Part of E.O. 12866 Review: Complete Response to Comments document for "Regional Haze: Revisions to Provisions Governing Alternatives to Source-Specific Best Available Retrofit Technology (BART) Determinations, Limited SIP Disapprovals , and Federal Implementation Plans " ; RIN
2060-AR05 Phil Lorang to: Higgins, Cortney 05/22/2012 11:55 AM

Cc: Martha Keating, Rhea Jones, Tim Smith, Paula VanLare, Phil Lorang

From: Phil Lorang/RTP/USEPA/US

To: "Higgins, Cortney" <Cortney

_ Higgins@omb.eop.gov>

Cc: Martha Keating/RTP/USEPA/US@EPA, Rhea Jones/RTP/USEPA/US@EPA, Tim Smith/RTP/USEPA/US@EPA, Paula VanLare/DC/USEPA/US@EPA, Phil Lorang/RTP/USEPA/US@EPA

Cortney,

The new passages appear in redline.

RIN 2060-AR05 Better-than-BART_RTC_DRAFT_5_22_12 .docx

Phil Lorang, Senior Policy Advisor Air Quality Policy Division, OAQPS, EPA
919-541-5463

Phil Lorang 05/08/2012 02:15:08 PM Courtney, Per your request. You'll see that there...

From: Phil Lorang/RTP/USEPA/US

To: "Higgins, Cortney" <Cortney

_ Higgins@omb.eop.gov>
Cc: Martha Keating/RTP/USEPA/US@EPA, Rhea Jones/RTP/USEPA/US@EPA, Tim Smith/RTP/USEPA/US@EPA, Paula VanLare/DC/USEPA/US@EPA

Date: 05/08/2012 02:15 PM Subject: Part of E.O. 12866 Review: Partial draft of the Response to Comments document for "Regional Haze: Revisions to Provisions Governing Alternatives to Source-Specific Best Available Retrofit Technology (BART) Determinations, Limited SIP Disapprovals, and Federal Implementation Plans" ; RIN 2060-AR05

Cortney,

Per your request. You'll see that there are still some placeholders for EPA responses.

[attachment "RIN 2060-AR05 draft RTC 05 08 2012 to OMB.docx" deleted by Phil Lorang/RTP/USEPA/US]

Phil Lorang, Senior Policy Advisor Air Quality Policy Division, OAQPS, EPA
919-541-5463

## Docket Number EPA-HQ-OAR-2011-0729 Regional Haze: Revisions to Provisions Governing Alternatives to Source-Specific Best Available Retrofit Technology (BART) Determinations, Limited SIP Disapprov als, and Federal Implementation Plans (76 FR 82219; December 30, 2011)



# Response to Comments Document

U.S. Environmental Protection Agency

Office of Air and Radiation May 2012Page 2 of 151 

### Table of Contents



## I. Introduction ....................................................................................... 4

II. General Comments in Support of the Rule .................................... 5

III. Comments in Support of EP A’s Technical Analysis ................... 8

1. Two-Pronged Visibility Improvement Test ............................................................................ 8

2. CAMx Output: Nitrate Concentrations ................................................................................... 9

3. Selection of Affected Class I Areas ...................................................................................... 1 1

4. EPA’s Proposed Determination that Par ticipation in CSAPR for Ozone Season NOx

Satisfies BART ................................................................................................................ ......... 12

5. Modeled Control Scenarios: BART Limits .......................................................................... 13 

## IV. General Comments Opposing EPA’s “Better than BART”

Determination ....................................................................................... 14

V. Comments Questioning the Legal Authority for Trading Program Alternatives to BART .......................................................... 17

VI. Comments Asserting that CSAPR cannot be Considered “Surplus” to Othe r Requirements ...................................................... 19

VII. Comments asserting that th e CAA does not allow EPA to exempt BART-eligible Sources by Relying on CSAPR ..................... 22

VIII. Comments asserting that Sour ce-Specific BART would achieve greater Reasonable P rogress than CSAPR ........................................ 24

IX. Comments on the Relationsh ip between CSAPR, BART, and other Requirements of Re gional Haze SIPs ....................................... 31

XI. Deficiencies in EPA’s Technical Analysis ................................... 45

1. Misinterpretation of th e Two-Pronged Test ...................................................................... 45

2. Averaging Across All Class I Areas ................................................................................. 46

3. Comparison of Earthjustice’s BART+CSAPR Scenario with CSAPR for Minnesota

BART units .................................................................................................................... ........... 50

4. EPA did not Apply SO 2 Controls to Units Smaller than 100 MW ................................... 51

5. Reliance on Presumptive BART ....................................................................................... 53

6. Need for Correction of EPA Assumpti ons for Gerald Gentleman Unit 2 ........................ 58

7. Incorrect Application of EP A’s Presumptive Limits ........................................................ 59

8. Averaging times for BART a nd CSAPR are Different ..................................................... 75Page 3 of 151 9. Errors in EPA models for Nitrate...................................................................................... 77

10. Ozone-only States .......................................................................................................... 82

11. Use of Presumptive Limits for NOx in Arkansas .......................................................... 84

12. Deficiencies for NOx in Othe r NOx-only CSAPR States .............................................. 85

13. Need for Worst-Case Scenarios ..................................................................................... 86

14. Use of IMPROVE Monitor Location to Evaluate Visibility Impacts ............................ 86

15. Appropriateness of Emission Projections that are Lower than CSAPR Budget

Allocations ................................................................................................................... ............. 90

16. Need to Appropriately Account for Reasona bly Attributable Visibility Impairment (RAVI) and Potential “Hot Spots” ............................................................................................ 9 2

17. Timing of Reductions, Possibility for Em issions during Bad Visibility Days............. 101



## XII. Emissions Overestimated in EPA’s Base Case ....................... 103

1. Missing Mandatory Limits Reported to DOE/EIA ............................................................. 111

2. Need for More Current Emi ssions Basis for Comparison .................................................. 113

3. Need for Analysis of CSAPR Rule Changes ...................................................................... 115 

## XIV. EPA’s Proposed Limited State Implementation Plan (SIP) Disapprovals and Proposed Federal Implementation Plan (FIP) in Light of the Stay of CSAPR by the D.C. Circuit ............................. 121

XV. States Should be given th e opportunity to Remedy CAIRDependent SIPs................................................................................... 134

XVI. Comments Specific to Certain States ..................................... 136

1. Florida .................................................................................................................... ............. 136

2. Georgia .................................................................................................................... ............ 137

3. Texas ...................................................................................................................... ............. 139

4. Florida .................................................................................................................... ............. 143

5. Ohio........................................................................................................................ ............. 143


## XVII. Regulatory Lang uage Addressing Reas onable Progress Goals and the Long-Ter m Strategy ............................................................. 144

XVIII. Comments Unrelated to the Proposed Action ..................... 145

XIX. Comments Pertaining to the Transport Rule (Cross-State Air

Pollution Rule CSAPR)) .................................................................... 146

XX. Comments Pertaining to the Proposed Consent Decree ......... 147

XXI. Regional Haze Rule Five-Year Progress Reports .................. 149Page 4 of 151 

### I. Introduction

The purpose of this response to comment (RTC ) document is to respond to public comments submitted to Docket ID No. EPA-HQ-OAR- 2011-0729. All comments and other supporting materials can be found in their entirety at www.regulations.gov

.

On December 30, 2011, the United States Environm ental Protection Agency (the EPA) published a Federal Register notice entitled “Regiona l Haze: Revisions to Provisions Governing Alternatives to Source-Specific Best Availa ble Retrofit Technology (B ART) Determinations, Limited SIP Disapprovals, and Federal Implementa tion Plans” (76 FR 82219). In this notice, the EPA requested comments on the proposed rule by February 13, 2012. The public comment period was subsequently extended to February 28, 2012, as announced in the Federal Register on January 31, 2012 (77 FR 4734).

The action described the EPA’s proposal to revise the Regional Haze Rule to allow the trading programs in the Cross-State Air Pollution Rule (CSAPR) as an alternat ive program to Best Available Retrofit Technology (BAR T). The same action proposed to disapprove the elements of several regional haze State Implementation Plans (S IPs) that relied on the Clean Air Interstate Rule (CAIR) in a similar manner, and to pr omulgate Federal Implementation Plans (FIPs) relying on CSAPR to remedy some of these disapprovals. [Note: in this RTC document the name “Cross-State Air Pollution Rule (CSAPR)” and the name “Transport Rule” are used interchangeably and refer to the same program. 1 ]

The EPA’s proposed revisions to the Regional H aze Rule would allow the trading programs in the CSAPR as an alternative pr ogram to BART. As a result, st ates in the CSAPR region could substitute participation in CSAPR for source-spe cific BART for EGUs in those states. We also proposed a limited disapproval of regional haze SI Ps for several states that relied on CAIR to meet their regional haze goals, but are now subject to CSAPR. We proposed a Federal Implementation Plan (FIP) for each state that bo th relied on CAIR and received a finding of failure to timely submit a regional haze SIP. With respect to Reasonably Attributable Visibility Impairment (RAVI), we proposed to pres erve the current re gulatory language.

1 Federal Implementation Plans to Reduce Interstate Transp ort of Fine Particulate Matter and Ozone, 76 FR 48208 (August 8, 2011).Page 5 of 151 

### II. General Comments in Support of the Rule

Commenter: Michael Olive, Progress Energy

Comment: Progress Energy supports EPA's proposed "bette r-than-BART” determination for CSAPR and EPA's proposed determination th at participation in CSAPR's ozone-season NOx program alone satisfies BART NOx requirements for subject st ates, which include Florida. However, rather than codifying that determination by replaci ng all references to CAIR in 40 CFR Section 51.308(e)(ii)(4) with references to CSAPR, Progr ess Energy urges EPA to codify both its CAIR

and CSAPR "better-than-BART" determinations side-by-side. This would ensure necessary flexibility in light of the uncer tainty surrounding CAIR and CSAPR' s status due to the stay and pending judicial re view of CSAPR.

Commenter: Bruce W. Moore, American Electric Power (AEP)

Comment: AEP is supportive of the methodol ogy and proposed resu lt to consider the incorporation of CSAPR trading program into the state SIPs to be sufficient to meet the requirements of achieving better reasonable progress towa rd natural visibility conditions than source specific BART.

Commenter: Duke Energy

Comment: Duke Energy supports EPA’s proposed determinati on that CSAPR = BART for EGUs subject to

the CSAPR.

Commenter: Stephen Cain, Arkansas Elect ric Cooperative Corporation (AECC)

Comment: AECC supports the decision that compliance with CSAPR is an alternative to source-specific BART requirements. AECC supports EPA’s dete rmination that the CSAPR trading programs achieve greater reasonable progress towards the national goal of achieving natural visibility conditions than source-specific BART for sulfur dioxide and/or nitroge n oxides emissions from power plants in states covered by CSAPR. AE CC believes that EPA’s determination that participation in CSAPR’s trading programs as an alternative to source-specific BART is necessary to prevent redundanc y and possible inconsistency of regulation between CSAPR and the Regional Haze Rule. Further, AECC believes that this regulatory streamlining is required by

Executive Order 13563.

Commenter: Michael Bradley, Clean Energy Group

Comment: The Clean Energy Group apprecia tes the opportunity to comment in support of EPA’s proposal to allow states to consider participation in CS APR as equivalent to, or better than, BART for compliance with the Regional Haze Rule. The Clean Energy Group agrees that participation in the CSAPR program, including proposed budget revi sions at 76 FR 63860, s hould be considered as an alternative to source-by-source BART as long as it promotes e qual or greater emission reductions than a source-by-source application of BART. (The Clean Energy Group recognizes the ongoing litigation before the D.C. Circuit re garding CSAPR, and offers these commentsPage 6 of 151 assuming CSAPR is implemented largely as finaliz ed, including finalization of revision at 76 FR 63860.)

Commenter: Myra C. Reese, South Carolina Department of Health and Environmental Control (DHEC)

Comment: DHEC supports the EPA's tec hnical conclusion that CSAPR achieves greater reasonable progress in achieving the EPA's visibility goals than source-specific BART determinations.

