Vol. 79 Thursday, 

No. 20 January 30, 2014 

Part II 

Environmental Protection Agency 

40 CFR Part 52 

Approval, Disapproval and Promulgation of Implementation Plans; State of 

Wyoming; Regional Haze State Implementation Plan; Federal 

Implementation Plan for Regional Haze; Final Rule 

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5032 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2012–0026, FRL9905–42– 

R08] 

Approval, Disapproval and 

Promulgation of Implementation Plans; 

State of Wyoming; Regional Haze State 

Implementation Plan; Federal 

Implementation Plan for Regional Haze 

AGENCY: Environmental Protection 

Agency. 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is partially approving and 

partially disapproving a State 

Implementation Plan (SIP) submitted by 

the State of Wyoming on January 12, 

2011, that addresses regional haze. This 

SIP was submitted to address the 

requirements of the Clean Air Act (CAA 

or ‘‘the Act’’) and rules that require 

states to address in specific ways any 

existing anthropogenic impairment of 

visibility in 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 approving several aspects 

of Wyoming’s regional haze SIP that we 

had proposed to disapprove in our June 

10, 2013 proposed rule in light of public 

comments and newly available 

information indicating the adequacy of 

the SIP with respect to those aspects. 

EPA is also approving some aspects of 

the State’s SIP that we proposed to 

approve. EPA is promulgating a Federal 

Implementation Plan (FIP) to address 

some of the deficiencies identified in 

our proposed partial disapproval of 

Wyoming’s regional haze SIP issued on 

June 10, 2013. EPA is taking this action 

pursuant to sections 110 and 169A of 

the CAA. 

DATES: This final rule is effective March 

3, 2014. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R08–OAR–2012–0026. 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 AFUDC mean or refer to 

Allowance for Funds Utilized During 

Construction. 

iii. The initials APA mean or refer to the 

Administrative Procedures Act. 

iv. The initials AQRV mean or refer to Air 

Quality Related Value. 

v. The initials BACT mean or refer to Best 

Available Control Technology. 

vi. The initials BART mean or refer to Best 

Available Retrofit Technology. 

vii. The initials CAMD mean or refer to 

Clean Air Markets Division. 

viii. The initials CAMx mean or refer to 

Comprehensive Air Quality Model. 

ix. The initials CCM mean or refer to EPA’s 

Control Cost Manual. 

x. The initials CLRC mean or refer to the 

Construction Labor Research Council. 

xi. The initials CMAQ mean or refer to 

Community Multi-Scale Air Quality 

modeling system. 

xii. The initials CSAPR mean or refer to the 

Cross-State Air Pollution Rule. 

xiii. The initial DEQ mean or refer to the 

Wyoming Department of Environmental 

Quality. 

xiv. The initials EGUs mean or refer to 

Electric Generating Units. 

xv. The initials EIS mean or refer to 

Environmental Impact Statement. 

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

or refer to the United States Environmental 

Protection Agency. 

xvii. The initials ESP mean or refer to 

electrostatic precipitator. 

xviii. The initials FIP mean or refer to 

Federal Implementation Plan. 

xix. The initials FLM mean or refer to 

Federal Land Managers. 

xx. The initials FR mean or refer to the 

Federal Register. 

xxi. The initials GAQM mean or refer to 

Guidance on Air Quality Models. 

xxii. The initials IMPROVE mean or refer 

to Interagency Monitoring of Protected Visual 

Environments monitoring network. 

xxiii. The initials IPM mean or refer to 

Integrated Planning Model. 

xxiv. The initials IWAQM mean or refer to 

Interagency Workgroup on Air Quality 

Modeling. 

xxv. The initials LNB mean or refer to low 

NOX burners. 

xxvi. The initials LRS mean or refer to 

Laramie River Station. 

xxvii. The initials LTS mean or refer to 

long term strategy. 

xxviii. The initials MATS mean or refer to 

the Mercury and Air Toxics Standard. 

xxix. The initials MW mean or refer to 

megawatts. 

xxx. The initials NAAQS mean or refer to 

National Ambient Air Quality Standards. 

xxxi. The initials NEPA mean or refer to 

National Environmental Policy Act. 

xxxii. The initials NH 3 mean or refer to 

ammonia. 

xxxiii. The initials NO X mean or refer to 

nitrogen oxides. 

xxxiv. The initials OFA mean or refer to 

overfire air. 

xxxv. The initials PM mean or refer to 

particulate matter. 

xxxvi. The initials PM 2.5 mean or refer to 

particulate matter with an aerodynamic 

diameter of less than 2.5 micrometers. 

xxxvii. The initials PM 10 mean or refer to 

particulate matter with an aerodynamic 

diameter of less than 10 micrometers. 

xxxviii. The initials PTE mean or refer to 

potential to emit. 

xxxix. The initials RAVI mean or refer to 

reasonably attributable visibility impairment. 

xl. The initials RHR mean or refer to the 

Regional Haze Rule. 

xli. The initials RIS mean or refer to 

Regulatory Impact Statement. 

xlii. The initials RPG mean or refer to 

reasonable progress goals. 

xliii. The initials RPO mean or refer to 

Regional Planning Organization. 

xliv. The initials SCR mean or refer to 

selective catalytic reduction. 

xlv. The initials SIP mean or refer to State 

Implementation Plan. 

xlvi. The initials SNCR mean or refer to 

selective non-catalytic reduction. 

xlvii. The initials SO 2 mean or refer to 

sulfur dioxide. 

xlviii. The initials SOFA mean or refer to 

separated overfire air. 

xlix. The initials UMRA mean or refer to 

the Unfunded Mandates Reform Act. 

l. The initials URP mean or refer to 

Uniform Rate of Progress. 

li. The initials VOC mean or refer to 

volatile organic compounds. 

lii. The initials WAQSR mean or refer to 

the Wyoming Air Quality Standards and 

Regulations. 

liii. The initials WRAP mean or refer to the 

Western Regional Air Partnership. 

liv. The words Wyoming and State mean 

the State of Wyoming. 

Table of Contents 

I. Background 

A. Regional Haze 

i. Requirements of the CAA and EPA’s 

Regional Haze Rule (RHR) 

ii. Roles of Agencies in Addressing 

Regional Haze 

B. Requirements for the Regional Haze SIPs 

i. The CAA and the Regional Haze Rule 

ii. Determination of Baseline, Natural, and 

Current Visibility Conditions 

iii. Determination of Reasonable Progress 

Goals 

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Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 5033 

1We issued a finding of failure to submit for 

Wyoming only for the requirements of 40 CFR 

51.309(g)) regarding required SIP provisions, 

including NOX BART, to address visibility at Class 

I areas other than the 16 areas covered by the Grand 

Canyon Visibility Transport Commission Report. 

Wyoming had submitted a SIP for the rest of the 

requirements under 40 CFR 51.309 prior to our 

January 15, 2009 finding. 

2 77 FR 73926 (Dec. 12, 2012). 

3WildEarth Guardians v. Jackson, 1:11–cv–CMA– 

MEH (D. Colo.). 

4WildEarth Guardians v. Jackson, 1:11–cv–CMA– 

MEH (D. Colo.) (Dkt. Nos. 73, 74). 

iv. Best Available Retrofit Technology 

v. Long-Term Strategy 

vi. Coordinating Regional Haze and 

Reasonably Attributable Visibility 

Impairment 

vii. Monitoring Strategy and Other 

Implementation Plan Requirements 

viii. Consultation With States and Federal 

Land Managers (FLMs) 

C. Our Proposal 

D. Public Participation 

II. Final Action 

III. Changes From Proposed Rule and 

Reasons for Changes 

A. Changes to Proposed Costs and 

Visibility Improvements 

B. Changes to Our Proposed 

Determinations 

1. Dave Johnston Unit 3 

2. Dave Johnston Unit 4 

3. Naughton Units 1 and 2 

4. Naughton Unit 3 

5. Wyodak 

6. Jim Bridger 

7. Dave Johnston Units 1 and 2 

IV. Basis for Our Final Action 

A. Laramie River 

B. Jim Bridger 

C. Dave Johnston Units 3 and 4 

D. Naughton 

E. Wyodak 

F. Dave Johnston Units 1 and 2 (Reasonable 

Progress) 

V. Issues Raised by Commenters and EPA’s 

Responses 

A. Legal Issues 

1. EPA Authority and State Discretion 

2. Compliance With Section 307(d) 

3. Compliance With Section 169A(d) 

4. Public Hearings 

5. RHR and BART Guidelines 

6. Reasonableness Standard 

7. Reliance on Emission Reductions 

8. Presumptive Limits 

9. Compliance With 40 CFR 51.308 

10. Legal Analysis 

11. Consideration of Existing Controls 

12. Consent Decree 

13. Monitoring, Recordkeeping and 

Reporting 

B. Modeling 

1. General Comments 

2. EPA Modeling 

a. Description of Revised EPA Modeling 

b. Comments on EPA Modeling 

C. Overarching Comments on BART 

1. BART-Eligible Sources 

2. Cost of Controls 

3. Consideration of the Five Factors 

4. Visibility Improvement 

5. PM BART Determinations 

6. Incremental Costs and Visibility 

7. Other Comments on BART 

D. BART Sources 

1. Basin Electric Laramie River Station 

Units 1–3 

a. General Comments 

b. NOX BART Determination 

2. Jim Bridger Units 1–4 

a. NOX BART Determination 

b. PM BART Determination 

3. Dave Johnston Unit 3 and Unit 4 

a. NOX BART Determination 

b. Alternative Control Technology Proposal 

4. Naughton Units 1–3 

a. NOX BART Determination 

b. Alternative Control Technology Proposal 

5. Wyodak 

6. Trona Mines 

a. FMC Westvaco and General Chemical 

Green River 

b. FMC Granger Trona Mine 

E. Reasonable Progress 

1. RPGs 

2. Reasonable Progress Sources 

a. Oil and Gas Sources 

b. Dave Johnston Unit 1 and Unit 2 

F. General Comments 

1. Replacement of FIP Elements With SIP 

2. Public Comment 

3. Economic Concerns 

4. National Ambient Air Quality Standards 

(NAAQS) 

5. Other 

VI. Non-Relevant Comments From EPA’s 

Original June 4, 2012 Proposal 

A. General Comments 

B. Basin Electric Laramie River 

C. Jim Bridger Units 1–4 

D. Dave Johnston Units 3 and 4 

E. Naughton Units 1–3 

F. Wyodak 

G. Dave Johnston Units 1 and 2 

H. Modeling 

VII. 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 SIP 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 promulgate 

a FIP to fill this regulatory gap. CAA 

section 110(c)(1). This action involves 

the requirement that states have SIPs 

that address regional haze. 

Few states submitted a regional haze 

SIP prior to the December 17, 2007 

deadline, and on January 15, 2009, EPA 

found that 37 states, including 

Wyoming,1 the District of Columbia, 

and the Virgin Islands, had failed to 

submit SIPs addressing the regional 

haze requirements. 74 FR 2392. Once 

EPA has found that a state has failed to 

make a required submission, EPA is 

required to promulgate a FIP within two 

years unless the state submits a SIP and 

the Agency approves it within the twoyear period. CAA section 110(c)(1). 

Wyoming subsequently submitted a SIP 

addressing regional haze on January 12, 

2011. 

States in the west were given the 

option to meet the requirements of the 

RHR either under 40 CFR 51.309 or 40 

CFR 51.308. Wyoming chose to adopt 

the requirements of 40 CFR 51.309. 

Section 309 requires states to adopt 

regional haze strategies that are based 

on recommendations from the Grand 

Canyon Visibility Transport 

Commission for protecting the 16 Class 

I areas in the Colorado Plateau area, 

including a sulfur dioxide (SO2) 

backstop cap and trade program, SO2

milestones, and other requirements such 

as smoke management, a program to 

address mobile sources, and pollution 

prevention. Also, section 309(g) 

includes requirements for SIP 

provisions, including NOX BART, to 

address visibility impairment at other 

Class I areas. On December 12, 2012, we 

finalized approval of Wyoming’s 309 

regional haze SIP for the requirements 

relating to the SO2 backstop cap and 

trade program, milestones and the other 

requirements.2 Today’s action addresses 

the remaining portion of Wyoming’s 

SIP, including the Best Available 

Retrofit Technology (BART) 

determinations for nitrogen oxides 

(NOX) and particulate matter (PM). 

In a lawsuit in the U.S. District Court 

for the District of Colorado, 

environmental groups sued EPA for our 

failure to take timely action with respect 

to the regional haze requirements of the 

CAA and our regulations.3 In particular, 

the lawsuits alleged that we had failed 

to promulgate FIPs for these 

requirements within the two-year period 

allowed by CAA section 110(c) or, in the 

alternative, fully approve SIPs 

addressing these requirements. 

As a result of these lawsuits, we 

entered into a consent decree. The 

consent decree requires that we sign a 

notice of final rulemaking addressing 

the regional haze requirements for 

Wyoming by January 10, 2014.4 We are 

meeting that requirement with the 

signing of this final rule 

A. Regional Haze 

Regional haze is visibility impairment 

that is produced by a multitude of 

sources and activities which are located 

across a broad geographic area and emit 

fine particles (PM2.5) (e.g., sulfates, 

nitrates, organic carbon (OC), elemental 

carbon (EC), and soil dust), and their 

precursors (e.g., sulfur dioxide (SO2), 

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5034 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

5 Visual range is the greatest distance, in 

kilometers or miles, at which a dark object can be 

viewed against the sky. 6Areas designated as mandatory Class I Federal 

areas consist of national parks exceeding 6000 

acres, wilderness areas and national memorial parks 

exceeding 5000 acres, and all international parks 

that were in existence on August 7, 1977. 42 U.S.C. 

7472(a). In accordance with section 169A of the 

CAA, EPA, in consultation with the Department of 

Interior, promulgated a list of 156 areas where 

visibility is identified as an important value. 44 FR 

69122 (November 30, 1979). The extent of a 

mandatory Class I area includes subsequent changes 

in boundaries, such as park expansions. 42 U.S.C. 

7472(a). Although states and tribes may designate 

as Class I additional areas which they consider to 

have visibility as an important value, the 

requirements of the visibility program set forth in 

section 169A of the CAA apply only to ‘‘mandatory 

Class I Federal areas.’’ Each mandatory Class I 

Federal area is the responsibility of a ‘‘Federal Land 

Manager.’’ 42 U.S.C. 7602(i). When we use the term 

‘‘Class I area’’ in this action, we mean a ‘‘mandatory 

Class I Federal area.’’ 

7EPA’s regional haze regulations require 

subsequent updates to the regional haze SIPs. 40 

CFR 51.308(g)–(i). 

NOX, and in some cases, ammonia (NH3) 

and volatile organic compounds (VOC)). 

Fine particle precursors react in the 

atmosphere to form PM2.5, which 

impairs visibility by scattering and 

absorbing light. Visibility impairment 

reduces the clarity, color, and visible 

distance that one can see. PM2.5 can also 

cause serious health effects and 

mortality in humans and contributes to 

environmental effects such as acid 

deposition and eutrophication. 

Data from the existing visibility 

monitoring network, the ‘‘Interagency 

Monitoring of Protected Visual 

Environments’’ (IMPROVE) monitoring 

network, show that visibility 

impairment caused by air pollution 

occurs virtually all the time at most 

national park and wilderness areas. The 

average visual range 5 in many Class I 

areas (i.e., national parks and memorial 

parks, wilderness areas, and 

international parks meeting certain size 

criteria) in the western United States is 

100–150 kilometers, or about one-half to 

two-thirds of the visual range that 

would exist without anthropogenic air 

pollution. In most of the eastern Class 

I areas of the United States, the average 

visual range is less than 30 kilometers, 

or about one-fifth of the visual range 

that would exist under estimated 

natural conditions. 64 FR 35715 (July 1, 

1999). 

i. Requirements of the CAA and EPA’s 

Regional Haze Rule (RHR) 

In section 169A of the 1977 

Amendments to the CAA, Congress 

created a program for protecting 

visibility in the nation’s national parks 

and wilderness areas. This section of the 

CAA establishes as a national goal the 

‘‘prevention of any future, and the 

remedying of any existing, impairment 

of visibility in mandatory Class I 

Federal areas 6 which impairment 

results from manmade air pollution.’’ 

On December 2, 1980, EPA promulgated 

regulations to address visibility 

impairment in Class I areas that is 

‘‘reasonably attributable’’ to a single 

source or small group of sources, i.e., 

‘‘reasonably attributable visibility 

impairment.’’ 45 FR 80084. These 

regulations represented the first phase 

in addressing visibility impairment. 

EPA deferred action on regional haze 

that emanates from a variety of sources 

until monitoring, modeling and 

scientific knowledge about the 

relationships between pollutants and 

visibility impairment were improved. 

Congress added section 169B to the 

CAA in 1990 to address regional haze 

issues. EPA promulgated a rule to 

address regional haze on July 1, 1999. 

64 FR 35714 (July 1, 1999), codified at 

40 CFR part 51, subpart P. The RHR 

revised the existing visibility 

regulations to integrate into the 

regulation provisions addressing 

regional haze impairment and 

established a comprehensive visibility 

protection program for Class I areas. The 

requirements for regional haze, found at 

40 CFR 51.308 and 51.309, are included 

in EPA’s visibility protection 

regulations at 40 CFR 51.300–51.309. 

Some of the main elements of the 

regional haze requirements are 

summarized in section III of this 

preamble. The requirement to submit a 

regional haze SIP applies to all 50 states, 

the District of Columbia and the Virgin 

Islands. 40 CFR 51.308(b) requires states 

to submit the first implementation plan 

addressing regional haze visibility 

impairment no later than December 17, 

2007.7

Few states submitted a regional haze 

SIP prior to the December 17, 2007 

deadline, and on January 15, 2009, EPA 

found that 37 states (including 

Wyoming), the District of Columbia, and 

the Virgin Islands, had failed to submit 

SIPs addressing the regional haze 

requirements. 74 FR 2392. Once EPA 

has found that a state has failed to make 

a required submission, EPA is required 

to promulgate a FIP within two years 

unless the state submits a SIP and the 

Agency approves it within the two-year 

period. CAA section110(c)(1). 

ii. Roles of Agencies in Addressing 

Regional Haze 

Successful implementation of the 

regional haze program will require longterm regional coordination among 

states, tribal governments, and various 

federal agencies. As noted above, 

pollution affecting the air quality in 

Class I areas can be transported over 

long distances, even hundreds of 

kilometers. Therefore, to effectively 

address the problem of visibility 

impairment in Class I areas, states need 

to develop strategies in coordination 

with one another, taking into account 

the effect of emissions from one 

jurisdiction on the air quality in 

another. 

Because the pollutants that lead to 

regional haze can originate from sources 

located across broad geographic areas, 

EPA has encouraged the states and 

tribes across the United States to 

address visibility impairment from a 

regional perspective. Five regional 

planning organizations (RPOs) were 

developed to address regional haze and 

related issues. The RPOs first evaluated 

technical information to better 

understand how their states and tribes 

impact Class I areas across the country, 

and then pursued the development of 

regional strategies to reduce emissions 

of pollutants that lead to regional haze. 

The Western Regional Air Partnership 

(WRAP) RPO is a collaborative effort of 

state governments, tribal governments, 

and various federal agencies established 

to initiate and coordinate activities 

associated with the management of 

regional haze, visibility and other air 

quality issues in the western United 

States. WRAP member state 

governments include: Alaska, Arizona, 

California, Colorado, Idaho, Montana, 

New Mexico, North Dakota, Oregon, 

South Dakota, Utah, Washington, and 

Wyoming. Tribal members include 

Campo Band of Kumeyaay Indians, 

Confederated Salish and Kootenai 

Tribes, Cortina Indian Rancheria, Hopi 

Tribe, Hualapai Nation of the Grand 

Canyon, Native Village of Shungnak, 

Nez Perce Tribe, Northern Cheyenne 

Tribe, Pueblo of Acoma, Pueblo of San 

Felipe, and Shoshone-Bannock Tribes of 

Fort Hall. 

B. Requirements for Regional Haze SIPs 

The following is a summary of the 

requirements of the RHR. See 40 CFR 

51.308 for further detail regarding the 

requirements of the rule. 

i. The CAA and the Regional Haze Rule 

Regional haze SIPs must assure 

reasonable progress towards the 

national goal of achieving natural 

visibility conditions in Class I areas. 

Section 169A of the CAA and EPA’s 

implementing regulations require states 

to establish long-term strategies for 

making reasonable progress toward 

meeting this goal. Implementation plans 

must also give specific attention to 

certain stationary sources that were in 

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Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 5035 

8The preamble to the RHR provides additional 

details about the deciview. 64 FR 35714, 35725 

(July 1, 1999). 

9 Guidance for Estimating Natural Visibility 

Conditions Under the Regional Haze Rule, 

September 2003, EPA–454/B–03–005, available at 

http://www.epa.gov/ttncaaa1/t1/memoranda/

Regional_Haze_envcurhr_gd.pdf, (hereinafter 

referred to as ‘‘our 2003 Natural Visibility 

Guidance’’); and Guidance for Tracking Progress 

Under the Regional Haze Rule, (September 2003, 

EPA–454/B–03–004, available at http://

www.epa.gov/ttncaaa1/t1/memoranda/rh_tpurhr_

gd.pdf, (hereinafter referred to as our ‘‘2003 

Tracking Progress Guidance’’). 

existence on August 7, 1977, but were 

not in operation before August 7, 1962, 

and require these sources, where 

appropriate, to install BART controls for 

the purpose of eliminating or reducing 

visibility impairment. The specific 

regional haze SIP requirements are 

discussed in further detail below. 

ii. Determination of Baseline, Natural, 

and Current Visibility Conditions 

The RHR establishes the deciview as 

the principal metric or unit for 

expressing visibility. See 70 FR 39104, 

39118. This visibility metric expresses 

uniform changes in the degree of haze 

in terms of common increments across 

the entire range of visibility conditions, 

from pristine to extremely hazy 

conditions. Visibility expressed in 

deciviews is determined by using air 

quality measurements to estimate light 

extinction and then transforming the 

value of light extinction using a 

logarithmic function. The deciview is a 

more useful measure for tracking 

progress in improving visibility than 

light extinction itself because each 

deciview change is an equal incremental 

change in visibility perceived by the 

human eye. Most people can detect a 

change in visibility at one deciview.8

The deciview is used in expressing 

RPGs (which are interim visibility goals 

towards meeting the national visibility 

goal), defining baseline, current, and 

natural conditions, and tracking changes 

in visibility. The regional haze SIPs 

must contain measures that ensure 

‘‘reasonable progress’’ toward the 

national goal of preventing and 

remedying visibility impairment in 

Class I areas caused by anthropogenic 

air pollution by reducing anthropogenic 

emissions that cause regional haze. The 

national goal is a return to natural 

conditions, i.e., anthropogenic sources 

of air pollution would no longer impair 

visibility in Class I areas. 

To track changes in visibility over 

time at each of the 156 Class I areas 

covered by the visibility program (40 

CFR 81.401–437), and as part of the 

process for determining reasonable 

progress, states must calculate the 

degree of existing visibility impairment 

at each Class I area at the time of each 

regional haze SIP submittal and 

periodically review progress every five 

years midway through each 10-year 

implementation period. To do this, the 

RHR requires states to determine the 

degree of impairment (in deciviews) for 

the average of the 20 percent least 

impaired (‘‘best’’) and 20 percent most 

impaired (‘‘worst’’) visibility days over 

a specified time period at each of their 

Class I areas. In addition, states must 

also develop an estimate of natural 

visibility conditions for the purpose of 

comparing progress toward the national 

goal. Natural visibility is determined by 

estimating the natural concentrations of 

pollutants that cause visibility 

impairment and then calculating total 

light extinction based on those 

estimates. We have provided guidance 

to states regarding how to calculate 

baseline, natural and current visibility 

conditions.9

For the first regional haze SIPs that 

were due by December 17, 2007, 

‘‘baseline visibility conditions’’ were the 

starting points for assessing ‘‘current’’ 

visibility impairment. Baseline visibility 

conditions represent the degree of 

visibility impairment for the 20 percent 

least impaired days and 20 percent most 

impaired days for each calendar year 

from 2000 to 2004. Using monitoring 

data for 2000 through 2004, states are 

required to calculate the average degree 

of visibility impairment for each Class I 

area, based on the average of annual 

values over the five-year period. The 

comparison of initial baseline visibility 

conditions to natural visibility 

conditions indicates the amount of 

improvement necessary to attain natural 

visibility, while the future comparison 

of baseline conditions to the then 

current conditions will indicate the 

amount of progress made. In general, the 

2000–2004 baseline period is 

considered the time from which 

improvement in visibility is measured. 

iii. Determination of Reasonable 

Progress Goals 

The vehicle for ensuring continuing 

progress towards achieving the natural 

visibility goal is the submission of a 

series of regional haze SIPs from the 

states that establish two RPGs (i.e., two 

distinct goals, one for the ‘‘best’’ and 

one for the ‘‘worst’’ days) for every Class 

I area for each (approximately) 10-year 

implementation period. See 40 CFR 

51.308(d), (f). The RHR does not 

mandate specific milestones or rates of 

progress, but instead calls for states to 

establish goals that provide for 

‘‘reasonable progress’’ toward achieving 

natural visibility conditions. In setting 

RPGs, states must provide for an 

improvement in visibility for the most 

impaired days over the (approximately) 

10-year period of the SIP, and ensure no 

degradation in visibility for the least 

impaired days over the same period. Id. 

In establishing RPGs, states are 

required to consider the following 

factors established in section 169A of 

the CAA and in our RHR at 40 CFR 

51.308(d)(1)(i)(A): (1) The costs of 

compliance; (2) the time necessary for 

compliance; (3) the energy and non-air 

quality environmental impacts of 

compliance; and (4) the remaining 

useful life of any potentially affected 

sources. States must demonstrate in 

their SIPs how these factors are 

considered when selecting the RPGs for 

the best and worst days for each 

applicable Class I area. In setting the 

RPGs, states must also consider the rate 

of progress needed to reach natural 

visibility conditions by 2064 (referred to 

as the ‘‘uniform rate of progress’’ (URP) 

or the ‘‘glidepath’’) and the emission 

reduction measures needed to achieve 

that rate of progress over the 10-year 

period of the SIP. Uniform progress 

towards achievement of natural 

conditions by the year 2064 represents 

a rate of progress, which states are to 

use for analytical comparison to the 

amount of progress they expect to 

achieve. In setting RPGs, each state with 

one or more Class I areas (‘‘Class I 

state’’) must also consult with 

potentially ‘‘contributing states,’’ i.e., 

other nearby states with emission 

sources that may be affecting visibility 

impairment at the state’s Class I areas. 

40 CFR 51.308(d)(1)(iv). In determining 

whether a state’s goals for visibility 

improvement provide for reasonable 

progress toward natural visibility 

conditions, EPA is required to evaluate 

the demonstrations developed by the 

state pursuant to paragraphs 40 CFR 

51.308(d)(1)(i) and (d)(1)(ii). 40 CFR 

51.308(d)(1)(iii). 

iv. Best Available Retrofit Technology 

Section 169A of the CAA directs 

states to evaluate the use of retrofit 

controls at certain larger, often 

uncontrolled, older stationary sources in 

order to address visibility impacts from 

these sources. Specifically, section 

169A(b)(2)(A) of the CAA requires states 

to revise their SIPs to contain such 

measures as may be necessary to make 

reasonable progress towards the natural 

visibility goal, including a requirement 

that certain categories of existing major 

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5036 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

10The set of ‘‘major stationary sources’’ 

potentially subject-to-BART is listed in CAA section 

169A(g)(7). 

11BART-eligible sources are those sources that 

have the potential to emit 250 tons or more of a 

visibility-impairing air pollutant, were not in 

operation prior to August 7, 1962, but were in 

existence on August 7, 1977, and whose operations 

fall within one or more of 26 specifically listed 

source categories. 40 CFR 51.301. 

stationary sources10 built between 1962 

and 1977 procure, install, and operate 

the ‘‘Best Available Retrofit 

Technology’’ as determined by the state. 

Under the RHR, states are directed to 

conduct BART determinations for such 

‘‘BART-eligible’’ sources that may be 

anticipated to cause or contribute to any 

visibility impairment in a Class I area. 

Rather than requiring source-specific 

BART controls, states also have the 

flexibility to adopt an emissions trading 

program or other alternative program as 

long as the alternative provides greater 

reasonable progress towards improving 

visibility than BART. 

On July 6, 2005, EPA published the 

Guidelines for BART Determinations 

Under the Regional Haze Rule at 

appendix Y to 40 CFR part 51 

(hereinafter referred to as the ‘‘BART 

Guidelines’’) to assist states in 

determining which of their sources 

should be subject to the BART 

requirements and in determining 

appropriate emission limits for each 

applicable source. 70 FR 39104. In 

making a BART determination for a 

fossil fuel-fired electric generating plant 

with a total generating capacity in 

excess of 750 megawatts (MW), a state 

must use the approach set forth in the 

BART Guidelines. Generally, a state is 

encouraged, but not required, to follow 

the BART Guidelines in making BART 

determinations for other types of 

sources. Regardless of source size or 

type, a state must meet the requirements 

of the CAA and our regulations for 

selection of BART, and the state’s BART 

analysis and determination must be 

reasonable in light of the overarching 

purpose of the regional haze program. 

The process of establishing BART 

emission limitations can be logically 

broken down into three steps: First, 

states identify those sources which meet 

the definition of ‘‘BART-eligible source’’ 

set forth in 40 CFR 51.301; 11 second, 

states determine which of such sources 

‘‘emits any air pollutant which may 

reasonably be anticipated to cause or 

contribute to any impairment of 

visibility in any such area’’ (a source 

which fits this description is ‘‘subject to 

BART’’); and third, for each source 

subject-to-BART, states then identify the 

best available type and level of control 

for reducing emissions. 

States must address all visibilityimpairing pollutants emitted by a source 

in the BART determination process. The 

most significant visibility impairing 

pollutants are SO2, NOX, and PM. EPA 

has stated that states should use their 

best judgment in determining whether 

VOC or NH3 emissions impair visibility 

in Class I areas. 

Under the BART Guidelines, states 

may select an exemption threshold 

value for their BART modeling, below 

which a BART-eligible source would 

not be expected to cause or contribute 

to visibility impairment in any Class I 

area. The state must document this 

exemption threshold value in the SIP 

and must state the basis for its selection 

of that value. Any source with 

emissions that model above the 

threshold value would be subject to a 

BART determination review. The BART 

Guidelines acknowledge varying 

circumstances affecting different Class I 

areas. States should consider the 

number of emission sources affecting 

the Class I areas at issue and the 

magnitude of the individual sources’ 

impacts. Any exemption threshold set 

by the state should not be higher than 

0.5 deciview. 40 CFR part 51, appendix 

Y, section III.A.1. 

In their SIPs, states must identify the 

sources that are subject-to-BART and 

document their BART control 

determination analyses for such sources. 

In making their BART determinations, 

section 169A(g)(2) of the CAA requires 

that states consider the following factors 

when evaluating potential control 

technologies: (1) The costs of 

compliance; (2) the energy and non-air 

quality environmental impacts of 

compliance; (3) any existing pollution 

control technology in use at the source; 

(4) the remaining useful life of the 

source; and (5) the degree of 

improvement in visibility which may 

reasonably be anticipated to result from 

the use of such technology. 

A regional haze SIP must include 

source-specific BART emission limits 

and compliance schedules for each 

source subject-to-BART. Once a state 

has made its BART determination, the 

BART controls must be installed and in 

operation as expeditiously as 

practicable, but no later than five years 

after the date of EPA approval of the 

regional haze SIP. CAA section 169(g)(4) 

and 40 CFR 51.308(e)(1)(iv). In addition 

to what is required by the RHR, general 

SIP requirements mandate that the SIP 

must also include all regulatory 

requirements related to monitoring, 

recordkeeping, and reporting for the 

BART controls on the source. See e.g. 

CAA section 110(a). As noted above, the 

RHR allows states to implement an 

alternative program in lieu of BART so 

long as the alternative program can be 

demonstrated to achieve greater 

reasonable progress toward the national 

visibility goal than would BART. 

v. Long-Term Strategy 

Consistent with the requirement in 

section 169A(b) of the CAA that states 

include in their regional haze SIP a 10 

to 15-year strategy for making 

reasonable progress, section 51.308(d)(3) 

of the RHR requires that states include 

a LTS in their regional haze SIPs. The 

LTS is the compilation of all control 

measures a state will use during the 

implementation period of the specific 

SIP submittal to meet applicable RPGs. 

The LTS must include ‘‘enforceable 

emissions limitations, compliance 

schedules, and other measures as 

necessary to achieve the reasonable 

progress goals’’ for all Class I areas 

within, or affected by emissions from, 

the state. 40 CFR 51.308(d)(3). 

When a state’s emissions are 

reasonably anticipated to cause or 

contribute to visibility impairment in a 

Class I area located in another state, the 

RHR requires the impacted state to 

coordinate with the contributing states 

in order to develop coordinated 

emissions management strategies. 40 

CFR 51.308(d)(3)(i). In such cases, the 

contributing state must demonstrate that 

it has included, in its SIP, all measures 

necessary to obtain its share of the 

emission reductions needed to meet the 

RPGs for the Class I area. Id. at (d)(3)(ii). 

The RPOs have provided forums for 

significant interstate consultation, but 

additional consultations between states 

may be required to sufficiently address 

interstate visibility issues. This is 

especially true where two states belong 

to different RPOs. 

States should consider all types of 

anthropogenic sources of visibility 

impairment in developing their longterm strategy, including stationary, 

minor, mobile, and area sources. At a 

minimum, states must describe how 

each of the following seven factors 

listed below are taken into account in 

developing their LTS: (1) Emission 

reductions due to ongoing air pollution 

control programs, including measures to 

address RAVI; (2) measures to mitigate 

the impacts of construction activities; 

(3) emissions limitations and schedules 

for compliance to achieve the RPG; (4) 

source retirement and replacement 

schedules; (5) smoke management 

techniques for agricultural and forestry 

management purposes including plans 

as currently exist within the state for 

these purposes; (6) enforceability of 

emissions limitations and control 

measures; and (7) the anticipated net 

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Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 5037 

12On May 15, 2012 the EPA signed the first 

proposed rule on the Wyoming Regional Haze SIP 

which proposed to partially approve and partially 

disapprove the Wyoming state plan. The EPA 

published the proposed rule in the Federal Register 

for public comment on June 4, 2012. This public 

Federal Register notice may be found at 77 FR 

33022 (June 4, 2012). EPA then obtained an 

extension to the Consent Decree deadline in order 

to re-propose the Wyoming regional haze plan 

based on data generated after the conclusion of the 

original comment period. In this document, all 

references to ‘‘proposal’’ or ‘‘proposal notice’’ refer 

to the notice published on June 10, 2013 unless 

otherwise stated. 

13E.g., 78 FR 34777. The proposed notice also 

explained that ‘‘[t]he Agency will take the 

comments and testimony received, as well as any 

further SIP revisions submitted by the State, into 

consideration in our final promulgation. 

Supplemental information received may lead the 

Agency to adopt final SIP and/or FIP regulations 

that reflect a different BART control technology 

option, or impact other proposed regulatory 

provisions, which differ from this proposal.’’ 78 FR 

34777. 

effect on visibility due to projected 

changes in point, area, and mobile 

source emissions over the period 

addressed by the LTS. 40 CFR 

51.308(d)(3)(v). 

vi. Coordinating Regional Haze and 

Reasonably Attributable Visibility 

Impairment 

As part of the RHR, EPA revised 40 

CFR 51.306(c) regarding the LTS for 

RAVI to require that the RAVI plan must 

provide for a periodic review and SIP 

revision not less frequently than every 

three years until the date of submission 

of the state’s first plan addressing 

regional haze visibility impairment, 

which was due December 17, 2007, in 

accordance with 40 CFR 51.308(b) and 

(c). On or before this date, the state must 

revise its plan to provide for review and 

revision of a coordinated LTS for 

addressing RAVI and regional haze, and 

the state must submit the first such 

coordinated LTS with its first regional 

haze SIP. Future coordinated LTS’s, and 

periodic progress reports evaluating 

progress towards RPGs, must be 

submitted consistent with the schedule 

for SIP submission and periodic 

progress reports set forth in 40 CFR 

51.308(f) and 51.308(g), respectively. 

The periodic review of a state’s LTS 

must report on both regional haze and 

RAVI impairment and must be 

submitted to EPA as a SIP revision. 

vii. Monitoring Strategy and Other 

Implementation Plan Requirements 

Section 51.308(d)(4) of the RHR 

includes the requirement for a 

monitoring strategy for measuring, 

characterizing, and reporting of regional 

haze visibility impairment that is 

representative of all mandatory Class I 

Federal areas within the state. The 

strategy must be coordinated with the 

monitoring strategy required in section 

51.305 for RAVI. Compliance with this 

requirement may be met through 

‘‘participation’’ in the IMPROVE 

network, i.e., review and use of 

monitoring data from the network. The 

monitoring strategy is due with the first 

regional haze SIP, and it must be 

reviewed every five years. The 

monitoring strategy must also provide 

for additional monitoring sites if the 

IMPROVE network is not sufficient to 

determine whether RPGs will be met. 

The SIP must also provide for the 

following: 

• Procedures for using monitoring 

data and other information in a state 

with mandatory Class I areas to 

determine the contribution of emissions 

from within the state to regional haze 

visibility impairment at Class I areas 

both within and outside the state; 

• Procedures for using monitoring 

data and other information in a state 

with no mandatory Class I areas to 

determine the contribution of emissions 

from within the state to regional haze 

visibility impairment at Class I areas in 

other states; 

• Reporting of all visibility 

monitoring data to the Administrator at 

least annually for each Class I area in 

the state, and where possible, in 

electronic format; 

• Developing a statewide inventory of 

emissions of pollutants that are 

reasonably anticipated to cause or 

contribute to visibility impairment in 

any Class I area. The inventory must 

include emissions for a baseline year, 

emissions for the most recent year for 

which data are available, and estimates 

of future projected emissions. A state 

must also make a commitment to update 

the inventory periodically; and 

• Other elements, including 

reporting, recordkeeping, and other 

measures necessary to assess and report 

on visibility. 

The RHR requires control strategies to 

cover an initial implementation period 

extending to the year 2018, with a 

comprehensive reassessment and 

revision of those strategies, as 

appropriate, every 10 years thereafter. 

Periodic SIP revisions must meet the 

core requirements of section 51.308(d) 

with the exception of BART. The 

requirement to evaluate sources for 

BART applies only to the first regional 

haze SIP. Facilities subject-to-BART 

must continue to comply with the BART 

provisions of section 51.308(e), as noted 

above. Periodic SIP revisions will assure 

that the statutory requirement of 

reasonable progress will continue to be 

met. 

viii. Consultation With States and 

Federal Land Managers (FLMs) 

The RHR requires that states consult 

with FLMs before adopting and 

submitting their SIPs. 40 CFR 51.308(i). 

States must provide FLMs an 

opportunity for consultation, in person 

and at least 60 days prior to holding any 

public hearing on the SIP. This 

consultation must include the 

opportunity for the FLMs to discuss 

their assessment of impairment of 

visibility in any Class I area and to offer 

recommendations on the development 

of the RPGs and on the development 

and implementation of strategies to 

address visibility impairment. Further, a 

state must include in its SIP a 

description of how it addressed any 

comments provided by the FLMs. 

Finally, a SIP must provide procedures 

for continuing consultation between the 

state and FLMs regarding the state’s 

visibility protection program, including 

development and review of SIP 

revisions, five-year progress reports, and 

the implementation of other programs 

having the potential to contribute to 

impairment of visibility in Class I areas. 

C. Our Proposal 

We signed our notice of proposed 

rulemaking on May 23, 2013,12 and it 

was published in the Federal Register 

on June 10, 2013 (78 FR 34738). In our 

2013 proposal, we proposed to approve 

many of Wyoming’s regional haze SIP, 

including the State’s identification of its 

BART sources, its identification of those 

BART sources that may be anticipated 

to cause or contribute to visibility 

impairment, and the State’s BART 

determinations for PM. Because of 

deficiencies in Wyoming’s NOX BART 

analyses, however, we proposed to 

disapprove the NOX BART emissions 

limitations for a number of sources, as 

well as the reasonable progress goals 

and long-term strategy. We proposed to 

address the NOX BART requirements for 

these sources and the other deficiencies 

in the Wyoming plan in a FIP, based on 

our analysis of the relevant factors. For 

several BART sources we also asked in 

the proposed rulemaking if interested 

parties had additional information 

regarding the BART factors and EPA’s 

proposed determinations, for example 

our weighing of average costs, 

incremental costs, visibility 

improvement, and timing of installation 

of such controls, and in light of such 

information, whether the interested 

parties thought the Agency should 

consider another BART control 

technology option that could be 

finalized either instead of, or in 

conjunction with, BART as proposed.13

In our 2013 proposal we proposed to 

disapprove the following: 

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5038 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

• The State’s nitrogen oxides (NOX)

best available retrofit technology 

(BART) determinations for PacifiCorp 

Dave Johnston Units 3 and 4, PacifiCorp 

Naughton Units 1 and 2, PacifiCorp 

Wyodak Unit 1, and Basin Electric 

Laramie River Units 1, 2, and 3. 

• The State’s NOX reasonable 

progress determinations for PacifiCorp 

Dave Johnston Units 1 and 2. 

• Wyoming’s reasonable progress 

goals (RPGs). 

• The State’s monitoring, 

recordkeeping, and reporting 

requirements in Chapter 6.4 of the SIP. 

• Portions of the State’s long-term 

strategy (LTS) that rely on or reflect 

other aspects of the regional haze SIP 

that we are disapproving. 

• The provisions necessary to meet 

the requirements for the coordination of 

the review of the reasonably attributable 

visibility impairment (RAVI) and the 

regional haze LTS. 

We proposed the promulgation of a 

FIP to address the deficiencies in the 

Wyoming regional haze SIP that we 

identified in the proposed notice. The 

proposed FIP included the following 

elements: 

• NOX BART determinations and 

limits for PacifiCorp Dave Johnston 

Units 3 and 4, PacifiCorp Naughton 

Units 1 and 2, PacifiCorp Wyodak Unit 

1, and Basin Electric Laramie River 

Units 1, 2, and 3. 

• NOX reasonable progress 

determinations and limits for PacifiCorp 

Dave Johnston Units 1 and 2. 

• RPGs consistent with the SIP limits 

proposed for approval and the proposed 

FIP limits. 

• Monitoring, recordkeeping, and 

reporting requirements applicable to all 

BART and reasonable progress sources 

for which there is a SIP or FIP emissions 

limit. 

• LTS elements pertaining to 

emission limits and compliance 

schedules for the proposed BART and 

reasonable progress FIP emission limits. 

• Provisions to ensure the 

coordination of the RAVI and regional 

haze LTS. 

We also requested comment on an 

alternative proposal, related to the 

State’s NOX BART determinations, for 

PacifiCorp Jim Bridger Units 1 and 2, 

that would involve disapproval and the 

promulgation of a FIP. 

D. Public Participation 

We requested comments on all 

aspects of our proposed action. In our 

proposed rulemaking, we provided a 60- 

day comment period, with the comment 

period closing on August 9, 2013. We 

also held a public hearing on June 24, 

2013, in Cheyenne, Wyoming. We 

received requests from Wyoming’s 

governor, congressional delegation, and 

Department of Environmental Quality 

(DEQ), among others, for additional 

public hearings and an extended public 

comment period. As a result, we held 

two more public hearings. We held a 

hearing on July 17, 2013, in Cheyenne, 

Wyoming, and on July 26, 2013, in 

Casper, Wyoming. We also extended the 

comment period to August 26, 2013. We 

provided public notice of the additional 

hearings and extension of the public 

comment period on July 8, 2013. 78 FR 

40654. 

II. Final Action 

Based upon comments received on 

our proposed action, in this final action 

we are partially approving and partially 

disapproving Wyoming’s regional haze 

SIP submitted on January 12, 2011. We 

are approving the majority of the State’s 

regional haze determinations. For the 

fifteen coal fired power plant units in 

Wyoming subject to the regional haze 

requirements, we are approving the 

State’s NOX emission control technology 

decisions for 10 of those units. We are 

also approving the State’s plan for the 

non-power plant facilities subject to 

regional haze requirements and the 

State’s plan for control of PM. We are 

approving all aspects of Wyoming’s SIP, 

except for the following elements which 

we are disapproving: 

• The State’s NOX BART 

determinations for PacifiCorp Dave 

Johnston Unit 3, PacifiCorp Wyodak 

Unit 1, and Basin Electric Laramie River 

Units 1, 2, and 3. 

• Wyoming’s RPGs. 

• The State’s monitoring, 

recordkeeping, and reporting 

requirements in Chapter 6.4 of the SIP. 

• Portions of the State’s LTS that rely 

on or reflect other aspects of the 

regional haze SIP that we are 

disapproving. 

• The provisions necessary to meet 

the requirements for the coordination of 

the review of the RAVI and the regional 

haze LTS. 

The final FIP includes the following 

elements: 

• NOX BART determinations and 

emission limits for PacifiCorp Dave 

Johnston Unit 3, Wyodak Unit 1, and 

Basin Electric Laramie River Units 1, 2, 

and 3. 

• RPGs consistent with the SIP 

emission limits finalized for approval 

and the finalized FIP emission limits. 

• Monitoring, recordkeeping, and 

reporting requirements applicable to all 

BART sources for which there is a SIP 

or FIP emissions limit. 

• LTS elements pertaining to 

emission limits and compliance 

schedules for the finalized FIP emission 

limits. 

• Provisions to ensure the 

coordination of the RAVI and regional 

haze LTS. 

Although we are promulgating a 

Federal plan, a state may always submit 

a new regional haze SIP to EPA for 

review and we would welcome such a 

submission. The CAA requires EPA to 

take action on such a SIP submittal that 

is determined to be complete within 12 

months. If the State were to submit a 

revision meeting the requirements of the 

CAA and the regional haze regulations, 

we would propose approval of the 

State’s plan as expeditiously as 

practicable. We are mindful of the costs 

of our final action but have considered 

the costs and visibility improvement 

that other states and EPA have required 

for BART controls. 

Table 1 shows the NOX BART control 

technologies, associated cost, and 

emission reductions for each source that 

is subject to the FIP. 

TABLE 1—CONTROL TECHNOLOGIES, COSTS, EMISSION LIMITS, AND COST EFFECTIVENESS FOR SOURCES SUBJECT TO

THE FIP 

Source Technology * 

Emission 

limit—lb/MMBtu 

(30-day rolling 

average) 

Total capital cost 

($) 

Total annualized 

cost 

($) 

Average costeffectiveness 

($/ton) 

Dave Johnston 

Unit 3.

New low-NOX burners (LNBs) with 

overfire air (OFA) and shut down in 

2027; or new LNBs with OFA and 

selective catalytic reduction 

(SCR) **.

0.28 (for LNBs 

with OFA).

$15,976,696 (for 

LNBs with OFA).

$1,828,137 (for 

LNBs with OFA).

$644 (for LNBs 

with OFA). 

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Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 5039 

14Andover Technology Partners, ‘‘Cost of NOX

Controls on Wyoming EGUs’’, October 28, 2013; 

Wyoming EGU BART and Reasonable Progress 

Costs—10/28/2013; Wyoming EGU BART and 

Reasonable Progress Costs for Jim Bridger—10/28/ 

2013. 

15Air Quality Modeling Protocol: Wyoming 

Regional Haze Federal Implementation Plan, U.S. 

EPA, January, 2014. 

TABLE 1—CONTROL TECHNOLOGIES, COSTS, EMISSION LIMITS, AND COST EFFECTIVENESS FOR SOURCES SUBJECT TO

THE FIP—Continued 

Source Technology * 

Emission 

limit—lb/MMBtu 

(30-day rolling 

average) 

Total capital cost 

($) 

Total annualized 

cost 

($) 

Average costeffectiveness 

($/ton) 

Laramie River Unit 

1.

New LNBs/OFA and SCR .................. 0.07 ...................... $180,254,572 ....... $21,770,134 ......... $4,461. 

Laramie River Unit 

2.

New LNBs with OFA and SCR .......... 0.07 ...................... $188,826,333 ....... $22,691,467 ......... $4,424. 

Laramie River Unit 

3.

New LNBs with OFA and SCR .......... 0.07 ...................... $188,437,953 ....... $22,666,982 ......... $4,375. 

Wyodak Unit 1 ...... New LNBs with OFA and SCR .......... 0.07 ...................... $119,501,862 ....... $12,714,153 ......... $4,036. 

*The technology listed is the technology evaluated as BART, but sources can choose to use another technology or combination of technologies to meet established limits. **As used in this and the following tables, ‘‘new’’ means replacing the control technology that was in place at the time of the State’s BART 

analyses in May 2009 with new control technology, most of which was installed post-2009. 

III. Changes From Proposed Rule and 

Reasons for Changes 

A. Changes to Proposed Costs and 

Visibility Improvements 

As described in this section and 

elsewhere in today’s final rule, we have 

revised our cost of compliance analysis 

and visibility improvement modeling 

from our June 10, 2013 proposed action 

for all of the BART and reasonable 

progress electric generating units 

(EGUs). 

EPA revised the cost analyses from 

those found in the proposed rule based 

upon input from various commenters. 

Some of factors that caused us to revise 

our cost estimates included accounting 

for site elevation in the SCR capital cost, 

change in SCR reagent to anhydrous 

ammonia from urea, change in auxiliary 

electrical cost from market price to 

generating cost, change in urea SNCR 

chemical utilization for some units due 

to high furnace temperatures, and 

consideration of shorter plant lifetimes 

in some instances. In addition, EPA 

incorporated some of the costs provided 

by commenters in their site specific cost 

estimates where we found those costs to 

be sufficiently supported. Per EPA’s 

Control Cost Manual (CCM), use of site 

specific cost estimates is preferable to 

the use of generalized costs where those 

site specific costs can be supported and 

are appropriate. 

EPA addressed comments on the 

visibility improvement modeling in the 

proposed rule by developing a new 

protocol that makes several 

improvements in the modeling, 

including the use of the current 

regulatory version of the CALPUFF 

model (version 5.8), the use of an 

improved method to assess the effects of 

pollutants on light scattering and 

visibility impairment (Method 8), the 

use of lower background ammonia 

concentrations, and the use of an 

ammonia limiting correction for BART 

sources with multiple units. In 

particular, we have used new values for 

ammonia background that reflect robust 

monitoring data and the appropriate 

default concentrations for the geography 

in the state. 

The results of our revised cost 

analysis, along with the revised 

visibility impacts, are presented in 

Tables 2 through 17 below and 

summarized for each source below the 

set of tables for that source. Details 

regarding our revised cost analysis and 

visibility improvement modeling can be 

found in the docket.14 15

TABLE 2—SUMMARY OF EPA’S LARAMIE RIVER UNIT 1 NOX BART ANALYSIS

Control technology 

Emission rate 

(lb/MMBtu; 

annual 

average) 

Emission 

reduction 

(tpy) 

Annualized 

costs 

Average cost 

effectiveness 

($/ton) 

Incremental 

cost 

effectiveness 

($/ton) 

Visibility 

improvement 

(Delta 

deciview for 

the maximum 

98th percentile 

impact at 

Badlands 

National Park) 

New LNBs with OFA ................................................................. 0.19 1,556 $2,268,806 $1,458 ........................ 0.18 

New LNBs with OFA and selective non-catalytic reduction 

(SNCR) .................................................................................. 0.15 2,445 8,554,896 3,485 $6,993 0.28 

New LNBs with OFA and SCR ................................................. 0.05 4,880 21,770,134 4,461 5,449 0.57 

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5040 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

TABLE 3—SUMMARY OF EPA’S LARAMIE RIVER UNIT 2 NOX BART ANALYSIS

Control technology 

Emission rate 

(lb/MMBtu; 

annual 

average) 

Emission 

reduction 

(tpy) 

Annualized 

costs 

Average cost 

effectiveness 

($/ton) 

Incremental 

cost 

effectiveness 

($/ton) 

Visibility 

improvement 

(Delta 

deciview for 

the maximum 

98th percentile 

impact at 

Badlands 

National Park) 

New LNBs with OFA ................................................................. 0.19 1823 $2,268,806 $1,244 ........................ 0.18 

New LNBs with OFA and SNCR .............................................. 0.15 2,717 8,531,631 3,140 $7,006 0.27 

New LNBs with OFA and SCR ................................................. 0.05 5,129 22,691,467 4,424 5,871 0.53 

TABLE 4—SUMMARY OF EPA’S LARAMIE RIVER UNIT 3 NOX BART ANALYSIS

Control technology 

Emission rate 

(lb/MMBtu; 

annual 

average) 

Emission 

reduction 

(tpy) 

Annualized 

costs 

Average cost 

effectiveness 

($/ton) 

Incremental 

cost 

effectiveness 

($/ton) 

Visibility 

improvement 

(Delta 

deciview for 

the maximum 

98th percentile 

impact at 

Badlands 

National Park) 

New LNBs with OFA ................................................................. 0.19 1789 $2,268,806 $1,268 ........................ 0.18 

New LNBs with OFA and SNCR .............................................. 0.15 2,706 8,643,839 3,194 $6,951 0.27 

New LNBs with OFA and SCR ................................................. 0.05 5,181 22,666,982 4,375 5,667 0.52 

EPA’s January 2014 modeling 

protocol, Appendix H, shows the model 

predicted visibility improvement for 

each emissions control technology at 

each of the Class I areas that we 

modeled in our analysis. For Laramie 

River we modeled visibility impairment 

at Badlands National Park, Wind Cave 

National Park, Rawah Wilderness Area, 

and Rocky Mountain National Park. At 

Laramie River Unit 1 the model 

visibility improvements with LNB/OFA/ 

SCR were 0.57 deciviews at Badlands 

National Park, 0.47 deciviews at Wind 

Cave National Park, 0.25 deciviews at 

Rawah Wilderness Area, and 0.39 at 

Rocky Mountain National Park. At 

Laramie River Unit 2 the model 

visibility improvements with LNB/OFA/ 

SCR were 0.53 deciviews at Badlands, 

0.43 deciviews at Wind Cave, 0.26 

deciviews at Rawah, and 0.31 at Rocky 

Mountain. At Laramie River Unit 3 the 

model visibility improvements with 

LNB/OFA/SCR were 0.52 deciviews at 

Badlands, 0.44 deciviews at Wind Cave, 

0.23 deciviews at Rawah, and 0.28 at 

Rocky Mountain. 

TABLE 5—SUMMARY OF EPA’S JIM BRIDGER UNIT 1 NOX BART ANALYSIS

Control technology 

Emission rate 

(lb/MMBtu; 

annual 

average) 

Emission 

reduction 

(tpy) 

Annualized 

costs 

Average cost 

effectiveness 

($/ton) 

Incremental 

cost 

effectiveness 

($/ton) 

Visibility 

improvement 

(Delta 

deciview for 

the maximum 

98th percentile 

impact at 

Bridger 

Wilderness 

Area) ** 

New LNBs with SOFA ............................................................... 0.18 4,558 $1,167,297 $256 ........................ 0.17/0.23 

New LNBs with SOFA and SNCR ............................................ 0.14 5,332 4,330,052 812 $4,088 0.20/0.27 

New LNBs with SOFA and SCR ............................................... 0.05 7,352 19,372,105 2,635 7,447 0.27/0.37 

* Values shown are model results using ammonia based on monitoring and default data; values in straight font are model results using a monitored monthly varying 

concentration/values in italics are model results using an IWAQM default 0.5 ppb background ammonia. 

TABLE 6—SUMMARY OF EPA’S JIM BRIDGER UNIT 2 NOX BART ANALYSIS

Control technology 

Emission rate 

(lb/MMBtu; 

annual 

average) 

Emission 

reduction 

(tpy) 

Annualized 

costs 

Average cost 

effectiveness 

($/ton) 

Incremental 

cost 

effectiveness 

($/ton) 

Visibility 

improvement 

(Delta 

deciview for 

the maximum 

98th percentile 

impact at 

Bridger 

Wilderness 

Area) * 

New LNBs with SOFA ............................................................... 0.19 3,787 $1,167,297 $308 ........................ 0.16/0.21 

New LNBs with SOFA and SNCR ............................................ 0.15 4,545 4,291,184 944 $4,122 0.19/0.25 

New LNBs with SOFA and SCR ............................................... 0.05 6,554 22,307,492 3,403 8,968 0.27/0.36 

* Values shown are model results using ammonia based on monitoring and default data; values in straight font are model results using a monitored monthly varying 

concentration/values in italics are model results using an IWAQM default 0.5 ppb background ammonia. 

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TABLE 7—SUMMARY OF EPA’S JIM BRIDGER UNIT 3 NOX BART ANALYSIS

Control technology 

Emission rate 

(lb/MMBtu; 

annual 

average) 

Emission 

reduction 

(tpy) 

Annualized 

costs 

Average cost 

effectiveness 

($/ton) 

Incremental 

cost 

effectiveness 

($/ton) 

Visibility 

improvement 

(Delta 

deciview for 

the maximum 

98th percentile 

impact at 

Bridger 

Wilderness 

Area) * 

New LNBs with SOFA ............................................................... 0.20 3,710 $1,167,297 $315 ........................ 0.14/0.19 

New LNBs with SOFA and SNCR ............................................ 0.16 4,539 4,458,776 982 $3,972 0.17/0.23 

New LNBs with SOFA and SCR ............................................... 0.05 6,799 22,573,920 3,320 8,015 0.26/0.35 

* Values shown are model results using ammonia based on monitoring and default data; values in straight font are model results using a monitored monthly varying 

concentration/values in italics are model results using an IWAQM default 0.5 ppb background ammonia. 

TABLE 8—SUMMARY OF EPA’S JIM BRIDGER UNIT 4 NOX BART ANALYSIS

Control technology 

Emission rate 

(lb/MMBtu; 

annual 

average) 

Emission 

reduction 

(tpy) 

Annualized 

costs 

Average cost 

effectiveness 

($/ton) 

Incremental 

cost 

effectiveness 

($/ton) 

Visibility 

improvement 

(Delta 

deciview for 

the maximum 

98th percentile 

impact at 

Rawah 

Wilderness 

Area) * 

New LNBs with SOFA ............................................................... 0.19 4,161 $1,167,297 $281 ........................ 0.25/0.23 

New LNBs with SOFA and SNCR ............................................ 0.15 4,956 4,372,457 882 $4,035 0.30/0.28 

New LNBs with SOFA and SCR ............................................... 0.05 7,108 19,494,417 2,743 7,027 0.45/0.42 

* Values shown are model results using ammonia based on monitoring and default data; values in straight font are model results using a monitored monthly varying 

concentration/values in italics are model results using an IWAQM default 0.5 ppb background ammonia. 

EPA’s January 2014 modeling 

protocol, Appendix H, shows the model 

predicted visibility improvement for 

each emissions control technology at 

each of the Class I areas that we 

modeled in our analysis of Jim Bridger. 

Model simulations were performed 

using a monthly varying background 

ammonia concentration and using the 

IWAQM default concentration for 

forested areas of 0.5 ppb. For Jim 

Bridger we modeled visibility 

impairment at Bridger Wilderness Area, 

Fitzpatrick Wilderness Area, Mt Zirkel 

Wilderness Area, Rawah Wilderness 

Area, Rocky Mountain National Park, 

Grand Teton National Park, Teton 

Wilderness Area, Washakie Wilderness 

Area and Yellowstone National Park. 

Under the State’s LTS, LNB/OFA/SCR 

would be required on Jim Bridger Units 

1 and 2 in 2022 and 2021. Under the 

State’s LTS, LNB/OFA/SCR would be 

required on Jim Bridger Units 3 and 4 

in 2015 and 2016. 

For Jim Bridger Unit 1, using monthly 

varying ammonia concentrations, model 

visibility improvements with LNB/OFA/ 

SCR were: 0.37 deciviews at Bridger; 

0.26 deciviews at Fitzpatrick; 0.29 

deciviews at Mt Zirkel; 0.35deciviews at 

Rawah; 0.36 deciviews at Rocky 

Mountain; 0.17 deciviews at Grand 

Teton; 0.14 deciviews at Teton; 0.19 

deciviews at Washakie; and 0.15 

deciviews at Yellowstone. 

For Jim Bridger Unit 1, using a 

constant 0.5 ppb ammonia 

concentration, model visibility 

improvements with LNB/OFA/SCR 

were: 0.37 deciviews at Bridger; 0.26 

deciviews at Fitzpatrick; 0.29 deciviews 

at Mt Zirkel; 0.35 deciviews at Rawah; 

0.36 deciviews at Rocky Mountain; 0.17 

deciviews at Grand Teton; 0.14 

deciviews at Teton; 0.19 deciviews at 

Washakie; and 0.15 deciviews at 

Yellowstone. 

For Jim Bridger Unit 2, using monthly 

varying ammonia concentrations, model 

visibility improvements with LNB/OFA/ 

SCR were: 0.36 deciviews at Bridger; 

0.26 deciviews at Fitzpatrick; 0.28 

deciviews at Mt Zirkel; 0.35 deciviews 

at Rawah; 0.36 deciviews at Rocky 

Mountain; 0.16 deciviews at Grand 

Teton; 0.14 deciviews at Teton; 0.19 

deciviews at Washakie; and 0.14 

deciviews at Yellowstone. 

For Jim Bridger Unit 2, using a 

constant 0.5 ppb ammonia 

concentration, model visibility 

improvements with LNB/OFA/SCR 

were: 0.36 deciviews at Bridger; 0.26 

deciviews at Fitzpatrick; 0.28 deciviews 

at Mt Zirkel; 0.35 deciviews at Rawah; 

0.36 deciviews at Rocky Mountain; 0.16 

deciviews at Grand Teton; 0.14 

deciviews at Teton; 0.19 deciviews at 

Washakie; and 0.14 deciviews at 

Yellowstone. 

For Jim Bridger Unit 3, using monthly 

varying ammonia concentrations, model 

visibility improvements with LNB/OFA/ 

SCR were: 0.35 deciviews at Bridger; 

0.25 deciviews at Fitzpatrick; 0.28 

deciviews at Mt Zirkel; 0.33 deciviews 

at Rawah; 0.34 deciviews at Rocky 

Mountain; 0.16 deciviews at Grand 

Teton; 0.14 deciviews at Teton; 0.18 

deciviews at Washakie; and 0.14 

deciviews at Yellowstone. 

For Jim Bridger Unit 3, using a 

constant 0.5 ppb ammonia 

concentration, model visibility 

improvements with LNB/OFA/SCR 

were: 0.35 deciviews at Bridger; 0.25 

deciviews at Fitzpatrick; 0.28 deciviews 

at Mt Zirkel; 0.33 deciviews at Rawah; 

0.34 deciviews at Rocky Mountain; 0.16 

deciviews at Grand Teton; 0.14 

deciviews at Teton; 0.18 deciviews at 

Washakie; and 0.14 deciviews at 

Yellowstone. 

For Jim Bridger Unit 4, using monthly 

varying ammonia concentrations, model 

visibility improvements with LNB/OFA/ 

SCR were: 0.38 deciviews at Bridger; 

0.28 deciviews at Fitzpatrick; 0.19 

deciviews at Mt Zirkel; 0.42 deciviews 

at Rawah; 0.38 deciviews at Rocky 

Mountain; 0.32 deciviews at Grand 

Teton; 0.15 deciviews at Teton; 0.30 

deciviews at Washakie; and 0.16 

deciviews at Yellowstone. 

For Jim Bridger Unit 4, using a 

constant 0.5 ppb ammonia 

concentration, model visibility 

improvements with LNB/OFA/SCR 

were: 0.38 deciviews at Bridger; 0.28 

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deciviews at Fitzpatrick; 0.27 deciviews 

at Mt Zirkel; 0.42 deciviews at Rawah; 

0.38 deciviews at Rocky Mountain; 0.32 

deciviews at Grand Teton; 0.15 

deciviews at Teton; 0.30 deciviews at 

Washakie; and 0.16 deciviews at 

Yellowstone. 

TABLE 9—SUMMARY OF EPA’S DAVE JOHNSTON UNIT 3 NOX BART ANALYSIS

[9 Year remaining useful life] 

Control technology 

Emission rate 

(lb/MMBtu; 

annual 

average) 

Emission 

reduction 

(tpy) 

Annualized 

costs 

Average cost 

effectiveness 

($/ton) 

Incremental 

cost 

effectiveness 

($/ton) 

Visibility improvement 

(Delta 

deciview for 

the maximum 

98th percentile 

impact at Wind 

Cave National 

Park) 

New LNBs with OFA ................................ 0.22 2,837 $1,828,137 $644 ........................ 0.33 

New LNBs with OFA and SNCR ............. 0.16 3,356 3,898,930 1,162 $3,988 0.39 

New LNBs with OFA and SCR ................ 0.05 4,433 16,591,006 3,742 11,781 0.51 

TABLE 10—SUMMARY OF EPA’S DAVE JOHNSTON UNIT 3 NOX BART ANALYSIS

[20 Year remaining useful life] 

Control technology 

Emission rate 

(lb/MMBtu; 

annual 

average) 

Emission 

reduction 

(tpy) 

Annualized 

costs 

Average cost 

effectiveness 

($/ton) 

Incremental 

cost 

effectiveness 

($/ton) 

Visibility improvement 

(Delta 

deciview for 

the maximum 

98th percentile 

impact at Wind 

Cave National 

Park) 

New LNBs with OFA ................................ 0.22 2,837 $1,699,807 $599 ........................ 0.33 

New LNBs with OFA and SNCR ............. 0.16 3,356 3,510,589 1,046 $3,488 0.39 

New LNBs with OFA and SCR ................ 0.05 4,433 11,680,144 2,635 7,583 0.51 

TABLE 11—SUMMARY OF EPA’S DAVE JOHNSTON UNIT 4 NOX BART ANALYSIS

Control technology 

Emission rate 

(lb/MMBtu; 

annual 

average) 

Emission 

reduction 

(tpy) 

Annualized 

costs 

Average cost 

effectiveness 

($/ton) 

Incremental 

cost 

effectiveness 

($/ton) 

Visibility improvement 

(Delta 

deciview for 

the maximum 

98th percentile 

impact at Wind 

Cave National 

Park) 

New LNBs with OFA ................................ 0.14 3,114 $767,342 $246 ........................ 0.41 

New LNBs with OFA and SNCR ............. 0.11 3,505 2,541,600 725 $4,535 0.46 

New LNBs with OFA and SCR ................ 0.05 4,377 14,158,899 3,235 13,312 0.57 

EPA’s January 2014 modeling 

protocol, Appendix H, shows the model 

predicted visibility improvement for 

each emissions control technology at 

each of the Class I areas that we 

modeled in our analysis of Dave 

Johnston. For Dave Johnston we 

modeled visibility impairment at 

Badlands National Park, Wind Cave 

National Park, Mt Zirkel Wilderness 

Area, Rawah Wilderness Area, and 

Rocky Mountain National Park. At Dave 

Johnston Unit 3 the model visibility 

improvements with LNB/OFA/SCR 

were 0.47 deciviews at Badlands 

National Park, 0.51 deciviews at Wind 

Cave National Park, 0.20 deciviews at 

Mt Zirkel Wilderness Area, 0.40 

deciviews at Rawah Wilderness Area, 

and 0.28 at Rocky Mountain National 

Park. At Dave Johnston Unit 4 the model 

visibility improvements with LNB/OFA 

were 0.55 deciviews at Badlands 

National Park, 0.57 deciviews at Wind 

Cave National Park, 0.24 deciviews at 

Mt Zirkel Wilderness Area, 0.34 

deciviews at Rawah Wilderness Area, 

and 0.33 deciviews at Rocky Mountain 

National Park. 

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TABLE 12—SUMMARY OF EPA’S NAUGHTON UNIT 1 NOX BART ANALYSIS

Control technology 

Emission 

rate (lb/

MMBtu; 

annual 

average) 

Emission 

reduction 

(tpy) 

Annualized 

costs 

Average cost 

effectiveness 

($/ton) 

Incremental 

cost 

effectiveness 

($/ton) 

Visibility improvement 

(Delta 

deciview for 

the Maximum 

98th percentile 

impact at 

Bridger 

Wilderness 

Area) * 

New LNBs with OFA ................................ 0.21 2,100 $932,466 $444 ........................ 0.22/0.26 

New LNBs with OFA and SNCR ............. 0.16 2,463 2,234,827 907 $3,584 0.26/0.30 

New LNBs with OFA and SCR ................ 0.05 3,209 9,974,616 3,109 10,384 0.33/0.39 

* Values shown are model results using ammonia based on monitoring and default data; values in straight font are model results using a monitored monthly varying concentration/values in italics are model results using an IWAQM default 0.5 ppb background ammonia. 

TABLE 13—SUMMARY OF EPA’S NAUGHTON UNIT 2 NOX BART ANALYSIS

Control technology 

Emission rate 

(lb/MMBtu; 

annual 

average) 

Emission 

reduction 

(tpy) 

Annualized 

costs 

Average cost 

effectiveness 

($/ton) 

Incremental 

cost 

effectiveness 

($/ton) 

Visibility improvement 

(Delta 

deciview for 

the Maximum 

98th percentile 

impact at 

Bridger 

Wilderness 

Area) * 

New LNBs with OFA ................................ 0.21 2,586 $883,900 $342 ........................ 0.28/0.32 

New LNBs with OFA and SNCR ............. 0.16 3,024 2,480,832 820 $3,647 0.34/0.38 

New LNBs with OFA and SCR ................ 0.05 3,922 10,062,750 2,566 8,440 0.42/0.46 

* Values shown are model results using ammonia based on monitoring and default data; values in straight font are model results using a monitored monthly varying concentration/values in italics are model results using an IWAQM default 0.5 ppb background ammonia. 

TABLE 14—SUMMARY OF EPA’S NAUGHTON UNIT 3 NOX BART ANALYSIS

[In lieu of conversion of Naughton Unit 3 to natural gas per PacifiCorp request] 

Control technology 

Emission rate 

(lb/MMBtu; 

annual 

average) 

Emission 

reduction 

(tpy) 

Annualized 

costs 

Average cost 

effectiveness 

($/ton) 

Incremental 

cost 

effectiveness 

($/ton) 

Visibility improvement 

(Delta 

deciview for 

the Maximum 

98th percentile 

impact at 

Bridger 

Wilderness 

Area) * 

Existing LNBs with OFA** ........................ 0.33 442 $106,393 $240 ........................ 0.05/0.07 

Existing LNBs with OFA and SNCR ........ 0.23 1,673 3,852,377 2,303 $3,045 0.20/0.29 

Existing LNBs with OFA and SCR .......... 0.05 3,922 13,604,702 3,469 4,335 0.49/0.60 

* Values shown are model results using ammonia based on monitoring and default data; values in straight font are model results using a monitored monthly varying concentration/values in italics are model results using an IWAQM default 0.5 ppb background ammonia. 

** As used in this table, ‘‘existing’’ means the control technology that was in place at the time of the State’s BART analyses in May 2009. 

EPA’s January 2014 modeling 

protocol, Appendix H, shows the model 

predicted visibility improvement for 

each emissions control technology at 

each of the Class I areas that we 

modeled in our analysis of Naughton. 

For Naughton we modeled visibility 

impairment at Bridger Wilderness Area, 

Fitzpatrick Wilderness Area, North 

Absaroka Wilderness Area, Washakie 

Wilderness Area, Teton Wilderness 

Area, Grand Teton National Park and 

Yellowstone National Park. Model 

simulations were performed using a 

monthly varying background ammonia 

concentration and using the IWAQM 

default concentration for forested areas 

of 0.5 ppb. 

For Naughton Unit 1 model visibility 

improvements, using monthly varying 

ammonia concentrations, with LNB/

OFA and LNB/OFA/SCR were, 

respectively: 0.22 and 0.33 deciviews at 

Bridger; 0.19 and 0.29 deciviews at 

Fitzpatrick; 0.10 and 0.14 at North 

Absaroka; 0.10 and 0.15 deciviews at 

Washakie; 0.10 and 0.16 deciviews at 

Teton; 0.15 and 0.23 deciviews at Grand 

Teton; and 0.12 and 0.18 deciviews at 

Yellowstone. 

For Naughton Unit 1 model visibility 

improvements, using a constant 0.5 ppb 

ammonia concentration, with LNB/OFA 

and LNB/OFA/SCR were, respectively: 

0.26 and 0.39 deciviews at Bridger; 0.22 

and 0.30 deciviews at Fitzpatrick; 0.10 

and 0.14 at North Absaroka; 0.12 and 

0.17 deciviews at Washakie; 0.13 and 

0.19 deciviews at Teton; 0.19 and 0.29 

deciviews at Grand Teton; and 0.13 and 

0.19 deciviews at Yellowstone. 

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For Naughton Unit 2 model visibility 

improvements, using monthly varying 

ammonia concentrations, with LNB/

OFA and LNB/OFA/SCR were, 

respectively: 0.28 and 0.42 deciviews at 

Bridger; 0.25 and 0.36 deciviews at 

Fitzpatrick; 0.12 and 0.17 at North 

Absaroka; 0.15 and 0.22 deciviews at 

Washakie; 0.14 and 0.21 deciviews at 

Teton; 0.18 and 0.28 deciviews at Grand 

Teton; and 0.16 and 0.22 deciviews at 

Yellowstone. 

For Naughton Unit 2 model visibility 

improvements, using a constant 0.5 ppb 

ammonia concentration, with LNB/OFA 

and LNB/OFA/SCR were, respectively: 

0.32 and 0.46 deciviews at Bridger; 0.26 

and 0.38 deciviews at Fitzpatrick; 0.12 

and 0.17 at North Absaroka; 0.16 and 

0.22 deciviews at Washakie; 0.17 and 

0.25 deciviews at Teton; 0.25 and 0.38 

deciviews at Grand Teton; and 0.17 and 

0.24 deciviews at Yellowstone. 

For Naughton Unit 3 model visibility 

improvements, using monthly varying 

ammonia concentrations, with LNB/

OFA and LNB/OFA/SCR were, 

respectively: 0.05 and 0.49 deciviews at 

Bridger; 0.05 and 0.42 deciviews at 

Fitzpatrick; 0.03 and 0.24 at North 

Absaroka; 0.05 and 0.37 deciviews at 

Washakie; 0.04 and 0.38 deciviews at 

Teton; 0.04 and 0.38 deciviews at Grand 

Teton; and 0.04 and 0.39 deciviews at 

Yellowstone. 

For Naughton Unit 3 model visibility 

improvements, using a constant 0.5 ppb 

ammonia concentration, with LNB/OFA 

and LNB/OFA/SCR were, respectively: 

0.07 and 0.60 deciviews at Bridger; 0.05 

and 0.44 deciviews at Fitzpatrick; 0.03 

and 0.24 at North Absaroka; 0. and 0. 

deciviews at Washakie; 0.05 and 0.39 

deciviews at Teton; 0.06 and 0.41 

deciviews at Grand Teton; and 0.05 and 

0.40 deciviews at Yellowstone. 

TABLE 15—SUMMARY OF EPA’S WYODAK NOX BART ANALYSIS

Control technology 

Emission rate 

(lb/MMBtu; 

annual 

average) 

Emission 

reduction 

tpy) 

Annualized 

costs 

Average cost 

effectiveness 

($/ton) 

Incremental 

cost 

effectiveness 

($/ton) 

Visibility improvement 

(delta 

deciview for 

the maximum 

98th percentile 

impact at Wind 

Cave National 

Park) 

New LNBs with OFA ................................................................. 0.19 1,239 $1,272,427 $1,027 ........................ 0.21 

New LNBs with OFA and SNCR .............................................. 0.15 1,914 3,726,573 1,947 3,635 0.32 

New LNBs with OFA and SCR ................................................. 0.05 3,735 15,073,502 4,036 6,233 0.61 

EPA’s January 2014 modeling 

protocol, Appendix H, shows the model 

predicted visibility improvement for 

each emissions control technology at 

each of the Class I areas that we 

modeled in our analysis of Wyodak . For 

Wyodak we modeled visibility 

impairment at Badlands National Park 

and Wind Cave National Park. At 

Wyodak Unit 1 the model visibility 

improvements with LNB/OFA/SCR 

were 0.61 deciviews at Wind Cave and 

0.38 deciviews at Badlands National 

Park. 

TABLE 16—SUMMARY OF EPA’S DAVE JOHNSTON UNIT 1 NOX REASONABLE PROGRESS ANALYSIS

Control technology 

Emission rate 

(lb/MMBtu; 

annual 

average) 

Emission 

reduction 

(tpy) 

Annualized 

costs 

Average cost 

effectiveness 

($/ton) 

Incremental 

cost 

effectiveness 

($/ton) 

Visibility improvement 

(delta 

deciview for 

the maximum 

98th percentile 

impact at Wind 

Cave National 

Park) 

LNBs with OFA * ....................................................................... 0.20 1,226 $1,214,000 $990 ........................ 0.12 

LNBs with OFA and SNCR ....................................................... 0.15 1,466 2,096,430 1,430 3,670 0.14 

LNBs with OFA and SCR ......................................................... 0.05 1,947 6,808,374 3,496 9,798 0.18 

* As used in this and the following tables, control technology that is not preceded by either ‘‘new’’ or ‘‘existing’’ (as in the above tables) means the control technology will be installed for the first time. 

TABLE 17—SUMMARY OF EPA’S DAVE JOHNSTON UNIT 2 NOX REASONABLE PROGRESS ANALYSIS

Control technology 

Emission rate 

(lb/MMBtu; 

annual 

average) 

Emission 

reduction 

(tpy) 

Annualized 

costs 

Average cost 

effectiveness 

($/ton) 

Incremental 

cost effective- ness 

($/ton) 

Visibility improvement 

(delta 

deciview for 

the maximum 

98th percentile 

impact at Wind 

Cave National 

Park) 

LNBs with OFA ......................................................................... 0.20 1,180 $1,441,146 $1,221 ........................ 0.11 

LNBs with OFA and SNCR ....................................................... 0.15 1,425 2,335,022 1,638 3,645 0.14 

LNBs with OFA and SCR ......................................................... 0.05 1,916 7,037,969 3,673 9,588 0.18 

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B. Changes to Our Proposed 

Determinations 

1. Dave Johnston Unit 3 

We proposed to require PacifiCorp 

Dave Johnston Unit 3 to meet a FIP 

emission limit of 0.07 lb/MMBtu (30- 

day rolling average) for NOX BART 

(assumes the installation of LNBs/OFA 

plus SCR). Based on our revised costs of 

compliance and visibility impacts, we 

would still conclude that NOX BART is 

an emission limit of 0.07 lb/MMBtu (30- 

day rolling average). PacifiCorp 

submitted comments on our proposed 

rulemaking on August 26, 2013. In those 

comments, PacifiCorp indicated in 

various places (e.g., page 37) that 

instead of installing SCR, it would shut 

down Dave Johnston Unit 3 in 2027. 

Our regulatory language now provides 

PacifiCorp two alternative paths to 

compliance with the FIP. The first path 

includes a requirement for Dave 

Johnston Unit 3 to cease operation by 

December 31, 2027. For this path, we 

are requiring Dave Johnston Unit 3 to 

meet a FIP limit of 0.28 lb/MMBtu (30- 

day rolling average) no later than five 

years after the date of our final action. 

This emission limit assumes the 

installation of LNBs/OFA. The second 

compliance path gives PacifiCorp the 

option to instead meet a 0.07 lb/MMBtu 

emission limit (assumes installation of 

SCR) within five years of our final 

action with no requirement for shut 

down. 

EPA met with PacifiCorp on October 

31, 2013, to clarify the comments 

submitted by PacifiCorp (see October 

31, 2013 memo to docket). Specifically, 

EPA asked if, in lieu of a requirement 

for SCR, PacifiCorp was asking for EPA 

to include an enforceable requirement 

in the FIP for Dave Johnston Unit 3 to 

shut down in 2027, and for EPA to make 

a BART determination based on that 

limited remaining useful life. PacifiCorp 

confirmed that it did want EPA to 

include an enforceable requirement in 

the FIP for PacifiCorp to shut down 

Dave Johnston Unit 3 by December 31, 

2027, and to make a BART 

determination accordingly. As detailed 

in the following section, we determined 

that if the unit shuts down by December 

31, 2027, SCR would no longer be NOX

BART. 

Generally, EPA does not interpret the 

regional haze rule to provide us with 

authority to make a BART 

determination that requires the 

shutdown of a source. In other states, 

we have approved state-adopted 

requirements for the shutdown of a 

source, which have usually been 

negotiated between the source operator 

and the state, and we have accordingly 

approved BART determinations that 

took into account the resulting shorter 

useful life of the affected source. In the 

case of Dave Johnson Unit 3, the State 

has not submitted a SIP revision to 

require the shutdown that PacifiCorp 

intends to implement, so there is no 

enforceable shutdown commitment that 

we can approve. We believe that 

without an enforceable requirement for 

the shutdown, we cannot make a BART 

determination that reflects the shorter 

planned useful life of the unit. 

Therefore, we are incorporating the 

shutdown requirement into one of the 

two compliance paths available to 

PacifiCorp, in order to allow it to only 

be required to install and maintain the 

less expensive LNBs/OFA emission 

controls rather than the more expensive 

SCR controls. We welcome a SIP 

revision that would make the shutdown 

requirement State law, and we would 

withdraw the shutdown requirement 

from the SIP upon approving such a SIP 

revision. 

2. Dave Johnston Unit 4 

We proposed to require PacifiCorp 

Dave Johnston Unit 4 to meet a FIP 

emission limit of 0.12 lb/MMBtu (30- 

day rolling average) for NOX BART 

(assuming the installation of LNBs/OFA 

with SNCR). Based on our revised costs 

of compliance and visibility impacts, we 

no longer conclude that NOX BART is 

an emission limit of 0.12 lb/MMBtu (30- 

day rolling average). Based on our new 

cost and visibility improvement 

numbers, we conclude that NOX BART 

is represented by the SIP emission limit 

of 0.15 lb/MMBtu (30-day rolling 

average) for this unit. This emission 

limit assumes the installation of LNBs/ 

OFA. As such, we are approving 

Wyoming’s NOX BART determination 

for Dave Johnston Unit 4. 

3. Naughton Units 1 and 2 

We proposed to require PacifiCorp 

Naughton Units 1 and 2 to meet a FIP 

emission limit of 0.07 lb/MMBtu (30- 

day rolling average) for NOX BART 

(assuming the installation of LNBs/OFA 

with SCR). As detailed in the next 

section, based on our revised costs of 

compliance and visibility impacts, we 

no longer conclude that NOX BART is 

an emission limit of 0.07 lb/MMBtu (30- 

day rolling average). Based on our new 

cost and visibility improvement 

numbers, we conclude that NOX BART 

is represented by the SIP emission limit 

of 0.26 lb/MMBtu (30-day rolling 

average) for each unit. This emission 

limit assumes the installation of LNBs/ 

OFA. As such, we are approving 

Wyoming’s NOX BART determination 

for Naughton Units 1 and 2. 

4. Naughton Unit 3 

We proposed to approve the State’s 

NOX BART determination for Naughton 

Unit 3, which was an emission limit of 

0.07 lb/MMBtu (30-day rolling average) 

(assumes the installation of LNBs/OFA 

with SCR). PacifiCorp submitted 

comments on our proposed rulemaking 

on August 26, 2013. In those comments, 

PacifiCorp indicated (page 72) that 

instead of installing SCR as required by 

the SIP, it plans to convert Naughton 

Unit 3 to natural gas in 2018 without 

installation of any post-combustion 

control of NOX emissions. Conversion to 

natural gas in this manner can be 

expected to result in NOX emissions that 

are higher than the 0.07 lb/MMBtu limit 

in the SIP combined with much lower 

SO2 and PM emissions, with a 

substantially lower overall remaining 

impact on visibility. On July 5, 2013, 

Wyoming issued Air Quality permit 

MD–14506 to PacifiCorp that reflects the 

conversion of Naughton Unit 3 to 

natural gas in June of 2018. EPA met 

with PacifiCorp on October 31, 2013, to 

clarify the comments submitted by 

PacifiCorp (see October 31, 2013 memo 

to docket). PacifiCorp requested that 

EPA include in its final action the 

emission limits for SO2, PM, and NOX

that the State had in its permit MD– 

14506 that it issued to PacifiCorp. EPA 

supports PacifiCorp’s conversion of 

Naughton Unit 3 to natural gas. 

However, we have the authority and 

obligation to take action on the SIP as 

submitted by the State, and there is no 

basis to disapprove the SIP. Since we 

are approving the SIP, we do not have 

authority to impose FIP limits even if 

independently requested by a source. 

Therefore, we cannot use the FIP to 

relieve Naughton Unit 3 of the 

obligation to achieve the 0.07 lb/MMBtu 

NOX emission limit in the SIP nor to 

impose emission limits for SO2 and PM 

that reflect the planned conversion to 

natural gas. Under the terms of the SIP, 

the compliance deadlines for the 

emission limits in the SIP for Naughton 

Unit 3 do not become effective until five 

years after our final action. We 

understand that Wyoming intends to 

submit a revision to their regional haze 

SIP for Naughton Unit 3 that reflects the 

BART NOX emission limits in its permit 

MD–14506 as soon as practicable. EPA 

intends to act on this SIP revision in an 

expedited timeframe to reflect the 

conversion of Naughton Unit 3 to 

natural gas and a revised BART NOX

limit. In our final action we are 

approving Wyoming’s NOX BART 

determination for Naughton Unit 3. Our 

regulatory language reflects the 

following emission limit for Naughton 

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5046 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

16We are finalizing our proposed approval of the 

State’s PM BART determinations. We did not 

receive any adverse comments that were sufficient 

to convince us that reexamination of the State’s 

control costs was warranted. 

Unit 3 for NOX: 0.07 lb/MMBtu (30-day 

rolling average). 

5. Wyodak 

We proposed to require PacifiCorp 

Wyodak Unit 1 to meet a FIP emission 

limit of 0.17 lb/MMBtu (30-day rolling 

average) for NOX BART (assuming the 

installation of LNBs/OFA with SNCR). 

Based on our revised costs of 

compliance and visibility impacts, as 

well as comments received during the 

public comment period (see section V), 

we no longer conclude that NOX BART 

is an emission limit of 0.17 lb/MMBtu 

(30-day rolling average). Based on our 

new cost and visibility improvement 

numbers, we conclude that NOX BART 

is a FIP emission limit of 0.07 lb/

MMBtu (30-day rolling average) for this 

unit. This emission limit assumes the 

installation of LNBs/OFA with SCR. As 

detailed in the next section, based on 

our weighing of the five factors, we find 

that the average cost-effectiveness of 

SCR ($4,036/ton) and the incremental 

cost-effectiveness ($6,233/ton), 

combined with a visibility improvement 

of 0.61 deciviews at the most impacted 

Class I area, makes the selection of SCR 

for BART reasonable. 

6. Jim Bridger 

In our proposal, we proposed to 

approve the State’s NOX BART and LTS 

determinations for Jim Bridger Units 1 

and 2. The State’s BART determination 

required each unit to meet an emissions 

limit of 0.26 lb/MMBtu (30-day rolling 

average) within five years of our 

approval of the SIP, based on new LNB 

plus OFA. The LTS determination 

required each unit to meet an emission 

limit of 0.07 lb/MMBtu (30-day rolling 

average) by December 31, 2022, and 

December 31, 2021, respectively. EPA 

proposed to approve these compliance 

dates for numerous reasons as discussed 

in detail in our proposed rulemaking. 78 

FR 34755. We also proposed an 

alternative FIP BART determination that 

would require Jim Bridger Units 1 and 

2 to meet an emission limit of 0.07 lb/ 

MMBtu (30-day rolling average) within 

five years of our final rulemaking. 78 FR 

34780. We are finalizing our proposed 

approval of the State’s BART and LTS 

determinations for Jim Bridger Units 1 

and 2, although the reasons for our final 

action on Jim Bridger Units 1 and 2 have 

changed from our proposed action. 

In our proposed rulemaking, we 

stated: 

EPA is proposing to determine that BART 

for all units at Jim Bridger would be SCR if 

the units were considered individually, 

based on the five factors, without regard for 

the controls being required at other units in 

the PacifiCorp system. However, when the 

cost of BART controls at other PacifiCorp 

owned EGUs is considered as part of the cost 

factor for the Jim Bridger Units, EPA is 

proposing that Wyoming’s determination that 

NOX BART for these units is new LNB plus 

OFA for is reasonable. Considering costs 

broadly, it would be unreasonable to require 

any further retrofits at this source within five 

years of our final action. We note that the 

CAA establishes five years at the longest 

period that can be allowed for compliance 

with BART emission limits.’’ 78 FR 34756. 

However, as discussed in detail in section 

V.D.2 below, we do not think PacifiCorp has 

presented ample evidence to show that it 

would be unreasonable or not feasible for 

them to install numerous SCRs within the 

five year BART period. Nonetheless, we are 

approving the State’s BART determination 

and LTS for Jim Bridger Units 1 and 2 based 

on our consideration of the five factors, as 

detailed in the next section. 

We are approving the State’s SIP 

requirement that Jim Bridger Units 1 

and 2 meet an emission limit of 0.07 lb/ 

MMBtu (30-day rolling average) by 2022 

and 2021, respectively. We are also 

approving the State’s BART 

determination that requires Jim Bridger 

Units 1 and 2 to meet a NOX emission 

limit of 0.26 lb/MMBtu (30-day rolling 

average) within five years of our final 

action. 

For Jim Bridger Units 3 and 4 we 

proposed to approve the SIP with regard 

to the State’s determination that the 

appropriate level of NOX control for 

Units 3 and 4 for purposes of reasonable 

progress is the SCR-based emission limit 

in the SIP of 0.07 lb/MMBtu, with 

compliance dates of December 31, 2015 

for Unit 3 and December 31, 2016 for 

Unit 4. In our proposal we noted that 

since the State is requiring PacifiCorp to 

install the LTS controls within the 

timeline that BART controls would have 

to be installed pursuant to 40 CFR 

51.308(e)(iv), we proposed to approve 

the State’s compliance schedule and 

emission limit of 0.07 lb/MMBtu for Jim 

Bridger Units 3 and 4 as meeting the 

BART requirements. 

We are finalizing our proposed 

approval of the State’s BART and LTS 

determinations for Jim Bridger Units 3 

and 4, although, similar to Units 1 and 

2, the reasons for our final action on 

Units 3 and 4 have changed from our 

proposed action. 

7. Dave Johnston Units 1 and 2 

We proposed to require PacifiCorp 

Dave Johnston Units 1 and 2 to meet a 

FIP emission limit of 0.22 lb/MMBtu 

(30-day rolling average) for NOX under 

reasonable progress (assuming the 

installation of LNBs/OFA). As detailed 

in the next section, based on our revised 

costs and visibility impacts, we no 

longer conclude that an emission limit 

of 0.22 lb/MMBtu (30-day rolling 

average) is warranted. We are approving 

Wyoming’s NOX reasonable progress 

determinations for Dave Johnston Units 

1 and 2 (i.e., no controls). 

IV. Basis for Our Final Action 

We have fully considered all 

significant comments on our proposal 

and have concluded that no changes 

from our proposal other than those 

discussed in detail above are warranted. 

Our action is based on an evaluation of 

Wyoming’s regional haze SIP 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 Wyoming’s SIP submittal is 

based on CAA section 110(k). Our 

authority to promulgate a FIP is based 

on CAA section 110(c). 

In our proposal, EPA asked interested 

parties to provide additional 

information on both our evaluation of 

the BART factors and our proposed 

determinations. 78 FR 38745. We 

provided notice that any supplemental 

information we received could lead us 

to select BART control technologies or 

compliance deadlines that differed from 

our proposal. In response to this 

request, we received extensive 

comments on the visibility modeling 

and cost estimates that we provided in 

the proposal for NOX BART control 

technologies. As a result of these 

comments, we have revised our 

visibility modeling and cost estimates. 

The details of these changes and our 

reasons for making them are provided 

elsewhere in this document and in our 

responses to the comments. Based on 

these changes, we have reassessed our 

proposed action on the State’s NOX

BART determinations for each of the 

subject-to-BART sources by reevaluating the five statutory factors.16

We have also reassessed our proposed 

action on the State’s NOX reasonable 

progress determination for Dave 

Johnston Units 1 and 2. In this section, 

we describe in detail our reassessment 

of the statutory factors for these sources 

based on our revised visibility modeling 

and cost estimates. For two sources— 

Jim Bridger and Wyodak—we also 

received additional comments, 

explained below, that caused us to 

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Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 5047 

reconsider certain aspects of our 

decision for those sources. 

EPA notes that, in considering the 

visibility improvements reflected in our 

revised modeling, EPA interprets the 

BART Guidelines to require 

consideration of the visibility 

improvement from BART applied to the 

entire BART-eligible source. The BART 

Guidelines explain that, ‘‘[i]f the 

emissions from the list of emissions 

units at a stationary source exceed a 

potential to emit of 250 tons per year for 

any visibility-impairing pollutant, then 

that collection of emissions units is a 

BART-eligible source.’’ In other words, 

the BART-eligible source (the list of 

BART emissions units at a source) is the 

collection of units for which one must 

make a BART determination. The BART 

Guidelines state ‘‘you must conduct a 

visibility improvement determination 

for the source(s) as part of the BART 

determination.’’ This requires 

consideration of the visibility 

improvement from BART applied to the 

BART-eligible source as a whole. 

We note, however, that while our 

regulations require states and EPA to 

assess visibility improvement on a 

source-wide basis, they provide 

flexibility to also consider unit-specific 

visibility improvement in order to more 

fully inform the reasonableness of a 

BART determination, but that does not 

replace the consideration of visibility 

benefit from the source (facility) as a 

whole. In making the BART 

determinations in this final action we 

have considered visibility 

improvements at the source, and then 

also at the units that comprise the 

source. 

As explained in more detail later in 

this decision, we received during the 

comment period significant input on 

expected costs associated with different 

control technologies. We discuss in the 

section above and in our response to 

comments, the changes we made in 

response to comments received on costs 

of different control technologies. As 

discussed above and in our response to 

comments, we have revised our 

modeling analysis in light of the input 

we received during the public comment 

period. This additional information and 

analysis result in different costs and 

visibility benefits, two of the five BART 

factors. In some cases this leads us to 

finalize our proposal, and in other cases 

to reach a different conclusion. 

This decision, which addresses 

multiple facilities in a state where 

numerous Class 1 areas are impacted to 

a greater or lesser degree, illustrates 

clearly the case-by-case nature of the 

BART determination process. The 

interplay among the five factors, and in 

particular the cost and visibility factors, 

is highly significant and determinative 

of the outcome. In considering this 

information, as we have noted in prior 

decisions, our first assessment is 

whether the state’s determination is 

reasonable in light of the facts and 

consistent with the requirements of the 

Clean Air Act and implementing 

regulations. If we determine that it is, 

even if we might have reached a 

different outcome if it were our decision 

to make in the first instance, we will 

approve the SIP. 

Below is a more specific discussion of 

our determinations in the final decision. 

As stated above more detailed 

information on our determinations can 

be found in the response to comments 

sections of this rulemaking. 

A. Laramie River 

The State’s regional haze SIP 

determined that NOX BART for Laramie 

River Units 1, 2, and 3 is new LNB/

SOFA. We proposed to disapprove the 

State’s determination because the State 

neglected to reasonably assess the costs 

of compliance and visibility 

improvement in accordance with the 

BART Guidelines. 78 FR 34766. After 

revising the State’s costs and modeling 

and re-evaluating the statutory factors, 

we proposed to determine that NOX

BART is LNB/SOFA + SCR, with an 

emissions limit of 0.07 lb/MMBtu for 

each unit. We sought comment 

generally on the BART factors and our 

control determinations and indicated 

that we could revise our control 

determinations depending on any new 

information that we received. 

As the result of the comments 

received on our proposal, we have 

further revised our calculation of the 

costs of compliance and visibility 

modeling. We have considered any 

comments on the other BART factors 

but we have not changed our assessment 

of the other BART factors. The revised 

visibility modeling for the most 

impacted Class I area (Badlands) is 

presented in the following table. 

TABLE 18—VISIBILITY MODELING FOR LARAMIE RIVER STATION

Laramie River Station LNB/SOFA LNB/SOFA + SNCR LNB/SOFA + SCR 

Unit 1 ..................................................... 0.18 deciviews ...................................... 0.28 deciviews ...................................... 0.57 deciviews 

Unit 2 ..................................................... 0.18 deciviews ...................................... 0.27 deciviews ...................................... 0.53 deciviews 

Unit 3 ..................................................... 0.18 deciviews ...................................... 0.27 deciviews ...................................... 0.52 deciviews 

Total * .............................................. 0.54 deciviews ...................................... 0.82 deciviews ...................................... 1.62 deciviews 

* The total visibility improvement was estimated as the sum of the visibility improvement from each unit. 

We also considered the visibility 

improvement at other impacted Class I 

areas (Wind Cave, Rawah, and Rocky 

Mountain), which range from 0.25 to 

0.47 deciviews, 0.26 to 0.43 deciviews, 

and 0.23 to 0.44 deciviews, for Units 1, 

2, and 3, respectively. Further details 

regarding our revised visibility 

modeling and cost estimates were 

provided in section III.A. 

After re-evaluating the BART factors, 

we continue to find that LNB/SOFA + 

SCR is reasonable as BART and are 

therefore finalizing our proposal. The 

visibility improvement associated with 

LNB/SOFA + SCR at the most impacted 

Class I area is significant on both a 

source-wide (1.62 deciviews) and unitspecific (0.52–0.57 deciviews) basis. 

The significant visibility improvement 

at three other impacted Class I areas also 

supports the selection of this option. 

Finally, we believe that the incremental 

visibility improvement at the most 

impacted Class I area of SCR over SNCR 

(nearly double in all cases) warrants the 

selection of the most stringent control. 

In regards to the costs of compliance, 

we found that the revised average and 

incremental cost-effectiveness of LNB/ 

SOFA + SCR is in line with what we 

have found to be acceptable in our other 

FIPs. The average cost-effectiveness per 

unit ranges from $4,375 to $4,461/ton, 

while the incremental cost-effectiveness 

ranges from $5,449 to $5,871/ton. We 

believe that these costs are reasonable, 

especially in light of the significant 

visibility improvement associated with 

LNB/SOFA + SCR. As a result, we are 

finalizing our proposed disapproval of 

the State’s NOX BART determination for 

Laramie River Station and finalizing our 

proposed FIP that includes a NOX BART 

determination of LNB/SOFA + SCR, 

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5048 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

17Air Quality Modeling Protocol: Wyoming 

Regional Haze Federal Implementation Plan, U.S. 

EPA, January, 2014. 

with an emission limit of 0.07 lb/ 

MMBtu (30-day rolling average). 

B. Jim Bridger 

The State’s regional haze SIP 

determined that NOX BART for Jim 

Bridger Units 1–4 is new LNBs with 

SOFA. The State also determined that 

SCR should be installed at each unit as 

part of the State’s long-term strategy to 

achieve reasonable progress at several 

Class I areas, and set compliance dates 

of December 31, 2022, December 31, 

2021, December 31, 2015, and December 

31, 2016 for Units 1–4, respectively. 

In our proposal, we indicated that the 

State had neglected to reasonably assess 

the costs of compliance and visibility 

improvement for Jim Bridger in 

accordance with the BART Guidelines. 

We nonetheless proposed to approve the 

State’s BART and reasonable progress 

determinations for Units 3 and 4 

because the compliance deadlines to 

install SCR on these units were 

sufficient to meet the requirements of 

BART. We are now finalizing our 

proposed action for Units 3 and 4. 

We also proposed to approve the 

State’s BART and reasonable progress 

determinations for Units 1 and 2, but on 

a different basis. There, we indicated 

that given the number of SCR retrofits 

PacifiCorp had to perform in Wyoming 

and in other states, it might not be 

affordable for PacifiCorp to install two 

additional SCRs on Jim Bridger Units 1 

and 2 within the five-year BART 

compliance period. We requested 

additional information from 

commenters regarding whether the 

affordability provisions of the BART 

Guidelines should be applied to Units 1 

and 2. In the alternative, we proposed 

to find that NOX BART for Units 1 and 

2 was an emission limit of 0.07 lb/ 

MMBtu (30-day rolling average) based 

on the installation of LNB/SOFA + SCR 

with a compliance deadline of five 

years. Under this scenario, we 

acknowledged that the costeffectiveness of LNB/SOFA + SCR at 

Units 1 and 2 was within the range of 

what EPA and the State itself had found 

reasonable in other BART 

determinations. We also considered the 

significant visibility improvement 

demonstrated by the State’s modeling to 

warrant LNB/SOFA + SCR as BART. 

Finally, we sought comment generally 

on the BART factors and our control 

determinations and indicated that we 

could revise our control determinations 

depending on any new information that 

we received. 

In response to our proposal, we 

received both supportive and adverse 

comments regarding whether the 

affordability provisions of the BART 

Guidelines should apply to Units 1 and 

2. As explained in more detail in our 

responses to these comments, we agree 

that PacifiCorp did not make a sufficient 

showing that it could not afford to 

install LNB/SOFA + SCR on Units 1 and 

2 within the five-year compliance 

period. Nevertheless, we also received 

new information regarding the costs of 

compliance and visibility benefits 

associated with Jim Bridger and have 

revised our cost estimates and visibility 

modeling for all four units accordingly. 

We have considered any comments on 

the other BART factors but we have not 

changed our assessment of the other 

BART factors. 

The revised visibility modeling for the 

most impacted Class I area (Bridger) is 

presented in the following table (with 

straight font representing modeled 

results using an ammonia background 

based on a monitored monthly varying 

concentration, italicized font 

representing modeled results using 

IWAQM default 0.5 ppb background 

ammonia).17

TABLE 19—VISIBILITY MODELING FOR JIM BRIDGER

Jim Bridger LNB/SOFA LNB/SOFA + SNCR LNB/SOFA + SCR 

Unit 1 ................................................. 0.17/0.23 deciviews .......................... 0.20/0.27 deciviews .......................... 0.27/0.37 deciviews 

Unit 2 ................................................. 0.16/0.21 deciviews .......................... 0.19/0.25 deciviews .......................... 0.27/0.36 deciviews 

Unit 3 ................................................. 0.14/0.19 deciviews .......................... 0.17/0.23 deciviews .......................... 0.26/0.35 deciviews 

Unit 4 ................................................. 0.25/0.23 deciviews .......................... 0.30/0.28 deciviews .......................... 0.45/0.42 deciviews 

Total * ......................................... 0.72/0.86 deciviews .......................... 0.86/1.03 deciviews .......................... 1.25/1.5 deciviews 

* The total visibility improvement was estimated as the sum of the visibility improvement from each unit. 

We also considered the visibility 

improvements at other impacted Class I 

areas (Bridger, Fitzpatrick, Rawah, 

Rocky Mountain, Grand Teton, Teton, 

Washakie, and Yellowstone), which 

range from 0.26 to 0.91 deciviews, 0.26 

to 0.89 deciviews, 0.24 to 0.87 

deciviews, and 0.27 to 1.0 deciviews, for 

Units 1–4, respectively. Further details 

regarding our revised visibility 

modeling and cost estimates are 

provided in section III.A. 

After re-evaluating the BART factors, 

we are approving the State’s 

determination that LNB/SOFA is NOX

BART for Units 1–4. The visibility 

improvement associated with LNB/ 

SOFA + SCR at the most impacted Class 

I area is significant on a source-wide 

basis (1.25 to 1.5 deciviews). The fact 

that Jim Bridger Station affects a number 

of other Class I areas, which also would 

see appreciable visibility improvement 

with the installation of LNB/SOFA + 

SCR, also weighs in favor of selecting 

this option as BART. The unit-specific 

benefits for Units 1 and 2 are somewhat 

more modest (0.27–0.37 deciviews), 

however, especially considering the low 

incremental improvement over SNCR 

(0.07–0.11 deciviews). The incremental 

visibility improvement of SNCR over 

LNB/SOFA is even smaller (0.03–0.04 

deciviews). 

In regards to the costs of compliance, 

we found that the revised average costeffectiveness of LNB/SOFA + SCR is in 

line with what we have found to be 

acceptable in our other FIPs. The 

average cost-effectiveness is $4,088 and 

$4,461/ton at Units 1 and 2, 

respectively. The incremental costeffectiveness, on the other hand, is on 

the high end of what we have found to 

be reasonable in our other FIPs. The 

incremental cost-effectiveness is $7,477 

and $8,986/ ton at Units 1 and 2, 

respectively. 

Ultimately however, while we believe 

that these costs and visibility 

improvements could potentially justify 

LNB/SOFA + SCR as BART, because 

this is a close call and because the State 

has chosen to require SCR as a 

reasonable progress control, we believe 

deference to the State is appropriate in 

this instance. We are therefore finalizing 

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Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 5049 

our approval of the State’s 

determination to require SCR at Jim 

Bridger Units 1–4, with an emission 

limit of 0.07 lb/MMBtu (30-day rolling 

average), as part of its long-term 

strategy. We are also finalizing our 

approval of the compliance dates of 

December 31, 2022, December 31, 2021, 

December 31, 2015, and December 31, 

2016 for Units 1- 4 respectively. 

C. Dave Johnston Units 3 and 4 

The State’s regional haze SIP 

determined that NOX BART for Dave 

Johnston Units 3 and 4 is LNB/OFA. We 

proposed to disapprove the State’s 

determination because the State 

neglected to reasonably assess the costs 

of compliance and visibility 

improvement in accordance with the 

BART Guidelines. 78 FR 34778. After 

revising the State’s costs and modeling 

and re-evaluating the statutory factors, 

we proposed to determine that NOX

BART for Unit 3 is LNB/SOFA + SCR, 

with an emission limit of 0.07 lb/ 

MMBtu (30-day rolling average). We 

proposed that NOX BART for Unit 4 is 

LNB/SOFA + SNCR, with an emission 

limit of 0.12 lb/ MMBtu. We sought 

comment generally on the BART factors 

and our control determinations and 

indicated that we could revise our 

control determinations depending on 

any new information that we received. 

As the result of the comments 

received on our proposal, we have 

further revised our calculation of the 

costs of compliance and visibility 

modeling. We have considered any 

comments on the other BART factors 

but we have not changed our assessment 

of the other BART factors. The revised 

visibility modeling for the most 

impacted Class I area (Wind Cave) is 

presented in the following table. 

TABLE 20—VISIBILITY MODELING FOR DAVE JOHNSTON (BART UNITS) 

Dave Johnston LNB/OFA LNB/OFA + SNCR LNB/OFA + SCR 

Unit 3 ..................................................... 0.33 deciviews ...................................... 0.39 deciviews ...................................... 0.51 deciviews 

Unit 4 ..................................................... 0.41 deciviews ...................................... 0.46 deciviews ...................................... 0.57 deciviews 

Total * .............................................. 0.74 deciviews ...................................... 0.85 deciviews ...................................... 1.08 deciviews 

* The total visibility improvement was estimated as the sum of the visibility improvement from each unit. 

We also considered the visibility 

improvement at other impacted Class I 

areas (Badlands, Mt Zirkel, Rawah, and 

Rocky Mountain), which range from 

0.20 to 0.47 deciviews and 0.24 to 0.55 

deciviews, for Units 3 and 4, 

respectively. Further details regarding 

our revised visibility modeling and cost 

estimates were provided in section III.A. 

After re-evaluating the BART factors, 

we no longer believe that LNB/OFA + 

SNCR is NOX BART for Dave Johnston 

Unit 4. As we explained in the proposal, 

the incremental cost-effectiveness of 

LNB/OFA + SCR was and continues to 

be excessive ($13,312), so we have 

eliminated this control option. While 

the revised average and incremental 

costs of LNB/OFA + SNCR continue to 

be reasonable, the incremental visibility 

improvement of SNCR over LNB/OFA is 

now only 0.05 deciviews. In light of this 

new visibility information, we believe 

that the State’s determination that LNB/ 

OFA is NOX BART for Unit 4 was 

reasonable and are approving it 

accordingly. 

In regards to Dave Johnston Unit 3, we 

continue to believe that LNB/OFA + 

SCR is NOX BART. The visibility 

improvement associated with LNB/ 

SOFA + SCR at the most impacted Class 

I area is significant (0.51 deciviews). 

The visibility improvement at several 

other impacted Class I areas also 

supports the selection of this option. 

Finally, we do not believe that the 

incremental visibility improvement at 

the most impacted Class I area of SCR 

over SNCR (0.12 deciviews) is 

sufficiently insignificant to warrant the 

elimination of the most stringent control 

in this instance. 

In regards to the costs of compliance, 

we found that the revised average and 

incremental cost-effectiveness of LNB/ 

SOFA + SCR is in line with what we 

have found to be acceptable in our other 

FIPs. The average cost-effectiveness is 

$2,635/ton, while the incremental costeffectiveness is $7,583/ton. We believe 

that these costs are reasonable, 

especially in light of the significant 

visibility improvement associated with 

LNB/SOFA + SCR. 

In response to other comments we 

received, we also considered an 

alternative BART analysis for Unit 3 

based on PacifiCorp’s commitment to 

retire Unit 3 by 2027 in lieu of installing 

SCR. Using a 9-year remaining useful 

life as the amortization period for Unit 

3, the incremental cost-effectiveness of 

LNB/OFA + SCR becomes excessive 

($11,781). Furthermore, the incremental 

visibility improvement at the most 

impacted Class I area from use of LNB/ 

OFA to use of LNB/OFA+ SNCR is only 

0.06 deciviews. Thus, taking all five 

factors into account, including the 

remaining useful life of nine years, we 

conclude that the NOX BART would be 

LNB/OFA in this scenario. 

To provide flexibility, we are 

finalizing both scenarios in a FIP for 

Dave Johnston Unit 3. Under the first 

scenario, we are finalizing a NOX BART 

determination of LNB/OFA + SCR, with 

an emission limit of 0.07 lbs/ MMBtu 

(30-day rolling average). Under the 

alternative scenario, based on a 

commitment to retire Unit 3 by 2027, we 

are finalizing a NOX BART 

determination of LNB/OFA, with an 

emission limit of 0.28 lbs/ MMBtu (30- 

day rolling average). 

D. Naughton 

The State’s regional haze SIP 

determined that NOX BART is new 

LNB/OFA for Naughton Units 1 and 2 

and LNB/OFA + SCR for Naughton Unit 

3. We proposed to approve the State’s 

determination for Unit 3, but proposed 

to disapprove the State’s determination 

for Units 1 and 2 because the State 

neglected to reasonably assess the costs 

of compliance and visibility 

improvement in accordance with the 

BART Guidelines. 78 FR 34748. After 

revising the State’s costs and modeling 

and re-evaluating the statutory factors, 

we proposed to determine that NOX

BART for Units 1 and 2 is LNB/SOFA 

+ SCR, with an emissions limit of 0.07 

lb/MMBtu for each unit. We sought 

comment generally on the BART factors 

and our control determinations and 

indicated that we could revise our 

control determinations depending on 

any new information that we received. 

As the result of the comments 

received on our proposal, we have 

further revised our calculation of the 

costs of compliance and visibility 

modeling. We have considered any 

comments on the other BART factors 

but we have not changed our assessment 

of the other BART factors. The revised 

visibility modeling for the most 

impacted Class I area (Bridger) is 

presented in the following table (with 

straight font representing modeled 

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results using an ammonia background 

based on a monitored monthly varying 

concentration, italicized font 

representing modeled results using 

IWAQM default 0.5 ppb background 

ammonia). 

TABLE 21—VISIBILITY MODELING FOR NAUGHTON

Naughton LNB/OFA LNB/OFA + SNCR LNB/OFA + SCR 

Unit 1 ............................................. 0.22/0.26 deciviews ...................... 0.26/0.30 deciviews ...................... 0.33/0.39 deciviews. 

Unit 2 ............................................. 0.28/0.32 deciviews ...................... 0.34/0.38 deciviews ...................... 0.42/0.46 deciviews. 

Unit 3 ............................................. 0.05/0.07 deciviews ...................... 0.20/0.29 deciviews ...................... 0.49/0.60 deciviews. 

Total * ...................................... 0.55/0.65 deciviews ...................... 0.80/0.97 deciviews ...................... 1.24/1.45 deciviews 

* The total visibility improvement was estimated as the sum of the visibility improvement from each unit. 

We also considered the visibility 

improvement at other impacted Class I 

areas (Fitzpatrick, North Absaroka, 

Washakie, Teton, Grand Teton, and 

Yellowstone), which range from 0.10 to 

0.30 deciviews, 0.08 to 0.42 deciviews, 

and 0.13 to 0.49 deciviews, for Units 1, 

2, and 3, respectively. Further details 

regarding our revised visibility 

modeling and cost estimates were 

provided in section III.A. 

After re-evaluating the BART factors, 

we no longer believe that LNB/OFA + 

SCR is NOX BART for Naughton Units 

1 and 2. The visibility improvement 

associated with LNB/SOFA + SCR at the 

most impacted Class I area remains 

significant on a source-wide basis (1.24– 

1.45 deciviews) but more modest on a 

unit-specific basis (0.33–0.46 

deciviews). The visibility improvement 

at six other impacted Class I areas 

continues to support the selection of 

this option as well. In regards to the 

costs of compliance, however, we found 

that while the revised average costeffectiveness values for LNB/OFA + SCR 

were acceptable, the revised 

incremental cost-effectiveness values 

were beyond the upper end of the range 

(higher even than Jim Bridger) of what 

we have found to be acceptable in our 

other FIPs. For Units 1 and 2, 

respectively, the average costeffectiveness per unit is $3,109 and 

$2,566/ ton, while the incremental costeffectiveness is $10,384 and $8,440/ ton. 

Consequently, we believe that it was not 

unreasonable for the State to reject LNB/ 

OFA + SCR as BART. Furthermore, we 

cannot say the State acted unreasonably 

in rejecting LNB/OFA + SNCR at Units 

1 and 2 because the incremental 

visibility improvement of SNCR over 

LNB/OFA, while possibly appreciable, 

is very low at just 0.10 deciviews across 

both units. Therefore, based on our 

analysis we believe that the State’s 

determination that LNB/OFA is NOX

BART for Units 1 and 2, with an 

emission limit of 0.28 lbs/ MMBtu, was 

ultimately reasonable and are approving 

it accordingly. 

E. Wyodak 

The State’s regional haze SIP 

determined that NOX BART for Wyodak 

Unit 1 is new LNBs with OFA. We 

proposed to disapprove the State’s 

determination because the State 

neglected to reasonably assess the costs 

of compliance and visibility 

improvement in accordance with the 

BART Guidelines. 78 FR 34784–34785. 

As a result, we also proposed a FIP for 

NOX BART. After considering the BART 

factors, we noted that the costeffectiveness and visibility 

improvement of the most stringent 

control option, LNB/OFA + SCR, were 

within the range of values that EPA had 

found reasonable in other FIPs. 

However, we proposed not to require 

LNB/OFA + SCR as NOX BART for 

Wyodak Unit 1. Instead, we proposed to 

require LNB/OFA + SNCR based on the 

reasoning that the cumulative visibility 

improvement of SCR across all Class I 

areas was low when compared to the 

cumulative visibility improvement 

associated with SCR at Dave Johnston 

Unit 3, Laramie River Units 1–3, and 

Naughton Units 1 and 2. We sought 

comment generally on the BART factors 

and our control determinations and 

indicated that we could revise our 

control determinations depending on 

any new information that we received. 

Based on our discussion of LNB/OFA + 

SCR at Wyodak, that control option was 

among those that we invited comment 

on. 

In response to our proposal for 

Wyodak, we received comments that 

cumulative visibility improvement 

should not be used as a basis to reject 

a control option that has already been 

deemed reasonable based on visibility 

improvement at the most impacted 

Class I area. The commenters pointed 

out that such an approach would have 

the illogical effect of allowing an added 

benefit (visibility improvement at 

multiple Class I areas) to weigh in favor 

of less stringent controls. We agree with 

this criticism and want to make clear 

today that where a control is warranted 

as BART based on the costs of controls 

and visibility benefits at the most 

impacted area alone, cumulative 

visibility benefits can only strengthen 

the case for that control, not suggest that 

it is unwarranted. Similarly, where a 

control might not be warranted as BART 

based on the improvement at a single 

Class I area, significant cumulative 

benefits are an additional consideration 

that could warrant that the control be 

selected as BART. 

In addition, we have further revised 

our calculation of the costs of 

compliance and visibility modeling for 

Wyodak Unit 1. We have not changed 

our assessment of the other BART 

factors. The revised visibility modeling 

for the most impacted Class I area (Wind 

Cave) is presented in the following 

table. 

TABLE 22—VISIBILITY MODELING FOR WYODAK

Wyodak LNB/SOFA LNB/SOFA + SNCR LNB/SOFA + SCR 

Unit 1 ..................................................... 0.21 deciviews ...................................... 0.32 deciviews ...................................... 0.61 deciviews. 

We also considered the visibility 

improvement at a second impacted 

Class I area (Badlands), which is a 

maximum of 0.38 deciviews for LNB/ 

SOFA + SCR. Further details regarding 

our revised visibility modeling and cost 

estimates were provided in the previous 

section. 

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After re-evaluating the BART factors 

and dismissing our earlier rationale for 

rejecting an otherwise reasonable 

control, we find that LNB/SOFA + SCR 

is reasonable as BART. As the BARTeligible source in this case is a single 

unit, the source-wide and unit-specific 

visibility improvements associated with 

the various control options are the same. 

The visibility improvement associated 

with LNB/SOFA + SCR at the most 

impacted Class I area (0.61 deciviews) is 

significant. There is also a more modest 

visibility improvement (0.38 deciviews) 

at a second impacted Class I area that 

supports the selection of this option. 

Finally, we believe that the incremental 

visibility improvement at the most 

impacted Class I area of SCR over SNCR 

(nearly double) warrants the selection of 

the most stringent control. 

In regards to the costs of compliance, 

we found that the revised average and 

incremental cost-effectiveness of LNB/ 

SOFA + SCR is in line with what we 

have found to be acceptable in our other 

FIPs. The average cost-effectiveness is 

$4,036/ton, while the incremental costeffectiveness of SCR over SNCR is 

$6,223/ton. We believe that these costs 

are reasonable, especially in light of the 

significant visibility improvement 

associated with LNB/SOFA + SCR at 

Wind Cave. As a result, we are 

finalizing our proposed disapproval of 

the State’s NOX BART determination for 

Wyodak Unit 1. Additionally, after 

carefully considering adverse 

comments, we have decided not to 

finalize our proposed NOX

determination of LNB/SOFA + SNCR, 

but rather are finalizing a NOX BART 

determination of LNB/SOFA + SCR, 

with an emission limit of 0.07 lb/ 

MMBtu (30-day rolling average). 

F. Dave Johnston Units 1 and 2 

(Reasonable Progress) 

We proposed to disapprove the State’s 

determination to not impose LNB/OFA 

as reasonable progress controls for NOX

at Dave Johnston Units 1 and 2. Based 

on our original cost estimates and 

visibility modeling, we also proposed to 

require PacifiCorp Dave Johnston Units 

1 and 2 to meet a FIP emission limit of 

0.22 lb/MMBtu (30-day rolling average) 

(assuming the installation of LNB/OFA). 

Based on our revised cost estimates and 

visibility modeling that we developed in 

response to comments, however, we no 

longer conclude that reasonable 

progress controls are warranted this 

planning period. While we continue to 

disagree with the State’s reasoning for 

not imposing controls (as detailed in our 

response to comments), we are not 

prepared to say the State’s ultimate 

decision was unreasonable. In 

evaluating the four reasonable progress 

factors and the visibility improvement 

associated with potential controls, we 

found that the average and incremental 

cost-effectiveness of LNB/OFA ($990/ 

ton and $1,221/ton, respectively), while 

reasonable if viewed in isolation, was 

not necessarily justified this planning 

period in light of the relatively modest 

visibility improvement predicted by the 

revised modeling (0.11 deciviews—0.12 

deciviews at the most impacted Class I 

area). As a result, we are approving the 

State’s reasonable progress 

determination of no new controls for 

Dave Johnston Units 1 and 2, but we 

expect the State to revisit the issue 

during the next planning period. 

V. Issues Raised by Commenters and 

EPA’s Responses 

A. Legal Issues 

1. EPA Authority and State Discretion 

Comment: Multiple commenters 

stated that CAA Section 169A and the 

Regional Haze Rule (RHR) give the 

states the lead in developing their 

regional haze SIPs. Some commenters 

went further in stating that Wyoming is 

given almost complete discretion in 

creating its regional haze SIP. These 

commenters argued that, because 

Wyoming is given such discretion, EPA 

lacks the statutory authority to 

disapprove the State’s regional haze SIP. 

Specifically, some commenters pointed 

to the flexibility the State is granted in 

developing its BART determinations 

and other RHR requirements. The 

commenters stated that the CAA 

anticipates that EPA will create 

guidance and that the states, using their 

discretion, will use this guidance to 

develop regional haze SIPs. The State of 

Wyoming and other parties argued that 

each factor in the five-factor analysis 

used to make its BART determinations 

was appropriately weighed based on the 

State’s own discretion. The commenters 

therefore argue that EPA has no basis on 

which to disapprove the five-factor 

analysis and that EPA does not have 

authority to reject a state’s BART 

determination solely because EPA 

would have conducted the analysis in a 

different way or reached a different 

conclusion. The commenters went on to 

say that the State, after considering all 

statutory factors, made BART 

determinations for all subject-to-BART 

sources in a manner consistent with 40 

CFR Part 51 Appendix Y, the 

established CAA requirements, and the 

interests of the State of Wyoming. 

Numerous commenters went on to say 

that the U.S. Court of Appeals for the 

D.C. Circuit has affirmed that EPA’s role 

in determining BART is limited and that 

a state’s role is paramount. The court 

found that the CAA ‘‘calls for states to 

play the lead role in designing and 

implementing regional haze programs.’’ 

Am. Corn Growers Ass’n v. EPA, 291 

F.3d 1, 2 (D.C. Cir. 2002). The 

commenters stated that the court also 

reversed a portion of EPA’s original 

RHR because it found that EPA’s 

method of analyzing visibility 

improvements distorted the statutory 

BART factors and was ‘‘inconsistent 

with the Act’s provisions giving the 

states broad authority over BART 

determinations.’’ Id., see also Utility Air 

Regulatory Group v. EPA, 471 F.3d 

1333, 1336 (D.C. Cir. 2006) (The second 

step in a BART determination ‘‘requires 

states to determine the particular 

technology that an individual source 

‘subject to BART’ must install.’’). 

The commenters asserted that states 

have the primary responsibility for 

preventing air pollution under the CAA. 

CAA section 101(a)(3), 42 U.S.C. 

7401(a)(3). Pursuant to this principle, 

states, not EPA, have always had 

primary control over decisions to 

impose specific emission limits (and 

therefore specific pollution control 

technologies) for individual facilities. 

By congressional design, EPA ‘‘is 

relegated . . . to a secondary role in the 

process of determining and enforcing 

the specific, source-by-source emission 

limitations which are necessary [to 

meet] national standards.’’ Train v. 

NRDC, 421 U.S. 60, 79 (1975). This 

basic division of responsibilities 

between EPA and the states remained 

unchanged when Congress amended the 

Act in 1977 and again in 1990. See 

Virginia v. EPA, 108 F.3d 1397, 1408– 

09 (D.C. Cir. 1997). 

Response: Congress crafted the CAA 

to provide for states to take the lead in 

developing SIPs, but balanced that 

decision by requiring EPA to review the 

SIPs to determine whether they meet the 

requirements of the CAA. EPA’s review 

of SIPs is not limited to a ministerial 

type of automatic approval of a state’s 

decisions. See North Dakota v. EPA, 730 

F.3d 750, 760–61 (8th Cir. 2013) 

(‘‘Although the CAA grants states the 

primary role of determining the 

appropriate pollution controls within 

their borders, EPA is left with more than 

the ministerial task of routinely 

approving SIP submissions.’’) 

(hereinafter ‘‘North Dakota’’). EPA must 

consider not only whether the State 

considered the appropriate factors, but 

whether the State acted reasonably in 

doing so. In undertaking such a review, 

EPA does not ‘‘usurp’’ the State’s 

authority, but ensures that such 

authority is reasonably exercised. EPA 

has the authority to issue a FIP either 

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when EPA has made a finding that the 

state has failed to timely submit a SIP 

or when EPA has found a SIP deficient. 

Here, EPA has authority on both 

grounds, and we have approved as 

much of the Wyoming regional haze SIP 

as possible, while promulgating a FIP 

only to fill the remaining gaps. 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 the implementation of the CAA and 

meeting the requirements of the RHR. 

We recognize that states have the 

primary responsibility of drafting a SIP 

to address the requirements of the 

CAA’s visibility program. We also 

recognize that we have the 

responsibility of ensuring that SIPs, 

including regional haze SIPs, conform to 

CAA requirements. We cannot approve 

a regional haze SIP that fails to address 

BART with a reasoned consideration of 

the statutory and regulatory 

requirements of the CAA and the RHR. 

See Oklahoma v. EPA, 723 F.3d 1201, 

1207 (10th Cir. 2013) (‘‘We agree with 

the EPA that the statute provides the 

agency with the power to review 

Oklahoma’s BART determination for 

these four units.’’) (hereinafter 

‘‘Oklahoma’’). 

Contrary to the commenters’ 

assertions, we recognize the State’s 

primary responsibility in drafting a SIP. 

In fact, we have approved many of the 

State’s determinations, including the 

entirety of Wyoming’s Section 309 

BART alternative for SO2 emissions. We 

are disapproving the State’s NOX BART 

determinations, as the CAA requires, 

because the State neglected to properly 

consider the costs of compliance and 

the visibility benefits associated with 

several of the available control options. 

We also disagree that our proposal is 

inconsistent with the American Corn 

Growers and Utility Air Regulatory 

Group decisions. These cases dealt with 

EPA’s authority to issue broad 

regulations that prescribed how states 

must conduct their BART 

determinations. They did not address 

EPA’s authority to review regional haze 

SIPs for compliance with the mandates 

of the CAA or EPA’s now finalized 

implementing regulations. The Tenth 

Circuit, in concluding that EPA had 

authority to disapprove a BART 

determination that did not follow the 

BART Guidelines, stated that the 

American Corn Growers opinion ‘‘does 

not alter this conclusion.’’ Oklahoma v. 

EPA, 723 F.3d 1201, 1208 (10th Cir. 

2013). 

Because the CAA sets certain 

mandatory statutory deadlines and 

provides for citizen suits when the 

Administrator fails to perform a 

mandatory duty, we are required by the 

terms of a consent decree to ensure that 

Wyoming’s CAA requirements for 

regional haze are finalized by January 

10, 2014. Because we have found that 

the State’s regional haze SIP did not 

satisfy CAA and RHR requirements in 

full and because we have previously 

found that Wyoming failed to timely 

submit its regional haze SIP, we have 

not only the authority, but a statutory 

duty to promulgate a FIP that meets 

those requirements. We have reviewed 

this decision in light of other decisions 

made by us, as well as decisions made 

in other states SIPs. Our action today in 

large part approves the regional haze 

SIP submitted by Wyoming. Our 

disapproval of Wyoming’s NOX BART 

and reasonable progress determinations 

and imposition of a FIP is not intended 

to encroach on State authority. Rather, 

our action today is required by the CAA 

to ensure that the State has a complete 

plan in place to address the CAA’s 

visibility requirements. 

Comment: The fact that Congress gave 

states primacy in making BART 

determinations is noteworthy and 

related to the fact that the regional haze 

program is focused on an aesthetic 

benefit, not a public health standard. 

Under other sections of the CAA, 

primarily those dealing with healthbased standards, Congress directed EPA 

to establish standards that do not take 

costs into consideration. States then 

develop plans to meet those healthbased standards. Under the New Source 

Performance Standards program (section 

111 of the CAA) and National Emission 

Standards for Hazardous Air Pollutants 

program (section 112), EPA routinely 

establishes specific emission limits for 

large industrial sources. The regional 

haze program, which deals with an 

aesthetic standard, was clearly laid out 

by Congress to be different in its 

approach, to avoid establishing 

emission limits, to give states authority 

to decide appropriate controls, and 

allow states to weigh the costs against 

the benefits. 

Response: We do not agree with this 

commenter’s characterization of the 

regional haze program or the CAA’s 

visibility requirements. While it is true 

that the goal of CAA sections 169A and 

169B is to improve visibility in national 

parks and wilderness areas rather than 

to prevent adverse human health effects, 

Congress structured the program so that 

states’ decisions had to be made in the 

form of SIPs, which EPA has the 

authority to review for compliance with 

all CAA requirements. Furthermore, 

Congress did not create an approach 

that would allow states to avoid 

establishing emission limits. On the 

contrary, Congress specifically directed 

EPA’s regulations to require states to 

devise ‘‘emission limits . . . necessary 

to make reasonable progress,’’ CAA 

section 169A(b)(2), including the 

requirement to establish BART, which 

the RHR defines as ‘‘an emission 

limitation.’’ 40 CFR 51.301. 

Comment: EPA’s actions leave 

nothing under the CAA’s framework by 

which Wyoming could make an 

approvable BART determination. EPA 

has overreached and exceeded its 

statutory authority by proposing a FIP 

that replaces Wyoming’s considered 

judgment with EPA’s priorities and 

policy choices. 

Response: We disagree with this 

comment. EPA is not substituting its 

judgment for that of the State of 

Wyoming or issuing a FIP merely to 

advance priorities and policy choices. 

Rather, we have determined that 

Wyoming did not properly follow the 

BART Guidelines or the CCM in 

conducting its BART analyses and, 

therefore, did not correctly consider the 

costs of compliance or the visibility 

benefits associated with available 

control technologies as the CAA 

requires. Consequently, we are 

finalizing a FIP in today’s action to 

remedy the gaps left by these 

inadequacies. We note, however, that 

the CAA’s framework provides 

Wyoming with the opportunity to 

submit a SIP revision at any time that 

could replace all or a portion of EPA’s 

FIP, and we encourage Wyoming to do 

so. 

Comment: EPA clearly gave the states 

more discretion through rulemaking 

when it split the universe of BART 

sources impacted by the BART 

Guidelines into power plants greater 

than 750 megawatts (MW) and all 

others. States were merely encouraged 

to follow the BART Guidelines for the 

smaller BART sources. EPA says in the 

preamble ‘‘that states should view the 

guidelines as helpful guidance for these 

other categories.’’ In saying this, EPA is 

affording even more discretion to the 

states in making BART determinations 

for the smaller BART sources. EPA has 

proposed disapproval of Wyoming’s 

BART determination and proposed a 

FIP for one of these smaller sources, the 

Wyodak Unit 1 335 MW power plant. 

The State believes that the EPA is again 

overreaching in its action by proposing 

a FIP for Wyodak Unit 1, where 

Wyoming was not even required to 

follow the BART Guidelines in arriving 

at its BART determination. 

Response: We agree that the BART 

Guidelines are only mandatory for 

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‘‘fossil-fuel fired power plants having a 

total generating capacity greater than 

750 megawatts.’’ 40 CFR 

51.308(e)(1)(ii)(B). However, the fact 

that a state may deviate from the 

procedures in the BART Guidelines 

when selecting BART for smaller EGUs 

does not mean that a state has 

unfettered discretion to act 

unreasonably or inconsistently with the 

CAA or the RHR. Ultimately, a state 

must still adopt the ‘‘best available 

retrofit technology,’’ CAA section 

169A(b)(2)B); 40 CFR 51.308(e)(1)(ii)(A), 

while reasonably considering the five 

statutory factors. 

The RHR further defines BART to 

mean ‘‘an emission limitation based on 

the degree of reduction achievable 

through the application of the best 

system of continuous emission 

reduction for each pollutant which is 

emitted by an existing stationary 

facility.’’ 40 CFR 51.301 (emphasis 

added). We do not interpret this 

requirement to allow a state to dismiss 

the best system of continuous emission 

reduction under the mantle of unlimited 

state discretion. As we discuss 

elsewhere in this document, Wyoming 

erroneously evaluated costs and 

visibility benefits when analyzing the 

various control options available for 

Wyodak, and thereby did not reasonably 

consider the statutory factors and select 

the best system of control. 

Comment: EPA’s RHR gave states the 

flexibility to choose alternatives to the 

BART process, such as participation in 

a trading program. EPA spells out in the 

preamble that this ‘‘substantial 

flexibility’’ provides the ‘‘states the 

ability to choose the least costly and 

least burdensome alternative.’’ EPA and 

28 states on the east coast took 

advantage of this flexibility when it 

declared that the cap and trade program 

for ozone nonattainment would, for the 

most part, satisfy the requirements of 

BART. The important point here is that 

EPA wanted and pushed for flexible, 

cost-savings approaches to address 

regional haze. EPA is still pushing for 

approval of the Cross States Air 

Pollution Rule (CSAPR) as a solution to 

regional haze problems on the east 

coast. 

There appears to be a consistency 

issue within the EPA over the 

application of flexibility. Wyoming does 

not think EPA meant for an approach to 

promote costs savings and less 

burdensome solutions to be restricted to 

one area of the country or certain types 

of solutions. However, EPA’s proposal 

to partially disapprove Wyoming’s 

regional haze SIP and impose more 

costly and burdensome FIP 

requirements for seven BART units in 

the State of Wyoming appear to be 

inconsistent with EPA’s purported 

‘‘substantial flexibility.’’ EPA’s failure to 

recognize Wyoming’s discretion in these 

areas is arbitrary and capricious. 

Response: Wyoming had the 

opportunity to submit better-than-BART 

alternatives in lieu of source-specific 

NOX BART determinations. Wyoming 

did not do so. Because Wyoming did not 

take advantage of the flexibility afforded 

by better-than-BART alternatives, we 

must review Wyoming’s BART 

determinations for compliance with the 

applicable requirements of the CAA, 

RHR, and BART Guidelines. Our 

proposal clearly laid out the bases for 

our proposed disapproval of the State’s 

NOX BART determinations, and we 

have relied on the standards contained 

in our regulations and the authority that 

Congress granted us to review and 

determine whether Wyoming’s regional 

haze SIP complied with the minimum 

statutory and regulatory requirements. 

To the extent a cost analysis relies on 

values that are inaccurate, a state has 

not considered cost in a reasoned or 

reasonable fashion. To the extent a state 

has considered visibility improvement 

from potential emissions controls in a 

way that substantially understates the 

improvement or does so in a way that 

is not consistent with the CAA, the state 

has not considered visibility 

improvement in a reasoned or 

reasonable fashion. In these 

circumstances—as discussed in more 

detail in the proposed notice and this 

final notice—EPA is required to 

disapprove the relevant aspects of the 

SIP. In determining SIP adequacy, we 

must exercise our judgment and 

expertise regarding complex technical 

issues, and it is entirely appropriate that 

we do so. Courts have recognized this 

necessity and deferred to our exercise of 

discretion when reviewing SIPs. See, 

e.g., Connecticut Fund for the Env’t., 

Inc. v. EPA, 696 F.2d 169 (2nd Cir. 

1982); Michigan Dep’t. of Envtl. Quality 

v. Browner, 230 F.3d 181 (6th Cir. 2000); 

Mont. Sulphur & Chem. Co. v. EPA, 

2012 U.S. App. LEXIS 1056 (9th Cir. 

Jan. 19, 2012). 

Comment: One commenter asserted 

that the U.S. Court of Appeals for the 

D.C. Circuit’s decision to vacate CSAPR 

is relevant to the Wyoming FIP. EME 

Homer City Generation, L.P. v. EPA., 

696 F.3d 7 (D.C. Cir. 2012), cert. granted 

570 U.S. (June 24, 2013) (No. 12–1182) 

(CSPAR Decision), and stated that EPA’s 

proposed Wyoming FIP exceeds EPA’s 

statutory authority. The commenter also 

states that in vacating CSAPR, the D.C. 

Circuit held that EPA’s ‘‘FIP-first’’ 

approach exceeds EPA’s authority 

because EPA issued a FIP at the same 

time it determined the emission 

reduction parameters that the states 

were supposed to implement. The 

commenter stated that EPA’s theory was 

that EPA can define the end goals and 

simultaneously issue federal plans to 

implement them, upending that process 

and placing the Federal Government 

firmly in the driver’s seat at both steps. 

Other commenters stated that the D.C. 

Circuit’s rejection of the CSAPR rule is 

irrelevant to EPA’s regional haze 

rulemaking for Wyoming. They asserted 

that the regional haze program differs 

from the CAA’s good-neighbor provision 

in fundamental ways that make the 

court’s rejection of CSAPR irrelevant to 

EPA’s action on Wyoming’s regional 

haze plan. The commenters stated that 

the CAA’s visibility provisions establish 

a technology-based standard for eligible 

major sources, including PacifiCorp’s 

coal-fired power plants in Wyoming. 

See 42 U.S.C. 7491(b)(2)(A). To help 

achieve ‘‘reasonable progress’’ toward 

the national visibility goal, eligible 

sources must install BART for hazecausing pollutants. Id. BART is defined 

as: ‘‘an emission limitation based on the 

degree of reduction achievable through 

the application of the best system of 

continuous emission reduction for each 

pollutant which is emitted by an 

existing stationary facility.’’ 40 CFR 

51.301. The emission limitation must be 

established on a case-by-case basis, 

taking into consideration the technology 

available, the costs of compliance, the 

energy and non-air quality 

environmental impacts of compliance, 

any pollution control equipment in use 

or in existence at the source, the 

remaining useful life of the source, and 

the degree of improvement in visibility 

which may reasonably be anticipated to 

result from the use of such technology. 

Unlike the D.C. Circuit’s interpretation 

of the good-neighbor provision, the 

BART definition establishes a floor for 

emissions reductions, but no ceiling. 

States must ensure that eligible sources 

install the best pollution control 

devices. 

These commenters also argued that 

when a SIP fails to establish a program 

that meets CAA requirements, then EPA 

has an obligation to promulgate a FIP. 

Here, they argued, EPA carried out its 

statutory duty in proposing a partial FIP 

for Wyoming. EPA’s role is not mere 

‘‘rubber-stamping’’ of poor SIPs. EPA 

‘‘has a duty to evaluate the adequacy of 

the existing SIP as a whole when 

approving SIP revisions.’’ Ass’n of 

Irritated Residents v. EPA, 632 F.3d 584, 

591 (9th Cir. 2011). A FIP ‘‘fill[s] all or 

a portion of a gap or otherwise correct[s] 

all or a portion of an inadequacy in a 

State implementation plan.’’ 42 U.S.C. 

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18 In response to another D.C. Circuit decision, 

Center for Energy and Economic Development v. 

EPA, 398 F.3d 653 (D.C. Cir. 2005), EPA revised the 

RHR’s provisions governing alternatives to sourcespecific BART determinations on October 13, 2006. 

These revisions did not alter the requirements for 

source-specific BART determinations that apply to 

Wyoming’s BART determinations at issue here. 

19 40 CFR Part 51, Appendix Y. While the 

Guidelines are only mandatory for fossil fuel-fired 

electric generating plants with a total generating 

capacity in excess of 750 megawatts, States are 

encouraged to follow the BART Guidelines in 

making BART determinations for other types of 

sources. Id. section I.H. The Guidelines also set 

specific presumptive limits for SO2 and NOX for 

these large power plants, but allow states to apply 

more or less stringent limits based upon sourcespecific five-factor analyses. 70 FR 39131–39132. 

20Memo from Joseph W. Paise Regarding 

Regional Haze Regulations and Guidelines for 

BART (July 19, 2006); Additional Regional Haze 

Questions (Guidance) (Sept. 27, 2006). In addition, 

EPA issued final ‘‘Guidance for Setting Reasonable 

Progress Goals Under the Regional Haze Program’’ 

on June 1, 2007, but this Guidance is not directly 

relevant for individual BART determinations. 

21See, e.g., 76 FR 36450 (Nevada); 77 FR 24794 

(New York); 76 FR 13944 (California); 77 FR 11798 

(Rhode Island); 76 FR 27973 (Delaware); 77 FR 

12770 (Nebraska); 77 FR 18052 (Colorado); 76 FR 

16168 (Oklahoma); 77 FR 11914 (Vermont); 77 FR 

11928 (Wisconsin); 76 FR 52604 (Kansas); 76 FR 

64186 (Arkansas); 77 FR 11839 (Maryland); 76 FR 

58570 (North Dakota); 77 FR 3966 (Illinois); 76 FR 

76646 (South Dakota). EPA proposed limited 

approval and limited disapproval of the Regional 

Haze SIPs of states covered by the Clean Air 

Interstate Rule (CAIR), due to the remand of CAIR 

by the D.C. Circuit. See, e.g. 77 FR 3691 (Jan. 25, 

2012) (proposing limited approval and limited 

disapproval of Virginia’s Regional Haze SIP). 

22See, e.g., 76 FR 34608 (California); 76 FR 42557 

(Delaware); 76 FR 80754 (Kansas); 77 FR 19 (New 

Jersey); 77 FR 5191 (District of Columbia); 77 FR 

14604 (Arkansas); 77 FR 17334 (Nevada); 77 FR 

24845 (South Dakota); 77 FR 40150 (Nebraska); 77 

FR 51915 (New York). 

23As presented elsewhere in this final notice and 

in the docket, the five NOX BART determinations 

we are disapproving are for the following: 

PacifiCorp Dave Johnston Unit 3, PacifiCorp 

Wyodak Unit 1, and Basin Electric Laramie River 

Units 1, 2, and 3. 

24As presented elsewhere in this final notice and 

in the docket, the four elements of the State SIP we 

are disapproving include: (1) Wyoming’s RPGs; (2) 

The State’s monitoring, recordkeeping, and 

reporting requirements in Chapter 6.4 of the SIP; (3) 

portions of the State’s long term strategy (LTS) that 

rely on or reflect other aspects of the regional haze 

SIP that we are disapproving; and (4) the provisions 

necessary to meet the requirements for the 

coordination of the review of the reasonably 

attributable visibility impairment (RAVI) and the 

regional haze LTS. 

25 690 F.3d at 679, 682, 686. 

7602(y) (emphasis added). In proposing 

to reject many of Wyoming’s inadequate 

BART determinations, and proposing a 

partial FIP, EPA is merely acting to 

fulfill its own regulatory obligations 

under the Act. 

Response: With respect to the 

comment that we lacked authority to 

promulgate a FIP due to the D.C. 

Circuit’s decision in EME Homer City, 

we disagree. In EME Homer City, the 

D.C. Circuit vacated CSAPR, which was 

promulgated by EPA to address 

interstate transport of SO2 and NOX

under CAA section 110(a)(2)(D). The 

court found that CSAPR exceeded EPA’s 

authority under section 110 because the 

rule had the potential to require upwind 

States to reduce emissions by more than 

their own significant contributions to 

downwind nonattainment and because 

EPA had not given states an opportunity 

to submit SIPs after EPA had quantified 

their obligations for emissions 

reductions. 

In the regional haze context, by 

contrast, EPA defined states’ obligations 

under the RHR and the BART 

Guidelines well in advance of its 

findings of failure to submit and 

subsequent SIP disapprovals. EPA 

promulgated the original RHR on July 1, 

1999 (64 FR 35714). Following the D.C. 

Circuit’s decision in American Corn 

Growers, EPA revised the RHR and 

issued the final BART Guidelines on 

July 6, 2005. (70 FR 39104). The revised 

RHR and the BART Guidelines were 

upheld by the D.C. Circuit in Utility Air 

Regulatory Group v. EPA, 471 F.3d 1333 

(D.C. Cir. 2006).18 As explained in our 

proposal and elsewhere in this 

document, the BART Guidelines 

provide detailed instructions to states 

on how to determine which sources are 

subject to BART and how to analyze the 

five statutory factors in order to set 

emissions limits representing BART for 

each subject-to-BART source.19 In 2006, 

responding to specific questions from 

various states and Regional Planning 

Organizations (RPOs), EPA issued 

further guidance to help states 

implement the RHR and BART 

Guidelines.20

As noted in prior responses, EPA 

issued a finding of failure to submit for 

regional haze SIPs on January 15, 2009 

(74 FR 2392), triggering a FIP clock 

under CAA section 110(c). By this time, 

states already had more than three years 

since issuance of the final BART 

Guidelines to develop their regional 

haze SIPs. By the time the FIP clock 

actually ran out in January 2011, EPA 

had received regional haze SIPs from 

nearly every state. EPA has since 

proposed and approved, in part or in 

whole, the vast majority of these 

SIPs.21 22 This stands in contrast to the 

situation in EME Homer City, where the 

court noted that, ‘‘every Transport Rule 

State that submitted a good neighbor SIP 

for the 2006 24-hour PM2.5 NAAQS was 

disapproved.’’ Thus, it is clear that 

states had ample opportunity to submit 

approvable regional haze SIPs before 

EPA was obligated to promulgate 

regional haze FIPs under CAA section 

110(c). 

One commenter also pointed to the 

D.C. Circuit’s general statements 

concerning state and federal roles under 

the CAA and argues that EPA has 

exceeded its statutorily mandated role 

in proposing to disapprove portions of 

Wyoming’s regional haze SIP and 

promulgate a FIP. While we agree that 

the general principles concerning state 

and federal roles under Title I of the 

CAA apply to our action here, we do not 

agree that our action is inconsistent 

with those principles. In this action, we 

are fulfilling our statutory duty to 

review Wyoming’s regional haze SIP, 

including its BART determinations, for 

compliance with the applicable 

requirements of the CAA and the RHR, 

and to disapprove any portions of the 

plan that do not meet those 

requirements. Based on our review of 

the SIP, we proposed to determine that 

certain elements of Wyoming’s regional 

haze SIP did meet the requirements of 

the CAA and the RHR, and we proposed 

to approve those elements. However, for 

the reasons explained in detail in our 

proposed notices and elsewhere in this 

document, we have concluded that five 

of Wyoming’s BART determinations 23

and four elements of the regional haze 

SIP 24 did not comply with the 

requirements of the CAA and the RHR. 

Based on these findings, we are required 

to disapprove these portions of 

Wyoming’s regional haze SIP. As 

discussed in detail in several below 

responses, the CAA provides EPA with 

the authority to review and reject an 

inadequate regional haze SIP. Oklahoma 

v. EPA, 723 F.3d 1201, 1207 (10th Cir. 

2013). 

Comment: One commenter stated that 

the limits on EPA’s authority to reject a 

SIP were affirmed by the Fifth Circuit in 

Texas v. EPA, 690 F.3d 670 (5th Cir. 

2012), vacating EPA’s rejection of a 

Texas SIP revision implementing its 

minor new source review program (i.e., 

the Texas Flexible Permit Program). In 

the Texas decision, the court reaffirmed 

the principle that if a SIP or SIP revision 

meets the statutory criteria of the CAA, 

then EPA must approve it. The 

Wyoming regional haze SIP meets the 

statutory criteria of the CAA. Therefore, 

EPA’s disapproval of the Wyoming 

regional haze SIP exceeds EPA’s 

statutory authority. 

Response: In Texas, the Fifth Circuit 

found that EPA had failed to tie its 

disapproval to any specific requirement 

in the CAA or EPA’s implementing 

regulations.25 In this action, our 

disapproval is based explicitly and 

squarely on the SIP’s failure to comply 

with the CAA section 169A(b)(2)(A), as 

implemented through the RHR and the 

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BART Guidelines. Just because a court 

found EPA’s disapproval invalid in one 

case does not mean that finding applies 

in all cases. This situation involves a 

very different program under the CAA 

and a very different state submittal and 

review. The Texas case does not involve 

BART or the CAA’s regional haze 

provisions at all. Rather, it involved 

EPA’s disapproval of SIP revisions 

involving Texas’s minor new source 

review program. There are a limited 

number of specific requirements in EPA 

rules for minor source review programs. 

In contrast, regional haze SIPs and 

BART determinations are subject to the 

detailed requirements set forth in CAA 

section 169A, the RHR, and the BART 

Guidelines. 

Comment: One commenter stated that 

the CSAPR decision criticized the 

CSAPR’s FIP-first approach because it 

forces states to ‘‘take a stab in the dark’’ 

on their compliance obligations only to 

be judged later whether they hit the 

mark. As the D.C. Circuit explained in 

the CSAPR decision, a ‘‘SIP logically 

cannot be deemed to lack a required 

submission or deemed to be deficient 

for failure to meet . . . [an] obligation 

before EPA quantifies the . . . 

obligation.’’ EME Homer City 

Generation, L.P. v. EPA., 696 F.3d 7, 49 

(D.C. Cir. 2012), cert. granted 570 U.S. 

(June 24, 2013) (No. 12–1182) 

(hereinafter ‘‘CSPAR Decision’’). 

Other commenters reject this 

assertion, explaining that Wyoming was 

not forced to take a ‘‘stab in the dark’’ 

in developing its regional haze SIP. In 

EME Homer City, the D.C. Circuit 

accepted the state petitioners’ argument 

that they had no obligation to submit 

SIPs until after EPA defined each state‘s 

contribution to interstate pollution and 

the necessary emissions reductions to 

address that contribution. EME Homer 

City, 2012 WL 3570721, at *18 

(‘‘[L]ogically, a SIP cannot be deemed to 

lack a required submission . . . until 

after EPA has defined the State‘s good 

neighbor obligation.’’; ‘‘There is no way 

for an upwind State to know its 

obligation . . . until EPA defines it.’’). 

Response: We do not agree that 

Wyoming was forced to take a ‘‘stab in 

the dark’’ in developing its regional 

haze SIP. The regional haze program 

and the interstate transport obligations 

under the CAA are quite different. The 

states’ regional haze obligations have 

been clearly defined. EPA issued BART 

Guidelines establishing detailed 

parameters for state BART 

determinations in 2005. Commenter’s 

charge that EPA may never issue a FIP 

in such circumstances is incorrect. We 

explain in detail above how the CAA’s 

visibility provisions and EPA’s 

implementing regulations differ from 

the good-neighbor provision at issue in 

EME Homer City. Wyoming was well 

aware of these requirements as it 

developed its regional haze SIP, through 

EPA comment letters and meetings 

between EPA and the State. Finally, 

unlike the petitioners in EME Homer 

City, none of the commenters here 

dispute that Wyoming’s regional haze 

SIP and BART determinations were 

‘‘required submission[s].’’ 

Comment: One commenter stated that 

the CSAPR decision also made clear that 

any FIP issued by EPA must be related 

to the ‘‘end goal of the statute.’’ The D.C. 

Circuit stated in the CSAPR decision: 

‘‘[T]he end goal of the statute is 

attainment in the downwind state. 

EPA’s authority to force reductions on 

upwind states ends at the point where 

the affected downwind State achieves 

attainment.’’ CSAPR Decision at p. 25. 

The ‘‘end goal’’ of the regional haze 

statutory requirements is to gradually 

achieve ‘‘natural visibility’’ conditions 

by the year 2064 under an emission 

reduction approach known as 

reasonable progress as determined by 

the states. EPA’s rush in the proposed 

Wyoming FIP to front-load as many 

emission reductions as possible in the 

first five years of this decades-long 

program is a clear indication that EPA 

has lost sight of the ‘‘end goal’’ of the 

regional haze program. Likewise, EPA’s 

failure to account for, and properly 

address, other causes of visibility 

impairment in its FIP, such as natural 

causes (forest fires), out of state sources, 

oil and gas sources, etc., demonstrates 

that EPA has lost focus on the ‘‘end 

goal’’ of the regional haze program. 

EPA’s proposed Wyoming FIP violates 

this ‘‘end goal’’ principle espoused by 

the CSAPR decision. 

Response: EPA is required to evaluate 

BART factors included in state SIPs 

(e.g., ultimately rejecting 

methodological flaws and data flaws in 

estimating costs of compliance and 

visibility, as we have done in this final 

action), where the flaws in the analysis 

prevented the State of Wyoming from 

conducting meaningful consideration of 

the BART factors, as required by the 

BART Guidelines, and moored to the 

CAA’s BART and SIP provisions. North 

Dakota v. EPA, 730 F.3d 750, 761 (8th 

Cir. 2013). 

Furthermore, we do not agree that one 

provision of the CAA should be read 

and applied in isolation. The 

commenter’s position would ignore the 

rest of the CAA’s statutory requirements 

and violate the ‘‘fundamental canon of 

statutory construction that the words of 

a statute must be read in their context 

and with a view to their place in the 

overall statutory scheme.’’ A court must 

therefore interpret the statute ‘‘as a 

symmetrical and coherent regulatory 

scheme,’’ and ‘‘fit, if possible, all parts 

into an harmonious whole.’’ FDA v. 

Brown & Williamson Tobacco Corp., 529 

U.S. 120, 133 (2000) (quoting Davis v. 

Michigan Depart of Treasury, 489 U.S. 

803, 809 (1989); Gustafson v. Alloyd 

Co., 513 U.S. 561, 569 (1995); and FTC 

v. Mandel Brothers, Inc., 359 U.S. 385, 

389 (1959)). The commenter’s claim that 

one provision in the CAA overrides all 

other statutory provisions is unfounded 

and not supported by the CAA. In 

particular, the statutory requirements 

for BART are separate and distinct from 

the statutory requirements for 

reasonable progress. 

Moreover, as explained elsewhere in 

this document, EPA’s action fully 

accounts for other causes of visibility 

impairment. With respect to wildfires, 

we explain in detail elsewhere in this 

document the role that fires play in 

determining natural background 

conditions. With respect to oil and gas 

sources, we are approving the State’s 

determination to not impose controls on 

this source category during this 

planning period, in part because the 

State already applies minor source 

BACT to many of them through the 

State’s SIP-approved minor NSR 

program, and in part because controls 

on these sources are not so cost-effective 

that we are prepared to say the State 

was unreasonable. With respect to 

accounting for out-of-state sources, we 

cited sources outside the Western 

Regional Air Partnership (WRAP) 

domain as one factor that made it 

reasonable for our RPGs to fall short of 

the uniform rate of progress (URP) and 

unreasonable to achieve the URP. 

Finally, we note that we are approving 

some of Wyoming’s BART 

determinations and all of Wyoming’s 

reasonable progress determinations. 

Additionally, BART is required in the 

first planning period, which ends in 

2018, and is required to be installed as 

expeditiously as practicable, but in no 

event later than five years after the 

effective date of this final notice. In light 

of the fact that many of Wyoming’s 

Class I areas are not even expected to 

meet the URP this planning period, the 

notion that EPA has required ‘‘frontloading’’ of controls is utterly without 

merit. 

Comment: Some commenters stated 

that the CSAPR decision considered, 

and then rejected, a ‘‘reasonableness’’ 

standard put forth by EPA as the only 

limit on its authority to impose 

emission reductions under the CSAPR. 

CSAPR Decision at p. 37, ftnt. 23. EPA 

likewise purports to impose a 

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reasonableness standard as adequate 

justification for rejecting the Wyoming 

regional haze SIP and imposing a FIP. 

The CSAPR decision makes clear that 

such a reasonableness standard, not 

included in the CAA itself, does not 

have a place in justifying EPA’s actions 

in issuing a FIP. For this added reason, 

the CSAPR decision makes clear the FIP 

exceeds EPA’s statutory authority. 

Response: EPA disagrees with this 

comment. First, the commenters 

misunderstand the cited footnote in the 

CSAPR decision. In the D.C. Circuit’s 

view, EPA ignored statutory limits on its 

authority and instead claimed that 

reasonableness was the only bound on 

EPA’s authority. Here, EPA makes no 

such claim. EPA, of course, has the 

authority and the duty to review 

Wyoming’s SIP for compliance with the 

CAA and the RHR. 

In reviewing the Wyoming regional 

haze SIP, EPA has determined that a 

‘‘reasonableness’’ standard is in fact 

harmonious with the CAA and the RHR, 

and the courts have agreed. Oklahoma 

v. EPA, 723 F.3d 1201, 1207 (10th Cir. 

2013) (‘‘The EPA therefore had a 

reasonable basis for rejecting the 2008 

Cost Estimates [that were based on the 

overnight costing method] as not 

complying with the guidelines.’’); see 

also North Dakota v. EPA, 730 F.3d 750, 

761 (8th Cir. 2013) (explaining EPA is 

not required to ‘‘approve a BART 

determination that is based upon an 

analysis that is neither reasoned nor 

moored to the CAA’s provisions’’). 

The CAA requires states to submit 

SIPs that contain such measures as may 

be necessary to make reasonable 

progress toward achieving natural 

visibility conditions, including BART. 

The CAA accordingly requires the states 

to submit a regional haze SIP that 

includes BART as one necessary 

measure for achieving natural visibility 

conditions. See Alaska Dep’t of Envtl. 

Conservation v. EPA, 540 U.S. 461, 500 

(2004) (in a related context, holding that 

EPA validly issued stop work orders 

because the state’s BACT determination 

‘‘simply did not qualify as reasonable in 

light of the statutory guides.’’ (emphasis 

added)) (hereinafter ‘‘ADEC’’). Thus we 

are not establishing a new 

reasonableness standard, as the 

commenter asserts. 

Comment: In the CSPAR decision, the 

D.C. Circuit found it ‘‘inconceivable’’ 

that Congress would bury in the CAA 

‘‘an open-ended authorization for EPA 

to effectively force every power plant in 

the upwind States to install every 

emissions control technology EPA 

deems ‘cost effective’.’’ CSAPR Decision 

at p. 40. In so finding, the court refused 

to transform a ‘‘narrow’’ provision into 

a ‘‘broad and unusual’’ authority that 

would overtake other core provisions of 

the Act.’’ Id. Similarly, it is 

inconceivable in the regional haze 

context that Congress would bury an 

open-ended authorization allowing EPA 

to ignore its own BART Guidelines, 

overrun carefully crafted state regional 

haze SIPs and BART determinations, 

and require the installation of expensive 

emission controls which result in 

minimal regional haze improvements. 

This principle espoused in the CSAPR 

decision is particularly applicable in the 

regional haze context where, just like in 

the CSAPR, EPA’s BART determinations 

in the Wyoming FIP are ‘‘not a clear 

numerical target—far from it—until EPA 

defines the target.’’ CSAPR Decision at 

p. 48. And in spite of EPA initially 

helping to define ‘‘the target’’ by issuing 

its BART Guidelines (which EPA 

subsequently ignored), EPA did not 

begin to redefine the target until it began 

to issue various determinations around 

the country in reaction to various state 

regional haze SIPs. Even then, EPA’s 

‘‘target’’ is not clear and certainly is 

impossible to determine, on a state or 

source-by-source basis, until EPA sets 

the target in a state-specific FIP. 

Like the upwind states in the CSAPR 

decision, it was ‘‘impossible’’ for 

Wyoming to determine its regional haze 

obligation ‘‘until EPA defined it.’’ Id. 

This process effectively allows EPA to 

impose any standard it wants with little 

ability for the states (or sources) to 

achieve the redefined target through a 

state-led process because of the tight 

deadlines imposed by EPA as a result of 

negotiated consent decree deadlines. 

Response: We do not agree that we 

have ignored the CAA and BART 

Guidelines. As explained in our 

proposed notice and elsewhere in this 

document, our decisions are firmly 

grounded on the CAA provisions and 

BART Guidelines, and Wyoming was 

well aware of these requirements as it 

developed its SIP. In addition, the 

comparison of BART determinations 

and the CSAPR decision is not 

appropriate. In contrast to CSPAR, the 

CAA and RHR do not set specific 

numerical targets for BART 

determinations. Instead, they require 

states to reasonably consider the five 

statutory factors, which, as we have 

detailed in our proposal and in our 

response to comments, Wyoming did 

not do. Furthermore, EPA provided 

extensive comments to the State on the 

proposed regional haze SIP and met 

with the State on numerous occasions, 

so the State was aware of EPA’s 

concerns regarding approvability before 

the SIP was submitted to EPA. As 

explained below in greater detail, the 

Consent Decree that covers this action 

has not hindered Wyoming’s ability to 

develop and submit an approvable SIP. 

Wyoming can submit new SIP revisions, 

and request that EPA review and 

approve them, to replace the FIP 

elements at any time. 

To the extent that the comment argues 

that the RHR itself is invalid for similar 

reasons to those for which the D.C. 

Circuit vacated CSAPR, the time to 

make those arguments has passed. 

Finally, in establishing the BART 

requirements, Congress was addressing 

a category of large sources that predated the modern NSR affected sources, 

which were determined to significantly 

contribute to regional haze and set an 

expectation that included consideration 

of cost, feasibility, and effect on regional 

haze (as well as the other five factors) 

for those sources, many of which did 

not have modern pollution controls 

because of their age and because they 

hadn’t been addressed through ozone 

SIPs the way so many eastern sources 

had. This is one of the reasons why the 

western regional haze SIPs are seeing 

emission controls. 

Comment: One of the commenters 

stated that one of the key conclusions of 

the CSAPR decision was that EPA 

exceeded the scope of its authority by 

requiring emission reductions beyond 

the statutory or regulatory requirements. 

In the CSAPR decision, the court looked 

at the fact that once EPA had 

determined that an upwind emission 

source contributed ‘‘significantly’’ to 

nonattainment or maintenance of the 

standard in a downwind state; it was 

‘‘in’’ for purposes of requiring emission 

reductions. The emission reduction 

requirements were then based on costeffectiveness thresholds that were 

applied uniformly throughout the 

CSAPR region. In other words, all 

emissions that could be reduced, for 

example, for a cost between $1 and $500 

per ton were effectively required. The 

court held that this approach resulted in 

a situation where some sources had to 

bear a disproportionate amount of costs, 

based on their relative contribution to 

the nonattainment or maintenance 

problem. 

Similarly in the regional haze context, 

EPA established an ‘‘in or out’’ criteria 

of a 0.5 deciview impact. Sources with 

modeling results that suggested the 

impact was greater than 0.5 were ‘‘in’’ 

and required further analysis. If, under 

EPA’s FIP approach, the facilities could 

cost-effectively (as determined by EPA, 

not the states) control emissions, they 

were required to do so. Oftentimes, EPA 

has required the controls 

notwithstanding the negligible 

contribution the emission reductions 

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26 40 CFR part 51, appendix Y, section III.A.1. 

27CAA section 169A(b)(2)(A), 42 U.S.C. 

7491(b)(2)(A). 

28 42 U.S.C. 7491(g)(2). 

29 40 CFR 51.308(e)(1)(ii)(A). 

will have towards meeting the 

requirement of the RHR. EPA’s 

conclusions requiring individual 

sources to reduce emissions under its 

subjective cost-effectiveness criteria 

have no relationship to visibility 

impacts or improvements, and EPA 

failing to conduct that modeling, but 

supporting a determination of 

reasonableness of controls ‘‘based on the 

high cost effectiveness at each of the 

units.’’ 77 FR at 33034, 33038 and 

33055. 

EPA’s conclusions regarding emission 

reductions that are based on the costeffectiveness of controls without an 

appropriate linkage to visibility 

improvement and meeting the goals and 

objectives of the RHR exceed EPA’s 

statutory authority as suggested by the 

CSAPR decision. 

Response: We agree with some of this 

comment and disagree with other 

portions. As an initial matter, as we 

explained in our proposed notice, we 

note that: 

Wyoming used a contribution threshold of 

0.5 deciviews for determining which sources 

are subject-to-BART. By using a contribution 

threshold of 0.5 deciviews, Wyoming 

exempted seven of the fourteen BARTeligible sources in the State from further 

review under the BART requirements. Based 

on the modeling results, the State determined 

that P4 Production, FMC Granger, and OCI 

Wyoming had an impact of .07 deciview, 

0.39 deciview, and 0.07 deciview, 

respectively, at Bridger Wilderness. Black 

Hills Neil Simpson 1, Sinclair Casper 

Refinery, and Sinclair—Sinclair Refinery 

have an impact of 0.27 deciview, 0.06 

deciview, and 0.12 deciview, respectively, at 

Wind Cave. Dyno-Nobel had an impact of 

0.22 deciview at Rocky Mountain National 

Park. These sources’ modeled visibility 

impacts fell below the State’s threshold of 0.5 

deciview and were determined not to be 

subject-to-BART. 78 FR 34747 

Since the State’s approach is consistent 

with the BART Guidelines 26 and given 

the relatively limited impact on 

visibility from these seven sources, as 

explained earlier in this document and 

in our proposals, we are finalizing our 

proposal to approve Wyoming’s 

threshold of 0.5 deciviews as reasonable 

for determining whether its BARTeligible sources are subject-to-BART. 78 

FR 34734, 34747 

We do not agree that our decision 

exceeds our statutory authority and the 

goals and objectives of the RHR. CAA 

section 110(a)(2)(J) requires each plan 

submitted by a state to ‘‘meet the 

applicable requirements’’ of Part C of 

Title I of the CAA, including those for 

‘‘visibility protection.’’ In the case of a 

regional haze SIP submittal, the 

‘‘applicable requirements’’ include the 

requirement that each source found 

subject-to-BART, ‘‘procure, install, and 

operate, as expeditiously as practicable 

(and maintain thereafter) the best 

available retrofit technology . . .’’ 27

Section 169A(g)(2) further provides that: 

In determining best available retrofit 

technology the State (or the Administrator in 

determining emission limitations which 

reflect such technology) shall take into 

consideration the costs of compliance, the 

energy and non-air quality environmental 

impacts of compliance, any existing 

pollution control technology in use at the 

source, the remaining useful life of the 

source, and the degree of improvement in 

visibility which may reasonably be 

anticipated to result from the use of such 

technology.28

Similarly, the RHR provides that: 

The determination of BART must be based 

on an analysis of the best system of 

continuous emission control technology 

available and associated emission reductions 

achievable for each BART-eligible source that 

is subject to BART within the State. In this 

analysis, the State must take into 

consideration 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 improvement 

in visibility which may reasonably be 

anticipated to result from the use of such 

technology.29

Wyoming’s BART determinations for 

NOX at five BART units fall short of 

these requirements in several respects. 

