonable 

progress than BART. We recognize, as one commenter suggests, that we may be obliged to revisit the 

regional haze plans that rely on the Transport Rule if the rule is not upheld in its entirety. However, we 

40 CFR 51.308(e)(2)(iii). We anticipate that the stay of the Transport Rule 

will be lifted and that the rule will be fully implemented prior to 2018. Given these considerations, we 

do not view the stay imposed by the D.C. Circuit pending review of the underlying rule as undermining 

our conclusion that the Transport Rule will have a greater overall positive impact on visibility than 

BART both during the period of the first long-term strategy for regional haze and going forward into the 

future.
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do not consider it appropriate to await the outcome of the D.C. Circuit’s decision on the Transport Rule 

before moving forward with the regional haze program as we believe the Transport Rule has a strong 

legal basis, and given the judicial decree requiring the EPA to meet its statutory obligations to have a 

FIP or an approved SIP meeting the Regional Haze Rule requirements in place for most states before the 

end of 2012.

3. Rationale for Disapproval of SIPs Based on CAIR

We received comments that our proposed limited disapproval of the regional haze SIPs that rely 

on CAIR and the proposed FIPs is not necessary. Commenters noted that CAIR remains in place and 

that SIPs that rely on CAIR are fully consistent with our existing regulations. One commenter suggested 

that we revise the Regional Haze Rule to allow states to rely on either CAIR or the Transport Rule to 

meet the BART requirements.

While the regional haze program is a long-term program that requires states to submit SIPs every 

10 years to assure continued reasonable progress toward natural background conditions, the BART 

requirements or alternatives to BART must be fully implemented by 2018. The required establishment 

of BART limits, or an alternative to BART, is accordingly a “one shot” deal. Although CAIR is 

currently in place as a result of the D.C. Circuit’s stay of the Transport Rule, we do not anticipate that 

CAIR will continue in effect indefinitely. As a result, our determination that CAIR provides for greater 

reasonable progress than BART is no longer valid. This is because, as a general matter, any source 

required to install BART controls must maintain the BART control equipment and meet the BART 

emission limit established in the SIP so long as the source continues to operate. See 40 CFR 51.308(e). 

As BART would result in emission reductions going forward beyond 2018, our determination that CAIR 

provides for greater reasonable progress than BART was based on the assumption that the reductions 

required by CAIR would be enforceable requirements that would also apply going forward to 2018 and 

beyond. That assumption is no longer appropriate. We are issuing a limited disapproval rather than a full 
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disapproval, however, to allow the state to rely on the emission reductions from CAIR for so long as 

CAIR is in place.

4. The Relationship between a Better-than-BART Determination and Reasonable Progress

Each state with a Class I area is required to set goals for each Class I area that provide for 

reasonable progress towards improving visibility. There must be one goal for the 20 percent best 

visibility days and one goal for the 20 percent worst visibility days. States take into account a number of 

factors in establishing reasonable progress targets, including in some cases an analysis of the measures 

needed to achieve the “uniform rate of progress” 9

One commenter argued that our determination that the Transport Rule provides for greater 

reasonable progress than BART is improper because it considers BART in isolation, without reference 

to the consideration of the reasonable progress goals in the regional haze plans. The commenter 

contends that BART is critical to the state’s ability to reach its reasonable progress goals and that the 

EPA should have considered the impact of our proposed determination in instances where the states 

relied on emissions reductions consistent with presumptive BART to meet reasonable progress goals.

 over the 10-year period of the SIP and a 

determination of the reasonableness of such measures. 40 CFR 51.308(d)(1). The Regional Haze Rule

does not mandate specific milestones or rates of progress, but instead calls for states to establish goals 

that provide for “reasonable progress” toward achieving natural background conditions.

The EPA disagrees with the argument that we cannot compare the visibility improvements from 

Transport Rule against those from BART without considering the reasonable progress goals of each 

affected regional haze SIP. BART is one measure for addressing visibility impairment, but it is not “the 

mandatory vehicle of choice.” CEED, 398 F.3d at 660. As such, BART is not a required element of the 

regional haze SIPs so long as an appropriate alternative achieves greater reasonable progress.

 

9

 For each Class I area, the uniform rate of progress is based on the calculation of the steady rate of 

improvement in visibility needed to achieve natural background conditions by 2064.
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The commenter’s suggestion that reasonable progress goals are defined and that each regional 

haze SIP must accordingly ensure a certain rate of progress toward natural visibility also 

mischaracterizes the regional haze program. As noted above, the reasonable progress goals for each 

Class I area are set by the states. States, both in and out of the CAIR region, set their reasonable progress 

goals based, in part, on anticipated reductions in emissions due to CAIR. In setting reasonable progress 

goals, these states estimated future emissions in 2018 from a number of sources and source categories, 

including emissions from EGUs. For sources in the CAIR region, states relied on emissions reductions 

from CAIR - not BART - to estimate future EGU emissions. As a result, source-specific BART across 

the CAIR region is clearly not critical to the states’ ability to meet the goals in their SIPs. For the small 

handful of states that were not subject to CAIR but are now subject to the Transport Rule, today’s 

determination that the Transport Rule provides for greater reasonable progress than BART gives those 

states the opportunity to consider revising their regional haze SIPs to substitute participation in the 

Transport Rule for source-specific BART. Whether such a revision meets the requirements of the 

Regional Haze Rule, including the requirement that a plan include such measures as may be necessary to 

make reasonable progress toward the national goal, would be addressed in a notice and comment 

rulemaking that would provide an opportunity for review of the adequacy of such an approach. We 

disagree with the commenters statement, however, that source-specific BART as a general matter is 

necessary to ensure reasonable progress. 

III. Technical Analysis Supporting the Determination of the Transport Rule as an Alternative to 

BART

A.

The technical analysis that the EPA relied on for our proposed and now final determination that

the Transport Rule is better than BART is described in detail in the preamble of the proposed rule and in 

What analysis did we rely on for our proposed determination?
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the Technical Support Document (TSD).

10

1. Application of the Two-Pronged Test

To provide context for the summary of the public comments 

and our responses to them, we are providing a summary of the technical analysis in the following 

sections.

The two-pronged test for determining if an alternative program achieves greater reasonable 

progress than source-specific BART is set out in the Regional Haze Rule at 40 CFR 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. Under the first prong, 

visibility must not decline at any affected Class I area on either the best 20 percent 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 

produces greater average improvement than source-specific BART over all affected Class I areas.

Together, these tests ensure that the alternative program provides for greater reasonable progress than 

would source-specific BART. 

In applying the two-pronged test to the Transport Rule control scenario and the source-specific 

BART control scenario, we used a future (2014) projected baseline. The 2014 baseline does not include 

the Transport Rule, BART, or CAIR control programs.

2. Identification of Affected Class I Areas 

As described above, under the second prong of the test, the visibility comparison is over all 

“affected” Class I areas. The EPA added the term “affected” to clarify that visibility need not be 

evaluated nationwide. 71 FR 60620. We considered two approaches to identify the Class I areas 

“affected” by the Transport Rule as an alternative control program to source-specific BART. First, we 

 10 Technical Support Document for Demonstration of the Transport Rule as a BART Alternative, 

Docket EPA-HQ-OAR-2011-0729.
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identified 140 Class I areas represented by 96 Interagency Monitoring of Protected Visual Environments

(IMPROVE) monitors in the 48 contiguous states with sufficiently complete monitoring data available to 

support the analysis. In the first “eastern” approach, we identified as affected Class I areas the 60 Class I 

areas contained in the eastern portion of the Transport Rule modeling domain. 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 (including the 60 contained within the Transport Rule region). 

Consideration of this national region accounted for the possibility that the Transport Rule might have the 

effect of increasing EGU emissions in the most western portion of the United States due to shifts in 

electricity generation or other market effects. We noted that the “eastern” Transport Rule modeling grid 

used a horizontal resolution of 12 km (all 60 “eastern” Class I areas were contained within the 12 km 

grid). The modeling grid for areas outside of the eastern Transport Rule region used a more coarse 

horizontal resolution of 36 km.