Commenter: Michael L. Krancer, Pennsylvania Department of Environmental Protection (PA DEP)

Comment: The DEP agrees with EPA that the NOx and S 02 Transport Rule trading programs would serve

as a better alternative toward achieving greater reasonable progress goals for visibility in federal Class I areas than would source-specific BART emission limitations for BART-eligible fossil

fuel-fired EGUs located in states covered by the Transport Rule. The DEP supports EPA's proposed amendment to allow states subject to th e Transport Rule to substitute participation in the Transport Rule for source-specific BART fo r S02 or NOx emissions from EGUs in those states. We recognize that adopti on of the "Better-than BART" final rule is dependent on the outcome of the Transport Rule litigation.

Commenter: Paul Bailey, American Coalitio n for Clean Coal Electricity (ACCCE)

Comment: ACCCE appreciates and agrees wi th EPA’s determination that compliance with CSAPR will be deemed to constitute compliance with BART for EGUs. ACCCE supported EPA’s 2005 determination that compliance with CAIR would be deemed to constitute compliance with EGU BART, and the Court of Appeals uph eld that determination. The same policies that justified that 2005 determination support making the same determination for CSAPR. In fact, because CSAPR will result in faster and larger emission reduc tions than CAIR, it makes even more sense for

CSAPR to be considered “better than BART.” And the modeling EPA performed and cited in its proposal fully supports that “be tter than BART” determination.

Commenter: Michael P. Halpin, Florida De partment of Environmental Protection

Comment: Florida is in agreement with EPA that, like CA IR, the judicially-stayed version of CSAPR is

indeed "better-than-BART" with re spect to visibility improvement and that the rule would be a

reasonable BART alternative in Florida with re spect to NOx emissions if it were effective. However, the better approach is for EPA to keep the "CAIR is better-than-BART" rule in place and approve Florida's proposed Regi onal Haze SIP that relies on CAIR.

Commenter: Louis P. Pocalujka, Consumers Energy

Comment: Consumers Energy supports EPA’s CSAPR=BART pr oposal. We believe that this determination will result in reasonable progress towards the national goal of achieving natural visibility conditions in mandatory Class I federal areas. At the same time, it will help EPA, states and affected sources with their planning efforts, reduce regulatory burdens, and reduce the cost ofPage 7 of 151 regulation. Such a policy is consistent with pr evious Court determinations with respect to

CAIR=BART.

Commenter: John D. Kinsman, Edison Electric Institute

Comment: EEI in general supports EPA’s CSAPR=BART propos al. EEI believes EPA’ s technical analysis of emissions impacts and visibility changes suppo rts such an action and th at this determination will help EPA, states and affected sources with their planning efforts, reduce regulatory burdens, and reduce the cost of regulation. Such a policy is consistent with previous court determinations with respect to CAIR=BART.

Commenter: Mark R. Vickery, Texas Commission on Environmental Policy

Comment: Texas supports the EPA’s acknowledgement that emission reductions made by EGUs to comply with other federal requirements such as the CSAPR1 will suffice to meet the obligation to implement BART. However, this support does not mean that Texas agrees that CSAPR is an appropriate or lawful exercise of EPA rulemaking authority.

Commenter: Utility Air Regulatory Group (UARG)

Comment: The proposed rule properly concludes that CSAPR will result in greater emission reductions than would application of source- by-source BART, that CSAPR w ould not result in visibility degradation for the 20 percent best days (or ev en the 20 percent worst days), and that CSAPR would result in greater visibility improvement on average than applica tion of BART on the 20 percent worst days (and the 20 percent best days ). Accordingly, as explained in EPA’s proposed rule, CSAPR plainly satisfies the BART rules’ requirements for approving a BART alternative. The Utility Air Regulatory Group supports EPA’s proposed decision to designate CSAPR as a

BART alternative and believes that EPA’s anal ysis, as described in the proposed rule and supported by EPA’s accompanying documentation pr ovides a factually and legally sound basis

for that decision.

Commenter: Cathy S. Woollums, MidA merican Energy Holdings Company

Comment: MidAmerican agrees that the regional haze rule s allow for the establis hment of alternative programs as meeting BART if the “better-than-BART” test can be satisfied.

Commenter: Lumiant

Comment: Luminant supports the use of regi onal trading programs as alternat ives to installation of sourcespecific best available retrofit technology (“BART”) to meet th e Clean Air Act’s visibility requirements in section 169A, 42 U. S.C. § 7491. Luminant also agrees with EPA’s determination

that CSAPR would be “better than BART” and en courages EPA to finalize that determination.

EPA Response: The EPA acknowledges these comments of genera l support for our proposed action. The EPA thanks the commenters for their support of this rule. With respect to the comment recommendingPage 8 of 151 that the final rule say that both CAIR and CSAPR are better-tha n-BART, see the preamble to the final rule regarding the legal status of CAIR.



### III. Comments in Support of EPA’s Technical Analysis

1. Two

­ Pronged Visibility Improvement Test

Commenter: Utility Air Regulatory Group (UARG)

Comment: EPA notes in its Technical Support Document (“ TSD”) for the proposed rule, the “better-thanBART test does not specify whether each prong should apply on both best and worst days. For purposes of this analysis,...we have considered both the best da ys and the worst days under both the no-degradation prong and the overall-impr ovement prong, without determining that all subsequent better-than-BART demonstrations must do so.” TSD at 41 n.31. UARG believes that resolution of this issue is unnecessary in th e present rulemaking because, based on EPA’s analysis, CSAPR satisfies the bette r-than-BART test regardless of whether (a) the no degradation and overall-improvement prongs apply to both the be st days and the worst days or (b) only the no-degradation prong applies to th e best days and only the overal l-improvement prong applies to the worst days. EPA has consistent ly interpreted and applied its BART rules; however, in a way that makes clear that “reasonable progress goals are defined in terms of improvement on the worst 20% days, and no degrada tion on the 20% best days.” Id. ; see, e.g., EPA, Guidance for Setting Reasonable Progress Goals Under the Regional Haze Program, at page 2-2 (June 1, 2007)(“RPG Guidance”); EPA, Guidance for Tracking Progress Under the Regional Haze Rule, EPA454/B-03-004, at pages 1-5 to 1-7, 1-11 (Sept. 2003) . Thus, the most sensib le interpretation of the provisions setting forth the BART alternativ e test would similarly require demonstration of improvement only for the 20% worst days and re quire only no degradation for the 20% best days.

Commenter: Duke Energy

Comment: EPA’s technical analysis showing that the Tran sport Rule + BART elsewhere passes the twopronged visibility test for determining if an alternative program achie ves greater reasonable progress than source-specific BART, [Duke En ergy] strongly supports EPA’s proposed CSAPR = BART determination. Duke Energy supports and refers EPA to the comments submitted by the Utility Air Regulatory Group in response to EPA’s proposed CSAPR = BART rule.

Commenter: Michael L. Krancer, Pennsylvania Department of Environmental Protection (PA DEP)

Comment: The Regional Haze Rule (RHR), at 40 CPR § 51.308( e )(3), sets out the criteria that must be met in order to determine if an alternative program achieves greater reasonabl e progress than sourcespecific BART. Specifically, the RHR says that dispersion modeling must demonstrate the greater reasonable progress for tw o distinct criteria, referred to as the "two-pronged test" by EPA, in order to assess whether visibility conditi ons at Class I areas would be better with the alternative program in place than they would be without it. The analysis the EPA performed to assess the Transport Rule under these criteria was robust, comprehensive and definitive.Page 9 of 151 The first prong of the assessment must show that the alternative program will not cause a decline in visibility at any affected Class I area. The analysis EPA performed shows that the implementation of the Transport Rule in the st ates covered by the Transport Rule plus the application of BART controls at all BART-eligib le EGUs outside the Transport Rule region does not cause visibility degradation at any of the 60 affected Class I areas in the eastern Transport Rule modeling domain (represented by 46 IMPROVE monitors located in 37 complete states and four partial states), and nor is visibility degrad ation predicted at any Class I areas in the larger national modeling domain used for the Transpor t Rule. Additionally, the few instances of modeled predicted visibility degradation at four western U.S. Class I areas appear to be a modeling artifact due to the nitrate physics in the model for the condi tions found geographically at these areas and we agree with EPA that they ar e not reasonable predicto rs of the true effects on visibility. DEP agrees with EPA's assessment th at the implementation of the Transport Rule's trading programs will not result in visibility degradation at affected Class I areas.

The second prong of the assessment must show that the alternative program will result in improvements in average visibility across all aff ected Class I areas as compared to implementing source-specific BART. DEP agrees with the EP A analysis summarized in Table 3 in the proposed rulemaking notice that the average visib ility improvement results, as measured in deciviews, for implementing the Transport Rule's trading programs would result in greater visibility improvement than would the applicati on of source-specific BART controls nationwide.

EPA Response: The EPA agrees that the Transport Rule satisfi ed the two-pronged test established in the Regional Haze Rule.



### 2. CAMx Output: Nitrate Concentrations

Commenter: Utility Air Regulatory Group (UARG)

Comment: EPA’s proposed rule discusses a modeling anom aly in the Comprehensive Air Quality Model with Extension (“CAMx”), which EPA has used in its assessment of visibility conditions under CSAPR and under nationwide BART. The Agency repor ts that, in the part of its analysis that projected effects in 140 Class I areas across the 48 contiguous st ates (including areas in far western states such as Arizona and Utah), “a mode ling artifact attributable to the nitrate physics in CAMx” led to a plainly implausi ble projection that application of both CSAPR + BARTelsewhere and Nationwide BART would result in very sm all -- in fact, humanly imperceptible -- hypothetical amounts of visibility degradation in a very few fa r-western Class I areas. 76 Fed. Reg. at 82228; see id. at 82227 (reporting “predicted aver age degradations of 0.23, 0.23, and 0.26 deciview[]” on the 20% worst days in three Arizona areas and “a predicted degradation of 0.05 deciview[]” on the 20% best days in one Utah area). EPA properly dismisses this anomalous result and states that “[ a]fter considering the results of the first prong of the visibility test and examining the CAMx output in more deta il ..., we are confident that no degradation in

the four western Class I areas will result from implementation of the Transport Rule trading programs in the eastern U.S.”Page 10 of 151 In addition to this finding, EPA discusses “possi ble modifications to the software used to postprocess CAMx output,” and the Agency seeks comment on an alternate methodology described in Appendix B of the TSD for this rule that, according to EPA, “attempts to address the effects of very low nitrate concentrations on visibility results.” The inform ation EPA has provided in this rulemaking is far too preliminary and limited to support a generally applicable change to a modeling methodology. EPA has not pr ovided adequate information to enable a full evaluation of its proposed potential modeling fix and has failed even to desc ribe the Agency’s rationale for applying this particular possibl e change or, for instance, the implications it could have for modeling outside the re gional haze context ( e.g. , with respect to modeling for particulate matter ambient standards applications). Further, while this potential cha nge may correct an anomaly in CAMx modeling outputs in this particular setting, it is unclear how such a change might affect other applications of CAMx. To support this suggested possible model revision on a general basis, EPA would have to provide the public with substantially more information and provide an adequate opportunity for public notice a nd comment on any proposed modeling change.

Commenter: Susan Schumann, Florida Electric Power Coordinating Group, Inc. (FCG)

Comment: EPA acknowledges problems with the affects of very low nitrate concentrations on its CAMx modeling visibility results a nd seeks comment on its approach to address this issue. See 76 Fed. Reg. 82228; TSD for Demonstration of the Transpor t Rule as a BART Alternative, Appendix B. However, this issue, and EPA's approach to ad dressing it, could have implications beyond this rule and CAMx modeling outputs for visibility. For example, presumably CAMx modeling outputs for particulate matter would be affected by this same problem. Because of the broader potential significance of this pr oblem, any attempt to develop a generally applicable fix should be addressed in a separate rulemaking. As such, EPA should clarify in its final rule that the approach in this case is limited to the instan t circumstances, is not necessarily more broadly applicable, and that the approach on this issu e in any other context will be addressed through separate rulemaking.

