12944 Federal Register / Vol. 79, No. 45 / Friday, March 7, 2014 / Rules and Regulations 

Authority: 5 U.S.C. 301 and 31 U.S.C. 321. 

Subpart A also issued under 5 U.S.C. 552, as 

amended. Subpart C also issued under 5 

U.S.C. 552a. 

■ 2. In § 1.36; 

■ a. In the table in paragraph (c)(1)(vii): 

■ i. Revise the entries for IRS 46.002, 

46.003, and 46.005; 

■ ii. Remove the entry for IRS 46.009; 

■ iii. Revise the entry for IRS 46.015; 

■ iv. Remove the entry for IRS 46.022; 

and 

■ v. Revise the entry for IRS 46.050. 

■ b. In the table in paragraph (g)(1)(vii), 

revise the entry for IRS 46.050. 

The revisions read as follows: 

§ 1.36 Systems exempt in whole or in part 

from provisions of 5 U.S.C. 552a and this 

part. 

* * * * * 

(c) * * * 

(1) * * * 

(vii) * * * 

No. System name 

Treasury/IRS 46.002 Management Information System and Case Files, Criminal Investigation. 

Treasury/IRS 46.003 Confidential Informant Records, Criminal Investigation. 

Treasury/IRS 46.005 Electronic Surveillance and Monitoring Records, Criminal Investigation. 

Treasury/IRS 46.015 Relocated Witness Records, Criminal Investigation. 

Treasury/IRS 46.050 Automated Information Analysis and Recordkeeping, Criminal Investigation. 

* * * * * 

(g) * * * 

(1) * * * 

(vii) * * * 

No. System name 

Treasury/IRS 46.050 ........... Automated Information Analysis and Recordkeeping, Criminal Investigation. 

* * * * * 

Dated: February 20, 2014. 

Helen Goff Foster, 

Deputy Assistant Secretary for Privacy, 

Transparency, and Records. 

[FR Doc. 2014–04946 Filed 3–6–14; 8:45 am] 

BILLING CODE 4830–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2013–0227; FRL–9906–93– 

Region 6] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Oklahoma; Regional Haze and 

Interstate Transport Affecting 

Visibility; State Implementation Plan 

Revisions; Revised BART 

Determination for American Electric 

Power/Public Service Company of 

Oklahoma Northeastern Power Station 

Units 3 and 4 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is taking final action to 

approve revisions to the Oklahoma State 

Implementation Plan (SIP), submitted 

by the Oklahoma Department of 

Environmental Quality (ODEQ) to EPA 

on June 20, 2013, which address revised 

Best Available Retrofit Technology 

(BART) requirements for sulfur dioxide 

(SO2) and oxides of nitrogen (NOX) for 

Units 3 and 4 of the American Electric 

Power/Public Service Company of 

Oklahoma (AEP/PSO) Northeastern 

Power Station in Rogers County, 

Oklahoma. The revisions also address 

the requirements of the Clean Air Act 

(CAA) concerning non-interference with 

programs to protect visibility in other 

states. 

DATES: This final rule will be effective 

April 7, 2014. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R06–OAR–2013–0227. All 

documents in the docket are listed in 

the http://www.regulations.gov index. 

Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

or other information the disclosure of 

which is restricted by statute. Certain 

other material, such as copyrighted 

material, will be publicly available only 

in hard copy. Publicly available docket 

materials are available either 

electronically in http://

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. A 15 cent per 

page fee will be charged for making 

photocopies of documents. On the day 

of the visit, please check in at the EPA 

Region 6 reception area on the seventh 

floor at 1445 Ross Avenue, Suite 700, 

Dallas, Texas 75202–2733. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Terry Johnson (214) 665–2154, email 

johnson.terry@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. 

Table of Contents 

I. What is the background for this action? 

II. What final action is EPA taking? 

III. Response to Comments 

IV. Statutory and Executive Order Reviews 

I. What is the background for this 

action? 

The background for today’s final rule 

is discussed in detail in our August 21, 

2013 proposal (see 78 FR 51686). The 

comment period was open for 30 days, 

and 273 comments were received, 

including five comment letters opposed 

to the proposed action. 

II. What final action is EPA taking? 

We are approving Oklahoma’s June 

20, 2013 SIP revision submittal 

(‘‘Oklahoma RH SIP revision’’), which 

provides a revised BART determination 

for Units 3 and 4 of AEP/PSO’s 

Northeastern Power Station with 

accompanying enforceable 

documentation. This revised SO2 BART 

determination includes the following 

emission control requirements and 

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compliance schedules: (1) By January 

31, 2014, the facility will comply with 

an interim SO2 emission limit of 0.65 lb/ 

MMBtu at each unit individually on a 

30-day rolling average basis, with an 

additional SO2 limit of 3,104 lb/hr per 

unit on a 30-day rolling average basis; 

(2) by December 31, 2014, the facility 

will comply with a reduced interim SO2

emission limit of 0.60 lb/MMBtu per 

unit on a 12-month rolling average 

basis, with an additional 25,097 tpy 

combined cap for Units 3 and 4 on a 12- 

month rolling basis; (3) the facility will 

shut down one of the subject units 

(either Unit 3 or Unit 4) no later than 

April 16, 2016; (4) the facility will 

install and operate a dry sorbent 

injection (DSI) system on the unit that 

remains in operation past April 16, 

2016; (5) the unit remaining in 

operation will comply with an SO2

emission limit of 0.40 lb/MMBtu on a 

30-day rolling average basis from April 

16, 2016 through December 31, 2026, 

with additional limits of 1,910 lb/hr on 

a 30-day rolling average basis and 8,366 

tpy on a 12-month rolling basis (this 

limit may be lowered pursuant to the 

results of an optimization study to be 

conducted by AEP/PSO); and (6) the 

facility will incrementally decrease 

capacity utilization for the remaining 

unit between 2021 and 2026, 

culminating with the complete 

shutdown of the remaining unit no later 

than December 31, 2026. The state’s 

revised enforceable SO2 BART 

requirements for Units 3 and 4 of the 

Northeastern Power Station are 

contained in the submitted ‘‘First 

Amended Regional Haze Agreement, 

DEQ Case No. 10–025 (March 2013)’’ 

that revises the previously submitted 

‘‘PSO Regional Haze Agreement, DEQ 

Case No. 10–025 (February 10, 2010). 

Consequently, we are approving the 

‘‘PSO Regional Haze Agreement, DEQ 

Case No. 10–025 (February 10, 2010),’’ 

as amended by the ‘‘First Amended 

Regional Haze Agreement, DEQ Case 

No. 10–025 (March 2013).’’ 

We are also taking final action to 

approve the following accelerated NOX

BART compliance schedule included in 

the submitted revised BART 

determination for Northeastern Power 

Station Units 3 and 4: (1) By December 

31, 2013, the facility will comply with 

an emission limit of 0.23 lb/MMBtu on 

a 30-day rolling average basis with an 

additional limit of 1,098 lb/hr per unit 

on a 30-day rolling average basis and a 

9,620 tpy combined cap for both units; 

and (2) the unit that remains in 

operation shall undergo further control 

system tuning and by April 16, 2016, 

comply with an emission limit of 0.15 

lb/MMBtu on a 30-day rolling average 

basis with an additional limit of 716 lb/ 

hr on a 30-day rolling average basis and 

a cap of 3,137 tpy on a 12-month rolling 

basis. ODEQ also submitted an 

enforceable agreement containing the 

accelerated compliance schedule. For 

the revised NOX BART determination, 

therefore, we also are approving the 

‘‘PSO Regional Haze Agreement, DEQ 

Case No. 10–025 (February 10, 2010),’’ 

as amended by the ‘‘First Amended 

Regional Haze Agreement, DEQ Case 

No. 10–025 (March 2013),’’ because it 

makes enforceable the NOX BART 

emission limitations and schedules for 

AEP/PSO’s BART-subject units in 

Oklahoma. 

