Fw: Part of E.O. 12866 Review: Partial Response to interagency comments on "Regional Haze: Revisions to Provisions Governing Alternatives to Source-Specific Best Available Retrofit Technology (BART) Determinations, Limited SIP Disapprovals , and Federal Implementation Plans " ; RIN 2060-AR05 Martha Keating to: Martha Keating 05/30/2012 12:17 PM From: Martha Keating/RTP/USEPA/US To: Martha Keating/RTP/USEPA/US@EPA

From: Phil Lorang/RTP/USEPA/US To: "Higgins, Cortney" <Cortney

_ Higgins@omb.eop.gov> Cc: Martha Keating/RTP/USEPA/US@EPA Date: 05/23/2012 10:44 AM Subject: Part of E.O. 12866 Review: Partial Response to interagency comments on "Regional Haze: Revisions to Provisions Governing Alternatives to Source-Specific Best Available Retrofit Technology (BART) Determinations, Limited SIP Disapprovals, and Federal Implementation Plans" ; RIN 2060-AR05

EO12866_BTB_2060-AR-05_Final_FRN_20120418_REDLINE_5_23_12_ALTERNATE.docx As we discussed, this version is the same with regard to section IV as the version previously provided to you, pending the outcome of the separate discussion on that section. Martha Keating and/or Lea Jones will lead the EPA team during the call on Thursday at 10:30 am to discuss these revisions. Phil Lorang, Senior Policy Advisor Air Quality Policy Division, OAQPS, EPA 919-541-5463*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 1 of 59 6560-50-P ENVIRONMENTAL PRO TECTION AGENCY 40 CFR Part s 51 and 52 [EPA-HQ-OAR-2011-0729; FRL – 9672-9 ] RIN 2060-AR05 Regional Haze: Revisions to Provisions Governing Alternatives to Source-Specific Best Available Retrofit Technology (BART) Determinations , Limited SIP Disapprovals, and Federal Implementation Plans AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: The EPA is finalizing revisions to our rules pertaining to the regional haze program. In this action, the EPA is finalizing our finding that the trading programs in the Transport Rule, also known as the Cross-State Air Pollution Rule (CSAPR), achie ve greater reasonable progress towards the national goal of achieving natural visibility conditions in Class I areas than source-specific Best Available Retrofit Technology (BART) in those states covered by the Transport Rule. In this action, the EPA is also finalizing a limited disapproval of the regional haze State Implementation Plans (SIPs) that have been submitted by Alabama, Georgia, Indiana, Iowa, Louisiana, Michigan, Mississippi, Missouri, North Carolina, Ohio, Pennsylvania, South Carolina, Virg inia and Texas because these states relied on requirements of the Clean Air Interstate Rule (CAIR) to satisfy certain regi onal haze requirements. To address deficiencies in CAIR-dependent regional haze SIPs, in this action the EPA is promulgating Federal Implementation Plans (FIPs) to replace relian ce on CAIR with reliance on the Transport Rule in the regional haze SIPs of Georgia, Indiana, Iowa, Kentucky, Michigan, Missouri, Ohio, Pennsylvania, South Carolina, Tennessee, Texas , Virginia and West Virginia. DATES: This final rule is effective on [INSERT DATE 60 DAYS AFTE R PUBLICATION IN THE FEDERAL REGISTER]

. ADDRESSES:*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 2 of 59 Docket . The EPA has established a docket for this action under docket ID No. EPA-HQ-OAR-2011- 0729. All documents in the docket ar e listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g. , confidential business information or other information whose disclosure is re stricted by statute. Certain othe r material, such as copyrighted material, will be publicly available only in hard co py. Publicly available docketmaterials are available either electronically in www.regulations.gov or in hard copy at the Air and Radiation Docket and Information Center, EPA/DC, EPA West Bu ilding, Room 3334, 1301 Constitution Ave., NW, Washington, D.C. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Pub lic Reading Room is (202) 566- 1744, and the telephone number for th e Air Docket is (202) 566-1742. FOR FURTHER INFORMATION CONTACT: Ms. Martha Keating, Office of Air Quality Planning and Standards, Air Quality Policy Division, Ma il code C539-04, Research Triangle Park, NC 27711, telephone (919) 541-9407; fax numbe r: 919-541-0824; email address: keating.martha@epa.gov

. SUPPLEMENTARY INFORMATION: I. General Information A. Does this action apply to me ? This action affects state and lo cal air pollution control agencies located within the geographic areas covered by the Transport Rule 1 and whose regional haze SIP relied on CAIR 2 as an alternative to BART for sulfur dioxide (SO 2 ) and/or nitrogen oxide (NO X ) for electric generating units (EGUs) subject to BART requirements, or whose regional haze SIP re lied on the Transport Rule. Some of the EGUs located in such geographic areas may also be affected by this action in that aff ected states now have the

1 See Federal Implementation Plans to Reduce Intersta te Transport of Fine Particulate Matter and Ozone, 76 FR 48208 (August 8, 2011). 2 See Rule to Reduce Interstate Trans port of Fine Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; Revisions to the NO x SIP Call; Final Rule, 70 FR 25162 (May 12, 2005).*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 3 of 59 option of not requiring such EGUs to meet source -specific BART emission limits to which these EGUs otherwise could be subject. These sources are in the following groups: Industry group SIC aNAICS b Electric Services 492 221111, 221112, 221113, 221119, 221121,
221122

aStandard Industrial Classification. b North American Industr y Classification System. B. Where can I get a copy of this document and other related information ? In addition to being available in the docket, an electronic copy of this notice will be posted at http://www.epa.gov/ttn/oarpg/new.html under “Recent Actions .” C. How is this notice organized ? The information presented in this notice is organized as follows: I. General Information A. Does this action apply to me? B. Where can I get a copy of this doc ument and other related information? C. How is this notice organized? II. Background and General Legal Consid erations for the EPA’s Final Acton A. Background 1. Criteria for Developing an A lternative Program to BART 2. What is the relationshi p between BART and CAIR? 3. Remand of CAIR and Implications for State Regional Haze Implementation Plans 4. The Transport Rule and Regional Haze SIPs B. Summary of the EPA Responses to General an d Legal Issues Raised in Public Comments 1. Authority for an Alternative Trading Program 2. Effect of the Transport Rule Stay 3. Rationale for Disapproval of SIPs Based on CAIR 4. The Relationship between a Better-than-BA RT Determination and Reasonable Progress III. Technical Analysis Supporting the Determination of the Transport Rule as an Alternative to BART A. What analysis did we rely on for our proposed determination? 1. Application of the Two-Pronged Test 2. Identification of Af fected Class I Areas 3. Control Scenarios Examined 4. Emission Projections 5. Air Quality Modeling Results B. Summary of the EPA Responses to Comments on the Technical Analysis*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 4 of 59 1. Comments Related to the Emissions S cenarios Used in the EPA’s Analysis 2. Identification of Af fected Class I Areas 3. Ozone Season-only Transport Rule States 4. Comments Asserting that the EP A Needs to Re-do the Analysis IV. Reasonably Attributable Visibility Impairment (RAVI) A. What did the EPA propose? B. Public Comments related to RAVI C. Final Action on RAVI V. Limited Disapproval of Cert ain States’ Regional Haze SIPs A. What did the EPA propose? B. Public Comments Rela ted to Limited Disapprovals C. Final Action on Limited Disapprovals VI. FIPs A. What did the EPA propose? B. Public Comments on Proposed FIPs Limited Disapprovals C. Final Action on FIPs VII. Regulatory Text A. What did the EPA propose? B. Clarification of Regulatory Text VIII. Statutory and Executive Order Review A. Executive Order 12866: Regulatory Planni ng and Review and Executive Order 13563: Improving Regulation a nd Regulatory Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coor dination with Indian Tribal Governments G. Executive Order 13045: Protection of Children from Environmental Health and Safety Risks H. Executive Order 13211: Actions Concerning Re gulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act IX. Statutory Authority II. Background and General Legal Consid erations for the EPA’s Final Action
A. Background Section 169A(b)(2)(A) of the CAA requires states to revise their SIPs to contain such measures as may be necessary to make reasonable progress towards the natural visibility goal, including a requirement that certain categories of existing major stationary sources built between 1962 and 1977*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 5 of 59 procure, install, and operate BA RT as determined by the state. 3 Under the Regional Haze Rule, states are directed to conduct BART determinations for such “B ART-eligible” sources that may be anticipated to cause or contribute to any visibili ty impairment in a Class I area. Rather than requiring source-specific BART controls, states also have th e flexibility to adopt an emissions trading program or other alternative program as long as the alternative provides greate r reasonable progress towa rds improving visibility than BART. 40 CFR §51.308(e)(2). The EPA provided stat es with this flexibi lity in the Regional Haze Rule, adopted in 1999, and further refined the criter ia for assessing whether an alternative program provides for greater reasonable pr ogress in three subsequent rule makings. 64 FR 35714 (July 1, 1999); 70 FR 39104 (July 6, 2005); 71 FR 60612 (October 13, 2006). These criteria are described below. 1. Criteria for Developing an Alternative Program to BART Specific criteria for determining if an altern ative measure achieves gr eater reasonable progress than source-specific BART are set out in the Regional Haze Rule at §51.308(e)(3). 4 The “better-thanBART” test may be satisfied as follows: If the distribution of emissions is notsubstantially different than under BART, and the alternative measure results in greater emission reducti ons, then the alternative measure may be deemed to achieve greater reasonab le progress. If the dist ribution of emissions is significantly different, then states are directed to conduct an air quality modeling study to determine

3 The preamble to the proposed rule provides add itional background on the visibility requirements of the Clean Air Act and the EPA’s Regional Haze Rule. 76 FR 82221-22. 4 The Regional Haze Rule also allows for a demons tration that an alternative program provides for greater reasonable progress to be based on the clear weight of evidence. 40 CFR § 51.308(e)(2)(E). We concluded that a more general test may be appropri ate in certain circumstances, such as where, for example, technical or data limitations limit the abi lity of a state (or the EPA) to undertake a robust comparison using the test set out in 40 CFR § 51.308(e)(3).*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 6 of 59 differences in visibility between BART and the alte rnative program for each impacted Class I area for the worst and best 20 percent of days. 5 A test with the following two criter ia (the “two-pronged visibility test”) The two

- pronged visibility test would demonstrate “greater re asonable progress” under the alternative program if both prongs of the test of the following criteria are met:

- Visibility does not dec line in any Class I area 6 , and

- There is an overall improvement in visibility, determined by comparing the average differences between BART and the alternative over all affected Class I areas. 2. What is the relations hip between BART and CAIR? In May 2005, the EPA published CAIR, which require d 28 states and the District of Columbia to reduce emissions of SO 2 and NO X that significantly contribute to, or interfere with maintenance of, the 1997 national ambient air quality standards (NAAQS) fo r fine particulates and/or ozone in any downwind state. The CAIR established emission budgets for SO 2 and NO X for states that contribute significantly to nonattainment in downwind states and required the significantly contributing states to submit SIP revisions that implemented these budgets. Because such SIP revisions were already overdue, the EPA subsequently promulgated CAIR FIPs for the affected states establishing cap and trade programs for EGUs with opt-in provisions for other sour ces. States had the flexibility to subsequently adopt SIP revisions mirroring CAIR requirements or otherwise providing emission reductions sufficient to address interference with attainment or mainte nance of the NAAQS in other states. Many affected states adopted CAIR-mirroring SIPs, while ot hers chose to remain under CAIR FIPs.

