Federal Register / Vol. 77, No. 230 / Thursday, November 29, 2012 / Rules and Regulations 71119 

Court of Appeals for the appropriate 

circuit by January 28, 2013. 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 

approving the incorporation by 

reference of Pennsylvania’s control of 

NOX emissions from glass melting 

furnaces into ACHD Rules and 

Regulations, Article XXI, Air Pollution 

Control 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, Nitrogen dioxide, Ozone, 

Reporting and recordkeeping 

requirements. 

Dated: November 7, 2012. 

W.C. Early, 

Acting Regional Administrator, Region III. 

40 CFR part 52 is amended as follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart NN—Pennsylvania 

■ 2. In § 52.2020, the table in paragraph 

(c)(2) is amended by adding a heading 

for Subpart 10 and an entry for Section 

2105.101 after the entry for Section 

2105.90 to read as follows: 

§ 52.2020 Identification of plan. 

* * * * * 

(c) * * * 

(2) * * * 

Article XX or XXI citation Title/subject 

State 

effective 

date 

EPA approval date Additional explanation/ 

§ 52.2063 citation 

*******

Part E—Source Emission and Operating Standards 

*******

Subpart 10—NOX Sources 

Section 2105.101 ..................... Control of NOX Emissions 

from Glass Melting Furnaces.

4/3/12 11/29/12 [Insert page number 

where the document begins].

New subpart and section are 

added. 

*******

* * * * * 

[FR Doc. 2012–28831 Filed 11–28–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2008–0702; FRL–9755–5] 

Approval and Promulgation of State 

Implementation Plans; City of 

Albuquerque-Bernalillo County, New 

Mexico; Interstate Transport Affecting 

Visibility and Regional Haze Rule 

Requirements for Mandatory Class I 

Areas 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving the City of 

Albuquerque—Bernalillo County, New 

Mexico State Implementation Plan (SIP) 

revisions submitted by the Governor of 

New Mexico on July 28, 2011 

addressing the regional haze 

requirements for the mandatory Class I 

areas under 40 CFR 51.309. The EPA 

finds that these revisions to the State 

Implementation Plan (SIP) and 

associated rules meet the requirements 

of the Clean Air Act (CAA) and comply 

with the provisions of 40 CFR 51.309, 

thereby meeting requirements for 

reasonable progress for the 16 Class I 

areas covered by the Grand Canyon 

Visibility Transport Commission Report 

for approval of the plan through 2018. 

We are also approving SIP submissions 

offered as companion rules to the 

Section 309 regional haze plan, 

specifically, rules for the Sulfur Dioxide 

Emissions Inventory Requirements and 

the Western Backstop Trading Program, 

submitted on December 26, 2003, 

September 10, 2008, and May 24, 2011, 

and rules for Open Burning, submitted 

on December 26, 2003 and July 28, 

2011. These SIP revisions were 

submitted to address the requirements 

of the Act and our rules that require 

states to prevent any future and remedy 

any existing man-made impairment of 

visibility in mandatory Class I areas 

caused by emissions of air pollutants 

from numerous sources located over a 

wide geographic area (also referred to as 

the ‘‘regional haze program’’). States are 

required to assure reasonable progress 

toward the national goal of achieving 

natural visibility conditions in Class I 

areas. 

We are also approving a portion of the 

SIP revision submitted by the City of 

Albuquerque—Bernalillo County, New 

Mexico on July 30, 2007, for the purpose 

of addressing the ‘‘good neighbor’’ 

provisions of the CAA section 

110(a)(2)(D)(i) for the 1997 8-hour ozone 

NAAQS and the PM2.5 NAAQS. We are 

approving the portion of the SIP 

submittal that addresses the CAA 

requirement concerning noninterference with programs to protect 

visibility in other states. EPA is taking 

this action pursuant to section 110 of 

the CAA. 

DATES: This final rule is effective 

December 31, 2012. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R06–OAR–2008–0702. All 

documents in the docket are listed on 

the www.regulations.gov Web site. 

Publicly available docket materials 

are available either electronically 

through www.regulations.gov, or in hard 

copy at the Air Planning Section (6PD– 


pmangrum on DSK3VPTVN1PROD with RULES
71120 Federal Register / Vol. 77, No. 230 / Thursday, November 29, 2012 / Rules and Regulations 

L), Environmental Protection Agency, 

1445 Ross Avenue, Suite 700, Dallas, 

Texas 75202–2733 The file will be made 

available by appointment for public 

inspection in the Region 6 FOIA Review 

Room between the hours of 8:30 a.m. 

and 4:30 p.m. weekdays except for legal 

holidays. Contact the person listed in 

the FOR FURTHER INFORMATION CONTACT

paragraph below or Mr. Bill Deese at 

214–665–7253 to make an appointment. 

If possible, please make the 

appointment at least two working days 

in advance of your visit. There will be 

a 15 cent per page fee for making 

photocopies of documents. On the day 

of the visit, please check in at our 

Region 6 reception area at 1445 Ross 

Avenue, Suite 700, Dallas, Texas. 

FOR FURTHER INFORMATION CONTACT: 

Michael Feldman, Air Planning Section 

(6PD–L), Environmental Protection 

Agency, Region 6, 1445 Ross Avenue, 

Suite 700, Dallas, Texas 75202–2733, 

telephone 214–665–9793; fax number 

214–665–7263; email address 

feldman.michael@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Definitions 

For the purpose of this document, we are 

giving meaning to certain words or initials as 

follows: 

i. The words or initials Act or CAA mean 

or refer to the Clean Air Act, unless the 

context indicates otherwise. 

ii. The words EPA, we, us or our mean or 

refer to the United States Environmental 

Protection Agency. 

iii. The initials SIP mean or refer to State 

Implementation Plan. 

iv. The initials RH and RHR mean or refer 

to Regional Haze and Regional Haze Rule. 

v. The initials BC and the words 

Albuquerque and Bernalillo County mean the 

City of Albuquerque-Bernalillo County, New 

Mexico 

vi. The initials AQCB mean or refer to the 

Albuquerque/Bernalillo County Air Quality 

Control Board. 

vii. The initials BART mean or refer to Best 

Available Retrofit Technology. 

viii. The initials OC mean or refer to 

organic carbon. 

ix. The initials EC mean or refer to 

elemental carbon. 

x. The initials VOC mean or refer to 

volatile organic compounds. 

xi. The initials EGUs mean or refer to 

Electric Generating Units. 

xii. The initials NOX mean or refer to 

nitrogen oxides. 

xiii. The initials SO2 mean or refer to sulfur 

dioxide. 

xiv. The initials PM10 mean or refer to 

particulate matter with an aerodynamic 

diameter of less than 10 micrometers. 

xv. The initials PM2.5 mean or refer to 

particulate matter with an aerodynamic of 

less than 2.5 micrometers. 

xvi. The initial RPGs mean or refer to 

reasonable progress goals. 

xvii. The initials RPOs mean or refer to 

regional planning organizations. 

xviii. The initials WRAP mean or refer to 

the Western Regional Air Partnership. 

xix. The initials GCVTC mean or refer to 

the Grand Canyon Visibility Transport 

Commission. 

Table of Contents 

I. Background 

II. Final Action 

III. Basis for Final Action 

IV. Issues Raised by Commenters and EPA’s 

Responses 

V. Statutory and Executive Orders 

I. Background 

The CAA requires each state to 

develop plans, referred to as SIPs, to 

meet various air quality requirements. A 

state must submit its SIPs and SIP 

revisions to us for approval. The 

Albuquerque/Bernalillo County Air 

Quality Control Board (AQCB) is the 

federally delegated air quality authority 

for the City of Albuquerque and 

Bernalillo County, New Mexico (BC). 

