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[Federal Register Volume 77, Number 130 (Friday, July 6, 2012)]
[Rules and Regulations]
[Pages 39943-39948]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-16557]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2011-0598; FRL-9683-6]

Approval and Promulgation of Air Quality Implementation Plans; 
Illinois; Regional Haze

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving revisions to the Illinois State 
Implementation Plan, submitted on June 24, 2011, addressing regional 
haze for the first implementation period. EPA received comments 
disputing its proposed finding regarding best available retrofit 
technology, but EPA continues to believe that Illinois' plan limits 
power plant emissions as well as would be achieved by directly 
requiring best available retrofit technology. Therefore, EPA finds that 
the Illinois regional haze plan satisfactorily addresses Clean Air Act 
section 169A and Regional Haze Rule requirements for states to remedy 
any existing and prevent future anthropogenic impairment of visibility 
at mandatory Class I areas. EPA is also approving two state rules and 
incorporating two permits into the state implementation plan.

DATES: This final rule is effective on August 6, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2011-0598. All documents in the docket are listed on 
the www.regulations.gov web site. Although listed in the index, some 
information is not publicly available, i.e., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically through www.regulations.gov or in hard copy at the 
Environmental Protection Agency, Region 5, Air and Radiation Division, 
77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is 
open from 8:30 AM to 4:30 PM, Monday through Friday, excluding Federal 
holidays. We recommend that you telephone John Summerhays, 
Environmental Scientist, at (312) 886-6067 before visiting the Region 5 
office.

FOR FURTHER INFORMATION CONTACT: John Summerhays, Environmental 
Scientist, Attainment Planning and Maintenance Section, Air Programs 
Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West 
Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6067, 
summerhays.john@epa.gov.

SUPPLEMENTARY INFORMATION: This supplementary information section is 
arranged as follows:

I. Synopsis of Proposed Rule
II. Comments and Responses
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews

I. Synopsis of Proposed Rule

    Illinois submitted a plan on June 24, 2011, to address the 
requirements of Clean Air Act section 169A and the Regional Haze Rule, 
as codified in Title 40 Code of Federal Regulations Part 51.308 (40 CFR 
51.308).
    EPA published a notice of proposed rulemaking evaluating Illinois' 
submittal on January 26, 2012, at 77 FR 3966. This notice described the 
nature of the regional haze problem and the statutory and regulatory 
background for EPA's review of Illinois' regional haze plan. The notice 
provided a lengthy delineation of the requirements that Illinois 
intended to meet, including requirements for mandating BART, 
consultation with other states in establishing goals representing 
reasonable progress in mitigating anthropogenic visibility impairment, 
and adoption of limitations as necessary to implement a long-term 
strategy for reducing visibility impairment.
    Of particular interest were EPA's findings regarding BART. States 
are required to address the BART

[[Page 39944]]

