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Page 1 of 57 6560 - 50 - P ENVIRONMENTAL PROTECTION AGENCY 40 CFR P art 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 pertain ing to the regional haze program. In this action, the EPA is finalizing our finding that the trading program s in the Transport Rule, also known as the Cross

- St ate 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 Al abama, Georgia, Indiana, Iowa, Louisiana, Michigan, Mississippi, Missouri, North Carolina, Ohio, Pennsylvania, South Carolina , Virginia and Texas because these states relied on
r equirements of the Clean Air Interstate Rule (CAIR) to satisfy certain regiona l haze requirements. T o 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 6 0 DAYS AFTER PUBLICATION IN THE FEDERAL REGISTER]
. ADDRESSES:*** E.O. 12866 Review

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Page 2 of 57 Docket
. The EPA has established a docket for this action under docke t 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 ma terials 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, Washingto n, 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 FU RTHER 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 affect s 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 CAIR 2 as an alternative to BART for sulfur dioxide (SO 2 ) and/or nitrogen o xide (NO X

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 geo graphic 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 NO x SIP Call; Final Rule, 70 FR 25162 (May 12, 2005).*** E.O. 12866 Review

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Page 3 of 57 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 D eveloping a n Alternative P rogram to BART 2. What is the relationship b etween BART and CAIR? 3. Remand of CAIR and Implications for State Regional Haze Implementation P lans 4. The Transpor t Rule and Re gional Haze SIPs B. Summary of the EPA R esponses to General and Legal Issues Raised in Public C omments 1. Authority for an A lternative T rading P rogram 2. Effect of the Transport Rule S tay 3. Rationale for D isapproval of SIPs B ased on CAIR 4
. The R elations hip between a Better

- than

- BART D etermination and Reasonable P rogress I II
. Technical Analysis Supporting the Determination of the Transport Rule as an Alternative to BART A. What analysis did we rely on for our p roposed d etermination ? 1. Application of the T wo - P ronged T est 2. Identification of A ffected Class I A reas 3. Control S cenarios E xamined 4. Emission P rojections 5. Air Q uality M odeling R esults B. Summary of the EPA R esponses to C omments on the Technical Analysis*** E.O. 12866 Review

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Page 4 of 57 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 I V. Reasonably Attributable Visibility Impairment (RAVI) A. What did the EPA p ropose? 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 p ropose? B. Public Comments Related to Limited Disapprovals C. Final Action on Limited Disapprovals V I
. FIPs A. What did the EPA p ropose? B. Public C omments on Limited Disapprovals C. Final A ction on FIPs VI I. Regulatory Text A. What did the EPA p ropose? B. Clarification of Regulatory T ext VIII . Statutory and Executiv e Order A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulato ry R eview 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 Concerni ng 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 P opulations and Low

- Income Populations K. Congressional Review Act I X. Statutory Authority II . B ackground and General Legal C onsiderations for the EPA’ s Final A ction A. S ection 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*** E.O. 12866 Review

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Page 5 of 57 procure, install, and operate BART as determined by the state. 3

1
. Criteria for D eveloping 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 contri bute to any visibility impairment in a Class I area. Rather than requiring source

specific BART controls, states also have the flexibility to adopt an emissions trading program or other alternative program as long as the alternative provides greater reason able progress towards improving visibility than BART
. 40 CFR §51.308(e)(2). The EPA provided states with this flexibility in the R egional H aze R ule , adopted in 1999, and further refined the criteria for assessing whether an alternative program provides for gr eater reasonable progress in three subsequent rulemakings. 64 FR 35 714 (July 1, 1999); 70 FR 39104 (July 6, 2005); 7 1 FR 60612 ( October 1 3 , 200 6 ). These criteria are described below.
Specific c riteria for determining if an alternative measure achieves greater reasonable progress than source

- specific BART are set out in the R egional H aze R ule at § 51.308(e)(3). 4 The “better

- than

BART” test may be satisfied as follows: If the distribution of emiss ions 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 di fferent, then states are directed to conduct an air quality modeling study to determine

3 The preamble to the proposed rule provides addi tional background on the visibility requirements of the Clean Air Act and the EPA’s Regional Haze R ule. 76 FR 82221

- 22. 4 The R egional H aze R ule also allows for a demonstration that an alternative program provides for greater reasonable progress to be based on the clear weight of evid ence. 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).*** E.O. 12866 Review