The AQCB is authorized to administer 

and enforce the CAA and the New 

Mexico Air Quality Control Act, and to 

require local air pollution sources to 

comply with air quality standards. The 

AQCB has submitted a Section 309 

regional haze SIP for its geographic area 

of New Mexico under the New Mexico 

Air Quality Control Act (section 74–2– 

4). The BC RH SIP is a necessary 

component of the regional haze plan for 

the entire State of New Mexico and is 

also necessary to ensure the 

requirements of Section 110(a)(2)(D)(i) 

of the CAA are satisfied for the entire 

State of New Mexico. Once approved, a 

SIP is enforceable by EPA and citizens 

under the CAA, also known as being 

federally enforceable. This action 

involves the requirement that states 

have SIPs that address regional haze and 

address the requirement that emissions 

from a state do not interfere with 

measures of other states to protect 

visibility. 

A. Regional Haze 

In 1990, Congress added section 169B 

to the CAA to address regional haze 

issues, and we promulgated regulations 

addressing regional haze in 1999. 64 FR 

35714 (July 1, 1999), codified at 40 CFR 

part 51, subpart P. The requirements for 

regional haze, found at 40 CFR 51.308 

and 51.309, are included in our 

visibility protection regulations at 40 

CFR 51.300–309. The requirement to 

submit a regional haze SIP applies to all 

50 states, the District of Columbia and 

the Virgin Islands. States were required 

to submit a SIP addressing regional haze 

visibility impairment no later than 

December 17, 2007. 40 CFR 51.308(b). 

The AQCB submitted the BC RH SIP 

to EPA on July 28, 2011, and it adds to 

earlier RH SIP planning components 

that were submitted on December 26, 

2003. 

B. Interstate Transport and Visibility 

On July 18, 1997, we promulgated 

new NAAQS for 8-hour ozone and for 

PM2.5. 62 FR 38652. Section 110(a)(1) of 

the CAA requires states to submit SIPs 

to address a new or revised NAAQS 

within 3 years after promulgation of 

such standards, or within such shorter 

period as we may prescribe. Section 

110(a)(2)(D)(i)(II) of the Act requires that 

states have a SIP, or submit a SIP 

revision, containing provisions 

‘‘prohibiting any source or other type of 

emission activity within the state from 

emitting any air pollutant in amounts 

which will * * * interfere with 

measures required to be included in the 

applicable implementation plan for any 

other State under part C [of the CAA] 

* * * to protect visibility.’’ Because of 

the impacts on visibility from the 

interstate transport of pollutants, we 

interpret the ‘‘good neighbor’’ 

provisions of section 110 of the Act 

described above as requiring states to 

include in their SIPs either measures to 

prohibit emissions that would interfere 

with the reasonable progress goals set to 

protect Class I areas in other states, or 

a demonstration that emissions from BC 

sources and activities will not have the 

prohibited impacts on other states’ 

existing SIPs. 

The EPA received a SIP revision 

adopted by AQCB on September 12, 

2007 to address the interstate transport 

provisions of CAA 110(a)(2)(D)(i) for the 

1997 ozone and PM2.5 NAAQS. 

C. Lawsuits 

In a lawsuit in the U.S. District Court 

for the District of Columbia, 

environmental groups sued us for our 

failure to timely take action with respect 

to the regional haze requirements of the 

CAA and our regulations. In particular, 

the lawsuit alleged that we had failed to 

promulgate federal implementation 

plans (FIPs) for these requirements 

within the two-year period allowed by 

CAA section 110(c) or, in the 

alternative, fully approve SIPs 

addressing these requirements. 

As a result of this lawsuit, we entered 

into a consent decree. The consent 

decree requires that we sign a notice of 

final rulemaking addressing the regional 

haze requirements for Bernalillo County 

by November 15, 2012. We are meeting 

that requirement with the signing of this 

notice of final rulemaking. 


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Federal Register / Vol. 77, No. 230 / Thursday, November 29, 2012 / Rules and Regulations 71121 

1There are four ‘‘prongs’’ under the ‘‘good 

neighbor’’ provisions of the CAA section 

110(a)(2)(D)(i). On November 8, 2012 (75 FR 68447), 

we approved a SIP revision that air pollutant 

emissions from sources within BC do not 

significantly contribute to nonattainment of the 

1997 ozone NAAQS and the PM2.5 NAAQS in any 

other state. On September 19, 2012, we approved 

a SIP revision that air pollutant emissions from 

sources within BC do not interfere with prevention 

of significant deterioration (PSD) measures required 

in the SIP of any other state for the 1997 ozone and 

PM2.5 NAAQS. 

D. Our Proposal 

We signed our notice of proposed 

rulemaking on April 12, 2012, and it 

was published in the Federal Register 

on April 25, 2012 (77 FR 24768). In that 

notice, we provided a detailed 

description of the various regional haze 

requirements and interstate transport 

and visibility requirements. We are not 

repeating that description here; instead, 

the reader should refer to our notice of 

proposed rulemaking for further detail. 

In our proposal, we proposed to approve 

BC SIP revisions submitted on July 28, 

2011 addressing the regional haze 

requirements for the mandatory Class I 

areas under 40 CFR 51.309. We 

proposed to find that all reviewed 

components of the SIP meet the 

requirements of 40 CFR 51.309. We also 

proposed to approve a portion of the BC 

SIP revision submitted on July 30, 2007, 

for the purpose of addressing the ‘‘good 

neighbor’’ provisions of the CAA section 

110(a)(2)(D)(i) for the 1997 8-hour ozone 

NAAQS and the PM2.5 NAAQS. This 

proposal proposed to approve the 

portion of the SIP submittal that 

addresses the CAA requirement 

concerning non-interference with 

programs to protect visibility in other 

states. 

E. Public Participation 

We requested comments on all 

aspects of our proposed action and 

provided a thirty-day comment period, 

with the comment period closing on 

May 25, 2012. We received comments 

on our proposed rule that supported our 

proposed action and that were critical of 

our proposed action. In this action, we 

are responding to the comments we 

have received, taking final rulemaking 

action, and explaining the bases for our 

action. 

II. Final Action 

In this action, EPA is approving City 

of Albuquerque—Bernalillo County, 

New Mexico SIP revisions submitted on 

July 28, 2011 addressing the regional 

haze requirements for the mandatory 

Class I areas under 40 CFR 51.309. We 

find that all reviewed components of the 

SIP meet the requirements of 40 CFR 

51.309. In conjunction with this 

approval, we are also approving the 

following related rules: 20.11.46 NMAC, 

Sulfur Dioxide Emission Inventory 

Requirements; Western Backstop Sulfur 

Dioxide Trading Program (submitted 

after initial adoption on December 26, 

2003, with revisions submitted on 

September 10, 2008, and May 24, 2011) 

and 20.11.21 NMAC, Open Burning 

(submitted after initial adoption on 

December 26, 2003, with revisions 

submitted on July 28, 2011). 

We are approving a portion of the SIP 

revision submitted by the City of 

Albuquerque—Bernalillo County, New 

Mexico on July 30, 2007, for the purpose 

of addressing the ‘‘good neighbor’’ 

provisions of the CAA section 

110(a)(2)(D)(i) for the 1997 8-hour ozone 

NAAQS and the PM2.5 NAAQS.1 We are 

approving the portion of the SIP 

submittal that addresses the CAA 

requirement concerning noninterference with programs to protect 

visibility in other states. 

III. Basis for Our Final Action 

We have fully considered all 

significant comments on our proposal 

and have concluded that no changes 

from our proposal are warranted. Our 

action is based on an evaluation of BC’s 

regional haze SIP submittal against the 

regional haze requirements at 40 CFR 

51.300–51.309 and CAA sections 169A 

and 169B. A detailed explanation of 

how the Albuquerque SIP submittal 

meets these requirements is contained 

in the proposal. All general SIP 

requirements contained in CAA section 

110, other provisions of the CAA, and 

our regulations applicable to this action 

were also evaluated. The purpose of this 

action is to ensure compliance with 

these requirements. Our authority for 

action on BC’s SIP submittal is based on 

CAA section 110(k). 

We are approving BC’s regional haze 

SIP provisions because they meet the 

relevant regional haze requirements. 

Most of the adverse comments we 

received concerning our proposed 

approval of the regional haze SIP 

pertained to our proposed approval of 

the SO2 backstop trading program. 

