Federal Register / Vol. 77, No. 128 / Tuesday, July 3, 2012 / Rules and Regulations 39425 

1 It is recognized that at the Breton National 

Wilderness Area (Breton or Breton NWA), some 

acres have at times been submerged. However, as 

a Class I area, Congress has declared as a national 

goal ‘‘the prevention of any future, and the 

remedying, of any existing, impairment of 

visibility’’ at the Breton NWA. 42 U.S.C. 7491. 

Breton was designated by Congress as a national 

wilderness area on June 3, 1975, under the 

Wilderness Act. Public Law 93–632 1(f); see also 16 

U.S.C. 1132. In the August 7, 1977, Clean Air Act 

Amendment, national wilderness areas that 

exceeded 5,000 acres in size and were in existence 

at that time (August 7, 1977), were designated as 

mandatory Class I areas that may not be 

redesignated. 42 U.S.C. 7472(a). In accordance with 

section 169A of the CAA, the EPA, in consultation 

with the Department of Interior, promulgated a list 

of 156 areas where visibility is identified as an 

important value. See, 44 FR 69122, November 30, 

1979. As required, the EPA lists Breton as a 

mandatory Class I federal area at 40 CFR 81.412. 

2For additional details on the EPA’s analysis and 

findings, the reader is referred to the proposal 

published in the February 28, 2012 Federal Register 

(77 FR 11839), and a more detailed discussion as 

contained in the Technical Support Document 

which is available on line at http:// 

www.regulations.gov, Docket number EPA–R06– 

OAR–2008–0510. 

petty officer who has been designated 

by the Captain of the Port Buffalo to act 

on his behalf. 

(4) Vessel operators desiring to enter 

or operate within the safety zone shall 

contact the Captain of the Port Buffalo 

or his on-scene representative to obtain 

permission to do so. The Captain of the 

Port Buffalo or his on-scene 

representative may be contacted via 

VHF Channel 16. Vessel operators given 

permission to enter or operate in the 

safety zone must comply with all 

directions given to them by the Captain 

of the Port Buffalo, or his on-scene 

representative. 

Dated: June 15, 2012. 

S.M. Wischmann, 

Captain, U.S. Coast Guard, Captain of the 

Port Buffalo. 

[FR Doc. 2012–16243 Filed 7–2–12; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2008–0510; FRL–9692–3] 

Approval and Promulgation of 

Implementation Plans; Louisiana; 

Regional Haze State Implementation 

Plan 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The EPA is finalizing a partial 

limited approval and a partial 

disapproval of a revision to the 

Louisiana State Implementation Plan 

(SIP) submitted by the State of 

Louisiana through the Louisiana 

Department of Environmental Quality 

(LDEQ), on June 13, 2008, that addresses 

regional haze (RH) for the first 

implementation period. This revision 

was submitted to address the 

requirements of the Clean Air Act (CAA) 

and the EPA’s rules that require states 

to prevent any future and remedy any 

existing anthropogenic impairment of 

visibility in mandatory Class I areas 

(national parks and wilderness areas) 

caused by emissions of air pollutants 

from numerous sources located over a 

wide geographic area (also referred to as 

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

required to assure reasonable progress 

toward the national goal of achieving 

natural visibility conditions in Class I 

areas. In a separate action, the EPA has 

finalized a limited disapproval of the 

Louisiana RH SIP, along with several 

other states’ regional haze plans, 

because of deficiencies in the state’s 

regional haze SIP submittal arising from 

the remand by the U.S. Court of Appeals 

for the District of Columbia (D.C. 

Circuit) to the EPA of the Clean Air 

Interstate Rule (CAIR). In this action, the 

EPA is finalizing a partial disapproval 

because of deficiencies in Louisiana’s 

RH SIP submittal that go beyond the 

issues addressed in the EPA’s limited 

disapproval in that separate action. The 

EPA is also finalizing a partial limited 

approval of those elements of this SIP 

revision not addressed by our partial 

disapproval. The partial limited 

approval of the RH requirements for 

Louisiana is based on the conclusion 

that the revisions, as a whole, 

strengthen the Louisiana SIP. This 

action is being taken under section 110 

and part C of the CAA. 

DATES: This rule is effective August 6, 

2012. 

ADDRESSES: The EPA has established a 

docket for this action under Docket 

Identification No. EPA–R06–OAR– 

2008–0510. All documents in the docket 

are listed on the www.regulations.gov 

Web site. Although listed in the index, 

some information is not publicly 

available, i.e., Confidential Business 

Information or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

www.regulations.gov or in hard copy at 

the Air Planning Section (6PD–L), 

Environmental Protection Agency, 

Region 6, 1445 Ross Avenue, Suite 700, 

Dallas, Texas 75202–2733. The EPA 

requests that if at all possible, you 

contact the person listed in the FOR

FURTHER INFORMATION CONTACT section 

for further information. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 to 4:30, 

excluding federal holidays. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Ellen Belk, Air Planning Section (6PD– 

L), Environmental Protection Agency, 

Region 6, 1445 Ross Avenue, Suite 700, 

Dallas, Texas 75202–2733, telephone 

214–665–2164; fax number 214–665– 

6762; email address belk.ellen@epa.gov. 

SUPPLEMENTARY INFORMATION: 

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

and ‘‘our’’ means the EPA. 

Table of Contents 

I. Background 

II. Final Action 

III. Comments Received and Our Responses 

IV. Statutory and Executive Order Reviews 

I. Background 

The EPA is taking action on a revision 

to Louisiana’s SIP submitted on June 13, 

2008, that addressed progress toward 

reducing regional haze for the first 

implementation period ending in 2018. 

This revision was submitted to address 

the requirements of the CAA and the 

EPA’s rules to assure reasonable 

progress toward the national goal of 

achieving natural visibility conditions 

in mandatory Class I areas. As identified 

by Congress, there is one mandatory 

Class I area within the State of 

Louisiana, Breton National Wilderness 

Area.1 The initial submittal from 

Louisiana was supplemented by a May 

30, 2012, letter communicating that the 

State finalized its Smoke Management 

Plan (SMP). On February 28, 2012, the 

EPA published a proposed partial 

limited approval and partial disapproval 

of Louisiana’s SIP revision to address 

RH. See 77 FR 11839.2

In that action, the EPA proposed a 

partial limited approval of Louisiana’s 

June 13, 2008, SIP revision addressing 

RH under CAA sections 301(a) and 

110(k)(3) because certain provisions of 

the revision strengthen the Louisiana 

(LA) SIP. The EPA also proposed a 

partial disapproval of the LA RH SIP 

submittal because the submittal 

includes several deficient provisions. 

The deficiencies identified in the 

proposal go beyond those identified in 

the limited disapproval proposed on 

December 30, 2011 (76 FR 82219) which 

addressed deficiencies in several states’ 

regional haze plans caused by the 

remand of the CAIR. The EPA proposed 

that certain elements of the State’s Best 

Available Retrofit Technology (BART) 


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39426 Federal Register / Vol. 77, No. 128 / Tuesday, July 3, 2012 / Rules and Regulations 

3Processing of State Implementation Plan (SIP) 

Revisions, EPA Memorandum from John Calcagni, 

Director, Air Quality Management Division, 

OAQPS, to Air Division Directors, EPA Regional 

Offices I–X (1992 Calcagni Memorandum) located at 

http://www.epa.gov/ttn/caaa/t1/memoranda/ 

siproc.pdf. 

4As explained in the 1992 Calcagni 

Memorandum, ‘‘[t]hrough a limited approval, the 

EPA [will] concurrently, or within a reasonable 

period of time thereafter, disapprove the rule * * * 

for not meeting all of the applicable requirements 

of the Act. * * * [T]he limited disapproval is a 

rulemaking action, and it is subject to notice and 

comment.’’ Final limited disapproval of a SIP 

submittal does not affect the federal enforceability 

of the measures in the subject SIP revision nor 

prevent state implementation of these measures. 

evaluations and determinations are not 

fully adequate to meet the federal 

requirements. Additionally, as a result 

of the deficiencies related to BART, the 

EPA proposed that the Long-Term 

Strategy (LTS) is not fully adequate to 

meet federal requirements. Finally, 

because visibility impacts from smoke 

are significant in Louisiana, we 

proposed that Louisiana should finalize 

its SMP. The EPA proposed a limited 

approval for portions of the revision 

because those portions represent an 

improvement over the current SIP, and 

make considerable progress in fulfilling 

the applicable CAA RH program 

requirements. 

The EPA received comments on the 

Agency’s February 28, 2012 proposed 

action. See section III of this rulemaking 

for a summary of comments received 

and the EPA’s responses to these 

comments. Also, the EPA received a 

final SMP from Louisiana on May 30, 

2012. 

Following the remand of CAIR, the 

EPA issued a new rule in 2011 to 

address the interstate transport of 

nitrogen oxides (NOX) and sulfur 

dioxide (SO2) in the eastern United 

States. See 76 FR 48208, August 8, 2011 

(‘‘the Transport Rule,’’ also known as 

the Cross-State Air Pollution Rule 

(CSAPR)). On December 30, 2011, the 

EPA proposed to find that the trading 

programs in the Transport Rule would 

achieve greater reasonable progress 

towards the national visibility goal than 

would source-specific BART in the 

states in which the Transport Rule 

applies. See 76 FR 82219. The EPA 

finalized that rule on May 30, 2012 (77 

FR 33642). Based on this finding, the 

EPA also revised the RH Rule (RHR) to 

allow states to substitute participation 

in the trading programs under the 

Transport Rule for source-specific 

BART. 