5 While the Regional Haze Rule di rects the state to conduct the air quality modeling study, as described in section III.C.2, the EPA itself conducted such a study for CAIR and through a notice-and-comment rulemaking codified the conclusion that the stated criteria were met by adding specific provisions allowing the use of CAIR in lieu of source-spec ific BART. We have now done the same for the Transport Rule. 6 The “decline” is relative to modeled future baselin e visibility conditions in the absence of any BART or alternative program control requirements.*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 7 of 59 As noted above, the Regional Haze Rule allows st ates to implement an alternative program in lieu of BART so long as the alternative program has been demonstrated to achieve greater reasonable progress toward the national visibili ty goal than would BART. The EPA made just such a demonstration for CAIR in revisions to the regional haze progra m made in 2005. 70 FR 39104. In those revisions, we amended our regulations to provide that states participating in th e CAIR cap-and-trade programs under 40 CFR part 96 pursuant to an EPA-approved CAIR SIP or states that remain subject to the a CAIR FIP in 40 CFR part 97 need not re quire affected BART-eligible EGUs to install, operate , and maintain BART for emissions of SO 2 and NO X . 40 CFR 51.308(e)(4). In Utility Air Regulatory Group v. EPA , 471 F.3d 1333 (DC Cir. 2006), the court uphe ld our determination that stat es could rely on CAIR as an alternative program to BART for EG Us in the CAIR-affected states. The court concluded that the EPA’s test for determining whether an alternative pr ogram achieves greater reasonable progress was a reasonable one. Id At 1340. The court also concluded that nothing in the Clean Air Act required the EPA to “impose a separate technology mandate for sources w hose emissions affect Cla ss I areas, rather than piggy-backing on solutions devised unde r other statutory categories.” Id. As a result of our determination that CAIR wa s “better-than-BART,” a number of states in the CAIR region, fully consistent with our regulations, relied on the CA IR cap-and-trade programs as an alternative to BART fo r EGU emissions of SO 2 and NO X in designing their regional haze implementation plans. These states also relied on CAIR as an element of a long-term strategy for achieving their reasonable progress goals for their regional haze programs

. 3. Remand of CAIR and Implications fo r State Regional Haze Implementation Plans Following our determination in 2005 that CAIR wa s “better-than-BART,” th e D.C. Circuit Court ruled on several petitions for review challenging CAIR on various grounds. As a result of this litigation, the D.C. Circuit Court remanded CAIR to the EPA but later decided not to vacate the rule. 7 The court

7 See North Carolina v. EPA , 531 F.3d 896; modified by 550 F.3d 1176 (D.C. Cir. 2008).*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 8 of 59 thereby left CAIR and CAIR SIPs and FIPs in place in order to “tempor arily preserve the environmental values covered by CAIR” until the EPA replaced it w ith a rule consistent w ith the court's opinion. 550 F.3d at 1178. The EPA replaced CAIR with the Transport Rule , which was published in the Federal Register on August 8, 2011. 8 The EPA expects that the requirement s of the Transport Rule, which are currently stayed pending the outcome of litigation, will take effect in advance of 2018, the date by which all necessary emission reductions must take pl ace for a BART alternative program. See 40 CFR 51.308(e)(2)(iii). the 2018 deadline for any BART alternativ e program . As promulgated, the Transport Rule would have addressed emissions in 2012 and late r years and would have left the requirements of CAIR and the CAIR FIPs in place to address emissions through the end of 2011. In the interim period before the Transport Rule takes effect, t he CAIR and the CAIR FIPs w ere to remain in place to address emissions through the end of the 2011 control periods

. The D.C. Circuit, however, on December 30, 2011, stayed the Transport Rule (including the provisions that would have sunset CAIR and the CAIR FIPs) and instructed the EPA to continue to admini ster CAIR pending the outcome of the court’s decision on numerous the petitions for review cha llenging the Transport Rule . EME Homer City v. EPA , No. 11-1302 (Order). Many states relied on CAIR as an alternative to BART for SO 2 and NO X for subject EGUs, as allowed under the then-current BART provisions at 40 CFR 51.308(e)(4). Th ese states also relied on the improvement in visibility expected to result from controls planned or already installed on sources in order to meet CAIR provisions in developing their long-term visibility strategy. In addition, many states relied upon their own CAIR SIPs or the CAIR FIPs for their states as legal jus tification for these planned controls and consequently did not include separate en forceable measures in their long-term strategies (a required element of a regional haze SIP submission) to ensure these EGU reducti ons. These states also

8 See Federal Implementation Plans to Reduce Intersta te Transport of Fine Particulate Matter and Ozone. 76 FR 48208.*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 9 of 59 submitted demonstrations showing that no addi tional controls on EGUs beyond CAIR would be reasonable for the first 10-year implementa tion period of the regional haze program. In summary, many of the states in the CAIR-a ffected region have base d a number of required elements of their regional haze programs on CAIR. However, as CAIR has been remanded and only remains in place temporarily, we cannot fully approve th ese regional haze SIP revi sions that have relied on the now-temporary reductions from CAIR. Although CAIR is currently in effect as a result of the Order by the EME Homer City court st aying the Transport Rule, this does not affect the substance of the
D.C

. Circuit’s ruling in 2008 remanding CAIR to the EPA. Although CAIR is currently in place, as a result of the Order by the EME Homer Generation court, this does not affect the court’s ruling remanding CAIR to the EPA. 4. The Transport Rule and Regional Haze SIPs The Transport Rule as promulgated, would have will sunset CAIR and the CAIR FIPs at the end of 2011. once the Transport Rule comes into effect. The Transport Rule , as promulgated, requires 28 states in the eastern half of th e United States to significantly imp rove air quality by reducing EGU SO 2 and NO X emissions that cross state li nes and contribute to ground-leve l ozone and/or fine particle pollution in other states. The ru le allows allowance trading am ong covered sources, utilizing an allowance market infrastructure modeled after exis ting allowance trading programs. The Transport Rule allows sources to trade emissions allowances wi th other sources within the same program (e.g ., ozone season NO X ) in the same or different states, while firm ly constraining any emissions shifting that may occur by establishing an emission ceiling for each state. In our proposal, we describe d a technical analysis that we conducted to determine whether compliance with the Transport Rule would satisfy regional haze BART-related requirements. This technical analysis is the basis of this final action in which we are fi nalizing our determination that the Transport Rule achieves greater reasonable progress towards the na tional goal of achieving natural*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 10 of 59 visibility conditions than source-specific BART. For this final rule, an upda ted sensitivity analysis was conducted to account for subsequent revisions to cer tain state budgets in the Transport Rule. This analysis is described in s ection III.B.4 of this notice. B. Summary of the EPA Response to General a nd Legal Issues Raised in Public Comments The EPA has based its determination that the Transport Rule will achieve greater reasonable progress than BART on the approach used by the EP A in evaluating whether a similar program, CAIR, would satisfy the regional haze BART-related requi rements. As noted above, the Regional Haze Rule, promulgated in 1999, provides states with the flexibil ity to adopt an emissions trading program rather than requiring source-by-source BART. 40 CFR § 51.308(e)(2). Some commenters supported our general approach and agreed that the Transport Rule will provide for greater reasonable progress. Other commenters, however, disagreed with our conclusion that the Transport Rule can be used as an alternative to BART. These commente rs argued that we lack authority to make such a determination and that we cannot rely on the Transport Rule because of the current stay of that rule, and that the Transport Rule does not meet the necessary regulatory requirem ents for an alternative program in lieu of BART. Some commenters argued that we co uld not conclude that the Trans port Rule provides for greater reasonable progress without considering each state’s reasonable progress goals. Other commenters took the position that we should fully approve the regiona l haze SIPs that relied on CAIR to satisfy certain regional haze requirements and that our proposed limited disapproval of the regional haze SIPs was
unnecessary. 1. Authority for an Alternative Trading Program The EPA’s authority to establish non-BART altern atives in the regional haze program and the specific methodology outlined above for assessing such alternatives have been previously challenged and upheld by the D.C. Circuit. In the first case challenging the provisions in the Regional Haze Rule allowing for states to adopt alternative programs in lieu of BART, the court affirmed our interpretation*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 11 of 59 of CAA section 169A(b)(2) as allowing for alternatives to BART where those alternatives will result in greater reasonable progress than BART. Center for Energy and Economic Development v. EPA , 398 F.3d 653, 660 (D.C. Cir. 2005) (“CEED ”) (finding reasonable the EPA’s interpretation of CAA section 169(a)(2) as requiring BART only as necessary to make reasonable progress). In the second case, Utility Air Regulatory Group v. EPA , 471 F.3d 1333 (D.C. Cir. 2006) (“UARG ”), the court specifically upheld our determination that states coul d rely on CAIR as an alternative program to BART for EGUs in the CAIR-affected states. Notwithstanding the decisions of the D.C. Circ uit, several commenters argued that the plain language of the CAA precludes the EPA from allowi ng an alternative to BART. In their comments, these groups claimed that there is no statutory authority to exempt a source from BART, except as provided for in CAA §169A(c). Unde r the interpretation of the CAA urged by these commenters, BART must be required at each BART source that causes or contributes to visibility impairment at any Class I area. The commenters point to recent decisions post-dating CEED and UARG in support of their arguments. The commenter s’ ’s arguments that the plain language of the CAA precludes reliance on the Transport Rule to satisfy the BART re quirements were raised in UARG v. EPA and rejected by the D.C. Circuit when it denied the petitions for review of the EPA’s determination that CAIR provided for greater reasonable progress than BART . While the commenter argues that the court’s decision “has been undermined by subsequent D.C. Circuit decisions,” we disagree. The decisions cited by the commenter, North Carolina v. EPA , 531 F.3d 896, 906-08 (D.C. Circ. 2008) and NRDC v. EPA , 571 F.3d 1245, 1255-58 (D.C. Cir. 2009) address the requirements of sections 110(a)(2)(D )(i)(I) and 172(c)(1), respectively. Given the differences between the la nguage of these statutory provisions and that of section 169A(b)(2), the courts’ in terpretation of these other provisi ons of the CAA do not undermine the two previous rulings of the D.C. Circuit interpreti ng the visibility provisions of the Act. Similarly, the*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 12 of 59 Supreme Court’s conclusions in Massachusetts v. EPA , 549 U.S. 497, 528-29 (2007) regarding the meanings of “each” and “any” do not conflict with or impact the EPA’s reading of section 169A(b)(2) of the CAA or the D.C. Circuit’s conclusion that the agency’s interpretation of the statute is a reasonable one. As the CEED court explained, the EPA interprets this provision to mean that “each SIP’s ‘emission limits, schedules of compliance, and other measures’ must ‘include’ BART only ‘as may be necessary to make reasonable progress toward’ nationa l visibility goals.” 398 F.3d 653, quoting 42 U.S.C. § 7491(b)(2); see also Central Arizona Water C onservation District v. EPA , 990 F.2d 1531, 1543 (9 th Cir. 1993)(upholding the same interpretati on of section 169A(b)(2)). We do no t agree, therefore, that the EPA’s regulations allowing for the a doption of a trading program that provides for greater reasonable progress than BART in place of source-specifi c BART are inconsistent with the CAA.
Th ese is commenter s also argue s that the EPA can exempt sources from BART only if the EPA complies with the requirements of CAA § 169A(c)(1). This provision of the CAA allows the EPA to exempt a source from the BART requirements, by rule, upon a determination that the source is not reasonably anticipated to cause or contribute to significan t visibility impairment. As the commenters note, the appropriate Federal Land Manager(s) must agree with the exemption before it can go into effect. We do not agree that the provi sions governing exemptions to BART apply to our determination that the Transport Rule will make greater reasonab le progress than BART. Section 169A(b)(2) of the CAA requires each visibility SIP to contain “such emission limits, schedules of compliance and other measures as may be necessary to make reasonab le progress toward the national goal...including...a requirement that [certain major stationary source s]...procure, install, and operate...[BART].” Based on this language, in 1999, the EPA concluded that if an alternative program can be shown to make greater reasonable progress toward eliminating or reducing vi sibility impairment, then installing BART for the purpose of making reasonable progress toward th e national goal is no lo nger necessary. This*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 13 of 59 interpretation of the visibility pr ovisions of the CAA has been upheld three times by the courts, as noted above. We also received a comment s arguing that the EPA cannot rely on the Transport Rule as an alternative to BART because th e emission reductions do not m eet the requirement of 40 CFR 51.308(e)(2)(iv) which provides . This regulatory provision requires that “the emission reductions resulting from the emissions trading program ...w ill be surplus to those reductions resulting from measures adopted to meet requirements of the C AA as of the baseline date of the SIP.” We do not agree with the comment s that the emissions reductions resulting from the Transport Rule must be “surplus to those measures adopted to meet requirements of the CAA as of the baseline date of the SIP.” We note that the requirements of 40 CFR 51.308(e)(2) are not directly applicable to this action, as the special provisions in the Region al Haze Rule addressing the Transport Rule are codified at 40 CFR 51.308(e)(4). Nonetheless, our de termination that the Trans port Rule will result in greater visibility improvement than BART is fully c onsistent with the requirem ent in 308(e)(2)(iv). In promulgating the Regional Haze Rule in 1999, the EPA e xplained that the “baseline date of the SIP” in this context means “the date of the emissions i nventories on which the SIP relies,” 64 FR 35742, which is “defined as 2002 for regional haze purposes,” 70 FR 39143. Any measure adopted after 2002 is accordingly “surplus” under 40 CFR 51.308(e)(2)(iv). Th is is consistent with the discussion in the preamble to the 1999 Regional Haze Rule indicati ng that the regional haze program “is being promulgated in a manner that facili tates integration of emission manage ment strategies for regional haze with the implementation of pr ograms for [the 1997 ozone and PM 2.5 ] NAAQS.” 64 FR 35719. The EPA took this approach in the Regional Haze Rule to allo w measures needed to attain the then new NAAQS to be “counted” as making “reasonable progress” to ward the visibility goal . The Transport Rule was adopted to help areas come into attainment with and maintain the 1997 ozone and PM NAAQS, as well as the 2006 24-hour PM 2.5 NAAQS. The EPA accordingly does not view the requirement in*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 14 of 59 308(e)(2)(iv) as limiting our ability to demonstrate th at the Transport Rule reductions are surplus, as defined in the Regional Haze Rule. 2. Effect of the Transport Rule Stay Several commenters contended that the EPA cannot rely on the Transport Rule as a BART alternative because implementation of the rule has been stayed. These commenters argue that an alternative program in place of BART must constitute a “requirement,” and be enforceable, and that as long as the Transport Rule is stay ed, it cannot qualify as a “requireme nt” nor can it be enforced. These commenters also claim that because the rule may ch ange if affirmed only in part, the EPA cannot find that the Transport Rule will make grea ter reasonable progress than BART. We do not agree that the EPA cannot rely on the Transport Rule because of the temporary stay imposed by the D.C. Circuit. We base this conc lusion on both the structure of 40 CFR 51.308(e)(4) and on the long-term focus of our anal ysis underlying today’s rule. Neither our regulations in 2005 a ddressing CAIR, nor our regulations in this rule addressing the Transport Rule, require states to participate in orimplement these programs or to otherwise include enforceable measures in their regional haze SIPs. In 2005, having determined that CAIR would provide for greater reasonable progress toward the nation al goal than would BART, the EPA promulgated regulations providing that a state participating in the one of the CAIR trading programs “need not require” EGUs to put on BART controls. Similarly, our regulations in this rule provide that a state subject to a Transport Rule FIP (or approved Transpor t Rule SIP) need not require BART controls on its EGUs. Accordingly, today’s regulatio ns addressing the Transport Rule are not “requirements” that a state participate in the interstate transpor t trading programs. Similarly, a regional haze SIP or FIP that relies on 308(e)(4) does not impose enforceable requirements on EGUs. However, a state may take advantage of this provision only if it is subject to an underlying Trans port Rule FIP (or SIP approved as meeting the requirements of the trading program). We note that the underlying Transport Rule FIP or*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 15 of 59 SIP does contain the applicable requirements that wi ll ensure that the emissions reductions from the Transport Rule will occur. We also note that while the Transport Rule is not currently enforceable, the air quality modeling analysis underlying our determination that the Tr ansport Rule will provide for greater reasonable progress than BART is based on a forward-looking projection of emissions in 2014. looks forward to
2014. This year was selected based on the anticipate d implementation of the Transport Rule, but any year up until 2018 (the end of the first regional haze planning period) would have been an acceptable basis for comparing the two program s under the Regional Haze Rule. See 40 CFR 51.308(e)(2)(iii). We anticipate that the stay of th e Transport Rule will be lifted and that the rule will be fully implemented prior to 2018. Given these consideration s , we do not view the stay imposed by the D.C. Circuit pending review of the underlying rule as under mining our conclusion that the Transpor t Rule will have a greater overall positive impact on visibility than BA RT both during the period of the first long

