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[Federal Register Volume 77, Number 128 (Tuesday, July 3, 2012)]
[Rules and Regulations]
[Pages 39425-39435]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-15729]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2008-0510; FRL-9692-3]

Approval and Promulgation of Implementation Plans; Louisiana; 
Regional Haze State Implementation Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is finalizing a partial limited approval and a partial 
disapproval of a revision to the Louisiana State Implementation Plan 
(SIP) submitted by the State of Louisiana through the Louisiana 
Department of Environmental Quality (LDEQ), on June 13, 2008, that 
addresses regional haze (RH) for the first implementation period. This 
revision was submitted to address the requirements of the Clean Air Act 
(CAA) and the EPA's rules that require states to prevent any future and 
remedy any existing anthropogenic impairment of visibility in mandatory 
Class I areas (national parks and wilderness areas) caused by emissions 
of air pollutants from numerous sources located over a wide geographic 
area (also referred to as the ``regional haze program''). States are 
required to assure reasonable progress toward the national goal of 
achieving natural visibility conditions in Class I areas. In a separate 
action, the EPA has finalized a limited disapproval of the Louisiana RH 
SIP, along with several other states' regional haze plans, because of 
deficiencies in the state's regional haze SIP submittal arising from 
the remand by the U.S. Court of Appeals for the District of Columbia 
(D.C. Circuit) to the EPA of the Clean Air Interstate Rule (CAIR). In 
this action, the EPA is finalizing a partial disapproval because of 
deficiencies in Louisiana's RH SIP submittal that go beyond the issues 
addressed in the EPA's limited disapproval in that separate action. The 
EPA is also finalizing a partial limited approval of those elements of 
this SIP revision not addressed by our partial disapproval. The partial 
limited approval of the RH requirements for Louisiana is based on the 
conclusion that the revisions, as a whole, strengthen the Louisiana 
SIP. This action is being taken under section 110 and part C of the 
CAA.

DATES: This rule is effective August 6, 2012.

ADDRESSES: The EPA has established a docket for this action under 
Docket Identification No. EPA-R06-OAR-2008-0510. All documents in the 
docket are listed on the www.regulations.gov Web site. Although listed 
in the index, some information is not publicly available, i.e., 
Confidential Business Information or other information whose disclosure 
is restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically through www.regulations.gov or in hard 
copy at the Air Planning Section (6PD-L), Environmental Protection 
Agency, Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-
2733. The EPA requests that if at all possible, you contact the person 
listed in the FOR FURTHER INFORMATION CONTACT section for further 
information. The Regional Office's official hours of business are 
Monday through Friday, 8:30 to 4:30, excluding federal holidays.

FOR FURTHER INFORMATION CONTACT: Ms. Ellen Belk, Air Planning Section 
(6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, 
Suite 700, Dallas, Texas 75202-2733, telephone 214-665-2164; fax number 
214-665-6762; email address belk.ellen@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,'' 
and ``our'' means the EPA.

Table of Contents

    I. Background
    II. Final Action
    III. Comments Received and Our Responses
    IV. Statutory and Executive Order Reviews

I. Background

    The EPA is taking action on a revision to Louisiana's SIP submitted 
on June 13, 2008, that addressed progress toward reducing regional haze 
for the first implementation period ending in 2018. This revision was 
submitted to address the requirements of the CAA and the EPA's rules to 
assure reasonable progress toward the national goal of achieving 
natural visibility conditions in mandatory Class I areas. As identified 
by Congress, there is one mandatory Class I area within the State of 
Louisiana, Breton National Wilderness Area.\1\ The initial submittal 
from Louisiana was supplemented by a May 30, 2012, letter communicating 
that the State finalized its Smoke Management Plan (SMP). On February 
28, 2012, the EPA published a proposed partial limited approval and 
partial disapproval of Louisiana's SIP revision to address RH. See 77 
FR 11839.\2\
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    \1\ It is recognized that at the Breton National Wilderness Area 
(Breton or Breton NWA), some acres have at times been submerged. 
However, as a Class I area, Congress has declared as a national goal 
``the prevention of any future, and the remedying, of any existing, 
impairment of visibility'' at the Breton NWA. 42 U.S.C. 7491. Breton 
was designated by Congress as a national wilderness area on June 3, 
1975, under the Wilderness Act. Public Law 93-632 1(f); see also 16 
U.S.C. 1132. In the August 7, 1977, Clean Air Act Amendment, 
national wilderness areas that exceeded 5,000 acres in size and were 
in existence at that time (August 7, 1977), were designated as 
mandatory Class I areas that may not be redesignated. 42 U.S.C. 
7472(a). In accordance with section 169A of the CAA, the EPA, in 
consultation with the Department of Interior, promulgated a list of 
156 areas where visibility is identified as an important value. See, 
44 FR 69122, November 30, 1979. As required, the EPA lists Breton as 
a mandatory Class I federal area at 40 CFR 81.412.
    \2\ For additional details on the EPA's analysis and findings, 
the reader is referred to the proposal published in the February 28, 
2012 Federal Register (77 FR 11839), and a more detailed discussion 
as contained in the Technical Support Document which is available on 
line at http://www.regulations.gov, Docket number EPA-R06-OAR-2008-
0510.
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    In that action, the EPA proposed a partial limited approval of 
Louisiana's June 13, 2008, SIP revision addressing RH under CAA 
sections 301(a) and 110(k)(3) because certain provisions of the 
revision strengthen the Louisiana (LA) SIP. The EPA also proposed a 
partial disapproval of the LA RH SIP submittal because the submittal 
includes several deficient provisions. The deficiencies identified in 
the proposal go beyond those identified in the limited disapproval 
proposed on December 30, 2011 (76 FR 82219) which addressed 
deficiencies in several states' regional haze plans caused by the 
remand of the CAIR. The EPA proposed that certain elements of the 
State's Best Available Retrofit Technology (BART)

[[Page 39426]]

evaluations and determinations are not fully adequate to meet the 
federal requirements. Additionally, as a result of the deficiencies 
related to BART, the EPA proposed that the Long-Term Strategy (LTS) is 
not fully adequate to meet federal requirements. Finally, because 
visibility impacts from smoke are significant in Louisiana, we proposed 
that Louisiana should finalize its SMP. The EPA proposed a limited 
approval for portions of the revision because those portions represent 
an improvement over the current SIP, and make considerable progress in 
fulfilling the applicable CAA RH program requirements.
    The EPA received comments on the Agency's February 28, 2012 
proposed action. See section III of this rulemaking for a summary of 
comments received and the EPA's responses to these comments. Also, the 
EPA received a final SMP from Louisiana on May 30, 2012.
    Following the remand of CAIR, the EPA issued a new rule in 2011 to 
address the interstate transport of nitrogen oxides (NOX) 
and sulfur dioxide (SO2) in the eastern United States. See 
76 FR 48208, August 8, 2011 (``the Transport Rule,'' also known as the 
Cross-State Air Pollution Rule (CSAPR)). On December 30, 2011, the EPA 
proposed to find that the trading programs in the Transport Rule would 
achieve greater reasonable progress towards the national visibility 
goal than would source-specific BART in the states in which the 
Transport Rule applies. See 76 FR 82219. The EPA finalized that rule on 
May 30, 2012 (77 FR 33642). Based on this finding, the EPA also revised 
the RH Rule (RHR) to allow states to substitute participation in the 
trading programs under the Transport Rule for source-specific BART.
    Also on December 30, 2011, the U.S. Court of Appeals for the DC 
Circuit stayed the Transport Rule (including the provisions that would 
have sunset CAIR and the CAIR Federal Implementation Plans (FIPs)) and 
instructed the EPA to continue to administer CAIR pending the outcome 
of the court's decision on the petitions for review challenging the 
Transport Rule. EME Homer City v. EPA, No. 11-1302 (Order).

