```

[Federal Register Volume 77, Number 130 (Friday, July 6, 2012)]
[Rules and Regulations]
[Pages 40149-40169]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-15192]

[[Page 40149]]

Vol. 77

Friday,

No. 130

July 6, 2012

Part II

Environmental Protection Agency

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40 CFR Part 52

Approval, Disapproval and Promulgation of Implementation Plans; State 
of Nebraska; Regional Haze State Implementation Plan; Federal 
Implementation Plan for Best Available Retrofit Technology 
Determination; Final Rule

Federal Register / Vol. 77 , No. 130 / Friday, July 6, 2012 / Rules 
and Regulations

[[Page 40150]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R07-OAR-2012-0158; FRL-9689-2]

Approval, Disapproval and Promulgation of Implementation Plans; 
State of Nebraska; Regional Haze State Implementation Plan; Federal 
Implementation Plan for Best Available Retrofit Technology 
Determination

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing a partial approval and partial disapproval 
of a revision to the State Implementation Plan (SIP) for Nebraska, 
submitted by the State of Nebraska through the Nebraska Department of 
Environmental Quality (NDEQ) on July 13, 2011, that is intended to 
address regional haze for the first implementation period. This 
revision is intended to address the requirements of the Clean Air Act 
(CAA or Act) and EPA's rules that require states to prevent any future 
and remedy any existing anthropogenic impairment of visibility in 
mandatory Class I Areas (national parks and wilderness areas) caused by 
emissions of air pollutants located over a wide geographic area (also 
known as the ``regional haze'' program). States are required to assure 
reasonable progress toward the national goal of achieving natural 
visibility conditions in Class I areas. EPA is also promulgating a 
Federal Implementation Plan (FIP) relying on the Transport Rule to 
satisfy BART for sulfur dioxide (SO2) at one source to 
address deficiencies in the State's plan.

DATES:  Effective Date: This rule will become effective August 6, 2012.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R07-OAR-2012-0158. All documents in the docket 
are listed on the www.regulations.gov Web site. Although listed in the 
index, some information is not publicly available, i.e., Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically through www.regulations.gov or in hard 
copy at the Air Planning and Development Branch, Air and Waste 
Management Division, U.S. Environmental Protection Agency, Region 7, 
901 North 5th Street, Kansas City, Kansas 66101. EPA requests that if 
at all possible, you contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section for further information. The regional 
office's official hours of business are Monday through Friday, 8:30 to 
4:30, excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Mike Jay, Section Chief, Atmospheric 
Programs Section, Air Planning and Development Branch, U.S. 
Environmental Protection Agency, Region 7, 901 North 5th Street, Kansas 
City, Kansas 66101; by telephone at (913) 551-7460; or by email at 
jay.michael@epa.gov.

SUPPLEMENTARY INFORMATION: For purposes of this document, we are giving 
meaning to certain words or initials as follows:

a. The word Act or initials CAA mean or refer to the Clean Air Act.
b. The initials BART mean or refer to Best Available Retrofit 
Technology.
c. The initials CAIR mean or refer to the Clean Air Interstate Rule.
d. The initials CENRAP mean or refer to the Central Regional Air 
Planning Association.
e. The initials CSAPR mean or refer to Cross-State Air Pollution 
Rule. The name ``Cross-State Air Pollution Rule'' and the name 
``Transport Rule'' are used interchangeably and refer to the same 
program.\1\
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    \1\ Federal Implementation Plans to Reduce Interstate Transport 
of Fine Particulate Matter and Ozone, 76 FR 48208 (August 8, 2011).
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f. The initials EGUs mean or refer to Electric Generating Units.
g. The words we, us or our or the initials EPA mean or refer to the 
United States Environmental Protection Agency.
h. The initials DSI mean or refer to Dry Sorbent Injection.
i. The initials FGD mean or refer to Flue Gas Desulfurization. This 
technology may also be referred to as a ``scrubber''.
j. The initials FIP mean or refer to Federal Implementation Plan.
k. The initials FLMs mean or refer to Federal Land Managers.
l. The initials GGS mean or refer to Gerald Gentleman Station, 
operated by Nebraska Public Power District.
m. The initials IMPROVE mean or refer to Interagency Monitoring of 
Protected Visual Environments monitoring network.
n. The initials LNB mean or refer to low NOX burners.
o. The initials LTS mean or refer to Long-Term Strategy.
p. The initials NAAQS mean or refer to National Ambient Air Quality 
Standards.
q. The initials NCS mean or refer to Nebraska City Station, operated 
by Omaha Public Power District.
r. The words Nebraska and State mean the State of Nebraska unless 
the context indicates otherwise.
s. The initials NDEQ mean or refer to the Nebraska Department of 
Environmental Quality.
t. The initials NOX mean or refer to nitrogen oxides.
u. The initials NPCA mean or refer to National Parks Conservation 
Association.
v. The initials NPPD mean or refer to Nebraska Public Power 
District.
w. The initials NPS mean or refer to National Park Service.
x. The initials OFA mean or refer to overfire air.
y. The initials OPPD mean or refer to Omaha Public Power District.
z. The initials PM mean or refer to particulate matter.
aa. The initials PSAT mean or refer to Particulate Source 
Apportionment Technology.
bb. The initials RAVI mean or refer to Reasonably Attributable 
Visibility Impairment.
cc. The initials RHR mean or refer to the Regional Haze Rule.
dd. The initials RPG mean or refer to Reasonable Progress Goal.
ee. The initials RPO mean or refer to Regional Planning 
Organizations, such as CENRAP or WRAP.
ff. The initials SCR mean or refer to selective catalytic reduction.
gg. The initials SIP mean or refer to State Implementation Plan.
hh. The initials SNCR mean or refer to selective non-catalytic 
reduction.
ii. The initials SO2 mean or refer to sulfur dioxide.
jj. The initials TSD mean or refer to Technical Support Document.
kk. The initials URP mean or refer to Uniform Rate of Progress.
ll. The initials WRAP mean or refer to Western Regional Air 
Partnership.

Table of Contents

I. Background
II. Final Action
III. Public Comments and EPA Responses
IV. Regulatory Text
V. Statutory and Executive Order Reviews

I. Background

    On March 2, 2012 (77 FR 12770), EPA published a notice of proposed 
rulemaking for the State of Nebraska, proposing to approve a portion of 
Nebraska's regional haze plan for the first implementation period 
(through 2018), and proposing to partially approve and partially 
disapprove those portions addressing the requirements for BART and the 
long-term strategy. EPA's proposed rulemaking also proposed a FIP 
relying on the Transport Rule to satisfy BART for SO2 at 
Nebraska Public Power District, Gerald Gentleman Station, Units 1 and 
2, to address the disapproval. A detailed explanation of the CAA's 
visibility requirements and the Regional Haze Rule \2\ as it applies to 
Nebraska was provided in the proposed rulemaking and will not be 
restated here. EPA's rationale for proposing

[[Page 40151]]

partial approval and partial disapproval of the Nebraska regional haze 
plan and for proposing the FIP was also described in detail in the 
proposal, and is further described in this final rulemaking.
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    \2\ 40 CFR 51.300-308.
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    We requested comments on all aspects of our proposed action and 
initially provided a 30-day public comment period, with the public 
comment period closing on April 2, 2012. On April 4, 2012, a notice was 
published extending the public comment period to May 2, 2012, and 
providing notice of a public hearing to be held on April 18, 2012, if 
requested by April 9, 2012.\3\ EPA received two requests for the public 
hearing, from NDEQ by letter dated March 16, 2012, and from NPCA by 
letter dated April 9, 2012, however, both requests were later withdrawn 
by letters dated March 29, 2012, and April 11, 2012, respectively.
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    \3\ 77 FR 20333 (April 4, 2012). EPA also provided information 
about the public comment period extension and notice of public 
hearing on its Web site on March 30, 2012, in advance of the Federal 
Register publication. EPA previously noted in the docket that the 
Web site notice was posted on April 6, 2012, which was incorrect.
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II. Final Action

    In today's action, EPA is finalizing a partial approval and partial 
disapproval of Nebraska's regional haze SIP, submitted on July 13, 
2011. EPA is partially approving the majority of the provisions in the 
SIP revision as meeting some of the applicable regional haze 
requirements set forth in sections 169A and 169B of the Act and in the 
Federal regulations codified at 40 CFR 51.300-308, and the requirements 
of 40 CFR Part 51, Subpart F and Appendix V. EPA is disapproving the 
SO2 BART determinations for Units 1 and 2 of GGS because 
they do not comply with EPA's regulations. EPA is also disapproving 
Nebraska's long-term strategy insofar as it relied on the deficient 
SO2 BART determination at GGS. EPA is finalizing a FIP 
relying on the Transport Rule as an alternative to BART for 
SO2 emissions from GGS to address these deficiencies.\4\ 
Today's action finalizes our approval of the other portions of the SIP, 
as described in the proposal. However, because EPA's basis for approval 
of Nebraska's SIP as satisfying the requirements of the Regional Haze 
Rule with respect to BART for NOX for GGS Units 1 and 2 has 
been modified in light of comments received on the State's 
determination, EPA provides additional explanation below and in the 
response to comments in section III of this notice.
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    \4\ EPA notes that Nebraska may, at any time: (1) Submit a 
revision to their regional haze SIP incorporating the requirements 
of the Transport Rule at which time EPA will propose to approve the 
SIP and withdraw the FIP we are finalizing in today's action; (2) 
submit a complete SIP revision substantively identical to the 
provisions of the EPA trading program that is approved as meeting 
the requirements of 40 CFR 52.39, along with a revision to their 
regional haze SIP incorporating those requirements, at which time 
EPA will withdraw the FIP we are finalizing in today's action; or 
(3) Nebraska may submit a new SIP revision addressing specific BART 
SO2 controls for GGS, in which case EPA will assess it 
against the CAA and regional haze rule requirements as a possible 
replacement for the FIP.
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    EPA received a number of comments on the proposed rulemaking 
regarding Nebraska's NOX BART determination for GGS Units 1 
and 2. In its SIP submission, Nebraska determined that NOX 
BART for GGS Units 1 and 2 was LNB and OFA at the presumptive BART 
NOX emission rate of 0.23 lbs/MMBtu. The commenters 
contended that the State's estimated costs of SCR were inflated, 
resulting in artificially high cost effectiveness numbers, and that the 
deciview improvement from the use of SCR would be significant, 
particularly when a higher control efficiency (and lower emission 
limit) is considered. The commenters added that when the cost 
effectiveness and deciview numbers are adjusted, the resultant 
incremental cost effectiveness of SCR over LNB and OFA and the cost per 
deciview ($/dv) are below Nebraska's own thresholds, and it is 
therefore reasonable to determine that SCR is BART for GGS Units 1 and 
2.
    In response to these comments, EPA conducted further analysis of 
the costs of SCR at GGS. EPA found that Nebraska made some cost 
assumptions which were not in accordance with EPA's Cost Control Manual 
\5\ which resulted in inflated cost estimates. When EPA's adjusted cost 
estimates based on the manual are used, the resultant incremental cost 
effectiveness and $/dv are indeed below Nebraska's own thresholds for 
what it considered reasonable for BART controls. In addition, the cost 
effectiveness and deciview improvement are within a range that many 
states and EPA have found to be reasonable for NOX BART 
controls. Therefore, as a result of the comments received and 
additional analysis performed, it appears that Nebraska's 
NOX BART determination of LNB and OFA at a rate of 0.23 lbs/
MMBtu for GGS Units 1 and 2, by itself, is not supported by the record. 
However, on August 8, 2011, EPA finalized the Transport Rule and 
FIP.\6\ The Transport Rule, as promulgated, requires 28 states in the 
eastern portion of the United States, including Nebraska, to 
significantly improve air quality by controlling EGU SO2 and 
NOX emissions that cross state lines and significantly 
contribute to ground-level ozone and/or fine particle pollution in 
other states. Nebraska is subject to the Transport Rule and FIP for 
NOX at 40 CFR 52.1428. On June 7, 2012, EPA finalized its 
finding that the trading programs in the Transport Rule achieve greater 
reasonable progress towards the national goal of achieving natural 
visibility conditions in Class I areas than source-specific EGU BART in 
those states covered by the Transport Rule.\7\ Given the emission 
reductions provided by the NOX limits associated with 
Nebraska's NOX BART determination of LNB and OFA for GGS 
Units 1 and 2, which strengthen the Nebraska SIP, in conjunction with 
the existing Transport Rule FIP which already applies to Nebraska and 
has been determined to provide greater reasonable progress than BART, 
in today's action, EPA is finalizing its proposed approval of 
Nebraska's SIP as satisfying the requirements of the Regional Haze Rule 
with respect to BART for NOX.
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    \5\ EPA Air Pollution Control Cost Manual, Sixth Edition, EPA/
452/B-02-001, January 2002.
    \6\ See Federal Implementation Plans to Reduce Interstate 
Transport of Fine Particulate Matter and Ozone, 76 FR 48208 (August 
8, 2011).
    \7\ See Regional Haze: Revisions to Provisions Governing 
Alternatives to Source-Specific BART Determinations, Limited SIP 
Disapprovals, and Federal Implementation Plans, 77 FR 33642 (June 7, 
2012).
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III. Public Comments and EPA Responses

    During the public comment period we received written comments from 
the National Park Service; Omaha Public Power District; Nebraska 
Association of Resources Districts, on behalf of several Natural 
Resources Districts; Nebraska Department of Environmental Quality; the 
Nebraska Attorney General; Nebraska Public Power District; National 
Parks Conservation Association on behalf of themselves, Nebraska 
Environmental Action Coalition, Plains Justice, and Sierra Club; and 35 
similar letters from individuals. We have summarized the comments and 
provided our responses below. Full copies of the comment letters are 
available in the docket for this rulemaking. Comments and responses 
below are grouped by subject rather than by commenter.

A. Comments Regarding EPA's Action

    Comment 1: We received identical comment letters from thirty-five 
individuals encouraging more emission controls on Nebraska sources in 
order to address haze in the South Dakota National Parks. The letters 
point out that at the current rate, the South Dakota Class I areas will 
not meet the goal of

[[Page 40152]]

natural visibility conditions for more than two hundred years. The 
commenters encourage EPA to require controls at Gerald Gentleman 
Station and Nebraska City Station specifically.
    Response 1: EPA appreciates the comments, but is partially 
approving Nebraska's regional haze SIP and using the trading programs 
of the Transport Rule as a BART alternative for the reasons stated in 
the proposal and in other responses to comments in this action.
    Comment 2: One commenter referenced and incorporated its January 
21, 2011, comments to Nebraska on its draft regional haze plan. The 
commenter stated that it is incorporating these comments by reference 
because these comments are ``inherently related'' to this action.
