Federal Register / Vol. 77, No. 228 / Tuesday, November 27, 2012 / Rules and Regulations 70693 

EPA-APPROVED TENNESSEE SOURCE-SPECIFIC REQUIREMENTS

Name of source Permit No. State 

effective date EPA approval date Explanation 

*******

Eastman Chemical Company BART Permit 066116H .......... May 9, 2012 ..... November 27, 2012 ...............

[Insert citation of publication]

BART determination. 

Eastman Chemical Company—Amendment #1.BART Permit 066116H, 

Amendment #1.

May 22, 2012 ... November 27, 2012 ...............

[Insert citation of publication]

Clarifying amendment to 

BART Determination. 

(e) * * * 

EPA-APPROVED TENNESSEE NON-REGULATORY PROVISIONS

Name of non-regulatory SIP provision 

Applicable geographic or nonattainment area 

State 

effective date EPA approval date Explanation 

*******

Regional Haze Plan—Eastman Chemical Company BART determination.Statewide .......... May 9, 2012 ..... November 27, 2012 ......

[Insert citation ................

of publication] ................

Applicable only to the Eastman Chemical BART determination. 

§ 52.2234 [Amended] 

■ 3. Amend § 52.2234 by removing and 

reserving paragraph (b). 

[FR Doc. 2012–27974 Filed 11–26–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2009–0050; FRL–9755–6] 

Approval and Promulgation of State 

Implementation Plans; State of New 

Mexico; Regional Haze Rule 

Requirements for Mandatory Class I 

Areas 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving New 

Mexico State Implementation Plan (SIP) 

revisions submitted on July 5, 2011, and 

December 1, 2003, by the Governor of 

New Mexico addressing the regional 

haze requirements for the 16 Class I 

areas covered by the Grand Canyon 

Visibility Transport Commission Report 

and a separate submittal for other 

Federal mandatory Class I areas. We are 

taking final approval action on all 

components of the State’s submittals 

except for the submitted nitrogen oxides 

(NOX) Best Available Retrofit 

Technology (BART) determination for 

the San Juan Generating Station (SJGS). 

We are also approving several SIP 

submissions offered as companion rules 

to the regional haze plan, including 

submitted regulations for the Western 

Backstop Sulfur Dioxide Trading 

Program, for the inventorying of 

emissions, for smoke management, and 

open burning. These SIP revisions were 

submitted to address the requirements 

of the Clean Air Act (CAA or Act) which 

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. EPA is 

taking this action pursuant to section 

110 of the CAA. 

DATES: This final rule is effective 

December 27, 2012. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R06–OAR–2009–0050. 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– 

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 FIP mean or refer to 

Federal Implementation Plan. 

v. The initials RH and RHR mean or 

refer to Regional Haze and Regional 

Haze Rule. 

vi. The initials NMED mean the New 

Mexico Environmental Department. 

vii. The initials NM mean or refer to 

New Mexico. 

viii. The initials BART mean or refer 

to Best Available Retrofit Technology. 


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70694 Federal Register / Vol. 77, No. 228 / Tuesday, November 27, 2012 / Rules and Regulations 

1Portions of the 2003 NM 309 RH SIP submittal 

were resubmitted without revision on January 13, 

2009. (New Mexico State Regional Haze SIP 

Clarification Letter submitted to EPA January 13, 

2009) 

ix. The initials EGUs mean or refer to 

Electric Generating Units. 

x. The initials NOX mean or refer to 

nitrogen oxides. 

xi. The initials SO2 mean or refer to 

sulfur dioxide. 

xii. The initials PM10 mean or refer to 

particulate matter with an aerodynamic 

diameter of less than 10 micrometers. 

xiii. The initials PM2.5 mean or refer 

to particulate matter with an 

aerodynamic of less than 2.5 

micrometers. 

xiv. The initials RPGs mean or refer 

to reasonable progress goals. 

xv. The initials LTS mean or refer to 

long term strategy. 

xvi. The initials RPOs mean or refer 

to regional planning organizations. 

xvii. The initials WRAP mean or refer 

to the Western Regional Air Partnership. 

xviii. The initials GCVTC mean or 

refer to the Grand Canyon Visibility 

Transport Commission. 

xix. The initials PNM mean or refer to 

the Public Service Company of New 

Mexico. 

xx. The initials SJGS mean or refer to 

the San Juan Generating Station. 

xxi. The initials WESP mean or refer 

to Wet Electrostatic Precipitators. 

xxii. The initials PJFF mean or refer 

to Pulse Jet Fabric Filters. 

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. 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. 

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. States are required to 

assure reasonable progress toward the 

national goal of achieving natural 

visibility conditions in Class I areas. 

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). 

New Mexico submitted its regional 

haze (RH) SIP to EPA on July 5, 2011, 

and it adds to earlier RH SIP planning 

components that were submitted by the 

state on December 1, 2003.1

B. 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 lawsuits 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 these lawsuits, we 

entered into a consent decree. The 

consent decree requires that we sign a 

notice of final rulemaking addressing 

the remaining regional haze 

requirements for New Mexico by 

November 15, 2012. We are meeting that 

requirement with the signing of this 

notice of final rulemaking. 

C. Our Proposal 

We signed our notice of proposed 

rulemaking on May 31, 2012, and it was 

published in the Federal Register on 

June 15, 2012 (77 FR 36044). In that 

notice, we provided a detailed 

description of the various regional haze 

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 New 

Mexico SIP revisions submitted on July 

5, 2011, and December 1, 2003, that 

address 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 note that we did not propose action 

on the submitted NOX BART 

determination for the San Juan 

Generating Station. The NOX BART 

requirement for the source is presently 

satisfied by the BART determination 

that has been promulgated under the 

federal implementation plan at 40 CFR 

52.1628. 

D. 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 

July 16, 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 New 

Mexico SIP revisions submitted on July 

5, 2011, and December 1, 2003, that 

address 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. We note 

that we have yet to propose action on 

the submitted NOX BART determination 

for the San Juan Generating Station; it 

remains a submitted pending SIP 

revision at this time. The NOX BART 

requirement for the source is presently 

satisfied by the BART determination 

that is effective under the federal 

implementation plan at 40 CFR 52.1628. 

