Federal Register / Vol. 77, No. 130 / Friday, July 6, 2012 / Rules and Regulations 39943 

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). 

C. 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 September 4, 2012. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action 

pertaining to Maryland’s Regional Haze 

Plan for the first implementation period, 

through 2018 may not be challenged 

later in proceedings to enforce its 

requirements. See section 307(b)(2) of 

the CAA. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Nitrogen dioxide, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Dated: June 13, 2012. 

W.C. Early, 

Acting Regional Administrator, Region III. 

Therefore, 40 CFR part 52 is 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 V—Maryland 

■ 2. In § 52.1070, the table in paragraph 

(e) is amended by adding the entry for 

the Maryland Regional Haze Plan at the 

end of the table to read as follows: 

§ 52.1070 Identification of plan. 

* * * * * 

(e) * * * 

Name of non-regulatory SIP 

revision Applicable geographic area State submittal date EPA approval date Additional explanation 

*******

Maryland Regional Haze Plan ........ Statewide ....................................... 2/13/12 7/6/2012 [Insert page number 

where the document begins].

[FR Doc. 2012–16417 Filed 7–5–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R05–OAR–2011–0598; FRL–9683–6] 

Approval and Promulgation of Air 

Quality Implementation Plans; Illinois; 

Regional Haze 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving revisions to 

the Illinois State Implementation Plan, 

submitted on June 24, 2011, addressing 

regional haze for the first 

implementation period. EPA received 

comments disputing its proposed 

finding regarding best available retrofit 

technology, but EPA continues to 

believe that Illinois’ plan limits power 

plant emissions as well as would be 

achieved by directly requiring best 

available retrofit technology. Therefore, 

EPA finds that the Illinois regional haze 

plan satisfactorily addresses Clean Air 

Act section 169A and Regional Haze 

Rule requirements for states to remedy 

any existing and prevent future 

anthropogenic impairment of visibility 

at mandatory Class I areas. EPA is also 

approving two state rules and 

incorporating two permits into the state 

implementation plan. 

DATES: This final rule is effective on 

August 6, 2012. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R05–OAR–2011–0598. 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 

(CBI) 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 Environmental Protection Agency, 

Region 5, Air and Radiation Division, 77 

West Jackson Boulevard, Chicago, 

Illinois 60604. This facility is open from 

8:30 AM to 4:30 PM, Monday through 

Friday, excluding Federal holidays. We 

recommend that you telephone John 

Summerhays, Environmental Scientist, 

at (312) 886–6067 before visiting the 

Region 5 office. 

FOR FURTHER INFORMATION CONTACT: John 

Summerhays, Environmental Scientist, 

Attainment Planning and Maintenance 

Section, Air Programs Branch (AR–18J), 

Environmental Protection Agency, 

Region 5, 77 West Jackson Boulevard, 

Chicago, Illinois 60604, (312) 886–6067, 

summerhays.john@epa.gov. 

SUPPLEMENTARY INFORMATION: This 

supplementary information section is 

arranged as follows: 

I. Synopsis of Proposed Rule 

II. Comments and Responses 

III. What action is EPA taking? 

IV. Statutory and Executive Order Reviews 

I. Synopsis of Proposed Rule 

Illinois submitted a plan on June 24, 

2011, to address the requirements of 

Clean Air Act section 169A and the 

Regional Haze Rule, as codified in Title 

40 Code of Federal Regulations Part 

51.308 (40 CFR 51.308). 

EPA published a notice of proposed 

rulemaking evaluating Illinois’ 

submittal on January 26, 2012, at 77 FR 

3966. This notice described the nature 

of the regional haze problem and the 

statutory and regulatory background for 

EPA’s review of Illinois’ regional haze 

plan. The notice provided a lengthy 

delineation of the requirements that 

Illinois intended to meet, including 

requirements for mandating BART, 

consultation with other states in 

establishing goals representing 

reasonable progress in mitigating 

anthropogenic visibility impairment, 

and adoption of limitations as necessary 

to implement a long-term strategy for 

reducing visibility impairment. 

