[Federal Register Volume 77, Number 42 (Friday, March 2, 2012)]
[Proposed Rules]
[Pages 12770-12784]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-4991]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R07-OAR-2012-0158; FRL-9639-6]


Approval, Disapproval and Promulgation of Implementation Plans; 
Nebraska; Regional Haze State Implementation Plan; Federal 
Implementation Plan for Best Available Retrofit Technology 
Determination

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to partially approve and partially disapprove 
a revision to the Nebraska State Implementation Plan (SIP) submitted by 
the State of Nebraska through the Nebraska Department of Environmental 
Quality (NDEQ) on July 13, 2011 that addresses regional haze for the 
first implementation period. This revision was submitted to address the 
requirements of the Clean Air Act (CAA or Act) and our rules that 
require States to prevent any future and remedy any existing man-made 
impairment of visibility in mandatory Class I areas caused by emissions 
of air pollutants from numerous sources located over a wide geographic 
area (also referred to as the ``regional haze program''). States are 
required to ensure reasonable progress toward the national goal of 
achieving natural visibility conditions in Class I areas. EPA is 
proposing to approve a portion of this SIP revision as meeting certain 
requirements of the regional haze program and to partially approve and 
partially disapprove those portions addressing the requirements for 
best available retrofit technology (BART) and the long-term strategy 
(LTS). EPA is proposing a Federal Implementation Plan (FIP) relying on 
the Transport Rule to satisfy BART for sulfur dioxide (SO<INF>2</INF>) 
at one source to address these issues.

DATES: Comments. Written comments must be received via the methods 
given in the Instructions for Comment Submittal section on or before 
April 2, 2012.

ADDRESSES: Instructions for Comment Submittal. Submit your comments, 
identified by Docket No. EPA-R07-OAR-2012-0158, by one of the following 
methods:
    1. Federal e-Rulemaking Portal: http://www.regulations.gov. Follow 
the online instructions for submitting comments.
    2. Email: <a href="/cdn-cgi/l/email-protection#60170f0c060512130205120705124e0308120913200510014e070f16"><span class="__cf_email__" data-cfemail="42352d2e242730312027302527306c212a302b31022732236c252d34">[email protected]</span></a>.
    3. Mail: Ms. Chrissy Wolfersberger, Air Planning and Development 
Branch, U.S. Environmental Protection Agency, Region 7, 901 N. 5th 
Street, Kansas City, Kansas 66101.
    4. Hand or Courier Delivery: U.S. Environmental Protection Agency, 
Region 7, 901 N. 5th Street, Kansas City, Kansas 66101; attention: 
Chrissy Wolfersberger. Such deliveries are accepted only between the 
hours of 8 a.m. and 5 p.m. weekdays, excluding Federal holidays. 
Special arrangements should be made for deliveries of boxed 
information.
    5. Fax: (913) 551-7864 (please alert the individual listed in the 
FOR FURTHER INFORMATION CONTACT section if you are faxing comments).
    EPA's policy is that all comments received will be included in the 
public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or email. The 
www.regulations.gov web site is an ``anonymous access'' system, which 
means we will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an email comment 
directly to EPA without going through www.regulations.gov your email 
address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, we recommend that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If we cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, we may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the Air Planning and 
Development Branch, U.S. Environmental Protection Agency, Region 7, 901 
N. 5th Street, Kansas City, Kansas 66101. EPA requests that if at all 
possible, you contact the individual listed in the FOR FURTHER 
INFORMATION CONTACT section to view the hard copy of the docket. You 
may view the hard copy of the docket Monday through Friday, 8 a.m. to 5 
p.m. excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Ms. Chrissy Wolfersberger, Air 
Planning and Development Branch, U.S. Environmental Protection Agency, 
Region 7, 901 N. 5th Street Kansas City, Kansas 66101, or by telephone 
at (913) 551-7864.

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,'' 
``us,'' or ``our'' is used, we mean the EPA.

Table of Contents

I. What is the background for EPA's proposed actions?
    A. The Regional Haze Problem
    B. Requirements of the CAA and EPA's Regional Haze Rule (RHR)
    C. Roles of Agencies in Addressing Regional Haze
II. What are the requirements for regional haze SIPs?
    A. The CAA and the Regional Haze Rule
    B. Determination of Baseline, Natural, and Current Visibility 
Conditions
    C. Determination of Reasonable Progress Goals
    D. Best Available Retrofit Technology
    E. Long Term Strategy
    F. Coordinating Regional Haze and Reasonably Attributable 
Visibility Impairment Long-Term Strategy
    G. Monitoring Strategy and Other SIP Requirements

[[Page 12771]]

    H. Consultation With States and Federal Land Managers
III. Our Analysis of Nebraska's Regional Haze SIP
    A. Public Notice
    B. Affected Class I Areas
    C. Baseline and Natural Visibility Conditions
    D. Reasonable Progress Goals
    E. Long-Term Strategy
    a. Consultation on Other States' RPGs
    F. Best Available Retrofit Technology
    a. BART-Eligible Sources
    b. BART-Subject Sources
    c. Particulate Matter (PM) Evaluation
    d. BART Determination for Omaha Public Power District (OPPD) 
Nebraska City Station (NCS) Unit 1
    e. BART Determination for Nebraska Public Power District (NPPD) 
Gerald Gentleman Station (GGS) Units 1 and 2
    f. BART Summary and Enforceability
    G. Federal Implementation Plan (FIP) To Address SO<INF>2</INF> 
BART for GGS and LTS
    H. Coordinating Regional Haze and RAVI
    I. Monitoring Strategy
    J. Emissions Inventory
    K. Federal Land Manager (FLM) Consultation
    L. Periodic SIP Revisions and Five Year Progress Report
IV. Proposed Actions
V. Statutory and Executive Order Reviews

I. What is the background for EPA's proposed actions?

A. The Regional Haze Problem

    Regional haze is visibility impairment that is produced by a 
multitude of sources and activities which are located across a broad 
geographic area and emit fine particles (PM<INF>2.5</INF>) (e.g., 
sulfates, nitrates, organic carbon, elemental carbon, and soil dust) 
and their precursors (e.g., SO<INF>2</INF>, nitrogen oxides 
(NO<INF>X</INF>), and in some cases, ammonia (NH<INF>3</INF>) and 
volatile organic compounds (VOCs)). Fine particle precursors react in 
the atmosphere to form PM<INF>2.5</INF> (e.g., sulfates, nitrates, 
organic carbon, elemental carbon, and soil dust), which also impair 
visibility by scattering and absorbing light. Visibility impairment 
reduces the clarity, color, and visible distance that one can see. 
PM<INF>2.5</INF> also can cause serious health effects and mortality in 
humans and contributes to environmental effects such as acid deposition 
and eutrophication.\1\
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    \1\ Eutrophication is defined as excessive richness of nutrients 
in a lake or other body of water, frequently due to runoff from the 
land, which causes a dense growth of plant life and death of animal 
life from lack of oxygen.
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    Data from the existing visibility monitoring network, the 
``Interagency Monitoring of Protected Visual Environments'' (IMPROVE) 
monitoring network, show that visibility impairment caused by air 
pollution occurs virtually all the time at most national park and 
wilderness areas. The average visual range \2\ in many Class I areas 
(i.e., national parks and memorial parks, wilderness areas, and 
international parks meeting certain size criteria) in the western 
United States is 100-150 kilometers, or about one-half to two-thirds of 
the visual range that would exist without anthropogenic air pollution. 
64 FR 35714, 35715 (July 1, 1999). In most of the eastern Class I areas 
of the United States, the average visual range is less than 30 
kilometers, or about one-fifth of the visual range that would exist 
under estimated natural conditions. Id.
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    \2\ Visual range is the greatest distance, in kilometers or 
miles, at which a dark object can be viewed against the sky.
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B. Requirements of the CAA and EPA's Regional Haze Rule (RHR)

    In section 169A of the 1977 Amendments to the CAA, Congress created 
a program for protecting visibility in the nation's national parks and 
wilderness areas. This section of the CAA establishes as a national 
goal the ``prevention of any future, and the remedying of any existing, 
impairment of visibility in mandatory Class I Federal areas \3\ which 
impairment results from manmade air pollution.'' CAA Sec.  169A(a)(1). 
The terms ``impairment of visibility'' and ``visibility impairment'' 
are defined in the Act to include a reduction in visual range and 
atmospheric discoloration. CAA Sec.  169A(g)(6). In 1980, we 
promulgated regulations to address visibility impairment in Class I 
areas that is ``reasonably attributable'' to a single source or small 
group of sources, i.e., ``reasonably attributable visibility 
impairment'' (RAVI). 45 FR 80084 (December 2, 1980). These regulations 
represented the first phase in addressing visibility impairment. We 
deferred action on regional haze that emanates from a variety of 
sources until monitoring, modeling and scientific knowledge about the 
relationships between pollutants and visibility impairment were 
improved.
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    \3\ Areas designated as mandatory Class I Federal areas consist 
of national parks exceeding 6000 acres, wilderness areas and 
national memorial parks exceeding 5000 acres, and all international 
parks that were in existence on August 7, 1977. See CAA section 
162(a). In accordance with section 169A of the CAA, EPA, in 
consultation with the Department of Interior, promulgated a list of 
156 areas where visibility is identified as an important value. See 
44 FR 69122, November 30, 1979. The extent of a mandatory Class I 
area includes subsequent changes in boundaries, such as park 
expansions. CAA section 162(a). Although states and tribes may 
designate as Class I additional areas which they consider to have 
visibility as an important value, the requirements of the visibility 
program set forth in section 169A of the CAA apply only to 
``mandatory Class I Federal areas.'' Each mandatory Class I Federal 
area is the responsibility of a ``Federal Land Manager'' (FLM). See 
CAA section 302(i). When we use the term ``Class I area'' in this 
action, we mean a ``mandatory Class I Federal area.''
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    Congress added section 169B to the CAA in 1990 to address haze 
issues, and we promulgated regulations addressing regional haze in 
1999. 64 FR 35714 (July 1, 1999), codified at 40 CFR part 51, subpart 
P. The regional haze rule (RHR) revised the existing visibility 
regulations to integrate into the regulations provisions addressing RH 
impairment and established a comprehensive visibility protection 
program for Class I areas. The requirements for regional haze, found at 
40 CFR 51.308 and 51.309, are included in our visibility protection 
regulations at 40 CFR 51.300-309. Some of the main elements of the 
regional haze requirements are summarized in section II. The 
requirement to submit a regional haze SIP applies to all 50 States, the 
District of Columbia and the Virgin Islands. States were required to 
submit the first implementation plan addressing visibility impairment 
no later than December 17, 2007. 40 CFR 51.308(b).