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Page 6 of 57 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 visibil ity test would demonstrate “greater

- Visibility does not decline in any Class I area 6

- 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 b etween BART and CAIR? In May 2005, the EPA published CAIR, which required 28 states and the District of Columbia to reduce emissions o f SO 2 and NO X that significantly contribute to, or interfere with maintenance of, the 1997 national ambient air quality standards (NAAQS) for fine particulates and/or ozone in any downwind state. The CAIR established emission budgets for SO 2 and NO X

As noted above, the R egional H aze R ule 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 st ates 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 promulga ted CAI R FIPs for the affected states establishing cap and trade program s 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 reductio ns 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 R egional 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.*** E.O. 12866 Review

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Page 7 of 57 progress toward the national visibility goal than would BART. The EPA made just such a demonstration f or 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 program s 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 SO 2 and NO X . 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 program s as an alternative to BART for EGU emissions of SO , 471 F.3d 1333 (DC C ir. 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 NO X

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 “te mporarily 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 requirement s of t he Transport Rule , which are currently stayed pending the outcome of litigation, will take effect in advance of the 2018 deadline for any BART alternativ e 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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Page 8 of 57 interim period before the Transport Rule takes effect, t he CAIR and the CAIR FI Ps w ere 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 NO X

In summary, many of the s tates 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 appr ove these regional haze SIP revisions that have relied
on the now - tem porary reductions from CAIR
. Although CAIR is currently in place, as a result of the Order by the for subject EGUs, as allowed unde r 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 vis ibility 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
r equired 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 reg ional haze program.

EME Homer Generation

4. The Transport Rule and Reg ional 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 SO 2 and NO X emissions that cross state lines and contribute to*** E.O. 12866 Review

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Page 9 of 57 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 allowanc es with other sources within the same program ( e.g . , ozone season NO X
In our proposal , we described a te chnical 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 th e 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 n oted 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 Ru le 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 th e 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 R aised in Public Comments*** E.O. 12866 Review

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Page 10 of 57 regional haz e 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 th e provisions in the R egional 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 r easonable 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 progre ss). 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 al lowing 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 poin t 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 b y the D.C. Circuit when it den ied the petitions for review of the EPA’s determination that CAIR provided for*** E.O. 12866 Review

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Page 11 of 57 greater reasonable progress than BART. While the commenter argues that the court’s decision “has been undermined by subsequent D.C. Circuit decisio ns,” 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), respective ly. 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 visi bility 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 th e D.C. Circuit’s conclusion that the a gency’s interpretation of th e 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 ‘in clude’ BART only ‘as may be necessary to make reasonable progress towa rd’ 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 (9 th

This c ommenter also argues that the EPA can exem pt sources from BART only if the EPA complies with the requirem ents of CAA § 169A(c)(1). T his provision of the CAA allows the EPA to exempt a source from the BART requirem ents, by rule, upon a determination that the source is not reasonably anticipated to cause or contribute to sign ificant visibility impairment. As the commenters note, the appropriate Federal Land Manager(s) must agree with the exemption before it can go in to 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.*** E.O. 12866 Review

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Page 12 of 57 We do not agree that the provisions governing exemptions to BART apply to our determination that the Transport Rule will make greater rea sonable progress than BART. Section 169A(b)(2) of the CAA requires each visibility SIP to contain “such e mission 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 languag e, 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 nationa l 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 bec ause 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 t he 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 R egional Haze Rule addressing the Transport Rule are codified at 40 CFR 51.308(e)(4). Nonet heless, 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). I n promulgating the Regional Haze R ule in 1999, the EPA explained that the “baseline date o f 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,” 7 0 FR 39143 . Any measure adopted after 2002 is*** E.O. 12866 Review

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Page 13 of 57 accordingly “surplus” under 40 CFR 51.308(e )(2)(iv). This is consistent with the discussion in the preamble to the 1999 Regional Haze R ule indicating that the regional haze program “is being promulgated in a manner that facilitates integration of emission management strategies for regional haze wit h the implementation of programs for [the 1997 ozone and PM 2.5 ] NAAQS.” 64 FR 35719. The EPA took this approach in the Regional Haze R ule to allow measures needed to attain the then new NAAQS to be “counted” as making “reasonable progress” toward the visib ility 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 S tay NAAQS. The EPA accordingly does not view the requirement in 308(e)(2)(iv) as limiting our abilit y to demonstrate that the Transport Rule reductions are surplus, as defined in the Regional Haze R ule
.