requirements for sources with significant impacts on visibility, which 
Illinois defined as having at least 0.5 deciview impact on a Class I 
area. Using modeling performed by the Lake Michigan Air Directors 
Consortium (LADCO), Illinois identified 10 power plants and two 
refineries as having sufficient impact to warrant being subject to a 
requirement representing BART.\1\
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    \1\ The notice of proposed rulemaking lists 10 EGUs as being 
subject to BART (including two facilities owned by City Water Light 
and Power (CWLP)) but states that only 9 EGUs are subject to BART. 
This is because CWLP shut down the Lakeside plant that was subject 
to BART in 2009.
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    Seven of the power plants that were identified as being subject to 
the requirement for BART are addressed in one of two sets of provisions 
of Illinois' rules known respectively as the Combined Pollutant 
Standards (CPS), 35 Ill. Administrative Code 225.233, and the Multi-
Pollutant Standards (MPS), 35 Illinois Administrative Code 225.293-
225.299. These provisions are included in Illinois' mercury rules. 
These rules offer the affected utilities (Midwest Generation, Dynegy, 
and Ameren) a choice of limitations, either to include 1) specific 
mercury emission limitations effective in 2015 with no limits on 
emissions of sulfur dioxide (SO2) or nitrogen oxides 
(NOX) or 2) work practice requirements for installation of 
mercury control equipment in conjunction with limits on SO2 
and NOX emissions. Illinois' submittal includes letters from 
the affected companies choosing the option that includes SO2 
and NOX emission limits, which pursuant to Illinois' rules 
establishes these limits as enforceable limits. In the case of Midwest 
Generation, three of its power plants meet the criteria for being 
subject to BART, and six plants are governed by the SO2 and 
NOX limits in the Multi-Pollutant Standards. In the case of 
Dynegy, one of its power plants meets the criteria for being subject to 
BART, and four coal-fired power plants are governed by the 
SO2 and NOX limits in the (CPS). In the case of 
Ameren, three of its power plants meet the criteria for being subject 
to BART, and five coal-fired plants are governed by the SO2 
and NOX limits in the (CPS). In the notice of proposed 
rulemaking, EPA proposed to conclude that the emission reductions from 
the (MPS) and the (CPS) would be greater than the reductions that would 
occur with unit-specific implementation of BART on the subset of these 
sources that meet the criteria for being subject to BART. Therefore, 
EPA proposed to find that the (MPS) and the (CPS) suffice to address 
the BART requirement for the power plants of these three utilities.
    Illinois also developed source-specific limits to mandate BART for 
three additional power plants. These limits are adopted into two 
permits, one for Kincaid Generation's Kincaid Station and one for City 
Water, Light, and Power's (CWLP) Dallman Station and Lakeside Station. 
CWLP shutdown Lakeside Station in 2009, and the CWLP permit requires 
that the Lakeside Station never resume operation. Finally, Illinois 
found that Federal consent decrees regulating emissions from the two 
refineries with units subject to BART (facilities owned by ExxonMobil 
and Citgo) mandate control at the refineries in Illinois at least as 
much as would be required as BART. EPA proposed to conclude that 
Illinois satisfied BART requirements for the affected Illinois power 
plants and refineries.
    As stated in the notice of proposed rulemaking, Illinois did not 
rely on the Clean Air Interstate Rule (CAIR) for its BART 
determinations. Illinois is in the CAIR region. However, it used its 
state rules, permits, and consent decrees to achieve emission 
reductions that satisfy BART. This means that Illinois is not reliant 
on CAIR and, thus, it has avoided the issues of other CAIR region 
states that relied on CAIR. For similar reasons, Illinois' satisfaction 
of regional haze rule requirements is not contingent on the Cross-State 
Air Pollution Rule (CSAPR) and thus is not affected by the stay of that 
rule.