    Response 2: In today's rule, EPA is taking final action on the 
partial approval and partial disapproval of Nebraska's regional haze 
SIP. EPA is also taking final action on a FIP relying on the Transport 
Rule to satisfy BART for SO2 at one source to address the 
disapproval. The comments referenced by the commenter were made to the 
State of Nebraska in a separate action. Nebraska timely responded to 
these comments. All of the comments that were incorporated by reference 
are addressed in today's action in EPA's response to comments. A copy 
of Nebraska's response can be found in the docket to this action as 
Appendix 3.1 to Nebraska's SIP submission.

B. Comments Regarding EPA and State Roles

    Comment 3: We received several comments questioning whether we have 
CAA authority to disapprove Nebraska's BART determinations and LTS and 
determine BART through a FIP. The commenters generally contended that 
Nebraska followed the CAA and EPA's rules in making the BART and LTS 
determinations for the regional haze SIP. The commenters stated that 
Nebraska followed the statutory and regulatory process, and that EPA is 
exceeding its authority in substituting its judgment regarding 
appropriate BART for GGS. One commenter stated that EPA has no record 
upon which to support its proposed action to substitute its judgment 
for NDEQ. The commenters also stated that EPA cannot ``arbitrarily and 
capriciously'' substitute its own determination without a showing that 
Nebraska's regional haze SIP failed to comply with the requirements of 
the CAA.
    Response 3: Congress directed in section 110 of the CAA that states 
would take the lead in developing implementation plans, but balanced 
that decision by requiring EPA to review the plans to determine whether 
a SIP meets the requirements of the CAA. EPA's review of SIPs is not 
limited to a ministerial type of ``rubber-stamping'' of a state's 
decisions. EPA must consider not only whether the state considered the 
appropriate factors, but also whether the state acted reasonably in 
doing so. EPA ensures that such authority is reasonably exercised. EPA 
has the authority to issue a FIP either when EPA has made a finding 
that the state has timely failed to submit a SIP or where EPA has found 
a SIP deficient. Here, EPA is approving as much of the Nebraska SIP as 
possible and adopting a FIP only to fill the remaining gap. Our action 
today is consistent with the statute.
    As explained in the proposal, the State's SO2 BART 
determination for GGS is not approvable for a number of reasons, 
including errors in Nebraska's cost analysis for FGD controls, the 
reasonableness of the costs of controls, the significant visibility 
improvement achieved as a result of installing FGD or DSI, and improper 
rejection of DSI. See 77 FR 12770, 12780. We have determined that the 
faults in Nebraska's analysis were significant enough that they 
resulted in BART determinations for SO2 that were both 
unreasoned and unjustified, and therefore are not approvable.
    In the absence of an approvable BART determination in the SIP for 
SO2 for GGS, we are obliged to promulgate a FIP to satisfy 
the CAA requirements. We are also required by the terms of a consent 
decree with NPCA, entered with the U.S. District Court for the District 
of Columbia to ensure that Nebraska's CAA requirements for regional 
haze are finalized by June 15, 2012. Because we have found the State's 
SIP submission does not adequately satisfy the BART requirements in 
full and because we have previously found that Nebraska failed to 
timely submit this SIP submission, we have not only the authority, but 
a duty to promulgate a FIP that meets these requirements. Our action in 
large part approves the regional haze SIP submitted by Nebraska; the 
disapproval of the SO2 BART determination for GGS and the 
imposition of a FIP does not encroach on State authority. This action 
only ensures that CAA requirements are satisfied using our authority 
under the CAA. We note that Nebraska may submit a new SIP revision 
addressing the issue of SO2 controls for GGS, in which case 
we will assess it against CAA and RHR requirements as a possible 
replacement for the FIP. See also EPA's response to comments 32, 33, 
and 34, which are incorporated by reference.
    Comment 4: Two commenters argued that our proposal is inconsistent 
with the decision of the D.C. Circuit in Am. Corn Grower's Ass'n v. 
EPA, 291 F.3d 1 (D.C. Cir. 2002). The commenters contended that 
language in the decision affirms its views regarding state authority 
and EPA's lack of authority in regulating the problem of regional haze. 
In particular, the American Corn Growers decision had described the CAA 
as ``giving the states broad authority over BART determinations.'' Id. 
at 8.
    Response 4: We disagree that our action is inconsistent with the 
American Corn Growers decision. The State's analysis of BART for 
SO2 at GGS was flawed due to reasons discussed in the 
proposal and elsewhere in this notice. We have determined these issues 
resulted in non-approvable SO2 BART determinations for GGS 
Units 1 and 2. We recognize the State's broad authority over BART 
determinations, and recognize the State's authority to attribute weight 
and significance to the statutory factors in making BART 
determinations. As a separate matter, however, a state's BART 
determination must be reasoned and based on an adequate record. 
Although we have largely approved the State's regional haze SIP, we 
cannot agree that CAA requirements are satisfied with respect to the 
SO2 BART determination at GGS.
    Comment 5: One commenter generally asserted that we lack authority 
to disapprove Nebraska's regional haze SIP because of past cases. The 
commenter cites Train v. NRDC, 421 U.S. 60, 79 (1975), Commonwealth of 
Vir. v. EPA, 108 F.3d 1397 (D.C. Cir. 1997), and Bethlehem Steel Corp. 
v. Gorusch, 742 F.2d 1028 (7th Cir. 1984). Pursuant to these cases, the 
commenter argued that we cannot question the wisdom of a state's 
choices or require particular control measures if plan provisions 
satisfy CAA standards.
    Response 5: States are required by the CAA to address the BART 
requirements in their SIP. Our disapproval of the SO2 BART 
determination in Nebraska's RH SIP is authorized under the CAA because 
the State's SO2 BART determination for GGS does not satisfy 
the statutory criteria. The State's analysis of BART for SO2 
at GGS was flawed due to reasons discussed in the proposal and 
elsewhere in this notice. While states have authority to exercise 
different choices in determining BART, the determinations must be 
reasonably supported. Nebraska's errors were significant enough that we 
cannot

[[Page 40153]]

conclude the State determined BART for SO2 at GGS according 
to CAA standards. The cases cited by the commenter stress important 
limits on EPA authority in reviewing SIP submissions, but our 
disapproval of this SO2 BART determination for GGS has an 
appropriate basis in our CAA authority, and does not conflict with 
these limitations.
    Comment 6: One commenter cited to section 169A(g)(2) to support its 
contention that the State of Nebraska has ``primary authority,'' where 
EPA has no authority or lesser authority. Section 169A(g)(2) begins, 
``in determining [BART] the State (or the Administrator in determining 
emissions limitations which reflect such technology) shall take into 
consideration'' several requisite statutory factors. The commenter 
placed special emphasis on the references to the ``state'' in these 
provisions and contends that the plain language of the statute provides 
that states, and not EPA, have the authority to determine BART.
    Response 6: We agree that states have authority to determine BART, 
but we disagree with commenter's assertions that EPA has no authority 
or lesser authority to determine BART when promulgating a FIP. As the 
parenthetical in section 169A(b)(2)(A) indicates, the Administrator has 
the authority to determine BART ``in the case of a plan promulgated 
under section 7510(c).'' In other words, the Administrator has explicit 
authority to determine BART when promulgating a FIP. Our BART 
determination utilizes our authority under 40 CFR 51.308(e)(3) to rely 
on an emissions trading program, here, the Transport Rule, which 
provides greater reasonable progress towards improving visibility than 
source-specific BART. We disagree that the language of the CAA limits 
our authority to determine BART in the case of a FIP. See also EPA's 
responses to comments 3, 5, and 7, which are incorporated by reference.
    Comment 7: One commenter expressed its view that its arguments were 
reinforced by legislative history of the 1977 CAA amendments. The 
commenter referred to statements of Senator Edmund Muskie regarding the 
conference agreement on the provisions for visibility protection in 
those amendments. Senator Muskie stated that under the conference 
agreement the state, ``not the Administrator,'' identifies BART-
eligible sources and determines BART. 123 Cong. Rec. 26854 (August 4, 
1977). The commenter also noted that Am. Corn Growers Ass'n v. EPA 291 
F.3d 1 (D.C. Cir. 2002) used legislative history, including the 
Conference Report on the 1977 amendments, when the Court had 
invalidated past regulatory provisions regarding BART for constraining 
state authority. The Court stated that the Conference report confirmed 
that Congress ``intended the states to decide which sources impair 
visibility and what BART controls must apply to those sources.''
    Response 7: We agree that the CAA places the requirements for 
determining BART for BART-eligible sources on states. As discussed 
previously, the CAA also requires the Administrator to determine BART 
in the absence of an approvable determination from the state. Because 
Nebraska's BART determination for SO2 for GGS does not 
conform to the RHR and the BART Guidelines \8\ and is not approvable, 
we are authorized and at this time required to promulgate a FIP.
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    \8\ The BART Guidelines: 40 CFR Part 51, Appendix Y.
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    Comment 8: One commenter cited to 169A(b) stating that this 
provision only allows for EPA to issue guidelines with technical and 
procedural guidance for determining BART but for the actual 
implementation plan to be developed by each state (except for fossil-
fueled power plants with capacity that exceeds 750 megawatts (MW)). The 
commenter stated that the CAA does not provide EPA the authority to 
disapprove a BART decision or require specific controls for BART.
    Response 8: States shoulder significant responsibilities in CAA 
implementation and effectuating the requirements of the RHR. EPA has 
the responsibility of ensuring that state plans, including regional 
haze SIPs, conform to CAA requirements. None of the CAA provisions 
cited by commenters change our conclusion that we have authority and 
duty to issue a FIP to satisfy BART requirements given that Nebraska's 
regional haze SIP is not fully approvable. Our inability to approve the 
State's BART determination for SO2 for GGS means we must 
follow through on our non-discretionary duty to promulgate a FIP.
    Comment 9: Several commenters who argued that the plain language of 
the CAA requires that states are the primary or only BART determining 
authorities have also cited our preamble language from past Federal 
Register publications that they believe reinforces their contention. 
For example, several commenters cited 70 FR 39104 at 39107, which reads 
in part, ``the State must determine the appropriate level of BART 
control for each source of BART.'' One commenter also cited 70 FR 39104 
at 31958 which provides that the ``State will determine a `best system 
of continuous emission reduction' based upon its evaluation of these 
factors.'' One commenter cited to 70 FR 39104 at 39170-39171 stating 
the State has discretion to determine the order in which it should 
evaluate control options for BART. One commenter also commented that 
the CAA provides Nebraska with great discretion to balance the five 
statutory factors and that states are free to determine the weight and 
significance assigned to each factor.
    Response 9: We agree that states are assigned statutory and 
regulatory authority to determine BART and that many past EPA 
statements have confirmed state authority in this regard. Although the 
states have the freedom to determine the weight and significance of the 
statutory factors, they have an overriding obligation to come to a 
reasoned determination. As detailed in our proposal and the supporting 
TSD, Nebraska's SO2 BART determination for GGS was based on 
flawed analysis and an unreasonable conclusion. Because the State's 
SO2 BART determination for GGS is not approvable, we are 
obligated to step into the shoes of the State and arrive at our own 
BART determinations.

C. Comments Regarding Public Notice

    Comment 10: One commenter insinuated that EPA held a meeting with 
NDEQ and local stakeholders in North Platte, Nebraska on April 12, 
2012, ``in lieu'' of a public hearing.
    Response 10: The April 12, 2012, meeting was not held ``in lieu'' 
of a public hearing. As the commenter notes, NDEQ requested a public 
hearing on March 16, 2012, and then on April 2, 2012, withdrew the 
request for public hearing. As required by section 307(d) of the CAA, 
EPA provided the opportunity for public hearing on its proposed FIP; 
although two parties initially requested a public hearing, both 
requests were withdrawn. Because the requests were withdrawn and no 
other timely requests for public hearing were received, EPA canceled 
the public hearing that had been scheduled to take place. EPA's notes 
from the April 12, 2012, meeting are available in the docket for this 
action.
    Comment 11: NPPD submitted comments expressing concerns about EPA's 
cancellation of the public hearing and decision to have a ``private'' 
meeting with NPCA as a substitute for the public hearing. NPPD 
requested to attend the meeting between EPA and NPCA, and stated that 
not allowing NPPD and other interested parties to attend the meeting 
deprived them of their due process rights in this matter.

[[Page 40154]]

    Response 11: Due to the time sensitive nature of this comment and 
request, EPA responded to NPPD by letter on April 17, 2012. For 
completeness of our response to comments in today's action, EPA 
summarizes its response here. Copies of NPPD's April 13, 2012, letter 
and EPA's April 17, 2012, letter are included in the docket for this 
rulemaking. EPA disagrees with the suggestion that all necessary public 
notice procedures were not followed by EPA, or that any parties were 
deprived of their due process rights. During the public comment period, 
EPA received two requests for a public hearing, one from NDEQ and one 
from NPCA, both of which were subsequently withdrawn by the 
requestors.\9\ No other requests for the public hearing were received 
during the prescribed time frame, including from NPPD, and therefore, 
EPA cancelled the public hearing.
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    \9\ Copies of all letters requesting a public hearing, and later 
withdrawing those requests, as well as summaries of all meetings, 
are provided in the docket for EPA's rulemaking, Docket No. EPA-R07-
OAR-2012-0158.
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    NDEQ and NPCA both requested to meet with EPA regarding our 
proposed rule. The meetings with NDEQ and NPCA were not ``public 
meetings'' and no public notice of these meetings was provided. EPA 
did, however, provide a summary of the meetings for the docket.\10\ EPA 
meets with various stakeholders regarding proposed actions on a routine 
basis. EPA met with NPCA representatives to listen to their interests 
just as EPA met with NPPD at the meeting hosted by NDEQ. NPPD provided 
no specific basis for its contention that it was denied ``due 
process'', and it submitted extensive comments (46 pages) on the 
proposed rule.
---------------------------------------------------------------------------

    \10\ A summary of the meeting with NPCA was provided for the 
docket prior to the time that NPPD submitted its comments on the 
proposed rule.
---------------------------------------------------------------------------

D. Comments About the Benefits of Regional Haze Pollution Controls

    Comment 12: One commenter noted that pollutants that cause 
visibility impairment also harm public health. Specifically, the 
commenter asserted the following: ``Regional haze pollutants include 
NOX, SO2, PM, ammonia, and sulfuric acid. 
NOX is a precursor to ground level ozone, which is 
associated with respiratory diseases, asthma attacks, and decreased 
lung function. In addition, NOX reacts with ammonia, 
moisture, and other compounds to form particulates that can cause and 
worsen respiratory diseases, aggravate heart disease, and lead to 
premature death. Similarly, SO2 increases asthma symptoms, 
leads to increased hospital visits, and can form particulates that 
aggravate respiratory and heart diseases that cause premature death. PM 
can penetrate deep into the lungs and cause a host of health problems, 
such as aggravated asthma, chronic bronchitis, and heart attacks.''
    The commenter cited to EPA's estimates that in 2015, full 
implementation of the RHR nationally will prevent 1,600 premature 
deaths, 2,200 non-fatal heart attacks, 960 hospital emissions, and over 
one million lost school and work days. The RHR will result in health 
benefits valued at $8.4 to $9.8 billion annually.