We requested comment on whether the “affected Class I areas” should be considered 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 noted that given the modeling results, the choice 

between the 60 Class I areas or the 140 Class I areas did not affect our proposed conclusion that both 

prongs of the two-pronged test are met.

3. Control Scenarios Examined

The Transport Rule requires 28 states in the eastern half of the United States to reduce EGU SO2

and NOX emissions that cross state lines and contribute to ground-level ozone and fine particle pollution 

in other states. BART, on the other hand, is applicable 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, we examined two relevant control scenarios. The first control scenario examined 
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SO2 and NOX emissions from all EGUs nationwide after the application of BART controls to all BARTeligible EGUs (“Nationwide BART”). In the second scenario, EGU SO2 and NOX

For both the “Nationwide BART” scenario and the “Transport Rule + BART-elsewhere” 

scenario, we modeled the presumptive EGU BART limits for SO

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 + BARTelsewhere”). For the first prong of the test, the “Transport Rule + BART-elsewhere” scenario was 

compared to the 2014 future year base case. The comparison to the 2014 future year “Base Case” 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. 

2 and NOX emission rates as specified 

in the BART Guidelines (Guidelines for BART Determinations Under the Regional Haze Rule, 70 FR 

39104, July 6, 2005), unless an actual emission rate at a given unit with existing controls is lower. In the 

latter case, we modeled the lower emission rates. Our analysis assumed that all BART-eligible EGUs 

were actually subject to BART requirements and that presumptive BART limits would be applied to 100 

megawatt (MW) EGUs for SO2 and 25 MW EGUs for NOX, 

There are five states that are subject to the Transport Rule requirements during the ozone season 

only (Oklahoma, Arkansas, Louisiana, Mississippi and Florida). For these states, in the “Transport Rule 

+ BART-elsewhere” scenario post-combustion NO

regardless of the magnitude of their annual 

total emissions. In our analysis, in both scenarios we constrained certain EGUs 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. Where we had evidence of more stringent emission limits than 

the presumptive BART limits, we used them. These units and their emission limits are detailed in the 

TSD.

X controls were assumed to operate outside of the 

ozone season only when required to do so for a reason other than Transport Rule requirements, e.g., a 
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permit condition or a provision of a consent decree. In the “National BART” scenario, BART NOX

4. Emission Projections

controls were assumed to operate year-round.

To estimate emissions expected from the scenarios described in section IV, we used the 

Integrated Planning Model (IPM). 11 The IPM was used in this case to evaluate the emissions impacts of 

the described scenarios limiting the emissions of SO2 and NOX from EGUs. The IPM projections of 

annual NOX and SO2 emissions from EGUs for the “Transport Rule + BART-elsewhere” control 

scenario were used as inputs to the air quality model to assess the visibility impacts of the emission 

changes. The IPM projections were based on the state budgets prescribed in the final Transport Rule 

published on August 8, 2011, and the supplemental proposal published on July 11, 2011.

12 We noted 

that on October 14, 2011, the EPA issued a proposed notice that would increase NOX and SO2

5. Air Quality Modeling Results

budgets 

for certain states in accordance with revisions to certain unit-level input data. 76 FR 63860. We 

requested comment on the potential effect of the proposed increases to state budgets. We noted that even 

with the proposed increases to certain state budgets, we believed that the two-pronged test is satisfied 

given the still-substantial reductions in emissions under the Transport Rule. 

To assess the air quality metrics that are part of the two–pronged test, we used the IPM emission 

projections as inputs, to an air quality model to determine the impact of “Transport Rule + BARTelsewhere” 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 analyses to project visibility improvement are described in 

 11 Extensive documentation of the IPM platform may be found at 

http://www.epa.gov/airmarkets/progsregs/epa-ipm/transport.html.

12 See Federal Implementation Plans to Reduce Interstate Transport of Fine Particulate Matter and 

Ozone 76 FR 48208 (August 8, 2011). The ozone season state budgets for the states affected by the

supplemental proposal published on July 11, 2001 (76 FR 40662) are included in the “Transport Rule + 

BART-elsewhere” control scenario.
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more detail in the TSD for the Transport Rule.

13

We proposed that the “Transport Rule + BART-elsewhere” control scenario passed the first 

prong of the visibility test considering affected Class I areas located in both the “eastern” region of 60 

Class I areas) and the “national” region of 140 Class I areas We also proposed our determination that 

the “Transport Rule + BART-elsewhere” alternative measure passed the second prong of the test that 

assesses whether the alternative results in greater average visibility improvement at affected Class I 

areas compared to the “Nationwide BART” scenario. The “Transport Rule + BART-elsewhere” 

alternative passed the second prong of the test, regardless of which way affected Class I areas are 

identified.

The visibility projections for each Class I area are 

presented in the TSD for our proposed action. 

B.

Many comments supported the EPA’s technical analysis and our determination that the Transport 

Rule satisfies the requirements for an alternative to source-specific BART. Other commenters raised 

objections to the EPA’s determination. Some of these were general legal objections related to the EPA’s 

legal authority for its action and its interpretation of authorizing regulations and statutes. The EPA’s 

response to those general legal objections is discussed above in III.A. Other objections raised technical 

issues related to the EPA’s emissions and air quality modeling scenarios that were used to compare the 

results of the Transport Rule control scenario with the source-specific BART control scenario. In this 

section of the preamble we provide an overview of the EPA’s review of these technical comments. Our 

responses are discussed in detail in the Response to Comments document which is included in the 

docket for this rulemaking.

Summary of the EPA Responses to Comments on the Technical Analysis

1. Comments Related to the Emissions Scenarios Used in the EPA’s Analysis

 13 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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As noted above, the EPA developed two emissions scenarios: a 2014 “Nationwide BART” 

scenario and a 2014 “Transport Rule + BART-Elsewhere” scenario. Nationwide emissions were 

substantially lower under the “Transport Rule + BART-Elsewhere” scenario. Some commenters asserted 

that the emissions results for these two scenarios were skewed in favor of the Transport Rule. These 

commenters asserted that the EPA underestimated the emissions reductions from BART, and 

overestimated the emission reductions from the Transport Rule. These commenters raise issues 

generally with the use of presumptive BART limits in the “Nationwide BART” scenario and questioned

whether the EPA correctly applied the presumptive BART limits. 

The EPA disagrees with commenters asserting that the presumptive BART limits were 

inappropriate for use in this analysis. While the EPA recognizes that a case-by-case BART analysis 

may, in some source-specific assessments, result in emission limits more stringent than the presumptive 

limits, these limits are reasonable and appropriate for use in assessing regional emissions reductions 

from the BART scenario. This has been the EPA position since 2005. 71 FR 60619 (“the presumptions 

represent a reasonable estimate of a stringent case BART...because...they would be applied across the 

board to a wide variety of units with varying impacts on visibility, at power plants of varying size and 

distance from Class I areas”). Moreover, as discussed in detail in the Response to Comment document, 

the EPA believes that these comments overestimate the emissions reductions that would be associated 

with case-by-case BART because the commenters’ assertions of “best” technology for BART ignore 

other factors, including cost of control and resulting visibility improvement, that are critical components 

of a source-specific BART analysis. 

The EPA also received numerous comments concerning specific units for which the commenters 

believed the BART limits for SO2 had been incorrectly applied in IPM. Our review of these comments, 

which is presented in detail in the Response to Comments document, shows that (with minor exceptions) 

the EPA correctly applied these presumptive limits. After reviewing these comments and the IPM 
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outputs, we conclude that many of these comments stemmed from an apparent misunderstanding of the 

EPA’s application of the presumptive limits in IPM. Some of the unit-level comments pertained to units 

less than 100 MW for which the presumptive limits did not apply. Other comments pertained to units 

that did not meet both the 95 percent removal efficiency and the 0.15 lb/MMBtu rate. For BARTaffected units greater than or equal to 100 MW, the EPA’s IPM modeling required that they meet a SO2

emission rate limit of 0.15 lbs/MMBtu or

The EPA also disagrees with the commenters’ assertion that our application of presumptive 

limits for NO

a removal efficiency of 95 percent. As sources are only 

required to comply with one of these metrics (emission rate or percent removal), the IPM correctly 

determined that some BART sources could comply with an emission rate higher than 0.15 lb/MMBtu 

(while meeting the 95 percent FGD removal efficiency requirement) and some could comply with a 

removal efficiency less than 95 percent (while meeting the emission rate requirement). 