First, Wyoming did not analyze the 

‘‘best system of continuous emission 

control technology available and 

associated emission reductions 

achievable.’’ This is explained in detail 

in our proposed rulemaking, the docket 

for this action, and elsewhere in this 

document. Therefore, Wyoming has not 

demonstrated that its BART 

determinations were ‘‘based on an 

analysis of the best system of 

continuous emission control technology 

available and associated emission 

reductions achievable.’’ 

For example, as we explained in our 

proposed notices and elsewhere in this 

final action, Wyoming did not 

appropriately consider the ‘‘degree of 

improvement in visibility which may 

reasonably be anticipated’’ from 

installation of BART because it did not 

provide visibility improvement 

modeling from which the benefits of 

individual NOX controls could be 

ascertained. Thus Wyoming’s BART 

determinations for NOX do not meet the 

requirements of CAA section 169A(g)(2) 

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

Additionally, as explained in our 

proposed notices and elsewhere in the 

modeling section of this final action, it 

was not possible to ascertain the 

visibility improvement from the NOX

control options as the State modeled 

emission reductions for multiple 

pollutants together. For this reason, in 

the modeling conducted by EPA, we 

held SO2 and PM emission rates 

constant (reflecting the ‘‘committed 

controls’’ for those pollutants identified 

by Wyoming), and varied only the NOX

emission rate. This allowed us to isolate 

the degree of visibility improvement 

attributable to the NOX control option. 

In addition, 40 CFR 51.308(e)(1)(ii)(B) 

provides that the determination of 

BART for fossil-fuel fired power plants 

having a total generating capacity 

greater than 750 megawatts must be 

made pursuant to the guidelines in 

appendix Y of part 51 (Guidelines for 

BART Determinations under the 

Regional Haze Rule). 

All of the Wyoming BART sources, 

except Wyodak, each have a generating 

capacity greater than 750 megawatts. 

Therefore, the BART determinations for 

these BART sources must be made 

pursuant to the BART Guidelines. 

However, Wyoming’s BART 

determinations for these sources did not 

fully comply with the BART Guidelines. 

In particular, as explained more fully 

elsewhere in this document, contrary to 

the Guidelines’ admonition that ‘‘cost 

estimates should be based on the CCM, 

where possible,’’ the control cost 

calculations supplied by the utilities 

and relied upon by Wyoming included 

costs not allowed by the CCM, such as 

owner’s costs and Allowance for Funds 

Utilized During Construction (AFUDC). 

Thus, Wyoming’s consideration of the 

‘‘cost of compliance’’ for these units was 

not consistent with the Guidelines. 

Furthermore, as explained elsewhere in 

this document, Wyoming’s 

consideration of visibility benefits was 

inconsistent with the Guidelines 

because the State did not provide 

visibility modeling from which the 

visibility improvement from individual 

controls could be ascertained. Finally, 

for all pollutants at all units covered by 

today’s action, Wyoming’s regional haze 

SIP does not meet the requirements of 

40 CFR 51.308(e)(1)(iv) and (v) because 

it lacks the following elements: 

• A requirement that each source 

subject to BART be required to install 

and operate BART as expeditiously as 

practicable, but in no event later than 5 

years after approval of the 

implementation plan revision. 

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5058 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

• A requirement that each source 

subject to BART maintain the control 

equipment required by this subpart and 

establish procedures to ensure such 

equipment is properly operated and 

maintained. 

These two requirements are 

mandatory elements of the RHR and are 

necessary to ensure that BART is 

procured, installed, and operated as 

expeditiously as practicable and 

maintained thereafter, as required under 

CAA section 169A(b)(2)(A). 

Moreover, the CAA and regional haze 

rule require that SIPs contain provisions 

that make emissions limits, including 

BART limits, practically enforceable. 

CAA section 110(a)(2)(A)–(B) require 

that emissions limits such as BART be 

‘‘practically enforceable’’ and SIPs 

provide for establishment, methods and 

procedures necessary to monitor, 

compile, and analyze data. CAA section 

302(k) requires emissions limits to be 

met on a continuous basis. Additionally, 

CAA section 169A(b)(2) requires that 

regional haze SIPs include ‘‘such 

emission limits, schedules of 

compliance and other reasonable 

measures’’ necessary to meet the goals 

of the regional haze program.’’ As 

discussed in our proposed notices and 

elsewhere in this final notice, 

Wyoming’s regional haze SIP lacks 

requirements for monitoring, 

recordkeeping, and reporting sufficient 

to ensure that the BART limits are 

enforceable and are met on a continuous 

basis. 

Therefore, Wyoming’s BART 

determinations for these five units 

covered by the FIP do not meet the 

BART requirements of the CAA, the 

RHR and the BART Guidelines. 

Additionally, Wyoming’s SIP 

requirements do not ensure the BART 

limits are enforceable for all BART 

sources for which there is a SIP or FIP 

emissions limit, and therefore do not 

meet the requirements of the CAA and 

RHR. Accordingly, we are compelled to 

partially approve and partially 

disapprove Wyoming’s regional haze 

SIP. 

Comment: EPA cannot invoke its 

Section 110 SIP approval authority as 

grounds for rejecting state BART 

determinations with which it disagrees. 

The CAA does not require any specific 

degree of visibility improvement in the 

determination and only requires BART 

for the purpose of eliminating or 

reducing impairment to visibility. See 

CAA Section 169A, 42 U.S.C. 7491. 

Consistent with the long-recognized 

principle that EPA may not ‘‘condition 

approval of the plan of any State, on the 

State’s adoption of a specific control 

measure,’’ Virginia, 108 F.3d at 1408, 

EPA has no statutory authority to 

disapprove a SIP that contains a BART 

determination for an individual facility 

that complies with the statutory BART 

factors. Any other result would allow 

EPA to employ its generalized SIP 

approval authority to ‘‘run roughshod 

over the procedural prerogatives that the 

Act has reserved to the States.’’ 

Bethlehem Steel Corp., 742 F.2d at 1036. 

The fact that states must propose SIP 

revisions ‘‘as may be necessary’’ to 

achieve reasonable progress does not 

mean EPA has authority to countermand 

the textual commitment of specific 

BART decisions to the states. The D.C. 

Circuit interpreted similar language in 

Section 110(k)(5) to constrain EPA’s 

authority over SIP approval and 

disapproval. See Virginia, 108 F.3d at 

1409. The SIP call provisions of Section 

110(k)(5) state that when a SIP is 

inadequate ‘‘the Administrator shall 

require the State to revise the plan as 

necessary to correct such inadequacies.’’ 

But the Virginia court rejected the 

agency’s expansive view of this phrase 

as authority to impose specific control 

measures for specific emission sources. 

Response: States are required by the 

CAA to address the BART requirements 

in their SIP. Our disapproval of the NOX

BART determinations in the Wyoming 

regional haze SIP is authorized under 

the CAA because the State’s NOX BART 

determinations for the five units do not 

satisfy the statutory criteria. The State’s 

analysis of the cost effectiveness of 

controls and visibility analyses were 

flawed due to reasons discussed 

elsewhere in the proposed and final 

notices. While states have authority to 

exercise different choices in 

determining BART, the determinations 

must be reasonably supported. 

Wyoming’s errors in taking into 

consideration the costs of compliance 

were significant enough that we cannot 

conclude the State determined BART 

according to CAA standards. The cases 

cited by the commenters stress 

important limits on EPA authority in 

reviewing SIP submissions, but our 

disapproval of these NOX BART 

determinations for the five units has an 

appropriate basis in our CAA authority. 

We did not require Wyoming to adopt 

specific control measures for specific 

emission sources. Instead, we 

disapproved some of Wyoming’s BART 

determinations for reasons described in 

detail in our proposal and elsewhere in 

our response to comments. To 

promulgate our FIP, EPA then had both 

the authority and the duty to determine 

specific control measures for specific 

sources. 

Finally, contrary to the commenter’s 

assertion, the Bethlehem Steel case is 

inapplicable here. We are promulgating 

BART emission limitations and other 

FIP elements described elsewhere in 

this document under the authority of 

CAA section 110(c), not through our 

action on Wyoming’s SIP. We have 

authority to promulgate our FIP under 

110(c) on two separate grounds: first, 

based on our January 2009 finding of 

failure to submit the regional haze plan 

elements required by 40 CFR 51.309(g), 

the reasonable progress requirements for 

areas other than the 16 Class I areas 

covered by the Grand Canyon Visibility 

Transport Commission Report; and 

second, based on our partial disapproval 

of the regional haze SIP. 

Comment: We received comments 

that EPA does not have the authority 

under the CAA to issue a regional haze 

FIP in this instance. Commenters 

contend that EPA’s role under Section 

110 in reviewing states’ regional haze 

SIPs is narrow and that the CAA 

confines EPA to the ministerial function 

of reviewing SIPs for consistency with 

the CAA’s requirements. Commenters 

assert that Wyoming submitted a 

regional haze SIP that met the 

requirements of Section 51.309 and 

included all the required elements and 

that EPA admits that Wyoming has 

considered all five BART factors. 

Therefore, commenters go on to say that 

EPA’s sole function was to review 

whether Wyoming followed the regional 

haze requirements, including Appendix 

Y, in preparing the Wyoming regional 

haze SIP, and Congress did not 

authorize EPA to ‘‘second guess’’ 

Wyoming’s BART decision making, or 

to substitute its own judgment, simply 

because EPA would prefer different 

BART and reasonable progress NOX

controls. Commenters go on to point out 

that courts have consistently held that 

states are primarily responsible for SIP 

development; EPA’s role is ministerial. 

Commenters cite that the Supreme 

Court has recognized the states’ primary 

role in developing SIPs, holding ‘‘so 

long as the ultimate effect of a State’s 

choice of emission limitations is in 

compliance with the national standards 

for ambient air, the State is at liberty to 

adopt whatever mix of emission 

limitations it deems best suited to its 

particular situation.’’ Train v. NRDC, 

421 U.S. 60, 79 (1975). Commenters 

argue that EPA is going beyond its 

ministerial function of reviewing 

Wyoming’s regional haze SIP for 

consistency with the CAA’s 

requirements; it is attempting to design 

Wyoming’s SIP by establishing new 

NOX emission limits, contrary to its 

promulgated BART regulations. 

Commenters go on to say that EPA 

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30As the commenter mentions, we agree that we 

did approve Wyoming’s regional haze SIP 

submitted under Section 309 of the RHR (40 CFR 

51.309) (77 FR 73926 (Dec. 12, 2012)), as in that 

action we determined the State met the 

requirements of 40 CFR 51.309 and related 

provisions. 

should follow the structure of the CAA 

and give deference to the State’s 

judgment in determining BART in 

Wyoming’s regional haze SIP. 

Response: States are required by the 

CAA to address the BART requirements 

in their SIP. Our disapproval of the NOX

BART determinations in the Wyoming 

regional haze SIP is authorized under 

the CAA because the State’s NOX BART 

determinations for the five units do not 

satisfy the statutory criteria. The State’s 

analyses of the cost effectiveness of 

controls and visibility analyses were 

flawed due to reasons discussed in the 

introduction and BART sections of this 

document. While states have the 

authority to exercise different choices in 

determining BART, the determinations 

must be reasonably supported. 

Wyoming’s errors in taking into 

consideration the costs of compliance 

and visibility analyses were significant 

enough that we cannot conclude the 

State determined BART according to 

CAA standards. The cases cited by the 

commenters stress important limits on 

EPA authority in reviewing SIP 

submissions, but our disapproval of 

these NOX BART determinations for the 

five units has an appropriate basis in 

our CAA authority. 

Comment: Under the CAA, both the 

federal government and the states have 

responsibilities for maintaining and 

improving air quality. The federal 

government has the authority to set 

specific emissions targets, but the states 

have the authority to develop and 

impose their own regulatory structure to 

meet those. As long as the State meets 

its specific criteria, which Wyoming can 

and will show that it has done, the fact 

that EPA does not share the State’s 

opinion regarding the best course of 

action is immaterial. 

This reading of the CAA is the 

opinion of the Congress that passed the 

regional haze program in 1977. 

Committee and floor debate in Congress 

at the time makes clear that Congress 

fully intended for the states to possess 

a high degree of primacy in regional 

haze decisions. The primary sponsor of 

the CAA and 1977 amendments in the 

Senate was the late Senator Edmund 

Muskie, a Democrat from Maine. In his 

opening address to the Senate on the 

Conference Report to the 1977 

amendments, Senator Muskie said, 

‘‘under this legislation, the 

administrator of the EPA will be more 

reliant on local and state capabilities to 

create the institutional and 

infrastructural changes necessary to 

achieve clean air. And perhaps this is as 

it should be. We have learned that there 

is little political support for inartfully 

conceived national measures. We have 

learned that where change can be made, 

it must be made with the full 

understanding and support of the 

people who are affected by that 

change.’’ 

While the courts in some instances 

may not give adequate weight to the 

intent of Congress in drafting 

legislation, Congress’s intent in passing 

the nation’s law is something that 

Congress itself takes very seriously. 

Some courts have honored 

Congressional intent and upheld the 

CAA as a cooperative statute. In 

Appalachia Power Company v. EPA 

[sic], the courts determined that the 

CAA includes a cooperative standard 

they call a federalism bar. In Train and 

Luminant Generation Co., LLC v. EPA, 

675 F.3d 917 (5th Cir. 2012) (hereinafter 

‘‘Luminant’’), the courts held that the 

EPA had no authority to overturn the 

decisions of the states so long as the 

basic requirements of Section 110 are 

met. 

EPA does not have the authority 

under the CAA to issue a regional haze 

FIP in this instance. EPA contends its 

review of the Wyoming SIP is ‘‘pursuant 

to section 110 of the CAA.’’ 78 FR 

34738. Section 110(a)(2) provides the 

general requirements that a SIP must 

contain. Importantly, EPA’s role under 

Section 110 in reviewing states’ regional 

haze SIPs is narrow: ‘‘With regard to 

implementation, the (CAA) confines the 

EPA to the ministerial function of 

reviewing SIPs for consistency with the 

(CAA)’s requirements.’’ Luminant 

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

917, 921 (5th Cir. 2012) (citing section 

110(k)(3)). As the court in Luminant 

explained, if the state’s submissions 

‘‘satisfy those basic requirements (found 

in section 110), the EPA must approve 

them,’’ and ‘‘(t)hat is the full extent of 

the EPA’s authority in the SIP-approval 

process because that is all the authority 

that the CAA confers.’’ Id. at 932. Here, 

Wyoming submitted a regional haze SIP 

that met the requirements of Section 309 

and included all the required elements. 

The Wyoming SIP submittals are well 

developed and comprehensive. EPA 

admits that Wyoming considered all five 

BART factors. 78 FR 34748. Therefore, 

EPA’s role was to review whether 

Wyoming followed the regional haze 

requirements, including Appendix Y, 

and provided factual support for the 

Wyoming regional haze SIP. Congress 

did not authorize EPA to ‘‘second 

guess’’ Wyoming’s BART decision 

making, or to substitute its own 

judgment, simply because EPA would 

prefer different BART and reasonable 

progress NOX controls. 

More recently, the D.C. Court vacated 

the CSAPR. The court’s 2012 opinion in 

the CSAPR case is illustrative for our 

purposes because the EPA used very 

similar arguments to justify their 

authority in CSAPR as they’re using 

today for regional haze. In vacating the 

CSAPR rule, the D.C. Circuit Court 

writes ‘‘under the CAA, the federal 

government sets air quality standards, 

but states retain the primary 

responsibility for choosing how to attain 

those standards within their borders. 

The Act thus leaves it to the individual 

states to determine, in the first instance, 

the particular restrictions that will be 

imposed on particular emitters within 

their borders.’’ The court goes on to 

write that ‘‘. . .the statutory federalism 

bar prohibits the EPA from using the SIP 

process to force states to adopt specific 

control measures.’’ 

Response: We responded to similar 

comments above.30 With respect to 

EPA’s supposed admission that 

Wyoming considered the five BART 

factors, the precise language in the 

proposal notice is: ‘‘We find that 

Wyoming considered all five steps 

above in its BART determinations, but 

we propose to find that its consideration 

of the costs of compliance and visibility 

improvement for the EGUs was 

inadequate and did not properly follow 

the requirements in the BART 

Guidelines and statutory requirements, 

as explained below.’’ 78 FR 34748. With 

respect to the legislative history quoted, 

the comment does not provide any 

connection between the general remarks 

of Senator Muskie regarding the 1977 

Amendments and EPA’s interpretation 

of the visibility provisions in the Act. 

Comment: We received numerous 

general comments that EPA has 

overstepped its authority and that states 

have the responsibility of determining 

what controls are necessary for regional 

haze. 

Response: As explained earlier, the 

states have the responsibility to draft the 

regional haze SIP and EPA has the 

responsibility of ensuring state plans, 

including regional haze SIPs, conform to 

the CAA. As the drafter of the regional 

haze SIP, the State generally has the 

authority to decide how each of the 

BART factors are taken into account and 

weighed. EPA is not disapproving 

Wyoming’s BART determinations 

because we disagree with how Wyoming 

weighed the relevant factors, such as the 

cost of controls or the degree of 

visibility improvement resulting from 

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5060 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

the use of controls. EPA is disapproving 

certain Wyoming BART determinations 

because the State did not consider these 

factors in its BART determinations in 

accordance with the RHR and the Act. 

Comment: EPA’s regional haze FIP 

failed to afford the required deference to 

the technical, policy and other 

discretion granted to Wyoming under 

the CAA and regional haze program. 

Congress added section 169A to the 

CAA in order to address the 

‘‘impairment of visibility’’ in Class I 

areas that ‘‘results from man-made air 

pollution.’’ This provision of the CAA, 

in turn, describes separate roles for EPA, 

the states, and major sources such as 

PacifiCorp’s BART Units. 

EPA’s roles are to create a report, see 

CAA section 169A(a)(2)–(3), create 

regional haze regulations, see CAA 

section 169A(a)(4), provide guidelines 

for the states, see CAA section 

169A(b)(1), and determine whether 

regional haze SIPs submitted by the 

states follow the regulations and 

guidelines, and contain the required 

elements. CAA section 110. The states’ 

roles, which are central to the regional 

haze program, are intended to be 

accomplished using substantial 

discretion which, in turn, requires 

significant deference from EPA. States 

are required to submit a regional haze 

SIP that contains ‘‘emission limits, 

schedules of compliance and other 

measures as may be necessary to make 

reasonable progress toward meeting the 

national goal.’’ CAA section 169A(b)(2). 

States also must ‘‘determine[*thnsp;]’’ 

BART for ‘‘each major stationary 

source.’’ CAA 169A(b)(2)(A). BART 

sources, such as PacifiCorp’s BART 

units, are required to ‘‘procure, install, 

and operate (BART) as expeditiously as 

practicable.’’ CAA section 

169A(b)(2)(A). 

Thus, the CAA mandates that states 

have the primary role in developing 

regional haze SIPs to protect visibility in 

Class I areas. Likewise, the RHR makes 

clear that states have the responsibility 

to create and implement regional haze 

SIPs. In contrast, EPA’s role is to 

develop ‘‘guidelines’’ for the states to 

use in implementing regional haze SIPs 

and to determine whether states 

followed those guidelines. CAA section 

169A(b)(1). In short, the CAA 

anticipates that states, using their 

discretion, develop regional haze SIPs 

using EPA guidelines. This is exactly 

what Wyoming did in issuing BART 

permits and developing the Wyoming 

regional haze SIP. 

In issuing regional haze guidelines, 

EPA recognized the broad discretion 

granted to the states by the CAA. 

Specifically, EPA adopted guidance to 

address BART determinations for 

certain large electrical generating 

facilities, referred to as ‘‘Appendix Y.’’ 

EPA created further guidance in the 

Federal Register responding to 

comments concerning the thenproposed Appendix Y, referred to as the 

‘‘Preamble.’’ EPA recognized in the 

Preamble that ‘‘how states make BART 

determinations or how they determine 

which sources are subject to BART’’ are 

among the issues ‘‘where the Act and 

legislative history indicate that Congress 

evinced a special concern with insuring 

that states would be the decision 

makers.’’ 70 FR 39104, 39137 (July 6, 

2005). 

Likewise, in analyzing the 

applicability of certain executive orders, 

EPA stated that ‘‘ultimately states will 

determine the sources subject to BART 

and the appropriate level of control for 

such sources’’ and that ‘‘states will 

accordingly exercise substantial 

intervening discretion in implementing 

the final rule.’’ Id. at 39155. The U.S. 

Court of Appeals for the D.C. Circuit has 

affirmed that EPA’s role regarding 

regional haze programs is limited and 

that a state’s role is paramount. Indeed, 

the Court found that the CAA ‘‘calls for 

states to play the lead role in designing 

and implementing regional haze 

programs.’’ American Corn Growers 

Ass’n v. E.P.A., 291 F.3d 1, 2 (D.C. Cir. 

2002). The court also reversed a portion 

of EPA’s original RHR because it found 

that EPA’s method of analyzing 

visibility improvements distorted the 

statutory BART factors and was 

‘‘inconsistent with the Act’s provisions 

giving the states broad authority over 

BART determinations.’’ Id. at 8; (see 

also Utility Air Regulatory Group v. 

EPA, 471 F.3d 1333, 1336 (D.C. Cir. 

2006) (The second step in a BART 

determination ‘‘requires states to 

determine the particular technology that 

an individual source ‘subject to BART’ 

must install.’’)). The court in American 

Corn Growers emphasized that Congress 

specifically entrusted states with 

making BART five-factor analysis 

decisions: ‘‘[t]o treat one of the five 

statutory factors in such a dramatically 

different fashion distorts the judgment 

Congress directed the states to make for 

each BART-eligible source.’’ American 

Corn Growers, 291 F.3d at 6. 

The court in American Corn Growers 

also outlined the relevant legislative 

history that recounts a specific 

agreement reached in Congress which 

granted this authority to the states: ‘‘The 

‘agreement’ to which the Conference 

Report refers was an agreement to reject 

the House bill’s provisions giving EPA 

the power to determine whether a 

source contributes to visibility 

impairment and, if so, what BART 

controls should be applied to that 

source. Pursuant to the agreement, 

language was inserted to make it clear 

that the states—not EPA—would make 

these BART determinations. The 

Conference Report thus confirms that 

Congress intended the states to decide 

which sources impair visibility and 

what BART controls should apply to 

those sources. The RHR attempts to 

deprive the states of some of this 

statutory authority, in contravention of 

the Act.’’ Id. at 8. EPA’s FIP action 

makes the same mistake and, if 

finalized, will be similarly reversible. 

In sum, based on the language in the 

CAA, the RHR, EPA’s own guidelines, 

and case law, the states have significant 

discretion when creating regional haze 

SIPs. 

Response: We responded to similar 

comments above and elsewhere in this 

document. 

Comment: EPA failed to properly 

account for that discretion in analyzing 

the Wyoming regional haze SIP. EPA 

should have acknowledged that the 

Wyoming regional haze SIP followed 

the law and was supported by the facts. 

Examples of EPA ignoring Wyoming’s 

discretion include: Visibility 

improvement; cost effectiveness 

analysis; modeling; application of the 

five BART factors; and reasonable 

progress analyses. 

Response: We responded to similar 

comments above and elsewhere in this 

document. 

Comment: EPA’s proposed action 

ignores the congressional commitment 

to have local decisions under the CAA— 

particularly those relating to BART— 

made by the states. States have the 

primary responsibility for preventing air 

pollution under the CAA. CAA section 

101(a)(3), 42 U.S.C. 7401(a)(3). Pursuant 

to this principle, states, not EPA, have 

always had primary control over 

decisions to impose specific emission 

limits (and therefore specific pollution 

control technologies) for individual 

facilities. By congressional design, 

under the CAA EPA ‘‘is relegated . . . 

to a secondary role in the process of 

determining and enforcing the specific, 

source-by-source emission limitations 

which are necessary [to meet] national 

standards.’’ Train v. NRDC, 421 U.S. 60, 

79 (1975) (hereinafter ‘‘Train’’). This 

basic division of responsibilities 

between EPA and the States remained 

unchanged when Congress amended the 

Act in 1977 and again in 1990. See 

Virginia v. EPA, 108 F.3d 1397, 1408– 

10 (D.C. Cir. 1997). 

Congress took this principle a step 

further under the regional haze program, 

specifically directing that BART is to be 

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31The conference agreement also revised the 

language ‘‘except as otherwise provided pursuant to 

subsection (c), a requirement that each major 

stationary source (as defined in section 302(o)) 

which is in existence on the date of enactment of 

this section, but which has not been in operation 

for more than 15 years as of such date’’ in H.R. 6161 

to its present form. This revision does not affect any 

issue raised by the commenter. 

‘‘determined by the State.’’ CAA section 

169A(b)(2)(A), 42 U.S.C. section 

7491(b)(2)(A). Congress adopted the 

BART provisions to address visibility, 

rather than health concerns. See H.R. 

Rep. 95–294, at 529 (1977) (‘‘It should 

be made clear at the outset that this 

provision [concerning BART] is totally 

unrelated to any question involving 

public health.’’) (separate views of 

Messrs. Devine, Krueger, Broyhill, 

Gammage, Clarence J. Brown, Collins, 

Moore and Stockman). Congress 

therefore sensibly left decisions relating 

to the imposition of costly visibility 

control technologies on certain existing 

sources entirely to the states, where 

local factors could be properly 

considered and implemented: 

The agreement clarifies that the state, 

rather than the Administrator, identifies the 

source that impairs visibility in the Federal 

class I areas. ‘‘. . . In establishing emission 

limitations for any source which impairs 

visibility, the State shall determine what 

constitutes ‘best available retrofit technology’ 

. . .’’ H.R. Conf. Rep. 95–564, at 155 (1977). 

While the original House bill would have 

given EPA the power to determine what 

BART controls should be applied to 

individual sources, Congress eventually 

inserted the current statutory language to 

make it clear that the States, rather than EPA, 

would make BART determinations. See id.; 5 

Leg. History of CAA Amendments 1997 P.L. 

95–95, H8663 (1997) (‘‘The provision [in the 

original bill] was modified to give States a 

greater role in identifying sources which are 

contributing (or may in the future contribute) 

to visibility problems and in establishing 

control requirements for those sources.’’). 

Senator Muskie confirmed during the floor 

debate that ‘‘the State, not the Administrator, 

identifies a source that may impair visibility’’ 

and that ‘‘it is the State which determines 

what constitutes ‘Best Available Retrofit 

Technology.’ ’’ 123 Cong. Rec. 26,854 (1977). 

The federal courts have enforced this 

legislative intent. In American Corn 

Growers, the D.C. Circuit quoted at 

length from the legislative history of 

section 169A to conclude that it was 

‘‘clear that the States—not EPA—would 

make these BART determinations.’’ 291 

F.3d at 8; see also id. at 8 (‘‘The 

Conference Report . . . confirms that 

Congress intended the States to decide 

which sources impair visibility and 

what BART controls should apply to 

those sources.’’). American Corn 

Growers reaffirms that the states have 

‘‘broad authority’’ to make their own 

BART determinations. Id. It also 

reaffirms that EPA cannot ‘‘deprive the 

states of some of this statutory 

authority,’’ nor can EPA ‘‘constrain[ ] 

authority Congress conferred on the 

states’’ with respect to BART 

determinations. Id. at 8–9. It was for this 

reason that the court struck EPA’s first 

attempt at the Regional Haze Rule: it 

purported to tell the states how to make 

BART determinations. Id. at 6–7. The 

same court later reiterated that BART 

‘‘requires States to determine the 

particular technology that an individual 

source ‘subject to BART’ must install.’’ 

Utility Air Regulatory Grp. v. EPA, 471 

F.3d 1333, 1336 (D.C. Cir. 2006). 

Other federal courts have recognized 

the cooperative federalism policies on 

which the CAA in general—and the 

regional haze provisions in particular— 

are based. See, e.g., Texas v. EPA, 690 

F.3d 670, 684 (5th Cir. 2012); Ellis v. 

Gallatin Steel Co., 390 F.3d 461, 467 

(6th Cir. 2004); Sierra Club v. EPA, 315 

F.3d 1295, 1300 (11th Cir. 2002); Am. 

Lung Ass’n of N.J. v. Kean, 871 F.2d 319, 

322 (3d Cir. 1989). Under cooperative 

federalism, states retain the discretion 

and flexibility to make their own 

choices based on local conditions, 

histories, and policies. See, e.g., Budget 

Prepay, Inc. v. AT&T Corp., 605 F.3d 

273, 281 (5th Cir. 2010) (‘‘ ‘cooperative 

federalism’ . . . necessarily implies that 

states may reach differing conclusions 

on specific issues relating to the 

implementation of the [statute]’’); Global 

NAPs, Inc. v. Mass. Dep’t of Telecom. & 

Energy, 427 F.3d 34, 46 (1st Cir. 2005) 

(cooperative federalism has ‘‘the 

intended effect of leaving state 

commissions free, where warranted, to 

reflect the policy choices made by their 

states’’ and to implement statutory 

provisions ‘‘fairly and with due regard 

to . . . local conditions . . . and . . . 

historical circumstances’’); Taylor v. Vt. 

Dep’t of Educ., 313 F.3d 768, 777 (2d 

Cir. 2002) (‘‘‘[c]ooperative federalism 

. . . allows some substantive 

differentiation among the states in the 

determination of which . . . theories, 

practices, and approaches will be 

utilized’’’) (citation omitted). 

In sum, Congress directed that BART 

determinations are to be made by the 

states, allowing the states to make their 

own BART choices based on local 

conditions and other considerations. 

Because EPA may not exercise authority 

‘‘in a manner that is inconsistent with 

the administrative structure that 

Congress enacted into law,’’ ETSI 

Pipeline Project v. Missouri, 484 U.S. 

495, 517 (1998), EPA may not 

disapprove a state BART determination 

that complies with the CAA, whether or 

not EPA agrees with the state’s decision. 

Here, EPA has not demonstrated that 

Wyoming’s BART determination 

violates the CAA, and for that reason 

EPA must approve the BART 

determination in the SIP even if it 

‘‘disagrees’’ with it. Instead, just as in its 

rulemaking at issue in Texas, EPA’s 

Proposed Rule ‘‘transgresses the CAA’s 

delineated boundaries of [the] 

cooperative relationship’’ between EPA 

and the states. 690 F.3d at 686. 

Response: EPA disagrees with this 

comment. First, the legislative history of 

the 1977 Amendments cited by the 

commenter is incomplete. The complete 

legislative history, when fairly read, 

contradicts the commenter and confirms 

EPA’s supervisory role in reviewing 

state regional haze SIP submittals, 

including the state’s initial BART 

determinations. 

The 1977 Amendments resulted from 

a conference agreement that reconciled 

the House bill, H.R. 6161, and the 

Senate bill, S. 252. The conference 

committee agreed to adopt the visibility 

protection provisions of section 116 of 

the House bill, with certain 

modifications. With respect to the BART 

provision in what is now section 

169A(b)(2)(A) of the Act, the conference 

agreement inserted the phrase ‘‘as 

determined by the State (or the 

Administrator in the case of a plan 

promulgated under [section 110(c) of 

the Act])’’ in the two places it now 

appears in that section.31 The 

conference agreement inserted similar 

language into the definition of BART in 

section 169A(g)(2). The 1977 

Amendments also added section 

110(a)(2)(J) to the Act, which makes 

(among other things) a regional haze SIP 

that meets the requirements of part C 

relating to visibility protection a 

required part of a state’s SIP. 

Thus, H.R. 6161 required states to 

submit regional haze SIPs containing 

BART determinations, but did not 

explicitly specify that the BART 

determinations should, in the first 

instance, be made by the state. The 

conference agreement language clarified 

that states should make BART 

determinations as part of their SIP 

submittals, as explained in the 

conference report: 

The agreement clarifies that the State, 

rather than the Administrator, identifies the 

source that impairs visibility in the Federal 

class I areas identified and thereby fall 

within the requirements of this section. . . . 

In establishing emission limitations for any 

source which impairs visibility, the State 

shall determine what constitutes ‘‘best 

available retrofit technology’’ (as defined in 

this section) in establishing emission 

limitations on a source-by-source basis to be 

included in the State implementation plan so 

as to carry out the requirements of this 

section. 

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32 In context, the statement regarding ‘‘required 

progress’’ must be understood to include BART. 

First, the preceding portion of the statement 

discusses States’ roles in determining controls 

generally under 169A(b)(2), ‘‘including’’ the BART 

requirements in 169A(b)(2)(A). The portion about 

EPA’s supervisory role in assuring ‘‘required 

progress’’ should be understood to apply to all of 

169A(b)(2), including subsection 169A(b)(2)(A). 

H.R. Conf. Rep. 95–564, at 155 (1977) 

(emphasis added). In other words, 

BART determinations are a required 

element (‘‘the State shall determine’’) of 

a state’s regional haze SIP submittal (‘‘to 

be included in the State implementation 

plan’’). However, the conference report 

does not say that the state’s 

determination is final. For example, it 

does not say: ‘‘The State shall 

determine, and EPA shall abide by . . .’’ 

Thus, all the conference report says is 

that states must provide BART 

determinations as part of the state’s 

required regional haze submittal. As the 

Tenth Circuit Court of Appeals stated, 

‘‘All the conference agreement 

referenced by the D.C. Circuit did was 

shift the initial responsibility for making 

BART determinations from the EPA to 

the state. But that does not differ from 

other parts of the CAA—states have the 

ability to create SIPs, but they are 

subject to EPA review.’’ Oklahoma v. 

EPA, 723 F.3d 1201, 1209 (10th Cir. 

2013). 

Another portion of the legislative 

history, only partially quoted by the 

commenter, confirms EPA’s supervisory 

role. Congressman Rogers inserted into 

the Congressional Record a Clean Air 

Conference Report (1977): Statement of 

Intent; Clarification of Select Principles. 

123 Cong. Rec. 27070 (daily ed. Aug. 4, 

1977) (statement of Cong. Rogers). The 

Statement of Intent clarified ‘‘some 

important points on the intention and 

effect of the conferees action [that] may 

have been overlooked or may be unclear 

in the text of the conference bill or the 

accompanying statement of managers.’’ 

Id. Under section ‘‘D. Visibility 

protection,’’ the first full paragraph 

states: 

The conferees essentially agreed to the 

House provision for visibility protection. The 

provision was modified to give States a 

greater role in identifying sources which are 

contributing (or may in the future contribute) 

to visibility problems and in establishing 

control requirements for those sources. 

However, the conferees rejected a motion to 

delete the national goal. The conferees also 

rejected a motion to delete EPA’s supervisory 

role under section 110 to assure that the 

required progress toward that goal will be 

achieved by the revised State plan. If a State 

visibility protection plan is not adequate to 

assure such progress, then the Administrator 

must disapprove that portion of the SIP and 

promulgate a visibility protection plan under 

section 110(c). Thus, visibility protection in 

most mandatory federal Class I areas remains 

a national commitment, which is nationally 

enforceable. 

Id. (emphasis added). Thus, the 

Statement of Intent, instead of 

supporting the commenter’s arguments, 

confirms EPA’s supervisory role over 

states’ regional haze SIPs, as the 

conferees deliberately rejected a 

proposal to remove that supervisory 

role.32 The Statement of Intent also only 

describes states as having a ‘‘greater 

role’’ in determining BART; it does not 

describe that role as exclusive. 

With respect to Senator Muskie’s 

statements, the comment omits a 

portion of the legislative history 

regarding application of the BART 

Guidelines. Oklahoma v. EPA, 723 F.3d 

1201, 1209–10 (10th Cir. 2013). The 

Tenth Circuit considered those 

statements in context and confirmed 

EPA’s authority to ensure that state 

BART determinations for fossil-fuel 

fired power plants having a total 

generating capacity greater than 750 

MW complied with the BART 

Guidelines. Id. With respect to the 

separate views of several 

Representatives regarding visibility 

protection as unrelated to public health, 

those views are of a small minority that 

opposed any provisions for visibility 

protection whatsoever. H.R. Rep. 95– 

294, at 530 (1977). Their views did not 

carry the day and, in any case, are 

irrelevant to the question of EPA’s 

supervisory role. 

With respect to the remainder of the 

comment regarding various court 

opinions, we have responded to similar 

comments elsewhere. EPA’s action here 

violates neither the holdings in 

American Corn Growers and UARG 

regarding the RHR, nor the generic 

remarks regarding cooperative 

federalism in the other cited cases. 

Comment: Although EPA cites 

‘‘errors’’ made by Wyoming in its BART 

determination for Laramie River Station, 

EPA has not—and cannot—demonstrate 

that any of these alleged ‘‘errors’’ 

represents a violation of the CAA. These 

are technical disagreements over 

judgments committed by Congress to the 

states—not grounds for EPA to step in 

and dictate a technology choice. Section 

169A does not confer any authority 

upon EPA to make a BART 

determination when the state has made 

one. Once the state makes a BART 

determination, EPA’s authority to 

review it in the SIP review process is 

very limited. Section 110 mandates that 

‘‘[EPA] shall approve such [SIP] 

submittal as a whole if it meets all of the 

applicable requirements of this 

chapter.’’ 42 U.S.C. 7410(k)(3). See also 

Forest Guardians v. Babbitt, 174 F.3d 

1178, 1187 (10th Cir. 1999) (‘‘The 

Supreme Court and this circuit have 

made clear that when a statute uses the 

word ‘shall,’ Congress has imposed a 

mandatory duty upon the subject of the 

command.’’). 

As the Fifth Circuit recently 

expressed, ‘‘the Act confines the EPA to 

the ministerial function of reviewing 

SIPs for consistency with the Act’s 

requirements,’’ and ‘‘[t]h[e] statutory 

imperative [of section 110(k)(3)] leaves 

the agency no discretion to do anything 

other than ensure that a state’s 

submission meets the CAA’s 

requirements and, if it does, approve it.’’ 

Luminant, 675 F.3d at 921, 926. See also 

id. at 932 (‘‘If [the State’s] regulations 

satisfy th[e] basic requirements [of the 

CAA], the EPA must approve them, as 

section 7410(k)(3) requires. That is the 

full extent of the EPA’s authority in the 

SIP-approval process because that is all 

the authority that the CAA confers.’’) 

Texas, 690 F.3d at 676 (‘‘[I]f a SIP or a 

revised SIP meets the statutory criteria 

of the CAA, then the EPA must approve 

it.’’); Bethlehem Steel Corp. v. Gorsuch, 

742 F.2d 1028, 1036 (7th Cir. 1984) 

(EPA’s SIP disapproval power is 

‘‘constrained by the substantive criteria 

in 42 U.S.C. 7410(a)(2)(A)–(K)’’); Fla. 

Power & Light Co. v. Costle,650 F.2d 

579, 581 (5th Cir. 1981) (‘‘If a SIP or a 

revised SIP meets the statutory criteria. 

. . the EPA must approve it.’’) 

(citations omitted). 

Since Wyoming’s BART decision for 

Laramie River Station, along with its 

associated SIP revision, meets the 

requirements set forth in the CAA, EPA 

has no discretion and must approve it 

in its entirety. As the Supreme Court 

explained in the NAAQS context: The 

Act gives the Agency no authority to 

question the wisdom of a state’s choices 

of emission limitations if they are part 

of a plan which satisfies the standards 

of section 110(a)(2), and the Agency 

may devise and promulgate a specific 

plan of its own only if a state fails to 

submit an implementation plan which 

satisfies those standards. Section 110(c). 

Thus, so long as the ultimate effect of a 

state’s choice of emission limitations is 

compliance with the national standards 

for ambient air, the state is at liberty to 

adopt whatever mix of emission 

limitations it deems best suited to its 

particular situation. Train, 421 U.S. at 

79; see also Virginia, 108 F.3d at 1408– 

10 (confirming that the 1977 

Amendments to section 110 did not 

alter the division of responsibilities 

recognized in Train). Accord Union 

Elec. Co. v. EPA, 427 U.S. 246, 267 

(1976) (‘‘[T]he State has virtually 

absolute power in allocating emission 

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limitations so long as national standards 

are met.’’). 

The fact that states must propose SIP 

revisions ‘‘as may be necessary’’ to 

achieve reasonable progress does not 

mean that EPA has authority to 

countermand the textual commitment to 

leave BART decisions to the states. The 

D.C. Circuit interpreted similar language 

in Section 110(k)(5) to constrain EPA’s 

authority over SIP approval and 

disapproval. See Virginia, 108 F.3d at 

1409. The SIP call provisions of Section 

110(k)(5) similarly state that when a SIP 

is inadequate ‘‘[EPA] shall require the 

State to revise the plan as necessary to 

correct such inadequacies.’’ But the 

Virginia court rejected the agency’s 

expansive view of this phrase as 

authority to impose specific control 

measures for specific emission sources: 

EPA apparently thinks the ‘‘as 

necessary’’ language in section 110(k)(5) 

altered the division of responsibilities 

between the states and the agency. We 

suppose the idea is that because section 

110(k)(5) empowers EPA to ‘‘require the 

State to revise the plan as necessary to 

correct’’ inadequacies, it empowers EPA 

to require the state to include particular 

control measures in the revised plan. 

There is nothing to this. Id. at 1409. 

Instead, the court concluded that this 

phrase ‘‘keep[s] EPA within bounds.’’ 

Id. at 1410. Imposition of a FIP is 

intended to be a drastic penalty, 

imposed only where a state fails to 

provide the air pollution reductions 

required by the CAA, as ‘‘it rescinds 

state authority to make the many 

sensitive and policy choices that a 

pollution control regime demands.’’’ Id. 

at 1406–07 (citation omitted). The court 

also expressed, in rejecting EPA’s 

interpretation of Section 110(k)(5), that 

‘‘[w]e would have to see much clearer 

language to believe a statute allowed a 

federal agency to intrude so deeply into 

state political processes.’’ Id. at 1410. 

EPA must therefore approve the 

Wyoming SIP as it relates to BART at 

Laramie River Station, as compliance 

with the law is all that is required. See 

Luminant, 675 F.3d at 926 (EPA’s 

reliance on factors other than 

compliance with the CAA in 

disapproving a SIP violated the 

Administrative Procedures Act (APA), 

as it was ‘‘in excess of statutory 

authority,’’ and was arbitrary and 

capricious, as it considered ‘‘a ‘factor[ ] 

which Congress has not intended [the 

EPA] to consider’ ’’) (quoting 5 U.S.C. 

706(2)(C) and State Farm, 463 U.S. at 

43) (alteration in original). 

Response: EPA is not substituting its 

judgment on required technology for the 

State’s in this decision. Rather, we have 

determined that Wyoming’s analysis 

and determinations were not performed 

consistent with the CAA and 

implementing regulations. EPA 

considered the State’s SIP as well as the 

most recent information submitted by 

Basin Electric and others for the 

Laramie River BART units. As 

explained in detail in our response to 

similar comments in the BART section 

of this document, we found Basin 

Electric’s estimates of SCR capital cost 

deficient in a number of respects, 

specifically: (1) Inadequate explanation 

for the high labor rates that were 

assumed when compared to published 

labor rates; (2) High overtime and per 

diem costs without sufficient 

explanation; (3) Apparent duplication of 

costs associated with General Facilities; 

(4) Inclusion of AFUDC; (5) Apparent 

duplication of contingencies and other 

cost adders; and (6) Addition of 

unnecessary SO3 mitigation system. All 

of these contributed to excessively high 

capital cost. Sargent & Lundy also 

assumed excessively high cost for 

replacement catalyst, which contributes 

to high operating cost. As we explain 

elsewhere, these deficiencies are 

inconsistent with the CAA and RHR. 

We responded to similar comments 

regarding the remaining comments 

above and elsewhere in this document. 

Comment: To the extent that the 

Supreme Court in ADEC suggested it 

was adopting a ‘‘reasonableness’’ 

standard, and did not expressly state 

that what it was doing was adopting an 

‘‘arbitrary and capricious’’ standard, the 

Supreme Court and other federal courts 

have confirmed that these two standards 

are nearly interchangeable. Moreover, to 

the extent that there is any perceivable 

difference between the two standards, 

these cases confirm that ‘‘reasonable’’ 

means something more like ‘‘not 

arbitrary and capricious’’ than ‘‘not 

what EPA would prefer.’’ See, e.g., 

Marsh v. Ore. Nat. Res. Council, 490 

U.S. 360, 377 n.23 (1989) (‘‘as some of 

the[ ] courts have recognized, the 

difference between the ‘arbitrary and 

capricious’ and ‘reasonableness’ 

standards is not of great pragmatic 

consequence’’) (citing cases); Ridenour 

v. Kaiser-Hill Co., 397 F.3d 925, 939 

(10th Cir. 2005) (‘‘When a party 

challenges agency action as arbitrary 

and capricious the reasonableness of the 

agency’s action is judged in accordance 

with its stated reasons.’’) (citation 

omitted); Amisub (PSL), Inc. v. Colo. 

Dep’t of Social Servs., 879 F.2d 789, 800 

(10th Cir. 1989) (the court’s role in 

applying the arbitrary and capricious 

review standard is ‘‘to determine if there 

was a reasonable factual basis to 

support’’ the agency’s findings); United 

States v. Minnkota Power Co-Op Inc., 

831 F. Supp.2d 1109, 1119 (D.N.D. 

2001) (expressing that the 

‘‘reasonableness’’ standard employed by 

the ADEC Court is the same as the 

‘‘arbitrary and capricious’’ standard). 

Under the APA’s arbitrary and 

capricious review standard, 

administrative action is presumed valid, 

and review of that action is ‘‘ ‘narrow in 

scope.’ ’’ Copar Pumice Co. v. Tidwell, 

603 F.3d 780, 793 (10th Cir. 2010) 

(citation omitted). ‘‘Agency action is 

arbitrary and capricious only if the 

agency ‘has relied on factors which 

Congress has not intended it to 

consider, entirely failed to consider an 

important aspect of the problem, offered 

an explanation for its decision that runs 

counter to the evidence before the 

agency,’ or if the agency action ‘is so 

implausible that it could not be ascribed 

to a difference in view or the product of 

agency expertise.’ ’’ Id. (quoting State 

Farm, 463 U.S. at 43). A court will not 

‘‘substitute [its] judgment for that of the 

agency,’’ but will only consider whether 

the agency provided a ‘‘reasoned basis’’ 

for its action. Id. at 793–94 (quoting 

State Farm, 463 U.S. at 43). The courts 

also have developed a series of related 

standards designed to ensure that courts 

afford appropriate deference to an 

agency’s technical and policy choices, 

and refrain from substituting the courts’ 

judgment for that of the agency. For the 

same reasons that arbitrary and 

capricious review should apply to EPA’s 

review of a state BART determination, 

these related standards also should 

apply: (1) The State’s BART decision is 

presumed valid, and EPA bears the 

burden of proving otherwise, see 

Hillsdale Envt’l Loss Prevention, Inc. v. 

U.S. Army Corps of Eng’rs, 702 F.3d 

1156, 1165 (10th Cir. 2012); (2) the 

State’s decision may be set aside ‘‘ ‘only 

for substantial procedural or substantive 

reasons,’ ’’ id. (citation omitted); and (3) 

where experts might disagree about a 

technical issue, EPA must defer to the 

‘‘reasonable opinions’’ of the States’ 

experts, see Colo. Wild v. U.S. Forest 

Serv., 435 F.3d 1204, 1214 (10th Cir. 

2011). See also Minnkota Power, 831 F. 

Supp.2d at 1119–20 (the same 

principles that apply to court review of 

agency action under the APA apply to 

EPA challenges to state BACT 

determinations). 

EPA’s proposal does not formulate or 

apply these standards, and thus does 

not establish grounds to overrule the 

State’s BART determination for Basin 

Electric’s Laramie River Station. EPA 

has not found that Wyoming ‘‘entirely 

failed to consider an important aspect of 

the problem,’’ considered factors 

Congress did not intend it to consider, 

or reached a decision ‘‘so implausible’’ 

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5064 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

as to be arbitrary. Nor has EPA found 

that Wyoming’s explanation for its 

decision runs counter to the evidence 

that was before it. Instead, EPA 

complains of minor alleged deviations 

from broadly worded and highly flexible 

guidelines deliberately designed to be 

consulted but not rigidly adhered to in 

any event. EPA therefore must approve 

the State’s BART decision for Laramie 

River, as any other result represents 

EPA’s substitution of its judgment over 

Wyoming’s, which EPA has no statutory 

authority to do. 

Response: EPA disagrees with this 

comment, which is based on a 

fundamental misunderstanding of EPA’s 

role. In acting on a state’s SIP submittal, 

EPA does not sit in the position of a 

reviewing federal court. Instead, EPA is 

the agency entrusted by Congress with 

administering the CAA. Thus Congress 

has ‘‘vested EPA with explicit and 

sweeping authority to enforce CAA 

requirements’’ and requires that ‘‘EPA 

step in to ensure that the statutory 

requirements are honored.’’ Alaska 

Dep’t of Envtl. Conservation v. EPA, 540 

U.S. 461, 490 (2004). Reviewing courts, 

on the other hand, ‘‘are not experts in 

the field’’ and thus defer to decisions by 

‘‘the agency charged with the 

administration of the statute.’’ Chevron, 

Inc. v. Natural Res. Def. Council, 467 

U.S. 837, 866 (1984). 

In the context of acting on a regional 

haze SIP, EPA must assure that it meets 

the requirements of the Act and the 

RHR, including requirements regarding 

BART. EPA—unlike a reviewing court— 

is not required to defer to the state’s 

technical judgments. Instead, EPA is not 

only authorized, but required to exercise 

independent technical judgment in 

evaluating the adequacy of a state’s 

regional haze SIP, including its BART 

determinations, just as EPA must 

exercise such judgment in evaluating 

other SIPs. In evaluating other SIPs, 

EPA’s role is always to make a judgment 

about SIP adequacy, not just to meet and 

maintain the NAAQS, but also to meet 

other requirements that do not have a 

numeric value. In this case, Congress 

did not establish NAAQS by which to 

measure visibility improvement; 

instead, it established a reasonable 

progress standard and required that EPA 

assure that such progress be achieved. 

Here, contrary to the commenter’s 

assertion, we are exercising judgment 

within the parameters laid out in the 

CAA and our regulations. Our 

interpretation of our regulations and of 

the CAA, and our technical judgments, 

are entitled to deference. See, e.g., 

Michigan Dep’t. of Envtl. Quality v. 

Browner, 230 F.3d 181 (6th Cir. 2000); 

Connecticut Fund for the Env’t., Inc. v. 

EPA, 696 F.2d 169 (2nd Cir. 1982); 

Voyageurs Nat’l Park Ass’n v. Norton, 

381 F.3d 759 (8th Cir. 2004); Mont. 

Sulphur & Chem. Co. v. EPA, 666 F.3d 

1174 (9th Cir. 2012). 

The comment does not cite to 

anything in the ADEC opinion (or, for 

that matter, in the CAA itself) that 

suggests EPA must, in reviewing a SIP 

submittal, adopt the APA standards of 

review. Instead, in ADEC the Supreme 

Court upheld EPA’s position that the 

State permitting agency’s BACT 

determination ‘‘did not qualify as 

reasonable in light of the statutory 

guides.’’ Alaska Dep’t of Envtl. 

Conservation v. EPA, 540 U.S. 461, 484 

(2004). The mere coincidence that some 

courts have described the APA 

standards of review as essentially a 

‘‘reasonableness’’ standard does not 

compel EPA to adopt the APA standards 

of review; nor did the ADEC opinion 

suggest EPA must do so. As explained 

above, a fundamental difference 

between EPA and a reviewing court is 

that courts lack technical expertise and 

so generally defer to agency technical 

judgments; on the other hand, EPA is 

the expert agency entrusted by Congress 

with administering the CAA and 

exercising its best technical judgment in 

doing so. Another fundamental 

difference is that a reviewing court is 

limited to the record compiled by the 

administrative agency, but EPA in its 

review of a SIP submittal is not limited 

just to the record compiled by the state 

agency, and may supplement the record 

with (among other things) EPA’s own 

expert reports and analyses. In fact, if 

the cases cited by the commenter 

discussing the APA standard of review 

stand for anything, it is the proposition 

that if and when EPA’s action on this 

SIP submittal is subject to judicial 

review, the court will base its decision 

on the record compiled by EPA and give 

appropriate deference to EPA’s 

technical judgments and interpretations 

of the Act and the RHR. Accordingly, 

the Eighth and Tenth Circuit Court of 

Appeals have applied the APA standard 

of review to EPA’s actions on other 

regional haze SIP submittals. See 

Oklahoma v. EPA, 723 F.3d 1201 (10th 

Cir. 2013), North Dakota v. EPA, 730 

F.3d 750 (8th Cir. 2013). 

The discussion of the standard of 

review in the district court’s order and 

opinion in United States v. Minnkota 

Power Co-op., Inc., 831 F. Supp. 2d 

1109 (D.N.D. 2011), cited by commenter, 

is not to the contrary. The district 

court’s opinion first quotes the ADEC 

opinion for the proposition that the 

question presented is whether ‘‘the state 

agency’s BACT determination was 

reasonable, in light of the statutory 

guides and the state administrative 

record.’’ Id. at 1119 (emphasis added). 

The district court’s opinion then again 

quotes the ADEC opinion: ‘‘We apply 

the familiar default standard of the 

Administrative Procedure Act . . . and 

ask whether the Agency’s action was 

‘arbitrary, capricious, an abuse of 

discretion, or otherwise not in 

accordance with law.’ ’’ Id. (emphasis 

added). In the context of the ADEC 

opinion, the Agency referred to by the 

Supreme Court in the second quote is 

EPA, not the State agency. The district 

court’s opinion then continues by 

quoting a separate Supreme Court 

opinion discussing the similarities of 

the arbitrary and capricious standard 

and the reasonableness standard. This 

fails to establish any sort of connection 

between the APA standard and EPA’s 

review of a state determination. In 

addition, Minnkota Power took place in 

the context of an enforcement action, 

not action on a SIP submittal. The EPA 

had entered into a consent decree that 

(among other things) ‘‘establishe[d] the 

standard of review governing the EPA’s 

challenge to the North Dakota NOX

BACT Determination.’’ Id. at 1112. The 

consent decree provided that ‘‘[t]he 

disputing Party shall bear the burden of 

proof throughout the dispute resolution 

process.’’ Thus, Minnkota Power has 

nothing to say about use of the APA 

standard in EPA’s review of a state’s 

BART determination. 

Comment: In applying the arbitrary 

and capricious standard, EPA should 

accord the same deference to a state’s 

BART determination that courts accord 

to an agency decision under the 

National Environmental Policy Act 

(NEPA), which, like section 169A, ‘‘does 

not mandate particular results, but 

simply prescribes the necessary 

process.’’ Robertson v. Methow Valley 

Citizens Council, 490 U.S. 332, 350 

(1989). See also 42 U.S.C. 4332(2)(C) 

(any agency contemplating a ‘‘major 

Federal action [that] significantly 

affect[s] the quality of the human 

environment’’ must prepare an 

environmental impact statement [EIS] 

analyzing the action’s environmental 

effects). Under NEPA, ‘‘[t]he role of the 

courts is simply to ensure that the 

agency has adequately considered and 

disclosed the environmental impact of 

its actions and that its decision is not 

arbitrary or capricious.’’ Baltimore Gas 

& Elec. Co. v. NRDC, 462 U.S. 87, 97– 

98 (1983). 

The purpose of this deferential review 

standard under NEPA is to prevent a 

court from ‘‘substitut[ing] its judgment 

for that of the agency.’’ Kleppe v. Sierra 

Club, 427 U.S. 390, 410 n.21 (1976). As 

the Supreme Court explained in Kleppe, 

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33By statute, EPA’s promulgation of a FIP must 

be upheld unless the court determines EPA’s action 

was ‘‘arbitrary, capricious, an abuse of discretion, 

or otherwise not in accordance with the law.’’ CAA 

Section 307(d)(1)(B), (9)(A). There is no statutory 

standard of review governing EPA’s disapproval of 

a SIP, however, the Supreme Court has held that 

where the Clean Air Act does not specific a 

standard for judicial review, ‘‘we apply the familiar 

default standard of the Administrative Procedure 

Act . . . and ask whether the agency’s action was 

arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with law.’’ ADEC at 

496–97. 

‘‘[t]he only role for a court is to insure 

that the agency has taken a ‘hard look’ 

at environmental consequences; it 

cannot ‘interject itself within the area of 

discretion of the executive as to the 

choice of the action to be taken.’’’ Id. 

(citing NRDC v. Morton, 458 F.2d 827, 

838 (D.C. Cir. 1972)). 

Under this review standard, ‘‘even if 

[the reviewing court] would have made 

a different choice had the matter been 

before [the court] de novo,’’ the court 

‘‘cannot displace the agencies’ choice’’ 

between conflicting views, evidence, 

data, and scientific opinions. Custer 

Cnty. Action Ass’n v. Garvey, 256 F.3d 

1024, 1036 (10th Cir. 2001). Thus, even 

in the face of technical objections, a 

court will uphold the agency’s action so 

long as it is supported by substantial 

evidence in the administrative record, is 

adequate to foster informed public 

participation and decision making, and 

is not otherwise arbitrary or capricious. 

Id. 

Moreover, as the courts have 

repeatedly recognized, ‘‘[d]eficiencies in 

an EIS that are mere ‘flyspecks’ and do 

not defeat NEPA’s goals of informed 

decision making and informed public 

comment will not lead to reversal.’’’ 

WildEarth Guardians v. NPS, 703 F.3d 

1178, 1183 (10th Cir. 2013) (quoting 

New Mexico v. BLM, 565 F.3d 683, 704 

(10th Cir. 2009)). See also Custer Cnty, 

256 F.3d at 1035 (‘‘Our objective is not 

to ‘fly speck’ the [EIS], but rather, to 

make a ‘pragmatic judgment whether 

the [EIS]’s form, content and 

preparation foster both informed 

decision-making and informed public 

participation.’’’) (citation omitted). 

The same principles apply here, 

where Congress has expressly delegated 

the BART decision to the states, did not 

mandate the states to reach a specific 

outcome, and established only a 

decision making process for the states to 

follow—not a required outcome. If the 

state considered all five statutory factors 

to arrive at a result that improves 

visibility, and its decision is not 

arbitrary, capricious, an abuse of 

discretion, or otherwise not in 

accordance with law, EPA must affirm 

the BART selection—even if EPA would 

or could have made a different 

selection. 

Response: EPA disagrees with this 

comment. The comment does not 

identify anything in the NEPA court 

decisions that demonstrates that those 

decisions are applicable to EPA’s review 

of a SIP submittal. In fact, Section 7(c) 

of the Energy Supply and 

Environmental Coordination Act of 

1974 (15 U.S.C. 793(c)(1)) exempts 

actions under the CAA from the 

requirements of NEPA. Specifically, this 

section states that ‘‘[n]o action taken 

under the CAA [42 U.S.C. 7401 et seq.] 

shall be deemed a major Federal action 

significantly affecting the quality of the 

human environment within the meaning 

of the National Environmental Policy 

Act of 1969 [42 U.S.C. 4321 et seq.].’’ 

While the standard of review for EPA’s 

SIP and FIP decisions may be similar to 

that under NEPA,33 the NEPA decisions 

simply are not applicable in the CAA 

context. 

Furthermore, NEPA relies solely on 

‘‘procedural mechanisms—as opposed 

to substantive, result-based standards.’’ 

Robertson v. Methow Valley Citizens 

Council, 490 U.S. 332, 353 (1989). 

Unlike NEPA, the CAA’s regional haze 

program has specific substantive 

requirements, and EPA must ensure that 

SIP submittals meet the requirements of 

the Act, including the substantive 

provisions of the regional haze program. 

See CAA Section 110(a)(2)(J) (SIP 

submittals must meet applicable 

requirements of Part C of title I, 

including visibility protection). As the 

Eighth Circuit Court of Appeals stated: 

‘‘EPA is left with more than the 

ministerial task of routinely approving 

SIP submissions.’’ North Dakota v. EPA, 

730 F.3d 750 (8th Cir. 2013) (emphasis 

added). 

Comment: One commenter asserted 

that the U.S. Supreme Court and the 

lower federal courts have long 

recognized and applied the principle of 

‘‘harmless error’’ where an agency may 

have committed an error, but that error 

did not affect the outcome of its 

decision. See, e.g., Nat’l Ass’n of Home 

Builders v. Defenders of Wildlife, 551 

U.S. 644, 659 (2007); Hillsdale, 702 F.3d 

at 1165. See generally 5 U.S.C. 706 

(‘‘[D]ue account shall be taken of the 

rule of prejudicial error.’’). 

The commenter argued that the courts 

also have long recognized the related 

principle that agencies may ‘‘overlook 

circumstances that in context may fairly 

be considered de minimis,’’ as part of 

the broad notion that ‘‘the law does not 

concern itself with trifling matters.’’ 

Alabama Power Co. v. Costle, 636 F.2d 

323, 360 (D.C. Cir. 1979). Thus, for 

instance, the D.C. Circuit rejected a 

challenge to a Federal Aviation 

Administration rule where the agency 

had used ‘‘inappropriate guidelines for 

measuring the effects of noise’’ in its 

determination that a proposed airport 

site would not result in any ‘‘use’’ of a 

nearby wildlife refuge. Allison v. Dep’t 

of Transp., 908 F.2d 1024, 1026 (D.C. 

Cir. 1990). The court cited the APA 

provision requiring consideration of 

‘‘prejudicial error,’’ and expressed that 

‘‘[a] court should not upset a decision 

because of errors that are not material.’’ 

Id. at 1029 (citations omitted). See also 

Grunman Data Sys. Corp. v. Widnall, 15 

F.3d 1044, 1048 (Fed. Cir. 1994) 

(rejecting bid protest although agency 

may have violated accounting principles 

in its analysis of the best value bid, as 

any accounting errors were ‘‘de 

minimis,’’ and stating that ‘‘overturning 

awards on de minimis errors wastes 

resources and time, and is needlessly 

disruptive of procurement activities and 

governmental programs and 

operations’’) (citation omitted). 

Finally, the commenter argued, the 

courts have repeatedly held that agency 

action should not be reversed due to 

mere calculation errors that do not 

render a rule arbitrary and capricious. 

See, e.g., Michigan v. EPA, 213 F.3d 

663, 691 (D.C. Cir. 2000) (rejecting 

challenge to EPA decision despite error 

in calculation); Chem. Mfrs. Ass’n v. 

EPA, 870 F.2d 177, 241, clarified on 

reh’g, 885 F.2d 253 (5th Cir. 1989) 

(same); CPC Int’l, Inc. v. Train, 540 F.2d 

1329, 1343–44 (8th Cir. 1976) (same). 

The commenter stated that these same 

principles should apply to EPA’s review 

of the State’s BART determinations, 

such that EPA has no authority to 

disapprove the State’s decisions if a 

deviation from the BART Guidelines 

and CCM was merely de minimis and at 

most harmless error that did not affect 

the State’s selection of BART. Indeed, 

EPA’s approach itself suggests that the 

BART Guidelines and CCM were 

intended to be flexible, and that EPA’s 

review of compliance with their 

provisions is subject to a materiality 

standard. For instance, in the Proposed 

Rule, EPA proposes to disapprove 

certain BART determinations based on 

purported deviations from the BART 

Guidelines and CCM in assessing cost 

and visibility, yet it also proposes to 

approve other BART determinations 

‘‘because [it has] determined that the 

State’s conclusions were reasonable 

despite the cost and visibility errors’’ 

identified by EPA. 78 FR 34750. And, 

while the Tenth Circuit’s decision in 

Oklahoma v. EPA is not yet final, as 

petitions for rehearing may yet be filed, 

that court similarly suggested that there 

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was a materiality element to a state’s 

compliance with the BART Guidelines, 

noting, in particular, that the State’s cost 

estimates were ‘‘more than ten times 

EPA’s stated average costs per ton for 

th[e] technology, and nearly five times 

as much as the upper limit of EPA’s 

expected cost range.’’ —F.3d—, 2013 

U.S. App. LEXIS 14634, at *25 (10th Cir. 

July 19, 2013). Notably, that case did not 

involve SCR technology, which the 

CCM affords a greater amount of 

flexibility in assessing, and the State 

had failed to note and explain its 

deviations from the CCM. 

By applying these principles here, the 

commenter asserted, any deviation from 

the BART Guidelines and CCM was de 

minimis, and mere harmless error. 

Certainly, EPA has not shown that the 

State would have made a different 

BART selection had it assessed the cost 

and visibility factors in the manner EPA 

suggests—particularly as the selection of 

BART must be made by weighing all 

five factors, and as the differences 

between the State’s and EPA’s 

assessments of cost and visibility are not 

so substantial as to necessitate a 

different result. In other states, EPA has 

acknowledged that a state’s BART 

determination may be disapproved on 

account of a claimed error only if the 

error would have changed the BART 

determination. In approving Colorado’s 

regional haze SIP, EPA did not 

disapprove the BART determination for 

the Martin Drake power plant, despite 

EPA’s disagreement regarding the 

control efficiency of SCR because the 

discrepancy would not have changed 

the outcome. 77 FR 76871, 76875–76 

(Dec. 31, 2012) (‘‘[We] find that it was 

not unreasonable for Colorado to use 

0.07 lb/MMBtu to model the predicted 

visibility improvement from SCR. 

Moreover, while we do agree that 

assuming a control efficiency of 0.05 lb/ 

MMBtu would have resulted in greater 

modeled visibility benefits, we do not 

agree that the difference in visibility 

benefits would have led Colorado to a 

different conclusion given the 

magnitude of the benefits associated 

with SCR.’’). The commenter advocated 

that EPA should take a similar approach 

in Wyoming. 

The commenter finished by stating 

that if there is a question as to whether 

the State might have made a different 

BART selection had it assessed cost and 

visibility in the manner suggested by 

EPA, EPA should return the issue to the 

State to reweigh the BART factors with 

that information. See SKF USA Inc. v. 

United States, 254 F.3d 1022, 1029 (Fed. 

Cir. 2001) (courts may remand matters 

to the agency upon request to correct 

‘‘clerical errors, transcription errors, or 

erroneous calculations’’). 

Response: The cases cited to by the 

commenter all concern standards by 

which courts evaluate agency action, 

not standards by which EPA, an 

administrative agency, evaluates SIP 

submissions for compliance with the 

requirements of the CAA. The cases are 

therefore inapposite. Nevertheless, in 

situations where a state’s SIP reaches a 

reasonable result overall despite 

violations of certain statutory or 

regulatory requirements, EPA believes 

that approving the SIP is sometimes a 

better use of scarce administrative 

resources and more in line with 

principles of cooperative federalism 

than promulgating a FIP. This approach 

is arguably similar to the principle of 

‘‘harmless error’’ that courts adhere to in 

the context of judicial review. 

In this situation, however, the errors 

committed by Wyoming in its regional 

haze SIP were neither harmless nor de 

minimis. As we have explained 

previously, because Wyoming did not 

properly calculate the costs of the 

various control options or accurately 

estimate the visibility improvement 

associated with these controls, the 

State’s ultimate selection of BART for 

several EGUs did not represent the best 

system of continuous emission 

reduction. As the Eighth and Tenth 

Circuits have recently held, EPA acts 

within its power under section 169A of 

the CAA when it rejects a BART 

determination on the basis that a state 

did not properly take into consideration 

the costs of compliance as a result of 

methodological or data flaws. See 

Oklahoma v. EPA, 723 F.3d 1201, 1212 

(10th Cir. 2013); North Dakota v. EPA, 

730 F.3d 750 (8th Cir. 2013). This same 

reasoning applies equally to the other 

statutory BART factors, such as 

visibility improvement. 

We also disagree with the commenter 

that our action on the Colorado regional 

haze SIP implies that a similar outcome 

is warranted here. In that action, we 

stated that ‘‘it was not unreasonable for 

Colorado to use 0.07 lb/MMBtu to 

model the predicted visibility 

improvement from SCR.’’ 77 FR 76871, 

76875 (Dec. 31, 2012). Thus, we did not 

disagree with Colorado’s choice of 

control efficiency, as the commenter 

claims, and the situation bears no 

relationship to this one, where we have 

carefully explained our disagreement 

with multiple aspects of Wyoming’s 

NOX BART determinations. 

Finally, we decline to ‘‘return the 

issue to the State,’’ as the commenter 

proposes. At this time, the Wyoming 

regional haze SIP is many years 

overdue, and the deadline for EPA to 

issue a FIP has long since passed. We 

note, however, that Wyoming is free to 

submit a SIP revision at any time that, 

if approved, could replace all or a 

portion of EPA’s FIP. 

Comment: EPA’s proposal to 

disapprove Wyoming’s BART 

determination for Laramie River not 

only overrides the State’s technical 

judgment but also renders moot with a 

stroke of a pen the extensive judicial, 

administrative, and political processes 

developed by the State to implement its 

obligations under the CAA as a separate 

sovereign. Wyoming has enacted a 

robust and independent set of 

administrative and judicial procedures 

to review and potentially overturn 

BART decisions made by the State. 

These procedures are part of the State’s 

SIP expressly approved by EPA, 40 CFR 

52.2620, making them federally 

enforceable. 

Wyoming’s air quality regulations 

require a source subject to BART to 

apply for and obtain a BART permit. In 

this case, Laramie River Station’s BART 

permit was issued pursuant to Wyoming 

Air Quality Standards and Regulations 

(WAQSR) Chapter 6, Sections 2 and 9. 

The rules requiring BART permits in 

Wyoming were adopted on October 9, 

2006 as a new section to meet the 

requirements of EPA’s RHR. Chapter 6 

requires facilities seeking permits to 

comply with all the rules and 

regulations of Wyoming. Chapter 6, 

Section 9 of the Air Quality Division’s 

rules and regulations govern BART 

permits. Section 9(e)(iv) requires that 

the opportunity for public comment on 

BART permits follow the procedures 

specified in Chapter 6, Section 2(m). 

That section, in turn, establishes a 

notice and comment procedure that 

specifically requires a copy of the public 

notice to be sent to EPA. Thus, EPA 

approved Wyoming’s plan that 

specifically contemplates EPA’s 

inclusion in State administrative review 

proceedings. See 40 CFR 52.2620; see 

also US Magnesium, LLC v. EPA, 690 

F.3d 1157, 1159 (10th Cir. 2012) (EPA’s 

approval of a State’s SIP gave the SIP 

the force and effect of federal law). 

Here, EPA received the required 

notice at every step of the proceedings. 

EPA, however, chose to participate to 

only a limited extent. After submitting 

August 3, 2009 comments to the State’s 

BART Application Analysis and 

proposed permit and October 26, 2009 

comments to Wyoming’s draft regional 

haze SIP, EPA excised itself from the 

process. Despite its prior comments on 

Basin Electric’s BART permit and the 

regional haze SIP, EPA did not seek to 

intervene in Basin Electric’s 

administrative appeal to the 

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Environmental Quality Council or 

comment on Basin Electric’s settlement 

agreement with the Environmental 

Quality Council. EPA could have 

advised the Environmental Quality 

Council that it believed the proposed 

settlement violated the CAA or was 

otherwise arbitrary and capricious, but 

it did not. Instead, illustrating its 

disregard for State primacy, EPA now 

proposes to disapprove the NOX BART 

emissions limits in the settlement 

agreement and final SIP, years after the 

administrative process concluded. 

As the dissenters in ADEC described, 

EPA should not be permitted to avoid a 

‘‘more painstaking state process by a 

mere stroke of the pen under the 

agency’s letterhead.’’ 540 U.S. at 509 

(Kennedy, J., dissenting) (discussing an 

analogous process for BACT 

determinations). The CAA’s ‘‘strict’’ 

division of authority creates a ‘‘statutory 

federalism bar [that] prohibits EPA from 

using the SIP process to force States to 

adopt specific control measures.’’ EME 

Homer City Generation, L.P. v. EPA, 696 

F.3d 7, 29 (D.C. Cir. 2012) (citing 

Virginia, 108 F.3d at 1410). But that is 

precisely what EPA seeks to do here. 

EPA’s approach both confuses the CAA 

‘‘with a general administrative law 

statute like the [APA]’’ and upsets ‘‘the 

balance between State and Federal 

Governments.’’ See ADEC, 540 U.S. at 

507–17 (Kennedy, J., dissenting). 

Simply put, it is inappropriate for EPA 

to dodge the administrative and judicial 

review process established in the State 

of Wyoming through overturning of 

Wyoming’s BART decision by 

administrative fiat. See id. at 510 

(Kennedy, J., dissenting). It was only 

after Wyoming submitted its regional 

haze SIP to EPA that EPA announced it 

found the settlement ‘‘unreasonable’’ 

and something with which it 

‘‘disagreed.’’ Based upon these 

assertions, and without demonstrating 

that the BART permit actually violates 

the CAA, EPA now proposes to void all 

the extensive administrative 

proceedings, processes, comment 

periods, and permit finality accorded 

under State law. 

This improperly impinges upon state 

authority. Under the regional haze 

program, deference to state authority is 

far more compelling than issues related 

to public health under the BACT 

program, and so the Supreme Court’s 

holding in ADEC that EPA may not 

require ‘‘recourse to state processes’’ is 

inapplicable to BART decisions. ADEC, 

541 U.S. at 492. EPA should conduct 

itself in accordance with the spirit of its 

representation to the Supreme Court 

that it has never sought to override a 

state court judgment, and should not 

seek to override a state BART decision 

that has been litigated to administrative 

conclusion under state law, particularly 

where, as here, EPA never advised the 

State adjudicators or the parties to the 

State proceedings that it considered the 

permit to be invalid under the CAA. 

EPA could have participated in the State 

administrative appeal proceeding or, at 

a minimum, appeared in the proceeding 

to register an objection to the settlement 

agreement. Having elected not to do so, 

EPA should respect the result of the 

State’s process. Alternatively, EPA is 

precluded from overruling the Laramie 

River BART permit decision that 

resulted from that process. ADEC, 540 

U.S. at 491 n.14. EPA had notice and 

ample opportunity to contest the 

appropriateness and legality of the 

BART permit in Wyoming, but simply 

chose not to do so. 

EPA is not free to let parties like Basin 

Electric spend thousands of dollars and 

years of effort resolving the terms of a 

BART permit, only to find the process 

wasted because EPA disagrees yet chose 

to ignore multiple notices of the State 

proceedings. Absent application of 

claim preclusion under these 

circumstances, EPA could effectively 

‘‘rescind[ ] state authority to make the 

many sensitive and policy choices that 

a pollution control regime demands.’’ 

Virginia, 108 F.3d at 1406–07 (citation 

omitted). Here, EPA does not intrude 

upon state political processes; it ignores 

them, upsetting ‘‘the balance between 

State and Federal Governments.’’ See 

ADEC, 540 U.S. at 507–17 (Kennedy, J., 

dissenting). 

EPA’s interference with State’s 

prerogatives also violates the Tenth 

Amendment to the United States 

Constitution. ‘‘[T]he Tenth Amendment 

confirms that the power of the Federal 

Government is subject to limits that 

may, in a given instance, reserve power 

to the States.’’ New York v. United 

States, 505 U.S. 144, 157 (1992). See 

also U.S. Const. amend. X (‘‘The powers 

not delegated to the United States by the 

Constitution, nor prohibited by it to the 

States, are reserved to the States 

respectively, or to the people.’’). Here, 

EPA’s rejection of Wyoming’s BART 

decision and imposition of its own not 

only overrides Congress’ resolution to 

leave localized BART analyses in the 

hands of the states, but also infringes on 

Wyoming’s (and its citizens’) Tenth 

Amendment right to have those 

decisions made and adjudicated by the 

State. See Arlington, 133 S.Ct. at 1874 

(although Chevron deference generally 

applies to an agency’s interpretation of 

the scope of its authority, ‘‘[w]here 

Congress has established a clear line, 

the agency cannot go beyond it; and 

where Congress has established an 

ambiguous line, the agency can go no 

further than the ambiguity will fairly 

allow’’); Hodel v. Va. Surface Min. & 

Reclamation Ass’n, 452 U.S. 264, 289 

(1981) (statute survived Tenth 

Amendment scrutiny because it 

‘‘establishes a program of cooperative 

federalism that allows the States, within 

limits established by federal minimum 

standards, to enact and administer their 

own regulatory programs, structured to 

meet their own particular needs,’’ 

instead of ‘‘commandeer[ing] the 

legislative processes of the States by 

directly compelling them to enact and 

enforce a federal regulatory program’’). 

Earlier comments provided similar 

arguments, by noting that Wyoming 

issued its BART Application Analysis 

and proposed permit on May 28, 2009, 

and accepted public comments on its 

analysis and proposed permit for a 

period of 60 days, followed by a public 

hearing on August 6, 2009. Numerous 

comments were received, including 

comments from EPA dated August 3, 

2009. EPA did not comment that 

Wyoming’s proposed BART 

determination violated the CAA. Nor 

did EPA identify any action taken by 

Wyoming in connection with the permit 

that was arbitrary or capricious. While 

EPA regularly encouraged Wyoming to 

consider both SNCR and SCR 

technologies, at no point did EPA advise 

Wyoming that BART controls of LNBs 

and OFA for the Laramie River Station 

would violate the CAA or otherwise be 

arbitrary and capricious. Basin Electric 

appealed its BART permit to the 

Environmental Quality Council, arguing 

that Wyoming’s imposition of additional 

technology requirements in 2018 as part 

of its long term goals exceeded its 

authority for terms contained in a BART 

permit. In its appeal, Basin Electric 

accepted LNB and OFA as BART but 

objected to the additional permit 

condition related to long term strategies. 

Basin Electric served its Petition for 

Review before the Environmental 

Quality Council on EPA, and EPA 

received this notice of appeal, as 

indicated by its acceptance of the 

certified mail forwarding the appeal. 

Thereafter, EPA chose not to comment 

or otherwise participate in Basin 

Electric’s appeal and never informed the 

parties or the Environmental Quality 

Council that EPA considered 

Wyoming’s BART decision to violate the 

CAA. In fact, no contention was made, 

by any person or entity, that the BART 

permit issued by Wyoming violated the 

CAA. 

After litigation, Basin Electric’s 

appeal was settled. Wyoming agreed to 

remove the provision related to future 

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5068 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

control strategies in exchange for Basin 

Electric’s agreement to reduce emission 

levels further than those proposed in the 

original permit and provide even further 

reductions by the end of 2017. This 

proposed settlement was presented to 

the Environmental Quality Council for 

approval. No persons or entities 

objected to the proposed settlement, 

including EPA. 

Only after Wyoming’s regional haze 

SIP was submitted to EPA did EPA 

announce that it found the settlement 

‘‘unreasonable’’ and something with 

which it ‘‘disagreed.’’ Based upon these 

assertions, and without demonstrating 

that the BART permit actually violates 

the CAA, EPA now proposes to void all 

of the extensive administrative 

proceedings, processes, comment 

periods and permit finality accorded 

under state law. 

This violates the explicit 

representations EPA made to the United 

States Supreme Court that decisions to 

over-ride state technology choices are 

rarely undertaken and therefore do not 

pose a threat to state adjudicative 

processes. In footnote 14 of the ADEC 

decision, the Court quoted EPA for the 

proposition that EPA has engaged in 

‘‘restrained and moderate’’ use of its 

authority to overrule specific technology 

choices and has never ‘‘asserted 

authority to override a state-court 

judgment.’’ Based upon this 

understanding, the majority in ADEC 

dismissed concerns expressed by the 

dissent about state/federal relations, 

stating that ‘‘[e]xperience . . . affords 

no grounding for the dissent’s 

predictions that EPA oversight . . . will 

‘rewor[k] . . . the balance between State 

and Federal Governments’ and threaten 

state courts’ independence.’’ ADEC, 540 

U.S. at 493 n. 16. With its proposed 

action here, however, EPA is doing 

precisely what the dissent in ADEC 

predicted, ignoring the extended 

contested case process afforded under 

state law and the final administrative 

litigation resolution reached under state 

law. 

While Basin Electric’s appeal ended 

short of a court proceeding, the 

distinction between a litigated judgment 

in an administrative appeal and a 

judgment in a state court proceeding is 

not significant. In both cases, EPA’s 

proposed action fails to respect the 

cooperative federalism that underlies 

the CAA in general. Under the RHR 

deference to state authority is far more 

compelling than issues related to public 

health under the BACT program, and so 

the Supreme Court’s holding in ADEC 

that EPA may not require ‘‘recourse to 

state processes’’ is inapplicable to BART 

decisions. ADEC, 541 U.S. at 492. EPA 

should conduct itself in accordance 

with the spirit of its representation to 

the Supreme Court that it has never 

sought to override a state-court 

judgment, and should not attempt to 

override a state BART decision that has 

been litigated to an administrative 

conclusion under state law particularly 

where, as here, EPA never advised the 

state adjudicators or the parties to the 

state proceedings that it considered the 

permit to be invalid under the CAA. 

EPA could have participated in the State 

administrative appeal proceeding or at a 

minimum appeared therein to register 

an objection to the settlement 

agreement. Having elected not to do so, 

EPA should respect the result of the 

State’s process. 

Response: EPA disagrees with this 

comment. As an initial matter, as 

provided in detail elsewhere in this 

section and in the docket for this action, 

we provided feedback to the State in our 

comment letters on the proposed SIP 

and in meeting with State and company 

officials; therefore, the State and 

companies were aware of our 

expectations. 

That WAQSR Chapter 6, Section 2 has 

been approved into the SIP does not 

somehow commit EPA to participate in 

Wyoming’s BART permit process. The 

Act and the RHR do not require that 

BART be determined through a permit 

process that is subject to administrative 

appeal or through a permit process at 

all. The SIP-approved provision in 

Chapter 6, Section 2 for notice to EPA 

of permit actions meets the 

requirements of 40 CFR 51.161(d), 

regarding public procedures for review 

of new or modified sources, not BART 

sources. Furthermore, nothing in 

Chapter 6, Section 2 suggests that notice 

to EPA of a permit process somehow 

binds EPA to participate in that process. 

The commenter provides no statutory, 

regulatory, or judicial authority to 

support the proposition that EPA must 

participate in state administrative or 

judicial procedures. With respect to 

state judicial procedures, the Supreme 

Court has stated: ‘‘[i]t would be unusual, 

to say the least, for Congress to remit a 

federal agency enforcing federal law 

solely to state court.’’ Alaska Dep’t of 

Envtl. Conservation v. EPA, 540 U.S. 

461, 493 (2004). Thus the Court 

‘‘decline[d] to read such an uncommon 

regime into the [CAA].’’ Id. The 

commenter’s notion that the ADEC 

opinion (which concerned a BACT 

determination under the PSD program) 

is inapplicable to BART determinations, 

merely because BART determination are 

part of a program to improve visibility 

rather than public health, finds no 

support in the ADEC opinion or 

anywhere in the CAA. We elsewhere 

respond to comments that argue that the 

language of the CAA itself requires a 

greater level of deference to states BART 

determinations. 

With respect to the dissent in ADEC, 

that dissent of course does not represent 

the opinion of the Supreme Court. 

Nonetheless, EPA is not undoing the 

State’s process through the ‘‘mere stroke 

of a pen on the Agency’s letterhead,’’ 

but instead is acting on the State’s 

regional haze submittal through noticeand-comment rulemaking that is 

potentially subject to judicial review. 

Furthermore, EPA is not confusing the 

CAA with the APA; our authority and 

duty to review the State’s regional haze 

SIP for compliance with the CAA and 

the RHR stems from the CAA itself. As 

we discuss elsewhere, EPA’s role in 

reviewing SIPs differs in many key 

aspects from that of a court reviewing 

agency action under the APA. 

Under the CAA, states are required to 

submit SIPS that contain emissions 

limits necessary to protect visibility, 

and EPA is required to disapprove of 

any inadequate SIPs and promulgate 

FIPs in their place. 42 U.S.C. 7491(b)(2); 

Section 7410(c)(1)(A). The CAA does 

not require EPA to participate in state 

proceedings related to its SIP 

submission, nor does it preclude EPA 

from carrying out its statutory duty to 

disapprove an inadequate SIP if EPA 

does not participate in state 

proceedings. The notion that BART 

determinations are insulated from EPA 

review simply because the State has an 

administrative appeal process not only 

has no support in the Act, it is contrary 

to the purposes of the Act and EPA’s 

express obligation to approve only SIP 

submittals that meet the requirements of 

the Act. 

Moreover, any state BART decisions 

made under an unapproved SIP are not 

federally enforceable because any SIP 

‘‘shall not be treated as meeting the 

requirements of this chapter until the 

Administrator approves the entire plan 

revision as complying with the 

applicable requirements.’’ 42 U.S.C. 

7410(k)(3); see also Gen. Motors Corp. v. 

United States, 496 U.S. 530, 540 (1990) 

(holding EPA may bring enforcement 

action under an existing SIP while a SIP 

proposal is pending). 

Finally, this action does not violate 

the Tenth Amendment. The Supreme 

Court has explained that ‘‘where 

Congress has the authority to regulate 

private activity under the Commerce 

Clause, we have recognized Congress’ 

power to offer States the choice of 

regulating that activity according to 

federal standards or having state law 

pre-empted by federal regulation.’’ New 

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34 In contrast, elsewhere in the Act Congress has 

made it explicit that participation in state processes 

is required in order to raise objections with EPA. 

See CAA section 504(b)(2). 

York v. United States, 505 U.S. 144, 167 

(1992); see also U.S. Const. Art. I, 

Section 8, cl. 3 (commerce clause); id. 

Art. VI, cl. 2 (supremacy clause). The 

commenter does not argue that the CAA 

is outside of Congress’ Commerce 

Clause authority. Through the SIP/FIP 

mechanism, the Act offered Wyoming 

the choice of regulating sources in the 

State in accordance with the regional 

haze provisions in the CAA and with 

rules promulgated by EPA under its 

CAA authority; thus the Act itself does 

not violate the Tenth Amendment. With 

respect to this particular action, our 

disapproval of Wyoming’s regional haze 

SIP and our FIP compel no action on the 

part of the State and are not coercive 

vis-a-vis the State. As explained 

elsewhere in these responses, EPA has 

not required Wyoming to adopt specific 

control measures. Instead, our FIP 

contains requirements applicable only 

to some private companies. The Tenth 

Amendment is not implicated by our 

action. 

Comment: Even if EPA can 

contravene the state process, it should 

still require compelling circumstances 

demonstrating a plain and unambiguous 

violation of the CAA before it 

countermands a state proceeding. Such 

a showing is necessary to preserve the 

balance between Federal and state 

governments under the CAA. EPA is 

undermining the significance and 

integrity of the State appeals process as 

well as the State’s authority to 

determine BART. EPA is also making it 

possible for interested parties, including 

environmental groups, to ignore their 

procedural obligation to voice 

objections under State law because they 

can wait to raise them when EPA acts 

on a proposed SIP. EPA chose not to 

participate in the BART permit process 

and the resulting appeals, despite 

knowing that the very NOX control 

equipment at issue in the regional haze 

FIP was being determined. Under the 

principles of comity, EPA should be 

barred from now addressing these issues 

at this late period. Under these 

circumstances, EPA should not be 

allowed to raise complaints with a 

BART permit for the first time in the 

federal proceeding. Failure to do so 

diminishes State law and puts parties 

like Basin Electric into a position where 

they must pursue State remedies to 

avoid finality under State law but find 

that such actions mean nothing in the 

end under the federal process. 

Response: EPA disagrees with this 

comment. Nothing in the CAA sets some 

sort of ‘‘compelling circumstance’’ 

standard for disapproval of a SIP. 

Instead, we have the duty to ensure that 

regional haze SIP submittals meet the 

requirements of the Act and the RHR. 

See CAA Section 110(a)(2)(J) (SIP 

submittals must meet applicable 

requirements of Part C of title I, 

including visibility protection). We do 

not agree that we are prohibited from 

identifying deficiencies in the Wyoming 

SIP after the State rulemaking process is 

complete, and the commenter cites 

nothing in the Act to the contrary. 

Furthermore, many of the concerns 

raised in this action were 

communicated to the State in our 

comment letters and in numerous 

meetings with State officials. With 

respect to comments we have received 

from environmental organizations on 

our proposed action on Wyoming’s SIP, 

the CAA does not require those 

organizations to participate in state 

processes.34 EPA is taking actions 

specified under the CAA in partially 

approving and partially disapproving 

the Wyoming SIP. The CAA also 

specifies the responsibility of EPA to 

issue a FIP when states have not met 

their requirements under the CAA. EPA 

is promulgating this FIP to fill the 

regulatory gap created by the partial 

disapproval. Under the FIP, the State 

retains its authority to submit future 

regional haze SIPs consistent with CAA 

and RHR requirements; we do not 

discount the possibility of a future, 

approvable SIP submission that results 

in the modification or withdrawal of the 

FIP. This rulemaking does not change 

the distribution of power between the 

states and EPA. 

Comment: BART applies to specific 

emission sources and requires 

consideration of facts applicable to 

specific source locations. Unlike a rule, 

or a SIP generally, a BART 

determination effectively adjudicates 

the specific rights and legal obligations 

of individual emissions sources. This 

typically entitles individual source 

owners to substantive procedural rights 

and remedies under state law when a 

BART determination is made. In 

Wyoming, for example, each individual 

source is required to apply for a BART 

Permit. Wyoming law affords the source 

being regulated with special 

opportunities to be heard, both as part 

of the public review of a permit 

application and, in the case of a permit, 

in an adjudicative hearing with 

opportunities to challenge factual 

determinations, call and question 

witnesses, and present evidence. When 

an applicant applies for a BART 

construction permit, the applicant is 

afforded the opportunity to present its 

own views and responses to comments 

to the state agency. If a permit is issued 

or denied, the applicant can appeal the 

permit decision to the Environmental 

Quality Council, which has statutory 

authority to amend, grant, modify, or 

deny the permit. Wyo. Stat. Section 35– 

11–802. This proceeding is conducted 

as a contested case, affording the 

applicant the right to cross-examine the 

Environmental Quality Council’s 

technical experts regarding their BART 

assumptions and conclusions. 

The applicant also can call its own 

experts and witnesses. Wyo. Dep’t of 

Envtl. Quality Rules and Regulations, 

Wyo. Admin. Code ENV PP Ch. 2 

Sections 1–14. With these procedures, 

BART permit applicants can challenge 

the cost estimates and assumptions 

underlying a BART permit decision, 

including making a showing, as Basin 

Electric does here by comment only, 

that EPA’s consultants have ignored 

critical site-specific conditions. 

EPA’s effort to impose BART 

determinations by federal rulemaking 

impermissibly deprives source owners 

of these substantive procedural rights 

afforded under State law. This is one 

reason courts have taken a strong stance 

against EPA imposing specific control 

technologies through partial approval of 

a SIP. Leaving site-specific decisions in 

the hands of the states provides statesponsored procedural rights for the 

individually regulated sources. See 

Virginia, 108 F.3d at 1406–10; Michigan 

v. Thomas, 805 F.2d 176, 186 (6th Cir. 

1986); Bethlehem Steel Corp., 742 F.2d 

at 1035–37 (all holding that EPA may 

not render a state SIP more stringent 

than intended by the state by partial SIP 

approval or imposition of control 

technologies). A BART determination 

requires consideration of complex, casespecific control technologies and makes 

fact-dependent determinations for 

individual named sources, which 

effectively makes the federal BART 

determination an administrative order 

directed specifically at Basin Electric 

rather than a rule generally applicable to 

the public. Under these circumstances, 

EPA cannot order specific emission 

limits and consequent expensive control 

technologies without affording Basin 

Electric a hearing at which it can cross 

examine EPA’s consultants. Basin 

Electric must also be given an 

opportunity to challenge EPA’s 

interpretation of the facts. When EPA 

moves from a quasi-legislative function 

to a quasi-judicial function, as it has by 

making fact-based determinations for 

specific, named sources, it must provide 

the required procedural protections for 

those affected by its actions. See 

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35The cases cited by the commenter, Virginia, 

108 F.3d at 1406–10; Michigan v. Thomas, 805 F.2d 

176, 186 (6th Cir. 1986); Bethlehem Steel Corp., 742 

F.2d at 1035–37, lack any reference to a notion of 

‘‘state substantive procedural rights’’ or ‘‘statesponsored procedural rights.’’ The opinion in 

Virginia concerns the roles EPA and states play 

under the Act; the opinion does not discuss due 

process for owners of individual sources. The 

opinion in Michigan, noting that EPA’s action had 

a rational basis, briefly dismisses a claim that the 

action violated the due process clause of the Fifth 

Amendment by discriminating against business and 

industry. Michigan, 805 F.2d at 185 n.1. Although 

the opinion does not make it explicit, the claim 

there thus seems to have been equal protection as 

incorporated into the Fifth Amendment, not 

procedural due process. See Bolling v. Sharpe, 347 

U.S. 497 (1954). Michigan is not on point. Finally, 

the dicta in Bethlehem Steel speculates that, in the 

case of a FIP, ‘‘EPA might have had to give 

interested persons an opportunity to submit oral as 

well as written comments,’’ Bethlehem Steel, 742 

F.2d at 1032, which EPA did in this case. The dicta, 

which in any case is not binding, does not say that 

EPA’s experts must be available for crossexamination or that EPA is bound by state 

procedures or that the Fifth Amendment to the U.S. 

Constitution recognizes state ‘‘substantive 

procedural rights.’’ 

36See 42 U.S.C. 7607(d)(5). 

37See 5 U.S.C. 553(c); see also U.S. v. AlleghenyLudlum Steel Corp., 406 U.S. 742, 757 (1972). 

38See 42 U.S.C. 7607(d)(5); see also Anaconda 

Co. v. Ruckelshaus, 482 F.2d 1301, 1306 (10th Cir. 

1973). 

39 Vermont Yankee Nuclear Power Corp. v. 

Natural Res. Def. Council, Inc., 435 U.S. 519, 548 

(1978). 

Londoner v. City & Cnty. of Denver, 210 

U.S. 373, 386 (1908) (requiring an 

agency to provide notice and an 

adjudicative hearing for individuals 

suffering specific injury from an agency 

rule); compare Amoco Oil Co. v. EPA, 

501 F.2d 722, 734–35 (D.C. Cir. 1974) 

(agency action was quasi-legislative 

because it did not rely on ‘‘findings of 

fact’’ and evidence to make 

determinations for a single source). 

One administrative law expert 

designated the distinction between rule 

making and adjudication as ‘‘perhaps 

the most critical distinction in all of 

administrative law.’’ Gary Lawson, 

Federal Administrative Law 10 

(American Casebook Series, ThomsonWest 4th ed. 2007). It is an important 

distinction because it separates agency 

decisions that function as policy from 

those that make situational 

determinations. ‘‘A plain[ ] instance of 

administrative adjudication occurs 

where an administrative agency at one 

and the same time makes a rule and 

applies it to a concrete situation . . . 

The essential difference between 

legislation and adjudication is not that 

one looks to the future and the other to 

the past . . . What distinguishes 

legislation from adjudication is that the 

former affects the rights of individuals 

in the abstract and must be applied in 

a further proceeding before the legal 

position of any particular individual 

will be definitely touched by it; while 

adjudication operates concretely upon 

individuals in their individual 

capacity.’’ John Dickinson, 

Administrative Justice and the 

Supremacy of Law in the United States 

16–21 (Harvard University Press 1927), 

quoted in Gary Lawson, Federal 

Administrative Law 10–11(American 

Casebook Series, Thomson-West 4th ed. 

2007). 

In the Proposed Rule, EPA makes 

specific factual findings about 

individual sources. EPA relies on its 

expert consultant Andover to draw 

specific factual conclusions about 

retrofit construction costs for Laramie 

River, yet it affords Basin Electric no 

opportunity to confront its expert over 

the Andover Report’s error-filled 

findings. In order to provide due 

process, a specific party like Basin 

Electric who is singled out and 

subjected to EPA’s fact-based 

determinations must be allowed ‘‘the 

right to support his allegations by 

argument however brief[,] and, if need 

be, by proof, however informal.’’ 

Londoner, 210 U.S. at 386. In the case 

of Laramie River, the requirement for a 

hearing is especially strong because 

‘‘[t]he extent to which procedural due 

process must be afforded the recipient is 

influenced by the extent to which he 

may be ‘condemned to suffer grievous 

loss.’ ’’ Goldberg v. Kelly, 397 U.S. 254, 

262–63 (1970) (citing Joint Anti-Fascist 

Refugee Comm. v. McGrath, 341 U.S. 

123, 168 (1951)). 

EPA must afford these procedural 

rights to Basin Electric if EPA is going 

to assume control over site-specific 

BART determinations, rather than leave 

them to the states as Congress intended. 

Section 169A’s directive that BART be 

determined by the states permits states 

to afford individual emissions sources 

the procedural and other rights that due 

process requires for site-specific 

regulation, and EPA must afford these 

same rights to source owners if it is 

going to federalize the BART program 

by rejecting all state determinations 

with which its technical consultants 

disagree. 

Response: EPA disagrees with this 

comment. EPA’s procedures did not 

deprive Basin Electric of due process. 

First, the comment confuses the issues 

by arguing that under State law Basin 

Electric has ‘‘substantive procedural 

rights’’ and that EPA’s procedures 

somehow deprived Basin Electric of 

these. But due process under the Fifth 

Amendment does not require EPA to 

give exactly the same process that the 

State gave. The commenter provides no 

authority for the existence of something 

called a state ‘‘substantive procedural 

right’’ that the United States is bound by 

the Fifth Amendment to respect.35

Instead, federal due process protects 

substantive fundamental rights and 

procedural rights if the claimant has a 

constitutionally protected life, liberty, 

or property interest. See U.S. Const., 

Amend. V (‘‘nor be deprived of life, 

liberty, or property, without due process 

of law’’). That the comment attempts to 

make a state procedure into a 

constitutionally protected interest by 

calling it a ‘‘substantive procedural 

right’’ is of no avail; the comment 

identifies no attribute of the state 

procedure that makes it into a 

constitutionally protected ‘‘life, liberty, 

or property’’ interest under either the 

text of the Fifth Amendment or the case 

law interpreting that Amendment. See 

Cleveland Bd. Of Educ. v. Loudermill, 

470 U.S. 532, 541 (1985) (‘‘[T]he Due 

Process Clause provides that certain 

substantive rights—life, liberty, and 

property—cannot be deprived except 

pursuant to constitutionally adequate 

procedures. The categories of substance 

and procedure are distinct.’’). Nor does 

Basin Electric have a protected interest 

in the outcome of the State BART 

permit process. There is no ‘‘legitimate 

claim of entitlement’’ to that outcome, 

Board of Regents of State Colleges v. 

Roth, 408 U.S. 564, 577 (1972), as the 

State’s BART determination was always 

subject to review by EPA under the 

CAA. In the end, what the Fifth 

Amendment does potentially protect is 

Basin Electric’s property interest itself, 

not the State procedure. As we now 

explain, EPA’s procedures were 

sufficient to satisfy the requirements of 

due process with respect to Basin 

Electric’s property interest. 

CAA section 307(d) specifies the 

procedures that EPA is required to 

follow in promulgating a FIP. Section 

307(d) does not require adjudicatory 

hearings, nor does it require EPA to 

allow for cross-examination of EPA’s 

consultants.36 Additionally, the 

Administrative Procedure Act only 

requires adjudicatory hearings if a 

particular statute specifies that a rule 

must be made ‘‘on the record after an 

opportunity for an agency hearing.’’ 37

No such requirement is contained in 

section 307(d).38 The Supreme Court 

has explained that courts face an 

extremely high burden in order to 

impose additional procedures beyond 

those specifically required by statute 

because ‘‘unwarranted judicial 

examination of perceived procedural 

shortcomings of a rulemaking 

proceeding can do nothing but seriously 

interfere with that process prescribed by 

Congress.’’ 39 EPA followed the 

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40Kennecott Corp. v. EPA, 684 F.2d 1007, 1020 

(D.C. Cir. 1982). 

41See H.R. Rep. No.95–564, 95th Cong. (1977). 

42 ‘‘[I]dentification of the specific dictates of due 

process generally requires consideration of three 

distinct factors: First, the private interest that will 

be affected by the official action; second, the risk 

of an erroneous deprivation of such interest through 

the procedures used, and the probable value, if any, 

of additional or substitute procedural safeguards; 

and finally, the Government’s interest, including 

the function involved and the fiscal and 

administrative burdens that the additional or 

substitute procedural requirement would entail.’’ 

Eldridge, 424 U.S. at 335. 43 LaChance v. Erickson, 522 U.S. 262, 266 (1988). 

44 Implementation Plans; Approvals, 

Disapprovals and Promulgations: Wyoming; 

Regional Haze State Implementation Plan; Federal 

Implementation Plan for Regional Haze June 10, 

2013 Docket EPA–R08–OAR–2012–0026–0093. 

45Air Quality State Implementation Plans; 

Approvals, Disapprovals and Promulgations: 

Wyoming; Regional Haze State Implementation 

Plan; Federal Implementation Plan for Regional 

Haze; Public Hearings Jul. 8, 2013 Docket EPA– 

R08–OAR–2012–0026–0098; see 42 U.S.C. 

7607(d)(5). 

46Basin Electric Power Cooperative Comments, 

Aug. 6, 2013 Docket EPA–R08–OAR–2012–0026– 

0058; Public Comment from Basin Electric Email 

Aug. 9, 2013 Docket EPA–R08–OAR–2012–0026– 

0148; Transcript from July 26, 2013 Hearings in 

Casper, Wyoming Aug. 8, 2013 Docket EPA–R08– 

OAR–2012–0026–0108 pp. 48–83; Transcript from 

June 24, 2013 Hearings in Cheyenne, Wyoming 

Aug. 15, 2013 Docket EPA–R08–OAR–2012–0026– 

0100 pp. 62–67; Additional Public Comment from 

Basin Electric Laramie River Station BART 

CALPUFF Modeling Analysis Aug. 26, 2013 Docket 

EPA–R08–OAR–2012–0026–0227. 

procedures required by Congress in the 

CAA and EPA believes that no 

additional proceedings are warranted. 

Moreover, Congress specifically 

contemplated and rejected a crossexamination requirement for public 

hearings in section 307.40 The House 

bill contained an opportunity to crossexamine those who made oral 

presentations at the public hearing. 

During Conference Committee, this was 

deleted and replaced with a requirement 

that the rulemaking record remain open 

for thirty days after public hearing to 

allow interested parties to submit 

rebuttal and supplemental 

information.41

The comment cites Goldberg v. Kelly, 

397 U.S. 254, 262–63 (1970) and argues 

that Basin Electric, like the welfare 

recipient in Goldberg, has an especially 

strong claim to an evidentiary hearing 

prior to EPA’s final rulemaking because 

Basin Electric may be ‘‘condemned to 

suffer grievous loss.’’ The comment fails 

to explain why the private interest of 

Basin Electric here is identical to the 

Goldberg welfare recipient’s private 

interest in an evidentiary hearing before 

the termination of welfare benefits. The 

comment also does not examine the 

factors set out in Mathew v. Eldridge, 

424 U.S. 319 (1976),42 for determining 

what due process requires, and so does 

not provide any reason for EPA to think 

that the procedures here were 

inadequate. In particular, the comment 

provides no basis to think that EPA’s 

procedures created a serious ‘‘risk of an 

erroneous deprivation’’ of Basin 

Electric’s interest and that there would 

be any ‘‘probable value’’ to crossexamination. With respect to the alleged 

errors referred to in the comment, Basin 

Electric has made its arguments as to 

why they are errors and EPA has 

responded why they are not. If Basin 

Electric thinks EPA’s responses are 

inadequate, then Basin Electric may 

seek judicial review of EPA’s action 

under section 307(b) of the Act. The risk 

of erroneous deprivation appears small, 

and Basin Electric’s comment gives no 

reason to think otherwise. Basin 

Electric’s comment also does not 

identify any particular value to crossexamination in this context. As the 

comment admits, the matters here are 

ones of technical judgment; they are not 

(for example) eyewitness accounts that 

might benefit from cross-examination. 

EPA also notes that the comment fails 

to discuss ‘‘the Government’s interest, 

including . . . the fiscal and 

administrative burdens’’ that crossexamination would entail. Eldridge 

alternatively identified this third factor 

as ‘‘the public interest.’’ Eldridge, 424 

U.S. at 347. In considering the burdens 

imposed by a full adjudicatory hearing 

on the Government and the public, the 

Tenth Circuit Court of Appeals stated 

(albeit before Eldridge, so not in the 

context of applying the Eldridge factors): 

Unending procedure could be produced by 

an adjudicatory hearing. This could bring 

about unending delay which would not only 

impede but completely stifle congressional 

policy. We do not, of course, condemn the 

trial court’s concern for the rights of [the 

petitioner]. Those rights are important and 

the court should be sensitive to them, but 

those rights are not of such magnitude as to 

overcome congressional policy and the rights 

of the remainder of the community. 

Anaconda Co. v. Ruckelshaus, 482 F.2d 

1301, 1307 (10th Cir. 1973). The 

comment gives EPA no reason to think 

otherwise. 

With respect to the comment’s 

invocation of the BiMetallic-Londoner 

distinction between rulemaking and 

adjudication, it is not clear that 

Londoner applies here, where the 

interests of many parties are at stake. 

See Anaconda, 482 F.2d at 1306 (‘‘The 

fact that Anaconda alone is involved is 

not conclusive on the question as to 

whether the hearing should be 

adjudicatory, for there are many other 

interested parties and groups who are 

affected and are entitled to be heard. So 

the guidelines enunciated by Mr. Justice 

Holmes in Bi-Metallic Investment Co. v. 

State Board of Equalization are not 

applicable.’’) (citation omitted). Even if 

the distinction does apply, due process 

does not per se require a full 

adjudicatory hearing. As the comment 

admits, what due process does require 

is that a person ‘‘have the right to 

support his allegations by argument, 

however brief: and, if need be, by proof, 

however informal.’’ Londoner v. City & 

Cnty. of Denver, 210 U.S. 373, 386 

(1908). Thus the ‘‘core of due process is 

the right to notice and a meaningful 

opportunity to be heard.’’ 43 With 

respect to whether a full evidentiary 

hearing is required, ‘‘differences in the 

origin and function of administrative 

agencies preclude wholesale 

transplantation of the rules of 

procedure, trial, and review which have 

evolved from the history and experience 

of courts. The judicial model of an 

evidentiary hearing is neither a 

required, nor even the most effective, 

method of decision making in all 

circumstances.’’ Eldridge, 424 U.S. at 

348 (citations and quotations omitted). 

EPA believes Basin Electric was 

afforded a meaningful opportunity to be 

heard and present evidence to EPA in 

support of its position. EPA notified the 

public of its proposed rule, held a 

public hearing, and accepted public 

comments for a period of 60 days.44 In 

an effort to provide a greater 

opportunity for public comment on the 

proposed rule, EPA held two additional 

public hearings and extended the 

comment period to 75 days, which goes 

beyond the procedures required by the 

CAA. 45 Basin Electric submitted 

extensive comments prior to the first 

comment deadline, participated in two 

public hearings, and submitted 

additional comments during the 

extended public comment period.46

Basin Electric took full advantage of its 

opportunity to be heard and was not 

denied due process. 

Comment: Section 169A requires the 

State to take into consideration five 

different factors when making its BART 

determination. 43 U.S.C. 7491(g)(2). But 

these factors ‘‘were meant to be 

considered together’’ to arrive at a single 

judgment committed to the State: A 

BART emission limit. American Corn 

Growers, 291 F.3d at 6. Moreover, only 

Wyoming—not EPA—is entitled to 

determine the weight and significance 

to assign costs, feasibility, and visibility 

improvements. 70 FR 39123 (‘‘The State 

makes a BART determination based on 

the estimates available for each 

criterion, and as the CAA does not 

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47See BART Guidelines, 40 CFR Part 51, 

appendix Y, section IV.E.2. 

48Central Arizona Water Conservation Dist. v. 

EPA, 990 F.2d 1531, 1541 (9th Cir. 1993). 

49 291 F.3d at 5–9. 

50 Id. at 7–8. 

51EPA revised the RHR to address the court’s 

decision in American Corn Growers at the same 

time as we promulgated the BART Guidelines. 70 

FR 39104 (July 6, 2005). The revised RHR and the 

Guidelines were upheld by the D.C. Circuit in 

Utility Air Regulatory Group v. EPA, 471 F.3d 1333 

(D.C. Cir. 2006). 

specify how the State should take these 

factors into account, the States are free 

to determine the weight and 

significance to be assigned to each 

factor.’’); see also 40 CFR Part 51, App. 

Y, Section IV.D.5. 

By applying a different assessment of 

costs and visibility than those employed 

by Wyoming in its BART determination, 

and assuming that these assessments 

mandate a different BART outcome, 

EPA’s proposed FIP rejects the State’s 

determinations on cost, feasibility, and 

visibility improvement without 

considering whether, taken together, the 

five statutory factors would compel a 

different result than the one reached by 

Wyoming. The net result is a decision 

imposing a different BART choice than 

that selected by the State by splitting the 

statutory factors and giving them 

separate and independent determinative 

significance—the same legal error EPA 

made in American Corn Growers. The 

‘‘splitting of the statutory factors is 

consistent with neither the text nor the 

structure of the statute.’’ 291 F.3d at 6. 

Wyoming must therefore be afforded 

an opportunity to reconsider its BART 

determination before EPA imposes a 

FIP. This is necessary to preserve State 

primacy in the BART determination. 

States ‘‘determine what is too costly 

(and what is not) for a particular 

source.’’ Am. Corn Growers, 291 F.3d at 

6–7. The actual BART determination 

flows not from any one of the statutory 

factors, but instead from consideration 

of all of them together. That is why it 

is erroneous for EPA to impose its own 

BART choice without explaining how it 

reached that choice upon consideration 

of all five statutory factors. If EPA acts 

to correct alleged errors in the State’s 

cost assessment or visibility modeling, 

EPA must remand the statutory 

evaluation back to the State. Section 

110(c) contemplates that States should 

be given an opportunity to correct any 

‘‘deficiencies,’’ and this statutory 

opportunity should not be taken from 

the State as a result of self-imposed 

consent decree deadlines. Doing so 

destroys State primacy in the BART 

determination. 

It also results in a BART 

determination from EPA that is not 

informed and explained by an 

independent assessment of the five 

statutory factors. EPA’s failure to 

remand the BART determination back to 

the State therefore results in neither the 

State nor EPA making a BART 

assessment that considers all of the 

statutory factors together. While Basin 

Electric acknowledges that the Tenth 

Circuit Court of Appeals recently 

reached a different conclusion in 

Oklahoma v. EPA, 723 F.3d 1201 (10th 

Cir. 2013), that case is not yet final and 

that Court was not presented with, and 

did not consider, the fundamental 

problem associated with EPA’s effort to 

make one of the five statutory factors 

outcome determinative. EPA cannot 

cause an outcome in which no agency 

has actually complied with the statute, 

which is what happens when EPA 

simultaneously disapproves the State’s 

BART assessment on one or two 

statutory factors and then imposes a 

different BART assessment based upon 

cost and visibility factors combined 

with the State’s prior consideration of 

the other factors, as EPA does here. This 

is not a procedural error, but rather an 

error that results in no agency—neither 

the State nor EPA—actually complying 

with the statute by considering all five 

statutory factors together before arriving 

at a BART emission limit. 

Response: EPA does not agree with 

this comment. The RHR and the BART 

Guidelines allow the reviewing 

authority (State, Tribe, or EPA) the 

discretion to determine how to weigh 

and in what order to evaluate the 

statutory factors (cost of compliance, the 

energy and non-air quality 

environmental impacts of compliance, 

any existing pollution control 

technology in use at the source, the 

remaining useful life of the source, and 

the degree of improvement in visibility 

which may reasonably be anticipated to 

result from the use of such technology), 

as long as the reviewing authority 

justifies its selection of the ‘‘best’’ level 

of control and explains the CAA factors 

that led the reviewing authority to 

choose that option over other control 

levels.47 In this action, having 

disapproved the State’s BART 

determinations for NOX at five units, 

‘‘all of the rights and duties that would 

otherwise fall to the State accrue instead 

to EPA.’’ 48 This includes a significant 

degree of discretion in deciding how to 

weigh the five factors, so long as that 

weighing is accompanied by reasoned 

explanation for adopting the technology 

selected as BART, based on the five 

factors, and in accordance with the 

BART Guidelines. EPA has provided a 

detailed explanation of our BART 

evaluation process and five-factor 

analyses in our proposal, and elsewhere 

in this final notice. We have weighed 

the potential energy and non-air 

environmental quality impacts of the 

various control options along with the 

other statutory factors in our BART 

analyses. We have not, as the 

commenter surmises, approved the 

State’s assessment of certain factors and 

disapproved the assessment of others, 

replacing just the factors we have 

disapproved. Instead, for those NOX

BART determinations we are 

disapproving, we have disapproved 

them in their entirety. Then EPA 

independently assessed and weighed 

the five factors. That we adopted the 

State’s assessment of certain factors as 

our own does not change this. Thus the 

split in authority that the commenter 

suggests simply has not occurred. 

We also disagree that our proposal is 

inconsistent with the American Corn 

Growers decision. In American Corn 

Growers, the petitioners challenged the 

original RHR because, among other 

things, the RHR treated one of the five 

statutory factors differently than the 

others by requiring states to consider the 

degree of visibility improvement from 

imposing BART on a group of sources 

rather than on a source-specific basis.49

The court concluded that such a 

requirement could force states to apply 

BART controls at sources without 

evidence that the individual sources 

contributed to visibility impairment at a 

Class I area, which encroached on 

states’ primary authority under the 

regional haze provisions to determine 

which individual sources are subject to 

BART and what BART controls are 

appropriate for each source.50

Therefore, the court vacated the 

visibility improvement part of the 

original RHR as contrary to the statute.51

Contrary to some commenters’ 

suggestions, however, the American 

Corn Growers decision did not address 

EPA’s authority to reject a state’s BART 

determinations for failure to conform to 

the CAA, the RHR, or the BART 

Guidelines. 

Finally, as explained elsewhere in 

this final rule, we have the authority to 

promulgate a FIP concurrently with a 

disapproval action. 

Comment: EPA’s FIP is subject to 

APA review. Accordingly, it cannot 

withstand judicial scrutiny if it is 

arbitrary, capricious, an abuse of 

discretion, or not in accordance with the 

law. See 5 U.S.C. 706(2)(A); Olenhouse, 

42 F.3d at 1574. More generally, a court 

will set it aside ‘‘if the agency relied on 

factors which Congress has not intended 

for it to consider, entirely failed to 

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consider an important aspect of the 

problem, offered an explanation for its 

decision that runs counter to the 

evidence before the agency, or is so 

implausible that it could not be ascribed 

to a difference in view or the product of 

agency expertise.’’ State Farm, 463 U.S. 

at 43. 

A court reviewing agency action 

under the APA must ‘‘ascertain whether 

the agency examined the relevant data 

and articulated a rational connection 

between the facts found and the 

decision made.’’ Olenhouse, 42 F.3d at 

1574 (citing State Farm, 463 U.S. at 43) 

(footnote omitted). A reviewing court 

also must review the agency’s 

explanation to ‘‘determine whether the 

agency considered all relevant factors 

and whether there has been a clear error 

of judgment.’’ Id. (citing, inter alia, 

Citizens to Preserve Overton Park, Inc. 

v. Volpe, 401 U.S. 402, 416 (1971)). The 

court ‘‘‘should not attempt itself to make 

up for . . . deficiencies’’’ in the 

agency’s reasoning and ‘‘may not supply 

a reasoned basis for the agency’s action 

that the agency itself has not given.’’ Id. 

at 1574–75 (quoting State Farm, 463 

U.S. at 43) (emphasis removed). 

As a result, ‘‘‘an agency’s action must 

be upheld, if at all, on the basis 

articulated by the agency itself,’’ and 

‘‘the grounds upon which the agency 

acted must be clearly disclosed in, and 

sustained by, the record.’’ Id. at 1575 

(quoting State Farm, 463 U.S. at 50). In 

its decision, ‘‘[t]he agency must make 

plain its course of inquiry, its analysis 

and its reasoning.’’ Id. Moreover, its 

action must be ‘‘supported by the facts 

in the record.’’ Id. This means the action 

must be supported by ‘‘substantial 

evidence,’’ i.e., ‘‘‘enough to justify, if the 

trial were to a jury, a refusal to direct 

a verdict when the conclusion to be 

drawn is one of fact.’’’ Id. (citation 

omitted). In addition to providing a 

basis for invalidating the agency action, 

an agency’s failure to fully explain and 

support its reasoning warrants a court’s 

grant of less deference to the agency’s 

decisions. See, e.g., Achernar Broad. Co. 

v. FCC, 62 F.3d 1441, 1447 (D.C. Cir. 

1995) (‘‘no deference is due when the 

agency has stopped shy of carefully 

considering the disputed facts’’); NLRB 

v. P*I*E Nationwide, Inc., 923 F.2d 506, 

518 n.16 (7th Cir. 1991) (‘‘deference 

given to an agency is not granted freely, 

it is purchased; the agency must 

exercise its touted expertise and 

‘‘explain the rationale and factual basis 

for its decision’’) (citation omitted). 

Although a court generally will defer 

to an agency’s experts when the agency 

acts within its area of expertise, a court 

will not do so and will invalidate the 

agency’s action where its expert’s 

decisions were arbitrary and capricious. 

See, e.g., Garvey, 256 F.3d at 1036 

(agencies can rely on their own experts 

only ‘‘so long as their decisions are not 

arbitrary and capricious’’) (citation 

omitted). See also NetCoalition v. SEC, 

615 F.3d 525, 539 (D.C. Cir. 2010) 

(‘‘[W]e do not defer to the agency’s 

conclusory or unsupported 

suppositions.’’) (citation omitted); 

Brower v. Evans, 257 F.3d 1058, 1067 

(9th Cir. 2001) (‘‘The deference 

accorded to an agency’s scientific or 

technical expertise is not unlimited. The 

presumption of agency expertise can be 

rebutted when its decisions, while 

relying on scientific expertise, are not 

reasoned.’’) (citation omitted); Nat. 

Resources Defense Council, 725 F.2d at 

768, 771 (the court owed EPA no 

deference where the agency 

‘‘complete[ly] fail[ed] to consider the 

criteria that should inform [its 

decision]’’). Similarly, an agency can 

rely on a model ‘‘only so long as it 

‘explains the assumptions and 

methodology used in preparing the 

model’ and ‘provides a complete 

analytical defense’ should the model be 

challenged.’’ Appalachian Power Co. v. 

EPA, 249 F.3d 1032, 1052 (D.C. Cir. 

2001) (citation and brackets omitted). 

See also Sierra Club v. Costle, 657 F.2d 

298, 333 (D.C. Cir. 1981) (although 

computer modeling undoubtedly ‘‘is a 

useful and often essential tool,’’ an 

‘‘agency must sufficiently explain the 

assumptions and methodology used in 

preparing the model’’ and must 

‘‘provide a complete analytic defense of 

its model (and) respond to each 

objection with a reasoned presentation’’) 

(internal quotation marks omitted), rev’d 

on other grounds, 463 U.S. 680 (1983); 

id. (there must be ‘‘a rational connection 

between the factual inputs, modeling 

assumptions, modeling results and 

conclusions drawn from these results’’). 

Here, in promulgating its FIP, EPA was 

required to do the same thing Wyoming 

did: determine BART by ‘‘tak[ing] into 

consideration’’ the five statutory factors, 

including the costs of compliance, the 

energy and non-air quality 

environmental impacts of compliance, 

any existing pollution control 

technology in use at the source, the 

remaining useful life of the source, and 

the degree of improvement in visibility 

that may reasonably be anticipated to 

result from the use of the technology. 

CAA Section 169A(g)(2), 42 U.S.C. 

7491(g)(2). As the D.C. Circuit explained 

in American Corn Growers, ‘‘the factors 

were meant to be considered together’’ 

in determining BART, as ‘‘[t]he language 

of section 169A(g)(2) can be read in no 

other way.’’ 291 F.3d at 6. 

Accordingly, in order to comply with 

the CAA and withstand APA review, 

EPA must fully explain how it assessed 

and weighed the five BART factors 

together, and it must support that 

explanation with record facts. EPA has 

failed to do so. Additionally, the same 

regulations EPA promulgates for state 

BART determinations must also apply 

to BART determinations made by EPA. 

See CAA Section 169A(b)(2)(A), 42 

U.S.C. 7491(b)(2)(A). Indeed, it would 

be arbitrary and capricious for EPA to 

require a state to follow certain specific 

guidelines in making a BART 

determination, yet to not itself follow 

those same guidelines in making that 

same determination after taking it out of 

the state’s hands. Moreover, EPA has 

suggested that the BART Guidelines and 

Cost Manual are mandatory provisions 

that must be followed in order to 

comply with the CAA. 

Response: We disagree with this 

comment. As detailed elsewhere in this 

document and documented in the 

supporting record, EPA applied the 

BART statutory factors and BART 

Guidelines to each and every BART unit 

that is covered under this rulemaking; 

fully considered all significant 

comments submitted on the proposed 

notices and incorporated those 

comments as appropriate; provided 

basis for the decisions; applied models 

that are specified in the BART 

Guidelines (thus, the opportunity for 

commenters to challenge the specified 

models has long passed); developed and 

provided detailed explanations 

regarding EPA’s model inputs and 

settings; and rationally applied the 

modeling results to the final 

determinations in applying the BART 

and reasonable progress factors. The 

comment does not identify any 

deficiency in any portion of this. 

Comment: Wyoming developed a SIP 

that established reasonable progress 

toward meeting the national goal for 

regional haze as required under the 

CAA Section 169A(a)(1). EPA’s 

establishment of a 2064 goal and glide 

path requires incremental visibility 

improvement for successive planning 

periods. EPA also clearly explains in 

these requirements that the glide path 

and 2064 target date are not binding. 

This provides considerable latitude to 

the individual states that are responsible 

to develop a regional haze SIP that 

makes reasonable progress in a way that 

works to achieve the visibility goals 

over time. 

The State developed and submitted a 

plan that would make substantial 

progress in reducing haze at the affected 

Class I areas. The State followed the 

process in the EPA’s Regional Haze 

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5074 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

Guidelines, yet because it came to a 

different conclusion than EPA, the plan 

was rejected and replaced with EPA’s 

FIP. 

By rejecting the State’s reasonable 

approach, EPA has ignored its own 

requirements and guidance. EPA’s 

issuance of a FIP not only ignores the 

flexibility and authority granted the 

State, it also ignores EPA’s guidance for 

establishing reasonable control 

requirements. 

Response: EPA disagrees with this 

comment. While the RHR does not 

require states to achieve the URP, when 

a state’s selected RPGs do not meet the 

URP, the state must demonstrate, based 

on the four reasonable progress factors, 

that meeting the URP is not reasonable 

and that the selected RPGs are 

reasonable. 40 CFR 51.308(d)(1)(ii). As 

discussed elsewhere, the State did not 

appropriately consider the four 

reasonable progress factors for Dave 

Johnston Units 1 and 2, and to the 

extent that the State relied on its BART 

determinations to show reasonable 

progress for those sources, we have 

disapproved some of those BART 

determinations. While the comment 

states that EPA ‘‘ignored its own 

requirements and guidance,’’ the 

comment does not cite any particular 

requirement that EPA purportedly 

violated. 

Comment: The EPA proposal is 

deficient in large measure because the 

EPA has identified what it views as 

deficiencies in the Wyoming SIP and, 

rather than ordering reconsideration of 

all relevant factors with improved data, 

has created a FIP that suffers from 

analytical errors and arrogates the EPA’s 

role in development and review of SIPs. 

If the EPA was convinced Wyoming’s 

cost estimates were in error, it should 

have directed corrections, rather than 

substituting other flawed data and its 

own judgment. Indeed, it is apparent the 

EPA is not committed to maintaining 

the CAA’s deference to states’ authority 

to formulate workable haze plans. 

Otherwise, the EPA would have 

required Wyoming to correct perceived 

cost estimate errors and subsequently 

reevaluate BART factors. The EPA 

instead, substituted its own errors and 

performed its own evaluation in pursuit 

of its own goals. 

Another commenter argued that EPA 

should not impose a FIP until it has 

issued a final rule disapproving the 

Wyoming regional haze SIP. 42 U.S.C. 

7410(c)(1)(B). EPA should first conduct 

a rulemaking and take public comment 

on the Wyoming regional haze SIP 

submission, issue its determination on 

the regional haze SIP, and then seek 

input from the State. (See 42 U.S.C. 

7410(c)(1)(B); see also 42 U.S.C. 

7607(d)(B) (rulemaking provisions apply 

to ‘‘the promulgation or revision of an 

implementation plan by the 

Administrator under section 7410(c)’’) 

Otherwise, EPA removes the State from 

its assigned role as the one determining 

BART. 

The facts here illustrate this problem. 

EPA initially agreed with Wyoming’s 

BART determinations for Naughton 

Units 1 and 2, and Dave Johnston Unit 

3. EPA then reversed itself, supposedly 

on the basis of new cost and visibility 

information. Without offering Wyoming 

any chance to review the new 

information and issue a new BART 

determination, EPA disapproved 

Wyoming’s BART determination for 

these units, and instituted new BART 

determinations for these units through a 

regional haze FIP. EPA’s failure to 

provide Wyoming an opportunity to 

review this new information, and 

address it through a revised BART 

determination, violates the applicable 

CAA statutes. 

The CAA defines a FIP as a plan (or 

portion thereof) promulgated by the 

(EPA) Administrator to fill all or a 

portion of a gap or otherwise correct all 

or a portion of an inadequacy in a SIP. 

42 U.S.C. 7602(y). Until EPA first 

assesses the Wyoming regional haze SIP, 

develops a proposed rule to approve or 

disapprove the Wyoming regional haze 

SIP, solicits and receives public 

comment on that proposed rule, 

considers the comments and 

information, and takes final action on 

whether (and to what extent) to approve 

the Wyoming SIP, EPA cannot know 

whether there is a ‘‘gap’’ in the 

Wyoming regional haze SIP that needs 

to be filled or whether (and to what 

extent) there is an ‘‘inadequacy’’ in the 

Wyoming regional haze SIP that needs 

to be corrected. Id. Moreover, EPA’s 

failure to obtain public comments prior 

to proposing a regional haze FIP 

deprives Wyoming of an opportunity to 

correct any ‘‘deficiencies’’ identified by 

EPA. Here, where EPA claims to have 

obtained new cost and visibility 

information but did not allow Wyoming 

an opportunity to review and act on the 

new information, EPA’s final 

determination regarding the Wyoming 

regional haze SIP ignores the State’s 

authority under the CAA (including the 

regulatory programs implicated by CAA 

Section169A) to design and implement 

plans to control air pollution control 

within its borders. (See 42 U.S.C. 

7401(a)(3).) Therefore, EPA illegally 

seeks to impose its regional haze FIP 

and should withdraw the same. 

Earlier comments argued that EPA 

cannot impose a regional haze FIP until 

it has issued a final rule disapproving 

Wyoming’s regional haze SIP. 42 U.S.C. 

7410(c)(1)(B) mandates that disapproval 

of all or part of a SIP is a prerequisite 

to promulgation of a FIP. EPA must first 

conduct a rulemaking and take public 

comment on Wyoming’s regional haze 

SIP submission, issue its determination 

on the regional haze SIP, and then 

proceed, or not, with promulgation of a 

regional haze FIP. (See 42 U.S.C. 

7410(c)(1)(B); see also 42 U.S.C. 

7607(d)(B) (rulemaking provisions apply 

to ‘‘the promulgation or revision of an 

implementation plan by the 

Administrator under section 7410(c)’’) 

Response: We disagree with this 

comment. We have the authority to 

promulgate a FIP concurrently with a 

disapproval action. Nowhere in the 

CAA is there language that limits EPA’s 

authority to simultaneously propose a 

FIP and propose disapproval of a state’s 

SIP where there has been a prior finding 

of a failure to submit. This timing for 

FIP promulgation is authorized under 

CAA section 110(c)(1). As has been 

noted in past FIP promulgation actions, 

the language of CAA section 110(c)(1), 

by its terms, establishes a two-year 

period within which we must 

promulgate the FIP, and provides no 

further constraints on timing. See, e.g., 

76 FR 25178, at 25202. Wyoming failed 

to submit the 40 CFR 51.309(g) plan 

elements by December 17, 2007, as 

required under the CAA and our 

implementing regulations. Two years 

later, Wyoming still had not submitted 

these required plan elements. When we 

made the finding in 2009 that Wyoming 

had failed to submit these regional haze 

SIP elements (see 74 FR 2392), that 

created an obligation for us to 

promulgate a FIP by January 2011. We 

are exercising our discretion to 

promulgate the FIP concurrently with 

our disapproval action because of the 

applicable statutory deadlines requiring 

us at this time to promulgate regional 

haze BART determinations to the extent 

Wyoming’s BART determinations are 

not approvable. In these concurrent SIP/ 

FIP actions, if comments or other 

information cause us to reconsider 

portions of our proposed disapproval, 

and instead approve additional portions 

of Wyoming’s SIP, we can readily adjust 

our FIP accordingly by not finalizing the 

FIP portions that are no longer needed, 

as, indeed we are doing in this case. 

Thus, the supposed procedural problem 

the comment identifies simply does not 

exist. 

With respect to the argument that the 

CAA requires EPA, before promulgating 

a FIP, to give additional opportunities to 

Wyoming to address the deficiencies 

that EPA has identified, in fact the 

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opposite is true. Under section 110(c)(1) 

of the CAA, EPA must promulgate a FIP 

within 2 years of a finding of failure to 

submit a required SIP submittal. As 

explained above, the requirement for a 

FIP promulgation in today’s action was 

triggered by a finding published on 

January 15, 2009 (74 FR 2392), that 

Wyoming (among other states) had 

failed to make a submittal to address the 

requirements of 40 CFR 51.309(g). Thus, 

EPA had an obligation to promulgate a 

FIP for the requirements of 40 CFR 

51.309(g) by January 15, 2011, unless 

the State submitted and EPA approved 

a SIP addressing the deficiency. 

Although we are approving portions of 

Wyoming’s SIP that meet the 

requirements of 51.309(g), we are 

disapproving other portions and, 

therefore, are still under an obligation to 

promulgate a FIP for those portions. In 

considering a similar argument to that 

made by the commenter, the Tenth 

Circuit Court of Appeals has stated: 

Once the EPA issued findings that 

Oklahoma failed to submit the required SIP 

under the Regional Haze Rule, the EPA had 

an obligation to promulgate a FIP. The statute 

itself makes clear that the mere filing of a SIP 

by Oklahoma does not relieve the EPA of its 

duty. And the petitioners do not point to any 

language that requires the EPA to delay its 

promulgation of a FIP until it rules on a 

proposed SIP. As the EPA points out, such 

a rule would essentially nullify any time 

limits the EPA placed on states. States could 

forestall the promulgation of a FIP by 

submitting one inadequate SIP after another. 

Oklahoma v. EPA, 723 F.3d 1201, 1223 

(10th Cir. 2013). 

Finally, as explained elsewhere, 

under the FIP, the State retains its 

authority to submit future regional haze 

SIPs consistent with CAA and RHR 

requirements; which may result in the 

modification or withdrawal of the FIP. 

Comment: The CAA and the RHR 

provide substantial discretion to states 

to determine how best to make 

reasonable progress toward achieving 

natural visibility conditions in 

designated areas. Reasonable progress— 

the touchstone of the regional haze 

program—is a flexible benchmark. See 

42 U.S.C. 7491(g)(1). In recognition of 

this overarching flexibility and the need 

to account for local conditions, Congress 

directed EPA to allow states discretion 

in how they determine the BART for 

improving visibility. Id. Section 

7491(b)(2)(A); Am. Corn Grower Ass’n v. 

EPA, 291 F.3d 1, 8 (D.C. Cir. 2002) 

(‘‘Congress intended the states to decide 

which sources impair visibility and 

what BART controls should apply to 

those source.’’); see also 40 CFR 

51.308(e)(1)(ii)(A). 

Against this backdrop of state 

discretion, the CAA requires SIPs to 

include: generally, ‘‘such emission 

limits, schedules of compliance and 

other measures as may be necessary to 

make reasonable progress toward 

meeting the national goal [of natural 

visibility conditions in national parks 

and wilderness areas],’’ 42 U.S.C. 

7491(b)(2); ‘‘a long-term (ten to fifteen 

years) strategy for making reasonable 

progress toward meeting the national 

goal,’’ id. Section 7491(b)(2)(B); and 

more specifically, a plan for particular 

sources to ‘‘procure, install, and operate, 

as expeditiously as practicable (and 

maintain thereafter) the best available 

retrofit technology,’’ id. Section 

7491(b)(2)(A). 

Response: The CAA gives states 

substantial but not unfettered discretion 

in determining BART and reasonable 

progress. We have already largely 

addressed the assertions in this 

comment in our responses to comments 

on our legal authority. Furthermore, as 

a hypothetical example, EPA would not 

defer to a state determination that the 

remaining useful life of a source is one 

year if relevant evidence indicates the 

remaining useful life is 20 years. Limits 

on state discretion are inherent in the 

CAA and our regulations; otherwise, 

states would be free to reach decisions 

that are arbitrary and capricious or 

inconsistent with the purpose behind 

the CAA and EPA’s regulations. As we 

have stated, while we have approved 

much of Wyoming’s SIP submittal, those 

elements which we have disapproved 

and for which we are finalizing a FIP 

thwart the goals stated by Congress in 

CAA section 169A and underlying the 

RHR. Those statutory and regulatory 

provisions cannot be simply dismissed 

under the mantle of state discretion. 

Comment: On May 28, 2009, 

Wyoming published its BART 

application analyses for the PacifiCorp 

and Basin Electric facilities subject to 

BART. Wyoming solicited public 

comments on the analyses and to that 

end held public hearings. EPA 

commented on Wyoming’s analyses on 

August 3, 2009. EPA was fully aware of 

Wyoming’s BART proposals, but, at that 

time EPA gave no indication that 

Wyoming’s BART proposals violated the 

CAA or were unreasonable. 

Both PacifiCorp and Basin Electric 

ultimately challenged Wyoming’s BART 

determinations before the Wyoming 

Environmental Quality Council. See 

Appeal & Pet. for Review of BART 

Permits, In re BART Permit Nos. MD– 

6040 and MD–6042, No. 10–2801 (Wyo. 

Envtl. Quality Council Feb. 26, 2010) 

(PacifiCorp Petition); Appeal & Pet. for 

Review, In re Basin Electric Power 

Coop., No. 10–2802 (Wyo. Envtl. 

Quality Council March 8, 2010) (Basin 

Petition). The Environmental Quality 

Council is an independent 

administrative body charged with 

adjudicating issues arising under 

Wyoming environmental law, including 

BART determinations. See Wyo. Stat. 

Ann. Sections 35–11–111, 112. 

Both Basin Electric and PacifiCorp 

served their petitions for review on EPA 

Region 8. EPA was again fully apprised 

of Wyoming’s final BART decisions, as 

well as the appeals of those decisions. 

EPA elected not to participate in those 

proceedings, and, again, provided no 

indication that EPA viewed Wyoming’s 

BART decisions as invalid. 

After filing motions for summary 

judgment, PacifiCorp and Basin Electric 

both ultimately settled their litigation 

with the State. The Environmental 

Quality Council approved the 

settlements after providing an 

opportunity for public comment. EPA 

did not comment on the settlement 

agreements. Because no aggrieved 

person appealed the Council’s decision 

approving the settlements, the permit 

decisions became final by operation of 

law. Wyoming therefore incorporated 

the BART permits into its SIP. 

Years later, when EPA proposed 

action on Wyoming’s SIP, EPA raised 

for the first time its disagreement with 

the BART decisions that PacifiCorp, 

Basin, and Wyoming had already 

litigated to conclusion. Because EPA 

had the opportunity to participate in the 

litigation and elected not to, EPA is now 

precluded from collaterally attacking 

those permit decisions. See, e.g., ADEC, 

540 U.S. at 490 n.14. To conclude 

otherwise—that EPA can forgo 

participation in state adjudications only 

to later attack the conclusions of those 

state processes—is to give EPA the 

power to nullify state court judgments. 

Id. at 1015 (Kennedy, J., dissenting). 

Congress did not intend to so empower 

EPA to turn federalism on its head 

through the regional haze program. 

Response: EPA disagrees with this 

comment. First, the comment does not 

identify any way in which EPA is 

precluded from exercising its authority 

and duty under the CAA to ensure that 

SIP submittals meet the requirements of 

the Act. The notion that a state BART 

determination is insulated from the 

requirements of the Act merely because 

the state has an administrative appeal 

process is contrary to the Act itself as 

well as the Supremacy Clause of the 

U.S. Constitution. Had Congress wanted 

to require EPA to participate in state 

rulemaking or permit processes, 

Congress would have explicitly stated 

this in the Act. With respect to the 

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52As explained elsewhere in this document, EPA 

has accepted some of the costs submitted in 

response to the proposed notice developed for 

Basin Electric, but not others. 

ADEC dissent, it is just that, a dissent. 

Even if the dissent were somehow 

relevant, EPA is not nullifying a state 

court judgment. The Wyoming 

Environmental Quality Council is not 

within the State judicial branch. It is an 

executive agency. The members are 

appointed by the Governor and serve at 

the Governor’s pleasure. See Wyo. Stat. 

Ann. Section 35–11–111(a) (‘‘Council 

members shall be appointed by the 

governor with the advice and consent of 

the senate. The governor may remove 

any council member as provided in 

W.S. 9–1–202.’’); Section 9–1–202(a) 

(‘‘[A]ny person may be removed by the 

governor, at the governor’s pleasure, if 

appointed by the governor to serve . . . 

as a member of a state board or 

commission.’’). 

Furthermore, EPA’s comments to 

Wyoming on its proposed SIP and 

BART permits, which are in the docket 

for this action, emphasized that we 

would only come to a final conclusion 

regarding the adequacy of Wyoming’s 

BART determinations when we acted on 

Wyoming’s regional haze SIP revision, 

through public notice and comment 

rulemaking. While we may have been 

silent on some issues, silence from the 

EPA does not signify implicit approval. 

Any lack of participation by the EPA in 

the state administrative appeal 

proceeding or failure to register an 

objection to the settlement agreement is 

not an indication that a state’s proposed 

BART determination will be approved 

following its submittal as part of a larger 

regional haze SIP, as discussed in 

greater detail elsewhere in this 

document. Wyoming is required to 

adopt a final BART determination as 

part of its regional haze SIP. As 

explained elsewhere in this document, 

once a state submits a SIP to the EPA, 

we are authorized to approve, partially 

approve, or disapprove the SIP, and we 

have the duty to assure that the SIP 

submittal complies with the 

requirements of the Act. The statutory 

scheme explicitly provides for this. 

Alaska Depart of Environmental 

Conservation v. Environmental 

Protection Agency, 540 U.S. 461 (2004) 

concerned EPA’s response to ADEC’s 

issuance of a permit to a mine that 

provided, as BACT, unreasonably low 

NOX controls. Accordingly, EPA issued 

three orders prohibiting ADEC from 

granting the permit unless it 

satisfactorily documented its reasoning 

behind its BACT determination. The 

Ninth Circuit held the three orders were 

a proper exercise of EPA’s authority and 

discretion. The Supreme Court affirmed. 

EPA agrees with the commenter that 

EPA made representations to the Court 

stating the need to accord ‘‘appropriate 

deference’’ to states’ determinations. 

EPA also agrees that we made the 

representation that we have never 

asserted our authority to override a 

state-court judgment, and therefore, the 

fear that EPA will threaten state courts’ 

independence is unfounded. 

While EPA did make these 

representations, these representations 

are not inconsistent with EPA’s decision 

to disapprove Wyoming’s BART 

determination for Laramie River Station. 

As explained above, we are not 

overriding a state-court judgment. 

Furthermore, the notion that a state 

administrative appeal process can 

insulate a BART determination from 

federal requirements itself ‘‘turns 

federalism on its head.’’ See U.S. 

Constitution, Art. VI, cl. 2 (supremacy 

clause). 

In this instance, some of Wyoming’s 

BART determinations were 

unreasonable in terms of cost 

effectiveness and other factors as 

detailed elsewhere in this document 

(detailed descriptions of the cost 

assumption are described in the 

comments specific to the units 

elsewhere in this document).52 Finding 

Wyoming’s BART determinations to be 

unreasonable is a ‘‘restrained and 

moderate’’ use of EPA’s statutory 

authority. See 540 U.S. at n.14. 

Following EPA’s issuance of orders to 

ADEC for failing to establish a 

reasonable BACT, the Court noted, 

‘‘Only when a state agency’s BACT 

determination is ‘not based on a 

reasoned analysis’ . . . may EPA step in 

to ensure that the statutory requirements 

are honored.’’ 540 U.S. 461, 490. In the 

case of Wyoming’s BART 

determinations, EPA adhered to a 

similar role. Upon finding some of 

Wyoming’s BART determinations 

unreasonable, EPA disapproved those 

determinations and proposed an 

alternative standard. 

EPA continues to acknowledge the 

importance of significant deference to 

state authorities regarding their BART 

determinations since they are in the best 

position to make these determinations 

given their close familiarity with the 

unique characteristics of their particular 

area. This structure encourages 

cooperative federalism, a principle that 

underlies the CAA. However, this 

‘‘initial responsibility’’ does not permit 

the state to make unreasonable BART 

determinations. See 540 U.S. at 464. 

EPA is not using its authority to 

disapprove part of a state’s SIP as a way 

to override legitimate administrative 

litigation reached under state law. 

Rather, we are enforcing a requirement 

of the CAA concerning anthropogenic 

impairment of visibility by ensuring that 

reasonable BART controls are 

considered. State adjudicative processes 

are not threatened because states are 

free to use these processes to reach their 

own BART determination, provided that 

this determination is reasonable and 

consistent with the CAA. 

Comment: Nowhere does the Act 

command national consistency in BART 

cost estimates and, to the contrary, by 

allowing states to make individualized 

BART determinations, Congress 

demonstrated that consistency was not 

intended to be a component of the 

regional haze program, save for the 

uniform objective of attaining natural 

visibility conditions. The commenter 

indicated that the RHR takes the same 

approach, allowing states wide 

discretion to conduct BART analyses, 

and that the BART Guidelines 

encourage states to take into account 

site-specific conditions that impact 

costs. In light of these authorities, the 

commenter believes that the EPA cannot 

disapprove the State’s cost analyses 

simply because they do not fit within 

the EPA’s preferred vision of national 

uniformity. 

Another comment argued that EPA 

claimed that the State failed to follow 

the CCM, and the EPA supported this 

claim by quoting the CCM as saying that 

the EPA prefers consistency in control 

cost estimates (78 FR 34749). The CAA, 

the RHR, the BART Guidelines, and the 

fact that different sources have vastly 

different designs belie the EPA’s 

preference for ‘‘consistency.’’ Nowhere 

does the Act command national 

consistency in BART cost estimates and, 

to the contrary, by allowing states to 

make individualized BART 

determinations, Congress demonstrated 

that consistency was not intended to be 

a component of the regional haze 

program, save for the uniform objective 

of attaining natural visibility conditions. 

The commenter indicated that the RHR 

takes the same approach, allowing states 

wide discretion to conduct BART 

analyses, and that the BART Guidelines 

encourage states to take into account 

site-specific conditions that impact 

costs. In light of these authorities, the 

commenter believes that the EPA cannot 

disapprove the State’s cost analyses 

simply because they do not fit within 

the EPA’s preferred vision of national 

uniformity. 

Response: As we explain in our 

response to other comments in the legal 

issue section, we have authority to 

assess the reasonableness of a state’s 

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53CAA section 169A(b) and 40 CFR 

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

analysis of costs; and a state’s discretion 

must be reasonably exercised in 

compliance with the applicable 

requirements. While we agree that sitespecific challenges must be identified 

and factored into the cost effectiveness 

analysis, the SIP elements disapproved 

elsewhere in this document items are 

not ‘‘site-specific conditions,’’ but rather 

use of the wrong costing methodology 

and improper categorization of costs, as 

well as other issues. An erroneous 

analysis of costs, whether due to 

methodological or to data flaws, 

prevents a state from conducting a 

meaningful consideration of the cost of 

compliance factor. North Dakota v. U.S. 

EPA, 730 F.3d 750, 761 (8th Cir. 2013). 

EPA is not relegated to a ministerial 

role. Id. We have not replaced cost 

estimates, modeling analyses and other 

SIP elements submitted by the State 

solely for the purpose of ensuring 

consistency across states. When a state 

or source puts forward costs estimates 

that are atypical, it is reasonable for us 

to scrutinize such estimates more 

closely to determine whether they are 

reasonable or inflated. Also, given that 

the assessment of costs is necessarily a 

comparative analysis and one marker of 

reasonableness, it is reasonable to insist 

that certain standardized and accepted 

costing practices be followed absent 

unique circumstances. Such consistency 

is particularly relevant for BART 

determinations at fossil-fuel fired power 

plants having a capacity in excess of 750 

MW, which must be made pursuant to 

the BART Guidelines.53 To the extent a 

BART determination for such a power 

plant is plainly inconsistent with EPAapproved determinations for similar 

sources, it is more likely to be 

inconsistent with the RHR and the 

BART Guidelines and therefore to 

warrant greater scrutiny for compliance 

with the applicable requirements. 

Comment: Basin Electric submits with 

these comments an updated cost 

estimate for SNCR and SCR emission 

controls at Laramie River Station. That 

report states that in Sergeant & Lundy’s 

opinion SNCR would likely achieve a 

48% reduction from EPA’s input 

emission rate. However, when it made 

its BART determination the State did 

not have the benefit of this report and 

made its judgment based on the best 

information available at the time. EPA, 

in its August 3, 2009 comments on 

Wyoming’s BART permit for Laramie 

River Station, stated that it estimated 

that ‘‘SNCR can reduce NOX by 40%– 

50% for most large boilers (EPA Air 

Pollutions Control Cost Manual, 2002, 

Sixth ed., EPA–452–02–001. Section 

4.2, Chapter 1, pg. 1–3.).’’ States are 

entitled to rely on information available 

at the time they make BART 

determinations, and EPA may not 

disapprove a state’s BART based on 

information that becomes available 

later. This principle seems particularly 

appropriate when at the time EPA itself 

asserts the bona fides of information 

similar to that relied upon by the State. 

Response: We disagree with this 

comment. EPA is required to take new 

information submitted as part of this 

rulemaking into consideration. Indeed, 

EPA has taken into consideration the 

updated cost estimate information 

submitted by Basin Electric for SNCR 

and SCR at Laramie River Station, 

which was not available to Wyoming. 

See Sierra Club v. EPA, 671 F.3d 955, 

967 (9th Cir. 2012) (‘‘if new information 

indicates to EPA that an existing SIP or 

SIP awaiting approval is inaccurate or 

not current, then, viewing air quality 

and scope of emissions with public 

interest in mind, EPA should properly 

evaluate the new information and may 

not simply ignore it without reasoned 

explanation of its choice’’); see also 42 

USC 7607(d)(6)(B) (‘‘The promulgated 

rule shall also be accompanied by a 

response to each of the significant 

comments, criticisms, and new data 

submitted . . . during the comment 

period.’’) (emphasis added). Thus, EPA 

is required, at a minimum, to take new 

information into account during the SIP 

approval process and, if necessary, alter 

its final decision accordingly. As 

explained in detail elsewhere, section 

307(d) of the Act explicitly provides for 

the consideration of information 

developed after the proposed rule is 

published. 

EPA considered this new cost 

information and the assessment of our 

evaluation regarding this information 

appears elsewhere in this document. 

Comment: EPA is again overstepping 

its role in this process. Wyoming 

completed its BART analysis in 2009, 

more than three years ago, and it would 

have been impossible to incorporate the 

alleged urea price increases in that 

analysis. Simply put, Wyoming’s BART 

determination is hardly arbitrary and 

capricious simply because it failed to 

take into account alleged urea price 

increases some three years after 

Wyoming completed its BART analysis. 

Wyoming did precisely what the 

Guidelines instruct: made a BART 

determination based on information 

available before the close of its public 

comment period. 40 CFR Part 51, App. 

Y., Section IV(D)(2)(3). To disapprove 

Wyoming’s cost analysis based on 

information that was not available to the 

State would be to employ a ‘‘gotcha’’ 

approach that runs contrary to EPA’s 

own regulations and counter to EPA’s 

commitment to do its job fairly and 

objectively. If the urea issue is truly 

material, EPA should, at a minimum, 

allow Wyoming to consider whether 

this new information would affect its 

BART determination before 

disapproving that determination. 

Another commenter suggests that urea 

prices are relevant to operating costs for 

SNCR but are not relevant to SCR. If the 

State’s urea prices were too low, that 

would mean the State had 

underestimated the cost of SNCR, which 

is what EPA claims in its proposal. 78 

FR 34748. Such an underestimate would 

have no material impact on the State’s 

BART determination and thus provides 

no basis for EPA’s disapproval. Once 

again, this is a fact that in retrospect 

supports the State’s BART decision, 

rather than demonstrating it to be 

arbitrary. If Wyoming’s estimate of the 

cost of SNCR should have been higher, 

as EPA maintains, the higher cost would 

tend to add further support for rejecting 

SNCR—the more expensive a control 

technology, the stronger the reason to 

reject it as BART. So if EPA is correct 

in claiming the State’s assumed urea 

price was too low, it is incorrect in 

claiming this made a difference in the 

State’s BART determination. A mistake 

in a cost assumption, if there was a 

mistake, is not a per se reason to reject 

a BART determination. Such a mistake 

would help support disapproval of a 

cost analysis and resulting BART 

determination only if it overstated costs 

in a material way and thus tended to 

make a technology appear significantly 

more costly than it actually would be. 

Response: We disagree with portions 

of these comments. As we explained in 

responses to similar comments below in 

the section on Overarching Comments 

on BART, we agree that a change in the 

market price of urea, in and of itself, 

may have not provided EPA sufficient 

grounds for rejecting the State’s SNCR 

analysis. However, we identified a 

number of deficiencies in our proposed 

rule, that when taken collectively, led 

EPA to conclude that Wyoming’s 

consideration of the costs of compliance 

and visibility improvement for the EGUs 

was inadequate and did not properly 

follow the requirements in the BART 

Guidelines and statutory requirements. 

78 FR 34748. Therefore, regardless of 

the market price of urea, EPA would 

have reached the same conclusion. 

Additionally, EPA is required to take 

into account the urea price information 

and we have taken that technical 

information into account as detailed 

elsewhere in this final notice and the 

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docket. As explained in detail above, 

while this information was not available 

to the State, EPA nonetheless had a duty 

to consider any new information 

submitted during public comment when 

reviewing the states’ SIPs. See Sierra 

Club v. EPA, 671 F.3d 955, 967 (9th Cir. 

2012). 

Therefore, while the new urea cost 

information was not available to the 

State, EPA was nonetheless obligated to 

consider any new information 

submitted during public comment when 

reviewing the states’ SIPs. Thus, EPA is 

required, at a minimum, to take new 

information into account during the SIP 

approval process and, if necessary, alter 

its final decision accordingly. Regarding 

the comment that Wyoming should get 

an opportunity to consider this 

information before EPA takes final 

action, see responses to similar 

comments above. 

Comment: EPA relies on its 

consultant’s report as a basis for 

rejecting Wyoming’s cost analysis for 

SNCR and proposing to disapprove the 

State’s NOX BART for Laramie River 

Station. 78 FR 34748. EPA may not 

reject the State’s estimate of the NOX

reduction achievable with SNCR just 

because EPA’s consultant disagrees with 

the State. Under the appropriate legal 

standard, EPA must defer to the State’s 

technical assessment absent 

demonstration it is arbitrary and 

capricious—which EPA has not 

attempted to prove. Nor can EPA mount 

a credible argument that its consultant’s 

report is superior to the State’s. The 

report does not comply with EPA’s own 

Guidelines, as interpreted by EPA, and 

ignores site-specific conditions that 

have a huge impact on the cost of NOX

emission controls. Given the flaws in 

the report, EPA’s reliance on it is not 

only arbitrary and capricious, but 

downright astonishing. 

Response: We disagree with the 

commenter’s assertion that we have 

rejected the State’s estimate of cost 

analysis for SNCR and the NOX

reduction achievable with SNCR just 

because we disagree with the State. 

During the public comment period on 

our proposed rulemaking, Basin 

Electric, as well as other parties, 

submitted information concerning cost 

estimates. We have placed this 

information to the docket and as 

explained elsewhere in this document, 

taken it into account as part of this final 

rulemaking. This final action clearly 

explains the basis for our disapproval of 

State’s NOX BART for Laramie River 

Station, based on comments received 

and our cost and visibility analysis, we 

are disapproving others. We also 

disagree that we are required to defer to 

the State’s technical judgments and to 

apply an arbitrary and capricious 

standard in reviewing the State’s SIP 

submittal. We respond in detail to those 

arguments elsewhere. 

Comment: This commenter stated that 

even if the Wyoming’s cost analyses 

were revised to reflect the EPA’s high 

urea prices, the average cost 

effectiveness of SNCR would still be 

consistent with the State’s original 

analyses. The commenter noted that the 

EPA’s average and incremental cost 

effectiveness numbers for SNCR fall 

well below the values considered by the 

State to be cost effective and therefore 

are consistent with the State’s original 

conclusion that the costs of compliance 

from the application of SNCR to the 

EGUs were reasonable. The commenter 

added that even if the State-analyzed 

urea costs are adjusted to reflect EPA’s 

urea costs, the average cost effectiveness 

values remain below $2,600 dollars per 

ton of NOX reduced and with 

incremental cost effectiveness values 

below $5,000 dollars per ton of NOX

reduced (citing commenter’s Exhibit 

10), and those values are consistent with 

the State’s original conclusion. The 

commenter believes that it is clear that 

the EPA does not take issue with 

Wyoming’s cost analyses, but rather 

Wyoming’s BART conclusions. The 

commenter contended that the EPA’s 

allegation that Wyoming incorrectly 

analyzed costs is simply an excuse for 

EPA to override Wyoming’s BART 

determinations because EPA does not 

like the result. The commenter asserted 

that the EPA must explain why 

Wyoming’s ultimate BART 

determinations run afoul of the law, 

rather than hold up allegations of 

technical deficiencies as window 

dressing for EPA to take over the role 

Congress gave to states to make BART 

determinations. 

Response: We disagree with this 

comment. As we explained earlier in 

this final notice, 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 the CAA. EPA’s review 

of SIPs is not limited to a ministerial 

type of automatic approval of a state’s 

decisions. EPA must consider not only 

whether the State considered the 

appropriate factors but acted reasonably 

in doing so. EPA has the authority to 

issue a FIP either when EPA has made 

a finding that the State has failed to 

timely submit a SIP or where EPA has 

found a SIP deficient. Here, EPA has 

authority on both grounds, and we have 

chosen to approve as much of the 

Wyoming SIP as possible and to adopt 

a FIP only to fill the remaining gap. Our 

action today is consistent with the 

statute. We disagree that technical 

deficiencies are mere ‘‘window 

dressing’’; instead, appropriate technical 

analyses are fundamental to a reasoned 

BART determination. Finally, details of 

technical issues regarding urea costs are 

addressed elsewhere in this rule. 

Comment: No single factor justifies 

disapproval of the State’s BART. The 

authority to determine BART belongs to 

states, and BART determinations must 

be based on all five BART factors 

weighted together. States are 

responsible for balancing those factors 

and deciding how much weight to give 

to each factor. 70 FR 39123, 39130, 

39170. To show that Wyoming had been 

arbitrary and capricious in making a 

BART determination, EPA would bear a 

heavy burden—a burden that it does not 

even begin to meet based on a 

disagreement that the State’s cost 

analysis for SCR was in error. EPA’s 

own incremental cost effectiveness for 

SCR is more than $5000/ton, which is 

a high cost even if lower than the 

State’s. EPA makes no attempt to argue 

that the difference between its 

incremental cost effectiveness and the 

State’s would have changed the State’s 

selection of BART or rendered the 

State’s BART arbitrary or illegal. 

Response: We responded to similar 

comments elsewhere. First, as we 

explain in detail elsewhere, we disagree 

that EPA’s review of a state’s SIP 

submittal is limited to an arbitrary and 

capricious standard. Second, as we 

explain in detail elsewhere, we disagree 

that states have the sole authority to 

determine BART. Third, as we explain 

in detail elsewhere, we disagree that a 

‘‘harmless error’’ standard should be 

applied. 

Comment: In June of 2012, EPA 

issued a proposal that analyzed the cost 

effectiveness of various NOX control 

technologies at Laramie River Station. 

77 FR 33051. Although EPA disagreed 

with the State’s NOX BART 

determination for Laramie River Station, 

EPA accepted and relied on the State’s 

cost analysis for NOX controls, which 

concluded that SCR would cost $3305 

per ton of NOX removed, while SNCR 

would cost $2036 per ton of NOX

removed. 77 FR 33051, Table 30 (These 

values are for Unit 3. The State’s 

conclusions for Units 1 and 2 were 

similar.) In light of these estimates, EPA 

eliminated SCR from consideration at 

Laramie River Station ‘‘because the cost 

effectiveness value is significantly 

higher than LNBs with OFA and there 

is a comparatively small incremental 

visibility improvement over LNBs with 

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OFA.’’ Id. EPA now expressly disavows 

its earlier finding, apparently as a result 

of comments that raised questions with 

the State’s analysis and a cost analysis 

prepared by Andover. 78 FR 34740, 

34748. Yet EPA’s own cost analysis— 

based entirely on the findings of a 

technically infirm and legally 

indefensible contractor analysis of the 

costs of SNCR and SCR at Laramie River 

Station—concludes that the cost 

effectiveness of SCR at Laramie River 

Station ranges from $3,589 to $3,903, 

which exceed Wyoming’s cost 

effectiveness demonstrations. Id. at 

34774–34775. For EPA to take the 

position SCR is now cost effective, 

based on a higher estimate of tons NOX

removed that is inconsistent with its 

earlier position and without any further 

explanation, is arbitrary and capricious. 

Cf. W. States Petroleum, 87F.3d at 284 

(EPA ‘‘may not depart, sub silentio, 

from its usual rules of decision to reach 

a different, unexplained result in a 

single case’’). 

Response: We disagree with this 

comment. EPA’s June 2012 Federal 

Register notice was a ‘‘proposal,’’ not a 

final agency action. Based on additional 

information and analyses, on June 10, 

2013 we reproposed to partially approve 

and partially disapprove the Wyoming 

SIP. Therefore, contrary to commenter’s 

assertions, we had not taken a final 

agency action in June 2012 and the 

Western States Petroleum case in not 

applicable here. In addition, we fully 

explained the reasons for the changes in 

our proposed action. We note that 

adjustments in cost-effectiveness of SCR 

were not the only factor in our proposed 

changes. We also revised modeling of 

visibility benefits of SNCR and SCR and 

cost-effectiveness of SNCR, which 

played a role in our reproposed BART 

determination. 

2. Compliance With Section 307(d) 

Comment: EPA cannot adopt a FIP 

using a procedure that simultaneously 

proposes both disapproval of a SIP 

BART determination and a different 

BART determination as a FIP. Doing so 

results in a violation of Section 307(d), 

which requires EPA to first announce 

the ‘‘statement of basis and purpose’’ 

that accompanies the FIP, including a 

summary of ‘‘the factual data on which 

the . . . rule is based’’ and ‘‘the major 

legal interpretations and policy 

considerations underlying the . . . 

rule.’’ 42 U.S.C. 7607(d)(1)(B), (d)(3)(A) 

& (C), (d)(6)(A). The reason is simple. 

BART determinations are inherently 

technical evaluations that consider 

costs, feasibility, potential plant shutdowns, etc. The same requirement 

would apply to any BART 

determination undertaken by EPA as 

part of a FIP. Thus, any response by 

EPA to comments that Basin Electric 

and others submit in support of 

Wyoming’s BART determination will 

necessarily have to deal with new 

detailed technical information and data, 

particularly when, as here, EPA has 

initially proposed to reject a BART 

determination as inadequately 

supported and thus has invited 

extensive comments. EPA’s responses to 

comments will then necessarily become 

part of the grounds supporting any new 

BART determination in a FIP, but will 

not have been publicly disclosed until 

EPA’s response to comments on the SIP. 

Thus, EPA will be unable to provide a 

substantive statement of basis and 

purpose for the FIP in the same proposal 

to disapprove the SIP unless it intends 

to ignore comments. Yet this violates 

EPA’s statutory obligation to announce 

all the facts and grounds supporting a 

FIP before adoption. It also wholly 

undermines the underlying purposes of 

the APA’s notice and comment 

obligations. See, e.g., United States v. 

Cain, 583 F.3d 408, 420 (6th Cir. 2009) 

(these obligations are intended to 

‘‘ensure fair treatment for persons to be 

affected by regulation’’ and to ‘‘ensure 

that affected parties may participate in 

decision making at an early stage’’’) 

(citations omitted); NRDC v. Thomas, 

805 F.2d 410, 437 (D.C. Cir. 1986) (the 

purposes of these obligations include 

that ‘‘notice improves the quality of 

agency rulemaking by ensuring that 

agency regulations will be tested by 

exposure to diverse public comment,’’ 

that ‘‘notice and the opportunity to be 

heard are an essential component of 

fairness to affected parties,’’ and that 

‘‘by giving affected parties an 

opportunity to develop evidence in the 

record to support their objections to a 

rule, notice enhances the quality of 

judicial review’’) (quoting Small Refiner 

Lead Phase-Down Task Force v. EPA, 

705 F.2d 506, 547 (D.C. Cir. 1983). 

This must be true, unless EPA’s 

proposed course of action has already 

been determined, meaning that EPA has 

already decided to reject the SIP BART 

determinations and replace them with 

its own regardless of the comments 

submitted. Such prejudgment would be 

contrary to law. See, e.g., Davis v. 

Mineta, 302 F.3d 1104, 1112 (10th Cir. 

2002) (plaintiffs were likely to prevail in 

showing agency acted arbitrarily and 

capriciously, in part because the agency 

‘‘prejudged the NEPA issues’’); Metcalf 

v. Daley, 214 F.3d 1135, 1146 (9th Cir. 

2000) (agencies’ environmental 

assessment prepared under NEPA was 

‘‘demonstrably suspect’’ and ‘‘fatally 

defective’’ because the agencies ‘‘were 

predisposed’’ to a particular finding; 

agencies must conduct ‘‘an objective 

evaluation free of the previous taint’’). 

Yet that is plainly what EPA is 

suggesting by its effort to 

simultaneously disapprove one BART 

determination while proposing another. 

Either EPA must ignore the comments 

so as not to establish new grounds for 

the FIP, or it must reject the comments 

on substantive grounds that become 

justification for the FIP but have never 

been publicly disclosed. Either way, its 

action violates APA standards. 

This is a consequence of the 

procedural posture into which EPA has 

put itself by taking no action on the SIP 

until the end of the Sections 110(c) FIP 

clock. To follow the requirements of 

Sections 307(d), EPA must first propose 

to disapprove a SIP, take comment, and 

then make a decision after full and fair 

consideration of the comments. If, after 

open-minded consideration of the 

comments, EPA continues to believe the 

SIP must be disapproved, then and only 

then can EPA lawfully propose a 

different BART determination in a FIP, 

articulating for public comment why the 

proposed federal BART determination is 

legal and the State BART determination 

is not. 

Failure to follow this procedure 

necessarily results in a violation of the 

law, one way or another. Nor does the 

existence of a Consent Decree excuse 

EPA’s failure to follow the correct 

procedure. A court-fashioned decree 

may not foreclose the total range of 

procedural options available to an 

agency. See Watt v. Energy Action Educ. 

Found., 454 U.S. 151, 168–69 (1981) 

(refusing to limit the procedural options 

within the discretion of an agency); 

Marina T. Larson, Consent Decrees and 

the EPA: Are They Really Enforceable 

Against the Agency?, 1 Pace Envt’l L. 

Rev. 147, 160–63 (1983) (arguing that 

consent decrees may not limit agency 

procedural options). EPA waited until 

compelled by Court Order to propose 

disapproval of the State BART 

determination, but could have done so 

much earlier. In any event, the 

obligations EPA negotiated for itself in 

the Consent Decree cannot be used to 

deprive Wyoming or Basin Electric the 

substantive procedural rights afforded 

by the CAA. 

Response: EPA disagrees with this 

comment, which fundamentally 

misunderstands the nature of noticeand-comment rulemaking. As the Ninth 

Circuit stated in another context: 

Nothing prohibits the Agency from adding 

supporting documentation for a final rule in 

response to public comments. In fact, 

adherence to the [petitioners’] view might 

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result in the EPA’s never being able to issue 

a final rule capable of standing up to review: 

every time the Agency responded to public 

comments, such as those in this rulemaking, 

it would trigger a new comment period. 

Thus, either the comment period would 

continue in a never-ending circle, or, if the 

EPA chose not to respond to the last set of 

public comments, any final rule could be 

struck down for lack of support in the record. 

Rybachek v. U.S. EPA, 904 F.2d 1276, 

1286 (9th Cir. 1990). 