- term strategy for regional haze and going forward into the future. We do not agree with the comment that because the Transport Rule is subject to review by the D.C. Circuit, we cannot move ahead with our dete rmination that it provides for greater reasonable progress than BART. We do not view the stay imposed by the D.C. Circuit pending review of the underlying rule as undermining our conclusion that the Transport Ru le will have a greater overall positive impact on visibility than BART both during the period of the first long-term strategy for regional haze and going forward into the future. We recognize, as one comment er suggests, that we may be obliged to revisit the regional haze plans that rely on the Transport Rule if the rule is not upheld in its entirety. However, we do not consider it appropriate to await the outco me of the D.C. Circuit’s decision on the Transport Rule before moving forward with the regional haze program as we believe the Transport Rule has a strong legal basis, and given the judicial decree requiring the EPA to meet its*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 16 of 59 statutory obligations to have a FI P or an approved SIP meeting the Regional Haze Rule requirements in place for most states be fore the end of 2012. 3. Rationale for Disapproval of SIPs Based on CAIR We received comments that our proposed limited di sapproval of the regional haze SIPs that rely on CAIR and the proposed FIPs is not necessary. Co mmenters noted that CAIR remains in place and that SIPs that rely on CAIR are fully consistent with our existing regulations. One Some commenter s suggested that we revise the Regional Haze Rule to a llow states to rely on eith er CAIR or the Transport Rule to meet the BART requirements. While the regional haze program is a long-term pr ogram that requires states to submit SIPs every 10 years to assure continued reas onable progress toward natural background conditions, the BART requirements or alternatives to BART must be fully implemented by 2018. The required establishment of BART limits, or an altern ative to BART, is accordingly undertaken only once. a “one shot” deal. Although CAIR is currently in place as a result of the D.C. Circuit’s stay of the Transport Rule, we do not anticipate that CAIR will continue in effect in definitely. As a result, our determination that CAIR provides for greater reasonable prog ress than BART is no longer valid. This is because, as a general matter, any source required to install BART controls must maintain the BART control equipment and meet the BART emission limit established in the SIP so long as the source continues to operate. See 40 CFR 51.308(e). As BART would result in em ission reductions going forward beyond 2018, our determination that CAIR provides for greater reasonable progress than BART was based on the assumption that the reductions required by CAIR w ould be enforceable requirements that would also apply going forward to 2018 and beyond. That assumpti on is no longer appropriate. We are issuing a limited disapproval rather than a full di sapproval, however, to allow the state s to rely on the emission reductions from CAIR for so long as CAIR is in place. 4. The Relationship between a Better-than-BA RT Determination and Reasonable Progress*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 17 of 59 Each state with a Class I area is required to set goals for each Class I area that provide for reasonable progress towards improvi ng visibility. There must be one goal for the 20 percent best visibility days and one goal for the 20 percent worst vi sibility days. States take into account a number of factors in establishing reasonable prog ress targets, including in some cases an analysis of the measures needed to achieve the “uniform rate of progress” 9 over the 10-year period of the SIP and a determination of the reasonablen ess of such measures. 40 CFR 51.308(d)(1). The Regional Haze Rule does not mandate specific milestones or rates of progre ss, but instead calls for states to establish goals that provide for “reasonable progress” towa rd achieving natural background conditions.
One Several commenter s argued that our determination that the Transport Rule provides for greater reasonable progress than BART is improper because it considers BART in isolation, without reference to the consideration of the reasonabl e progress goals in the regional haze plans. The se
commenter s contend s that BART is critical to the state’s ab ility to reach its reasonable progress goals and that the EPA should have consid ered the impact of our proposed determination in instances where the states relied on emissions reduc tions consistent with presumptive BART to m eet reasonable progress goals. The EPA disagrees with the argument that we cannot compare the visibility improvements from Transport Rule against those from BART without c onsidering the reasonable progress goals of each affected regional haze SIP. BART is one measure for addressing visibility impair ment, but it is not “the mandatory vehicle of choice.” CEED, 398 F.3d at 660. As such, BART is not a required element of the regional haze SIPs so long as an appropriate alternative achieves grea ter reasonable progress. The commenter s’ ’s suggestion that reasonable progress go als are defined and that each regional haze SIP must accordingly ensure a certain rate of progress toward natural visibility also mischaracterizes the regional haze program. As no ted above, the reasonable progress goals for each

9 For each Class I area, the uniform rate of progress is based on the calculation of the steady rate of improvement in visibility needed to achieve natural background conditions by 2064.*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 18 of 59 Class I area are set by the states. St ates, both in and out of the CAIR region, set their reasonable progress goals based, in part, on anticipated reductions in emissions due to CA IR. In setting reasonable progress goals, these states estimated future emissions in 2018 from a number of sources and source categories, including emissions from EGUs. For sources in the CAIR region, states relied on emissions reductions from CAIR - not BART - to estim ate future EGU emissions. As a re sult, source-specific BART across the CAIR region is clearly not critical to the states’ ability to meet the goals in their SIPs. For the small handful of states that were not subject to CAIR but are now subject to the Transport Rule, today’s determination that the Transport Rule provides for greater reasonable progress than BART gives those states the opportunity to consider revising their regional haze SIPs to substitute participation in the Transport Rule for source-specific BART. Whether such a revision meets the requirements of the Regional Haze Rule, including the require ment that a plan include such measures as may be necessary to make reasonable progress toward the national go al, would be addressed in a notice and comment rulemaking that would provide an opportunity for re view of the adequacy of such an approach. We disagree with the commenters ’ statement, however, that source-sp ecific BART as a general matter is necessary to ensure reasonable progress. III. Technical Analysis Supporting the Determination of the Transport Rule as an Alternative to BART
A. What analysis did we rely on for our proposed determination? The technical analysis that the EPA relied on for our proposed a nd now final determination that the Transport Rule is better than BART is described in detail in the preamble of the proposed rule and in the Technical Support Document (TSD). 10 To provide context for the summary of the public comments and our responses to them, we ar e providing a summary of the tech nical analysis in the following sections.

10 Technical Support Document for Demonstration of the Transport Rule as a BART Alternative, Docket EPA-HQ-OAR-2011-0729.*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 19 of 59 1. Application of the Two-Pronged Test The two-pronged test for determining if an alternative program achie ves greater reasonable progress than source-specific BART is set out in the Regional Haze Rule at 40 CFR 51.308(e)(3). The underlying purpose of both prongs of the test is to assess whether visibility conditions at Class I areas would be better with the alte rnative program in place than they would without it. Under the first prong, visibility must not decline at a ny affected Class I area on either th e best 20 percent or the worst 20 percent days as a result of impl ementing the Transport Rule; and, unde r the second prong the 20 percent best and 20 percent worst days should be considered in determining whether the alternative program under consideration (in the case of this rulemaking, the Transport Rule ) produces greater average improvement than source-specific BA RT over all affected Class I areas. Together, these tests ensure that the alternative program provides fo r greater reasonable pr ogress than would source-specific BART. In applying the two-pronged test to the Transpor t Rule control scenario and the source-specific BART control scenario, we used a future (2014) pr ojected baseline. The 2014 ba seline does not include the Transport Rule, BART, or CAIR control programs. As described in the preamble to the proposed rule, the 2014 baseline allows a compar ison of visibility conditions as th ey are expected to be at the time of the program implementation, but in the absence of the program. This ensu res that the visibility improvement or possible degradation is due to th e programs being compared – source-specific BART and the Transport Rule alternative – and not to other extrinsic fact ors. Also, under the Regional Haze Rule any program adopted after 2002 is considered “surplus” and eligible to be counted as all or part of an alternative program in place of BART. 2. Identification of A ffected Class I Areas As described above, under the second prong of the test, the visibility comparison is over all “affected” Class I areas. The EPA ad ded the term “affected” to clarif y that visibility need not be evaluated nationwide. 71 FR 60620. We considered two approaches to identify the Class I areas*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 20 of 59 “affected” by the Transport Rule as an alternative control program to source-sp ecific BART. First, we identified 140 Class I areas represented by 96 Intera gency Monitoring of Protec ted Visual Environments