X should have provided for the installation of add-on equipment such as selective catalytic 

reduction (SCR). For all types of boilers other than cyclone units, the presumptive NOx limits in the 

EPA’s BART guidelines are based only on the use of current combustion control technology including 

low NOX

Finally, the EPA disagrees with commenters who expressed concerns that the “no-CAIR” base 

case was inappropriate for use in this analysis. The EPA agrees with commenters’ observation that the 

2014 base case leads to emission increases relative to current emissions. However, as explained in detail

in the preamble to the final Transport Rule, the EPA believes this is a reasonable and appropriate case to 

use for estimating emissions reductions that are attributable to the Transport Rule, and for estimating air 

quality concentrations in absence of the Transport Rule. 76 FR 48223. 

burners, over-fire air, and coal reburning. 70 FR 39134. 

2. Identification of Affected Class I Areas

Under the Regional Haze Rule, the reasonable progress achieved by an alternative program in 

“affected Class I areas” is compared to the reasonable progress achieved by source-specific BART. In 
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our proposal, the EPA requested comment on whether the “affected Class I areas” should be considered 

to be (1) the 60 Class I areas located in the Transport Rule eastern modeling domain, (2) the larger set of 

140 Class I areas, or (3) some other set. We noted that our air quality modeling results showed that the 

choice between the 60 Class I areas or the 140 Class I areas did not affect our proposed conclusion that 

both prongs of the two-pronged test are met.

Some commenters agreed that the EPA can properly rely on an assessment of the 60 Class I 

areas without referring to the results of the additional 80 Class I areas. These commenters noted, as did 

the EPA, that because both assessment approaches support the Transport Rule as a lawful and 

reasonable BART alternative, the EPA may appropriately confirm its determination based on either 

approach. Other commenters argued that the EPA improperly averaged across all Class I areas. These 

commenters argued that both the 60 Class I area region and the 140 Class I area region are too broad. 

These commenters presented information illustrating the “Nationwide BART” scenario to be superior to 

the Transport Rule alternative if the EPA averaged visibility improvement at the 27 Class I areas west of 

the Mississippi River but east of the Rocky Mountains. These commenters asserted that the EPA should 

not average across states, but rather should assume Transport Rule changes in one state at a time, and 

average the results for areas in (and nearby) that state. 

The EPA agrees with comments supporting our approach to identifying the “affected” Class I 

areas. The EPA agrees that in either case, the analysis shows that the two-pronged test for determining a 

BART alternative is satisfied. The EPA does not agree that it is necessary to evaluate results for a subregion such as the 27 Class I areas suggested by some commenters. Given that the Transport Rule 

affects emissions and air quality over a large region, the EPA believes it is reasonable to consider that 

entire region in evaluating the Class I areas that are also “affected” by this rule. The possibility of 

greater visibility improvement due to source-specific BART in specific Class I areas within the region of 

“affected Class I areas” is inherent to the two-pronged test that has been upheld by the D.C. Circuit 
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Court. As long as the average visibility improves over the entire

3. Ozone Season-Only Transport Rule States

region and no Class I area experiences 

degradation, the alternative is an appropriate and approvable alternative to source-specific BART. 

Some commenters noted that five states – Arkansas, Florida, Louisiana, Mississippi and 

Oklahoma – are covered by the Transport Rule ozone season only, and thus these states are only 

required to hold allowances and limit statewide NOX emissions during May through September. 

Commenters expressed concerns that while imposition of BART would require year-round operation of 

NOX controls, under the Transport Rule there would be no assurance that NOX

The EPA carefully considered this comment, and we reviewed the results of our technical 

analysis to evaluate whether such seasonal differences could occur. For programs which regulate ozone 

season NO

emission controls would 

operate during the remaining 7 months of the year. Accordingly, the commenters asserted that for these 

states the Transport Rule is not “better than BART” because it would allow for a potential degradation 

during these months, and thus the EPA should consider the Transport Rule to fail the first prong of the 

two-pronged test. 

X only, seasonal differences in the emissions rate (lb/MMBtu) can be seen where a source 

installs post-combustion controls such as selective catalytic reduction (SCR) or selective non-catalytic 

reduction (SNCR). Because these controls require the continuous use of a reagent such as ammonia or 

urea, it is probable that source owners would not operate the controls in non-ozone season months. 

These effects are indeed seen in the data reported to the EPA. However, where a program results in the 

imposition of combustion controls such as low-NOX burners and overfire air, the controls are an integral 

part of the operational design of the EGU. Accordingly, where combustion controls are installed in 

response to an ozone season-only requirement, the EPA does not expect to see seasonal differences in 

the lb/MMBtu NOX emission rate.
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Our review of the IPM predictions of how EGUs are likely to comply with the Transport Rule

indicated that in the “Transport Rule + BART-elsewhere” scenario, NOX control in the five ozone 

season-only states is achieved predominantly by combustion controls rather than post-combustion 

controls. In the Transport Rule scenario, for four of the five states (Arkansas, Louisiana, Mississippi and 

Oklahoma), the EPA projects that any additional NOX controls resulting from the Transport Rule would 

be combustion controls only. Furthermore, as explained above, for the “Nationwide BART” control 

scenario we applied the presumptive NOX limits to all BART-eligible sources nationwide that were not 

already equipped with post-combustion controls. According to the EPA’s BART guidelines, for all types 

of boilers other than cyclone units the presumptive BART limits for NOX are based on the use of current 

combustion control technology.14 70 FR 39134. For BART sources already equipped with postcombustion controls, we assumed under BART those controls would operate year-round. Therefore, the 

“Nationwide BART” scenario would result in generally uniform emission rates throughout the year in 

the five ozone season-only states. As a result, with the exception of Florida, there is no seasonal 

difference in NOX emission rates between the “Transport Rule + BART-elsewhere” scenario and the 

“Nationwide BART” scenario. In Florida, the one instance where IPM indicates a season-dependent 

difference between the two control scenarios, there are some EGUs with existing post-combustion 

controls (SCR) that the EPA projects would not operate at all unless incentivized to do so by either a 

source-specific BART requirement or by the Transport Rule, and under the Transport Rule would 

operate only during the ozone season. Our analysis of the two scenarios appropriately considered this 

seasonal difference by accounting for higher NOX emissions from those Florida units outside of the 

ozone season when these controls are projected not to operate in the “Transport Rule + BARTelsewhere” scenario. That is, our analysis assumed that post-combustion NOX

 14 There are no coal-fired cyclone units located in any of the five ozone season-only states so the 

presumptive limits for cyclone units do not apply.

controls would operate 

year-round under the “Nationwide BART” scenario and only during May through September in the 
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“Transport Rule + BART-elsewhere” scenario. When we analyzed the overall regional emissions 

reductions under the two scenarios, this did not affect our conclusion that the two-pronged test was 

satisfied. This outcome is very understandable because over a geographic region this small relative 

decrease during part of the year in emissions of NOX in the “Transport Rule + BART-elsewhere” 

scenario compared to the “Nationwide BART” scenario has much less effect than the visibility 

improvement attributable to the very large relative decrease in SO2

Finally, the EPA notes that in a previous rulemaking that established that CAIR was “betterthan-BART” it was also the case that some states subject to CAIR were subject only to ozone-season 

NO

emissions between the two 

scenarios. 

X

4. Comments Asserting the EPA Needs to Re-do the Analysis

budgets. In that rulemaking, our air quality analysis had similar results and our final rule 

established that the CAIR could be relied upon as an alternative to source-specific BART for those 

states. 