We note that EPA issued a temporary 

stay of the effectiveness of the NM FIP 

Rule for 90 days on July 16, 2012 (77 FR 

41697) and this temporary stay was 

extended an additional 45 days to 

November 29, 2012 (October 24, 2012, 

77 FR 64908). The temporary stays were 

issued to allow for additional time to 

discuss new and potentially different 

methods for complying with the NOX

BART requirements for the SJGS and to 

receive additional information from the 

state of New Mexico required for EPA to 

consider the state’s different method 

and for further discussion among the 

stakeholders. If this approach leads to 

an additional regulatory proposal, it will 

be the subject of a separate, future rule 

making. Because today’s action does not 

include any action on the State’s NOX

BART determination for the SJGS, this 

final action is not affected by the 

ongoing discussions to consider 

replacing the NM FIP Rule. 

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 New 

Mexico’s regional haze SIP submittals 

against the regional haze rule (RHR) 

requirements at 40 CFR 51.300–51.309 


wreier-aviles on DSK5TPTVN1PROD with 
Federal Register / Vol. 77, No. 228 / Tuesday, November 27, 2012 / Rules and Regulations 70695 

and CAA sections 169A and 169B. A 

detailed explanation of how the NM SIP 

submittals meet these requirements is 

contained in the proposal (June 15, 

2012, 77 FR 36044). 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 New Mexico’s SIP submittals 

is based on CAA section 110(k). 

We are approving the State’s regional 

haze SIP provisions outlined in our 

proposal 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 state of New 

Mexico) 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) (emphasis 

added). 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 

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 DC Circuit in Center 

for Energy and Economic Development 

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

2005) in a challenge to the backstop 

market trading program under Section 

309, and again found to reasonable by 

the DC Circuit in Utility Air Regulatory 

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

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 

33,769 (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 


wreier-aviles on DSK5TPTVN1PROD with 
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2The Grand Canyon Visibility Transport 

Commission, Recommendations for Improving 

Western Vistas at 32 (June 10, 1996). 

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 

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 FR 

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 


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Federal Register / Vol. 77, No. 228 / Tuesday, November 27, 2012 / Rules and Regulations 70697 

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). 

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 

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: 


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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 S02 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 

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 New 

Mexico does in fact reasonably provide 

for ‘‘steady and continuing emissions 

reductions through 2018.’’ 

Comment: The WRAP attempts to 

justify the SO2 trading program because 


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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. 

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 

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 


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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 New Mexico 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 NM 

SIP adequately projects the 

improvement in visibility for purposes 

of Section 309. 

B. Comments on PM BART 

Comment: EPA failed to identify the 

cost-effectiveness criteria it used to 

determine that wet electrostatic 

precipitators (WESPs) were not cost 

effective at San Juan Generating Station 

(SJGS). Public Service of New Mexico’s 

(PNM’s) own analysis shows a visibility 

improvement of 0.62 deciview at Mesa 

Verde National Park as a result of 

installation of WESPs on all four units 

at SJGS at a cost of $145,000–$173,000 

per ton of PM removed. EPA remarked 

that PNM likely overestimated the cost 

of WESPs, yet failed to present the 

correct cost calculation in its proposed 

rule or reject installation of WESP as 

BART using proper cost numbers. The 

commenter states that EPA lacks the 

evidence to make this conclusion and 

that EPA must properly calculate the 

cost of WESPs at SJGS, identify the 

range of costs deemed cost-effective for 

other PM BART determinations, and 

identify objective criteria to be used for 

determining PM cost-effectiveness for 

PM controls under BART. 

Response: EPA is approving the 

state’s determination that BART for PM 

is no additional controls, and is not 

purporting to make or conduct an 

independent BART analysis. We hold to 

our original observation that the cost 

estimations presented for WESPs were 

likely overstated, but we cannot 

conclude these costs were radically 

overstated such that New Mexico, 

having more refined cost estimates, 

would have reached a different 

conclusion. We note that no 

commenters questioned New Mexico’s 

PM BART determination or its 

underlying technical analysis during the 

state’s public comment period. In 

reviewing the submitted BART 

determination, we do not agree that EPA 

is presently responsible for generating 

its own cost analysis or stating a range 

of cost-effectiveness for PM BART 

controls at SJGS. No commenters 

responding to our proposal have 

provided a basis to conclude that the 

addition of WESPs would achieve their 

objective of improving visibility in Class 

I areas in an economical way. The 

estimated average cost effectiveness of 

WESP that has been quoted by PNM is 

more than an order of magnitude larger 

(i.e., >cost/ton*10) than what other 

BART determining authorities have 

found to be cost effective in other caseby-case determinations. We have no 

record basis for assuming that the errors 

in the developed cost estimations are 

flawed to such a great degree. Nor do we 

have a reason to find that New Mexico’s 

record support was inadequate such that 

it arrived at an unreasonable 

determination. In other words, the cost 

estimations for WESP were not so 

flawed as to throw into question the 

conclusion that the incremental 

visibility benefit anticipated from 

additional controls could not justify the 

high cost to achieve a more stringent 

emission limit. 

The addition of WESP would result in 

an exorbitant incremental cost 

effectiveness value because the existing 

pulse jet fabric filters (PJFF) are 

removing much of the PM. The addition 

of WESP is estimated to only reduce PM 

emissions by an additional 69 tons per 

year (tpy) each at units 1 and 2, and 

approximately 100 tpy each at units 3 

and 4. Therefore, the addition would 

result in a high anticipated cost on a 

$/ton removed basis for WESP at SJGS, 

even if we corrected the cost estimate to 

be consistent with EPA guidance; we 

believe the cost of installation and 

operation of WESP would not be cost 

effective. We are therefore approving the 

submitted PM BART determination. 

Comment: EPA failed to propose a PM 

BART emission limit that is achievable 

with the operation of baghouses such as 

those currently installed at SJGS. Much 

lower PM emission rates are achievable 

even with SJGS’s existing technology. 

The commenter notes that the EPA is 

proposing a BART PM limit of 0.012 lb/ 

MMBtu at the nearby Four Corners 

Power Plant (FCPP) and a 10% opacity 

limit at each unit at FCPP to control PM 

emissions. Moreover, there have been 

several recent permits issued with best 

available control technology (‘‘BACT’’) 

limits at 0.010 lb/MMBtu based on 

operation of a fabric filter baghouse. The 

commenter asserts even lower levels are 

achievable based on source test data at 

some facilities. An EPA Region 9 

employee concluded back in 2002 that 

BACT for filterable PM at two existing 

pulverized coal boilers firing Powder 

River Basin coal and equipped with a 

baghouse was 0.006 lb/MMBtu based on 

a 3-hour average and monitored via EPA 

Method 5 and continuously using 

triboelectric broken bag detectors; there 

is no reason that the SJGS units could 

not achieve similar PM emission rates as 

new units. 