II. Final Action

    In this action, the EPA is finalizing a partial limited approval 
and a partial disapproval of Louisiana's June 13, 2008 RH SIP revision. 
With one difference, we are finalizing our action as proposed. As 
discussed below, we are slightly adjusting our action on the LA RH SIP 
with respect to the LDEQ's BART determination for the Rhodia Sulfuric 
Acid Plant (Rhodia). We proposed to find the BART evaluation for Rhodia 
is deficient because the LDEQ's RH submittal does not analyze controls 
for the subject-to-BART unit using the factors required by 40 CFR 
51.308(e). Having considered the public comments, we find that Rhodia's 
subject-to-BART unit meets the RH requirements specified in 40 CFR 
51.308(e)(1)(ii)(A) for an adequate BART evaluation; however the Rhodia 
BART determination still fails to meet the requirement in 40 CFR 
51.308(e) to include the emissions limits in the SIP. See our response 
to comment 6 in section III for further discussion of our findings for 
Rhodia. Also, this action acknowledges that Louisiana has satisfied the 
requirement to consider smoke management techniques, including plans, 
because Louisiana has finalized its SMP (see the docket for this 
action, Docket No. EPA-R06-OAR-2008-0510, for Louisiana's SMP).
    The EPA is finalizing a partial limited approval of Louisiana's RH 
SIP revision. This partial limited approval results in approval of all 
of the remaining elements of Louisiana's RH SIP.\3\ The EPA is taking 
this approach because Louisiana's SIP will be stronger and more 
protective of the environment with the implementation of those measures 
by the state and having federal approval and enforceability than it 
would without those measures being included in Louisiana's SIP.
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    \3\ Processing of State Implementation Plan (SIP) Revisions, EPA 
Memorandum from John Calcagni, Director, Air Quality Management 
Division, OAQPS, to Air Division Directors, EPA Regional Offices I-X 
(1992 Calcagni Memorandum) located at http://www.epa.gov/ttn/caaa/t1/memoranda/siproc.pdf.
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    The EPA is also finalizing a partial disapproval of Louisiana's RH 
SIP revision insofar as this SIP revision relies on deficient BART 
evaluations for four non-electric generating unit (non-EGU) subject-to-
BART sources. The legal effect of the final partial disapproval for 
Louisiana's June 13, 2008, SIP revision is to provide the EPA authority 
to issue a FIP at any time, and to obligate the Agency to take such 
action no more than two years after the effective date of the EPA's 
final action. 42 USC 7410(c)(1); CAA 110(c)(1).
    Note that in another action, signed May 30, 2012, the EPA finalized 
its finding that the trading programs in the Transport Rule would 
achieve greater reasonable progress towards the national goal than 
would BART in the states in which the Transport Rule applies. See 77 FR 
33642. In that action, the EPA finalized a limited disapproval \4\ of 
Louisiana's June 13, 2008, RH SIP revision insofar as those revisions 
rely on the CAIR to address the impact of emissions from the State's 
electric generating units (EGUs). However, that action did not finalize 
a FIP for Louisiana. The legal effect of that final limited disapproval 
for Louisiana's June 13, 2008, SIP revision is to provide the EPA 
authority to issue a FIP at any time, and to obligate the Agency to 
take such action no more than two years after the effective date of the 
EPA's final action.
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    \4\ As explained in the 1992 Calcagni Memorandum, ``[t]hrough a 
limited approval, the EPA [will] concurrently, or within a 
reasonable period of time thereafter, disapprove the rule * * * for 
not meeting all of the applicable requirements of the Act. * * * 
[T]he limited disapproval is a rulemaking action, and it is subject 
to notice and comment.'' Final limited disapproval of a SIP 
submittal does not affect the federal enforceability of the measures 
in the subject SIP revision nor prevent state implementation of 
these measures.
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    Specifically, the EPA is finalizing a partial limited approval and 
a partial disapproval of a revision to the Louisiana SIP submitted by 
the State of Louisiana on June 13, 2008, as meeting some of the 
applicable regional haze requirements as set forth in sections 169A and 
169B of the CAA and in 40 CFR 51.300-308. In this action, the EPA 
grants a partial limited approval of the LA RH SIP submittal for 
meeting the requirements of: 51.308(d), for the core requirements for 
regional haze SIPs, except for the requirements of 51.308(d)(3); 
51.308(f), for the commitment to submit comprehensive periodic 
revisions of regional haze SIPs; 51.308(g), for the commitment to 
submit periodic reports describing progress towards the reasonable 
progress goals (RPGs); 51.308(h), for the commitment to conduct 
periodic determinations of the adequacy of the existing regional haze 
SIP; and 51.308(i), for coordination with state and Federal Land 
Managers. However, in this action the EPA is also partially 
disapproving the LA RH SIP submittal because it does not include fully 
approvable measures for meeting the requirements of 40 CFR 
51.308(d)(3), long-term strategy for regional haze as it relies on 
deficient non-EGU BART analyses; and 51.308(e), BART requirements for 
regional haze visibility impairment with respect to emissions of 
visibility impairing pollutants from four non-EGUs.

III. Comments Received and Our Responses

    The EPA received four sets of comments on the February 28, 2012, 
rulemaking proposing a partial limited approval and a partial 
disapproval of Louisiana's June 13, 2008 SIP revision.

[[Page 39427]]