In addition to approving Oklahoma’s 

revised enforceable SO2 BART 

determination for AEP/PSO 

Northeastern Power Station Units 3 and 

4, we are also taking final action to 

approve that portion of the Oklahoma 

RH SIP revision concerning Oklahoma’s 

interstate transport obligations. With the 

approval of this revised BART 

determination for AEP/PSO 

Northeastern Power Station Units 3 and 

4, the enforceable RH Agreement, and 

an enforceable commitment, we find 

that the Oklahoma RH SIP as a whole 

addresses the requirements of the 

interstate transport provisions of CAA 

section 110(a)(2)(D)(i)(II) as applied to 

this source and its associated impacts 

on other states’ programs to protect 

visibility in Class I Areas. The ODEQ’s 

enforceable commitment is found in the 

SIP Narrative at page 10. 

Implementation of the enforceable 

commitment is only necessary if the 

Northeastern Power Station is not able 

to achieve the equivalent of 0.3 lbs SO2/ 

million Btu through a combination of 

unit shutdowns and implementation of 

DSI, as this level of reduction was 

assumed in the multistate modeling 

performed by the Central Regional Air 

Planning Association (CENRAP) that 

provided the basis for Oklahoma’s and 

other Midwestern States’ SIPs. The 

enforceable commitment obligates 

ODEQ to ‘‘obtain and/or identify 

additional SO2 reductions within the 

State of Oklahoma to the extent 

necessary to achieve the anticipated 

visibility benefits estimated’’ by the 

CENRAP. For example, any additional 

SO2 emissions reductions that can be 

obtained or identified from the 

northeast quadrant of the State will be 

presumed to count toward the emission 

reductions necessary to achieve the 

anticipated visibility benefits associated 

with a 0.30 lb/MMBtu emission limit at 

Northeastern Power Station. Emissions 

reductions obtained outside the 

northeast quadrant that are technically 

justified will also be counted. Finally, if 

necessary, additional emissions 

reductions shall be obtained via 

enforceable emission limits or control 

equipment requirements where 

necessary and submitted to EPA as a SIP 

revision as expeditiously as practicable, 

but in no event later than the end of the 

first full Oklahoma legislative session 

occurring subsequent to AEP/PSO’s 

submission of the evaluation and report 

required by Paragraph 1(f) of 

Attachment A of the AEP/PSO 

Settlement Agreement presented in 

Appendix I of the Oklahoma RH SIP 

revision. Moreover, any additional 

reductions that are obtained prior to the 

2018 Regional Haze SIP revision 

required by 40 CFR 51.308(f) but not 

accounted for in the above-referenced 

modeling will be identified in the 2018 

revision. 

We have made the determination that 

the Oklahoma RH SIP revision is 

approvable because the revision was 

adopted and submitted as a SIP revision 

in accordance with the CAA and EPA 

regulations regarding the regional haze 

program and meets the CAA provisions 

concerning non-interference with 

programs to protect visibility in other 

states. We are taking this final action 

today under section 110 and part C of 

the CAA. 

As explained in our August 21, 2013 

proposal (see 78 FR 51686), as a result 

of today’s approval action we are taking 

action to amend the regional haze 

Federal Implementation Plan (FIP) for 

Oklahoma at 40 CFR 52.1923. The 

action to amend the FIP is in a separate 

action contained in today’s Federal 

Register. Upon the effective date of the 

Federal Register notice amending the 

FIP, Units 3 and 4 of AEP/PSO’s 

Northeastern Power Station will no 

longer be covered by the FIP. 

III. Response to Comments 

We received a total of 273 comments, 

including five comments in opposition 

to our proposed approval of the 

Oklahoma RH SIP revision that were 

submitted by U.S. Representative Jim 

Bridenstine, the Oklahoma Attorney 

General, the Consumer Coalition of 

Oklahoma, the Oklahoma Industrial 

Energy Consumers, and the Quality of 

Service Coalition, and 268 comments in 

support from the Sierra Club and its 

members in Oklahoma. Copies of the 

comments are available in the docket for 

this rulemaking. A summary of the 

issues raised in the comment letters, 

and our responses, follows: 

Comment: We received several 

comment letters containing claims that 

ODEQ’s revised BART determination for 

the AEP/PSO Northeastern Power 

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12946 Federal Register / Vol. 79, No. 45 / Friday, March 7, 2014 / Rules and Regulations 

1The state of Oklahoma and AEP/PSO filed 

petitions for review of EPA’s FIP, and the parties 

have separately entered into a settlement agreement 

that includes a timeline for preparing and 

processing the Oklahoma RH SIP revision that is the 

subject of today’s action. A copy of the Settlement 

Agreement may be found in Appendix I of the 

Oklahoma RH SIP revision. 

2 40 CFR Part 51, app. Y, at IV.D.4.h.2. 3 78 FR 51692 

Station did not consider true energy 

impacts. These comment letters 

generally assert that ODEQ did not make 

a reasonable BART determination 

because it relied upon AEP/PSO’s BART 

analysis, which they claim failed to 

consider the true energy impacts of 

compliance and the costs of compliance 

under the Settlement Agreement.1 The 

commenters claim that overlooking 

these costs of compliance led to an 

incorrect determination of costeffectiveness of the SO2 emissions 

controls attributable to the early 

retirements under the Settlement 

Agreement. The commenters submit 

that early retirement of the two coalfired units at issue constitutes at least an 

indirect energy impact that is ‘‘unusual 

or significant’’ and quantifiable and 

therefore should have been considered 

in ODEQ’s BART analysis. The 

commenters further assert that ODEQ 

has concluded that the revised BART 

determination is cost-effective based on 

an analysis that does not include 

replacement capacity and energy costs 

that AEP/PSO would be required to 

incur due to the mandated early 

retirement of the two units. Finally, 

these commenters also submit that 

ODEQ and EPA should have considered 

in their energy impacts analyses the 

‘‘significant economic disruption or 

unemployment’’ that will result from 

the Oklahoma RH SIP revision and cite 

the risk of rate shock resulting from 

natural gas price fluctuations, risk of 

reduction of electric grid reliability, and 

potential for increased unemployment. 

Response: We disagree with these 

commenters. The BART Guidelines only 

require states to consider the direct 

energy consumption of the various 

control options under consideration, not 

indirect energy impacts.2 While the 

BART guidelines do allow states to 

consider indirect impacts if they would 

be ‘‘unusual or significant,’’ there is no 

indication that Oklahoma ignored any 

such impacts here. The commenters 

allege that retirement of the AEP/PSO 

units will lead to ‘‘significant economic 

disruption or unemployment’’ or rate 

shock, but provide no evidence to 

support such assertions. Consequently, 

we believe the State acted reasonably by 

focusing its BART analysis on the direct 

energy impacts of the various control 

options. 

We also note that AEP/PSO offered 

the BART determination in question to 

ODEQ as an alternative to our FIP, 

which indicates that the company found 

the alternative more economical, 

flexible, or consistent with its business 

strategy. AEP/PSO’s decision to retire 

these aging units by dates certain is one 

that involves a variety of considerations 

that lie outside the BART analysis, 

including increasing costs of 

maintenance, economics of fuels, and 

costs of compliance with non-air quality 

requirements. Given the broad range of 

factors that affect a utility’s decisions 

regarding the make-up of its power 

plant fleet, it would not be reasonable 

for EPA to second-guess decisions 

regarding the remaining useful life of 

facilities. Consequently, we believe that, 

in addition to its evaluation of energy 

impacts, the State also appropriately 

considered the remaining useful life of 

the AEP/PSO units in determining 

BART. 

Regarding potential unemployment of 

AEP/PSO Northeastern Power Station 

workers, however, we received one 

comment that notes that AEP/PSO has 

extraordinary resources to redeploy its 

Northeastern Power Station employees 

affected by the Settlement Agreement 

and proposed SIP revision, and has 

committed to doing so. 

Comment: We received several 

comment letters suggesting that the 

proposed SIP revision is a fuel switch 

masquerading as BART. These 

commenters point out that BART, by its 

very nature, must be a ‘‘retrofit 

technology.’’ They note that the BART 

Guidelines set forth the five basic steps 

of a case-by-case BART analysis, which 

are centered on the evaluation and 

identification of ‘‘available emission 

retrofit control technologies.’’ These 

commenters assert that inclusion of a 

facility closure as part of a BART 

determination necessarily results in a 

fuel switch, as the subject utility must 

acquire replacement capacity. In their 

view, EPA will have directed a switch 

in fuel forms—the direct opposite of the 

agency’s stated intent in the BART 

Guidelines. 