II. Comments and Responses

    EPA received comments from three commenters on its proposed 
rulemaking on the Illinois regional haze plan. These commenters 
included ExxonMobil, the U.S. Forest Service, and the Environmental Law 
and Policy Center (ELPC).
    ExxonMobil comments that section 169A(b)(2)(A) requires sources to 
implement BART as determined by the state (emphasis in the original), 
and agrees with Illinois' and EPA's conclusion that ``emission limits 
established by the consent decrees may be relied upon by Illinois for 
addressing the BART requirement for these facilities.'' While EPA has 
the responsibility to evaluate whether it believes that states have 
made appropriate determinations as to what restrictions constitute 
BART, EPA appreciates the comment supporting its position, which EPA 
has no reason to change, that the Federal consent decrees for 
ExxonMobil and Citgo adequately mandate BART for the two Illinois 
refineries.
    The U.S. Forest Service wrote to express its appreciation to 
Illinois for addressing prior Forest Service comments and to express 
support for EPA's proposed approval of Illinois' plan.
    ELPC sent extensive comments objecting that control requirements 
for power plants in Illinois do not suffice to meet the BART 
requirements and leave Illinois short of meeting reasonable progress 
requirements. These comments are addressed in detail in the discussion 
that follows.
    Comment: ELPC argues that ``the plain language of the Clean Air Act 
precludes alternatives to BART.'' Since the Illinois plan establishes 
limits that govern the collective emissions of multiple power plants 
owned by pertinent utilities, the plan relies on an alternative to BART 
as described in 40 CFR 51.308(e)(2) rather than mandating BART on a 
source-specific basis. ELPC states that BART at BART-eligible sources 
is expressly mandated in Clean Air Act section 169A(b)(2)(A). ELPC 
acknowledges that the Clean Air Act authorizes limited exemptions from 
BART, in cases which EPA determines pursuant to section 169A(c)(1) that 
``the source does not either by itself or in combination with other 
sources `emit any air pollutant which may reasonably be anticipated to 
cause or contribute to a significant impairment of visibility in any 
mandatory class I federal area.' '' ELPC observes that ``[n]owhere in 
Section 169A did Congress contemplate or sanction sweeping alternative 
programs'' such as Illinois uses to address BART for many of its BART-
subject power plants ``in lieu of source specific BART.''
    ELPC acknowledges that EPA promulgated regulations reflecting its 
interpretation that BART requirements may be satisfied by alternative 
programs, and ELPC acknowledges that ``the DC Circuit Court of Appeals 
has upheld [these] regulations.'' Nevertheless, ``because these [court 
rulings] cannot be reconciled with the plan language of the Clean Air 
Act,'' ELPC urges that ``EPA should not rely on [this interpretation] 
to exempt Illinois from implementing BART.''
    Response: In several previous rules, EPA has concluded that Clean 
Air Act section 169A may reasonably be interpreted to provide that the 
requirement for BART may be satisfied by an alternative program that 
provides greater visibility protection in lieu of limitations that 
directly mandate BART for individual sources determined to be subject 
to the BART requirement. See 40 CFR 51.308(e), 64 FR 35741-35743 (July 
1, 1999), and 70 FR 39136 (July 6, 2005).

[[Page 39945]]