IV. Issues Raised by Commenters and 

EPA’s Responses 

A. Comments and Responses Common 

to Participating States Regarding 

Proposed Approval of the SO2 Backstop 

Trading Program Components of the RH 

SIPS 

EPA has proposed to approve the SO2

backstop trading program components 

of the RH SIPs for all participating 

States and has done so through four 

separate proposals: For the Bernalillo 

County proposal see 77 FR 24768 (April 

25, 2012); For the Utah proposal see 77 

FR 28825 (May 15, 2012); for the 

Wyoming proposal see 77 FR 30953 

(May 24, 2012); finally, for the New 

Mexico proposal see 77 FR 36043 (June 

15, 2012). National conservation 

organizations paired with organizations 

local to each state have together 

submitted very similar, if not identical, 

comments on various aspects of EPA’s 

proposed approval of these common 

program components. These comment 

letters may be found in the docket for 

each proposal and are dated as follows: 

May 25, 2012 for Bernalillo County; July 

16, 2012 for Utah; July 23, 2012 for 

Wyoming; and July 16, 2012 for New 

Mexico. Each of the comment letters has 

attached a consultant’s report dated May 

25, 2012, and titled: ‘‘Evaluation of 

Whether the SO2 Backstop Trading 

Program Proposed by the States of New 

Mexico, Utah and Wyoming and 

Albuquerque-Bernalillo County Will 

Result in Lower SO2 Emissions than 

Source-Specific BART.’’ In this section, 

we address and respond to those 

comments we identified as being 

consistently submitted and specifically 

directed to the component of the 

published proposals dealing with the 

submitted SO2 backstop trading 

program. For our organizational 

purposes, any additional or unique 

comments found in the conservation 

organization letter that is applicable to 

this proposal (i.e., for the City of 

Albuquerque -Bernalillo County) will be 

addressed in the next section where we 

also address all other comments 

received. 

Comment: The language of the Clean 

Air Act appears to require BART. The 

commenter acknowledges that prior 

case law affirms EPA’s regulatory basis 

for having ‘‘better than BART’’ 

alternative measures, but nevertheless 

asserts that it violates Congress’ 

mandate for an alternative trading 

program to rely on emissions reductions 

from non-BART sources and excuse 

EGUs from compliance with BART. 

Response: The Clean Air Act requires 

BART ‘‘as may be necessary to make 

reasonable progress toward meeting the 

national goal’’ of remedying existing 

impairment and preventing future 

impairment at mandatory Class I areas. 

See CAA Section 169A(b)(2). In 1999, 

EPA issued regulations allowing for 

alternatives to BART based on a reading 

of the CAA that focused on the 

overarching goal of the statute of 

achieving progress. EPA’s regulations 

provided states with the option of 

implementing an emissions trading 

program or other alternative measure in 


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2The Grand Canyon Visibility Transport 

Commission, Recommendations for Improving 

Western Vistas at 32 (June 10, 1996). 

lieu of BART so long as the alternative 

would result in greater reasonable 

progress than BART. We note that this 

interpretation of CAA Section 

169A(B)(2) was determined to be 

reasonable by the D.C. Circuit in Center 

for Energy and Economic Development 

v. EPA, 398 F.3d 653, 659–660 (D.C. Cir. 

2005) in a challenge to the backstop 

market trading program under Section 

309, and again found to reasonable by 

the D.C. Circuit in Utility Air Regulatory 

Group v. EPA, 471 F.3d 1333, 1340 (D.C. 

Cir. 2006) (‘‘* * * [W]e have already 

held in CEED that EPA may leave states 

free to implement BART-alternatives so 

long as those alternatives also ensure 

reasonable progress.’’). Our regulations 

for alternatives to BART, including the 

provisions for a backstop trading 

program under Section 309, are 

therefore consistent with the Clean Air 

Act and not in issue in this action 

approving a SIP submitted under those 

regulations. We have reviewed the 

submitted 309 trading program SIPs to 

determine whether each has the 

required backstop trading program (see 

40 CFR 51.309(d)(4)(v)), and whether 

the features of the program satisfy the 

requirements for trading programs as 

alternatives to BART (see 40 CFR 

51.308(e)(2)). Our regulations make 

clear that any market trading program as 

an alternative to BART contemplates 

market participation from a broader list 

of sources than merely those sources 

that are subject to BART. See 40 CFR 

51.308(e)(2)(i)(B). 

Comment: The submitted 309 Trading 

Program is defective because only 3 of 

9 Transport States remain in the 

program. The Grand Canyon Visibility 

Transport Commission Report clearly 

stated that the program must be 

‘‘comprehensive.’’ The program fails to 

include the other Western States that 

account for the majority of sulfate 

contribution in the Class I areas of 

participating States, and therefore Class 

I areas on the Colorado Plateau will see 

little or no visibility benefit. Nonparticipation by other Transport Region 

States compounds the program’s 

deficiencies. 

Response: We disagree that the 309 

trading program is defective because 

only 3 States remain in the program. 

EPA’s regulations do not require a 

minimum number of Transport Region 

States to participate in the 309 trading 

program, and there is no reason to 

believe that the limited participation by 

the 9 Transport States will limit the 

effectiveness of the program in the 3 

States that have submitted 309 SIPs. The 

commenter’s argument is not supported 

by the regional haze regulations and is 

demonstrably inconsistent with the 

resource commitments of the Transport 

Region States that have worked for 

many years in the WRAP to develop and 

submit SIPs to satisfy 40 CFR 51.309. At 

the outset, our regulations affirm that 

‘‘certain States * * * may choose’’ to 

comply with the 40 CFR 51.309 

requirements and conversely that ‘‘[a]ny 

Transport Region State [may] elect not 

to submit an implementation plan’’ to 

meet the optional requirements. 40 CFR 

51.309(a); see also 40 CFR 51.309(f). We 

have also previously observed how the 

WRAP, in the course of developing its 

technical analyses as the framework for 

a trading program, ‘‘understood that 

some States and Tribes may choose not 

to participate in the optional program 

provided by 40 CFR 51.309.’’ 68 FR 

33769 (June 5, 2003). Only five of nine 

Transport Region States initially opted 

to participate in the backstop trading 

program in 2003, and of those initial 

participants only Oregon and Arizona 

later elected not to submit 309 SIPs. 

We disagree with the commenter’s 

assertion that Class I areas on the 

Colorado Plateau will see little or no 

visibility benefit. Non-participating 

States must account for sulfate 

contributions to visibility impairment at 

Class I areas by addressing all 

requirements that apply under 40 CFR 

51.308. To the extent Wyoming, New 

Mexico and Utah sources ‘‘do not 

account for the majority of sulfate 

contribution’’ at the 16 class I areas on 

Colorado Plateau, there is no legal 

requirement that they account for SO2

emissions originating from sources 

outside these participating States. Aside 

from this, the modeling results detailed 

in the proposed rulemaking show 

projected visibility improvement for the 

20 percent worst days in 2018 and no 

degradation in visibility conditions on 

the 20 percent best days at all 16 of the 

mandatory Class I areas under the 

submitted 309 plan. 

Finally, we do not agree with the 

commenter’s characterization of the 

Grand Canyon Visibility Transport 

Commission Report, which used the 

term ‘‘comprehensive’’ only in stating 

the following: 

‘‘It is the intent of [the recommendation for 

an incentive-based trading program] that [it] 

include as many source categories and 

species of pollutants as is feasible and 

technically defensible. This preference for a 

‘comprehensive’ market is based upon the 

expectation that a comprehensive program 

would be more effective at improving 

visibility and would yield more cost-effective 

emission reduction strategies for the region 

as a whole.’’ 2

It is apparent that the Grand Canyon 

Visibility Transport Commission 

recommended comprehensive source 

coverage to optimize the market trading 

program. This does not necessitate or 

even necessarily correlate with 

geographic comprehensiveness as 

contemplated by the comment. We note 

that the submitted backstop trading 

program does in fact comprehensively 

include ‘‘many source categories,’’ as 

may also be expected for any intrastate 

trading program that any state could 

choose to develop and submit under 40 

CFR 51.308(e)(2). As was stated in our 

proposal, section 51.309 does not 

require the participation of a certain 

number of States to validate its 

effectiveness. 