EPA Response: The modeling issue referenced in the proposal TSD is an instability issue associated with the ISORROPIA nitrate partitioning mechanism 2 and is only known to occur when very low

modeled nitrate concentrations ar e predicted, especially in areas with very low relative humidity. In this situation, the nitrate c oncentrations can increase by a larg e percentage due to relatively small emissions perturbations. In the cases that were identified in the proposal TSD, the nitrate concentration for a single day at Mazatzal Wilderness and Pine Mountain Wilderness increased from 0.0003 ug/m3 to 0.0196 ug/m3. Similarly, a single day nitrate concentration at Bryce Canyon increased from 0.0047 ug/m3 to 0.015 ug/m3 a nd a single day nitrate concentration at Saguaro National Monument increased from 0.0096 ug/m3 to 0.0497 ug/m3. In all of these cases, the concentration increase was very small, but the percentage increase in concentration was large. We continue to believe that this is an isolated situation th at would occur only under specific circumstances where nitrate concentrations are very low. This is not expected to be a problem when daily average nitr ate concentrations are much la rger. Therefore, we would not

2 See http://www.cmascenter.org/conference/2004/abstracts/Model%20Development/bhave_abstract.pdf and http://www.princeton.edu/~mauzeral/papers/CMAQ_instability%20submission.pdf

.Page 11 of 151 expect this to be an issue in urban areas where nitrate may be relatively large contributor to daily and/or annual average PM 2.5 concentrations.

EPA also examined all cases where the modeled n itrate at Class I areas increased by more than a

factor of 2 between the 2014 base case and the 2014 Transport Rule + BART elsewhere control case. On all of these particular days, the 2014 ba se case nitrate concentration was relatively low (between 0 and 0.75 ug/m3). This shows that larg e percentage nitrate increases do not occur on relatively high modeled nitrate days. And further, on all of the modeled nitrate concentration days that had a large percenta ge increase and concentrations that were < 0.75 ug/m3 but > 0.1 ug/m3, there was a concurrent reduction in daily av erage sulfate of at l east 20%. This indicates that the nitrate increases on these days are not re lated to the ISORROPIA instability issue and are

therefore not relevant to the comment. A nitrat e increase on these days is most likely due to “nitrate replacement”. Nitrate re placement occurs when sulfate reductions free up ammonia gas

that would otherwise have formed ammonium su lfate aerosols. The additional free ammonia

reacts with available nitric acid to form additi onal particulate nitrate. Based on these results, we conclude that the model is gene rally responding to emissions cont rols as would be expected.

It should also be noted that the nitrate increas es are not limited to the Transport Rule + BART

elsewhere case. The Nationwide BART case had a sim ilar number of site-days with factor of 2 or

more increases in nitrate at Class I areas. In the TR+BART elsewhere 36km modeling results, there were 295 site-days with a factor of 2 nitrate increase . In the Nationwide BART 36km modeling results there were 261 site-days with a factor of 2 nitrate increase.

Based on the results of the analysis described ab ove, for the final rule, EPA is continuing to use the model results as calculated in the proposal . We are not employing an y additional adjustments to the modeling results to account for suspect nitr ate changes because we do not believe this to

be an issue that affects numerous Class I areas. It is also evident that this issue affects the

nationwide BART results in addition to the Tran sport Rule + BART elsewhere. Therefore there is no reason to believe that the Transport Rule re sults are biased in any particular way, compared

to the nationwide BART results. We are continuing to support the removal of the single day of

anomalous model results at the 4 Class I areas (documented in Appendix B of the proposal TSD) to show that we do not expect visibility degrad ation at any Class I areas due to the Transport

Rule.



### 3. Selection of Affected Class I Areas

Commenter: Susan Schumann, Florida Electric Power Coordinating Group, Inc. (FCG)

Comment: While recognizing that there is no affect on EP A's ultimate determination, the FCG-EC believes that EPA may properly rely on the 60 Class I areas in the eastern modeling do main as part of its "better-than-BART" evaluation, as opposed to the 140 Class I areas lo cated in the national modeling domain. This approach is supported by EPA's own acknowledgme nt of the limitations of the national modeling domain. See 76 Fed. Reg. 82225; n.19. However, EPA should clarify that this rulemaking does not establish the met hod for determining, or ultimate determination of, which Class I areas are, or may be, "impacted" or "affected" for purposes of evaluating other specific BART alternatives per 40 CFR § 51.308(e )(3). As EPA has recognized, states retainPage 12 of 151 discretion to appropriately make such determinations for specific proposed BART alternatives.

See 71 Fed. Reg. at 60621 ; 70 Fed. Reg. at 39138.

Commenter: Utility Air Regulatory Group (UARG)

Comment: EPA requests comment on whether the affected Class I areas assessed for purposes of the CSAPR =BART Rule should be the 60 Class I areas, th e larger set of 140 Class I areas, or some other set. EPA states in the proposed rule that “given the modeling resu lts ..., the choice between

the 60 Class I areas or the 140 Cl ass I areas does not affect our proposed conclusion that both prongs of the two-prong test are met.” Id . Given the nature of visibility impairment and interstate transport of visibility-impairing pollutants, UARG does not believe that th ere is any appreciable risk that implementation of CSAP R would lead to degradation of visibility conditions in any Class I areas, including far-western areas. EPA ca n, therefore, properly rely on an assessment of visibility impacts in the 60 Class I areas without referring to results in the other 80 areas. In any event, however, because either assessment approach yields the same result, and because both assessment approaches support the conclusion th at CSAPR is a lawful and reasonable BART alternative, EPA may appropriately confirm its determination that CSAPR = BART is a proper BART alternative based on either approach.

UARG notes that the present rulemaking properly does not entail establishment of criteria for determining which Class I areas are or may be “i mpacted” or “affected” Class I areas, within the meaning of 40 C.F.R. § 51.308(e)(3), for purposes of any analysis of possible other BART alternatives, including po ssible BART alternatives that states may assess or propose. As EPA has made clear in final rulemaking actions, states ha ve discretion to make appropriate judgments regarding this matter in the context of specific proposed BART alternatives. 71 Fed. Reg. 0612, 60621 (Oct. 13, 2006); 70 Fed. Reg. at 39138.

EPA Response: The EPA agrees that we could rely on either the 60 or the 140 class I areas to make the determination that the Transport Rule is a BART alternative and that this rulemaking does not necessarily establish that these are the Class I areas that woul d be used in evaluating other

alternatives.



### 4. EPA’s Proposed Determination that Participation in CSAPR for Ozone

Season NOx Satisfies BART

Commenter: Michael Olive, Progress Energy

Comment: Progress Energy supports EPA's proposed "bette r-than-BART” determination for CSAPR and EPA's proposed determination th at participation in CSAPR's ozone-season NOx program alone satisfies BART NOx requirements for subject st ates, which include Florida. However, rather than codifying that determination by replaci ng all references to CAIR in 40 CFR Section 51.308(e)(ii)(4) with references to CSAPR, Progr ess Energy urges EPA to codify both its CAIR

and CSAPR "better-than-BART" determinations side-by-side. This would ensure necessary flexibility in light of the uncer tainty surrounding CAIR and CSAPR' s status due to the stay and pending judicial re view of CSAPR.Page 13 of 151 Commenter: Susan Schumann, Florida Electric Power Coordinating Group, Inc. (FCG)

Comment: The FCG-EC generally supports EPA's determin ation that CSAPR satisfies BART. And, more particularly, the FCG-EC supports EPA's determin ation that participation in CSAPR' s ozoneseason NOx program alone satisfies BART-N Ox requirements for subject states.

EPA Response : EPA acknowledges support for its conclusions for NOx states which are ozone season-only in the Transport Rule. With respect to the comment recommending that the final rule say that both CAIR and CSAPR are better-than-BART, see the pr eamble to the final rule regarding the legal

status of CAIR.



### 5. Modeled Control Scenarios: BART Limits

Commenter: Utility Air Regulatory Group (UARG)

Comment: To evaluate emissions under application of BA RT, EPA modeled the pr esumptive BART limits

for NOx and SO 2 as specified in EPA’s BART Guidelines, “unless an actual emission rate at a given unit with existing controls is lower” than the pres umptive limit. EPA also modeled emissions under application of BART using a number of assumptions that EPA characterizes as - - and that UARG agrees are -- “stringent.” The f act that, even using these very conservative assumptions, EPA’s analysis shows that CSAPR + BART-elsewhere produces greater visibility improvement than nationwide source-by source BA RT, and without degradi ng visibility in any Class I area, provides compelling support for EP A’s proposed determination that CSAPR will lead to greater reasonable progress than BA RT. The assumptions that EPA used, however, should not be viewed as making any determinatio n or establishing any precedent as to what BART should be for any given source or as to wh ether any given source is BART-eligible or is properly subject to BART or a ny other emission limit. EPA’s analysis in this rulemaking is appropriate for the special purpose of conducting a conservative, screening-level analysis that shows that CSAPR produces greate r reasonable progress than BART . That analysis of course cannot take the place of site-specific assessments of BART-eligibility, “cause or contribute,” and

BART emission limit determinations for individual facilities, as required by the Act and EPA’s BART rules, and UARG does not understand EP A’s analysis as suggesting otherwise.

Commenter: Susan Schumann, Florida Electric Power Coordinating Group, Inc. (FCG)

Comment: EPA should clarify that the unit-specific BART limits developed to compare its "Nationwide BART" and "Transport Rule + BART-elsewhe re" scenarios have no import beyond this rulemaking. See 76 Fed. Reg. 82225. And, in particular, EP A should clarify that these BART limits have absolutely no bearing on the ultimate determination of actual or presumptive BART limits at any source.

EPA Response: The EPA agrees that the presumptive limits used for this analysis are not determinant for BART limits for case-by-case BART determinations. Those limits could be more stringent or lessPage 14 of 151 stringent than the presumptive lim its after a technical analysis th at assesses each of the five factors required for a BART determination.



### IV. General Comments Opposing EPA’s “Better than BART”

Determination

Commenter: Mass Comment Campaign spon sored by CREDO Action (1,109 CREDO Action Members in Kentucky)

Comment: I urge you to retain the full, existing protections for restoring clean ai r to national parks and

wilderness areas in the Eastern U.S. As someone who cares deep ly about our national parks and wilderness areas, I ask you to abandon the propo sal to substitute the Cross State Air Pollution Rule (CSAPR) trading program for these longstanding laws.

Commenter: Mass Comment Campaign sponsored by CREDO Action (549 CREDO Action Members in Louisiana)

Comment: I urge you to retain the full, existing protections for restoring clean ai r to national parks and

wilderness areas in the Eastern U.S. As someone who cares deep ly about our national parks and wilderness areas, I ask you to abandon the propo sal to substitute the Cross State Air Pollution Rule (CSAPR) trading program for these longstanding laws.

Commenter: Mass Comment Campaign spon sored by CREDO Action (1,569 CREDO Action Members in Tennessee)

Comment: I urge you to retain the full, existing protections for restoring clean ai r to national parks and

wilderness areas in the Eastern U.S. As someone who cares deep ly about our national parks and wilderness areas, I ask you to abandon the propo sal to substitute the Cross State Air Pollution Rule (CSAPR) trading program for these longstanding laws.

Commenter: Mass Comment Campaign spon sored by CREDO Action (3,217 CREDO Action Members in New Jersey)

Comment: I urge you to retain the full, existing protections for restoring clean ai r to national parks and

wilderness areas in the Eastern U.S. As someone who cares deep ly about our national parks and wilderness areas, I ask you to abandon the propo sal to substitute the Cross State Air Pollution Rule (CSAPR) trading program for these longstanding laws.