Several commenters contended that the EPA cannot rely on the Transport Rule as a BART alternative because implementatio n 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 st ay 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*** E.O. 12866 Review

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Page 14 of 57 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 regulati ons 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 participat e in the intersta te transport trading programs. Similarly, a regional haze

We also not e 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 bas ed 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
r elies on 308(e) (4) does not impose enf orceable requirements on EGUs. However, a state may take advantage of this provision only if it is subject to an underlying T ransport Rule FIP (or SIP approved as meeting the require ments of the t rading p rogram). 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 wi ll occur.

See

We do not agree with the comment that because the Transport Rule is subjec t 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 Tra nsport 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 consideration s , 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.*** E.O. 12866 Review

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Page 15 of 57 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 Rul e 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 R egional Haze Rule requirements in place for most states before the end of 2012. 3. Rationale for Dis approval 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 FIP s is not necessary. Commenters noted that CAIR remains in place and that SIPs that rely on CAIR are f ully consistent with our existing regulations. One commenter suggested that we revise the R egional 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 th e 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 t he reductions required by CAIR would be enforceable requirements that would also apply goi ng forward to 2018 and beyond. That assumption is no longer appropriate. We are issuing a limited disapproval rather than a full*** E.O. 12866 Review

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Page 16 of 57 disapproval, however, to allow the st ate to rely on the emission reductions from CAIR for so long as CAIR is in place. 4
. The Relationship between a Better

- than

- BART D etermination and Reasonable Progress Each state with a Cl ass I area is required to set goal s 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 prog ress 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 Transpo rt 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 R egional 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 goal s of each affected regional haze SIP. BART is one measure fo r 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.*** E.O. 12866 Review

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Page 17 of 57 The c ommenter’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 mischaracterize s the regional haze program. As noted above, the reasonable pr ogress 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 e missions 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 Ru le for source - specific BART. Whether such a revision meets the requirements of the R egional H aze R ule , 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 progres s. I II . 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 a nalysis did we rely on for o ur proposed d etermination?*** E.O. 12866 Review

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Page 18 of 57 the Technical Support Document (TSD)
. 10

1. Application of the Two

- Pronged Test T o 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.

T he two

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

- specific BART is set out in th e R egional H aze R ule 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 pro ng, 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 cons idered 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 s ource - specific BART. I n 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 co ntrol 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. F irst, we

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Page 19 of 57 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 “easte rn” 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 t he 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 with in 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 request ed 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 note d that give n 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

- prong ed test are met. 3 . Control Scenarios Examined The Transport Rule requires 28 states in the e astern half of the United States to reduce EGU SO 2 and NO X emissions that cross state lines and contribute to ground

- level ozone and fine particle pollution in other states. BART, on the other hand, is app licable nationwide and covers 26 industrial categor ies, 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 contr ol scenarios. The first control scenario examined*** E.O. 12866 Review

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Page 20 of 57 SO 2 and NO X emissions from all EGUs nationwide after the application of BART controls to all BART

eligible EGUs (“Nationwide BART”). In the second scenario, EGU SO 2 and NO X

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 + BART

elsewhere”). For the first prong of the test, t he “ Transport Rule + BART

- els ewhere” scenario was compared to the 2014 future year base case
. The comparison to the 2014 future year “Base C ase ” allows the EPA to ensure that the Transport Rule would not cause degradation in visibility from conditions predicted for the year 2014 in the absence of the Transport Rule , BART and CAIR.

2 and NO X 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 emissi on 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 SO 2 and 25 MW EGUs for NO X ,

T here 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 fina l 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 presump tive BART limits, we used them. These units and their emission limits are detailed i n 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*** E.O. 12866 Review

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Page 21 of 57 permit condition or a provision of a consent decree. In the “N ational BART” scenario, BART NO X

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 SO 2 and NO X from EGUs. The IPM projections of annual NO X and SO 2 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 pre scribed in the final Transport Rule published on August 8, 2011 , and the supplemental proposal published on July 11, 2011
. 12 We noted that o n October 14, 2011 , the EPA issued a proposed notice that would increase NO X and SO 2

5
. Air Quality Modeling Results budgets for certain states in acc o rdance 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 believe d 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 + BART

elsewhere” and “Nationwide BA RT” 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 40 662) are included in the “Transport Rule + BA RT