As ELPC acknowledges, the Court of Appeals for the District of Columbia 
Circuit supports that interpretation, Center for Energy and Economic 
Development v. EPA, 398 F.3d 653, 660 (D.C. Cir. 2005) (``CEED'') 
(finding reasonable EPA's interpretation of CAA section 169(a)(2) as 
requiring BART only as necessary to make reasonable progress), as has 
the Ninth Circuit, Central Arizona Water Conservation District v. EPA, 
990 F.2d 1531, 1543 (9th Cir. 1993) Therefore, EPA views Illinois' 
approach as an acceptable means of addressing the BART requirement in 
section 169A.
    Comment: ELPC comments that ``Illinois was required, but failed, to 
make a BART determination for each source subject to BART in the 
state.'' ELPC lists the elements of a BART analysis that a state ``must 
submit'' (emphasis in original) pursuant to 40 CFR 51.308(e)(2), and 
ELPC states that Illinois has failed to make the BART determination 
based on source-specific information that EPA's regulations require. 
``Rather than make a BART determination for each individual source 
subject to BART that would be covered by Illinois' proposed 
alternative,'' ELPC objects that the state ``simply compared projected 
emissions reductions [from the adopted restrictions] to presumptive 
BART emissions.'' ELPC comments that ``[b]ecause Illinois entirely 
failed to use source-specific information or undertake a comprehensive 
five factor analysis to determine BART, its proposed Regional Haze 
State Implementation Plan (SIP) may not be approved.
    Response: The primary requirement, as specified in Clean Air Act 
section 169A, is for sources to procure, install, and operate BART. In 
some cases this requirement is met with an analysis of potential 
controls considering five factors set out in EPA's regional haze rule 
(a ``five-factor analysis''). 40 CFR 51.308(e)(1)(ii)(A). As noted 
above, EPA has determined that this requirement can be met by a state 
establishing an alternative set of emission limits which mandate 
greater reasonable progress toward visibility improvement than direct 
application of BART on a source-by-source basis.
    In promulgating the 1999 regional haze regulations, EPA stated that 
to demonstrate that emission reductions of an alternative program would 
result in greater emission reductions, ``the State must estimate the 
emission reductions that would result from the use of BART-level 
controls. To do this, the State could undertake a source-specific 
review of the sources in the State subject to BART, or it could use a 
modified approach that simplifies the analysis.'' 64 FR 35742 (July 1, 
1999).
    In guidance published on October 13, 2006, EPA offered further 
clarification for states for assessing alternative strategies, in 
particular regarding the benchmark definition of BART to use in judging 
whether the alternative is better. See 71 FR 60612. In this rulemaking, 
EPA stated in the preamble that the presumptive BART levels given in 
the BART guidelines would be a suitable baseline against which to 
compare alternative strategies where the alternative has been designed 
to meet a requirement other than BART. 71 FR at 60619; see also 40 CFR 
51.308(e)(2)(i)(C). Illinois' analysis is fully consistent with EPA's 
conclusions in this rulemaking.
    Nevertheless, EPA undertook further analysis comparing Illinois' 
strategy against more stringent definitions of BART. In brief, EPA 
found that the alternative restrictions imposed by Illinois can be 
demonstrated to provide greater emission reductions and greater 