Of particular interest were EPA’s 

findings regarding BART. States are 

required to address the BART 


sroberts on DSK5SPTVN1PROD with RULES
39944 Federal Register / Vol. 77, No. 130 / Friday, July 6, 2012 / Rules and Regulations 

1The notice of proposed rulemaking lists 10 

EGUs as being subject to BART (including two 

facilities owned by City Water Light and Power 

(CWLP)) but states that only 9 EGUs are subject to 

BART. This is because CWLP shut down the 

Lakeside plant that was subject to BART in 2009. 

requirements for sources with 

significant impacts on visibility, which 

Illinois defined as having at least 0.5 

deciview impact on a Class I area. Using 

modeling performed by the Lake 

Michigan Air Directors Consortium 

(LADCO), Illinois identified 10 power 

plants and two refineries as having 

sufficient impact to warrant being 

subject to a requirement representing 

BART.1

Seven of the power plants that were 

identified as being subject to the 

requirement for BART are addressed in 

one of two sets of provisions of Illinois’ 

rules known respectively as the 

Combined Pollutant Standards (CPS), 35 

Ill. Administrative Code 225.233, and 

the Multi-Pollutant Standards (MPS), 35 

Illinois Administrative Code 225.293– 

225.299. These provisions are included 

in Illinois’ mercury rules. These rules 

offer the affected utilities (Midwest 

Generation, Dynegy, and Ameren) a 

choice of limitations, either to include 

1) specific mercury emission limitations 

effective in 2015 with no limits on 

emissions of sulfur dioxide (SO2) or 

nitrogen oxides (NOX) or 2) work 

practice requirements for installation of 

mercury control equipment in 

conjunction with limits on SO2 and 

NOX emissions. Illinois’ submittal 

includes letters from the affected 

companies choosing the option that 

includes SO2 and NOX emission limits, 

which pursuant to Illinois’ rules 

establishes these limits as enforceable 

limits. In the case of Midwest 

Generation, three of its power plants 

meet the criteria for being subject to 

BART, and six plants are governed by 

the SO2 and NOX limits in the MultiPollutant Standards. In the case of 

Dynegy, one of its power plants meets 

the criteria for being subject to BART, 

and four coal-fired power plants are 

governed by the SO2 and NOX limits in 

the (CPS). In the case of Ameren, three 

of its power plants meet the criteria for 

being subject to BART, and five coalfired plants are governed by the SO2 and 

NOX limits in the (CPS). In the notice 

of proposed rulemaking, EPA proposed 

to conclude that the emission 

reductions from the (MPS) and the 

(CPS) would be greater than the 

reductions that would occur with unitspecific implementation of BART on the 

subset of these sources that meet the 

criteria for being subject to BART. 

Therefore, EPA proposed to find that the 

(MPS) and the (CPS) suffice to address 

the BART requirement for the power 

plants of these three utilities. 

Illinois also developed source-specific 

limits to mandate BART for three 

additional power plants. These limits 

are adopted into two permits, one for 

Kincaid Generation’s Kincaid Station 

and one for City Water, Light, and 

Power’s (CWLP) Dallman Station and 

Lakeside Station. CWLP shutdown 

Lakeside Station in 2009, and the CWLP 

permit requires that the Lakeside 

Station never resume operation. Finally, 

Illinois found that Federal consent 

decrees regulating emissions from the 

two refineries with units subject to 

BART (facilities owned by ExxonMobil 

and Citgo) mandate control at the 

refineries in Illinois at least as much as 

would be required as BART. EPA 

proposed to conclude that Illinois 

satisfied BART requirements for the 

affected Illinois power plants and 

refineries. 

As stated in the notice of proposed 

rulemaking, Illinois did not rely on the 

Clean Air Interstate Rule (CAIR) for its 

BART determinations. Illinois is in the 

CAIR region. However, it used its state 

rules, permits, and consent decrees to 

achieve emission reductions that satisfy 

BART. This means that Illinois is not 

reliant on CAIR and, thus, it has 

avoided the issues of other CAIR region 

states that relied on CAIR. For similar 

reasons, Illinois’ satisfaction of regional 

haze rule requirements is not contingent 

on the Cross-State Air Pollution Rule 

(CSAPR) and thus is not affected by the 

stay of that rule. 

II. Comments and Responses 

EPA received comments from three 

commenters on its proposed rulemaking 

on the Illinois regional haze plan. These 

commenters included ExxonMobil, the 

U.S. Forest Service, and the 

Environmental Law and Policy Center 

(ELPC). 

ExxonMobil comments that section 

169A(b)(2)(A) requires sources to 

implement BART as determined by the 

state (emphasis in the original), and 

agrees with Illinois’ and EPA’s 

conclusion that ‘‘emission limits 

established by the consent decrees may 

be relied upon by Illinois for addressing 

the BART requirement for these 

facilities.’’ While EPA has the 

responsibility to evaluate whether it 

believes that states have made 

appropriate determinations as to what 

restrictions constitute BART, EPA 

appreciates the comment supporting its 

position, which EPA has no reason to 

change, that the Federal consent decrees 

for ExxonMobil and Citgo adequately 

mandate BART for the two Illinois 

refineries. 