Some commenters asserted that the EPA could not issue a final determination that the Transport 

Rule achieves greater reasonable progress than BART without conducting a new modeling analysis that 

would correct an error in the emissions for the “Nationwide BART” scenario and that would take into 

account certain adjustments that the EPA made to some state budgets under the Transport Rule after the 

air quality modeling runs were completed. Specifically, the commenters noted that the EPA 

acknowledged in the TSD for the proposal that the emissions analysis for the “Nationwide BART” 

scenario should have, but did not, apply presumptive BART controls on BART-eligible Gerald 

Gentleman Unit 2 and that the EPA acknowledged that the Transport Rule scenario in the analysis did 

not take into account budget revisions for a number of states that were published or proposed subsequent 

to the promulgation of the Transport Rule in August 2011. The commenters believe that because of 

these two acknowledged discrepancies in the emissions values used in the air quality modeling for the 
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two scenarios, in combination with additional alleged errors, the EPA cannot issue a final determination 

unless and until a new analysis is conducted that takes these discrepancies into account.

The EPA disagrees that a re-analysis of the two-pronged test using new air quality modeling is 

necessary. As noted in the TSD, the EPA does not believe that the omission of Gerald Gentleman Unit 2

from the BART-eligible inventory of 489 units would affect the average visibility improvement that

serves as the basis for the determination because the emission reductions from a single EGU in the 

BART control scenario would not change the outcome of the air quality or visibility modeling.

15 In 

terms of total emission reductions, the “Transport Rule + BART-elsewhere” control scenario results in 

SO2 emission reductions that are more than 800,000 tons greater than the SO2 emission reductions of 

the “National BART” control scenario. The omission of roughly 12,000 tons of SO2

With respect to revisions in state budgets, as we discussed in the TSD, the post-analysis 

increases in the state budgets under the Transport Rule had a relatively small impact on the emissions 

comparison between the two scenarios. 76 FR 8227. We note that in addition to the Transport Rule 

revisions we discussed in the proposed rule, there have been subsequent adjustments to state budgets. 

On February 21, 2012, based on comments received on its previous rulemaking proposal, the EPA 

published revisions to 2012 and 2014 state budgets in Arkansas, Georgia, Indiana, Kansas, Louisiana, 

Mississippi, Missouri, New York, Nebraska, Ohio, Oklahoma, South Carolina and Texas, along with 

from Gerald 

Gentleman Unit 2 represents only a small percentage (about 1.5 percent) of this total reduction. Our 

response to other alleged errors in the BART inventory is presented in the Response to Comment 

document. 

 15 Technical Support Document for Demonstration of the Transport Rule as a BART Alternative, Docket 

EPA-HQ-OAR-2011-0729. p. 10. 
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revisions to new unit set-asides in Arkansas, Louisiana and Missouri. 77 FR 10342 and 77 FR 10350.

16

While individual state adjustments vary, overall, the total budget increase over the entire Transport Rule 

region is very small. The EPA believes it is a reasonable expectation that these adjustments would lead 

to very small impacts on annual and 24-hour PM2.5

After reviewing the public comments on the proposed rule, the EPA is finalizing its finding that 

the Transport Rule trading programs will provide greater progress towards regional haze goals than 

source-specific BART. This finding is based on the results of the two-pronged test for an alternative 

program. In this case, our analysis demonstrated that the trading programs of the Transport Rule do not 

cause degradation in any affected Class I area, thus passing the first prong of the test. The second prong 

of the test assesses whether the “Transport Rule + BART-elsewhere” scenario results in greater average 

visibility improvement at affected Class I areas compared to the “Nationwide BART” scenario. 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 passing the second 

prong of the test. The determination that the Transport Rule trading programs will provide greater 

progress towards regional haze goals than source-specific BART applies only to EGUs in the Transport 

Rule trading programs and only for pollutants covered by the programs in each state. Accordingly, we 

are revising 40 CFR 51.308(e)(4) by essentially replacing the name of the CAIR with the name of the 

Transport Rule.

concentrations and, as a consequence, would not 

have a meaningful impact on the two-pronged test satisfied by the analysis conducted for this rule. 

We are also finalizing our proposal that a state that chooses to meet the emissions reduction 

requirements of the Transport Rule by submitting a complete SIP revision that is approved as meeting 

 16 Some of these Transport Rule revisions were published in a final rule, whereas others were published 

in a direct final rule with parallel proposal. The EPA has since received comments on the parallel 

proposal and will review those comments accordingly. For the purposes of this BART rulemaking, the 

EPA has evaluated the potential impact of the full suite of Transport Rule revisions as presented in both 

Transport Rule actions published in February 2012 to reach the conclusions presented herein.
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the requirements of 40 CFR §§ 52.38 and/or 52.39 also need not require BART-eligible EGUs in the 

state to install, operate and maintain BART for the pollutants covered by such a trading program in the 

state. 

The results of the “Transport Rule + BART-elsewhere” control scenario analysis demonstrate 

that the use of NOx controls during ozone season only, in the states for which this Transport Rule 

requirement applies, results in greater visibility improvement than source-specific BART for NOx. 

Thus, we are finalizing our proposal that a state in the Transport Rule region whose EGUs are subject to 

the requirements of the Transport Rule trading program only for ozone season NOX is allowed to rely on 

our determination that the Transport Rule makes greater reasonable progress than source-specific BART 

for NOX

IV. Reasonably Attributable Visibility Impairment (RAVI)

. The states to which this aspect of our final rule applies are Arkansas, Florida, Louisiana, 

Mississippi and Oklahoma.

A. What did the EPA propose

We proposed to preserve 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 trading program to address a 

situation where BART is required based on RAVI at a Class I area.

?

17

B.

We received comments recommending that we explicitly state that the Transport Rule as an 

alternative to BART does not replace the BART analysis that is required to address RAVI certification. 

The commenter contends that the BART determination for RAVI needs to address the impairment at the 

specific Class I area or areas, a requirement that is not addressed by the demonstration of regionallyaveraged visibility improvement. Other commenters agreed that RAVI BART is critical to remedying 

Public Comments Related to RAVI

 17 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 satisfy 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. 
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existing impairment and must be implemented. This commenter also pointed out that RAVI BART is 

reactive as it requires FLM to voluntarily take action to address an existing problem. As such, RAVI 

BART will not result in proactive permitting to avoid degradation and it cannot be relied on to prevent 

hot spots. Furthermore, according to this commenter, the EPA in its finding that CAIR was better-thanBART explained that even under a BART alternative “...CAA section 169A(b)(2)’s trigger for BART 

based on impairment at any Class I area remains in effect, because a source may become subject to 

BART based on ‘reasonably attributable visibility impairment’ at any area” (citing 40 C.F.R. § 51.302)).

The EPA proposed to leave unchanged the existing regulatory language regarding geographic 

enhancements. The purpose of this language is to allow a market-based system to accommodate actions 

taken under the RAVI provisions. The EPA first adopted such language in the 1999 Regional Haze Rule,

64 FR 35757, and used it again in issuing regulations addressing our determination that CAIR provides 

for greater reasonable progress than BART, 70 FR 39156, and again in issuing regulations addressing 

trading program alternatives to BART in general, 71 FR 60612, 60627. In light of the fact that our 

proposal did not request comment on the interplay of the RAVI requirements in 40 CFR 51.302-306 

with the requirements of the Regional Haze Rule, we are not adopting any clarifying interpretation at 

this time. We expect at a later date to clarify the scope of the RAVI requirements through a rule 

amendment, general guidance, or action on a SIP or FIP in the context of a specific RAVI case.18

 18 A RAVI certification has been made for the Sherbourne County Generating Station (Sherco) in 

Minnesota, a state that has submitted a SIP relying on the Transport Rule. Department of the Interior, 

October 21, 2009.