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Page 22 of 57 more detail in the TSD for the Transport Rule
. 13

W e proposed that the “ Transport Rule + BART

- elsewhere” control scenario passe d the first p rong 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 W e also proposed our determination that the “Transport Rule + BART

- elsewhere” alternati ve measure passed t he 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 p assed 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 satisfie s 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 int erpretation 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 d ocument which is included in the docket for this rule making
. Summary of the EPA Responses to Comments on the Technical Analysis

1. Comments Related to the Emissions Scenar ios 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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Page 23 of 57 As noted above, the EPA developed two emissions scenarios: a 2014 “Nationwide BART” scenario a nd a 2014 “Transport Rule + BART

- Elsewhere” scenario. Nationwide emissions were substantially lower under the “Transport Rule + BART

- Els e w here” 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 underestimate d the emissions reductions from BART, and overestimate d the emission reductions from the Transport Rule. These commenters raise issues generally with the use of presumptive BART limits in the “ Nationwide BART ” s cenario and question ed whether the EPA correctly applied the presumptive BART limits
. The EPA disagrees with commenters asserting that the pre sumptive 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, the se limits are re asonable and appropriate for use in assessing regional emissions red uctions from the BART scenario. This has been the EPA position since 2005. 71 FR 6061 9 (“the presumptions represent a reasonable estimate of a stringent case BART...because...they would be app lied 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 commen ts overestimate the emissions reductions that would be associated with case

- by

- case BART because the commenters ’ assertion s of “b est” technology for BART ignore other factors, including cost of control and resulting visibility improvement, that are critica l 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 SO 2 had been incorrectly applied in IPM
. Our review of these comments , which is presented i n 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*** E.O. 12866 Review

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Page 24 of 57 outputs, we conclude that many of these comments stemmed from a n app arent 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 pr esumptive limits did not apply. Other comments pertained to units that did not meet both t he 95 percent remova l efficiency and the 0.15 lb/MMB tu rate. For BART

affected units greater than or equal to 100 MW, the EPA’s IPM modeling required that they meet a SO 2 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 s ourc es 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 th an 0.15 lb/MMBt u (while meeting the 95 percent FGD removal efficien cy 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 sel ective catalytic reduction (SCR ). For all types of boilers other than cyclone units, the presumptive NO x limits in the EPA’s BART guidelines are based on ly on the use of current comb ustion control technology including low NO X 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, a s explained in detail in the preamble to the final Transport Rule, the EPA believes this is a reasonable and appropriate c ase 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 r eburning. 70 FR 39134.

2. Identification of Affected Class I A reas Under the R egional H aze R ule , the reasonable progress achieved by an alternative program in “affected Class I areas” is compared to the reasonable progress achieved by source

- specific BART
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Page 25 of 57 our proposal , the EPA requested comment on whether the “ a ffected Class I areas” should be considered to be (1) the 60 Class I area s 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 . T hese 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” scen ario to be superior to the T ransport 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
. T hese commenters asserted that th e EPA should not averag e 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

- prong ed test for determining a BART alternative is satisfied. The EPA does not agree that it is necessary to evaluate result s for a sub

region such as the 27 Class I area s 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

- prong ed test that has been upheld by the D.C. Circuit*** E.O. 12866 Review

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Page 26 of 57 Court. As long as the average vis ibility improves over the entire

3. O zone Season

- O nly 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 NO X emissions during May through September. C ommenters expressed co ncerns that while imposition of BART would require year

- round operation of NO X con trols, under the Transport Rule there would be no assurance that NO X

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 as sert ed that for these states the Transport R ule 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, w here a program results in the imposition of combustion controls such as low

- NO X burners and overfire air, the controls are an integral part of the operational design of the EGU . Accordingly, where combustion control s are installed in response to an ozone season
- only requirement, the EPA does not expect to see seasonal differences in the lb/MMBtu NO X emission rate.*** E.O. 12866 Review

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Page 27 of 57 O ur review of the IPM predictions of how EGUs are likely to comply with the Transport Rule indicated tha t in the “Transport Rule + BART