The U.S. Forest Service wrote to 

express its appreciation to Illinois for 

addressing prior Forest Service 

comments and to express support for 

EPA’s proposed approval of Illinois’ 

plan. 

ELPC sent extensive comments 

objecting that control requirements for 

power plants in Illinois do not suffice to 

meet the BART requirements and leave 

Illinois short of meeting reasonable 

progress requirements. These comments 

are addressed in detail in the discussion 

that follows. 

Comment: ELPC argues that ‘‘the 

plain language of the Clean Air Act 

precludes alternatives to BART.’’ Since 

the Illinois plan establishes limits that 

govern the collective emissions of 

multiple power plants owned by 

pertinent utilities, the plan relies on an 

alternative to BART as described in 40 

CFR 51.308(e)(2) rather than mandating 

BART on a source-specific basis. ELPC 

states that BART at BART-eligible 

sources is expressly mandated in Clean 

Air Act section 169A(b)(2)(A). ELPC 

acknowledges that the Clean Air Act 

authorizes limited exemptions from 

BART, in cases which EPA determines 

pursuant to section 169A(c)(1) that ‘‘the 

source does not either by itself or in 

combination with other sources ‘emit 

any air pollutant which may reasonably 

be anticipated to cause or contribute to 

a significant impairment of visibility in 

any mandatory class I federal area.’ ’’ 

ELPC observes that ‘‘[n]owhere in 

Section 169A did Congress contemplate 

or sanction sweeping alternative 

programs’’ such as Illinois uses to 

address BART for many of its BARTsubject power plants ‘‘in lieu of source 

specific BART.’’ 

ELPC acknowledges that EPA 

promulgated regulations reflecting its 

interpretation that BART requirements 

may be satisfied by alternative 

programs, and ELPC acknowledges that 

‘‘the DC Circuit Court of Appeals has 

upheld [these] regulations.’’ 

Nevertheless, ‘‘because these [court 

rulings] cannot be reconciled with the 

plan language of the Clean Air Act,’’ 

ELPC urges that ‘‘EPA should not rely 

on [this interpretation] to exempt 

Illinois from implementing BART.’’ 

Response: In several previous rules, 

EPA has concluded that Clean Air Act 

section 169A may reasonably be 

interpreted to provide that the 

requirement for BART may be satisfied 

by an alternative program that provides 

greater visibility protection in lieu of 

limitations that directly mandate BART 

for individual sources determined to be 

subject to the BART requirement. See 40 

CFR 51.308(e), 64 FR 35741–35743 (July 

1, 1999), and 70 FR 39136 (July 6, 2005). 


sroberts on DSK5SPTVN1PROD with RULES
Federal Register / Vol. 77, No. 130 / Friday, July 6, 2012 / Rules and Regulations 39945 

As ELPC acknowledges, the Court of 

Appeals for the District of Columbia 

Circuit supports that interpretation, 

Center for Energy and Economic 

Development v. EPA, 398 F.3d 653, 660 

(D.C. Cir. 2005) (‘‘CEED’’) (finding 

reasonable EPA’s interpretation of CAA 

section 169(a)(2) as requiring BART 

only as necessary to make reasonable 

progress), as has the Ninth Circuit, 

Central Arizona Water Conservation 

District v. EPA, 990 F.2d 1531, 1543 (9th 

Cir. 1993) Therefore, EPA views Illinois’ 

approach as an acceptable means of 

addressing the BART requirement in 

section 169A. 

Comment: ELPC comments that 

‘‘Illinois was required, but failed, to 

make a BART determination for each 

source subject to BART in the state.’’ 

ELPC lists the elements of a BART 

analysis that a state ‘‘must submit’’ 

(emphasis in original) pursuant to 40 

CFR 51.308(e)(2), and ELPC states that 

Illinois has failed to make the BART 

determination based on source-specific 

information that EPA’s regulations 

require. ‘‘Rather than make a BART 

determination for each individual 

source subject to BART that would be 

covered by Illinois’ proposed 

alternative,’’ ELPC objects that the state 

‘‘simply compared projected emissions 

reductions [from the adopted 

restrictions] to presumptive BART 

emissions.’’ ELPC comments that 

‘‘[b]ecause Illinois entirely failed to use 

source-specific information or 

undertake a comprehensive five factor 

analysis to determine BART, its 

proposed Regional Haze State 

Implementation Plan (SIP) may not be 

approved. 

