Internal Review Draft 5/4/2012

Page 1 of 149 

## Docket Number EPA

- HQ

- OAR

- 2011

- 0729 Regional Haze: Revisions to Provisions Governing Alternatives

to Source

- Specific Best Available Retrofit Technology (BART) Determinations, Limited SIP Disapprovals, and Federal Implementation Plans ( 76 FR 82219 ; December 30, 2011



# Response to Comments

Document

U.S. Environmental Protection Agency

Office of Air and Radiation May 2012Internal Review Draft 5/4/2012

Page 2 of 149 

### Table of Contents



## I. Introduction

................................ ................................ ...................... 5
II. General Comments in Support of the Rule

................................ ... 5

III. Support EPA’s Technical Analysis

................................ ............... 8

1. Two

- Pronged Test

................................ ................................ ................................ ............... 8

2. CAMx Output: Nitrate Concentraions

................................ ................................ ................ 10

3. Selec tion of Affected Class I Areas

................................ ................................ ................... 12

4. EPA’s Proposed Determination that Participation in CSAPR for Ozone Season NOx

Satisfies BART

................................ ................................ ................................ ..................... 13

5. Modeled Control Scenarios: BART Limits

................................ ................................ ........ 13 

## IV. General Comments Opposing EPA’s “Better than BART”

Determination

................................ ................................ ..................... 14

V. Comments Questioni ng the Legal Authority for Trading Program Alternatives to BART

................................ ......................... 17

VI. Comments Asserting that CSAPR C annot be Considered “Surplus” t o Other Requirements

................................ ..................... 19

VII. Comments Asserting that the CAA D oes N ot A llow EPA to

E xempt BART

- eligible Sources by Relying on CSAPR

.................... 20

VIII. Comments Asserting that Source

- Specific BART W ould

A chieve G reater Reasonable Progress than CSAPR

........................ 23
IX. Comments on the Relationship Between CSAPR, BART, and
O ther Requirements of R egional Haze SIPs

................................ ..... 29
XI. Deficiencies in EPA’s Technical Analysis

................................ .. 42

1. Misintrepetation of the Two

- Pronged Test

................................ ................................ ..... 42

2. Averaging Across All Class I Areas

................................ ................................ ............... 43

3. EPA’s Two Control Scenarios A re Inappropiate

................................ ............................ 46

4. Comparison of Earthjustice’s BART+CSAPR Scenario with CSAPR for Minnesota

BART U nits

................................ ................................ ................................ .......................... 48

5. EPA D id N ot Apply SO 2 Controls to Units Smaller than 100 MW

................................ . 49

6. Reliance on Presumptive BART

................................ ................................ .................... 51

7. Need for Correction of EPA Assumptions for Gerald Gentleman Unit 2

........................ 56

8. Incorrect Application of EPA’s Presumptive Limits

................................ ....................... 57Internal Review Draft 5/4/2012

Page 3 of 149 9. Averaging T imes for BART and CSAPR A re Different

................................ ................. 75

10. Errors in EPA M odels for Nitrate

................................ ................................ ................ 77

11. Ozone

- only States

................................ ................................ ................................ ....... 82

12. Use of Presumptive Limits for NOx in Arkansas W here EPA Disapproved T hose Limits

84

13. Deficiencies for NOx i n Other NOx

- only CSAPR States

................................ ............. 85

14. Need for Worst

- Case Scenarios

................................ ................................ ................... 86

15. Use of IMPROVE Monitor Location to Evaluate Visibility Impacts

............................ 86

16. Appropriateness of Emission Projections that A re Lower than CSAPR Budget

Allocations

................................ ................................ ................................ ............................ 90

17. Ne ed to Appropriately Account for Reasonably Attributable Visibility Impairment (RAVI) and Potential “Hot Spots”

................................ ................................ ......................... 91

18. Timing of Reductions, Possibility for Emissions D uring Bad Visibility Days

............ 101



## XII. Emissions Overestimated in EPA’s Base Case

....................... 102

1. Missing Mandatory Limits Reported to DOE/EIA

................................ ........................... 110

2. Need for More Current Emissions Basis for Comparison

................................ ................. 111

3. Need for Analysis of CSAPR Rule Changes

................................ ................................ .... 113 

## XIV. EPA’s Proposed Limited State Implementation Plan (SIP) Disapprovals and Proposed Federal Implementation Plan (FIP) in Light of the Stay of CSAPR by the D.C. Circuit

............................. 119

XV. States Should be G iven the O pportunity to Remedy CAIR

Dependent SIPs

................................ ................................ ................. 133

XVI. Comments Specific to Certain States

................................ ..... 134

1. Florida

................................ ................................ ................................ ............................. 134

2. Georgia

................................ ................................ ................................ ........................... 135

3. Indiana

................................ ................................ ................................ ............................ 137

4. Texas

................................ ................................ ................................ ............................... 139

5. F lorida

................................ ................................ ................................ ............................. 142

6. Ohio

................................ ................................ ................................ ................................ 142 

## XVII. Regulatory Language Addressing Reasonable Progress Goals and the Long

- Term Strategy

................................ ............................ 143

XVIII. Comments Unrelated to the Proposed Action

..................... 144Internal Review Draft 5/4/2012

Page 4 of 149 

## XIX. Comments Pertaining to the Transport Rule (Cross

- State Air Pollution Rule CSAPR))

................................ ................................ ... 145
XX. Comments Pertaining to the Proposed Consent Decree

......... 146

XXI. Regional Haze Rule Five

- Year Progress Reports

.................. 148Internal Review Draft 5/4/2012

Page 5 of 149 

### I. Introduction

The purpose of this response to comment (RTC) document is to respond to public comments

submitted to Docket ID No. EPA

- HQ

- OAR

- 2011

- 0729 by interested parties. All comments and other supporting materials can be foun d in their entirety at www.regulations.gov

.

On December 30, 2011, the United States Environmental Protection Agency (the EPA or agency) published a Federal Register Notice (76 FR 82219) entitled “Regional Haze: Re visions to Provisions Governing Alternatives to Source

- Specific Best Available Retrofit Technology (BART) Determinations, Limited SIP Disapprovals, and Federal Implementation Plans.” In this notice, the EPA requested comments on the proposed rule from the public by February 13, 2012. The public comment period was subsequently extended to February 28, 2012, as announced in the Federal Register on January 31, 2012 (77 FR 4734).

The action described the EPA’s proposal to revise the Regional Haze Rule to allow the trading programs in the Cross

- State Air Pollution Rule (CSAPR) as an alternative program to Best Available Retrofit Technology (BART) . The same action proposed to disapprove the elements of several regional haze State Implementation Plans (SIPs) that relied on the Clean Air Interstate Rule (CAIR) in a similar manner, and to promulgate Federal Implementation Plans (FIPs) relying on CSAPR to remedy some of these disapprovals. [Note: in this RTC document the name

“ Cross

- State Air Pollution Rule (CSAPR) ” a nd the name “Transport Rule” are used interchangeably and refer to the same program. 1 ]

The EPA’s proposed revisions to the Regional Haze Rule would allow the trading programs in the CSAPR as an alternative program to BART. As a result, states in the CSAPR region could substitute participation in CSAPR for source

- specific BART for EGUs in those states. We also proposed a limited disapproval of regional haze SIPs for several states that relied on CAIR to meet their regional haze goals, but are now subject to CSAPR. We proposed a Federal Implementation Plan (FIP) for each state that both relied on CAIR and received a finding of failure to timely submit a regional haze SIP. With respect to Reasonably Attributable Visibility Impairment (RAVI), we proposed to preserve the current regulatory language.



### II. General Comments in Support of the Rule

Commenter: Michael Olive, Progress Energy

Comment: Progress Ene rgy supports EPA's proposed "better

- than

- BAR T” determination for CSAPR a nd EPA's proposed determination that participation in CSAPR's ozone

- season NOx program alone

sa ti sfies BART NOx requirements for subject states, which include Florida. However, r ather than codifying that determination by replacing all references to CAIR in 40 CFR Section 51.308(e)(ii)(4) with references to CSAPR, Progress Energy urges EPA to codify both its CAIR

and CSAPR "better

- than

- BART" dete rm inations side

- by

- side. This would ensure necessary

1 Federal Implementation Plans to Reduce Interstate Transport of Fine Particulate Matter and Ozone, 76 FR 48208 (August 8, 2011).Internal Review Draft 5/4/2012

Page 6 of 149 flexibility in light of the uncertainty surrounding CAIR and CSAPR's status due to the stay and pending judicial review of CSAPR.

Commenter: Bruce W. Moore, American Electric Power (AEP)

Comment: AEP is supportive of the methodology and propos ed result to consider the incorporation of CSAPR trading program into the state SIPs to be sufficient to meet the requirements of achieving better reasonable progress toward natural visibility conditions than source specific BART.

Commenter: Duke Energy

Comment: Duke Energy supports EPA’s proposed determination that CSAPR = BART for EGUs subject to

the CSAPR.

Commenter: Stephen Cain, Arkansas Electric Cooperative Corporation (AECC)
Comment: AECC supports the decision that compliance with CSAPR is an al ternative to source

- specific BART requirements. AECC supports EPA’s determination that the CSAPR trading programs achieve greater reasonable progress towards the national goal of achieving natural visibility

conditions than source

- specific BART for sulfur dioxide and/or nitrogen oxides emissions from power plants in states covered by CSAPR. AECC believes that EPA’s determination that participation in CSAPR’s trading programs as an alternative to source

- specific BART is necessary to prevent redundancy and po ssible inconsistency of regulation between CSAPR and the Regional Haze Rule. Further, AECC believes that this regulatory streamlining is required by

Executive Order 13563.

Commenter: Michael Bradley, Clean Energy Group
Comment: The Clean Energy Group appreciates the opportunity to comment in support of EPA’s proposal to allow states to consider participation in CSAPR as equivalent to

, or better than

, BART for compliance with the Regional Haze Rule. The Clean Energy Group agrees that participation in

th e CSAPR program, including proposed budget revisions at 76 FR 63860, should be considered

as an alternative to source

- by

- source BART as long as it promotes equal or greater emission

reductions than a source

- by

- source application of BART. (The Clean Energy Group recognizes the ongoing litigation before the D.C. Circuit regarding CSAPR, and offers these comments assuming CSAPR is implemented largely as finalized, including finalization of revision at 76 FR 63860.)

Commenter: Myra C. Reese, South Carolina Department of Health and Environmental Control (DHEC)

Comment: DHEC supports the EPA's technical conclusion that CSAPR achieves greater reasonable progress in achieving the EPA's visibility goals than source

- specific BART determinations.

Commenter: Michael L. Krancer, Pennsylvania Department of Environmental Protection (PA DEP)Internal Review Draft 5/4/2012

Page 7 of 149 Comment: The DEP agrees with EPA that the NOx and S02 Transport Rule trading programs would serve as a better alternative toward achieving greater reasonable progr ess goals for visibility in federal

Class I areas than would source

- specific BART emission limitations for BART

- eligible fossil

fuel

- fired EGUs located in states covered by the Transport Rule. The DEP supports EPA's proposed amendment to allow states subje ct to the Transport Rule to substitute participation in the Transport Rule for source

- specific BART for S02 or NOx emissions from EGUs in those states. We recognize that adoption of the "Better

- than BART" final rule is dependent on the

outcome of the Trans port Rule litigation.

Commenter: Paul Bailey, American Coalition for Clean Coal Electricity (ACCCE)
Comment: ACCCE appreciates and agrees with EPA’s determination that compliance with CSAPR will be deemed to constitute compliance with BART for EGUs. ACCCE supported EPA’s 2005 determination that compliance with CAIR would be deemed to constitute compliance with EGU BART, and the Court of Appeals upheld that determination. The same policies that justified that 2005 determination support making the same deter mination for CSAPR. In fact, because CSAPR will result in faster and larger emission reductions than CAIR, it makes even more sense for CSAPR to be considered “better than BART.” And the modeling EPA performed and cited in its proposal fully supports that “better than BART” determination.

Commenter: Michael P. Halpin, Florida Department of Environmental Protection

Comment: Florida is in agreement with EPA that, like CAIR, the judicially

- stayed version of CSAPR is

indeed "better

- than

- BART" with respect to visibility improvement and that the rule would be a reasonable BART alternative in Florida with respect to NOx emissions if it were effective. However, the better approach is for EPA to keep the "CAIR is better

- than

- BART" rule in place and approve Florida' s proposed Regional Haze SIP that relies on CAIR.

Commenter: Louis P. Pocalujka, Consumers Energy

Comment: Consumers Energy supports EPA’s CSAPR=BART proposal. We believe that this determination will result in reasonable progress towards the national goal of achieving natural visibility conditions in mandatory Class I federal areas. At the same time, it will help EPA, states and affected sources with their planning efforts, reduce regulatory burdens, and reduce the cost of regulation. Such a policy is cons istent with previous Court determinations with respect to

CAIR=BART.

Commenter: John D. Kinsman, Edison Electric Institute
Comment: EEI in general supports EPA’s CSAPR=BART proposal. EEI believes EPA’s technical analysis of emissions impacts and visibilit y changes supports such an action and that this determination will help EPA, states and affected sources with their planning efforts, reduce regulatory burdens, and reduce the cost of regulation. Such a policy is consistent with previous court determinatio ns with respect to CAIR=BART.Internal Review Draft 5/4/2012

Page 8 of 149 Commenter: Mark R. Vickery, Texas Commission on Environmental Policy
Comment: Texas supports the EPA’s acknowledgement that emission reductions made by EGUs to comply with other federal requirements such as the CSAPR1 will su ffice to meet the obligation to implement BART. However, this support does not mean that Texas agrees that CSAPR is an appropriate or lawful exercise of EPA rulemaking authority.

Commenter: Utility Air Regulatory Group (UARG)

Comment: The proposed rule properly concludes that CSAPR will result in greater emission reductions than would application of source

- by

- source BART, that CSAPR would not result in visibility degradation for the 20 percent best days (or even the 20 percent worst days), and that CSAPR would result in greater visibility improvement on average than application of BART on the 20 percent worst days (and the 20 percent best days). Accordingly, as explained in EPA’s proposed rule, CSAPR plainly satisfies the BART rules’ requirements for appr oving a BART alternative.

The Utili ty Air Regulatory Group supports EPA’s proposed decision to designate CSAPR as a BART alternative and believes that EPA’s analysis, as described in the proposed rule and supported by EPA’s accompanying documentation provi des a factually and legally sound basis

for that decision.

Commenter: Cathy S. Woollums, MidAmerican Energy Holdings Company
Comment: MidAmerican agrees that the regional haze rules allow for the establishment of alternative programs as meeting BART if th e “better

- than

- BART” test can be satisfied.

Commenter: Lumiant

Comment: Luminant supports the use of regional trading programs as alternatives to installation of source

specific best available retrofit technology (“BART”) to meet the Clean Air Act’s visi bility

r equirements in section 169A, 42 U.S.C. § 7491. Luminant also agrees with EPA’s determination

t hat CSAPR would be “better than BART” and encourages EPA to finalize that determination.

EPA Response: The EPA acknowledges these comments of general support for our proposed action. The EPA thanks the commenters for their support of this rule. With respect to the comment recommending that the final rule say that both CAIR and CSAPR are better

- than

- BART, see the preamble to the final rule regarding the legal status of CAIR.



### III. Support EPA’s Technical Analysis

**1. Two**

**- Pronged Test** 

Commenter: Utility Air Regulatory Group (UARG)
Comment:Internal Review Draft 5/4/2012

Page 9 of 149 EPA notes in its Technical Support Document (“TSD”) for the proposed rule, the “better

- than

BART test does not spec ify whether each prong should apply on both best and worst days. For purposes of this analysis,... we have considered both the best days and the worst days under both

the no

- degradation prong and the overall

- improvement prong, without determining that all

sub sequent better

- than

- BART demonstrations must do so.” TSD at 41 n.31. UARG believes that resolution of this issue is unnecessary in the present rulemaking because, based on EPA’s analysis, CSAPR satisfies the better

- than

- BART test regardless of whether (a) the no degradation

and overall

- improvement prongs apply to both the best days and the worst days or (b) only the

no

- degradation prong applies to the best days and only the overall

- improvement prong applies to the worst days. EPA has consistently interprete d and applied its BART rules; however, in a way that makes clear that “reasonable progress goals are defined in terms of improvement on the

w orst 20% days, and no degradation on the 20% best days.” Id. ; see, e.g., EPA, Guidance for Setting Reasonable Progr ess Goals Under the Regional Haze Program, at page 2

- 2 (June 1, 2007) (“RPG Guidance”); EPA, Guidance for Tracking Progress Under the Regional Haze Rule, EPA

454/B

- 03

- 004, at pages 1

- 5 to 1

- 7, 1

- 11 (Sept. 2003). Thus, the most sensible interpretation of

th e provisions setting forth the BART alternative test would similarly require demonstration of improvement only for the 20% worst days and require only no degradation for the 20% best days.

Commenter: Duke Energy

Comment: EPA’s technical analysis showing that the Transport Rule + BART elsewhere passes the two

pronged visibility test for determining if an alternative prog ram achieves greater reasonable progress than source

- specific BART, [Duke Energy] strongly supports EPA’s proposed CSAPR

= BART determinat ion. Duke Energy supports and refers EPA to the comments submitted by the Utility Air Regulatory Group in response to EPA’s proposed CSAPR = BART rule.

Commenter: Michael L. Krancer, Pennsylvania Department of Environmental Protection (PA DEP)
Comment:

T he Regional Haze Rule (RHR), at 40 CPR § 51.308( e)(3), sets out the criteria that must be met in order to determine if an alternative program achieves greater reasonable progress than source

specific BART. Specifically, the RHR says that dispersion modeli ng must demonstrate the greater reasonable progress for two distinct criteria, referred to as the "two

- pronged test" by EPA, in order to assess whether visibility conditions at Class I areas would be better with the alternative program in place than they w ould be without it. The analysis the EPA performed to assess the Transport Rule under these criteria was robust, comprehensive and definitive.

The first prong of the assessment must show that the alternative program will not cause a decline in visibility at any affected Class I area. The analysis EPA performed shows that the implementation of the Transport Rule in the states covered by the Transport Rule plus the application of BART controls at all BART

- eligible EGUs outside the Transport Rule region does not cause visibility degradation at any of the 60 affected Class I areas in the eastern Transport Rule modeling domain (represented by 46 IMPROVE monitors located in 37 complete states and four partial states), and nor is visibility degradation predicted at any Class I areas in the larger national modeling domain used for the Transport Rule. Additional ly, the few instances ofInternal Review Draft 5/4/2012

Page 10 of 149 modeled predicted visibility degradation at four western U.S. Class I areas appear to be a modeling artifact due to the nitrate physics in the model for the conditions found geographically at these areas and we agree with EPA that they are not reasonable predictors of the true effects on visibility. DEP agrees with EPA's assessment that the implementation of the Transport Rule's trading programs will not result in visibility degradation at affected Class I areas.

The second prong of the assessment must show that the alternative program will result in improvements in average visibility across all affected Class I areas as compared to implementing

source

- specific BART. DEP agrees with the EPA analysis summarized in Table 3 in the

pro posed rulemaking notice that the average visibility improvement results, as measured in deciviews, for implementing the Transport Rule's trading programs would result in greater visibility improvement than would the application of source

- specific BART cont rols nationwide.

EPA Response: The EPA agrees that the Transport Rule satisfied the two

- pronged test established in the Regional Haze Rule.



### 2. CAMx Output: Nitrate Concentrations

Commenter: Utility Air Regulatory Group (UARG)

Comment: EPA’s proposed r ule discusses a modeling anomaly in the Comprehensive Air Quality Model with Extension (“CAMx”), which EPA has used in its assessment of visibility conditions under CSAPR and under nationwide BART. The Agency reports that, in the part of its analysis that projected effects in 140 Class I areas across the 48 contiguous states (including areas in f ar

western states such as Arizona and Utah), “a modeling artifact attributable to the nitrate physics in CAMx” led to a plainly implausible projection that applicat ion of both CSAPR + BART

elsewhere and Nationwide BART would result in very small

-- in fact, humanly imperceptible

-- hypothetical amounts of visibility degradation in a very few far

- western Class I areas. 76 Fed. Reg. at 82228; see id. at 82227 (reporting “predicted average degradations of 0.23, 0.23, and 0.26 deciview[]” on the 20% worst days in three Arizona areas and “a predicted degradation of 0.05 deciview[]” on the 20% best days in one Utah area). EPA properly dismisses this

anomalous result and stat es that “[a]fter considering the results of the first prong of the visibility test and examining the CAMx output in more detail ..., we are confident that no degradation in the four western Class I areas will result from implementation of the Transport Rule trading programs in the eastern U.S.”

In addition to this finding, EPA discusses “possible modifications to the software used to post

process CAMx output,” and the Agency seeks comment on an alternate methodology described in Appendix B of the TSD for th is rule that, according to EPA, “attempts to address the effects of very low nitrate concentrations on visibility results.” The information EPA has provided in this

r ulemaking is far too preliminary and limited to support a generally applicable change to a modeling methodology. EPA has not provided adequate information to enable a full evaluation of its proposed potential modeling fix and has failed even to describe the Agency’s rationale for applying this particular possible change or, for instance, the im plications it could have for modeling outside the regional haze context ( e.g. , with respect to modeling for particulate matterInternal Review Draft 5/4/2012

Page 11 of 149 ambient standards applications). Further, while this potential change may correct an anomaly in CAMx modeling outputs in this par ticular setting, it is unclear how such a change might affect other applications of CAMx. To support this suggested possible model revision on a general basis, EPA would have to provide the public with substantially more information and provide an adequate opportunity for public notice and comment on any proposed modeling change.

Commenter: Susan Schumann, Florida Electric Power Coordinating Group, Inc. (FCG)
Comment: EPA acknowledges problems with the affects of very low nitrate concentrations on its CAMx modeling visibility results and seeks comment on its approach to address this issue. See 76 Fed. Reg. 82228; TSD for Demonstration of the Transport Rule as a BART Alternative, Appendix B. However, this issue, and EPA's approach to addressing it, could hav e implications beyond this rule and CAMx modeling outputs for visibility. For example, presumably CAMx modeling outputs for particulate matter would be affected by this same problem. Because of the broader potential significance of this problem, any atte mpt to develop a generally applicable fix should be addressed in a separate rulemaking. As such, EPA should clarify in its final rule that the approach in this case is limited to the instant circumstances, is not necessarily more broadly applicable, and th at the approach on this issue in any other context will be addressed through separate rulemaking.

EPA Response: The modeling issue referenced in the proposal TSD is only known to occur when very low modeled nitrate concentrations are predicted, especia lly in areas wi th very low relative humidity. In this situation, the nitrate concentrations can increase by a large percentage due to relat ively small emissions changes. In the cases that were identified in the proposal TSD, the nitrate

concentration for a single day at Mazatzal Wilderness and Pine Mountain Wilderness increased by 6533% between the 2014 base case and the Transpor t Rule + nationwide BART case. The extremely low modeled nitrate concentrations that were found to lead to this issue r anged from

0.0003

- 0.009 ug/m3. We continue to believe that this is an isolated situation that would occur only under specific circumstances where nitrate concentrations are very l ow. This is not expected to be a problem when daily average nitrate concentrations are mu ch larger. Therefore, we would not expect this to be an issue in urban areas where nitrate may be relatively large contributor to daily and/or annual average PM2.5 concentrations.

For the final rule, EPA is continuing to use the model results as calcul ated in the proposal. We are not employing any additional “fixes” to the modeling results to account for suspect nitrate changes because we do not believe this to be an issue that a ffects numerous Class I areas. It is

also evident that this issue affects t he nationwide BART results in addition to the Transport Rule

+ BART elsewhere

. Therefore there is no reason to believe that the Transport Rule results are biased in any particular way, compared to the n ationwide BART results. We are continuing to
support t he removal of the single day of anomalous model results at the 4 Class I areas (documented in Appendix B of the proposal TSD) to show that we do not expect visibility degradation at any Class I areas due to the Transport Rule.

EPA examined all cases where the modeled nitrate at Class I areas increased by more than a factor of 2 between the 2014 base case and the 2014 Transport Rule + BART elsewhere controlInternal Review Draft 5/4/2012

Page 12 of 149 case. On all of these particular days, the 2014 base case nitrate concentration was between 0 and

0.7 5 ug/m3. This shows that large percentage nitrate increases do not occur on relatively high

modeled n itrate days. And further, on the modeled nitrate concentration days that had a large percentage increase and concentrations that were < 0.75 ug/m3 but > 0. 1 ug/m3, there was a concurrent reduction in daily average sulfate of at least 20%. A nitrate increase on these days

may occur due to “nitrate replacement”. The sulfate reduction frees up ammonia gas that would

otherwise have for med ammonium sulfate aeroso ls. The additional free ammonia reacts with nitric acid to form additional particulate nitrate. Based on these results, the model is generally responding to emissions controls as would be expected.

It should also be noted that the factor of 2 increases i n nitrate are not limited to the Transport

Rule + BART elsewhere case. The Nationwide BART case had a similar number of site

- days

with factor of 2 or more increases in nitrate at Class I areas. In the TR+BART elsewhere 36km modeling results, there were 29 5 site

- days with a factor of 2 nitrate increase. I n the Nationwide BART 36km modeling results there were 261 site

- days with a factor of 2 nitrate increase.



### 3. Selection of Affected Class I Areas

Commenter: Susan Schumann, Florida Electric Power Coordinating Group, Inc. (FCG)
Comment: While recognizing that there is no affect on EPA's ultimate determination, the FCG

- EC believes that EPA may properly rely on the 60 Class I areas in the eastern modeling domain as part of its

"better

- than

- BART" evalu ation, as opposed to the 140 Class I areas located in the national modeling domain. This approach is supported by EPA's own acknowledgment of the limitations of the national modeling domain. See 76 Fed. Reg. 82225; n.19. However, EPA should clarify

that th is rulemaking does not establish the method for determining, or ultimate determination of, which Class I areas are, or may be, "impacted" or "affected" for purposes of evaluating other specific BART alternatives per 40 CFR § 51.308(e)(3). As EPA has recogn ized, states retain discretion to appropriately make such determinations for specific proposed BART alternatives.

See 71 Fed. Reg. at 60621 ; 70 Fed. Reg. at 39138.

Commenter: Utility Air Regulatory Group (UARG)

Comment: EPA requests comment on whether the affected Class I areas assessed for purposes of the CSAPR =BART Rule should be the 60 Class I areas, the larger set of 140 Class I areas, or some other set. EPA states in the proposed rule that “given the modeling result s ..., the choice between the 60 Class I areas or the 140 Class I areas does not affect our proposed conclusion that both prongs of the two

- prong test are met.” Id . Given the nature of visibility impairment and interstate transport of visibility

- impairing po llutants, UARG does not believe that there is any appreciable risk that implementation of CSAPR would lead to degradation of visibility conditions in any Class I areas, including far

- western areas. EPA can, therefore, properly rely on an assessment of

visi bility impacts in the 60 Class I areas without referring to results in the other 80 areas. In any event, however, because either assessment approach yields the same result, and because both assessment approaches support the conclusion that CSAPR is a lawfu l and reasonable BART alternative, EPA may appropriately confirm its determination that CSAPR = BART is a proper BART alternative based on either approach.Internal Review Draft 5/4/2012

Page 13 of 149 UARG notes that the present rulemaking properly does not entail establishment of criteria for

det ermining which Class I areas are or may be “impacted” or “affected” Class I areas, within the meaning of 40 C.F.R. § 51.308(e)(3), for purposes of any analysis of possible other BART alternatives, including possible BART alternatives that states may assess or propose. As EPA has made clear in final rulemaking actions, states have discretion to make appropriate judgments regarding this matter in the context of specific proposed BARTalternatives. 71 Fed. Reg. 0612, 60621 (Oct. 13, 2006); 70 Fed. Reg. at 39138

.

EPA Response:

The EPA agrees that we could rely on either the 60 or the 140 class I areas to make the determination that the Transport Rule is a BART alternative and that this rulemaking does not necessarily establish that these are the Class I areas that would be used in evaluating other

alternatives.



### 4. EPA’s Proposed Determination that Participation in CSAPR for Ozone

**Season NOx Satisfies BART**

Commenter: Michael Olive, Progress Energy
Comment: Progress Energy supports EPA's proposed "better

- than

- BAR T” determination for CSAPR a nd EPA's proposed determination that participation in CSAPR's ozone

- season NOx program alone

sa ti sfies BART NOx requirements for subject states, which include Florida. However, r ather than codifying that determination by rep lacing all references to CAIR in 40 CFR Section 51.308(e)(ii)(4) with references to CSAPR, Progress Energy urges EPA to codify both its CAIR

and CSAPR "better

- than

- BART" dete rm inations side

- by

- side. This would ensure necessary flexibility in light of the u ncertainty surrounding CAIR and CSAPR's status due to the stay and pending judicial review of CSAPR.

Commenter: Susan Schumann, Florida Electric Power Coordinating Group, Inc. (FCG)

Comment:
The FCG

- EC generally supports EPA's determination that CSAPR sat isfies BART. And, more particularly, the FCG

- EC supports EPA's determination that participation in CSAPR' s ozone

season NOx program alone satisfies BART

- NOx requirements for subject states.

EPA Response : EPA acknowledges support for its conclusions for NOx states which are ozone season

- only in the Transport Rule. With respect to the comment recommending that the final rule say that both

CAIR and CSAPR are better

- than

- BART, see the preamble to the final ru le regarding the legal

status of CAIR.



### 5. Modeled Control Scenarios: BART Limits

Commenter: Utility Air Regulatory Group (UARG)Internal Review Draft 5/4/2012

Page 14 of 149 Comment: To evaluate emissions under application of BART, EPA modeled the presumptive BART limits for NOx and SO2 as specifie d in EPA’s BART Guidelines, “unless an actual emission rate at a given unit with existing controls is lower” than the presumptive limit

. EPA also modeled emissions under application of BART using a number of assumptions that EPA characterizes as

-

- and that UARG agrees are

-- “stringent.” The fact that, even using these very conservative

a ssumptions, EPA’s analysis shows that CSAPR + BART

- elsewhere produces greater visibility improvement than nationwide source

- by source BART, and without degrading visib ility in any Class I area, provides compelling support for EPA’s proposed determination that CSAPR will lead to greater reasonable progress than BART. The assumptions that EPA used, however, should not be viewed as making any determination or establishing any precedent as to what BART should be for any given source or as to whether any given source is BART

- eligible or is properly subject to BART or any other emission limit. EPA’s analysis in this rulemaking is appropriate for the special purpose of conducti ng a conservative, screening

- level analysis that shows that CSAPR produces greater reasonable progress than BART. That analysis of course cannot take the place of site

- specific assessments of BART

- eligibility, “cause or contribute,” and

BART emission limit determinations for individual facilities, as required by the Act and EPA’s

B ART rules, and UARG does not understand EPA’s analysis as suggesting otherwise.

Commenter: Susan Schumann, Florida Electric Power Coordinating Group, Inc. (FCG)

Comment:

EPA shou ld clarify that the unit

- specific BART limits developed to compare its "Nationwide BART" and "Transport Rule + BART

- elsewhere" scenarios have no import beyond this rulemaking. See 76 Fed. Reg. 82225. And, in particular, EPA should clarify that these BART

l imits have absolutely no bearing on the ultimate determination of actual or presumptive BART limits at any source.

EPA Response: The EPA agrees that the presumptive limits used for this analysis are not determinant for BART

limits for case

- by

- case BART determinations. Those limits could be more stringent or less stringent than the presumptive limits after a technical analysis that assesses each of the five factors required for a BART determination

.



### IV. General Comments Opposing EPA’s “Better than BART **”**

**Determination**

Commenter: Mass Comment Campaign sponsored by CREDO Action (1,109 CREDO Action Members in Kentucky)
Comment: I urge you to retain the full, existing protections for restoring clean air to national parks and

wilderness areas in the Easter n U.S. As someone who cares deeply about our national parks and wilderness areas, I ask you to abandon the proposal to substitute the Cross State Air Pollution Rule (CSAPR) trading program for these longstanding laws.Internal Review Draft 5/4/2012

Page 15 of 149 Commenter: Mass Comment Campaign spo nsored by CREDO Action (549 CREDO Action Members in Louisiana)

Comment: I urge you to retain the full, existing protections for restoring clean air to national parks and wilderness areas in the Eastern U.S. As someone who cares deeply about our national pa rks and wilderness areas, I ask you to abandon the proposal to substitute the Cross State Air Pollution Rule (CSAPR) trading program for these longstanding laws.

Commenter: Mass Comment Campaign sponsored by CREDO Action (1,569 CREDO
Action Members in Tennessee)

Comment: I urge you to retain the full, existing protections for restoring clean air to national parks and wilderness areas in the Eastern U.S. As someone who cares deeply about our national parks and wilderness areas, I ask you to abandon the p roposal to substitute the Cross State Air Pollution Rule (CSAPR) trading program for these longstanding laws.

Commenter: Mass Comment Campaign sponsored by CREDO Action (3,217 CREDO Action Members in New Jersey)

Comment: I urge you to retain the full, exi sting protections for restoring clean air to national parks and wilderness areas in the Eastern U.S. As someone who cares deeply about our national parks and wilderness areas, I ask you to abandon the proposal to substitute the Cross State Air Pollution

Ru le (CSAPR) trading program for these longstanding laws.

Commenter: Mass Comment Campaign sponsored by CREDO Action (2,872 CREDO Action Members in North Carolina)

Comment: I urge you to retain the full, existing protections for restoring clean air to nati onal parks and

w ilderness areas in the Eastern U.S. As someone who cares deeply about our national parks and wilderness areas, I ask you to abandon the proposal to substitute the Cross State Air Pollution Rule (CSAPR) trading program for these longstanding laws.

Commenter: Lon Burnam, District 90, Texas House of Representatives
Comment: I urge the EPA to strengthen its proposal for regional haze, Docket # EPA

- HQ

- OAR

- 2011

- 0729.

I care about our iconic open spaces and want them protected from haze pollution which both obscures the spectacular views but also makes the air unsafe to breathe. I ask you to abandon the

p ollution trading program for the Cross

- State Air Pollution Rule (CSAPR), which was presented as an alternative to determining Best Available Retro fit Technology (BART). This trading program will allow the oldest and dirtiest coal plants, from which our parks and wilderness areas suffer the most, to continue operating without implementing modem pollution controls. EP A's proposal allows pollution tra ding and would not provide the same level of assurances and protections for our treasured public lands. Both CSAPR and the Regional Haze Rule are necessary; CSAPR should not take the place of the Regional Haze Rule. I specifically request that you abandon the December 23rd action, which allows the CSAPR to serve as an alternative to determining source

- by

- source BART.Internal Review Draft 5/4/2012

Page 16 of 149 Commenter: Ken Kramer, Lone Star Chapter, Sierra Club

Comment: The Lone Star Chapter writes with concerns related to EPA's December 23rd acti on to allow the

Cross

- State Air Pollution Rule ("CSAPR") to serve as an alternative to determining source

- by

source Best Available Retrofit Technology ("BART"). The Texas Commission on Environmental Quality (TCEQ) has already exempted all of the polluting sources in Texas from complying with the BART program. Therefore, we look to the EPA as the responsible party to implement the Clean Air Act's regional haze rules in Texas. The proposed alternative to BART would allow some of the largest sources of sulfur dioxide pollution in Texas to escape the requirements of BART and instead purchase emissions allowances from states as far away as Minnesota and South Carolina. These distant emissions reductions in other states, rather than Texas, may not protect Big Bend or Guadalupe Mountains as intended by the Rule. EPA's proposal to permit states to rely on emissions reductions made under CSAPR to satisfy their obligations under BART to protect Class I air quality is flawed and will not adequately achieve the goals of the Rule.

Commenter: Mass Comment Campaign Sponsored by Care2 (There were 5,208 individual commenters who submitted essentially the same comment as follows.)
Comment: I urge you to retain the full, existing protections for restoring clean air to national parks and

wilderness areas in the eastern U.S. As someone who cares deeply about our national parks, I ask you to abandon the proposal to substitute the Cross State Air Pollution Rule (CSAPR) trading

progr am for these longstanding laws. Many parks and wil d lands

-- especially in the east

-- would suffer as a result. Specifically, I support the continued use of the Regional Haze Rule to clean up the oldest and dirtiest sources of pollution and haze that impact our nation's treasured national parks and wilde rness areas. I oppose EPA's current proposal to exempt park polluting coal plants in the eastern states from the best, widely available pollution controls. EPA's proposal allows pollution trading and would not provide the same level of assurances and prote ctions f or our treasured public lands. Both CSAPR and the Regional Haze Rule are necessary; CSAPR should not take the place of the Regional Haze Rule.

Commenter: Kathryn M. Amirpashaie/Sierra Club
Comment: EPA’s position that CSAPR is “better than BART” is flawed; CSAPR is not better than BART and will not achieve greater reasonable progress to natural visibility conditions in these states than BART. Therefore, CSAPR cannot serve as an alternative to BART under the RHR. Therefore, EPA’s proposed partial FIPs as to Alabama, Mississippi, North Carolina, and South Carolina must be abandoned. Sierra Club does agree with EPA’s partial disapproval of Alabama, Mississippi, North Carolina, and South Carolina’s SIPs due to their reliance on CAIR as the

BART

- altern ative. For many of the same reasons that CSAPR is an inappropriate BART

alternative, CAIR is also an inappropriate alternative.

Commenter: National Parks Conservation Association on behalf of numerous organizations
Comment:Internal Review Draft 5/4/2012

Page 17 of 149 Cleaning up the Haze: Protecting People and America’s Treasured Places Synopsis: This report calls on EPA to drop its proposed BART rule in order to fully protect iconic and natural places from unhealthy and unsightly air. According to this report, EPA’s proposed rule would all ow nearly 150 coal plant units to avoid installing widely available and cost effective pollution controls and would exempt these plants from having to achieve emission rates routinely required at coal plants nationwide.

The report recommends that EPA:

1. Ensure that clean

- up plans for polluters will result in air quality improvements at Class I areas. CSAPR does not require that the best available retrofit technology is installed or operated at

coal

- fired power plants that impair air quality at national parks and wilderness areas. EPA must make certain that adequate emission reductions occur at pollution sources that actually affect Class I areas in order to fully meet the stated requirements and goals of the BART program.

2. Accurately account for the emission reductions possible under the BART program. In assuming that CSAPR would achieve better results than BART, EPA significantly underestimates the amount of pollution that would actually be reduced through the installation and operation of the best a vailable retrofit technology. EPA must be consistent in its evaluation and analyze every power plant impairing air quality at a Class I area for adequate best available retrofit technology controls. EPA must then revisit its conclusion that CSAPR is better than BART across the eastern half of the U.S in light of such a revised analysis.

The report lists 12 coal

- fired power plants in the CSAPR region that the commenters maintain will “escape urgently needed pollution control requirements” if EPA does not ab andon its proposal. Details of these examples may be found in Docket

---

EPA Response:

[placeholder]



### V. Comments Questioning the Legal Authority for Trading Program

**Alternatives to BART**

Commenter: Earthjustice on behalf of a number of organizations
Comment:

T here is no statutory authority for EPA to authorize reliance on CSAPR in place of BART as it has proposed to do here. EPA relies on two court decisions as authority for its proposal: Center for Energy & Economic Dev. v. EPA, 398 F.3d 653 (D.C. C ir. 2005) ( CEED) and Utility Air Regulatory Group v. EPA, 471 F.3 d 1333, 1340 (D.C. Cir. 2006) ( UARG). However, the force of such holdings has been undermined by subsequent D.C. Circuit decisions. In North Carolina v. EPA, 531 F.3d 896, 906

- 08 (D.C. Cir. 2 008), the Court invalidated the CAIR trading program

because it failed to conform with the u nderlying statutory mandate to measure each state’s significant contribution to specific downwind nonattainment areas and eliminate them in an

isolated state

- by

- sta te manner. Id. at 907. Likewise here, EPA‘s BART substitution proposal fails to conform with the Act‘s express mandate that EPA rules require haze plans to include BART atInternal Review Draft 5/4/2012

Page 18 of 149 each BART eligible source for the purpose of eliminating or reducing visibility impa irment

caused or co ntributed to by that source in any Class I area. See CAA § 169A(b)(2)(A), 42 U.S.C. § 7491(b)(2)(A). In NRDC v. EPA, 571 F.3d 1245, 1255

- 58 (D.C. Cir. 2009), the Court rejected an EPA attempt to substitute an emissions trading program fo r the Clean Air Act‘s express mandate for reasonably available control technology ( RACT) at existing sources in ozone nonattainment areas. EPA claimed its substitution should be allowed because the trading program was estimated to achieve a beyond

- RACT deg ree of control regionally, and would better serve statutory purposes, but the Court said the region

- wide approach did not meet the statutory requirement that the reductions be from sources in the nonattainment area. Id. at 1256. Likewise, EPA‘s region

- wide approach here flo uts the statutory mandate that “ each BART eligible source causing or contributi ng to visibility impairment in” any Class I area must install BART to prevent or reduce such impairment.

More broadly, other decisions post

- dating CEED and UARG have emphasized that the terms

each and any must be given their literal, expansive meanings when used in the Act. See

Massachusetts v. EPA , 549 U.S. 497, 528

- 29 (2007) (repeated use of the word ‘ any ’ in Clean Air Act provision demonstrat ed that statutory language was sweeping in its protective reach); Sierra Club v. EPA, 536 F .3d 673, 678 (D.C. Cir. 2008) ( If Congress meant that potentially thousands of permits could be issued without adequate monitori ng requirements, then it would not have said [e]ach permit ... shall set forth ... monitoring ... requirements to assure compliance with the permit terms and conditions. There can be no doubt about the plain meaning of this phrase.

‘Each’ means [e]very o ne of a group considered individually. (internal quotations and citations omitted)); New York v. EPA, 443 F.3d 880, 886 (D.C. Cir. 2006) (holdin g that there is “no reason why ‘any‘ should not mean ‘ any‘); New Jersey v. EPA, 517 F.3d 574, 582 (D.C. Cir.

200 8) (affirming that “ [i]n th e context of the CAA, the word ‘any’ has an expansive meaning) (internal quotations omitted)); NRDC v. EPA, 489 F.3d 1 250, 1257

- 58 (D.C. Cir. 2007) ( [a]pplying the usual meaning of ‘any’ under Chevron step one).

For all the for egoing reaso ns, EPA’s proposal to substitute CSAPR for BART violates the plain language of the Act. If CEED and UARG could be read as authorizing such substitution, those decisions would be in conflict with the plain language of the Act, and therefore in e rror. The Act

does not allow EPA‘s rules to waive the statutory mandate for BART at “ each ” BART

- eligible source based on a claim that other control methods will achieve greater reasonable progress on average. See also CAA § 169A(a)(4), 42 U.S.C. § 7491(a)( 4) (requirin g EPA‘s haze rules to assure (A) reasonable progress...., and (B) compliance with the requirements of this section, requirements that include BART as a separa te mandate (emphasis added)).

[ FN 17] The CEED opinion erroneously states that the ad dition of § 169B in 1990 “clarified that the focus of the Act was to achieve “actual progress an improvement in visibility,” 42 U.S.C. § 7492(b), not to anoint BART the mandatory vehicle of choice. 398 F.3d at 660. This assertion reads far more into § 169B (b) than the language of that subsection can possibly bear, as the provision merely directs EPA to assess and report to Congress the actual progress and improvement in visibility in Class I areas. It does not amend or limit the Act‘s pre

- existing BART
mand ate, much less suggest that progress goals can supplant that mandate. Indeed, elsewhere in § 169B, Congress reinforced the BART mandate by directing EPA to “carry out the Administrator‘s regulatory responsibilities under section 7491 of this title,” the se ction that includes the BART mandate. 42 U.S.C. § 7492(e)(1). Likewise, there is nothing in § 169B‘s authorization of visibility transport regions and commissions to suggest authority to waive the BART mandate, as CEED erroneously implies.Internal Review Draft 5/4/2012

Page 19 of 149 EPA Response: [placeholder]



### VI. Comments Asserting that CSAPR Cannot be Considered “Surplus” to **Other Requirements**

Commenter: Earthjustice on behalf of a number of organizations

Comment: Governing regulations require that BART alternatives provide emission reductions surplus to those resulting from programs implemented to meet other requirements of the Clean Air Act. See 40 C.F.R. § 51.308(e)(2)(iv). CSAPR, as a program implemented to meet § 110 of the Clean Air Act, cannot satisfy this requirement.

EPA Cannot Demonstrate That CSAPR Yields Surplus Emissions Reductions

EPA’ s reliance on CSAPR also fails at the outset because CSAPR cannot supply emission reductions for purposes of the regional haze program that are additive to what other programs o f the Clean Air Act already require. Under 40 C.F.R. § 51.308(e)(2)(iv), a state that seeks to use an alternative program in lieu of BART must demonstrate not only that the alternative achieves greater reasonable progress toward reaching natural visibility conditions at Class I areas but also that the emission reductions resulting from the emissions trading program or other alternative measure will be surplus to those reductions resulting from measures adopted to meet requirements of the CAA as of the basel ine date of the SIP. EPA cannot make this showing when adopting CSAPR FIPs or promulgating a regulation allowing states to adopt SIPs that rely on

CSAPR in lieu of BART. CSAPR was adopted prior to EPA’ s issuance of this better

- than

- BART proposal, and it is slated to achieve emissions reductions in 2012, well in advance of the 2014 baseline date for the proposed FIPs and in advance of any SIPs that may seek to rely on CSAPR as an alternative to BART. Moreover, under Sections 110(a)(1) and (a)(2)(D)(i) of the Act, states were required to adopt SIPs by the year 2000

- 3 years after promulgation of the 1997 ozone and PM NAAQS

- to prohibit emissions from within the state from contributing significantly to nonattainment or interference with maintenance by any oth er state with respect to such NAAQS. Thus, any emission reductions that were required to meet that mandate cannot be cred ited toward

the calculation of greater reasonable progress attributed to CSAPR. Because CSAPR cannot possibly satisfy the surplus emiss ions requirement of § 51.308(e)(2)(iv), EPA‘s proposal is necessarily inconsistent with its own governing regulations

.

Commenter: Kristin A. Henry, Sierra Club
Comment: Governing regulations require that BART alternatives provide emission reductions surpl us to those resulting from programs implemented to meet other requirements of the Clean Air Act. See 40 C.F.R. § 51.308(e)(2)(iv). It is not clear that CSAPR in Indiana can satisfy this requirement.

EPA’s regional haze regulations require that “the emissi on reductions resulting from the emissions trading program or other alternative measure [employed in place of BART] will beInternal Review Draft 5/4/2012

Page 20 of 149 surplus to those reductions resulting from measures adopted to meet requirements of the CAA as

of the baseline date of the SIP.” 40 C.F.R. 51.308(e)(2)(iv). That is not the case with CSAPR.

Most of the reductions required by CSAPR are also required by the Clean Air Act’s New Source Review program, Title V program, and various nonattainment and maintenance SIPs. Namely, under § 110(a)(1 ) & (a)(2)(D)(i) of the CAA, states were required to adopt SIPs by the year

2000

— 3 years after promulgation of the 1997 ozone and PM NAAQS

— to prohibit emissions from within the state from contributing significantly to nonattainment or interference with

mai ntenance by any other state with respect to such NAAQS. CSAPR was promulgated to meet this requirement. Therefore, CSAPR, as a program adopted prior to EPA’s issuance of this

better

- than

- BART proposal and implemented to meet § 110 of the Clean Air Act, can never satisfy this surplus requirement.

As a result, EPA’s analysis precludes a fair comparison between application of BART and sole reliance on CSAPR instead. In comparing the visibility impacts attributable to CSAPR and BART respectively, EPA modeled a n artificial BART scenario in which nationwide BART would apply without CSAPR. CSAPR is independently required by Section 110 of the Clean Air Act and will apply in any case (assuming it withstands legal challenge), it is incumbent on EPA

to evaluate what BART would add to CSAPR in the way of emission reductions that could contribute to reasonable progress. Indeed, emission reductions resulting from CSAPR were

meant to be “in addition to” the reductions from application of BART under the Haze Rule, not

“rat her than”

— which is what EPA’s CSAPR “better

- than

- BART” effectively makes them. EPA’s proposal essentially nullifies the Haze Rule in those states to which CSAPR applies

— instead of reductions in those states from both CSAPR and BART, they only have CSAPR

re ductions. In all likelihood, the improvement necessary to achieve the CAA’s visibility goal of preventing any future, and remedying any existing, visibility impairment in Class I areas will require BART controls, plus controls on additional EGUs such as re quired under CSAPR (or CAIR).

Ultimately, EPA has improperly linked CSAPR to the Haze Rule by determining that certain CSAPR program provisions can in effect substitute for related but different visibility requirements under the Haze Rule (e.g., BART requirements). This is inappropriate, especially considering the purpose and scope of these two rules. Namely, CSAPR focuses on regional reductions in pollutants to reduce health risks, whereas the Haze Rule focuses on localized

reduction in pollutants to reduce visibility impairments in specific areas. Compare 76 Fed. Reg. 48208 (Aug. 8, 2011), with 42 U.S.C. § 7491(a)(1). As a result, the reductions mandated by

CSAPR

— which EPA now proposes to adopt in order to achieve the goal of the Haze Rule

— were made with regional reductions of pollutants in mind, not Class I area

- specific reductions.

EPA Response: Please see section II.B.1 of the preamble for EPA’s response to the comments that the Transport Rule emission reductions are not “surplus” as defined by the Regional Haze Rule.



### VII. Comments Asserting that the CAA Does Not Allow EPA to Exempt

**BART**

**- eligib**  **le Sources by Relying on CSAPR**Internal Review Draft 5/4/2012

Page 21 of 149 Commenter: Earthjustice/Texas
Comment: The Text of the Clean Air Act Precludes EPA from Relying on CSAPR as a BART

- Alternative

in the Texas Partial FIP As detailed more fully in Earthjustice’s accompanying comment letter on the overarching flaws of EPA’s proposed rule, EPA cannot rely on CSAPR as an alternative to BART. The plain language of the Clean Air Act states that regional haze plans must “contain such emission limits, schedules of compliance and other measures as may be necessary to make reasonable p rogress toward meeting the national [visibility] goal . . . including [BART controls on sources subject to BART].” 42 U.S.C. § 7491(b)(2)(A). The Act explicitly states that three conditions must be

satisfied before a BART

- eligible EGU may be exempted from BART: (1) EPA must determine, after notice and opportunity for public hearing, that the EGU does not “by itself or in

c ombination with other sources” cause or contribute to significant visibility impairment at a

Class I a rea; (2) if the power plant has a design capacity of 750 megawatts or greater, the owner or operator must demonstrate to EPA that the plant is located at such a distance from all Class I areas that it does not “by itself or in combination with other source s” emit pollution that may reasonably be anticipated to cause or contribute to significant visibility impairment at a Class I area; and (3) the affected Federal Land Managers must concur with the BART exemption. Id. § 7491(c).