( IMPROVE) monitors in the 48 contiguous states with sufficiently complete monitoring data available to support the analysis. In the first “eastern” approach, we identified as affected Class I areas the 60 Class I areas contained in the eastern po rtion of the Transport Rule modeling domain. The second approach we considered was a “national” approach in which vi sibility impacts on 140 Class I areas across the 48 contiguous states were evaluate d (including the 60 contained with in the Transport Rule region). Consideration of this national regi on accounted for the possibility that the Transport Rule might have the effect of increasing EGU emissions in the most west ern portion of the United St ates due to shifts in electricity generation or other mark et effects. We noted that the “eastern” Transport Rule modeling grid used a horizontal resolution of 12 km (all 60 “eastern” Class I areas we re contained within the 12 km grid). The modeling grid for areas outside of the eastern Transport Rule region used a more coarse horizontal resolution of 36 km. We requested comment on whether the “affected Class I areas” shoul d be considered to be the 60 Class I areas located in the Transport Rule eastern modeling domain, the larger set of 140 Class I areas in the larger national domain, or some other set. We noted that given the modeling results, the choice between the 60 Class I areas or the 140 Class I areas did not affect our proposed conclusion that both prongs of the two-pronged test are met. 3. Control Scenarios Examined The Transport Rule requires 28 states in the east ern half of the United States to reduce EGU SO 2 and NO X emissions that cross state line s and contribute to ground-level oz one and fine particle pollution in other states. BART, on the other hand, is applicab le nationwide and covers 26 industrial categories, including EGUs, of a certain vintage. In our comp arison, we sought to determine whether the Transport Rule cap-and-trade program for EGUs will achieve greater reasonable progress than would BART for*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 21 of 59 EGUs only. Therefore, we examined two relevant control scenarios. The first control scenario examined
SO 2 and NO X emissions from all EGUs nationwide after the application of BART co ntrols to all BARTeligible EGUs (“Nationwide BART”) . In the second scenario, EGU SO 2 and NO X emissions reductions attributable to the Transport Rule were applied in the Transport Rule region and BART controls were applied to all BART-eligible EGUS outside the Transport Rule region (“Transport Rule + BART elsewhere”). For the first prong of the test, the “T ransport Rule + BART elsewhere” scenario was compared to the 2014 future year base case. The co mparison to the 2014 future year “Base Case” allows the EPA to ensure that the Transport Rule would not cause degradation in visibility from conditions predicted for the year 2014 in the absence of the Transport Rule, BART and CAIR. For both the “Nationwide BART” scenario a nd the “Transport Rule + BART elsewhere” scenario, we modeled the pres umptive EGU BART limits for SO 2 and NO X emission rates as specified in the BART Guidelines (Guidelines for BART De terminations Under the Regional Haze Rule, 70 FR 39104, July 6, 2005), unless an actual emission rate at a gi ven unit with existing controls is lower. In the latter case, we modeled the lower emission rates. Our analysis assumed that all BART-eligible EGUs were actually subject to BART requirements and thatpresumptive BART limits would be applied to 100 megawatt (MW) EGUs for SO 2 and 25 MW EGUs for NO X, regardless of the magnitude of their annual total emissions. In our analysis, in both scenarios we constrained certa in EGUs by emission limits other than presumptive limits due to a proposed or fina l regional haze SIP, a proposed or final regional haze FIP, a final consent decree, or stat e rules. Where we had evidence of more stringent emission limits than the presumptive BART limits, we used them. These units and their emission limits are detailed in the
TSD. There are five states that are subject to the Transport Rule requirement s during the ozone season only (Oklahoma, Arkansas, Louisiana, Mississippi and Florida). For thes e states, in the “Transport Rule + BART elsewhere” scen ario post-combustion NO X controls were assumed to operate outside of the*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 22 of 59 ozone season only when required to do so for a r eason other than Transport Rule requirements, e.g. , a permit condition or a provision of a consent decr ee. In the “National BART” scenario, BART NO X controls were assumed to operate year-round. 4. Emission Projections To estimate emissions expected from the scen arios described in sec tion IV, we used the Integrated Planning Model (IPM). 11 The IPM was used in this case to evaluate the emissions impacts of the described scenarios li miting the emissions of SO 2 and NO X from EGUs. The IPM projections of annual NO X and SO 2 emissions from EGUs for the “Trans port Rule + BART elsewhere” control scenario were used as inputs to the air quality model to assess the visibility impacts of the emission changes. The IPM projections were based on the stat e budgets prescribed in the final Transport Rule published on August 8, 2011, and the supplemental proposal published on July 11, 2011. 12 We noted that on October 14, 2011, the EPA issued a proposed notice that would increase NO X and SO 2 budgets for certain states in accordance with revisions to certain unit- level input data. 76 FR 63860. We requested comment on the potential e ffect of the proposed increases to state budgets. We noted that even with the proposed increases to cert ain state budgets, we believed that the two-pronged test is satisfied given the still-substantia l reductions in emissions under the Transport Rule. 5. Air Quality Modeling Results To assess the air quality metrics that are part of the two–pronged test, we used the IPM emission projections as inputs, to an air quality model to determine the impact of “Transport Rule + BART elsewhere” and “Nationwide BART” controls on visibili ty in the affected Class I areas. To project air quality impacts we used the Comprehensive Air Quality Model with Extension (CAMx) version 5.3.

11 Extensive documentation of the IPM platform may be found at http://www.epa.gov/airmarkets/pro gsregs/epa-ipm/transport.html

. 12 See Federal Implementation Plans to Reduce Intersta te Transport of Fine Particulate Matter and Ozone 76 FR 48208 (August 8, 2011). The ozone season state budgets for the states affected by the supplemental proposal published on July 11, 2001 (76 FR 40662) areincluded in the “Transport Rule + BART elsewhere” control scenario.*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 23 of 59 The air quality modeling analysis and related analyses to project visibility improvement are described in more detail in the TSD for the Transport Rule. 13 The visibility projections for each Class I area are presented in the TSD for our proposed action. We proposed that the “Transport Rule + BART el sewhere” control scenario passed the first prong of the visibility test consider ing affected Class I areas located in both the “eastern” region of 60 Class I areas) and the “national” re gion of 140 Class I areas We also proposed our determination that the “Transport Rule + BART elsewhere” alternative measure passed the second pr ong of the test that assesses whether the alternative results in greater av erage visibility improvement at affected Class I areas compared to the “Nationw ide BART” scenario. The “Transport Rule + BART elsewhere” alternative passed the second prong of the test, regardless of which way affected Class I areas are identified.
B. Summary of the EPA Responses to Comments on the Technical Analysis Many comments supported the EPA’s t echnical analysis and our dete rmination that the Transport Rule satisfies the requirements for an alternative to source-specific BART. Other commenters raised objections to the EPA’s determinatio n. Some of these were general lega l objections related to the EPA’s legal authority for its action and its interpretation of authorizing regulations and statutes. The EPA’s response to those general legal objections is discu ssed above in III.A. Other objections raised technical issues related to the EPA’s emissions and air qualit y modeling scenarios that were used to compare the results of the Transport Rule control scenario with the source-specific BART control scenario. In this section of the preamble we provide an overview of the EPA’s review of these technical comments. Our responses are discussed in detail in the Response to Comments document which is included in the docket for this rulemaking. 1. Comments Related to the Emissions S cenarios Used in the EPA’s Analysis

13 See Air Quality Modeling Final Rule Technical S upport Document, U.S. EPA, June 2011, which is found at: http://www.epa.gov/airtransport/pdfs/AQModeling.pdf

.*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 24 of 59 As noted above, the EPA developed two emissions scenarios: a 2014 “Nationwide BART” scenario and a 2014 “Transport Rule + BART else where” scenario. Nationwide emissions were substantially lower under the “Transport Rule + BA RT elsewhere” scenario. Some commenters asserted that the emissions results for thes e two scenarios were skewed in favor of the Transport Rule. These commenters asserted that the EPA underestimat ed the emissions reductions from BART, and overestimated the emission reductions from the Transport Rule. These commenters raise issues generally with the use of presump tive BART limits in the “Nationw ide BART” scenario and questioned whether the EPA correctly applied the presumptive BART limits. The EPA disagrees with commenters asserti ng that the presumptive BART limits were inappropriate for use in this analysis. While the EPA recognizes that a case-by-case BART analysis may, in some source-specific assessments, result in emission limits more stringent than the presumptive limits, these limits are reasonable and appropriate fo r use in assessing regi onal emissions reductions from the BART scenario. This has been the EPA position since 2005. 71 FR 60619 (“the presumptions represent a reasonable estimate of a stringent case BART...because...the y would be applied across the board to a wide variety of units w ith varying impacts on visibility, at power plants of varying size and distance from Class I areas”). More over, as discussed in detail in the Response to Comment document, the EPA believes that these comments overestimate the emissions reductions that would be associated with case-by-case BART because the commenters’ a ssertions of “best” technology for BART ignore other factors, including cost of c ontrol and resulting visibi lity improvement, that ar e critical components of a source-specific BART analysis. The EPA also received numerous comments concer ning specific units for which the commenters believed the BART limits for SO 2 had been incorrectly applied in IP M. Our review of these comments, which is presented in detail in the Response to Comm ents document, shows that (with minor exceptions) the EPA correctly applied these presumptive limits. After reviewing these comments and the IPM*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 25 of 59 outputs, we conclude that many of these comments stemmed from an apparent misunderstanding of the EPA’s application of the presumptive limits in IPM. Some of the unit-level comments pertained to units less than 100 MW for which the presumptive limits did not apply. Other comments pertained to units that did not meet both the 95 percent removal efficiency and the 0.15 lb/MMBtu rate. For BARTaffected units greater than or equal to 100 MW, the EPA’s IPM modeling required that they meet a SO 2 emission rate limit of 0.15 lbs/MMBtu or a removal efficiency of 95 percent. As sources are only required to comply with one of these metrics (emi ssion rate or percent rem oval), the IPM correctly determined that some BART sources could comply with an emission rate higher than 0.15 lb/MMBtu (while meeting the 95 percent FGD removal efficien cy requirement) and some could comply with a removal efficiency less than 95 percent (while meeting the emission rate requirement). The EPA also disagrees with the commenters’ a ssertion that our appli cation of presumptive limits for NO X should have provided for the installation of add-on equipment such as selective catalytic reduction (SCR). For all types of boilers other than cyclone units, the presumptive NOx limits in the EPA’s BART guidelines are based only on the use of current combustion control technology including low NO X burners, over-fire air, and co al reburning. 70 FR 39134. Finally, the EPA disagrees with commenters who expressed concer ns that the “no-CAIR” base case was inappropriate for use in th is analysis. The EPA agrees with commenters’ observation that the 2014 base case leads to emission increases relative to current emissions. However, as explained in detail in the preamble to the final Transport Rule, the EPA be lieves this is a reasonable and appropriate case to use for estimating emissions reductions that are attributable to the Tr ansport Rule, and for estimating air quality concentrations in absence of the Transport Rule. 76 FR 48223. 2. Identification of Aff ected Class I Areas Under the Regional Haze Rule, the reasonable pr ogress achieved by an alternative program in “affected Class I areas” is compared to the reasonab le progress achieved by source-specific BART. In*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 26 of 59 our proposal, the EPA requested comment on whether the “affected Class I areas” should be considered to be (1) the 60 Class I areas locate d in the Transport Rule eastern mode ling domain, (2) the larger set of 140 Class I areas, or (3) some other set. We noted th at our air quality modeling results showed that the choice between the 60 Class I areas or the 140 Class I areas did not affect our proposed conclusion that both prongs of the two-pronged test are met. Some commenters agreed that the EPA can properly rely on an assessment of the 60 Class I areas without referring to the results of the addition al 80 Class I areas. These commenters noted, as did the EPA, that because both assessment approach es support the Transport Rule as a lawful and reasonable BART alternative, the EPA may appropria tely confirm its determination based on either approach. Other commenters argued that the EPA im properly averaged across all Class I areas. These commenters argued that both the 60 Class I area region and the 140 Clas s I area region are too broad. These commenters presented information illustrating th e “Nationwide BART” scenar io to be superior to the Transport Rule alternative if th e EPA averaged visibility improvement at the 27 Class I areas west of the Mississippi River but east of the Rocky Mountains. These commente rs asserted that the EPA should not average across states, but rather should assume Transport Rule changes in one state at a time, and average the results for areas in (and nearby) that state. The EPA agrees with comments supporting our approach to iden tifying the “affected” Class I areas. The EPA agrees that in either case, the analys is shows that the two-pronged test for determining a BART alternative is satisfied. The EP A does not agree that it is necessa ry to evaluate results for a subregion such as the 27 Class I areas suggested by so me commenters. Given that the Transport Rule affects emissions and air quality over a large region, th e EPA believes it is reas onable to consider that entire region in evaluating the Class I areas that are also “affected” by this rule. The possibility of greater visibility improvement due to source-specific BART in specific Class I areas with in the region of “affected Class I areas” is inherent to the two-pro nged test that has been upheld by the D.C. Circuit*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 27 of 59 Court. As long as the average vi sibility improves over the entire region and no Class I area experiences degradation, the alternative is an appropriate and approvable alte rnative to source-specific BART. See 471 F.3d 1333 (D.C. Cir. 2006) (“UARG”) (“nothing in §169A(b)’s ‘reasonable progress’ language requires as least as much improvement in each and every individual area as BART itself would achieve”). 3. Ozone Season-Only Transport Rule States Some commenters noted that fi ve states – Arkansas, Florid a, Louisiana, Mississippi and Oklahoma – are covered by the Transport Rule ozone season only, and thus these states are only required to hold allowances and limit statewide NO X emissions during May through September. Commenters expressed concerns that while imposition of BART w ould require year-round operation of
NO X controls, under the Transport Rule there would be no assurance that NO X emission controls would operate during the remaining 7 months of the year. Accordingly, the commenters asserted that for these states the Transport Rule is not “better than BART ” because it would allow for a potential degradation during these months, and thus the EP A should consider the Transport Rule to fail the first prong of the two-pronged test. The EPA carefully considered this comment, a nd we reviewed the results of our technical analysis to evaluate whether such seasonal differe nces could occur. For programs which regulate ozone
season NO X only, seasonal differences in the emissions rate (lb/MMBtu) can be seen where a source installs post-combustion controls su ch as selective catalytic reducti on (SCR) or selective non-catalytic reduction (SNCR). Because these controls requir e the continuous use of a r eagent such as ammonia or