The filtration media determines the 

control efficiency of a baghouse for very 

small particles. There is a wide range of 

media that can be used, most of which 

are much more efficient for larger 

particles than smaller particles. Thus, 

PNM and EPA should have assumed 

lower filterable PM emissions than 

0.015 lb/MMBtu for a baghouse in their 

evaluation of PM controls. Had they 

done so, the cost of control on a dollar 

per ton of pollution removed basis 

would be lower. 

Response: The commenter is incorrect 

in summarizing the proposed PM 

emission limit for the Four Corners 

Power Plant. The proposed rule sought 

comment on an emission limit of 0.015 

lb/MMBtu on units 4 and 5 achievable 

with the existing baghouses consistent 

with our proposal for the SJGS and also 

includes a proposed 10% opacity limit. 

The proposed rule also proposed to 

require an upgrade in PM controls to 

meet an emission limit of 0.012 lb/ 

MMBtu and 10% opacity on Units 1–3, 

which is achievable either through 

installing baghouses or ESPs for these 

units. The proposal noted that because 

of the high incremental cost of both of 

these options, however, EPA was also 

asking for comment on whether the 

facility can satisfy BART by operating 

the existing venturi scrubbers to meet an 

emissions limit of 0.03 lb/MMBtu with 

a 20% opacity limit to demonstrate 

continuous compliance. The final rule 

(77 FR 51620) published on August 24, 

2012 (after the publication of our 

proposed notice) requires Units 4 and 5 

at FCPP to meet an emission limit of 

0.015 lb/MMBtu, and retains the 

existing 20 percent opacity limit. These 

PM limits are achievable through the 

proper operation of the existing 

baghouses. EPA has determined that it 

is not necessary or appropriate at this 


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5Public Service Company of New Mexico, San 

Juan Generating Station Final particulate matter 

BART analysis, PNM (August 28, 2008). 

6 Guidance for Setting Reasonable Progress Goals 

under the Regional Haze Program, June 1, 2007, 

memorandum from William L. Wehrum, Acting 

Assistant Administrator for Air and Radiation, to 

EPA Regional Administrators, EPA Regions 1–10 

(pp. 4–2, 5–1). 

time to set new PM limits for Units 1– 

3 at the FCPP. 

As stated in a BART analysis 5

developed by PNM and incorporated for 

technical support by New Mexico in the 

submitted PM BART determination, 

‘‘While the control effectiveness of the 

PJFF is usually defined by vendors at 

the outlet ductwork of the PJFF, the 

BART determination is based on the 

control effectiveness for particulate 

matter at the stack outlet. Therefore, the 

particulate matter emission rate has to 

take into account both the removal 

efficiency of the PJFF and the impacts 

of the wet FGD operation, where there 

is a potential for additional reentrainment of scrubber solids into the 

flue gas, which increases the stack 

outlet particulate matter emission 

concentration.’’ Therefore, direct 

comparison to performance of 

baghouses at other facilities or BACT 

analyses for new facilities is not 

necessarily appropriate. The PM 

emission limit at the SJGS represents 

the vendor guarantee for the 

performance of the fabric filters recently 

installed in response to the 2005 

consent decree to address PM and for 

enhanced mercury control and includes 

the additional contribution of PM 

emissions from operation of the wet 

FGD downstream of the PJFF. 

Comment: EPA’s proposed PM BART 

emission limit for SJGS is improper 

because it appears to only apply to 

filterable PM. The commenter asserts 

that EPA’s BART guidelines specify that 

BART should be evaluated and defined 

for both PM10 and PM2.5. Since EPA has 

found that the SJGS is subject to BART 

for particulate matter, EPA must 

evaluate and define BART limits for 

both PM10 and PM2.5. 

Response: We disagree that we must 

promulgate any limits or disapprove the 

PM BART determination because the 

State did not make a BART 

determination for PM2.5. The BART 

Guidelines do not specify that States 

must establish a BART limit for both 

PM10 and PM2.5. The BART Guidelines 

provide the following: 

‘‘You must look at SO2, NOX, and 

direct particulate matter (PM) emissions 

in determining whether sources cause or 

contribute to visibility impairment, 

including both PM10 and PM2.5.’’ 

[Appendix Y to Part 51, section III.A.2.] 

This language in the BART Guidelines 

was intended to clarify to States that 

when determining whether a source is 

subject to BART, the modeling 

evaluation to determine the source’s 

impact on visibility has to account for 

both PM10 and PM2.5 emissions. There 

are several instances in which we state 

in both the preamble to the RHR, and in 

the BART Guidelines that PM10 may be 

used as indicator for PM2.5 in 

determining whether a source is subject 

to BART. Neither the RHR nor the BART 

Guidelines specify that States must 

make separate BART determinations for 

PM10 and PM2.5. Therefore, we disagree 

that we must evaluate separate limits or 

disapprove the PM BART determination 

for SJGS on the basis that a BART 

determination for PM2.5 was not made. 

Furthermore, we expect that H2SO4

will be a main component of 

condensable PM emissions from the 

facility and anticipate that emissions of 

H2SO4 will be low given the type of coal 

used and the existing control 

equipment. We have imposed a limit on 

H2SO4 in the FIP of 2.6 × 10¥4 lb/ 

MMBtu (76 FR 52388) to limit the 

increase in emissions of H2SO4 expected 

from operating SCR at the SJGS units. 

C. Comments on Reasonable Progress 

Comment: EPA proposes no 

additional emission reductions from 

New Mexico’s stationary sources to 

make further progress toward achieving 

natural visibility conditions. EPA’s 

determination that this approach is 

‘‘reasonable,’’ 77 FR 36073, is counter to 

the very purpose of the Regional Haze 

program. An implementation plan must 

identify and analyze the measures 

aimed at achieving the uniform rate of 

progress (URP) and determine whether 

these measures are reasonable. If a state 

establishes an RPG that does not meet 

the URP, the state must demonstrate, on 

the basis of the four factors, that (1) 

meeting the URP isn’t reasonable; and 

(2) the RPG adopted by the state is 

reasonable. The reasonableness of 

measures that are necessary to achieve 

the uniform rate of progress is evaluated 

based on four factors: (1) The costs of 

compliance; (2) the time necessary for 

compliance; (3) the energy and non-air 

quality environmental impacts of 

compliance; and (4) the remaining 

useful life of any potentially affected 

sources. 