visibility improvement than even very conservative definitions of BART, 
even without a full analysis of the emission levels that constitute 
BART. The demonstration is discussed below, in the context of response 
to comments addressing the magnitude of controls at Illinois power 
plants.
    Comment: ELPC believes that the pertinent requirements in Illinois' 
plan ``will not achieve greater reasonable progress toward natural 
visibility conditions than BART.'' Furthermore, ``the MPS/CPS contains 
absolutely no requirements for specific control equipment to be 
installed or operated at any source subject to BART in Illinois.'' ELPC 
identifies several examples of BART units that are expected to comply 
with the MPS or CPS with controls that are less effective than BART-
level controls. ELPC also finds it problematic that ``requirements for 
2017 for Ameren exceed presumptive BART requirements for NOX 
at one of the three plants subject to BART, and far exceed presumptive 
SO2 BART limits at all three (emphasis in original) Ameren 
plants subject to BART.'' ELPC raises similar concerns in relation to 
specified Midwest Generation (MWG) plants. For this reason, ``and 
because Ameren and MWG need not meet even those weak requirements at 
their plants subject to BART, the MPS/CPS is not `better' than 
presumptive BART limits.''
    Response: ELPC appears to misunderstand the applicable test for 
alternate strategies for addressing BART. In particular, ELPC appears 
to believe that under the alternative approach, Illinois must require 
BART-level controls at each unit subject to BART. In fact, the 
underlying principle of EPA's guidance on alternative measures is to 
offer states the flexibility to require less control at BART units than 
BART-level control, provided the states provide additional control at 
non-BART units that more than compensates for any degree to which 
control at BART units falls short of BART. Illinois is using precisely 
this flexibility. Irrespective of the degree to which control at 
individual power plant BART units may be less stringent than the limits 
that for those particular units would be defined as BART, Illinois is 
requiring control across a universe of sources that includes many 
sources that are not subject to BART, thereby providing reductions that 
under EPA's rules and BART guidelines on alternative measures can 
compensate for any shortfall in control at BART units.
    In response to these comments, EPA conducted further analysis of 
whether Illinois' requirements, addressing a substantial number of 
sources, can be expected to provide greater reasonable progress toward 
visibility protection than application of BART to the more limited 
number of units subject to a requirement for BART. EPA's analysis did 
not rely on a full five-factor analysis of BART at each BART-subject 
unit. Instead of using presumptive limits, EPA used emission limits 
described in EPA's RACT/BACT/LAER Clearinghouse as being applied to new 
sources. These limits, namely 0.06 pounds per million British Thermal 
Units (/MMBTU) for NOX and also 0.06 /
MMBTU for SO2, are as stringent and are probably more 
stringent than would generally be expected to be met at existing power 
plants, due to the design constraints that are sometimes inherent in 
controlling emissions at an existing facility.
    A more complete description of EPA's analysis is provided in the 
technical support document being placed in the docket for this rule. 
Table 1 provides a summary of the results of this analysis.