Specifically, the comments were received from the National Parks 
Service; the LDEQ; Exxon Mobil Corporation; and Tulane Environmental 
Law Clinic, on behalf of the Gulf Restoration Network. Full sets of the 
comments provided by all of the aforementioned entities (hereinafter 
referred to as ``the Commenter'') are provided in the docket for 
today's final action. The docket for this action is available at 
www.regulations.gov under Docket Identification No. EPA-R06-OAR-2008-
0510. A summary of the comments and the EPA's responses are provided 
below.
    Comment 1: The EPA does not have the authority under the CAA to 
issue a limited approval of Louisiana's RH SIP. The CAA provides that 
the EPA can approve a SIP submittal in whole or can approve part of a 
submittal and disapprove the other parts. CAA section 110(k)(3). But 
the CAA says nothing about allowing the EPA to grant a ``limited 
approval.''
    Response 1: The EPA disagrees with the comment that the EPA lacks 
the authority to give limited approval of Louisiana's RH SIP. As 
discussed in the September 7, 1992, EPA memorandum cited in the 
proposed rulemaking,\5\ although section 110(k) of the CAA may not 
expressly provide authority for limited approvals, the plain language 
of section 301(a) does provide ``gap-filling'' authority authorizing 
the Agency to ``prescribe such regulations as are necessary to carry 
out'' the EPA's CAA functions. The EPA may rely on section 301(a) in 
conjunction with the Agency's SIP approval authority in section 
110(k)(3) to issue limited approvals where it has determined that a 
submittal strengthens a given state SIP and that the provisions meeting 
the applicable requirements of the CAA are not separable from the 
provisions that do not meet the CAA's requirements. The EPA has adopted 
the limited approval approach numerous times in SIP actions across the 
nation over the last twenty years. Limited approval is appropriate for 
part of the SIP submittal here because the EPA has determined that a 
portion of Louisiana's SIP revisions addressing regional haze, as a 
whole, strengthen the State's SIP and because the provisions in the SIP 
revisions that relate to BART for EGUs are not separable. Further, this 
limited approval complements the national ``Better-than-BART'' action, 
which proposed a limited disapproval for the LA RH SIP due to its 
reliance on the remanded CAIR for BART for EGUs. Adopting the 
Commenter's position would ignore CAA section 301 and violate the 
```fundamental canon of statutory construction that the words of a 
statute must be read in their context and with a view to their place in 
the overall statutory scheme'. * * * A court must therefore interpret 
the statute `as a symmetrical and coherent regulatory scheme,' * * * 
and `fit, if possible, all parts into an harmonious whole.''' FDA v. 
Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (quoting 
Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 809 (1989), 
Gustafson v. Alloyd Co., 513 U.S. 561, 569 (1995), and FTC v. Mandel 
Brothers, Inc., 359 U.S. 385, 389 (1959)).
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    \5\ The EPA's 1992 Calcagni Memorandum.
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    Comment 2: The EPA cannot partially approve or partially disapprove 
a RH SIP without evaluating Louisiana's proposed SIP as a whole. The 
EPA has proposed to issue a FIP to address the deficiencies in 
Louisiana's SIP associated with the BART requirements for 
NOX for EGUs, but did not propose a FIP for the EGU BART 
requirements for SO2. Accordingly, Louisiana and the EPA 
must issue BART determinations for SO2 at each source 
subject to BART, including those EGUs subject to the Transport Rule. 
Because of this bifurcated treatment, the proposed partial SIP violates 
the CAA and RHR because the EPA failed to evaluate, let alone 
determine, whether exempting Louisiana EGUs from BART complies with the 
CAA's reasonable progress mandate. To meet the 2064 goal, a regional 
haze plan must include two components: BART limits and a long-term 
strategy to achieve reasonable progress toward that goal. Because BART 
is a critical component to achieving reasonable progress, neither the 
states nor the EPA can exempt sources from the RHR's BART requirements 
without any consideration of how doing so will affect the overarching 
reasonable progress mandate. All required components of a RH SIP or FIP 
affect each other, are part of a ``single administrative action,'' and 
must be evaluated together to determine compliance with the CAA and 
RHR. The EPA has failed to account for how, in the absence of relied 
upon SO2 reductions anticipated under CAIR, it will maintain 
its uniform rate of progress. The EPA's failure to consider together 
the proposed alternative BART program, BART for SO2, the LTS 
and RPGs in Louisiana's SIP violates the CAA and RHR and is arbitrary 
and capricious.
    Response 2: We have evaluated the LA RH SIP submittal as a whole 
and at this time we are taking final action on all elements of the LA 
RH SIP submittal that were not addressed in the national Better-than-
BART rule. Louisiana must consider whether EGUs previously covered by 
the CAIR, whether subject to BART or not, should be controlled to 
ensure reasonable progress to meet the State's long-term strategies. 
However, insofar as Louisiana's LTS and RPGs are affected by the remand 
of CAIR, those issues are addressed in the national Better-than-BART 
rulemaking and are outside the scope of this action on the remainder of 
the LA RH SIP. Also, the CAA expressly provides authority to the EPA to 
partially approve and partially disapprove a SIP revision. 42 U.S.C. 
7410(k)(3). The EPA has adopted the partial approval approach numerous 
times in SIP actions across the nation over the last twenty years. 
Partial approval and partial disapproval is appropriate here because 
the EPA has determined that a portion of Louisiana's RH SIP meets 
regional haze requirements and a portion of it does not. Additionally, 
the EPA has discretion to issue an immediate FIP for all or part of the 
deficiencies in the LA RH SIP; however, the EPA is not under an 
obligation to promulgate a FIP for any part of the LA RH SIP at this 
time because the FIP clock has not begun yet. See Section II of this 
action for additional information about the FIP. While the EPA proposed 
a FIP for Louisiana for NOX BART for EGUs, the final 
national Better-than-BART rule does not include a FIP for 
NOX BART for EGUs.\6\ Without a FIP, the Louisiana RH SIP 
contains a gap for NOX BART for EGUs. Additionally, because 
no FIP was promulgated for SO2 in Louisiana, the Louisiana 
RH SIP contains a gap for SO2 BART for EGUs. Therefore, 
Louisiana must submit and the EPA must approve a revised SIP submittal 
to address both NOX and SO2 BART for EGUs to cure 
the deficiencies in the SIP resulting from the remand of CAIR. 
Louisiana may elect to rely on the Transport Rule for NOX 
BART for EGUs in that submittal. However, because Louisiana is not 
covered under the Transport Rule for SO2, the State must 
submit source-specific SO2 BART evaluations for the subject-
to-BART EGUs in Louisiana. As discussed further in our responses to 
several comments below, Louisiana must also submit revisions sufficient 
to cure the deficiencies in the non-EGU BART determinations.
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    \6\ The national proposal proposed a NOX BART EGU FIP 
for Louisiana, but as the State did not receive a finding of failure 
to timely submit a SIP and requested the allowable time to revise 
and resubmit a SIP, the final action did not include such a FIP.
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    Comment 3: The EPA should not finalize a limited disapproval of the 
LTS in the LA RH SIP based on the

[[Page 39428]]

Transport Rule. The Transport Rule is currently in litigation and has 
been stayed by the Court. The EPA cannot legally base a SIP action on a 
regulation that is not effective and that may be vacated and remanded. 
Limited disapproval of the LA RH SIP submittal will trigger the ``two 
year sanction clock'' imposed by the CAA. The State will be required to 
submit a SIP revision, with the EPA review and approval within two 
years of the denial when the ``applicable standard'' is still unknown 
at this time. Instead, the CAIR is currently effective and will 
continue to be implemented by the EPA, the States, and the regulated 
community indefinitely. Once the question of regional transport of 
particulate matter (PM) and PM precursors is resolved and a regulation 
replaces CAIR, the State will submit a SIP revision to implement BART 
for EGUs in accordance with provisions of the new program. However, 
until this question is resolved, Louisiana and its regulated entities 
are obligated to comply with the effective regulation and so is the 
EPA. The State and its regulated entities are entitled to rely upon the 
effective regulation as the basis for the EPA action concerning the 
Louisiana SIP. The EPA is compelled to approve the current LA RH SIP 
submittal that relies on CAIR and the EPA's prior determination that 
CAIR is equivalent to BART.
    Response 3: In a separate action that revises the RHR and finds 
that the Transport Rule is better than BART we finalized a limited 
disapproval of Louisiana's long-term strategy. See 77 FR 33642. The 
docket for that rulemaking (Docket ID No. EPA-HQ-OAR-2011-0729) is 
available at www.regulations.gov. For that reason, we are not taking 
action on the long-term strategy in this action insofar as the LA RH 
SIP relied on the CAIR. Therefore, the comment that the EPA should not 
disapprove the LA RH LTS based on the State's reliance on the CAIR is 
outside the scope of this action. Additionally, we clarify that today's 
final action on the remainder of LA's RH SIP triggers a two-year FIP 
clock,\7\ but does not start a sanctions clock for Louisiana.\8\ See 