Also on December 30, 2011, the U.S. 

Court of Appeals for the DC Circuit 

stayed the Transport Rule (including the 

provisions that would have sunset CAIR 

and the CAIR Federal Implementation 

Plans (FIPs)) and instructed the EPA to 

continue to administer CAIR pending 

the outcome of the court’s decision on 

the petitions for review challenging the 

Transport Rule. EME Homer City v. 

EPA, No. 11–1302 (Order). 

II. Final Action 

In this action, the EPA is finalizing a 

partial limited approval and a partial 

disapproval of Louisiana’s June 13, 2008 

RH SIP revision. With one difference, 

we are finalizing our action as proposed. 

As discussed below, we are slightly 

adjusting our action on the LA RH SIP 

with respect to the LDEQ’s BART 

determination for the Rhodia Sulfuric 

Acid Plant (Rhodia). We proposed to 

find the BART evaluation for Rhodia is 

deficient because the LDEQ’s RH 

submittal does not analyze controls for 

the subject-to-BART unit using the 

factors required by 40 CFR 51.308(e). 

Having considered the public 

comments, we find that Rhodia’s 

subject-to-BART unit meets the RH 

requirements specified in 40 CFR 

51.308(e)(1)(ii)(A) for an adequate BART 

evaluation; however the Rhodia BART 

determination still fails to meet the 

requirement in 40 CFR 51.308(e) to 

include the emissions limits in the SIP. 

See our response to comment 6 in 

section III for further discussion of our 

findings for Rhodia. Also, this action 

acknowledges that Louisiana has 

satisfied the requirement to consider 

smoke management techniques, 

including plans, because Louisiana has 

finalized its SMP (see the docket for this 

action, Docket No. EPA–R06–OAR– 

2008–0510, for Louisiana’s SMP). 

The EPA is finalizing a partial limited 

approval of Louisiana’s RH SIP revision. 

This partial limited approval results in 

approval of all of the remaining 

elements of Louisiana’s RH SIP.3 The 

EPA is taking this approach because 

Louisiana’s SIP will be stronger and 

more protective of the environment with 

the implementation of those measures 

by the state and having federal approval 

and enforceability than it would 

without those measures being included 

in Louisiana’s SIP. 

The EPA is also finalizing a partial 

disapproval of Louisiana’s RH SIP 

revision insofar as this SIP revision 

relies on deficient BART evaluations for 

four non-electric generating unit (nonEGU) subject-to-BART sources. The 

legal effect of the final partial 

disapproval for Louisiana’s June 13, 

2008, SIP revision is to provide the EPA 

authority to issue a FIP at any time, and 

to obligate the Agency to take such 

action no more than two years after the 

effective date of the EPA’s final action. 

42 USC 7410(c)(1); CAA 110(c)(1). 

Note that in another action, signed 

May 30, 2012, the EPA finalized its 

finding that the trading programs in the 

Transport Rule would achieve greater 

reasonable progress towards the 

national goal than would BART in the 

states in which the Transport Rule 

applies. See 77 FR 33642. In that action, 

the EPA finalized a limited 

disapproval 4 of Louisiana’s June 13, 

2008, RH SIP revision insofar as those 

revisions rely on the CAIR to address 

the impact of emissions from the State’s 

electric generating units (EGUs). 

However, that action did not finalize a 

FIP for Louisiana. The legal effect of that 

final limited disapproval for Louisiana’s 

June 13, 2008, SIP revision is to provide 

the EPA authority to issue a FIP at any 

time, and to obligate the Agency to take 

such action no more than two years after 

the effective date of the EPA’s final 

action. 

Specifically, the EPA is finalizing a 

partial limited approval and a partial 

disapproval of a revision to the 

Louisiana SIP submitted by the State of 

Louisiana on June 13, 2008, as meeting 

some of the applicable regional haze 

requirements as set forth in sections 

169A and 169B of the CAA and in 40 

CFR 51.300–308. In this action, the EPA 

grants a partial limited approval of the 

LA RH SIP submittal for meeting the 

requirements of: 51.308(d), for the core 

requirements for regional haze SIPs, 

except for the requirements of 

51.308(d)(3); 51.308(f), for the 

commitment to submit comprehensive 

periodic revisions of regional haze SIPs; 

51.308(g), for the commitment to submit 

periodic reports describing progress 

towards the reasonable progress goals 

(RPGs); 51.308(h), for the commitment 

to conduct periodic determinations of 

the adequacy of the existing regional 

haze SIP; and 51.308(i), for coordination 

with state and Federal Land Managers. 

However, in this action the EPA is also 

partially disapproving the LA RH SIP 

submittal because it does not include 

fully approvable measures for meeting 

the requirements of 40 CFR 51.308(d)(3), 

long-term strategy for regional haze as it 

relies on deficient non-EGU BART 

analyses; and 51.308(e), BART 

requirements for regional haze visibility 

impairment with respect to emissions of 

visibility impairing pollutants from four 

non-EGUs. 

III. Comments Received and Our 

Responses 

The EPA received four sets of 

comments on the February 28, 2012, 

rulemaking proposing a partial limited 

approval and a partial disapproval of 

Louisiana’s June 13, 2008 SIP revision. 


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Federal Register / Vol. 77, No. 128 / Tuesday, July 3, 2012 / Rules and Regulations 39427 

5The EPA’s 1992 Calcagni Memorandum. 

6The national proposal proposed a NOX BART 

EGU FIP for Louisiana, but as the State did not 

receive a finding of failure to timely submit a SIP 

and requested the allowable time to revise and 

resubmit a SIP, the final action did not include such 

a FIP. 

Specifically, the comments were 

received from the National Parks 

Service; the LDEQ; Exxon Mobil 

Corporation; and Tulane Environmental 

Law Clinic, on behalf of the Gulf 

Restoration Network. Full sets of the 

comments provided by all of the 

aforementioned entities (hereinafter 

referred to as ‘‘the Commenter’’) are 

provided in the docket for today’s final 

action. The docket for this action is 

available at www.regulations.gov under 

Docket Identification No. EPA–R06– 

OAR–2008–0510. A summary of the 

comments and the EPA’s responses are 

provided below. 

Comment 1: The EPA does not have 

the authority under the CAA to issue a 

limited approval of Louisiana’s RH SIP. 

The CAA provides that the EPA can 

approve a SIP submittal in whole or can 

approve part of a submittal and 

disapprove the other parts. CAA section 

110(k)(3). But the CAA says nothing 

about allowing the EPA to grant a 

‘‘limited approval.’’ 

Response 1: The EPA disagrees with 

the comment that the EPA lacks the 

authority to give limited approval of 

Louisiana’s RH SIP. As discussed in the 

September 7, 1992, EPA memorandum 

cited in the proposed rulemaking,5

although section 110(k) of the CAA may 

not expressly provide authority for 

limited approvals, the plain language of 

section 301(a) does provide ‘‘gapfilling’’ authority authorizing the 

Agency to ‘‘prescribe such regulations 

as are necessary to carry out’’ the EPA’s 

CAA functions. The EPA may rely on 

section 301(a) in conjunction with the 

Agency’s SIP approval authority in 

section 110(k)(3) to issue limited 

approvals where it has determined that 

a submittal strengthens a given state SIP 

and that the provisions meeting the 

applicable requirements of the CAA are 

not separable from the provisions that 

do not meet the CAA’s requirements. 

The EPA has adopted the limited 

approval approach numerous times in 

SIP actions across the nation over the 

last twenty years. Limited approval is 

appropriate for part of the SIP submittal 

here because the EPA has determined 

that a portion of Louisiana’s SIP 

revisions addressing regional haze, as a 

whole, strengthen the State’s SIP and 

because the provisions in the SIP 

revisions that relate to BART for EGUs 

are not separable. Further, this limited 

approval complements the national 

‘‘Better-than-BART’’ action, which 

proposed a limited disapproval for the 

LA RH SIP due to its reliance on the 

remanded CAIR for BART for EGUs. 

Adopting the Commenter’s position 

would ignore CAA section 301 and 

violate the ‘‘‘fundamental canon of 

statutory construction that the words of 

a statute must be read in their context 

and with a view to their place in the 

overall statutory scheme’. * * * A court 

must therefore interpret the statute ‘as a 

symmetrical and coherent regulatory 

scheme,’ * * * and ‘fit, if possible, all 

parts into an harmonious whole.’’’ FDA 

v. Brown & Williamson Tobacco Corp., 

529 U.S. 120, 133 (2000) (quoting Davis 

v. Michigan Dept. of Treasury, 489 U.S. 

803, 809 (1989), Gustafson v. Alloyd 

Co., 513 U.S. 561, 569 (1995), and FTC 

v. Mandel Brothers, Inc., 359 U.S. 385, 

389 (1959)). 