Response: The primary requirement, 

as specified in Clean Air Act section 

169A, is for sources to procure, install, 

and operate BART. In some cases this 

requirement is met with an analysis of 

potential controls considering five 

factors set out in EPA’s regional haze 

rule (a ‘‘five-factor analysis’’). 40 CFR 

51.308(e)(1)(ii)(A). As noted above, EPA 

has determined that this requirement 

can be met by a state establishing an 

alternative set of emission limits which 

mandate greater reasonable progress 

toward visibility improvement than 

direct application of BART on a sourceby-source basis. 

In promulgating the 1999 regional 

haze regulations, EPA stated that to 

demonstrate that emission reductions of 

an alternative program would result in 

greater emission reductions, ‘‘the State 

must estimate the emission reductions 

that would result from the use of BARTlevel controls. To do this, the State 

could undertake a source-specific 

review of the sources in the State 

subject to BART, or it could use a 

modified approach that simplifies the 

analysis.’’ 64 FR 35742 (July 1, 1999). 

In guidance published on October 13, 

2006, EPA offered further clarification 

for states for assessing alternative 

strategies, in particular regarding the 

benchmark definition of BART to use in 

judging whether the alternative is better. 

See 71 FR 60612. In this rulemaking, 

EPA stated in the preamble that the 

presumptive BART levels given in the 

BART guidelines would be a suitable 

baseline against which to compare 

alternative strategies where the 

alternative has been designed to meet a 

requirement other than BART. 71 FR at 

60619; see also 40 CFR 

51.308(e)(2)(i)(C). Illinois’ analysis is 

fully consistent with EPA’s conclusions 

in this rulemaking. 

Nevertheless, EPA undertook further 

analysis comparing Illinois’ strategy 

against more stringent definitions of 

BART. In brief, EPA found that the 

alternative restrictions imposed by 

Illinois can be demonstrated to provide 

greater emission reductions and greater 

visibility improvement than even very 

conservative definitions of BART, even 

without a full analysis of the emission 

levels that constitute BART. The 

demonstration is discussed below, in 

the context of response to comments 

addressing the magnitude of controls at 

Illinois power plants. 

Comment: ELPC believes that the 

pertinent requirements in Illinois’ plan 

‘‘will not achieve greater reasonable 

progress toward natural visibility 

conditions than BART.’’ Furthermore, 

‘‘the MPS/CPS contains absolutely no 

requirements for specific control 

equipment to be installed or operated at 

any source subject to BART in Illinois.’’ 

ELPC identifies several examples of 

BART units that are expected to comply 

with the MPS or CPS with controls that 

are less effective than BART-level 

controls. ELPC also finds it problematic 

that ‘‘requirements for 2017 for Ameren 

exceed presumptive BART requirements 

for NOX at one of the three plants 

subject to BART, and far exceed 

presumptive SO2 BART limits at all 

three (emphasis in original) Ameren 

plants subject to BART.’’ ELPC raises 

similar concerns in relation to specified 

Midwest Generation (MWG) plants. For 

this reason, ‘‘and because Ameren and 

MWG need not meet even those weak 

requirements at their plants subject to 

BART, the MPS/CPS is not ‘better’ than 

presumptive BART limits.’’ 

Response: ELPC appears to 

misunderstand the applicable test for 

alternate strategies for addressing BART. 

In particular, ELPC appears to believe 

that under the alternative approach, 

Illinois must require BART-level 

controls at each unit subject to BART. 

In fact, the underlying principle of 

EPA’s guidance on alternative measures 

is to offer states the flexibility to require 

less control at BART units than BARTlevel control, provided the states 

provide additional control at non-BART 

units that more than compensates for 

any degree to which control at BART 

units falls short of BART. Illinois is 

using precisely this flexibility. 

Irrespective of the degree to which 

control at individual power plant BART 

units may be less stringent than the 

limits that for those particular units 

would be defined as BART, Illinois is 

requiring control across a universe of 

sources that includes many sources that 

are not subject to BART, thereby 

providing reductions that under EPA’s 

rules and BART guidelines on 

alternative measures can compensate for 

any shortfall in control at BART units. 

In response to these comments, EPA 

conducted further analysis of whether 

Illinois’ requirements, addressing a 

substantial number of sources, can be 

expected to provide greater reasonable 

progress toward visibility protection 

than application of BART to the more 

limited number of units subject to a 

requirement for BART. EPA’s analysis 

did not rely on a full five-factor analysis 

of BART at each BART-subject unit. 