- elsewhere” scenario, NO X 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 (Arkans as, Louisiana, Mississippi and Oklahoma), the EPA projects that any additional NO X controls resulting from the Transport Rule would be combustion controls only. Furthermore, as explained above, for the “Nationwide BART” control scenario we applied the pres umptive NO X 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 NO X are based on the use of current combustion control technology. 14 70 FR 39134. For BART sources already equipped with post

combustion controls, we assumed under BART those controls would operate year

- round. Therefore , the “Nationwide BART” scenario would result in ge nerally 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 NO X 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 un less 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
. O ur analysis of the two scenarios appropriately considered this seasonal difference b y a ccount ing for higher NO X emissions from those Florida units outside of the ozone season when these controls are projected not to operate in the “Transport Rule + BART

elsewhere” scenario
. That is, our analysis assumed that post

- combustion NO X

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 w ould operate year - round under the “Nationwide BART” scenario and only during May through September in the*** E.O. 12866 Review

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Page 28 of 57 “Transport R ule + BART

- elsewhere” scenario. When we analyzed the overall regional emissions reductions under the two scenarios, this did not affect ou r 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 NO X in the “Transport Rule + BART

- elsewhere” scenario compared t o the “Nationwide BART” scenario has much less effect than the visibility improvement attributable to the very large relative decrease in SO 2
Finally, the EPA notes that in a previous rulemaking that established that CAIR was “better

than

- 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 u pon 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 prog ress than BART without conduct ing a new modeling analysis that would correct an error in the emissions for the “Nationwi d e 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 , appl y presumptive BART con trols 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 o f 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*** E.O. 12866 Review

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Page 29 of 57 two scenarios , in combination with additional alleged errors, the EPA cannot i ssue a final determination
un less and until a new analysis is conducted that tak es th e se 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 U nit 2 from the BART

- eligible inventory of 489 units would affect the average visibility improvement that serves as the basis f or the determination because the emission reductions from a single EG U in the BART control scenario would not change the outcome of the air quality or visibility modeling
. 15 In terms of total emission reductions, t he “Transport Rule + BART

- elsewhere” control scenario results in SO 2 emission reductions that are more than 800, 000 tons greater than the SO 2 emission reductions of the “National BART” control scenario. The omission of roughly 12,000 tons of SO 2

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 relativ ely 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, b ased 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 f rom 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
.

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Page 30 of 57 revisions to new unit set

- asides in Ar kansas, 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. T he EPA believes it is a r easonable expectation that these adjustments would lead to very small impacts on annual and 24

- hour PM 2.5
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 “ T ra nsport 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 p rogress towards regional haze goals than source

- specific BAR T 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 replaci ng 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 s tate 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 fina l rule with parallel proposal. The EPA has since received comments on the parallel proposal and will revi ew 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 conclusion s presented herein.*** E.O. 12866 Review

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Page 31 of 57 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 tha n 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 NO X is allowed to rely on our determinatio n that the Transport Rule makes greater reasonable progress than source

- specific BART for NO X

I V. R easonably Attributable Visibility Impairment (R AVI ) . The states to which this aspect of our final rule applies are Arkansas, Florida, Louisiana, Mississippi and Oklahoma.

A. What did the EPA p ropose 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 wh ere 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 regionally

averaged visibility improv ement. 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 o f a methodology for adjusting allowance allocations at a source which is required to install BART controls.*** E.O. 12866 Review

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Page 32 of 57 existing impairment and must be implemented. This commenter also pointed out that RAVI BART is reactive as it requires F LM to voluntarily take action to address an existing problem. A s 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

- than

BART explained that even under a BART a lternative “...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 ta ken under the RAVI provisions. The EPA first adopted such language in the 1999 R egional Haze Rule, 64 FR 35 757, and used it again in issuing regulations addressing our determination that CAIR provides for greater reasonable progress than BART, 70 FR 39 156, and again in issuing regulations addressing trading progr am 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 R egional Haze Rule , we are not adopting any c larifying interpretation at this time
. We expect at a later date to clarify the scope of the RAVI requirements through a rule
amen dment, 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 o n the Transport Rule. Department of the Interior, October 21, 2009. Whatever the form, we intend to pr ovide 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*** E.O. 12866 Review

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Page 33 of 57 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 e nhancement or source

specific 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 s cope 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. B ecause of these technical limitations at the time, the impact s from a source or small group of sources had to be fairly large to be “reasonably attributable
. ” Now, much small er source - specific impacts can be readily identified through the use of air qualit y models. ?*** E.O. 12866 Review