urea, I i t is probable that source owners would not operate the contro ls in non-ozone season months to avoid the extra cost of control . These effects are indeed seen in th e data reported to the EPA. However, where a program results in the imposition of combustion controls such as low-NO X burners and overfire air, the controls are an integral part of the operational design of the EGU. Accordingly, where*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 28 of 59 combustion controls are installed in response to an ozone season-only requirement, the EPA does not expect to see seasonal diffe rences in the lb/MMBtu NO X emission rate. Our review of the IPM predictions of how EGUs are likely to comply with the Transport Rule indicated that in the “Transport Ru le + BART elsewhere” scenario, NO X control in the five ozone season-only states is achieved predominantly by combustion controls rath er than post-combustion controls. In the Transport Rule scen ario, for four of the five states (Arkansas, Louisiana, Mississippi and Oklahoma), the EPA projects that any additional NO X controls resulting from the Transport Rule would be combustion controls only. Furthermore, as expl ained above, for the “Nationwide BART” control scenario we applied the presumptive NO X limits to all BART-eligible sources nationwide that were not already equipped with post-combustion controls. Acco rding to the EPA’s BART guidelines, for all types of boilers other than cyclone units the presumptive BART limits for NO X are based on the use of current combustion control technology. 14 70 FR 39134. For BART sources already equipped with postcombustion controls, we assumed under BART those controls would operate year-round. Therefore, the “Nationwide BART” scenario would result in genera lly uniform emission rates throughout the year in the five ozone season-only states. As a result, wi th the exception of Florid a, there is no seasonal difference in NO X emission rates between the “Transport Ru le + BART-elsewhere” scenario and the “Nationwide BART” scenario. In Florida, the one instance where IPM indicates a season-dependent difference between the two control scenarios, th ere are some EGUs with existing post-combustion controls (SCR) that the EPA project s would not operate at all unless in centivized to do so by either a source-specific BART requirement or by the Tran sport Rule, and under the Transport Rule would operate only during the ozone season. Our analysis of the two scenarios appropriately considered this seasonal difference by accounting for higher NO X emissions from those Florida units outside of the ozone season when these controls are projected not to operate in the “Transport Rule + BART

14 There are no coal-fired cyclone units located in any of the five ozone season-only states so the presumptive limits for cyclone units do not apply.*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 29 of 59 elsewhere” scenario. That is, our anal ysis assumed that post-combustion NO X controls would operate year-round under the “Nationwide BART” scenario and only during May through September in the “Transport Rule + BART elsewhere” scenario. When we analyzed the overall regional emissions reductions under the two scenarios, this did not affect our conclusi on that the two-pronged test was satisfied. This outcome is very understandable becau se over a geographic regi on this small relative decrease during part of th e year in emissions of NO X in the “Transport Rule + BART elsewhere” scenario compared to the “Nationwide BART” scen ario has much less effect than the visibility improvement attributable to the very large relative decrease in SO 2 emissions between the two scenarios. Finally, the EPA notes that in a previous rulemaking that esta blished that CAIR was “betterthan-BART” it was also the case that some states s ubject to CAIR were subj ect only to ozone-season
NO X budgets. In that rulemaking, our air quality anal ysis had similar results and our final rule established that the CAIR could be relied upon as an alternative to source-specific BART for those

states. 4. Comments Asserting that the EPA Needs to Re-do the Analysis Some commenters asserted that th e EPA could not issue a final de termination that the Transport Rule achieves greater reasonable progress than BART without conducting a new modeling analysis that would correct an error in the emi ssions for the “Nationwide BART” scen ario and that would take into account certain adjustments that the EPA made to so me state budgets under the Transport Rule after the air quality modeling runs were completed. Specifically, the commenters noted that the EPA acknowledged in the TSD for the proposal that th e emissions analysis fo r the “Nationwide BART” scenario should have, but did not, apply presum ptive BART controls on BART-eligible Gerald Gentleman Unit 2 and that the EPA acknowledged that the Transport Rule scenario in the analysis did not take into account budget revisions for a number of states that were published or proposed subsequent to the promulgation of the Transport Rule in A ugust 2011. The commenters believe that because of*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 30 of 59 these two acknowledged discrepancies in the emissions values used in the air quality modeling for the two scenarios, in combination with additional allege d errors, the EPA cannot issue a final determination unless and until a new analysis is conducted that takes these discrepancies into account. The EPA disagrees that a re-analysis of the two-pronged test using new air quality modeling is necessary. As noted in the TSD, the EPA does not be lieve that the omission of Gerald Gentleman Unit 2 from the BART-eligible inventory of 489 units would affect the average visibility improvement that serves as the basis for the determination because the emission reductions from a single EGU in the BART control scenario would not change the outcome of the air quality or visibility modeling our analysis

. 15 In terms of total emission reductions, t he “ Transport Rule + BART elsewhere ” control

scenar io results in SO 2 emission reductions that are more than 800,000 tons greater than the SO 2 emission reductions of the “Na tional BART” control scenario. The omission of roughly 12,000 tons of
SO 2 f rom Gerald Gentleman Unit 2 represents only a small percentage (about 1.5 percent) of this total reduction

. This is because Gerald Gentleman is located mo re than 300 km from the closest Class I area and the SO 2 emission reduction in ques tion (roughly 12,000 tons of SO 2 per year) repres ents a relatively small emission change from the area encompasse d by Nebraska and the surrounding six states. Our response to other alleged errors in the BART in ventory is presented in the Response to Comment document. With respect to revisions in state budgets, as we discussed in the TSD, the post-analysis increases in the state budgets under the Transport Rule had a relative ly small impact on the emissions comparison between the two scenar ios. 76 FR 8227. We note that in addition to the Transport Rule revisions we discussed in the propos ed rule, there have been subseque nt adjustments to state budgets. On February 21, 2012, based on comments received on its previous rulemaking proposal, the EPA

15 Technical Support Document for Dem onstration of the Transport Rule as a BART Alternative, Docket EPA-HQ-OAR-2011-0729. p. 10.*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 31 of 59 published revisions to 2012 and 2014 state budgets in Ar kansas, Georgia, Indiana, Kansas, Louisiana, Mississippi, Missouri, New York, Nebraska, Ohio, Oklahoma, South Carolina and Texas, along with revisions to new unit set-asides in Arkansas, Louisiana and Missouri. 77 FR 10342 and 77 FR 10350. 16 While individual state adjustments va ry, overall, the total budget increas e over the entire Transport Rule region is very small. The EPA believes it is a reasona ble expectation that these adjustments would lead to very small impacts on annual and 24-hour PM 2.5 concentrations and, as a consequence, would not have a meaningful impact on the two-pronged test satisfied by the analysis conducted for this rule. A technical analysis of these adjustments may be found in the docket (Doc ket ID No. EPA-HQ-OAR2011-0729: Sensitivity Analysis Accounting for Increase s in Texas and Georgia Transport Rule State Budgets ). After reviewing the public commen ts on the proposed rule, the EPA is finalizing its finding that the Transport Rule trading programs will provide greater progress towards regional haze goals than source-specific BART. This finding is based on the re sults of the two-pronged test for an alternative program. In this case, our analysis demonstrated that the trading programs of the Transport Rule do not cause degradation in any affected Class I area, thus passing the first prong of the test. The second prong of the test assesses whether the “T ransport Rule + BART elsewhere” scen ario results in greater average visibility improvement at affected Class I areas compared to the “Nationwide BART” scenario. The average visibility improvement of the “Transport Rule + BART elsewh ere” alternative wa s greater than “Nationwide BART” on both the 20 pe rcent best and 20 percent worst days, thus passing the second prong of the test. The determination that the Tran sport Rule trading programs will provide greater progress towards regional haze goals than source-spe cific BART applies only to EGUs in the Transport

16 Some of these Transport Rule revisions were publis hed in a final rule, wher eas others were published in a direct final rule with para llel proposal. The EPA has since received comments on the parallel proposal and will review those comments accordingl y. For the purposes of this BART rulemaking, the EPA has evaluated the potential impact of the full su ite of Transport Rule revisions as presented in both Transport Rule actions published in February 2012 to reach the conclusions presented herein.*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 32 of 59 Rule trading programs and only for pollutants covered by the programs in each state. Accordingly, we are revising 40 CFR 51.308(e)(4) by e ssentially replacing the name of the CAIR with the name of the Transport Rule. We are also finalizing our proposal that a state that chooses to meet the emissions reduction requirements of the Transport Rule by submitting a complete SIP revision that is approved as meeting the requirements of 40 CFR §§ 52.38 and/or 52.39 also need not require BART-eligible EGUs in the state to install, operate and main tain BART for the pollutants covere d by such a trading program in the

state. The results of the “Transport Rule + BART else where” control scenario analysis demonstrate that the use of NOx controls during ozone season onl y, in the states for which this Transport Rule requirement applies, results in greater visibility improvement th an source-specific BART for NOx. Thus, we are finalizing our proposal that a state in the Transport Rule region whose EGUs are subject to the requirements of the Transport Rule trading program only for ozone season NO X is allowed to rely on our determination that the Transport Rule makes gr eater reasonable progress than source-specific BART for NO X . The states to which this aspect of our final rule applies are Arkansas, Florida, Louisiana, Mississippi and Oklahoma. IV. Reasonably Attributable Visibility Impairment (RAVI)
A. What did the EPA propose ? We proposed to preserve the language in the regional haze regulations at 40 CFR 51.308(e)(4) that allows states to include in their SIPs geograp hic enhancements to the trading program to address a situation where BART is required based on RAVI at a Class I area. 17
B. Public Comments Related to RAVI

17 A geographic enhancement is a method, procedure, or process to allow a broad regional strategy, such as the Transport Rule cap-and-trade program, to satis fy BART for reasonable attributable impairment. For example, it could consist of a methodology for adju sting allowance allocations at a source which is required to install BART controls.*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 33 of 59 We received comments recommending that we exp licitly state that the Transport Rule as an alternative to BART does not replace the BART analysis that is requi red to address RAVI certification. The commenter contends that the BART determination for RAVI needs to address the impairment at the specific Class I area or areas, a requirement that is not addressed by the demonstration of regionallyaveraged visibility improvement. Other commenters agreed that RAVI BART is critical to remedying existing impairment and must be implemented. This commenter also pointed out that RAVI BART is reactive as it requires FLM to volun tarily take action to address an existing problem. As such, RAVI BART will not result in proactive permitting to avoid degradation and it cannot be relied on to prevent hot spots. Furthermore, according to this commenter, the EPA in its finding that CAIR was better-thanBART explained that even under a BART alterna tive “...CAA section 169A(b)(2)’s trigger for BART based on impairment at any Class I area remains in effect, because a source may become subject to BART based on ‘reasonably attributable visibility im pairment’ at any area” (c iting 40 C.F.R. § 51.302)). The EPA proposed to leave unchanged the ex isting regulatory language regarding geographic enhancements. The purpose of this language is to a llow a market-based system to accommodate actions taken under the RAVI provisions. The EPA first adopt ed such language in the 1999 Regional Haze Rule, 64 FR 35757, and used it again in issuing regulations addressing our determination that CAIR provides for greater reasonable progress th an BART, 70 FR 39156, and again in issuing regulations addressing trading program alternatives to BART in genera l, 71 FR 60612, 60627. In light of the fact that our proposal did not request comment on the interp lay of the RAVI requirements in 40 CFR 51.302-306 with the requirements of the Re gional Haze Rule, we are not adopti ng any clarifying interpretation at this time. We expect at a later date to clarif y the scope of the RAVI requirements through a rule amendment, general guidance, or action on a SIP or FIP in the context of a specific RAVI case. 18 Whatever the form, we intend to provide an oppor tunity for public comment before applying a new

18 A RAVI certification has been made for the Sh erbourne County Generati ng Station (Sherco) in Minnesota, by the Department of the Interior on October 21, 2009.*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 34 of 59 interpretation. We intend to consider the interpre tation favored by some commenters that even when a state is relying on the Transport Ru le trading programs to satisfy the BART requirement for its EGUs, a state is required to respond to a RAVI certification for an EGU with either a geographic enhancement or source-specific BART emission rate limits. We note that even under this interpretation it is possible that a state could reasonably conc lude, based on an analysis of the relevant factors, that no further controls are required. We also may consider more restrictive interpretations, including one in which a state would only be required to respond to a RAVI certification with either a geographic enhancement or sourcespecific BART emission rate limits if all three of the following conditions are met: (1) the RAVI certification reflects a serious adve rse impact on visibility from th e subject source compared to the impact from all other sources; 19 (2) the RAVI certification has been ma de prior to some cutoff date set to be sufficiently after the final phase-in of the Transpor t Rule to allow time for technical analysis of the visibility impacts of the subject source but not so fa r into the future as to cause extended regulatory uncertainty for sources subject to the Transport Rule ; and (3) the source in question has in fact not recently installed, nor is anticipat ed to install, any significant em ission controls under the trading program (or for any other reason) for the pollutant(s) at issue.
C. Final Action on RAVI In this final action we are preserving the la nguage in the regional ha ze regulations at 40 CFR 51.308(e)(4) that allows states to in clude in their SIPs geographic enha ncements to the trading program to accommodate a situation where BART is required based on RAVI at a Class I area. We are not adopting any clarifying in terpretation of this language at this time, but we expect at a later date to clarify