[[Page 39946]]

                          Table 1--Emission Reductions Mandated by Illinois' Plan and Conservative Estimates of BART Reductions
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                            NOX reductions  (tons/year)     SO2 reductions  (tons/year)
                         Company                            BART units      Total units  ---------------------------------------------------------------
                                                                                              IL Plan       Lowest BART       IL Plan       Lowest BART
--------------------------------------------------------------------------------------------------------------------------------------------------------
Ameren..................................................               5              24          24,074          23,849         111,997          74,349
Dynegy..................................................               3              10          23,867          18,551          47,378          22,444
MWG.....................................................               9              19          37,819          28,061          61,292          38,963
CWLP....................................................               3               3           5,375           5,560           4,875           5,619
Kincaid.................................................               2               2          16,874          18,970          12,827          15,730
                                                         -----------------------------------------------------------------------------------------------
    Totals..............................................              22              58         108,009          94,991         238,369         157,105
--------------------------------------------------------------------------------------------------------------------------------------------------------

    This table shows that the reductions from Illinois' plan, including 
reductions from the MPS, the CPS, and the permits for CWLP and Kincaid 
Generation, provide significantly greater emission reductions, 
especially for SO2 but also for NOX, than even 
very conservative definitions of BART for the BART-subject units. While 
Illinois' limits for the CWLP and Kincaid facilities viewed 
individually are subject to limits at approximately presumptive levels, 
and thus mandate less reduction than would be mandated by conservative 
definitions of BART, this analysis indicates that the collective 
emission reductions from Illinois power plants are greater than those 
that would be achieved by requiring achievement of even very 
conservative limits at the units that are subject to a BART 
requirement.
    An additional point to be addressed is whether Illinois' plan, 
achieving greater emission reductions overall than application of BART 
on BART-subject units, can be expected also to achieve greater 
visibility protection than application of BART on BART-subject units. 
In general, Illinois' power plants are substantial distances from any 
Class I area. The least distance from any BART-subject Illinois power 
plant to any Class I area is from Dynegy's Baldwin power plant to the 
Mingo Wilderness Area, a distance of about 140 kilometers. The CWLP and 
Kincaid facilities are in the middle of the State; for example, Kincaid 
Station is about 300 kilometers from the Mingo Wilderness Area. Given 
these distances, and given that the averaging in Illinois' plan 
(averaging among Illinois plants of an individual company) is only 
authorized within the somewhat limited region within which each 
utility's plants are located, a reallocation of emission reductions 
from one plant to another is unlikely to change the impact of those 
emission reductions significantly. Consequently, in these 
circumstances, EPA is confident that the significantly greater emission 
reductions that Illinois mandates will yield greater progress toward 
visibility protection as compared to the benefits of a conservative 
estimate of BART.
    Comment: ELPC comments that the ``MPS/CPS does not require that all 
necessary emissions reductions take place during the first long-term 
strategy for regional haze.''
    Response: EPA does not prohibit reductions after the BART 
compliance deadline (in 2017); Illinois is only required to mandate at 
least measures that will achieve greater reasonable progress by the 
BART compliance deadline. While the MPS and the CPS establish a series 
of progressively more stringent limits extending to 2017 and beyond, 
both Illinois' analysis and the EPA analysis discussed above 
(summarized in Table 1) evaluate satisfaction of BART requirements by 
considering the emission limits in effect in 2017. The conclusion of 
that analysis is that the reductions necessary to meet BART 
requirements occur by the deadline for such reductions to occur. The 
fact that Illinois' plan requires additional reductions after 2017 is 
not a shortcoming of Illinois' plan.
    Comment: ELPC expects the affected utilities to use the reductions 
mandated here to comply with CSAPR. ELPC concludes that these 
reductions cannot be considered surplus and thus are not creditable for 
meeting BART requirements.
    Response: Under 40 CFR 51.308(e)(2), the alternative measures need 
only be surplus to reductions from measures adopted to meet 
requirements of the Clean Air Act as of the baseline date of the SIP, 
i.e. 2002. (See 40 CFR 51.308(e)(2)(iv).) In addition, 40 CFR 51.308(e) 
expressly provides that the BART requirements may be met by compliance 
with a trading program of adequate stringency even without 
establishment of state-specific limits. Therefore, the existence of a 
trading program, and influence that the state limits have on a 
utility's strategy for complying with the trading program requirements, 
cannot be grounds for disapproving a state plan that satisfies 
alternative BART requirements without reliance on the trading program.
    Comment: ELPC expresses a number of concerns about the BART 
analysis for Kincaid Station. ELPC particularly expresses concern that 
the company analyzes wet flue gas desulfurization for a scenario based 
on a relatively high sulfur Illinois coal but analyzes dry sorbent 
injection based on a low sulfur western coal, biasing the comparison 
toward a conclusion that use of the control that is least effective at 
removing SO2 nevertheless achieves the lowest emissions of 
SO2.
    Response: EPA agrees that use of higher sulfur coal in the scenario 
of wet flue gas desulfurization creates a mismatch in comparing this 
control to the other control options. However, ELPC does not 
demonstrate that a more appropriate comparison would yield a different 
result. Indeed, given how much more expensive wet flue gas 
desulfurization has been estimated to be for this facility as compared 
to dry sorbent injection (company estimates of annualized costs of $125 
million versus $25 million), EPA believes that a revised BART analysis 
that used the same fuel for all scenarios, and thus achieved lower 
emissions with wet flue gas desulfurization, would still show that wet 
flue gas desulfurization is not cost-effective for this facility. 
Therefore, EPA continues to believe that Illinois made the appropriate 
BART determination for this facility.
    Comment: ELPC objects to the use of annual average limits, 
expressing concern that annual average limits allow individual days of 
concern to have excessive visibility impairment.
    Response: EPA's BART guidance establishes presumptive averaging 
times of 30 days or shorter, but EPA also finds Illinois' limits to be 
approvable. While a limit expressed as an annual average is inherently 
less stringent than the same limit expressed as a 30-day average, EPA 
believes that Illinois provides adequate compensation in part by 
setting some limits below presumptive levels and in part by