While EPA has established a target of 

2064 for achieving natural visibility 

conditions, under its proposed approval 

of the New Mexico SIP, natural 

visibility conditions will not be restored 

in Class I areas affected by New Mexico 

sources until much later, in some cases 

hundreds of years beyond 2064. EPA 

failed to impose any emission 

reductions from New Mexico’s largest 

anthropogenic sources of haze-causing 

pollutants beyond BART. The 

commenter supports EPA’s NOX BART 

determination at the San Juan 

Generating Station, but states that 

greater emissions reductions are 

necessary across all New Mexico 

sources of haze-causing pollution to 

achieve reasonable progress. The 

commenter states EPA’s approach in the 

NM RH SIP proposal guarantees that 

Congress’ goal of achieving natural 

visibility conditions at Class I areas will 

never be reached. EPA must require 

additional reductions of visibilityimpairing pollutants from New Mexico’s 

largest air pollution sources to meet 

reasonable progress requirements. 

Response: EPA’s Reasonable Progress 

Guidance states that the URP is not a 

presumptive target for the RPG.6 The 

state followed the proper approach in 

setting its RPGs through 2018. New 

Mexico considered the four factors 

established in section 169A of the CAA 

and in EPA’s RHR at 40 CFR 

51.308(d)(1)(i)(A). The factors are 

considered when selecting the RPGs for 

the best and worst days for each Class 

I area. New Mexico considered the costs 

of compliance, the time needed for 

compliance, the energy and non-air 

quality environmental impacts, and the 

remaining useful life of the facility for 

a wide variety of source categories. New 

Mexico also investigated additional 

control options on three refineries. The 

NMED reasonably concluded that the 

cost of additional controls was not 

warranted and concluded that the RPGs 

are reasonable given projected 

emissions reductions from 

anthropogenic sources and the fact that 

natural and out-of-state sources 

contribute significantly to haze. Because 

the State has limited ability to control 

naturally occurring wildfires and 

windblown dust, these sources of 

visibility impairment will continue to 

impact visibility at New Mexico’s Class 

I areas and limit the visibility 

improvement achievable during the 

planning period. 

The visibility improvement at issue 

here is the rate of visibility 

improvement for the first 

implementation period, which extends 

until July 31, 2018. New control 

programs in the future that reduce 

emissions may be implemented, which 

would hasten visibility improvement 

and possibly yield an earlier year to 

achieve natural conditions. Similarly, 

emission reductions in place or 

anticipated to be in place before 2018 

that were not included in the projected 


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7We note that NOX emissions from the only 

subject-to-BART source in New Mexico (evaluated 

for controls under the BART requirements) are 

greater than the next 20 largest NOX sources in the 

State combined based on evaluation of 2008 

National Emission Inventory data. 

2018 emission inventory will result in 

improved visibility improvement over 

the State’s RPGs. As explained in the 

proposal, the implementation of NOX

BART at SJGS and FCPP, as well as 

corrections to over-projections of NOX

and SO2 emissions in Bernalillo County 

would further lower 2018 emissions 

projections for both NOX and SO2, and 

result in more visibility improvement 

than predicted by the WRAP modeling 

which was the basis for setting the 

RPGs. In addition, in this action we are 

approving New Mexico’s participation 

in the SO2 emissions milestone and 

backstop trading program that applies to 

all stationary sources which emit greater 

than 100 tpy of SO2 and will result in 

emission reductions of SO2 between 

2002 and 2018. 

New Mexico will include any 

additional control measures it finds 

reasonable along with any additional 

measures implemented by contributing 

states in the next implementation 

period. For the first implementation 

period, EPA finds adequate New 

Mexico’s assessment of reasonable 

progress goals and reasonable measures 

for its long term strategy. 

Comment: New Mexico and EPA 

failed to analyze or require any air 

pollution controls under the reasonable 

progress program. Instead, EPA’s 

proposal relies on the WRAP’s general, 

non-source specific analysis of potential 

reasonable progress source categories. 

See, Docket EPA–R06–2009–0050–0014, 

Appendix E. The WRAP’s general 

source category analysis fails to identify 

any specific New Mexico sources that 

may be subject to reasonable progress 

controls. Id. The WRAP’s general source 

analysis is also factually incorrect. Table 

6–1 of the WRAP’s analysis indicates 

that there are no PM, SO2, or NOX

emissions from coal fired boilers in New 

Mexico. Id. at p. 340. To the contrary, 

coal fired boilers at SJGS, Escalante coal 

plant, Raton coal plant, and Four 

Corners all emit significant quantities of 

these criteria pollutants. Thus, reliance 

on the WRAP general source report for 

approval of the New Mexico SIP is 

arbitrary and capricious due to its 

factual inaccuracy. 

In addition, a supplemental 

reasonable progress analysis was also 

performed for the NM RH SIP. See, 

Docket EPA–R06–2009–0050–0014, 

Appendix F. This analysis was a New 

Mexico source specific analysis. 

However, this source specific analysis 

only analyzed reasonable progress 

controls at three refineries in New 

Mexico. Id. Thus, the commenter asserts 

that New Mexico has failed to analyze 

the need for or require source-specific 

reasonable progress controls at New 

Mexico’s EGU’s or other facilities 

identified in the WRAP general report, 

such as cement plants, as is mandated 

under the regional haze rule. The 

commenter claims EPA’s proposal fails 

to correct this deficiency. As such, 

EPA’s proposal fails to comply with the 

federal regional haze rules and EPA’s 

proposed approval of the SIP is arbitrary 

and capricious. Therefore, EPA must 

evaluate options for limiting NOX, PM, 

and SO2 emissions at all New Mexico 

EGUs and other large stationary sources. 