In the context of the CAA, the specific 

rulemaking provisions in section 307(d) 

are in accord with this. Under section 

307(d)(3), the notice for the proposed 

rule must be accompanied by a 

statement of basis and purpose, 

including ‘‘a summary of (A) the factual 

data on which the proposed rule is 

based; (B) the methodology used in 

obtaining the data and in analyzing the 

data; and (C) the major legal 

interpretations and policy 

considerations underlying the proposed 

rule.’’ 42 USC 7607(d)(3) (emphasis 

added). ‘‘All data, information, and 

documents referred to in [section 

307(d)(3)] on which the proposed rule 

relies shall be included in the docket on 

the date of publication of the proposed 

rule.’’ Id. (emphasis added). Then, 

under section 307(d)(6), the 

promulgated rule must ‘‘be 

accompanied by (i) a statement of basis 

and purpose like that referred to in 

[section 307(d)(3)] with respect to a 

proposed rule.’’ 42 USC 7607(d)(6)(A) 

(emphasis added). In other words, the 

statement of basis and purpose must 

provide a summary of (among other 

things) the factual data and 

methodologies on which the 

promulgated rule is based. In addition, 

section 307(d)(6) specifically requires a 

‘‘response to each of the significant 

comments, criticisms, and new data 

submitted . . . during the comment 

period.’’ 42 USC 7607(d)(6)(B) 

(emphasis added). And finally, ‘‘the 

promulgated rule may not be based . . . 

on any information or data which has 

not been placed in the docket as of the 

date of such promulgation,’’ id. 

7607(d)(C), which by implication allows 

EPA to base the promulgated rule on 

information and data that is placed in 

the docket before the date of 

promulgation. Thus, section 307(d)(6) 

specifically contemplates that the 

Agency can in its promulgated rule rely 

on additional information and data that 

EPA develops after the proposed rule 

has been published. 

In this instance, our FIP proposal was 

in accord with the requirements of 

section 307(d) of the Act. In particular, 

before the proposed rule was published, 

we included in the docket all the factual 

data, such as cost estimates and 

visibility modeling, on which the 

proposed rule was based. The comment 

identifies no deficiency in this regard. 

Instead, according to the comment the 

supposed deficiency is the failure to 

include in the docket for the proposal 

the data and information that EPA will 

develop to respond to comments. But, as 

discussed above, this is no deficiency; 

instead section 307(d) specifically 

contemplates that this will happen. 

The argument in the comment 

regarding EPA’s alleged prejudgment of 

its decision also belies a 

misunderstanding of notice-andcomment rulemaking. Under the 

comment’s theory, in order to not have 

‘‘prejudged’’ the outcome, EPA would 

have to avoid proposing any particular 

outcome in its notice of proposed 

rulemaking. However, under section 

307(d)(3), ‘‘the notice of proposed 

rulemaking shall be published in the 

Federal Register, as provided under 

section 553(b) [of the APA].’’ Under 

section 553(b) of the APA, the ‘‘notice 

shall include’’ (among other things) 

‘‘either the terms or substance of the 

proposed rule or a description of the 

subjects and issues involved.’’ 5 USC 

553(b)(3) (emphasis added). Thus it is of 

course explicitly permitted under the 

CAA and the APA for a proposal notice 

to contain EPA’s proposed disapproval 

of the State’s BART determinations and 

EPA’s proposed FIP BART 

determinations. This does not indicate 

prejudgment at all; indeed in this action 

EPA is adjusting certain determinations 

in response to certain comments, and in 

fact EPA previously reproposed its 

action on Wyoming’s SIP based upon 

new information submitted by the 

public (77 FR 3302). The cases cited by 

the comment regarding prejudgment 

concern NEPA analysis and are not on 

point. 

As the commenter noted, regional 

haze requirements apply both to our 

action on Wyoming’s SIP submittal and 

our FIP. EPA disagrees that the BART 

determinations in its FIP, which must 

meet the same regional haze 

requirements as the BART 

determinations in Wyoming’s SIP, must 

be published in a separate rulemaking 

procedure. To the extent that a comment 

on our proposed disapproval was 

identified as also relevant to our 

proposed FIP, we have responded to it. 

The commenter was not deprived of 

procedural rights merely because the 

commenter could not submit 

information twice in two separate 

rulemakings. All affected parties had 

ample opportunity to submit any 

pertinent information to EPA. 

Regarding the consent decree, we 

have elsewhere explained that it did not 

limit or modify EPA’s substantive 

discretion. With respect to the 

comment’s argument that it improperly 

limited EPA’s procedural discretion, 

any such limits are found in the 

statutory deadlines and mandatory 

duties in the Act itself. The case cited 

in the comment, Watt v. Energy Action 

Educ. Found., 454 U.S. 151 (1981), did 

not concern a consent decree and is not 

on point. In it, the Supreme Court was 

‘‘unable to find anything, either in the 

legislative history or in the 1978 

Amendments [to the Outer Continental 

Shelf Lands Act] themselves, that 

compels the conclusion that the 

Congress as a whole intended to limit 

the Secretary of the Interior’s 

discretion’’ with respect to choice of 

bidding systems for oil and gas leases. 

Id. at 168. By contrast, the CAA sets 

certain statutory deadlines for EPA’s 

action on SIP submittals and FIP 

promulgations and thereby explicitly 

limits the Administrator’s discretion for 

final action. We elsewhere respond to 

comments that EPA’s promulgation of 

its FIP was outside EPA’s authority 

under 110(c) of the Act. Finally, the 

cited law review article, Marina T. 

Larson, Consent Decrees and the EPA: 

Are They Really Enforceable Against the 

Agency?, 1 Pace Envt’l L. Rev. 147 

(1983), is also not on point. It discusses 

a settlement agreement which ‘‘set[ ] 

forth specific methods and formalized 

criteria for the [A]dministrator to use in 

assessing the need for regulation. These 

rules [would] control the nature of the 

data collected and its subsequent 

interpretation, and [would] have a 

significant influence on the substantive 

decisions reached.’’ Id. at 162. No such 

constraints have been placed on our 

methods and use of data in the 

aforementioned consent decree. We 

respond elsewhere to comments about 

procedural due process rights. 

3. Compliance With Section 169A(d) 

Comment: One commenter argued 

that section 169A(d) of the CAA 

requires that before holding a hearing on 

a proposed regional haze plan, ‘‘the 

State (or the Administrator, in the case 

of a [FIP]), shall consult in person with 

the appropriate federal land manager 

(FLM) or managers and shall include a 

summary of the conclusions and 

recommendations of the FLMs in the 

notice to the public.’’ 42 U.S.C. 7491(d). 

In its proposed action, EPA recites this 

land manager consultation requirement 

as it applies to SIPs, 78 FR 34744, but, 

EPA notably ignores that this 

requirement applies equally to FIPs. 

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54EPA–R08–OAR–2012–0026–0134, and EPA– 

R08–OAR–2012–0026–0068. 

The commenter asserted that not once 

in any of EPA’s public notices of the 

hearings EPA held on its proposed FIP 

did EPA include a summary of the 

conclusions and recommendations of 

the FLMs in the notice to the public. See 

78 FR 34738 (June 10, 2013); 78 FR 

40654 (July 8, 2013). Consequently, the 

commenter argued that EPA cannot rely 

on the State’s public notices because the 

State held its public hearings years 

before EPA proposed its FIP and 

because the SIP differs substantially 

from the FIP. 

The commenter argued that EPA’s 

failure to comply with Section 169A(d) 

can be understood only as arbitrary and 

capricious. The CAA has required 

consultation with FLMs, which oversee 

the Class I areas the regional haze 

program aims to protect, from the very 

beginning of the regional haze program, 

see 42 U.S.C. 749l(a)(2), and 

continuously through the development 

of each implementation plan, id. 

Sections 749l(d). Congress therefore 

understood the importance of working 

closely with FLMs in regional haze 

planning. 

In 1999, EPA plainly understood the 

significance of consulting the FLMs 

when it promulgated the RHR. See 64 

FR 35714, 35747 (July 1, 1999) 

(describing land manager consultation 

as ‘‘important and necessary’’). Both 

times EPA proposed action on 

Wyoming’s SIP—in 2012 and again in 

2013—EPA reiterated the need to 

consult with FLMs when developing a 

regional haze implementation plan. 77 

FR 33022, 33028 (June 4, 2012); 78 FR 

34738, 34744–45 (June 10, 2013). 

Against this backdrop, the commenter 

explained, EPA’s failure to explain why 

EPA believed it did not have to consult 

with the FLMs when promulgating its 

FIP for Wyoming, let alone comply with 

the simple consultation process set forth 

in Section 169A(d), is plainly arbitrary 

and capricious. Because FLMs play a 

critical statutory role in the regional 

haze program, there is a substantial 

likelihood that EPA’s proposed FIP 

would be significantly different if EPA 

had complied with Section 169A(d). 

Response: EPA agrees that 

consultation with the FLMs is an 

important aspect of the regional haze 

program. EPA has engaged with the 

appropriate FLMs on all of its regional 

haze actions, including its proposed 

actions on the Wyoming regional haze 

SIP. While EPA did not include a 

summary of the FLMs’ conclusions and 

recommendations on the proposed FIP 

in the public hearing notices, those 

conclusions and recommendations are 

readily available to the public in the 

online docket for this rulemaking.54

EPA also disagrees with the 

commenter that the consultation 

materials contained in the State’s public 

notices are irrelevant just because the 

State conducted its public hearings 

many years ago. The FLMs concluded at 

that time that the Wyoming regional 

haze SIP did not adequately protect the 

State’s Class I areas, and these 

conclusions and recommendations 

informed EPA when we proposed to 

disapprove portions of the Wyoming 

regional haze SIP and issue a FIP. 

Finally, there is no basis to the 

commenter’s claim that EPA’s proposed 

FIP would be significantly different if 

we had included the FLMs’ conclusions 

and recommendations in the public 

hearing notices. We carefully 

considered the comments of the FLMs 

and have responded to them elsewhere 

throughout this document. As those 

responses explain in more detail, we 

have chosen not to change our proposed 

NOX BART determinations in all of the 

ways in which the FLMs requested. We 

point out, however, that had EPA 

adopted the FLMs’ recommendations, 

we would be requiring SCR on all of the 

BART-eligible EGUs in Wyoming, a 

result that this particular commenter 

has vigorously opposed. 

Comment: The processes Congress 

required EPA to follow under the 

regional haze program were 

circumvented. For example, the CAA 

requires both states and EPA to consult 

with FLMs on regional haze 

implementation plans. Public notice of 

the FLMs’ conclusions and 

recommendations is to occur before 

holding a hearing on the plan. While 

EPA recites this requirement in its 

proposed action, it utterly failed to 

include any FLM consultation on behalf 

of its agency. EPA held three hearings 

and not once in any hearing did the EPA 

indicate it had consulted the FLMs in 

Wyoming and no conclusions or 

recommendations of any consultations 

were provided. 

Response: See above response. 

4. Public Hearings 

Comment: EPA’s regional haze plan 

promulgation regulations require EPA to 

provide public notice at least thirty days 

in advance of a hearing on a proposed 

implementation plan. 40 CFR 51.102(d) 

(a plan hearing ‘‘will be held only after 

reasonable notice, which will be 

considered to include, at least 30 days 

prior to the hearing(s)’’); see also 40 CFR 

51.100(i). Although EPA held three 

public hearings on its proposed FIP for 

Wyoming, not once did EPA provide the 

public at least thirty days advance 

notice of the hearing. EPA proposed its 

FIP on June 10, 2013 and provided only 

fourteen days notice of its hearing on 

the proposal. 78 FR 34738, 34738. After 

Governor Mead, Wyoming’s 

Congressional Delegation, and the 

Wyoming Department of Environmental 

Quality (DEQ) pointed out to EPA that 

fourteen days provided far too 

inadequate notice for the public to 

understand the proposed FIP and 

therefore meaningfully participate in the 

public hearing, EPA agreed to hold two 

additional hearings. On July 8, 2013, 

EPA publicly noticed its plans to hold 

the additional hearings on July 17, 2013 

and July 26, 2013. 78 FR 40654, 40654. 

Thus, although EPA had the 

opportunity to correct its errors, it failed 

to do so by again providing less than 

thirty days notice of its hearings. 

Here again, EPA’s noncompliance 

with its own regulatory processes is 

arbitrary and capricious. EPA cannot 

ignore the law for its own benefit 

without at least providing a reasoned 

justification for doing so. In this case 

EPA has provided no such explanation, 

thereby rendering its failure an arbitrary 

abuse of power. And by shortcutting 

public participation, EPA undermined 

the central democratic purposes of 

notice-and-comment rule-making. Had 

EPA honored the law and held itself to 

the same standards it holds states, the 

public could have more meaningfully 

commented on EPA’s proposal. As a 

result of that public input, EPA’s 

proposed FIP might be considerably 

different, assuming, as we must, that 

EPA would have considered those 

comments with an open mind. 

DEQ understands that EPA rushed its 

FIP promulgation process in order to 

meet the deadlines it consensually 

established with a third party in 

litigation to which Wyoming was not a 

party. But, EPA’s outside arrangements 

do not excuse it from complying with 

the law, or allow it to shortcut public 

participation in the promulgation of a 

rule, especially one that will harm 

Wyoming. DEQ discourages EPA from 

imposing its illegally promulgated FIP 

on Wyoming. But, in the event EPA 

decides nevertheless to do so, DEQ 

encourages EPA to re-propose its FIP in 

a manner that complies with the 

statutory and regulatory plan 

development processes. To do otherwise 

is to arbitrarily hold states to a different 

plan promulgation standard than EPA 

itself adheres to, even though the CAA 

makes no such distinction. Such 

irrationally unequal treatment is the 

essence of arbitrary regulation. 

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55See CAA section 307(d). 

56 78 FR 34738, and 78 FR 40654. 

57 77 FR 72512, 72531 (Dec. 5, 2012)(BART for 

Apache, Cholla and Coronado). 

58CCM (Tables 1.4 and 2.5 show AFUDC value 

as zero). 

59See, e.g., 77 FR 20894, 20916–17 (Apr. 6, 2012) 

(explaining in support of the North Dakota Regional 

Haze FIP, ‘‘we maintain that following the 

overnight method ensures equitable BART 

determinations . . .’’); 76 FR 52388, 52399–400 

(August 22, 2011) (explaining in the New Mexico 

Regional Haze FIP that the Manual does not allow 

AFUDC). 

Response: EPA disagrees with this 

comment. First, 40 CFR 51.102(d) 

implements the requirement in section 

110(a)(2) that state plans ‘‘be adopted by 

the State after reasonable notice and 

hearing.’’ See 72 FR 38787 (July 16, 

2007). When EPA—which is not a 

state—promulgates a FIP, EPA instead is 

bound by the requirements in section 

307(d) of the Act. EPA has not 

promulgated specific regulations 

governing EPA’s processes under 

section 307(d); however, EPA complied 

with the public hearing requirements in 

307(d) as explained below. The 

definition of ‘‘State agency’’ in 51.100(i) 

does not contradict this; indeed the 

commenter elsewhere protests 

vigorously elsewhere that states, not 

EPA, are ‘‘primarily responsible for 

development and implementation of a 

plan under the Act.’’ 40 CFR 51.100(i). 

Thus, EPA does not fall under the 

definition of ‘‘State agency.’’ We also 

note that EPA initially provided a 60- 

day comment period for this action and 

then extended it 15 more days; under 40 

CFR 51.102. States need only provide a 

30-day period for written comments. 

See 72 FR at 38788 (‘‘Whether or not a 

public hearing is held, the State is 

required to provide a 30-day period for 

the written submission of comments 

from the public.’’). 

In promulgating a FIP under CAA 

section 110(c), EPA is required to: ‘‘give 

interested persons an opportunity for 

the oral presentation of data, views, or 

arguments, in addition to an 

opportunity to make written 

submissions; keep a transcript of any 

oral presentation; and keep the record of 

such proceeding open for thirty days 

after completion of the proceeding to 

provide an opportunity for submission 

of rebuttal and supplementary 

information.’’ 55 In this rulemaking, EPA 

held three public hearings on its 

proposed FIP. In addition to the public 

hearing initially scheduled on June 24, 

2013 in Cheyenne, Wyoming, additional 

public hearings were held on July 17, 

2013 in Cheyenne, Wyoming and on 

July 26, 2013 in Casper, Wyoming. The 

transcripts for those hearings consisted 

of 321 pages. These hearings were 

announced in the Federal Register on 

June 10, 2013 and July 8, 2013,56 and a 

pre-publication version of the proposal 

was posted on EPA’s Web site prior to 

publication in the Federal Register. The 

proposal was published in the Federal 

Register on June 10, 2013 and was 

initially scheduled to close on August 9, 

2013. The public comment period was 

extended in response to letters received 

from the Governor and Congressional 

delegation, which are in the docket for 

this action, and public comments were 

accepted through August 26, 2013, 30 

days after the last hearing, as required. 

EPA received over 1900 comments on 

the reproposal, including over 130 

unique comments submitted from 

organizations, companies, and 

individuals. The major comments 

consisted of over 1130 pages, including 

attachments. The commenters have not 

explained how their ability to comment 

was impaired in any way by the 

opportunities for public comment that 

EPA provided, including three public 

hearings and the 75-day comment 

period. 

Comment: EPA failed to follow its 

own rules for providing public notice of 

hearings on regional haze 

implementation plans. Those rules 

require a minimum of 30 days advance 

public notice of hearings on 

implementation plans. The first notice 

in the Federal Register of a public 

hearing was issued on June 10, 2013, for 

a public hearing to be held on June 24, 

2013. EPA issued a second notice for 

additional public hearings on July 8, 

2013 in the Federal Register. The notice 

identified July 17, 2013 and July 26, 

2013 as dates set. This provided the 

public nine and eighteen days notice of 

the respective hearings. 

Response: We disagree with this 

comment, see above response. 

5. RHR and BART Guidelines 

Comment: Regardless of the effect of 

AFUDC on cost effectiveness as 

demonstrated by the Sargent & Lundy 

sensitivity analyses, EPA has no 

authority, as part of its interpretation of 

a non-binding guidance document, to 

impose restrictions on the categories of 

costs that states can include when 

assessing the ‘‘costs of compliance’’ in 

a BART determination. EPA has failed 

to make a showing that Wyoming’s 

compliance with Sections 169A(g)(2) or 

otherwise violates governing law. 

Including AFUDC is not a lawful ground 

for disapproving Laramie River Station 

BART, and it is improper to exclude 

AFUDC in EPA’s FIP analysis for 

Laramie River. 

Response: EPA disagrees with this 

comment. EPA’s revised costeffectiveness values are consistent with 

EPA’s regulations and the parameters 

set forth in the Control Cost Manual. 

EPA explained in promulgating the 

BART Guidelines that ‘‘[s]tates have 

flexibility in how they calculate costs. 

‘‘See 70 FR at 39127 (July 6, 2005). A 

state may deviate from the Control Cost 

Manual provided its analysis is 

reasonable. EPA independently 

evaluated Sargent & Lundy costeffectiveness calculation, explaining 

elsewhere in this document that the 

CCM explicitly excludes AFUDC from 

control costs, and EPA’s estimates were 

correct in excluding AFUDC. See 

Oklahoma v. U.S. EPA, 723 F.3d 1201, 

1212 (10th Cir. 2013) (‘‘The EPA 

therefore had a reasonable basis for 

rejecting the 2008 Cost Estimates [that 

were based on the overnight costing 

method] as not complying with the 

guidelines.’’) 

Furthermore, as Region 9 explained in 

responding to similar comments: 57

EPA disagrees ‘‘with commenters’ 

assertions that AFUDC is a cost that should 

be incorporated into our cost analysis, as it 

is inconsistent with CCM methodology. The 

utility industry uses a method known as 

‘‘levelized costing’’ to conduct its internal 

comparisons, which is different from the 

methods specified by the CCM. Utilities use 

‘‘levelized costing’’ to allow them to recover 

project costs over a period of several years 

and, as a result, realize a reasonable return 

on their investment. The CCM uses an 

approach sometimes referred to as overnight 

costing, which treats the costs of a project as 

if the project were completed ‘‘overnight’’, 

with no construction period and no interest 

accrual. Since assets under construction do 

not provide service to current customers, 

utilities cannot charge the interest and 

allowed return on equity associated with 

these assets to customers while under 

construction. Under the ‘‘levelized costing’’ 

methodology, AFUDC capitalizes the interest 

and return on equity that would accrue over 

the construction period and adds them to the 

rate base when construction is completed 

and the assets are used. Although it is 

included in capital costs, AFUDC primarily 

represents a tool for utilities to capture their 

cost of borrowing and return on equity 

during construction periods. AFUDC is not 

allowed as a capitalized cost associated with 

a pollution control device under CCM’s 

overnight costing methodology, and is 

specifically disallowed for SCRs (i.e., set to 

zero) in the CCM.58 Therefore, in reviewing 

other BART determinations, EPA has 

consistently excluded AFUDC.59

Comment: EPA claims that Wyoming 

should have used actual emissions 

during the baseline period instead of 

calculating baseline emissions from the 

actual average heat input and actual 

average emission rate. EPA apparently 

claims that this deviated from the BART 

Guidelines. 78 FR 34773–34774. 

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60 40 CFR 51.302(e)(1)(ii)(B) (emphasis added). 

However, the Guidelines do not 

mandate EPA’s approach. They say, 

rather, that the baseline emissions rate 

‘‘should represent a realistic depiction 

of anticipated annual emissions for the 

source’’ and ‘‘in general’’ states should 

estimate anticipated emissions based on 

actual baseline emissions. 70 FR 39167. 

Nothing in the text of the Guidelines 

requires states to use any particular 

approach to estimate future emissions. 

The Guidelines were constructed to 

assist the states in making cost 

assessments, not to mandate the same 

assessment and the same results in 

every case by use of mandatory 

checklists. The word ‘‘should’’ in the 

Guidelines makes clear there is no 

mandatory action required. See Aragon 

v. United States, 146 F.3d 819, 826 

(10th Cir. 1998) (describing Air Force 

Manual 85–14’s use of the word 

‘‘should’’ as ‘‘suggestive, rather than 

mandatory language’’ in a Federal Tort 

Claims Act case); In re Glacier Bay, 71 

F.3d 1447, 1452–53 (9th Cir. 1995) 

(interpreting the National Oceanic and 

Atmospheric Administration’s use of 

the word ‘‘should’’ in manuals and 

instructions as ‘‘suggestive’’ language 

conferring hydrographers with 

discretion); Culbert v. Young, 834 F.2d 

624, 628 (7th Cir. 1987) (holding that 

use of the word ‘‘should’’ in a 

Wisconsin Administrative Code 

provision governing inmate discipline 

‘‘only advises the security director on 

what criteria to consider but does not 

require him to consider them,’’ and 

explaining that ‘‘[t]he word ‘should,’ 

unlike the words ‘shall,’ ‘will,’ or ‘must,’ 

is permissive rather than mandatory’’). 

See also Dickson v. Sec’y of Defense, 68 

F.3d 1396, 1401 (D.C. Cir. 1995) (‘‘When 

a statute uses a permissive term such as 

‘may’ rather than a mandatory term such 

as ‘shall,’ this choice of language 

suggests that Congress intends to confer 

some discretion on the agency, and that 

courts should accordingly show 

deference to the agency’s 

determination.’’) (emphasis omitted). 

EPA is therefore merely disagreeing 

with a judgment call made by the State, 

not pointing to violation of a mandatory 

methodology. And, even though not 

required to do so, Wyoming did follow 

the recommendation in the Guidelines. 

Although EPA contends that the State 

used a baseline based on annual average 

heat input for 2001–2003 and an 

emission rate of 0.27 rather than the 

‘‘actual annual average’’ emissions, 78 

FR 34773–34774, the State’s May 28, 

2009 BART Analysis actually says 

‘‘[b]aseline emissions [are] based on 

continuous emissions monitoring (CEM) 

annual averages for 2001–2003.’’ 

But even if EPA were correct, EPA 

would still be wrong in asserting that 

the State failed to follow the BART 

Guidelines. The approach that EPA 

objects to would be an appropriate 

method to realistically depict 

anticipated annual emissions. Certainly 

it would be reasonable to multiply the 

actual annual amount of heat in Laramie 

River coal during the baseline period by 

the same baseline emission rate of 0.27 

lb/MMBtu that was used by EPA’s own 

consultant. 78 FR at 34773; Review of 

Estimated Compliance Costs for 

Wyoming Electric Generating (EGUs)— 

Revision of Previous Memo, memo from 

Jim Staudt, Andover Technology 

Partners, to Doug Grano, EC/R, Inc., Feb. 

7, 2013 (‘‘Andover Report’’) at 15 Table 

4, EPA docket cite EPA–R08–OAR– 

2012–0026–0086. Any estimate of 

anticipated emissions is necessarily a 

projection, and by definition cannot 

require exclusive reliance on past actual 

emissions. 

That the State’s approach to baseline 

emissions was a realistic projection is 

borne out by the fact that the annual 

baseline emissions the State used to 

calculate cost effectiveness for Laramie 

River differs from EPA’s baseline by 

only the following de minimis amounts: 

269 tons higher than EPA’s 6051 tons 

for Unit 1, a difference of only 4%; 8 

tons lower than EPA’s 6285 tons for 

Unit 2, a difference of only 0.1%; and 

73 tons higher than EPA’s 6375 tons for 

Unit 3, a difference of only 1%. No fair 

assessment could conclude that such de 

minimis differences violate the 

Guidelines or yield an ‘‘implausible’’ 

result so extreme as to be arbitrary and 

capricious. 78 FR 34773–34776. 

If EPA’s values are realistic, the 

State’s values are realistic. There is no 

material difference between them. The 

objective of a BART determination is to 

arrive at a technology selection that 

weighs and takes into account the five 

BART factors. The negligible difference 

between EPA’s baseline emissions and 

the State’s is not material and therefore 

is not a valid ground for disapproving 

the State’s NOX BART for Laramie 

River, and EPA has made no effort to 

show otherwise. EPA’s role is not to fly 

speck each and every aspect of the 

BART process in a search for reasons to 

disapprove the State’s determination. 

In fact, EPA proposes to approve other 

BART determinations made by 

Wyoming despite the same alleged 

‘‘errors,’’ unequivocally demonstrating 

that its disagreement with Wyoming’s 

approach to baseline calculations does 

not amount to proof of a legal violation 

by the State. EPA claims that for several 

Wyoming sources subject to BART, 

Wyoming committed the same ‘‘cost and 

visibility errors’’ that EPA claims for 

Laramie River, but proposes nonetheless 

to approve the BART determinations for 

these sources ‘‘because we have 

determined that the State’s conclusions 

were reasonable despite the cost and 

visibility errors.’’ 78 FR 34750. EPA 

contradicts itself when it overlooks 

errors for other sources and yet claims 

those same ‘‘errors’’ as per se reasons to 

disapprove BART for Laramie River 

Station. Such inconsistent treatment is 

erroneous. See W. States Petroleum v. 

EPA, 87 F.3d 280, 282 (9th Cir. 1996). 

EPA’s own behavior therefore 

demonstrates that the baseline used for 

Laramie River is not a material 

departure from any requirement and is 

not a basis for disapproval of the State’s 

BART determination. EPA is stretching 

to find any excuse to impose its own 

technology preferences, contrary to law. 

Wyoming’s choice of baseline 

emissions is neither inconsistent with 

the BART Guidelines nor materially 

different from EPA’s allegedly correct 

baseline emissions, and therefore is not 

a valid ground for disapproving 

Wyoming’s NOX BART for Laramie 

River. 

Response: We disagree with some 

aspects of this comment, but agree with 

others. First, we disagree with the 

commenter’s characterization of the 

BART Guidelines as other than 

mandatory in the case of Laramie River 

Station, including in regard to how 

baseline emissions are calculated. The 

generating capacity of Laramie River 

Station of 1,705 MW surpasses the 

threshold of 750 MW used to determine 

whether the BART Guidelines must be 

applied. As stated in the RHR: ‘‘The 

determination of BART for fossil-fuel 

fired power plants having a total 

generating capacity greater than 750 

megawatts must be made pursuant to 

the guidelines in appendix Y of this part 

(Guidelines for BART Determinations 

Under the Regional Haze Rule).’’ 60

Moreover, the commenter’s attempts to 

turn ‘‘should’’ into ‘‘may’’ are of no 

avail. Because the BART Guidelines are 

mandatory for EGUs larger than 750 

MW, EPA’s use of the word ‘‘should’’ 

indicates a mandate, not a suggestion. 

Elsewhere in the Guidelines, EPA uses 

‘‘may’’ when EPA means ‘‘may.’’ See, 

e.g. 40 CFR Part 51, App’x Y, II.A.4 (‘‘In 

order to simplify BART determinations, 

States may choose to identify de 

minimis levels of pollutants at BARTeligible sources (but are not required to 

do so).’’) (emphasis added). 

Furthermore, the Tenth Circuit Court of 

Appeals has interpreted ‘‘should’’ in the 

Guidelines to mean ‘‘required.’’ See 

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61EPA is responsible for reviewing Statesubmitted SIPs and SIP revisions to ensure that they 

‘‘meet[ ] all of the applicable requirements of [the 

Act].’’ CAA Section 110(k)(3); see also CAA Section 

110(l) (EPA shall not approve SIP revision if it 

would interfere with ‘‘any . . . applicable 

requirement of this chapter’’); Oklahoma, 723 F.3d 

at 1204 (EPA reviews all SIPs to ensure plans 

comply with the Act). There is nothing unusual 

about regional haze SIPs in this regard—they, like 

any other SIPs, must be reviewed by EPA, and may 

be approved only if they meet all applicable 

requirements of the Act, including provisions 

related to visibility. See Oklahoma, 723 F.3d at 

1207; North Dakota, 730 F.3d at 756–57. 

Oklahoma v. U.S. EPA, 723 F.3d 1201, 

1213 (10th Cir. 2013) (‘‘The guidelines 

require that states provide support for 

any site-specific costs that depart from 

the generic numbers in the Control Cost 

Manual. See 40 CFR part 51 app. 

Y(IV)(D)(4)(a) n.15 (‘‘You should 

include documentation for any 

additional information you used for the 

cost calculations, including any 

information supplied by vendors that 

affects your assumptions regarding 

purchased equipment costs, equipment 

life, replacement of major components, 

and any other element of the calculation 

that differs from the Control Cost 

Manual.’’)’’) (emphasis added). 

Notwithstanding that the BART 

Guidelines are mandatory for Laramie 

River Station, we agree that Wyoming’s 

approach, having used both the actual 

NOX emission rate and the actual heat 

input from the baseline period, resulted 

in a realistic depiction of anticipated 

annual emissions consistent with the 

BART Guidelines, that these emissions 

differed only slightly from baseline 

emissions estimated by EPA and that, 

therefore, Wyoming’s treatment of 

baseline emissions by itself was not a 

basis for EPA to disapprove NOX BART 

for Laramie River Station. Nonetheless, 

as discussed in response to other 

comments, we maintain that there were 

other deficiencies in Wyoming’s BART 

analysis for Laramie River Station that 

remain a valid basis for our disapproval. 

Most notably, Wyoming did not 

consider the visibility impacts of SNCR 

as required by the CAA and BART 

Guidelines. 

Comment: Against its longstanding 

30-year history of interpreting and 

applying the RHR and Guidelines, EPA 

has now embarked on a spate of BART 

disapprovals demonstrating that the 

agency is now interpreting and applying 

the Guidelines and CCM very differently 

than it did in the past, and signaling that 

EPA has actually decided to reinterpret 

the statute and Guidelines without 

notice and comment to the states. 

EPA is manufacturing requirements in 

the Guidelines that do not exist, for the 

purpose of abandoning the 

administrative structure conferring state 

primacy that Congress created with both 

the CAA generally and the Regional 

Haze Statute in particular. EPA is doing 

so by interpreting the BART Guidelines 

and CCM as setting forth detailed, 

mandatory regulatory requirements that 

are not actually in the text, and by 

seeking to make any deviation from the 

recommendations in the Guidelines or 

CCM grounds for voiding states’ BART 

choices. 

EPA is attempting to convert 

recommendations into mandates. This 

new interpretation of the Guidelines 

and Cost Manual is erroneous, contrary 

to their statutory role, unannounced, 

and calculated to federalize BART 

decisions by making them all follow 

identical paths whether or not local 

considerations and costs warrant 

separate treatment in control decisions. 

Response: Our proposal clearly laid 

out the bases for our proposed approval 

and disapproval of the State’s BART and 

reasonable progress determinations, as 

well as other SIP elements. We have 

relied on the standards contained in our 

regional haze regulations and the 

authority that Congress granted us to 

review and determine whether SIPs 

comply with the minimum statutory 

and regulatory requirements.61 To the 

extent we have found that the State’s 

cost analysis relies on values that do not 

conform to applicable requirements of 

the Act and regulations, we have 

disapproved those elements of the 

analysis. To the extent the state has 

considered visibility improvement from 

potential emissions controls in a way 

that is inconsistent with the CAA and 

regulations, we have disapproved those 

elements of the analysis. 

Where, as explained in our proposed 

notice and final notice, a state 

determines that a less stringent control 

technology is the ‘‘best available,’’ as 

was the case here with regard to NOX

emissions, the state must justify its 

decision by explaining how the BART 

factors led it to choose that level of 

control over more stringent options. See 

70 FR 39170–71. While a state has 

significant discretion regarding how to 

conduct its BART analysis, EPA must 

ultimately ensure that the state has 

demonstrated it has a reasoned basis, 

consistent with the Act’s requirements, 

for determining that a given emissions 

control technology is ‘‘the best 

available’’ for each source. See 

Oklahoma, 723 F.3d at 1208 (‘‘[W[hile 

it is undoubtedly true that the statute 

gives states discretion in balancing the 

five BART factors, it also mandates that 

the state adhere to certain requirements 

when conducting a BART analysis.’’). 

In determining SIP adequacy, we 

inevitably exercise our judgment and 

expertise regarding technical issues, and 

it is entirely appropriate that we do so. 

Courts have recognized this necessity 

and deferred to our exercise of 

discretion when reviewing SIPs. See, 

e.g., Connecticut Fund for the Env’t., 

Inc. v. EPA, 696 F.2d 169 (2nd Cir. 

1982); Michigan Dep’t. of Envtl. Quality 

v. Browner, 230 F.3d 181 (6th Cir. 2000); 

Mont. Sulphur & Chem. Co. v. EPA, 666 

F.3d 1174, 1190 (9th Cir. 2012) cert. 

denied, 133 S. Ct. 409, (2012). Contrary 

to the commenter’s assertion, we have 

not abandoned the State’s primacy. In 

fact, we have approved the vast majority 

of the State’s determinations. We are 

only disapproving the State’s analyses 

and decisions that do not conform to the 

CAA and regulations. We are authorized 

to do so. 

Comment: As early as 1979, EPA 

recognized that the regional haze 

program is organized around ‘‘goals’’ 

and ‘‘reasonable progress,’’ and not hard 

objective requirements: Section 169A of 

the CAA provides for consideration of 

the degree or significance of visibility 

improvement, costs, energy, and other 

factors in applying retrofit controls to 

major sources and in making 

‘‘reasonable’’ progress toward the 

national goal. These provisions indicate 

that some flexibility can be allowed in 

implementing control programs for 

remedying existing impairment and that 

priorities can be established. 

Thus, while the BART analysis may 

include consideration of factors similar 

to those applied in a BACT analysis, 

BART does not require any threshold 

level of control. As EPA acknowledged 

in its 2004 re-proposal of the BART 

Guidelines, ‘‘for the BART analysis, 

there is no minimum level of control 

required.’’ 69 FR. 25184, 25219 (May 5, 

2004). The RHR’s ‘‘national goal’’ is not 

a mandate but, rather, a foundation for 

analytical tools to be used by the states 

in setting RPGs. The BART Guidelines 

were therefore developed to assist states 

in making their own BART 

determinations by providing analytical 

tools. They were not designed or 

intended by Congress to impose 

inflexible mandates that become 

tripwires for EPA to use as a means of 

federalizing BART decisions with set 

criteria. EPA’s current effort to convert 

the Guidelines into something they were 

not intended to be is improper and 

calculated to shift to EPA authority over 

BART determinations that Congress 

reserved to the states. ‘‘[A]n agency 

cannot create regulations which are 

beyond the scope of its delegated 

authority.’’ Nagahi v. INS, 219 F.3d 

1166, 1169 (10th Cir. 2000). Nor can an 

agency reinterpret regulations for that 

purpose. 

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Congress authorized EPA to provide 

guidelines only as to limited aspects of 

a state’s BART decision-making process, 

and left the majority of that process to 

the states’ discretion. Specifically, in the 

subsection immediately preceding the 

reference to the Guidelines, Congress 

directed EPA to conduct a study on 

available methods for implementing the 

national goal and provide 

recommendations to Congress for (1) 

‘‘methods for identifying, 

characterizing, determining, 

quantifying, and measuring visibility 

impairment in Federal areas’’; (2) 

‘‘modeling techniques (or other 

methods) for determining the extent to 

which manmade air pollution may 

reasonably be anticipated to cause or 

contribute to such impairment’’; and (3) 

‘‘methods for preventing and remedying 

such manmade air pollution and 

resulting visibility impairment.’’ CAA 

Sections 169A(a)(3)(A)–(C), 42 U.S.C. 

7491(a)(3)(A)–(C). 

In the next subsection, Congress 

directed EPA to promulgate 

regulations—but with any regulation of 

the states’ BART determinations 

confined to those limited areas on 

which EPA had been directed to 

conduct studies and make a report to 

Congress. Specifically, CAA Section 

169(b) provides, in pertinent part, that 

the regulations ‘‘shall—(1) provide 

guidelines to the States, taking into 

account the recommendations under 

subsection (a)(3) of this section on 

appropriate techniques and methods for 

implementing this section (as provided 

in subparagraphs (A) through (C) of 

such subsection (a)(3)), and (2) require 

each applicable implementation plan for 

a State . . . to contain such emission 

limits, schedules of compliance and 

other measures as may be necessary to 

make reasonable progress toward 

meeting the national goal.’’ Id. Sections 

7491(b)(1)–(2). 

Accordingly, Congress only 

authorized EPA to promulgate 

regulations or guidelines on the 

identification and measurement of 

visibility impairment, the methods for 

measuring and predicting future 

visibility impairment, the methods for 

preventing and remedying air pollution 

and resulting visibility impairment, and 

the CAA’s general requirement that 

states develop SIPs to include the BART 

and reasonable progress determinations 

required by the RHR. Congress did not 

authorize EPA to promulgate regulations 

or guidelines mandating exactly how 

the states should conduct their BART 

analyses, and made clear that the 

purpose of the guidelines was to 

provide ‘‘recommendations’’ to the 

states. 

Consistent with the statute and 

regulations, the BART Guidelines 

contemplate a two-step process: (1) the 

‘‘Attribution Step,’’ which consists of 

analyzing which sources are 

appropriately subject to BART controls; 

and (2) the ‘‘Determination Step,’’ 

which consists of determining, based on 

the five statutory BART factors, an 

appropriate level of control. 70 FR 

39108, 39126; see also Utility Air 

Regulatory Group, 471 F.3d at 1335–36 

(discussing two-step process). The 

Guidelines for the Determination Step 

are designed as a ‘‘step-by-step guide’’ 

for states to identify the ‘‘best system of 

continuous emissions control 

technology,’’ taking into account the 

five BART factors. 70 FR 39127. See also 

id. at 39158 (the Guidelines describe a 

‘‘process for making BART 

determinations’’). They are merely 

‘‘helpful guidance’’ for sources other 

than power plants with a capacity 

greater than 750 MW. Id. at 39108; 

Utility Air Regulatory Group, 471 F.3d 

at 1339. Yet, even for larger power 

plants, the Guidelines are procedural in 

nature, setting forth criteria for 

evaluating control alternatives, but not 

mandating a substantive result. As EPA 

acknowledges, to mandate a choice of 

technology would infringe on ‘‘those 

areas where the Act and legislative 

history indicate that Congress evinced a 

special concern with insuring that 

States would be the decision makers.’’ 

70 FR 39137. See also id. at 39107 (‘‘The 

State must determine the appropriate 

level of BART control’’). 

The flexibility afforded by the 

Guidelines is critical to ensuring that 

states maintain primacy in making 

BART determinations. When EPA reproposed the Guidelines in 2004, for 

example, EPA requested comment on a 

sequential process—similar to a BACT 

analysis—for considering the five 

statutory BART factors. 69 FR 25197– 

25198. In the final rule, however, EPA 

concluded that ‘‘States should retain the 

discretion to evaluate control options in 

whatever order they choose, so long as 

the State explains its analysis of the 

CAA factors.’’ 70 FR 39130. EPA also 

expressed that the Guidelines confer 

authority on the state to make ‘‘a BART 

determination based on the estimates 

available for each criterion, and as the 

CAA does not specify how the state 

should take these factors into account, 

the states are free to determine the 

weight and significance to be assigned 

to each factor.’’ Id. at 39123. 

EPA further emphasized the 

flexibility inherent in each step of the 

BART determination: ‘‘States have 

flexibility in how they calculate costs,’’ 

id. at 39127, and ‘‘have the flexibility to 

develop their own methods to evaluate 

model results,’’ id. at 39108. EPA points 

out that ‘‘States should have flexibility 

when evaluating the fifth [visibility] 

statutory factor.’’ Id. at 39129. See also 

id. (‘‘Because each Class I area is 

unique, we believe States should have 

flexibility to assess visibility 

improvements due to BART controls by 

one or more methods, or by a 

combination of methods . . .’’). Even 

the presumptive emission limits for 

power plants greater than 750 MW ‘‘are 

presumptions only; in making a BART 

determination, states have the ability to 

consider the specific characteristics of 

the source at issue and to find that the 

presumptive limits would not be 

appropriate for that source.’’ Id. at 

39134. 

Response: EPA agrees that states play 

an important role in the regional haze 

program. However, EPA disagrees that 

this action conflicts with the State’s 

statutory role or that this rule is beyond 

EPA’s authority. First, the regional haze 

program explains that EPA ‘‘shall . . . 

require each applicable implementation 

plan for a State . . . to contain such 

emission limits, schedules of 

compliance, and other measures as may 

be necessary to make reasonable 

progress toward meeting the national 

goal.’’ 42 U.S.C. 7491(b)(2). The CAA 

makes clear that EPA is statutorily 

obligated to reject a SIP that would 

‘‘interfere with any applicable 

requirement concerning attainment and 

reasonable further progress . . . or any 

other applicable requirement of this 

chapter.’’ 42 U.S.C. 7410(l). Thus the 

CAA provides EPA with the authority to 

review and reject an inadequate regional 

haze SIP. Oklahoma v. EPA, 723 F.3d 

1201, 1207 (10th Cir. 2013); North 

Dakota v. EPA, 730 F.3d 750 (8th Cir. 

2013). 

Second, EPA is required to establish 

guidelines to ensure that states achieve 

the visibility goals set forth in the Act. 

42 U.S.C. 7491(b)(1). EPA agrees that 

states have some flexibility in BART 

determinations, but that flexibility is 

limited and states must provide EPA 

with reasoned analysis for their SIP 

decisions. Oklahoma v. EPA, 723 F.3d 

1201, 1207 (10th Cir. 2013) (noting that 

while ‘‘it is undoubtedly true that the 

statute gives states discretion in 

balancing the five BART factors, it also 

mandates that the state adhere to certain 

requirements when conducting a BART 

analysis’’); North Dakota v. EPA, 730 

F.3d 750 (8th Cir. 2013) (explaining EPA 

is not required to ‘‘approve a BART 

determination that is based upon an 

analysis that is neither reasoned nor 

moored to the CAA’s provisions’’). The 

regional haze guidelines provide states 

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5086 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

62The commenter cannot challenge EPA’s duly 

promulgated regulations and Guideline. Indeed, the 

time for such a challenge has long passed, since the 

Guidelines were promulgated July 6, 2005, and 

could only have been challenged within 60 days. 

70 FR 39,104; 42 U.S.C. 7607(b), (d)(1)(J). 

with methods to determine BART that 

EPA considers reasonable, although 

states may consider methods not 

provided for in the guidelines in certain 

circumstances. For example, in 

explaining a state’s flexibility to 

determine costs, the guidelines note that 

‘‘if there are elements or sources that are 

not addressed by the Control Cost 

Manual or there are additional cost 

methods that could be used, we believe 

that these could serve as useful 

supplemental information.’’ 70 FR No. 

128 39127. (July 6, 2005). A state, 

however, must demonstrate that any 

methods it has used to determine BART 

that are not found within the guidelines 

are reasonable. 

EPA may, and has, approved state 

BART determinations that do not rigidly 

follow the BART guidelines, so long as 

the state’s determinations are 

reasonable. Here, however, Wyoming’s 

methods were inconsistent with the 

BART guidelines, unreasonable, and 

inconsistent with the CAA’s statutory 

and regulatory requirements, as 

explained elsewhere in these comments. 

Nothing in this rule displaces a state’s 

discretion to balance the five factors, if 

the state calculates the factors using 

reasonable methods that are consistent 

with the regulatory and statutory 

requirements of the CAA. 

Comment: EPA is now construing the 

BART Guidelines to treat 

‘‘recommendations’’ as ‘‘mandates’’ 

such that states no longer have the 

authority to vary from the 

recommendations, however 

insignificantly, without finding EPA 

disapproving their BART 

determinations. Such an interpretation 

violates both the plain language of the 

CAA and its underlying cooperative 

federalism structure. First, Section 

169A(b)(2)(A) provides that BART shall 

‘‘be determined by the State.’’ 42 U.S.C. 

7491(b)(2)(A). Section 169A(g)(2) 

provides that states are to determine the 

‘‘costs of compliance’’ and the ‘‘degree 

of improvement in visibility.’’ Id. 

Section 7491(g)(2). Any interpretation 

and application of the BART Guidelines 

and CCM that has the effect, whether 

directly or indirectly, of mandating 

particular outcomes or approaches to 

reaching a BART determination invades 

state authority. States do the cost of 

compliance and visibility assessments, 

not EPA. Treating recommendations as 

mandates has the effect of forcing all 

states to follow each recommendation 

precisely the same way, effectively 

federalizing the BART determination by 

affording EPA the authority to employ 

the SIP approval process as a means of 

forcing all states to take the same 

approach required by EPA in all cases 

or find their independent decisions 

overruled. This violates the structure 

and design by Congress, and conflicts 

with the congressional commitment of 

the BART decision to the States. 

American Corn Growers, 291 F.3d at 7– 

10. This problem did not exist when 

EPA historically construed the 

‘‘recommendations’’ in the Guidelines 

to be ‘‘recommendations’’ rather than 

mandates, but EPA’s current approach 

of identifying deviations from the CCM 

or from the ‘‘recommendations’’ of the 

Guidelines as ‘‘errors of law’’ destroys 

state primacy and thus conflicts with 

the plain language of the statute and is 

unreasonable and not entitled to 

deference. 

EPA’s interpretation of the BART 

Guidelines violates Section 169A of the 

CAA because it also restricts state 

discretion in the decision-making 

process. It is the states, not EPA, that are 

authorized to determine BART. 42 

U.S.C. 7491(b). In doing so they are 

directed to take into consideration the 

five BART factors—costs of compliance, 

energy and non-air quality 

environmental impacts of compliance, 

any existing pollution control 

technology in use at the source, the 

remaining useful life of the source, and 

the improvement in visibility that 

would be achieved by the use of control 

technology. Id. Section 7491(g)(2). The 

states must determine how to balance 

these factors, and how much weight to 

give each of the factors, on a case-bycase basis. 

However, EPA interprets the BART 

Guidelines as authorizing it to 

disapprove the State’s BART 

determination based on alleged 

technical failures to follow each and 

every paragraph and recommendation in 

the Guidelines. By relying on isolated 

instances of alleged deviation from the 

Guidelines, such an interpretation 

totally undermines the State’s 

prerogative to determine how to weigh 

and balance all factors and therefore 

conflicts directly with the statutory 

grant of authority to the states to make 

BART determinations in accordance 

with all five BART factors. Section 169A 

does not tell the states how to take the 

factors into account, nor does it describe 

how each of the factors must be treated. 

The provision directing EPA to provide 

guidelines to the states, id. Section 

7491(b)(1), must be read in concert with 

the broad grant of authority and 

discretion to states, and does not change 

the fundamental thrust of the statute. 

EPA’s interpretation that states are 

constrained to dot every ‘‘i’’ and cross 

every ‘‘t’’ the way EPA insists directly 

conflicts with the statute’s grant of 

BART decision making authority to the 

states. If the BART Guidelines mean 

what EPA claims they mean, the 

Guidelines violate the CAA. 

Response: As explained elsewhere in 

this document, we disagree with the 

commenter’s assertions. The CAA does 

not give states unlimited discretion to 

determine BART; EPA retains the same 

supervisory role it has with respect to 

any SIP submission. We also disagree 

that our proposal is inconsistent with 

the American Corn Growers decision. 

We have determined that Wyoming 

utilized flawed cost assessments and 

incorrectly estimated the visibility 

impacts of controls. We have 

determined these issues resulted in nonapprovable BART determinations for the 

units for which we proposed a FIP. We 

recognize the State’s broad authority 

over BART determinations, and 

recognize the State’s authority to 

attribute weight and significance to the 

statutory factors in making BART 

determinations. As a separate matter, 

however, a state’s BART determination 

must be reasoned and based on an 

adequate record. Although we have 

largely approved the State’s regional 

haze SIP, we cannot agree that CAA 

requirements are satisfied with respect 

to certain specific BART determinations 

and other necessary FIP elements.62

Comment: The BART Guidelines 

provide that the ‘‘basis for equipment 

costs estimates’’ should be documented. 

Id. at 39166. The Guidelines give states 

the option of using ‘‘data supplied by an 

equipment vendor (i.e., budget estimates 

or bids) or by a referenced source (such 

as the Cost Manual, fifth Edition, 

February 1996, EPA 453/B–96–001).’’ 

Id.3. 

In footnote language, the Guidelines 

reiterate that costs should be 

documented, including ‘‘any 

information supplied by vendors that 

affects your assumptions regarding 

purchased equipment costs, equipment 

life, replacement of major components, 

and any other element of the calculation 

that differs from the Control Cost 

Manual.’’ Id. at 39167 n.15. EPA relies 

heavily on this footnote to assert that 

states, including Wyoming, have failed 

to comply with the Guidelines because 

they have not adequately documented 

strict compliance with the CCM. This is 

an erroneous and unreasonable 

interpretation of the Guidelines. When 

read in conjunction with the CAAwhich bestows substantial discretion on 

the states in making BART 

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determinations—and other statements 

made in the BART Guidelines and the 

preamble, this footnote language does 

not require states to supply vendor 

quotes or other specific information 

documenting every single deviation 

from the CCM, nor does it confer 

authority on EPA to reject a state’s 

BART determination when the state 

fails to do so. Cf. United Savings Ass’n 

v. Timbers of Inwood Forest Assocs., 

484 U.S. 365, 371 (1988) (a provision 

read in isolation ‘‘is often clarified by 

the remainder of the statutory scheme 

. . . because only one of the permissible 

meanings produces a substantive effect 

that is compatible with the rest of the 

law’’); United States v. Boisdore’s Heirs, 

49 U.S. 113, 122 (1850) (‘‘[W]e must not 

be guided by a single sentence or 

member of a sentence, but look to the 

provisions of the whole law, and to its 

object and policy.’’). 

Treating the CCM as a binding 

checklist conflicts with the CAA, both 

in a general sense, by attempting to 

mandate exactly how a state must 

evaluate and apply the five BART 

factors, and in a specific sense, by 

excluding certain costs from 

consideration in a BART analysis in the 

face of statutory language mandating 

that BART be determined based on the 

actual ‘‘costs of compliance,’’ not some 

artificial costs of compliance. As to the 

first issue, EPA itself has recognized 

that the CCM is ‘‘a good reference tool,’’ 

which can be supplemented ‘‘if there 

are elements or sources that are not 

addressed by the Control Cost Manual 

or there are additional cost methods that 

could be used.’’ 70 FR at 39127. ‘‘States 

have flexibility in how they calculate 

costs,’’ which is not appropriately 

circumscribed by recommendations set 

out in a non-binding manual. See id. See 

also id. at 39153 (States retain discretion 

in considering ‘‘a number of the factors 

set forth in section 169A(g)(2), including 

the costs of compliance’’). As to the 

second issue, EPA cannot cite to or rely 

upon the CCM to challenge any decision 

by the states taking into account actual 

rather than theoretical costs, because the 

statute requires that real costs be 

considered. CAA Section 169A(g)(2), 42 

U.S.C. 7491(g)(2). The CCM does not 

impose binding obligations on states 

undertaking BART determinations, and 

failure to comply with its overly general 

and non-source specific 

recommendations is not grounds for 

rejection of a state’s analysis of the costs 

of compliance. 

Additionally, the CCM has not been 

subject to notice and comment under 

the APA, 5 U.S.C. 701–706; it has not 

been published in the Code of Federal 

Regulations (CFR); and it is not formally 

incorporated by reference into the BART 

Guidelines. Therefore, it is merely a 

policy statement that is not binding on 

the states. Furthermore, simply 

referencing the CCM in the BART 

Guidelines is not adequate to make that 

non-binding guidance document legally 

enforceable. ‘‘Agency statements ‘having 

general applicability and legal effect’ are 

to be published in the Code of Federal 

Regulations.’’ NRDC v. EPA, 559 F.3d 

561, 564 (D.C. Cir. 2009), citing 1 CFR 

8.1(a). See also Brock v. Cathedral Bluffs 

Shale Co., 796 F.2d 533, 539 (D.C. Cir. 

1986) (‘‘The real dividing point between 

regulations and general statements of 

policy is publication in the Code of 

Federal Regulations, which the statute 

authorizes to contains only documents 

‘having general applicability and legal 

effect . . .’ ’’) (emphasis in original). 

Accordingly, EPA’s assertion that a state 

has failed to comply with the BART 

Guidelines by using costing 

methodology other than that set forth in 

the CCM is contrary to federal law and 

is arbitrary and capricious. 

Federal regulations require that in 

order for material to be formally 

incorporated by reference into the 

Federal Register and the CFR, EPA must 

seek approval from the Director of the 

Federal Register. 1 CFR 51.1. Documents 

are eligible for incorporation only if 

they meet certain criteria; incorporation 

of a document ‘‘produced by the same 

agency that is seeking its approval’’ is 

generally inappropriate unless the 

Director of the Federal Register finds 

that the document also ‘‘possess[es] 

other unique or highly unusual 

qualities.’’ Id. Section 51.7(a)–(b). 

Furthermore, language incorporating a 

publication by reference must be ‘‘as 

precise and complete as possible,’’ 

including a statement that the document 

is ‘‘incorporated by reference’’ and 

‘‘[i]nform[ing] the user that the 

incorporated publication is a 

requirement.’’ Id. Section 51.9(b)(1), (3). 

Finally, dynamic incorporations into the 

CFR are prohibited. Id. Section 51.1(f) 

(‘‘Incorporation by reference of a 

publication is limited to the edition of 

the publication that is approved. Future 

amendments or revisions of the 

publication are not included.’’). See also 

76 FR 33590, 33593 (June 8, 2011) 

(OSHA noting that ‘‘it cannot 

incorporate by reference the latest 

editions of consensus standards without 

undertaking new rulemaking because 

such action would . . . deprive the 

public of the notice-and-comment 

period required by law’’). 

EPA has not complied with the 

requirements for incorporating the CCM 

into the regulations directing states to 

undertake BART Determinations or into 

the BART Guidelines. The regulations 

make no mention of the CCM. The 

BART Guidelines reference the CCM, 

but do not indicate that EPA was 

seeking approval for incorporation by 

reference; and, in any event, it is 

unlikely that the CCM meets the 

requirements for incorporation by 

reference. Additionally, the Guidelines 

reference the 5th edition of the CCM but 

direct states to use the most recent 

version of the CCM, 70 FR 39167 n.14, 

and dynamic incorporation is expressly 

prohibited by the regulations governing 

incorporation by reference, 1 CFR 

51.1(f). Where EPA has failed to comply 

with the requirements for incorporation 

by reference, the referenced material is 

‘‘ineffective to impose obligations upon, 

or to adversely affect’’ third parties. 

NRDC v. Train, 566 F.2d 451, 457 (D.C. 

Cir. 1977). Therefore, the CCM does not 

constitute binding law, and EPA has no 

authority to reject Wyoming’s BART 

determinations on grounds the State 

allegedly strayed from the CCM’s cost 

methodology. 

Response: EPA disagrees with this 

comment. First, with regards to noticeand-comment procedures, the BART 

Guidelines, including the references 

within them to the Control Cost Manual, 

have gone through appropriate public 

comment procedures and the time to 

challenge the BART Guidelines’ 

references to the CCM has passed. If the 

commenter believes the BART 

Guidelines improperly incorporated by 

reference the CCM, the commenter 

could have requested judicial review 

within 60 days of the publication of the 

BART Guidelines in the Federal 

Register. We note that the BART 

Guidelines have indeed been published 

in the Code of Federal Regulations, in 

Appendix Y to Part 51 of Title 40. In 

addition, the reference to the CCM in 

Appendix Y provides adequate notice to 

the public that EPA intended the most 

recent version of the CCM to be used, 

and provides a link to the CCM itself. 

Moreover, the very action that we are 

completing today has gone through 

notice-and-comment procedures. Thus, 

the public has had full opportunity to 

comment on our application of the 

CCM. Furthermore, the commenter’s 

arguments that incorporation by 

reference is necessary for anything with 

binding legal effect miss the mark. The 

BART Guidelines do not contain a 

legally binding requirement to use the 

CCM, because as we explain next, the 

Guidelines clearly state that states may 

deviate from the CCM. 

Commenter mischaracterizes EPA’s 

use and application of the Control Cost 

Manual. EPA’s revised costeffectiveness values are consistent with 

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63 70 FR 39104, 39166. 

64 70 FR 39104, 39168. 

CAA and RHR requirements. EPA 

explained in issuing the BART 

Guidelines that ‘‘[s]tates have flexibility 

in how they calculate costs.’’ See 70 FR 

at 39127 (July 6, 2005). A state may 

deviate from the Control Cost Manual 

provided its analysis is reasonable and 

the deviations are documented. Here, as 

discussed elsewhere in this document, 

Wyoming’s cost-effectiveness values 

were not reasonable. We disagree with 

commenter’s view that our cost analysis 

is improper, but we agree that the CCM 

is not the only source of information for 

the BART analysis. For instance, the 

reference to the CCM in the BART 

Guidelines clearly recognizes the 

potential limitations of the CCM and the 

need to consider additional information 

sources: 

The basis for equipment cost estimates also 

should be documented, either with data 

supplied by an equipment vendor (i.e., 

budget estimates or bids) or by a referenced 

source (such as the OAQPS Control Cost 

Manual, Fifth Edition, February 1996, EPA 

453/B–96–001). In order to maintain and 

improve consistency, cost estimates should 

be based on the OAQPS Control Cost Manual, 

where possible. The Control Cost Manual 

addresses most control technologies in 

sufficient detail for a BART analysis. The 

cost analysis should also take into account 

any site-specific design or other conditions 

identified above that affect the cost of a 

particular BART technology option.63

As to unusual circumstances, the 

BART Guidelines call for 

‘‘documentation’’ to be provided for 

‘‘any unusual circumstances that exist 

for the source that would lead to costeffectiveness estimates that would 

exceed that for recent retrofits,64 which 

as discussed elsewhere in this final 

notice were not provided. 

Comment: If EPA is making a BART 

determination as part of a FIP, it must 

comply with the RHR. Section 

169A(g)(2) requires the BART 

determination to take into consideration 

five statutory factors. These factors 

‘‘were meant to be considered together’’ 

to arrive at a single judgment: a BART 

emission limit. Am. Corn Growers, 291 

F.3d at 6. EPA’s proposed FIP, however, 

does not present a discussion, finding, 

or evaluation of the five statutory factors 

taken together. Instead, EPA merely 

states that it proposes to find that 

Wyoming’s BART analysis fulfills all of 

the BART requirements except as to 

cost-effectiveness and visibility benefits. 

EPA then proposes to engraft onto 

Wyoming’s consideration of the five 

statutory BART factors its own costeffectiveness and visibility analysis, to 

arrive at the conclusion that SCR is 

BART. This fails to comply with the 

statute. The selection of the BART 

emission limit is arrived at by 

considering all five BART factors taken 

together. This requires, for example, that 

the selection of SCR as BART represents 

an acceptable balancing of energy and 

non-air quality environmental factors. 

When Wyoming made this assessment, 

however, it was considering LNBs and 

OFA, and thus its conclusion—which 

EPA proposes to approve—noted that 

‘‘combustion control using LNB with 

OFA does not require non-air quality 

environmental mitigation for the use of 

chemical reagents (i.e., ammonia or 

urea) and there is a minimal energy 

impact.’’ This weighing of statutory 

factors does not discuss or apply SCR, 

and therefore cannot be adopted by EPA 

to support its own BART emissions 

limit in its FIP. EPA is therefore 

proposing a BART emission limit 

without independently considering the 

five statutory BART factors, in violation 

of Section 169A(g)(2). 

Nor does EPA articulate any reasoning 

supporting its proposed BART emission 

limit that applies all of the statutory 

factors. This violates EPA’s obligation to 

cogently explain and articulate each 

step in its reasoning for proposed 

action. State Farm, 463 U.S. at 48 (‘‘[A]n 

agency must cogently explain why it has 

exercised its discretion in a given 

manner.’’). In fact, even as to the costeffectiveness and visibility 

improvements EPA relies upon for its 

BART emission limit, EPA states that 

they are adopted because they are ‘‘in 

the range of what EPA has found 

reasonable for BART in other SIP and 

FIP actions.’’ 78 FR 34776. But EPA 

does not identify which ‘‘actions’’ it is 

talking about, EPA does not show how 

the five factors considered in those 

other ‘‘actions’’ make those ‘‘actions’’ 

comparable this action, and EPA does 

not pay even minimal lip service to the 

statutory requirement that emission 

limits must be based upon local 

considerations arrived at by a careful 

weighing of statutory factors unique in 

each case. EPA is just selecting a 

preferred technology (SCR) because it 

considers the cost of such technology to 

be acceptable to impose upon Basin 

Electric, without regard to whether, 

when considered for its impacts locally 

in Wyoming as Congress intended, it is 

the ‘‘best’’ control option for all of the 

circumstances fully considered. This 

violates five-factor decision-making 

process required by the CAA. 

Response: We disagree with this 

comment. Contrary to commenter’s 

assertions, EPA selected the BART 

emission limits by considering all five 

BART factors taken together and has 

complied with CAA and RHR 

requirements. As discussed in our 

proposal (see for example discussion 

starting at 78 FR 34774) and in our 

response to comments in this action (see 

sections V.B, V.C, and V.D), we clearly 

consider all five factors. 

6. Reasonableness Standard 

Comment: EPA cannot sidestep the 

CAA’s mandate for state discretion by 

developing and applying a new 

‘‘reasonableness’’ standard for 

evaluating and rejecting that discretion. 

EPA’s regional haze FIP action, 

however, does just that. For example, 

EPA incorrectly declared ‘‘the state’s 

BART analysis and determination must 

be reasonable in light of the overarching 

purpose of the regional haze program.’’ 

(See 78 FR 34743) This overly broad and 

illegal ‘‘reasonableness’’ standard allows 

EPA to reject any BART determination 

that EPA dislikes by merely arguing that 

a state’s BART determination is 

‘‘unreasonable’’ and without comparing 

the state’s determination to any firm or 

fixed standards. EPA’s ‘‘reasonableness’’ 

standard requires statutory and 

regulatory limitations on EPA’s 

authority to disapprove a reasoned RH 

SIP. The fallacy of EPA’s improper 

reasonableness standard is made even 

more apparent in its application by 

EPA, which simply rejects as 

‘‘unreasonable’’ many of Wyoming’s 

BART-related decisions without offering 

sufficient justification of why that is the 

case. 

In creating and employing its 

reasonableness standard, EPA goes to an 

even greater extreme by defining 

‘‘reasonable’’ in the most self-serving 

manner imaginable. In short, EPA 

defines ‘‘reasonable’’ to mean that EPA 

agrees with the state’s exercise of 

discretion, and it defines 

‘‘unreasonable’’ to mean EPA does not 

agree with the state. (See e.g., 78 FR 

34,767, where EPA substitutes its 

consideration of costs and visibility 

improvement for Wyoming’s). In this 

way, EPA attempts to bootstrap itself 

into the role of the sole decision-maker 

of what is BART and what is not. The 

CAA does not countenance such 

overreaching by EPA. For all of the 

criticism that EPA makes concerning the 

state’s analyses, the reality is that the 

results of the analyses of both agencies 

are very similar. In some cases, EPA’s 

numbers (such as the cost of SNCR at 

Wyodak) provide less of a justification 

for EPA’s chosen BART controls than 

Wyoming’s numbers did in its analyses. 

However, EPA has used its broad and 

unjustified criticisms of the State’s work 

to discredit the State’s studies and 

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usurp the discretion the State has 

applied to its BART determinations. 

We also received numerous earlier 

comments pertaining to EPA’s use of a 

‘‘reasonableness’’ standard for 

evaluating BART determinations. For 

example, commenters pointed out that 

EPA incorrectly declared ‘‘the State’s 

BART analysis and determination must 

be reasonable in light of the overarching 

purpose of the regional haze program.’’ 

Commenters asserted that the fallacy of 

this improper reasonableness standard 

is apparent in its application by EPA, 

which simply rejects as ‘‘unreasonable’’ 

many of Wyoming’s BART-related 

decisions without offering a sufficient 

explanation of why that is the case. 

Commenters state that EPA makes no 

attempt to explain how any of 

Wyoming’s BART determinations are 

‘‘unreasonable,’’ but simply decrees that 

they are unsupported by any 

comparison to any standards, 

regulations, or statutes. 

Commenters argued that the 

reasonableness standard employed by 

EPA is not found in the CAA, the RHR, 

its Preamble, or Appendix Y. 

Commenters go on to point out that 

nowhere does EPA define or explain 

what constitutes ‘‘reasonable in light of 

the overarching purpose of the regional 

haze program’’, and that this standard 

has not been defined or subjected to 

notice and comment rulemaking. 

Commenters pointed out that the CAA 

does not authorize EPA to adopt and 

employ ‘‘a reasonable in light of the 

overarching purpose of the regional 

haze program’’ criterion for approving 

or disapproving a state BART 

determination as CAA 

Section169A(b)(2)(A) only requires the 

State to consider five statutory factors. 

Commenters asserted that the CAA does 

not impose an additional requirement 

that the final BART determination is 

‘‘reasonable in light of the overarching 

purpose of the regional haze program’’ 

as determined by EPA and as such 

EPA’s imposition of this additional 

criterion is therefore lacking in statutory 

authority. One commenter stated that 

there are no numerical minimums that 

emission rates much achieve in a BART 

determination and there are no statutory 

minimum ‘‘visibility improvement’’ 

obligations. 

One commenter went on to point that 

the failure to define how it will 

determine reasonableness leads to 

inconsistent and subjective agency 

action, as illustrated by EPA’s 

inconsistent treatment of BART 

decisions around the country. The 

commenter pointed to BART decisions 

in Oklahoma, North Dakota, and Nevada 

as examples where EPA’s failure to 

define reasonableness has led to 

inconsistent BART decisions. 

Another commenter argued that 

throughout its proposal, EPA claims to 

have reviewed Wyoming’s SIP under a 

‘‘reasonableness’’ standard. See, e.g., 78 

FR 34776 (‘‘we do not consider 

Wyoming’s analyses . . . to be 

reasonable’’); see also id. at 34778. EPA 

apparently believes that this standard 

allows EPA to substitute its judgment 

for the State’s whenever EPA generally 

alleges that the State’s conclusions or 

methods are not reasonable. Yet EPA 

cites no statutory or regulatory authority 

to support its malleable application of 

this ‘‘reasonableness’’ standard of 

review. EPA appears to have crafted its 

flexible reasonableness standard from 

Alaska Department of Environmental 

Conservation v. EPA, 540 U.S. 461 

(2004). That case stands for the 

proposition that EPA has authority to 

reject a state decision that ‘‘is not based 

on a reasoned analysis[.]’’ Id. at 490 

(internal quotation omitted). EPA has 

misapplied that standard in its proposal 

to disapprove Wyoming’s SIP. 

The commenter further argued that 

the ADEC standard does not allow EPA 

to disapprove SIPs whenever, in EPA’s 

opinion, some element of the SIP is not 

reasonable. Instead, EPA must provide 

SIPs ‘‘considerable leeway’’ and may 

not ‘‘second guess’’ state decisions[.]’’ 

ADEC, at 490 (internal citation omitted). 

Accordingly, EPA may disapprove a SIP 

under ADEC only by showing that the 

SIP is arbitrary. See id. at 490–91. EPA 

therefore must defer to the Wyoming’s 

determinations in the SIP, and may not 

simply substitute its judgment for the 

State’s. And, of course, EPA carries the 

burdens of production and persuasion 

to show that the State acted 

unreasonably in light of the statutes and 

administrative record. Id. at 494. 

The commenter asserted that EPA has 

failed to carry those burdens in its 

proposed partial disapproval of 

Wyoming’s regional haze SIP. The 

administrative record demonstrates that 

Wyoming’s SIP will achieve the 

statutory goal of reasonable progress. 

EPA has not shown otherwise. EPA has 

shown only that if it had crafted the 

implementation plan in the first 

instance, it would have done so 

differently than Wyoming did. But the 

law does not allow EPA to simply 

substitute EPA’s preferences for the 

State’s. Before EPA can disapprove the 

SIP, it must show that the SIP is 

arbitrary, in light of the statutes and the 

record, and with consideration for the 

deference owed the State’s 

determinations. For example, with 

respect to Jim Bridger Units 1 and 2 the 

only meaningful difference in outcomes 

between EPA’s proposed FIP and the 

SIP is a roughly five-year period in 

which EPA’s proposed controls will 

result in lesser emissions, though 

without a perceptible visibility 

improvement. Save for this distinction, 

the SIP and FIP create essentially equal 

improvements in visibility. EPA does 

not explain why a reduction in NOX

emissions that is more expensive but 

not more effective at improving 

visibility is more reasonable than the 

SIP. That lack of explanation renders 

EPA’s proposal arbitrary, and decidedly 

‘‘unreasonable.’’ 

Response: EPA disagrees with this 

comment. The CAA requires states to 

submit SIPs that contain such measures 

as may be necessary to make reasonable 

progress toward achieving natural 

visibility conditions, including BART. 

The CAA accordingly requires the states 

to submit a regional haze SIP that 

includes BART as one necessary 

measure for achieving natural visibility 

conditions. In view of the statutory 

language, it is logical that the 

reasonableness of the State’s BART 

analysis and determination would be 

evaluated in light of the purpose of the 

regional haze program. In addition, our 

regional haze regulations, at 40 CFR 

51.308(d)(ii), provide that when a state 

has established a RPG that provides for 

a slower rate of improvement in 

visibility than the URP (as has 

Wyoming), the state must demonstrate, 

based on the reasonable progress 

factors—i.e., costs of compliance, time 

necessary for compliance, energy and 

non-air quality environmental impacts 

of compliance, and remaining useful life 

of affected sources—that the URP to 

attain natural visibility conditions by 

2064 is not reasonable and that the 

progress goal adopted by the state is 

reasonable. 40 CFR 51.308(d)(iii) 

provides that, ‘‘in determining whether 

the State’s goal for visibility 

improvement provides for reasonable 

progress towards natural visibility 

conditions, the Administrator will 

evaluate’’ the state’s demonstrations 

under section 51.308(d)(ii). It is clear 

that our regulations and the CAA 

require that we review the 

reasonableness of the State’s BART 

determinations in light of the goal of 

achieving natural visibility conditions. 

This approach is also inherent in our 

role as the administrative agency 

empowered to review and approve SIPs. 

Thus, we are not establishing a new 

reasonableness standard, as the 

commenter asserts. As we discuss 

elsewhere, ADEC supports the use of 

this standard, and does not require EPA 

to apply a sort of ‘‘arbitrary and 

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capricious’’ standard in reviewing 

Wyoming’s SIP submittal. The language 

regarding the burdens of production and 

persuasion in ADEC are inapplicable, as 

they refer to a litigation context that is 

not present here. 

Furthermore, this is a SIP review 

action, and we believe that EPA is not 

only authorized, but required to exercise 

independent technical judgment in 

evaluating the adequacy of the State’s 

regional haze SIP, including its BART 

determinations, just as EPA must 

exercise such judgment in evaluating 

other SIPs. In evaluating other SIPs, 

EPA is constantly exercising judgment 

about SIP adequacy, not just to meet and 

maintain the NAAQS, but also to meet 

other requirements that do not have a 

numeric value. In this case, Congress 

did not establish NAAQS by which to 

measure visibility improvement; 

instead, it established a reasonable 

progress standard and required that EPA 

assure that such progress be achieved. 

Here, contrary to the commenter’s 

assertion, we are exercising judgment 

within the parameters laid out in the 

CAA and our regulations. Our 

interpretation of our regulations and of 

the CAA, and our technical judgments, 

are entitled to deference. See, e.g., 

Michigan Dep’t. of Envtl. Quality v. 

Browner, 230 F.3d 181 (6th Cir. 2000); 

Connecticut Fund for the Env’t., Inc. v. 

EPA, 696 F.2d 169 (2nd Cir. 1982); 

Voyageurs Nat’l Park Ass’n v. Norton, 

381 F.3d 759 (8th Cir. 2004); Mont. 

Sulphur & Chem. Co. v. United States 

EPA, 2012 U.S. App. LEXIS 1056 (9th 

Cir. Jan. 19, 2012). 

Finally, regarding commenters’ 

assertions that we are being 

inconsistent, because the comment is 

not specific about what aspect of our 

proposed disapproval is believed to be 

inconsistent with other EPA decisions, 

it is not possible for EPA to address in 

this response any specific concerns. As 

articulated in our proposed rulemaking 

and further explained in our responses 

to other comments, EPA’s partial 

approval and partial disapproval of the 

Wyoming regional haze SIP is consistent 

with the CAA, the RHR, BART Rule, 

and EPA guidance. 

Comment: In the absence of criteria or 

standards by which ‘‘reasonableness’’ 

may be assessed, EPA’s claim that the 

State’s BART for Laramie River Station 

is unreasonable is by definition a mere 

subjective conclusion without basis or 

foundation. EPA must instead articulate 

a standard grounded in the statute by 

which it evaluates and disapproves a 

SIP and then must support its decision 

with a plausible explanation connecting 

the facts to its standard. 

Response: The CAA requires states to 

submit SIPs that contain such measures 

as may be necessary to make reasonable 

progress toward achieving natural 

visibility conditions, including BART. 

The CAA accordingly requires the states 

to submit a regional haze SIP that 

includes BART as one necessary 

measure for achieving natural visibility 

conditions. In view of the statutory 

language, it is reasonable for the State’s 

BART analysis and determination to be 

evaluated in light of the purpose of the 

regional haze program. 

In addition, our regional haze 

regulations, at 40 CFR 51.308(d)(ii), 

provide that when a state has 

established a RPG that provides for a 

slower rate of improvement in visibility 

than the URP (as has Wyoming), the 

state must demonstrate, based on the 

reasonable progress factors—i.e., costs 

of compliance, time necessary for 

compliance, energy and non-air quality 

environmental impacts of compliance, 

and remaining useful life of affected 

sources—that the rate of progress to 

attain natural visibility conditions by 

2064 is not reasonable and that the 

progress goal adopted by the state is 

reasonable. 40 CFR 51.308(d)(iii) 

provides that, ‘‘in determining whether 

the State’s goal for visibility 

improvement provides for reasonable 

progress towards natural visibility 

conditions, the Administrator will 

evaluate’’ the state’s demonstrations 

under section 51.308(d)(ii). Therefore, it 

is clear that our regulations and the 

CAA require that we review the 

reasonableness of the State’s BART 

determinations in light of the goal of 

achieving natural visibility conditions. 

This approach is also inherent in our 

role as the administrative agency 

empowered to review and approve SIPs. 

Thus, we are not establishing a new 

reasonableness standard, as the 

commenter asserts. 

Here, Wyoming concluded that a limit 

of 0.21lb/MMBtu for Laramie River 

Station could be achieved with 

operation of LNBs with OFA. As 

presented in the Introduction section 

and elsewhere in the notice, the State’s 

regional haze SIP determined that NOX

BART for Laramie River Units 1, 2, and 

3 is new LNB/SOFA. We proposed to 

disapprove the State’s determination 

because the State did not reasonably 

assess the costs of compliance and 

visibility improvement in accordance 

with the BART Guidelines. 78 FR 

34766. After revising the State’s costs 

and modeling and re-evaluating the 

statutory factors, we proposed to 

determine that NOX BART is LNB/

SOFA + SCR, with an emissions limit of 

0.07 lb/MMBtu for each unit. As the 

result of the comments received on our 

proposal, we have further revised our 

calculation of the costs of compliance 

and visibility modeling. For example, as 

explained in the BART section of this 

document, we corrected cost estimates 

for elevation and provided detailed 

comments regarding how site 

characteristics were addressed using 

available satellite imagery and why this 

is a valid approach for providing 

estimates that are acceptable for BART 

analysis and consistent with CAA and 

regulations. While we accepted some of 

the revised costs, again as explained in 

the BART section of this document, we 

did not accept others. For example, we 

did not accept cost assumptions where 

the necessary supporting documentation 

was not provided. After re-evaluating 

the BART factors, we continue to find 

that LNB/SOFA + SCR is reasonable as 

BART and are therefore finalizing our 

proposal. As a result, we are finalizing 

our proposed disapproval of the State’s 

NOX BART determination for Laramie 

River Station and finalizing our 

proposed FIP that includes a NOX BART 

determination of LNB/SOFA + SCR, 

with an emission limit of 0.07 lb/

MMBtu (30-day rolling average). The 

facts presented here and elsewhere in 

our final notice, provided a basis and 

foundation, grounded on the CAA and 

regulations, for the EPA to reach its 

decision regarding the unreasonableness 

of Wyoming’s BART for Laramie River 

Station. 

Comment: EPA attempted to use posthoc, immaterial changes that it 

calculated in costs and visibility 

improvements to justify usurping 

Wyoming’s BART decision-making 

authority. This runs counter to the vast 

discretion EPA has given to other states’ 

regional haze SIPs. In Oregon, for 

example, despite EPA and Oregon 

differing in how each calculated BART 

costs that resulted in cost variance of 

over $700 per ton, EPA stated that such 

difference between the two estimates 

would not materially affect Oregon’s 

evaluation. The difference between the 

cost analyses under EPA’s FIP action 

and the Wyoming regional haze SIP 

similarly is immaterial. Similarly, in 

Colorado, the State’s plan included a 

cost analysis that, according to EPA, 

was not conducted in accordance with 

EPA’s Control Cost Manual. In addition, 

EPA explained that Colorado should 

have more thoroughly considered the 

visibility impacts of controlling 

emissions from one BART unit on the 

various impacted Class I areas and not 

focused on just the most impacted Class 

I area. Nevertheless, EPA approved the 

State’s SIP, explaining that ‘‘Colorado’s 

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65As we explain later in this document ‘‘[t]hat is, 

since the visibility improvement for each of the 

State’s control scenarios was due to the combined 

emission reductions associated with SO2, NOX, and 

PM controls, it was not possible to isolate what 

portion of the improvement was attributable to the 

NOX controls alone. For this reason, in the 

modeling conducted by EPA, we held SO2 and PM 

emission rates constant (reflecting the ‘‘committed 

controls’’ for those pollutants identified by 

Wyoming), and varied only the NOX emission rate. 

This allowed us to isolate the degree of visibility 

improvement attributable to the NOX control 

option.’’ See response to comments in the modeling 

section for further information. 

plan achieves a reasonable result 

overall.’’ EPA should afford Wyoming 

the same degree of deference it afforded 

Colorado and Oregon. As demonstrated 

by the impacts of the Wyoming SIP, it 

‘‘achieves a reasonable result overall.’’ 

EPA’s inconsistency is not just 

limited to its disparate actions between 

states. In Wyoming, EPA acted 

inconsistently in its BART 

determinations between sources within 

the state. For example, EPA accepted 

Wyoming’s cost and visibility BART 

analyses for FMC Westvaco and General 

Chemical, along with the PM BART 

analyses for PacifiCorp’s and Basin 

Electric’s BART units. At the same time, 

EPA rejected the NOX BART cost and 

visibility analyses for PacifiCorp’s and 

Basin Electric’s BART units. Wyoming, 

however, used the same BART analysis 

methodology for those BART units at 

which EPA accepted the Wyoming 

BART analysis as it did at those BART 

units for which EPA did not. By 

rejecting some cost and visibility 

analyses on the basis that they were 

improperly performed, while accepting 

others that were performed in the same 

manner, EPA acted arbitrarily and 

capriciously. 

Response: We disagree with this 

comment. In evaluating a State’s BART 

determination, EPA has the discretion to 

develop additional information, such as 

cost and visibility analyses. In the end, 

this additional information, may 

confirm the State’s BART determination 

as reasonable, or it may lead EPA to 

disapprove the State’s BART 

determination as unreasonable. 

However, EPA is not required to 

develop additional information for all 

BART determinations in order to review 

the State’s BART determination. If a 

State’s BART determination appears to 

have reached a reasonable conclusion, 

taking into account existing information 

and the potential magnitude or effect of 

technical flaws in cost or visibility 

analyses, EPA may approve the BART 

determination. However, if the potential 

technical flaws in analyses make it 

possible that the State’s BART 

determination would be unreasonable, 

then EPA may develop additional 

information to try to determine whether 

the State’s BART determination would 

fall within the range of reasonable 

outcomes using proper technical 

analyses. For example, as we explain 

elsewhere in responding to comments 

on modeling, in this action EPA was 

unable to ascertain the visibility benefits 

of individual NOX controls for the 

PacifiCorp units from the State’s 

modeling because the emission 

reductions for multiple pollutants were 

modeled together, and therefore we 

were unable to assess the 

reasonableness of the State’s BART 

determinations.65 Similarly, for the 

Basin Electric units, we were unable to 

ascertain the visibility benefits of SNCR. 

For that reason, we developed 

additional modeling. In some cases, the 

additional modeling confirmed the 

reasonableness of the State’s decisions 

while in others it did not. 

With respect to the State’s PM BART 

determinations, the dollar per ton costs 

for higher-than-current levels of control 

were generally high (regardless of 

potential flaws in determining those 

costs), so existing information was 

adequate to find that the PM BART 

determinations were reasonable. With 

respect to FMC Westvaco and General 

Chemical, the State’s modeling (which 

as we discuss elsewhere used a 

conservative estimate of background 

ammonia which would tend to result in 

an overestimation of visibility impacts) 

showed fairly low visibility benefits 

from NOX controls. Based on 

consideration of the five BART factors, 

the State selected combustion controls 

for these BART sources. EPA also finds 

these determinations reasonable, and 

EPA has no reason (nor does the 

commenter provide one) to think 

otherwise. 

With respect to the comments 

regarding Oregon and Colorado, 

although consistency with similar 

determinations is one hallmark of 

reasonableness, the BART 

determinations are very fact-specific 

and cannot be easily compared across 

states. For example, in the Oregon 

action, EPA noted that (among other 

things) the source would shutdown in 

2020, so ‘‘it [was] reasonable for the 

state to consider the sizable capital cost 

difference between [two technologies], 

and the relatively small incremental 

visibility improvement between the two 

technologies.’’ 76 FR 38900. Thus, EPA 

could assess on the basis of existing 

information that the State’s BART 

determination was reasonable. With 

respect to the Colorado SIP, we disagree 

with the commenter that the Wyoming 

and Colorado SIPs would achieve 

comparable visibility improvement. 

With respect to consistency generally, 

in this action we have considered the 

five factors in the context of each 

facility. Although one factor (such as 

visibility improvement or costs of 

compliance) may be similar for a unit in 

another state, each factor must be 

weighed in the context of the other 

source-specific BART factors. 

Comment: Section 169A(g)(2) of the 

CAA requires states, in determining 

BART, to ‘‘take into consideration the 

costs of compliance, the energy and 

non-air quality environmental impacts 

of compliance, any existing air pollution 

control technology in use at the source, 

the remaining useful life of the source, 

and the degree of visibility 

improvement which may reasonably be 

anticipated to result from the use of 

such technology.’’ 42 U.S.C. 7491(g)(2). 

The CAA does not require the 

achievement of any specific degree of 

visibility improvement, and only 

requires that a BART determination 

eliminate or reduce impairment to 

visibility. See id. Section 7491. If the 

state’s determination does so, the state 

has complied with the statute and 

nothing authorizes EPA to propose or 

impose its own BART decision. 

EPA’s proposed action, however, 

articulates a number of additional 

grounds that must be met for a SIP to 

be ‘‘approvable.’’ These additional 

grounds are not found in the text of the 

CAA and have never been defined or 

promulgated with notice and comment 

rulemaking. For example, EPA’s 

proposed action articulates a two 

pronged test for BART SIP approval: 

First, ‘‘a state must meet the 

requirements of the CAA and our 

regulations for selection of BART’’; and 

then second, ‘‘the state’s BART analysis 

and determination must be reasonable 

in light of the overarching purpose of 

the regional haze program.’’ 78 FR 

34743. 

Basin Electric has no problem with 

the first prong of this test, i.e., that a 

state’s SIP must ‘‘meet the requirements 

of the CAA’’ and ‘‘any [applicable] 

regulations’’—so long as those 

regulations are confined to the areas 

Congress allowed EPA to regulate. 

However, the second prong, i.e., that 

‘‘the State’s BART analysis and 

determination must be reasonable in 

light of the overarching purpose of the 

regional haze program,’’ sets out a new 

‘‘reasonableness’’ obligation that is 

neither defined in nor separately set 

forth in the Act. Essentially, EPA is 

proposing to measure a BART 

determination not just against the 

statutory criteria but also against EPA’s 

own subjective view whether the result 

reached is reasonable enough to meet 

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the ‘‘overarching goal’’ of the Act. But 

since EPA acknowledges that neither 

the Act nor the regulations ‘‘mandate 

specific milestones or rates of progress,’’ 

76 FR 58577, EPA’s subjective 

reasonable enough requirement imposes 

a new legislative standard that either 

goes beyond or, for the first time, 

purports to define ‘‘the requirements of 

the Act.’’ This empowers EPA to 

disapprove a state BART determination 

and replace it with its own on 

reasonableness grounds that have never 

been defined or vetted through public 

notice and comment. 

The same is true with EPA’s assertion 

that Wyoming did not provide 

‘‘sufficient documentation.’’ 78 FR 

34749. EPA is asserting the existence of, 

and then a failure to meet, a ‘‘sufficient 

documentation’’ requirement that is 

both undefined and entirely of EPA’s 

own creation. This allows EPA to 

extend its regulatory reach to determine 

and impose its own view of BART when 

a state’s reasoning, according to EPA, 

fails to meet unannounced and 

undefined legislative criteria. Such an 

expansion of EPA’s substantive powers 

is illegal. EPA may not employ 

evaluative criteria that effectively 

extend or define the reach of the CAA 

without first subjecting those criteria to 

public notice and comment. See, e.g., 

Syncor Int’l Corp. v. Shalala, 127 F.3d 

90, 95–96 (D.C. Cir. 1997) (requiring the 

FDA to subject a rule that extended its 

regulatory reach to notice and comment 

before applying it); U.S. Tel. Ass’n v. 

FCC, 28 F.3d 1232, 1233–34 (D.C. Cir. 

1994) (finding that the FCC’s 

application of a new standard was a 

substantive rule requiring notice and 

comment); Am. Mining Congress v. 

Mine Safety & Health Admin., 995 F.2d 

1106, 1112 (D.C. Cir. 1993) (outlining 

the factors to apply in determining 

when a rule is substantive and thus 

requires notice and comment). 

As the D.C. Circuit Court has 

explained, when an agency implements 

a substantive change to its regulations 

that alters the boundaries of what the 

agency can regulate, the change must be 

subject to public notice and comment so 

that an agency does not expand its 

power without public involvement. 

Appalachian Power Co. v. EPA, 208 

F.3d 1015, 1024 (D.C. Cir. 2000). The 

same is true when EPA purports, for the 

first time, to vet a state SIP revision 

against criteria of its own making not set 

forth in the governing statute or the 

existing regulations. Here, EPA is 

effectively stating that: (1) The most 

cost-effective (on a dollar per ton basis) 

control technology must be selected as 

BART; (2) a state BART determination 

must be ‘‘adequately justified,’’ 

‘‘sufficiently documented,’’ and 

‘‘properly made’’; and (3) the state’s 

determination must meet EPA’s 

subjective view of ‘‘reasonableness’’ in 

reaching the non-binding goal of the 

regional haze Program. Each of these 

new criteria is outcome determinative, 

according to EPA, and each must be met 

for the State to be considered in 

compliance with Section 169A. As such, 

these are new legislative rules that 

cannot be adopted and imposed without 

first being submitted to notice and 

comment rulemaking as required by 

CAA Section 307(d), 4207 U.S.C. 7607. 

An important indicator of when 

public notice is required is that the 

change would allow the agency to 

extend its own power: ‘‘[A] substantive 

rule modifies or adds to a legal norm 

based on the agency’s own authority 

. . . And, it is because the agency is 

engaged in lawmaking that the APA 

requires it to comply with notice and 

comment.’’ Syncor, 127 F.3d at 95 

(emphasis in original). EPA’s current 

proposal to disapprove Wyoming’s 

BART determination does exactly that. 

EPA uses its own authority to modify 

the legal norm for reviewing State BART 

decisions to give itself the ultimate 

authority to impose its own favored 

BART standards. 

The need for advance rulemaking is 

particularly acute when EPA interprets 

and applies a statute that itself 

establishes no concrete, objective 

requirements. No specific rates of 

progress, technologies, or visibility 

improvements are mandated by the 

RHR. Unlike review of a SIP, where EPA 

applies specifically defined ambient 

concentrations to determine if the SIP 

should be approved, there are no 

objective criteria against which to 

measure the ‘‘reasonableness’’ of any 

state BART determination with respect 

to cost and visibility judgments. 

Under EPA’s self-defined standards, 

EPA is left with unfettered discretion to 

disapprove any decision with which it 

disagrees on the grounds that it is not 

‘‘reasonable’’ enough to meet EPA’s 

preferences. This is why the law 

requires EPA to first define and 

promulgate rules explaining what is 

‘‘reasonable’’ enough, or what is 

‘‘sufficiently documented’’ enough, to 

support a BART determination. 

Otherwise, EPA can trump state 

discretion on the basis of internally 

conceived and unexamined evaluative 

criteria that extend EPA’s reach without 

public involvement. 

Response: EPA disagrees with this 

comment. First, even assuming that 

EPA’s proposed action on the Wyoming 

regional haze SIP articulated new 

grounds for evaluating a regional haze 

SIP, the proposed action provides the 

public with the opportunity to 

comment. As evidenced by the 

commenter’s submission, the 

commenter had the opportunity to 

comment on EPA’s approach to 

evaluating the Wyoming regional haze 

SIP and to identify any concerns 

associated with the statement at issue 

from our proposal and other aspects of 

our action. 

Second, the CAA requires states to 

submit SIPs that contain such measures 

as may be necessary to make reasonable 

progress toward achieving natural 

visibility conditions, including BART. 

The CAA accordingly requires the states 

to submit a regional haze SIP that 

includes BART as one necessary 

measure for achieving natural visibility 

conditions. In view of the statutory 

language, it is reasonable that the State’s 

BART analysis and determination 

would be evaluated in light of the 

purpose of the regional haze program. In 

addition, our regional haze regulations, 

at 40 CFR 51.308(d)(ii), provide that 

when a state has established a RPG that 

provides for a slower rate of 

improvement in visibility than the URP 

(as has Wyoming), the state must 

demonstrate, based on the reasonable 

progress factors—i.e., costs of 

compliance, time necessary for 

compliance, energy and non-air quality 

environmental impacts of compliance, 

and remaining useful life of affected 

sources—that the rate of progress to 

attain natural visibility conditions by 

2064 is not reasonable and that the 

progress goal adopted by the state is 

reasonable. 40 CFR 51.308(d)(iii) 

provides that, ‘‘in determining whether 

the State’s goal for visibility 

improvement provides for reasonable 

progress towards natural visibility 

conditions, the Administrator will 

evaluate’’ the state’s demonstrations 

under section 51.308(d)(ii). It is clear 

that our regulations and the CAA 

require that we review the 

reasonableness of the State’s BART 

determinations in light of the goal of 

achieving natural visibility conditions. 

This approach is also inherent in our 

role as the administrative agency 

empowered to review and approve SIPs. 

Thus, we are not establishing a new 

reasonableness standard, as the 

commenter asserts. 

As explained above, our proposal 

clearly laid out the bases for our 

proposed disapproval of the State’s 

BART and reasonable progress 

determinations, and we have relied on 

the standards contained in our regional 

haze regulations and the authority that 

Congress granted us to review and 

determine whether SIPs comply with 

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the minimum statutory and regulatory 

requirements. In determining SIP 

adequacy, we inevitably exercise our 

judgment and expertise regarding 

technical issues, and it is entirely 

appropriate that we do so. Courts have 

recognized this necessity and deferred 

to our exercise of discretion when 

reviewing SIPs. 

Finally, we disagree with the 

argument that we must approve a BART 

determination where the SIP reflects 

consideration of the five factors and the 

BART selection will result in some 

improvement in visibility. We think 

Congress expected more when it 

required the application of ‘‘best 

available retrofit technology.’’ 

Comment: In 2004, EPA represented 

to the United States Supreme Court that 

it would act only very rarely to overrule 

a state decision selecting control 

technology for specific sources. ADEC. 

Relying upon this representation to 

rebut doubts expressed by the dissent, 

the Supreme Court affirmed EPA’s 

decision to overrule a BACT decision 

made by the State of Alaska on the 

grounds that the State’s decision was 

not ‘‘reasonable’’ because the record 

lacked the information necessary to 

support the State’s cost assessment. The 

ADEC Court held that EPA could review 

state BACT determinations to ascertain 

whether they were ‘‘reasonable in light 

of the statutory guides and the state 

administrative record.’’ Id. at 494. 

EPA now relies upon the Supreme 

Court’s use of the word ‘‘reasonable’’ in 

the BACT context to assume authority to 

judge the ‘‘reasonableness’’ of state 

BART decisions when reviewing SIP 

revisions under Section 110, and thus to 

disapprove any BART determination it 

considers ‘‘unreasonable’’ ‘‘in light of 

the over-arching purpose of the regional 

haze program.’’ 78 FR 34743. This 

formulation seriously misconstrues and 

misstates the Supreme Court’s holding 

and runs counter to the CAA’s conferral 

of authority on the State in selecting 

BART. ‘‘Reasonableness in EPA’s 

subjective view’’ cannot be applied as a 

rubric for approving state BART 

decisions, as it allows EPA to impose its 

own BART preferences. Rather than 

adhere to the core principles of 

cooperative federalism codified in the 

RHR by only rarely overruling state 

technology choices, EPA instead does 

exactly what it represented to the 

Supreme Court it would not do— 

routinely overrule state 

determinations—and it does so under 

the rubric of authority to evaluate 

‘‘reasonableness’’ on a subjective basis. 

Examination of EPA’s action in this 

and related BART proceedings around 

the country demonstrates that EPA is 

not using the ‘‘reasonableness’’ standard 

that was actually approved in ADEC. Far 

from endorsing a generic 

‘‘reasonableness in EPA’s view’’ 

standard, the ADEC Court echoed the 

language of APA arbitrary and 

capricious review and upheld EPA’s 

rejection of a State BACT determination 

on grounds that the State’s 

determination was not supported by the 

administrative record. The Court stated 

that ‘‘[o]nly when a state agency’s BACT 

determination is ‘not based on a 

reasoned analysis’ may EPA step in to 

ensure that the statutory requirements 

are honored,’’ and that the Act 

‘‘authorizes EPA to act in the unusual 

case in which a state permitting 

authority has determined BACT 

arbitrarily.’’ 540 U.S. at 490–91; citation 

omitted). The Court added that ‘‘EPA 

adhered to that limited role here, 

explaining why ADEC’s BACT 

determination was ‘arbitrary’ and 

contrary to [the State]’s own findings.’’ 

Id. The Court thus held that EPA had 

properly exercised its authority to reject 

the State’s BACT determination when 

the State switched from an initial 

finding that a certain technology was 

economically feasible to finding that the 

same technology was economically 

infeasible with ‘‘no factual basis in the 

record’’ to support the change. Id. at 

496–500. 

Here, EPA makes no effort to 

formulate and apply a ‘‘reasonableness’’ 

standard that appropriately preserves 

for EPA only the ‘‘limited role’’ of 

insuring that a state decision is not 

arbitrary and capricious and lacking in 

record support. Instead, EPA scours the 

record for inconsequential actions taken 

by states which it can portray as 

‘‘inconsistent with’’ the massively 

complex, out-dated, and non-binding 

CCM or with the largely advisory 

Guidelines so that EPA can declare the 

state’s decision to be ‘‘unreasonable’’ 

and take over the choice of BART 

technology. EPA does not demonstrate 

any arbitrary or capricious conduct, any 

lack of reasoned decision making, or 

any other documented failure by the 

State to follow the requirements of the 

statute, as contemplated by the standard 

actually approved in ADEC. As a result, 

EPA is not employing the 

‘‘reasonableness’’ test properly, and 

with that error is arrogating power 

Congress left to the States, precisely as 

predicted by the ADEC dissent. In state 

after state, EPA is now striking down 

state BART decisions and cloaking its 

disregard for state primacy by adjudging 

those decisions as ‘‘unreasonable,’’ 

purportedly in reliance upon authority 

granted by ADEC. But it strains 

credulity for EPA to assert that state 

after state is making essentially the same 

repeated arbitrary and capricious 

decisions, the remedy for which is 

almost always mandatory imposition by 

EPA of its preferred technology choice: 

SCR. EPA’s ‘‘reasonableness’’ test is 

therefore fundamentally erroneous. EPA 

may not exercise authority ‘‘in a manner 

that is inconsistent with the 

administrative structure that Congress 

enacted into law,’’ ETSI Pipeline 

Project, 484 U.S. at 517, by applying a 

subjective reasonableness standard to 

federalize BART decisions. 

Response: We responded to similar 

comments elsewhere in this document. 

Comment: Because EPA’s proposed 

disapproval of Wyoming’s BART 

determination for Laramie River Station 

is inconsistent with EPA’s prior 

approval of other state BART choices, 

EPA’s proposed decision is an abuse of 

discretion and not entitled to deference 

from a reviewing court. 

For instance, in a CAA case involving 

EPA approval of state Title V programs, 

the Ninth Circuit reversed EPA’s 

disapproval of one state’s program 

where EPA’s decision ‘‘conflict[ed] 

substantially with numerous EPA 

decisions in other states and localities.’’ 

W. States Petroleum, 87 F.3d at 282. In 

that case, EPA had conditioned final 

approval of Washington’s proposed 

Title V program on the State’s repeal of 

certain insignificant emissions units 

(‘‘IEU’’) exemptions. EPA eventually 

approved the State’s Title V program, 

but disapproved the IEUs exemptions as 

inconsistent with the applicable 

regulations. Id. at 283. Industry 

members and the State challenged 

EPA’s disapproval on the basis that 

EPA’s decision was inconsistent with its 

prior interpretation and application of 

the regulations in other states. Id. at 

282–83. Specifically, EPA had 

condoned the exemption of IEUs from 

the permit content requirements of the 

regulations in at least eight other state 

and local programs. Id. at 283. Based on 

this evidence, the Ninth Circuit held 

that EPA’s rejection of Washington’s 

IEU rules was ‘‘undeniably a change in 

agency interpretation.’’ Id. at 284. 

Accordingly, EPA was required to 

support its change by ‘‘reasoned 

analysis,’’ which it did not do. Id. (EPA 

‘‘may not depart, sub silentio, from its 

usual rules of decision to reach a 

different, unexplained result in a single 

case’’). The court held that EPA abuses 

its discretion where it approves 

numerous state programs that include 

the very same aspects forming the basis 

for EPA’s denial of another state’s 

program. Id. at 285. 

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Other courts have similarly expressed 

that an agency acts arbitrarily and 

capriciously when it departs from prior 

interpretations or precedent without 

adequately explaining the reasons for its 

departure. See, e.g., Cnty. of Los Angeles 

v. Shalala, 192 F.3d 1005, 1022 (D.C. 

Cir. 1999) (‘‘A long line of precedent has 

established that an agency action is 

arbitrary when the agency offer[s] 

insufficient reasons for treating similar 

situations differently.’’); Shaw’s 

Supermarkets, Inc. v. N.L.R.B., 884 F.2d 

34, 41 (1st Cir. 1989) (‘‘Unless an agency 

either follows or consciously changes 

the rules developed in its precedent, 

those subject to the agency’s authority 

cannot use its precedent as a guide for 

their conduct; nor will that precedent 

check arbitrary agency action.’’); Puerto 

Rican Cement Co. v. EPA, 889 F.2d 292, 

298 (1st Cir. 1989) (noting ‘‘the wellestablished legal doctrine that an agency 

‘must either follow its own precedents 

or explain why it departs from them’ ’’) 

(citation omitted); Int’l Internship 

Programs v. Napolitano, 853 F. Supp.2d 

86, 94 (D.D.C. 2012) (‘‘[I]f an agency 

adopts ‘a new position inconsistent 

with’ an existing regulation, or effects ‘a 

substantive change in the regulation,’ 

the agency must comply with the notice 

and comment requirements of the 

APA.’’) (citation omitted). Moreover, 

consistency is a factor to be weighed in 

determining how much deference an 

agency’s interpretation is entitled to 

receive. Good Samaritan Hosp. v. 

Shalala, 508 U.S. 402, 417 (1993) 

(‘‘[T]he consistency of an agency’s 

position is a factor in assessing the 

weight that position is due.’’). When an 

‘‘Agency’s regulations reflect the 

Agency’s own longstanding 

interpretation,’’ a court ‘‘will normally 

accord particular deference’’ to such 

‘‘interpretation of ‘longstanding’ 

duration.’’ Barnhart v. Walton, 535 U.S. 

212, 219–20 (2002). But ‘‘the case for 

judicial deference is less compelling 

with respect to agency positions that are 

inconsistent with previously held 

views.’’ Pauley, 501 U.S. at 698. ‘‘An 

agency interpretation of a relevant 

provision which conflicts with the 

agency’s earlier interpretation is 

‘entitled to considerably less deference’ 

than a consistently held agency view.’’ 

I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 

446 n.30 (1987). See also Watt v. 

Alaska, 451 U.S. 259, 273 (1981) (‘‘The 

Department [of Interior]’s current 

interpretation, being in conflict with its 

initial position, is entitled to 

considerably less deference.’’); W. States 

Petroleum, 87 F.3d at 285 (the court 

‘‘need not defer to the EPA because the 

EPA has abused its discretion in 

departing from its own prior 

standards’’). 

Here, EPA has taken an inconsistent 

approach in interpreting the RHR, the 

Guidelines, and the CCM. In particular, 

EPA’s current interpretation of its role 

and the states’ role under these 

provisions conflicts with its prior, longheld understanding that states serve the 

primary role in determining BART and 

that EPA should not interfere with the 

many judgments that go into making 

BART determinations. 

More specifically, EPA’s application 

of its improper and subjective 

‘‘reasonableness’’ standard when 

reviewing BART determinations in the 

SIP approval process has yielded 

inconsistent, and therefore arbitrary and 

capricious, results. Here, EPA identifies 

what it describes as ‘‘cost and visibility 

errors for EGUs’’ in Wyoming’s SIP 

sufficient to permit EPA to disapprove 

the BART determination for Laramie 

River, yet EPA proceeds to approve 

other Wyoming BART decisions as 

‘‘reasonable’’ ‘‘despite the[se] . . . 

errors.’’ 78 FR 34750. Either EPA is 

applying the law arbitrarily and 

capriciously, or it is simply approving 

as ‘‘reasonable’’ only those choices with 

which it agrees, either of which is 

erroneous. EPA must be reasonably 

consistent in reviewing state BART 

determinations. 

Response: We responded to similar 

comments above. 

Comment: EPA’s implementation of 

the RHR does not satisfy the CAA’s 

requirements of consistency. The 

conclusions reached by EPA on similar 

issues vary from case to case in ways 

that cannot be explained by statute, 

regulation, or guiding principle. EPA 

seems to act on BART determinations 

with an eye towards achieving its 

desired outcome rather than 

implementing the CAA even-handedly. 

This is the definition of caprice. States, 

regulated entities, and the public are left 

guessing as to what will be required in 

any given case. Because EPA has been 

so inconsistent in the current case and 

in its overall administration of the RHR, 

its proposal to disapprove Wyoming’s 

BART determinations for Laramie River 

and to impose a FIP is arbitrary and 

capricious and must be abandoned. 

Response: We responded to similar 

comments above. 

7. Reliance on Emission Reductions 

Comment: EPA’s regional haze FIP 

action is also illegal, arbitrary, and 

capricious because it relies upon factors 

outside of the BART five-factor analysis. 

Nowhere in the five-factor analysis, or 

anywhere in the Appendix Y 

Guidelines, is there any support for EPA 

using an ‘‘emissions reduction’’ factor. 

But this is exactly what EPA has done 

in its FIP. For example, EPA cited 

‘‘emission reductions’’ as the basis for 

the FIP BART NOX decisions for Dave 

Johnston Unit 3 (See 77 FR 33052), 

Wyodak (See 77 FR 33055) and Laramie 

River (See 77 FR 33001), among others. 

In doing so, however, EPA failed to 

account for the fact that the regional 

haze program is not an emissions 

reduction program per se, but is a 

visibility improvement program. 

Additionally, it is improper for EPA 

to reject Wyoming’s BART 

determinations, which relied upon the 

proper balancing of all five BART 

factors, and replace those BART 

determinations with EPA’s analysis, 

which relied upon factors outside the 

five-factor analysis, such as emissions 

reductions. (See e.g., 77 FR at 33,052.) 

Courts have held that when an agency 

relies on factors ‘‘which Congress has 

not intended it to consider,’’ then such 

action is arbitrary and capricious. 

Arizona Public Service Co. v. US EPA, 

562 F.3d 1116, 1123 (10th Cir. 2009). 

Earlier comments asserted that EPA’s 

regional haze FIP is also illegal, 

arbitrary, and capricious because it 

relies upon factors outside of the BART 

five-factor analysis. Nowhere in the fivefactor analysis, or anywhere in 

Appendix Y, is there any support for 

EPA using an ‘‘emissions reduction’’ 

factor. But this is exactly what EPA has 

done. For example, EPA cites ‘‘emission 

reductions’’ as the basis for the regional 

haze FIP BART NOX decisions for Dave 

Johnston Unit 3, Wyodak, and Laramie 

River Station, among others. In doing so, 

however, EPA fails to account for the 

fact that the regional haze program is 

not an emissions reduction program per 

se, but is a visibility improvement 

program. 

EPA’s over-reliance on ‘‘emissions 

reductions’’ outside of the mandated 

BART factors has caused EPA to 

overstep the boundaries of the regional 

haze program. This is evidenced by the 

virtually non-existent visibility 

improvements associated with SNCR at 

Wyodak and Dave Johnston that EPA 

approved because of the associated 

emission reductions. Additionally, it is 

improper for EPA to reject Wyoming’s 

BART determinations, which relied 

upon the proper balancing of all five 

BART factors, and replace those BART 

determinations with EPA’s analysis, 

which relied upon factors outside the 

five-factor analysis. Courts have held 

that when an agency relies on factors 

‘‘which Congress has not intended it to 

consider,’’ then such action is arbitrary 

and capricious. Arizona Public Service 

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66 40 CFR 51.308(e)(1)(ii)(A). 

67Commenters also suggest that, EPA has 

methodically changed or selectively ignored the 

requirements from those which were established in 

40 CFR Part 51 and Appendix Y, which were 

published in 2005. The states’ SIPs, written shortly 

after that period, were based on the rules and 

guidance provided at that time. Since then, 

however, EPA has arbitrarily and continually 

changed its interpretation of the regional haze 

regulations in order to achieve emission reductions 

and other objectives well beyond those allowed by 

the regional haze program. Here are a few examples 

of how EPA’s position has changed over the past 

few years with respect to the guidance given for 

determining NOX BART controls. 

Appendix Y provides a presumptive BART NOX

rate differentiated by boiler design and type of coal 

burned. EPA now requires post-combustion 

controls significantly more aggressive than the 

presumptive rates prescribed in Appendix Y. 

Appendix Y makes distinctions for unit size, with 

more aggressive controls targeted at the largest 

units. In Wyoming, EPA now proposes to require 

SCR on units as small as 160 megawatts. The 

preamble to the regional haze rules suggests that 75 

percent of the electric generating units would have 

BART NOX controls cost between $100 and $1,000 

per ton. EPA is now imposing costs, based on its 

own calculations, of $3,700 to $6,000 per ton on 

100 percent of PacifiCorp’s Wyoming BART-eligible 

units. 

SCR controls were only expected to be costeffective controls for cyclone units with high NOX

emission rates. EPA is now proposing postcombustion NOX controls on every BART-eligible 

unit in Wyoming, including the installation of 

eleven SCRs. EPA must stop changing its 

interpretations of the regional haze rules and 

guidelines that were formalized in 2005 and move 

ahead with approving the Wyoming BART analysis 

and the regional haze SIP which complies with 

those rules and guidelines. 

Co. v. US EPA, 562 F.3d 1116, 1123 

(10th Cir. 2009). 

Response: We disagree with the 

commenter’s characterization of the role 

of emission reductions in the BART 

analyses. The RHR provides that: 

The determination of BART must be based 

on an analysis of the best system of 

continuous emission control technology 

available and associated emission reductions 

achievable for each BART-eligible source that 

is subject to BART * * * 66

Thus, the BART Guidelines clearly 

contemplate the assessment of emission 

reductions. 

Emission reductions are a 

consideration in calculating both 

average and incremental cost 

effectiveness in order to evaluate the 

cost of compliance (one of the five 

factors). 70 FR 39167 and 39168. 

Contrary to the commenters’ assertions, 

however, our disapproval of Wyoming’s 

DEQ’s BART analyses is not ‘‘based’’ on 

emission reductions, rather the analyses 

was based on the best system of 

continuous emission control technology 

and associated emission reductions 

achievable, as used in developing the 

BART factor information. For example, 

as discussed elsewhere in this section 

and final notice, contrary to the 

Guidelines’ admonition that ‘‘cost 

estimates should be based on the CCM, 

where possible,’’ the control cost 

calculations supplied by the utilities 

and relied upon by Wyoming included 

costs not allowed by the CCM, such as 

owner’s costs and Allowance for Funds 

Utilized During Construction (AFUDC). 

Thus, Wyoming’s consideration of the 

‘‘cost of compliance’’ for these units was 

not consistent with the Guidelines. 

Furthermore, as explained elsewhere in 

this document, Wyoming’s 

consideration of visibility benefits was 

inconsistent with the Guidelines 

because the State did not provide 

visibility modeling from which the 

visibility improvement from individual 

controls could be ascertained. EPA’s 

analyses comports with the CAA and 

RHR requirements; therefore, we did not 

consider factors outside the Agency’s 

authority. 

In regard to EPA’s disapproval of 

Wyoming’s BART decisions on five 

units, EPA’s decision was based on a 

careful weighing of the five factors, 

including cost of compliance (average 

and incremental) and visibility 

improvement. Just because EPA points 

out the emission reductions does not 

mean that it has cited ‘‘emission 

reductions’’ as the only basis for the 

regional haze FIP BART NOX decisions 

for these units. 

8. Presumptive Limits 

Comment: EPA’s regional haze FIP is 

improper because it requires postcombustion NOX controls as BART, 

when EPA guidelines make clear that 

only combustion controls for NOX are 

contemplated. (See e.g. 77 FR at 33,053.) 

EPA’s Preamble and other guidance 

confirm that the combustion controls of 

LNBs and OFA (in some form) are 

‘‘BART technology’’ for the BART units. 

In the Preamble and the RHR, EPA 

stated that, except for cyclone boilers, 

the ‘‘types of current combustion 

control technology options assumed 

include low NOX burners, over-fire air, 

and coal reburning.’’ 70 FR 39134; see 

also 39,144 (‘‘For all other coal-fired 

units, our analysis assumed these units 

will install current combustion control 

technology.’’) (emphasis added). In fact, 

in the Technical Support Document 

used to develop the presumptive BART 

NOX emissions limits, EPA explained 

that the ‘‘methodology EPA used in 

applying current combustion control 

technology to BART-eligible EGUs’’ 

included applying ‘‘a complete set of 

combustion controls. A complete set of 

combustion controls for most units 

includes a low NOX burner and over-fire 

air.’’ (‘‘Technical Support Document, 

Methodology for Developing NOX

Presumptive Limits,’’ EPA Clean Air 

Markets Division, pg. 1 (dated June 15, 

2005)). 

EPA’s Preamble and Appendix Y 

identify post-combustion controls for 

NOX, such as SCR and SNCR, as ‘‘BART 

technology’’ for only ‘‘cyclone’’ units. 

EPA made it clear that for ‘‘other units, 

we are not establishing presumptive 

limits based on the installation of SCR.’’ 

70 FR 39136. Therefore, EPA’s 

presumptive ‘‘BART technology’’ is 

LNBs and some type of OFA. EPA 

further elaborated in the Preamble on 

SCR costs, stating that although ‘‘States 

may in specific cases find that the use 

of SCR is appropriate, we have not 

determined that SCR is generally costeffective for BART across unit types.’’ 

Id.; see also 40 CFR Part 51, Appendix 

Y, Section IV.E.5.67 Because EPA 

improperly requires post-combustion 

controls in its regional haze FIP, EPA 

should withdraw this requirement and 

approve the Wyoming SIP. If EPA 

desires to impose post-combustion 

controls as BART NOX, it must first 

amend Appendix Y through a proper 

rulemaking procedure. 

Commenters further assert that, when 

EPA issued the RHR, it established 

presumptive NOX BART limits for 

power plants based on EPA’s 

conclusions about the cost effectiveness 

of certain emissions control 

technologies, including SCR and 

combustion controls. 70 FR at 39131, 

39134–39136. These limits are based on 

EPA’s acknowledgment that NOX

controls vary considerably and only in 

‘‘relatively rare cases’’ would SCR be 

appropriate. 69 FR 25184, 25202 (May 5, 

2004). EPA’s own pronouncement on 

the cost effectiveness of SCR belie its 

finding that SCR is cost effective at 

Laramie River Station. 

The presumptive limits for NOX are 

differentiated by boiler design and type 

of coal because NOX control 

technologies are not ‘‘one size fits all’’ 

and cost effectiveness is variable. Id. at 

39134. As EPA noted in proposing 

presumptive NOX BART limits, ‘‘the 

removal efficiencies and costs 

associated’’ with NOX controls ‘‘vary 

considerably, depending upon the 

design and operating parameters of the 

particular boiler being analyzed.’’ 69 FR 

at 25202. For that reason, EPA proposed 

(and ultimately finalized) presumptive 

NOX BART limits that would not 

require post-combustion controls: 

‘‘States should require the lowest 

emission rate that can be achieved 

without the installation of postcombustion controls’’ because they are 

‘‘applicable to most EGUs, are relatively 

inexpensive, and are already widely 

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68 Given the statutory mandate, a state may only 

avoid full consideration of the five statutory factors 

if an initial consideration demonstrates that further 

analysis is moot—for example, where the state 

demonstrates that the subject unit already employs 

the ‘‘most stringent control available.’’ 70 FR at 

39165. Where these unique circumstances are not 

present, a state’s failure to consider the five factors 

(for large EGUs, by complying with the BART 

Guidelines’ five-step analysis) is grounds for 

disapproval. CAA Section 110(k)(3), (l); see 

Oklahoma, 723 F.3d at 1207–08. 

applied.’’ Id. Indeed, EPA ‘‘recognize[d] 

that a small number of the largest power 

plants may need to install an SCR unit 

to meet this control level. In such 

relatively rare cases, a State, at its 

discretion, may find SCR to be 

appropriate if the source causes 

visibility impacts sufficiently large to 

warrant the additional capital cost.’’ Id. 

(emphasis added). 

EPA’s presumptive BART 

determinations for coal-fired EGUs of 

various boiler configurations 

demonstrate that emissions control 

devices with an average cost 

effectiveness greater than $1,350 per ton 

are not cost effective. Sargent & Lundy 

analyzed the presumptive BART limits 

in EPA’s ‘‘Technical Support Document 

for BART NOX Limits for Electric 

Generating Units Excel Spreadsheet’’ 

and EPA’s ‘‘Technical Support 

Document—Methodology for 

Developing BART NOX Presumptive 

Limits,’’ and compiled EPA’s cost 

effectiveness thresholds for each boiler 

design and coal type. Sargent & Lundy, 

‘‘BART Cost Effectiveness Thresholds’’ 

(Jan. 6, 2010). Exhibit 17 to commenter 

0148. The report was prepared to 

supplement North Dakota’s BART 

determination for Basin Electric’s 

Leland Olds Station Units 1 and 2, but 

is equally applicable to any BART 

determination for coal-fired utility 

boilers, including Laramie River Station. 

Sargent & Lundy concludes that based 

on EPA’s own assumptions about 

acceptable cost effective levels, ‘‘a 

threshold of $1,350/ton should be used 

to establish the cost-effectiveness of 

NOX retrofit control technologies.’’ Id. at 

12. 

Sargent & Lundy’s report 

demonstrates that EPA consistently 

found control technologies to be cost 

effective if the cost of NOX removal was 

less than $1,350/ton, and not to be cost 

effective if the cost of NOX removal was 

greater than $1,350/ton. Id. at Figure 3 

and accompanying text. For example, 

for all boiler categories other than 

cyclone units, SCR had an overall 

average cost effectiveness of $1,749/ton 

NOX removed and was considered not 

to be cost effective. Id. at 11. 

Combustion controls at non-cyclone 

boilers had an overall average cost 

effectiveness of $535/ton NOX removed 

and were found to be cost effective. Id. 

SCR is not cost effective at Laramie 

River Station because it greatly exceeds 

the $1,350/ton threshold used by EPA in 

its presumptive BART determinations. 

EPA’s own flawed cost effectiveness 

analysis estimates that installation of 

SCR at Laramie River Station would 

range from between $3,589 and $3,903 

per ton of NOX removed—far above the 

$1,350/ton threshold used in its 

presumptive BART determination. 78 

FR at 34775–34776. EPA does not 

mention its presumptive BART limits in 

its proposed disapproval of Wyoming’s 

BART determinations, and offers no 

explanation for departing from the 

presumptive levels and the associated 

use of combustion controls. 78 FR at 

34772–34777. Moreover, when Sargent 

& Lundy estimated costs of SCR at 

Laramie River Station based on a 

detailed scoping-level study, it found 

that costs per ton of NOX removed 

would range from $8,531 to $9,048, an 

amount seven times greater than the 

threshold used in the presumptive 

BART determination. Sargent & Lundy 

Evaluation, Table 7. See also Section 

XVIII.A. 

We received numerous comments 

earlier that EPA’s regional haze FIP is 

improper because the BART units are 

meeting the presumptive limits in the 

BART guidelines based on the 

installation of combustion controls. 

Commenters go on to assert that the 

BART Guidelines only require the 

installation of LNBs/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 the proposed action and 

that this is contrary to the express 

requirements in both the RHR and the 

BART Guidelines. The commenter goes 

on to say that EPA’s attempt to 

completely ignore the 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 Guidelines. One 

commenter asserted that the BART 

Guidelines show 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 Guidelines 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 Guidelines, but in 

this action EPA does not even deign to 

acknowledge the existence of the 

presumptive limits, as if the 

presumptive BART limits were no 

longer a binding regulation. 

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. 

Response: We disagree with the 

commenters. The CAA states the 

following regarding emission limits for 

fossil-fuel fired generating power plants 

having a total generating capacity in 

excess of 750 MW: 

In the case of a fossil-fuel fired generating 

power plant having a total generating 

capacity in excess of 750 megawatts, the 

emissions limitations required under this 

paragraph shall be determined pursuant to 

guidelines, promulgated by the 

Administrator under paragraph (1). 

EPA disagrees that the CAA mandates 

specific control levels (i.e., presumptive 

emission limits) for power plants with 

a total generating capacity of 750 MW or 

greater. Rather, the CAA directed EPA to 

develop guidelines for states to establish 

BART emission limits, and required that 

power plants having a total generating 

capacity in excess of 750 MW follow the 

guidelines when establishing BART 

emission limits. In response, in 2005 

EPA promulgated the BART Guidelines, 

which provide a detailed description of 

how a state must approach the BART 

determination process for certain large 

EGUs, and required that the 

determination of fossil-fuel fired power 

plants having a total generating capacity 

greater than 750 MW must be made 

pursuant to the BART Guidelines. As 

such, the plain reading of the CAA 

language makes it clear the intent was 

to make the BART Guidelines 

mandatory for EGUs larger than 750 

MW, as opposed to presumptive limits. 

Compliance with EPA’s 

‘‘presumptive’’ NOX emission limits 

does not excuse a state from performing 

such an analysis, because the 

presumptive limits serve as a floor, not 

a ceiling, for BART. Furthermore, the 

presumptive limits in the Guidelines do 

not supplant the Act’s mandate to 

consider the five statutory factors, as 

codified in the RHR.68 Additionally, 

commenters provide no showing that 

the assumptions underlying EPA’s 

older, generic calculations 

representative of hundreds of plants in 

fact represent BART, under current 

circumstances, at these particular 

plants. Moreover, far from rendering the 

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presumptive limits ‘‘meaningless,’’ 

EPA’s interpretation is in fact necessary 

to effectuate the purpose of the Haze 

Rule. The fundamental purpose of the 

BART requirement is to determine the 

‘‘best system of continuous emission 

control technology available and 

associated emission reductions 

achievable for each BART-eligible 

source.’’ 40 CFR 51.308(e)(1)(ii)(A) 

(emphasis added). To allow states to 

adopt the presumptive limits without 

any assessment of whether those limits 

represent the ‘‘best’’ control for a 

particular EGU at the time of the 

determination would be unreasonable in 

light of the overarching purpose of the 

Haze Rule and the CAA’s visibility 

requirements. The presumptive limits 

ensure that states aim to achieve, at a 

minimum, the level of emissions 

reduction that was available and costeffective at the time the BART 

Guidelines were adopted. EPA 

elaborated in the BART Guidelines 

themselves, clarifying that the Agency 

expected states to not only meet, but in 

appropriate cases exceed the 

presumptive limits: ‘‘While these 

[presumptive] 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.’’ 40 

CFR part 51, App. Y, at IV.E.4 (emphasis 

added). Therefore, EPA’s proposed 

rulemaking on the Wyoming regional 

haze SIP is not contrary to the 

requirements of the CAA and 

regulations. 

Additionally, 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: 

‘‘[s]tates 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 limits do 

not obviate the need to identify the best 

system of continuous emission control 

technology on a case-by-case basis 

considering the five factors. A state may 

not simply ‘‘stop’’ its evaluation of 

potential control levels at 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 interpretation 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. 

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, 

but not a value that a state could adopt 

without conducting a five factor 

analysis considering more stringent, 

technically feasible levels of control. 

Commenters focus on narrow 

passages of the BART guidelines to 

support their view that the presumptive 

limits represent the most stringent 

BART controls that EPA can require for 

regional haze. However, these passages 

must be reconciled with the language of 

the RHR cited above, as well as other 

passages of the BART guidelines and 

associated preamble. A central concept 

expressed in the guidelines is that a 

state is not required to consider the five 

factors if it has selected the most 

stringent level of control; otherwise, a 

state must fully consider the five factors 

in determining BART. 40 CFR part 51, 

appendix Y, section IV.D.1, step 1.9. 

Undoubtedly, as the commenters 

note, the presumptive limits for NOX

represent cost effective controls, but it is 

well-understood that limits based on 

combustion controls do not represent 

the most stringent level of control for 

NOX. Thus, a state which selects 

combustion controls and the associated 

presumptive limit for NOX as BART 

may only do so after rejecting more 

stringent control technologies based on 

full consideration of the five factors. 

Our interpretation reasonably reconciles 

the various provisions of our 

regulations. We have clearly 

communicated our views on this subject 

in other states, and, following our 

interpretation, Wyoming conducted an 

analysis of control technologies that 

would achieve a more stringent limit 

than combustion controls. 

In promulgating a FIP for the 

Wyoming BART sources, we arrived at 

an emission limit based on 

consideration of the five factors. 

Contrary to the commenter’s suggestion, 

EPA’s BART guidelines do not establish 

a presumptive cost effectiveness level 

that is a ‘‘safe harbor’’ or ‘‘shield’’ for 

state BART determinations, or that EPA, 

when promulgating a FIP, may not 

exceed in determining BART. Once a 

FIP is required, we stand in the state’s 

shoes. This is not EPA establishing a 

new presumptive limit or national rule; 

it is EPA, acting in the State’s shoes, 

conducting a reasonable source-specific 

consideration of cost and the other 

regulatory factors. 

9. Compliance With 40 CFR 51.308 

Comment: EPA should have judged 

Wyoming’s BART determinations on the 

basis of whether or not the Wyoming 

BART determinations are ‘‘necessary’’ to 

make ‘‘reasonable progress.’’ EPA’s 

RHRs provide two regulatory paths to 

address regional haze. (See 77 FR 30953, 

30957 (May 24, 2012).) ‘‘One is 40 CFR 

51.308, requiring states to perform 

individual point source BART 

determinations and evaluate the need 

for other control strategies.’’ Id. ‘‘The 

other method for addressing regional 

haze is through 40 CFR 51.309, and is 

an option for nine states termed the 

‘Transport Region States’ which 

include: . . . Wyoming, . . . 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.’’ 

Id. Wyoming submitted the Wyoming 

regional haze SIPs under Section 309. 

Therefore, the requirements of Section 

308 only apply to the extent required by 

Section 309. Importantly, NOX

emissions and controls under Section 

309 are treated differently than NOX

emissions and controls under Section 

308. This is because Congress and EPA 

purposefully focused Section 309 on 

addressing the issue of SO2 emissions, 

the predominant cause of regional haze 

on the Colorado Plateau in the western 

US. By contrast, Section 309 recognizes 

that NOX emissions have a significantly 

smaller impact on visibility on the 

Colorado Plateau. In fact, the WRAP 

report estimated that ‘‘stationary source 

NOX emissions result in nitrates that 

probably cause about 2 to 5 percent of 

the impairment on the Colorado 

Plateau.’’ Several illustrations in the 

WRAP NOX report show that nitrate 

emissions have very little impact on 

Class I areas in or near Utah and 

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5098 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

Wyoming. The WRAP report also 

explains that ‘‘NOX controls will have a 

relatively small impact on PM and 

visibility in the West.’’ 

The Wyoming SIP, including BART 

determinations for NOX, is consistent 

with the WRAP’s NOX information, and 

also properly acknowledges the 

relatively small impact nitrates from 

stationary sources like PacifiCorp’s 

BART units have on visibility 

impairment in Wyoming. Wyoming’s 

SIP, page 62, states that ‘‘the majority of 

nitrate stems from mobile sources.’’ The 

SIP also explains that in all but one 

Class I area ‘‘contributions from other 

states and Canada are much larger than 

contributions from inside Wyoming.’’ 

Id. Wyoming correctly determined, 

consistent with the WRAP reports and 

other data, that controlling NOX

emissions from stationary sources like 

PacifiCorp’s BART units would yield 

very little visibility improvement in 

Wyoming. EPA’s own regional haze 

visibility map shows that visibility in 

Wyoming is among the best in the 

country. 

In light of the above information, it is 

understandable that Section 309 focuses 

on addressing SO2 emissions. Indeed, 

WRAP focused their efforts primarily on 

SO2 emissions because the research 

indicated this pollutant had the greatest 

impact on visibility. ‘‘Recommendations 

for Improving Western Vistas,’’ authored 

by the Grand Canyon Visibility 

Transport Commission, (June 10, 1996) 

at page 32 (identifying sulfates as ‘‘the 

most significant contributor to visibility 

impairment’’ from stationary sources). 

In a separate action, EPA acknowledged 

that Wyoming has complied with the 

Section 309’s SO2 requirements and 

made great progress towards improving 

and protecting visibility as a result. For 

all of these reasons, Section 309 takes a 

different approach to NOX emissions 

than does Section 308, placing much 

less emphasis on the need for significant 

reductions in NOX emissions and 

instead focusing almost all attention and 

resources in the western U.S. on 

reducing SO2 emissions. EPA’s FIP, 

with its incredibly expensive and 

unneeded NOX control equipment, 

ignored the focus and intent of Section 

309 and refused to acknowledge the 

discretion available to Wyoming to 

balance this information in making its 

BART determinations. 

Additionally, as a result of the lesser 

emphasis in Section 309 on NOX

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

requires a regional haze SIP to ‘‘contain 

any necessary long term strategies and 

BART requirements for stationary 

source . . . NOX emissions.’’ Section 

308, by contrast, does not include a 

similar ‘‘necessary to achieve reasonable 

progress’’ threshold for BART. The 

difference between the two 

requirements is both intentional and 

meaningful. If a state like Wyoming 

finds that a particular BART 

requirement is not ‘‘necessary’’ to make 

‘‘reasonable progress,’’ then that BART 

requirement should not be required as 

part of the regional haze SIP. This 

interpretation is supported by EPA’s 

own position in Central Arizona Water 

Conservancy District v. United States, 

990 F.2d 1531 (9th Cir. 1993). There, 

‘‘EPA chose not to adopt the emission 

control limits indicated by the BART 

analysis, but instead to adopt an 

emissions limitations standard that 

would produce greater visibility 

improvement at a lower cost.’’ Id. at 

1543. The court agreed with EPA, 

stating that ‘‘Congress’s use of the term 

‘including’ in Section 7491(b)(2) prior to 

its listing BART as a method of attaining 

‘reasonable progress’ supports EPA’s 

position that it has the discretion to 

adopt implementation plan provisions 

other than those provided by BART 

analyses in situations where the agency 

reasonably concludes that more 

‘reasonable progress’ will thereby be 

attained.’’ Id. This same rationale 

applies to the term ‘‘necessary’’ in 

Section 309. Therefore, in rejecting 

Wyoming’s regional haze SIP and 

adopting a FIP, EPA is required to show 

that the Wyoming SIP will not achieve 

‘‘necessary reasonable progress’’ 

towards the visibility goal, and EPA’s 

FIP will. EPA has failed to provide any 

support for such a position. 

Other comments suggest that 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. Wyoming submitted its regional 

haze SIPs under section 51.309. 

Therefore, the requirements of section 

51.308 only apply to the extent required 

by section 51.309. 

Wyoming’s regional haze SIP is 

consistent with WRAP’s NOX

information, and also emphasizes the 

relatively small impact nitrates that 

stationary sources have on visibility 

issues in Wyoming. Wyoming correctly 

determined, consistent with the WRAP 

reports and other data, that controlling 

NOX emissions from stationary sources 

like PacifiCorp’s units would yield very 

little visibility improvement in 

Wyoming. Section 51.309 

understandably is intended to focus on 

SO2 due to the greater visibility impact 

from SO2. In a separate action, EPA 

acknowledged that Wyoming has 

complied with the section 51.309’s SO2

requirements and made great progress 

towards improving and protecting 

visibility as a result. 

As a result of the lesser emphasis in 

section 51.309 on NOX emissions, 40 

CFR 51.309(d)(4)(vii) requires a regional 

haze SIP to ‘‘contain any necessary long 

term strategies and BART requirements 

for stationary source . . . NOX

emissions.’’ Section 51.308, by contrast, 

does not contain a similar ‘‘necessary’’ 

threshold for BART. If a BART 

requirement is not ‘‘necessary’’ for a 

section 51.309 state, such as Wyoming, 

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

not required as part of the regional haze 

SIP. In other words, section 51.309 

allows a state even more discretion 

because of this ‘‘necessary’’ requirement 

than would otherwise be allowed under 

section 51.308. Wyoming has authority 

to adopt those regional haze SIP 

provisions that it believes provide for 

‘‘reasonable progress,’’ even when those 

plan provisions do not align directly 

with BART as that may be determined 

under Section 51.308. 

40 CFR 51.309(d)(4)(vii) provides that 

‘‘[a]ny such BART provisions may be 

submitted pursuant to either 

51.308(e)(1) or 51.308(e)(2).’’ By using 

the permissive term ‘‘may,’’ EPA makes 

clear that such a submission, under 

either subsection, is voluntary and not 

mandatory for section 51.309 states. For 

this reason, Wyoming, as a WRAP state, 

was never required to comply with 40 

CFR 51.308(e)(1)(ii)(A) and is only 

required to include whatever BART 

NOX determinations are ‘‘necessary,’’ as 

determined by the State. If Wyoming’s 

section 51.309’s SO2 controls already 

provide the adequate level of visibility 

improvement and protection, then, by 

definition, little or no BART NOX

controls would be ‘‘necessary.’’ EPA has 

failed to show how any ‘‘necessary’’ 

NOX controls were excluded from the 

Wyoming regional haze SIP; therefore it 

should approve Wyoming’s regional 

haze SIP. 

Response: We disagree with these 

comments. 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 rule 

to mean that there are different BART 

requirements for section 308 and 309 

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regional haze SIPs. EPA’s rulemaking 

made no finding that BART 

determinations conducted for a state 

submitting a SIP under section 51.309 

should be conducted any differently 

than a state submitting a 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 proposal and 

our response to other comments, 

Wyoming 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. 40 CFR 51.309(d)(4)(viii) 

is clear in that the implementation plan 

‘‘must’’ contain BART requirements. 

The proposed rulemaking explained 

that the provision that provides that 

‘‘[a]ny such BART provisions may be 

submitted pursuant to either Section 

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 (Aug. 1, 

2005). 

Moreover, EPA’s proposal 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). Wyoming’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, Wyoming’s Section 51.309 

SIP does not provide the adequate level 

of visibility improvement to meet the 

BART requirements. 

With respect to the relationship of 

BART and requirements for reasonable 

progress under 40 CFR 51.308, EPA 

interprets the reasonable progress 

requirements to apply to BART sources. 

As explained in our guidance, due to 

the similarity of the BART and 

reasonable progress factors, states may 

reasonably rely on their BART 

determinations to show reasonable 

progress for those sources for the first 

planning period. However, BART is an 

independent requirement of the statute 

and the RHR. We have disapproved 

certain BART determinations by 

Wyoming not due to a failure to make 

reasonable progress, but due to a failure 

to consider the BART factors 

appropriately. 

10. Legal Analysis 

Comment: We received comments 

that the proposed rule is costly and that 

preliminary calculations by the State of 

Wyoming showed that the BART and 

long-term strategies under the proposed 

rule will cost over $170 million on an 

annualized basis; with total capital cost 

will be over $1 billion, and annual 

operating costs of nearly $600 million. 

Commenters went on to say that since 

the rulemaking action will exceed $100 

million dollars in annual costs it should 

be reviewed according to the standards 

established in Executive Orders 12866 

and 13563. * * * 

Another commenter notes that EPA 

has also failed to conduct any analysis 

of the impacts under the Unfunded 

Mandates Reform Act (UMRA). In 

addition to the capital costs of nearly 

$750,000,000 for Laramie River Station 

alone, the annual operating costs of an 

SCR system at Laramie River Station are 

over $ 15,000,000. The commenter 

asserts that this amount is nearly double 

that projected by EPAs expert Andover 

of just under ($5,000,000), using 

generalized information. These annual 

operating costs, on top of the capital 

costs, for the three units at Laramie 

River Station alone, are significant, and 

when coupled with the impacts for the 

remaining five PacifiCorp units, far 

exceed the thresholds of the UMRA. 

The UMRA is designed to ensure that 

Congress and federal agencies analyze 

the impact of proposed statutes and 

regulations on local governments and 

other entities before taking action. 

Where the estimates indicate at least a 

$50 million per fiscal year direct cost of 

all intergovernmental mandates, or a 

$100 million per fiscal year direct cost 

of private sector mandates, an analysis 

is required to evaluate the impact on 

local governments and private entities, 

and if necessary, the mandate must be 

funded. Western Minnesota, Missouri 

River Energy Services, and the 

governmental entities they serve— 

together with the others served by the 

remaining co-owners of Laramie River 

Station—will feel an annual impact in 

excess of $50 million per year should 

the EPA’s FIP become final. Failure of 

EPA to conduct any analysis of the 

impact of imposing an unfunded 

mandate on the small governmental 

entities served by Laramie River Station, 

and the other BART units in Wyoming 

shows a blatant disregard for the 

regulatory process and protections that 

are to be accorded such significant 

rulemakings. 

Earlier comments argued that the 

UMRA has been applied to EPA actions 

where the costs to regulated entities in 

numerous states have been aggregated. 

Based upon this precedent, PacifiCorp 

believes that EPA should aggregate all 

regional haze compliance costs across 

Wyoming, Utah, Colorado and Arizona 

for PacifiCorp, which would easily 

exceed the $100 million threshold. At a 

minimum, EPA should aggregate costs 

for EPA’s FIPs in Wyoming and 

Arizona, which would also exceed the 

$100 million threshold. 

Additional earlier comments 

suggested that the UMRA requires 

federal agencies to identify unfunded 

federal mandates. For rules that contain 

federal mandates, such as EPA’s 

regional haze FIP action requiring 

expensive pollution controls, title II of 

UMRA requires the agencies to prepare 

written statements, or ‘‘regulatory 

impact statements,’’ (RIS) containing 

specific descriptions and estimates, 

including a qualitative and quantitative 

assessment of the anticipated costs and 

benefits of the mandate. This 

requirement is triggered by any rule that 

‘‘may result in the expenditure by state, 

local, and tribal governments, in the 

aggregate, or by the private sector, of 

$100,000,000 or more (adjusted 

annually for inflation) in any 1 

year. . .’’ 2 U.S.C. 1532(a). 

When a RIS is required, the agency is 

also required to ‘‘identify and consider 

a reasonable number of regulatory 

alternatives and from those alternatives 

select the least costly, most cost 

effective, or least burdensome 

alternative that achieves the objectives 

of the rule’’ or explain why that 

alternative was not selected. 2 USCA 

Section 1535. 

Here, EPA has failed to comply with 

the UMRA, arguing that the regional 

haze FIP ‘‘does not contain a federal 

mandate that may result in expenditures 

that exceed the inflation adjusted 

UMRA threshold of $100 million.’’ EPA 

is wrong. PacifiCorp currently 

anticipates spending more than $100 

million dollars in at least 2014 ($104 

million), 2015 ($175 million), and 2016 

($154 million) to comply with EPA’s 

regional haze FIP for Wyoming (based 

on alternative ‘‘one’’ for the Jim Bridger 

plant). If the regional haze compliance 

costs imposed by EPA’s proposed FIP in 

Arizona and EPA’s approval of the 

Colorado regional haze SIP are factored 

in, the costs to PacifiCorp in a given 

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year would be significantly higher. Also, 

when the BART NOX and PM 

determinations are approved by EPA for 

Utah, these costs to PacifiCorp in a 

given year could be much, much higher. 

Response: We disagree with this 

comment. Under section 202 of the 

UMRA, before promulgating any final 

rule for which a general notice of 

proposed rulemaking was published, 

EPA must prepare a written statement, 

including a cost-benefit analysis, if that 

rule includes any ‘‘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. EPA has 

determined that this rule does not 

contain a Federal mandate that may 

result in expenditures that exceed the 

inflation-adjusted UMRA threshold of 

$100 million (in 1996 dollars) by State, 

local, or Tribal governments or the 

private sector in any one year. We 

estimate that the total annual costs in 

the aggregate are approximately $93 

million (see Table 1). 

Comment: EPA’s regional haze FIP 

states that EPA’s proposed action is not 

subject to Executive Order 13211, 

‘‘Actions Concerning Regulations that 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28,355 

(May 22, 2001)), because the proposed 

action ‘‘is not a significant regulatory 

action under Executive Order 12866.’’ 

78 FR 34790. EPA further claims the 

proposed regional haze FIP is not a 

‘‘significant regulatory action’’ under 

Executive Order 12866 because the 

‘‘proposed FIP applies to only five 

facilities’’ and is ‘‘therefore not a rule of 

general applicability.’’ EPA is incorrect, 

and should withdraw its regional haze 

FIP. 

Executive Order 13211 provides that 

agencies shall submit a statement of 

energy effects for matters ‘‘identified as 

significant energy actions.’’ A 

‘‘significant energy action’’ is defined as 

‘‘any action by an agency . . . that 

promulgates or is expected to lead to the 

promulgation of a final rule or 

regulation . . . that is a significant 

regulatory action under Executive Order 

12866 or any successor order’’ and 

‘‘likely to have a significant adverse 

effect on the supply, distribution, or use 

of energy’’; or is ‘‘designated by the 

Administrator of the Office of 

Information and regulatory Affairs as a 

significant energy action.’’ Id. Section 

4(b) (emphasis added). Executive Order 

12866, in turn, which concerns 

Regulatory Planning and Review, 

defines a ‘‘significant regulatory action’’ 

as any regulatory action that is likely to 

result in a rule that may: (1) Have an 

annual effect on the economy of $100 

million or more or adversely affect in a 

material way the economy, a sector of 

the economy, productivity, competition, 

jobs, the environment, public health or 

safety, or State, local, or tribal 

governments or communities. 58 FR 

51735, 51738 (Oct. 4, 1993) 

According to PacifiCorp’s current 

estimates (excluding allowance for 

funds used during construction 

(AFUDC)), it will spend more than $100 

million dollars in capital costs alone in 

2014 ($225 million), 2015 ($139 

million), 2017 ($146 million) and 2018 

($118 million) to comply with EPA’s 

regional haze FIP for Wyoming (based 

on alternative ‘‘one’’ for the Jim Bridger 

plant). If regional haze compliance costs 

currently imposed or approved by EPA 

on PacifiCorp’s BART Units in Arizona 

and Colorado are factored in, the total 

capital cost impacts to PacifiCorp in any 

given year would be significantly 

higher; increasing to approximately 

$246 million in 2014, $190 million in 

2015, $168 million in 2016, $181 

million in 2017, and $118 million in 

2018. Also, because the BART NOX and 

PM determinations have not yet been 

approved by EPA for PacifiCorp’s BART 

Units in Utah, EPA’s ultimate BART 

requirements in Utah likely will add 

even more costs in overlapping 

installation and compliance years, with 

total project costs for SCR installations 

on PacifiCorp’s Utah units currently 

estimated to cost in excess of $150 

million per unit to install (again, 

excluding AFUDC). Based upon these 

basic costs alone, there is no doubt that 

EPA’s FIP meets the definition of a 

‘‘significant regulatory action.’’ Other 

large costs, including those related to 

EPA’s BART determinations for Basin 

Electric, also should be factored into 

this analysis together with PacifiCorp’s 

costs because they are part of the same 

‘‘sector of the economy.’’ Also, as 

demonstrated by PacifiCorp’s July 12, 

2012, submittal in this docket, EPA’s 

regional haze FIP will have an adverse 

effect on the supply and distribution of 

electricity within PacifiCorp’s system. 

Therefore, EPA’s determination that 

Executive Order 13211 did not apply is 

incorrect, and arbitrary and capricious. 

Moreover, EPA has admitted in the 

proposed rule that system-wide 

‘‘affordability’’ costs should be part of 

the BART analysis. 78 FR 34756. 

Because EPA’s FIP is a ‘‘significant 

regulatory action,’’ EPA must prepare a 

‘‘Statement of Energy Effects’’ for the 

Administrator of the Office of 

Information and Regulatory Affairs, 

Office of Management and Budget. (See 

Executive Order 13211, Section 2.) 

Because EPA did not do so, the regional 

haze FIP is improper. 

Executive Order 12866, in turn, which 

concerns Regulatory Planning and 

Review, defines a ‘‘significant regulatory 

action’’ as any regulatory action that is 

likely to result in a rule that may: (1) 

Have an annual effect on the economy 

of $100 million or more or adversely 

affect in a material way the economy, a 

sector of the economy, productivity, 

competition, jobs, the environment, 

public health or safety, or State, local, 

or tribal governments or communities.’’ 

Also, as demonstrated by PacifiCorp’s 

July 12, 2012 submittal in this docket, 

EPA’s regional haze FIP action will have 

an adverse effect on the supply and 

distribution of electricity within 

PacifiCorp’s system. Therefore, EPA’s 

determination that Executive Order 

13211 did not apply is incorrect, and 

arbitrary and capricious. 

Moreover, because EPA’s regional 

haze FIP action is a ‘‘significant 

regulatory action,’’ before imposing its 

regional haze FIP EPA must first prepare 

a ‘‘Statement of Energy Effects’’ for the 

Administrator of the Office of 

Information and Regulatory Affairs, 

Office of Management and Budget. Such 

a statement must include a ‘‘detailed 

statement’’ by the agency concerning 

‘‘any adverse effects on energy supply, 

distribution, or use (including a 

shortfall in supply, price increases . . .) 

should the proposal be implemented,’’ 

and ‘‘reasonable alternatives to the 

action with adverse energy effects and 

the expected effects of such alternatives 

on energy supply, distribution, and 

use.’’ Accordingly, based on an analysis 

of the relevant factors, EPA’s regional 

haze FIP is improper because EPA failed 

to conduct the required regulatory 

analysis and failed to prepare the 

required documentation. 

Executive Order 12866, in turn, which 

concerns Regulatory Planning and 

Review, defines a ‘‘significant regulatory 

action’’ as any regulatory action that is 

likely to result in a rule that may: (1) 

Have an annual effect on the economy 

of $100 million or more or adversely 

affect in a material way the economy, a 

sector of the economy, productivity, 

competition, jobs, the environment, 

public health or safety, or State, local, 

or tribal governments or communities.’’ 

Response: EPA disagrees that 

Executive Order 13211 applies to this 

action. Order 13211 is only applicable 

to an agency regulation that is a 

‘‘significant regulatory action’’ under 

Executive Order 12866. Executive Order 

13211(4)(b). Order 13211 also explicitly 

adopts the definitions of ‘‘regulation’’ 

and ‘‘rule’’ as explained in Executive 

Order 12866. Executive Order 

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69There, we indicated that given the number of 

SCR retrofits PacifiCorp had to perform in Wyoming 

and in other states, it might not be affordable for 

PacifiCorp to install two additional SCRs on Jim 

Bridger Units 1 and 2 within the five-year BART 

compliance period. We requested additional 

information from commenters regarding whether 

the affordability provisions of the BART Guidelines 

should be applied to Units 1 and 2. In the 

alternative, we proposed to find that NOX BART for 

Units 1 and 2 was an emission limit of 0.07 lb/

MMBtu (30-day rolling average) based on the 

installation of LNB/SOFA + SCR with a compliance 

deadline of five years. Under this scenario, we 

acknowledged that the cost-effectiveness of LNB/

SOFA + SCR at Units 1 and 2 was within the range 

of what EPA and the State itself had found 

reasonable in other BART determinations. We also 

considered the significant visibility improvement 

demonstrated by the State’s modeling to warrant 

LNB/SOFA + SCR as BART. 

70For example, EO 12866 (Sec. 10, Judicial 

review) explicitly states, ‘‘This Executive order is 

intended only to improve the internal management 

of the Federal Government and does not create any 

right or benefit, substantive or procedural, 

enforceable at law or equity by a party against the 

United States, its agencies or instrumentalities, its 

officers or employees, or any other person.’’ 

13211(4)(a). However, this action does 

not fit within the definition of Executive 

Order 12866, which defines a 

‘‘regulation’’ or ‘‘rule’’ as an ‘‘agency 

statement of general applicability.’’ 

Executive Order 12866(3)(d). Here, 

EPA’s action was individually tailored 

for a limited number of BART eligible 

sources in Wyoming and is not 

generally applicable. Thus this action is 

not governed by Order 12866 and, 

therefore, is also not governed by 

Executive Order 13211. As discussed in 

more detail in Statutory and Executive 

Orders Review section of this document, 

the costs for this action are about $93 

million annually. 

Moreover, as explained in more detail 

elsewhere, EPA took the cost of 

compliance into consideration when 

making BART determinations to ensure 

this rule’s requirements are beneficial 

and not unduly burdensome. The 

commenter is correct that EPA may, in 

its discretion, consider system 

affordability costs beyond the direct 

compliance costs on an individual 

facility in extraordinary circumstances. 

As explained in the Basis for Final 

Action section and elsewhere in the 

proposed and final actions, we proposed 

to approve the State’s BART and 

reasonable progress determinations for 

Jim Bridger Units 1 and 2, but on a 

different basis.69 In response to our 

proposal, we received both supportive 

and adverse comments regarding 

whether the affordability provisions of 

the BART Guidelines should apply to 

Units 1 and 2. As explained in more 

detail in our responses to these 

comments, we agree that PacifiCorp did 

not make a sufficient showing that it 

could not afford to install LNB/SOFA + 

SCR on Units 1 and 2 within the fiveyear compliance period. Nevertheless, 

we also received new information 

regarding the costs of compliance and 

visibility benefits associated with Jim 

Bridger and have revised our cost 

estimates and visibility modeling for all 

four units accordingly. Using this 

revised information, we re-evaluated the 

five BART factors. Ultimately however, 

while we believe that these costs and 

visibility improvements could 

potentially justify LNB/SOFA + SCR as 

BART, because this is a close call and 

because the State has chosen to require 

SCR as a reasonable progress control, we 

believe deference to the State is 

appropriate in this instance. We are 

therefore finalizing our approval of the 

State’s determination to require SCR at 

Jim Bridger Units 1–4, with an emission 

limit of 0.07 lb/MMBtu (30-day rolling 

average), as part of its LTS. We also note 

that, neither the CAA nor the regional 

haze regulations require EPA to 

consider costs beyond an individual 

facility’s direct compliance costs. 42 

U.S.C.A. Section 7491(g)(1), (2); 40 CFR 

51.301. Further, nothing in the Order is 

to be construed to impair or otherwise 

affect the authority granted by law to 

EPA, nor does it create any right or 

benefit enforceable at law.70

Comment: The EPA’s FIP fails to 

account for the significant economic 

impacts on small entities as required by 

the Regulatory Flexibility Act. The 

estimated capital cost alone to install 

SCRs at Laramie River Station only is 

nearly $750,000,000. For Western 

Minnesota and its members the total 

impact would result in an increase in 

wholesale electric rates of twelve 

percent, which includes a ten percent 

increase due to the capital costs for 

installation of the SCRs and an 

additional increase of two percent 

annually for operating expenses. The 

members of Western Minnesota and 

Missouri River Energy Services are 

small governmental units, which must 

be given consideration under the 

Regulatory Flexibility Act. 

Under the Regulatory Flexibility Act, 

EPA is required to analyze the economic 

impact of proposed regulations when 

there is likely to be a significant 

economic impact on a substantial 

number of small entities, and to 

consider regulatory alternatives that will 

achieve the agency’s goal while 

minimizing the burden on small 

entities. The certification that EPA has 

provided with this proposed rule is 

perfunctory at best, and does not seek to 

analyze the actual elements required by 

the Regulatory Flexibility Act. 

The EPA has wholly failed to conduct 

any regulatory flexibility analysis 

pursuant to the Regulatory Flexibility 

Act, which further demonstrates the 

arbitrariness of this proposed FIP. If it 

had, it would acknowledge that the 

Wyoming SIP for NOX provides a 

reasonable alternative that has a far less 

significant economic impact on small 

entities while providing virtually the 

same improvement in visibility. 

Response: EPA disagrees with this 

comment. Courts have interpreted the 

Regulator Flexibility Act to require a 

regulatory flexibility analysis only when 

a substantial number of small entities 

will be subject to the requirements of 

the agency’s action. See, e.g., Mid-Tex 

Elec. Co-op, Inc. v. FERC, 773 F.2d 327, 

342 (D.C. Cir. 1985). The economic 

analysis described in the Regulatory 

Flexibility Act is not required; however, 

if the head of an agency certifies that the 

rule will not have a significant 

economic impact on a significant 

number of small entities. 5 U.S.C. 

605(b). As the commenter noted, such 

certification was made by EPA and 

published in the Federal Register as 

required by the act. No other action is 

required by EPA because the agency is 

not imposing any requirements on small 

entities. Here, only a limited number of 

entities have incurred compliance 

obligations under this action, and none 

of those entities are ‘‘small entities.’’ 

EPA still seeks to minimize the 

impact of its actions have on small 

entities. EPA sought comments 

regarding the economic impact from all 

entities affected by this action and 

carefully considered all relevant 

information. As described elsewhere, 

EPA believes that this action is 

necessary to achieve the objectives of 

the CAA and that the visibility 

improvements justify the costs of this 

rule, as established in the Act and 

implementing regulations. 

Comment: The underlying purpose of 

Executive Order 12866 (Order) is to 

foster a regulatory regime that respects 

the role of local government, recognizes 

that the private sector is the ‘‘best 

engine for economic growth,’’ and 

appreciates the need to develop 

regulations that do not impose 

‘‘unacceptable or unreasonable costs on 

society.’’ Exec. Order No. 12,866, 58 FR 

51735 (Oct. 4, 1993). The Order requires 

agencies that propose a significant 

regulatory action to consider a 

multitude of quantitative and qualitative 

factors during the rulemaking process. 

Id. 

A ‘‘significant regulatory action’’ is 

one in which the resulting rule is likely 

to ‘‘[h]ave an annual effect on the 

economy of $100 million or more or 

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71Results of visitor surveys from 22 studies 

demonstrate that clean air and scenic vistas in 

national parks consistently rank as the top priorities 

of 90 percent or more of visitors. ‘‘National Park 

Service Visitor Values & Perceptions of Clean Air, 

Scenic Views & Dark Night Skies 1988–2011,’’ 

Natural Resource Report NPS/NRSS/ARD/NRR– 

2013/632 (Feb. 2013), pp. 16–23 (including specific 

studies focused on Wyoming’s national parks). 

Additionally, as explained in recent National Park 

Service (NPS) and U.S. Forest Service (USFS) 

reports, the national parks and U.S. Forest Service 

lands are important economic engines for local 

communities and businesses, with visitors 

generating significant economic activity and 

support thousands of jobs. See, ‘‘Economic Benefits 

to Local Communities from National Park 

Visitation, 2011,’’ National Park Service, Natural 

Resource Report NPS/NRSS/ARD/NRR–2013/632 

(Feb. 2013) (NPS 2013 Report); and ‘‘National 

Visitor Use Monitoring Results, National Summary 

Report,’’ USDA Forest Service (May 20, 2013 

update). In 2011, the NPS report indicates that nonlocal visitor spending to the national parks in 

Wyoming was $621 million, creating more than 

9,000 jobs. NPS 2013 Report, p. 26. The Grand 

Teton National Park alone had more than 2.5 

million visitors who spent $463 million which 

created more than 6,000 jobs. NPS 2013 Report, p. 

19. 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs . . . or 

State, local, or tribal governments or 

communities.’’ 58 FR 51735. 

Allow us, by way of example, the 

opportunity to outline the significance 

that the proposed rule will have on one 

of Wyoming’s counties. The Laramie 

River Station (Station), one of the five 

targeted EGUs under the proposed FIP, 

is the largest employer in Platte County. 

These are good paying jobs that include 

health and retirement benefits for the 

Station’s employees. In a rural county 

with 8,800 people, where the average 

annual household income is $46,916, 

there is concern that the use of a control 

regime as proposed in the FIP may make 

operation of the Station substantially 

cost-prohibitive and therefore 

jeopardize some of the best jobs in Platte 

County. Moreover, the retrofitting 

outlined in the proposed rule will likely 

increase the electric rates of some of 

Wyoming’s most vulnerable citizens. 

The Station also provides a significant 

source of revenue for Platte County. In 

the 2012 Fiscal Year, the Station 

provided over $3.7 million in state 

assessed taxes. This is a significant 

source of revenue for Platte County, 

revenue that is needed to sustain 

essential government functions, such as 

operation of the county jail, maintaining 

county roads and bridges, and county 

health services. Platte County is but one 

example. Each of the other potentially 

affected counties (Converse, Lincoln, 

and Campbell) share those three 

principal concerns: (1) The targeted 

EGUs provide a significant source of 

employment to county residents, (2) 

volatility of electric rates on some of 

Wyoming’s most vulnerable citizens, 

and (3) the EGUs provide a significant 

source of revenue in order to sustain 

essential county services. 

For these reasons, Wyoming’s County 

Commissioners cannot accept EPA’s 

conclusion that the proposed rule is not 

a significant regulatory action. 

Accordingly, because the proposed rule 

is a significant regulatory action, it 

should be subject to review in 

accordance with Executive Order 12866 

and, by extension, Executive Order 

13563. 

Response: Executive Order 13563 is 

supplemental to and reaffirms the 

principles, structures, and definitions 

governing contemporary regulatory 

review that were established in 

Executive Order 12866 of September 30, 

1993. In general, the Order seeks to 

ensure the regulatory process is based 

on the best available science; allows for 

public participation and an open 

exchange of ideas; promotes 

predictability and reduces uncertainty; 

identifies and uses the best, most 

innovative, and least burdensome tools 

for achieving regulatory ends; and takes 

into account benefits and costs, both 

quantitative and qualitative. However, 

nothing in the Order shall be construed 

to impair or otherwise affect the 

authority granted by law to the Agency. 

In our review process the cost of 

compliance was one of the elements 

addressed to ensure that the 

requirements to achieve the goals stated 

in the CAA were beneficial and not 

burdensome to the regulated entity. 

Please refer elsewhere in our response 

to comments (e.g., Introduction and 

BART sections) for a detailed analysis of 

the elements required by the CAA and 

RHR for BART determinations. 

Comment: EPA, through this 

proposed rule, fails to recognize, or even 

to make an effort to understand, the 

burden imposed upon Wyoming and its 

local governmental entities. If it had 

done so, it would have acknowledged 

the fundamental value and attainable 

progress derived from Wyoming’s 

regional haze SIP. Instead, what EPA 

proposes is a disingenuous and poorly 

crafted rule that ignores fundamental 

realities existing in the counties of 

Wyoming, that they are rural, 

traditionally low-income, and the 

economic drivers are typically limited 

to tourism, agriculture, or industry. As 

such, the proposed rule would create a 

disproportionate impact on those 

communities playing host to industry. 

‘‘Not in my backyard’’ is simply not 

an option for many rural communities. 

It therefore poses a fundamental 

question of equity, a concern reiterated 

in Executive Order 13563. Executive 

Order No. 13,563, 76 FR 3821 (Jan. 18, 

2011). Concerns regarding equity 

require the EPA to consider who is 

bearing the cost of the proposed rule. 

The bottom line is that increased energy 

costs that will result from the proposed 

FIP will disproportionately hurt our 

local economies. 

Additional comments argue that EPA 

is required to seek views of appropriate 

local officials’ before imposing 

regulatory requirements that might 

significantly or uniquely affect a 

particular governmental entity. EPA 

must then seek to minimize any burdens 

that significantly or uniquely affect the 

local governmental entity in a manner 

that is consistent with achieving the 

underlying regulatory objective. 

Response: EPA disagrees with this 

comment. Executive Order 13563 is 

supplemental to and reaffirms the 

principles, structures, and definitions 

governing contemporary regulatory 

review that were established in 

Executive Order 12866. Executive Order 

13563 Section 1(b). In general, the Order 

seeks to ensure the regulatory process is 

based on the best available science; 

allows for public participation and an 

open exchange of ideas; promotes 

predictability and reduces uncertainty; 

identifies and uses the best, most 

innovative, and least burdensome tools 

for achieving regulatory ends; and takes 

into account benefits and costs, both 

quantitative and qualitative. However, 

nothing in the Order shall be construed 

to impair or otherwise affect the 

authority granted by law to EPA, nor 

does it create any right or benefit 

enforceable at law. Executive Order 

13563 Section 7(b), (d). Each BART 

source was examined and the cost of 

compliance was one of the factors 

addressed to ensure the rule’s 

requirements are beneficial and not 

unduly burdensome to the regulated 

entities. We also note the following: (1) 

There will likely be beneficial effects on 

tourism due to improved visibility at the 

Class I areas; 71 (2) emission controls can 

be installed over a period of time; and 

(3) in this final action we are mostly 

approving the provisions of the State’s 

SIP. Moreover, as explained above, 

courts have interpreted the Regulatory 

Flexibility Act to require a regulatory 

flexibility analysis only when a 

substantial number of small entities will 

be subject to the requirements of the 

agency’s action. While EPA has not 

made a determination that a substantial 

number of small entities will be subject 

to the requirements of this final action, 

we nevertheless seek to minimize the 

impact our actions have on small 

entities. EPA sought comments 

regarding the economic impact from all 

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entities affected by this action and 

carefully considered all relevant 

information. As described elsewhere, 

EPA believes that this action is 

necessary to achieve the objectives of 

the CAA and that the visibility 

improvements justify the costs of this 

rule, as established in the Act and 

implementing regulations. Please refer 

elsewhere for a detailed analysis of the 

elements required by our regulations for 

BART determinations. 

Comment: In imposing these 

additional costs the proposed action 

will unnecessarily impact power 

generation in Wyoming and lead 

ultimately to increased utility costs for 

Wyoming residents. Along these lines, 

we believe the proposed action fails to 

comply with Executive Order 13132. 

The notice of proposed action states: 

‘‘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.’’ The notice switches that 

standard by concluding: ‘‘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.’’ (78 FR 34790). 

The conclusion that Executive Order 

13132 does not apply to this action 

appears inconsistent with the standard 

of the Order. The regulation will impose 

substantial direct compliance cost on 

local governments and there is no 

provision for funding those costs by the 

federal government. The Wyoming 

Municipal Power Agency (WMPA) is a 

joint powers board created by eight 

Wyoming municipalities to generate and 

transmit electricity for the residents of 

those municipalities. Through a 

partnership, WMPA and thus each of 

those municipalities, own a substantial 

interest in the Laramie River Station. 

WMPA estimates that the EPA’s 

proposal would cost an estimated $600 

million for the Laramie River Station. 

When costs are imposed upon a facility, 

owners of that facility must initially 

bear those costs. Whether the generating 

facility is owned 100% by a single 

municipality, or shared through a 

partnership or cooperative, as a result of 

that ownership interest a substantial 

direct compliance cost is imposed on 

the municipal owners. 

Response: EPA disagrees that 

Executive Order 13132 applies to this 

action. The Order only applies to agency 

actions that fit within the Order’s 

definition of ‘‘policies that have 

federalism implications.’’ The Order 

defines such actions as rules ‘‘that have 

substantial direct effects on 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.’’ Executive Order 

13132 Section (1)(a). In contrast, this 

action merely addresses Wyoming’s 

existing obligations under the CAA and 

thus does not impose any additional 

burdens beyond that which the law 

already requires. Because this rule does 

not fit within the definition of ‘‘policies 

that have federalism implications,’’ the 

Order does not apply to this action. 

Moreover, the additional elements of 

the standard urged by the commenter do 

not apply to this action. EPA must 

consult a state or provide funding only 

if a regulation that has federalism 

implications (1) imposes substantial 

direct compliance costs on state and 

local governments, and (2) is not 

required by statute. Executive Order 

13132 Section (6)(b). First, as the 

commenter noted, the regulation 

imposes compliance costs on Laramie 

River Station, not directly on state or 

local governments. Municipalities may 

possibly be indirectly impacted because 

of their membership in WMPA, which 

in turn retains a 1.37% ownership 

interest in Laramie River Station 

through a partnership with the Missouri 

Basin Power Project. However, this 

action does not impose any direct 

compliance costs on local governments. 

Second, the CAA requires that states 

promulgate adequate SIPs to achieve the 

CAA’s visibility goals, and further 

requires EPA to promulgate FIPs if a 

state fails to meet its obligations. 42 

U.S.C. 7492(3)(2), Section 7410(c)(1); 

see also WildEarth Guardians v. 

Jackson, No. 11–CV–00001–CMA–MEH, 

2011 WL 4485964 at *6 (D. Colo. Separt 

27, 2011) (finding EPA’s duty to either 

approve a state regional haze SIP or 

promulgate a FIP is nondiscretionary). 

Because this action does not have 

federal implications, does not impose 

direct compliance costs on local 

governments, and is required by statute, 

Executive Order 13132 does not apply 

to this action. 

Comment: EPA did not properly vet 

its proposed FIP against a number of 

requirements detailed throughout 

Presidential Executive Orders and 

within the CAA. Though Presidential 

Executive Orders are not binding by 

law, they foster an open, transparent 

rule-making process. For example, 

Executive Order 12866 states, ‘‘The 

American people deserve a regulatory 

system that works for them, not against 

them: a regulatory system that . . . 

improves the performance of the 

economy without imposing 

unacceptable or unreasonable costs on 

society.’’ Accordingly, the Order 

requires federal agencies, including 

EPA, to develop regulations ‘‘in the 

most cost effective manner’’ and to 

‘‘adopt a regulation only upon a 

reasoned determination that the benefits 

of the intended regulation justify its 

costs.’’ An additional $1.2 billion in 

costs under EPA’s proposal in exchange 

for no perceptible change in visibility 

does not qualify as ‘‘a reasoned 

determination that the benefits of the 

intended regulation justify its costs.’’ 

EPA’s proposed action will result in 

over $170 million annual adverse 

economic impact, well over the $100 

million annual threshold identified in 

Executive Order 12866. EPA failed to 

properly consider material effects its 

proposed action will have on the 

economy, productivity, competition, 

and jobs. By forcing unnecessarily 

expensive technologies, electricity rates 

will rise even further, putting additional 

strain on businesses and millions of 

customers that receive electricity from 

the generating stations in Wyoming. 

Response: EPA disagrees with this 

comment. As explained elsewhere, this 

action does not fit within the definition 

of Executive Order 12866. The Order 

defines a ‘‘regulation’’ or ‘‘rule’’ as an 

‘‘agency statement of general 

applicability.’’ Executive Order 

12866(3)(d). Here, EPA’s action was 

individually tailored for a limited 

number of BART eligible sources in 

Wyoming, and thus is not generally 

applicable and not governed by Order 

12866. Moreover, as explained in more 

detail in the BART section, EPA took 

the cost of compliance into 

consideration when making its BART 

determinations to ensure the rule’s 

requirements are beneficial and not 

unduly burdensome. 