Comment: The submitted 309 trading 

program is defective because the 

pollutant reductions from participating 

States have little visibility benefit in 

each other’s Class I areas. The States 

that have submitted 309 SIPs are 

‘‘largely non-contiguous’’ in terms of 

their physical borders and their air shed 

impacts. Sulfate emissions from each of 

the participating States have little effect 

on Class I areas in other participating 

States. 

Response: We disagree. The 309 

program was designed to address 

visibility impairment for the sixteen 

Class I areas on the Colorado Plateau. 

New Mexico, Wyoming and Utah are 

identified as Transport Region States 

because the Grand Canyon Visibility 

Transport Commission had determined 

they could impact the Colorado Plateau 

class I areas. The submitted trading 

program has been designed by these 

Transport Region States to satisfy their 

requirements under 40 CFR 51.309 to 

address visibility impairment at the 

sixteen Class I areas. The strategies in 

these plans are directed toward a 

designated clean-air corridor that is 

defined by the placement of the 16 Class 

I areas, not the placement of state 

borders. ‘‘Air sheds’’ that do not relate 

to haze at these Class I areas or that 

relate to other Class I areas are similarly 

not relevant to whether the 

requirements for an approvable 309 

trading program are met. As applicable, 

any Transport Region State 

implementing the provisions of Section 

309 must also separately demonstrate 

reasonable progress for any additional 

mandatory Class I Federal areas other 

than the 16 Class I areas located within 

the state. See 40 CFR 51.309(g). More 

broadly, the State must submit a longterm strategy to address these additional 

Class I areas as well as those Class I 

areas located outside the state which 

may be affected by emissions from the 

State. 40 CFR 51.309(g) and 


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Federal Register / Vol. 77, No. 230 / Thursday, November 29, 2012 / Rules and Regulations 71123 

51.308(d)(2). In developing long-term 

strategies, the Transport Region States 

may take full credit for visibility 

improvements that would be achieved 

through implementation of the strategies 

required by 51.309(d). A state’s 

satisfaction of the requirements of 

51.309(d), and specifically the 

requirement for a backstop trading 

program, is evaluated independently 

from whether a state has satisfied the 

requirements of 51.309(g). In neither 

case, however, does the approvability 

inquiry center on the location or 

contiguousness of state borders. 

Comment: The emission benchmark 

used in the submitted 309 trading 

program is inaccurate. The ‘‘better-thanBART’’ demonstration needs to analyze 

BART for each source subject to BART 

in order to evaluate the alternative 

program. The submitted 309 trading 

program has no BART analysis. The 

‘‘better-than-BART’’ demonstration does 

not comply with the regional haze 

regulations when it relies on the 

presumptive SO2 emission rate of 0.15 

lb/MMBtu for most coal-fired EGUs. The 

presumptive SO2 limits are 

inappropriate because EPA has 

elsewhere asserted that ‘‘presumptive 

limits represented control capabilities at 

the time the BART Rule was 

promulgated, and that [EPA] expected 

that scrubber technology would 

continue to improve and control costs 

would continue to decline.’’ 77 Fed. 

Reg. 14614 (March 12, 2012). 

Response: We disagree that the 

submitted 309 trading program requires 

an analysis that determines BART for 

each source subject to BART. Source 

specific BART determinations are not 

required to support the better-thanBART demonstration when the 

‘‘alternative measure has been designed 

to meet a requirement other than 

BART.’’ See 40 CFR 51.308(e)(2)(i)(C). 

The requirements of Section 309 are 

meant to implement the 

recommendations of the Grand Canyon 

Visibility Transport Commission and 

are regulatory requirements ‘‘other than 

BART’’ that are part of a long-term 

strategy to achieve reasonable progress. 

As such, in its analysis, the State may 

assume emission reductions ‘‘for similar 

types of sources within a source 

category based on both source-specific 

and category-wide information, as 

appropriate.’’ See id. The 309 States 

used this approach in developing their 

emission benchmark, and we view it to 

be consistent with what we have 

previously stated regarding the 

establishment of a BART benchmark. 

Specifically, we have explained that 

States designing alternative programs to 

meet requirements other than BART 

‘‘may use simplifying assumptions in 

establishing a BART benchmark based 

on an analysis of what BART is likely 

to be for similar types of sources within 

a source category.’’ 71 FR 60619 (Oct. 

13, 2006). 

We also previously stated that ‘‘we 

believe that the presumptions for EGUs 

in the BART guidelines should be used 

for comparisons to a trading program or 

other alternative measure, unless the 

State determines that such 

presumptions are not appropriate.’’ Id. 

Our reasoning for this has also long 

been clear. While EPA recognizes that a 

case-by-case BART analysis may result 

in emission limits more stringent than 

the presumptive limits, the presumptive 

limits are reasonable and appropriate for 

use in assessing regional emissions 

reductions for the better than BART 

demonstration. See 71 FR 60619 (‘‘the 

presumptions represent a reasonable 

estimate of a stringent case BART 

because they would be applied across 

the board to a wide variety of units with 

varying impacts on visibility, at power 

plants of varying size and distance from 

Class I areas’’). EPA’s expectation that 

scrubber technology would continue to 

improve and that control costs would 

continue to decline is a basis for not 

regarding presumptive limits as a 

default or safe harbor BART 

determination when the BART 

Guidelines otherwise call for a 

complete, case-by-case analysis. We 

believe it was reasonable for the 

developers of the submitted trading 

program to use the presumptive limits 

for EGUs in establishing the emission 

benchmark, particularly since the 

methodology used to establish the 

emission benchmark was established 

near in time to our promulgation of the 

presumptive limits as well as our 

guidance that they should be used. We 

do not think the assumptions used at 

the time the trading program was 

developed, including the use of 

presumptive limits, were unreasonable. 

Moreover, the commenter has not 

demonstrated how the use of 

presumptive limits as a simplifying 

assumption at that time, or even now, 

would be flawed merely because EPA 

expects that scrubber technology and 

costs will continue to improve. 

Comment: The presumptive SO2

emission rate overstates actual 

emissions from sources that were 

included in the BART benchmark 

calculation. In addition, States in the 

Grand Canyon Visibility Transport 

Region have established or proposed 

significantly more stringent BART limits 

for SO2. Using actual SO2 emission data 

for EGUs, SO2 emissions would be 

130,601 tpy, not the benchmark of 

141,859 tpy submitted in the 309 

trading program. Using a combination of 

actual emissions and unit-specific 

BART determinations, the SO2

emissions would be lower still at 

123,529 tpy. Finally, the same data EPA 

relied on to support its determination 

that reductions under the Cross State 

Air Pollution Rule are ‘‘better-thanBART’’ would translate to SO2

emissions of 124,740 tpy. These 

analyses show the BART benchmark is 

higher than actual SO2 emissions 

reductions achievable through BART. It 

follows that the submitted 309 trading 

program is flawed because it cannot be 

deemed to achieve ‘‘greater reasonable 

progress’’ than BART. 

Response: The BART benchmark 

calculation does not overstate emissions 

because it was not intended to assess 

actual emissions at BART subject 

sources nor was it intended to assess the 

control capabilities of later installed 

controls. Instead, the presumptive SO2

emission rate served as a necessary 

simplifying assumption. When the 

States worked to develop the 309 

trading program, they could not be 

expected to anticipate the future 

elements of case-by-case BART 

determinations made by other States (or 

EPA, in the case of a BART 

determination through any federal 

implementation plan), nor could they be 

expected to anticipate the details of 

later-installed SO2 controls or the future 

application of enforceable emission 

limits to those controls. The emissions 

projections by the WRAP incorporated 

the best available information at the 

time from the states, and utilized the 

appropriate methods and models to 

provide a prediction of emissions from 

all source categories in this planning 

period. In developing a profile of 

planning period emissions to support 

each state’s reasonable progress goals, as 

well as the submitted trading program, 

it was recognized that the final control 

decisions by all of the states were not 

yet complete, including decisions as 

they may pertain to emissions from 

BART eligible sources. Therefore, we 

believe it is appropriate that the analysis 

and demonstration is based on data that 

was available to the States at the time 

they worked to construct the SO2

trading program. The States did make 

appropriate adjustments based on 

information that was available to them 

at the time. Notably, the WRAP 

appropriately adjusted its use of the 

presumptive limits in the case of 

Huntington Units 1 and 2 in Utah, 

because those units were already subject 

to federally enforceable SO2 emission 

rates that were lower than the 


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3The trading program can only be replaced via 

future SIP revisions submitted for EPA approval 

that will meet the BART and reasonable progress 

requirements of 51.308. See 40 CFR 

51.309(d)(4)(vi)(A). 

presumptive rate. The use of actual 

emissions data after the 2006 baseline is 

not relevant to the demonstration that 

has been submitted. 