C. Roles of Agencies in Addressing Regional Haze

    Successful implementation of the regional haze program will require 
long-term regional coordination among States, tribal governments and 
various Federal agencies. As noted above, pollution affecting the air 
quality in Class I areas can be transported over long distances, even 
hundreds of kilometers. Therefore, to address effectively the problem 
of visibility impairment in Class I areas, States need to develop 
strategies in coordination with one another, taking into account the 
effect of emissions from one jurisdiction on the air quality in 
another.
    Because the pollutants that lead to haze can originate from sources 
located across broad geographic areas, we have encouraged the States 
and tribes across the United States to address visibility impairment 
from a regional perspective. Five regional planning organizations 
(RPOs) were developed to address regional haze and related issues. The 
RPOs first evaluated technical information to better understand how 
their States and tribes impact Class I areas across the country, and 
then pursued the development of regional strategies to reduce emissions 
of PM and other pollutants that cause haze.
    The State of Nebraska participated in the planning efforts of the 
Central Regional Air Planning Association (CENRAP), which is affiliated 
with the

[[Page 12772]]

Central States Air Resource Agencies (CENSARA). CENRAP is an 
organization of States, tribes, Federal agencies and other interested 
parties that identifies visibility issues and develops strategies to 
address them. CENRAP is one of the five RPOs across the U.S. and 
includes the States and tribal areas of Nebraska, Kansas, Oklahoma, 
Texas, Minnesota, Iowa, Missouri, Arkansas, and Louisiana. States were 
also required by 40 CFR 51.308(i) to coordinate with FLMs during the 
development of the State's strategies to address haze. FLMs include the 
U.S. Fish and Wildlife Service, the U.S. Forest Service, and the 
National Park Service.

II. What are the requirements for regional haze SIPs?

    The following is a summary and basic explanation of the regulations 
covered under the RHR. See 40 CFR 51.308 for a complete listing of the 
regulations under which this SIP was evaluated.

A. The CAA and the Regional Haze Rule

    CAA sections 110(l) and 110(a)(2) require revisions to a SIP to be 
adopted by a State after reasonable notice and public hearing. EPA has 
promulgated specific procedural requirements for SIP revisions in 40 
CFR Part 51, subpart F. These requirements include publication of 
notices by prominent advertisement in the relevant geographic area of a 
public hearing on proposed revisions, at least a 30-day public comment 
period, and the opportunity for a public hearing, and that the State, 
in accordance with its laws, submit the revision to the EPA for 
approval. Specific information on Nebraska's rulemaking, regional haze 
SIP development and public information process is included in Chapter 
3, and Appendix 3, of the State of Nebraska regional haze SIP, which is 
included in the docket of this proposed rulemaking.
    Regional haze SIPs must assure reasonable progress towards the 
national goal of achieving natural visibility conditions in Class I 
areas. Section 169A of the CAA and our implementing regulations require 
States to establish long-term strategies for making reasonable progress 
toward meeting this goal. Implementation plans must also give specific 
attention to certain stationary sources that were in existence on 
August 7, 1977, but were not in operation before August 7, 1962, and 
require these sources, where appropriate, to install BART controls for 
the purpose of eliminating or reducing visibility impairment. The 
specific regional haze SIP requirements are discussed in further detail 
below.

B. Determination of Baseline, Natural, and Current Visibility 
Conditions

    The RHR establishes the deciview (dv) as the principal metric for 
measuring visibility. See 70 FR 39104. This visibility metric expresses 
uniform changes in the degree of haze in terms of common increments 
across the entire range of visibility conditions, from pristine to 
extremely hazy conditions. Visibility expressed in deciviews is 
determined by using air quality measurements to estimate light 
extinction and then transforming the value of light extinction using a 
logarithmic function. The deciview is a more useful measure for 
tracking progress in improving visibility than light extinction itself 
because each deciview change is an equal incremental change in 
visibility perceived by the human eye. Most people can detect a change 
in visibility of one deciview.\4\
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    \4\ The preamble to the RHR provides additional details about 
the deciview. 64 FR 35714, 35725 (July 1, 1999).
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    The deciview is used in expressing Reasonable Progress Goals (RPGs) 
(which are interim visibility goals towards meeting the national 
visibility goal), defining baseline, current, and natural conditions, 
and tracking changes in visibility. The regional haze SIPs must contain 
measures that ensure ``reasonable progress'' toward the national goal 
of preventing and remedying visibility impairment in Class I areas 
caused by anthropogenic air pollution by reducing anthropogenic 
emissions that cause haze. The national goal is a return to natural 
conditions, i.e., anthropogenic sources of air pollution would no 
longer impair visibility in Class I areas.
    To track changes in visibility over time at each of the 156 Class I 
areas covered by the visibility program (40 CFR 81.401-437), and as 
part of the process for determining reasonable progress, States must 
calculate the degree of existing visibility impairment at each Class I 
area at the time of each regional haze SIP submittal and periodically 
review progress every five years midway through each 10-year 
implementation period. To do this, the RHR requires States to determine 
the degree of impairment (in deciviews) for the average of the 20 
percent least impaired (``best'') and 20 percent most impaired 
(``worst'') visibility days over a specified time period at each of 
their Class I areas. In addition, States must also develop an estimate 
of natural visibility conditions for the purpose of comparing progress 
toward the national goal. Natural visibility is determined by 
estimating the natural concentrations of pollutants that cause 
visibility impairment and then calculating total light extinction based 
on those estimates. We have provided guidance to States regarding how 
to calculate baseline, natural and current visibility conditions.\5\
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    \5\ Guidance for Estimating Natural Visibility Conditions Under 
the Regional Haze Rule, September 2003, EPA-454/B-03-005, available 
at http://www.epa.gov/ttncaaa1/t1/memoranda/rh_envcurhr_gd.pdf, 
(hereinafter referred to as ``our 2003 Natural Visibility 
Guidance''); and Guidance for Tracking Progress Under the Regional 
Haze Rule, (EPA-454/B-03-004, September 2003, available at http://www.epa.gov/ttncaaa1/t1/memoranda/rh_tpurhr_gd.pdf, (hereinafter 
referred to as our ``2003 Tracking Progress Guidance'').
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    For the first regional haze SIPs that were due by December 17, 
2007, ``baseline visibility conditions'' were the starting points for 
assessing ``current'' visibility impairment. Baseline visibility 
conditions represent the degree of visibility impairment for the 20 
percent least impaired days and 20 percent most impaired days for each 
calendar year from 2000 to 2004. Using monitoring data for 2000 through 
2004, States are required to calculate the average degree of visibility 
impairment for each Class I area, based on the average of annual values 
over the five-year period. The comparison of initial baseline 
visibility conditions to natural visibility conditions indicates the 
amount of improvement necessary to attain natural visibility, while the 
future comparison of baseline conditions to the then current conditions 
will indicate the amount of progress made. In general, the 2000-2004 
baseline period is considered the time from which improvement in 
visibility is measured.

C. Determination of Reasonable Progress Goals

    The vehicle for ensuring continuing progress towards achieving the 
natural visibility goal is the submission of a series of regional haze 
SIPs from the States that establish two RPGs (i.e., two distinct goals, 
one for the ``best'' and one for the ``worst'' days) for every Class I 
area for each (approximately) 10-year implementation period. See 70 FR 
3915; see also 64 FR 35714. The RHR does not mandate specific 
milestones or rates of progress, but instead calls for States to 
establish goals that provide for ``reasonable progress'' toward 
achieving natural (i.e., ``background'') visibility conditions. In 
setting RPGs, States must provide for an improvement in visibility for 
the most impaired days over the (approximately) 10-year period of the 
SIP, and ensure no degradation in visibility for the least impaired 
days over the same period. Id.

[[Page 12773]]

    States have significant discretion in establishing RPGs, but are 
required to consider the following factors established in section 169A 
of the CAA and in our RHR at 40 CFR 51.308(d)(1)(i)(A): (1) The costs 
of compliance; (2) the time necessary for compliance; (3) the energy 
and non-air quality environmental impacts of compliance; and (4) the 
remaining useful life of any potentially affected sources. States must 
demonstrate in their SIPs how these factors are considered when 
selecting the RPGs for the best and worst days for each applicable 
Class I area. States have considerable flexibility in how they take 
these factors into consideration, as noted in our reasonable progress 
guidance.\6\ In setting the RPGs, States must also consider the rate of 
progress needed to reach natural visibility conditions by 2064 
(referred to hereafter as the ``uniform rate of progress'' or the 
``glidepath'') and the emission reduction measures needed to achieve 
that rate of progress over the 10-year period of the SIP. Uniform 
progress towards achievement of natural conditions by the year 2064 
represents a rate of progress, which States are to use for analytical 
comparison to the amount of progress they expect to achieve. In setting 
RPGs, each State with one or more Class I areas (``Class I State'') 
must also consult with potentially ``contributing States,'' i.e., other 
nearby States with emission sources that may be affecting visibility 
impairment at the Class I State's areas. 40 CFR 51.308(d)(1)(iv).
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    \6\ Guidance for Setting Reasonable Progress Goals under the 
Regional Haze Program, June 1, 2007, memorandum from William L. 
Wehrum, Acting Assistant Administrator for Air and Radiation, to EPA 
Regional Administrators, EPA Regions 1-10 (pp. 4-2, 5-1).
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    States without Class I areas are required to submit regional haze 
SIPs to address their contribution to visibility impairment. As per the 
previous discussion in this proposed rulemaking, the ability of the 
long range transport of pollutants to affect visibility conditions in 
areas makes it imperative that each State evaluate how emissions from 
within its borders affect visibility impairment in Class I areas in 
other States.