11. Consideration of Existing Controls 

Comment: Several commenters 

asserted that EPA did not properly take 

into account the existing pollution 

control technology in use at the BARTeligible EGUs, as required by CAA 

section 169A(g)(2) and the BART 

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5104 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

Guidelines. These commenters alleged 

that EPA was required to consider 

updated combustion controls, which 

were installed to comply with 

Wyoming’s regional haze SIP, by 

adjusting the baseline emissions rate for 

each facility to account for any 

emissions reductions that have been 

achieved since the 2001–2003 baseline 

period. The commenters suggested that 

had EPA relied on available 2011–2012 

emissions data, which reflect the NOX

reductions achieved by some of these 

newly installed controls, the costeffectiveness values for SNCR and SCR 

would have been higher, while the 

visibility improvement associated with 

SNCR and SCR would have been lower. 

For example, one commenter stated 

that the baseline emission rate for NOX

in 2001–2003 was 0.27 lbs/MMBtu at 

Laramie River, but that the emission rate 

had dropped to 0.19 lb/MMBtu after the 

installation of over-fire air and low NOX

burners. This commenter asserted that, 

had EPA adjusted the baseline to the 

latter emission rate, the average costeffectiveness for SNCR would be 

between $6,967/ton and $7,014/ton, 

while the average cost-effectiveness for 

SCR would be between $8,531/ton and 

$9,048/ton. Based on these values, the 

commenter argued that neither SNCR 

nor SCR is cost-effective and therefore 

both technologies should be eliminated 

as NOX BART for Laramie River. 

Another commenter pointed to other 

EPA regional haze actions where EPA 

adjusted baseline emissions to account 

for recently installed controls, such as 

EPA’s final actions on the Arizona 

regional haze SIP, 77 FR 72512, and 

Montana regional haze FIP, 77 FR 

57864. This commenter argued that 

because EPA had adjusted baseline 

emissions for some Arizona and 

Montana EGUs to account for controls 

recently installed to satisfy consent 

decrees obligations or CAA 

requirements unrelated to regional haze, 

EPA was required to do so for 

Wyoming’s EGUs as well. 

One commenter submitted additional 

comments, after the close of the public 

comment period, in response to the 

decision of the U.S. Court of Appeals for 

the Eighth Circuit in North Dakota v. 

EPA, 730 F.3d 750 (8th Cir. 2013). This 

commenter again asserted that EPA had 

failed to consider the low NOX burners 

and over-fire air the commenter had 

installed at its facilities to comply with 

the Wyoming regional haze SIP. The 

commenter argued that EPA’s alleged 

failure to consider these controls 

violates the holding in North Dakota, 

that ‘‘any existing pollution control 

technology’’ includes all existing 

controls, including those that are 

voluntarily installed by the source. 

Moreover, the commenter explained, the 

low NOX burners and over-fire air at its 

facilities were not voluntary controls 

because they were installed to meet 

CAA requirements, were federally 

enforceable, and were incorporated into 

the Wyoming regional haze SIP. 

A final commenter also submitted late 

comments in response to the decision in 

North Dakota and the previous 

commenter’s letter. This commenter 

argued that the North Dakota decision 

does not require EPA to account for 

existing controls by factoring their 

associated emissions reductions into 

baseline emissions. The commenter 

explained that using a consistent 

baseline prevents certain sources from 

claiming credit for minor emission 

reduction measures taken in the midst 

of the ongoing regional haze planning 

process, thereby making more stringent 

controls appear less beneficial. The 

commenter also explained that the fixed 

baseline period of 2001–2003 allows 

EPA to make ‘‘apples-to-apples’’ 

comparisons of the cost-effectiveness 

and visibility benefits of evaluated 

technologies across all BART sources. 

The commenter pointed out that EPA’s 

method of evaluating combustion 

controls as a BART option, not as part 

of the emission baseline, was identical 

to the approach that Wyoming and the 

sources themselves had taken in their 

own BART analyses. The commenter 

argued that this approach is correct 

because it ensures that the emissions 

reductions associated with existing 

controls installed after the baseline 

period are evaluated in the BART 

analysis. It also factors the cost of such 

controls into the source’s compliance 

costs, rather than assuming that such 

costs are zero simply because they 

already have been incurred. Finally, the 

commenter asserted that even if EPA 

were to adjust the baseline emissions for 

the EGUs in question, SCR would still 

be BART for all of the EGUs. 

Response: One of the statutory factors 

EPA is to consider is ‘‘any existing 

pollution control technology in use at 

the source.’’ 42 U.S.C. 7491(g)(2). The 

CAA does not specify how states or EPA 

must ‘‘take into consideration’’ this 

factor. The BART Guidelines provide 

little additional guidance, stating only 

that ‘‘[f]or emission units subject to a 

BART review, there will often be control 

measures or devices already in place. 

For such emission units, it is important 

to include control options that involve 

improvements to existing controls and 

not to limit the control options only to 

those measures that involve a complete 

replacement of control devices.’’ 40 CFR 

part 51, app. Y, at IV.D.1.6. 

Consequently, we believe that states and 

EPA have considerable discretion in 

how they consider existing controls in 

use at a source, so long as that 

consideration is explained and 

reasonable. Ultimately, states or EPA 

should consider the totality of the 

circumstances (e.g., the purpose of any 

existing controls, when and why they 

were installed, compatibility with other 

control options, enforceability, and 

other pertinent factors) in determining 

how they will evaluate existing controls 

in a BART analysis. 

For example, one way in which a state 

or EPA can consider existing controls, 

as contemplated by the BART 

Guidelines, is by evaluating whether 

additional control options are 

technologically compatible with a 

source’s existing controls, or whether 

the presence of the existing controls 

would render the installation of some 

additional control options infeasible. In 

the case of NOX, the presence of existing 

combustion controls at a source, such as 

low NOX burners or over-fire air, does 

not impact the feasibility of installing 

post-combustion controls, such as SNCR 

or SCR. Consequently, EPA reasonably 

determined in this instance that the 

presence of existing combustion 

controls at several of the BART-eligible 

EGUs would not preclude the 

installation of either SNCR or SCR. 

Pointing to our regional haze actions 

in Arizona and Montana, several of the 

commenters asserted that EPA was 

required to consider existing controls by 

adjusting the baseline emissions of 

several sources to account for 

reductions achieved after the baseline 

period. We disagree. The BART 

Guidelines recommend that baseline 

emissions should be ‘‘based upon actual 

emissions from a baseline period.’’ 40 

CFR part 51, app. Y, at IV.D.4.d.1. While 

the BART Guidelines allow states or 

EPA to adjust baseline emissions to take 

into account projections of ‘‘future 

operating parameters’’ by making such 

assumptions into enforceable limits, id. 

at IV.D.4.d.2, the BART Guidelines are 

silent as to how reductions resulting 

from the post-baseline installation of 

controls should be treated. One way to 

take account of such reductions is to 

update the baseline, as we did in our 

regional haze actions for Arizona and 

Montana. In those rulemakings, we 

determined that updating the baseline 

was appropriate because several sources 

had recently installed combustion 

controls to comply with consent-decree 

obligations and acid-rain requirements, 

while another source had changed its 

coal supply. The fact that these controls 

were installed to comply with other 

CAA requirements heavily informed 

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EPA’s decision to update the sources’ 

baseline emissions. As we explained in 

our Arizona action, however, ‘‘an 

‘updated baseline’ might not be 

appropriate in all instances. For 

instance, if it appeared that controls had 

been installed early in order to avoid a 

more stringent BART determination, it 

would presumably not be appropriate to 

use a baseline representing these new 

controls.’’ 72 FR 72526. 

We believe that this is one such 

instance. First, unlike in Arizona and 

Montana, the sources did not install the 

combustion controls in question to 

comply with other CAA requirements. 

Rather, as stated above in the comment, 

the sources installed the controls to 

comply with Wyoming’s selection of 

BART in its regional haze SIP. This 

distinction is important because, by 

their very nature, baseline emissions 

should be ‘‘a realistic depiction of 

anticipated annual emissions’’ before 

the installation of BART. 40 CFR part 

51, app. Y, at IV.D.4.d. Thus, while 

baseline emissions can take into account 

newly installed controls and in some 

cases future operating parameters, 

baseline emissions still must represent a 

pre-BART scenario so that the costeffectiveness and visibility benefits of 

all potential BART control options can 

be evaluated from a consistent 

benchmark. Indeed, it would be passing 

strange for EPA to update the 

commenters’ baseline emissions to 

incorporate emission reductions that 

they admittedly achieved to comply 

with BART. Doing so would bias EPA’s 

analysis of additional control options by 

giving the commenters credit for 

emissions reductions attributable to 

BART, but treating the costs they 

incurred to achieve those reductions as 

if they had never occurred. 

Second, we note that the Wyoming 

regional haze SIP did not require 

compliance with BART until five years 

after EPA’s approval of the SIP. At the 

time the sources installed the 

combustion controls, EPA had not yet 

acted upon Wyoming’s regional haze 

SIP, and the sources had no way of 

knowing whether EPA would ultimately 

approve or disapprove Wyoming’s 

BART determinations. Thus, it appears 

that the sources’ decision to install the 

combustion controls early may have 

been motivated by an intent to avoid the 

possibility of a more stringent BART 

determination by EPA under the theory 

now advanced in the comment. To be 

consistent with our statements in the 

Arizona regional haze action, we believe 

that it would have been inappropriate 

for EPA to have ‘‘taken into 

consideration’’ the newly installed 

combustion controls at the commenters’ 

facilities by updating the baseline in 

this case. 

Nonetheless, EPA recognizes that we 

must ‘‘take into consideration’’ all 

existing controls to comply with the 

CAA, and have therefore taken the 

sources’ existing combustion controls 

into consideration in other ways. For 

example, in addition to considering 

whether the source’s existing 

combustion controls were compatible 

with the installation of post-combustion 

controls, we also used the source’s 

current NOX emission rates when we 

evaluated the size, design, and reagent/ 

catalyst cost of SNCR and SCR. For 

example, in the case of Laramie River, 

we did not use the baseline emission 

rate of 0.27 lbs/MMBtu, but rather the 

current emission rate of 0.19 lb/MMBtu 

that appropriately reflects the 

installation of over-fire air and low NOX

burners. Due to the lower NOX emission 

rate, the size of the SNCR and SCR 

systems and the amount of reagent/

catalyst necessary to operate them are 

lower than if we had simply assumed 

the baseline emission rate. 

Moreover, we do not believe that our 

action is inconsistent with the Eighth 

Circuit’s decision in North Dakota. In 

our regional haze action for North 

Dakota, we refused to consider the 

DryFiningTM control technology in use 

at Coal Creek Station when we 

promulgated a FIP. We argued to the 

court that the CAA did not require states 

or EPA to consider controls that were 

voluntarily installed after the baseline 

period. The court rejected this position, 

holding that ‘‘EPA’s refusal to consider 

the existing pollution control 

technology in use at the Coal Creek 

Station because it had been voluntarily 

installed was arbitrary and capricious.’’ 

North Dakota, 2013 U.S. App. LEXIS 

19442, at*30. The court explained that 

‘‘any existing pollution control 

technology’’ included even voluntarily 

installed controls. However, the court 

did not opine as to how existing controls 

must be considered. Here, EPA 

reasonably considered the existing 

controls at the BART-eligible sources in 

the several ways described above. North 

Dakota does not require us to ‘‘take into 

consideration’’ existing controls by 

adjusting baseline emissions, which 

would have been inappropriate in this 

instance. 

Finally, while we acknowledge the 

supportive comments from the final 

commenter on this issue and agree with 

many of the points that were made, we 

decline to require SCR at all of the 

BART-eligible EGUs, for reasons 

explained elsewhere in this document. 

12. Consent Decree 

Comment: As it had on other SIPs, 

EPA neglected to act on Wyoming’s SIP, 

and as a result exposed itself to liability 

for violating Section 110(k) of the CAA. 

See 42 U.S.C. 7410(k)(2), (3) (setting 

deadlines for EPA action on SIPs). 

Wyoming could have sued EPA for 

failing to take action on Wyoming’s SIP, 

but in the spirit of cooperation, elected 

not to. Instead, special interest groups 

sued EPA for its failure to comply with 

the Act. See Compl., WildEarth 

Guardians v. Jackson, No. 1:11-cv00001–CMA–MEH (D. Colo. Jan. 2, 

2011). Wyoming did not participate in 

this litigation for two reasons: First, 

Wyoming was not aware of the litigation 

until EPA published the proposed 

consent decree, 76 FR 34983 (June 15, 

2011); and, second, EPA has repeatedly 

opposed state attempts to participate in 

litigation that impacts the processing of 

SIPs, see, e.g., Def. Opp. to North 

Dakota’s Motion to Intervene, WildEarth 

Guardians v. Jackson, No.4:09–CV– 

02453–CW (N.D. Cal. Oct. 20, 2011). 

The special interest groups’ litigation, 

in turn, has driven EPA’s approach to 

Wyoming’s SIP. The litigation has 

established arbitrary deadlines for EPA 

to act on Wyoming’s SIP, which EPA 

and the special interest groups have 

repeatedly extended for their 

convenience. Not once has EPA 

consulted the State on these deadlines. 

More troubling, through settlement of 

that litigation, EPA has committed to 

particular courses of action on 

Wyoming’s SIP. EPA has cut Wyoming 

out of the cooperative federalism 

Congress intended to guide the regional 

haze program. 

This dubious approach to 

implementing the CAA harms states. 

The unprecedented influence the 

special interest groups have exerted 

over EPA’s treatment of Wyoming’s SIP, 

coupled with EPA’s effort to conceal its 

communications with those groups, lead 

a reasonable observer to seriously 

question the objectivity of EPA’s 

proposed action on Wyoming’s SIP. 

The commenter also asserted that the 

EPA let sue-and-settle tactics pervert 

what is typically a cooperative process. 

Nongovernmental groups should not be 

allowed to coerce an agency into setting 

policy as a result of litigation. Wyoming 

considers this an attack on states’ rights, 

which does nothing to further the 

partnership between EPA and 

Wyoming, especially when Wyoming 

can’t participate in those discussions. 

Response: We disagree with 

commenter’s assertions. The Act 

provides citizens with the right to sue 

EPA when EPA fails to meet a statutory 

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5106 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

72 January 2, 2011 a Complaint was filed against 

EPA in the federal district court for the District of 

Colorado seeking declaratory and injunctive relief 

under the Clean Air Act due to EPA’s failure to 

meet regulatory and statutory deadlines for the 

regional haze implementation plan. See WildEarth 

Guardians v. Jackson, Case No. 11–cv–0001–CMA– 

MEH (D. Colo.). 

73The EPA resolved this complaint by means of 

a settlement agreement that was memorialized in a 

Consent Decree that was entered by the Court on 

June 6, 2011 (the ‘‘Consent Decree’’). 

74EPA routinely notifies the states of these 

extensions. For example, on December 11, 2012, 

Region 8 Air Program Director Carl Daly called 

Wyoming DEQ’s Steve Dietrich and his staff, to let 

them know the Agency had submitted a motion to 

the Court to re-propose the 309(g) rule. Mr. Daly 

also contacted Mr. Dietrich on March 26, 2013 to 

let the State know EPA was working on further 

extensions, as the Agency needed additional time 

to consult with our headquarters offices. 

deadline, 42 U.S.C. 7604(a)(2), and 

courts have the authority to establish a 

remedy that sets new deadlines and 

compels EPA to do what Congress 

required. Id. Section 7604(a). When EPA 

is confronted with such suits, it is 

reasonable and proper for EPA, working 

with the Department of Justice, to 

decide that it is in the public interest, 

and a more efficient use of executive 

and judicial branch resources, to settle 

such cases rather than litigate them. 

Congress recognized that EPA has 

authority to settle cases, and directed 

EPA to provide public notice and an 

opportunity to comment on proposed 

consent decrees before finalizing them. 

Id. Section 7413(g). 

As explained in the Introduction 

section of this document, the consent 

decree of which the commenter 

complains was the result of a citizen 

suit that sought to compel EPA to 

approve SIPs or promulgate FIPs to meet 

long overdue regional haze 

requirements.72 The State of Wyoming 

did not submit its regional haze 

implementation plan in a timely fashion 

as required by the CAA and EPA’s 

regulations. Facing substantial legal 

risk, EPA reasonably negotiated a 

settlement resulting in a consent decree 

that set new deadlines for EPA to take 

actions required by the Act.73 The 

Consent Decree was published in the 

Federal Register as is required under 

the CAA section 113(g) and provided 30 

days for public comment. See 76 FR 

34983 (June 6, 2011). For Wyoming, 

EPA’s obligations to fully approve SIPs 

or promulgate a FIP were now due six 

years after the original 2007 deadline for 

the submission of regional haze SIPs. 

The consent decree was also subject to 

district court review before its entry. 

Neither the commenters nor any other 

party objected to the deadlines 

established for EPA’s action on the 

Wyoming regional haze SIP. The United 

States District Court for Colorado found 

the terms of the consent decree 

reasonable. 

The commenter’s argument that EPA 

used these consent decree deadlines and 

‘‘has committed to particular courses of 

action on Wyoming’s SIP’’ with regard 

to the Final Rule is without merit. The 

consent decree did not limit or change 

EPA’s substantive rulemaking authority 

or discretion in any way. Rather, the 

consent decree specifically permitted 

EPA to satisfy its obligations either by 

approving the States’ regional haze SIPs 

or by promulgating a FIP. EPA also 

provided more than 70 days from the 

date of publication in the Federal 

Register for interested parties to submit 

comments on the proposed rule, longer 

than the 30-day public comment period 

required by the Act. 42 U.S.C. 7607(h). 

EPA obtained several extensions of the 

consent decree deadline for Wyoming to 

provide the Agency with adequate time 

to conduct the rulemaking.74 For all 

these reasons, neither the consent 

decree nor the deadlines it imposed 

rendered EPA’s Final Rule arbitrary, 

capricious, or contrary to law. 

Finally, EPA did not rely on 

information that was not in the docket 

for this rule. Therefore, contrary to 

commenter’s assertions, all information 

relied upon has been disclosed. 

Comment: EPA quickly entered into a 

settlement agreement to resolve the 

special interest groups’ litigation, rather 

than defend its actions and honor 

Wyoming’s patience with EPA’s 

inaction. In settling the litigation, EPA 

agreed to take final action on 

Wyoming’s SIP by April 15, 2012. 

Consent Decree, WildEarth Guardians v. 

Jackson, No. 1: 11–cv–00001–CMA– 

MEH, at 4, ’1]6 (D. Colo. Separt 27, 

2011) (WildEarth Guardians). 

Recognizing that it still could not meet 

its statutory obligation to act on 

Wyoming’s SIP, EPA persuaded the 

special interest groups to extend that 

deadline thirty days to May 15, 2012. 

Stip. to Extend Four Deadlines in 

Consent Decree at 3, ∼ 6, WildEarth 

Guardians, (D. Colo. Jan. 10, 2012). 

On June 2, 2012, eighteen months 

after Wyoming submitted its SIP, EPA 

proposed to partially approve and 

partially disapprove the SIP. 77 FR 

33022. But, as a result of EPA’s 

unlawfully delayed action, Wyoming’s 

SIP became complete by operation of 

law. See 42 U.S.C. 7410(k)(l)(B). 

Accordingly, EPA cannot now propose 

to disapprove Wyoming’s SIP on the 

grounds that it lacks information. To do 

otherwise is to render Section 

110(k)(l)(B) meaningless. 

Response: EPA disagrees with this 

comment. First, the commenter offers no 

grounds on which EPA could have 

defended the cited litigation, which 

involved mandatory statutory deadlines 

under the Act. 

Second, EPA disagrees with the 

commenter’s interpretation of CAA 

section 110(k)(l)(B). Under the CAA, 

EPA’s SIP review is a two-step process. 

See CAA Section 110(k). First, within 

six months of a SIP submission, EPA 

must make a threshold ‘‘completeness 

determination’’ to determine whether 

the SIP contains certain ‘‘minimum 

criteria’’ designated by EPA as ‘‘the 

information necessary to . . . determine 

whether the plan submission complies 

with the provisions of [the CAA].’’ See 

id. Section 110(k)(1)(A), (B). These 

minimum criteria are listed in 

Appendix V to 40 CFR. Part 51 and 

include a relatively short list of eight 

‘‘Administrative Materials’’ and nine 

‘‘Technical Support’’ requirements, 

such as evidence that the state properly 

adopted the SIP and technical 

demonstrations that allow EPA to 

evaluate compliance with the 

substantive requirements of the CAA. 

See 40 CFR. part 51, App. V. If EPA fails 

to make the completeness determination 

within six months, the SIP is deemed 

complete by operation of law. See CAA 

Section 110(k)(1)(C). 

Importantly, however, a 

determination of completeness, either 

by EPA or by operation of law, does not 

mean that the SIP has been approved as 

compliant with the substantive 

requirements of the CAA. Indeed, 

Appendix V does not include any 

substantive requirements, such as the 

requirement that regional haze SIPs 

include a five-factor BART analysis. 

These requirements are included 

elsewhere in the CAA, the Haze Rule, 

and the BART Guidelines. 

Instead, EPA evaluates SIPs for 

compliance with the substantive 

requirements in the second step of 

EPA’s review, which EPA must 

complete within one year after the SIP 

is determined to be complete by EPA or 

deemed complete by operation of law. 

See CAA Section 110(k)(2), (3), & (l) 

(providing a one-year deadline by which 

EPA must determine whether the SIP 

‘‘meets all of the applicable 

requirements’’ or ‘‘interferes with any 

applicable requirement’’ of the Act); see 

also NRDC v. Browner, 57 F.3d 1122, 

1126 (D.C. Cir. 1995) (‘‘Under the twostage procedure established in [section] 

110(k), EPA first makes an essentially 

ministerial finding of completeness, a 

process taking at most six months. By 

contrast, the plan approval process may 

take up to twelve months due to the 

more extensive technical analyses 

necessary to ensure that the SIP meets 

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75Additionally, the CAA defines the term ‘‘as 

expeditiously as practicable’’ to mean ‘‘as 

expeditiously as practicable but in no event later 

than five years after the date of approval of a plan 

revision under this section (or the date of 

promulgation of such a plan revision in the case of 

action by the Administrator under section 110(c) 

[42 USCS Section 7410(c)] for purposes of this 

section).’’ 42 U.S.C. 7491(g)(4). 

the Act’s substantive requirements.’’ 

(emphasis added)). Accordingly, a 

completeness determination in Step 1 

does not deprive EPA of authority to 

disapprove a SIP in Step 2 for failure to 

comply with substantive requirements 

of the CAA, the Haze Rule, and the 

BART Guidelines. Instead, a 

completeness determination merely 

triggers EPA’s duty to evaluate the 

substance of a SIP in the first instance 

and either approve or disapprove the 

SIP as necessary within one year. As 

explained above, EPA has authority to 

substantively review states’ five-factor 

BART analyses in Step 2, and must 

disapprove a SIP if its analysis fails to 

comply with the requirements of the 

CAA, the Haze Rule, or the BART 

Guidelines. See Oklahoma, 723 F.3d at 

1207–10. Thus, the comment is 

incorrect in stating that EPA’s action 

here renders section 110(k)(1)(B) 

meaningless. 

Moreover, courts have repeatedly 

stated that EPA does not lose its 

statutory authority to act under the CAA 

for a failure to meet its statutory 

deadline and that the proper remedy in 

the case of delay is for a party to seek 

an order to compel action. Oklahoma v. 

EPA., 723 F.3d 1201, 1224 (10th Cir. 

2013) (explaining that although the CAA 

‘‘undoubtedly requires that the EPA 

promulgate a FIP within two years, it 

does not stand to reason that it loses its 

ability to do so after this two-year 

period expires’’); Montana Sulphur & 

Chem. Co. v. EPA., 666 F.3d 1174, 1190 

(9th Cir. 2012) cert. denied, 133 S. Ct. 

409, (2012) (explaining that although 

CAA has an ‘‘explicit deadline . . . it 

does not follow that the agency loses 

authority to act if it fails to meet that 

deadline’’); Gen. Motors Corp. v. United 

States, 496 U.S. 530, 541 (1990) 

(holding EPA does not lose authority 

under CAA because ‘‘other statutory 

remedies are available when EPA delays 

action on a SIP revision’’); see also 

Brock v. Pierce Cnty., 476 U.S. 253, 260 

(1986) (holding that when ‘‘there are 

less drastic remedies available for 

failure to meet a statutory deadline . . . 

courts should not assume that Congress 

intended the agency to lose its power to 

act’’). 

Comment: Two months after the 

period for commenting on EPA’s 2012 

proposal closed, EPA and the special 

interest groups again modified the 

consent decree to allow EPA additional 

time to take action on Wyoming’s SIP. 

See Stip. To Extend Deadline in Consent 

Decree., WildEarth Guardians (D. Colo. 

Oct. 3, 2012). Then, two months after 

extending the deadline for action on 

Wyoming’s SIP, EPA asked the court to 

again extend EPA’s deadline, this time 

until September 27, 2013. Def. 

Unopposed Mot. To Modify Two 

Deadlines in Consent Decree, at 1, 

WildEarth Guardians (Dec. 10, 2012). 

As grounds for the request, EPA cited 

the special interest groups’ comments, 

which EPA asserted ‘‘necessitate[d] reproposal of the rule.’’ Id. at 3–4. The 

court, in turn, granted EPA’s request. 

Order To Modify Consent Decree, 

WildEarth Guardians (Dec. 13, 2012). 

Even after extending its deadline to take 

action on Wyoming’s SIP three times, 

EPA still needed more time. So, on 

March 25, 2013, EPA and the special 

interest groups again agreed to extend 

EPA’s deadline for action on Wyoming’s 

SIP. Stip. To Extend Deadlines in 

Consent Decree, WildEarth Guardians 

(March 25, 2013) (extending deadline 

until Nov. 21, 2013). Seemingly as a 

condition for obtaining the special 

interests groups’ consent to the 

extension, EPA ostensibly agreed to a 

timetable for Wyoming sources to install 

emission controls faster than what 

Wyoming proposed. Compare id. at 2, 

∼ 6 (‘‘EPA will propose to determine, for 

each source subject to BART, the period 

of time for BART compliance that is as 

expeditious as practicable’’), with 78 FR 

34778 (‘‘We propose that PacifiCorp 

meet our proposed emission limit . . . 

as expeditiously as practicable, but no 

later than five years after EPA finalizes 

action’’). Had Wyoming known when 

EPA proposed the consent decree in 

2011 that EPA would commit to a 

particular course action on Wyoming’s 

SIP, rather than just a date for taking 

some unspecified action, Wyoming 

would have sought to intervene in the 

litigation. 

Response: EPA disagrees that it 

committed to any particular course of 

action in the Consent Decree. The 

Consent Decree only specified a 

timetable for EPA to promulgate rules 

consistent with its statutory obligations 

under the CAA, but did not commit the 

EPA to any particular course of action 

not already required by law. In fact, the 

Consent Decree specifically states: 

‘‘Nothing in this Consent Decree shall 

be construed to limit or modify any 

discretion accorded EPA by the CAA or 

by general principles of administrative 

law in taking the actions which are the 

subject of this Consent Decree, 

including the discretion to alter, amend, 

or revise any final actions contemplated 

by this Consent Decree.’’ 

We disagree with the commenter’s 

allegations that EPA agreed in the 

Consent Decree to a timetable for 

Wyoming sources to install BART 

controls faster than what Wyoming 

proposed in its SIP. Paragraph 6 of the 

Stipulation To Extend Deadlines in 

Consent Decree, WildEarth Guardians 

(March 25, 2013) specifies that: 

By May 23, 2013, EPA shall sign a notice 

of re-proposed rulemaking in which it 

proposes approval of a SIP, promulgation of 

a FIP, partial approval of a SIP and 

promulgation of a partial FIP, or approval of 

a SIP or promulgation of a FIP in the 

alternative, for the State of Wyoming, to meet 

the regional haze implementation plan 

requirements that were due by December 17, 

2007, under 40 CFR 51.309(g). In its reproposal, EPA will propose to determine, for 

each source subject to BART, the period of 

time for BART compliance that is as 

expeditious as practicable, as required by 42 

U.S.C. Section 7491. (emphasis added). 

Commenter neglects to include the 

last phrase in this provision in its 

comment—‘‘as required by 42 U.S.C. 

Section 7491.’’ The Consent Decree 

required EPA to meet that CAA 

requirement.75 Therefore, the Consent 

Decree mirrors and is consistent with 

the CAA BART requirements. 

Finally, we are acting consistently 

with the Act and the RHR, as we discuss 

in detail elsewhere throughout this final 

action. 

13. Monitoring, Recordkeeping and 

Reporting 

Comment: EPA proposed a FIP for all 

monitoring, recordkeeping, and 

reporting requirements related to BART 

and reasonable progress sources for 

which there is a SIP or FIP emissions 

limit. EPA notes that the State’s 

monitoring, recordkeeping, and 

reporting language in their SIP includes 

references to WAQSR chapters that EPA 

has not approved as part of the SIP and 

erroneously concludes that this means 

Wyoming’s requirements are not 

federally enforceable. 

Wyoming does not concur with EPA’s 

findings. The monitoring, recordkeeping 

and reporting language in the State’s 

regional haze SIP is taken directly from 

air quality permits issued under the SIPapproved permitting provisions in 

Chapter 6, Section 2 of the WAQSR, and 

are therefore federally enforceable. See 

40 CFR 52.2620(c)(1). When drafting the 

monitoring, recordkeeping, and 

reporting requirements, the State 

incorporated the requirements of 40 

CFR part 60 for trona facilities and for 

EGUs. Specifically, 40 CFR part 60 

subparts D and Da were incorporated 

into the monitoring conditions for each 

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5108 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

76 Guidance for Estimating Natural Visibility 

Conditions Under the Regional Haze Rule, 

Document No. EPA–R09–OAR–2012–0345–0003– 

B9, U.S. Environmental Protection Agency, 

September 2003. http://www.epa.gov/ttncaaa1/t1/

memoranda/rh_envcurhr_gd.pdf, page 1–1: 

‘‘Natural visibility conditions represent the longterm degree of visibility that is estimated to exist 

in a given mandatory Federal Class I area in the 

absence of human-caused impairment. It is 

recognized that natural visibility conditions are not 

constant, but rather they vary with changing natural 

processes (e.g., windblown dust, fire, volcanic 

activity, biogenic emissions). Specific natural 

events can lead to high short-term concentrations of 

particulate matter and its precursors. However, for 

the purpose of this guidance and implementation of 

the regional haze program, natural visibility 

conditions represents a long-term average condition 

analogous to the 5-year average best- and worst-day 

conditions that are tracked under the regional haze 

program.’’ 

77 Ibid., pages 3–1 to 3–4. 

78 78 FR at 34767 (‘‘Table 28 also shows that 

Wyoming is not meeting the URP to meet natural 

visibility conditions by 2064. In this case, 40 CFR 

51.308(d)(1)(ii) requires the State to demonstrate, 

based on the four factors in 51.308(d)(1)(i)(A), that 

the RPGs established in this SIP are reasonable for 

this planning period and that achieving the URP in 

this planning period is not reasonable. In its 

demonstration, the State cited many reasons why 

meeting the URP was not reasonable, including the 

following. First, emissions from natural sources 

greatly affect the State’s ability to meet the 2018 

URP. As discussed earlier, WEP data shows that 

emissions of OC, EC, PM2.5, and PM10 come mainly 

from natural or non-anthropogenic sources, such as 

natural wildfire and windblown dust.’’) 

BART permit. In the case of EGUs, by 

relying upon subpart D and Da, the State 

is also incorporating the requirements of 

40 CFR part 75, since the monitoring 

provisions of subpart Da refer back to 

the continuous emissions monitor 

requirements under the Acid Rain 

Program codified in 40 CFR part 75. 

While Wyoming allows for data 

substitution using the methodology 

prescribed in 40 CFR part 75, this is 

only applicable to annual emissions to 

account for periods when the 

continuous emissions monitor is down 

and the emissions unit continues to 

operate. Substituting data for these 

operating periods is more conservative 

than removing them altogether. EPA 

asserts that there are numerous 

clarifications and rewording needed; 

however, these monitoring, 

recordkeeping, and reporting 

requirements are currently in effect for 

PacifiCorp and Basin Electric units, and 

the companies are able to demonstrate 

compliance using them. Furthermore, 

the recordkeeping and reporting 

requirements contained in Chapter 5, 

Section 2 of the WAQSR are modeled 

after 40 CFR part 60, as these provisions 

are delegated to the State by EPA. See 

40 CFR 60.4(c). While WAQSR Chapter 

5, Section 2 is not part of Wyoming’s 

SIP, the requirements therein are 

analogous to the federal New Source 

Performance Standards requirements 

and are made federally enforceable 

through incorporation by a Chapter 6, 

Section 2 BART permit and EPA’s 

delegation to Wyoming. 

Since these monitoring, 

recordkeeping, and reporting 

requirements are contained in federally 

enforceable permits and the affected 

companies are already able to 

demonstrate compliance with the BART 

emissions limits using them, Wyoming 

concludes that it did include 

appropriate and adequate monitoring, 

recordkeeping, and reporting 

requirements in the SIP. 

Response: EPA disagrees with this 

comment. As discussed above in this 

section, 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. The 

regulations require that the states ‘‘must 

submit an implementation plan 

containing emission limitations 

representing BART.’’ 40 CPR 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. CAA section 110(a)(2)(A) 

also requires that SIPs shall ‘‘include 

enforceable emission limitations . . . as 

may be necessary or appropriate to meet 

the applicable requirements of [the 

Act].’’ 

Therefore, EPA disagrees that the use 

of BART permits to implement the 

monitoring, recordkeeping, and 

reporting necessary to ensure 

compliance with BART emission 

limitations is adequate under the CAA. 

In addition, in response to another 

comment, we are removing the 

requirements for annual emission limits 

for BART and reasonable progress 

sources. (See section IV.C.3 of this 

rulemaking). Thus, the point raised by 

the commenter pertaining to data 

substitution no longer applies to our 

final action. 

B. Modeling 

1. General Comments 

Comment: One commenter stated that 

EPA must re-evaluate its method for 

assessing visibility impacts from 

wildfires or states will never be able to 

achieve natural background goals. The 

commenter went on to say that EPA 

should (1) eliminate the impacts from 

fire from the annual contribution to the 

deciview analysis or (2) properly 

incorporate it into the natural 

background equation to establish a glide 

path states can achieve. The commenter 

provided graphical data from the 

Interagency Monitoring of Protected 

Visual Environments (IMPROVE) 

network to show the contributions to 

light extinction from organic carbon, 

elemental carbon, and nitrate. 

Response: EPA disagrees that we must 

re-evaluate our methods in this action. 

However, EPA agrees that wildfires can 

be an important source of visibility 

impairment, especially in the western 

states during the summer wildfire 

season. EPA recognized that variability 

in natural sources of visibility 

impairment causes variability in natural 

haze levels as described in its 

‘‘Guidance for Estimating Natural 

Visibility Conditions Under the 

Regional Haze Rule.’’ 76 The preamble to 

the BART guidelines (70 FR 39124) 

describes an approach used to measure 

progress toward natural visibility in 

Mandatory Class I areas that includes a 

URP toward natural conditions for the 

20 percent worst days and no 

degradation of visibility on the 20 

percent best days. The use of the 20 

percent worst natural conditions days in 

the calculation of the URP takes into 

consideration visibility impairment 

from wild fires, windblown dust and 

other natural sources of haze. The 

‘‘Guidance for Estimating Natural 

Visibility’’ also discusses the use of the 

20 percent best days and the 20 percent 

worst days estimates of natural 

visibility, provides for revisions to these 

estimates as better data becomes 

available, and discusses possible 

approaches for refining natural 

conditions estimates.77 The commenter 

does not identify any way in which 

EPA’s action was inconsistent with this 

guidance or the RHR. 

Comment: At the hearing, Governor 

Mead and representatives of Wyoming, 

as well as industry representatives, 

argued that worsening haze has been 

caused by wildfires. 

Response: We acknowledge the 

commenter’s points on wildfires,78 and 

that they can be an important source of 

visibility impairment, especially in the 

western states during the summer 

wildfire season. As discussed in more 

detail above and in our proposed notice, 

EPA recognizes that variability in 

natural sources of visibility impairment 

cause variability in natural haze levels 

and provided approaches to address this 

in the preamble to the BART guidelines 

(70 FR 39124). However, while we 

acknowledge that wildfires contribute to 

regional haze, the BART CALPUFF 

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Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 5109 

79 40 CFR 39170. 

modeling has demonstrated that 

Wyoming’s BART sources are also 

significant contributors to regional haze. 

Comment: Although the various 

BART application analyses conducted 

by Wyoming for PacifiCorp’s BART 

units note that Wyoming conducted a 

‘‘comprehensive visibility analysis 

covering all three visibility impairing 

pollutants,’’ the analyses also state: 

‘‘While visibility impacts were 

addressed in a cumulative analysis of all 

three pollutants, Post-Control Scenario 

B is directly comparable to Post-Control 

Scenario A as the only difference is 

directly attributable to the installation of 

SCR. Subtracting the modeled values 

from each other yield the incremental 

visibility improvement from SCR.’’ In 

other words, Wyoming clearly 

considered—and made available to 

EPA—the very specific NOX information 

that EPA claims it ‘‘was not possible for 

EPA, or any other party, to ascertain.’’ 

Simply claiming it ‘‘was not possible for 

EPA’’ to ascertain results from available 

information does not justify EPA in 

rejecting Wyoming’s NOX BART 

determinations. Wyoming had 

considered SCR-specific visibility 

information. EPA cannot use the alleged 

lack of this information to justify 

requiring SCR as BART. 

Response: We disagree with all 

aspects of this comment. Although a 

state is not required by EPA’s 

regulations to model the visibility 

impacts from all possible control 

alternatives if the state selects the most 

stringent controls available as BART 

that is not what happened here. 

Wyoming rejected SNCR and SCR as 

BART without adequately assessing the 

visibility benefits of these control 

strategies. Given the cost effectiveness 

of these controls, the State’s failure to 

consider visibility impacts was not 

reasonable and was inconsistent with 

the CAA and regulations. EPA was 

compelled to perform additional 

CALPUFF modeling for NOX BART 

determinations to allow for 

consideration of visibility impacts. For 

example, while Wyoming took into 

consideration the degree of visibility 

improvement for other BART NOX

control options for the PacifiCorp EGUs, 

such as SCR, the State did not do so for 

SNCR. The visibility improvement for 

SNCR was neither provided in the 

State’s SIP nor made available to the 

EPA. Wyoming did not assess the 

visibility improvement of SNCR despite 

having found it to be a technically 

feasible control option, and having 

considered a number of the other 

statutory factors for SNCR, such as costs 

of compliance and energy impacts. 

Given that nothing in the State’s 

analysis suggested that SNCR was 

inappropriate, Wyoming’s failure to 

consider the visibility improvement of 

SNCR is clearly in conflict with the 

statutory requirements set forth in 

section 169A(g)(2) of the CAA, which 

require that states take into 

consideration ‘‘the degree of 

improvement in visibility which may 

reasonably be anticipated to result from 

the use of such technology.’’ Since 

Wyoming did not do so, EPA conducted 

additional CALPUFF modeling to fill 

this gap in the State’s visibility analysis. 

In addition, as stated in our 2012 

proposed rule and in our 2013 reproposal, it was not possible for EPA, or 

any other party, to ascertain the 

visibility improvement from the NOX

control options as emission reductions 

for multiple pollutants were modeled 

together. That is, since the visibility 

improvement for each of the State’s 

control scenarios was due to the 

combined emission reductions 

associated with SO2, NOX, and PM 

controls, it was not possible to isolate 

what portion of the improvement was 

attributable to the NOX controls alone. 

For this reason, in the modeling 

conducted by EPA, we held SO2 and PM 

emission rates constant (reflecting the 

‘‘committed controls’’ for those 

pollutants identified by Wyoming), and 

varied only the NOX emission rate. This 

allowed us to isolate the degree of 

visibility improvement attributable to 

the NOX control option. 

We do agree that Wyoming’s analysis 

allows for the incremental comparison 

between two post-control options (PostControl Scenario A and Post-Control 

Scenario B). However, the BART 

Guidelines require more than this, 

stating that you should ‘‘[a]ssess the 

visibility improvement based on the 

modeled change in visibility impacts for 

the pre-control and post-control 

emission scenarios.’’ 79 That is, it is not 

sufficient to assess only the incremental 

visibility between control options, you 

must also assess the visibility 

improvement of each control option 

relative to the pre-control scenario. 

Therefore, Wyoming clearly did not 

assess visibility improvement in a 

manner consistent with that explicitly 

prescribed by the BART Guidelines. 

In summary, while States may have 

some discretion in how to determine 

visibility impacts, Wyoming did not 

fulfill the basic statutory requirement to 

consider the visibility improvement of 

each of the NOX control options they 

identified as technically feasible. They 

also did not assess visibility 

improvement in a manner consistent 

with the approach prescribed by the 

BART Guidelines. As a result, EPA 

concluded it would be appropriate to 

conduct additional CALPUFF modeling. 

Comment: The egregiousness of EPA’s 

actions becomes even more apparent 

when comparing EPA’s conclusions 

regarding cost and visibility impacts for 

certain of PacifiCorp’s BART units 

against the cost and visibility impact 

conclusions reached by Wyoming for 

the same units. Table 2 in our comments 

provides a comparison between 

Wyoming’s modeled delta deciview 

improvements and EPA’s delta deciview 

improvements based on the ‘‘new 

information’’ EPA claims it has 

developed. Recognizing EPA’s 

conclusion that one deciview is barely 

perceptible to the human eye and 

considering the inaccuracies and 

limitations of the model inputs and 

versions of the visibility models being 

used, there is no significant difference 

between Wyoming’s results and EPA’s 

results. Additionally, without any 

‘‘bright line’’ test regarding the amount 

of visibility improvement that justifies a 

given control device, EPA cannot show 

that these insignificant differences 

would have any impact on the BART 

determinations for PacifiCorp’s BART 

units. 

Response: With respect to the ‘‘bright 

line’’ test, EPA’s task in conducting 

modeling for developing our FIP is to 

conduct modeling in accordance with 

the CAA and RHR using our best 

scientific and technical judgment. We 

then consider the modeling results, 

along with the other BART factors, in 

making the BART determinations. 

While it is permissible to establish a 

‘‘bright line,’’ we have not done so. 

Furthermore, as we discuss in detail in 

section IV of this final notice and 

elsewhere in response to comments, we 

disagree with commenter’s assertions 

that there are no significant differences 

between Wyoming’s results and EPA’s 

results. We have addressed the issue of 

perceptibility elsewhere in our response 

to comments. 

Comment: We received comments 

that by the year 2022, EPA’s plan and 

Wyoming’s plan achieve essentially 

identical results for visibility, and 

therefore, the proposed FIP would have 

no net visibility benefit over the SIP. 

Response: We disagree. Our proposed 

FIP, by merit of requiring more stringent 

controls than those proposed in the SIP 

for some sources shown to cause or 

contribute to visibility impairment, 

results in greater visibility benefit. 

Although, based on our revised analyses 

for visibility impacts and costs of 

compliance and considering the five 

BART factors, we have revised some of 

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5110 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

80 70 FR at 39123. 

81Assessment of the ‘‘VISTAS’’ Version of the 

CALPUFF Modeling System, EPA–454/R–08–007, 

August 2008; also see CALPUFF Model Change 

Bulletins B (MCB–B), MCB–C and MCB–D. 

82 70 FR at 39121 

83 70 FR at 39121–29124. 

84 70 FR at 39123. 

our proposed control determinations, 

this assessment remains true for today’s 

final rule. In particular, our final rule 

results in greater visibility improvement 

than the SIP for PacifiCorp Dave 

Johnston Unit 3 and Wyodak and Basin 

Electric Laramie River Units 1–3. The 

improvement in visibility stemming 

from the FIP, as compared to the SIP, 

can easily be discerned by reviewing 

relevant control options as found in 

Tables 2 through 17 of section III.A of 

this action. 

Comment: On average, the 2000 

baseline level for Class I areas in 

Wyoming is 11 deciviews. The 2064 

natural background goal is 6 deciviews. 

IMPROVE data suggests that there is not 

this amount of nitrate improvement to 

be obtained. It appears EPA is trying to 

achieve a greater reduction for nitrates 

than is required at this time to reach the 

2064 natural background goal. For 

Bridger, the total amount of deciview 

reduction for controls (6.08) exceeds the 

entire deciview reduction (all 

pollutants) from baseline to 2064. The 

value (6.08 deciviews) is also 10 fold 

higher than Wyoming’s contribution to 

nitrate levels (0.62 deciviews—see Table 

23 of EPA’s proposed rulemaking) at the 

Class I area for the 2000–2004 baseline 

year. This value was calculated by 

multiplying 6.2% times the Class I 

area’s 2000 baseline deciview value of 

11.1. The same discussion is valid for 

Yellowstone as well, where the modeled 

nitrate reductions equal 2.27 deciviews 

and Wyoming’s total reduction potential 

is only 0.82 deciviews. 

Response: EPA disagrees with this 

comment. The commenter appears to be 

referring to annual mean estimates of 

visibility impairment at Class I areas, 

and comparing these estimates with the 

original CALPUFF modeled visibility 

improvements in our 2012 proposal. 

The values referred to in Table 23 of 

EPA’s proposed rulemaking are mean 

estimates for the 20% worst visibility 

days. The BART Guidelines recommend 

that visibility impairment be evaluated 

for the 98th percentile contribution for 

each BART source. It is likely that 98th 

percentile visibility impacts will differ 

significantly from annual mean impacts, 

so it is not possible to directly compare 

our modeled impacts on the 98th 

percentile day to seasonal mean or the 

mean of the worst 20% days. However, 

we also note that in the revised final 

modeling included in this action, the 

CALPUFF modeled visibility 

improvements are less than the values 

cited above by the commenter from the 

original proposal, and the commenter’s 

comparisons are no longer relevant. 

Comment: The measured visibility 

impairment at IMPROVE stations offers 

a more certain and reliable 

quantification of the actual cause of 

visibility impairment than the 

CALPUFF model approved by the EPA 

for BART visibility assessments. 

CALPUFF is an EPA-approved model 

for long-range transport, as described in 

the EPA’s ‘‘Guideline on Air Quality 

Models’’ 40 CFR Part 51 Appendix W, 

but only for the modeling of PSD 

increments. The treatment of chemical 

transformation, which is a crucial aspect 

for any model that is used for visibility 

assessments, is considered to be 

inadequate within CALPUFF. In fact, 

the lead modelers at the EPA’s Office of 

Air Quality Planning and Standards 

have initiated a formal regulatory 

process to more fully evaluate (and very 

possibly replace) CALPUFF as an EPApreferred model for long-range 

transport. 

Response: EPA disagrees that the use 

of monitoring data from the IMPROVE 

network would provide a more accurate 

assessment of the predicted degree of 

visibility from the use of controls at a 

source than does CALPUFF. The 

commenter has not explained how 

monitoring data could be used to assess 

the actual current contributions to 

visibility impairment, and in any case, 

models are needed to estimate the 

potential future visibility impacts from 

the use of a range of controls at a 

specific source. In recommending the 

use of CALPUFF for assessing source 

specific visibility impacts, EPA 

recognized that the model had certain 

limitations but concluded that ‘‘[f]or 

purposes of the regional haze rule’s 

BART provisions . . . CALPUFF is 

sufficiently reliable to inform the 

decision-making process.’’ 80 EPA 

accordingly appropriately used 

CALPUFF in this action. We further 

note that the requirements of 40 CFR 

51.112 and 40 CFR part 51, Appendix 

W, Guideline on Air Quality Models 

(GAQM) and the BART Guidelines 

which refers to GAQM as the authority 

for using CALPUFF, provide the 

framework for determining the 

appropriate model platforms and 

versions and inputs to be used. The use 

of CALPUFF is subject to GAQM 

requirements in section 3.0(b), 4, and 

6.2.1(e) which includes an approved 

modeling protocol to use the current 5.8 

version.81

In promulgating the BART guidelines, 

EPA addressed concerns with 

CALPUFF’s treatment of chemical 

transformations by recommending that 

states use the 98th percentile of 

modeled visibility impacts,82 an 

approach that EPA followed here, to 

address the possibility that the model 

could overestimate impacts. EPA’s 

discussion of CALPUFF in this 2005 

rulemaking addresses these issues at 

length.83

EPA’s modeling in this action was 

consistent with the BART Guidelines 

and Appendix W. As explained in more 

detail above, in recommending the use 

of CALPUFF for assessing source 

specific visibility impacts, EPA 

recognized that the model had certain 

limitations but concluded that ‘‘[f]or 

purposes of the regional haze rule’s 

BART provisions . . . CALPUFF is 

sufficiently reliable to inform the 

decision-making process.’’ 84 To the 

extent that the comment takes issue 

with the provisions in the BART 

Guidelines for use of CALPUFF as 

described above, the legal deadline for 

challenging the use of CALPUFF has 

passed. In addition we encourage the 

commenter to provide input in the event 

that EPA develops any new future 

visibility guidelines and predictive 

models. 

With respect to the comment on the 

IMPROVE data, we have addressed this 

in the response to another comment. 

Comment: Regional haze is affected 

by global geologic, atmospheric and 

anthropogenic sources. None of the 

sources are controllable to the extent of 

achieving ‘‘natural visibility conditions’’ 

at the targeted time frame. The 

quantification of ‘‘natural visibility’’ at 

any geographic point is irrational. 

Natural visibility is a temporal quantity 

and therefore any quantified value is 

subjective and not scientific. Regional 

haze is subject to global atmospheric 

conditions which provide dilutive 

action to the identified sources of haze 

(anthropogenic or otherwise). 

Atmospheric conditions are directly 

related to the baseline eleven year solar 

cycle. To have any form of validity, the 

collection period would necessarily 

encompass at least one full solar cycle, 

arguably two full cycles. Furthermore, 

the dilutive effects of atmospheric 

conditions (and therefore, the 

quantification of visibility) are directly 

related to the known periodic oceanic 

events commonly referred to as ‘‘el 

Nin ̃o’’ and ‘‘la Nin ̃ a’’. These events have 

been monitored and quantified since 

1950 and occurrences are subcategorized as weak, moderate and 

strong. The periodicity of strong events 

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Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 5111 

85 ‘‘Guidance for Estimating Natural Visibility 

Conditions under the Regional Haze Rule’’ 

Document No. EPA–R09–OAR–2012–0345–0003– 

B9, U.S. Environmental Protection Agency, 

September, 2003. 86 70 FR at 39123. 

87Li, Y., Schwandner, F.M., Sewell, H.J., 

Zivkovich, A., Tigges, M., Raja, S., Holcomb, S., 

Molenar, J.V., Sherman, L., Archuleta, C., Lee, T., 

Collett Jr., J.L., Observations of ammonia, nitric 

acid, and fine particles in a rural gas production 

region, Atmospheric Environment (2013), doi: 

10.1016/j.atmosenv.2013.10.007. 

88Chen et al., A Pilot Monitoring Study of 

Atmospheric NHx at Selected IMPROVE sites 

AWMA Aerosol and Atmospheric Optics, Visibility 

& Air Pollution Conference, September 24–28, 2012, 

Whitefish, MT. 

89Wyoming’s ‘‘BART Air Modeling Protocol’’ 

(Protocol) is included in the docket in the State’s 

Technical Support Document. 

90Air Quality Modeling Protocol: Wyoming 

Regional Haze Federal Implementation Plan, U.S. 

EPA, January, 2014. 

91Modeling Protocol: Montana Regional Haze 

Federal Implementation Plan (FIP) Support, 

Continued 

for both ‘‘el Nin ̃ o’’ and ‘‘la Nin ̃ a’’ is 

every 9–11 years. The last strong ‘‘el 

Nin ̃ o’’ occurred in 1997. The last two 

strong ‘‘la Nin ̃ a’’ events occurred in 

2010 and 1999. The baseline data 

collection for regional haze is ignorant 

of these significant atmospheric events, 

which makes the data collection period 

irrelevant and therefore the ‘‘baseline 

visibility’’ invalid. 

Response: EPA disagrees with the 

characterizations in this comment. EPA 

recognizes that a variety of global scale, 

natural emissions sources affect natural 

visibility levels at Class I areas, and we 

described methods used to assess 

natural haze levels.85 We disagree that 

it is necessary to model visibility 

impairment for one or two full solar 

cycles. The formation of fine particulate 

matter, and subsequent impacts on 

regional haze, depend on variations in 

local meteorological conditions. 

Variability in meteorological conditions 

is primarily determined by seasonal 

weather conditions, and the modeling 

period of calendar years 2001–2003 

used in our analysis includes 

substantial variability in weather 

conditions. While phenomena such as el 

Nin ̃ o and la Nin ̃ a can affect the 

frequency of extreme events, our 

modeling analysis is based on the 98th 

percentile visibility impacts and is 

therefore designed to exclude extreme 

events. El Nin ̃ o and la Nin ̃ a events may 

also affect annual total precipitation, 

temperature and other meteorological 

parameters, however, the commenter 

has not provided any evidence that the 

98th percentile visibility impacts would 

differ significantly during an el Nin ̃ o 

and la Nin ̃ a year. We believe that it is 

sufficient to model visibility 

impairment for a 3 year period. In the 

preamble to the BART Guidelines, we 

discussed meteorological variability and 

explained how use of the 98th 

percentile would minimize the 

likelihood that the highest modeled 

visibility impacts would be caused by 

unusual meteorological conditions. 70 

FR 39121. As explained above, our use 

of the 98th percentile is consistent with 

the BART Guidelines and in 

recommending the use of CALPUFF for 

assessing source specific visibility 

impacts, EPA recognized that the model 

had certain limitations but concluded 

that ‘‘[f]or purposes of the regional haze 

rule’s BART provisions . . . CALPUFF 

is sufficiently reliable to inform the 

decision-making process.’’ 86 Thus to 

the extent that the comment suggests 

that the BART Guidelines should have 

used a different percentile to account for 

solar variability in solar cycles, the legal 

deadline for challenging the use of 

CALPUFF has passed. In addition we 

encourage the commenter to provide 

input in the event that EPA develops 

any new future visibility guidelines and 

predictive models. 

2. EPA Modeling 

a. Comments on EPA Modeling 

Comment: Several commenters have 

argued that EPA should have used 

updated models and procedures for its 

revised modeling. In addition, several 

commenters have argued that the State’s 

Protocol was overly conservative in its 

treatment of background ammonia 

concentrations, and that monitoring 

data show that background ammonia 

levels are significantly lower than the 2 

ppb concentration specified in the 

Protocol. Commenters in particular 

directed EPA’s attention to ambient 

monitoring data for ammonia and 

particulate ammonium at a monitoring 

site in Boulder in western Wyoming and 

at several Class I areas. Ambient 

monitoring at the Boulder site was 

performed from 2006 to 2011 and these 

data were recently published by Li et 

al.,87 while the monitoring data at the 

Class I areas for an 8 month period from 

April 2011 to January 2012 and were 

presented at a conference in 2012.88

Response: We agree with the 

comments that we should perform new 

modeling using updated model versions 

and different background ammonia 

concentrations. In this response we 

explain why we originally used the 

same modeling approach used by 

Wyoming and why we have updated the 

modeling for this action. In 2006, the 

State adopted its ‘‘BART Air Modeling 

Protocol’’ (Protocol) 89 that specified the 

approach for using the CALPUFF 

modeling system to evaluate BART 

visibility impacts, and the State and 

several BART sources performed 

modeling studies that were consistent 

with that protocol. For our original 

proposal in 2012, EPA performed 

additional modeling using the State’s 

Protocol to evaluate a limited number of 

emissions scenarios that the State had 

not evaluated in its modeling. EPA 

recognized that there had been updates 

to CALPUFF modeling guidance and 

model versions after 2006 when the 

State adopted the Protocol, however, in 

our original proposal in 2012, which 

included a limited, gap-filling analysis, 

we proposed that it was preferable to 

maintain consistency with the modeling 

approach that the State had adopted in 

its Protocol. In our re-proposal on June 

10, 2013, EPA recognized that some of 

the options used from the State’s 

Protocol were inconsistent with BART 

Guidelines, such as the approach for 

determining baseline emissions. As a 

result, for the re-proposal EPA 

performed new modeling using updated 

emissions data for the baseline period 

and for all emissions control 

technologies, however, EPA continued 

to use the State’s Protocol for EPA’s reproposed modeling analysis. 

After evaluating comments on the reproposal, EPA determined that it was 

necessary to remodel all of the baseline 

and control technology scenarios using 

different background ammonia 

concentrations for the BART sources 

that we reconsidered for this action, 

including Naughton, Jim Bridger, 

Laramie River, Dave Johnston and 

Wyodak. Because this approach 

represents a significant change from 

State’s original Protocol, we believed 

that it was appropriate to develop a new 

modeling protocol that also adopts the 

current model version approved for 

regulatory use, CALPUFF version 5.8, 

and current regulatory default options. 

In making this decision, we considered 

the merits of continuing to use the 

State’s original protocol versus the 

benefits of using the updated CALPUFF 

model that became available after the 

State’s Protocol was adopted, and 

different background ammonia 

concentrations based in part on data 

that have also become available since 

then, and we concluded that it was 

necessary to adopt an updated 

Protocol 90 to respond fully to a number 

of issues raised by various commenters. 

The new EPA Protocol for modeling of 

Wyoming BART uses the same 

CALPUFF model version 5.8 as did the 

protocol that we previously adopted for 

modeling BART sources visibility 

impacts in Montana.91

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5112 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

prepared for EPA Region 8 by Alpine Geophysics, 

LLC, November 21, 2011. 

92 Interagency Workgroup On Air Quality 

Modeling (IWAQM) Phase 2 Summary Report And 

Recommendations For Modeling Long Range 

Transport Impacts (EPA–454/R–98–019), EPA 

OAQPS, December 1998, http://www.epa.gov/

scram001/7thconf/calpuff/phase2.pdf. 

93Langford, A.O., F.C. Fehsenfeld, J. 

Zachariassen, and D.S. Schimel (1992), Gaseous 

ammonia fluxes and background concentrations in 

terrestrial ecosystems of the United States, Global 

Biogeochemical Cycles, 6, 459–483. 

94 Interagency Workgroup On Air Quality 

Modeling (IWAQM) Phase 2 Summary Report And 

Recommendations For Modeling Long Range 

Transport Impacts, EPA–454/R–98–019, (December 

1998) pages 14–15. 

95 IWAQM, Ibid., page 6. 

96Li, Y., Schwandner, F.M., Sewell, H.J., 

Zivkovich, A., Tigges, M., Raja, S., Holcomb, S., 

Molenar, J.V., Sherman, L., Archuleta, C., Lee, T., 

Collett Jr., J.L., Observations of ammonia, nitric 

acid, and fine particles in a rural gas production 

region, Atmospheric Environment (2013), doi: 

10.1016/j.atmosenv.2013.10.007. 

97Li et al. U.S. EPA, December, 2013. 

98Air Quality Modeling Protocol: Wyoming 

Regional Haze Federal Implementation Plan. 

99Wyoming Protocol, p. 12. 

100Wyoming Protocol, p. 15. 

EPA evaluated the comments and the 

ambient ammonia monitoring data 

submitted by commenters. EPA 

understands that there is no single 

accepted method for estimating the 

background concentration of ammonia, 

and that any method will have 

advantages and disadvantages. The lack 

of consensus on a method was a factor 

in EPA’s decision to set aside the 2 ppb 

concentration value specified in the 

State’s Protocol and instead to rely in 

part on the default values in Interagency 

Workgroup on Air Quality Modeling 

(IWAQM) Phase 2 report 92 and in part 

on monitoring data. Specifically, for 

BART sources in western Wyoming we 

performed two modeling runs, one 

relying on an IWAQM default value and 

the other relying only on monitoring 

data. As presented below, EPA’s two 

sets of modeling results for this BART 

source support our final BART 

determinations, as they both show 

similar visibility benefits. As explained 

below, we relied only on an IWAQM 

default value for BART sources in 

eastern Wyoming. 

The 1998 IWAQM report is the only 

guidance available for choosing 

ammonia background concentrations. 

The IWAQM Phase 2 report relied on a 

1992 review of ambient monitoring data 

for ammonia by Langford et al.93 and 

explains that: ‘‘. . . the formation of 

particulate nitrate is dependent on the 

ambient concentration of ammonia, 

which preferentially reacts with sulfate. 

The ambient ammonia concentration is 

an input to the model. Accurate 

specification of this parameter is critical 

to the accurate estimation of particulate 

nitrate concentrations. Based on a 

review of available data, Langford et al. 

suggest that typical (within a factor of 2) 

background values of ammonia are: 10 

ppb for grasslands, 0.5 ppb for forest, 

and 1 ppb for arid lands at 20 degrees 

Celsius. Langford et al. (1992) provide 

strong evidence that background levels 

of ammonia show strong dependence 

with ambient temperature (variations of 

a factor of 3 or 4) and a strong 

dependence on the soil pH. However, 

given all the uncertainties in ammonia 

data, IWAQM recommends use of the 

background levels provided above, 

unless specific data are available for the 

modeling domain that would discredit 

the values cited. It should be noted, 

however, that in areas where there are 

high ambient levels of sulfate, values 

such as 10 ppb might overestimate the 

formation of particulate nitrate from a 

given source, for these polluted 

conditions. Furthermore, areas in the 

vicinity of strong point sources of 

ammonia, such as feed lots or other 

agricultural areas may experience 

locally high levels of background 

ammonia.’’ 94

The IWAQM Phase 2 report also states 

that ‘‘[i]n a refined analysis, ‘‘the 

background concentrations of ozone and 

ammonia are allowed to vary in time 

and space.’’ 95 In summary, given 

numerous uncertainties in ammonia 

data, the IWAQM Phase 2 report 

recommends use of the background 

values it provides for different land use 

categories, unless specific data is 

available in the modeling domain as a 

more accurate substitute for its 

recommended default values, and 

allows for the consideration of 

background ammonia concentrations 

that vary seasonally or spatially. 

EPA has reviewed monitoring data for 

ammonia and ammonium that have 

been collected at one site in western 

Wyoming since 2006.96 We have 

determined that the monitoring data 

from this site are the most 

representative monitoring data available 

for characterizing ammonia and 

ammonium background levels in the 

modeling domains used for western 

Wyoming as explained in detail below. 

Based on this analysis, EPA has 

concluded that the constant 2 ppb 

background concentration used by the 

State is substantially higher than the 

observed combined ammonia and 

particulate ammonium concentrations at 

this monitoring site in western 

Wyoming, especially during the winter 

season when the observed sum of 

ammonia and particulate ammonium 

concentration were typically much 

lower than 2 ppb.97 Therefore, for two 

BART sources in western Wyoming 

(PacifiCorp’s Naughton and Jim Bridger) 

in one of our modeling runs we 

modeled using monthly varying 

ammonia background concentrations 

based on the combined observed 

concentration of ammonia and 

particulate ammonium at this 

monitoring site in western Wyoming, as 

described in the EPA Protocol.98 In a 

second modeling run for these two 

BART sources, we modeled using the 

default IWAQM ammonia concentration 

of 0.5 ppb for forested areas. Although 

western Wyoming includes a mixture of 

arid grasslands and forested areas, we 

used the IWAQM default value of 0.5 

ppb for forested areas because the Class 

I areas in the modeling domain are 

primarily forested, and because the 

monitoring data more nearly matched 

the IWAQM recommendation for forests 

than the default for the other land types. 

When Wyoming adopted its Protocol 

in 2006, the State explained that: ‘‘A 

constant background ammonia 

concentration of 2.0 ppb is specified. 

This value is based upon monitoring 

data from nearby states and IWAQM 

guidance. Experience suggests that 2.0 

ppb is conservative in that it is unlikely 

to significantly limit nitrate formation in 

the model computations.’’ 99

The Wyoming Protocol specified a 

constant 2 ppb background ammonia 

concentration, but the Protocol 

(addressing source owners performing 

their own BART analyses) states that: 

‘‘[i]f you believe that ammonia limiting 

is appropriate for a specific BART 

analysis, justification should be 

discussed with the Division prior to its 

use.’’ 100 The Wyoming Protocol in the 

text quoted here refers to a method for 

correcting CALPUFF for ammonia 

limiting conditions, which indicates 

that the State recognized the possibility 

that its protocol could be overly 

conservative in its treatment of 

ammonia. Therefore, we believe it is 

appropriate and consistent with the 

IWAQM Phase 2 report and the 

intention of the State’s Protocol to 

model a BART source in western 

Wyoming using both the newly 

available monitoring data, and the 

default concentration recommended in 

the IWAQM Phase 2 report, to represent 

background ammonia concentrations 

more accurately than would be the case 

if we retained the 2 ppb value specified 

in the State Protocol. 

We describe here in more detail the 

ambient monitoring data from the site in 

western Wyoming and our use of those 

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101Li, Y., Schwandner, F.M., Sewell, H.J., 

Zivkovich, A., Tigges, M., Raja, S., Holcomb, S., 

Molenar, J.V., Sherman, L., Archuleta, C., Lee, T., 

Collett Jr., J.L., Observations of ammonia, nitric 

acid, and fine particles in a rural gas production 

region, Atmospheric Environment (2013), doi: 

10.1016/j.atmosenv.2013.10.007. 

102Li et al., Ibid. 

103Air Quality Modeling Protocol: Wyoming 

Regional Haze Federal Implementation Plan,U.S. 

EPA, December, 2013, page 18, Table 7. 

104Protocol for BART-Related Visibility 

Impairment Modeling Analyses in North Dakota, 

November, 2005, North Dakota Department of 

Health, Division of Air Quality, 1200 Missouri 

Avenue, Bismarck, ND 58506. Page 33. 

105Chen et al., A Pilot Monitoring Study of 

Atmospheric NHX at Selected IMPROVE sites 

AWMA Aerosol and Atmospheric Optics, Visibility 

& Air Pollution Conference, September 24–28, 2012, 

Whitefish, MT. 

106Modeling Protocol: Montana Regional Haze 

Federal Implementation Plan (FIP) Support, 

prepared for EPA Region 8 by Alpine Geophysics, 

LLC, November 21, 2011. 

data. Li et al (2013) 101 report on an 

analysis of ambient monitoring data 

conducted from 2006 to 2011 at the 

Pinedale site in western Wyoming in an 

area with significant oil and gas 

production. The monitoring site 

included measurements of gaseous 

ammonia (NH3) and particulate 

ammonium (NH4) and a complete set of 

acidic species including gaseous nitric 

acid and particulate nitrate and sulfate. 

The complete set of measurements 

makes it possible to determine the total 

ammonia and ammonium concentration 

(NHX=NH3+NH4) and to determine if 

ammonium nitrate formation is limited 

by the availability of excess NH3. Li et 

al found significant seasonal variability 

in NH3 and NH4 concentrations at the 

site and concluded that excess nitric 

acid was present in winter, while NH3

concentrations were close to zero in 

winter, indicating that formation of 

ammonium nitrate was limited by the 

availability of ammonia at this site in 

winter.102 Because ammonia at this 

monitoring site may have been affected 

by nearby sources of sulfuric acid and 

nitric acid, which would deplete the 

gaseous ammonia concentration locally, 

we used the combined gaseous and 

particulate measurement of NHX to 

estimate monthly average background 

ammonia concentrations, with a low 

concentration in January of 0.36 ppb 

and a peak concentration in 1.12 ppb in 

August.103 The monitor is located in an 

area that includes nearby sources of 

ammonia emissions from livestock and 

other anthropogenic sources, including 

a nearby area of oil and gas production 

activity, which could result in locally 

elevated ammonia compared to the area 

more immediate to the BART source 

and to the nearest Class I areas. 

Moreover, some of the particulate 

ammonium observed at the site was 

irreversibly bound with sulfate and may 

have had a non-local origin due to long 

range transport of ammonium sulfate. 

These factors mean that this estimate of 

local background may tend to 

overestimate the regional background 

ammonia concentration and thus also 

overestimate the visibility benefit due to 

NOX reductions at sources. There may 

be other unknown factors also working 

in the same direction or in the other 

direction. For example, monitoring 

methods for ammonia and quality 

systems for characterizing monitoring 

accuracy have not been standardized to 

the extent that methods for other 

ambient compounds have been, 

resulting in uncertainty as to whether 

there is bias in the measurements. 

As discussed above, we also modeled 

the PacifiCorp Naughton and Jim 

Bridger BART sources in western 

Wyoming using a constant background 

ammonia concentration of 0.5 ppb, 

which is the IWAQM Phase 2 report 

default recommendation for forested 

areas. Model results using either 

approach to determine an ammonia 

background concentration support our 

final BART determinations, as they both 

show similar visibility benefits. 

We also remodeled the BART sources 

in eastern Wyoming including Wyodak, 

Dave Johnston and Laramie River. The 

Class I areas most impacted by these 

BART sources are Badlands and Wind 

Cave National Parks in western South 

Dakota. The closest long-term ammonia 

monitoring site to these Class I areas is 

at site at Beulah, North Dakota operated 

by the State of North Dakota. This site 

is about 280 miles from Badlands 

National Park and about 300 miles away 

from Wind Cave NP. The area around 

Beaulah site includes a mix of 

agricultural lands and grassland. 

Measured monthly average gaseous 

ammonia concentrations at the Beulah 

site in central North Dakota vary from 

about 1 to 2 ppb throughout the year, 

with the lowest values in fall and 

winter.104 Additionally, combined 

ammonia and particulate ammonium 

measurements have been reported at 

Wind Cave National Park for an 8 month 

period by Chen et al.105 This study 

measured NHX daily average 

concentrations in the range of about 

0.05 to 4 ppb, with an annual average 

concentration of 0.75 ppb. We 

considered these monitoring data 

sufficient to put into serious doubt the 

2 ppb concentration specified in the 

State’s Protocol, but insufficient to 

support either a single or an alternative 

modeling run based on monitoring data. 

Therefore, we chose to rely on the 

IWAQM Phase 2 report for a single set 

of modeling runs for the BART sources 

in eastern Wyoming. The area around 

Wind Cave National Park includes 

forested areas, including Black Hills 

National Forest, while the area around 

Badlands National Park includes a mix 

of arid and grass lands. While there is 

uncertainty in the appropriate 

background ammonia level in this 

region, we used the IWAQM Phase 2 

report recommended value of 1 ppb for 

arid lands because it falls within the 

range of the limited monitoring data 

available in nearby regions and because 

it is represents an intermediate level for 

the different land use types within the 

region. 

For both the eastern and western 

Wyoming modeling domains and runs, 

we corrected for ammonia limiting 

conditions. The correction for ammonia 

limiting conditions is a post-processing 

step in POSTUTIL, one component of 

the CALPUFF modeling system. 

Because CALPUFF simulates each 

BART unit individually, the background 

ammonia concentration is assumed by 

the model to be fully available to react 

with emissions from each unit. In 

reality, the total emissions from the 

combined units compete for the 

available ammonia. Also, because 

CALPUFF simulates multiple parcels of 

air originating at each unit, there is the 

possibility that different parcels can 

overlap at a Class I area. The ammonia 

limiting correction in POSTUTIL is 

designed to repartition the available 

ammonia to react with emissions from 

all of the units and overlapping air 

parcels, thereby avoiding double 

counting of the background ammonia. 

We used the same ammonia limiting 

correction in our modeling for Montana 

BART106 sources, and this is a standard 

configuration in the CALPUFF modeling 

system. 

In summary, we concluded that it was 

more reasonable to model visibility 

impacts in western Wyoming using both 

the default IWAQM Phase 2 report 

recommendation for forested areas and 

using a seasonally varying NH3

concentration in western Wyoming that 

was based on long term monitoring of 

NH3 and NH4 from one site, than to use 

the 2 ppb concentration specified in the 

State’s Protocol. We found that the 

visibility impacts predicted for the 

various control levels at the PacifiCorp 

Naughton and Jim Bridger BART 

sources were very similar with these 

two approaches and that either set of 

results supports the same BART 

determination for these sources. 

Therefore, we did not have to make a 

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5114 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

107 77 FR 39123: ‘‘Because of the scale of the 

predicted impacts from these sources, CALPUFF is 

an appropriate or a reasonable application to 

determine whether such a facility can reasonably be 

anticipated to cause or contribute to any 

impairment of visibility. In other words, to find that 

a source with a predicted maximum impact greater 

than 2 or 3 deciviews meets the contribution 

threshold adopted by the States does not require the 

degree of certainty in the results of the model that 

might be required for other regulatory purposes. In 

the unlikely case that a State were to find that a 750 

MW power plant’s predicted contribution to 

visibility impairment is within a very narrow range 

between exemption from or being subject to BART, 

the State can work with EPA and the FLM to 

evaluate the CALPUFF results in combination with 

information derived from other appropriate 

techniques for estimating visibility impacts to 

inform the BART applicability determination. 

Similarly for other types of BART eligible sources, 

States can work with the EPA and FLM to 

determine appropriate methods for assessing a 

single source’s impacts on visibility.’’ 108 70 FR at 39123. 

determination that one approach was 

superior to the other, and we have not 

done so. We also determined that it was 

appropriate to use the default IWAQM 

Phase 2 report recommendation of 1 ppb 

for eastern Wyoming. 

Comment: A commenter believes that 

the improvements from the addition of 

SCR technology are based on highly 

conservative models which overestimate 

the deciview reduction as compared to 

actual monitored data collected at the 

IMPROVE stations. Subsequently, the 

improvement in visibility provided by 

SCR is not supported by the escalated 

costs of $600 million above the cost to 

install Wyoming’s proposed control 

technologies. 

Response: EPA disagrees with this 

comment to the extent that it takes issue 

with EPA’s modeling. As discussed in 

response to other commenters, EPA 

recognized that the State’s original 

modeling protocol specified a fixed 

value of 2 ppb for background ammonia. 

EPA has performed new modeling using 

lower background concentrations and 

using a correction for ammonia limiting 

conditions when modeling multiple 

units from a single BART source. 

EPA also used the most current 

regulatory approved versions of the 

models in the updated modeling. EPA 

has recognized that the CALPUFF 

model can be conservative in estimating 

visibility impairment, and therefore, 

EPA has used the 98th percentile model 

results instead of the maximum 

modeled visibility impairment to 

address the possibility of model 

overpredictions. In recommending the 

use of CALPUFF for assessing source 

specific visibility impacts, EPA 

recognized that the model had certain 

limitations but concluded that ‘‘[f]or 

purposes of the RHR’s BART provisions, 

CALPUFF is sufficiently reliable to 

inform the decision making process, 

e.g., see 77 FR 39123.107 As discussed 

above, to the extent that the comment 

takes issue with the use of the 98th 

percentile, the legal deadline for 

challenging the use of CALPUFF has 

passed, but we encourage the 

commenter to provide input in the event 

that EPA develops any new future 

visibility guidelines and predictive 

models. 

Comment: The commenter states that 

EPA made five errors in its visibility 

modeling, including (1) given the 

general inaccuracy in CALPUFF unitspecific modeling, not allowing 

Wyoming the deference accorded it 

under the CAA; (2) relying upon an 

outdated CALPUFF method of visibility 

modeling, contrary to EPA precedent; 

(3) violating the applicable modeling 

guidance, Appendix W, by not using the 

‘‘best’’ science; (4) violating the Data 

Quality Act by not using the ‘‘best’’ 

science; and (5) failing to recognize the 

gross overestimations and internal 

inconsistencies in EPA’s modeling 

approach. 

Response: EPA disagrees with this 

comment. In response to item (1): In 

promulgating the BART guidelines we 

made the decision in the final BART 

Guideline to recommend that the model 

be used to estimate the 98th percentile 

visibility impairment rather than the 

highest daily impact value as proposed. 

We made the decision because ‘‘there 

are other features of our recommended 

modeling approach that are likely to 

overstate the actual visibility effects of 

an individual source. Most important, 

the simplified chemistry in the model 

tends to magnify the actual visibility 

effects of that source. Because of these 

features and the uncertainties associated 

with the model, we believe it is 

appropriate to use the 98th percentile, a 

more robust approach that does not give 

undue weight to the extreme tail of the 

distribution.’’ 77 FR 39121. In regard to 

deference to the state, as discussed in 

more detail elsewhere in this document, 

Congress crafted the CAA to provide for 

states to take the lead for implementing 

plans, but balanced that decision by 

requiring EPA to approve the plans or 

prescribe a federal plan should the state 

plan be inadequate to meet CAA and 

regulatory requirements. Our action 

today is consistent with the statute and 

regulations. In response to item (2): We 

initially relied on the State’s modeling 

Protocol, adopted in 2006, that specified 

model versions available at that time, 

but that have since been updated. In our 

original proposal we performed limited 

gap filling modeling that was consistent 

with the State’s Protocol and that used 

the same model versions as the State. In 

this final action, as presented in more 

detail in the Protocol in the docket, due 

to a number of other changes in the 

protocol, we also updated the protocol 

to use the current regulatory version of 

the CALPUFF modeling system. In 

response to items (3) and (4): In 

recommending the use of CALPUFF for 

assessing source specific visibility 

impacts, EPA recognized that the model 

had certain limitations but concluded 

that ‘‘[f]or purposes of the regional haze 

rule’s BART provisions . . . CALPUFF 

is sufficiently reliable to inform the 

decision-making process.’’ 108 EPA 

accordingly appropriately used 

CALPUFF in this action. EPA 

recognized that there were uncertainties 

in the science of the CALPUFF 

modeling system, and therefore used the 

less conservative 98th percentile value 

to model results to address the 

possibility that the model was overly 

conservative. We address concerns 

about the Data Quality Act (also referred 

to as the Information Quality Act), 

elsewhere in this document. In response 

to item (5): EPA recognized that the 

State’s original Protocol was 

inconsistent with the IWAQM report 

and monitoring data because of the use 

of a constant 2 ppb ammonia 

concentration, and our modeling in this 

action relied on ambient monitoring 

data and the default values consistent 

with IWAQM Phase 2 report, to specify 

two alternatives for more realistic 

background ammonia concentrations in 

western Wyoming. We also reduced the 

background ammonia concentration 

from 2 to 1 ppb in eastern Wyoming, as 

discussed previously. A seasonal 

ammonia concentration was not 

adopted due to the lack of high quality 

monitoring data in eastern Wyoming; 

however, as discussed previously, the 1 

ppb background estimate is consistent 

with IWAQM Phase 2 report. As 

discussed elsewhere, we also used the 

ammonia limiting correction for 

modeling multiple units from a single 

BART source to address concerns with 

the model being overly conservative. 

Comment: Contrary to its own 

guidance, EPA failed to use the most 

realistic model. 40 CFR part 51, 

Appendix W, EPA’s modeling guidance, 

demands that the ‘‘best’’ model should 

always be used. EPA failed to use the 

‘‘best’’ model in Wyoming, which is 

CALPUFF 6.4. Therefore, EPA failed to 

follow Appendix W’s requirements. 

Response: We disagree with this 

comment. As explained above, EPA 

followed the RHR. Specifically, in 

recommending the use of CALPUFF for 

assessing source specific visibility 

impacts, EPA recognized that the model 

had certain limitations but concluded 

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Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 5115 

109 70 FR at 39123. 

111 Guidelines for Ensuring and Maximizing the 

Quality, Objectivity, Utility, and Integrity of 

Information Disseminated by the Environmental 

Protection Agency, EPA/260R–02–008 October 

2002, U.S. Environmental Protection Agency Office 

of Environmental Information (2810) 1200 

Pennsylvania Avenue NW., Washington, DC 20460. 

that ‘‘[f]or purposes of the regional haze 

rule’s BART provisions . . . CALPUFF 

is sufficiently reliable to inform the 

decision-making process.’’ 109 EPA 

accordingly appropriately used 

CALPUFF in this action. The use of 

CALPUFF is subject to GAQM 

requirements in section 3.0(b), 4, and 

6.2.1(e) which includes an approved 

protocol to use the current 5.8 version, 

which is the version we used for EPA’s 

final modeling analysis. We did not use 

CALPUFF Version 6.4 because this 

version of the model has not been 

approved by EPA for regulatory use. 

We made the decision in the final 

BART Guidelines to use less than the 

highest daily impact value for 

assessment of visibility impacts. We 

made this decision in response to 

comments we received expressing 

concern that the chemistry modules in 

the CALPUFF model are less advanced 

and that use of the 1st High was 

conservative and the knowledge that 

CALPUFF’s simplified chemistry could 

lead to model overpredictions and thus 

be conservative. We decided in the 

BART Guideline to use the 98 percentile 

for CALPUFF based modeling results. 

We also received comments opposed to 

using the day with the worst 

meteorology, but the primary reason we 

changed to using a less stringent metric 

than the day with the highest visibility 

impact was because of concerns about 

overestimations in CALPUFF’s 

simplified chemistry. As a result, we 

determined that it was appropriate to 

use the 98th percentile or 8th High 

value when modeling all days of the 

year instead of the 1st High value, also 

described as the Highest Daily impact 

level for each year modeled: ‘‘Most 

important, the simplified chemistry in 

the model tends to magnify the actual 

visibility effects of that source. Because 

of these features and the uncertainty 

associated with the model, we believe it 

is appropriate to use the 98th 

percentile—a more robust approach that 

does not give undue weight to the 

extreme tail of the distribution.’’ 110

Comment: EPA’s modeling for its 

regional haze FIP action was inadequate 

and incomplete. (EPA failed to re-run 

WRAP regional modeling due to ‘‘time 

and resource constraints’’). Therefore, 

EPA’s regional haze FIP action violates 

the ‘‘Guideline on Air Quality Models,’’ 

40 CFR part 51 Appendix W, the 

Information Quality Act and the 

implementing guidelines issued, 

respectively, by the U.S. Office of 

Management and Budget (OMB) and the 

EPA which require information 

disseminated by EPA to be accurate, 

complete, reliable and unbiased. The 

Information Quality Act and EPA’s 

‘‘Information Quality Guidelines’’ place 

a heightened standard on ‘‘influential’’ 

information, including scientific 

information regarding health, safety, or 

environmental risk assessments. EPA’s 

inaccurate and incomplete visibility 

modeling is by definition ‘‘influential,’’ 

because EPA could reasonably 

determine that dissemination of the 

information will have or does have a 

clear and substantial impact on 

important public policies or important 

private sector decisions, such as the 

BART NOX determinations in EPA’s 

regional haze FIP. 

Therefore, this ‘‘influential’’ 

information must be based on best 

available science and data and 

supporting studies must be conducted 

in accordance with sound objective 

scientific practices and methods. EPA’s 

Guidelines implementing the 

Information Quality Act expressly 

contemplate the correction of 

information disseminated by EPA that 

falls short of the ‘‘basic standard of 

quality, including objectivity, utility, 

and integrity,’’ established by either 

EPA’s own Guidelines or those issued 

by OMB. 

The commenter seeks correction to a 

number of errors and omissions in 

EPA’s regional haze FIP with regard to 

CALPUFF modeling and EPA’s failure 

to re-run the WRAP model. The 

commenter requests that EPA withdraw 

its regional haze FIP until these issues 

are resolved. 

Response: As EPA explained in our 

Information Quality Guidelines, we 

believe ‘‘that the thorough consideration 

provided by the public comment 

process serves the purposes of the 

Guidelines, provides an opportunity for 

correction of any information that does 

not comply with the Guidelines, and 

does not duplicate or interfere with the 

orderly conduct of the action.’’ 111

Therefore, we are responding to the 

modeling comments and related 

comments regarding EPA’s Guidelines 

and the Information Quality Act in this 

document. 

WRAP performed regional 

photochemical modeling using both the 

Community Multi-Scale Air Quality 

modeling system (CMAQ) and 

Comprehensive Air Quality Model 

(CAMx) air quality models to evaluate 

progress toward attaining visibility goals 

using all projected emission changes 

from all source categories throughout 

the United States. WRAP did not 

perform regional photochemical 

modeling to evaluate the visibility 

impacts of individual BART sources. 

While WRAP did make assumptions 

regarding the level of emissions control 

that would be adopted by BART sources 

as part of its analyses, no state or EPA 

region has re-run the WRAP’s regional 

photochemical models to assess 

individual BART source contributions 

to visibility impairment. Instead, the 

BART sources, the states, and EPA have 

used the CALPUFF model to evaluate 

contributions to visibility impairment 

from individual BART sources. This 

approach is consistent with the BART 

Guidelines that recommend that the 

CALPUFF model should be used to 

evaluate visibility impairment from 

individual BART sources. Additionally, 

while EPA supported development of 

WRAP CMAQ modeling in order to 

assist states in developing their RPGs 

and determining the cumulative benefit 

of an overall control strategy vis-a`-vis 

the URP on the 20% worst days, our use 

of CALPUFF for evaluating visibility 

improvement from a single BART 

source is consistent with the BART 

Guidelines and also consistent with 

modeling performed by other states and 

EPA regional offices for individual 

BART sources. 

We have responded to comments 

related to errors and omissions in the 

CALPUFF modeling in separate 

response to comments. 

Comment: The commenter states that 

the revised EPA modeling, which used 

new information on emissions rates, did 

not significantly change the results 

identified in Wyoming’s BART analyses. 

The commenter also states that there are 

small differences between EPA’s and 

Wyoming’s analyses which do not 

justify EPA rejecting Wyoming’s BART 

determinations. 

Response: We disagree that in all 

cases there are only small differences in 

EPA revised modeling and the State’s 

modeling. Importantly, as described 

elsewhere in this document and in the 

docket for this action, EPA revised and 

corrected various inputs to the BART 

factors so that the analyses are 

consistent with the RHR and statutory 

requirements. While the difference at 

the most impacted Class I area from 

individual sources or units is some 

cases can be characterized as small, the 

cumulative differences from many small 

improvements can be significant. 

Whether such differences are significant 

will depend on the overall 

consideration of the BART factors. 

Because of the flaws in Wyoming’s 

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5116 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

112 ‘‘CALPUFF Regulatory Update’’, Roger W. 

Brode, Presentation at Regional/State/Local 

Modelers Workshop, June 10–12, 2008; http://

www.cleanairinfo.com/

regionalstatelocalmodelingworkshop/archive/2008/

agenda.htm. 

visibility and cost analyses for many of 

its BART sources, EPA could not be 

confident that Wyoming’s BART 

determinations were reasonable without 

undertaking an appropriate analysis of 

the statutory factors. 

Comment: The commenter states that 

Wyoming provided the required 

modeled visibility improvement 

information for SCR, and quotes from 

the State’s analysis: ‘‘Post-Control 

Scenario B is directly comparable to 

Post-Control Scenario A as the only 

difference is directly attributable to the 

installation of SCR.’’ The commenter 

then concludes EPA did not lack the 

required information to evaluate 

visibility improvements. 

Response: We have addressed this 

comment in a previous response, citing 

the requirement in the BART Guidelines 

that visibility must be assessed relative 

to the pre-control scenario (and not just 

incremental to other control scenarios). 

Moreover, there remain deficiencies, as 

presented elsewhere in this document 

and docket, with the State’s BART 

modeling analyses that justify our 

rejection of the State’s BART 

determinations for PacifiCorp. Most 

notably, as discussed in separate 

responses, the State did not assess the 

visibility improvement of SNCR as 

required by the CAA and BART 

Guidelines. 

Comment: An older version of the 

CALPUFF modeling suite was used by 

EPA (CALPUFF model of March 2006 

vintage and the CALPOST model of 

April 2006 vintage.) These older 

versions pre-date the latest Model 

Change Bulletin (MCB–D) of June 23, 

2007. Since the analysis for the five 

Wyoming power plants was performed 

in February thru April 2012, we 

question why the older version was 

used and not the current CALPUFF 5.8 

version, which was approved as the 

guideline version in June of 2007. We 

do not recommend use of the older 

versions of CALPUFF and CALPOST. 

Response: As described in this action, 

our previous modeling continued to use 

the State’s Protocol, including the older 

model versions, to maintain consistency 

with the State’s modeling results. 

However, in this final action, we 

adopted a new modeling protocol that 

uses the current regulatory versions of 

the models, including the Model Change 

Bulletin suggested by the commenter. 

We determined that it was appropriate 

to adopt an updated modeling protocol 

because we made other significant 

changes in the State’s modeling 

approach, and because we remodeled all 

emissions scenarios, there was no longer 

a need to use older model versions for 

consistency of comparison of our 

limited gap filling model results to the 

State’s original modeling. 

Comment: EPA should have used the 

most recent version of CALPUFF, or at 

a minimum, should have used the 

version that EPA requires for other 

regional haze SIPs. EPA has taken the 

position that CALPUFF Version 5.8 

must be used for regional haze 

modeling. 77 FR 42834, 42854. 

However, EPA’s unit-specific CALPUFF 

modeling in Wyoming, completed in 

April 2012, used CALPUFF Version 

5.711a (originally released in 2004). 

Version 5.711a is eight years old, and 

several CALPUFF versions behind 

Version 5.8. While PacifiCorp believes 

the more modern and realistic 

CALPUFF Version 6.42 should be used, 

at a minimum EPA must abide by its 

own position and use Version 5.8 in 

evaluating the Wyoming regional haze 

SIP, which it failed to do. According to 

EPA’s own statements, EPA’s own 

modeling results should be discarded 

because EPA used an improper 

‘‘alternative model’’ in Wyoming. 

EPA should have used the most recent 

version of CALPUFF (Version 6.42) in 

Wyoming because it produces more 

realistic and accurate results. Version 

6.42 contains needed refinements, such 

as a better ‘‘chemistry’’ module known 

as ISORROPIA (Version 2.1). CALPUFF 

Version 6.42 is more accurate because, 

as the FLMs have noted, Version 5.8 

does not have the required settings to 

perform the new Method 8 visibility 

analysis. Additionally, CALPUFF 

Version 6.42 has been maintained by 

TRC, Inc., a private contractor, and has 

had many bug fixes and enhancements 

not included in CALPUFF Version 5.8. 

Most importantly, the previous 

chemistry modules used in Version 5.8 

(and in the 5.711a Version EPA used 

here) also have been shown to 

overestimate nitrate concentrations in 

Wyoming by a factor of 3–4 and 

substantial improvements have been 

made to eliminate this over-prediction 

using the ISORROPIA module. 

Despite all these advancements in 

modeling and modeling science, EPA 

conducted its modeling for its regional 

haze FIP in 2012 using the same (now 

outdated) CALPUFF version that 

PacifiCorp and Wyoming used five years 

ago, which has been shown to 

overestimate results by 300% to 400%. 

Rejecting Wyoming’s modeling, and 

then using the same, outdated modeling 

approach, is arbitrary and capricious. 

Response: As described in previous 

responses, we previously used the same 

modeling protocol adopted by the State 

for the purpose of our limited, gap 

filling modeling, so that we would have 

a consistent basis for comparison with 

the State’s modeling. In this action we 

have updated the protocol to use the 

current regulatory versions of the 

models including CALPUFF version 5.8. 

We did not use CALPUFF Version 

6.42 because this version of the model 

has not been approved by EPA for 

regulatory use. EPA relied on version 

5.8 of CALPUFF because it is EPAapproved version in accordance with 

the Guideline on Air Quality Models 

(‘‘GAQM’’, 40 CFR 51, Appendix W, 

section 6.2.1.e). EPA updated the 

specific version to be used for regulatory 

purposes on June 29, 2007, including 

minor revisions as of that date. The 

approved CALPUFF modeling system 

includes CALPUFF version 5.8, level 

070623, and CALMET version 5.8 level 

070623. CALPUFF version 5.8 has been 

thoroughly tested and evaluated, and 

has been shown to perform consistently 

with the initial 2003 version in the 

analytical situations for which 

CALPUFF has been approved. Any 

other version, and especially one with 

such fundamental differences in its 

handling of chemistry, would be 

considered an ‘‘alternative model’’, 

subject to the provisions of GAQM 

section 3.2.2(b), requiring full model 

documentation, peer-review, and 

performance evaluation. No such 

information for the later CALPUFF 

versions that meet the requirements of 

section 3.2.2(b) has been submitted to or 

approved by EPA. Experience has 

shown that when the full evaluation 

procedure is not followed, errors that 

are not immediately apparent can be 

introduced along with new model 

features. For example, changes 

introduced to CALMET to improve 

simulation of over-water convective 

mixing heights caused their periodic 

collapse to zero, even over land, so that 

CALPUFF concentration estimates were 

no longer reliable.112

The change from CALPUFF version 

5.8 to CALPUFF 6.4 is not a simple 

model update to address minor issues, 

but a significant change in the model 

science that requires its own rulemaking 

with public notice and comment before 

it can be relied on for regulatory 

purposes. 

Furthermore, it should be noted that 

the U.S. Forest Service and EPA review 

of CALPUFF version 6.4 results for a 

limited set of BART applications 

showed that differences in its results 

from those of version 5.8 are driven by 

two input assumptions not associated 

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Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 5117 

113Li et al. 2013 

114Langford et al. 

115For example, see EPA guidance documents 

that discuss methods for estimating background 

NO2 concentrations: ‘‘Additional Clarification 

Regarding Applicability of Appendix W Modeling 

Guidance for the 1-hour NO2 NAAQS’’ 

116Supplemental BART Analysis CALPUFF 

Protocol for Class I Federal Area Visibility 

Improvement Modeling Analysis, DRAFT, revised 

Aug 19, 2010, Colorado Department of Public 

Health and Environment. (CDPHE) Air Pollution 

Control Division Technical Services Program, 4300 

Cherry Creek Drive South, Denver, Colorado 80246, 

pages 26–33. 

with the chemistry changes in 6.4. Use 

of the so-called ‘‘full’’ ammonia limiting 

method and finer horizontal grid 

resolution are the primary drivers in the 

predicted differences in modeled 

visibility impacts between the model 

versions. These input assumptions have 

been previously reviewed by EPA and 

the FLMs and have been rejected based 

on lack of documentation, inadequate 

peer review, and lack of technical 

justification and validation. 

Comment: The commenter states that 

EPA treats the results from the 

CALPUFF as being capable of accurately 

predicting visibility improvements 

down to the tenths or hundredths of a 

deciview, but that the model does not 

accurately predict visibility impacts at 

this level. 

Response: As described in response to 

other comments, EPA recognized that 

there is uncertainty in the CALPUFF 

results, and EPA addressed this 

uncertainty by using the modeled 98th 

percentile visibility impairment rather 

than the maximum visibility 

impairment. EPA considers model 

changes on the order of tenths of a 

deciview to be useful for informing the 

BART decision process, consistent with 

BART modeling performed by other 

EPA regions and states. 

Comment: PacifiCorp presented 

substantial information supporting the 

need to use improved and updated 

versions of the models and provided 

substantial information on the effects 

that the nitrogen oxides to nitrogen 

dioxide conversion rate and background 

ammonia concentrations have on 

modeled visibility impacts. 

Response: We agree with the 

comment that the background ammonia 

concentration has a significant effect on 

model predicted visibility impacts. As 

described elsewhere in this action, we 

reviewed recent ambient monitoring 

data for ammonia and particulate 

ammonium, and concluded that the 

original background ammonia 

concentration of 2 ppb was inconsistent 

with the IWAQM Phase 2 report and 

monitoring data for estimating visibility 

impacts in Wyoming, especially in the 

western portion of the State. In the 

modeling results included in this action, 

we considered the default value of 0.5 

ppb and also applied a seasonally 

varying background ammonia 

concentration in western Wyoming that 

was based on measurements from 2006 

to 2011 of total ammonia and particulate 

ammonium at Pinedale, Wyoming.113

We also reduced the background 

ammonia concentration to 1 ppb in the 

eastern portion of the State, and for both 

parts of the State we used an ammonia 

limiting correction for modeling 

multiple units from a single BART 

source to avoid double counting of the 

available ammonia. The use of more 

realistic ammonia background 

concentrations, the ammonia limiting 

correction, and the use of the 98th 

percentile modeled impact address the 

concern that the CALPUFF model could 

overestimate visibility impacts. 

Comment: One commenter stated that 

we underestimated the background 

ammonia concentration in the 

CALPUFF modeling, and cited the 

IWAQM Phase 2 recommendations for 

default ammonia concentrations for 

grasslands, forest lands and arid lands, 

respectively, of 10, 0.5 and 1 ppb, at 20 

degrees Celsius. The commenter stated 

that, because land use type can vary 

across the large domains used in the 

CALPUFF modeling, it would be 

appropriate to calculate a weighted 

average of the background ammonia 

based on the fractional land use type in 

the model domain. 

Response: We disagree with this 

comment. The IWAQM Phase 2 report 

does not recommend calculating a 

weighted average of default ammonia 

concentration based on regional 

variation in land use types. The 

commenter provides no regulatory basis 

for use of a weighted average. 

Comment: One commenter stated that 

the IWAQM recommended default 

background ammonia recommendations 

do not specifically account for strong 

point/area sources of ammonia, such as 

cattle feedlots, which are also scattered 

throughout the modeling domain and 

which generally add to the background 

ammonia levels. This commenter stated 

that some areas of the modeling domain, 

namely northeastern Colorado, are 

described as ‘‘ammonia rich’’. For BART 

source analyses in Colorado, the 

recommended background ammonia 

value from the Colorado Department of 

Public Health and Environment 

(CDPHE) is 44 ppb, based on 

measurements conducted during the 

Northern Front Range Air Quality Study 

(NFRAQS), and therefore the Wyoming 

DEQ/EPA background ammonia 

concentration of 2 ppb might not carry 

sufficient ammonia for an accurate 

modeling assessment of visibility 

impacts within certain Colorado Class I 

areas. 

Response: We disagree with the 

comment that large point/area sources 

are not included in estimates of 

background ammonia concentrations. 

While concentrations of ammonia of 

several hundred ppb can be observed 

near a cattle feedlot, these 

concentrations are not typical of 

regional background concentrations. 

Additionally, dispersion and vertical 

mixing occur in plumes of air 

transported downwind of large 

emissions sources, and the resulting 

dilution of ammonia results in lower 

concentrations as the plume is 

transported downwind of the source 

area. Therefore, ambient ammonia 

concentrations are generally greatly 

reduced downwind from the source. 

Moreover, ammonia has a short 

atmospheric lifetime of a few hours to 

a few days,114 and removal of ammonia 

by deposition further reduces the 

concentration downwind of the source 

area. Therefore, it would be 

inappropriate to estimate background 

ammonia levels by measuring ammonia 

concentrations close to a large ammonia 

emissions source. Background 

concentrations of air pollutants are 

generally estimated using ambient 

monitoring data at background sites that 

are specifically selected such that there 

is no direct influence by large nearby 

point or areas sources.115 Therefore, 

background monitoring data do 

explicitly include the contributions of 

emissions from large point and area 

sources by providing a direct 

measurement of the ambient 

concentration after transport, dilution 

and removal processes operate on the 

emissions from the source. 

The commenter also cites modeling 

performed by the CDPHE and ammonia 

measurements made during the 

NFRAQS studies. As discussed in 

another response, CDPHE performed a 

CALPUFF model sensitivity study to 

evaluate the effect of background 

ammonia on model predicted nitrate 

concentrations, and found that the 

CALPUFF model was insensitive to 

variations in background concentrations 

greater than 10 ppb and became 

progressively more sensitive to 

background NH3 as it was reduced from 

10 to 0 ppb.116 The NFRAQS study 

reported measured ammonia 

concentrations in the Denver 

metropolitan area, and these 

measurements are not representative of 

background ammonia concentrations in 

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rural and remote areas of central 

Colorado or western Wyoming. 

Comment: The commenter states that 

Wyoming has conducted its regional 

haze SIP based on the modeling 

protocols and versions available at the 

time its regional haze SIP was 

completed. Because of this, there are 

limitations associated with the results 

obtained. However, in proposing its 

regional haze SIP, Wyoming has 

evaluated the model output with an 

understanding of the model’s 

limitations. Wyoming then applied its 

judgment, as encouraged and required 

by EPA’s guidelines and the CAA, 

which helped to mitigate the issues 

associated with models that over-predict 

the visibility improvement associated 

with BART controls being added. In 

contrast, EPA gives no consideration to 

the limitations of the models it uses. In 

the absence of using good judgment to 

deal with over-predictive results, it is 

critical that EPA use the most up-to-date 

and scientifically accurate models 

available. 

We also received related comments 

that states have significant modeling 

discretion to which EPA failed to grant 

the proper deference. One commenter 

pointed out that the BART Guidelines 

recognize that states can make 

judgments regarding the use of 

modeling results due to the very real 

problems with CALPUFF, including its 

overestimation of visibility 

improvement. As EPA itself has stated, 

Wyoming should be free to make its 

own judgment about which modeling 

approaches are valid and appropriate. 

70 FR 39123. Another commenter 

pointed to the statement that ‘‘we must 

permit States to take into account the 

degree of improvement in visibility that 

would result from imposition of BART 

on each individual source when 

deciding on particular controls.’’ 70 FR 

39107, 39129. Another commenter 

stated that EPA failed to allow Wyoming 

to account for CALPUFF’s 

overestimation of NOX impacts, and 

therefore, EPA is not affording 

Wyoming’s BART decisions the proper 

deference when it comes to the 

modeling and applying the modeling 

results. 

Response: As discussed elsewhere in 

this document in greater detail, 

Congress crafted the CAA to provide for 

states to take the lead for implementing 

plans, but balanced that decision by 

requiring EPA to approve the plans or 

prescribe a federal plan should the state 

plan be inadequate. Our action today is 

consistent with the statute. As also 

discussed elsewhere in this document, 

we agree that there are limitations in the 

original modeling performed by the 

state, and therefore, it was necessary to 

perform new modeling using more 

realistic background ammonia 

concentrations, default values, and 

updated model versions to provide a 

sound basis for evaluating BART source 

visibility impacts. Our revised modeling 

is consistent with the BART Guidelines 

and with visibility modeling guidance 

in the IWAQM Phase 2 report, and we 

believe that the revised modeling 

constitutes a sound basis for evaluating 

visibility impacts of BART sources and 

in fact is supportive of Wyoming’s SIP 

with respect to sources where ammonia 

background makes a significant 

differences. 

Comment: The commenter states that 

EPA should have used the most recent 

version of CALPUFF (Version 6.42) in 

Wyoming because it produces more 

realistic and accurate results and 

because Version 5.8 does not have the 

required settings to perform the new 

Method 8 visibility analysis. 

Response: As described in response to 

another comment, we used CALPUFF 

version 5.8 because this is the approved 

regulatory version of the model, while 

CALPUFF version 6.42 has not been 

approved. CALPUFF version 5.8 does 

allow the option of using the Method 8 

visibility analysis, and as described in 

our modeling protocol, we used Method 

8 for our analysis. The availability of 

Method 8 in CALPUFF version 5.8 was 

one of the reasons that we determined 

it was important to perform new 

modeling using the current regulatory 

version of the model, rather than 

continuing to rely on the original 

protocol adopted by the State in 2006, 

as we had done in our previous 

proposal. 

Comment: EPA used a different 

background ammonia number for 

modeling than it requires of the states, 

and ignored current science on 

background ammonia. Regional haze 

modeling, and the resulting predicted 

visibility improvement, is greatly 

influenced by the background ammonia 

number used in the model. EPA 

improperly used a constant 2 ppb 

background ammonia number for the 

Wyoming BART modeling. EPA has not 

provided any scientific proof showing 

the constant 2 ppb ammonia number is 

appropriate for Wyoming. The 2 ppb 

ammonia value overestimates visibility 

improvement, contrary to the approach 

used by Wyoming Land Use, IWAQM 

Guidance, WRAP protocols, and 

elsewhere. 

Commenter suggests that the WRAP 

recommended the use of 1 ppb of 

ammonia year round for states in the 

region to account for seasonal 

variability. EPA has required states to 

use 1 ppb of background ammonia when 

conducting regional haze modeling. 76 

FR 52434 (New Mexico criticized for not 

using 1 ppb background ammonia). At 

a minimum EPA should follow its own 

guidelines and use 1 ppb of background 

ammonia when conducting CALPUFF 

unit-specific modeling. 

However, the ‘‘best’’ science requires 

the use of ‘‘variable ammonia’’ 

background numbers. IWAQM 

recommends ammonia background 

numbers of 0.5 ppb for forest, 1 ppb for 

dry/arid lands, and 10 ppb for 

agriculture/grassland. Given its 

geographic location and elevation 

levels, Wyoming undergoes seasonal 

swings of dry-hot summers and snow 

covered ground in the winter. Therefore, 

the use of a single ammonia 

concentration for the entire year in a 

state where the land use and land cover 

changes significantly between seasons 

results in overestimation of visibility 

improvements. This is particularly true 

in winter when agricultural activity is 

minimal and meteorological conditions 

make visibility calculations particularly 

sensitive to ambient ammonia 

concentrations. EPA has approved the 

use of variable gaseous ammonia 

concentrations before, including the 

‘‘Addendum to Modeling Protocol for 

the Proposed Desert Rock Generating 

Station’’ and should have used them 

when conducting the CALPUFF 

modeling for Wyoming. 

Sensitivity tests on ambient ammonia 

concentrations were performed by the 

CDPHE for an area in northwest 

Colorado. The analysis demonstrated 

that visibility calculations performed at 

Mount Zirkel Wilderness Area in 

northwest Colorado had limited impact 

when ambient ammonia concentrations 

were reduced from 100 to 1 ppb, but 

there was a significant reduction in 

visibility impacts when concentrations 

were further reduced to 0.1 ppb. 

Given the evidence presented above, 

the use of the monthly varying ammonia 

would provide accurate estimates of 

visibility impacts from the PacifiCorp 

regional haze units. EPA’s failure to use 

variable background ammonia in its 

modeling is arbitrary and capricious. 

Response: We agree that the 2 ppb 

constant background ammonia 

concentration is inconsistent with the 

IWAQM Phase 2 report default values 

and monitored data. This value was 

adopted by the State in 2006 before 

more reliable ammonia and particulate 

ammonium measurements were 

available in Wyoming. As described in 

this action, we modeled using 

seasonally varying background 

ammonia concentrations in western 

Wyoming based on 5 years of 

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117Li et al., 2013. 

118 Interagency Workgroup On Air Quality 

Modeling (IWAQM) Phase 2 Summary Report And 

Recommendations For Modeling Long Range 

Transport Impacts (EPA–454/R–98–019), EPA 

OAQPS, December 1998. 

119Tonnesen, G., Wang, Z., Morris, R., Hoats, A., 

Jia, Y., Draft Final Modeling Protocol, CALMET/

CALPUFF Protocol for BART Exemption Screening 

Analysis for Class I Areas in the Western United 

States, Submitted to the Western Regional Air 

Partnership, August 15, 2006. 

120Federal Land Managers’ Air Quality Related 

Values Work Group (FLAG) Phase I Report— 

Revised (2010). 

Natural Resource Report NPS/NRPC/NRR—2010/ 

232. 

121Chapter 6, Section 9(d)(i)(C) of the Wyoming 

Air Quality Standards and Regulations. 

monitoring data,117 and we also 

modeled using the IWAQM default 

value of 0.5 ppb for forests. In eastern 

Wyoming we adopted a constant 1 ppb 

ammonia concentration based on the 

IWAQM guidance. We used an 

ammonia limiting correction for BART 

sources with multiple units throughout 

the State. While robust, long term 

monitoring data of ammonia and 

particulate ammonium are not available 

in eastern Wyoming, the BART sources 

in eastern Wyoming, and the South 

Dakota Class I areas where they 

contribute the greatest visibility 

impairment, are located closer to areas 

of Nebraska and the Dakotas which have 

large agricultural sources of ammonia 

emissions. Moreover, the IMPROVE 

monitoring at the South Dakota Class I 

areas show much higher winter 

concentrations of ammonium nitrate 

than do Class I areas in western 

Wyoming. Therefore, we believe it is 

appropriate to adopt higher background 

ammonia concentrations in eastern 

Wyoming than in western Wyoming, 

and we used a constant 1 ppb ammonia 

concentration in eastern Wyoming, 

consistent with the IWAQM 

guidance 118 for arid lands and also 

consistent with the WRAP Protocol.119

Comment: EPA made a modeling error 

in Wyoming when it used CALPOST 

version 5 with Method 6. FLMs 

recommended in 2000 the use of 

Method 6 to determine visibility 

impacts from BART eligible sources. 

However, for any recent PSD 

application and BART modeling since 

2010, EPA has requested that Method 8 

be used for determining impacts on 

visibility at nearby Class I areas. 

The previously preferred Method 6 

simply computes background light 

extinction using monthly average 

relative humidity adjustment factors 

particular to each Class I area applied to 

background and modeled sulfate and 

nitrate. Six years after the development 

of Method 6 in 1999, EPA released 

enhancements to the background light 

extinction equations, which use the 

revised IMPROVE variable extinction 

efficiency formulation. These 

enhancements take into account the fact 

that sulfates, nitrates and organics and 

other types of particles have different 

light extinction coefficients. Also, the 

background concentrations at each Class 

I area have been updated by EPA to 

reflect natural background visibility 

condition estimates for each Class I area 

for each type of particle. Additionally, 

relative humidity adjustment factors 

have been tailored separately for small 

particles, large particles, and to account 

for sea salt background concentrations. 

These new enhancements to the 

calculation method, called Method 8, 

greatly improve the accuracy of the 

estimated visibility impact. Method 8 

was added to CALPOST in 2008 and 

was adopted as the preferred option for 

determining impacts on visibility by the 

FLMs in their ‘‘Federal Land Managers 

Air Quality Related Values Work Group 

Guidance Document’’ in 2010 (FLAG 

2010). The applicable background 

concentrations and relative humidity 

adjustment factors using Method 8 for 

each Class I area are identified in the 

FLAG 2010 document. 

Despite the update to Method 8 in 

2008 and the stated preference by the 

FLMs in 2010 to use Method 8, EPA 

conducted the Wyoming BART 

modeling in 2012 using the long 

outdated and scientifically inferior 

Method 6. EPA’s use of Method 6, and 

not Method 8, is arbitrary and 

capricious. 

Response: We agree that it is 

preferable to use Method 8 rather than 

Method 6 for evaluating visibility 

impacts based on the recommendation 

of the FLMs in FLAG 2010.120 The older 

CALPUFF version 5.711 that was 

adopted in the State’s original modeling 

protocol in 2006 did not have the option 

of using Method 8. In our previous 

modeling we adopted the State’s 

original protocol to maintain a 

consistent basis of comparison with the 

State’s modeling results. In this final 

action, we adopted an updated 

modeling protocol using the current 

regulatory version of the model, which 

allows the use of Method 8, and we 

used Method 8 for the analysis of 

visibility impacts. 

Comment: We received numerous 

comments that EPA incorrectly used the 

maximum annual visibility impacts 

occurring during any given year of the 

2001–2003 baseline period over which 

the Wyoming visibility models are run. 

Commenters asserted that standard 

practice has been, and continues to be, 

to average the results over the three year 

period as the three year average is a 

more robust value than the single year 

value used by EPA, and thus EPA 

should use longer term data. One 

commenter pointed out that consistent 

with the principle of using longer-term 

averages, baseline visibility conditions 

under the RHR are determined by taking 

the average degree of visibility 

impairment for the most and least 

impaired days for each of calendar years 

2000 through 2004, and averaging the 

five annual values. 

Response: We disagree with this 

comment. In our review of the 

CALPUFF modeling results presented 

by Wyoming, we cited the change in the 

maximum 98th percentile impact over 

the modeled three year meteorological 

period (2001–2003). As the 98th 

percentile value is intended to reflect 

the 8th high value in any year, it already 

eliminates seven days per year from 

consideration in order to account for 

short-term events, unusual 

meteorological conditions, and any 

over-prediction bias in the model. We 

also note that our approach is consistent 

with the method used by Wyoming in 

identifying subject-to-BART sources, 

where a source is exempt from BART 

only if the modeled 98th percentile 

change is less than 0.5 deciview at all 

Class I areas for each year modeled.121

That is, whether a source is subject to 

BART is dependent on the maximum 

98th percentile over the three year 

modeled meteorological period, not the 

average across the three year period. We 

find that it is reasonable to use the same 

approach when considering the 

visibility improvements associated with 

control options. Finally, we note that 

this approach is consistent with our 

consideration of visibility improvement 

in other actions, such as our FIP for 

Montana. 

Comment: EPA’s use of the maximum 

values in its BART NOX determinations 

for its regional haze FIP causes inflated 

visibility impacts and over-estimated 

improvements being used. For example, 

if EPA were to run its approved models, 

used its approved ammonia values for 

the western states, and used the average 

visibility impact over the three years 

rather than a maximum impact for a 

single year, the incremental visibility 

impact between installing LNB 

technology and SNCR at Wyodak and 

Dave Johnston Unit 3 drops to just 0.09 

deciview. Instead, EPA has used an 

improper evaluation to create an 

inflated visibility improvement of 0.15 

and 0.17 delta deciview to justify the 

installation of the SNCR. As a result, 

EPAs’ BART NOX evaluations are 

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invalid. The modeling results reported 

by Mr. Paine using the actual BART 

limits include values for each of the 

meteorological years 2001, 2002 and 

2003, as well as the average values for 

the three years. All of the values signify 

a negligible visibility improvement from 

SNCR. 

Response: We have addressed each 

aspect of this comment in separate 

responses to comments. In our previous 

proposal we performed CALPUFF 

model simulations consistent with the 

approach specified in the Wyoming 

protocol, but in this action we adopted 

updated model versions and used lower 

ammonia background concentrations 

that are consistent with monitoring data 

and IWAQM Phase 2 report. Regardless, 

as discussed in section IV, in 

consideration of our revised cost of 

compliance and visibility impact 

analyses, and of the remaining BART 

factors, we have changed our final NOX

BART determinations for both of the 

units in question. We are no longer 

requiring SNCR for either Wyodak or 

Dave Johnston Unit 4. 

Comment: EPA’s use of the 

cumulative deciview improvement from 

several Class I areas overestimates the 

visibility improvement which may 

reasonably be anticipated because 

visibility impacts from a BART source 

may occur on different days at each 

Class I area. Adding the numbers in 

Tables 47, 54, and 56 of EPA’s proposed 

regional haze FIP leads to the 

impression that a perceptible visibility 

improvement will occur, when in reality 

none of the modeled visibility 

improvements would be perceptible to 

the human eye. 

Response: We disagree with this 

comment. In evaluating the visibility 

improvement associated with various 

control options, EPA interprets the CAA 

to require consideration of visibility 

improvement at all impacted Class I 

areas. Consideration of improvement at 

multiple Class I areas, as opposed to just 

benefits at the most impacted Class I 

area, has often been described as 

‘‘cumulative visibility improvement.’’ 

Despite this terminology, however, an 

analysis of cumulative visibility 

improvement does not necessarily 

require that the deciview improvement 

at each area be summed together. While 

states or EPA are free to take such a 

quantitative approach, they are also free 

to use a more qualitative approach. 

Here, we chose to rely primarily on the 

visibility improvement at the most 

impacted Class I area, while also 

considering the number of additional 

Class I areas that would see 

improvement, as well as the level of 

improvement at each area. We did not 

expressly rely on a summation of 

visibility benefits across Class I areas, as 

we have done in other regional haze 

actions, although, as the commenter 

points out, this metric was included in 

some tables. Contrary to the 

commenter’s assertion, however, a 

summation of visibility benefits is not 

intended to suggest that individually 

imperceptible levels of improvement are 

somehow perceptible, but rather to 

provide a single metric that can 

simultaneously capture both the number 

of Class I areas affected and the 

magnitude of improvement at those 

areas for comparison purposes. 

Moreover, we note that visibility 

improvement does not need to be 

perceptible to be deemed significant for 

BART purposes. We have responded in 

more detail to concerns regarding 

perceptibility elsewhere in this 

document. 

Comment: The commenter states that 

EPA’s cumulative visibility analyses 

ignore the discretion given to states in 

70 FR 39107; Id. at 39123 (emphasis 

added); see also 77 FR 24768, 24774 

(Apr. 25, 2012) 

Response: As stated above, EPA 

primarily relied on the benefits at the 

area with the greatest visibility 

improvement from controls, but we also 

considered impacts and benefits at 

nearby areas included in the modeling 

analysis. The consideration of visibility 

benefits over multiple Class I areas is a 

useful metric that can further inform a 

BART determination. 

Comment: The BART rule provides no 

support for EPA’s ‘‘summation of 

cumulative impacts’’ approach. Rather, 

the BART rule makes clear that the 

initial focus is expected to be on the 

‘‘nearest Class I area’’ to the facility in 

question. 70 FR 39104, 39162 (Separt 6, 

2005). The BART rules indicate that it 

is appropriate to take account impacts at 

not only the nearest Class I area but also 

impacts at other nearby Class I areas, 

not for the purposing of summing 

impacts at all of those areas, but rather 

for the purpose of ‘‘determin(ing) 

whether effects at those (other) areas 

may be greater than at the nearest Class 

I area.’’ Id. The BART rule states: ‘‘If the 

highest modeled effects are observed at 

the nearest Class I area, you may choose 

not to analyze the other Class I areas any 

further as additional analyses might be 

unwarranted.’’ Id. 

Response: See our response to 

comments above. In addition, the BART 

Guidelines provide that states, or EPA 

in lieu of the state, have discretion on 

how to assess visibility impacts. 

Comment: The commenter states that 

the BART rule does not preclude a state 

from taking into account, as part of a 

BART assessment for a given facility, 

visibility impacts projected to occur in 

two or more Class I areas that are 

attributable to that facility’s emissions. 

However, nothing in the rules requires 

such an analysis, and such analyses are 

deceptive when used in a cumulative 

fashion. EPA did not have the authority 

to disapprove Wyoming’s visibility 

improvement analyses on the grounds 

that EPA prefers a different approach 

than the lawful and permissible 

approach taken by Wyoming. See Train 

v. Natural Res. Def. Council, Inc., 421 

U.S. 60, 79 (1975). 

Response: See our response to 

comments above and elsewhere in this 

document (e.g., Legal Issue section) 

regarding EPA’s oversight authority. 

Comment: EPA has improperly failed 

to account for the very few number of 

days of visibility impacts or the seasonal 

timing of when those few impacts occur. 

Response: EPA recognizes that the 

BART Guidelines allow states to 

consider the timing of impacts in 

addition to other factors related to 

visibility impairment. However, states 

are not required to do so, and EPA is not 

required to substitute a source’s desired 

exercise of discretion for that of the 

states. Furthermore, when promulgating 

a FIP, EPA stands in the shoes of the 

state. In that capacity, EPA is not 

required to consider the seasonality of 

impacts and has chosen not to do so 

here. Taking into account visitation 

contradicts the goal of the regional haze 

rule of improving visibility on the 20 

percent best and worst days. Indeed, 

EPA believes that the experiences of 

visitors who come to Class I areas 

during periods other than the peak 

visitation season are important and 

should not be discounted. 

Comment: A review of the unitspecific CALPUFF EPA modeling 

results developed for the Mount Zirkel 

Wilderness Area provides a vivid 

example of the over-estimation of 

visibility improvement that EPA is 

relying on to justify the installation of 

hundreds of millions of dollars in 

additional controls. The unit specific 

CALPUFF modeling would indicate that 

adding SCR to these units would 

improve visibility in Mount Zirkel by 

over seven deciviews. 

However, the monitored data from 

2001–2003 at Mount Zirkel tells a 

completely different story. This is the 

same time period used in the CALPUFF 

models to develop the deciview impacts 

for each Wyoming BART-eligible unit 

and to project the visibility 

improvements associated with the 

addition of control devices. 

Looking at the three-year average 

monitored results, and assuming that 

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122W.H. White, R.J. Farber, W.C. Malm, M. 

Nuttall, M.L. Pitchford, B.A. Schichtel, Comment 

on ‘‘Effect of coal-fired power generation on 

visibility in a nearby National Park (Terhorst and 

Berkman, 2010)’’, Atmospheric Environment 55 

(2012) 173–178. doi:10.1016/

j.atmosenv.2012.02.076. 

the nitrates associated with the 

emissions from all sources (not just the 

BART-eligible EGUs) are completely 

eliminated, only a 0.94 deciview 

improvement would be expected. EPA 

attempts to justify over a billion dollars 

in controls at eight PacifiCorp units by 

assuming more than seven deciviews of 

improvement could be obtained from 

these eight units when the actual 

monitored data indicates that only a 

0.94 deciview improvement would be 

possible if all nitrate was removed from 

all sources. In essence, EPA’s regional 

haze FIP fails to recognize that, given 

the monitored nitrate impacts, the 

modeled visibility impacts are 

obviously grossly exaggerated. 

Response: We agree with some of 

these concerns—that the original 

modeling performed by the State and 

EPA used a high background ammonia 

concentration and did not correct for 

ammonia limiting conditions. This 

particularly affected the model results 

in the western part of Wyoming and 

Class I areas such as Bridger Wilderness 

Area. 

We have addressed this concern by 

adopting a new modeling protocol that 

makes several improvements in the 

model results, including the use of the 

current regulatory version of the model, 

the use of Method 8 to assess visibility 

impacts, the use of lower background 

ammonia concentrations, and ammonia 

limiting correction for BART sources 

with multiple units. We note that the 

model overprediction in our reproposed modeling analyses occurred at 

Class I areas affected by BART sources 

in western Wyoming, in the region in 

which monitoring data showed strong 

seasonal variability in ammonia 

concentrations. In contrast, modeled 

nitrate impacts from BART sources in 

eastern Wyoming were significantly 

lower than observed nitrate 

concentrations at IMPROVE sites at 

Wind Cave and Badlands in western 

South Dakota. 

There are several factors that make it 

challenging to directly compare 

CALPUFF results to measured 

concentrations at IMPROVE monitoring 

sites at Class I areas. Most significantly, 

the monitor operates every third day, 

while the model predicts concentration 

each day. Moreover, modeled visibility 

impacts from multiple BART sources 

cannot be summed and directly 

compared to measured data as all BART 

sources are unlikely to have their largest 

impacts on the same Class I area on the 

same day. Additionally, the model 98th 

percentile impact should be compared 

to the maximum observed monitoring 

data because the highest 2% of model 

impacts are discarded to address 

concerns that the model can overpredict 

visibility impacts. 

Comment: The commenter cites a 

study by Terhorst and Berkman which 

compared CALPUFF model predicted 

impacts of the Mojave Power Station at 

the Grand Canyon to observed impacts 

after the facility was closed in 2005. The 

study concluded that there was virtually 

no evidence that the (Mojave) closure 

improved visibility in the Grand 

Canyon, and the commenter cites this 

conclusion as evidence of the 

unreliability of the CALPUFF model. 

Response: We disagree that the 

Mohave Power Plant study raises 

questions about CALPUFF’s reliability. 

The Nevada Division of Environmental 

Protection performed CALPUFF 

modeling to estimate the contribution of 

the Mohave Power Plant to visibility 

impairment at Grand Canyon National 

Park. Consistent with the BART 

Guidelines, the State used the CALPUFF 

model to evaluate the Mohave Power 

Plant contribution to visibility 

impairment relative to natural visibility 

conditions. Subsequently, after the 

Mohave Power Plant ceased operating, 

Terhorst and Berkman analyzed changes 

in monitored sulfate concentrations at 

the Grand Canyon and calculated the 

visibility impacts of those changes 

relative to current degraded visibility 

conditions. Terhorst and Berkman 

incorrectly concluded that the State’s 

previous CALPUFF modeling 

overpredicted the Mohave Power Plant 

visibility impacts because Terhorst and 

Berkman failed to compare their results 

to natural visibility conditions. EPA 

considered and rejected comments on 

the proposed BART Guidelines that 

visibility impacts should be evaluated to 

relative to current degraded visibility 

conditions and concluded that ‘‘[u]sing 

existing conditions as the baseline for 

single source visibility impact 

determinations would create the 

following paradox: the dirtier the 

existing air, the less likely it would be 

that any control is required.’’ (70 FR 

39124). Because Terhorst and Berkman 

failed to compare observed changes in 

sulfate concentration to natural 

visibility conditions, their analysis does 

not support the commenter’s statement 

that CALPUFF is unreliable. This flaw 

in their analysis has also been 

recognized in a paper that responded to 

their analysis.122 Finally, as presented 

above, the use of the CALPUFF model 

for regional haze is a settled manner for 

which the time for judicial review has 

passed. 

Comment: The commenter states that 

EPA’s own studies document that 

CALPUFF overstates results and cites a 

May 2012 EPA sponsored study of 

CALPUFF that found ‘‘the current and 

past CALPUFF model performance 

evaluations were consistent with 

CALPUFF tending to overestimate the 

plume maximum concentrations and 

underestimate plume horizontal 

dispersion.’’ 

Response: In the BART Guidance, 

EPA recognized concerns that CALPUFF 

can overpredict visibility impacts in 

some cases, and therefore, as explained 

above, adopted the use of the 98th 

percentile modeled impact, rather than 

the maximum modeled impact, to 

address this concern. 

Comment: EPA appears to take 

contrary positions in Oklahoma, where 

it modeled all visibility impairing 

pollutants together, and Wyoming, 

where EPA said that, based on the 

State’s modeling, EPA ‘‘could not 

ascertain what the visibility 

improvement would be from an 

individual NOX or PM control option.’’ 

Response: It appears that the 

commenter has confused (1) whether all 

pollutants were modeled together; and 

(2) whether all emission reductions 

were modeled together. All pollutants 

were modeled together both in modeling 

performed by Wyoming and by EPA for 

BART sources in Wyoming and 

Oklahoma, consistent with IWAQM 

Phase 2 report recommendations and 

with the State of Wyoming modeling 

protocol. The additional modeling 

performed by EPA was designed to 

evaluate visibility improvements from 

certain emissions reduction 

technologies; specifically, to compare 

the incremental benefits of SCR and 

SNCR. Each of these model simulations 

by EPA also included all other visibility 

impairing pollutants, so the approach 

used by EPA in Wyoming and 

Oklahoma is consistent. 

Comment: EPA found that SCR 

provided only a 0.36 delta deciview 

incremental visibility improvement for 

Dave Johnston Unit 3, using EPA 

modeling, with an incremental cost of 

$7,163.00 per ton. 78 FR 34777–34778. 

EPA failed to justify in its proposed rule 

how a 0.36 delta deciview 

improvement, or approximately onethird that humanly detectible, justifies 

the tremendous cost of SCR. Likewise, 

EPA found that installing SNCR at Dave 

Johnston Unit 4 results in an 

incremental 0.11 delta deciview 

improvement over Wyoming’s BART 

determination at an incremental cost of 

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5122 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

$4,655. 78 FR 34781–34782. The alleged 

incremental visibility benefit of 

installing SNCR at Wyodak is 0.12 delta 

deciview at an incremental cost of 

$3,725 per ton. 78 FR 34784–34785. 

EPA provides no justification for 

requiring such tremendous costs for 

such an inconsequential visibility 

improvement that likely falls within 

CALPUFF’s margin of error. EPA’s 

modeling approaches are inconsistent 

because EPA has determined in other 

states that visibility improvements 

greater than those used to justify SNCR 

at Wyodak are too small or 

inconsequential to justify additional 

pollution controls. See 77 FR 24794 

(0.27 deciview improvement termed 

‘‘small’’ and did not justify additional 

pollution controls in New York); 77 FR 

11879, 11891 (0.043 to 0.16 delta 

deciview improvements considered 

‘‘very small additional visibility 

improvements’’ that did not justify NOX

controls in Mississippi); 77 FR 18052, 

18066 (agreeing with Colorado’s 

determination that ‘‘low visibility 

improvement (under 0.2 delta 

deciview)’’ did not justify SCR for 

Comanche units)). Tellingly, the ‘‘low 

visibility improvements’’ that Colorado 

found at the Comanche units not to 

justify post-combustion NOX controls, 

as agreed to by EPA, were 0.17 and 0.14 

delta deciview. 77 FR 18066. In 

Montana, where EPA issued a regional 

haze FIP directly, it found that a 0.18 

delta deciview improvement to be a 

‘‘low visibility improvement’’ that ‘‘did 

not justify proposing additional 

controls’’ for SO2 on the source. 77 FR 

23988, 24012. Here, EPA’s actions 

requiring additional NOX controls based 

on little to no additional visibility 

improvement are arbitrary and 

capricious, especially when EPA did not 

require additional NOX controls in other 

states based on similar visibility 

improvements. This is particularly true 

in Montana where EPA had direct 

responsibility for the regional haze 

program. 

Response: We disagree that visibility 

improvements at Dave Johnston Unit 3 

and Wyodak are ‘‘too small or 

inconsequential to justify additional 

pollution controls.’’ While the visibility 

benefits at these units are less than what 

is generally considered perceptible (1.0 

deciview), they are not so low as to 

preclude selection of the associated 

controls without any consideration of 

the remaining BART factors. The BART 

Guidelines are clear that states should 

consider visibility impacts that are less 

than perceptible: ‘‘Even though the 

visibility improvement from an 

individual source may not be 

perceptible, it should still be considered 

in setting BART because the 

contribution to haze may be significant 

relative to other source contributions in 

the Class I area. Thus, we disagree that 

the degree of improvement should be 

contingent upon perceptibility. Failing 

to consider less-than-perceptible 

contributions to visibility impairment 

would ignore the CAA’s intent to have 

BART requirements apply to sources 

that contribute to, as well as cause, such 

impairment.’’ 70 FR 39129. When the 

visibility improvements are considered, 

we continue to find that this level of 

improvement, when considered along 

with the other statutory factors, justifies 

the selected BART controls. 

Finally, regarding commenter’s 

assertions that we are being 

inconsistent, because the commenter is 

only specific about visibility 

improvement, it is not possible for EPA 

to address in this response any specific 

concerns. As articulated in our 

proposed rulemakings and further 

explained in our responses to other 

comments, EPA’s partial approval and 

partial disapproval of the Wyoming 

Regional Haze SIP is consistent with the 

CAA, the RHR, BART Rule, and EPA 

guidance. Our determinations 

considered all five factors, not just 

visibility improvement. 

Comment: Although it is true that 

Wyoming did not model the visibility 

impact of SNCR, that fact is no 

justification for disapproving 

Wyoming’s BART. Nothing in the BART 

Guidelines or Wyoming’s BART 

Modeling Protocol demands modeling 

of SNCR, and EPA points to nothing in 

either document that requires modeling 

of SNCR. 

Response: We disagree with this 

comment. The BART selection process 

requires a comparison between all 

technically feasible control options, not 

the evaluation of individual control 

technologies in isolation. While the 

BART Guidelines do not specify the 

order in which control options must be 

evaluated (e.g., beginning with the most 

stringent or beginning with least 

stringent control), they do specify that 

the CAA factors must be considered for 

all options: ‘‘In the final guidelines, we 

have decided that States should retain 

the discretion to evaluate control 

options in whatever order they choose, 

so long as the State explains its analysis 

of the CAA factors.’’ 70 FR 39130. The 

only exceptions are ‘‘. . . if you find 

that a BART source has controls already 

in place which are the most stringent 

controls available . . .’’, or ‘‘. . . . if a 

source commits to a BART 

determination that consists of the most 

stringent controls available . . .’’ 70 FR 

39165. In these situations, it is not 

necessary to complete an analysis of all 

five BART factors. Therefore, because 

neither of these criteria was met, the 

State was required to perform an 

analysis of all five BART factors for all 

technically feasible control options. As 

such, the State’s failure to consider the 

visibility impacts of SNCR did in fact 

serve as appropriate grounds for EPA’s 

disapproval of Wyoming’s BART 

determination. 

Comment: EPA modeling shows no 

significant visibility improvement from 

SNCR and without a significant 

improvement there can be no 

justification for disapproving the State’s 

BART for Laramie River Station, and, to 

the contrary, EPA’s modeling supports 

Wyoming’s rejection of SNCR and 

choice of LNB/OFA because SNCR 

provides negligible visibility 

improvement. 

Response: We have required new 

LNBs with OFA and SCR for the 

Laramie River Station, not new LNBs 

with OFA and SNCR, which is the 

control option addressed by the 

commenter. Accordingly, we do not find 

that the comment is relevant to our 

action. Our revised modeling shows that 

the visibility benefit of new LNBs with 

OFA and SCR for Laramie River Units 

1–3 is 0.57 deciviews, 0.53 deciviews, 

and 0.52 deciviews, respectively. We 

continue to find that the visibility 

benefit, when taking into consideration 

the remaining BART factors, justifies 

installation of new LNBs with OFA and 

SCR. 

Comment: Basin Electric submitted 

results based on more accurate 

modeling than EPA, which show that 

actual visibility improvement from 

SNCR would be substantially lower than 

assumed by EPA. There is no 

justification for disapproving 

Wyoming’s BART based on a modeled 

visibility improvement that is such a 

small fraction of what is humanly 

perceptible. 

Response: As described in response to 

other comments, we agree that the 

original modeling protocol adopted by 

the State was inconsistent with the 

BART Guidelines, IWAQM Phase 2 

report and newly available ambient 

monitoring data, and in our revised 

modeling we adopted several of the 

changes recommended by this 

commenter, including the use of lower 

background ammonia concentration, a 

correction for ammonia limiting 

conditions for multiple units located at 

a single BART source, and the use of 

Method 8 for the evaluation of visibility 

impairment. However, even using these 

model options, we still found significant 

visibility impacts for SCR control at 

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Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 5123 

Laramie River. Our results are generally 

consistent with the modeling results 

submitted by the commenter which also 

show significant impacts. As described 

in another response, while the visibility 

benefits at each of these units 

individually are less than what is 

generally considered perceptible (1 

deciview), they are not so low as to 

preclude selection of the associated 

controls without any consideration of 

the remaining BART factors. The BART 

Guidelines are clear that States should 

consider visibility impacts that are less 

than perceptible because these sources 

may still contribute to cumulative 

visibility impairment. 

Comment: EPA did not assert a failure 

to model NOX impacts separately was a 

flaw in the Laramie River Station 

modeling, although EPA did identify 

this as a flaw in PacifiCorp modeling. 

Response: We agree that the State 

evaluated NOX impacts separately for 

the control technologies that the State 

included in its modeling, however, the 

State did not evaluate SNCR. The other 

deficiencies in the State’s visibility 

analysis, including the failure to 

consider the visibility impacts of SNCR, 

were appropriate grounds to disapprove 

the State’s BART determination. 

Comment: The Wyoming modeling 

did in fact isolate the impact on 

visibility for NOX control alternatives. 

Wyoming held SO2 and PM emissions 

constant at baseline levels while 

modeling varying NOX emission rates 

for each of the NOX control options. 

Response: We agree with this 

comment. Nonetheless, as stated above, 

the other deficiencies in the State’s 

visibility analysis, which were 

inconsistent with the BART Guidelines, 

including the failure to consider the 

visibility impacts of SNCR, were 

appropriate grounds to disapprove the 

State’s BART determination. 

Comment: EPA claims that Wyoming 

modeled the wrong emission rates. EPA 

notes that in its cost analysis it 

calculated a new removal efficiency for 

NOX control options that was different 

than the removal efficiency calculated 

by Wyoming, and claims that visibility 

modeling should have used the EPA 

efficiencies. However, EPA does not 

explain how modeling with the different 

removal efficiencies conflicts with the 

BART Guidelines or the CAA. As to 

SNCR, EPA argues that the State 

assumed a higher removal efficiency 

and thus, paradoxically, modeling with 

the State’s removal assumption would 

yield greater visibility improvement 

than modeling with EPA’s values. No 

such modeling was done, however. The 

State did no modeling for SNCR, so the 

State’s removal efficiency was never 

modeled. It is an enigma how EPA can 

disagree with modeling with the 

different SNCR removal values when 

such modeling was never performed. 

Response: We disagree with this 

comment. The BART Guidelines are 

clear on how removal efficiencies 

should be considered in the visibility 

evaluation: ‘‘Post-control emission rates 

are calculated as a percentage of precontrol emission rates. For example, if 

the 24-hr pre-control emission rate is 

100 lb/hr of SO2, then the post control 

rate is 5 lb/hr if the control efficiency 

being evaluated is 95 percent.’’ 70 FR 

39170. Therefore, because the control 

efficiencies assumed by the State 

differed from those found by the EPA, 

they affected the calculation of postcontrol emission rates for modeling 

purposes (and thereby the consideration 

of visibility impacts). 

In regard to SNCR, as conceded by the 

commenter, the State did not provide 

the visibility impacts associated with 

the control option. As discussed 

elsewhere, failure to assess the visibility 

impacts of a technically feasible control 

option is in clear conflict with the 

requirements of the CAA and BART 

Guidelines. This failure alone, 

regardless of the control efficiency 

assumed for SNCR, was sufficient 

grounds for us to reject the State’s BART 

determination. Moreover, the incorrect 

removal efficiency for SNCR assumed 

by the State adversely affected their 

analysis of cost of compliance, another 

statutorily required BART factor. 

To put it simply, the State failed in 

the first instance by not considering the 

visibility improvement of SNCR as 

required by the CAA and BART 

Guidelines. When EPA corrected this 

deficiency by performing the modeling 

ourselves, it was necessary for us to 

correct the removal efficiency of SNCR 

(as discussed in response to other 

comments). 

Comment: The State assumed that 

SCR would reduce NOX emissions from 

0.21 lb/MMBtu to 0.07 lb/MMBtu—a 

reduction of 0.14 lb/MMBtu. EPA 

assumes SCR would reduce NOX

emissions from 0.19 lb/MMBtu to 0.05 

lb/MMBtu, a reduction of the same 0.14 

lb/MMBtu. All other things being held 

constant, the 0.14 lb/MMBtu reduction 

will in both cases yield an identical 

reduction in the visibility impairing 

concentration of nitrate particulate in a 

Class I area. 

Response: We disagree with this 

comment. The CALPUFF model 

simulations estimate the visibility 

impairment attributed to the emissions 

in each control scenario, not the relative 

reduction in different control scenarios. 

Therefore, an emissions rate of 0.07 lb/ 

MMBtu will have 40% greater total 

emissions and a larger visibility impact 

than an emissions rate of 0.05 lb/

MMBtu. 

Comment: EPA argues that Wyoming 

should have used a baseline of the 

maximum 24-hour average NOX

emission rate during the baseline years 

of 2001–2003, and instead used an 

annual average baseline rate. The BART 

Guidelines do not mandate the use of 

the 24-hour maximum but, rather, 

‘‘recommend that the State use the 

highest 24-hour average actual emission 

rate’’ and that the states should have 

flexibility when evaluating the fifth 

statutory factor. The BART Guidelines 

by their express terms authorize states 

to use baseline emissions other than the 

24-hour maximum rate. Use of the 24- 

hour maximum baseline is not 

mandatory, and not using that baseline 

is not a failure to comply with any 

requirement in the Guidelines. EPA 

itself used annual average pre-control 

and post-control emission rates to 

model visibility impacts in its Nevada 

FIP rulemaking. 

Response: We disagree with this 

comment. As stated in the preamble to 

the BART Guidelines, ‘‘the emissions 

estimates used in the [visibility] models 

are intended to reflect steady-state 

operating conditions during periods of 

high capacity utilization.’’ 70 FR 39120. 

As such, the BART Guidelines 

recommend excluding emissions during 

periods of start-up, shutdown, or 

malfunction or estimating visibility 

impacts based on a source’s allowable 

emissions as this could inflate the 

visibility impacts of a source. Rather, for 

sources such as power plants where 

States have information on a source’s 

daily emissions, the BART Guidelines 

explains that an emission rate based on 

a source’s maximum actual emissions 

over a 24-hour period is an appropriate 

gauge of a source’s potential impact as 

it ensures that peak emission conditions 

are reflected but would be unlikely to 

lead to an overestimation of a source’s 

potential impacts. Id. The BART 

Guidelines state that in developing a 

modeling protocol, States should ‘‘[u]se 

the 24-hour average actual emission rate 

from the highest emitting day of the 

meteorological period modeled (for the 

pre-control scenario).’’ Id. and 70 FR 

39170. 

Wyoming did not do this. Instead, in 

assessing the improvement in visibility 

associated with the use of controls in its 

BART determinations, Wyoming used 

the visibility modeling performed by 

PacifiCorp and Basin Electric for their 

facilities. Although these companies 

used very different approaches to 

estimating the baseline emission rate— 

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5124 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

123Wyoming Department of Environmental 

Quality Air Quality Division BART Application 

Analysis AP–6047, Table 16, May 28, 2009. 

124Air Quality Modeling Protocol: Wyoming 

Regional Haze Federal Implementation Plan, U.S. 

EPA, Table B.9, January, 2014. 

neither of which used the 24-hour 

average actual emission rate—the State 

accepted the visibility modeling done 

by both and submitted the results in the 

Wyoming SIP. Even if the commenter 

were correct that the approach in the 

BART Guidelines is only recommended, 

the commenter has not provided any 

explanation as to why the disparate 

approaches used in the Wyoming SIP 

were appropriate for estimating the 

degree of visibility improvement 

associated with controls. Wyoming 

similarly provided no explanation as to 

why the varying approaches adopted by 

Basin Electric and PacifiCorp were 

appropriate for assessing visibility 

improvement. Moreover, the commenter 

has not established that the baseline 

emission rates used by Wyoming would 

accurately reflect visibility impacts 

associated with steady-state operating 

conditions during periods of high 

capacity utilization. Obviously, baseline 

emission rates reflecting periods of 

relatively lower capacity utilization 

would tend to underestimate peak 

visibility impacts. Consider for example 

the baseline emission rate used for 

Laramie River Unit 1. There, the State 

used a daily emission rate equating to 

6,320 tons per year,123 while, based on 

actual emissions data, the EPA used a 

daily rate equating to 8,786 tons per 

year.124 Thus, the rate used by the State 

reflects a period of considerably lower 

capacity utilization that would therefore 

tend to underestimate peak impacts. 

Regarding the emissions rates used in 

the Nevada regional haze SIP, the State 

did not use the 24-hour average of 

actual emissions from the highest 

emitting day in its BART determination 

for Reid Gardner Generating Station. 77 

FR 50936, 50944 (Aug. 23, 2012). As 

part of its review of the Nevada SIP, 

EPA performed new visibility modeling. 

In that modeling exercise, EPA used 

Nevada’s emission rates based on 

annual averages. Please refer to a related 

comment and response in the final 

action for that rule for a full discussion. 

See 77 FR 50944). Following our review 

of comments in that rulemaking— 

including comments that we should 

have used the Guidelines maximum 24- 

hour average of emissions in our 

visibility modeling—we scaled our 

estimates of the visibility impacts of 

controls based on the source’s emissions 

using the Guidelines maximum 24-hour 

average. We took these scaled visibility 

impacts into account in our final action. 

Id. at 50945. 

Comment: EPA did not use the 24- 

hour maximum rate for the modeling it 

performed in 2012. As noted in Section 

VIII.C, it used the same baseline 

emission rates used by the State. EPA– 

R08–OAR–2012–0026–0037. EPA did 

not find the State’s approach was a 

violation of the BART Guidelines or was 

a reason to disapprove the State’s 

modeling or BART determination. 

Having sanctioned the use of a different 

baseline then, EPA may not now claim 

it violates the BART Guidelines or a 

ground for disapproving the State’s 

modeling or BART determination. 

Response: We agree that we did not 

use the 24-hour maximum [actual] 

emission rates for modeling purposes in 

our original proposed rule published in 

2012. However, we did not finalize that 

rule, at least in part, for the very reason 

that the baseline emission rates 

calculated by Wyoming, and 

subsequently used by EPA in the 2012 

proposed rule, were inconsistent with 

the BART Guidelines. As we never 

finalized the original rule, we disagree 

with the commenter’s suggestion that 

we somehow sanctioned Wyoming’s 

approach. A proposed rule does not 

represent final agency action. 

Comment: The maximum 

improvement modeled by EPA that 

would be achieved at any Class I area by 

adding SCR to the existing new LNB 

plus OFA is 0.5 delta deciview. This is 

below the 1.0 delta deciview level often 

cited as the lowest level of change that 

is humanly perceptible. For EPA to 

propose disapproval of the State’s BART 

based on an imperceptible improvement 

is to propose disapproval based on a 

nonmaterial factor. 

Response: We disagree that the 

visibility improvements for Laramie 

River or Jim Bridger are de minimis or 

too small to just justify the expense of 

requiring controls. As discussed in 

response to another comment, the BART 

Guidelines are clear that it is not 

necessary for the visibility improvement 

of a particular control option to be 

above the perceptible threshold. The 

regional haze program is premised on 

the fact that numerous sources are 

contributing to visibility impairment 

and numerous sources will need to 

reduce emissions in order to improve 

visibility. We continue to find that this 

level of improvement, when considered 

along with the other statutory factors, 

justifies the selected BART controls. 

Comment: The commenter states that 

EPA’s modeled visibility improvement 

overstates the improvement that would 

actually be achieved. The commenter 

submitted new modeling showing that 

the visibility improvement from further 

reductions of NOX emissions would be 

much smaller than that predicted by 

EPA. AECOM corrected four of the flaws 

in EPA’s modeling and re-ran 

CALPUFF. The commenter submitted 

refined modeling with four adjustments: 

1. The use of seasonal background 

ammonia concentrations; 2. Modeling of 

all units together with correction for 

ammonia limited conditions; 3. Use of 

a post-control emission rate of 0.07 lb/ 

MMBtu, consistent with EPA’s proposed 

emission limit; and 4. The use of 

CALPOST Method 8. AECOM’s revised 

modeling was identical to EPA’s in all 

other respects. The refined modeling 

predicted that the incremental visibility 

benefit of SCR at each of Laramie River 

Units 1, 2 and 3 would range between 

0.20–0.24 delta deciview at either 

Badlands or Wind Cave National Park. 

The actual visibility improvement of 

SCR would be even less than predicted 

by the refined modeling because 

CALPUFF is known to substantially 

overstate nitrate haze. 

Response: We agree that our proposed 

modeling was inconsistent with the 

BART Guidelines, IWAQM Phase 2 

report and monitored data, and in our 

revised final modeling we adopted 

several of the changes recommended by 

this commenter, including the use of 

lower background ammonia 

concentration, a correction for ammonia 

limiting conditions for multiple units 

located at a single BART source, and the 

use of Method 8 for the evaluation of 

visibility impairment. However, even 

using these less conservative model 

options, we still found significant 

visibility impacts for SCR control at the 

Basin Electric Laramie River EGUs. We 

did not use the seasonal background 

ammonia concentration proposed by the 

commenter because we did not have 

sufficient ambient monitoring data to 

determine the seasonal background 

concentrations in eastern Wyoming. 

Comment: The commenter states that 

nitrate haze occurs primarily in the 

winter when few visitors are present in 

Class I areas. During the peak summer 

visitation period, the impact of wildfires 

would overwhelm any marginal 

visibility improvement that might be 

achieved by SCR. The commenter cites 

an EPA report that stated ‘‘[A] all else 

being equal, impairment from 

anthropogenic sources is considerably 

more objectionable during times of the 

year with greatest visitor attendance 

(e.g., summer). Visibility objectives 

might, therefore, be stated in terms of 

acceptable frequency distributions of 

visibility (e.g., contrast) over the course 

of a year.’’ Source: Report to Congress 

under CAA Section 169A(a)(3). The 

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Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 5125 

125Levine et al., (1980) The Vertical Distribution 

of Tropospheric Ammonia, Geophys. Res. Letters, 

vol. 7, No. 5, 17–32. 

126Chen et al., A Pilot Monitoring Study of 

Atmospheric NHX at Selected IMPROVE sites 

AWMA Aerosol and Atmospheric Optics, Visibility 

& Air Pollution Conference, September 24–28, 2012, 

Whitefish, MT. 

commenter states that these factors 

further support Wyoming’s decision to 

reject SCR and SNCR as BART. These 

technologies would not improve 

visibility on the worst haze days 

because Laramie River doesn’t 

contribute to haze on those days, and 

any slight visibility improvement would 

occur in the winter season when few 

visitors enter the Class I areas. 

Wyoming’s decision to reject SCR as 

BART is therefore reasonable and 

complies with the CAA. 

Response: As discussed in response to 

another comment, EPA agrees that 

nitrate impacts are more dominant in 

the winter. Nonetheless, daily nitrate 

impacts from April through October are 

not trivial. EPA also agrees that the 

BART Guidelines allow states to 

consider the timing of impacts in 

addition to other factors related to 

visibility impairment. However, states 

are not required to do so, and EPA is not 

required to substitute a source’s desired 

exercise of discretion for that of the 

states. Furthermore, when promulgating 

a FIP, EPA stands in the shoes of the 

state. In that capacity, EPA is not 

required to consider the seasonality of 

impacts and has chosen not to do so 

here. Taking into account visitation 

contradicts the goal of the regional haze 

rule of improving visibility on the 20 

percent best and worst days. Indeed, 

EPA believes that the experiences of 

visitors who come to Class I areas 

during periods other than the peak 

visitation season are important and 

should not be discounted. 

Comment: We received comments 

that our FIP was not warranted because 

the cause of visibility impairment 

during the times of peak visitation was 

wildfires and thus does not justify the 

control of NOX from stationary sources. 

Response: See response above. 

Comment: Ammonia levels at the 

altitude of the plume would be lower 

than the reported surface level ammonia 

concentrations, so less ammonia would 

be available to form visibility-impairing 

nitrate. 

Response: We disagree that there is 

compelling evidence that background 

ammonia levels are significantly 

different at the altitude of the plume 

compared to the surface. While there are 

limited studies showing vertical 

gradients of ammonia in the 

troposphere,125 these studies do not 

show a strong gradient within the 

planetary boundary layer where the 

plume is typically located. Moreover, as 

discussed in the response to another 

comment, it is necessary to evaluate the 

combined concentrations of gas 

ammonia and particulate ammonium to 

estimate the background ammonia level, 

so vertical gradients in measured 

ammonia alone are not sufficient to 

specify the vertical gradient in 

background ammonia. It is possible that 

decreasing temperature with altitude 

could affect the thermodynamic 

equilibrium between gas ammonia and 

particulate ammonium and that this 

could contribute to observed vertical 

gradients in ammonia. It is also possible 

that dry deposition of ammonia at the 

surface could create a negative vertical 

gradient in ammonia near the surface. 

We recognize that there are limited 

measurement studies available for total 

gas ammonia and particulate 

ammonium, and as a result there is 

uncertainty in the estimate of 

background ammonia. Given this 

uncertainty, we believe it is appropriate 

to rely on measurement studies of total 

gas ammonia and particulate 

ammonium when available and reliable 

as explained elsewhere in this 

document (along with the IWAQM 

Phase 2 report default values), and to 

rely on the IWAQM Phase 2 report 

where monitoring data are not available. 

Comment: The commenter states that 

inventories show very low ammonia 

concentrations in the corridors between 

Laramie River Station and the relevant 

Class I areas. 

Response: We disagree with the 

commenter’s assertions. We note that 

there is large uncertainty in estimates of 

ammonia emissions inventories that are 

based on source activity data and 

emissions factors. Moreover, even when 

more certain estimates of ammonia 

emissions are available, it is not 

possible to estimate ambient ammonia 

concentrations based on emissions 

inventory data alone. An estimate of 

ambient ammonia levels would require 

an evaluation of modeled emissions 

data and the effects of transport, 

dispersion and removal of ambient 

ammonia. Direct measurements of 

ambient concentrations of gas ammonia 

and particulate ammonium provide a 

more reliable estimate of background 

ammonia than do model simulations of 

the emissions, transport, dispersion and 

removal of ammonia. 

Comment: The commenter states that 

reliable ammonia measurements from 

the IMPROVE monitor located in the 

Wind Cave National Park were 

published in September 2012. Chen et 

al, available at AECOM Report. This 

monitor provides actual ground level 

ammonia data that is representative of 

the Class I areas that are relevant to 

Laramie River Station. AECOM Report 

at 4. EPA has given no explanation for 

its assumption of a constant 2.0 ppb 

background concentration in this case. 

Response: We evaluated the ammonia 

and ammonium monitoring data 

submitted by the commenter in Exhibit 

6, which is an extended abstract 

presented at the 2010 conference in 

Whitefish, MT.126 The data are from a 

pilot study conducted from April 2011 

to January 2012 designed to measure 

total NHX as the sum of ammonia and 

particulate ammonium at 9 IMPROVE 

sites. The pilot study includes data for 

IMPROVE monitoring sites at Wind 

Cave and Rocky Mountain National 

Park, which are Class I areas for which 

we evaluated visibility impacts in this 

action. We note that the pilot study data 

are for less than one full year and are 

plotted in Figure 1 of the report as 

monthly average concentrations. The 

measured values of NHX are not 

reported, but the plot does show 

seasonal variation in NHX

concentrations, as expected, with higher 

NHX concentrations in summer and 

lower concentrations in winter. Annual 

average NHX concentrations cannot be 

estimated from the plot itself, but they 

appear to be approximately consistent 

with the default IWAQM ammonia 

background concentration of 0.5 ppb for 

forested areas. Given that both the 

Rocky Mountain and Wind Cave Class 

I areas have significant forest cover, the 

measurements in the pilot study appear 

to be consistent with the IWAQM Phase 

2 report. 

Measurements of NHx are not reported 

for Badlands National Park, which is a 

mix of bare rock and mixed-grass prairie 

ecosystems. Based on the IWAQM Phase 

2 report, default background ammonia 

concentrations in the range of 1 to 10 

ppb at 20 degrees Celsius would be 

appropriate for this region. We reviewed 

the ambient ammonia monitoring data 

on which the IWAQM Phase 2 report 

was based, and the data for grasslands 

were largely based on measurements at 

Pawnee National Grassland, where 

average ammonia levels in summer were 

10 ppb. Because the Pawnee National 

Grassland is located close to large 

agricultural and livestock ammonia 

sources in eastern Colorado, it is 

uncertain if the same ammonia levels 

would be appropriate for the more 

Badlands area. Therefore, we selected a 

background ammonia concentration of 1 

ppb for CALPUFF modeling of BART 

sources that impact the Wind Cave and 

Badlands Class I areas. 

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5126 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

127CDPHE, Ibid. 

128 IWAQM, page 14 and page 21 

Comment: The commenter states that 

if EPA uses the maximum 24-hour NOX

emissions rate when modeling baseline 

visibility impacts, it should also use the 

maximum 24-hour SO2 and PM10

emissions rates for the baseline. NOX

competes with SO2 for ammonia to 

make either ammonium nitrate or 

ammonium sulfate. Setting the SO2

baseline rate at a low concentration 

relative to NOX skews the model to 

predict the formation of more 

ammonium nitrate and less ammonium 

sulfate. This magnifies the modeled 

benefits of reducing NOX emissions. 

Response: We agree that we did not 

use the maximum [actual] 24-hour 

emission rates for SO2 and PM10 as we 

did for NOX. However, we have not 

found based on our analysis, and the 

commenter has not established, that 

doing so had any material impact on the 

modeled benefits associated with NOX

controls. The BART sources in 

Wyoming that are covered in this action 

are subject-to-BART only for NOX and 

PM. In addition, we considered 

comments on, but did not question the 

validity of the State’s BART analyses for 

PM. In fact, as explained in detail 

elsewhere in this document, with 

respect to the State’s PM BART 

determinations, the State’s SIP and 

existing information was adequate to 

find that the PM BART determinations 

were reasonable. Accordingly, the 

purpose of our modeling effort was to 

identify the visibility improvement 

associated with NOX controls, not SO2

or PM controls. And so, in evaluating 

the visibility of NOX controls, we held 

the SO2 and PM emissions constant at 

the rate associated with the ‘‘committed 

controls’’ identified by the State. 

Therefore, even if there was a 

discernible impact on the modeled 

visibility benefit of NOX controls related 

to our treatment of modeled emission 

rates for SO2 and PM, it would be 

common to all of the modeled NOX

control scenarios and would not have 

favored one control option over another. 

Comment: The visibility improvement 

from SCR will be much less than EPA 

claims. The modeling preformed by 

AECOM and Wyoming produced similar 

results, and both predicted much less 

visibility improvement than EPA. 

Response: The modeling performed 

by Wyoming used the 2 ppb background 

concentration that was established in 

the State’s protocol, and this resulted in 

model visibility impacts that were 

significantly greater than those 

estimated by AECOM in its modeling 

using lower, seasonally varying 

background ammonia concentrations. 

The ammonia concentrations in ppb 

used in the AECOM modeling for the 

months of January December were as 

follows: 0.3, 0.9. 0.9, 1.0, 1.0, 2.0, 2.0, 

1.0, 0.8, 0.8, 0.6, and 0.3. We note that 

our modeling results in our original 

proposal also used the State’s protocol, 

and our model results were identical to 

the State’s modeling results for the 

emissions scenarios that both the State 

and EPA evaluated. The EPA modeling 

results in our revised proposal showed 

larger visibility impacts because we 

corrected the baseline emissions rates to 

make the emissions consistent with the 

BART Guidance. In the new modeling 

results that we performed using our 

revised final EPA Protocol and included 

in this action, we used a model 

configuration that is generally 

consistent with modeling submitted by 

the commenter. The revisions to the 

protocol include reduced background 

ammonia, correction for ammonia 

limiting conditions, updated regulatory 

versions of the model, and the use of 

Method 8. The commenter did not 

submit model results for all emissions 

scenarios in a format that can be directly 

compared to our tabulated model 

results, but our revised model results in 

this action appear to be generally 

consistent with the commenter’s model 

results, and these results do show that 

SCR at Basin Electric Laramie River has 

appreciable visibility benefit at the 

Wind Cave and Badlands Class I areas. 

Comment: The commenter states that 

the version of CALPUFF used by 

Wyoming and EPA (version 5.711a) 

relies on simplified chemistry 

algorithms that overstate nitrate 

formation and overpredict visibility 

impacts, and that EPA acknowledges 

that ‘‘the simplified chemistry in the 

[CALPUFF] model tends to magnify the 

actual visibility effects of [a] source.’’ 70 

FR 39121. Papers by Morris et al. and 

Karamchandani et al. show that 

CALPUFF chemistry overpredicts 

nitrates by a factor of 2-to-4 times in 

winter. 

Response: As described in responses 

to other comments and in our modeling 

protocol, EPA used the currently 

approved CALPUFF version 5.8 for 

modeling used in this action. EPA has 

acknowledged in the BART Guidelines 

that there is uncertainty in the 

CALPUFF modeled visibility impacts. 

EPA recognized the uncertainty in the 

CALPUFF modeling results when EPA 

made the decision, in the final BART 

Guidelines, to recommend that the 

model be used to estimate the 98th 

percentile visibility impairment rather 

than the highest daily impact value. 

While recognizing the limitations of the 

CALPUFF model in the BART 

Guidelines Preamble, EPA concluded 

that, for the specific purposes of the 

Regional Haze Rule’s BART provisions, 

CALPUFF is sufficiently reliable to 

inform the decision making process. 

Comment: The commenter states that 

a study by the CDPHE showed model 

results for nitrates will be skewed high 

by assuming higher than actual 

background levels of ammonia. 

Response: The CDPHE completed a 

CALPUFF model sensitivity study that 

evaluated the effect of the background 

ammonia concentration on model 

predictions for ammonium nitrate and 

sulfate. The CDPHE found that 

CALPUFF model predicted nitrate was 

insensitive to variations in background 

concentrations greater than 10 ppb and 

became progressively more sensitive to 

background ammonia as it was reduced 

from 10 to 0 ppb.127 We note that 

CDPHE performed a sensitivity study 

but did not evaluate model performance 

and did not identify any particular case 

in which model performance was 

skewed by the use of inappropriate 

background ammonia concentrations. 

The conclusions of the CDPHE study are 

fully consistent with the IWAQM Phase 

2 report, which also recognized that 

accurate specification of background 

ammonia ‘‘is critical to the accurate 

estimation of particulate nitrate 

concentrations.’’ 128

Comment: The commenter cites 

several presentations and studies that 

document flaws in CALPUFF’s sulfate 

and nitrate chemistry: (1) It is out of 

date, overly simplistic, and inaccurate; 

(2) CALPUFF greatly overstated sulfate 

and nitrate in winter, overestimating 

visibility impacts by 100–1000% in 

many cases; and (3) that the model 

understated sulfate in summer; and that 

nitrate predictions were particularly 

inaccurate, overstated, and unreliable. 

Response: EPA recognized the 

uncertainty in the CALPUFF model 

when EPA made the decision, in the 

final BART Guidelines, to recommend 

that the model be used to estimate the 

98th percentile visibility impairment 

rather than the highest daily impact 

value. While recognizing the limitations 

of the CALPUFF model in the BART 

Guidelines, EPA concluded that, for the 

specific purposes of the RHR’s BART 

provisions, CALPUFF is sufficiently 

reliable to inform the decision making 

process. 

Comment: NOX emissions control has 

little visibility benefit during summer 

when visibility impairment is 

dominated by wildfires. 

Response: EPA agrees that nitrate 

impacts are more dominant in the 

winter. The CALPUFF model results are 

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Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 5127 

129 IWAQM, p.18. 

130http://www.epa.gov/scram001/reports/EPA454-R-12-003.pdf. 

consistent with these observations, with 

the largest modeled visibility 

improvements occurring from late fall to 

early spring. NOX emissions are 

precursors to ammonium nitrate, and 

high concentrations of ammonium are 

typically observed from late fall to early 

spring when cold temperatures and high 

relative humidity results in 

thermodynamic conditions that favor 

the formation of ammonium nitrate. 

Observed ammonium nitrate 

concentrations are typically low during 

summer because warm temperatures 

result in thermodynamic conditions that 

are not favorable to the formation of 

ammonium nitrate. Nonetheless, there 

may be higher nitrate concentrations on 

colder days during this period. 

Comment: EPA’s visibility-benefits 

analysis still is constrained in the reproposed Wyoming haze plan because 

EPA has not identified the visibility 

benefits from BART controls across all 

of the Class I areas affected by hazecausing pollutants from Wyoming 

sources. Wyoming EGUs impact 

visibility over at least 18 Class I areas. 

While EPA’s own visibility modeling 

fully supports determinations that SCR 

is BART for all Wyoming EGUs, the 

visibility benefits of SCR across all 

affected Class I areas are cumulatively 

significant and, if the RHR’s 

fundamental purpose is to be fulfilled, 

they must not be ignored. 

Response: EPA disagrees with this 

comment. The commenter’s number of 

‘‘at least 18 Class I areas’’ is derived by 

including Class I areas that are more 

than 300 km from BART sources. EPA 

disagrees that these Class I areas should 

be included in the visibility analysis. 

The IWAQM Phase 2 report reviewed 

model performance evaluations of 

CALPUFF as a function of distance from 

the source and concluded that:’’Based 

on the tracer comparison results 

presented in Section 4.6, it appears that 

CALPUFF provides reasonable 

correspondence with observations for 

transport distances of over 100 km. Most 

of these comparisons involved 

concentration values averaged over 5 to 

12 hours. The CAPTEX comparisons, 

which involved comparisons at 

receptors that were 300 km to 1000 km 

from the release, suggest that CALPUFF 

can overestimate surface concentrations 

by a factor of 3 to 4. Use of the puff 

splitting option in CALPUFF might have 

improved these comparisons, but there 

are serious conceptual concerns with 

the use of puff dispersion for very longrange transport (300 km and beyond). 

As the puffs enlarge due to dispersion, 

it becomes problematic to characterize 

the transport by a single wind vector, as 

significant wind direction shear may 

well exist over the puff dimensions. 

With the above thoughts in mind, 

IWAQM recommends use of CALPUFF 

for transport distances of order 200 km 

and less. Use of CALPUFF for 

characterizing transport beyond 200 to 

300 km should be done cautiously with 

an awareness of the likely problems 

involved.’’ 129 We present additional 

discussion of this issue in our response 

to the following comment. 

Comment: EPA arbitrarily failed to 

model visibility impacts of the various 

control options at all affected Class I 

areas, including those that are beyond 

300 km from the source. EPA recently 

responded to a similar comment in its 

final action promulgating the Montana 

Regional Haze FIP, 77 FR 57864, for the 

first time supporting its truncated 

modeling by referencing a nowdiscredited 1998 report regarding 

CALPUFF performance. Because EPA 

raised this issue only after the close of 

the public comment period on its 

Wyoming regional haze action, EPA 

should consider the Conservation 

Organizations’ response. See 42 U.S.C. 

7607(d)(4)(B)(i). 

In its response to public comments on 

the Montana FIP, EPA stated, ‘‘The 

Interagency Workgroup on Air Quality 

Modeling (IWAQM) Phase 2 report 

(EPA, 1998) reviewed model 

performance evaluations of CALPUFF as 

a function of distance from the source 

and concluded that: . . .[u]se of 

CALPUFF for characterizing transport 

beyond 200 to 300 km should be done 

cautiously with an awareness of the 

likely problems involved.’’ 77 FR 

57867–68. EPA then concludes, 

‘‘[t]herefore, given that the IWAQM 

guidance provides for the use of the 

CALPUFF model at receptor distances 

of up to 200 to 300 km, and given that 

EPA has already addressed uncertainty 

in the CALPUFF model, we believe it is 

reasonable to use CALPUFF to evaluate 

visibility impacts up to 300 km.’’ Id. at 

57868. 

We agree that CALPUFF is reliable at 

distances of 300 km. However, EPA’s 

use of the IWAQM Phase 2 report to 

support its decision to exclude 

modeling at distances beyond 300 km is 

arbitrary. First, changes to CALPUFF 

since 1998 may correct problems 

identified in the IWAQM Phase 2 report 

with modeling accuracy in the 200– 

1,000 km range. Second, a more recent 

study prepared for EPA called into 

question the conclusions of the IWAQM 

Phase 2 report upon which EPA relies. 

