Federal Register / Vol. 77, No. 241 / Friday, December 14, 2012 / Rules and Regulations 74355 

Rate set 

For plans 

with a 

valuation date 

Immediate 

annuity rate 

(percent) 

Deferred 

annuities 

(percent) 

On or after Before i1 i2 i3 n1 n2

*******

231 1–1–13 2–1–13 0.75 4.00 4.00 4.00 7 8 

Issued in Washington, DC, on this 11th day 

of December 2012. 

Laricke Blanchard, 

Deputy Director for Policy, Pension Benefit 

Guaranty Corporation. 

[FR Doc. 2012–30202 Filed 12–13–12; 8:45 am] 

BILLING CODE 7709–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2011–0589; FRL–9726–4] 

Approval of Air Quality Implementation 

Plans; California; San Joaquin Valley; 

Attainment Plan for the 1997 8-Hour 

Ozone Standards; Technical 

Amendments 

AGENCY: U.S. Environmental Protection 

Agency (EPA). 

ACTION: Final rule; technical 

amendments. 

SUMMARY: EPA is making a technical 

amendment to the Code of Federal 

Regulations (CFR) to reflect the 

Agency’s March 1, 2012 final approval 

of the California State Implementation 

Plan for attainment of the 1997 8-hour 

ozone National Ambient Air Quality 

Standards in the San Joaquin Valley. 

This technical amendment corrects the 

CFR to properly codify the California 

Air Resources Board’s commitment to 

update the air quality modeling in the 

San Joaquin Valley 8-Hour Ozone SIP by 

December 31, 2014. 

DATES: This technical amendment is 

effective on December 14, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Frances Wicher, Air Planning Office 

(AIR–2), U.S. Environmental Protection 

Agency, Region 9, (415) 972–3957, 

wicher.frances@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we’’, ‘‘us’’ 

and ‘‘our’’ refer to EPA. 

On March 1, 2012, EPA fully 

approved the California State 

Implementation Plan (SIP) for 

attainment of the 1997 8-hour ozone 

National Ambient Air Quality Standards 

(NAAQS) in the San Joaquin Valley and 

included provisions of this SIP in the 

Code of Federal Regulations (CFR) at 40 

CFR 52.220(c). See 77 FR 12652 (March 

1, 2012). 

The regulatory text for this final 

action included paragraph 

(c)(396)(ii)(A)(2)(ii) of 40 CFR 52.220. 

This paragraph contains CARB’s 

commitment to update the air quality 

modeling in the San Joaquin Valley 8- 

Hour Ozone SIP to reflect emissions 

inventory improvements and any other 

new information by December 31, 2014 

or the date by which state 

implementation plans are due for the 

expected revision to the Federal 8-hour 

ozone standard whichever comes first, 

as provided on page 3 of CARB 

Resolution No. 11–22 (dated July 21, 

2011). CARB Resolution 11–22 

documents CARB’s adoption of the 8- 

Hour Ozone State Implementation Plan 

Revisions and Technical Revisions to 

the PM2.5 State Implementation Plan 

Transportation Conformity Budgets for 

the South Coast and San Joaquin Valley 

Air Basins (dated June 20, 2011). 

However, the amendatory language at 

the beginning of this regulatory text (77 

FR 12672) did not identify this 

paragraph and as a result this paragraph 

is not currently in the CFR. We are 

issuing this technical amendment to 40 

CFR 52.220 to correct this oversight. 

This technical amendment makes no 

change to the substance of our March 1, 

2012 approval of the SJV 8-Hour Ozone 

SIP. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Nitrogen Dioxide, Ozone, 

Volatile organic compounds. 

Dated: December 4, 2012. 

Jared Blumenfeld, 

Regional Administrator, Region IX. 

Part 52, Chapter I, Title 40 of the Code 

of Federal Regulations is amended as 

follows: 

PART 52 [AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart F—California 

■ 2. Section 52.220 is amended by 

adding paragraph (c)(396)(ii)(A)(2)(ii) to 

read as follows: 

§ 52.220 Identification of plan. 

* * * * * 

(c) * * * 

(396) * * * 

(ii) * * * 

(A) * * * 

(2) * * * 

(ii) Commitment to update the air 

quality modeling in the SJV 2007 Ozone 

Plan to reflect the emissions inventory 

improvements and any other new 

information by December 31, 2014 or 

the date by which state implementation 

plans are due for the expected revision 

to the Federal 8-hour ozone standard 

whichever comes first, as provided on 

page 3. 

* * * * * 

[FR Doc. 2012–30245 Filed 12–13–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2011–0114; FRL–9751–6] 

Approval, Disapproval and 

Promulgation of State Implementation 

Plans; State of Utah; Regional Haze 

Rule Requirements for Mandatory 

Class I Areas Under 40 CFR 51.309 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is partially approving 

and partially disapproving a State 

Implementation Plan (SIP) revision 

submitted by the State of Utah on May 

26, 2011 that addresses regional haze. 

EPA is also approving specific sections 

of a State of Utah SIP revision submitted 

on September 9, 2008 to address 

regional haze. These SIP revisions were 

submitted to address the requirements 

of the Clean Air Act (CAA or Act) and 

our rules that require states to prevent 

any future and remedy any existing 

man-made impairment of visibility in 

mstockstill on DSK4VPTVN1PROD with 

74356 Federal Register / Vol. 77, No. 241 / Friday, December 14, 2012 / Rules and Regulations 

mandatory Class I areas caused by 

emissions of air pollutants from 

numerous sources located over a wide 

geographic area (also referred to 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 taking this action pursuant 

to section 110 of the CAA. 

DATES: This final rule is effective 

January 14, 2013. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R08–OAR–2011–0114. All 

documents in the docket are listed on 

the www.regulations.gov Web site. 

Publicly available docket materials are 

available either electronically through 

www.regulations.gov, or in hard copy at 

the Air Program, Environmental 

Protection Agency (EPA), Region 8, 

1595 Wynkoop Street, Denver, Colorado 

80202–1129. EPA requests that if, at all 

possible, you contact the individual 

listed in the FOR FURTHER INFORMATION

CONTACT section to view the hard copy 

of the docket. You may view the hard 

copy of the docket Monday through 

Friday, 8 a.m. to 4 p.m., excluding 

Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Laurel Dygowski, Air Program, 

Mailcode 8P–AR, Environmental 

Protection Agency, Region 8, 1595 

Wynkoop Street, Denver, Colorado 

80202–1129, (303) 312–6144, 

dygowski.laurel@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Definitions 

For the purpose of this document, we 

are giving meaning to certain words or 

initials as follows: 

i. The words or initials Act or CAA mean 

or refer to the Clean Air Act, unless the 

context indicates otherwise. 

ii. The initials BART mean or refer to Best 

Available Retrofit Technology. 

iii. The initials CAC mean or refer to clean 

air corridors. 

iv. The initials CEED mean or refer to the 

Center for Energy and Economic 

Development. 

v. The initials EGUs mean or refer to 

electric generating units. 

vi. The words EPA, we, us or our mean or 

refer to the United States Environmental 

Protection Agency. 

vii. The initials GCVTC mean or refer to 

the Grand Canyon Visibility Transport 

Commission. 

viii. The initials MRR mean or refer to 

monitoring, recordkeeping, and reporting. 

ix. The initials LNB mean or refer to low 

NOX burner. 

x. The initials NOX mean or refer to 

nitrogen oxides. 

xi. The initials NSR mean or refer to new 

source review. 

xii. The initials OFA mean or refer to 

overfire air. 

xiii. The initials PM2.5 mean or refer to 

particulate matter with an aerodynamic 

diameter of less than 2.5 micrometers. 

xiv. The initials PM10 mean or refer to 

particulate matter with an aerodynamic 

diameter of less than 10 micrometers. 

xv. The initials PSD mean or refer to 

prevention of significant deterioration. 

xvi. The initials RHR mean or refer to the 

Regional Haze Rule. 

xvii. The initials SIP mean or refer to State 

Implementation Plan. 

xviii. The initials SO2 mean or refer to 

sulfur dioxide. 

xix. The initials SOFA mean or refer to 

separated overfire air. 

xx. The words Utah or State mean or refer 

to the State of Utah. 

xxi. The initials UAR mean or refer to the 

Utah Administrative Rules. 

xxii. The initials WESP mean or refer to 

wet electrostatic precipitator. 

xxiii. The initials WRAP mean or refer to 

the Western Regional Air Partnership. 

Table of Contents 

I. Background 

A. Regional Haze 

B. Lawsuits 

C. Our Proposal 

D. Public Participation 

II. Final Action 

III. Basis for Our Final Action 

IV. Issues Raised by Commenters and EPA’s 

Responses 

A. Backstop Trading Program 

B. Legal Issues 

1. EPA Authority 

2. Presumptive Limits 

3. Compliance With the Requirements of 

40 CFR 51.308 

4. Utah’s Permitting Process 

5. Enforceability of BART Emission Limits 

C. Applicability of the BART Guidelines 

D. PM BART 

E. General Comments on BART 

F. Reasonable Progress 

G. Clean Air Corridors (CACs) 

H. General SIP Comments 

I. Additional Comments Pertaining to 

BART 

V. Statutory and Executive Order Reviews 

I. Background 

The CAA requires each state to 

develop plans, referred to as SIPs, to 

meet various air quality requirements. A 

state must submit its SIPs and SIP 

revisions to us for approval. Once 

approved, a SIP is enforceable by EPA 

and citizens under the CAA, also known 

as being federally enforceable. If a state 

fails to make a required SIP submittal or 

if we find that a state’s required 

submittal is incomplete or 

unapprovable, then we must make a 

finding to that effect. This action 

involves the requirement that states 

have SIPs that address regional haze. 

A. Regional Haze 

In 1990, Congress added section 169B 

to the CAA to address regional haze 

issues, and we promulgated regulations 

addressing regional haze in 1999. 64 FR 

35714 (July 1, 1999), codified at 40 CFR 

part 51, subpart P. The requirements for 

regional haze, found at 40 CFR 51.308 

and 51.309, are included in our 

visibility protection regulations at 40 

CFR 51.300–309. The requirement to 

submit a regional haze SIP applies to all 

50 states, the District of Columbia and 

the Virgin Islands. States were required 

to submit a SIP addressing regional haze 

visibility impairment no later than 

December 17, 2007. 40 CFR 51.308(b). 

Utah submitted SIPs addressing 

regional haze on September 9, 2008 and 

May 26, 2011. (These superseded and 

replaced prior SIP submittals dated 

December 12, 2003 and August 8, 2004). 

B. Lawsuits 

In a lawsuit in the U.S. District Court 

for the District of Colorado, 

environmental groups sued us for our 

failure to take timely action with respect 

to the regional haze requirements of the 

CAA and our regulations for the State of 

Utah. As a result of this lawsuit, we 

entered into a consent decree. The 

consent decree requires that we sign a 

notice of final rulemaking addressing 

the regional haze requirements for Utah 

by October 31, 2012. We are meeting 

that requirement with the signing of this 

notice of final rulemaking. 

C. Our Proposal 

We published our notice of proposed 

rulemaking in the Federal Register on 

May 16, 2012 (77 FR 28825). In that 

notice, we provided a detailed 

description of the various regional haze 

requirements. We are not repeating that 

description here; instead, the reader 

should refer to our notice of proposed 

rulemaking for further detail. 

In our proposal, we proposed to 

approve all sections of the May 26, 2011 

SIP submittal as meeting the 

requirements under 40 CFR 51.309, with 

the exception of the requirements under 

40 CFR 51.309(d)(4)(vii) pertaining to 

nitrogen oxides (NOX) and particulate 

matter (PM) best available retrofit 

technology (BART). EPA proposed to 

disapprove the State’s NOX and PM 

BART determinations and limits in 

section D.6.d of the SIP for the following 

four subject-to-BART electric generating 

units (EGUs): PacifiCorp Hunter Unit 1, 

PacifiCorp Hunter Unit 2, PacifiCorp 

Huntington Unit 1, and PacifiCorp 

Huntington Unit 2. EPA proposed to 

disapprove these BART determinations 

because they do not comply with our 

mstockstill on DSK4VPTVN1PROD with 

Federal Register / Vol. 77, No. 241 / Friday, December 14, 2012 / Rules and Regulations 74357 

1 40 CFR 51.309(d)(vii) provides that ‘‘The 

implementation plan must contain any necessary 

long term strategies and BART requirements for 

stationary source PM and NOX emissions. Any such 

BART provisions may be submitted pursuant to 

either § 51.308(e)(1) or § 51.308(e)(2).’’ 

regulations under 40 CFR 51.308(e)(1) 1

pertaining to the factors that need to be 

considered as part of a BART 

determination. EPA also proposed to 

disapprove the State’s SIP because it 

does not contain the provisions 

necessary to make BART limits 

practically enforceable as required by 

section 110(a)(2) of the CAA and 

Appendix V to part 51. 

We proposed to approve specific 

sections of the State’s September 9, 2008 

SIP submittal. Specifically, we proposed 

to approve Utah Administrative Rules 

(UAR) R307–250—Western Backstop 

Sulfur Dioxide Trading Program and 

R307–150—Emission Inventories. R307– 

250, in conjunction with the SIP, 

implements the backstop trading 

program provisions in accordance with 

the requirements of the regional haze 

rule (RHR) under 40 CFR 51.309. The 

purpose of R305–150 is to establish 

consistent emission inventory reporting 

requirements for stationary sources in 

Utah to determine whether sulfur 

dioxide (SO2) emissions are below the 

SO2 milestones established for the 

trading program. 

D. Public Participation 

We requested comments on all 

aspects of our proposed action and 

provided a sixty-day comment period, 

with the comment period closing on 

July 16, 2012. We received comments on 

our proposed rule that supported our 

proposed action and that were critical of 

our proposed action. In this action, we 

are responding to the comments we 

have received, taking final rulemaking 

action, and explaining the bases for our 

action. 

II. Final Action 

We are approving all sections of the 

May 26, 2011 SIP submittal as meeting 

the requirements under 40 CFR 51.309, 

with the exception of the requirements 

under 40 CFR 51.309(d)(4)(vii) 

pertaining to NOX and PM BART. EPA 

is disapproving the State’s NOX and PM 

BART determinations and limits in 

section D.6.d of the SIP for the following 

four subject-to-BART EGUs: PacifiCorp 

Hunter Unit 1, PacifiCorp Hunter Unit 

2, PacifiCorp Huntington Unit 1, and 

PacifiCorp Huntington Unit 2. EPA is 

disapproving these BART 

determinations because they do not 

comply with our regulations under 40 

CFR 51.308(e)(1). EPA is also 

disapproving the State’s SIP because it 

does not contain the provisions 

necessary to make BART limits 

practically enforceable as required by 

section 110(a)(2) of the CAA and 

Appendix V to part 51. 