[[Page 39947]]

limiting several units that are not subject to a BART requirement.
    A useful perspective is to examine the metrics by which regional 
haze is evaluated. These metrics are averages of visibility across 20 
percent of the days of the year, in particular across the 20 percent of 
days with the worst visibility and across the 20 percent of days with 
the best visibility. (See 64 FR 35734) Twenty percent of 365 days in a 
year is 73 days. Furthermore, the days that have better or worse 
visibility are distributed throughout the year, so that allowance of 
greater variability in daily or monthly emissions would not necessarily 
yield worse (or better) visibility. Thus, while a 30-day average limit 
would be better suited to assuring appropriate mitigation of visibility 
impairment, EPA finds Illinois' annual average limitations to be 
adequately commensurate with the averaging time inherent in the 
visibility metrics being addressed.
    Another facet of the use of annual rather than 30-day or shorter 
averages is stringency. Given normal variability in emissions, an 
annual average limitation is by definition less stringent than a 30-day 
or shorter average limitation set at the same level. In some contexts, 
especially those involving short-term air quality standards, EPA would 
not accept an annual average limitation without a demonstration that 
the limitation suffices to mandate that short-term average emission 
levels must remain below some definable, adequate level. However, 
different criteria are warranted in the context of regional haze, for 
which the relevant emissions are the emissions on the 20 percent of 
days with worst visibility and the 20 percent of days with best 
visibility. Examining the stringency of the particular limitations that 
Illinois has adopted, and considering degree of variability in 73-day 
average emissions that might be expected with an annual average 
emission limit, EPA finds that Illinois' annual average limitations are 
sufficiently stringent to conclude that emissions on a 30-day average 
basis can be expected to provide the visibility improvement that 
Illinois is required to provide.
    Comment: ELPC comments that Illinois' long-term strategy must be 
disapproved. ELPC expresses particular concern that Illinois' plan does 
not mandate emission reductions for two power plants, specifically 
Ameren's Joppa plant and Southern Illinois Power Company's Marion 
plant, which ELPC believes must be mandated ``to achieve the reasonable 
progress goals for Class I areas affected by the state.'' ELPC notes 
that ``Illinois claimed that existing or soon-to-be-implemented 
regulatory program''--in particular, the MPS/CPS and CSAPR--``would 
require sufficient emissions reductions on the 15 most significant 
sources so as to ensure achievement of reasonable progress goals in 
impacted Class I areas.'' ELPC acknowledges that the Joppa Plant is 
addressed to the extent that Ameren's plants are collectively limited 
under the MPS, but ELPC observes that Ameren has the choice to comply 
with the MPS ``without making any reductions at Joppa,'' even though 
the plant has ``a Q/D ratio'' (dividing emissions by distance to the 
nearest Class I area) that is ``nearly three times larger than any 
other evaluated source.'' ELPC also objects that CSAPR ``also does not 
ensure emission reductions at either Joppa or Marion, because (1) the 
rule is under legal challenge, is currently stayed, and may never go 
into effect, (2) ``does not require emission reductions at particular 
plants,'' and (3) by restricting annual emissions does not necessarily 
limit emissions in seasons when the most degradation in visibility may 
occur.
    Response: Achievement of the applicable reasonable progress goals 
is not contingent on Illinois limiting emissions from the Joppa or 
Marion plants in particular. Given the distances of the sources in 
Illinois from affected Class I areas, the least of which is about 120 
kilometers from the Joppa plant to Mingo Wilderness Area, the impact on 
visibility is primarily dependent on the total emission reductions and 
not on the geographical distribution of those reductions. That is, even 
if Ameren for example were to opt to control its Coffeen plant (about 
240 kilometers from Mingo Wilderness Area) more than its Joppa plant, 
the net effect on visibility would likely be similar.
    EPA recognizes that CSAPR is under challenge and is currently 
stayed. However, Illinois is not relying on additional reductions from 
CSAPR to provide its appropriate contribution toward achieving 
reasonable progress in visibility protection. Therefore, the litigation 
status of CSAPR is not germane to the approvability of Illinois' 
regional haze plan.

III. What action is EPA taking?

    EPA is approving Illinois' regional haze plan as satisfying the 
applicable requirements in 40 CFR 51.308. Most notably, EPA concludes 
that Illinois has satisfied the requirements for BART in 40 CFR 
51.308(e) and has adopted a long-term strategy that reduces emissions 
in Illinois that, in combination with similar reductions elsewhere, EPA 
expects to suffice to achieve the reasonable progress goals at Class I 
areas affected by Illinois.
    In this action, EPA is also approving a set of rules and two 
permits for incorporation into the state implementation plan. 
Specifically, EPA is approving the following rules: Title 35 of 
Illinois Administrative Code Rules 225.233 (paragraphs a, b, e, and g), 
225.291, 225.292, 225.293, 225.295, 225.296 (except paragraph d), and 
225 Appendix A. While the rules provide the SO2 and 
NOX limits as one of two options that the affected utilities 
may choose between, EPA is incorporating into the SIP Illinois' 
submittal of letters from the affected utilities choosing the option 
including the SO2 and NOX limits, which under the 
approved rules makes these limits permanently enforceable. Therefore, 
these SO2 and NOX limits are state enforceable 
and, with this SIP approval, now become federally enforceable as well. 
EPA also considers the limits of the state permits and the refinery 
consent decrees to be enforceable. While Illinois adopted the above 
rules as part of a state rulemaking which mostly addressed mercury 
emissions, the mercury provisions are not germane to this rulemaking, 
Illinois did not submit the mercury-related rules, and the limited set 
of rules that Illinois submitted suffice to mandate the SO2 
and NOX emission controls that are pertinent to this action.