19 The EPA notes that at the time when the RAVI provision in 40 CFR 51.302( c) was first adopted, technical methods for assessing visibility impact were rudimentary compared to at present. Because of these technical limitations at the time, the impacts from a source or small group of sources had to be fairly large to be “reasonably attributable.” Now, much smaller source-specific impacts can be readily identified through the use of air quality models.*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 35 of 59 the scope of the RAVI requirements through a rule am endment, general guidance, or action on a SIP or FIP in the context of a specific RAVI case. V. Limited Disapproval of Certai n States’ Regional Haze SIPs
A. What did the EPA Propose ? We proposed a limited disapproval of the regi onal haze SIPs that have been submitted by Alabama, Florida, Georgia, Indiana, Iowa, Louisian a, Michigan, Mississippi, Missouri, North Carolina, Ohio, Pennsylvania, Sout h Carolina and Texas. As noted previously In separate notices , the EPA also has already proposed a limited disapproval of the regional haze SIP submitted by Virginia that relied on
CAIR (77 FR 3691) , and has finalized a limited disapproval of the regional haze SIPs submitted by Kentucky (77 FR 19098), Tennessee ( add FR after 4/15 signature 77 FR 24392 ), and West Virginia (77 FR 16937). These states, fully consistent with th e EPA’s regulations at the time, relied on CAIR requirements to satisfy the BART requirement and th e requirement for a long-term strategy sufficient to achieve the state-adopted r easonable progress goals. We did not propose to disapprove the reasonable progress targets for 2018 that have been set by the states in their SIPs. The reasonable progress goal s in the SIPs were set based on modeled projections of future conditions that were deve loped using the best available information at the time the analysis was done. Given the requirement in 40 CFR 51.308(d)(1)(vi) thatstates must take into account the visibility improvement that is expected to result from the implementation of other Clean Air Act requirements, states set their reasonable progres s goals based, in part, on the emi ssion reductions expected to be achieved by CAIR. As CAIR has now been remanded by the D.C. Circuit, the assumptions underlying the development of the reasonable progress target s have changed; however , because the overall EGU emission reductions from the Transport Rule are la rger than the EGU emission reductions that would have been achieved by CAIR, we expect the Transport Rule to provide similar or greater benefits than CAIR. In addition, unlike the enforceable emissions limitations and other enforceable measures in the*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 36 of 59 long-term strategy, see 64 FR 35733, reasonable progress goals are not enforceable measures. Given these considerations, we concluded not to propose disapproval of the re asonable progress goals in any of the regional haze SIPs that relied on CAIR. We noted our intent to act on the remaining elements of the SIP for each state in a separate notice.
B. Public Comments Related to on Limited Disapprovals
One Several commenter s seem s to have interpreted our st atement that the EPA was not proposing to disapprove the reasonabl e progress goals set by affected states to mean that the EPA had proposed to determine that these reasonable progress goals meet the requirements of the Regional Haze Rule. The commenter s stated that the EPA cannot reasonably conclude that th e Transport Rule achieves reasonable progress. As noted in the proposal, we intend to evaluate the reasonable progress goals for each state when taking action on the remaining elem ents of their regional haze SIPs. As explained above, we do not consider the remand of CAIR to provide a basis for di sapproving the reasonable progress goals set by the states. That determina tion, however, does not indicate that we intend to approve the targets set by the st ates without any further consider ation. In addition, while we have concluded that the Transport Rule achieves greater reasonable pr ogress than BART, we have not determined, as the commenter s suggest s , that the Transport Rule alone achieves reasonable progress towards the natural visibility goal.
C. Final Action on Limited Disapprovals This action includes a final limited disapproval of the regional haze SIPs submitted by Alabama, Georgia, Indiana, Iowa, Louisiana, Michiga n, Mississippi, Missouri, North Carolina, Ohio, Pennsylvania, South Carolina, Virginia and Texas. We are not finalizing the limited disapproval for Florida at this time because the state has requested additional time to modify its SIP to address the change in applicability of the Tr ansport Rule to Florid a in the final rule pu blished on August 8, 2011,*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 37 of 59 (76 FR 48208) and is actively preparing such a SIP revision s . 20 The EPA included Florida in the proposed Transport Rule for coverage under both the SO 2 and NOx trading programs, but removed Florida from the SO 2 trading program in the final Transpor t Rule. Florida was unaware of this modification until publication of the final rule. Th e EPA has decided to postpone action on Florida’s regional haze SIP given this extenua ting circumstance, Florida’s request for additional time to modify its SIP to address the change in coverage under the Transport Rule, and Florida’s continued progress toward submitting a SIP revision.
VI. FIPs
A. What did the EPA propose ? We proposed FIPs to replace reliance on CAIR requirements with reliance on the trading programs of the Transport Rule as an alternative to BART for SO 2 and NO X emissions from EGUs in the following states’ regional haze SIPs: Alabama, Georgia, Indiana, Iowa, Kentucky, Michigan, Missouri, North Carolina, Ohio, Pennsylvania, Sout h Carolina, Tennessee, Texas, Virginia and West Virginia. We proposed FIPs to replace reliance on CAIR requirements with re liance on the Transport Rule as an alternative to BART for NO X emissions from EGUs in the following states’ regional haze SIPs: Florida, Louisi ana and Mississippi. We proposed that these limited FIPs would satis fy the BART requirement and be a part of satisfying the requirement for a long -term strategy sufficient to achie ve the state-adopted reasonable progress goals. The FIPs would appl y only to EGUs in the affected st ates and only to pollutants covered by the Transport Rule program in those states. Th e proposed FIPs would not alter states’ reasonable progress goals or replace these goals.
B. Public Comments on Proposed FIPs

20 On May 15, 2012 the EPA proposed limited approval of three revisions to the Florida SIP, including BART determinations for five facilities.*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 38 of 59 Similar to the comments received regardi ng our proposed limited disapprovals, numerous commenters argued that the EPA s hould not finalize FIPs because, according to the commenters, we cannot rely on the Transport Rule be cause of the current stay of th at rule. Other commenters took the position that we should fully approve the regional h aze SIPs that relied on CAIR to satisfy certain regional haze requirements and that our proposed FIPs substituting the Transport Rule as an alternative to source-specific BART in regi onal haze SIPs are unnecessary. As explained above in section II.B.2, we do not agree that the EPA cannot rely on the Transport Rule because of the temporary stay imposed by the D. C. Circuit. With respect to reliance on CAIR, as explained in section II.A.3, CAIR has been re manded and only remains in place temporarily; consequently, we cannot fully approve those regiona l haze SIP revisions that have relied on the nowtemporary reductions from CAIR. Although CAIR is cu rrently in place, as a re sult of the Order by the
EME Homer City Generation court, this does not affect the earl ier court ruling remanding CAIR to the
EPA. A number of states objected to the EPA’s proposed FIP as these states did not receive a finding of failure to timely submit a regiona l haze SIP. These states requested the allowable time to revise and resubmit their SIP. Other states which also did no t receive a finding of failure to timely submit a regional haze SIP did not object to the EPA’s proposed FIP. As expl ained in section VI.C, we have responded to this comment by granting additional time to those states that prefer to revise and resubmit their SIP to the EPA for approval and did not receive a finding of failure to timely submit their regional haze SIP.
C. Final Action on FIPs In this action, the EPA is finalizing FIPs to re place reliance on CAIR with reliance on the Transport Rule as an alternative to BART in regi onal haze SIPs of Georgia, Indiana, Iowa, Kentucky, Michigan, Missouri, Ohio, Pennsylva nia, South Carolina, Tennessee, Texas, Virginia and West Virginia.*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 39 of 59 Regional haze SIPs were due in December 2007. Unde r the CAA, the EPA is required to promulgate a FIP within 2 years after finding that a state has failed to make a required submission or after disapproving a SIP in whole or in part, unless the state fi rst adopts and we have fully approved a SIP. CAA § 110(c)(1). We made a finding on January 15, 2009, that Georgia, Indiana, Michigan, Ohio, Pennsylvania, Texas , Texas and Virginia had failed to timely submit a regional haze SIP. We are finalizing the FIPs for Iowa, Missouri, South Caro lina, Tennessee and West Vi rginia, even though we are not required by the CAA to do so at this time, because of our understanding based on communications with state officials th at this action on our part is thei r preference. Our adoption of these FIPs at this time avoids the near-term need for additional administrative steps on the part of these states. That is, these states do not have to take any furt her action on their regional haze SIPs until SIP revisions are due in 2018. However, at any time, states may, and are encourag ed to, submit a revision to their regional haze SIP incorporating the requirements of th e Transport Rule. At that time, we will withdraw the FIP being finalized in this action. We are not finalizing FIPs, as propose d, for Alabama, Florida, Louisiana, Mississippi or North Carolina. Rather than a FIP, Alabama, Louisiana, Mississippi and Nort h Carolina have requested additional time to correct the defici encies in their SIPs and submit a SI P revision. As thes e states did not receive a finding of failure to submit a regional haze SIP, the EPA is not require d to promulgate a FIP at this time. The EPA will be required to issue a FIP for each state that does not submit an approvable SIP revision that corrects the deficienci es related to reliance on CAIR in time for the EPA to review and approve it within 2 years of th is final limited disapproval action. We are not finalizing a FIP, as proposed, for Texas in order to allow more time for the EPA to assess the current Texas SIP submittal. Additional time is required due to the variety and number of BART-elig ible sources and the complexity of the SIP. The EPA is also deferring action on the proposed FIP for Florida for the reasons discussed in section V.C. above.*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 40 of 59 VII. Regulatory Text
A. What did the EPA propose? Based on our finding that the “Transport Rule + BART elsewhere” control scenario passes the two-pronged test, we proposed to determine that the Transport Rule trading program will provide greater progress towards Regional Haze goals than sour ce-specific BART. We noted that the proposed determination would apply only to EGUs in the Transport Rule trading programs and only for the pollutants covered by the programs in each state. Accordingly, we proposed to revise 40 CFR 51.308(e)(4) by essentially replacing the name of CA IR with the name of the Transport Rule. We also proposed that a state that chooses to meet the emission reduction requirements of the Transport Rule by submitting a complete SIP revision substantively identical to the provisions of the EPA trading program that is approved as meeting the requirements of §5 2.38 and/or §52.39 also need not require BART-eligible EGUs in the state to inst all, operate, and maintain BART for the pollutants covered by such a trading program in the state.
B. Clarification of Final Regulatory Text A number of the states for which we proposed a FIP had previously failed to either submit a visibility SIP or had failed to submit a SIP that c ould be fully approved under the visibility regulations issued in 1980. See 45 FR 80084 (December 2, 1980). The final regul atory text takes account of this and is not intended to change the findings that have been made in the past with respect to the relevant states’ compliance with the requirements of visi bility regulations found at 40 CFR 51.302-51.307. The regulatory text also accounts fo r final limited approval of the re gional haze SIPs of Indiana, Ohio and Virginia that the EPA is finalizing separately, on or about the same day as this action. Including regulatory text that acc ounts for the final limited approval in this action avoids the need for additional overlapping revisions to the CFR for these states. To ensure that the relevant regu latory text is*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 41 of 59 appropriately revised, we are amending certain regulat ory provisions for these states in this action only. 21 We are also making conforming changes to the regulatory text for the regional haze SIPs of Kentucky, Tennessee and West Virginia as the EPA ha s previously promulgated a final limited approval and final limited disapproval of these SIPs. For Kentucky, in this action we are making conforming changes to the regulatory text in 40 CFR 52.936 (a) regarding the lim ited approval and limited disapproval of Kentucky’s SIP. These conforming change s do not affect the substance of the EPA’s final action on Kentucky on March 30, 2012 (77 FR 19098). For Tennessee, in this action we are making conforming changes to the regulatory text in 40 CFR 52.2234(a) regarding th e limited approval and limited disapproval of Tennessee’s SIP. These conformi ng changes do not affect the substance of EPA’s final action on April 24, 2012 (77 FR 24392). For West Virginia, in this action we are making conforming changes to the regulatory text in 40 CFR 52.2533(d) regarding th e limited approval and limited disapproval of West Virginia’s SIP. These c onforming changes do not affect the substance of the EPA’s final action on West Virgin ia on March 23, 2012 (77 FR 16937).