We are approving specific sections of 

the State’s September 9, 2008 SIP 

submittal. Specifically, we are 

approving UAR R307–250—Western 

Backstop Sulfur Dioxide Trading 

Program and R307–150—Emission 

Inventories. We are taking no action on 

the rest of the September 9, 2008 

submittal as the May 26, 2011 submittal 

supersedes and replaces the remaining 

sections of the September 9, 2008 SIP 

submittal. The State also submitted SIPs 

on December 12, 2003 and August 8, 

2004 to meet the requirements of the 

RHR. These submittals have been 

superseded and replaced by the 

September 9, 2008 and May 26, 2011 

submittals. We are taking no action on 

section G—Long-Term Strategy for Fire 

Programs of the May 26, 2011 submittal 

as we have proposed approval of this 

section in a separate notice (76 FR 

69217, November 8, 2011). 

III. Basis for Our Final Action 

We have fully considered all 

significant comments on our proposal 

and have concluded that no changes 

from our proposal are warranted. Our 

action is based on an evaluation of 

Utah’s regional haze SIP submittal 

against the regional haze requirements 

at 40 CFR 51.300–51.309 and CAA 

sections 169A and 169B. All general SIP 

requirements contained in CAA section 

110, other provisions of the CAA, and 

our regulations applicable to this action 

were also evaluated. The purpose of this 

action is to ensure compliance with 

these requirements. Our authority for 

action on Utah’s SIP submittal is based 

on CAA section 110(k). 

We are approving most of the State’s 

regional haze SIP provisions because 

they meet the relevant RHR 

requirements and disapproving others 

because they do not meet the 

requirements of the RHR or other 

requirements of the CAA. Most of the 

adverse comments we received 

concerning our proposed approval of 

the regional haze SIP pertained to our 

proposed approval of the SO2 backstop 

trading program and disapproval of the 

BART determinations for PacifiCorp 

Hunter Unit 1 and Unit 2, and 

PacifiCorp Huntington Unit 1 and Unit 

2. However, the comments have not 

convinced us that the State did not meet 

the requirements of 40 CFR 51.309 that 

we proposed to approve or that the State 

met the requirements of the RHR or the 

CAA for which we proposed 

disapproval. 

IV. Issues Raised by Commenters and 

EPA’s Responses 

A. Backstop Trading Program 

EPA has proposed to approve the SO2

backstop trading program components 

of the RH SIPs for all participating 

States and has done so through four 

separate proposals: for the Bernalillo 

County proposal see 77 FR 24768 (April 

25, 2012); for the Utah proposal see 77 

FR 28825 (May 15, 2012); for the 

Wyoming proposal see 77 FR 30953 

(May 24, 2012); finally, for the New 

Mexico proposal see 77 FR 36043 (June 

15, 2012). National conservation 

organizations paired with organizations 

local to each state have together 

submitted very similar, if not identical, 

comments on various aspects of EPA’s 

proposed approval of these common 

program components. These comment 

letters may be found in the docket for 

each proposal and are dated as follows: 

May 25, 2012 for Bernalillo County; July 

16, 2012 for Utah; July 23, 2012 for 

Wyoming; and July 16, 2012 for New 

Mexico. Each of the comment letters has 

attached a consultant’s report dated May 

25, 2012, and titled: ‘‘Evaluation of 

Whether the SO2 Backstop Trading 

Program Proposed by the States of New 

Mexico, Utah and Wyoming and 

Albuquerque-Bernalillo County Will 

Result in Lower SO2 Emissions than 

Source-Specific BART.’’ In this section, 

we address and respond to those 

comments we identified as being 

consistently submitted and specifically 

directed to the component of the 

published proposals dealing with the 

submitted SO2 backstop trading 

program. For our organizational 

purposes, any additional or unique 

comments found in the conservation 

organization letter that is applicable to 

this proposal (i.e., for the State of Utah) 

will be addressed in the next section 

where we also address all other 

comments received. 

Comment: The commenter 

acknowledges that prior case law 

affirms EPA’s regulatory basis for having 

‘‘better than BART’’ alternative 

measures, but nevertheless asserts that it 

violates Congress’ mandate for an 

alternative trading program to rely on 

emissions reductions from non-BART 

sources and electric generating units 

(EGUs) from compliance with BART. 

Response: The CAA requires BART 

‘‘as may be necessary to make 

reasonable progress toward meeting the 

national goal’’ of remedying existing 

impairment and preventing future 

impairment at mandatory Class I areas. 

See CAA Section 169A(b)(2) (emphasis 

added). In 1999, EPA issued regulations 

allowing for alternatives to BART based 

mstockstill on DSK4VPTVN1PROD with 

74358 Federal Register / Vol. 77, No. 241 / Friday, December 14, 2012 / Rules and Regulations 

2The Grand Canyon Visibility Transport 

Commission, Recommendations for Improving 

Western Vistas at 32 (June 10, 1996). 

on a reading of the CAA that focused on 

the overarching goal of the statute of 

achieving progress. EPA’s regulations 

provided states with the option of 

implementing an emissions trading 

program or other alternative measure in 

lieu of BART so long as the alternative 

would result in greater reasonable 

progress than BART. We note that this 

interpretation of CAA Section 

169A(B)(2) was determined to be 

reasonable by the D.C. Circuit in Center 

for Energy and Economic Development 

v. EPA, 398 F.3d 653, 659–660 (D.C. Cir. 

2005) in a challenge to the backstop 

market trading program under Section 

309, and again found to reasonable by 

the D.C. Circuit in Utility Air Regulatory 

Group v. EPA, 471 F.3d 1333, 1340 (D.C. 

Cir. 2006)(‘‘* * * [W]e have already 

held in CEED that EPA may leave states 

free to implement BART-alternatives so 

long as those alternatives also ensure 

reasonable progress.’’). Our regulations 

for alternatives to BART, including the 

provisions for a backstop trading 

program under Section 309, are 

therefore consistent with the CAA and 

not in issue in this action approving a 

SIP submitted under those regulations. 

We have reviewed the submitted 309 

trading program SIPs to determine 

whether each has the required backstop 

trading program (see 40 CFR 

51.309(d)(4)(v)), and whether the 

features of the program satisfy the 

requirements for trading programs as 

alternatives to BART (see 40 CFR 

51.308(e)(2)). Our regulations make 

clear that any market trading program as 

an alternative to BART contemplates 

market participation from a broader list 

of sources than merely those sources 

that are subject to BART. See 40 CFR 

51.308(e)(2)(i)(B). 

Comment: The submitted 309 trading 

program is defective because only three 

of nine transport states remain in the 

program. The Grand Canyon Visibility 

Transport Commission (GCVTC) Report 

clearly stated that the program must be 

‘‘comprehensive.’’ The program fails to 

include the other western states that 

account for the majority of sulfate 

contribution in the Class I areas of 

participating states, and therefore Class 

I areas on the Colorado Plateau will see 

little or no visibility benefit. Nonparticipation by other transport region 

states compounds the program’s 

deficiencies. 

Response: We disagree that the 309 

trading program is defective because 

only three States remain in the program. 

EPA’s regulations do not require a 

minimum number of Transport Region 

States to participate in the 309 trading 

program, and there is no reason to 

believe that the limited participation by 

the nine Transport States will limit the 

effectiveness of the program in the three 

States that have submitted 309 SIPs. The 

commenter’s argument is not supported 

by the regional haze regulations and is 

demonstrably inconsistent with the 

resource commitments of the Transport 

Region States that have worked for 

many years in the WRAP to develop and 

submit SIPs to satisfy 40 CFR 51.309. At 

the outset, our regulations affirm that 

‘‘certain States * * * may choose’’ to 

comply with the 40 CFR 51.309 

requirements and conversely that ‘‘[a]ny 

Transport Region State [may] elect not 

to submit an implementation plan’’ to 

meet the optional requirements. 40 CFR 

51.309(a); see also 40 CFR 51.309(f). We 

have also previously observed how the 

WRAP, in the course of developing its 

technical analyses as the framework for 

a trading program, ‘‘understood that 

some States and Tribes may choose not 

to participate in the optional program 

provided by 40 CFR 51.309.’’ 68 FR 

33769 (June 5, 2003). Only five of nine 

Transport Region States initially opted 

to participate in the backstop trading 

program in 2003, and of those initial 

participants only Oregon and Arizona 

later elected not to submit 309 SIPs. 

We disagree with the commenter’s 

assertion that Class I areas on the 

Colorado Plateau will see little or no 

visibility benefit. Non-participating 

states must account for sulfate 

contributions to visibility impairment at 

Class I areas by addressing all 

requirements that apply under 40 CFR 

51.308. To the extent Wyoming, New 

Mexico and Utah sources ‘‘do not 

account for the majority of sulfate 

contribution’’ at the 16 class I areas on 

Colorado Plateau, there is no legal 

requirement that they account for SO2

emissions originating from sources 

outside these participating states. Aside 

from this, the modeling results detailed 

in the proposed rulemaking show 

projected visibility improvement for the 

20 percent worst days in 2018 and no 

degradation in visibility conditions on 

the 20 percent best days at all 16 of the 

mandatory Class I areas under the 

submitted 309 plan. 

Finally, we do not agree with the 

commenter’s characterization of the 

GCVTC Report, which used the term 

‘‘comprehensive’’ only in stating the 

following: ‘‘It is the intent of [the 

recommendation for an incentive-based 

trading program] that [it] include as 

many source categories and species of 

pollutants as is feasible and technically 

defensible. This preference for a 

‘comprehensive’ market is based upon 

the expectation that a comprehensive 

program would be more effective at 

improving visibility and would yield 

more cost-effective emission reduction 

strategies for the region as a whole.’’ 2

It is apparent that the GCVTC 

recommended comprehensive source 

coverage to optimize the market trading 

program. This does not necessitate or 

even necessarily correlate with 

geographic comprehensiveness as 

contemplated by the comment. We note 

that the submitted backstop trading 

program does in fact comprehensively 

include ‘‘many source categories,’’ as 

may also be expected for any intrastate 

trading program that any state could 

choose to develop and submit under 40 

CFR 51.308(e)(2). As was stated in our 

proposal, section 51.309 does not 

require the participation of a certain 

number of states to validate its 

effectiveness. 

Comment: The submitted 309 trading 

program is defective because the 

pollutant reductions from participating 

states have little visibility benefit in 

each other’s Class I areas. The states that 

have submitted 309 SIPs are ‘‘largely 

non-contiguous’’ in terms of their 

physical borders and their air shed 

impacts. Sulfate emissions from each of 

the participating states have little effect 

on Class I areas in other participating 

states. 

Response: We disagree. The 309 

program was designed to address 

visibility impairment for the sixteen 

Class I areas on the Colorado Plateau. 

New Mexico, Wyoming and Utah are 

identified as Transport Region States 

because the GCVTC had determined 

they could impact the Colorado Plateau 

class I areas. The submitted trading 

program has been designed by these 

transport region states to satisfy their 

requirements under 40 CFR 51.309 to 

address visibility impairment at the 

sixteen Class I areas. The strategies in 

these plans are directed toward a 

designated clean-air corridor that is 

defined by the placement of the 16 Class 

I areas, not the placement of state 

borders. ‘‘Air sheds’’ that do not relate 

to haze at these Class I areas or that 

relate to other Class I areas are similarly 

not relevant to whether the 

requirements for an approvable 309 

trading program are met. As applicable, 

any transport region state, with Class I 

areas not on the Colorado Plateau, 

implementing the provisions of section 

309 must also separately demonstrate 

reasonable progress for any additional 

mandatory Class I areas other than the 

16 Class I areas located within the state. 

See 40 CFR 51.309(g). More broadly, the 

state must submit a long-term strategy to 

mstockstill on DSK4VPTVN1PROD with 

Federal Register / Vol. 77, No. 241 / Friday, December 14, 2012 / Rules and Regulations 74359 

address these additional Class I areas as 

well as those Class I areas located 

outside the state, which may be affected 

by emissions from the state. 40 CFR 

51.309(g) and 51.308(d)(2). In 

developing long-term strategies, the 

Transport Region States may take full 

credit for visibility improvements that 

would be achieved through 

implementation of the strategies 

required by 51.309(d). A state’s 

satisfaction of the requirements of 

51.309(d), and specifically the 

requirement for backstop trading 

program, is evaluated independently 

from whether a state has satisfied the 

requirements of 51.309(g). In neither 

case, however, does the approvability 

inquiry center on the location or 

contiguousness of state borders. 

Comment: The emission benchmark 

used in the submitted 309 trading 

program is inaccurate. The ‘‘better-thanBART’’ demonstration needs to analyze 

BART for each source subject to BART 

in order to evaluate the alternative 

program. The submitted 309 trading 

program has no BART analysis. The 

‘‘better-than-BART’’ demonstration does 

not comply with the regional haze 

regulations when it relies on the 

presumptive SO2 emission rate of 0.15 

lb/MMBtu for most coal-fired EGUs. The 

presumptive SO2 limits are 

inappropriate because EPA has 

elsewhere asserted that ‘‘presumptive 

limits represented control capabilities at 

the time the BART Rule was 

promulgated, and that [EPA] expected 

that scrubber technology would 

continue to improve and control costs 

would continue to decline.’’ 77 FR 

14614 (March 12, 2012). 

Response: We disagree that the 

submitted 309 trading program requires 

an analysis that determines BART for 

each source subject to BART. Source 

specific BART determinations are not 

required to support the better-thanBART demonstration when the 

‘‘alternative measure has been designed 

to meet a requirement other than 

BART.’’ See 40 CFR 51.308(e)(2)(i)(C). 

The requirements of Section 309 are 

meant to implement the 

recommendations of the Grand Canyon 

Visibility Transport Commission and 

are regulatory requirements ‘‘other than 

BART’’ that are part of a long-term 

strategy to achieve reasonable progress. 

As such, in its analysis, the State may 

assume emission reductions ‘‘for similar 

types of sources within a source 

category based on both source-specific 

and category-wide information, as 

appropriate.’’ See id. The 309 States 

used this approach in developing their 

emission benchmark, and we view it to 

be consistent with what we have 

previously stated regarding the 

establishment of a BART benchmark. 

Specifically, we have explained that 

states designing alternative programs to 

meet requirements other than BART 

‘‘may use simplifying assumptions in 

establishing a BART benchmark based 

on an analysis of what BART is likely 

to be for similar types of sources within 

a source category.’’ 71 FR 60619 

(October 13, 2006). 

We also previously stated that ‘‘we 

believe that the presumptions for EGUs 

in the BART guidelines should be used 

for comparisons to a trading program or 

other alternative measure, unless the 

State determines that such 

presumptions are not appropriate.’’ Id. 

