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[Federal Register Volume 77, Number 62 (Friday, March 30, 2012)]
[Rules and Regulations]
[Pages 19098-19109]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-7575]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2009-0783; FRL-9653-8]

Approval and Promulgation of Implementation Plans; Commonwealth 
of Kentucky; Regional Haze State Implementation Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing a limited approval and a limited disapproval 
of two revisions to the Kentucky state implementation plan (SIP) 
submitted by the Commonwealth of Kentucky through the Kentucky Energy 
and Environment Cabinet, Division of Air Quality (KYDAQ), on June 25, 
2008, and May 28, 2010. Kentucky's June 25, 2008, and May 28, 2010, SIP 
revisions address regional haze for the first implementation period. 
Specifically, these revisions address the requirements of the Clean Air 
Act (CAA or Act) and EPA's rules that require states to prevent any 
future and remedy any existing anthropogenic impairment of visibility 
in mandatory Class I areas (national parks and wilderness areas) caused 
by emissions of air pollutants from numerous sources located over a 
wide geographic area (also referred to as the ``regional haze 
program''). States are required to assure reasonable progress toward 
the national goal of achieving natural visibility conditions in Class I 
areas. EPA is finalizing a limited approval of Kentucky's June 25, 
2008, and May 28, 2010, SIP revisions to implement the regional haze 
requirements for Kentucky on the basis that these revisions, as a 
whole, strengthen the Kentucky SIP. Also in this action, EPA is 
finalizing a limited disapproval of these same SIP revisions because of 
the deficiencies in the Commonwealth's regional haze SIP revisions 
arising from the remand by the U.S. Court of Appeals for the District 
of Columbia Circuit (D.C. Circuit) to EPA of the Clean Air Interstate 
Rule (CAIR).

DATES: Effective Date: This rule will be effective April 30, 2012.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2009-0783. All documents in the docket 
are listed on the www.regulations.gov Web site. Although listed in the 
index, some information is not publicly available, i.e., Confidential 
Business Information or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically through www.regulations.gov or in hard 
copy at the Regulatory Development Section, Air Planning Branch, Air, 
Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 
30303-8960. EPA requests that if at all possible, you contact the 
person listed in the FOR FURTHER INFORMATION CONTACT section for 
further information. The Regional Office's official hours of business 
are Monday through Friday, 8:30 to 4:30, excluding federal holidays.

FOR FURTHER INFORMATION CONTACT: Michele Notarianni, Regulatory 
Development Section, Air Planning Branch, Air, Pesticides and Toxics 
Management Division, U.S. Environmental Protection Agency, Region 4, 61 
Forsyth Street SW., Atlanta, Georgia 30303-8960. Michele Notarianni can 
be reached at telephone number (404) 562-9031 and by electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What is the background for this final action?
II. What is EPA's response to comments received on this action?
III. What is the effect of this final action?
IV. Final Action
V. Statutory and Executive Order Reviews

I. What is the background for this final action?

    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 (e.g., sulfates, nitrates, 
organic carbon, elemental carbon, and soil dust), and their precursors 
(e.g., sulfur dioxide (SO2), nitrogen oxides 
(NOX), and in some cases, ammonia and volatile organic 
compounds (VOC)). Fine particle precursors react in the atmosphere to 
form fine particulate matter (PM2.5) which impairs 
visibility by scattering and absorbing light. Visibility impairment 
reduces the clarity, color, and visible distance that one can see. 
PM2.5 can also cause serious health effects and mortality in 
humans and contributes to environmental effects such as acid deposition 
and eutrophication.
    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 the ``prevention 
of any future, and the remedying of any existing, impairment of 
visibility in mandatory Class I areas which impairment results from 
manmade air pollution'' as a national goal. On December 2, 1980, EPA 
promulgated regulations to address visibility impairment in Class I 
areas that is ``reasonably attributable'' to a single source or small 
group of sources, i.e., ``reasonably attributable visibility 
impairment.'' See 45 FR 80084. These regulations represented the first 
phase in addressing visibility impairment. EPA deferred action on 
regional haze

[[Page 19099]]

that emanates from a variety of sources until monitoring, modeling, and 
scientific knowledge about the relationships between pollutants and 
visibility impairment were improved.
    Congress added section 169B to the CAA in 1990 to address regional 
haze issues. EPA promulgated a rule to address regional haze on July 1, 
1999 (64 FR 35713), the Regional Haze Rule (RHR). The RHR revised the 
existing visibility regulations to integrate into the regulation 
provisions addressing regional haze impairment and established a 
comprehensive visibility protection program for Class I areas. The 
requirements for regional haze, found at 40 CFR 51.308 and 51.309, are 
included in EPA's visibility protection regulations at 40 CFR 51.300-
309. The requirement to submit a regional haze SIP applies to all 50 
states, the District of Columbia, and the Virgin Islands. 40 CFR 
51.308(b) requires states to submit the first implementation plan 
addressing regional haze visibility impairment no later than December 
17, 2007.
    On June 25, 2008, and May 28, 2010, KYDAQ submitted revisions to 
Kentucky's SIP to address regional haze in the Commonwealth's and other 
states' Class I areas. On December 16, 2011, EPA published an action 
proposing a limited approval and a limited disapproval of Kentucky's 
two SIP revisions to address the first implementation period for 
regional haze. See 76 FR 78194. EPA proposed a limited approval of 
Kentucky's two SIP revisions to implement the regional haze 
requirements for Kentucky on the basis that these revisions, as a 
whole, strengthen the Kentucky SIP. Also in that action, EPA proposed a 
limited disapproval of these same SIP revisions because of the 
deficiencies in the Commonwealth's regional haze SIP revisions arising 
from the remand of CAIR to EPA by the D.C. Circuit. EPA received 
comments on the Agency's proposed actions for Kentucky's June 25, 2008, 
and May 28, 2010, SIP revisions. See section II of this rulemaking for 
a summary of comments received and EPA's responses to these comments. 
Also, detailed background information and EPA's rationale for the 
proposed actions are provided in EPA's December 16, 2011, proposed 
rulemaking.
    Following the remand of CAIR, EPA recently issued a new rule in 
2011 to address the interstate transport of NOX and 
SO2 in the eastern United States. See 76 FR 48208 (August 8, 
2011) (``the Transport Rule,'' also known as the Cross-State Air 
Pollution Rule (CSAPR)). On December 30, 2011, EPA proposed to find 
that the trading programs in the Transport Rule would achieve greater 
reasonable progress towards the national goal than would best available 
retrofit technology (BART) in the states in which the Transport Rule 
applies. See 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 yet taken final action on that rule.
    Also on December 30, 2011, the D.C. Circuit 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. 
In that order, the D.C. 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 
CAIR in the interim until the court rules on the petitions for review 
of the Transport Rule.