CSAPR does not meet the stat utory criteria for a BART exemption. EPA has not shown that, with CSAPR, no Texas BART

- eligible EGU, by itself or in combination with other sources, will cause or contribute to visibility impairment at Big Bend, Guadalupe Mountains, or Class I areas in other states. Instead, as discussed below, modeling shows that BART

- eligible EGUs in Texas likely will cause visibility impairment at multiple Class I areas even under CSAPR. See infra at 18

– 22. Consequently, EPA could not possibly make the requisite showi ng to exempt
BART

- eligible EGUs in Texas from BART requirements. Moreover, the Federal Land Managers at Big Bend, Guadalupe Mountains, and other Class I areas have not concurred with EPA’s proposed BART exemption for Texas’s BART

- eligible EGUs. To the cont rary, the only FLM responses to the national rulemaking have been critiques about the program’s shortcomings, including its inability to protect Class I areas against pollution hotspots. See infra

at 18

– 19 (discussing National Park Service comments). As a result, there is no statutory authority for EPA to exempt BART

- eligible EGUs in Texas from BART by relying on CSAPR. EPA’s interpretation of the statute, in which it adopted CSAPR as a BART

- alternative in a partial FIP for Texas, cannot be reconciled with Congress specifying very narrow standards for exempting a single source from BART.

Commenter: Earthjustice on behalf of a number of organizations

Comment: For the reasons explained below, EPA cannot exempt states from evaluating and applying

source

- spec ific BART consistent with the Clean Air Act. The plain language of the Act requires installation and operation of BART to achieve reasonable progress toward meeting the national goal of eliminating visibility impairment at Class I areas. See Clean Air Act ( CAA) §

169A (b)(2)(A), 42 U.S.C. § 7491 (b)(2)(A).Internal Review Draft 5/4/2012

Page 22 of 149 The Plain Language of t he Cl ean Air Act Precludes Reliance o n C SAPR to Exempt Sources

from BART EPA cannot consistent with the plain language of the Clean Air Act authorize states to rely on

CSAPR to o pt out of BART. Nor can EPA satisfy its FIP obligations (as proposed at 76 Fed. Reg. at 82221) by promulgating a FIP that substitutes CSAPR for BART in each state where a haze FIP is required. Under the Clean Air Act, BART is a mandatory measure that must be implemented to achieve reasonable progress toward restoration of natural visibility conditions. Section 169A(b)(2)(A) expressly requires states to adopt SIPs that “ contain such emission limits, schedules of compliance and other measures as may be necess ary to make reasonable progress toward meeting the national goal . . . including installation and operation of BART at each

BART

- eligible source that emits any air pollutant which may reasonably be anticipated to cause

or contribute to any impairment of v isibility in any Class I area. ” See CAA § 169A(b)(2)(A), 42 U.S.C. § 7491(b)(2)(A) (emphasis added). The only permissible exemption from BART is expressly set forth in § 169A(c). See CAA § 169A(c), 42 U.S.C. § 7491(c). Under § 169A(c), a source can be exempt from BART only if EPA, by rule promulgated with sufficient notice and opportunity for public comment, determines that the source does not either by itself or in

combination with ot her sources “ emit any air pollutant which may reasonably be anticipated to cause or contribute to a significant impairment of visibility in any mandatory class I federal area. CAA § 169A(c)(1), 42 U.S.C. § 7491(c)(1). Further, EPA cannot exempt a fossil

- fu el fired power plant with a design capacity of 750 megawatts or more, unless the owner or operator of the plant can demonstrate that the power plant is located far enough away from the class I areas

and does not or will not by itself or in conjunction with other facilities cause or contribute to visibility impairment. CAA § 169A(c)(2), 42 U.S.C. § 7491(c)(2). Finally, the appropriate Federal Land Manager or Managers must agree with the exemption before it can go into effect. CAA § 169A(c)(3), 42 U.S.C. § 74 91(c)(3).

Thus, EPA‘s authority to exempt sources from BART is very narrowly defined. Nowhere in Section 169A did Congress contemplate or sanction alternative programs that would operate in

lieu of BART. “ Where Congress explicitly enumerates certain excep tions to a general

p rohibition; additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent. ” Andrus v. Glover Constr. Co., 446 U.S. 608, 616

– 17 (1980); see also TRW Inc. v. Andrews, 534 U.S. 19, 28 (2001) (quot in g same). This follows from the

- cardinal principle of statutory construction that

- a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant. TRW, 534 U.S . at 31. Neither EPA nor the Courts can read the Clean Air Act in s uch a way that

would render an

- express exception . . . insignificant, if not wholly superfluous. Duncan v. Walker, 533 U.S. 167, 174 (2001).

Commenter: National Parks Conservation Associ ation on behalf of a number of organizations

Comment: As we explain in the national comments, the regulatory language establishing BART alternative programs is an impermissible construct of the Clean Air Act’s BART exemption. But for the sake of argument, if the regulations were legitimate, EPA’s proposed partial FIP for Georgia relying on CSAPR to absolve BART sources from adequate BART limits does not meet the regulatory criteria for an alternative BART program. The Regional Haze Rule states that aInternal Review Draft 5/4/2012

Page 23 of 149 BART

- a lternative program “must achieve greater reasonable progress than would be achieved through the installation and operation of BART at all sources subject to BART in the State and covered by the alternative program.” 40 C.F.R. § 51.308(e)(2). In order for a trading program such as CSAPR to be “better than BART,” dispersion modeling must demonstrate that (1) visibility under the BART

- alternative would not decline in any Class I area, and (2) the BART

alternative would result in overall visibility improvement “by comparing the average differences

between BART and the alternative over all affected Class I areas.” Id. § 51.308(e)(3).

EPA Response: [placeholder]



### VIII. Comments Asserting that Source

**- Specific BART Would Achieve**  **Greater Reasonable Progress than CSAPR** 

Commenter: William O’Sullivan, New Jersey Division of Air Quality
Comment: The State of New Jersey does not support the proposed rule. Based on the cumulative assessment

of all BART

- eligible sources in the Mid

- Atlantic Northeast Visibility Union (MA NE

- VU) region, all member states with BART

- eligible facilities contribute to visibility impairment at Class I areas. As a member state, the State of New Jersey followed the subsequent MANE

- VU Board decision that any source that meets the BART eligibility requirements should be subject to
a top

- down BART determination. The USEPA approved the State of New Jersey's Regional Haze State Implementation Plan revision, including BART determinations, reasonable progress goals, and sulfur in fuels rule, effective Fe bruary 2, 2012. Coal

- fired electric generating units (EGUs) that do not have add

- on air pollution contro ls are very high emitters of NO x and S02 which contribute to the formation of regional haze, and BART

- eligible EGUs should be subject

to BART. At a mini mum, any coal

- fired EGU greater than 25 megawatt (MW) in size should be required to meet the presumptive limits outlined in the as outlined in Appendix Y to Part 51

- Guidelines for BART Determinations under the Regional Haze Rule.

To allow CSAPR as an alte rnative to BART within the eastern half of the United States would diminish the potential for greater reductions of visibility

- impairing emissions from upwind states, and would impair NJDEP's efforts to protect and restore visibility at the Brigantine

Wild erness Area in the Edwin B. Forsythe National Wildlife Refuge. I urge the USEPA to reconsider substituting CSAPR for CAIR as an alternative to source

- specific BART

determination for EGUs.

Commenter: National Parks Conservation Association and Earthjustice

Comment: EPA has not shown that, with CSAPR, each Florida BART

- eligible EGU will (1) not cause or contribute to visibility impairment, (2) demonstrate that visibility would not decline and (3) demonstrate that the CSAPR would result in overall visibility improvemen t at Chassahowitzka and St. Marks wilderness areas and Everglades National Park, or Class I areas in other states. Consequently, EPA could not possibly make the requisite showing to exempt BART

- eligibleInternal Review Draft 5/4/2012

Page 24 of 149 EGUs in Florida from BART requirements. Moreover, the Federal Land Managers at Chassahowitzka and St. Marks wilderness areas and Everglades National Park, and other Class I areas have not expressly concurred with EPA’s proposed BART exemption for Florida EGUs. To the contrary the only FLM responses to the na tional rulemaking have been critiques about the program’s shortcomings including its inability to protect Class I areas against pollution hotspots. As a result, there is no statutory authority for EPA to exempt BART

- eligible EGUs in Florida from BART by re lying on CSAPR. EPA purports only to show that CSAPR is better than BART nationwide. Neither EPA nor Florida has attempted to demonstrate that CSAPR is better than BART for Florida. The existing analyses demonstrate that CSAPR does not provide greater emi ssion reductions at BART eligible EGUs in Florida that likely cause or contribute to visibility impairment, and therefore will not achieve greater than reasonable progress at implicated Class I areas. EPA’s projection that

cumulative NOx emissions from BAR T

- eligible EGUs in Florida will be 9,178 tons lowe r under

BART than under CSAPR is illustrated at individual units.

The commenter provided e xamples for specific sources in the comment letter

.

Commenter: National Parks Conservation Association on behalf o f numerous organizations
Comment: CSAPR’s Uncertainties and Lack of Source Specific Emission Reduction Requirements Make It Unsuitable as a BART Alternative in Georgia

EPA's “CSAPR is better than BART” determination fails to account for the inherent

uncer tainties in emissions reductions under CSAPR. BART is a technology that must be installed and operated year

- round, and a corresponding emission limit that must also be met year

- round.

BART emissions limits must be met on a continuous basis. See 42 U.S.C. § 7602(k); CAA § 302(k). The BART Guidelines require enforceable emission BART limits to be reflected in permits for EGU’s which must “specify an averaging time of a 30

- day rolling average” See 70 Fed. Reg. 39104, 39172 (July 6, 2005).While BART limits are typically set as 30

- day rolling averages, visibility impacts are measured based on a one

- hour averaging time. The longer the averaging period, the higher emissions may be in any given hour during that averaging period.

An emission limit based on annual ave rages allows for much higher short

- term emissions

– and thus much greater short

- term impact on visibility

– than would a limit based on a 30

- day rolling average. These requirements allow regulatory agencies to predict with a high level of certainty

the emi ssions reductions that will result from BART to ensure improvement in visibility from reductions on the 20% worst days and no degradation on the 20% best days in Class I areas. By contrast, CSAPR allows trading of emissions allowances between sources, inc luding between sources in difference states, rather than imposing a fixed emission limit for each source. EPA’s assessment of CSAPR Better than BART does not and likely cannot assess the unknown impact of complex trading under CSAPR on the Class I areas af fected by Georgia sources. EPA cannot say with any assurance that it knows specific impacts to Class I areas in Georgia as it has not modeled the vagaries of trading between states coupled with the complex differences in geography and weather patterns that will affect a specific Class I area. Although each Georgia EGU has a CSAPR allocation, the EGUs may trade allowances within certain limits. Regardless of whether this flexibility is a policy virtue for CSAPR as a vehicle for ensuring compliance with the NAAQS, this flexibility is a fundamental problem for using CSAPR toInternal Review Draft 5/4/2012

Page 25 of 149 comply with the visibility improvements required by the Regional Haze Rule. CSAPR’s variability could allow a power plant to exercise options that would lead to little or no emission

reduc tions at its facility. For example, a source in Georgia might purchase emission credits from a source beyond the airshed of the Class I area the Georgia source impairs. Each Georgia EGU will have different impacts on visibility as a result of, among other things, their respective size, location and the prevailing winds toward Class I areas. EPA does not know

– and cannot know

under the current rule

– which Georgia EGUs will actually reduce emissions under CSAPR, or by how much.

It is however certain that the SO2 and NOx emission reductions potentially achievable through CSAPR allocations at the at least 19 BART eligible Georgia EGUs pale in comparison to those that would be required through operation and installation of an appropriate BART limit, assuming each source were subject to BART. It is also virtually certain that steeper emission reductions would make greater strides in attaining reasonable progress goals and therefore calls into question EPA’s reliance on CSAPR to exempt BART sources from Regional Haze Rule requirements. Thus, without knowing which Georgia EGUs will reduce pollutants by what amounts under CSAPR, in which Class I airsheds those reductions will occur, or when they will do so, EPA simply cannot demonstrate that CSAPR will result in gr eater reasonable progress

than source specific BART.

Commenter: National Parks Conservation Association on behalf of a number of organizations
Comment: EPA has not shown that, with CSAPR, each Georgia BART

- eligible EGU will (1) not cause or contribute to visibility impairment, (2) demonstrate that visibility would not decline and (3) demonstrate that the CSAPR would result in overall visibility improvemen t at Okefenokee, Cohutta, and Wolf Island wilderness areas,, or Class I areas in other states. Consequently, EPA could not possibly make the requisite showing to exempt BART

- eligible EGUs in Georgia from BART requirements. Moreover, the Federal Land Manage rs at Okefenokee, Cohutta, and Wolf Island wilderness areas, and other Class I areas have not expressly concurred with EPA’s proposed BART exemption for Georgia EGUs. To the contrary the only FLM responses to the national rulemaking have been critiques abo ut the program’s shortcomings including its inability to protect Class I areas against pollution hotspots. As a result, there is no statutory authority for EPA to exempt BART

- eligible EGUs in Georgia from BART by relying on CSAPR.

EPA purports only to show that CSAPR is better than BART nationwide. Neither EPA nor Georgia has attempted to demonstrate that CSAPR is better than BART for Georgia. The existing analyses demonstrate that CSAPR does not provide greater emission reductions at BART eligible EGUs in Georgia that likely cause or contribute to visibility impairment, and therefore will not achieve greater than reasonable progress at implicated Class I areas.

Examples in comment letter for specific sources

Commenter: Kristen A. Henry, Sierra Club
Comment: Indiana Illegally Failed to Complete a BART Determination For Each Source Subject to BART

in the State.Internal Review Draft 5/4/2012

Page 26 of 149 Even if we assume for the sake of argument that alter natives to BART are not permissible under the CAA, Indiana nor EPA has not met the regulatory requirements necessary to approve such alternatives. First, Indiana or EPA was required, but failed, to make a BART determination for each source subject to BART in the state. Pursuant to 40 CFR § 51.308(e)(2), for all alternatives to BART, the agency “must submit an implementation plan containing the following plan elements and include documentation for all required analyses: ...(C) An analysis of the best continuous emission control technology available and associated emissions reduc tions

a chievable for each source within the State subject to BART and covered by the alternative program. . . . [If] the emissions trading program or other alternative measure has been designed to meet a requirement other than BART. . . the State may deter mine the best system of continuous emission control technology and associated emission reductions for similar types of sources within a source category based on both source

- specific and category

- wide information, as appropriate.” (emphasis added).

EPA’s p roposed Regional Haze FIP fails to comply with those regulatory requirements. Rather

than make a BART determination for each individual source subject to BART that would be covered by Indiana’s proposed alternative to BART program (specifically, CSAPR), EP A simply compared projected emissions reduction from CSAPR to presumptive BART emissions. 76 Fed. Reg. 82219, 82225. In doing so, EPA entirely ignored the regulatory mandate that it determine

BART “...based on both source

- specific and category wide informa tion....” 40 C.F.R. § 51.308(e)(2)(C). As EPA made clear in its BART Guidelines, presumptive BART levels are not

source

- specific; rather, they merely provide a general baseline for BART that States may

– indeed, must

– deviate from if a source

- specific analy sis so indicates. See 40 C.F.R. Part 51, Appendix Y; BART Guidelines at 39171 (presumptive BART limits only apply if no

determination made that “an alternative control level is justified based on a careful consideration of the statutory factors” for a give n source). Because Indiana and EPA both entirely failed to use

source

- specific information or undertake a comprehensive five factor analysis to determine BART, EPA may not approve the proposed partial Regional Haze FIP.

Commenter: Earthjustice/Texas

Comm ent: EPA’s “better than BART” conclusion is also unsupportable in Texas because CSAPR will not achieve greater reasonable progress than BART. As noted above, under the RHR, EPA must demonstrate that CSAPR “will achieve greater reasonable progress than woul d have resulted

f rom the installation and operation of BART at all sources subject to BART in the State and covered by the alternative program.” 40 C.F.R. § 51.308(e)(2)(i) (emphasis added). As Earthjustice’s accompanying comment letter explains, EPA must determine whether CSAPR is

better than BART on a state

- by

- state and source

- by

- source basis. EPA has failed to analyze, let alone demonstrate, whether CSAPR is better than BART for the BART

- eligible EGUs in Te xas. F urther, as Earthjustice’s accompanying comment letter also demonstrates, had EPA undertaken the required source

- by

- source, state

- by

- state analysis, EPA could not reach a credible conclusion

that CSAPR is better than BART in the 28 CSAPR states. EPA’s partial FIP for Texas has two additional problems: the available evidence demonstrates that CSAPR will achieve less reasonable progress than BART because it will allow for greater sulfate emissions statewide and significantly less SO 2 and NOx emission red uctions at BART

- eligible EGUs in Texas.Internal Review Draft 5/4/2012

Page 27 of 149 Sulfate Emissions in Texas Would Be At Least 91% Greater Under CSAPR than BART As discussed above, EPA and the National Park Service have determined that sulfate emissions are the primary cause of regional haze at B ig Bend. See supra at 4

– 5. Moreover, the State of

Texas has determined that SO 2 emissions are the “predominant” contributor to visibility impairment from Texas EGUs. Id.

According to EPA data, SO 2 emissions in Texas would be 91% greater under CSAPR than

B ART. Under EPA’s “Transport Rule + BART

- elsewhere” scenario, 2014 annual SO 2 emissions in Texas would be 266,600 tons. TSD at 10, Table 2

- 4. Under the “Nationwide BART” scenario, however, 2014 annual SO 2 emissions in Texas would be 139,300 tons. Id. This r epresents a 91%

increase in SO 2 emissions under CSAPR relative to BART. Moreover, this 91% increase in SO 2 emissions under CSAPR does not account for the revisions to Texas’s SO 2 budget, which allows Texas EGUs to emit significantly greater SO 2 emissions t han provided in the initial version of

CSAPR. See supra at 14

– 15. CSAPR will thus result in an even greate r increase in SO 2 emissions relative to BART than the 91% increase detailed in the TSD. Interagency staff reviewing EPA’s “better than BART” determina tion for CSAPR recognized this problem. The interagency staff “expressed concern” that EPA’s proposed rule creates subregions, such as in Texas, where “emissions reductions under CSAPR could be significantly less than under BART.” Summary of Interagency Wo rking Comments on Draft Language under EO 12866 Interagency Review, at 8 (Exh. 11). Further, these reviewers recognized that BART controls for

SO 2 are “essential component[s]” to reducing visibility impairment at Class I areas. Id. at 9.

EPA’s proposed rule, however, would ignore those findings and exempt BART

- eligible EGUs in Texas from installing and operating these critical BART controls. As a result, CSAPR will result in greater SO 2 emissions in Texas than would appropriate BART determinations.

BART Would Require Significantly Greater SO 2 and NOx Emission Reductions from Texas’s

BART

- Eligible EGUs than CSAPR CSAPR also does not make greater reasonable progress than BART in Texas because CSAPR will not require the level of emissions reductions from BART

- eligible EGUs in Texas

than BART would. As discussed above, more than two

- thirds of Texas’s BART

- eligible EGUs do not employ any SO 2 controls. See Table 1. CSAPR requires these EGUs to reduce their

annual SO 2 emissions to varying degrees

— ranging from a 6% reduction at Harrington Unit 2 and a 15% reduction at Harrington Unit 1 relative to 2010 emissions, up to 73% reductions at Big

Brown Units 1 and 2. Compare Table 2 & Exh. 9 (revised CSAPR allocations), with Exh. 4 (2010 emissions). However, BART limits at these EGUs would require far greater reductions, as

BART for SO 2 achieves 95

– 99% SO 2 removal. See 76 Fed. Reg. at 81742; 76 Fed. Reg. at

64203.

Similarly, the majority of the BART

- eligible EGUs in Texas do not employ SCR, which is commonly BART for NOx controls. See Table 1. In 2010, these EGUs emitted NOx at average rates varying from 0.10 lb/MMBtu (Sam Seymour Unit 1) to 0.28 lb/MMBtu (Harrington Unit 1). Exh. 4. BART for NOx, however, is often SCR achieving emissions rates as low as 0.04

lb/MMBtu. See 76 Fed. Reg. at 64203; 76 Fed. Reg. at 52388. CSAPR requires marginal

reductions in NOx emissions at Texas’s BART

- eligible EGUs, ranging from a 5% reduction relative to 2010 emissions at Harrington Unit 2 to a 47% reduction at Harrington Unit 1.Internal Review Draft 5/4/2012

Page 28 of 149 Compa re Table 2 & Exh. 9 (revised CSAPR allocations), with Exh. 4 (2010 emissions). The NOx reductions required by CSAPR will not achie ve the BART rate of 0.04 lb/MMBt u. Moreover, the BART

- eligible EGUs in Texas that have installed SCR (Sandow Unit 4 and WA

Par ish Units 5

– 7) will be allowed to increase their NOx emissions under CSAPR. Compare Table 2 & Exh. 9 (revised CSAPR allocations), with Exh. 4 (2010 emissions). Consequently, they w ill emit NOx at a rate above the BART limit of 0.04 lb/MMBtu. Given this evi dence, CSAPR plainly will not make greater reasonable progress than BART, as required by the RHR

for a viable BART

- alternative. See 40 C.F.R. § 51.308(e)(2). Accordingly, EPA cannot issue a partial FIP for Texas relying on CSAPR in place of BART controls for Texas’s BART

- eligible

EGUs.

Commenter: Kathryn M. Amirpashaie/Sierra Club

Comment: Case Specific BART Determinations for SO2 emissions from EGUs in Alabama, North Carolina, and South Carolina Would Almost Certainly Ensure Greater Progress than would be achieved by

CSAPR. In many of the states for which EPA has proposed to issue a limited disapproval of the regional haze SIP and replace the SIP with a partial regional haze FIP, substituting CSAPR for BART does not actually result in greater reasonabl e progress towards these states visibility goals.

In making this determination, as a first level of analysis, Sierra Club looked at BART

- eligible sources in Alabama, North Carolina, and South Carolina that have not installed scrubbers to

determine whethe r installation of BART scrubbers on those units would achieve greater emissions reductions than CSAPR. As previously discussed, in recent case

- specific BART determinations EPA has determined that installing scrubbers can result in a 99% reduction of

emissi ons or, alternatively, in an emissions limit of 0.06 lb/MMBtu SO 2 . In Exhibits 1 and 2 to this comment, expert Ranajit Sahu has examined what effects a benchmark limit of 0.06

lb/MMBtu SO 2 would have on emissions from BART

- eligible EGUs in Alabama, North

C arolina, and South Carolina, as well as in Mississippi. His findings show significantly greater progress at a number of these EGUs through application of a 0.06 lb/MMBtu emission limit as opposed to CSAPR. See Ranajit Sahu’s report and spreadsheet, attache d hereto as Exhibits 1 and 2, respectively. Similarly, in our comments below, we have presented, as an example of the potential emissions reductions that could be achieved by installing BART scrubbers on EGUs
that result in a reduction of 99% SO 2 emissions , a comparison of those potential emissions

reductions with CSAPR.

As our findings demonstrate, in Alabama, North Carolina, and South Carolina BART (i.e. Wet Flue Gas Desulfurization Systems, a.k.a. scrubbers) could provide significant emissions

reduction s over CSAPR. The discussion below is not intended to capture every instance where BART is needed over CSAPR to ensure reasonable progress. Instead, by looking at units that do not currently have SO 2 controls yet are located within 300 km of Class I areas, the analysis targets the most egregious cases.

Commenter: Earthjustice on behalf of numerous organizations
Comment:Internal Review Draft 5/4/2012

Page 29 of 149 The Proposed Partial FIPs Do Not Make Reasonable Progress In many of these states for which EPA has proposed to issue a limited disappr oval of the regional haze SIP and replace the SIP with a partial regional haze FIP, substituting CSAPR for BART does not promise to result in greater reasonable progress. As the discussion below demonstrates, in Alabama, Georgia, Indiana, Michigan, Missour i, North Carolina, Ohio, Pennsylvania, South Carolina, and Texas, BART will likely provide significant emissions reductions over CSAPR at

the BART

- eligible sources neighboring Class I Areas. These emissions reductions are very likely

needed to ensure that each state either meets its own reasonable progress goals or does not preclude achievement of reasonable progress in downwind states.

The discussion below is not intended to capture every instance where BART is needed in

addition to CSAPR to ensure reasonable progress. We looked exclusively at units that: (1) do not currently have SO 2 or NOx controls; and (2) are located within 300 km of Class I areas, in an effort to target the most obviously problematic implications of exempting sources from BART

r equirements in the proposed FIP states. (We expect similar concerns to be present in all states across the CSAPR regions). Based on these examples alone, however, EPA cannot finalize these reasonable haze FIPs without undertaking state

- specific demonstrati ons that CSPAR somehow achieves greater reasonable progress than BART.

EPA Response: [placeholder]



### IX. Comments on the Relationship Between CSAPR, BART, and Other **Requirements of Regional Haze SIPs**

Commenter: Earthjustice on behalf of a number of orga nizations
Comment: EPA has not evaluated or determined each state‘s reasonable progress goals, and thus cannot reasonably conclude that CSAPR achieves greater reasonable progress than BART. 40 C.F.R. § 51.308(d), (e)(3).

EPA Cannot Conclude That CSAPR Achieves Greater Reasonable Progress than BART without

Reference t o Each State’s Reasonable Progress Goals

EPA’ s proposed better

- than

- BART finding is improper because it looks at BART in isolation, without reference to or consideration of the reasonable p rogress goals that BART and all of the other measures incorporated into regional haze plans are intended to achieve. EPA‘s proposal states that the Agency will act on reasonable progress goals (and other regional haze require ments) “ for each state in an in dividual notice at or after the time of the final rule for this

action .” 76 Fed. Reg. 82219, 82221 (Dec. 30, 2011). Further, EPA will not disapprove any 2018 reasonable progress targets. Without defining or even referencing those goals, EPA cannot

reasonab ly conclude that CSAPR achieves reasonable progress at all, much less greater reasonable progress than BART u nder 40 C.F.R. § 51.308(e)(3).Internal Review Draft 5/4/2012

Page 30 of 149 Achieving reasonable progress is the fundamental objective that must be met by regional haze

SIPs or FIPs. See 40 C.F.R. § 51.308(d)(1) (listing the reasonable progress goals as a core requirement of the regional haze plan); see also UARG, 471 F.3d at 1340 (explaining that the regulatory scheme places reasonable progress at its center, and state regional haze plans mu st contain sufficient measures to achieve reasonable progress). Thus, each statewide regional haze plan must contain regional progress goals, which are set based on the uniform rate of progress to attain natural visibility conditions by 2064, and each plan must prescribe the immediate and long term strategy measures, including BART, that are necessary to meet those progress goals. See 40 C.F.R. §§ 51.308(d)(1) & (3); id. § 51.308(e). Because BART is critical to the state‘s ability to reach its reasonable pr ogress goals, EPA cannot exempt sources from BART without considering how the exemption will affect the overarching reasona ble progress mandate. See CAA §1 69A(b)(2)(A), 42 U.S.C. § 7491(b)(2)(A). Concluding that CSAPR achieves greater reasonable progress t oward achieving natural visibility conditions than BART without regard to defined reasonable progress goals is arbitrary and contrary to law under the Clean Air Act and implementing federal regulations.

Failure to consider the impact of the proposed BART exemption is most obviously improper in instances where states expressly relied on emissions reductions consistent with presumptive BART to meet reasonable progress goal s. As the U.S. Forest Service ( USFS) has made clear in comments to EPA on the current p roposal:

[W]hile EPA states “ we believe that the reasonable progress goals in the SIPs for the states addressed in this proposed action do not need to be revised by the states at this time or replaced by goals established by us via FIPs, ” the reality is that the allowa nce for creation of visibility

“ hot spots ” through the application of the Transport Rule as a BART alternative creates inconsistencies where the established reasonable progress goals relied upon presumptive BART

levels. We do not agree that progress goals would not need to be revised under this rulemaking. [FN 19]

... Similarly, because BART can produce greater visibility improvement than CSAPR at one or more Class I area (see Section VII.A, infra), the proposed rule violates 4 0 C.F.R. § 51.308(d)(1)(vi), which establishes that a state may not adopt a progress goal that represents less visibility improvement than would be expected from complying with requirements under the Clean Air Act, including BART. See also USFS Comments at 14

- 15 (explaining that EPA cannot adopt the proposed rule because it would sanction the adoption of reasonable progress goals that provide less visibility improvement than BART in contravention of 40 C.F.R. § 51.308(d)(1)(vi)).

[FN 19] United States Fo rest Service Comments on Better than BART NPRM (USFS Comments) at 1 (Nov. 28, 2011). The USFS Comments on EPA‘s Draft Notice of Proposed Rule Making were obtained on February 28, 2012 in response to a Freedom of Information Act request. These comments are incorporated by reference herein and

attached as Attachment 1.

Commenter: Kathryn M. Amirpashaie/Sierra Club

Comment: EPA Must Evaluate Regional Haze Plans in Whole, Not In PartInternal Review Draft 5/4/2012

Page 31 of 149 EPA’s proposed limited partial FIPs for Alabama, Mississippi, North Carolina, and South Carolina violate the CAA and RHR since EPA has failed to evaluate what effect exempting EGUs in these states from BART would have on the remaining components of their r egional

haze SIPs. See 40 CFR § 51.308(d) (e). Regional haze SIPs/FIPs must contain the entirety of a state’s comprehensive plan for attaining natural visibility conditions by 2064, including the state’s reasonable progress goals, its long term strategy to meet those goals, and its BART

determinations. See CAA § 169A(b)(2)(A); 42 U.S.C. § 7491(b)(2)(A); 40 C.F.R. § 51.308(d), (e). Because these components are interrelated, EPA cannot approach regional haze as it has done here, in a piecemeal fashion.

Indee d, all of required components of a Regional Haze SIP/FIP very much affect one another, are part of a “single administrative action,” and must be evaluated together. [FN 13] EPA cannot evaluate individual components of a regional haze plan in isolation with out reference to whether reasonable progress will be achieved collectively by the sum of the parts of each plan. [FN 14] As a consequence, EPA cannot exempt sources from the RHR’s BART requirements without full consideration of how that exemption would affe ct the overarching reasonable progress mandate.

See 42 U.S.C. § 7491(b)(2)(A).

Therefore, EPA’s finding that CSAPR is “better than BART”, without an examination of how

the CASPR

- instead

- of

- BART substitution would impact the remaining portion of these sta tes’ regional haze SIPs is unlawful. EPA must wait to make a BART

- alternative determination at the same time EPA reviews and approves these states’ revisions to their regional haze SIPs that address regional haze for the first implementation period. [FN 15 ] See Utility Air Regulatory Group v. EPA , 471 F.3D 1333, 1340 (D.C. Cir. 2006) (explaining that even if EPA has determined that a program is “better than BART”, if at the state level that same program is not likely to achieve the State’s own reasonable pr ogress goals, the state must take other measures that will achieve those goals at each Class I area.) As a result, EPA’s proposed limited FIPs for Alabama, Mississippi, North Carolina, and South Carolina are improper.

EPA cannot issue legally

- defensible partial regional haze FIPs for Alabama, Mississippi, North Carolina, or South Carolina that rely on CSAPR to prematurely exempt all power plants from the RHR’s BART requirements. A strong regional haze plan that complies with the visibility protection regu lations

— including BART controls at all BART

- eligible EGUs

— is critically important to protect public health and improve visibility at Class I areas in these and nearby states. In addition to the immeasurable health benefits that accompany a reduction in tho se pollutants which contribute to regional haze, a strong regional haze plan will benefit tourism and local economies by ensuring that people from around the world will continue to travel to these states to explore and enjoy their natural treasures.

[FN 13] Regional haze plans are singular, comprehensive documents that must achieve reasonable progress through BART, a long term strategy, and other controls and, therefore, they cannot be segmented so that only portions of the plans are approved at a particu lar time. See 40 C.F.R. § 51.308(b) & (f). As a result, EPA cannot issue a partial regional haze FIP that segments and divorces the analysis of the complementary BART and reasonable progress requirements. Indeed, courts have forbid EPA from evaluating a SI P revision in a vacuum where a larger analysis is required to determine whether the revision complies with the Clean Air Act. See Ass’n of Irritated Residents v. EPA

,

--- F.3d

---- , Nos. 09

- 71383, 09

- 71404, 2012 WL 251912, at *4 (9th Cir. Jan. 27, 2012) (c iting Hall , 273 F.3d at1159 (“The EPA must be able to determine that, with the revisions in place, the whole ‘plan as . . . revised’ can meet the Act’s attainment requirements.”)). In addition, EPA’s own guidance rejects the idea that it is permissible toInternal Review Draft 5/4/2012

Page 32 of 149 issue partial or piecemeal approval of SIPs that are meant to be singular, comprehensive documents. See Memorandum from John Calcagni, Director, Air Quality Mgmt. Div., OAQPS, to Air Div. Directors, EPA Regional Offices, at 2 (1992) (stating that “[f]or e xample, EPA cannot approve part of a submittal that specifies control measures and disapprove the part that specifies the test methods associated with those control measures”), available at http://www.epa.gov/ttn/caaa/t1/memoranda/siproc.pdf. According to this guidance, EPA can issue partial approvals only in certain situations. For example, where a state submits “groups of rules” together, t]he EPA can approve some of the rules and disapprove the rest as long as the rules that are disapproved do not affect those that are approved.” Id . Where the rules or other proposals are not separable, however, EPA may not segment the analysis. Id . This is consistent with Section 110(k) of the Clean Air Act, which allows for partial approval and partial disapproval of a SIP revision, but does not suggest that a portion of a single revision can simply be ignored when issuing such partial approvals or disapprovals. 42 U.S.C. § 7410(k)(3) (“If a portion of the plan revision meets all the applicable requirements of this chapt er, the Administrator may approve the plan revision in part and disapprove the plan revision in part.”). [FN 14] The overarching mandate of the Act and the RHR is a state

- wide regional haze plan that achieves reasonable progress toward the 2064 natural v isibility goal. 40. C.F.R. § 51.308. To meet the 2064 goal, a regional haze plan involves two intertwined components: BART controls and a long

- term strategy to achieve reasonable progress toward that goal. See 42 U.S.C. § 7491(b)(2) (“each applicable imple mentation plan” must “contain such emission limits, schedules of compliance and other measures as may be necessary to make reasonable progress.”); 40 C.F.R. § 51.308(d)(1) & (3). [FN 15] The proposed promulgation deadline for these four states was Februar y 15, 2012. See Consent Decree, Nat’l

Parks Conservation Ass’n v. Jackson , No. 1: 11

- cv

- 01548 (ABJ) (D.D.C. Nov. 9, 2011). These proposed rules were published in the Federal Register, today, February 28, 2012. See Proposed Rule, Approval and Promulgation of Air Quality Implementation Plans; State of North Carolina; Regional Haze State Implementation Plan, 77 Fed. Reg. 11858 (February 28, 2012); Proposed Rule, Approval and Promulgation of Air Quality Implementation P lans; State of Mississippi; Regional Haze State Implementation Plan, 77 Fed. Reg. 11879 (February 28, 2012); Proposed Rule, Approval and Promulgation of Air Quality Implementation Plans; South Carolina; Regional Haze State Implementation Plan, 77 Fed. Reg. 11894 (February 28, 2012); Proposed Rule, Approval and Promulgation of Air Quality Implementation Plans; State of Alabama; Regional Haze State Implementation Plan, 77 Fed. Reg. 11937 (February 28, 2012).

Commenter: National Parks Conservation Associati on on behalf of numerous organizations

Comment: EPA Cannot Issue a Partial Regional Haze FIP without Evaluating Georgia’s Proposed SIP as a

Whole EPA’s proposed partial FIP violates the Clean Air Act and RHR because EPA failed to evaluate,

let alone deter mine, whether exempting Georgia EGUs from BART complies with the Act’s reasonable progress mandate. The D.C. Circuit has explained that the overarching mandate of the

Clean Air Act and the RHR is a state

- wide regional haze plan that achieves reasonable pro gress toward the 2064 natural visibility goal. Util. Air Regulatory Group , 471 F.3d at 1340; Ctr. for Energy and Econ. Dev. v. EPA , 398 F.3d 653, 660 (D.C. Cir. 2005). To meet the 2064 goal, a regional haze plan must include two critical components: BART l imits and a long

- term strategy to achieve reasonable progress toward that goal. 42 U.S.C. § 7491(b)(2)(A) & (b)(2)(B); 40 C.F.R. § 51.308(d)(1), (d)(3), (e); see also 42 U.S.C. § 7491(b)(2).

A regional haze plan’s BART requirements and long

- term strategy cannot be evaluated in isolation. In order to set the reasonable progress goals in the long

- term strategy, EPA or the state must, among other things, determine a “uniform rate of progress” required to meet that goal. 40 C.F.R. § 51.308(d)(1)(B). As part of that calculation, EPA or the state must determine “the uniform rate of improvement in visibility and the emission reduction measures needed to achieve it for the period covered by the implementation plan.” Id . Because BART is a critical componentInternal Review Draft 5/4/2012

Page 33 of 149 to achie ving reasonable progress, neither the states nor EPA can exempt sources from the RHR’s BART requirements without any consideration of how doing so will affect the overarching reasonable progress mandate.

Despite these requirements, the proposed partial F IP for Georgia contains exactly three sentences, none of which analyzes a long

- term strategy or reasonable progress goals, nor how the exemption of all EGUs would affect such a strategy or goals if they existed. See 76 Fed. Reg. at

82232. Absent a uniform rate of progress calculation, long

- term strategy, or reasonable progress goals, EPA has no rational basis to determine that CSAPR emissions controls are sufficient to comply with the RHR reasonable progress mandate.

All required components of a Regional Haze SIP or FIP affect each other, are part of a “single administrative action,” and must be evaluated together to determine if the partial FIP complies with the Clean Air Act and RHR. EPA’s failure to consider together the proposed alternative BART progra m, the long

- term strategy and reasonable progress goals in Georgia’s SIP violates the Clean Air Act and RHR and is arbitrary and capricious.

EPA’s premature decision to exempt Georgia EGUs from NOx BART will put the burden of reaching reasonable progress goals on non

- BART eligible EGUs and other non

- EGU haze

emitting sources in the state. For most BART eligible Georgia EGUs, adequate BART controls for SO2 and NOx would compel the installation and operation of scrubbers and SCR (assuming they were not alre ady installed)

– proven and widely

- available technologies that significantly reduce SO2 and NOx emissions. However, because EPA is exempting BART controls at subject

sources, non

- BART EGUs and other non

- EGU sources will need to more substantially reduce

ot her haze causing emissions to help achieve reasonable progress goals. As a result, instead of installing and operating SO2 and NOx BART controls at a select number of BART eligible EGUs in Georgia, the proposed rule would force EPA to secure a greater shar e of the necessary visibility improvements from additional emission controls on non

- BART EGUs and other source categories to make up for lost emission reductions at BART

- eligible EGUs. For the reasons stated above and the reasons provided in the national comments, CSPAR does not satisfy the requirements of the Regional Haze Rule, and cannot be approved as a substitute for BART as proposed. Instead, EPA must promulgate a regional haze plan that contains all aspects of the state’s regional haze plan includin g source

- specific SO2 and NOx BART limits for the Georgia EGUs.

Commenter: National Parks Conservation Association on behalf of numerous organizations
Comment: BART is Required to Meet Reasonable Progress Goals for Class I Areas in Georgia

The CAA requires Georgia to submit a state implementation plan that contains “such emission limits, schedules of compliance and other measures as may be necessary to make reasonable progress toward meeting the national goal” of returning Class I areas to natural v isibility conditions. 42 U.S.C. § 7491(b)(2). Furthermore, EPA has interpreted the statute to mean that each state must establish a reasonable progress goal for each Class I area within its borders, 40 C.F.R. § 51.308(d)(1), and then, in its long

- term stra tegy, adopt enforceable emissions limitations and other measures “as necessary to achieve the reasonable progress goals.” Id. §Internal Review Draft 5/4/2012

Page 34 of 149 51.308(d)(3). A State must require that “all necessary emissions reductions take place during the period of the first long

- term strategy for regional haze.” 40 C.F.R. § 51.308(e) (2)(iii). The end of the first long

- term strategy period for regional haze is 2018. For Class I areas outside a state’s border, the state has an obligation to ensure it adopts controls necessary to ensure its share of the pollution reductions that are required in order to meet the reasonable progress goals set for the subject Class I area. Id.

Allowing sources in Georgia to escape SO2 BART controls is likely to preclude Georgia from achieving its reasonab le progress goals. Georgia contains eight units that do not have SO2 controls that are also located within 300 km of two of its three Class I areas, Cohutta Wilderness Area and Wolf Island Wilderness Area. Applying proper BART emission limits at these unit s would reduce SO2 emissions by approximately 95% over CSAPR allocations for these units, as the table below demonstrates. EPA cannot approve a FIP for Georgia without analyzing whether Georgia will still be on track to meet its reasonable progress goals e ven if it opts out of BART controls that reduce emissions by 95% over CSAPR. Given that CSAPR allows for 31,268 tons of SO2 emissions per year at uncontrolled plants, whereas BART would limit SO2 emissions to less than 1,500 tons per year, Georgia will not likely be able to make reasonable progress without

BART.

Commenter provides examples for specific EGUs in comment letter:

Commenter: National Parks Conservation Association and Earthjustice
Comment: EPA’s proposed partial FIP for Florida is necessarily restricted to NOx BART limits at BART eligible EGUs because power plants in the state are only covered under CSAPR for ozone season. Therefore, BART eligible power plants in Florida are not exempt from BART for SO2 under this proposed rulemaking. Accordin gly, Florida and EPA must issue BART determinations for SO2 at each source subject to BART, including those EGUs subject to CSAPR. Because of this bifurcated treatment of the largest sources of haze causing pollution in the state, the proposed partial FIP violates the Clean Air Act and RHR because EPA failed to evaluate, let alone determine, whether exempting Florida EGUs from BART complies with the Act’s reasonable progress mandate.

EPA has failed to account for how, in the absence of relied upon SO2 redu ctions anticipated under CAIR, it will maintain its uniform rate of progress. Moreover, even if somehow EPA could justify the conclusion that Florida will remain on the glidepath, the national rule expressly states that EPA is taking no action on those goa ls, effectively making it impossible to determine whether CSAPR for an ozone season only state could achieve greater reasonable progress than an absent or unconfirmed goal. See 76 Fed. Reg. at 82221. Absent a uniform rate of progress calculation, long

- term strategy, or reasonable progress goals, EPA has no rational basis to determine that CSAPR emissions controls are sufficient to comply with the RHR reasonable progress mandate.

All required components of a Regional Haze SIP or FIP affect each other, are part of a “single administrative action,” and must be evaluated together to determine if the partial FIP complies with the Clean Air Act and RHR. EPA’s failure to consider together the proposed alternativeInternal Review Draft 5/4/2012

Page 35 of 149 BART program, BART for SO2, the long

- term strategy and reasonable progress goals in Florida’s SIP violates the Clean Air Act and RHR and is arbitrary and capricious.

EPA’s premature decision to exempt Florida EGUs from NOx BART will put the burden of reaching reasonable progress goals on non

- BART eligib le EGUs and other non

- EGU haze

emitting sources in the state. For a number of BART eligible Florida EGUs where it is not already installed, adequate BART controls for NOx would likely compel the installation and operation of SCR

– proven and widely

- availab le technologies that significantly reduce NOx emissions. However, because EPA is exempting BART controls at subject sources, non

- BART

EGUs and other non

- EGU sources will need to more substantially reduce other haze causing emissions to help achieve reasona ble progress goals. As a result, instead of installing and operating NOx BART controls at a select number of BART eligible EGUs in Florida, the proposed rule would force EPA to secure a greater share of the necessary visibility improvements from additional SO2 and other emission controls on non

- BART EGUs and other source categories to make up for lost NOx emissions.

Furthermore, this burden extends to neighboring states like Georgia, which described in its 2010 SIP waiting for expected SO2 red uctions from Florida sources. Florida sources have a larger impact than Georgia sources at one of the state’s Class I areas (Okefenokee) and a significant impact at another (Wolf Island). Georgia sources also bear the weight of securing the necessary visibility improv ements absent emission reductions from Florida. For the reasons stated above and the reasons provided in the national comments, CSPAR does not satisfy the requirements of the Regional Haze Rule, and cannot be approved as a substitute for BART as proposed. Instead, EPA must promulgate a regional haze plan that contains all aspects of the state’s regional haze plan including source

- specific NOx BART limits for the

Florida EGUs.

Commenter: Earthjustice/Texas

Comment: EPA Must Evaluate Regional Haze Plans i n Whole, Not In Part EPA’s proposed partial FIP for Texas also violates the Clean Air Act and RHR because a regional haze plan’s BART requirements and long

- term strategy to achieve reasonable progress cannot be evaluated in isolation. In proposing a partia l FIP for Texas, EPA failed to evaluate, let alone determine, whether exempting BART

- eligible EGUs in Texas from BART complies with the Act’s reasonable progress mandate.

Under the Clean Air Act and the RHR, reasonable progress is the cornerstone and over arching

mandate of each state

- wide regional haze plan. Util. Air Regulatory Grp. , 471 F.3d at 1340 (explaining that the regulatory scheme places reasonable progress at its center, and state regional haze plans must contain sufficient measures to achieve re asonable progress); Ctr. For Energy &

Econ. Dev. v. EPA , 398 F.3d 653, 660 (D.C. Cir. 2005). Each statewide regional haze plan must contain reasonable progress goals. These goals are based on a determination of the “uniform rate of progress” to attain natu ral visibility conditions by 2064, and a determination of “the uniform rate of improvement in visibility and the emission reduction measures needed to

achieve it for the period covered by the imp lementation plan.” 40 CFR 51.308(d)(1)(B)(emphasis added). Th us, a regional haze plan must include two critical components: a long

- term strategy toInternal Review Draft 5/4/2012

Page 36 of 149 achieve reasonable progress and BART limits. 42 U.S.C. § 7491(b)(2)(A) & (b)(2)(B); 40 C.F.R. § 51.308(d)(1), (d)(3), (e); see also 42 U.S.C. § 7491(b)(2) (“each applica ble implementation plan” must “contain such emission limits, schedules of compliance and other measures as may be

necessary to make reasonable progress”). Because BART is a critical component to achieving reasonable progress, neither the states nor EPA are authorized to exempt sources from the RHR’s BART requirements without considering how doing so will affect the overarching reasonable progress mandate. Se e 42 U.S.C. § 491(b)(2)(A).

Concluding that CSAPR achieves greater reasonable progress toward achieving natural visibility conditions than BART in a regional haze FIP without regard to defined reasonable progress goals is arbitrary and contrary to law under the Clean Air Act and the RHR. [FN 11] Despite these requirements, the proposed partial FIP for Texas contains exactly three sentences, none of which analyzes the long

- term strategy or reasonable progress goals, nor how the exemption of all EGUs

wou ld affect such a strategy or goals if they existed. See 76 Fed. Reg. at 82234. [FN 12] Moreover, even if the plan provided for reasonable progress goals, the national rule expressly states that EPA is taking no action on those goals, effectively making it impossible to determine whether an alternative program could achieve greater reasonable progress than a absent or unconfirmed goal. See id. at 82221. Absent a uniform rate of progress calculation, long

- term strategy, or reasonable progress goals, EPA has n o rational basis to determine that CSAPR emissions controls are sufficient to comply with the RHR reasonable progress mandate. EPA’s failure to consider the proposed BART

- alternative program along with the long

- term strategy and reasonable progress goals i n Texas’s SIP violates the Clean Air Act and RHR and is arbitrary and capricious. See, e.g.

, Motor Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut.Auto.

Ins. Co. , 463 U.S. 29, 43 (1983).

[FN 11] EPA’s proposal for a Texas partial FIP proposal is also co ntrary to EPA’s guidance, which rejects the idea that it is permissible to issue partial or piecemeal approval of SIPs that are singular, comprehensive documents. See Memorandum from John Calcagni, Director, Air Quality Mgmt. Div., OAQPS, to Air Div. Direc tors, EPA Regional Offices, at 2 (1992) (Exh. 7). According to this guidance, EPA can issue partial approvals only in certain situations. For example, where a state submits “groups of rules” together, “EPA can approve some of the rules and disapprove

the r est as long as the rules that are disapproved do not affect those that are approved.” Id . Where the rules or other proposals are not separable, however, EPA may not vacuum where a larger analysis is required to determine whether the revision complies with the Clean Air Act. See Ass’n of Irritated Residents v. EPA

, --- F.3d

---- , Nos. 09

- 71383,

09

- 71404, 2012 WL 251912, at *4 (9th Cir. Jan. 27, 2012) (“The EPA must be able to determine that, with the revisions in place, the whole ‘plan as . . . revised’ can meet the Act’s attainment requirements.” (quoting Hall v.

EPA , 273 F.3d 1146,1159 (9th Cir. 2001)). [FN 12] As detailed below, Texas’s SIP predicts it will miss this goal by 91 years at Big Bend National Park, and that number that is likely too optimisti c. See infra at n.13. Accordingly, EPA’s failure to control emissions at the EGUs appropriately deemed to be subject to BART in Texas

— some of the oldest and largest sources of air pollution

in the state

— will have significant consequences for all other sour ces, which will bear an additional burden of steeper emission reductions to ensure the state meet its reasonable progress obligations.

Commenter: Earthjustice/Texas
Comment: EPA Cannot Issue a Partial FIP for Texas In Light Of the Texas SIP’s Failure to Achieve Reasonable Progress EPA’s premature determination that no EGUs in Texas will be required to install BART controls is particularly problematic in light of the fact that Texas’s regional haze SIP does not come even close to achieving reasonable prog ress toward the 2064 natural visibility goal. Instead, the TexasInternal Review Draft 5/4/2012

Page 37 of 149 SIP would not achieve “natural” visibility conditions until 2155 at Big Bend and 2081 at Guadalupe Mountains, at the earliest. Texas SIP at 10

- 1.[FN 13] This unreasonable delay in achieving the statutory goal is due to the fact that the Texas SIP exempts every single BART

eligible source in the state from installing controls to improve visibility impairment. Texas did not (and could not) demonstrate that it’s no control “status quo” approach makes reasonable progress, as required by the RHR. 40 C.F.R. § 51.308(d)(1)(ii). And, Texas provided no rational basis for its conclusion that the 2064 natural visibility goal is not reasonable at Big Bend and Guadalupe Mountains. See id.

Because the Texas SIP fails to achieve reasonable progress toward the 2064 natural visibility goal, EPA must issue a regional haze FIP for Texas that does so. Texas’s regional haze plan must ensure that a 2.3 dv improvement is achieved by 2018 at Big Bend and a 2.4 dv improvement is achieved by 2018 at Guadalupe Mountains on the 20% worst days.[FN 14] In contrast, under the Texas SIP, which exempted BART

- eligible EGUs from BART in reliance on CAIR, visibility by 2018 would improve by only 0.7 dv at Big Bend and 0.9 dv at Guadalupe Mountains. Texas SIP

at 10

- 1, 10

- 9, Table 10

- 2. Consequently, an additional 1.6 dv improvement at Big Bend and an additional 1.5 dv improvement at Guadalupe Mountains by 2018 on the 20% worst days are necessary to achieve reasonabl e progress. EPA’s premature decision to exempt BART

- eligible EGUs in Texas from BART will put the burden of reaching those goals on non

- EGU sources.