Response: We disagree with the 

commenter’s assessment of the WRAP’s 

analysis. As the commenter 

acknowledges, the WRAP analysis 

(Supplementary Information for Four 

Factor Analyses by WRAP States, 

Appendix E of the NM RH 309(g) SIP 

submittal) is a general, non-source 

specific analysis of potential controls to 

be considered in a reasonable progress 

analysis. As such, the usefulness of the 

report lies not in any identification of 

specific sources within each state, but in 

the identification of available emission 

control technologies and analysis of the 

four factors for the candidate control 

measures identified for priority 

pollutants for each emission source 

category. The report provides 

information on control efficiency, cost 

effectiveness, time needed for 

implementation, energy and other 

impacts, and information on 

considerations for the impact of 

remaining useful life on control costs. 

This source category information was 

adopted as technical support by New 

Mexico in their reasonable progress 

analysis. We disagree with the 

commenter’s claim that Table 6–1 is 

factually inaccurate because it does not 

include emissions from New Mexico 

EGUs. Table 6–1 identifies emissions 

from industrial boilers meeting the 

definition described in Subpart Db of 40 

CFR Part 60, which does not include the 

EGU sources identified in the comment. 

The supplemental WRAP analysis 

(Supplementary Information for FourFactor Analyses for Selected Individual 

Facilities in New Mexico, Appendix F 

of the NM RH 309(g) SIP) analyzed 

reasonable progress controls at three 

refineries in New Mexico at the request 

of NMED. NMED identified these three 

facilities for further site-specific 

evaluation due to emissions and 

proximity to Class I areas. For other 

source types, such as cement kilns, 

NMED relied on the WRAP general fourfactor analysis discussed above to 

inform their evaluation. New Mexico 

also relied on other additional sources 

of information as available. For 

example, in response to comments 

NMED received on the four factor 

analysis, NMED identifies that New 

Mexico through a separate process (the 

Four Corners Air Quality Task Force) 

analyzed oil and gas sources and the 

power plants in the four corners region. 

NMED did not identify any additional 

reductions in their evaluation of the 

WRAP analyses and other available 

sources of information.7

New Mexico will include any 

additional control measures it finds 

reasonable along with any additional 

measures implemented by contributing 

states in the next implementation 

period. For the first implementation 

period, EPA finds New Mexico’s 

assessment of reasonable measures for 

its long term strategy to be adequate 

with a sufficient basis for approval. 

Comment: The NM 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 

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 undersigned request an 

opportunity to review any visibility 

modeling or related analysis and that 

EPA reject the NM RH SIP until these 

issues with the Bernalillo County 


wreier-aviles on DSK5TPTVN1PROD with 
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8Correction 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. 

9AQD exhibit#5 EPA Docket EPA–R06–OAR– 

2008–0702–0013 beginning at page 227. 

component of the SIP are fully 

addressed. 

Response: 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 has 

submitted a Section 309 regional haze 

SIP for its geographic area of New 

Mexico and EPA has proposed approval 

of this SIP submittal (77 FR 24768). 

While the regional haze requirements 

for BC are addressed in their separate 

SIP submittal and our separate 

evaluation and proposed action, we 

recognize that the BC SIP submittal 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) 

of the CAA are satisfied for the entire 

State of New Mexico. As such, we find 

it is appropriate to respond to the 

commenter’s claims that the NM RH SIP 

fails to comply with 40 CFR 51.309(g) 

because of a deficiency in the BC RH 

SIP. 

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.8 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 9 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. 

A separately signed action has found 

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 

separately signed action has therefore 

found that the BC RH SIP submittal 

complies with 40 CFR 51.309(g)(1) and 

(2). 

D. Comment on Programs Related to 

Fire 

Comment: NMED noted the following 

inaccuracies in Section H, Programs 

Related to Fire, of the Proposed Rule, 

which should be corrected in the final 

rule: Section H.1.b, Evaluation of Smoke 

Dispersion, incorrectly states that SMP 

I burns may only be conducted when 

the ventilation index category is rated 

‘‘Good’’ or better, and that the burner 

must conduct visual monitoring and 

document the results in writing. In fact, 

what the New Mexico SIP provides is 

that SMP I burners have the option of 

either (1) burning during daylight hours 

at least 300 feet from an occupied 

dwelling, workplace, or place where 

people congregate; or (2) burning only 

during times when the ventilation is 

good or better and conducting visual 

monitoring along with burning. (see 

Subsection A of 20.2.65.102 NMAC) 

In addition, Section H.1.e, Air Quality 

Monitoring, incorrectly states that SMP 

I burners are required to conduct visual 

monitoring. Visual monitoring under 

SMP I is required whenever the burn is 

conducted within a one-mile radius of 

a population. 

Response: We agree with this 

comment. The proposed notice did not 

identify that Subsection A of 

20.2.65.102 NMAC also provides for the 

option (‘‘option 1’’) of burning during 

the hours from one hour after sunrise 

until one hour before sunset, at least 300 

feet from an occupied dwelling, 

workplace, or place where people 

congregate in addition to the option 

(‘‘option 2’’) described in the notice of 

limiting burning only during times 

when the ventilation index category is 

rated ‘‘Good’’ or better. In addition, the 

commenter is correct that SMP I burners 

are only required to perform visual 

monitoring if the burn is conducted 

within a one-mile radius of a population 

under option 1 described above or if the 

burn is conducted under option 2. 

Thus, we are clarifying that the terms 

of the submitted SIP under review had 

included these options and 

requirements for SMP I burns. The 

review considerations for this additional 

option would not change our conclusion 

that the Smoke Management rule meets 

the requirements to address air quality 

monitoring and evaluation of smoke 

dispersion as described in Section III.F 

of the proposed notice. 

E. Comments on Taking No Action on 

NOX BART 

Multiple commenters have 

acknowledged that our proposal did not 


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address NOX BART at the San Juan 

Generating Station, but they nonetheless 

submitted comments concerning the 

NOX BART part of New Mexico’s 2011 

Regional Haze SIP submittal (as well as 

a pending 2011 Interstate Transport SIP 

for visibility that relies on the 2011 

submitted NOX BART determination). In 

brief, several commenters urged EPA to 

take action to approve the NOX BART 

portion of the SIP submittal (leading to 

withdrawal of the FIP), while another 

commenter urges EPA ‘‘to hold to its 

final NOX BART determination at 

SJGS.’’ 