Whatever the form, we intend to provide an opportunity for public comment before applying a new 

interpretation. We intend to consider the interpretation favored by some commenters that even when a 

state is relying on the Transport Rule trading programs to satisfy the BART requirement for its EGUs, a 

state is required to respond to a RAVI certification for an EGU with either a geographic enhancement or 

source-specific BART emission rate limits. We note that even under this interpretation it is possible that 
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a state could reasonably conclude, based on an analysis of the relevant factors, that no further controls 

are required. We also may consider more restrictive interpretations, including one in which a state would 

only be required to respond to a RAVI certification with either a geographic enhancement or sourcespecific BART emission rate limits if all three of the following conditions are met: (1) the RAVI 

certification reflects a serious adverse impact on visibility from the subject source compared to the 

impact from all other sources;19 (2) the RAVI certification has been made prior to some cutoff date set 

to be sufficiently after the final phase-in of the Transport Rule to allow time for technical analysis of the 

visibility impacts of the subject source but not so far into the future as to cause extended regulatory 

uncertainty for sources subject to the Transport Rule; and (3) the source in question has in fact not 

recently installed, nor is anticipated to install, any significant emission controls under the trading 

program (or for any other reason) for the pollutant(s) at issue.

C.

In this final action 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 trading program 

to accommodate a situation where BART is required based on RAVI at a Class I area. We are not 

adopting any clarifying interpretation of this language at this time, but we expect at a later date to clarify 

the scope of the RAVI requirements through a rule amendment, general guidance, or action on a SIP or 

FIP in the context of a specific RAVI case.

Final Action on RAVI

V. Limited Disapproval of Certain States’ Regional Haze SIPs

A. What did the EPA Propose

 19 The EPA notes that at the time when the RAVI provision in 40 CFR 51.302(c) was first adopted, 

technical methods for assessing visibility impact were rudimentary compared to at present. Because of 

these technical limitations at the time, the impacts from a source or small group of sources had to be 

fairly large to be “reasonably attributable.” Now, much smaller source-specific impacts can be readily 

identified through the use of air quality models. 

?
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We proposed a limited disapproval of the regional haze SIPs that have been submitted by 

Alabama, Florida, Georgia, Indiana, Iowa, Louisiana, Michigan, Mississippi, Missouri, North Carolina, 

Ohio, Pennsylvania, South Carolina and Texas. As noted previously, the EPA has already proposed a 

limited disapproval of the regional haze SIP submitted by Virginia that relied on CAIR, and has 

finalized a limited disapproval of the regional haze SIPs submitted by Kentucky (77 FR 19098), 

Tennessee (add FR after 4/15 signature), and West Virginia (77 FR 16937). 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 did not propose to disapprove the reasonable progress targets for 2018 that have been set by 

the states in their SIPs. The reasonable progress goals in the SIPs were set based on modeled projections 

of future conditions that were developed using the best available information at the time the analysis was 

done. Given the requirement in 40 CFR 51.308(d)(1)(vi) that states must take into account the visibility 

improvement that is expected to result from the implementation of other Clean Air Act requirements, 

states set their reasonable progress goals based, in part, on the emission reductions expected to be 

achieved by CAIR. As CAIR has now been remanded by the D.C. Circuit, the assumptions underlying 

the development of the reasonable progress targets have changed; however, because the overall EGU 

emission reductions from the Transport Rule are larger than the EGU emission reductions that would 

have been achieved by CAIR, we expect the Transport Rule to provide similar or greater benefits than 

CAIR. In addition, unlike the enforceable emissions limitations and other enforceable measures in the 

long-term strategy, see 64 FR 35733, reasonable progress goals are not enforceable measures. Given 

these considerations, we concluded not to propose disapproval of the reasonable progress goals in any of 

the regional haze SIPs that relied on CAIR. We noted our intent to act on the remaining elements of the 

SIP for each state in a separate notice.
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B.

One commenter seems to have interpreted our statement that the EPA was not proposing to 

disapprove the reasonable progress goals set by affected states to mean that the EPA had proposed to 

determine that these reasonable progress goals meet the requirements of the Regional Haze Rule. The 

commenter stated that the EPA cannot reasonably conclude that the Transport Rule achieves reasonable 

progress. As noted in the proposal, we intend to evaluate the reasonable progress goals for each state 

when taking action on the remaining elements of their regional haze SIPs. As explained above, we do 

not consider the remand of CAIR to provide a basis for disapproving the reasonable progress goals set 

by the states. That determination, however, does not indicate that we intend to approve the targets set by 

the states without any further consideration. In addition, while we have concluded that the Transport 

Rule achieves greater reasonable progress than BART, we have not determined, as the commenter 

suggests, that the Transport Rule alone achieves reasonable progress towards the natural visibility goal. 

Public Comments Related to on Limited Disapprovals

C.

This action includes a final limited disapproval of the regional haze SIPs submitted by Alabama, 

Georgia, Indiana, Iowa, Louisiana, Michigan, Mississippi, Missouri, North Carolina, Ohio, 

Pennsylvania, South Carolina, Virginia and Texas. We are not finalizing the limited disapproval for 

Florida at this time because the state has requested additional time to modify its SIP to address the 

change in applicability of the Transport Rule to Florida in the final rule published on August 8, 2011,

(76 FR 48208) and is actively preparing such a SIP revision. The EPA included Florida in the proposed 

Transport Rule for coverage under both the SO

Final Action on Limited Disapprovals

2 and NOx trading programs, but removed Florida from 

the SO2 trading program in the final Transport Rule. Florida was unaware of this modification until 

publication of the final rule. The EPA has decided to postpone action on Florida’s regional haze SIP 

given this extenuating circumstance, Florida’s request for additional time to modify its SIP to address 
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the change in coverage under the Transport Rule, and Florida’s continued progress toward submitting a 

SIP revision.

VI. FIPs

A. What did the EPA propose

We proposed FIPs to replace reliance on CAIR requirements with reliance on the trading 

programs of the Transport Rule as an alternative to BART for SO

?

2 and NOX 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. We proposed FIPs to replace reliance on CAIR requirements with reliance on the Transport 

Rule as an alternative to BART for NOX

We proposed that these limited FIPs would satisfy the BART requirement and be a part of 

satisfying the requirement for a long-term strategy sufficient to achieve the state-adopted reasonable 

progress goals. The FIPs would apply only to EGUs in the affected states and only to pollutants covered 

by the Transport Rule program in those states. The proposed FIPs would not alter states’ reasonable 

progress goals or replace these goals. 

emissions from EGUs in the following states’ regional haze 

SIPs: Florida, Louisiana and Mississippi.

B.

Similar to the comments received regarding our proposed limited disapprovals, numerous 

commenters argued that the EPA should not finalize FIPs because, according to the commenters, we 

cannot rely on the Transport Rule because of the current stay of that rule. Other commenters took the 

position that we should fully approve the regional haze SIPs that relied on CAIR to satisfy certain 

regional haze requirements and that our proposed FIPs substituting the Transport Rule as an alternative 

to source-specific BART in regional haze SIPs are unnecessary. 

Public Comments on Proposed FIPs
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As explained above in section II.B.2, we do not agree that the EPA cannot rely on the Transport 

Rule because of the temporary stay imposed by the D.C. Circuit. With respect to reliance on CAIR, as 

explained in section II.A.3, CAIR has been remanded and only remains in place temporarily;

consequently, we cannot fully approve those regional haze SIP revisions that have relied on the nowtemporary reductions from CAIR. Although CAIR is currently in place, as a result of the Order by the 

EME Homer Generation

A number of states objected to the EPA’s proposed FIP as these states did not receive a finding 

of failure to timely submit a regional haze SIP. These states requested the allowable time to revise and 

resubmit their SIP. Other states which also did not receive a finding of failure to timely submit a 

regional haze SIP did not object to the EPA’s proposed FIP. As explained in section VI.C, we have 

responded to this comment by granting additional time to those states that prefer to revise and resubmit 

their SIP to the EPA for approval and did not receive a finding of failure to timely submit their regional 

haze SIP.

court, this does not affect the earlier court ruling remanding CAIR to the EPA.

C.

In this action, the EPA is finalizing FIPs to replace reliance on CAIR with reliance on the 

Transport Rule as an alternative to BART in regional haze SIPs of Georgia, Indiana, Iowa, Kentucky, 

Michigan, Missouri, Ohio, Pennsylvania, South Carolina, Tennessee, Texas, Virginia and West Virginia. 