See Long Range Transport Models Using 

Tracer Field Experiment Data (May 

2012) (EPA Contract No: EP–D–07–102, 

Work Assignment No: 4–06). The May 

2012 study concluded that ‘‘The 

inability of most (∼90%) of the current 

study’s CALPUFF sensitivity tests to 

reproduce the 1998 EPA study tracer 

test residence time on the 600 km 

receptor arc is a cause for concern.’’ Not 

only were the authors of the May 2012 

study unable to reproduce the 1998 

study’s findings that CALPUFF 

overestimated pollutant concentrations 

at distances of 600 km, the 2012 study 

concluded that CALPUFF actually 

underestimates average pollutant 

concentrations at 600 km. Accordingly, 

reliance on CALPUFF at long distances 

would result in conservative estimates 

of visibility impacts. It is not 

appropriate to assume, as EPA 

effectively did in its Wyoming proposal, 

that such impacts are non-existent. 

EPA’s failure to model and consider 

visibility impacts at all affected Class I 

areas, including those beyond 300 km, 

is not supported. 

Because the RHR, and SIPs and FIPs 

promulgated to implement it, are to 

fulfill CAA requirements to mitigate and 

ultimately eliminate anthropogenic 

sources of haze pollution at all Class I 

national parks and wilderness areas, it 

is imperative that states and EPA use 

models to completely and accurately 

depict the visibility impact of a source 

to the region’s Class I areas as well as 

projected benefits from BART. In this 

regard, the conclusion of the May 2012 

study that CALPUFF reliably (if 

conservatively) identifies visibility 

impacts to Class I areas beyond those 

previously evaluated are critical, and 

directs EPA to supplement the 

incomplete analysis presented in its 

proposed action on the Wyoming 

Regional Haze plan with additional 

modeling, or consider the more 

complete modeling submitted by the 

conservation organizations with their 

August 2, 2012 comments. 

Response: EPA disagrees with the 

commenter’s assertion that changes to 

CALPUFF now support modeling at 

distances greater than 300 km. The 

commenter cited a May 2012 technical 

evaluation (Documentation of the 

Evaluation of CALPUFF and Other Long 

Range Transport Models Using Tracer 

Field Experiment Data 130) that 

evaluates several long range transport 

models based on several tracer studies. 

The report cited by the commenter does 

not refute the IWAQM Phase 2 report 

which states that ‘‘IWAQM recommends 

use of CALPUFF for transport distances 

of order 200 km and less. Use of 

CALPUFF for characterizing transport 

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5128 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

131http://www.epa.gov/scram001/7thconf/

calpuff/phase2.pdf, page 18. 

132http://www.epa.gov/scram001/reports/EPA454-R-12-003.pdf, page 10. 

beyond 200 to 300 km should be done 

cautiously with an awareness of the 

likely problems involved.’’ 131 In fact, 

the May 2012 report further 

‘‘emphasizes the need for a standardized 

set of options for regulatory CALPUFF 

modeling.’’ 132 Given these findings, 

EPA does not agree, as the commenter 

asserts, that it must consider CALPUFF 

modeling results from Federal Class I 

areas beyond 300 km. EPA therefore 

believes that the results of CALPUFF 

modeling beyond 300 km of the source 

should be evaluated in light of the 

limitations discussed in the two 

guidance documents cited above. 

Finally, we disagree that there is any 

notice issue with respect to the 

commenter’s allegations that EPA 

referenced the 1998 IWAQM study for 

the first time in our response to 

comments in our Montana FIP action. 

As quoted above, the BART guidelines 

specifically reference the 1998 IWAQM 

study with respect to CALPUFF settings. 

Comment: EPA modeled visibility 

benefits at four Class I areas, and 

demonstrated visibility improvement 

due to SCR that approximately doubled 

the improvement afforded by SNCR at 

every Class I area modeled. 78 FR 

34775–34776. EPA properly took 

account of the cumulative visibility 

improvement across all four modeled 

Class I areas for each unit, id. at 34776, 

but in fact, as the Conservation 

Organizations commented previously, 

see 8/2/2012 Conservation Organization 

Comments, SCR affords visibility 

benefits across at least six Class I areas. 

Thus, the cumulative visibility benefits 

are even greater than found by EPA, and 

further support a determination that 

SCR is BART for Laramie River Station 

Units 1–3. 

Response: We disagree that we should 

have evaluated visibility impacts at all 

of the areas that the commenter 

considered in its analysis. The 

commenter provided CALPUFF model 

results at 18 areas, including areas that 

are not mandatory Class I areas, and at 

Class I areas at distances greater than 

300 km from Laramie River Station. In 

our analysis of visibility impacts, we 

considered the visibility improvement 

at four Class I areas within 300 km of 

the Laramie River Station. Therefore, 

our modeling analyses did not ignore 

the visibility improvement that would 

be achieved at areas other than the most 

impacted Class I area, and we disagree 

with the assertion that we should have 

evaluated all of the areas that the 

commenter considered. 

Comment: EPA’s re-proposed 

Wyoming haze plan presents a unit-byunit analysis of the visibility benefits of 

the installation of various BART control 

alternatives at Wyoming EGUs, and 

identifies benefits at only a subset of the 

affected Class I areas. However, EPA did 

not present evidence of the cumulative 

visibility benefits that would be enjoyed 

by Class I areas from implementation of 

all of the BART determinations in its 

2013 re-proposal. To assess this 

shortcoming, the Conservation 

Organizations contracted with Howard 

Gebhart to conduct a cumulative 

visibility improvement modeling 

analysis that compared installation of 

the NOX BART determinations found in 

EPA’s 2013 re-proposal versus the State 

BART determinations found in the 

Wyoming Regional Haze SIP. See 

Gebhart Report, at 17–24. Mr. Gebhart’s 

visibility modeling results show that 

installation of the BART determinations 

in EPA’s 2013 re-proposal will result in 

significant visibility improvement at 

numerous Class I areas when compared 

to the Wyoming SIP. For example, 

installation of the BART determinations 

in EPA’s 2013 re-proposal would 

consistently result a total deciview 

improvement of 1.0 deciview or greater 

over the Wyoming SIP at Badlands 

National Park, Savage Run Wilderness, 

and Wind Cave National Park. In 

addition, significant visibility 

improvements exceeding 0.5 deciviews 

were predicted at Badlands National 

Park, Bridger Wilderness, Mount Zirkel 

Wilderness, Rawah Wilderness, Rocky 

Mountain National Park, Savage Run 

Wilderness, and Wind Cave National 

Park. In summary, the Conservation 

Organizations’ cumulative visibility 

improvement modeling analysis 

provides further support that significant 

visibility benefits can be achieved from 

the finalization of the BART 

determinations contained in EPA’s 2013 

re-proposal. EPA’s 2013 re-proposed 

rule advances (without entirely 

fulfilling) the goals of the regional haze 

program to reduce visibility impairment 

using BART during the first regional 

haze five-year planning period. In 

contrast, the Wyoming Regional Haze 

SIP would fall far short of these goals. 

Response: First, we note that the 

modeling performed by the 

Conservation Organizations’ contractor 

used the 2 ppb background ammonia 

concentration, and did not correct the 

model results for ammonia limiting 

conditions, and therefore predicts 

greater visibility impairment than did 

EPA’s revised modeling. EPA provided 

information about the visibility 

improvement modeled for different 

BART scenarios at multiple Class I areas 

within 300 km of each BART source. 

EPA primarily relied on the benefits at 

the area with the greatest visibility 

improvement from controls, but we also 

considered the cumulative impacts and 

benefits at multiple Class I areas. EPA 

agrees that considering cumulative 

visibility benefits by aggregating the 

expected improvement from over 

multiple Class I areas is a useful metric 

that can further inform a BART 

determination. Such an approach can be 

useful, for example, in simplifying a 

complex array of visibility impacts, 

especially where a source has 

significant impacts on multiple Class I 

areas. 

Comment: EPA’s proposed rule fails 

to present the cumulative visibility 

benefits of installation of SCR at 

Wyoming’s EGUs. Instead, EPA only 

presents the visibility benefits for a 

single Class I area per source (Wind 

Cave National Park for all sources 

except the Jim Bridger plant (Mount 

Zirkel Wilderness Area)). The 

cumulative impact of a source’s 

emissions on visibility as well as the 

cumulative benefit of emission 

reductions is a necessary consideration 

as part of the fifth-step in the BART 

analysis. The statutory direction and 

goal of the regional haze program is to 

remedy any existing impairment of 

visibility in mandatory Class I areas. 42 

U.S.C. 7491(1). The implementing 

regulations plainly anticipate the need 

to reduce impacts in multiple Class I 

areas, including those outside a state’s 

borders, and the obligation to assess 

what is necessary to do so. 40 CFR 

51.308(d)(3). Further, states are required 

to establish reasonable progress goals for 

each Class I area, not just the one most 

impacted by a single source. Id. section 

51.308(d)(1). EPA’s own regional haze 

guidance document states that a 

cumulative visibility benefit analysis is 

generally consistent with the CAA. 70 

FR 39105, 39107 (we believe that a 

State’s decision to use a cumulative 

analysis at the eligibility stage is 

consistent with the CAA); 40 CFR Part 

51, App Y. While the Guidelines also 

contemplate and even allow analysis of 

only the most impacted Class I area, 

such an analysis contradicts the regional 

approach towards the restoration of 

visibility. Moreover, given the number 

of Class I areas impacted by Wyoming 

sources, it is illogical and baseless to 

fictitiously limit the spectrum of source 

impact and emission control benefit. 

Based upon the guidance and the 

requirements of the CAA, the 

cumulative impact of a source’s 

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Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 5129 

emissions on visibility, as well as the 

cumulative benefit of emission 

reductions, should be considered as part 

of the fifth-step in the BART analysis. 

The FLMs, too, have urged EPA Region 

8 to consider the cumulative visibility 

benefits of requiring stricter controls on 

BART-eligible units in Montana. For 

example, at a public meeting in Billings, 

regarding the Montana Regional Haze 

SIP, Valerie Naylor, Superintendent of 

Theodore Roosevelt National Park 

stated, ‘‘EPA placed too much emphasis 

on incremental costs and incremental 

benefits, while eliminating 

consideration of cumulative benefits 

that would be realized in the numerous 

Class I National Parks, National Wildlife 

Refuges, and Wilderness Areas 

impacted by Colstrip.’’ The National 

Park Service (NPS) has consistently 

requested that cumulative visibility 

benefit analyses be conducted in other 

regional haze determinations. In 

addition, EPA must consider the 

cumulative visibility benefit of BART 

controls on multiple units of a single 

source. EPA’s BART guidelines make 

clear that states must consider 

emissions from an entire source in 

determining whether a source is subject 

to BART, and further clarify that 

multiple units at a single utility 

constitute a single source. 40 CFR Part 

51, App Y, sect. II.A. 

The Conservation Organizations 

retained Air Resource Specialists, Inc. 

(ARS) to evaluate the cumulative 

visibility impact of NOX BART controls, 

and found that the cumulative benefit of 

SCR at all Wyoming BART-subject EGUs 

is very significant. In conducting its 

supplementary modeling, ARS used an 

SCR-controlled NOX emission rate to 

0.05 lb/MMBtu to reflect the level of 

control achievable with SCR and 

recalculated baseline emissions to 

comply with the BART guidelines, as 

described in sections I.A.2 and I.C. 

Otherwise, ARS employed the same 

assumptions used by EPA in its 

analysis. 

ARS’s visibility modeling addresses 

impacts to 18 Class I areas, including 

Savage Run Wilderness Area (which is 

not a mandatory Class I area but is 

managed as such by Wyoming). The 

ARS report addresses the cumulative 

benefit of installation of SCR at multiple 

units at a single power plant location 

(ex. the cumulative benefits of 

installation of SCR at all four Bridger 

units). The ARS Report also calculates 

the cumulative visibility benefit of 

installation of SCR on all BART units in 

Wyoming. Id. It should not be assumed 

that ARS’s results document the highest 

impacts. Rather, they are presented to 

demonstrate widespread and farreaching visibility impacts and 

improvements that can be achieved 

through the use of SCR. 

The cumulative visibility benefit from 

installation of SCR on all BART units in 

Wyoming is significant. The application 

of SCR control on Wyoming’s subject-toBART emission units is predicted to 

improve worst-case visibility 

impairment by up to 8 deciviews at the 

Savage Run Class I area, with 4 

deciviews of improvement or better at 

six Class I areas. ARS Report, Table 3– 

13. For the 98th percentile day, the 

improvement after SCR emissions 

control at all Wyoming BART-subject 

EGUs is as high as 3.5 deciviews at 

Wind Cave National Park. Id. At least 

six different Class I areas show 

improvement of 3 deciviews or more 

based on the 98th percentile day after 

SCR emissions control at all Wyoming 

BART-subject EGUs. Id. 

SCR controls at Wyoming’s subject-toBART units are also predicted to 

significantly reduce the number of days 

with visibility impacts above 0.5 

deciview and 1.0 deciview compared to 

baseline emissions scenario. Over all 18 

Class I areas modeled, the cumulative 

improvement from application of SCR 

on all Wyoming BART-subject EGUs is 

721 fewer days with visibility 

impairment exceeding 0.5 deciview and 

595 fewer days with visibility 

impairment exceeding 1.0 deciview. Id., 

Table 3–14. These improvements are 

relatively uniformly distributed across 

the seven Class I areas most impacted by 

Wyoming’s subject-to-BART EGUs: 

Badlands National Park, Bridger 

Wilderness Area, Mt. Zirkel Wilderness 

Area, Rawah Wilderness Area, Rocky 

Mountain National Park, Savage Run 

Wilderness Area, and Wind Cave 

National Park. 

Response: As described in another 

response, EPA did not limit its analysis 

of visibility impairment to a single Class 

I area. We evaluated visibility 

impairment from each BART source at 

multiple Class I areas. We presented the 

results for each Class I area, and we 

considered the visibility impairment at 

multiple Class I areas in our BART 

determination. The estimates of 

visibility impairment presented by the 

commenter relied on an overly 

conservative estimates of background 

ammonia concentrations, and therefore 

are likely to overestimate cumulative 

visibility benefits. 

In regard to the comment concerning 

the cumulative visibility benefit of 

BART controls on multiple units at a 

single source, see the response to a 

subsequent comment below. 

Comment: It is appropriate to 

consider both the degree of visibility 

improvement in a given Class I area as 

well as the cumulative effects of 

improving visibility across all of the 

Class I areas affected. If reducing 

emissions from a BART source impacts 

multiple Class I areas, then a BART 

determination should incorporate those 

benefits. It is not justified to evaluate 

impacts at one Class I area, while 

ignoring others that are similarly 

significantly impaired by the BART 

source. If emissions from the BART 

source are reduced, the benefits will be 

spread well beyond only the mostimpacted Class I area, and these benefits 

are an integral part of the BART 

determination. The BART Guidelines 

attempt to create a workable approach to 

estimating visibility impairment. The 

Guidelines do not attempt to address the 

geographic extent of the impairment, 

but in effect assume that all Class I areas 

are created equal, i.e., widespread 

impacts in a large Class I area and 

isolated impacts in a small Class I area 

are given equal weight for BART 

determination purposes. To address the 

problem of geographic extent, we look at 

the cumulative impacts of a source on 

all Class I areas affected, as well as the 

cumulative benefits from reducing 

emissions. While there may be more 

sophisticated approaches to this 

problem, we believe that this is the most 

practical, given current modeling 

techniques and information available. 

Response: Contrary to the 

commenter’s assertion, we did assess 

cumulative visibility impacts for 

multiple Class I areas. In our analysis of 

visibility impacts, we considered the 

visibility improvement at multiple Class 

I areas within the 300 kilometers of the 

modeling domain. For example, in our 

analysis of BART control options for 

Naughton, we considered the visibility 

improvement at seven Class I areas 

(Bridger Wilderness Area, Fitzpatrick 

Wilderness Area, Grand Teton National 

Park, North Absaroka Wilderness Area, 

Teton Wilderness Area, Washakie 

Wilderness Area, and Yellowstone 

National Park). 

Therefore, our proposed rule did not 

ignore the visibility improvement that 

would be achieved at areas other than 

the most impacted Class I area, and we 

disagree with the assertions that we did 

not consider the impacts at multiple 

Class I areas. In the proposed rule, we 

did however focus on the visibility 

benefits at the most impacted Class I 

area. 

Comment: EPA has incorrectly 

estimated visibility improvement from 

all NOX control options at the Laramie 

River Station. Wyoming DEQ evaluated 

visibility improvements at the two 

nearest Class I areas and reported the 

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5130 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

‘‘The cumulative visibility improvement 

for SCR, as compared to LNB/OFA, 

across Wind Cave National Park and 

Badlands National Park (based on the 

98th percentile modeled results) was 

0.52–0.54 delta deciview for each of the 

three units.’’ EPA R8 evaluated the five 

closest Class I areas but reported results 

for only the Wind Cave National Park. 

Response: As described in a previous 

response, in our analysis of visibility 

impacts, we considered the visibility 

improvement at four Class I areas within 

300 kilometers of Laramie River. 

Modeling results for all Class I areas 

considered for each BART source for the 

re-proposal were available to the public 

during the comment period upon 

request. (See ‘‘Summary of EPA’s 

Additional Visibility Improvement 

Modeling’’). Therefore, our proposed 

rule did not ignore the visibility 

improvement that would be achieved at 

areas other than the most impacted 

Class I area, and we disagree with the 

assertions that we did not consider the 

impacts at multiple Class I areas. In the 

proposed rule, we did however focus on 

the visibility benefits at the most 

impacted Class I area. 

Comment: EPA rejected Oklahoma’s 

visibility analyses which ‘‘relied upon 

pollutant specific modeling to evaluate 

the benefits from the use of available 

SO2 emission controls.’’ 76 FR 81728, 

81740. Rather, EPA modeled in 

Oklahoma ‘‘all visibility impairing 

pollutants to fully assess the visibility 

improvement anticipated from the use 

of controls.’’ EPA argued this modeling 

took into account ‘‘the complexity of 

atmospheric chemistry and chemical 

transformation among pollutants.’’ In 

Wyoming, EPA noted that Wyoming 

provided ‘‘visibility improvement 

modeling results that combine[d] the 

visibility improvement from NOX, PM 

and SO2 control options’’ and that ‘‘EPA 

could not ascertain what the visibility 

improvement would be from an 

individual NOX or PM control option.’’ 

77 FR 33031. EPA appears to take 

contrary positions in Oklahoma and 

Wyoming. EPA’s inconsistent positions 

are arbitrary and capricious. 

Response: As described in a response 

to a previous comment, it appears that 

the commenter has confused (1) 

whether all pollutants were modeled 

together; and (2) whether all control 

technologies were modeled. All 

pollutants were modeled together both 

in modeling performed by Wyoming 

and by EPA for BART sources in 

Wyoming and Oklahoma, consistent 

with IWAQM Phase 2 report 

recommendations. The additional 

modeling performed by EPA was 

designed to evaluate visibility 

improvements from certain emissions 

reduction technologies. Each of these 

simulations also included all other 

visibility impairing pollutants, so the 

approach used by EPA in Wyoming and 

Oklahoma is consistent. 

Comment: We are concerned about 

the emissions modeled by EPA as 

presented in the ‘‘Summary of EPA’s 

Additional Visibility Improvement 

Modeling.’’ For example, sulfuric acid 

mist (H2SO4) emissions from each 

PacifiCorp unit are assumed to double 

from the baseline and control scenarios 

that do not include SCR versus 

scenarios with SCR. The only 

explanation provided by EPA is that 

‘‘the emission rate for . . . total sulfate 

rates were increased to account for the 

additional production that results from 

SCR controls.’’ EPA’s approach in 

Wyoming is not consistent with its 

approach elsewhere. For example, in its 

modeling analysis of addition of SCR at 

Colstrip Units 1 and 2 in Montana, EPA 

assumed no additional sulfate emissions 

from the addition of SCR. 

Because H2SO4 must be reported as a 

hazardous air pollutant, the Electric 

Power Research Institute has developed 

a widely-accepted method for 

estimating those emissions. Our 

analyses indicate a two-orders-ofmagnitude overestimation by EPA of 

these visibility-impairing emissions, 

which results in an underestimation of 

the visibility benefit of adding SCR. 

Response: While the method 

established by the Electric Power 

Research Institute may yield more 

accurate H2SO4 emission rates, we have 

not found, and the commenter has not 

substantiated, that our treatment of 

H2SO4 led to meaningfully different 

modeled visibility improvement, or for 

that matter, influenced the BART 

determination in a material manner. In 

the modeling conducted by EPA, we set 

the sulfuric acid emission rates equal to 

those in the State’s modeling analyses 

which typically doubled the H2SO4

emission rate between the baseline and 

SCR modeling scenarios. In comparison 

to the emission rates for SO2 and NOX,

the emission rates for H2SO4 were 

trivial. For example, consider Dave 

Johnston Unit 3, where the modeled 

emission rates for SO2 and NOX in the 

baseline scenario were 420.0 lbs/hr and 

1671.0 lbs/hr, respectively, while the 

modeled emission rate for H2SO4 was 

2.6 lbs/hr. Here, in comparison to SO2

and NOX emissions, the emissions rate 

of H2SO4 is clearly insignificant and 

would have a limited impact on 

modeled visibility. The same can be 

said for the SCR scenario where the 

modeled emission rates for SO2 and 

NOX were 420.0 lbs/hr and 163.3 lbs/hr, 

respectively, while the modeled 

emission rate for H2SO4 was 5.1 lbs/hr. 

In short, the H2SO4 emission rates used 

in the modeling were so low that it is 

apparent that they have no more than a 

negligible impact on the modeled 

visibility improvement. 

Comment: EPA must consider the 

cumulative visibility benefit of BART 

controls on multiple units of a single 

source. EPA’s BART guidelines make 

clear that states must consider 

emissions from an entire source in 

determining whether a source is subjectto-BART, and further clarify that 

multiple units at a single utility 

constitute a single source. 40 CFR part 

51, App Y, sect. II.A. This is not by 

accident or oversight. As EPA stated in 

its preamble to the BART Guidelines, 

‘‘[a]pplying de minimis levels on a unit 

by unit basis . . . could exempt 

hundreds of tons of emissions of a 

visibility-impairing pollutant from 

BART analysis. [I]t is possible that 

while emissions from each unit are 

relatively trivial, the costs of controlling 

emissions from multiple units might be 

cost-effective in light of the BARTeligible source’s total emissions of the 

pollutant at issue.’’ 70 FR 39104, 39117. 

With respect to the RHR requirement 

that states must project visibility 

impacts of BART controls, the BART 

Guidelines state: ‘‘Once you have 

determined that your source or sources 

are subject to BART, you must conduct 

a visibility improvement determination 

for the source(s) as part of the BART 

determination.’’ 40 CFR part 51, App Y, 

sect. IV.D.5. Thus, it is clear that both 

visibility impacts and visibility benefits 

are to be considered cumulatively for 

multiple units at a single source. 

This is also consistent with EPA’s 

practice in other states. For example, 

EPA found it appropriate to consider the 

combined visibility impact of pollution 

controls on multiple units at a single 

facility in determining that BART is 

SNCR for Units 1 and 2 of the Colstrip 

facility in Montana. Failure to consider 

cumulative visibility impacts discounts 

the very real effect of source-specific 

pollution on regional haze and likewise 

the cumulative benefits of potential 

retrofits. EPA cannot demonstrate that it 

has properly evaluated BART controls 

for affected sources without producing 

and presenting such a cumulative 

analysis. 

Response: EPA notes that, in 

considering the visibility improvements 

reflected in our revised modeling, EPA 

interprets the BART Guidelines to 

require consideration of the visibility 

improvement from BART applied to the 

entire BART-eligible source. The BART 

Guidelines explain that, ‘‘[i]f the 

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Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 5131 

133 Document with Wind Cave IMPROVE data, in 

the docket. 

134EPA CALPUFF modeling results for Laramie 

Rivers Station, in docket: CALPUFF_WY_BART_

bextNO3_BE_LR_Baseline_WindCave_12112013. 

emissions from the list of emissions 

units at a stationary source exceed a 

potential to emit of 250 tons per year for 

any visibility-impairing pollutant, then 

that collection of emissions units is a 

BART-eligible source.’’ In other words, 

the BART-eligible source (the list of 

BART emissions units at a source) is the 

collection of units for which one must 

make a BART determination. The BART 

Guidelines state ‘‘you must conduct a 

visibility improvement determination 

for the source(s) as part of the BART 

determination.’’ This requires 

consideration of the visibility 

improvement from BART applied to the 

BART-eligible source as a whole. We 

note, however, that while our 

regulations require states and EPA to 

assess visibility improvement on a 

source-wide basis, they provide 

flexibility to also consider unit-specific 

visibility improvement in order to more 

fully inform the reasonableness of a 

BART determination, but that does not 

replace the consideration of visibility 

benefit from the source (facility) as a 

whole. 

In making the BART determinations 

in this final action we have considered 

visibility improvements at the source, 

and then also at the units that comprise 

the source. The approach that we used 

in our BART decisions for Wyoming is 

consistent with the approach that we 

used for Montana. 

Comment: The commenter submitted 

results of back trajectory HYSPLIT 

modeling showing that pollutants 

reaching certain Class I areas on the 

high nitrate haze days did not originate 

from Laramie River Station. The 

commenter concludes that this analysis 

confirms that reducing NOX emissions 

from Laramie River would not improve 

visibility at these Class I areas. 

Response: We disagree with the 

comment that the HYSPLIT results 

submitted by the commenter can be 

used to evaluate the contribution of 

Laramie River to visibility impairment 

at Wind Cave National Park. The 

commenter performed HYSPLIT backtrajectory modeling for 10 days with 

high ammonium nitrate concentrations 

at Wind Cave National Park. The 10 

days were selected from the period from 

2001 to 2010, and only two of these 

days occurred during 2001 to 2003 

baseline period used for the BART 

visibility modeling. These two days 

were February 24, 2001 and February 

14, 2003, when the observed ammonium 

nitrate at the IMPROVE monitoring site 

at Wind Cave National Park was 41 and 

33 inverse Megameters (Mm-1), 

respectively. We note that there were 

many days during the 2001 to 2003 

period on which observed ammonium 

nitrate levels at Wind Cave National 

Park were in the range from 10 to 30 

Mm-1,133 but the commenter did not 

submit HYSPLIT results for these days. 

HYSPLIT is a trajectory model similar 

to CALPUFF in that both models use 

modeled and observed wind field data 

to predict the trajectory of pollutants 

transported from a source area to a 

receptor location. There are differences 

in the formulation of the HYSPLIT and 

CALPUFF models and differences in the 

meteorological data used as input data 

for each model, so the predicted 

trajectory from each model may vary 

somewhat as a result of these 

differences. The most notable difference 

in the two models is that CALPUFF is 

designed to predict both the trajectory 

and the chemical conversion of 

precursor emissions to fine particulates 

and to estimate the concentrations of 

ammonium nitrate and other species at 

receptor sites, while HYSPLIT simply 

predicts the trajectory of the emissions 

but does not predict the chemical 

transformations nor the concentration of 

ammonium nitrate at receptor sites. 

We evaluated the CALPUFF results 

for February 24, 2001 and February 14, 

2003, and found that the HYSPLIT and 

CALPUFF results were consistent, i.e., 

the CALPUFF model did not attribute 

high levels of ammonium nitrate at 

Wind Cave National Park on these two 

days to Laramie River. The table of 

CALPUFF modeling results 134 shows 

that the model predicted a contribution 

of nitrate from Laramie River of 0.02 

deciview on Feb 24, 2001, or 0.05% of 

the observed value, and on Feb 14, 

2003, 1.697 deciview, or 5% of the 

observed. The small modeled 

contribution on these days is consistent 

with uncertainty in the HYSPLIT model. 

Because the HYSPLIT model does not 

estimate the formation of ammonium 

nitrate, and because HYSPLIT results 

were only submitted for two days 

during the 2001 to 2003 baseline 

modeling period, these HYSPLIT results 

are neither useful nor reliable for 

identifying emissions sources that 

contribute to visibility impairment at 

Wind Cave National Park. The HYSPLIT 

and CALPUFF results do indicate that 

sources other than Laramie River 

contribute to visibility impairment on 

the two days with the very highest 

ammonium nitrate levels at Wind Cave 

during the 2001 to 2003 baseline period. 

However, the CALPUFF results indicate 

that Laramie River contributes to 

visibility impairment at Wind Cave 

National Park. 

Comment: EPA improperly 

considered ‘‘cumulative visibility 

improvement’’ when it rejected 

Wyoming’s BART NOX analyses and 

required SCR at Naughton Unit 1 and 

Naughton Unit 2. (78 FR 34782). Other 

comments asserted that EPA improperly 

considered ‘‘cumulative visibility 

improvement’’ when it rejected 

Wyoming’s BART NOX analyses and 

required SCR at Dave Johnston Unit 3 

(78 FR 34778). Finally, a third set of 

comments asserted that EPA R8 has 

incorrectly estimated visibility 

improvement from all NOX control 

options at Wyodak: Wyoming DEQ 

evaluated cumulative visibility 

improvements at the two nearest Class 

I areas (Wind Cave and Badlands 

National Parks) while EPA R8 reported 

results for only one Class I area. 

Response: We disagree with these 

comments. In evaluating the visibility 

improvement associated with various 

control options, EPA interprets the CAA 

to require consideration of visibility 

improvement at all impacted Class I 

areas. Consideration of improvement at 

multiple Class I areas, as opposed to just 

benefits at the most impacted Class I 

area, has often been described as 

‘‘cumulative visibility improvement.’’ 

Despite this terminology, however, an 

analysis of cumulative visibility 

improvement does not necessarily 

require that the deciview improvement 

at each area be summed together. While 

states or EPA are free to take such a 

quantitative approach, they are also free 

to use a more qualitative approach. 

Here, we chose to rely primarily on the 

visibility improvement at the most 

impacted Class I area, while also 

considering the number of additional 

Class I areas that would see 

improvement, as well as the level of 

improvement at each area. We did not 

expressly rely on a summation of 

visibility benefits across Class I areas, as 

we have done in other regional haze 

actions, although this metric was 

included in some tables. Finally, in our 

analysis of visibility impacts, we 

considered the visibility improvement 

at both Class I areas within 300 

kilometers of Wyodak. The modeling 

results for the second proposal for all 

Class I areas considered for each BART 

source were available to the public 

during the comment period upon 

request. (See ‘‘Summary of EPA’s 

Additional Visibility Improvement 

Modeling’’). 

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5132 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

135Andover Technology Partners, ‘‘Cost of NOX

Controls on Wyoming EGUs’’, October 28, 2013; 

Wyoming EGU BART and Reasonable Progress 

Costs—10/28/2013; Wyoming EGU BART and 

Reasonable Progress Costs for Jim Bridger—10/28/ 

2013. 

136http://www.epa.gov/airmarkets/progsregs/epaipm/BaseCasev410.html#documentation. 

C. Overarching Comments on BART 

1. BART-Eligible Sources 

Comment: OCI Wyoming commented 

that it was listed as a BART-eligible 

source, but that the facility has an 

enforceable cumulative annual NOX

emission limit of 175.2 tons/year. 

Therefore, the facility is not a ‘‘major 

stationary source’’ and is not BARTeligible. 

Response: We agree with this 

comment and acknowledge that OCI 

Wyoming is not a BART-eligible source. 

2. Costs of Controls 

Comment: One commenter stated that 

it supported EPA’s use of the CCM and 

the Integrated Planning Model (IPM) to 

calculate costs. 

Response: It is noted that EPA has 

revised the cost estimates found in the 

proposed rule based upon input from 

various commenters. The differences in 

cost for individual units may result 

from: (1) Accounting for site elevation 

in the SCR capital cost; (2) Change in 

SCR reagent to anhydrous ammonia 

from urea; (3) Change in urea SNCR 

chemical utilization for Laramie River 

units due to high furnace temperature; 

(4) Incorporation of some of the costs 

provided in comments; (4) Change in 

auxiliary electrical cost from market 

price to generating, or ‘‘busbar,’’ cost; (5) 

Correction of dilution water cost 

equation for SNCR; and (6) 

Consideration of shorter plant lifetimes 

in some instances. 

More detailed descriptions of these 

changes and how they were addressed 

are discussed in a report (Andover 

Report) and spreadsheets 135 developed 

for EPA’s responses to comments, as 

well as in our responses to the specific 

comments that are associated with these 

changes below. 

Comment: Sargent & Lundy’s analysis 

provides realistic information regarding 

what it likely would cost to install and 

operate an SCR system at Laramie River 

Station. They include a cost analysis by 

Sargent & Lundy that, unlike EPA’s 

consultant’s work, follows the BART 

Guidelines and EPA’s CCM, and takes 

into account key site-specific conditions 

at Laramie River Station. This analysis 

is far more accurate and reliable than 

what was done by EPA’s consultant—it 

is a site-specific, from-the-ground-up 

analysis done by an engineering firm 

that has done more NOX control projects 

for EGUs than any other firm in the U.S. 

Sargent & Lundy’s analysis provides 

realistic information regarding what it 

likely would cost to install and operate 

an SCR system at Laramie River. This 

analysis strongly supports Wyoming’s 

decision to select new LNBs and OFA 

as BART for Laramie River Station, not 

SNCR or SCR. 

Response: We do not agree with this 

comment. The BART Guidelines 

provide that: ‘‘You should include 

documentation for any additional 

information used for the cost 

calculations, including any information 

supplied by vendors that affects your 

assumptions regarding purchased 

equipment costs, equipment life, 

replacement of major components, labor 

productivity and rates and any other 

element of the calculation that differs 

from the Control Cost Manual.’’ 40 CFR 

part 51, app. Y, at IV.4.a. 

Thus, detailed cost documentation is 

necessary to the extent that cost 

assumptions differ from the CCM. In 

this case, several of Sargent & Lundy’s 

cost assumptions for control costs at 

Basin Electric’s Laramie River Station 

differed from the CCM, but the 

necessary supporting documentation 

was not provided as part of their report. 

Detailed descriptions of the deficiencies 

in the cost assumptions are described in 

comments specific to the units. As 

explained elsewhere in this document, 

EPA has accepted some of the revised 

costs developed for Basin Electric, but 

not others. 

Comment: We found that EPA’s 

consultant had added 1.2% to the total 

capital investment of SCR to account for 

‘‘taxes and insurance.’’ The CCM says: 

‘‘In many cases property taxes do not 

apply to capital improvements such as 

air pollution control equipment, 

therefore, for this analysis, taxes are 

assumed to be zero. The cost of 

overhead for an SCR system is also 

considered to be zero. An SCR system 

is not viewed as risk-increasing 

hardware (e.g., a high energy device 

such as a boiler or a turbine). 

Consequently, insurance on an SCR 

system is on the order of a few pennies 

per thousand dollars annually.’’ The 

BART submittal by PacifiCorp included 

a 1.1% sales tax and Basin Electric 

included a 4% sales tax, both of which 

were applied to the purchased 

equipment costs. It is unclear if 

application of a sales tax is appropriate 

in Wyoming and, if so, what the correct 

tax rate is. 

Response: To the extent that sales or 

property taxes are actually incurred and 

increase the cost of the project, they 

should be accounted for in the cost. See 

CCM at 2.5.4.1 and 2.5.5.8. However, air 

pollution control improvements often 

do not result in increased property 

taxes. When these taxes are not in fact 

applied, they should not be included in 

the estimate. The use of 1.2% as an 

estimate of property taxes and insurance 

is a conservative estimate that is 

consistent with EPA’s assumptions in 

the IPM documentation. According to 

the IPM documentation (version 4.10, 

Chapter 8, page 8–11): ‘‘U.S. state 

property taxes are approximately 0.9% 

based on a national average basis. This 

is based on extensive primary and 

secondary research conducted by ICF 

using property tax rates obtained from 

various state agencies. . . . Insurance 

costs are approximately 0.3%. This is 

based on estimates of insurance costs on 

a national average basis.’’ 136

As noted by the commenter, these 

costs may not in fact apply for 

environmental upgrades or may be 

much less than estimated. EPA did not 

have information on the applicability of 

property taxes at the time we conducted 

our cost estimates and conservatively 

assumed a reasonable amount. We also 

note that the commenter did not provide 

sufficient information to support a 

different property tax or insurance rate. 

With regard to sales tax, the IPM 

algorithm for SCR cost is based upon 

historical projects and incorporates 

typical levels of sales tax. That is, the 

capital costs provided by the 

algorithm(s) are inclusive of sales tax. 

Accordingly, for the purpose of the 

BART cost estimates, and without 

additional data to determine what sales 

taxes would actually apply, EPA has 

relied on the assumptions in the IPM 

algorithm. 

Comment: EPA states in its FIP Action 

(78 FR 34749): ‘‘For all control 

technologies, EPA has identified 

instances in which Wyoming’s sourcebased cost analyses did not follow the 

methods set forth in the EPA Control 

Cost Manual. For example, Wyoming 

included an allowance for funds used 

during construction and for owners 

costs and did not provide sufficient 

documentation such as vendor estimates 

or bids.’’ 

With respect to AFUDC, another 

utility (Oklahoma Gas and Electric) 

argued in a similar regional haze setting 

that: ‘‘AFUDC provides a way of 

measuring the real cost of interest over 

the construction period. AFUDC 

accounts for the time value of money 

associated with the distribution of 

construction cash flows over the 

construction period, which may be 

approximately 18 months for an SCR 

project.’’ Total capital investment, as 

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Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 5133 

137CCM (Tables 1.4 and 2.5 show AFUDC value 

as zero). 

138See, e.g., 77 FR 20894, 20916–17 (Apr. 6, 

2012) (explaining in support of the North Dakota 

Regional Haze FIP, ‘‘we maintain that following the 

overnight method ensures equitable BART 

determinations * * *.’’); 76 FR 52388, 52399– 

52400 (August 22, 2011) (explaining in the New 

Mexico Regional Haze FIP that the Manual does not 

allow AFUDC) 

139Oklahoma v. U.S. EPA, 723 F.3d 1201 (10th 

Cir. 2013). 

defined in the CCM, includes all costs 

required to purchase equipment needed 

for the control system (purchased 

equipment costs), the costs of labor and 

materials for installing that equipment 

(direct installation costs), costs for site 

preparation and building, working 

capital, and off-site facilities. 

A cost breakdown of total capital 

investment (as defined above) is 

presented in several examples in the 

CCM. For example, Table 1.4 (page 

1–32 of Section 4—NOX Controls) and 

Table 2.5 (page 2–44 of Section 4—NOX

Controls) therein explicitly identify 

AFUDC as component ‘‘E’’ of the TCI, 

where TCI = D + E + F + G + H + I, 

where: D = Total Plant Cost; E = 

AFUDC; F = Royalty Allowance; G = 

Preproduction Cost; H = Inventory 

Capital; I = Initial Catalyst and 

Chemicals. 

References 9 and 10 on page 2–38 of 

the CCM explicitly include AFUDC as a 

cost component and reference two 

reports, by Shattuck and Kaplan, in 

support of its use. The EPA built upon 

this knowledge base and costing 

methodology in its publication of the 

CCM in 2002. Thus, the CCM allows the 

time value of money, measured by the 

real discount rate, to be incorporated 

into the cost estimate. 

Section 2.3.1 of the CCM (Elements of 

Total Capital Investment) describes the 

need for total capital investment to 

include all expenditures incurred 

during the construction phase of the 

project, including direct costs, indirect 

costs, fuel and consumables expended 

during start-up and testing, and other 

capitalized expenses. The only items 

explicitly mentioned to be excluded are 

common facilities that already exist at 

the site. AFUDC is part of the expense 

that will be incurred with the 

installation of a large air pollution 

control system, and the accepted 

practice in the utility industry and by 

financial institutions is to treat AFUDC 

as a capitalized expenditure. This 

approach is recognized in publications 

by the U.S. Department of Energy— 

Energy Information Administration, 

such as the Annual Energy Outlook, and 

in publications by the Electric Power 

Research Institute, such as the 

Technical Assessment Guide (EPRI 

TAG). As previously mentioned, the 

EPA clearly followed this approach in 

its studies of retrofit costs of SO2 and 

NOX in the years leading up to its 

publication of the CCM. Furthermore, 

AFUDC has been included in several 

other coal-fired boiler BART 

determinations, and AFUDC is included 

as a line item in EPA’s Coal Quality 

Environmental Cost (CUECost) 

worksheets for flue gas desulfurization 

(FGD) control systems. In cases where 

the time value of money during the 

construction period would be 

significant (e.g., projects with longer 

construction periods such as the 

installation of SCR), the CCM clearly 

allows inclusion of AFUDC. 

PacifiCorp supports and adopts by 

reference Oklahoma Gas and Electric’s 

argument regarding including AFUDC 

in project cost estimates. Whether or not 

AFUDC is included in project cost 

estimates does not materially impact the 

results reached under the EPA CCM 

method, its inclusion should not 

constitute a basis for EPA to reject 

Wyoming’s entire cost assessments. 

PacifiCorp has provided tables that 

provide comparisons of PacifiCorp’s 

project specific EPA CCM method 

results where AFUDC is excluded in 

one set of costs and is included in the 

other to demonstrate this point. 

Response: We disagree with 

commenters’ assertions that AFUDC is a 

cost that should be incorporated into 

our cost analysis, as it is inconsistent 

with CCM methodology. The utility 

industry uses a method known as 

‘‘levelized costing’’ to conduct its 

internal comparisons, which is different 

from the methods specified by the CCM. 

Utilities use ‘‘levelized costing’’ to allow 

them to recover project costs over a 

period of several years and, as a result, 

realize a reasonable return on their 

investment. The CCM uses an approach 

sometimes referred to as overnight 

costing, which treats the costs of a 

project as if the project were completed 

‘‘overnight’’, with no construction 

period and no interest accrual. Since 

assets under construction do not 

provide service to current customers, 

utilities cannot charge the interest and 

allowed return on equity associated 

with these assets to customers while 

under construction. Under the 

‘‘levelized costing’’ methodology, 

AFUDC capitalizes the interest and 

return on equity that would accrue over 

the construction period and adds them 

to the rate base when construction is 

completed and the assets are used. 

Although it is included in capital costs, 

AFUDC primarily represents a tool for 

utilities to capture their cost of 

borrowing and return on equity during 

construction periods. AFUDC is not 

allowed as a capitalized cost associated 

with a pollution control device under 

CCM’s overnight costing methodology, 

and is specifically disallowed for SCRs 

(i.e., set to zero) in the CCM.137

Therefore, in reviewing other BART 

determinations, EPA has consistently 

excluded AFUDC.138 EPA’s position 

regarding exclusion has been upheld in 

the United States Tenth Circuit Court of 

Appeals.139

The fact that CUECost, the EPRI TAG, 

and the Department of Energy cost 

estimates, and even cost estimates used 

as the basis for IPM typically include 

AFUDC is immaterial in this case 

because, for this purpose, overnight cost 

methodology is used and AFUDC is not 

included in that methodology. 

Finally, we reject the commenter’s 

assertion that Wyoming’s inclusion of 

AFUDC did not provide a material basis 

for EPA to disapprove portions of the 

State’s SIP. Inclusion of AFUDC 

increases total project costs of SCR by 

several million dollars. For example, 

Attachment 4 to PacifiCorp’s comment 

letter shows that AFUDC for Dave 

Johnston Unit 4 would add more than 

$9.5 million dollars to the capital costs 

of SCR. We find that amounts of this 

magnitude are not trivial when 

assessing the costs of compliance. 

Comment: Sargent & Lundy’s cost 

estimate does include AFUDC, which 

accounts for the interest charges that 

would be incurred by Basin Electric 

during SCR construction. AFUDC is a 

real and a significant cost on capital 

intensive, long-term projects such as 

SCR installation, which require 

financing over a construction period of 

up to four years. Indeed, to exclude 

AFUDC would inappropriately bias the 

cost estimate in favor of high capital 

intensity projects. Therefore, consistent 

with industry practice, Sargent & Lundy 

included AFUDC, calculated based on a 

typical SCR construction project cash 

flow assuming a real interest rate of 7%. 

The inclusion of AFUDC is not, as 

EPA asserts, inconsistent with either the 

BART Guidelines or the CCM. See 78 FR 

34749. The CCM simply references 

‘‘Total Capital Investment,’’ which 

includes ‘‘all costs required to purchase 

equipment needed for the control 

system,’’ as well as ‘‘working capital.’’ 

CCM 2.3.1, page 2–5 (emphasis added). 

This includes costs required to purchase 

equipment needed for the control 

system (purchased equipment costs), the 

costs of labor and materials for 

installing that equipment (direct 

installation costs), costs for site 

preparation and building, working 

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capital, and off-site facilities. Id. 

Nowhere in the CCM does EPA state 

that AFUDC is not an appropriate cost, 

particularly with respect to long-term, 

capital intensive pollution control 

projects. And even if the CCM made 

such an assertion, inclusion of AFUDC 

in a cost estimate cannot be grounds for 

SIP disapproval because: (1) the CCM is 

not binding for purposes of making 

BART determinations, and (2) requiring 

states to exclude AFUDC is not 

consistent with Congress’ general 

directive that states include ‘‘costs of 

compliance’’ in their BART 

determinations. 

The CAA requires states to consider 

in their BART determinations the ‘‘costs 

of compliance,’’ but does not further 

define the term. See 42 U.S.C. 7491. 

EPA’s regulations codify the BART 

factors, but neither the regulations nor 

the BART Guidelines in Appendix Y 

purport to restrict in any manner the 

categories of costs that states should 

consider when making a BART 

determination. See 70 FR 39166–39168. 

AFUDC is a ‘‘cost of compliance.’’ Basin 

Electric cannot fund large capitalintensive projects like SCR without 

financing, and the costs related to such 

financing are real and substantial. 

Consideration of AFUDC is therefore 

entirely consistent with the CAA’s 

broad reference to ‘‘costs of 

compliance,’’ and excluding AFUDC 

would be inconsistent. 

In this case, even if AFUDC is 

excluded from the total annual costs, 

the costs of installing SCR do not 

decrease substantially enough to justify 

SCR. Sargent & Lundy performed 

sensitivity analyses demonstrating that 

the cost-effectiveness of SCR at Laramie 

River remains at between $8,531 per ton 

of NOX removed and $9,048 per ton of 

NOX removed even if AFUDC is 

excluded. Furthermore, if the 

maintenance cost and labor rate of 1.5% 

also is factored into the analysis, 

consistent with the CCM, as opposed to 

the lower 0.25% used by Sargent & 

Lundy, the cost-effectiveness remains 

above $8,500 per ton of NOX removed. 

Sargent & Lundy also performed a 

sensitivity analysis demonstrating that 

including property taxes and insurance 

as 1.2% of total capital investment, 

consistent with the approach taken by 

Andover but not with the CCM 

approach, more than offsets the 

exclusion of AFUDC. S&L Evaluation 

section 7.1.4, Table 10. 

Response: EPA agrees that AFUDC 

can be a substantial overall cost on large 

capital projects that extend over a 

period of several years. However, as 

noted in the previous response, the 

CCM clearly excludes AFUDC in the 

overnight cost method. Furthermore, as 

we explain in more detail in responses 

to comments that pertain to specific 

sources, we disagree with the 

commenter’s estimates for cost 

effectiveness for the Laramie River 

units. 

Comment: Commenters assert that 

EPA’s regional haze FIP is flawed 

because it failed to provide sufficient 

documentation, such as vendor 

estimates or bids to validate its 

estimates. EPA attempts to justify its 

approach by stating: ‘‘In our revised cost 

analyses, we have followed the structure 

(emphasis added) of the EPA CCM, 

though we have largely used the 

Integrated Planning Model cost 

calculations to estimate direct capital 

costs and operating and maintenance 

costs.’’ 78 FR 34749. 

EPA did not explain what it meant by 

following the ‘‘structure’’ of the manual, 

versus simply following the manual. By 

contrast, PacifiCorp solicited and 

incorporated vendor estimates into 

these comments. This new information, 

which EPA must incorporate into new 

BART analyses to the extent EPA issues 

a final regional haze FIP, validates 

Wyoming’s BART analyses cost of 

control estimates. In addition, it further 

quantifies the inaccuracies in EPA’s 

development and use of purported new 

information that in no way qualifies as 

vendor estimates, bids, or any type of 

site-specific vendor information. 

Response: We do not agree with this 

comment. By following the ‘‘structure’’ 

of the manual, EPA included all of the 

cost elements that the CCM indicates 

should be included, while excluding 

those that should not (such as AFUDC). 

In other words, EPA employed the 

overnight cost method as is required for 

BART analyses. The BART Guidelines 

require that the CCM be followed unless 

deviations from it are clearly 

documented and explained. 

PacifiCorp received bids from vendors 

and EPA has incorporated information 

from these bids into its revised cost 

estimates. However, for reasons 

described elsewhere in response to 

comments, EPA has not accepted all of 

the costs. The BART Guidelines state: 

‘‘You should include documentation for 

any additional information you used for 

the cost calculations, including any 

information supplied by vendors that 

affects your assumptions regarding 

purchased equipment costs, equipment 

life, replacement of major components, 

and any other element of the calculation 

that differs from the CCM.’’ 70 FR 

39166. 

With regard to Basin Electric, vendor 

quotes for the Laramie River Station 

were not supplied. As Basin Electric 

indicated in its comments, ‘‘[t]he LRS 

cost estimates are conceptual in nature; 

thus, S&L did not procure equipment 

quotes specifically for the LRS control 

systems. Rather, equipment costs for the 

LRS projects are based on conceptual 

designs developed for the control 

systems, preliminary equipment sizing 

developed for the major pieces of 

equipment, and recent pricing for 

similar equipment.’’ 

In effect, like the IPM cost algorithms, 

the method that underlies Sargent & 

Lundy’s estimate for Basin Electric is 

empirically based on past data, and not 

vendor quotes developed specific to 

Laramie River. We have, however, 

accepted some of the costs submitted by 

Basin Electric and not accepted others. 

Comment: Even if EPA had the 

authority to require the use of the CCM, 

which it does not, EPA’s insistence on 

Wyoming’s strict compliance with the 

costing methodology set forth in the 

CCM, without adjusting the 

methodology to account for important 

site-specific factors, leads to an 

erroneous and arbitrary and capricious 

result. This is not required by the CCM. 

Indeed, the manual expressly discounts 

the usefulness of the costing 

methodology to power plants generally 

and to SCR control systems specifically, 

and it acknowledges that deviation from 

the methodology may be appropriate 

based on a user’s engineering judgment. 

The CCM provides general costing 

methodology for stationary source air 

pollution control technologies, 

applicable primarily to regulatory 

development where a rough order of 

magnitude estimate is appropriate. The 

introduction to the manual also caveats 

its usefulness when assessing control 

costs at power plants, which use 

different cost accounting. Cost Manual 

section 1.1, page 1–3. Specifically, it 

states that ‘‘[e]lectrical utilities generally 

employ the EPRI Technical Assistance 

Guidance (TAG) as the basis for their 

cost estimation processes.’’ Id. In a 

footnote, it explains that while power 

plants might still use the manual, 

‘‘comparisons between utilities and 

across the industry generally employ a 

process called ‘levelized costing’ that is 

different from the methodology used 

here.’’ Id. section 1.1, page 1–3 n.1. 

The CCM also generates rough 

estimates of costs that are less accurate 

than the site-specific cost factors that 

are more appropriate for BART 

determinations at a large power plant. 

The manual is used heavily in 

regulatory development, and the costing 

methodology is geared specifically to 

avoid the necessity of site-specific 

information and to enable estimates to 

be prepared at ‘‘relatively low cost with 

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Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 5135 

minimum data.’’ Id. section 2.2, page 

2–3 (internal quotations omitted). 

However, the level of accuracy is much 

lower than that for estimates using sitespecific information. The cost 

estimating procedure can provide a 

‘‘rough order of magnitude,’’ estimate 

that is ‘‘nominally accurate to within ± 

30%.’’ Id. section 1.2, page 1–4. Indeed, 

‘‘EPA does not claim cost estimates for 

industry at a greater than study level 

accuracy for industrial users’’ because 

‘‘the industrial user will necessarily 

have much more detailed information 

than the generic cost and sizing 

information.’’ Id. section 2.2, page 2–3, 

2–4. 

Where the user has detailed sitespecific information, the manual does 

not contemplate strict adherence to its 

costing methodology. Users may 

‘‘exercise ‘engineering judgment’ on 

those occasions when the procedures 

may need to be modified or 

disregarded.’’ Id. section 1.3, page 1–7. 

With respect to estimating factors used 

in cost estimates, ‘‘the application of an 

appropriate factor requires the 

subjective application of the analyst’s 

best judgment.’’ Id. section 2.5.4.1, page 

2–28. The manual is designed to 

provide a tool box for estimating costs 

that can be helpful to the engineer, but 

‘‘[t]he bottom line is that there is no 

clear-cut ‘cookbook’ process through 

which the analyst will be able to make 

the right informed decision each time, 

and the formalized costing methodology 

employed by the Manual is only part of 

that process.’’ Id. section 2.6, page 2–37. 

With respect to SCR cost estimations, 

the CCM is no more than a ‘‘tool to 

estimate study-level costs for high-dust 

SCR systems.’’ Id. section 2.4, page 

2–40. The ‘‘[a]ctual selection of the most 

cost-effective option should be based on 

a detailed engineering study and cost 

quotations from the system suppliers.’’ 

Id. This requirement for a more detailed 

study relying on site-specific factors is 

necessary because, as EPA 

acknowledges, the CCM’s assumptions 

regarding capital investment for SCR are 

inaccurate. Id. section 2.5.4.1, page 

2–27. For systems like SCR, ‘‘the control 

in question is either so large or so sitespecific in design that suppliers design, 

fabricate, and construct each control 

according to the specific needs of the 

facility.’’ Id. section 2.5.4.1, page 2–27. 

Thus, for these systems, ‘‘the Manual 

deviates from its standard approach of 

providing study level costs and, instead, 

provides a detailed description of the 

factors that influence the TCI [total 

capital investment] for the analyst to 

consider when dealing with a vendor 

quotation.’’ Id. Under these 

circumstances, EPA acknowledges that 

getting vendor quotes may be difficult 

because they cannot be done in an ‘‘offthe-shelf’’ fashion. Id. The engineering 

judgment of the manual’s user is 

especially critical in estimating the costs 

of an SCR retrofit: ‘‘Probably the most 

subjective part of the cost estimate 

occurs when the control system is to be 

installed on an existing facility.’’ Unless 

the original designers had the foresight 

to include additional floor space and 

room between components for new 

equipment, the installation of retrofitted 

pollution control devices can impose an 

additional expense to ‘‘shoe-horn’’ the 

equipment into the right locations. For 

example, an SCR reactor can occupy 

tens of thousands of square feet and 

must be installed directly behind a 

boiler’s combustion chamber to offer the 

best environment for NOX removal. For 

these boilers, there is generally little 

room for the reactor to fit in the existing 

space and additional ductwork, fans, 

and flue gas heaters may be needed to 

make the system work properly. 

To quantify the unanticipated 

additional costs of installation not 

directly related to the capital costs of 

the controls themselves, engineers and 

cost analysts typically multiply the cost 

of the system by a retrofit factor. The 

proper application of a retrofit factor is 

as much an art as it is a science, in that 

it requires a good deal of insight, 

experience, and intuition on the part of 

the analyst. The key behind a good cost 

estimate using a retrofit factor is to make 

the factor no larger than is necessary to 

cover the occurrence of unexpected (but 

reasonable) costs for demolition and 

installation. Such unexpected costs 

include, but are certainly not limited to, 

the unexpected magnitude of 

anticipated cost elements; the costs of 

unexpected delays; the cost of 

reengineering and re-fabrication; and 

the cost of correcting design errors. Id. 

section 2.5.4.2, page 2–28. The CCM 

cannot properly account for these 

uncertainties and thus provides that 

users can apply a ‘‘retrofit factor’’ of up 

to 50 percent to account for them. Id. 

EPA notes that ‘‘[s]ince each retrofit 

installation is unique, no general factors 

can be developed.’’ Id. 2.5.4.2, page 

2–29. 

In sum, the BART Guidelines and 

CCM were drafted and are to be applied 

as guidelines to assist the states in their 

decision making, not as inflexible 

mandates. Knowing this, states like 

Wyoming follow the BART Guidelines 

generally but make the necessary 

localized and individualized 

adjustments required to generate 

realistic, rather than formalistic, cost 

estimates. Accordingly, EPA should 

expect the states to deviate on occasion, 

not to slavishly follow the BART 

Guidelines and CCM to the point of 

generating artificial (and unrealistic) 

cost estimates. Yet that is now exactly 

what EPA contends the states must do. 

EPA’s current approach to using the 

BART Guidelines and manual as 

grounds for disapproval without 

deference to the states’ authority and 

local control is unreasonable, erroneous, 

and arbitrary and capricious. 

Response: There are only very limited 

situations in which a state or EPA can 

depart from the CCM cost methodology. 

‘‘The basis for equipment cost estimates 

also should be documented, either with 

data supplied by an equipment vendor 

(i.e., budget estimates or bids) or by a 

referenced source (such as the OAQPS 

CCM, Fifth Edition, February 1996, EPA 

453/B–96–001). In order to maintain 

and improve consistency, cost estimates 

should be based on the OAQPS CCM, 

where possible. The CCM addresses 

most control technologies in sufficient 

detail for a BART analysis. The cost 

analysis should also take into account 

any site-specific design or other 

conditions identified above that affect 

the cost.’’ 70 FR 39166. 

The guidelines for BART 

determinations make it clear that the 

CCM is the intended methodology for 

conducting a BART cost determination. 

It also states why: To maintain and 

improve consistency. However, the 

CCM does state that site-specific 

conditions should be incorporated. Sitespecific conditions could include space 

constraints, or a design feature that 

could complicate installing a control. 

However, the BART Guidelines are clear 

that the analyst should document any 

deviations from the CCM: ‘‘You should 

include documentation for any 

additional information you used for the 

cost calculations, including any 

information supplied by vendors that 

affects your assumptions regarding 

purchased equipment costs, equipment 

life, replacement of major components, 

and any other element of the calculation 

that differs from the CCM.’’ 70 FR 

39166. 

In fact, the record does not point to 

any unusual circumstances that explain 

why SCR costs in Wyoming should be 

so much higher than costs of SCR at 

other similar facilities. As will be 

demonstrated in responses to comments 

that are specific to the individual units, 

the commenters did not identify any 

unique features of their plants that 

would make of the installation of an 

SCR so difficult that the cost would be 

outside the range of what has been 

experienced elsewhere, even accounting 

for such things as elevation, which is 

discussed later in these responses to 

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140EIA, ‘‘Updated Capital Cost Estimates for 

Electricity Generation Plants,’’ November 2010, 

footnote. 2. Available at: http://www.eia.gov/oiaf/

beck_plantcosts/?src=email. 

141http://www.whitehouse.gov/sites/default/files/

omb/assets/a94/dischist-2013.pdf. 

comments. The BART Guidelines also 

provide the following explanation, 

which makes it clear that other cost 

methods are supplemental, not 

replacements for the CCM cost method: 

‘‘We believe that the CCM provides a 

good reference tool for cost calculations, 

but if there are elements or sources that 

are not addressed by the CCM or there 

are additional cost methods that could 

be used, we believe that these could 

serve as useful supplemental 

information.’’ 70 FR 39127. 

Although the focus in the second 

quote is ensuring the remaining useful 

life is incorporated into the amortization 

schedule, this passage affirms that the 

CCM’s annualized cost methodology 

should be followed. The following quote 

from the same page of the BART 

guidelines sheds light on the type of 

costing methodology employed by the 

CCM, ‘‘capital and other construction 

costs incurred before controls are put in 

place can be rolled into the first year, as 

suggested in EPA’s OAQPS CCM.’’ 

Although this passage is again focused 

on the remaining useful life, the text we 

reproduce is a reference to the basic 

CCM cost methodology—the overnight 

method. That is what is meant with the 

reference of rolling future costs into the 

first year. The ‘‘all in’’ method that 

OG&E used does not do that—it projects 

costs to a future date. Although the CCM 

does not use the term, ‘‘overnight cost,’’ 

it is widely used in industry. 

The U.S. Energy Information 

Administration defines ‘‘overnight cost’’ 

as ‘‘an estimate of the cost at which a 

plant could be constructed assuming 

that the entire process from planning 

through completion could be 

accomplished in a single day. This 

concept is useful to avoid any impact of 

financing issues and assumptions on 

estimated costs.’’ 140 In effect, the 

overnight cost is the present value cost 

that would have to be paid as a lump 

sum up front to completely pay for a 

construction project. 

As will be described in EPA’s other 

responses to comments regarding 

specific plants, commenters did not 

provide the documentation required 

under the RHR to demonstrate why their 

costs were so much higher than costs for 

other similar units. Such documentation 

would include any vendor quotes to 

include scope of supply, explanations of 

labor productivity issues with 

supporting documentation, and other 

concerns raised by commenters and 

addressed in more detail in other 

comments. 

Comment: Sargent & Lundy is both a 

design and engineering firm and a 

system supplier, and it has provided 

exactly the type of detailed scopinglevel engineering study for SCR 

contemplated by the CCM when 

selecting the most cost-effective NOX

control device. EPA acknowledges that 

with respect to SCR cost estimations, 

the CCM is no more than a ‘‘tool to 

estimate study-level costs for high-dust 

SCR systems.’’ CCM section 2.4, page 

2–40. For systems such as SCR, ‘‘the 

control in question is either so large or 

so site-specific in design that suppliers 

design, fabricate, and construct each 

control according to the specific needs 

of the facility.’’ Id. section 2.5.4.1, page 

2–27. See also id. at section 2.3, page 

2–30 (‘‘the design is highly sitespecific.’’). Importantly, the ‘‘[a]ctual 

selection of the most cost-effective 

option should be based on a detailed 

engineering study and cost quotations 

from the system suppliers.’’ Id. at 

section 2.6, page 2–43. 

The Sargent & Lundy Evaluation 

provides a cost estimate not based on 

the general, broad brush assumptions 

set forth as examples in the CCM, but on 

a conceptual design of SCR at Laramie 

River based on site-specific variables 

and Sargent & Lundy’s extensive 

knowledge of, and experience with, SCR 

installations on coal-fired utility boilers. 

Based on this conceptual design, 

Sargent & Lundy estimated equipment 

costs using example vendor quotes for 

similar projects, and used appropriate 

commodity pricing references, rates for 

labor based on industry publications 

and locality-specific data, and, where 

necessary, allowances. 

Response: As EPA has noted in 

previous responses to comments, the 

CCM is a good reference tool for 

estimating costs. With regard to Sargent 

& Lundy’s estimates at Laramie River 

Station, EPA has found deficiencies in 

the cost estimates or underlying 

assumptions that will be discussed in 

more detail in comments that are 

specific to units. 

Comment: One commenter asserted 

that the EPA’s cost evaluations 

overestimated the annualized capital 

costs of BART options by assuming an 

unrealistically high interest rate, which 

is particularly extreme in the cost 

estimates for SCR because of its 

relatively higher capital costs than the 

other control technologies evaluated. 

The commenter calculated and 

submitted documentation of what the 

commenter considers to be the real cost 

of capital interest to PacifiCorp, which 

was 5.66 percent, and to Basin Electric, 

which was around 2 percent. According 

to the commenter, the EPA continues to 

assume a much higher 7 percent interest 

rate, apparently based on the EPA’s 

mistaken belief that this rate is 

supported by the CCM. The commenter 

stated that while the CCM states the 

social interest rate ‘‘is currently set at 

seven percent’’ by the Office of 

Management and Budget (OMB), it 

references the interest rate established 

by OMB in 1992, whereas the OMB 

updates interest rates yearly and the 

current social interest rate is 1.7 percent 

for a 20-year period (citing OMB 

Circular A–94, App. C (revised Dec. 

2012)).141 The commenter concluded 

that even if EPA were correct in 

applying the social interest rate, it 

should have used the current published 

OMB rate in accordance with the CCM’s 

direction. 

The commenter went on to contend 

that the CCM recommends a sourcespecific interest rate for BART and 

reasonable progress determinations, 

rather than the social interest rate 

applied in promulgation of regulations. 

According to the commenter, the 

7-percent ‘‘social interest rate’’ is used 

to estimate the cost to society of taking 

an action. However, the CCM states that 

this social interest rate ‘‘is probably not 

appropriate for industry.’’ The 

commenter noted that the RHR requires 

the EPA to make case-by-case 

determinations of ‘‘the costs of 

compliance’’ for identified BART and 

reasonable progress options, which the 

commenter interprets as being the actual 

cost to the source of implementing the 

studied alternatives. The commenter 

indicated that where the EPA, the state, 

or industry is evaluating ‘‘the economic 

impact that [air-pollution control] 

equipment would have upon the 

source,’’ a source-specific interest rate is 

appropriate. The commenter concluded 

that the EPA erred in relying on a 

generic and outdated 7-percent social 

interest rate that resulted in a 

particularly inflated estimate of SCR 

costs, and asserted that in recalculating 

the annualized capital costs of control 

technologies, the EPA must either use 

the current social interest rate of 1.7 

percent, or more appropriately, sourcespecific rates of 5.66 percent for 

PacifiCorp Units and 2 percent for Basin 

Electric Units. 

Response: We have retained the use of 

a 7-percent interest rate in calculating 

the capital recovery factor. For cost 

analyses related to government 

regulations, an appropriate ‘‘social’’ 

interest (discount) rate should be used, 

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142Office of Management and Budget, Circular A– 

4, Regulatory Analysis, http://www.whitehouse.gov/ 

omb/circulars-a004_a_4/. 

143 ‘‘Regulatory Impact Analysis for the Final 

Clean Air Visibility Rule or the Guidelines for Best 

Available Retrofit Technology (BART) 

Determinations Under the Regional Haze 

Regulations,’’ EPA–0452/R–05–004 (June 2005). 

144http://www.whitehouse.gov/omb/circulars_

a094#8. 

145FERC Financial Report, FERC Form No. 1: 

‘‘Annual Report of Major Electric Utilities, 

Licensees and Others and Supplemental Form 3Q: 

Quarterly Financial Report, PacifiCorp, Year/Period 

of Report 2010/Q4,’’ pgs 402.2, 403, 403.2, see line 

35. 

146Black & Veatch, ‘‘Basin Electric Power 

Cooperative Laramie River Station Refined BART 

Visibility Modeling,’’ July 24, 2008, pg 25 of 176. 

147http://www.epa.gov/airmarket/progsregs/epaipm/docs/SuppDoc410MATS.pdf. 

148Wyoming EGU BART and Reasonable Progress 

Costs—10/28/2013; Wyoming EGU BART and 

Reasonable Progress Costs for Jim Bridger—10/28/ 

2013. 

not the source’s actual rate of 

borrowing. OMB Circular A–4, 

providing Federal agencies guidance on 

developing regulatory analyses, and 

dated September 17, 2003, reiterates the 

guidance found in the earlier Circular 

A–94: ‘‘As a default position, OMB 

Circular A–94 states that a real discount 

rate of 7 percent should be used as a 

base-case for regulatory analysis. The 7 

percent rate is an estimate of the average 

before-tax rate of return to private 

capital in the U.S. economy, based on 

historical data. It is a broad measure that 

reflects the returns to real estate and 

small business capital as well as 

corporate capital. It approximates the 

opportunity cost of capital, and it is the 

appropriate discount rate whenever the 

main effect of a regulation is to displace 

or alter the use of capital in the private 

sector.’’ 142

In addition, EPA calculated capital 

recovery factors using 3-percent and 

7-percent interest rates in determining 

cost-effectiveness for the Regulatory 

Impact Analysis for the BART 

Guidelines.143 The 3-percent rate is 

mainly used when private consumption 

displacement is the main impact of a 

regulatory action. This cost of 

retrofitting power plants for this action 

displaces private capital far more than 

private consumption, so 3-percent is not 

an interest rate that is applicable here. 

We consider our use of an interest rate 

of 7-percent to calculate capital recovery 

to be a conservative approach. 

Finally, the interest rate cited by the 

commenter from Appendix C to OMB 

Circular A–94, 1.7 percent, is for an 

altogether different purpose than the 

type of regulatory analysis supporting 

today’s rule. According to the discount 

rate policy described in Circular A–94, 

interest rates contained in Appendix C, 

which reflect Treasury borrowing rates, 

are for the purpose of internal planning 

decisions of the Federal Government. 

This is in contrast to regulatory actions, 

for which as noted above, the circular 

prescribes use of a ‘‘real discount rate of 

7 percent.’’ 144

Comment: One commenter stated that 

the EPA used the IPM default cost for 

auxiliary power of $0.06/kWhr for all of 

the control scenarios evaluated, which 

is much higher than the auxiliary power 

cost commonly used in costeffectiveness analyses. The commenter 

asserted that the appropriate cost of 

auxiliary power to use in a costeffectiveness analysis is the busbar cost 

of power to run the plant, not the cost 

of power sold. According to the 

commenter, auxiliary power is the 

power required to run the plant, or 

power not sold, and cost-effectiveness 

analyses are based on the cost to the 

owner to generate electricity, or the 

busbar cost, not market retail rates. The 

commenter indicated that the sitespecific data reported by PacifiCorp to 

the Federal Energy Regulatory 

Commission (FERC) in 2010 indicates 

that the busbar power cost for the 

Wyoming PacifiCorp plants is typically 

in the range of $0.02/kWhr to $0.03 lb/ 

kWhr, and for Basin Electric’s Laramie 

River Station, the company used a cost 

of $0.015/kWhr, which is consistent 

with the busbar power cost. 

Response: In EPA’s original analysis, 

we used the default values for electricity 

in the IPM model, although we agree 

that the cost of power used for auxiliary 

loads should be the cost of the owner to 

generate the electricity rather than the 

market price it could be sold at. EPA has 

reviewed FERC Form 1 for 

PacifiCorp 145 and has incorporated in 

our revised costs for each plant the 

stated cost of electricity per net kWh. 

For Laramie River Station, the costs in 

their July 2008 BART analysis 146 are 

used, as these are more consistent with 

PacifiCorp’s reported cost of generation 

(as reported to FERC) than the values 

later used by Basin Electric or by EPA 

in our original cost analysis (that our 

proposed action was based on), which 

are more reflective of retail power prices 

rather than the cost to generate. 

Comment: One commenter argued 

that the IPM model is not appropriate 

for generating site-specific cost 

estimates to evaluate the costeffectiveness of BART projects because 

it does not account for those sitespecific requirements that significantly 

impact overall project costs. 

Response: As described in our 

proposal, the IPM is a multi-regional 

linear programming model of the U.S. 

electric power sector. IPM relies upon a 

very large number of data inputs and 

provides forecasts of least-cost capacity 

expansion, electricity dispatch, and 

emission control strategies for meeting 

energy demand and environmental, 

transmission, dispatch, and reliability 

constraints. EPA has used IPM to 

evaluate the cost and emissions impacts 

of proposed rules, such as the recent 

Mercury and Air Toxics Standard 

(MATS).147

We wish to clarify that, for our 

proposed action on Wyoming’s Regional 

Haze SIP, we did not actually run IPM. 

Rather, we used information from one 

component of IPM, specifically, the 

component that develops the costs of air 

pollution control technologies. Broadly 

speaking, IPM relies upon numerous 

components and sub-components to 

specify constraints and variable values 

that feed into the model algorithms used 

during an actual IPM model run. The air 

pollution control cost development 

component is just one of these 

numerous components. We relied upon 

the cost information and equations 

contained in this component by 

manually placing them into a 

spreadsheet that calculated the capital, 

operating, and maintenance costs 

associated with pollution control 

options. While we relied upon the 

results of these spreadsheet 

calculations, we did not then use those 

results to run IPM, as the type of 

information generated by an actual IPM 

model run (e.g., generation dispatch 

decisions, capacity decisions) is not 

relevant to our action. 

We documented our use of the 

equations from IPM’s air pollution 

control technology cost component by 

placing the raw cost calculation 

spreadsheets in the docket for our 

proposal.148 These spreadsheets contain 

the IPM equations, corresponding 

variable values, selected notes regarding 

assumptions and variable ranges, as 

well as selected tables from IPM Base 

Case v4.10 documentation. Because we 

did not perform an actual IPM model 

run, the spreadsheet and contractor’s 

report in the docket for our proposal 

sufficiently document our use of the 

cost methodologies from the IPM air 

pollution control cost component. 

We disagree with commenters’ 

characterization of the costdevelopment methodology contained in 

IPM as generalized and inadequate for 

performing site-specific cost estimates. 

As noted in the documentation for 

IPM’s cost-development methodology 

for SCR, the methodology is based upon 

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5138 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

149http://www.epa.gov/airmarkets/progsregs/epaipm/docs/v410/Appendix52A.pdf. 

150Sargent & Lundy, ‘‘IPM Model—Revisions to 

Cost and Performance for APC Technologies—SCR 

Cost Development Methodology, FINAL’’, August 

2010. 

two databases of actual SCR projects.149

These databases include 2004 and 2006 

industry cost estimates prepared for the 

Midwestern Ozone Group, and a 

proprietary in-house database 

maintained by engineering firm Sargent 

& Lundy. The Midwestern Ozone Group 

information was cross-referenced with 

actual 2009 projects, and escalated 

accordingly. Sargent & Lundy then used 

the information in these databases to 

develop the equations described in the 

cost component, taking into account the 

pre-control NOX emission level, degree 

of reduction, coal type, facility size, and 

numerous other unit-specific factors. 

While a costly engineering evaluation 

that included site visits in addition to 

use of satellite imagery might produce a 

more refined cost estimate, we disagree 

that our approach does not produce sitespecific estimates. As noted by EPA in 

response to other comments, EPA’s use 

of satellite imagery enabled us to 

evaluate each of the major site-specific 

issues raised by commenters. 

Specifically, we input several sitespecific factors, such as fuel type, 

baseline NOX level, reagent cost and 

type, level of NOX reduction, sitespecific power and reagent costs, etc. 

into the algorithm. The algorithm also 

provides for adjustment of cost to 

account for retrofit difficulty. The CCM 

at section 2.5.4.2 (page 2–28 of Section 

1 Chapter 2) calls for a retrofit difficulty 

factor to account for the site-specific 

costs associated with a retrofit, such as 

demolition or moving existing 

equipment, etc. A retrofit factor is also 

used in the IPM algorithm, making it 

consistent with the approach used in 

the CCM. Per the documentation for the 

IPM algorithms: ‘‘The formulation of the 

SCR cost estimating model is based 

upon two databases of actual SCR 

projects. The comparison between the 

two sets of data was refined by fitting 

each data set with a least squares curve 

to obtain an average $/kW project cost 

as a function of unit size. The data set 

was then collectively used to generate 

an average least-squares curve fit. The 

least squares curve fit was based upon 

an average of the SCR retrofit projects. 

Retrofit difficulties associated with an 

SCR may result in capital cost increases 

of 30 to 50 percent over the base model. 

The least squares curve fits were based 

upon the following assumptions: 

Retrofit Factor =1; Gross Heat Rate = 

9880; SO2 Rate = < 3 lb/MMBtu; Type 

of Coal = Bituminous; Project Execution 

= Multiple lump sum contracts.’’ 150

Therefore, the IPM algorithm is based 

upon actual retrofit projects. As such, 

the average or typical retrofit found for 

the retrofit projects evaluated is 

assumed to use a retrofit factor of 1.0, 

and for more difficult than average 

retrofits, a retrofit factor greater than 1.0 

would apply. On page 1 of the 

documentation of the IPM model for 

SCR, it states that ‘‘Retrofit difficulties 

associated with an SCR may result in 

capital cost increases of 30 to 50% over 

the base model.’’ Therefore, EPA 

expects that retrofit difficulty factors 

may apply up to around 1.50 at the 

maximum. In effect, project elements 

that are typically included in an SCR 

retrofit are accounted for in the cost 

estimated by the algorithm, and 

deviations from those typical costs can 

be addressed by a retrofit factor. In fact, 

the algorithm expressly calls for a 

retrofit factor that can be varied (see 

Table 1 of reference, variable ‘‘B’’), 

which makes it consistent with the 

retrofit difficulty factor method called 

for in the CCM. And, because the IPM 

algorithm is based upon actual projects, 

it already incorporates contingency. 

Finally, the IPM algorithm can be 

modified for other effects, such as 

elevation, and EPA has since examined 

this and modified its estimates in this 

final action to correct for the effects of 

altitude. 

Comment: One commenter alleged 

that site elevation was not reasonably 

accounted for in EPA’s cost estimates, 

particularly for PacifiCorp’s Naughton 

Units 1 and 2 and Dave Johnston Unit 

3. The commenter explained that 

algorithms in the IPM model were 

developed for a generic coal-fired power 

plant located at or near sea level. 

However, site elevation can have a 

significant impact on control system 

sizing and design. Thus, elevation of the 

site must be considered separately and 

factored into the unit capacity (i.e. 

megawatts) accordingly due to its effects 

on the flue gas volume. The commenter 

pointed out that PacifiCorp’s Wyoming 

BART units are located at elevations 

ranging from approximately 5,000 to 

7,000 feet above mean sea level. At this 

elevation, flue gas flows will be 20–30 

percent higher than similarly sized units 

at mean sea level. The higher flue gas 

flow requires larger ductwork, larger 

reactors, and more robust support 

structures, and these items have a 

profound influence on the overall 

project cost. While Wyoming had this 

information available in its SIP, EPA 

failed to account for site elevation in its 

FIP. 

Response: EPA agrees with 

commenter that higher altitudes will 

increase the volume of flue gas, making 

it necessary to increase the crosssectional area of associated ductwork 

and the SCR reactor. Increased flue gas 

volume also impacts the fan design. 

Consequently, EPA has revised its cost 

calculations for SCR in this final action 

to address issues associated with plant 

altitude. While altitude has a significant 

impact on the cost of SCR, it does not 

make a significant difference in the cost 

of SNCR because altitude does not affect 

the urea flow rate or the associated urea 

storage system, urea circulation system, 

or metering/mixing/pumping systems. 

There may be a slight increase in the 

number of injectors due to increased 

furnace cross-section, but this is 

expected to be a small part of the total 

cost of an SNCR system. 

Comment: The same commenter 

argued that site configurations were not 

reasonably accounted for in EPA’s cost 

estimates, particularly for the Naughton 

Units 1 and 2 and Dave Johnston Unit 

3. The IPM model applies a retrofit 

factor to account for the difficulty of 

fitting new BART equipment into the 

existing site configuration. The Andover 

Report states that site visits were not 

possible. Thus, retrofit factors for 

Naughton Units 1 and 2, and Dave 

Johnston Unit 3 were determined based 

on a review of Google EarthTM images of 

the station. Accordingly, the Andover 

Report applied retrofit factors for the 

units that are highly subjective based on 

minimal site information. The 

commenter argued that, when preparing 

site-specific cost estimates, site visits 

must be conducted to evaluate the true 

complexity associated with the retrofit 

and to assess specific modifications to 

the plant that would be required to 

overcome issues associated with 

congestion, as well as difficulties 

associated with construction. Neither 

Andover nor EPA sought permission 

from PacifiCorp to visit the sites of the 

BART units, nor did Andover explain 

why it ‘‘wasn’t possible’’ to do so. Both 

Sargent & Lundy and Babcock and 

Wilcox have extensive experience with 

PacifiCorp’s Naughton and Dave 

Johnston facilities. Just since 2005, 

Sargent & Lundy has been contracted by 

PacifiCorp to perform 14 projects at 

Dave Johnston station and over 25 

projects at Naughton station. These 

projects range from site evaluations, 

studies, detailed engineering, or 

functioning as PacifiCorp’s Owner’s 

Engineer for major environmental 

retrofit engineer, procure, and construct 

projects. From having conducted many 

site visits at these stations, Sargent & 

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Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 5139 

151Hines, J.A., Kokkinos, A., Fedock, D., 

‘‘Benefits of SCR Design for Constructability’’, 

Power Gen, International 2001, December 11–13, 

2001, Las Vegas 

152Wright, B., Erickson, C., Phillipo, M., ‘‘Keys to 

Success: SCR Installations at Dominions Brayton 

Point Units 1 and 3’’, Electric Power, May 2008. 

153Cichanowicz, E., ‘‘Current Capital Cost and 

Cost-Effectiveness of Power Plant Emissions Control 

Technologies’’, Prepared for Utility Air Regulatory 

Group, January 2010. 

Lundy is very aware of site-specific 

congestion and construction challenges 

that would affect SCR installations at 

Naughton Units 1 and 2 and Dave 

Johnston Unit 3. Similar to Sargent & 

Lundy’s site-specific experience, 

Babcock and Wilcox has recently 

completed major environmental retrofit 

projects on Naughton Units 1 and 2 (wet 

scrubber additions) and Dave Johnston 

Unit 3 (dry scrubber and baghouse 

addition), making Babcock and Wilcox 

uniquely positioned to offer budgetary 

cost estimates for further retrofits to 

those facilities with significant firsthand knowledge. While Wyoming had 

much of this information available in its 

SIP, EPA failed to account for this sitespecific information in its FIP. 

Response: EPA disagrees with the 

commenter. EPA did account for sitespecific factors when performing its cost 

estimates. Because SCRs are built on or 

next to the boiler structure, they are 

often elevated, and there is usually 

equipment in one direction (the boiler) 

or the other (other air pollution control 

equipment, like an electrostatic 

precipitator (ESP), scrubber, or 

chimney) that limits access. This issue 

is complicated further with boilers that 

are located adjacent to one another—a 

common configuration. Due to the 

height of the SCR, large cranes play a 

vital role in their construction. The 

location of cranes next to where the SCR 

is going to be built can be difficult. 

As noted in a paper by Babcock & 

Wilcox,151 key issues for SCR 

constructability are site access and 

ability to locate a crane and the 

resulting erection sequence. The 

erection sequence is impacted by the 

crane that is available and whether it 

can fit on site because the crane and its 

location will limit the size of material 

that can be lifted into place. A larger 

crane allows for the lifting of larger 

pieces of ductwork, resulting in fewer 

lifts and less fabrication in the air. 

Without adequate access for a crane and 

proximity to a lay-down area for 

material, erection must be done with 

smaller pieces, which will require more 

labor and expense. 

Access around and between the 

boilers will determine crane location 

and location of material receiving areas. 

In some cases, it may be necessary to 

demolish equipment or buildings in 

order to gain adequate access. In other 

cases, it may be necessary or preferable 

to erect cranes on the top of the boiler 

structure (as was performed for the SCR 

installed at Dominion’s Brayton Point 

Unit 3).152

Because of its easy availability and it 

usefulness in providing a ‘‘bird’s eye’’ 

view of the site congestion (how close 

equipment is located to each other, 

room for a crane, etc.), site access, local 

transportation options, availability of a 

lay-down area to locate material on site, 

and other limitations around the site, 

satellite imagery has become a very 

important tool in evaluating these sitespecific factors. In fact, the major air 

pollution control original equipment 

manufacturers use satellite imagery to 

assist them in estimating site congestion 

issues, determining location of 

construction equipment and other 

limitations on and around the site in 

this way. Site visits are also useful, but 

are normally performed in addition to 

rather than in lieu of careful 

examination of satellite images. For 

example, in their comments to EPA in 

2010, the Utility Air Regulatory Group 

used satellite photographs to 

demonstrate the relative difficulty of 

different SCR installations.153

While a site visit can be useful and 

provide additional information, 

assessing satellite imagery provides 

adequate information to determine 

access to the site, access around the 

boilers, availability of space for locating 

construction equipment and materials, 

and whether buildings or equipment 

must be demolished to make room for 

the equipment. Notably, the budgetary 

price provided to PacifiCorp from 

Babcock & Wilcox was not developed 

from a site visit. Per the cover page of 

the budgetary proposal, ‘‘[g]iven the 

budgetary nature of this request, we 

have not made site visits to consider 

layout options: instead, we have used 

available drawings and made necessary 

assumptions to enable us to establish a 

basis to derive quantities of material and 

associated costs.’’ 

For SCR installations, site visits and 

more detailed boiler drawings provide 

additional information regarding air 

preheater location and whether it must 

be relocated to make room for the SCR, 

or if ductwork limitations require 

demolition of other large pieces of 

equipment such as ESPs. Such costs 

will significantly increase the cost of 

retrofitting an SCR. However, relocation 

of the air preheater or ESP was not 

identified as a concern by any of the 

commenters. Instead, most commenters 

raised retrofit issues that are commonly 

encountered in SCR retrofits, including 

location of SCR support steel and 

possible interferences with other 

equipment on site; penetration of boiler 

building by SCR ductwork; location of 

cranes for units that are side-by-side; the 

need for increased fan capacity and 

associated electrical modifications; and 

stiffening of ductwork due to increased 

pressure drop from SCR. As a result, the 

retrofit costs in the IPM algorithms that 

were developed from actual SCR 

projects should capture these more 

common retrofit issues and to the extent 

that some situations seem more 

difficult, can be addressed with retrofit 

factors. 

In its cost estimates, PacifiCorp 

provided a long comparative table (over 

100 rows with 25 columns of data) for 

Dave Johnston 3 and Naughton 1 and 2 

showing different cost estimating 

methods. The table showed vendor 

budgetary pricing for Direct Capital 

Costs based upon a proposal from 

Babcock & Wilcox. While EPA accepts 

the proposal from Babcock & Wilcox as 

part of our final action, we have a few 

general comments. The proposal, while 

providing a detailed total scope of 

supply, provides a total cost for the 

project without line items. In addition, 

the items included under the Owner’s 

scope by Black and Veatch are limited 

to: Boiler modifications; air-preheater 

modifications; medium voltage power 

source; asbestos, lead, and 

polychlorinated biphenyls (PCB) 

remediation; commercial licenses and 

permits; and spare parts. Some of these 

costs, such as air-preheater 

modifications, will not be required, 

while others will have a small to modest 

impact on the overall cost. Notably, the 

cost estimate includes items like potable 

water systems, fire protection, service 

water, other assorted auxiliaries, as well 

as roads, fences, etc. Therefore, the 

proposal is close to being ‘‘turnkey’’ and 

includes nearly all costs for the project. 

It also includes some items that would 

fall into the category of General 

Facilities. The proposal assumes that 

other modifications to the Naughton 

plant will result in abandonment of 

existing chimneys and ESPs on Units 1 

and 2. Currently, these chimneys are in 

service. Babcock & Wilcox also 

determined that the existing fans are 

likely to be sufficient for the additional 

draft loss from the SCR. As was noted 

in the Andover Report, we think that 

there may be some substantial 

conservatism built into the Babcock and 

Wilcox estimate. For example, the 

proposal states that the offset of 

Naughton Units 1 and 2 is just enough 

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5140 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

154U.S. Department of Energy, National Energy 

Technology Laboratory, ‘‘Cost Estimating 

Methodology for NETL Assessments of Power Plant 

Performance’’, DOE/NETL–2011/1455, April 2011, 

pg 4. 

155From data in Cichanowicz, J., Muzio, L., Hein, 

M., ‘‘The First 100 GW of SCR in the U.S.,—What 

Have We Learned?’’—2006 Mega Symposium. 

156AACE Recommended Practice, AACE 16R–90; 

www.aacei.org/non/rps/18R-90.pdf. 

157U.S. Department of Energy, National Energy 

Technology Laboratory, ‘‘Cost Estimating 

Methodology for NETL Assessments of Power Plant 

Performance’’, DOE/NETL–2011/1455, April 2011, 

pg 5. 

158AACE Recommended Practice, AACE 16R–87; 

www.aacei.org/non/rps/18R-97.pdf. 

to make it impractical to make a 

common structure for both SCR reactors. 

However, examination of the drawings 

in the proposal shows that Babcock & 

Wilcox has sized the ductwork to 

compensate for the offset so that the 

SCR reactors should be able to be 

supported with a common structure. 

Also, the proposal assumes that the 

abandoned stacks at both sites will be 

dismantled, although this does not 

appear to be necessary for Naughton 

Unit 2 and may not be necessary for 

Dave Johnston Unit 3 if shorter 

horizontal duct runs are used. Finally, 

comparison of the cost estimate 

provided by PacifiCorp for Naughton 

Unit 1 and 2, and Naughton 1 

especially, to historical costs shows that 

the costs are well in excess of what 

other SCRs have cost. This is 

particularly perplexing because 

additional fan capacity is not needed, 

and it is not necessary to move the air 

preheater. 

In light of the proposal and its fairly 

comprehensive scope of supply, 

PacifiCorp’s capital cost estimate 

included a number of items that EPA is 

not including in our cost estimate, as 

noted below: 

1. Process Contingency: Although the 

CCM permits a process contingency of 

5%, in EPA’s opinion this is not 

necessary today for SCR on coal-fired 

boilers firing the coals used in 

Wyoming. According to the Department 

of Energy’s National Energy Technology 

Laboratory,154 ‘‘Process contingency is 

intended to compensate for uncertainty 

in cost estimates caused by performance 

uncertainties associated with the 

development status of a technology. 

Process contingencies are applied to 

each plant section based on its current 

technology status.’’ According to the 

document, for commercially available 

technologies, process contingency could 

range from 0–10%. 

When the CCM was issued in January 

2002, SCR was commercially available 

but was only emerging in application on 

coal-fired utility boilers in the U.S. 

According to a study by 

Cichanowicz,155 there was only about 

13,000 MW of coal-fired capacity using 

SCR in the U.S. at the end of 2001, with 

nearly all SCRs installed in the prior 

two years, meaning that there was very 

limited long-term experience with SCR 

on coal-fired units. SCR usage on coalfired boilers has since increased about 

ten-fold to about 130,000 MW of coal 

capacity (over 40% of all U.S. coal 

capacity), and is therefore a very well 

proven and well understood technology 

on a wide range of U.S. coals, including 

Powder River Basin coal. As a result, the 

process contingency for SCR on coalfired utility boilers should be much 

lower today than what it was when the 

CCM was issued in January 2002, which 

was 5%. EPA believes that for SCR 

applications on utility boilers burning 

Powder River Basin coals (the Wyoming 

utility boilers), which are very well 

understood SCR applications, there 

should not be any need for process 

contingency. 

2. Project Contingency: Because the 

cost estimates developed for PacifiCorp 

are already very conservative and based 

upon detailed estimates of the labor and 

materials to build the SCR, a 15% 

project contingency is excessive. 

According to the CCM at Section 1.1, 

Chapter 1, pages 1–4: ‘‘The accuracy of 

the information in the Manual works at 

two distinct levels. From a regulatory 

standpoint, the Manual estimating 

procedure rests on the notion of the 

‘‘study’’ (or rough order of magnitude— 

ROM) estimate, nominally accurate to 

within ± 30%. This type of estimate is 

well suited to estimating control system 

costs intended for use in regulatory 

development because they do not 

require detailed site-specific 

information necessary for industry level 

analyses.’’ 

The methods and cost elements of the 

CCM were adapted from the American 

Association of Cost Engineers, or AACE 

(CCM Section 1, Chapter 2, pages 2–5). 

AACE 16R–90 156 states that, ‘‘Project 

Contingency is included to cover the 

costs that would result if a detailed-type 

costing was followed as in a definitivetype study.’’ According to National 

Energy Technology Laboratory (NETL), 

‘‘AACE 16R–90 states that project 

contingency for a ‘budget-type’ estimate 

(AACE Class 4 or 5) should be 15% to 

30% of the sum of [bare erected cost], 

[engineering, procurement, and 

construction] fees and process 

contingency.’’ 157 AACE 18R–97 defines 

different classes of estimates, from Class 

5 (least detailed) to Class 1 (most 

detailed).158 The methodology used in 

the CCM falls into a Class 4 or Class 5, 

while the methodology used by 

PacifiCorp’s contractor, Babcock and 

Wilcox, is clearly a far more detailed 

estimate that does not leave out any 

aspect of the project. Therefore, the 

project contingency factor is not 

applicable. The 15% project 

contingency factor in the CCM for SCR 

is based upon use of the cost-estimating 

method described in the CCM to 

develop the Total Direct Capital Costs. 

It is not intended to apply to a detailed 

estimate that: 

• Includes many cost items not 

explicitly included in the estimating 

method described in the CCM to 

develop the Total Direct Capital Costs 

and meant to be included in the 15% 

project contingency; and 

• Already has substantial contingency 

built into it through conservative 

assumptions. 

In fact, the CCM discusses the 

importance of not double-counting 

contingency in multiple places, such as 

retrofit factor and contingency: ‘‘Due to 

the uncertain nature of many estimates, 

analysts may want to add an additional 

contingency (i.e., uncertainty) factor to 

their estimate. However, the retrofit 

factor is a kind of contingency factor 

and the cost analyst must be careful to 

not impose a double penalty on the 

system for the same unforeseen 

conditions. Retrofit factors should be 

reserved for those items directly related 

to the demolition, fabrication, and 

installation of the control system. A 

contingency factor should be reserved 

(and applied to) only those items that 

could incur a reasonable but 

unanticipated increase but are not 

directly related to the demolition, 

fabrication, and installation of the 

system. For example, a hundred year 

flood may postpone delivery of 

materials, but their arrival at the job site 

is not a problem unique to a retrofit 

situation.’’ (emphasis added). The CCM, 

therefore, explicitly anticipates that 

some analysts may, incorrectly, apply 

multiple contingencies for the same 

areas of uncertainty even when using 

the methods described in the CCM for 

estimating Total Direct Capital Costs. 

Because the cost estimates developed 

for PacifiCorp are already very 

conservative and based upon detailed 

estimates of the labor and materials to 

build the SCR, rather than study-level 

estimates, they have double-counted 

both the costs that are intended by the 

CCM to be included in the project 

contingency when using the CCM 

method, plus they have added 

additional contingency in the form of 

conservative assumptions to address 

uncertainties in their estimate. For this 

reason, a 15% project contingency is 

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159Sargent & Lundy, ‘‘IPM Model—Revisions to 

Cost and Performance for APC Technologies—SCR 

Cost Development Methodology, FINAL’’, August 

2010, Table 1, pg. 5. 

excessive, and we have not revised our 

cost estimates to include one. 

3. General Facilities: The cost 

estimate from Babcock & Wilcox, 

submitted by PacifiCorp, includes 

several items that would fall into the 

category of General Facilities, and in 

order to avoid double-counting, EPA has 

not included an additional line item for 

General Facilities. 

Comment: The same commenter 

suggested that the project-specific 

scopes were not reasonably accounted 

for in EPA’s cost estimates, particularly 

for Naughton Units 1 and 2 and Dave 

Johnston Unit 3. Additional projectspecific scope concerns (related to the 

addition of SCR on-site) include limited 

capacity of the existing induced-draft 

fans and auxiliary power system, as well 

as National Fire Protection Associationrelated equipment reinforcement 

requirements. Larger, more powerful, 

induced-draft fans may overload 

existing electrical systems, and the 

electrical systems may require 

significant modifications. Structural 

stiffening of the duct work, and 

equipment downstream of the boiler 

and upstream of the new fans may also 

be required by National Fire Protection 

Association regulations to operate at 

more negative pressures due to the 

installation of the SCR. These types of 

costs are not generally reflected in the 

base case IPM cost algorithms, but they 

must be taken into consideration in the 

development of a project-specific cost 

estimate. Wyoming had this information 

available in the Wyoming SIP, but EPA 

failed to account for this important cost 

information in its FIP. 

Response: All SCR systems 

experience a pressure drop across the 

SCR, and therefore some consideration 

must be made to fan capacity for every 

SCR system. The algorithm used by EPA 

explicitly includes a ‘‘balance of plant’’ 

cost line item such as an allowance for 

additional fans and auxiliary electrical 

work.159 As for the duct stiffening, this 

is frequently necessary when new fans 

are installed. However, as noted in the 

proposal by Babcock & Wilcox, 

additional fan capacity is not expected 

to be necessary at Naughton Units 1 and 

2 or Dave Johnston Unit 3. 

Comment: The same commenter 

alleged that Owner’s costs were not 

reasonably accounted for in EPA’s cost 

estimates, particularly for Naughton 

Units 1 and 2 and Dave Johnston Unit 

3. Owner’s Costs include a variety of 

non-financial costs incurred by the 

owner to support implementation of the 

air pollution control project. Owner’s 

Costs are project-specific, but generally 

include costs incurred by the owner to 

manage the project, hire and retain staff 

to support the project, and costs 

associated with third party assistance 

associated with project development 

and financing. Owner’s Costs are real 

costs that the owner will incur during 

the project and are typically included in 

cost estimates prepared for large air 

pollution control retrofit projects. In 

fact, EPA’s Coal Quality Environmental 

Cost (CUECost) model includes Owner’s 

Costs (or ‘‘Home Office’’ costs) in its air 

pollution control system cost estimating 

workbook and interrelated set of 

spreadsheets. See CUECost Workbook 

User’s Manual Version 1.0, prepared by 

Raytheon Engineers & Contractors, Inc. 

and Eastern Research Group, Inc., EPA 

Contract No. 68–D7–0001, Appendix B, 

pages B–3 and B–6. Wyoming had this 

information available in its SIP, but EPA 

failed to account for this important cost 

information in its FIP. 

Response: Home office fees are 

Owner’s costs, and these are accounted 

for in the CCM in the 10% allowance for 

Engineering and Owner’s Costs. See 

CCM at Section 4.2, Chapter 2, page 2– 

44). As described in Table 2.5 of the 

CCM, engineering and home office fees 

represent 10% of purchased equipment 

costs. In this respect, we agree with the 

commenter’s assertions that the CCM 

does discuss some of the items that roll 

up into these line items. For example, 

the CCM does provide for ‘‘Engineering 

and Home Office Fees’’ that includes the 

home office and plant support costs 

described in the comments. We have 

included the portion of Owner’s Costs/ 

Surcharge in the total cost, up to the 

value specified for ‘‘Engineering and 

Home Office Fees’’ indicated by the 

CCM, which is 10%. 

The cost factors used in the CCM 

include home office fees in the 10% that 

is applied to engineering fees; however, 

the line item for Owner’s Cost in the 

IPM estimate was made zero. The reason 

Owners Cost was removed is that the 

CCM includes owner’s cost with the 

10% for engineering and home office 

fees. A 10% engineering charge was 

already applied and therefore an 

additional allowance for home office 

fees would be greater than the cost 

allowed under the CCM. Even if that 

cost were added at a 5% rate, it would 

increase capital cost by 5%. This 

difference would not change the 

determination. 

Comment: The same commenter 

argued that regional labor concerns were 

not reasonably accounted for in EPA’s 

cost estimates, particularly for Naughton 

Units 1 and 2 and Dave Johnston Unit 

3. Regional labor concerns are not 

accounted for in the IPM model. 

Regional labor characteristics must be 

taken into consideration in a sitespecific cost estimate to account for 

factors including labor availability, 

project complexity, local climate, and 

working conditions. Because the 

Naughton and Dave Johnston facilities 

are in relatively remote locations, higher 

labor rates must be paid to attract the 

kind of skilled workers required to 

construct an SCR project. In addition, 

the locations are subject to extreme cold 

and wind that can result in significant 

productivity and construction 

challenges and delays, adding to the 

overall project cost. Wyoming had this 

information available in its SIP, but EPA 

failed to account for this important cost 

information in its FIP. 

EPA’s flawed analyses of incomplete 

‘‘new’’ cost information directly 

resulted in EPA’s proposed 

requirements for PacifiCorp to install 

SCR on Naughton Units 1 and 2 and 

Dave Johnston Unit 3. In contrast, to be 

responsive to EPA’s request for 

additional information, PacifiCorp has 

solicited budgetary project-specific cost 

information from Babcock and Wilcox, 

an active and uniquely positioned 

competitive market participant for SCR 

technology, for these same units. In 

conjunction with Sargent & Lundy’s 

expertise, PacifiCorp has incorporated 

the site-specific budgetary cost 

information from Babcock and Wilcox 

into updated EPA CCM side-by-side 

comparisons with the Andover Report 

results to further demonstrate the 

inaccuracies in the new cost 

information developed by EPA. (The 

following included tables to summarize 

the results of these comparisons.) It is 

important to note that PacifiCorp has 

utilized a 20-year remaining equipment 

life and has excluded AFUDC from the 

results in the tables for comparison 

purposes. 

As demonstrated by the results in the 

tables, EPA significantly understated 

costs per ton of pollutant removed. As 

such, EPA based its cost-effectiveness 

conclusions on significantly inaccurate 

information. Before taking any final 

action on the proposed FIP, EPA must 

consider in its final BART analyses the 

additional cost information being 

provided by PacifiCorp. 

Response: EPA disagrees with this 

comment. The commenter claims that 

remote locations require offering higher 

wage rates and that conditions at the 

site, including inclement weather, 

reduce worker productivity. Because the 

commenter claims that these are 

important factors that impact cost, the 

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5142 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

160Construction Labor Research Council Union 

Wages and Supplements, available from the 

National Construction Boilermaker Employers Web 

site, www.nacbe.com. 

commenter should have provided data 

to support its assertions. The 

commenter did not provide any data to 

demonstrate that wage rates in the area 

near its facilities are higher than in more 

populated areas. The commenter also 

did not provide any specific 

productivity factors or other evidence to 

show how the commenter arrived at its 

man-hour estimates or explain how 

those estimates differ from a normal 

productivity. Without such information, 

EPA cannot review and validate the 

commenter’s claims that labor 

productivity is low or that labor cost is 

high. 

On the other hand, labor rates for 

union construction labor are available 

from the Construction Labor Research 

Council (CLRC),160 and these rates are 

consistently well below what appears to 

have been assumed in the itemized 

estimate provided with Basin Electric’s 

comments. The difference is too large to 

be explained by per diem. Because both 

Basin Electric and PacifiCorp used 

Sargent & Lundy to prepare their cost 

estimates, it is reasonable to assume that 

both companies have made similar 

assumptions. Moreover, in addition to 

the high labor rates assumed, there are 

additional line item costs for overtime 

and per diem. As a result, the estimates 

provided by commenters appears to 

incorporate additional costs or 

provisions well beyond the normal costs 

both in the labor rates and in the line 

item for additional labor costs. 

While EPA welcomes the use of SCR 

vendor estimates, such as those used by 

PacifiCorp, or engineering estimates, 

such as those provided by Basin 

Electric, specific details supporting the 

estimates must be provided in order for 

them to be useful. Without details on 

the scope of supply, the estimates 

cannot be used as a reliable source of 

information because vendor scope could 

potentially be in error or could be 

duplicative of other costs included in 

the estimate elsewhere. 

With regard to adjustment for regional 

labor concerns, neither PacifiCorp nor 

Basin Electric’s submittals were 

satisfactory. Deficiencies in Basin 

Electric’s submittal with regard to 

regional labor concerns are addressed 

elsewhere in these responses to 

comments. The proposal from Babcock 

& Wilcox, while showing a total lump 

sum price, did not demonstrate how 

they factored in regional labor concerns. 

Comment: The IPM methodology 

relied upon in the Andover Report is 

inconsistent with the assumptions set 

forth in the CCM. While EPA states that 

its revised cost analyses ‘‘followed the 

structure of the EPA CCM,’’ EPA 

acknowledges that ‘‘we have largely 

used the Integrated Planning Model cost 

calculations to estimate direct capital 

costs and operating and maintenance 

costs.’’ 78 FR 34749. See also Andover 

Update (‘‘In estimating the costs of 

controls, the following were considered: 

IPM Cost Models, US EPA Air Pollution 

CCM.’’). The IPM model is a regulatory 

model that uses cost algorithms 

developed by Sargent & Lundy to 

estimate system-wide costs of air 

pollution technology for adoption of 

national regulations. The inputs in the 

IPM model do not conform to the 

methodology set forth in the CCM, and 

neither Andover nor EPA offers any 

explanation for the discrepancies. This 

failure epitomizes the arbitrary and 

capricious nature of EPA’s decision 

making. 

A careful reading of the Andover 

Report evidences that Andover only 

followed the CCM on a limited basis, 

and in doing so, read into the CCM 

requirements that are non-existent, 

while ignoring wholesale many of the 

CCM’s recommendations. The following 

language from the report illustrates the 

concern: ‘‘The BART Guidelines 

recommend use of the EPA Air 

Pollution CCM, and the methodology 

used here for estimating costs is 

consistent with the recommendations in 

the manual, such as inclusion of taxes, 

insurance and administrative costs, and 

the use of overnight cost for capital 

cost.’’ 

As an initial matter, the CCM does not 

anywhere recommend the use of 

‘‘overnight cost’’ for estimating capital 

costs. See Section XI.B.3. The overnight 

approach assumes construction of a 

project ‘‘overnight,’’ which means a 

party would not incur any interest 

charges, including AFUDC, or 

experience any cost escalations. While a 

‘‘constant dollar approach’’ may be read 

to exclude escalation, the CCM does not 

recommend that users assume that the 

interest costs related to constructing a 

capital-intensive, multi-year project will 

cost the same as an off-the-shelf control 

technology that can be installed in a 

day. Furthermore, based on the 

acknowledgment in its report, Andover 

appears only to have followed the 

methodology set forth in the CCM in 

these three limited respects. In all other 

respects, Andover relied on the IPM cost 

algorithms for its SCR estimate, without 

regard to the CCM. For SNCR capital 

costs, Andover relied on an assumed 

$20/kW cost rather than using the IPM 

algorithms or the methodology set forth 

in the CCM. 

The high-level cost algorithms in the 

IPM model and the assumed $20/kW 

capital cost for SNCR resulted in a 

substantial underestimate of the costs of 

designing and constructing both the 

SCR and SNCR systems. For example, 

the only inputs to the IPM cost modules 

are unit size, heat input, fuel type, and 

NOX removal efficiency. The CCM uses 

these inputs, but also provides for using 

SCR design parameters, such as flue gas 

flow rate, actual stoichiometric ratio 

(the amount of reagent needed to 

achieve target NOX emissions), space 

velocity and area velocity (a measure of 

flue gas resident time in the SCR 

reactor), catalyst volume, SCR reactor 

dimensions, and reagent consumption. 

The CCM methodology includes similar 

design parameters specific to SNCR, 

which the IPM model does not include 

and which Andover did not consider in 

its cost estimate. 

Andover also used the IPM model to 

calculate indirect capital costs in the 

SCR cost estimate. The IPM model 

includes in its indirect capital cost 

algorithm factors for Engineering and 

Construction Management, Labor, and 

Contractor Profit/Fees. Andover 

removed from the IPM capital cost 

calculation both Owner’s Costs and 

AFUDC. Moreover, the IPM Model does 

not include a number of other inputs 

that are included in the CCM, including 

preproduction costs, inventory capital, 

and initial catalyst costs, and Andover 

did not adjust the model to incorporate 

these additional costs. Andover’s 

selection of certain IPM model inputs 

and exclusion of inputs in the CCM 

resulted in the substantial 

underestimation of the indirect capital 

costs necessary to design and install an 

SCR system. 

For SNCR, Andover arbitrarily 

assigned a capital cost of $20/kW, 

without using the IPM algorithms or 

performing an analysis of direct and 

indirect costs consistent with the CCM. 

Andover relied on the IPM model to 

calculate operating and maintenance 

costs except for urea reagent costs for 

SNCR, which uses factors that differ 

from those recommended in the CCM 

and costs utilized by Sargent & Lundy. 

The model’s simplistic treatment of 

catalyst costs, for example, is 

inconsistent with the recommendations 

in the CCM and underestimates annual 

catalyst replacement costs for SCR and 

for SNCR. For SNCR, Andover adjusted 

the urea utilization rate from the IPM 

model without explanation, which cut 

in half estimated annual urea costs. 

Andover also assumed urea would be 

used as the reagent for SCR, which 

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Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 5143 

161Email from Alex Dainoff, Fuel Tech, to James 

Staudt, Andover Technology Partners, Wednesday, 

June 27, 2012. 

162From data in Cichanowicz, J., Muzio, L., Hein, 

M., ‘‘The First 100 GW of SCR in the U.S.,—What 

Have We Learned?’’—2006 Mega Symposium, page 

4. 

163Cichanowicz, J.E., ‘‘Current Capital Cost and 

Cost-Effectiveness of Power Plant Emissions Control 

Technologies’’ Prepared for, Utility Air Regulatory 

Group, January 2010. 

increased reagent costs above those 

calculated by Sargent & Lundy based on 

the use of anhydrous ammonia. 

Neither Andover nor EPA explains 

why the cost estimate uses only limited 

portions of the CCM, or why Andover 

believes use of the IPM cost 

methodology is somehow more 

representative of the costs of control 

that would be incurred by Basin Electric 

for installation of SCR and SNCR 

systems. It is inherently contradictory, 

and therefore arbitrary and capricious, 

for EPA to base its proposed disapproval 

of Laramie River BART on the alleged 

failures of Wyoming to follow the CCM, 

while at the same time relying on a 

consultant’s report that does not comply 

with those same standards. 

Response: EPA disagrees with the 

commenter. The methodology used by 

EPA is consistent with the CCM for the 

following reasons: (1) EPA used the 

overnight cost method, which excludes 

certain cost elements such as AFUDC; 

(2) The comparative nature of BART 

costs makes use of the IPM algorithms 

a reasonable approach; and (3) as 

demonstrated in the Exhibit 14 of Basin 

Electric’s comments, use of the cost 

equations in the CCM would have 

actually resulted in lower costs than 

predicted by the IPM algorithms. 

Moreover, both the IPM algorithms 

and Sargent & Lundy’s estimates for 

Basin Electric are empirically based 

from data collected at other projects. 

According to page 21 of Exhibit 14 to 

Basin Electric’s comments: ‘‘. . . Cost 

estimates prepared for LRS are based on 

equipment costs and budgetary quotes 

available from similar projects and 

Sargent & Lundy’s experience with the 

design and installation of retrofit SNCR 

and SCR control systems. The LRS cost 

estimates are conceptual in nature; thus, 

Sargent & Lundy did not procure 

equipment quotes specifically for the 

LRS control systems. Rather, equipment 

costs for the LRS projects are based on 

conceptual designs developed for the 

control systems, preliminary equipment 

sizing developed for the major pieces of 

equipment, and recent pricing for 

similar equipment . . .’’ As a result, the 

estimates provided by Basin Electric are 

not more valid than those developed by 

EPA. 

Commenter claims that AFUDC 

should be included in the cost analysis. 

As described in our responses to other 

comments, the CCM explicitly excludes 

AFUDC from control costs, and EPA’s 

estimates were correct in excluding 

AFUDC. This is central to the overnight 

cost methodology. 

Commenter is critical of EPA’s 

method for estimating SNCR capital 

cost. With regard to SNCR cost 

methodology, the cost of SNCR is driven 

primarily by the operating cost. Capital 

cost has a small effect on total cost of 

SNCR. Therefore, a simplifying 

assumption that yields a reasonable 

estimate of capital cost will result in an 

annualized cost accurate to within ± 

30%. Based upon input from technology 

vendors on cost for other units 161 and 

based upon the fact that EPA’s 

contractor Andover has over 25 years of 

direct experience designing, specifying 

and optimizing SNCR systems, $20/kW 

was a very reasonable estimate. EPA’s 

contractor also reviewed the SNCR 

algorithms developed by Sargent & 

Lundy for EPA and is of the opinion 

that in most cases $20/kW provides a 

better estimate than the IPM algorithm 

because the IPM algorithm assumes 

greater economies of scale than 

generally exist in SNCR applications. 

On the other hand, as will be 

described later in this response, the high 

reported furnace temperature at Basin 

Electric’s Laramie River Station means 

that SNCR will require a more complex 

injection system and will have a higher 

urea injection rate than what is typical 

for most SNCR systems. For this reason 

EPA has accepted the capital cost of 

SNCR estimate provided by Basin 

Electric. In any event, SNCR capital cost 

generally has a small effect on cost 

compared to operating cost. 

Commenter is critical of EPA’s use of 

the IPM algorithm as not utilizing the 

same input design parameters. As 

described in other responses to 

comments, the IPM algorithm for SCR 

incorporates either directly or by 

inference all of the inputs the 

commenter has raised. But, commenter 

is incorrect about some of the claimed 

inputs. Stoichiometric ratio, space 

velocity, area velocity, catalyst volume, 

SCR reactor volume, and reagent 

consumption are not inputs to an SCR 

design, but are all direct results of 

design calculations using the inputs of 

initial NOX level, final NOX level (and 

by inference percent reduction), unit 

size, heat rate, and fuel characteristics— 

all inputs to the IPM model. Gas flow 

rate is also normally calculated based 

upon fuel type, unit size and heat rate— 

again, IPM inputs. The IPM model 

therefore directly develops SCR reactor 

cost based upon all of the same inputs, 

but using algorithms based upon a 

database of the cost of actually 

constructed units. Other costs, such as 

preproduction costs and initial 

inventory of ammonia are incorporated 

into the capital costs. In any event, these 

are very small portions of total cost. 

Initial catalyst cost is incorporated into 

the direct capital costs of the project in 

the IPM estimate, and in any event, 

initial catalyst cost is typically a very 

small portion of total capital cost. 

Commenter is critical of EPA’s 

treatment of the associated costs for 

replacement catalyst. Regarding 

treatment of catalyst cost, EPA’s 

approach is reasonable, factoring in the 

NOX reduction, coal, facility size, 

capacity factor, and catalyst cost—all of 

the same factors that impact catalyst 

replacement cost. PacifiCorp, on the 

other hand, uses excessive catalyst 

replacement costs. PacifiCorp’s use of 

$290/ft3 for replacement catalyst cost 

equates to $10,422/m3. This is nearly 

double the current cost of new catalyst. 

The difference cannot be accounted for 

in the labor to install catalyst, which is 

a very small fraction of the catalyst 

cost.162 Moreover, replacement catalyst 

is frequently regenerated catalyst which 

costs roughly half the cost of new 

catalyst. EPA conservatively assumed 

new catalyst at roughly $5,500/m3,163

when in fact most catalyst 

replenishments will likely be at a much 

lower cost due to the extensive 

availability of regenerated catalyst. As a 

result, EPA’s catalyst costs are much 

more reasonable and are in fact, 

conservative in light of the availability 

of regenerated catalyst. 

Commenters are critical of EPA’s 

estimates of SNCR reagent consumption. 

Because of the importance of reagent 

consumption on SNCR system capital 

and operating cost, chemical utilization 

is an important factor. Utilization is a 

measure of how efficiently the SNCR 

reagent reduces NOX. With SNCR, NOX

reduction does not occur on a one-forone basis as reagent is added because a 

portion of the chemical introduced does 

not contribute to NOX reduction. The 

utilization of reagent (normally urea) 

declines as temperature (or carbon 

monoxide concentration) increases 

because more of the urea becomes 

oxidized (forming NOX), which reduces 

the amount of reagent available for the 

NOX reduction reaction. The net 

difference between the amount of NOX

reduced and the amount of NOX formed 

equals the overall reduction in NOX, 

and at a sufficiently high temperature, 

NOX can actually increase as urea is 

injected. Hence, furnace temperature is 

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5144 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

164Email from Alexander Dainoff to Jim Staudt, 

June 27, 2012. 

165Exhibit 16 to Basin Electric comment, page 25. 

166Staudt, J., Casill, R., Tsai, T., Ariagno, L., 

‘‘Commercial Application of Urea SNCR for NOX

RACT Compliance on a 112 MWe Pulverized Coal 

Boiler’’, 1995 EPRI/EPA Joint Symposium on 

Stationary Combustion NOX Control, Kansas City, 

May 16–19, 1995. 

167Staudt, J, Hoover, B., Trautner, P., McCool, S., 

Frey, J., ‘‘Optimization of Constellation Energy’s 

SNCR System at Crane Units 1 and 2 Using 

Continuous Ammonia Measurement’’, The MEGA 

Symposium, Baltimore, MD, August 31–September 

2, 2010. 

168Staudt, J.E., Kehrer, K., Poczynec, J., Cote, R., 

Pierce, R., Afonso, R., and Sload, A., ‘‘Optimizing 

Selective Non-Catalytic Reduction Systems for CostEffective Operation on Coal-Fired Electric Utility 

Boilers’’, presented at ICAC Forum ’98, Durham, 

March 1998. 

169Email from Potash Corporation to Andover 

Technology Partners, September 27, 2013. 

170 70 FR 39166, footnote 15. 

171Wage & Benefit Information, Western States 

Field Constructions Bargaining Agreement, 

Effective January 1, 2013 through September 31, 

2013. 

172Construction Labor Research Council Union 

Wages and Supplements for the Period 07/01/2008– 

07/01/2013. Available from the National 

Association of Construction Boilermaker Employers 

Web site: www.nacbe.org. 

173Appendices to Exhibit 14. Page 6 of SCR 

estimate (pdf page 43). 

a critical parameter in determining 

utilization. 

Chemical utilization is equal to the 

percent NOX reduction divided by the 

treatment rate, expressed in terms of 

Normalized Stoichiometric Ratio. The 

IPM model assumes a default chemical 

utilization rate of 15%. Commenter 

states that Andover adjusted the urea 

utilization rate in the IPM model 

without explanation. On the contrary, 

on page 3 of its memo, Andover 

provided actual utility data and 

explained why 25% was a more 

common utilization rate for utility 

boilers. Chemical utilization is a strong 

function of furnace temperature, and 

because chemical consumption is the 

single largest expense associated with 

SNCR, using an incorrect chemical 

utilization will lead to large 

discrepancies in cost. 

Commenter states that the furnace exit 

gas temperature is 2710 °F. While EPA 

suspects that this may be in error (high), 

it is the data provided by the company. 

If this temperature is correct, SNCR may 

only be marginally effective. Sargent & 

Lundy estimated a chemical utilization 

of 12%, which is possibly optimistic. 

Information from Fuel Tech, the leading 

supplier of SNCR technology, stated that 

at the unusually high furnace exit 

temperature of 2500 °F, well below 

2710 °F assumed by Sargent & Lundy, a 

25% reduction was possible at a 

particular facility from a similar NOX

baseline with a Normalized 

Stoichiometric Ratio of 1.75 (utilization 

of 14.3%). Hence, EPA will accept the 

12% utilization and 20% NOX reduction 

assumed by Sargent & Lundy for 

Laramie River Station.164

The model in the IPM, which was 

developed by Sargent & Lundy, assumes 

a utilization rate of 15%, which 

Andover’s data, as well as Fuel Tech’s 

input, demonstrates is too low for most 

facilities. It is therefore a very 

conservative estimate of chemical 

utilization. In fact, Andover reviewed 

Sargent & Lundy’s model when it was 

developed for EPA and Sargent & Lundy 

did not provide any supporting data 

regarding the assumed utilization rate at 

that time. However, in light of the high 

assumed furnace temperature at Laramie 

River Station, EPA is assuming a 12% 

chemical utilization at a 20% NOX

removal rate for those units.165

On the other hand, in the October 28, 

2013 memo by Andover for EPA, test 

data for utility boilers was provided 

showing that 25% is a more reasonable 

utilization rate for most units. Moreover, 

Andover’s principal has conducted 

numerous electric utility SNCR 

optimization programs, among them are 

programs described in referenced 

papers, which makes him qualified to 

make this determination.166 167 168 So, in 

applications where more typical furnace 

temperatures are expected, a chemical 

utilization rate closer to 25% can be 

reasonably assumed. 

It is also likely that, in light of the 

higher furnace exit temperature at 

Laramie River Station, it will be 

necessary to utilize a more complex and 

costly injection system that requires 

injection of urea into convective regions 

of the furnace using multiple-nozzle 

lances in addition to the more typical 

wall injectors. For this reason, EPA is 

accepting the capital cost developed by 

Sargent & Lundy for Basin Electric of 

$16.9 million per unit. 

Regarding the reagent used for SCR, as 

the commenter points out, EPA’s initial 

estimates assumed that urea would be 

used as the feed reagent for SCR, which 

results in a higher reagent cost than for 

anhydrous ammonia. Because 

commenters have indicated that 

anhydrous ammonia will be used as a 

reagent rather than urea, EPA’s revised 

estimates assume ammonia as a reagent. 

This will result in lower reagent costs. 

EPA is also using anhydrous ammonia 

costs provided by Potash Corporation 

instead of the value provided by the 

utility.169 The cost used by EPA 

represents the actual delivered cost of 

anhydrous ammonia, as quoted by a 

major reagent supplier. 

Basin Electric provided a site-specific 

estimate. EPA generally supports the 

use of vendor quotes and site-specific 

estimates but only as used within the 

parameters of the overnight cost 

methodology and the CCM. The BART 

Guidelines, are clear that ‘‘[y]ou should 

include documentation for any 

additional information you used for the 

cost calculations, including any 

information supplied by vendors that 

affects your assumptions regarding 

purchased equipment costs, equipment 

life, replacement of major components, 

and any other element of the calculation 

that differs from the CCM.’’ 170 When 

supporting documentation to site 

estimates are not provided, assumptions 

based upon these cannot be considered. 

Much of the documentation owners 

cite to support additional costs were not 

provided to us. For instance, although 

Basin Electric provided a table that 

listed their cost line items, this 

spreadsheet (in pdf format), over 600 

lines in length (and including line items 

such as 4′′ gravel surfacing and chain 

link fence), was stripped of all cell 

calculations, preventing any meaningful 

review. 

There was also inadequate 

explanation for how man-hour rates 

were developed. For example, current 

union boilermaker rates for Lodge 101 

(Denver) range from $57.62 per hour for 

a Journeyman to $60.12 per hour for a 

Foreman, with apprentices at lower 

rates.171 The CLRC reports similar union 

boilermaker rates in the MountainNorthern Plains area at $56.59/hr for 

July 2013.172 For non-union 

boilermakers, the cost is expected to be 

less. Yet, for tasks that appear to be for 

boilermakers (ductwork) rates of $90.79 

per man-hour are used.173 This is a large 

unexplained difference in cost. It may 

be that part of it is per diem ($55/day 

for over 70 miles and $70/day for over 

120 miles per Lodge 101 information), 

but per diem does not explain the full 

difference. Per diem, however, is also 

provided as a separate cost later in the 

estimate, making the high labor rate 

more difficult to explain. Some portion 

may be for overtime, but there is no 

explanation provided (overtime is also 

added as a separate line item later in the 

estimate). Without an explanation it is 

not possible to evaluate these costs, 

which clearly deviate from publicly 

available costs for labor. In addition to 

not providing the necessary required 

supporting documentation, Basin 

Electric did not follow the overnight 

cost methodology. Thus, Basin Electric 

has failed to meet the test that is 

required to support deviations from the 

CCM. 

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174http://www.epa.gov/airmarkets/progsregs/epaipm/docs/v410/Appendix52A.pdf. 

Comment: The IPM methodology 

relied upon in the Andover Report is 

inconsistent with the BART Guidelines. 

The Guidelines require that to conduct 

a cost analysis, a state must ‘‘[i]dentify 

parameters’’ for emission control and 

then ‘‘[d]evelop cost estimates based 

upon those design parameters.’’ 70 FR 

39166. The cost analysis includes 

development of ‘‘estimates of capital 

and annual costs,’’ based on the CCM 

‘‘where possible,’’ but ‘‘tak[ing] into 

account any site-specific design or other 

conditions identified above that affect 

the cost of a particular BART technology 

option.’’ Id. Andover failed to adhere to 

the methodology set forth in the CCM 

‘‘where possible.’’ More importantly, 

however, Andover neither followed the 

three-step process in the BART 

Guidelines for estimating costs of 

compliance nor appropriately 

considered the critical site- and projectspecific variables that affect the cost of 

both SCR and SNCR at Laramie River. 

EPA’s failure to comply with its own 

Guidelines results in an inaccurate cost 

estimate that should not form the basis 

of a BART determination. 

Response: EPA disagrees with the 

commenter. The three step process was 

followed for all cost estimates for 

affected Wyoming units. The three-step 

process requires that states (or EPA): (1) 

Identify the emissions units being 

controlled; (2) Identify design 

parameters for emission controls; and 

(3) Develop cost estimates based upon 

those design parameters. The BART 

affected units were already identified by 

the State and confirmed by EPA, which 

addresses step one. 

Andover clearly identified design 

parameters that are included in the 

spreadsheets associated with the memo 

under the tab ‘‘Plant Data Summary’’. 

This includes plant data such as fuel, 

capacity, capacity factor, heat rate, 

baseline and controlled NOX level, 

retrofit factor and firing configuration. 

These parameters are directly used in 

the cost analysis that developed capital 

and annual costs. Andover performed 

the cost estimates as described in the 

spreadsheet. Andover considered site 

and project-specific parameters as 

described in other responses to 

comments. 

Commenters may disagree with the 

cost methodology used by EPA, and our 

response to comments regarding the cost 

methodology used is in other responses; 

however, there is no question that EPA 

followed the three-step process. 

Comment: The IPM methodology 

relied upon in the Andover Report is 

inconsistent with the three-step process 

in the BART Guidelines for estimating 

costs of compliance. The three-step 

process in the BART Guidelines 

requires: (1) Identification of emission 

units being controlled; (2) identification 

of design parameters for emission 

controls; and (3) development of cost 

estimates based on those design 

parameters. 70 FR 39166. The Andover 

Report did not adequately define the 

emission units being controlled, failed 

to identify appropriate site-specific 

design parameters that affect cost and 

performance of these controls; and 

developed cost estimates that are 

neither technically indefensible nor 

representative of the costs of SCR and 

SNCR systems at Laramie River. 

Andover’s reliance on the overly 

simplistic IPM model precluded an 

appropriate BART analysis. First, 

because the IPM cost algorithms are 

designed to provide high-level system 

cost, Andover used generalized 

information regarding design and 

baseline operating conditions at the 

Laramie River boilers to identify the 

emission units to be controlled. Second, 

because the IPM model includes only 

four inputs, Andover’s cost analysis 

could not account for unit-specific 

operating parameters that affect both 

design of the control system and the 

attendant costs of installing the controls. 

As a result, the Andover Report failed 

to comply with the requirement in the 

BART Guidelines that cost estimates 

account for site-specific variables. 70 FR 

39166. The site-specific design and 

operational variables have an important 

effect on the costs of NOX control 

technologies at Laramie River, 

particularly the installation of SCR. 

Finally, because Andover used generic 

inputs to an overly simplistic model, the 

resulting cost estimate is not technically 

defensible. As Sargent & Lundy opined 

‘‘[b]ased on our evaluation of the 

Andover cost estimates, it is our opinion 

that cost estimates prepared by Andover 

are not reflective of the costs BEPC 

would incur to install air pollution 

control systems on LRS Units 1, 2, & 3, 

and that control technology costs 

included in the February 7, 2013 

Andover Report should not be used to 

determine BART for the Laramie River 

generating units.’’ 

Response: EPA disagrees with the 

commenter. The three step process 

requires that states (or EPA): (1) Identify 

the emissions units being controlled; (2) 

Identify design parameters for emission 

controls; and (3) Develop cost estimates 

based upon those design parameters. 

Commenter states that ‘‘The Andover 

Report did not adequately define the 

emission units being controlled, failed 

to identify appropriate site-specific 

design parameters that affect cost and 

performance of these controls; and 

developed cost estimates that are 

neither technically indefensible nor 

representative of the costs of SCR and 

SNCR systems at LRS.’’ However, the 

BART affected units were clearly 

identified and defined in the analysis. 

The units are identified and described 

in the memo and the associated 

spreadsheets. 

EPA’s contractor clearly identified 

design parameters that are included in 

the spreadsheet associated with the 

memo under the tab ‘‘Plant Data 

Summary’’. This includes plant data 

such as fuel, capacity, capacity factor, 

heat rate, baseline and controlled NOX

level, retrofit factor and firing 

configuration. These parameters are 

directly used in the cost analysis that 

developed capital and annual costs. 

This is the very same data as used by 

Sargent & Lundy in their analysis, 

except that EPA did not correct for 

elevation, which EPA is correcting in 

this response to comments and 

calculations. 

Andover then performed the cost 

estimates as described in the 

spreadsheet using algorithms developed 

by Sargent & Lundy that utilize the same 

inputs as used by Sargent & Lundy in 

their analysis for commenters. Other 

than a site visit and an adjustment for 

elevation, commenters have not 

identified any other inputs that they 

used that are different or not the direct 

result of the inputs utilized by EPA. 

With this response to comments EPA is 

correcting cost estimates for elevation 

and EPA has provided detailed 

comments regarding how site 

characteristics were addressed using 

available satellite imagery and why this 

is a valid approach for providing 

estimates that are acceptable for BART 

analysis. 

We disagree with commenter’s 

characterization of the cost development 

methodology contained in IPM as 

generalized. As noted in the 

documentation for IPM’s cost 

development methodology for SCR,174

the cost estimate methodology is based 

upon two databases of actual SCR 

projects. These databases include 2004 

and 2006 industry cost estimates 

prepared for the Midwestern Ozone 

Group, and a proprietary in-house 

database maintained by Sargent & 

Lundy. The Midwestern Ozone Group 

information was cross-referenced with 

actual 2009 projects, and escalated 

accordingly. Sargent & Lundy then used 

the information in these databases to 

develop the equations described in the 

cost component taking into account the 

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5146 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

pre-control NOX emission level, degree 

of reduction, coal type, facility size, and 

numerous other unit-specific factors. 

While a costly engineering evaluation 

that included site visits in addition to 

our use of satellite imagery would 

potentially produce a more refined cost 

estimate, we disagree that our approach 

has produced cost estimates that do not 

adequately address site-specific issues. 

As noted by EPA in our responses 

related to satellite imagery, EPA’s use of 

satellite imagery enabled us to evaluate 

each of the major site-specific issues 

raised by commenters. 

Comment: The Andover Report fails 

to consider site-specific conditions as 

required by the BART Guidelines. The 

BART Guidelines and the CCM 

emphasize the importance of taking into 

account site-specific conditions in 

developing a cost estimate, particularly 

with respect to construction of SCR. 70 

FR 39166 (cost estimates should ‘‘into 

account any site-specific design or other 

conditions . . .’’). See also CCM section 

2.4, page 2–40 (with respect to SCR, 

‘‘[a]ctual selection of the most costeffective option should be based on a 

detailed engineering study and cost 

quotations from system suppliers.’’); id. 

section 2.5.4.1, page 2–27 (‘‘Manual 

deviates from its standard approach of 

providing study level costs [for SCR] 

and, instead, provides a detailed 

description of the factors’’ influencing 

costs). Yet as Andover acknowledges in 

its report, its engineers did not visit 

Laramie River and had no engineering 

plans, process flow diagrams, or other 

site-specific information regarding 

Laramie River when it developed EPA’s 

cost estimate. The only information 

Andover collected regarding the site 

was the generating capacity of the 

station, annual heat input for a baseline 

period, NOX emission rates for certain 

years, and the type of coal burned. As 

a result, Andover’s cost estimation 

methodology fails to comply with the 

BART Guidelines or follow the 

methodology recommended by the 

CCM, and the final estimate radically 

underestimates the cost for SCR and 

SNCR at Laramie River Station. 

Moreover, Andover’s use of the IPM 

model compounded its failure to review 

site-specific considerations relevant to 

costing SCR or SNCR at Laramie River 

Station. Indeed, the fact that the model 

has only four input parameters, and 

does not take into account other sitespecific parameters that are required by 

the BART Guidelines and recommended 

by the CCM, renders any resulting cost 

estimate both technically and legally 

deficient. As noted by Sargent & Lundy, 

which developed the IPM algorithms for 

SCR and SNCR, ‘‘[b]ecause of the 

limited number of site-specific inputs, 

the IPM cost algorithms provide only 

order-of-magnitude control system 

costs, and do not provide case-by-case 

project-specific cost estimates meeting 

the requirements of the BART 

Guidelines.’’ 

By relying on the IPM model, 

Andover deliberately skirted the issue of 

site-specific conditions, other than the 

most generic inputs of unit size, heat 

rate, coal type, and a retrofit factor. The 

Andover Report describes the retrofit 

factor in such a way as to emphasize its 

site-specific nature, and yet makes no 

attempt to carefully analyze the sitespecific variables inherent in the 

application of the retrofit factor: ‘‘The 

retrofit factor is a subjective factor used 

to account for estimated difficulty of the 

retrofit that is unique to the facility. 

Because site visits were not possible, the 

retrofit factor was estimated from 

satellite images that provide some 

insight to the configuration of the units 

and degree of congestion around the site 

and in the vicinity of where the SCR 

would be installed. These factors impact 

the ability to locate large cranes on the 

site—that impact how the SCR is 

assembled (are large sections lifted into 

place or is the SCR ‘‘stick built’’), how 

much duct work is needed, if the SCR 

must be built onto a large, elevated steel 

structure or can be built near the 

ground, and if other equipment must be 

relocated to accommodate the space of 

the SCR.’’ 

The Andover Report never provides 

any analysis of these site-specific factors 

in determining the appropriate retrofit 

factor for Laramie River. Andover 

merely notes that the difficulties of 

retrofitting an SCR unit at Units 1 and 

3 is ‘‘average,’’ and applies a retrofit 

factor of 1.0 to Units 1 and 3. Andover 

does note that retrofit at Unit 2 will be 

more difficult and added an adjustment 

for retrofit difficulties at Unit 2, but 

with no explanation of what unique 

site-specific conditions contributed to 

the factor. Instead, the report notes ‘‘a 

modestly higher SCR retrofit difficulty 

factor is assumed for Unit 2 because 

access will be poorer than for Units 1 or 

3.’’ In sum, Andover makes no 

adjustments for Units 1 or 3 and accords 

a 20% cost retrofit factor to Unit 2, 

though it had previously noted that 

‘‘when using the IPM Capital Cost 

Model, retrofit difficulties associated 

with an SCR may result in capital cost 

increases of 30% to 50% over the base 

model.’’ Thus, even when it accords a 

retrofit factor, as it did for Unit 2, 

Andover inexplicably low balls that 

retrofit factor and the attendant cost 

increase for the SCR system. When 

Andover’s retrofit factors are compared 

across units and across facilities, it 

appears that Andover arbitrarily 

assigned the retrofit factors without 

adequately accounting for site 

congestion and constructability issues. 

Subjective retrofit factors, especially 

factors randomly chosen without 

knowledge of site conditions, cannot 

account for site-specific circumstances 

as provided in the BART Guidelines. 

A comparison of the broad brush 

approach taken by Andover with the 

detailed, site specific, scoping-level 

study taken in the Sargent & Lundy 

evaluation illustrates the inadequacies 

with Andover’s methodology. As an 

initial matter, Andover made a 

fundamental error by failing to account 

for the effect of site elevation on the 

project costs. Laramie River Station is 

situated at 4,750 feet above sea level, 

resulting in flue gas volumes 

approximately 20% greater than a 

similarly sized unit at sea level. These 

larger flue gas volumes will require 

larger SCR reactors, larger duct work, 

and increased structural support. None 

of these additional costs are accounted 

for in Andover’s estimate because the 

IPM model assumes the plant is located 

at sea level. Indeed, IPM model 

guidance provides that ‘‘elevation of the 

site must be considered separately and 

factored into the MW size accordingly 

due to its effects on the flue gas 

volume.’’ Id. (citing the IPM SCR Cost 

Development Document (August 2010)). 

Andover’s reliance on the IPM model 

also resulted in failure to account for a 

regional labor productivity factor. 

Regional productivity must be taken 

into consideration in a site-specific cost 

estimate to account for local workforce 

characteristics, labor availability, project 

location, project complexity, local 

climate and working conditions. This is 

a key factor for Laramie River Station, 

because experienced, knowledgeable 

labor is difficult to acquire and requires 

premium pay, further adding to the cost 

of an SCR system. 

The most substantial failing of the 

Andover Report, however, is its reliance 

on an aerial photograph of the plant 

from Google EarthTM to account for sitespecific conditions at Laramie River 

Station. There are numerous important 

elements that cannot be discerned from 

an aerial photograph. Specifically, a 

Google EarthTM photograph cannot 

identify: (1) The site constraints posed 

by the location of the coal conveyor 

rooms; (2) the location of the existing 

fan buildings and the space constraints 

between the existing fan buildings and 

the existing electrostatic precipitators; 

(3) the necessary information to 

determine duct work routing and SCR 

tie-ins to the existing economizers and 

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Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 5147 

175Wyoming Regional Haze SIP, Attachment A, 

‘‘Basin Electric Power Cooperative Laramie River 

Station Refined BART Visibility Modeling’’, 

prepared for Basin Electric Power Cooperative by 

Black & Veatch Corporation, July 24, 2008, 

Attachment 1, page 7 of 7. 

air heaters; and (4) information 

regarding plant subsystems such as the 

fan capacity, equipment reinforcement, 

auxiliary power systems, electrical plant 

system capacity, and other plant 

subsystems that would be affected by 

installation and operation of the SCR 

systems. Further, the aerial photograph 

provides no information about where 

the ammonia handling system could be 

located and necessary pipe routing and 

other support systems for the ammonia 

handling system. Nor does it show the 

need to penetrate the 20-story boiler 

wall and provide related structural 

support to install duct work, to provide 

structural support columns for the SCR 

reactors in very tight spaces, and the 

need for special cranes to lift heavy 

equipment into place in a congested 

space. 

While Andover indicated that some of 

these site-specific issues are addressed 

by the retrofit factor, the fact that 

Andover accorded no retrofit factor to 

Laramie River Station Units 1 and 3, 

and low balled the retrofit factor for 

Unit 2, resulted in a failure to include 

site-specific costs in its estimate for the 

Laramie River, in direct contravention 

of the requirements of the BART 

Guidelines and suggestions of the CCM. 

Site-specific conditions are illustrated 

in Section 5.1.1.1 of the Sargent & 

Lundy Critique. Finally, Andover failed 

to include costs for the balance of plant 

systems required for the SCR. Sargent & 

Lundy Critique section 5.1.1.3. These 

items, which require enlarging existing 

plant systems to provide for the 

additional power and airflow and other 

systems necessary to operate the SCRs, 

include the following: (1) Replacement 

of induced draft fans by larger fans to 

support the SCR units; (2) Upgrading of 

the existing electrical system to support 

the SCR units; (3) Structural stiffening 

of the duct work downstream of the 

SCRs; and (4) Expand existing control 

system to accommodate six new SCRs 

(two for each generating unit). 

Wyoming used actual, site-specific 

data regarding the BART-eligible 

sources in development of its plan. In 

contrast, EPA did not use site-specific 

data; instead, it relied on nothing more 

than aerial photographs available in the 

public domain. 

Response: EPA disagrees with the 

commenter. First, as discussed 

elsewhere in responses, we are no 

longer relying on the IPM cost 

algorithms, including the application of 

retrofit factors, to estimate capital costs 

for the Laramie River Station units. 

Instead, we have evaluated the cost 

information provided by Basin Electric 

in comments and incorporated it as 

appropriate. Therefore, the arguments 

made by the commenter related to our 

use of the IPM algorithm are no longer 

relevant. Nonetheless, below we discuss 

how our use of the IPM algorithm in the 

proposed rule was based on reason and 

evidence and addressed the site-specific 

concerns raised by the commenter. 

As noted in responses to other 

comments, EPA adequately addressed 

site-specific issues in using the IPM SCR 

cost model. The SCR cost model for 

IPM, being developed from actual SCR 

retrofit data, incorporate all of the costs 

that would normally be associated with 

an SCR retrofit. As such, retrofit issues 

that are common to all SCR retrofits are 

incorporated into the cost. To the extent 

that there are additional costs, as 

described in other comments, these can 

be addressed with the retrofit difficulty 

factor. 

Basin Electric did not follow the 

BART guidelines in developing their 

cost analyses, and importantly, did not 

provide adequate documentation when 

they deviated from it. There are only 

very limited situations under which an 

analyst can depart from the CCM 

methodology under the BART 

Guidelines: ‘‘The basis for equipment 

cost estimates also should be 

documented, either with data supplied 

by an equipment vendor (i.e., budget 

estimates or bids) or by a referenced 

source (such as the OAQPS CCM, Fifth 

Edition, February 1996, EPA 453/B–96– 

001). In order to maintain and improve 

consistency, cost estimates should be 

based on the OAQPS CCM, where 

possible. The CCM addresses most 

control technologies in sufficient detail 

for a BART analysis. The cost analysis 

should also take into account any sitespecific design or other conditions 

identified above that affect the cost.’’ 70 

FR 39166. 

This section of the BART Guidelines 

makes it clear that the CCM is the 

intended methodology for conducting a 

BART cost determination. It also states 

why: To maintain and improve 

consistency. However, the CCM does 

state that site-specific conditions should 

be incorporated. Site-specific conditions 

could include space constraints, or a 

design feature that could complicate 

installing a control. Importantly, a 

footnote at the bottom of the same page 

of the BART Guidelines makes it clear 

that the analyses should document any 

deviations from the CCM: ‘‘You should 

include documentation for any 

additional information you used for the 

cost calculations, including any 

information supplied by vendors that 

affects your assumptions regarding 

purchased equipment costs, equipment 

life, replacement of major components, 

and any other element of the calculation 

that differs from the CCM.’’ 

The record does not point to any 

‘‘unusual circumstance’’ that explains 

why Basin Electric’s SCR costs are 

higher than costs of SCRs at other 

similar facilities, other than the use of 

a different cost methodology. In fact, 

there is nothing in the record to support 

claims that the cost of SCR was in fact 

based on detailed site-specific vendor 

bids, or is in any manner more sitespecific than the costs relied upon by 

EPA in our proposed rule. As an 

example, the BART application 

submitted by Basin Electric, and relied 

upon by Wyoming, shows that only the 

cost of catalyst is based on a vendor 

quote.175 There is no documentation to 

substantiate that the remaining costs are 

based on vendor quotes or any other 

site-specific data. The mere fact that the 

cost analysis was submitted by Basin 

Electric is not a basis to conclude that 

it is somehow highly site-specific. 

Indeed, even the updated cost 

information recently submitted by Basin 

Electric during the comment period is 

conceptual in nature and not based on 

vendor quotes. As stated on page 21 of 

Exhibit 14 to their comments: ‘‘The LRS 

cost estimates are conceptual in nature; 

thus, S&L did not procure equipment 

quotes specifically for the LRS control 

systems. Rather, equipment costs for the 

LRS projects are based on conceptual 

designs developed for the control 

systems, preliminary equipment sizing 

developed for the major pieces of 

equipment, and recent pricing for 

similar equipment.’’ 

Commenter correctly notes that EPA 

did not account for elevation. EPA 

acknowledges that it did not account for 

elevation in the estimate when using the 

IPM algorithm and EPA’s revised 

estimate does account for elevation. 

Commenter states that the regional labor 

productivity was not factored into EPA’s 

estimate. EPA’s estimate did provide an 

allowance for overtime which is a line 

item in the estimate labeled ‘‘Labor 

Adjustment.’’ However, commenter did 

not provide sufficient information to 

evaluate commenter’s estimate and how 

productivity factors were developed or 

applied in their estimate to produce 

their estimate. Labor costs comprise 

roughly half of the total cost of Basin 

Electric’s estimate of what SCR would 

cost to install at Laramie River Station, 

and the significance of this cost makes 

the lack of information very important. 

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5148 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

176Review of Estimated Compliance Costs for 

Wyoming Electric Generating (EGUs)—Revision of 

Previous Memo, memo from Jim Staudt, Andover 

Technology Partners, to Doug Grano, EC/R, Inc., 

February 7, 2013, Figures 6a and 6b. 

177Sargent & Lundy, ‘‘IPM Model—Revisions to 

Cost and Performance for APC Technologies—SCR 

Cost Development Methodology, FINAL’’, August 

2010. 

Moreover, if this is an important 

element of commenter’s critique of 

EPA’s method, they should have 

provided sufficient data and supporting 

justifications for EPA to evaluate 

commenter’s estimate. Notably, this is 

an important deviation from the CCM 

and more detailed supporting data 

should have been provided. As noted in 

EPA’s responses to other comments, the 

commenter has not provided any data to 

explain the high labor charge rates or 

claimed low productivity, as required 

under the BART Guidelines. 

Commenter claims that ‘‘a Google 

EarthTM photograph cannot identify: (1) 

The site constraints posed by the 

location of the coal conveyor rooms’’. 

On the contrary, the coal conveyors are 

prominent features in the images 176 and 

it is clear from the coal conveyors where 

the coal conveyor rooms are located. 

This location for coal conveyor rooms is 

not unusual. In general, coal conveyor 

rooms are located either to one side of 

the boiler or the other, depending upon 

the location of the coal pile to the boiler. 

Moreover, the resulting need to route 

ductwork through the boiler building 

wall is commonly performed in SCR 

retrofits. As such, this is not an unusual 

issue and should not significantly 

impact retrofit cost versus a typical 

retrofit. 

Commenter claims that EPA did not 

account for ‘‘(2) the location of the 

existing FD fan buildings and the space 

constraints between the existing FD fan 

buildings and the existing electrostatic 

precipitators . . .’’ It is clear from the 

images that there is a building located 

immediately below where the SCR 

reactor would be located, and this is not 

an unusual situation. The location of the 

ESP is also very clearly shown on the 

images. The space between the ESP and 

the fan rooms is also visible from the 

photo in Figure 6a of the Andover 

memo. Nevertheless, having to install 

SCR support structure in close 

proximity to existing buildings or 

equipment, as may be necessary at 

Laramie River, is not unusual because 

SCRs are commonly erected in that 

location and buildings or other 

equipment are normally in the area 

below. It is also possible that SCR 

support structure could be built to 

largely avoid the forced draft fan 

buildings by extending beyond them 

with a common support structure for all 

three, or at least more than one, SCR 

reactor. The space between the ESP and 

the fan buildings is only significant with 

regard to location of a crane for erection 

of Unit 2, and this is why a higher 

retrofit difficulty is assumed for Unit 2. 

Middle unit crane access issues are not 

unusual either and have been addressed 

numerous ways, including assembling a 

temporary crane above the boiler 

building, as was performed at the 

Brayton Point plant for their Unit 3. 

Commenter claims that EPA did not 

adequately account for ‘‘(3) the 

necessary information to determine duct 

work routing and SCR tie-ins to the 

existing economizers and air heaters 

. . .’’ EPA disagrees with the 

commenter. The general routing can be 

estimated from the images, and there 

was nothing in the images to suggest 

any problems with routing ductwork. It 

was apparent that a penetration was 

necessary in the boiler building, which 

is routinely necessary because boilers 

are typically housed in boiler buildings 

and the SCRs are not, making 

penetration of a boiler building wall 

necessary in any SCR retrofits where the 

boiler is in a boiler building. This is the 

case with most SCR retrofits. In fact, 

Figures 2 and 3 of Exhibit 16 to Basin 

Electric’s comments demonstrate that 

the ductwork tie in to the boiler and 

associated modifications are similar to 

what is done routinely and ductwork 

length is reasonable. For an SCR cost 

estimate, the most critical cost issues 

that require closer examination than 

possible with a satellite photo is if it is 

necessary to move major pieces of 

equipment, such as an air preheater, in 

order to accommodate the ductwork. 

Had it been determined that relocating 

the air preheater was necessary, this 

would entail some significant additional 

cost over what would be considered a 

‘‘typical’’ retrofit. Basin Electric did not 

indicate any such need and therefore 

their costs for ductwork are expected to 

be within the normal cost for a retrofit. 

Commenter claims that EPA did not 

properly account for ‘‘(4) information 

regarding plant subsystems such as the 

FD fan capacity, equipment 

reinforcement, auxiliary power systems, 

electrical plant system capacity, and 

other plant subsystems that would be 

affected by installation and operation of 

the SCR systems. Sargent & Lundy 

Critique section 5.1.1.2.–5.1.1.3.’’ The 

IPM algorithm explicitly assumes that it 

will be necessary to replace the forced 

draft (FD) fan 177 and make 

modifications to auxiliary electrical 

systems and associated boiler structure 

and has a line item cost for this. As such 

this was addressed in the cost. 

Commenter claims that ‘‘Further, the 

aerial photograph provides no 

information about where the ammonia 

handling system could be located, and 

necessary pipe routing and other 

support systems for the ammonia 

handling system. Nor does it show the 

need to penetrate the 20-story boiler 

wall and provide related structural 

support to install duct work, to provide 

structural support columns for the SCR 

reactors in very tight spaces, and the 

need for special cranes to lift heavy 

equipment into place in a congested 

space.’’ EPA disagrees. It is apparent 

from the image, and the open spaces on 

the images that have no structures, that 

there are any of a number of places at 

the Laramie River site that the ammonia 

storage system could be located. 

Selecting the ideal location does require 

closer examination of the site than 

possible with an aerial photograph. 

However, the impact on total capital 

cost is relatively small. With regard to 

modifications to the boiler building, this 

has already been discussed along with 

the installation of structural support 

columns for the SCR and need for 

cranes. These modifications are 

routinely necessary for SCR retrofits and 

would be factored into the historical 

SCR projects that the IPM algorithms are 

based upon. 

Expansion of the controls is another 

cost identified by commenters as not 

adequately addressed by EPA. EPA 

disagrees with commenter. Every SCR 

retrofit requires expansion of controls. 

So, this is incorporated into the IPM 

model. There may be specific issues that 

may be associated with tailoring the 

controls to the existing site that make 

this portion of the cost slightly more or 

slightly less expensive than normal. But, 

controls are generally a small 

contributor to total SCR cost and these 

differences would have a minor effect. 

Comment: When all of the sitespecific and balance of plant conditions 

are included, Sargent & Lundy 

estimated that the capital cost of 

installing SCR at Laramie River Station 

is $746,906,000. This is twice as much 

as Andover’s flawed cost estimate of 

$330,000,000. The discrepancy in the 

cost estimates is not surprising in light 

of Andover’s failure to comply with the 

BART Guidelines and to follow the 

CCM where appropriate. For example, 

the site congestion and balance-of-plant 

upgrades alone total approximately 

$290 million—costs which accurately 

reflect site-specific constraints to 

installing SCR, but which were not 

accounted for in the Andover Report. 

While the costs estimated in the Sargent 

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Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 5149 

178Exhibit 14, page 25. 

179Construction Labor Research Council Union 

Wages and Supplements, available from the 

National Construction Boilermaker Employers Web 

site, www.nacbe.com. 

180Bureau of Labor Statistics, 47–2031 

Carpenters, www.bls.gov/oes/current/

oes472031.htm. 

181Appendices to Exhibit 14 of Basin Electric 

comments, page 4 of SCR estimate. 

182Exhibit 14, page 25. 

183http://nacbe.com/manhour-reports/. Also see: 

Staudt, J.E., ‘‘Engineering and Economic Factors 

Affecting the Installation of Control Technologies— 

An update’’, Developed for U.S. EPA Clean Air 

Markets Division, December 15, 2011, figure 2–2 on 

page 12. 

& Lundy Evaluation are significantly 

greater than those set forth in the 

Andover Report, they are a far more 

accurate and representative assessment 

of the costs of installing SCR and SNCR 

at Laramie River Station. 

Response: EPA disagrees with the 

commenter, having found the following 

discrepancies in the commenter’s 

estimates for cost of SCR and SNCR at 

Laramie River Station: 

1. Apparently Double-Counts General 

Facilities 

The itemized cost estimate in the 

Appendices to Exhibit 14 includes items 

that are normally incorporated into the 

General Facilities cost, while Sargent & 

Lundy took an additional provision for 

General Facilities (Exhibit 14 at page 

31). General Facilities are costs that are 

not directly associated with the process 

equipment, and include such things as 

access roads, access platforms, safety 

equipment (such as eye-wash stations), 

etc. On the other hand, ductwork, 

piping, structural steel to support 

process equipment are direct capital 

cost and do not fall into the category of 

General Facilities. The itemized cost 

estimate by Sargent & Lundy in the 

Appendices to Exhibit 14, however, 

includes the cost of many items that 

would normally fall under the category 

of General Facilities. This includes the 

cost of roads and a parking area 

($930,226 at page 2 of SCR estimate), 

eye wash stations (page 3), a preengineered building for the construction 

warehouse ($780,000 page 8), fire 

protection systems (page 16), gratings, 

handrails, ladders (page 22). As a result, 

Sargent & Lundy double counts for 

General Facilities by having these costs 

accounted for in the itemized direct 

capital cost as well as in its Indirect 

Capital costs. 

2. Labor Rates in Sargent & Lundy’s 

Itemized Capital Cost in the Appendices 

to Exhibit 14 Appear To Already Have 

a Significant Contingency Built in and 

Additional Costs for Overtime and Per 

Diem—Already Incorporating 

Contingency in Apparent DoubleCounting of Contingency 

According to Basin Electric’s 

comments, their labor rates were taken 

from the publication RS Means.178

However, examples of how the labor 

rates from RS Means were used to 

develop what was ultimately used in 

their estimate were not provided. RS 

Means is a subscription service that can 

cost up to $1,100, depending upon the 

package. 

However, there are publicly available 

labor rates for the major construction 

trades from the CLRC that are available 

for download at the National 

Association of Construction Boilermaker 

Employers’ Web site.179 The Laramie 

River Station estimate assumes 

boilermaker labor tasks with a labor rate 

of $90.79/hr while according to the 

CLRC boilermaker rates in the Mountain 

and Northwest Plains as of July 2013 

were $56.79/hour, which is close to the 

values for Lodge 101 of the boilermakers 

union, ranging from $57.62 for a 

Journeyman to $60.12 for a Foreman, 

and lower rates for apprentices. 

The Laramie River estimate assumes 

pipefitter labor tasks with a labor rate of 

$81.72/hour, while according to the 

CLRC pipefitter rates in the Mountain 

and Northwest Plains as of July 2013 

were $43.57/hour. Plumber rates are 

only slightly higher are $47.47/hour. In 

fact, there are several areas where the 

Laramie River itemized estimated rates 

in the Appendices far exceed MountainNorthern Plains reported rates for union 

craft labor for July 2013. The ratio of 

assumed rate versus reported is as high 

as 187%. It is only for the installation 

of an architectural door that the 

reported rate for carpenters is even close 

to the assumed rate for Laramie River 

Station. Carpenters also build concrete 

forms.180 For carpenters doing concrete 

forms, the paid rate ($65.02—see page 2 

of estimate) is more than double the 

union rate. For most of these crafts, 

these rates cannot be explained by per 

diem. For example, if all of the 

boilermakers lived 120 miles from the 

location and were eligible for $70/day 

per diem and also drove 120 miles each 

way every day of an eight-hour shift 

receiving $0.565/mile, that would only 

increase the hourly rate by $25.70, 

which does not explain the $34+ 

difference. 

It may be that Sargent & Lundy 

applied an escalation to the labor 

charges for future expected rates. If so, 

this is inconsistent with the CCM, 

which does not allow for this. In light 

of the fact that labor comprises the 

single largest expense and is nearly half 

of the total direct cost of the project— 

per Basin Electric’s estimate in the 

Appendices to Exhibit 14—the high 

labor rates assumed by Sargent & Lundy 

are critical cost items that require much 

more complete explanation than was 

provided. 

3. Additional Labor Costs 

In addition to the high labor rates 

incorporated into Sargent & Lundy’s 

itemized estimate, roughly $47 million 

in additional labor costs are included 

for five ten-hour days and six ten-hour 

days and per diem.181 This schedule 

(which results in overtime) is stated to 

be necessary to attract necessary 

labor.182 No further explanation is 

provided for these costs. It is unclear 

why it is necessary to offer these in light 

of the fact that power plant construction 

labor demand is well off of its peak and 

is especially low in the Western States. 

As a key power plant construction trade, 

boilermaker man-hours are a good 

indication of general power plant 

construction activity. Boilermaker manhours demonstrate that labor demand is 

well off of past peaks, and for the first 

two quarters of 2013, boilermaker 

employment in the Western States is 

18.6% below 2012 levels for the same 

period. Boilermaker man-hours in 2012 

nationally totaled 27 million, well off 

the years of 2006 through 2009 that 

were all above 30 million, and peaked 

in 2008 at over 40 million. 2012 levels 

were still below 2010’s rate of 28 

million.183

It is also unclear why such high 

expenses are needed for overtime and 

per diem, particularly in light of the 

high assumed wage rates discussed 

earlier. Moreover, the need for overtime 

needs to be incorporated into a 

discussion of schedule, which was not 

provided. The time available for 

installing the SCRs may allow for 

spreading of activities over longer 

periods of time than in past retrofit 

efforts that may have allowed less time 

than the RHR, which allows for five 

years. However, there is no discussion 

of the need for overtime in the context 

of schedule. 

4. Quantity and Cost of Materials and 

Impact on Labor Hours 

Throughout the spreadsheets 

provided as Attachments to Exhibit 14 

to Basin Electric’s comments, no 

information was provided on how the 

quantities of materials were estimated, 

such as tons of steel for ductwork, etc. 

This makes it impossible to evaluate if 

Sargent & Lundy estimated the correct 

quantities of materials, associated 

material costs, or the associated hours 

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5150 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

184U.S. Department of Energy, National Energy 

Technology Laboratory, ‘‘Cost Estimating 

Methodology for NETL Assessments of Power Plant 

Performance’’, DOE/NETL–2011/1455, April 2011, 

pg 4. 

185From data in Cichanowicz, J., Muzio, L., Hein, 

M., ‘‘The First 100 GW of SCR in the U.S.,—What 

Have We Learned?’’—2006 Mega Symposium. 

186Sargent & Lundy, ‘‘IPM Model—Revisions to 

Cost and Performance for APC Technologies—SCR 

Cost Development Methodology, FINAL’’, August 

2010, page 5. 

187http://www.westernfuels.org/member-services/

mining-operations 

188BNSF Mine Guide, at www.bnsf.com/

customers/pdf/mineguide.pdf. SO2 calculated by 

multiplying sulfur content (expressed as a decimal) 

times 2 million and dividing by the heating value 

in Btu/lb. 

189Exhibit 14, page 17. 

190Exhibit 14, page 25. 

191Oklahoma Gas & Electric, ‘‘Sooner Units 1 & 

2, Muskogee Units 4 & 5 Dry FGD BART Analysis 

Follow-Up Report’’, December 28, 2009, see pdf 

pages 28 and 43. 

192Attachments to Exhibit 14 to Basin Electric 

Comments, page 4 of SCR estimate. 

associated with erecting the materials. 

The spreadsheet was provided as a pdf 

document, and therefore any underlying 

equations could not be examined. As 

noted in our comments to other 

questions, it is necessary to include 

documentation for any additional 

information used for the cost 

calculations that differs from the CCM. 

Since the quantities of materials also 

relate to the labor needed to install the 

materials, this also impacts the labor 

costs estimated by Sargent & Lundy. 

5. AFUDC 

Sargent and Lundy includes AFUDC 

in its SCR cost. This cost of about $22– 

$23 million cost per unit, for a total of 

$68 million, is not permissible under 

the CCM as discussed in response to 

other comments. 

6. Process Contingency 

Although the CCM shows an 

allowable process contingency of 5% for 

SCR, in EPA’s opinion, this is not 

necessary today for SCR on coal-fired 

boilers firing the coals used in 

Wyoming. According to the Department 

of Energy’s NETL: 184 ‘‘Process 

contingency is intended to compensate 

for uncertainty in cost estimates caused 

by performance uncertainties associated 

with the development status of a 

technology. Process contingencies are 

applied to each plant section based on 

its current technology status.’’ 

According to this document, for 

commercially available technologies 

process contingency could range from 

0–10%. When the CCM was issued in 

January 2002, SCR was commercially 

available but was only emerging in 

application on coal-fired utility boilers 

in the U.S. According to a study by 

Cichanowicz,185 at the end of 2001, 

there was only about 13,000 MW of coal 

SCR capacity in the U.S., with nearly all 

installed in the prior two years, meaning 

that there was very limited long-term 

experience with SCR on U.S. coals. SCR 

usage on coal-fired boilers has since 

increased about ten times to about 

130,000 MW of coal capacity (over 40% 

of all coal capacity) and is therefore a 

very well proven and well understood 

technology on a wide range of U.S. 

coals. As a result, the process 

contingency for SCR on coal-fired utility 

boilers should be much lower today 

than what it was when the CCM was 

issued in January 2002—5%. EPA 

believes that for SCR applications on 

utility boilers burning Powder River 

Basin coals, which are very well 

understood SCR applications, there 

should not be a need for process 

contingency. 

7. Sulfur Trioxide (SO3) Mitigation 

Measures Are Not Needed 

Sargent & Lundy assumed that a SO3

mitigation system is necessary for the 

Laramie River SCR. We disagree as this 

adds unnecessary capital and operating 

cost. An SO3 mitigation system is 

unnecessary because of the relatively 

low sulfur content of the coal and the 

fact that the coal fly ash is high in free 

calcium oxide. The available free lime 

will neutralize the SO3 making SO3

mitigation unnecessary. In fact, in the 

model they developed for the IPM, 

Sargent & Lundy assumed that SO3

mitigation was unnecessary for boilers 

using coals with SO2 levels below 3 lb/ 

MMBtu, making it unnecessary for 

Laramie River, which fires a much 

lower sulfur coal from the Dry Fork 

Mine, with an uncontrolled SO2 rate of 

roughly 0.50 to 1.0 lb/MMBtu.186 187 188

In fact, Sargent & Lundy uses the same 

rationale for arguing (correctly) that air 

preheater modifications are not 

necessary to address potential 

ammonium bisulfate formation from an 

SNCR system.189 Moreover, even if SO3

formation were a legitimate concern, 

low oxidation SCR catalysts are 

available and any additional cost impact 

would be very small. SO3 mitigation is 

not a large capital cost compared to the 

other costs that contribute to the SCR, 

but it is illustrative of the manner in 

which Sargent & Lundy has taken efforts 

to overdesign the system while adding 

unnecessary costs. 

8. Labor Productivity Factor Apparently 

Not Site-Specific 

Basin Electric has commented that 

local labor productivity is a major factor 

that impacts cost. However, it appears 

that the labor productivity factor being 

selected at the site may have been 

broadly applied by Sargent & Lundy at 

multiple sites in an inconsistent 

manner. According to Basin Electric, 

‘‘Labor productivity accounts for things 

such as labor availability, site access 

and working conditions, climate, season 

changes, and project size and 

complexity’’ and it is a common 

practice on large construction projects 

to apply a productivity factor to account 

for local worker productivity and 

construction site conditions. A labor 

productivity factor of 1.15 was selected 

to account for labor productivity in the 

southeastern Wyoming region as 

compared to the benchmark of 1.00 for 

Texas, cited in Basin Electric’s 

comments. Although the comments 

refer to the Compass International 

Global Construction Cost and Reference 

Yearbook, the value in that document 

for the southeastern Wyoming region is 

not expressly stated, and it is unclear if 

1.15 is, in fact, the value in that 

document as we were not able to 

confirm the number in the document 

referenced.190

In another Sargent & Lundy BART 

analysis, performed for Oklahoma Gas & 

Electric Sooner Units 1 & 2 and 

Muskogee Units 4 & 5, Sargent & Lundy 

also used a Labor Productivity factor of 

1.15.191 Since the Oklahoma Gas & 

Electric units are in a climate far more 

similar to Texas (only about 150 miles 

from Texas) than Wyoming, and the 

Oklahoma plant likely draws from 

similar construction labor pools as 

Texas, it seems that they should have a 

similar productivity factor as Texas. It is 

also unusual that Sargent & Lundy 

would select the exact same 

productivity factor for the Oklahoma 

BART analysis as Laramie River 

Station’s BART analysis, although these 

facilities are roughly six hundred to 

seven hundred miles away, with very 

different climates and draw on different 

labor pools. In this case, it appears that 

Sargent & Lundy has used the same 

productivity factor for Laramie River 

Station as for other BART analyses. In 

summary, there is no evidence that the 

labor productivity factors suggested by 

the commenter are site-specific. 

9. Contractor’s Fees and Profit Are 

Excessive 

Commenter’s estimate for contractor’s 

fees Expense and Profit total nearly $51 

million, or 14% of the estimated total 

Labor, Material, Subcontract, and 

Process Equipment.192 By contrast, 

Sargent & Lundy estimated for the IPM 

algorithm total contractor fees and 

profits of 10% of the estimated Labor, 

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Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 5151 

193Attachments to Exhibit 14 to Basin Electric 

Comments, page 4 of SCR estimate and Exhibit 14 

page 31. 

194AACE Recommended Practice, AACE 16R–90; 

www.aacei.org/non/rps/18R-90.pdf. 

195U.S. Department of Energy, National Energy 

Technology Laboratory, ‘‘Cost Estimating 

Methodology for NETL Assessments of Power Plant 

Performance’’, DOE/NETL–2011/1455, April 2011, 

pg 5. 

196AACE Recommended Practice, AACE 16R–87; 

www.aacei.org/non/rps/18R-97.pdf. 

Material, Subcontract, and Process 

Equipment cost. When this higher 

percentage is combined with a high 

direct cost, the contractor’s fees become 

excessive. The high contractor fees and 

profits assumed in the Laramie River 

Station estimate also seem inconsistent 

with a weak power plant construction 

market, as demonstrated by the 

boilermaker man-hour data discussed 

earlier. 

10. Labor, Material, Subcontract, and 

Process Equipment Costs in Excess of 

Historical Norms, With Substantial 

Additional and Unnecessary Costs 

Added 

It is not unusual for owners to report 

excessive costs because owners are most 

interested in a cost estimate that has a 

very low risk of an overrun rather than 

a ±30% cost estimate, which has a 

higher risk of overrun (about 50%), but 

is likely to be a better estimate of actual 

project cost. Commenter’s estimate for 

total Labor, Material, Subcontract, and 

Process Equipment is $361 million. 

Adding Sargent & Lundy’s estimated 

cost of scaffolding, freight, and 

consumables that is in the Appendices 

to Basin Electric’s Exhibit 14 to their 

estimated Labor and Material, 

Subcontract, and Process Equipment 

raises the cost to $383 million (Sargent 

& Lundy provides no supporting 

documentation for this $22 million in 

additional cost). This is 27% above the 

expected cost of $301 million (with 

elevation accounted for) developed from 

the IPM SCR model, which is developed 

from actual project data. This suggests 

that Sargent & Lundy made a fairly 

conservative estimate of these costs for 

Basin Electric. But, in addition to the 

cost of Labor, Material, Subcontract, and 

Process Equipment, scaffolding, 

consumables and freight, in their 

estimate for Basin Electric, Sargent & 

Lundy added very high costs for 

overtime, per diem (that were not 

explained as required) and high costs 

for contractor’s fees and profits, and 

then added additional project and 

process contingencies, unnecessary 

costs such as SO3 mitigation and unallowed costs such as AFUDC that 

increased total project cost to nearly 

$750 million—about double what they 

had estimated in 2008.193 The combined 

effect of the conservative cost estimates 

with additional contingencies or 

unnecessary cost adders, results in what 

appears to be an unrealistically high 

cost. 