    The commenter also stated that haze-causing emissions harm 
terrestrial and aquatic plants and animals, soil health and moving and 
stationary water bodies by contributing to acid rain, ozone formation, 
and nitrogen deposition. The commenter also stated that haze-causing 
pollutants are precursors to ozone. The commenter stated that ground-
level ozone formation impacts plants and ecosystems in a variety of 
ways.
    Response 12: We appreciate the commenter's concerns regarding the 
negative human health and ecosystem impacts of emissions from the units 
at issue. We agree that the same NOX emissions that cause 
visibility impairment also contribute to the formation of ground-level 
ozone, which has been linked with respiratory problems, aggravated 
asthma, and even permanent lung damage. We also agree that 
SO2 emissions that cause visibility impairment also 
contribute to increased hospital visits and can form particulates that 
aggravate respiratory and heart diseases, and that both NOX 
and SO2 cause acid rain. We agree that the same emissions 
that cause visibility impairment can form fine PM and be inhaled deep 
into lungs, which can cause respiratory problems, decreased lung 
function, aggravated asthma, bronchitis, and premature death. We agree 
that these pollutants can have negative impacts on ecosystems, damaging 
plants, trees, and other vegetation (including crop yields), which 
could have a negative effect on species diversity in our ecosystems. 
Therefore, although our action concerns visibility impairment, we note 
the potential for significant improvements in human and ecosystem 
health.
    Comment 13: We received one comment that the proposed action would 
help the economy in a variety of ways. The commenter stated that 
tourism in national parks provides Federal and local private sector 
revenue and provides hundreds of thousands of jobs. The commenter 
stated that national park tourism is a critical component to the 
economy of the Midwest and deterioration in improvement to visibility 
at a national park can reduce tourism to those parks. The commenter 
also stated that requiring facilities to install controls also creates 
jobs.
    Response 13: Although we did not consider the potential positive 
benefits to local economics in making our decision today, we do 
acknowledge that improved visibility may have a positive effect on 
tourism and local jobs.\11\ This action may also result in significant 
improvements in human health. Improved human health can reduce 
healthcare costs and reduce the number of missed school and work days 
in the community.
---------------------------------------------------------------------------

    \11\ EPA has addressed employment impacts of the Transport Rule. 
76 FR 28208, 48317-48319.
---------------------------------------------------------------------------

E. Comments Regarding Reasonable Progress Goals and Long-Term Strategy

    Comment 14: One commenter states that the development of the LTS is 
the responsibility of each affected state, not the EPA, and the state 
is only required to ensure that the RPG of the state containing the 
Class I area is met. EPA proposed disapproval of Nebraska's LTS on the 
basis that it relied on the deficient BART determination for 
SO2 at GGS. The commenter contends that this rationale is 
not consistent with the Federal requirements, and that Nebraska 
adequately addressed all requirements for the LTS set forth at 40 CFR 
51.308(d)(3) in its regional haze SIP submission, including 
consultation with South Dakota and other affected states, tribes, and 
FLMs on coordinated emission management strategies; provision of all 
applicable technical information pertaining to the apportionment of 
emission reduction obligations, including the baseline emissions 
inventory; identification of all anthropogenic sources of visibility 
impairment considered by the State; and consideration of the factors at 
40 CFR part 51.308(d)(3)(v). Another commenter maintains that because 
Nebraska's SO2 BART determination was not defective, 
Nebraska's LTS should be approved.
    Response 14: As further explained elsewhere in today's action, 
Congress directed in section 110 of the CAA that states would take the 
lead in developing implementation plans, but balanced that decision by 
requiring EPA to review the plans to determine whether a SIP meets the 
requirements of the CAA. EPA must consider not only whether the State 
considered the appropriate factors in development of its LTS, but also 
whether the State acted reasonably in doing so. The commenter correctly 
cites

[[Page 40155]]

the factors that must be considered in development of the LTS, and 
notes that EPA largely approved the LTS, except for that portion that 
relies on what the EPA proposed was the State's flawed SO2 
BART determination for GGS. EPA disagrees with the commenter's 
statements that this does not provide a basis for disapproval of a 
portion of the Nebraska's LTS. Section 169A of the CAA and the EPA's 
implementing regulations require states to establish LTS for making 
reasonable progress towards the national goal of achieving natural 
visibility conditions in Class I areas. Implementation plans must also 
give specific attention to certain stationary sources. Specifically, 
section 169A(b)(2)(A) of the CAA requires states to revise their SIPs 
to contain such measures as may be necessary to make reasonable 
progress towards the natural visibility goal, including a requirement 
that certain categories of existing major stationary sources built 
between 1962 and 1977 procure, install, and operate BART. Because EPA 
cannot fully approve SO2 BART for GGS, we cannot fully 
approve a LTS that relies on it.
    For the reasons cited elsewhere in today's action, EPA disagrees 
that Nebraska's SO2 BART determination for GGS was 
reasonable and in accordance with 40 CFR 51.308(e) and the BART 
Guidelines. Therefore, in this action, EPA appropriately disapproves 
Nebraska's LTS only insofar as it relied upon the improper 
SO2 BART determination for GGS. See also EPA's response to 
comment 3, which is incorporated by reference.
    Comment 15: Several commenters point out what they contend are 
inconsistencies between EPA's approval of the South Dakota RPGs for 
Badlands and Wind Cave Class I areas,\12\ and today's action. The 
commenters state that Nebraska's work through CENRAP and direct 
consultation with South Dakota as well as other states, tribes and FLMs 
ensured that all entities were fully informed of the proposed decisions 
in the Nebraska regional haze SIP. If additional measures were 
necessary to ensure that South Dakota met their RPGs, it would have 
been appropriate for either (1) South Dakota to request the additional 
measures from Nebraska, or (2) EPA to disapprove the LTS of South 
Dakota and for South Dakota to notify Nebraska that additional measures 
were needed. However, EPA approved the South Dakota regional haze SIP 
in its entirety. The commenter asserts that the EPA region with 
oversight over a Class I area is tasked with ensuring that the 
applicable state's RPGs are sufficient and practical. If that state's 
RPGs are not sufficient or practical, each state participating in the 
regional planning process for the applicable Class I area would be 
required to re-evaluate their LTS and make appropriate revisions to 
ensure they met their apportionment of emission reduction obligations 
necessary for achieving reasonable progress. The commenters contend 
that through its approval of the South Dakota regional haze plan, EPA 
verified that each state involved in the regional planning process, 
including Nebraska, met their apportionment of emission reductions, 
without requiring any implementation of FGD at GGS. Another commenter 
asserts that the emission projections used in the WRAP regional 
modeling clearly assumed scrubbers operated at 0.15 lbs/MMBtu would be 
installed to meet SO2 BART at GGS, and because our proposal 
relied on the Transport Rule in lieu of source-specific BART for 
SO2 at GGS, South Dakota will not likely meet its reasonable 
progress goals at Badlands and Wind Cave National Parks, which already 
fall short of the uniform rate of progress towards natural background 
visibility conditions. Commenters also contend that these same issues 
apply to Colorado, Oklahoma, Missouri, and Arkansas, which also relied 
on RPO modeling and assumed presumptive SO2 BART emission 
reductions at GGS, and at a minimum, GGS should meet presumptive BART 
emission levels.
---------------------------------------------------------------------------

    \12\ 77 FR 24845 (April 26, 2012).
---------------------------------------------------------------------------

    Response 15: EPA disagrees that inconsistencies exist between 
today's action and EPA's approval of South Dakota's RPGs, and disagrees 
that inclusion of presumptive BART for purposes of air quality modeling 
necessitates a source-specific SO2 BART FIP for GGS.
    South Dakota, as a state hosting Class I areas, established goals 
for Badlands and Wind Cave National Parks that provide for reasonable 
progress towards achieving natural visibility conditions, in accordance 
with 40 CFR 51.308(d)(1). As set forth in EPA's proposed and final 
approval of South Dakota's regional haze SIP,\13\ South Dakota 
constructed its uniform rate of progress and set the RPGs consistent 
with the requirements of the RHR.
---------------------------------------------------------------------------

    \13\ EPA's proposed approval of South Dakota's regional haze SIP 
is found at 76 FR 76646 (Dec. 8, 2011) and EPA's final approval is 
found at 77 FR 24845 (April 26, 2012).
---------------------------------------------------------------------------

    To set RPGs, states looked to the air quality modeling performed by 
the RPOs. The modeling assumed emission reductions from each state 
based on extensive consultation among the states as to appropriate 
strategies for addressing haze. The air quality models used to support 
the regional haze SIPs are extremely complex, and due to the time 
consuming nature of performing the modeling, this work was performed 
early in the process. The emissions projections by the RPOs, relied 
upon in the air quality modeling, incorporated the best available 
information at the time from the states, and utilized the appropriate 
methods and models to provide a prediction of emissions from all source 
categories into the future. There was an inherent amount of uncertainty 
in the assumed emissions from all sources, including emissions from 
BART-eligible sources, as the final control decisions by all of the 
states were not yet complete. Nebraska provided the RPOs with their 
best estimates of what their regional haze SIP would achieve as inputs 
for the modeling, before they had made final BART determinations. The 
regional modeling incorporated BART presumptive emission reductions, 
and other states relied on these reductions in setting their RPGs.
    Nebraska's BART determination ultimately did not require 
presumptive SO2 BART for GGS, and Nebraska did not provide 
any information demonstrating those emission reductions would be 
otherwise achieved. The relevant requirement at 40 CFR 51.308(d)(3)(ii) 
is that Nebraska must demonstrate that it has included all measures 
necessary to obtain its share of the emission reductions needed to meet 
the RPGs for Class I areas where it causes or contributes to 
impairment. Class I states like South Dakota originally set the 
reasonable progress goals in their SIP based on emission reductions 
expected to be achieved through application of presumptive BART, CAIR, 
and other emission reductions qualified for that purpose. South Dakota 
had the opportunity to comment on Nebraska's draft BART permits as well 
as the overall regional haze SIP, and did not ask for additional 
emission reductions from Nebraska. As Nebraska did establish a BART 
limit for GGS and informed South Dakota that its BART determination 
deviated from what was included in the modeling, the fact that the 
final BART determination varied from the predictions is not grounds for 
disapproving either SIP. The RPGs are not enforceable goals. South 
Dakota will have the responsibility to consider whether other 
reasonable control measures are appropriate to ensure reasonable 
progress during subsequent periodic progress reports and regional haze 
SIP revisions as required by 40 CFR

[[Page 40156]]

51.308(f)-(h), and may at that time consider asking Nebraska for 
additional emission reductions.
    Comment 16: One commenter stated that the source retirement 
discussion in the Nebraska SIP submission was inadequate, as it did not 
contain a discussion of changes in energy and other markets and their 
likely effect on future emissions.
    Response 16: The requirement in 40 CFR 51.308(d)(3)(v) is for a 
state to consider source retirement and replacement schedules as a 
factor in developing its long-term strategy. Nebraska considered source 
retirements and replacements as a part of estimating the change in 
emissions from the baseline year of 2002 through the first 
implementation period for regional haze SIPs (2018). As stated in the 
SIP, 2002 emissions were grown to year 2018 utilizing EPA approved 
methods including the use of MOBILE 6.2 vehicle emission modeling 
software, and the Integrated Planning Model (IPM) version 2.93 for 
EGUs. These tools include estimations of source retirement and 
replacements when accounting for the effects of Federal and state 
rules. Thus, we believe that Nebraska adequately considered source 
retirements and replacements when developing its long-term strategy.
    Comment 17: One commenter criticized Nebraska's lack of analysis of 
potential emission reductions from stationary sources that are not 
BART-eligible or that are BART-eligible but not subject-to-BART.
    Response 17: The long-term strategy requirements of the rule do not 
specifically require an analysis of the potential emission reductions 
from stationary sources that are not BART-eligible or that are BART-
eligible but not subject-to-BART. The requirement is for the State to 
identify all anthropogenic sources of visibility impairment considered 
by the State in developing its long-term strategy. The CENRAP modeling 
demonstration provided by the State considered emissions of all 
anthropogenic source categories including major and minor stationary 
sources, mobile sources, and area sources in developing its strategy. 
With the exception of the SO2 component of the BART 
requirements as described elsewhere in our proposal and in this notice, 
the State has successfully demonstrated compliance with all other 
remaining elements of the long-term strategy requirements.
    Comment 18: One commenter questioned why EPA would point out in its 
proposed action that, ``* * * although Nebraska participated as a 
member state in CENRAP, the greatest impacts from Nebraska sources 
occur in a WRAP state--South Dakota.''
    Response 18: This statement is merely reiterating the fact that the 
Class I areas most impacted by emissions from Nebraska are in South 
Dakota which is a participant in a different RPO, as noted elsewhere in 
the proposal.

F. Comments Regarding Visibility Improvement Metrics

    Comment 19: One commenter stated that if EPA is relying on a 
particular threshold for determining the significance of a visibility 
benefit, this threshold should be explained and identified.
    Response 19: There is no particular threshold for determining 
significance of visibility benefit in the regional haze rule. 
Significance is a source- and Class I-specific evaluation, meaning that 
it depends on how much visibility improvement is needed at the Class I 
area(s), how much a specific source impacts the Class I area(s), and 
the cost effectiveness and potential visibility improvement of 
available control options. States have latitude to determine these 
thresholds,\14\ providing support and a reasonable and adequate basis 
for why they selected the thresholds, and to determine BART and 
reasonable progress controls, in consultation with other impacted 
states. As long as this evaluation is done adequately and the states 
provide a reasoned basis for their decisions, EPA will defer to the 
state.
---------------------------------------------------------------------------

    \14\ BART guidelines at 70 FR 39170: However, we believe the 
States have flexibility in setting absolute thresholds, target 
levels of improvement, or de minimis levels since the deciview 
improvement must be weighed among the five factors, and States are 
free to determine the weight and significance to be assigned to each 
factor. For example, a 0.3, 0.5, or even 1.0 deciview improvement 
may merit stronger weighting in one case versus another, so one 
``bright line'' may not be appropriate.
---------------------------------------------------------------------------

    Comment 20: One commenter remarked that they agree with use of the 
dollars per deciview metric to select BART controls, but encourage 
cumulative visibility benefits to be included, rather than just results 
at the nearest Class I area. They reiterate EPA's comments in the 
January 21, 2011, letter to NDEQ on the draft SIP, stating that ``a $/
dv analysis is likely to be less meaningful if the analysis does not 
take into account the visibility impacts at multiple Class I areas or 
ignores the total improvement (i.e., the frequency, magnitude, and 
duration of the modeled changes in visibility).''
    Another commenter discussed the importance of considering 
cumulative visibility benefits, both as the sum of smaller improvements 
at one Class I area and as the benefit of an action to all impacted 
Class I areas, as EPA has done previously in other actions, such as 
Oklahoma and New York.