D. Best Available Retrofit Technology

    Section 169A of the CAA directs States to evaluate the use of 
retrofit controls at certain larger, often uncontrolled, older 
stationary sources with the potential to emit greater than 250 tons or 
more of any pollutant in order to address visibility impacts from these 
sources. Specifically, section 169A(b)(2)(A) of the Act requires States 
to revise their SIPs to contain such measures as may be necessary to 
make reasonable progress towards the natural visibility goal, including 
a requirement that certain categories of existing major stationary 
sources \7\ built between 1962 and 1977 procure, install, and operate 
the ``best available retrofit technology'' as determined by the State 
or us in the case of a plan promulgated under section 110(c) of the 
CAA. Under the RHR, States are directed to conduct BART determinations 
for such ``BART-eligible'' sources that may be anticipated to cause or 
contribute to any visibility impairment in a Class I area. Rather than 
requiring source-specific BART controls, States also have the 
flexibility to adopt an emissions trading program or other alternative 
program as long as the alternative provides greater reasonable progress 
towards improving visibility than BART.
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    \7\ The set of ``major stationary sources'' potentially subject 
to BART are listed in CAA section 169A(g)(7).
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    We promulgated regulations addressing regional haze in 1999, 64 FR 
35714 (July 1, 1999), codified at 40 CFR part 51, subpart P.\8\ These 
regulations require all States to submit implementation plans that, 
among other measures, contain either emission limits representing BART 
for certain sources constructed between 1962 and 1977, or alternative 
measures that provide for greater reasonable progress than BART. 40 CFR 
51.308(e).
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    \8\ In American Corn Growers Ass'n v. EPA, 291 F.3d 1 (DC Cir. 
2002), the U.S Court of Appeals for the District of Columbia Circuit 
issued a ruling vacating and remanding the BART provisions of the 
regional haze rule. In 2005, we issued BART guidelines to address 
the court's ruling in that case. See 70 FR 39104 (July 6, 2005).
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    On July 6, 2005, we published the Guidelines for BART 
Determinations Under the Regional Haze Rule at Appendix Y to 40 CFR 
Part 51 (``BART Guidelines'') to assist States in determining which of 
their sources should be subject to the BART requirements and in 
determining appropriate emission limits for each applicable source. 70 
FR 39104. In making a BART determination for a fossil fuel-fired 
electric generating plant with a total generating capacity in excess of 
750 megawatts, a State must use the approach set forth in the BART 
Guidelines. A State is encouraged, but not required, to follow the BART 
Guidelines in making BART determinations for other types of sources.
    The process of establishing BART emission limitations can be 
logically broken down into three steps: first, States identify those 
sources which meet the definition of ``BART-eligible source'' set forth 
in 40 CFR 51.301;\9\ second, States determine whether such sources 
``emits any air pollutant which may reasonably be anticipated to cause 
or contribute to any impairment of visibility in any such area'' (a 
source which fits this description is ``subject to BART,'') and; third, 
for each source subject to BART, States then identify the appropriate 
type and the level of control for reducing emissions.
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    \9\ BART-eligible sources are those sources that have the 
potential to emit 250 tons or more of a visibility-impairing air 
pollutant, were put in place between August 7, 1962 and August 7, 
1977, and whose operations fall within one or more of 26 
specifically listed source categories.
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    States must address all visibility-impairing pollutants emitted by 
a source in the BART determination process. The most significant 
visibility impairing pollutants are SO<INF>2</INF>, NO<INF>X</INF>, and 
PM. States should use their best judgment in determining whether 
volatile organic compounds (VOC) or ammonia compounds impair visibility 
in Class I areas.
    Under the BART Guidelines, States may select an exemption threshold 
value for their BART modeling, below which a BART-eligible source would 
not be expected to cause or contribute to visibility impairment in any 
Class I area. The State must document this exemption threshold value in 
the SIP and must state the basis for its selection of that value. Any 
source with emissions that model above the threshold value would be 
subject to a BART determination review. The BART Guidelines acknowledge 
varying circumstances affecting different Class I areas. States should 
consider the number of emission sources affecting the Class I areas at 
issue and the magnitude of the individual sources' impacts. Any 
exemption threshold set by the State should not be higher than 0.5 dv 
(70 FR 39161).
    In their SIPs, States must identify potential BART sources, 
described as ``BART-eligible sources'' in the RHR, and document their 
BART control determination analyses. The term ``BART-eligible source'' 
used in the BART Guidelines means the collection of individual emission 
units at a facility that together comprises the BART-eligible source. 
In making BART determinations, section 169A(g)(2) of the CAA requires 
that States consider the following factors: (1) The costs of 
compliance; (2) the energy and non-air quality environmental impacts of 
compliance; (3) any existing pollution control technology in use at the 
source; (4) the remaining useful life of the

[[Page 12774]]

source; and (5) the degree of improvement in visibility which may 
reasonably be anticipated to result from the use of such technology. 
States are free to determine the weight and significance to be assigned 
to each factor. See 40 CFR 51.308(e)(1)(ii).
    A regional haze SIP must include source-specific BART emission 
limits and compliance schedules for each source subject to BART. Once a 
State has made its BART determination, the BART controls must be 
installed and in operation as expeditiously as practicable, but no 
later than five years after the date of our approval of the regional 
haze SIP. See CAA section 169(g)(4) and 40 CFR 51.308(e)(1)(iv). In 
addition to what is required by the RHR, general SIP requirements 
mandate that the SIP must also include all regulatory requirements 
related to monitoring, recordkeeping, and reporting for the BART 
controls on the source. See CAA section 110(a).
    As noted above, the RHR allows States to implement an alternative 
program in lieu of BART so long as the alternative program can be 
demonstrated to achieve greater reasonable progress toward the national 
visibility goal than would BART. Under regulations issued in 2005 
revising the regional haze program, EPA made just such a demonstration 
for the Clean Air Interstate Rule (CAIR). See 70 FR 39104 (July 6, 
2005). EPA's regulations provide that States participating in the CAIR 
cap-and trade program under 40 CFR Part 96 pursuant to an EPA-approved 
CAIR SIP or which remain subject to the CAIR FIP in 40 CFR Part 97 need 
not require affected BART-eligible electric generating units (EGUs) to 
install, operate, and maintain BART for emissions of SO<INF>2</INF> and 
NO<INF>X.</INF> See 40 CFR 51.308(e)(4). Because CAIR did not address 
direct emissions of PM, States were still required to conduct a BART 
analysis for PM emissions from EGUs subject to BART for that pollutant. 
Challenges to CAIR, however, resulted in the remand of the rule to EPA. 
See North Carolina v. EPA, 550 F.3d 1176 (DC Cir. 2008). EPA issued a 
new rule in 2011 to address the interstate transport of NO<INF>X</INF> 
and SO<INF>2</INF> in the eastern United States. See 76 FR 48208 
(August 8, 2011) (``the Transport Rule,'' also known as the Cross-State 
Air Pollution Rule). On December 30, 2011, EPA proposed to find 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. 76 FR 82219. Based on this 
proposed finding, EPA also proposed to revise the RHR to allow States 
to substitute participation in the trading programs under the Transport 
Rule for source-specific BART. EPA has not taken final action on that 
rule. Also on December 30, 2011, the Circuit Court of Appeals for the 
District of Columbia issued an order addressing the status of the 
Transport Rule and CAIR in response to motions filed by numerous 
parties seeking a stay of the Transport Rule pending judicial review. 
In that order, the DC Circuit stayed the Transport Rule pending the 
court's resolutions of the petitions for review of that rule in EME 
Homer Generation, L.P. v. EPA (No. 11-1302 and consolidated cases). The 
court also indicated that EPA is expected to continue to administer the 
CAIR in the interim until the court rules on the petitions for review 
of the Transport Rule.

E. Long-Term Strategy (LTS)

    Consistent with the requirement in section 169A(b) of the CAA that 
States include in their regional haze SIP a ten to fifteen year 
strategy for making reasonable progress, section 51.308(d)(3) of the 
RHR requires that States include a LTS in their regional haze SIPs. The 
LTS is the compilation of all control measures a State will use during 
the implementation period of the specific SIP submittal to meet any 
applicable RPGs. The LTS must include ``enforceable emissions 
limitations, compliance schedules, and other measures as necessary to 
achieve the reasonable progress goals'' for all Class I areas within, 
or affected by emissions from, the State. 40 CFR 51.308(d)(3).
    When a State's emissions are reasonably anticipated to cause or 
contribute to visibility impairment in a Class I area located in 
another State, the RHR requires the impacted State to coordinate with 
the contributing States in order to develop coordinated emissions 
management strategies. 40 CFR 51.308(d)(3)(i). In such cases, the 
contributing State must demonstrate that it has included in its SIP all 
measures necessary to obtain its share of the emission reductions 
needed to meet the RPGs for the Class I area. The RPOs have provided 
forums for significant interstate consultation, but additional 
consultations between States may be required to sufficiently address 
interstate visibility issues. This is especially true where two States 
belong to different RPOs.
    States should consider all types of anthropogenic sources of 
visibility impairment in developing their LTS, including stationary, 
minor, mobile, and area sources. At a minimum, States must describe how 
each of the following seven factors listed below are taken into account 
in developing their LTS: (1) Emission reductions due to ongoing air 
pollution control programs; (2) measures to mitigate the impacts of 
construction activities; (3) emissions limitations and schedules for 
compliance to achieve the RPG; (4) source retirement and replacement 
schedules; (5) smoke management techniques for agricultural and 
forestry management purposes including plans as currently exist within 
the State for these purposes; (6) enforceability of emissions 
limitations and control measures; (7) the anticipated net effect on 
visibility due to projected changes in point, area, and mobile source 
emissions over the period addressed by the LTS. 40 CFR 51.308(d)(3)(v).

F. Coordinating Regional Haze and Reasonably Attributable Visibility 
Impairment Long-Term Strategy

    As part of the RHR, EPA revised 40 CFR 51.306(c), regarding the LTS 
for RAVI, to require that the RAVI plan must provide for a periodic 
review and SIP revision not less frequently than every three years 
until the date of submission of the State's first plan addressing 
regional haze visibility impairment in accordance with 40 CFR 51.308(b) 
and (c). The State must revise its plan to provide for review and 
revision of a coordinated LTS for addressing RAVI and regional haze on 
or before this date. It must also submit the first such coordinated LTS 
with its first regional haze SIP. Future coordinated LTSs, and periodic 
progress reports evaluating progress toward RPGs, must be submitted 
consistent with the schedule for SIP submission and periodic progress 
reports set forth in 40 CFR 51.308(f) and 51.308(g), respectively. The 
periodic review of a State's LTS must be submitted to EPA as a SIP 
revision and report on both regional haze and RAVI impairment.

G. Monitoring Strategy and Other SIP Requirements

    Section 51.308(d)(4) of the RHR includes the requirement for a 
monitoring strategy for measuring, characterizing, and reporting of 
visibility impairment that is representative of all Class I areas 
within the State. The strategy must be coordinated with the monitoring 
strategy required in section 51.305 for RAVI. Compliance with this 
requirement may be met through ``participation'' in the Interagency 
Monitoring of Protected Visual Environments (IMPROVE) network, i.e., 
review and use of monitoring data from the network. The monitoring 
strategy is due with the first regional haze SIP, and

[[Page 12775]]

it must be reviewed every five (5) years. The monitoring strategy must 
also provide for additional monitoring sites if the IMPROVE network is 
not sufficient to determine whether RPGs will be met.
    The SIP must also provide for the following:
    <bullet> Procedures for using monitoring data and other information 
in a State with mandatory Class I areas to determine the contribution 
of emissions from within the State to haze visibility impairment at 
Class I areas both within and outside the State;
    <bullet> For a State with no mandatory Class I areas, procedures 
for using monitoring data and other information to determine the 
contribution of emissions from within the State to regional haze 
visibility impairment at Class I areas in other States;
    <bullet> Reporting of all visibility monitoring data to the 
Administrator at least annually for each Class I area in the State, and 
where possible, in electronic format;
    <bullet> Developing a statewide inventory of emissions of 
pollutants that are reasonably anticipated to cause or contribute to 
visibility impairment in any Class I area. The inventory must include 
emissions for a baseline year, emissions for the most recent year for 
which data are available, and estimates of future projected emissions, 
along with a commitment to update the inventory periodically; and
    <bullet> Other elements, including reporting, recordkeeping, and 
other measures necessary to assess and report on visibility.
    The RHR requires control strategies to cover an initial 
implementation period extending to the year 2018, with a comprehensive 
reassessment and revision of those strategies, as appropriate, every 
ten years thereafter. Periodic SIP revisions must meet the core 
requirements of section 51.308(d) with the exception of BART. The 
requirement to evaluate sources for BART applies only to the first 
regional haze SIP. Facilities subject to BART must continue to comply 
with the BART provisions of section 51.308(e), as noted above. Periodic 
SIP revisions will assure that the statutory requirement of reasonable 
progress will continue to be met.