Comment: SO2 emissions under the 

309 trading program would be 

equivalent to the SO2 emissions if 

presumptive BART were applied to each 

BART-subject source. Because the 

reductions are equivalent, the submitted 

309 trading program does not show, by 

‘‘the clear weight of the evidence,’’ that 

the alternative measure will result in 

greater reasonable progress than would 

be achieved by requiring BART. In view 

of the reductions being equivalent, it is 

not proper for EPA to rely on ‘‘nonquantitative factors’’ in finding that the 

SO2 emissions trading program achieves 

greater reasonable progress. 

Response: We recognize that the 2018 

SO2 milestone equals the BART 

benchmark and that the benchmark 

generally utilized the presumptive 

limits for EGUs, as was deemed 

appropriate by the States who worked 

together to develop the trading program. 

If the SO2 milestone is exceeded, the 

trading program will be activated. We 

note, moreover, that the 2018 milestone 

constitutes an emissions cap on sulfur 

dioxide emissions that will persist after 

2018.3 Under this framework, sources 

that would otherwise be subject to the 

trading program have incentives to 

make independent reductions to avoid 

activation of the trading program. We 

cannot discount that the 2003 309 SIP 

submittal may have already influenced 

sources to upgrade their plants before 

any case-by-case BART determination 

under Section 308 may have required it. 

In addition, the trading program was 

designed to encourage early reductions 

by providing extra allocations for 

sources that made reductions prior to 

the program trigger year. Permitting 

authorities that would otherwise permit 

increases in SO2 emissions for new 

sources would be equally conscious of 

the potential impacts on the 

achievement of the milestone. We note 

that the most recent emission report for 

the year 2010 shows a 35% reduction in 

emissions from 2003. The 309 trading 

program is designed as a backstop such 

that sources would work to accomplish 

emission reductions through 2018 that 

would be superior to the milestone and 

the BART benchmark. If instead the 

backstop trading program is triggered, 

the sources subject to the program 

would be expected to make any 

reductions necessary to achieve the 

emission levels consistent with each 

source’s allocation. We do not believe 

that the ‘‘clear weight of the evidence’’ 

determination referenced in 40 CFR 

51.308(e)(2)(E)—in short, a 

determination that the alternative 

measure of the 309 trading program 

achieves greater reasonable progress 

than BART—should be understood to 

prohibit setting the SO2 milestone to 

equal the BART benchmark. Our 

determination that the 2018 SO2

milestone and other design features of 

the 309 SIP will achieve greater 

reasonable progress than would be 

achieved through BART is based on our 

understanding of how the SIP will 

promote and sustain emission 

reductions of SO2 as measured against a 

milestone. Sources will be actively 

mindful of the participating states’ 

emissions inventory and operating to 

avoid exceeding the milestone, not 

trying to maximize their emissions to be 

equivalent to the milestone, as this 

comment suggests. 

Comment: In proposing to find that 

the SO2 trading program achieves 

greater reasonable progress than BART, 

EPA’s reliance on the following features 

of the 309 trading program is flawed: 

Non-BART emission reductions, a cap 

on new growth, and a mass-based cap 

on emissions. The reliance on nonBART emission reductions is ‘‘a hollow 

promise’’ because there is no evidence 

that the trading program will be 

triggered for other particular emission 

sources, and if the program is never 

triggered there will be no emission 

reductions from smaller non-BART 

sources. The reliance on a cap on future 

source emissions is also faulty because 

there is no evidence the trading program 

will be triggered, and thus the cap may 

never be implemented. Existing 

programs that apply to new sources will 

already ensure that SO2 emissions from 

new sources are reduced to the 

maximum extent. EPA’s discussion of 

the advantages of a mass-based cap is 

unsupported and cannot be justified. 

EPA wrongly states that a mass-based 

cap based on actual emissions is more 

stringent than BART. There should not 

be a meaningful gap between actual and 

allowable emissions under a proper 

BART determination. A mass-based cap 

does not effectively limit emissions 

when operating at lower loads and, as 

an annual cap, does not have restrictive 

compliance averaging. EPA’s argument 

implies that BART limits do not apply 

during startup, shutdown or 

malfunction events, which is not 

correct. The established mass-based cap 

would allow sources to operate their 

SO2 controls less efficiently, because 

some BART-subject EGUs already 

operate with lower emissions than the 

presumptive SO2 emission rate of 0.15 

lb/MMBtu and because some EGUs were 

assumed to be operating at 85% 

capacity when their capacity factor (and 

consequently their S02 emissions in tpy) 

was lower. 

Response: We disagree that it is 

flawed to assess the benefits found in 

the distinguishing features of the trading 

program. The backstop trading program 

is not specifically designed so that it 

will be activated. Instead sources that 

are covered by the program are on 

notice that it will be triggered if the 

regulatory milestones are not achieved. 

Therefore, the backstop trading program 

would be expected to garner reductions 

to avoid its activation. It also remains 

true that if the trading program is 

activated, all sources subject to the 

program, including smaller non-BART 

sources would be expected to secure 

emission reductions as may be 

necessary to meet their emission 

allocation under the program 

We also disagree that the features of 

the 2018 milestone as a cap on future 

source emissions and as a mass-based 

cap has no significance. As detailed in 

our proposal, the submitted SIP is 

consistent with the requirement that the 

2018 milestone does indeed continue as 

an emission cap for SO2 unless the 

milestones are replaced by a different 

program approved by EPA as meeting 

the BART and reasonable progress 

requirements under 51.308. Future 

visibility impairment is prevented by 

capping emissions growth from those 

sources not eligible under the BART 

requirements, BART sources, and from 

entirely new sources in the region. The 

benefits of a milestone are therefore 

functionally distinct from the control 

efficiency improvements that could be 

gained at a limited number of BART 

subject sources. While BART-subject 

sources may not be operating at 85% 

capacity today, we believe the WRAP’s 

use of the capacity assumption in 

consideration of projected future energy 

demands in 2018 was reasonable for 

purposes of the submitted 

demonstration. While BART requires 

BART subject sources to operate SO2

controls efficiently, this does not mean 

that an alternative to BART thereby 

allows, encourage, or causes sources to 

operate their controls less efficiently. 

On the contrary, we find that the SIP, 

consistent with the well-considered 309 

program requirements, functions to the 

contrary. Sources will be operating their 

controls in consideration of the 

milestone and they also remain subject 

to any other existing or future 


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4This particular comment was not submitted in 

response to the proposal to approve Albuquerque’s 

309 trading program, the earliest published 

proposal. It was consistently submitted in the 

comment periods for the proposals to approve the 

309 trading programs for NM, WY and UT, which 

were later in time. 

requirements for operation of SO2

controls. 

We also disagree with the 

commenter’s contention that existing 

programs are equivalent in effect to the 

emissions cap. EPA’s new source review 

programs are designed to permit, not 

cap, source growth, so long as the 

national ambient air quality standards 

and other applicable requirements can 

be achieved. Moreover, we have not 

argued that BART does not apply at all 

times or that emission reductions under 

the cap are meant to function as 

emission limitations are made to meet 

the definition of BART (40 CFR 51.301). 

The better-than-BART demonstration is 

not, as the comment would have it, 

based on issues of compliance averaging 

or how a BART limit operates in 

practice at an individual facility. 

Instead, it is based on whether the 

submitted SIP follows the regulatory 

requirements for the demonstration and 

evidences comparatively superior 

visibility improvements for the Class I 

areas it is designed to address. 