Instead of using presumptive limits, 

EPA used emission limits described in 

EPA’s RACT/BACT/LAER 

Clearinghouse as being applied to new 

sources. These limits, namely 0.06 

pounds per million British Thermal 

Units (#/MMBTU) for NOX and also 0.06 

#/MMBTU for SO2, are as stringent and 

are probably more stringent than would 

generally be expected to be met at 

existing power plants, due to the design 

constraints that are sometimes inherent 

in controlling emissions at an existing 

facility. 

A more complete description of EPA’s 

analysis is provided in the technical 

support document being placed in the 

docket for this rule. Table 1 provides a 

summary of the results of this analysis. 


sroberts on DSK5SPTVN1PROD with RULES
39946 Federal Register / Vol. 77, No. 130 / Friday, July 6, 2012 / Rules and Regulations 

TABLE 1—EMISSION REDUCTIONS MANDATED BY ILLINOIS’ PLAN AND CONSERVATIVE ESTIMATES OF BART REDUCTIONS

Company BART units Total units 

NOX reductions 

(tons/year) 

SO2 reductions 

(tons/year) 

IL Plan Lowest BART IL Plan Lowest BART 

Ameren ..................................................... 5 24 24,074 23,849 111,997 74,349 

Dynegy ..................................................... 3 10 23,867 18,551 47,378 22,444 

MWG ........................................................ 9 19 37,819 28,061 61,292 38,963 

CWLP ....................................................... 3 3 5,375 5,560 4,875 5,619 

Kincaid ..................................................... 2 2 16,874 18,970 12,827 15,730 

Totals ................................................ 22 58 108,009 94,991 238,369 157,105 

This table shows that the reductions 

from Illinois’ plan, including reductions 

from the MPS, the CPS, and the permits 

for CWLP and Kincaid Generation, 

provide significantly greater emission 

reductions, especially for SO2 but also 

for NOX, than even very conservative 

definitions of BART for the BARTsubject units. While Illinois’ limits for 

the CWLP and Kincaid facilities viewed 

individually are subject to limits at 

approximately presumptive levels, and 

thus mandate less reduction than would 

be mandated by conservative definitions 

of BART, this analysis indicates that the 

collective emission reductions from 

Illinois power plants are greater than 

those that would be achieved by 

requiring achievement of even very 

conservative limits at the units that are 

subject to a BART requirement. 

An additional point to be addressed is 

whether Illinois’ plan, achieving greater 

emission reductions overall than 

application of BART on BART-subject 

units, can be expected also to achieve 

greater visibility protection than 

application of BART on BART-subject 

units. In general, Illinois’ power plants 

are substantial distances from any Class 

I area. The least distance from any 

BART-subject Illinois power plant to 

any Class I area is from Dynegy’s 

Baldwin power plant to the Mingo 

Wilderness Area, a distance of about 

140 kilometers. The CWLP and Kincaid 

facilities are in the middle of the State; 

for example, Kincaid Station is about 

300 kilometers from the Mingo 

Wilderness Area. Given these distances, 

and given that the averaging in Illinois’ 

plan (averaging among Illinois plants of 

an individual company) is only 

authorized within the somewhat limited 

region within which each utility’s 

plants are located, a reallocation of 

emission reductions from one plant to 

another is unlikely to change the impact 

of those emission reductions 

significantly. Consequently, in these 

circumstances, EPA is confident that the 

significantly greater emission reductions 

that Illinois mandates will yield greater 

progress toward visibility protection as 

compared to the benefits of a 

conservative estimate of BART. 

Comment: ELPC comments that the 

‘‘MPS/CPS does not require that all 

necessary emissions reductions take 

place during the first long-term strategy 

for regional haze.’’ 

Response: EPA does not prohibit 

reductions after the BART compliance 

deadline (in 2017); Illinois is only 

required to mandate at least measures 

that will achieve greater reasonable 

progress by the BART compliance 

deadline. While the MPS and the CPS 

establish a series of progressively more 

stringent limits extending to 2017 and 

beyond, both Illinois’ analysis and the 

EPA analysis discussed above 

(summarized in Table 1) evaluate 

satisfaction of BART requirements by 

considering the emission limits in effect 

in 2017. The conclusion of that analysis 

is that the reductions necessary to meet 

BART requirements occur by the 

deadline for such reductions to occur. 

The fact that Illinois’ plan requires 

additional reductions after 2017 is not a 

shortcoming of Illinois’ plan. 

Comment: ELPC expects the affected 

utilities to use the reductions mandated 

here to comply with CSAPR. ELPC 

concludes that these reductions cannot 

be considered surplus and thus are not 

creditable for meeting BART 

requirements. 