Our reasoning for this has also long 

been clear. While EPA recognizes that a 

case-by-case BART analysis may result 

in emission limits more stringent than 

the presumptive limits, the presumptive 

limits are reasonable and appropriate for 

use in assessing regional emissions 

reductions for the better than BART 

demonstration. See 71 FR 60619 (‘‘the 

presumptions represent a reasonable 

estimate of a stringent case BART 

because they would be applied across 

the board to a wide variety of units with 

varying impacts on visibility, at power 

plants of varying size and distance from 

Class I areas’’). The submitted SIP 

revisions from the 309 states have 

accordingly and appropriately, followed 

our advice that the presumptions for 

EGUs in the BART guidelines, generally 

‘‘should’’ be used for comparisons to the 

trading program unless the state 

determines otherwise. 

EPA’s expectation that scrubber 

technology would continue to improve 

and that control costs would continue to 

decline is a basis for not regarding 

presumptive limits as a default or safe 

harbor BART determination when the 

BART Guidelines otherwise call for a 

complete, case-by-case analysis. We 

believe it was reasonable for the 

developers of the submitted trading 

program to use the presumptive limits 

for EGUs in establishing the emission 

benchmark, particularly since the 

methodology used to establish the 

emission benchmark was established 

near in time to our promulgation of the 

presumptive limits as well as our 

guidance that they should be used. We 

do not think the assumptions used at 

the time the trading program was 

developed, including the use of 

presumptive limits, were unreasonable. 

Moreover, the commenter has not 

demonstrated how the use of 

presumptive limits as a simplifying 

assumption at that time, or even now, 

would be flawed merely because EPA 

expects that scrubber technology and 

costs will continue to improve. 

Comment: The presumptive SO2

emission rate overstates actual 

emissions from sources that were 

included in the BART benchmark 

calculation. In addition, states in the 

transport region have established or 

proposed significantly more stringent 

BART limits for SO2. Using actual SO2

emission data for EGUs, SO2 emissions 

would be 130,601 tpy, not the 

benchmark of 141,859 tpy submitted in 

the 309 trading program. Using a 

combination of actual emissions and 

unit-specific BART determinations, the 

SO2 emissions would be lower still at 

123,529 tpy. Finally, the same data EPA 

relied on to support its determination 

that reductions under the Cross State 

Air Pollution Rule are ‘‘better-thanBART’’ would translate to SO2

emissions of 124,740 tpy. These 

analyses show the BART benchmark is 

higher than actual SO2 emissions 

reductions achievable through BART. It 

follows that the submitted 309 trading 

program is flawed because it cannot be 

deemed to achieve ‘‘greater reasonable 

progress’’ than BART. 

Response: The BART benchmark 

calculation does not overstate emissions 

because it was not intended to assess 

actual emissions at BART subject 

sources nor was it intended to assess the 

control capabilities of later installed 

controls. Instead, the presumptive SO2

emission rate served as a necessary 

simplifying assumption. When the 

states worked to develop the 309 trading 

program, they could not be expected to 

anticipate the future elements of caseby-case BART determinations made by 

other states (or EPA, in the case of a 

BART determination through any 

federal implementation plan), nor could 

they be expected to anticipate the 

details of later-installed SO2 controls or 

the future application of enforceable 

emission limits to those controls. The 

emissions projections by the WRAP 

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 in 

this planning period. In developing a 

profile of planning period emissions to 

support each state’s reasonable progress 

goals, as well as the submitted trading 

program, it was recognized that the final 

control decisions by all of the states 

were not yet complete, as decisions as 

they may pertain to emissions from 

BART eligible sources. Therefore, we 

believe it is appropriate that the analysis 

and demonstration is based on data that 

was available to the states at the time 

they worked to construct the SO2

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trading program. The states did make 

appropriate adjustments based on 

information that was available to them 

at the time. Notably, the WRAP 

appropriately adjusted its use of the 

presumptive limits in the case of 

Huntington Units 1 and 2 in Utah, 

because those units were already subject 

to federally enforceable SO2 emission 

rates that were lower than the 

presumptive rate. The use of actual 

emissions data after the 2006 baseline is 

not relevant to the demonstration that 

has been submitted. 

Comment: SO2 emissions under the 

309 trading program would be 

equivalent to the SO2 emissions if 

presumptive BART were applied to each 

BART-subject source. Because the 

reductions are equivalent, the submitted 

309 trading program does not show, by 

‘‘the clear weight of the evidence,’’ that 

the alternative measure will result in 

greater reasonable progress than would 

be achieved by requiring BART. In view 

of the reductions being equivalent, it is 

not proper for EPA to rely on ‘‘nonquantitative factors’’ in finding that the 

SO2 emissions trading program achieves 

greater reasonable progress. 

Response: We recognize that the 2018 

SO2 milestone equals the BART 

benchmark and that the benchmark 

generally utilized the presumptive 

limits for EGUs, as was deemed 

appropriate by the states who worked 

together to develop the trading program. 

If the SO2 milestone is exceeded, the 

trading program will be activated. 

Under this framework, sources that 

would otherwise be subject to the 

trading program have incentives to 

make independent reductions to avoid 

activation of the trading program. We 

cannot discount that the 2003 309 SIP 

submittal may have already influenced 

sources to upgrade their plants before 

any case-by-case BART determination 

under Section 308 may have required it. 

In addition, the trading program was 

designed to encourage early reductions 

by providing extra allocations for 

sources that made reductions prior to 

the program trigger year. Permitting 

authorities that would otherwise permit 

increases in SO2 emissions for new 

sources would be equally conscious of 

the potential impacts on the 

achievement of the milestone. We note 

that the most recent emission report for 

the year 2010 shows a 35% reduction in 

emissions from 2003. The 309 trading 

program is designed as a backstop such 

that sources would work to accomplish 

emission reductions through 2018 that 

would be superior to the milestone and 

the BART benchmark. If instead the 

backstop trading program is triggered, 

the sources subject to the program 

would be expected to make any 

reductions necessary to achieve the 

emission levels consistent with each 

source’s allocation. We do not believe 

that the ‘‘clear weight of the evidence’’ 

determination referenced in 40 CFR 

51.308(e)(2)(E)—in short, a 

determination that the alternative 

measure of the 309 trading program 

achieves greater reasonable progress 

than BART—should be understood to 

prohibit setting the SO2 milestone to 

equal the BART benchmark. Our 

determination that the 2018 SO2

milestone and other design features of 

the 309 SIP will achieve greater 

reasonable progress than would be 

achieved through BART is based on our 

understanding of how the SIP will 

promote and sustain emission 

reductions of SO2 as measured against a 

milestone. Sources will be actively 

mindful of the participating states’ 

emissions inventory and operating to 

avoid exceeding the milestone, not 

trying to maximize their emissions to be 

equivalent to the milestone, as this 

comment suggests. We note the 2018 

milestone constitutes an emissions cap 

that persists after 2018 unless the 

trading program can be replaced via 

future SIP revisions submitted for EPA 

approval that will meet the BART and 

reasonable progress requirements of 40 

CFR 51.308. See 40 CFR 

51.309(d)(4)(vi)(A). 

Comment: In proposing to find that 

the SO2 trading program achieves 

greater reasonable progress than BART, 

EPA’s reliance on the following features 

of the 309 trading program is flawed: 

non-BART emission reductions, a cap 

on new growth, and a mass-based cap 

on emissions. The reliance on nonBART emission reductions is ‘‘a hollow 

promise’’ because there is no evidence 

that the trading program will be 

triggered for other particular emission 

sources, and if the program is never 

triggered there will be no emission 

reductions from smaller non-BART 

sources. The reliance on a cap on future 

source emissions is also faulty because 

there is no evidence the trading program 

will be triggered, and thus the cap may 

never be implemented. Existing 

programs that apply to new sources will 

already ensure that SO2 emissions from 

new sources are reduced to the 

maximum extent. EPA’s discussion of 

the advantages of a mass-based cap is 

unsupported and cannot be justified. 

EPA wrongly states that a mass-based 

cap based on actual emissions is more 

stringent than BART. There should not 

be a meaningful gap between actual and 

allowable emissions under a proper 

BART determination. A mass-based cap 

does not effectively limit emissions 

when operating at lower loads and, as 

an annual cap, does not have restrictive 

compliance averaging. EPA’s argument 

implies that BART limits do not apply 

during startup, shutdown or 

malfunction events, which is not 

correct. The established mass-based cap 

would allow sources to operate their 

SO2 controls less efficiently, because 

some BART-subject EGUs already 

operate with lower emissions than the 

presumptive SO2 emission rate of 0.15 

lb/MMBtu and because some EGUs were 

assumed to be operating at 85% 

capacity when their capacity factor (and 

consequently their SO2 emissions in 

tpy) was lower. 

Response: We disagree that it is 

flawed to assess the benefits found in 

the distinguishing features of the trading 

program. The backstop trading program 

is not specifically designed so that it 

will be activated. Instead, sources that 

are covered by the program are on 

notice that it will be triggered if the 

regulatory milestones are not achieved. 

Therefore, the backstop trading program 

would be expected to garner reductions 

to avoid its activation. It also remains 

true that if the trading program is 

activated, all sources subject to the 

program, including smaller non-BART 

sources would be required to secure 

emission reductions as may be 

necessary to meet their emission 

allocations under the program. 

We also disagree that the features of 

the 2018 milestone as a cap on future 

source emissions and as a mass-based 

cap has no significance. As detailed in 

our proposal, the submitted SIP is 

consistent with the requirement that the 

2018 milestone does indeed continue as 

an emission cap for SO2 unless the 

milestones are replaced by a different 

program approved by EPA as meeting 

the BART and reasonable progress 

requirements under 51.308. Future 

visibility impairment is prevented by 

capping emissions growth from those 

sources not eligible under the BART 

requirements, BART sources, and from 

entirely new sources in the region. The 

benefits of a milestone are therefore 

functionally distinct from the control 

efficiency improvements that could be 

gained at a limited number of BART 

subject sources. While BART-subject 

sources may not be operating at 85% 

capacity today, we believe the WRAP’s 

use of the capacity assumption in 

consideration of projected future energy 

demands in 2018 was reasonable for 

purposes of the submitted 

demonstration. While BART requires 

BART subject sources to operate SO2

controls efficiently, this does not mean 

that an alternative to BART thereby 

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Federal Register / Vol. 77, No. 241 / Friday, December 14, 2012 / Rules and Regulations 74361 

3This particular comment was not submitted in 

response to the proposal to approve Albuquerque’s 

309 trading program, the earliest published 

proposal. It was consistently submitted in the 

comment periods for the proposals to approve the 

309 trading programs for NM, WY and UT, which 

were later in time. 

allows, encourages, or causes sources to 

operate their controls less efficiently. 

On the contrary, we find that the SIP, 

consistent with the well-considered 309 

program requirements, functions to the 

contrary. Sources will be operating their 

controls in consideration of the 

milestone and they also remain subject 

to any other existing or future 

requirements for operation of SO2

controls. 

We also disagree with the 

commenter’s contention that existing 

programs are equivalent in effect to the 

emissions cap. EPA’s new source review 

programs are designed to permit, not 

cap, source growth, so long as the 

national ambient air quality standards 

and other requirements can be achieved. 

Moreover, we have not argued that 

BART does not apply at all times or that 

emission reductions under the cap are 

meant to function as emission 

limitations that are made to meet the 

definition of BART (40 CFR 51.301). 

The better-than-BART demonstration is 

not, as the comment would have it, 

based on issues of compliance averaging 

or how a BART limit operates in 

practice at an individual facility. 

Instead, it is based on whether the 

submitted SIP follows the regulatory 

requirements for the demonstration and 

evidences comparatively superior 

visibility improvements for the Class I 

areas it is designed to address. 

Comment: The submitted 309 SIP will 

not achieve greater reasonable progress 

than would the requirement for BART 

on individual sources. The BART 

program ‘‘if adequately implemented’’ 

will promote greater reasonable 

progress, and EPA should require BART 

on all eligible air pollution sources in 

the state. EPA’s proposed approval of 

the 309 trading program is ‘‘particularly 

problematic’’ where the BART sources 

cause or contribute to impairment at 

Class I areas which are not on the 

Uniform Rate of Progress (URP) glidepath towards achieving natural 

conditions. EPA should require 

revisions to provide for greater SO2

reductions in the 309 program, or it 

should require BART reductions on all 

sources subject to BART for SO2. 

Response: We disagree with the issues 

discussed in this comment. As 

discussed in other response to 

comments, we have found that the 

state’s SIP submitted under the 309 

program will achieve greater reasonable 

progress than source-by-source BART. 

As the regulations housed within 

section 309 make clear, states have an 

opportunity to submit regional haze 

SIPs that provide an alternative to 

source-by-source BART requirements. 

Therefore, the commenter’s assertion 

that we should require BART on all 

eligible air pollution sources in the state 

is fundamentally misplaced. The 

commenter’s use of the URP as a test 

that should apparently be applied to the 

adequacy of the 309 trading program as 

a BART alternative is also misplaced, as 

there is no requirement in the regional 

haze rule to do so. 

Comment: The 309 trading program 

must be disapproved because it does not 

provide for ‘‘steady and continuing 

emissions reductions through 2018’’ as 

required by 40 CFR 51.309(d)(4)(ii). The 

program establishes its reductions 

through milestones that are set at threeyear intervals. It would be arbitrary and 

capricious to conclude these reductions 

are ‘‘steady’’ or ‘‘continuous.’’ 

Response: We disagree and find that 

the reductions required at each 

milestone demonstrate steady and 

continuing emissions reductions. The 

milestones do this by requiring regular 

decreases. These decreases occur in 

intervals ranging from one to three years 

and include administrative evaluation 

periods with the possibility of 

downward adjustments of the 

milestone, if warranted. The interval 

under which ‘‘steady and continuing 

emissions reductions through 2018’’ 

must occur is not defined in the regional 

haze rule. We find the milestone 

schedule and the remainder of the 

trading program submitted by Utah does 

in fact reasonably provide for ‘‘steady 

and continuing emissions reductions 

through 2018.’’ 

Comment: The WRAP attempts to 

justify the SO2 trading program because 

SO2 emissions have decreased in the 

three transport region states relying on 

the alternative program by 33% between 

1990–2000. The justification fails 

because the reductions were made prior 

to the regional haze rule. The reliance 

on reductions that predate the regional 

haze rule violates the requirement of 40 

CFR 51.308(e)(2)(iv) that BART 

alternatives provide emission 

reductions that are ‘‘surplus’’ to those 

resulting from programs implemented to 

meet other CAA requirements. 