Response: We disagree with the 

commenters that a BART analysis is 

limited to the consideration of options 

that require the installation of controls. 

We note that both AEP/PSO and 

Oklahoma Gas and Electric (OG&E) have 

voluntarily adopted fuel switching in 

the past as a strategy to address BART 

when they switched to low sulfur coal. 

Although EPA disagreed that low sulfur 

coal constituted BART, it was not 

because the option represented a fuel 

switch, but rather because we found that 

the installation of more stringent 

controls constituted BART. Although 

EPA’s regulations do not require states 

to consider a fuel switch or a shutdown 

of an existing unit as part of their BART 

analyses, a state can certainly include 

such options in its analysis where a 

company voluntarily offers such 

measures as a strategy for reducing 

emissions. 

Comment: We received comments 

that our proposed action abandoned the 

unit-by-unit approach to analyzing 

BART. These commenters reference our 

Technical Support Document for the 

proposed approval of the Oklahoma RH 

SIP revision, which states that BART 

should be a unit-by-unit analysis, and 

assert that in proposing to approve 

ODEQ’s BART determination, EPA has 

abandoned the unit-by-unit analysis and 

instead compared the ODEQ’s BART 

determination involving the shutdown 

of a generating unit against our FIP’s 

proposed emissions control 

technologies and related emissions 

limits. The commenters claim that in so 

doing, EPA has inappropriately 

evaluated the closure of a unit as a 

‘‘technology’’ and analyzed two units 

together. Another commenter takes the 

opposite view, observing that ‘‘EPA has 

not taken the approach of comparing the 

SIP Revision to the FIP. Appropriately, 

EPA has simply reviewed ODEQ’s 

BART analysis for consistency with the 

Clean Air Act and the BART 

Guidelines.’’ 

Response: As we noted in our 

proposal, while BART determinations 

are typically made on a unit-by-unit 

basis, we believe that ODEQ’s decision 

to evaluate BART on a facility-wide 

basis is a reasonable way to take into 

account the visibility and energy and 

non-air quality environmental benefits 

associated with unit shutdowns. While 

we believe ODEQ’s facility-wide 

approach to BART is reasonable, we 

also analyzed BART on a unit by unit 

basis.3 We then conducted our own 

unit-by-unit analysis to confirm the 

State’s conclusions, including the 

consideration of a scenario not 

considered by ODEQ, in which the unit 

that remains in operation after April 16, 

2016 would install dry flue gas 

desulfurization/spray dryer absorber 

(DFGD/SDA) rather than DSI. We also 

made adjustments to ODEQ’s cost and 

visibility calculations to take into 

account more recent information 

regarding the facility’s baseline 

‘‘uncontrolled’’ emissions and the 

remaining useful life of the facility. The 

adjustments were necessary to properly 

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assess the cost and visibility factors on 

a unit-by-unit basis. 

Comment: We received several 

comments concerning our costs of 

compliance analysis. The commenters 

believe that we underestimated the costs 

of compliance associated with ODEQ’s 

revised BART determination for AEP/ 

PSO’s units. One of the several 

commenters that believed we 

underestimated the costs of compliance 

conducted an independent analysis and 

believes that estimates prepared by 

AEP/PSO benefit from ‘‘accounting 

gimmicks.’’ This commenter states that 

its analysis demonstrates that the 

Oklahoma RH SIP revision will cost 

$529 million more in net present value 

and $3 billion more in nominal dollars 

than the FIP currently in place. We also 

received a comment in support of our 

costs of compliance analysis, which 

states that it would not be legally sound 

for ODEQ to have considered the costs 

of replacement power or any other costs 

beyond those of emission controls in its 

revised BART analysis. 

Response: Unfortunately, we cannot 

respond to the commenters’ assertions, 

because the commenter failed to provide 

any details concerning its cost analysis. 

We note, however, that regardless of the 

cost of the State’s BART determination, 

EPA cannot disapprove a SIP measure 

simply because the measure will be 

more costly than controls required in a 

FIP. Union Electric Co., v. U.S. EPA, 427 

U.S. 246, 255–66 (1976); 42 U.S.C. 

7410(a)(2). 

Comment: We received one comment 

in support of the proposed action, 

which indicated that the Oklahoma RH 

SIP revision submittal satisfies EPA’s 

and ODEQ’s obligations under the Clean 

Air Act. The commenter notes that the 

CAA instructs states to contemplate the 

remaining useful life of the source and 

the BART Guidelines acknowledge that 

a company may agree to shut down a 

unit prior to the statutory deadline for 

BART controls. The commenter asserts 

that ODEQ acted properly in taking into 

account AEP/PSO’s enforceable 

commitment to retire one unit by 2016 

when comparing costs. Likewise, the 

Commenter believes that EPA’s 

conclusion that DSI is more costeffective than DFGD/SDA is correct, as 

demonstrated by the agency’s unit-byunit analysis and taking into account 

the remaining useful life of the plant. 

Response: We thank the commenter 

for the support and agree with the 

commenter’s conclusions. 

Comment: We received two comments 

asserting that EPA and ODEQ have 

usurped the authority of the Oklahoma 

Corporation Commission (OCC) and 

ordered the closure of a facility without 

consideration of system reliability 

impacts, rate impacts, or any other 

impacts on AEP/PSO customers. These 

commenters assert that regulatory issues 

associated with the retirements have 

never been considered by the OCC, 

which has the specialized expertise and 

appropriate jurisdiction to consider 

such issues. 

Response: We are not usurping the 

OCC’s authority by approving a SIP 

revision submitted from the State of 

Oklahoma that requires the closure of 

any of AEP/PSO’s facilities. On the 

contrary, we are carrying out our 

statutory obligations to review the 

Oklahoma RH SIP revision. We are 

required to approve a SIP revision that 

complies with the applicable 

requirements of the CAA and our 

implementing regulations. 42 U.S.C. 

7410(k). Here, ODEQ made a revised 

BART determination for Units 3 and 4 

at the Northeastern Power Station that 

relied on retirement dates proposed and 

agreed to by the facility’s owner, AEP/ 

PSO. We have reviewed ODEQ’s revised 

BART determination and concluded 

that it satisfies all applicable 

requirements of the CAA, the Regional 

Haze Rule, and the BART Guidelines. 

Therefore, we are required to approve 

the Oklahoma SIP revision. 

Comment: We received one comment 

that our proposed action triggers 

requirements of the Regulatory 

Flexibility Act (RFA). This commenter 

claims that the proposed action will 

have significant adverse economic 

impact on small entities, including 

small commercial and industrial 

customers of PSO, contrary to EPA’s 

certification otherwise, and that 

requirements of the Regulatory 

Flexibility Act are thus triggered. 

Response: Courts have interpreted the 

RFA to require a regulatory flexibility 

analysis only when small entities will 

be subject to the requirements of the 

agency’s action. See, e.g., Michigan v. 

EPA, 213 F.3d 663 (D.C. Cir. 2000); MidTex Elec. Co-op, Inc. v. FERC, 773 F.2d 

327 (D.C. Cir. 1985). The EPA’s action 

here would not establish requirements 

applicable to small entities. In our 

proposal, we certified that our rule will 

not have a significant economic impact 

on a substantial number of small entities 

in compliance with the RFA. We 

reached this decision because our SIP 

approval under section 110 of the Clean 

Air Act does not itself create any new 

requirements but simply approves 

Oklahoma’s existing State rule. Our 

action does not place additional 

regulatory burdens on any entity 

including AEP ratepayers. Therefore, we 

properly certified that this action will 

not have a significant economic impact 

on a substantial number of small 

entities. Moreover, due to the nature of 

the Federal-State relationship under the 

Clean Air Act, preparation of a 

flexibility analysis would constitute 

Federal inquiry into the economic 

reasonableness of a State action. The 

Clean Air Act forbids EPA to base its 

actions concerning SIPs on such 

grounds. Union Electric Co., v. U.S. 

EPA, 427 U.S. 246, 255–66 (1976); 42 

U.S.C. 7410(a)(2). 