Comment 2: The EPA cannot partially 

approve or partially disapprove a RH 

SIP without evaluating Louisiana’s 

proposed SIP as a whole. The EPA has 

proposed to issue a FIP to address the 

deficiencies in Louisiana’s SIP 

associated with the BART requirements 

for NOX for EGUs, but did not propose 

a FIP for the EGU BART requirements 

for SO2. Accordingly, Louisiana and the 

EPA must issue BART determinations 

for SO2 at each source subject to BART, 

including those EGUs subject to the 

Transport Rule. Because of this 

bifurcated treatment, the proposed 

partial SIP violates the CAA and RHR 

because the EPA failed to evaluate, let 

alone determine, whether exempting 

Louisiana EGUs from BART complies 

with the CAA’s reasonable progress 

mandate. To meet the 2064 goal, a 

regional haze plan must include two 

components: BART limits and a longterm strategy to achieve reasonable 

progress toward that goal. Because 

BART is a critical component to 

achieving reasonable progress, neither 

the states nor the EPA can exempt 

sources from the RHR’s BART 

requirements without any consideration 

of how doing so will affect the 

overarching reasonable progress 

mandate. All required components of a 

RH SIP or FIP affect each other, are part 

of a ‘‘single administrative action,’’ and 

must be evaluated together to determine 

compliance with the CAA and RHR. The 

EPA has failed to account for how, in 

the absence of relied upon SO2

reductions anticipated under CAIR, it 

will maintain its uniform rate of 

progress. The EPA’s failure to consider 

together the proposed alternative BART 

program, BART for SO2, the LTS and 

RPGs in Louisiana’s SIP violates the 

CAA and RHR and is arbitrary and 

capricious. 

Response 2: We have evaluated the 

LA RH SIP submittal as a whole and at 

this time we are taking final action on 

all elements of the LA RH SIP submittal 

that were not addressed in the national 

Better-than-BART rule. Louisiana must 

consider whether EGUs previously 

covered by the CAIR, whether subject to 

BART or not, should be controlled to 

ensure reasonable progress to meet the 

State’s long-term strategies. However, 

insofar as Louisiana’s LTS and RPGs are 

affected by the remand of CAIR, those 

issues are addressed in the national 

Better-than-BART rulemaking and are 

outside the scope of this action on the 

remainder of the LA RH SIP. Also, the 

CAA expressly provides authority to the 

EPA to partially approve and partially 

disapprove a SIP revision. 42 U.S.C. 

7410(k)(3). The EPA has adopted the 

partial approval approach numerous 

times in SIP actions across the nation 

over the last twenty years. Partial 

approval and partial disapproval is 

appropriate here because the EPA has 

determined that a portion of Louisiana’s 

RH SIP meets regional haze 

requirements and a portion of it does 

not. Additionally, the EPA has 

discretion to issue an immediate FIP for 

all or part of the deficiencies in the LA 

RH SIP; however, the EPA is not under 

an obligation to promulgate a FIP for 

any part of the LA RH SIP at this time 

because the FIP clock has not begun yet. 

See Section II of this action for 

additional information about the FIP. 

While the EPA proposed a FIP for 

Louisiana for NOX BART for EGUs, the 

final national Better-than-BART rule 

does not include a FIP for NOX BART 

for EGUs.6 Without a FIP, the Louisiana 

RH SIP contains a gap for NOX BART for 

EGUs. Additionally, because no FIP was 

promulgated for SO2 in Louisiana, the 

Louisiana RH SIP contains a gap for SO2

BART for EGUs. Therefore, Louisiana 

must submit and the EPA must approve 

a revised SIP submittal to address both 

NOX and SO2 BART for EGUs to cure 

the deficiencies in the SIP resulting 

from the remand of CAIR. Louisiana 

may elect to rely on the Transport Rule 

for NOX BART for EGUs in that 

submittal. However, because Louisiana 

is not covered under the Transport Rule 

for SO2, the State must submit sourcespecific SO2 BART evaluations for the 

subject-to-BART EGUs in Louisiana. As 

discussed further in our responses to 

several comments below, Louisiana 

must also submit revisions sufficient to 

cure the deficiencies in the non-EGU 

BART determinations. 

Comment 3: The EPA should not 

finalize a limited disapproval of the LTS 

in the LA RH SIP based on the 


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39428 Federal Register / Vol. 77, No. 128 / Tuesday, July 3, 2012 / Rules and Regulations 

7 42 U.S.C. 7410(c)(1); CAA 110(c)(1). 

8See 42 U.S.C. 7509. 

Transport Rule. The Transport Rule is 

currently in litigation and has been 

stayed by the Court. The EPA cannot 

legally base a SIP action on a regulation 

that is not effective and that may be 

vacated and remanded. Limited 

disapproval of the LA RH SIP submittal 

will trigger the ‘‘two year sanction 

clock’’ imposed by the CAA. The State 

will be required to submit a SIP 

revision, with the EPA review and 

approval within two years of the denial 

when the ‘‘applicable standard’’ is still 

unknown at this time. Instead, the CAIR 

is currently effective and will continue 

to be implemented by the EPA, the 

States, and the regulated community 

indefinitely. Once the question of 

regional transport of particulate matter 

(PM) and PM precursors is resolved and 

a regulation replaces CAIR, the State 

will submit a SIP revision to implement 

BART for EGUs in accordance with 

provisions of the new program. 

However, until this question is resolved, 

Louisiana and its regulated entities are 

obligated to comply with the effective 

regulation and so is the EPA. The State 

and its regulated entities are entitled to 

rely upon the effective regulation as the 

basis for the EPA action concerning the 

Louisiana SIP. The EPA is compelled to 

approve the current LA RH SIP 

submittal that relies on CAIR and the 

EPA’s prior determination that CAIR is 

equivalent to BART. 

Response 3: In a separate action that 

revises the RHR and finds that the 

Transport Rule is better than BART we 

finalized a limited disapproval of 

Louisiana’s long-term strategy. See 77 

FR 33642. The docket for that 

rulemaking (Docket ID No. EPA–HQ– 

OAR–2011–0729) is available at 

www.regulations.gov. For that reason, 

we are not taking action on the longterm strategy in this action insofar as the 

LA RH SIP relied on the CAIR. 

Therefore, the comment that the EPA 

should not disapprove the LA RH LTS 

based on the State’s reliance on the 

CAIR is outside the scope of this action. 

Additionally, we clarify that today’s 

final action on the remainder of LA’s RH 

SIP triggers a two-year FIP clock,7 but 

does not start a sanctions clock for 

Louisiana.8 See Section II of this action 

for additional information about the FIP. 

While the comment is outside the 

scope of this action, we note that CAIR 

has been remanded and only remains in 

place temporarily; therefore, the EPA 

cannot fully approve the regional haze 

SIP revisions that have relied on the 

now-temporary reductions from CAIR. 

Although CAIR is currently in effect as 

a result of the December 30, 2011 Order 

by the U.S. Court of Appeals for the D.C. 

Circuit staying the Transport Rule, this 

does not affect the substance of the D.C. 

Circuit’s ruling in 2008 remanding CAIR 

to the EPA. Additionally, in the 

Transport Rule, the EPA determined 

that Louisiana need not be covered for 

SO2 controls to prevent impacts on PM 

nonattainment or maintenance in other 

states. As a result of the CAIR remand 

and the SO2 finding for Louisiana in the 

Transport Rule, no national rule 

addresses SO2 reductions in Louisiana. 

We recognize that the final outcome of 

the PM transport requirements that 

CAIR and the Transport Rule are 

designed to address is uncertain at this 

time. However, the applicable standard 

for BART is certain under the RHR. 

Thus, notwithstanding the uncertain 

status of the Transport Rule and the 

continued implementation of CAIR, 

Louisiana must address SO2 BART in 

order to comply with the RHR. We 

believe that Louisiana should be 

working to address SO2 BART on a 

source by source basis. 

Comment 4: The Commenter opposes 

the EPA’s December 30, 2011, proposed 

rulemaking to find that the Transport 

Rule is better than BART and to use the 

Transport Rule as an alternative to 

BART for Louisiana and other states 

subject to the Transport Rule. The 

Commenter incorporates its comments 

on that December 30, 2011, rulemaking 

by reference and outlines several of 

those comments, including its 

arguments that the Transport Rule is not 

better than BART, and that the EPA 

cannot rely on the Transport Rule as an 

alternative program or measure to 

displace BART requirements for those 

BART-eligible sources in Transport Rule 

states. 

Response 4: These comments are 

beyond the scope of this rulemaking. In 

today’s rule, the EPA is taking final 

action on the proposed partial limited 

approval and partial disapproval of 

Louisiana’s RH SIP. The EPA did not 

propose to find that participation in the 

Transport Rule is an alternative to 

BART in this action. As noted above, 

EPA made that proposed finding in a 

separate action on December 30, 2011, 

and the Commenter is merely reiterating 

and incorporating its comments on that 

separate action. EPA addressed these 

comments concerning the Transport 

Rule as a BART alternative in a final 

action that was signed on May 30, 2012. 

See 77 FR 33642. The EPA’s response to 

these comments can be found in Docket 

ID No. EPA–HQ–OAR–2011–0729 at 

www.regulations.gov. 

Comment 5: The commenter objects to 

the EPA’s limited approval of portions 

of LA’s RH SIP because it replaces 

reliance on CAIR with reliance on the 

Transport Rule for NOX emissions from 

EGUs. 77 FR 11839, 11840–41. The 

effect of this proposed rule is to exempt 

Louisiana EGUs from the RHR’s 

requirements for case-by-case, sourcespecific analyses and installation and 

operation of BART to reduce NOX and 

achieve the RHR’s visibility mandates. 