Response: Under 40 CFR 51.308(e)(2), 

the alternative measures need only be 

surplus to reductions from measures 

adopted to meet requirements of the 

Clean Air Act as of the baseline date of 

the SIP, i.e. 2002. (See 40 CFR 

51.308(e)(2)(iv).) In addition, 40 CFR 

51.308(e) expressly provides that the 

BART requirements may be met by 

compliance with a trading program of 

adequate stringency even without 

establishment of state-specific limits. 

Therefore, the existence of a trading 

program, and influence that the state 

limits have on a utility’s strategy for 

complying with the trading program 

requirements, cannot be grounds for 

disapproving a state plan that satisfies 

alternative BART requirements without 

reliance on the trading program. 

Comment: ELPC expresses a number 

of concerns about the BART analysis for 

Kincaid Station. ELPC particularly 

expresses concern that the company 

analyzes wet flue gas desulfurization for 

a scenario based on a relatively high 

sulfur Illinois coal but analyzes dry 

sorbent injection based on a low sulfur 

western coal, biasing the comparison 

toward a conclusion that use of the 

control that is least effective at removing 

SO2 nevertheless achieves the lowest 

emissions of SO2.

Response: EPA agrees that use of 

higher sulfur coal in the scenario of wet 

flue gas desulfurization creates a 

mismatch in comparing this control to 

the other control options. However, 

ELPC does not demonstrate that a more 

appropriate comparison would yield a 

different result. Indeed, given how 

much more expensive wet flue gas 

desulfurization has been estimated to be 

for this facility as compared to dry 

sorbent injection (company estimates of 

annualized costs of $125 million versus 

$25 million), EPA believes that a revised 

BART analysis that used the same fuel 

for all scenarios, and thus achieved 

lower emissions with wet flue gas 

desulfurization, would still show that 

wet flue gas desulfurization is not costeffective for this facility. Therefore, EPA 

continues to believe that Illinois made 

the appropriate BART determination for 

this facility. 

Comment: ELPC objects to the use of 

annual average limits, expressing 

concern that annual average limits allow 

individual days of concern to have 

excessive visibility impairment. 

Response: EPA’s BART guidance 

establishes presumptive averaging times 

of 30 days or shorter, but EPA also finds 

Illinois’ limits to be approvable. While 

a limit expressed as an annual average 

is inherently less stringent than the 

same limit expressed as a 30-day 

average, EPA believes that Illinois 

provides adequate compensation in part 

by setting some limits below 

presumptive levels and in part by 


sroberts on DSK5SPTVN1PROD with RULES
Federal Register / Vol. 77, No. 130 / Friday, July 6, 2012 / Rules and Regulations 39947 

limiting several units that are not 

subject to a BART requirement. 

A useful perspective is to examine the 

metrics by which regional haze is 

evaluated. These metrics are averages of 

visibility across 20 percent of the days 

of the year, in particular across the 20 

percent of days with the worst visibility 

and across the 20 percent of days with 

the best visibility. (See 64 FR 35734) 

Twenty percent of 365 days in a year is 

73 days. Furthermore, the days that 

have better or worse visibility are 

distributed throughout the year, so that 

allowance of greater variability in daily 

or monthly emissions would not 

necessarily yield worse (or better) 

visibility. Thus, while a 30-day average 

limit would be better suited to assuring 

appropriate mitigation of visibility 

impairment, EPA finds Illinois’ annual 

average limitations to be adequately 

commensurate with the averaging time 

inherent in the visibility metrics being 

addressed. 

Another facet of the use of annual 

rather than 30-day or shorter averages is 

stringency. Given normal variability in 

emissions, an annual average limitation 

is by definition less stringent than a 30- 

day or shorter average limitation set at 

the same level. In some contexts, 

especially those involving short-term air 

quality standards, EPA would not 

accept an annual average limitation 

without a demonstration that the 

limitation suffices to mandate that 

short-term average emission levels must 

remain below some definable, adequate 

level. However, different criteria are 

warranted in the context of regional 

haze, for which the relevant emissions 

are the emissions on the 20 percent of 

days with worst visibility and the 20 

percent of days with best visibility. 

Examining the stringency of the 

particular limitations that Illinois has 

adopted, and considering degree of 

variability in 73-day average emissions 

that might be expected with an annual 

average emission limit, EPA finds that 

Illinois’ annual average limitations are 

sufficiently stringent to conclude that 

emissions on a 30-day average basis can 

be expected to provide the visibility 

improvement that Illinois is required to 

provide. 