Comment: We received one comment 

concerning compliance with Executive 

Order (EO) 12866 and OMB review of 

the proposed action. The commenter 

states that the costs reviewed by ODEQ 

and EPA related only to plant 

modifications and equipment to achieve 

the suggested regional haze and 

interstate transport reductions. The 

commenter notes that Executive Order 

12866, section 1(11) states that ‘‘each 

agency shall tailor its regulations to 

impose the least burden on society, 

including individuals, business of 

differing sizes, and other entities 

(including small communities and 

governmental entities), consistent with 

obtaining the regulatory objectives, 

taking into account, among other things, 

and to the extent practicable, the costs 

of cumulative regulations.’’ The 

commenter asserts that the societal 

impacts of EPA’s proposed approval of 

the Oklahoma RH SIP revision should 

have been considered and that the 

proposed action should have undergone 

OMB review. 

Response: Under EO 12866, an action 

is economically significant if it is likely 

that it may ‘‘[h]ave an annual effect on 

the economy of $100 million or more or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or tribal governments or 

communities.’’ EO 12866 allows OMB to 

review actions that fall within this 

category. This action was not reviewed 

by OMB because our rule is not 

economically significant. It is merely an 

approval under section 110 of the Clean 

Air Act. It does not create any 

additional requirements but merely 

approves an existing state rule. Thus, 

our rule would not result in costs over 

$100 million or adversely affect in a 

material way the economy, a sector of 

the economy, productivity, competition, 

jobs, the environment, public health or 

safety, or State, local, or tribal 

governments or communities. 

Comment: We received several 

comments concerning tribal 

consultation issues and compliance 

with Executive Order 13175. These 

commenters believe that the energy 

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12948 Federal Register / Vol. 79, No. 45 / Friday, March 7, 2014 / Rules and Regulations 

impacts of the revised BART 

determination, in particular significant 

rate increases, will have tribal 

implications and impose substantial 

direct compliance costs on tribal 

governments. One commenter notes that 

AEP/PSO’s service territory covers 

portions of at least 13 federally 

recognized Indian tribes and that the 

Choctaw Nation recently participated in 

AEP/PSO’s energy efficiency program. 

These commenters question whether 

our proposed action complies with EO 

13175 and request that we prepare a 

tribal impact summary statement. 

Response: Executive Order 13175, 

entitled ‘‘Consultation and Coordination 

with Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000), directs 

agencies to develop an accountable 

process to ensure ‘‘meaningful and 

timely input by tribal officials in the 

development of regulatory policies that 

have tribal implications.’’ EO 13175 

section (5)(a). Consistent with EO 

13175, the 1984 EPA Policy for the 

Administration of Environmental 

Programs on Indian Reservations, and 

the May 4, 2011 EPA Policy on 

Consultation and Coordination with 

Indian Tribes, Region 6 provided 

information concerning this action at a 

regular meeting of the Tribal 

Environmental Coalition in Oklahoma 

that was held at the Sac and Fox 

Learning Center on July 16, 2013 and 

also offered an opportunity to engage in 

government-to-government consultation 

with Regional Tribal management. 

Additionally, Region 6 provides 

information and updates at quarterly 

Regional Tribal Operations Committee 

(RTOC) meetings. To date, no Tribes 

have provided comments to EPA or 

requested government-to-government 

consultation with the Region on this 

action. 

EO 13175 section (5)(b) states that no 

agency may promulgate any regulation 

that has tribal implications, imposes 

substantial direct compliance costs on 

Indian tribal governments, and is not 

required by statute unless the direct 

costs of compliance with the proposed 

rule are paid by the Federal government 

or the agency consults with tribes, 

provides the Director of OMB a tribal 

summary impact statement, and makes 

available to the Director of OMB any 

written communication tribal officials 

submitted to the agency. Our approval 

of the Oklahoma RH SIP revision does 

not directly apply since the facility is 

not located in Indian country. Moreover, 

the facilities that will incur the direct 

costs of compliance are not tribally 

owned or operated. The possibility that 

a tribe, as a consumer, may be affected 

by a rate change, does not implicate EO 

13175. Therefore, EPA was not required 

to prepare a tribal impact summary 

statement. 

Comment: We received one comment 

that our proposed action does not 

comply with our own policy on tribal 

consultation. The commenter suggests 

that we should suspend this rulemaking 

until we have engaged in consultation 

with affected tribes in Oklahoma. The 

commenter notes that AEP/PSO serves a 

portion of the Osage Indian Reservation 

in northeast Oklahoma, and that the 

following tribal nations have casinos 

within AEP/PSO’s service territory: the 

Choctaw Nation in Broken Arrow and 

McAlester; the Osage Nation in Tulsa, 

Bartlesville, and Sand Springs; and the 

Muscogee (Creek) Nation in Okmulgee. 

Response: Consistent with the EPA 

Policy on Consultation and 

Coordination with Indian Tribes, Region 

6 provided information concerning this 

action at a regular meeting of the Tribal 

Environmental Coalition in Oklahoma 

that was held at the Sac and Fox 

Learning Center on July 16, 2013 and 

offered an opportunity to engage in 

government-to-government consultation 

with Regional Tribal management. 

Additionally, Region 6 provided 

information and updates at quarterly 

Regional Tribal Operations Committee 

(RTOC) meetings. No Tribes provided 

comments to EPA or requested 

government-to-government consultation 

on this action. 

Comment: We received several 

comments regarding opportunities for 

public participation associated with this 

proposed action, in particular 

concerning the number and location of 

public hearings. These commenters 

point out that the only public hearing 

on the Oklahoma RH SIP revision was 

conducted by ODEQ in Oklahoma City 

in May 2013, and that no public 

hearings have been conducted by EPA 

or conducted within the affected AEP/ 

PSO service territories, which cover the 

northeastern and southwestern corners 

of the state. The commenters request 

that additional public hearings be 

conducted by EPA within the AEP/PSO 

service territories to allow potentially 

affected citizens a better opportunity to 

provide meaningful comments on EPA’s 

proposed approval of the Oklahoma RH 

SIP revision. One commenter references 

EPA’s proposed FIP for BART at the 

Navajo Generating Station (NGS) in 

Arizona for which EPA has committed 

to conduct several public hearings 

throughout Arizona. Two of the 

commenters additionally note that no 

hearing was conducted for the 

Settlement Agreement associated with 

ODEQ’s revised BART determination for 

Units 3 and 4 at Northeastern Power 

Station. 

Response: The CAA requires a state to 

provide an opportunity to request a 

public hearing on any proposed SIP 

revision before it is adopted. 42 U.S.C. 

7410(a)(2) and 7410(l). Additionally, 40 

CFR 51.102(a) spells out these public 

hearing requirements; however, the 

regulation is silent concerning the 

location of any public hearing that is 

held, and multiple public hearings are 

not required. For SIP revisions, the 

hearing requirement is appropriately 

assigned to the states because the state 

agencies, rather than the EPA, are 

adopting the substantive requirements 

of the SIP and have the ability to amend 

the proposed SIP revision in response to 

comments received. The ODEQ fulfilled 

this requirement with the public hearing 

it conducted in Oklahoma City on May 

20, 2013. 

When promulgating a FIP, such as 

EPA’s proposed FIP for BART at NGS in 

Arizona referenced by the commenter, 

EPA is required to provide an 

opportunity for public hearing. 42 

U.S.C. 7607(d)(1)(B) and (5). Likewise, 

in the process of promulgating our FIP 

for BART in Oklahoma, we conducted 

two hearings in 2011 in Oklahoma City 

and Tulsa. However, today’s action does 

not promulgate a FIP, but rather 

approves the State’s submittal to revise 

its RH SIP. Neither the CAA nor the 

Administrative Procedures Act (APA) 

requires EPA to provide a public 

hearing for actions on SIPs. 

In taking action on this SIP submittal, 

EPA has complied with the applicable 

statutory requirements for public 

participation under the Administrative 

Procedure Act, which does not require 

an opportunity for public hearing. 5 

U.S.C. 553(c). While a public hearing is 

not statutorily required for SIP actions, 

EPA recognizes that the EPA retains 

discretion to offer public hearings. EPA 

elected not to conduct a public hearing 

for this SIP action for several reasons. 