    Response 20: The BART Guidelines list the dollars per deciview 
ratio as an additional cost effectiveness metric that can be employed 
along with dollars per ton in a BART evaluation. However, EPA does not 
have guidelines on how the dollars per deciview metric is to be used, 
and there is inconsistency in how states have calculated it. We believe 
that dollars per deciview is one of several metrics that can be used to 
analyze cost of visibility improvement, and reaffirm our position that 
the calculation is more meaningful if cumulative visibility benefits 
are accounted for.
    Comment 21: One commenter called the use of a cumulative impacts 
analysis for GGS ``unauthorized''. The commenter pointed out that a 
BART-eligible source is ``subject to BART'' only if it ``may reasonably 
be anticipated to cause or contribute to any impairment of visibility 
in any mandatory Class I Federal area,'' adding emphasis to area.
    Response 21: We consider this to be somewhat of a moot point, as 
the source in question, GGS, clearly causes visibility impairment at 
the closest Class I area, Badlands, even without consideration of 
cumulative impacts.\15\
---------------------------------------------------------------------------

    \15\ CALPUFF modeling shows that GGS impacts Badlands an average 
of 2.93 dv in the baseline years of 2001-2003.
---------------------------------------------------------------------------

    However, as stated previously and consistent with other EPA actions 
on regional haze, we also believe that a cumulative impacts analysis is 
a useful tool for examining the impact of a BART-subject source and the 
visibility improvement to be gained by the addition of emission 
controls, and do not agree that use of this tool is unauthorized or 
unreasonable.
    Comment 22: One commenter criticizes the lack of attention EPA 
gives in its proposed action to Nebraska's dollar per deciview analysis 
presented in its SIP. The commenter reiterates Nebraska's conclusions 
on cost per deciview of improvement, saying that the dollars per 
deciview of visibility improvement for FGD at GGS far exceeded that of 
any other utility Nebraska compared it to. The commenter states that 
EPA ``does not and cannot disturb Nebraska's threshold of $40 million 
per deciview per year.''
    Response 22: EPA reviewed all of Nebraska's analysis presented in 
the SIP, including total annualized costs, dollars per ton, dollars per 
deciview, incremental dollars per ton, incremental dollars per 
deciview, and frequency (number of days) impacted. The State is

[[Page 40157]]

free to set the thresholds it chooses, as long as it provides support 
and a reasonable and adequate basis for the threshold. Nebraska set a 
cost threshold at $40 million/dv/year as reasonable for BART controls, 
however, the State did not provide justification or basis for why it 
chose that threshold.
    For BART, the BART Guidelines require that cost effectiveness be 
calculated in terms of annualized dollars per ton of pollutant removed, 
or $/ton,\16\ so the language in our proposal focuses on $/ton.
---------------------------------------------------------------------------

    \16\ 70 FR 39167.
---------------------------------------------------------------------------

    In addition, if the cost of controls are overestimated, and the 
true efficiency of the control technology is not modeled, as is the 
case with the BART analysis at GGS, the result is a metric that 
overestimates cost and underestimates visibility improvement.
    As seen in Table 1, even with overestimated costs, if visibility 
improvement is considered on a cumulative basis, the cost per deciview 
for SO2 control is under Nebraska's threshold--$34,238,388. 
Without overestimated costs, even at the presumptive level of control, 
dollars per deciview are half of Nebraska's threshold--$20,987,655. The 
cumulative visibility benefits of more stringent levels of control, 
such as 0.06 lbs/MMBtu, is unknown, but would clearly be well under 
half of the threshold Nebraska set as being cost effective for BART 
controls on a dollars per deciview basis.

                              Table 1--Range of GGS Dry Scrubber Cost Effectiveness
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
                                     Dry FGD               Dry FGD EPA's estimate revised from comments
                                   (Nebraska's
                                  original BART
                                    analysis)
----------------------------------------------------------------------------------------------------------------
SO2 Baseline..................            49,785                              49,785
                                                 ---------------------------------------------------------------
Uncontrolled Emission Level                0.749                               0.749
 (lbs/MMBtu).
                                                 ---------------------------------------------------------------
Controlled Emission Rate (lbs/              0.15              0.15  0.11.................  0.06.
 MMBtu).
----------------------------------------------------------------------------------------------------------------
Percent Reduction.............               80%               80%  85.3%................  92%.
----------------------------------------------------------------------------------------------------------------
SO2 Emission Reduction (tons).            39,815            39,815  42,473...............  45,797.
----------------------------------------------------------------------------------------------------------------
Total Annualized Cost.........      $108,535,690       $66,530,865  $67,871,854..........  $69,519,846.
----------------------------------------------------------------------------------------------------------------
Total Cost Effectiveness ($/              $2,726            $1,671  $1,598...............  $1,518.
 ton).
----------------------------------------------------------------------------------------------------------------
$/dv (Badlands)...............      $139,148,321       $85,295,981  unknown \a\..........  unknown.
-------------------------------------------------------------------
$/dv (Cumulative) \b\.........       $34,238,388       $20,987,655
----------------------------------------------------------------------------------------------------------------
\a\ Nebraska did not conduct visibility modeling for FGD at a rate of 0.11 or 0.06 lbs/MMBtu SO2.
\b\ In calculating cumulative visibility improvement, NDEQ only considered the two closest Class I areas,
  Badlands and Wind Cave in South Dakota. As described in our TSD, we believe that it is more appropriate to
  calculate cumulative improvement from all six Class I areas which are impacted greater than 0.5 dv from GGS
  Units 1 and 2.

G. Comments Regarding BART for Particulate Matter

    Comment 23: One commenter stated that EPA failed to propose 
approval or disapproval of Nebraska's PM BART determination for NCS and 
GGS. The commenter provides that EPA characterized Nebraska's PM BART 
analyses for NCS and GGS as ``* * * direct PM emissions from [the 
facility] do not significantly contribute to visibility impairment, and 
therefore, a full five factor BART analysis for PM was not needed.'' 77 
FR 12778. The commenter contends that although EPA proposed to agree 
with these conclusions, it did not approve or disapprove Nebraska's 
further conclusion that BART for PM is existing controls and 
requirements, which it is required to do.\17\
---------------------------------------------------------------------------

    \17\ Nebraska Regional Haze SIP, submitted July 13, 2011, at 
pages 45 and 48.
---------------------------------------------------------------------------

    Response 23: We disagree with the commenter's assertion that EPA is 
required to approve or disapprove Nebraska's conclusion that BART for 
PM is existing controls and requirements. The RHR and the BART 
Guidelines \18\ require a determination as to whether a source is 
subject to BART, that is, whether the BART-eligible source emits any 
pollutant which may reasonably be anticipated to cause or contribute to 
any impairment of visibility in any Class I area. In performing this 
analysis, Nebraska appropriately utilized source-specific CALPUFF 
modeling to analyze whether SO2, NOX, and direct 
PM emissions contributed to visibility impairment at Class I areas. As 
a result of the modeled demonstration that impairment due to direct PM 
emissions is minimal, Nebraska appropriately concluded that direct PM 
emissions from GGS and NCS do not significantly contribute to 
visibility impairment. Under the RHR and BART Guidelines, the State is 
not required to go further in performing a full-five factor analysis 
for PM to determine BART. While the State is free to make additional 
findings related to existing controls at GGS and NCS, EPA is not 
required to act upon them as those findings go beyond what is required 
by the rule and EPA has determined the State met the minimum 
requirements for BART analysis for direct PM.
---------------------------------------------------------------------------

    \18\ The Regional Haze Rule at 40 CFR 51.308(e)(1)(ii)(B) states 
that the ``determination of BART for fossil-fuel fired power plants 
having a total generating capacity greater than 750 megawatts must 
be made pursuant to the guidelines in Appendix Y of this part 
(Guidelines for BART Determinations Under the Regional Haze Rule).''
---------------------------------------------------------------------------

H. Comments Regarding BART for NOX at Gerald Gentleman 
Station

    Comment 24: Many comments were received regarding the cost 
estimations for SCR at GGS. The commenters asserted the cost 
estimations provided

[[Page 40158]]

by Nebraska \19\ were not supported by adequate information, such as 
specific vendor quotes. The commenters argued that Nebraska 
inappropriately included several costs such as escalation, inflation, 
allowance for funds used during construction (AFUDC), and an 
unjustified expense for taking a unit offline to install an SCR (rather 
than installing it during a routine outage). They also contended that 
site-specific factors such as real interest rates (5.25 percent rather 
than 7 percent) and a 30-year expected lifetime (rather than 20 years) 
should be used. The commenters asserted that these overestimations 
significantly inflate the cost of controls, totaling $377/kW, higher 
than known costs associated with any SCR installation. The commenters 
contend that no information was presented in the Nebraska BART analysis 
showing space constraints or particular complexity of retrofit which 
would justify such high cost estimations.
---------------------------------------------------------------------------

    \19\ The commenters refer to these cost estimations as NPPD's. 
NDEQ accepted NPPD's estimations and submitted them to EPA, so for 
consistency, we are referring to these estimations as 
``Nebraska's.''
---------------------------------------------------------------------------

    Several commenters stated their belief that at Nebraska's 
calculated cost of $2,297/ton, LNB/OFA plus SCR is cost effective for 
NOX control at GGS. The commenters assert that this cost is 
well within the range of cost effectiveness values required by EPA and 
other states, and in fact, below the values Nebraska found cost 
effective for SO2 controls at GGS. The commenters assert 
that if the costs of controls were adjusted to correct for 
inconsistencies with the Cost Control Manual methodology, the controls 
would be even more cost effective.
    One commenter presented a NOX BART cost estimation for 
SCR at GGS using EPA's Cost Control Manual and Integrated Planning 
Model (IPM) for each of the two Units individually. The commenter 
concluded that LNB/OFA plus SCR for Units 1 and 2 at a limit of 0.05 
lbs/MMBtu would remove almost 20,000 tons of NOX per year 
and cost approximately $1,900 per ton. They argue that with this more 
reasonable cost estimate, the costs of control are below Nebraska's 
stated threshold of $40 million/dv, at $12-19 million/cumulative dv.
    Response 24: As described below and in Appendix D, E, and F, we 
agree with the commenters that Nebraska's SCR costs were overestimated 
by including expenses inconsistent with EPA's Cost Control Manual. In 
response to these comments, we conducted an evaluation of the cost of 
SCR, using the information provided by Nebraska and adjusting it in 
accordance with the Cost Control Manual. We made a number of 
adjustments to Nebraska's SCR cost estimation, including:

 Adjustments to the engineering, planning, and construction 
(EPC) cost
 Adjustments to the contingencies
 Deletion of escalation and allowance for funds used during 
construction (AFUDC)
 Inclusion of a NOX control rate cost scenario of 
0.05 lbs/MMBtu
 Increasing the SCR operational life from 20 to 30 years
 Adjusting the capital recovery factor (CRF)
    We did not exclude the cost of taking a unit offline to install an 
SCR (rather than installing it during a routine outage), as we do not 
have any information to show that this is an unreasonable assumption. 
However, we did reduce this annualized charge from $1,021,000 to 
$833,683, by recalculating it based on our CRF. If the cost was 
eliminated entirely, it would only change the cost effectiveness $/ton 
figures by approximately 2 percent. Therefore, even if the commenter is 
correct that this charge is unwarranted, it would not have likely 
impacted Nebraska's decision to eliminate SCR as BART.
    Table 2 summarizes EPA's adjustments to Nebraska's cost estimates 
for SCR control. Nebraska conducted the BART evaluation for the two 
units at GGS together, so the results presented in Table 2 are combined 
for the two units.

               Table 2--Revised NOX Cost Calculations (SCR), Gerald Gentleman Station, Units 1 & 2
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
                                       Original analysis (NDEQ)
                                        Revised analysis (EPA)
                                 -------------------------------------------------------------------------------
                                       LNB/OFA        LNB/OFA + SCR                  LNB/OFA + SCR
----------------------------------------------------------------------------------------------------------------
Baseline (before control).......            30,243            30,243            30,243  30,243.
Emission rate (lbs/MMBtu).......              0.23              0.08              0.08  0.05.
Control efficiency..............               49%               82%               82%  89%.
Controlled emissions (tpy)......            15,287             5,317             5,317  3,323.
Tons NOx removed (total)........            14,956            24,926            24,926  26,920.
Total Annualized Cost...........        $2,960,000       $57,251,000       $39,467,000  $41,760,000.
Total cost per ton..............              $198            $2,297            $1,583  $1,551.
Tons NOx removed (incremental                  N/A             9,970             9,970  11,964.
 over LNB/OFA).
Incremental cost per ton........               N/A            $5,445            $3,662  $3,243.
Incremental visibility                         N/A              0.49          \a\ 0.49  unknown\b\.
 improvement (delta dv).
Total visibility improvement,                 0.66              1.15          \c\ 1.15  unknown.
 Badlands.
Total visibility improvement,                 1.94              3.21              3.21  unknown.
 Cumulative \d\.
Total $/dv, Badlands............        $4,484,848       $49,783,478       $34,319,130  unknown.
Total $/dv, Cumulative..........        $1,525,773       $17,835,202       $12,295,016  unknown.
----------------------------------------------------------------------------------------------------------------
\a\ Note that Nebraska modeled the two units at GGS together. The incremental improvement of 0.49 dv is the
  average improvement over the three baseline years. If this analysis was separated by unit, the per-unit
  incremental improvement would be approximately 0.24 dv on average. If the maximum incremental improvement were
  considered, it would be 0.54 dv for the two units combined, or approximately 0.27 dv for each unit.
\b\ Nebraska only conducted CALPUFF modeling at the control rate of 0.08 lbs/MMBtu. We have not determined the
  predicted visibility improvement resulting from consideration of a lower rate, such as 0.05 lbs/MMBtu.
\c\ Total average improvement for the baseline period for the two units combined is 1.15 dv. Average improvement
  for each unit would be approximately 0.575 dv. Total maximum improvement for the two units would be 1.24 dv,
  or approximately 0.62 dv each.
\d\ GGS impacts 6 Class I areas more than 0.5 dv. Improvements from these 6 areas are included in this
  calculation.

    EPA's reevaluation of Nebraska's SCR cost estimate resulted in 
lowering the total capital cost from $478,151,000 to $320,209,000 for 
the 0.08 lbs/MMBtu emission rate, a reduction of approximately 33 
percent. This results in an incremental cost effectiveness change from 
Nebraska's estimate of $5,445/ton to $3,662/ton, or $3,243 per

[[Page 40159]]

ton if the 0.05 lbs/MMBtu rate is considered.
    When the costs are recalculated, it appears that the costs are 
within a range that many states and EPA have found to be reasonable for 
NOX BART controls. EPA also acknowledges that the 
recalculated costs are below Nebraska's own thresholds for incremental 
cost effectiveness ($5,000 per ton) and cost effectiveness per deciview 
($40 million per deciview), although EPA notes that Nebraska did not 
provide justification or support in the record for their selected cost 
effectiveness thresholds.