Section II of this action for additional information about the FIP.
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    \7\ 42 U.S.C. 7410(c)(1); CAA 110(c)(1).
    \8\ See 42 U.S.C. 7509.
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    While the comment is outside the scope of this action, we note that 
CAIR has been remanded and only remains in place temporarily; 
therefore, the EPA cannot fully approve the regional haze SIP revisions 
that have relied on the now-temporary reductions from CAIR. Although 
CAIR is currently in effect as a result of the December 30, 2011 Order 
by the U.S. Court of Appeals for the D.C. Circuit staying the Transport 
Rule, this does not affect the substance of the D.C. Circuit's ruling 
in 2008 remanding CAIR to the EPA. Additionally, in the Transport Rule, 
the EPA determined that Louisiana need not be covered for 
SO2 controls to prevent impacts on PM nonattainment or 
maintenance in other states. As a result of the CAIR remand and the 
SO2 finding for Louisiana in the Transport Rule, no national 
rule addresses SO2 reductions in Louisiana. We recognize 
that the final outcome of the PM transport requirements that CAIR and 
the Transport Rule are designed to address is uncertain at this time. 
However, the applicable standard for BART is certain under the RHR. 
Thus, notwithstanding the uncertain status of the Transport Rule and 
the continued implementation of CAIR, Louisiana must address 
SO2 BART in order to comply with the RHR. We believe that 
Louisiana should be working to address SO2 BART on a source 
by source basis.
    Comment 4: The Commenter opposes the EPA's December 30, 2011, 
proposed rulemaking to find that the Transport Rule is better than BART 
and to use the Transport Rule as an alternative to BART for Louisiana 
and other states subject to the Transport Rule. The Commenter 
incorporates its comments on that December 30, 2011, rulemaking by 
reference and outlines several of those comments, including its 
arguments that the Transport Rule is not better than BART, and that the 
EPA cannot rely on the Transport Rule as an alternative program or 
measure to displace BART requirements for those BART-eligible sources 
in Transport Rule states.
    Response 4: These comments are beyond the scope of this rulemaking. 
In today's rule, the EPA is taking final action on the proposed partial 
limited approval and partial disapproval of Louisiana's RH SIP. The EPA 
did not propose to find that participation in the Transport Rule is an 
alternative to BART in this action. As noted above, EPA made that 
proposed finding in a separate action on December 30, 2011, and the 
Commenter is merely reiterating and incorporating its comments on that 
separate action. EPA addressed these comments concerning the Transport 
Rule as a BART alternative in a final action that was signed on May 30, 
2012. See 77 FR 33642. The EPA's response to these comments can be 
found in Docket ID No. EPA-HQ-OAR-2011-0729 at www.regulations.gov.
    Comment 5: The commenter objects to the EPA's limited approval of 
portions of LA's RH SIP because it replaces reliance on CAIR with 
reliance on the Transport Rule for NOX emissions from EGUs. 
77 FR 11839, 11840-41. The effect of this proposed rule is to exempt 
Louisiana EGUs from the RHR's requirements for case-by-case, source-
specific analyses and installation and operation of BART to reduce 
NOX and achieve the RHR's visibility mandates. This 
exemption is based on the EPA's proposed finding that the Transport 
Rule would be better than BART at making reasonable progress with 
regard to NOX emissions toward achieving the RHR's goal of 
eliminating human caused visibility impairment at Class I areas by 
2064. Id. at 11846; see also 40 CFR 51.308(e)(3) (criteria for 
determining if an alternative measure is better than BART). But the 
EPA's proposed Better-than-BART rule as applied to all 28 states 
covered under the Transport Rule, including Louisiana, is inconsistent 
with the CAA. The EPA has not complied with the CAA's statutory 
requirements for a BART exemption, has failed to make a state-by-state 
demonstration that the Transport Rule is better than BART, and has 
included fatal methodological flaws in its proposed determination. 
Additionally, the EPA's determination fails to account for the 
geographic and temporal uncertainties in emissions reductions under the 
Transport Rule--uncertainties inherent in a cap-and-trade program. 
Moreover, Louisiana cannot rely on the Transport Rule to exempt 
Louisiana's EGUs from the RHR's BART requirements because the D.C. 
Circuit has indefinitely stayed the rule. The Transport Rule's 
uncertainties and lack of year round emission reduction requirements 
make it unsuitable as a BART alternative in Louisiana. Moreover, the 
application of the Transport Rule as a substitute for source specific 
BART is uniquely and particularly problematic in Louisiana, and four 
other states (Florida, Oklahoma, Mississippi, and Arkansas) for which 
the EPA exempts sources from BART NOX requirements, because 
NOX emissions are only covered by the Transport Rule during 
the ozone season--less than half the year. Finally, the national rule 
expressly states that the EPA is taking no action on the RPGs, 
effectively making it impossible to determine whether the Transport 
Rule for an ozone season only state could achieve greater reasonable 
progress than an absent or unconfirmed goal. See 76 FR 82219, at 82221. 
Absent a uniform rate of progress calculation, LTS, or RPGs, the EPA 
has no rational basis to determine that the Transport Rule

[[Page 39429]]

emissions controls are sufficient to comply with the RHR reasonable 
progress mandate. The commenter also incorporated by reference comments 
from Earthjustice on the national Better-than-BART proposed rule and 
comments from National Parks Conservation Association, et al. For the 
reasons stated above and the reasons provided in the national comments, 
the Transport Rule does not satisfy the requirements of the RHR, and 
cannot be approved as a substitute for BART as proposed. Instead, the 
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 Louisiana EGUs.
    Response 5: As discussed above, in today's rule, the EPA is taking 
final action on the proposed partial limited approval and partial 
disapproval of Louisiana's RH SIP. These comments are beyond the scope 
of this rulemaking. EPA addressed these comments concerning the 
Transport Rule as a BART alternative in a final action that was signed 
on May 30, 2012. See 77 FR 33642. The EPA's response to these comments 
can be found in Docket ID No. EPA-HQ-OAR-2011-0729 at 
www.regulations.gov. Additionally, insofar as this comment discusses 
regional haze actions for states other than Louisiana, the comments are 
outside the scope of this rulemaking.
    Comment 6: The EPA proposed that the BART determination for Rhodia 
is deficient at this time. The SIP includes a BART analysis for Rhodia 
that the LDEQ feels is complete. The analysis takes into account all 
available control technologies for removing SO2 at the 
affected units. All of the available control technologies provide a 
control efficiency of approximately 94%. Rhodia considered three 
abatement alternatives: double absorption, sodium scrubbing (caustic/
soda ash), and ammonia scrubbing. Rhodia selected caustic scrubbing as 
the most effective control option that is also cost effective. This 
control strategy is currently in place for Unit 2 and will be in place 
for Unit 1 by May 2012. SO2 emissions will be reduced from 
over 8,800 tons per year (tpy) to a permit limit of 1,075 tpy for the 
units combined. This control not only meets BART but surpasses the 
control for new facilities under New Source Performance Standards. 
Modeling results with the SO2 controls show all impacts of 
Rhodia to the Breton and Caney Creek Wilderness Areas are below 0.5 
deciviews. The LDEQ believes that this source has the most stringent 
control strategy available and no further BART analysis is necessary as 
allowed by 40 CFR Part 51 Appendix Y(IV)(D)(1)(9). The LDEQ anticipates 
that the controls will be installed for Unit 1 prior to the EPA 
approval of the LA RH SIP submittal. The controls will be required to 
be diligently maintained and are federally enforceable through Section 
905 of the Louisiana Administrative Code (LAC), Title 33, Part III 
(denoted LAC 33:III.905), which has been approved as part of the 
Louisiana SIP. The EPA should approve this BART analysis as it fulfills 
the BART requirements.
    Response 6: The LDEQ's RH SIP submittal properly identified Rhodia 
as a subject-to-BART source and provided information concerning the 
BART determination for Rhodia. We proposed to find that Rhodia's BART 
determination was deficient because it does not include a sufficient 
evaluation under 40 CFR 51.308(e)(1)(ii)(A). The LDEQ has determined 
that the control strategy selected for implementation by Rhodia is 
among the most stringent available. The LDEQ's determination is 
corroborated by the information provided in the LA RH SIP submittal, 
including a determination that Rhodia's units are subject-to-BART and 
the demonstration in the LA RH SIP Appendix G that the control 
strategies at Rhodia have approximately 94% control efficiency.\9\ The 
EPA finds that with the control strategy selected, the Rhodia units 
meet the BART requirements at 40 CFR 51 Appendix Y.OV.D.1.9 \10\ with 
the exception of having enforceable emissions limits for regional haze 
in the SIP (see also response to Comment 11 in this action). Although 
the SIP submittal said that, post-control, Rhodia is no longer subject-
to-BART, that determination is not approvable because once a unit is 
determined to be subject to BART, it must meet the requirements of 40 
CFR 51.308(e)(1)(ii). However, the LDEQ's comment letter in part 
addresses this deficiency in its determination that with controls, 
Rhodia meets BART. As indicated in the proposal, the LDEQ did not 