EPA may conduct a discretionary public 

hearing when it is necessary to glean 

additional information from the public; 

however, we did not feel that it was 

necessary here. We believe the 

opportunities for public participation 

during ODEQ’s rulemaking process, 

including the State’s public hearing, 

along with the opportunity to provide 

written comments to EPA on our 

proposed approval of the Oklahoma RH 

SIP revision provided significant 

opportunity for affected citizens in 

Oklahoma to participate in this 

rulemaking. In response to the Federal 

Register notice, we received 273 

comments on our proposed approval of 

the Oklahoma RH SIP revision, all of 

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which are given full consideration in 

this final action. In our view, this 

demonstrates that the public had 

sufficient opportunity to participate in 

this rulemaking. 

Finally, the CAA requires EPA to 

provide a 30-day public comment 

period before EPA enters any proposed 

settlement agreement; however, this 

requirement is limited to written 

comments. 42 U.S.C. 7413(g). EPA met 

this requirement when it published a 

30-day notice in the Federal Register 

(77 FR 67814, November 14, 2012) and 

considered comments received on the 

proposed Settlement Agreement. EPA 

was not required to offer a public 

hearing for the Settlement Agreement 

associated with ODEQ’s BART 

determination. 

Comment: We received numerous 

comments that the Oklahoma RH SIP 

revision will result in significant 

visibility improvements. These 

commenters conclude that overall, the 

Oklahoma RH SIP revision is the less 

polluting option compared to the FIP 

currently in place and will result in 

significant visibility improvements and 

tangible economic benefits. One 

commenter believes that these visibility 

improvements are likely understated in 

analyses conducted by EPA and ODEQ, 

even for the first five years. For 

example, the commenter notes that the 

Oklahoma RH SIP revision will result in 

earlier NOX reductions than would have 

occurred under ODEQ’s original SIP or 

EPA’s FIP, and that neither agency 

evaluated the likely reductions in 

visibility impairment as the second unit 

ramps down capacity between 2016 and 

2026. 

Response: We acknowledge these 

commenters’ support and agree that 

there are additional visibility benefits 

associated with the Oklahoma RH SIP 

that were not fully analyzed. 

Comment: We received numerous 

comments that the Oklahoma RH SIP 

revision will result in significant 

reductions in harmful air pollutants. 

One commenter states that the 

Northeastern Power Station’s NOX

emissions, and their contribution to 

ozone, are particularly problematic for 

the region’s efforts to maintain healthy 

air quality levels. This commenter also 

explains that the plant’s SO2 emissions 

threaten to cause exceedances of federal 

air quality standards. This commenter 

notes that both it and EPA Region 6 

have conducted air dispersion modeling 

indicating that the plant’s emissions 

contribute to ambient SO2 levels that 

exceed the 1-hour SO2 National 

Ambient Air Quality Standards 

(NAAQS). The commenter further notes 

that in addition to reduced NOX, SO2

and PM, the Oklahoma RH SIP revision 

will result in reductions of 

approximately 210 pounds of mercury 

emissions per year. The commenter 

observes that the environmental benefits 

of the Oklahoma RH SIP revision are not 

limited to air quality but also include 

reductions in toxic coal ash that 

threaten to contaminate local ground 

water resources and reduced waste 

water discharges containing pollutants. 

Response: We agree with the 

commenter’s conclusions that the 

Oklahoma RH SIP revision will have 

additional environmental benefits 

beyond reducing regional haze. 

Comment: We received one comment 

in support of the proposed action that, 

in addition to promoting clean air and 

reducing regional haze, the Oklahoma 

RH SIP revision will conserve 

Oklahoma’s water resources. The 

commenter notes that EPA has correctly 

recognized that the Oklahoma RH SIP 

revision submittal will reduce water 

usage at the Northeastern Power Station 

and that this incidental benefit is 

important in light of the extreme 

drought conditions facing Oklahoma. 

The commenter states that in response 

to its data requests in proceedings 

before the OCC, AEP/PSO has estimated 

that the increase in water consumption 

at the Northeastern Power Station, if it 

were to add dry scrubbers to both units, 

would be 65 times greater than with a 

retrofit of activated carbon injection 

(ACI) and DSI at just one unit, pursuant 

to the Oklahoma RH SIP revision. 

Furthermore, the commenter notes, 

water currently consumed by the units 

will be released for other uses upon the 

retirement of the units in 2016 and 

2026. 

Response: We agree with the 

commenter that there are non-air quality 

co-benefits associated with the 

Oklahoma RH SIP revision. 

Comment: We received one comment 

in support of the proposed action 

concerning the cost-effectiveness of the 

Oklahoma RH SIP revision. The 

commenter concludes that the 

Oklahoma RH SIP revision is more costeffective than the FIP currently in place 

and less costly overall. The commenter 

cites AEP/PSO’s $942/ton SO2 removed 

cost-effectiveness estimate and notes 

that the Oklahoma RH SIP revision will 

allow AEP/PSO to avoid potentially 

significant compliance costs associated 

with other upcoming regulations, 

including: the Mercury Air Toxics 

Standards (MATS), disposal of coal 

combustion residuals, effluent 

limitations guidelines, a revised 

(lowered) ozone NAAQS, the 1-hour 

primary SO2 NAAQS, Cross-State Air 

Pollution Rule and Clean Air Interstate 

Rule (CSAPR/CAIR), and carbon 

controls for existing power plants under 

the President’s climate change initiative. 

Response: We agree with the 

commenter’s conclusions and note that 

an AEP/PSO representative made 

similar comments in recent testimony 

before the OCC. 

Comment: We received one comment 

in support of the proposed action 

concerning the Oklahoma RH SIP 

revision’s consistency with the State 

Energy Plan. The commenter notes that, 

although not directly relevant to 

ODEQ’s statutory obligations or EPA’s 

review, the Oklahoma RH SIP revision 

is consistent with the State of 

Oklahoma’s energy plan, which 

prioritizes the increased use of 

Oklahoma’s energy resources such as 

wind and natural gas, and protection of 

public health and the environment. The 

commenter notes that Oklahoma is 

currently an exporter of both natural gas 

and wind power, but a major importer 

of coal. 

Response: We thank the commenter 

for the support. 

Comment: We received several 

comments concerning the potential of 

the Oklahoma RH SIP revision submittal 

to hurt or help overall reliability of the 

power grid. Several commenters claim 

that the Oklahoma RH SIP revision 

submittal will result in lower reliability 

of the grid by reducing the percentage 

of power generated by coal combustion 

and increasing reliance on electricity 

generated by natural gas combustion, 

which is subject to more price and 

availability fluctuations. Another 

commenter suggests that the Oklahoma 

RH SIP revision submittal will result in 

improved reliability of the grid. This 

commenter notes that as the amount of 

wind power in Oklahoma and the 

Southeast Power Pool rises, fossil 

generation will be required to ramp 

production up and down more 

frequently, and to shut down for various 

periods of time during high wind 

production. The commenter asserts that 

switching to natural gas and 

implementing energy efficiency and 

demand response programs will result 

in resources better suited than coal-fired 

units to integrate with variable wind 

generation. 

Response: We cannot comment on 

speculative impacts on the reliability of 

electrical grid in Oklahoma that may or 

may not result from this revised BART 

determination for Units 3 and 4 at 

Northeastern Power Station. Issues 

regarding grid reliability are more 

properly addressed by the Oklahoma 

Corporation Commission and the 

electricity providers such as AEP/PSO. 

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In addition to the comments 

submitted directly to EPA, some 

commenters also incorporated by 

reference the following comments from 

Oklahoma Industrial Energy Consumers 

and Quality of Service Coalition that 

were submitted to ODEQ during its 

public comment period on the stateproposed SIP revision, which ended in 

May 2013. These comments and our 

responses follow below: 

Comment: The commenters state that 

ODEQ did not rely on an updated 

emissions inventory in its revised BART 

determination and assert that an 

updated emissions inventory is essential 

to the overall determination of BARTeligible sources in Oklahoma and to the 

determination of sources required to 

install BART, and that ODEQ is required 

to consider and address the anticipated 

net effect on visibility resulting from 

changes projected in point, area, and 

mobile source emissions by 2018. The 

commenters also reference an Arizona 

Department of Environmental Quality 

(ADEQ) regional haze submission, in 

which EPA required ADEQ to provide 

the most recent emissions inventory 

data available. 