Response: We did not focus on the 

WRAP’s discussion of early emission 

reductions in our proposal. However, 

we do not understand commenters 

claim or agree with this comment. The 

WRAP’s statements regarding past air 

quality improvements are not contrary 

to the requirement that reductions 

under a trading program be surplus. 

Instead, the WRAP was noting that 

forward-planning sources had already 

pursued emission reductions that could 

be partially credited to the design of the 

309 SIP. We note that the most recent 

emission report for the year 2010 shows 

a 35% reduction in emissions from 

2003. Sources that make early 

reductions prior to the program trigger 

year may acquire extra allocations 

should the program be triggered. This is 

an additional characteristic feature of 

the backstop trading program that 

suggests benefits that would be realized 

even without triggering of the program 

itself. The surplus emission reduction 

requirement for the trading program is 

not an issue, because the existence of 

surplus reductions is studied against 

other reductions that are realized ‘‘as of 

baseline date of the SIP.’’ The 1990– 

2000 period plainly falls earlier than the 

baseline date of the SIP, so we disagree 

that the WRAP’s discussion of that 

period was problematic or violates 40 

CFR 51.308(e)(2)(iv), regarding surplus 

reductions. 

Comment: EPA must correct 

discrepancies between the data 

presented in the 309 SIPs.3 There are 

discrepancies in what has been 

presented as the results of WRAP 

photochemical modeling. The New 

Mexico regional haze SIP proposal 

shows, for example, that the 20% worst 

days at Grand Canyon National Park 

have visibility impairment of 11.1 

deciviews, while the other proposals 

show 11.3 deciviews. The discrepancy 

appears to be due to the submittals 

being based on different modeling 

scenarios developed by the WRAP. EPA 

must explain and correct the 

discrepancies and ‘‘re-notice’’ a new 

proposed rule containing the correct 

information. 

Response: We agree that there are 

discrepancies in the numbers in Table 1 

of the notices. The third column of the 

table below shows the modeling results 

presented in Table 1 of the 

Albuquerque, Wyoming and Utah 

proposals. The modeling results in the 

New Mexico proposal Table 1 are 

shown in the fourth column. The 

discrepancies come from New Mexico 

using different preliminary reasonable 

progress cases developed by the WRAP. 

The Wyoming, Utah and Albuquerque 

proposed notices incorrectly identify 

the Preliminary Reasonable Progress 

(PRP) case as the PRP18b emission 

inventory instead of correctly 

identifying the presented data as 

modeled visibility based on the 

‘‘PRP18a’’ emission inventory. The 

PRP18a emission inventory is a 

predicted 2018 emission inventory with 

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4See letter dated October 20, 2011 from Stephen 

Tuber, Assistant Regional Administrator, EPA 

Region 8, to Cathy Woollums, MidAmerican Energy 

Holdings Company included in the docket. 

all known and expected controls as of 

March 2007. The preliminary reasonable 

progress case (‘‘PRP18b’’) used by New 

Mexico is the more updated version 

produced by the WRAP with all known 

and expected controls as of March 2009. 

Thus, we are correcting Table 1, column 

5 in the Wyoming, Utah and 

Albuquerque of our proposed notices to 

include model results from the PRP18b 

emission inventory, consistent with the 

New Mexico proposed notice and the 

fourth column in the table below. We 

are also correcting the description of the 

Preliminary Reasonable Progress Case 

(referred to as the PRP18b emission 

inventory and modeled projections) to 

reflect that this emission inventory 

includes all controls ‘‘on the books’’ as 

of March 2009. 

Class I area State 

2018 Preliminary 

reasonable 

progress PRP18a 

case 

(deciview) 

2018 Preliminary 

reasonable 

progress PRP18b 

case 

(deciview) 

Grand Canyon National Park ........................................................................................................ AZ 11.3 11.1 

Mount Baldy Wilderness ............................................................................................................... AZ 11.4 11.5 

Petrified Forest National Park ....................................................................................................... AZ 12.9 12.8 

Sycamore Canyon Wilderness ..................................................................................................... AZ 15.1 15.0 

Black Canyon of the Gunnison National Park Wilderness ........................................................... CO 9.9 9.8 

Flat Tops Wilderness .................................................................................................................... CO 9.0 9.0 

Maroon Bells Wilderness .............................................................................................................. CO 9.0 9.0 

Mesa Verde National Park ............................................................................................................ CO 12.6 12.5 

Weminuche Wilderness ................................................................................................................ CO 9.9 9.8 

West Elk Wilderness ..................................................................................................................... CO 9.0 9.0 

San Pedro Parks Wilderness ........................................................................................................ NM 9.8 9.8 

Arches National Park .................................................................................................................... UT 10.9 10.7 

Bryce Canyon National Park ........................................................................................................ UT 11.2 11.1 

Canyonlands National Park .......................................................................................................... UT 10.9 10.7 

Capitol Reef National Park ........................................................................................................... UT 10.5 10.4 

Zion National Park ........................................................................................................................ UT 13.0 12.8 

We are not re-noticing our proposed 

rulemaking as the discrepancies do not 

change our proposed conclusion that 

the SIP submitted by Utah contains 

reasonable projections of the visibility 

improvements expected at the 16 Class 

I areas at issue. The PRP18a modeling 

results show projected visibility 

improvement for the 20 percent worst 

days from the baseline period to 2018. 

The PRP18b modeling results show 

either the same or additional visibility 

improvement on the 20 percent worst 

days beyond the PRP18a modeling 

results. We also note there are two 

discrepancies in New Mexico’s Table 1, 

column four compared to the other 

participating States’ notices. The 2018 

base case visibility projection in the 

New Mexico proposed notice for Black 

Canyon of the Gunnison National Park 

Wilderness and Weminuche Wilderness 

should be corrected to read 10.1 

deciview rather than 10.0. 

Notwithstanding the discrepancies 

described above, we believe that Utah’s 

SIP adequately project the improvement 

in visibility for purposes of Section 309. 

B. Legal Issues 

Comment: EPA informally announced 

in the section 114 request letter that it 

had already decided, before publishing 

the partial disapproval, to reject certain 

parts of the Utah regional haze SIP.4

EPA also concluded, before publishing 

the partial disapproval that Utah had 

improperly failed to submit a five-factor 

BART analysis for the PacifiCorp units 

as part of the Utah SIP. PacifiCorp 

believes that EPA’s actions have 

prejudiced the process for properly 

considering the issues that EPA raised 

in the partial disapproval. 

Response: We disagree with this 

comment. Contrary to commenter’s 

assertions, EPA’s October 20, 2011 letter 

to PacifiCorp ‘‘noted that the SIP did not 

contain analyses for the sources 

determined by the state to be subject-toBART’’. Therefore, the letter did not 

contain EPA conclusions, we requested 

the information from PacifiCorp, as 

explained in the letter relying on our 

authority under section 114(a) of the 

CAA to assist in ‘‘the development of, 

or in reviewing, a regional haze SIP,’’ in 

developing a Federal Implementation 

Plan (FIP), or ‘‘in carrying out the other 

responsibilities or actions under the 

CAA’’. 

1. EPA Authority 

Comment: We received comments 

that courts have consistently held that 

states are primarily responsible for SIP 

development and that EPA’s role is 

ministerial. One commenter went on to 

point out that recently, the Fifth Circuit 

Court of Appeals described the federal 

and state roles: ‘‘The [Clean Air] Act 

assigns responsibility to the EPA for 

identifying air pollutants and 

establishing National Ambient Air 

Quality Standards (NAAQS). 42 U.S.C. 

7408–7409. The states, by contrast, bear 

the primary responsibility for 

implementing those standards * * *. 

To implement the NAAQS, the states 

must adopt and administer State 

Implementation Plans (SIPs) that meet 

certain statutory criteria. § 7410. The 

states have wide discretion in 

formulating their plans.’’ Luminant 

Generation Co. v. EPA, 675 F.3d 917, 

921 (5th Cir. 2012) (citations and 

quotations omitted); see also Train v. 

Natural Resources Defense Council, 421 

U.S. 60, 78 (‘‘Congress intended the 

States to retain [a] significant degree of 

control over the manner in which they 

attain and maintain national 

standards.’’) 

Commenters asserted that EPA’s 

partial disapproval fails to account for 

the significant discretion granted to 

Utah under the CAA. Commenters 

pointed out that based on the language 

in the CAA, the RHR, EPA’s own 

guidance, and case law; the states have 

significant discretion when creating 

their regional haze SIPs, and EPA failed 

to properly account for that discretion 

in analyzing the Utah regional haze SIP. 

Response: Congress crafted the CAA 

to provide for states to 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 

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Federal Register / Vol. 77, No. 241 / Friday, December 14, 2012 / Rules and Regulations 74363 

the CAA. EPA has the authority to 

disapprove a SIP if it doesn’t meet with 

minimum requirements. Our action 

today is consistent with the statute. 

Our action does not contradict the 

Supreme Court’s decision in Train. 

States have significant responsibilities 

in implementation of the CAA and 

meeting the requirements of the RHR. 

We recognize that states have the 

primary responsibility of drafting an 

implementation plan to address the 

requirements of the CAA Visibility 

Program. We also recognize that we 

have the responsibility of ensuring that 

the state plans, including RH SIPs, 

conform to the CAA requirements. We 

cannot approve a RH SIP that fails to 

address the BART requirements. 

Our action in large part approves the 

RH SIP submitted by Utah. The 

disapproval is not intended to encroach 

on state authority. This action is only 

intended to ensure that CAA 

requirements are satisfied using our 

authority under the CAA. 

2. Presumptive Limits 

Comment: We received numerous 

comments that EPA’s proposed 

disapproval of Utah’s BART 

determinations and ‘‘EPA’s RH FIP’’ is 

improper because the BART units are 

meeting the presumptive limits in the 

BART guidelines based on the 

installation of combustion controls. 

Commenters went to assert that the 

BART Guidelines only require the 

installation of low NOX burners (LNBs) 

with overfire air (OFA) and that EPA 

determined in the guidelines that SCR 

was generally not cost-effective for 

BART. One commenter noted that EPA 

has completely ignored the presumptive 

BART limits in our proposed action and 

that this is contrary to the express 

requirements in both the RHR and the 

BART Rule. The commenter goes on to 

say that EPA’s attempt to completely 

ignore the presumptive BART limits 

makes the presumptive BART limits 

meaningless and this is contrary to the 

requirements of the CAA and the clear 

intent of the BART Rule. Commenters 

asserted that the BART rule on its face, 

shows that an alternative analysis is 

required only when a source cannot 

meet the presumptive limits, and that 

while a state may choose to establish a 

limit that is more stringent than the 

BART limit, there is nothing in the 

BART rule that would require a state to 

do so. 

Commenters asserted that EPA 

adopted the presumptive BART limits to 

establish the specific control levels 

required for EGUs. Commenters point 

out that EPA has not repealed the 

presumptive limits from the 

promulgated BART rule, but in this 

action EPA does not acknowledge the 

existence of the presumptive limits, as 

if the presumptive BART limits were no 

longer a binding regulation. Instead, 

commenters pointed out that EPA 

focused on the five-factor analysis and 

ignores the presumptive limits. 

Commenters argued that unless and 

until EPA goes through notice and 

comment rulemaking to remove the 

presumptive emissions limits and 

establish other requirements consistent 

with the CAA, then EPA must approve 

a state’s BART determination that meets 

the presumptive regulatory limits. 

One commenter went on to say that as 

the Utah 2008 regional haze SIP 

explains, ‘‘[t]he technical analysis 

conducted by EPA to determine 

presumptive BART limits for SO2 and 

NOX is in effect a BART determination 

analysis for 419 EGUs including Hunter 

Units 1 and 2 and Huntington Units 1 

and 2.’’ The commenter asserted that 

Utah then followed what EPA had done 

in developing Appendix Y and thus did 

a five-factor analysis. Because EPA 

found presumptive BART controls for 

PacifiCorp’s Units to be ‘‘cost effective’’ 

and to provide a ‘‘substantial degree of 

visibility improvement,’’ the commenter 

stated it is evident that two key 

elements of the five-factor test are met. 

Response: We disagree with the 

commenters. First, for each source 

subject to BART, the RHR, at 40 CFR 

51.308(e)(1)(ii)(A), requires that states 

identify the level of control representing 

BART after considering the factors set 

out in CAA section 169A(g), as follows: 

‘‘States must identify the best system of 

continuous emission control technology 

for each source subject to BART taking 

into account the technology available, 

the costs of compliance, the energy and 

non-air quality environmental impacts 

of compliance, any pollution control 

equipment in use at the source, the 

remaining useful life of the source, and 

the degree of visibility improvement 

that may be expected from available 

control technology.’’ 70 FR 39158. In 

other words, the presumptive BART 

limits do not obviate the need to 

identify the best system of continuous 

emission control technology on a caseby-case basis considering the five 

factors. A state may not simply ‘‘stop’’ 

its evaluation of potential control levels 

at a slightly lower limit than the 

presumptive level of control if more 

stringent control technologies or limits 

are technically feasible. We do not read 

the BART guidelines in appendix Y to 

contradict the requirement in our 

regulations to determine ‘‘the degree of 

reduction achievable through the 

application of the best system of 

continuous emission reduction’’ ‘‘on a 

case-by-case basis,’’ considering the five 

factors. 40 CFR 51.301 (definition of 

Best Available Retrofit Technology); 40 

CFR 51.308(e). 

Also, our position is supported by the 

following language in our BART 

guidelines: ‘‘While these levels may 

represent current control capabilities, 

we expect that scrubber technology will 

continue to improve and control costs 

continue to decline. You should be sure 

to consider the level of control that is 

currently best achievable at the time 

that you are conducting your BART 

analysis.’’ 70 FR 39171. 

While the presumptive limits are 

meaningful as indicating a level of 

control that EPA generally considered 

achievable and cost effective at the time 

it adopted the BART guidelines in 2005, 

mere consideration of the presumptive 

limits does not eliminate the state’s 

obligation to consider each of the five 

statutory factors in section 169A. As we 

wrote in our proposal, ‘‘[t]he 

presumptive limits accordingly are the 

starting point in a BART determination 

* * * unless the state determines that 

the general assumptions underlying 

EPA’s analysis are not applicable in a 

particular case.’’ 77 FR 28841. Nothing 

in the State’s record supports such a 

conclusion. Finally, our proposed notice 

did not contain a FIP. 

3. Compliance With the Requirements of 

40 CFR 51.308 

Comment: In its proposed partial 

disapproval, EPA stated that ‘‘neither 

the State nor PacifiCorp have completed 

a BART analysis that considers the 

statutory factors under 40 CFR 

51.308(e)(1)(ii)(A),’’ and that the 

requirement to conduct this analysis ‘‘is 

found in section 51.308(e)(1)(ii)(A) of 

the RHR,’’ However, as set forth below, 

EPA’s reliance upon section 51.308 is 

misplaced. 