    Therefore, as described here and in section II of this notice, it 
appears that Nebraska's NOX BART determination of LNB and 
OFA at a rate of 0.23 lbs/MMBtu for GGS Units 1 and 2, by itself, is 
not supported by the record. However, as described in section II of 
this notice, Nebraska is subject to the Transport Rule and FIP for 
NOX at 40 CFR 52.1428. EPA has found that the trading 
programs in the Transport Rule achieve greater reasonable progress 
towards the national goal of achieving natural visibility conditions in 
Class I areas than source-specific BART in those states covered by the 
Transport Rule.\20\
---------------------------------------------------------------------------

    \20\ See Regional Haze: Revisions to Provisions Governing 
Alternatives to Source-Specific BART Determinations, Limited SIP 
Disapprovals, and Federal Implementation Plans, 77 FR 33642 (June 7, 
2012).
---------------------------------------------------------------------------

    Given the emission reductions provided by the NOX 
emission limits associated with Nebraska's NOX BART 
determination of LNB and OFA for GGS Units 1 and 2, which strengthen 
the Nebraska SIP, in conjunction with the existing Transport Rule FIP 
which already applies to Nebraska and has been determined to provide 
greater reasonable progress than BART, in today's action, EPA is 
finalizing its proposed approval of Nebraska's SIP as satisfying the 
requirements of the Regional Haze Rule with respect to BART for 
NOX, and therefore do not inquire further here as to whether 
the cost effectiveness of SCR is low enough and the associated deciview 
improvement significant enough to reasonably determine that SCR is BART 
for GGS Units 1 and 2.
    Comment 25: One commenter notes that Nebraska rejected SCR on the 
basis that it was not cost effective on an incremental basis, a metric 
which the commenter believes was given undue weight. The commenter 
contends that if the overestimated costs were corrected even slightly, 
the incremental cost per ton would be under Nebraska's ``arbitrary'' 
threshold for incremental cost effectiveness of $5,000 per ton.
    The commenter asserts that the incremental visibility benefits of 
SCR at GGS are significant. The commenter notes that the control 
efficiency of SCR used in the State's analysis is less than what the 
technology is capable of achieving, and if modeling was conducted at a 
more stringent rate, visibility benefits would be even greater.
    The commenter highlights an EPA Region 8 BART decision for North 
Dakota, requiring SNCR and LNB/separated OFA at an incremental cost of 
$5,441 per ton at a facility where the incremental visibility benefit 
was only 0.105 dv.\21\
---------------------------------------------------------------------------

    \21\ 77 FR 20894 (April 6, 2012); proposed at 76 FR 58570 (Sept. 
21, 2011).
---------------------------------------------------------------------------

    Response 25: As stated in response 24, we did adjust Nebraska's 
cost estimations, and found that the incremental cost for SCR at GGS 
was likely closer to $3,662 per ton, rather that the State's estimate 
of $5,445 per ton. The commenter correctly suggests that this adjusted 
cost is less than Nebraska's stated cost effectiveness threshold of 
$5,000 incremental cost per ton. We agree with the commenter that the 
State did not support its chosen thresholds in the record.
    We agree with the commenter's suggestion that if the visibility 
modeling had been conducted at a more stringent control rate of 0.05 
lbs/MMBtu, which an SCR is capable of achieving, the visibility 
improvements would likely be greater than what is stated in Nebraska's 
SIP submission, and within a range many states and EPA have found to be 
significant for control.
    Because of some of the deficiencies highlighted by the commenters, 
we are not able to conclude that the State's NOX BART 
determination was supported by the record.
    We respond to comments about the control efficiency of SCR in 
response 27.
    In today's action, EPA determined that Nebraska's NOX 
BART determination for GGS is not supported by the record, therefore, 
the commenter's suggestion that EPA's approval of Nebraska's 
NOX BART determination for GGS is inconsistent with EPA's 
action on North Dakota's regional haze SIP is no longer applicable. In 
today's action, given the emission reductions provided by the 
NOX limits associated with Nebraska's NOX BART 
determination of LNB and OFA for GGS Units 1 and 2, which strengthen 
the Nebraska SIP, in conjunction with the existing Transport Rule FIP 
which already applies to Nebraska and has been determined to provide 
greater reasonable progress than BART, EPA is finalizing its proposed 
approval of Nebraska's SIP as satisfying the requirements of the 
Regional Haze Rule with respect to BART for NOX. This action 
is not inconsistent with EPA's action on North Dakota's regional haze 
SIP. In that action, EPA disapproved North Dakota's NOX BART 
determination for these Units because the State ``relied on cost 
estimates that greatly overestimated the costs of controls'' \22\ and 
``the faults in the cost estimates were significant enough that they 
resulted in BART determinations for NOX for CCS 1 and 2 that 
were both unreasoned and unjustified.'' 77 FR 20900. We note that in 
the North Dakota case, the State estimated the costs for SNCR at 
$8,551, and EPA's revised cost estimate was $2,500, a reduction in 
costs of 71 percent. This overestimation is much greater than the GGS 
case, when our analysis only reduced the cost 33 percent. Furthermore, 
we note that the visibility impacts of these two sources are different, 
making different conclusions about BART plausible.\23\
---------------------------------------------------------------------------

    \22\ The state estimated costs for SNCR at $8,551, and EPA's 
revised cost estimate was $2,500, a reduction in costs of 71 
percent.
    \23\ CCS Units 1 and 2 impact the nearest class I area 4.04-4.48 
dv, as opposed to the 2.828-3.121 dv impact due to GGS Units 1 and 2 
on the nearest Class I area.
---------------------------------------------------------------------------

    Once EPA Region 8 disapproved the Great River Energy Coal Creek 
Station Units 1 and 2 NOX BART determinations in North 
Dakota's SIP, a FIP was required, and EPA conducted its own source-
specific consideration of cost, visibility improvement, and the other 
regulatory factors to determine what was appropriate as BART.
    Comment 26: We received comments noting that the two Units at GGS 
were evaluated in combination. The commenters believe that because the 
Units are different sizes and have different existing controls 
installed, a separate analysis for the two Units would be more 
appropriate. Also, the proposed BART limit was combined across the two 
Units, and the commenter asserts that Unit-specific limits are 
required.
    Response 26: We acknowledge that the pre-control NOX 
emissions profiles for Units 1 and 2 at GGS are different. However, 
when the commenter conducted a cost analysis for adding SCR for each 
Unit individually and adjusting the baseline and control efficiency as 
they saw appropriate, their cost conclusions were similar to EPA's. The 
commenters calculated the incremental cost to add SCR at a limit of 
0.05 lbs/MMBtu to be $3,481 per ton

[[Page 40160]]

for the two Units,\24\ while EPA's calculations showed an incremental 
cost of $3,243 at this limit.
---------------------------------------------------------------------------

    \24\ As calculated by the commenters, GGS Unit 1's incremental 
cost for SCR was $3,399 and Unit 2's incremental was $3,567, for a 
two-unit average of $3,481.
---------------------------------------------------------------------------

    In terms of visibility analysis, we believe it was reasonable for 
the State to combine the two co-located units for purposes of modeling. 
Again, we note that when the commenter adjusted the baseline 
individually for the two units as they saw fit, the result was nearly 
identical to the State's visibility conclusions. The commenters 
calculated a visibility improvement of 0.24 dv at Unit 1 and 0.23 dv at 
Unit 2, for a two-unit total of 0.46 dv \25\ incremental improvement 
from SCR at Badlands and 1.29 dv cumulatively. The State's two-unit 
incremental improvement was 0.49 dv at Badlands and 1.27 dv 
cumulatively. Therefore, we disagree that an analysis for each unit was 
necessary, as it does not appear that it would have yielded a different 
BART determination result.
---------------------------------------------------------------------------

    \25\ These figures are rounded to two decimal places. Unit 1's 
improvement is estimated at 0.238 dv, Unit 2 is 0.225 dv, for a two-
unit total of 0.463 dv.
---------------------------------------------------------------------------

    We disagree with the commenter that unit-specific limits are 
required. The BART Guidelines, section V state: ``You should consider 
allowing sources to `average' emissions across any set of BART-eligible 
emission units within a fence line, so long as the emission reductions 
from each pollutant being controlled for BART would be equal to those 
reductions that would be obtained by simply controlling each of the 
BART-eligible units that constitute BART-eligible source.''
    Therefore, it was acceptable for the State to average the BART 
limits over the two units.
    Comment 27: Several commenters stated that Nebraska underestimated 
the ability of modern SCR systems to control NOX. Nebraska's 
SCR evaluation was conducted at a limit of 0.08 lbs/MMBtu, which 
amounts to approximately an 82 percent control efficiency. However, the 
commenters present information showing that SCR is capable of achieving 
at least a 90 percent control efficiency, and note that the BART 
Guidelines require that the most stringent level of control be 
evaluated as one of the BART options. The commenters pointed out 
several recent Best Available Control Technology (BACT) determinations 
and regional haze FIPs which required limits of 0.05 lbs/MMBtu or lower 
on a thirty-day rolling average. They state that no information was 
presented in the State's NOX BART evaluation indicating that 
special circumstances existed which would make the most stringent level 
of control unachievable.
    Response 27: The commenter presented evidence that a limit of 0.05 
lbs/MMBtu for SCR likely should have been analyzed in the State's BART 
determination. We acknowledge that other SCR retrofits have resulted in 
NOX emission levels lower than 0.08 lbs/MMBtu, and at a 
control efficiency greater than 82 percent, the deciview improvement 
will likely increase and be in a range that many states and EPA have 
found to be reasonable for NOX BART controls.
    As discussed previously, we have determined that the State's 
NOX BART determination was not supported by the record. 
However, in today's action, we are concluding that the combination of 
the LNB/OFA controls proposed by the State in combination with the 
existing Transport Rule FIP, which already applies to Nebraska, 
satisfies the requirements for NOX BART at GGS.
    Comment 28: Several commenters also stated that the most stringent 
level of control achievable from the use of combustion controls on GGS 
Unit 2 needs to be evaluated. They state that Unit 2's existing 
NOX emissions (typically between 0.30-0.35 lbs/MMBtu) could 
likely be controlled well below the proposed joint limit of 0.23 lbs/
MMBtu with combustion controls.
    Response 28: The current annual rate at GGS Unit 2 has varied 
between 0.305 and 0.348 from the period 2000-2011. The current rate at 
Unit 2 already reflects an older vintage of LNB control. Although it is 
possible that a lower rate could be achieved with new combustion 
controls, it is unclear what this rate might be and the commenter has 
not offered documentation as to why a lower rate could be achieved by 
LNB/OFA on this unit. BART analyses by states and EPA have typically 
assumed combustion controls to meet a rate of 0.23 lbs/MMBtu for 
purposes of evaluation of cost and visibility benefit, therefore, EPA 
sees no reason to conclude that the State's analysis of combustion 
controls at 0.23 lbs/MMBtu was not reasonable.
    Comment 29: We received several comments indicating that SNCR was 
prematurely eliminated as an option for NOX BART at GGS. 
Nebraska eliminated SNCR from consideration as BART on the basis that 
it is not technically feasible because of high exit temperatures. The 
commenter cited a similar unit (Boardman power plant operated by 
Portland General Electric), in which a contractor found an appropriate 
injection location which would make a 25 percent NOX 
reduction feasible, at an approximate cost of $14/kW. The commenter 
also believes that the two units at GGS are different enough that SNCR 
should be evaluated for each unit individually, rather than in 
combination.
    Response 29: The BART Guidelines state, ``You should document a 
demonstration of technical infeasibility and should explain, based on 
physical, chemical, or engineering principles, why technical 
difficulties would preclude the successful use of the control option on 
the emissions unit under review.'' Nebraska's BART analysis presented a 
demonstration of why SNCR is technically infeasible for control at GGS 
Units 1 and 2. However, as described previously, we are not able to 
determine that the State's NOX BART determination was 
supported by the record, and thus, EPA is not making a determination on 
the feasibility of SNCR as BART at GGS. EPA notes that evaluation of 
SNCR cost and control efficiency is unit-specific, so comments 
indicating that SNCR was feasible and cost effective at another 
facility do not necessarily support a determination that SNCR is 
feasible at GGS.
    Comment 30: One commenter stated that the costs for SCR 
installation were ``under documented''. The commenter suggested that 
the cost estimates were missing significant information, such as vendor 
quotes, and contended that EPA's proposed approval without this 
information was ``arbitrary''. The commenter states that if EPA relied 
on this information in decision making, but failed to include it in the 
docket, the public's notice and comment rights were violated.
    Response 30: EPA did not rely on information that was not in the 
docket for this rule. We acknowledge that the vendor quotes provided in 
the docket (appendix 10.6 of the SIP) are redacted copies, omitting the 
name of the vendor and certain design parameters. However, we believe 
that adequate information was presented in order for EPA and the public 
to review the BART cost estimations.

I. Comments Regarding SO2 BART at Gerald Gentleman Station

    Comment 31: One commenter stated that it agreed with EPA's proposed 
disapproval of the BART determination for SO2 controls for 
GGS. The commenter stated that EPA appropriately determined that dry 
FGD would result in significant visibility improvement at Badlands. The 
commenter also stated that it agrees with EPA's proposed disapproval of 
Nebraska's long-term strategy. The

[[Page 40161]]

commenter noted that presumptive BART SO2 controls at GGS 
were included in the regional modeling that supports the reasonable 
progress goals for Class I areas in South Dakota, Colorado, Oklahoma, 
and Missouri that are impacted by GGS. The commenter stated that 
without SO2 controls at GGS, these Class I areas are likely 
not to meet EPA and the States' reasonable progress goals.
    Response 31: EPA appreciates the comments in support of today's 
action. Comments regarding impact on other states RPGs are addressed in 
section III E of this notice.
    Comment 32: Several commenters stated that it is within Nebraska's 
purview to assign the weight and significance for, and to balance each 
of the BART statutory factors. One commenter states that the plain 
language of the CAA provides Nebraska with great discretion to balance 
the five statutory factors. See 42 USC 7491(g)(2) and 77 FR 12770-12774 
(citing 40 CFR 51.308(e)(1)(ii)). The commenter states that in making 
its BART determination for GGS, Nebraska followed the BART Guidelines 
in evaluating the costs of compliance and non-air quality environmental 
impacts, including consideration of the extent to which short-term 
environmental gains were being achieved at the expense of long-term 
environmental losses and the extent to which there may be an 
irreversible or irretrievable commitment of resources. Another 
commenter states that through the BART five-factor analysis, Nebraska 
eliminated wet and dry FGD as control options for GGS using step 4 
(costs of compliance) and, more importantly, the significant non-air 
quality environmental impacts, including the unique water resource 
restrictions that exist in Nebraska, the costs of obtaining the water, 
and the resultant strain on Nebraska's agricultural sector should water 
reallocations be required. The commenter asserts that EPA bases its 
proposed disapproval on disagreement over the cost of water without 
referencing the State's non-air quality determination, the RHR 
delegates the determination of the non-air quality environmental 
impacts factor to the State, and the commenter referred EPA to its 
statements regarding whether the State reasonably considered the 
relevant factors in its final rule for South Dakota (77 FR 24845, 24853 
(April 26, 2012)).