Response: The determination of 

subject-to-BART sources was based on 

modeling of maximum actual emissions 

during the baseline period of 2001– 

2003, and EPA has already approved 

ODEQ’s determinations of BARTeligible and subject-to-BART sources. 

An updated emission inventory would 

have no impact on these determinations 

that have already been acted upon. 

Furthermore, the visibility modeling 

performed to determine sources subjectto-BART and to inform BART 

determinations consists of single-source 

modeling utilizing CALPUFF and 

requires only the pre-control and postcontrol emission rates of the source 

being evaluated. This action and the 

Oklahoma RH SIP revision only address 

the requirements for a BART 

determination for a subject-to-BART 

source. We have already approved the 

modeling and emission inventories for 

the first regional haze planning period, 

and these requirements do not have to 

be revisited until the next planning 

period. 

With respect to the Arizona regional 

haze SIP revision referenced by the 

commenters, 40 CFR 51.308(d)(4)(v) 

requires a statewide inventory of 

emissions of pollutants that are 

reasonably anticipated to cause or 

contribute to visibility impairment in 

any mandatory Class I Federal area. This 

inventory must include emissions for a 

baseline year, emissions for the most 

recent year for which data are available, 

and estimates of future projected 

emissions. States must also include in 

their regional haze SIPs a commitment 

to update this inventory periodically. 

Arizona did not satisfy this requirement 

because it failed to include the 2008 

emission inventory when it submitted 

its regional haze SIP in 2011. Oklahoma, 

however, did satisfy this requirement 

because ODEQ included its most recent 

emission inventory as Appendix 4–1 of 

its original regional haze SIP submittal. 

This requirement is unrelated to the 

requirements for a BART determination 

and is not relevant to this action. 

Comment: The commenters state that 

AEP/PSO Northeastern Power Station 

Units 3 and 4 currently provide a 

significant percentage of all energy 

supplied to AEP/PSO customers and 

cite low fuel cost associated with 

operation of those facilities as the 

reason for the high energy contribution 

from Units 3 and 4. The commenters 

express concern that replacement 

energy may be supplied by more 

expensive natural gas-fueled facilities. 

The commenters assert that the need for 

replacement energy is quantifiable, the 

estimated cost of that replacement 

energy is quantifiable, and that ODEQ 

should have factored these costs into its 

determination of a reasonable progress 

goal. 

Response: As ODEQ noted in its 

response to comments, the Oklahoma 

RH SIP revision does not include any 

changes to the Chapter IX of the SIP, 

which concerns reasonable progress 

goals. The SIP revision submittal does, 

however, identify further reasonable 

progress actions that are expected to 

further these goals. This action does not 

address the approvability of Oklahoma’s 

reasonable progress plan which will be 

addressed in a separate action. In 

addition, as we explained in an earlier 

response, ODEQ appropriately 

considered the direct energy impacts of 

the various control options. 

Consideration of the speculative costs of 

replacement energy that may or may not 

be required once Units 3 and 4 retire is 

not required by the BART Guidelines 

and would not be required by the fourfactor analysis required for reasonable 

progress. 

Comment: The commenters imply 

that ODEQ mandated the early 

retirements of Units 3 and 4 and further 

state that ODEQ did not consider costs 

of replacement energy and capacity as 

existing units are retired, including the 

cost of replacement capacity and energy 

arising from the mandated retirement of 

one of the units in 2016, the cost of 

replacement energy arising from the 

capacity restrictions which are imposed 

on the second unit during the period 

2021–2026, and the cost of replacement 

capacity and energy arising from the 

mandated retirement of the second unit 

no later than 2026. 

Response: We concur with ODEQ’s 

response to this comment. ODEQ did 

not, in fact, mandate the early 

retirement or capacity restrictions on 

either unit. Rather, AEP/PSO proposed 

these planned activities in its air quality 

operating permit application submitted 

as a revision to their previous submittal 

under ODEQ’s BART requirements rule. 

See OAC 252:100–8–76 . Subsequently, 

ODEQ entered into an administrative 

order with AEP/PSO to make these 

planned activities enforceable and 

therefore eligible to be relied upon in 

the BART review. Regarding the 

consideration of replacement energy 

costs, see our prior response. 

Comment: Citing the Regional Haze 

Rule and the BART Guidelines, the 

commenters assert that the State cannot 

mandate the early retirement of an 

electric generating unit as part of a 

BART determination. 

Response: We disagree with this 

comment. While it is true that the 

Regional Haze Rule and BART 

Guidelines do not contemplate unit 

retirements as a potential BART option, 

neither rule prohibits states or EPA from 

considering a shutdown as part of a 

BART determination if the strategy is 

proposed by the owner of a BARTeligible source. Moreover, the CAA and 

EPA’s implementing regulations require 

states to consider the remaining useful 

life of a source when determining 

BART. Here, ODEQ did not unilaterally 

mandate the retirement of Units 3 and 

4. Rather, AEP/PSO made a business 

decision regarding the remaining useful 

life of these units and proposed that 

ODEQ include the corresponding 

shutdown dates as a feature of its 

revised BART determination. To allow 

AEP/PSO to take credit for the emission 

reductions associated with its chosen 

retirement dates, ODEQ appropriately 

issued an administrative order that 

made the shutdown dates enforceable 

and included these dates in the 

Oklahoma RH SIP revision. 

Comment: The commenters argue that 

ODEQ did not demonstrate that the 

Oklahoma RH SIP revision meets the 

requirement that alternatives to BART 

must achieve greater reasonable 

progress than would be achieved 

through the installation and operation of 

BART (i.e., DFGD/SDA). The 

commenters note that on page 11 of the 

Revised BART Report (attachment to the 

Oklahoma RH SIP revision), it is 

acknowledged that DFGD/SDA ‘‘would 

provide improvements in visibility 

above that achieved with the DSI 

system’’ but that such improvements 

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would not be perceptible. The 

commenters assert that this conclusion 

clearly indicates that the revised BART 

determination does not meet the greater 

reasonable progress standard with 

regard to visibility improvement. 

Response: We concur with ODEQ’s 

response to this comment. The 

regulation cited by the commenters, 40 

CFR 51.308(e)(2)(i), addresses 

alternative measures states may adopt in 

lieu of requiring sources subject to 

BART to install, operate, and maintain 

BART. The Oklahoma RH SIP revision 

currently under review is not an 

alternative to BART. Rather, it is a 

revision of the State’s BART 

determination for the AEP/PSO 

Northeastern Power Station. Therefore, 

the cited section of the Regional Haze 

Rule is not applicable. As ODEQ 

indicated, it is not necessary that the 

BART determination in the Oklahoma 

RH SIP revision achieve greater 

visibility improvement than the EPA’s 

BART determination in the FIP. Rather, 

the CAA and Regional Haze Rule 

require only that a source-specific BART 

determination be based on a reasoned 

analysis of the five statutory BART 

factors analysis in accordance with the 

procedures in the BART Guidelines. 

Comment: Citing further concerns 

over compliance with greater reasonable 

progress requirements, the commenters 

state that a significant portion of the 

emissions reductions attributed to the 

Oklahoma RH SIP revision could also be 

achieved by switching to ultra-low 

sulfur coal, as required by the original 

Oklahoma RH SIP, and by installing DSI 

control technology to meet requirements 

of the MATS rule. They conclude that 

by including emissions reductions 

arising from DSI and by ignoring 

reductions which could be achieved 

through switching to ultra-low sulfur 

coal, the Oklahoma RH SIP revision 

overstates the emissions reductions that 

are attributable to the revised BART 

determination, which are surplus to 

reductions that would be achievable 

through other control measures or by 

implementing measures to meet CAA 

requirements that existed as of the 

baseline date of the state-proposed SIP 

revision. 

Response: We concur with ODEQ’s 

response to this comment. As ODEQ 

noted in responses to similar comments, 

the Oklahoma RH SIP revision is a 

revision of the State’s BART 

determination for the AEP/PSO 

Northeastern Power Station and is not a 

proposal for an alternative to BART. 

Therefore, the greater reasonable 

progress requirements do not apply. We 

also agree with ODEQ’s conclusion that 

installation of the DSI control 

technology to satisfy the BART 

requirements will provide additional 

confidence that the facility will be able 

to comply with the MATS rule. 