This exemption is based on the EPA’s 

proposed finding that the Transport 

Rule would be better than BART at 

making reasonable progress with regard 

to NOX emissions toward achieving the 

RHR’s goal of eliminating human caused 

visibility impairment at Class I areas by 

2064. Id. at 11846; see also 40 CFR 

51.308(e)(3) (criteria for determining if 

an alternative measure is better than 

BART). But the EPA’s proposed Betterthan-BART rule as applied to all 28 

states covered under the Transport Rule, 

including Louisiana, is inconsistent 

with the CAA. The EPA has not 

complied with the CAA’s statutory 

requirements for a BART exemption, 

has failed to make a state-by-state 

demonstration that the Transport Rule is 

better than BART, and has included 

fatal methodological flaws in its 

proposed determination. Additionally, 

the EPA’s determination fails to account 

for the geographic and temporal 

uncertainties in emissions reductions 

under the Transport Rule—uncertainties 

inherent in a cap-and-trade program. 

Moreover, Louisiana cannot rely on the 

Transport Rule to exempt Louisiana’s 

EGUs from the RHR’s BART 

requirements because the D.C. Circuit 

has indefinitely stayed the rule. The 

Transport Rule’s uncertainties and lack 

of year round emission reduction 

requirements make it unsuitable as a 

BART alternative in Louisiana. 

Moreover, the application of the 

Transport Rule as a substitute for source 

specific BART is uniquely and 

particularly problematic in Louisiana, 

and four other states (Florida, 

Oklahoma, Mississippi, and Arkansas) 

for which the EPA exempts sources 

from BART NOX requirements, because 

NOX emissions are only covered by the 

Transport Rule during the ozone 

season—less than half the year. Finally, 

the national rule expressly states that 

the EPA is taking no action on the RPGs, 

effectively making it impossible to 

determine whether the Transport Rule 

for an ozone season only state could 

achieve greater reasonable progress than 

an absent or unconfirmed goal. See 76 

FR 82219, at 82221. Absent a uniform 

rate of progress calculation, LTS, or 

RPGs, the EPA has no rational basis to 

determine that the Transport Rule 


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Federal Register / Vol. 77, No. 128 / Tuesday, July 3, 2012 / Rules and Regulations 39429 

9LDEQ Comment Letter, received March 29, 

2012. 

10We acknowledge that compliance with the 

BART Guidelines in 40 CFR 51 Appendix Y is not 

mandatory for Rhodia because Rhodia is a non-EGU 

source. However, following these Guidelines is one 

option for subject-to-BART non-EGUs to ensure 

BART determinations are adequate. 

11The EPA’s finding is a logical outgrowth of the 

proposed rule. ‘‘[A] final rule will be deemed to be 

the logical outgrowth of a proposed rule if a new 

round of notice and comment would not provide 

commentators with their first occasion to offer new 

and different criticisms which the agency might 

find convincing.’’ Fertilizer Inst. v. EPA, 935 F.2d 

1303, 1311 (D.C. Cir. 1991) (citation and internal 

quotation marks omitted). In our proposal, we note 

that ‘‘[t]he LDEQ may be able to find that the 

controls required under the CD are among the most 

stringent, and therefore, no additional controls 

would be required for these units to meet BART.’’ 

As LDEQ has now provided this determination and 

the LA RH SIP submittal already contains sufficient 

technical information to support this determination, 

the controls at Rhodia are sufficient to meet BART, 

and are therefore approvable in accordance with 

our proposal. However, as stated in our response, 

the LA RH SIP for Rhodia is not fully approvable 

at this time because it does not contain enforceable 

emissions limits for regional haze. 

12CAA 169A(b)(2); 40 CFR 51.308(e); and 64 FR 

35714, at 35741. 

emissions controls are sufficient to 

comply with the RHR reasonable 

progress mandate. The commenter also 

incorporated by reference comments 

from Earthjustice on the national Betterthan-BART proposed rule and 

comments from National Parks 

Conservation Association, et al. For the 

reasons stated above and the reasons 

provided in the national comments, the 

Transport Rule does not satisfy the 

requirements of the RHR, and cannot be 

approved as a substitute for BART as 

proposed. Instead, the EPA must 

promulgate a regional haze plan that 

contains all aspects of the State’s 

regional haze plan including sourcespecific NOX BART limits for the 

Louisiana EGUs. 

Response 5: As discussed above, in 

today’s rule, the EPA is taking final 

action on the proposed partial limited 

approval and partial disapproval of 

Louisiana’s RH SIP. These comments 

are beyond the scope of this rulemaking. 

EPA addressed these comments 

concerning the Transport Rule as a 

BART alternative in a final action that 

was signed on May 30, 2012. See 77 FR 

33642. The EPA’s response to these 

comments can be found in Docket ID 

No. EPA–HQ–OAR–2011–0729 at 

www.regulations.gov. Additionally, 

insofar as this comment discusses 

regional haze actions for states other 

than Louisiana, the comments are 

outside the scope of this rulemaking. 

Comment 6: The EPA proposed that 

the BART determination for Rhodia is 

deficient at this time. The SIP includes 

a BART analysis for Rhodia that the 

LDEQ feels is complete. The analysis 

takes into account all available control 

technologies for removing SO2 at the 

affected units. All of the available 

control technologies provide a control 

efficiency of approximately 94%. 

Rhodia considered three abatement 

alternatives: double absorption, sodium 

scrubbing (caustic/soda ash), and 

ammonia scrubbing. Rhodia selected 

caustic scrubbing as the most effective 

control option that is also cost effective. 

This control strategy is currently in 

place for Unit 2 and will be in place for 

Unit 1 by May 2012. SO2 emissions will 

be reduced from over 8,800 tons per 

year (tpy) to a permit limit of 1,075 tpy 

for the units combined. This control not 

only meets BART but surpasses the 

control for new facilities under New 

Source Performance Standards. 

Modeling results with the SO2 controls 

show all impacts of Rhodia to the 

Breton and Caney Creek Wilderness 

Areas are below 0.5 deciviews. The 

LDEQ believes that this source has the 

most stringent control strategy available 

and no further BART analysis is 

necessary as allowed by 40 CFR Part 51 

Appendix Y(IV)(D)(1)(9). The LDEQ 

anticipates that the controls will be 

installed for Unit 1 prior to the EPA 

approval of the LA RH SIP submittal. 

The controls will be required to be 

diligently maintained and are federally 

enforceable through Section 905 of the 

Louisiana Administrative Code (LAC), 

Title 33, Part III (denoted LAC 

33:III.905), which has been approved as 

part of the Louisiana SIP. The EPA 

should approve this BART analysis as it 

fulfills the BART requirements. 

Response 6: The LDEQ’s RH SIP 

submittal properly identified Rhodia as 

a subject-to-BART source and provided 

information concerning the BART 

determination for Rhodia. We proposed 

to find that Rhodia’s BART 

determination was deficient because it 

does not include a sufficient evaluation 

under 40 CFR 51.308(e)(1)(ii)(A). The 

LDEQ has determined that the control 

strategy selected for implementation by 

Rhodia is among the most stringent 

available. The LDEQ’s determination is 

corroborated by the information 

provided in the LA RH SIP submittal, 

including a determination that Rhodia’s 

units are subject-to-BART and the 

demonstration in the LA RH SIP 

Appendix G that the control strategies at 

Rhodia have approximately 94% control 

efficiency.9 The EPA finds that with the 

control strategy selected, the Rhodia 

units meet the BART requirements at 40 

CFR 51 Appendix Y.OV.D.1.9 10 with 

the exception of having enforceable 

emissions limits for regional haze in the 

SIP (see also response to Comment 11 in 

this action). Although the SIP submittal 

said that, post-control, Rhodia is no 

longer subject-to-BART, that 

determination is not approvable because 

once a unit is determined to be subject 

to BART, it must meet the requirements 

of 40 CFR 51.308(e)(1)(ii). However, the 

LDEQ’s comment letter in part 

addresses this deficiency in its 

determination that with controls, 

Rhodia meets BART. As indicated in the 

proposal, the LDEQ did not submit a 

complete BART evaluation for the 

Rhodia units; the submittal did not 

analyze controls for the units using the 

factors as required by 40 CFR 51.308(e). 

However, with the LDEQ’s finding that 

the controls at Rhodia are among the 

most stringent, the regional haze 

requirement for a BART analysis has 

been satisfied (however, the 

requirement for enforceable emissions 

limits is still not met).11 The EPA finds 

that the LDEQ acted reasonably within 

its discretion in determining that the 

controls selected by Rhodia are among 

the most stringent because the control 

efficiency for the technology selected is 

94%. 

However, the emissions limits for 

Rhodia’s subject-to-BART units were 

not included in the RH SIP, so the LDEQ 

must include the BART emission limits 

in the LA RH SIP through a SIP 

revision.12 More information about this 

requirement is provided in response to 

Comment 7 in this action. 

Comment 7: The EPA proposed that 

the state should have identified the 

Mosaic facility as being subject to BART 

and made a BART determination for the 

source. The LDEQ agrees that Mosaic 

should be identified as a BART facility. 

Mosaic has installed or is scheduled to 

install controls required by a Consent 

Decree (CD) for Sulfuric Acid Trains A, 

D, and E. Only Train A is subject to 

BART, but it should be noted that 

significant reductions have been made 

on Trains D and E also. The following 

is a summary of these controls: 

—A scrubber system has been installed 

on Train A reducing SO2 emissions by 

9,490 tpy. 

—SO2 emissions from Train D have 

been reduced by 576 tpy. 

—SO2 emissions from Train E have been 

reduced by 942 tpy. 

The LDEQ believes that this source 

has the most stringent control strategy 

available and no further BART analysis 

is necessary as allowed by 40 CFR Part 

51 Appendix Y(IV)(D)(1)(9). The 

scrubber system has been installed on 

Train A. The controls are required to be 

diligently maintained and are federally 

enforceable through LAC 33:III.905, 

which has been approved by the EPA as 


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39430 Federal Register / Vol. 77, No. 128 / Tuesday, July 3, 2012 / Rules and Regulations 

13 40 CFR 51.308(e)(1)(ii)(A). 