EPA’s RHR provides two regulatory 

paths to address regional haze. By 

meeting the requirements under 40 CFR 

51.309, states are making reasonable 

progress toward the national goal of 

achieving natural visibility conditions 

for the 16 Class I areas on the Colorado 

Plateau. Utah submitted its regional 

haze SIP under section 51.309. 

Therefore, the requirements of section 

51.308 only apply to the extent required 

by section 51.309. 

Importantly, PM and NOX emissions 

and controls under section 51.309 are 

treated differently than PM and NOX

emissions and controls under section 

51.308, primarily because these 

emissions have a significantly smaller 

impact on visibility on the Colorado 

Plateau. WRAP has estimated ‘‘that 

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5The four units are PacifiCorp Hunter Units 1 

and 2 and Huntington Units 1 and 2. 

stationary source emissions of PM 

probably cause less than 2 percent of the 

region’s visibility impairment, whereas 

stationary source NOX emissions result 

in nitrates that probably cause about 2 

to 5 percent of the impairment on the 

Colorado Plateau.’’ See ‘‘Stationary 

Source NOX and PM Emissions in the 

WRAP Region: An Initial Assessment of 

Emissions, Controls, and Air Quality 

Impacts,’’ October 1, 2003, at 1_3.13. 

Several illustrations in the WRAP NOX

report show that nitrate emissions have 

very little impact on Class I areas in or 

near Utah and Wyoming. The WRAP 

report also explains that ‘‘controls on 

point source emissions of NOX and PM 

will have a relatively limited effect on 

visibility in much of the West, all else 

being equal.’’ 

Section 51.309 understandably is 

intended to focus on SO2 due to the 

greater visibility impact. Indeed, the 

GCVTC and WRAP focused their efforts 

primarily on sulfur dioxide emissions 

because the research indicated this 

pollutant had the greatest impact on 

visibility. The partial disapproval 

acknowledges that Utah has complied 

with the Section 51.309’s SO2

requirements and made great progress 

towards improving and protecting 

visibility as a result. For all of these 

reasons, section 51.309 takes a different 

approach to PM and NOX emissions 

than does section 51.308, placing much 

less emphasis on the need for significant 

reductions in PM and NOX emissions 

and instead focusing almost all attention 

and resources in the western U.S. on 

reducing SO2 emissions. 

As a result of the lesser emphasis in 

section 51.309 on PM and NOX

emissions, section 51.309(d)(4)(vii) 

states that a regional haze SIP ‘‘must 

contain any necessary long-term 

strategies and BART requirements for 

stationary source PM and NOX

emissions.’’ Section 51.308, by contrast, 

does not contain a similar ‘‘necessary’’ 

threshold for BART. In other words, if 

a BART requirement is not ‘‘necessary’’ 

for a section 51.309 state, such as Utah, 

to make ‘‘reasonable progress,’’ then it is 

not required as part of the regional haze 

SIP. EPA’s partial disapproval fails to 

acknowledge the importance of the 

’’necessary’’ threshold in its own rules, 

and fails to identify how Utah’s BART 

determinations do not meet this 

‘‘necessary’’ threshold. 

Response: We disagree with the 

comment. As explained in our proposed 

rulemaking for Section 51.309(d)(4)(viii) 

we explained that the provision ‘‘is 

intended to clarify that if EPA 

determines that the SO2 emission 

reductions milestones and backstop 

trading program submitted in the 

Section 51.309 SIP makes greater 

reasonable progress than BART for SO2, 

this will not constitute a determination 

that BART for PM or NOX is satisfied for 

any sources which would otherwise be 

subject to BART for those pollutants’’ 

(emphasis added). 70 FR 44169 (Aug. 1, 

2005). EPA does not interpret this 

statement to mean that there are 

different BART requirements for Section 

308 and 308 RH SIPs. EPA’s proposed 

rulemaking made no finding that BART 

determinations conducted for a state 

submitting a RH SIP under Section 

51.309 should be conducted any 

differently than a state submitting a RH 

FIP under only Section 308. The use of 

the word ‘‘necessary’’ in Section 

51.309(d)(4)(viii) was to explain that 

some states may have BART NOx 

emission limitations, while others may 

not. As already explained elsewhere in 

our proposal on the Utah SIP and our 

response to other comments, Utah did 

not conduct a proper evaluation of the 

five statutory factors, as required by 40 

CFR 51.308(e)(1)(ii)(A) and section 

169A(g) of the CAA. 

EPA also disagrees with commenter’s 

assertion that a BART submission is 

discretionary. 30 CFR 51.309(d)(4)(viii) 

is clear in that the implementation plan 

‘‘must’’ contain BART requirements. 

The proposed regional haze rulemaking 

explained that the provision that 

provides that ‘‘[a]ny such BART 

provisions may be submitted pursuant 

to either § 51.308(e)(1) or 51.308(e)(2),’’ 

was included to ‘‘allow States the 

flexibility to address these BART 

provisions either on a source-by-source 

basis under Section 51.308(e)(1), or 

through an alternative strategy under 

Section 51.308(e)(2).’’ 70 FR 44169 

(August 1, 2005). 

Moreover, EPA’s proposed regional 

haze rule made clear that ‘‘[i]n limited 

circumstances, it may be possible for a 

State to demonstrate that an alternative 

program which controls only emissions 

from SO2 could achieve greater visibility 

improvement than application of 

source-specific BART controls on 

emissions of SO2, NOX and/or PM. We 

nevertheless believe that such a 

showing will be quite difficult to make 

in most geographic areas, given that 

controls on SO2 emissions alone in most 

cases will result in increased formation 

of ammonium nitrate particles.’’ 70 FR 

44169 (Aug. 1, 2005). Utah’s RH SIP 

does not include a demonstration that 

the backstop SO2 trading program under 

Section 51.309 achieves greater 

visibility improvement than application 

of source-specific PM BART controls. 

Therefore, Utah’s Section 51.309 SIP 

does not provide the adequate level of 

visibility improvement to meet the 

BART requirements. 

Comment: Utah was not required to 

comply with subsection 

51.308(e)(1)(ii)(A) because it had 

complied with subsection 

51.308(e)(l)(ii)(B). Subsection 

51.308(e)(1) provides, ‘‘To address the 

requirements for BART, the State must 

submit an implementation plan 

containing the following plan elements 

and include documentation for all 

required analyses.’’ One of these 

elements is a ‘‘determination of BART 

for each BART-eligible source,’’ which 

may be ‘‘based on an analysis’’ of the 

five-factor test, § 51.308(e)(1)(ii)(A), or, 

in the case of ‘‘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,’’ 

§ 51.308(e)(l)(ii)(B). Because Utah’s 

regional haze SIP properly relied on 

Appendix Y, and thus satisfied 

subsection (B), it was incorrect for EPA 

to reject Utah’s analysis as not 

complying with subsection (A). 

Response: We disagree with this 

comment. The State must comply at all 

times with the requirements of 40 CFR 

51.308(e)(1)(ii)(A). In addition, the State 

must comply with the requirements of 

40 CFR 51.308(e)(1)(ii)(B) for sources 

that are greater than 750 MW. As we 

have stated in our proposed notice and 

elsewhere in our response to comments, 

the State did not perform an analysis 

pursuant to the five factors required by 

the RHR and BART Guidelines, thus the 

State’s SIP does not meet the 

requirements of 40 CFR 

51.308(e)(1)(ii)(A) or 40 CFR 

51.308(e)(1)(ii)(B). 

4. Utah’s Permitting Process 

Comment: EPA is overlooking how 

Utah’s permitting program supports the 

decisions it made in Utah’s regional 

haze SIP. In this instance, EPA’s 

comment disregards the review that 

Utah completed through its new source 

review (NSR) program. That review 

established the emission limits and 

monitoring, recordkeeping, and 

reporting (MRR) requirements for NOX

and PM. 

The notice of intent (NOI) for the 

pollution control project at Huntington 

Unit 2 was submitted in October 2004 

and the approval order (AO) was issued 

in 2005. Because all four BART eligible 

units are essentially identical,5 this AO 

established the requirements that were 

used for all four units. The NOI for the 

pollution control projects at Hunter 

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Federal Register / Vol. 77, No. 241 / Friday, December 14, 2012 / Rules and Regulations 74365 

Units 1 and 2 was submitted in June 

2006 and the AO was issued in April, 

2008. The NOI for the pollution control 

project at Huntington Unit 1 was 

submitted in April 2008 and the AO 

issued in August 2009. 

When BART was evaluated for NOX

in the 2008 SIP, Utah relied on the 

technical review that had been 

completed through the NSR program to 

justify the emission limits and MRR 

requirements in the AO. These limits 

were then evaluated to determine 

whether the existing controls satisfied 

the requirement for BART. Utah, in its 

regional haze SIP, determined that the 

existing controls met the BART 

requirement, and therefore no 

additional controls were required. It is 

a complete misrepresentation of the 

extensive process Utah undertook to say 

that the State determined the BART 

limit without any analysis. 

Response: We disagree with this 

comment. While Utah may have 

considered BART controls through its 

NSR permitting program, as we have 

pointed out in our proposed notice and 

in our responses above, the State did not 

perform the required five-factor BART 

analysis pursuant to 40 CFR 

51.308(e)(1). 

5. Enforceability of BART Emission 

Limits 

Comment: The applicable 

requirements in the AOs for the Hunter 

and Huntington plants have been 

incorporated into the operating permits 

for these plants under authority of 

R307–415. The operating permit 

program was designed to ensure that 

applicable requirements are clear and 

are enforceable. A source that violates 

one or more enforceable permit 

conditions is subject to an enforcement 

action including, but not limited to, 

penalties and corrective action. 

Enforcement actions may be initiated by 

the local permitting authority, EPA or, 

in many cases, through citizen suits. 

Utah’s operating permit rule requires 

detailed monitoring, reporting, and 

recordkeeping (MRR) (see R307–415– 

6a(3)) to ensure that all emission limits 

are practically enforceable. If MRR 

provisions are changed in the AO, the 

operating permit rules provide a 

backstop to ensure that appropriate 

MRR occurs for each emission limit. 

R307–415–8, Permit Review by EPA and 

Affected States, describes the process by 

which EPA may veto the operating 

permit: ‘‘If EPA objects to the issuance 

of a permit in writing within 45 days of 

receipt of the proposed permit and all 

necessary supporting information, then 

the Executive Secretary shall not issue 

the permit. If the Executive Secretary 

fails, within 90 days after the date of an 

objection by EPA, to revise and submit 

a proposed permit in response to the 

objection, EPA may issue or deny the 

permit in accordance with the 

requirements of the Federal program 

promulgated under Title V of the Act. 

R307–415–8(3).’’ 

In disapproving Utah’s regional haze 

SIP because ‘‘EPA does not consider 

operating permit conditions adequate to 

meet the MRR and enforceability 

requirement’’, EPA is thwarting the 

purpose of the Title V program, as 

enacted under the 1990 Amendments to 

the CAA. Taking EPA’s position would 

require a SIP revision when an 

individual source desires to make a 

change to its AO and Title V permit. 

The drafters of the 1990 Amendments 

thought otherwise: ‘‘The concept behind 

this new [Title V] permit program is to 

minimize, if not eliminate, the degree to 

which decisions relating to individual 

major sources require SIP actions. 

Individual source issues should be 

resolved in the permit process, 

consistent with the SIP. EPA must avoid 

duplication between the SIP and permit 

processes.’’ Utah’s rule is consistent 

with the purpose of Title V as enacted 

in the 1990 Amendments to the CAA 

and with Part 70 rules adopted there 

under. Moreover, if there are inadequate 

monitoring requirements in a source’s 

Title V permit, the State, consistent with 

40 CFR 70.6(c)(1), may supplement 

those requirements to rectify the 

inadequacy. Sierra Club v. EPA, 536 

F.3d 675, 680 (D.C. Cir. 2008). 

EPA is attempting to do through its 

partial disapproval of Utah’s SIP what 

the D.C. Court of Appeals struck down 

in Sierra Club. After reversing course 

numerous times, in 2006 EPA adopted 

Part 70 rules prohibiting state and local 

authorities from supplementing 

inadequate monitoring requirements; 

instead EPA proposed to remedy such 

inadequacies by undertaking a 

‘‘programmatic’’ strategy. See 71 FR 

75422 (Dec. 15, 2006). At the same time 

as EPA announced its prohibition, it 

failed to correct monitoring deficiencies 

in Title V permits through a 

programmatic fix, which resulted in 

thousands of Title V permits containing 

inadequate monitoring requirements. In 

Sierra Club, the Court held ‘‘if Congress 

meant that potentially thousands of 

permits could be issued without 

adequate monitoring requirements then 

it would not have said ‘each permit 

shall set forth monitoring requirements 

to assure compliance with the permit 

terms and conditions.’’ Sierra Club, 535 

F.3d at 678 (citing 42 U.S.C. 7661c(c). 

The Court concluded that permitting 

authorities may supplement inadequate 

monitoring requirements. Id. 

EPA has ample means of federally 

enforcing whether the four EGUs in 

Utah either now or in the future abide 

by adequate MMR requirements through 

EPA’s Title V authority and through 

Utah’s other air permitting program. 

EPA should not resort to imposing 

draconian requirements on the State’s 

SIP program and making the State’s 

permit program practically unworkable 

by insisting that MRR requirements be 

contained in the regional haze SIP. 

Response: EPA disagrees with this 

comment. EPA’s approach in this action 

is entirely consistent with section 

169A(b)(2) which, as we wrote when we 

promulgated the BART Guidelines, 

‘‘provides that EPA must require SIPs to 

contain emission limits, schedules of 

compliance, and other measures as may 

be necessary to make reasonable 

progress towards meeting the goal’’ 

(emphasis added). 70 FR 39120 (July 6, 

2005). The regulations require that the 

states ‘‘must submit an implementation 

plan containing emission limitations 

representing BART.’’ 40 CFR 51.308(e). 

The Guidelines require that states ‘‘must 

establish an enforceable emission limit 

for each subject emission unit at the 

source and for each pollutant subject to 

review that is emitted from the source.’’ 

70 FR 39172 (July 6, 2005). CAA section 

110(a)(2) also requires that SIPs shall 

‘‘include enforceable emission 

limitations.’’ 

Furthermore, Appendix V to 40 CFR 

part 51 sets forth the minimum criteria 

for determining whether a state 

implementation plan submitted for 

consideration by EPA is an official 

submission for purposes of review. The 

Appendix V criteria include ‘‘[e]vidence 

that the plan contains emission 

limitations, work practice standards and 

recordkeeping/reporting requirements, 

where necessary, to ensure emission 

levels’’ and ‘‘[c]ompliance/enforcement 

strategies, including how compliance 

will be determined in practice’’. 