II. What is EPA's response to comments received on this action?

    EPA received three sets of comments on the December 16, 2011, 
rulemaking proposing a limited approval and limited disapproval of 
Kentucky's June 25, 2008, and May 28, 2010, SIP revisions. 
Specifically, the comments were received from the East Kentucky Power 
Cooperative (EKPC), the Utility Air Regulatory Group, and collectively 
from the Sierra Club and National Parks Conservation Association. Full 
sets of the comments provided by all of the aforementioned entities 
(hereinafter referred to as ``the Commenter'') are provided in the 
docket for today's final action. The docket for this action is 
available at www.regulations.gov under Docket Identification No. EPA-
R04-OAR-2009-0783. A summary of the comments and EPA's responses are 
provided below.
    Comment 1: The Commenter asserts that EPA does not have the 
authority under the CAA to issue a limited approval and concurrent 
limited disapproval of Kentucky's regional haze SIP. The Commenter 
contends that section 110(k) of the Act only allows EPA to fully 
approve, partially approve and partially disapprove, conditionally 
approve, or fully disapprove a SIP.
    Response 1: As discussed in the September 7, 1992, EPA memorandum 
cited in the notice of proposed rulemaking,\1\ although section 110(k) 
of the CAA may not expressly provide authority for limited approvals, 
the plain language of section 301(a) does provide ``gap-filling'' 
authority authorizing the Agency to ``prescribe such regulations as are 
necessary to carry out'' EPA's CAA functions. EPA may rely on section 
301(a) in conjunction with the Agency's SIP approval authority in 
section 110(k)(3) to issue limited approvals where it has determined 
that a submittal strengthens a given state SIP and that the provisions 
meeting the applicable requirements of the Act are not separable from 
the provisions that do not meet the Act's requirements. EPA has adopted 
the limited approval approach numerous times in SIP actions across the 
nation over the last twenty years. Limited approval and limited 
disapproval actions are appropriate here because EPA has determined 
that Kentucky's SIP revisions addressing regional haze, as a whole, 
strengthen the Commonwealth's SIP and because the provisions in the SIP 
revisions are not separable.
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    \1\ Processing of State Implementation Plan (SIP) Revisions, EPA 
Memorandum from John Calcagni, Director, Air Quality Management 
Division, OAQPS, to Air Division Directors, EPA Regional Offices I-
X, September 7, 1992, (``1992 Calcagni Memorandum'') located at 
http://www.epa.gov/ttn/caaa/t1/memoranda/siproc.pdf.
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    The Commenter notes that EPA's action ``directly contradicts the 
plain language of the Clean Air Act'' and cites several federal 
appellate court decisions to support its contention that section 110(k) 
of the Act limits EPA to ``a conditional approval, a partial approval 
and disapproval, or a full approval.'' However, adopting the 
Commenter's position would ignore section 301 and violate the `` 
`fundamental canon of statutory construction that the words of a 
statute must be read in their context and with a view to their place in 
the overall statutory scheme'* * *. A court must therefore interpret 
the statute `as a symmetrical and coherent regulatory scheme,'* * * and 
`fit, if possible, all parts into an harmonious whole.' '' FDA v. Brown 
& Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (quoting Davis v. 
Michigan Dept. of Treasury, 489 U.S. 803, 809 (1989), Gustafson v. 
Alloyd Co., 513 U.S. 561, 569 (1995), and FTC v. Mandel Brothers, Inc., 
359 U.S. 385, 389 (1959)). Furthermore, the cases cited by the 
Commenter did not involve challenges to a limited approval approach, 
and one of the cases, Abramowitz v. EPA, 832 F.2d 1071 (9th Cir. 1988) 
predates the 1990 CAA amendments enacting section 110(k).
    Comment 2: The Commenter states that EPA must partially disapprove

[[Page 19100]]

Kentucky's regional haze SIP submittal because it relied on CAIR, a 
rule that, in the Commenter's words, has been ``declared illegal, 
remanded and will come to an end.'' The Commenter also contends that 
EPA must specifically ``disapprove the LTS [long-term strategy] that 
rely upon emissions reductions predicted to result from CAIR to 
supplant NOX and SO2 BART analyses and 
determinations for EGUs [electric generating units] and otherwise meet 
RPGs [reasonably progress goals].''
    Response 2: In 2008, the D.C. Circuit remanded CAIR back to the 
Agency because the court believed that CAIR was inconsistent with the 
requirements of the CAA. Although CAIR may not remain in effect 
indefinitely, it is currently in force, and the Commonwealth's reliance 
on CAIR was fully consistent with EPA's regulations at the time that 
Kentucky developed its regional haze SIP. As explained in the December 
16, 2011, proposed rulemaking (76 FR 78194), EPA is taking a limited 
approval action because the revisions as a whole strengthen the SIP and 
because this action is consistent with the court's intention to keep 
CAIR temporarily in place. The limited approval results in an approval 
of the entire regional haze submission and all of its elements, 
preserving the visibility benefits offered by the SIP until CAIR is 
replaced by the Transport Rule and EPA demonstrates that the Transport 
Rule is better than BART. EPA is taking a limited disapproval action 
because the Agency cannot fully approve regional haze SIP revisions 
that rely on CAIR for emissions reduction measures for the reasons 
discussed in section IV of the December 16, 2011, proposed rulemaking. 
EPA's response to Comment 1, above, explains the Agency's authority to 
take limited approval and limited disapproval actions under the CAA.
    EPA disagrees with the Commenter's request for a partial 
disapproval of the SIP. Because the SIP provisions relying on CAIR, 
including the LTS, do not meet the applicable regional haze 
requirements and are not separable from the provisions that meet the 
applicable requirements of the Act, a partial disapproval would prevent 
any of the SIP's air quality benefits from being realized until EPA 
promulgated a FIP or approved a revised SIP to address the 
deficiencies. Furthermore, the two-year clock to promulgate a FIP to 
remedy the deficiencies is triggered by the limited disapproval just as 
it would be triggered by a partial disapproval. 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. See 
76 FR 82219. Based on this proposed finding, EPA also proposed a FIP 
for Kentucky in that action that would substitute participation in the 
trading programs under the Transport Rule for participation in CAIR for 
the purposes of satisfying regional haze requirements and would remedy 
the CAIR-related deficiencies discussed above.
    Comment 3: The Commenter identifies its opposition to EPA's 
December 30, 2011, proposed rulemaking to find that the Transport Rule 
is better than BART and to ``use the Transport Rule as an alternative 
to BART'' for Kentucky and other states subject to the Transport Rule. 
The Commenter incorporates its comments on that December 30, 2011, 
rulemaking ``by reference'' and outlines several of those comments, 
including its arguments that the Transport Rule is not ``better than 
BART'' and that EPA cannot rely on the Transport Rule as an 
``alternative program or measure to displace BART requirements for 
those BART-eligible sources in Transport Rule states.''
    Response 3: In today's rule, EPA is taking final action on the 
limited approval and limited disapproval of Kentucky's regional haze 
SIP. The Commenter correctly recognizes that EPA did not propose to 
find that participation in the Transport Rule is an alternative to BART 
in this rulemaking. As noted above, EPA made this proposed finding in a 
separate action on December 30, 2011, and the Commenter is merely 
reiterating and incorporating its comments on that separate action. 
These comments are therefore beyond the scope of this rulemaking and 
will be addressed, as appropriate, by EPA in its final action on the 
December 30, 2011, proposed rule.
    Comment 4: The Commenter believes that the 2018 emissions inventory 
is not approvable because Kentucky relied on the not-yet-approved 
Charlotte/Gastonia/Rock Hill 1997 8-hr ozone nonattainment area SIP; 
consent decrees for EKPC and American Electric Power (AEP) that allow 
for various compliance options; and the Industrial Boiler Maximum 
Achievable Control Technology (MACT) rule. The Commenter also believes 
that it is irrational and arbitrary for EPA to expect that the State 
will issue case-by-case MACT determinations through title V renewal 
permits in a timely manner.
    Response 4: EPA does not expect that minor inventory differences 
like those alleged, even if they occur, would affect the adequacy of 
Kentucky's regional haze SIP. The technical information provided in the 
record demonstrates that the emissions inventory in the SIP adequately 
reflects projected 2018 conditions and should be approved. Kentucky's 
2018 projections are based on the Commonwealth's technical analysis of 
the anticipated emissions rates and level of activity for EGUs, other 
point sources, nonpoint sources, on-road sources, and off-road sources 
based on their emissions in the 2002 base year, considering growth and 
additional emissions controls to be in place and federally enforceable 
by 2018. The emissions inventory used in the regional haze technical 
analyses was developed by Visibility Improvement State and Tribal 
Association of the Southeast (VISTAS) with assistance from Kentucky. 
The 2018 emissions inventory was developed by projecting 2002 emissions 
(the latest region-wide inventory available at the time the submittal 
was being developed) and applying reductions expected from federal and 
state regulations affecting the emissions of VOC and the visibility-
impairing pollutants NOX, particulate matter (PM), and 
SO2.
    To minimize the differences between the 2018 projected emissions 
used in the Kentucky regional haze submittal and what actually occurs 
in 2018, the RHR requires that the five-year review address any 
expected significant differences due to changed circumstances from the 
initial 2018 projected emissions, provide updated expectations 
regarding emissions for the implementation period, and evaluate the 
impact of these differences on RPGs. It is expected that individual 
projections within a statewide inventory will vary from actual 
emissions over a 16-year period. For example, some facilities shut down 
whereas others expand operations. Furthermore, economic projections and 
population changes used to estimate growth often differ from actual 
events; new rules are modified, changing their expected effectiveness; 
and methodologies to estimate emissions improve, modifying emissions 
estimates. The five-year review is a mechanism to assure that these 
expected differences from projected emissions are considered and their 
impact on the 2018 RPGs is evaluated.
    In the specific instances cited by the Commenter, the 
Commonwealth's analysis of projected emissions meets the requirements 
of the regional haze regulations and EPA guidance. In the cases of the 
two NOX sources in Charlotte (Philip Morris and Norandal), 
the projected emissions reductions have already occurred or 
installation of