    Response 32: EPA incorporates by reference its response to comments 
6 and 9. EPA agrees that states are assigned statutory and regulatory 
authority to determine BART and that many past EPA statements, 
including those the commenter cited in EPA's approval of South Dakota's 
regional haze SIP, have confirmed state authority in this regard. 
However, although the states have the freedom to determine the weight 
and significance of the statutory factors, they have an overriding 
obligation to come to a reasoned determination. While states have 
authority to exercise different choices in determining BART, the 
determinations must be reasonably supported.
    EPA based its decision to disapprove Nebraska's SO2 BART 
determination for GGS on a number of issues, including errors in 
Nebraska's cost analysis for FGD controls, the reasonableness of the 
costs of controls, the potential for significant visibility improvement 
as a result of installing FGD or DSI, and improper rejection of DSI. 
The availability and cost of obtaining water was factored into the cost 
of controls and the costs were still found to be reasonable, 
particularly given the significant visibility benefits as a result of 
controls. Furthermore, as EPA stated in its proposal, DSI does not 
consume as much water as FGD, and is a viable option for control of 
SO2. For those reasons, we found that Nebraska's blanket 
dismissal of any SO2 control under the ``non-air quality 
environmental impact'' factor was unreasoned.
    Comment 33: One commenter questioned EPA's justification for 
disagreeing with Nebraska's determination that DSI was not reasonable 
for BART control. The commenter said that Nebraska's reasons for 
eliminating DSI as BART control were that the technology was relatively 
new for units the size of GGS Units 1 and 2, and the cost would exceed 
Nebraska's dollars per deciview threshold (Nebraska estimated 
$95,189,314/dv/year for DSI, exceeding its threshold of $40 million per 
deciview per year).
    Response 33: At $2,058 per ton, and a visibility improvement of 
0.86 dv at the closest Class I area, EPA considers DSI to be cost 
effective, and the visibility improvements to be significant at the 
closest Class I area.
    Visibility improvement for DSI was only evaluated at Badlands, so 
we are unable to fully analyze Nebraska's use of the dollars per 
deciview threshold in this case, as cumulative benefits were not 
modeled. However, because of the proximity and similarity of impacts 
between Badlands and Wind Cave, we believe it is reasonable to assume 
similar visibility improvement would be seen at Wind Cave from the 
installation of DSI. The annualized cost of DSI at the two units is 
$81,958,000, and if similar visibility improvements were seen at Wind 
Cave (0.86), the cost per deciview would be $47,650,000.\26\ This 
approaches Nebraska's threshold for reasonableness on a dollars per 
deciview basis.\27\ If the benefit on the other Class I areas GGS 
impairs was added in to this calculation, the cost per deciview would 
likely be at or under Nebraska's threshold.
---------------------------------------------------------------------------

    \26\ $81,958,000 / (0.86 x 2) = $47,650,000.
    \27\ Although EPA notes that Nebraska did not provide 
justification or basis for its thresholds in the record.
---------------------------------------------------------------------------

    Nebraska did not present information in its SIP submission showing 
that DSI is technically infeasible at units the size of GGS as a basis 
to eliminate it from the consideration for BART, and in fact evaluated 
DSI as a feasible control.
    Comment 34: One commenter stated that our proposed revisions to FGD 
cost estimates are not correct. In the TSD for our proposed action, we 
did a detailed evaluation of the cost estimates provided by Nebraska, 
and noted where we believed costs to be overestimated or 
inappropriately included. The commenter incorporated by reference two 
contractors' assessments of our evaluation.
    Response 34: The contractors' comments and our responses are 
described in detail in Appendix G, ``Responses to Comments and 
Revisions to EPA's Evaluation of Cost of FGD Controls at NPPD GGS Units 
1 and 2.'' Overall, after making adjustments to our cost estimates 
based on these comments, the cost of controls emerge as even more cost 
effective than our original estimate, as previously shown in Table 1. 
These revisions do not change our conclusions that Nebraska 
overestimated the costs of FGD controls. Our revised analysis reduces 
the estimated cost of controls from $108,535,690 (annualized) to 
between $66,530,865 and $69,519,846--a 36 to 39 percent reduction in 
cost.

J. Comments Regarding Water Availability To Operate FGD

    Comment 35: Many commenters reiterated statements in the SIP 
regarding water availability and concerns about the use of water 
resources to operate air pollution controls. In order to obtain the 
water necessary to operate FGD, NPPD would need to obtain the rights to 
groundwater resources in the over-appropriated Twin Platte Basin. In 
its SIP, under the ``non-air environmental impact'' factor of the BART 
analysis for SO2 control at GGS, Nebraska determined that 
this consumptive water use rendered the control unreasonable.
    Response 35: First, we note that today's action does not require

[[Page 40162]]

installation of FGD; instead, it relies on the trading program of the 
Transport Rule, which does not dictate specific controls for specific 
units, to achieve visibility protection.
    EPA acknowledges the concerns about water availability, and 
recognizes the great care that the State takes to manage limited water 
resources. We also acknowledge the goals of the Integrated Management 
Plans (IMP) and obligations of the Platte River Recovery Plan.
    However, as we said in our proposal, we do not believe that the 
water is unattainable, but that it can be obtained at a cost. See 
response to comment 36 about how these costs were taken into account in 
estimating the overall cost of controls.
    We also note that there are BART control options which do not 
require nearly the amount of consumptive use of water, such as DSI, 
which is cost effective and achieves significant visibility 
improvement. FGD was not the only control option for SO2 at 
GGS, so it is not acceptable to use concerns about water availability 
to rule out all SO2 controls for BART.
    Comment 36: Two commenters state that the cost of acquiring water 
and land has increased since the time the SIP was submitted. The 
Nebraska Association of Resources Districts states that land costs in 
the basin have exceeded $10,000/acre and water rights have been valued 
up to $5,000 per acre-foot. NDEQ states that since the SIP was 
submitted in July 2011, land values have increased in the area, such 
that in March 2012, a farm with 330 acres of irrigated land sold for 
$4,303 per acre. They estimate that this is a 7.5 percent increase in 
land value from the cost estimates utilized in the SIP.
    Response 36: We recalculated the costs of obtaining water to 
operate wet and dry FGD based on these comments.
    As seen in Table 3, when these higher land costs are considered, it 
raises the cost effectiveness of wet FGD from $2,932 per ton to $3,245 
per ton, an increase of $313 per ton. These figures should be 
considered to be conservative for several reasons. First, NPPD's 
estimates of water use to operate wet FGD were 31 percent higher than 
the average of other facilities that NDEQ provided in its SIP. Second, 
we did not include any rental income from the property, value due to 
production of dry land crops, or the future value of the land in 20 
years in calculating these costs. Third, as noted in the proposal, 
although we did not review the BART cost analysis for wet FGD, many of 
the same cost overestimations are likely present.
    For dry FGD, using our adjusted costs and adding in the higher 
costs of land and water, the costs are still reasonable, ranging from 
$1,897-$2,107 per ton.

                                              Table 3--Cost of Obtaining Water Rights To Operate FGD at GGS
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                     Wet FGD
                                                              Dry FGD
                                      ------------------------------------------------------------------------------------------------------------------
                                         Estimation in      Estimation                              EPA's estimates, plus water
                                              SIP          revised from
                                                             comments
--------------------------------------------------------------------------------------------------------------------------------------------------------
Acre-feet per year required..........             3,877             3,877             3,238  3,238                          3,238.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Acres of land required...............            22,000            22,000        \a\ 18,374  18,374                         18,374.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cost of land per acre................            $4,000           $10,000           $10,000  $10,000                        $10,000.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total cost to obtain water offsets...       $88,000,000      $220,000,000      $183,740,005  $183,740,005                   $183,740,005.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized costs of obtaining water          $8,306,590       $20,766,444       $17,343,757  $17,343,757                    $17,343,757.
 offsets (7% over 20 years).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized cost of FGD...............      $108,450,000      $108,450,000       $66,530,865  $67,871,854                    $69,519,846.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total annualized cost, FGD + water         $116,756,590      $129,216,444       $83,874,622  $85,215,611                    $86,863,603.
 offsets.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Emission Rate (lbs/MMBtu)............              0.15              0.15              0.15  0.11                           0.06.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Tons SO2 reduced.....................            39,815            39,815            39,815  42,473                         45,797.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cost effectiveness ($/ton)...........            $2,932            $3,245            $2,107  $2,006                         $1,897.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Average visibility improvement                     0.78              0.78              0.78  unknown                        unknown.
 (Badlands).
--------------------------------------------------------------------------------------------
Average visibility improvement                     3.17              3.17              3.17
 (Cumulative).
--------------------------------------------------------------------------------------------
$/dv (Badlands)......................      $149,687,936      $165,662,108      $107,531,566
$/dv (Cumulative)....................       $36,831,732       $40,762,285       $26,458,871
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Assumes 0.176227 acre feet of water available per acre of land.

    Comment 37: One commenter pointed out that our analysis of costs to 
operate FGD did not include loss of agricultural revenue. The State 
raised concerns in its SIP about the impact to the Nebraska economy if 
irrigated cropland were to be changed to less-valuable dry land 
farming.
    Response 37: While we acknowledge that there may be impacts to the 
economy that go beyond what was included in the BART analysis, we 
believe that it would be inconsistent to include the regional loss of 
agricultural revenue in a BART analysis. BART analyses should be done 
using EPA's Cost Control Manual, or a similar method for standardizing 
how costs are taken into account. These types of regional economic 
influences, both positive and negative, are not included in BART 
analyses as direct costs of installing and operating emission controls. 
If such impacts were to be

[[Page 40163]]

considered, different methodologies and different notions of cost 
effectiveness would have to be developed. While we are sensitive to 
broader economic impacts, they are not part of our focused analysis of 
the BART factors in making a BART determination.
    Comment 38: We received comments noting that the water requirements 
of FGD are typically a very small percentage of the water use 
requirements for a plant overall, which are largely for cooling, and it 
is not reasonable to contend that this de minimis increase in water use 
is prohibitive. The commenter also pointed out that GGS uses a ``once-
through'' system, which wastes significant amounts of water. The 
commenter notes that water saving options that have been employed in 
other water restricted locations could be employed at GGS to lessen the 
strain on water resources.
    Response 38: In general, we agree with the commenter that there are 
likely efficiency measures which could be undertaken to reduce water 
use if FGD were installed.
    Comment 39: One commenter states that any EPA-imposed regulation at 
GGS that would cause a new consumptive use of water in the over-
appropriated Platte River Basin would also increase the competition for 
water to meet the needs of federally listed threatened and endangered 
species. To that end, the commenter encouraged EPA to re-initiate 
consultation with the U.S. Fish and Wildlife Service on the water 
impacts to the listed species as well as the air impacts.
    Response 39: The FIP imposed by EPA as a result of today's action 
does not, in and of itself, cause a new consumptive use of water in the 
Platte River Basin, therefore, the commenter's initial premise is not 
correct. Furthermore, the Department of Interior has had input into 
this BART determination and rulemaking process. The U.S. Fish and 
Wildlife Service is part of the U.S. Department of the Interior, which 
is a FLM for Class I areas under the RHR. As such, the RHR requires the 
State to provide the FLM with an opportunity for consultation at least 
60 days prior to any public hearing, including an opportunity for the 
FLM to discuss their assessment of visibility impairment in any Class I 
area and to make recommendations on the development of the RPG and 
implementation of strategies to address visibility impairment. 40 CFR 
51.308(i). In its regional haze SIP, Nebraska stated it provided the 
FLMs a 60-day review period of the draft BART permits and related 
materials for GGS and NCS beginning July 1, 2008, as well as a 60-day 
review period for the draft regional haze SIP beginning November 18, 
2010. In addition, the FLMs had opportunities to provide comments 
during Nebraska's public comment period for its regional haze SIP 
submission, as well as during the public comment period for today's 
action. During these public comment periods, the Department of the 
Interior, in its comments, did not, to EPA's knowledge, raise concerns 
about any impacts to endangered species if controls were required at 
GGS, and in fact, encouraged EPA to promulgate a source-specific BART 
FIP requiring SO2 controls for GGS Units 1 and 2 at 0.06 lb/
mmBtu on a 30-day rolling average, which would likely correspond to FGD 
controls requiring water. EPA also notes that DOI provided input on the 
national Transport Rule ``Better than BART'' rulemaking.\28\
---------------------------------------------------------------------------

    \28\ 77 FR 33642 (June 7, 2012).
---------------------------------------------------------------------------

K. Comments Regarding the Transport Rule FIP

    Comment 40: One commenter made a factual error in their comment 
letter, stating that, ``EPA simultaneously proposed a federal 
implementation plan (`FIP') requiring installation of flue gas 
desulfurization (`FGD') technology at GGS to correct what it perceives 
to be deficiencies in Nebraska's BART determination.''
    Response 40: The FIP portion of this action does not in fact 
require FGD controls, but rather relies on the Transport Rule as an 
alternative for source-specific BART.
    Comment 41: One commenter referenced and incorporated its February 
28, 2012, comments on EPA's proposal that the Transport Rule is 
``Better than BART'' (Docket ID No. EPA HQ-OAR-2011-0729) and its March 
22, 2012 comments on EPA's Direct Final Rule related to state emissions 
budgets under the CSAPR (Docket ID No. EPA-HQ-2009-0941). This 
commenter also incorporated by reference the February 28, 2012, 
comments made by Earthjustice on EPA's proposal that the CSAPR is 
``Better than BART'' (Docket ID No. EPA HQ-OAR-2011-0729). The 
commenter stated that it is incorporating these comments by reference 
because these actions are ``inherently related'' to this action.
    Response 41: In today's rule, EPA is taking final action on the 
partial approval and partial disapproval of Nebraska's regional haze 
SIP. EPA is also taking final action on a FIP relying on the Transport 
Rule to satisfy BART for SO2 at one source to address 
deficiencies in the State's plan. EPA made the proposed findings 
referenced by the commenter in separate actions and the commenter is 
merely reiterating and incorporating by reference its comments on those 
separate actions. These comments are therefore beyond the scope of this 
rulemaking and are or will be addressed in those separate actions.
    Comment 42: Two commenters point out that EPA cannot rely on the 
Transport Rule ``Better than BART'' finding to meet its BART FIP 
obligation for GGS because the Transport Rule is not currently in 
effect and its fate is uncertain. 77 FR 33642 (June 7, 2012). The D.C. 
Circuit stayed the Transport Rule on December 30, 2011, pending review 
on the merits of several consolidated petitions for review of the rule. 
EME Homer City Generation, L.P. v. EPA, No. 11-1302 (D.C. Cir. Dec. 30, 
2011). As a result of the stay, the Transport Rule currently has no 
legal effect and is not a binding legal requirement on states and 
covered sources. EPA cannot rely on its Transport Rule to meet BART or 
any other requirement until the stay is lifted. Furthermore, a 
commenter points out that the Court is reviewing several petitions from 
states and the industry, and the outcome of the Court's review is 
uncertain.