This makes little sense because Texas’s BART

- eligible EGUs as a group are a significant contributor to regi onal haze at Big Bend, Guadalupe Mountains, and other Class I areas in the region. See, e.g. , Texas SIP, App. 7

- 2. Moreover, BART controls at EGUs, such as SCR and modern scrubbers, are proven and readily available technologies that significantly reduce

em issions of visibility

- impairing pollutants from a select number of sources. As a result, requiring BART at Texas’s BART

- eligible EGUs would provide significant visibility benefits at Big Bend, Guadalupe Mountains, and other Class I areas, and BART controls would go far toward ensuring that reasonable progress is achieved. See infra at 17

– 18.

In this proposed rule, however, EPA has predetermined that BART controls will not be required at any power plants in Texas, without any analysis of how this will affe ct achievement of natural visibility conditions by 2064. Consequently, instead of utilizing proven and readily

- available BART controls at a select number of Texas EGUs, the proposed partial FIP for Texas would force EPA to secure the necessary visibility i mprovements from controls on other source categories, which will be a larger and more disparate group of sources to control.

[FN 13] The 2155 and 2081 “natural” visibility goals in the Texas regional haze SIP are in fact unrealistically early,

because the y are based on an arbitrary and inflated assessment of the baseline conditions. Texas departed from EPA’s default values and methodology for calculating natural visibility conditions at Guadalupe Mountains and Big Bend, and employed a methodology the Feder al Land Managers criticized as “uncertain” and flawed. See Texas SIP

at 5

- 3 to 5

- 6; SIP App. 5

- 2 at unnumbered page 3. The result is a less

- stringent visibility goal for the overall Texas SIP. For example, if Texas had used EPA’s natural visibility values, visibility conditions at Guadalupe Mountains would ultimately have to improve from 17.2 dv visibility impairment to 6.8 dv impairment on the 20% worst days. But by using an artificially

- elevated 12.3 dv “natural” visibility value for the 20% worst days, f ar less overall improvement in visibility is required. See Texas SIP at 5

- 3 to 5

- 6, App. 5

- 2 at Figure 5

- 2. Because the Texas SIP utilized artificially

- elevated levels of “natural” visibility conditions, according to EPA’s values, the SIP would not
achieve true natural visibility at Guadalupe Mountains and Big Bend until approximately 2215 at Big Bend and 2166 at Guadalupe Mountains. [FN 14] At Big Bend, baseline conditions on the 20% worst days are 17.3 dv, and the uniform rate of progress to

achieve EPA’s default natural visibility conditions by 2064 requires an improvement to 15.0 dv by 2018. Texas SIP,Internal Review Draft 5/4/2012

Page 38 of 149 App. 5

- 2 at Figure 5

- 1. Thus, the regional haze plan for Texas must improve visibility by 2.3 dv by 2018 at Big Bend to make reasonable progress. At Guada lupe Mountains, baseline conditions on the 20% worst are 17.2 dv, and the uniform rate of progress to achieve EPA’s default natural visibility conditions by 2064 requires an improvement to 14.8 dv by 2018. Texas SIP, App. 5

- 2 at Figure 5

- 2. Thus, the regio nal haze plan for Texas must improve visibility by 2.4 dv by 2018 at Guadalupe Mountains to make reasonable progress.

Commenter: National Parks Conservation Association and Earthjustice

Comment: BART is required to meet Reasonable Progress Goals for Class I Areas in Florida The CAA requires Florida to submit a state implementation plan that contains “such emission limits, schedules of compliance and other measures as may be necessary to make reasonable progress toward meeting the national goal” of returni ng Class I areas to natural visibility conditions. 42 U.S.C. § 7491(b)(2). Furthermore, EPA has interpreted the statute to mean that each state must establish a reasonable progress goal for each Class I area within its borders, 40 C.F.R. § 51.308(d)(1), an d then, in its long

- term strategy, adopt enforceable emissions limitations and other measures “as necessary to achieve the reasonable progress goals.” Id. § 51.308(d)(3). A State must require that “all necessary emissions reductions take place during the

p eriod of the first long

- term strategy for regional haze.” 40 C.F.R. § 51.308(e) (2)(iii). The end of the first long

- term strategy period for regional haze is 2018. For Class I areas outside a state’s border, the state has an obligation to ensure it adopts controls necessary to ensure its share of the pollution reductions that are required in order to meet the reasonable progress goals set for the subject Class I area. Id.

Florida’s submittal asserts that, after sufficient model adjustments, it is just bar ely meeting the uniform rate of progress in its three Class I areas where visibility is an important value. However, this appears to be untrue on its face

– for St. Marks, the 2018 predicted visibility is higher than the 2018 uniform rate of progress.12 Mo re importantly, these reasonable progress goals reflect a circumstance that is not a reality. For EGUs, the modeling assumes implementation of CAIR (or its equivalent), which

– unlike CSAPR

– regulated both NOx and SO2 year

- round in Florida. This mismatch between the modeling supporting reasonable progress goals and EPA’s proposed determination illustrates why these elements are fundamentally impossible to decouple. [FN 13 ]

Thus, without the previously relied upon SO2 emission reductions or applicability o f a year round NOx reductions it is impossible to say that Florida will meet the uniform rate of progress at its Class I areas. Similarly, neither the state nor EPA has demonstrated that CSAPR will make greater reasonable progress at Florida’s Class I area s. In the absence of this demonstration CSAPR fails the regulatory test required for an alternative BART program to exempt sources from source specific BART limits.

[FN 13] See Earthjustice’s Comments on Proposed Partial Regional Haze FIP for Texas, filed February 28, 2012.

Commenter: Kristin A. Henry, Sierra Club

Comment: Since EPA Has Not Evaluated or Determined Reasonable Progress Goals for Indiana, It Cannot Reasonably Conclude that CSAPR Achieves Greater Reasonable Progress than BART. EPA’s proposed better

- than

- BART finding is improper because it looks at BART in isolation, without reference to the long term strategy that BART and all of other measures incorporatedInternal Review Draft 5/4/2012

Page 39 of 149 into regional haze plans are intended to achieve. Without defining or ev en referencing those goals, EPA cannot reasonably conclude that CSAPR achieves reasonable progress at all, much less greater reasonable progress than BART under 40 C.F.R. § 51.308(e)(3). Therefore, EPA cannot partially approve a FIP for Indiana that rely o n CSAPR as a substitute for BART.

As discussed above, each regional haze SIP or FIP must contain the entirety of the state’s comprehensive plan for attaining natural visibility conditions by 2064, based on each state’s reasonable progress goals, a long te rm strategy to meet those goals, and installation and operation of BART. 

### See CAA § 169A(b)(2)(A); 42 U.S.C. § 7491(b)(2)(A); 40 C.F.R. § 51.308(d), (e). Because these components are interrelated, EPA cannot approach regional haze, as it did, in a piecemeal fashion. More specifically, because BART is critical to the state’s ability to reach its reasonable progress goals, EPA cannot exempt sources from BART without considering how the exemption will affect the overarching reasonable progress mandate. 

### See

CAA § 169A(b)(2)(A), 42 U.S.C. § 7491(b)(2)(A). Concluding that CSAPR achieves greater reasonable progress toward achieving natural visibility conditions than BART without regard to defined reasonable progress goals is arbitrary and contrary to law under the C lean Air Act and implementing federal regulations. EPA cannot evaluate individual components of a regional haze plan in isolation without reference to whether reasonable progress will be achieved collectively by the sum of the parts of each plan. Thus, bec ause EPA has failed to evaluate what effect exempting EGUs in Indiana from BART would have on the remaining components of its regional haze SIPs, including the state’s reasonable progress goals, EPA’s proposed limited partial FIP for Indiana violates the C AA and the Haze Rule. 40 C.F.R. § 51.308(d),(e)(3).

The D.C. Circuit has explained that the overarching mandate of the Act and the Haze Rule is a

state

- wide regional haze plan that achieves reasonable progress toward the 2064 natural visibility goal. 

### Uti lity Air Regulatory Group v. Envtl. Prot. Agency , 471 F.3d 1333, 1340 (9th Cir. 2006); 

### Ctr. for Energy and Econ. Dev. v. EPA , 398 F.3d 653, 660 (D.C. Cir. 2005). To meet the 2064 goal, a regional haze plan involves two intertwined components: BART controls and a long

- term strategy to achieve reasonable progress toward that goal. 

### See 42 U.S.C. § 7491(b)(2) (“each applicable implementation plan” must “contain such emission limits, schedules of compliance and other measures as may be necessary to make reasonab le progress.”); 40 C.F.R. § 51.308(d)(1) & (3).

Accordingly, neither EPA nor a state can evaluate a regional haze plan’s BART requirements and long

- term strategy in isolation from one another. In order to set the reasonable progress goals and develop a l ong

- term strategy to meet those goals, EPA or the state must, among other things, determine a “uniform rate of progress” required to meet the state’s goals. 40 C.F.R. § 51.308(d)(1)(B). As part of that calculation, EPA or the state must determine “the unif orm rate of improvement in visibility 

### and the emission reduction measures needed to achieve it for the period covered by the implementation plan.” 

### Id . (emphasis added). Because BART is a critical component to setting the appropriate limits for achieving re asonable progress, the states or EPA cannot exempt sources from the Haze Rule’s BART requirements without any consideration of how this will affect the overarching reasonable progress mandate. This is true as evidenced by

the fact that the D.C. Circuit Cou rt of Appeals has explained that even if EPA has determined that a program is “better than BART,” if at the state level that same program is not likely to achieve the State’s own reasonable progress goals, the state must take other measures that willInternal Review Draft 5/4/2012

Page 40 of 149 achie ve those goals at each Class I area. 

### See Utility Air Regulatory Group v. EPA , 471 F.3D 1333, 1340 (D.C. Cir. 2006).

Despite these requirements, EPA’s proposed partial FIP for Indiana consists of only two to three sentences, neither of which mentions a lo ng

- term strategy or reasonable progress goals, nor how the exemption of all EGUs would affect such a strategy or goals if they existed. 

### See 76 Fed. Reg. at 82232. Absent a uniform rate of progress calculation, long

- term strategy, and reasonable

progress go als for Indiana, EPA has no rational basis to determine that CSAPR emissions controls are sufficient to comply with the CAA and Haze Rule’s reasonable progress mandate. Moreover, EPA’s regional haze regulations mandate that for a state’s regional haze SIP to include an emissions trading program such as CSAPR as the BART alternative towards achieving reasonable progress, the SIP must also include certain elements concerning the emissions covered by that trading program’s cap. 40 C.F.R. § 51.308(e)(2)(vi). Th is includes “compliance provisions prohibiting a source from emitting a total tonnage of a pollutant that exceeds the tonnage value of its allowance holdings, including the methods and procedures for determining whether emissions exceed allowance holdings. ” 40 C.F.R. § 51.308(e)(2)(vi)(I). However, here, EPA’s approval of CSAPR as the BART alternative in Indiana is occurring in the vacuum of a limited FIP approval which approves the BART alternative, yet, sets no additional conditions on application of that program to BART

- eligible sources. Indeed, EPA’s decision that CSAPR is a “better than BART” alternative has been made in isolation from the many other requirements and conditions of Indiana’s SIP

— provisions which must necessarily be considered

at the time any BART alternative determination is made. Because the BART alternative is completely divorced from the overall regional haze implementation process and resulting plan, which includes reasonable progress goals and long

- term strategies, it is impossible t o ensure that CSAPR will achieve greater reasonable progress.

Regional haze SIPs cannot be segmented so that only portions of the plans are approved at a particular time. These SIPs are singular, comprehensive documents that must achieve reasonable

progr ess through BART, a long term strategy, and other controls. 

### See 40 C.F.R. § 51.308(b) & (f). EPA’s own guidance rejects the idea that it is permissible to issue partial or piecemeal approval of SIPs that are singular, comprehensive documents. 

### See Memorandu m from John Calcagni, Director, Air Quality Mgmt. Div., OAQPS, to Air Div. Directors, EPA Regional Offices, at 2 (1992) (stating that “[f]or example, EPA cannot approve part of a submittal that specifies control measures and disapprove the part that specif ies the test methods associated with those control measures”) available at http://www.epa.gov/ttn/caaa/t1/memoranda/siproc.pdf

. According to this guidance, EPA can issue partial approvals only in certain situations. For example, where a state submits “grou ps of rules” together, “[t]he EPA can approve some of the rules and disapprove the rest as long as the rules that are disapproved do not affect those that are approved.” 

### Id . Where the rules or other proposals are not separable, however, EPA may not

segment the analysis. 

### Id . [FN 8]

Here, as explained above, all of the required components of a Regional Haze SIP or FIP affect one another, are part of a “single administrative action”, and EPA must evaluate them together to determine if the partial FIP complies with the CAA and the Haze Rule. Therefore, EPA’s proposed FIP for Indiana is improper. EPA must make a BART

- alternative determination at the same time it reviews and approves Indiana’s revisions to its regional haze SIP that address regional haze for the first implementation period. [FN 9]Internal Review Draft 5/4/2012

Page 41 of 149 [FN 8] This is consistent with Section 110(k) of the Clean Air Act, which allows for partial approval and partial disapproval of a SIP revision, but does not suggest that a portion of a single revision can simply be ign ored when issuing such partial approvals or disapprovals. 42 U.S.C. § 7410(k)(3) (“If a portion of the plan revision meets all the applicable requirements of this chapter, the Administrator may approve the plan revision in part and disapprove the plan revi sion in part.”). [FN 9] EPA currently has two dockets open which piecemeal Indiana regional haze rules. Docket number EPA

- HQ

OAR

- 2011

- 0729, which deals with the BART alternative for EGUs and Docket number EPA

- R05

- OAR

- 2011

- 0080,

which deals with non

- EGUs.

Commenter: Earthjustice on behalf of a number of organizations

Comment: EPA Cannot Approve FIPs without Ensuring Reasonable Progress EPA cannot partially reject regional haze SIPs and propose partial regional haze FIPs for Alabama, Florida, Georgia, Indiana, Iowa, Louisiana, Michigan, Mississippi, Missouri, North Carolina, Ohio, Pennsylv ania, South Carolina, and Texas. [FN 111] In proposing to reject the SIP and issue partial FIPs, EPA illegally and arbitrarily addressed only part of the regional haze equation, BART, without accounting for reasonable progress goals in these states and whether they can be achieved without the emissions reductions at power plants that BART would provide. See 76 Fed. Reg. at 82221. Each regional haze SIP or FIP must ensur e reasonable progress with a comprehensive strategy that includes an array of measures that collectively put the state on a glide path toward restoration of natural visibility by 2064. See CAA § 169A(b)(2)(A), 42 U.S.C. § 7491(b)(2)(A); 40 C.F.R. § 51.308( b) (requiring states to submit regional haze plans addressing the reasonable progress goals and long term strategy as required in section (d) and BART as required in section (e)).

Thus, in approving each plan, EPA must determine that the sum of its parts will result in required visibility improvements. EPA cannot evaluate individual components of a regional haze plan in isolation, unmoored from the fundamental question whether reasonable progress will be achieved. Under the Clean Air Act and implementing federal regulations, reasonable progress is

the cornerstone and over

- arching mandate of each statewide regional haze plan. See UARG , 471

F .3d at 1340. Indeed, among the “ core requirements ” of each regional haze plan are the reasonable progress goals and th e long term strategy to attain those goals. 40 C.F.R. § 51.308(d)(1), (3). BART, as one of the statutorily enumerated means of achieving reasonable progress, must also be evaluated alongside the reasonable progress goals and long term strategy.

See CAA § 1 69A(b)(2)(A), 42 U.S.C. § 7491(b)(2)(A).

[FN 111] EPA cannot approve the proposed FIPs for the additional reasons set forth in comments on EPA‘s proposed approval of regional haze SIPs for Ohio, Minnesota, Pennsylvania, and Indiana that were submitted on behalf of conservation groups including NPCA and the S ierra Club. Those comments are incorporated here by reference. Likewise, EPA cannot approve the proposed FIPs for the additional reasons set forth in state

- specific comments on this proposal that have been submitted concurrently on behalf of conservation g roups including NPCA

and the Sierra Club. Those comments also are i ncorporated here by reference.

EPA Response: Please see section II.B.4 of the preamble to the final rule for EPA’s response to the comments concerning the relationship between the Trans port Rule, BART, and reasonable progress.Internal Review Draft 5/4/2012

Page 42 of 149 

### XI. Deficiencies in EPA’s Technical Analysis

**1. Misinterpretation of the Two** 

**- Pronged Test** 

Commenter: Willie R. Taylor, Director, Office of Environmental Policy and Compliance, U.S. Department of the Interior
Com ment:
Section III

. C

. I of the preamble to the draft notice of proposed rulemaking (NPRM) cites th e Regional Haze Rule at 40 CFR 51 .308(e)(3) to describe EPA's criteria for comparing visibility progress of an alternative program to BART . The regulatory text from 40 CF R 51.308(e )(3) sets two specific criteria as:

(3) A State which opts under 40 CFR S1.308(e)(2) to implement an emissions trading program or other alternative measure rather than to require sources subject to BART to install, operate, and

mainta in BART may satisfy the final step of the demonstration required by that section as

follows: If the distribution of emissions is not substantially different than under BART, and the alternative measure results in greater emission reductions, then the alter native measure may be deemed to achieve greater reasonable progress. If the distribution of emissions is significantly different, the State must conduct dispersion modeling to determine differences in visibility between BART and the trading program for eac h impacted Class I area, for the worst and best 20 percent of days. The modeling would demonstrate "greater reasonable progress" if both of the following two criteria are met:

(i) Visibility does not decline in any Class I area, and

(ii) There is an ov erall improvement in visibility, determined by comparing the average

differences between BART and the alternative over all affected Class I areas.

Although we understand EPA's explanation in the NPRM preamble describing its lst prong test, we don't agree that it meets the rule requirement as quoted above. As described in the N PRM, EPA applied the 1 st prong test only to ensure that the Transport Rule alone, without any

c onsideration of the replaced BART, would not have a negative effect on visibility at any Class I area. In our view, 40 CFR 51.308(e)(3) requires that the evaluation must be based on differences in visibility between the BART and trading programs. We recommend that EPA reconsider how it is applying the 1 st prong criteria, or alternatively rewo rd the above language to better match its interpretation.

We also do not agree with EPA's 2 nd prong interpretation. The evaluation method requires States to either evaluate total emission differences between BART and a trading program or conduct air qual ity modeling to evaluate "overall improvement" at affected areas. By expanding the "overall improvement" area to include all eastern or all continental U.S. Class I areas, EPA has created the unexpected consequence of suggesting that no control in some sta tes is better than, or as good as, significant controls which would have resulted from BART. EPA modeling results smooth out individual Class I area "declines" as well as downplay the significance of large emission reductions on the western edge that would result from presumptive BART controls.Internal Review Draft 5/4/2012

Page 43 of 149 As examples, Kansas completed BART determinations for EGUs subject to BART in its Regional Haze State Implementation Plan, and EPA has proposed to approve Kansas' Plan (76 FR 52604). Yet Kansas' emissions allowance under the Transport Rule will not require these EGUs to install controls; thus in this case, emissions under the Transport Rule are greater than emissions under BART. Similarly, in Nebraska, Gerald Gentleman Generating Station is subject

to BART and meets the Appendix Y criteria for presumptive controls (although the state is currently not requiring controls for BART). Gerald Gentleman has been identified as a cause of visibility impairment at Badlands and Wind Cave National Parks in South Dakota, yet

Nebr aska's allocation under the Transport Rule will not require any S02 control for this presumptive BART source. Lesser

- or

- no additional controls under the Transport Rule cannot produce better visibility progress than greater emission reductions of, at a mini mum, presumptive BART. EPA modeling indicates that visibility on the 20% worst days at Badlands, Wind Cave, and Theodore Roosevelt National Parks is projected to be poorer under the Transport Rule than

under BART. We recommend that EPA reconsider the 2 nd c riteria as described above and evaluate how individual State adoption of the Transport Rule will impact the Class I areas that

each State's emissions affect.

EPA Response: [placeholder]



### 2. **Averaging Across All Class I Areas**

Commenter: Earthjustice on behalf of a number of organizations

Comment: EPA Improperly Averaged Visibility Impacts Based on Emission Reductions at All Sources

across All Class I Areas Under the pre

- existing regulations that purport to allow for implemen tation of alternative programs in place of BART, an agency seeking to impose an alternative to source

- speci fic BART must

demonstrate that “ the emissions trading program or other alternative measure will achieve greater reasonable progress than would have r esulted from the installation and operation of BART at all sources subject to BART in the State and covered by the alternative program. ” 40 C.F.R. § 51.308(e)(2)(i) (emphasis added). This demonstration requires that the entity proposing the

a lternative calculate BART and the emission reductions achievable from BART at each BART

eligible source that would be covered by the alternative. Id. § 51.308(e)(2)(i)(C); see also Am. Corn

Growers Ass’n v. EPA , 291 F.3d 1 (D.C. Cir. 2002) (expressly requi ring states, in determining what constitutes the best available retrofit control, to engage in a source

- by

- source analysis of the visibility impacts achievable from application of BART); 40 C.F.R. § 51.309(d)(2) (explaining that where a

state within the Gr and Canyon Visibility Transport Region elects to adopt the Grand Canyon Visibility Commission‘s recommendations for the region in lieu of complying with the requirements, including BART, under § 51.308, it must submit a plan to EPA that projects visibility conditions at

each of the 16 Class I areas in the transport region, based on consultation with other transport region states). As the Forest Service has affirmed in its comments to EPA, “ [T]he appropriate analysis technique should limi t the geographic sco pe of both “ affected Class I areas and modeled emissions relative to each state as is implied in 40 C.F.R. § 51.308(e)(3). ” USFS Comments at 1

. Thus, to be consistent with its existing rules, EPA must determine whether a given program is better than BART

o n a state

- by

- state basis based on a source

- by

- source five

- step BART analysis, a requirement the agency has arbitrarily refused to follow as it steps into the shoes of the states.Internal Review Draft 5/4/2012

Page 44 of 149 The failure to look at CSAPR versus BART on a state

- by

- state basis preclude s leaves states that intend to opt out of BART in reliance on CSAPR without the r equisite showing that CSPAR is

“ better than BART. ” See id. at 7 (explaining that “ [f]rom a regulatory perspective, ” EPA should look at impacts of the alternative as would the states because the rule allows the states to opt out of the individualized analysis). Because this rulemaking essentially allows for the interpretation that the Transport Rule is a BART alternative program that a State may opt to participate in and rely up on to satisfy the 308(e) requirements, the dispersion modeling conducted by EPA should

have identified the “affected” Class I areas relative to each State in the Transport region rather than simply lookin g at the aggregate across each “affected” scenario t hat was analyzed. Id.

I n fact, the failure to look across all Class I areas on a state by state basis poses a serious threat to visibility in Class I areas. As discussed below, by averaging results across the entire United States, EPA was able to ignore CSAPR‘s inferiority to BART at many Class I areas.

Averaging Visibility Impacts Across the Entire United States or Within Regions Masks CSAPR’s Failure to Achieve Greater Reasonable Progress at Many Class I Areas in Many States Instead of evaluating whe ther CSAPR achieved greater reasonable progress than BART on a

state

- by

- state, source

- by

- source basis, EPA approached the second prong of the reasonable
progress tes t, 40 C.F.R. § 51.308(e)(3)(ii)

- which asks if the alternative provides greater visibility improvement at all affected class I areas

- by spatially averaging the visibility reductions seen under each program across all Class I areas in the CSAPR region and all Class I areas the nation. Averaging across this expansive area masks the failure to o btain greater visibility improvements that are possible with the application of BART both r egionally and state by state.

For example, EPA‘s ow n modeling analysis shows that “ Nationwide BART ” [FN 20] scenario provides greater visibility im provement than the alternative “ Transport Rule + BART

- elsewhere ” scenario in many Class I Areas across an entire region. [FN 21]

All of these Class I areas that EPA‘s modeling predicted would experience better visibility improvement under Nationwide BART are west of the Mississippi River, covering much of theInternal Review Draft 5/4/2012

Page 45 of 149 central plains. Id. Yet, because EPA chose to look at spatial averages acr oss all Class I areas in the CSPAR region, EPA ignored the fact that CSAPR is decidedly not better than BART in many affected Class I Areas in many states. In other words, EPA‘s approach sacrifices progress on visibility in the central plains, [FN 23] a re sult the USFS forecast to EPA. See USFS Comments at 8 (“ The net effect of this proposal creates subregions within the Transport Rule domain where emissions reductions under CSAPR would be significantly less than under BART,

“ including those in the “ Mississ ippi

- West ” subregion where the USFS predicts that “ the Transport Rule domain will have SO 2 emissions 164% greater under CSAPR than would have been assumed by presumptive BART. ” ).

The above example illustrates how spatial averaging can be used to manipulat e conclusions as to whether CSAPR is better than BART. For example, if EPA chose to average visibility at the 27 Class I areas west of the Mississippi River but east of the Rocky Mountains

- areas that for practical purposes should be considered separately from the eastern scenario because they react differently to sulfate aerosols

- EPA would have found based on its own data that “ Nationwide

BART ” is superior to the “ Transport Rule + BART

- elsewhere ” on the best 20% days. See Gebhart Report at 8

- 9 & Table 3

- 2. Again, the USFS con firms this point, stating that “ BART

controls for SO 2 are an essential component to meeting the subregional progress goals for the

Class I areas in and surrounding the “Mississippi

- West” subregion. ” USFS Comments at 9.

This problem in the “ Mississippi

- West ” region underscores the importance of evaluating the performance of alternative programs as compared to BART across a more limited geographic

area i.e. on a state

- by

- state basis as governing regulations require. EPA cannot discoun t the many

i nstances in which BART yields greater progress toward visibility goals than CSAPR by averaging v isibility impacts across the entire CSAPR region, much less the entire country. Instead, EPA must determine whether a given program is better than BART on a state

- by

- state basis having considered what an alternative would achieve in the way of emissions reductions relative to BART at each relevant source. Not only has EPA failed to undertake this analysis, any such appropriate analysis would preclude the conclusion that CSAPR is better than BART, as the above examples confirm. EPA offers no lawful or reasoned explanation for departing from the approach required in its existing rules, nor can it do so.

[FN 20] The “Nationwide BART” scenario estimated the effect of applying BART controls at specific BART

eligible source across the entire nation, including sources in the CSAPR region in the east and sources in the non

CSAPR region in the west. [FN 21] EPA’s “Transport Rule + BART

- elsewhere” scenario est imated the effect of relying on CSAPR, or the Transport Rule, in CSAPR states, yet applying BART at BART

- eligible sources outside of the CSAPR region. [FN 22] It is not surprising that visibility in the central plains will suffer if CSAPR is substituted fo r BART; emission allocations under CSAPR were allotted based on the impact that each state had on the ability of downwind states in the CSAPR region, which is predominantly east of the central plains, to attain and maintain the fine particulate and ozone N AAQS. For this reason, certain CSAPR border states such as Nebraska and Minnesota, which were found to impact attainment in only one county in Wisconsin, are able to emit more than other CSAPR states, sacrificing visibility conditions west of the CSAPR reg ion. See U.S. EPA, Cross

- State Air Pollution Rule (CSAPR), Where You Live, http://www.epa.gov/airtransport/whereyoulive.html (showing that emissions from Nebraska and Minnesota are only linked to nonattainment at one point in Wisconsin).

EPA Response:Internal Review Draft 5/4/2012

Page 46 of 149 [OGC help needed. I think you said that this averaging point had been part of previous litigation.] See preamble discussion. EPA finds either the 60 or 140

- area average to be an appropriate identification of “affected class I areas.”

Commenter: Earthjustice on behalf of a number of organizations
Comment:

Arithmetic A veraging Cannot Accurately Demonstrate Whether CSAPR Provides Greater Visibility Benefits than BART EPA also improperly used a simple arithmetic mean to conclude that vi sibility improvements in the aggregate would be greater under CSAPR than BART per 40 C.F.R. § 51.308(e)(3)(ii). Whether improperly averaging across all the affected Class I areas or doing so in connection

with a state

- by

- state evaluation, relying on an ari thmetic mean is likely to misconstrue progress by heavily weighting outlier results such as large emissions reductions at a single area. In other words, significant improvements in a small number of Class I areas

— even on just a few days each year

— have appa rently skewed EPA‘s averaging to yield a conclusion that visibility is improving notwithstanding lackluster progress in a majority of Class I areas. EPA‘s analysis must correct for this fundamental problem.

EPA Response: The BART rule (§ 51.308(e)(3)(ii )) states that there should be an overall improvement in visibility, determined by comparing the average differences between BART and the alternative

over all affected Class I areas. EPA applied the rule methodology and calculated the average

difference i n visibility improvement ov er all affected Class I areas. As noted in the preamble, we

continue to find that the “ Transport Rule + BART

- elsewhere ” case is better than the “N ationwide

BART ” case for both the 1 4 0 nationwide Class I areas and the 60 Eastern C lass I areas.



### 3. **EPA’s Two Control Scenarios Are Inappropiate**

Commenter: Earthjustice on behalf of a number of organizations
Comment: EPA’s Analysis Fails to Compare the Proper BART Scenario to the Proposed Alternative

EPA’ s analysis suffers from an over arching flaw: it proceeds as if CSAPR were developed only to serve as a BART alternative, ignoring the fact that CSAPR programs will be implemented regardless

of BART. Thus, EPA compared a “ Nationwide BART ” scenario that does not account for any

emissions r eductions due to CSAPR, to the “ Transport Rule + BART elsewhere “scenario, estimating

the emissions in each scenario based on a base case that likewise does not account for CSAPR. Because CSAPR is mandated under § 1 10 of the Clean Air Act, EPA’s “ Nationwi de BART ” scenario is pure fiction; CSAPR and BART will operate simultaneously unless EPA approves this proposal to rely solely on CSAPR.

By failing to take account of any emissio n reductions from CSAPR in the “ Nationwide BAR T” scenario, EPA arbitrar ily a nd unlawfully rewards the “ Transport Rule + BART

- elsewhere ” scenario for accomplishing emission reductions associated with t he status quo, while punishing

“ Nationwide BART ” scenario for failure to keep up with the status quo. [FN 28] Where the

alternative t o BART is itself mandated to meet the requirements of the Clean Air Act, the pertinent question under the reasonable progress test must be whether the mandated program willInternal Review Draft 5/4/2012

Page 47 of 149 achieve more than what is necessary to fulfill its own obligations such that it can achieve better visibility gains in Class I areas than BART. Isolating visibility improvements under CSAPR and making a comparison to improvements from nationwide BART in the absence of CSAPR is an artificial enterprise that ignores the requirements of Cle an Air Act § 110. EPA cannot read either Section 110 or Section 169A out of the statute but must give all statutory provisions their effect.

See TRW , 534 U.S . at 31 (explaining that it is “ a cardinal principle of statutory construction ” that

“ a statute oug ht, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant ” ) (quoting Duncan v. Walker , 533 U.S. 167 (2001); see also United States v. Menasche , 348 U.S. at 538

– 39 (“ It is our duty  ̳to give effect, if possible, to every clause and word of a statute. ” ) (quoting Montclair , 107 U.S. at 152 (1883).

Thus, to correct for the fact that CSAPR is independently required, EPA must compare a

CSPAR

- only scenario to a scenario where BAR T applies in concert with CSAPR as would be the case if EPA abided by the mandate of both programs. This comparison would allow EPA to determine whether BART would achieve aggregate visibility benefits above and beyond what CSAPR will achieve, or whether t he emissions reductions from CSPAR by itself overwhelm any potential incremental benefit from BART

.

The better than BART rule is focused on whether CSAPR can substitute for BART in the CSAPR region, thus BART will always apply in the non

- CSAPR region. Giv en this reality,

emissions reductions from BART in the non

- CSAPR states can be placed in the base case. However, the analysis in these comments simply corrects for the primary flaw, ensuring that

“ Nationwide BART ” is never evaluated in the absence of CSAPR

.

Looking at the emission reductions achieved from applying BART at the sources EPA assume d were subject to BART per the “ Nationwide BART ” scenario and from CSAPR at the sources

EPA assumed we re not subject to BART per the “ Transport Rule + BART

- elsewher e ” scenario, it is highly unlikely that EPA could show that CSAPR provides advantages over CSAPR combined with BART. As the summary table below demonstrates, the correct BART + CSAPR scenario would further reduce NOx emissions by 80,886 tons per year comp a red to EPA’s

“ Transport Rule + BART

- elsewhere ” scenario, while reducing SO 2 emissions by an additional 625,913 tons per year.Internal Review Draft 5/4/2012

Page 48 of 149 [FN 28] Because CSAPR was scheduled to come online at the beginning of 2012, CSAPR reductions are part of the status quo and could have been included in the 2014 base case. However, adding CSAPR to the 2014 base case

could make it difficult to determine wh ether the “Transport Rule + BART

- elsewhere” scenario will cause a decline in visibility over the 2014 base case. Using an artificial base case that does not include CSAPR reductions is thus appropriate to isolate what CSAPR and BART in the CSAPR region eac h incrementally achieve in the way of visibility improvements. Cf. USFS Comments at 14 (“EPA, by analyzing the BART

- alternative emissions as the same emission year relative to the modeled future baseline conditions in the absence of any BART or alternative program control requirements, . . . seemingly creates a guaranteed “no degradation” test.”).

EPA Response: See preamble discussion of EPA’s finding that CSAPR, as was the case for CAIR, is precisely the kind of alternative program that may be consi dered “surplus” under the regional haze rule.



### 4. **Comparison of Earthjustice’s BART+CSAPR Scenario with CSAPR for**

**Minnesota BART Units**

Commenter: Earthjustice on behalf of a number of organizations
Comment:

O n a statewide basis, the alternative BART + CSAPR scenario pr oduces better results than the

“ Transport Rule + BART

- elsewhere ” scenario. For example, the Conservation Organization‘s Technical Sup port Attachment to Earthjustice’ s Comments on the Proposed Approval of the Minnesota State Implementation Plan f or Regional Haze (“ Minnesota Technical Support ” ) [FN 31] compared the subset of BART

- subject EGUs in Minnesota under the Nationwide BART scenario to EPA‘s CSAPR emissions projections for the same units to estimate whether CSAPR alone can accomplish both i ts own goals and those of the regional haze program. [FN 32] Because it is reasonable to assume that CSAPR emissions predictions for non

- BART

- subject

EGUs will be similar under both the CSAPR scenario and the Nationwide BART scenario at

non

- BART eligible s ources, it follows that CSAPR + BART will be better than CSAPR alone if BART provides greater emissions reductions than CSAPR at BART

- subject sources. To this point, Table 3 below demonstrates that BART would result in significantly fewer emissions at

BART

- subject units than the emissions EPA projected for those units under CSAPR.Internal Review Draft 5/4/2012

Page 49 of 149 [FN 31] See Minnesota Technical Support at 18

- 20. Earthjustice‘s comments and the Technical Support Attachment, which were submitted on behalf of National Parks Conservation Association, the Minnesota Center for Environmental Advocacy, the Friends of the Boundary Waters Wilderness, Voyageurs National Park Association, and the Sierra Club, were filed on February 24, 2012 in Docket No. EPA

- R05

- OAR

- 2010

- 0037. Those comments and the Technical Support Attachment are incorporated by reference herein. [FN 32] The Technical Support Attachment recognized the difficulty of predi cting emissions without running the Integrated Planning Model. Nonetheless, this example gives an estimate of whether CSAPR + BART will reduce emissions over CSAPR alone, thereby providing for greater reasonable progress than CSAPR.

EPA Response:

EP A does not find this comparison to be relevant. An appropriate basis for comparison must include the entire EGU population, not just those subject to BART. Moreover, the appropriate comparison is based on an air quality evaluation of the overall visibilit y impacts of the alternative program on affected Class I areas over multiple states, not a comparison of emissions

from selected sources.



### 5. **EPA Did Not Apply SO 2**  **Controls to Units Smaller than 100 MW**

Commenter: Earthjustice on behalf of a number of organi zations
Comment: EPA Unlawfully Assumed that SO 2 BART Controls Would Only Apply to EGUs with Greater than 100 MW Generating Capacity

EPA stated that “ it was assumed that the threshold for BART

- eligibility was 100 MW for SO 2 and 25 MW for NOx and no sourc es were eliminated based on their annual total emissions. Appendix A lists the EGUs that were assumed to be BART

- subject for the purpose of thisInternal Review Draft 5/4/2012

Page 50 of 149 analysis. ” See TSD at 4. In our review of EPA‘s assumed SO 2 emission rates below, it was

assumed that all EGUs listed in Appendix A of EPA‘s Technical Support Document for Demonstration of the Transport Rule as a BART Alternative were as sumed to be BART

- subject

in EPA’ s analysis, as stated in the Technical Support Document and at Appendix A. However, to

the extent that EPA may argue that it only assumed EGUs over 100 MW in generating capacity were subject to BART for SO 2 the application of such a generating capacity threshold is arbitrary and unjustified. The only size limitation on BART

- eligibility is for fossil

- fu el fired steam electric plants, which must have more than 250 million British thermal units per hour heat input, which is approximately equivalent to about 25 MW generating capacity. [FN 37] See CAA §§ 169A(b)(2), (g)(7), 42 U.S.C. §§ 7491(b)(2), (g)(7); see also 40 C.F.R.§51.301 ( defining “ existing stationary facility ” and BART

- eligible source ” ). Nowhere in the statute or the implementing regulations is

BART

- eligibility limited to units less than 100 MW for SO 2 In fact, all visibility impairing pollutants from a source are modeled together to determine whether the source is subject to

BART.

In fact, there are several examples of units of less than 100 MW generating capacity that have been determined to be subject to BART, and that have been required to i nstall SO 2 scrubbers to comply with BART. For example, Silver Bay Boiler 2 in Minnesota, which impairs visibility more than any other BART

- eligible EGU in the state, [FN 38] only has a generating capacity of 69 MW. Silver Lake Unit 4 in Minnesota, which has a generating capacity of 59.2 MW, was also determined to be subject to BART and required to install a scrubber to comply with BART. [FN 39] Martin Drake Unit 6 in Colorado has a generating capacity of 77 MW and was determined to be subject to BART and requ ired to install a new spray dryer to meet BART. [FN 40] Based on the foregoing, it is improper for EPA to impose a 100 MW generating capacity floor on SO2 BART, a flaw that renders EPA‘s Nationwide BART 2014 emissions scenario arbitrary and

unlawful.

[FN 37] Based on an assumed heat rate of 10,000 Btu/kWhr. [FN 38] See December 2009 Minnesota Regional Haze State Implementation Plan, Table 9.2 (at 68), available at http://www.pca.state.mn.us/index.php/air/air

- quality

- and

- pollutants/general

- air

- quality/ minnesota

- regional

- haze

plan.html). [FN 39] Id. Table 9.4 (at 71). [FN 40] See Colorado Visibility and Regional Haze State Implementation Plan for the Twelve Mandatory Class I Federal Areas in Colorado, Approved January 7, 2011, Table 6

- 2 (at 43), availa ble at http://www.cdphe.state.co.us/ap/RegionalHaze/RHSIPFINAL07JAN2011.pdf).

EPA Response: EPA continues to believe that it is unlikely that add

- on controls would be required as BART for

EGU units havin g a capacity less than 100 MW. EPA believes thi s to be an appropriate assumption due to the higher costs of controlling these units, which generally have lower rates of utilization than larger units.

Even if BART

- eligible units less than 100 MW capacity were assumed to be subject to presumptive SO 2 emission limits, emissions reductions from these units would be very small compared to overall emission reductions achieved and would have very little effect on the EPA’s technical analysis. The EPA has included in the docket for this action an inventory of BART

eligible units having a capacity between 25 MW and 100 MW. (Units less than 250 MMBtu/hr

--Internal Review Draft 5/4/2012

Page 51 of 149 approximately 25 MW

-- are not BART

- eligible). In response to this comment, we calculated the

SO 2 emissions under the future 2014 base case, the “Nationwide BA RT” scenario, and the “Transport Rule + BART

- elsewhere” scenario. In the 2014 base case the total SO 2 emissions from these units is about 101,000 tons, which represents a very small fraction, 1.4 percent, of the overall 2014 base case inventory of 7.2 mill ion tons of SO 2 . Under the “Transport Rule + BART

elsewhere” scenario, EPA projected that SO 2 emissions from these units would decline to 46,000 tons, while under the “Nationwide BART” scenario, we projected that SO 2 emissions from these

units would increa se to 124,000 tons or about 3 percent of the more than 3.8 million tons in the

2014 “Nationwide BART” control scenario. (We see emissions increases because under this scenario higher sulfur coal becomes less expensive and thus some switching to higher sulf ur fuel is projected for these small units). If we had applied the presumptive BART limits to each of the units in this inventory (as noted, a very conservative assumption), SO 2 emissions would decrease to about 15,000 tons. This would reduce total SO 2 emi ssions in the “Nationwide BART” case from roughly 3.8 million tons to about 3.7 million tons. Given that SO 2 emissions in the “Transport Rule + BART

- elsewhere” control scenario are about 2.9 million tons, even applying presumptive BART limits to all units between 25 and 100 would still result in nearly 1 million

tons fewer SO 2 emissions under the “Transport Rule + BART

- elsewhere” scenario. Thus, while EPA continues to conclude that it is appropriate to not apply presumptive SO 2 limits to BART

eligible units smaller than 100 MW, the EPA also finds no reason that alternative assumptions would affect our findings or conclusion that the Transport Rule trading programs meet the test for an alternative program to source

- specific BART.



### 6. **Reliance on Presumptive BART**

Commenter: Earthjustice on behalf of a number of organizations
Comment: EPA Discounted the Visibility Improvements in the Nationwide BART Scenario by Relying on Presumptive BART EPA analyzed whether CSAPR is better than BART without conducting individ ual BART determinations for affected coal plants. Instead, the agency assumed that presumptive BART for

SO 2 and NOx represents BART, unless an actual emission rate at a given unit with existing

controls is lower. See 76 Fed. Reg. at 82225; TSD at 4

- 5. Howe ver, as discussed above, pre

existing regulations require EPA to analyze what controls would be imposed as BART at each

BART

- eligible source to be covered by an alternative program. See 40 C.F.R. § 51.308(e)(2)(i)(C); see also Section VII.A., supra . Relyin g on presumptive BART is not consistent with this regulatory requirement. Again, EPA offers no lawful or rational justification for departure from this requirement.

The “ presumptive BART ” emission limits for EGUs included in EPA’ s BA RT Guidelines were

ba sed on EPA’ s broad review of the control technologies and emission limits that could be met cost effectively at a wide range of coal

- fired power plants. See Sections IV.E.4 and 5 of the BART Guidelines in 40 C.F.R. Part 51, Appendix Y. Presumptive limits a re not de facto BART standards; they do not meet the minimum requirements for BART that federal law mandates and do not negate the need for a case

- by

- case five

- factor analysis for each BART source. See Partial Approval and Partial Disapproval of Arkansas R egional Haze SIP, advance not ice of final rulemaking at 21 (“ the RHR and BART Guidelines do not exempt states from a five factor BART analysis ” ). For this reason, EPA recently disapproved Arkansas‘s SO 2 and NOx BARTInternal Review Draft 5/4/2012

Page 52 of 149 determination for AEP Flint Creek Boiler No. 1 and Entergy White Bluff Plant Units 1 and 2, even though the BART determination met the presumptive BART limits. As EPA explained, it was under no obligation to approve presumptive BART where the state had not conducted an individual analysis and the presumptive BART controls did not reflect the best controls available at Arkansas‘s subject to BART sources. See id. at 18

- 67, 79; id. at 23 (“ EPA reiterates that the

RHR and the BART Guidelines make clear that the presumptive limits are rebuttable and may not necessarily be the appropriate level of control for all EGUS. Therefore, EPA is not required to approve every BART determination that meets the presumptive emission limits, especially when there is no analysis that supports the state's decision in adopting the presumptive limit instead of a more or less stringent emission limit. ” ).

Reliance on presumptive BART is not only procedurally improper, it also skews EPA‘s alternatives analysis in favor of CSAPR. Actu al BART determinations are often one half or one third of the presumptive limits, given the demonstrated ability of available air pollution control technology to reduce emissions at increasingly high levels of control efficiency. For example, EPA partially approved Oklahoma‘s SIP and issued a partial FIP for Oklahoma adopting SO 2 BART limits of 0.06 lb/MMBtu for several EGUs, a control that is 60% lower than presumptive BART of 0.15 lb/MMBtu that applies to scrubbed units that achieve less than 95% efficien cy. See 76 Fed. Reg. 81728, 81730 (Dec. 28, 2011) (adopting the 0.06 lb/MMBt u SO 2 limit for Units 4 and 5 of the OG&E Muskogee plant, Units 1 and 2 of the OG&E Sooner plant, and Units 3 and 4 of the AEP/PSO Northeastern plant). For unscrubbed units, presum ing that SO 2 BART limits will be commensurate with installing a scrubber with 95% efficiency likewise underrepresents BART; modern scrubbers today reduce SO 2 emissions by 99%. See Proposed Rule, 76 Fed. Reg. 16168, 16188 (March 22, 2011) (EPA Region 6 part ial approval of Oklahoma SIP; noting that

accord ing to an industry contractor, “ [w]et scrubbing is the predominant technology for large

scale utility applications in most parts of the world ” )

. [FN 42] Similarly, EPA has required emission limits that go beyo nd NOx limits imposed as presumptive BART. Table 2

- 1 in the Technical Support Document sets forth the presumptive BART NOx emission limits based on boiler configuration, and the lowest limit, imposed on cyclone boilers firing bituminous, subbituminous, or lignite coal, was 0.10 lbs/MMBtu. Yet EPA has required San Juan Units 1

- 4

to install SCR and meet a NOx limit of 0.05 lb/MMBtu on a 30

- day operating average. 76 Fed. Reg. 52388, 52388 (Aug. 22, 2011). EPA also has proposed to require SCR to meet BART at

Mi lton R. Young Units 1 and 2 and Leland Olds, to meet a NOx rate of 0.07 lbs/MMBtu on a 30 boiler operating day average. See 76 Fed. Reg. 58570, 58599, 58647 (Sept. 21, 2011). These requirements and limits, which represent BART based on EPA‘s own source

- spe cific analyses, go well beyond EPA‘s presumptive NOx BART limits.

Because sources often are subject or should be subject to BART limits significantly more stringent than presumptive BART limits, reliance on presumptive BART arbitrarily short

changes the visibility benefits that could be realized by installing and operating controls that are genuinely representative of BART. Indeed, EPA‘s own analysis acknowledges the reality that presumptive BART is often less stringent than actual BART

— i.e., EPA did not rely on presumptive BART where actual emissions at a unit with existing controls were lower than presumptive BART.Internal Review Draft 5/4/2012

Page 53 of 149 In addition, source

- specific BART limits take into account the remaining useful life of emission

units. See, e.g., CAA § 169A(g)(2), 42 U.S .C. § 7491(g)(2). For many emission units, owners may choose to retire a source instead of complying with requirements for BART control technologies. In effect, those units would have a BART emission rate of zero not only for SO 2 and NOx but also for direc t PM2.5 and ammonia. EPA completely failed to consider this potential.

For all of these reasons, EPA acted arbitrarily in assuming that presumptive BART would be found adequate where BART determinations have yet to be made. In failing to evaluate BART an d the associated emissions reductions achievable for each source within the CSAPR region subject to BART, EPA arbitrarily and unlawfully discounted the visibility improvement capability of the

source

- specific BART limits that would apply if the five

- factor analyses required by the Clean Air Act were actually undertaken.

Finally, EPA cannot credibly claim that because it broadly applied BART to sources that might not be BART eligible, it overestimated emissions reductions, cancelling out the potential undercounting of emissions reductions stemming from its reliance on pres umptive BART. First, applying limits reflective of actual BART to those units that would be subject to BART might achieve lower overall emissions on a national level than presumptive BART applied to all BART eligible EGUs. See Gebhart Report at 16. Second, if EPA assumed a source was subject to BART that does not in fact cause or contribute to visibility impairment at the Class I areas, and thus should not be subject to BART, any modeled emission reductions at that source would not

result in modeled visibil ity improvements that would weigh in favor of BART. Id.

[FN 42] Other technical sources likewise indicate that modern scrubbers can achieve SO2 reduction efficiencies up

to 99%. See, e.g., Sargent & Lundy LLC, Wet Flue Gas Desulfurization Technology Evalu ation, Project No. 11311

- 001 §§ 1.3.1

- .2, at 10 (May 2006) (explaining that “[r]ecent contracts for LSFO [Limestone Forced Oxidation or conventional wet scrubber] technology in the US market have included guarantees of 99%,” and that “MEL [Magnesium Enhanc ed Lime] forced oxidation systems have achieved a better level of performance than the LSFO process, with SO2 removal efficiencies between 98% and 99% in power plants also firing a variety of high

- and

low

- sulfur coals”) [Attachment 3]; Kevin Smith, Willia m Booth, & Stephane Crevecoeur, Evaluation of Wet FGD Technologies to Meet Requirements for Post CO2 Removal of Flue Gas Streams, Mega Paper No. 49 (2008) [Attachment 4]; Chuck Dene, Lesley A. Baker & Robert J. Keeth, FGD Performance Capability, Mega Paper No. 62 (2008) (identifying several technologies that have achieved or are capable of achieving 99% SO2 control) [Attachment 5]. We also incorporate by reference the discussion of concerning high efficiency scrubbers, pages 54

- 56, included in Earthjustice‘ s comments filed on behalf of the Sierra Club, the National Parks Conservation Association, and the Clean Air Council on the Approval and Promulgation of Air Quality Implementation Plans Commonwealth of Pennsylvania; Regional Haze State Implementation Plan Proposed Rule, 77 Fed. Reg. 3984 (Jan. 26, 2012), Docket ID Number EPA

- R03

- OAR

- 2012

- 0002, filed Feb. 27, 2012 and any supporting materials filed

therewith.

Commenter: Earthjustice/Texas

Comment: EPA Failed to Demonstrate That CSAPR is better than BART because its Modeling and Assumptions are Flawed Setting aside the fact that the alternative program provisions in the RHR do not comply with the statutory exemption requirements, as stated above, EPA ’s reliance on CSAPR as an alternative to BART is likewise unsupportable because of insurmountable flaws in EPA’s modeling and the assumptions underlying the modeling. In order for a trading program such as CSAPR to be “better than BART,” and where, as her e, the distribution of emissions under the alternative willInternal Review Draft 5/4/2012

Page 54 of 149 be substantially different than under BART, dispersion modeling must demonstrate that (1) visibility under the BART

- alternative would not decline in any Class I area, and (2) the BART

alternative would result in overall visibility improvement “by comparing the average differences between BART and the alternative over all affected Class I areas.” 40 C.F.R. § 51.308(e)(3).