VIII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review Under Executive Order 12866 (58 FR 51735, Octobe r 4, 1993), this actio n is a "significant regulatory action” because some may view it as raisi ng novel legal or policy issu es arising out of legal mandates, the President’s priorities, or the principles set forth in th e Executive Order. Accordingly, the EPA submitted this action to the Office of Manage ment and Budget (OMB) for review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011) and any changes made in response to OMB

21 The regulatory text at issue addressing limited approvals and limited disapprovals can be found at 40 CFR 52.791(a), 40

CFR 52.1886(a), and 40 CFR 52.2452(d).*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 42 of 59 recommendations have been documente d in the docket for this action.
B. Paperwork Reduction Act This action does not impose an information co llection burden under th e provisions of the Paperwork Reduction Act , 44 U.S.C. 3501 et seq . Burden is defined at 5 CFR 1320.3(b). This action does not include or require any information collection.
C. Regulatory Flexibility Act 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 certif ies that the rule will not have a significant economic impact on a substantial number of small entities. Sma ll entities include small businesses, small organizations, a nd small governmental jurisdictions. For purposes of assessing the impacts of this rule on small entities, small entity is defined as: (1) A small business that is a small industrial entity as defined by the U.S. Small Business Administration’s (SBA) regulations at 13 CFR 121.201; (2) A governmental jurisdiction th at is a government of a city, county, town, school district, or sp ecial district with a population of less than 50,000; and (3) A small organization that is any not-for-profit enterprise wh ich is independently owne d and operated and is not dominant in its field. After considering the economic im pacts of this final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This final rule will not impose any requirements on small entities. Rather, this rule woul d allow states to avoid regulating EGUs in new ways based on the current requ irements of the Transport Rule and as such does not impose any new requirements on small entities.
D. Unfunded Mandates Reform Act*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 43 of 59 This action contains no federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, 2 U.S.C. 1531 – 1538) for state, local, or tribal governments or the private sector

. The action imposes no enforceable duty on any state, local, or tribal governments or the private sector. Therefore, this ac tion is not subject to the requireme nts of sections 202 or 205 of the
UMRA. This action is also not subject to the requirements of section 2 03 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. This action merely interprets the statutory requirements th at apply to states in preparing their SIPs.
E. Executive Order 13132: Federalism This action does not have federalism implications . It will not have subs tantial 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. This action does not impose any new mandates on state or local governments. Thus, Executive Order 13132 does not apply to this ru le. In the spirit of Executive Or der 13132 and consistent with EPA policy to promote communications between the EPA and state and local governments, the EPA specifically solicited comments on th e proposed rule from state and local officials. We received comments from seven states. These comments are addre ssed in the final action and in the Response to Comment document.
F. Executive Order 13175: Consultation and Coor dination with Indian Tribal Governments This rule does not have tribal implications , as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). The rule does not have a substantial di rect effect on one or mo re Indian tribes, since there are no BART-eligible EGU sources on tribal land s in the Transport Rule region. In addition, the CAA does not provide for the inclusion of any tribal areas as mandatory Class I federal areas; thus, tribal areas are not subject to the requirements of the Regional Haze Rule. Furthermore, this rule does*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 44 of 59 not affect the relationship or dist ribution of power and responsibiliti es between the federal government and Indian tribes. Thus, Executive Order 13175 does not apply to this action. The EPA specifically solicited additional comment on the proposed action from tribal officials and we received none.
G. Executive Order 13045: Protection of Children fr om Environmental Health and Safety Risks The EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying to those regulatory actions that con cern health or safety risks, such th at the analysis required under section 5–501 of the Order has the potential to influence the re gulation. This action is not subject to Executive Order 13045 because it does not establish an environm ental standard intended to mitigate health or safety risks

. H. Executive Order 13211: Actions Concerning Regulations That Si gnificantly Affect Energy Supply, Distribution, or Use This action is not a “significant energy actio n” as defined in Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not likely to ha ve a significant adverse effect on the supply, distribution, or use of energy. This action does not establish requirements that directly affect the general public and private sectors. Rather, this rule will al low states to avoid regulating EGUs in new ways based on the current requirements of the Transpor t Rule, and thus may avoid adverse effects that conceivably might result from such additional regulation of EGUs by states.
I. National Technology Transfer and Advancement Act Section 12(d) of the Nationa l Technology Transfer and Advancement Act of 1995 ("NTTAA"), Public Law 104-113, section 12(d), ( 15 U.S.C. 272 note) directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensu s standards are tec hnical standards (e.g. , materials specifications, test methods, sampling procedures, a nd business practices) that are developed or adopted by voluntary consensus standards bodies. The NTT AA directs the EPA to provide Congress, through*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 45 of 59 OMB, explanations when the agency decides not to use available and applicable voluntary consensus standards. This action does not involve tec hnical standards. Therefore, the EPA did not consider the use of any voluntary consensus standards.
J. Executive Order 12898: Federal Ac tions to Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order 12898 (EO) (59 FR 7629, February 16, 1994) establishes federal executive policy on environmental justice. It s main provision directs federal ag encies, to the greatest extent practicable and permitted by law, to make environmen tal justice part of their mission by identifying and addressing, as appropriate, dispropor tionately high and adverse human health or environmental effects of their programs, policies, and activities on minority popu lations and low-income populations in the United States. The EPA has concluded that it is not practicable to dete rmine whether there would be disproportionately high and advers e human health or environmenta l effects on minority and/or low income populations from this final rule. The PM 2.5 air quality improvements that might be expected under implementation of source-specif ic BART may differ from the Tr ansport Rule in terms of the emission reductions requir ed at any given source

. , especially as states have the di scretion to determine which BART

- eligible sources to control and the level of control that is feasible. However, our analysis of the Transport Rule suggests that the regional Transport Rule appr oach provides widespread health benefits especially among populat ions most vulnerable to PM 2.5 impacts. This analysis is presented in detail in the Regulatory Impact Anal ysis for the Transport Rule which is available in the Transport Rule docket EPA-HQ-OAR-2009-0491 and from the main EPA we bpage for the Transport Rule available at www.epa.gov/airtransport

. K. Congressional Review Act*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 46 of 59 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 th at before a rule may ta ke 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 Un ited States. The EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A Major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective [INSERT DATE 60 DAYS AFTER PUBLICATION IN THE FEDERAL REGISTER]

. . IX. Statutory Authority Statutory authority for this rule comes from sections 169A and 169B of the CAA (42 U.S.C. 7491 and 7492). These sections require the EPA to issue regulations that will require states to revise their SIPs to ensure that reasonable progress is made toward the national visibility goals specified in section 169A. List of Subjects 40 CFR part 51 Administrative practice and pr ocedure, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitroge n oxides, Ozone, Particulate matte r, Regional haze, Reporting and recordkeeping requireme nts, Sulfur dioxide.*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 47 of 59 Page 45 of 57 - Regional Haze: Revisions to Provisions G overning Alternatives to Source-Specific Best Available Retrofit Tec hnology (BART) Determinations, Limited SIP Disapprovals, and Federal Implementation Plans

40 CFR Part 52 Administrative practice and pr ocedure, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitroge n oxides, Ozone, Particulate matte r, Regional haze, Reporting and recordkeeping requireme nts, Sulfur dioxide.

___________________________________ Dated:

___________________________________ Lisa P. Jackson, Administrator.*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 48 of 59 For the reasons set forth in the preamble, part 51 of chapter I of title 40 of the Code of Federal Regulations is is amended as follows: PART 51 - [AMENDED] 1. The authority citation for part 51 continues to read as follows:

Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q 2. Section 51.308 is amended by revising paragraph (e)(4) (e)(3)(ii)(4) to read as follows: § 51.308 Regional haze program requirements.
***** (e) ***** (4) A State subject to a trading program established in accordance with §52.38 or §52.39 under a Transport Rule Federal Implementation Plan need not require BART-eligible fossil fuel-fired steam electric plants in the State to install, operate, and maintain BART for the pollutant covered by such trading program in the State. A State that chooses to meet the emission reduction requirements of the Transport Rule by submitting a SIP revision that establishes a trad ing program and is approved as meeting the requirements of §52.38 or §52.39 also need not require BART-eligib le fossil fuel-fired steam electric plants in the State to install, opera te, and maintain BART for the pollutant covered by such trading program in the State. A State may adopt provisions, consistent with the requirements applicable to the State for a trading program es tablished in accordance with §52.38 or §52.39 under the Transport Rule Federal Implementation Plan or established under a SIP revisi on that is approved as meeting the requirements of §52.38 or §52.39, for a geographic enhancement to the program to address the requirement under §51.302(c) related to BART for reasonably attributable impairment from the pollutant covered by such trading program in that State. For the reasons set forth in the preamb le, part 52 of chapter I of title 40 of the Code of Federal Regulations is amended as follows:*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 49 of 59 PART 52-[AMENDED]

3. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401, et seq

. Subpart B-Alabama 4. Section 52.61 is amended by revising paragraph (a) and adding a new paragraph (c) to read as follows: §52.61 Visibility protection. (a) Reasonably Attributable Visibility Impairment. The requirements of sect ion 169A of the Clean Air Act are not met because the plan does not include approvable measures for meeting the requirements of 40 CFR 51.306 for protection of visibility in mandatory Class I Federal areas.
***** (c) Regional Haze. The requirements of section 169A of the Clean Air Act are not met because the regional haze plan submitted by Alabama on July 15, 2008 , does not include fully approvable measures for meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) with respect to emissions of NOx and SO 2 from electric generati ng units. EPA has given limited approval and limited disapproval to the plan provisions addressing these requirements. Subpart L-Georgia

5. Section 52.580 is added to read as follows: §52.580 Visibility protection. (a) Regional Haze. The requirements of section 169A of the Clean Air Act are not met because the regional haze plan submitted by Georgia on February 11, 2010 , and supplemented on November 19,
2010 , does not include fully approvable measures fo r meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) with respect to emissions of NO X and SO 2 from electric generati ng units. EPA has given limited approval and limited disapproval to the plan provis ions addressing these requirements.*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 50 of 59 (b) Measures Addressing Limited Disapproval Associated with NO X . The deficiencies associated with NOx identified in EPA’s limited disapproval of the regional haze plan submitted by Georgia on February 11, 2010 , and supplemented on November 19, 2010 , are satisfied by §52.584. (c) Measures Addressing Limited Disapproval Associated with SO 2 . The deficiencies associated with
SO 2 identified in EPA’s limited disapproval of the re gional haze plan submitted by Georgia on February 11, 2010 , and supplemented on November 19, 2010 , are satisfied by §52.585. Subpart P-Indiana

6. Section 52.791 is added to read as follows: §52.791 Visibility protection.

(a) Regional Haze. The requirements of section 169A of th e Clean Air Act are not met because the regional haze plan submitted by Indiana on January 14, 2011 , and supplemented on March 10, 2011 , does not include fully approvable measures for m eeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) with respect to emissions of NO X and SO 2 from electric generating units. EPA has given limited approval and limited disapproval to the pl an provisions addressing these requirements.

(b) Measures Addressing Limited Disapproval Associated with NOx. The deficiencies associated with NOx identified in EPA’s limited disapproval of the regional haze plan submitted by Indiana on January 14, 2011 , and supplemented on March 10, 2011 , are satisfied by §52.789. (c) Measures Addressing Limited Disapproval Associated with SO 2 . The deficiencies associated with
SO 2 identified in EPA’s limited disapproval of the re gional haze plan submitted by Indiana on January 14, 2011 and supplemented on March 10, 2011 are satisfied by §52.790. Subpart Q-Iowa

7. Section 52.842 is added to read as follows: §52.842 Visibility protection.*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 51 of 59 (a) Regional Haze. The requirements of section 169A of the Clean Air Act are not met because the regional haze plan submitted by Iowa on March 25, 2008 , does not include fully approvable measures for meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) with respect to emissions of NO X and SO 2 from electric generati ng units. EPA has given limited approval and limited disapproval to the plan provisions addressing these requirements. (b) Measures Addressing Limited Disapproval Associated with NOx. The deficiencies associated with NOx identified in EPA’s limited di sapproval of the regional haze plan submitted by Iowa on March 25,
2008 , are satisfied by §52.840. (c) Measures Addressing Limited Disapproval Associated with SO 2 . The deficiencies associated with
SO 2 identified in EPA’s limited disa pproval of the regional haze plan submitted by Iowa on March 25,
2008 , are satisfied by §52.841. Subpart S-Kentucky 8. Section 52.936 is amended by revising paragraph (a) and by adding new para graphs (b) and (c) to read as follows: §52.936 Visibility protection. (a) Regional Haze . The requirements of section 169A of th e Clean Air Act are not met because the regional haze plan submitted by Kentucky on June 25, 2008 , and amended on May 28, 2010 , does not include fully approvable measures for meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) with respect to emissions of NOx and SO 2 from electric generating units. EPA has given limited approval and limited disapproval to the plan provisions addressing these requirements. (b) Measures Addressing Limited Disapproval Associated with NOx. The deficiencies associated with NOx identified in EPA’s limited disapproval of the regional haze plan submitted by Kentucky on June 25, 2008 , and amended on May 28, 2010 , are satisfied by §52.940.*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 52 of 59 (c) Measures Addressing Limited Disapproval Associated with SO 2 . The deficiencies associated with
SO 2 identified in EPA’s limited disapproval of the regional haze plan submitted by Kentucky on June 25, 2008 , and amended on May 28, 2010 , are satisfied by §52.941. Subpart T-Louisiana 9. Section 52.985 is added to read as follows: §52.985 Visibility protection.