14CAA 169A(b)(2); 40 CFR 51.308(e); and 64 FR 

35714, at 35741. 

part of the Louisianan SIP. The EPA 

should approve this BART analysis as it 

fulfills the BART requirements. 

Response 7: The EPA acknowledges 

the LDEQ’s agreement that Mosaic is a 

subject-to-BART source. However, we 

cannot approve the BART analysis at 

this time. The LDEQ did not identify 

Mosaic as being subject to BART in the 

submitted SIP and therefore did not 

perform a BART analysis. Consequently, 

the EPA cannot act today upon the 

information in the comments because 

there is no logical outgrowth. ‘‘A final 

rule is only a logical outgrowth of the 

proposed rule if interested parties 

should have anticipated that the change 

was possible, and thus reasonably 

should have filed their comments on the 

subject during the notice-and-comment 

period. * * * Notice of the agency’s 

intention is crucial to ensure that 

agency regulations are tested via 

exposure to diverse public comment 

* * * to ensure fairness to affected 

parties, and * * * to give affected 

parties an opportunity to develop 

evidence in the record to support their 

objections to the rule and thereby 

enhance the quality of judicial review.’’ 

Int’l Union, United Mine Workers of 

America v. Mine Safety and Health 

Admin., 626 F.3d 84, 94–95 (D.C. Cir. 

2010) (citing Int’l Union, United Mine 

Workers of America v. Mine Safety and 

Health Admin., 407 F.3d 1250, 1259 

(D.C. Cir. 2005)) (internal quotations 

omitted). With regard to Mosaic, we 

proposed to disapprove the LA RH SIP 

submitted June 13, 2008 because the 

submittal failed to identify Mosaic as a 

subject-to-BART source. We noted that, 

once the LDEQ identifies Mosaic as 

subject to BART, the LDEQ needs to 

provide a BART evaluation for the 

EPA’s review and action. The LDEQ has 

not completed the rulemaking and SIP 

revision process for the determination 

that Mosaic is subject to BART or for the 

Mosaic BART evaluation. Based on our 

proposal, the public could not have 

anticipated that the EPA would approve 

the state’s identification of Mosaic as 

subject to BART and approve a BART 

evaluation for Mosaic. As a result, 

approval of Mosaic does not meet the 

standard for logical outgrowth for this 

final action. The LDEQ will need to 

revise its SIP after notice and comment 

to include Mosaic as a subject-to-BART 

source, and also to provide a 

determination of BART based on an 

analysis of the best system of 

continuous emission control technology 

available and associated emission 

reductions achievable for the facility.13

Although the LDEQ provided a 

determination in its comment that the 

control strategies selected for 

implementation by Mosaic are among 

the most stringent available, as 

discussed previously for the EPA to be 

able to consider this determination, the 

SIP must be revised after notice and 

comment to include the identification of 

Mosaic as a subject-to-BART source, and 

include a BART evaluation for the 

facility and be submitted to the EPA. 

The BART evaluation may include 

relevant permit information if 

applicable. 

For Mosaic, in addition to including 

the facility as a subject-to-BART source 

in the SIP, for the unit subject to BART 

for each pollutant, there must be 

sufficient information in the SIP to 

satisfy the requirement under 40 CFR 

50.308(e)(1)(ii)(A): ‘‘The determination 

of BART must be based on an analysis 

of the best system of continuous 

emissions control technology available 

and associated emissions reductions 

achievable. In this analysis, the state 

must take into consideration the 

technology available, the cost of 

compliance, the energy and non-air 

quality environmental impacts of 

compliance, any pollution control 

equipment in use at the source, the 

remaining useful life of the source, and 

the degree of improvement in visibility 

which may reasonably be anticipated to 

result from the use of such technology.’’ 

Also, the emissions limits for 

Mosaic’s controls are required to be 

included in the RH SIP, so the LDEQ 

must include the BART emission limits 

in the LA RH SIP through a SIP 

revision.14 More information about this 

requirement is provided in response to 

Comment 8 in this action. 

Comment 8: The EPA proposed that 

the BART determinations for Sid 

Richardson are deficient at this time. 

The LDEQ has determined that while 

SO2 controls may be technically 

feasible, they are not economically 

feasible. Modeling results for Sid 

Richardson show that in only 1 of the 

3 modeled years did the 98th percentile 

day show a visibility impact above 0.5 

dv. Sid Richardson provided a detailed 

analysis of the cost associated with 

implementing the technically feasible 

control techniques. Because all of the 

possible controls were deemed 

economically infeasible, an evaluation 

of the controls on the visibility impact 

at Breton is unnecessary. Sid 

Richardson is currently controlling SO2

by limiting sulfur content of the feed 

stock oil. The LDEQ has determined that 

this control is BART for this facility. 

The EPA should approve this BART 

analysis as it fulfills the BART 

requirements. The EPA is proposing that 

the NOX BART determination for Sid 

Richardson is deficient at this time. 

The LDEQ has determined that NOX

controls for Sid Richardson are 

technically infeasible. Sid Richardson 

presented detailed information in the 

BART analysis discussing the 

infeasibility of NOX controls aside from 

good combustion practices. NOX

controls were determined to be 

infeasible for the following reasons: 

Reactors: combustion modifications 

would affect the reaction process and 

ultimately, the yield and quality of the 

carbon black produced; selective noncatalytic reduction (SNCR) is infeasible 

because the reagent (urea or ammonia) 

would affect the yield and quality of the 

carbon black produced; selective 

catalytic reduction (SCR) is infeasible 

because of particulate loading that could 

come in contact with the catalyst 

causing a fire hazard; Absorption 

control is already in use since the flue 

gases are already in direct contact with 

the carbon black; Wet chemical 

scrubbers are used in a limited number 

of industrial applications and have not 

been used in the carbon black industry. 

Flares: There are no NOX control 

options available. Dryers: Combustion 

modifications would affect the yield and 

quality of the carbon black produced; 

SNCR is infeasible because the reagent 

(urea or ammonia) would affect the 

yield and quality of the carbon black 

produced; SCR is infeasible because of 

particulate loading that could come in 

contact with the catalyst causing a fire 

hazard; Absorption control is already in 

use since the flue gases are already in 

direct contact with the carbon black. 

The LDEQ stated that further BART 

analysis for NOX control is unnecessary 

and that the EPA should approve this 

BART analysis as it fulfills the BART 

requirements. 

Response 8: The EPA disagrees that 

the information provided in the SIP and 

comments for SO2 BART for Sid 

Richardson satisfies the requirements 

for a BART determination. The BART 

Rule provides that for each unit subject 

to BART, the state must satisfy the 

requirements under 40 CFR 

50.308(e)(1)(ii)(A) by providing a 

determination of BART which ‘‘must be 

based on an analysis of the best system 

of continuous emissions control 

technology available and associated 

emissions reductions achievable.’’ In 

this analysis the state must take the 

following into consideration: ‘‘The 

technology available, the cost of 

compliance, the energy and non-air 

quality environmental impacts of 


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Federal Register / Vol. 77, No. 128 / Tuesday, July 3, 2012 / Rules and Regulations 39431 

15CAA 169A(g)(2); 40 CFR 51.308(e)(1)(ii)(A). 

16 70 FR 39104, at 39170–71. 

17LDEQ Comment Letter, received March 29, 

2012. 

18 40 CFR 51.308(e)(1)(ii). 

19Note that the use of the 98th percentile of 

modeled visibility values is appropriate because it 

excludes roughly seven days per year from 

consideration. This approach captures ‘‘the sources 

that contribute to visibility impairment in a Class 

I area, while minimizing the likelihood that the 

highest modeled visibility impacts might be caused 

by unusual meteorology or conservative 

assumptions in the model.’’ 70 FR 39104, at 39121. 

20CAA 169A(b)(2); 40 CFR 51.308(e); and 64 FR 

35714, at 35741. 

21Civil Action No. H–05–0285, Federal District 

Court for the Southern District of Texas. 

compliance, any pollution control 

equipment in use at the source, the 

remaining useful life of the source, and 

the degree of improvement in visibility 

which may reasonably be anticipated to 

result from the use of such technology.’’ 

A determination of economic 

infeasibility is not sufficient information 

to meet these requirements. States have 

a duty to evaluate the statutory factors 

cited above.15 It is important that, in 

analyzing the technology, states take 

into account the most stringent emission 

control level that the technology is 

capable of achieving. States should 

consider the level of control that is 

currently achievable at the time the 

BART analysis is conducted.16 The CAA 

gives states discretion to make BART 

determinations; and the BART 

regulations and the preambles to the 

proposed and final BART Rule contain 

examples showing that a state has 

discretion to choose an alternative 

control level after considering the five 

statutory factors. However, section 

169A(g) of the CAA requires States to 

consider these statutory factors in 

determining BART for affected sources. 

If a proper evaluation of the five 

statutory factors demonstrates that an 

emission limit is BART for the subjectto-BART source in question, then the 

State must require the source to comply 

with such emission limit. The EPA 

agrees that states have considerable 

discretion in making BART 

determinations, but in doing so the State 

must conduct a proper evaluation of the 

five statutory factors, as required by 40 

CFR 51.308(e)(1)(ii)(A) and section 

169A(g) of the CAA. 