[[Page 19101]]

control equipment is underway and the differences between projected 
emissions and actual emissions, if there are any, are likely to be too 
small to affect any of Kentucky's modeling. For the EGUs in Kentucky 
(EKPC's Spurlock and Cooper plants and AEP's Big Sandy Plant (Big 
Sandy)), the Commonwealth adjusted the Integrated Planning Model (IPM) 
projections that VISTAS used for the inventory projections to postpone 
the NOX and SO2 controls that IPM projected for 
2009 based on the terms of the consent decrees for EKPC and AEP.
    Regarding the changes to the Industrial Boiler MACT rule, VISTAS 
projected that the emissions reductions resulting from the original, 
vacated Industrial Boiler MACT rule would be 0.1 to 0.2 percent, 
depending on the pollutant, of the projected 2018 SO2, 
PM2.5, and coarse particulate matter (PM10) 
inventory. EPA has re-promulgated an Industrial Boiler MACT rule that 
is at least equivalent to the one vacated with regard to the issues 
raised by the Commenter, and EPA expects that this rule will result in 
lower emissions from the affected facilities than those originally 
projected for 2018. Further, as discussed in the December 16, 2011, 
proposed rulemaking, there are provisions for case-by-case controls 
should the Industrial Boiler MACT rule not be implemented pursuant to 
its currently anticipated schedule.
    Comment 5: The Commenter contends that EPA must disapprove the 
Kentucky SIP revisions with regard to the modeling if the ``modified 
version'' of EPA's Models-3/Community Multiscale Air Quality (CMAQ) 
model used by the Commonwealth has not been established to be 
consistent with Appendix W. The Commenter also states that the modeling 
uses meteorology from 2002 that is out of date and not representative 
of 2018 or 2064, especially considering climate change. According to 
the Commenter, EPA must therefore disapprove the modeling, require 
Kentucky to use recent meteorological data, and require that the 
modeling consider what impacts climate change will have on future 
visibility impairment, ozone formation, and other factors that 
influence visibility impairment such as relative humidity.
    Response 5: The modeling used by Kentucky is consistent with 
Appendix W. EPA's guidance does not require a specific modeling system 
for evaluating photochemical phenomena. EPA's CMAQ modeling system is 
one of the photochemical grid models available capable of addressing 
ozone, PM, visibility, and acid deposition on a regional scale. The 
photochemical model that VISTAS selected for this study was CMAQ 
version 4.5. VISTAS modified the module for secondary organic aerosols 
in an open and transparent manner that was also subjected to outside 
peer review (see Appendix C of the Kentucky regional haze SIP, located 
in the docket for this action, for more information on the model 
selection criteria). The procedures and analyses used in the CMAQ 
modeling were developed in consultation with the appropriate reviewing 
authorities and the affected federal land managers (FLMs).
    The modeling system based on the CMAQ photochemical model with a 
modified secondary aerosol module and used in the regional assessment 
of regional haze was developed and applied consistent with EPA's 
Guidance on the Use of Models and Other Analyses for Demonstrating 
Attainment of Air Quality Goals for Ozone, PM2.5, and 
Regional Haze, located at http://www.epa.gov/scram001/guidance/guide/final-03-pmrh-guidance.pdf, (EPA-454/B-07-002), April 2007, and the EPA 
document entitled, Emissions Inventory Guidance for Implementation of 
Ozone and Particulate Matter National Ambient Air Quality Standards 
(NAAQS) and Regional Haze Regulations, located at http://www.epa.gov/ttnchie1/eidocs/eiguid/index.html, EPA-454/R-05-001, August 2005, 
updated November 2005 (``EPA's Modeling Guidance'').
    VISTAS developed the technical analyses supporting Kentucky's 
regional haze SIP in the 2003-2006 time period; therefore, the use of 
2002 data is appropriate and consistent with the EPA memorandum 
authored by Lydia Wegman entitled, 2002 Base Year Emissions Inventory 
SIP Planning: 8-hr Ozone, PM2.5 and Regional Haze Programs, located at 
http://www.epa.gov/ttnchie1/eidocs/2002baseinven_102502new.pdf. With 
regard to using meteorology from any chosen year, the issue is whether 
the chosen year is representative, not whether it is ``out of date.'' 
VISTAS conducted an in-depth analysis which resulted in the selection 
of the entire year of 2002 (January 1-December 31) as the best period 
of meteorology available for conducting the CMAQ modeling for the 
chosen base year of 2002.
    Regarding the comment that the modeling must consider the impacts 
of climate change, the use of 2002 meteorology without adjustment is 
more appropriate and more consistent with existing agency guidance. EPA 
disagrees with the Commenter's position on this issue, a position that 
the Commenter has raised in prior Kentucky SIP rulemakings. As 
explained in more detail in those responses, modeling guidance is not 
yet available for the type of area-specific analysis of effects of 
climate change required for SIP planning. It is therefore premature to 
require a precise mathematical accounting in the SIP process for the 
effect of higher ambient temperatures due to climate change. The use of 
unadjusted meteorological input is consistent with how photochemical 
modeling demonstrations are developed for regulatory analyses. The 2002 
meteorological data is used to support the base and future year 
modeling. The rationale for its use in the base year is to test the 
model's performance in reproducing observed temporal and concentration 
spatial patterns. It is also used in the future year modeling for 2018 
to test how control strategy is sufficient address the conditions 
observed in the base year of 2002. The 2064 year is not included or 
addressed in the regional haze SIP in this round of submittals.
    Comment 6a: The Commenter states that Kentucky excluded the 
auxiliary boiler at Big Sandy from a BART analysis because it only 
operated for short periods of time during startup and emissions tests. 
According to the Commenter, EPA cites no authority for this 
proposition, mentions no enforceable conditions that limit Big Sandy's 
auxiliary boiler operations, and thus, EPA must disapprove the SIP for 
failure to have a BART analysis for Big Sandy's auxiliary boiler.
    Response 6a: Kentucky addressed the exclusion of this auxiliary 
unit in an approved modeling protocol. Tables B1 through B4 in Appendix 
L.5 of Kentucky's June 25, 2008, regional haze SIP revision present the 
operating data for the auxiliary boiler at Big Sandy for the period 
June 22, 2003, through September 24, 2006. During this time, the boiler 
had an average annual operating factor of 1.16 percent based on the 
facility's actual operating hours with a range of 0.3 percent in 2005 
to 2.68 percent for January to September 2006. With the exception of 
September 2003, when the boiler was operated for NOX SIP 
Call Low Mass Emitter certification testing and related operations 
checks (this testing is required every five years), and during October 
2004, when the boiler was operated periodically over a three-day period 
while both generating units were out of service, the normal operating 
pattern of the boiler is for it to only be fired at low load 
periodically for a few minutes to test its ability to be started and 
for use in starting up Unit 2. EPA agrees with Kentucky that this