Comment: The submitted 309 SIP will 

not achieve greater reasonable progress 

than would the requirement for BART 

on individual sources. The BART 

program ‘‘if adequately implemented’’ 

will promote greater reasonable 

progress, and EPA should require BART 

on all eligible air pollution sources in 

the state. EPA’s proposed approval of 

the 309 trading program is ‘‘particularly 

problematic’’ where the BART sources 

cause or contribute to impairment at 

Class I areas which are not on the 

Uniform Rate of Progress glide-path 

towards achieving natural conditions. 

EPA should require revisions to provide 

for greater SO2 reductions in the 309 

program, or it should require BART 

reductions on all sources subject to 

BART for SO2.

Response: We disagree with the issues 

discussed in this comment. As 

discussed in other comments, we have 

found that the state’s SIP submitted 

under the 309 program will achieve 

greater reasonable progress than sourceby-source BART. As the regulations 

housed within section 51.309 make 

clear, States have an opportunity to 

submit regional haze SIPs that provide 

an alternative to source-by-source BART 

requirements. Therefore, the 

commenter’s assertion that we should 

require BART on all eligible air 

pollution sources in the state is 

fundamentally misplaced. The 

commenter’s use of the Uniform Rate of 

Progress (URP) as a test that should 

apparently be applied to the adequacy 

of the 309 trading program as a BART 

alternative is also misplaced, as there is 

no requirement in the regional haze rule 

to do so. 

Comment: The 309 trading program 

must be disapproved because it does not 

provide for ‘‘steady and continuing 

emissions reductions through 2018’’ as 

required by 40 CFR 51.309(d)(4)(ii). The 

program establishes its reductions 

through milestones that are set at three 

year intervals. It would be arbitrary and 

capricious to conclude these reductions 

are ‘‘steady’’ or ‘‘continuous.’’ 

Response: We disagree and find that 

the reductions required at each 

milestone demonstrate steady and 

continuing emissions reductions. The 

milestones do this by requiring regular 

decreases. These decreases occur in 

intervals ranging from one to three years 

and include administrative evaluation 

periods with the possibility of 

downward adjustments of the 

milestone, if warranted. The interval 

under which ‘‘steady and continuing 

emissions reductions through 2018’’ 

must occur is not defined in the regional 

haze rule. We find the milestone 

schedule and the remainder of the 

trading program submitted by City of 

Albuquerque-Bernalillo County does in 

fact reasonably provide for ‘‘steady and 

continuing emissions reductions 

through 2018.’’ 

Comment: The WRAP attempts to 

justify the SO2 trading program because 

SO2 emissions have decreased in the 

three Transport Region states relying on 

the alternative program by 33% between 

1990–2000. The justification fails 

because the reductions were made prior 

to the regional haze rule. The reliance 

on reductions that predate the regional 

haze rule violates the requirement of 40 

CFR 51.308(e)(2)(iv) that BART 

alternatives provide emission 

reductions that are ‘‘surplus’’ to those 

resulting from programs implemented to 

meet other Clean Air Act Requirements. 

Response: We did not focus on the 

WRAP’s discussion of early emission 

reductions in our proposal. However, 

we do not agree with this comment. The 

WRAP’s statements regarding past air 

quality improvements are not contrary 

to the requirement that reductions 

under a trading program be surplus. 

Instead, the WRAP was noting that 

forward-planning sources had already 

pursued emission reductions that could 

be partially credited to the design of the 

309 SIP. We note that the most recent 

emission report for the year 2010 shows 

a 35% reduction in emissions from 

2003. Sources that make early 

reductions prior to the program trigger 

year may acquire extra allocations 

should the program be triggered. This is 

an additional characteristic feature of 

the backstop trading program that 

suggests benefits that would be realized 

even without triggering of the program 

itself. The surplus emission reduction 

requirement for the trading program is 

not in issue, because the existence of 

surplus reductions is studied against 

other reductions that are realized ‘‘as of 

baseline date of the SIP.’’ The 1990– 

2000 period plainly falls earlier than the 

baseline date of the SIP, so we disagree 

that the WRAP’s discussion of that 

period was problematic or violative of 

40 CFR 51.308(e)(2)(iv), regarding 

surplus reductions. 

Comment: EPA must correct 

discrepancies between the data 

presented in the 309 SIP submittals.4

There are discrepancies in what has 

been presented as the results of WRAP 

photochemical modeling. The New 

Mexico RH SIP proposal by EPA shows, 

for example, that the 20% worst days at 

Grand Canyon National Park have 

visibility impairment of 11.1 deciviews, 

while the other EPA proposals show 

11.3 deciviews. The discrepancy 

appears to be due to the submittals 

being based on different modeling 

scenarios developed by the WRAP. EPA 

must explain and correct the 

discrepancies and ‘‘re-notice’’ a new 

proposed rule containing the correct 

information. 

Response: We agree that there are 

discrepancies in the numbers in Table 1 

of the proposal notices. The third 

column of the table below shows the 

modeling results presented in Table 1 of 

the Albuquerque, Wyoming and Utah 

proposals. The modeling results in the 

New Mexico proposal Table 1 are 

shown in the fourth column. The 

discrepancies come from the State’s 

using different preliminary reasonable 

progress cases developed by the WRAP. 

The Wyoming, Utah and Albuquerque 

proposed notices incorrectly identify 

the Preliminary Reasonable Progress 

case as the PRP18b emission inventory 

instead of correctly identifying the 

presented data as modeled visibility 

based on the ‘‘prp18a’’ emission 

inventory. The PRP18a emission 

inventory is a predicted 2018 emission 

inventory with all known and expected 

controls as of March 2007. The 

preliminary reasonable progress case 

(‘‘PRP18b’’) used by New Mexico is the 

more updated version produced by the 

WRAP with all known and expected 

controls as of March 2009. Thus, we are 

correcting Table 1, column 5 in the 


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71126 Federal Register / Vol. 77, No. 230 / Thursday, November 29, 2012 / Rules and Regulations 

Wyoming, Utah and Albuquerque of our 

proposed notices to include model 

results from the PRP18b emission 

inventory, consistent with the New 

Mexico proposed notice and the fourth 

column in the table below. We are also 

correcting the description of the 

Preliminary Reasonable Progress Case 

(referred to as the PRP18b emission 

inventory and modeled projections) to 

reflect that this emission inventory 

includes all controls ‘‘on the books’’ as 

of March 2009. 

Class I area State 

2018 

Preliminary 

reasonable 

progress 

PRP18a case 

(deciview) 

2018 

Preliminary 

reasonable 

progress 

PRP18b case 

(deciview) 

Grand Canyon National Park .................................................................................................................... AZ 11.3 11.1 

Mount Baldy Wilderness ........................................................................................................................... AZ 11.4 11.5 

Petrified Forest National Park ................................................................................................................... AZ 12.9 12.8 

Sycamore Canyon Wilderness ................................................................................................................. AZ 15.1 15.0 

Black Canyon of the Gunnison National Park Wilderness ....................................................................... CO 9.9 9.8 

Flat Tops Wilderness ................................................................................................................................ CO 9.0 9.0 

Maroon Bells Wilderness .......................................................................................................................... CO 9.0 9.0 

Mesa Verde National Park ........................................................................................................................ CO 12.6 12.5 

Weminuche Wilderness ............................................................................................................................ CO 9.9 9.8 

West Elk Wilderness ................................................................................................................................. CO 9.0 9.0 

San Pedro Parks Wilderness .................................................................................................................... NM 9.8 9.8 

Arches National Park ................................................................................................................................ UT 10.9 10.7 

Bryce Canyon National Park .................................................................................................................... UT 11.2 11.1 

Canyonlands National Park ...................................................................................................................... UT 10.9 10.7 

Capitol Reef National Park ....................................................................................................................... UT 10.5 10.4 

Zion National Park .................................................................................................................................... UT 13.0 12.8 

Section 309 requires Transport Region 

States to include a projection of the 

improvement in visibility expected 

through the year 2018 for the most 

impaired and least impaired days for 

each of the 16 Class I areas on the 

Colorado Plateau. 40 CFR 51.309(d)(2). 