H. Consultation With States and Federal Land Managers

    The RHR requires that States consult with other States and FLMs 
before adopting and submitting their SIPs. 40 CFR 51.308(i). States 
must provide FLMs an opportunity for consultation, in person and at 
least sixty days prior to holding any public hearing on the SIP. This 
consultation must include the opportunity for the FLMs to discuss their 
assessment of impairment of visibility in any Class I area and to offer 
recommendations on the development of the RPGs and on the development 
and implementation of strategies to address visibility impairment. 
Further, a State must include in its SIP a description of how it 
addressed any comments provided by the FLMs. Finally, a SIP must 
provide procedures for continuing consultation between the State and 
FLMs regarding the State's visibility protection program, including 
development and review of SIP revisions, five-year progress reports, 
and the implementation of other programs having the potential to 
contribute to impairment of visibility in Class I areas.

III. Our Analysis of Nebraska's Regional Haze SIP

    The State of Nebraska submitted a regional haze SIP revision to EPA 
on July 13, 2011 for approval into the Nebraska SIP. The following is 
an evaluation of that submission. See the Technical Support Document 
(TSD) for this proposal for a more comprehensive technical analysis.

A. Public Notice

    EPA is proposing to find that the State of Nebraska has met the 
requirements of the CAA which require that the State adopt a SIP after 
reasonable notice and public hearing. EPA also believes that the State 
has met the specific procedural requirements for SIP revisions 
promulgated at 40 CFR part 51, subpart F and appendix V. The State met 
these requirements by publishing notices of the public hearing, an 
opportunity for a public hearing, and at least a thirty-day public 
comment period by prominent advertisement, and Nebraska, in accordance 
with its laws, submitted the revisions on July 13, 2011, to EPA for 
approval. Specific information on Nebraska's rulemaking, regional haze 
SIP development and public information process is included in Chapter 
3, and Appendix 3, of the State of Nebraska's regional haze SIP, which 
is included in the docket of this proposed rulemaking.

B. Affected Class I Areas

    Although there are no Class I areas within the State of Nebraska, 
the State is still required to identify those Class I areas which may 
be affected by emissions from Nebraska sources. Nebraska participated 
in the planning efforts of CENRAP, an RPO including nine States--
Nebraska, Iowa, Oklahoma, Texas, Minnesota, Iowa, Missouri, Arkansas, 
and Louisiana. CENRAP and its contractors provided air quality modeling 
to the States to help them determine whether sources located within the 
State can be reasonably expected to cause or contribute to visibility 
impairment in Class I areas. The modeling conducted relied on baseline 
year (2002) and future planning year (2018) emissions inventories that 
were prepared with participation from each of the CENRAP States. The 
modeling was based on PM Source Apportionment Technology (PSAT) for the 
Comprehensive Air Quality Model with extensions (CAMx) photochemical 
model.
    According to the PSAT modeling, contributions from Nebraska sources 
for the worst 20 percent days were highest at the South Dakota Class I 
areas. For the 2002 baseline year, Nebraska sources were projected to 
contribute 7.81 percent of visibility impairment at Badlands, and 7 
percent at Wind Cave. In 2018, the projected contribution was reduced 
to 5.89 percent and 5.24 percent, respectively. However, it is critical 
to note that the 2018 projections were developed assuming presumptive 
levels of SO<INF>2</INF> control on Nebraska BART sources, which 
ultimately the State did not require. For that reason, it is likely 
that Nebraska sources will have a somewhat larger contribution to 2018 
visibility impairment than what the modeling predicted.
    Nebraska's contribution to all other Class I areas was considerably 
less, and in no case greater than 1.9 percent in 2002 according to the 
PSAT modeling.\10\
---------------------------------------------------------------------------

    \10\ Other Class I areas examined include Great Sand Dunes 
National Park and Rocky Mountain National Park in Colorado; Boundary 
Waters Wilderness Area and Voyagers National Park in Minnesota; 
Guadalupe Mountains National Park and Big Bend National Park in 
Texas; Wichita Mountains Wilderness Area in Oklahoma; Hercules-
Glades Wilderness Area and Mingo Wilderness Area in Missouri; and 
Caney Creek Wilderness Area and Upper Buffalo Wilderness Area in 
Arkansas.
---------------------------------------------------------------------------

C. Baseline and Natural Visibility Conditions

    States that host Class I areas are required to estimate the 
baseline, natural and current visibility conditions of those Class I 
areas. Nebraska does not host a Class I area, therefore, it is not 
required to estimate these metrics.

D. Reasonable Progress Goals

    The RHR requires States and tribes to establish a RPG for each 
Class I area within the State. Nebraska does not have a Class I area 
within the State and therefore is not required to establish a RPG. 
States hosting Class I areas are required to establish RPGs, and to 
make assessments regarding whether emission

[[Page 12776]]

reductions are needed from sources in Nebraska in order to meet their 
RPG. Specific State goals and Nebraska's effect on meeting them are 
described in further detail in the LTS consultation section, below.

E. Long-Term Strategy

    States must submit a long-term strategy that addresses regional 
haze visibility impairment for each Class I area within it and for each 
Class I area located outside it which may be affected by emissions from 
it. The long-term strategy must include enforceable emissions 
limitations, compliance schedules, and other measures as necessary to 
achieve the reasonable progress goals established by States having 
Class I areas.
    Nebraska's LTS for the first implementation period addresses the 
emissions reductions from Federal, State, and local controls that take 
effect in the State from the end of the baseline period until 2018. As 
described elsewhere in this notice, the changes in point, area, and 
mobile source emissions over the first implementation period (through 
2018) were taken into account by CENRAP and the State in developing the 
emission inventory for 2018. Specifically, Nebraska considered the 
following Federal and State control measures when developing its LTS:
    <bullet> CAIR. Although the State of Nebraska was not included in 
the CAIR rulemaking, the rule was a major component in the underlying 
assumptions used to determine source apportionment because of the 
reductions expected in neighboring States.
    <bullet> Federal mobile source standards
    <bullet> Tier 2 vehicle standards and low sulfur fuel requirements
    <bullet> Locomotive and marine engine standards
    <bullet> Small spark-ignition engine standards
    <bullet> National Emission Standards for Hazardous Air Pollutants 
(NESHAP) Maximum Achievable Control Technology (MACT) standards
    <bullet> Nebraska's Prevention of Significant Deterioration (PSD) 
construction permitting program. Nebraska notes that the visibility 
protection provisions of PSD found at 40 CFR 52.21(o) have been 
incorporated into Title 129--Nebraska Air Quality Regulations at 
Chapter 19. Section 40 CFR 52.21(p) requires notification and 
consultation with FLMs of Class I areas which may be affected by 
emissions from a new source; these requirements under have been 
incorporated by reference into Title 129 in Chapter 19.
    Nebraska has fugitive dust regulations in Nebraska Title 129--
Chapter 32, which includes a provision applicable to construction 
activities. The rule requires the use of reasonable measures such as 
paving, cleaning, application of water, planting and maintenance of 
ground cover, and/or application of dust-free surfactants to prevent 
dust from becoming airborne such that it remains visible beyond the 
property boundary. Nebraska estimates that construction activities are 
not expected to cause a significant impact to visibility, and did not 
require any additional measures to mitigate the impacts of construction 
activities for purposes of visibility improvement.
    Nebraska also has regulations that address smoke management for 
agricultural and forestry management burns. Title 129--Chapter 30 is a 
ban on open burning with some direct exceptions that include 
agriculture operations, parks management, and fires set for training 
purposes. Other types of exceptions are subject to approval by the NDEQ 
and the local fire authority. For purposes of forestry or land 
management, such burning is allowed provided it is conducted by a 
limited set of organizations approved by NDEQ. Nebraska contends that, 
based on the minimal impacts on nearby Class I areas from burning, a 
more stringent smoke management plan is not needed for purposes of 
visibility protection at this time.
    The above programs are fully enforceable, provide for the 
mitigation of new source impacts through new source permitting 
programs, and reflect appropriate consideration of current programs and 
prospective changes in emissions. Enforceability of Nebraska's BART 
control measures are more fully described below in section III.F.
a. Consultation on Other States' RPGs
    Where Nebraska has emissions that are reasonably anticipated to 
contribute to visibility impairment in any Class I area located in 
another State or States, it must consult with the other State(s) in 
order to develop coordinated emission management strategies. If 
Nebraska causes or contributes to impairment in a Class I area, it must 
demonstrate that it has included in its SIP all measures necessary to 
obtain its share of the emission reductions needed to meet the progress 
goal for the area.
    As mentioned previously, Nebraska participated in the CENRAP 
planning process, which provided the primary venue for State 
consultation and coordination on emission management strategies. 
Nebraska also asserts that it notified the States of South Dakota, 
Oklahoma, Missouri and Colorado while its draft BART permits were open 
for public comment, proposing only control for NO<INF>X</INF> at the 
three BART units in the State. It should be noted that although 
Nebraska participated as a member State in CENRAP, the greatest impacts 
from Nebraska sources occur in a Western Regional Area Partnership 
(WRAP) State--South Dakota.
South Dakota
    Nebraska asserts that sources in the State have a ``minimal'' 
visibility impact on all Class I areas, and points out in its SIP that 
no State asked Nebraska for specific emission reductions in order to 
meet its RPGs. We disagree with the characterization of Nebraska's 
contribution as minimal, as source-specific CALPUFF modeling shows a 
significant visibility impact from GGS on the South Dakota Class I 
areas.<SUP>11 12</SUP>
---------------------------------------------------------------------------

    \11\ GGS's maximum visibility impact at Badlands was 3.12 dv in 
2003, and 2.59 dv at Wind Cave in 2002.
    \12\ Source-specific CALPUFF modeling for Nebraska City Station 
and Gerald Gentleman Station is in appendix 10.5 of the SIP.
---------------------------------------------------------------------------

    Furthermore, we note that South Dakota's reasonable progress goals, 
which are proposed for approval by EPA at the time of this writing, 
achieve less visibility improvement than the uniform rate of progress 
for the first implementation period. The reasonable progress goals for 
the 20 percent worst days fall short of the uniform rate of progress by 
1.28 dv for Badlands and 1.34 dv at Wind Cave.\13\ The modeling used to 
estimate achievement of these goals assumed that the presumptive level 
of SO<INF>2</INF> BART controls would be installed on Nebraska sources. 
Nebraska did not go on to require BART-level controls, therefore, South 
Dakota may be even further away from meeting its RPGs than what the 
modeling predicted. As described in detail in section III. F. d. of 
this notice, we propose to disapprove Nebraska's SO<INF>2</INF> BART 
determination for GGS. We also propose to disapprove Nebraska's LTS 
insofar as it relied on this deficient BART determination. These issues 
are addressed through reliance on the Transport Rule as an alternative 
to BART for SO<INF>2</INF> emissions from the GGS units.
---------------------------------------------------------------------------

    \13\ 76 FR 76646 (December 8, 2011).
---------------------------------------------------------------------------

Colorado
    In comment letters dated January 21, 2011, and June 23, 2009, the 
Colorado Department of Public Health and Environment (CDPHE) notes that 
according to source-specific CALPUFF modeling, GGS has an impact of 
greater than one deciview on Rocky Mountain

[[Page 12777]]