Regional haze SIPs were due in December 2007. 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). We made a finding on January 15, 2009, that Georgia, Indiana, Michigan, Ohio, 

Pennsylvania, Texas, and Virginia had failed to timely submit a regional haze SIP. We are finalizing the 

FIPs for Iowa, Missouri, South Carolina, Tennessee and West Virginia, even though we are not required 

by the CAA to do so at this time, because of our understanding based on communications with state 

Final Action on FIPs 
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officials that this action on our part is their preference. Our adoption of these FIPs at this time avoids the 

near-term need for additional administrative steps on the part of these states. That is, these states do not 

have to take any further action on their regional haze SIPs until SIP revisions are due in 2018. However, 

at any time, states may, and are encouraged to, submit a revision to their regional haze SIP incorporating 

the requirements of the Transport Rule. At that time, we will withdraw the FIP being finalized in this 

action.

We are not finalizing FIPs, as proposed, for Alabama, Florida, Louisiana, Mississippi or North 

Carolina. Rather than a FIP, Alabama, Louisiana, Mississippi and North Carolina have requested 

additional time to correct the deficiencies in their SIPs and submit a SIP revision. As these states did not 

receive a finding of failure to submit a regional haze SIP, the EPA is not required to promulgate a FIP at 

this time. The EPA will be required to issue a FIP for each state that does not submit an approvable SIP 

revision that corrects the deficiencies related to reliance on CAIR in time for the EPA to review and 

approve it within 2 years of this final limited disapproval action. The EPA is also deferring action on the 

proposed FIP for Florida for the reasons discussed in section V.C. above.

VII. Regulatory Text

A.

Based on our finding that the “Transport Rule + BART-elsewhere” control scenario passes the 

two-pronged test, we proposed to determine that the Transport Rule trading program will provide greater 

progress towards Regional Haze goals than source-specific BART. We noted that the proposed 

determination would apply only to EGUs in the Transport Rule trading programs and only for the 

pollutants covered by the programs in each state. Accordingly, we proposed to revise 40 CFR 

51.308(e)(4) by essentially replacing the name of CAIR with the name of the Transport Rule. 

What did the EPA propose?

We also proposed 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 
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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 state to install, operate, and maintain BART for the pollutants 

covered by such a trading program in the state.

B.

A number of the states for which we proposed 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 regulations 

issued in 1980. 

Clarification of Final Regulatory Text

See

VIII. Statutory and Executive Order Reviews

45 FR 80084 (December 2, 1980). The final regulatory text takes 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 requirements of visibility regulations found at 40 CFR 51.302-51.307. 

A.

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 forth 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 have been documented in the docket for this action.

Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving 

Regulation and Regulatory Review

B.

This action does not impose an information collection burden under the provisions of the 

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. 

C. Regulatory Flexibility Act
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The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory 

flexibility analysis of any rule subject to notice and comment rulemaking requirements under the 

Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a 

significant economic impact on a substantial number of small entities. Small entities include small 

businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of this rule on small entities, small entity is defined as: (1) 

A small business that is a small industrial entity as defined by the U.S. Small Business Administration’s

(SBA) regulations at 13 CFR 121.201; (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 enterprise which is independently owned and operated and is not 

dominant in its field.

After considering the economic impacts of this final rule on small entities, I certify that this 

action will not have a significant economic impact on a substantial number of small entities. This final 

rule will not impose any requirements on small entities. Rather, this 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 new requirements on small entities. 

D.

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.

Unfunded Mandates Reform Act
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This action is also not subject to the requirements of section 203 of UMRA because it contains 

no regulatory requirements that might significantly or uniquely affect small governments. This action 

merely interprets the statutory requirements that apply to states in preparing their SIPs.

E.

This action does not have federalism implications. It will not have substantial direct effects on 

the states, on the relationship between the national government and the states, or on the distribution of 

power and responsibilities among the various levels of government, as specified in Executive Order 

13132. This action does not impose any new mandates on state or local governments. 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 

specifically solicited comments on the proposed rule from state and local officials. We received 

comments from seven states. These comments are addressed in the final action and in the Response to 

Comment document.

Executive Order 13132: Federalism

F.

This rule does not have tribal implications, as specified in Executive Order 13175 (65 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 for the inclusion of any tribal areas as mandatory Class I federal areas; thus, 

tribal areas are not subject to the requirements of the Regional Haze Rule. Furthermore, this rule does 

not affect the relationship or distribution of power and responsibilities between the federal government 

and Indian tribes. Thus, Executive Order 13175 does not apply to this action. The EPA specifically 

solicited additional comment on the proposed action from tribal officials and we received none.

Executive Order 13175: Consultation and Coordination with Indian Tribal Governments

G. Executive Order 13045: Protection of Children from Environmental Health and Safety Risks 
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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 required under section

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 establish an environmental standard intended to mitigate health or 

safety risks.

H.

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. This action does not establish requirements that directly affect the general 

public and private sectors. Rather, this rule will allow states to avoid regulating EGUs in new ways 

based on the current requirements of the Transport Rule, and thus may avoid adverse effects that 

conceivably might result from such additional regulation of EGUs by states.

Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, 

Distribution, or Use

I.

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

Public 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 technical standards (

National Technology Transfer and Advancement Act 

e.g.

This action does not involve technical standards. Therefore, the EPA did not consider the use of 

any voluntary consensus standards.

, materials 

specifications, test methods, sampling procedures, and business practices) that are developed or adopted 

by voluntary consensus 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. 
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J.

Executive Order 12898 (EO) (59 FR 7629, February 16, 1994) establishes federal executive 

policy on environmental justice. Its main provision directs federal agencies, to the greatest extent 

practicable and permitted by law, to make environmental justice part of their mission by identifying and 

addressing, as appropriate, disproportionately high and adverse human health or environmental effects 

of their programs, policies, and activities on minority populations and low-income populations in the 

United States.

Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations 

and Low-Income Populations

The EPA has concluded that it is not practicable to determine whether there would be 

disproportionately high and adverse human health or environmental effects on minority and/or low 

income populations from this final rule. The PM2.5 air quality improvements that might 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 as states have the discretion to determine 

which BART-eligible sources to control and the level of control that is feasible. However, our analysis 

of the Transport Rule suggests that the regional Transport Rule approach provides widespread health 

benefits especially among populations most vulnerable to PM2.5 impacts. This analysis is presented in 

detail in the Regulatory Impact Analysis for 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 available at

www.epa.gov/airtransport. 

K.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory 

Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency 

promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the 

Congress and to the Comptroller General of the United States. The EPA will submit a report containing 

Congressional Review Act
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this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the 

Comptroller General of the United States prior to publication of the rule in the Federal Register. A 

Major rule cannot take effect until 60 days after it is published in the Federal Register

IX. Statutory Authority

. This action is not

a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective [INSERT DATE 60 DAYS 

AFTER PUBLICATION IN THE FEDERAL REGISTER]. .

Statutory authority for this rule comes from sections 169A and 169B of the CAA (42 U.S.C. 

7491 and 7492). These sections require the EPA to issue regulations that will require states to revise 

their SIPs to ensure that reasonable progress is made toward the national visibility goals specified in 

section 169A.

List of Subjects

40 CFR part 51

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.
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Page 45 of 57 - Regional Haze: Revisions to Provisions Governing Alternatives to Source-Specific 

Best Available Retrofit Technology (BART) Determinations, Limited SIP Disapprovals, and 

Federal Implementation Plans 

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.
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For the reasons set forth in the preamble, part 51 and part 52 of chapter I of title 40 of the Code of 

Federal Regulations is are 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 revising paragraph (e)(3)(ii)(4) to read as follows:

§51.308 Regional haze program requirements.

*****

 (e) *****

 (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 steam 

electric 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 requirements 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 

steam electric 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 established in accordance with §52.38 or §52.39 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:
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PART 52-[AMENDED]

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

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

Subpart B-Alabama

.

 4. Section 52.61 is amended by revising paragraph (a) and adding a new paragraph (c) to read as 

follows:

§52.61 Visibility protection.