submit a complete BART evaluation for the Rhodia units; the submittal 
did not analyze controls for the units using the factors as required by 
40 CFR 51.308(e). However, with the LDEQ's finding that the controls at 
Rhodia are among the most stringent, the regional haze requirement for 
a BART analysis has been satisfied (however, the requirement for 
enforceable emissions limits is still not met).\11\ The EPA finds that 
the LDEQ acted reasonably within its discretion in determining that the 
controls selected by Rhodia are among the most stringent because the 
control efficiency for the technology selected is 94%.
---------------------------------------------------------------------------

    \9\ LDEQ Comment Letter, received March 29, 2012.
    \10\ We acknowledge that compliance with the BART Guidelines in 
40 CFR 51 Appendix Y is not mandatory for Rhodia because Rhodia is a 
non-EGU source. However, following these Guidelines is one option 
for subject-to-BART non-EGUs to ensure BART determinations are 
adequate.
    \11\ The EPA's finding is a logical outgrowth of the proposed 
rule. ``[A] final rule will be deemed to be the logical outgrowth of 
a proposed rule if a new round of notice and comment would not 
provide commentators with their first occasion to offer new and 
different criticisms which the agency might find convincing.'' 
Fertilizer Inst. v.  EPA, 935 F.2d 1303, 1311 (D.C. Cir. 1991) 
(citation and internal quotation marks omitted). In our proposal, we 
note that ``[t]he LDEQ may be able to find that the controls 
required under the CD are among the most stringent, and therefore, 
no additional controls would be required for these units to meet 
BART.'' As LDEQ has now provided this determination and the LA RH 
SIP submittal already contains sufficient technical information to 
support this determination, the controls at Rhodia are sufficient to 
meet BART, and are therefore approvable in accordance with our 
proposal. However, as stated in our response, the LA RH SIP for 
Rhodia is not fully approvable at this time because it does not 
contain enforceable emissions limits for regional haze.
---------------------------------------------------------------------------

    However, the emissions limits for Rhodia's subject-to-BART units 
were not included in the RH SIP, so the LDEQ must include the BART 
emission limits in the LA RH SIP through a SIP revision.\12\ More 
information about this requirement is provided in response to Comment 7 
in this action.
---------------------------------------------------------------------------

    \12\ CAA 169A(b)(2); 40 CFR 51.308(e); and 64 FR 35714, at 
35741.
---------------------------------------------------------------------------

    Comment 7: The EPA proposed that the state should have identified 
the Mosaic facility as being subject to BART and made a BART 
determination for the source. The LDEQ agrees that Mosaic should be 
identified as a BART facility. Mosaic has installed or is scheduled to 
install controls required by a Consent Decree (CD) for Sulfuric Acid 
Trains A, D, and E. Only Train A is subject to BART, but it should be 
noted that significant reductions have been made on Trains D and E 
also. The following is a summary of these controls:

--A scrubber system has been installed on Train A reducing 
SO2 emissions by 9,490 tpy.
--SO2 emissions from Train D have been reduced by 576 tpy.
--SO2 emissions from Train E have been reduced by 942 tpy.

    The LDEQ believes that this source has the most stringent control 
strategy available and no further BART analysis is necessary as allowed 
by 40 CFR Part 51 Appendix Y(IV)(D)(1)(9). The scrubber system has been 
installed on Train A. The controls are required to be diligently 
maintained and are federally enforceable through LAC 33:III.905, which 
has been approved by the EPA as

[[Page 39430]]

part of the Louisianan SIP. The EPA should approve this BART analysis 
as it fulfills the BART requirements.
    Response 7: The EPA acknowledges the LDEQ's agreement that Mosaic 
is a subject-to-BART source. However, we cannot approve the BART 
analysis at this time. The LDEQ did not identify Mosaic as being 
subject to BART in the submitted SIP and therefore did not perform a 
BART analysis. Consequently, the EPA cannot act today upon the 
information in the comments because there is no logical outgrowth. ``A 
final rule is only a logical outgrowth of the proposed rule if 
interested parties should have anticipated that the change was 
possible, and thus reasonably should have filed their comments on the 
subject during the notice-and-comment period. * * * Notice of the 
agency's intention is crucial to ensure that agency regulations are 
tested via exposure to diverse public comment * * * to ensure fairness 
to affected parties, and * * * to give affected parties an opportunity 
to develop evidence in the record to support their objections to the 
rule and thereby enhance the quality of judicial review.'' Int'l Union, 
United Mine Workers of America v. Mine Safety and Health Admin., 626 
F.3d 84, 94-95 (D.C. Cir. 2010) (citing Int'l Union, United Mine 
Workers of America v. Mine Safety and Health Admin., 407 F.3d 1250, 
1259 (D.C. Cir. 2005)) (internal quotations omitted). With regard to 
Mosaic, we proposed to disapprove the LA RH SIP submitted June 13, 2008 
because the submittal failed to identify Mosaic as a subject-to-BART 
source. We noted that, once the LDEQ identifies Mosaic as subject to 
BART, the LDEQ needs to provide a BART evaluation for the EPA's review 
and action. The LDEQ has not completed the rulemaking and SIP revision 
process for the determination that Mosaic is subject to BART or for the 
Mosaic BART evaluation. Based on our proposal, the public could not 
have anticipated that the EPA would approve the state's identification 
of Mosaic as subject to BART and approve a BART evaluation for Mosaic. 
As a result, approval of Mosaic does not meet the standard for logical 
outgrowth for this final action. The LDEQ will need to revise its SIP 
after notice and comment to include Mosaic as a subject-to-BART source, 
and also to provide a determination of BART based on an analysis of the 
best system of continuous emission control technology available and 
associated emission reductions achievable for the facility.\13\ 
Although the LDEQ provided a determination in its comment that the 
control strategies selected for implementation by Mosaic are among the 
most stringent available, as discussed previously for the EPA to be 
able to consider this determination, the SIP must be revised after 
notice and comment to include the identification of Mosaic as a 
subject-to-BART source, and include a BART evaluation for the facility 
and be submitted to the EPA. The BART evaluation may include relevant 
permit information if applicable.
---------------------------------------------------------------------------

    \13\ 40 CFR 51.308(e)(1)(ii)(A).
---------------------------------------------------------------------------

    For Mosaic, in addition to including the facility as a subject-to-
BART source in the SIP, for the unit subject to BART for each 
pollutant, there must be sufficient information in the SIP to satisfy 
the requirement under 40 CFR 50.308(e)(1)(ii)(A): ``The determination 
of BART must be based on an analysis of the best system of continuous 
emissions control technology available and associated emissions 
reductions achievable. In this analysis, the state must take into 
consideration the technology available, the cost of compliance, the 
energy and non-air quality environmental impacts of compliance, any 
pollution control equipment in use at the source, the remaining useful 
life of the source, and the degree of improvement in visibility which 
may reasonably be anticipated to result from the use of such 
technology.''
    Also, the emissions limits for Mosaic's controls are required to be 
included in the RH SIP, so the LDEQ must include the BART emission 
limits in the LA RH SIP through a SIP revision.\14\ More information 
about this requirement is provided in response to Comment 8 in this 
action.
---------------------------------------------------------------------------

    \14\ CAA 169A(b)(2); 40 CFR 51.308(e); and 64 FR 35714, at 
35741.
---------------------------------------------------------------------------

    Comment 8: The EPA proposed that the BART determinations for Sid 
Richardson are deficient at this time. The LDEQ has determined that 
while SO2 controls may be technically feasible, they are not 
economically feasible. Modeling results for Sid Richardson show that in 
only 1 of the 3 modeled years did the 98th percentile day show a 
visibility impact above 0.5 dv. Sid Richardson provided a detailed 
analysis of the cost associated with implementing the technically 
feasible control techniques. Because all of the possible controls were 
deemed economically infeasible, an evaluation of the controls on the 
visibility impact at Breton is unnecessary. Sid Richardson is currently 
controlling SO2 by limiting sulfur content of the feed stock 
oil. The LDEQ has determined that this control is BART for this 
facility. The EPA should approve this BART analysis as it fulfills the 
BART requirements. The EPA is proposing that the NOX BART 
determination for Sid Richardson is deficient at this time.
    The LDEQ has determined that NOX controls for Sid 
Richardson are technically infeasible. Sid Richardson presented 
detailed information in the BART analysis discussing the infeasibility 
of NOX controls aside from good combustion practices. 
NOX controls were determined to be infeasible for the 
following reasons: Reactors: combustion modifications would affect the 
reaction process and ultimately, the yield and quality of the carbon 
black produced; selective non-catalytic reduction (SNCR) is infeasible 
because the reagent (urea or ammonia) would affect the yield and 