Commenter: Mass Comment Campaign spon sored by CREDO Action (2,872 CREDO Action Members in North Carolina)

Comment: I urge you to retain the full, existing protections for restoring clean ai r to national parks and

wilderness areas in the Eastern U.S. As someone who cares deep ly about our national parks and wilderness areas, I ask you to abandon the propo sal to substitute the Cross State Air Pollution Rule (CSAPR) trading program for these longstanding laws.Page 15 of 151 Commenter: Lon Burnam, District 90, Texas House of Representatives

Comment: I urge the EPA to strengthen its proposal for regional haze, Docket # EPA-HQ-OAR-2011-0729. I care about our iconic open spaces and want them protected from haze pollution which both obscures the spectacular views but also makes the air unsafe to breathe. I ask you to abandon the pollution trading program for the Cross-State Ai r Pollution Rule (CSAPR), which was presented

as an alternative to determ ining Best Available Retrofit Technology (BART). This trading program will allow the oldest and dirtiest coal plants, from which our parks and wilderness areas suffer the most, to continue operating without implementing modem pollution controls. EP A's proposal allows pollution trading and would not provide the same level of assurances and protections for our treasured public lands. Both CSAPR and the Regional Haze Rule are necessary; CSAPR should not take the place of the Regional Haze Rule. I specifically request that you abandon the December 23rd action, which allo ws the CSAPR to serv e as an alternative to determining source-by-source BART.

Commenter: Ken Kramer, Lone Star Chapter, Sierra Club

Comment: The Lone Star Chapter writes wi th concerns related to EPA's December 23rd action to allow the Cross-State Air Pollution Rule ("CSAPR") to serv e as an alternative to determining source-bysource Best Available Retrofit Technol ogy ("BART"). The Texas Commission on Environmental Quality (TCEQ) ha s already exempted all of the polluting sources in Texas from complying with the BART program. Therefore, we look to the EPA as the responsible party to implement the Clean Air Act's regional haze rules in Texas. The proposed alternative to BART would allow some of the largest sources of sulfur dioxide poll ution in Texas to escape the requirements of BART and instead purchase emissi ons allowances from states as far away as

Minnesota and South Carolina. These distant emi ssions reductions in other states, rather than Texas, may not protect Big Be nd or Guadalupe Mountains as intended by the Rule. EPA's proposal to permit states to re ly on emissions reductions made under CSAPR to satisfy their obligations under BART to protect Class I air qual ity is flawed and will not adequately achieve the goals of the Rule.

Commenter: Mass Comment Campaign Sponso red by Care2 (There were 5,208 individual commenters who submitted essentially the same comment as follows.)

Comment: I urge you to retain the full, existing protections for restoring clean ai r to national parks and

wilderness areas in the eastern U.S. As someone who cares deeply about our national parks, I ask you to abandon the proposal to substitute the Cross State Air Pollution Rule (CSAPR) trading program for these longstanding laws. Many parks a nd wild lands -- especia lly in the east -- would suffer as a result. Specifically, I support th e continued use of the Regional Haze Rule to clean up the oldest and dirtiest sources of pollution and haze that impact our nation's treasured national parks and wilderness areas. I oppose EPA' s current proposal to exempt park polluting coal plants in the easte rn states from the best, widely ava ilable pollution controls. EPA's proposal allows pollution trading and would not provide the same level of assurances and protections for our treasured public lands. Both CSAPR and the Regional Haze Rule are necessary; CSAPR should not take the place of the Regional Haze Rule.Page 16 of 151 Commenter: Kathryn M. Amirpashaie/Sierra Club

Comment: EPA’s position that CSAPR is “better than BART” is flawed; CSAPR is not better than BART and will not achieve greater reasonable progress to natural visibility conditions in these states than BART. Therefore, CSAPR cannot serve as an alternative to BART under the RHR. Therefore, EPA’s proposed partial FIPs as to Alabama, Mississippi, North Carolina, and South Carolina must be abandoned. Sierra Club does agr ee with EPA’s partial disapproval of Alabama, Mississippi, North Carolina, and South Carolina’ s SIPs due to their reliance on CAIR as the BART-alternative. For many of the same reas ons that CSAPR is an inappropriate BARTalternative, CAIR is also an inappropriate alternative.

EPA Response: The EPA acknowledges the comments of the many i ndividuals who responded to our request for comment. In the preamble to the proposed rule and in the TSD for the proposed rule, the EPA presented the results of a nationa l air quality modeling analysis that support the determination that the regional trading programs of CSAPR will result in better reasonable progress towards improving visibility at Class I areas than sour ce-specific BART. The EPA established that the two-pronged test for determining the adequacy of a BART alternative program, as defined by the Regional Haze Rule, was met.

Commenter: National Parks Conservation Association on behalf of numerous organizations

Comment: Cleaning up the Haze: Protecting Pe ople and America’s Treasured Places Synopsis: This report calls on the EPA to drop its proposed BART rule in order to fully protect iconic and natural places from unh ealthy and unsightly air. Accord ing to this report, the EPA’s proposed rule would allow nearly 150 coal plant units to avoid installing widely available and cost effective pollution controls and would exempt these plants from having to achieve emission rates routinely required at coal plants nationwide.

The report recommends that EPA:

1. Ensure that clean-up plans for pol luters will result in air qualit y improvements at Class I areas. CSAPR does not require that the best available retrofit technol ogy is installed or operated at coal-fired power plants that impair air quality at national parks and wilderness areas. EPA must make certain that adequate emission reductions occur at pollution sources that actually affect Class I areas in order to fully meet the stated requirements and goals of the BART program.

2. Accurately account for the emission reduc tions possible under the BART program. In assuming that CSAPR would achieve better results than BART, EPA significantly underestimates the amount of pollution that w ould actually be reduced through the installation and operation of the best availabl e retrofit technology. EPA must be consistent in its evaluation and analyze every power plant impa iring air quality at a Class I ar ea for adequate best available retrofit technology controls. EPA must then revisit its conclusi on that CSAPR is better than

BART across the eastern half of the U.S in light of such a revised analysis.Page 17 of 151 The report lists 12 coal-fired power plants in the CSAPR region that the commenters maintain will “escape urgently needed pollution control requirements” if EPA does not abandon its proposal. Details of these examples may be found in Docket No. EPA-HQ-OAR-2011-0729-

0237.

EPA Response: In the preamble to the proposed ru le and in the TSD for the propos ed rule, the EPA presented the results of a national air quality mo deling analysis that support the determination that the regional trading programs of CSAPR will result in better reasonable progress towards improving visibility at Class I areas than source-sp ecific BART. The EPA established that the two-pronged test for determining the adequacy of a BART alternativ e program, as defined by the regional haze rule, was met. The trading programs of CSAPR apply to all electric generating units (EGUs) in a CSAPR state compared to only a limited number of sources that may be BART-subject. The EPA’s analysis demonstrated that emission reduc tions from a much larg er number of EGUs located across a large regional ar ea resulted in greater visibilit y improvement at the affected

Class I areas. The commenters maintain that EP A underestimated the emission reductions that would be achieved at BART-eligible EGUs by relying on what the commenter maintains are EPA’s too-high presumptive limits for BART. Th e EPA believes that assuming application of presumptive limits contained in EPA’s BART Gu idelines (40 CFR part 51 Appendix Y) over a broad region is a reasonable and appropriate method for estimating the emissions reductions from application of BART. The EP A disagrees that it is necessa ry to conduct an EGU-specific analysis for each BART-eligible EGU. The commenter’s assertion that BART is represented by the application of selective catalytic reduction (SCR) for NO x control and scrubbers for SO 2 control ignores the definition of BART. The determination of a BART emission limit considers existing controls on the unit, the cost of new cont rols, the remaining useful life of the unit, the visibility improvement reasonably expected fr om the controls, and other nonair and energy considerations. Thus it is speculative to assu me that every BART-eligible EGU would be required to apply additional contro ls or to assume the highest le vel of emission reduction due to

those controls.

The



### V. Comments Questioning the Legal Authority for Trading Program

Alternatives to BART

Commenter: Earthjustice on behalf of a number of organizations

Comment: There is no statutory authority for EPA to aut horize reliance on CSAPR in place of BART as it has proposed to do here. EPA relies on two court d ecisions as authority for its proposal: Center for Energy & Economic Dev. v. EPA, 398 F.3d 653 (D.C. Cir. 2005) (CEED ) and Utility Air Regulatory Group v. EPA, 471 F.3d 1333, 1340 (D.C. Cir. 2006) (UARG). However, the force of such holdings has been undermined by subseque nt D.C. Circuit decisions. In North Carolina v. EPA, 531 F.3d 896, 906-08 (D.C. Cir. 2008), the C ourt invalidated the CA IR trading program

because it failed to conform w ith the underlying statutory mandate to measure each state’s significant contribution to speci fic downwind nonattainment areas and eliminate them in an isolated state-by-state manner. Id. at 907. Likewise here, EPA‘s BART substitution proposal failsPage 18 of 151 to conform with the Act‘s express mandate that EPA rules require haze plans to include BART at

each BART eligible source for the purpose of elim inating or reducing visibility impairment caused or contributed to by that source in any Class I area. See CAA § 169A(b)(2)(A), 42 U.S.C. § 7491(b)(2)(A). In NRDC v. EPA, 571 F.3d 1245, 1255-58 (D.C. Cir. 2009), the Court rejected an EPA attempt to substitute an emissions tr ading program for the Clean Air Act‘s express mandate for reasonably available control tec hnology (RACT) at exis ting sources in ozone

nonattainment areas. EPA claimed its substitu tion should be allowe d because the trading program was estimated to achieve a beyond-RA CT degree of control regionally, and would better serve statutory purposes, but the Court said the region-wi de approach did not meet the statutory requirement that the reductions be from sources in the nonattainment area. Id. at 1256. Likewise, EPA‘s region-wide approach here flouts the statutory mandate that “each BART eligible source causing or contributing to visibility impairment in” any Class I area must install BART to prevent or reduce such impairment.

More broadly, other decisions post-dating CEED and UARG have emphasized that the terms

each and any must be given their literal, expansive meanings when used in the Act. See Massachusetts v. EPA, 549 U.S. 497, 528-29 (2007) (re peated use of the word ‘any’ in Clean Air Act provision demonstrated that statutory language was sweeping in its protective reach); Sierra Club v. EPA, 536 F.3d 673, 678 (D.C. Cir. 2008) (If Congress meant that potentially thousands of permits could be issued without adequate monitoring requirements, then it would not have said [e]ach permit ... shall set forth ... monitoring ... requirements to assure compliance with the permit terms and conditions. There can be no do ubt about the plain meaning of this phrase. ‘Each’ means [e]very one of a group considered i ndividually. (internal quot ations and citations omitted)); New York v. EPA, 443 F.3d 880, 886 (D.C . Cir. 2006) (holding that there is “no reason why ‘any‘ should not mean ‘any‘); New Jersey v. EPA, 517 F.3d 574, 582 (D.C. Cir. 2008) (affirming that “[i]n the context of the C AA, the word ‘any’ has an expansive meaning) (internal quotations omitted)); NRDC v. EPA, 489 F.3d 1250, 1257-58 (D.C. Cir. 2007) ([a]pplying the usual meaning of ‘any’ under Chevron step one).

For all the foregoing reasons, EPA’ s proposal to substitute CSAPR for BART violates the plain language of the Act. If CEED and UARG could be read as authorizing such substitution, those

decisions would be in conflict with the plain language of the Act, and therefore in error. The Act

does not allow EPA‘s rules to waive the statut ory mandate for BART at “each” BART-eligible

source based on a claim that other control met hods will achieve greate r reasonable progress on average. See also CAA § 169A(a)(4), 42 U.S.C. § 7491(a)(4) (requiring EPA‘s haze rules to assure (A) reasonable progress ...., and (B) compliance with the requirements of this section, requirements that include BART as a se parate mandate (emphasis added)).

[ FN 17] The CEED opinion erroneously st ates that the addition of § 169B in 1990 “clarified that the focus of the Act was to achieve “actual progress an improvement in visibility,” 42 U.S.C. § 7492(b), not to anoint BART the mandatory vehicle of choice. 398 F.3d at 660. This assertion reads far more into § 169B(b) than the language of that subsection can possibly bear, as the provision merely di rects EPA to assess and report to Congress the actual progress and improvement in visibility in Class I areas. It does not amend or limit the Act‘s pre-existing BART mandate, much less suggest that progress goals can suppl ant that mandate. Indeed, elsewhere in § 169B, Congress reinforced the BART mandate by directing EPA to “carry out the Administrator‘s regulatory responsibilities under section 7491 of this title,” the section that includes the BART mandate. 42 U.S.C. § 7492(e)(1). Likewise, there is nothing in § 169B‘s authorization of visibility transport re gions and commissions to suggest authority to waive the BART mandate, as CEED erroneously implies.Page 19 of 151 EPA Response: Please see section II.B.1 of the pr eamble of the final rule for the EPA’s response and discussion of the legal authority for an alternative trading program.