Comment: ELPC comments that 

Illinois’ long-term strategy must be 

disapproved. ELPC expresses particular 

concern that Illinois’ plan does not 

mandate emission reductions for two 

power plants, specifically Ameren’s 

Joppa plant and Southern Illinois Power 

Company’s Marion plant, which ELPC 

believes must be mandated ‘‘to achieve 

the reasonable progress goals for Class I 

areas affected by the state.’’ ELPC notes 

that ‘‘Illinois claimed that existing or 

soon-to-be-implemented regulatory 

program’’—in particular, the MPS/CPS 

and CSAPR—‘‘would require sufficient 

emissions reductions on the 15 most 

significant sources so as to ensure 

achievement of reasonable progress 

goals in impacted Class I areas.’’ ELPC 

acknowledges that the Joppa Plant is 

addressed to the extent that Ameren’s 

plants are collectively limited under the 

MPS, but ELPC observes that Ameren 

has the choice to comply with the MPS 

‘‘without making any reductions at 

Joppa,’’ even though the plant has ‘‘a 

Q/D ratio’’ (dividing emissions by 

distance to the nearest Class I area) that 

is ‘‘nearly three times larger than any 

other evaluated source.’’ ELPC also 

objects that CSAPR ‘‘also does not 

ensure emission reductions at either 

Joppa or Marion, because (1) the rule is 

under legal challenge, is currently 

stayed, and may never go into effect, (2) 

‘‘does not require emission reductions at 

particular plants,’’ and (3) by restricting 

annual emissions does not necessarily 

limit emissions in seasons when the 

most degradation in visibility may 

occur. 

Response: Achievement of the 

applicable reasonable progress goals is 

not contingent on Illinois limiting 

emissions from the Joppa or Marion 

plants in particular. Given the distances 

of the sources in Illinois from affected 

Class I areas, the least of which is about 

120 kilometers from the Joppa plant to 

Mingo Wilderness Area, the impact on 

visibility is primarily dependent on the 

total emission reductions and not on the 

geographical distribution of those 

reductions. That is, even if Ameren for 

example were to opt to control its 

Coffeen plant (about 240 kilometers 

from Mingo Wilderness Area) more than 

its Joppa plant, the net effect on 

visibility would likely be similar. 

EPA recognizes that CSAPR is under 

challenge and is currently stayed. 

However, Illinois is not relying on 

additional reductions from CSAPR to 

provide its appropriate contribution 

toward achieving reasonable progress in 

visibility protection. Therefore, the 

litigation status of CSAPR is not 

germane to the approvability of Illinois’ 

regional haze plan. 

III. What action is EPA taking? 

EPA is approving Illinois’ regional 

haze plan as satisfying the applicable 

requirements in 40 CFR 51.308. Most 

notably, EPA concludes that Illinois has 

satisfied the requirements for BART in 

40 CFR 51.308(e) and has adopted a 

long-term strategy that reduces 

emissions in Illinois that, in 

combination with similar reductions 

elsewhere, EPA expects to suffice to 

achieve the reasonable progress goals at 

Class I areas affected by Illinois. 

In this action, EPA is also approving 

a set of rules and two permits for 

incorporation into the state 

implementation plan. Specifically, EPA 

is approving the following rules: Title 

35 of Illinois Administrative Code Rules 

225.233 (paragraphs a, b, e, and g), 

225.291, 225.292, 225.293, 225.295, 

225.296 (except paragraph d), and 225 

Appendix A. While the rules provide 

the SO2 and NOX limits as one of two 

options that the affected utilities may 

choose between, EPA is incorporating 

into the SIP Illinois’ submittal of letters 

from the affected utilities choosing the 

option including the SO2 and NOX

limits, which under the approved rules 

makes these limits permanently 

enforceable. Therefore, these SO2 and 

NOX limits are state enforceable and, 

with this SIP approval, now become 

federally enforceable as well. EPA also 

considers the limits of the state permits 

and the refinery consent decrees to be 

enforceable. While Illinois adopted the 

above rules as part of a state rulemaking 

which mostly addressed mercury 

emissions, the mercury provisions are 

not germane to this rulemaking, Illinois 

did not submit the mercury-related 

rules, and the limited set of rules that 

Illinois submitted suffice to mandate the 

SO2 and NOX emission controls that are 

pertinent to this action. 