Comment: The commenters claim that 

the Oklahoma RH SIP revision fails to 

meet the requirement at 40 CFR 

51.308(e)(2)(iii) that all necessary 

emission reductions take place during 

the period of the first long-term strategy 

for regional haze, which ends in 2018, 

because the level of SO2 emissions 

under the state-proposed SIP revision is 

expected to be significantly higher than 

emissions under the EPA’s FIP until 

well after 2018. 

Response: We concur with ODEQ’s 

response to this comment. The 

Oklahoma RH SIP revision is a revision 

of the State’s BART determination for 

the AEP/PSO Northeastern Power 

Station and is not a proposal for an 

alternative to BART. Therefore, the 

timing requirements of 40 CFR 

51.308(e)(2)(iii) do not apply. 

Comment: The commenters question 

the statement on page 12 of the Revised 

BART Report that cumulative SO2 and 

NOX emissions from Units 3 and 4 are 

expected to be approximately 36% of 

the emissions level that would result 

from EPA’s FIP. The commenters state 

that the underlying details of the 

analysis supporting the expected SO2

and NOX reductions were not provided 

with the Revised BART Report and that, 

absent back-up documentation, these 

projected emissions reductions are 

unreliable and cannot be used to justify 

the Oklahoma RH SIP revision. 

Response: We concur with ODEQ’s 

response to this comment. ODEQ’s 

calculation of projected emissions 

reductions was not a significant factor 

in its revised BART determination for 

Units 3 and 4. However, the projected 

reductions did provide ODEQ with a 

reasonable comparison of the results of 

the FIP with those of the Oklahoma RH 

SIP revision. As ODEQ explained in its 

response, the capital recovery factor 

used to establish the annualized costs of 

the DFGD/SDA option assumed a 

lifespan of 30 years. Because the FIP 

does not restrict capacity utilization, no 

such restrictions were assumed in this 

calculation. Consequently, the total 

emissions attributable to the FIP were 

calculated by multiplying the SO2 and 

NOX emission rates by full load heat 

input, assuming continuous operation 

for 30 years. In contrast, the total 

emissions associated with the Oklahoma 

RH SIP revision factored in the shorter 

lifespan of the units and reduced 

capacity utilization. 

Comment: The commenters contend 

that the Oklahoma RH SIP revision 

ignores the additional NOX emissions 

that would be produced by gas-fired 

generation or purchased power sources 

that AEP/PSO would have to acquire to 

replace Units 3 and 4 after they are 

retired in 2016 and 2026. Additionally, 

the commenters state that it was 

assumed that, if retrofitted with DFGD/ 

SFA, Units 3 and 4 would operate for 

another 30 years (i.e., until 2046), which 

is inconsistent with AEP/PSO testimony 

to the OCC indicating that the units 

would likely be retired by 2030, only13 

years after the retrofits are implemented. 

The commenters conclude that if the 

emissions reductions associated with 

the Oklahoma RH SIP revision were 

recalculated to reflect a shorter 

remaining useful life of Units 3 and 4, 

and to account for NOX emissions 

produced from sources that replace 

Units 3 and 4, they would be 

significantly reduced. 

Response: We concur with ODEQ’s 

response to this comment. As explained 

in previous responses, consideration of 

speculative replacement energy sources 

is not required by the BART Guidelines. 

We further agree with ODEQ’s 

assessment that any replacement energy 

is unlikely to be procured from a source 

with environmental impacts comparable 

to or greater than those of Units 3 and 

4, which are coal-fired. This is due to 

the fact that BART addresses a very 

specific group of large existing sources 

that were placed in operation before 

many of the current national air quality 

programs were in place. Replacement 

energy would in all likelihood come 

from a newer source subject to the Best 

Available Control Technology (BACT) 

requirements of the Prevention of 

Significant Deterioration (PSD) 

permitting program. 

Furthermore, regarding the life-span 

of Units 3 and 4 under the FIP scenario, 

EPA recognizes that the cost of 

scrubbers is significant and that if a 

source makes such an investment, it 

will likely make other necessary 

investments to extend operation to 

recoup the costs. Thus, consistent with 

our standard practices for conducting 

BART determinations and costeffectiveness analyses we assumed a 30- 

year useful life for the wet scrubber 

systems and responded to comments on 

this issue when we took final action in 

promulgating our FIP. The BART 

guidelines do allow for consideration of 

the remaining useful life of facilities 

when considering the costs of potential 

BART controls. Any claims regarding 

the remaining useful life of a facility or 

a source have to be secured by an 

enforceable requirement. AEP/PSO did 

not claim any such restrictions on the 

operation of Units 3 and 4 of 

Northeastern Power Station when we 

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promulgated our FIP. Consequently, we 

assumed a remaining useful life of 30 

years in our BART analysis. We 

indicated in our responses to comments 

that if AEP/PSO were to decide the 

units in question have a shorter useful 

life such that installing scrubbers is no 

longer cost effective, and would be 

willing to accept an enforceable 

requirement to that effect, a revised 

BART analysis could be submitted by 

the plant(s) in question and our FIP 

could be re-analyzed accordingly. 

Similarly, we indicated that we could 

also review a revised SIP submitted by 

ODEQ. Ultimately, AEP/PSO did seek 

an enforceable commitment to limit the 

remaining useful life of Units 3 and 4 of 

Northeastern Power Station, and ODEQ 

subsequently submitted its RH SIP 

revision that is the subject of this action. 

Comment: The commenters assert that 

the BART analysis supporting the stateproposed SIP revision is based on AEP/ 

PSO long-term planning studies that are 

no longer valid. The commenters note 

that AEP/PSO informed the OCC that it 

will need to revise its Integrated 

Resource Plan (IRP) to reflect previously 

unanticipated increases in near-term 

peak demand due to recent significant 

growth in oil and gas production 

activities on its system. The commenters 

assert that these changes will increase 

replacement energy costs for Units 3 

and 4 and also increase future SO2 and 

NOX emissions, thus significantly 

altering the results of the state’s BART 

analysis. The commenters conclude that 

the state-proposed SIP revision 

rulemaking activities should be 

postponed until the revised AEP/PSO 

IRP is approved by the OCC and then 

the ODEQ can revise its BART 

determination to take these changes into 

account and go back to proposal. 

Response: We concur with ODEQ’s 

response to this comment. As discussed 

in responses to previous comments, 

consideration of replacement energy 

and associated emissions is not required 

by the BART Guidelines. 

Comment: The commenters state that 

the ODEQ’s proposed revised BART 

determination for Units 3 and 4 and its 

proposed SIP revision do not take into 

account potential impacts on AEP/PSO 

customers. Citing EPA’s Federal 

Register notice taking final action 

promulgating the FIP (76 FR 81749) and 

Oklahoma statute 27A O.S. 2–5–107(4), 

the commenters assert that 

consideration of such economic impacts 

is required. 

Response: We concur with ODEQ’s 

response to this comment. As ODEQ 

correctly points out, the Federal 

Register reference citation provided by 

the commenters addresses AEP/PSO’s 

freedom to reduce emissions by 

alternative methods so long as the BART 

emission limit is met: ‘‘[E]mission limits 

may also be met with reconfiguration of 

the units to burn natural gas, the 

companies themselves are free to 

determine whether this option best 

responds to future customer needs and 

preferences, including any potential 

impact on rates.’’ This statement 

remains true within the restrictions 

imposed by the Oklahoma RH SIP 

revision. ODEQ also correctly notes that 

the Oklahoma statute referenced in the 

comment, 27A O.S. § 2–5–107(4), only 

applies to the considerations required 

by the Air Quality Advisory Council in 

deciding whether to recommend a rule 

or rule amendment to the 

Environmental Quality Board. The 

revised BART determination for 

Northeastern Power Station Units 3 and 

4, and the associated Oklahoma RH SIP 

revision, are not rules. Therefore 27A 

O.S. § 2–5–107(4) does not apply. 

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 

Clean Air Act and applicable Federal 

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

52.02(a). Thus, in reviewing SIP 

submissions, EPA’s role is to approve 

state choices, provided that they meet 

the criteria of the Clean Air Act. 