[[Page 19102]]

data justifies not considering this boiler in the BART analysis.
    Comment 6b: The Commenter contends that the BART analysis for Big 
Sandy units 1 and 2 fails to consider: Wet electrostatic precipitators 
(ESPs); switching to a lower sulfur coal either entirely or as a blend 
or co-firing natural gas or biomass; a circulating fluid bed (CFB) 
scrubber; a spray dry absorption (SDA) scrubber; installing a fabric 
filter (FF); upgrading the current ESPs to increase the size and/or 
change from wire to rigid discharge electrode; changing the operation 
of the air preheater; or trona injection coupled with replacing the ESP 
with a new ESP. Because the BART analysis allegedly failed to consider 
all available retrofit technologies, the Commenter states that EPA must 
disapprove the SIP with regard to the PM BART determination for Big 
Sandy. The Commenter also believes that EPA must disapprove the SIP 
because it does not contain a ``firm'' closure date for unit 1; an 
enforceable deadline for the installation of the flue gas 
desulfurization (FGD) on unit 2 and the ammonia injection on unit 1; 
and an emissions limit for condensable PM from both units.
    Response 6b: As stated in Appendix Y of 40 CFR part 51, available 
retrofit control options are those air pollution control technologies 
with a practical potential for application to the emissions unit and 
the regulated pollutant under evaluation. In identifying ``all'' 
options, a state must identify the most stringent option and a 
reasonable set of options for analysis that reflects a comprehensive 
list of available technologies. It is not necessary to list all 
permutations of available control levels that exist for a given 
technology; the list is complete if it includes the maximum level of 
control that each technology is capable of achieving. Furthermore, EPA 
does not consider BART as a requirement to redesign the source when 
considering available control alternatives. For example, where the 
source subject to BART is a coal-fired EGU, EPA does not require the 
BART analysis to consider building a natural gas-fired electric turbine 
although the turbine may be inherently less polluting on a per unit 
basis.
    AEP performed a full BART analysis for particulates, with its 
primary focus on the condensable fraction due to the minimal impact 
from the primary particulates since both units are currently equipped 
with ESPs for primary particulate control. AEP evaluated five 
combinations of condensable particulate control options for the two 
units. For unit 1, AEP only considered injecting ammonia or injecting 
trona, a mineral composed primarily of sodium and carbonate, for the 
reduction of inorganic condensables. For unit 2, AEP considered 
injecting ammonia, injecting trona, or installing a wet FGD system.
    In addition, AEP determined that the options involving injecting 
trona on either unit at Big Sandy were technically infeasible. Based on 
the experience of AEP at units where sorbents are injected for the 
reduction of inorganic condensables, the presently installed ESPs at 
both Big Sandy units are unsuitable for trona injection.
    For Big Sandy units 1 and 2, the company agreed to install ammonia 
injection controls on unit 1 and a FGD on unit 2. KYDAQ reviewed the 
source's BART modeling determination and available data. Considering 
the statutory factors, Kentucky determined that the controls proposed 
by AEP are reasonable and appropriate for addressing condensable 
particulates and their impacts on nearby Class I areas. EPA agrees with 
Kentucky's analyses and conclusions. EPA has reviewed the 
Commonwealth's analyses and concluded that they were conducted in a 
manner that is consistent with EPA's BART Guidelines and EPA's Air 
Pollution Control Cost Manual (http://www.epa.gov/ttncatc1/products.html#cccinfo).
    Regarding AEP's decision not to evaluate installation of a wet FGD 
on unit 1 because of its age, EPA would generally not rely on an 
assertion that a unit would shut down without a legally enforceable 
condition requiring shutdown of the unit at issue. Kentucky has 
determined that BART for unit 1 is ammonia injection. As noted in EPA's 
December 16, 2011, proposed rulemaking, on June 9, 2011, AEP announced 
that Big Sandy unit 1 would be retired by December 31, 2014, and unit 2 
would be rebuilt as a natural gas-fired plant by December 31, 2015. 
Since that announcement, AEP modified its plans to convert unit 2 from 
coal to gas power. It now plans to construct a dry FGD or ``scrubber'' 
system on unit 2, the plant's 800-megawatt electricity generation unit. 
However, AEP still plans to shut down unit 1 (the older of the two; 
rated at 278 megawatts) and to retire it at the end of 2014. On 
December 5, 2011, the company made a formal filing of an Application 
for a Certificate of Public Convenience and Necessity before the 
Kentucky Public Service Commission, which must approve the project and 
investment. As the company continues the required proceedings for 
closure of unit 1, requiring additional analysis would not likely 
change the conclusions of the BART analysis. In any case, if the 
decision to close unit 1 should be reversed, the requirements for an 
ammonia scrubber remain in place.
    Comment 6c: According to the Commenter, EPA should clarify whether 
the 99 percent removal efficiency for the existing ESP at the E.ON U.S. 
Mill Creek Station (Mill Creek) is for filterable or condensable PM. If 
it is filterable, the Commenter believes that it is arbitrary to base a 
BART analysis on the current removable rate for filterable PM when the 
BART analysis is supposed to address condensable PM. The Commenter also 
states that the BART analysis rejects pulse jet fabric filter (PJFF) 
and wet ESP based solely on the incremental cost and admits that the 
average cost effectiveness for sorbent injection on all four units is 
about the same. ``Apparently, the BART analysis rejects sorbent 
injection on units 1 and 2 because it would cost more to install 
pollution controls on all four units than on just two units. * * * 
[t]his is not a rationale basis for rejecting sorbent injection in 
units 1 and 2.'' The Commenter further contends that EPA must 
disapprove Kentucky's regional haze SIP with regard to the PM BART 
analysis for Mill Creek since the analysis fails to consider: Switching 
to a lower sulfur coal either entirely or as a blend or co-firing 
natural gas or biomass; CFB scrubbers; SDA scrubbers; upgrading 
existing scrubbers; upgrading the current ESPs to increase the size 
and/or change from wire to rigid discharge electrode; or changing the 
operation of the air preheater.
    Response 6c: The existing ESP removal efficiency referred to by the 
Commenter is for filterable particulates. These filterable emissions, 
which are 99 percent controlled, are a substantial portion of the 
facility's potential PM emissions and maintaining these limits for 
regional haze is appropriate. For the two units where additional PM 
controls are being adopted for BART, the Commonwealth has adopted 
additional emissions limits to handle condensable PM (primarily in the 
form of SO3/H2SO4), to address those 
emissions not controlled by the filterable emissions limit. As 
documented in Kentucky's May 28, 2010, revision to its regional haze 
SIP, the title V permitted BART emissions limits for Mill Creek Units 3 
and 4 are 64.3 pounds per hour (lb/hr) and 76.5 lb/hr, respectively, 
for sulfuric acid mist (H2SO4). These are new 
BART limits for the two units for which controls on condensable 
particulates are being installed.
    Regarding the technologies considered in the BART analysis for Mill 
Creek, as stated in Appendix Y of

[[Page 19103]]