The NOX BART submittal was not 

evaluated and not in the scope of our 

original proposal. There has been no 

supplemental proposal, and the NOX

BART submittal is manifestly not part of 

today’s final action. Judicial review is 

authorized for today’s approval of the 

various parts of the SIP submittal on 

which we are taking final action. See 

CAA 307(b)(1). In contrast, the NOX

BART portion of the SIP submittal is not 

the subject of a final action ‘‘approving 

* * * any implementation plan under 

[CAA Section 110] * * * or any other 

final action of the Administrator under 

[the CAA] (including any denial or 

disapproval by the Administrator under 

subchapter I of [the CAA]).’’ Id. We 

accordingly regard the various 

comments received concerning NOX

BART to provide no grounds or 

jurisdictional basis for judicial review. 

However, commenters have made 

various assertions regarding our 

obligations to act on the NOX BART 

portion of the SIP, some aspects of 

which are factually inaccurate. We 

believe it is appropriate to respond to 

some of these remarks for the 

informational benefit of these 

stakeholders and the public. 

Comment: EPA’s proposal does not 

address the NOX BART determination 

for San Juan Generating Station that was 

submitted by New Mexico in 2011. EPA 

should act expeditiously to review and 

approve New Mexico’s BART 

determination. 

Response: We acknowledge that New 

Mexico’s submitted NOX BART 

determination for SJGS is not addressed 

by our proposal and final action. We 

also acknowledge that this part of the 

SIP submittal, at this time, remains 

pending review. Unless this part of the 

SIP submittal is withdrawn by the State 

before EPA takes final action upon it, 

the Clean Air Act requires that EPA 

takes final action to approve or 

disapprove this part of the SIP submittal 

by January 5, 2013, i.e., 18 months after 

its receipt. This requirement follows 

from the Administrator’s 

nondiscretionary duty to approve or 

disapprove SIP submittals under the 

deadlines prescribed at CAA Section 

110(k). If EPA misses the deadline 

found in this section of the CAA, the 

agency may be subject to a civil suit in 

a United States District Court that will 

order and compel the performance of 

this nondiscretionary duty. See CAA 

Section 304(a). 

Comment: One commenter asserts 

that we cannot approve New Mexico’s 

reasonable progress goals based on 

uncertain NOX BART reductions at 

SJGS. The commenter takes note that 

our proposal had stated our expectation 

that ‘‘future emission reductions will be 

achieved in compliance with the 

existing [FIP] or in compliance with the 

terms of a future-approved BART 

determination for SJGS determined to 

consistent with RHR requirements.’’ The 

commenter asserts that EPA cannot 

relax the 0.05 lb/MMbtu limit in the FIP 

unless it is judicially overturned. 

Response: We do not agree that NOX

BART reductions are uncertain in a way 

that bars approval of the submitted 

reasonable progress goals. As detailed in 

our proposal, the reasonable progress 

goals submitted to satisfy the 

requirements of 40 CFR 51.309(g) RHR 

requirements have utilized visibility 

improvements projected in WRAP 

modeling. The WRAP modeling 

includes some assumptions about future 

emissions from the SJGS and FCPP 

based on consultation with the states 

but does not include the level of NOX

reductions currently anticipated from 

implementation of BART at FCPP or 

SJGS. Our reference to the existing FIP 

or a future-approved BART 

Determination from a state SIP submittal 

was offered to merely observe that we 

expect the additional emission 

reductions will result in improved 

future visibility conditions beyond the 

visibility projections and established 

reasonable progress goals based on the 

WRAP modeling. We believe this 

provides valuable context for our review 

of the 51.309(g) SIP submittal and to 

persons who read the proposal. We 

referenced anticipated emission 

reductions at Four Corners Power Plant 

(FCPP) for the same reason, except in 

that case the emission controls for that 

emission source are not subject to the 

jurisdiction of the New Mexico 

Environment Department. We do not 

agree that BART emission limits at 

FCPP had to be finalized as a predicate 

for our action on the New Mexico 

Regional Haze SIP. We note that the 

final rule addressing BART at FCPP (77 

FR 51620) published on August 24, 

2012 (after the publication of our 

proposed notice) requires an 80% 

reduction in NOX emissions across all 

five units or for the shutdown of units 

1, 2 and 3 and emission reductions at 

Units 4 and 5 to meet an emission limit 

of 0.098 lb/MMBtu NOX, resulting in an 

87% reduction in total NOX emissions. 

As discussed elsewhere in this notice, 

we find New Mexico’s assessment of 

RPGs and long term strategy to be 

adequate, providing sufficient basis for 

our approval. We expect the state to 

include any corrections and updates to 

emission reductions in its next Regional 

Haze SIP with updated modeling to 

quantify the visibility improvement that 

results from all emission reduction 

measures in place by 2018. 

Of course, any references in the 

proposal to the existing FIP for SJGS or 

to a future-approved BART 

determination consistent with the RHR 

(i.e., from a state SIP submittal or 

amendment of the existing FIP) would 

necessarily assume that our past and 

future actions regarding NOX BART at 

SJGS will be upheld against any judicial 

challenges. Since we consider the FIP to 

have been validly promulgated and we 

have not proposed to revise its limits or 

proposed to approve any statesubmitted BART determination with 

different limits into the New Mexico 

SIP, the commenter’s contention that 

EPA may not relax the BART limit 

promulgated in the FIP is not presently 

in issue. Commenters are not barred 

from resubmitting this comment as it 

may, in their view, apply toward future 

proposals, if any, regarding NOX BART 

for SJGS. 

Comment: An existing consent decree 

that requires EPA action on ‘‘all 

remaining RH SIP elements’’ by 

November 15, 2012 requires EPA to act 

on the NOX BART element of New 

Mexico’s 2011 regional haze SIP 

submittal by that date. 

Response: The basis for the lawsuit 

that led to EPA’s entry into the 

referenced consent decree was EPA’s 

failure to ensure all regional haze 

requirements for New Mexico were 

effective on the expiration of a 2 year 

FIP clock that began when EPA found 

that New Mexico failed to submit a SIP 

revision to address all the requirements 

of the Regional Haze Rule. See CAA 

Section 110(c). The consent decree does 

not compel EPA action on any 

particular RH SIP submittal. NOX BART, 

addressed by our earlier FIP, and 

already addressed by the time of EPA’s 

entry into the consent decree is not a 

‘‘remaining’’ RH SIP element under the 

consent decree. We note our compliance 

with the consent decree is subject to 

review by the judge who maintains 

jurisdiction over it. We further note that 

EPA’s original proposal date was also 

required by this consent decree, and no 


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parties to the consent decree have 

suggested that EPA failed to follow its 

terms, either in comments on the 

proposal or to the supervising judge. 