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Page 34 of 57 W e propos ed a limited disapproval of the regional haze SIPs th at 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 reg ional 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 propos e 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 infor mation 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 thei r 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 en forceable 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 progres s 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.*** E.O. 12866 Review

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Page 35 of 57 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 R egional Haze Rule. The
commen ter 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 regi onal 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 s tates 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 progr ess 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, P ennsylvania, South Carolina , Virginia and Texas. We are not finalizi ng the limited disapproval for Florida at this time because the s tate 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 i s 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 SO 2 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*** E.O. 12866 Review

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Page 36 of 57 the change in coverage und er the Transport Rule, and Florida’s continued progress toward submitting a SIP revision. VI. FIPs A. What d id the EPA p ropose We proposed FIPs to replace reliance on CAIR requirements with reliance on the trading programs of the Transport Rule as an alte rnative to BART for SO ?

2 and NO X emissions fro m 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 NO X

W e propos ed that t hese 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. T he 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 li mited 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 full y 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*** E.O. 12866 Review

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Page 37 of 57 As explained ab ove in section II.B .2 , w e do not agree that the EPA cannot rely on the Transport Rule because of the temporary st ay imposed by the D.C. Circuit. With respect to reliance on CAIR, a s 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 now temporary reductions from CAIR. Although CAIR is currently in place, as a result of the O rder 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 r evise 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 doe s not affect the earlier court ruling remanding CAIR to the EPA.

C. I n this action , the EPA is finalizing FIPs to replace rel iance 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). W e 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*** E.O. 12866 Review

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Page 38 of 57 officials that this action on our part is their preference. O ur adoptio n 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 revision s are due in 2018. However,
a t any time, s tates 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 t hese states did not receive a finding of failure to submit a r egional 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 deficienc ies 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. V II. Reg ulatory Text A. Based on our finding that the “Transport Rule + BART

- elsewhere” control scenario passes the two
- pronged test, we propos ed 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 appl y only to EGUs in the Transport Rule trading programs and only for the pollutants covered by the programs in each state. Accordingly, we propose d t o revise 40 CFR 51.308(e) (4) by essentially replacing the name of CAIR with the name of the Transport Rule. What d id the EPA p ropose ?

We also propos ed that a state that chooses to meet the emission re duction requirements of the Transport Rule by submitting a complete SIP revision substantively identical to the provisions of the*** E.O. 12866 Review

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Page 39 of 57 EPA trading program that is approved as meeting the requirements of §52.38 and/or §52.39 also need not require BART

- eligible E GUs 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 propos ed 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 R egulatory Text

See

VIII . Statutory and Executive Order Reviews 45 FR 80084 (December 2, 1980). The final regulatory text take s 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 ou t 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, Janu ary 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 Reductio n 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*** E.O. 12866 Review

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Page 40 of 57 The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulator y 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 numb er 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 requi rements 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*** E.O. 12866 Review

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Page 41 of 57 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 stat utory 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 go vernment 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 1 31 32 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 l ocal 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 hav e 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 Rul e 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 R egional H aze R ule . Furthermore, this rule does not affect the relations hip 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 propos ed action from tribal officials an d 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*** E.O. 12866 Review

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Page 42 of 57 The EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying to those regulatory actions that concern health or safety ri sks, 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 regul ating 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 inco nsistent 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 n ot 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 st andards bodies. The NTTAA directs the EPA to provide Congress, through OMB, explanations when the a gency decides not to use available and applicable voluntary consensus standards.*** E.O. 12866 Review

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Page 43 of 57 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, disp roportionately 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 whethe r there would be disproportionately high and adverse human health or environmental effects on minority and/or low income populations from this final rule. The PM 2.5 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 B ART

- 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 PM 2.5 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/ai rtransport . 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 rul e 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*** E.O. 12866 Review

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Page 44 of 57 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 aft er it is published in the Federal Register

I X. Statutory Authority . This action is not a “major r ule” 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 p art 51 Administrat ive practice and procedure, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen oxides, Ozone, Particulate matter, Regional haze, Reporting and recordkeeping requirements, Sulfur dioxide.*** E.O. 12866 Review

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Page 45 of 57 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.*** E.O. 12866 Review

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Page 46 of 57 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, op erate, 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 adop t 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 meetin g 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 th e reasons set forth in the preamble, part 52 of chapter I of title 40 of the Code of Federal Regulations is amended as follows:*** E.O. 12866 Review

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Page 47 of 57 PART 52 - [AMENDED]

3 . The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401, et seq Subp art 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 Haz e. The requirements of section 169A of the Clean Air Act are not met because t he 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 resp ect to emissions of NOx and SO 2
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 m easures for meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) with respect to emissions of NO X and SO 2 from electric generating units
. EPA has given limited approval and limited disapproval to the plan provisions addressing these requirements.*** E.O. 12866 Review

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Page 48 of 57 (b) Measures Addressing Limited Disapproval Associated with NO X

(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 sa tisfied by §52.584.