### VI. Comments Asserting that CSAPR cannot be Considered “Surplus” to
Other Requirements

Commenter: Earthjustice on behalf of a number of organizations

Comment: Governing regulations require th at BART alternatives provide emission reductions surplus to those resulting from programs implemented to meet other requirements of the Clean Air Act. See 40 C.F.R. § 51.308(e)(2)(iv). CSAPR, as a program implemented to meet § 110 of the Clean Air Act, cannot satisfy this requirement.

EPA Cannot Demonstrate That CSAPR Yiel ds Surplus Emissions Reductions EPA’s reliance on CSAPR also fails at the outset because CSAPR cannot supply emission reductions for purposes of the regional haze progra m that are additive to what other programs of the Clean Air Act already require. Under 40 C.F.R. § 51.308(e)(2)(iv), a state that seeks to use an alternative program in lieu of BART must demonstrate not only that the alternative achieves greater reasonable progress toward reaching natural visibility conditi ons at Class I areas but also

that the emission reductions resu lting from the emissions tradi ng program or other alternative measure will be surplus to those reductions resulting from measures adopted to meet requirements of the CAA as of the baseline date of the SIP. EPA cannot make this showing when adopting CSAPR FIPs or promulgating a regulation allowing states to adopt SIPs that rely on CSAPR in lieu of BART. CSAPR was adopted prio r to EPA’s issuance of this better-than-BART proposal, and it is slated to ach ieve emissions reductions in 2012, well in advance of the 2014 baseline date for the proposed FIPs and in advanc e of any SIPs that may seek to rely on CSAPR

as an alternative to BA RT. Moreover, under Sections 110(a)(1) and (a)(2)(D)(i) of the Act, states were required to adopt SIPs by the year 2000 - 3 years after promulgation of the 1997 ozone and PM NAAQS - to prohibit emissions from within the state from contributing significantly to nonattainment or interference with maintenance by any other state with respect to such NAAQS. Thus, any emission reductions that were required to meet that mandate cannot be credited toward the calculation of greater reasonable progress attributed to CSAPR. Because CSAPR cannot possibly satisfy the surplus emissions require ment of § 51.308(e)(2)(iv), EPA‘s proposal is necessarily inconsistent with its own governing regulations.

Commenter: Kristin A. Henry, Sierra Club

Comment: Governing regulations require th at BART alternatives provide emission reductions surplus to those resulting from programs implemented to meet other requirements of the Clean Air Act. See 40 C.F.R. § 51.308(e)(2)(iv). It is not clear that CSAPR in Indiana can satisfy this requirement.

EPA’s regional haze regulations require that “the emission reductions resulting from the emissions trading program or other alternative measure [employed in place of BART] will be surplus to those reductions resul ting from measures adopted to me et requirements of the CAA asPage 20 of 151 of the baseline date of the SIP.” 40 C.F.R. 51.308(e )(2)(iv). That is not the case with CSAPR. Most of the reductions required by CSAPR are also required by th e Clean Air Act’s New Source Review program, Title V program, and various nonattainment and maintenance SIPs. Namely, under § 110(a)(1) & (a)(2)(D)(i) of the CAA, states were requir ed to adopt SIPs by the year 2000—3 years after promulgation of the 1997 oz one and PM NAAQS—to prohibit emissions from within the state from contributing signifi cantly to nonattainment or interference with maintenance by any other state with respect to such NAAQS. CSAPR was promulgated to meet this requirement. Therefore, CSAPR, as a progr am adopted prior to EPA’s issuance of this better-than-BART proposal and implemented to meet § 110 of the Clean Air Act, can never satisfy this surplus requirement.

As a result, EPA’s analysis precludes a fair co mparison between application of BART and sole reliance on CSAPR instead. In comparing the visi bility impacts attributable to CSAPR and BART respectively, EPA modeled an artificial BART scenario in which nationwide BART would apply without CSAPR. CS APR is independently required by Section 110 of the Clean Air Act and will apply in any case (assuming it withst ands legal challenge), it is incumbent on EPA

to evaluate what BART would add to CSAPR in the way of em ission reductions that could contribute to reasonable progre ss. Indeed, emission reduction s resulting from CSAPR were

meant to be “in addition to” the reductions from application of BART under the Haze Rule, not

“rather than”—which is what EPA’s CSAPR “b etter-than-BART” effectively makes them. EPA’s proposal essentially nullif ies the Haze Rule in those st ates to which CSAPR applies—

instead of reductions in those states from both CSAPR and BART, they only have CSAPR reductions. In all likelihood, the improvement nece ssary to achieve the C AA’s visibility goal of preventing any future, and remedying any existing, visibility impairment in Class I areas will require BART controls, plus controls on additi onal EGUs such as required under CSAPR (or CAIR).

Ultimately, EPA has improperly linked CSAPR to the Haze Rule by determining that certain CSAPR program provisions can in effect subst itute for related but different visibility requirements under the Haze Rule (e.g., BART require ments). This is inappropriate, especially considering the purpose and scope of these tw o rules. Namely, CSAPR focuses on regional reductions in pollutants to reduce health risk s, whereas the Haze Rule focuses on localized reduction in pollutants to reduce visibility impairments in sp ecific areas. Compare 76 Fed. Reg. 48208 (Aug. 8, 2011), with 42 U.S.C. § 7491(a)(1). As a result, the reductions mandated by CSAPR —which EPA now proposes to adopt in or der to achieve the go al of the Haze Rule— were made with regional reducti ons of pollutants in mind, not Cl ass I area-specific reductions.

Commenter: Earthjustice on behalf of a number of organizations

Comment: EPA’s Analysis Fails to Compare the Proper BART Scenario to the Pr oposed Alternative EPA’s analysis suffers from an overarching flaw: it proceeds as if CSAPR were developed only to serve as a BART alternative, ignoring the fact that CSAPR programs will be implemented regardless of BART. Thus, EPA compared a “Nationwide BART ” scenario that does not account for any emissions reductions due to CSAPR, to the “Transport Rule + BART elsewhere “scenario, estimating

the emissions in each scenario based on a base case that likewise does not account for CSAPR. Because CSAPR is mandated under § 110 of the Clean Air Act, EPA’s “Nationwide BART ” scenarioPage 21 of 151 is pure fiction; CSAPR and BART will operate simultaneously unless EPA approves this proposal to rely solely on CSAPR.

By failing to take account of any emission redu ctions from CSAPR in the “Nationwide BART” scenario, EPA arbitrarily and unlawfully rewa rds the “Transport Rule + BART-elsewhere ” scenario for accomplishing emission reductions asso ciated with the status quo, while punishing

“Nationwide BART ” scenario for failure to keep up w ith the status quo.[FN 28] Where the

alternative to BART is itself mandated to meet the requirements of the Clean Air Act, the pertinent question under the reasonable progress te st must be whether the mandated program will achieve more than what is necessary to fulfill it s own obligations such th at it can achieve better visibility gains in Class I ar eas than BART. Isolating visibi lity improvements under CSAPR and making a comparison to improvements from nationw ide BART in the absence of CSAPR is an artificial enterprise that ignor es the requirements of Clean Air Act § 110. EPA cannot read either

Section 110 or Section 169A out of the statute but must give all statutory provision s their effect.

See TRW , 534 U.S. at 31 (explaining that it is “a cardinal principle of statutory construction ” that “a statute ought, upon the whole, to be so constr ued that, if it can be prevented, no clause, sentence, or word shall be s uperfluous, void, or insignificant ” ) (quoting Duncan v. Walker , 533 U.S. 167 (2001); see also United States v. Menasche , 348 U.S. at 538–39 (“It is our duty

 ̳ to give effect, if possible, to every clause and word of a statute.”) (quoting Montclair , 107 U.S. at 152 (1883).

Thus, to correct for the fact that CSAPR is independently required, EPA must compare a CSPAR-only scenario to a scenario where BART applies in concert with CSAPR as would be the case if EPA abided by the mandate of both programs. This comparison would allow EPA to determine whether BART would achieve aggregate visibility benefits above and beyond what CSAPR will achieve, or whether the emissions re ductions from CSPAR by itself overwhelm any potential incremental benefit from BART.

The better than BART rule is focused on whet her CSAPR can substitute for BART in the CSAPR region, thus BART will always apply in the non-CSAPR region. Given this reality,

emissions reductions from BART in the non-CSAP R states can be placed in the base case. However, the analysis in these comments simply corrects for the primary flaw, ensuring that

“Nationwide BART” is never evalua ted in the absence of CSAPR.

Looking at the emission reductions achieved from applying BART at the sources EPA assumed were subject to BART per the “Nationwide BART ” scenario and from CSAPR at the sources EPA assumed were not subject to BART per the “Transport Rule + BART-elsewhere ” scenario, it is highly unlikely that EPA could show that CSAPR provides advantages over CSAPR combined with BART. As the summary table be low demonstrates, the correct BART + CSAPR

scenario would further reduce NOx emissions by 80,886 tons per year compared to EPA’s “Transport Rule + BART-elsewhere ” scenario, while reducing SO 2 emissions by an additional 625,913 tons per year.Page 22 of 151 [FN 28] Because CSAPR was scheduled to come online at the beginning of 2012, CSAPR reductions are part of the status quo and could have been included in the 2014 ba se case. However, adding CSAPR to the 2014 base case could make it difficult to determine whether the “Transport Rule + BART-elsewhere” scenario will cause a decline in visibility over the 2014 base case. Using an artificial base case that does not include CSAPR reductions is thus appropriate to isolate what CSAPR and BART in the CS APR region each incrementally achieve in the way of visibility improvements. Cf. USFS Comments at 14 (“EPA, by analyz ing the BART-alternative emissions as the same emission year relative to the modeled future baseline conditions in the absence of any BART or alternative program control requirements, . . . seemingly creat es a guaranteed “no degradation” test.”).

EPA Response: Please see section II.B.1 of the preamble for EPA’ s response to the comments that the Transport Rule emission reductions are not “surplus” as defined by the Regional Haze Rule.



### VII. Comments asserting that the CAA does not allow EPA to exempt

BART

­ eligible Sources by Relying on CSAPR

Commenter: Earthjustice/Texas

Comment: The Text of the Clean Air Act Precludes EPA from Relying on CSAPR as a BART-Alternative in

the Texas Partial FIP As detailed more fully in Earthjustice’s ac companying comment letter on the overarching flaws of EPA’s proposed rule, EPA cannot rely on CS APR as an alternative to BART. The plain language of the Clean Air Act states that regi onal haze plans must “contain such emission limits, schedules of compliance and other measures as may be necessary to make reasonable progress toward meeting the national [visibility] goal . . . including [BART controls on sources subject to BART].” 42 U.S.C. § 7491(b)(2)(A). The Act exp licitly states that thre e conditions must be satisfied before a BART-eligible EGU may be ex empted from BART: (1) EPA must determine, after notice and opportunity fo r public hearing, that the EGU does not “by itself or in

combination with other sources” cause or contribu te to significant visibility impairment at a Class I area; (2) if the power plant has a design capacity of 750 megawatts or greater, the owner or operator must demonstrate to EPA that the plant is located at such a di stance from all Class I areas that it does not “by itself or in combina tion with other sources” emit pollution that may reasonably be anticipated to cause or contribute to signi ficant visibility impairment at a Class IPage 23 of 151 area; and (3) the affected Federal Land Mana gers must concur with the BART exemption. Id. § 7491(c).