quality of the carbon black produced; selective catalytic reduction 
(SCR) is infeasible because of particulate loading that could come in 
contact with the catalyst causing a fire hazard; Absorption control is 
already in use since the flue gases are already in direct contact with 
the carbon black; Wet chemical scrubbers are used in a limited number 
of industrial applications and have not been used in the carbon black 
industry. Flares: There are no NOX control options 
available. Dryers: Combustion modifications would affect the yield and 
quality of the carbon black produced; SNCR is infeasible because the 
reagent (urea or ammonia) would affect the yield and quality of the 
carbon black produced; SCR is infeasible because of particulate loading 
that could come in contact with the catalyst causing a fire hazard; 
Absorption control is already in use since the flue gases are already 
in direct contact with the carbon black. The LDEQ stated that further 
BART analysis for NOX control is unnecessary and that the 
EPA should approve this BART analysis as it fulfills the BART 
requirements.
    Response 8: The EPA disagrees that the information provided in the 
SIP and comments for SO2 BART for Sid Richardson satisfies 
the requirements for a BART determination. The BART Rule provides that 
for each unit subject to BART, the state must satisfy the requirements 
under 40 CFR 50.308(e)(1)(ii)(A) by providing a determination of BART 
which ``must be based on an analysis of the best system of continuous 
emissions control technology available and associated emissions 
reductions achievable.'' In this analysis the state must take the 
following into consideration: ``The technology available, the cost of 
compliance, the energy and non-air quality environmental impacts of

[[Page 39431]]

compliance, any pollution control equipment in use at the source, the 
remaining useful life of the source, and the degree of improvement in 
visibility which may reasonably be anticipated to result from the use 
of such technology.'' A determination of economic infeasibility is not 
sufficient information to meet these requirements. States have a duty 
to evaluate the statutory factors cited above.\15\ It is important 
that, in analyzing the technology, states take into account the most 
stringent emission control level that the technology is capable of 
achieving. States should consider the level of control that is 
currently achievable at the time the BART analysis is conducted.\16\ 
The CAA gives states discretion to make BART determinations; and the 
BART regulations and the preambles to the proposed and final BART Rule 
contain examples showing that a state has discretion to choose an 
alternative control level after considering the five statutory factors. 
However, section 169A(g) of the CAA requires States to consider these 
statutory factors in determining BART for affected sources. If a proper 
evaluation of the five statutory factors demonstrates that an emission 
limit is BART for the subject-to-BART source in question, then the 
State must require the source to comply with such emission limit. The 
EPA agrees that states have considerable discretion in making BART 
determinations, but in doing so the State must conduct a proper 
evaluation of the five statutory factors, as required by 40 CFR 
51.308(e)(1)(ii)(A) and section 169A(g) of the CAA.
---------------------------------------------------------------------------

    \15\ CAA 169A(g)(2); 40 CFR 51.308(e)(1)(ii)(A).
    \16\ 70 FR 39104, at 39170-71.
---------------------------------------------------------------------------

    Also, the LDEQ states in the comment that Sid Richardson is 
currently controlling SO2 by limiting sulfur content of the 
feed stock oil, and as indicated in the LA RH SIP Appendix G, the 
limitation is already reflected in the Addis Plant's emission limits; 
\17\ however, the record does not provide material that supports this 
conclusion. No enforceable permit conditions or similar restrictions 
were provided, nor is there an analysis demonstrating that limiting of 
the sulfur content of the feed stock oil meets BART requirements.
---------------------------------------------------------------------------

    \17\ LDEQ Comment Letter, received March 29, 2012.
---------------------------------------------------------------------------

    The EPA agrees with the comment that the modeling results show that 
the Sid Richardson facility has a visibility impact greater than the 
State's established BART threshold of 0.5 dv in one of the three years 
considered. As such, Sid Richardson is subject to BART, and a full BART 
analysis is required. Consistent with 40 CFR 51.308(e)(1)(i) and (ii), 
the LDEQ chose a 0.5 dv threshold for BART (LA RH SIP Chapter 9); 
included Sid Richardson in its list of BART-eligible sources within the 
State, and provided a determination of BART for the facility as 
required for each source in the State ``that emits any air pollutant 
which may reasonably be anticipated to cause or contribute to any 
impairment of visibility in any mandatory Class I Federal Area. All 
such sources are subject to BART.'' \18\ The LDEQ determined that Sid 
Richardson is subject-to-BART because it is a BART-eligible source with 
visibility impacts on the 98th percentile day above the state's chosen 
threshold, LA RH SIP Chapter 9, page 53.\19\ The EPA disagrees with the 
comment that an evaluation of the visibility benefits is not necessary. 
``CAA section 169A(g)(2) clearly requires an evaluation of the expected 
degree of improvement in visibility from BART controls. All five 
statutory factors [required under CAA 169A(g)(2)], including cost-
effectiveness and expected visibility improvement, should be reflected 
in the level of BART control that the State implements.'' 70 FR 39104, 
at 39129. Sid Richardson was determined to be subject-to-BART and a 
full BART analysis is required under 40 CFR 51.308(e)(1)(ii)(A).
---------------------------------------------------------------------------

    \18\ 40 CFR 51.308(e)(1)(ii).
    \19\ Note that the use of the 98th percentile of modeled 
visibility values is appropriate because it excludes roughly seven 
days per year from consideration. This approach captures ``the 
sources that contribute to visibility impairment in a Class I area, 
while minimizing the likelihood that the highest modeled visibility 
impacts might be caused by unusual meteorology or conservative 
assumptions in the model.'' 70 FR 39104, at 39121.
---------------------------------------------------------------------------

    The EPA disagrees that the information provided in the SIP and 
comments for NOX BART for Sid Richardson satisfies the 
requirements for a BART determination. For Sid Richardson for 
NOX, the LDEQ states in its comments that all controls are 
infeasible, which is consistent with the SIP submittal (LA RH SIP 
Chapter 9 states that the Sid Richardson engineering analyses included 
the potential installation of NOX add-on controls, but it 
determined that all were infeasible--there were no demonstrated 
NOX scrubbing technologies at any carbon black plants). 
However, there is not sufficient information in the comment letter or 
in the LA RH SIP submittal to support this conclusion. In particular, 
we note that SCR has been discounted as technically infeasible because 
of the potential for particulate matter to contact the catalyst. We 
believe there are a number of applications where SCR has been used in 
situations with high particulate loading such as Fluidized Bed 
Catalytic Cracking Units (FCCU). In fact, as discussed in the Louisiana 
SIP and in other sections of this action, ConocoPhillips is a subject-
to-BART source that has installed SCR on an FCCU. It is not apparent 
why this technology would not be applicable to carbon black plants, as 
well, given the similar high particulate matter situations. We do not 
believe Louisiana provided a sufficient record to justify that SCR is 
infeasible for the Carbon Black Industry. Therefore, the state must 
satisfy the requirement for NOX for Sid Richardson for an 
``analysis of the best system of continuous emission control technology 
available and associated emissions reductions achievable'' as required 
under 40 CFR 50.308(e)(1)(ii)(A).
    Also, the emission limits for Sid Richardson's controls are 
required to be included in the RH SIP, so the LDEQ must include the 
BART emission limits in the LA RH SIP through a SIP revision.\20\ In 
addition, we encourage Sid Richardson and the LDEQ to consider 
achievable emissions reductions in determining emissions limits for 
this unit to include in the SIP, as required under 40 CFR 
50.308(e)(1)(ii)(A). More information about this requirement is 
provided in response to Comment 9 in this action.
---------------------------------------------------------------------------

    \20\ CAA 169A(b)(2); 40 CFR 51.308(e); and 64 FR 35714, at 
35741.
---------------------------------------------------------------------------

    Comment 9: The EPA proposed that the BART determination for 
ConocoPhillips is deficient at this time. The SIP includes a BART 
analysis for ConocoPhillips that the LDEQ feels is complete. Conoco has 
installed or is scheduled to install controls required by a consent 
decree with the EPA \21\ for the FCCU, process refinery flares and the 
crude unit heater. The following is a summary of these controls.
---------------------------------------------------------------------------

    \21\ Civil Action No. H-05-0285, Federal District Court for the 
Southern District of Texas.
---------------------------------------------------------------------------

     A wet gas scrubber was installed on the FCCU in 2009 that 
reduced SO2 emissions by 2,500 tpy and PM emissions by 220 
tpy. SCR is scheduled to be installed by 2015 that will reduce 
NOX emissions by 760 tpy.
     SCR and a NOX CEMS were installed on the crude 