Comment: Section 110(k)(3) of the 

CAA requires EPA to take action on the 

entire 2011 Regional Haze SIP 

submittal, which includes the NOX

BART portion which was not covered 

by the proposal. The text of Section 

110(k)(3) suggests this is required by its 

phrasing that a SIP submittal shall be 

approved ‘‘as a whole.’’ EPA cannot 

break apart a single SIP submittal and 

take final action only on certain 

individual components of the SIP. 

Response: We disagree, because we 

find that NOX BART is a severable 

component of the New Mexico Regional 

Haze SIP. We believe it can be reviewed 

and acted upon separately from the 

other components of the submitted SIP 

revision without compromising our 

approvability analysis or compromising 

the opportunities of the public to 

understand and comment on the 

proposed action. Aside from a comment 

regarding reasonable progress goals that 

we have rejected above, no comments 

have suggested otherwise. Section 

110(k)(3) does not require EPA to act on 

the entirety of a SIP submittal in one 

proposal and one final action. Instead, 

unless parts of a submittal are not 

severable from each other, EPA has the 

flexibility to propose and finalize action 

on some components of a submittal 

while deferring review of other 

independent parts. EPA’s authority to 

proceed with separate proposal and 

final actions on self-standing parts of 

submitted SIP revisions is confirmed, 

and not at all barred, by 110(k)(3). This 

is evident from innumerable past EPA 

actions reviewing submitted SIP 

revisions from state and local air quality 

authorities throughout the country; this 

long implementation history includes 

past EPA actions on SIP submittals from 

the state of New Mexico. Given that a 

State can freely package miscellaneous 

provisions dealing with different Clean 

Air Act requirements into one submittal, 

EPA generally has the discretion to act 

on severable parts of any submittal at 

different times. This discretion can 

allow prioritization of resources, may 

avoid confusion of issues for 

commenters, and may promote efficient 

review and administrative processing of 

pending submitted SIP revisions. For 

example, the NOX BART component of 

the submitted SIP revision, assuming it 

were deemed approvable in whole or in 

part, would potentially entail 

Administrator action to withdraw or 

revise the previously promulgated FIP. 

This action may not be signed by the 

Regional Administrator (as is the case 

with this final action), and it may be 

subject to the procedures and review 

requirements of CAA Section 307(d) (as 

is not the case with this final action). As 

previously discussed, we do 

acknowledge the statutory obligation to 

act on the NOX BART component of the 

submitted SIP revisions by January 5, 

2013. In so doing, our review of the 

submitted NOX BART determination 

will be subject to Section 110(k)(3), 

which generally requires approval, 

disapproval, or possible partial 

approval/partial disapproval, consistent 

with future findings on whether it meets 

the requirements of the Clean Air Act. 

Because we have not proposed action 

on the submitted NOX BART 

determination of July 2011, we deem 

this comment (as well as the other 

comments we have addressed in this 

section) to be outside the scope of our 

proposal and to be no bar to today’s 

approval action. 

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 USC 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 

USC 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 

USC 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 USC 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, 


wreier-aviles on DSK5TPTVN1PROD with 
70706 Federal Register / Vol. 77, No. 228 / Tuesday, November 27, 2012 / Rules and Regulations 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur dioxides, 

Visibility, Regional haze, Best available 

control technology. 

Dated: November 15, 2012. 

Ron Curry, 

Regional Administrator, Region 6. 

40 CFR part 52 is amended to read 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 GG—New Mexico 

■ 2. Section 52.1620 is amended: 

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

table entitled ‘‘EPA Approved New 

Mexico Regulations’’ by revising the 

entries for Part 60, Part 61, Part 73, and 

Part 80, and adding new entries in 

sequential order for ‘‘Part 65’’ and ‘‘Part 

81’’, and 

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

table entitled ‘‘EPA Approved 

Nonregulatory Provisions and QuasiRegulatory Measures in The New 

Mexico SIP’’ by adding to the end of the 

table a new entry for ‘‘Regional Haze SIP 

under 40 CFR 51.309’’. 

The additions and revisions read as 

follows: 

§ 52.1620 Identification of plan. 

* * * * * 

(c) * * * 

State citation Title/Subject 

State approval/effective date 

EPA Approval date Comments 

New Mexico Administrative Code (NMAC) Title 20—Environment Protection Chapter 2—Air Quality 

* * * * * * * 

Part 60 ................................................................. Open Burning ......................... 12/31/2003 11/27/2012 [Insert FR page 

number where document 

begins].

Part 61 ................................................................. Smoke and Visible Emissions 11/30/1995 9/26/1997, 62 FR 50514 ........

Part 65 ................................................................. Smoke Management .............. 12/31/2003 11/27/2012 [Insert FR page 

number where document 

begins].

* * * * * * * 

Part 73 ................................................................. Notice of Intent and Emissions Inventory Requirements.7/6/2011 11/27/2012 [Insert FR page 

number where document 

begins].

* * * * * * * 

Part 80 ................................................................. Stack Heights ......................... 11/30/1995 9/26/1997, 62 FR 50514 ........

Part 81 ................................................................. Western Backstop Sulfur Dioxide Trading Program.7/6/2011 11/27/2012 [Insert 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 

*******

Regional Haze SIP under 40 CFR 51.309 .......... Statewide (except Bernalillo 

County).

6/24/2011 11/27/2012 [Insert FR page 

number where document 

begins].

Nitrogen oxides Best 

Available 

Retrofit 

Technology 

determination for San 

Juan Generating Station not included in 

approval 

action. 


wreier-aviles on DSK5TPTVN1PROD with 
Federal Register / Vol. 77, No. 228 / Tuesday, November 27, 2012 / Rules and Regulations 70707 

1 ‘‘2011 Ozone SIP Revision’’ here should have 

been ‘‘2011 Progress Report.’’ CARB included Table 

B–1 in Appendix B in the 2011 Ozone SIP Revision 

for informational purposes only but intended that 

the commitments to propose defined measures as 

given on Table B–1 of Appendix B of the 2011 

Progress Report be included in the South Coast 8- 

hour Ozone SIP. See Appendix A–3 of the 2011 

Ozone SIP Revisions. 