As explained in the preamble to the 

1999 regional haze regulations, EPA 

included this requirement to ensure that 

the public would be informed on the 

relationship between chosen emissions 

control measures and their effect on 

visibility. 64 FR at 35751. Given the 

purpose of this requirement, we do not 

consider the discrepancies noted above 

to be significant and are not re-noticing 

our proposed rulemaking as the 

discrepancies do not change our 

proposed conclusion that SIP submitted 

by City of Albuquerque—Bernalillo 

County contains reasonable projections 

of the visibility improvements expected 

at the 16 Class I areas at issue. The 

PRP18a modeling results show 

projected visibility improvement for the 

20 percent worst days from the baseline 

period to 2018. The PRP18b modeling 

results show either the same or 

additional visibility improvement on 

the 20 percent worst days beyond the 

PRP18a modeling results. We also note 

there are two discrepancies in New 

Mexico’s Table 1, column four 

compared to the other participating 

States’ notices. The 2018 base case 

visibility projection in the New Mexico 

proposed notice for Black Canyon of the 

Gunnison National Park Wilderness and 

Weminuche Wilderness should be 

corrected to read 10.1 deciview rather 

than 10.0. Notwithstanding the 

discrepancies described above, we 

believe that the BC SIP adequately 

projects the improvement in visibility 

for purposes of Section 309. 

B. Additional Comments 

Comment: The regional haze 

regulations at 40 CFR 51.308(e)(2)(i)(B) 

require that ‘‘each BART-eligible source 

in the State must be subject to the 

requirements of the alternative program, 

[and] have a federally enforceable 

emission limitation determined by the 

State and approved by EPA as meeting 

BART * * *’’ The sole coal-fired 

electric generating units (‘‘EGUs’’) that 

are subject to BART in New Mexico are 

the four units at the San Juan Generating 

Station (‘‘SJGS’’). While the BC RH SIP 

lists SJGS as a BART eligible source, it 

fails to identify a federally enforceable 

emission limitation for SO2 that is 

determined to be BART by the State and 

has been approved by EPA as meeting 

BART. As such, the BC RH SIP fails to 

comply with 40 CFR 51.308(e)(2)(i)(B). 

Response: This comment presents a 

flawed reading of our regulations by 

inserting the word ‘‘and’’ where it does 

not, in fact, appear in the language of 40 

CFR 51.308(e)(2)(i)(B). 40 CFR 

51.308(e)(2)(i)(B) requires that ‘‘each 

BART-eligible source in the State must 

be subject to the requirements of the 

alternative program, have a federally 

enforceable emission limitation 

determined by the State and approved 

by EPA as meeting BART in accordance 

with section 302(c) or paragraph (e)(1) 

of this section, or otherwise addressed 

under paragraphs (e)(1) or (e)(4) of this 

section.’’ This section of the rule 

requires that each BART-eligible source 

be covered by the alternative program or 

satisfy the BART requirements by either 

participation in a ‘‘Transport Rule 

Federal Implementation Plan’’ under 

paragraph (e)(4) or by determining 

BART for the source under paragraph 

(e)(1). Because there are no BARTeligible sources in Bernalillo County, 

the requirement to make BART 

determinations does not apply. As was 

detailed in the proposal, the alternative 

program satisfies the requirements of 40 

CFR 51.308(e)(2)(i)(B), because all 

BART-eligible sources are covered by 

the alternative program. We also note 

the alternative program goes further to 

additionally cover point sources that 

have actual emissions of SO2 greater 

than 100 tons per year (sources meeting 

the requirements of 20.2.81.101. 

NMAC). 

Comment: The BC RH SIP also fails to 

comply with 40 CFR 51.309(g), which 

requires that SIPs address impacts to 

Class I areas not located on the Colorado 

plateau. 40 CFR 51.309(g). States are 

required to submit air quality modeling 

or other reliable evidence revealing 

visibility impacts and establishing that 

reasonable progress goals will be met. In 

December 2010 and February 2011, EPA 

informed Bernalillo County that its SIP 

failed to comply with 40 CFR 

51.309(g)(1) and (2) because it did not 

submit evidence showing Bernalillo 


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Federal Register / Vol. 77, No. 230 / Thursday, November 29, 2012 / Rules and Regulations 71127 

5Correction of WRAP region Plan02d CMAQ 

visibility modeling results on TSS for Regional 

Haze Planning—Final Memorandum, June 30, 2011, 

available at: http://vista.cira.colostate.edu/tss/help/ 

plan02d_rev.pdf. 

6AQD exhibit#5 EPA Docket EPA–R06–OAR– 

2008–0702–0013 beginning at page 227. 

County’s effects on visibility in Class I 

areas in New Mexico, such as Gila 

Wilderness and Carlsbad Cavern. EPA 

Docket EPA–R06–OAR–2008–0702– 

0011 at pages 110–111 and 126–127. 

EPA determined that SO2 emissions in 

New Mexico were projected to increase 

from 4,966 tpy in 2002 to 14,073 tpy by 

2018 with nearly 30% of the 2018 

emissions coming from Bernalillo 

County. Id. EPA also determined that a 

significant increase in NOX emissions 

from Bernalillo County was projected to 

occur over this same time period. Id. 

EPA asked Bernalillo County to conduct 

visibility modeling to determine its 

impacts to Class I areas and to explain 

how reasonable progress goals would be 

met in light of significant emissions 

increases. Id. 

The commenters state that they were 

unable to identify any visibility 

modeling or other analysis conducted 

by Bernalillo County to address EPA’s 

concerns. The commenters request an 

opportunity to review any visibility 

modeling or related analysis and that 

EPA reject the BC RH SIP until these 

issues are fully addressed. 

Response: The letters referred to by 

the commenter state that the analysis 

with regard to the requirements of 40 

CFR 51.309(g)(1) and (2) in BC’s draft 

SIP revision shared with EPA in 2010 

may be incomplete. Specifically, the 

qualitative analysis provided in 

‘‘Appendix 2007–H’’ and ‘‘Addendum 

to Appendix 2007–H’’ addressed the 

impact of BC’s emissions on nearby 

Class I areas, but did not include 

information on the inaccuracy and overprediction in the 2018 WRAP emission 

projections for NOX and SO2 emissions 

in BC, or the effect of an accurate 

emission inventory with respect to 

modeled visibility degradation at Gila 

Wilderness and Carlsbad Caverns. 

With respect to the above mentioned 

modeled degradation at Gila 

Wilderness, an error in data retrieval 

affected initial results for modeled 

visibility conditions at Gila Wilderness 

in 2002 and indicated that visibility 

would degrade from 2002 to 2018. This 

error was corrected and the updated 

submitted data indicates a predicted 

improvement in visibility conditions on 

the 20% worst days and no degradation 

of visibility on the 20% best days.5 For 

Carlsbad Caverns, NMED provided 

modeling data that demonstrates that 

significant projected growth in 

emissions by 2018 from Mexico are 

responsible for the degradation in 

visibility conditions on the 20% best 

days at this Class I area (Section 11.3.3 

of the NM RH 309(g) SIP submittal). 

WRAP visibility modeling results with 

Mexico emissions held constant from 

2002 to 2018 show a slight improvement 

in visibility conditions at Carlsbad 

Caverns on the 20% best days. 

Therefore, the initial modeled visibility 

degradation at both Gila Wilderness and 

Carlsbad Caverns was addressed 

without a need to further evaluate the 

impact of over-estimated NOX and SO2

emissions in BC. 