40 CFR part 51, available retrofit control options are those air 
pollution control technologies with a practical potential for 
application to the emissions unit and the regulated pollutant under 
evaluation. In identifying ``all'' options, a state must identify the 
most stringent option and a reasonable set of options for analysis that 
reflects a comprehensive list of available technologies. It is not 
necessary to list all permutations of available control levels that 
exist for a given technology; the list is complete if it includes the 
maximum level of control that each technology is capable of achieving. 
Furthermore, EPA does not consider BART as a requirement to redesign 
the source when considering available control alternatives. For 
example, where the source subject to BART is a coal-fired EGU, EPA does 
not require the BART analysis to consider building a natural gas-fired 
electric turbine although the turbine may be inherently less polluting 
on a per unit basis. Similarly, EPA does not interpret the CAA or the 
RHR as requiring states to consider limiting the type of coal burned as 
a BART control technology.
    For the Mill Creek BART analysis, the Commonwealth concluded that 
the technically feasible technologies for evaluation in accordance with 
Step 2 of the BART analysis included the existing cold-side ESP and 
PJFF for PM, and sorbent injection and a wet ESP for sulfates. From 
this list of technically feasible control technologies, the existing 
cold-side ESP is already in place at all four units at Mill Creek. 
Therefore, only the three additional control technologies were 
subjected to the remaining engineering analysis process to determine 
BART technologies for visibility modeling. The existing cold-side ESPs 
at all four units at Mill Creek are already demonstrating high PM 
removal efficiencies of 99 percent, and all four units are already 
equipped with wet FGD systems for SO2 removal, limiting the 
additional available options for sulfite (SO3) condensable 
particulate control. The incremental cost effectiveness of PJFF and a 
wet ESP ranged from $20,380 to $52,190 per ton of PM reduced, and these 
options were not considered further. Sorbent injection was more cost 
effective, ranging from $4,293 to $5,017 per ton of PM reduced.
    As discussed in the December 16, 2011, proposed rulemaking, 
Kentucky determined that BART for Mill Creek is the installation of 
sorbent injection controls on the larger units 3 and 4. Kentucky did 
not require BART controls on units 1 and 2 because controls on these 
units would nearly double the cost (an additional $8.8 million beyond 
the $10.5 million for controls on units 3 and 4) for a visibility 
improvement of 0.36 deciview (compared with a 0.83 deciview improvement 
from controlling units 3 and 4). The Commonwealth therefore concluded 
that controls on units 1 and 2 were not as cost effective.
    As is noted in the BART guidelines, the Commonwealth has discretion 
in assigning the proper weight and significance to each of the five 
statutory factors that it must consider in making a BART determination. 
EPA has reviewed the Commonwealth's analyses and concluded they were 
conducted in a manner that is consistent with EPA's BART Guidelines and 
EPA's Air Pollution Control Cost Manual (http://www.epa.gov/ttncatc1/products.html#cccinfo). Therefore, Kentucky's determination reflects a 
reasonable application of EPA's guidance to these sources.
    Comment 6d: The Commenter contends that EPA must disapprove the 
BART determinations for EKPC's Spurlock and Cooper Stations since the 
BART analysis provides no limit on condensable PM and fails to consider 
switching to a lower sulfur coal either entirely or as a blend; co-
firing natural gas or biomass; or changing the operation of the air 
preheater.
    Response 6d: Regarding the technologies considered in the BART 
analyses for Spurlock and Cooper, as stated in Appendix Y of 40 CFR 
part 51, available retrofit control options are those air pollution 
control technologies with a practical potential for application to the 
emissions unit and the regulated pollutant under evaluation. In 
identifying ``all'' options, a state must identify the most stringent 
option and a reasonable set of options for analysis that reflects a 
comprehensive list of available technologies. It is not necessary to 
list all permutations of available control levels that exist for a 
given technology; the list is complete if it includes the maximum level 
of control each technology is capable of achieving. Furthermore, EPA 
does not consider BART as a requirement to redesign the source when 
considering available control alternatives. For example, where the 
source subject to BART is a coal-fired EGU, EPA does not require the 
BART analysis to consider building a natural gas-fired electric turbine 
although the turbine may be inherently less polluting on a per unit 
basis.
    EKPC evaluated three options and agreed to install the top ranking 
option of wet FGD for SO2 control and wet ESP for PM control 
for both Spurlock and Cooper. These controls are consistent with those 
in a consent decree that EKPC entered into with EPA that will address 
condensable particulate emissions and other visibility impairing 
pollutants. Kentucky subsequently modified this BART determination in 
its May 28, 2010, regional haze SIP revision with a comparably 
effective option at Cooper Units 1 and 2 of dry FGD and FF emissions 
controls for the wet FGD and wet ESP controls. EPA believes that 
Kentucky has appropriately addressed BART for this facility.
    Comment 6e: For the Tennessee Valley Authority's (TVA's) Paradise 
Fossil Plant (TVA Paradise), the Commenter contends that the BART 
analysis fails to consider switching to a lower sulfur coal (either 
entirely or as a blend); co-firing natural gas or biomass; a wet FGD; a 
dry CFB scrubber; a SDA scrubber; or changing the operation of the air 
preheater. For these reasons, the Commenter believes that EPA must 
disapprove this BART determination.
    Response 6e: Regarding the technologies considered in the BART 
analysis for TVA Paradise, as stated in Appendix Y of 40 CFR part 51, 
available retrofit control options are those air pollution control 
technologies with a practical potential for application to the 
emissions unit and the regulated pollutant under evaluation. In 
identifying ``all'' options, a state must identify the most stringent 
option and a reasonable set of options for analysis that reflects a 
comprehensive list of available technologies. It is not necessary to 
list all permutations of available control levels that exist for a 
given technology; the list is complete if it includes the maximum level 
of control that each technology is capable of achieving. Furthermore, 
EPA does not consider BART as a requirement to redesign the source when 
considering available control alternatives. For example, where the 
source subject to BART is a coal-fired EGU, EPA does not require the 
BART analysis to consider building a natural gas-fired electric turbine 
although the turbine may be inherently less polluting on a per unit 
basis.
    All three units at TVA Paradise are already equipped with FGD 
systems. These systems are in the process of being upgraded, and TVA 
believes that the work should be completed by December 31, 2012. The 
BART analysis focused on control of condensable PM (primarily in the 
form of SO3/H2SO4). TVA concluded that 
neither of the two control options evaluated (wet ESP and hydrated lime 
injection) were cost effective, and the Commonwealth concurred. 
However, as discussed in the December 16, 2011, proposed

[[Page 19104]]

rulemaking, TVA plans to install hydrated lime injection controls on 
TVA Paradise units 1-3 to mitigate opacity due to SO3 
emissions, and these controls are required to be in place pursuant to 
the December 15, 2009, title V permit for the facility. EPA therefore 
believes that Kentucky has appropriately addressed BART for this 
facility.
    Comment 6f: The Commenter makes several statements regarding PM 
BART emissions limits. First, the Commenter believes that emissions 
limits at all ``subject to BART'' units must have an averaging time, 
testing, and monitoring for condensable PM that assures compliance with 
the condensable PM limits at all times, including during startup, 
shutdown, and malfunction. Second, the Commenter asserts that all 
emissions limits contained in consent decrees must be added to the SIP 
because consent decrees can be modified without public participation 
and are eventually terminated. Third, the Commenter explains that, in 
its opinion, PM BART emissions limits must be effective as soon as 
practical, and that EPA must determine when this is. The Commenter goes 
on to state that EPA ``cannot just say it has to be effective as soon 
as practical'' since this is ``too vague to be enforceable.'' For units 
using existing pollution controls, ``the emissions limits should be 
effective on the date of publication of the final rule. For other 
units, EPA should determine what is the quickest time the new equipment 
can be installed and fully operational.'' For these reasons, the 
Commenter claims that EPA must disapprove the SIP submittal.
    Response 6f: The adopted BART emissions limits all have testing and 
monitoring requirements that will be included in the respective title V 
operating permit. The consent decrees stipulate these requirements and 
explicitly address how startup, shutdown, and malfunctions are to be 
considered. These agreements also require that the consent decrees 
remain in force until the title V permit is issued. Since these limits 
have been formally adopted by Kentucky in its regional haze SIP, these 
requirements will become federally enforceable once EPA approves the 
SIP revisions. The title V permit, which documents all enforceable 
provisions, will also be updated at the appropriate time. All BART 
emissions limits are contained in the SIP, including the limits that 
also appear in consent decrees, and therefore meet the requirement that 
the limits be federally enforceable. Regarding BART effective dates, 40 
CFR 51.308(e)(1)(iv) states that ``* * * each source subject to BART be 
required to install and operate BART as expeditiously as practicable, 
but in no event later than 5 years after approval of the implementation 
plan revision,'' and Kentucky adopted requirements consistent with this 
regulation.
    Comment 7: The Commenter suggests that EPA should ``issue a new 
proposal and hold a new public comment period'' because the ``Federal 
Register notice of EPA's proposed rule does not include the actual 
language which EPA is proposing to include in the Kentucky SIP.''
    Response 7: EPA disagrees with the Commenter's position on the 
content of EPA's December 16, 2011, proposed rulemaking, a position 
that the Commenter has raised in several prior SIP rulemakings. Neither 
the CAA nor the Administrative Procedure Act mandates that the proposed 
and final Federal Register rulemaking actions include the complete text 
of the proposed SIP revision. The December 16, 2011, proposed 
rulemaking satisfies the notice requirements by providing citations to 
the rules at issue, offering the SIP revisions for public review, and 
describing the subjects and issues involved in the SIP revisions. 
Publication in the Federal Register is costly and resource intensive, 
and EPA makes every effort to provide key information in proposal 
notices while at the same time using Agency resources efficiently. EPA 
drafts rulemaking notices to enable public understanding of the 
subjects and issues at hand. EPA included the complete text of the SIP 
revisions in the docket at the time that it issued the proposed rule 
and it remains available for public view. The docket for this action is 
available at www.regulations.gov under Docket Identification No. EPA-
R04-OAR-2009-0783. In addition, the public may also contact the listed 
contacts for any further information or questions.
    Comment 8: The Commenter contends that Kentucky's regional haze SIP 
must require revisions to address Reasonably Attributable Visibility 
Impairment (RAVI) within three years of a FLM certifying visibility 
impairment and that the Commonwealth's commitment to address RAVI 
should a FLM certify visibility impairment is not enough. The Commenter 
also contends that the SIP must require Kentucky to submit a report to 
EPA on progress towards the RPGs and that the Commonwealth's commitment 
to do so is not sufficient.
    Response 8: The SIP revisions do not address RAVI requirements 
since this was the subject of previous rulemakings (see the response to 
Comment 11). EPA's visibility regulations direct states to coordinate 
their RAVI LTS provisions with those for regional haze and the RAVI 
portion of a SIP must address any integral vistas identified by the 
FLMs. However, as stated in the December 16, 2011, proposed rulemaking, 
the FLMs have not identified any integral vistas in Kentucky, the Class 
I area in Kentucky is not experiencing RAVI, and no Kentucky sources 
are affected by the RAVI provisions. Thus, the June 25, 2008, Kentucky 
regional haze SIP revisions did not explicitly address the coordination 
of the regional haze with the RAVI LTS although Kentucky made a 
commitment to address RAVI should the FLM certify visibility impairment 
from an individual source. EPA finds that Kentucky's regional haze SIP 
appropriately supplements and augments the Commonwealth's RAVI 
visibility provisions to address regional haze by updating the LTS 
provisions as Kentucky has done.
    Regarding reports on progress toward RPGs, 40 CFR 51.308(g) 
requires states to ``submit a report to [EPA] every 5 years evaluating 
progress towards the reasonable progress goal for each mandatory Class 
I Federal area located within the State and in each mandatory Class I 
Federal area located outside the State which may be affected by 
emissions from within the State.'' It is unnecessary for a state rule 
to make this enforceable since it is part of EPA's regional haze 
regulations (i.e., an enforceable requirement). The progress reports 
must be in the form of a SIP revision and are therefore subject to the 
requirements for SIP revisions in the CAA and to EPA's review and 
approval. The commitments in Kentucky's SIP are consistent with the 
regulatory requirements for this provision.
    Comment 9a: The Commenter claims that Kentucky's regional haze SIP 
does not explain how monitoring data and other information is used to 
determine the contribution of emissions from within the Commonwealth to 
regional haze visibility impairment at Class I areas within and outside 
Kentucky. Therefore, the Commenter believes that EPA must disapprove 
Kentucky's regional haze SIP.
    Comment 9b: The Commenter states that the SIP must clearly state 
the method by which the Commonwealth intends to report visibility 
modeling to the EPA. Additionally, the Commenter states that if 
Kentucky plans to rely on the referenced Visibility Information 
Exchange Web System (VIEWS) Web site for reporting, the SIP must 
clearly state, not imply, that Kentucky intends to use the Web site as 
its way of reporting visibility monitoring data. ``If