National Park (RMNP). CDPHE questioned why Nebraska would propose no 
SO<INF>2</INF> controls for such a large power plant, and requested 
that Nebraska take another look at the cost assumptions made for Flue 
Gas Desulfurization (FGD) controls. They express that $2,700 per ton 
for control of SO<INF>2</INF> is reasonable, and that the cost is 
likely even lower.
    CDPHE commented that it understands Nebraska's concerns about water 
availability in western Nebraska, as the State of Colorado is also in 
an arid region. They state that all large EGUs in Colorado have 
installed (or are in the process of installing) FGD controls to reduce 
SO<INF>2</INF> emissions.
    CDPHE goes on to note that the most recent WRAP modeling, which 
used the CMAQ model, predicts that RMNP is far short of its uniform 
rate of progress. CDPHE asked that Nebraska reconsider SO<INF>2</INF> 
controls at GGS under the RHR to help Colorado make progress at RMNP.
    Nebraska denies this request in their SIP on the basis that WRAP's 
modeling did not distinguish Nebraska's impact from the other CENRAP 
States. Nebraska makes the argument that a wind rose from RMNP 
indicates that the wind pattern is rarely from the direction of 
Nebraska.
    We share Colorado's concerns about the SO<INF>2</INF> BART 
determination for GGS, and as described above, we are proposing to 
disapprove this deficient BART determination and Nebraska's LTS insofar 
as the State relied on it to meet the LTS requirements. We propose that 
these issues will be addressed through reliance on the Transport Rule 
as an alternative to BART for SO<INF>2</INF> emissions from the GGS 
units.
Minnesota
    Boundary Waters, Voyageurs, Seney, and Isle Royale are referred to 
as the Northern Midwest Class I areas. As identified in the document, 
``Reasonable Progress for Class I Areas in the Northern Midwest--Factor 
Analysis,'' \14\ the Lake Michigan Air Directors Consortium (LADCO) 
identified the following States contributing to Class I area visibility 
impairment in the LADCO region: Michigan, Minnesota, and Wisconsin, as 
well as surrounding States, such as the Dakotas, Iowa, Missouri, 
Illinois, and Indiana. Nebraska does not significantly contribute to 
visibility impairment at the Minnesota Class I areas according to PSAT 
modeling. Through RPO consultation, Minnesota determined that no 
additional emissions reductions from Nebraska sources were needed to 
meet Class I area visibility improvement goals at this point in time. 
EPA believes that this satisfies the requirement for consultation 
between these States.
---------------------------------------------------------------------------

    \14\ Appendix 11.1 of the SIP
---------------------------------------------------------------------------

Oklahoma
    As identified in the document titled, ``Oklahoma`s Wichita 
Mountains Wilderness Area Regional Haze Planning,'' \15\ Oklahoma 
identified Nebraska in its area of influence for NO<INF>X</INF>. 
Nebraska was initially invited to participate in the Oklahoma 
consultation process. Nebraska states that it provided copies of the 
draft BART permits to the State of Oklahoma while on public notice, 
which only proposed NO<INF>X</INF> controls on OPPD and NPPD. Oklahoma 
did not provide any comment, or request additional controls for the 
initial planning period. EPA believes that the consultation requirement 
between these States has been satisfied.
---------------------------------------------------------------------------

    \15\ Appendix 11.3 of the SIP.
---------------------------------------------------------------------------

Missouri and Arkansas
    Caney Creek, Upper Buffalo, Hercules Glades, and Mingo are referred 
to as the central Class I areas. As identified in the document, 
``Central Class I Areas Consultation Plan,'' \16\ CENRAP identified 
Nebraska in the area of influence for NO<INF>X</INF> at the central 
Class I areas. The central States determined whether a State was a 
major contributor based on an analysis of four approaches: 
trajectories, areas of influence, PSAT, and Q/d. If a State was found 
to be a major contributor in at least 3 of the 4 approaches, the 
central States concluded it was appropriate to include that State as a 
major contributor. Nebraska was found to be a contributor based upon 
the area of influence only, therefore it was excluded as a major 
contributing State to visibility impairment in Class I areas in 
Missouri and Arkansas. EPA believes that Nebraska's consultation 
requirement with these States was satisfied.
---------------------------------------------------------------------------

    \16\ Appendix 11.2 of the SIP.
---------------------------------------------------------------------------

F. Best Available Retrofit Technology

    States must submit an implementation plan containing emission 
limitations representing BART and schedules for compliance with BART 
for each BART-eligible source that may reasonably be anticipated to 
cause or contribute to any impairment of visibility in any Class I 
area.
a. BART-Eligible Sources
    States must identify all BART-eligible sources in their SIP. 
Sources are subject to BART if: One or more emissions units at the 
facility belong to one of the twenty-six BART source categories \17\; 
the unit did not operate before August 7, 1962, but was in existence on 
August 7, 1977; and the unit has the potential to emit 250 tons per 
year or more of any visibility-impairing pollutant, which Nebraska 
determined to be SO<INF>2,</INF> NO<INF>X</INF>, and PM.
---------------------------------------------------------------------------

    \17\ BART guidelines, 40 CFR Part 51 Appendix Y. .
---------------------------------------------------------------------------

    The BART Guidelines direct States to exercise judgment in deciding 
whether VOCs and ammonia (NH<INF>3</INF>) impair visibility in their 
Class I area(s). 70 FR 391160. CENRAP performed analyses which 
demonstrated that anthropogenic emissions of VOC and NH<INF>3</INF> do 
not significantly impair visibility in the CENRAP region. Therefore, 
Nebraska did not consider NH<INF>3</INF> among visibility-impairing 
pollutants and did not further evaluate NH<INF>3</INF> and VOC 
emissions sources for potential controls under BART or reasonable 
progress.
    Nebraska used its database to identify facilities with emission 
units in one or more of the twenty six BART categories. Nebraska then 
conducted a survey to identify units within these source categories 
with potential emissions of 250 tons per year or more for any 
visibility-impairing pollutant from any unit that was in existence on 
August 7, 1977, and began operation after August 7, 1962. The sources 
identified by Nebraska are listed in Table 1. More detailed information 
regarding each facility's BART-eligible units may be found in Appendix 
10.2 of the SIP.
    EPA proposes to find that Nebraska adequately identified all BART-
eligible sources within the State.

[[Page 12778]]



                                                Table 1--Facilities With BART-Eligible Units in Nebraska
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                             Number of     Potential to emit (date-eligible units, tons
                                                                                          emission units                     per year)
           Source category                     Facility                  Location          identified by -----------------------------------------------
                                                                                               date             PM              NOX             SO2
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fossil-fuel fired steam electric       NPPD Gerald Gentlemen     Sutherland.............               2           4,460          46,200          79,200
 plants of more than 250 million BTU    Station.
 per hour heat input.
                                       OPPD Nebraska City......  Nebraska City..........               1          43,792          19,040          45,696
                                       OPPD North Omaha Station  Omaha..................               2             910          14,420          34,283
                                       NPPD Sheldon Station....  Hallam.................               2             908           6,020          15,100
                                       CW Burdick Generating     Grand Island...........               2             997           1,923          10,304
                                        Station.
                                       Lon D. Wright Power       Fremont................               2              97           3,784           3,035
                                        Plant.
                                       Don Henry Power Center..  Hastings...............               1              19           1,360             780
                                       North Denver Station....  Hastings...............               1              14             426             853
Portland cement plant................  Ash Grove Cement........  Louisville.............               7             528           2,373           3,182
Chemical process plant; fossil-fuel    Beatrice Nitrogen Plant.  Beatrice...............              18              48             924               5
 boilers; hydrofluoric, sulfuric, and
 nitric acid plant.
--------------------------------------------------------------------------------------------------------------------------------------------------------

b. BART-Subject Sources
    Nebraska then screened out some BART-eligible sources from being 
subject to BART on the basis that they do not cause or contribute to 
visibility impairment in a Class I area. Nebraska selected a 
contribution threshold of 0.5 deciviews based on the 98th percentile of 
daily modeled visibility impact over an annual period because it is 
consistent with the Guidelines, no BART-eligible sources are near Class 
I areas, and there are no significant clusters of BART-eligible sources 
in the State. Nebraska required the owner of each BART-eligible source 
to conduct dispersion modeling using the CALPUFF model and submit the 
results to Nebraska.\18\ The CALPUFF modeling protocol is included in 
Appendix 10.3 of the SIP.
---------------------------------------------------------------------------

    \18\ One exception--Nebraska conducted modeling for the Lon D. 
Wright Power Plant.
---------------------------------------------------------------------------

    Nebraska identified eight sources with impacts less than 0.5 
deciviews, and were therefore determined not to be BART-subject: 
Beatrice Nitrogen Plant; Ash Grove Cement; Don Henry Power Center; Lon 
D. Wright Power Plant; CW Burdick Generating Station; North Denver 
Station; NPPD Sheldon Station; and OPPD North Omaha Station.
    Two facilities had impacts greater than 0.5 deciviews, and were 
therefore determined to be BART-subject: OPPD NCS Station Unit 1 and 
NPPD GGS Units 1 and 2. EPA proposes to find that Nebraska adequately 
determined which sources in the State were subject to BART.
c. Particulate Matter (PM) Evaluation
    Nebraska used source-specific CALPUFF modeling to examine the 
relative contribution of PM, NO<INF>X</INF>, and SO<INF>2</INF> 
emissions to visibility impairment.
    For NCS Unit 1, direct PM emissions only accounted for 0.32 percent 
of impairment in the most impaired year, 2001, at the closest Class I 
area, Hercules Glades. Nebraska concluded that direct PM emissions from 
NCS do not significantly contribute to visibility impairment, and 
therefore, a full five factor BART analysis for PM was not needed.
    For GGS Units 1 and 2, direct PM emissions only accounted for 0.69 
percent of impairment on the most impaired year, 2003, at the closest 
Class I area, Badlands. Nebraska concluded that direct PM emissions 
from GGS do not significantly contribute to visibility impairment, and 
therefore, a full five factor BART analysis for PM was not needed.
    EPA agrees with these conclusions.
d. BART Determination for Omaha Public Power District (OPPD) Nebraska 
City Station (NCS) Unit 1
    Nebraska and EPA have reached different conclusions as to whether 
NCS Unit 1 is located at a power plant with a generating capacity in 
excess of 750 megawatts (MW), or not. If NCS falls within this category 
of sources, then the BART Guidelines must be followed in determining 
BART limits and the presumptive limits in the Guidelines would apply. 
See CAA section 169A(b). In September 2008, Nebraska asked EPA for 
clarification on whether recently permitted units, such as NCS Unit 2, 
should be included in the total plant capacity for purposes of applying 
presumptive BART. In a response dated November 7, 2008, we indicated it 
is reasonable to interpret the RHR to mean that if the plant capacity 
is greater than 750 MW at the time the BART determination is made by 
the State (i.e., at the time the State places the BART determination on 
public notice), then the power plant is a facility ``having a total 
generating capacity in excess of 750 [MW]'' and any unit at the plant 
greater than 200 MW is subject to presumptive BART.
    The groundbreaking for construction of NCS Unit 2 was September 13, 
2005. Nebraska put the NCS Unit 1 BART permit on public notice on 
December 12, 2008. Unit 2 was operational on May 1, 2009.\19\ Nebraska 
concluded that because NCS Unit 2 was not operational at the time of 
the BART determination for Unit 1, its capacity did not count towards 
the 750 MW threshold, and therefore, it was not mandatory for Nebraska 
to follow 40 CFR 51 Appendix Y in making the BART determination.
---------------------------------------------------------------------------