As explained below, EPA’s modeling skews the analysis in favor of CSAPR as a BART alternative in a number of important respects, including the following two examples. First, EPA’s modeling is flawed because it models the emission reductions of presumptive BART which, based on recent determinations has been 2 to 3 times higher than appropriate, unit specific BART determinations based on the required five step BART analysis. See id. §51.308(e)(1)(ii)(A). The modeling thus underestimates the visibility benefits of BART.

Commenter: Kristin A. Henry, Sierra Club
Comment: EPA significant ly discounted the improvement that would be seen under a nationwide BART scenario by failing to model emission limits that actually reflect BART. EPA, instead, relied on outdated presumptive BART limits that fail to account for significant advances in air pollution control technologies that have prompted the agency itself to impose far more stringent BART determinations. In many cases, EPA did not calculate presumptive BART in the manner it described, and instead arbitrarily used limits that far exceed the already lax presumptive BART.

According to EPA’s regional haze regulations, when making a determination as to whether to implement an emissions trading program or other alternative measure rather than require sources subject to BART to install, operate, a nd maintain BART, a state must conduct “an analysis of the best system of continuous emission control technology available and associated emission reduction achievable for each source subject to BART and covered by the alternative program.” 40 C.F.R. § 510 8(e)(2)(i)(C). Specifically, “[t]his analysis must be conducted by making a

determination of BART for ea ch source subject to BART ... ” Id. (emphasis added). In other words, BART is a unit specific determination. BART controls and emission levels at BART

elig ible sources are determined not simply by setting them to be equal to their presumptive BART emission levels but by following a detailed case

- y

- case five

- step analysis process specified in the BART regulations. See 40 C.F.R. 50 (App. Y (V)(II)(A)).

Howe ver, in its dispersion modeling which EPA conducted to compare differences in visibility between BART and CSAPR, EPA took a shortcut and, instead of actual unit

- specific BART, used presumptive BART limits to model the visibility benefits of BART controls (unless actual emissions at an EGU were lower than presumptive BART). 76 Fed. Reg. 82219, 82225. That is, for SO2, EPA assumed that BART controls at a modeled EGU would reflect use of a scrubber achieving 95% scrubber control efficiency or 0.15 lb/MMBtu. 70 Fed. Reg. 39104, 39131. For NOx, EPA assumed that BART controls at a modeled coal

- fired EGU in Indiana would achieve anywhere between 0.23 to 0.45 lb/MMBtu, based on coal type and boiler c onfiguration. See 70 Fed. Reg. 39104, 39135. This application of presumptive BART is improper. Presumptive BART limits are not de facto BART standards; they do not meet the minimum requirements for BART that federal law mandates and do not negate the need for a case

- by

- case five

- factor analysis for each BART source. In addition, reliance on presumptive BART is not onlyInternal Review Draft 5/4/2012

Page 55 of 149 procedurally improper, it also skews EPA’s alternatives analysis in favor of CSAPR in that the presumptive BART limits used in its modeling are outdated.

As a result, EPA’s modeling, which employs presum ptive BART limits, underestimates the visibility benefits of the Haze Rule’s BART requirements. BART controls today often achieve far lower emissions rates than the presumptive BART rates used by EPA in its modeling. In fact, for several BART analysis that have been conducted for coal

- fired EGUs in the Western United States (i.e., in non

- CAIR, non

- Transport Rule, and non

- CSAPR states) in recent years, actual BART controls and emission levels are more stringent than the corresponding presumptive

BART emissio n levels. For instance, recent BART analyses have found that existing EGUs with dry and wet scrubbers typically achieve SO2 rates as low as 0.06 lb/MMBtu. See 76 Fed. Reg. 81728, 81743. In fact, EPA recently set a BART limit of 0.06 lb/MMBtu SO2 based on a rolling

30

- day average for six coal fired units in Oklahoma. See 76 Fed. Reg. 81728, 81729 (Dec. 28, 2011) (codified at 40 CFR Part 52). Similarly, existing SCR controls can achieve NOx rates as low as 0.05 lb/MMBtu. See 76 Fed. Reg. 52388, 52389. Notably , these rates are far below the presumptive BART limits used by EPA in its “better than BART” analysis. 76 Fed Reg. 82219, 82225. What is more, even the aforementioned 0.06 SO2 lb/MMBtu and 0.05 NOx lb/MMBtu levels are not the most stringent levels achiev able by current pollution reduction technologies.

Obviously, EPA’s use of presumptive BART as a shortcut in its “better than BART” modeling underestimates the emissions reductions from actual BART controls and the resulting visibility

benefits of BART at Class I areas.[Fn 14] There is no legally

- defensible basis for EPA to use a shortcut that significantly underestimates the visibility benefits of BART, as EPA’s presumptive BART approach does here.[FN 15] EPA must instead conduct actual, realistic EGU

- spec ific BART determinations to serve as the basis for its “better than BART” modeling. Only by comparing actual BART with CSAPR could EPA make the requisite finding that CSAPR is better than BART, as required by the Haze Rule. See 40 C.F.R. § 51.308(e)(2) & ( e)(3).

[FN 14] Although Sierra Club cannot positively state that the unit

- specific BART emission limits for all coal

- fired EGUs in Indiana would necessarily be 0.06 lb/MMBtu for SO2 or 0.04 lb/MMBtu for NOx, we are saying that especially considering the r adical discrepancy between CSAPR emission rates and the Oklahoma BART emission limits, it would be arbitrary for EPA to assume that BART emission limits for these states’ EGUs would be presumptive BART. [FN 15] In, Center for Energy and Economic Developmen t v. Environmental Protection Agency, 398 F.3de 653, 660 (D.C. Cir. 2005), the Court mandated that EPA would need to do an individual BART determination for each source in the state and then determine that CSAPR imposed a more stringent emission on that in dividual source than the

individual BART determination. See also American Corn Growers Association v. Environmental Protection Agency, 291 F.3d 1, 14

- 24 (D.C. Cir. 2002).

Commenter: Earthjustice/Texas
Comment: EPA’s Modeling Underestimates the Visibility Benefits of BART by Using Presumptive BART,

Rather Than Actual BART EPA’s modeling underestimates the visibility benefits of the RHR’s BART requirements. EPA used presumptive BART limits to model the visibility benefits of BART controls at EGUs,

unless ac tual emissions at an EGU were lower than presumptive BART. 76 Fed. Reg. at 82225. 16 Thus, for SO 2 , EPA assumed that BART controls at an EGU would reflect use of a scrubber achieving 95% scrubber control efficiency or 0.15 pounds per million Btu (lb/MMBtu). Id. AtInternal Review Draft 5/4/2012

Page 56 of 149 82225

– 26. And for NOx, EPA assumed that BART controls at an EGU would achieve from 0.10 to 0.62 lb/MMBtu, based on coal type and boiler configuration. Id. at 82226.

However, these presumptive BART limits are outdated. Appropriate BART controls wou ld achieve far lower emissions rates than presumptive BART. As EPA Region 6 has explained, BART generally requires greater emission controls than presumptive BART because “[c]ontrols achieving more than the SO 2 and NOx presumptive limits are available.” 76 Fed. Reg. 64186, 64203 (Oct. 17, 2011). Specifically, Region 6 noted that existing EGUs with dry and wet

scrubbers achieve SO 2 rates as low as 0.06 lb/MMBtu, and existing SCR controls can achieve NOx rates as low as 0.04 lb/MMBtu, which are far below the presumptive BART limits used by

EPA here. Id. EPA’s use of presumptive BART as a shortcut in its “better than BART” modeling underestimates the emissions reductions from BART controls and the resulting visibility benefits

of BART at Class I areas.

EPA sho uld have conducted actual EGU

- specific BART determinations to serve as the basis for its “better than BART” modeling. Only then could EPA ensure that CSAPR is better than BART, as the RHR requires. See 40 C.F.R. § 51.308(e)(2) & (e)(3). There is no legally defensible basis for EPA to use a shortcut that significantly underestimates the visibility benefits of BART, as EPA’s presumptive BART approach does here.

EPA Response:

The EPA continues to believe that assuming application of presumptive limits over a broad region is a reasonable and appropriate method for estimating the emissions reductions from application of BART. EPA disagrees that it is necessary to conduct an EGU

- specific analysis for

each BART

- eligible EGU. Such an analysis is not feasible or necessary, and even if conducted would produce results that would be uncertain and speculative.



### 7. **Need for Correction of EPA Assumptions for Gerald Gentleman Unit 2**

Commenter: Earthjustice on behalf of a number of organizations

Comment:

EPA Must Model t he Visibility Improvement Expe cted By Applying BART at Gerald

G entleman Unit 2 in Nebraska EPA acknowledged that it inadvertently omitted Gerald Gentleman Unit 2 from the inventory of

BART

- eligible units under the Nationwide BART emissions scenario. See T SD at 10 n.9. As a result, instead of applying BART controls at the unit, EPA assumed the unit would continue emitting at its current, uncontrolled SO 2 emission rate. Had EPA applied BART SO 2 controls at this unit, EPA itself estimated that the SO 2 emissio ns for Nebraska would be about 12,000 tons

lower under the “N ationwide BART. ” Id. Inexplicably EPA did not expect this omission to change the outcome of its analysis even though emissions from Gerald Gentleman affect visibility at Badlands National Park [F N 43] and Wind Cave National Park, [FN 44] parks where

Table 1 above shows that BART is outperforming CSAPR in visibility improvement. With an additional 12,000 tons of SO 2 reductions, it is likely that the differences between CSAPR and

BART at Badlands an d Wind Cave National Parks would be even more pronounced, potentially changing whether CSAPR is better than BART in Nebraska. See Section VII.A, supra . For example, with the 12,000 ton reduction of SO 2 , EPA’ s estimate of the emissions in Nebraska

under the Nationwide BART scenario would have been 36% lower than modeled in the rule. [FNInternal Review Draft 5/4/2012

Page 57 of 149 45] Likewise, with these reductions, the SO 2 emissions in Nationwide BART scenario for Nebraska would have been 71% lower than EPA‘s projected SO 2 emissions in the CSAPR +

BART

- elsewhere scenario. [FN 46]

Moreover, if EPA had applied NOx controls to Gerald Gentleman Unit 2, Nebraska‘s NOx emissions would be at least 3,100 tons per year less (reflective of the NOx emission reductions expected at presumptive NOx BART rate of 0.23 lb/MMBtu for the wall

- fired, dry bottom boiler that burns subbituminous coal) and more likely 7,700 tons less (reflective of application of SCR to achieve a NOx rate of 0.05 lb/MMBtu 0.05 lb/MMBtu). Under either scenario, NOx emissions

for Nebraska w ould be well below the NOx emission projections in the CSPAR + BART

elsewhere scenario, making it likely that in Nebraska CSAPR is not better than BART. EPA must revise its modeling to account for reductions in emissions at Gerald Gentleman.

[FN 43] See T able 10.3 of the Nebraska Department of Environmental Quality State Implementation Plan for Regional Haze and Best Available Retrofit Technology (BART), June 30, 2011, at 40, available at http://www.deq.state.ne.us/AirDivis.nsf/Pages/Haze. Specifically, th e 98th percentile visibility contribution from Gerald Gentleman Station at Badlands National Park ranged from 2.828 to 3.121 deciviews. Id. [FN 44] Id. at 62. [FN 45] This was determined by subtracting 12,000 tons from the Nationwide BART SO2 projection f or Nebraska
of 32.9 thousand tons of SO2 in Table 2

- 4 of the TSD. [FN 46] This was determined by comparing a revised projection for Nebraska sources under BART of 20,900 tons (i.e., 32,900 tons

– 12,000 tons) to EPA‘s projected SO2 emissions under CSAPR o f 71,200 tons in Table 2

- 4 of the

TSD.

EPA Response:

The EPA disagrees that this emissions discrepancy, which represents less than 0.5 percent of the regional emissions, would require a complete re

- analysis. It is reasonable to conclude that, given

th e substantial emissions and air quality difference between the results in the two scenarios, that this discrepancy would not change the EPA’s finding.



### 8. **Incorrect Application of EPA’s Presumptive Limits**

Commenter: Kathyrn M. Amirpashaie/Sierra Club

Comment: EPA Arbitrarily Did Not Follow Its Own Method of Applying Presumptive BART Putting aside the problem that it is arbitrary and unlawful to rely on presumptive BART, which in itself fatally undermines EPA‘s analysis, EPA failed even to properly app ly presumptive BART at many BART

- eligible units in the CSAPR states. In these instances, EPA modeled emissions limits that were far greater than the already overestimated presumptive BART values. This failure to properly apply presumptive BART calls into q uestion the accuracy of EPA‘s

modelin g and renders its analysis and “ better than BART ” conclusion arbitrary. Moreover, a review of the modeling assumptions that EPA actually used demonstrates that CSAPR is wrongly projected to achieve greater reductions at BART

- eligible power plants than imposition of properly calculated presumptive BART limits.

In the preamble for the proposed rule and the accompanying Technical Support Document, EPA purports to apply, with respect to EGUs with scrubbers, a presumptive S O 2 BART limit that reflects either the emissions limit actually achieved if the scrubber operated at 95% efficiency orInternal Review Draft 5/4/2012

Page 58 of 149 0.15 lbs/MMBtu. If the scrubber was operating at 95% or higher efficiency, EPA said it relied on the actual emission rate achieved, even if greater than 0.15 lbs/MMBtu. Conversely, if the scrubbed achieved an emission rate of 0.15 lbs/MMBtu or lower, that rate was used even if the
scrubber was less than 95% efficient. For BART

- eligible units operating without a scrubber,

EPA stated that it would apply a presumptive BART limit that reflected 95% control based on installation of a highly efficient scrubber. See 76 Fed. Reg. at 82225

- 26; TSD at 4

- 5.

At the national level, examples of EPA‘s failure to properly and consistently model presumptiv e BART were selected by identifying all BART

- eligible units where the SO 2 emission rate

modeled in EPA’s “ Nationwide BART ” scenario was greater than 0.30 lb/MMBtu ( i.e. double the presumptive BART floor) and where the historic emission rate, as reported in Clean Air Markets Database ( CAMD) for 2010 or 2011, was less than the emission rate modeled.

This provides a subset of the most egregious instances of EPA‘s failure to apply presumptive BART uniformly. Other examples exist throughout the model.

As set forth in greater detail in the accompanying Tables 2

- 1 to 2

- 4, EPA failed to properly calculate presumptive BART at a number of units that include scrubbers. For example, at the following scrubbed units that are achieving 95% efficiency, EPA failed to mode l the actual SO 2 emission rate.

50 The SO2 emission rate used in the Nationwide BART was calculated from the data in EPA‘s National BART 2014 spreadsheet by dividing the Total SO2 Emissions (MTons) by the Total Fuel Use (TBtu) and converting to

lb/MMBtu. See EPA‘s National BART 2014 spreadsheet, available at http://www.epa.gov/visibility/actions.html.

51 The tons of SO2 modeled in the Nationwide BART scenario are reported in EPA‘s National BART 2014 spreadsheet, available at http://www.epa.gov/visibility/ actions.html.

52 The 2010 SO2 emission rate was calculated from the data reported on CAMD by dividing the Total SO2 Emissions by the Total Fuel Use and converting to lb/MMBtu. 2010 data was used for each unit in the chart except for Kenneth C Coleman C3, a s described in more detail in footnote 54, infra

. 53 For units operating a scrubber at 95% efficiency, the properly calculated presumptive BART was determined, as EPA purported to do, by applying the actual emission rate to the heat input assumed in EPA‘s Nationwide BART modeling scenario.Internal Review Draft 5/4/2012

Page 59 of 149 54 For Kenneth C Coleman C3, the emission rate was calculated using 2011 data. Using 2010 annual coal feed, coal heat content and coal sulfur content reported in EIA Form

- 923 along with AP

- 42 emission factor [(38 *S lb S O2/ton of coal) * (tons of coal) * (2000 lb/ton)], where S = fuel sulfur content, for wall

- fired boiler firing bituminous coal, annual uncontrolled 2010 SO2 emissions were calculated to be 27,347 tons SO2 with an emission factor of 4.67 lb

SO2/MMBtu. EPA C AMD reported annual SO2 emissions of 2,607 tons SO2 at an emission rate of .43 lb SO2/MMBtu which represents a RE of 90.5% [(27347

- 2607)/27347)]. If the RE had been 95%, actual reported emissions would have been 1,367 tons SO2 [(1

- .95)*27347] and an emissi on rate of 0.23 lb SO2/MMBtu. The 2011 reported emission rate for Kenneth Coleman C3 was 0.26 lb SO2/MMBtu which closely approximates operation with a 95% SO2 RE. Although emissions estimates made using AP

- 42 emission factors have be prone to some error,

i f the error in the AP

- 42 estimate were a 10% low bias, and actual emissions were 30,082 tons, then an emission of 2,607 tons would be yielded by 91.3% RE. In either case, Kenneth Coleman C3 did not achieve 95% RE in 2010.

Likewise, for the following scr ubbed unit, which is achieving less than 95% efficiency, EPA failed to model an emission rate that reflected the actual emission limit, which was less than 0.15 lbs/MMBtu. As further support for the argument that presumptive BART does not reflect best

avai lable controls, the limit applied as presumptive BART, 0.30 lbs/MMBtu, exceeds actual

historic emissions.

55 The SO2 emission rate used in the Nationwide BART was calculated from the data in EPA‘s National BART 2014 spreadsheet by dividing the Total SO2 Emissions (MTons) by the Total Fuel Use (TBtu) and converting to

lb/MMBtu. See EPA‘s National BART 2014 spreadsheet, available at http://www.epa.gov/visibility/actions.html.

56 The tons of SO2 modeled in the Nationwide BART scenario are reported in EPA’s “National BART 2014 Unit Specific Result” spreadsheet, available at http://www.epa.gov/visibility/actions.html.

57 The 2010 SO2 emission rate was calculated from the data reported on CAMD by dividing the Total SO2 Emissions by the Total Fuel Use and conve rting to lb/MMBtu.

58 For the scrubbed unit that is less than 95% efficient, but that is achieving an emission rate less than 0.15 lb/MMBtu, the properly calculated presumptive BART was determined, as EPA purported to do, by applying the

actual emission r ate to the heat input assumed in EPA‘s Nationwide BART modeling scenario.

Finally, at the following non

- scrubbed units in the CSAPR states, EPA applied emissions limits

for SO 2 that are greater than would be achieved by applying a scrubber with 95% efficiency. Not only do the modeled BART emissions limits depart from the promised presumptive BART values, the modeled BART emission limits exceed actual historic emissions rates for either 2010 as deduced from reported emissions and heat input in CAMD. Likewise, the emissions limits EPA applied far exceed the limits that would be obtained if the source was required to use a highly effective scrubber, achieving 99% reduction efficiency

. See Section VII.C.2, supra

.Internal Review Draft 5/4/2012

Page 60 of 149 59 From EPA‘s CSAPR+BART 2014 spreadsheet, available at http://www.epa.gov/visibility/actions.html.

60 From EPA‘s National BART 2014 spreadsheet, available at http://www.epa.gov/visibility/actions.html.

61 Properly calcu lated presumptive BART is described for each type of unit as above, scrubbed units with a reduction efficiency of 95% or greater ( see footnote 53, supra ), scrubbed units with a reduction efficiency of less than 95% yet achieving an emission rate less than 0.15 lb/MMBtu ( see footnote 58, supra ), or unscrubbed units ( see footnote 61,

supra ).

62 For the unscrubbed units, projected BART is calculated by applying a scrubber achieving 99% reduction efficiency. See Section VII.C.2 & n.42 supra . For the scrubbed units, projected BART conservatively assumes the historic achieved emission rate as applied to the heat input EPA assumed in the Nationwide BART scenario. Thus, it is the same as the “Properly Calculated Presumptive BART ” for the scrubbed units, as describ ed in footnotes 53 & 58, supra

.Internal Review Draft 5/4/2012

Page 61 of 149 64 From EPA‘s CSAPR+BART 2014 spreadsheet, available at http://www.epa.gov/visibility/actions.html.

65 From EPA‘s National BART 2014 spreadsheet, available at http://www.epa.gov/visibility/actions.html.

66 Properly c alculated presumptive BART is described for each type of unit as above, scrubbed units with a reduction efficiency of 95% or greater ( see footnote 53, supra ), scrubbed units with a reduction efficiency of less than 95% yet achieving an emission rate less t han 0.15 lb/MMBtu ( see footnote 58, supra ), or unscrubbed units ( see footnote 61,

supra ).

67 For the unscrubbed units, projected BART is calculated as described in footnote 62, supra, by applying a scrubber achieving 99% reduction efficiency. See Section VII.C.2 & n.42 supra . For the scrubbed units, projected BART conservatively assumes the historic achieved emission rate as applied to the heat input EPA assumed in the Nationwide BART scenario. Thus, it is the same as the “ Properly Calculated Presumptive B ART ” for the scrubbed units, as described in footnotes 53 & 58, supra

. 68 EPA has classified this unit in the CSAPR + BART spreadsheet as “Coal Withdrawn as Uneconomic ” and included no heat input or SO 2 emissions. See EPA‘s CSAPR+BART 2014 spreadsheet, available at http://www.epa.gov/visibility/actions.html.

The consequences of EPA’ s failure to properly apply SO 2 presumptive BART become particularly apparent when EPA’ s conc lusion that CSAPR is “ better than BART ” is tested within individualInternal Review Draft 5/4/2012

Page 62 of 149 states, as seen in particular in Minnesota, where commenters have had the opportunity to undertake in depth analysis. As explained in the Technical Support Attachment to Comments of Conservation Organizations on the Minnesota Regional Haze SIP, EPA modeled SO2 emissi ons limits higher than presumptive BART in several instances. For example, EPA modeled Austin Northeast at 1.05 lb/MMBtu, Hoot Lake Unit 3 at 1.49 lb/MMBtu, and Silver Bay Boiler 2 at 1.00 lb/MMBtu, but because none of these units have scrubbers, EPA shoul d have assumed SO2 emission rates reflecting 95% control. If EPA‘s assumed SO2 emission rates for these three EGUs reflected 95% control, then the uncontrolled SO2 emission rates of the coal would range

from 20 to 30 lb/MMBtu which is not credible. These u nits all burn only subbituminous coal, [FN 69] which is typically low sulfur coal. In fact, the EPA‘s assumed emission rates for Hoot Lake Unit 3 and Silver Bay Boiler 2 not only reflect uncontrolled emissions but also are significantly higher than actual h istorical emission rates. Over 2003

- 2011, the highest annual average SO2 emission rate at Hoot Lake Unit 3 was only 0.71 lb/MMBtu according to CAMD, but EPA modeled the unit based on an SO2 emission rate of 1.49 lb/MMBtu. Had EPA truly followed its
purport ed methodology in its Nationwide BART emissions projections, it should have assumed 95% reductions, which would have resulted in much lower emission rates than EPA actually used in its emission projections.

In addition, EPA assumed an SO 2 rate for the un scrubbed Taconite Harbor Unit 3 of 0.22

lb/MMBtu. [FN 70] At maximum, the unit had an annual average SO 2 rate of 0.67 lb/MMBtu over the last nine years. [FN 71] Thus, if EPA were to apply presumptive BART limits to Taconite Harbor Unit 3, it should have as sumed an SO 2 emission rate reflecting 95% control at that unit. Instead, EPA inexplicably assumed an SO 2 emission rate of 0.22 lb/MMBtu. For Clay Boswell Unit 4, EPA assumed an SO 2 emission rate of 0.15 lb/MMBtu. However, Boswell Unit 4 has a wet scrubber, as indicated in EPA‘s National BART 2014 spreadsheet, and CAMD data shows that the unit is actually achieving lower SO 2 emission rates than 0.15 lb/MMBtu. In 2010

- 2011, the annual average SO 2 emission rate at the unit ranged from 0.10 to 0.05 lb/MMBtu.

Ne vertheless, EPA assumed an SO 2 BART rate of 0.15 lb/MMBtu, which was inconsistent with what EPA purported to assume ( i.e. , presumptive BART levels unless actual emissions were lower).

Likewise, a review of EPA‘s assumed SO 2 emission rates in its 2014 Nati onwide BART

emissions scenario for BART

- eligible units in Missouri shows that EPA did not consistently apply this methodology to all BART

- eligible units. Missouri has 21 BART

- eligible EGUs, and

all but one of the units have no SO 2 scrubbers, according to C AMD. Because these units were

uncontrolled for SO 2 (Iatan Unit 1 was uncontrolled through 2007), data from CAMD from 2003

to 2010 will reveal the maximum historical uncontrolled SO 2 emission rate. Using an uncontrolled emission rate equal to the high annua l emission rate from 2003

- 2010, it is possible to calculate the approximate SO 2 removal efficiency that EPA should have assumed in its Nationwide BART 2014 scenario, as shown below.

For the fifteen units in Missouri with projected SO 2 emission rates of 0 .15 lb/MMBtu or less, EPA

assumed SO 2 rates in the Nationwide BART 2014 scenario ranging from 0.06 lb/MMBtu to 0.15

lb/MMBtu. [FN 72] However, the SO 2 removal that these projected emission rates reflected ranged from a low of 76% to a high of 96%, with the average SO 2 removal efficiency being 88%. Thus, if EPA assumed an uncontrolled emission rate equal to the high annual emission rate from 2003

- 2010,Internal Review Draft 5/4/2012

Page 63 of 149 EPA did not assume SO 2 rates in the BART scenario of 95% control at units with no scrubbers in

Missouri.

F or thr ee other units in Missouri, EPA’ s projected SO 2 emissions under the Nationwide BART scenario only reflected 5% to 48% SO 2 removal from historical maximum uncontrolled SO 2 emission rates. And ther e are three units for which EPA’ s SO 2 emission rates wi th BART applied

no SO 2 controls and instead reflected increases in SO 2 emission rates of 17% to 70%, as seen in

the table below.

[FN 69] Footnote 69: See EPA‘s National BART 2014 Spreadsheet, Columns regarding Total Subbituminous Fuel

Use and Total Bitumi nous Fuel Use. [FN 70] The Minnesota Pollution Control Agency (“MPCA”) has adopted as BART the requirement to install Rotating Opposed Fired Air (“ROFA”)/Rotomix system that includes Furnace Sorbent Injection for SO2 control.

See MPCA BART Determination for Minnesota Power Taconite Harbor Unit 3 in Appendix 9.4 of the Minnesota Regional Haze Plan at 910. However, it does not appear that these controls have been installed yet at Unit 3. CAMD does not indicate any scrubber or other SO2 controls installed at Taconite Harbor Unit 3, nor have SO2 rates declined in recent years to indicate application of SO2 controls. [FN 71] Based on a review of SO2 emission rates from CAMD for 2003

- 2011. FN 72] The assumed SO2 emission rate was calculated from the data in EPA ‘s National BART 2014 spreadsheet by dividing the Total SO2 Emissions (MTons) by the Total Fuel Use (TBtu) and converting to lb/MMBtu.Internal Review Draft 5/4/2012

Page 64 of 149 As shown by the above table, EPA did not always project SO2 emissions under BART for

unscrubbed units based on 95% SO 2 removal in Missouri. EPA did not even assume that

scrubbers would be installed at several unscrubbed BART

- eligible units in its SO2 BART emission projections.

In addition, at Fair Station in Iowa, if EPA assumed an uncontrolled emission rate equal to t he high annual emission rate from 2003

- 2010, EPA assumed an SO 2 emission rate of 0.95 lb/MMBtu in its Nationwide BART scenario, which reflects only 82% SO2 removal from the unit‘s maximum annual average uncontrolled SO 2 rate from 2003 to 2010. Likewise, based on the same assumptions, for Big Cajun 2 in Louisiana, both units burn the same low sulfur coal, have no scrubbers, and emit SO2 at a maximum uncontrolled rate of 0.77 lb/MMBtu. Yet, in its Nationwide BART scenario, EPA projected SO 2 emissions for Bi g Cajun 2 Unit 1 at 0.08 lb/MMBtu and for Big Cajun 2 Unit 2 at 0.58 lb/MMBtu, reflecting 89% control for Unit 1 and only 25% control for Unit 2. Finally, in Kentucky, EPA assumed Robert Reid Unit 1 would emit

SO 2 at a rate of 4.28 lb/MMBtu in the Nationwi de BART scenario. This emission rate reflectsInternal Review Draft 5/4/2012

Page 65 of 149 historical uncontrolled SO 2 emission rates at the unit from 2003 to 2010. Thus, for this unit, EPA assumed no control equals BART.

As all of the above examples make clear, EPA‘s projections of SO 2 emissions f or BART

- eligible sources did not reflect the assumptions that EPA claimed to have made in its Technical Support

Document.

EPA‘s treatment of Minnesota sources in its alternatives analysis is also illustrative of EPA‘s failure to properly apply presumptiv e NOx BART. The presumptive NOx BART limits vary with coal type and boiler configuration. If a source had existing NOx controls, EPA assumed those controls would be operated year round. If those controls did not meet presumptive BART limits,

EPA would assu me installation of post

- combustion controls, such as selective catalytic reduction ( SCR) or sele ctive non

- catalytic reduction ( SNCR) that would meet the BART guidelines. The limits are as follows ( see TSD at 5):

Given this purported methodology for pro jecting NOx emissions under BART, EPA should have assumed installation of an SCR at Sherburne County Units 1 and 2 in Minnesota. These units have already installed combustion controls, but the units have failed to meet the 0.15 lb/MMBtu presumptive BART li mits for tangential

- fired boilers burning subbituminous coal. According to actual annual emissions data from CAMD, the units have averaged 0.18 lb/MMBtu NOx rates on
an annual basis in 2009

- 2011. In instances where installed combustion controls do not meet presumptive BART limits, EPA represented that it would assume post

- combustion controls (SCR or SNCR) would be installed. [FN 73] However, EPA did not assume the Sherburne County Units 1 and 2 would be retrofitted with post

- combustion controls. Had EPA proj ected BART emissions in the manner it purported, it should have projected NOx emissions for Sherburne County Units 1 and 2 at 0.05 lb/MMBtu. [FN 74]

Similarly, Northshore Mining‘s Silver Bay Boiler 2 was not projected to meet the presumptive

NOx BART lim it of 0.23 lb/MMBtu for wall

- fired subbituminous coal

- fired boilers with combustion controls. Instead, MPCA found the unit could only meet a NOx rate of 0.40

lb/MMBtu with combustion controls . [FN 75] Thus, according to EPA‘s methodology, EPA

should have a ssumed installation of post

- combustion NOx controls for this unit, but EPA did not do so. Given that the Silver Bay power plant causes more visibility impairment to the Boundary Waters Class I area than any other coal

- fired power plant in Minnesota 76 and g iven that installation of SCR would be cost effective at the unit, a proper NOx BART determination for

the unit would have resulted in a NOx BART limit of 0.05 lb/MMBtu.Internal Review Draft 5/4/2012

Page 66 of 149 By improperly applying presumptive NOx BART limits at these units, EPA‘s Nationwide BART scenario includes 5,385 tons more NOx emissions in Minnesota than it should. Correcting for presumptive BART at these units would result in the Nationwide BART scenario producing 7,294 fewer tons of NOx from these plants than the CSAPR scenario.

In sum, failure to apply presumptive BART in the manner stated in the preamble and the Technical Support Document is both arbitrary and consequential, fatally und ermining the credibility of EPA’ s analysis. By failing to apply presumptive BART, which is too we ak in any case, with any uniformity, EPA arbitrarily discounted the emissions achieved in the BART

scenarios.

[FN 73] Footnote 73 See TSD at 5. [FN 74] Footnote 74 See Letter from Soug Aburano, U.S. EPA Region 5 to John M. Seitz, Chief, Minnesota

Pollution Control Agency at 2 (June 6, 2011) (finding that SCR could be applied at Xcel Energy‘s Sherburne County facility) [Attachment 6]; See also National Park Service‘s October 3, 2009 Comments Entitled “Xcel Energy‘s Sherburne County Generating Station (SHERCO ) MPCA 5/19/09 report and Subsequent Response to Comments” in Appendix 2.5 of Minnesota Regional Haze SIP at 377. [FN 75] Footnote 75 See MPCA BART Determination for Northshore Mining Silver Bay Power Boiler 2, in Appendix 9.4 of Minnesota Regional Haze pl an at 848.

EPA Response: EPA disagrees with this commenter’s assertion that we misapplied the presumptive BART

limits. Table 1 below tabulates the units included in Tables 4, 5, 6, 7, 8 and additional units in

Minnesota included in the Earthj ustice com ments. These units are all BART

- affected (except one that is identified as BART

- unaffected) and appropriately modeled in the respective scenarios, except one unit that was not modeled with the required BART limits due to modeling software

limitations.

Most of the units are under 100 MW and modeled as BART unaffected for SO2. See RTC

section VI.D above for a discussion of why EPA’s presumptive limits have different assumptions

for units smaller than 100 MW.

Other units achieve an emission rate of 0.15 lb/MMBtu (or less ) or 95% (or higher) removal efficiency, complying with BART p resumptive limits. Among those, three units are projected to be operating with existing scrubbers with 95% removal efficiency and us ing coal with higher sulfur content than historic values may suggest. The commenter makes calculations and comparisons based on the historic emissions in 2010 which is a function of the sulfur content of the fuel used and the level of dispatch occurred in 2010. In 2015, in the Nationwide BART run we project these units dispatching with a higher sulfur content coal.

One unit is projected to retire and one unit is identified as BART unaffected. One unit (Dickerson 3) was not fully modeled as BART affected due to modeling software limitations. EPA's modeling software was not able to impose BART requirements fully on this unit. This unit has an existing scrubber that would operat e with 95% removal efficiency. Our modeling assumed a "partial retrofit" operatio n, meaning only a portion of the emissions were subjected to 95% removal, and remainder of the emissions were assumed to be by

- passed, resulting in an overall removal efficiency of 73.7% for this unit (Dickerson Unit 3). If this unit was modeled correctlyInternal Review Draft 5/4/2012

Page 67 of 149 achieving 95% removal efficiency for the all the emissions from the unit there would be an additional 4,608 tons of emission reductions in this unit in the BART

- everywhere scenario

.Page 75 of 149 

### Table 1. IPM Modeling Projection in “Nationwide BART” Control Case (2014)

Plant Unit FGD Dispatchable Capacity (MW) Modeled SO 2 Content of
Coal (lbs/MMBtu) Modeled
SO 2 Removal Efficiency (%) Modeled SO 2 Rate (lbs/MMBtu) Notes

Units from Earthjustice Table 4

Kenneth C Coleman (KY) C3 Yes 155 5.91 95.0% 0.30 Burns high sulfur coal, achieves 95% removal (1) Dickerson (MD) 3 Yes 182 3.45 73.7% 0.91 Not modeled as BART affected due to majority rule (2) Cumberland (TN) 1 Wet 1232 6.15 95.0% 0.31 Burns high sulfur coal, achieves 95% removal (1) Cumberland (TN) 2 Wet 1233 6.15 95.0% 0.31 Burns high sulfur coal, achieves 95% removal (1)

Units from Earthjustice Table 5 Shiras (MI) 3 Dry 41 1.49 80.0% 0.30 BART unaffected, began construction in 1981, came online in 1983

Units from Earthjustice Table 6

Charles R Lowman (AL) 1 Yes 86 2.46 0.0% 2.46 Less than 100 MW, modeled as BART

unaffected Whitewater Valley (IN) 2 63 6.15 0.0% 6.15 Less than 100 MW, modeled as BART
unaffected Ames Elec. Servs. (IA) 7 33 0.94 0.0% 0.94 Less than 100 MW, modeled as BART

unaffected

Muscatine Plant #1 (IA) 8 35 0.94 0.0% 0.94 Less than 100 MW, modeled as BART

unaffected Streeter Station (IA) 7 36 1.01 1.4% 1.00 Less than 100 MW, modeled as BART

unaffected Quindaro (KS) 1 72 0.94 0.0% 0.94 Less than 100 MW, modeled as BART

unaffected Eckert Station (MI) 4 69 0.94 0.0% 0.94 Less than 100 MW, modeled as BART

unaffected Eckert Station (MI) 5 69 0.94 0.0% 0.94 Less than 100 MW, modeled as BARTInternal Review Draft 5/4/2012

Page 69 of 149 

### Table 1. IPM Modeling Projection in “Nationwide BART” Control Case (2014)

Plant Unit FGD Dispatchable Capacity (MW) Modeled SO 2 Content of
Coal (lbs/MMBtu) Modeled
SO 2 Removal Efficiency (%) Modeled SO 2 Rate (lbs/MMBtu) Notes

unaffected

Eckert Station (MI) 6 67 0.94 0.0% 0.94 Less than 100 MW, modeled as BART

unaffected Presque Isle (MI) 5 88 1.05 0.0% 1.05 Less than 100 MW, modeled as BART

unaffected Presque Isle (MI) 6 88 1.05 0.0% 1.05 Less than 100 MW, modeled as BART

unaffected Presque Isle (MI) 7 85 0.62 0.0% 0.62 Less than 100 MW, modeled as BART

unaffected Presque Isle (MI) 8 85 0.62 0.0% 0.62 Less than 100 MW, modeled as BART

unaffected Presque Isle (MI) 9 85 0.62 0.0% 0.62 Less than 100 MW, modeled as BART

unaffected Hoot Lake (MN) 3 84 1.49 0.0% 1.49 Less than 100 MW, modeled as BART

unaffected

Silver Bay (MN) 2 69 0.94 0.0% 1.00 Less than 100 MW, modeled as BART

unaffected

James River Power Station (MO) 4 56 0.94 0.0% 0.94 Less than 100 MW, modeled as BART

unaffected

James River Power Station (MO) 5 97 0.94 0.0% 0.94 Less than 100 MW, modeled as BART

unaffected Lake Road (MO) 6 97 0.95 0.9% 0.94 Less than 100 MW, modeled as BART
unaffected Dolphus M Grainger (SC) 1 85 4.80 0.0% 4.80 Less than 100 MW, modeled as BART

unaffected Dolphus M Grainger (SC) 2 85 5.43 0.0% 5.43 Less than 100 MW, modeled as BART

unaffected

Units from Earthjustice Table 7

Charles R Lowman (AL) 1 Yes 86 2.46 0.0% 2.46 Less than 100 MW, modeled as BART

unaffected Whitewater Valley (IN) 2 63 6.15 0.0% 6.15 Less than 100 MW, modeled as BARTInternal Review Draft 5/4/2012

Page 70 of 149 

### Table 1. IPM Modeling Projection in “Nationwide BART” Control Case (2014)

Plant Unit FGD Dispatchable Capacity (MW) Modeled SO 2 Content of
Coal (lbs/MMBtu) Modeled
SO 2 Removal Efficiency (%) Modeled SO 2 Rate (lbs/MMBtu) Notes

unaffected

Ames Electric Services Power Plant (IA) 7 33 0.94 0.0% 0.94 Less than 100 MW, modeled as BART

unaffected

Muscatine Plant #1 (IA) 8 35 0.94 0.0% 0.94 Less than 100 MW, modeled as BART

unaffected Streeter Station (IA) 7 36 1.01 1.4% 1.00 Less than 100 MW, modeled as BART

unaffected Quindaro (IA) 1 72 0.94 0.0% 0.94 Less than 100 MW, modeled as BART

unaffected

Kenneth C Coleman (KY) C3 Yes 155 5.91 95.0% 0.30 Burns high sulfur coal, achieves 95% removal (1) Dickerson (MD) 3 Yes 182 3.45 73.7% 0.91 Not modeled as BART affected due to majority rule (2) Eckert Station (MI) 4 69 0.94 0.0% 0.94 Less than 100 MW, modeled as BART

unaffected Eckert Station (MI) 5 69 0.94 0.0% 0.94 Less than 100 MW, modeled as BART

unaffected Eckert Station (MI) 6 67 0.94 0.0% 0.94 Less than 100 MW, modeled as BART

unaffected Presque Isle (MI) 5 88 1.05 0.0% 1.05 Less than 100 MW, modeled as BART

unaffected Presque Isle (MI) 6 Yes 88 1.05 0.0% 1.05 Less than 100 MW, modeled as BART
unaffected Presque Isle (MI) 7 Yes 85 0.62 0.0% 0.62 Less than 100 MW, modeled as BART

unaffected Presque Isle (MI) 8 Yes 85 0.62 0.0% 0.62 Less than 100 MW, modeled as BART

unaffected Presque Isle (MI) 9 Yes 85 0.62 0.0% 0.62 Less than 100 MW, modeled as BART

unaffected Shiras (MI) 3 Dry 41 1.49 80.0% 0.30 BART unaffected, began construction in 1981, came online in 1983 Hoot Lake (MN) 3 Yes 84 1.49 0.0% 1.49 Less than 100 MW, modeled as BARTInternal Review Draft 5/4/2012

Page 71 of 149 

### Table 1. IPM Modeling Projection in “Nationwide BART” Control Case (2014)

Plant Unit FGD Dispatchable Capacity (MW) Modeled SO 2 Content of
Coal (lbs/MMBtu) Modeled
SO 2 Removal Efficiency (%) Modeled SO 2 Rate (lbs/MMBtu) Notes

unaffected

Silver Bay (MN) 2 Yes 69 0.94 0.0% 1.00 Less than 100 MW, modeled as BART

unaffected

James River Power Station (MO) 4 Yes 56 0.94 0.0% 0.94 Less than 100 MW, modeled as BART

unaffected

James River Power Station (MO) 5 Yes 97 0.94 0.0% 0.94 Less than 100 MW, modeled as BART

unaffected Lake Road (MO) 6 Yes 97 0.95 0.9% 0.94 Less than 100 MW, modeled as BART

unaffected Dolphus M Grainger (SC) 1 Yes 85 4.80 0.0% 4.80 Less than 100 MW, modeled as BART

unaffected Dolphus M Grainger (SC) 2 Yes 85 5.43 0.0% 5.43 Less than 100 MW, modeled as BART

unaffected

Cumberland (TN) 1 Wet Yes 1232 6.15 95.0% 0.31 Burns high sulfur coal but achieves 95% removal (1) Cumberland (TN) 2 Wet Yes 1233 6.15 95.0% 0.31 Burns high sulfur coal but achieves 95% removal (1)

Units from Earthjustice Table 8

Iatan 1 Wet 651 0.94 93.6% 0.06 Achieves equal or less than 0.15 lb/MMBtu rate requirement Asbury 1 213 0.84 91.5% 0.07 Achieves equal or less than 0.15 lb/MMBtu rate requirement

Thomas Hill MB1 175 0.94 91.5% 0.08 Achieves equal or less than 0.15

lb/MMBtu rate requirement

Montrose 3 176 0.94 91.5% 0.08 Achieves equal or less than 0.15 lb/MMBtu rate requirement

Labadie 1 597 0.94 91.5% 0.08 Achieves equal or less than 0.15 lb/MMBtu rate requirement

Labadie 2 594 0.94 91.5% 0.08 Achieves equal or less than 0.15 lb/MMBtu rate requirement

Labadie 3 612 0.94 91.5% 0.08 Achieves equal or less than 0.15Internal Review Draft 5/4/2012

Page 72 of 149 

### Table 1. IPM Modeling Projection in “Nationwide BART” Control Case (2014)

Plant Unit FGD Dispatchable Capacity (MW) Modeled SO 2 Content of
Coal (lbs/MMBtu) Modeled
SO 2 Removal Efficiency (%) Modeled SO 2 Rate (lbs/MMBtu) Notes

lb/MMBtu rate requirement

Labadie 4 612 0.94 91.5% 0.08 Achieves equal or less than 0.15 lb/MMBtu rate requirement

New Madrid 2 580 0.94 91.5% 0.08 Achieves equal or less than 0.15 lb/MMBtu rate requirement

New Madrid 1 580 0.94 91.5% 0.08 Achieves equal or less than 0.15 lb/MMBtu rate requirement

Rush Island 2 604 0.94 91.5% 0.08 Achieves equal or less than 0.15 lb/MMBtu rate requirement

Rush Island 1 604 0.94 91.5% 0.08 Achieves equal or less than 0.15 lb/MMBtu rate requirement

Sioux 1 Wet Yes 497 2.55 95.4% 0.12 Achieves equal or less than 0.15 lb/MMBtu rate requirement

Sioux 2 Yes 497 2.55 95.4% 0.12 Achieves equal or less than 0.15 lb/MMBtu rate requirement

Sikeston Power Station 1 Wet 233 0.61 75.5% 0.15 Achieves equal or less than 0.15 lb/MMBtu rate requirement Sibley 3 401 N/A N/A N/A Unit retired Sibley 2 54 0.88 0.7% 0.88 Less than 100 MW, modeled as BART

unaffected

James River Power

Station 5 97 0.94 0.0% 0.94 Less than 100 MW, modeled as BART

unaffected

James River Power

Station 4 56 0.94 0.0% 0.94 Less than 100 MW, modeled as BART

unaffected

Lake Road 6 97 0.95 0.9% 0.94 Less than 100 MW, modeled as BART

unaffected Blue Valley 3 51 2.68 0.0% 2.68 Less than 100 MW, modeled as BART

unaffected

MN Units

Allen S King 610 87.2% 0.08 Achieves equal or less than 0.15 lb/MMBtu rate requirementInternal Review Draft 5/4/2012

Page 73 of 149 

### Table 1. IPM Modeling Projection in “Nationwide BART” Control Case (2014)

Plant Unit FGD Dispatchable Capacity (MW) Modeled SO 2 Content of
Coal (lbs/MMBtu) Modeled
SO 2 Removal Efficiency (%) Modeled SO 2 Rate (lbs/MMBtu) Notes

Austin Northeast 29 0.0% 1.05 Less than 100 MW, modeled as BART

unaffected

Clay Boswell 351 90.0% 0.06 Achieves equal or less than 0.15 lb/MMBtu rate requirement

Clay Boswell 525 83.2% 0.15 Achieves equal or less than 0.15 lb/MMBtu rate requirement

Hibbing 10 0.0% 1.49 Less than 100 MW, modeled as BART

unaffected

Hibbing 10 0.0% 1.49 Less than 100 MW, modeled as BART
unaffected

Hibbing 10 0.0% 1.49 Less than 100 MW, modeled as BART

unaffected

Hoot Lake 84 0.0% 1.49 Less than 100 MW, modeled as BART

unaffected

Sherburne County 762 96.0% 0.06 Achieves equal or less than 0.15 lb/MMBtu rate requirement

Sherburne County 752 96.0% 0.06 Achieves equal or less than 0.15 lb/MMBtu rate requirement

Silver Bay Power 69 0.0% 1.00 Less than 100 MW, modeled as BART

unaffected

Silver Lake 24 1.2% 1.12 Less than 100 MW, modeled as BART

unaffected

Silver Lake 59 85.2% 0.17 Less than 100 MW, modeled as BART

unaffected

Taconite Harbor Energy Center 68 65.0% 0.22 Less than 100 MW, modeled as BART

unaffected

(1) Commenters make calculations and comparisons based on the reported emissions in 2010 which is a function of the sulfur co ntent of the fuel used and the dispatch occurred in 2010. In 2015, in the Nationwide BART run we project this unit dispatching with a higher S content coal.Internal Review Draft 5/4/2012

Page 74 of 149 

### Table 1. IPM Modeling Projection in “Nationwide BART” Control Case (2014)

Plant Unit FGD Dispatchable Capacity (MW) Modeled SO 2 Content of
Coal (lbs/MMBtu) Modeled
SO 2 Removal Efficiency (%) Modeled SO 2 Rate (lbs/MMBtu) Notes

(2) Due to modeling limitations, EPA's modeling was not able to impose BART requirements fully on this unit. This unit has an existing scrubber that would operate with 95% removal efficiency. Our modeling assumed a "partial retrofit" operation, meaning only a portion of the emissions were subjected to 95% removal, and remainder of the emissions were assumed to be by

- passed, resulting in an overall removal efficiency of 73.7%. If this unit was modeled correctly

to r eflect 95% removal efficiency for the entire unit there would be an additional 4,608 tons of emission reductions in this unit

.Page 75 of 149 

### 9. **Averaging Times for BART and CSAPR Are Different**

Commenter: Earthjustice on behalf of a number of organizations
Comment: EPA Did Not Properly Account For Different Averaging Times under CSAPR and BART When

C omparing Visibility Impacts In failing to consider the different averaging times that are used to establish compliance with CSAPR and BART, EPA‘s analysis cannot establish that CSAPR provides greater reasonable progress than BART. Under the established reasonable progress test, EPA was required to show that reliance on

CSAPR in lieu of BART will no t cause visibility to degrade at any Class I area on the 20 percent best and worst days, and that CSAPR provides an overall improvement in visibility over BART on the 20 percent best and worst days. 40 C.F.R. § 51.308(e)(3)(i)

- (ii). The difference in how e mission impacts are measured or averaged can significantly affect the outcome of this analysis.

Visibility impacts are measured based on a twenty

- four hour averaging time, whereas BART

emission limits are set based on 30

- day averaging times. The BART Gui delines require enforceable emission limits reflecting BART requirements and specify that permits reflect ing

BART limits for EGU‘s must “ specify an averaging time of a 30

- day rolling average .” See 70 Fed. Reg. 39104, 39172 (July 6, 2005). Moreover, BART em issions limits must be met on a

continuous basis. See 42 U.S.C. § 7602(k); CAA § 302(k). In contrast, CSAPR provides for averaging of emissions over a year for the annual SO 2 and NOx programs, and over a five

- month period for the ozone season NOx program. Because pollutants are not emitted at a constant rate throughout a given day, month, or yea r, longer averaging times will “ smooth out ” variations including hourly spikes in emissions that impact visibility. Without accounting for the averaging times, it is impossible to accurately determine whether CSAPR will provide greater benefits than BART on the 20 percent best or worst days. 40 C.F.R. § 51.308(e)(3)(ii). Also, because CSAPR has such a long averaging time, EPA has failed to show that its analysis accur ately assesses whether CSAPR will cause or allow visibility to decline at any Class I area on the 20 percent best or worst days. Id. § 51.308(e)(3)(i). For all the foregoing reasons, EPA‘s proposed finding that CSAPR provides for greater reasonable progres s than BART is arbitrary.

Commenter: Kristin A. Henry, Sierra Club

Comment: Given its temporal implications, CSAPR, as the proposed BART

- alternative, does not ensure visibility will not decline at any Class I area in the state, or that visibility will imp rove in the state, per 40 C.F.R. § 51.308(e)(3). Specifically, Indiana cannot rely on CSAPR to reduce visibility impairment in Class I areas impacted by pollution from the state because CSAPR does not protect against very high short term or seasonal emissi ons that degrade visibility or ensure that adequate emissions reductions will occur at sources responsible for impairing visibility. In failing to consider the different averaging times that are used to establish compliance with CSAPR and BART, EPA’s analy sis cannot establish that CSAPR provides greater reasonable progress than BART. Under the established reasonable progress test, EPA was required to show that reliance on CSAPR in lieu of BART will not cause visibility to degrade at any Class I area

on the 20 percent best and worst days, and that CSAPR provides an overall improvement in visibility over BART on the 20 percent best and worst days. 40 C.F.R. § 51.308(e)(3)(i)

- (ii). TheInternal Review Draft 5/4/2012

Page 76 of 149 difference in how emission impacts are measured or averaged can significantl y affect the outcome of this analysis. Visibility impacts are measured based on a one

- hour averaging time,

whereas BART emission limits are set based on 30

- day averaging times. In contrast, CSAPR provides for averaging of emissions over a year for the annu al SO 2 and NOx programs. Because pollutants are not emitted at a constant rate throughout a given day, month, or year, longer averaging times will smooth out variations including hourly spikes in emissions that impact visibility. It is clearly arbitrary fo r EPA to assume a source will emit at an hourly rate equivalent to the source’s annual CSAPR divided by 8,760 hours per year. Without normalizing the averaging times, it is impossible to accurately determine whether CSAPR will provide greater

benefits than BART on the 20 percent best or worst days. 40 C.F.R. § 51.308(e)(3)(ii). Thus, CSAPR is an inappropriate BART

- alternative in that it fails to set forth appropriate averaging periods to ensure that reasonable progress goals and long

- term strategies for ach ieving the CAA and the Haze Rule’s visibility goals are being met.