 (a) Reasonably Attributable Visibility Impairment. 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 51.306 for protection of visibility in mandatory Class I Federal areas. 

*****

 (c) Regional Haze. The requirements of section 169A of the Clean Air Act are not met because the 

regional haze plan submitted by Alabama on July 15, 2008 does not include fully approvable measures 

for meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) with respect to emissions of NOx 

and SO2

Subpart L-Georgia

from electric generating units. EPA has given limited approval and limited disapproval to the 

plan provisions addressing these requirements.

 5. Section 52.580 is added to read as follows:

§52.580 Visibility protection.

 (a) Regional Haze. The requirements of section 169A of the Clean Air Act are not met because the 

regional haze plan submitted by Georgia on February 11, 2010 and supplemented on November 19, 

2010 does not include fully approvable measures for meeting the requirements of 40 CFR 51.308(d)(3) 

and 51.308(e) with respect to emissions of NOX and SO2 from electric generating units. EPA has given 

limited approval and limited disapproval to the plan provisions addressing these requirements.
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(b) Measures Addressing Limited Disapproval Associated with NOX

(c) Measures Addressing Limited Disapproval Associated with SO

. The deficiencies associated with 

NOx identified in EPA’s limited disapproval of the regional haze plan submitted by Georgia on 

February 11, 2010 and supplemented on November 19, 2010 are satisfied by §52.584.

2. The deficiencies associated with 

SO2

Subpart P-Indiana

identified in EPA’s limited disapproval of the regional haze plan submitted by Georgia on February 

11, 2010 and supplemented on November 19, 2010 are satisfied by §52.585.

 6. Section 52.791 is added to read as follows:

§52.791 Visibility protection.

 (a) Regional Haze. The requirements of section 169A of the Clean Air Act are not met because the 

regional haze plan submitted by Indiana on January 14, 2011 and supplemented on March 10, 2011 does 

not include fully approvable measures for meeting the requirements of 40 CFR 51.308(d)(3) and 

51.308(e) with respect to emissions of NOX and SO2

 (b) Measures Addressing Limited Disapproval Associated with NOx. The deficiencies associated with 

NOx identified in EPA’s limited disapproval of the regional haze plan submitted by Indiana on January

14, 2011 and supplemented on March 10, 2011 are satisfied by §52.789.

from electric generating units. EPA has given 

limited approval and limited disapproval to the plan provisions addressing these requirements.

(c) Measures Addressing Limited Disapproval Associated with SO2. The deficiencies associated with 

SO2

Subpart Q-Iowa

identified in EPA’s limited disapproval of the regional haze plan submitted by Indiana on January 

14, 2011 and supplemented on March 10, 2011 are satisfied by §52.790.

7. Section 52.842 is added to read as follows:

§52.842 Visibility protection.
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 (a) Regional Haze. The requirements of section 169A of the Clean Air Act are not met because the 

regional haze plan submitted by Iowa on March 25, 2008 does not include fully approvable measures for 

meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) with respect to emissions of NOX and 

SO2

(b) Measures Addressing Limited Disapproval Associated with NOx. The deficiencies associated with 

NOx identified in EPA’s limited disapproval of the regional haze plan submitted by Iowa on March 25, 

2008 are satisfied by §52.840.

from electric generating units. EPA has given limited approval and limited disapproval to the plan 

provisions addressing these requirements.

 (c) Measures Addressing Limited Disapproval Associated with SO2. The deficiencies associated with 

SO2

Subpart S-Kentucky

identified in EPA’s limited disapproval of the regional haze plan submitted by Iowa on March 25, 

2008 are satisfied by §52.841.

 8. Section 52.936 is amended by revising paragraph (a) and by adding new paragraphs (b) and (c) to 

read as follows:

§52.936 Visibility protection.

 (a) Regional Haze. The requirements of section 169A of the Clean Air Act are not met because the 

regional haze plan submitted by Kentucky on June 25, 2008 and amended on May 28, 2010 does not 

include fully approvable measures for meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) 

with respect to emissions of NOx and SO2

 (b) Measures Addressing Limited Disapproval Associated with NOx. The deficiencies associated with 

NOx identified in EPA’s limited disapproval of the regional haze plan submitted by Kentucky on June 

25, 2008 and amended on May 28, 2010 are satisfied by §52.940.

from electric generating units. EPA has given limited 

approval and limited disapproval to the plan provisions addressing these requirements.
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 (c) Measures Addressing Limited Disapproval Associated with SO2. The deficiencies associated with 

SO2

Subpart T-Louisiana

identified in EPA’s limited disapproval of the regional haze plan submitted by Kentucky on June 

25, 2008 and amended on May 28, 2010 are satisfied by §52.941.

 9. Section 52.985 is added to read as follows:

§52.985 Visibility protection.

 (a) Regional Haze. The requirements of section 169A of the Clean Air Act are not met because the 

regional haze plan submitted by Louisiana on June 13, 2008 does not include fully approvable measures 

for meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) with respect to emissions of NOx 

and SO2

Subpart X-Michigan

from electric generating units. EPA has given limited approval and limited disapproval to the 

plan provisions addressing these requirements.

 10. Section 52.1183 is amended by revising paragraph (a) and adding new paragraphs (d), (e), and (f) 

to read as follows: 

§52.1183 Visibility protection.

 (a) Reasonably Attributable Visibility Impairment. 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, and 51.307 for protection of visibility in mandatory Class I Federal areas. 

*****

 (d) Regional Haze. The requirements of section 169A of the Clean Air Act are not met because the 

regional haze plan submitted by Michigan on November 5, 2010 does not include fully approvable 

measures for meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) with respect to emissions 

of NOX and SO2 from electric generating units. EPA has given limited approval and limited disapproval 

to the plan provisions addressing these requirements.
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 (e) Measures Addressing Limited Disapproval Associated with NOx. The deficiencies associated with 

NOx identified in EPA’s limited disapproval of the regional haze plan submitted by Michigan on 

November 5, 2010 are satisfied by §52.1186.

(f) Measures Addressing Limited Disapproval Associated with SO2. The deficiencies associated with 

SO2

Subpart Z-Mississippi

identified in EPA’s limited disapproval of the regional haze plan submitted by Michigan on 

November 5, 2010 are satisfied by §52.1187.

 11. Section 52.1279 is added to read as follows:

§52.1279 Visibility protection.

 (a) Regional Haze. The requirements of section 169A of the Clean Air Act are not met because the 

regional haze plan submitted by Mississippi on September 22, 2008 and supplemented on May 9, 2011

does not include fully approvable measures for meeting the requirements of 40 CFR 51.308(d)(3) and 

51.308(e) with respect to emissions of NOx and SO2

Subpart AA-Missouri

from electric generating units. EPA has given 

limited approval and limited disapproval to the plan provisions addressing these requirements.

 12. Section 52.1339 is amended by revising paragraph (a) and adding new paragraphs (c), (d), and (e) 

to read as follows:

§52.1339 Visibility protection.

 (a) Reasonably Attributable Visibility Impairment. 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 51.306 for protection of visibility in mandatory Class I Federal areas.

*****

 (c) Regional Haze. The requirements of section 169A of the Clean Air Act are not met because the 

regional haze plan submitted by Missouri on August 5, 2009 and supplemented on January 30, 2012 
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does not include fully approvable measures for meeting the requirements of 40 CFR 51.308(d)(3) and 

51.308(e) with respect to emissions of NOx and SO2

 (d) Measures Addressing Limited Disapproval Associated with NOx. The deficiencies associated with 

NOx identified in EPA’s limited disapproval of the regional haze plan submitted by Missouri on August 

5, 2009 and supplemented on January 30, 2012 are satisfied by §52.1326.

from electric generating units. EPA has given 

limited approval and limited disapproval to the plan provisions addressing these requirements.

 (e) Measures Addressing Limited Disapproval Associated with SO2. The deficiencies associated with 

SO2

Subpart II-North Carolina

identified in EPA’s limited disapproval of the regional haze plan submitted by Missouri on August 

5, 2009 and supplemented on January 30, 2012 are satisfied by §52.1327.