    \19\ http://www.powermag.com/coal/Top-Plants-Nebraska-City-Station-Unit-2-Nebraska-City-Nebraska_2179_p4.html, accessed 
February 7, 2012.
---------------------------------------------------------------------------

    We concede that there is some question as to whether the NCS Unit 1 
is a presumptive unit, requiring use of the BART Guidelines, or not. 
Regardless, Nebraska did proceed

[[Page 12779]]

through a basic step-wise analysis of the costs and visibility impacts 
of available controls.
    NCS Unit 1 has existing overfire air (OFA), so in determining BART 
for NO<INF>X</INF> at NCS unit 1, Nebraska considered low 
NO<INF>X</INF> burners (LNB) and selective catalytic reduction (SCR). 
Selective non-catalytic reduction (SNCR) was determined to be 
technically infeasible due to high furnace exit temperatures. The cost 
effectiveness of LNB/OFA at a rate of 0.23 lbs/MMBtu was $166 per ton; 
the cost effectiveness of LNB/OFA plus SCR at a rate of 0.08 lbs/MMBtu 
was $2,611 per ton.
    NCS Unit 1 impacts Hercules Glades in Missouri and Wichita 
Mountains in Oklahoma an average of 0.65 dv and 0.46 dv, 
respectively.\20\ Installing LNB with OFA offers an average improvement 
of 0.22 dv at Hercules Glades and 0.12 dv at Wichita Mountains. The 
addition of SCR would provide an additional 0.17 dv of improvement at 
Hercules Glades,\21\ but because of the high incremental cost of $8,203 
per ton and the level of visibility improvement, it was not chosen as 
BART. Nebraska determined BART for NO<INF>X</INF> at NCS unit 1 to be 
LNB with OFA at a rate of 0.23 lbs/MMBtu. EPA agrees that the State's 
determination is reasonable given the relatively insignificant 
additional visibility improvement associated with SCR for the 
additional cost.
---------------------------------------------------------------------------

    \20\ Our use of the word average in this section means averaging 
the 98th percentile impact for each of the three baseline years, 
2001-2003.
    \21\ Improvement from the addition of SCR at Wichita Mountains 
was not provided by NDEQ in the SIP.
---------------------------------------------------------------------------

    For SO<INF>2</INF> control at NCS, Nebraska evaluated both dry and 
wet FGD. Nebraska concluded that dry FGD (spray dryer absorber (SDA)) 
has lower capital and operating costs than wet FGD and can achieve a 
similar control efficiency; it thus focused its cost analysis on dry 
FGD. We note that Nebraska did not evaluate Dry Sorbent Injection (DSI) 
as a potential SO<INF>2</INF> control for NCS Unit 1. Since DSI can 
generally achieve the same control efficiency as FGD, we believe that 
the State has appropriately evaluated the level of controls in its 
analysis.
    The costs per ton for dry FGD were reasonable both at a rate of 
0.15 lbs/MMBtu ($1,759 per ton) and 0.10 lbs/MMBtu ($1,636 per 
ton).\22\ The visibility improvement at Hercules Glades from dry FGD 
was 0.25 dv and 0.44 dv \23\, respectively. The visibility improvement 
of adding FGD at a rate of 0.15 lb/MMBtu to the LNB/OFA system required 
as BART for NO<INF>X</INF> is 0.25 dv.\24\ Nebraska determined that the 
minimal visibility improvement from installation of FGD at NCS Unit 1 
did not warrant the additional cost ($34,770,000 or $1,759 per ton); 
therefore, no SO<INF>2</INF> controls were proposed as BART for NCS 
Unit 1. EPA agrees that the State's determination is not unreasonable 
given the minimal additional visibility improvement.
---------------------------------------------------------------------------

    \22\ Nebraska assumed the same cost regardless of the level of 
control (0.15 or 0.10 lb/MMBtu); however, a higher level of control 
would likely have a slightly higher cost.
    \23\ Nebraska only provided visibility information for the most 
impacted year for the 0.10 lb/MMBtu rate; therefore, this 
improvement is maximum, not average.
    \24\ Nebraska did not provide modeling information for FGD at a 
rate of 0.10 lb/MMBtu combined with LNB/OFA, so that level of 
control cannot be fully evaluated.
---------------------------------------------------------------------------

e. BART Determination for Nebraska Public Power District (NPPD) Gerald 
Gentleman Station (GGS) Units 1 and 2
    Nebraska evaluated LNB with OFA and SCR for NO<INF>X</INF> control 
at GGS. In 2006, NPPD installed LNB and OFA at Unit 1, but since this 
was after the 2001-2003 baseline modeling period, it was still 
evaluated in the BART analysis. SNCR was determined to be technically 
infeasible due to high furnace exit temperatures. LNB with OFA (at a 
rate of 0.23 lbs/MMBtu) had a cost effectiveness of $198 per ton, and 
LNB with OFA and SCR (at a rate of 0.08 lbs/MMBtu) had a cost 
effectiveness of $2,297 per ton.
    GGS affects six Class I areas greater than 0.5 dv on average: 
Badlands and Wind Cave in South Dakota; Wichita Mountains in Oklahoma; 
Rocky Mountain in Colorado; and Hercules Glades and Mingo in Missouri. 
GGS has a cumulative baseline impact on these six Class I areas of 8.86 
dv.
    LNB plus OFA offers an improvement at Badlands (the closest and 
most affected Class I area) of 0.66 dv, and 1.94 dv cumulatively. The 
addition of SCR offers an incremental improvement of 0.49 dv at 
Badlands, and 1.27 dv cumulatively. Nebraska concluded that based on 
the relatively low incremental visibility improvement of adding SCR to 
the LNB/OFA system for the additional cost ($5,445 incremental cost per 
ton), requiring SCR as BART was not warranted. NO<INF>X</INF> BART for 
GGS was determined to be the installation of LNB/OFA with an emission 
limitation of 0.23 lbs NO<INF>X</INF>/MMBtu, averaged across the two 
units. EPA agrees that the State's NO<INF>X</INF> BART determination 
for GGS is reasonable.
    Nebraska evaluated wet and dry FGD and Dry Sorbent Injection (DSI) 
for SO<INF>2</INF> controls at GGS. All control options were evaluated 
at the presumptive rate of 0.15 lbs/MMBtu. The cost effectiveness for 
dry and wet FGD was nearly identical at $2,726 per ton and $2,724 per 
ton, respectively; the cost effectiveness of DSI was $2,058 per ton. 
All of these controls were determined by Nebraska to be reasonable on a 
cost per ton basis.
    The visibility improvement from these controls operated at a rate 
of 0.15 lbs/MMBtu is significant: an average of 0.86 dv from DSI, and 
an average of 0.78 dv from FGD at Badlands. The cumulative improvement 
is even greater; FGD control would offer an improvement of 3.17 dv 
across the six Class I areas that GGS affects. Nebraska only provided 
visibility information for DSI at Badlands; therefore, the cumulative 
benefit of DSI is unknown.
    Nebraska raises water use of wet and dry FGD as a significant non-
air environmental impact. In its SIP, Nebraska presents a description 
of the over-appropriation of water resources in the western part of 
Nebraska, where GGS is located. The State described that this over-
appropriation means that any new use of groundwater requires an offset 
in water consumption in the same area. To do this, NPPD would have to 
purchase the groundwater rights from surrounding landowners. Nebraska 
did not include the cost of obtaining these groundwater rights in the 
original BART analysis costs; however, in the narrative portion of the 
SIP, Nebraska describes both the costs of obtaining groundwater, and 
the loss of agricultural revenue due to taking land out of agricultural 
production. Nebraska concludes that the cost of obtaining water to 
operate wet FGD would add approximately 8.6 percent to the cost of 
controls. If these costs were added into the BART analysis, it would 
only increase the cost of control by $234 per ton. This brings the cost 
per ton to $2,958, which EPA believes is still a reasonable cost of 
control over both units.\25\
---------------------------------------------------------------------------

    \25\ EPA is not including any cost of the loss of agricultural 
revenue in this estimation.
---------------------------------------------------------------------------

    In the SIP, Nebraska says that it used a $40,000,000/yr/dv 
threshold for determining what would be considered a reasonable 
investment for visibility improvement. They concluded that the costs of 
FGD control were reasonable on a cost per ton basis, but not on a 
dollars per deciview basis. Furthermore, Nebraska sees the water 
consumption of FGD controls as significant, and concludes that because 
of this unique situation, FGD controls are unreasonable for GGS Units 1 
and 2. Nebraska concludes that BART is no SO<INF>2</INF> controls at 
GGS.

[[Page 12780]]

    EPA disagrees with this conclusion. Using Nebraska's analysis, we 
agree that the cost per ton for FGD control is reasonable, and 
Nebraska's analysis shows significant visibility improvement, both at 
Badlands and on a cumulative basis. We also believe that Nebraska 
inappropriately ruled out DSI. Costs for the control are reasonable at 
$2,058 per ton and visibility improvement at Badlands is significant at 
0.86 dv. Furthermore, DSI does not consume as much water as does FGD.
    Finally, even though the cost of FGD controls is reasonable, we 
believe that the costs of FGD control are overestimated. This is 
described in detail in the TSD to this notice. EPA conducted an 
independent review of the cost information presented by Nebraska in its 
BART analysis for dry scrubbers. We found several errors and deviations 
from EPA's Cost Control Manual.\26\ Cost categories in which we found 
significant errors or deviations include: Engineering Procurement and 
Construction; Bond Fees; Escalation; Contingency; Allowance for Funds 
Used During Construction; Capital Recovery Factor; and Operation and 
Maintenance.
---------------------------------------------------------------------------

    \26\ EPA Air Pollution Control Cost Manual, Sixth Edition, EPA/
452/B-02-001, January 2002.
---------------------------------------------------------------------------

    We also found that Nebraska incorrectly calculated the 
SO<INF>2</INF> emission rates. On page 15 of its BART analysis, NPPD 
calculates its SO<INF>2</INF> emission baseline based on applying a 24-
hour maximum emission rate of 0.749 lbs/MMBtu (2001-2003) to a maximum 
heat input of 15,175.5 MMBtu/hr, based on a 100 percent capacity 
factor. This results in an emissions baseline of 49,785 tons/year.\27\ 
We believe this calculation does not appropriately represent GGS's 
SO<INF>2</INF> emission baseline, and is in fact too high. We have 
downloaded emissions data for GGS from our Clean Air Markets Web 
site,\28\ and using the same emissions data from the three year 
averaging period of 2001-2003, we have calculated the three year 
average annual SO<INF>2</INF> emissions for units 1 and 2 of the GGS to 
be 0.565 lbs/MMBtu.\29\ Reducing this to a controlled SO<INF>2</INF> 
emissions level of 0.15 lbs/MMBtu results in a control efficiency of 
approximately 73.5 percent. Applying this level of control to our 
adjusted GGS SO<INF>2</INF> emission baseline of 31,513 tons/year would 
reduce it to 8,366 tons/yr, resulting in a reduction of 23,147 tons of 
SO<INF>2</INF> annually. Applying the same approximate 80 percent level 
of reduction GGS assumes to our adjusted GGS SO<INF>2</INF> emission 
baseline of 31,513 tons/yr would reduce it to 6,311 tons/yr, resulting 
in a reduction of 25,202 tons of SO<INF>2</INF> annually.\30\
---------------------------------------------------------------------------