Thus, since CSAPR, emission allowances are issued for a given year, but sources are under no obligation to ration the allowances out over the year. Instead, a source such as Tanner Creek, Frank E. Ratts, or Wabash River Generating Station might choose to save its allowances for use during the summer ozone period when demand for electricity is at its peak and to idle during the rest of the year, failing to reduce emission during the months w hen Class I areas may be most likely to experience the most degradation in visibility. As such, even if CSAPR resulted in emission reductions from a source such as Tanner Creek, Frank E. Ratts, or Wabash River Generating Station, there is no guarantee that those reductions would help ensure achievement of reasonable progress goals at Class I areas impacted by Indiana sources.

EPA Response: EPA disagrees with the commenters assertion that differences in averaging time should affect

our conclusions and f inding.

First, as noted by the commenter, our visibility evaluation is done for the 20 percent best and worst days. While EPA does, as noted by the commenter, collect IMPROVE samples over a 24

- hour time period, none of the visibility program requirements are based on these 24

- hour peaks. Both the 20 percent best days and 20 percent worst days represent a relatively long time period, that is an average over one

- fifth of the year, or 73 days. Because this is a relatively long time period, it tends to “smooth out” any variations that would occur over a shorter time period.

Second, there is no reason to believe that a cap

- and

- trade program would yield substantial variations in the application of emission control strategies. Once an EGU owner establishes its strategy for meeting the Transport Rule, there are powerful market incentives for operating those

controls. For SO 2 , the strategy might include selection of a coal supplier and control device such as an FGD scrubber. If the EGU owner chooses to switch fuels and to operate add

- on controls to meet their allowances, and to not purchase allowances, there is a continuous ma rket incentive to minimize emissions so long as the allowance price is greater than the price of operating controls. Because that will clearly be the case for the Transport Rule given its level of stringency, EPA

finds no reason to believe that there will be substantial variations in operations.Internal Review Draft 5/4/2012

Page 77 of 149 Third, the commenter suggests the a 30

- day rolling average BART limit could have significantly

different results than the annual or 5

- month cap and trade program requirements. EPA notes that

a 30

- day rolling ave rage represents a relatively long time period that would also tend to smooth out the hourly spikes noted by the commenter.



### 10. **Errors in EPA Models for Nitrate**

Commenter: Earthjustice on behalf of a number of organizations

Comment: EPA’s Modeling Does No t Include Realistic Nitrate Levels

EPA’ s CSAPR better than BART visibility modeling does not reflect realistic nitrate levels, precluding a credible comparison between CSAPR and BART. In response to a data request, EPA provided its intermediate modeling r esults, which revealed a high frequency of near zero

nitrate levels. See Gebhart Report at 11. This revelation conflicts with real

- world measurements of atmospheric nitrate concentrations from IMPROVE monitors. See id. EPA‘s failure to produce modeling res ults that accord with real

- life atmospheric conditions severely undermines the credibility of the agency‘s analysis. See Columbia Falls Aluminum Co. v. EPA , 139 F .3d 914, 923 (D.C. Cir. 1998) (“ An agency‘s use of a mo del is arbitrary if that model bears no rational relationship to the reality it purports to represent. ” ) (internal citation omitted).

EPA Response: The model performance was evaluated for the CAMx 2005 base case against measured data at various monitoring sites (including IMPR OVE sites) across the country. The 12km Eastern domain model performance results are documented in the CSPAR final r ule modeling TSD (Appendix A). The regional model performance, generally showed winter normalized mean

biases between

- 20% (under

- prediction ) and 20% (over

- prediction). Looking at more detailed results by site shows that in general, CAMx did well at replicating relatively high seasonal average measured nitrate concentrations and also predicted low concentrations in areas w here

measured nitrate was low. But in many cases where seasonal average measured nitrate was low (< 0.5 ug/m3), the modeled predictions were considerably lower than those measured, particularly in the Rockies and the West.

EPA believes that the model performance is acceptable for its intended purpose, in particular

because the model results we re used in a “relative sense”. The model results are used to calculate relative response factors “RRFs” which represent the percent change in PM species (a nd visibility) from the model. T hese RRFs are multiplied by the actual measured PM data at IMPROVE sites to get future year projections of visibi lity and change in visibility. Since the actual measured nitrate and sulfate (and other PM components) concentrations are used in the

calculati ons, the extinction values are anchored by the measured data. This means for example that the contribution of nitrate to the calculated base year extinction is exactly what was measured at each IMPROVE site, regardless of whether the model under predicts t he observed

nitrate concentrations.

Commenter: Earthjustice on behalf of a number of organizations

Comment: Because nitrate and sulfate concentrations contribute to overall atmospheric extinction, a core component of visibility, the model‘s failure t o contain sufficient nitrate concentrations couldInternal Review Draft 5/4/2012

Page 78 of 149 significantly affect whether the model accurately predicts visibility impacts. Sulfate and nitrate typically affect extinction relative to their concentrations in the atmosphere. Thus, in the east

where the re is more sulfate in the atmosphere, sulfate has a greater effect on extinction, whereas the relative importance of sulfate extinction diminishes as one approaches the central plains, northern plains, and upper Midwest. See Gebhart Report at 11

- 12. EPA‘s model does not reflect this reality, but instead shows an extremely high sulfate to nitrate concentration on the 20% best days at Isle Royale National Park in Michigan where one would expect more nitrate concentrations, and a higher than normal sulfate to nitrate concentrate at Dolly Sods Wilderness in West Virginia on the 20% worst days. Id. at 13

- 14.

EPA Response: The commenter presents an analysis of sulfate to nitrate ratios that is not meaningful in the

context of eva luating the model performance. At most Class I areas, the PM components that cause visibility impairment are seasonal, with high nitrate concentrations typically found in the winter and high sulfate concentrations typically found in the summer. The ratio of sulfate to

nitrate on the bes t days and worst days is not a metric that would typically be us ed to judge model performance. It is not surprising that the nitrate levels at Isle Royale on the best days and the nitrate levels at Dolly Sods o n the worst days are very low. The best days a t Isle Royale occur when air is blowing into the US from Canada wi th very low PM concentrations. The worst days at Dolly Sods occur in the summer when sulfate is high and nitrate is very low. The more important question is whether the model captures the re latively high winter nitrate at Isle Royale and the relatively high summer sulfate at Dolly Sods. In this respect, the model pe rformance is quite reasonable. The highest nitrate at Isle Roy ale is observed in the winter. The average

observed winter nitrate in 2005 at Isle Royale was 1.24 ug/m3 and the average modeled winter nitrate was 0.69 ug/m3. The highest observed sulfate at Do lly Sods is observed in the summer. The average observed summer sulfate in 2005 at Dolly Sods was 8.62 ug/m3 and the average

mode led summer sulfate was 7.91 ug/m3

. This shows that CAMx is able to capture the seasonal

differences in observed sulfa te and nitrate concentrations. Additional model performance metrics for other Class I areas are available in the proposed rule TSD as well as the final rule docket.

O verall, EPA believes CAMx model performance to be acceptable.

Commenter: Earthjustice on behalf of a number of organizations

Comment: The nitrate levels in the model could be sulfate before converting NOx to nitrate, or an

overestimation of SO 2 , which could consume all of the ammonia leaving little left for nitrate

conversions. Id. at 14. Either deficiency would result in less NOx in the model than in reality, which in turn would mask improvements in visibility from NO X redu ctions that would be expected to increase where BART is required. See id. at 15 (explaining that “ [w]ith nitrate levels at or near zero in USEPA‘s modeling, the NOx emission controls assumed by USEPA probably achieve little if any modeled benefit toward im proving Class I visibility. ” ). This failure to replicate real life conditions renders the agency‘s modeling analysis arbitrary and precludes EPA from using its modeling results to justify reliance on CSAPR in place of BART. See Columbia

Falls , 139 F.3d at 923. EPA “ retains a duty to examine key assumptions as part of its affirmative burden of promulgating and explaining a non

- arbitrary, noncapricious rule. ” Small Refiner Lead

Phase

- Down Task Force v. EPA , 705 F.2d 506, 534 (D.C. Cir. 1983); see also Eagle

- P icherInternal Review Draft 5/4/2012

Page 79 of 149 Indus., Inc. v. EPA , 759 F.2d 905, 921 (D.C. Cir.1985) (agency must provide a full analytic defense when its model is challenged).

EPA Response: As previously explained, CAMx did well at replicating relatively high seasonal average

measured nitrate concentrations and also predicted low concentrations in areas w here measured

nitrate was low. EPA believes that the model performance is acceptable for its intended purpose. Additionally it is also not clear how nitrate under

- predictions in relatively cle an Class I areas would impact the conclusions of the final rule. EPA sees no reason why the conclusion that the Transport Rule + BART elsewhere case is better than the nationwide BART case would be impacted by nitrate model performance issues. The nitrate model performance in the areas of the country which are most impacted by the Transport Rule is good. The areas with the largest

under

- predictions of nitrate are very clean Class I areas in the West which have very little impact

on the av erage visibility c alculations. Also, in both control cases, BART controls are applied to

all of the non

- Transport Rule states. Therefore the difference between the nationwide BART and the Transport Rule + BART elsewhere case is very small in the West and has little impact o n the

overall results.

Commenter: Earthjustice on behalf of a number of organizations
Comment: One potential cause for unusually low nitrate concentration levels in USEPA’s CAMx modeling

r esults would be the case if the atmosphere was ammonia

- limited in the model. Ammonia

pr eferentially converts the SO2 to sulfate before the NOX

- to

- nitrate reactions occur, so it may be the case that the available ammonia in the model is nearly completely consumed in the sulfate

c hemistry reactions, leaving little (if a ny) available ammonia in the model fields to convert NOX

emissions to nitrate.

EPA Response: The winter sulfate in the 2005 base year is generally overpredicted, but there is no indication of

whether that is the cause for unde r

- predictions of nitrate in some locations. The commenter is correct that there needs to be ammonia available for nitric acid to form aerosol nitrate. However, the formation of aerosol nitrate can also be limited by the availability of nitric acid. It is not

clear whether lower s ulfate would have an effect on the nitrate concentrations in these areas. EPA does not believe this issue would impact the conclusions of the final rule. The nitrate model performance in the areas of the country which are most impacted by the Transport R ule is good. The areas with the largest under

- predictions of nitrate are very clean Class I areas in the West which have very little impact on the average visibility calculations.

Commenter: Earthjustice on behalf of a number of organizations
Comment : As noted by other comments submitted to the Docket [ References 4 & 5 ], USEPA may have

s ignificantly overestimated SO2 emissions in the 2014 Base Case as well as in the two emissions

c ontrol scenarios under consideration (Transport Rule and Nationwide BART). In part, these emission inventory errors result from failing to properly account for SO2 emission controls that have already been installed at selected facilities. It seems that these emission inventory errors

also tend to occur at EGUs that are not BART

- eligible. This overestimation of SO2 emissionsInternal Review Draft 5/4/2012

Page 80 of 149 by USEPA’s modeling would have the same impact on modeled nitrate concentrations as

d escribed above for underestimating atmospheric ammonia. If the SO2 emissions are significantly overestimated, a simil ar effect occurs in the CAMx model in that the available ammonia works first to create sulfate and, if all or most of the available ammonia goes toward the sulfate reactions, insufficient ammonia would be available in the model to convert NOx

emissions to nitrate. This appears to have resulted in the significant under

- prediction of atmospheric nitrate by USEPA’s CAMx model. In either case (underestimating atmospheric ammonia or overestimating atmospheric SO2 emissions), the result is that the atmospheric

mo deling lacks sufficient ammonia remains to fully convert NOX emissions to nitrate. The lack of nitrate in the modeling and the failure to reproduce nitrate concentrations that correlate to the IMPROVE monitoring results suggest a serious problem with USEPA ’s modeling. By failing to account for nitrate, the modeling is particularly vulnerable in its ability to properly compute the atmospheric extinction, which is a core component of the visibility calculations.

EPA Response: The appropriateness of the 201 4 modeled SO2 emissions is addressed in other responses (see

section XXX ). However, EPA believes that the modeled level of SO2 emissions in both the 2014

base case and the 2014 control cases was a reasonable estimate

. But either way, model performance can only be judged against 2005 base case em issions and 2005 observations. EPA does not agree that 2014 SO2 emissions are overestimated and that this is causing a problem in

the model which would inva lidate the visibility results. As described previously, the nitrate model performance in the areas of the country which were most impacted by the Transp ort Rule is good. The areas with the largest under

- predictions of nitrate are very clean Class I areas in the West which have a very small impact on the average vis ibility calculations.

Commenter: Earthjustice on behalf of a number of organizations

Comment: The potential bias in the modeling results can also be exacerbated by USEPA’s selected

m

odeling approach. The nitrate modeling is used to calculate a relativ e response factor (RRF),

which is the ratio between the nitrate concentrations in each of the emissions control cases (Transport Rule or Nationwide BART) versus the 2014 Base Case nitrate model prediction. If the 2014 Base Case modeling predicted nitrate l evels to be near

- zero, a large RRF can be caused by relatively small changes in predicted nitrate concentrations.

In fact, USEPA’s explanation for the four western Class I areas in the first prong test (where visibility degradation against the 2014 Base Case was modeled) cites this very problem as i ntroducing a non

- representative bias into the modeling results. USEPA’s explanation for the modeled visibility degradation in the first prong test cites small changes in nitrate predictions

where both the Base Case and emissions control strategy have nitrate levels close to zero. In the case of the modeled visibility degradation situations, USEPA has chosen to ignore modeling results that predicted nitrate concentration increases and visibility degradation where the

modeled nitrate levels were near

- zero.

However, a more comprehensive review of the nitrate concentration data throughout USEPA’s modeling shows that this particular problem is actually widespread within the modeling results. If very low modeled nitra te concentrations, as contemplated by USEPA, potentially introduce aInternal Review Draft 5/4/2012

Page 81 of 149 non

- representative bias into the results, then USEPA’s modeling effort as a whole is questionable given that the modeled nitrate levels at virtually every other Class I area also exhibit the same characteristics. In short, because nitrate results from the modeling do not correlate to existing visibility measurements based on IMPROVE data, USEPA’s modeling for this Docket does not meet the scientific and legal standards required for such mo deling.

In addition, the failure of USEPA’s modeling to adequately address nitrate concentrations in the

a tmosphere also leads to questionable modeling results when addressing the visibility

i mprovements associated with future NOx emissions controls, whe ther under the Transport Rule

or Nationwide BART. NOx emissions reductions under any visibility regulatory program would

b e targeting reductions of nitrate as a visibility impairing species. If USEPA’s modeling significantly underestimates nitrate formatio n, this modeling would also not accurately simulate the effectiveness of NOx emissions controls toward reducing atmospheric nitrate. With nitrate levels at or near zero in USEPA’s modeling, the NOx emission controls assumed by USEPA probably achieve little if any modeled benefit toward improving Class I visibility. USEPA needs to investigate the potential cause for near

- zero nitrate concentration results in its “Better than BART” modeling. Furthermore, USEPA needs to make any necessary corrections to the

mo deling inputs and recalculate the expected concentrations and resulting visibility conditions. These findings regarding nitrate errors in USEPA’s modeling may in fact be related to a

s ignificant overestimate of SO2 emissions at sources by failing to proper ly account for emission controls already installed to comply with other state and federal regulatory programs and

i nitiatives. USEPA’s modeled nitrate results should be more aligned with the real

- world

I MPROVE monitoring concentrations. Until the modeled nitrate levels more closely match the observed/expected values based on IMPROVE data, there is no confidence that USEPA has accurately modeled the visibility implications of the Transport Rule.

EPA Response: As previously explained, CAMx did well at rep licating relatively high seasonal average measured nitrate concentrations and also predicted low concentrations in areas w here measured

nitrate was low. EPA believes that the model performance is acceptable for its intended purpose. The commenter believes that EPA’s “RRF approach” exacerbates probl ems with the modeling

results. To the contrary, EPA believes that using the model results in a relative sense is an effective way to minimize the impact of model over

- predictions or under

- predictions on the projec ted visibility metrics. Since the actual measured IMPROVE sulfate and nitrate (and other PM components) concentrations are used in the visibility projections, the extinction values are anchored by measured dat a. This means for example that the contribution of nitrate to the calculated base year extinction is exactly what was measured at each IMPROVE site, regardless

of whether the model under

- predicts (or over

- predicts) the observed nitrate concentrations.

It is true that a small modeled change in a small concentration can cre ate a large percentage change. However, the RRF methodology does not calculate individual day RRFs, which could be very large and unstable (especially if the concentrations are near zero). This issue is minimized by calculating RRFs us ing base year and future year modeled concentrations averaged across all best (or wor st) days at each IMPROVE site. Depending on data completeness, this is usually 20

- 25 worst days or best days per year.Internal Review Draft 5/4/2012

Page 82 of 149 In the proposed rule, EPA identified 4 Class I areas (3 IMPROVE sites) which had calculated visibility degradation on either the 20% best or worst days. A problem was isolated to a single model day at each site with an unusually large percentage increase i n modeled nitrate

concentrations between the 2014 base case and the control cases. Due to the averaging across days before the RRFs are calculated, this pro blem would not normally occur. But in these cases, the modeled nitrate concentration was very low on most of the worst or best days and therefore the single day with a large percentage concentration increase had large influence on th e overall average nitrate RRF. A closer examination of the modeled data revealed an unusual pattern of

nitrate increases on the single day, which was at tributed to model instability. EPA continues to believe that these identified cases of instability in modeled nitrate concentrations are isolated and do not impact the model results at other Class I areas in a meaningful way

. N itrate is predicted to decrease between 2005 and 2014 at most Class I areas due to large NOx emissions reductions

t hat occur in that time period. In 2014, the model predicts that nitrate will increase (compared to the 2014 base case) in about half of the C lass I ar eas due to the Transport Rule. But these

increases in nitrate are more than offset by large decreases in sulfate. This is not surprising and is consistent with the findings in the Transport Rule final rule.



### 11. **Ozone**

**- only States** 

Commenter: Willie R. Taylor, Director, Office of Environmental Policy and Compliance, U.S. Department of the Interior
Comment: We also disagree with EPA that summertime nitrogen oxide (NOx) reductions aimed at reducing ozone pollution for those states whose coverage under the Transport Rule relates only to ozone issues are acceptable to address nitrate contributions to regional haze. Because nitrate particle concentrations are dependent on cooler temperatures and generally are elevated in the winter

rather than the summer mont hs, NOx controls that apply only during the summertime ozone season are not appropriate to address wintertime nitrate impacts to visibility.

Our recommended remedy for these discrepancies is to treat the states of Arkansas, Louisiana, Nebraska, Kansas, a nd Oklahoma, separately from the remaining eastern states. These states are either subject to ozone only or are new additions to the Transport Rule that were not subject to the earlier Clean Air Interstate Rule. For these states, we recommend a state speci fic

demonstration that the alternative is better than BART.

Commenter: Earthjustice on behalf of a number of organizations

Comment:
CSAPR is not Better than BART in the Ozone Season States

EPA’ s analysis does not attempt to demonstrate that CSAPR is better than BART in those states where power plants are only subject to the five

- month ozone season NOx trading program. Under the better than BART proposal, BART

- eligible sources in Arkansas, Florid a, Louis iana, Mississippi, and Oklahoma

- which are only covered by the ozone season program and thus only required to hold allowances and limit emissio ns during May through September

- would escape the BART requirement to install and operate year

- round co ntrols designed to reduce NOx emissions that harm the nation‘s Class I areas. This creates a palpable risk of visibility degradation during the seven months of the year when the sources have no incentive to operate controls, causing CSAPR to fail under pro ng 1 of the reasonable progress test. See 40 C.F.R. §Internal Review Draft 5/4/2012

Page 83 of 149 51.308(e)(3)(i). EPA has not attempted to show that for these states CSAPR can nevertheless be better than BART, and based on the analysis below it will not likely be able to make that showing. See USFS Comments at 1 (“ We do not support the provision for reliance upon ozone season NOx limitations as providing for greater reasonable progress than source

- specific

BART. ” ).

For example, as the USFS has explained, summertime NOx controls may not improve vis ibility given the atmospheric chemistry of particulate nitrate formation. As they explained, Particulate nitrate formation is largely dependent upon cooler temperatures and higher humidity values, conditions most common during the late autumn through the early spring months. This translates into a significantly higher contribution of particulate nitrate to the extinction budget during the winter season. Correspondingly, summer time nitrate concentrations are typically very low and contribute very little to light extinction. . . . NOx controls which are limited to ozone season will have little effect on reducing particulate nitrate levels during the period of the year when nitrate contribution to light extinction is greatest. USFS Comments at 1

- 3, Figs.1

- 2. Thus, at a minimum, in Oklahoma and Arkansas, where modeling predicts the highest nitrate levels between November and February, CSAPR is not likely to be better than BART. Id. at 3. Moreover, independent of the nitrate chemistry, it is not certain that CSA PR can be better than partial

- BART because, in many of these states, CSAPR is not predicted to reduce NOx emissions

over ozone

- only BART.

[See letter for State

- specific points for AR,FL,OK, MS and LA]

Commenter: National Parks Conservation Association an d Earthjustice
Comment: The emissions from each Florida EGU have different impacts on visibility as a result of, among other things, their respective locations and the prevailing winds toward Class I areas. EPA does

not know

– and cannot know under the cur rent rule

– which Florida EGUs will actually reduce NOx emissions under CSAPR, or by how much. T he emissions reductions achieved by CSAPR in Florida are limited to five months of the year

– the ozone season. Any controls that might be installed to meet CSAPR are not required to be operated year

- round. This does nothing to protect

the affected Class I areas during the remaining seven months. In fact, as noted in the Forest Service’s comments on the draft notice of proposed rulemaking, the impacts of NOx emissions are highest outside of the ozone season.

Even within the five month ozone season, CSAPR allows for temporal variability such that a facility could emit at high levels within a shorter time period, creating higher than anticipated visibility impacts. Because of the high degree of variability and flexibility, power plants may exercise options t hat would lead to little or no emission reductions. For example, a facility in Florida might purchase emission credits from a source beyond the airshed of the Class I area the FL source impairs. Because CSAPR requirements only pertain to the Florida source for a fraction of the year, that source may be even more incentivized to purchase emission credits from elsewhere than a source in a fully covered CSAPR state. Thus, without knowing which Florida EGUs will reduce pollutants by what amounts under CSAPR, or when they will do so, and because these emissions reductions are applicable for less than half the year, EPA simply does not know the impact of CSAPR upon Florida's Class I areas.Internal Review Draft 5/4/2012

Page 84 of 149 It is however certain that the NOx emission reductions potentially achiev able through CSAPR allocations at the at least 9 BART eligible Florida EGUs pale in comparison to those that would be required through operation and installation of an appropriate BART limit, assuming each source were subject to BART. In fact, EPA has proj ected that NOx emissions from BART

eligible EGUs in Florida will be 9,178 tons lower under BART than under CSAPR. It is also virtually certain that steeper emission reductions would make greater strides in attaining reasonable progress goals and therefore calls into question EPA’s reliance on CSAPR to exempt BART sources from Regional Haze Rule requirements. Therefore, EPA cannot demonstrate that CSAPR will achieve as much visibility improvement in those areas as would BART.

EPA Response:

Please see sect ion III.B of the preamble for EPA’s rationale for finding that the NOx requirements of the Transport Rule achieve better

- than

- BART results for NOx for these ozone

o nly states. In addition, w ith respect to Florida, EPA notes that the Florida Department of

E nvironmental Protection, in a letter to EPA dated April 24, 2012, has committed to supplement

Florida’s Re gional Haze SIP by July 31, 2012. In this effort Florida is working with Florida utility owners to make case

- by

- case BART and reasonable progress dete rminations for Florida power plants, rather than rely on CSAPR as a better

- than

- BART alternative. Consequently, we expect NOx controls in Florida to operate year

- round.



### 12. **Use of Presumptive Limits for NOx in Arkansas Where EPA Disapproved Those**

**Limits**

Comm enter: Earthjustice on behalf of a number of organizations

Comment: The state of Arkansas adopted the presumptive NOx BART emission rates from EPA‘s BART Guidelines as BART limits for these units, but EPA recently disapproved these state BART determinations for failing to consider post

- combustion controls such as selective catalytic reduction (SCR). As EPA noted in its p roposed disapproval of the Arkansas NOx BART determinations, NOx emission rates with SCR as low as 0.05 lb/MMBtu have been routinely

met. In comparison, the presumptive NOx BART rates for White Bluff Units 1 and 2 and Flint Creek are 0.15, 0.15, and 0.23 l b/MMBtu, respectively.

In its BART projections for these three EGUs in the National BART 2014 scenario, EPA ignored its October 2011 proposed disapproval of the presumptive NOx BART limits. Instead, EPA assumed that meeting the presumptive NOx limits ref lected source

- specific BART at these units. EPA has now made clear in its final disapproval of those same limits that presumptive BART

does not equal source

- specific BART for White Bluff Units 1 and 2 and Flint Creek Unit 1 in

Arkansas. See also Section VI I.C.2, supra

In the summer ozone season, the NOx emitted by coal

- fired power plants such as White Bluff or Flint Creek is more likely to be converted to ozone in the atmosphere rather than visibility

impairing nitrate particulates. However, during the mon ths outside of the ozone season, the data on the worst 20% days for Caney Creek wilderness in Arkansas shows that nitrates are often the major component of visibility impairment. [FN 87] And, on the best 20% of days, nitrates areInternal Review Draft 5/4/2012

Page 85 of 149 more often the major compo nent of visibility impairment. Similar non

- ozone season nitrate contributions occur at the Upper Buffalo wilderness in Arkansas, especially in the month of November for the worst 20% of days and in the spring, winter, and fall of the best 20% of days.

The Missouri Class I areas show similar patterns. Based on this data, it would not be protective of visibility on a year

- round basis if the NOx controls at Arkansas EGUs only applied during the ozone season. Given that EPA‘s NOx emission projections do not pre dict any NOx emission

reductions at the BART

- subject EGUs in Arkansas under CSAPR, EPA has not, and could not,

demonstrate that ozone

- season only CSAPR requirements would result in greater reasonable progress towards achieving natural background visibility conditions than source

- specific BART

would.

[FN 87] Footnote 87: See Technical Support Document for CENRAP Emissions and Air Quality Modeling to Support Regional Haze State Implementation Plans, prepared by ENVIRON International Corporation and University of California Riverside, September 12, 2007 at 3

- 18 (in Docket for E PA’s proposed rulemaking on the Arkansas Regional Haze SIP, under Appendix A references, Docket ID EPA

- R06

- OAR

- 2008

- 0727

- 0008).

EPA Response: EPA did not in its action on the Arkansas regional haze SIP conclude that BART for the sources

at issue ne cessarily is different than presumptive BART. EPA only determined that the state had not properly applied the five

- factor analysis to determine what should be BART for these sources. See preamble discussion of ozone

- only states and EPA’s rationale for conc luding that these states are appropriately included in the better

- than

- BART finding.



### 13. **Deficiencies for NOx in Other NOx**

**- only CSAPR States** 

Commenter: Earthjustice on behalf of a number of organizations
Comment:

Other Ozone

- Season

- Only CSAPR States

A rev iew of the four remaining ozone

- season

- only CSAPR states shows that EPA has not

demonstrated that CSAPR is better than source

- specific BART in those states either. For example in Florida, Crystal River Units 1 and 2 are 25 km, or about 15.5 miles, from the Chassahowitzka Wilderness, part of the larger Chassahowitzka National Wildlife Refuge on the Gulf Coast of Florida. They are also within 300 km of Okefenokee, St. Marks, and Wolf Island wildernesses. Currently, both of these 1960s

- era units have some form of combustion control for NOx, but no add

- on controls. Under CSAPR, Units 1 and 2 at Crystal River would be required to reduce their ozone season NOx emissions by about 75% over 2010 actual emissions. Since CSAPR does not compel reductions during the rema ining part of the year, this amounts to only about 35% reduction annually. Particularly given their impacts on multiple Class I areas, these units are good candidates for add

- on NOx controls such as Selective Catalytic Reduction (SCR),

which would not be r equired for the facility to meet its CSAPR allocations. These controls could provide reductions in NOx emissions of over 90%.

EPA Response: See preamble discussion of ozone

- only states and EPA’s rationale for concluding that these
states are appropr iately included in the better

- than

- BART finding.Internal Review Draft 5/4/2012

Page 86 of 149 

### 14. **Need for Worst**

**- Case Scenarios** 

Commenter: Earthjustice on behalf of a number of organizations
Comment: EPA Must Analyze Whether a Seasonal Program is better than Application of Year

- Round

BART C ontrols

I n addition to addressing the obvious concern that limiting emissions under CSAPR for less than half a year cannot provide greater reasonable progress than installing and operating effective controls year

- round, EPA must also account for the possibility tha t BART

- eligible sources in these states may simply purchase allowances from newer, cleaner sources located in states subject to both the seasonal NOx and annual program alike

- t hat is, sources that are more likely to install controls. This likely scenario risks degradation at the Class I areas impacted by sources in ozone season states and could cause CSAPR to fail prong 1 of the reasonable progress test. 40 C.F.R. § 51.308(e)(3)(i). While EPA purported to model some trading in the IPM, EPA‘s failure

to un dertake a meaningful evaluation of the likely worst case scenario and CSAPR‘s impacts in these states renders its proposal arbitrary and unlawful.

EPA Response: EPA disagrees that it is likely that BART

- eligible sources in an ozone

- only state would purchase allowances from newer, cleaner sources in states subject to both the seasonal NOx and annual NOx program. The inclusion of a source in both programs, as oppose d to the ozone season program only, has no effect on its likelihood of installing controls. In all cases for the Transport Rule, the same $/ton values were used for establishing NOx budgets. Moreover, each state must

meet its “assurance level” in addition to its budget, and thus for a state where a NOx emitter purchases allowances for a source in another state, the assurance level would only be met if there

were counter

- balancing decreases at another source within the states. Finally, EPA’s IPM analysis, w hich would model such trading where the economics were favorable, inherently incorporates a “meaningful evaluation” of this scenario.



### 15. **Use of IMPROVE Monitor Location to Evaluate Visibility Impacts**

Commenter: Earthjustice on behalf of a number of organiz ations

Comment: EPA Cannot Reliably Evaluate Visibility Impacts at All Class I Areas Using Only Data from

IMPROVE Monitors EPA‘s analysis is further flawed because it fails to consider differences in visibility across each Class I area, instead estimatin g visibility based on a single IMPROVE monitor, where available. In this way, EPA‘s analysis does not show whether CSAPR would cause a decline in visibility across all or parts of any Class I area. See 40 C.F.R. § 51.308(e)(3)(i). In some instances, EPA

re lied on a single monitor in a Class I Area to make conclusions about visibility in another Class I Area entirely. Cf. 40 C.F.R. § 51.308(e)(3) (requiring dispersion modeling “ to determine differences in visibility between BART and the trading program for e ach impacted Class I area, for the worst and best 20 percent of days ” (emphasis added)). For example, in EPA‘s analysis, Otter Creek Wilderness in West Virginia is represented by the IMPROVE Monitor at Dolly Sods Wilderness in West Virginia. See Gebhart Report at 10.Internal Review Draft 5/4/2012

Page 87 of 149 Evaluating visibility impairment at a single monitor location, whether that monitor is within the Class I area or is a proxy for a nearby Class I area, is unlikely to accurately describe visibility

conditions across the Class I area. See G ebhart Report at 10. This problem is particularly pronounced for large Class I areas such as Shenandoah National Park, which covers 70 miles and stretches from Front Royal, Virginia to Wayneboro, Virginia. See id. Certainly, given its size, visibility woul d be expected to differ throughout the area. Nonetheless, EPA‘s modeling represents Shenandoah based on the single 12 km x 12 km grid square where its IMPROVE monitor is located. This approach conflicts with both conventional and EPA wisdom; even

EPA‘s own BART Guidelines recognize that a single IMPROVE monitor cannot represent visibility impact, particularly where multiple Class I areas are at issue:

[I]f there are multiple Class I areas in relatively close proximity to a BART

- eligible source, a

State ma y model a full field of receptors at the closest Class I area. Then a few strategic receptors may be added at the other Class I areas (perhaps at the closest point to the source, a receptor at the highest and lowest elevation in the Class I area, a recepto r at the IMPROVE monitor, and a few receptors that are expected to be at the approximate plume release height). 70 Fed. Reg. 39104, 39126 (July 6, 2005).

Thus, analysis based on a single monitor location cannot provide assurance that visibility will not degrade across any Class I area, and EPA must rely on more than evaluation of the impacts at IMPROVE monitor locations to demonstrate that visibility will not decline in any Class I area if

CSAPR is relied on in lieu of source

- specific BART. See 40 C.F.R. § 51.308(e)(3)(i). EPA‘s failure to consider other means of estimating visibility across the Class I areas, or to explain why it departed from the BART Guidelines, renders its analysis arbitrary.

EPA Response: The BART rule (§ 51.308(e)(3)(ii)) state s that there should be an overall improvement in visibility, determined by comparing the average differences between BART and the alternative

ov er all affected Class I areas. EPA calculated the visibility difference between the Transport

Rule + BART elsewh ere case and nationwide BART case at IMPROVE monitors that represent

Class I areas. In some cases, a single IMPROVE monitor repr esents multiple Class I areas. EPA believes that it is appropriate to calculate visibility changes at IMPROVE monitoring sites, as compared to Class I area locations (which are often in the same location).

The regional haze rule requires reasonable progress goals to be met for each Class I area (and for

the eventual return to natural conditions). The regional haze reasonable pro gress goals will be assessed by calculating visibility improvements from measured PM2.5 data from IMPROV E
monitors. A single IMPROVE monitor location represents an entire Class I area, and som etimes multiple Class I areas. Therefore, to be consistent with how reasonable progress is measured, the EPA modeling guidance recommends examining the modeled visibility changes at IMPROVE

monitor locations. In this respect, calculation of the visibility improvement at IMPROVE monitors is consistent with the implement ation of the regional haze rule.

As noted above, a single IMPROVE monitor may represent multiple Cl ass I areas. If for example, an IMPROVE monitor represents 3 Class I areas, we believe that it is appropriate to include the modeling results at that IMPRO VE monitor 3 times in the averaging calculation.Internal Review Draft 5/4/2012

Page 88 of 149 After all, there are 3 separate Class I areas that are located near the monitor. And each Class I

area must show reasonable progress. However, the averaging could have been done by counting

the results at e a ch IMPROVE monitor only once. In order to understand the impact of this issue, EPA recalculated the modeling results counting each IMPROVE monitor only once, to see if this sensitivity analysis would change the results. In the Eastern 12km modeling domain, there were

46 IMPROVE sites and in the full nationwide domai n there were 96 IMPROVE sites. The sensitivity analysis counted each site once and then averaged the visibility differ ences over the
46 or 96 sites. Here are the results of the revised calculatio ns.

Transport Rule

+ BART

elsewhere

– 2014 Base Case 20% Best Days Nationwide

BART

– 2014

Base Case

20% Best Days Transport
Rule + BART

elsewhere

– 2014 Base

Case

20% Worst Days Nationwide

BART

– 2014

Base Case

20% Worst Days

Eastern Class I Areas Average (46 IMPROVE sites) - 0.3

- 0.3

- 1.4

- 1.1

All Class I Areas Average (96 IMPROVE sites) - 0.1

- 0.1

- 0.7

- 0.6

As can be seen in the table above, the Transport Rule + BART elsewhere case is still better than

the Nationwide BART case when each IMPROVE site is only counted once in the average calculations for best and worst days.

Commenter: Earthjustice on behalf of a number of organizations
Comment:

EPA’ s analysis is further flawed because it fails to consider differences in visibility across each Class I area, instead estimating visibility based on a single IMPROVE monitor, wh ere available. In this way, EPA’ s analysis does not show whether CSAPR would cause a decline in visibility across all or parts of any Class I area. See 40 C.F.R. § 51.308(e)(3)(i). In some instances, EPA relied on a single monitor in a Class I Area to make conclusions about visibility in another Class I Area entirely. Cf. 40 C.F.R. § 51.308(e)(3) (requiring dispersion modeling “ to determine

differences in visibility between BART and the trading program for each impacted Class I area, for the worst and best 20 percent of days ” (emphas is added)). For example, in EPA’ s analysis, Otter Creek Wilderness in West Virginia is represented by the IMPROVE Monitor at Dolly Sods Wilderness in West Virginia. See Gebhart Report at 10.

Evaluating visibility impairment at a single monitor location, whether that monitor is within the Class I area or is a proxy for a nearby Class I area, is unlikely to accurately describe v isibilityInternal Review Draft 5/4/2012

Page 89 of 149 conditions across the Class I area. See Gebhart Report at 10. This problem is particularly pronounced for large Class I areas such as Shenandoah National Park, which covers 70 miles and stretches from Front Royal, Virginia to Wayneboro, Virginia. See id. Certainly, given its size, visibility would be expected to differ throug hout the area. Nonetheless, EPA’ s modeling represents Shenandoah based on the single 12 km x 12 km grid square where its IMPROVE monitor is located. This approach conflicts wi th both conven tional and EPA wisdom; even

EPA’ s own BART Guidelines recognize that a single IMPROVE monitor cannot represent visibility impact, particularly where multiple Class I areas are at issue:

[I]f there are multiple Class I areas in relatively cl ose proximity to a BART

- eligible source, a State may model a full field of receptors at the closest Class I area. Then a few strategic receptors may be added at the other Class I areas (perhaps at the closest point to the source, a receptor at the highest and lowest elevation in the Class I area, a receptor at the IMPROVE monitor, and a few receptors that are expected to be at the approximate plume release height). 70 Fed. Reg. 39104, 39126 (July 6, 2005).

Thus, analysis based on a single monitor location cannot provide assurance that visibility will not degrade across any Class I area, and EPA must rely on more than evaluation of the impacts at IMPROVE monitor locations to demonstrate that visibility will not decline in any Class I area if

CSAPR is relied on in lieu of source

- specific BART. See 40 C.F.R. § 51.308(e)(3)(i). EPA’ s failure to consider other means of estimating visibility across the Class I areas, or to explain why it departed from the BART Guidelines renders its analysis arbitrary.

EPA Response: As previously noted, the visibility changes from the CAMx model runs were calculate d at IMPROVE monitoring sites. EPA agrees that a visibility change that is supposed to represent a large area should not be calculat ed at a single 12km grid cel l. T hat is why the post

- processing for the 12km modeling results used a change in modeled concentrations averaged over a 3x3 grid cell area (which is a total area of 36km x 36km). For the 36km model results (used in the extreme West), a single 36km grid ce ll was used to represent the cha nge in modeled

concentrations. The averaging of multiple grid cells in the 12km domain was clearly stated in section 3.4 of the proposal TSD and we are not changing the methodology in the final rule. Although a 36km square a rea is smaller than many Class I areas, it is a reasonably large area to represent the change in visibility at an IMPROVE monitor (and it also follows the recommendations in the reg ional haze modeling guidance). The BART Guidelines referenced in

the commen t refer to dispersion modeling of individual point sources to determine im pacts on nearby Class I areas. For this rule we did not do this type of modeling. The modeling completed

for this rule i s grid modeling which includes all emissions sources in the sa me model run. This is similar to the type of modeling performed by states to help determine if reasonable progress will be met in future years. The appropriate modeling guidance to follow for this type of modeling is the photochemical modeling guidance do cument “ Guidance on the Use of Models and Other Analyses for Demonstrating Attainment of Air Quality Goals for Ozone, PM 2.5 , and Regional

Haze”

.Internal Review Draft 5/4/2012

Page 90 of 149 

### 16. **Appropriateness of Emission Projections that Are Lower than CSAPR Budget Allocations** 

Commenter: Earthjustice on behalf of a number of organizations
Comment: EPA’s Assumptions about Emission Reductions under CSAPR Are Not Consistent with CSAPR’s Own Requirements In the better than BART rule, EPA has assumed that both Alabama and Georgia will emit fewer

tons of SO 2 than allowed under each state‘s respective emission budget in the original CSAPR rulemaking as described in the table below. Similarly, EPA has assumed that Alabama, Kansas, Pennsylvania, and West Virginia each will emit fewer tons of NOx than allowed in each state‘s respective emission budget in the original CSAPR rulemaking as described in the table below. Assuming that these CSAPR states will emit less SO 2 or NOx than CSAPR requires is not only unfounded, but also may under

- predict visibility impairm ent, preventing detection of a likely decline in visibility in Class I areas. See 40 C.F.R. § 51.308(e)(3)(i). Further, in EPA‘s current analysis, which considers BART in a vacuum without CSAPR, overstating SO 2 emissions reductions arbitrarily attributes a dded visibility improvements to CSAPR over BART, rendering CSAPR more likely to satisfy the second prong of the reasonable progress test undeservedly. See

id. § 51.308(e)(3)(ii).

Accordingly, EPA‘s proposal is arbitrary because it assumes without rat ional support that CSAPR will achieve greater emissions reductions than the trading program requires. This approach is flatly at odds with the agency‘s proper refusal in other instances to allow states orInternal Review Draft 5/4/2012

Page 91 of 149 sources to claim credit for emission limitations or reductions that are not federally enforceable. See, e.g., CAA § 110(a)(2), 42 U.S.C. § 7410(a)(2); 40 C.F.R. § 51.308(d)(3).

EPA Response: While the commenter’s observation that some states are projected to emit at levels lower than their budgets in 20 12 is correct, EPA disagrees with the assertion that there is no rational support for this. The Transport Rule is a cap

- and

- trade program that affords sources and states a variety of compliance strategies. States have emissions budgets that they may exceed (by up to 18% or 21%). Likewise, sources may emit at levels lower than their allocated portion of the state budget

and sell their excess allowances to sources that wish to emit more. The IPM is a least

- cost economic model that optimizes dispatch over both time and geography. There are more than 13 million variables and 1 million constraints informing the model. The prediction that certain states will emit lower than their budgets is not arbitrary. It is a very informed prediction of how states

and their so urces would respond to the economic incentives created under the Transport Rule. Moreover, EPA has real

- world experience that confirms that this type of behavior (a state’s tendency to emit at levels lower than its budget) does occur. We have seen emission s below budgets in response to previous trading programs such as the Acid Rain Program, the NOx Budget Program, and the Clean Air Interstate Rule. In each of these programs, there are instances of states emitting at levels lower than their budget levels.

EPA’s modeling of “CSAPR+BART elsewhere” correctly imposed all CSAPR relevant constraints and state budgets, however given the existence of BART elsewhere the system response of the power sector results in different level of emissions in and outside of th e CSAPR region within the variability limits and banking allowances. The Transport Rule is a trading program that affords the covered states the flexibility to emit at varying emission levels as long as they do not exceed a state cap which reflects the max imum amount of emissions they may have while still eliminating their significant contribution

.



### 17. **Need to Appropriately Account for Reasonably Attributable Visibility Impairment (RAVI) and Potential “Hot Spots”** 

Commenter: Willie R. Taylor, Director, Office of Environmental Policy and Compliance, U.S. Department of the Interior

Comment: We are concerned that these emission differences combined with a liberal interpretation of better than BART evaluation criteria will result in less progress in some Class I ar eas toward meeting the goals set out by the Regional Haze Rule. This will have an unintended consequence of placing an added burden on the Federal Land Managers to evaluate state

- level deficiencies in the context of presumed "better than BART conclusions" and to press for these deficiencies to be rectified. Where the Transport Rule is not protecting visibility at specific Class I areas, certification of Reasonably Attribu table Visibility Impairment (RA VI) will be the only

mechanism available to Federal Land Managers to press for geographic enhancements to Transport Rule emission allocations. We ask that EPA consider the following weaknesses of the better than BART evaluation and adopt our suggestions.

Section III C 4 of the NPRM retains 40 CFR 51.3 08( e)( 4) that allows states discretion to include geographic enhancements in their regional haze implementation plan for the BARTInternal Review Draft 5/4/2012

Page 92 of 149 analysis required to address RAVI. We recommend that Section III C 4 explicitly state that the Transport Rule does not replace the BART analysis that is required to address RAVI certification. The BART determination for RAVI needs to address the impairment at the specific Class I area or areas. It is not appropriate to address RAVI by demonstrating regionally

- average visibility improv ement. This is currently relevant to the Department of the Interior's RA VI certification of visibility impacts from the Sherburne County Generating Station (Sherco) in Minnesota at Voyageurs and Isle Royale National Parks. Minnesota's BART determination f or regional haze for Sherco did not alleviate these visibility impacts and EPA is now conducting a BART determination for RA VI for Sherco. The Transport Rule, in its current state, will not

address these source

- specific impacts. This shortcoming of the pr oposed rule needs to be

addressed before the rule is finalized.

Commenter: Earthjustice on behalf of a number of organizations
Comment: EPA Failed to Adequately Consider the Potential for Trading to Degrade Visibility at the Class I

Areas

CSAPR is des igned to give sources flexibility in meeting their emission allocations, and as such,

allows BART

- eligible sources

— sources that may have been required to install pollution controls to comply with BART requirements

— to purchase allocations rather than contro l emissions. These trading decisions can significantly impact whether and where CSAPR will create hot spots that could degrade visibility at the Class I areas, causing CSAPR to fail the first prong of the reasonable progress test. See 40 C.F.R. § 51.308(e) (3)(i).

As discussed above, CSAPR allows sources covered by the same trading program

— e.g., the annual NOx program or the SO 2 Group 1 program

— to trade allowances regardless of whether the sources are in the same state, creating inherent uncertainties abou t where and, as discussed in the next section, when states will choose to emit. Given these inherent uncertainties, EPA‘s

a nalysis for the proposed CSAPR “ better than BART ” rule does not and likely cannot assess the visibility impact of complex trading und er CSAPR on the Class I areas. EPA has not provided any assurance in light of trading that CSAPR will not degrade visibility at any Class I area, or that CSAPR will achieve as much visibility improvement in those areas as BART would. Thus, regardless of wh ether trading flexibility will assist the states in complying with the NAAQS, this flexibility is at odds with ensuring emissions reductions and visibility improvement at specific Class I areas under the regional haze rule.

To remedy potential hot spots arising from trading decisions, EPA proposes to allow geographic enhancements, which, among other measures, could require installation of BART to remedy visibility impairment that is reasonably attributable to a source or group of sources (RAVI BART). See, e.g., 76 Fed. Reg. 82219, 82224 & n.13. Certainly RAVI BART is critical to remedying existing impairment and must be implemented no matter what the fate of the “ better

than BART ” proposal. See 40 C.F.R. § 51.302 (setting forth the control strategies to ad dress reasonably attributable visibility impairment). 98 However, RAVI BART cannot be relied upon to

prevent hot spots and associated degradation under CSPAR. RAVI BART is reactive; it requires FLMs to voluntarily take action to address an existing problem, and thus will not spur proactive permitting or other actions to avoid degradation in the first instance. See id. §§ 51.302(c)(1), (4);

see also USFS Comments at 14 (explai ning that relying on RAVI BART “ shifts the burden ofInternal Review Draft 5/4/2012

Page 93 of 149 insuring that individual Class I area progress goals are maintained in areas where BART would have achieved greater visibility improvement than the Transport Rule from the State to the affected Federal Land Manager ” ).

Thus, given the barriers and procedural hurdles of imposing RAVI BA RT, EPA cannot rely on RAVI or other geographic enhancements to mitigate the level of impairment at the mult iple

Class I areas to save its “ better than BART ” proposal, but instead must ensure in the first instance that the trading allowed under CSAPR will not degrade the Class I areas, as prohibited under the first prong of the reasonable progress test, 40 C.F.R. § 51.308(e)(3)(i). See USFS

Comments at 14 (“ While we believe preserving the RAVI BART process under 302(c) is of paramount importance and should be explicitly reaffirmed in this rulemaking, we believe that using the RA VI regulations to serve as the “regulatory backstop” to be an unreasonable expectation and contrary to the intended purposes of the requirements of Section 308(e) of the [Regional Haz e Rule]. ” ); see also Sierra Club v. EPA , 356 F .3d 296, 298 (D.C. Cir. 2004) (“ We agree with Sierra Club‘s principal contention that EPA was not authorized to grant conditional approval to plans that did nothing more than promise to do tomorrow what the Act requires today. ” ).

[FN 98] In the CAIR better than BART rulemaking, EPA went to great lengths to explain that it recognized that a

BART

- alternative under the Regional Haze Rule does not eliminate the requirement that states impose BART where
necessary to address reasonably attributable visibility impairment. See 70 Fed. Reg. 39104, 39137 (July 6, 2005) (explaining, when finalizing the CAIR better than BART rule, that “ [e]ven if a BART alternative is deemed to satisfy BART for regional haze purposes, . . . 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 attribu table visibility impairment‘ at any area ” (citing 40 C.F.R. § 51.302)).

Commenter: Kathyrn M. Amirpashaie/Sierra Club Kristin A. Henry, Sierra Club
Comment:

EPA’s “B etter T han BART ” M odeling F ails To A dequately A ccount For CSAPR’s T rading

A spect And

, T herefore

, EPA C annot M ake Any A ssurances That V isibility D oes N ot D ecline In

A ny C lass I A rea

. EPA’s “better than BART” modeling and analysis is further flawed since it does not account for CSAPR’s prominent trading program. Based on the inherent variability that results from the ability to trade allowances under CSAPR, where budgeted emissions will ultimately be emitted and when they will be emitted is entirely conjecture. As a result, EPA’s modeling, which operates under the assumption that sourc es will only emit up to their budgeted allowances is flawed. EPA’s modeling essentially consists of guesses and assumptions as to what emissions will be under CSAPR. It ignores the very real possibility that sources that impact Class I areas will purchase additional allowances and emit at levels greater than EPA assumed in its modeling. As a result, EPA has failed to show that visibility will not decline in any Class I area. 40 C.F.R. § 51.308(e)(3)(i). EPA’s determination that there will be an overall impr ovement in visibility with CSAPR versus BART is likewise flawed. 40 C.F.R.§ 51.308(e)(3)(ii). As a result, there is no basis for concluding that CSAPR will be “better than BART” under the revised versions of

CSAPR.