11. Project Contingency of 15% Is Too 

High in Light of the Method Used and 

Very Conservative Underlying 

Assumptions 

Because the cost estimates developed 

for Basin Electric are already very 

conservative, and based upon detailed 

estimates of the labor and materials to 

build the SCR, a 15% project 

contingency is excessive. According to 

the CCM, Section 1.1 Chapter 1, page 1– 

4: ‘‘The accuracy of the information in 

the Manual works at two distinct levels. 

From a regulatory standpoint, the 

Manual estimating procedure rests on 

the notion of the ‘‘study’’ (or rough 

order of magnitude—ROM) estimate, 

nominally accurate to within ± 30%. 

This type of estimate is well suited to 

estimating control system costs 

intended for use in regulatory 

development because they do not 

require detailed site-specific 

information necessary for industry level 

analyses.’’ 

The methods and cost elements of the 

CCM were adapted from the American 

Association of Cost Engineers (AACE) 

(CCM Section 1, Chapter 2, p 2–5). 

AACE 16R–90 194 states that, ‘‘Project 

Contingency is included to cover the 

costs that would result if a detailed-type 

costing was followed as in a definitivetype study.’’ According to NETL,195

‘‘AACE 16R–90 states that project 

contingency for a ‘‘budget-type’’ 

estimate (AACE Class 4 or 5) should be 

15% to 30% of the sum of BEC, EPC fees 

and process contingency.’’ AACE 18R– 

97 196 defines different classes of 

estimates, from 5 (least detailed) to 1 

(most detailed). The methodology used 

in the CCM falls into a Class 4 or Class 

5, while the methodology used by Basin 

Electric in their comments, with 

hundreds of line items and thousands of 

input parameters, is clearly a far more 

detailed estimate that does not leave out 

any aspect of the project. 

The 15% project contingency factor in 

the CCM for SCR shown in Table 2.5 on 

page 2–44 of Section 4.2 Chapter 2 is 

based upon use of the cost estimating 

method described in the CCM to 

develop the Total Direct Capital Costs. 

It is not intended to apply to a detailed 

estimate that: (1) Includes many cost 

items not explicitly included in the 

estimating method described in the 

CCM to develop the Total Direct Capital 

Costs and meant to be included in the 

15% project contingency, and (2) 

Already has substantial contingency 

built into it through conservative 

assumptions. 

In fact, the CCM discusses the 

importance of not double-counting 

contingency in multiple places such as 

retrofit factor and contingency at page 

2–30 of Chapter 2—Cost Estimation: 

Concepts and Methodology: ‘‘Due to the 

uncertain nature of many estimates, 

analysts may want to add an additional 

contingency (i.e., uncertainty) factor to 

their estimate. However, the retrofit 

factor is a kind of contingency factor 

and the cost analyst must be careful to 

not impose a double penalty on the 

system for the same unforeseen 

conditions. Retrofit factors should be 

reserved for those items directly related 

to the demolition, fabrication, and 

installation of the control system. A 

contingency factor should be reserved 

(and applied to) only those items that 

could incur a reasonable but 

unanticipated increase but are not 

directly related to the demolition, 

fabrication, and installation of the 

system. For example, a hundred year 

flood may postpone delivery of 

materials, but their arrival at the job site 

is not a problem unique to a retrofit 

situation.’’ (emphasis added). The CCM, 

therefore, explicitly anticipates that 

some analysts may, incorrectly, apply 

multiple contingencies for the same 

areas of uncertainty even when using 

the methods described in the CCM for 

estimating Total Direct Capital Costs. 

Because the cost estimates developed 

for Basin Electric are already very 

conservative and based upon detailed 

estimates of the labor and materials to 

build the SCR, rather than study-level 

estimates, they have double-counted 

both the costs that are intended by the 

CCM to be included in the project 

contingency when using the CCM 

method, plus they have added 

additional contingency in the form of 

conservative assumptions to address 

uncertainties in their estimate. For this 

reason a 15% project contingency is 

excessive for their estimate. 

12. The Cost Information in Exhibit 14 

Does Not Appear To Be Consistent With 

the Cost Information in the Appendices 

to Exhibit 14 

The table on page 4 of the SCR cost 

estimate for Units 1–3 shows a total cost 

of $481 million. This is inconsistent 

with the Total Direct Capital Costs 

shown on page 31 of Exhibit 14, which 

total $465 million. It is unclear what the 

cause of the $16 million difference is. In 

either case, EPA believes that the cost is 

not adequately explained. 

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5152 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

197Exhibit 14, page 17. 

198Appendices to Exhibit 14 of Basin Electric 

comments, page 4 of SNCR estimate. 

199Andover Technology Partners, ‘‘Cost of NOX

Controls on Wyoming EGUs’’, October 28, 2013; 

Wyoming EGU BART and Reasonable Progress 

Costs—10/28/2013. 

200Sargent & Lundy, ‘‘IPM Model—Revisions to 

Cost and Performance for APC Technologies SCR 

Cost Development Methodology FINAL’’, August 

2010, Project 12301–007, Perrin Quarles Associates, 

Inc. p 1. 

13. Laramie River Station Does Not 

Require an SNCR System With Four 

Injection Zones 

The Laramie River Station is a base 

loaded unit, with capacity factors well 

above 80%. This means that the boiler 

rarely operates at part load. Sargent & 

Lundy designed the SNCR system with 

four injection zones to accommodate the 

‘‘entire load and temperature range 

within the boiler’’.197 Because the unit 

will rarely operate at part load and the 

emission rate is a 30-day average, there 

is likely no need for four injection 

levels. Four injection levels are only 

required on load-following units that 

spend a significant amount of time at 

low or middle loads or units that must 

comply with emission limits of much 

shorter averaging times, such as 24 hour 

averages or less. In practice, this system 

would be designed with two, or, at 

most, three injection zones. The 

additional injection zone adds cost in 

the form of additional injectors and 

furnace penetrations, and associated 

labor. On the other hand, EPA has 

accepted Basin Electric’s estimate of the 

cost of the SNCR system. Although we 

believe that there would likely be fewer 

injection levels, based upon the furnace 

exit temperature reported by the 

company, we expect that at least one of 

the injection levels will require a 

convective zone injection system using 

multi-nozzle lances, which will increase 

the cost. Therefore, these effects offset 

one another and we are accepting the 

cost provided by Basin Electric. 

14. Similar Labor Rate Issues for SNCR 

as for SCR Estimate 

Examination of the labor rates for the 

Sargent & Lundy cost estimate revealed 

that Sargent & Lundy assumed the same 

high labor rates for crafts as they did for 

SCR without the rates explained 

sufficiently. They also assumed an 

additional $2.7 million in additional 

overtime and per diem rates that are not 

explained.198

For these reasons, the Sargent & 

Lundy capital cost estimates for SCR 

and SNCR are deficient, for the reasons 

as described above. However, because 

EPA expects that the SNCR injection 

system necessary for Laramie River 

Station may require more costly 

multiple-nozzle lances in at least one 

injection zone, this should offset the 

cost impact of the deficiencies we have 

identified, and we are accepting the 

capital cost of the SNCR system 

provided by Basin Electric equal to 

$16.9 million per unit. 

For the SCR capital cost at Laramie 

River, EPA is accepting some costs and 

not others, as described in more detail 

in supporting information with these 

comments.199

Comment: We are very concerned to 

see that EPA has introduced a retrofit 

factor greater than ‘‘1’’ (the default) for 

13 of the 15 EGUs evaluated. The IPM 

model used by EPA to estimate control 

costs in Wyoming already includes 

retrofit costs in its costing algorithms. It 

is generally accepted that retrofit 

projects will incur costs over and above 

those for a ‘‘greenfield’’ site, and most 

of those retrofit costs are already 

included in the database used to 

generate the IPM algorithms. So, unless 

a particular situation is so extreme as to 

warrant an additional retrofit factor, 

applying a retrofit factor to an algorithm 

that already includes retrofit costs is 

double counting those costs. Not only is 

the application of a retrofit factor not 

mentioned in the Federal Register 

Notice, its only supporting 

documentation appears in docket item 

EPA–R08–OAR–2012–0026–0086[1], 

‘‘Review of Estimated Compliance Costs 

for Wyoming Electricity Generating 

Units (EGUs)—revision of previous 

memo’’: ‘‘Selective Catalytic NOX

Reduction (SCR) capital cost is 

estimated using the IPM algorithms with 

retrofit factors adjusted on a unit by unit 

basis.’’ The retrofit factor is a subjective 

factor used to account for the estimated 

difficulty of the retrofit that is unique to 

the facility. Because site visits were not 

possible, the retrofit factor was 

estimated from satellite images that 

provide some insight to the 

configuration of the units and degree of 

congestion around the site and in the 

vicinity of where the SCR would be 

installed. These factors impact the 

ability to locate large cranes on the 

site—that impact how the SCR is 

assembled (are large sections lifted into 

place or is the SCR ‘‘stick built’’), how 

much ductwork is needed, if the SCR 

must be built onto a large, elevated steel 

structure or can be built near the 

ground, and if other equipment must be 

relocated to accommodate the space of 

the SCR. When using the IPM capital 

cost model, retrofit difficulties 

associated with an SCR may result in 

capital cost increases of 30 to 50% over 

the base model.200

A proper estimation of retrofit factors 

involves more than an inspection of 

satellite images. For example, EPA 

Region 8 visited the four-unit Colstrip 

power plant in Montana before 

concluding that a retrofit factor of ‘‘1’’ 

was appropriate. Once such a site visit 

is conducted, retrofit factors should be 

developed for each element of the cost 

analysis—not the ‘‘blanket’’ approach 

used by EPA here. 

Another example is provided by 

Sargent & Lundy’s ‘‘Constructability 

Review’’ for addition of SCR at Navajo 

Generating Station. Navajo Generating 

Station consists of three EGUs, with the 

middle unit constrained by a coal 

conveyor passing through. Even so, 

Sargent & Lundy estimated that 

construction effort would be only 25% 

greater for Unit 2 than for the other two 

units. EPA needs to clarify why they 

chose to add a retrofit factor greater than 

1 (average retrofit factor of 1.33 for 13 

of 15 units reviewed) to the costs when 

retrofit costs are already contained 

within data used to generate the IPM 

and when neither Wyoming, Basin 

Electric, or PacifiCorp included a 

comparable retrofit factor. By adding the 

retrofit factor, EPA has overestimated 

the costs of SCR: in the case of Dave 

Johnston Units 1, 2, and 4 and Wyodak 

Unit 1, this has led EPA to propose lessefficient controls than SCR. 

Chapter 2, ‘‘Cost Estimation: Concepts 

and Methodology’’ of the CCM provides 

a lengthy discussion of retrofit factors. 

The CCM addresses SCR retrofits 

specifically ‘‘A correction factor for a 

new installation versus a retrofit 

installation is included to adjust the 

capital costs’’ (Section 4, NOX Controls, 

Section 4.2, NOX Post- Combustion, 

Chapter 2, SCR). The CCM retrofit factor 

is $728/MMBtu/hr and, for medium-size 

boilers like Dave Johnston Unit 4 or 

Wyodak, this represents a 23%–24% 

increase in the direct capital cost. 

EPA inconsistently and without 

explanation applied ‘‘retrofit factors’’ 

that improperly increase the reported 

capital costs of SCR installation. Such 

retrofit factors are intended to account 

for the increased costs of unusually 

difficult retrofits, i.e., those that present 

more challenges than assumed for the 

‘‘typical’’ SCR retrofit, for which costs 

are described by the IPM SCR cost 

module. The EPA unjustifiably 

determined that only two of the fifteen 

Wyoming EGUs (Laramie River Station 

Units 1 and 3) would be of average 

difficulty, while applying increases of 

between 20 and 50 percent to the 

remaining units. The EPA applied such 

retrofit factors even for units for which 

the source owners did not claim aboveaverage installation challenges. The 

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Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 5153 

201Andover Technology Partners, ‘‘Cost of NOX

Controls on Wyoming EGUs’’, October 28, 2013, p. 

30; Wyoming EGU BART and Reasonable Progress 

Costs—10/28/2013. 

202Andover Technology Partners, ‘‘Cost of NOX

Controls on Wyoming EGUs’’, October 28, 2013, 

p. 35; Wyoming EGU BART and Reasonable 

Progress Costs—10/28/2013. 

EPA’s exclusive evidence of potential 

retrofit challenges—satellite images— 

does not support the EPA’s application 

of retrofit factors. (The commenter 

submitted a TSD that elaborated on 

some of these points.) 

The descriptions given of the EPA’s 

view of the retrofit difficulty at each 

plant based on satellite images make it 

clear that many guesses were made and/ 

or that the EPA erred on the side of high 

retrofit difficulty to be conservative. 

Being conservative in cost estimates 

may be acceptable if such conservatism 

is applied equally to all units and if the 

EPA provides a reasoned basis for its 

assumptions, but the EPA did not do so. 

The EPA assumed that the two units in 

the middle at Jim Bridger ‘‘will be 

somewhat more difficult to achieve 

access for equipment’’ and applied the 

highest retrofit factor of 1.5 to these 

units, while for Laramie River Unit 2, 

the EPA assumed more retrofit difficulty 

due to its location in the middle but 

only applied a retrofit factor of 1.2. The 

EPA essentially made guesses that the 

middle units may have more retrofit 

difficulty, and did not consistently 

apply the same retrofit factors to the 

middle units of these two plants. We 

found it telling that PacifiCorp’s capital 

cost estimates for installation of SCR 

systems at all four Jim Bridger units 

(which are of equal size to each other) 

were identical for each unit, and the 

same is true of Basin Electric’s capital 

cost estimates for installation of SCR 

systems at all three Laramie River units 

(which are also equal in size). Given 

these facts, the EPA has no basis for its 

application of a higher SCR retrofit 

factor for the units in the middle (i.e., 

Jim Bridger Units 2 and 3 and Laramie 

River Unit 2). 

To summarize, the EPA has not 

adequately justified the application of 

any retrofit factor to the costs of SCR at 

any of the EGUs in Wyoming, and the 

EPA should not apply retrofit factors to 

increase the capital costs of SCR 

without adequate justification for those 

retrofit factors. Further, the EPA must 

remember that the IPM cost module for 

SCR is based on actual cost data for SCR 

retrofits, and that virtually all SCR 

retrofits would have some space 

constraints due to most power plants 

being built without ever planning for 

SCR installation. The EPA should only 

apply a retrofit factor if it can justify 

that the cost of SCR installation would 

noticeably deviate from a typical 

installation. 

Response: As noted by commenter, 

the IPM cost model is based upon actual 

retrofits and incorporates all of the costs 

normally associated with retrofit of an 

SCR. This means that many of the 

retrofit issues commenters have raised 

are incorporated into the base cost, 

which can then be adjusted with a 

retrofit difficulty factor based upon the 

perceived difficulty of the retrofit 

relative to typical retrofits. EPA 

disagrees with the commenter in its 

assertion that the EPA inconsistently 

and without explanation applied 

‘‘retrofit factors’’ that improperly 

increase the reported capital costs of 

SCR installation. 

EPA applied retrofit factors while 

carefully considering site conditions. 

Where there was uncertainty, EPA did 

lean toward making more conservative 

estimates, which would explain the 

average retrofit factor exceeding 1.0. 

Section 2.5.3.2 of the CCM discusses 

retrofit cost considerations as ‘‘Probably 

the most subjective part of a cost 

estimate.’’ The CCM states that, ‘‘Since 

each retrofit installation is unique, no 

general factors can be developed. A 

general rule of thumb as a starting point 

for developing an appropriate retrofit 

factor is: The larger the system, the more 

complex (more auxiliary equipment 

needed), and the lower the cost level 

(e.g. study level, rather than detailed), 

the greater the magnitude of the retrofit 

factor.’’ Thus, retrofit difficulty factor 

may factor in some uncertainty and be 

higher to account for that. 

In the cost estimates EPA developed, 

retrofit factors were determined from 

satellite images using the following 

considerations: (1) Available access to 

and from the site for transportation of 

equipment and available space for 

laying down construction materials; (2) 

Location of equipment relative to each 

other and whether there is a substantial 

amount of demolition necessary in order 

to make room for SCR equipment; and 

(3) Access for a crane. At a highly 

congested site, crane access can be 

difficult and may entail a more costly 

approach. Access for a crane is a 

particular concern for internal units 

when units are located side-by-side. 

There are no strict guidelines used for 

determining the actual value of retrofit 

factors. They are a matter of judgment. 

Per the CCM at 2.5.4.2 (page 2–28, 

Chapter 2 Cost Estimation: Concepts 

and Methodology), ‘‘[t]he proper 

application of a retrofit factor is as much 

an art as it is a science, in that it 

requires a good deal of insight, 

experience, and intuition on the part of 

the analyst.’’ What follows is the 

explanation for each of the retrofit 

factors used at each of the sites. As will 

be shown, the retrofit factors were the 

result of a thoughtful process, and were 

not arbitrary. 

With regard to the Dave Johnson site, 

this is one of the more congested sites 

in Wyoming. Per the Andover report on 

estimated costs of NOX controls: ‘‘Based 

upon the close proximity of the boilers 

and associated equipment to one 

another, decommissioned chimneys that 

will limit access and ability to move a 

crane, the coal pile and coal conveyors 

that also limits access to the area of the 

units where construction would occur, 

the office building that is adjacent to 

Unit 1 and limits access, and the Unit 

4 scrubber, retrofit of an SCR on Units 

1–4 would likely entail a significantly 

higher than average retrofit cost. Unit 4 

probably has the best access of all of the 

units because there may be some space 

between the boiler and the scrubber, but 

it is difficult to say for sure from the 

image and therefore a conservatively 

high retrofit difficulty was used for unit 

4 that is consistent with the other 

units.’’ 201 As noted, the site is fairly 

congested for all units, justifying a high 

retrofit factor of 1.5 for all units, not just 

the middle units. 

Jim Bridger is also limited on space, 

but not so much so as Dave Johnston: 

‘‘Based upon the satellite photo, the 

SCR reactors would likely be installed 

above the ESPs and ductwork routed to 

the boiler. The boilers do not appear to 

be unusually constrained from the 

perspective of installing SCR ductwork; 

however, access for construction 

equipment will be much more difficult 

to achieve for the two middle units. The 

scrubbers and associated piping will 

limit access somewhat. Unit 4 access 

will be limited somewhat by the coal 

conveyor and because it’s scrubber takes 

up more room than the other scrubbers. 

For this reason a retrofit difficulty factor 

of 1.5 is assumed for the middle units 

and 1.25 for units 1 and 4.’’ 202

On the other hand, as is apparent 

from the satellite image, Laramie River 

is a more open site than Dave Johnson. 

Satellite images ‘‘show a less 

constrained site than Dave Johnston, 

with good access to both units 1 and 3. 

The coal conveyor is clearly visible and 

will be an obstruction for the unit 2 

SCR. As a result, retrofit difficulty of 

installing SCR is expected to be average, 

except possibly for unit 2 which is 

located between units 1 and 3. Access 

of a crane will be somewhat more 

challenging for Unit 2 and an SCR 

retrofit difficulty of 1.2 is assumed for 

estimating SCR capital cost. In all cases 

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5154 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

203Andover Technology Partners, ‘‘Cost of NOX

Controls on Wyoming EGUs’’, October 28, 2013, 

p. 39; Wyoming EGU BART and Reasonable 

Progress Costs—10/28/2013. 

204Andover Technology Partners, ‘‘Cost of NOX

Controls on Wyoming EGUs’’, October 28, 2013, 

p. 52; Wyoming EGU BART and Reasonable 

Progress Costs—10/28/2013. 

the SCR reactor is likely to be installed 

above the ESP ductwork.’’ 203

Naughton is much more congested 

than Laramie River, although access 

appears slightly better than for Dave 

Johnson. Per the Andover report: 

Babcock & Wilcox provided cost estimates 

for the Naughton unit 1 & 2 SCRs. Babcock 

& Wilcox’s estimate assumed that it would be 

necessary to demolish stacks that will be 

abandoned after a planned scrubber 

installation and they also determined that 

additional fan capacity was not necessary. 

Babcock & Wilcox also assumed a complex 

support structure would be needed, which 

adds cost. Babcock and Wilcox also stated 

that units 1 and 2 are slightly offset which 

makes it impractical to build a common 

support structure for the SCR reactors; 

however, . . . Babcock & Wilcox has used a 

longer horizontal duct run on the unit 1 SCR 

which places the unit 1 and unit 2 SCR 

reactors side-by-side so that a common 

support structure is likely to be possible, 

offering some potential savings from what 

they have estimated. Alternatively, a shorter 

horizontal duct run on unit 1 may make it 

possible to avoid demolition of the unit 1 

chimney that will be abandoned. When using 

the IPM algorithm a retrofit difficulty factor 

of 1.3 is assumed. This was based upon the 

fact that it appeared to be a less congested 

site than Dave Johnston, but there were 

potential challenges, such as the chimneys, 

that could result in longer duct runs or 

additional demolition. 

For unit 3 it is also unclear if there is 

enough space to install the SCR reactor on 

the same side of the chimney as the boiler, 

which, means that demolition of that 

chimney may be needed. There appears to be 

access for construction equipment, such as a 

crane, in the area east of the plant (the upper 

part of the photo) and to the north of unit 3. 

In estimating the cost of the SCR for unit 3, 

retrofit difficulty is above average because 

more lengthy duct runs or demolition of the 

chimney are likely needed, and an assumed 

retrofit difficulty factor of 1.3 is assumed for 

unit 3. 

Hence, Naughton is assumed to be an 

above average retrofit difficulty because 

of the potential for some significant 

interference from some equipment and 

the possible need for longer than 

average duct runs. 

For Wyodak, access to the site appears 

good, but there are some possible issues 

that might come up if the existing (but 

decommissioned) ESP needs to be 

demolished, which was the reason for 

the above average retrofit factor of 1.3. 

Per the Andover report: 

In the event SCR were installed at the site, 

the SCR reactor would likely be located 

above the existing (but decommissioned) ESP 

shown between the boiler building and the 

chimney . . . There is ample room on the 

site for lay down of material. Location of a 

crane near the construction site appears to be 

possible; however, in every direction from 

the boiler there is a potential interference 

that might complicate crane location relative 

to the lay-down area. Therefore, the difficulty 

of this retrofit is probably average to perhaps 

above average. A conservative estimate of 

retrofit difficulty of 1.3 is assumed, although 

a closer examination of the site may show 

that a lower retrofit difficulty may be 

possible.204

As a result, the retrofit factors used 

were not arbitrary but the result of a 

thoughtful process of examining the site 

for issues that would affect the difficulty 

of the retrofit. 

Comment: EPA’s application of the 

maximum retrofit factor (1.5) to Dave 

Johnston Units 1 and 2 is unsupported 

and leads to a significant $1.5 million/ 

year and $800/ton overestimation of 

average costs. Neither PacifiCorp nor 

Wyoming proposed a retrofit factor for 

these units. It is especially surprising 

that EPA has applied the maximum 

retrofit factor to all four units at Dave 

Johnston, and that even an ‘‘end’’ unit 

like Unit 1 is considered to have the 

highest degree of retrofit difficulty. It 

has been our experience that end units 

are typically the easiest to retrofit, while 

the more difficult retrofits are associated 

with ‘‘middle’’ units. Once the SCR 

costs are corrected to address the issue 

discussed above, the incremental costs 

become $5,700–$5,800/ton (versus 

$7,050/ton at Bridger Unit 2). 

The EPA applied a retrofit factor of 

1.5 to Dave Johnston Units 1–3, citing 

close proximity of boilers, 

decommissioned chimneys and the coal 

pile. It is not clear that these issues 

warrant a 50 percent increase in SCR 

costs due to retrofit difficulty at Units 

1–3. 

Response: EPA’s estimate of retrofit 

factor is based upon a thoughtful 

consideration of the various factors 

described in the previous response. 

With regard to the Dave Johnston site, 

this appears to be one of the more 

difficult sites in Wyoming from the 

perspective of retrofit. 

Comment: EPA’s application of the 

maximum retrofit factor (1.5) to SCR on 

Dave Johnston Unit 4 is unsupported 

and leads to a significant $3.8 million/ 

year and $900/ton overestimation of 

average costs. Neither PacifiCorp nor 

Wyoming proposed a retrofit factor for 

this unit. We disagree with EPA’s 

decision to apply the maximum retrofit 

factor to all four units at Dave Johnston, 

and that even an ‘‘end’’ unit like Unit 

4 is considered to have the highest 

degree of retrofit difficulty. It has been 

our experience that end units are 

typically the easiest to retrofit, while the 

more difficult retrofits are associated 

with ‘‘middle’’ units. 

The CCM retrofit factor is $728/

MMBtu/hr and, for medium-size boilers 

like Dave Johnston Unit 4 or Wyodak. 

This represents a 23%–24% increase in 

the direct capital cost. For Dave 

Johnston Unit 4, the EPA applied a 

retrofit factor of 1.5 to the costs of SCR 

because ‘‘[t]here may be more space 

available near unit 4 for a retrofit of 

SCR, but this is unclear from the 

photograph.’’ This is a very questionable 

basis to justify increasing the costs of 

SCR by 50 percent. 

Response: Because of the congestion 

of the overall site at Dave Johnson plant, 

a large reduction of retrofit factor to well 

below 1.5 was not justified even though 

Unit 4 is an end unit. There appears to 

be other equipment in the vicinity of 

Unit 4 that would obstruct access and 

maintaining a retrofit factor of 1.5 seems 

reasonable. 

Comment: The EPA assigned a 1.3 

retrofit factor to the SCR cost estimate 

for the single unit Wyodak plant. It 

appears the main reason for applying 

this factor is because the SCR would 

likely have to be placed on top of the 

decommissioned ESP, and that space 

constraints were not an issue. Although 

the EPA summarized that ‘‘. . . the 

difficulty of this retrofit is probably 

average to above average since it is 

common to have some relocation of 

equipment,’’ the EPA applied a 30 

percent increase to the SCR costs for 

Wyodak. 

Response: As noted by the 

commenter, EPA determined that a 

retrofit factor of 1.3 is conservative at 

Wyodak. But, because of the possible 

items that are apparent (as described 

above) from the satellite photograph and 

that could get in the way, it was not 

regarded as below average difficulty, but 

perhaps something slightly above 

average. EPA therefore does not believe 

that the retrofit factor should be lower 

than 1.0 and it may be as high as 1.3. 

EPA is basing its cost analysis on the 

more conservative estimate. 

Comment: In Montana, EPA used the 

IPM algorithms for some sources and 

not for others, asserting only that use of 

IPM ‘‘was intended to ensure that the 

direct capital costs reflect the most 

recent cost levels seen in the 

marketplace’’ and thus did not overestimate costs. 77 FR 57888. EPA also 

used IPM for the Arizona FIP but failed 

to address how its use was consistent 

with either the BART Guidelines or the 

CCM. 77 FR 72512 (Dec. 5, 2012). In 

Colorado, EPA said the State’s cost 

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Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 5155 

205Andover Technology Partners, ‘‘Cost of NOX

Controls on Wyoming EGUs,’’ October 28, 2013; 

Wyoming EGU BART and Reasonable Progress 

Costs—10/28/2013; Wyoming EGU BART and 

Reasonable Progress Costs for Jim Bridger—10/28/ 

2013. 

estimates for Craig Unit 1 deviated from 

the CCM but accepted them anyway 

because EPA was pleased with a State 

law that required emission reductions 

from certain other EGUs. 77 FR 76875. 

EPA sometimes supplements the CCM 

with a rule that installed SCR retrofit 

costs must fall between $79/kW and 

$316/kW, unless the state justifies a 

deviation from this range. North Dakota 

SIP, 77 FR 20929; Montana FIP, 77 FR 

57889; New Mexico FIP, 76 FR 52388, 

52392. EPA has proposed to apply this 

rule to the Wyoming SIP and FIP, 78 FR 

34738. This cost range is derived from 

‘‘industry studies’’ and does not appear 

anywhere in the CCM. Supplementing 

the CCM with this new requirement is 

inconsistent from the terms of the CCM 

and BART Guidelines. 

Response: We agree that we have used 

the IPM control cost algorithms in 

various regional haze rulemakings as 

noted by the commenter. And as noted 

by the commenter, our intent in using 

the IPM cost algorithms was to ensure 

that our capital cost estimates for SCR 

reflect those currently found in the 

marketplace. Elsewhere in these 

responses to comments, we have 

documented in some detail how our use 

of the IPM algorithms is consistent with 

the BART Guidelines and CCM. We 

disagree that we have supplemented the 

CCM with a rule that retrofit costs must 

fall between $79/kW and $316/kW— 

2010 dollars ($81/kW to $324/kW when 

escalated to 2013 dollars), which was 

the range of actual installed capital costs 

found in recent industry studies as cited 

in our final rule for North Dakota. In the 

North Dakota rulemaking, we used this 

information to assess whether costs 

supplied to EPA by states or sources 

were consistent with those observed in 

the industry for numerous other retrofits 

spanning a wide range of retrofit 

difficulties. As such, this in no way 

represents a requirement imposed by 

EPA; rather, it represents a very 

practical means by which EPA has 

gauged the validity of costs. We 

acknowledge that, given exceptionally 

difficult retrofit circumstances or other 

factors, it is possible for a particular 

retrofit to fall outside of this range. In 

fact, we note that our revised costs 

supporting this final rule are in some 

cases in excess of the cited range. Our 

revised SCR costs for BART EGUs, when 

represented on a dollar per kilowatt 

basis, range from $222/kW to $467/kW, 

with a median cost of $322/kW (2013 

dollars).205 From this, it is clear that we 

have not established a requirement that 

SCR capital costs fall within the cited 

range as suggested by the commenter. 

For our Colorado final action, we are 

currently in litigation over our approval 

of the State’s BART determination for 

Craig. 

Comment: EPA inappropriately 

claimed that ‘‘Wyoming’s SCR capital 

costs on a $/kW basis often exceeded 

real-world industry costs’’ (78 FR 

34748) and then refers to industry 

studies conducted between 2002 and 

2007 that report installed unit capital 

costs actually incurred by owners 

broadly ranging ‘‘from $79/kW to $316/ 

kW (2010 dollars).’’ Id. EPA also noted 

‘‘instances’’ in its proposed FIP ‘‘in 

which Wyoming’s source-based cost 

analyses did not follow the methods set 

forth in the EPA CCM.’’ EPA is simply 

incorrect in stating that Wyoming’s 

analyses were flawed and did not reflect 

real-world industry costs for the units 

being analyzed. The commenter states 

that they are presenting information on 

the ‘‘real-world’’ costs for the upcoming 

Jim Bridger Units 3 and 4 SCR projects, 

which recently were competitively bid 

for engineering, procurement, and 

construction contracts to be installed in 

accordance with the requirements in the 

Wyoming SIP. These real-world costs, in 

turn, can easily be compared to the costs 

assessed by Wyoming and by EPA in 

their BART determinations. 

Even when including AFUDC, the 

Wyoming SIP cost basis aligns closely 

with the EPA’s cost basis, with each 

agency again understating real world 

costs for these projects. By extension, 

this real-world cost information for Jim 

Bridger Units 3 and 4 validates the 

methodology used by Wyoming to 

determine cost information for each of 

PacifiCorp’s BART Units. This 

information clearly disputes EPA’s 

claims in its FIP that Wyoming ‘‘did not 

properly or reasonably take into 

consideration the costs of compliance’’ 

and that its SCR cost analyses exceeded 

real world industry costs and were 

flawed. Id. 

Response: We disagree that it was 

incorrect for EPA to state Wyoming’s 

cost analyses for SCR were flawed. As 

discussed in our proposed rule, EPA 

found several deficiencies with 

Wyoming’s cost analyses, including: 

Inclusion of AFUDC, inclusion of some 

inappropriate owner’s costs, insufficient 

documentation to support vendor 

estimates or bids, and use of incorrect 

baseline emission rates. 78 FR 34749. 

These deficiencies represented a 

departure from the procedures outlined 

in the CCM and BART Guidelines and, 

particularly when taken collectively, 

had a material impact on the cost 

estimates. We have addressed why each 

of these items are inconsistent with the 

CCM and BART Guidelines in other 

response to comments here. 

Moreover, since the time of the State’s 

analyses, EPA has been made aware of 

additional pertinent information by 

commenters, much of which has been 

incorporated into the revised costs 

presented in this final rulemaking. 

Examples include: Inclusion of certain 

costs submitted by the facility owner’s 

where appropriately documented, 

shorter useful life for one facility, 

correction for elevation, use of ammonia 

instead of urea as SCR reagent, revised 

SNCR reagent consumption for some 

facilities, and use of busbar costs for 

auxiliary power in place of market 

prices. 

Regarding whether Wyoming’s costs 

exceeded real world industry costs, see 

EPA’s response to comment 

immediately above. 

Comment: Wyoming did not 

overestimate the costs of SCR. The EPA 

claimed to have identified a number of 

flaws in Wyoming’s cost analyses for 

SCR (78 FR 34748), but only identified 

one flaw—that ‘‘Wyoming’s SCR capital 

costs on a $/kW basis often exceeded 

real-world industry costs.’’ The EPA’s 

use of the word ‘‘often’’ indicates that 

Wyoming’s costs did not always exceed 

real-world costs, but the EPA did not 

explain which costs exceeded realworld costs and which did not. 

The EPA specifically alleged only that 

the cost estimates for Dave Johnston 

Units 3 and 4, Naughton Units 1, 2, and 

3, and Wyodak ‘‘are in excess of the 

range of capital costs documented by 

various studies for actual installations,’’ 

and that the EPA based this conclusion 

of five industry studies conducted 

between 2002 and 2007. The EPA did 

not explain why the State was wrong to 

rely on vendor submitted, engineered, 

site-specific cost estimates instead of 

reports of installations at other facilities 

as long as a decade ago. The State’s 

costs of compliance are based on sitespecific capital costs, operating costs, 

and maintenance costs provided by the 

companies in their applications for a 

state BART permit, and over 50 percent 

of the costs of compliance is driven by 

the capital cost to engineer and 

physically install a SCR system. Such 

costs must be evaluated on a case-bycase basis in accordance with Appendix 

Y. Variable costs, including reagent 

usage (ammonia), account only for 2 to 

7 percent of SCR costs. 

The BART Guidelines not only allow, 

but encourage states to take into account 

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5156 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

206Wyoming Regional Haze SIP, Attachment A, 

‘‘BART Analysis for Dave Johnston Unit 3,’’ 

prepared for PacifiCorp by CH2MHILL, December 

2007, page 3–7. 

207Wyoming Regional Haze SIP, Attachment A, 

‘‘BART Analysis for Dave Johnston Unit 3,’’ 

prepared for PacifiCorp by CH2MHILL, December 

2008, Attachment 1. 

208Wyoming Regional Haze SIP, Attachment A, 

‘‘Addendum to Dave Johnston Unit 3 BART 

Report,’’ prepared for PacifiCorp by CH2MHILL, 

March 26, 2008, Attachment 1. 

site-specific conditions that impact the 

cost of installing emission controls. 

Until the EPA explains why it was 

unreasonable for Wyoming to prefer 

site-specific, real-world costs over 

speculative extrapolation of costs 

incurred at other facilities many years 

past, the EPA cannot lawfully displace 

the State’s judgment simply because 

EPA prefers one approach over the 

other. 

Response: We disagree that EPA only 

identified one material flaw in 

Wyoming’s costs estimates for SCR. See 

EPA’s response to comment 

immediately above where we identify 

several flaws. Because Wyoming’s 

approach to estimating SCR costs was 

not consistent with the BART 

Guidelines and CCM, it was appropriate 

for EPA to revise these costs in our 

proposed rule. 

We agree that the BART Guidelines 

encourage states to take into account 

site-specific conditions that impact the 

cost of installing emission controls. 

However, we disagree with the 

commenter’s characterization of the 

State’s costs of compliance for SCR as 

site-specific in nature on the mere basis 

that they were submitted by the sources. 

There is nothing in the record to 

support claims that these costs were in 

fact based on detailed site-specific 

vendor bids, or are in any manner more 

site-specific than those costs relied 

upon by EPA in our proposed rule. As 

an example, the BART application 

submitted by PacifiCorp for Dave 

Johnston Unit 3, and relied upon by 

Wyoming, states that: ‘‘Costs and 

schedules for the LNBs and OFA, SNCR, 

and SCR were furnished to CH2M HILL 

by PacifiCorp, developed using Sargent 

and Lundy’s internal proprietary 

database, and supplemented (as needed) 

by vendor-obtained price quotes. The 

relative accuracy of these cost estimates 

is stated by S&L to be in the range of 

plus or minus 20 percent.’’ 206

From this, it is clear that PacifiCorp, 

and thereby also the State, based SCR 

costs on ‘‘S&Ls internal database’’ and 

not a unique quotation specific to Dave 

Johnston Unit 3 supplied by an SCR 

vendor. Moreover, while the BART 

application refers to ‘‘vendor-obtained 

quotes,’’ it does not make clear for 

which items these quotes were obtained, 

if any, nor are any quotes for SCR 

included in the BART application. 

Instead, the total installed capital cost of 

SCR (with combustion controls) is 

shown in PacifiCorp’s economic 

analysis as a single line item with a 

value of $83,301,164, but without any 

detail or supporting documentation.207

In an update to its initial BART 

application, PacifiCorp subsequently 

increased the capital cost to 

$129,700,000, but again without any 

detail or supporting documentation.208

We note that the capital cost estimates 

for SCR presented by EPA in our 

proposed rule were also based on the 

Sargent & Lundy databases as these in 

turn underlie the IPM cost algorithms. 

As such, the commenter is mistaken 

when characterizing Wyoming’s capital 

costs as superior to those from EPA. 

However, the costs presented by EPA 

went on to correct the deficiencies that 

we have identified elsewhere (e.g., 

improper calculation of baseline 

emissions). Therefore, the capital costs 

provided from each agency were 

ultimately generated in a similar 

manner, but only the overall costs 

generated by EPA were in keeping with 

the BART Guidelines and CCM. 

It is notable that, in order to address 

our concerns regarding lack of sitespecific costs and associated 

documentation, the Wyoming sources 

have submitted additional cost 

information during the comment period 

for the proposed rule. The PacifiCorp 

comments include capital costs based 

on a vendor budgetary quote from 

Babcock and Wilcox, as opposed to 

capital costs based on the Sargent & 

Lundy databases. Similarly, Basin 

Electric has submitted a consultant’s 

report that, while conceptual in nature 

and without vendor-based equipment 

costs, provides a more detailed analysis 

of SCR costs for Laramie River than 

before. These submittals contain more 

recent and more detailed cost 

information than relied upon by 

Wyoming in their cost analyses. The 

submission of these updated costs from 

the sources, intended to supply more 

site-specific costs to EPA, belies claims 

by the commenter that the costs 

originally used by the State were 

‘‘vendor submitted, engineered, sitespecific cost estimates.’’ 

Comment: We would like to point out 

that while the EPA makes a point of 

saying in their proposed rule that they 

have followed their own guidelines in 

the CCM, that manual has not been 

updated since 2002. Representative 

Lummis of Wyoming has authored 

language to require the EPA to update 

its cost manual for the first time in over 

a decade. The old data in the old 

handbook no longer reflects the true 

costs of designing, engineering and 

installing controls. Before rejecting state 

data on the cost of compliance, the EPA 

must engage states and regulating 

entities to acquire real-world cost data 

and use that data to update its manual. 

Response: We consider the use of the 

broader costing methodology used by 

the CCM, the overnight method, as 

crucial to our ability to assess the 

reasonableness of the costs of 

compliance. Evaluation of the cost of 

compliance factor requires an 

evaluation of the cost-effectiveness 

associated with the various control 

options considered for the facility. A 

proper evaluation of cost-effectiveness 

allows for a reasoned comparison not 

only of different control options for a 

given facility, but also of the relative 

costs of controls for similar facilities. If 

the cost-effectiveness of a control 

technology for a particular facility is 

outside the range for other similar 

facilities, the control technology may be 

rejected as not cost-effective. In order 

for this type of comparison to be 

meaningful, the cost estimates for these 

facilities must be performed in a 

consistent manner. Without an ‘‘applesto-apples’’ comparison of costs, it is 

impossible to draw rational conclusions 

about the reasonableness of the costs of 

compliance for particular control 

options. Use of the CCM methodology is 

intended to allow a fair comparison of 

pollution control costs between similar 

applications for regulatory purposes. 

Just as importantly, while we have 

followed the broad methodology of the 

CCM as required by the BART 

Guidelines, we have also accounted for 

the cost of controls currently observed 

in the marketplace. In particular, our 

use of the cost calculations taken from 

the IPM, released in 2010, is designed 

to reflect modern day costs. Moreover, 

operation and maintenance costs for 

items such as labor, reagent, and 

catalyst, reflect current market values. 

In short, we have adhered to the broad 

overnight cost methodology specified in 

the CCM, while updating both capital 

and operation and maintenance costs to 

reflect current market conditions. 

Therefore, the commenter is mistaken in 

asserting that our costs are based on 

outdated information. 

Comment: EPA’s regional haze FIP 

also is improper because it assumes 

BART NOX controls over $5,000 per ton 

are ‘‘cost effective.’’ (See e.g., 77 FR 

33053.) Appendix Y, on the other hand, 

states that BART NOX control costs per 

ton above $1,500 are not ‘‘cost 

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effective.’’ In the preamble to the BART 

Guidelines, EPA suggests that 75% of 

the EGUs would have BART NOX

removal costs between $100 and $1,000 

per ton, and almost all of the remaining 

EGUs could install sufficient BART NOX

control technology for less than $1,500 

per ton. EPA also recognized in the 

preamble that SCR was generally not 

cost effective for EGUs, except for EGUs 

with cyclone boilers (where the cost per 

ton was less than $1,500 per ton, with 

an average of $900 per ton). Based upon 

EPA’s Preamble, BART NOX control 

technology that costs more than $1,500 

per ton should not be considered ‘‘cost 

effective.’’ Here, EPA found BART NOX

controls with a ‘‘cost effectiveness’’ 

number much more than $1,500 per ton 

to be ‘‘cost effective.’’ Therefore, EPA 

should withdraw its regional haze FIP. 

Response: We disagree with this 

comment. For each source subject-toBART, 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. 

Because the preamble generally 

discusses costs, this does not obviate the 

need for states (or EPA in the case of a 

FIP) to identify the best system of 

continuous emission control technology 

on a case-by-case basis considering the 

five factors. While EPA described 

various dollar-per-ton costs as ‘‘costeffective’’ in various preambles (e.g., 70 

FR 39135–39136), EPA did not establish 

an upper cost effectiveness threshold for 

BART determinations. 

Comment: Far from stating that the 

CCM must be the exclusive source of 

cost information, the BART Guidelines 

state that ‘‘[t]he basis for equipment cost 

estimates also should be documented, 

either with data supplied by all 

equipment vendor (i.e., budget estimates 

or bids) or by a referenced source (such 

as the EPA CCM]).’’ Although the BART 

Guidelines then say that cost estimates 

should he based on the CCM, it also 

says that the CCM should only he used 

‘‘where possible.’’ The Guidelines go on 

to say that the CCM ‘‘addresses most 

control technologies in sufficient detail 

for a BART analysis.’’ 

The CCM does not say that it 

addresses ‘all’ control technologies, just 

‘‘most’’, implying that the CCM does not 

supply all of the necessary information. 

Further, the Guidelines state that the 

cost analysis should ‘‘take into account 

any site-specific design or other 

conditions identified above that affect 

the cost of a particular BART technology 

option.’’ Again, the CCM acknowledges 

that there are conditions, design 

scenarios, etc. that are not addressed in 

the CCM but that exist in the real world 

that must be addressed. 

Response: We acknowledge that our 

BART guidelines state, ‘‘In order to 

maintain and improve consistency, cost 

estimates should be based on the [CCM], 

where possible’’ and that ‘‘[w]e believe 

that the [CCM] provides a goodreference tool for cost calculations, but 

if there are elements or sources that are 

not addressed by the Control CCM or 

there are additional cost methods that 

could be used, we believe that these 

could serve as useful supplemental 

information.’’ The CCM contains two 

types of information: (1) Study level 

cost estimates of capital and operation 

and maintenance costs for certain 

specific types of pollution control 

equipment, such as SCR, and (2) a 

broader costing methodology, known as 

the overnight method. We agree that the 

language of the BART Guidelines does 

not require strict adherence to the study 

level equations and cost methods used 

to estimate capital and operating and 

maintenance costs. 

We consider the use of the broader 

costing methodology used by the CCM, 

the overnight method, as crucial to our 

ability to assess the reasonableness of 

the costs of compliance. Evaluation of 

the cost of compliance factor requires an 

evaluation of the cost-effectiveness 

associated with the various control 

options considered for the facility. A 

proper evaluation of cost-effectiveness 

allows for a reasoned comparison not 

only of different control options for a 

given facility, but also of the relative 

costs of controls for similar facilities. If 

the cost-effectiveness of a control 

technology for a particular facility is 

outside the range for other similar 

facilities, the control technology may be 

rejected as not cost-effective. In order 

for this type of comparison to be 

meaningful, the cost estimates for these 

facilities must be performed in a 

consistent manner. Without an ‘‘applesto-apples’’ comparison of costs, it is 

impossible to draw rational conclusions 

about the reasonableness of the costs of 

compliance for particular control 

options. Use of the CCM methodology is 

intended to allow a fair comparison of 

pollution control costs between similar 

applications for regulatory purposes. 

This is why the BART guidelines 

specify the use of the CCM where 

possible and why it is reasonable for us 

to insist that the CCM methodology be 

observed in the cost estimate process. 

The overnight method has been used for 

decades for regulatory control 

technology cost analyses, and its use 

ensures equitable BART determinations 

across states and across sources. 

Comment: Although EPA contends 

that States must conform in all respects 

to the Agency’s CCM, its own consultant 

ignores the Manual when calculating 

capital costs and operating and 

maintenance costs, and instead uses an 

entirely different methodology called 

the IPM. 78 FR 34749. EPA tries to 

finesse this problem by asserting that 

the consultant followed ‘‘the structure 

of’’ the CCM and BART Guidelines, id., 

but that simply is not true. The IPM is 

a fundamentally different tool and uses 

a fundamentally different methodology 

than the CCM—it does not follow the 

CCM. Therefore, to rely on the 

consultant’s cost report to disapprove 

Wyoming’s cost analysis and BART 

analysis would be arbitrary and 

capricious, and not in accordance with 

law. 

Response: We disagree. As noted 

elsewhere in these responses to 

comments, in our revised cost estimates, 

we have followed the broad 

methodology of the CCM, referred to as 

the overnight method, while updating 

capital and operating and maintenance 

costs to reflect current real-world costs. 

In doing so, we directed our consultant 

(Andover) to reconcile anything in the 

IPM cost algorithms that would be 

inconsistent with the CCM’s overnight 

method. For example, the IPM cost 

algorithms include AFUDC, which as 

we have established elsewhere in these 

response to comments, is not part of the 

overnight costs. Accordingly, our 

consultant eliminated this cost when 

utilizing costs derived IPM cost 

algorithms. In effect, we have ‘‘squared’’ 

the IPM-based costs with the 

methodology required by the CCM. 

Comment: EPA’s average cost 

effectiveness for combustion controls 

and SCR for the Laramie River units is 

higher than Wyoming’s average cost 

effectiveness. Compare, e.g., 78 FR 

34773, Table 36 (Wyoming’s SCR 

average cost effectiveness of $3,372/ton 

for Unit 1) with 78 FR 34775, Table 39 

(EPA’s SCR average cost effectiveness of 

$3.718/ton for Unit 1). The higher the 

cost effectiveness of a given technology, 

the stronger the case for rejecting it. If 

the State was justified in rejecting SCR 

based on its lower predicted cost of 

SCR, it would be even more justified in 

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rejecting SCR if it had used EPA’s 

higher cost. The outcome would not 

have changed, and so any error alleged 

by EPA is not material. 

EPA’s incremental cost effectiveness 

for combustion controls plus SCR, 

compared with the cost effectiveness of 

combustion controls plus SNCR, is 

lower than Wyoming’s incremental cost 

effectiveness. However, in considering 

cost effectiveness for purposes of both 

its SIP disapproval and its FIP proposal, 

EPA cites and relies primarily on the 

average cost effectiveness for SCR, not 

the incremental cost. 78 FR 34776 

(‘‘[T]he cost-effectiveness for new LNBs 

with OFA and SCR ranges from 

approximately $3600/ton to $3900/ton 

with significant visibility improvement 

at the most impacted Class I area. . . . 

When considering the cost effectiveness 

and visibility improvement of new 

LNBs plus OFA and SCR, it is within 

the range of what EPA has found 

reasonable for BART in other SIP and 

FIP actions.’’) EPA refers to incremental 

cost only incidentally—not as an 

affirmative reason for disapproving 

Wyoming’s BART. Id. (‘‘We also 

propose to find that the incremental 

cost-effectiveness does not preclude the 

selection of new LNBs with OFA and 

SCR.’’). 

Response: We disagree. The 

commenter fails to note that the 

visibility improvement presented by 

EPA in our proposed rule is higher than 

that found by the State. The tables cited 

by the commenter show a visibility 

improvement from SCR of 0.44 

deciviews resulting from the State’s 

analysis, while EPA’s analysis showed a 

visibility improvement of 0.79 

deciviews. We found that, when 

balancing all of the BART factors, this 

level of visibility improvement was 

significant enough to justify the costs 

associated with SCR. In our revised 

visibility modeling analysis for this final 

rule, we have presented a lower 

visibility improvement for Laramie 

River Unit 1 of 0.57 deciviews. We 

continue to find that this level of 

visibility improvement, and 

consideration of the other BART factors, 

warrants installation of SCR. The same 

can be said for the other two Laramie 

River units. 

Additionally, the SCR costs and 

visibility improvement for the Laramie 

River units provided by the State and 

EPA are not directly comparable. In the 

BART application submitted by Basin 

Electric, and relied upon by the State, 

and unlike in the case of SNCR, no 

additional combustion controls are 

assumed in the SCR control scenario. 

Since the time that Basin Electric 

submitted the BART application to the 

State, additional combustion controls 

have been installed on the Laramie 

River units. We have taken account of 

these additional controls in our 

analyses. When assessing the emission 

reductions from SCR (or SNCR), and the 

associated costs and visibility 

improvement, we incorporated the 

actual emission rates currently being 

achieved with the additional 

combustion controls. We have presented 

the costs of compliance and visibility 

for the additional combustion controls 

plus SCR, much in the same way that 

the State presented the same factors for 

the PacifiCorp units. 

Comment: The costs of SCR plus 

combustion controls are cost effective at 

all of the Wyoming EGUs regardless of 

whether the costs are based on EPA’s 

cost analyses or the commenter’s 2012 

cost analyses conducted for the original 

Wyoming SIP. SCR costs for each EGU 

in Wyoming, show that SCR plus 

combustion controls is very cost 

effective for all BART-subject EGUs and 

also Dave Johnston Units 1 and 2. 

Further, even EPA’s June 2013 cost 

estimates for SCR plus combustion 

controls show that these controls are 

cost effective at all Wyoming EGUs, 

despite what the commenter believes 

are deficiencies in EPA’s cost 

effectiveness analyses that overestimate 

the costs of SCR plus combustion 

controls. These costs are within the 

range that has been required or 

proposed of other similar sources to 

meet BART as follows: 

• Final NOX BART determination for 

San Juan Units 1–4 requires installation 

of SCR at all four units to meet a NOX

emission limit of 0.05 lb/MMBtu, found 

that the costs ranged from $1,987/ton to 

$2,651/ton of NOX removed, in 2010 

dollars. 

• EPA Region 9 has proposed SCR as 

BART for Four Corners Units 1–5 to 

meet a NOX limit of 0.11 lb/MMBtu at 

a cost effectiveness of $2,515/ton to 

$3,163/ton in 2008 dollars. That 

converts to $2,407/ton to $3,028/ton in 

2010 dollars. 

• In its FIP for Montana, EPA found 

that the cost effectiveness of SCR 

controls for Colstrip Units 1 and 2 of 

approximately $3,200/ton per unit (in 

2010 dollars) was reasonable. 

• In its FIP for Arizona regional haze, 

EPA is requiring SCR along with 

combustion controls to meet BART at 

the BART-subject coal-fired units at 

Apache, Cholla, and Coronado power 

plants at cost effectiveness values 

ranging from $2,275/ton to $3,472/ton. 

Response: We agree that the costs for 

SCR plus combustion controls presented 

in our proposed rule, taken without 

consideration of the remaining BART 

factors, may generally be considered 

cost effective. However, the CAA and 

RHR require a consideration of all five 

BART factors. For example, a control 

that is considered cost effective may not 

be warranted if the visibility 

improvement is minor. Also, there may 

be occasions that, while the average cost 

effectiveness of a control is reasonable, 

the incremental cost effectiveness may 

not be. In short, EPA must weigh more 

than just the cost effectiveness when 

considering BART. 

Also note that, as described elsewhere 

in these responses to comments, we 

have revised the SCR cost estimates that 

we presented in our proposed rule. In 

today’s final rule, we have again 

balanced the costs along with the 

remaining BART factors when 

considering the selection of BART 

controls. 

Comment: EPA’s proposed FIP is 

arbitrary, capricious, and contrary to 

law for a number of reasons, including 

that the EPA’s BART analyses ignored 

relevant data. Wyoming based its BART 

analyses on site-specific, engineered, 

vendor submitted bids for installing 

emission controls (citing the SIP 

Attachment A materials related to 

Laramie River Station), and Basin 

Electric has submitted to EPA comments 

extensively explaining the bases for 

these cost estimates, including the 

substantial technical difficulty of 

installing SNCR and SCR at Laramie 

River Station due to the design of the 

three units. The EPA has disregarded 

the site-specific cost estimates 

submitted for Laramie River Station and 

the other BART sources in Wyoming, 

and the EPA has alleged without any 

specificity that Wyoming did not 

properly or reasonably take into 

consideration the costs of compliance. 

The EPA relied on the IPM Model with 

retrofit factors adjusted on a source-bysource basis, instead of relying on the 

site-specific costs. 

EPA’s October 23, 2012 revised cost 

memo states that ‘‘[t]he retrofit factor is 

a subjective factor used to account for 

the estimated difficulty of the retrofit 

that is unique to the facility’’ and noted 

that these retrofit factors were 

determined without site visits, but 

based on satellite images of the 

facilities. At EPA’s public hearing in 

Casper, Wyoming, on July 26, 2013, 

Basin Electric’s consultant, Kenneth 

Snell, explained to EPA in detail how 

the satellite images fail to reveal 

multiple conditions specific to Laramie 

River Station that make installing SCR 

far more expensive than EPA’s 

consultant assumed. EPA’s failure to 

rebut those positions is arbitrary and, 

moreover, that the EPA’s methodology— 

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209Wyoming Department of Environmental 

Quality Air Quality Division BART Application 

Analysis AP–6047 May 28, 2009. 

relying on a subjective interpretation of 

satellite images—is itself arbitrary and 

capricious because it strains credulity to 

claim that one can assess retrofit costs 

by simply looking at hazy satellite 

pictures of a power plant. 

Response: EPA disagrees. First, 

Wyoming’s BART analysis 209 was based 

upon a 2008 cost estimate by Basin 

Electric, which, when adjusted for the 

fact that they were performed prior to 

addition of combustion controls, 

resulted in similar capital costs for SCR 

and similar cost effectiveness. 

Moreover, and as noted in previous 

responses, the costs submitted by 

Wyoming should not be considered sitespecific estimates, and therefore 

superior to EPA’s costs, on the mere 

basis that they were submitted by a 

source. In any case, with their 

comments on EPA’s reproposal, Basin 

Electric has roughly doubled their 

claimed cost of SCR, but these were not 

part of the Wyoming BART analysis. 

These new costs submitted by Basin 

Electric are presumably intended to be 

more site-specific in nature than those 

originally submitted to the State. 

Second, the new costs offered by 

Basin Electric were found to be deficient 

in a number of respects that are 

discussed more specifically in other 

responses to comments. The new costs 

estimates included numerous costs that 

were inadequately explained or without 

any supporting documentation. The 

new cost estimates also did not include 

vendor quotes. Per Basin Electric’s 

Exhibit 14, page 21: ‘‘The LRS [Laramie 

River Station] cost estimates are 

conceptual in nature; thus, S&L did not 

procure equipment quotes specifically 

for the LRS control systems.’’ 

EPA also disagrees with the 

commenter regarding the use of satellite 

images for assessing retrofit difficulty. 

As noted in responses to other 

comments, because they provide a 

unique ‘‘bird’s eye’’ view, satellite 

images are routinely used to evaluate 

conditions at a site: Available space for 

a crane, access to and from the site, 

interferences that may exist at the site 

boundary, interferences between major 

pieces of equipment, available space for 

laying down material. With regard to 

SCR installation, satellite images cannot 

reveal whether or not the air preheater 

must be relocated to accommodate SCR 

ductwork; however, none of the 

commenters indicated that any affected 

Wyoming BART sources found it 

necessary to relocate their air preheater. 

Satellite images cannot reveal the ‘‘ideal 

location’’ for reagent storage equipment, 

although this is not a large impact on 

cost. When possible and resources 

allow, site visits may also provide 

useful data in addition to satellite 

images, but these are generally 

performed in addition to rather than in 

lieu of analysis of satellite images. 

Mr. Snell’s comments are largely 

addressed in other comments and 

broadly fall into three areas: (1) 

Criticism of EPA’s use of the IPM 

algorithm for estimating SCR cost; (2) 

Assertions that EPA failed to take into 

account site-specific factors affecting 

cost; (3) Assertions that EPA failed to 

take into account balance of plant 

systems that would need to be 

upgraded. Each of these items raised by 

Mr. Snell as well as the specific issues 

within each item has been addressed 

elsewhere in other responses to 

comments. 

Comment: It has been our experience 

that the effectiveness of SNCR is highly 

dependent upon the characteristics of 

each boiler. EPA states that SNCR 

typically reduces NOX an additional 20 

to 30% above combustion controls 

without excessive NH3 slip. NOX

reduction with SNCR is known to be 

greater at higher NOX emission rates 

than lower rates. Accordingly, EPA has 

estimated that the NOX reduction from 

SNCR as 30% for initial NOX greater 

than 0.25 lb/MMBtu, 25% for NOX from 

0.20 to 0.25 lb/MMBtu and 20% for 

NOX less than 0.20 lb/MMBtu. 

To support this statement, EPA cites 

a memo from Jim Staudt, Andover 

Technology Partners (‘‘Review of 

Estimated Compliance Costs for 

Wyoming Electric Generating (EGUs)— 

Revision of Previous Memo’’, memo 

from Jim Staudt, Andover Technology 

Partners, to Doug Grano, EC/R, Inc., 

February 7, 2013, p 7), but this memo 

provides no evidence or documentation 

to support the assumptions that these 

control levels can be achieved. Such 

assumptions, whether or not supported, 

can significantly affect the outcome of a 

BART determination, as EPA explained 

regarding Laramie River: ‘‘Therefore, 

EPA predicts that the reduction that can 

be achieved with SNCR at the Laramie 

River units is 20%, which is much 

lower than the 48% assumed by 

Wyoming. This significantly reduces the 

tons reduced by SNCR which is in turn 

used in the calculation of cost 

effectiveness. It also affects the 

incremental cost effectiveness between 

SNCR and SCR (both in combination 

with additional combustion controls).’’ 

The use of incremental costs in this 

manner is extremely sensitive to bias 

due to the interjection of control 

strategies based upon invalid 

assumptions of control efficiency. 

Another commenter stated that the 

EPA is wrong to claim that Wyoming 

overestimated the ability of SNCR to 

reduce NOX. The commenter made the 

following points in support of this 

claim: 

• The CCM claims that ‘‘[r]eductions 

of up to 65% have been reported for 

some field applications of SNCR in 

tandem with combustion control 

equipment such as low NOX burners 

(LNB).’’ 

• Wyoming’s estimates are entirely 

consistent with demonstrated SNCR 

effectiveness. One study clearly 

concluded that ‘‘SNCR has the 

capability of NOX reductions in the 

range of 30–60%, depending on the 

specific retrofit application.’’ See EPRI, 

Cardinal 1 Selective Non-Catalytic 

Reduction (SNCR) Demonstration Test 

Program, at 1–2 (2000). That study 

showed, for example, that a 600 MW 

unit equipped with LNB could reduce 

NOX by an amount greater than EPA’s 

‘‘typical’’ results. 

• The EPA’s AP 42, Fifth Edition, 

Volume I, Chapter 1: External 

Combustion Sources recognizes that 

‘‘[t]he effectiveness of SNCR depends on 

the temperature where reagents are 

injected; mixing of the reagent in the 

flue gas; residence time of the reagent 

within the required temperature 

window; ratio of reagent to NOX and the 

sulfur content of the fuel that may create 

sulfur compounds that deposit in 

downstream equipment.’’ 

The commenter concluded that EPA’s 

own literature, as well as other studies, 

recognize that SNCR effectiveness is 

highly contextual and that it can 

achieve reductions far in excess of 

Wyoming’s estimates. 

The commenter asserted that the EPA, 

without explanation, disregarded its 

own position on the contextual nature 

of SNCR effectiveness, and in turn 

disregarded Wyoming’s well-reasoned 

analysis by relying instead on ‘‘typical’’ 

NOX reductions. The commenter 

believes that the EPA has practiced 

arbitrary decision making because the 

EPA did not explain in its proposal why 

it now prefers a generic approach to 

SNCR effectiveness in reducing NOX

over its previously expressed 

recognition that effectiveness depends 

on a host of facility-specific factors. 

Response: EPA agrees with the 

commenter that the effectiveness of 

SNCR is highly dependent upon the 

characteristics of each boiler, and those 

characteristics include furnace 

temperature, furnace CO concentration, 

NOX level and other factors, but furnace 

temperature, CO concentration, and 

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210Sun, W., Hofmann, J., and Pachaly, R., ‘‘PostCombustion NOX Reduction With Urea—Theory 

and Practice’’, Seventh Annual International 

Pittsburgh Coal Conference, September 10–14, 

1990. 

211Muzio, L., Montgomery, T., Quartucy, G., 

Texeira, D., ‘‘The Effect of Residence Time On 

SNCR Processes’’, EPRI/EPA 1992 Joint Symposium 

on Stationary Combustion NOX Control, Bal Harbor, 

FL, May 24–27, 1993. 

212Stallings, J., ‘‘Cardinal 1 Selective NonCatalytic Reduction (SNCR) Demonstration Test 

Program. EPRI Report 1000154, July 2000, pages 

4–7 and 8–1. 

213Exhibit 14, pages 15, 16. 

214 Department of Environmental Quality, Air 

Quality Division, BART Application Analysis, AP– 

6047, Laramie River Station, May 28, 2009. 

NOX level are most important. The 

tendency of NOX reduction to decrease 

as the NOX concentration is reduced is 

a well-established phenomenon. Utility 

boiler upper furnace temperatures are 

typically in the range of 2000–2300 °F, 

but can sometimes be lower or higher. 

As described in Section 1.2.3, SNCR 

Performance Parameters in the Control 

CCM, and also by Sun, Hofmann and 

Pachaly in 1990, and by Muzio, 

Montgomery, Quartucy and Texeira in 

1993,210 211 the percentage reduction in 

NOX is strongly impacted by the 

residence time, furnace temperature and 

the starting, or baseline, NOX. Because 

most utility boiler furnace temperatures 

and residence times fall into an 

expected range, the possible NOX

reduction is generally related to baseline 

NOX and Figure 1.5 of the CCM 

demonstrates the effect of baseline NOX

and temperature on NOX reduction. Of 

course, there are some units that may 

fall outside the typical range of furnace 

temperatures or CO levels, and can 

achieve higher or lower levels of NOX

reduction. As noted in our response to 

other comments, the furnace 

temperatures at Laramie River Station as 

reported by Basin Electric in their 

recently submitted comments are much 

higher than typical, and this will limit 

the possible NOX reduction. 

On the other hand, EPA disagrees that 

EPA ‘‘disregarded its own position on 

the contextual nature of SNCR 

effectiveness, and in turn disregarded 

Wyoming’s well-reasoned analysis’’. On 

the contrary, EPA carefully considered 

the contextual situation at Laramie 

River Station and the State’s analysis in 

reaching its opinion. Experience has 

shown that for utility boilers NOX

reductions of 48% using SNCR alone 

have only been possible from much 

higher NOX baselines than exist at 

Laramie River Station. In practice, 

facility owners have generally found 

that, when using SNCR, the lowest cost 

approach is to first reduce NOX as far as 

possible with combustion controls and 

then use SNCR for additional reductions 

beyond what combustion controls can 

provide. As a result, SNCR is rarely 

used alone to provide 48% NOX

reduction on electric utility boilers 

because the baseline levels in practice 

are typically too low to achieve such 

high NOX reduction through SNCR. 

The Cardinal Station citation raised 

by the commenter is from a test on a 600 

MW unit that had a NOX baseline of 

around 450–500 ppm of NOX 212—in the 

range of about 0.6 to 0.7 lb/MMBtu, well 

above the emission rate of the Laramie 

River Station units, which, after 

additional combustion controls is about 

0.19 lb/MMBtu (annual). This unit 

achieved 25% NOX reduction at full 

load and 30% NOX reduction at 350 

MW in long term tests. As a result, this 

project does not support the possibility 

of 48% NOX reduction with SNCR at 

Laramie River Station, which has a 

much lower baseline NOX level than at 

the Cardinal Station. 

Finally, in Exhibit 14 to Basin 

Electric’s comments,213 Sargent & 

Lundy states that a ‘‘33% reduction is 

not likely to be achievable’’ and 

conditionally indicates that a 20% 

reduction should be achievable from a 

baseline emission rate of 0.19 lb/

MMBtu. EPA agrees that based upon the 

information that is available, 20% is a 

more reasonable level of reduction to 

expect from SNCR at Laramie River 

Station. 

Comment: Contrary to EPA’s 

assertion, Wyoming’s estimate of the 

reduction achievable with SNCR does 

not depart from the BART Guidelines. 

The Guidelines do not specify the 

effectiveness of SNCR, so there is no 

contradiction. EPA observes that 

Wyoming assumed that after installation 

of combustion controls (new LNBs and 

OFA), SNCR would reduce NOX

emissions from 0.23 lb/MMBtu to 0.12 

lb/MMBtu, a 48% reduction. EPA, 

however, insists that its consultant 

contends that SNCR typically reduces 

NOX by 20% to 30%, depending on the 

level of NOX going to the SNCR unit. 

According to EPA’s consultant, when 

the input level of NOX is 0.19 lb/

MMBtu, which EPA says was the annual 

average at Laramie River Station Unit 1 

in 2012, then after installation of new 

LNBs and OFA the reduction achievable 

with SNCR is only 20%. 78 FR 34748. 

The consultant says that would reduce 

the NOX emission rate only to 0.15 lb/ 

MMBtu. Andover Report at 7. 

The only authority cited by EPA’s 

consultant for the assumed 20% 

reduction is an October 15, 2012 email 

from Fuel Tech. Id. at 13. No 

information is provided by EPA or its 

consultant about the expertise of Fuel 

Tech, who at Fuel Tech sent the email, 

why an email from Fuel Tech should be 

deemed reliable, persuasive or 

authoritative, or why it should take 

precedence over Wyoming’s analysis. 

EPA’s statements in the Montana FIP 

demonstrate that EPA’s critique of 

Wyoming’s estimate is misplaced. In 

that case, EPA determined that with an 

inlet concentration of 0.20 lb/MMBtu, 

SNCR can reduce NOX emissions by 

25%, as compared to the 20% EPA 

endorses for a nearly identical inlet 

concentration at Laramie River Station. 

77 FR 23988, 24023, 24032, 24039; 77 

FR 57864, 57885–57886. EPA relied on 

information from Fuel Tech to support 

the feasibility of a 25% NOX reduction 

at this inlet concentration. 77 FR 57885. 

EPA explained that: ‘‘[H]igher NOX

reductions can be achieved at mid to 

low load heat inputs, possibly up to 

40%. Given that the Colstrip Unit 1 and 

2 frequently operate at below full load, 

it is likely that on an annual basis SNCR 

can achieve better than the 25% 

emission reduction assumed by EPA. 

EPA further explained that its review 

of Clean Air Markets Division (CAMD) 

emissions data showed that ‘‘there are 

many EGUs equipped with SNCR (with 

combustion controls) that are achieving 

an emissions rate of 0.15 lb/MMBtu or 

lower on a monthly basis.’’ Id. at 57886 

(emphasis added). For example, Boswell 

Unit 4 had a NOX rate of 0.35 lb/MMBtu 

with LNB and close-coupled over fire 

air (CCOFA). Id. With SNCR and SOFA, 

the unit achieved a monthly NOX rate 

between 0.11 and 0.14 lb/MMBtu over 

a full 12 month period—a reduction of 

60% to 69%. Id. In response to 

comments that EPA had overstated the 

benefits of SNCR, EPA stated that it 

would not adopt a higher post-SNCR 

emission rate ‘‘without a showing that 

there are circumstances unique to 

Colstrip Unit 1 and 2 that would 

prevent SNCR from achieving the same 

reductions as at Boswell Unit 4.’’ Id. 

Response: As noted in other 

comments, EPA carefully considered the 

contextual situation at Laramie River 

Station in reaching its opinion. The 

Wyoming analysis 214 indicated that 

NOX was reduced by SNCR from 0.23 

lb/MMBtu to 0.12 lb/MMBtu. This 

seemed to be a higher level of NOX

reduction than expected and 

inconsistent with other experience. The 

BART analysis suggests no additional 

NOX reduction from OFA versus LNB. 

Experience has shown that for utility 

boilers NOX reductions of 48% using 

SNCR alone have only been possible 

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from much higher NOX baselines than 

exist at Laramie River Station, and a 

NOX reduction from 0.19 lb/MMBtu (the 

NOX emissions rate after installation of 

combustion controls) to 0.12 lb/

MMBtu—roughly 37% reduction—is 

not likely to be feasible either. In 

practice, facility owners have generally 

found that, when using SNCR, the 

lowest cost approach is to first reduce 

NOX as far as possible with combustion 

controls and then use SNCR for 

additional reductions beyond what 

combustion controls can provide. Those 

coal-fired utility units that the 

commenter states are achieving below 

0.15 lb/MMBtu emission rates and are 

equipped with SNCR are also using 

combustion controls—most often LNBs 

and SOFA—that lower the NOX

sufficiently that less than 20% NOX

reduction is necessary to achieve under 

0.15 lb/MMBtu. 

As a result, SNCR is rarely used alone 

to provide 48% NOX reduction on 

electric utility boilers because the 

baseline levels in practice are typically 

too low to achieve such high NOX

reduction through SNCR. In fact, Exhibit 

14 to Basin Electric’s comments, Sargent 

& Lundy states that ‘‘33% reduction is 

not likely to be achievable’’ and 

conditionally indicates that 20% 

reduction should be achievable from a 

baseline emission rate of 0.19 lb/

MMBtu. This is more consistent with 

what EPA has determined. 

EPA also cited input from SNCR 

technology supplier, Fuel Tech, which 

supports EPA’s opinion that an 

expected NOX reduction would be in 

the range of 20%. Fuel Tech is the 

largest supplier of SNCR technology to 

the electric utility industry and is 

therefore a very knowledgeable source 

of information on SNCR. 

Comment: Wyoming did not 

underestimate the usage and cost of 

urea, and its estimate regarding urea 

does not conflict with the BART 

Guidelines. EPA contends that producer 

prices for urea have increased over the 

past three years and that Wyoming’s 

analysis is defective because it does not 

take those price increases into account. 

EPA, however, cannot use information 

not available at the time of Wyoming’s 

BART determination to second-guess 

that determination. EPA’s own 

Guidelines counsel that in making a 

BART determination, a state should 

consider technologies ‘‘available before 

the close of the State’s public comment 

period,’’ but explicitly provide that ‘‘in 

order to provide certainty in the 

process,’’ a state ‘‘need not consider 

technologies that become available after 

this date.’’ 40 CFR Part 51, App. Y., 

section IV(D)(2)(3) (emphasis added). 

This makes sense. Absent some time 

cutoff, a state’s SIP would be in a 

constant state of flux, subject to constant 

challenge based on ever changing 

information and technology not 

available to the State at the time it made 

its BART determination. This is 

particularly true given the amount of 

time it takes EPA to review a state’s SIP. 

It is also consistent with 40 CFR 

51.308(f), which requires states to 

reevaluate and revise their regional haze 

SIPs every ten years. That regulation 

clearly contemplates that states have a 

duty to take into account new 

information only in connection with the 

required periodic SIP revisions—not on 

an ongoing basis. 

EPA is again overstepping its role in 

this process. Wyoming completed its 

BART analysis in 2009, more than three 

years ago, and it would have been 

impossible to incorporate the alleged 

urea price increases in that analysis. 

Simply put, Wyoming’s BART 

determination is hardly arbitrary and 

capricious simply because it failed to 

take into account alleged urea price 

increases some three years after 

Wyoming completed its BART analysis. 

Wyoming did precisely what the 

Guidelines instruct: made a BART 

determination based on information 

available before the close of its public 

comment period. 40 CFR Part 51, App. 

Y., section IV(D)(2)(3). To disapprove 

Wyoming’s cost analysis based on 

information that was not available to 

would be to employ a ‘‘gotcha’’ 

approach that runs contrary to EPA’s 

own regulations and counter to EPA’s 

commitment to do its job fairly and 

objectively. If the urea issue is truly 

material, EPA should, at a minimum, 

allow Wyoming to consider whether 

this new information would affect its 

BART determination before 

disapproving that determination. 

Another commenter made a number 

of the same points, stating that changes 

in urea prices are not a valid basis for 

disapproving the state’s cost analyses, 

and even if they were, EPA’s facts are 

mistaken. According to the commenter, 

the EPA asserted that the BART sources 

underestimated the cost of SNCR and 

EPA supported this conclusion by 

stating that Wyoming underestimated 

‘‘SNCR reagent (urea) usage and cost.’’ 

The commenter indicated that the EPA 

did not explain how Wyoming 

underestimated urea usage, but the EPA 

asserted that ‘‘prices for urea have 

increased in the last three years’’ since 

Wyoming submitted its plan to EPA. 

This commenter finds it remarkable 

that EPA would claim that a change in 

urea prices in the time since Wyoming 

submitted its SIP somehow invalidates 

the SIP, indicating that the time that has 

elapsed since Wyoming submitted its 

plan to EPA is due in large part to EPA’s 

failure to take timely action on 

Wyoming’s plan. According to the 

commenter, the EPA did not claim that 

Wyoming’s analyses were invalid when 

Wyoming submitted its plan in January 

2011, and the EPA did not explain how 

the change in urea market prices led 

Wyoming to unreasonable conclusions. 

The commenter stated that the EPA 

appears to believe that Wyoming and 

other states must constantly update 

their BART analyses to account for 

changing urea market prices up until the 

date that EPA takes final action on the 

plan. The commenter asserted that 

under this theory, the EPA can hold 

SIPs hostage, waiting for commodity 

prices to change, and then disapprove 

SIPs on that basis alone. The commenter 

indicated that the EPA cited no legal 

basis for this theory. 

The commenter noted that the BART 

Guidelines expressly acknowledge that 

‘‘[i]n order to provide certainty in the 

process,’’ states ‘‘need not consider 

technologies that become available after 

[the close of the comment period on the 

state plan] (citing 40 CFR part 51, App. 

Y, section IV(D)(2)(3)). The commenter 

believes that in order ‘‘to provide 

certainty in the process,’’ the EPA 

cannot claim that state plans are 

perpetually subject to invalidation as a 

result of changing commodity prices. 

The commenter stated that the State’s 

price for urea does not conflict with the 

BART Guidelines, and EPA offers no 

evidence that its price is more reliable 

than the State’s price. Commenter 

provided the following additional 

statements: Even if urea prices have 

increased, assumptions regarding such 

prices do not constitute a failure to 

follow the BART Guidelines because the 

Guidelines do not specify what the price 

is or how it should be determined. EPA 

relies on its consultant’s report to claim 

that prices have increased, but that 

report also says that there has been 

significant variability in cost. Andover 

Report at 7–8. There is no analysis by 

the consultant as to whether, given the 

cited price variability, the current price 

is likely to go up or down in the future 

or what the actual cost of urea is likely 

to be going forward. The consultant 

relies on a single source at a single point 

in time to pick a urea price to apply for 

the life of an SNCR installation, with no 

consideration of the price variability. 

The reliability of the resulting price is 

no greater than a roll of the dice at Las 

Vegas, and EPA offers no explanation 

why its consultant’s price is superior to 

the State’s price. It is merely different, 

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5162 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

215Citing PotashCorp., Market Data, August 14, 

2013, which can be found at http://

www.potashcorp.com/customers/markets/market_

data/prices. 

and this is yet another technical issue 

upon which EPA is required to defer to 

the State’s assessment. 

EPA’s consultant modified its initial 

report issued in October 2012 in the 

revised report issued in February 2013, 

purportedly to account for an alleged 

change in urea prices. However, the 

February 2013 report cites the very same 

source for current urea prices as the 

October 2012 report. Compare Andover 

Report (Oct. 23, 2012) at 7. n.23, EPA 

docket cite EPA–R08–OAR–2012–0026– 

0081, with Andover Report (Feb. 7, 

2013) at 7 n.22, EPA docket cite EPA– 

R08–OAR–2012–0026–0086. Both 

reports cite the same 10/12/2012 email 

from Doug Kirk of Fuel Tech. The 

additional 10/15/2012 email from 

Jennifer Zagorsky of Potash Corp that is 

cited in the October report is deleted 

from the February report. There is no 

explanation for the change. 

Moreover, urea prices are relevant to 

operating costs for SNCR but are not 

relevant to SCR. If the State’s urea prices 

were too low, that would mean the State 

had underestimated the cost of SNCR, 

which is what EPA claims in its 

proposal. 78 FR 34748. Such an 

underestimate would have no material 

impact on the State’s BART 

determination and thus provides no 

basis for EPA’s disapproval. Once again, 

this is a fact that in retrospect supports 

the State’s BART decision, rather than 

demonstrating it to be arbitrary. If 

Wyoming’s estimate of the cost of SNCR 

should have been higher, as EPA 

maintains, the higher cost would tend to 

add further support for rejecting 

SNCR—the more expensive a control 

technology, the stronger the reason to 

reject it as BART. So if EPA is correct 

in claiming the State’s assumed urea 

price was too low, it is incorrect in 

claiming this made a difference in the 

State’s BART determination. A mistake 

in a cost assumption, if there was a 

mistake, is not a per se reason to reject 

a BART determination. Such a mistake 

would help support disapproval of a 

cost analysis and resulting BART 

determination only if it overstated costs 

in a material way and thus tended to 

make a technology appear significantly 

more costly than it actually would be. 

If the State rejected SNCR based on an 

allegedly too-low cost of urea, perhaps 

EPA could argue that the State was 

wrong in rejecting SNCR. But EPA 

makes no such argument. It asserts only 

that its consultant’s urea price is 

different from the State’s price. As 

explained above respecting SNCR, to 

succeed in arguing that the State’s 

rejection of SNCR justifies disapproval 

of the State’s BART, EPA would, at a 

minimum, have to show that the State 

was arbitrary and capricious. The choice 

of BART is the prerogative of the State, 

and the State is charged with evaluating 

and balancing all five BART factors and 

deciding how much weight to give to 

each factor. EPA may not disapprove the 

State’s judgment merely because it 

disagrees with the State on what is a 

reasonable cost, or how the State 

balanced costs with other BART factors. 

In fact, nothing in EPA’s proposal takes 

issue with how Wyoming weighed or 

balanced the BART factors, or with the 

State’s judgment regarding the terms of 

the settlement agreement on which the 

State’s BART determination for Laramie 

River was based. EPA’s complaint is not 

with the State’s judgment in applying 

the BART factors. Rather, it is that the 

State used information with which EPA 

disagrees. But that cannot justify 

disapproval of the State’s cost analysis 

or BART determination. 

Another commenter argued that the 

information EPA relied on to conclude 

that urea market prices have increased 

is itself outdated, noting that the report 

EPA cited as support for its urea price 

claim was completed October 23, 2012, 

and relied on vendor emails from Fuel 

Tech and PotashCorp dated October 12, 

2012 and October 15, 2012, respectively, 

to conclude that urea cost 

approximately $650 per ton. The 

commenter pointed out that the same 

report recognizes that ‘‘there has been 

significant variability in [urea] cost,’’ 

and added that since the date of that 

report, urea prices have continued to 

vary significantly, falling by roughly 50 

percent.215 The commenter noted that in 

its February 2013 revised cost analyses, 

EPA acknowledged the beginning of the 

price decrease, pegging urea costs at 

$450 per ton. The commenter added 

that urea prices are today far closer to 

Wyoming’s price assumptions than 

EPA’s, which commenter stated were 

among the highest prices for urea in the 

last four years. Therefore, the 

commenter asserted, even if changes in 

commodity prices following SIP 

submission were a valid basis for 

disapproving SIP analyses that relied on 

prices at the time of SIP development, 

the EPA is factually mistaken to claim 

that Wyoming unreasonably 

underestimated urea prices; rather, the 

EPA has unreasonably overestimated 

urea prices by supporting its analysis 

with an abnormally high price that is 

not reflective of the current market. 

Response: We agree that a change in 

the market price of urea, in and of itself, 

may have not provided EPA sufficient 

grounds for rejecting the State’s SNCR 

analysis. However, we identified a 

number of deficiencies in our proposed 

rule, that when taken collectively, led 

EPA to conclude that Wyoming’s 

consideration of the costs of compliance 

and visibility improvement for the EGUs 

was inadequate and did not properly 

follow the requirements in the BART 

Guidelines and statutory requirements. 

78 FR 34748. Therefore, regardless of 

the market price of urea, EPA would 

have reached the same conclusion. 

Also, regardless of the cost of urea, 

EPA found material errors with the 

State’s cost analyses for SNCR that 

required that we revise the analysis. In 

particular, as described in some detail 

in response to other comments, the State 

significantly overestimated the ability of 

SNCR to reduce NOX at Laramie River 

Station. There, the State assumed that 

SNCR would reduce NOX by 48%. In 

response to comments above, EPA has 

definitively established, using 

information from a number sources, 

including Basin Electric’s own 

consultant, as well as a major SNCR 

supplier, that SNCR cannot approach 

this level of control in the case of 

Laramie River Station. As such, it was 

appropriate, if not obligatory, for EPA to 

revisit the SNCR analysis for Laramie 

River Station. 

Finally, today we are providing 

updated SNCR cost analyses in order to 

address information provided by 

various commenters. Because we have 

taken into consideration input from a 

number of commenters when revising 

costs, we believe that they represent the 

most informed and robust costs for 

SNCR presented yet. In particular, we 

have revised the costs for Laramie River 

to reflect high furnace temperatures and 

low reagent utilization (a factor not 

considered in Wyoming’s analysis). And 

we have also updated the SNCR costs to 

reflect the most recently available cost 

of reagent as delivered to Wyoming. Our 

analyses are consistent with our 

response on a similar comment in the 

Legal Section of this final action. 

Comment: EPA erroneously 

calculated urea costs. EPA made two 

fundamental and significant errors that 

have the effect of overstating the costs 

of SNCR, which in turn justified the 

EPA’s conclusion that SCR is cost 

effective. The errors are as follows: 

• EPA mistakenly converted pounds 

to tons in its calculation of operation 

and maintenance costs for urea. See 

EPA’s Revised Cost Analyses for Jim 

Bridger Units 1–4—Detailed 

Spreadsheet Supporting Analyses (NOXSNCR tab, rows 62–64) (Bridger Costs); 

EPA’s Revised Cost Analyses for 

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Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 5163 

Wyoming Sources—Detailed 

Spreadsheet Supporting Analyses (NOXSNCR_0 1_03 tab, rows 62–64) (EPA 

Costs). The cost formula multiplies the 

urea rate (pounds/hour) times the cost 

(dollars/ton) and divides that product 

by the source’s megawatt rating to yield 

a dollar per megawatt hour cost for urea. 

In converting pounds to tons, EPA 

mistakenly divided by 1,000, when it 

should have divided by 2,000 (the 

number of pounds in a ton). 

• EPA incorrectly calculated the 

water dilution variable for operation 

and maintenance costs in urea. See 

Bridger Costs (NOX-SNCR tab, rows 62– 

64); EPA Costs (NOX-SNCR_01_03 tab, 

rows 62–64). EPA’s cost calculation 

incorporates the wrong spreadsheet cell 

(auxiliary power cost). It should have 

instead incorporated spreadsheet cell 

for the hourly water rate in thousands 

of gallons per hour. 

Response: The reagent cost 

calculation is correct. The urea rate 

(assuming 100% urea) is multiplied by 

the cost for 50% by weight urea and is 

multiplied by 2 (to account for the fact 

that the cost is for 50% by weight urea) 

and then divided by 2000 (for the tons 

to pounds conversion). The effect is to 

divide by 1000, which is the equation 

shown. Commenter is correct that there 

was an error in the dilution water cost 

calculation. The error has been 

corrected in EPA’s revised cost 

estimates. The error has negligible 

impact on the estimated cost of SNCR. 

Comment: EPA asserts that it was an 

error for Wyoming to evaluate SNCR 

using a controlled emission rate of 0.12 

lb/MMBtu, which is about a 48% 

reduction from 0.23 lb/MMBtu (the rate 

without new LNB and OFA). 78 FR 

34748. EPA claims that after combustion 

controls reduce emissions to 0.19 lb/

MMBtu, SNCR can achieve only a 20% 

further reduction, to 0.15lb/MMBtu. Id., 

citing a Fuel Tech vendor report. EPA 

declined to accept Wyoming’s 

conclusion that SNCR would cut 

emissions by 20% to 30%. Id. 

This conflicts with EPA’s findings in 

the North Dakota FIP. 77 FR 20898. EPA 

found that SNCR plus LNB and SOFA 

at Coal Creek Station Units 1 and 2 

could reduce NOX from a baseline of 

0.22 lb/MMBtu to 0.115 lb/MMBtu, 

which is a 48% reduction. EPA 

explained that after combustion controls 

reduced emissions to a degree, SNCR by 

itself would cut emissions another 25%, 

despite the facility’s claim that SNCR 

would achieve only a 20% reduction. 

Id., citing a Fuel Tech report. 

Response: EPA does not dispute that 

SNCR in combination with combustion 

controls can reduce NOX by 48% in 

some cases. As described in our 

response to other comments, EPA does 

not agree that 48% reduction of NOX is 

possible at Laramie River Station using 

SNCR alone. 

Comment: We agree with EPA that on 

an annual basis SCR can achieve 

emission rates of 0.05 lb/MMBtu or 

lower. We recommend that EPA 

consider that some coal-fired EGUs are 

achieving lower emissions; e.g., our 

search of the CAMD database found 

seven conventional coal-fired EGUs 

averaging 0.04 lb/MMBtu or lower on an 

annual basis in 2012. Unlike SNCR, for 

SCR the ability to achieve low NOX

emissions is less a function of boiler 

characteristics and more a function of 

SCR design; it is generally accepted that 

SCR can reduce NOX emissions by 80– 

90+%. However, the average control 

efficiency assumed by EPA for all 

Wyoming EGUs was 75% (74% median 

value). 

The efficiency of NOX removal is 

determined primarily by the amount of 

catalyst used, as pointed out by Hitachi 

in an email from Hitachi to EPA Region 

9 regarding SCR at the Navajo 

Generating Station. In response to a 

question from the EPA on SCR NOX

performance guarantee, Hitachi replied 

that a 3 plus 1 SCR design could be 

designed to guarantee NOX emissions of 

0.05 lb/MMBtu on a 30-day rolling 

average. However, Hitachi also stated 

that the utility and their engineer need 

to determine what margin needs to be 

applied to insure the unit is capable of 

achieving less than the permit level on 

a 30-day rolling average. The EPA stated 

that in an engineering study performed 

by Sargent & Lundy that with a NOX

permit limit between 0.07 and 0.08 lb/ 

MMBtu, the SCR would be designed for 

0.05 lb/MMBtu. The difference between 

0.05 and 0.07 is the margin necessary 

for compliance. By underestimating the 

efficiency of SCR and potentially 

overestimating the efficiency of SNCR, 

EPA has overestimated the incremental 

costs for SCR. 

Response: We agree with the 

information provided by the 

commenters that SCR technology has, in 

some cases, the potential to achieve 

emissions of less 0.05 lb/MMBtu 

(annual). However, emission limits 

associated with BART do not need to 

meet the lowest emission rate achieved 

with that technology at any coal-fired 

power plant. The RHR provides that: 

‘‘The determination of BART must be 

based on an analysis of the best system 

of continuous emission control 

technology available and associated 

emission reductions achievable for each 

BART-eligible source that is subject to 

BART.’’ 40 CFR 51.308(e)(1)(ii)(A). 

In determining the controlled 

emission level, EPA must consider 

emission rates that are practically 

achievable in light of routine variations 

in operation and understanding that the 

SCR must be designed to maintain 

emissions below the required limit. 

SCRs in the U.S. are typically either 2 

plus 1, or 3 plus 1 systems, with two or 

three initially full catalyst layers plus a 

spare layer for future catalyst additions. 

EPA is not aware of, nor has commenter 

provided information for, any 4 plus 1 

SCR systems operating on coal-fired 

utility boilers. Therefore, EPA would 

favor more commonly used 2 plus 1 or 

3 plus 1 SCR designs rather than the 4 

plus 1 system described in commenter’s 

citation from Hitachi. 

Additionally, the BART Guidelines 

state that: ‘‘[i]n assessing the capability 

of the control alternative, latitude exists 

to consider special circumstances 

pertinent to the specific source under 

review, or regarding the prior 

application of the control alternative’’ 

(40 CFR Part 51, Appendix Y, section 

IV.D.3) and that ‘‘[t]o complete the 

BART process, you must establish 

enforceable emission limits that reflect 

the BART requirements’’. (40 CFR Part 

51, Appendix Y, section V). The fivefactor BART analysis described in the 

Guidelines is a case-by-case analysis 

that considers site-specific factors in 

assessing the best technology for 

continuous emission controls. After a 

technology is determined as BART, the 

BART Guidelines require establishment 

of an emission limit that reflects the 

BART requirements, but does not 

specify that the emission limit must 

represent the maximum level of control 

achieved by the technology selected as 

BART. 

While the BART Guidelines and the 

RHR do not preclude selection of the 

maximum level of control achieved by 

a given technology as BART, the 

emission limit set to reflect BART must 

be determined based on a consideration 

and weighting of the five statutory 

BART factors. Therefore, limits set as 

BACT during PSD review, or emission 

rates achieved from the operation of 

individual facilities under an emissions 

trading program (e.g., CAA Interstate 

Rule) may provide important 

information, but should not be 

construed to automatically represent the 

most appropriate BART limit for a given 

technology. 

As noted in our response to other 

comments, EPA does not believe that we 

have overestimated the performance of 

SNCR, nor does EPA believe that the 

performance of SCR has been 

underestimated. 

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5164 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

Comment: EPA’s errors in calculating 

SCR costs resulted in significantly 

skewed cost-effectiveness 

determinations for every unit analyzed. 

EPA overstated the costs per ton of SCR 

by between 33 and 99 percent. Although 

even EPA’s cost estimates for SCR are 

within the range that the EPA 

previously has found reasonable, the 

revised cost analyses correcting what 

the commenter believes are EPA errors 

make it clear that SCR is cost effective 

for every Wyoming EGU. 

Response: Commenter’s assertion that 

EPA’s costs are too high is largely based 

upon disagreement over the retrofit 

factors used, EPA’s inclusion of a 

provision for taxes and insurance, and 

disagreement with use of 7% interest in 

determining the capital recovery factor. 

EPA has responded to each of these 

issues in other comment responses and 

has developed revised cost estimates 

that will incorporate changes where 

EPA believes the changes are warranted. 

Comment: Wyoming has 

overestimated the cost of SCR. Wyoming 

has not provided justification or 

documentation for their cost estimates. 

We (the commenter) were not provided 

with any vendor estimates or bids, and 

Wyoming did not use the CCM, as 

recommended by the BART Guidelines. 

For example, the cost estimates used by 

Wyoming and EPA contained AFUDC, 

which is not allowed by the CCM and 

has been rejected by EPA Region 8 in 

other analyses. As a result, total capital 

costs estimated by Wyoming for SCR 

exceeded $300/kW at ten of the fifteen 

EGUs evaluated. EPA has compiled a 

graphic presentation of SCR capital 

costs adjusted to 2009 dollars. The EPA 

data confirm that SCR capital costs 

typically range from $73–$243/kW. 

Wyoming has not demonstrated unique 

features for the Wyoming EGUs that 

would justify cost estimates so much 

higher than the range for the industry. 

Response: We agree that in some cases 

Wyoming has overestimated the cost of 

SCR. In order to address the cost 

analysis deficiencies noted by the 

commenter, EPA has performed revised 

cost analyses for EGUs where the cost of 

SCR is pertinent. In our revised cost 

analyses, we have followed the structure 

of the CCM, though we have used the 

IPM cost models to estimate direct 

capital costs and operating and 

maintenance (O&M) costs. 

3. Consideration of the Five Factors 

Comment: We received numerous 

comments that the State followed the 

requirements of the RHR and CAA, and 

simply did not come to the same 

conclusions as EPA. Commenters stated 

that Wyoming’s BART determinations 

were based on a consideration of all five 

BART factors and that the State weighed 

each factor appropriately. 

Response: We disagree with this 

comment. As discussed in detail in 

section VII.C.3.a of our proposed 

rulemaking, the EPA identified 

numerous issues and errors with the 

State’s cost analyses, including the fact 

that the State underestimated the cost of 

SNCR and overestimated the cost of 

SCR; the State overestimated the 

emission reductions from SNCR; the 

State underestimated the control 

efficiency of SCR; the State 

overestimated the capital costs for SCR; 

and the State allowed for some costs not 

allowed by the CCM and thus their cost 

analyses did not meet the requirements 

of the RHR. 78 FR 34748. 

Likewise, for the visibility 

improvement modeling, EPA discussed 

in detail in section VII.C.3.b of our 

proposed rulemaking why the State’s 

visibility modeling did not meet the 

requirements of the RHR (78 FR 34749). 

As stated in our proposed rulemaking, 

Wyoming did not consider the visibility 

improvement associated with SNCR, 

which is clearly in conflict with the 

requirements set forth in section 

169A(g)(2) of the CAA, as well as in the 

implementing regulations, which 

require that states take into 

consideration ‘‘the degree of 

improvement in visibility which may 

reasonably be anticipated to result from 

the use of such technology.’’ In 

addition, it was not possible for EPA, or 

any other party, to ascertain the 

visibility improvement that would 

result from the installation of the 

various NOX control options because 

Wyoming modeled the emission 

reductions for multiple pollutants 

together in its SIP. Finally, Wyoming 

did not establish baseline emission rates 

used for modeling in a manner 

consistent with BART Guidelines. That 

is, Wyoming did not use ‘‘the 24-hour 

average actual emission rate from the 

highest emitting day of the 

meteorological period modeled (for the 

pre-control scenario).’’ 70 FR 39170. 

Instead, Wyoming modeled baseline 

emission rates reflective of permitted 

emission limits, leading to both an 

underestimation, and in some cases, 

overestimation of visibility impacts. 

Therefore, contrary to the commenters 

claim, today’s action is the result of 

Wyoming’s failure to meet certain 

statutory and regulatory requirements, 

and not a simple matter of the State and 

EPA arriving at different conclusions. 

Comment: Wyoming’s BART NOX

determinations for the Naughton power 

plant further demonstrate Wyoming’s 

consideration and balancing of all five 

factors, including visibility 

improvement, and its individualized 

consideration for each unit. For 

Naughton Units 1 and 2, Wyoming 

found that costs of compliance (total 

capital costs and cost effectiveness), 

power losses (energy impacts) caused by 

post-combustion NOX controls, 

environmental considerations related to 

chemical reagents used with postcombustion NOX controls (non-air 

quality environmental impacts), and 

visibility improvement information 

indicated that LNBs and OFA are BART 

NOX. However, for Naughton Unit 3, 

based upon its much greater ‘‘visibility 

improvement’’, Wyoming determined 

that SCR is BART NOX. Wyoming’s 

BART NOX analyses across the 

Naughton Plant’s three units 

demonstrate Wyoming’s consideration 

and weighing of all five BART factors, 

including the decision to require 

different levels of BART NOX controls 

across various units at the same plant 

when Wyoming determined that the 

visibility improvements and other 

factors at one unit justified more 

stringent control. This example is yet 

one more indication, contrary to EPA’s 

assertions, that Wyoming did 

adequately consider ‘‘visibility 

improvement’’ information in each of its 

BART determinations, including 

Wyoming deciding in its discretion the 

‘‘weight and significance’’ appropriate 

for each BART factor at each BART unit. 

Response: We disagree with the 

commenter’s assertion that the State’s 

determination for the Naughton units 

shows how the State considered all five 

factors when the information that the 

State was relying on was not accurate as 

pointed out in our response above. 

Comment: PacifiCorp submitted its 

BART studies to Wyoming in 2007, and 

the State completed its BART analyses 

during 2008. At that time the remaining 

useful life of all PacifiCorp BART units 

was considered to be at least 20 years. 

Primarily due to EPA’s delays in dealing 

with the Wyoming Regional Haze SIP, 

this assumed twenty-year life span is no 

longer a valid basis for certain units. 

EPA now must take into account the 

current useful life of the units, rather 

than the useful life assumed under 

Wyoming’s BART analyses completed at 

a different point in time. Dave Johnston 

Unit 3’s current depreciable life ends in 

2027 and the life for Naughton Units 1 

and 2 ends in 2029. 

As a practical matter, the SCRs 

required under the regional haze FIP at 

Dave Johnston Unit 3 and Naughton 

Units 1 and 2 could not be installed 

until shortly before the end of 2018, due 

to the regulatory processes that apply to 

PacifiCorp’s major investment 

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Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 5165 

216Andover Technology Partners, ‘‘Cost of NOX

Controls on Wyoming EGUs’’, October 28, 2013; 

Wyoming EGU BART and Reasonable Progress 

Costs—10/28/2013; Wyoming EGU BART and 

Reasonable Progress Costs for Jim Bridger—10/28/ 

2013. 

decisions, as well as the associated 

permitting and competitive 

procurement timelines. At that time, the 

useful life for Dave Johnston Unit 3 will 

be nine years, and for Naughton Unit 1 

and 2 eleven years. EPA must use these 

shorter useful lives in its BART 

analyses. Taking into consideration the 

remaining useful lives of these 

particular BART units clearly 

demonstrates that EPA’s current 

assessed cost effectiveness conclusions 

(whether using the Andover Report 

costs or PacifiCorp’s updated 

information) do not support the 

installation of SCR on these units 

because they are not cost effective. To 

the extent EPA needs to include firm 

retirement dates commensurate with the 

depreciable lives for purposes of 

finalizing the regional haze FIP, then 

PacifiCorp requests that EPA do so. 

Response: We agree in part. However, 

because of our revised cost and 

visibility analyses, and our conclusions 

regarding BART that stem from those 

analyses, the comment is no longer 

pertinent to all of the units in question. 

Using a remaining useful life of 20 

years, our revised analysis for Naughton 

Unit 1 shows that the cost effectiveness 

of new LNBs with OFA and SCR is 

$3,109/ton, while the incremental cost 

effectiveness is $10,384/ton. The 

visibility improvement associated with 

new LNBs with OFA and SCR is 0.33 

deciviews. Similarly, using a remaining 

useful life of 20 years, our revised 

analysis for Naughton Unit 2 shows that 

the cost effectiveness of new LNBs with 

OFA and SCR is $2,566/ton, while the 

incremental cost effectiveness is $8,440/ 

ton. The visibility improvement 

associated with new LNBs with OFA 

and SCR is 0.42 deciviews. Given these 

costs and visibility improvements, taken 

along with the other BART factors, we 

no longer find that SCR is warranted for 

Naughton Units 1 or 2, even assuming 

a longer remaining useful life. 

Therefore, because the commenter 

suggested alternative control options in 

lieu of the proposed SCR, which we 

would otherwise not require, the 

comment is no longer pertinent to these 

two units. However, as described below, 

it remains relevant to Dave Johnston 

Unit 3. 

Using a remaining useful life of 20 

years, our revised analysis for Dave 

Johnston Unit 3 shows that the cost 

effectiveness of LNBs with OFA and 

SCR is $2,635/ton, while the 

incremental cost effectiveness is $7,583/ 

ton. The visibility improvement 

associated with new LNBs with OFA 

and SCR is 0.51 deciviews. Given these 

costs and visibility improvement, taken 

along with the other BART factors, we 

continue to find that SCR would be 

warranted for Dave Johnston Unit 3. 

However, using a remaining useful life 

of 9 years, as identified by PacifiCorp, 

our analysis shows that the cost 

effectiveness of LNBs with OFA and 

SCR is $3,742/ton, while the 

incremental cost effectiveness is 

$11,781/ton. Given the costs that result 

from the shorter remaining useful life, 

along with other BART factors, we find 

that SCR is not warranted. As a result, 

we find that combustion controls (LNBs) 

and an earlier retirement date are BART 

for Dave Johnston Unit 3. 

We note that depreciable life is the 

result of financial accounting rules, 

such as for tax purposes, and is 

determined by capital investments in 

the plant and associated accounting 

rules for the timing of depreciation of 

those capital investments. As a result, 

the depreciable life is often shorter than 

the economic life of the facility. 

Economic life, which is the actual 

expected viable life of the facility, is the 

key consideration in regard to the 

remaining useful life (one of the five 

BART factors). As a result, depreciable 

life is not relevant to a BART analysis 

unless the depreciable life that results 

from a capital investment for BART is 

longer than the economic life of the 

facility, in which case asset impairment 

charges could result at the end of the 

economic life. Nonetheless, we 

understand PacifiCorp’s comment as 

meaning that, for financial reasons, they 

would prefer to shutdown the units on 

an accelerated schedule in lieu of 

installing SCR. 

Finally, while PacifiCorp has 

presented revised cost information 

along with their comments, we have not 

accepted these costs without 

examination. As described in other 

responses, while allowing some of the 

costs suggested by PacifiCorp, we have 

not allowed others. More information 

regarding our cost analyses for the units 

in question can be found in the cost 

report located in the docket.216

Comment: In its proposed rule, the 

EPA found that the limits and 

technologies mandated in the rule are 

cost effective based on amortizing those 

costs over a 20 year period. Here, the 

Agency’s cost modeling is seriously 

flawed as many of the units subject to 

the new rule have remaining lives 

significantly less than 20 years. For 

example, Dave Johnston has a remaining 

life of only 14 years and Naughton 16 

years. Amortizing the larger investment 

required by the FIP over these shorter 

lives would cause rates to go up even 

more, casting doubt on the veracity of 

the EPA’s conclusion that the FIP is cost 

effective. 

Response: See response above. We 

note, however, that we are using the 

remaining useful life periods as 

presented by PacifiCorp in the comment 

above for Dave Johnston Unit 3, which 

differ from this commenter’s numbers 

for remaining useful life. 

Comment: We received comments 

that the State considered the energy and 

non-air quality environmental impacts 

of compliance when developing the 

State’s plan. The commenters went on 

to say that it is not apparent that EPA 

addressed the energy and non-air 

quality impacts in their analyses. 

Response: We disagree with this 

comment. Throughout our proposed 

rulemaking, we consistently 

acknowledged that we are proposing to 

accept the State’s energy and non-air 

quality impacts analysis (e.g. 78 FR 

34759). In the State analyses for all 

BART sources, it states that the energy 

and non-air quality impacts do not 

preclude the selection of any of the 

control technologies the evaluated for 

the BART sources. In weighing all of the 

BART factors ourselves, we agree with 

this conclusion and adopt it as our 

assessment of the energy and non-air 

quality impacts. 

Comment: There are three types of 

energy impacts that should be 

considered. These include the energy 

associated with operating the controls, 

the energy that must be provided when 

the unit is removed from service in 

order to install the controls, and most 

importantly to Wyoming and its 

citizens, the energy that must be 

replaced when the emissions controls 

prescribed for a given unit are not 

economically justifiable and result in 

accelerated unit retirements and 

replacements. 

The latter scenario is of particular 

concern because the EPA has now 

proposed SCR controls for PacifiCorp’s 

Naughton Unit 1, Naughton Unit 2 and 

Dave Johnston Unit 3. Unlike the 

Wyoming SIP, the EPA’s FIP requires 

controls that are not expected to be 

justifiable and would result in 

accelerated unit retirements and 

replacements, potential natural gas 

conversions, and the associated costs 

and socio-economic impacts of 

removing major coal-fueled generation 

resources from service in areas of 

Wyoming that rely heavily on these 

facilities. 

Response: The commenter raises 

concerns about energy impacts, 

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5166 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

specifically: The energy associated with 

operating the controls, the energy that 

must be replaced when the unit is taken 

out of service, and the energy that must 

be supplied if the unit is retired in lieu 

of addition of controls. The energy 

associated with operating the controls 

are accounted for in the variable 

operating cost of SNCR and SCR. Most 

of the construction occurs with the unit 

operating, but the unit must be shut 

down when ductwork tie-ins are made 

to the SCR. Regarding replacement 

energy when the unit is taken out of 

service, the generation units have 

periodic outages of several weeks for 

major maintenance items, such as 

turbine overhaul where there is 

adequate time to make the tie-ins for the 

equipment. It is reasonable to assume 

that facility owners would schedule 

outages for the SNCR or SCR retrofits 

during periods when other maintenance 

is being performed that requires the unit 

to be out of service, and this is what is 

commonly done in practice. EPA has 

allowed five years after the final rule to 

meet the emission limits, which should 

provide companies ample opportunity 

to schedule retrofit activities during a 

normally scheduled outage. As a result, 

retrofit of NOX controls would not have 

a significant impact on the energy 

production of the generating unit. 

As for the energy that must be 

replaced if a unit is retired, the CAA 

and BART Guidelines do not explicitly 

require that this impact be taken into 

consideration as part of the non-air 

quality and energy impacts. 

Comment: EPA’s proposed approach 

is a myopic effort to focus on only one 

portion of what is supposed to be a 

multi-faceted decision. Appendix Y 

became law after notice-and-comment 

rulemaking, and states are justified in 

relying on it when crafting their regional 

haze SIPs. Indeed, EPA made clear that 

the Appendix Y guidelines ‘‘are 

designed to help States and others . . . 

determine the level of control 

technology that represents BART for 

each source.’’ 

BART determinations are composite 

decisions, with many facts and data 

from each of the five BART factors 

playing a role in the ultimate BART 

determination as decided by Wyoming. 

EPA’s proposal to pluck out a single 

BART factor (visibility improvement) as 

the sole justification for rejecting 

Wyoming’s entire NOX BART 

determination for some units is arbitrary 

and capricious because it makes a single 

factor more important than any of the 

others and also more important than the 

composite BART determination as a 

whole. EPA’s approach also disregards 

each of the five BART factors as 

Wyoming evaluated them and ignores 

the ‘‘weight and significance’’ of each 

factor alone, and in combination with 

the others, as Wyoming determined in 

its BART decisions. 

Response: We disagree with this 

comment. The commenter is not correct 

in asserting that EPA rejected the State’s 

BART determinations for certain 

sources based only on a single BART 

factor—visibility improvement. EPA’s 

rejection of the State’s BART 

determination was based on EPA’s 

consideration of all five BART factors. 

Nowhere in our notice do we indicate 

that we are rejecting the State’s BART 

determination based solely on the 

consideration of visibility improvement. 

Moreover, as noted elsewhere in these 

responses to comments, we found 

several instances in which the State’s 

analyses were inconsistent with the 

RHR and BART Guidelines, requiring 

that EPA revise the State’s analyses. 

Comment: Use of the BART 

guidelines is only required for sources 

located at electric generating facilities 

with a total capacity greater than 750 

megawatts. See 40 CFR 51.308(e)(ii)(B). 

Only three power plants in Wyoming 

met these criteria: Basin Electric’s 

Laramie River Station, PacifiCorp’s Jim 

Bridger, and PacifiCorp’s Dave Johnston 

plants. For consistency, and as a matter 

of State discretion, Wyoming went 

above and beyond the requirements by 

following the five-step process for all 

BART sources, not solely the three 

aforementioned large electric generating 

facilities. EPA should commend 

Wyoming for taking this approach, not 

use it as an excuse for invalidating the 

SIP. 

Response: We agree that the BART 

guidelines are only mandatory under 

the regional haze regulations for ‘‘fossilfuel fired power plants having a total 

generating capacity greater than 750 

megawatts.’’ 40 CFR 51.308(e)(1)(ii)(B). 

However, the fact that a state may 

deviate from the guidelines for other 

BART sources does not mean that the 

state has unfettered discretion to act 

unreasonably or inconsistently with the 

CAA and our regulations. Where the 

BART guidelines are not mandatory, a 

state must still meet the requirements of 

the CAA and our regulations. In other 

words, the State must still adopt and 

apply the best available retrofit 

technology, considering the statutory 

factors. 

Comment: Based on the erroneous 

claims that the SIP incorrectly analyzed 

costs, calculated baseline NOX

emissions, and modeled visibility 

improvement, EPA proposes a FIP for 

eight BART sources in Wyoming. For 

each of these sources, EPA proposes to 

approve all of the State’s BART NOX

analyses, except for the cost of 

compliance, baseline emissions, and 

visibility factors. In other words, EPA 

approves the State’s analyses of some 

BART factors, but not the others. 

EPA, however, does not explain how 

it weighed the five BART factors after 

substituting its cost of compliance, 

baseline emissions, and visibility 

modeling for the State’s. For example, 

for the Laramie River Station units, EPA 

reiterates its disagreement with the 

State’s analyses and shows how its 

analyses change those factors. 78 FR 

34776. But EPA does not explain how 

it analyzed those new factor conclusions 

in relation to the remaining Wyoming 

BART factors that EPA proposes to 

approve. For each of the eight BART 

units, EPA takes the same approach, 

failing to explain how it balanced the 

multiple BART factors. 

Response: We disagree with this 

comment. As stated above, EPA came to 

its conclusions on the State’s BART 

determinations based on a consideration 

of the five factors on an individual 

source basis. We considered the 

visibility benefits and costs of control 

together by weighing the costs in light 

of the predicted visibility improvement 

and the other BART factors. 

Comment: There are no threshold 

minimum acceptable cost effectiveness 

levels, nor any requirements regarding 

how much weight a state must give to 

cost factors versus other factors such as 

visibility. EPA provides no explanation 

regarding what it views as a reasonable 

cost factor, or why or how such a factor 

should be balanced with visibility 

factors. 

Response: See response above. 

Comment: EPA must consider the 

energy that must be replaced when the 

emissions controls prescribed for a 

given unit are not economically 

justifiable and result in accelerated unit 

retirements and replacements. This 

scenario is of particular concern because 

the EPA has now proposed SCR controls 

for PacifiCorp’s Naughton Unit 1, 

Naughton Unit 2 and Dave Johnston 

Unit 3. Unlike the Wyoming SIP, the 

EPA’s FIP requires controls that are not 

expected to be justifiable and would 

result in accelerated unit retirements 

and replacements, potential natural gas 

conversions, and the associated costs 

and socio-economic impacts of 

removing major coal-fueled generation 

resources from service in areas of 

Wyoming that rely heavily on these 

facilities. 

Response: As noted above, the CAA 

and BART Guidelines do not explicitly 

require that these impacts be taken into 

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Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 5167 

217Letter from Babcock & Wilcox Power 

Generation Group, Inc., to PacifiCorp Energy, page 

3, August 19, 2013. 

218Laramie River Station SNCR and SCR Cost 

Estimates, prepared for Basin Electric Power 

Cooperative by Sargent & Lundy, Table 1, page 14, 

August 26, 2013. 

consideration as part of the non-air 

quality and energy impacts. 

Comment: EPA’s assertion that 

Wyoming underestimated the ability of 

SCR to reduce NOX was arbitrary. The 

EPA cited no legal or factual support for 

its assertion (at 78 FR 34748) that SCR 

can achieve emission rates of 0.05 lb/

MMBtu or lower on an annual basis. 

EPA approved Colorado’s use of a 0.07 

lb/MMBtu annual emission rate for SCR 

at coal-fired power plants because the 

EPA explained (at 77 FR 76871, 76873) 

that rate ‘‘is within the range of actual 

emission rates demonstrated at similar 

facilities in EPA’s Clean Air Markets 

Division (CAMD) emission database.’’ 

EPA also said in that Colorado action 

that an emission rate as low as 0.05 lb/ 

MMBtu can be achieved only ‘‘in some 

cases[.]’’ In its proposed disapproval of 

Wyoming’s SIP, the EPA has not 

explained why Wyoming’s analyses are 

distinct from Colorado’s. 

Response: We disagree. In fact, the 

cost analyses submitted by both 

PacifiCorp and Basin Electric in 

comments support EPA’s assumption 

that 0.05 lb/MMBtu is achievable on an 

annual basis. PacifiCorp’s comments 

include a budgetary price estimate for 

three units from Babcock & Wilcox 

indicating an outlet NOX rate of 0.04 lb/ 

MMBtu.217 Though Babcock & Wilcox 

does not specify the averaging time 

basis of this rate, because emission rates 

are lower over longer averaging times, 

the emission rate would only be lower 

if not already expressed on an annual 

basis. Similarly, the report prepared for 

Basin Electric by Sargent & Lundy 

indicates an annual emission rate of 

0.05 lb/MMBtu for the Laramie River 

units.218 Therefore, it does not appear 

that either Sargent & Lundy or Babcock 

& Wilcox dispute whether SCR is 

capable of achieving an annual emission 

rate of 0.05 lb/MMBtu. In addition, the 

commenter has not provided any 

information to substantiate that SCR 

cannot achieve an actual annual 

emission rate of 0.05 lb/MMBtu. 

Further, as noted by other 

commenters, information in the CAMD 

database reveals that there a number of 

coal-fired EGUs retrofitted with SCR 

which are achieving actual emissions of 

0.05 lb/MMbtu or less on an annual 

basis. It is important to note that the 

commenter is questioning the annual 

emission rate achievable with SCR (0.05 

lb/MMBtu) that EPA assumed for the 

purpose of calculating cost 

effectiveness. By contrast, when 

establishing a 30-day emission limit for 

SCR, the annual rate must be adjusted 

upward to account for: (1) A margin for 

compliance, (2) a shorter averaging 

period, and (3) start-up and shutdown 

emissions. Therefore, EPA agrees that a 

30-day rolling average emission limit of 

0.07 lb/MMBtu is appropriate for SCR. 

In fact, we have approved this emission 

limit for Wyoming sources where the 

State has required the installation of 

SCR. However, we continue to find that 

it was appropriate for EPA to use the 

anticipated actual annual emission rate, 

as opposed to the allowable 30-day 

limit, in calculating cost effectiveness. 

The approach taken by EPA is 

consistent with the BART Guidelines: In 

general, for the existing sources subjectto-BART, you will estimate the 

anticipated annual emissions based 

upon actual emissions from a baseline 

period. 70 FR 39167. That is, cost 

effectiveness is more appropriately 

based on the reduction in annual 

emissions, not the change in allowable 

emissions. 

Finally, we disagree that we have 

treated Wyoming in a manner distinct 

from Colorado with regard to the control 

effectiveness of SCR. As noted by the 

commenter, in Colorado we held that 

SCR can achieve an annual emission 

rate of 0.05 lb/MMBtu. However, in 

Colorado we also held that it was 

unlikely that an analysis performed 

around this rate would have altered the 

state’s conclusions regarding BART. For 

units where Colorado did require the 

installation of SCR (Craig Unit 2, 

Hayden Units 1 and 2, and Pawnee), 

Colorado established a 30-day rolling 

average emission limit of 0.07 to 0.08 lb/ 

MMbtu. These emission limits are 

commensurate with those established in 

Wyoming by both EPA and the State for 

SCR. 

4. Visibility Improvement 

Comment: The implementation by 

EPA of its NOX FIP is an overreach of 

its authority given the record in this 

case. In particular, as it relates to the 

Laramie River Station, EPA arbitrarily 

requires in its FIP the installation of 

SCRs to address regional haze. However, 

the facts reveal that the installation of 

SCRs is not justified because—even 

based on EPA’s own calculations—the 

visibility improvement that could be 

achieved is imperceptible. Nowhere in 

EPA’s proposed rule does it evaluate its 

FIP as achieving an improvement in 

visibility at an individual Class I area 

that meets the standard deciview 

definition, i.e., a full deciview being 

equal to the amount of visibility 

improvement that is detectable by the 

human eye. In addition, EPA failed in 

its analysis to consider the predicted 

change in visibility between control 

options and whether the incremental 

improvement for a given control is even 

perceptible. Conceding these facts, the 

imposition of a FIP to achieve an 

imperceptible improvement in visibility 

is arbitrary and capricious. 

Response: We disagree that the 

visibility improvements for Laramie 

River Station or other BART sources are 

de minimis or too small to just justify 

the expense of requiring controls. The 

BART Guidelines are clear that it is not 

necessary for the visibility improvement 

of a particular control option to be 

above the perceptible threshold. 70 FR 

39129. 

Even though the visibility 

improvement from an individual source 

may not be perceptible, it should still be 

considered in setting BART because the 

contribution to haze may be significant 

relative to other source contributions in 

the Class I area. Thus, we disagree that 

the degree of improvement should be 

contingent upon perceptibility. Failing 

to consider less-than-perceptible 

contributions to visibility impairment 

would ignore the CAA’s intent to have 

BART requirements apply to sources 

that contribute to, as well as cause, such 

impairment. The same facts apply to the 

commenter’s assertions on incremental 

visibility improvement. 

In addition, we received numerous 

general comments that controls on 

sources were not warranted because the 

visibility improvement was less than the 

perceptible amount of 1.0 deciview, to 

which we respond in the same way. 

Comment: EPA’s reliance on 

cumulative analysis of visibility 

improvement is contrary to the CAA. 

The aggregate approach EPA is 

employing in its proposed rule has been 

rejected by the D.C. Circuit. The Court 

held that an EPA requirement for a 

group consideration of visibility impacts 

was not allowed by the CAA. Instead, 

EPA must consider all five BART factors 

for each source. As the Court explained, 

with the cumulative approach, ‘‘it is 

therefore entirely possible that a source 

may be forced to spend millions of 

dollars for new technology that will 

have no appreciable visibility 

improvement.’’ 

Response: We disagree that our 

consideration of visibility improvement 

was contrary to the CAA. Here the 

commenter has conflated two separate 

issues related to cumulative visibility 

analyses. In the D.C. Circuit ruling, 

American Corn Growers Ass’n v. EPA, 

291 F.3d 1 (D.C. Cir. 2002), the issue 

was related to the cumulative visibility 

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5168 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

219The BART Guidelines do not specify that 

States must establish a BART limit for both PM10

and PM2.5. The BART Guidelines provide the 

following: ‘‘You must look at SO2, NOX, and direct 

particulate matter (PM) emissions in determining 

whether sources cause or contribute to visibility 

impairment, including both PM10 and PM2.5.’’ 

[Appendix Y to Part 51, section III.A.2.] This 

language in the BART Guidelines was intended to 

clarify to States that when determining whether a 

source is subject to BART, the modeling evaluation 

to determine the source’s impact on visibility has 

to account for both PM10 and PM2.5 emissions. 

There are several instances in which we state in 

both the preamble to the RHR, and in the BART 

Guidelines that PM10 may be used as indicator for 

PM2.5 in determining whether a source is subject to 

BART. Neither the RHR nor the BART Guidelines 

specify that states must make separate BART 

determinations for PM10 and PM2.5. Therefore, we 

disagree that we must evaluate separate limits or 

disapprove the PM BART determination for the 

Wyoming SIP on the basis that a BART 

determination for PM2.5 was not made. 

impacts from multiple sources. There, 

the court held that a source may be 

unduly required to install controls 

because of the emissions from other 

sources. By contrast, in the instance 

related to our proposed rule, the issue 

is related to the cumulative visibility 

impact to multiple Class I areas from a 

single source. Therefore, there is no 

relationship between the approach 

rejected by the D.C. Circuit Court and 

that used in our assessment of visibility 

improvement. 

Comment: EPA found that SCR 

provided only a 0.36 delta deciview 

incremental visibility improvement for 

Dave Johnston Unit 3, using EPA 

modeling, with an incremental cost of 

$7,163.00. 78 FR 34777–34778. EPA 

failed to justify in its proposed rule how 

a 0.36 delta deciview improvement, or 

approximately one-third that humanly 

detectible, justifies the tremendous cost 

of SCR. Likewise, EPA found that 

installing SNCR at Dave Johnston Unit 

4 results in an incremental 0.11 delta 

deciview improvement. The alleged 

incremental visibility benefit of 

installing SNCR at Wyodak is 0.12 delta 

deciview at an incremental cost of 

$3,725. 78 FR 34784–85. EPA provides 

no justification for requiring such 

tremendous costs for such an 

inconsequential visibility improvement 

that likely falls within CALPUFF’s 

margin of error. EPA’s modeling 

approaches are inconsistent because 

EPA has determined in other states that 

visibility improvements greater than 

those used to justify SNCR at Wyodak 

are too small or inconsequential to 

justify additional pollution controls. See 

77 FR 24794 (0.27 deciview 

improvement termed ‘‘small’’ and did 

not justify additional pollution controls 

in New York); 77 FR 11879, 11891 

(0.043 to 0.16 delta deciview 

improvements considered ‘‘very small 

additional visibility improvements’’ that 

did not justify NOX controls in 

Mississippi); 77 FR 18052, 18066 

(agreeing with Colorado’s determination 

that ‘‘low visibility improvement (under 

0.2 delta deciview)’’ did not justify SCR 

for Comanche units). Tellingly, the ‘‘low 

visibility improvements’’ that Colorado 

found at the Comanche units not to 

justify post-combustion NOX controls, 

as agreed to by EPA, were 0.17 and 0.14 

delta deciview. 77 FR 18066. In 

Montana, where EPA issued a regional 

haze FIP directly, it found that a 0.18 

delta deciview improvement to be a 

‘‘low visibility improvement’’ that ‘‘did 

not justify proposing additional 

controls’’ for SO2 on the source. 77 FR 

23988, 24012. Here, EPA’s actions 

requiring additional NOX controls based 

on little-to-no additional visibility 

improvement are arbitrary and 

capricious, especially when EPA did not 

require additional NOX controls in other 

states based on similar visibility 

improvements. This is particularly true 

in Montana where EPA had direct 

responsibility for the regional haze 

program. 

Response: As stated elsewhere in our 

response to comments, we must 

consider the five factors for each facility 

when making a BART determination. 

Even though one factor (such as 

visibility improvement) may be similar 

between two units, it must be weighed 

in the context of the other BART factors. 

In addition, as we discuss in other 

response to comments, in accordance 

with the BART Guidelines, controls may 

be warranted even in instances where 

the visibility benefit is less than 

perceptible. 

We note that, in light of comments 

submitted during the public comment 

period, we have revised our BART 

determinations for the Naughton Units 1 

and 2, the Dave Johnston Units 3 and 4, 

and Wyodak. See sections III.B and V.D 

for a discussion on our consideration of 

the BART factors and our BART 

determination for these units. 

5. PM BART Determinations 

Comment: We received comments 

that EPA’s BART determinations with 

respect to PM emissions from Wyoming 

EGUs are flawed. One commenter 

pointed out that contrary to the BART 

guidelines, EPA failed to propose BART 

limits on condensable PM and total PM 

(PM2.5 + PM10), focusing instead solely 

on filterable PM. Commenters went on 

to state that EPA underestimated the 

control effectiveness of baghouses, 

which should be able to achieve a limit 

of 0.010 lb/MMBtu or even lower, and 

thus EPA overestimated the costs 

effectiveness for baghouses. 

Response: We disagree with both 

points made in this comment. On the 

first point, the BART Guidelines do not 

explicitly require that states establish 

separate emission limits for condensable 

PM.219 However, we do recognize, by 

merit of the compliance test methods 

specified for PM (e.g. EPA Method 5B), 

that the BART emission limits in the 

Wyoming SIP only pertain to filterable 

PM. 

On the second point, the commenter 

has not provided any data or 

information to substantiate that using a 

lower limit (i.e., 0.010 lb/MMBtu) for 

baghouses would have changed the PM 

BART determinations. Given that the 

cost effectiveness for baghouses was 

generally excessively high, we do not 

expect that using a lower limit would 

have changed the BART determination. 

Using Jim Bridger Unit 1 as an example, 

an emission limit of 0.015 lb/MMBtu 

results in an emission reduction of 709 

tpy, while using an emission limit of 

0.010 lb/MMBtu results in an emission 

reduction of 829 tpy (calculated in the 

same manner as in Wyoming’s BART 

determination: 6,000 MMBtu/hr heat 

input and 7,884 hours of operation). In 

this example, the cost effectiveness of 

the new polishing fabric filter was 

$8,980/ton, and the incremental cost 

effectiveness was $16,396/ton. Given 

these costs, we have no reason to 

conclude that such a modest difference 

in the reduction (120 tpy) would lead to 

a meaningful improvement in visibility. 

This is particularly true since, on a per 

unit mass basis, PM emissions have a 

lower visibility impact than SO2 or 

NOX. A similar conclusion can be 

drawn for other EGUs where baghouses 

were considered. 

6. Incremental Costs and Visibility 

Comment: Wyoming and EPA have 

placed undue weight on incremental 

costs and incremental benefits. 

Wyoming and EPA have essentially 

based their BART and reasonable 

progress determinations on incremental 

costs and incremental benefits. (In 

almost every case, Wyoming stated that 

the average cost-effectiveness of the 

proposed BART technologies for NOX

are all reasonable.) However, in 

discussing average and incremental 

costs, EPA BART Guidelines explain: 

‘‘The average cost (total annual cost/

total annual emission reductions) for 

each may be deemed to be reasonable. 

However, the incremental cost of the 

additional emission reductions to be 

achieved may be very great. In such an 

instance, it may be inappropriate to 

choose control B, based on its high 

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incremental costs, even though its 

average cost may be considered 

reasonable.’’ Although EPA does not 

explain in its BART Guidelines what it 

considers ‘‘very great’’ and ‘‘high’’ 

incremental costs, it goes on to provide 

an example of how incremental cost is 

calculated, and explains: ‘‘The 

incremental cost of Option 1, then, is 

$20,000 per ton, 11 times the average 

cost of $1,900 per ton.’’ 

The clear implication of EPA’s advice 

in the BART Guidelines is that 

incremental costs become a deciding 

factor only if they greatly exceed 

average costs. Instead, EPA has 

determined that incremental costs only 

twice the ‘‘reasonable’’ average costs are 

excessive. In doing so, EPA ignores the 

established fact that pollution control 

costs increase exponentially with 

control efficiency, which means that 

incremental costs will always exceed 

average costs. 

Response: We disagree with most 

aspects of this comment, but do agree 

with the commenter that EPA has not 

defined what the terms ‘‘very great’’ or 

‘‘high’’ mean when pertaining to 

incremental costs. We do not agree with 

the commenter that the one of the 

examples EPA provided in 40 CFR part 

51, Appendix Y, should be interpreted 

to mean that incremental costs only 

become a deciding factor if they greatly 

exceed average costs by some magnitude 

over twice the average costs. In 

addition, incremental costs are to be 

considered within the context of the five 

factors, including average cost 

effectiveness and visibility 

improvement. Our BART 

determinations reflect the statement in 

the BART Guidelines the commenter 

referenced in that while average cost 

effectiveness may be reasonable, the 

EPA determined that the high 

incremental costs in some instances 

made the selection of more stringent 

controls not to be reasonable, when 

considered with visibility improvement. 

We discuss in each instance our 

evaluation of incremental and average 

costs and explain our conclusions. 

Comment: Incremental visibility 

improvement is not mentioned in the 

reasonable progress provisions or BART 

Guidelines, and EPA cannot create a 

new criterion for the sole purpose of 

eliminating a control option that is 

reasonably cost-effective and would 

yield a significant visibility 

improvement. If EPA is going to 

compare costs and visibility benefits, it 

must do so in a transparent and 

objective manner, and state its criteria 

for acceptance or rejection of a control 

strategy. Relatively subjective 

statements about costs being ‘‘high’’ or 

visibility improvements ‘‘small’’ are not 

sufficient to justify the decisions. 

Response: We disagree with this 

comment. The RHR states ‘‘When 

making this determination [BART Step 

5 on visibility impacts], you have 

flexibility in setting absolute thresholds, 

target levels of improvement, or de 

minimis levels since the deciview 

improvement must be weighed among 

the five factors, and you are free to 

determine the weight and significance 

to be assigned to each factor.’’ 70 FR 

39170. EPA concludes that in exercising 

its discretion, a state or EPA may 

consider the incremental degree of 

visibility improvement, which is a part 

of visibility improvement. EPA’s 

consideration of incremental visibility 

improvement in our proposed action in 

Wyoming is also consistent with EPA 

actions in other states (e.g., Kansas (76 

FR 80754), Nebraska (77 FR 40150), and 

Oregon (76 FR 38997)). In comparing 

control options and selecting one, it is 

natural to compare the visibility 

improvement (that is, to compute the 

incremental visibility improvement) for 

each option. 

Comment: EPA in some cases rejected 

the best systems of continuous emission 

reduction as BART based on a 

subjective judgment that the 

incremental costs of concededly 

superior controls are not warranted by 

the visibility benefits they yield. 

However, EPA has failed to offer any 

rationale for these cost-benefit 

determinations, let alone the increment 

threshold applied. As a result, EPA’s 

conclusions are at odds with the EPA’s 

own analysis demonstrating that 

installing the most effective controls 

will yield needed visibility 

improvements. 

EPA’s approach is inconsistent with 

the purpose of the RHR and the fivefactor BART analysis. The CAA 

identifies the elimination of humancaused visibility impairment in Class I 

areas as the purpose and required 

outcome of the haze program. 42 U.S.C. 

7491(a)(1). Congress directed states and 

the EPA to impose the best system of 

continuous emission reduction on 

BART-subject sources, and identifies 

BART as the feasible, cost-effective 

technology that produces the most 

visibility benefits. For NOX emissions at 

Wyoming EGUs, EPA’s source-specific 

BART analyses uniformly point to SCR 

plus combustion controls as the 

appropriate technology. 

To avoid this result, however, EPA 

puts the technologies that it has already 

determined are feasible and costeffective through an incremental benefit 

filter in which it assesses not just which 

control technology makes the most 

visibility improvement, but how much 

more progress it makes over the second 

best technology relative to their costs. 

EPA applies this additional filter 

without disclosing what the threshold of 

improvement over the next best 

technology or the ratio of incremental 

improvement to incremental cost has to 

be, instead simply declaring that ‘‘the 

cost effectiveness value [of SCR] is 

significantly higher than [inferior 

technology] and there is a comparatively 

small incremental visibility 

improvement over the [inferior 

technology].’’ 

If haze plans only compel installation 

of controls with lower incremental costs 

and large incremental benefits 

(whatever those might be), then it may 

be impossible to reach the goal of 

attaining natural conditions in the Class 

I areas. This is especially true for 

Wyoming, where there are many large 

pollutant sources affecting many Class I 

areas. The level of visibility 

improvement that can be achieved 

through reduction of emissions from 

any one source might always be deemed 

too small to justify the cost of controls, 

in which case we will never be able to 

eliminate that last increment of haze 

pollution because it is too small to 

justify. While EPA or states may argue 

that additional emissions reductions can 

be achieved in the future, the 

opportunity to reduce haze-causing 

emissions in initial SIPs/FIPs by 

requiring BART, as recognized and 

directed by Congress in the CAA, is the 

best chance to make significant progress 

on this pervasive pollution problem. 

EPA’s use of the incremental benefit 

analysis to eliminate the best pollutionreduction systems does not comply with 

the law. 

Response: We do not agree with this 

comment. As stated above, EPA based 

its decisions on the BART 

determinations based on a careful 

weighing of the five factors, including 

average and incremental cost 

effectiveness. Much like average cost 

effectiveness, EPA has not established a 

threshold for incremental cost 

effectiveness as each BART 

determination is an individual decision 

based on the five BART factors. In 

accordance with the BART Guidelines, 

for each BART-eligible facility, we 

considered incremental cost 

effectiveness, and when weighed with 

the other BART factors, we reasonably 

concluded that more or less stringent 

controls were not warranted. 

7. Other Comments on BART 

Comment: The majority of BART 

sources were constructed between 1962 

and 1977. They have a typical life 

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220See for example, EPA’s September 20, 1999, 

guidance, ‘‘State Implementation Plans: Policy 

Regarding Excess Emissions during Malfunctions, 

Startup and Shutdown,’’ cited in the next footnote. 

221As EPA Region 7 explained in their final 

action 76 FR 80754, 80755–6 (Dec. 27, 2011): ‘‘As 

EPA explained in the proposed notice, the Consent 

Agreements exempted periods of startup and 

shutdown for both Kansas City Power and Light and 

Westar Energy from compliance with applicable 

emission limits, which were not narrowly defined, 

and exempted periods of malfunction for Westar 

Energy. EPA proposed to disapprove the 

exemptions because they are inconsistent with the 

Clean Air Act and EPA’s September 20, 1999, 

guidance, ‘‘State Implementation Plans: Policy 

Regarding Excess Emissions during Malfunctions, 

Startup and Shutdown.’’ Steven Herman, Assistant 

Administrator for Enforcement and Compliance 

Assurance, and Robert Perciasepe, Assistant 

Administrator for Air and Radiation, ‘‘State 

Implementation Plans (SIPs): Policy Regarding 

Excess Emissions During Malfunctions, Startup, 

and Shutdown,’’ September 20, 1999; and 52 FR 

(45109 November 24, 1987). 

EPA subsequently received a letter from the State 

dated December 1, 2011, withdrawing the SSM 

provisions in the Consent Agreements in their 

entirety from the regional haze SIP. Specifically, the 

following four provisions were withdrawn from 

EPA’s consideration for approval in the regional 

haze SIP: 

1. All references to, ‘‘excluding periods of startup 

and shutdown’’ in Paragraph 23 of the Kansas City 

Power and Light Company regional haze agreement; 

2. The reference to, ‘‘excluding periods of startup, 

shutdown and malfunction’’ in footnote 1 of 

Appendix A to the Westar Energy, Inc. regional 

haze agreement; 

3. All references to, ‘‘excluding periods of startup 

and shutdown’’ in Chapter 9.3.1 of the Kansas 

regional haze SIP; 

4. And the sentence, ‘‘The Agreements between 

KDHE and the affected BART sources currently 

exclude emissions associated with startup, 

shutdowns, and malfunctions (SSM) in the agreed 

upon emission limits’’ in Chapter 9.5 of the Kansas 

regional haze SIP. 

Since the SSM provisions were withdrawn by the 

State, and are therefore no longer before EPA, 

neither EPA’s proposed disapproval of these 

exemptions, nor the comments on that proposed 

disapproval, are relevant to this final action. 

expectancy of 50–60 years. They likely 

will be retired before 2064 and replaced 

with state-of-the-art power generation 

technology and pollution control 

equipment. This will be a major factor 

in achieving the 2064 natural 

background goal for nitrate when these 

units are replaced. Thus, there is no 

need for controls on these sources now. 

Response: While the goal of the 

regional haze program is to achieve 

natural visibility conditions in all 

mandatory Class I Federal areas by 

2064, the statute explicitly calls for a 

program of reductions over time, and 

incremental reasonable progress 

towards the long-term goal. The 

requirement for states to implement 

BART applies during the first planning 

period ending in 2018 and is the first 

increment of progress. Furthermore, the 

remaining useful life of a facility is one 

of the five factors considered for BART. 

Thus, for example, if a facility has made 

a federally-enforceable commitment to 

either shut down or change fuels by a 

date certain, the shortened useful life of 

the facility is incorporated into the cost 

analysis as part of the amortization of 

total capital costs. 

Comment: Wyoming’s SIP is silent 

with respect to BART emissions limits 

during malfunctions and emergencies. 

However, EPA proposes a FIP 

requirement that: ‘‘These [BART] 

emission limitations shall apply at all 

times, including startups, shutdowns, 

emergencies, and malfunctions.’’ 77 FR 

33061. As EPA has previously noted, 

EPA’s proposed FIP requirement for 

Wyoming is not required by the RHR: 

‘‘Kansas’ inclusion of the startup, 

shutdown, and malfunction provisions 

as exemptions from the BART emission 

rates are not required elements of the 

regional haze SIPs to be developed and 

submitted by States pursuant to section 

169 of the CAA.’’ See 76 FR 52604, 

52618. EPA has also stated that ‘‘EPA’s 

disapproval of the startup, shutdown, 

and malfunction provisions . . . does 

not trigger an obligation on the part of 

EPA to issue a FIP pursuant to section 

110(c) of the CAA, 42 U.S.C. 7410(c).’’ 

Id. 

Yet, EPA proposes to impose a FIP for 

startup, shutdown, emergency, and 

malfunction emissions for Wyoming 

sources despite EPA’s prior statements 

that such exemptions do not trigger an 

EPA obligation to issue a FIP. EPA’s 

proposed action for Wyoming is 

arbitrary, unauthorized and unlawful. 

Wyoming does not agree with EPA’s 

proposal to include emergencies and 

malfunctions in 40 CFR 52.2636(c)(2). 

Permitted emission limits should reflect 

the potential-to-emit (PTE) of a 

stationary source. The PTE refers to a 

stationary source’s maximum capacity 

to emit under its physical and 

operational design. In estimating a 

source’s PTE, Wyoming has consistently 

only utilized emissions that are 

anticipated to occur on a continuous or 

regular basis under the source’s physical 

and operational design. See United 

States v. Louisiana-Pacific Corp., 682 F. 

Supp. 1141, 1158 (D. Colo. 1988). 

Emissions that occur outside of a 

source’s physical and operational design 

or, are unplanned, are not included in 

PTE estimates, and are addressed 

instead in accordance with Wyoming’s 

enforcement discretion. The Wyoming 

Supreme Court recently upheld 

Wyoming’s approach. See Sierra Club v. 

Wyoming Depart of Envtl. Quality, 251 

P.3d 310, 2011 WY 42 (Wyo. 2011). 

Therefore, Wyoming requests that EPA 

withdraw its proposed FIP provision 

addressing emergencies and 

malfunctions. 

Response: We disagree with this 

comment. The RHR states that ‘‘Section 

302(k) of the CAA requires emissions 

limits such as BART to be met on a 

continuous basis. Although this 

provision does not necessarily require 

the use of continuous emissions 

monitoring, it is important that sources 

employ techniques that ensure 

compliance on a continuous basis.’’ 70 

FR 39172. The rule goes on to state that 

‘‘[m]onitoring requirements generally 

applicable to sources, including those 

that are subject to BART, are governed 

by other regulations.’’ See, e.g., 40 CFR 

part 64 (compliance assurance 

monitoring); 40 CFR 70.6(a)(3) (periodic 

monitoring); 40 CFR 70.6(c)(1) 

(sufficiency monitoring) (70 FR 39172). 

Therefore, it is clear that the rule 

intended for BART emission limits to be 

met on a continuous basis and did not 

provide either explicitly or implicitly 

exceptions for startup, shutdown, or 

malfunction. Furthermore, it has been 

EPA’s longstanding position that SIP 

provisions generally cannot contain 

automatic exemptions for startup, 

shutdown, and malfunction.220 With 

respect to PTE, the comment does not 

identify how the arguments about PTE 

are relevant to a BART emissions limit. 

Finally, regarding claims of 

inconsistency with the final action for 

Kansas, commenter quotes from the 

proposed not the final agency action. As 

explained in the final agency action, 

EPA did not take final action on those 

portions of the Kansas submittal, the 

state withdrew them.221

Comment: The EPA’s proposed FIP 

states only that subject-to-BART sources 

must comply within five years of 

adoption of the FIP. This blanket 

schedule of compliance for FIP sources 

is contrary to the CAA. For one thing, 

by its very language, the EPA’s proposed 

FIP fails to ensure that subject-to-BART 

sources ‘‘procure, install, and operate, 

as expeditiously as practicable’’ any 

additional controls that may represent 

BART as required by the CAA. See 42 

U.S.C. 7491(b)(2)(A) and (g)(4). The EPA 

only requires that sources comply 

within five years, but does not actually 

require sources to comply with BART 

limits established in the FIP ‘‘as 

expeditiously as practicable.’’ Thus, 

EPA’s proposed FIP fails to implement 

the statute. Furthermore, simply stating 

verbatim in the FIP that ‘‘sources shall 

comply with the emission limitations 

and other requirements of this section 

within five years of the effective date of 

this rule’’ fails to give force and effect 

to the statutory requirements that 

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compliance occur as ‘‘expeditiously as 

practicable.’’ Here, the CAA is clear that 

in mandating ‘‘expeditious’’ 

compliance, FIPs must ensure that 

subject-to-BART sources comply as soon 

as possible. In this case, the EPA’s 

proposed FIP simply fails to ensure 

compliance with BART as soon as 

possible. It lacks any concrete dates by 

which subject-to-BART sources must 

comply, other than to state that sources 

must comply within the statutory 

maximum compliance date of five years. 

However, the CAA is clear that if a 

source can comply with BART before 

five years, it must comply by that earlier 

date. See 42 U.S.C. 7491(g)(4). Simply 

deferring to the five-year deadline 

undermines the Congressional intent 

behind the ‘‘as expeditiously as 

practicable’’ provision. It is notable that 

the EPA actually required ‘‘expeditious 

compliance’’ for Jim Bridger Units 3 

and 4. 

Response: We have reviewed the 

compliance dates for meeting BART 

limits that are contained in the SIP. 

Given the magnitude of the retrofits 

being undertaken, we believe that five 

years from the effective date of this final 

rule is as expeditiously as practicable. 

We note that our compliance dates for 

Jim Bridger Units 3 and 4 are based on 

the fact that those are the dates in the 

State’s SIP which we are approving for 

these two units. 

Comment: Compliance with the 

perceived dictates of the CAA need not 

be as inflexible as contemplated in the 

EPA’s proposal. By exploring and 

employing creative solutions, it is 

possible to reduce emissions to satisfy 

the CAA while ensuring reasonable 

value and more cost-effective 

expenditures for PacifiCorp’s ratepayers. 

Two recent examples of successful 

creative alternatives that will save 

ratepayers many millions of dollars 

include the recent proposals of (1) 

Public Service of New Mexico for its 

San Juan Generating Station, and (2) 

PacifiCorp regarding its Naughton Unit 

3 in Wyoming. 

Notably, the EPA’s revised 2013 

proposal for Wyoming implicates ten of 

PacifiCorp’s coal-fueled units. Given the 

number of affected PacifiCorp 

generation plants, Wyoming appears to 

be a particularly fertile ground for 

encouraging the type of alternative 

solution that satisfied the CAA with 

regard to San Juan and Naughton Unit 

3. We urge the EPA, in response to these 

comments, to signal its willingness to 

consider all feasible compliance options 

that PacifiCorp may offer (including 

those that the EPA has no authority to 

order) to provide the lowest-cost 

solution for ratepayers in achieving 

emissions reductions. 

Response: We agree with the 

commenter’s points that there is some 

flexibility under the CAA to meet the 

requirements of the RHR. As with past 

actions, EPA is willing to consider 

alternatives compliance proposals that 

are put forth. 

Comment: Wyoming’s regional haze 

program has been underway for several 

years. Under EPA’s RHR, BART controls 

were expected to be installed by the end 

of 2013. Wyoming appropriately and 

effectively developed and implemented 

a regional haze program that met the 

2013 timeline. As required by the 

Wyoming SIP, and with the one 

exception of Naughton Unit 3 which has 

a deadline of 2014, PacifiCorp has fully 

implemented Wyoming’s BART 

requirements for its Wyoming BART 

units. As a result, in 2013 alone, there 

will be 76,000 fewer tons of visibility 

impairing pollutants emitted by 

PacifiCorp BART units than was emitted 

in 2004. 

Had Wyoming waited for EPA’s final 

FIP, none of these reductions would 

have occurred to date. In other words, 

the Wyoming SIP required regional haze 

reductions to begin earlier and extend 

over a longer period of time than EPA’s 

FIP. It is striking to note that from 2005– 

2021 the State’s regional haze program 

will have removed 243,000 tons more 

NOX from PacifiCorp’s Wyoming 

facilities than EPA’s proposed FIP. 

In 2022, the EPA’s FIP begins 

providing an annual benefit of 5,100 

tons per year. Ironically this benefit 

only lasts for six years, when the units 

at which EPA’s proposed FIP requires 

more stringent controls are retired. By 

2027, the Wyoming Regional Haze SIP 

will have removed over 210,000 more 

tons of NOX from PacifiCorp’s units 

than the EPA’s proposed FIP, with a 

significantly lower cost (more than $300 

million less in capital) and will require 

significantly lower expenditures in 

operation and maintenance between 

2022 and 2027. 

Response: We acknowledge that the 

emission reductions already achieved 

by PacifiCorp’s Wyoming facilities are 

substantial. However, the emission 

reductions already achieved at the 

PacifiCorp facilities do not release EPA 

from its obligation under the CAA to 

review Wyoming’s SIP, or to promulgate 

a FIP where we find that the SIP fails 

to comply with the CAA or RHR. 

We disagree that the SIP will result in 

greater emission reductions than the 

FIP. As discussed in section III.B, in 

response to comments received during 

the public comment period, we have 

made several changes to our proposed 

BART determinations for the PacifiCorp 

units. Even so, our final rule today 

continues to achieve greater emission 

reductions than the Wyoming SIP for 

the PacifiCorp units. For Wyodak, our 

BART determination (new LNBs with 

OFA and SCR) results in an additional 

2,496 tons per year when compared to 

the SIP. For Dave Johnston Unit 3, 

though PacifiCorp has the option to shut 

down the unit in 2027, our BART 

determination (new LNBs with OFA and 

SCR) results in an additional 1,597 tons 

per year when compared to SIP. Clearly, 

even though we are no longer requiring 

some of the BART controls which we 

proposed, the FIP achieves greater 

emission reductions than the SIP at any 

point in time. Regardless, the BART 

determination for any BART source is 

founded on a consideration of the 

statutory BART factors, and not a 

comparison of overall reductions 

achieved between a federal and state 

plan. 

D. BART Sources 

1. Basin Electric Laramie River Station 

Units 1–3 

a. General Comments 

Comment: We received numerous 

comments expressing concern over the 

economic impact our proposed FIP 

would have for customers of Basin 

Electric, and the commenters urged us 

to approve the State’s regional haze SIP. 

The commenters went on to point out 

that Basin Electric is a non-profit 

electric cooperative that must pass costs 

on directly to consumers. One 

commenter noted that the projected cost 

to install SCR for each of the three units 

at Laramie River will be $200 million 

for Western Minnesota and Missouri 

Energy Services members. If that cost is 

spread over a 10-year period, the cost 

would be $110 million a year, which 

relates to an increase in electric rates of 

8 percent. 

Response: In considering the costs of 

compliance, the BART Guidelines 

instruct states and EPA to evaluate 

several metrics, focusing specifically on 

average cost-effectiveness and 

incremental cost-effectiveness, not total 

capital cost or total annual cost. EPA 

has found that the average and 

incremental cost-effectiveness of SCR is 

reasonable for all three units at Laramie 

River. While the BART Guidelines 

suggest that total capital cost and total 

annual cost, as well as incidental 

increases in prices to consumers, can be 

considered as part of an affordability 

demonstration, Basin Electric did not 

provide the necessary detailed 

information to suggest that installing 

SCR at Laramie River would be 

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222Wyoming EGU BART and Reasonable Progress 

Costs—10/2013. 

223Andover Technology Partners, ‘‘Cost of NOX

Controls on Wyoming EGUs’’, October 28, 2013. 

unaffordable, either for the cooperative 

or its rate payers. Consequently, we 

believe that our analysis of the costs of 

control, which focused on costeffectiveness, was appropriate. 

Comment: We received numerous 

comments that EPA’s FIP would result 

in additional costs of $600–$700 million 

for the owners of Laramie River Station 

with no perceptible visibility 

improvement. 

Response: See the response above. We 

have addressed the issue of perceptible 

visibility improvement in section V.C.4. 

As explained in the introductory section 

and elsewhere, the visibility 

improvements from controls at Laramie 

River are significant, even when 

considered on a unit by unit basis. 

b. NOX BART Determination 

Comment: One commenter provided a 

spreadsheet with cost calculations for 

each of the affected Laramie River units. 

Response: EPA has reviewed the 

spreadsheet.222 The major difference in 

calculations relates to selection of 

retrofit factor and cost of property taxes 

and insurance (excluded by 

commenter). Commenter indicates that 

all facilities have a retrofit difficulty of 

1.0. EPA disagrees and has provided our 

reasons for retrofit factors in other 

comments. In addition, for certain units 

where we have incorporated new cost 

information submitted by the facility 

owner’s during the comment period, we 

are no longer applying a retrofit factor. 

Finally, property taxes and insurance 

costs should be included, but only to 

the extent that they are actually 

realized. See details in the cost report 

included in the docket.223

Comment: EPA’s decision to change 

its initial NOX BART proposal for 

Laramie River Station Units 1–3 from 

SNCR to instead propose requiring SCR 

is well-supported by EPA’s analysis. 

When site-specific information is 

appropriately considered, the costs of 

SCR at Laramie River Station are even 

lower than EPA estimated. EPA used a 

‘‘social interest rate’’ of 7 percent in its 

analysis when the plant’s owner used an 

interest rate of only 6 percent; the EPA 

accepted the owner’s claimed costs of 

new LNBs with OFA (after subtracting 

disallowed costs), even though other 

data submitted by the company 

demonstrated lower costs for these 

combustion controls; and the EPA’s cost 

estimates assumed unreasonably high 

auxiliary power costs of $0.06/kilowatt 

hour (‘‘kWhr’’), when even the owner 

assumed an auxiliary power cost of 

$0.015/kWhr in its cost-effectiveness 

analyses. Making the suggested cost 

changes to the analysis would result in 

cost effectiveness values ranging from 

$3,244/ton to $3,532/ton, as opposed to 

the EPA’s values ranging from $3,589/

ton to $3,903/ton. The substantial 

visibility benefits afforded by SCR on 

Laramie River Units 1–3 also justify a 

finding that SCR is BART on these 

units. The costs and visibility 

improvements are consistent with what 

other states in their SIP or EPA in a FIP 

have found reasonable for BART 

controls. 

Response: EPA has addressed each of 

the issues raised by the commenter in 

other responses. EPA has provided 

revised cost estimates based upon input 

and consideration of all commenters. 

Comment: The Sargent & Lundy 

Evaluation demonstrates that the costs 

of installing SCR at Laramie River 

Station are excessive and supports 

Wyoming’s determination that OFA 

plus LNB constitutes BART. In response 

to EPA’s proposed SIP disapproval and 

FIP, Basin Electric requested that 

Sargent & Lundy prepare detailed and 

site-specific cost estimates for 

installation and operation of SNCR and 

SCR at the Laramie River Station. 

Sargent & Lundy, ‘‘SNCR and SCR Cost 

Estimates, Laramie River Station’’ 

(August 26, 2013) (S&L Evaluation). 

Sargent & Lundy is a leading 

engineering, design, and consulting firm 

and a system supplier that has extensive 

experience with the specification, 

evaluation, selection, and 

implementation of emission control 

technologies and coal-fired power 

plants, including more than 98 projects 

for the control of NOX emissions. S&L 

Evaluation section 2. Indeed, Sargent & 

Lundy has participated in the 

installation of more than 72 SCR 

systems and 26 SNCR systems. Id. The 

Sargent & Lundy Evaluation follows the 

BART Guidelines and uses the 

methodology in the CCM where 

possible, while addressing site-specific 

variables that are critical to reaching an 

accurate cost estimate for these NOX

control technologies at Laramie River 

Station. 

The Sargent & Lundy Evaluation 

estimates that the total capital costs of 

SCR would exceed $746 million, while 

annual costs of an SCR system for the 

Laramie River units would total more 

than $86 million. S&L Evaluation, 

Tables 3, 7. Total capital costs for 

installing SNCR on all three units, on 

the other hand, would be approximately 

$50.6 million with annual costs of 

approximately $20 million. Id. Tables 2, 

6. Moreover, the cost effectiveness of 

SNCR based on the Sargent & Lundy 

Evaluation would be between $6,967 to 

$7,013 per ton of NOX removed. Cost 

effectiveness values for SCR range from 

$8,531 per ton of NOX removed to 

$9,048 per ton of NOX removed, with an 

incremental cost effectiveness compared 

to SNCR of between $9,157 per ton to 

$9,862 per ton. Id. Table 7. The Sargent 

& Lundy Evaluation demonstrates that 

the costs of installing SCR at Laramie 

River Station are excessive and supports 

Wyoming’s determination that OFA 

plus LNB constitutes BART. 

Response: As noted on page 21 of 

Exhibit 14 of Basin Electric’s comments: 

‘‘. . . Cost estimates prepared for 

Laramie River Station are based on 

equipment costs and budgetary quotes 

available from similar projects and 

Sargent & Lundy’s experience with the 

design and installation of retrofit SNCR 

and SCR control systems. The Laramie 

River Station cost estimates are 

conceptual in nature; thus, Sargent and 

Lundy did not procure equipment 

quotes specifically for the Laramie River 

Station control systems. Rather, 

equipment costs for the Laramie River 

Station projects are based on conceptual 

designs developed for the control 

systems, preliminary equipment sizing 

developed for the major pieces of 

equipment, and recent pricing for 

similar equipment . . .’’ 

As noted in EPA’s response to other 

comments, EPA has found a number of 

deficiencies in Sargent & Lundy’s 

estimates and disagrees with the costs 

they have arrived at for SCR. Also as 

described in response to other 

comments, in light of recently submitted 

information, EPA has accepted Basin 

Electric’s estimated capital cost of 

SNCR. 

Comment: The Sargent & Lundy 

Evaluation and resulting cost estimate is 

far more accurate than the study level 

estimate contemplated by the CCM and 

the IPM algorithms relied upon by EPA 

in its SIP disapproval and FIP. The 

Sargent & Lundy Evaluation takes into 

consideration site-specific design and 

operating parameters and provides a 

conceptual, or scoping-level, estimate 

for SNCR and SCR at Laramie River. 

S&L Evaluation section 4.5. 

The BART Guidelines state that ‘‘cost 

estimates should be based on the 

OAQPS Control Cost Manual, where 

possible’’ and in those cases where the 

CCM addresses the control technology 

in ‘‘sufficient detail for a BART 

analysis.’’ 70 FR 39166. In all cases, 

however, ‘‘[t]he cost analysis should 

also take into account any site-specific 

design or other conditions . . . that 

affect the cost of a particular BART 

technology option.’’ Id. The CCM 

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describes various technologies and 

provides general costing methodology, 

but EPA acknowledges that the 

methodology is intended to provide a 

‘‘rough order of magnitude’’ estimate of 

costs that is accurate to within ±30%. 

CCM section 1.2, page 1–4. This rough 

estimate is appropriate for regulatory 

development because it can be prepared 

at a ‘‘relatively low cost with minimum 

data.’’ Id. section 2.2, page 2–3 (internal 

quotations omitted). See also S&L 

Evaluation at section 4.5. But ‘‘EPA does 

not claim cost estimates for industry at 

greater than study level accuracy for 

industrial users’’ because ‘‘the industrial 

user will necessarily have much more 

detailed information than the generic 

cost and sizing information.’’ CCM 

section 2.2, page 2–4, 2–5. 

The BART Guidelines may reference 

the CCM because it provides a simple 

and less costly methodology for 

estimating costs, but neither the 

Guidelines nor the CCM require use of 

a less accurate methodology where more 

accurate methodologies are appropriate. 

Indeed, the BART Guidelines require 

consideration of site-specific variables 

that in some cases, such as with SCR, 

are not factored into the examples 

provided by the CCM. 70 FR 39166. 

Under these circumstances, the Manual 

‘‘offers the user an opportunity for 

greater accuracy than that used by 

regulators’’ and gives users the 

discretion to ‘‘exercise ‘engineering 

judgment’ on those occasions when the 

procedures need to be modified or 

disregarded.’’ CCM section 1.2, page 2– 

4, section 1.3, page 1–7. 

The cost estimates prepared by 

Sargent & Lundy are scoping-level 

estimates, which required the use of 

numerous site-specific design 

parameters that are not included in the 

general CCM equations and reflect all 

costs to install the control systems, 

taking into account site-specific 

variables and physical constraints. S&L 

Evaluation section 4.5, Attachments A1, 

A2. These estimates are far more 

accurate than EPA’s estimates, reinforce 

Wyoming’s BART determination, and 

demonstrate there is no basis for EPA to 

disapprove the State’s action. 

Response: We agree that sourcespecific costs can be useful in the BART 

analysis and agree with a number of the 

cost estimates in the Sargent & Lundy 

analysis. However, as noted in our 

response to other comments, EPA found 

Sargent & Lundy’s estimates of SCR 

capital cost deficient in a number of 

respects, specifically: (1) Inadequate 

explanation for the high labor rates that 

were assumed when compared to 

published labor rates; (2) High overtime 

and per diem costs without sufficient 

explanation; (3) Apparent duplication of 

costs associated with General Facilities; 

(4) Inclusion of AFUDC; (5) Apparent 

duplication of contingencies and other 

cost adders; and (6) Addition of 

unnecessary SO3 mitigation system. All 

of these contributed to excessively high 

capital cost. Sargent & Lundy also 

assumed excessively high cost for 

replacement catalyst, which contributes 

to high operating cost. 

As described in our responses to other 

comments, in light of recently submitted 

information, EPA has accepted Basin 

Electric’s estimated capital cost of 

SNCR. 

Comment: The Sargent & Lundy’s 

estimate for SCR considers critical sitespecific variables that are not captured 

by the CCM. The Sargent & Lundy 

estimate for SCR is based on an indepth, detailed study of site-specific 

costs conducted by a team of engineers 

with extensive experience in SCR 

installations. In order to establish SCR 

control system design parameters and to 

prepare inputs for the capital cost 

estimate, Sargent & Lundy engineers 

performed a site walkdown to identify 

site constraints for the SCRs and 

associated plant modifications and 

reviewed operating conditions at Units 

1 through 3 affecting flue gas conditions 

at the SCR inlet. Sargent & Lundy then 

developed general arrangement 

drawings for the SCRs and new 

ductwork, on which estimations for 

material quantities were made. Finally, 

Sargent & Lundy evaluated the existing 

forced draft (FD) fan buildings to 

determine whether the existing 

buildings could support the SCR 

structures based on the conceptual 

design. 

Sargent & Lundy’s evaluation 

identified important design 

considerations affecting the SCR cost 

estimates, many of them directly related 

to the considerations that EPA 

acknowledges in the CCM make broad 

brush cost estimates for SCR nearly 

impossible. CCM section 2.5.4.2, page 

2–28 (installation of SCR can ‘‘impose 

an addition expense to ‘shoe-horn’ the 

equipment into the right locations’’ 

where ‘‘there is generally little room for 

the reactor to fit in the existing space 

and additional ductwork, fans, and flue 

gas heaters may be needed to make the 

system work properly.’’). The 

considerations include, inter alia, 

congested existing plant configuration, 

and limited auxiliary power available at 

the station. S&L Evaluation section 

4.3.1. 

The site congestion at Laramie River 

Station substantially complicates 

installation of SCR systems because the 

location of the FD fan buildings limits 

the open area available to drop support 

columns for the SCR. Id. Based on the 

site walkdown and review of drawings 

provided by Basin Electric, the 

conceptual design placed the SCRs 

directly above the existing FD fan 

buildings, which will require that the 

SCR support columns penetrate the FD 

fan buildings. This, in turn, would 

require the construction of deep 

foundations for the SCR support 

columns in a congested area resulting in 

challenging and time-consuming efforts 

to ensure adequate support. Id. Another 

related complicating factor relates to 

constructability issues. All three units 

are constructed side-by-side in a row 

with little space between them, which 

limits crane placement and would 

require selection of larger, more 

expensive cranes during installation. Id. 

Another major design consideration 

identified by Sargent & Lundy is the 

need for entirely new auxiliary power 

equipment for the SCR and replacement 

induced draft (ID) fans because the 

existing ID fans currently are running at 

full capacity. Id. 

In addition, Sargent & Lundy’s 

Evaluation took into consideration, 

among other factors, the following sitespecific conditions that affect the cost of 

SCR at Laramie River Station: (1) Boiler 

Building Reinforcement. SCR duct work 

will penetrate the existing boiler 

building structural columns, thereby 

requiring that the boiler building 

structural supports be redesigned and 

rebuilt and engineered to ensure 

continued support of the 20-story boiler 

building. (2) SCR Reactors and Catalyst. 

The conceptual design calls for two 

reactors per unit using anhydrous 

ammonia as the reagent. To achieve 

required NOX emission reductions on a 

consistent basis, three layers of catalyst 

would be required and the SCRs would 

need to be designed to hold four layers 

of catalyst. (3) Ammonia System. The 

conceptual design located the 

anhydrous ammonia system in a remote 

location from the units and, therefore, 

the cost estimate assumed that all three 

SCR units would share a single 

ammonia storage facility. (4) Structural 

Stiffening. Structural stiffening of the 

ductwork and equipment downstream 

of the boiler and upstream of the new 

ID fans would be required by federal 

regulation to operate at more negative 

pressures due to installation of the SCR. 

Response: EPA has reviewed the 

submitted comments, and believes that 

for each of the items cited, insufficient 

information was provided to justify why 

the cost of SCR at Laramie River Station 

would be so much higher than for other 

SCRs. Commenter cites the location of 

the SCR reactor as an issue. This is an 

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issue that is common to every SCR 

retrofit. Based upon information used by 

EPA and information submitted by 

Basin Electric, there is no indication 

that location of the SCR reactor will be 

any more difficult than at any other site. 

In fact, the location is a rather common 

location. There was no indication that 

major equipment would need to be 

relocated. Therefore, in this respect 

Laramie River does not appear to be any 

more difficult than a typical SCR 

retrofit. 

Pertaining to site congestion, Laramie 

River is no more congested than a 

typical facility that retrofits SCR, and in 

some respects is less congested. There is 

greater difficulty in retrofitting unit 2 

(the middle unit), and EPA accounted 

for that with a higher retrofit difficulty 

factor. Commenter indicates that the 

SCR support steel will interfere with 

equipment at the ground level, 

specifically, the FD fan buildings, 

requiring installation of steel and deep 

foundations in a congested area. SCRs 

are rarely installed at ground level and 

are normally installed above other 

equipment. SCR support steel is 

therefore commonly installed in this 

area below the SCR and there typically 

is other equipment that interferes with 

this. This is not an unusual situation 

and is not a reason for SCR cost at 

Laramie River Station to be higher than 

a typical retrofit. Side-by-side 

installation is common, and EPA has 

accounted for that with a higher retrofit 

difficulty factor for unit 2. 

Most boilers are inside a boiler 

building and SCRs are always built 

outside the boiler building, making it 

always necessary to route ductwork 

through the boiler building wall or 

through the roof. Making penetrations 

for SCR ductwork through the boiler 

building wall is very common in SCR 

retrofits, and this is not a reason to 

justify a higher cost for an SCR retrofit 

at Laramie River station. SCR reactor 3 

plus 1 and in two sections is a common 

SCR arrangement for a boiler of this size 

and does not justify a higher than 

average cost for Laramie River. All SCR 

systems have ammonia storage facilities 

and typically try to combine storage for 

all units at a site together. Ammonia 

storage is not a major cost item and 

where the system is located on the site 

will not make a large difference in 

overall cost. Pertaining to the need for 

an additional fan, the cost estimate used 

by EPA had a specific line item cost for 

the fan and associated costs for 

electrical and other modifications. 

Structural stiffening of ductwork is 

typically required when an ID fan is 

added. The cost estimate by EPA 

included provision for this. 

Notwithstanding these points, EPA has 

accepted parts of Basin Electric’s cost 

estimate where those costs are 

supported. See EPA’s response to other 

comments for more information. 

Comment: Sargent & Lundy estimated 

capital costs based on the conceptual 

design of SCR installation at Laramie 

River Station and in-depth itemized 

studies, not the type of generic cost 

factors set forth in the CCM. As a result, 

the Sargent & Lundy Evaluation 

provides cost estimates that reflect more 

accurately the actual costs Basin Electric 

would incur for installation of SCR at 

Laramie River. 

The Sargent & Lundy Evaluation uses 

an SCR design with itemized budgetary 

cost estimates for major equipment 

items and site-specific costs. S&L 

Evaluation section 4.5, Attachment A2. 