[[Page 19105]]

Kentucky intends to use another method of reporting visibility, the 
proposal need to explain this. If Kentucky intends to use this web 
site, it is not sufficient that Kentucky is `encouraging' VISTAS to 
maintain this web site.'' The Commenter also states that the Kentucky 
SIP needs to have an enforceable mechanism to transmit the Interagency 
Monitoring of Protected Visual Environments (IMPROVE) data to EPA as 
well as an enforceable mechanism to ensure that the IMPROVE data is 
continually gathered. The ``SIP must include an enforceable requirement 
that the data is gathered by Kentucky unless it is gathered by other 
entities such as VISTAS and the National Park Service.'' The Commenter 
concludes by stating that ``EPA must disapprove the SIP submittal in 
this regard because such an enforceable requirement is missing.''
    Response 9a, 9b: The primary monitoring network for regional haze 
in Kentucky is the IMPROVE network. There is currently one IMPROVE site 
in the Commonwealth, which serves as the monitoring site for Mammoth 
Cave National Park in Kentucky. IMPROVE monitoring data from 2000-2004 
serves as the baseline for the regional haze program, and is relied 
upon in the Kentucky regional haze submittal. Monitoring data is 
different from emissions data or analyses conducted to attribute 
contribution. These analyses are part of the ten-year planning period 
updates conducted by the states.
    In its SIP revisions, Kentucky states its intention to rely on the 
IMPROVE network for complying with the regional haze monitoring 
requirement in EPA's RHR for the current and future regional haze 
implementation periods. Data produced by the IMPROVE monitoring network 
will be used nearly continuously for preparing the five-year progress 
reports and the 10-year SIP revisions, each of which relies on analysis 
of the preceding five years of data. The VIEWS Web site has been 
maintained by VISTAS and the other regional planning organizations 
(RPOs) to provide ready access to the IMPROVE data and data analysis 
tools. Kentucky is encouraging VISTAS and the other RPOs to maintain 
the VIEWS or a similar data management system to facilitate analysis of 
the IMPROVE data. Kentucky cannot legally bind federal and state 
legislatures to continue to fund the monitoring program for regional 
haze. Kentucky's SIP adequately addresses this provision and explains 
how monitoring data and other information has been and will be used to 
determine the contribution of emissions from within the Commonwealth to 
regional haze visibility impairment at Class I areas.
    Comment 9c: According to the Commenter, there is no indication that 
Kentucky developed an emissions inventory for the most recent year for 
which data are available (2008, 2009 or 2010), and EPA must disapprove 
the SIP on this point. The Commenter also states that there are no 
requirements for reporting, recordkeeping, and other measures necessary 
to assess and report on visibility, and therefore, EPA must also 
disapprove on this point.
    Response 9c: There are no requirements relating to reporting and 
recordkeeping of emissions to assess and report on visibility other 
than those that relate to the submittal the five-year review. The 
analyses performed in support of Kentucky's SIP revisions were 
conducted in the 2003-2006 time period. EPA therefore finds the use of 
the 2002 emissions inventory to be appropriate. The necessary data to 
assess the SIP submission are contained in the appendices to the 
Commonwealth's 2008 regional haze submittal. For the more voluminous 
data such as modeling files, please see Appendix I of the 2008 SIP 
submittal for data access instructions. The next inventory submittal 
will be part of the five-year review, and VISTAS has been working with 
its states to develop a comprehensive baseline inventory (expected to 
be for 2007 and updated with appropriate additional later information) 
which will be part of the five-year submittal. The record demonstrates 
that Kentucky's SIP adequately addresses the emissions inventory 
requirement.
    Comment 10: The Commenter states that Kentucky did not adequately 
respond to requests from Maine, Vermont, New Jersey, and New Hampshire 
for a 28 percent reduction in SO2 emissions from non-EGU 
sources and a 90 percent reduction in SO2 emissions from 14 
Kentucky EGUs. With regard to the EGUs, the Commenter further explains 
that Kentucky's assertion that 93 percent of these 14 EGUs have or will 
have SO2 controls by 2015 or earlier is flawed because 
having SO2 controls on EGUs does not necessarily mean that 
those EGUs will achieve a 90 percent reduction in SO2 
emissions. The Commenter also asserts that Kentucky did not establish 
that having SO2 controls on these EGUs will address 
Kentucky's apportioned emissions reductions under 40 CFR 
51.308(d)(3)(ii)-(iii) for the Class I areas in Maine, Vermont, New 
Jersey, and New Hampshire. For these reasons, the Commenter believes 
that EPA must disapprove Kentucky's SIP with regard to its obligations 
under 40 CFR 51.308(d)(3) to address visibility impacts in these 
states.
    Response 10: The letters sent in 2007 from Maine, Vermont, New 
Jersey, and New Hampshire, (states in the Mid-Atlantic/Northeast 
Visibility Union (MANE-VU) RPO), invite Kentucky to participate in 
future consultation meetings because visibility impacts from Kentucky's 
sources exceeded one of the minimum thresholds used by MANE-VU to 
identify sources with potential visibility impacts at one or more of 
the Class I areas in the MANE-VU region. These thresholds for 
reasonable control consideration were used to identify states to invite 
to the first set of inter-RPO consultation meetings. The states' 
letters cite to the report entitled, Contributions to Regional Haze in 
the Northeast and Mid-Atlantic United States, NESCAUM, August 2006, 
http://www.nescaum.org/documents/contributions-to-regional-haze-in-the-northeast-and-mid-atlantic--united-states. In accordance with 40 CFR 
51.308(d)(i), Kentucky participated in consultation calls and meetings 
in 2007 as requested, and in the Commonwealth's final SIP submittal 
dated June 25, 2008, Kentucky provided its final response regarding the 
MANE-VU requests. Kentucky received no adverse comments from any of the 
MANE-VU states during the public comment period on its proposed 
regional haze SIP, nor did the Commonwealth receive any additional 
correspondence from these states once Kentucky submitted its final SIP 
to EPA.
    Kentucky's position is that the significant existing and expected 
EGU emissions controls more than adequately respond to the EGU and non-
EGU requests from the MANE-VU RPO. Kentucky provided supporting 
information to address its apportionment of emissions reductions in 
Appendix H of its SIP; and in Appendix H.4, the Commonwealth documents 
the existing and planned controls for the Commonwealth's EGUs, 
including those EGUs identified by MANE-VU. These EGU SO2 
controls reflect what is predicted or has occurred to address CAIR 
requirements. Kentucky demonstrated in its SIP that no additional 
SO2 controls beyond CAIR are reasonable for reasonable 
progress for the first implementation period. Kentucky states in its 
SIP that it plans to assess the EGU controls predicted under CAIR with 
what is actually occurring at these sources for the first periodic 
report due five years after initial submittal of the first regional 
haze SIP (i.e., June 2013).