IV. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Clean Air Act 
and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);

[[Page 39948]]

     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by September 4, 2012. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

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

    Dated: May 29, 2012.
Susan Hedman,
Regional Administrator, Region 5.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

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

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

Subpart O--Illinois

0
2. Section 52.720 is amended by adding paragraph (c)(192) to read as 
follows:

Sec.  52.720  Identification of plan.

* * * * *
    (c) * * *
    (192) On June 24, 2011, Laurel Kroack, Illinois Environmental 
Protection Agency, submitted Illinois' regional haze plan to Cheryl 
Newton, Region 5, EPA. This plan includes a long-term strategy with 
emission limits for mandating emission reductions equivalent to the 
reductions from implementing best available retrofit technology and 
with emission reductions to provide Illinois' contribution toward 
achievement of reasonable progress goals at Class I areas affected by 
Illinois. The plan specifically includes regulations establishing 
Multi-Pollutant Standards and Combined Pollutant Standards, along with 
letters from the affected electric utilities establishing the 
applicability and enforceability of the option that includes sulfur 
dioxide and nitrogen oxide emission limits. The plan also includes 
permits establishing sulfur dioxide and nitrogen oxide emission limits 
for three additional electric generating plants and two consent decrees 
establishing sulfur dioxide and nitrogen oxide emission limits for two 
refineries.
    (i) Incorporation by reference.
    (A) The following sections of Illinois Administrative Code, Title 
35: Environmental Protection, Subtitle B: Air Pollution, Chapter 1: 
Pollution Control Board, Subchapter c: Emission Standards and 
Limitations for Stationary Sources, Part 225, Control of Emissions from 
Large Combustion Sources, published at 33 IL Reg 10427, effective June 
26, 2009, are incorporated by reference:
    (1) Subpart B: Control Of Mercury Emissions From Coal-Fired 
Electric Generating Units, Section 225.233 Multi-Pollutant Standards 
(MPS), only subsections (a), (b), (e), and (g), Section 225.291 
Combined Pollutant Standard: Purpose, Section 225.292 Applicability of 
the Combined Pollutant Standard, Section 225.293 Combined Pollutant 
Standard: Notice of Intent, Section 225.295 Combined Pollutant 
Standard: Emissions standards for NOX and SO2, 
and Section 225.296 Combined Pollutant Standard: Control Technology 
Requirements for NOX, SO2, and PM Emissions, 
except for 225.296(d).
    (2) Section 225.Appendix A Specified EGUs for Purposes of the CPS 
(Midwest Generation's Coal-Fired Boilers as of July 1, 2006).
    (B) Joint Construction and Operating Permit: Application Number 
09090046, Issued on June 23, 2011, to City Water, Light & Power, City 
of Springfield.
    (C) Joint Construction and Operating Permit: Application Number 
09050022, Issued on June 24, 2011, to Kincaid Generation, LLC.
    (ii) Additional material.
    (A) Letter from Guy Gorney, Midwest Generation to Dave Bloomberg, 
Illinois EPA, dated December 27, 2007, choosing to be subject to 
provisions of the Multi-Pollutant Standards that include emission 
limits for sulfur dioxide and nitrogen oxides.
    (B) Letter from R. Alan Kelley, Ameren, to Jim Ross, Illinois EPA, 
dated December 27, 2007, choosing to be subject to provisions of the 
Combined Pollutant Standards that include emission limits for sulfur 
dioxide and nitrogen oxides.
    (C) Letter from Keith A. McFarland, Dynegy, to Raymond Pilapil, 
Illinois EPA, dated November 26, 2007, choosing to be subject to 
provisions of the Combined Pollutant Standards that include emission 
limits for sulfur dioxide and nitrogen oxides.

[FR Doc. 2012-16557 Filed 7-5-12; 8:45 am]
BILLING CODE 6560-50-P
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