Also, the LDEQ states in the comment 

that Sid Richardson is currently 

controlling SO2 by limiting sulfur 

content of the feed stock oil, and as 

indicated in the LA RH SIP Appendix 

G, the limitation is already reflected in 

the Addis Plant’s emission limits; 17

however, the record does not provide 

material that supports this conclusion. 

No enforceable permit conditions or 

similar restrictions were provided, nor 

is there an analysis demonstrating that 

limiting of the sulfur content of the feed 

stock oil meets BART requirements. 

The EPA agrees with the comment 

that the modeling results show that the 

Sid Richardson facility has a visibility 

impact greater than the State’s 

established BART threshold of 0.5 dv in 

one of the three years considered. As 

such, Sid Richardson is subject to 

BART, and a full BART analysis is 

required. Consistent with 40 CFR 

51.308(e)(1)(i) and (ii), the LDEQ chose 

a 0.5 dv threshold for BART (LA RH SIP 

Chapter 9); included Sid Richardson in 

its list of BART-eligible sources within 

the State, and provided a determination 

of BART for the facility as required for 

each source in the State ‘‘that emits any 

air pollutant which may reasonably be 

anticipated to cause or contribute to any 

impairment of visibility in any 

mandatory Class I Federal Area. All 

such sources are subject to BART.’’ 18

The LDEQ determined that Sid 

Richardson is subject-to-BART because 

it is a BART-eligible source with 

visibility impacts on the 98th percentile 

day above the state’s chosen threshold, 

LA RH SIP Chapter 9, page 53.19 The 

EPA disagrees with the comment that an 

evaluation of the visibility benefits is 

not necessary. ‘‘CAA section 169A(g)(2) 

clearly requires an evaluation of the 

expected degree of improvement in 

visibility from BART controls. All five 

statutory factors [required under CAA 

169A(g)(2)], including cost-effectiveness 

and expected visibility improvement, 

should be reflected in the level of BART 

control that the State implements.’’ 70 

FR 39104, at 39129. Sid Richardson was 

determined to be subject-to-BART and a 

full BART analysis is required under 40 

CFR 51.308(e)(1)(ii)(A). 

The EPA disagrees that the 

information provided in the SIP and 

comments for NOX BART for Sid 

Richardson satisfies the requirements 

for a BART determination. For Sid 

Richardson for NOX, the LDEQ states in 

its comments that all controls are 

infeasible, which is consistent with the 

SIP submittal (LA RH SIP Chapter 9 

states that the Sid Richardson 

engineering analyses included the 

potential installation of NOX add-on 

controls, but it determined that all were 

infeasible—there were no demonstrated 

NOX scrubbing technologies at any 

carbon black plants). However, there is 

not sufficient information in the 

comment letter or in the LA RH SIP 

submittal to support this conclusion. In 

particular, we note that SCR has been 

discounted as technically infeasible 

because of the potential for particulate 

matter to contact the catalyst. We 

believe there are a number of 

applications where SCR has been used 

in situations with high particulate 

loading such as Fluidized Bed Catalytic 

Cracking Units (FCCU). In fact, as 

discussed in the Louisiana SIP and in 

other sections of this action, 

ConocoPhillips is a subject-to-BART 

source that has installed SCR on an 

FCCU. It is not apparent why this 

technology would not be applicable to 

carbon black plants, as well, given the 

similar high particulate matter 

situations. We do not believe Louisiana 

provided a sufficient record to justify 

that SCR is infeasible for the Carbon 

Black Industry. Therefore, the state must 

satisfy the requirement for NOX for Sid 

Richardson for an ‘‘analysis of the best 

system of continuous emission control 

technology available and associated 

emissions reductions achievable’’ as 

required under 40 CFR 

50.308(e)(1)(ii)(A). 

Also, the emission limits for Sid 

Richardson’s controls are required to be 

included in the RH SIP, so the LDEQ 

must include the BART emission limits 

in the LA RH SIP through a SIP 

revision.20 In addition, we encourage 

Sid Richardson and the LDEQ to 

consider achievable emissions 

reductions in determining emissions 

limits for this unit to include in the SIP, 

as required under 40 CFR 

50.308(e)(1)(ii)(A). More information 

about this requirement is provided in 

response to Comment 9 in this action. 

Comment 9: The EPA proposed that 

the BART determination for 

ConocoPhillips is deficient at this time. 

The SIP includes a BART analysis for 

ConocoPhillips that the LDEQ feels is 

complete. Conoco has installed or is 

scheduled to install controls required by 

a consent decree with the EPA 21 for the 

FCCU, process refinery flares and the 

crude unit heater. The following is a 

summary of these controls. 

• A wet gas scrubber was installed on 

the FCCU in 2009 that reduced SO2

emissions by 2,500 tpy and PM 

emissions by 220 tpy. SCR is scheduled 

to be installed by 2015 that will reduce 

NOX emissions by 760 tpy. 

• SCR and a NOX CEMS were 

installed on the crude unit heater in 

2009 that reduced NOX emissions by 

700 tpy. 

• Flare gas recovery was installed for 

the process refinery flares in 2011 that 

reduced NOX emissions by 16 tpy and 

SO2 emissions by 330 tpy. 

The LDEQ believes that the most 

stringent controls available have been 

installed or are scheduled to be installed 


sroberts on DSK5SPTVN1PROD with NOTICES
39432 Federal Register / Vol. 77, No. 128 / Tuesday, July 3, 2012 / Rules and Regulations 

22CAA 169A(b)(2); 40 CFR 51.308(e); and 64 FR 

35714, at 35741. 

23Step 1: Identify All Available Retrofit Control 

Technologies, Step 2: Eliminate Technically 

Infeasible Options, Step 3: Evaluate Control 

Effectiveness of Remaining Control Technologies, 

Step 4: Evaluate Impacts and Document the Results, 

and Step 5: Evaluate Visibility Impacts. 40 CFR 51 

Appendix Y.IV.D. 

on these sources. According to 40 CFR 

Part 51 Appendix Y(IV)(D)(1)(9) because 

the source will have the most stringent 

controls available, it is not necessary to 

comprehensively complete each step of 

the BART analysis. The EPA should 

approve this BART analysis as it fulfills 

the BART requirements. 

The EPA proposed to accept the 

BART analysis for remaining sources at 

the facility. However, most of these 

sources have a ‘‘D’’ which represents 

proposed disapproval in Table 10 of the 

TSD. The LDEQ feels that no further 

BART analysis is necessary for 

ConocoPhillips and requests that the 

‘‘D’’ be changed to ‘‘NA.’’ 

Response 9: We disagree with the 

comment that the BART evaluation for 

ConocoPhillips is complete for the 

subject-to-BART units that were 

included in the 2005 CD. Although 

some emissions reduction information 

was provided for some of the units and 

controls, without information about the 

year or baseline emissions, the EPA is 

unable to verify the determination that 

the control technologies and emission 

limits for SO2, NOX, and PM selected for 

the crude unit heater, the CO boilers, 

and the flares are among the most 

stringent. The submittal did not analyze 

controls for the units using the factors 

as required by 40 CFR 51.308(e). 

Although the LDEQ provided a 

determination in its comment that the 

control strategies selected for 

implementation by ConocoPhillips are 

among the most stringent available, the 

record does not provide sufficient 

material to support the LDEQ’s 

conclusion. The BART evaluation may 

include relevant permit information if 

applicable, and also may include a 

demonstration of emissions reductions 

achieved by the selected technologies. It 

is expected that emissions reductions 

for control technologies which are 

among the most stringent will be high 

unless the LDEQ can demonstrate that 

lower efficiency rates are sufficient to 

meet BART requirements. 

For ConocoPhillips, for the five units 

under the CD that are subject to BART, 

for each pollutant, there is not sufficient 

information in the SIP nor in the 

comments to satisfy the requirement 

under 40 CFR 50.308(e)(1)(ii)(A): ‘‘The 

determination of BART must be based 

on an analysis of the best system of 

continuous emissions control 

technology available and associated 

emissions reductions achievable. In this 

analysis the state must take into 

consideration the technology available, 

the cost of compliance, the energy and 

non-air quality environmental impacts 

of compliance, any pollution control 

equipment in use at the source, the 

remaining useful life of the source, and 

the degree of improvement in visibility 

which may reasonably be anticipated to 

result from the use of such technology.’’ 

Also, the emissions limits for 

ConocoPhillips’s controls are required 

to be included in the RH SIP, so the 

LDEQ must include the BART emission 

limits in the LA RH SIP through a SIP 

revision.22 In addition, we encourage 

ConocoPhillips and the LDEQ to 

consider achievable emissions 

reductions in determining emissions 

limits for this unit to include in the SIP, 

as required under 40 CFR 

50.308(e)(1)(ii)(A). More information 

about this requirement is provided in 

response to Comment 10 in this action. 

For the ConocoPhillips units which 

were not part of the CD, the Commenter 

is correct that the EPA proposed to 

accept the BART analysis for those 

units, and that Table 10 of the TSD is 

in error for those units. Accordingly, the 

EPA has revised the table and an 

updated Table 10 is provided in the 

docket associated with this action as an 

amendment to the TSD. 