 13. Section 52.1776 is added to read as follows:

§52.1177 Visibility protection.

 (a) Regional Haze. The requirements of section 169A of the Clean Air Act are not met because the 

regional haze plan submitted by North Carolina on December 17, 2007 does not include fully 

approvable measures for meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) with respect to 

emissions of NOx and SO2

Subpart KK-Ohio

from electric generating units. EPA has given limited approval and limited 

disapproval to the plan provisions addressing these requirements.

 14. Section 52.1886 is added to read as follows:

§52.1886 Visibility protection.

 (a) Regional Haze. The requirements of section 169A of the Clean Air Act are not met because the 

regional haze plan submitted by Ohio on March 11, 2011 does not include fully approvable measures for 

meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) with respect to emissions of NOx and 
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SO2

(b) Measures Addressing Limited Disapproval Associated with NOx. The deficiencies associated with 

NOx identified in EPA’s limited disapproval of the regional haze plan submitted by Ohio on March 11, 

2011 are satisfied §52.1882.

from electric generating units. EPA has given limited disapproval to the plan provisions addressing 

these requirements.

 (c) Measures Addressing Limited Disapproval Associated with SO2. The deficiencies associated with 

SO2

Subpart NN-Pennsylvania

identified in EPA’s limited disapproval of the regional haze plan submitted by Ohio on March 11, 

2011 are satisfied by §52.1883.

 15. Section 52.2042 is added to read as follows:

§52.2042 Visibility protection.

 (a) Regional Haze. The requirements of section 169A of the Clean Air Act are not met because the 

regional haze plan submitted by Pennsylvania on December 20, 2010 does not include fully approvable

measures for meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) with respect to emissions 

of NOx and SO2

 (b) Measures Addressing Limited Disapproval Associated with NOx. The deficiencies associated with 

NOx identified in EPA’s limited disapproval of the regional haze plan submitted by Pennsylvania on 

December 20, 2010 are satisfied §52.2040.

from electric generating units. EPA has given limited approval and limited disapproval 

to the plan provisions addressing these requirements.

 (c) Measures Addressing Limited Disapproval Associated with SO2. The deficiencies associated with 

SO2

Subpart PP-South Carolina

identified in EPA’s limited disapproval of the regional haze plan submitted by Pennsylvania on 

December 20, 2010 are satisfied by §52.2041.
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 16. Section 52.2132 is amended by revising paragraph (a) and adding new paragraphs (d), (e), and (f) 

to read as follows: 

§52.2132 Visibility protection.

 (a) Reasonably Attributable Visibility Impairment. 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 and 51.306 for protection of visibility in mandatory Class I Federal areas.

*****

 (d) Regional Haze. The requirements of section 169A of the Clean Air Act are not met because the 

regional haze plan submitted by South Carolina on December 17, 2007 does not include fully 

approvable measures for meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) with respect to 

emissions of NOx and SO2

 (e) Measures Addressing Limited Disapproval Associated with NOx. The deficiencies associated with 

NOx identified in EPA’s limited disapproval of the regional haze plan submitted by South Carolina on 

December 17, 2007 are satisfied by §52.2140.

from electric generating units. EPA has given limited approval and limited 

disapproval to the plan provisions addressing these requirements.

 (f) Measures Addressing Limited Disapproval Associated with SO2. The deficiencies associated with 

SO2

Subpart RR-Tennessee

identified in EPA’s limited disapproval of the regional haze plan submitted by South Carolina on 

December 17, 2007 are satisfied by §52.2141.

 17. Section 52.2234 is amended by revising paragraph (a) and adding new paragraphs (c) and (d) to 

read as follows:

§52.2234 Visibility protection.

 (a) Regional Haze. The requirements of section 169A of the Clean Air Act are not met because the 

regional haze plan submitted by Tennessee on April 4, 2008 does not include fully approvable measures 
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for meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) with respect to emissions of NOx 

and SO2

******

from electric generating units. EPA has given limited approval and limited disapproval to the 

plan provisions addressing these requirements.

 (c) Measures Addressing Limited Disapproval Associated with NOx. The deficiencies associated with 

NOx identified in EPA’s limited disapproval of the regional haze plan submitted by Tennessee on April 

4, 2008 are satisfied by §52.2240.

 (d) Measures Addressing Limited Disapproval Associated with SO2. The deficiencies associated with 

SO2

Subpart SS-Texas

identified in EPA’s limited disapproval of the regional haze plan submitted by Tennessee on April 

4, 2008 are satisfied by §52.2241.

 18. Section 52.2304 is amended by revising paragraph (a) and adding new paragraphs (c), (d), and (e) 

to read as follows: 

§52.2304 Visibility protection.

 (a) Reasonably Attributable Visibility Impairment. The requirements of section 169A of the Clean Air 

Act are not met because the plan does not include fully approvable measures for meeting the 

requirements of 40 CFR 51.305 for protection of visibility in mandatory Class I Federal areas. 

*****

 (c) Regional Haze. The requirements of section 169A of the Clean Air Act are not met because the 

regional haze plan submitted by Texas on March 31, 2009 does not include fully approvable measures 

for meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) with respect to emissions of NOx 

and SO2 from electric generating units. EPA has given limited approval and limited disapproval to the 

plan provisions addressing these requirements.
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 (d) Measures Addressing Limited Disapproval Associated with NOx. The deficiencies associated with 

NOx identified in EPA’s limited disapproval of the regional haze plan submitted by Texas on March 31, 

2009 are satisfied by §52.2283.

 (e) Measures Addressing Limited Disapproval Associated with SO2. The deficiencies associated with 

SO2

Subpart VV-Virginia

identified in EPA’s limited disapproval of the regional haze plan submitted by Texas on March 31, 

2009 are satisfied by §52.2284.

 19. Section 52.2452 is amended by revising paragraph (a) and adding new paragraphs (d), (e), and (f) 

to read as follows: 

§52.2452 Visibility protection.

 (a) Reasonably Attributable Visibility Impairment. 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 and 51.306 for protection of visibility in mandatory Class I Federal areas. 

*****

 (d) Regional Haze. The requirements of section 169A of the Clean Air Act are not met because the 

regional haze plan submitted by Virginia on July 17, 2008, March 6, 2009, January 14, 2010, October 4, 

2010, November 19, 2010, and May 6, 2011 does not include fully approvable measures for meeting the 

requirements of 40 CFR 51.308(d)(3) and 51.308(e) with respect to emissions of NOx and SO2

 (e) Measures Addressing Limited Disapproval Associated with NOx. The deficiencies associated with 

NOx identified in EPA’s limited disapproval of the regional haze plan submitted by Virginia on July 17, 

2008, March 6, 2009, January 14, 2010, October 4, 2010, November 19, 2010, and May 6, 2011 are 

satisfied by §52.2440.

from 

electric generating units. EPA has given limited approval and limited disapproval to the plan provisions 

addressing these requirements.
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(f) Measures Addressing Limited Disapproval Associated with SO2. The deficiencies associated with 

SO2

Subpart XX-West Virginia

identified in EPA’s limited disapproval of the regional haze plan submitted by Virginia on July 17, 

2008, March 6, 2009, January 14, 2010, October 4, 2010, November 19, 2010, and May 6, 2011 are 

satisfied by §52.2441.

 20. Section 52.2533 is amended by revising paragraph (a) and adding new paragraphs (e) and (f) to 

read as follows: 

§52.2533 Visibility protection.

 (a) Reasonably Attributable Visibility Impairment. 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, 51.306, and 51.307 for protection of visibility in mandatory Class I Federal areas.

*****

 (e) Measures Addressing Limited Disapproval Associated with NOx. The deficiencies associated with 

NOx identified in EPA’s limited disapproval of the regional haze plan submitted by West Virginia on 

June 18, 2008 are satisfied by §52.2540.

 (f) Measures Addressing Limited Disapproval Associated with SO2. The deficiencies associated with 

SO2 identified in EPA’s limited disapproval of the regional haze plan submitted by West Virginia on 

June 18, 2008 are satisfied by §52.2541.