    \27\ (0.749 lbs/MMBtu) * (15,175 MMBtu/hr) * (8,760 hrs/yr) * 
(ton/2,000 lbs) = 49,785 tons/yr.
    \28\ http://camddataandmaps.epa.gov/gdm/index.cfm?fuseaction=emissions.wizard.
    \29\ See Attachment B to our TSD. Based on adding the station 
total pounds of SO<INF>2</INF> emissions from 2001-2003 and dividing 
by the station total heat input from 2001-2003.
    \30\ (39,815/49,785) * 31,513 = 25,202.
---------------------------------------------------------------------------

    However, dry scrubbers are capable of much greater control 
efficiencies than the 80 percent level that GGS assumes.\31\ Therefore, 
for the purpose of calculating the cost effectiveness of dry scrubbers 
at the GGS, we also analyzed an SO<INF>2</INF> emission limit of 0.06 
lbs/MMBtu, which results in a scrubber efficiency of approximately 
89.4%. Applying this level of control to our adjusted GGS baseline of 
31,513 tons/yr would reduce it to 3,347 tons/yr, resulting in a 
reduction of 28,166 tons of SO<INF>2</INF> annually. Table 2 summarizes 
EPA's adjustments to the Nebraska cost estimates for dry FGD control at 
GGS.
---------------------------------------------------------------------------

    \31\ Response to Technical Comments for Sections E. through H. 
of the Federal Register Notice for the Oklahoma Regional Haze and 
Visibility Transport Federal Implementation Plan, Docket No. EPA-
R06-OAR-2010-0190, 12/13/2011, Section II., Comments Relating to Our 
SO<INF>2</INF> BART Emission Limit, and elsewhere.

                              Table 2--Range of GGS Dry Scrubber Cost Effectiveness
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
                                                      Dry FGD                         Dry FGD
                                                  (original NPPD                  EPA's estimate
                                                  BART analysis)
----------------------------------------------------------------------------------------------------------------
SO2 Baseline....................................          49,785                      31,513
----------------------------------------------------------------------------------------------------------------
Uncontrolled Emission Level (lbs/MMBtu).........           0.749                       0.565
----------------------------------------------------------------------------------------------------------------
Controlled Emission Rate (lbs/MMBtu)............            0.15            0.15            0.11            0.06
Percent Reduction...............................             80%           73.5%             80%           89.4%
SO2 Emission Reduction (tons)...................          39,815          23,147          25,202          28,166
Total Annualized Cost...........................    $108,535,690     $53,469,570     $54,335,512     $55,543,352
Total Cost Effectiveness ($/ton)................          $2,726          $2,310          $2,156          $1,972
----------------------------------------------------------------------------------------------------------------

    In summary, we believe that Nebraska's cost analysis includes 
errors and deviations from EPA's Cost Control Manual that results in 
the overestimation of the costs of FGD controls. In addition, the State 
did not do a full evaluation of the potential visibility benefits from 
levels of control that FGD is capable of achieving. We believe that the 
cost per ton of SO<INF>2</INF> controls ranging from $1,972 (our 
analysis) to $2,958 (Nebraska's analysis, plus water) is reasonable, 
and that the visibility benefits, whether considered just at Badlands 
or cumulatively, are significant. Finally, we believe that the State 
improperly rejected DSI as a potential BART control. Therefore, EPA 
proposes to disapprove Nebraska's BART determination for SO<INF>2</INF> 
controls at GGS.
f. BART Summary and Enforceability
    Each source subject to BART must install and operate BART as 
expeditiously as practicable, but in no event later than five years 
after approval of the SIP revision; and include monitoring, 
recordkeeping and reporting requirements to ensure the BART limits are 
enforceable. Nebraska chose to incorporate BART requirements into PSD 
permits issued pursuant to Title 129 of the Nebraska Air Quality 
Regulations, Chapter 19. These limits will be incorporated into the 
facility's Title V permits after SIP approval. The permits require that 
the limits be met within five years of approval of Nebraska's regional 
haze SIP. The limits must be met on a thirty-day rolling average basis 
at all times, including periods of startup, shutdown and malfunction. 
The permits require the use of a NO<INF>X</INF> continuous emission 
monitoring system (CEMS) on each unit to demonstrate compliance with 
the BART NO<INF>X</INF> limits. Each CEMS is

[[Page 12781]]

required to be operated and certified in accordance with 40 CFR Part 
75. Recordkeeping and reporting is also required to be in accordance 
with 40 CFR Part 75. The PSD permits were submitted to the EPA for SIP 
approval as part of the State's RH SIP submittal. The PSD permits are 
enforceable by the State, and by EPA. We have reviewed these 
requirements and propose to find them adequate as they relate to the 
BART limits we are proposing to approve.
    Table 3 is a summary of the BART determinations made by Nebraska 
and EPA's proposed action on those determinations.

                                Table 3--Summary of Nebraska BART Determinations
----------------------------------------------------------------------------------------------------------------
                                                               BART controls determined
          Facility, units                   Pollutant                by the State          EPA's proposed action
----------------------------------------------------------------------------------------------------------------
OPPD Nebraska City Station, Unit 1.  NOX....................  Install low NOX burners     Approval.
                                                               with over fired air. Meet
                                                               presumptive level of 0.23
                                                               lbs/MMBtu.
                                     SO2....................  No additional controls.     Approval.
                                                               Source currently uses low
                                                               sulfur coal.
NPPD Gerald Gentleman Station,       NOX....................  Install low NOX Burners     Approval.
 Units 1 and 2.                                                with over fired air. Meet
                                                               presumptive level of 0.23
                                                               lbs/MMBtu, averaged over
                                                               the two units.
                                     SO2....................  No additional controls.     Disapproval.
                                                               Continue to use low
                                                               sulfur coal.
----------------------------------------------------------------------------------------------------------------

G. Federal Implementation Plan (FIP) to Address SO2 BART for GGS and 
LTS

    As discussed above, we propose to disapprove Nebraska's BART 
determination for GGS. In addition, as discussed in section III.E. 
(Long Term Strategy), we propose to disapprove Nebraska's LTS insofar 
as it relied on the deficient BART determination for SO<INF>2</INF> at 
GGS. To address the deficiencies identified in these proposed 
disapprovals, we are also proposing a FIP.
    The RHR allows for use of an alternative program in lieu of BART so 
long as the alternative program can be demonstrated to achieve greater 
reasonable progress toward the national visibility goal than would 
BART. On December 30, 2011, EPA proposed to find 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, including Nebraska. 76 FR 82219. EPA 
also proposed to revise the RHR to allow States to meet the 
requirements of an alternative program in lieu of BART by participation 
in the trading programs under the Transport Rule. EPA has not taken 
final action on that rule.
    We are proposing a partial FIP, relying on the Transport Rule as an 
alternative to BART for SO<INF>2</INF> emissions from the GGS units. 
This limited FIP would satisfy the SO<INF>2</INF> BART requirement for 
these units and remedy the deficiency in Nebraska's LTS.
    We noted that on December 30, 2011, the D.C. Circuit Court issued 
an order addressing the status of the Transport Rule and CAIR in 
response to motions filed by numerous parties seeking a stay of the 
Transport Rule pending judicial review. In that order, the D.C. Circuit 
Court stayed the Transport Rule pending the court's resolutions of the 
petitions for review of that rule in EME Homer Generation, L.P. v. EPA 
(No. 11-1302 and consolidated cases). The court also indicated that EPA 
is expected to continue to administer the CAIR in the interim until the 
court rules on the petitions for review of the Transport Rule. Under 
the Regional Haze Rule, an alternative to BART does not need to be 
fully implemented until 2018. As that is well after we expect the stay 
to be lifted, EPA believes it may still rely on the Transport Rule as 
an alternative to BART. Further, our proposed action would not impact 
the implementation of the Transport Rule or otherwise interfere with 
the stay.

H. Coordinating Regional Haze and RAVI

    EPA's visibility regulations direct States to coordinate their RAVI 
LTS and monitoring provisions with those for regional haze. Under EPA's 
RAVI regulations, the RAVI portion of a State SIP must address any 
integral vistas identified by FLMs pursuant to 40 CFR 51.304. An 
integral vista is defined in 40 CFR 51.301 as a ``view perceived from 
within the mandatory Class I Federal area of a specific landmark or 
panorama located outside the boundary of the mandatory Class I Federal 
area.'' Visibility in any Class I area includes any integral vista 
associated with that area. As mentioned previously, Nebraska does not 
have any Class I areas and the FLMs have not certified any integral 
vistas affected by emissions from Nebraska sources, therefore, the 
Nebraska regional haze SIP submittal is not required to address the two 
requirements regarding coordination of the regional haze SIP with the 
RAVI LTS and monitoring provisions.

I. Monitoring Strategy

    Because it does not host a Class I area, Nebraska is not required 
to develop a monitoring strategy for measuring, characterizing, and 
reporting regional haze impairment that is representative of Class I 
areas within the State. However, the State is required to establish 
procedures by which monitoring data and other information is used to 
determine the contribution of emissions from within the State to 
regional haze impairment at Class I areas outside of the State.
    Compliance with this requirement is met by participation in the 
IMPROVE network.\32\ Nebraska installed one IMPROVE protocol sampler at 
Nebraska National Forest County near Halsey, Nebraska in the central 
part of the State, and another at Crescent Lake National Wild Life 
Refuge in the panhandle of the State. A third IMPROVE Protocol sampler 
in Nebraska is operated independently in Thurston County, by the Omaha 
Tribe of Nebraska; however, EPA notes that this monitor is no longer 
operating.
---------------------------------------------------------------------------

    \32\ http://vista.cira.colostate.edu/improve.
---------------------------------------------------------------------------

    EPA believes the State's commitment to utilize data from these 
sites, or any other EPA-approved monitoring network location, to 
characterize and model conditions within the State and to compare 
visibility conditions in the State to visibility impairment at Class I 
areas hosted by other States, and proposes that Nebraska has satisfied 
the monitoring requirements of 40 CFR 51.308(d)(4).