For example, the estimate includes lineitem costs for upgrades, replacements, 

or installations of the following plant 

subsystems to support SCR operation at 

the Laramie River Station: (1) 

Foundation work to support SCR 

systems; (2) Economizer ductwork 

modifications; (3) Larger ID fans will be 

required on all three units, requiring 

replacement of the existing ID fans; (4) 

Existing electrical systems are not 

capable of handling the new fan loads 

and SCR control systems and will 

require significant upgrades; (5) 

Structural stiffening of the duct work 

downstream of the air heater and 

upstream of the new ID fans; (6) The 

existing Distributed Control System 

needs to be expanded; (7) Dry sorbent 

injection control systems will be 

required on Units 1 and 2 for SO3

mitigation, resulting from the wet 

scrubbers installed on those units; and 

(8) Ammonia unloading area 

construction, including two storage 

tanks and tank equipment, as well as 

ammonia delivery and vaporization 

equipment. 

Because of the site-specific nature of 

these items, the assumptions in the 

CCM would not be adequate to account 

for them, yet these types of system 

upgrades add substantial cost to the SCR 

installation. 

Sargent & Lundy prepared direct 

capital cost estimates for each of these 

systems, including all costs associated 

with equipment, labor, and freight. S&L 

Evaluation section 4.5. As EPA 

acknowledges, due to the site-specific 

nature of SCR, detailed vendor quotes 

are difficult to obtain because they 

cannot be done in an ‘‘off-the-shelf’’ 

fashion. CCM section 2.5.4.1, page 2–27. 

Sargent & Lundy, however, has used 

example vendor quotes for major pieces 

of equipment, including ammonia 

handling system, unity auxiliary 

transformers, catalyst modules, and 

sootblowers and sonic horns, and 

adjusted the quotes as necessary to 

account for the site-specific factors such 

as Laramie River Stations’ boiler size, 

flue gas rates, flue gas temperatures, and 

inlet and outlet NOX concentrations. 

S&L Evaluation section 4.4.1; 

Attachment A2. Sargent & Lundy also 

provided process equipment cost 

estimates for manufactured equipment 

in Attachment E of its Evaluation. 

Sargent & Lundy estimated material 

and commodity costs by multiplying the 

quantity of the material needed to 

install the system based on the 

conceptual design by the unit cost for 

the commodity, which was estimated 

using Sargent & Lundy in-house data, 

vendor catalogs, and industry 

publications. Id. section 4.4.2. The basis 

for the estimates of materials is set forth 

in detail in the Sargent & Lundy 

Evaluation. Id. section 4.4.2.1. Labor 

costs were estimated based on man-hour 

estimates from industry publications, 

union craft rates for southeastern 

Wyoming, and a local labor productivity 

factor. Id. See also id. at Attachment F 

(Example Industry Publications— 

Commodity Costs and Man-Hour 

Estimates). Where the conceptual design 

provided insufficient detail on which to 

generate an estimated cost, Sargent & 

Lundy used allowances based on the 

typical scope of similar projects. Id. 

section 4.4.3. 

Sargent & Lundy considered both 

fixed and variable operating and 

maintenance costs. S&L Evaluation 

section 4.5. Variable costs for SCR 

include costs of anhydrous ammonia 

and catalyst replacement costs, while 

fixed costs include property taxes and 

insurance. Id. section 4.5 and Table 5. 

Sargent & Lundy’s analysis did not use 

the maintenance materials and labor 

cost in the CCM of 1.5% of Total Capital 

Investment because it results in 

significantly higher than expected 

maintenance costs than reported by 

industry. Rather, Sargent & Lundy used 

a lower maintenance materials and labor 

cost of 0.25% of Total Capital 

Investment, which results in a 

conservative estimate of operating and 

maintenance costs. Id. section 6.1.2. 

Indirect capital costs were estimated 

based on total direct capital costs using 

the factors set forth in EPA’s CCM. S&L 

Evaluation section 4.4.5. For large 

projects like SCR, with project durations 

of between 1.5 years and four years, 

Sargent & Lundy typically would 

account for escalation, reflecting the 

increases in equipment, material, and 

labor costs that occur during the 

duration of the project. Id. section 

4.4.6.1. Sargent & Lundy has taken a 

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224The CEPCI is an industry index that allows for 

adjustment of plant construction costs from one 

period to another. 

225Sargent & Lundy, ‘‘IPM Model—Revisions to 

Cost and Performance for APC Technologies SCR 

Cost Development Methodology FINAL’’, August 

2010, Project 12301–007, Perrin Quarles Associates, 

Inc. p 1. 

conservative approach in its estimate, 

however, and has calculated estimates 

in constant 2013 dollars without 

including escalation, which is 

consistent with the constant dollar 

approach discussed in the CCM. Id.; 

CCM section 4.2, page 2–43. 

Response: As noted on page 21 of 

Exhibit 14 of Basin Electric’s comments: 

‘‘. . . Cost estimates prepared for 

Laramie River Station are based on 

equipment costs and budgetary quotes 

available from similar projects and 

Sargent & Lundy’s experience with the 

design and installation of retrofit SNCR 

and SCR control systems. The Laramie 

River Station cost estimates are 

conceptual in nature; thus, Sargent and 

Lundy did not procure equipment 

quotes specifically for the Laramie River 

Station control systems. Rather, 

equipment costs for the Laramie River 

Station projects are based on conceptual 

designs developed for the control 

systems, preliminary equipment sizing 

developed for the major pieces of 

equipment, and recent pricing for 

similar equipment . . .’’ 

The approach used by Sargent & 

Lundy is essentially how the cost 

algorithms for IPM were developed, 

upon which EPA relied. Both are 

empirically-based estimates that, as 

demonstrated in our response to other 

comments, use many of the same inputs. 

However, Sargent & Lundy developed a 

very detailed cost estimate that includes 

many line items that would otherwise 

be included in the Project Contingency 

or other areas, such as General 

Facilities, and thereby double-counted 

these costs. 

EPA has addressed comments relative 

to capital cost estimates in our other 

responses. EPA has reviewed the 

assumed variable operating costs and 

has commented on them in other 

comments. Regarding fixed operating 

costs, the IPM algorithm represents 

information from actual facilities, and is 

therefore used in EPA’s analysis. As far 

as indirect capital costs, EPA agrees that 

escalation should not be included 

because the CCM requires use of the 

overnight method. 

Comment: When site-specific 

conditions are taken into consideration, 

the costs of installing SCR at Laramie 

River Station would total nearly $747 

million, with annual costs of 

$86,074,000. The per unit breakdown of 

capital costs are set forth in Table 5 and 

Table 3 of the Sargent & Lundy 

Evaluation. Direct costs include: 

Equipment, material, labor, spare parts, 

special tools, consumables, and freight. 

Total project costs include equipment 

costs for the SCR, ammonia handling 

system, and balance-of-plant systems 

including the ID fan, auxiliary power 

system, electrical system, and dry 

sorbent injection control systems on 

Laramie River Units 1 and 2. See S&L 

Evaluation section 4. Indirect costs 

include: General facilities, engineering 

and home office fees, contingencies, 

preproduction costs, and initial catalyst 

fills. See Cost Manual section 2.5.2, 

pages 2–41 through 2–47; S&L 

Evaluation section 4.4.5. 

In all cases, Sargent & Lundy used 

methodology that results in a 

conservative estimate of total costs 

taking into account the unique, sitespecific factors discussed above. The 

Sargent & Lundy Evaluation explains 

the effect of these factors on the cost 

estimate, consistent with the BART 

Guidelines and the CCM. S&L 

Evaluation section 5.2.1; CCM section 

4.2, page 2–21. In addition, as 

acknowledged by EPA’s own consultant, 

SCR capital costs have risen 

significantly over the past decade. S&L 

Evaluation section 5.2.1, citing 

Cichanowicz, Edward J., ‘‘Current 

Capital Cost and Cost-Effectiveness of 

Power Plant Emissions Control 

Technologies,’’ (January 2010). 

Response: EPA disagrees with 

commenter and has identified numerous 

deficiencies in the cost estimate 

developed by Sargent & Lundy for the 

Laramie River Station that are discussed 

in previous responses to comments. 

Furthermore, the IPM cost algorithm 

used had already been adjusted to 

address escalation to 2009 dollars and, 

per the memo by EPA’s contractor for 

this action, the Chemical Engineering 

Plant Cost Index (CEPCI) 224 was used to 

escalate costs after that period. Per the 

memo for the IPM algorithm: ‘‘The data 

sets were escalated to update the MOG 

information to 2009 and all of the data 

was cross referenced with current 2009 

projects. The MOG and S&L cost data 

were updated to reflect the changes in 

equipment and labor rates. The CEPCI 

index for power plants was used to 

escalate the costs. The Handy-Whitman 

index was also used to escalate the 

project costs to account for regional 

effects; the results were compared with 

the CEPCI index and were within 2% 

for total project costs.’’ 225

Comment: The Sargent & Lundy 

Evaluation considers site-specific data, 

including operating parameters for the 

Laramie River Station units and design 

parameters for SNCR that were 

developed based on input from Basin 

Electric and on Sargent & Lundy’s 

extensive experience. S&L Evaluation 

section 4.1, Table 1. See also id. at 

Attachment A1. Prior to undertaking the 

cost estimate, Sargent & Lundy 

developed a conceptual design taking 

into consideration site-specific design 

and operating parameters. S&L 

Evaluation section 4.2.1. The Evaluation 

highlights each of these project-specific 

considerations, which include, among 

other items: (1) Considerations Related 

to Use of Urea as the Reagent. The SNCR 

estimate is based on use of urea as a 

reagent, which would be delivered by 

truck and unloaded into fiberglass 

reinforced plastic storage tanks. The 

tanks would be cross tied and solution 

would be transferred using stainless 

steel piping. Centrifugal pumps would 

be needed to pump solution to metering 

modules and variable frequency drives 

would be used to maintain constant 

pressure. Finally, distribution modules 

would be needed to provide diluted 

urea solution and atomizing air to 

individual injectors. The design, 

quantity, type and placement of 

injectors are critical to SNCR 

performance. (2) Furnace Modifications. 

Penetrations in the boiler water wall 

would be required at injector locations; 

and to support injector penetrations, 

water wall tubes would need to be 

removed and replaced with tubes 

curved around the location. Also, 

reinforcement may be necessary to 

support the injectors. (3) Process and 

Freeze Protection Tracing System. A 

freeze protection system would be 

necessary for outdoor piping and 

instruments. The system would be 

designed to accommodate both normal 

plant operations and extended 

shutdowns during cold weather. S&L 

Evaluation section 4.2.2. 

The equipment costs were estimated 

based on SNCR original equipment 

manufacturers for control systems on 

similar coal-fired boilers in light of the 

conceptual design of the control 

technology. Equipment costs were 

developed for SNCR metering skids and 

injectors, compressors, reagent storage 

tanks, and related ancillary equipment. 

Id. section 4.4.1. Consistent with the 

SCR cost estimate, material and 

commodity quantities for structural, 

mechanical and electrical items were 

developed for each subsystem included 

as part of the SNCR system and 

provided as inputs to the cost 

calculation. Id. section 4.4.2.1. Material 

and commodity pricing was based on 

in-house data, vendor catalogs, and 

industry publications. Id. Where the 

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conceptual design provided inadequate 

detail on which to base costs, 

allowances were used. Id. section 4.4.3. 

Similar to the SCR cost estimate, labor 

costs were based on local labor rates, 

with an estimate of man-hours required 

for installation of each line item in the 

SNCR estimate. Id. section 4.4.4. 

Indirect capital costs were based on 

the CCM, using default factors set forth 

in Section 4.2, Chapter 1, Table 1.4. Id. 

section 4.4.5. The estimate includes 

variable and fixed operating and 

maintenance costs, including costs for 

urea. Id. section 4.5. Sargent & Lundy 

did not include either escalation or 

AFUDC in its cost estimate because the 

installation of SNCR systems are less 

capital and time intensive and can be 

done in a shorter period of time than 

SCR systems. S&L Evaluation section 

4.4.6.3. 

Based on methodology consistent 

with the CCM, total site-specific costs 

for installation of SNCR at Laramie 

River Station are approximately $50.5 

million, with annual costs of $19.75 

million. The breakdown of total costs 

per unit can be found at Table 2 of the 

Sargent & Lundy Evaluation. 

Response: Based upon information 

provided by Basin Electric in their 

comments, EPA has accepted Basin 

Electric’s estimated capital cost for 

SNCR and the estimated chemical 

utilization. 

Comment: The Sargent & Lundy 

Evaluation supports Wyoming’s BART 

determination. The average 

effectiveness of both SNCR and SCR are 

high, and the incremental cost of SCR 

compared to SNCR is even higher. 

Sargent & Lundy calculated the cost 

effectiveness of SNCR and SCR 

technologies based on emission rates 

resulting from Laramie Rivers’ 

installation of LNB and OFA, consistent 

with the BART Guideline’s directive to 

use baseline emission rates that 

‘‘represent a realistic depiction of 

anticipated annual emissions for the 

source.’’ 70 FR 39167. For comparison 

purposes, Sargent & Lundy also 

performed a sensitivity analysis 

showing the values generated by using 

the 2001 through 2003 emission rates, 

which EPA’s relied upon in making the 

BART determination in its proposed 

FIP. S&L Evaluation section 6.1.3, 

Tables 11–12. The cost effectiveness of 

SCR still remains between $5,955 and 

$6,298 costs per ton of NOX removed 

and incremental cost effectiveness from 

SNCR is above $9,000 per ton of NOX

removed. Id. Table 12. These cost 

effectiveness values remain prohibitive, 

and reinforce Wyoming’s determination 

that OFA plus LNB constitutes BART at 

Laramie River and EPA’s 2012 rejection 

of SCR as not cost effective. 

The Sargent & Lundy Evaluation 

further supports Wyoming’s BART 

determination for Laramie River Station 

by providing a more precise cost 

estimate for both SCR and SNCR. At 

significant expense, Basin Electric 

arranged for an evaluation of the costs 

of compliance with SCR and SNCR at a 

level of detail that far exceeds what the 

CCM requires, but represents the gold 

standard for estimating the costs of 

compliance for a control technology. 

This evaluation demonstrates that the 

costs to install SCR at Laramie River 

would reach $750 million, far above 

what EPA estimates in the proposed SIP 

disapproval and FIP. In sum, the 

Sargent & Lundy Evaluation supports 

Wyoming’s BART determination, and its 

decision not to require SCR, with a 

detailed consideration of the costs of 

compliance for Laramie River. 

Moreover, the Evaluation highlights the 

fundamental inadequacies in EPA’s own 

cost estimates, on which EPA bases both 

its decision to disapprove the SIP and 

the BART determinations in its FIP. 

Response: EPA disagrees with 

commenter and has identified numerous 

deficiencies in the cost estimate 

developed by Sargent & Lundy for the 

Laramie River Station that are discussed 

in previous responses to comments. 

EPA calculated emission reductions 

from emission rates indicative of preBART levels in 2001–2003, prior to 

addition of combustion controls for 

BART. The estimated reduction of NOX

by SNCR and SCR used baseline levels 

that were based upon actual emission 

rates achieved after the addition of those 

combustion controls. 

Comment: The EPA’s expert, 

Andover, used aerial photographs to 

assess the structural and mechanical 

changes necessary for installation of the 

SCR. As witness Ken Snell 

demonstrated at the July 26, 2013, 

public hearing, however, an aerial 

photograph is wholly inadequate to 

assess site-specific conditions that affect 

SCR costs. Those relevant site-specific 

conditions include, among others, the 

following: (1) Site elevation—Laramie 

River is situated at 4,750 feet above 

mean sea level (MSL), a fact which 

affects the flue gas volume which 

require a larger SCR reactor, duct work 

and structural support; (2) Regional 

labor productivity factor—necessary to 

account for local workforce 

characteristics, labor availability, project 

location, project complexity, local 

climate and working conditions; (3) 

Location of conveyor rooms—aerial 

photo cannot reveal conveyor rooms 

located in boiler buildings; (4) Location 

of FD Fan buildings—aerial photo 

cannot reveal the location of the existing 

FD fan buildings; (5) Space 

constraints—aerial photo cannot 

determine the space constraints between 

the FD fan buildings and existing ESPs; 

(6) Ammonia handling—aerial photo 

cannot provide information about where 

the ammonia handling system required 

for an SCR could be located, or where 

pipe routing could be placed; (7) 

Ductwork routing—aerial photo does 

not provide information regarding 

ductwork routing and SCR tie-ins to the 

existing economizers and air heaters; 

and (8) Subsystems ignored—aerial 

photo does not provide any information 

regarding plant subsystems such as ID 

fan capacity, equipment reinforcement, 

auxiliary power systems, electrical 

system capacity, or other plant 

subsystems. 

Failure to take into consideration the 

site-specific, plant-specific 

characteristics for installation of SCR 

systems necessarily leads to a 

significant underestimation of the costs 

to install such control technology. EPA’s 

expert Andover, using generalized data 

and an aerial photograph, estimated the 

total capital investment for installation 

of an SCR at $330,000,000. However, 

when actual site conditions are 

considered—i.e. site elevation, regional 

productivity factors, site congestion, 

balance-of-plant subsystem upgrades 

and other indirect costs—expert Ken 

Snell estimated the total capital 

investment at $746,906,000. Failure of 

EPA’s expert to take into consideration 

the Laramie River Station’s specific 

characteristics and plant configuration 

omits approximately $460,000,000 in 

very real costs. To turn a blind eye to 

site-specific characteristics that have a 

major impact on costs of installation 

skews the EPA’s cost analysis by more 

than 100 percent. Basing the Laramie 

River Station BART determination on 

EPA’s cost estimates would be arbitrary 

and capricious. 

EPA proposes to reject Wyoming’s SIP 

despite a finding that ‘‘Wyoming 

considered all five steps above in its 

BART determinations’’ because of 

alleged ‘‘flaws and deficiencies’’ in the 

cost assumptions and methodology, 

including Wyoming’s alleged failure to 

‘‘follow the methods set forth in the 

EPA Control Cost Manual.’’ 78 FR 

34748–34749. To address these alleged 

deficiencies, EPA hired its own 

consultant, Andover Technology 

Partners (‘‘Andover’’), to perform an 

independent cost analysis of installing 

SNCR and SCR at the Laramie River 

Station. Andover, Review of Estimated 

Compliance Costs for Wyoming 

Electricity Generating Units (EGUs) 

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226http://www.epa.gov/airmarkets/progsregs/epaipm/docs/v410/Appendix52A.pdf. 

(Oct. 23, 2012), EPA–R08–OAR–2012– 

0081 (‘‘Andover Report’’); Andover, 

Review of Estimated Compliance Costs 

for Wyoming Electricity Generating 

Units (EGUs)—revision of previous 

memo (Feb. 7, 2013), EPA–R08–OAR– 

2012–0086 (‘‘Andover Update’’). 

Ironically, it is the cost methodology 

relied upon in the Andover Report that 

deviates from the BART Guidelines and 

the CCM, thereby making Andover’s 

analysis inconsistent with EPA’s claim 

that cost estimates should not deviate 

from the CCM. As a result, EPA’s cost 

estimates are less accurate than the 

Wyoming cost estimates and the Sargent 

& Lundy Evaluation and do not form a 

legally supportable basis on which to 

base either a SIP disapproval or the 

promulgation of a FIP. 

Sargent & Lundy, at Basin Electric’s 

request, has provided a critique of the 

Andover Report that highlights the 

numerous technical irregularities in the 

cost estimate relied upon by EPA for the 

proposed disapproval of the Wyoming 

SIP and the FIP. Sargent & Lundy 

Laramie River Station Andover Report 

Comparison (August 26, 2013), Exhibit 

16 (‘‘S&L Critique’’) to commenter 0148. 

The Sargent & Lundy Critique 

demonstrates that EPA’s reliance on the 

Andover Report is not in accordance 

with section 169A of the CAA and the 

BART Guidelines for three reasons: (1) 

Andover relied primarily on the IPM for 

cost methodology, which is not 

consistent with the BART Guidelines or 

the CCM methodology and never was 

intended to be used to develop a sitespecific cost estimate. (See section 2.3, 

EPA Use of the IPM Cost Models.); (2) 

Andover failed to take into account sitespecific conditions and resulting 

balance of plant systems required for 

SCR and SNCR and therefore did not 

comply with the directive in the BART 

Guidelines that cost estimates ‘‘take into 

account any site-specific design or other 

conditions . . .’’ 70 FR 39166.; (3) 

Andover ignored NOX reductions 

achieved to date by existing control 

equipment, thereby artificially 

increasing the cost effectiveness of SCR. 

If EPA is basing its SIP disapproval on 

failure to adhere to the methodology set 

forth in the CCM, EPA’s reliance on the 

cost estimation in the Andover Report is 

wholly inappropriate and imposes an 

arbitrary double standard. Not only does 

the Andover Report rely on 

methodology that deviates from the 

CCM, but EPA’s approach is 

inconsistent with the requirements of 

the BART Guidelines because it does 

not adhere to the three-step approach 

for cost estimation set forth in the 

Guidelines and fails to appropriately 

account for ‘‘site-specific design or other 

conditions’’ that ‘‘affect the cost of a 

particular BART technology option.’’ 70 

FR 39166. Reliance on the Andover 

Report for disapproval of the Wyoming 

SIP or imposition of a FIP would 

constitute arbitrary and capricious 

decision making and would run 

contrary to the very provisions of law on 

which EPA proposes to base its 

decision. 

Response: EPA disagrees with 

commenter and has identified numerous 

deficiencies in the cost estimate 

developed by Sargent & Lundy for the 

Laramie River Station that are discussed 

in previous responses to comments. 

EPA has also noted in other responses 

to comments that, except for elevation, 

each of the site-specific issues raised by 

commenter has been addressed, or 

commenter has not provided adequate 

information to support their assertion 

that there are unique costs that are not 

accounted for in EPA’s cost estimate. 

We disagree with the characterization of 

the cost development methodology 

contained in IPM as inconsistent with 

BART guidelines. As noted in the 

documentation for IPM’s cost 

development methodology for SCR, the 

cost estimate methodology is based 

upon two databases of actual SCR 

projects.226 These databases include 

2004 and 2006 industry cost estimates 

prepared for the Midwestern Ozone 

Group, and a proprietary in-house 

database maintained by engineering 

firm Sargent & Lundy. The Midwestern 

Ozone Group information was crossreferenced with actual 2009 projects, 

and as explained elsewhere in this 

document, escalated accordingly. 

Sargent & Lundy then used the 

information in these databases to 

develop the equations described in the 

cost component taking into account the 

pre-control NOX emission level, degree 

of reduction, coal type, facility size, and 

numerous other unit-specific factors. 

While a costly engineering evaluation 

that included site visits in addition to 

our use of satellite imagery might be 

useful, we disagree that our approach is 

not sufficiently site specific to satisfy 

BART guidelines. As noted by EPA in 

previous responses, EPA’s use of 

satellite imagery enabled us to evaluate 

each of the major site-specific issues. 

Comment: EPA argues that ‘‘[w]hen 

considering the cost effectiveness and 

visibility improvement of new LNBs 

plus OFA and SCR, it is within the 

range of what EPA has found reasonable 

for BART in other SIP and FIP actions.’’ 

78 FR 34776. EPA’s cost effectiveness 

and visibility improvement numbers for 

Laramie River Station Units 1–3 are 

within the range of what EPA has found 

not to be reasonable for BART. The case 

for rejecting SCR becomes even more 

compelling when EPA’s numbers are 

corrected to comply with the BART 

Guidelines, CCM, and EPA guidance, 

and to reflect site specific conditions. 

With these comments, Basin Electric is 

submitting updated and more accurate 

reports with cost estimates and visibility 

modeling results based on inputs that 

are more correct and consistent with 

EPA’s BART Guidelines. Average and 

incremental cost effectiveness values for 

SCR at Laramie River Station in these 

reports are far higher than assumed by 

EPA, and visibility improvement 

associated with SCR is far lower than 

EPA assumed. For EPA to disapprove 

the State’s BART determination for 

Laramie River Station and proceed with 

its FIP in light of this new information 

would be egregiously inconsistent with 

BART actions it has taken for other 

sources. 

The following discussion explains 

that even with EPA’s cost and visibility 

values for Laramie River Station, its 

proposed action at Laramie River 

Station is inconsistent with actions 

elsewhere and EPA should withdraw its 

proposed disapproval. 

The comparison to Gerald Gentleman 

Station (GGS) Units 1–2 is striking. SCR 

was rejected at GGS despite 

substantially lower costs and very 

similar visibility improvement. GGS is a 

valid point of comparison despite the 

fact that Nebraska adopted the 

Transport Rule as a BART alternative. 

77 FR 40159. EPA did not make a final 

determination as to whether to select 

SCR as BART for GGS because Nebraska 

became subject to the Transport Rule 

and relied on that as a BART alternative. 

Id. However, EPA’s proposed rule 

discusses the costs and benefits of SCR. 

77 FR 12770, 12779 (March 2, 2012). In 

its proposed rule, EPA agrees with 

Nebraska’s decision to reject SCR at an 

average cost effectiveness of $2,297/ton 

and an incremental cost effectiveness of 

$5,445/ton (both as calculated by 

Nebraska). The projections of visibility 

improvement were the same in the 

proposal and the final rule, i.e. 0.62 

delta deciview for each of GGS Units 1 

and 2. The proposed rule states that 

‘‘EPA agrees that the State’s NOX BART 

determination for GGS is reasonable.’’ 

77 FR 12779. EPA never retracted that 

conclusion. 

The difference between EPA’s 

pending proposals for Wyodak Unit 1 

and Laramie River Station Units 1–3 are 

equally striking. The average and 

incremental cost effectiveness is 

virtually the same for these units. So are 

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227 77 FR 40159 (emphasis added). 

228 78 FR 10548. 

229 78 FR 34775–34776. 

the baseline and incremental visibility 

improvement figures. Yet EPA proposes 

to require LNB, OFA and SNCR at 

Wyodak Unit 1, as opposed to LNB, 

OFA and SCR at each Laramie River 

Station unit. 78 FR 34785. EPA bases 

these differing outcomes on the fact that 

SCR at Wyodak Unit 1 would achieve a 

cumulative visibility improvement of 

1.16 deciviews, whereas SCR at Laramie 

River Station Units 1–3 would 

reportedly achieve cumulative visibility 

improvements of 2.12, 1.97, and 2.29. 

Id. Cumulative visibility improvement 

at multiple Class I areas is not a valid 

criterion for use in BART 

determinations. Disregarding the invalid 

cumulative criterion, EPA 

inconsistently eliminated SCR as BART 

at Wyodak based on cost and visibility 

values very similar to EPA’s cost and 

visibility values for Laramie River 

Station. 

Also noteworthy is EPA’s decision to 

reject SCR as BART at Healy Unit 1 

because of its $5,300/ton cost 

effectiveness, 0.786 deciview visibility 

improvement from the LNB/OFA 

baseline, and 0.17 deciview incremental 

improvement compared to SNCR. EPA 

recalculated the costs after publishing 

its proposed rule to account for various 

potential useful life scenarios. The 

$5,300/ton figure shown here is for a 30 

year life. For a 20 year useful life, SCR 

would cost $5,900/ton. EPA concluded 

that these costs are ‘‘not justified’’ given 

the visibility improvement (which was 

not recalculated after proposal). 

A comparison of the costs and 

visibility impacts of installing and 

operating SCR at Laramie River Station 

Units 1–3 to the costs and visibility 

impacts of SCR at the facilities listed 

above quickly shows that SCR must be 

rejected as BART. EPA has made no 

attempt to explain why it proposes to 

disapprove the State’s BART for 

Laramie River Station and proposes SCR 

instead, when it has eliminated SCR at 

other facilities based on similar 

information. To the extent the 

information at the other facilities is a 

little different than at Laramie River, 

EPA has not and cannot show that the 

difference is significant or a reason to 

treat the facilities differently. 

Response: We disagree with the 

commenter’s assertion that our 

proposed action for Laramie River 

Station, as it relates to the consideration 

of SCR as BART, was inconsistent with 

our proposed action for other BART 

sources in Wyoming or with EPA 

actions in other States. 

Regarding NOX BART for Gerald 

Gentlemen Station in Nebraska, we note 

that our proposed approval of the State’s 

NOX BART determination, as described 

by the commenter, does not reflect final 

agency action. In our final rulemaking 

for Nebraska, where the State is subject 

to the Transport Rule and FIP for NOX, 

we provided the following: 

Given the emission reductions provided by 

the NOX emission limits associated with 

Nebraska’s NOX BART determination of LNB 

and OFA for GGS Units 1 and 2, which 

strengthen the Nebraska SIP, in conjunction 

with the existing Transport Rule FIP which 

already applies to Nebraska and has been 

determined to provide greater reasonable 

progress than BART, in today’s action, EPA 

is finalizing its proposed approval of 

Nebraska’s SIP as satisfying the requirements 

of the Regional Haze Rule with respect to 

BART for NOX, and therefore do not inquire 

further here as to whether the cost 

effectiveness of SCR is low enough and the 

associated deciview improvement significant 

enough to reasonably determine that SCR is 

BART for GGS Units 1 and 2.227

Therefore, because the Transport Rule 

removed the need for EPA to consider 

SCR for Gerald Gentlemen Station any 

further, there is no factual basis to 

determine whether our consideration of 

SCR in Wyoming differs from that in 

Nebraska. In simpler terms, the 

commenter has erred by drawing a 

comparison with a BART determination 

that was never finalized. 

We also disagree that our proposed 

NOX BART determinations for Laramie 

River Station were inconsistent with 

that for Healy Unit 1 in Alaska. There, 

the cost effectiveness of SCR, using a 20 

year lifetime comparable to that used for 

Laramie River Station, was found to be 

$5,900/ton.228 This cost effectiveness is 

greater than that for any of the Wyoming 

units for which EPA proposed SCR as 

BART, or for which EPA is finalizing 

SCR as BART today. The cost 

effectiveness of SCR (with combustion 

controls) for Laramie River Station units 

estimated by EPA in our proposed rule 

ranged from $3,589/ton to $3,903/

ton 229—at least 34% less than at Healy 

Unit 1. While we have revised these 

costs effectiveness estimates for today’s 

rule, they remain well below the $5,900/ 

ton cost effectiveness that EPA 

calculated for Healy Unit 1. 

Finally, while the costs and visibility 

improvement (at one Class I area) for the 

Laramie River units and Wyodak 

described in our proposed rule may 

have been similar, we disagree that the 

cumulative visibility benefit was not a 

valid criterion for use in BART 

determinations. Refer to the modeling 

section above where we address our 

consideration of cumulative visibility 

benefits. 

We have addressed the updated cost 

estimates and visibility modeling 

submitted by Basin Electric during the 

public comment period in other 

response to comments. 

Comment: SCR should be rejected for 

Laramie River Station Units 1–3 because 

of its high cost per deciview of visibility 

improvement. EPA did not report the 

$/deciview for Laramie River Station, 

but dividing the annualized costs by the 

visibility improvement (from the preLNB/OFA baseline) reveals that SCR 

would cost between $23.0 million and 

$27.8 million per deciview of 

improvement in the Class I area with the 

greatest visibility improvement. These 

figures are very similar to the 

$/deciview numbers seen at Martin 

Drake, Colstrip, Corette, and GGS, and 

substantially higher than the $10.8 

million and $20 million figures reported 

for Lakeland Electric and JEA Northside. 

The Laramie River figures are also well 

above the $14 million to $18 million per 

deciview range that has frequently been 

seen as cost effective. EPA has not 

considered or justified SCR at Laramie 

River in light of its high cost per 

deciview. 

Not only has EPA proposed to 

mandate SCR for Laramie River at 

$/deciview levels where SCR has 

previously been rejected, EPA has 

frequently refused to apply the 

$/deciview metric in accordance with 

the BART Guidelines. The Guidelines 

expressly allow states to evaluate 

control technologies based on ‘‘costeffectiveness measures (such as 

$/deciview),’’ 70 FR 39170, but EPA has 

generally opposed reliance on such a 

standard by the states. While 

acknowledging that the dollar per 

deciview is ‘‘an additional cost 

effectiveness metric that can be 

employed along with $/ton for use in a 

BART evaluation,’’ EPA has not used 

$/deciview because it is ‘‘unnecessary,’’ 

it ‘‘complicates the BART analysis,’’ and 

it is ‘‘difficult to judge.’’ 77 FR 57871. 

In other rulemakings, EPA has stated 

that ‘‘[w]e do not generally recommend 

the use of this metric as it can be 

complicated to use and the results can 

be difficult to assess.’’ 77 FR 76871, 

76873 (Dec. 31, 2012). EPA also has 

objected to the $/deciview metric 

because it claims that metric is based on 

the impacts of a single day. 77 FR 

57871. 

EPA’s reasons for refusing to consider 

the $/deciview metric are frivolous. 

Even if the $/deciview metric is 

complicated or difficult to use, that does 

not distinguish it from any other aspect 

of the BART determination process. 

EPA’s concern that the $/deciview 

metric is based on a single day holds no 

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230The preamble to the BART Guidelines state, 

‘‘[e]ven though the visibility improvement from an 

individual source may not be perceptible, it should 

still be considered in setting BART because the 

contribution to haze may be significant relative to 

other source contributions in the Class I area. Thus, 

we disagree that the degree of improvement should 

be contingent upon perceptibility. Failing to 

consider less-than-perceptible contributions to 

visibility impairment would ignore the CAA’s 

intent to have BART requirements apply to sources 

that contribute to, as well as cause, such 

impairment’’ (70 FR 39104, 39129, July 6, 2005). 

water. EPA sometimes bases the 

visibility improvement (delta deciview) 

of potential control technologies on the 

‘‘maximum 98th percentile impact,’’ 

meaning the 98th percentile day with 

the highest deciview improvement 

during the relevant period, and 

proposes to do so in its analysis of 

Laramie River. 78 FR 34775. Indeed, it 

is that day’s deciview improvement 

which is used to calculate $/deciview. 

The $/deciview metric has the virtue of 

directly comparing cost to visibility 

improvement. It would constrain EPA’s 

current use of a nebulous sliding scale 

where the agency gives itself the 

latitude to point to any one of several 

variables as justification for overriding 

the State’s choice of BART or for making 

its own. 

Response: We disagree that our 

reasons for not considering the 

$/deciview metric are frivolous. We 

maintain that, for the reasons discussed 

in other regional haze actions, as cited 

by the commenter, the $/deciview 

metric is problematic and does not offer 

any better basis for making BART 

determinations than those used by EPA 

here—cost effectiveness, incremental 

cost effectiveness, and visibility 

improvement. Moreover, the BART 

Guidelines do not require EPA or the 

states to conduct a $/deciview analysis 

when evaluating the visibility 

improvement factor. Instead, the BART 

Guidelines allow flexibility in this area, 

stating that: ‘‘You have flexibility to 

assess visibility improvements due to 

BART controls by one or more methods. 

You may consider the frequency, 

magnitude, and duration components of 

impairment.’’ 70 FR 39170. While the 

BART Guidelines suggest cost per 

deciview as a possible parameter for 

consideration, its use is entirely 

discretionary. There are numerous 

examples of BART analyses conducted 

by states and EPA that have not 

calculated this metric. 

Comment: The Laramie River Station 

began commercial operation in July, 

1980, with a permitted limit for NOX

emissions of 0.71 lb/MMBtu. However, 

Laramie River was able to significantly 

outperform its permitted limits, 

achieving an average emission rate that 

was much lower, approximately 0.45 

lb/MMBtu. In 1996 and 1997, Laramie 

River replaced burner nozzles on all 

three units and again reduced its NOX

emission rates, to an average of about 

0.27 lb/MMBtu. Now, pursuant to 

Wyoming’s BART permit, Laramie River 

is required to further reduce its NOX

emissions to a limit of 0.21 lb/MMBtu 

and 14,474 tons/year in 2014, and 

reduce emissions even further by the 

end of 2017, to 12,773 tons/year 

(equivalent to 0.158 lb/MMBtu). By 

2017, the Wyoming regional haze SIP 

will have required the station to reduce 

its NOX emission rate by 65% from the 

NOX rate emitted when the units were 

originally started up. This demonstrates 

that the State has achieved very 

substantial NOX emission reductions 

without undue and wasteful expense. 

To put the reductions already 

achieved in perspective, the 

combination of past reductions and 

future required reductions results in 

total NOX reductions at Laramie River of 

0.29 lb/MMBtu (from 0.45 lb/MMBtu to 

0.158 lb/MMBtu). This has been done 

and will be done at a significant but 

reasonable cost. In contrast, EPA 

proposes to require the expenditure of 

nearly $750 million dollars to reduce 

NOX emissions further, from 

0.158 1b/MMBtu to 0.05 lb/MMBtu, a 

reduction of only 0.11 lb/MMBtu, less 

than half of what has already been 

accomplished. 

Response: We disagree with this 

comment. The RHR and BART 

Guidelines instruct states to calculate 

the cost-effectiveness and visibility 

improvement associated with the 

various control options against a 

realistic emissions baseline. For the 

purposes of BART, most states, 

including Wyoming, used a baseline 

period of 2000–2004, which 

corresponds to the five-year period that 

followed the promulgation of the RHR. 

Setting a baseline that predates the 

promulgation of the RHR, as the 

commenter suggests, would be 

inappropriate because it would allow 

emission reductions that were achieved 

as the result of compliance with other 

CAA programs to be attributed instead 

to BART. Thus, any reductions achieved 

at Laramie River between 1980 and 1997 

cannot be credited to the source owner, 

but must be incorporated into the 

baseline, as both the State and EPA 

properly did in this case. In regards to 

reductions achieved at Laramie River 

that have been or will be achieved due 

to compliance with the State’s BART 

determination, these reductions will 

also occur under EPA’s FIP. 

Consequently, a more accurate way of 

comparing the State’s regional haze SIP 

to EPA’s FIP is to subtract the ultimate 

emission rate achieved by each plan 

from the baseline. Using the 

commenter’s emission rates, the State’s 

regional haze SIP would reduce 

emissions at Laramie River by 0.112 

lb/MMbtu from the baseline, while 

EPA’s FIP will reduce emissions by 0.22 

lb/MMbtu. For a more detailed 

discussion of baseline emissions and the 

flaws in the commenters’ logic, see our 

response to similar comments on the 

consideration of existing controls in use 

at a source. 

Comment: The costs of installation of 

the SCRs at Laramie River Station 

impose an economic impact that is 

unjustified by the facts of this case. The 

regulation of regional haze is focused on 

improving visibility, not public health. 

Yet, the improvement in visibility that 

EPA suggests will be created by 

installation of SCRs, as opposed to the 

Wyoming SIP’s LNBs/OFA, does not 

carry with it a significant improvement 

in visibility. By EPA’s own calculations, 

installation of SCRs will result in only 

a 0.79 deciview visibility improvement 

at the most impacted Class I area, 

Badlands National Park, and those 

calculations substantially overstate the 

visibility improvement that would 

actually be achieved. By its very 

definition, this small incremental 

improvement in visibility is not even 

perceptible by the human eye. 

Response: We disagree with this 

comment. As stated in section IV.C.5 

above, even though the visibility 

improvement from an individual source 

may not be perceptible, it should still be 

considered in setting BART because the 

contribution to haze may be significant 

relative to other source contributions in 

the Class I area. Thus, we disagree that 

the degree of improvement should be 

contingent upon perceptibility. Failing 

to consider less-than-perceptible 

contributions to visibility impairment 

would ignore the CAA’s intent to have 

BART requirements apply to sources 

that contribute to, as well as cause, such 

impairment.230

Comment: EPA asserts that 

Wyoming’s alleged ‘‘deviations’’ from 

the BART Guidelines and CCM form 

adequate grounds for rejection of its 

SIP—yet the BART determinations 

included in EPA’s proposed FIP eschew 

the very standards to which it holds the 

State. EPA’s estimate of the ‘‘cost of 

compliance’’ for installation of SCR and 

SNCR at Laramie River Station is 

grounded in an outside consultant’s 

report that expressly dismisses the 

recommendations of EPA’s own CCM in 

favor of a methodology that is 

inconsistent with the directives of the 

BART Guidelines and fails to account 

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5180 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

for critical site-specific factors that 

affect the cost of these technologies at 

Laramie River. The resulting cost 

estimates are not representative of the 

costs that Basin Electric would incur for 

the installation of SCR and SNCR and 

do not form a legally supportable basis 

on which to promulgate a FIP. To 

finalize a FIP based on the cost 

effectiveness estimates in the Andover 

Report would constitute arbitrary and 

capricious decision making and would 

run contrary to the same provisions of 

law on which EPA bases its disapproval 

of Wyoming’s SIP. 

The Andover Report uses a high-level 

model that was never intended to be 

used to estimate site-specific costs. But 

neither Andover nor EPA offers any 

explanation of why reliance on the IPM 

model is more appropriate than either 

the CCM recommendations or a sitespecific scoping level study such as the 

Sargent & Lundy Evaluation. Indeed, 

EPA’s preamble notes that the cost 

estimate relied primarily on the IPM 

model, but then simply parrots the 

conclusions of the Andover Report 

without further analysis or discussion. 

Although EPA has the discretion to rely 

on a model of its choice, EPA’s reliance 

on the IPM model to estimate costs 

requires both an explanation of the 

assumptions made and a defense of this 

particular methodology—particularly 

because EPA has proposed disapproval 

of Wyoming’s SIP for failure to adhere 

strictly to the CCM methodology. See 

Appalachian Power, 249 F.3d at 1053. 

EPA has failed to ‘‘make plain its course 

of inquiry, its analysis and its 

reasoning’’ and therefore promulgation 

of a FIP based on the Andover Report 

would be arbitrary and capricious. 

Olenhouse, 42 F.3d at 1575. 

EPA’s BART determinations relied 

upon methodology that does not comply 

with the BART Guidelines. Specifically, 

Andover did not adhere to the threestep process in the BART Guidelines for 

estimating the ‘‘costs of compliance’’ 

because the analysis set forth in the 

report did not adequately define the 

emission units being controlled, failed 

to identify site-specific design 

parameters that affect cost and 

performance of the controls, and used 

the IPM model to develop cost estimates 

that are neither technically defensible 

nor representative of the costs of SCR 

and SNCR systems at Laramie River. 

First, Andover’s use of the IPM 

model—which requires only four 

inputs—is so general that it failed to 

adequately define the operating 

parameters of Laramie River Station 

Units 1 through 3. Second, both the IPM 

model and Andover’s manipulation of 

the cost algorithms ignored numerous 

site-specific variables that would have a 

substantial effect on the costs incurred 

by Basin Electric. These variables 

include, among other items, failure to 

account for the elevation of Laramie 

River and the complexities of SCR at the 

facility. Finally, Andover used out-ofdate and inaccurate emissions from 

Laramie River Units 1 through 3 on 

which to base its cost effectiveness 

analysis. These emissions estimates did 

not take into consideration the 

reductions that result from the 

installation of OFA and LNB at these 

units, which have reduced the baseline 

NOX emissions to 0.19 lb/MMBtu. As a 

result of these inadequacies, the 

Andover Report makes inaccurate cost 

estimates that are not representative of 

the costs that Basin Electric would incur 

for installation of either SNCR or SCR. 

By relying on the Andover Report, EPA 

has ‘‘complete[ly] failed to consider the 

criteria that should inform’’ its BART 

determination, and a court would 

accord EPA’s BART determination no 

deference and would determine that it 

is arbitrary, capricious, an abuse of 

discretion and not in accordance with 

the law. Nat. Resources Defense 

Council, 725 F.2d at 771; see also 

Appalachian Power, 249 F.3d at 1052; 

Sierra Club v. Costle, 657 F.3d at 333. 

Response: Each of the commenter’s 

claims have been addressed above in 

other responses and elsewhere in this 

document. In these responses we have 

substantiated that the cost methodology 

employed by EPA, including use of the 

IPM-based cost algorithms, is consistent 

with the BART Guidelines and CCM. 

Moreover, we modified our cost 

estimates in response to site-specific 

information provided by Basin Electric 

during the comment period. Therefore, 

we reject the commenter’s assertions 

that (1) we have dismissed the 

recommendations of the CCM in favor of 

a methodology that is inconsistent with 

the directives of the BART Guidelines, 

and (2) failed to account for critical sitespecific factors. 

We have addressed the commenter’s 

concern regarding whether our costeffectiveness analysis reflects the 

relatively lower emissions achieved 

with recent combustion control updates 

(OFA and LNB) in section V.A.12 above. 

Comment: Wyoming concluded that 

SCR would lower the NOX emission rate 

of Laramie River Units 1–3 to 0.07 lbs/ 

MBtu on a 30-day rolling average basis 

and used the 0.07 lbs/MMBtu controlled 

NOX rate to estimate costs. 78 FR 34748; 

WDEQ Revised NOX BART Impact 

Analysis AP–6047A (January 3, 2011) 

(‘‘2011 Revised BART Analysis’’) at 3, 

Table 2–2, docket cite EPAR08–OAR– 

2012–0026–0003. 

The State’s administrative record 

supports its selection of 0.07 lb/MMbtu 

on a 30-day rolling average as an 

appropriate post-SCR NOX emissions 

rate. Wyoming first presented this 

emissions rate in its BART Application 

Analysis AP–6047. Wyoming BART 

Analysis at 8, Table 2. Wyoming 

explained its rationale in its December 

31, 2009 response to comments on 

BART Permit AP–6047. Available at 

EPA–R08–OAR–2012–0026–0058, 

Exh. 3. 

Wyoming then provided a table 

comparing SCR control efficiencies at 

seven similar coal fired EGUs. The NOX

emission rate selected by Wyoming is 

squarely within the range of control 

efficiencies identified by the State’s 

search. Of note are the NOX emission 

rates for the Iatan Station (0.08 lb/

MMbtu, 30-day average), Big Cajun II 

Power Plant (0.07 lb/MMBtu annual 

average), and OPPD—Nebraska City 

Station (0.07 lb/MMbtu, 30-day 

average). Id. Wyoming’s explanation 

and supporting data negate any 

contention that the State violated the 

CAA or acted unreasonably when it 

chose to evaluate SCR using a NOX

control efficiency of 0.07 lb/MMbtu on 

a 30-day rolling average basis. 

EPA contends that whereas Wyoming 

assumed that adding SCR controls at 

Laramie River would achieve a control 

effectiveness of 0.07 lb/MMBtu, ‘‘EPA 

has determined that on an annual basis 

SCR can achieve emission rates of 0.05 

lb/MMBtu or lower.’’ 78 FR 34748. EPA 

provides no explanation and cites 

nothing to support how it ‘‘determined’’ 

this to be the case. It doesn’t associate 

the 0.05 lb/MMBtu with any specific 

facility or unit—it just makes this 

blanket assertion. 

Nor can EPA assert that Wyoming’s 

0.07 lb/MMBtu assumed control level 

conflicts with the CAA or the BART 

Guidelines. Nothing in the Guidelines 

dictates what SCR can achieve, and EPA 

cites no provision of the Guidelines to 

support its claim. In fact, EPA’s blanket 

claim that 0.05 lb/MMBtu must always 

be used itself conflicts with the 

Guidelines, which make clear that 

BART is a site-specific determination, 

not a blanket finding. The notion that 

EPA can apply an across-the-board 

value and thereby deprive the State of 

its ability to exercise discretion on an 

individual case basis is contrary to the 

holding in American Corn Growers, 291 

F.3d at 7–10. 

The lack of support for EPA’s claim 

that the 0.07 lb/MMBtu is a ‘‘flaw’’ is 

reinforced by EPA’s own acceptance of 

this value in BART analyses by other 

States. For example, in Colorado, 

commenters on EPA’s proposed 

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approval of the State’s regional haze 

SIP, including BART determinations, 

argued that the State was wrong in 

assuming that at Tri-State’s Craig 

Station Units 1 and 2, SCR would 

achieve only a 0.07 lb/MMBtu NOX

emission rate on an annual basis; 

however, EPA did not disapprove 

Colorado’s BART determinations for 

this reason or find that this was an error. 

EPA’s response to the comments stated 

that it agreed that ‘‘SCR in some cases 

can achieve annual NOX emission rates 

as low as 0.05 lb/MMBtu’’ but that the 

‘‘annual emission rate assumed by 

Colorado, 0.07 lb/MMBtu, is within the 

range of actual emission rates 

demonstrated at similar facilities in 

EPA’s Clean Air Markets Division 

(CAMD) emission database.’’ 77 FR 

76871, 76873. Similarly, although 

commenters argued that SCR at Alaska’s 

Healy Unit 1 could achieve a NOX

emission rate of 0.035 lb/MMBtu, EPA 

evaluated using a rate of 0.07 lb/MMBtu 

to evaluate SCR. 78 FR 10546, 10548. 

EPA evaluated SCR using an emission 

rate of 0.06 lb/MMBtu for Nevada’s Reid 

Gardner Generating Station. 77 FR 

21896, 21903 (calling this a ‘‘mid-range 

option’’). 

Also, EPA accepted an even higher 

post-SCR NOX emission rate of 0.10 lb/ 

MMBtu for Jeffrey Energy Center Units 

1 and 2. Kansas SIP Approval, 76 FR 

80754, 80756. This emission rate was 

‘‘within the range of effectiveness that 

the State believed to be reasonable as a 

retrofit control on older tangential-fired 

units.’’ Id. EPA deferred to Kansas, 

noting that ‘‘EPA believes the State’s 

decision to choose a control efficiency 

within the middle of the range for the 

purpose of estimating cost is a 

reasonable approach and is acceptable 

according to the BART Guidelines.’’ Id. 

If it was not error and not unreasonable 

or arbitrary for Colorado and Kansas to 

use 0.07 or 0.10 lb/MMBtu, it cannot be 

error, or unreasonable, or arbitrary, for 

Wyoming to use the same or lower 

value. 

Response: We have addressed the 

control effectiveness of SCR above in 

section V.C.3 above. Again, we agree 

that it was appropriate for Wyoming to 

set the 30-day rolling average emission 

limit for SCR installations at 0.07 lb/

MMBtu. And again, EPA’s use of an 

actual annual emission rate of 0.05 lb/ 

MMBtu for cost calculation purposes is 

supported by information supplied by 

control equipment consultants or 

vendors and submitted along with 

comments from PacifiCorp and Basin 

Electric. 

We also note that the commenter has 

compared the 30-day allowable rates 

established at certain facilities to the 

annual emission rate used by EPA to 

calculate cost effectiveness. These 

values are not directly comparable. This 

is because: (1) The former is on a 30-day 

basis, while the latter is on an annual 

basis, and (2) the former is an allowable 

emission limit, while the latter is an 

actual emission rate. 

The remaining comments have been 

addressed elsewhere in this document. 

Comment: For the same reasons that 

SNCR is not a relevant basis for 

disapproving Wyoming’s BART for 

Laramie River Station, the price of urea 

is likewise not relevant. The price of 

urea relates only to SNCR technology, 

not to SCR. As noted above, SNCR is not 

a relevant factor to support EPA’s 

rejection of the State’s NOX BART for 

Laramie River Station because neither 

the State’s SIP nor EPA’s proposed FIP 

chooses SNCR as BART. SNCR has been 

taken off the table by EPA, so the 

attempt to base its BART disapproval on 

SNCR issues is specious. EPA cannot 

reasonably base its disapproval on the 

State’s alleged failure to properly 

consider the cost of a technology that 

EPA itself rejects. 

Response: We disagree. The BART 

selection process requires a comparison 

between all technically feasible control 

options, not the evaluation of individual 

control technologies in isolation. While 

the BART Guidelines do not specify the 

order in which control options must be 

evaluated (e.g., beginning with the most 

stringent or beginning with least 

stringent control), they do specify that 

the CAA factors must be considered for 

all options: ‘‘In the final guidelines, we 

have decided that States should retain 

the discretion to evaluate control 

options in whatever order they choose, 

so long as the State explains its analysis 

of the CAA factors.’’ 70 FR 39130. The 

only exceptions are ‘‘. . . if you find 

that a BART source has controls already 

in place which are the most stringent 

controls available . . .’’, or ‘‘. . . . if a 

source commits to a BART 

determination that consists of the most 

stringent controls available . . .’’ 70 FR 

39165. In these situations, it is not 

necessary to complete an analysis of all 

five BART factors. Therefore, because 

neither of these criteria was met, the 

State was required to perform an 

analysis of all five BART factors for all 

technically feasible control options. 

And if, as EPA has established in other 

responses, the analysis of one of those 

options, such as SNCR, was flawed, 

then the State could not sensibly 

identify the best available option among 

all of the control options considered. 

Therefore, regardless of whether the 

State or Wyoming rejected SNCR as 

BART, it is mistaken for the commenter 

to suggest that the analysis of SNCR was 

somehow immaterial in the selection of 

BART. 

It is particularly important that the 

costs of SNCR be properly estimated in 

relation to the calculation of 

incremental cost effectiveness. (The 

incremental cost of effectiveness should 

be calculated in addition to the average 

cost effectiveness. 70 FR 39167). The 

cost of SNCR affects the incremental 

cost effectiveness between SCR and 

SNCR, as well as incremental cost 

effectiveness between SNCR and 

combustion controls. If the cost of SNCR 

is incorrect, the incremental cost 

effectiveness between control options 

will also be incorrect. This underscores 

the point that, if the underlying 

assumptions were flawed, the State 

could not have reasonably chosen 

between competing control options. 

We have addressed the price of urea 

in a separate response. 

Comment: EPA is proposing that the 

FIP NOX BART emission limit for Basin 

Electric Laramie River Unit 1, Unit 2, 

and Unit 3 is 0.07 lb/MMBtu (30-day 

rolling average). While we are generally 

pleased with EPA’s proposal, we note 

that EPA’s analysis is based on only 

74% NOX control by the SCRs, and still 

results in each EGU contributing 0.5 

deciview to visibility impairment at 

Badlands National Park. 

Based on an evaluation of the rolling 

30-boiler operating day average NOX

emission rates from Laramie River Units 

1–3 with emissions data available in 

EPA’s CAMD database, a NOX limit of 

0.07 lb/MMBtu on a rolling 30-boiler 

operating day basis would only require 

Laramie River Units 1–3 to achieve 

61–70 percent NOX removal across the 

SCR systems. A 0.05 lb/MMBtu NOX

emission limit applicable on a rolling 

30-boiler operating day average basis 

would only require 73–79 percent NOX

removal across the SCR, which is 

readily achievable. 

Response: We have addressed the 

control effectiveness of SCR above in 

section V.C.3 above. 

Comment: Moreover, the Sargent & 

Lundy evaluation demonstrates, based 

on a detailed scoping-level cost 

analysis, that SCR will cost 

approximately $9,000 per ton of NOX

removed, further demonstrating the 

arbitrariness of EPA’s proposed 

disapproval of the State’s NOX BART 

determination for Laramie River Station. 

Sargent & Lundy Evaluation, Table 7. 

Response: We disagree that SCR will 

cost $9,000/ton as indicated by the 

commenter. We have incorporated 

certain costs claimed by Sargent & 

Lundy in their evaluation, but not 

others. We have addressed the Sargent 

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& Lundy cost analysis, including our 

rationale for not accepting certain costs, 

in detail in other responses. Our revised 

cost analysis of SCR plus combustion 

controls, indicates that the cost 

effectiveness for the three units is 

between $4,375/ton and $4,461/ton. 

Comment: EPA should have used 30- 

day average emission limits in the cost 

effectiveness analysis, rather than 

expected/actual emission rates, to be 

consistent with how EPA and states 

have done other BART cost 

effectiveness calculations. 

Response: We disagree. As we have 

stated in other responses, our use of the 

anticipated actual annual emission rate 

is consistent with the BART Guidelines. 

As we previously noted, cost 

effectiveness is more appropriately 

based on the reduction in annual 

emissions, not the change in allowable 

emissions. 

Comment: We received a comment 

that EPA’s consultant did not take into 

account site-specific data for Laramie 

River Station. 

Response: We have addressed this 

issue in a separate response. As noted 

there, we have incorporated many of the 

costs suggested by Basin Electric’s 

consultant, Sargent and Lundy, in our 

revised costs supporting this final 

action. 

Comment: Wyoming has 

underestimated the cost of SNCR. 

Wyoming estimated LNB+OFA+SNCR 

would cost $2,056–$2,109/ton. EPA 

calculated the incremental costs of SCR 

versus LNB+OFA+SNCR, its preferred 

control option, and estimated 

incremental costs of $7,054–$7,242/ton. 

We are concerned that Wyoming 

underestimated the cost of SNCR, which 

biases its emphasis on incremental costs 

against SCR. We calculated the costs of 

SNCR using the CCM (with the reagent 

correction used by EPA for Montana), 

and heat inputs and emission estimates 

from CAMD data for 2001–2003. Based 

upon application of the CCM, we 

estimate SNCR cost-effectiveness at 

$2,358–$2,536/ton, which is $300– 

$400/ton higher than Wyoming’s 

estimates. 

Response: We agree that Wyoming has 

underestimated the cost of SNCR for the 

Laramie River Station units. In order to 

address deficiencies in Wyoming’s 

SNCR cost estimates for the Laramie 

River Station units identified by 

commenters, such as the control 

effectiveness of SNCR, we have 

conducted a revised cost analysis. 

Comment: Wyoming has 

underestimated the ability of SCR to 

reduce emissions. In estimating the 

annual cost-effectiveness of the 

LNB+OFA+SCR option, Wyoming 

assumed 0.07 lb/MMBtu, which 

represents 74% control efficiency on an 

annual average basis, as opposed to the 

generally-accepted 90%. Wyoming has 

not provided any documentation or 

justification to support the higher 

emission rates used in its analyses. In 

other recent BART actions, EPA has 

determined that SCR can achieve 0.05 

lb/MMBtu on an annual basis. Such an 

underestimate at Laramie River Station 

biases the cost-benefit analysis against 

SCR and is inconsistent with other EPA 

analyses. 

Response: The commenter has 

incorrectly assumed that a 90% control 

efficiency can be achieved in all SCR 

applications regardless of the input NOX

emission rate or other parameters. In 

addition, we note that the emission rate 

analyzed by Wyoming, 0.07 lb/MMBtu, 

was on a 30-day rolling average basis, 

not an annual basis. Regardless, we 

agree that SCR can in most cases 

achieve a performance rate of 0.05 lb/

MMBtu on an annual basis. (See the 

section IV.C.4 of this document for more 

information regarding the control 

effectiveness of SCR). We have revised 

the SCR costs for the Laramie River 

Station units accordingly. 

Comment: The final state BART 

determination sets NOX emission limits 

of 0.21 lb/MMBtu, 30-day average, and 

related lb/hour and tons/year limits. 

However, EPA does not analyze these 

limits and find they are unreasonable. It 

analyzes instead a NOX emission limit 

of 0.23 lb/MMBtu, which is not the 

actual final BART limit but rather an 

initial limit in the BART permit that 

was appealed and was changed in the 

settlement of that appeal and 

incorporated in the final SIP. Therefore, 

EPA’s disapproval pertains to a BART 

limit that is different than the actual 

BART limit. Using the wrong BART 

limit is arbitrary and unreasonable. 

Response: In our revised cost and 

visibility analyses for the Laramie River 

Station BART units, we have addressed 

the issue described by the commenter. 

However, we have not analyzed the 0.21 

lb/MMBtu limit directly as it is assessed 

on a 30-day rolling average basis. 

Instead, as described above, we have 

used the actual annual emission rate of 

0.19 lb/MMBtu demonstrated since the 

installation of new LNBs and OFA. Our 

approach is consistent with the BART 

Guidelines which state: ‘‘. . . you will 

estimate the anticipated annual 

emissions based upon actual emissions 

from a baseline period.’’ 70 FR 39167. 

Comment: The purpose of the regional 

haze program is to improve visibility in 

Class I areas. The amount of emission 

reductions by itself, without any 

connection to visibility improvement, is 

irrelevant because without some 

connection to visibility improvement 

we cannot judge the significance of such 

reductions in light of the ‘‘overarching 

purpose of the regional haze program’’ 

to protect visibility in Class I areas. 

Since EPA acknowledges that SNCR 

would not improve visibility by a 

perceptible amount, the amount of NOX

emission reductions standing alone does 

not further the purpose of the program. 

Response: We disagree that the 

visibility improvements for Laramie 

River Station are de minimis or too 

small to justify the expense of requiring 

controls. The BART Guidelines are clear 

that it is not necessary for the visibility 

improvement of a particular control 

option to be above the perceptible 

threshold: ‘‘Even though the visibility 

improvement from an individual source 

may not be perceptible, it should still be 

considered in setting BART because the 

contribution to haze may be significant 

relative to other source contributions in 

the Class I area. Thus, we disagree that 

the degree of improvement should be 

contingent upon perceptibility. Failing 

to consider less-than-perceptible 

contributions to visibility impairment 

would ignore the CAA’s intent to have 

BART requirements apply to sources 

that contribute to, as well as cause, such 

impairment.’’ 70 FR 39129. 

EPA followed the BART Guidelines in 

determining what BART was for each 

unit, taking into account the five factors, 

including visibility improvement and 

the cost effectiveness of controls (which 

includes an assessment of the dollars 

per ton removed). 

2. Jim Bridger Units 1–4 

a. NOX BART Determination 

Comment: In estimating the annual 

cost-effectiveness of the LNB/

SOFA+SCR option, Wyoming assumed 

0.07 lb/MMBtu on an annual average 

basis. Based on the 0.026 lb/MMBtu 

NOX emission rate predicted for the 

LNB/SOFA option, and the 0.20 lb/

MMBtu annual emission rates 

demonstrated by all four Bridger units, 

outlet emissions at 0.07 lb/MMBtu 

represent only a 65%–73% SCR control 

efficiency as opposed to the generallyaccepted 90%. Wyoming has not 

provided any documentation or 

justification to support the higher 

emission rates used in its analyses. In 

other recent BART actions, EPA has 

determined that SCR can achieve 0.05 

lb/MMBtu on an annual basis. Such an 

underestimate at Bridger biases the costbenefit analysis against SCR and is 

inconsistent with other EPA analyses. 

Response: The commenter has 

incorrectly assumed that a 90% control 

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efficiency can be achieved in all SCR 

applications regardless of the input NOX

emission rate or other parameters. In 

addition, we note that the emission rate 

analyzed by Wyoming, 0.07 lb/MMBtu, 

was on a 30-day rolling average basis, 

not an annual basis. Nonetheless, we 

agree that SCR can, in most cases, 

achieve a performance rate of 0.05 lb/

MMBtu on an annual basis. 

Comment: Based on an evaluation of 

the rolling 30-boiler operating day 

average NOX emission rates from Jim 

Bridger Units 1–4 over the period of 

January 1, 2011 through March 31, 2013 

with emissions data available in EPA’s 

CAMD, a NOX limit of 0.07 lb/MMBtu 

on a rolling 30-boiler operating day 

basis would only require Jim Bridger 

Units 1–4 to achieve 66–68 percent NOX

removal across the SCR systems. The 

commenter asserted that a 0.05 lb/

MMBtu NOX emission limit applicable 

on a rolling 30-boiler operating day 

average basis would only require 75–77 

percent NOX removal across the SCR, 

which the commenter believes is readily 

achievable. (The commenter’s 

arguments regarding the achievable 

level of NOX control with SCR are 

summarized elsewhere in this 

document.) 

Response: We have addressed the 

control effectiveness of SCR above in 

section V.C.3 above. 

Comment: EPA’s reliance on selected 

‘‘affordability’’ language in its BART 

Guidelines does not support EPA’s 

decision to exempt all Jim Bridger from 

SCR BART requirements. First, Congress 

established five factors—no more—that 

EPA must consider when making 

source-by-source BART determinations. 

42 U.S.C. 7491(g). Applying those five 

factors alone, EPA determined that SCR 

was BART for all four Bridger Units. 78 

FR 34756. By considering the 

‘‘affordability’’ of BART controls across 

PacifiCorp’s entire fleet, EPA has 

arbitrarily relied on factors which 

Congress has not intended it to 

consider. Motor Vehicle Mfrs. Ass’n v. 

State Farm Mut. Auto. Ins. Co., 463 U.S. 

29, 43 (1983f); Pac. Coast Fed’n of 

Fishermen’s Ass’ns, Inc. v. Nat’l Marine 

Fisheries Serv., 265 F.3d 1028, 1034 (9th 

Cir. 2001); see also North Carolina v. 

Envtl. Prot. Agency, 531F.3d 896, 906 

(D.C. Cir. 2008) (standard of review is 

the same under the APA and the CAA, 

42 U.S.C. 7607). 

Response: We disagree with the 

commenter that when considering the 

five factors alone, SCR is BART on all 

the Jim Bridger units. As discussed in 

section III.B.6 above, when considering 

the five factors, we find it unreasonable 

to require SCR as BART on these two 

units and instead we are approving the 

State’s LTS for (all four or Units 1 and 

2) the Jim Bridger units. We are not 

relying on the affordability analysis in 

making this final determination. 

Comment: 40 CFR part 51, Appendix 

Y, section IV.E.3 makes clear that the 

affordability analysis should be limited 

to the economic impact of the BART 

unit at issue—not to a utility’s fleetwide BART obligations as a whole. 

EPA’s application of this language to 

PacifiCorp’s BART obligations at other 

power plants is improper. In addition, 

the BART Guidelines establish a very 

narrow test for applying the 

affordability language, which is whether 

requiring installation of the control 

technology would ‘‘have a severe impact 

on plant operations.’’ 40 CFR part 51, 

app. Y, section IV.E.3. In such 

circumstances, the BART Guidelines 

suggest that EPA prepare ‘‘an economic 

analysis that demonstrates, in sufficient 

detail for public review, the specific 

economic effects, parameters, and 

reasoning.’’ EPA has not prepared an 

economic analysis demonstrating the 

specific economic, parameters, and 

reasoning for its decision to exempt the 

Jim Bridger facility from further BART 

controls. Instead, EPA simply concludes 

that ‘‘it would be unreasonable to 

require any further retrofits at this 

source within five years of our final 

action’’ based on PacifiCorp’s BART 

obligations at other facilities. 78 FR 

34756. Further, PacifiCorp has not 

presented evidence that installation of 

SCR at each Bridger unit within the first 

regional haze planning period would 

cause any noticeable economic impact, 

let alone ‘‘severe’’ impact, such a 

shutdown of one or all of the units. 

Response: As discussed in more detail 

in a response to another comment 

below, we agree that PacifiCorp has not 

provided sufficient evidence to show 

that the installation of SCR at the Jim 

Bridger units within five years after our 

final action would cause a severe 

economic impact. We are basing our 

decision to not require SCR for BART 

based on our weighing of the five 

factors. 

Comment: The BART Guidelines also 

suggest that if the agency grants an 

affordability exemption from the best 

level of control, it must then select a 

‘‘slightly lesser degree of control.’’ 40 

CFR part 51, app. Y, section IV.E.3. 

EPA’s proposal does not require any 

additional level of control under BART. 

Instead, EPA’s 2013 re-proposal selects 

the pre-existing LNB/OFA as BART for 

each unit. EPA’s choice of LNB/OFA as 

BART does not even represent the 

‘‘second best’’ control technology for 

eliminating NOX related visibility 

impairment—which would be SNCR. 78 

FR 34756 (Table 13). 

Response: As stated above, we are not 

basing our BART determination for Jim 

Bridger Units 1 and 2 on an affordability 

argument. 

Comment: The BART Guidelines 

‘‘affordability’’ language recommends 

that states (or EPA) consider ‘‘whether 

other competing plants in the same 

industry have been required to install 

BART controls if this information is 

available.’’ 40 CFR part 51, app. Y, 

section IV.E.3. This provision suggests 

that SCR requirements should be 

applied consistently among competing 

utility companies. EPA’s exemption of 

PacifiCorp from SCR obligations at the 

Jim Bridger units is inconsistent with its 

actions at other competing utility 

companies with large coal fleets, to 

which EPA has not offered 

‘‘affordability’’ exemptions from SCR 

requirements. For example, EPA has 

required Salt River Project, a competing 

utility, to install SCR on numerous coalplant units in its fleet, including 

Coronado and Navajo (Arizona), Craig 

and Hayden (Colorado) and Four 

Corners (New Mexico). Each of EPA’s 

BART determinations for these plants 

requires installation of SCR as BART 

within the mandated five-year 

implementation deadline. 

EPA’s 2013 re-proposal for Jim 

Bridger exempts the plant from both the 

SCR requirement and the five-year 

implementation deadline, potentially 

giving PacifiCorp an advantage over the 

competing utilities. Thus, EPA’s 2013 

re-proposal rule is not only inconsistent 

with its own BART Guidelines, it is 

competitively unfair. 

Response: We agree that other utility 

companies have had to install SCR 

within the five year BART window and 

that evidence provided by PacifiCorp 

does not support delaying controls on 

Jim Bridger Units 1 and 2 until 2022 and 

2021, respectively. Nonetheless, as 

stated earlier, we are no longer basing 

our BART determination for Jim Bridger 

Units 1 and 2 on an affordability 

argument. 

Comment: We are very familiar with 

the ‘‘affordability’’ provisions of the 

BART Guidelines and have dealt with 

this issue in Arizona (Apache power 

plant) and Washington (Alcoa’s Intalco 

primary aluminum smelter). In both of 

those cases, the company requesting the 

affordability exemption from BART 

provided extensive documentation 

(much of it confidential) to EPA and the 

FLMs to support its request. It was only 

after a thorough review by EPA that the 

affordability exemptions were approved. 

In this case, it appears that the only 

information presented by PacifiCorp to 

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5184 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

231 40 CFR Part 51, Appendix Y, section IV.E.5. 

232 70 FR 39132. 

233Wyoming Department of Environmental 

Quality Air Quality Division, BART Application 

Analysis AP–6040, May 28, 2009, pages 7–9. 

support its request is its ‘‘assertions’’ 

dated July 12, 2012. We believe that a 

more rigorous analysis is necessary in 

order for EPA, FLMs, and the public to 

be assured that the additional time 

being proposed by EPA is necessary and 

appropriate. For example, an important 

part of such an analysis would be the 

‘‘installation schedule’’ that PacifiCorp 

has designed in order to minimize the 

number of units that are out of service 

system-wide for installation of 

emissions controls at any one time. 

Currently, the only schedule available 

in the docket is the July 2012 letter from 

PacifiCorp to EPA in which PacifiCorp 

simply reiterates the dates proposed for 

its ‘‘Installation Requirements.’’ 

Response: As stated in other 

responses to comments, we agree that 

the information provided by PacifiCorp 

was not sufficient to support the delay 

of SCR controls on Jim Bridger Units 1 

and 2, but we are not relying on that 

information in our BART determination. 

Comment: EPA’s proposal for Jim 

Bridger Units 1 and 2 is a ‘‘do nothing’’ 

BART determination. Although the 

Agency claims that it is proposing to 

approve the State’s proposal to require 

the use of LNBs for Units 1 and 2 and 

for both units to meet an emission rate 

of 0.28 lb/MMBtu over a 30-day rolling 

period, this emission rate is actually 

higher than what Units 1 and 2 are 

currently emitting and worse, does not 

reflect the presumptive BART limits set 

forth in 40 CFR part 51, Appendix Y. 

Most significantly, it defies the statutory 

intent of Congress in establishing the 

regional haze program under the CAA. 

According to EPA’s CAMD Web site, 

both Units 1 and 2 already consistently 

achieve 30-day rolling average NOX

emissions lower than 0.20 lb/MMBtu. 

The data illustrates that Jim Bridger 

Units 1 and 2 consistently achieve NOX

emission rates below 0.20 lb/MMBtu on 

a monthly basis and have done so since 

2010. To this end, the definition of 

BART explicitly states that it must 

represent a ‘‘reduction’’ in each 

pollutant that causes or contributes to 

visibility impairment. See 40 CFR 

51.301 (setting forth definition of 

BART). 

Furthermore, although a state must 

take into account the five factors set 

forth under 42 U.S.C. 7491(g)(2), 

nothing in the CAA or the EPA’s 

regulations implementing the regional 

haze program suggest or remotely imply 

that a state could allow emission 

increases as BART. Accordingly, EPA 

must, at a minimum, disapprove of 

Wyoming’s NOX BART determinations 

for Jim Bridger Units 1 and 2 and adopt 

a FIP that establishes BART limits that 

are consistent with the CAA and that 

represent actual emission reductions. 

Response: We disagree with the 

commenter that BART is an emission 

limit of 0.07 lb/MMBtu at Jim Bridger 

Units 1 and 2 within five years of our 

final action. As discussed previously, 

based on our weighing of the five 

factors, we do not find it reasonable to 

require SCR for BART on Jim Bridger 

Units 1 and 2 and instead we are 

approving the State’s LTS for these 

units. 

Comment: The need to promulgate a 

FIP is underscored by the EPA’s own 

BART guidelines. According to those 

guidelines, tangentially fired boilers 

burning subbituminous coal, such as 

Jim Bridger Units 1 and 2, are presumed 

to be able to cost-effectively meet a NOX

emission rate of 0.15 lb/MMBtu on a 30- 

day rolling average basis. See 40 CFR 

part 51, Appendix Y, Table 1. EPA’s 

claim that it would not be cost-effective 

to meet an emission rate below 0.28 lb/ 

MMBtu as BART for Units 1 and 2 is 

therefore undercut by the Agency’s own 

extensive analysis and conclusion that a 

0.15 lb/MMBtu rate is presumed to be 

appropriate. Tellingly, the EPA nowhere 

in its proposed rule analyzes or 

addresses why a 0.28 lb/MMBtu rate is 

appropriate in light of the Agency’s own 

presumptive BART limits for NOX

emissions from tangentially-fired boilers 

burning subbituminous coal. 

Response: We disagree with the 

commenter’s assertion that our approval 

of non-presumptive BART emission 

limits for Jim Bridger Units 1 and 2 is 

flawed. In the BART Guidelines EPA 

explained that: 

For coal-fired EGUs greater than 200 MW 

located at greater than 750 MW power plants 

and operating without post-combustion 

controls (i.e. SCR or SNCR), we have 

provided presumptive NOX limits, 

differentiated by boiler design and type of 

coal burned. You may determine that an 

alternative control level is appropriate based 

on a careful consideration of the statutory 

factors. For coal-fired EGUs greater than 200 

MW located at power plants 750 MW or less 

in size and operating without postcombustion controls, you should likewise 

presume that these same levels are costeffective. You should require such utility 

boilers to meet the following NOX emission 

limits, unless you determine that an 

alternative control level is justified based on 

consideration of the statutory factors.231

Therefore, the presumptive emission 

limits in the BART Guidelines are 

rebuttable, and the five statutory factors 

enumerated in the BART Guidelines 

provide the mechanism for establishing 

different requirements. Specifically, as 

explained in the preamble to the BART 

Guidelines: 

If, upon examination of an individual EGU, 

a State determines that a different emission 

limit is appropriate based upon its analysis 

of the five factors, then the State may apply 

a more or less stringent limit.232

Thus, the establishment of 

presumptive BART emission limits does 

not preclude states or EPA from setting 

limits that differ from those 

presumptions, even where the control 

technology is the same as that 

associated with the presumptive limits 

(in this case, combustion controls). The 

five-factor analysis performed by 

Wyoming demonstrates that, because of 

the nature of the coal fired at these 

units, the presumptive limit of 0.15 lb/ 

MMBtu is not attainable. Wyoming 

supported this conclusion with 

information from an established vendor 

of combustion controls.233 We concur 

with those conclusions and find that 

Wyoming’s BART emission limits for 

Jim Bridger Units 1 and 2 were 

established in a manner consistent with 

the BART Guidelines. 

Comment: EPA’s proposal is 

fundamentally flawed because it makes 

a mockery of the CAA. Despite 

acknowledging that BART should be the 

installation of SCR and compliance with 

a 0.07 lb/MMBtu emission rate for Units 

1 and 2, the EPA determined that, when 

considering the cost of such controls, 

they would not be reasonable. Certainly, 

the CAA allows the EPA to consider the 

‘‘cost of compliance’’ in setting BART 

(42 U.S.C. 7491(g)(2)), but the CAA does 

not allow the EPA to completely avoid 

requiring BART based on cost 

considerations. Here, EPA’s proposal to 

approve Wyoming’s SIP with regards to 

BART for Jim Bridger Units 1 and 2 

amounts to a proposal to require 

nothing (if not a proposal to allow an 

increase in emissions). In essence, 

EPA’s proposal amounts to a 

determination that BART is not required 

for Jim Bridger Units 1 and 2, even 

though Congress clearly stated that 

these coal-fired EGUs are subject-toBART. Although Congress allowed the 

EPA to consider costs in establishing 

BART, the EPA cannot use costs as a 

reason to completely forego requiring 

BART. Put another way, the EPA cannot 

defeat Congress’ intent to require BART 

by cobbling together an interpretation of 

the CAA that effectively nullifies the 

regional haze BART requirements under 

the Act. 

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Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 5185 

Response: We disagree with the 

commenter. As discussed elsewhere, we 

are basing on approval of the State’s SIP 

on a weighing of the five BART factors, 

including costs and visibility 

improvement. 

Comment: EPA’s proposal for Jim 

Bridger Units 1 and 2 ‘‘does not meet a 

test for being ‘better than BART’. . . 

[because] [t]he accelerated installation 

of BART at Bridger Units 3 and 4 does 

not offset the increased emissions from 

delaying SCR installation at Bridger 

Units 1 and 2 beyond the normal fiveyear BART window.’’ To date, EPA has 

failed to make any demonstration that 

its 2013 Proposal would ‘‘achieve 

greater reasonable progress than would 

be achieved through the installation and 

operation of BART.’’ 40 CFR 

51.308(2)(i). Moreover, EPA’s proposal 

also fails to comply with the ‘‘better 

than BART’’ regulatory requirement 

mandating that ‘‘all necessary emission 

reductions take place during the period 

of the first LTS for regional haze’’ which 

concludes at the end of 2017. Id. section 

51.308(b), (e)(2)(iii). Accordingly, EPA’s 

proposal has not satisfied the regulatory 

requirements for a ‘‘better than BART’’ 

alternative. 

Response: We agree that EPA’s 

proposal does not meet a test for being 

better than BART but have not 

suggested such a concept in our 

proposed or final rulemaking actions. 

Comment: EPA’s proposed action on 

the Wyoming 308 regional haze SIP 

requested comments on whether to 

require installation of BART controls on 

Jim Bridger Units 1 and 2 by 2021–2022 

rather than within the legally required 

five-year timeframe mandated by the 

regional haze regulations. 77 FR 33054. 

EPA is taking comment on the 

alternative timeline for SCR installation 

in response to PacifiCorp’s claim that 

‘‘the schedule for installation of 

emission control devices envisioned in 

[EPA’s BART proposal] would be 

excessively costly and would pose 

service interruption risks for electrical 

energy customers over a large part of the 

region.’’ Recent admissions by a 

PacifiCorp official in a separate 

Wyoming Public Service Commission 

proceeding undermines PacifiCorp‘s 

arguments. PacifiCorp argued to the 

Wyoming Public Service Commission 

that procurement and installation of 

multiple SCRs creates both a cost and 

time savings, not an increase at Jim 

Bridger Units 3 and 4. This fact is also 

true for installation of SCRs at Jim 

Bridger Units 1 and 2. This PacifiCorp 

admission is further proof that EPA 

should not permit PacifiCorp to delay 

installation of SCRs at Jim Bridger Units 

1 and 2 and instead must require 

compliance within five years as is 

required by the BART regulations. 

Response: We have responded to this 

comment in other responses. 

Comment: EPA is taking comment on 

the alternative timeline for SCR 

installation in response to PacifiCorp’s 

claim that the schedule for installation 

of emission control devices envisioned 

in EPA’s BART proposal would be 

excessively costly and would pose 

service interruption risks for electrical 

energy customers over a large part of the 

region. EPA acknowledges that BART 

for all the units at Jim Bridger is SCR 

when the units are considered 

individually based on the five factors. 

However, EPA suggests that a different 

BART determination under the 

alternative approach is lawful if the five 

factors are considered across all the 

units in the PacifiCorp system. Not so. 

BART is a source-by-source 

determination. 

Response: We have responded to this 

comment in other responses. 

Comment: Considerations of 

PacifiCorp’s fleet size and cumulative 

costs are outside the five-factor analysis 

for BART. Furthermore, PacifiCorp’s 

concern about the feasibility of 

installing BART controls over its large 

fleet is unfounded. With proper 

planning, there is no reason to expect 

excessive costs or service interruption 

due to BART requirements. Indeed, 

PacifiCorp’s large number of EGUs 

would appear to give PacifiCorp the 

unique ability to avoid service 

disruptions by maintaining adequate 

capacity from operating units while 

other units are offline. Further, other 

utilities have installed SCR systems on 

multiple units within very short periods 

of time. 

PacifiCorp’s ability to install SCR on 

multiple units is also not constrained by 

the availability of SCR systems. In 

response to questioning of whether 

PacifiCorp has had any difficulties 

procuring or installing SCR systems, 

particularly an SCR for its Naughton 

Unit 3 facility, PacifiCorp stated it had 

received four proposals from SCR 

system suppliers and as such did not 

experience notable difficulties 

procuring and obtaining the SCR 

system. EPA should not modify its 

BART proposal for Jim Bridger Units 1 

and 2 based on PacifiCorp’s 

unsupported claims of hardship. 

Response: We have responded to this 

comment in other responses. 

Comment: The EPA’s re-proposed 

Wyoming haze plan reiterates EPA’s 

prior finding that BART is SCR for each 

Jim Bridger unit considered 

individually (78 FR 34756). Based on 

the EPA’s five-factor NOX BART 

analyses for Jim Bridger Units 1–4, the 

EPA must find that SCR is BART to 

meet a NOX emission rate of 0.05 lb/

MMBtu on all four units. 

The EPA’s cost-effectiveness analyses 

identified costs for SCR on all four 

Bridger Units that are within the range 

that EPA has identified as reasonable for 

other units, including in this same 

proposal. 78 FR 34754–57 (SCR costeffectiveness of $2,393/ton on Jim 

Bridger Unit 1, $3,015/ton on Unit 2, 

$2,961/ton on Unit 3, and $2,492/ton on 

Unit 4) as compared with, e.g., 78 FR 

34776 (finding cost-effectiveness of 

$3,600/ton to $3,900/ton for SCR on 

Laramie River Units 1–3 to be ‘‘within 

the range of what EPA has found 

reasonable for BART in other SIP and 

FIP actions’’). However, the EPA’s 

estimate of costs is significantly 

inflated, and the true costs are even 

lower than EPA found because the EPA 

used unjustified ‘‘retrofit factors,’’ 

interest rate, and auxiliary power costs. 

The recalculation of costs using what 

the commenter believes are corrected 

inputs resulted in significantly lower 

SCR costs of $1,801 to $1,959/ton at all 

four Bridger units. On this basis, SCR is 

extremely cost effective on these units. 

SCR on these units would afford 

substantial visibility benefits. The EPA 

has no basis in the BART factors, 

including the important factors of 

compliance costs and visibility 

improvement, to reject SCR as BART on 

Bridger Units 1–4. 

Response: As discussed elsewhere, we 

have responded to the commenter’s 

points about how costs are calculated 

for the BART units. Regardless, we 

determined that SCR was not reasonable 

for BART based on our weighing of the 

five factors. 

Comment: The EPA’s 1st Proposal 

from its June 2012 Proposal/2013 

Proposal in the Alternative, which 

would approve Wyoming’s NOX

emission limits and SCR compliance 

timeframes for Jim Bridger Units 3 and 

4 and would require Jim Bridger Units 

1 and 2 to install SCR within five years 

of EPA’s final action on the Wyoming 

regional haze plan, would result in 

lower NOX emissions on an annual basis 

than any of EPA’s other NOX proposals 

at the Jim Bridger Power Plant. This 

schedule also likely reflects the most 

economical installation of SCR at all 

four of the Jim Bridger units because the 

engineering for SCR installation, 

including the design of the construction 

phase, can all be done during the same 

time frame, the construction equipment 

can remain on-site for the duration of 

the installations, and much of the 

installation work can be done 

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5186 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

234See July 12, 2012 comments from PacifiCorp 

in the docket. 

simultaneously, which will save on 

labor and construction equipment. 

There are numerous examples of 

installations of multiple SCRs at 

numerous units at the same power plant 

site over short timeframes, including: (1) 

W.A. Parish Units 5–8 (SCRs installed 

over 2003–2004); (2) All four units of 

the Big Bend power plant (SCRs 

installed during 2007–2010); (3) Units 

1–5 of the Clifty Creek power plant 

(SCRs installed 2002–2003); (4) Winyah 

Units 1–4 (SCRs installed in 2005); (5) 

Over the period of 2001–2006, TVA has 

installed SCRs at 18 units at four power 

plants. On this basis, the number and 

timing of SCR installations required at 

PacifiCorp plants as a result of NOX

BART determinations can be 

accomplished, as it has been done 

before. 

Response: As stated above, we find 

that PacifiCorp has not presented 

sufficient evidence that the economic 

effects of installation of SCR on Jim 

Bridger Units 1 and 2 within five years 

would affect the viability of continued 

plant operations, but based on weighing 

of the five factors, we find that it is not 

reasonable to require SCR for BART. 

Comment: We agree with EPA that 

Wyoming’s proposal to require 

installation of SCR in 2021 and 2022 as 

part of Wyoming’s LTS does not satisfy 

the CAA or its implementing 

regulations. Having determined that 

SCR plus LNBs/SOFA is the best system 

of continuous emission control, is cost 

effective, and will result in significant 

visibility improvement, EPA is required 

to find that the controls are BART. 40 

CFR 51.308(e)(i)(2)(A). Under the RHR, 

BART must be installed ‘‘as 

expeditiously as practicable, but in no 

event later than five years after approval 

of the implementation plan revision.’’ 

40 CFR 51.308(e)(iv). Thus, EPA lacks 

discretion to approve Wyoming’s 

proposal to require PacifiCorp to install 

BART technology beyond the five-year 

time frame. 

Response: See responses above. 

Comment: PacifiCorp submitted 

comments in support of delaying 

controls on Jim Bridger Units 1 and 2 

until 2022 and 2021 respectively. (EPA 

issued a Notice of Data Availability 

pertaining to this information on July 

24, 2012. 77 FR 43205). The main points 

raised in their comments are as 

follows: 234

• Because of the size and multi-state 

nature of its generation fleet, PacifiCorp 

and its customers are unreasonably 

impacted by the RHR. PacifiCorp 

provides regulated electric service to 

more than 1.7 million customers in 

California, Idaho, Oregon, Utah, 

Washington and Wyoming with a net 

system capacity of 10,597 megawatts. 

PacifiCorp operates 75 generating units 

across the western U.S. PacifiCorp owns 

and operates 19 coal-fueled generating 

units in Utah and Wyoming, and owns 

100% of Cholla Unit 4, a coal-fueled 

generating unit in Arizona. In addition, 

PacifiCorp has an ownership interest in 

Craig Units 1 and 2 and Hayden Units 

1 and 2 in Colorado. 

• As evidenced by the emission 

reduction projects which PacifiCorp has 

already installed in accordance with the 

Utah and Wyoming regional haze SIPs, 

PacifiCorp is not opposed to making 

emission reductions that are cost 

effective for its customers and that 

achieve environmental benefits, as 

required by law. PacifiCorp has 

undertaken projects to comply with the 

Utah and Wyoming SIPs at a cost of 

approximately $1.3 billion (PacifiCorp’s 

share of $1.4 billion of total project 

costs) between 2005 and 2011. Those 

projects, in conjunction with projects 

completed through 2012, have reduced 

emissions of SO2 by approximately 58% 

and emissions of NOX by approximately 

46%. 

• Just as modeled visibility 

improvements associated with 

PacifiCorp’s emission reduction projects 

do not stop artificially at a state border, 

EPA’s analysis of the impacts of its 

proposed FIP for a large, multi-state 

system like PacifiCorp’s should not be 

limited to only those facilities and 

customers located within Wyoming’s 

borders. EPA’s actions impacting large, 

multi-state systems in one state must 

also consider the cumulative impacts of 

all of its actions in all other states that 

affect the same system. 

• Given the number of facilities 

operated by PacifiCorp and the facilities 

in which the company has an 

ownership interest in and is required to 

pay costs for the installation of regional 

haze-related controls, accelerated and 

additional controls under the proposed 

FIP result in approximately $500 

million of additional capital 

expenditures plus an incremental 

annual cost of $16–24 million to operate 

those controls in the next five years. In 

addition, an EPA proposal for stringent 

control requirements in Utah (i.e., SCR) 

within five years would add 

approximately $750 million in capital 

expenditures, plus approximately $7 

million to $9 million annually in 

operating costs and approximately $4 

million annually for catalyst 

replacement projects. All of these costs 

will be put on the backs of PacifiCorp 

and its customers in an extremely shorttime frame. 

• In addition to the regional haze 

requirements, PacifiCorp’s coal-fueled 

generating fleet, including the BARTeligible units, must accommodate 

controls for compliance with the 

Mercury and Air Toxics Standards 

(MATS) during the same timeframe. 

While the scrubbers and baghouses 

already installed at many of the 

PacifiCorp facilities pursuant to the 

Utah and Wyoming regional haze SIPs 

position the company well to comply 

with the acid gas and non-mercury 

metals limits under the MATS 

requirements, additional work will be 

necessary to comply with the mercury 

emission limits by April 2015. 

• PacifiCorp’s customers cannot 

absorb increasing environmental costs. 

To accommodate, among other cost 

increases, the costs of the environmental 

controls already installed on 

PacifiCorp’s coal-fueled generating 

facilities, PacifiCorp has filed with its 

utility regulatory authorities annual 

cases to increase customer rates. 

PacifiCorp’s customers have 

consistently participated in these cases 

to express concerns regarding increases 

in electric rates. While EPA may view 

its proposal to accelerate the installation 

of controls and require additional 

controls at PacifiCorp’s facilities as just 

another utility complaining to avoid the 

consequences of large investments in 

controls, EPA’s proposal has a very real 

impact on customers. 

• As a regulated utility, PacifiCorp 

has a legal obligation to supply reliable 

electric service at reasonable rates as set 

by state utility commissions; it also has 

a legal requirement to supply its 

customers as much electricity as they 

want, when they want it. While the 

installation of emissions controls on 

multiple units in a short period of time 

creates substantial challenges from a 

project management perspective, these 

challenges are exacerbated by increased 

risk factors that jeopardize PacifiCorp’s 

ability to meet its underlying utility 

obligations and challenge the reliability 

of the system. 

• When considered independently 

from other environmental requirements, 

the retrofits required under either 

regional haze compliance scenario are 

not anticipated to impose undue stress 

on the national supply chain for 

specialized labor, materials, and 

equipment. However, analyses of 

compliance with the MATS have raised 

concerns that requiring much of the U.S. 

coal fleet to retrofit or retire in a three 

to five year-time frame (partially 

overlapping the compliance time period 

under the regional haze program) will 

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Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 5187 

235Memorandum from Cynthia Giles, Assistant 

Administrator of the Office of Enforcement and 

Compliance Assurance, ‘‘The Environmental 

Protection Agency’s Enforcement Response Policy 

for Use of Clean Air Act Section 113(a) 

Administrative Orders in Relation to Electric 

Reliability and the Mercury and Air Toxics 

Standard’’ (Dec. 16, 2011). 

challenge the equipment construction 

industry. 

• Wyoming and EPA are legally 

required to consider the economic and 

system impacts on PacifiCorp and its 

customers. As EPA’s BART Guidelines 

explain: ‘‘There may be unusual 

circumstances that justify taking into 

consideration the . . . economic effects 

of requiring the use of a given control 

technology. These effects would include 

effects on product prices . . . Where 

these effects are judged to have a severe 

impact on plant operations you may 

consider them in the selection process, 

but you may wish to provide an 

economic analysis that demonstrates, in 

sufficient detail, for public review, the 

specific economic effects, parameters, 

and reasoning.’’ 70 FR 39171. Given the 

large number of BART impacted units 

owned by PacifiCorp in different states, 

these unusual circumstances justify 

Wyoming’s BART actions on 

PacifiCorp’s facilities and PacifiCorp’s 

customers. 

Response: PacifiCorp argues that 

springtime scheduling of the unit 

outages and outage extensions needed 

for ‘‘tie-in’’ of retrofitted controls could 

challenge system reliability in certain 

years—in PacifiCorp’s forecast, power 

demand plus reserves would 

temporarily exceed available supply. 

EPA believes that this forecast is 

unrealistic because PacifiCorp 

constrains itself almost entirely to use of 

its own generation supplies (ignoring 

other available generators in its region) 

and limits its assessment to springtimeonly outages in its system-wide outage 

planning examples. PacifiCorp indicates 

that spring outages are economically 

preferred due to the historical 

availability of cheap hydro replacement 

power and the typically higher 

alternative costs of purchased 

replacement power at other times. 

However, PacifiCorp provides no 

information on the availability or net 

cost of replacement power to meet 

demand, nor does PacifiCorp identify 

any alternative retrofit outage schedules. 

This is a significant omission because 

alternative retrofit outage schedules that 

avoid reliability issues through noncoincident temporary uses of purchased 

power, even if such temporary power 

purchases may cost more than power 

typically provided by the facilities 

experiencing an outage, might have a 

very small levelized net retail cost 

impact when applied to customers 

system-wide. In short, PacifiCorp ties its 

own hands in its provided analysis, 

ignoring proven and cost-effective 

strategies for maintaining electric 

reliability to allow facility upgrades in 

a timely fashion. 

EPA notes that PacifiCorp overstates 

the purported regulatory burden on its 

generating resources by claiming that 

the company ‘‘has not yet identified a 

viable control suite that will allow it to 

comply with the [Mercury and Air 

Toxics Standards, or MATS] provisions 

at the Carbon plant in Utah. As a result, 

while not finally determined, it is 

anticipated that Carbon Units 1 and 2 

will be required to be shut down in the 

2015 timeframe, resulting in the loss of 

172 megawatts of generation from 

PacifiCorp’s system.’’ Such an 

assumption is unfounded and ignores 

the EPA’s clear explanation in the final 

MATS that under the CAA, state 

permitting authorities can also grant 

sources an additional year as needed for 

technology installation. EPA expects 

this option to be broadly available. EPA 

is also providing a pathway for 

reliability critical units to obtain a 

schedule with up to an additional year 

to achieve compliance. This pathway is 

described in a separate enforcement 

policy document.235 As a result, the 

comment does not identify any specific 

conflict between MATS compliance 

planning at the Carbon facility and 

regional haze compliance planning at 

the Jim Bridger units at issue in this 

rule. 

In developing their argument, 

PacifiCorp borrows a ‘‘WetFGDeq’’ 

concept that EPA used in its nationwide analysis of the feasibility of 

retrofitting all controls that might be 

needed for timely compliance with 

MATS. PacifiCorp uses EPA’s nationally 

applicable WetFGDeq concept to 

compare annual WetFGDeq MW 

amounts of the limited site-specific 

retrofit activity that PacifiCorp has 

actually conducted during the past two 

decades, and might conduct in the 

future under the SIP, to the annual 

amount that they might have to conduct 

in the future under the proposed FIP. 

Based on this comparison, PacifiCorp 

states the following (see page 20 of 23; 

also see Figure 8 of PacifiCorp’s July 12, 

2012 comments): ‘‘The differences 

between the SIP Scenario and the 

Aggressive BART Scenario are fairly 

substantial on an equivalent Wet FGD 

basis. In the SIP Scenario, only one year 

exceeds the 2010–2011 levels of retrofit 

investment (of about 225 MW/year), 

while retrofits placed in service in 2017 

(675 MW) substantially exceed the 

previous historic maximum of 475 MW 

by 200 MW and two years are above the 

2010–2011 level. The control 

installation requirements under the EPA 

Aggressive BART Scenario would result 

in more work, less time, and increased 

costs.’’ 

EPA does not disagree that the 

proposed FIP may entail more 

PacifiCorp project management and 

construction effort (in one year, 2017) 

than the SIP would require, or than 

PacifiCorp has actually experienced as 

an individual company in the past. 

However, EPA does not consider the 

relatively small absolute amounts of the 

differences (200–300 MW) to be a 

serious obstacle for any large utility, 

given a bevy of retrofit experience of 

this magnitude by like companies in the 

past, on similar schedules. 

Comment: In making any BART 

determinations on a large, multijurisdictional system such as 

PacifiCorp’s, the regulating agency must 

consider the broad scope of the impacts 

of its decisions on customers and 

generating system reliability as a whole. 

Wyoming considered these factors in 

developing its regional haze SIP: ‘‘The 

Division believes that the size of 

PacifiCorp’s fleet of coal-fired units 

presents unique challenges when 

reviewing costs, timing of installations, 

customer needs, and state regulatory 

commission requirements. Information 

has been supplied by PacifiCorp 

elaborating on additional factors to be 

considered in PacifiCorp’s BART 

determination (see PacifiCorp’s 

Emissions Reductions Plan in Chapter 6 

of the Wyoming technical support 

document).’’ 

Wyoming’s consideration of these 

factors was appropriate. While 

PacifiCorp agrees with EPA’s proposed 

conclusions regarding the 

reasonableness and timing of 

installation of controls at Jim Bridger 

Units 1 and 2, EPA’s focus on 

affordability impermissibly fails to 

consider the unusual circumstances and 

broader impacts of its action on 

PacifiCorp’s other BART Units. EPA’s 

selection of SCR controls at Naughton 

Units 1 and 2 and at Dave Johnson Unit 

3 will affect the viability of continued 

unit operations. Installation of SCR 

controls at these three units, particularly 

given the cost of controls and their 

remaining useful life, create such 

‘‘unusual circumstances’’ that justify 

taking into consideration the conditions 

of the plant and the economic effects of 

requiring the use of a given control 

technology. 

The timing and reasonableness of the 

eight SCR and two SNCR and LNBs 

required in EPA’s proposed action must 

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be considered in the context of the 

additional controls required at 

PacifiCorp’s units in Arizona (Cholla 

Unit 4 with SCR required by 2017) and 

its share of units in Colorado (Hayden 

Unit 1 with SCR in 2015, Hayden Unit 

2 with SCR in 2016, Craig Unit 1 with 

SNCR in 2017 and Craig Unit 2 with 

SCR required in 2016) and the potential 

for additional controls required at four 

of PacifiCorp’s BART-eligible units in 

Utah within five years after final action. 

EPA’s failure to consider the ‘‘unusual 

circumstances’’ contemplated under its 

Appendix Y Guidance means the agency 

acted in a manner that is arbitrary and 

capricious in its overall assessment (or 

lack thereof) of the effects of its actions 

on PacifiCorp’s generation fleet. 

Response: See our response to the 

comment above. 

Comment: Pursuant to 40 CFR 

51.308(e), the State included provisions 

in its 309(g) regional haze SIP to address 

BART. When evaluating each permit 

application, the State determined BART 

for each source by evaluating visibility 

control options presented in the 

applications using the methodology 

prescribed in 40 CFR part 51, Appendix 

Y. 

The use of the BART guidelines 

contained in Appendix Y is only 

required for sources located at EGUs 

with a total capacity greater than 750 

MW, which for Wyoming were Basin 

Electric’s Laramie River Station and 

PacifiCorp’s Jim Bridger and Dave 

Johnston plants. However, for 

consistency, the State chose to follow 

the guidelines for all BART sources, 

including those located at the trona 

facilities. By using the guidelines of 

Appendix Y for all sources, the State 

established a consistent framework for 

performing BART evaluations. Finally, 

when selecting the ‘‘best alternative,’’ 

the State considered additional impacts 

to both the plant and the State. 

Appendix Y affords the determining 

authority discretion to consider 

additional impacts. See 70 FR at 39171. 

The State’s BART analysis not only 

considered all statutory factors, but also 

considered the significant impact on 

energy costs to PacifiCorp’s Wyoming 

rate payers if the controls, including 

SCR, were required to be installed in the 

BART timeframe of five years after SIP 

approval. While the State did not have 

the resources to perform a highly 

technical and complex analysis to 

quantify the potential cost impact of 

requiring installation of SCR controls on 

all of PacifiCorp’s Wyoming fleet, 

additional information was provided by 

PacifiCorp for public review. 

In addition to identifying costs in 

terms of capital expenditures, the State 

also considered the logistical challenges 

unique to PacifiCorp. The State is not 

aware of any other company faced with 

as many potential add-on control 

installations as PacifiCorp. 

Additionally, the State noted potential 

reliability issues related to the extended 

downtimes needed for the installation of 

SCR systems on multiple units within 

the BART timeframe. The impact of 

taking down large units, like Jim Bridger 

Units 1–4, each rated at a nominal 530 

MW, for extended outages increases the 

possibility of power shortages, not to 

mention increased power cost if 

PacifiCorp must purchase additional 

power at spot market prices to meet 

demand. 

Response: The commenter raises 

many of the same points that PacifiCorp 

raised in its July 12, 2012 comments on 

our third proposal in the alternative, 

and we have responded to the 

commenters points in our response 

above. EPA does not find the arguments 

for delaying controls put forth by 

PacifiCorp or the commenter to be 

compelling. 

Comment: In making any BART 

determinations on a large, multijurisdictional system such as 

PacifiCorp’s, the regulating agency must 

consider the broad scope of the impacts 

of its decisions on customers and 

generating system reliability as a whole. 

Wyoming considered these factors in 

developing its regional haze SIP: ‘‘The 

State believes that the size of 

PacifiCorp’s fleet of coal-fired units 

presents unique challenges when 

reviewing costs, timing of installations, 

customer needs, and state regulatory 

commission requirements.’’ Information 

has been supplied by PacifiCorp 

elaborating on additional factors to be 

considered in PacifiCorp’s BART 

determination (see PacifiCorp’s 

Emissions Reductions Plan in Chapter 6 

of the Wyoming Technical Support 

Document). Wyoming’s consideration of 

these factors was appropriate. EPA’s 

rejection of these factors was not 

appropriate. 

Given the large number of BART 

impacted units owned by PacifiCorp in 

different states, these ‘‘unusual 

circumstances’’ justify Wyoming and 

EPA considering the impact of EPA’s 

BART decision-making in the western 

U.S. on PacifiCorp and its customers. 

Response: We have responded to the 

commenter’s points in our responses 

above. As stated, EPA does not find the 

arguments for delaying controls put 

forth by the State or PacifiCorp to be 

compelling. 

Comment: Congress has defined ‘‘best 

available retrofit technology’’ as ‘‘an 

emission limitation based on the 

maximum degree of reduction of each 

pollutant subject to regulation under 

this chapter. . . .’’ 42 U.S.C. 7479(3). 

Congress also narrowly defined which 

sources would be exempt from BART. 

Section 169A(c) of the CAA exempt 

fossil fuel power plants exceeding 750 

megawatts only if the ‘‘owner or 

operator of any such plant demonstrates 

to the satisfaction of the Administrator 

that such power plant is located at such 

a distance from all areas . . . that such 

power plant does not or will not, by 

itself or in combination with other 

sources, emit any air pollutant which 

may reasonably be anticipated to cause 

or contribute to significant impairment 

of visibility in any such area.’’ Id. at 

section 7491(c)(2). Any such exemption 

must be agreed to by the FLMs. Id. at 

section 7491(c)(3). PacifiCorp has not 

submitted evidence demonstrating that 

the Jim Bridger coal plant—with a net 

generating capacity of 2,120 megawatts, 

78 FR 34753—will not cause or 

contribute to significant visibility 

impairment in any Class I area. To the 

contrary, EPA’s own visibility modeling 

shows that Bridger has significant 

visibility impacts at numerous Class 1 

areas. 78 FR 34754–34758. As such, 

EPA may not exempt the Jim Bridger 

plant from BART. 

Response: We agree with the 

commenter that PacifiCorp has not 

submitted any evidence that the Jim 

Bridger plant is located at such a 

distance from all Class I areas that the 

plant will not, by itself or in 

combination with other sources, emit 

any air pollutant which may reasonably 

be anticipated to cause or contribute to 

significant impairment of visibility in 

any such area. 

Comment: EPA should require 

installation of SCR at each Jim Bridger 

unit within the five-year regulatory 

deadline because this approach offers 

the greatest visibility improvement. 

Response: See responses above. 

Comment: EPA proposes that 

Wyoming’s determination of NOX BART 

for Jim Bridger units 1 and 2 as new 

LNB plus OFA is reasonable and that it 

would be unreasonable of the EPA to 

require any further retrofits at these 

units within five years of EPA’s final 

action. 78 FR 34756. The State supports 

EPA’s proposed approval of NOX BART 

as LNB plus OFA for Jim Bridger Units 

1 and 2. EPA also proposes to approve 

the State’s LTS of NOX control for Jim 

Bridger Units 1 and 2 as the SCR-based 

emission rate of 0.07 lb/MMBtu with 

compliance dates of December 31, 2021, 

for Unit 2 and December 31, 2022, for 

Unit 1. 

Based on facts PacifiCorp raised 

concerning the additional requirements 

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in the proposed FIP for Wyoming, the 

finalized FIP for Arizona, and the 

possibility of additional requirements in 

a future FIP or SIP for Utah, the 

additional time allowed PacifiCorp to 

install controls under the State’s LTS on 

Jim Bridger Units 1 and 2 is warranted 

under the affordability provisions in the 

BART Guidelines. 40 CFR part 50, App. 

Y, section IV(E)(3); see also 78 FR 

34756. Wyoming therefore supports 

EPA’s proposed approval. 

Response: We disagree with the 

points raised by the commenter in the 

second paragraph and have addressed 

their points in previous responses to 

comments. Nonetheless, we are 

approving the State’s SIP for Jim Bridger 

Units 1 and 2. 

Comment: Wyoming strongly urges 

EPA to stand by its proposed approval 

of Wyoming’s SIP requiring Jim Bridger 

Unit 1 to meet the 0.07 lb/MMBtu 

emission rate prior to December 31, 

2021 and Unit 2 to meet the 0.07 lb/

MMBtu emission rate prior to December 

31, 2022. However, Wyoming 

encourages EPA to approve Wyoming’s 

LTS for Jim Bridger Units 1 and 2 as 

submitted, rather than approve only the 

SCR portion, in order to preserve future 

flexibility for ensuring adequate 

emission controls. 

Response: We agree with this 

comment to the extent that the 

regulatory requirements we are adopting 

for monitoring, recordkeeping, and 

reporting only require that Jim Bridger 

Units 1 and 2 meet an emission limit of 

0.07 lb/MMBtu on a 30-day rolling 

average. Our regulatory language does 

not require PacifiCorp to install SCR to 

meet these limits. EPA is approving 

Wyoming’s LTS for Jim Bridger Units 1 

and 2 as submitted. 

Comment: EPA acted arbitrarily by 

not evaluating SNCR for the Jim Bridger 

units. EPA’s proposed regional haze FIP 

is defective because EPA did not follow 

the BART Guidelines when conducting 

a five-factor analysis for potential BART 

NOX controls. As the BART Guidelines 

explain, states (and EPA when it 

substitutes itself for the state) must 

evaluate ‘‘the control effectiveness of all 

the technically feasible control 

alternatives. . . .’’ Here, EPA failed to 

do so by not analyzing SNCR for the Jim 

Bridger plant. In fact, EPA admits it did 

not conduct a full BART analysis for 

SNCR for the Jim Bridger units: 

‘‘Because of our examination of the 

factors lead us to propose SCR as 

reasonable for BART, we have 

eliminated SNCR for further 

consideration.’’ 

Response: We disagree with this 

comment. Our proposed rulemaking 

notice clearly shows that we considered 

SNCR in our analysis (see Table 9 and 

Table 11 of the proposed rulemaking 

action). 

Comment: One commenter stated that 

our proposed rule creates unnecessary 

regulatory uncertainty by saying we 

propose to approve the State’s 

compliance deadlines for Jim Bridger 

Units 1 and 2, but then go on to say we 

are seeking comment on a 2017 

compliance deadline. They go on to say 

that EPA must state unequivocally that 

they approve of the State’s existing 

compliance deadlines for Jim Bridger 

Units 1 and 2. 

Response: We have responded to this 

comment in previous responses. 

Comment: We received numerous 

general comments in favor of our 

proposed approval of the State’s SIP for 

the Jim Bridger Units 1–4. 

Response: See responses to other 

comments above. 

Comment: PacifiCorp supports EPA’s 

proposed action to afford ‘‘considerable 

deference’’ to the Wyoming SIP with 

respect to what controls are reasonable 

and when they should be implemented 

at Jim Bridger Units 1 and 2, and that 

it would be unreasonable to require any 

further retrofits at this source within 

five years of EPA’s final action. This is 

especially true given the extremely 

limited visibility improvement that 

would be achieved if SCRs were 

installed within the BART time period 

at Jim Bridger Units 1 and 2. 

Further, PacifiCorp does not believe 

EPA, having reached the conclusion that 

it would be unreasonable to require 

further retrofits at Jim Bridger within 

five years, can reverse its decision 

simply by inviting comment on an 

alternative proposal without further 

consideration of the broader impacts of 

forcing more aggressive controls within 

a five-year period. 

Response: We have responded to this 

comment in previous responses. 

Comment: We received numerous 

comments that an earlier compliance 

deadline for the installation of SCR at 

Jim Bridger Units 1 and 2 would be a 

significant burden and would be costly 

to PacifiCorp consumers. 

Response: We have responded to this 

comment in other responses to 

comments. 

Comment: We agree with EPA that 

SCR represents BART for all four 

Bridger units, but recommend a lower 

30-day rolling average emission limit 

(e.g. 0.06 lb/MMBtu) to reflect the true 

capabilities of SCR. 

Response: We have addressed the 

control effectiveness of SCR above in 

section V.C.3. 

Comment: We received comments 

that BART for NOX emissions at Jim 

Bridger Units 1–4 must be based on SCR 

and LNBs/SOFA, which represents the 

best system of continuous emissions 

reduction and that commenters agree 

with EPA’s proposal to require this 

technology as BART. Commenters went 

on to state that EPA must revise its 

BART-based NOX emission limit for 

Units 1–4 from 0.07 lb/MMBtu to no 

higher than 0.05 lb/MMBtu, which the 

selected technology can easily achieve. 

Response: We have addressed the 

control effectiveness of SCR above in 

section V.C.3. 

b. PM BART Determination 

Comment: The fabric filter option 

discussed by Wyoming represents 

PacifiCorp’s estimate that application of 

a Compact Hybrid Particulate Collector 

unit in addition to using flue gas 

conditioning with the existing 

electrostatic precipitators can reduce 

emissions an additional 50% resulting 

in a PM10 emission rate of 0.015 lb/

MMBtu. Considering that EPA Region 9 

proposed that the Desert Rock power 

plant meet 0.010 lb/MMBtu, we believe 

that the Compact Hybrid Particulate 

Collector option could achieve the same 

limit. 

Response: See our response to a 

similar comment in section IV.C.6 of 

this rulemaking. 

Comment: Neither Wyoming nor EPA 

completed the five-step BART process 

for PM10 emissions. EPA asserted that: 

‘‘The State did not provide visibility 

improvement modeling for fabric filters, 

but EPA is proposing to conclude this 

is reasonable based on the high cost 

effectiveness of fabric filters at each of 

the units. In addition, we anticipate that 

the visibility improvement that would 

result from lowering the limit from 0.03 

lb/MMBtu to 0.015 lb/MMBtu would be 

insignificant based on the State’s 

analysis.’’ 

We have several concerns with these 

conclusions: (1) EPA cannot simply 

abort the five-step process once it has 

determined a technology to be 

technically feasible; (2) EPA has 

overlooked the environmental impact of 

SO3 emissions that may be released as 

a result of PacifiCorp’s FGC BART 

proposal; (3) Wyoming has 

underestimated the effectiveness of the 

fabric filter option; and (4) Wyoming’s 

fabric filter costs are overestimated. For 

example, the cost estimates used by 

Wyoming contained escalation, extra 

contingencies, and AFUDC, which are 

not allowed by the CCM and have been 

rejected by EPA in other analyses. The 

total for these improper costs exceeds $7 

million per fabric filter. 

Even taken at face value, the cost/ton 

deemed ‘‘high’’ by EPA for Units 2 and 

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3 are similar to or lower than cost/ton 

values accepted as reasonable (for NOX) 

by states and by EPA in other analyses. 

EPA should complete a proper five-step 

PM10 BART analysis by re-evaluating 

the Compact Hybrid option on the basis 

of its ability to achieve a lower limit 

(e.g., 0.010 lb/MMBtu), evaluating costs 

in accordance with the BART 

Guidelines, comparing its costeffectiveness to other baghouse 

installations to properly assess the 

‘‘reasonableness’’ of its cost, and 

determining the degree of visibility 

improvement that would result from a 

lower PM10 limit. 

Response: See our response to a 

similar comment in section IV.C.6 of 

this rulemaking. 

3. Dave Johnston Units 3 and 4 

a. NOX BART Determination 

Comment: Wyoming has 

underestimated the ability of SCR to 

reduce emissions. In estimating the 

annual cost-effectiveness of the 

LNB+OFA+SCR option, Wyoming 

assumed 0.07 lb/MMBtu on an annual 

average basis. Based on the 0.28 lb/

MMBtu NOX emission rate predicted for 

the LNB+OFA option, and the 0.23 lb/ 

MMBtu annual emission rates 

demonstrated by Johnston Unit 3 in 

2011, outlet emissions at 0.07 lb/MMBtu 

represent only a 70%–75% SCR control 

efficiency as opposed to the generallyaccepted 90%. Based on the 0.15 lb/

MMBtu NOX emission rate predicted for 

the LNB+OFA option, outlet emissions 

at 0.07 lb/MMBtu represent only a 53% 

SCR control efficiency on Unit 4. 

Wyoming has not provided any 

documentation or justification to 

support the higher emission rates used 

in its analyses. In other recent BART 

actions, EPA has determined that SCR 

can achieve 0.05 lb/MMBtu on an 

annual basis. Such an underestimate at 

Johnston biases the cost-benefit analysis 

against SCR and is inconsistent with 

other EPA analyses. 

Response: The commenter has 

incorrectly assumed that a 90% control 

efficiency can be achieved in all SCR 

applications regardless of the input NOX

emission rate or other parameters. In 

addition, we note that the emission rate 

analyzed by Wyoming, 0.07 lb/MMBtu, 

was on a 30-day rolling average basis, 

not an annual basis. Regardless, we 

agree that SCR can in most cases 

achieve a performance rate of 0.05 lb/

MMBtu on an annual basis. (See section 

IV.C.4 of this rulemaking for more 

information on the control effectiveness 

of SCR). We have revised the SCR costs 

for Dave Johnston Units 3 and 4 

accordingly. 

Comment: Wyoming has 

overestimated the cost of SCR. A survey 

of industry SCR cost data (conducted for 

the Utility Air Regulatory Group) and 

EPA IPM estimates show that typical 

SCR costs for units the size of the 

Johnston units would be $180–$300/

kW. Wyoming’s cost estimates for SCR 

on Units 3 and 4 are $488 and $436/kW, 

respectively, which exceed real-world 

industry costs ($50–$300/kW) and 

industry estimates, leading us to believe 

that capital and annual costs are 

overestimated. 

Response: See our response regarding 

the cost of SCR in section IV.C.5 of this 

rulemaking. 

Comment: Neither PacifiCorp nor 

Wyoming provided justification or 

documentation for their cost estimates. 

We were not provided with any vendor 

estimates or bids, and PacifiCorp and 

Wyoming did not use the CCM. For 

example, the cost estimates used by 

Wyoming contained AFUDC, which is 

not allowed by the CCM and has been 

rejected by EPA in other analyses. The 

total for these improper costs exceeds 

$13 million. 

Response: In order to address the cost 

analysis deficiencies noted by the 

commenter, EPA has performed revised 

cost analyses for Dave Johnston Units 3 

and 4. In our revised cost analyses, we 

have followed the structure of the CCM, 

though we have used the IPM cost 

models to estimate direct capital costs 

and O&M costs. 

Comment: Dave Johnston Unit 4 could 

very likely achieve a NOX rate as low as 

0.03 lb/MMBtu, which reflects 80% 

NOX control across the SCR. A lower 

NOX emission limit would increase the 

cost of the total system, but the cost 

effectiveness of the system is actually 

improved because of the greater NOX

removal. The cost effectiveness of SCR 

plus LNBs/OFA at Dave Johnston Unit 

4 to meet a 0.03 lb/MMBtu NOX rate 

would be $1,803/ton of NOX removed. 

EPA should require Dave Johnston Unit 

4 to install SCR plus LNBs/OFA to meet 

a NOX rate of 0.03 lb/MMBtu or, at 

worst, no higher than 0.05 lb/MMBtu. 

Response: We have addressed the 

control effectiveness of SCR above in 

section V.C.3. Again, we have not 

selected LNBs with OFA and SCR for 

Dave Johnston Unit 4 due to the high 

incremental cost effectiveness, when 

considered within the context of the five 

factors. 

Comment: EPA’s use of undefined 

incremental cost effectiveness versus 

incremental visibility benefit threshold 

is arbitrary in concept and in its 

application. It is arbitrary in concept 

because EPA has not provided any 

reasoned basis for its approach let alone 

disclosed the threshold it applies. It is 

arbitrary in application, because in the 

case of Dave Johnston Unit 4, the 

visibility benefits of SCR do justify its 

cost, as EPA has found for other units. 

Response: We disagree. We have 

made our determination based on a 

weighing of the five factors. One of the 

factors to be considered is costeffectiveness, both average and 

incremental. For Dave Johnston Unit 4, 

we have determined that the 

incremental costs, when considered 

with the other BART factors, does not 

make the selection of SCR reasonable. 

Comment: The EPA failed to support 

its conclusion that SNCR, rather than 

SCR, is BART for Dave Johnston Unit 4. 

The EPA’s sole basis for rejecting SCR 

as BART for Dave Johnston Unit 4 was 

the incremental cost effectiveness of the 

control, which EPA estimated to be 

$11,951, but the EPA has not supported 

this line-drawing with reference to the 

statutory BART factors or purpose of the 

regional haze program. Without 

providing objective standards or 

rationale to support its determination, 

the EPA’s judgment that the incremental 

cost effectiveness of SCR on Dave 

Johnston Unit 4 is too high appears 

arbitrary. 

The EPA’s analysis of incremental 

cost effectiveness for Dave Johnston 

Unit 4 also cannot drive the Agency’s 

BART determination because EPA 

overestimated the cost of SCR for Unit 

4. The EPA found the average cost 

effectiveness of SCR to be reasonable for 

the unit, but the costs are even lower 

than the EPA assumed because the EPA 

used unjustified ‘‘retrofit factors,’’ 

interest rate, and auxiliary power costs. 

Response: As stated in our response 

above, we have made our determination 

based on a weighing of the five factors. 

One of the factors to be considered is 

cost-effectiveness, both average and 

incremental. For Dave Johnston Unit 4, 

we have determined that the 

incremental costs, when considered 

with the other BART factors, does not 

make the selection of SCR reasonable. 

In addition, we have revised the costs 

of SCR for Dave Johnston Unit 3 in 

support of our final rulemaking. The 

revised costs are no longer based on a 

retrofit factor, but instead are based on 

a budgetary price from an equipment 

vendor submitted by PacifiCorp during 

the comment period. We feel that use of 

the vendor data for SCR provides a more 

accurate capital cost than when using a 

retrofit factor. For reasons described in 

separate responses, we continue to find 

that use of the social discount rate of 

7% is appropriate for regulatory 

applications such as BART 

determinations. We have corrected the 

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auxiliary power costs to reflect busbar, 

and not market price of power; however 

this has a small affect on overall costs. 

Our cost methodology and assumptions 

are described in detail in the cost report 

that can be found in the docket. 

Comment: SCR on Dave Johnston Unit 

4 would likely result in even greater 

NOX emission reductions than EPA 

assumed, further undermining the 

Agency’s exclusive reliance on 

incremental cost effectiveness to reject 

SCR as BART. An emission rate lower 

than 0.05 lb/MMBtu on a 30-day average 

is achievable for Dave Johnston Unit 4 

because this unit operates combustion 

controls that independently control 

NOX emissions to a 30-day average of 

0.13 lb/MMBtu (compared with the 0.22 

lb/MMBtu NOX-emission rate achieved 

at Unit 3). At this emission level, SCR 

would only need to remove 66.4 percent 

of NOX emissions to achieve an 

emission rate of 0.05 lb/MMBtu, while 

SCR is capable of achieving NOX

reductions of 90 percent. The EPA 

should have evaluated the costeffectiveness of SCR on Dave Johnston 

Unit 4 based on even greater NOX

emissions reductions that are readily 

achievable. 

Response: We disagree. First, the 

commenter has incorrectly assumed that 

a 90 percent reduction in NOX is 

achievable with SCR regardless of inlet 

rate or other parameters. In most cases, 

SCRs are designed for a performance 

emission rate, such as in lb/MMBtu, and 

not the anticipated percent reduction. In 

the case of Dave Johnston Unit 4, the 

low emissions currently being achieved 

with combustion controls are not an 

indication that the SCR would achieve 

greater reductions than estimated by 

EPA. In fact the exact opposite is true: 

the lower the inlet rate to the SCR, the 

less NOX that will be removed as there 

are simply fewer tons to remove. 

Finally, we note that we have revised 

our cost calculations to support the 

determinations in today’s final rule. In 

our revised analysis, we calculate that 

the incremental cost effectiveness of 

SCR is $13,312/ton, as opposed to 

$11,951/ton. This reinforces our 

conclusion that SCR is not appropriate 

for Dave Johnston Unit 4. Our cost 

methodology and assumptions are 

described in detail in the cost report 

that can be found in the docket. 

b. Alternative Control Technology 

Proposal 

Comment: Dave Johnston Unit 3 was 

retrofitted with LNB and separated OFA 

in the spring of 2010, and Unit 4 was 

retrofitted with the same technology in 

early 2009. EPA recognizes that Unit 3 

has a current annual NOX emission rate 

of about 0.22 lb/MMBtu, and Unit 4 has 

a rate of about 0.14 lb/MMBtu. The 

potential additional NOX controls that 

may be added to these units include 

SNCR and SCR. Should an alternate 

control technology be considered by 

EPA for Dave Johnston Unit 3, SNCR is 

preferable to SCR for Dave Johnston 

Unit 3 when considering all currently 

available information and the current 

emissions performance of the unit. 

Even though the cost of SNCR is 

unacceptably high for Unit 3 

(approximately $5,500 per ton NOX

removed), it is still far less than the 

tremendously expensive cost of SCR 

($15,769 per ton NOX removed for Unit 

3), particularly when taking into 

account the incrementally small 

modeled visibility improvement 

between the technologies. 

Response: As described in section 

III.B of this document, we have reevaluated the cost of compliance for 

Dave Johnston unit 3 to reflect a shorter 

remaining useful life (9 years as 

opposed to 20 years) because PacifiCorp 

has volunteered to install SNCR and 

retire the unit in 2027 in lieu of 

installing SCR under our proposed rule. 

As we explain there, our revised BART 

analysis shows that neither SNCR nor 

SCR is reasonable over this shorter 

remaining useful life. However, our 

analysis continues to support a 

conclusion that SCR is warranted if the 

costs of compliance are calculated over 

a 20-year remaining useful life. 

Therefore, we have also included an to 

give PacifiCorp the option to meet a 0.07 

lb/MMBtu emission limit (assumes 

installation of SCR) within five years of 

today’s action instead of shutting down 

the unit. 

Comment: With respect to Dave 

Johnston Unit 4, EPA has concluded 

that SNCR is BART for that unit. As 

such, PacifiCorp has only provided 

updated SNCR information for Unit 4, 

considering all currently available 

information and the current emissions 

performance of the unit. The cost of 

SNCR for Unit 4 is unacceptably high 

and not cost effective (approximately 

$12,000 per ton NOX removed). The 

alternate control technology for Dave 

Johnston Unit 4 would be LNB/OFA, as 

is currently installed today. 

Response: We disagree with the cost 

effectiveness estimates provided by the 

commenter. Nonetheless, as described 

above, in consideration of comments 

received during the public comment 

period, we have re-evaluated our cost of 

compliance estimates for Dave Johnston 

Unit 4. Our revised costs, when taken 

along with the remaining BART factors, 

no longer show that SNCR is warranted 

for Dave Johnston Unit 4. Therefore, we 

agree that BART for Dave Johnston Unit 

4 is the currently installed combustion 

controls (LNB/OFA). 

4. Naughton Units 1–3 

a. NOX BART Determination 

Comment: The EPA proposes to 

accept Wyoming’s SIP proposal to 

identify SCR as BART on Naughton Unit 

3 and to require SCR to reduce NOX

emissions from Naughton Unit 1 and 2. 

The EPA properly recognized that the 

costs of SCR on Naughton Units 1–3 are 

reasonable. However, the EPA’s estimate 

of costs is significantly inflated, and the 

true costs are even lower than EPA 

found because the EPA used unjustified 

‘‘retrofit factors,’’ interest rate, and 

auxiliary power costs. The recalculation 

of costs using what the commenter 

believes are corrected inputs resulted in 

significantly lower SCR costs of $1,501 

to $1,788/ton at all three Naughton 

units. On this basis, SCR is very cost 

effective on these units and at the low 

end of the cost threshold when scanning 

NOX reduction costs elsewhere. SCR 

also is justified by the visibility benefits 

it would afford, which additionally 

supports EPA’s findings that SCR 

reflects BART for Naughton Units 1–3. 

Response: EPA believes that the 

retrofit factors used in cost estimates 

were reasonable and has described in 

detail the reasoning for the retrofit 

factors in other responses. EPA also 

discussed the reasoning for the assumed 

interest rate in responses to other 

comments. EPA has revised its cost 

estimates and has made changes where 

EPA believed that input from 

commenters justified changes. 

Comment: EPA should evaluate the 

feasibility and cost-effectiveness of 

further NOX reductions that could be 

achieved by a more-efficient SCR. EPA 

is proposing that the FIP NOX BART 

emission limit for Naughton Unit 1, 

Unit 2, and Unit 3 is 0.07 lb/MMBtu 

(30-day rolling average). While we are 

generally pleased with EPA’s proposal, 

we note that EPA’s analysis is based on 

only 76% NOX control by the SCRs on 

Units 1 and 2, and 85% control by the 

SCR on Unit 3. This still results in Unit 

2 contributing 0.5 deciviews and Unit 3 

contributing 0.9 deciviews to visibility 

impairment at Badlands National Park. 

Response: We have addressed the 

control effectiveness of SCR above in 

section V.C.3 above. 

Comment: A NOX limit of 0.07 lb/

MMBtu on a rolling 30-boiler operating 

day basis would only require Naughton 

Units 1 and 2 to achieve 71 percent NOX

removal and Naughton Unit 3 to achieve 

80 percent NOX removal across the SCR 

system based on an evaluation of 

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available CAMD emissions data. A 0.05 

lb/MMBtu NOX emission limit 

applicable on a rolling 30-boiler 

operating day average basis would 

require 79 percent NOX removal across 

the SCR at Naughton Units 1 and 2 and 

85.7 percent NOX removal at Naughton 

Unit 3, which is achievable. 

Response: We have addressed the 

control effectiveness of SCR above in 

section V.C.3 above. 

Comment: We received comments 

that Wyoming has underestimated the 

ability of SCR to reduce emissions. 

Commenters stated that in estimating 

the annual cost-effectiveness of the 

LNB+OFA+SCR option, Wyoming 

assumed 0.07 lb/MMBtu on an annual 

average basis. Based on the 0.026–0.37 

lb/MMBtu NOX emission rate predicted 

for the combustion control option, 

outlet emissions at 0.07 lb/MMBtu 

represent only 73%–81% SCR control 

efficiency as opposed to the generally 

accepted 90%. Commenters went on to 

point out that in other recent BART 

actions, EPA has determined that SCR 

can achieve 0.05 lb/MMBtu on an 

annual basis. 

Response: The commenters have 

incorrectly assumed that a 90% control 

efficiency can be achieved in all SCR 

applications regardless of the input NOX

emission rate or other parameters. In 

addition, we note that the emission rate 

analyzed by Wyoming, 0.07 lb/MMBtu, 

was on a 30-day rolling average basis, 

not an annual basis. Regardless, we 

agree that SCR can in most cases 

achieve a performance rate of 0.05 lb/ 

MMBtu on an annual basis. (See section 

IV.C.4 of this rulemaking for more 

information regarding the control 

effectiveness of SCR). We have revised 

the SCR costs for the Naughton units 

accordingly. 

Comment: A survey of industry SCR 

cost data (conducted for the Utility Air 

Regulatory Group) and IPM estimates 

show that typical SCR costs for units the 

size of the Naughton units would be 

$280–$330/kW. Wyoming’s cost 

estimates for SCR are $412–$531/kW, 

which exceed real world industry costs 

($50–$300/kW) and industry estimates, 

leading us to believe that capital and 

annual costs are overestimated. 

Response: See our response regarding 

the cost of SCR in the section V.B.2 of 

this rulemaking. 

Comment: Neither PacifiCorp nor 

Wyoming provided justification or 

documentation for their cost estimates. 

We were not provided with any vendor 

estimates or bids, and PacifiCorp and 

Wyoming did not use the CCM. For 

example, the cost estimates used by 

Wyoming contained AFUDC which is 

not allowed by the CCM and has been 

rejected by EPA in other analyses. The 

total for these improper costs exceeds 

$17 million. 

Response: In our revised SCR cost 

analysis for the Naughton units, we 

followed the framework of the CCM 

(although we derived direct capital costs 

and O&M costs using the more recent 

approach found in the IPM cost 

models). For example, we did not allow 

for owner’s costs and AFUDC. 

Therefore, we have addressed the 

concerns raised by the commenter. 

b. Alternative Control Technology 

Proposal 

Comment: EPA requested additional 

information on the conversion of 

Naughton Unit 3 from a coal fired unit 

to a natural gas fired unit. 78 FR 34760. 

EPA must evaluate PacifiCorp’s fuel 

conversion in accordance with 

Appendix Y as a ‘‘better-than-BART’’ 

alternative and not as a BART control 

technology option because EPA had 

made clear in its BART Guidance that 

‘‘it is not [EPA’s] intent to direct States 

to switch fuel forms, e.g. from coal to 

gas,’’ as part of the BART analysis. 70 

FR 39104, 39164. PacifiCorp voluntarily 

submitted its permit application to 

convert Naughton Unit 3 to natural gas, 

the State issued a federally enforceable 

permit requiring such conversion. 

Compliance with the permit is therefore 

not voluntary. 

The permitted NOX performance level 

of Naughton Unit 3 after conversion to 

natural gas is 0.08 lb/MMBtu based on 

a 30-day rolling average and not 0.10 lb/ 

MMBtu based on a 30-day rolling 

average as stated in PacifiCorp’s permit 

application. Additionally, the permitted 

NOX mass emission rate is 250 lb/hr 

based on a 30-day rolling average, 

which is protective of visibility and 

lower than the BART-determined NOX

rate of 259 lb/hr based on the same 

averaging period. Finally, annual NOX

emissions will be reduced from the 

BART level of 1,134 tons to 519 tons. 

Response: We tentatively agree that 

the conversion of Naughton Unit 3 to 

natural gas is better-than-BART for that 

individual unit, however, the State has 

not provided a SIP for EPA’s action on 

this option. EPA does not have the 

authority to approve the conversion 

without a SIP submittal, and is, 

therefore, approving the State’s BART 

determination for SCR at Naughton Unit 

3 without making a final determination 

on whether the conversion is betterthan-BART for that unit. In lieu of our 

approval of the State’s BART 

determination for Naughton Unit 3, EPA 

is committed to take expedited action 

on a future SIP revision for Naughton 

Unit 3 reflecting the conversion if the 

State submits such a revision. That 

action would constitute our final 

determination on the conversion. 

Comment: Rather than install the 

control equipment required by the 

Wyoming SIP, PacifiCorp will convert 

the unit to fire natural gas by the end 

of 2017. A construction permit allowing 

the conversion has been issued by 

Wyoming, and PacifiCorp is moving 

ahead with a request for Wyoming to 

modify the Wyoming SIP to 

accommodate this change. The 

construction permit issued by Wyoming 

requires Naughton Unit 3 to cease 

burning coal by December 31, 2017 and 

to be retrofitted to natural gas as its fuel 

source by June 30, 2018. PacifiCorp 

requests that EPA’s final FIP include 

this compliance alternative for 

Naughton Unit 3. 

Response: See our response above. 

Comment: The Conservation 

Organizations support the Naughton 

Unit 3 conversion to natural gas within 

the first five-year regional haze planning 

period as a better-than-BART alternative 

to installation of SCR on Unit 3. We 

recognize that a gas conversion will 

virtually eliminate SO2 emissions as 

well as greatly reduce NOX and PM 

emissions resulting in significant 

visibility benefits. 

However, to the extent that EPA is 

considering whether the Naughton Unit 

3 is better than BART as proposed for 

all three Naughton Units (i.e., whether 

the conversion may be approved 

‘‘instead of . . . BART as proposed’’ for 

Naughton Units 1 and 2, 78 FR 34783), 

the Conservation Organizations object. 

The Conservation Organizations 

conducted visibility modeling to 

determine whether PacifiCorp’s 

proposed natural gas conversion at Unit 

3 (with LNB and OFA at Units 1 and 2) 

would result in greater visibility 

improvement than would EPA’s reproposed BART alternative of SCR at all 

three Naughton Units. The analysis 

shows that EPA’s re-proposed SCR 

BART determination consistently 

results in greater visibility improvement 

over the gas conversion scenario. Thus, 

the conversion of Naughton Unit 3 to 

gas with LNB/OFA on Units 1 and 2 

does not satisfy the ‘‘better-than-BART’’ 

standards of the regional haze 

regulations. Whether or not PacifiCorp 

converts Naughton Unit 3 to natural gas, 

EPA must require the installation of 

SCR to meet an emission limit of 0.05 

lb/MMBtu to satisfy BART for Naughton 

Units 1 and 2. 

Response: We acknowledge the 

support for a natural gas conversion as 

a better-than-BART alternative for 

Naughton Unit 3. If the State submits a 

SIP revision reflecting the conversion, 

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we will take expedited action on it. As 

discussed elsewhere, we are approving 

the State’s SIP submittal for all 

Naughton Units based on our 

consideration of the five BART factors. 

The remainder of the comment is 

therefore not relevant. 

5. Wyodak 

Comment: Wyoming has 

underestimated the ability of SCR to 

reduce emissions. In estimating the 

annual cost-effectiveness of the 

LNB+OFA+SCR option, Wyoming 

estimated 0.07 lb/MMBtu on an annual 

average basis. Based on the 0.18 lb/ 

MMBtu NOX emission rate predicted for 

the LNB+OFA option, outlet emissions 

at 0.07 lb/MMBtu represent only a 61% 

SCR control efficiency as opposed to the 

generally-accepted 90%. Wyoming has 

not provided any documentation or 

justification to support the higher 

emission rates used in its analyses. In 

other recent BART actions, EPA has 

determined that SCR can achieve 0.05 

lb/MMBtu on an annual basis. Such an 

underestimate at Wyodak biases the 

cost-benefit analysis against SCR and is 

inconsistent with other EPA analyses. 

Response: The commenter has 

incorrectly assumed that a 90% control 

efficiency can be achieved in all SCR 

applications regardless of the input NOX

emission rate or other parameters. In 

addition, we note that the emission rate 

analyzed by Wyoming, 0.07 lb/MMBtu, 

was on a 30-day rolling average basis, 

not an annual basis. Regardless, we 

agree that SCR can in most cases 

achieve a performance rate of 0.05 

lb/MMBtu on an annual basis. (See 

section IV.C.4 of this rulemaking for 

more information regarding the control 

effectiveness of SCR). We have revised 

the SCR costs for Wyodak accordingly. 

Comment: A survey of industry SCR 

cost data and EPA IPM estimates show 

that typical SCR costs for units the size 

of Wyodak would be $180–$280/kW. 

Wyoming’s cost estimates for SCR are 

$474/kW, which exceed real-world 

industry costs ($50–$300/kW) and 

industry estimates, leading us to believe 

that capital and annual costs are 

overestimated. 

Response: See our response regarding 

the cost of SCR in section IV.C.5 of this 

rulemaking. 

Comment: Neither PacifiCorp nor 

Wyoming provided justification or 

documentation for their cost estimates. 

We were not provided with any vendor 

estimates or bids, and PacifiCorp and 

Wyoming did not use the CCM. For 

example, the cost estimates used by 

Wyoming contained AFUDC, which is 

not allowed by the CCM and has been 

rejected by EPA in other analyses. The 

total for these improper costs exceeds $8 

million. 

Response: In our revised SCR cost 

analysis for Wyodak, we followed the 

framework of the CCM (although we 

derived direct capital costs and O&M 

costs using the more recent approach 

found in the IPM cost models). For 

example, we did not allow for owner’s 

costs and AFUDC. Therefore, we have 

addressed the concerns raised by the 

commenter. 

Comment: The addition of SCR at 

Wyodak should be required because it is 

consistent with the other BART 

determinations EPA has made. EPA is 

proposing that the FIP NOX BART is 

new LNBs with OFA plus SNCR at an 

emission limit of 0.17 lb/MMBtu. EPA 

proposes to eliminate new LNBs with 

advanced OFA plus SCR. The 

cumulative cost effectiveness of adding 

SCR to Wyodak is equivalent to EPA’s 

accepted values at Laramie River Unit 2. 

Based upon cost and visibility 

improvement, we believe that SCR is 

BART for Wyodak. As EPA stated in its 

notice, ‘‘cost-effectiveness and visibility 

improvement are within the range of 

other EPA FIP actions.’’ Even though 

cumulative visibility improvement is 

relatively low, so are SCR costs. 

A NOX limit of 0.07 lb/MMBtu on a 

rolling 30-boiler operating day basis 

would only require Wyodak to achieve 

67 percent NOX removal across the SCR 

system based on an evaluation of 

available CAMD emissions data. A 0.05 

lb/MMBtu NOX emission limit 

applicable on a rolling 30-boiler 

operating day average basis would 

require 76 percent NOX removal across 

the SCR, which the commenter believes 

is achievable. 

Response: As a result of other 

comments we have received, we are 

finalizing a NOX BART determination of 

new LNBs with OFA plus SCR for 

Wyodak. We agree with the portion of 

this comment that states this is 

consistent with other EPA BART 

determinations. We disagree with the 

remainder of the comment. As we have 

discussed in other responses, we are not 

required, nor have we chosen to, use the 

$/deciview metric, let alone the same on 

a cumulative basis, when assessing 

BART. 

We have addressed the control 

effectiveness of SCR above in section 

V.C.3. 

Comment: For Wyodak, EPA is 

proposing that the FIP NOX BART is 

new LNBs with OFA plus SNCR at an 

emission limit of 0.17 lb/MMBtu. EPA 

proposes to eliminate new LNBs with 

advanced OFA plus SCR because: 

‘‘Although the cost-effectiveness and 

visibility improvement are within the 

range of other EPA FIP actions, we find 

that the cumulative visibility 

improvement of 1.16 deciviews for new 

LNBs with OFA plus SCR is low 

compared to the cumulative visibility 

benefits that will be achieved by 

requiring SCR at Dave Johnston Unit 3 

(2.92 deciview), Laramie River Unit 1 

(2.12 deciview), Laramie River Unit 2 

(1.97 deciview), Laramie River Unit 3 

(2.29 deciview), Naughton Unit 1 (3.54 

deciview), and Naughton Unit 2 (4.18 

deciview).’’ 

Because the cumulative visibility 

improvement from EPA’s proposed 

control strategy is barely half of the 

visibility improvement that EPA 

rejected as ‘‘low,’’ then visibility 

improvement cannot be the only factor 

relied upon by EPA in making its BART 

determination. We can only conclude 

that EPA is somehow relating visibility 

improvement to another factor. For 

example, after correcting for the 

unsupported 1.3 retrofit factor at this 

relatively simple, single-EGU facility, 

the cost-effectiveness of adding SCR is 

$16 million/deciview at Wind Cave 

National Park, and $10 million/

cumulative deciview. By comparison, 

based upon EPA estimates, addition of 

SCR to Laramie River Unit 3 results in 

$28 million/deciview at the mostimpacted Class I area, and addition of 

SCR to Laramie River Unit 2 yields $10 

million/cumulative deciview. The 

cumulative cost effectiveness of adding 

SCR to Wyodak is equivalent to EPA’s 

accepted values at Laramie River Unit 2. 

Response: We disagree with the 

suggested use of the $/deciview metric. 

As we have discussed in other 

responses, we are not required, nor have 

we chosen to, use the $/deciview 

metric, let alone the same on a 

cumulative basis, when assessing BART. 

Even if we had, the commenter’s 

position is predicated on their assertion 

that EPA inappropriately applied a 

retrofit factor for SCR at Wyodak. As we 

have discussed in other responses, we 

disagree that it was inappropriate to 

apply a retrofit factor of 1.3. However, 

as explained below, we agree that we 

should not have relied on the basis 

stated in our proposal to reject SCR. For 

Wyodak, we find that the visibility 

improvements at two Class I areas, 

when weighed with the other BART 

factors, makes SCR reasonable as BART. 

Comment: Based upon cost and 

visibility improvement, we believe that 

SCR is BART for Wyodak. Under the 

EPA proposal, Wyodak would still 

contribute over 0.7 deciview 

impairment at Wind Cave National Park 

(and exceed 0.5 deciviews at Badlands 

National Park). With the addition of 

SCR, impairment would drop to less 

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than 0.5 deciviews at all Class I areas. 

As EPA stated in its proposal, ‘‘costeffectiveness and visibility 

improvement are within the range of 

other EPA FIP actions.’’ Even though 

cumulative visibility improvement is 

relatively low, so are SCR costs. 

Addition of SCR at Wyodak should be 

required because it is consistent with 

the other BART determinations EPA has 

made here. 

Response: After further consideration, 

we agree that it was inappropriate for 

EPA to reject SCR as BART for Wyodak 

based on the rationale that Wyodak’s 

emissions affect fewer Class I areas than 

Wyoming’s other BART-eligible sources. 

Where consideration of the five factors 

demonstrates that a control is 

reasonable in light of the visibility 

improvement that will occur at the most 

impacted Class I area, as was the case 

here for Wyodak and Wind Cave, the 

fact that additional Class I areas will 

also experience visibility improvement 

can only bolster the case for that 

control’s selection, not undermine it. In 

other words, the fact that Wyodak’s 

emissions affect two Class I areas 

instead of six or seven is irrelevant if the 

improvement at just one Class I area is 

sufficient to warrant a control’s 

selection as BART. Consequently, we 

have reassessed the five factors for 

Wyodak and now conclude, even after 

taking into account our revised cost 

estimates and visibility modeling, that 

LNB/OFA + SCR is NOX BART for 

Wyodak Unit 1. 

Comment: SCR with an emission limit 

of 0.05 lb/MMBtu should be required as 

NOX BART for Wyodak, rather than an 

SNCR-based limit of 0.17 lb/MMBtu as 

EPA proposes. EPA properly recognized 

that the cost-effectiveness and 

incremental cost-effectiveness of SCR to 

reduce Wyodak’s NOX emissions are 

reasonable, but nonetheless proposed to 

reject SCR on the basis of purportedly 

insufficient cumulative visibility 

benefits. EPA’s proposed determination 

is improper, because EPA has failed to 

justify why incremental visibility 

benefits over the large number of Class 

I Areas impacted by Wyodak’s NOX

emissions should not be required to 

achieve reasonable progress toward the 

national visibility goal, particularly in 

light of the fact that none of the 

Wyoming Class I areas affected by 

Wyodak’s NOX emissions are projected 

to achieve the Uniform Rate of Progress 

(URP) in 2018. Moreover, while EPA 

evaluated the impacts of Wyodak’s NOX

emissions only at Wind Cave and 

Badlands National Parks, our 

supplemental modeling shows that SCR 

to control Wyodak’s NOX emissions will 

nearly eliminate the plant’s perceptible 

visibility impacts at 18 Class I areas. 

EPA’s visibility justification for rejecting 

SCR as BART was improper because 

Congress has directed EPA to require 

BART ‘‘for the purpose of eliminating or 

reducing any [visibility] impairment’’ 

caused by the source. 42 U.S.C. 

7491(b)(2)(A). Installing SCR at Wyodak 

would resolve this impairment. 

Response: See our response to the 

previous comment. While we do not 

agree with the commenter’s assertion 

that Wyodak’s emissions have 

perceptible visibility impacts at 18 Class 

I areas or that the URP is relevant for 

purposes of a BART determination, we 

do agree that our decision to eliminate 

SCR based on cumulative visibility 

improvement was improper. 

Comment: EPA properly recognized 

that the cost-effectiveness and 

incremental cost-effectiveness of SCR to 

reduce Wyodak’s NOX emissions are 

reasonable, but nonetheless proposed to 

reject SCR on the basis of purportedly 

insufficient cumulative visibility 

benefits. EPA’s estimate of costs is 

significantly inflated, and the true costs 

are lower than EPA found because the 

EPA used unjustified ‘‘retrofit factors,’’ 

interest rate, and auxiliary power costs. 

On these bases, the EPA should require 

SCR at Wyodak as BART. 

Response: See our previous two 

responses. 

6. Trona Mines 

a. FMC Westvaco and General Chemical 

Green River 

Comment: EPA should reconsider 

whether SCR plus combustion controls 

is BART for the FMC Westvaco Units 

NS–1A and NS–1B. At $3,493/ton, as 

presented by EPA, SCR may be a costeffective option. Furthermore, EPA 

should evaluate whether the cost of SCR 

for FMC Westvaco Units NS–1A and 

NS–1B were calculated correctly. 

Response: Although EPA has not reevaluated the cost of SCR at the FMC 

Westvaco Units, we note the relatively 

low visibility improvement from SCR 

for each unit (0.24 deciviews). Because 

of the low visibility improvement from 

SCR, we do not find that a 

reconsideration of costs would 

necessarily have led EPA or the State to 

a different conclusion regarding the 

selection of SCR. 

Comment: At a minimum, EPA must 

require SNCR and LNB + SOFA as 

BART for NOX at the Westvaco plant. 

EPA determined that this enhanced 

technology could achieve a 0.21 lb/

MMBtu NOX emissions rate. This would 

result in a 70% reduction in NOX

emissions from current levels, rather 

than just a 50% reduction that would 

result from the 0.35 lb/MMBtu emission 

rate currently proposed. Requiring 

SNCR would lead to NOX emissions 

reductions of 1,903 tpy. SNCR in 

addition to LNB+SOFA is highly cost 

effective at $673/ton. This is well within 

the range of BART costs that EPA has 

found reasonable for SNCR at other 

facilities, including facilities in 

Wyoming. For example, EPA proposes 

to reject Wyoming’s NOX BART 

proposal for Wyodak Unit 1, and instead 

to require LNB+OFA+SNCR as BART, 

finding the technology cost effective at 

$958/ton, a higher cost than the same 

technology at the Westvaco boilers. 

Response: We disagree with this 

comment. First, SNCR at each of the 

units would achieve a 0.19 deciview 

improvement, with an incremental 

visibility improvement of 0.06 

deciviews. The cost effectiveness for 

LNBs compared to LNBs with SNCR is 

more than double ($304/ton compared 

to $673/ton). Based on this information, 

we find it reasonable for the State not 

to determine SNCR is BART for these 

units based on a consideration of the 

five factors, including the visibility 

improvement. 

Comment: Requiring SNCR at the 

FMC Westvaco plant would improve 

visibility at affected Class I areas. EPA 

states that Wyoming’s visibility 

modeling for this facility demonstrated 

a 0.19 deciview improvement at the 

Bridger Wilderness Area from the 

installation of SNCR on each boiler. In 

fact, Wyoming’s modeling demonstrated 

a 0.198 deciview visibility improvement 

for the maximum 98th percentile impact 

at Bridger Wilderness Area. The 

combined visibility improvement due to 

SNCR at both Westvaco boilers is nearly 

0.4 deciviews at the Bridger Wilderness 

Area alone. EPA found it appropriate to 

consider the combined visibility impact 

of pollution controls on multiple units 

at a single facility in determining that 

BART is SNCR for Units 1 and 2 of the 

Colstrip facility in Montana and should 

likewise consider the combined 

visibility impact of SNCR on the two 

Westvaco boilers. 

Response: We have addressed a 

similar comment above in section V.B of 

this rulemaking. We recognize that there 

may be some efficiencies in installing 

SNCR on two units (e.g., a common 

reagent supply system), but expect that 

this would provide only a modest 

reduction in annual costs. We do not 

find that the combined benefit for the 

two FMC Westvaco boilers, 0.4 

deciviews, is a basis for requiring SNCR. 

Comment: Wyoming’s modeling also 

showed that SNCR could virtually 

eliminate the visibility impairment at 

the Bridger Wilderness Area caused by 

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Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 5195 

236 In determining the measures necessary to 

make reasonable progress and in selecting RPGs for 

mandatory Class I areas within Wyoming, the State 

took into account the following four factors into 

consideration: Costs of compliance; time necessary 

for compliance; energy and non-air quality 

environmental impacts of compliance; and 

remaining useful life of any potentially affected 

sources. CAA section 169A(g)(1) and 40 CFR 

51.308(d)(1)(i)(A). 40 CFR 51.308(d)(1)(ii) allows for 

a slower rate of improvement in visibility than the 

URP, as long as it is demonstrated that based on 

these four factors, it is not reasonable to achieve the 

URP and that the selected RPG is reasonable. CAA 

section 169A(g)(1) and 40 CFR 51.308(d)(1)(i)(A). 

the FMC Westvaco Units NS–1A and 

NS–1B, reducing the number of days of 

noticeable visibility impairment caused 

by each boiler from eleven to just one. 

Visibility in the Bridger Wilderness 

Area is presently diminished by 4.6 

deciviews from natural conditions and, 

under EPA’s proposed action, it will not 

achieve natural conditions until 2165. A 

0.4 deciview visibility improvement at 

the Bridger Wilderness Area is 

particularly significant in light of new 

sources of haze-causing pollution from 

the oil and gas industry that will affect 

this area. NOX emissions from Wyoming 

oil and gas development are expected to 

more than double in the current regional 

haze planning period, from 14,725 tpy 

in 2002 to 34,142 tpy in 2018, yet EPA 

does not propose any NOX emissions 

reductions from this sector. 

Accordingly, it is imperative for 

Wyoming and EPA to reduce NOX

emissions from every other source to the 

greatest extent possible, including by 

requiring SNCR to be installed at the 

FMC Westvaco Units NS–1A and NS– 

1B. 

Response: We disagree with this 

comment. BART is a source-by-source 

analysis taking into consideration the 

five factors. The BART Guidelines and 

RHR do not require states or EPA to take 

into consideration the state being able to 

achieve the URP for a Class I area in its 

determination of BART for individual 

BART units.236

Comment: Wyoming’s modeling, 

upon which EPA relied, excluded all 

Class I areas beyond 300 km from the 

Westvaco facility. However, there is no 

demonstration that Class I areas further 

afield are not impacted by the Westvaco 

facility. As a comparison, EPA recently 

approved the South Dakota regional 

haze SIP which includes BART limits 

for the Big Stone facility, for which the 

nearest Class I area is over 400 km away. 

Response: We explained in response 

to another comment the reasons why we 

did not evaluate visibility impairment at 

Class I areas at distances greater than 

300 km. Regarding the South Dakota 

regional haze SIP, there are no Class I 

areas within 300 km of the Big Stone 

Facility. Therefore, it was reasonable for 

the state to evaluate visibility impacts at 

the nearest Class I area even though the 

distance was greater than 300 km. We 

note that the BART rule provides some 

flexibility to the states in the approach 

used to evaluate visibility impairment. 

The fact that South Dakota chose to 

evaluate visibility impacts at a distance 

greater than 300 km does not impose a 

similar requirement on other states. 

Comment: Considering just the two 

Class I areas modeled, the installation 

and operation of SNCR would result in 

a cumulative maximum 98th percentile 

visibility improvement of 0.304 

deciviews from each unit, or 0.608 from 

both units combined. This cumulative 

visibility improvement at two Class I 

areas is significant and amply justifies 

SNCR, at a minimum, as BART. 

Response: In the proposed rule, we 

did focus on the visibility benefits at the 

most impacted Class I area. We 

considered the visibility benefits at the 

other Class I areas, but did not consider 

the benefits sufficient to warrant a 

change in our determination as to the 

appropriate level of control. 

Comment: Although the cost 

effectiveness and visibility 

improvements due to SNCR and 

LNB+SOFA standing alone justify a 

determination that this combination of 

technologies is BART, EPA apparently 

agreed with Wyoming that the 

incremental costs of requiring SNCR 

were not justified by the resulting 

visibility improvement. EPA’s 

consideration of incremental cost 

effectiveness and visibility benefit is 

arbitrary given the lack of any objective 

criteria and in any event, must not be 

viewed in a vacuum. 

Response: We disagree with this 

comment. As stated above, we find it 

reasonable, based on a consideration of 

the five factors, including the low 

visibility improvement, for the State to 

find that SNCR and LNBs was not 

reasonable for BART. 

Comment: Although the State and 

EPA determined that addition of 

combustion controls is BART for the 

three BART boilers at these two 

facilities, it is unclear how they arrived 

at these conclusions. The visibility 

improvement from EPA’s proposed 

controls for the trona plants are less 

than the visibility improvement that 

EPA rejected as ‘‘low’’ in the EGU BART 

analyses, so it appears that EPA is using 

different criteria for these facilities or 

relating visibility improvement to 

another factor, which we assume to be 

some combination of cost and visibility 

improvement. (Otherwise, one would 

always choose the control strategy with 

the greatest visibility improvement.) 

However, it appears that EPA did not 

evaluate the cost analyses presented by 

the companies and the State, so we are 

concerned that the cost analyses for 

these two trona plants may suffer for the 

same problems that we pointed out to 

EPA before regarding the EGUs. For 

example, although Boiler D at Green 

River is the same size as the FMC 

boilers: (1) FMC evaluated addition of 

new combustion controls in 

combination with SNCR or SCR, Green 

River did not. (2) The capital cost of 

adding SNCR at Green River Boiler D is 

more than four times FMC. (3) EPA 

presented cost-effectiveness of SNCR as 

$3,176/ton at Green River Boiler D. The 

actual cost-effectiveness, based on 

EPA’s annual cost and emission 

reduction, is $1,637/ton. (4) FMC 

assumed that SCR could reduce NOX by 

31% to 0.10 lb/MMBtu, Green River 

assumed 80% NOX reduction to 

0.14 lb/MMBtu. (EPA typically assumes 

that SCR can achieve 0.05 lb//MMBtu 

on an annual basis.) (5) SCR capital cost 

is $43 million at FMC, $19 million for 

Green River Boiler D. (6) EPA presented 

cost-effectiveness of SCR as $3,510/ton 

at Green River Boiler D. The actual costeffectiveness, based on EPA’s annual 

cost and emission reduction, is $2,339/ 

ton. 

It is apparent that EPA must have 

been considering the costs of controls, 

but, in view of the substantial 

discrepancies noted above, those costs 

are questionable. In view of these 

discrepancies, we question how EPA 

rejected the more-effective control 

technologies (SNCR and SCR) that 

produce greater visibility improvements 

for the proposed controls. 

Response: We disagree with this 

comment. Even if the cost of SNCR and 

SCR were reduced, we find that the 

visibility improvement (Boiler C—0.08 

deciviews for SNCR and 0.14 deciviews 

for SCR; Boiler D—0.12 deciviews for 

SNCR and 0.17 deciviews for SCR) 

would not warrant the selection of postcombustion controls for BART. 

b. FMC Granger Trona Mine 

Comment: EPA proposes to approve 

Wyoming’s determination that the FMC 

Granger trona mine, while BARTeligible, is not subject-to-BART. The 

basis for EPA’s proposed approval is 

that the visibility impact of this facility 

at the Bridger Wilderness Class I area 

would be 0.39 deciviews, and EPA 

proposes to ‘‘agree with Wyoming that 

0.5 deciviews is a reasonable threshold 

for determining whether its BARTeligible sources are subject-to-BART.’’ 

EPA should reconsider its 

determination that the Granger facility 

is not subject-to-BART. In making the 

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237US EPA, Office of Air Quality Planning and 

Standards, Guidance for Setting Reasonable 

Progress Goals Under the Regional Haze Program 

(June 1, 2007). 

subject-to-BART determination at least 

three considerations must be 

incorporated pursuant to EPA’s BART 

guidelines: Whether the source causes 

or contributes to visibility impairment 

in a Class I area, the number of 

emissions sources affecting a Class I 

area, and the magnitude of the 

individual source impacts. Wyoming 

determined that the Granger plant was 

not subject-to-BART because its 

visibility impairment level at the 

Bridger Wilderness was predicted to be 

0.39 deciviews—below the 0.5 deciview 

threshold. Wyoming’s determination 

was flawed however because it 

apparently did not consider the other 

factors essential to a subject-to-BART 

determination, i.e., the number of 

emissions sources affecting the Class I 

area and the magnitude of the 

individual sources’ impacts. 

There are a large number of pollution 

sources affecting visibility in the Bridger 

Wilderness Area, including significant 

impacts from thousands of operating oil 

and gas wells that are not BARTeligible. This fact highlights the need for 

maximum feasible emissions from each 

source contributing to impairment at the 

Bridger Wilderness Area, particularly 

sources like the FMC Granger trona 

mine, which is eligible for BART 

controls. 

Response: We disagree with this 

comment. Wyoming used a contribution 

threshold of 0.5 deciviews for 

determining which sources are subjectto-BART. By using a contribution 

threshold of 0.5 deciviews, Wyoming 

exempted seven of the fourteen BARTeligible sources in the State from further 

review under the BART requirements. 

Based on the modeling results, the State 

determined that P4 Production, FMC 

Granger, and OCI Wyoming had an 

impact of .07 deciviews, 0.39 deciview, 

and 0.07 deciview, respectively, at 

Bridger Wilderness. Black Hills Neil 

Simpson 1, Sinclair Casper Refinery, 

and Sinclair—Sinclair Refinery have an 

impact of 0.27 deciview, 0.06 deciview, 

and 0.12 deciview, respectively, at 

Wind Cave. Dyno-Nobel had an impact 

of 0.22 deciview at Rocky Mountain 

National Park. These sources’ modeled 

visibility impacts fell below the State’s 

threshold of 0.5 deciview and were 

determined not to be subject-to-BART. 

Given the relatively limited impact on 

visibility from these seven sources, we 

continue to agree with Wyoming that 

0.5 deciviews is a reasonable threshold 

for determining whether its BARTeligible sources are subject-to-BART. In 

addition, the commenter points to the 

impacts from oil and gas at Class I areas. 

The BART Guidelines do not require 

states to consider the impacts from 

sources other than BART-eligible 

sources when defining the threshold for 

determining what sources are subject-toBART. While the Guidelines first say 

that, in setting a contribution threshold, 

states should consider the number of 

‘‘emissions sources’’ affecting the Class 

I area at issue, the Guidelines then go on 

to clarify that states may use a lower 

contribution threshold based on the 

location of a large number of ‘‘BARTeligible’’ sources within the State that 

are proximate to the Class I area at issue. 

E. Reasonable Progress 

1. RPGs 

Comment: 40 CFR 51.308(d)(1) of the 

RHR requires states to establish goals (in 

deciviews) that provide for reasonable 

progress towards achieving natural 

visibility conditions for each Class I area 

of the state. These are goals, not 

standards. Goals are typically 

understood as levels aimed for but not 

necessarily met. Early on in the process, 

EPA considered setting ‘‘presumptive 

targets’’ but eliminated them before the 

final rule. EPA also says that the RPGs 

established by the state are not directly 

enforceable. In spite of this, EPA has 

proposed to FIP the Wyoming RPGs. 

EPA does not specifically define the 

word ‘‘goal,’’ but the RHR does describe 

what must be considered when the goals 

are set. Wyoming has set six reasonable 

progress goals and every one of them 

met that criteria. EPA does not even 

argue with this basic fact. When setting 

the goals, the state must do a reasonable 

progress analysis. The State of Wyoming 

complied with this requirement as well. 

Response: EPA disagrees with this 

comment. Wyoming’s selected RPGs do 

not meet the requirements of the RHR. 

In establishing RPGs, Wyoming must 

make two demonstrations. First, the 

State must demonstrate how the four 

statutory reasonable factors, as applied 

to potentially affected sources, were 

taken into consideration in selecting the 

goals. 40 CFR 51.308(d)(1)(i). In 

addition, if Wyoming establishes an 

RPG that provides for a slower rate of 

improvement than the URP, the State 

must demonstrate, based on the four 

statutory reasonable progress factors, 

that achieving the URP is not reasonable 

and that the selected RPG is reasonable. 

40 CFR 51.308(d)(1)(ii). In determining 

whether the selected RPGs in fact 

provide for reasonable progress towards 

natural visibility conditions, EPA must 

evaluate these two demonstrations. 40 

CFR 51.308(d)(iii). 

EPA’s interpretation of the statute and 

the RHR is that BART sources should 

also be identified as anthropogenic 

sources of visibility impairment for 

purposes of developing the long-term 

strategy. 40 CFR 51.308(d)(3)(iv). 

Correspondingly, BART sources should 

be considered ‘‘potentially affected 

sources’’ and evaluated for controls 

using the reasonable progress factors. 

See 40 CFR 51.308(d)(1)(i)(A). However, 

due to the similarity of the reasonable 

progress and BART factors, it is 

reasonable for states to rely on their 

BART determinations to fulfill the 

requirements of 51.308(d)(1)(i)(A) and 

51.308(d)(1)(ii) (if applicable), in other 

words to demonstrate that the 

reasonable progress factors were 

reasonably considered for those sources 

for the first planning period. This 

interpretation is consistent with 

guidance EPA has issued for states 

regarding meeting reasonable progress 

requirements.237 However, the 

Wyoming submittal states that the 

reasonable progress ‘‘four factor analysis 

. . . is a method for evaluating potential 

control strategies for facilities that are 

not eligible for Best Available Retrofit 

Technology (BART) or better-thanBART programs.’’ Wyo. 309(g) 

Submittal at 115. Thus, the Wyoming 

submittal on its face fails to meet the 

requirements of the statute and the RHR. 

To the extent that Wyoming can be said 

to have relied on its BART 

determinations to establish that the 

State reasonably considered the 

reasonable progress factors for those 

sources, that reliance fails for those 

sources for which we are disapproving 

the BART determinations. In addition, 

as the State’s RPGs fall short of the URP, 

the State failed to adequately 

demonstrate, based on the four statutory 

reasonable progress factors, that 

achieving the URP was not reasonable 

and that, the selected RPG is reasonable. 

Given our evaluation of these 

demonstrations, we have determined 

that the selected RPGs do not provide 

for reasonable progress towards natural 

visibility conditions. 

In addition, although we are not 

disapproving the State’s ultimate 

determination to not impose controls on 

non-BART sources, we note that (as 

explained in more detail below) the 

State unreasonably relied on 

impermissible factors to reach those 

determinations. Thus, the State failed to 

demonstrate that it was reasonable, 

based on consideration of the statutory 

reasonable progress factors, to not meet 

the URP. In other words, although we 

are approving the State’s decision as 

part of its long-term strategy to not 

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impose controls on the non-BART 

sources the State listed, we are still 

disapproving the State’s RPGs. 

Because the State failed to meet the 

requirements of 51.308(d)(1)(i) and (ii) 

when the State selected its RPGs as part 

of the State’s Regional Haze SIP, EPA is 

obligated to promulgate a regional haze 

FIP to meet those requirements. That the 

RPGs are named ‘‘goals,’’ not standards, 

and are not directly enforceable is 

irrelevant to this obligation. 

Comment: Wyoming explained to 

EPA that Wyoming could not compel 

these reasonable progress sources to put 

on controls without a State rule, and 

that rule would have to include a 

visibility impact analysis. Wyoming was 

willing to commit to developing such a 

rule in the next planning period, but it 

did not have the time or resources left 

to complete that task and get the SIP 

submitted to the EPA for the first 

planning period. Wyoming’s 

administrative rulemaking process 

requires about nine months to a year to 

develop and finalize rules. Wyoming 

believes that it has taken an important 

first step in the process, and it appears 

to be more than many other states were 

making. 

Wyoming also believes that it made 

more sense to develop a comprehensive 

State reasonable progress rule that could 

be used for the next SIPs to address 

regional haze. That rule would take 

extra time that EPA was not willing to 

give the State. EPA told the State 

repeatedly that ‘‘The Regional Haze 

Rule does not allow for commitments to 

potentially implement strategies at some 

later date that are identified under 

reasonable progress.’’ The State is still 

dumbfounded by this kind of response 

for a rule that goes out to 2064, 

especially where EPA itself has 

recognized the one-step-at-a-time 

doctrine. 

Response: EPA disagrees with this 

comment. While we understand the 

State’s position on its limits on its 

authority, time, and resources, EPA first 

promulgated the reasonable progress 

requirements under the RHR on July 1, 

1999, and we issued our guidance on 

setting RPGs in September 2007. 

Wyoming submitted its Regional Haze 

SIP on January 12, 2011. Wyoming does 

not explain why the State did not have 

an adequate amount of time to develop 

a regional haze SIP that meets the 

requirements for reasonable progress. 

In any case, the State’s limits on its 

authority, time, and resources are not 

permissible factors for EPA to take into 

account when assessing the State’s 

Regional Haze SIP. Instead, we must 

assess whether it meets the 

requirements of the RHR, and in 

particular the requirements for 

reasonable progress towards natural 

visibility conditions. We note that we 

are approving certain portions of 

Wyoming’s Regional Haze SIP with 

respect to reasonable progress 

requirements. 

To the extent that the notion of ‘‘onestep-at-a-time’’ is relevant in this 

context, as explained elsewhere, 

Wyoming’s Regional Haze SIP fails to 

adequately make the very first step 

towards natural visibility conditions: 

Achieving reasonable progress during 

the first planning period. A commitment 

to completing that first step in a future 

planning period cannot substitute for 

actually completing the first step within 

schedule. Wyoming cites no authority to 

the contrary; conditional approval 

under CAA section 110(k)(4) does not 

apply as Wyoming has made no 

commitment to adopt specific 

enforceable measures within one year to 

remedy the deficiencies. Again, 

whatever the constraints imposed on the 

State by time, resources, and authority, 

those constraints cannot be taken into 

account in assessing whether the State 

has met the requirements for the first 

planning period. In this case, Wyoming 

has not met those requirements with 

respect to reasonable progress. 