[[Page 19106]]

    As explained in EPA's December 16, 2011, proposed rulemaking, prior 
to the CAIR remand by the D.C. Circuit, EPA believed the Commonwealth's 
demonstration that no additional controls beyond CAIR are reasonable 
for SO2 for affected Kentucky EGUs for the first 
implementation period to be acceptable. However, the Commonwealth's 
demonstration regarding CAIR and reasonable progress for EGUs, and 
other provisions in the Kentucky regional haze SIP, are based on CAIR, 
and thus, the Agency is issuing a limited approval of the Kentucky 
regional haze SIP revisions.
    Regarding non-EGU SO2 emissions, the Commonwealth 
established a threshold to determine which emissions units would be 
evaluated for reasonable progress controls, and found no additional 
SO2 controls for these sources are reasonable for the first 
implementation period. EPA believes that Kentucky has adequately 
addressed its apportionment of emissions reductions determined through 
the VISTAS process, and shared via consultation with the other RPOs, in 
accordance with 40 CFR 51.308(d)(3).
    Comment 11: The Commenter states that there is no evidence that 
Kentucky's regional haze SIP revisions comply with the requirement in 
40 CFR 51.306(d) that the LTS provides for review of the impacts from 
any new major stationary source or major modifications on visibility in 
any mandatory Class I area in accordance with 40 CFR 51.307, 51.166, 
51.160 and any binding guidance insofar as these provisions pertain to 
protection of visibility. The Commenter also contends that EPA must 
therefore disapprove Kentucky's SIP revisions in part with regard to 40 
CFR 51.306(d) and the provisions cited therein.
    Response 11: The Kentucky regional haze SIP revisions subject to 
this rulemaking address the regional haze requirements of 40 CFR 51.308 
whereas the regulation cited by the Commenter, 40 CFR 51.306(d), is 
specific to the LTS requirements for RAVI. Furthermore, as identified 
in footnote 18 \2\ of EPA's December 16, 2011, proposed rulemaking, 
Kentucky has already addressed the new source review requirements for 
visibility (40 CFR 51.307) and RAVI LTS (40 CFR 51.306) in its SIP and 
EPA has fully approved these provisions.
---------------------------------------------------------------------------

    \2\ The Kentucky visibility SIP revisions to address Prevention 
of Significant Deterioration (PSD) provisions were submitted to EPA 
on February 20, 1986, and approved by EPA September 1, 1989 (54 FR 
36311). The Commonwealth's visibility plan provisions were submitted 
on August 31, 1987, and approved July 12, 1988 (53 FR 26256). The 
nonattainment NSR provisions were submitted July 14, 2004, and 
approved July 11, 2006 (71 FR 38990).
---------------------------------------------------------------------------

    Comment 12: The Commenter contends that EKPC agreed to install wet 
FGDs and wet ESPs at Spurlock and Cooper Stations pursuant to a BART 
analysis, and not pursuant to EKPC's July 2, 2007, consent decree with 
the United States (United States v. EKPC, 04-34-KSF (E.D. Ky)). The 
Commenter requests that EPA ``clarify the language in the Proposed 
Rule'' accordingly.
    Response 12: The consent decree was a separate action from the BART 
determination, and EPA did not intend to imply that the consent decree 
was entered into to address regional haze. Kentucky structured its SIP 
to meet the BART requirements, recognizing the existence of similar 
requirements in the consent decrees. EPA relied on the following 
language found in the Kentucky regional haze SIP revision (see the May 
28, 2010, revised Kentucky regional haze SIP revision, Table 7.5.3-1):
`` * * * EKPC per a consent decree and for BART will install a wet FGD 
and wet ESP at EKPC Spurlock Units 1 and 2 that will address 
condensable particulate emissions and other visibility impairing 
pollutants'', and

`` * * * EKPC per a consent decree and for BART will install a dry FGD 
and fabric filtration at EKPC Cooper Units 1 and 2 that will address 
condensable particulate emissions and other visibility impairing 
pollutants.''
    Comment 13: According to the Commenter, EPA's December 16, 2011, 
proposed rulemaking incorrectly states that the EKPC consent decree 
provides for a filterable PM emissions rate of 0.03 pound per million 
British Thermal Unit (lb/MMBtu), and therefore, EPA should delete any 
reference indicating that the consent decree provides for this 0.03 lb/
MMBtu rate for any EKPC unit and any references to this emissions rate.
    Response 13: EPA reviewed the consent decree and the SIP language 
again in response to this comment. EPA concludes that the Commenter is 
correct that the consent decree provided other alternatives to 
developing a filterable particulate limit. However, Kentucky's regional 
haze SIP is explicit in several instances that EKPC identified, and the 
Commonwealth accepted, the 0.03 lb/MMBtu limit as BART. EPA points the 
Commenter to the following statements in Kentucky's regional haze SIP 
revisions:
``* * * A 07/02/07 EKPC consent decree provides a filterable PM 
emission rate of 0.030 lb/MMBtu, which was utilized to demonstrate 
modeled visibility improvement. Emission limits and controls will be 
included in the source's Title V Permit as appropriate or on renewal.'' 
(May 28, 2010, revised SIP revision, Table 7.5.3-2).

`` * * * application of WFGD/ESP controls to Spurlock Units 1 and 2 and 
Cooper Units 1 and 2, with a filterable PM limit of 0.03 lb/MMBtu, 
mitigates any adverse visibility impacts in Class I areas within 300 km 
of each source. In accordance with the draft EPA consent decree, EKPC 
will apply these controls * * *.'' (Appendix L.11, p.17 (EKPC BART 
determination submittal, included as part of the Kentucky SIP 
revision)).

    ``In the 2007 BART Submittal, EKPC determined that a WFGD/WESP 
control train capable of achieving 0.030 lb/mmBtu filterable PM and 
0.052lb/mmBtu total PM was BART for Cooper Units 1 and 2. EKPC is 
requesting that it be allowed to substitute a DFGD/FF control train 
capable of achieving 0.030 lb/mmBtu filterable PM and 0.045 lb/mmBtu 
total PM for the WFGD/WESP control train previously approved * * *'' 
(Appendix L.11, p. 197 (March 18, 2009 submittal from EKPC to KYDAQ)).