Comment 10: The EPA should 

provide clarification that the CAA and 

the RHR both allow states the discretion 

to make BART determinations for nonEGUs, and states are not required to use 

the ‘‘5-step’’ analysis that is specifically 

required only for 750 MW+ EGUs. The 

proposal contains statements such as: 

‘‘* * * all subject to BART sources are 

required to comply with the five BART 

factors (or steps). 40 CFR 

51.308(e)(1)(ii)(A).’’ Additionally, the 

commenter is concerned that the EPA 

proposed to find that Louisiana’s RPGs 

and LTS contain deficiencies because 

they are based on BART determinations 

that are not fully approvable. Louisiana 

has met the obligation to determine 

BART for Louisiana refineries if they 

have documented the rationale for the 

BART determinations using their state 

authority. CAA section 169(b)(2)(A); 77 

FR 3966, at 3969. Some of the subjectto-BART determinations with a 

proposed disapproval are not EGUs. 

Therefore, the LDEQ has the discretion 

to make BART determinations in a 

fashion reasonable in the judgment of 

the LDEQ and supply the rationale to 

the EPA. The EPA has accepted states’ 

BART determinations for non-EGUs not 

subject to the ‘‘5-step’’ analysis. For 

example, the EPA proposed to approve 

Illinois’s BART determinations for two 

petroleum refineries on the basis that 

the Illinois Environmental Protection 

Agency found that the emissions limits 

for the subject-to-BART units 

established by CDs to meet BACT also 

satisfy BART. That proposal further 

states that the CDs are federally 

enforceable and the emissions limits at 

issue must be incorporated into 

federally enforceable permits. 77 FR 

3966, at 3973. Therefore, the EPA 

should approve Louisiana’s non-EGU 

BART determinations, especially the 

ConocoPhillips Refinery, that rely on 

emissions limits established by CDs. 

Response 10: We agree with the 

commenter that the five steps in the 

BART guidelines at 40 CFR 51 

Appendix Y.IV.D 23 are mandatory only 

for subject-to-BART EGUs with a total 

generating capacity greater than 750 

MWs. However, ‘‘all BART 

determinations must be based on an 

analysis of the best system of 

continuous emission control technology 

available and associated emission 

reductions achievable for each BARTeligible source that is subject to BART 

within the state.’’ For all BART 

determinations, including those for nonEGUs, 40 CFR 51.308(e)(1)(ii)(A) 

requires states to consider the following 

factors: the technology available; the 

costs of compliance; the energy and 

non-air quality environmental impacts 

of compliance; any pollution control 

equipment in use at the source; the 

remaining useful life of the source; and 

the degree of improvement in visibility 

which may reasonably be anticipated to 

result from the use of such technology. 

See also, 42 USC 7941(g)(2); CAA 

169A(g)(2). The submitted BART 

analyses should address all of these 

factors or provide some other basis for 

ensuring subject-to-BART units meet 

BART in order to be approvable. The 

commenter contends that the LDEQ has 

the discretion to make BART 

determinations in a fashion reasonable 

in the judgment of the LDEQ. To clarify, 

states are free to determine the weight 

and significance of each of the factors 

listed above, but they must arrive at a 

reasoned determination that is 

supported by an adequate record. We 

acknowledge that BART-determining 

authorities presented with equivalent 

facts and circumstances may arrive at 

different, but reasoned, BART 

determinations. For additional 

information about our final action on 

these non-EGU BART determinations, 

please see our discussion of the nonEGU BART determinations and 

enforceable emissions limits for those 


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Federal Register / Vol. 77, No. 128 / Tuesday, July 3, 2012 / Rules and Regulations 39433 

subject-to-BART units addressed in our 

responses to Comments 6, 7, 8, and 9 in 

this action. Finally, we disagree with 

the comment that the EPA should 

approve Louisiana’s non-EGU BART 

determinations that rely on emissions 

limits established by CDs. See the 

following response to Comment 11. 

Comment 11: Emission limits for the 

subject-to-BART units should not be 

required to be included in the SIP. The 

emissions limitations are contained in 

the permits and are enforceable as 

required. Furthermore, the LDEQ will 

rely on the SIP approved provision 

contained in LAC. 33:111.905, which 

specifies that ‘‘* * * when facilities 

have been installed on a property, they 

shall be used and diligently maintained 

in proper working order whenever any 

emissions are being made which can be 

controlled by the facilities, even though 

the ambient air quality standards in 

affected areas are not exceeded.’’ If 

necessary, the LDEQ will include the 

CDs affected between the EPA and 

Rhodia, Mosaic and ConocoPhillips, 

respectively, as evidence of enforceable 

emissions limitation. However, the 

LDEQ will not attach the operating 

permits that are the result of these CDs. 

Response 11: We disagree with the 

comment that emission limits for the 

subject-to-BART units should not be 

required to be included in the SIP. 40 

CFR 51.308(e) requires the state to 

‘‘submit an implementation plan 

containing emissions limits representing 

BART’’ for each subject-to-BART unit in 

the state. For an emissions limit 

contained in a federal CD to be a 

federally enforceable component of a 

RH SIP, the emissions limit itself must 

be incorporated into the SIP. States do 

have some flexibility in how this 

incorporation occurs. For example, a 

state could list the specific emissions 

limit for each subject-to-BART unit as 

part of the regulatory text in the SIP 

submittal or a state could incorporate 

these limits into its SIP submittal’s 

regulatory text by referencing the 

federally enforceable Title I permit that 

contains the emissions limits for the 

subject-to-BART units at a facility. See 

e.g., 77 FR 19, January 3, 2012; 76 FR 

80754, December 27, 2011; 76 FR 36329, 

June 22, 2011; and 76 FR 38997, July 5, 

2011. If the state chooses to incorporate 

emissions limits from a Title I permit 

into the SIP, the permit conditions must 

require a RH SIP revision in order for 

the BART emissions limits to be revised. 

However, the CDs themselves are not 

adequate to ensure enforceable 

emissions limits remain in place for 

purposes of BART for several reasons. 

Courts and parties to the litigation can 

change the terms of CDs without 

revising the RH SIP or notifying the 

public that a BART requirement is being 

altered. Additionally, CDs are not 

effective forever. The terms of a CD are 

subsumed into a permit, which could be 

altered during the permitting process 

without revising the RH SIP or notifying 

the public that a BART requirement is 

being altered. Absent some express 

correlation to the LA RH SIP, the 

emissions limits required under the CDs 

are not adequately enforceable to ensure 

continued compliance with BART. 

Moreover, if the emissions limits in a 

CD are relied upon to meet BART, the 

RH SIP must contain sufficient technical 

information to ensure compliance with 

BART. 

Comment 12: The commenter agrees 

that the LA RH SIP is deficient because 

elements of the State’s BART 

evaluations and determinations are not 

fully adequate to meet the federal 

requirements. Additionally, as a result 

of the deficiencies related to BART, the 

LTS and RPGs are not fully adequate to 

meet federal requirements. 

Response 12: We acknowledge the 

commenter’s support for those aspects 

of this action. We note that, as indicated 

in the above responses to comments 

from the LDEQ regarding Rhodia, some 

but not all of the deficiencies were 

addressed by the LDEQ’s comments 

although the emissions limits for Rhodia 

must be included in the SIP. 

Comment 13: Insofar as the EPA 

proposed to find that elements of the 

SIP submittal fully satisfy the RHR 

requirements, the commenter supports 

the EPA’s proposal. 

Response 13: We acknowledge the 

commenter’s support for those aspects 

of this action. 

IV. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable Federal regulations. 

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

Thus, in reviewing SIP submissions, the 

EPA’s role is to act on state law as 

meeting Federal requirements and does 

not impose additional requirements 

beyond those imposed by state law. 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This action is not a ‘‘significant 

regulatory action’’ under the terms of 

Executive Order 12866 (58 FR 51735, 

October 4, 1993) and is therefore not 

subject to review under Executive 

Orders 12866 and 13563 (76 FR 3821, 

January 21, 2011). 

B. Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq., because this 

SIP action under section 110 of the CAA 

will not in-and-of itself create any new 

information collection burdens but 

simply approves or disapproves certain 

State requirements for inclusion into the 

SIP. Burden is defined at 5 CFR 

1320.3(b). 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to conduct 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements unless the 

agency certifies that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

Small entities include small businesses, 

small not-for-profit enterprises, and 

small governmental jurisdictions. For 

purposes of assessing the impacts of 

today’s rule on small entities, small 

entity is defined as: (1) A small business 

as defined by the Small Business 

Administration’s (SBA) regulations at 13 

CFR 121.201; (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district or 

special district with a population of less 

than 50,000; and (3) a small 

organization that is any not-for-profit 

enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of today’s rule on small entities, 

I certify that this action will not have a 

significant impact on a substantial 

number of small entities. This rule does 

not impose any requirements or create 

impacts on small entities. This SIP 

action under section 110 of the CAA 

will not in-and-of itself create any new 

requirements but simply approves or 

disapproves certain State requirements 

for inclusion into the SIP. Accordingly, 

it affords no opportunity for the EPA to 

fashion for small entities less 

burdensome compliance or reporting 

requirements or timetables or 

exemptions from all or part of the rule. 

The fact that the CAA prescribes that 

various consequences (i.e., emission 

limitations) may or will flow from this 

action does not mean that the EPA 

either can or must conduct a regulatory 

flexibility analysis for this action. 

Therefore, this action will not have a 

significant economic impact on a 

substantial number of small entities. 


sroberts on DSK5SPTVN1PROD with NOTICES
39434 Federal Register / Vol. 77, No. 128 / Tuesday, July 3, 2012 / Rules and Regulations 

D. Unfunded Mandates Reform Act 

This action contains no Federal 

mandates under the provisions of Title 

II of the Unfunded Mandates Reform 

Act of 1995 (UMRA), 2 U.S.C. 1531– 

1538 for State, local, or tribal 

governments or the private sector. The 

EPA has determined that the 

disapproval action does not include a 

Federal mandate that may result in 

estimated costs of $100 million or more 

to either State, local, or tribal 

governments in the aggregate, or to the 

private sector. This action merely 

approves or disapproves pre-existing 

requirements under State or local law, 

and imposes no new requirements. 