It seems as though EPA has failed to acknowledge a critical distinction between BART and

CSAPR

— namely, the fact that BART imposes emission limits on individual sources, where asInternal Review Draft 5/4/2012

Page 94 of 149 CSAPR provides emission allowances to individual sources. Compare 42 U.S.C. § 7492(g)(2),
with Final Rule, Federal Implementation Plans: Interstate Transport of Fine Particulate Matter and Ozone and Correction of SIP Approvals , 76 Fed. Reg. 48208, 48271 (Aug. 8, 2011) (codified at 40 C.F.R. Parts 51, 52, 72, 78, and 97). This small yet significant distinction between the two alternatives is why CSAPR cannot provide any real assurance that emissions from a particular source will not cause or contribute impairments of visibility in nearby Class I areas and why RHR’s BART requirements r emain the appropriate tool to ensure that EGUs comply with the CAA’s visibility protections. Whereas CSAPR’s trading program leads to great uncertainty as to the ultimate dispersion of allowances in relation to Class I areas, an adequate

source

- specific BA RT limit will provide the necessary protection for Class I areas within the

state

— this is why the BART requirements are not only a part of the RHR, they are also explicitly mandated by the CAA itself. 42 U.S.C. §7491(b)(2)(A).

Given the geographical impl ications of its trading program, CSAPR does not ensure visibility will not decline at any Class I area in the state, or that overall visibility will improve. See 40 C.F.R. § 51.308(e)(3)(i),(ii). Under an emission trading program such as CSAPR, individual sources can comply with their allowances by reducing their emissions down to the level of their budget or by obtaining additional emission credits from other sources elsewhere within the state. As a result, sources are not necessarily required to install c ontrols to reduce their pollution

— instead, they have the option to purchase emission allowances, thereby allowing them to pollute

above their allocated limits. [FN 24] See, e.g. , 76 Fed. Reg. at 48252

– 53, 48271

– 72 (describing CSAPR’s trading program). Thi s allows for a situation to arise in which an EGU (or a group of EGUs) with the potential to impact a protected Class I area emits a total tonnage of SO 2 and/or NOx that exceeds the tonnage value of its allowance holdings. As a result, EPA cannot really sa y where the CSAPR reductions will occur since CSAPR allows intra

- state trading. Yet, EPA’s modeling does not account for this variation from budgeted allowances. Instead, the modeling assumes that the budgeted emissions for each EGU are a cap which cannot be exceeded. Based on the real world application of CSAPR and any other trading program, these “caps” are artificial and impermanent. Therefore, it is arbitrary and capricious for EPA to ignore the trading aspect of CSAPR and inappropriately assume that so urces will emit at their Transport Rule emission budget when making its comparison of reductions required by BART and those required under

CSAPR. See State Farm , 463 U.S. at 43. More specifically, it is arbitrary to compare a real, source specific BART emi ssion limit with a speculative cap under CSAPR’s cap and trade

program. Id.

Indeed, EPA is well aware of the fact that actual emissions for each EGU under CSAPR will vary from their allocated limits since these EGUs have the capability and are expected t o trade

emission allowances. [FN 25] Despite this knowledge, instead of considering the real

- life application of CSAPR’s trading program, EPA’s modeling centers around an unrealistic and improper assumption that the modeled EGUs will only emit up to their budgeted SO2 and NOx allowances. In other words, EPA’s modeling fails to consider or account for the fact that emissions from certain EGUs may be significantly higher than their allocated limits which may result in visibility degradation at nearby Class I areas. As a result, EPA’s modeling improperly

favors CSAPR over BART.Internal Review Draft 5/4/2012

Page 95 of 149 EPA can speculate as much as it wants at what the actual emission rate a source subject to CSAPR will emit, but comparing an actual BART determined emission limit to a speculated

emiss ion rate under CSAPR is merely conjecture. The uncertainty surrounding the actual

distribution of CSAPR’s SO 2 and NOx allocations derives from the fact that those allocations are a commodity. The value of this commodity is influenced by other commodities t hat are global in nature and rapidly changing in price. This includes the cost of coal, as well as the capital cost of renewable energy products such as wind turbines and solar panels. It also includes the cost of natural gas, which is becoming more and mo re of a global commodity as the export and import capability for liquefied natural gas and the natural gas pipeline from Alaska to the lower 48 advances. The value of CSAPR emission credits are also greatly influenced by weather, as

weather has one of the biggest impacts on electricity demand and thus electricity generation. And with the effects of climate change already upon us, the ability to effectively predict the impact weather trends will have on this commodity is becoming even more speculative. The u nknown state of the future market, therefore, makes it impossible for EPA to reasonably conclude that CSAPR is better than a source specific BART determination; especially when you speculate five, ten years out. It would be arbitrary to ignore the chronolo gical aspect of this “better than BART” analysis.

[FN 24] While there are some restrictions on trading, intra

- state trading is still allowed under CSAPR. 76 Fed. Reg.

at 48271

- 72. [F N 25] EPA has long recognized that the flexibility provided by a trading program such as CSAPR can lead to reasonably attributable visibility impairment at a Class I area if a power plant that causes or has the potential to cause visibility impairment at a Class I area purchases emission allowances rather than reducing emissio ns. 70 Fed. Reg. 39104, 39137 (July 6, 2005) (discussing visibility hot spots under the CAIR trading program); see also 40 C.F.R. § 51.308(e)(4) (providing for “geographic enhancements” under CAIR).

Commenter: Kristin A. Henry, Sierra Club
Comment: Given the geographical implications of its trading program, CSAPR does not ensure visibility will not decline at any impacted Class I area in the state or that visibility will improve in the impacted states. Under an emission trading program such as CSAPR, individual sources can comply with their allowances by reducing their emissions down to the level of their budget or by obtaining additional emission credits from other sources elsewhere within the state. As a result, sources are not necessarily required to install controls to reduce their pollution

— instead, they have the option to purchase emission allowances, thereby allowing them to pollute above their allocated limits.13 See, e.g., 76 Fed. Reg. at 48252

– 53, 48271

– 72 (describing CSAPR’s trading program) . This allows for a situation to arise in which an EGU (or a group of EGUs) with the potential to impact a protected Class I area emits a total tonnage of SO2 and/or NOx that exceeds the tonnage value of its allowance holdings, thereby potentially causing a visibility “hot spot” that would not have occurred had that EGU been subject to the Regional Haze’s BART requirements. Indeed, EPA has long recognized that the flexibility provided by a trading program such as CSAPR can lead to reasonably attributable vi sibility impairment or visibility “hot spots” at a Class I area if a power plant that causes or has the potential to cause visibility impairment at a Class I area purchases emission allowances rather than reducing emissions. See discussion supra. Yet, EPA’ s modeling does not account for this variation from budgeted allowances. Instead, the modeling assumes that the budgeted emissions for each EGU are a cap which cannot be exceeded. Based on the real world application of CSAPR and any other trading program, these “caps” are artificial and impermanent. Therefore, it is arbitrary and capricious for EPA toInternal Review Draft 5/4/2012

Page 96 of 149 ignore the trading aspect of CSAPR and inappropriately assume that sources will emit at their CSAPR emission budget when making its comparison of reductions r equired by BART and those required under CSAPR. See State Farm, 463 U.S. at 43.

More specifically, it is arbitrary to compare a real, source specific BART emission limit with a speculative cap under CSAPR’s cap and trade program. Id. EPA can speculate as much as it wants at what the actual emission rate a source subject to CSAPR will emit, but comparing an actual BART determined emission limit to a speculated emission rate under CSAPR is merely conjecture.

These arbitrary assumptions could have on the gro und visibility issues for Class I areas. There are nine power plants with fifteen generating units that are within 300 km of at least one class one area. For example, Tanners Creek power plant is within 237 km, Harding Street Station is within 279 km, Pete rsburg power plant (with 3 eligible BART units) is within 177 km, Wabash River Generating Station is within 282 km, F.B. Culley Generating Station (with 2 eligible BART units) is within 132 km, Frank E. Ratts (with 2 eligible BART units) is within 177 km, Gibson power plant (with 2 eligible BART units) is within 194 km, A.B. Brown Generating Station is within 160 km, and Merom power plant (with 2 eligible BART units) is within 240 km of Mammoth Cave National Park. Indiana is supposed to develop and the EPA is supposed to approve a long

- term strategy for doing its part to ensure that Class I Areas in other states achieve uniform rates of progress on reducing visibility impacts and remain on a glide path for restoring visibility to natural conditions by 2064. Since some or all of these sources could choice to meet their obligations under CSAPR through allowances, Indiana can have a profound effect on a number of Class I areas ability to meet the glidepath.

Commenter: Earthjustice/Texas

Comment:

BART

- Eligibl e EGUs in Texas Will Cause Visibility Hot Spots under CSAPR The proposed partial FIP for Texas is also unsupportable because it allows for entire groups of

haze

- emitting sources to continue impairing visibility, thus creating visibility “hot spots.” The

“r easonably attributable visibility impairment” provisions of 40 C.F.R. § 51.302(c) require BART limits to remedy such visibility hot spots. Under 40 C.F.R. § 51.302(c), BART is required

whenever certain sources

— such as EGUs

— cause or contribute to reasonably attributable visibility impairment at one or more Class I areas. This BART requirement is separate and additional to the RHR’s BART requirements at 40 C.F.R. § 51.308(e). See, e.g.

, Email from Pat Brewer, NPS, to Martha Keating, EPA (Dec. 16, 2011, 1:02 P M) (NPS comments to EPA that “nothing in 308 changes the 302 requirement for responding to [reasonably attributable visibility impairment]”) (Exh. 12).

“Reasonably attributable visibility impairment” is defined as “visibility impairment that is caused by the emission of air pollutants from one, or a small number of sources.” Id. § 51.301. A source “causes” visibility impairment if it causes a 1.0 dv change or more at one or more Class I areas, and a source “contributes” to visibility impairment if it cause s a 0.5 dv change or more.

See 40 C.F.R. Pt. 51, App. Y, at III(A)(1); 70 Fed. Reg. at 39118, 39120

– 21. Further, “[b]ecause circumstances will vary in different locations,” states also have the ability to set the visibility impairment contribution threshold lower than 0.5 dv. 70 Fed. Reg. at 39121. If an affectedInternal Review Draft 5/4/2012

Page 97 of 149 Federal Land Manager certifies the existence of reasonably attributable visibility impairment

from a BART

- eligible source or group of sources, the state or EPA must impose emission limits at least as stringent as those required under New Source Performance Standards for those sources. 40 C.F.R. § 51.302(c)(2) & (c)(4). Moreover, the states and EPA may require BART limits to remedy reasonably attributable visibility im pairment without a Federal Land Manager certification. 76 Fed. Reg. at 82224 n.13. [FN20]

Under an emission trading program such as CSAPR, power plants are not required to install controls to clean up their pollution. While power plants may opt to reduce emissions to meet their source allocations, they may instead purchase emission allowances from other power plants. See, e.g. , 76 Fed. Reg. at 48252

– 53, 48271

– 72 (describing CSAPR’s trading program). This can lead to visibility hot spots when a power plant near a Class I area purchases emission allowances from a distant power plant rather than reduces emissions. EPA has long recognized that the flexibility provided by a trading program such as CSAPR can lead to reasonably attributable visibility impairment, or visibility hot spots, at one or more Class I areas if a source or a small group of sources that causes visibility impairment at the Class I area purchases emission allowances rather than reduces emissions. 70 Fed. Reg. at 39137 (discussing visibility ho t spots under the CAIR trading program); see also 40 C.F.R. § 51.308(e)(4) (providing for “geographic enhancements” under CAIR).

In such cases, BART limits for those EGUs that are reasonably anticipated to cause or contribute to visibility impairment rema in a critical tool to ensure that where a BART

- alternative program fails to ensure adequate protection of one or more Class I areas, that program may be supplemented by existing complementary provisions in the Clean Air Act and the RHR. Accordingly, EPA st ressed in its proposed “better than BART” determination for CSAPR that

B ART remains as a backstop to remedy any reasonably attributable visibility impairment that

o ccurs under CSAPR and its trading program. 76 Fed Reg. at 82221, 82224 & n.13. The

Nationa l Park Service, which has an affirmative duty to protect visibility at its Class I areas, insisted that EPA’s proposed rule provide clarity on this important point. For example, the Park Service asked EPA to clarify “in the regulation, not just the preambl e” to the proposed rule that nothing in the rule “changes the . . . requirement[s] for responding” to reasonably attributable visibility impairment,” or visibility hot spots, under 40 C.F.R. § 51.302. Exh. 12. It is critical that at a minimum, the reasonab ly attributable visibility impairment protections be left intact. EPA arbitrarily proposed a partial FIP for Texas and other CSAPR states that would exempt BART

eligible EGUs from BART without first conducting modeling to determine whether these EGUs

would cause or contribute to visibility hot spots under CSAPR. Accordingly, EPA has failed to demonstrate that CSAPR would not allow for hot spots or reasonably attributable visibility impairment and cannot issue the partial FIP without this demonstration, as e xplained in the accompanying Earthjustice comment letter.

Further, the available evidence indicates that had EPA conducted modeling, it would likely have

demonstrated that BART

- eligible EGUs in Texas will cause visibility hot spots at multiple Class

I ar eas even if they reduce their emissions to the allocations now allowed under CSAPR. Modeling conducted by Dr. Tammy Thompson at the Massachusetts Institute of Technology

demonstrates that even if BART

- eligible EGUs at Big Brown, Martin Lake, Monticello, an d Welsh power plants reduce emissions to meet the CSAPR allocations, they would causeInternal Review Draft 5/4/2012

Page 98 of 149 reasonably attributable visibility impairment at Big Bend and Guadalupe Mountains National Parks and Caney Creek and Wichita Mountains Wilderness Areas. Dr. Thompson’s mo deling compared visibility impacts under CSAPR to a scenario where emissions from the BART

eligible EGUs at Big Brown, Martin Lake, Monticello, Welsh, and 3 other non

- EGU BART

eligible sources were zeroed out. [FN 21] The results, presented in Tables 3 and 4, demonstrate that under CSAPR, these BART

- eligible EGUs will cause or contribute to visibility impai rment at four Class I areas on at least a total of 101 days annually.

[FN22] Dr. Thompson’s final report on the visibility impacts of Big Brown, Martin Lake, Monticello, and Welsh will be available soon after the February 28, 2012 deadline for comments on EPA’s proposed rule. When Dr. Thompson’s final report is issued, NPCA and Sierra Club will provide a copy of the report to EPA. [FN23] Maximum da ily visibility impact values demonstrate the potential for visibility hot spots under CSAPR if EGUs are exempted from the RHR’s BART requirements. CAMx models were used to produce these results, and the CAMx model underestimates visibility impact where the CALPUFF model is known to overestimate visibility impact. The BART Guidelines require the use of the 98th percentile of modeled visibility values for CALPUFF in order to minimize the likelihood that the modeling results will represent anomalies. Because C AMx is differently constructed, it is more accurate to represent results reflecting the worst impairment days in terms of maximum daily impact.Internal Review Draft 5/4/2012

Page 99 of 149 It is important to note that the visibility impacts highlighted above are conservative for

several rea sons. First, the modeling is based on the initial SO 2 and NOx budgets for EGUs under CSAPR (for consistency with EPA’s modeling protocol), rather than the recently finalized

r evisions to CSAPR that would significantly increase the SO 2 and NOx budgets for T exas EGUs. See supra at 14

– 15. Thus, the SO 2 and NOx emissions

— and the visibility impacts

— of Texas EGUs will likely be greater under CSAPR than the modeling suggests. Second, BART

- eligible EGUs in Texas will be able to purchase emissions allowances from di stant EGUs in Texas and other states under CSAPR, rather than reducing actual emissions to the SO 2 and NOx allocation

levels. See supra at 6 &12 n.15. As a result, the modeling represents a best

- case scenario that

assumes that Texas’s BART

- eligible EGUs wi ll reduce their emissions to the level of the SO 2 and NOx budgets under CSAPR. Even under this best

- case scenario, these BART

- eligible EGUs in Texas will cause or contribute to visibility impairment at Big Bend, Guadalupe Mountains, Caney Creek, and Wichit a Mountains. The reality will likely be worse for these National Parks

a nd Wilderness Areas, as it is unlikely that these EGUs will reduce their SO 2 and NOx emissions to the level assumed by the modeling.

In addition, estimated emissions from all BART

- eli gible EGUs in Texas indicate that every BART

- eligible EGU in the state will likely cause visibility impairment under CSAPR. States and Federal Land Managers routinely rely on the ratio of quantity of emissions over distance to the nearest Class I area (Q/d values) to identify sources that may be subject to BART. A Q/d value of 10 or greater generally indicates that a source causes or contributes to visibility impairment and dispersion modeling is warranted. See, e.g. , 76 Fed. Reg. 58570, 58624 & n.83 (Sept. 21, 2011) (describing how the BART guidelines and the Federal Land Managers’ proposed FLAG guidance amendments set a Q/d threshold value of 10). The Q/d value for every BART

- eligible EGU in Texas under CSAPR would be far greater than 10. See Table 5.Internal Review Draft 5/4/2012

Page 100 of 149 The hot spots at Class I areas caused by emissions from the BART

- eligible EGUs in Texas could be alleviated through the installation and operation of appropriate BART controls.

None of these EGUs have installed modern BART controls for both SO 2 and NOx. See Table 1. As discussed above, BART would result in significantly greater emission reductions from

Texas’s BART

- eligible EGUs than CSAPR. See supra at 17

– 18.

Because the BART

- eligible EGUs at Big Brown, Martin Lake, Monticello, and Welsh will

continue t o cause or contribute to visibility impairment at multiple Class I areas under CSAPR, EPA cannot exempt these EGUs from BART. Moreover, because the Q/d values for the other

BART

- eligible EGUs in Texas indicate that they likely also cause or contribute to v isibility impairment at one or more Class I areas under CSAPR; further modeling is required, at a minimum. If modeling demonstrates that these EGUs also cause or contribute to visibility impairment at one or more Class I areas under CSAPR then they too can not be exempted from

BART. When a BART

- alternative results in a visibility hot spot at a Class I area, it is incumbent upon EPA to require BART controls or other geographic enhancements to remedy the reasonably attributable visibility impairment. See 76 Fe d Reg. at 82221, 82224 & n.13. Consequently, to the extent that CSAPR allows any EGUs subject to BART to continue impairing visibility, the regional haze plan for Texas must require BART controls or other geographic enhancements to

ensure that the reasonab ly attributable visibility impairment at affected Class I areas will be

remedied.

[FN 20] Unlike the RHR, EPA regulations do not provide for BART

- alternative exemptions when a source is subject to BART due to reasonably attributable visibility impairment. Compare 40 C.F.R. § 51.302(c), with id. § 51.308(e)(2). [FN 21] The 3 non

- EGU BART

- eligible sources included in Dr. Thompson’s modeling were TXI Operations Midlothian Cement plant, Eastman Chemical Co., and Texarkana Paper Mill.Internal Review Draft 5/4/2012

Page 101 of 149 EPA Response: [placeholder]



### 18. **Timing of Reductions, Possibility for Emissions During Bad Visibility Days** 

Com menter: Earthjustice on behalf of a number of organizations

Comment: EPA Failed to Consider When States Will Use Allowances, Potentially Overstating the Visibility Benefits Provided by CSAPR

EPA’ s analysis potentially overstates the air quality benefits provided by CSAPR because EPA failed to consider that while allowances are issued for a given year, sources are under no

o bligation to ration the allowances out over the year. Instead, as some coal plants are already planning to do, a source might choose to save its allowances for use during the summer ozone period when demand for electricity is at its peak and to idle during the rest of the year, failing to reduce emission during the months when Class I areas may be most especially likely to experience de gradation in visibility. This, in turn, makes it unlikely that CSAPR will pass the first prong of the reasonable progress test. See 40 C.F.R. § 51.308(e)(3)(i).

For example, Luminant Generation Co. has indicated that it would idle units at Monticello in Texas when demand is low, but for D.C. Circuit Court of Appeals‘ recent decision to stay implementation of the rule, 99 and the Tennessee Valley Authority has likewise indicated it is considering idling when demand is low at many of its plants in Kentucky. 1 00 If each of these sources chooses to emit during peak ozone season and idle in the off season, the visibility benefits that BART could achieve will not materialize, and it is possible that visibility will degrade at nearby Class I areas. Under these circ umstances, CSAPR cannot be deemed better

than BART. See 40 C. F.R. §§ 51.308(e)(3)(i)

- (ii).

In addition, because the comparison under 40 C.F.R. § 51.308(e)(3)(ii) is based on the worst and best days rather than every day, EPA cannot say that CSAPR will im prove visibility more than BART because EPA cannot say during what days CSAPR sources will emit at their highest level. This problem is not only intra

- year but inter

- year. That is CSAPR allows banking of allowances so that sources can emit at a high level and thus have high visibility impacts in a particular year

versus source

- specific BART that guarantees visibility at the same level every year. See 40 C.F.R. §§ 97.426, .526, .626, .726. Failure to account for the temporal implications of the use of

allowa nces renders EPA‘s analysis of the visibility benefits under CSAPR inadequate to

demonstrate that CSAPR is better than BART

Commenter: Earthjustice/Texas Comment: (footnote 19 to letter) [FN 19 ] EPA also overestimated the visibility benefits of CSAPR by failing to consider that

Texas power plants will likely idle several EGUs during the winter months when power demand is low, but generate electricity during the summer months when power demand is high. As the accompanying Earthjustice comment letter explai ns, Luminant Generation Co. has stated that it will idle two Monticello EGUs when demand is low so as to preserve its CSAPR SO 2Internal Review Draft 5/4/2012

Page 102 of 149 a llowances for periods of high demand. If these Monticello units generate electricity in the

s ummer at quantities up to their an nual CSAPR SO 2 budget, visibility will likely degrade

s ignificantly during the months when the Monticello units are in operation, which is also when meteorological patterns at affected Class I areas are most unfavorable for exacerbating the

effects of haze

- causing pollution. In contrast, BART would result in a consistent year

- round

r eduction of emissions. In short, EPA has not accounted for important temporal implications of

CSAPR and the likelihood of seasonal visibility hot spots at Class I areas.

EPA Re sponse: In general, most of the emissions regulated by CSAPR are from base

- load rather than “load

following” units. This means they are units that tend to operate at relatively constant and high capacity utilization throughout the year. Typically, load

- following EGUs which increase their level of operation in the summer tend to be lower

- emitting natural gas

- fired units. Given the stringent annual constraints on SO 2 and NO X from the EGU population as a whole on both a state and regional basis, EPA does no t believe there is any credible scenario under which curtailment of individual plant operations would have the effect of shifting annual emissions to any given season. Although there may be some counter

- examples, especially over the very short

term, EPA be lieves as a whole these base

- load units will continue to operate in as similar fashion given that they provide the lowest

- cost electricity to the grid. Accordingly, EPA expects, and our IPM results indicate that these units will be taking concrete measures to reduce emissions throughout the year. As noted above, once these measures are in place, there are powerful market incentives for continuous implementation of those measures.



### X **II. Emission s Overestimated in EPA’s Base Case** 

Commenter: James A. Capp, Ge orgia Environmental Protection Division
Comment: EPA’s Concern that Emissions May Increase without CAIR is Baseless EPA conducted a rulemaking in 2005 that resulted in the emission levels achieved by CAIR being determined to be “better than BART.” It should be noted that it is emissions reductions that result in improvements in visibility. The specific acronym that is created by a government official does not improve air quality. Due to CAIR’s remand, EPA has refused to process many state SIPs, inc luding Regional Haze SIPs, on the basis that EGU emissions could increase when CAIR goes away. However, EPA has produced no evidence that this could realistically occur. In fact, in EPA’s own analysis for the Transport Rule, EPA concluded that, without CAI R, the emissions in Georgia would be well below the levels allowed by CAIR due to emissions reductions required by the State. EPA cannot have it both ways. EPA cannot disapprove part of our Regional Haze SIP due to the uncertain status of CAIR while at the same time EPA is imposing emission budgets that are significantly lower than CAIR due to emissions reductions required by the State. Therefore, EPA should fully approve our Regional Haze SIP that was submitted to the agency more than two years ago.

Commenter: Earthjustice on behalf of a number of organizations

Comment:
EPA’s 2014 Base Case Does Not Account for Historic Emissions Reductions at Non BART

eligible Sources, Thereby Overestimating the Benefits from CSAPRInternal Review Draft 5/4/2012

Page 103 of 1 49 EPA relied on a base case that i gnores SO 2 emissions reductions that non

- BART eligible sources have already achieved in response to other federal and state air programs and enforcement

actions. 101 In so doing, EPA gave CSAPR an artificial advantage over BART on prong 2 of the

reasonable progress test in EPA‘s already skewed analysis, which evaluates Nationwide BART in the absence of CSAPR. 40 C.F.R. § 51.308(e)(3)(ii).

In assessing CSAPR as a potential BART alternative, EPA established the 2014 base case as its visibility baseline. EPA t hen used this base case to calculate the expected visibility reductions

under “ Nationwide BART ” [F N 102] and the “ Transport Rule + BART

- elsewhere ”[FN 103] over

and above the base case. See 76 Fed. Reg. 82,219, 82,224. As EPA recognizes, the 2014 base

case is central to the analysis. See TSD at 12 (explaining that “ [t]he cornerstone of [EPA‘s] modeling process was the 2014 base case modeling scenario, which contains emissions for 2014 based on predicted growth and existing emissions controls ” ).

However, EPA ‘s projected base case fails to provide a realistic basis for evaluating reliance on CSPAR in place of BART. The base case purports to include constraints on EGU emissions from the Acid Rain Program, the NOx SIP Call, New Source Performance Standards, Titl e V permits, any state laws and consent order requiring emission reductions, and any other permanent and enforceable binding reduction commitments. ” 76 Fed. Reg. at 82224. [FN 104] However, it fails to accurately reflect emissions reductions at non

- BART el igible sources from historic fuel switching decisions or failure to account for historic installation of scrubbers that were unrelated to CAIR. Likewise, the base case does not include emissions reductions already achieved under the CAIR program at non BAR T

- eligible sources. To the extent that these emission reductions
are permanent

— i.e., will apply regardless of whether CAIR is replaced with another trading

program

— they should be reflected in the baseline. To the extent that CSAPR preserves these

emissions reductions, they should be reflected in both the CSAPR and the BART + CSAPR scenarios described in Section VII.B, supra

.

For example, as explained in more detail in Tables 3

- 1 to 3

- 2 submitted as an attachment, in the following instances, EPA failed to account for historically low SO 2 emissions due to pre

- CAIR decisions to install scrubbers or switch fuel type [FN 105] at non

- BART eligible sources in the

CSAPR states in the 2014 base case

— a failure that translated to higher than appropriate

emissions i n the Nationwide BART scenario. This failure also credited CSAPR with far greater emission reductions than it actually can be expected to induce.Internal Review Draft 5/4/2012

Page 104 of 149Internal Review Draft 5/4/2012

Page 105 of 149 [FN 106] The emissions included for the base case were taken from the results of EPA‘s Integrated Plann ing Model for this proposal, 2014 basecase, available at http://www.epa.gov/visibility/actions.html. [FN 107] The emissions included for the 2014 Nationwide BART scenario were taken from the results of EPA‘s Integrated Planning Model for this proposal, Na tional BART 2014 spreadsheet, available at http://www.epa.gov/visibility/actions.html. [FN 108] The historic emissions values were selected based on the highest emissions reported from 2003

- 2010. The data for the years 2006

- 2010 were the values EPA used i n the CSAPR better than BART rulemaking to make its unit

level allocations. See EPA, Technical Information and Support Documents, Technical Support Documents for the
Final Cross

- State Air Pollution Rule (CSAPR) and the Supplemental Notice of Proposed Rulemaking (SNPR), *Final CSAPR Unit Level Allocations under the FIP and Underlying D ata, available at http://www.epa.gov/airtransport/techinfo.html. For the years 2003

- 2005, the historic emissions were generated from the Clean Air Markets website, http://camddataandmaps.epa.gov/gdm/index.cfm?fuseaction=emissions.wizard.

These examples of EPA‘s failure account for historic emission decreases were selected by identifying all BART

- eligible units where the SO 2 emission rate modeled in EPA‘s “ Nationwide

BART ” scenario was greater than 0.30 lb/MMBtu and where the historic emission rate, as

re ported in CAMD for 2010 or 2011, was less than the emission rate modeled. This provides a subset of the most egregious instances of EPA‘s failure to account for lower historic emission rates, and other examples may well exist throughout the model.

Notabl y, three of the EGUs included in Table 14 above operate FDG scrubbers installed prior to 1996. A B Brown Unit 2 installed an FGD in 1986 with a design SO 2 removal efficiency of 90% (as reported on DOE EIA Form

- 860R) and operated during 2008 (the year with the highest SO 2 emissions during 2003

- 2010 time period) with a removal efficiency of 88.4% (as reported on DOE EIA Form 923). Clay Boswell Unit 2 installed an FGD in 1980 with a design removal efficiency of 83.2% (as reported on DOE EIA Form

- 860R) and oper ated during the maximum

SO 2 emissions year 2007 with a removal efficiency of 25.4% (as reported on DOE EIA Form 923). B L England Unit 2 installed an FGD in 1995 with a design removal efficiency of 93% (as reported on DOE EIA Form

- 860R) and operated during the maximum SO 2 emissions year 2003

with an SO 2 removal efficiency of 93% (as reported on DOE EIA Form

- 923).

In each of these three examples, the FGD was installed many years before implementation of CAIR, and the units operated during 2003

- 2010 with an nual SO 2 emissions equal to or less than

the maximum SO 2 emissions reported in Table 14 above. Furthermore, in each case, both the design removal efficiency, and the actual operating SO 2 removal efficiency for these EGUs are less than the 95% presumptive B ART SO 2 removal efficiency EPA has prescribed for National BART. Yet EPA has assigned SO 2 annual emissions and emission rates in the Nationwide BART scenario that greatly exceed even the highest reported emission rates for the maximum SO 2Internal Review Draft 5/4/2012

Page 106 of 149 emissions years w hen the FGDs operated at less than EPA‘s presumptive BART removal efficiency.

[FN 101] EPA‘s base case also failed to take account of historic SO2 emission reductions at BART

- eligible sources. The most egregious example of this failure is at units 1

- 3 of the Harrison Power Plant in West Virginia. Although these three units have operated wet scrubbers since 1995, EPA‘s base case estimated that each unit would emit SO2 at a rate of 4.28 lb/MMBtu, a rate that is more than four times greater than the 0.14 lb/ MMBtu (Unit 1), 0.10 lb/MMBtu (Unit 2), and 0.11 lb/MMBtu (Unit 3) SO2 rate that each unit averaged over 2005

- 2010 according to

information on CAMD. See EPA Scrubber and SCR Retrofit Data submitted to the Senate Committee on Environment and Public Works, a vailable at http://epw.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=a0437dd3

- b584

- 4796

- 9ad0

- 926bb0dc3de9 (indicating that Harrison installed scrubbers in 1995). The failure to account for historic emission

reductions result at Harrison Un its 1

- 3 alone overstated SO2 emissions in the base case by 263,289 tons. Any failure to properly account for long

- standing emission control technology and historically low emissions in the base case could impact the technology assumed in the BART and CSAPR scenarios, which in turn affects how the IMP model will predict emissions at other sources and ultimately visibility impairment at the Class I areas. Rather than point out all such errors, these comments focus on problems in the base case at units that ar e not subject to BART, as in this situation only the Transport Rule + BART

- elsewhere scenario, and not the Nationwide BART scenario, has an opportunity to make up for EPA‘s error. However, EPA must review the assumptions in its base case to ensure

accurate modeling. [FN102] The Nationwide BART scenario is defined in footnote 24, supra

. [FN103] The Transport Rule + BART

- elsewhere scenario is defined in footnote 25, supra

. [FN 104] It is unclear whether EPA‘s modeling has taken into account all consent decrees as the modeling input spreadsheets do not break down limits imposed at each source. EPA must apply the consent decrees and must make

it clear that it has. Failure to d o so renders the modeling arbitrary. [FN 105] It is safe to assume that the historic 2003

- 2010 SO2 emissions were not constrained by CAIR because the emission rates and annual emissions for the post

- CAIR years 2006

- 2010 were consistent with the rates and annual emissions for the pre

- CAIR period viewed, 2003

- 2005.

Commenter: National Parks Conservation Association on behalf of numerous organizations:

Comment: EPA purports only to show that CSAPR is better than BART nationwide. Neither EPA nor Georgia has attempted to demonstrate that CSAPR is better than BART for Georgia. The existing analyses demonstrate that CSAPR does not provide greater emission reductions at BART eligible EGUs in Georgia that likely cause or contribute to visibility impairment, and

t herefore will not achieve greater than reasonable progress at implicated Class I areas.

For example, the 104 MW Kraft Unit 3 is 90 km from Wolf Island Wilderness, and within 300 km of Cape Romain Wilderness and Okefenokee Wilderness as well. This unit ha s no controls for NOx or SO2. As controlled by BART, and utilizing modern technology, its emissions could be reduced by more than 90% (NOx) and 99% (SO2). By contrast, CSAPR will require only reductions of around 79% for each pollutant, based on 2010 emiss ions. Similarly, Yates Units 6 and 7, each 404 MW and both operational in 1974 are 167 km from Cohutta Wilderness. Yates is also within 300 km of Great Smoky Mountains National Park, Joyce Kilmer

- Slickrock Wilderness, Shin ing Rock Wilderness, and Sipsey Wi lderness. These units have combustion

controls for NOx but no add

- on NOx or SO2 controls. Under BART, they would be candidates for 90 and 99% control of NOx and SO2, respectively. Under CSAPR, assuming these units do

not choos e to trade instead of reducing emissions, NOx will be reduced between 63

- 66% from

2010 levels and SO2 about 87% at each unit.Internal Review Draft 5/4/2012

Page 107 of 149 The same pattern holds for the other BART

- eligible EGUs that have not yet installed SCR or

scrubbers

– CSAPR requires fewer emission reductions from existing e missions than would BART. However, several EGUs have already installed these add

- on controls and benefited from significant emission reductions, including Bowen Units 1

- 4, Wansley Units 1 and 2, and

Hammond Unit 4. At these facilities

– with just one excep tion

– CSAPR allocations are significantly higher than necessary for those units

– often allowing double or triple the existing emissions. In one instance, the CSAPR allocation exceeds six times the 2010 actual emissions at the facility. The clear danger here is that these excess and unnecessary allocations have gone unaccounted for in EPA’s baseline and will likely be traded to facilities without existing controls, decreasing the likelihood that emission reductions at the sources most impacting Class I

a reas will actually be realized.

EPA Response: Section V.B of the Transport Rule Preamble (76 FR 48223) explains why EPA assumed no CAIR related reductions in its base case. For this rulemaking, EPA starts from the same position.

That is for both scenarios

– “Nationwide BART” and “Transport Rule + BART”

– previous SO2 emission reductions are not implicitly assumed to continue indefinitely into the future simply because they occurred in the past. For example, both Transport Rule and non

- BART affecte d sources have the inherent flexibility to switch back to a higher sulfur coal. EPA disagrees with the commenter’s suggestion that future emission profiles should be pegged purely to historic operation, ignoring already occurring or anticipated changes in policy and market drivers.

Under the “Transport Rule + BART” scenario, sources are projected to operate existing controls due the economic incentives created under the transport rule. The economic incentives of the rule

will also lead to a continuation of much of the coal switching that had previously occurred at units under CAIR. However, this is driven by the economic incentives of the Transport Rule, not a blanket assumption that a unit would continue to burn the same fuel that it had in the past. In

fa ct, there are some units in the “Transport Rule + BART” scenario that switch to a higher sulfur coal from what they burned in the past. For instance, if another unit in the state installed a pollution control due to a consent decree and is providing emissi on reductions that contribute to compliance with the state’s emission budget, than a particular affected unit that had previously

burned a low

- sulfur coal may no longer find it economic to do so as demand for those allowances is reduced. EPA’s “Transport Rule + BART” as well as the “nationwide BART” scenario would reflect this flexibility for a source to switch to coal higher in sulfur than that which it historically consumed, and therefore there is no advantage given to CSAPR over BART in EPA’s analysis.

The comment seems to fail to account for the fact that CSAPR only requires emission reductions at the state level. There are no unit level emission reduction requirements under CSAPR. Because there are no unit level requirements under CSAPR, there are n o CSAPR related reductions that should be programmed into the “Nationwide BART” analysis. In fact, doing so would directly contradict the market incentives and trading flexibilities on which CSAPR is based. For instance, as more BART affected units begin t o reduce emissions; the expectation

would be that the non

- BART affected sources covered under CSAPR in that same state would reduce emissions less. That is, the market incentive for them to reduce emissions would be reduced as newly found emission reductio ns come from BART affected sources

– reducing bothInternal Review Draft 5/4/2012

Page 108 of 149 demand for allowances (and consequently the price) as well as the burden of complying with the CSAPR state budget. Therefore, the commenters suggestion that EPA assume that non

- BART sources simply hold ste ady their emission reductions as BART

- affected sources make emission reductions contradicts the behavior that would be an appropriate economic response. The consequence of EPA incorporating such an assumption would be to overstate the air quality

benefit o f “Nationwide BART” scenario.

Table 15 (of the comments) l ist s a series of BART unaffected units with “2003

- 2010 reported

historic emissions from EIA Form

- 860”, selecti ng the highest reported value. The commenter then compares the selected reported histor ical values with EPA’s projected values for 2014 for

the Base Case and Nationwide BART. The commenter’s calculations suggest a number of misunderstandings and misinterpretations of the reported data, as well as the modeling, in the

assertion that EPA’s mod eling did not account appropriately for “historically reported low level of mandatory emission limits” hence the Base Case and the Nationwide BART model outputs have erroneously high emissions.

Historic emissions are a function of the sulfur content of th e fuel used at a specific year and the level of dispatch, as well as whether an existing control operates or turned off. Reported historic emissions are not mandatory emission limits. Base Case and Nationwide BART modeled in this analysis reflect a no CSAP R/CAIR policy case where units with physically existing FGDs that were installed prior to a certain year were allowed to make an economic choice regarding the operation of their post

- combustion controls. This ability is called having a dispatc h able control

. The rules for dispatchable scrubbers and SCRs on coal units were documented in the Proposed TR (see http://www.epa.gov/airmarkets/progsregs/epa

- ipm/IPM_Update_Docu mentation.pdf ).

Rules for dispatchable scrubbers on coal units:

1. If the unit online year is 1990 or later then the scrubber will not be dispatchable. Such units are likely to be new units required to control.

2. If the unit is online before 1990 and if the scrubber is online in 1992 or earlier then the scrubber will not be dispatchable. These scrubbers were most likely built for a reason other than compliance with the Title IV Acid Rain Program.

3. If the unit is online before 1990 and if the scrubb er is online in 1993 or later then the scrubber will not be dispatchable if it is mandated by NSR, state settlement or state

- specific rule and the scrubber is online by the end of 2011.

4. If the criteria in (1

– 3) are not met, then scrubbers will be dispatchable.

Rules for dispatchable SCR controls on coal units within the CAIR region but outside the SIP Call region :

1. If the unit online year is 1990 or later then the SCR will not be dispatchable. Such units are likely to be new units required to control.Internal Review Draft 5/4/2012

Page 109 of 149 2. If the unit’s firing type is cyclone and the SCR is online in 1999 or earlier then the SCR will not be dispatchable. Such a control was most likely installed for compliance with the Title IV NOX Program or an earlier mandate.

3. If the unit is online before 1990 then the SCR will not be dispatchable if the SCR control is mandated by NSR, state settlement or state

- specific rule and the control is online by the end of

2011.

4. If the criteria in (1

– 3) are not met then SCR controls will be dispat chable.

EPA modeling does not intend to simulate historic emissions that actually occurred under certain environmental constraints and historic market conditions. EPA’s Base Case modeling reflects

the level of emissions that would occur in the absence of CAIR and CSAPR; the Nationwide BART run reflects the emissions that would occur with the presence of BART only. EPA modeling uses various information from EIA Form

- 860, however, commenter misinterprets SO2 emissions reported to EIA as “emi ssion limits” or “mandatory limits.” These historical values are not emission limits but reported emissions that may differ year to year based on the least

- cost optimization decisions a unit may make. In any modeling scenario or an actual historical year

, the units are constrained by permit limits, accessible coal types and environmental rules in effect, allowing the unit to make a decision to operate a control or not, and switching to a higher S content coal or not and hence emitting less than their perm itted limits . Furthermore, in most of the calculations, commenter uses 2010 reported emissions assuming 8760 hours of dispatch (i.e. 100% availability or dispatch). IPM assumes 85% maximum availability for coal units based on data from NERC GADS (2001 to 2005) and AEO 2010 (see page 3

- 12 of IPM documentation for

CSAPR at http://www.epa.gov/airmarkets/progsregs/epa

- ipm/docs/v410/Chapter3.pdf This inconsistency results in further discrepancy between commenters’ calculated values and EPA’s projected values.

In summary, units listed in Tables 15 are all non

- BART affected units showing a correctly projected behavior of higher emissions compared to historically reported values

. The units listed

in Table 15 exhibit one or more of the following traits:

D o not have any controls and dispatch using a higher S content coal in EPA’s runs, properly constrained with the permit limits applicable to each unit.

H ave a scrubber operating with the historically reported removal efficiency using a higher S

content coal

. H ave a scrubber assigned as dispatchable based on the explanation provided above and does not operate the scrubber

.

Page 44, footnote 104: Commenter asks clarifications reg arding how consent decrees are modeled. All modeling inputs, including consent decrees and other environmental regulations

and constraints were documented in detail with the CSAPR . Since the CSAPR better than BART analysis use previously documented modeli ng platform and runs, these are referenced in CSAPR. http://www.epa.gov/airmarkets/progsregs/epa

- ipm/transport.html http://www.epa.gov/airmarkets/progsregs/epa

- ipm/docs/v410/Chapter3.pdf http://www.epa.gov/airmarkets/progsregs/epa

- ipm/ CSAPR /docs/DocS uppv410_FTransport.pdfInternal Review Draft 5/4/2012

Page 110 of 149 Page 46: A B Brown Unit 2 is a BART unaffected unit with an existing scrubber operating with 82% removal (as reported in 2007 EIA Form

- 860 which our NEEDS inventory was based). Clay

Boswell Unit 2 does not have a scrubber in NEE DS, neither reported in 2007 EIA Form

- 860. However, Clay Boswell Unit 4 has a scrubber (and modeled as operating). Commenter likely mixed up Units 2 and 4. B L England does have a dispatchable FGD, meaning this is a physically existing FGD, however witho ut CAIR or CSAPR the unit makes the economic choice of not operating its FGD while complying with all relevant environmental constraints.



### 1. **Missing Mandatory Limits Reported to DOE/EIA** Commenter: Earthjustice on behalf of a number of organizations

Comment: EPA‘s failure to account for historic emission reductions is critically wrong where EPA ignored reductions required by mandatory emission limits that the plants themselves disclosed to the Department of Energy‘s Energy Information Administration. For example, at the following 19

units included in Table 1 6, EPA failed to apply these mandatory limits, overstating the Nationwide BART scenario by 220,389 tons of SO 2

.Internal Review Draft 5/4/2012

Page 111 of 149 By failing to take account of any emission reductions from pre

- CAIR historic fuel switching decisions or installation of scrubbers, per the above examples, and for permanent changes prompted by CAIR in the base case at non

- BART

- el igible sources, EPA placed the “ Nationwide

BART ” scenario at an arbitrary disadvantage, affording CSAPR unde served credit for requiring emissions reductions on sources that were already achieving those reductions. Indeed, historic

emissions are less than half of those modeled in the “Nationwide BART” scenario. Even where CSAPR achieves significant further reduct ions, it is fundamentally improper to compare CSPAR to a Nationwide BART scenario with excess emissions. This flaw renders EPA‘s analysis arbitrary.

EPA Response:
See discussion above in RTC section [placeholder] on why EPA cannot rely on historical fuel switching decisions, and why some scrubbers have an economic decision on whether they would be “dispatchable” under some circumstances.

EPA modeling uses various information from EIA Form

- 860, however, commenter misinterprets

SO 2 emissions reported to EIA as “emission limits” or “mandatory limits.” These historical values are not emission limits but reported emissions that may differ year to year based on the

least

- cost optimization decisions a unit may make. In any modeling scenario or an actual historical year, the units are constrained by permit limits, accessible coal types and environmental rules in effect, allowing the unit to make a decision to operate a control or not, and switching to a higher S content coal or not and hence emitting less than their permitted

limits . Furthermore, in most of the calculations, commenter uses 2010 reported emissions assuming 8760 hours of dispatch (i.e. 100% availability or dispatch). IPM assumes 85% maximum availability for coal units based on data from NERC GADS (2001 to 2005) and AEO 2010 (see page 3

- 12 of IPM documentation for CSAPR at http://www.epa.gov/airmarkets/progsregs/epa

- ipm/docs/v410/Chapter3.pdf

This inconsisten cy results in further discrepancy between commenters calculated values and EPA’s projected values.



### 2

**. Need for More Current Emissions Basis for Comparison** 

Commenter: Kathryn M. Amirpashaie, PLC

Comment:

A C omparison B etween A ctual 2010 E missions A nd CSAPR A llocated 2014 E missions For

BART

- E ligible S ources In A labama , M ississippi , N orth C arolina

, And S outh C arolina R eveals

That CSPAR H as R eceived An U nfair A dvantage In EPA’s A nalysis

. EPA’s modeling is flawed in that EPA used data from 2005

- over hal f a decade ago

- to represent “current” visibility conditions at Class I areas. However, in order to accurately satisfy the first prong of the 308(e)(3) analysis as to whether CSAPR will result in visibility declining in any Class I area, EPA must compare present visibility to projected visibility under CSAPR.

As applicable to this modeling, data from 2005 can in no way be considered “current.” Indeed, due to various CAA regulations and programs, as well as source

- specific settlement agreements

and other factors such as advances in renewable energy, current emissions at a number of sourcesInternal Review Draft 5/4/2012

Page 112 of 149 have significantly declined from their 2005 emissions levels. This is evidenced when one compares emissions data from 2005 with emissions data from 2010, the last full y ear for which quality

- assured act ual emissions data is available.[FN 16]. However; EPA’s “better

- than

- BART” analysis ignores these emissions reductions, which have already been achieved. These omissions operate to give CSAPR an artificial and unfair advant age over BART in EPA’s analysis.

Thus, instead of using 2005 as the base year for making its visibility comparisons, in order to ensure greater accuracy, EPA should have based its modeling on the most current data, and compared projected emissions impact s with emissions impacts from 2010. The importance of using actual current data when conducting modeling is evidenced in the fact that emissions from

a number of BART

- eligible coal

- fired EGUs were significantly lower in 2010 than their budgeted CSAPR allow ances. [FN 17]

Ranajit Sahu is an expert who was retained by the Sierra Club to examine in detail the CSAPR

allocations for SO 2 and NOx at BART

- eligible coal

- fired EGUs in the states of Alabama, Mississippi, North Carolina, and South Carolina. With regard to each BART

- eligible source in these four states, the expert compared CSAPR’s 2014 (i.e., 2014 and subsequent (“2014+”)) SO 2 and NOx allocations to actual emissions from these units for 2010 and found that emissions from a number of these sources was sig nificantly lower in 2010 than their 2014+ CSAPR

allowances. [FN 18] The results of these various comparisons are shown in the spreadsheet, entitled “Table A,” attached hereto as Exhibit 2, which is part of expert Ranajit Sahu’s report on

Docket ID No. EPA

- H Q

- OAR

- 2011

- 0729, attached hereto as Exhibit 1. Ranajit Sahu’s report also provides a discussion of these findings, which we incorporate into these comments. See
Exhibit 1.

Because a number of these EGUs are emitting at less than their CSAPR allocations, the issue arises that when CSAPR “kicks in”, these sources will be permitted under their CSAPR budgets to emit pollutants at levels higher than they are currently emitting. T his in turn may very likely result in a decline in visibility at nearby Class I areas. The fact that actual emissions from 2010

for a number of these BART

- eligible units are lower than the allocations under CSAPR also comes into play in their respect to BA RT. Specifically, it would be unreasonable to set BART emissions higher than actual emissions, therefore, source

- specific BART for these units would likely be set equal to or lower than current, 2010 actual emissions, which are significantly lower

than the ir corresponding CSAPR allocations. Therefore, EPA’s finding that under CSAPR, visibility would not decline in any Class I area is unsubstantiated and flawed. Also, once again, this demonstrate that EPA’s analysis of visibility improvements under source sp ecific BART versus CSAPR was flawed because EPA greatly underestimated the emission reductions that would be achieved under source specific BART limits. Thus, it cannot be said that CSAPR will ensure greater reasonable progress towards the national goal of achieving natural visibility conditions in Class I areas by 2064 than BART. 76 Fed. Reg. at 82221.

[FN 16] Data available on EPA’s Clean Air Markets Division database(“CAMD”), accessible at http://camddataandmaps.epa.gov/gdm/index.cfm?fuseaction=emissions.wizard&EQW_datasetSelection = [FN 17] Compare data from EPA’s CAMD database, with EPA’s budgeted CSAPR allocations, available at http://www.epa.go v/airtransport/techinfo.html. [FN 18] The fact that many of these BART

- eligible EGUs were achieving lower emissions rates in 2010 than those allocated for 2014+ under CSAPR is likely due to the fact that these sources have already been required to instal l pollution control technologies

— including BART technologies such as scrubbers and selective catalytic reductionInternal Review Draft 5/4/2012

Page 113 of 149 systems

— on these EGUs. As a consequence, not only does EPA’s modeling ignore the potential degradation to Class I areas that may result if thes e EGUs choose to increase their emission to their allocated levels under CSAPR, the modeling also underestimates the effects of the currently installed and operating BART controls at these units. Extending this conclusion to the remaining EGUs in Alabama, Mississippi, North Carolina, and South Carolina with 2014+ allocations below their actual 2010 emissions, if those EGUs were also to install and operate similar BART controls, emissions from those facilities would likely be reduced to a greater degree than achievable by CSAPR. This would impact EPA’s determination made under 40 C.F.R. § 51.308(e)(3)(ii).

EPA Response: This comment mischaracterizes EPA’s use of 2005 emissions. EPA uses 2005 emissions, benchmarked to air quality in 2005 and surrounding y ears, as its base year for forecast future air quality for the year 2014. It is the year 2014 that serves as the basis for an “apples to apples” comparison of the two Transport Rule alternatives to nationwide BART scenario.

Moreover, EPA questions the r elevance of comparing individual unit 2010 emissions to 2014 allowances. The appropriate comparison is whether visibility in Class I areas would be better under the Transport Rule than they would be under a nationwide BART scenario, and not

whether in all cases year 2014 emissions for BART units would decrease from 2010 levels

.