J. Emissions Inventory

    States are required to develop a statewide inventory of emissions 
of pollutants that are reasonably anticipated to cause or contribute to 
visibility impairment in any Class I area. The inventory must include 
emissions for a baseline year, emissions for the most recent year with 
available data, and future projected emissions.
    As mentioned previously, Nebraska worked with CENRAP and its

[[Page 12782]]

contractors to develop statewide emission inventories for 2002 and 
2018. Detailed methodologies are documented in appendices 8.3 and 9.1 
of the SIP. The 2018 emissions inventory was developed by projecting 
2002 emissions and applying reductions expected from Federal and State 
regulations affecting the emissions of the visibility-impairing 
pollutants NO<INF>X</INF>, PM, SO<INF>2</INF>, and VOCs. The 2002 
emissions were grown to year 2018 primarily using the Economic Growth 
Analysis System (EGAS6), MOBILE 6.2 vehicle emission modeling software, 
and the Integrated Planning Model (IPM) version 2.93 for EGUs. The 2018 
emissions for EGUs were based on simulations of the IPM that took into 
the account the effects of CAIR on emissions.
    At the time modeling was conducted, BART decisions had not been 
made by many States, including Oklahoma and Nebraska. Presumptive 
levels of BART control were assumed in projections of 2018 emissions. 
The 2018 Nebraska inventory was then updated to account for Nebraska's 
BART decisions, specifically, no SO<INF>2</INF> controls on the two 
BART-subject EGUs in the State.
    EPA believes the 2002 and 2018 statewide emissions inventories and 
the State's method for developing the 2018 emissions inventory for 
Nebraska meets the requirements of the RHR. Nebraska has also committed 
to update inventory periodically, therefore, we propose that Nebraska 
has met the requirements of 40 CFR 51.308(d)(4)(v).

K. Federal Land Manager (FLM) Consultation

    States are required to provide the FLMs an opportunity for 
consultation, in person and at least sixty days prior to holding any 
public hearing on the SIP (or its revision). Consultations should 
include the opportunity for the FLMs to discuss their assessment of 
impairment of visibility in any Class I area; and recommendations on 
the development of the RPG and on the development and implementation of 
strategies to address visibility impairment.
    Nebraska provided several opportunities for the FLMs to comment on 
Nebraska's regional haze plan. Nebraska asserts that it sent the draft 
BART permits for NPPD and OPPD to the FLMs in mid-2008, and again prior 
to public notice. Nebraska provided the FLMs with a draft of the 
Nebraska regional haze SIP on November 16, 2010, and received formal 
comments from the National Park Service (NPS), the US Fish and Wildlife 
Service (USFWS), and the US Forest Service (USFS) in January 2011.
    In developing any SIP (or plan revision), States must include a 
description of how it addressed any comments provided by the FLMs. The 
FLM comments and Nebraska's responses are provided in appendix 3 of the 
SIP, and are summarized in the TSD for this rulemaking.
    The main FLM comments centered on concerns that the modeling done 
by the RPOs assumed a presumptive level of control on Nebraska BART 
sources, but Nebraska did not go on to require that level of control, 
and in fact, required no control for SO<INF>2</INF>.
    The FLMs also commented that DSI should be evaluated for 
SO<INF>2</INF> control and SNCR for NO<INF>X</INF> control at NCS Unit 
1; they disagree with Nebraska's decision to not require FGD and SCR, 
as both controls have a reasonable cost. They strongly disagree with 
the BART determinations for GGS, pointing out that the visibility 
impact of these units is significant at more than just the closest 
Class I area (Badlands), and question several aspects of the cost 
estimation, such as escalation, contingencies, allowance for funds 
during construction, overestimation of direct annual costs.
    The USFWS did some interagency consultation regarding water 
availability as a reason not to require FGD controls. The USFWS Air 
Branch asked the USFWS's Nebraska Field Office to review Nebraska's 
draft regional haze SIP and comment on the merits of the arguments on 
water and endangered species protection. While the Nebraska Field 
Office agrees that Nebraska's arguments have some merit, they say that 
the information provided by Nebraska represents a worst-case scenario, 
and concludes that the water availability concerns do not automatically 
negate the opportunity to make improvements in air quality.
    Finally, regional haze SIPs must provide procedures for continuing 
consultation between the State and FLMs on the implementation of 40 CFR 
51.308, including development and review of SIP revisions and five-year 
progress reports, and on the implementation of other programs having 
the potential to contribute to impairment of visibility in Class I 
areas. Nebraska has committed to continuing to coordinate and consult 
with the FLMs during the development of future progress reports and 
plan revisions, as well as during the implementation of programs having 
the potential to contribute to visibility impairment in the mandatory 
Class I Federal areas. We propose that Nebraska has satisfied the FLM 
consultation requirements of 40 CFR 51.308(i).

L. Periodic SIP Revisions and Five Year Progress Report

    Nebraska acknowledged the requirement under 40 CFR 51.308(f)-(h) to 
submit periodic progress reports and regional haze SIP revisions, with 
the first report due by July 31, 2018, and revisions due every ten 
years thereafter. Nebraska committed to meeting this requirement.
    Nebraska also acknowledged the requirement to submit periodic 
reports evaluating progress towards the reasonable progress goals 
established for each mandatory Class I area. Nebraska committed to 
complete the first five-year progress report by December 31, 2016. The 
report will evaluate the progress made towards the reasonable progress 
goal for each mandatory Class I area located outside Nebraska, which 
may be affected by emissions from within Nebraska. Using the findings 
of this first report, Nebraska committed to determining whether the 
adequacy of the plan is sufficient and taking appropriate action to 
revise the SIP as needed. We propose to find that Nebraska has 
satisfied the requirements to submit periodic SIP revisions and 
progress reports as required by 40 CFR 51.308(f)-(h).

IV. Proposed Actions

    We propose to partially approve and partially disapprove Nebraska's 
regional haze SIP submitted on July 13, 2011. We propose to disapprove 
the SO<INF>2</INF> BART determinations for Units 1 and 2 of GGS because 
they do not comply with our regulations and guidance. We are also 
proposing to disapprove Nebraska's long-term strategy insofar as it 
relied on the deficient SO<INF>2</INF> BART determination at GGS. We 
propose a FIP relying on the Transport Rule as an alternative to BART 
for SO<INF>2</INF> emissions from GGS to address these issues.
    We propose to approve all other portions of the Nebraska RH SIP. We 
note that all controls required as part of Nebraska's BART 
determinations, not included as part of our proposed FIP, must be 
operational within five years from the effective date of our final 
rule.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This proposed action is not a ``significant regulatory action'' 
under the terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 
1993), and is therefore not subject to review under the Executive 
Order.

[[Page 12783]]

B. Paperwork Reduction Act

    This proposed action does not impose an information collection 
burden under the provisions of the Paperwork Reduction Act, Under the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq., OMB must approve all 
``collections of information'' by EPA. The Act defines ``collection of 
information'' as a requirement for ``answers to * * * identical 
reporting or recordkeeping requirements imposed on ten or more persons 
* * *.'' 44 U.S.C. 3502(3)(A). The Paperwork Reduction Act does not 
apply to this action.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's proposed 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 this proposed action on 
small entities, I certify that this proposed action will not have a 
significant economic impact on a substantial number of small entities. 
The proposed partial approval of the SIP, if finalized, merely approves 
State law as meeting Federal requirements and imposes no additional 
requirements beyond those imposed by State law. Moreover, due to the 
nature of the Federal-State relationship under the CAA, preparation of 
flexibility analysis would constitute Federal inquiry into the economic 
reasonableness of State action. The CAA forbids EPA to base its actions 
concerning SIPs on such grounds. Union Electric Co., v. U.S. EPA, 427 
U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

D. Unfunded Mandates Reform Act

    Under sections 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
the private sector, of $100 million or more (adjusted to inflation). 
Under section 205, EPA must select the most cost-effective and least 
burdensome alternative that achieves the objectives of the rule and is 
consistent with statutory requirements. Section 203 requires EPA to 
establish a plan for informing and advising any small governments that 
may be significantly or uniquely impacted by the rule.
    EPA has determined that the approval action proposed 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 Federal action proposes to 
approve 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

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612 (Federalism) and 12875 (Enhancing the 
Intergovernmental Partnership). Executive Order 13132 requires EPA to 
develop an accountable process to ensure ``meaningful and timely input 
by State and local officials in the development of regulatory policies 
that have federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.'' Under Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law unless the 
Agency consults with State and local officials early in the process of 
developing the proposed regulation.
    This rule will not have substantial direct effects on the States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government, as specified in Executive Order 13132, because it 
merely approves State rules implementing a Federal standard, and does 
not impose any new mandates on State or local governments. Thus, 
Executive Order 13132 does not apply to this action. In the spirit of 
Executive Order 13132, and consistent with EPA policy to promote 
communications between EPA and State and local governments, EPA 
specifically solicits comment on this proposed rule from State and 
local officials.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175 (65 FR 67249, November 9, 2000), requires EPA 
to develop an accountable process to ensure ``meaningful and timely 
input by tribal officials in the development of regulatory policies 
that have tribal implications.'' This proposed rule does not have 
tribal implications, as specified in Executive Order 13175. It will not 
have substantial direct effects on tribal governments. Thus, Executive 
Order 13175 does not apply to this rule. EPA specifically solicits 
additional comment on this proposed rule from tribal officials.

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

    Executive Order 13045 (62 FR 19885, April 23, 1997), applies to any 
rule that: (1) Is determined to be economically significant as defined 
under Executive Order 12866; and (2) concerns an environmental health 
or safety risk that we have reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency. This rule is 
not subject to Executive Order 13045 because it does not involve 
decisions intended to mitigate environmental health or safety risks.

[[Page 12784]]

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

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

I. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical. The EPA believes that VCS are inapplicable to this action. 
Today's action does not require the public to perform activities 
conducive to the use of VCS.

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

    Executive Order 12898 (59 FR 7629, February 16, 1994), establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    We have determined that this proposed rule, if finalized, will not 
have disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it proposes to 
approve State-adopted emission limits for all affected populations 
without having any disproportionately high and adverse human health or 
environmental effects on any population, including any minority or low-
income population. This proposed rule does not impose any new mandates, 
because EGUs in Nebraska are subject to the requirements of the 
Transport Rule independently of this proposed action. See 76 FR 82219, 
for an analysis of the implications of Executive Order 12898 in 
relation to EPA's proposed rule, ``Regional Haze: Revisions to 
Provisions Governing Alternatives to Source-Specific Best Available 
Retrofit Technology (BART) Determinations, Limited SIP Disapprovals, 
and Federal Implementation Plans'' (December 30, 2011).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Visibility, Interstate 
transport of pollution, Regional haze, Best available control 
technology.

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

    Dated: February 15, 2012.
Karl Brooks,
Regional Administrator, Region 7.

    Title 40, chapter I, of the Code of Federal Regulations is proposed 
to be amended as follows:

PART 52--[AMENDED]

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

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

Subpart CC--Nebraska

    2. Sections 52.1430-52.1434 remain reserved.
    3. Section 52.1435 is revised to read as follows:


Sec.  52.1435  Visibility protection.

    (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) and 51.308(e) for protection of 
visibility in mandatory Class I Federal areas.
    (b) Best Available Retrofit Technology for SO2 at Nebraska Public 
Power District, Gerald Gentleman Units 1 and 2. The requirements of 40 
CFR 51.308(e) with respect to emissions of SO<INF>2</INF> from Nebraska 
Public Power District, Gerald Gentleman Units 1 and 2 are satisfied by 
Sec.  52.1429.

[FR Doc. 2012-4991 Filed 3-1-12; 8:45 am]
BILLING CODE 6560-50-P


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