[FR Doc. 2012–28591 Filed 11–26–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2011–0589 and EPA–R09– 

OAR–2011–0622; FRL–9753–3] 

Approval of Air Quality Implementation 

Plans; California; San Joaquin Valley 

and South Coast; Attainment Plan for 

the 1997 8-hour Ozone Standards; 

Technical Amendments 

AGENCY: U.S. Environmental Protection 

Agency (EPA). 

ACTION: Final rule; technical 

amendments. 

SUMMARY: EPA is making technical 

amendments to the Code of Federal 

Regulations (CFR) to reflect the 

Agency’s March 1, 2012 final approvals 

of the California State Implementation 

Plans for attainment of the 1997 8-hour 

ozone National Ambient Air Quality 

Standards in the San Joaquin Valley and 

the South Coast Air Basin. These 

technical amendments correct the CFR 

to properly codify the California Air 

Resources Board’s commitments to 

propose certain defined measures. 

DATES: This technical amendment is 

effective on November 27, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Frances Wicher, Air Planning Office 

(AIR–2), U.S. Environmental Protection 

Agency, Region 9, (415) 972–3957, 

wicher.frances@epa.gov. 

SUPPLEMENTARY INFORMATION: 

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

and ‘‘our’’ refer to EPA. 

On March 1, 2012, EPA fully 

approved the California State 

Implementation Plans (SIPs) for 

attainment of the 1997 8-hour ozone 

National Ambient Air Quality Standards 

(NAAQS) in the San Joaquin Valley and 

South Coast (Los Angeles) Air Basin and 

included provisions of these SIPs in the 

Code of Federal Regulations (CFR) at 40 

CFR 52.220(c). See 77 FR 12652 (March 

1, 2012) and 77 FR 12674 (March 1, 

2012). As submitted, these SIPs include 

commitments by the California Air 

Resources Board (CARB) to propose 

certain defined measures. These 

commitments were included in the 

Progress Report on Implementation of 

PM2.5 State Implementation Plans (SIP) 

for the South Coast and San Joaquin 

Valley Air Basins and Proposed SIP 

Revisions (‘‘2011 Progress Report’’), 

adopted by CARB on April 28, 2011 and 

submitted on May 18, 2011 and the 8- 

Hour Ozone State Implementation Plan 

Revisions and Technical Revisions to 

the PM2.5 State Implementation Plan 

Transportation Conformity Budgets for 

the South Coast and San Joaquin Valley 

Air Basins (‘‘2011 Ozone SIP 

Revisions’’), adopted by CARB on July 

21, 2011 and submitted on July 29, 

2011. 

In the preamble to our final action 

approving the San Joaquin Valley’s 8- 

Hour Ozone SIP, we stated that we are 

approving ‘‘CARB’s commitments to 

propose certain defined measures, as 

listed in Table B–1 on page 1 of 

Appendix B of the 2011 Progress Report 

and in Appendix A–3 of the 2011 Ozone 

SIP Revisions.’’ See 77 FR 12652 at 

12670. We proposed the same at 76 FR 

557846, 57867 (September 16, 2011). 

EPA did not, however, accurately codify 

this approval in the final regulatory text. 

We are issuing this technical 

amendment to 40 CFR 52.220 to correct 

this oversight. This technical 

amendment makes no changes to the 

substance of our March 1, 2012 approval 

of the SJV 8-Hour Ozone SIP. 

In the preamble to our final action 

approving the South Coast 8-Hour 

Ozone SIP, we stated that we are 

approving ‘‘CARB’s commitments to 

propose certain defined measures, as 

listed in Appendix B, Table B–1 of the 

2011 Ozone SIP Revision.’’ 1 See 77 FR 

12674, 12693. We proposed this action 

at 76 FR 57872 at 57895 (September 16, 

2011). EPA did not, however, accurately 

codify this approval in the final 

regulatory text. We are issuing this 

technical amendment to 40 CFR 52.220 

to correct this oversight. This technical 

amendment makes no changes to the 

substance of our March 1, 2012 approval 

of the South Coast 8-Hour Ozone SIP. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen Dioxide, Ozone, Volatile 

organic compounds. 

Dated: November 9, 2012 . 

Jared Blumenfeld, 

Regional Administrator, Region IX. 

For the reasons discussed in the 

preamble, EPA amends 40 CFR part 52 

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 F—California 

■ 2. Section 52.220 is amended by: 

■ a. Adding and reserving paragraph 

(c)(396)(ii)(A)(2)(ii); and 

■ b. Adding paragraphs 

(c)(396)(ii)(A)(2)(iii) and 

(c)(401)(ii)(A)(2)(ii). 

The added text reads as follows. 

§ 52.220 Identification of plan. 

* * * * * 

(c) * * * 

(396) * * * 

(ii) * * * 

(A) * * * 

(2) * * * 

(ii) [Reserved] 

(iii) Commitments to propose 

measures as provided in Appendix B, 

Table B–1 of the Progress Report on the 

Implementation of PM2.5 State 

Implementation Plans (SIP) for the 

South Coast and San Joaquin Valley Air 

Basins and Proposed SIP Revisions 

(Release Date: March 29, 2011), adopted 

April 28, 2011, as amended by 

Appendix A, p. A–7 of the 8-Hour 

Ozone State Implementation Plan 

Revisions and Technical Revisions to 

the PM2.5 State Implementation Plan 

Transportation Conformity Budgets for 

the South Coast and San Joaquin Valley 

Air Basins (Release Date: June 20, 2011), 

adopted July 21, 2011. 

* * * * * 

(401) * * * 

(ii) * * * 

(A) * * * 

(2) * * * 

(ii) Commitment to propose measures 

as provided in Appendix B Table B–1 of 

the Progress Report on the 

Implementation of PM2.5 State 

Implementation Plans (SIP) for the 

South Coast and San Joaquin Valley Air 

Basins and Proposed SIP Revisions 

(Release Date: March 29, 2011), adopted 

April 28, 2011. 

* * * * * 

[FR Doc. 2012–28598 Filed 11–26–12; 8:45 am] 

BILLING CODE 6560–50–P 


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