unit heater in 2009 that reduced NOX emissions by 700 tpy.
     Flare gas recovery was installed for the process refinery 
flares in 2011 that reduced NOX emissions by 16 tpy and 
SO2 emissions by 330 tpy.
    The LDEQ believes that the most stringent controls available have 
been installed or are scheduled to be installed

[[Page 39432]]

on these sources. According to 40 CFR Part 51 Appendix Y(IV)(D)(1)(9) 
because the source will have the most stringent controls available, it 
is not necessary to comprehensively complete each step of the BART 
analysis. The EPA should approve this BART analysis as it fulfills the 
BART requirements.
    The EPA proposed to accept the BART analysis for remaining sources 
at the facility. However, most of these sources have a ``D'' which 
represents proposed disapproval in Table 10 of the TSD. The LDEQ feels 
that no further BART analysis is necessary for ConocoPhillips and 
requests that the ``D'' be changed to ``NA.''
    Response 9: We disagree with the comment that the BART evaluation 
for ConocoPhillips is complete for the subject-to-BART units that were 
included in the 2005 CD. Although some emissions reduction information 
was provided for some of the units and controls, without information 
about the year or baseline emissions, the EPA is unable to verify the 
determination that the control technologies and emission limits for 
SO2, NOX, and PM selected for the crude unit 
heater, the CO boilers, and the flares are among the most stringent. 
The submittal did not analyze controls for the units using the factors 
as required by 40 CFR 51.308(e). Although the LDEQ provided a 
determination in its comment that the control strategies selected for 
implementation by ConocoPhillips are among the most stringent 
available, the record does not provide sufficient material to support 
the LDEQ's conclusion. The BART evaluation may include relevant permit 
information if applicable, and also may include a demonstration of 
emissions reductions achieved by the selected technologies. It is 
expected that emissions reductions for control technologies which are 
among the most stringent will be high unless the LDEQ can demonstrate 
that lower efficiency rates are sufficient to meet BART requirements.
    For ConocoPhillips, for the five units under the CD that are 
subject to BART, for each pollutant, there is not sufficient 
information in the SIP nor in the comments to satisfy the requirement 
under 40 CFR 50.308(e)(1)(ii)(A): ``The determination of BART must be 
based on an analysis of the best system of continuous emissions control 
technology available and associated emissions reductions achievable. In 
this analysis the state must take into consideration the technology 
available, the cost of compliance, the energy and non-air quality 
environmental impacts of compliance, any pollution control equipment in 
use at the source, the remaining useful life of the source, and the 
degree of improvement in visibility which may reasonably be anticipated 
to result from the use of such technology.''
    Also, the emissions limits for ConocoPhillips's controls are 
required to be included in the RH SIP, so the LDEQ must include the 
BART emission limits in the LA RH SIP through a SIP revision.\22\ In 
addition, we encourage ConocoPhillips and the LDEQ to consider 
achievable emissions reductions in determining emissions limits for 
this unit to include in the SIP, as required under 40 CFR 
50.308(e)(1)(ii)(A). More information about this requirement is 
provided in response to Comment 10 in this action.
---------------------------------------------------------------------------

    \22\ CAA 169A(b)(2); 40 CFR 51.308(e); and 64 FR 35714, at 
35741.
---------------------------------------------------------------------------

    For the ConocoPhillips units which were not part of the CD, the 
Commenter is correct that the EPA proposed to accept the BART analysis 
for those units, and that Table 10 of the TSD is in error for those 
units. Accordingly, the EPA has revised the table and an updated Table 
10 is provided in the docket associated with this action as an 
amendment to the TSD.
    Comment 10: The EPA should provide clarification that the CAA and 
the RHR both allow states the discretion to make BART determinations 
for non-EGUs, and states are not required to use the ``5-step'' 
analysis that is specifically required only for 750 MW+ EGUs. The 
proposal contains statements such as: ``* * * all subject to BART 
sources are required to comply with the five BART factors (or steps). 
40 CFR 51.308(e)(1)(ii)(A).'' Additionally, the commenter is concerned 
that the EPA proposed to find that Louisiana's RPGs and LTS contain 
deficiencies because they are based on BART determinations that are not 
fully approvable. Louisiana has met the obligation to determine BART 
for Louisiana refineries if they have documented the rationale for the 
BART determinations using their state authority. CAA section 
169(b)(2)(A); 77 FR 3966, at 3969. Some of the subject-to-BART 
determinations with a proposed disapproval are not EGUs. Therefore, the 
LDEQ has the discretion to make BART determinations in a fashion 
reasonable in the judgment of the LDEQ and supply the rationale to the 
EPA. The EPA has accepted states' BART determinations for non-EGUs not 
subject to the ``5-step'' analysis. For example, the EPA proposed to 
approve Illinois's BART determinations for two petroleum refineries on 
the basis that the Illinois Environmental Protection Agency found that 
the emissions limits for the subject-to-BART units established by CDs 
to meet BACT also satisfy BART. That proposal further states that the 
CDs are federally enforceable and the emissions limits at issue must be 
incorporated into federally enforceable permits. 77 FR 3966, at 3973. 
Therefore, the EPA should approve Louisiana's non-EGU BART 
determinations, especially the ConocoPhillips Refinery, that rely on 
emissions limits established by CDs.
    Response 10: We agree with the commenter that the five steps in the 
BART guidelines at 40 CFR 51 Appendix Y.IV.D \23\ are mandatory only 
for subject-to-BART EGUs with a total generating capacity greater than 
750 MWs. However, ``all BART determinations must be based on an 
analysis of the best system of continuous emission control technology 
available and associated emission reductions achievable for each BART-
eligible source that is subject to BART within the state.'' For all 
BART determinations, including those for non-EGUs, 40 CFR 
51.308(e)(1)(ii)(A) requires states to consider the following factors: 
the technology available; the costs of compliance; the energy and non-
air quality environmental impacts of compliance; any pollution control 
equipment in use at the source; the remaining useful life of the 
source; and the degree of improvement in visibility which may 
reasonably be anticipated to result from the use of such technology. 
See also, 42 USC 7941(g)(2); CAA 169A(g)(2). The submitted BART 
analyses should address all of these factors or provide some other 
basis for ensuring subject-to-BART units meet BART in order to be 
approvable. The commenter contends that the LDEQ has the discretion to 
make BART determinations in a fashion reasonable in the judgment of the 
LDEQ. To clarify, states are free to determine the weight and 
significance of each of the factors listed above, but they must arrive 
at a reasoned determination that is supported by an adequate record. We 
acknowledge that BART-determining authorities presented with equivalent 
facts and circumstances may arrive at different, but reasoned, BART 
determinations. For additional information about our final action on 
these non-EGU BART determinations, please see our discussion of the 
non-EGU BART determinations and enforceable emissions limits for those

[[Page 39433]]

subject-to-BART units addressed in our responses to Comments 6, 7, 8, 
and 9 in this action. Finally, we disagree with the comment that the 
EPA should approve Louisiana's non-EGU BART determinations that rely on 
emissions limits established by CDs. See the following response to 
Comment 11.
---------------------------------------------------------------------------

    \23\ Step 1: Identify All Available Retrofit Control 
Technologies, Step 2: Eliminate Technically Infeasible Options, Step 
3: Evaluate Control Effectiveness of Remaining Control Technologies, 
Step 4: Evaluate Impacts and Document the Results, and Step 5: 
Evaluate Visibility Impacts. 40 CFR 51 Appendix Y.IV.D.
---------------------------------------------------------------------------

    Comment 11: Emission limits for the subject-to-BART units should 
not be required to be included in the SIP. The emissions limitations 
are contained in the permits and are enforceable as required. 
Furthermore, the LDEQ will rely on the SIP approved provision contained 
in LAC. 33:111.905, which specifies that ``* * * when facilities have 
been installed on a property, they shall be used and diligently 
maintained in proper working order whenever any emissions are being 
made which can be controlled by the facilities, even though the ambient 
air quality standards in affected areas are not exceeded.'' If 
necessary, the LDEQ will include the CDs affected between the EPA and 
Rhodia, Mosaic and ConocoPhillips, respectively, as evidence of 
enforceable emissions limitation. However, the LDEQ will not attach the 
operating permits that are the result of these CDs.
    Response 11: We disagree with the comment that emission limits for 
the subject-to-BART units should not be required to be included in the 
SIP. 40 CFR 51.308(e) requires the state to ``submit an implementation 
plan containing emissions limits representing BART'' for each subject-
to-BART unit in the state. For an emissions limit contained in a 
federal CD to be a federally enforceable component of a RH SIP, the 
emissions limit itself must be incorporated into the SIP. States do 