Comment: States are required, when 

setting RPGs, to determine the rate of 

progress needed to attain natural 

visibility conditions by 2064. The State 

did that and included it in the SIP. 

EPA’s RHR also requires that if the rate 

is slower than the rate established by 

drawing a straight line between baseline 

visibility and natural conditions, that it 

must be explained why. The data clearly 

show that the primary reason that the 

State will not reach natural conditions 

by 2064 is that smoke from wildfires 

controls the slope of the line. 

Response: EPA disagrees with this 

comment, which understates the 

requirements of the RHR for setting 

RPGs. We agree that Wyoming did 

appropriately determine the URP 

needed to attain natural visibility 

conditions by 2064 and we are 

approving that determination. However, 

when a state selects an RPG that 

provides for a slower rate of 

improvement in visibility than the URP, 

it is not the case that all the state must 

do is ‘‘explain why.’’ Instead, the state 

must demonstrate, based on the 

statutory reasonable progress factors as 

applied to potentially affected sources, 

that the URP is not reasonable and that 

the selected RPG is reasonable. 40 CFR 

51.308(d)(1)(ii). Under the RHR, 40 CFR 

51.308(d)(1)(iii), and under section 110 

of the Act (as discussed elsewhere) we 

are required to evaluate the state’s 

demonstration. 

As discussed elsewhere, the State did 

not reasonably consider the statutory 

reasonable progress factors for 

potentially affected sources. As a result, 

the State also failed to adequately 

demonstrate, based on the four statutory 

reasonable progress factors as applied to 

potentially affected sources, that 

achieving the URP was not reasonable 

and that the selected RPG is reasonable. 

We therefore are disapproving 

Wyoming’s selected RPGs. 

With respect to the comment’s 

reference to wildfires, we provide a 

detailed response to comments relating 

to wildfires and natural conditions in 

the modeling section of this response to 

comments. 

Comment: EPA cannot remove the 

reasonable progress goals for the State. 

Wyoming followed the process outlined 

in the RHR. EPA is not following the 

RHR by proposing a control requirement 

for a specific source to replace six RPGs 

for an entire state. The RHR does not 

allow for the substitution of RPGs with 

control strategies. EPA’s proposed 

disapproval is contrary to law. 

Response: EPA disagrees with this 

comment. As discussed above, we are 

disapproving the State’s selected RPGs 

because they do not meet the 

requirements of the RHR. In addition, 

the commenter is mistaken in stating 

that EPA is ‘‘replacing’’ RPGs with 

control requirements for a specific 

source. This statement conflates two 

separate but related requirements of the 

RHR. First, states must set RPGs in 

accordance with 40 CFR 51.308(d)(1). 

Second, states must submit a LTS, 

including enforceable emissions 

limitations, compliance schedules, and 

other measures as necessary to achieve 

the RPGs. 40 CFR 51.308(d)(3). 

We are disapproving Wyoming’s RPGs 

because they do not meet the 

requirements of 51.308(d)(1), as detailed 

above. Separately, we proposed to 

disapprove Wyoming’s determination to 

not impose enforceable emissions 

limitations at Dave Johnston Units 1 and 

2. Thus, we did not propose to 

‘‘replace’’ the RPGs with control 

requirements; instead, we proposed to 

provide both. However, as explained 

elsewhere, on the basis of the cost and 

visibility information that EPA 

developed, we are now approving 

Wyoming’s determination (although not 

the State’s rationale) to not impose 

enforceable emissions limitations at 

Dave Johnston Units 1 and 2. We 

nonetheless continue to disagree with 

the comment. 

Comment: There is no way Wyoming 

can control the impacts from wildfire 

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smoke on visibility. Therefore, it will be 

a very long time, 126 to 161 years, 

before controlling manmade sources can 

ever overcome the smoke impacts, and 

that is assuming that smoke impacts 

never increase. The length of time for 

other western states is even longer, and 

EPA has approved those SIPs. Wyoming 

included this explanation along with 

identifying other sources that impact 

visibility, but EPA disagreed with the 

Wyoming assessment, saying not all 

reasonable controls were implemented 

during the first planning period. 

Specifically, EPA disagreed with 

Wyoming’s determination to not impose 

controls on Dave Johnston Units 1 and 

2. Because Wyoming did not impose 

controls on Dave Johnston Units 1 and 

2, EPA has proposed to disapprove 

Wyoming’s RPGs. 

Wyoming believes that EPA’s 

reasoning for disapproving the State’s 

RPGs is flawed and arbitrary. First, the 

State set goals based on regional 

modeling projections done for the entire 

western U.S. To the best of our 

knowledge, that is the same process that 

every other state in the western U.S. 

used and many of them now have 

approved RPGs in spite of the fact that 

it will take hundreds of years in all of 

the western Class I areas to reach 

‘‘natural conditions.’’ In North Dakota, 

for example, it will take between 156 

and 232 years to reach natural 

conditions at affected Class I areas. It 

would be impossible to set deciview 

goals without regional modeling, unless 

the State wanted to wildly guess at it. 

Response: EPA disagrees with this 

comment. We are not disapproving 

Wyoming’s RPGs solely on the basis that 

they fall short of achieving the URP. 

Instead, as explained above, we are 

disapproving them on the basis that the 

State has failed to demonstrate that the 

four statutory reasonable progress 

factors were appropriately considered. 

The State has also failed to demonstrate, 

again based on the four statutory 

reasonable progress factors, that 

achieving the URP is unreasonable and 

that the State’s selected RPGs are 

reasonable. The comment’s reference to 

wildfires is beside the point, as the 

existence of wildfires does not relieve 

the State of all responsibility to 

reasonably consider the statutory 

reasonable progress factors for 

potentially affected sources. We 

elsewhere provide a detailed response 

to comments relating to wildfires and 

natural conditions in the modeling 

section of this response to comments. 

Comment: While EPA ‘‘anticipates’’ 

that controls at Dave Johnston Units 1 

and 2 would result in measurable 

visibility improvement in regional 

modeling demonstrations, and that 

‘‘anticipation,’’ not modeling, therefore 

justifies dispensing with Wyoming’s 

RPGs, Wyoming does not. When the 

WRAP modeled all of the emission 

reductions from the entire western U.S. 

(including Wyoming emission 

reductions for all of the pollutants) for 

this first planning period, Wyoming saw 

an improvement of 0.6 deciviews at the 

Yellowstone site, and a 0.5 deciview 

improvement at the North Absaroka and 

Bridger sites on the worst days. The 

numbers are even smaller or zero for the 

best days. These improvements from 

much larger emission reductions for 

multiple pollutants are almost 

imperceptible. Therefore, it is highly 

unlikely that emission reductions for 

NOX from two units would make 

enough difference to show up as an 

‘‘improvement’’ in regional scale 

modeling, and thereby justify setting 

different RPGs. 

Response: We disagree with the 

approach suggested in this comment. 

Below, we discuss the use of CALPUFF 

(instead of the regional scale modeling 

the comment suggests) to determine 

visibility improvement from controls on 

Dave Johnston Units 1 and 2. We also 

respond to comments regarding regional 

scale modeling in section V.B. 

Comment: The EPA proposes to 

impose reasonable progress controls on 

Dave Johnston Units 1 and 2, more 

stringent NOX BART controls on Dave 

Johnston Unit 3, Jim Bridger Units 1 and 

2, Wyodak Unit 1, and Laramie Units 1, 

2, and 3. These EPA proposed controls 

are more stringent than what was 

assumed by the WRAP in modeling 

Wyoming’s RPGs. Wyoming established 

its RPGs based on the regional modeling 

projections completed in the WRAP 

process. In proposing these reasonable 

progress controls, EPA is also proposing 

RPGs that are consistent with the 

controls, thereby rejecting Wyoming’s 

proposed RPGs. 

In rejecting Wyoming’s RPGs and 

imposing its own, EPA did not re-run 

the WRAP model; instead, the agency 

essentially guessed ‘‘that the additional 

controls would result in an increase in 

visibility improvement during the 20% 

worst days,’’ thereby warranting the 

more stringent controls at these units. 

EPA’s proposal to reject Wyoming’s 

RPGs is not warranted. First, the mere 

assumption that additional controls will 

result in greater visibility improvement 

cannot reasonably be supported without 

modeling data. EPA admits that it ran 

no modeling that would support its best 

guess that visibility would improve with 

the installation of more stringent 

controls. Second, EPA’s proposal to 

place controls on the Dave Johnston 

Units 1 and 2 is flawed. The Dave 

Johnston Units 1 and 2 are not BARTeligible units. When Wyoming 

considered the WRAP model data, it 

concluded that putting controls on the 

Dave Johnston Units 1 and 2 would not 

result in an improvement in visibility. 

Without any improvement in visibility 

coming from placing controls on these 

non-BART units, Wyoming reasonably 

concluded that there was no reason to 

change its RPGs. 

Response: We disagree with this 

comment. WRAP performed regional 

photochemical modeling using both the 

CMAQ and CAMx air quality models to 

evaluate progress toward attaining 

visibility goals using all projected 

emission changes from all source 

categories throughout the United States. 

WRAP did not perform regional 

photochemical modeling to evaluate the 

visibility impacts of individual BART 

sources. While WRAP did make 

assumptions regarding the level of 

emissions control that would be 

adopted by BART sources, no state or 

EPA region has re-run the WRAP’s 

regional photochemical models to assess 

individual BART source contributions 

to visibility impairment. Instead, the 

BART sources, the states, and EPA have 

used the CALPUFF model to evaluate 

contributions to visibility impairment 

from individual BART sources. As 

discussed earlier in this rulemaking and 

the docket for this final action, EPA 

modeled visibility impairment from 

individual sources in making its 

determination of BART and reasonable 

progress controls. Thus, the comment is 

inaccurate in stating that EPA ran no 

modeling to assess whether controls on 

Dave Johnston Units 1 and 2 would 

improve visibility. With respect to the 

assertion that Wyoming considered the 

WRAP model data and decided that the 

data showed controls on Dave Johnston 

Units 1 and 2 would not improve 

visibility, the Wyoming SIP submittal 

does not reflect that. In evaluating the 

reasonable progress factors for Dave 

Johnston Units 1 and 2 (which was 

selected by the State as a potentially 

affected source) the SIP submittal states: 

‘‘LNB or LNB w/OFA seem to be the 

most reasonable choice[s] for the Dave 

Johnston Electric Generating Station 

boilers BW41 and BW42 based on the 

four factor analysis. The 

implementation of new control 

technologies on the two boilers are 

discussed in further detail in Chapter 8 

(Section 8.3.4), Long-Term Strategy.’’ 

Nonetheless, in section 8.3.4, the SIP 

stated: ‘‘The Air Quality Administrator 

cannot, per Wyoming Statute 35–11– 

202, establish emission control 

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requirements except through State rule 

or regulation. Furthermore, the 

Wyoming statute requires the 

Administrator to consider the character 

and degree of injury of the emissions 

involved. In this case, visibility 

modeling would be required to assess 

the degree of injury caused by the 

emissions. Modeling is not available at 

this time to determine impacts from 

emission reduction.’’ As we explain 

elsewhere, these are not permissible 

reasons to ignore the four statutory 

reasonable progress factors. 

Nonetheless, our revised visibility 

modeling leads us to the conclusion that 

it was not unreasonable for the State to 

not impose controls on Dave Johnston 

Units 1 and 2, even though the State’s 

basis for doing so was inadequate. 

Comment: Wyoming’s adoption of an 

alternative SO2 program, even if it were 

valid, does not relieve Wyoming of its 

obligation to develop and implement a 

LTS that includes measures necessary to 

reduce visibility-impairing emissions of 

SO2, PM, and NOX to achieve RPGs for 

non-Colorado Plateau Class I areas. 

Accordingly, EPA must determine 

whether Wyoming’s RPGs for its nonColorado Plateau Class I areas are 

adequate. 

Response: We agree that Wyoming 

must develop a LTS to address 

reasonable progress for non-Colorado 

Plateau Class I areas. As our proposed 

notice indicates, we proposed to 

disapprove the State’s RPGs. We also 

proposed to implement additional 

controls under reasonable progress. We 

are completing the action to disapprove 

the State’s RPG’s today, and as 

explained elsewhere in this section, we 

are not finalizing requirements for 

additional controls under reasonable 

progress. 

Comment: With the exception of the 

controls required on Naughton Unit 3, 

PacifiCorp has installed all of the BART 

controls required by the Wyoming 

BART permits and the regional haze 

SIP. These controls were installed from 

2005 through 2012. The actual 

monitored visibility impairment 

demonstrates that Wyoming has made 

significant progress in reducing nitrate 

concentrations and further demonstrates 

that the RPGs are on track through the 

2008–2017 planning period. EPA’s FIP 

is not ‘‘necessary’’ to meet RPGs for 

nitrates in these Class I areas. As a 

result, EPA should withdraw its FIP. 

Response: EPA disagrees with this 

comment. As explained above, the State 

was required to assess the four statutory 

reasonable progress factors for 

potentially affected sources and 

reasonably determine potential controls, 

and we are required to evaluate the 

State’s determination. The State did not 

demonstrate reasonable progress for 

those determinations that we are 

disapproving. As a result, we must 

disapprove the State’s RPGs and 

promulgate a FIP for them. We also note 

that the comment does not explain the 

relationship between the State’s RPGs 

and changes in monitored visibility 

impairment as the result of installed 

controls, as the State’s RPGs were not 

remodeled to reflect the controls 

selected by the State. 

Comment: Any discussion of the 

appropriate NOX control levels required 

under the RHR should include an 

assessment of the existing visibility 

levels to understand what pollutants are 

driving visibility impairment in 

Wyoming. Measured visibility 

impairment at Wyoming’s IMPROVE 

monitoring stations shows that the 

contribution from nitrates, which are 

visibility impairing pollutants that 

result from NOX emissions, play a lesser 

role in visibility impairment in 

Wyoming than particulate organic mass 

or sulfates. The latest available 

IMPROVE data (2000–2009) from the 

WRAP Technical Support System 

reveals the following about the two 

Class I areas that were most closely 

examined for impacts from Wyoming 

BART sources: (1) Currently, the air in 

those Class I areas is very clear, with 

overall visibility among the best in the 

entire country; (2) When visibility is not 

good, i.e., when you can’t see across the 

vista, it is likely because of smoke from 

wildfires; (3) The contribution to 

visibility impairment from nitrate 

particles, which are as a result of 

emissions of NOX, is small. 

The State believes it has made a good 

case that fire contributes more to 

visibility impairment than nitrates at 

Class I areas most affected by Wyoming 

sources. The State has made great 

progress in reducing the manmade 

contribution to visibility impairment 

from power plants, even when the 

manmade contribution has much less 

impact to visibility impairment than 

other components. EPA’s proposed 

disapproval and FIP are not supported 

by a record that demonstrates small 

visibility improvements predicted by a 

CALPUFF model replete with 

uncertainty when the actual, measured 

levels of nitrates at Class I areas affected 

by those sources is so small. Wyoming’s 

SIP is adequately supported because 

Wyoming considered these and other 

factors in arriving at the selected levels 

of NOX controls for Wyoming sources 

and the schedule for the installation of 

those controls. 

Response: We disagree with this 

comment. Regardless of the 

considerations presented in the 

comment, the State was required, at a 

minimum, to evaluate the four statutory 

reasonable progress factors for 

potentially affected sources and to 

reasonably determine controls, and we 

are required to evaluate the State’s 

determination. In evaluating the factors 

for Dave Johnston Units 1 and 2, which 

was selected in the State’s SIP as a 

potentially affected source, the SIP 

submittal states: ‘‘LNB or LNB w/OFA 

seem to be the most reasonable choice[s] 

for the Dave Johnston Electric 

Generating Station boilers BW41 and 

BW42 based on the four factor analysis. 

The implementation of new control 

technologies on the two boilers are 

discussed in further detail in Chapter 8 

(Section 8.3.4), Long-Term Strategy.’’ 

Nonetheless, in section 8.3.4, the SIP 

stated: ‘‘The Air Quality Administrator 

cannot, per Wyoming Statute 35–11– 

202, establish emission control 

requirements except through State rule 

or regulation. Furthermore, the 

Wyoming statute requires the 

Administrator to consider the character 

and degree of injury of the emissions 

involved. In this case, visibility 

modeling would be required to assess 

the degree of injury caused by the 

emissions. Modeling is not available at 

this time to determine impacts from 

emission reduction.’’ 

As explained above, it is unreasonable 

and impermissible for the State to 

disregard its four factor analysis on the 

basis that the State lacked the necessary 

modeling and that reasonable progress 

requirements could be postponed until 

the next planning period. The 

considerations presented by the 

comment do not change this. 

In addition, section 110(a)(2)(E)(i) of 

the Act requires that SIPs provide 

necessary assurances that, among other 

things, the State has adequate authority 

and resources to carry out the plan. The 

SIP language we quote above instead 

denies that the State has the proper 

authority and resources to meet the 

requirements of the RHR, in particular 

the requirement that the long-term 

strategy ‘‘include enforceable emissions 

limitations . . . and other measures as 

necessary to achieve the reasonable 

progress goals.’’ 40 CFR 51.308(d)(3). As 

a result, Wyoming’s Regional Haze 

submittal fails to meet the requirements 

of section 110(a)(2)(E)(i), which is 

applicable to ‘‘[each] implementation 

plan submitted by a State under [the 

CAA],’’ including the Regional Haze 

submittal. 

Comment: An area of the RHR that is 

unusual is in the timing of the 

implementation of the rule. It is the 

most forward looking of all the rules 

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with requirements to be carried out by 

the grandchildren of the people who are 

currently working on the rule, with an 

end date of 2064. While EPA has 

established long-term targets through 

the acid rain program and ozone 

attainment requirements in a 10–20 year 

time frame, they have never set goals 

that were 60 years down the road. This 

is significant because EPA recognized 

that the problem was complicated and 

that it would take at least this much 

time to solve it. 

EPA’s strategy included breaking up 

the long-range goal of achieving natural 

conditions by 2064 into many smaller 

pieces. EPA included a requirement for 

states to submit comprehensive SIP 

revisions in 2018 and every ten years 

thereafter. In addition to the 

comprehensive SIP revisions, states will 

also be required under 40 CFR 51.308(g) 

to submit progress reports in the form of 

a SIP revision every five years, with the 

first revision due in 2013. Between both 

the comprehensive SIP revisions and 

the progress report SIP revisions, states 

will be working on 16 more SIP 

revisions, at a minimum, to address 

regional haze. The State views these 

upcoming SIP revisions on regional 

haze as opportunities to build on the 

first SIP, and that the current rush by 

the EPA to get so many reductions 

procured in the first time period as 

unnecessary. It is unnecessary because 

the State has submitted a plan to reduce 

NOX from BART sources by 45,153 tons, 

and an additional 19,677 tons through 

the LTS in the first planning period. 

There are few states in the country that 

can demonstrate this magnitude of 

emission reductions Wyoming has 

secured. 

EPA recognized in the RHR preamble 

that many factors will change over time 

and that it may be possible to procure 

emission reductions in the future that 

cannot be accomplished during an 

earlier period. EPA expected reductions 

to occur over time and did not expect 

states to front end load this program 

with emission reductions. 

The RHR provides states with the 

time necessary to intelligently address 

the very complicated problem of 

regional haze. Wyoming asks EPA to 

recognize their own intentions to roll 

out this program step by step and 

approve the State’s decision to require 

SCR on PacifiCorp Units 1 and 2 of the 

Jim Bridger Power Plant in 2021 and 

2022 as part of the LTS. The State also 

asks that EPA give the State the time it 

needs to create a rule to address 

reasonable progress, which would 

include reductions at the PacifiCorp 

Dave Johnston Plant, Units 1 and 2. 

Wyoming plans to create a general 

reasonable progress rule in the next 

planning period to address future 

reductions. 

Response: While we recognize the 

emission reductions achieved by the 

State for the first planning period and 

that the regional haze program is a longterm program, the State must still meet 

the requirements of 40 CFR 51.308 for 

the first planning period. As we stated 

in our proposal notice, the State’s plan 

does not fully meet the requirements for 

BART and reasonable progress. Because 

we have found that the State’s SIP 

submission did not adequately satisfy 

the RHR requirements in full, we have 

not only the authority, but a duty to 

promulgate a FIP that meets those 

requirements. The EPA disagrees that 

the additional emission reductions 

required by our proposed FIP are 

unnecessary, as we have demonstrated 

that the State’s SIP does not meet the 

requirements of 40 CFR 51.308. Our FIP 

action is only intended to ensure that 

CAA requirements are satisfied in 

accordance with our authority under the 

CAA. 

Comment: We received numerous 

comments that monitoring data shows 

that the worst visibility days are due to 

wildfires and that EPA should be 

focusing on these emissions and not on 

nitrate emissions from stationary 

sources, which have little impact on 

poor visibility days. One commenter 

pointed out data from Class I areas in 

Wyoming that show organic carbon and 

elemental carbon, which are indicators 

of wildfire, are major contributors on 

poor visibility days compared to 

nitrates. Another commenter stated that 

the only EPA policy to address fires is 

the Interim Air Quality Policy on 

Wildland and Prescribed Fires which 

has not been updated since 1998 and 

that the EPA is not taking action on this 

core issue. 

Response: While we agree that 

industrial facilities are not the only 

causes of haze, we disagree with the 

thrust of this comment. We provide a 

detailed response to comments relating 

to wildfires and natural conditions in 

the modeling section of this response to 

comments. Regardless of the 

contribution from wildfire emissions, 40 

CFR 51.308(d)(3)(iv) states, ‘‘The State 

must identify all anthropogenic sources 

of visibility impairment considered by 

the State in developing its long-term 

strategy. The State should consider 

major and minor stationary sources, 

mobile sources, and area sources.’’ As 

discussed elsewhere, in its submittal the 

State identified a number of stationary 

sources as potential contributors to 

visibility impairment (i.e. potentially 

affected sources). The State was 

required, at a minimum, to evaluate the 

five statutory BART factors and four 

statutory reasonable progress factors for 

potentially affected sources and to 

reasonably determine controls, and we 

are required to evaluate the State’s 

determination. 40 CFR 51.308(e) and 40 

CFR 51.308(d)(3)(iv), respectively. The 

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

and 40 CFR 51.308(e) are not dependent 

on the showing of a certain amount of 

impairment from point sources. 

Comment: The CAA and the RHR 

require SIPs to set forth goals, expressed 

in deciviews, that assure ‘‘reasonable 

progress toward meeting the national 

goal’’ of ‘‘natural visibility conditions 

[in Class I areas] by the year 2064.’’ 42 

U.S.C. 7491(a)(4), (b); 40 CFR 

51.308(d)(1)(i)(A). The goals ‘‘must 

provide for an improvement in visibility 

for the most impaired days over the 

period of the implementation plan and 

ensure no degradation in visibility for 

the least impaired days over the same 

period.’’ 40 CFR 51.308(d)(1). To 

establish these goals, a state must also 

‘‘[a]nalyze and determine the rate of 

progress needed to attain natural 

visibility conditions by the year 2064,’’ 

by ‘‘compar[ing] baseline visibility 

conditions to natural visibility 

conditions [in Class I areas] and 

determin[ing] the uniform rate of 

visibility improvement’’ necessary to 

achieve natural conditions by 2064. 40 

CFR 51.308(d)(1)(i)(B). 

Wyoming’s SIP meets these 

requirements. See SIP, at 114–31. The 

SIP calculates and compares baseline 

and natural visibility conditions, Id. at 

114–15, analyzes the rate of progress 

needed to attain natural visibility 

conditions by 2064, Id., and establishes 

a uniform rate of progress, Id. Wyoming 

also ensured improvement in visibility 

on the most impaired days and no 

degradation on the least impaired days. 

See Id. at 115 (Table 7.2.1). And, most 

importantly, the SIP establishes 

reasonable progress goals. Id. at 127– 

131. The CAA and the RHR also require 

states to make reasonable progress 

determinations for particular sources by 

‘‘[c]onsider[ing] the costs of compliance, 

the time necessary for compliance, the 

energy and non-air quality 

environmental impacts of compliance, 

and the remaining useful life of any 

potentially affected sources, and 

includ[ing] a demonstration showing 

how these factors were taken into 

consideration in selecting the goal.’’ 40 

CFR 51.308(d)(l)(i)(A). 

Wyoming also met this requirement. 

The SIP clearly explains how Wyoming 

considered these factors and identified 

sources impacting visibility in Class I 

areas. See SIP, at 116–17. Wyoming then 

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explained in its SIP how it applied the 

factors to each individual source. See Id. 

at 117–27. The SIP therefore meets the 

requirements of the Act and the RHR. 

Response: As discussed elsewhere, we 

have evaluated Wyoming’s BART and 

reasonable progress determinations and 

we are disapproving them for Dave 

Johnston Unit 3, Wyodak Unit 1, and 

Laramie River Station Units 1–3. 

Because the State did not reasonably 

consider the statutory BART factors for 

these sources, the State also failed to 

adequately demonstrate (to the extent 

that the State relied on its BART 

determinations to demonstrate the 

required consideration of the reasonable 

progress factors) that the reasonable 

progress factors were appropriately 

considered in establishing the RPGs. 

The State also failed to adequately 

demonstrate, based on the statutory 

BART and reasonable progress factors, 

that achieving the URP was not 

reasonable and that the selected RPG is 

reasonable. Given our evaluation of 

these two demonstrations and the 

comments received, we have 

determined that the selected RPGs do 

not provide for reasonable progress 

towards natural visibility conditions. 

In making this determination, we are 

not limited to merely noting whether 

the State has submitted an analysis that 

purports to consider the BART and 

reasonable progress statutory reasonable 

progress factors. Instead, we evaluate 

whether the State reasonably assessed 

the statutory BART and reasonable 

progress factors as applied to potentially 

affected sources and, based on those 

factors, reasonably determined whether 

controls were required for this planning 

period. In this case, the State did not do 

so. 

As discussed earlier, because the State 

failed to meet the requirements of 

§ 51.308(d)(1)(i) and (ii) when the State 

selected its RPGs as part of the State’s 

Regional Haze SIP, EPA is obligated to 

promulgate a regional haze FIP to meet 

those requirements. 

We do agree that the State did 

correctly calculate and compare 

baseline and natural visibility 

conditions, analyzed the rate of progress 

needed to attain natural visibility 

conditions by 2064, and established a 

URP. We agree that Wyoming’s SIP 

ensured improvement in visibility on 

the most impaired days and no 

degradation on the least impaired days, 

as does our FIP. 

Comment: EPA acknowledges that 

Wyoming evaluated the requisite four 

factors in its reasonable progress 

determinations. 78 FR 34785. But, EPA 

asserts that Wyoming incorrectly 

calculated costs in those 

determinations. Id. EPA, however, does 

not explain how Wyoming incorrectly 

calculated costs. EPA asserts first that 

‘‘EPA’s rationale for disapproving the 

State’s reasonable progress 

determination[s] . . . can be found in 

Section VIII.B of [the proposal].’’ ld. at 

34763. Section VIII.B—the location of 

EPA’s supposed ‘‘rationale’’—only 

reiterates EPA’s general allegation of 

deficiencies in the control cost 

estimates. Id. at 34785. EPA therefore 

has not described with any meaningful 

degree of specificity the supposed errors 

that justify rejecting the State’s 

reasonable progress determinations. 

EPA’s failure to provide an intelligible 

justification for its action is unlawful 

and arbitrary, and precludes Wyoming 

from offering a more meaningful 

response. 

Response: We disagree. First, the 

commenter fails to fully disclose EPA’s 

proposed rationale for disapproving the 

State’s reasonable progress 

determination for Dave Johnston Units 1 

and 2. The commenter cites language 

related to our finding of deficiencies 

with the State’s cost analysis (at 78 FR 

34785), but fails to cite our fuller 

explanation for disapproving the State’s 

determination a few pages later (at 78 

FR 34787): ‘‘We disagree with the 

State’s reasoning for not adopting 

reasonable progress controls for Dave 

Johnston Unit 1 and Unit 2. If the State 

determined that it needed to adopt a 

rule or perform modeling to adequately 

assess and, if warranted, require 

reasonable progress controls, the State 

should have completed these steps 

before it submitted its regional haze SIP. 

The RHR does not allow for 

commitments to potentially implement 

strategies at some later date that are 

identified under reasonable progress or 

for the State to take credit for such 

commitments.’’ 

We offered this rationale in response 

to the State’s argument that no controls 

were reasonable because: (1) the State’s 

four factor analysis was limited, in that 

no guidance was provided by EPA for 

identifying significant sources and EPA 

did not establish contribution to 

visibility impairment thresholds (a 

potential fifth factor for reasonable 

progress determinations), (2) the State 

cannot, per Wyoming Statute 35–11– 

202, establish emission control 

requirements except through State rule 

or regulation, (3) the Wyoming statute 

requires the State to consider the 

character and degree of injury of the 

emissions involved—information that 

State claimed not to have, and (4) the 

State believes it has taken a strong and 

reasonable first step in identifying 

potential contributors to visibility 

impairment, and that the next step of 

creating an appropriate rule or 

regulation will be accomplished in the 

next SIP revision. 78 FR 34786. 

Therefore, our proposed rationale for 

disapproving the State’s reasonable 

progress determination for Dave 

Johnston extended beyond our concerns 

with the cost analysis. 

Even so, contrary to the commenter’s 

assertions, and though perhaps not to 

the level of detail desired by the 

commenter, we did sufficiently explain 

our concerns with deficiencies in 

Wyoming’s cost analyses, including 

those for Dave Johnston Units 1 and 2. 

Most notably, as described in Section 

VII.C of the proposed rule, we 

recognized that Wyoming had 

understated ‘‘the ability of SCR to 

reduce NOX.’’ This was most 

pronounced at Dave Johnston Units 1 

and 2 where the State assumed that SCR 

would only reduce NOX to an emission 

rate of about 0.09 lb/MMBtu (equivalent 

to an 80% reduction from 2001–2003 

baseline). As we have established 

elsewhere in response to comments, in 

this instance SCR has the ability to 

reduce NOX to an emission rate of 0.05 

lb/MMBtu or less. Therefore, it is clear 

that the State underestimated the 

emission reductions that can be 

achieved with SCR, and thereby 

miscalculated the cost effectiveness. 

And while EPA did not find that SCR 

was warranted for Dave Johnston Units 

1 and 2, it was nonetheless necessary to 

correctly calculate the cost effectiveness 

of all of the technically feasible controls 

in order to rationally evaluate the State’s 

decision to not impose any controls and 

to (had we been compelled to impose a 

FIP) select from among competing 

control options. 

Comment: The RHR clearly states that 

every implementation plan must 

include reasonable progress goals. 40 

CFR 51.308(d)(l). Those goals must be 

expressed in deciviews and must 

provide for visibility improvement on 

the most impaired days and no 

degradation on the least impaired days 

during the planning period. Id. In EPA’s 

own words, RPGs are ‘‘[t]he vehicle for 

ensuring continuing progress towards 

achieving the natural visibility goal,’’ 78 

FR 34743, which is the focal point of the 

regional haze program, see 42 U.S.C. 

749l(a)(l). 

EPA proposes to disapprove the 

State’s reasonable progress goals. 78 FR 

34767. In the same sentence, EPA 

claims to be proposing a FIP to replace 

those goals, which EPA asserts can be 

found in Section VIII.C of the notice. 

Section VIII.C reveals, however, that 

EPA has in fact failed to establish 

replacement RPGs. See Id. at 34788. 

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EPA does not set forth RPGs in 

deciviews, nor does it provide for 

visibility improvement on the most 

impaired days with no degradation on 

the least impaired days. See Id. Instead, 

EPA merely ‘‘anticipates’’ that its FIP 

would lead to improved visibility. Id. 

EPA’s anticipation falls far short of the 

plain requirements of the RHR— 

concrete, deciview-based reasonable 

progress goals that provide for improved 

visibility on the worst days and no 

degradation on the best days. EPA’s 

failure to establish RPGs to replace the 

SIP goals EPA proposes to disapprove is 

therefore unlawful. 

EPA justifies its failure to establish 

the requisite RPGs by explaining that it 

‘‘could not re-run the modeling due to 

time and resource constraints [.]’’ Id. 

This excuse stands in stark contrast to 

EPA’s response to similar claims the 

State raised in the context of reasonable 

progress. For example, the State 

explained to EPA that the State could 

not complete its evaluation of the 

impacts to visibility from oil and gas 

sources until the WRAP completes its 

emission inventory study. Id. at 34764– 

34765. EPA responded that ‘‘If the State 

determined that additional information 

was need . . . the State should have 

developed the information.’’ Id. at 

34765. Similarly, the State explained to 

EPA that it needed to conduct 

additional modeling before it could 

justify controls for the Mountain 

Cement kiln. Id. at 34765–34766. Again 

setting forth its dual standard, EPA 

responded that ‘‘If the State determined 

that it needed to adopt a rule or perform 

modeling . . . the State should have 

completed these steps before it 

submitted its regional haze SIP.’’ Id. at 

34766. 

Response: EPA disagrees with this 

comment to the extent it argues that we 

should approve the State’s RPGs. We 

note that the State did not, in setting its 

RPGs, re-run its modeling to reflect the 

State’s selected controls. Instead, the 

State relied on WRAP modeling that 

reflected certain generic assumptions 

about the level of controls. See Wyo. 

309(g) SIP, pages 53 and 127. As we 

have explained elsewhere, regardless of 

how the State quantified its RPGs, they 

cannot be approved, as the State failed 

to appropriately consider the four 

statutory reasonable progress factors for 

the sources the State selected as 

potentially affected sources. See 40 CFR 

51.308(d)(1)(i)(A). In addition, the State 

cannot rely on the BART determinations 

that we are disapproving to show 

reasonable progress for those sources. 

Because we must disapprove the State’s 

RPGs, and RPGs are a required 

component of a regional haze SIP, we 

must promulgate our own. We note that 

the RPGs are not directly enforceable. 40 

CFR 51.308(d)(1)(v). The elements that 

directly impact sources and visibility 

are the emissions limitations in the 

long-term strategy, including those for 

BART and those for the reasonable 

progress sources. 

Comment: When determining the 

responsibility for regional haze, 

Sweetwater County strongly believes 

that the DEQ and EPA need to 

investigate the contribution to 

Wyoming’s haze problem by sources 

located outside of the United States, 

especially from countries like China that 

do not appreciate the necessity for 

strong environmental regulations. If we 

do not consider the effects of air 

pollution contributing to our nation’s 

and our State’s air quality issues, we 

open the door for unfair competition. To 

assign the entire cost of Wyoming’s haze 

and air pollution to Wyoming industries 

without considering the effects of 

offshore sources is unfair to our 

industries, and it would cause 

unnecessary impacts to the economy of 

Wyoming and the United States. 

Response: While sources outside 

Wyoming do contribute to haze in the 

Class I areas within Wyoming, that does 

not preclude the State’s or our 

obligation to evaluate sources within the 

State according to the five BART factors 

and the four reasonable progress factors 

and to require additional controls where 

necessary. In addition, we note that the 

State did evaluate the sources of 

contribution to Class I areas in the State 

(see e.g., Chapter 5 of the SIP). 

Comment: One commenter stated that 

EPA must re-evaluate its method for 

assessing visibility impacts from 

wildfires or states will never be able to 

achieve natural background goals. The 

commenter went on to say that EPA 

should (1) eliminate the impacts from 

fire from the annual contribution to the 

deciview analysis or (2) properly 

incorporate it into the natural 

background equation to establish a glide 

path states can achieve. The commenter 

provided graphical data from the 

IMPROVE network to show the 

contributions to light extinction from 

organic carbon, elemental carbon, and 

nitrate. 

Response: EPA does recognize this 

issue and has taken it into consideration 

in this action on the Wyoming SIP and 

in our final FIP. We agreed that 

Wyoming did appropriately determine 

the URP needed to attain natural 

visibility conditions by 2064 and we are 

approving that determination. We are 

not disapproving Wyoming’s RPGs 

solely on the basis that they fall short of 

achieving the URP. Instead, as 

explained above, we are disapproving 

them on the basis that the State has 

failed to demonstrate that the four 

statutory reasonable progress factors 

were appropriately considered. As 

stated previously, regardless of the 

contribution from wildfire emissions, 40 

CFR 51.308(d)(3)(iv) states, ‘‘The State 

must identify all anthropogenic sources 

of visibility impairment considered by 

the State in developing its long-term 

strategy. The State should consider 

major and minor stationary sources, 

mobile sources, and area sources.’’ As 

discussed elsewhere, in its submittal the 

State identified a number of stationary 

sources as potential contributors to 

visibility impairment (i.e. potentially 

affected sources) and was required, at a 

minimum, to evaluate the five statutory 

BART factors and four statutory 

reasonable progress factors for 

potentially affected sources and to 

reasonably determine controls, and we 

are required to evaluate the State’s 

determination. 40 CFR 51.308(e) and 40 

CFR 51.308(d)(3)(iv), respectively. 

2. Reasonable Progress Sources 

a. Oil and Gas Sources 

Comment: We received comments 

that volatile organic compound (VOC) 

emissions from the oil and gas industry 

must be controlled under reasonable 

progress. Commenters asserted that EPA 

acknowledged that oil and gas sources 

emit haze-causing VOCs but 

inexplicably failed to analyze whether 

reducing such VOC emissions is 

reasonable. One commenter pointed out 

that EPA has just designated Sublette 

County (and portions of Sweetwater and 

Lincoln Counties) in nonattainment 

with the 8-hour ozone national ambient 

air quality standard, so there is no doubt 

the ozone levels in Sublette County are 

of great concern. Commenters pointed 

out that ozone severely impairs 

visibility; the failure to consider 

strategies to limit oil and gas industry 

VOC emissions was a significant 

oversight on both the part of the State 

and EPA. Thus, commenters concluded 

that EPA must correct this problem by 

analyzing and imposing reasonable 

progress controls on oil and gas industry 

VOC emissions. 

Commenters pointed out that there 

are numerous opportunities to reduce 

VOC emissions from the oil and gas 

industry. These include requiring all oil 

and gas fields in the State to control 

VOC emissions to the same extent 

currently required in the Pinedale 

Anticline and Jonah fields pursuant to 

the State’s BACT guidelines, 

implementing recommendations from 

the Upper Green River Basin Air Quality 

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Citizens Advisory Task Force, and 

adoption of a statewide offset program. 

Response: We disagree with this 

comment. The commenters did not 

provide any evidence of the impact of 

VOC emissions on visibility in Class I 

areas. 

Comment: Wyoming claims that 

regulation of drilling rigs is problematic 

because drilling rigs are mobile sources 

over which states have limited CAA 

authority. EPA is not similarly 

constrained and may require emissions 

reductions from drilling rigs in a FIP. 

Replacement of Tier 2 engines with Tier 

4 engines on drilling rigs has a cost 

effectiveness value as low as $900/ton, 

which is very reasonable. 

Response: EPA disagrees with this 

comment. The costs noted by the 

commenter for controls for drill rig 

engines are the lower end of the costs 

presented by the State. For replacement 

of Tier 2 engines with Tier 4 engines, 

the State presented costs of $900 to 

$2400 per ton of NOX removed, but the 

commenter cited only the $900 per ton 

figure. To the extent that drill rig 

engines could be regulated under the 

RHR, this range of costs is not so low 

that we are prepared to disapprove the 

State’s determination in the reasonable 

progress context. 

Comment: EPA states it disagrees with 

the State’s reasoning for not adopting 

reasonable progress controls for the for 

oil and gas sources. It is our view that, 

having made this finding, it is 

inappropriate for EPA to then propose 

approval of the State’s control plan, a 

plan which would involve no new 

controls on the oil and gas sector. 

Having found that the State’s RPGs were 

not justified, the EPA must put in place 

a FIP establishing RPGs for the oil and 

gas sector or ask the State to revise its 

plan. 

There are numerous available means 

for controlling NOX from the oil and gas 

sector, which is the primary focus that 

EPA has. For example, the State has 

begun regulating NOX emissions from 

drill rigs on the Pinedale Anticline and 

Jonah Field. The State has put in place 

a number of regulations on those drill 

rigs. We believe there is no reason this 

could not be extended to other fields in 

other portions of the state. 

Response: We disagree with this 

comment. First, we did not propose 

approval of the State’s control plan in 

its entirety. Instead, we proposed to 

disapprove the State’s reasonable 

progress determination for Dave 

Johnston Units 1 and 2; we also 

proposed to disapprove the State’s 

RPGs. We then proposed a FIP for the 

RPGs. While we are approving the 

State’s reasonable progress 

determination for Dave Johnston Units 1 

and 2, we are still finalizing a FIP for 

the RPGs, as we have disapproved some 

of the State’s BART determinations. 

Second, as we stated in our proposal, 

although we disagree with the State’s 

reasoning with respect to the oil and gas 

sector, after considering the costs 

presented by the State, we find that they 

are not so low that we are prepared to 

disapprove the State’s determination in 

the reasonable progress context. With 

respect to NOX emissions generally from 

the oil and gas sector, as discussed 

elsewhere, Wyoming applies minor 

source BACT to these sources. For drill 

rig engines in particular, see our 

response above. Finally, with respect to 

visibility impacts of NOX emissions 

from oil and gas sources on Class I 

areas, this comment provided no 

particular data. We respond below to 

other comments on visibility impacts of 

oil and gas sources. 

Comment: The State provided sound 

reasoning for not adopting reasonable 

progress controls for oil and gas sources. 

Wyoming is an oil and gas production 

state, along with Colorado, North 

Dakota, New Mexico, Montana, and 

Utah. One of the biggest challenges 

faced by these WRAP states has been to 

inventory the emissions from this 

industry. At the beginning of the 

regional haze process, a comprehensive 

emission inventory of oil and gas 

production operations in the western 

region that covered both point and area 

sources had not been developed. No 

methodology had been developed to 

produce an inventory of this scope. The 

WRAP oil and gas states collaborated to 

develop and implement a uniform 

procedure for estimating area source 

emissions from oil and gas operations. 

WRAP initiated a study to focus on 

estimating emissions of pollutants with 

the potential to impair visibility near 

Class I areas in the West, particularly 

NOX emissions. 

Developing this inventory has been 

one of the most important tasks that 

needed to be completed before any of 

the western states could begin to look at 

imposing controls for improving 

visibility. In addition to developing 

these critical inventories, the State has 

also been very active in identifying and 

controlling emissions from the oil and 

gas industry. Wyoming has been ahead 

of the curve when it comes to 

controlling emissions from this industry 

to protect health standards. The EPA’s 

recently finalized national oil and gas 

regulations to reduce air pollutants from 

the oil and gas production industry 

were patterned in large part after what 

Wyoming has been doing since the early 

1990’s. Since 2005, the State has been 

spending more time and resources to 

study and control emissions from 

natural gas production than any other 

sector. 

When it came time to address 

visibility impacts associated with the oil 

and gas industry for the RHR, Wyoming 

completed the required reasonable 

progress analysis. Wyoming also laid 

out reasons for why the time was not 

right for requiring additional controls on 

the industry to reduce visibility 

impairment, including lacking the very 

critical information to be supplied by 

the WRAP inventory study. In spite of 

Wyoming’s diligent efforts, EPA 

disagrees with the State’s reasoning for 

not adopting reasonable progress 

controls for the industry during the first 

planning period. 

EPA has completely misunderstood 

the purpose of the collaborative study to 

develop and implement a uniform 

procedure for estimating area source 

emissions from oil and gas operations. 

Wyoming could not have developed 

such a procedure on their own, and it 

continues to make no sense for each 

state in the West to develop 

independent emission inventories that 

cannot be compared to neighboring state 

inventories for a regional effort. EPA 

should understand this better than any 

individual state, since it relies on 

consistency in comprehensive national 

inventories to develop sound national 

rules. While Wyoming waits for the 

WRAP inventory study to be completed, 

it has not been idle with respect to 

developing information on the oil and 

gas industry. The State has invested 

huge resources in understanding 

emissions from this industry and EPA’s 

suggestion that the State ‘‘just develop 

the information’’ shows a total lack of 

understanding of the problem. 

EPA’s whole issue is about 

substituting its view regarding timing in 

place of Wyoming’s reasoned judgment. 

Wyoming is hopeful that as it addresses 

ozone nonattainment it can also 

demonstrate the co-benefits to 

improving visibility just as EPA has 

done in the East by developing an ozone 

control strategy that also demonstrates 

adequate visibility improvement. 

Wyoming’s effort goes beyond the first 

planning period, and is in accordance 

with the RHR. Wyoming respectfully 

requests that EPA acknowledge that 

Wyoming participation in the regional 

inventory development process satisfies 

reasonable progress for this first 

planning period. 

Response: We do commend the State 

for the work it is doing on developing 

more comprehensive information on oil 

and gas emissions although we disagree 

with this comment. As we stated in our 

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proposed notice, we disagree with the 

State’s reasoning for not adopting 

reasonable progress controls for oil and 

gas sources. If the State determined that 

additional information on emission data 

from oil and gas sources was needed to 

potentially control oil and gas sources, 

the State should have developed the 

information in time for incorporation 

into their SIP. 

Comment: Wyoming’s booming oil 

and gas industry has a significant and 

growing impact on visibility in the 

State’s national parks and wilderness 

areas. Given the close proximity of some 

of Wyoming’s largest planned oil and 

gas fields to the Bridger and Fitzpatrick 

wilderness areas—between just 10 and 

200 miles—these magnificent lands in 

western Wyoming suffer the greatest 

visibility impairment due to oil and gas 

activities. The 4,399 additional 

approved wells in the Pinedale 

Anticline Oil and Gas Exploration and 

Development Project alone are projected 

to degrade visibility in the Bridger 

Wilderness by up to 6.1 deciviews, and 

to cause impacts greater than 1.0 

deciview on 45 days of each year. This 

impact is in addition to the impairment 

caused by the existing 1,819 wells in the 

Pinedale Anticline area, and the impacts 

from the numerous other existing and 

planned oil and gas fields in the region. 

Wyoming and EPA are obligated to 

reduce haze-causing emissions from the 

State’s oil and gas industry to achieve 

‘‘reasonable progress’’ toward the 

national goal of eliminating humancaused visibility impairment in Class I 

areas, 42 U.S.C. 7491(b)(2)(B), and doing 

so by a target year of 2064, 40 CFR 

51.308(d)(1)(i)(B), (ii). See also 42 U.S.C. 

7491(b) (requiring ‘‘measures as may be 

necessary to make reasonable progress 

toward meeting the national [visibility] 

goal’’). Under Wyoming’s Regional Haze 

SIP, natural visibility conditions would 

not be reached in Wyoming’s Bridger 

and Fitzpatrick Wilderness Areas until 

2165—more than 100 years past the 

2064 goal set by EPA. Wyo. 309(g) SIP 

at 115. Although EPA’s proposed FIP 

includes additional measures that 

would hasten visibility improvement, 

EPA projects that Wyoming Class I areas 

still will not achieve the URP necessary 

to restore natural visibility by 2064. 78 

FR 34788. Thus, EPA must demonstrate 

the reasonableness of its decision not to 

require emissions reductions from oil 

and gas activities that could make 

greater progress toward restoring natural 

visibility. 40 CFR 51.308(d)(1)(ii). 

Both Wyoming and EPA have failed to 

demonstrate that regulating emissions 

from Wyoming oil and gas development 

activities is not reasonable, in light of 

the facts that pollution-control 

technologies are technologically 

feasible, cost effective, and would 

improve significantly visibility across 

several affected Class I areas. EPA 

properly ‘‘disagree[s] with the State’s 

reasoning for not adopting reasonable 

progress controls for oil and gas 

sources.’’ 78 FR 34765. Specifically, 

EPA rejects the State’s view that it needs 

more time to collect information before 

it regulates the industry, stating ‘‘[i]f the 

State determined that additional 

information was needed to potentially 

control oil and gas sources, the State 

should have developed the 

information.’’ Id. EPA also rejects 

Wyoming’s claim that it needs up to two 

years to develop necessary regulations, 

because ‘‘[i]f regulations are needed to 

implement reasonable progress controls, 

the State must develop them as part of 

the regional haze SIP.’’ See also id. at 

34764 n.43. The Conservation 

Organizations agree that Wyoming is not 

excused from regulatory requirements to 

commit reasonable emissions reductions 

from the oil and gas industry in the 

current planning period simply because 

Wyoming thinks more information 

about oil and gas activity emissions 

would be desirable. See 78 FR 34765. As 

we pointed out in previous comments, 

ample information about oil and gas 

industry emissions and their visibility 

impacts has already been developed and 

published in numerous state and federal 

environmental impact statements. 

Response: EPA disagrees with the 

portions of this comment that take issue 

with our proposed action. We 

acknowledge the comment’s support for 

our statement that Wyoming could not 

rely on the lack of data for the State’s 

determination for oil and gas sources. 

With respect to the projected visibility 

impacts of future oil and gas 

production, we note that the analysis 

cited by the commenter relied on a 

background ammonia level of 1 ppb to 

determine visibility impacts on the 

Bridger Wilderness. Elsewhere, we 

explain why we reconsidered use of a 

background ammonia level of 2 ppb for 

modeling visibility impacts to the 

Bridger Wilderness; as a result we 

remodeled using both a monitored 

monthly varying concentration and an 

IWAQM default of 0.5 ppb for 

background ammonia. Thus, the 

analysis cited by the commenter may 

overstate visibility impacts. 

Furthermore, modeling of the visibility 

impacts alone does not quantify the 

potential visibility benefits of the 

controls the commenter supports. 

The comment cites 40 CFR 

51.308(d)(ii), which requires states (or 

EPA in this instance) to demonstrate, 

when the RPGs fall short of the URP, 

that the RPGs are reasonable and 

achieving the URP is unreasonable. As 

we stated in our proposal, we found this 

to be the case due to the results of the 

four-factor analyses along with 

emissions from sources outside the 

WRAP domain. The commenter does 

not take issue with the latter, and we 

explain elsewhere that we continue to 

think that the controls considered by 

Wyoming are not so cost-effective that it 

was necessarily unreasonable for 

Wyoming to require them. 

Comment: Although Wyoming’s 

January 2011 SIP identified in particular 

a need for the WRAP to complete its 

‘‘Phase III’’ inventory of Wyoming oil 

and gas emissions before requiring 

additional regulations of the industry, 

that inventory was completed in 

November 2012. WRAP prepared 

technical memorandums specific to 

three areas in Wyoming—the Powder 

River Basin, the Wind River Basin, and 

the Greater Green River Basin— 

identifying both baseline emissions in 

2006 and projected emissions in 2015. 

Indeed, WRAP even has completed 

‘‘Phase IV’’ of its emissions inventory 

project, updating oil and gas industry 

baseline emissions as of 2009 for 

specific regions, including all three 

regions of Wyoming that were evaluated 

in Phase III. Thus, Wyoming has no 

justification based on incomplete data 

for refusing to identify oil and gas 

emissions control technology to satisfy 

reasonable progress requirements. And 

there should be no reason for EPA to 

accept Wyoming’s invalid and outdated 

claim that more emissions information 

is needed when that information was 

available for more than six months prior 

to EPA’s most recent Wyoming regional 

haze proposal. 

Response: We disagree with this 

comment to the extent that it argues we 

should not approve Wyoming’s decision 

to not impose controls on oil and gas 

sources. We did state in our proposal 

that the lack of emissions data was not 

an appropriate justification for 

Wyoming’s decision to not impose 

controls on oil and gas sources. Instead, 

we proposed to approve Wyoming’s 

decision based on the cost of controls 

and on the application of minor source 

BACT. The comment does not identify 

anything in the November 2012 data 

that affects that rationale and does not 

explain how emissions data would 

change the cost of controls or the 

application of the SIP-approved minor 

source BACT provisions. Thus the 

comment does not give a reason for us 

to change our decision. 

Comment: While EPA rejects 

Wyoming’s rationale for refusing to 

limit haze causing pollutants from this 

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booming industry, EPA provides 

insufficient rationale of its own to 

justify the omission. EPA provides two 

reasons for proposing to accept the 

State’s plan not to require NOX

emissions reductions from Wyoming oil 

and gas sources. First, ‘‘the most 

reasonable controls are for compressor 

engines, which the State already 

controls through its minor source BACT 

requirements.’’ 78 FR 34765 & n.25 

(citing Wyoming Air Quality Standards 

and Regulations, Chapter 6, Section 2). 

Second, ‘‘while the costs of some 

controls are within the range of cost 

effectiveness values Wyoming, other 

states, and we have considered as 

reasonable in the BART context, they 

are not so low that we are prepared to 

disapprove the State’s conclusion in the 

reasonable progress context.’’ Id. at 

34765. Neither contention is 

supportable. 

EPA is wrong that compressor engine 

NOX emissions are regulated through 

Wyoming’s minor source BACT 

requirements. Wyoming’s minor source 

BACT guidelines for the oil and gas 

industry only regulate VOC and 

hazardous air pollutants, not NOX. The 

guidelines make no provisions for NOX

controls at all. See State of Wyoming, 

Oil and Gas Production Facilities 

Chapter 6, Section 2 Permitting 

Guidance (presenting controls that 

apply to VOC and hazardous air 

pollutants, but not NOX). 

Moreover, EPA’s singular focus on 

compressor engines overlooks the 

numerous other opportunities to 

significantly reduce haze-causing 

emissions from oil and gas operations. 

As even Wyoming’s analysis 

demonstrates, cost-effective options are 

available to achieve high control 

efficiency of NOX emissions from drill 

rig engines, turbines, and process 

heaters. See 78 FR 34764 (Table 26). 

Response: We disagree with this 

comment. Chapter 6, Sections 2 and 4, 

which are approved into the State’s SIP, 

both require BACT for new source 

compressor engines for regulated 

pollutants, which includes NOX and 

VOC. These regulatory requirements 

should not be confused with the State’s 

oil and gas permitting guidance, which 

is not part of the SIP. The State 

guidance document provides additional 

compliance information for select 

sources of oil and gas VOC emissions, 

such as dehydration units, pumps and 

tanks. There are many sources which 

are regulated by the State’s SIP and 

required to apply controls that are not 

included in the oil and gas permitting 

guidance. 

We also explained the reason we 

discussed compressor engines in 

particular: the cost of controls for those 

sources was the most reasonable. For 

other oil and gas sources, the costs were 

generally higher. As we stated in our 

proposal, those costs were not so low 

that EPA could find it necessarily 

unreasonable for the State to not have 

adopted them. The comment gives us no 

reason to think otherwise. 

Comment: EPA’s justification that the 

costs of available controls are 

reasonable, but not so low that EPA is 

willing to require them, is both arbitrary 

and factually flawed. See 78 FR 34765 

(‘‘the costs of some controls are within 

the range of cost effectiveness values 

Wyoming, other states, and we have 

considered as reasonable in the BART 

context’’). EPA’s justification is arbitrary 

because it has not identified any 

objective threshold or rationale for 

reaching the determination that costs, 

although low, are still too high to justify 

modifying Wyoming’s SIP 

determination. 

Indeed, EPA rejected Wyoming’s 

determination not to require reasonable 

progress controls for Dave Johnston 

Units 1 and 2, where the controls would 

cost approximately $1,000/ton of NOX

removed. See id. at 34788 (‘‘Given 

predicted visibility improvement of 

approximately 0.30 deciviews per unit 

at the most impacted Class I area and 

the fact that Wyoming’s RPGs will not 

meet the URP, we find that it was 

unreasonable for the State to reject these 

very inexpensive controls.’’). EPA’s 

statement that control technologies with 

similar—and even lower—costs were 

not justified for the oil and gas industry 

cannot be squared with this 

determination for Dave Johnston Units 1 

and 2. See id. at 34765. As shown in 

Table 26 (of the proposed FIP), 

emissions controls for compressor 

engines are available in the $16 to 

$1,200/ton range. Id. at 34764. 

Enhanced NOX-control technologies for 

drill rigs have cost-effectiveness values 

of $900 to $1,000/ton. Id. 

Controls for NOX emissions from 

turbines are very cost effective at around 

$560/ton. Id. All of these costs are at or 

below the costs that were deemed ‘‘very 

reasonable’’ at the Dave Johnston power 

plant and which led to EPA rejecting the 

State’s reasonable progress control 

proposal. If finalized, EPA’s contrary 

proposal for the Wyoming oil and gas 

industry would be arbitrary. 

Response: EPA disagrees with this 

comment. The comparison with the 

costs of controls at Dave Johnston Units 

1 and 2 is not apropos. First, as 

explained elsewhere, certain oil and gas 

sources are subject to the State’s SIPapproved construction permit program, 

including the requirement for minor 

source BACT. On the other hand, as 

explained below in response to 

PacifiCorp’s comments, PacifiCorp did 

not identify (nor is EPA aware of) any 

NOX control measures for Dave Johnston 

Units 1 and 2. Second, we did not 

propose to reject the State’s 

determination for these units solely on 

the basis of the cost-effectiveness of 

controls. In addition, the State relied on 

impermissible factors to disregard the 

results of its own four-factor analysis. 

Third, to assist in determining whether 

the state’s determination for Dave 

Johnston Units 1 and 2 was reasonable 

or not, we have quantified the visibility 

benefits of controls and decided that the 

State’s determination was not so 

unreasonable that we were prepared to 

disapprove it. Neither the commenter 

nor EPA has equivalent data for the oil 

and gas sources that the commenter 

mentions. The visibility benefits of the 

commenter’s suggested controls would 

of course vary considerably depending 

on the location of the source and other 

factors, and the data the commenter 

cites elsewhere regarding the bulk 

visibility impacts of oil and gas 

development do not address visibility 

benefits. Thus, the comparison with 

Dave Johnston gives no reason to change 

our decision. Finally, the RHR does not 

require EPA to establish a hard-and-fast 

dollar per ton threshold or other 

numeric criteria for determining when a 

State’s decision to not impose controls 

on reasonable progress sources is 

unreasonable; rather all four factors are 

to be considered under the reasonable 

progress provisions of the RHR. 

Comment: Control technologies to 

reduce oil and gas industry NOX

emissions are inexpensive and justified. 

Wyoming did not identify the cost of 

available controls as an impediment to 

their implementation, and Wyoming’s 

own analysis demonstrated that costeffective controls to reduce oil and gas 

industry emissions are available. See 

Wyo. 309(g) SIP at 123–26. In addition 

to Wyoming’s generic analysis, the 

Conservation Organizations have 

identified available control technology. 

For example, the Bureau of Land 

Management (BLM) recommended basic 

pollution-reduction strategies such as 

replacing internal combustion engines 

for compressors with gas turbines, 

installing SCR on drilling rig engines, 

using electric or natural gas-powered 

drilling rigs, and centralizing 

production facilities to reduce truck 

traffic. The cost-effectiveness of such 

technologies is a reason for requiring 

them as reasonable progress measures; 

costs are not a basis for allowing 

Wyoming to avoid requirements to 

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reduce the large impact of the State’s oil 

and gas industry on Class I-area 

visibility. 

Response: EPA disagrees with this 

comment. First, the commenter 

incorrectly suggests that a ‘‘generic’’ 

analysis, rather than a source-specific 

analysis, of the cost of controls for oil 

and gas sources violates the RHR. In the 

reasonable progress context, the cost-ofcompliance factor can be interpreted to 

encompass either the cost of compliance 

for individual sources or the cost of 

compliance for source categories. The 

language of 40 CFR 51.308(d)(1)(i)(A), 

cited by the commenter, does not 

explicitly require a source-specific 

analysis of the costs of compliance, 

contrary to the commenter’s assertion. 

With respect to the control measures 

identified by BLM and referred to by the 

commenter, neither the comment, nor 

the letter cited in the comment, nor the 

records of decisions by the BLM cited 

by the letter, provide any data on the 

cost-effectiveness of these measures. 

The comment has no basis to describe 

the control measures identified by BLM 

as cost-effective. 

Comment: When a SIP fails to 

establish an emissions reduction 

strategy that would achieve natural 

visibility conditions by 2064, as is the 

case in Wyoming, the state must 

demonstrate that the underlying 

‘‘uniform rate of progress’’ is ‘‘not 

reasonable[,] and that the progress goal 

adopted by the State is reasonable.’’ 40 

CFR 51.308(d)(1)(ii); see also EPA, 

Guidance for Setting Reasonable 

Progress Goals Under the Regional Haze 

Program, at 2–3 (June 1, 2007) 

(demonstration should ‘‘identify and 

analyze the measures aimed at 

achieving the uniform rate of progress 

and . . . determine whether these 

measures are reasonable’’). EPA 

proposes RPGs that leave visibility 

impaired in Wyoming’s affected Class I 

areas well beyond the 2064 goal set by 

EPA. See 78 FR 34788. In light of EPA’s 

rejection of every one of Wyoming’s 

justifications for its conclusion that 

reasonable progress controls on the oil 

and gas industry are not reasonable, and 

EPA’s lack of any valid rationale of its 

own to conclude that such measures are 

not reasonable, the failure to adopt any 

measures to reduce haze-causing 

emissions from the oil and gas industry 

cannot be supported and must be 

changed in the final rule. 

Response: EPA disagrees with this 

comment. In our proposal we 

specifically stated our rationale for 

agreeing with Wyoming’s determination 

to not impose controls on oil and gas 

sources during this planning period. We 

respond elsewhere to the commenter’s 

disagreement with that rationale. 

Because we are disapproving the State’s 

RPGs, as part of our FIP we are 

imposing RPGs that are consistent with 

the controls in our FIP and the controls 

that we are approving in the State’s SIP. 

We stated in our proposal that it was 

reasonable for the RPGs to fall short of 

the URP based not only on our 

consideration of the four statutory 

reasonable progress factors, but also 

based on emissions from sources 

outside the WRAP domain, which the 

commenter does not take issue with. 

Comment: EPA proposes to approve 

Wyoming’s reasonable progress 

determinations for oil and gas sources. 

78 FR 34765. However, EPA states that 

it ‘‘disagree[s] with the State’s reasoning 

for not adopting reasonable progress 

controls for oil and gas sources.’’ Id. 

Wyoming explained in its SIP that it 

required additional information before it 

can determine whether and to what 

extent additional controls are necessary 

for oil and gas sources. Id. EPA thinks 

Wyoming should have obtained the 

additional information before 

submitting its SIP, though, EPA does not 

hold itself to this same standard. 

Nonetheless, EPA has previously 

recognized Wyoming’s expertise and 

leadership in regulating the air quality 

impacts of oil and gas development. 76 

FR 52738, 52757 (Aug. 23, 2011). In 

light of Wyoming’s leadership in 

regulating air pollution from oil and gas 

development, EPA should approve 

Wyoming’s reasonable progress 

determination for oil and gas sources. 

Response: EPA disagrees with this 

comment. We are approving Wyoming’s 

reasonable progress determination for 

oil and gas sources, although not on the 

State’s basis. The notice cited in the 

comment relates to EPA’s development 

of new source performance standards 

for oil and gas sources, which is not 

relevant to this action. As we explained 

in our proposal and elsewhere in these 

responses, the RHR sets certain 

requirements for reasonable progress for 

the first planning period and does not 

provide for deferring those requirements 

to later planning periods; thus, the 

State’s basis for its reasonable progress 

determination for oil and gas sources is 

invalid. Finally, while we did not re-run 

the WRAP modeling to quantify our 

RPGs, the State did not modify its RPGs 

or re-run the WRAP modeling to reflect 

the controls the State selected. 

Comment: We received numerous 

comments urging EPA to require 

pollution controls on the oil and gas 

industry. 

Response: There are a number of 

provisions in the CAA that potentially 

apply to oil and gas sources. With 

respect to the requirements of the RHR 

for those sources, we have evaluated 

Wyoming’s submittal and we are 

approving it. 

b. Dave Johnston Units 1 and 2 

Comment: Wyoming did not evaluate 

the effectiveness of the LNB+OFA+SCR 

option. Instead, Wyoming assumed 

addition of SCR to these currently 

uncontrolled EGUs would only reduce 

NOX emissions by 79% down to 0.12 lb/ 

MMBtu on an annual average basis, 

although it is generally assumed that 

SCR can reduce NOX emissions by 90% 

or down to 0.05 lb/MMBtu (or lower). 

Wyoming has not provided any 

documentation or justification to 

support the higher emission rates used 

in its analyses. Such an approach at 

Johnston adversely biases the costbenefit analysis and is inconsistent with 

other EPA analyses. 

Response: The commenter has 

incorrectly assumed that a 90% control 

efficiency can be achieved in all SCR 

applications regardless of the input NOX

emission rate or other parameters. In 

addition, we note that the emission rate 

analyzed by Wyoming, 0.07 lb/MMBtu, 

was on a 30-day rolling average basis, 

not an annual basis. Regardless, we 

agree that SCR can in most cases 

achieve a performance rate of 0.05 lb/

MMBtu on an annual basis. (See section 

IV.C.4 of this rulemaking for more 

information on the control effectiveness 

of SCR.) We have revised the SCR costs 

for Dave Johnston Units 1 and 2 

accordingly. However, as explained 

elsewhere, the revised costs for SCR 

have not led us to change our 

determination that the State was 

reasonable in not selecting SCR for 

Units 1 and 2. 

Comment: Wyoming has assumed that 

Dave Johnston Unit 1 and Unit 2 

emitted at 0.57 lb/MMBtu on an annual 

basis and used this as the baseline 

condition from which to calculate the 

control efficiency it used for each 

control option. However, our review of 

CAMD data back to 2000 shows that the 

highest annual NOX emission rate for 

Unit 1 was 0.474 lb/MMBtu (2002) and 

0.460 lb/MMBtu for Unit 2 (2006). For 

the 2001–2003 baseline period, annual 

NOX emissions were 0.46 and 0.44 lb/ 

MMBtu for Johnston Unit 1 and Unit 2, 

respectively. Thus, Wyoming’s proposal 

to reduce NOX to 0.20 lb/MMBtu with 

LNB+OFA represents a 56% reduction 

instead of 65% assumed by Wyoming. 

Response: In our revised cost analysis, 

we used baseline emissions for Dave 

Johnston Units 1 and 2 that reflect 

annual average emissions between 2001 

and 2003, as found in the CAMD 

emissions system. These baseline rates 

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238Staudt memo, Tables 2 and 3. 

are 0.45 lb/MMbtu and 0.41 lb/MMBtu, 

respectively. This corresponds to a 

56.0% and 54.6% reduction, 

respectively.238 Therefore, our revised 

cost analysis has addressed the concern 

raised by the commenter. As explained 

elsewhere, our revised costs have been 

taken into account, along with our 

revised visibility modeling, in our 

decision to approve the State’s 

determination to not impose controls at 

Units 1 and 2. 

Comment: The Conservation 

Organizations agree with EPA that 

reasonable progress controls for NOX

emissions are needed for Dave Johnston 

Units 1 and 2. EPA correctly found that 

it was unreasonable for Wyoming to 

reject cost effective NOX controls that 

would improve visibility. EPA proposes 

to require only LNBs/OFA to achieve a 

NOX emission limit of 0.20 lb/MMBtu 

(30-day rolling average). While we 

commend EPA for proposing a FIP to 

reduce NOX emissions from Dave 

Johnston Units 1 and 2, we urge EPA to 

require SCR plus LNBs/OFA to meet a 

NOX emission limit of 0.05 lb/MMBtu to 

achieve reasonable progress. Although 

EPA concluded that the cost of SCR is 

not justified by the projected visibility 

improvement, EPA’s analysis 

unreasonably assumed that SCR would 

only achieve a NOX emission rate of 

0.12 lb/MMBtu, even though an 

emission rate of 0.05 lb/MMBtu is 

readily achievable. Correcting for this 

error, it appears that SCR at Dave 

Johnston Units 1 and 2 is very cost 

effective at $2,001 and $1,987/ton of 

NOX removed, respectively. 

Accordingly, EPA should reconsider 

requiring SCR at Dave Johnston Units 1 

and 2 to meet reasonable progress 

requirements. 

Response: As discussed in our 

proposed rulemaking, we have revised 

the SCR cost analysis for Dave Johnston 

Units 1 and 2 to reflect the installation 

of LNB and OFA. However, our revised 

cost effectiveness values of $3,496/ton 

and $3,672/ton, respectively, are much 

higher than those suggested by the 

commenter. We also note that the 

incremental costs for this option are 

high, at $9,798 and $9,588 per ton, 

respectively. In light of this, and our 

revised modeling results, we do not find 

it unreasonable for the State to not have 

imposed SCR on these units. 

Comment: EPA’s conclusion that the 

addition of SCR is not justified due to 

the ‘‘small incremental visibility 

improvement’’ is based upon a flawed 

visibility analysis that over-values the 

addition of LNB + OFA and undervalues the addition of SCR. 

Furthermore, the degree of visibility 

improvement is not one of the four 

statutory factors to be considered under 

the reasonable progress provisions of 

the RHR. Incremental visibility 

improvement is not mentioned 

anywhere in the reasonable progress 

provisions or BART Guidelines and EPA 

cannot create a new criterion for the 

sole purpose of eliminating a control 

option that is reasonably cost-effective 

and would yield a significant visibility 

improvement. 

Response: As discussed elsewhere in 

this rulemaking, we have corrected the 

modeling analysis for Dave Johnston 

Units 1 and 2, and the commenter’s 

concerns regarding our methodology 

have been addressed. Our revised 

modeling analysis shows that the 

visibility improvement associated with 

SCR with LNB and OFA at Units 1 and 

2 is 0.18 deciviews and 0.18 deciviews, 

respectively. The visibility 

improvement associated with LNB and 

OFA is 0.12 deciviews and 0.11 

deciviews, respectively. We continue to 

find that the additional visibility 

improvement is not significant enough 

to warrant selection of SCR with LNB 

and OFA for these reasonable progress 

sources. As discussed earlier, we also 

find that the visibility improvement 

from LNBs and OFA does not justify us 

requiring reasonable progress controls 

on these two units. While it is true that 

incremental visibility improvement is 

not among the four statutory reasonable 

progress factors, the RHR does not 

prohibit EPA from assessing visibility 

improvement, in addition to the four 

statutory reasonable progress factors, 

when considering controls at potentially 

affected sources. We did not create a 

new criterion for the sole purpose of 

eliminating SCR at Dave Johnston Units 

1 and 2; instead, we think it appropriate 

to consider visibility improvement 

when assessing control options for 

reasonable progress, especially when 

taking into account the purposes of the 

RHR. In comparing control options and 

selecting one, it is appropriate to 

compare the visibility improvement 

(that is, to compute the incremental 

visibility improvement) for each option. 

Comment: EPA is proposing that the 

FIP NOX BART for Dave Johnston Units 

1 and 2 is LNBs with OFA at an 

emission limit of 0.22 lb/MMBtu (30- 

day rolling average). EPA provided no 

reason for rejecting addition of SCR 

even though: (1) Cost/ton was $3,300– 

$3,400, which is less than the $3,900/

ton accepted at Laramie River Unit 3; (2) 

Visibility at the most-impacted Class I 

area would improve by more than 0.4 

deciview (which is greater than the 0.3 

deciview improvement for EPA’s 

proposal; (3) Cumulative visibility 

improvement would exceed 0.6 

deciviews (versus EPA’s proposed 0.43 

deciview improvement for Dave 

Johnston Unit 2 at Wind Cave and 

Badlands); (4) Cost-effectiveness is $15 

million/deciview at Wind Cave (versus 

$27,798,246/deciview at Badlands due 

to application of SCR to Laramie River 

Unit 3); (5) Cumulative costeffectiveness is less than $10 million/

deciview (versus $10,140,825/

cumulative deciview due to application 

of SCR to Laramie River Unit 2.) 

We believe that SCR is Reasonable 

Progress for Dave Johnston Units 1 and 

2. Under the EPA proposal, Dave 

Johnston Units 1 and 2 would each 

contribute over 0.9 deciview 

impairment at Wind Cave National Park 

(and 0.7 deciviews at Badlands National 

Park). With the addition of SCR, 

impairment would drop to less than 0.5 

deciviews for each unit. 

Response: We disagree with this 

comment. We have responded in detail 

to the use of a $/deciview metric in 

section V.D.1.b of this final rulemaking 

action. In addition, as stated above, our 

revised modeling analysis shows that 

the visibility improvement associated 

with SCR with LNB and OFA is 0.18 

deciviews and 0.18 deciviews, 

respectively. By contrast, the visibility 

improvement associated with LNB and 

OFA, is 0.12 deciviews and 0.11 

deciviews, respectively. We continue to 

find that the additional visibility 

improvement is not significant enough 

to warrant selection of SCR with LNB 

and OFA for these reasonable progress 

sources, and as discussed earlier in our 

response to comments, we do not find 

the visibility improvement, when 

considered with the other reasonable 

progress factors, from LNBs and OFA 

warrants the implementation of 

reasonable progress controls. In 

addition, as we discuss above, the 

revised incremental costs for SCR that 

we present above are sufficiently high 

for us to conclude that it is reasonable 

to not impose SCR on Dave Johnston 

Units 1 and 2. 

Comment: EPA acknowledged that, 

for a reasonable progress analysis, only 

four factors must be analyzed. Indeed, 

the CAA clearly requires only four 

factors be analyzed. 42 U.S.C. 

7491(g)(1). EPA employed the fourfactor reasonable progress analysis for 

the other two Wyoming reasonable 

progress sources: oil and gas sources 

and the Mountain Cement Company 

plant. EPA has approved other regional 

haze SIPs where the state employed this 

same four-factor analysis, including 

Nevada. For both the oil and gas sources 

and the Mountain Cement Company 

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plant, EPA disagreed with Wyoming’s 

reasonable progress analysis and found 

‘‘cost effective’’ NOX controls could be 

employed, but EPA did not require 

those NOX controls because the costs 

were ‘‘not so low that we are prepared 

to disapprove the State’s conclusion in 

the reasonable progress context.’’ If EPA 

found the NOX controls ‘‘cost effective’’, 

then PacifiCorp is unclear what 

additional cost analysis was performed, 

or what the statutory or regulatory basis 

for EPA’s additional cost analysis may 

be. EPA does not differentiate 

PacifiCorp’s Dave Johnston Units 1 and 

2 from the oil and gas sources or the 

Mountain Cement Company plant. 

Also, EPA has approved other 

reasonable progress SIPs where the state 

is not meeting the URP, but has 

determined that no reasonable progress 

controls are required for the initial 

planning period. (See 77 FR 30248, 

30256–30257; SIP Approval for Idaho). 

Here, EPA admitted that Wyoming 

‘‘provided a four factor analyses that 

adequately evaluated the required 

factors’’ for Dave Johnston Units 1 and 

2, but then arbitrarily concluded ‘‘it is 

also appropriate for this facility to 

consider a fifth factor for evaluating 

potential reasonable progress control 

options—the degree of visibility 

improvement that may reasonably be 

anticipated from the use of reasonable 

progress controls.’’ 

EPA justified its decision by citing to 

EPA guidance on states setting 

reasonable progress goals. However, the 

referenced guidance does not support 

EPA’s position for several reasons: 

• The guidance concedes it is 

‘‘merely guidance and that States or the 

. . . [EPA] may elect to follow or 

deviate from this guidance, as 

appropriate.’’ EPA cannot find 

Wyoming acted ‘‘unreasonably’’ when it 

chose not to apply discretionary 

guidance. 

• The guidance identifies several 

factors that EPA did not include in its 

proposed regional haze FIP, such as the 

‘‘control measures and associated 

emission reductions that are expected to 

result from compliance with existing 

rules.’’ EPA cannot criticize Wyoming 

for not following the guidance when 

EPA itself chose not to apply part of the 

same guidance in the EPA regional haze 

FIP. 

• The guidance suggests that air 

quality models be used to estimate ‘‘the 

improvement in visibility that would 

result from the implementation of the 

control measures you have found to be 

reasonable and compare this to the 

uniform rate of progress.’’ Here, EPA has 

no ‘‘modeling results’’ demonstrating 

the alleged improvement in visibility 

from the suggested NOX controls and 

the impact on the URP. 

• The States, not EPA, are to 

determine the ‘‘reasonableness’’ of RPGs 

and are given flexibility to do so. 

• The guidance clearly indicates that 

a state must support its RPGs ‘‘based on 

the statutory factors,’’ which EPA 

admits Wyoming did. 

• Finally, the guidance explains that 

no additional reasonable progress 

controls may be needed for the first 

planning period. 

Response: EPA disagrees with this 

comment. With respect to the 

reasonable progress determination for 

the Mountain Cement facility, the cost 

effectiveness of potential controls is 

generally higher than the controls we 

proposed for Dave Johnston Units 1 and 

2. As we stated in our proposal, 

although the costs for potential controls 

for the Mountain Cement facility might 

be considered reasonable in the BART 

context, in the reasonable progress 

context those costs were not so low that 

we were prepared to disapprove the 

State’s determination to not impose 

controls. That was not the case for Dave 

Johnston Units 1 and 2, for which 

combustion controls were significantly 

more cost-effective. Similar reasoning 

applies to the cost-effectiveness of 

controls for the oil and gas sources; in 

addition, as we noted in the proposal, 

Wyoming generally applies minor 

source BACT to these sources. 

As a result, EPA determined that we 

should perform visibility modeling to 

assess the visibility benefits of controls 

on Dave Johnston Units 1 and 2. As 

explained elsewhere, we considered it 

appropriate to assess, in addition to the 

four statutory reasonable progress 

factors, the visibility improvement from 

potential controls at these units, 

particularly in light of the purposes of 

the RHR. In this instance, the revised 

visibility modeling has confirmed that 

the State’s decision to not impose 

controls on Dave Johnston Units 1 and 

2 (although not the State’s rationale) 

was not so unreasonable that EPA is 

compelled to disapprove it. 

EPA also disagrees that EPA’s 

proposal was inconsistent with the cited 

notice proposing action on the Idaho 

Regional Haze SIP. In that notice, EPA 

stated, ‘‘EPA agrees with Idaho’s 

conclusion that additional controls of 

non-BART point sources for reasonable 

progress purposes are not reasonable at 

this time, because even though there are 

cost effective controls identified, 

visibility improvement is anticipated to 

be relatively small.’’ (77 FR 30248, 

30256, May 22, 2012) (emphasis added). 

To derive that conclusion, EPA 

examined the modeled visibility 

impacts for the BART eligible sources 

and noted that, in Idaho’s case, the 

sources with a Q/d of less than 26 had 

visibility impacts of less than 0.5 

deciviews. EPA conservatively inferred 

from this that other potentially affected 

sources in Idaho with a Q/d of less than 

20 would likely also have visibility 

impacts of less than 0.5 deciviews. In 

contrast, our original proposal showed 

modeled benefits at each unit of 0.3 

deciviews from combustion controls. As 

a result, we reject the comparison with 

the notice proposing action on the Idaho 

Regional Haze SIP. Nonetheless, based 

on our revised modeling we have 

reconsidered our proposed 

determination to require LNBs and OFA 

on these two units, and now do not find 

the State’s decision to not impose 

controls to be unreasonable. 

Furthermore, we are not disapproving 

the State’s determination of which 

sources should be considered 

potentially affected sources. Wyoming 

reasonably used a Q/d threshold of 10 

for determining the set of potentially 

affected sources, and the State selected 

(among others) Dave Johnston Units 1 

and 2. That Idaho used a different 

threshold does not show that 

Wyoming’s choice was unreasonable. 

However, even if EPA in the first 

instance was selecting potentially 

affected sources, we might also consider 

it reasonable to select Dave Johnston 1 

and 2 based on a Q/d threshold. 

We disagree that we cited our 

reasonable progress guidance as part or 

whole of our basis for proposing to 

disapprove the State’s reasonable 

progress determination for Dave 

Johnston Units 1 and 2. Instead, we 

briefly cited the guidance for the 

unremarkable proposition that the State 

must at a minimum consider the four 

statutory reasonable progress factors but 

could also take into account other 

relevant factors. Our proposed 

disapproval was not based on that 

proposition, but was based on the 

State’s inadequately supported 

determination to not impose controls, 

which relied on impermissible factors. 

Although the commenter argues that it 

is the State, and not EPA, that should 

determine reasonable progress, as 

explained above we are required to 

evaluate the State’s reasonable progress 

determinations. 40 CFR 51.308(d)(1)(iii). 

We disagree with the commenter’s 

other statements regarding the guidance. 

While the State did assess the four 

statutory reasonable progress factors for 

Dave Johnston Units 1 and 2, the 

guidance does not suggest that a state 

may ignore the results of that 

assessment for impermissible reasons 

such as a claimed lack of authority. The 

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239WildEarth Guardians v. McCarthy, Case No. 

1:11–cv–0001–CJA–MEH. 

240 In fact, the State received the proposed notice 

on May 28, 2013, two business days after the 

proposal was signed, and the proposed notice was 

posted on the Region’s Internet site on May 28, 

2013, well in advance of the Federal Register 

publication on June 10, 2013. 

guidance also does not suggest that a 

state may per se choose to impose no 

reasonable progress controls regardless 

of the state’s assessment of the four 

statutory factors. 

Guidance aside, both the Act and the 

RHR explicitly require the state to 

consider the four factors for potentially 

affected sources. CAA section 

169A(g)(1) (‘‘shall be taken into 

consideration’’); 40 CFR 

51.308(d)(1)(i)(A). Assessing the four 

factors but ignoring the results of that 

assessment for invalid reasons such as 

lack of authority to impose controls 

does not amount to considering the 

factors and violates the explicit 

requirements of the Act and the RHR. 

With respect to control measures 

expected to result from compliance with 

existing rules, the commenter did not 

identify any such NOX control measures 

for Dave Johnston Units 1 and 2, nor are 

we aware of any. Finally, we did 

independently run CALPUFF to model 

the visibility improvement from 

potential controls at Dave Johnston 

Units 1 and 2 and it is part of the basis 

for our final decision. 

F. General Comments 

1. Replacement of FIP Elements With 

SIP 

Comment: EPA has proposed to 

disapprove the monitoring, 

recordkeeping, reporting, and RAVI 

portions of Wyoming’s SIP. 78 FR 

34788. Wyoming acknowledges these 

deficiencies in its SIP and commits to 

making the necessary revisions. 

However, Wyoming will revise its SIP in 

a manner that comports with statutory 

and regulatory processes. Unlike EPA, 

Wyoming will not shortcut legal 

processes designed to ensure FLM 

consultation and public participation to 

meet an arbitrary deadline EPA has 

established with special interest groups 

in litigation to which Wyoming was not 

a party. Such arbitrary deadlines defeat 

the cooperative federalism Congress 

intended to guide CAA implementation 

by needlessly expediting the process, 

tying EPA’s hands, and precluding the 

State from an opportunity to revise its 

SIP. In this context, EPA’s promise—to 

‘‘propose approval of a SIP revision as 

expeditiously as practicable if the State 

submits such a revision and the revision 

matches the terms of our proposed FIP,’’ 

id. 34738—rings hollow. 

Response: We appreciated the State’s 

willingness to make the SIP revisions 

necessary to correct the deficiencies 

with the monitoring, recordkeeping, 

reporting, and RAVI requirements. Once 

EPA receives the SIP revisions from the 

State, EPA will work as expeditiously as 

practicable to review such revisions and 

approve the State’s revisions if they 

meet the terms of our FIP. We have 

responded to other comments elsewhere 

in this document. 

2. Public Comment 

Comment: DEQ and Governor Mead 

requested that EPA defer its hearing 

until sixty days after the date EPA first 

released its proposal, with an additional 

thirty days of comment after the 

hearing. See, e.g., Letter from Todd 

Parfitt, Director, DEQ, to Shaun 

McGrath, Region 8 Administrator, EPA 

(June 14, 2013). Although EPA agreed to 

hold two additional public hearings and 

provide an additional thirty days for 

public comment, EPA did not provide 

the time for public participation that 

Wyoming requested, evidently because 

EPA wanted to meet the deadline for 

final action it established with the 

special interest groups. Thus, while EPA 

did not hesitate to extend that deadline 

on multiple occasions when it 

benefitted EPA and the special interest 

groups, EPA refused to provide the 

additional time Wyoming requested for 

the benefit of the State. 

We also received comments from 

other parties that we should extend the 

public comment period so that there is 

more time to review and comment on 

our action. Some commenters 

specifically requested a 60-day 

extension of the comment period. One 

commenter noted that if the driving 

force for the short timeframe in this 

instance is a consent decree to which 

the EPA is a party, that no agreement 

between an agency and any interested 

party, whether as part of litigation or 

not, should or can modify requirements 

of law for a meaningful opportunity for 

public comment. 

Response: EPA took several steps to 

provide the opportunity for meaningful 

public comment. In addition to the 

initial 60-day public comment period, 

we extended the public comment period 

from August 9, 2013, until August 26, 

2013. In doing so, we took into 

consideration how an extension might 

affect our ability to consider comments 

received on the proposed action and 

still comply with the terms of the 

consent decree deadline,239 which at the 

time required our final action signed by 

the Administrator on or before 

November 21, 2013. Additionally, we 

could not extend the comment period 

any further and still have time to 

respond to the immense amount of 

public comments we anticipated 

receiving. As the commenter notes, EPA 

also added two public hearings and we 

received substantial comments at these 

additional hearings. We find that the 

comment period provided for the 

Wyoming Regional Haze SIP and FIP 

exceeds CAA requirements and is 

reasonable and consistent with what the 

Agency has provided on other FIP and 

SIP actions. For example, EPA provided 

a 60-day comment period for both the 

Montana and North Dakota regional 

haze actions (see 77 FR 23988 and 76 FR 

58570, respectively.) In addition, in our 

first proposal on Wyoming regional haze 

(77 FR 33022), we provided a 60-day 

comment period with no objections 

from interested parties. 

Finally, the State and impacted 

sources have had many years to prepare 

and submit an approvable SIP to EPA. 

As detailed in the Docket for this action, 

the State received numerous detailed 

comment letters from EPA on many 

issues and also participated in meetings 

with EPA. Indeed, the fact that the State 

was able to prepare an extensive 33- 

page document and provide extensive 

comments at the various public 

hearings, all within the allotted time 

period, supports EPA’s contention that 

the 77-day time period for this proposed 

rulemaking was reasonable.240

3. Economic Concerns 

Comment: We received numerous 

comments that the FIP will cost 

anywhere from an additional $300 

million to $1 billion more than the 

State’s SIP, but provide no perceptible 

improvement in visibility when 

compared with the SIP. We received 

numerous comments that EPA’s FIP 

would lead to higher electricity costs to 

consumers and job losses at a time when 

the economy and people cannot afford 

an additional burden. 

Response: We disagree with these 

comments. We have addressed the issue 

of perceptible visibility improvement in 

section V.C.5 of this final rulemaking. In 

addition, it is not EPA’s intention to 

endanger the economic viability of or to 

place an undue burden on PacifiCorp or 

Basin Electric’s customers. EPA has 

considered the comments on these 

issues very carefully. Regarding the 

legal basis for our decision, neither the 

CAA nor the RHR requires states or EPA 

to consider the affordability of controls 

or ratepayer impacts as part of a BART 

analysis. Rather, the CAA and RHR 

require consideration of the following 

factors, which as detailed elsewhere in 

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5210 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

our notice, we have fully considered: 

‘‘The costs of compliance, the energy 

and non-air quality environmental 

impacts of compliance, any existing 

pollution control technology in use at 

the source, the remaining useful life of 

the source, and the degree of 

improvement in visibility which may 

reasonably be anticipated to result from 

the use of such technology.’’ 

Comment: One commenter noted that 

visitors to Wyoming’s parks notice 

when the air is dirty, which can have a 

direct impact on tourism, the second 

largest business in the State. According 

to Wyoming’s Office of Tourism, the 

travel and tourism industry in Wyoming 

creates 30,000 jobs and generates $730 

million in employment earnings and 

$2.8 billion in travel expenditures 

annually. Over 3.5 million people visit 

Yellowstone National Park each year. 

The Commenter also indicated that the 

proposed plan will also reduce health 

care costs in the State. Combined, coal 

plants in Wyoming emit over 60,000 

tons of NOX pollution and almost 

65,000 tons of SO2 pollution annually. 

The Clean Air Task Force estimates that 

coal plant pollution in the State results 

in over $850 million in preventable 

health care costs. 

Response: We acknowledge the 

commenter’s points. 

Comment: We received a comment 

that EPA failed to calculate the costs of 

the proposed rule that will be passed on 

to residential and business customers. 

Response: Explained elsewhere in this 

document, we have taken these costs 

into consideration. 

Comment: We received numerous 

comments that EPA’s action could have 

the potential to shift the energy balance 

in favor of gas, rather than coal, and that 

this shift may force utilities to convert 

their power plants from coal to natural 

gas. Commenters expressed particular 

concern over the potential conversion of 

Naughton Unit 3, and possibly 

Naughton Units 1 and 2. Commenters 

expressed concern over the potential 

impacts natural gas conversion could 

have on local economies. 

Response: As stated above, the CAA 

and RHR require consideration of the 

five statutory factors. Based on our 

consideration of these factors, EPA 

determined the appropriate emission 

limit for BART for each unit. Sources 

have the choice of how to meet that 

limit, including conversion to natural 

gas. EPA’s action does not require any 

source to convert to natural gas, as all 

of the requirements in our FIP can be 

met with combustion and postcombustion control technology. 

Comment: One commenter stated that 

coal-fired plants in Wyoming have 

installed over one billion dollars in 

additional air quality controls and that, 

according to EPA standards, Wyoming 

has better visibility than virtually any 

other state in the country. Therefore, it 

seems unreasonable, illogical and, 

frankly, irrational that the EPA would 

demand Wyoming businesses and 

homeowners foot the bill for another 

one billion dollars in emission controls 

that have little probability of improving 

the quality of lives or the livelihoods of 

our citizens and, in fact, has a great 

potential to harm our people and our 

state. 

Response: EPA disagrees with this 

comment. EPA carefully considered the 

five statutory factors and determined 

that there are additional, cost-effective 

controls that will result in significant 

visibility improvement in Wyoming’s 

Class I areas, and that these controls 

represent BART. 

Comment: One commenter was 

concerned that the investments 

mandated under the FIP will have 

significant adverse impacts on the 

quality and reliability of service 

provided to Wyoming ratepayers. The 

SIP is a well vetted plan by the State 

and its stakeholders that, in association 

with other regulatory requirements such 

as the construction authority process, 

assures that Wyoming utilities will be 

able to comply with its requirements 

with the least amount of impact to 

customers. The FIP, on the other hand, 

with its more stringent control 

requirements and accelerated 

compliance deadlines, will assure not 

only that compliance is needlessly 

expensive, but that it is also rushed, that 

scheduled outages cannot be timed to 

minimize the cost of replacement 

power, and that third party vendors will 

have free reign in determining how 

much a particular project costs. To the 

extent that schedules cannot be met, 

non-compliant plants will be forced out 

of service until the work is done. Such 

outages will necessitate the purchase of 

replacement power in the market and 

will result in diminishing system 

reserves, all of which will jeopardize 

system reliability and increase costs for 

ratepayers. 

Response: We appreciate the 

commenter’s concerns, but note that the 

commenter has provided no data to 

support these assertions. 

Comment: The companies working 

with Wyoming have scheduled 

shutdown and installation on a 

schedule that will allow them to 

maintain service to their customers. The 

new timeline demanded in the reproposal would threaten both service 

interruptions and an increased risk of 

having to spot purchase energy which 

would be an additional increase of costs 

to residential, business, manufacturing, 

and agricultural customers. 

Response: We appreciate the 

commenter’s concerns, but note that the 

commenter has provided no data to 

support these assertions. Additionally, 

CAA section 169A(b)(2)(A) requires 

subject-to-BART sources to install BART 

and comply with any applicable 

emission limits ‘‘as expeditiously as 

practicable.’’ The Act defines this term 

to mean ‘‘as expeditiously as practicable 

but in no event later than five years after 

. . . the date of promulgation.’’ CAA 

section 169A(g)(4). Consequently, the 

final rule appropriately provides that 

the BART units must comply with the 

emission limits as expeditiously as 

practicable but in no event later than 

five years after the date of promulgation 

of the final rulemaking. 

4. National Ambient Air Quality 

Standards (NAAQS) 

Comment: The EPA is duty-bound to 

ensure that the proposed SIP does not 

interfere with attainment and 

maintenance of the NAAQS, in 

accordance with section 110(l) of the 

CAA. Thus, the EPA must ensure that 

the proposed SIP and the proposed FIP 

adequately limit air pollution in order to 

safeguard public health. 

In this case, we are concerned that in 

proposing to approve portions of 

Wyoming’s regional haze plan, the EPA 

has not demonstrated that the proposal 

adequately safeguards the 2008 8-hour 

ozone NAAQS (see 40 CFR 50.15), the 

newly promulgated 1-hour nitrogen 

dioxide (‘‘NO2’’) NAAQS (see 40 CFR 

50.11(b)), the newly promulgated 1-hour 

SO2 NAAQS (see 40 CFR 50.17), the 

2006 24-hour PM2.5 NAAQS (see 40 CFR 

50.13), and the 2012 annual PM2.5

NAAQS (see 78 FR 3086 (Jan. 15, 2013)). 

We are particularly concerned that the 

EPA overlooked its 110(l) obligations 

under the CAA given that, although the 

Proposed Rule may lead to emission 

reductions, no analysis or assessment 

has been prepared to demonstrate that 

even after these emission reductions, 

the recently promulgated NAAQS will 

be met. In this case, we are particularly 

concerned that the recently promulgated 

1-hour NO2 and SO2 NAAQS could be 

jeopardized, as well as the recently 

promulgated 2012 PM2.5 annual 

NAAQS. Indeed, many, if not most, of 

the proposed emission rates are based 

on 30-day rolling averages. There is no 

indication that meeting emission rates 

on a 30-day rolling average will ensure 

that 1-hour NAAQS will be sufficiently 

protected. Indeed, a source could 

comply with a 30-day rolling average 

limit, yet still emit enough pollution on 

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Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 5211 

an hourly basis to cause or contribute to 

violations of the NAAQS, thereby 

interfering with attainment or 

maintenance. Further, there has been no 

analysis at all as to whether the recently 

promulgated revisions to the annual 

PM2.5 NAAQS will be protected. 

In this case, the EPA must either 

disapprove the Wyoming SIP over the 

State’s failure to perform a 110(l) 

analysis or prepare its own 110(l) 

analysis to demonstrate that the SIP will 

not interfere with attainment or 

maintenance of the NAAQS. 

Furthermore, the EPA must demonstrate 

that its FIP will not interfere with 

attainment or maintenance of the 

NAAQS. The EPA has not done so, 

rendering its proposed rule 

substantively flawed. 

Response: CAA section 110(l) 

provides that EPA ‘‘shall not approve a 

revision of a plan if the revision would 

interfere with any applicable 

requirement concerning attainment and 

reasonable further progress . . ., or any 

other applicable requirement of’’ the 

CAA. The commenter has not provided 

any evidence that the Wyoming 

Regional Haze SIP will interfere with 

any applicable requirement concerning 

attainment and reasonable progress or 

any other applicable requirement of the 

CAA, or that further analysis under 

110(l) is necessary. To the contrary, the 

commenter acknowledges that the 

Regional Haze SIP revision will lead to 

emission reductions. 

The commenter asserts that it is not 

enough that the SIP will lead to 

emission reductions and that EPA must 

determine that the SIP will ensure the 

NAAQS are met. We disagree. The CAA 

and EPA’s regulations require regional 

haze SIPs to address visibility 

impairment in mandatory Class I areas; 

attainment of the NAAQS is provided 

for through a separate SIP process. It is 

EPA’s consistent interpretation of 

section 110(l) that a SIP does not 

interfere with attainment and 

maintenance of the NAAQS if the SIP at 

least preserves the status quo air quality 

by not relaxing or removing any existing 

emissions limitation or other SIP 

requirements. EPA does not interpret 

section 110(l) to require a full 

attainment or maintenance 

demonstration for each NAAQS for 

every SIP revision. See, e.g., Kentucky 

Resources Council, Inc., v. EPA, 467 

F.3d 986 (6th Cir. 2006); see also, 61 FR 

16050, 16051 (April 11, 1996) (actions 

on which the Kentucky Resources 

Council case were based). 

Thus, in this action, we need not 

determine whether a 30-day limit is 

adequate to protect a shorter-term 

NAAQS because the regional haze SIP is 

not required to ensure attainment of the 

NAAQS. The fact that the regional haze 

SIP specifies 30-day limits will not 

preclude Wyoming from adopting limits 

with a shorter averaging time, if at some 

future date such limits are found to be 

necessary and required by the CAA to 

protect the NAAQS. 

5. Other 

Comment: We received over 250 

comments in a general mass mailer 

campaign in support of our action. We 

received over 220 mass mailer 

comments on behalf of National Parks 

Conservation Association in support of 

our action. We also received numerous 

general comments from individuals and 

organizations in support of our action. 

Response: We acknowledge the 

commenters’ support of our proposed 

action. 

Comment: We received over 850 mass 

mailer comments opposed to our action. 

We also received numerous general 

comments from individuals and 

organizations in opposition to our 

action. 

Response: We note the commenters’ 

opposition to our proposed action. 

Comment: We received numerous 

general comments in opposition to our 

action that stated that the State’s plan 

was good enough, that it would achieve 

appropriate emission reductions, and 

that it represented a balanced approach. 

Response: We note the commenters’ 

opposition to our proposed action. 

Comment: We received numerous 

general comments in opposition to our 

FIP that stated that the visibility in 

Wyoming is not hazy and that Wyoming 

has some of the best air quality in the 

country. 

Response: We note the commenters’ 

general qualitative observations, but 

note that the commenters did not 

provide any quantitative information to 

substantiate their comment. 

Comment: We received numerous 

comments that we should approve 

Wyoming’s SIP because it represents 

collaboration between the State, 

industry, local governments, and the 

public. 

Response: We note the commenters’ 

points, but as stated earlier, EPA can 

only approve a state’s SIP if it meets the 

requirements of the CAA and EPA’s 

implementing regulations. 

Comment: We received numerous 

comments that EPA’s FIP will only 

reduce NOX by 2,900 tpy more than the 

Wyoming’s SIP, which reduces NOX by 

63,000 tpy. Other commenters went on 

to say that EPA’s FIP will basically 

achieve the same emission reductions 

the State’s SIP would by 2022. 

Response: We disagree with this 

comment. EPA’s calculations show that 

our proposed FIP will result in 

approximately 17,000 tpy more NOX

reductions than the State’s SIP, through 

2022 and beyond. 

Comment: We received numerous 

comments that the proposed FIP, along 

with other EPA regulations, are in 

support of EPA’s hidden agenda to kill 

the coal industry and shut down coalfired power plants. 

Response: As stated earlier, EPA’s 

proposed action was based on its careful 

consideration of the five statutory 

factors in the CAA and related statutory 

and regulatory requirements. 

Comment: We received numerous 

comments that the State’s SIP was 

created through coordination with 

PacifiCorp and other Wyoming 

industries and that it is based on sound 

science that complies with the CAA and 

provides a balance between achieving 

compliance with the RHR while 

ensuring reliable, affordable electricity. 

Response: We note the commenters’ 

points, but as stated earlier, EPA can 

only approve a state’s SIP if it meets the 

requirements of the CAA and EPA’s 

implementing regulations. 

Comment: We received a comment 

that it is generally more hazy now than 

it was ten years ago and that the 

commenter was supportive of reducing 

haze. 

Response: We note the commenter’s 

support. 

Comment: We received a comment 

that provided data that showed voters in 

Wyoming were supportive of continued 

implementation of the CAA and 

environmental protections for our 

environment. The commenter went on 

to say that the majority of voters thought 

environmental protection and a good 

economy were compatible and 

encouraged EPA to finalize its proposed 

action. The commenter urged EPA to 

ignore negative media attention its 

action has drawn, stating that the 

negative publicity was being driven by 

economic interests. 

Response: We note the commenter’s 

support of our proposed rule. 

Comment: EPA has applied selective 

comment response to the development 

of its re-proposal and the public 

comment process, which is 

inappropriate. EPA’s process has lacked 

transparency, particularly to the State. 

EPA has not acknowledged the 

Governor’s comments submitted last 

year. The EPA has not acknowledged 

the DEQ’s comments submitted last 

year. DEQ was not consulted in the reproposal process. It would appear that 

EPA only considered select comments 

that support its predetermined agenda. 

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5212 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

Response: Consistent with our 

statutory obligations, we have evaluated 

all written and oral comments on the 

proposal rulemaking (placing all the 

comments received in the docket for 

this action at www.regulations.gov); 

determined whether any revisions to the 

proposed rule are warranted; and 

prepared the final rulemaking and 

supporting information. The final 

rulemaking decisions are accompanied 

by the bases for the decisions, 

explanations of major changes from the 

proposals, and a response to each of the 

significant comments submitted in 

written or oral presentations during the 

comment period, which includes 

responses to such comments submitted 

by the Governor and DEQ. 

Comment: For years, Wyoming has 

pursued developing a collaborative and 

professional relationship with the EPA, 

but with the regional haze SIP process, 

the EPA has not reciprocated the same 

cooperative effort. This lack of effort on 

the part of the EPA does not represent 

the intent of what performance 

partnership agreements are put in place 

to accomplish. 

Wyoming is a leader in collaboration. 

Whether it is hydraulic fracturing, Sage 

Grouse Core Area Development, or 

carbon sequestration, Wyoming has 

demonstrated a willingness, and really 

eagerness, to work with federal 

agencies, local government, and 

industry to create solutions that not 

only minimize detrimental impact, but 

may actually do the opposite: 

Encouraging sustainable economic 

growth in Wyoming. 

EPA’s imposition of the FIP would 

pour a bucket of cold water on the 

solutions resulting from this type of 

collaboration. In its place, EPA risks 

disenfranchising ratepayers when 

industry has little choice but to transfer 

the costs associated with retrofitting the 

EGUs. Moreover, because EPA failed to 

consider the primary cause of regional 

haze in Wyoming and the Interior 

West—smoke from wildfires—it risks 

alienating local government and state 

cooperating agencies who will perceive 

EPA as being out of touch with the 

regulated community. 

Response: We disagree with this 

comment. EPA values its relationship 

with the State of Wyoming and prior to 

our proposed action had numerous 

meetings with State and industry 

representatives to explore ways in 

which the State could have addressed 

our long standing concerns with the 

approvability of the State’s Regional 

Haze SIP. Regrettably, we were unable 

to find a path forward during those 

discussions that could have resulted in 

the submission of a fully approvable 

regional haze SIP. Nevertheless, we 

remain committed to working 

collaboratively with the State on future 

regional haze actions and encourage the 

State to submit a SIP revision that could 

potentially replace all or a portion of 

our FIP. We do note that in a previous 

action we finalized full approval of the 

State’s 309 (SO2) portion of the Regional 

Haze SIP. In this action we will also be 

finalizing approval of many aspects of 

the State’s 309g (NOX and PM) portion 

of the regional haze plan. 

Comment: We received numerous 

comments that the regulation of regional 

haze is focused on improving visibility, 

not public health. 

Response: We agree with the 

commenter that the CAA’s visibility 

program and the RHR are focused on 

improving visibility and not public 

health. 

Comment: The Conservation 

Organizations submitted comments on 

July 23, 2012 urging EPA not to finalize 

its proposal to approve Wyoming’s 

participation in a Western Backstop 

Trading Program in lieu of satisfying 

BART requirements for SO2. Under 40 

CFR 51.309, states within the Grand 

Canyon Visibility Transport region, 

including Wyoming, may adopt a 

BART-alternative for the state’s SO2

emissions provided that, among other 

things, the program is shown to provide 

for greater reasonable progress than 

would be achieved by application of 

BART pursuant to 40 CFR 51.308(e)(2). 

Wyoming‘s alternative program does not 

satisfy this requirement. Accordingly, 

Wyoming must comply with BART 

requirements for all haze-causing 

pollutants, including SO2. 

Response: We finalized approval of 

the State’s 309 SIP that includes the 

requirements for the Western Backstop 

Trading Program on December 12, 2012 

(77 FR 73926). Because this comment 

pertains to that final rulemaking, it is 

not germane to this final rulemaking 

action. 

Comment: Unlike other programs, the 

regional haze program requires regular 

updates and reviews to ensure that 

reasonable progress is being made 

towards the ultimate goal ending in 

2064. In fact, the State will be required 

to submit a progress report to EPA in 

2013 and a new regional haze SIP in 

2018. EPA should approve the Wyoming 

Regional Haze SIP, and reserve most of 

its arguments and concerns expressed in 

its regional haze FIP for consideration in 

Wyoming’s 2018 regional haze SIP 

submittals. In the meantime, EPA can be 

assured that the significant emission 

reductions required under the Wyoming 

Regional Haze SIP, nearly all of which 

already have been installed, will 

continue to contribute to visibility 

improvement. 

Response: Because we have found 

that the State’s Regional Haze SIP did 

not adequately satisfy the RHR 

requirements in full, we have a duty to 

promulgate a FIP during this planning 

period that meets those requirements. 

Comment: EPA pays undue attention 

to the ‘‘health’’ issues in its FIP. For 

reasons it does not explain, EPA’s FIP 

discusses the asserted health impacts of 

fine particulates, when health impacts 

are not part of the BART analysis. The 

regional haze program is not a healthbased program; rather, it is focused on 

aesthetics. 

Response: We disagree with this 

comment. In our proposed notice, we 

stated that ‘‘PM2.5 can also cause serious 

health effects and mortality in humans 

and contributes to environmental effects 

such as acid deposition and 

eutrophication.’’ 78 FR 34741. The 

commenter suggests that this brief 

informational statement somehow 

means that we based our BART 

determinations in part on the health 

impacts of PM2.5. This is not the case, as 

we clearly based our BART 

determinations on the five statutory 

factors, as required by section 169(a) of 

the CAA and the RHR. 

Comment: In light of EPA’s apparent 

coordination with the special interest 

groups and the particular influence 

those groups seemed to be exerting over 

EPA’s regional haze program, Wyoming 

and eleven other states submitted to 

EPA a Freedom of Information Act 

(FOIA) request seeking communications 

between EPA and the special interest 

groups related to EPA action on regional 

haze SIPs. See Letter from P. Clayton 

Eubanks, Deputy Solicitor General, 

Office of Oklahoma Attorney General, to 

FOIA Officer, EPA (Feb. 6, 2013) (FOIA 

Request). EPA denied the states’ public 

records request on the ground that the 

states’ fee waiver request was invalid 

because the states ‘‘have not expressed 

a specific intent to disseminate the 

information to the public.’’ Letter from 

Larry F. Gottesman, National FOIA 

Office, EPA, to Clayton Eubanks, Deputy 

Solicitor General, Office of Oklahoma 

Attorney General (Feb. 22, 2013). But 

see FOIA Request, at 5–9 (Feb. 6, 2013) 

(describing in detail the states’ intent to 

disseminate the information to the 

public). 

The states appealed that plainly 

erroneous decision. See Letter from P. 

Clayton Eubanks, Deputy Solicitor 

General, Office of Oklahoma Attorney 

General, to National FOIA Officer, EPA 

(March 15, 2013) (Exhibit 4). On May 2, 

2013, EPA’s Office of General Counsel 

informed the states that it needed ‘‘a 

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brief extension of time’’—until May 15, 

2013—to respond to the states’ appeal. 

Electronic mail from Lynn Kelly, 

Attorney-Advisor, EPA Office of General 

Counsel, to P. Clayton Eubanks, Deputy 

Solicitor General, Office of Oklahoma 

Attorney General. Two weeks later, EPA 

again informed the states that it needed 

more time to review the appeal, 

promising a decision by May 31, 2013. 

Electronic mail from Lynn Kelly, 

Attorney-Advisor, EPA Office of General 

Counsel, to P. Clayton Eubanks, Deputy 

Solicitor General, Office of Oklahoma 

Attorney General (May 15, 2013). 

On that date, EPA denied the states’ 

FOIA request, claiming the states’ 

request ‘‘fails to adequately describe the 

records sought[.]’’ Letter from Kevin M. 

Miller, Assistant General Counsel, EPA 

Office of General Counsel, to P. Clayton 

Eubanks, Deputy Solicitor General, 

Office of Oklahoma Attorney General, at 

1 (May 31, 20 13). But see FOIA 

Request, at 1–3 (describing in detail the 

records sought). In the face of EPA’s 

blatant attempts to frustrate the states’ 

right to access public records directly 

related to matters of great importance to 

the states and the public, the states sued 

EPA in federal court. Compl., Oklahoma 

v. EPA, No. 5:13-cv-00726–M (W.D. 

Okla. July 16, 2013). 

In related litigation seeking the 

documents that the states requested, as 

well as others, a federal judge has 

questioned EPA’s truthfulness and 

concluded ‘‘that leaders in EPA may 

have purposefully attempted to skirt 

disclosure under the FOIA.’’ Mem. Op., 

at 13, Landmark Legal Found. v. EPA, 

No. 12–1726 (D.D.C. Aug. 14, 2013). 

One cannot help but to similarly 

question EPA’s honesty and wonder 

what EPA is trying to hide. 

Response: EPA disagrees with this 

comment. EPA has not coordinated with 

environmental organizations regarding 

the outcome of this action. As we 

explain elsewhere, nothing in the 

consent decree requires any particular 

substantive outcome concerning 

Wyoming’s Regional Haze SIP. With 

respect to the allegations made relating 

to FOIA litigation, EPA has fully 

responded to those claims in federal 

court. In any case, the issues in the 

FOIA litigation mentioned by the 

commenter, such as whether the FOIA 

requester reasonably described the 

records sought, are unrelated to the 

commenter’s unsupported allegations of 

coordination with environmental 

organizations. 

With respect to the commenter’s 

insinuations of bias, EPA firmly rejects 

them. We have given careful 

consideration to all comments and 

views submitted, regardless of their 

origin. In response to some comments— 

both from industry and from 

environmental organizations—we have 

acknowledged the merits of the 

comments and accordingly adjusted not 

only our technical analyses, but also our 

final determinations. We have also, at 

our discretion, considered comments 

from both industry and from 

environmental organizations that were 

submitted after the close of the 

comment period. It is hard to imagine 

what better evidence there could be that 

EPA is willing and able to rationally 

consider arguments and does not have 

an unalterably closed mind on the 

issues in this action. See Air Transp. 

Ass’n of Am., Inc. v. Nat’l Mediation 

Bd., 663 F.3d 476, 487 (D.C. Cir. 2010) 

(standard for prejudgment of rulemaking 

issues) (citing Ass’n of Nat’l Advertisers, 

Inc. v. FTC, 627 F.2d 1151 (D.C. Cir. 

1979), cert. denied, 447 U.S. 921 

(1980)). 

VI. Non-Relevant Comments From 

EPA’s Original Proposal 

The following is a summary of the 

significant comments, criticisms, and 

new data we received on our initial June 

4, 2012 proposed rulemaking, which we 

are not responding to because they are 

no longer relevant to the action we 

proposed on June 10, 2013, or the 

specific regional haze related action we 

are taking in this final rulemaking. 

A. General Comments 

Comment: EPA is proposing to 

calculate compliance with tons per year 

(tpy) BART emissions limits on a rolling 

12-month basis. Based on EPA’s 

proposal, the owner/operator is to 

calculate and record a new 12-month 

rolling average emission rate from the 

arithmetic average of all valid hourly 

emission rates from the continuous 

emissions monitoring systems for the 

current month and the previous 11 

months, and to report the result in tons. 

The calculation and compliance 

determination shall be performed at the 

end of each calendar month. 

Wyoming established BART 

emissions limits based on a 30-day 

rolling average in accordance with 40 

CFR part 51 Appendix Y. Wyoming also 

established annual emissions limits for 

units with BART limits. For all units 

with BART limits, except Units 1 

through 3 at Basin Electric’s Laramie 

River Station, Wyoming based the 

annual emissions limits on the 30-day 

averaged lb/hr emissions limit and fulltime operation for 8,760 hours per year. 

Wyoming deliberately established 

these limits on a calendar year basis to 

reduce recordkeeping and reporting 

burdens, without being any less 

stringent than what was prescribed 

under Appendix Y. Every year, when 

the Title V emissions inventory is 

submitted for each of these facilities, the 

reported annual emissions can be 

compared to the annual BART limits 

established in the State permits to 

determine compliance. Requiring 

compliance with a 12-month rolling 

average will result in unnecessary 

monitoring, recordkeeping, and 

reporting, as the 12-month rolling 

emissions limit would be based on fulltime operation of the unit and the more 

stringent 30-day averaged lb/hr value. 

Comment: We received a comment 

from a coalition of physicians that 

expressed concerns over the health 

impacts from air pollution, particularly 

particulate matter and ozone. 

Comment: We received a comment 

from a member of the public that points 

out the amount of coal production in 

Wyoming and its contribution to carbon 

dioxide and climate change. 

B. Basin Electric Laramie River 

Comment: Wyoming has 

overestimated the ability of SNCR to 

reduce emissions. EPA is basing its 

BART determination on the assumption 

that LNB+OFA+SNCR can achieve 0.12 

lb/MMBtu on a 30-day rolling average. 

This means that addition of SNCR must 

reduce NOX emissions from the 

LNB+OFA strategy by another 48%. 

Given the sensitivity of SNCR to boiler 

operation, size, and configuration, we 

are concerned that SNCR may not be 

able to achieve the proposed level of 

performance on a consistent basis. For 

example, our query of CAMD data for 

2011 found no EGUs with SNCR (out of 

3,621 coal-fired EGUs) that met 0.12 lb/ 

MMBtu each month. 

Comment: EPA should ensure that 

SNCR plus LNBs/OFA are capable of 

meeting the proposed NOX limit of 0.12 

lb/MMBtu, which would reflect a 43% 

NOX removal efficiency for SNCR. This 

level of removal is approximately twice 

that considered for other Wyoming 

facilities, as well as facilities in other 

state BART analyses. Further, in 

commenting on EPA’s BART proposal 

for Montana’s Colstrip Units 1 and 2, 

the NPS researched 3,621 coal-fired 

EGUs with SNCR and found only two 

units that could meet 0.15 lb/MMBtu 

consistently on a monthly basis. 

Accordingly, we question whether 

SNCR plus combustion controls can 

achieve a 0.12 lb/MMBtu NOX limit at 

Laramie River Station Units 1–3. Should 

EPA find that this level of control with 

SNCR is achievable, and fail to impose 

adequate BART limits reflective of SCR 

capabilities; we request the EPA ensure 

the proposed NOX limits are made 

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enforceable as a backstop and that if 

greater removal efficiencies are 

achievable, rates be revised downwards 

within a 12-month period from the date 

the technology becomes operable. We 

also request that level of ammonia slip 

not exceed 5ppm, and such limit 

likewise be made enforceable. 

Comment: EPA’s BART analysis for 

Laramie River Station Units 1–3 

improperly relied on cost estimates from 

Basin Electric that overestimated capital 

costs and significantly underestimated 

operation and maintenance costs for 

SNCR. Particularly, Basin Electric 

underestimated the cost of reagent. We 

corrected these errors in our revised cost 

calculation using the Sargent & Lundy 

SNCR cost module from the IPM, and 

evaluated the cost of SNCR to reduce 

NOX from the 0.21 lb/MMBtu Wyoming 

BART limit for LNBs/OFA down to 

EPA’s proposed FIP limit of 0.12 lb/

MMBtu which reflects a NOX reduction 

across the SNCR of 43%. We also 

evaluated the cost effectiveness for an 

SNCR system designed to achieve 20% 

NOX removal, which would equate to a 

NOX rate of 0.17 lb/MMBtu. Our revised 

estimates show the cost effectiveness of 

SNCR plus combustion controls is 

between $2,435/ton and $2,623/ton to 

meet a 0.12 lb/MMBtu NOX rate (or 

between $2,062/ton and $2,368/ton to 

meet a 0.17 lb/MMBtu NOX rate). These 

corrected cost effectiveness values for 

meeting a 0.12 lb/MMBtu NOX rate with 

SNCR are higher than the cost 

effectiveness values, between $2,056/

ton and $2,109/ton, assumed by EPA. 

Comment: EPA relied on SCR cost 

estimates provided by Basin Electric 

that failed to include LNBs/OFA and 

therefore assumed unreasonably high 

construction and operation costs for the 

SCR. 

Comment: A comparison of SCR to 

EPA’s preferred LNB+OFA+SNCR 

option shows incremental costs less 

than $4,000/ton which are well below 

values EPA typically accepts. For 

example, in its proposal to disapprove 

part of the North Dakota plan, EPA cited 

the ‘‘. . . relatively low incremental 

cost effectiveness between the two 

control options ($4,855 per ton) . . .’’ 

For Laramie River Station, the National 

Park Service (NPS) estimates of 

incremental costs of SCR are only 

slightly greater than SCR’s average costs, 

which are reasonable when compared to 

costs accepted by other states and EPA. 

Comment: Although Basin Electric 

opposes EPA’s SIP disapproval and FIP, 

it supports the agency’s decision not to 

require SCR at Laramie River Station in 

its proposed FIP. EPA eliminated the 

option of LNBs/OFA plus SCR from 

consideration as BART for the Laramie 

River Station because ‘‘the cost 

effectiveness value is significantly 

higher than LNBs with OFA and there 

is a comparatively small incremental 

visibility improvement over LNBs with 

OFA.’’ Basin Electric agrees with and 

supports the EPA on this issue. 

Comment: EPA’s analysis for Basin 

Electric’s Laramie River Station 

acknowledged that additional emissions 

reductions from LNB and OFA were 

proposed in the SIP, but did not assess 

the benefit of these lower emissions 

rates. The short term mass emissions 

rate was reduced to 1,220 lb/hr for 

Laramie River Station on Units 1 and 2, 

and reduced to 1,254 lb/hr for Laramie 

River Station Unit 3. EPA explained that 

since the State did not provide 

additional cost information for the 

lower limits, revised modeling based on 

0.21 lb/MMBtu was not performed, nor 

did EPA perform a revised cost analysis. 

The reduced mass emissions are 

based on a performance level of 0.19 lb/ 

MMBtu, which will be achieved by the 

installation of LNB with OFA at no 

additional cost. Accounting for 

additional reduction in emissions, 

without changing the control costs, 

yields a significantly higher incremental 

cost, approximately $3,300, between 

LNB with OFA and SNCR. If EPA had 

accounted for additional reduction from 

LNB and OFA and resulting smaller 

incremental visibility improvement (less 

than 0.23 delta deciviews), the State 

anticipates that SNCR would not have 

been BART. This conclusion is based on 

EPA’s determination in the proposed 

FIP for Montana that ‘‘. . . the cost of 

SOFA+SCR ($3,195/ton) [lower than the 

incremental cost of SNCR] is not 

justified by the visibility improvement 

of 0.404 deciviews at Theodore 

Roosevelt National Park and 0.378 

deciviews at UL Bend.’’ 77 FR 24027. 

When evaluating Wyoming’s 309(g) 

Regional Haze SIP, EPA should have 

considered the additional NOX

emissions reductions achieved in the 

SIP before making a final determination 

on the approvability of the SIP. 

Comment: EPA’s comparison of 

annual emissions from the installation 

of SNCR to the annual emissions cap 

established in a settlement is not 

consistent. Operation of SNCR on 

Laramie River Station Units 1 through 3 

is anticipated to result in annual 

emissions of 8,468 tons per year. The 

State established an annual facility 

emissions cap of 12,773 tons per year in 

a permit. The 8,468 tons per year value 

is based on an average of 2001–2003 

actual heat input for each boiler, while 

the 12,773 tons of NOX is a facility cap 

on potential emissions. Typically, actual 

emissions are notably less than potential 

emissions in order to maintain a margin 

of compliance. It is the State’s 

expectation that the emissions 

difference between EPA’s SNCR 

determination and the State’s reduced 

facility emissions cap will be less than 

the calculated 4,305 tons per year. A 

more direct comparison would be to 

base the difference on the potential to 

emit for each of the three Laramie River 

Station units (0.12 lb/MMBtu times the 

maximum heat input rate times 8,760 

hours of operation) which yields an 

annual facility NOX emission rate of 

10,218 tons per year, and a difference 

from the State’s emission cap of 2,555 

tons. 

Comment: EPA states ‘‘We find it was 

unreasonable for the State not to 

determine that LNBs with OFA plus 

SNCR was NOX BART for LRS Units 1– 

3.’’ This statement provides no insight 

into the agency’s reasons for 

disapproving the State’s NOX BART for 

Laramie River Station. 

C. Jim Bridger Units 1–4 

Comment: In its regional haze FIP, 

EPA identifies the relatively high 

incremental cost effectiveness of SCR 

($5,721 per ton) for the Bridger units. 

Nevertheless, EPA does not account for 

this number in its own BART decision 

making. EPA also fails to accord any 

deference to Wyoming’s consideration 

of these same costs. Such action is 

arbitrary and contrary to EPA’s actions 

in other states. Here, EPA erred by not 

considering any incremental costs for 

Bridger, and by not honoring 

Wyoming’s consideration of costs for 

the Bridger units. 

Comment: In response to EPA’s 

request for comment on alternative 

approaches for the Jim Bridger BART 

determination, EPA received general 

comments in favor of our third proposal 

in the alternative. Although these 

commenters supported our third 

proposal in the alternative, the 

commenters did not provide 

quantitative information to support their 

position. 

Comment: EPA is seeking comment 

on an alternative that would allow 

PacifiCorp to install SCR at Jim Bridger 

Units 3 and 4 within 5 years from the 

date of EPA’s final action. EPA’s 

reasoning is that this alternative would 

allow PacifiCorp the flexibility to 

determine the implementation schedule 

for BART controls on all four Jim 

Bridger units. Because EPA’s initial 

proposal to require BART installation by 

2016 best complies with the statutory 

requirement that BART be installed and 

operated as expeditiously as practicable, 

42 U.S.C. 7491(b)(2)(A), we support 

EPA’s proposal over the alternative. 

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Comment: EPA likely underestimated 

the visibility benefits attributable to SCR 

to control NOX emissions in other ways. 

First, EPA failed to follow its BART 

guidelines in estimating pre- and postcontrol emissions. EPA’s baseline for 

modeling included the PM and SO2

limits that will be established by the 

regional haze plan, rather than using a 

pre-SIP baseline (typically from the time 

period of 2001–2004) as required by 

EPA’s BART guidelines. This approach 

resulted in an understatement of 

visibility improvement from NOX BART 

controls. Further, EPA deviated from its 

BART guidelines by modeling baseline 

emissions that were based on allowable 

emission rates rather than actual 

maximum 24-hour rates. As a result, 

EPA’s baseline is based on long-term 

average emissions that mask actual 

maximum visibility impairment. 

Further, EPA greatly overestimates the 

ammonia slip (SO4 emissions) 

associated with SCR. For example, 

actual increases in SO4 emissions due to 

operation of SCR at each of the Jim 

Bridger units are 7.89 lb/hr per unit, far 

lower than EPA’s assumed increase in 

SO4 emissions of 54.0 lb/hr per unit. 

This error, too, likely caused EPA to 

understate the visibility benefits of SCR. 

The Conservation Organizations 

conducted modeling analyses to 

examine how widespread the impacts 

from each BART-subject source were 

and to analyze the widespread visibility 

improvements that would result if all 

units were required to install SCR along 

with combustion controls at 0.05 lb/

MMBtu limits routinely achieved to 

meet NOX BART. The Conservation 

Organizations did not attempt to 

address all of EPA‘s errors in their 

supplemental modeling of visibility 

impacts. Had the Conservation 

Organizations done so (i.e., changed 

baseline to reflect pre-SIP emissions of 

SO2, PM as well as NOX, and reduced 

the projected increase in sulfates to 

more reasonable levels), we assume that 

even greater visibility benefits would 

have been demonstrated with SCR 

required as BART at all BART-subject 

units. 

D. Dave Johnston Units 3 and 4 

Comment: EPA relied on Wyoming’s 

cost-effectiveness analysis of SCR plus 

LNBs/OFA at Dave Johnston Unit 3, 

which significantly overestimates the 

cost of this technology. While EPA 

presented a cost effectiveness of $3,243/ 

ton, our revised cost-effectiveness 

calculation using the Sargent & Lundy 

SCR cost module shows that SCR plus 

LNBs/OFA at Dave Johnston Unit 3 to 

meet a NOX limit of 0.05 lb/MMBtu is 

much lower: $1,632/ton. 

Comment: EPA relied on Wyoming’s 

dramatic underestimation of the cost for 

SNCR at Dave Johnson Unit 3. 

Wyoming’s BART analysis used costs 

provided by PacifiCorp, which greatly 

underestimated reagent costs for SNCR. 

Further, although PacifiCorp’s SNCR 

cost analysis was based on achieving a 

NOX rate of 0.22 lb/MMBtu, Wyoming 

stated that SNCR was assumed to meet 

a NOX rate of 0.19 lb/MMBtu. This 

skewed the cost-effectiveness results by 

making SNCR appear less costly and 

more effective. Our revised analysis 

using the Sargent & Lundy SNCR cost 

module from the IPM to achieve a 0.22 

lb/MMBtu NOX rate (20% removal 

across the SNCR) demonstrated that 

SNCR has a higher cost-effectiveness 

value than is presented in the proposed 

rule. While EPA presented and relied on 

a cost effectiveness for SNCR of $721/ 

ton, correcting the flaws in that analysis 

demonstrates a cost effectiveness for 

SNCR of $1,443/ton. Based on these 

corrected cost calculations, the cost of 

SCR plus LNBs/OFA is $1,632/ton, not 

appreciably higher than the cost of 

SNCR at $1,443/ton. 

Comment: EPA makes the same errors 

in its BART analysis for Dave Johnston 

Unit 4 as it did for Unit 3. EPA has 

proposed to approve Wyoming’s NOX

BART determination for Dave Johnston 

Unit 4, requiring LNBs with advanced 

OFA to achieve a NOX emission limit of 

0.15 lb/MMBtu. Although the cost 

effectiveness of SCR plus LNBs with 

OFA at Dave Johnston Unit 4 presented 

by Wyoming and relied upon by EPA 

was abundantly reasonable at $2,210 per 

ton of NOX removed, EPA apparently 

agreed with Wyoming that the 

incremental cost effectiveness of these 

controls compared to LNBs/OFA was 

too high to justify SCR as BART. 

Wyoming calculated the cost 

effectiveness of SCR plus LNBs/OFA to 

be $2,210/ton with a projected 

maximum visibility improvement of 

0.97 deciviews. In comparison, 

Wyoming and EPA found that these 

same controls constitute BART at 

Naughton Unit 3, even though the cost 

was greater, $2,830/ton, and the 

projected maximum visibility 

improvement was roughly the same, 1.0 

deciviews. Wyoming and EPA also 

found that SCR plus LNBs and SOFA 

met BART for Jim Bridger Units 3 and 

4 at a cost effectiveness of $2,258/ton 

and a projected visibility improvement 

of 0.80 and 0.82 deciviews, respectively. 

Further, EPA found that SCR plus LNBs 

and SOFA met BART for Jim Bridger 

Units 1 and 2 at a cost effectiveness of 

$2,258/ton and a visibility improvement 

of 0.76 deciviews and 0.82 deciviews, 

respectively. EPA’s contrary conclusion 

for Dave Johnston Unit 4 is arbitrary and 

inconsistent with EPA’s other decisions. 

Comment: Although EPA’s data in the 

proposed rule demonstrated that SCR 

plus LNBs/OFA is cost effective at 

$2,210/ton of NOX removed, EPA 

overestimated the cost of SCR for Dave 

Johnston Unit 4 in the same way it did 

for Dave Johnston Unit 3. We 

recalculated the cost effectiveness of 

SCR plus combustion controls at Dave 

Johnston Unit 4 using the Sargent & 

Lundy SCR IPM Cost Module to meet a 

NOX rate of 0.05 lb/MMBtu. The revised 

cost analysis shows a cost effectiveness 

of $1,837/ton for these controls. 

Comment: EPA appears to have 

placed undue weight on incremental 

costs. In its proposal to disapprove part 

of the North Dakota plan, EPA cited the 

‘‘. . . relatively low incremental cost 

effectiveness between the two control 

options ($4,855 per ton) . . .’’ For 

Johnston units 3 and 4, the NPS 

estimates of incremental costs of SCR 

are two—three times greater than 

LNB+OFA+SCR’s average costs, which 

are reasonable when compared to costs 

accepted by other states and EPA. 

E. Naughton Units 1–3 

Comment: We received comments 

that the cost analysis of SCR at 

Naughton is over inflated. One 

commenter estimated that, using a 

capital cost of $266/kW, 

LNB+OFA+SCR for Unit 1 would 

remove 3,249 tpy and cost $2,098/ton. 

The commenter went on to say that they 

estimated the cost for the addition of 

SCR to Unit 2 and Unit 3 would be 

$2,037 and $2,844/ton. A commenter 

estimated the costs for the addition of 

SCR to Unit 3 would be $1,788/ton. 

Another commenter estimated the cost 

of SCR of $1,550/ton for Naughton Unit 

1 and $1,501/ton for Naughton Unit 2. 

Comment: Even taken at face value, 

the $2,750 and $2,848 costs per ton 

estimated by Wyoming for LNB+OFA+ 

SCR on Naughton Units 1 and 2, 

respectively, are similar to or lower than 

the cost/ton values accepted as 

reasonable in other BART analyses, 

including Wyoming’s and EPA’s 

conclusion that addition of OFA+SCR at 

$2,830/ton is reasonable for Naughton 

Unit 3. 

Comment: Despite our concerns with 

the visibility modeling conducted by 

EPA, taken at face value, the annual 

costs and visibility improvements 

(presented by EPA) associated with the 

addition of SCR result in costeffectiveness of $9.6 million/deciview 

for Naughton Unit 1, $11.5 million/

deciview for Unit 2, and $15.7 million/ 

deciview for Unit 3 (which EPA deemed 

reasonable) at the nearest Class I area. 

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All three of these estimates are below or 

within the range of average cost/

deciview accepted as ‘‘reasonable’’. 

Comment: EPA relied solely on an 

incremental cost-benefit rationale to 

reject SCR as BART for Naughton Units 

1 and 2. This conclusion is improper 

where SCR plus combustion controls is 

cost effective, even using EPA’s inflated 

numbers, and its visibility benefit 

would be significant. Indeed, the costs 

and visibility benefits of SCR at Units 1 

and 2 are nearly identical to the costs 

and visibility benefits of SCR at Unit 3, 

at which EPA found SCR to be BART. 

Specifically, SCR at Naughton Units 1 

and 2 has a cost effectiveness of $2,750/ 

$2,848 per ton of NOX removed and 

results in maximum visibility 

improvements of 1.07/1.10 deciviews. 

Given these very similar numbers, 

EPA’s determination that SCR is BART 

at Unit 3 but SCR is not BART at Units 

1 and 2 is arbitrary. 

Comment: EPA has placed undue 

emphasis on incremental cost 

effectiveness is even more improper 

considering its inaccuracy. EPA stated 

incorrectly the incremental cost 

effectiveness of LNBs/OFA plus SCR 

compared to LNBs/OFA as $8,000/ton. 

However, this calculation actually refers 

to the incremental cost effectiveness of 

the SCR option compared to the SNCR 

BART option. The incremental cost 

effectiveness between the SCR option 

and the LNB/OFA option based on 

Wyoming’s cost and emission estimates 

provided in its BART Application 

Analyses are $6,665/ton for Unit 1 and 

$6,518/ton for Unit 2. 

F. Wyodak 

Comment: We received comments 

that the costs for SCR were overinflated. 

One commenter estimated that 

LNB+OFA+SCR would remove 3,773 

tpy and cost $3,475/ton. Another 

commenter estimated that based on the 

Sargent & Lundy SCR cost module, the 

revised cost estimate for these controls 

to meet a NOX limit of 0.05 lb/MMBtu 

is $2,602/ton of NOX removed. 

Comment: As it did for Dave Johnston 

Unit 3, EPA also relied on Wyoming’s 

gross underestimate of the costs of 

SNCR. Rather than the $958/ton of NOX

removed assumed by EPA, the more 

accurate cost effectiveness of SNCR 

based on the Sargent & Lundy SNCR 

IPM cost module is $3,139/ton. Thus, 

SCR is more cost effective than SNCR to 

control NOX at Wyodak. 

Comment: EPA has placed undue 

weight on incremental costs and 

incremental benefits. Our analysis of the 

LNB+OFA+SCR option shows an 

incremental cost of $3,726/ton for 

adding SCR to LNB+OFA. Our estimates 

of incremental costs of SCR are only 

slightly greater than LNB+OFA+SCR’s 

average costs, which are reasonable 

when compared to costs accepted by 

other states and EPA. 

G. Dave Johnston Units 1 and 2 

Comment: The Conservation 

Organizations agree with EPA that 

reasonable progress controls for NOX

emissions are needed for Dave Johnston 

Units 1 and 2. EPA correctly found that 

it was unreasonable for Wyoming to 

reject cost effective NOX controls that 

would improve visibility. EPA proposes 

to require only LNBs/OFA to achieve a 

NOX emission limit of 0.20 lb/MMBtu 

(30-day rolling average). While we 

commend EPA for proposing a FIP to 

reduce NOX emissions from Dave 

Johnston Units 1 and 2, we urge EPA to 

require SCR plus LNBs/OFA to meet a 

NOX emission limit of 0.05 lb/MMBtu to 

achieve reasonable progress. Although 

EPA concluded that the cost of SCR is 

not justified by the projected visibility 

improvement, EPA’s analysis 

unreasonably assumed that SCR would 

only achieve a NOX emission rate of 

0.12 lb/MMBtu, even though an 

emission rate of 0.05 lb/MMBtu is 

readily achievable. Correcting for this 

error, it appears that SCR at Dave 

Johnston Units 1 and 2 is very cost 

effective at $2,001 and $1,987/ton of 

NOX removed, respectively. 

Accordingly, EPA should reconsider 

requiring SCR at Dave Johnston Units 1 

and 2 to meet reasonable progress 

requirements. 

Comment: EPA deviated from the 

BART Guidelines in the way it 

estimated the emission rates it used in 

its modeling analyses. For Dave 

Johnston Unit 1 and Unit 2, EPA 

assumed that NOX emissions would 

drop from 1,012.5 lb/hr (base case) to 

354.375 lb/hr with the addition of 

LNB+OFA and to 202.5 lb/hr with 

addition of SCR. However, our review of 

2001–2003 daily CAMD data found that 

daily NOX emissions from Johnston Unit 

1 and Unit 2 during 2001–2003 never 

exceeded 680 lb/hr. EPA modeling 

analysis cannot be relied upon to 

estimate ‘‘a comparatively small 

incremental visibility improvement’’ 

because the emissions modeled are 

incorrect. 

Comment: The EPA conclusion that 

the addition of SCR is not justified due 

to the ‘‘small incremental visibility 

improvement’’ is based upon a flawed 

visibility analysis that over-values the 

addition of LNB+OFA and under-values 

addition of SCR. Furthermore, the 

degree of visibility improvement is not 

one of the four statutory factors to be 

considered under the reasonable 

progress provisions of the RHR. 

Incremental visibility improvement is 

not mentioned anywhere in the 

reasonable progress provisions or BART 

Guidelines and EPA cannot create a new 

criterion for the sole purpose of 

eliminating a control option that is 

reasonably cost-effective and would 

yield a significant visibility 

improvement. 

H. Modeling 

Comment: EPA conducted visibility 

impact modeling from the Wyoming 

sources for its BART and reasonable 

progress analyses. Unfortunately, EPA 

failed to present and/or fully explain the 

results of its modeling to the public, 

thus preventing a complete analysis of 

the benefits of installation of SCR on the 

Wyoming sources. Accordingly, we 

request that EPA provide clarification 

on the following issues: (1) Please 

clarify whether the spreadsheet 

provided in response to our FOIA 

request represents EPA’s complete and 

final modeling results. If not, we request 

that EPA post all final visibility 

modeling results to the docket for this 

rulemaking, including any postprocessing of modeling results, and 

allow the public to submit comment on 

the modeling results; (2) Please describe 

and clarify any discrepancies between 

EPA’s proposed rule and its final 

modeling results; (3) Please explain how 

EPA calculated the visibility results 

presented in its proposed rule and 

provide all data upon which these 

calculations were made. In addition, we 

request that EPA re-run its visibility 

impact modeling for years 2001–2003 

and incorporate all proposed changes to 

its modeling provided in this comment 

letter, in the TSD, and in the Expert 

Report of Howard Gebhart, including, 

but not limited to utilization of the 

correct version of the model, correct 

emission rates, and compressive 

inclusion of impacted Class I areas. We 

also request that EPA post its new 

corrected modeling results to the docket 

for this rulemaking and provide the 

public with an adequate opportunity to 

respond and comment on the new 

visibility impact modeling. 

Comment: Wyoming DEQ evaluated 

visibility improvements at the three 

nearest Class I areas—Bridger, 

Fitzpatrick, and Mount Zirkel 

Wilderness Areas—and reported the 

‘‘cumulative 3-year averaged visibility 

improvement from Post-Control 

Scenario A across the three Class I areas 

. . .’’ We requested to DEQ that the 

other eight Class I areas within 300 km 

of Bridger (Grand Teton National Park, 

Yellowstone National Park, Rocky 

Mountain National Park, Washakie 

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Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 5217 

241 Dave Johnston Unit 3, Laramie River units 1, 

2, and 3, and the unit at Wyodak. 

Wilderness Area, Teton Wilderness 

Area, Flat Tops Wilderness Area, Rawah 

Wilderness Area, and Eagles Nest 

Wilderness Area) be included in the 

modeling analysis. However, instead of 

expanding the modeling analysis, EPA 

R8 reported results for only the Mount 

Zirkel Wilderness Area. 

Comment: EPA R8 has incorrectly 

estimated visibility improvement from 

all NOX control options: WY DEQ 

evaluated visibility improvements at the 

four nearest Class I areas and reported 

the ‘‘The cumulative 3-year averaged 

98th percentile visibility improvement 

from Post-Control Scenario A summed 

across all four Class I areas achieved 

with Post-Control Scenario B was 0.754 

delta deciviews from Unit 3 and 0.405 

delta from Unit 4.’’ EPA R8 reported 

results for only one Class I area. 

PacifiCorp apparently considered cost a 

useful metric when it made the 

following statements for its Unit #3 

BART proposal: ‘‘the incremental cost 

effectiveness for Scenario 1 compared to 

the Baseline is reasonable at $0.4 

million per day and $14.4 million per 

deciview to improve visibility at 

Badlands NP’’ and for its Unit #4 BART 

proposal, ‘‘the incremental cost 

effectiveness for Scenario 1 compared to 

the Baseline is reasonable at about 

$800,000 per day and $31.7 million per 

deciview.’’ PacifiCorp’s conclusions are 

consistent with those reached across the 

country that the average cost per 

deciview proposed by either a state or 

a BART source is $14–$18 million, with 

a maximum of almost $50 million per 

deciview proposed by Colorado at the 

Martin Drake power plant. Combining 

the modeling results provided by EPA 

R8 (which we believe have 

underestimated SCR benefits) and 

Wyoming DEQ’s cost analyses (which 

we believe have overestimated SCR 

costs), addition of SCR at Dave Johnston 

Unit 3 would improve visibility by 1.16 

deciview at a cost of $14 million per 

deciview at the most-impacted Class I 

area. Likewise, addition of SCR at Dave 

Johnston Unit 4 would improve 

visibility by 0.97 deciview at a cost of 

$17 million per deciview. Not only is 

addition of SCR cost-effective (even by 

PacifiCorp’s criteria), it would be even 

more cost-effective if the issues we have 

noted above are addressed. By 

overestimating costs of SCR and 

underestimating control efficiency and 

visibility benefits, EPA R8 concluded 

that combustion controls plus SNCR is 

BART for Unit 3 and combustion 

controls are BART for Unit 4, rather 

than SCR. 

Comment: EPA states that a change of 

1.0 deciview is perceptible and causes 

visibility impairment and a change of 

0.5 deciviews, although not perceptible, 

is considered to contribute to visibility 

impairment. 40 CFR part 51, App. Y, 

section III.A.1, 70 FR 39120. Sources 

that do not have an impact of 0.5 

deciviews or more may be exempted 

from BART altogether. 40 CFR part 51, 

App. Y, section III.A.1. In Wyoming, 

EPA approved the State’s selection of a 

0.5 deciview threshold for exempting 

sources from BART, based on the 

‘‘relatively limited impact on visibility’’ 

from sources under the threshold. 

In Colorado, the state established 

criteria that SNCR would be required as 

BART only if the cost effectiveness for 

SNCR was less than $5,000/ton and the 

visibility improvement was greater than 

0.2 deciviews. Although EPA stated it 

did ‘‘not necessarily agree’’ that these 

criteria would always be appropriate for 

determining BART, it proposed to 

approve all BART determinations the 

state made using these criteria. 

The modeled visibility improvement 

using the final BART permit levels that 

would be achieved with SNCR at 

Laramie River is one-tenth of what EPA 

contends is humanly perceptible, onefifth of the level used to exempt 

Wyoming sources from BART due to 

relatively limited visibility impact, and 

one-half the SNCR threshold used by 

Colorado to establish limits that EPA 

proposed to approve. This de minimis 

improvement rebuts EPA’s disapproval 

of the State’s NOX BART for Laramie 

River, and supports the State’s final 

BART determination. Even if EPA were 

entitled to disapprove a state’s BART 

determination based on a standard of 

‘‘unreasonableness,’’ it cannot be 

unreasonable for the state to fail to 

require additional SNCR controls that 

would offer tiny and imperceptible 

visibility improvements at enormous 

cost. However one characterizes the 

facts, millions of dollars would be spent 

every year to install and operate SNCR. 

Moreover, the modeled visibility 

improvements for the Jim Bridger units 

resulting from the requirement to install 

SCR (as BART under the EPA regional 

haze FIP and as part of the LTS under 

the Wyoming Regional Haze SIP) are too 

small to justify the overall expense of 

requiring these controls. Spending 

hundreds of millions of dollars for 

imperceptible visibility changes does 

not meet the intent, or purpose, of the 

regional haze program. 

Comment: EPA has improperly failed 

to account for the very few number of 

days of visibility impacts or the seasonal 

timing of when those few impacts occur. 

EPA is proposing to accelerate the 

timeline for installing the Jim Bridger 

Unit 1 SCR from 2022 to 2017 and the 

Jim Bridger Unit 2 SCR from 2021 to 

2017. Even when relying on the 

CALPUFF models that significantly 

overestimate the visibility impacts, 

EPA’s proposal will only result in 

imperceptible visibility improvements 

for only eleven days a year until the 

SCRs would have been installed as 

required by the State’s plan. 

In a similar manner, the days of 

impacts need to be considered when 

evaluating the additional controls that 

EPA proposes to install on Wyodak and 

Dave Johnston Unit 3. EPA’s modeling 

of Wyodak indicates that installing and 

incurring the additional costs for the 

SNCR will not only result in an 

imperceptible 0.15 deciview of visibility 

improvement, but the days per year the 

unit is modeled to impact the park by 

greater than 0.5 deciviews will be 

reduced from sixteen to twelve days; a 

benefit of only four days per year. 

EPA’s modeling of Dave Johnston 

Unit 3 indicates that installing and 

incurring the additional costs for SNCR 

will result not only in an imperceptible 

0.17 deciview improvement, but the 

days per year the unit is modeled to 

impact the park by greater than 0.5 

deciviews will only be reduced from 

nine to six days; a benefit of only three 

days per year. None of these 

imperceptible modeled visibility 

improvements occurring during only a 

few days a year justify the tremendous 

cost of controls required under EPA’s 

regional haze FIP. 

VII. 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). As discussed in 

section C below, the final FIP applies to 

only three facilities and five BART 

units.241 It is therefore not a rule of 

general applicability. 

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). Because the 

final FIP applies to just three facilities, 

the Paperwork Reduction Act does not 

apply. See 5 CFR 1320(c). 

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242Andover Technology Partners, ‘‘Cost of NOX

Controls on Wyoming EGUs’’, October 28, 2013; 

Wyoming EGU BART and Reasonable Progress 

Costs—10/2013. 

243Andover Technology Partners, ‘‘Cost of NOX

Controls on Wyoming EGUs’’, October 28, 2013; 

Wyoming EGU BART and Reasonable Progress 

Costs—10/2013. 

244Andover Technology Partners, ‘‘Cost of NOX

Controls on Wyoming EGUs’’, October 28, 2013; 

Wyoming EGU BART and Reasonable Progress 

Costs—10/2013. 

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 

have a significant economic impact on 

a substantial number of small entities. 

The Regional Haze FIP that EPA is 

finalizing for purposes of the regional 

haze program consists of imposing 

federal controls to meet the BART 

requirement for NOX emissions on five 

specific BART units at three facilities in 

Wyoming. The net result of this FIP 

action is that EPA is finalizing direct 

emission controls on selected units at 

only three sources. The sources in 

question are each large electric 

generating plants that are not owned by 

small entities, and therefore are not 

small entities. The final partial approval 

of the SIP merely approves state law as 

meeting Federal requirements and does 

not impose additional requirements. 

See, e.g., Mid-Tex Electric Cooperative, 

Inc. v. FERC, 773 F.2d 327 (D.C. Cir. 

1985)(hereinafter Mid-Tex). 

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 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 cost-effective, 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 

actions 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 ($150 in 2013 when 

adjusted for inflation) by State, local, or 

Tribal governments or the private sector 

in any one year. The private sector 

expenditures that will result from the 

FIP, including BART controls for Basin 

Electric Laramie River Station Units 1– 

3 ($67,128,584 per year) 242, and 

PacifiCorp Dave Johnston Unit 3 

($11,680,144 per year) 243 and Wyodak 

($15,073,502) 244, are $93,882,230 per 

year. This calculation assumes that 

PacifiCorp would choose to install SCR 

on Dave Johnston Unit 3, and not to 

otherwise voluntarily retire the unit, an 

option which the FIP allows. 

Additionally, we do not foresee 

significant costs (if any) for state and 

local governments. Thus, because the 

annual expenditures associated with the 

FIP are less than the inflation-adjusted 

threshold of $150 million in any one 

year, this rule is not subject to the 

requirements of sections 202 or 205 of 

UMRA. This rule is also not subject to 

the requirements of section 203 of 

UMRA because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. 

E. Executive Order 13132: Federalism 

Executive Order 13132, 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 final 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 

final 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 under the CAA to 

include in its SIP provisions to meet the 

visibility requirements of Part C of Title 

I of the CAA and to prohibit emissions 

from interfering with other states 

measures to protect visibility. Thus, 

Executive Order 13132 does not apply 

to this action. 

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Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 5219 

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 final rule will limit 

emissions of NOX 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. 

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. This final rule 

limits emissions of NOX from three 

facilities and five BART units in 

Wyoming. The partial approval of the 

SIP merely approves state law as 

meeting Federal requirements and 

imposes no additional requirements 

beyond those imposed by state law. 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. Section 804 

exempts from section 801 the following 

types of rules (1) rules of particular 

applicability; (2) rules relating to agency 

management or personnel; and (3) rules 

of agency organization, procedure, or 

practice that do not substantially affect 

the rights or obligations of non-agency 

parties. 5 U.S. 804(3). EPA is not 

required to submit a rule report 

regarding today’s action under section 

801 because this is a rule of particular 

applicability. This rule finalizes a FIP 

for three sources. 

L. Judicial Review 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by March 31, 2014. Pursuant to 

CAA section 307(d)(1)(B), this action is 

subject to the requirements of CAA 

section 307(d) as it promulgates a FIP 

under CAA section 110(c). Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. See CAA 

section 307(b)(2). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Particulate matter, 

Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Dated: January 10, 2014. 

Gina McCarthy, 

Administrator, U.S. EPA. 

40 CFR part 52 is amended to read 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 ZZ—Wyoming 

■ 2. Section 52.2620, in the table in 

paragraph (e) is amended by adding an 

entry for ‘‘XXIII. Wyoming State 

Implementation Plan for Regional Haze 

for 309(g)’’ at the end of the table. 

§ 52.2620 Identification of plan. 

* * * * * 

(e) * * * 

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5220 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

3 In order to determine the EPA effective date for 

a specific provision listed in this table, consult the 

Federal Register notice cited in this column for the 

particular provision. 

Name of nonregulatory SIP 

provision 

Applicable 

geographic or 

nonattainment 

area 

State 

submittal 

date/adopted 

date 

EPA approval date 

and citation 3 Explanations 

*******

XXIII. Wyoming State Implementation Plan for Regional Haze for 309(g).Statewide .......... Submitted: 

1/12/2011

1/30/14, [Insert Federal Register 

page number 

where the document begins.].

Excluding portions of the following: Chapter 6.4, Chapter 6.5.5, Chapter 6.5.7, Chapter 6.5.8, and Chapter 

7.5. We are excluding portions of these chapters because EPA disapproved: (1) The NOX BART determinations for: (1) Laramie River Units 1–3, Dave 

Johnston Unit 3, and Wyodak Unit 1; (2) the State’s 

monitoring, recordkeeping, and reporting requirements for BART units; (3) the State’s reasonable 

progress goals. 

■ 3. Add § 52.2636 to subpart ZZ to read 

as follows: 

§ 52.2636 Implementation plan for regional 

haze. 

(a) Applicability. (1) This section 

applies to each owner and operator of 

the following emissions units in the 

State of Wyoming for which EPA 

approved the State’s BART 

determination: 

(i) FMC Westvaco Trona Plant Units 

NS–1A and NS–1B (PM and NOX); 

(ii) TATA Chemicals Partners 

(previously General Chemical) Boilers C 

and D (PM and NOX); 

(iii) Basin Electric Power Cooperative 

Laramie River Station Units 1, 2, and 3 

(PM); 

(iv) PacifiCorp Dave Johnston Power 

Plant Unit 3 (PM); 

(v) PacifiCorp Dave Johnston Power 

Plant Unit 4 (PM and NOX); 

(vi) PacifiCorp Jim Bridger Power 

Plant Units 1, 2, 3, and 4 (PM and NOX); 

(vii) PacifiCorp Naughton Power Plant 

Units 1, 2, and 3 (PM and NOX); and 

(viii) PacifiCorp Wyodak Power Plant 

Unit 1 (PM). 

(2) This section also applies to each 

owner and operator of the following 

emissions units in the State of Wyoming 

for which EPA disapproved the State’s 

BART determination and issued a NOX

BART Federal Implementation Plan: 

(i) Basin Electric Power Cooperative 

Laramie River Station Units 1, 2, and 3; 

(ii) PacifiCorp Dave Johnston Unit 3; 

and 

(iii) PacifiCorp Wyodak Power Plant 

Unit 1. 

(b) Definitions. Terms not defined 

below shall have the meaning given 

them in the Clean Air Act or EPA’s 

regulations implementing the Clean Air 

Act. For purposes of this section: 

(1) BART means Best Available 

Retrofit Technology. 

(2) BART unit means any unit subject 

to a Regional Haze emission limit in 

Table 1 and Table 2 of this section. 

(3) CAM means Compliance 

Assurance Monitoring as required by 40 

CFR part 64. 

(4) Continuous emission monitoring 

system or CEMS means the equipment 

required by this section to sample, 

analyze, measure, and provide, by 

means of readings recorded at least once 

every 15 minutes (using an automated 

data acquisition and handling system 

(DAHS)), a permanent record of NOX

emissions, diluent, or stack gas 

volumetric flow rate. 

(5) FIP means Federal Implementation 

Plan. 

(6) The term lb/hr means pounds per 

hour. 

(7) The term lb/MMBtu means pounds 

per million British thermal units of heat 

input to the fuel-burning unit. 

(8) NOX means nitrogen oxides. 

(9) Operating day means a 24-hour 

period between 12 midnight and the 

following midnight during which any 

fuel is combusted at any time in the 

BART unit. It is not necessary for fuel 

to be combusted for the entire 24-hour 

period. 

(10) The owner/operator means any 

person who owns or who operates, 

controls, or supervises a unit identified 

in paragraph (a) of this section. 

(11) PM means filterable total 

particulate matter. 

(12) Unit means any of the units 

identified in paragraph (a) of this 

section. 

(c) Emissions limitations. (1) The 

owners/operators of emissions units 

subject to this section shall not emit, or 

cause to be emitted, PM or NOX in 

excess of the following limitations: 

TABLE 1 TO § 52.2636 

[Emission limits for BART units for which EPA approved the State’s BART and Reasonable Progress determinations] 

Source name/BART unit PM emission 

limits—lb/MMBtu 

NOX emission 

limits— 

lb/MMBtu 

(30-day 

rolling 

average) 

FMC Westvaco Trona Plant/Unit NS–1A ........................................................................................................ 0.05 0.35 

FMC Westvaco Trona Plant/Unit NS–1B ........................................................................................................ 0.05 0.35 

TATA Chemicals Partners (General Chemical) Green River Trona Plant/Boiler C ........................................ 0.09 0.28 

TATA Chemicals Partners (General Chemical) Green River Trona Plant/Boiler D ........................................ 0.09 0.28 

Basin Electric Power Cooperative Laramie River Station/Unit 1 .................................................................... 0.03 N/A 

Basin Electric Power Cooperative Laramie River Station/Unit 2 .................................................................... 0.03 N/A 

Basin Electric Power Cooperative Laramie River Station/Unit 3 .................................................................... 0.03 N/A 

PacifiCorp Dave Johnston Power Plant/Unit 3 ................................................................................................ 0.015 N/A 

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Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 5221 

TABLE 1 TO § 52.2636—Continued 

[Emission limits for BART units for which EPA approved the State’s BART and Reasonable Progress determinations] 

Source name/BART unit PM emission 

limits—lb/MMBtu 

NOX emission 

limits— 

lb/MMBtu 

(30-day 

rolling 

average) 

PacifiCorp Dave Johnston Power Plant/Unit 4 ................................................................................................ 0.015 0.15 

PacifiCorp Jim Bridger Power Plant/Unit 1 1 ................................................................................................... 0.03 0.26/0.07 

PacifiCorp Jim Bridger Power Plant/Unit 2 1 ................................................................................................... 0.03 0.26/0.07 

PacifiCorp Jim Bridger Power Plant/Unit 3 1 ................................................................................................... 0.03 0.26/0.07 

PacifiCorp Jim Bridger Power Plant/Unit 4 1 ................................................................................................... 0.03 0.26/0.07 

PacifiCorp Naughton Power Plant/Unit 1 ........................................................................................................ 0.04 0.26 

PacifiCorp Naughton Power Plant/Unit 2 ........................................................................................................ 0.04 0.26 

PacifiCorp Naughton Power Plant/Unit 3 ........................................................................................................ 0.015 0.07 

PacifiCorp Wyodak Power Plant/Unit 1 ........................................................................................................... 0.015 N/A 

1The owners and operators of PacifiCorp Jim Bridger Units 1, 2, 3, and 4 shall comply with the NOX emission limit for BART of 0.26 lb/MMBtu 

and PM emission limit for BART of 0.03 lb/MMBtu and other requirements of this section by March 4, 2019. The owners and operators of 

PacifiCorp Jim Bridger Units 1, 2, 3 and 4 shall comply with the NOX emission limit for reasonable progress of 0.07 lb/MMBtu by: December 31, 

2022 for Unit 1, December 31, 2021 for Unit 2, December 31, 2015, for Unit 3, and December 31, 2016, for Unit 4. 

TABLE 2 TO § 52.2636 

[Emission limits for BART units for which EPA disapproved the State’s BART determination and implemented a FIP] 

Source name/BART unit 

NOX

emission 

limit—lb/ 

MMBtu 

(30-day 

rolling 

average) 

Basin Electric Power Cooperative Laramie River Station/Unit 1 ............................................................................................................ 0.07 

Basin Electric Power Cooperative Laramie River Station/Unit 2 ............................................................................................................ 0.07 

Basin Electric Power Cooperative Laramie River Station/Unit 3 ............................................................................................................ 0.07 

PacifiCorp Dave Johnston Unit 3 ............................................................................................................................................................ *0.07 

PacifiCorp Wyodak Power Plant/Unit 1 ................................................................................................................................................... 0.07 

* (or 0.28 and shut-down-by December 31, 2027). 

(2) These emission limitations shall 

apply at all times, including startups, 

shutdowns, emergencies, and 

malfunctions. 

(d) Compliance date. (1) The owners 

and operators of PacifiCorp Jim Bridger 

Units 1, 2, 3, and 4 shall comply with 

the NOX emission limit of 0.26 lb/

MMBtu and PM emission limit of 0.03 

lb/MMBtu and other requirements of 

this section by March 4, 2019. The 

owners and operators of PacifiCorp Jim 

Bridger Units 1, 2, 3 and 4 shall comply 

with the NOX emission limit of 0.07 lb/ 

MMBtu by: December 31, 2022 for Unit 

1, December 31, 2021 for Unit 2, 

December 31, 2015, for Unit 3, and 

December 31, 2016, for Unit 4. 

(2) The owners and operators of the 

other BART sources subject to this 

section shall comply with the emissions 

limitations and other requirements of 

this section by March 4, 2019. 

(3) Compliance alternatives for 

PacifiCorp Dave Johnston Unit 3. (i) The 

owners and operators of PacifiCorp 

Dave Johnston Unit 3 will meet a NOX

emission limit of 0.07 lb/MMBtu (30- 

day rolling average) by March 4, 2019; 

or 

(ii) Alternatively, the owners and 

operators of PacifiCorp Dave Johnston 

Unit 3 will permanently cease operation 

of this unit on or before December 31, 

2027. 

(e) Compliance determinations for 

NOX. (1) For all BART units other than 

Trona Plant units: 

(i) CEMS. At all times after the earliest 

compliance date specified in paragraph 

(d) of this section, the owner/operator of 

each unit shall maintain, calibrate, and 

operate a CEMS, in full compliance with 

the requirements found at 40 CFR part 

75, to accurately measure NOX, diluent, 

and stack gas volumetric flow rate from 

each unit. The CEMS shall be used to 

determine compliance with the 

emission limitations in paragraph (c) of 

this section for each unit. 

(ii) Method. (A) For any hour in 

which fuel is combusted in a unit, the 

owner/operator of each unit shall 

calculate the hourly average NOX

emission rate in lb/MMBtu at the CEMS 

in accordance with the requirements of 

40 CFR part 75. At the end of each 

operating day, the owner/operator shall 

calculate and record a new 30-day 

rolling average emission rate in lb/

MMBtu from the arithmetic average of 

all valid hourly emission rates from the 

CEMS for the current operating day and 

the previous 29 successive operating 

days. 

(B) An hourly average NOX emission 

rate in lb/MMBtu is valid only if the 

minimum number of data points, as 

specified in 40 CFR part 75, is acquired 

by both the pollutant concentration 

monitor (NOX) and the diluent monitor 

(O2 or CO2). 

(C) Data reported to meet the 

requirements of this section shall not 

include data substituted using the 

missing data substitution procedures of 

subpart D of 40 CFR part 75, nor shall 

the data have been bias adjusted 

according to the procedures of 40 CFR 

part 75. 

(2) For all Trona Plant BART units: 

(i) CEMS. At all times after the 

compliance date specified in paragraph 

(d) of this section, the owner/operator of 

each unit shall maintain, calibrate, and 

operate a CEMS, in full compliance with 

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5222 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations 

the requirements found at 40 CFR part 

60, to accurately measure NOX, diluent, 

and stack gas volumetric flow rate from 

each unit, including the CEMS quality 

assurance requirements in appendix F 

of 40 CFR part 60. The CEMS shall be 

used to determine compliance with the 

emission limitations in paragraph (c) of 

this section for each unit. 

(ii) Method. (A) For any hour in 

which fuel is combusted in a unit, the 

owner/operator of each unit shall 

calculate the hourly average NOX

emission rate in lb/MMBtu at the CEMS 

in accordance with the requirements of 

40 CFR part 60. At the end of each 

operating day, the owner/operator shall 

calculate and record a new 30-day 

rolling average emission rate in lb/

MMBtu from the arithmetic average of 

all valid hourly emission rates from the 

CEMS for the current operating day and 

the previous 29 successive operating 

days. 

(B) An hourly average NOX emission 

rate in lb/MMBtu is valid only if the 

minimum number of data points, as 

specified in 40 CFR part 60, is acquired 

by both the pollutant concentration 

monitor (NOX) and the diluent monitor 

(O2 or CO2). 

(f) Compliance determinations for 

particulate matter. Compliance with the 

particulate matter emission limit for 

each BART unit shall be determined 

from annual performance stack tests. 

Within 60 days of the compliance 

deadline specified in paragraph (d) of 

this section, and on at least an annual 

basis thereafter, the owner/operator of 

each unit shall conduct a stack test on 

each unit to measure particulate 

emissions using EPA Method 5, 5B, 5D, 

or 17, as appropriate, in 40 CFR part 60, 

Appendix A. A test shall consist of three 

runs, with each run at least 120 minutes 

in duration and each run collecting a 

minimum sample of 60 dry standard 

cubic feet. Results shall be reported in 

lb/MMBtu. In addition to annual stack 

tests, the owner/operator shall monitor 

particulate emissions for compliance 

with the BART emission limits in 

accordance with the applicable 

Compliance Assurance Monitoring 

(CAM) plan developed and approved by 

the State in accordance with 40 CFR 

part 64. 

(g) Recordkeeping. The owner/

operator shall maintain the following 

records for at least five years: 

(1) All CEMS data, including the date, 

place, and time of sampling or 

measurement; parameters sampled or 

measured; and results. 

(2) Records of quality assurance and 

quality control activities for emissions 

measuring systems including, but not 

limited to, any records required by 40 

CFR part 75. Or, for Trona Plant units, 

records of quality assurance and quality 

control activities for emissions 

measuring systems including, but not 

limited to appendix F of 40 CFR part 60. 

(3) Records of all major maintenance 

activities conducted on emission units, 

air pollution control equipment, and 

CEMS. 

(4) Any other CEMS records required 

by 40 CFR part 75. Or, for Trona Plant 

units, any other CEMs records required 

by 40 CFR part 60. 

(5) Records of all particulate stack test 

results. 

(6) All data collected pursuant to the 

CAM plan. 

(h) Reporting. All reports under this 

section shall be submitted to the 

Director, Office of Enforcement, 

Compliance and Environmental Justice, 

U.S. Environmental Protection Agency, 

Region 8, Mail Code 8ENF–AT, 1595 

Wynkoop Street, Denver, Colorado 

80202–1129. 

(1) The owner/operator of each unit 

shall submit quarterly excess emissions 

reports for NOX BART units no later 

than the 30th day following the end of 

each calendar quarter. Excess emissions 

means emissions that exceed the 

emissions limits specified in paragraph 

(c) of this section. The reports shall 

include the magnitude, date(s), and 

duration of each period of excess 

emissions, specific identification of 

each period of excess emissions that 

occurs during startups, shutdowns, and 

malfunctions of the unit, the nature and 

cause of any malfunction (if known), 

and the corrective action taken or 

preventative measures adopted. 

(2) The owner/operator of each unit 

shall submit quarterly CEMS 

performance reports, to include dates 

and duration of each period during 

which the CEMS was inoperative 

(except for zero and span adjustments 

and calibration checks), reason(s) why 

the CEMS was inoperative and steps 

taken to prevent recurrence, and any 

CEMS repairs or adjustments. The 

owner/operator of each unit shall also 

submit results of any CEMS 

performance tests required by 40 CFR 

part 75. Or, for Trona Plant units, the 

owner/operator of each unit shall also 

submit results of any CEMs performance 

test required appendix F of 40 CFR part 

60 (Relative Accuracy Test Audits, 

Relative Accuracy Audits, and Cylinder 

Gas Audits). 

(3) When no excess emissions have 

occurred or the CEMS has not been 

inoperative, repaired, or adjusted during 

the reporting period, such information 

shall be stated in the quarterly reports 

required by paragraphs (h)(1) and (2) of 

this section. 

(4) The owner/operator of each unit 

shall submit results of any particulate 

matter stack tests conducted for 

demonstrating compliance with the 

particulate matter BART limits in 

paragraphs (c) of this section, within 60 

calendar days after completion of the 

test. 

(5) The owner/operator of each unit 

shall submit semi-annual reports of any 

excursions under the approved CAM 

plan in accordance with the schedule 

specified in the source’s title V permit. 

(i) Notifications. (1) The owner/

operator shall promptly submit 

notification of commencement of 

construction of any equipment which is 

being constructed to comply with the 

NOX emission limits in paragraph (c) of 

this section. 

(2) The owner/operator shall 

promptly submit semi-annual progress 

reports on construction of any such 

equipment. 

(3) The owner/operator shall 

promptly submit notification of initial 

startup of any such equipment. 

(j) Equipment operation. At all times, 

the owner/operator shall maintain each 

unit, including associated air pollution 

control equipment, in a manner 

consistent with good air pollution 

control practices for minimizing 

emissions. 

(k) Credible evidence. Nothing in this 

section shall preclude the use, including 

the exclusive use, of any credible 

evidence or information, relevant to 

whether a source would have been in 

compliance with requirements of this 

section if the appropriate performance 

or compliance test procedures or 

method had been performed. 

■ 4. Add § 52.2637 to subpart ZZ to read 

as follows: 

§ 52.2637 Federal implementation plan for 

reasonable attributable visibility impairment 

long-term strategy. 

As required by 40 CFR 41.306(c), EPA 

will ensure that the review of the State’s 

reasonably attributable visibility 

impairment long-term strategy is 

coordinated with the regional haze longterm strategy under 40 CFR 51.308(g). 

EPA’s review will be in accordance with 

the requirements of 40 CFR 51.306(c). 

[FR Doc. 2014–00930 Filed 1–29–14; 8:45 am] 

BILLING CODE 6560–50–P 

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