2 . The deficiencies associated with SO 2
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 NO X and SO 2

(b) Measures Addressing Limited Disapproval A ssociated 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 SO 2 . The deficiencies associated with SO 2
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.*** E.O. 12866 Review

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Page 49 of 57 (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 NO X and SO 2

(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) Meas ures Addressing Limited Disapproval Associated with SO 2 . The deficiencies associated with SO 2
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 SO 2

(b) Measures Addressing Limited Disapproval Associated with NOx. The deficiencies associated with NOx identified in EPA’s limited disapproval of the reg ional 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.*** E.O. 12866 Review

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Page 50 of 57 (c) Measures Addressing Limited Disapproval Associated with SO 2 . The deficiencies associated with SO 2
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 ha ze 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 o f NOx and SO 2
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 paragrap hs (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 meeti ng 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 r espect to emissions of NO X and SO 2 from electric generating units. EPA has given limited approval and limited disapproval to the plan provisions addressing these requirements.*** E.O. 12866 Review

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Page 51 of 57 (e) Measures Addressing Limited Disapproval Associated with NOx. The deficienc ies 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 SO 2 . The deficiencies associated with SO 2
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 requir ements of 40 CFR 51.308(d)(3) and 51.308(e) with respect to emissions of NOx and SO 2
Subpart AA - Missouri from electric generating units
. EPA has given limited approval and limited disapproval to the plan provisions addressing these requirements.

12. Sect ion 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 51.30 6 for protection of visibility in mandatory Class I Federal areas.

*****

( c ) Regional Haze . The requirements of section 169A of the Clean Air Act ar e not met because the regional haze plan submitted by Missouri on August 5, 2009 and supplemented on January 30, 2012*** E.O. 12866 Review

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Page 52 of 57 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 SO 2

( 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 SO 2 . The deficiencies a ssociated with SO 2
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 SO 2
Subpart KK - O hio 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 includ e 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*** E.O. 12866 Review

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Page 53 of 57 SO 2

(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 L imited Disapproval Associated with SO 2 . The deficiencies associated with SO 2
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 .

1 5 . 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 SO 2

(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) Measure s Addressing Limited Disapproval Associated with SO 2 . The deficiencies associated with SO 2
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.*** E.O. 12866 Review

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Page 54 of 57 1 6 . 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 51.30 6 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 a nd SO 2

(e) Measures Addressing Limited Disapproval Associated with NOx. The deficiencies associated with NOx iden tified 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 SO 2 . The deficiencies associated with SO 2
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.

1 7 . 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*** E.O. 12866 Review

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Page 55 of 57 for meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) with res pect to emissions of NOx and SO 2

****** 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 defi ciencies 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 SO 2 . The deficiencies associated with SO 2
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 A ct 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 Cl ean 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 SO 2 from electric generating units. EPA has given limited approval and limited disapproval to the plan provisions addressing these requirements.*** E.O. 12866 Review

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Page 56 of 57 ( d ) Measures Addressing Limited Disapproval Associated with NOx. The deficiencies associated with NOx identified in EPA’s limit ed 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 SO 2 . The deficiencies associated with SO 2
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.

1 9 . 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 51.30 5 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 SO 2

(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 generat ing units. EPA has given limited approval and limited disapproval to the plan provisions addressing these requirements.*** E.O. 12866 Review

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Page 57 of 57 (f) Measures Addressing Limited Disapproval Associated with SO 2 . The deficiencies associated with SO 2

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, 201 0, 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 51.30 5, 51.306, and 51.307 for protection of visibility in m andatory 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 SO 2 . The deficiencies associated with SO 2 identified in EPA’s limited disapproval of the regional haze plan submitted by West Virginia on June 18, 2008 are satisfied by § 52.2541.