Appendix V, Sections 2.2(g) and (h). 

Therefore, EPA disagrees that the use of 

title V permits to implement the MRR 

necessary to ensure compliance with 

BART emission limitations is adequate 

under the Clean Air Act. 

While the commenter suggests the 

title V permit program replaces SIP 

requirements, this simply is not the 

case. In fact, the Congressional Report 

cited by the commenter is clear that 

while the title V permit program 

provides for ‘‘harmonization’’ of the 

Clean Air Act requirements, ‘‘title V 

does not change, and gives EPA no 

authority to modify, the substantive 

provisions of these other titles.’’ 

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74366 Federal Register / Vol. 77, No. 241 / Friday, December 14, 2012 / Rules and Regulations 

6 In comments from the State, the State 

recognized that the emission rates listed in the SIP 

for PM for all four BART units of 0.05 lb/MMBtu 

were incorrect. The correct limits are 0.015 lb/ 

MMBtu (30-day rolling average). 

CONFERENCE REPORT ON—CLEAN 

AIR ACT AMENDMENTS, 136 Cong. 

Rec. E3673–01, 1990 WL 206959. 

Finally, the Sierra Club case cited by 

the commenter in support of its 

contentions did not involve challenges 

to SIP monitoring requirements and 

therefore is not applicable here. The 

commenter’s claim that title V permits 

are adequate to meet SIP and regional 

haze statutory and regulatory 

requirements is unfounded and not 

supported by the case law cited or the 

CAA. 

Comment: Utah’s SIP and the permits 

that are issued under that plan are 

enforceable under state law and become 

federally enforceable when EPA 

approves the plan and incorporates it 

into 40 CFR part 52, Subpart TT. 

In addition to a federally enforceable 

SIP, AOs issued by the State are also 

federally enforceable. AOs become 

federally enforceable through R307–401 

Permits: New and Modified Sources, 

and R307–405 Permits: Major Sources in 

Attainment or Unclassified Areas (PSD), 

when those rules are approved by EPA 

as part of Utah’s SIP and codified in 40 

CFR 52.2320 and 40 CFR 52.2346. 

Region 8’s Web site recognizes the role 

that state permits play in the SIP 

process: ‘‘SIPs contain state air 

regulations that, for example, allow 

states to permit the construction and 

operation of stationary sources, 

establish specific requirements for 

categories of stationary sources, and 

identify open burning requirements.’’ 

AOs issued by the State under 

authority of R307–401 and R307–405 to 

the Hunter and Huntington plants, 

including provisions to make the 

pollution control projects enforceable, 

contain enforceable emission limits for 

NOX and PM, as well as MRR 

requirements to ensure that the 

emission limits are continuously met. 

EPA has discretion to federally enforce 

the provisions of these AOs under 

authority of the federally approved Utah 

SIP. There is no doubt that such AOs are 

federally enforceable, as evidenced by 

lawsuits brought previously by EPA 

against other sources in Utah. 

Commenters also explain that Utah’s 

NSR program for major and minor 

sources is part of the federally approved 

SIP. If PacifiCorp seeks to relax or 

modify the emission limitations in the 

AOs for the Hunter or Huntington plants 

at some point in the future, the 

company would be required to obtain a 

new AO and apply BACT under either 

Utah’s major source (R307–405) or 

minor source (R307–401) rules. A 

modification may potentially trigger 

other requirements. As has been evident 

throughout the federal CAA programs 

that EPA has delegated to Utah, there 

are substantial federally enforceable 

requirements in the broad air program 

in Utah to ensure that the emission 

reductions achieved through the 

pollution control projects are 

maintained (through state or federal 

enforcement if necessary) into the 

future. If the emission limits in the AO 

were revised in the future, EPA has the 

opportunity to review the changes and 

provide comments through the NSR 

process. EPA could then veto the 

operating permit in the unlikely 

circumstance that the emission limits 

for NOX or PM became less stringent. 

Commenters also suggest that EPA has 

proposed to disapprove the BART 

determination for NOX and PM in part 

because EPA believes that the emission 

limits and MRR requirements in the 

AOs and operating permits are not 

federally enforceable enough. It is not 

clear what additional enforcement 

action EPA would take due to a 

violation of a SIP condition versus a 

violation of a permit condition. 

Response: We disagree. See our 

response above. EPA does not have the 

option of approving a RH SIP where 

BART emission limits are implemented 

only through construction or operating 

permits. 

Comment: We received a comment 

that the BART emission limits must be 

included in the Utah SIP and be fully 

enforceable and that the commenter 

supported EPA’s disapproval of the 

Utah regional haze SIP because it ‘‘does 

not contain provisions necessary to 

make BART limits practically 

enforceable as required by section 

110(a)(2) of the CAA and Appendix V to 

part 51.’’ The commenter went on to say 

that the BART emission limits must be 

permanent, unalterable, and federally 

enforceable by both EPA and citizens. 

Response: As our proposed notice and 

responses above indicate, we agree with 

the commenter on the need for the 

BART emission limits to be included in 

the SIP along with appropriate MRR 

requirements. Although we are not 

approving any BART determinations in 

this action, when Utah submits revised 

BART determinations, the State must 

include provisions in the SIP to make 

the emission limits federally 

enforceable. 

C. Applicability of the BART Guidelines 

Comment: We received comments 

that EPA made a mistake when it said 

in its proposal that because the 

PacifiCorp units have a 430 MW 

generating capacity, the State is not 

required to follow the BART Guidelines 

in making BART determinations for the 

units. Commenters went on to say that 

applicability of the BART guidelines is 

determined by the total generating 

capacity of the fossil fuel fired electric 

generating plant, not the size of the 

individual units. Commenters went on 

to say that the total generating capacity 

of the two units subject to BART at each 

facility is 960 MW, and as such, the 

total generating capacity of the Hunter 

and Huntington power plants both 

exceed the 750 MW trigger for 

applicability of the BART guidelines. 

Response: We agree with this 

comment. EPA erred by stating that the 

State is not required to follow the BART 

Guidelines in making BART 

determinations for these units. Because 

of the generating capacity for the EGUs 

is above 750 MW, the State must follow 

the BART Guidelines when making its 

BART determinations. 70 FR 39158 

(July 6, 2005). 

D. PM BART 

Comment: We received numerous 

comments that Utah relied on the BART 

regulations when making its PM BART 

determinations for these Units. 

Commenters pointed out that EPA 

acknowledges in the proposed rule, 

‘‘[t]here are no presumptive limits 

established for PM.’’ With there being 

no presumptive limit for PM, 

commenters state that Utah undertook 

its own analysis and reasonably 

determined that the PM limit for the 

Hunter and Huntington Units is the 

current operating permit level of 0.015.6

Commenters asserted that because 

Utah determined that PM BART for the 

Hunter and Huntington units is the 

installation and operation of fabric filter 

baghouses, which is the most stringent 

PM control technology for EGUs, the 

State did not have to complete a 

comprehensive five-factor analysis. 

One commenter asserted that EPA’s 

position is in derogation of Executive 

Order 13563. In January 2011, President 

Obama signed Executive Order 13563— 

Improving Regulation and Regulatory 

Review. The commenter went on to say 

that the President described the goals of 

this order in an op-ed article published 

in the Wall Street Journal: ‘‘This order 

requires that federal agencies ensure 

that regulations protect our safety, 

health and environment while 

promoting economic growth * * *. 

Where necessary, we won’t shy away 

from addressing obvious gaps: new 

safety rules for infant formula; 

procedures to stop preventable 

infections in hospitals; efforts to target 

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Federal Register / Vol. 77, No. 241 / Friday, December 14, 2012 / Rules and Regulations 74367 

chronic violators of workplace safety 

laws. But we are also making it our 

mission to root out regulations that 

conflict, that are not worth the cost, or 

that are just plain dumb * * *. We’re 

also getting rid of absurd and 

unnecessary paperwork requirements 

that waste time and money. We’re 

looking at the system as a whole to 

make sure we avoid excessive, 

inconsistent and redundant regulation.’’ 

The commenter concluded that EPA 

should recognize that any further 

analysis of PM is ‘‘absurd and 

unnecessary paperwork’’ that is 

irrational, as well as a waste of time and 

money. 

Response: The BART Guidelines state 

‘‘[i]f you find that a BART source has 

controls already in place which are the 

most stringent controls available (note 

that this means that all possible 

improvements to any control devices 

have been made), then it is not 

necessary to comprehensively complete 

each following step of the BART 

analysis in this section. As long as these 

most stringent controls available are 

made federally enforceable for the 

purpose of implementing BART for that 

source, you may skip the remaining 

analyses in this section, including the 

visibility analysis in step 5. Likewise, if 

a source commits to a BART 

determination that consists of the most 

stringent controls available, then there 

is no need to complete the remaining 

analyses in this section.’’ 70 FR 39165 

(July 6, 2005). While we agree that 

baghouses may well be the most 

stringent control equipment for 

controlling PM emissions, the State has 

not provided a demonstration that the 

BART PM emission limits at the Utah 

BART sources represent the most 

stringent controls. Thus, it may be 

possible for the State to provide an 

abbreviated BART determination for PM 

if it can demonstrate that the emission 

limits represent the most stringent level 

of control. 

E. General Comments on BART 

Comment: EPA is aware that the State 

of Utah, in cooperation with PacifiCorp, 

currently is conducting another fivefactor BART analysis for the Units 

identified in EPA’s section 114 request 

dated October 20, 2011 (see footnote 4). 

Until that BART analysis is completed 

and the results are incorporated into the 

Utah regional haze SIP, there is no 

reason for EPA to continue processing 

the partial disapproval. Therefore, EPA 

should ‘‘withdraw its FIP’’. 

In that way, EPA can focus its 

resources on the upcoming Utah 

regional haze SIP version that Utah has 

committed will contain the BART 

analysis information EPA has requested 

be included. Until then, continuing the 

administrative review process for the 

partial disapproval is a waste of 

taxpayer funds and other resources. 

Response: We disagree with this 

comment. We are under a consent 

decree with Wild Earth Guardians to 

take final action on the Utah regional 

haze SIP by October 31, 2012. Under the 

consent decree, we must either approve 

or disapprove all the State’s regional 

haze SIP. The consent decree does not 

allow us to delay action in determining 

whether the SIP meets the requirements 

of the RHR. Furthermore, we had a 

statutory obligation to act on SIPs 

within 12 months after they have been 

determined to be or deemed complete, 

and that date has passed. Moreover, 

Utah will not be submitting the 

additional information referenced above 

until after October 31, 2012, thus EPA 

is forced to take action on the SIP in its 

entirety. Finally, contrary to 

commenter’s assertion, our proposed 

notice did not contain a FIP. 

F. Reasonable Progress 

Comment: We received comments 

that the Utah SIP fails to comply with 

40 CFR 51.309(g) or 40 CFR 

51.308(d)(1)–(4), which require that SIPs 

address impacts to Class I areas not 

located on the Colorado plateau. 

Commenters went on to point out that 

sources in Utah have been shown to 

impact Class I areas outside of the 

Colorado Plateau. 

Commenters pointed out that under 

both 40 CFR 51.309(g) and 40 CFR 

51.308(d)(1)–(4), a long-term strategy 

must include such emission limits, 

schedules of compliance and other 

measures as may be necessary to 

achieve reasonable progress goals, and 

that for Class I areas outside a state’s 

borders, the State has an obligation to 

adopt controls necessary to ensure it 

achieves its share of the pollution 

reductions that are required to meet the 

reasonable progress goals set for the 

subject Class I area. Since the 

requirements of 40 CFR 51.308(d)(1)–(4) 

apply to Utah, commenters assert that 

EPA must require Utah to develop a 

long-term strategy under 40 CFR 

51.308(d)(3). 

Response: We do not agree with this 

comment. States adopting the 

requirements of 40 CFR 51.309 are 

deemed to have met the requirements 

for reasonable progress for the Class I 

areas on the Colorado Plateau. 40 CFR 

51.309(a). For such states, the 

requirements of 40 CFR 51.308(d)(1) and 

(d)(2) only apply to Class I areas within 

their state not on the Colorado Plateau. 

See 40 CFR 51.309(g)(2); 40 CFR 

51.308(d)(1), (2). All of the Class I areas 

in Utah are on the Colorado Plateau. 

Therefore, the State met all reasonable 

progress requirements for the Class I 

areas in Utah. 

With regard to Class I areas in other 

states, the State must satisfy the 

requirements of 40 CFR 51.308(d)(3). 

See 40 CFR 51.309(g)(2). In particular, 

40 CFR 51.308(d)(3)(ii) requires that if 

emissions from Utah sources cause or 

contribute to impairment in another 

state’s Class I area, Utah must 

demonstrate that it has included in its 

regional haze SIP all measures necessary 

to obtain its share of the emission 

reductions needed to meet the progress 

goal for that Class I area. Section 

51.308(d)(3)(ii) also requires that, since 

Utah participated in a regional planning 

process, it must ensure it has included 

all measures needed to achieve its 

apportionment of emission reduction 

obligations agreed upon through that 

process. As we state in the RHR, Utah’s 

commitments to participate in WRAP 

bind it to secure emission reductions 

agreed to as a result of that process. 

Under 40 CFR 51.308(d)(3)(iii), a state 

must document the technical basis on 

which the state is relying to determine 

its apportionment of emission reduction 

obligations necessary to achieve 

reasonable progress in each mandatory 

Class I area the state affects. States may 

rely on technical analyses developed by 

regional planning organizations and 

approved by all state participants. Utah 

analyzed the WRAP modeling and 

inventories and determined that 

emissions from the State do not 

significantly impact or will not 

significantly impact other states’ Class I 

areas. The State’s analysis is 

summarized below and included in 

Section XX.K of the SIP. Inventories 

developed by the WRAP show a 

significant decrease in stationary source 

NOX and SO2 emissions. The urban area 

in northern Utah that may impact Class 

I areas in Idaho, Nevada and Wyoming 

will have a significant reduction in NOX

emissions from mobile sources as 

described in Section XX.F of the State’s 

SIP. The State SIP shows that the 

contribution to nitrate on the 20% worst 

days from sources in Utah decreases 

substantially between 2002–2018 at 

Craters of the Moon in Idaho, Bridger 

and Fitzpatrick Wilderness Areas in 

Wyoming, and Jarbidge Wilderness Area 

in Nevada. The contribution to sulfates 

is not significant at any of the sites. 