### 3

**. Need for Analysis of CSAPR Rule Changes** 

Commenter: Kathryn M. Amirpashaie, PLC

Comment:

EPA’s M odeling E xcludes From C onsideration The S ubsequent R evisions To CSAPR T hat

I ncrease E mission A llocations For EGUs In M ississippi And S outh C arolina

. EPA based its “better

- than

- BART” modeling and analysis on the state budgets prescribed in the final version of CSAPR, which was published on August 8, 2011. See 76 Fed. Reg. at 82227 . However, since the publication of its CSAPR “better

- than

- BART” rule, EPA has weakened the CSAPR rule by providing EGUs in several states with larger pollution allocations. See Final Rule, Revisions to Federal Implementation Plans to Reduce Interstate Tra nsport of Fine Particulate Matter and Ozone

, 77 Fed. Reg. 10324 (Feb. 21, 2012); see also Direct Final Rule, Revisions to Federal Implementation Plans to Reduce Interstate Transport of Fine Particulate Matter and Ozone , 77 Fed. Reg. 10342 (Feb. 21, 2012). Despite these revisions, EPA has failed to undertake any analysis demonstrating that CSAPR as revised is better than BART. As a result, EPA’s CSAPR “better

- than

- BART” rule underestimates the potential for degradation to Class I areas under CSAPR, while sim ultaneously overestimating the overall improvements in visibility due to CSAPR. 40 C.F.R. § 51.308(e)(3).

South Carolina is one state for which EPA has issued revised SO 2 allocations. Specifically, through its direct final rule, EPA is finalizing an 8,013 ton increase to South Carolina’s annual

SO 2 budgets. [FN 19] 77 Fed. Reg. 10342, 01345. These revisions are illustrated in Table 5 below. Notably, 6,001 of the 8,013 annual tonnage increase in SO 2 allocations this state comes

from increases at BART

- eligib le sources.Internal Review Draft 5/4/2012

Page 114 of 149 20 Compare EPA, Revisions Rule Part II Unit

- Level Allocations under the FIPs, available at http://www.epa.gov/airtransport/pdfs/Revisions%20Rule%20Part%20II%20Unit

Level%20Allocations%20under%20the%20FIPs.pdf

, with EPA, Final CSAPR Unit L evel Allocations under the FIP, available at http://www.epa.gov/airtransport/pdfs/UnitLevelAlloc.pdf

In addition, subsequent revisions to CSAPR’s SO2 and NOx budgets allow Mississippi EGUs to emit even greater quantities of NOx during the ozone season. [FN 21 ] See 77 Fed. Reg. 10324, 10328; see also 77 Fed. Reg.10342, 10344. Specifically, EPA has increased Mississippi’s state

wide ozone season NOx budget by 2,154 tons per year and is finalizing an additional increase of 115 tons per year. [FN 22] See 77 Fed. Reg. 10324, 10328; see also 77 Fed. Reg.10342, 10344.

These revisions are illustrated in Table 6 below.Internal Review Draft 5/4/2012

Page 115 of 149 23 Compare EPA, Final Revisions Rule Unit Level Allocations under the FIPs, available at http://www.epa.gov/airtransport/pdfs/Final%20Revis ions%20Rule%20Unit%20Level%20Allocations%20under%20 the%20FIPs.pdf

, with EPA, Revisions Rule Part II Unit

- Level Allocations under the FIPs, available at http://www.epa.gov/airtransport/pdfs/Revisions%20Rule%20Part%20II%20Unit

Level%20Allocations%20under%20t he%20FIPs.pdf

, and with EPA, Final CSAPR Unit Level Allocations under the FIP, available at http://www.epa.gov/airtransport/pdfs/UnitLevelAlloc.pdf

.
Despite the significant increases in allocations for South Carolina’s SO 2 emissions and Mississippi’s ozone season NOx emissions, EPA never modeled how these increased emissions would impact visibility at nearby Class I areas. EPA also did not compare the visibility impacts

under the revis ed CSAPR allocations to visibility conditions under BART for these Class I areas. As a result, EPA has failed to show that visibility will not decline in any Class I area due to the application of CSAPR. 40 C.F.R. § 51.308(e)(3)(i). EPA has also failed to show that there will be an overall improvement in visibility with CSAPR versus BART in light of these revisions. 40 C.F.R. § 51.308(e)(3)(ii). As a result, there is no basis for concluding that CSAPR will be “better

than BART” under the revised versions of CSAPR.Internal Review Draft 5/4/2012

Page 116 of 149 [FN 19] EPA’s spreadsheets setting forth CSAPR’s Unit Level Allocations contain discrepancies. That is, EPA’s spreadsheet containing “Part II Revised Allocations” shows a difference in allocations of 7,852 tons, whereas EPA’s

Direct Final Rule ind icates an increase of 8,013 tons. Regardless of this discrepancy, these allocations are significantly above what source specific BART limits would impose for these units. [FN 21] Mississippi is subject to CSAPR’s requirements during the ozone season only. [FN 22] EPA’s spreadsheets setting forth CSAPR’s Unit Level Allocations contain discrepancies. That is, EPA’s spreadsheet containing “Revised Allocations” show a difference in allocations of 2,111 tons, whereas EPA’s

Revised Rule states that the state’s allowances were increased by 2,154 tons. Similarly, EPA’s spreadsheet containing “Part II Revised Allocations” shows a difference in allocations of 112, whereas EPA’s Direct Final Rule indicates an increase of 115 tons. Regardless of this discrepancy, thes e numbers are significantly above what source specific BART limits would impose for these units.

Commenter: Earthjustice on behalf of other organizations
Comment:

Sinc e the publication of its CSAPR “ better

- than

- BART ” rule, EPA has weakened the CSAPR rule by providing several states with larger pollution allocations. EPA has yet to undertake any analysis demonstrating that CSAPR as revised is better than BART.

Commenter: Earthjustice/Texas
Comment:

EPA Failed t o Demonstrate That CSAPR i s better than BART because its Modeling a nd Assumptions a re Flawed Second, EPA’s modeling is flawed because it fails to incorporate revisions to CSAPR that significantly increase the emission allowances of Texas EGUs. The modeling t hus overestimates the visibility benefits of CSAPR. These flaws in EPA’s modeling arbitrarily and capriciously tip

both sides of the scale in favor of a determination that CSAPR is “better than BART.” See, e.g.

, State Farm , 463 U.S. at 43. In addition, the re are a number of other problems with EPA’s modeling more fully discussed in the overarching comments on the proposed rule which we incorporate by reference. 15

The flaws in EPA’s modeling are particularly noteworthy and problematic in Texas, because

eve n under this skewed modeling, EPA concludes that CSAPR is just barely “better than BART.” According to EPA, visibility at Big Bend and Guadalupe Mountains on the 20% best days would be the same under CSAPR and BART. Technical Support Document for

Demonstra tion of the Transport Rule as a BART Alternative (“TSD”), at 34, Table 3

- 5, Docket

No. EPA

- HQ

- OAR

- 2011

- 0729TSD. And under EPA’s flawed modeling, on the 20% worst days, visibility at Big Bend and Guadalupe Mountains would be just 0.1 dv better under CSAPR

c ompared to BART. Id. Consequently, a realistic and supportable set of modeling assumptions would likely show that CSAPR is not “better than BART,” as required by 40 C.F.R. §51.308(e)(3).

Commenter: Earthjustice/Texas

Comment:
EPA Overestimated CSAPR’s Visibility Benefits By Failing To Model Subsequent Revisions to

CSAPR That Increased Texas’s SO 2 and NOx Budgets EPA’s proposed rule also overstates CSAPR’s visibility benefits in Texas because it does not reflect revisions to CSAPR that significantly incr ease the SO 2 and NOx budgets of Texas EGUs.

See 77 Fed. Reg. 10324, 10327

– 28 (Feb. 21, 2012). EPA based its modeling and analysis on theInternal Review Draft 5/4/2012

Page 117 of 149 SO 2 and NOx budgets allocated to Texas EGUs under the final version of CSAPR published on August 8, 2011. See 76 Fed. R eg. at 82227. However, EPA’s subsequent revisions to the SO 2 and NOx budgets under CSAPR would allow Texas EGUs to emit significantly greater quantities of

SO 2 and NOx. Specifically, EPA increased Texas’s state

- wide SO 2 budget by 50,517 tons per year and its annual NOx budget by 1,375 tons per year. EPA, Final Revisions Rule State Budgets

and New Unit Set

- Asides TSD, at 3 (Feb. 2012) (Exh. 8). This results in a 21% increase in

Texas’s annual SO 2 budget compared to the initial Texas annual SO 2 budget modeled by EPA. Compare id.

, with 76 Fed. Reg. at 48262, 48269. Every BART eligible EGU in Texas received

increased unit

- specific SO 2 or NOx allocations under the revisions, as illustrated in Table 2

below. [FN 17]Internal Review Draft 5/4/2012

Page 118 of 149 The pr oposed rule excuses this failure to model the CSAPR revisions by stating that the

increases in SO 2 and NOx emissions are insignificant because overall SO 2 and NOx emissions will still decrease and CSAPR would still be “better than BART” on average at all C lass I areas across the United States. 76 Fed. Reg. at 82227; TSD at 61

– 64. However, EPA never discussed

how the increased SO 2 and NOx emissions from Texas EGUs would impact visibility at Big Bend, Guadalupe Mountains, and the other Class I areas most impa cted by Texas EGUs. EPA also did not compare the visibility impacts under the revised CSAPR allocations to visibility conditions under BART for these Class I areas. Therefore, there is no basis for concluding that

CSAPR will be “better than BART” under the revised version of CSAPR. EPA’s failure to

m

odel the revised CSAPR allocations are most significant in Texas.

Several states received increased SO 2 and NOx budgets under the revisions, but no state received an increase in its emissions budget as large as the increase Texas received. Texas EGUs will be permitted to emit an additional 50,517 tons of SO 2 annually under the revisions, while no other

state received an increased annual SO 2 budget of greater than 10,000 tons. Exh. 8 at 3

– 4. As a

result of additi onal pollutants emitted due to Texas’s disproportionate increase in its SO 2 budget under the revisions, Big Bend, Guadalupe Mountains, and nearby Class I areas impacted b y Texas EGUs will face increased visibility impairment that was never analyzed by EPA. EPA

c annot determine that CSAPR is better than BART in Texas and warrants a partial FIP until EPA has considered what CSAPR actually and currently requires.

In sum, EPA’s “better than BART” determination for CSAPR is based on faulty methodology and modeling that tips both sides of the scale in favor of a finding that CSAPR is “better than BART.” EPA overestimates the likely emissions reductions and visibility benefits of C SAPR forInternal Review Draft 5/4/2012

Page 119 of 149 Texas EGUs, while simultaneously underestimating the emissions reductions and visibility

benefits of BART controls under the RHR. Such a skewed “better than BART” analysis is arbitrary and capricious and violates the RHR’s required demonstration t hat a BART alternative

m ake s greater reasonable progress toward achieving the 2064 natural visibility goal. See State

F

arm , 463 U.S. at 43; Util. Air Regulatory Grp. , 471 F.3d at 1340; 40 C.F.R. § 51.308(e)(2) & (e)(3). 19

[ FN 17] Moreover, EPA recently pr oposed additional increases to Texas’s NOx budget. See 77 Fed. Reg. 10350 (Feb. 21, 2012). These additional proposed increases, which are not reflected in Table 2, would increase the state’s annual NOx budget by an additional 2,731 tons and its ozone seaso n NOx budget by 1,142 tons. Exh. 8 at 4. [FN18] Compare EPA, FIP Unit Level Allocations with Final Revisions to CSAPR (Feb. 2012) (Exh. 9), with EPA, Final CSAPR Unit Level Allocations under the FIP (Aug. 2011) (Exh. 10).

EPA Response:

Please see the technical memorandum to the Docket entitled “ Docket ID No. EPA

- HQ

- OAR

2011

- 0729: Regional Haze: Revisions to Provisions Governing Alternatives to Source

- Specific Best Available Retrofit technology (BART) Determinations, Limited SIP Disapprovals, and Federal Implementation Plans ” that describes additi onal sensitivity analysis that take into account changes to the Texas and George budget allocations.



### XIV

**. EPA’s Proposed Limited State Implementation Plan (SIP)**  **Disapprovals and Proposed Federal Implementation Plan (FIP) in Light of the Stay of CSAPR by t**  **he D.C. Circuit**

Commenter: Michael Olive, Progress Energy
Comment: In light of the D.C. Circuit Court's stay of CSAPR, the basis for EPA's SIP disapproval and FIP promulgation

- that CAIR has been replaced by CSAPR

- is no longer valid. EPA's justificatio n for its proposed action is the anticipated replacement of CAIR with CSAPR. 76 Federal Register at page 82229 ("proposing [this action] because of the termination of CAIR"). There fo re, as long

a s CAIR remains in place, EPA's proposal lacks a sound legal o r rational basis.

Procedurally, P rogress Energy recognizes that action on regional haze implementation plans is long overdue. The deadline for agency action on regional haze implementation plans was January 20 11 and the SIPs of the three states in which Progress Energy operates have been

pe nd ing with EPA in final fo rm for 18 months or more, depending on the state

. Progress Energy urges EPA to approve regional haze SIPs of those states, including North Carolina, South Carolina, and Florida, that chose to rely on CAIR to satisfy EGU BART obligations for S02 and

NOx. If and when the Court upholds CSAPR, EPA could proceed with a "SIP Call" pursuant to Clean Air Act (CAA) Sectio n 110 (k)(5) to prepare for CSAPR's implementation. App rov ing currently valid CAIR

- b ased SIP provisions and issuing a SIP Call when and if necessary would be in keeping with the CAA's cooperative federalism design.

Commenter: Cathy S. Woollums, MidAmerican Energy Holdings CompanyInternal Review Draft 5/4/2012

Page 120 of 149 Comment: MidAmerican believes EPA should, for the most par t, fully approve the SIPs submitted by states that relied on the imposition of either CAIR or CSAPR

- related controls as an interim measure to ensure that those states (or EPA for that matter) are not subject to further litigation as a way to force the requ irement to act on regional haze on a more arbitrary schedule. It appears that EPA has attempted to address this issue in many states through the publication of limited approvals in at least 12 states on February 28, 2012; in the case of Iowa, that proposal is at 77 Fed. Reg. 11974. While MidAmerican will submit comments separately on that proposal, we support such efforts to bring additional certainty to the Iowa regional haze SIP.

Commenter: Luminant
Comment:

B ecause CSAPR has been stayed by the U.S. Court of Appeals for the D.C. Circuit, leaving CAIR in place, EPA cannot at this time go forward with its proposals to 1) revise 40 C.F.R. § 51.308(e)(4) to replace CAIR with CSAPR, 2) disapprove Texas’s regional haze SIP revision that relies on CAIR,

and 3) impose a FIP in its place. Instead, EPA should issue a parallel regulation that makes CSAPR a “BART alternative” available to a State if and when CSAPR survives judicial scrutiny and becomes

effective in the State. EPA proposes to disapprove these SIPs because “CAIR and the CAIR FIP requirements . . . will only remain in force to address emissions through the 2011 control period and thus CAIR cannot be relied upon in a SIP as a substitute for BART or as part of a long

- term control strategy.” Id. at 82,22 1. EPA repeatedly refers to “the fact that the Transport Rule has now replaced CAIR” to support its proposed rulemaking and to “avoid[] the near

- term need for additional administrative steps on the part of [the affected] states.” Id. But CSAPR has not repl aced CAIR, as EPA expected. CSAPR has been stayed, and CAIR remains in effect. For this reason alone, EPA cannot go forward with the proposed rule as issued.

Commenter: Ken Kramer, Director, Lone Star Chapter, Sierra Club
Comment : At current, CSAPR has b een stayed by the D.C. Circuit Court. With the current uncertainty surrounding the implementation of CSAPR, the EPA cannot rely on compliance with this rule to satisfy the requirements of BART. In conclusion, we feel EPA's proposed alternative to the

BART rule is inadequate and will not sufficiently reduce haze from Class I areas. In this case, it is not acceptable to rely on CSAPR to achieve the goals of the Rule for the previously mentioned reasons. We urge the EPA to revise the Rule to ensure that pollut ion sources of Class I areas are required to make reductions of emissions that reflect the pollution reducing abilities of the best available pollution controls. Visitors to Big Bend and Guadalupe Mountains National Parks, and all Texans, deserve the full clean air benefits of the Regional Haze Rule.

Commenter: Mark R. Vickery, Texas Commission on Environmental Policy

Comment: The EPA should withdraw the proposed rule or re

- propose after resolution of the CSAPR litigation2, due to the District of Columbia (D.C.) Circuit Court of Appeals’ grant of a stay of

CSAPR. The proposed rule is insupportable given that the CSAPR is not currently in effect. Until the court issues its opinions, it is inappropriate at this time for EPA to issue a FIP to incorporate CSAP R as an alternative to BART, or to call on states to revise their regional haze SIPs if sources cannot comply with the transport rule programs. Once the court issues itsInternal Review Draft 5/4/2012

Page 121 of 149 opinion, the EPA should provide all stakeholders the opportunity to review and comment on the impact of the court’s opinion regarding the legality of the CSAPR on the proposed rule. In addition, the proposed limited disapprovals are inappropriate since they do not recognize that CAIR was, and remains, legally effective until the EPA replac es it as ordered by the D.C. Circuit. The EPA should provide for limited approvals for all states that legally relied upon CAIR as an element of their BART analysis for the period of time that states were legally

entitled to do so.

Instead, the EPA shoul d provide for limited approvals for all states that relied upon CAIR as an element of their BART analysis. Limited approvals are necessary to assure both states and sources that their reliance upon the CAIR was, and remains, valid during the period when CA IR remains legally effective. Although the D.C. Circuit issued an opinion finding that CAIR did not comply with the Federal Clean Air Act (FCAA), neither states nor sources should be penalized for their compliance with the CAIR while it was, and still rema ins effective. In fact, states were legally obligated to comply with CAIR. Upon the EPA’s request, the D.C. Circuit agreed to revise its opinion vacating the CAIR, substituting a remand order instead, obligating sources and states to implement CAIR until t he EPA fully complies with the remand order. Limited

a pprovals for all states that relied upon CAIR as an element of their BART analysis is

a ppropriate to give full effect to the emission reduction requirements and air quality planning

o bligations that wer e made pursuant to the requirements of CAIR. Limited disapprovals unfairly penalize sources and states by failing to acknowledge states’ compliance with the FCAA air quality planning requirements, CAIR, and the regional haze rule.

Commenter: Kathryn M. Amirpashaie/Sierra Club

Comment: CSAPR is currently the subject of a legal challenge, and the D.C. Circuit Court of Appeals has stayed implementation of the rule. See Order, EME Homer City Generation, L.P. v. EPA , No. 11

- 1302 (D.C. Cir. Dec. 30, 2011). Un less the stay is lifted, EPA cannot rely on CSAPR either to approve State Implementation Plans (“SIPs”) or finalize Federal Implementation Plans (“FIPs”) that fail to apply site

- specific BART requirements.

According to the RHR, a state or EPA may only im plement an emissions trading program as a

BART

- alternative if the BART

- alternative achieves greater reasonable progress than BART. Util. Air Regulatory Group v. EPA , 471 F.3d 1333, 1335

– 36, 1340 (D.C. Cir. 2006); 40 C.F.R. § 51.308(e)(2) & (3). In order to ensure greater reasonable progress, the BART

- alternative must include enforceable emission limitations and standards that operate to improve visibility across affected Class I areas without a decline in visibility in those areas. 40 C.F.R. § 51.308(e)(2) & (3). Thus, in order to constitute a permissible BART

- alternative, an emissions trading program must be valid, in effect, and result in actual emissions reductions.

Here, because the D.C. Circuit has stayed CSAPR, the rule currently has no legal effect and, therefore, is not a binding legal requirement on states or covered sources . [FN11] CS APR currently requires no emission reductions and imposes no emission limits and, thus, can in no way ensure greater reasonable progress than BART. See Util. Air Regu latory Group , 471 F.3d at

1340.Internal Review Draft 5/4/2012

Page 122 of 149 Even if CSAPR is ultimately upheld, the final layout of the rule is presently unknown. For one, there is a chance that CSAPR may be affirmed only in part. In addition, EPA itself ma y significantly weaken the rule

- EPA has already proposed and finalized revisions to CSAPR’s

unit

- specific allocations which increase the budgeted NOx and SO 2 allocations for a number of

EGUs in a number of states. See Final Rule, Revisions to Federal Implementation Plans To

Reduce Interstate Tr ansport of Fine Particulate Matter and Ozone , 77 Fed. Reg. 10324 (February 21, 2012); see also Direct Final Rule, Revisions to Federal Implementation Plans To Reduce Interstate Transport of Fine Particulate Matter and Ozone , 77 Fed. Reg. 10342 (February 21 , 2012). Because the final requirements under the rule are presently unknown, EPA can make no such finding that CSAPR will achieve greater reasonable progress to natural visibility conditions than BART.

In short, neither CSAPR (nor its predecessor CAIR) can serve as a valid BART

- alternative at this time. In contrast to RHR and its BART requirements, CSAPR does not guarantee emission reductions, or even prevent emission increases, at plants that cause or contribute to visibility impairment at Class I areas . EPA’s reliance on CSAPR as a “better than BART” alternative is premature at best. Thus, a final rule that relies on CSAPR (or CAIR) to exempt Alabama, Mississippi, North Carolina, and South Carolina EGUs from individual BART determinations

would violate the RHR since there can be no assurance that CSAPR will achieve greater reasonable progress towards natural visibility conditions in Class I areas than source

- specific

BART. [FN12]

[FN11] Even if the D.C. Circuit upholds CSAPR, EPA will have likely alrea dy issued its proposed regional haze plans for Alabama, Mississippi, North Carolina, and South Carolina. See Consent Decree, Nat’l Parks Conservation

Ass’n v. Jackson , No. 1: 11

- cv

- 01548 (ABJ) (D.D.C. Nov. 9, 2011) (EPA must propose its action on the regio nal haze plan for these states by February 15, 2012, with a final rule by June 15, 2012). [FN12] Instead, EPA must propose and issue FIPs for these states that require a full, case

- by

- case BART analysis at every BART

- eligible EGU within each state. See, e.g. , 40 C.F.R. § 51.308(e)(1)(ii)(A) & Pt. 51, App. Y (BART

determination must be based on a case

- by

- case analysis of the best available controls for each source); see also Util. Air Regulatory Group , 471 F.3d at 1335

– 36 (describing the process for determ ining BART).

Commenter: Earthjustice on behalf of a number of organizations

Comment: EPA cannot rely on CSPAR as a BART alternative because CSAPR‘s future is uncertain. CSAPR is the subject of a legal challenge, and on December 30, 2012, the D.C. Circuit Court of Appeals issued an order staying implementation of the rule. See Order, EME Ho mer City Generation, L.P. v. EPA , No. 11

- 1302 (D.C. Cir. Dec. 30, 2011). EPA cannot finalize a better

than

- BART rule and several implementing FIPs on the strength of a regulation that has been temporarily enjoined and that is therefore not in effect.

To reduce the air pollution that contributes to haze, the CAA requires each state to inc lude in its

SIP “ a requirement ” that ce rtain major stationary sources “ shall procure, install, and operate . . . the best available retrofit technology. ” 18 CAA § 169A(b)(2 )(A), 42 U.S.C. § 7491(b)(2)(A); 40 C.F.R. § 51.308(e). As discussed above, substituting a trading program for BART requirements is contrary to the statute, but to the extent EPA seeks to rely on an “ alternative ” program in place of BART, that program must constitute a “ requirement ” as well. So long as CSAPR is stayed, it cannot qualify as a requirement that could apply in place of BART.Internal Review Draft 5/4/2012

Page 123 of 149 Further, all elements of any FIP imposed by EPA must be enforceable. See CAA §§ 110(a)(2)(A), (C), 42 U.S.C. §§ 7410(a)(2)(A), (C) (r equiring haze plans to include “ enforceable emissions

limitation s” and “ to provide for the enforcement of ” all adopted measures in the plan). Thus, EPA cannot rely on CSAPR while a stay renders the program‘s requirements unenforceable. Given the pressing need to finalize regional haze plans around the country and to put all states o n course to achieving Congress’ visibility goals, which have now languished for decades, it is reckless for EPA to propose reliance on CSAPR in place of BAR T. Unless the program is upheld in its entirety, EPA will be obliged to revisit the many plans that seek to rely on CSAPR. Even if CSAPR is upheld, it is unclear how long it will take for ongoing litigation to play out in the Courts, and in the meantime, h aze plans in as many as 28 states could be stalled because they rely on CSAPR as a substitute for BART. For this practical reason alone, EPA should abandon

its “ better than BART ” approach and associated FIP proposals.

Commenter: Earthjustice/Texas
Commen t:
CSAPR also cannot serve as a valid BART

- alternative in the Texas partial FIP because the D.C. Circuit has stayed CSAPR’s implementation. See Order, EME Homer City Generation,L.P. v.

EPA , No. 11

- 1302 (D.C. Cir. Dec. 30, 2011) (Exh. 5). According to the R HR, states or EPA may only implement an emissions trading program as a BART

- alternative if the BARTalternative achieves greater reasonable progress than BART. Util. Air Regulatory Grp. , 471 F.3d at 1336, 1340; 40 C.F.R. § 51.308(e)(2) & (e)(3). A BART

- alte rnative must include enforceable emission limitations and a demonstration that the alternative will result in an average overall improvement in visibility across affected Class I areas without a decline in visibility at any Class I area. 40 C.F.R. § 51.308 (e)(2)(iii), (vi) & (e)(3). Consequently, an emissions trading program must be valid, in effect, and result in actual emissions reductions in order to constitute a permissible

BART

- alternative.

Here, however, because the D.C. Circuit stayed CSAPR, it curr ently has no legal effect and is not a binding legal requirement on states and covered sources. 10 CSAPR plainly cannot ensure greater reasonable progress than BART if it is not in effect. See Util. Air Regulatory Grp. , 471 F.3d at 1340. Further, because CS APR is stayed, the invalidated CAIR remains in effect in Texas and other states covered by CAIR. However, as EPA correctly recognized, regional haze SIPs that rely on the invalidated CAIR as a BART

- alternative, such as Texas’s SIP, must be disapproved. 76 Fed. Reg. at 82221, 82229. For that reason, EPA proposed disapproval of Texas’s regional haze SIP to the extent it relies on CAIR to reduce SO 2 and NOx emissions from

BART

- eligible EGUs in the state. See id. at 82221; Texas SIP at 9

- 1. The Conservation Gr oups support that disapproval.

In short, neither CSAPR nor CAIR can serve as a valid BART

- alternative at this time. Accordingly, EPA is left with one option: it must propose and issue a FIP for Texas that conducts a full BART analysis at every BART

- eligi ble EGU in Texas and requires appropriate BART controls at every EGU that is subject to BART. See, e.g. , 40 C.F.R. § 51.308(e)(1)(ii) & Pt. 51, App. Y (BART determination must be based on a case

- by

- case analysis of the best

available controls for each sour ce). A final rule that relies on CSAPR or CAIR to exempt BART

eligible EGUs in Texas from individual BART determinations would violate the RHR.Internal Review Draft 5/4/2012

Page 124 of 149 Even if the D.C. Circuit upholds CSAPR, the court is not likely to make a decision until after

EPA is schedule d to issue its proposed regional haze plan for Texas on May 15, 2012. See Consent Decree, Nat’l Parks Conservation Ass’n v. Jackson , No. 1: 11

- cv

- 01548 (ABJ), at 5 (D.D.C. Nov. 9, 2011) (EPA must propose its action on the regional haze plan for Texas by Ma y 15, 2012, with a final rule by November 15, 2012) (Exh. 6). Issuance of Texas’s regional haze plan is far behind schedule, and it is imperative that Congress’s mandate to remedy visibility impairment at Class I areas not be further delayed due to uncerta inty regarding a separate rule. Congress first amended the Clean Air Act in 1977 to require the elimination of human

- caused visibility impairment at Class I areas, and EPA issued the RHR in 1999. 42 U.S.C. § 7491; 64 Fed. Reg. at 35714. However, due to a s eries of delays, EPA has not yet approved the regional haze plan for Texas. See, e.g. , Exh 6 at 2, 5.

Commenter: Kristin A. Henry, Sierra Club
Comment:

Unless the CSAPR Stay is Lifted, EPA Cannot Rely on CSAPR to Approve Indiana’s Regional

Haze FIP

EPA cannot rely on CSAPR as a BART alternative because CSAPR’s future is uncertain. CSAPR is the subject of a legal challenge, and on December 30, 2012, the D.C. Circuit Court of Appeals issued an order staying implementation of the rule. See Order, EME Homer City Generation, L.P. v. EPA, No. 11

- 1302 (D.C. Cir. Dec. 30, 2011). EPA cannot finalize the state of Indiana implementing FIP on the strength of a regulation that a court has temporarily enjoined. At the very least, EPA must await a final decision as to C SAPR’s legality and enforceability, as relying on a stayed rule could seriously complicate orderly implementation of the regional haze program. If EPA finalizes the proposed Indiana FIP, which relies on CSAPR, before the court issues a final decision, and CSAPR is ultimately struck down, the Indiana FIP would require revision, further pushing back the already delayed implementation of the Regional Haze Rule, including application of source specific BART at polluting old coal plants in Indiana. In light of

t he stay, CSAPR is not currently a viable BART alternative.

Indiana cannot rely on an enjoined regulation that may never take effect to provide emissions

reductions that the state must make to “obtain its share of the emission reductions needed to meet

the progress goal[s]” for Class I areas. See 40 C.F.R. § 51.308(d)(3).

Commenter: Utility Air Regulatory Group (UARG)
Comment: EPA is also, however, proposing limited disapproval of the regional haze SIPs of those states that have relied on EPA’s CAIR = BART Rule and is proposing FIPs “to replace reliance on the

C AIR requirements in these SIPs with reliance on the Transport Rule as an alternative to

BART.” Id . The proposed limited SIP disapproval and the proposed FI P promulgation are neither necessary nor appropriate. EPA proposes to determine that SIPs that rely on CAIR do not fully satisfy all of the CAA’s regional haze SIP requirements. Id. at 82221, 82223, 82229. EPA’s

s tated reason for this proposed course of a ction is the D.C. Circuit’s remand of CAIR and its expected replacement by CSAPR. As UARG has stated in four other pending EPA rulemaking proceedings concerning proposed EPA actions on regional haze SIPs for four states that are subject to CAIR (and subjec t to CSAPR, as that rule was promulgated in 2011), CAIR remains in effect, and SIPs that rely on CAIR as a BART alternative are fully consistent with EPA’sInternal Review Draft 5/4/2012

Page 125 of 149 existing regulations. See 40 C.F.R. § 51.308(e)(4). EPA acknowledges as much in the proposed

CSAPR = BART Rule. 76 Fed. Reg. at 82221 (“These states, fully consistent with the EPA’s regulations at the time , relied on CAIR requirements to satisfy the BART requirement and the requirement for a long

- term strategy sufficient to achieve the state

- adopted reas onable progress goals.”) (emphasis added). Because SIPs that rely on CAIR consistent with § 51.308(e)(4)

c omply with applicable law, EPA should promptly promulgate full and unconditional approval

o f those SIPs. The D.C. Circuit’s order staying CSAPR makes clear that, consistent with prior

E PA statements to the court, CAIR will remain in place at least until the court’s resolution of the legal challenges to CSAPR. Moreover, it is reasonable to expect that, if the court were to vacate

CSAPR at the conclusion of its merits review in the litigation, CAIR likely would continue in effect while EPA on remand addressed any necessary revisions to or possible replacement of CSAPR in response to the court’s decision. Accordingly, even if there were a valid legal basis for EPA’s proposed limited SIP disapprovals at the time EPA signed its proposed action to partially disapprove CAIR = BART SIPs and promulgate CSAPR = BART FIPs prior to issuance of the CSAPR stay (and there was not), no such basis even arguably exists at this time.

EPA easily could

-- and should

-- avoid the problems that would stem from its proposed approach to replacing CAIR with CSAPR

-- and constructively address appropriate state reliance

on the CAIR = BART and CSAPR = BART alternatives

-- by modify ing its proposed rule. Rather than rewrite 40 C.F.R. § 51.308(e)(4)9 by “replacing the name of CAIR with the name of

r ather than rewrite 40 C.F.R. § 51.308(e)(4)9 by “replacing the name of CAIR with the name of

t he Transport Rule,” id . at 82229, EPA shoul d promulgate its proposed new CSAPR = BART regulatory text as a new, added paragraph within 40 C.F.R. § 51.308(e), to be available in parallel with the existing CAIR = BART provision at § 51.308(e)(4), which should be retained

. Using this approach, EPA’s r ules would simply provide that a state may rely on either CAIR = BART or CSAPR = BART, or both, where CAIR and/or CSAPR, respectively, applies in that state. With such a modification to its rules, EPA would make clear that CAIR = BART remains operative and fully available to states, as it should be, while permitting any state on which EPA imposed CSAPR requirements to adopt

-- in lieu of or in addition to CAIR = BART, as the state deems appropriate

-- a CSAPR = BART SIP provision, which the state could adop t as a contingency matter to become applicable if and when CSAPR becomes effective in that state. In addition, EPA should make clear that it will promptly propose and promulgate approval of all SIP provisions that rely on CAIR = BART. Moreover, if CSA PR be comes effective in a state

b efore the state has amended its SIP to incorporate the CSAPR = BART provision (if it wishes to

d o so), then the state must be allowed a reasonable period of time to do so.

Commenter: American Electric Power (AEP)
Comment:

While in support of the proposed rule, AEP would recommend the agency make that determination as another paragraph in the regulation (40 CFR 51.308(e)(4)), leaving the current determination that CAIR equals BART untouched. While the agency did not know the CSAP R would be stayed at the time of the proposal, the agency could not have known that during the stay, CAIR remains in effect and the states that incorporated the use of CAIR for their reasonable progress method should be able to remain in effect. There is n o need to disapprove SIPs that rely on CAIR for reasonable progress. By adding to the paragraph instead of substituting into the existing paragraph and once the court challenges are complete, the states would have the abilityInternal Review Draft 5/4/2012

Page 126 of 149 to change from the paragraph e ndorsing CAIR to the paragraph endorsing CSAPR without having the SIP disapproved. Please consider the comments by UARG, EEI and our suggestion

above.

Commenter: Duke Energy
Comment: Duke Energy believes EPA’s proposed limited SIP disapproval and propose d FIPs is neither necessary nor appropriate, and should not be finalized. Because the CAIR will remain in place at least until the D.C. Circuit’s resolution of legal challenges to the CSAPR, and possibly longer depending on the outcome of the litigation, S IPs that rely on CAIR as a BART alternative are fully consistent with EPA’s existing regulations and should be promptly and unconditionally approved.

To avoid the problems that would be created by EPA’s premature replacement of CAIR = BART

with CSAPR = B ART, EPA should keep CAIR = BART in place and promulgate a parallel CSAPR = BART regulation. This approach would provide that a state may rely on either CAIR = BART or CSAPR = BART, where CAIR and/or CSAPR, respectively, applies in that state. This

approac h would make clear that CAIR = BART remains operative and fully available to states, while permitting any state on which EPA imposed CSAPR requirements to adopt a CSAPR = BART SIP provision as a contingency matter, to become applicable if and when CSAPR

be comes effective in that state.

Additionally, if CSAPR becomes effective in a state before the state has amended its SIP to incorporate the CSAPR = BART provision (if it wishes to do so), then the state must be allowed a reasonable period of time to do so

.

Commenter: Myra C. Reese, South Carolina Department of Health and Environmental Control (DHEC)

Comment: DHEC objects to the EPA moving forward with this action given the December 30, 2011 stay of CSAPR by the U.S. Court of Appeals for the D.C. Circuit ("Stay") and without a final Regional Haze SIP approval.

The Stay directed the EPA to continue to enforce the Clean Air Interstate Rule (CAIR), which the same court had remanded to the EPA in December 2008. Since the EPA is continuing to implement CAIR, proposing to strike the regulations at 40 C.F .R. § 51.308( e)( 4) (2011) that allow sources to use CAIR to meet the requirements of the Regional Haze program is premature and will lead to regulatory confusion. South Carolina's CAIR sources have made significant commitment to continue to implement and operate CAIR controls. As a permitting authority, DHEC notes that the EPA's proposal to replace CAIR with CSPAR before the EME Homer City case is resolved will impair our ability to effectively implement the Regional Haze program in

South Carolina.

The EPA should fu lfill its obligations to fully approve SIP submittals that have relied on CAIR. The EPA should also continue the rulemaking process for the technical determination that CSAPR is better than BART. However, the EPA should not remove the CAIR provisions at 40Internal Review Draft 5/4/2012

Page 127 of 149 CFR § 51.308(e)(4) (2011) that effectuate the successful implementation of the Regional Haze program. To do so would be premature and result in a fundamental gap in the regulatory

framework.

That the EPA is still considering this proposal even after the Stay is further evidence that the EPA is not adequately considering implementation of its rules, and the relationships among these rules. We have seen this problem in the 2010 Sulfur Dioxide (S02) National Ambient Air Quality Standard (NAAQS), the 2010 Nit rogen Dioxide (N02) NAAQS, the 1997 and 2008 Ozone NAAQS, and the many iterations of the Boiler MACT rule. The EPA's lack of attention to implementing its rules and fostering productive relationships with state regulatory partners is impairing its

- and st ates’

- ability to effectively achieve environmental goals.

Commenter: Michael L. Krancer, Pennsylvania Department of Environmental Protection (DEP)

Comment: DEP understands EPA's rationale for proposing a limited disapproval of the regional haze SIPs that have been submitted by states, including Pennsylvania, that rely on CAIR requirements to satisfy the BART requirements. We agree that once in place, the FIPs would satisfy the BART requirement, only apply to EOUs in the affected states and only apply to pollutants covered by the Transport Rule, and that they would also be part of satisfying the long

- term strategy to achieve the reasonable progress goals establ ished by the Class I area states. However, in a separate action on January 26, 2012, EPA proposed a limited approval of Pennsylvania's Regional Haze SIP revision. EPA found that the Commonwealth's revision to the plan meets Clean Air Act requirements of Se ction 110(a)(2) requirements relating to visibility protection for

the 1997 8

- hour ozone and fine particulate matter (PM2.5) standards and 2006 24

- hour PM2.5 NAAQS (77 FR 3984). In the January 26th proposal, EPA agrees with the Department's BART analyses a nd conclusions but does not "address the Commonwealth's reliance on CAIR to meet certain regional haze requirements" (77 FR 3997).

The DEP understands that once a state submits an approvable revision to its regional haze SIP incorporating the requirements of the Transport Rule, the EPA must withdraw the FIP for the Regional Haze Program. In the event that the D.C. Circuit Court remands all or a part of the Transport Rule to EPA, given the length of time it will take to finalize a revised Transport Rule,

EP A should ensure that for the purposes of the Regional Haze SIPs, EPA can take final approval action on SIP revisions relying on CAIR for BART for EGUs. States can and should address the issue again in their five

- year progress reports and SIP revisions due in 2018.

Commenter: James A. Capp, Georgia Environmental Protection Division

Comment: In proposed language of 52.580(a), EPA is proposing a limited disapproval of Georgia’s State Implementation Plan for Regional Haze submitted to EPA on February 11, 2010 (hereinafter referred to as Georgia’s Regional Haze SIP), to the extent that it does not meet the requirements of 51.308(d)(3) and (e) of the federal Regional Haze rule. On page 82229 of the preamble to the

proposal, EPA states that it is doing so because “these states, fully consistent with the EPA ‟ s regulations at the time, relied on CAIR requirements to satisfy the BART requirement and the requirement for a long

- term strategy sufficient to achieve the state

- adopted reasonable progressInternal Review Draft 5/4/2012

Page 128 of 149 goals.” In Georgia ’s Regional Haze SIP, EPD relied on CAIR to satisfy the BART requirement only for the BART exemption modeling for BART

- Eligible EGUs and for the BART determination for Georgia Power’s Plant Bowen.

EPA’s stated basis for the SIP disapproval is that CAIR is no longer in effect and that it has been replaced by the Transport Rule. The fact of the matter is, at the close of the comment period on this proposal, due to the latest ruling by the D.C. Circuit Court of Appeals, CAIR is in effect and the Transport Rul e is not. EPA should approve the Regional Haze SIPs on the basis of the previously adopted 2005 rulemaking that CAIR is “better

- than

- BART”.

EPA admits in the Preamble that states, “... fully consistent with the EPA’s regulations at the time, relied on CAIR requirements to satisfy the BART requirement and the requirement for a long

- term strategy sufficient to achieve the state

- adopted reasonable progress goals.” In fact, these regulations, notably 40 CFR 51.308(e)(4), are still in place today. EPA should leav e 40 CFR 51.308(e)(4) as it is and EPA should fully approve our Regional Haze SIP.

Commenter: Paul Bailey, American Coalition for Clean Coal Electricity (ACCCE)
Comment: EPA’s proposal to disapprove state RH SIPs that rely on CAIR for EGU BART, and its

c omplementary proposal to impose RH FIPs under which compliance with CSAPR will be deemed to be compliance with EGU BART, now appears to be premature in light of the Court’s CSAPR stay decision. These EPA proposals were based on the assumption that CAIR wou ld sunset and CSAPR would commence at the beginning of this year. That result did not happen, and CAIR remains in place. In fact, given the Court’s implicit determination in issuing the stay that Petitioners have a likelihood of succeeding with their claim s on the merits, there is legitimate doubt as to whether CSAPR (at least in its present form) will ever go into effect. Thus, the best course right now is for EPA to maintain the status quo that compliance with CAIR constitutes compliance with BART for EG Us. EPA should take no action on its current CSAPR=BART proposal, nor should it disapprove RH SIPs that rely on CAIR, nor should it impose FIPs premised on the assumption that CSAPR will ultimately go into effect, at least until

there is a Court decision c larifying the legal status of CAIR and CSAPR. With a Court decision seeming more likely than not by mid

- year, this short delay does not result in prejudice to any party or any harm to the environment.

ACCCE is aware that the Court may ultimately uphold CS APR on the merits and that, even if CSAPR is overturned on the merits; the Court may let it go into effect pending remand. And ACCCE is also aware that, given the North Carolina v. EPA decision, ultimately CAIR will have to be replaced or at least changed on remand, whatever the result of the CSAPR litigation. But those possible outcomes do not change the fact that the current status quo is that CAIR is in effect and CSAPR is not and that the future of EPA transport rulemaking is uncertain. In fact, if

the Court overturns CSAPR on the merits based on a finding of fundamental flaws, and CSAPR never goes into effect, EPA may need a lengthy period of time to conduct a rulemaking to replace CSAPR, with CAIR likely remaining in place during this period.

Commente r: Susan Schumann, Florida Electric Power Coordinating Group, Inc. (FCG)
Comment:Internal Review Draft 5/4/2012

Page 129 of 149 The substantive basis for EPA's SIP disapproval and FIP promulgation

- that CAIR has been replaced by CSAPR

- is entirely absent because the D.C. Circuit Court has stayed CSA PR and left CAIR in place. EPA's sole justification for its proposed action is the anticipated replacement

of CAIR with CSAPR. See, e.g., 76 Fed. Reg. at 82229 ("proposing [this action] because of the termination of CAIR"). Thus, as long as CAIR remains in place, EPA's proposal lacks a legal basis. CAIR will remain in place until the Court lifts the stay and EPA determines a path to properly implement CSAPR; as a practical matter, since CSAPR is an annual and seasonal program, the earliest possible start da te is likely to be January 1, 2013.

Not only is EPA's proposed action clearly premature, but the fact that CAIR remains in place compels EPA to approve of Regional Haze SIPs relying on CAIR. This is a point EPA admits, explicitly acknowledging that SIP p rovisions that rely on CAIR to satisfy Regional Haze BART requirements are fully consistent with EPA's regulations and its "better

- than

- BART"

determination for CAIR. See 76 Fed. Reg. at 82223; 82229. Similarly, amending 40 CFR § S1.308(e)(ii)(4) to remove CAIR as a "better

- than

- BART" alternative would be arbitrary and capricious so long as CAIR remains in effect given that EPA has continually affirmed its “better

than

- BART" determination for CAIRI In fact, given the factual circumstances and procedural

pos ture, the only reasonable action for EPA to take is to approve pending SIP provisions that rely on CAIR to satisfy BART, and deal with CSAPR when and if it is upheld.

Commenter: Joe L. Citta, Jr., Nebraska Public Power District (NPPD)
Comment:

The above

- referenced EPA action, in summary, considers, among other things, proposing that the trading program in the Cross

- State Air Pollution Rule ("CSAPR") achieves greater reasonable progress towards the national goal of achieving natural visibility conditions in Class 1

areas than source

- specific Best Available Retrofit Technology ("BART”) in those states covered by the CSAPR. In effect, EPA is proposing that the CSAPR trading program can be substituted for BART in CSAPR states. As EPA is aware, the United Stat es Court of Appeals for the District of Columbia on December 30, 2011, ordered a stay of EPA's "Federal Implementation Plans: Interstate Transport of Fine Particulate Matter and Ozone and Correction of SIP Approvals; Final Rule" 76 Fed. Reg. 48,208 (August 8, 2011). The Court ordered the stay pending a resolution of petitions for review. In consequence of the stay, no party, including NPPD or the EPA, can predict whether all or portions of CSAPR will ultimately become effective, cannot predict what

revisio ns will ultimately be made to CSAPR, and cannot predict the date when CSAPR may become effective, if at all. Therefore, NPPD requests that EPA withdraw the above

- referenced action until the status of CSAPR is ultimately determined and or becomes effective.

Commenter: Michael P. Halpin, Florida Department of Environmental Protection

Comment:

A s you are aware, CSAPR was stayed, and CAIR was reinstituted by the U.S. Court of Appeals for the District of Columbia Circuit on December 30, 2011. Because CAIR is currently in place (and CSAPR is not) and it is unknown how or when the U.S. Court of Appeals will ultimately resolve the judicial challenges to CSAPR and CAIR, it is premat ure for EPA to replace its "CAIR is better

- than

- BART" rule with the "CSAPR is better

- than

- BART" rule. Accordingly, it is inappropriate for EPA to disapprove Florida's proposed Regional Haze SIP,Internal Review Draft 5/4/2012

Page 130 of 149 which relies on CAIR, which has been await i ng EPA's approval since August 2010, and which substantively meets Regional Haze goals.

Notwithstanding CAIR's legal deficiencies as a mechanism to control the interstate transport of pollutants as required by the Clean Air Act, EP A has previously determined that the poll ution control projects which would be necessary to impleme n t CAIR will adequately address Regional Haze. Since CAIR has been in effect, Florida utilities have expended millions of dollars to significantly reduce emissions of both S02 and NOx (i.e., the key compounds which contribute to the formation of fine particulate and impair visibility). Specifically, NOx emissions have decreased by approximately 64% or over 65,000 tons during the ozone season, and S02 emissions have decreased by 60% or over 280,000 to ns annually

. These very real reductions

have e xceeded our projections in the proposed Regional Haze SIP and have resulted in Florida's

visibili t y improving at a rate consistent with the nominal straight

- line glide slope toward t he 2064 goal. As several additional CAIR

- related pollution control projects are completed, the State will see further reductions. For example, new selective catalytic re d uct i on systems at Gulf Power

C rist Unit 6 and Orlando Utilities Commission Stanton Unit 1 are on pace for an or derly construction and startup, and extremely low emitting, natural gas fueled combined cycle generating units are under construction in place of residual oil

- fueled units at the Florida Power & Light Cape Canaveral and Riviera Plan t s, a n d are soon to be s tarted at Port Everglades.

Since these costly projects were undertaken to implement CAIR

- related pollution control, since they are currently in place in Florida, and since the results demonstrate that they have been and

continue to be a more

- than

- adequate mechanism f or achieving reasonable progress towa r ds restoring the natural visibility conditions in Florida's Class I areas, Florida requests that you approve its current proposed Regional Haze SIP. T o the extent that the resolution of the current legal ch allenge to CSAPR necessitates a future SIP call, Florida would then work cooperatively

with EPA

- as contem p lated under the Clean Air Act

- to revise its approved Regional Haze SIP on

a reasonable schedule

.

Commenter: Susan Schumann, Florida Electric Power C oordinating Group, Inc. (FCG)

Comment: Rather than codifying the CSAPR "better

- than

- BART" determination by replacing all references to CAIR in 40 CFR § 51.308(e)(ii)(4) with references to CSAPR, EPA should simply codify

both its CAIR and CSAPR "better

- than

- BART" determinations side

- by

- side. This would ensure necessary flexibility in light of the uncertainty surrounding CAIR and CSAPR's status due to the stay and pending judicial review of CSAPR.

Commenter: Louis P. Pocalujka, Consumers Energy

Comment:

Curr ently, CSAPR is stayed pending the D.C. Circuit’s resolution of multiple petitions for review of the rule. As a result, if and when CSAPR will take effect remains an open question. Consequently, Consumers Energy believes that EPA should proceed with approv al regional haze SIPs, like the State of Michigan’s, that rely upon CAIR. Even if there was a valid basis for EPA’s proposed limited SIP disapproval at the time EPA signed its proposed action on the December 23, 2011, no such basis exists at this point in time. CAIR remains in effect. Therefore, EPA should act to remove any ambiguity and affirm that EPA’s CAIR=BART rule remains aInternal Review Draft 5/4/2012

Page 131 of 149 valid and legally effective part of its BART regulations and that states may continue to rely on that provision. For states in th e CAIR program, consistent with EPA’s regulations currently in effect, EPA should promulgate a full and unconditional approval of the states’ SIPs.

In order to account for any change in the current legal status of CAIR or CSAPR, EPA should

consider final izing its determination that CSAPR=BART, while leaving current regulations regarding the CAIR=BART determination in place. This approach could obviate the need for additional rulemaking in the event CSAPR is upheld and/or the current stay is lifted.

Comm enter: John D. Kinsman, Edison Electric Institute (EEI)

Comment: EEI also believes that EPA should approve regional haze SIPs that rely upon CAIR. Even if

there was a valid basis for EPA ‟ s proposed limited SIP disapproval at the time EPA signed its

propose d action on the December 23, 2011, no such basis exists at this time. Moreover, nothing has occurred which would prevent EPA from maintaining its previous position that the emission reductions required by CAIR are sufficient to satisfy BART. Under a previo us decision of the D.C. Circuit Court of Appeals, CAIR remains in effect. Therefore, EPA should act to remove

any ambiguity and affirm that EPA ‟ s CAIR=BART rule remains a valid and legally effective part of its BART regulations and that states may continue to rely on that provision. For states in

the CAIR program consistent with currently effective EPA ‟ s regulations

– including 40 C.F.R. § 51.308(e)(4)

– EPA should promulgate a full and unconditional approval of the state SIP.

EEI believes that EPA needs to clarify its regulatory policies on transport programs that will satisfy BART obligations during the time that CSAPR remains under review by the D.C. Circuit Court of Appeals and thereafter. First, as per above, CAIR=BART regulations must remain in

effec t during the entire time that CAIR is legally effective. There is no reason that EPA should take any action through regulation or in settlement of litigation that would act to jeopardize this determination. Second, to account for any change in the current legal status of CAIR or CSAPR, EPA should finalize its determination that CSAPR=BART while leaving current regulations regarding the CAIR=BART determination in place. This approach could obviate the need for additional rulemaking in the event CSAPR is uphe ld and/or the current stay is lifted. Finally, EPA should consider other regulatory alternatives which would ensure that there is a smooth transition between CAIR=BART regulatory provisions and any follow

- on transport rule that incorporates a similar deter mination. In all cases, EPA should ensure that states within the CAIR and CSAPR regions are able to rely on these transport programs to address BART obligations.