IV. Statutory and Executive Order 

Reviews 

Under the Clean Air Act, the 

Administrator is required to approve a 

SIP submission that complies with the 

provisions of the Clean Air Act and 

applicable Federal regulations. 42 

U.S.C. 7410(k); 40 CFR 52.02(a). Thus, 

in reviewing SIP submissions, EPA’s 

role is to approve state choices, 

provided that they meet the criteria of 

the Clean Air Act. Accordingly, this 

action merely approves state law as 

meeting Federal requirements and does 

not impose additional requirements 

beyond those imposed by state law. For 

that reason, this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 


sroberts on DSK5SPTVN1PROD with RULES
39948 Federal Register / Vol. 77, No. 130 / Friday, July 6, 2012 / Rules and Regulations 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

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 action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by September 4, 

2012. Filing a petition for 

reconsideration by the Administrator of 

this final rule does not affect the finality 

of this action for the purposes of judicial 

review nor does it extend the time 

within which a petition for judicial 

review may be filed, and shall not 

postpone the effectiveness of such rule 

or action. This action may not be 

challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

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. 

Dated: May 29, 2012. 

Susan Hedman, 

Regional Administrator, Region 5. 

40 CFR part 52 is 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 O—Illinois 

■ 2. Section 52.720 is amended by 

adding paragraph (c)(192) to read as 

follows: 

§ 52.720 Identification of plan. 

* * * * * 

(c) * * * 

(192) On June 24, 2011, Laurel 

Kroack, Illinois Environmental 

Protection Agency, submitted Illinois’ 

regional haze plan to Cheryl Newton, 

Region 5, EPA. This plan includes a 

long-term strategy with emission limits 

for mandating emission reductions 

equivalent to the reductions from 

implementing best available retrofit 

technology and with emission 

reductions to provide Illinois’ 

contribution toward achievement of 

reasonable progress goals at Class I areas 

affected by Illinois. The plan 

specifically includes regulations 

establishing Multi-Pollutant Standards 

and Combined Pollutant Standards, 

along with letters from the affected 

electric utilities establishing the 

applicability and enforceability of the 

option that includes sulfur dioxide and 

nitrogen oxide emission limits. The plan 

also includes permits establishing sulfur 

dioxide and nitrogen oxide emission 

limits for three additional electric 

generating plants and two consent 

decrees establishing sulfur dioxide and 

nitrogen oxide emission limits for two 

refineries. 

(i) Incorporation by reference. 

(A) The following sections of Illinois 

Administrative Code, Title 35: 

Environmental Protection, Subtitle B: 

Air Pollution, Chapter 1: Pollution 

Control Board, Subchapter c: Emission 

Standards and Limitations for 

Stationary Sources, Part 225, Control of 

Emissions from Large Combustion 

Sources, published at 33 IL Reg 10427, 

effective June 26, 2009, are incorporated 

by reference: 

(1) Subpart B: Control Of Mercury 

Emissions From Coal-Fired Electric 

Generating Units, Section 225.233 

Multi-Pollutant Standards (MPS), only 

subsections (a), (b), (e), and (g), Section 

225.291 Combined Pollutant Standard: 

Purpose, Section 225.292 Applicability 

of the Combined Pollutant Standard, 

Section 225.293 Combined Pollutant 

Standard: Notice of Intent, Section 

225.295 Combined Pollutant Standard: 

Emissions standards for NOX and SO2,

and Section 225.296 Combined 

Pollutant Standard: Control Technology 

Requirements for NOX, SO2, and PM 

Emissions, except for 225.296(d). 

(2) Section 225.Appendix A Specified 

EGUs for Purposes of the CPS (Midwest 

Generation’s Coal-Fired Boilers as of 

July 1, 2006). 

(B) Joint Construction and Operating 

Permit: Application Number 09090046, 

Issued on June 23, 2011, to City Water, 

Light & Power, City of Springfield. 

(C) Joint Construction and Operating 

Permit: Application Number 09050022, 

Issued on June 24, 2011, to Kincaid 

Generation, LLC. 

(ii) Additional material. 

(A) Letter from Guy Gorney, Midwest 

Generation to Dave Bloomberg, Illinois 

EPA, dated December 27, 2007, 

choosing to be subject to provisions of 

the Multi-Pollutant Standards that 

include emission limits for sulfur 

dioxide and nitrogen oxides. 

(B) Letter from R. Alan Kelley, 

Ameren, to Jim Ross, Illinois EPA, dated 

December 27, 2007, choosing to be 

subject to provisions of the Combined 

Pollutant Standards that include 

emission limits for sulfur dioxide and 

nitrogen oxides. 

(C) Letter from Keith A. McFarland, 

Dynegy, to Raymond Pilapil, Illinois 

EPA, dated November 26, 2007, 

choosing to be subject to provisions of 

the Combined Pollutant Standards that 

include emission limits for sulfur 

dioxide and nitrogen oxides. 

[FR Doc. 2012–16557 Filed 7–5–12; 8:45 am] 

BILLING CODE 6560–50–P 


sroberts on DSK5SPTVN1PROD with RULES