As described in Section XX.D.6 of the 

State’s SIP plan, two BART-eligible 

plants in central Utah are projected to 

decrease SO2 emissions by 13,200 tons 

and NOX emissions by 6,200 tons 

between 2002 and 2018. The State also 

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74368 Federal Register / Vol. 77, No. 241 / Friday, December 14, 2012 / Rules and Regulations 

shows that in general the impact from 

sources in Utah is not significant at La 

Garita Wilderness Area and Great Sand 

Dunes National Monument in Colorado, 

Bandelier National Monument in New 

Mexico and Mazatal and Pine Mountain 

Wilderness Areas in Arizona. 

Utah accepted and incorporated the 

WRAP-developed visibility modeling 

into its regional haze SIP, and the 

State’s regional haze SIP includes the 

controls assumed in the modeling. Utah 

satisfied the RHR’s requirements and 

included controls in the SIP sufficient to 

address the relevant requirements of the 

RHR related to impacts on Class I areas 

in other states. 

Comment: We received a comment 

that Utah still must comply with 

reasonable progress requirements to 

address visibility impairment 

attributable to Utah sources of NOX and 

PM with respect to all affected Class I 

areas including the 16 Class I areas 

within the Colorado Plateau, and that 

Utah first must establish reasonable 

progress goals for all Utah Class I areas. 

Response: We do not agree with this 

comment. Pursuant to 40 CFR 51.309(a), 

if a state adopts the requirements under 

40 CFR 51.309 it will be deemed to 

comply with the requirements for 

reasonable progress with respect to the 

Colorado Plateau Class I areas through 

2018. As stated above, all of the Class 

I areas in Utah are on the Colorado 

Plateau, so Utah does not have to 

separately establish reasonable progress 

goals for them. As explained above, 

Utah has also met the requirements for 

Class I areas outside the state. 

Comment: We received a comment 

from the NPS that, under 40 CFR 

51.309(g), Utah should have developed 

a long-term strategy that evaluated NOX, 

PM, and SO2 controls on large nonBART stationary sources of emissions 

such as PacifiCorp Hunter Unit 3 to 

meet reasonable progress requirements 

with respect to non-Colorado Plateau 

Class I areas. In particular, the NPS 

cited our notice proposing action on the 

Utah regional haze SIP. The NPS also 

referenced modeling results to argue 

that NOX emissions from certain nonBART stationary sources cause or 

contribute to visibility impairment at 

both Capitol Reef NP and at certain 

Class I areas outside Utah and off the 

Colorado Plateau. The NPS states that 

emission controls should be considered 

for these sources in order to meet 

reasonable progress requirements. 

Response: We do not agree with these 

comments. As explained above, with 

respect to in-state Class I areas, our 

approval of the Utah SIP deems it as 

meeting reasonable progress 

requirements for the in-state Class I 

areas, as they are all on the Colorado 

Plateau. With respect to non-Colorado 

Plateau Class I areas, in this case 40 CFR 

51.309(g) does not impose any separate 

obligations on Utah to analyze or 

impose emissions controls on nonBART sources to demonstrate 

reasonable progress at such areas. 

Instead, at most, Utah must show that it 

has included all measures needed to 

achieve its apportionment of emission 

reduction obligations agreed upon 

through the WRAP process. See 40 CFR 

51.308(d)(3)(ii). As discussed above, 

Utah has met that requirement, and the 

commenter has not provided any 

information to the contrary. 

G. Clean Air Corridors (CACs) 

Comment: Approximately 75% of 

Utah is located in a CAC. Utah has a 

legal duty to protect that CAC from new 

sources of air pollution both inside and 

outside of CACs. Specifically, Utah 

must identify significant emissions 

growth that ‘‘could begin’’ to impair 

visibility within any CAC and include 

‘‘an analysis of the effects of increased 

emissions, including provisions for the 

identification of the need for additional 

emission reductions measures, and 

implementation of the additional 

measures where necessary.’’ 

Utah’s regional haze SIP fails to 

identify several new and proposed 

significant air pollution sources that 

‘‘could begin’’ to adversely impact 

visibility in the Utah CAC and nearby 

Class I areas. For example, the Alton 

coal mine in southern Utah is located 

within the CAC and may adversely 

impact visibility in the corridor and in 

nearby Class I areas, such as Zion 

National Park. The Alton coal mine will 

emit visibility-impairing emissions, 

including SO2, NOX and PM. In 

addition, the Viresco coal gasification 

facility has been proposed for the City 

of Kanab. The Viresco coal gasification 

plant will burn coal from the Alton coal 

mine. Kanab is very close to Zion 

National Park and is also located inside 

Utah’s CAC. A local citizen organization 

has requested that the State require an 

approval order regulating emissions 

from the Viresco coal plant. To date, the 

State has refused to regulate the Viresco 

coal gasification plant and failed to 

impose any air pollution limitations or 

controls on the plant. The EPA should 

require Utah to regulate the Viresco coal 

plant to limit emissions from the plant 

in order to protect CACs in Utah, as well 

as Class I areas. 

Finally, the Deseret Power Electric 

Cooperative has proposed to add an 

additional coal-fired electric generating 

unit to the Bonanza plant in northeast 

Utah. This plant would be located 

outside of Utah’s CAC, but has the 

potential to adversely impact visibility 

in the corridor and in neighboring Class 

I areas. 

EPA may not approve the Utah 

regional haze SIP until the State 

identifies all potential sources of 

pollution; assesses the impact of these 

sources on visibility in CACs; and 

imposes air pollution control equipment 

and emission limitations on such 

sources consistent with 40 CFR 

51.309(d)(3)(iii)–(iv). 

Response: We disagree with this 

comment. Utah relied on the WRAP’s 

Policy on Clean Air Corridors to 

determine if emissions within or outside 

of the CAC that could impair visibility 

within the CAC. The report concluded: 

‘‘[p]]ursuant to 40 CFR 51.309(d)(3)(ii), 

the WRAP has examined patterns of 

growth in the corridor and finds that 

they are not causing significant 

emission increases that could have or 

are having visibility impacts at one or 

more of the 16 Class I areas. Nor, at this 

time, are such emission increases 

expected during the first planning 

period (2003–2018). Analyses 

performed by the Grand Canyon 

Visibility Transport Commission found 

that an increase of 25% in weighted 

emissions would result in a 0.7 dv 

reduction in visibility, whereas the 

weighted emission increase expected by 

2018 is only 4%. Pursuant to 40 CFR 

51.309(d)(3)(iii), the WRAP has 

examined emissions growth in areas 

outside the corridor and finds that 

significant emissions growth is not 

occurring that could begin or is 

beginning to impair the quality of the air 

in the corridor and thereby lead to 

visibility degradation for the least 

impaired days in one or more of the 16 

Class I areas.’’ 

In addition, Utah is using a 

comprehensive emissions tracking 

system established by WRAP to track 

emissions within portions of Oregon, 

Idaho, Nevada and Utah that have been 

identified as part of the CAC. The 

emission tracking system ensures that 

visibility does not degrade on the leastimpaired days in any of the 16 Class I 

areas of the Colorado Plateau. If the 

emissions tracking system identifies 

emissions in or outside of the CAC that 

are causing visibility impairment, the 

State will be required to address these 

emissions in accordance with 40 CFR 

51.309(d)(3) in the periodic plan 

revisions that the State is required to 

submit in 2013 and 2018. Therefore, 

should any of the project emissions 

highlighted in the comment degrade 

visibility on the least-impaired days in 

any of the 16 Class I areas, the State will 

be required to address those impacts. 

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Federal Register / Vol. 77, No. 241 / Friday, December 14, 2012 / Rules and Regulations 74369 

H. General SIP Comments 

Comment: Utah’s technical arguments 

supporting a weak regional haze 

program should be rejected. The State 

has prepared a Powerpoint presentation 

arguing that its weak and illegal regional 

haze program should be approved by 

EPA. In support of Utah’s weak BART 

determinations the State argues: 1) that 

NOX reductions are not creating 

expected visibility improvements; and, 

2) that wintertime visibility problems 

should be ignored due to lower tourist 

visits in Utah’s national parks. 

Response: We note the commenter’s 

concerns regarding consideration of 

these two factors. These two factors are 

outside the scope of the RH regulation 

and were not considered by EPA in its 

proposed partial approval and partial 

disapproval of the State’s BART 

determinations. As discussed in detail 

elsewhere in this action, EPA finds that 

the State’s trading program meets the 

regulatory requirements. 

Comment: The State supports EPA’s 

proposed approval of the projected 

visibility improvement in Part K of the 

Utah SIP. 77 FR 28833–34. As EPA has 

noted, the modeling results show 

projected visibility improvement for the 

best 20% days and no degradation for 

the 20% best days at the 16 Class I areas 

on the Colorado Plateau. In fact, the 

projected improvement is greater than 

described in EPA’s proposed approval. 

The visibility results in Table 24 of 

Utah’s SIP were adopted in 2008 based 

on the PRP18a modeling that was the 

most current modeling available at the 

time, not PRP18b as described in EPA’s 

proposal. Table 1 shows the additional 

improvement shown by the WRAP’s 

PRP18b modeling. 

Response: We recognize the 

commenter’s support of our proposed 

approval of the projected visibility 

improvement. 

Comment: The GCVTC evaluated haze 

at Class I Areas on the Colorado Plateau, 

and determined that stationary source 

reductions should be focused on sulfur 

dioxide because this is the pollutant 

that has the most significant impact on 

haze. Utah’s BART determination was 

developed within the context of the 

overall SIP and reflected this focus on 

SO2. The sulfate impact is much more 

significant than the nitrate impact, 

especially on the middle and best 20% 

days. Fire (organic carbon) is the second 

most significant component on the 

worst days). In addition, sulfate is a 

problem year round, while the nitrate 

impact is most significant during the 

winter months when visitation is low at 

Utah’s national parks. PacifiCorp has 

already made significant reductions in 

NOX at the Hunter and Huntington 

plants. The nitrate component of haze in 

Class I areas on the Colorado Plateau 

does not justify going beyond the 

presumptive BART level for NOX

established in EPA’s BART rule. 

Response: We do not agree with this 

comment. States are required to meet 

the requirements of 40 CFR 51.308(e)(1) 

and do a BART determination on a 

source-by-source basis in accordance 

with the BART Guidelines for EGUs 

over 750 MW. A regional scale modeling 

exercise does not obviate the 

requirement that the state perform such 

an analysis and that ‘‘States must 

identify the best system of continuous 

emission control technology for each 

source subject to BART * * *’’ 70 FR 

39158. 

Comment: We received 1,873 

comments from members of National 

Parks and Conservation Association 

generally supportive of our disapproval 

and encouraging strict controls on the 

BART units. We also received 

comments from the general public and 

medical community generally in 

support of our action. 

Response: We note the commenters’ 

support of our proposed action. 

I. Additional Comments Pertaining to 

BART 

We are not responding to the 

following comments on BART that 

pertain to cost effectiveness, control 

effectiveness, visibility improvement, 

and other factors. We are not responding 

because we are disapproving the State’s 

BART determinations and will consider 

such comments when we take proposed 

action on BART determinations for the 

four Utah subject to BART EGUs. The 

following is a summary of the 

comments: 

(1) Numerous retrofit technologies are 

available for the control of NOX from 

Hunter and Huntington Units 1 and 2. 

The suite of available retrofit control 

technologies for NOX control from coal 

boilers similar to these units is well 

known, and includes: selective catalytic 

reduction (SCR), LNBs, and separated 

overfire air (SOFA). 

(2) SCR is technically feasible for all 

the units. 

(3) SCR is a highly effective control 

technology that can achieve 90% 

reductions or higher and meet limits of 

0.05 lbs/MMBtu or lower. 

(4) The costs of SCR along with 

upgraded LNBs and SOFA at Hunter 

Units 1 and 2 and Huntington Units 1 

and 2 are reasonable. The commenter 

estimated that costs for LNBs with 

SOFA and SCR at a NOX rate of 0.05 lb/ 

MMBtu range from $1,700–$2,000/ton 

in 2010 dollars. 

(5) The commenter went on to 

describe the methodology that they used 

to come to their cost effectiveness 

conclusions: ‘‘[t]oo [sic] summarize, we 

calculated cost effectiveness of NOX

controls at Hunter Units 1 and 2 and 

Huntington Units 1 and 2 as follows. 

Based on the Sargent & Lundy SCR IPM 

Cost Module modified to be consistent 

with the Control Cost Manual 

methodology and to be more realistic of 

the costs for these units, as discussed 

above, we estimated the capital and 

O&M costs of SCR at Hunter Units 1 and 

2 and Huntington Units 1 and 2. Costs 

were estimated in 2010 dollars. We 

estimated the capital and O&M costs of 

new LNBs and SOFA based on the cost 

estimates for the same controls provided 

by PacifiCorp to Wyoming DEQ for the 

similar but somewhat larger Jim Bridger 

Unit 1. We converted those costs to 

2010 dollars so that these NOX controls 

could be readily compared to the SCR 

controls and so we could evaluate the 

cost effectiveness of the combination of 

LNBs/SOFA plus SCR at the Hunter and 

Huntington BART units. Annualized 

capital costs were based on the real cost 

of capital to PacifiCorp and a 20-year 

life of the pollution controls. Cost 

effectiveness was based on the total 

annual costs (annualized capital + 

annual O&M) divided by the tons per 

year NOX emissions reductions 

expected from the average baseline 

emissions over 2002–2004. The 

assumed controlled NOX emission rates 

were 0.26 lb/MMBtu for LNBs/SOFA 

and 0.05 lb/MMBtu for LNBs/SOFA 

plus SCR.’’ 

(6) A proper NOX BART 

determination for Hunter Units 1 and 2 

and Huntington Units 1 and 2 must be 

based on a baseline period from the 

2001 to 2004 timeframe. This timeframe 

also reflects emissions prior to any NOX

upgrades that have already been 

completed at the Hunter and 

Huntington units. 

(7) According to the Utah regional 

haze plan, PacifiCorp has received 

permits to install new LNBs and two 

elevations of SOFA. Because these 

upgrades were intended to meet 

presumed regional haze requirements, 

these upgrades should be considered in 

a NOX BART analysis as part of the suite 

of controls to meet NOX BART 

requirements. 

(8) The energy and non-air quality 

environmental impacts of SCR are 

standard, limited, and can be mitigated. 

In addition to monetary costs, SCR 

typically has several associated impacts 

that may be noted in a BART analysis, 

including increased auxiliary power 

requirements, waste associated with 

catalyst replacement and disposal, 

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74370 Federal Register / Vol. 77, No. 241 / Friday, December 14, 2012 / Rules and Regulations 

ammonia slip, and the partial 

conversion of SO2 to sulfuric acid. The 

scope of these collateral impacts is 

nowhere near the scale that would 

outweigh the benefits provided by SCR. 