Accordingly, this action merely 

approves state law as meeting Federal 

requirements and does not impose 

additional requirements beyond those 

imposed by state law. For that reason, 

this action: 

• is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

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

• is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

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

• does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

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

• is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

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

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 

• does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

The Congressional Review Act, 5 

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

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

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

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

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

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by May 6, 2014. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this action for 

the purposed 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, 

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Federal Register / Vol. 79, No. 45 / Friday, March 7, 2014 / Rules and Regulations 12953 

Nitrogen dioxide, Particulate matter, 

Regional haze, Reporting and 

recordkeeping requirements, Sulfur 

dioxide, and Visibility. 

Dated: February 7, 2014. 

Ron Curry, 

Regional Administrator, Region 6. 

40 CFR Part 52 is amended as follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart LL—Oklahoma 

■ 2. Amend § 52.1920 by: 

■ a. Amending in paragraph (d) the table 

titled ‘‘EPA Approved Oklahoma 

Source-Specific Requirements’’ by 

adding a new entry at the end of the 

table for ‘‘Units 3 and 4 of the American 

Electric Power/Public Service Company 

of Oklahoma (AEP/PSO) Northeastern 

plant’’. 

■ b. Amending in paragraph (e) the first 

table titled ‘‘EPA Approved 

Nonregulatory Provisions and QuasiRegulatory Measures in the Oklahoma 

SIP’’ by revising the entry for Regional 

haze SIP and adding new entries at the 

end of the table for ‘‘Revision to the 

Regional haze SIP concerning Units 3 

and 4 of the American Electric Power/ 

Public Service Company of Oklahoma 

(AEP/PSO) Northeastern plant’’ and 

‘‘Enforceable commitment for visibility 

concerning Units 3 and 4 of the AEP/

PSO Northeastern plant.’’ 

The revisions and additions read as 

follows: 

§ 52.1920 Identification of plan. 

* * * * * 

(d) * * * 

EPA APPROVED OKLAHOMA SOURCE-SPECIFIC REQUIREMENTS

Name of source Permit No. State submittal 

date EPA approval date Explanation 

*******

Units 3 and 4 of the American 

Electric Power/Public Service 

Company of Oklahoma (AEP/

PSO) Northeastern plant.

PSO Regional Haze Agreement, 

Case No. 10–025 (February 

2010) and Amended Regional 

Haze Agreement, DEQ Case 

No. 10–025 (March 2013).

6/20/2013 3/7/2014 [Insert citation of 

publication].

(e) * * * 

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

Name of SIP provision Applicable geographic or nonattainment area State submittal EPA approval date Explanation 

*******

Regional haze SIP: ......................

(a) Determination of baseline and 

natural visibility conditions.

(b) Coordinating regional haze 

and reasonably attributable visibility impairment.

(c) Monitoring strategy and other 

implementation requirements.

(d) Coordination with States and 

Federal Land Managers.

(e) BART determinations except 

for the following SO2 BART determinations: Units 4 and 5 of 

the Oklahoma Gas and Electric 

(OG&E) Muskogee plant; and 

Units 1 and 2 of the OG&E 

Sooner plant.

Statewide ..................................... 2/17/2010 3/7/2014 [Insert citation of 

publication].

Core requirements of 40 

CFR 51.308. Initial approval 12/28/2011, 76 

FR 81728. 

*******

Revision to the Regional haze 

SIP concerning Units 3 and 4 

of the American Electric Power/

Public Service Company of 

Oklahoma (AEP/PSO) Northeastern plant.

Rogers County ............................. 6/20/2013 3/7/2014 [Insert citation of 

publication].

Revised BART determination. 

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12954 Federal Register / Vol. 79, No. 45 / Friday, March 7, 2014 / Rules and Regulations 

EPA APPROVED NONREGULATORY PROVISIONS AND QUASI-REGULATORY MEASURES IN THE OKLAHOMA SIP—Continued 

Name of SIP provision Applicable geographic or nonattainment area State submittal EPA approval date Explanation 

Enforceable commitment for visibility concerning Units 3 and 4 

of the AEP/PSO Northeastern 

plant.

Rogers County ............................. 6/20/2013 3/7/2014 [Insert citation of 

publication].

If a SO2 emission limit of 

0.3 lb/MMBtu is not met 

the State will obtain 

and/or identify additional 

SO2 reductions within 

Oklahoma to the extent 

necessary to achieve 

the anticipated visibility 

benefits estimated by 

the Central Regional Air 

Planning Association 

(CENRAP). 

* * * * * 

■ 3. Amend § 52.1928 by revising 

paragraph (c) and adding paragraph (d) 

to read as follows: 

§ 52.1928 Visibility protection. 

* * * * * 

(c) The SO2 BART requirements for 

Units 4 and 5 of the Oklahoma Gas and 

Electric (OG&E) Muskogee plant, and 

Units 1 and 2 of the OG&E Sooner plant; 

the deficiencies in the long-term 

strategy for regional haze; and the 

requirement for a plan to contain 

adequate provisions to prohibit 

emissions from interfering with 

measures required in another state to 

protect visibility are satisfied by 

§ 52.1923. 

(d) The revision to the Regional Haze 

plan submitted on June 20, 2013 

concerning Units 3 and 4 of the 

American Electric Power/Public Service 

Company of Oklahoma (AEP/PSO) 

Northeastern plant is approved. For this 

source the plan addresses requirements 

for BART and adequate provisions to 

prohibit emissions from interfering with 

measures required in another state to 

protect visibility. As called for in the 

plan if a SO2 emission limit of 0.3 lb/ 

MMBtu is not met the State will obtain 

and/or identify additional SO2

reductions within Oklahoma to the 

extent necessary to achieve the 

anticipated visibility benefits estimated 

by the Central Regional Air Planning 

Association (CENRAP). 

[FR Doc. 2014–03854 Filed 3–6–14; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2013–0227; FRL–9906–81– 

OAR] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Oklahoma; Regional Haze and 

Interstate Transport Affecting Visibility 

State Implementation Plan Revisions; 

Withdrawal of Federal Implementation 

Plan for American Electric Power/

Public Service Company of Oklahoma 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is taking final action to 

amend a Federal Implementation Plan 

(FIP) for Oklahoma that became 

effective on January 27, 2012, as it 

applies to Units 3 and 4 of the 

Northeastern Power Station in Rogers 

County, Oklahoma, which is operated 

by the American Electric Power/Public 

Service Company of Oklahoma (AEP/

PSO). We are removing the FIP 

requirements for AEP/PSO because, in a 

separate action being published in 

today’s Federal Register, we are taking 

final action to approve revisions to the 

Oklahoma State Implementation Plan 

(SIP), submitted by the Oklahoma 

Department of Environmental Quality 

(ODEQ) to EPA on June 20, 2013, which 

address revised Best Available Retrofit 

Technology (BART) requirements for 

sulfur dioxide (SO2) and oxides of 

nitrogen (NOX) for Units 3 and 4 of 

AEP/PSO’s Northeastern Power Station 

in Rogers County, Oklahoma. The 

revisions (collectively, the ‘‘Oklahoma 

SIP revisions’’) also address the 

requirements of the Clean Air Act (CAA) 

concerning non-interference with 

programs to protect visibility in other 

states. 

DATES: This final rule will be effective 

April 7, 2014. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R06–OAR–2013–0227. All 

documents in the docket are listed in 

the http://www.regulations.gov index. 

Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

or other information the disclosure of 

which is restricted by statute. Certain 

other material, such as copyrighted 

material, will be publicly available only 

in hard copy. Publicly available docket 

materials are available either 

electronically in http://

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. A 15 cent per 

page fee will be charged for making 

photocopies of documents. On the day 

of the visit, please check in at the EPA 

Region 6 reception area on the seventh 

floor at 1445 Ross Avenue, Suite 700, 

Dallas, Texas 75202–2733. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Terry Johnson (6PD–L), Air Planning 

Section, Environmental Protection 

Agency, Region 6, 1445 Ross Avenue 

(6PD–L), Suite 1200, Dallas, TX 75202– 

2733. The telephone number is (214) 

665–2154. Mr. Johnson can also be 

reached via electronic mail at 

johnson.terry@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

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