(a) Regional Haze . The requirements of section 169A of th e Clean Air Act are not met because the regional haze plan submitted by Louisiana on June 13, 2008 , does not include fully approvable measures for meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) with respect to emissions of NOx and SO 2 from electric generati ng units. EPA has given limited approval and limited disapproval to the plan provisions addressing these requirements. Subpart X-Michigan

10. Section 52.1183 is amended by revising paragraph (a) and adding new paragraphs (d), (e), and (f) to read as follows: §52.1183 Visibility protection. (a) Reasonably Attributable Visibility Impairment . The requirements of sect ion 169A of the Clean Air Act are not met because the plan does not include approvable measures for meeting the requirements of 40 CFR 51.302, 51.305, and 51.307 for protection of visibili ty in mandatory Class I Federal areas.
***** (d) Regional Haze . The requirements of section 169A of th e Clean Air Act are not met because the regional haze plan submitted by Michigan on November 5, 2010 , does not include fully approvable measures for meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) with respect to emissions of NO X and SO 2 from electric generating units. EPA has given limited approval and limited disapproval to the plan provisions addr essing these requirements.*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 53 of 59 (e) Measures Addressing Limited Disapproval Associated with NOx. The deficiencies associated with NOx identified in EPA’s limited disapproval of th e regional haze plan submitted by Michigan on November 5, 2010 , are satisfied by §52.1186.

(f) Measures Addressing Limited Disapproval Associated with SO 2 . The deficiencies associated with
SO 2 identified in EPA’s limited disapproval of the regional haze plan submitted by Michigan on November 5, 2010 , are satisfied by §52.1187. Subpart Z-Mississippi

11. Section 52.1279 is added to read as follows: §52.1279 Visibility protection.

(a) Regional Haze. The requirements of section 169A of the Clean Air Act are not met because the regional haze plan submitted by Mississippi on September 22, 2008 , and supplemented on May 9, 2011 , does not include fully approvable measures for m eeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) with respect to emissions of NOx and SO 2 from electric generating units. EPA has given limited approval and limited disapproval to the plan provis ions addressing these requirements. Subpart AA-Missouri 12. Section 52.1339 is amended by revising paragraph (a ) and adding new paragraphs (c), (d), and (e) to read as follows: §52.1339 Visibility protection.

(a) Reasonably Attributable Visibility Impairment. The requirements of sect ion 169A of the Clean Air Act are not met because the plan does not include approvable measures for meeting the requirements of 40 CFR 51.306 for protection of visibility in mandatory Class I Federal areas.
***** (c) Regional Haze . The requirements of section 169A of th e Clean Air Act are not met because the regional haze plan submitted by Missouri on August 5, 2009 , and supplemented on January 30, 2012 ,*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 54 of 59 does not include fully approvable measures for m eeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) with respect to emissions of NOx and SO 2 from electric generating units. EPA has given limited approval and limited disapproval to the plan provis ions addressing these requirements. (d) Measures Addressing Limited Disapproval Associated with NOx. The deficiencies associated with NOx identified in EPA’s limited di sapproval of the regional haze pl an submitted by Missouri on August 5, 2009 , and supplemented on January 30, 2012 , are satisfied by §52.1326. (e) Measures Addressing Limited Disapproval Associated with SO 2 . The deficiencies associated with
SO 2 identified in EPA’s limited disa pproval of the regional haze pl an submitted by Missouri on August 5, 2009 , and supplemented on January 30, 2012 , are satisfied by §52.1327. Subpart II-North Carolina

13. Section 52.1776 is added to read as follows: §52.1177 Visibility protection. (a) Regional Haze. The requirements of section 169A of the Clean Air Act are not met because the regional haze plan submitted by North Carolina on December 17, 2007 , does not include fully approvable measures for meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) with respect to emissions of NOx and SO 2 from electric generating units. EPA has given limited approval and limited disapproval to the plan provision s addressing these requirements. Subpart KK-Ohio 14. Section 52.1886 is added to read as follows: §52.1886 Visibility protection.

(a) Regional Haze. The requirements of section 169A of the Clean Air Act are not met because the regional haze plan submitted by Ohio on March 11, 2011 , does not include fully approvable measures for meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) with respect to emissions of NOx*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 55 of 59 and SO 2 from electric generati ng units. EPA has given limited approval and limited disapproval to the plan provisions addressing these requirements.

(b) Measures Addressing Limited Disapproval Associated with NOx. The deficiencies associated with NOx identified in EPA’s limited di sapproval of the regional haze pl an submitted by Ohio on March 11,
2011 , are satisfied §52.1882. (c) Measures Addressing Limited Disapproval Associated with SO 2 . The deficiencies associated with
SO 2 identified in EPA’s limited disa pproval of the regional haze plan submitted by Ohio on March 11,
2011 , are satisfied by §52.1883 . Subpart NN-Pennsylvania 15. Section 52.2042 is added to read as follows: §52.2042 Visibility protection.

(a) Regional Haze. The requirements of section 169A of the Clean Air Act are not met because the regional haze plan submitted by Pennsylvania on December 20, 2010 , does not include fully approvable measures for meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) with respect to emissions of NOx and SO 2 from electric generating units. EPA has given limited approval and limited disapproval to the plan provisions ad dressing these requirements.

(b) Measures Addressing Limited Disapproval Associated with NOx. The deficiencies associated with NOx identified in EPA’s limited disapproval of th e regional haze plan submitted by Pennsylvania on December 20, 2010 , are satisfied §52.2040.

(c) Measures Addressing Limited Disapproval Associated with SO 2 . The deficiencies associated with
SO 2 identified in EPA’s limited disapproval of the regional haze plan submitted by Pennsylvania on December 20, 2010 , are satisfied by §52.2041. Subpart PP-South Carolina*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 56 of 59 16. Section 52.2132 is amended by revising paragraph (a) and adding new paragraphs (d), (e), and (f) to read as follows: §52.2132 Visibility protection.

(a) Reasonably Attributabl e Visibility Impairment . The requirements of sect ion 169A of the Clean Air Act are not met because the plan does not include approvable measures for meeting the requirements of 40 CFR 51.305 and 51.306 for protection of visibil ity in mandatory Class I Federal areas.
***** (d) Regional Haze . The requirements of section 169A of th e Clean Air Act are not met because the regional haze plan submitted by South Carolina on December 17, 2007 , does not include fully approvable measures for meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) with respect to emissions of NOx and SO 2 from electric generating units. EPA has given limited approval and limited disapproval to the plan provision s addressing these requirements. (e) Measures Addressing Limited Disapproval Associated with NOx. The deficiencies associated with NOx identified in EPA’s limited disapproval of the regional haze plan submitted by South Carolina on December 17, 2007 , are satisfied by §52.2140. (f) Measures Addressing Limited Disapproval Associated with SO 2 . The deficiencies associated with
SO 2 identified in EPA’s limited disapproval of the re gional haze plan submitted by South Carolina on December 17, 2007 , are satisfied by §52.2141. Subpart RR-Tennessee

17. Section 52.2234 is amended by revising paragraph (a ) and adding new paragraphs (c) and (d) to read as follows: §52.2234 Visibility protection. (a) Regional Haze . The requirements of section 169A of th e Clean Air Act are not met because the regional haze plan submitted by Tennessee on April 4, 2008 , does not include fully approvable measures*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 57 of 59 for meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) with respect to emissions of NOx and SO 2 from electric generating units . EPA has given limited approva l and limited disapproval to the plan provisions addressing these requirements.

***** * (c) Measures Addressing Limited Disapproval Associated with NOx. The deficiencies associated with NOx identified in EPA’s limited disapproval of the regional haze plan submitted by Tennessee on April 4, 2008 , are satisfied by §52.2240.

(d) Measures Addressing Limited Disapproval Associated with SO 2 . The deficiencies associated with
SO 2 identified in EPA’s limited disapproval of the re gional haze plan submitted by Tennessee on April 4, 2008 , are satisfied by §52.2241. Subpart SS-Texas

18. Section 52.2304 is amended by revising paragr aph (a) and adding new paragraphs (c) , (d), and (e) to read as follows: §52.2304 Visibility protection.

(a) Reasonably Attributable Visibility Impairment. The requirements of sect ion 169A of the Clean Air Act are not met because the plan does not include fully approvable measures for meeting the requirements of 40 CFR 51.305 for prot ection of visibility in mandato ry Class I Federal areas.
***** (c) Regional Haze . The requirements of section 169A of th e Clean Air Act are not met because the regional haze plan submitted by Texas on March 31, 2009 , does not include fully approvable measures for meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) with respect to emissions of NOx and SO 2 from electric generati ng units. EPA has given limited approval and limited disapproval to the plan provisions addressing these requirements.*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 58 of 59 ( d ) Measures Addressing Limited Disapproval Associated with NOx. The deficiencies associated with NOx identified in EPA’s limited disapproval of the regional haze plan submitted by Texas on March 31, 2009 are satisfied by §52.2283.

( e ) Measures Addressing Limited Disapproval Associated with SO 2 . The deficiencies associated with
SO 2 identified in EPA’s limited disapproval of the regional haze plan submitted by Texas on March 31, 2009 are satisfied by §52.2284. Subpart VV-Virginia 19. Section 52.2452 is amended by revising paragraph (a ) and adding new paragraphs (d), (e), and (f) to read as follows: §52.2452 Visibility protection. (a) Reasonably Attributable Visibility Impairment. The requirements of sect ion 169A of the Clean Air Act are not met because the plan does not include approvable measures for meeting the requirements of 40 CFR 51.305 and 51.306 for protection of visibil ity in mandatory Class I Federal areas.
***** (d) Regional Haze . The requirements of section 169A of th e Clean Air Act are not met because the regional haze plan submitted by Virginia on July 17, 2008, March 6, 2009, January 14, 2010, October 4, 2010, November 19, 2010, and May 6, 2011 , does not include fully approvable measures for meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) w ith respect to emissions of NOx and SO 2 from electric generating units. EPA has given limited approval and limited disapproval to the plan provisions addressing these requirements. (e) Measures Addressing Limited Disapproval Associated with NOx. The deficiencies associated with NOx identified in EPA’s limited disapproval of the regional haze plan submitted by Virginia on July 17, 2008, March 6, 2009, January 14, 2010, October 4, 2010, November 19, 2010, and May 6, 2011 , are satisfied by §52.2440.*** E.O. 12866 Review – Draft – Do Not C ite, Quote, or Release During Review*** EO12866_BTB_2060-AR-05_Final_FRN_20120418

Page 59 of 59 (f) Measures Addressing Limited Disapproval Associated with SO 2 . The deficiencies associated with
SO 2 identified in EPA’s limited disa pproval of the regional haze plan submitted by Virginia on July 17, 2008, March 6, 2009, January 14, 2010, October 4, 2010, November 19, 2010, and May 6, 2011 , are satisfied by §52.2441. Subpart XX-West Virginia 20. Section 52.2533 is amended by revising paragraph s (a) and (d) and adding new paragraphs (e) and (f) to read as follows: §52.2533 Visibility protection. (a) Reasonably Attributable Visibility Impairment. The requirements of sect ion 169A of the Clean Air Act are not met because the plan does not include approvable measures for meeting the requirements of 40 CFR 51.305, 51.306, and 51.307 for protection of visibi lity in mandatory Class I Federal areas.
***** (d) Regional Haze . The requirements of section 169A of the Clean Air Act are not met because the regional haze plan submitted by West Virginia on June 18, 2008, does not include fully approvable measures for meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) with respect to emissions of NOx and SO 2 from electric generating units. EPA has given limited approval and limited disapproval to the plan provisions ad dressing these requirements. (e) Measures Addressing Limited Disapproval Associated with NOx. The deficiencies associated with NOx identified in EPA’s limited disapproval of the regional haze plan submitted by West Virginia on June 18, 2008 , are satisfied by §52.2540. (f) Measures Addressing Limited Disapproval Associated with SO 2 . The deficiencies associated with
SO 2 identified in EPA’s limited disapproval of the re gional haze plan submitted by West Virginia on June 18, 2008 , are satisfied by §52.2541.