have some flexibility in how this incorporation occurs. For example, a 
state could list the specific emissions limit for each subject-to-BART 
unit as part of the regulatory text in the SIP submittal or a state 
could incorporate these limits into its SIP submittal's regulatory text 
by referencing the federally enforceable Title I permit that contains 
the emissions limits for the subject-to-BART units at a facility. See 
e.g., 77 FR 19, January 3, 2012; 76 FR 80754, December 27, 2011; 76 FR 
36329, June 22, 2011; and 76 FR 38997, July 5, 2011. If the state 
chooses to incorporate emissions limits from a Title I permit into the 
SIP, the permit conditions must require a RH SIP revision in order for 
the BART emissions limits to be revised. However, the CDs themselves 
are not adequate to ensure enforceable emissions limits remain in place 
for purposes of BART for several reasons. Courts and parties to the 
litigation can change the terms of CDs without revising the RH SIP or 
notifying the public that a BART requirement is being altered. 
Additionally, CDs are not effective forever. The terms of a CD are 
subsumed into a permit, which could be altered during the permitting 
process without revising the RH SIP or notifying the public that a BART 
requirement is being altered. Absent some express correlation to the LA 
RH SIP, the emissions limits required under the CDs are not adequately 
enforceable to ensure continued compliance with BART. Moreover, if the 
emissions limits in a CD are relied upon to meet BART, the RH SIP must 
contain sufficient technical information to ensure compliance with 
BART.
    Comment 12: The commenter agrees that the LA RH SIP is deficient 
because elements of the State's BART evaluations and determinations are 
not fully adequate to meet the federal requirements. Additionally, as a 
result of the deficiencies related to BART, the LTS and RPGs are not 
fully adequate to meet federal requirements.
    Response 12: We acknowledge the commenter's support for those 
aspects of this action. We note that, as indicated in the above 
responses to comments from the LDEQ regarding Rhodia, some but not all 
of the deficiencies were addressed by the LDEQ's comments although the 
emissions limits for Rhodia must be included in the SIP.
    Comment 13: Insofar as the EPA proposed to find that elements of 
the SIP submittal fully satisfy the RHR requirements, the commenter 
supports the EPA's proposal.
    Response 13: We acknowledge the commenter's support for those 
aspects of this action.

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, the EPA's role is to act on state law as 
meeting Federal requirements and does not impose additional 
requirements beyond those imposed by state law.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under Executive Orders 12866 and 13563 
(76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., 
because this SIP action under section 110 of the CAA will not in-and-of 
itself create any new information collection burdens but simply 
approves or disapproves certain State requirements for inclusion into 
the SIP. Burden is defined at 5 CFR 1320.3(b).

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions. For purposes of assessing the impacts of today's rule on 
small entities, small entity is defined as: (1) A small business as 
defined by the Small Business Administration's (SBA) regulations at 13 
CFR 121.201; (2) a small governmental jurisdiction that is a government 
of a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of today's rule on small 
entities, I certify that this action will not have a significant impact 
on a substantial number of small entities. This rule does not impose 
any requirements or create impacts on small entities. This SIP action 
under section 110 of the CAA will not in-and-of itself create any new 
requirements but simply approves or disapproves certain State 
requirements for inclusion into the SIP. Accordingly, it affords no 
opportunity for the EPA to fashion for small entities less burdensome 
compliance or reporting requirements or timetables or exemptions from 
all or part of the rule. The fact that the CAA prescribes that various 
consequences (i.e., emission limitations) may or will flow from this 
action does not mean that the EPA either can or must conduct a 
regulatory flexibility analysis for this action. Therefore, this action 
will not have a significant economic impact on a substantial number of 
small entities.

[[Page 39434]]

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for State, local, or tribal governments or the private 
sector. The EPA has determined that the disapproval action does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector. This action merely approves or 
disapproves pre-existing requirements under State or local law, and 
imposes no new requirements. Accordingly, no additional costs to State, 
local, or tribal governments, or to the private sector, result from 
this action.

E. Executive Order 13132, Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires the EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This action does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132, because it merely approves or 
disapproves certain State requirements for inclusion into the SIP and 
does not alter the relationship or the distribution of power and 
responsibilities established in the CAA. Thus, Executive Order 13132 
does not apply to this action.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP 
submittals the EPA is approving or disapproving would not apply in 
Indian country located in the state, and the EPA notes that it will not 
impose substantial direct costs on tribal governments or preempt tribal 
law. Thus, Executive Order 13175 does not apply to this action.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 (62 FR 19885, April 23, 
1997) as applying only to those regulatory actions that concern health 
or safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
action is not subject to Executive Order 13045 because it is not an 
economically significant regulatory action based on health or safety 
risks subject to Executive Order 13045 . This SIP action under section 
110 of the CAA will not in-and-of itself create any new regulations but 
simply approves or disapproves certain State requirements for inclusion 
into the SIP.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution or Use

    This action is not subject to Executive Order 13211 (66 FR 28355, 
May 22, 2001) because it is not a significant regulatory action under 
Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272 note) directs the EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. NTTAA directs the EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    The EPA believes that this action is not subject to requirements of 
Section 12(d) of NTTAA because application of those requirements would 
be inconsistent with the CAA.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    The EPA lacks the discretionary authority to address environmental 
justice in this action. In reviewing SIP submissions, the EPA's role is 
to approve or disapprove state choices, based on the criteria of the 
CAA. Accordingly, this action merely approves or disapproves certain 
State requirements for inclusion into the SIP under section 110 of the 
CAA and will not in-and-of itself create any new requirements. 
Accordingly, it does not provide the EPA with the discretionary 
authority to address, as appropriate, disproportionate human health or 
environmental effects, using practicable and legally permissible 
methods, under Executive Order 12898.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. The EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective on August 6, 2012.

L. Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by September 4, 2012. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements. See CAA section 307(b)(2).

[[Page 39435]]

List of Subjects in 40 CFR Part 52

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

    Dated: June 15, 2012.
Samuel Coleman,
Acting Regional Administrator, Region 6.

    Therefore, 40 CFR part 52, as amended June 7, 2012, at 77 FR 33657 
and effective August 6, 2012, is further amended as follows:

PART 52--[AMENDED]

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

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

0
2. Amend Sec.  52.985 by adding paragraphs (b) and (c) to read as 
follows:

Sec.  52.985  Visibility protection.

* * * * *
    (b) The regional haze plan submitted by Louisiana on June 13, 2008, 
includes measures for meeting the requirements of: 40 CFR 51.308(d), 
for the core requirements for regional haze plans, except for the 
requirements of 40 CFR 51.308(d)(3); 40 CFR 51.308(f), for the 
commitment to submit comprehensive periodic revisions of regional haze 
plans; 40 CFR 51.308(g), for the commitment to submit periodic reports 
describing progress towards the reasonable progress goals; 40 CFR 
51.308(h), for the commitment to conduct periodic determinations of the 
adequacy of the existing regional haze plan; and 40 CFR 51.308(i), for 
coordination with state and Federal Land Managers. EPA has given 
partial limited approval to the plan provisions addressing these 
requirements.
    (c) The regional haze plan submitted by Louisiana on June 13, 2008, 
does not include fully approvable measures for meeting the requirements 
of 40 CFR 51.308(d)(3), long-term strategy for regional haze as it 
relies on deficient non-electric generating units Best Available 
Retrofit
    Technology (BART) analyses; and 40 CFR 51.308(e), BART requirements 
for regional haze visibility impairment with respect to emissions of 
visibility impairing pollutants from four non-electric generating 
units. EPA has given partial disapproval to the plan provisions 
addressing these requirements.

[FR Doc. 2012-15729 Filed 7-2-12; 8:45 am]
BILLING CODE P
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