    Response 42: EPA disagrees that we cannot rely on the Transport 
Rule because of the stay imposed by the DC Circuit. EPA bases this 
conclusion on the long-term focus of our analysis underlying today's 
action.
    While the Transport Rule is not currently enforceable, the air 
quality modeling analysis underlying EPA's determination that the 
Transport Rule will provide for greater reasonable progress than BART 
is based on a forward-looking projection of emissions in 2014. However, 
any year up until 2018 (the end of the first regional haze planning 
period) would have been an acceptable basis for comparing the two 
programs under the Regional Haze Rule. See 40 CFR 51.308(e)(2)(iii). We 
anticipate the requirements addressing all significant contribution and 
interference with maintenance identified in the Transport Rule will be 
implemented prior to 2018.
    We do not agree with the comment that because the Transport Rule is 
subject to review by the DC Circuit, EPA cannot move forward with 
reliance on EPA's determination that it provides for greater reasonable 
progress than BART. EPA does not view the stay imposed by the DC 
Circuit pending review of the underlying rule as undermining EPA's 
conclusion that the Transport Rule will have a greater overall positive 
impact on

[[Page 40164]]

visibility than BART both during the period of the first long-term 
strategy for regional haze and going forward into the future. EPA 
recognizes, as the commenter suggests, that EPA may be obliged to 
revisit the Nebraska regional haze SIP and FIP if the rule is not 
upheld, or if it is remanded and subsequently revised. However, EPA 
does not consider it appropriate to await the outcome of the DC 
Circuit's decision on the Transport Rule before moving forward with the 
regional haze program as EPA believes the Transport Rule has a strong 
legal basis, and a judicial decree requires the EPA to meet its 
statutory obligations to have a FIP or an approved SIP meeting the 
Regional Haze Rule requirements in place by June 15, 2012.\29\
---------------------------------------------------------------------------

    \29\ National Parks Conservation Association, et al. v. Lisa 
Jackson, Civil Action No. 1:11-cv-01548 (ABJ) (D.D.C. March 30, 
2012).
---------------------------------------------------------------------------

    Comment 43: Two commenters state that given EPA's disapproval of 
Nebraska's SO2 BART determination for GGS, EPA must 
promulgate a source-specific BART FIP with SO2 limits 
reflective of the addition of FGD controls at GGS. One commenter 
contends that due to the issuance of a finding that Nebraska failed to 
submit its regional haze SIP in a timely manner, EPA is obligated to 
either promulgate full approval of Nebraska's regional haze SIP or 
promulgate a FIP. The commenters state that EPA cannot propose to 
disapprove Nebraska's SO2 BART determination for GGS without 
concurrently proposing a FIP. One commenter stated that the GGS Units 
could meet much lower SO2 emission rates than 0.10 lbs/MMBtu 
analyzed by Nebraska with installation of new FGD systems, either wet 
or dry. They restated our conclusion that FGD at GGS with could achieve 
0.06 lb/MMBtu,\30\ a 90 percent control efficiency. The commenters 
point out the significant visibility improvements available from this 
level of control, greater than the improvement modeled by Nebraska. 
(Nebraska modeled rates of 0.15 lbs/MMBtu and 0.10 lbs/MMBtu, but no 
more stringent controls). The commenter argues that EPA's proposed FIP 
relying on the Transport Rule as an alternative to BART is legally and 
technically unjustified; installation of FGD systems at a rate of 0.06 
to 0.15 lbs/MMBtu is cost effective and results in significant 
visibility improvement; and it is arbitrary, capricious and 
unreasonable for EPA to require otherwise. In addition, the commenter 
believes additional controls are routinely being required in the 
application and implementation of regional haze in other states and for 
other sources throughout the country.\31\ Both commenters contend that 
EPA should instead promulgate a source-specific BART FIP requiring 
SO2 controls for GGS Units 1 and 2 at a limit of 0.06 lbs/
MMBtu on a 30-day rolling average.
---------------------------------------------------------------------------

    \30\ 42 FR 12780 (March 2, 2012).
    \31\ The commenter cites as examples, the final FIPs for the San 
Juan Generating Station in New Mexico (76 FR 52388) and Oklahoma (76 
FR 81727) and the proposed FIP for North Dakota (76 FR 58570).
---------------------------------------------------------------------------

    Response 43: EPA agrees with the commenter that in the absence of 
an approvable BART determination for SO2 for GGS, EPA is 
obligated to promulgate a FIP to satisfy the CAA requirements under 
section 110(c)(1), but EPA disagrees that this necessarily requires a 
source-specific SO2 BART FIP for GGS. At the point EPA 
becomes obligated to promulgate a FIP, EPA steps into the State's 
shoes, and must meet the same requirements, has flexibility to make 
technical judgments within the bounds of the rule, and, as discussed 
previously in this notice, is not statutorily obligated to impose 
source-specific controls. The regional haze rule provides certain 
flexibilities to the state (and to EPA, in the case of a FIP) to 
determine appropriate BART. Rather than requiring source-specific BART 
controls, EPA has the flexibility pursuant to 40 CFR 51.308(e)(3) to 
adopt an emissions trading program or other alternative program as long 
as the alternative provides greater reasonable progress towards 
improving visibility than BART. EPA recently finalized its rule 
determining that the trading programs in the Transport Rule, achieve 
greater reasonable progress towards the national goal of achieving 
natural visibility conditions in Class I areas than source-specific 
BART. 77 FR 33642 (June 7, 2012). While EPA opted to promulgate source-
specific SO2 FIPs in other states, such as in Oklahoma and 
New Mexico to address deficiencies in BART determinations, in its June 
7, 2012 rulemaking, EPA also promulgated FIPs for other states relying 
on CSAPR to remedy deficiencies in BART determinations. See also EPA's 
response to comments 3, 6, and 8, which are incorporated by reference.
    Comment 44: Two commenters urged EPA to require specific 
SO2 controls on GGS as a geographic enhancement under EPA's 
proposed rulemaking revising the RHR to allow the trading programs in 
the Transport Rule as an alternative program to BART.\32\ One commenter 
suggests that this may be done by proposing a geographic enhancement to 
the Transport Rule as a FIP as part of the action on the Nebraska 
regional haze plan, or by proposing a supplement to the Transport Rule 
to require lower emission limits for Nebraska as a geographic 
enhancement, or by removing Nebraska from the finding that the 
Transport Rule is better than BART.
---------------------------------------------------------------------------

    \32\ See 76 FR 82224, footnote 13, which describes how states 
may also include in their SIPs provisions applicable to a specific 
source even if no FLM agency has made such a reasonable attribution.
---------------------------------------------------------------------------

    Response 44: The primary purpose of EPA's existing regulatory 
language regarding geographic enhancements, at 40 CFR 51.308(e)(4), is 
to allow a market-based system to accommodate actions taken under the 
RAVI provisions. No RAVI finding has been certified that would apply to 
GGS. A state may always choose to include in their SIPs provisions 
applicable to a specific source even if RAVI is not triggered. In 
today's action, EPA is finalizing its partial FIP relying on the 
Transport Rule as an alternative to SO2 BART for GGS, and 
choosing not to pursue any geographic enhancements. This is based on 
EPA's separate rule finding that the trading programs of the Transport 
Rule meet the Regional Haze Rule's requirement that the average 
difference in visibility improvement at all Class I areas be greater 
under the alternative program. Therefore, EPA has met the minimum 
requirements for SO2 BART for GGS by relying on the 
Transport Rule. The commenters' suggestions that EPA should propose a 
supplement to the Transport Rule to require lower emission limits for 
Nebraska as a geographic enhancement, or remove Nebraska from the 
finding that the Transport Rule is better than BART are beyond the 
scope of today's action.
    Comment 45: EPA received many comments regarding EPA's rule 
allowing the trading programs in the Transport Rule as an alternative 
to BART. Several commenters strongly disagreed that EPA's rulemaking 
(Docket ID No. EPA-HQ-OAR-2011-0729) revising the Regional Haze Rule to 
allow the trading programs in the Transport Rule as an alternative 
program to BART provides greater visibility improvement than source-
specific BART at GGS. Commenters pointed out what they contend to be 
errors in EPA's IPM modeling assumptions for GGS emission rates for the 
2014 base case and 2014 CSAPR scenarios; omission of GGS Unit 2 
emissions and under predicted impacts at Mingo Wilderness Area from the 
IPM modeling; reliance on outdated, lower

[[Page 40165]]

Transport Rule emission budgets for several states without remodeling 
to account for the revised, higher emission budgets; \33\ and negative 
effects on the ability of each state's Class I areas to make reasonable 
progress towards the national visibility goal of achieving natural 
background conditions by 2064. One commenter provides that the language 
of the CAA at section 169A(b)(2)(A) and (c) requires source-specific 
BART emission limits and EPA may only exempt a source from BART based 
on certain demonstrations that the source does not cause or contribute 
to significant impairment of visibility, after sufficient notice and 
comment rulemaking and concurrence by the appropriate FLM. Commenters 
requested that EPA remove Nebraska from the determination that the BART 
alternative is better than source-specific BART controls in Nebraska.
---------------------------------------------------------------------------

    \33\ See 77 FR 10324 (Feb. 21, 2012) and 77 FR 10342 (Feb. 21, 
2012).
---------------------------------------------------------------------------

    Response 45: In today's rule, EPA is taking final action on the 
partial approval and partial disapproval of Nebraska's regional haze 
SIP and the FIP relying on the Transport Rule to satisfy BART for 
SO2 at one source to address the approvability issues. The 
rule referenced by the commenter is a separate action and these and 
similar comments were made in the context of that separate action. 
These comments are therefore beyond the scope of this rulemaking. These 
comments, and those similar to it, on the Transport Rule ``Better than 
BART'' rulemaking have been addressed, as appropriate, by EPA in its 
final action on the December 30, 2011, proposed rule. 77 FR 33642 (June 
7, 2012). See also EPA's response to comment 6, which is incorporated 
by reference.
    Comment 46: A commenter noted that the Transport Rule will not 
require additional SO2 controls for EGUs in Nebraska, and 
questioned the validity of an approach that appears to conclude that no 
SO2 reductions is better than a BART reduction of over 
28,000 tons per year. The commenter contends that by averaging across 
all Class I areas, EPA is allowing states like Nebraska to benefit from 
controls in other states and to install less controls under the 
Transport Rule than would be required by source specific BART.
    Response 46: EPA disagrees with the commenter's characterization of 
EPA's conclusions related to the Transport Rule ``Better than BART'' 
rulemaking. EPA refers the commenter to EPA's final action on the 
December 30, 2011, proposed rule, 77 FR 33642 (June 7, 2012), where EPA 
demonstrated that, on average, the Transport Rule results in greater 
average visibility improvement at affected Class I areas compared to 
application of BART nationwide.

L. Comments Regarding BART at Nebraska City Station

    Comment 47: One commenter stated that they believe that similar 
issues with regard to estimated cost of controls likely persisted 
throughout the cost estimations for BART at Nebraska City Station, and 
encouraged EPA to revisit these analyses.
    Response 47: The commenter's statements did not contain any detail 
or evidence to indicate that we must find the State's evaluation flawed 
and re-open it to conduct our own independent analysis.
    Furthermore, our approval of the NOX and SO2 
BART determination at Nebraska City Station rests on the State's 
determination that the minimal visibility improvement available did not 
warrant the costs of the next level of controls. For NOX, 
Nebraska concluded that based on the high incremental cost of $8,203 
\34\ per ton for the low incremental visibility improvement of 0.11 dv 
at Hercules Glades, requiring SCR was not warranted. BART for 
NOX at OPPD NCS Unit 1 was determined to be the installation 
of LNB/OFA with an emission limitation of 0.23 lbs/MMBtu.
---------------------------------------------------------------------------

    \34\ ($38,210,000 - $1,690,000)/(14,633 - 10,181) = $8,203.
---------------------------------------------------------------------------

    Similarly, for SO2, Nebraska concludes that the cost of 
installing FGD ($1,636 per ton) \35\ is not warranted considering the 
amount of visibility improvement (0.44 dv maximum improvement at 
Hercules Glades), and therefore proposes no SO2 controls as 
BART for NCS Unit 1. EPA notes that the closest Class I areas to this 
Unit are 500 km away or greater.\36\ NCS Unit 1's baseline impact is 
0.65 dv at Hercules Glades, and 0.46 dv at Wichita Mountains, for a 
cumulative baseline impact of 1.11 dv.\37\ The potential improvement 
from installing FGD at the presumptive rate of 0.15 lbs/MMBtu is 0.25 
dv on average at Hercules Glades, and 0.23 dv on average at Wichita 
Mountains, for a cumulative improvement of 0.48 dv. With an annualized 
cost of $34,720,000, this makes the dollar per deciview for presumptive 
SO2 control at NCS $72,333,333, which is well over the 
State's threshold of $40 million/deciview.
---------------------------------------------------------------------------

    \35\ Cost per ton is $1,636 at the limit of 0.10 lbs/MMBtu.
    \36\ Distance from Nebraska City Station to Hercules Glades is 
498 km; to Mingo is 630 km; and to Wichita Mountains is 695 km.
    \37\ As shown in the TSD, these calculations are based on a 
three-year average, 2001-2003. Maximum baseline impact at Hercules 
Glades was 0.933 dv in 2001, and 0.686 dv at Wichita Mountains in 
2003. These are the only two Class I areas which were impacted more 
than 0.5 dv as shown by the CALPUFF modeling for the baseline 
period.
---------------------------------------------------------------------------

M. Comments Regarding Interstate Transport

    Comment 48: One commenter stated that EPA failed to ensure that the 
Nebraska regional haze SIP will not interfere with interstate transport 
visibility requirements. The commenter cites to section 110(a)(2)(D)(i) 
of the CAA which requires states to submit new SIPs that provide for 
the implementation, maintenance, and enforcement of a new or revised 
standard within three years after promulgation of such standard, and 
specifically to section 110(a)(2)(D)(i), which applies to interstate 
transport of emissions. This ``interstate transport'' prong requires 
that SIPs be adopted to prohibit any source from emitting pollution 
which will ``(I) contribute significantly to nonattainment in, or 
interfere with maintenance by, any other state with respect to any such 
national primary or secondary ambient air quality standard, or (II) 
interfere with measures required to be included in the applicable 
implementation plan for any other state under part C of this subchapter 
to prevent significant deterioration of air quality or to protect 
visibility.'' The commenter points out that EPA issued a finding that 
Nebraska failed to submit an interstate transport SIP to address the 
1997 ozone and particulate matter NAAQS, after which Nebraska submitted 
an interstate transport SIP submittal, and EPA approved it, stating, 
``At this time, it is not possible for NDEQ to accurately determine 
whether there is interference with measures in another state's SIP 
designed to protect visibility, which is the fourth element that was 
addressed. Technical projects relating to visibility degradation are 
under development. Nebraska will be in a more advantageous position to 
address the visibility projection requirements once the initial 
regional haze SIP has been developed.'' 72 FR 71246 (Dec. 17, 2007). 