``* * * Therefore, application of DFG/DIFF controls to Cooper Units 1 
and 2, with a filterable PM limit of 0.030 lb/mmBtu, mitigates any 
adverse visibility impact in Class I areas within 300 km of each source 
and fulfills the BART requirements * * *'' Appendix L.11, p. 200.

    Accordingly, EPA considers the 0.03 lb/MMBtu filterable PM 
emissions limit to be an appropriately adopted and enforceable SIP 
limit and part of the BART determination for EKPC Cooper Units 1 and 2 
and Spurlock Units 1 and 2.
    Comment 14: The Commenter contends that EPA should fully approve 
Kentucky's regional haze SIP revisions because they are consistent with 
EPA's regional haze rules. In support of its position, the Commenter 
states that the regulations allowing states to rely on CAIR to satisfy 
BART are still legally valid and effective, and therefore, Kentucky can 
continue to rely on CAIR. The Commenter also believes that EPA should 
fully approve Kentucky's regional haze SIP in response to the D.C. 
Circuit's order staying the implementation of the Transport Rule 
pending resolution of the legal challenges to the Rule.
    Response 14: EPA has the authority to issue a limited approval (see 
response to Comment 1) and it is appropriate and necessary to 
promulgate a limited approval and limited disapproval of Kentucky's 
regional haze SIP revisions

[[Page 19107]]

at this time (see response to Comment 2). This action results in an 
approval of the entire regional haze SIP and all of its elements, 
preserving the visibility benefits offered by the SIP while providing 
EPA with the opportunity to demonstrate that the Transport Rule is 
better than BART. As noted above, EPA has already published a proposed 
rule reflecting this demonstration. EPA cannot fully approve regional 
haze SIP revisions that rely on CAIR for emissions reduction measures 
for the reasons discussed in section IV of the December 16, 2011, 
proposed rulemaking, and therefore proposed to grant limited approval 
and limited disapproval of the Kentucky regional haze SIP revisions. 
The D.C. Circuit's order staying the Transport Rule has no effect on 
the court's 2008 ruling in North Carolina v. EPA, 550 F.3d 1176 (D.C. 
Cir. 2008). Therefore, the proposed limited approval and limited 
disapproval actions remain appropriate for the reasons discussed in 
section IV of the December 16, 2011 proposed rulemaking cited above.
    Comment 15: The Commenter states that ``EPA should promulgate 
regulations that will avoid any asserted need to propose or promulgate 
limited disapprovals of regional haze SIPs or to propose or promulgate 
regional haze FIPs for states that have relied on CAIR or that may rely 
on CSAPR, or both, as a BART alternative for NOX and 
SO2 emissions from EGUs.'' The Commenter believes that EPA 
should promulgate regulations that would provide expressly that a state 
that becomes subject to CSAPR may choose to adopt a ``CSAPR=BART policy 
that would apply at such time as CSAPR takes effect.'' The Commenter 
also states that the ``visibility-improvement benefits from CAIR's 
emissions reductions * * * are likely to be replicated, or indeed 
exceeded, by the visibility benefits projected to result from CSAPR if 
CSAPR takes effect in the future.''
    Response 15: As noted in the response to Comment 3, this action is 
focused solely on the limited approval and limited disapproval of 
Kentucky's regional haze SIP revisions submitted on June 25, 2008, and 
May 28, 2010. Given that the Transport Rule, or CSAPR, was not signed 
until 2011, neither SIP revision mentions the Transport Rule nor 
suggests that the Commonwealth intended to rely on the reductions from 
this rule to meet the regional haze requirements. EPA did not propose 
to find that participation in the Transport Rule is an alternative to 
BART in this rulemaking. EPA made this proposed finding in a separate 
action on December 30, 2011; therefore, these comments are beyond the 
scope of this rulemaking and will be addressed by EPA in its final 
action on the December 30, 2011, proposed rule.

III. What is the effect of this final action?

    Under CAA sections 301(a) and 110(k)(6) and EPA's long-standing 
guidance, a limited approval results in approval of the entire SIP 
revision, even of those parts that are deficient and prevent EPA from 
granting a full approval of the SIP revision (see EPA's 1992 Calcagni 
Memorandum). Today, EPA is finalizing a limited approval of Kentucky's 
June 25, 2008, and May 28, 2010, regional haze SIP revisions. This 
limited approval results in approval of Kentucky's entire regional haze 
SIP and all the elements. EPA is taking this approach because 
Kentucky's SIP will be stronger and more protective of the environment 
with the implementation of those measures by the Commonwealth and 
having federal approval and enforceability than it would without those 
measures being included in Kentucky's SIP.
    In this action, EPA is also finalizing a limited disapproval of 
Kentucky's June 25, 2008, and May 28, 2010, regional haze SIP revisions 
insofar as these SIP revisions rely on CAIR to address the impact of 
emissions from the Commonwealth's EGUs. As explained in the 1992 
Calcagni Memorandum, ``[t]hrough a limited approval, EPA [will] 
concurrently, or within a reasonable period of time thereafter, 
disapprove the rule * * * for not meeting all of the applicable 
requirements of the Act. * * * [T]he limited disapproval is a 
rulemaking action, and it is subject to notice and comment.'' Final 
limited disapproval of a SIP submittal does not affect the federal 
enforceability of the measures in the subject SIP revision nor prevent 
state implementation of these measures. The legal effect of the final 
limited disapproval for Kentucky's June 25, 2008, and May 28, 2010, SIP 
revisions is to provide EPA the authority to issue a FIP at any time, 
and to obligate the Agency to take such action no more than two years 
after the effective date of EPA's final action. As explained in the 
1992 Calcagni Memorandum, ``[t]hrough a limited approval, EPA [will] 
concurrently, or within a reasonable period of time thereafter, 
disapprove the rule * * * for not meeting all of the applicable 
requirements of the Act. * * * [T]he limited disapproval is a 
rulemaking action, and it is subject to notice and comment.''

IV. Final Action

    EPA is finalizing a limited approval and a limited disapproval of 
two revisions to the Kentucky SIP submitted by the Commonwealth of 
Kentucky on June 25, 2008, and May 28, 2010, as meeting some of the 
applicable regional haze requirements as set forth in sections 169A and 
169B of the CAA and in 40 CFR 51.300-308.

V. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.''

B. 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 (RFA)

    The RFA generally requires an agency to conduct a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements unless the agency certifies that the rule will 
not have a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small not-for-profit 
enterprises, and small governmental jurisdictions.
    This rule will not have a significant impact on a substantial 
number of small entities because SIP approvals under section 110 and 
subchapter I, part D of the CAA do not create any new requirements but 
simply approve requirements that the Commonwealth is already imposing. 
Therefore, because the federal SIP approval does not create any new 
requirements, I certify that this action will not have a significant 
economic impact on a substantial number of small entities.
    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. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 
7410(a)(2).

[[Page 19108]]

D. Unfunded Mandates Reform Act (UMRA)

    Under sections 202 of the UMRA 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. 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 today's action does not include a federal 
mandate that may result in estimated costs of $100 million or more to 
either state, local, or tribal governments in the aggregate, or to the 
private sector. This federal action approves 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 a state rule implementing a federal standard, and does 
not alter the relationship or the distribution of power and 
responsibilities established in the CAA. Thus, the requirements of 
section 6 of the Executive Order do not apply to this rule.

F. Executive Order 13175, Coordination With Indian Tribal Governments

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

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

    Protection of Children from Environmental Health Risks and Safety 
Risks (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 EPA has 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.

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

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (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 (NTTAA)

    Section 12 of the 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.
    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. Congressional Review Act

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

K. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by May 29, 2012. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purposes of judicial review nor does 
it extend the time within which a petition for judicial review may be 
filed, and shall not postpone the effectiveness of such rule or action. 
This action may not be challenged later in proceedings to enforce its 
requirements. See section 307(b)(2).

[[Page 19109]]

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

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

    Dated: March 13, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

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

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

Subpart S--Kentucky

0
2. Section 52.936 is added to read as follows:

Sec.  52.936  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 for protection of visibility in 
mandatory Class I federal areas.
    (b) [Reserved]

[FR Doc. 2012-7575 Filed 3-29-12; 8:45 am]
BILLING CODE 6560-50-P
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