Furthermore, BC provided additional 

information in Appendix 2010–B of the 

BC RH SIP 6 that included an evaluation 

of emission inventory trends for 2002, 

2005, and 2008 for NOX and SO2

emissions for Bernalillo County. The 

analysis in the BC RH SIP submittal 

identifies some inaccuracies in the 

emission inventories used by the WRAP 

to model the 2002 baseline and the 2018 

future case. The 2002 and 2018 

emission projections are higher than 

expected when compared to the 

reduction in SO2 emissions observed in 

the actual emissions inventories for 

2002, 2005 and 2008. Table 5 of our 

proposed approval of the BC RH SIP (77 

FR 24790) shows a comparison of 

emission data from Bernalillo County 

and a trend of decreasing emissions 

compared to emissions included in the 

WRAP estimates and photochemical 

modeling, projecting a large increase of 

both NOx and SO2. Based on the 

information provided in BC RH SIP 

submittal, we agree with the 

determination that visibility impacts at 

the nearby Class I areas due to area and 

mobile emission sources in Bernalillo 

County are overestimated in the WRAP 

2002 and 2018 visibility modeling. The 

emission trends for 2002 through 2008 

(BC RH SIP submittal Appendix 2010– 

B) indicate that emissions of NOX and 

SO2 within Bernalillo County are 

declining and therefore visibility 

impairment due to these emissions are 

also anticipated to decrease from their 

current low levels presented in 

Appendix 2007–H and in the addendum 

to Appendix 2007–H of the BC RH SIP. 

We find that BC adequately evaluated 

the Class I areas that may be impacted 

by sources of air pollution within 

Bernalillo County and BC adequately 

determined and demonstrated that, at 

this time, it is improbable that sources 

located within the county cause or 

contribute to visibility impairment in a 

Class I area located outside of the 

county. The BC RH SIP submittal 

therefore complies with 40 CFR 

51.309(g)(1) and (2). 

Comment: Section 51.308(d)(1)(vi) 

states, ‘‘[t]he State may not adopt a 

reasonable progress goal that represents 

less visibility improvement than is 

expected to result from implementation 

of other requirements of the CAA during 

the applicable planning period. 40 CFR 

51.308(d)(1)(vi). Since the BC RH SIP’s 

reasonable progress goals would result 

in less visibility improvement than 

would be achieved through application 

of BART, the BC RH SIP’s reasonable 

progress goals must be revised to reflect 

reductions achievable through BART. 

Response: There are no Class I areas 

within Bernalillo County, therefore BC 

is not required to nor did they adopt 

reasonable progress goals for any Class 

I area. BC is required to address the 

apportionment of visibility impact from 

the emissions generated by sources 

within Bernalillo County at Class I areas 

outside of the county borders. As 

discussed above, we find that BC 

adequately evaluated the Class I areas 

that may be impacted by sources of air 

pollution within Bernalillo County and 

BC adequately determined and 

demonstrated that, at this time, it is 

improbable that sources located within 

the county cause or contribute to 

visibility impairment in a Class I area 

located outside of the county. 

In addition, no sources in Bernalillo 

County satisfy the definition for BARTeligible sources at 40 CFR 51.301. 

Therefore, no visibility improvement is 

anticipated due to the application of 

BART within Bernalillo County. We 

note, that BC is participating in the SO2

emission milestone and backstop 

trading program. This program applies 

to all SO2 point sources over 100 tons 

per year and requires that emissions in 

the participating States and BC remain 

below the established milestone or 

result in the triggering of the 309 

backstop trading program. The 

milestone caps these sources at actual 

emissions, and the program also 

provides for a cap on new source 

growth. The milestone schedule and the 

trading program submitted by BC and 

the participating states provide for 

steady and continuing emissions 

reductions through 2018. 

V. 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 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 


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71128 Federal Register / Vol. 77, No. 230 / Thursday, November 29, 2012 / Rules and Regulations 

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.); 

• 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. Consistent with EPA policy, 

EPA nonetheless offered consultation to 

tribes regarding the rulemaking action 

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 January 28, 2013. 

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, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur dioxides, 

Visibility, Regional haze, Best available 

control technology, Interstate transport 

of pollution, Visibility. 

Dated: November 13, 2012. 

Ron Curry, 

Regional Administrator, Region 6. 

40 CFR part 52 is amended to read as 

follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart GG—New Mexico 

■ 2. Section 52.1620 is amended: 

■ a. In paragraph (c), under the second 

table entitled ‘‘EPA Approved 

Albuquerque/Bernalillo County, NM 

Regulations’’ by revising the entry for 

part 21 (20.11.21 NMAC), Open Burning 

and adding an entry in sequential order 

for ‘‘Part 46 (20.11.46 NMAC)’’. 

■ b. In paragraph (e), under the second 

table entitled ‘‘EPA Approved 

Nonregulatory Provisions and QuasiRegulatory Measures in The New 

Mexico SIP’’ by adding new entries to 

the end of the table for ‘‘Interstate 

transport for the 1997 ozone and PM2.5

NAAQS’’ and ‘‘Regional Haze SIP under 

40 CFR 51.309’’. 

The amendments read as follows: 

§ 52.1620 Identification of plan. 

* * * * * 

(c) * * * 


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Federal Register / Vol. 77, No. 230 / Thursday, November 29, 2012 / Rules and Regulations 71129 

EPA APPROVED ALBUQUERQUE/BERNALILLO COUNTY, NM REGULATIONS

State citation Title/subject 

State 

approval/ 

effective 

date 

EPA approval date Explanation 

New Mexico Administrative Code (NMAC) Title 20—Environment Protection Chapter 11—Albuquerque/Bernalillo County Air Quality 

Control Board 

*******

Part 21 (20.11.21 

NMAC).

Open Burning .................................................... 7/11/2011 11/29/12 and FR page 

number where document begins].

* * * * * * * 

Part 46 (20.11.46 

NMAC).

Sulfur Dioxide Emission Inventory Requirements; Western Backstop Sulfur Dioxide 

Trading Program.

5/16/2011 11/29/12 and FR page 

number where document begins].

* * * * * * * 

(e) * * * 

EPA APPROVED NONREGULATORY PROVISIONS AND QUASI-REGULATORY MEASURES IN THE NEW MEXICO SIP 

Name of SIP provision Applicable geographic 

or nonattainment area 

State 

submittal/ 

effective 

date 

EPA approval date Explanation 

*******

Interstate transport for 

the 1997 ozone and 

PM2.5 NAAQS.

Bernalillo County ........... 7/30/2007 11/29/12 and FR page 

number where document begins].

Revisions to prohibit interference with measures 

required to protect visibility in any other State. 

Revisions to prohibit contribution to nonattainment in any other State approved 11/8/2010 

(75 FR 68447). 

Regional Haze SIP 

under 40 CFR 51.309.

Bernalillo County ........... 7/28/2011 11/29/12 and FR page 

number where document begins].

[FR Doc. 2012–28822 Filed 11–28–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2012–0252; FRL–9737–1] 

Revisions to the California State 

Implementation Plan, San Joaquin 

Valley United Air Pollution Control 

District (SJVUAPCD) and South Coast 

Air Quality Management District 

(SCAQMD) 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is finalizing approval of 

revisions to the SJVUAPCD and 

SCAQMD portion of the California State 

Implementation Plan (SIP). This action 

was proposed in the Federal Register on 

June 21, 2012 and concerns volatile 

organic compound (VOC) emissions 

from chipping and grinding activities, 

and composting operations. We are 

approving local rules that regulate these 

emission sources under the Clean Air 

Act (CAA or the Act). 

DATES: These rules will be effective on 

December 31, 2012. 

ADDRESSES: EPA has established docket 

number EPA–R09–OAR–2012–0252 for 

this action. Generally, documents in the 

docket for this action are available 

electronically at http:// 

www.regulations.gov or in hard copy at 

EPA Region IX, 75 Hawthorne Street, 

San Francisco, California. While all 

documents in the docket are listed at 

http://www.regulations.gov, some 

information may be publicly available 

only at the hard copy location (e.g., 

copyrighted material, large maps, multivolume reports), and some may not be 

available in either location (e.g., 

confidential business information 

(CBI)). To inspect the hard copy 

materials, please schedule an 

appointment during normal business 

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: 

Robert Marinaro, EPA Region IX, (415) 

972–3019, marinaro.robert@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we,’’ ‘‘us’’ 

and ‘‘our’’ refer to EPA. 

Table of Contents 

I. Proposed Action 

II. Public Comments and EPA Responses 

III. EPA Action 

IV. Statutory and Executive Order Reviews 

I. Proposed Action 

On June 21, 2012 (77 FR 37359), EPA 

proposed to approve the following rules 

into the California SIP. 


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