Accordingly, no additional costs to 

State, local, or tribal governments, or to 

the private sector, result from this 

action. 

E. Executive Order 13132, Federalism 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), requires the EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’ 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132, because it 

merely approves or disapproves certain 

State requirements for inclusion into the 

SIP and does not alter the relationship 

or the distribution of power and 

responsibilities established in the CAA. 

Thus, Executive Order 13132 does not 

apply to this action. 

F. Executive Order 13175, Coordination 

With Indian Tribal Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000), because the SIP submittals the 

EPA is approving or disapproving 

would not apply in Indian country 

located in the state, and the EPA notes 

that it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. Thus, Executive Order 13175 

does not apply to this action. 

G. Executive Order 13045, Protection of 

Children From Environmental Health 

Risks and Safety Risks 

The EPA interprets Executive Order 

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

applying only to those regulatory 

actions that concern health or safety 

risks, such that the analysis required 

under section 5–501 of the Executive 

Order has the potential to influence the 

regulation. This action is not subject to 

Executive Order 13045 because it is not 

an economically significant regulatory 

action based on health or safety risks 

subject to Executive Order 13045 . This 

SIP action under section 110 of the CAA 

will not in-and-of itself create any new 

regulations but simply approves or 

disapproves certain State requirements 

for inclusion into the SIP. 

H. Executive Order 13211, Actions That 

Significantly Affect Energy Supply, 

Distribution or Use 

This action is not subject to Executive 

Order 13211 (66 FR 28355, May 22, 

2001) because it is not a significant 

regulatory action under Executive Order 

12866. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, section 12(d) (15 U.S.C. 272 

note) directs the EPA to use voluntary 

consensus standards in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures, and 

business practices) that are developed or 

adopted by voluntary consensus 

standards bodies. NTTAA directs the 

EPA to provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. 

The EPA believes that this action is 

not subject to requirements of Section 

12(d) of NTTAA because application of 

those requirements would be 

inconsistent with the CAA. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629, 

February 16, 1994) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

The EPA lacks the discretionary 

authority to address environmental 

justice in this action. In reviewing SIP 

submissions, the EPA’s role is to 

approve or disapprove state choices, 

based on the criteria of the CAA. 

Accordingly, this action merely 

approves or disapproves certain State 

requirements for inclusion into the SIP 

under section 110 of the CAA and will 

not in-and-of itself create any new 

requirements. Accordingly, it does not 

provide the 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. 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. The 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). This rule will be effective on 

August 6, 2012. 

L. Judicial Review 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by September 4, 2012. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. See CAA 

section 307(b)(2). 


sroberts on DSK5SPTVN1PROD with NOTICES
Federal Register / Vol. 77, No. 128 / Tuesday, July 3, 2012 / Rules and Regulations 39435 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Particulate 

matter, Regional haze, Reporting and 

recordkeeping requirements, Sulfur 

oxides, Visibility. 

Dated: June 15, 2012. 

Samuel Coleman, 

Acting Regional Administrator, Region 6. 

Therefore, 40 CFR part 52, as 

amended June 7, 2012, at 77 FR 33657 

and effective August 6, 2012, is further 

amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

■ 2. Amend § 52.985 by adding 

paragraphs (b) and (c) to read as follows: 

§ 52.985 Visibility protection. 

* * * * * 

(b) The regional haze plan submitted 

by Louisiana on June 13, 2008, includes 

measures for meeting the requirements 

of: 40 CFR 51.308(d), for the core 

requirements for regional haze plans, 

except for the requirements of 40 CFR 

51.308(d)(3); 40 CFR 51.308(f), for the 

commitment to submit comprehensive 

periodic revisions of regional haze 

plans; 40 CFR 51.308(g), for the 

commitment to submit periodic reports 

describing progress towards the 

reasonable progress goals; 40 CFR 

51.308(h), for the commitment to 

conduct periodic determinations of the 

adequacy of the existing regional haze 

plan; and 40 CFR 51.308(i), for 

coordination with state and Federal 

Land Managers. EPA has given partial 

limited approval to the plan provisions 

addressing these requirements. 

(c) The regional haze plan submitted 

by Louisiana on June 13, 2008, does not 

include fully approvable measures for 

meeting the requirements of 40 CFR 

51.308(d)(3), long-term strategy for 

regional haze as it relies on deficient 

non-electric generating units Best 

Available Retrofit 

Technology (BART) analyses; and 40 

CFR 51.308(e), BART requirements for 

regional haze visibility impairment with 

respect to emissions of visibility 

impairing pollutants from four nonelectric generating units. EPA has given 

partial disapproval to the plan 

provisions addressing these 

requirements. 

[FR Doc. 2012–15729 Filed 7–2–12; 8:45 am] 

BILLING CODE P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 54 

[WC Docket Nos. 10–90, 07–135, 05–337, 

03–109; GN Docket No. 09–51; CC Docket 

Nos. 01–92, 96–45; WT Docket No. 10–208; 

FCC 12–70] 

Connect America Fund, A National 

Broadband Plan for Our Future, 

Universal Service Reform—Mobility 

Fund 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule: limited forbearance. 

SUMMARY: In this document, the Federal 

Communications Commission 

(Commission) adopts a limited 

forbearance from requiring that the 

service area of an eligible 

telecommunications carrier (ETC) 

conform to the service area of any rural 

telephone company serving the same 

area for the Mobility Fund Phase I 

auction 901. This forbearance applies 

only with respect to conditional ETC 

designations for participating in 

Auction 901. 

DATES: Effective July 3, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Wireless Telecommunications Bureau, 

Auctions and Spectrum Access Division: 

call Sayuri Rajapakse, Scott Mackoul or 

Stephen Johnson at (202) 418–0660. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the CAF/ICC Second Report 

and Order released on June 27, 2012. 

The CAF/ICC Second Report and Order 

and related Commission documents 

may be purchased from the 

Commission’s duplicating contractor, 

Best Copy and Printing, Inc. (BCPI), 445 

12th Street SW., Room CY–B402, 

Washington, DC 20554, telephone 202– 

488–5300, fax 202–488–5563, or you 

may contact BCPI at its Web site: 

http://www.BCPIWEB.com. When 

ordering documents from BCPI, please 

provide the appropriate FCC document 

number, for example, FCC 12–70. The 

CAF/ICC Second Report and Order and 

related documents also are available on 

the Internet at the Commission’s Web 

site: http://wireless.fcc.gov or by using 

the search function for WT Docket No. 

10–208 on the Commission’s Electronic 

Comment Filing System (ECFS) Web 

page at http://www.fcc.gov/cgb/ecfs/. 

I. Introduction 

1. The Commission adopts a limited 

forbearance pursuant to section 10 of 

the Communications Act of 1934, as 

amended (the Act), 47 U.S.C. 160, from 

requiring that the service area of an 

eligible telecommunications carrier 

(ETC) conform to the service area of any 

rural telephone company serving the 

same area, pursuant to 47 U.S.C. 

214(e)(5) and 47 CFR 54.207(b). In 

particular, this forbearance applies only 

with respect to conditional ETC 

designations for participating in the 

Mobility Fund Phase I auction, ETC 

designations conditioned on receipt of 

Mobility Fund Phase I support. Such 

conditional ETC designations, and thus 

this forbearance, are also limited to the 

specific areas in which such an ETC 

becomes authorized to receive Mobility 

Fund Phase I support. 

2. The Commission concludes that 

forbearance in these limited 

circumstances furthers the public 

interest, advancing the Act’s and the 

Commission’s goals of promoting access 

to mobile service over current and next 

generation wireless networks in areas 

currently without such service by 

reducing barriers to participation in 

Phase I of the Mobility Fund. The 

Commission finds that application of 

the service area conformance 

requirements set forth in 47 U.S.C. 

214(e)(5) and 47 CFR 54.207(b) in these 

limited circumstances is not necessary 

to ensure that rates remain just and 

reasonable or to protect consumers. The 

Commission emphasizes that the 

forbearance it is granting is limited to 

petitioners seeking conditional 

designation as ETCs in areas eligible for 

Mobility Fund Phase I support in order 

to participate in the Mobility Fund 

Phase I auction and receive support. 

Parties petitioning for designation as an 

ETC for this purpose must satisfy all of 

the other statutory requirements 

applicable to ETCs under the Act. The 

forbearance order does not apply with 

respect to petitions for designation as an 

ETC for other purposes. In light of the 

requirement that, with one exception for 

Tribal entities, an applicant for the 

Mobility Fund Phase I auction, Auction 

901, must be designated as an ETC in 

every geographic area on which it 

wishes to bid by the time it applies to 

participate and in light of the short time 

remaining before the July 11, 2012 

deadline for filing Auction 901 

applications, the Commission finds that 

case-by-case forbearance is not feasible 

and grant blanket forbearance for this 

limited purpose. 

II. Background 

3. In the recent USF/ICC 

Transformation Order, 76 FR 73830, 

November 29, 2011 and 76 FR 81562, 

December 28, 2011, the Commission 

comprehensively reformed and 

modernized the universal service 

system to ensure that robust, affordable 

voice and broadband service, both fixed 


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