Thus, there are no energy or non-air 

quality environmental impacts that 

would preclude the application of SCR 

at these units. 

(9) The visibility benefit of applying 

SCR and LNB/SOFA will likely be 

significant. A complete BART analysis 

also evaluates the projected visibility 

benefits associated with the 

implementation of the discussed 

controls. Utah did not provide any 

modeling analyses in the Utah regional 

haze plan that evaluated NOX BART 

options. Utah did include data on the 

results of the modeling to determine 

which units were subject to BART in its 

regional haze plan, and the results show 

that each unit has significant impacts in 

all of the Class I areas located within 

300 km of each unit, including Capitol 

Reef, Canyonlands, Bryce Canyon, Zion, 

Grand Canyon, and Black Canyon of the 

Gunnison National Parks as well as 

Mesa Verde National Monument. 

However, the subject-to BART 

modeling results provided in the Utah 

regional haze plan very likely 

understate the true baseline case 

visibility impacts of these units because 

the SO2 emission rates modeled are 

much lower than the maximum 24-hour 

pound per hour SO2 emission rates 

based on actual emissions data 

submitted by PacifiCorp to EPA’s Clean 

Air Markets Database. 

(10) Lower PM limits are achievable 

and appropriate. EPA must revise PM 

emission limits for Hunter Units 1 and 

2 and Huntington Units 1 and 2 to 

reflect PM emission rates achievable 

with BART. We note that Utah’s 

proposed PM BART limits are unclear. 

Utah’s SIP submittal to EPA described 

(presumably filterable) PM limits of 0.05 

lbs/MMBtu, which is echoed by EPA in 

its proposal. However, the underlying 

administrative orders appear to require 

this limit only until the LNBs, baghouse, 

and wet FGD are installed, at which 

point it drops to a limit of 0.015 lbs/ 

MMBtu. Further, EPA’s proposal states 

that this is a rolling 30-day limit, where 

the administrative orders specify stack 

testing once per year. At a minimum, 

EPA must establish PM BART limits 

that reflect the most stringent level of 

control that the existing and proposed 

baghouses are capable of, and must 

account for the different types of 

particulate matter that are emitted. 

Consideration should be given to the 

following permit limits, which 

demonstrate achievable limits at or 

below 0.015 lbs/MMBtu. Three 

prevention of significant deterioration 

(PSD) permits have been issued with 

total PM10 limits of 0.010 lb/MMBtu 

based on installation of a fabric filter 

baghouse, including for Plant 

Washington, Longleaf, and Desert Rock. 

A PSD permit issued to the 

Intermountain Power Services 

Corporation sets BACT emissions limits 

of 0.013 lb/MMBtu for filterable PM and 

0.012 lb/MMBtu for filterable PM10. 

Similarly, a permit issued for the 

Comanche Generating Station Unit 3 in 

Colorado included BACT limits of 0.013 

lb/MMBtu for filterable PM and 0.012 

lb/MMBtu for filterable PM10. 

There is no reason that the Utah units 

could not achieve PM emission rates 

comparable to a new unit with a 

properly designed and operated 

baghouse. Other states have made low 

PM BART determinations as well. For 

example, U.S. EPA Region 9 adopted 

BART filterable particulate limits for the 

Four Corners power plant, Navajo 

Nation at Units 1–3 of 0.012 lb/MMBtu 

for each unit and at Units 4 and 5, 0.015 

lb/MMBtu. South Dakota adopted and 

EPA approved as BART for the Big 

Stone power plant a PM limit of 0.012 

lb/MMBtu, applicable at all times 

including startup, shutdown, and 

malfunction. 

Further, at the baghouses that are 

already installed, the limits should also 

be informed by the existing emissions, 

as determined by appropriate stack 

testing or CEMS. According to the 

available permits, this testing should 

already be completed and available for 

at least two units. 

For any unit that has not yet installed 

a baghouse, an important option to 

consider in BART particulate matter 

analyses is the selection of filtration 

media. The filtration media determines 

the control efficiency of a baghouse for 

very small particles, which makes the 

largest contribution visibility. As both 

PM10 and PM2.5 are regulated as BART 

pollutants, it is important to select a 

filtration media that optimizes the 

removal of these two fractions. There is 

a wide range of media that can be used, 

most of which are much more efficient 

for larger particles than smaller 

particles. 

Finally, at all units, methods to 

remove the condensable particulate 

matter, a major contributor to PM2.5 and 

visibility impairment, should be 

considered. The primary condensable 

particulate matter removal devices are 

SO2 scrubbers and wet electrostatic 

precipitators (WESPs). These have an 

achievable level of 99.99% PM control. 

A WESP could be installed either as a 

conversion of the outlet field of the 

existing electrostatic precipitator as a 

separate housing downstream of the 

primary electrostatic precipitator, or 

integrated into the scrubber, if one is 

present. The WESP would enhance the 

removal of both filterable PM2.5 and 

condensables. 

(11) EPA must evaluate BART for all 

PM. BART requires the evaluation of 

control technology for filterable PM10

and PM2.5 as well as condensable 

particulate matter. Because these 

sources are subject to BART for 

particulate matter, BART limits for both 

PM10 and PM2.5, including 

condensables, should be developed. 

V. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This action is not a ‘‘significant 

regulatory action’’ under the terms of 

Executive Order 12866 (58 FR 51735, 

October 4, 1993) and is therefore not 

subject to review under Executive 

Orders 12866 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. Burden is 

defined at 5 CFR 1320.3(b). 

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 final 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-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of today’s final rule on small 

entities, I certify that this action will not 

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Federal Register / Vol. 77, No. 241 / Friday, December 14, 2012 / Rules and Regulations 74371 

have a significant economic impact on 

a substantial number of small entities. 

This final rule will not impose any 

requirements on small entities because 

small entities are not subject to the 

requirements of this rule. We continue 

to be interested in the potential impacts 

of the final rule on small entities and 

welcome comments on issues related to 

such impacts. 

D. Unfunded Mandates Reform Act 

(UMRA) 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 104–4, establishes requirements for 

federal agencies to assess the effects of 

their regulatory actions on State, local, 

and Tribal governments and the private 

sector. Under section 202 of UMRA, 

EPA generally must prepare a written 

statement, including a cost-benefit 

analysis, for proposed and final rules 

with ‘‘Federal mandates’’ that may 

result in expenditures to State, local, 

and Tribal governments, in the 

aggregate, or to the private sector, of 

$100 million or more (adjusted for 

inflation) in any one year. Before 

promulgating an EPA rule for which a 

written statement is needed, section 205 

of UMRA generally requires EPA to 

identify and consider a reasonable 

number of regulatory alternatives and 

adopt the least costly, most costeffective, or least burdensome 

alternative that achieves the objectives 

of the rule. The provisions of section 

205 of UMRA do not apply when they 

are inconsistent with applicable law. 

Moreover, section 205 of UMRA allows 

EPA to adopt an alternative other than 

the least costly, most cost-effective, or 

least burdensome alternative if the 

Administrator publishes with the final 

rule an explanation why that alternative 

was not adopted. Before EPA establishes 

any regulatory requirements that may 

significantly or uniquely affect small 

governments, including Tribal 

governments, it must have developed 

under section 203 of UMRA a small 

government agency plan. The plan must 

provide for notifying potentially 

affected small governments, enabling 

officials of affected small governments 

to have meaningful and timely input in 

the development of EPA regulatory 

proposals with significant federal 

intergovernmental mandates, and 

informing, educating, and advising 

small governments on compliance with 

the regulatory requirements. 

Under Title II of UMRA, EPA has 

determined that this final rule does not 

contain a federal mandate that may 

result in expenditures that exceed the 

inflation-adjusted UMRA threshold of 

$100 million by State, local, or Tribal 

governments or the private sector in any 

one year. In addition, this final rule 

does not contain a significant federal 

intergovernmental mandate as described 

by section 203 of UMRA nor does it 

contain any regulatory requirements 

that might significantly or uniquely 

affect small governments. 

E. Executive Order 13132: Federalism 

Federalism (64 FR 43255, August 10, 

1999) revokes and replaces Executive 

Orders 12612 (Federalism) and 12875 

(Enhancing the Intergovernmental 

Partnership). Executive Order 13132 

requires EPA to develop an accountable 

process to ensure ‘‘meaningful and 

timely input by State and local officials 

in the development of regulatory 

policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that 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.’’ Under 

Executive Order 13132, EPA may not 

issue a regulation that has federalism 

implications, that imposes substantial 

direct compliance costs, and that is not 

required by statute, unless the federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by State and local 

governments, or EPA consults with 

State and local officials early in the 

process of developing the proposed 

regulation. EPA also may not issue a 

regulation that has federalism 

implications and that preempts State 

law unless the Agency consults with 

State and local officials early in the 

process of developing the proposed 

regulation. 

This rule 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 prohibit 

emissions from interfering with other 

States measures to protect visibility 

established in the CAA. Thus, Executive 

Order 13132 does not apply to this 

action. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175, entitled 

Consultation and Coordination with 

Indian Tribal Governments (65 FR 

67249, November 9, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ This final rule does not 

have tribal implications, as specified in 

Executive Order 13175. 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 

EPA interprets EO 13045 (62 FR 

19885, April 23, 1997) 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. However, to the 

extent this rule will limit emissions of 

NOX, SO2, and PM, the rule will have 

a beneficial effect on children’s health 

by reducing air pollution. 

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(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. 

This final rulemaking does not 

involve technical standards. Therefore, 

EPA is not considering the use of any 

voluntary consensus standards. 

mstockstill on DSK4VPTVN1PROD with 

74372 Federal Register / Vol. 77, No. 241 / Friday, December 14, 2012 / Rules and Regulations 

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 

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 final 

action 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. 

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, does not apply 

because this action is not a ‘‘major rule’’ 

as defined by 5 U.S.C. 804(2). 

List of Subjects in 40 CFR Part 52 

Environmental protection, 

Incorporation by reference, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Particulate matter, 

Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Dated: October 30, 2012. 

Howard M. Cantor, 

Acting Regional Administrator, Region 8. 

For the reasons stated in the 

preamble, 40 CFR part 52 is amended as 

follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart TT—Utah 

■ 2. Section 52.2320 is amended by 

adding paragraph (c)(71) to read as 

follows: 

§ 52.2320 Identification of plan. 

* * * * * 

(c) * * * 

(71) On May 26, 2011 and September 

29, 2011, the State of Utah submitted 

revisions to its State Implementation 

Plan to incorporate the requirements of 

the regional haze program. 

(i) Incorporation by reference 

(A) Title R307 of the Utah 

Administrative Code—Environmental 

Quality, Air Quality, Rule R307–150— 

Emission Inventories, sections -1, 

Purpose and General Requirements, -2, 

Definitions, -3, Applicability, -5, Sources 

Identified in R307–150(3)(2), Large 

Major Source Inventory Requirements, 

-6, Sources Identified in R307–150–3(3), 

-7, Sources Identified in R307–150–3(4), 

Other Part 70 Sources, and -8, Exempted 

Hazardous Air Pollutants. Effective 

December 31, 2003; as published in the 

Utah State Bulletin December 1, 2003 

and January 15, 2004. 

(B) Title R307 of the Utah 

Administrative Code—Environmental 

Quality, Air Quality, Rule R307–150— 

Emission Inventories, section -4, Sulfur 

Dioxide Milestone Emission Inventory 

Requirements. Effective September 4, 

2008; as published in the Utah State 

Bulletin July 1, 2008 and October 1, 

2008. 

(C) Title R307 of the Utah 

Administrative Code—Environmental 

Quality, Air Quality, Rule R307–250— 

Western Backstop Sulfur Dioxide 

Trading Program, sections -1, Purpose, 

-3, WEB Trading Program Trigger, -10, 

Allowance Transfers, -11, Use of 

Allowances from a Previous Year, and 

-13, Special Penalty Provisions for the 

2018 Milestone. Effective December 31, 

2003; as published in the Utah State 

Bulletin December 1, 2003 and January 

15, 2004. 

(D) Title R307 of the Utah 

Administrative Code—Environmental 

Quality, Air Quality, Rule R307–250— 

Western Backstop Sulfur Dioxide 

Trading Program, sections -2, 

Definitions, -4, WEB Trading Program 

Applicability, -5, Account 

Representative for WEB Sources, -6, 

Registration, -7, Allowance Allocations, 

-8, Establishment of Accounts, -9, 

Monitoring, Recordkeeping, and 

Reporting, and -12, Compliance. 

Effective November 10, 2008; as 

published in the Utah State Bulletin 

October 1, 2008 and December 1, 2008. 

(ii) Additional materials 

(A) Section XX of the Utah Regional 

Haze State Implementation Plan. 

Effective April 7, 2011. Published in the 

Utah State Bulletin February 1, 2011. 

[FR Doc. 2012–29406 Filed 12–13–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2011–0876; FRL–9736–6] 

Revisions to the California State 

Implementation Plan, South Coast Air 

Quality Management District 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: In this action, EPA is 

finalizing approval of South Coast Air 

Quality Management District 

(SCAQMD) Rule 317, ‘‘Clean Air Act 

Non-Attainment Fee,’’ as a revision to 

SCAQMD’s portion of the California 

State Implementation Plan (SIP). This 

action was proposed in the Federal 

Register on January 12, 2012 and 

concerns volatile organic compounds 

(VOC) and oxides of nitrogen (NOX). 

Rule 317 is a local fee rule submitted to 

address section 185 of the Clean Air Act 

(CAA or Act) with respect to the 1-hour 

ozone standard for anti-backsliding 

purposes. EPA is finalizing approval of 

Rule 317 as an alternative to the 

program required by section 185 of the 

Act. EPA has determined that 

SCAQMD’s alternative fee-equivalent 

program is not less stringent than the 

program required by section 185, and, 

therefore, is approvable as an equivalent 

alternative program, consistent with the 

principles of section 172(e) of the Act. 

DATES: This rule will be effective on 

January 14, 2013. 

ADDRESSES: EPA has established docket 

number EPA–R09–OAR–2011–0876 for 

this action. Generally, documents in the 

docket for this action are available 

electronically at http:// 

www.regulations.gov or in hard copy at 

EPA Region IX, 75 Hawthorne Street, 

San Francisco, California. While all 

documents in the docket are listed at 

http://www.regulations.gov, some 

information may be publicly available 

only at the hard copy location (e.g., 

copyrighted material, large maps, multivolume reports), and some may not be 

available in either location (e.g., 

confidential business information 

(CBI)). To inspect the hard copy 

materials, please schedule an 

appointment during normal business 

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: Lily 

Wong, EPA Region IX, (415) 947–4114, 

wong.lily@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we,’’ ‘‘us’’ 

and ‘‘our’’ refer to EPA. 

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