The commenter states that in its approval of the transport visibility 
prong, EPA's reliance on the regional haze SIP and caveat that in a 
vacuum the interstate transport requirements may be insufficient to 
ensure adequate visibility protection, necessitates analysis of the 
regional haze plan in conjunction with interstate transport 
requirements.
    Response 48: As the commenter notes, on April 25, 2005, EPA 
published a

[[Page 40166]]

``Finding of Failure to Submit SIPs for Interstate Transport for the 
National Ambient Air Quality Standards for 8-Hour Ozone and 
PM2.5.'' 70 FR 21147. This included a finding that Nebraska 
and other states had failed to submit SIPs to address interstate 
transport of emissions affecting visibility and started a 2-year clock 
for the promulgation of FIPs by EPA, unless the states made submissions 
to meet the requirements of section 110(a)(2)(D)(i) and EPA approved 
such submissions. Id.
    On August 15, 2006, EPA issued guidance on this topic entitled 
``Guidance for State Implementation Plan (SIP) Submissions to Meet 
Current Outstanding Obligations Under section 110(a)(2)(D)(i) for the 
8-Hour Ozone and PM2.5 National Ambient Air Quality 
Standards'' (2006 Guidance). We developed the 2006 Guidance to make 
recommendations to states for making submissions to meet the 
requirements of section 110(a)(2)(D)(i) for the 1997 8-hour ozone 
standards and the 1997 PM2.5 standards.
    As identified in the 2006 Guidance, the ``good neighbor'' 
provisions in section 110(a)(2)(D)(i) of the CAA require each state to 
have a SIP that prohibits emissions that adversely affect other states 
in ways contemplated in the statute. Section 110(a)(2)(D)(i) contains 
four distinct requirements related to the impacts of interstate 
transport. The SIP must prevent sources in the state from emitting 
pollutants in amounts which will: (1) Contribute significantly to 
nonattainment of the NAAQS in other states; (2) interfere with 
maintenance of the NAAQS in other states; (3) interfere with provisions 
to prevent significant deterioration of air quality in other states; or 
(4) interfere with efforts to protect visibility in other states. With 
respect to establishing that emissions from sources in the State would 
not interfere with measures in other states to protect visibility--
which is the subject of this particular comment--the 2006 Guidance 
recommended that states make a submission indicating that it was 
premature, at that time, to determine whether there would be any 
interference with measures in the applicable SIP for another state 
designed to ``protect visibility'' until the submission and approval of 
regional haze SIPs.
    On December 17, 2007, EPA approved Nebraska's SIP revisions for 
addressing the ``good neighbor'' provisions of the CAA in a direct 
final rulemaking. 72 FR 71245. EPA did not receive any comments on the 
2007 SIP action. In today's action, EPA is not re-opening the 2007 
approval of Nebraska's SIP as it relates to the CAA section 
110(a)(2)(D)(i). Today's action also does not serve as an approval or 
disapproval of any of Nebraska's section 110(a) infrastructure SIP 
submittals as they pertain to any NAAQS; those actions are not relevant 
to today's action and will be addressed in separate rulemakings as 
appropriate.
    Even if the visibility prong of section 110(a)(2)(D)(i), as it 
relates to the 1997 NAAQS and EPA's 2007 approval action, were relevant 
to this rulemaking, the requirements of the Act and the regional haze 
rule are satisfied by an approved SIP, a promulgated FIP, or a 
combination of a SIP and FIP. The control measures approved and 
promulgated for Nebraska in today's action will serve to prevent 
sources in Nebraska from emitting pollutants in amounts that will 
interfere with efforts to protect visibility in other states and thus 
satisfy the ``interference with visibility protection'' sub-element of 
CAA section 110(a)(2)(D)(i)(II).\38\
---------------------------------------------------------------------------

    \38\ Although the SIP is deficient as described elsewhere in 
today's action, the partial FIP addresses those deficiencies, and no 
further action is needed to address the visibility requirements. 
However, Nebraska may revise its SIP and submit the revision to us, 
to address the requirements covered by the FIP. Should such a 
revision meet CAA requirements, we would replace our FIP with 
Nebraska's SIP revision. We encourage the State to revise its SIP to 
address these requirements.
---------------------------------------------------------------------------

N. Technical Corrections

    Comment 49: OPPD pointed out an error in the Nebraska City Unit 1 
p.m. potential to emit in Table 1 of our proposal, ``Facilities with 
BART-Eligible Units in Nebraska.'' OPPD stated that the listed 
potential to emit for PM (43,792 tons per year) is too high, and 
estimated it to be 3,415 tons per year.
    Response 49: Table 1 is a listing of the units in Nebraska which 
are BART-eligible based on source category, date, and emissions. The 
43,792 figure came from Appendix 10.1 of the SIP. In response to this 
comment, we checked with the State, who confirmed that the figure was 
too high, and estimated the potential to emit to be 2,968 tons per 
year.\39\ Changing this figure does not change the determination that 
Unit 1 at Nebraska City Station is BART-subject.
---------------------------------------------------------------------------

    \39\ Email from Shelley Schneider, NDEQ to Chrissy 
Wolfersberger, EPA, dated May 17, 2012.
---------------------------------------------------------------------------

    Comment 50: NPS commented that Table 5 of the Technical Support 
Document, ``BART subject facilities in Nebraska,'' contained a 
numerical error. Impacts should read less than 0.5 dv rather than less 
than 0.05 dv.
    Response 50: The table is corrected to read as follows:

                                  Table 5--BART-Subject Facilities in Nebraska
----------------------------------------------------------------------------------------------------------------
                                                                         CALPUFF modeled impacts > 0.5 dv
           Facility                  Units         Class I area  -----------------------------------------------
                                                                       2001            2002            2003
----------------------------------------------------------------------------------------------------------------
OPPD Nebraska City Station...  1...............  Hercules Glades           0.933           0.556         2 emissions from GGS. Accordingly, EPA 
proposed to revise 40 CFR Part 52, Subpart CC to reflect EPA's proposed 
determination that the requirements of 40 CFR 51.308(e) with respect to 
emissions of SO2 from NPPD, GGS Units 1 and 2 will be met by 
40 CFR 52.1429, the Transport Rule FIP requirements for SO2 
emissions in Nebraska. In today's action, EPA made minor clarifying 
changes to the FIP language in 40 CFR 52.1435 to better set forth the 
scope and applicability of EPA's disapproval and FIP.

[[Page 40167]]

V. Statutory and Executive Order Requirements

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

    This action will apply to one facility and is therefore not a rule 
of general applicability. In addition, this rule does not impose new 
mandates, because EGUs in Nebraska are subject to the requirements of 
the Transport Rule independently of this action. Therefore, this action 
is not a ``significant regulatory action.'' This type of action is 
exempt from review under Executive Orders 12866 (58 FR 51735, October 
4, 1993) and 13563 (76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business as defined 
by the Small Business Administration's (SBA) regulations at 13 CFR 
121.201; (2) a small governmental jurisdiction that is a government of 
a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of this final action on 
small entities, I certify that this final action will not have a 
significant economic impact on a substantial number of small entities. 
The FIP for the NPPD Units being finalized today does not impose any 
new requirements on small entities. The partial approval of the SIP 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. See Mid-
Tex Electric Cooperative, Inc. v. FERC, 773 F.2d 327 (D.C. Cir. 1985). 
Moreover, due to the nature of the Federal-State relationship under the 
CAA, preparation of flexibility analysis would constitute Federal 
inquiry into the economic reasonableness of state action. The CAA 
forbids EPA to base its actions concerning SIPs on such grounds. Union 
Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 
7410(a)(2).

D. Unfunded Mandates Reform Act

    This rule does not contain a Federal mandate that may result in 
expenditures of $100 million or more, adjusted for inflation, for 
state, local, and tribal governments, in the aggregate, or the private 
sector in any one year. EPA has determined that the approval action 
proposed does not include a Federal mandate that may result in 
estimated costs of $100 million or more to either state, local, or 
tribal governments in the aggregate, or to the private sector. Thus, 
this rule is not subject to the requirements of sections 202 or 205 of 
the UMRA.
    This rule is also not subject to the requirements of section 203 of 
UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. This rule contains 
regulatory requirements that apply to two units at one coal-fired power 
plant in Nebraska.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132, because it merely addresses the 
state not fully meeting its obligation to adopt a SIP that meets the 
regional haze requirements under the CAA. Thus, Executive Order 13132 
does not apply to this action. In the spirit of Executive Order 13132, 
and consistent with EPA policy to promote communications between EPA 
and state and local governments, EPA specifically solicited comments on 
the proposed rule from state and local officials.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This rule does not have tribal implications, as specified in 
Executive Order 13175, because the action EPA is taking neither imposes 
substantial direct compliance costs on tribal governments, nor preempts 
tribal law. It will not have substantial direct effects on tribal 
governments. Thus, Executive Order 13175 does not apply to this rule.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    Executive Order 13045 (62 FR 19885, April 23, 1997), applies to any 
rule that: (1) Is determined to be economically significant as defined 
under Executive Order 12866; and (2) concerns an environmental health 
or safety risk that we have reason to believe may have a 
disproportionate effect on children. EPA interprets EO 13045 as 
applying only to those regulatory actions that concern health or safety 
risks, such that the analysis required under section 5-501 of the EO 
has the potential to influence the regulation. This action is not 
subject to EO 13045 because it implements specific standards 
established by Congress in statutes.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 (66 FR 28355, 
May 22, 2001) because it is not a significant regulatory action under 
Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical. The EPA believes that VCS are inapplicable to this action. 
Today's action does not require the public to perform activities 
conducive to the use of VCS. This action does not involve technical 
standards. Therefore, EPA did not consider the use of any voluntary 
consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994), establishes 
federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high

[[Page 40168]]

and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    We have determined that this rule will not have disproportionately 
high and adverse human health or environmental effects on minority or 
low-income populations because it increases the level of environmental 
protection for all affected populations without having any 
disproportionately high and adverse human health or environmental 
effects on any population, including any minority or low-income 
population. This rule does not impose any new mandates, because EGUs in 
Nebraska are subject to the requirements of the Transport Rule 
independently of this action. See 77 FR 33642, for an analysis of the 
implications of Executive Order 12898 in relation to EPA's final rule, 
``Regional Haze: Revisions to Provisions Governing Alternatives to 
Source-Specific Best Available Retrofit Technology (BART) 
Determinations, Limited SIP Disapprovals, and Federal Implementation 
Plans'' (June 7, 2012). The partial approval of the SIP merely approves 
state law as meeting Federal requirements and imposes no additional 
requirements beyond those imposed by state law.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. Section 804 exempts from section 801 the following types 
of rules (1) rules of particular applicability; (2) rules relating to 
agency management or personnel; and (3) rules of agency organization, 
procedure, or practice that do not substantially affect the rights or 
obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required 
to submit a rule report regarding today's action under section 801 
because this is a rule of particular applicability.

L. Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by September 4, 2012. Pursuant to CAA section 
307(d)(1)(B), this action is subject to the requirements of CAA section 
307(d) as it promulgates a FIP under CAA section 110(c).
    Filing a petition for reconsideration by the Administrator of this 
final rule does not affect the finality of this action for the purposes 
of judicial review nor does it extend the time within which a petition 
for judicial review may be filed, and shall not postpone the 
effectiveness of such rule or action. This action may not be challenged 
later in proceedings to enforce its requirements. See CAA section 
307(b)(2).

List of Subjects in 40 CFR Part 52

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

    Dated: June 15, 2012.
Lisa P. Jackson,
Administrator.
    Title 40, chapter I, of the Code of Federal Regulations is amended 
as follows:

PART 52--[AMENDED]

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

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

0
2. Sec.  52.1420 is amended by:
0
a. Revising the heading for paragraph (d) and the heading for the table 
in paragraph (d);
0
b. In paragraph (d), adding entries (3) and (4) to the table in 
numerical order; and
0
c. In paragraph (e), adding entry (25) to the table in numerical order 
to read as follows:

Sec.  52.1420  Identification of plan.

* * * * *
    (d) EPA-approved state source-specific requirements.

                               EPA-Approved Nebraska Source-Specific Requirements
----------------------------------------------------------------------------------------------------------------
                                                         State effective
         Name of source                Permit No.             date         EPA approval date      Explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
(3) Nebraska Public Power        CP07-0050............           5/11/10  7/6/2012, [Insert   EPA has only
 District, Gerald Gentleman                                                Federal Register    approved the
 Station.                                                                  citation].          elements of the
                                                                                               permit pertaining
                                                                                               to NOX
                                                                                               requirements.
(4) Omaha Public Power           CP07-0049............           2/26/09  7/6/2012, [Insert   ..................
 District, Nebraska City                                                   Federal Register
 Station.                                                                  citation].
----------------------------------------------------------------------------------------------------------------

     (e) * * *

[[Page 40169]]

                                 EPA-Approved Nebraska Nonregulatory Provisions
----------------------------------------------------------------------------------------------------------------
                                       Applicable
   Name of nonregulatory SIP         geographic or       State submittal   EPA approval date      Explanation
           provision               nonattainment area         date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
(25) Regional haze plan for the  Statewide............           6/30/11  7/6/2012, [Insert   The plan was
 first implementation period.                                              Federal Register    approved except
                                                                           citation].          for that portion
                                                                                               pertaining to SO2
                                                                                               BART for Nebraska
                                                                                               Public Power
                                                                                               District, Gerald
                                                                                               Gentleman Units 1
                                                                                               and 2, and the
                                                                                               portion of the
                                                                                               long- term
                                                                                               strategy
                                                                                               addressing the
                                                                                               SO2 BART measures
                                                                                               for these Units.
----------------------------------------------------------------------------------------------------------------

0
3. Section 52.1437 is added to read as follows:

Sec.  52.1437  Visibility protection.

    (a) Regional Haze. The requirements of section 169A of the Clean 
Air Act are not met because the regional haze plan submitted by 
Nebraska on July 13, 2011, does not include approvable measures for 
meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) with 
respect to emissions of SO2 from Nebraska Public Power 
District, Gerald Gentleman Station, Units 1 and 2. EPA has disapproved 
the provisions of the July 13, 2011 SIP pertaining to the 
SO2 BART determination for this facility, including those 
provisions of the long-term strategy addressing the SO2 BART 
measures for these units.
    (b) Measures Addressing Partial Disapproval Associated with SO2. 
The deficiencies associated with the SO2 BART determination 
for Nebraska Public Power District, Gerald Gentleman Station, Units 1 
and 2 identified in EPA's partial disapproval of the regional haze plan 
submitted by Nebraska on July 13, 2011, are satisfied by Sec.  52.1429.

[FR Doc. 2012-15192 Filed 7-5-12; 8:45 am]
BILLING CODE 6560-50-P
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