CSAPR does not meet the statutory criteria for a BART exemption. EPA has not shown that, with CSAPR, no Texas BART-eligible EGU, by itsel f or in combination w ith other sources, will

cause or contribute to visibil ity impairment at Big Bend, Guadal upe Mountains, or Class I areas in other states. Instead, as discussed below, mo deling shows that BART-eligible EGUs in Texas likely will cause visibility impairment at multiple Class I areas even under CSAPR. See infra at 18–22. Consequently, EPA could not possibl y make the requisite showing to exempt BART-eligible EGUs in Texas from BART requirements. Moreover, the Federal Land Managers at Big Bend, Guadalupe Mountains, and other Class I ar eas have not concurred with EPA’s proposed BART exemption for Texas’s BA RT-eligible EGUs. To the contrary, the only FLM responses to the national rulemaking have been critiques about the program’s shortcomings, including its inability to prot ect Class I areas against pollution hotspots. See infra at 18–19 (discussing National Park Service comments). As a result, there is no statutory authority for EPA to exempt BART-eligible EGUs in Texas from BART by relying on CSAPR. EPA’s interpretation of the statute, in which it adop ted CSAPR as a BART-alternative in a partial FIP for Texas, cannot be reconciled with Congress sp ecifying very narrow standards for exempting a single source from BART.

Commenter: Earthjustice on behalf of a number of organizations

Comment: For the reasons explained below, EPA cannot exempt states from evaluating and applying source-specific BART consistent with the Clean Air Act. The plain language of the Act requires installation and operation of BART to achieve reasonable pr ogress toward meeting the national goal of eliminating visibility impairment at Class I areas. See Clean Air Act (CAA) § 169A(b)(2)(A), 42 U.S.C. § 7491(b)(2)(A).

The Plain Language of the Clean Air Act Preclud es Reliance on CSAPR to Exempt Sources from

BART EPA cannot consistent with the pl ain language of the Clean Air Ac t authorize states to rely on CSAPR to opt out of BART. Nor can EPA satisfy its FIP obligations (as proposed at 76 Fed. Reg. at 82221) by promulgating a FIP that substi tutes CSAPR for BART in each state where a haze FIP is required. Under the Clean Air Act, BART is a mandatory measure that must be implemented to achieve reasonable progress toward restoration of natura l visibility conditions. Section 169A(b)(2)(A) expressly re quires states to adopt SIPs that “contain such emission limits, schedules of compliance and other measures as may be necessary to make reasonable progress toward meeting the national goal . . . including installation and ope ration of BART at each BART-eligible source that emits any air pollutant which may reasonably be anticipated to cause

or contribute to any impairment of visibility in any Class I area.” See CAA § 169A(b)(2)(A), 42 U.S.C. § 7491(b)(2)(A) (emphasis added). The only permissible exemption from BART is expressly set forth in § 169A(c). See CAA § 169A(c), 42 U.S.C. § 7491(c). Under § 169A(c), a source can be exempt from BART only if EPA, by rule promulgated with sufficient notice and opportunity for public comment, determines that the source does not either by itself or in combination with other sources “emit any air po llutant which may reasonably be anticipated to cause or contribute to a significant impairment of visibility in any mandatory class I federal area.Page 24 of 151 CAA § 169A(c)(1), 42 U.S.C. § 7491(c)(1). Furt her, EPA cannot exempt a fossil-fuel fired power plant with a design capacity of 750 megawa tts or more, unless the owner or operator of the plant can demonstrate that th e power plant is located far e nough away from the class I areas

and does not or will not by itself or in conjunction with othe r facilities cause or contribute to visibility impairment. CAA § 169A(c)(2), 42 U. S.C. § 7491(c)(2). Finally, the appropriate Federal Land Manager or Managers must agree with the exemption before it can go into effect. CAA § 169A(c)(3), 42 U.S.C. § 7491(c)(3).

Thus, EPA‘s authority to exempt sources from BART is very narrowly defined. Nowhere in Section 169A did Congress contemplate or sancti on alternative programs th at would operate in lieu of BART. “Where Congress explicitly en umerates certain exceptions to a general prohibition; additional exceptions ar e not to be implied, in the absence of evidence of a contrary legislative intent.” Andrus v. Glover Constr. Co., 446 U. S. 608, 616–17 (1980); see also TRW Inc. v. Andrews, 534 U.S. 19, 28 (2001) (quoting same). This follows from the - cardinal principle of statutory construction that - a statute ought, upon the whol e, to be so construed that, if it can be prevented, no clause, sentence, or wo rd shall be superfluous, void, or insignificant. TRW, 534 U.S. at 31. Neither EPA nor the Courts can read the Clean Air Act in such a way that would render an - express exception . . . in significant, if not wholly superfluous. Duncan v. Walker, 533 U.S. 167, 174 (2001).

Commenter: National Parks Conservation As sociation on behalf of a number of organizations

Comment: As we explain in the national comments, the re gulatory language establ ishing BART alternative programs is an impermissible construct of th e Clean Air Act’s BART exemption. But for the sake of argument, if the regulations were le gitimate, EPA’s proposed partial FIP for Georgia relying on CSAPR to absolve BART sources from adequate BART limits does not meet the regulatory criteria for an alternative BART program. The Regional Haze Rule states that a BART-alternative program “must achieve greater reasonable progress than would be achieved through the installation and operation of BART at all sources subject to BART in the State and covered by the alternative program.” 40 C.F.R. § 51.308(e)(2). In order for a trading program such as CSAPR to be “better than BART,” dispersion modeling must demonstrate that (1) visibility under the BART-alter native would not declin e in any Class I area, and (2) the BARTalternative would result in overa ll visibility improvement “by co mparing the average differences

between BART and the alternative ov er all affected Class I areas.” Id. § 51.308(e)(3).

EPA Response: Please see section II.B.1 of the preamble for EPA’ s response to the comments that the provisions governing exemptions to BART apply to our determination that the Transport Rule will make greater reasonable progress than BART.



### VIII. Comments asserting that Source

­ Specific BART would achieve

greater Reasonable Progress than CSAPR

Commenter: William O’Sullivan, New J ersey Division of Air Quality

Comment:Page 25 of 151 The State of New Jersey does not support the pr oposed rule. Based on the cumulative assessment of all BART-eligible sources in the Mid-Atlantic Northeas t Visibility Union (MANE-VU) region, all member states with BART -eligible f acilities contribute to visi bility impairment at Class I areas. As a member state, the State of New Jersey followed the subsequent MANE-VU Board decision that any source that meets the BART eligibility requirements should be subject to a top-down BART determination. The USEPA a pproved the State of New Jersey's Regional Haze State Implementation Plan revision, includi ng BART determinations, reasonable progress goals, and sulfur in fuels rule, effective Febr uary 2, 2012. Coal-fired el ectric generating units (EGUs) that do not have add-on air pollution c ontrols are very high emitters of NOx and SO 2 which contribute to the formation of regional ha ze, and BART-eligible EGUs should be subject to BART. At a minimum, any coal-fired EGU gr eater than 25 megawatt (MW) in size should be required to meet the presumptive limits outlined in the as outlined in Appendix Y to Part 51- Guidelines for BART Determinations under the Regional Haze Rule.

To allow CSAPR as an alternative to BART with in the eastern half of the United States would diminish the potential for grea ter reductions of visibility-i mpairing emissions from upwind states, and would impair NJDEP's efforts to pr otect and restore visibility at the Brigantine Wilderness Area in the Edwin B. Forsythe Nati onal Wildlife Refuge. I urge the USEPA to reconsider substituting CSAPR for CAIR as an alternative to source-specific BART

determination for EGUs.

Commenter: National Parks Conservat ion Association and Earthjustice

Comment: EPA has not shown that, with CSAPR, each Flor ida BART-eligible EGU will (1) not cause or contribute to visibility impairme nt, (2) demonstrate that visibi lity would not decline and (3)

demonstrate that the CSAPR would result in ove rall visibility improve ment at Chassahowitzka

and St. Marks wilderness areas a nd Everglades National Park, or Class I areas in other states. Consequently, EPA could not possibly make the requisite showing to exempt BART-eligible EGUs in Florida from BART requirements. Moreover, the Federal Land Managers at

Chassahowitzka and St. Marks wilderness areas a nd Everglades National Pa rk, and other Class I areas have not expressly concurred with EPA’ s proposed BART exemption for Florida EGUs. To the contrary the only FLM responses to the national rulemaking have been critiques about the program’s shortcomings including its inability to protect Class I areas against pollution hotspots. As a result, there is no statutory authority for EPA to exempt BART-eligible EGUs in Florida from BART by relying on CSAPR. EPA purports only to show that CSAPR is be tter than BART nationwide. Neither EPA nor Florida has attempted to demonstrate that CSAPR is better than BART fo r Florida. The existing analyses demonstrate that CSAPR does not provide greater emissi on reductions at BART eligible EGUs in Florida that likely cause or contribute to visibility impairment, and therefore will not achieve greater than reasonable progress at implicated Class I areas. EPA’s projection that cumulative NOx emissions from BART-eligible EGUs in Florida will be 9,178 tons lower under

BART than under CSAPR is illu strated at individual units.

The commenter provided examples for specific s ources in the comment letter found in the docket (EPA-HQ-OAR-2011-0729-0287).Page 26 of 151 Commenter: National Parks Conservation Association on behalf of numerous organizations

Comment: CSAPR’s Uncertainties and Lack of Source Specifi c Emission Reduction Requirements Make It Unsuitable as a BART Alternative in Georgia

EPA's “CSAPR is better than BART” determination fails to account for the inherent

uncertainties in emissions reducti ons under CSAPR. BART is a techno logy that must be installed and operated year-round, and a corresponding emissi on limit that must also be met year-round.

BART emissions limits must be met on a continuous basis. See 42 U.S.C. § 7602(k); CAA § 302(k). The BART Guidelines require enforceable emission BART limits to be reflected in permits for EGU’s which must “specify an av eraging time of a 30-day rolling average” See 70 Fed. Reg. 39104, 39172 (July 6, 2005).While BART limits are typically set as 30-day rolling averages, visibility impacts are measured base d on a one-hour averaging time. The longer the averaging period, the higher emissions may be in any given hour during that averaging period. An emission limit based on annual averages allows for much higher short-term emissions – and thus much greater short-term impact on visibili ty – than would a limit based on a 30-day rolling average. These requirements allow regulatory agen cies to predict with a high level of certainty

the emissions reductions that will result from BART to ensure improvement in visibility from reductions on the 20% worst days and no degrada tion on the 20% best days in Class I areas. By contrast, CSAPR allows trad ing of emissions allowances be tween sources, including between sources in difference states, rather than impos ing a fixed emission limit for each source. EPA’s

assessment of CSAPR Better than BART does not and likely cannot assess the unknown impact of complex trading under CSAPR on the Class I areas affected by Georgia sources. EPA cannot say with any assurance that it knows specific imp acts to Class I areas in Georgia as it has not modeled the vagaries of trading between stat es coupled with the complex differences in geography and weather patterns th at will affect a specific Cla ss I area. Although each Georgia EGU has a CSAPR allocation, the EGUs may tr ade allowances within certain limits. Regardless of whether this flexibility is a pol icy virtue for CSAPR as a vehicle for ensuring compliance with the NAAQS, this flexibility is a fundamental problem for using CSAPR to comply with the visibility improvements re quired by the Regional Haze Rule. CSAPR’s variability could allow a power plant to exercise options that would lead to little or no emission reductions at its facility. For example, a source in Georgia might purchas e emission credits from a source beyond the airshed of th e Class I area the Georgia sour ce impairs. Each Georgia EGU will have different impacts on visibility as a re sult of, among other things, their respective size, location and the prevailing winds toward Cla ss I areas. EPA does not know – and cannot know under the current rule – which Georgia EGUs will actually reduce emissions under CSAPR, or by how much.

It is however certain that the SO 2 and NOx emission reductions potentially achievable through CSAPR allocations at the at least 19 BART eligib le Georgia EGUs pale in comparison to those that would be required through operation and in stallation of an appropriate BART limit, assuming each source were subject to BART. It is also virtually certain that steeper emission reductions would make greater st rides in attaining reasonable pr ogress goals and therefore calls into question EPA’s reliance on CSAPR to exem pt BART sources from Regional Haze Rule requirements. Thus, without knowing which Ge orgia EGUs will reduce pollutants by what amounts under CSAPR, in which Class I airsheds t hose reductions will occur, or when they willPage 27 of 151 do so, EPA simply cannot demonstrate that CSAPR will result in greater reasonable progress

than source specific BART.