Commenter: Luminant:
Comment: Texas submitted to EPA in February 2009 a regional haze SIP using CAIR as an alternative to BART requirements. CAIR is the interstate rule that is currently in effect, and EPA itself has determined

that CAIR is better than BART. See 70 Fed. Reg. at 39,136

– 37. That determination was upheld by the D.C. Circuit. See Util. Air Regulatory Grp. , 471 F.3d at 1340

– 41. Therefore, EPA should approve Texas’s regional haze SIP, given that EPA provides no reason in the proposed rule that would justify disapproval besid es the fact that Texas’s revision is based on CAIR. CAIR constituted EPA’s regulations “at the time,” and CAIR remains in place. Because Texas’sInternal Review Draft 5/4/2012

Page 132 of 149 submission undisputedly meets the current requirements of the Clean Air Act, EPA must approve it. 42 U.S.C. § 7 410(k) (l). EPA should approve Texas’s submission now and not simply wait for the D.C. Circuit’s final decision on the legality of CSAPR. Texas’s SIP revision has been pending before EPA for three years, and thus EPA’s failure to act is a violation of the time constraints imposed by the statute. 42 U.S.C. § 7410(k). Further, even under the current expedited briefing schedule and argument, CSAPR’s legality will likely not be finally decided in 2012 and may not be finally decided for years. Further, should t he D.C. Circuit vacate or remand CSAPR on any grounds, it is a reasonable probability that the Court would leave CAIR in place to maintain its environmental benefits, as it did previously. Given the uncertain future of CSAPR

and the fact that CAIR remains in place, EPA should approve Texas’s regional haze SIP, which is based on CAIR requirements. CAIR, as EPA has previously determined, is undisputedly better than BART and is available as a BART alternative under EPA’s current regulations, and EPA

has identi fied no shortcomings in Texas’s SIP revision that would prevent approval. EPA should approve Texas’s regional haze SIP as submitted to EPA. If, at some point in the future, CSAPR becomes effective as to Texas, Texas can revise its SIP to

utilize CSAPR as a BART alternative. Or, should CAIR be discontinued at some point in the future and not replaced with another regional trading program equivalent to BART, Texas would then conduct its BART analysis for EGUs in the State, perform updated modeling to determi ne which, if any, EGUs in the State “cause or contribute to any impairment of visibility” in a Class I area, and propose a revision to its SIP to address any such impairment. Thus, under any scenario, a FIP is premature and inappropriate at this time.

Com menter: Utility Air Regulatory Group (UARG)
Comment:

UARG does not believe that EPA’s proposed decision to issue FIPs to effect that policy choice is necessary or warranted, and UARG continues to oppose issuance of limited disapprovals of SIPs

that have r elied on CAIR as a BART alternative, for the reasons stated in its previous comments on proposed EPA actions with respect to implementation plans for individual states. (Comments of the Utility Air Regulatory Group on the U.S. Environmental Protection Agen cy’s Proposed Rule: Approval and Promulgation of Air Quality Implementation Plans; State of Tennessee; Regional Haze State Implementation Plan, EPA Docket ID No. EPA

- R04

- OAR

- 2009

- 0786

- 0022 (July 11, 2011); Comments of the Utility Air Regulatory Group on t he U.S. Environmental Protection Agency’s Proposed Rule: Approval and Promulgation of Air Quality Implementation Plans, West Virginia; Regional Haze State Implementation Plan, EPA Docket ID No. EPA

- R03

- OAR

- 2011

- 0092

- 0040 (Aug. 12, 2011); Comments of the Ut ility Air Regulatory Group on EPA’s Proposed Approval and Promulgation of Air Quality Implementation Plans;

C ommonwealth of Kentucky; Regional Haze State Implementation Plan, EPA Docket ID No.

EPA

- R04

- OAR

- 2009

- 0783

- 0022 (Jan. 17, 2012); Comments of the Uti lity Air Regulatory Group on EPA’s Proposed Approval and Promulgation of Air Quality Implementation Plans; Commonwealth of Virginia; Regional Haze State Implementation Plan, EPA Docket ID No.

EPA

– R03

– OAR

– 2011

– 0091

- 0016 and EPA

– R03

– OAR

– 2011

– 0584

- 0028 (Feb. 24, 2012).)

EPA Response: [placeholder]Internal Review Draft 5/4/2012

Page 133 of 149 

### XV

**. States Should be Given the Opportunity to Remedy CAIR** 

**- Dependent** 

**SIPs**

Commenter: Luminant

Comment: In any case, even if CSAPR becomes effective as to Texas at some point in the future, Texas should be given the opportunity to revise its SIP to utilize CSAPR as a BART alternative. There is simply no reason for EPA to delay its action on Texas’s regional haze SIP submission any longer

— it should and must approve the submission immediately.

Commenter: Dale Hurst, C hief, Alabama Department of Environmental Management
Comment: On Friday, December 30, 2011, EPA proposed to issue limited state implementation plan (SIP) disapprovals and Federal Implementation Plans (FIPs) concerning provisions governing

alternatives to s ource

- specific best available retrofit technology (BART) as they apply to Regional Haze SIPs (76 FR 82219). EPA proposes to issue these FIPs to address what they

believe are deficiencies in all of the CAIR

- dependent regional haze SIPs. The FIP is intended to provide a mechanism for EPA to replace reliance on the CAIR requirements in these SIPs with

reliance on the Cross

- State Air Pollution Rule as an alternative to BART.

We do not agree with this approach because EPA continues to erode states’ abilities to rectify deficiencies in SIPs. States should be given every opportunity provided by the Act to make revisions to correct SIP deficiencies before EPA acts by imposing a FIP. This approach would be

consistent with the clear intent of the Clean Air Act.

EPA Response: Please see section VI.C of the preamble for a discussion of EPA’s legal requirements with respect to Federal Implementation Plans (FIPs) and EPA’s final determination on specific state

FIPs.

Commenter: James A. Capp, Georgia Environmental Prote ction Division
Comment: EPA Must Give States a Fair Opportunity to do a SIP before it Imposes a FIP Under section 110(c)(1), FIPs may be proposed and promulgated only when a State has failed to do its job, either by not making a required SIP submission at all, or by making a required submission that EPA disapproves. In this situation EPA has simultaneously proposed a revision to 40 CFR 51.308(e)(4) and a SIP disapproval that is based on the not yet final revision to 40 CFR 51.308(e)(4). Therefore, it was im possible for states to submit a Regional Haze SIP based on the version of 40 CFR 51.308(e)(4) that EPA is using to make its disapproval determination because that version did not, and still does not, exist. EPA has failed to give states a fair opportunity to do a SIP before it took action to impose a FIP as required by the Clean Air Act. As such, EPA must withdraw this proposal and give states a fair opportunity to do a SIP.

EPA Response:Internal Review Draft 5/4/2012

Page 134 of 149 Please see section VI.C of the preamble for a discussion of EPA’s legal requirements with respect to Federal Implementation Plans (FIPs) and EPA’s final determination on specific state

FIPs

.



### XVI. Comments Specific to Certain States

**1. Florida**

Commenter: National Parks Conservation Association and Earthjustice
Comment: EPA’s proposed partial FIP for Florida violates the requirements of the Clean Air Act and the RHR for several reasons. As detailed in Earthjustice’s comment letter on the overarch ing legal and policy flaws of EPA’s proposed rule, the “better than BART” rule as applied to all 28 CSAPR states, including Florida, is inconsistent with the Clean Air Act. We incorporate that letter in full here. This letter specifically explains why EPA’ s proposed partial FIP for Florida cannot legitimately rely on CSAPR to exempt Florida EGUs from the RHR’s BART requirements. As explained in Earthjustice’s comments on the national rule as well as similar comments on other states, [FN 1] EPA cannot rely o n CSAPR because the D.C. Circuit has indefinitely stayed the rule. Furthermore, EPA has not complied with the Clean Air Act’s statutory requirements for a BART exemption, has failed to make a state

- by

- state demonstration that CSAPR is better than BART, and has included fatal methodological flaws in its proposed

determination. [FN 2] Additionally, EPA’s determination fails to account for the geographic and temporal uncertainties in emissions reductions under CSAPR

– uncertainties inherent in a cap

and

- trade program. Moreover, as discussed below, the application of CSAPR as a substitute for source specific BART is uniquely and particularly problematic in Florida, and four other states [FN 3 ] for which EPA proposes to exempt sources from BART NOx requirements, because NOx emissions are only covered by CSAPR during the ozone season

– less than half the year.

In addition, even if EPA eventually implements CSAPR, neither EPA nor Florida has demonstrated that CSAPR is better than BART as applied to Florida. To the contrary, the existing record demonstrates that CSAPR will (1) allow for greater NOx emissions than appropriate [FN 4 ] BART limits at Florida EGUs; (2) fail to require NOx emission reductions year round and (3) not achieve greater reasonable progress than would source specific BART at subject EGUs in the state of Florida. These shortcomings, taken together or individually are a result of arbitrary and capricious decision

- making which impede the Agency’s ability to finalize the proposed partial FIP for Flor ida

.

[FN 1] See Earthjustice Comments on the Proposed Approval of the Minnesota State Implementation Plan for Regional Haze, filed February 24, 2012; Earthjustice’s Comments on Proposed Partial Regional Haze FIP for Texas, filed February 28, 2012; and sim ilar comments on other affected states. [FN 2] The proposed “CSAPR is better than BART” determination suffers from additional legal infirmities both as a national rule and as applied to Florida for at least five important reasons. First, EPA has not accou nted for the differences in averaging time under BART (30

- day averaging times), CSAPR (five

- month averaging times), and in measuring visibility impacts (one

- hour averaging time) and therefore cannot properly compare or demonstrate

emissions reductions unde r CSAPR would be better than BART. Second, EPA's modeling assumed nitrate levels

that are often lower than real

- world conditions, which calls into question EPA's modeling. Third, in some instances, EPA relied on a single monitor to assess visibility condit ions in multiple Class I areas. Relying on a single monitor for multiple Class I areas is unlikely to accurately describe visibility across the Class I areas and therefore makesInternal Review Draft 5/4/2012

Page 135 of 149 EPA's conclusions about visibility impacts suspect. Fourth, EPA also uses a si mple arithmetic mean to conclude that visibility improvements will be greater than CSAPR than BART. EPA's methodology calls into question its conclusion given that relying on an arithmetic mean is likely to overstate progress by heavily waiting outlier res ults. Lastly, EPA's proposed better than BART determination relies on a 2014 base case that does not account for permanent emissions reductions at non

- BART eligible sources, which resulted in giving CSAPR credit for those emissions reductions and placing B ART at an arbitrary disadvantage in the comparison. See Comments on National Better than BART proposed rule, filed February 28, 2012. [FN 3] Oklahoma, Louisiana, Mississippi, and Arkansas. [FN 4] We have not performed source

- specific BART determinations for each source. Throughout this text, where we use the terms “appropriate” or “adequate” to describe BART limit, they indicate our best estimation of the likely

outcome of a BART determination

.

EPA Response: [placeholder]



### 2. Georgia

Commenter: Nation al Parks Conservation Association on behalf of a number of organizations

Comment: In this rule, EPA proposes a limited disapproval of Georgia’s State Implementation Plan (SIP) because it relied on the requirements of the Clean Air Interstate Rule (CAIR) t o reduce sulfur dioxide (SO2) and nitrogen oxide (NOx) emissions from electric generating units (EGUs). 76 Fed. Reg. at 82219, 82229. To address that deficiency, EPA proposes a partial FIP that will replace reliance on CAIR with reliance on the Cross

- State Air Pollution Rule (CSAPR) for the

emissions of SO2 and NOx. Id. at 82229

– 30, 82232 (proposed amendment to regulation). The effect of the proposed partial FIP is to exempt all Georgia EGUs from the Regional Haze Rule’s (RHR’s) requirements for case

- by

- cas e, source

- specific analyses and installation and operation of Best Available Retrofit Technology (BART) to reduce SO2 and NOx and achieve the RHR’s visibility mandates.

The partial FIP is premised on EPA’s proposed finding that CSAPR would be “better tha n BART” at making reasonable progress toward achieving the RHR’s goal of eliminating human

caused visibility impairment at Class I areas by 2064. Id. at 82221; see also 40 C.F.R. § 51.308(e)(3) (criteria for determining if an alternative measure is “better than BART”).

EPA’s proposed partial FIP for Georgia violates the requirements of the Clean Air Act and the RHR for several reasons. As detailed in Earthjustice’s comment letter on the overarching legal and policy flaws of EPA’s proposed rule, the “better than BART” rule as applied to all 28 CSAPR states, including Georgia, is inconsistent with the Clean Air Act. We incorporate that

letter in full here. This letter specifically explains why EPA’s proposed partial FIP for Georgia cannot legitimately rely on CSAPR to exempt Georgia EGUs from the RHR’s BART requirements. As explained in Earthjustice’s comments on the national rule as well as similar

comments on other s tates, [FN 1] EPA cannot rely on CSAPR because the D.C. Circuit has indefinitely stayed the rule. Furthermore, EPA has not complied with the Clean Air Act’s statutory requirements for a BART exemption, has failed to make a state

- by

- state demonstration

that CSAPR is bet ter than BART, and has included fatal methodological flaws in its proposed

determination. [FN 2] Additionally, EPA’s determination fails to account for the geographic andInternal Review Draft 5/4/2012

Page 136 of 149 temporal uncertainties in emissions reductions under CSAPR

– uncertainties inherent i n a cap

and

- trade program.

In addition, even if EPA eventually implements CSAPR, neither EPA nor Georgia has demonstrated that CSAPR is better than BART as applied to Georgia. To the contrary, the existing record demonstrates that CSAPR will (1) allow fo r greater SO2 and NOx emissions than appropriate [FN 3] BART limits at Georgia EGUs subject to BART and (2) not achieve greater reasonable progress than would source specific BART at subject EGUs in the state of Georgia. These shortcomings, taken together or individually are a result of arbitrary and capricious

decision

- making which impede the Agency’s ability to finalize the proposed partial FIP for Georgia.

[FN 1] See Earthjustice Comments on the Proposed Approval of the Minnesota State Implementation Pl an for Regional Haze, filed February 24, 2012; Earthjustice’s Comments on Proposed Partial Regional Haze FIP for Texas, filed February 28, 2012; and similar comments on other affected states. [FN 2] The proposed “CSAPR is better than BART” determination s uffers from additional legal infirmities both as a national rule and as applied to Georgia for at least five important reasons. First, EPA has not accounted for the differences in averaging time under BART (30

- day averaging times), CSAPR (five

- month averag ing times), and in measuring visibility impacts (one

- hour averaging time) and therefore cannot properly compare or demonstrate emissions reductions under CSAPR would be better than BART. Second, EPA's modeling assumed nitrate levels

that are often lower th an real

- world conditions, which calls into question EPA's modeling. Third, in some instances, EPA relied on a single monitor to assess visibility conditions in multiple Class I areas. Relying on a single monitor for multiple Class I areas is unlikely to ac curately describe visibility across the Class I areas and therefore makes EPA's conclusions about visibility impacts suspect. Fourth, EPA also uses a simple arithmetic mean to conclude that visibility improvements will be greater than CSAPR than BART. EPA' s methodology calls into question its conclusion given that relying on an arithmetic mean is likely to overstate progress by heavily waiting outlier results. Lastly, EPA's proposed better than BART determination relies on a 2014 base case that does not acc ount for permanent emissions reductions at non

- BART eligible sources, which resulted in giving CSAPR credit for those emissions reductions and placing BART at an arbitrary disadvantage in the comparison. See Comments on National Better than BART proposed r ule, filed February 28, 2012. [FN 3] We have not performed source

- specific BART determinations for each source. Throughout this text, where we use the terms “appropriate” or “adequate” to describe BART limit, they indicate our best estimation of the likel y outcome of a BART determination.

Commenter: National Parks Conservation Association on behalf of a number of organizations

Comment: Georgia’s submittal asserts that it will not meet the uniform rate of progress at two of its three Class I areas (Okefe nokee and Wolf Island, which share the same monitor).8 If a state will not meet the goal of restoring natural visibility conditions by 2064, the state must demonstrate to EPA that it considered regulating all sources of visibility impairment, 40 C.F.R. § 5 1.308 (d)(3)(iv)

- (v), and that despite application of BART and other controls, it is unreasonable to meet the deadline of clean air in parks and wilderness by 2064. Id. § 51.308(d)(ii) (“[I]f the State establishes a reasonable progress goal that provides f or a slower rate of improvement in visibility than the rate that would be needed to attain natural conditions by 2064 . . . the State must demonstrate . . . that the rate of progress for the implementation plan to attain natural conditions by 2064 is not r easonable.”).

Georgia admits that it will not achieve the uniform rate of progress and will not attain natural visibility by 2064. It is not enough to consider options that would provide greater reasonableInternal Review Draft 5/4/2012

Page 137 of 149 progress then the state's chosen reasonable prog ress goal; the state must consider the reductions that would be necessary to achieve the uniform rate of progress, and demonstrate why such reductions are unreasonable. In its proposed haze SIP, Georgia did not “demonstrate, based on the factors in paragra ph (d)(1)(i)(A) of this section, that the rate of progress for the implementation plan to attain natural conditions by 2064 is not reasonable.” Requiring BART would provide reasonable reductions that would help meet the uniform rate of progress, but this

o ption has not been evaluated.

Accordingly, Georgia's SIP submittal does not comply with all applicable regional haze requirements. Further, the absence of an evaluation of BART controls and limits as a means of meeting the uniform rate of progress

– rath er than lesser reasonable progress goals

– illustrates the reason why the required long

- term strategy and EPA’s proposed determination for an alternative to BART should be evaluated in the same arena, as discussed below, and not decoupled. [FN 9]

Thus, i n the absence of a demonstration that CSAPR will make greater reasonable progress than BART, CSAPR fails the regulatory test required for an alternative BART program to exempt sources from source specific BART limits.

[FN 9] See Earthjustice’s Comments on Proposed Partial Regional Haze FIP for Texas, filed February 28, 2012.

Commenter: James A. Capp, Georgia Environmental Protection Division
Comment: EPA’s proposed action regarding Georgia falsely states that Georgia relied upon CAIR to satisfy

the BART requirements for NOx and SO2 for all sources statewide. This is not true. In Georgia’s Regional Haze SIP, EPD relied on CAIR to satisfy the BART requirement only for the BART exemption modeling for BART

- Eligible EGUs and for the BART determination for Geo rgia Power’s Plant Bowen. Therefore, EPA proposes that the language of 52.580(a) be revised to reflect the specific instances in which Georgia relied on CAIR to satisfy the regional haze requirements as follows:

(a) The requirements of section 169A of th e Clean Air Act are not met because the plan does not include approvable measures for meeting the requirements of 40 CFR 51.308 (e) for BART eligible EGUs.

EPA Response: Please see the final regulatory text in the final rule for clarification.



### 3. **Indiana**

Commenter: Kristin A. Henry

Comment: Indiana’s Regional Haze Plan Does not Comply with MANE

- VU Region’s Request and Several Class I Areas in that Region Will Not Meet the Glidepath The visibility modeling results performed by the state of Indiana show that the rates of visibility improvement in several Class I areas impacted by Indiana are expected to be less than the glidepath (i.e. further improvement needed), in 2018. These includ e Lye Brook Wilderness Area,Internal Review Draft 5/4/2012

Page 138 of 149 Vermont, Isle Royale National Park and Seney National Wildlife Refuge Wilderness Area in Michigan, Boundary Waters Canoe Wilderness Area and Voyageurs National Park in Minnesota, and Acadia National Park, Maine. Indiana Regiona l Haze Rule at 28. A few of these Class I area

are in the MANE

- VU Region, which has requested that states, such as Indiana, whose emissions impact Class I Areas in the MANE

- VU region, take the following steps: • Application of BART. • 90 percent (or greate r) reduction in SO2 emissions from each of the

EGU stacks on MANE

- VU‘s list of 167 stacks (located in 19 states), which reflect those stacks determined to be reasonably anticipated to cause or contribute to visibility impairment in the

MANE

- VU Class I area s. • 28 percent reduction in non

- EGU (point, area, on

- road, and off

- road) SO2 emissions relative to

on

- the

- books, on

- the

- way 2018 projections. • Continued evaluation of other measures, including measures to reduce SO2 and NOx emissions

from coal

- burning fa cilities and promulgation of new source performance standards for wood

combustion. • Further reduction in power plant SO2 (and NOx) emissions beyond CAIR (Indiana Regional Haze SIP at 40.)

With regards to the 167 stacks determined to be reasonably antici pated to cause or contribute to visibility impairments in the MANE

- VU Class I Areas, 15 stacks are at 9 plants in Indiana. Indiana Haze SIP at 40. In response, Indiana DEM noted that a number of the stacks had already installed or were planning to install scrubbers because of CAIR, which Indiana DEM deemed to be sufficient progress towards MANE

- VU‘s request. Id. at 37. EPA’s proposed partial FIP for Indiana simply replaces CSAPR for CAIR and does not change the state’s analysis. See 76 Fed. Reg. at 82232. I ndiana DEM and EPA’s assumption that MANE

- VU Region’s concerns would be addressed is inadequate because it fails to mention that three of the plants identified by

MANE

- VU

– Tanners Creek, Frank E. Ratts, and Wabash River Generating Station

– do not

have sc rubbers and do not have binding requirements to install them. See Indiana Regional Haze SIP at Table 11, pg. 47, 50.11 Combined, those three plants emitted more than 75,240 tons of SO2 in 2010. No explanation is provided as to why those plants should not b e required to achieve 90% SO2 reductions in order to reduce visibility impacts.

EPA may respond that certain planned actions will address these emissions. Indiana acknowledges that Wabash intends to address its SO2 emissions through CAIR Allocation, that Tanners Creek will “[b]urn only coal with no more than 1.2% sulfur content annual average,” and that Frank E. Ratts must comply with “U.S. EPA settlement, plantwide from 2009 levels

42% reduction

- 2012, 58%

- 2014.” See Indiana Regional Haze SIP at Table 11, pg. 47, 50. Each of these is legally deficient to meet the requirements of the Haze Rule as the Tanners Creek obligation to burn low sulfur coal is not legally binding and will not reduce SO2 emissions by 90%, Wabash could buy allowances under the CSA PR trading program instead of installing control technology that would reduce emissions by 90%, and Frank E. Ratts settlement agreement does not require the installation of a scrubber that would reduce emissions by 90%.

EPA Response: [placeholder]Internal Review Draft 5/4/2012

Page 139 of 149 

### 4. **Tex as** 

Commenter: Earthjustice/Texas
Comment: EPA cannot issue a legally defensible partial regional haze FIP for Texas that relies on CSAPR to exempt all Texas power plants from the RHR’s BART requirements. A strong regional haze plan for Texas that compli es with the vi sibility protection regulations

- including

BART lim its at all EGUs subject to BART

- is critically important to improve visibility at Big Bend and Guadalupe Mountains National Parks, and other Class I areas in nearby states. Moreover, a stro ng regional haze plan will protect public health and benefit tourism and local economies by ensuring that people from around the world w ill continue to travel to Texas t o explore and enjoy the state’s majestic national parks and the region’s treasured land scapes.

Commenter: Mass Comment Campaign Sponsored by Texas Sierra Club (There were 258 individual commenters who submitted essentially the same comment as follows.)
Comment: I urge the EPA to strengthen its proposed rule for Texas and regional haze, Docket # EPA

- HQ

OAR

- 2011

- 0729. Under EPA's proposed rule, Texas would rely only on the Cross

- State Air Pollution Rule, which focuses on statewide pollution reductions, to reduce haze in national parks. The Cross State Air Pollution Rule was designed for a different purpose, and has not yet been put into effect due to litigation. Most importantly, under that rule, the old, dirty Texas plants that currently contribute to haze in beloved areas like Big Bend and the Guadalupe Mountains may

choose not to install pollution controls, instead opting to buy emission allowances from states as far away as Minnesota and South Carolina. To address haze, EPA should require Texas to consider each plant on a case

- by

- case basis and make sure our parks and health are protecte d. These distant emission reductions in other states, rather than Texas, may not protect Big Bend or Guadalupe Mountains as intended by the Rule. Moreover, the same air pollution from coal

- fired power plants that causes haze also harms public health, so th e proposed rule may not clean up the air that Texans breathe as the Regional Haze Rule would. Visitors to Big Bend and Guadalupe Mountains, and all Texans, deserve the full clean air benefits of the Regional Haze Rule.

Commenter: Mass Comment Campaign Spo nsored by National Parks Conservation Association (There were 835 individual commenters who submitted essentially the same comment as follows.)

Comment: I urge you to require Texas's oldest and dirtiest power plants to significantly clean up to clear the

h aze in Big Bend and Guadalupe Mountains National Parks. Please abandon your proposal to exempt these polluters from widely available, cost effective pollution controls. As a national park visitor and advocate for the parks, I value these national treasures . Unfortunately, EPA has proposed a Texas haze plan that will not protect the places that I care deeply about. The current haze plan relies on a trading program which could allow Texas polluters to buy emission credits from sources as far away as Minnesota and avoid installing pollution controls at their facility. To effectively address haze, EPA must require the specific Texas power plants damaging park air quality to reduce their emissions, not buy a pass to continue damaging the air in my region.

Reduced views and compromised air quality are problems that Congress sought to fix by setting aside these lands for special air quality protection. And we need to fix these problems. EPAInternal Review Draft 5/4/2012

Page 140 of 149 cannot let Texas power plants escape pollution controls; EPA must require an adequate Texas haze plan that would help clean up the air in our national parks, and throughout the region, for present and future generations.

Commenter: Mass Comment Campaign sponsored by CREDO Action (9,104 CREDO Action Members in Texas)

Comment:

I urge the EPA to strengthen its proposal for Texas regional haze, Docket #

EPA

‐ HQ

‐ OAR

‐ 2011

‐ 0729. As a Texan, I care about our iconic open spaces like Big Bend and the Guadalupe Mountains and want them protected from haze pollution, which both obscures the

s pectacular views and also makes the air unsafe to breathe. Please strengthen your proposal and do more to hold Texas' major polluters accountable and improve air quality in Texas.

EPA Response: [placeholder]

Commenter: Mark R. Vickery, Texas Commission o n Environmental Quality

Comment:
In the initial review of the Technical Support Document (TSD) for Demonstration of the Transport Rule as a BART Alternative , the conclusion that CSAPR is better than BART appears reasonable based on the overall analysis pre sented. In general, the TCEQ technical staff found the conclusion that CSAPR is better than BART appears to be reasonable; however, due to the large number of the supporting documents, more time was needed for a thorough review. One instance of potential c onfusion appears on page 52 of the TSD where the EPA evaluated fewer sources than Texas evaluated for BART. The TCEQ is not sure why the lists are different, but might conjecture that the state has better information, or made a wider evaluation of sources,

than the EPA.

EPA Response: EPA acknowledges TCEQ’s conclusion that CSAPR is better than BART is reasonable. With respect to the specific BART sources that EPA evaluated, we have reviewed the Texas SIP to ensure consistency with the sources that Texas ha s evaluated as BART

- eligible. We compared

our list of Texas BART

- eligible units (page 52 of the TSD) with Appendix 9

- 13 (BART

- Eligible List) of the Texas SIP ( http://m.tceq.texas.gov/assets/public/implementation/air/sip/haze/Appendix9_13.pdf , accessed April 24, 2012). From this list we identified the company name and “account number” for each EGU that was identified as being subject to CAIR. This list was then c ross

- referenced with information contained in the “BART Modeling Parameters” file to obtain more information

about each EGU ( http://www.tceq.texas. gov/assets/public/implementation/air/sip/bart/BARTModelingParameters. zip , accessed April 25, 2012). The data listing the modeling parameters was filtered by Standard Classification Code to select only EGUs firing any type of coal. This filter significantly reduced

the number of EGUs considered BART

- eligible. Finally, the ORIS identification number for

each coal

- fired Texas facility was matched to the ORIS numbers for the units we modeled for Texas. We found only one discrepancy and that was that we modeled WA Parish Unit 7 and

Texas did not list this unit as BART

- eligible in the modeling file. In conclusion, it is apparentInternal Review Draft 5/4/2012

Page 141 of 149 that the more extensive list of BART

- eligible EGUs maintained by TCEQ includes EGUs that

are fired with fuel other than coal. In the “bet ter

- than

- BART” analysis EPA only modeled coal

fired BART

- eligible units (because there are no presumptive limits for fuels other than coal) and the Transport Rule applies primarily to such units.

Commenter: Mark R. Vickery, Texas Commission on Environment al Quality

Comment: The proposed rule should identify if and how state air quality planning obligations are impacted

as a result of the states’ inclusion in CSAPR if the basis for the state’s inclusion in CSAPR is

different than the basis for the states’ i nclusion in CAIR. Texas was previously included only in

the CAIR annual SO 2 and nitrogen dioxide (NO X ) trading program (for significant contribution to nonattainment from fine particulate matter, or PM 2.5 ), but was included in the CSAPR for annual

NO X , ozone

- season NO X , and the SO 2 Group 2 trading programs (for significant contribution to nonattainment or interference with maintenance for the 1997 eight

- hour ozone National Ambient Air Quality Standard (NAAQS)) and the 1997 annual PM 2.5 NAAQS. It is uncle ar how this change was addressed in EPA’s analysis for the proposed rule. One of the documents in the rulemaking docket

– entitled States with a Change in Status from CAIR to Initial CSAPR, or from CAIR to CSAPR and Supplemental Proposal for Six States doe s not identify Texas as one of the states that was treated differently between CAIR and CSAPR, so it is unclear how this change affects state air quality planning obligations under the Regional Haze Rule. The EPA

should re

- propose the elements of the curre nt proposal to allow states the opportunity to comment on these proposed impacts to their SIPs.

EPA Response: The preamble to the proposed rule explained how state obligations under the Regional Haze Rule are impacted by our proposed, now final, determination that reliance on the Transport Rule is an alternative to BART. As stated in the preamble (76 FR 82223), our final determination:

“... applies only to EGUs in the states in the Transport Rule region and only to the pollutants subject to the req uirements of the Transport Rule (i.e., SO2 and/or NOx). BART for emissions of other visibility impairing pollutants (e.g., primary PM 2.5 , NH 3 , or VOC) must still be evaluated according to the Regional Haze Rule guidelines. Non

- EGU sources also remain subje ct to the requirements of the Regional Haze Rule.” In addition to the BART requirements for other visibility impairing pollutants and the requirement to address non

- EGU BART, we explained in the preamble that our proposed action did not alter or replace an y states’ reasonable progress targets for 2018 but we will assess the

mid

- course review of each state’s SIP to ensure each state’s current implementation strategies will be sufficient to meet these goals. See 76 FR 82229. We also explained that we intend t o act on the reasonable progress goals and long

- term strategy and other requirements of the Regional Haze Rule (BART determinations for non

- EGU sources, monitoring, consultation with federal land managers, etc) for each state in a separate notice. See 76 F R 82229. This remains our intention. Lastly, with respect to the Federal Implementation Plan that substitutes reliance on the Transport Rule for reliance on CAIR, we made clear that states are encouraged at any time to submit a SIP revision to incorporate the requirements of the Transport Rule at which time we will withdraw our FIP. However, a state may also choose to remain subject to the FIP and notInternal Review Draft 5/4/2012

Page 142 of 149 submit a SIP revision (until the second implementation period in 2018). As we stated in the preamble:

“Our finding that the Transport Rule makes greater reasonable progress than BART for EGUs in these states will hold true regardless of whether a state chooses to submit a SIP revision under subpart 52.38 and 52.39 or remain subject to a FIP.” See 76 FR 82221.”



### 5. **Florida**

Commenter: Susan Schumann, Florida Electric Power Coordinating Group, Inc. (FCG)

Comment: Procedurally, we recognize that action on Regional Haze implementation plans is long overdue. The Clean Air Act ("CAA") required EPA to promulgate a FIP for Florida by January 2011, unless Florida's Regional Haze SIP (which has been pending with EPA in final form since August 2010) was approved first. EPA has yet to act and, in fact, recently proposed a consent decree in response to litigation on this issue setting deadlines for proposed and final action (May

15th and November 15 th , respectively, for Florida). In addition, EPA's failure to act violates a separate statutory deadline that requires EPA to approve or disapprove of Florida's SIP

submission within 18 months, i.e., by the end of February 2012. See CAA § 110 (k). Further delay in acting on Florida's Regional Haze SIP is unjustifiable. EPA should proceed expeditiously to approve Florida's SIP in its entirety, which the Florida Department of

Envi ronmental Protection believed to be fully approvable as finalized in August 2010. This

would include CAIR

- based provisions for both the BART and long

- term strategy requirements of Regional Haze. If the Court upholds CSAPR, EPA could issue a "SIP Call" at t hat time pursuant to CAA § 110(k)(5) to prepare for CSAPR's implementation. If CSAPR is upheld by June 2012, for example, the FCG

- EC reiterates its suggestion in its January 3rd comments (on proposed consent decree deadlines) that a November 2012 proposed rule and June 2013 final rule

schedule would be reasonable. Such a schedule is well within the maximum 18

- month timeframe for revisions in response to a SIP Call. See CAA §110(k)(5). This schedule also only adds 6 to 7 months to EPA's proposed consent decr ee final action deadline, a modest extension to a time line EPA already deemed acceptable. Finally, approving currently valid CAIR

- based SIP provisions and issuing a SIP Call when and if necessary would be in keeping with the CAA's cooperative

federalism d esign.

EPA Response: The EPA is deferring action on the proposed FIP for Florida for the reasons discussed in section V.C. of the preamble to the final rule.



### 6. **Ohio**

Commenter: Cheri Budzynski on behalf of the Ohio Utility Group

Comment: U.S EPA must approve Ohio's revised SIP because it is consistent with the federal rules. Ohio EPA submitted its SIP revisions in December 2008 and supplemented revisions in March 2011. Because CAIR will remain in effect, the EGUs in Ohio continue to reduce emissions underInternal Review Draft 5/4/2012

Page 143 of 149 CAIR. Thus, the EGUs are reducing emissions at a greater reasonable progress than if they were

to install BART. This BART

- alterative is permitted under the regulations. U.S. EPA also asserts that it must propose a FIP in accordance with Se ction 110(Q of the dean Air Act. This section states that U.S.EPA must promulgate a FIP within 2 years after the Administrator fully or partially disapproves a SIP "unless the State corrects the deficiency, and the Administrator approves the plan or plan r evision, before the Administrator promulgates such [FIP]." U.S. EPA is proposing a FIP because Ohio's SIP relies on CAIR to satisfy BART. 76 Fed. Reg. 82229. The

Utilities do not see the need for U.S. EPA to issue this FIP at this time because any supposed deficiency in Ohio's SIP based on CAIR emission reductions have been remedied by the court's order that requires CAIR to remain in effect pending appeal of the Transport Rule. EGUs will continue to operate and reduce emissions under CAIR until U.S. EPA fi nalizes other intrastate transport rules such as the Transport Rule. At that time, Ohio can revise its SIP and sup plant

CAIR with these new rules

.

EPA Response: [placeholder]



### XVII

**. Regulatory Language Addressing Reasonable Progress Goals and**  **the Long**

**- Term**  **Strategy**

Commenter: James A. Capp, Georgia Environmental Protection Division

Comment: Proposed Language in §52.580(a) Should not Include §51.308(d)(3) EPA has included the following in the proposed regulatory language for §52.580(a): "The requirements of section 169A of the Clean Air Act are not met because the plan does not include approvable measures for meeting the requirements of 40 CFR 51.308(d)(3) (emphasis in

original) ..." §51.308(d)(3) specifically includes EPA ‟ s expectations for the long

- term strategy necessary to achieve the reasonable progress goals.

However, in the preamble to the proposed rule, EPA makes it clear that the proposed rule is no t intended to have anything to do with the reasonable progress targets that are part of the long

- term strategies for states, or the long

- term strategy in general. The Preamble has no other mention of the reasonable progress targets and/or the long

- term str ategies for states that would support the inclusion of §51.308(d)(3) in §52.580(a). So, there is no basis for inclusion of §51.308(d)(3) in the proposed language for §52.580(a). EPA specifically said that the long

- term strategy (including the Transport Rul e) would be addressed in a separate rulemaking for each state and would not be included in this action. Therefore, the reference to §51.308(d)(3) must be removed from §52.580(a).

Commenter: Susan Schumann, Florida Electric Power Coordinating Group, Inc. ( FCG)
Comment: In the proposed rule's preamble, EPA states it intends to act on long

- term strategy and additional Regional Haze requirements other than BART in a separate notice. See 76 Fed. Reg. 82229 ("We intend to act on the reasonable progress goals and long

- term strategy ... and other requirements of the [Regional Haze Rule] ... in an individual notice separately from the final ruleInternal Review Draft 5/4/2012

Page 144 of 149 for this action."). But, contrary to that statement, EPA is proposing an amendment to 40 CFR §

52.534 that states Florida' s SIP does not include approvable measures to satisfy 40 CFR § 51.308( d)(3), its "long

- term strategy for regional haze." As already noted, the FCG

- EC believes Florida's SIP should be approved in full. However, to the extent EPA continues to pursue its

pro posal, EPA should revise its proposed amendments to 40 CFR § 52.534 so it is consistent with EPA's preamble statements and address the sufficiency of long

- term strategy SIP provisions in a subsequent rulemaking.

EPA Response: Please see the final regulato ry text in the final rule for clarification.



### XVIII. Comments Unrelated to the Proposed Action

Commenter: Paul Bailey, American Coalition for Clean Coal Electricity (ACCCE)
Comment: EPA should determine whether the emission reductions expected from MATS will achieve “better than BART” visibility improvement. EPA projects that the MATS regulation will result in a 41 percent reduction in SO2 emissions from the EGU sector beyond CSAPR by 2015. See Regulatory Impact Analysis for the Final Mercury and Air Toxics Standards (Dec. 2011), p. 3

- 10. As a result of these reductions, and of smaller reductions in primary PM2.5 emissions, EPA includes improvement in visibility conditions as a co

- bene fit of the rule. Id. at 5

- 6. EPA modeling shows a median visibility improvement of 0.09 deciview in annual 20% worst visibility days over all Class I area monitor locations, with improvement up to 0.97 deciviews.

Id. at 5b

- 6. For the same reason that EPA d ecided to model whether CAIR and CSAPR emission reductions from the EGU sector would achieve “better than BART” visibility improvement, EPA should do the same for its new MATS regulation. While ACCCE does not support the MATS rule, given the dramatic reduc tions in SO2 emissions expected from it, there is every reason to expect that the visibility improvement will be “better than BART” and that the time

- consuming

source

- by

- source BART process can be avoided not just in CAIR/CSAPR states but in other

states a s well.

EPA Response: EPA agrees that the Mercury Air Toxics (MATS) rule will result in significant reductions in hydrochloric acid emissions and that substantial SO 2 emission reductions will be a co

- benefit of

these controls. Enforceable SO 2 emission lim its adopted to comply with MATS will be taken

into consideration in source

- specific BART determinations in accordance with the Regional Haze Rule Guidelines (See Appendix Y to Part 51

– Guidelines for BART Determinations Under the Regional Haze Rule, secti on IV.C.)

Commenter: Louis P. Pocalujka, Consumers Energy
Comment: Consumers Energy recommends that EPA work with the states and the electric utility industry to consider other regulatory alternatives to enable a smooth transition between CAIR=BART regul atory provisions and any follow

- on transport rule that incorporates a similar determination. In all cases, EPA should ensure that states within the CAIR and CSAPR regions are able to rely on these transport programs or any successor program to address BART obligations.Internal Review Draft 5/4/2012

Page 145 of 149 EPA Response: EPA may or may not consider future transport programs or other regulations as alternatives to

source

- specific BART. Regardless, any program that EPA may consider as a BART alternative would be subject to rigorous analysis and public notice and comment prior to adoption by the

EPA as an alternative to BART.

Commenter: Cathy S. Woollums, MidAmerican Energy Holdings Company

Comment: In the Transport Rule proposal, EPA analyzed whether the Transport Rule is better than BART by com paring two scenarios

– “Nationwide BART” and “BART + Transport Rule.” For the

“ Nationwide BART” comparison, EPA assumed the installation of BART controls that were

m

odeled as presumptive EGU BART limits, for the SO2 and NOx emission rates. For the BART

+ T ransport Rule,” EPA substituted the presumptive BART rates applied in “Nationwide BART”

w ith the emission reductions associated with the implem entation of the Transport Rule. EPA

t hen concluded that more SO2 and NOX emission reductions will be achieved und er the Transport Rule + BART

- elsewhere” scenario than under the “Nationwide BART” scenario.

B ased on this conclusion, EPA determined that the implementation of the Transport Rule is

better

- than BART because greater reasonable progress is made under the alt ernative of the

T ransport Rule. If EPA adopts this position, EPA must also conclude that it is improper to

i mpose source

- specific BART limits in non

- Transport Rule states that are more stringent than Transport Rule requirements. EPA’s final rule determinin g that the “Transport Rule is better than BART,” using presumptive BART limits as the basis for its conclusion, means that presumptive BART limits should be imposed on BART

- eligible facilities in states outside the Transport Rule.

EPA Response: EPA disag rees with any suggestion that this rulemaking means that presumptive limits should be imposed on a BART

- eligible facility located outside of the Transport Rule region. As noted in our response to numerous other comments

.



### XIX

**. Comments Pertaining to the Tra**  **nsport Rule (Cross**

**- State Air**  **Pollution Rule CSAPR))**

Commenter: Stephen Cain, Arkansas Electric Cooperative Corporation (AECC)

Comment: AECC believes that states that are not subject to a given CSAPR allowance trading program should have the option of opt ing into that program to comply with the Regional Haze Rule. AECC believes that this option would allow flexibility in compliance for the Regional Haze Rule while still maintaining a state’s reasonable progress goals toward improved visibility in Class I

a reas. Also, with more stakeholders in a trading program, the program will be more robust.

Commenter: Mark R. Vickery, Texas Commission on Environmental Quality

Comment: The basic information EPA used in the Integrated Planning Model (IPM) modeling run s was not thoroughly evaluated by the states and should not be used for regulatory decisions. Due to its propriety nature, IPM lacks transparency and makes it difficult for states to evaluate the modeledInternal Review Draft 5/4/2012

Page 14 6 of 149 emission projections. The TCEQ has thus been denied adequate opportunity to comment on the accuracy and appropriateness of IPM. Although the EPA indicates that it has addressed the concerns raised by the TCEQ earlier under CSAPR, the TCEQ still has concerns about the results and methodology used in IPM to p redict emissions. The use of potentially inaccurate IPM results to support Clean Air Model with Extensions (CAMx ) modeling to determine CSAPR

r equirements cal ls into question whether CSAPR modeling results are valid.

Commenter: Mark R. Vickery, Texas Comm ission on Environmental Quality

Comment: While the Texas Commission on Environmental Quality (TCEQ) appreciates the EPA’s efforts in working with companies to correct errors the EPA made regarding affected coal

- fired EGUs in Texas with sulfur dioxide (SO 2 ) flue gas desulfurization (FGD) scrubbers, the proposed rule will require substantial reductions in SO 2 emissions in an unprecedented short period of time. Even accounting for the SO 2 FGD scrubbers that have recently come on

- line, the TCEQ estimates that

S O 2 reductions would still be required from Texas EGUs in 2012 to meet CSAPR emission budgets, if the rule is upheld by the D.C. Circuit. The proposed rule’s finding that CSAPR is better than BART essentially reinforces the requirement to comply with CSAPR, which will have substantial impacts on Texas sources in addition to other repercussions for electrical power grid reliability and other negative impacts elaborated by Texas in filings associated with the CSAPR. The TCEQ has significant concerns that forci ng Texas EGUs to make such significant

SO 2 reductions in the unprecedented short compliance schedule mandated by the EPA will leave

some Texas coal

- fired EGUs with limited options for compliance and may endanger Texas electrical power grid reliability.

Co mmenter: Luminant
Comment: For a host of reasons, CSAPR is illegal and should ultimately be vacated by the D.C. Circuit. Luminant has set out the reasons that CSAPR is illegal in its request for reconsideration submitted to EPA on August 5, 2011 (later sup plemented on September 9 and 29, 2011) and also in its filings with the Court. See Attachments 2, 3, 4, and 5. Luminant also submitted comments (Attachment 6) on EPA’s proposed rule to make adjustments to State emissions budgets based on

errors in EPA’s mo deling. See 76 Fed. Reg. 63,860 (Oct. 14, 2011). All of these CSAPR submissions and filings by Luminant are incorporated herein by reference.

EPA Response: These comments pertaining to CSAPR are not relevant to this rulemaking.



### XX

**. Comments Pertaining to**  **the Proposed Consent Decree**

Commenter: Michael Olive, Progress Energy
Comment: On December 2, 2011 , EPA proposed a consent decree in response to litigation on this issue, setting a range of 2011 deadlines for proposed and final action on regional haze SIP s. As a result

of the subsequent stay of CSAPR on December 30, however, the proposed consent decree

deadlines are inconsistent with the timetable needed for considered action on the CSAPR=BART proposal. Therefore, EPA either should decide not to consent to this decree as drafted or else, at aInternal Review Draft 5/4/2012

Page 147 of 149 minimum, provide a further opportunity for public review and comment on the proposed decree to allow for more careful consideration of these issues in view of important developments that

had not occurred at the time EP A opened the proposed decree for comment.

Commenter: Louis P. Pocalujka, Consumers Energy
Comment: Consumers Energy notes that EPA has requested comments on a proposed consent decree that would establish deadlines for EPA to propose and fully promulgate r egional haze FIPs or approve regional haze SIPs for over 40 states. Among other things, it seems likely that the highly compressed and accelerated deadlines for EPA rulemaking under the proposed decree would force decisions well before the CSAPR stay and l itigation can be resolved. Under that proposal, EPA would be required to issue proposed actions on a regional haze SIP or FIP for each state subject to CAIR or CSAPR, or both, even before the comment period will have closed on the proposed CSAPR=BART rule on February 28, 2012. Other deadlines contained in the consent decree also are unrealistic given the existence of the CSAPR stay and the uncertainties as to when the D.C. Circuit Court of Appeals will render any final decision on the CSAPR litigation,

and what that final decision will be. The proposed consent decrees deadlines would force

decision

- making by EPA during a highly uncertain period. Therefore, Consumers Energy recommends that EPA should not finalize the proposed consent decree.

Commenter: John D. Kinsman, Edison Electric Institute (EEI)
Comment: EEI finally notes that EPA has requested comments on a proposed consent decree (76 Fed. Reg. 75544, Dec. 2, 2011) that would establish deadlines for EPA to propose and fully promulgate regional haze FIPs or approve regional haze SIPs for over 40 states. Among other things, it seems likely that the highly compressed and accelerated deadlines for EPA rulemaking under the proposed decree would force decisions well before the CSAPR stay and litigation can be resolved. Oral argument on petitions challenging CSPAR in the D.C. Circuit Court of Appeals has been ordered for April 13, 2012 and any decision on this complex litigation will likely take a considerable amount of the court’s time. EPA, however, would be r equired under the proposed consent decree to issue proposed actions on a regional haze SIP or FIP for each of 16 states ( i.e.

, those with respect to which the consent decree would impose a February 15, 2012 deadline for proposed EPA actions), including 11 states that are subject to CAIR or CSAPR, or both, even before the comment period will have closed on the proposed CSAPR=BART rule on February 28, 2012.. Moreover, the proposed consent decree would require final action by EPA on the regional haze SIP or FI P for two other states (Tennessee and West Virginia) that are subject to CAIR and CSAPR by March 15, 2012, only 16 days after the close of the comment period on the proposed CSAPR=BART rule and nearly a month prior to the date of oral argument in the

CSAPR litigation. Other deadlines contained in the consent decree also are unrealistic given the existence of the CSAPR stay, uncertainty as to when the D.C. Circuit Court of Appeals will render any final decision on the CSAPR litigation, and whether the court will vacate or require further agency action with respect to CSAPR if it remands the program to EPA. On their face, therefore, the proposed consent decrees deadlines would force decision

- making by EPA during a highly uncertain period that is contrary to th e situation that existed at the time EPA proposed the consent decree. EPA therefore should seek an alternative course of action to the proposed

consent decree.Internal Review Draft 5/4/2012

Page 148 of 149 Commenter: Paul Bailey, American Coalition for Clean Coal Electricity (ACCCE)

Comment:
ACCCE i s aware that not taking final action on RH SIPs may not be consistent with the proposed consent decree in certain states. ACCCE recommends that EPA not enter into the consent decree for this reason, at least as to those states affected by the CSAPR/CAIR/BA RT proposal. EPA’s policy of harmonizing CAIR and CSAPR with the regional haze program should not be driven by artificial consent decree deadlines when EPA knows that a court decision may be made by mid

- year that will clarify the proper policy that EPA sho uld implement.

Commenter: Mark R. Vickery, Texas Commission on Environmental Quality

Comment: The EPA should negotiate an extension of the consent decree deadlines, due to the uncertainty resulting from the CSAPR stay. The EPA is proposing to settle claim s brought by several non

governmental organizations against the EPA for failure to act on states’ Regional Haze SIPs in

National Parks Conservation Association et al. v. Jackson , No. 1:11

- sv

- 1548 (D.D.C.). The proposed consent decree containing deadlines f or EPA action for certain states, including Texas, was published for comment in the December 2, 2011, Federal Register (EPA Docket ID No.

EPA

- HQ

- OGC

- 2011

- 0929). The EPA should negotiate an extension of the consent decree deadlines (including that for Texas of a final action by November 15, 2012) due to the uncertainty resulting from the CSAPR stay. The proposed rule is insupportable, given that the court has issued a stay of the CSAPR and reinstitution of CAIR. Because the proposed rule relies on CSAPR, it is insupportable if the D.C. Circuit Court of Appeals agrees with the Petitioners, and vacates or remands the CSAPR. In addition, the EPA should consult with subject states before agreeing to any revised deadlines in order to provide adequate time for thes e states to comply with Regional Haze Rule requirements.

EPA Response: [placeholder]



### XXI

**. Regional Haze Rule Five** 

**- Year Progress Reports** 

Commenter: Mark R. Vickery, Texas Commission on Environmental Quality
Comment: Texas requests the EPA extend the deadline for five

- year progress reports under the Regional Haze Rule (40 CFR § 51.308(g)). Texas’ five

- year progress report deadline is approximately two years from now. Given the possibility that the current legal challen ges to CSAPR in the D.C. Circuit may result in required changes to the Transport Rule, and thus may change the EPA’s analysis that CSAPR is better than BART, states must have additional time to determine how this

alters the content of the five

- year progres s report. Consistent with Texas’ request that the consent decree deadlines for the EPA action on the Regional Haze SIPs be extended, Texas requests the

deadline for the five

- year progress report also reflect a comparable extension.

EPA Response:Internal Review Draft 5/4/2012

Page 149 of 149 EPA’s Reg ional Offices will be working directly with states on the required content of the five

year progress reports. The obligation to submit the five

- year progress report is not changed by requirements in either the proposed or final rule.

.