Commenter: National Parks Conservation As sociation on behalf of a number of organizations

Comment: EPA has not shown that, with CSAPR, each Geor gia BART-eligible EGU will (1) not cause or contribute to visibility impairme nt, (2) demonstrate that visibi lity would not decline and (3)

demonstrate that the CSAPR would result in ove rall visibility improvement at Okefenokee, Cohutta, and Wolf Island wilderness areas,, or Cl ass I areas in other states. Consequently, EPA could not possibly make the requisite showing to exempt BART-eligible EGUs in Georgia from BART requirements. Moreover, the Federal Land Managers at Okefenok ee, Cohutta, and Wolf Island wilderness areas, and other Class I areas have not expressly concurred with EPA’s proposed BART exemption for Georgia EGUs. To the contrary the only FLM responses to the national rulemaking have been crit iques about the program’s shortc omings including its inability to protect Class I areas against pollution hotspots. As a result, th ere is no statutory authority for EPA to exempt BART-eligible EGUs in Georgia from BART by relying on CSAPR.

EPA purports only to show that CSAPR is be tter than BART nationwide. Neither EPA nor Georgia has attempted to demonstrate that CS APR is better than BART for Georgia. The existing analyses demonstrate that CSAPR doe s not provide greater emission reductions at BART eligible EGUs in Georgia that likely cause or contribute to visibility impairment, and therefore will not achieve grea ter than reasonable progress at implicated Class I areas.

Examples of emission reductions for specific sources may be found in the docket (EPA-HQOAR-2011-0729-0289).

Commenter: Kristen A. Henry, Sierra Club

Comment: Indiana Illegally Failed to Complete a BART Determination For Each Source Subject to BART

in the State. Even if we assume for the sake of argument th at alternatives to BART are not permissible under the CAA, Indiana nor EPA has not met the regulat ory requirements necessary to approve such alternatives. First, Indiana or EPA was required, but failed, to make a BART determination for each source subject to BART in the state. Pursua nt to 40 CFR § 51.308(e)(2), for all alternatives to BART, the agency “must submit an implem entation plan containing the following plan elements and include documentation for all requi red analyses: ...(C) An analysis of the best

continuous emission control t echnology available and associ ated emissions reductions achievable for each source within the State subj ect to BART and covered by the alternative program. . . . [If] the emissions trading program or other alternative measure has been designed to meet a requirement other than BART. . . the State may determine the best system of

continuous emission control technol ogy and associated emission re ductions for similar types of sources within a source category based on both source-specific and categ ory-wide information, as appropriate.” (emphasis added).

EPA’s proposed Regional Haze FIP fails to comply with those regulatory requirements. Rather

than make a BART determination for each indivi dual source subject to BART that would bePage 28 of 151 covered by Indiana’s proposed al ternative to BART program (spe cifically, CSAPR), EPA simply compared projected emissions reduction from CSAPR to presumptive BART emissions. 76 Fed. Reg. 82219, 82225. In doing so, EPA entirely ignored the regulatory mandate that it determine BART “...based on both source-specific and category wide information....” 40 C.F.R. § 51.308(e)(2)(C). As EPA made clear in its BART Guidelines, presumptive BART levels are not source-specific; rather, they me rely provide a general baseline for BART that States may – indeed, must – deviate from if a source-specific analysis so indicates. See 40 C.F.R. Part 51, Appendix Y; BART Guidelines at 39171 (p resumptive BART limits only apply if no

determination made that “an alternative control le vel is justified based on a careful consideration of the statutory factors” for a given source). Because Indiana and EPA both entirely failed to use source-specific information or undertake a compre hensive five factor analysis to determine BART, EPA may not approve the pr oposed partial Regional Haze FIP.

Commenter: Earthjustice/Texas

Comment:

EPA’s “better than BART” conclusion is also unsupportable in Texas because CSAPR will not achieve greater reasonable progress than BART . As noted above, under the RHR, EPA must demonstrate that CSAPR “will achieve greater r easonable progress than would have resulted from the installation and operation of BART at all sources subject to BART in the State and covered by the alternative program.” 40 C.F. R. § 51.308(e)(2)(i) (e mphasis added). As Earthjustice’s accompanying commen t letter explains, EPA must determine whether CSAPR is better than BART on a state-by-st ate and source-by-source basis. EP A has failed to analyze, let alone demonstrate, whether CSAPR is better than BART for the BART-eligible EGUs in Texas. Further, as Earthjustice’s accompanying comment letter also demonstrates, had EPA undertaken the required source-by-source, state-by-state anal ysis, EPA could not reach a credible conclusion

that CSAPR is better than BART in the 28 CS APR states. EPA’s partial FIP for Texas has two additional problems: the available evidence de monstrates that CSAPR will achieve less reasonable progress than BART because it will allo w for greater sulfate emissions statewide and significantly less SO 2 and NOx emission reductions at BA RT-eligible EGUs in Texas.

Sulfate Emissions in Texas Would Be At Least 91% Greater Under CSAPR than BART As discussed above, EPA and the National Park Se rvice have determined that sulfate emissions are the primary cause of regional haze at Big Bend. See supra at 4–5. Moreover, the State of

Texas has determined that SO 2 emissions are the “predominant” contributor to visibility impairment from Texas EGUs. Id.

According to EPA data, SO 2 emissions in Texas would be 91% greater under CSAPR than BART. Under EPA’s “Transport Rule + BA RT-elsewhere” scenario, 2014 annual SO 2 emissions in Texas would be 266,600 tons. TSD at 10, Tabl e 2-4. Under the “Natio nwide BART” scenario, however, 2014 annual SO 2 emissions in Texas would be 139,300 tons. Id. This represents a 91%

increase in SO 2 emissions under CSAPR relative to BART . Moreover, this 91% increase in SO 2 emissions under CSAPR does not account for the revisions to Texas’s SO 2 budget, which allows Texas EGUs to emit significantly greater SO 2 emissions than provided in the initial version of

CSAPR. See supra at 14–15. CSAPR will thus result in an even greater increase in SO 2 emissions relative to BART than the 91% in crease detailed in the TSD. Interagency staff reviewing EPA’s “better than BART” determin ation for CSAPR recognized this problem. ThePage 29 of 151 interagency staff “expressed concer n” that EPA’s proposed rule creates subregions, such as in Texas, where “emissions reductions under CSAP R could be significantly less than under BART.” Summary of Interagency Worki ng Comments on Draft Language under EO 12866 Interagency Review, at 8 (Exh. 11) . Further, these reviewers rec ognized that BART controls for

SO 2 are “essential component[s]” to reducing vi sibility impairment at Class I areas. Id. at 9.

EPA’s proposed rule, however, would ignore thos e findings and exempt BART-eligible EGUs in Texas from installing and operating these critical BART controls. As a result, CSAPR will result in greater SO 2 emissions in Texas than would a ppropriate BART determinations.

BART Would Require Significantly Greater SO 2 and NOx Emission Reductions from Texas’s BART-Eligible EGUs than CSAPR CSAPR also does not make greater reasonabl e progress than BART in Texas because CSAPR will not require the level of emissions reductions from BART-eligible EGUs in Texas than BART would. As discussed above, more th an two-thirds of Texas’s BART-eligible EGUs do not employ any SO 2 controls. See Table 1. CSAPR requires these EGUs to reduce their

annual SO 2 emissions to varying degrees—ranging from a 6% reduction at Harrington Unit 2 and a 15% reduction at Harrington Unit 1 relative to 2010 emissions , up to 73% reductions at Big

Brown Units 1 and 2. Compare Table 2 & Exh. 9 (revised CSAPR allocations), with Exh. 4 (2010 emissions). However, BART limits at these EGUs would require far greater reductions, as

BART for SO 2 achieves 95–99% SO 2 removal. See 76 Fed. Reg. at 81742; 76 Fed. Reg. at

64203.

Similarly, the majority of the BART-eligible EGUs in Texas do not employ SCR, which is commonly BART for NOx controls. See Table 1. In 2010, these EGUs emitted NOx at average rates varying from 0.10 lb/MMBtu (Sam Seymour Unit 1) to 0.28 lb/MMBtu (Harrington Unit 1). Exh. 4. BART for NOx, however, is often SCR achieving emissions rates as low as 0.04

lb/MMBtu. See 76 Fed. Reg. at 64203; 76 Fed. Reg. at52388. CSAPR requires marginal

reductions in NOx emissions at Texas’s BART -eligible EGUs, ranging from a 5% reduction

relative to 2010 emissions at Harrington Unit 2 to a 47% reduction at Harrington Unit 1. Compare Table 2 & Exh. 9 (revised CSAPR allocations), with Exh. 4 (2010 emissions). The NOx reductions required by CSAPR will not ach ieve the BART rate of 0.04 lb/MMBtu. Moreover, the BART-eligible EGUs in Texas th at have installed SCR (Sandow Unit 4 and WA Parish Units 5–7) will be allowed to increase their NOx emissions under CSAPR. Compare Table 2 & Exh. 9 (revised CSAPR allocations), with Exh. 4 (2010 emissions). Consequently, they will emit NOx at a rate above the BART limit of 0.04 lb/MMBtu. Given this evidence, CSAPR plainly will not make greater reasonable progress than BART, as required by the RHR

for a viable BART-alternative. See 40 C.F.R. § 51.308(e)(2). Acco rdingly, EPA cannot issue a partial FIP for Texas relying on CSAPR in place of BART controls for Texas’s BART-eligible

EGUs.

Commenter: Kathryn M. Amirpashaie/Sierra Club

Comment: Case Specific BART Determinations for SO 2 emissions from EGUs in Alabama, North Carolina, and South Carolina Would Almost Certainly Ensu re Greater Progress than would be achieved by CSAPR.Page 30 of 151 In many of the states for which EPA has proposed to issue a limited disapproval of the regional haze SIP and replace the SIP with a partial regi onal haze FIP, substituting CSAPR for BART does not actually result in great er reasonable progress towards thes e states visibility goals.

In making this determination, as a first level of analysis, Sierra Club looked at BART-eligible sources in Alabama, North Caroli na, and South Carolina that ha ve not installed scrubbers to

determine whether installation of BART scr ubbers on those units would achieve greater

emissions reductions than CSAPR. As previously discussed, in recent case-specific BART

determinations EPA has determined that instal ling scrubbers can result in a 99% reduction of emissions or, alternatively, in an emissions limit of 0.06 lb/MMBtu SO 2 . In Exhibits 1 and 2 to this comment, expert Ranajit Sahu has exam ined what effects a benchmark limit of 0.06

lb/MMBtu SO 2 would have on emissions from BART-eligible EGUs in Alabama, North Carolina, and South Carolina, as well as in Mi ssissippi. His findings s how significantly greater progress at a number of these EGUs through app lication of a 0.06 lb/MMBtu emission limit as opposed to CSAPR. See Ranajit Sahu’s report and spreadsheet, attached hereto as Exhibits 1 and 2, respectively. Similarly, in our comments below, we have presented, as an example of the potential emissions reductions that could be achieved by inst alling BART scrubbers on EGUs

that result in a reduction of 99% SO 2 emissions, a comparison of those potential emissions

reductions with CSAPR.

As our findings demonstrate, in Alabama, Nort h Carolina, and South Carolina BART (i.e. Wet Flue Gas Desulfurization Systems, a.k.a. sc rubbers) could provide significant emissions

reductions over CSAPR. The discussion below is not intended to capture every instance where

BART is needed over CSAPR to ensure reasonabl e progress. Instead, by l ooking at units that do not currently have SO 2 controls yet are located within 300 km of Class I areas, the analysis targets the most egregious cases.

The commenter submitted examples of emission reductions for specific sources may be found in the docket (EPA-HQ-OAR-2011-0729-0245).

Commenter: Earthjustice on beha lf of numerous organizations

Comment: The Proposed Partial FIPs Do Not Make Reasonable Progress In many of these states for which EPA has proposed to issue a limited disapproval of the regional haze SIP and replace the SIP with a partial regi onal haze FIP, substituting CSAPR for BART does not promise to result in greater reasonable progress. As the discussion below demonstrates, in Alabama, Georgia, Indiana, Michigan, Misso uri, North Carolina, Ohio, Pennsylvania, South Carolina, and Texas, BART will likely provide si gnificant emissions reductions over CSAPR at the BART-eligible sources neighboring Class I Areas . These emissions reductions are very likely

needed to ensure that each state either m eets its own reasonable pr ogress goals or does not preclude achievement of reasonabl e progress in downwind states.

The discussion below is not intended to capture every instance where BART is needed in

addition to CSAPR to ensure reas onable progress. We looked exclus ively at units that: (1) do not currently have SO 2 or NOx controls; and (2) are located wi thin 300 km of Class I areas, in an effort to target the most obviously problematic implications of exemp ting sources from BARTPage 31 of 151 requirements in the proposed FIP states. (We expect similar concerns to be present in all states across the CSAPR regions). Based on these exam ples alone, however, EPA cannot finalize these reasonable haze FIPs without undertaking state- specific demonstrations that CSPAR somehow achieves greater reasonab le progress than BART.

EPA Response: In the preamble to the proposed ru le and in the TSD for the propos ed rule, the EPA presented the results of a national air quality mo deling analysis that support the determination that the regional trading programs of CSAPR will result in better reasonable progress towards improving visibility at Class I areas than source-sp ecific BART. The EPA established that the two-pronged test for determining the adequacy of a BART alternativ e program, as defined by the regional haze rule, was met. The trading programs of CSAPR apply to all electric generating units (EGUs) in a CSAPR state compared to only a limited number of sources that may be BART-subject. The EPA’s analysis demonstrated that emission reduc tions from a much larg er number of EGUs located across a large regional ar ea resulted in greater visibilit y improvement at the affected

Class I areas. The commenters maintain that EPA underestimated the em ission reductions that would be achieved at BART-eligible EGUs by relying on what the commenter maintains are EPA’s too-high presumptive limits for BART. Th e EPA believes that assuming application of presumptive limits contained in EPA’s BART Gu idelines (40 CFR part 51 Appendix Y) over a broad region is a reasonable and appropriate method for estimating the emissions reductions from application of BART. The EP A disagrees that it is necessa ry to conduct an EGU-specific analysis for each BART-eligible EGU. The commenter’s assertion that BART is represented by the application of selective catalytic reduction (SCR) for NO x control and scrubbers for SO 2 control ignores the definition of BART. The determination of a BART emission limit considers existing controls on the unit, the cost of new cont rols, the remaining useful life of the unit, the visibility improvement reasonably expected fr om the controls, and other nonair and energy considerations. Thus it is speculative to assu me that every BART-eligible EGU would be required to apply additional contro ls or to assume the highest le vel of emission reduction due to

those controls.

The



### IX. Comments on the Relationship between CSAPR, BART, and other Requirements of Regional Haze SIPs

Commenter: Earthjustice on behalf of a number of organizations

Comment:

EPA has not evaluated or determined each stat e‘s reasonable progress go als, and thus cannot reasonably conclude that CSAPR achieves greater reasonable progress than BART. 40 C.F.R. § 51.308(d), (e)(3).

EPA Cannot Conclude That CSAPR Achieves Grea ter Reasonable Progress than BART without Reference to Each State’ s Reasonable Progress Goals EPA’s proposed better-than-BART finding is improper because it looks at BART in isolation,

without reference to or consideration of the reas onable progress goals that BART and all of the other measures incorporated in to regional haze plans are intend ed to achieve. EPA‘s proposalPage 32 of 151 states that the Agency will act on reasonable progress goals (and other regional haze requirements) “for each state in an individual notice at or after the time of the final rule for this action.” 76 Fed. Reg. 82219, 82221 (Dec. 30, 2011). Furt her, EPA will not disapprove any 2018 reasonable progress targets. W ithout defining or even refere ncing those goals, EPA cannot reasonably conclude that CSAPR achieves reason able progress at all, much less greater reasonable progress than BART under 40 C.F.R. § 51.308(e)(3).

Achieving reasonable progress is the fundamental objective that must be met by regional haze SIPs or FIPs. See 40 C.F.R. § 51.308(d)(1) (listing the reasonable progre ss goals as a core requirement of the regional haze plan); see also UARG, 471 F.3d at 1340 (explaining that the regulatory scheme places reasonable progress at its center, and state regional haze plans must

contain sufficient measures to achieve reasonable progress). Thus, each statewide regional haze plan must contain regional progr ess goals, which are set based on the uniform rate of progress to attain natural visibility cond itions by 2064, and each plan must prescribe the immediate and long term strategy measures, including BART, that ar e necessary to meet those progress goals. See 40 C.F.R. §§ 51.308(d)(1) & (3); id. § 51.308(e). Because BART is critical to th e state‘s ability to reach its reasonable progress goals, EPA cannot ex empt sources from BART without considering how the exemption will affect the overarching reasonable progress mandate. See CAA §169A(b)(2)(A), 42 U.S.C. § 7491(b)(2)(A). Co ncluding that CSAP R achieves greater reasonable progress toward achieving natural visibility conditions than BART without regard to defined reasonable progress goals is arbitrary and contrary to law under the Clean Air Act and implementing federal regulations.

Failure to consider the impact of the proposed BART exemption is most obviously improper in instances where states expressly relied on emi ssions reductions consistent with presumptive BART to meet reasonable progress goals. As the U.S. Forest Service (USFS) has made clear in comments to EPA on the current proposal:

[W]hile EPA states “we believe that the reasona ble progress goals in the SIPs for the states addressed in this proposed action do not need to be revised by the states at this time or replaced by goals established by us via FIPs, ” the reality is that the allowa nce for creation of visibility “hot spots” through the application of the Tr ansport Rule as a BART alternative creates

inconsistencies where the established reasonabl e progress goals relied upon presumptive BART levels. We do not agree that progress goals woul d not need to be revise d under this rulemaking. [FN 19]

... Similarly, because BART can produce greater vi sibility improvement than CSAPR at one or more Class I area (see Section VII.A, infra) , the proposed rule violates 40 C.F.R. § 51.308(d)(1)(vi), which establishes th at a state may not adopt a progr ess goal that represents less visibility improvement than would be expected from complying with requirements under the Clean Air Act, including BART. See also USFS Comments at 14-15 (expla ining that EPA cannot adopt the proposed rule because it would sanction the adoption of reasonable progress goals that provide less visibility improvement than BART in contravention of 40 C.F.R. § 51.308(d)(1)(vi)).

[FN 19] United States Forest Service Comments on Bette r than BART NPRM (USFS Comments) at 1 (Nov. 28, 2011). The USFS Comments on EPA‘s Draft Notice of Proposed Rule Making were obtained on February 28, 2012Page 33 of 151 in response to a Freedom of Information Act request. Th ese comments are incorporated by reference herein and

attached as Attachment 1.

Commenter: Kathryn M. Amirpashaie/Sierra Club

Comment: EPA Must Evaluate Regional Haze Pl ans in Whole, Not In Part EPA’s proposed limited partial FIPs for Alabam a, Mississippi, North Carolina, and South

Carolina violate the CAA and RHR since EPA has failed to evaluate what effect exempting

EGUs in these states from BART would have on the remaining components of their regional

haze SIPs. See 40 CFR § 51.308(d)(e). Regional haze SIPs/FIP s must contain the entirety of a state’s comprehensive plan for attaining natural visibility conditions by 2064, including the state’s reasonable progress goals , its long term strategy to meet those goals, and its BART

determinations. See CAA § 169A(b)(2)(A); 42 U.S.C. § 7491(b)(2)(A); 40 C.F.R. § 51.308(d), (e). Because these components are interrelate d, EPA cannot approach regional haze as it has done here, in a piecemeal fashion.

Indeed, all of required components of a Regional Haze SIP/FIP very much affect one another, are part of a “single administrative action,” a nd must be evaluated together. [FN 13] EPA cannot evaluate individual components of a regional haze plan in isolation without re ference to whether reasonable progress will be achieved collectively by the sum of the parts of each plan.[FN 14] As a consequence, EPA cannot exempt sources fr om the RHR’s BART requirements without full consideration of how that exemption would aff ect the overarching reasonable progress mandate.

See 42 U.S.C. § 7491(b)(2)(A).

Therefore, EPA’s finding that CSAPR is “better than BART”, without an examination of how

the CASPR-instead-of-BART subs titution would impact the rema ining portion of these states’ regional haze SIPs is unlawful. EPA must wait to make a BART-alternative determination at the same time EPA reviews and approves these states ’ revisions to their regional haze SIPs that address regional haze for the first implementation period. [FN 15] See Utility Air Regulatory Group v. EPA , 471 F.3D 1333, 1340 (D.C. Cir. 2006) (e xplaining that even if EPA has determined that a program is “better than BART”, if at the state level th at same program is not likely to achieve the State’s ow n reasonable progress goals, the st ate must take other measures that will achieve those goals at each Class I area.) As a result, EPA’s proposed limited FIPs for Alabama, Mississippi, North Carolina, and South Carolina are improper.

EPA cannot issue legally-defensib le partial regional haze FIPs for Alabama, Mississippi, North Carolina, or South Carolina that rely on CSAPR to prematurely ex empt all power plants from the RHR’s BART requirements. A strong regional h aze plan that complies with the visibility protection regulations—including BART controls at all BART-eligible EGUs—is critically important to protect public health and improve vi sibility at Class I areas in these and nearby

states. In addition to the immeasurable health benefits that accompa ny a reduction in those pollutants which contribute to regional haze, a strong regional haze plan will benefit tourism and local economies by ensuring that people from around the world will continue to travel to these states to explore and enjoy their natural treasures.

[FN 13] Regional haze plans are singula r, comprehensive documents that must achieve reasonable progress through BART, a long term strategy, and other controls and, therefore, they cannot be segmented so that only portions of thePage 34 of 151 plans are approved at a particular ti me. See 40 C.F.R. § 51.308(b) & (f). As a result, EPA cannot issue a partial regional haze FIP that segments and divorces the analysis of the complementary BART and reasonable progress requirements. Indeed, courts have forbid EPA from evaluating a SIP revision in a vacuum where a larger analysis is required to determine whether the revision complies with the Clean Air Act. See Ass’n of Irritated Residents v. EPA

, --- F.3d ----, Nos. 09-71383, 09-71404, 2012 WL 251912, at *4 (9th Cir. Jan. 27, 2012) (citing Hall , 273 F.3d at1159 (“The EPA must be able to determine that, with the revisions in place, th e whole ‘plan as . . . revised’ can meet the Act’s attainment requirements.”)). In addition, EP A’s own guidance rejects the idea that it is permissible to issue partial or piecemeal approval of SIPs that are meant to be singular, comprehensive documents. See Memorandum from John Calcagni, Director, Air Quality Mg mt. Div., OAQPS, to Air Div. Directors, EPA Regional Offices, at 2 (1992) (stating that “[f] or example, EPA cannot approve part of a submittal that specifies control measures and disapprove the part that specifies the test methods associated with those control measures”), available at http://www.epa.gov/ttn/caaa/t1/memoranda/siproc.pdf. According to this guidance, EPA can issue partial approvals only in certain situations. For example, where a state submits “groups of rules” together, t]he EPA can approve some of the rules and disapprove the rest as long as the rules that are disapproved do not affect those that are approved.” Id . Where the rules or other proposals are not separable, however, EPA may not segment the analysis. Id . This is consistent with Sectio n 110(k) of the Clean Air Act, which allows for partial approval and partial disapproval of a SIP revision, but does not suggest that a portion of a single revision can simply be ignored when issuing such partial approvals or disapprovals. 42 U.S.C. § 7410(k)(3) (“If a portion of the plan revision meets all the applicable requirements of this chapter, the Ad ministrator may approve the plan revision in part and disapprove the plan revision in part.”). [FN 14] The overarching mandate of the Act and the RH R is a state-wide regional haze plan that achieves reasonable progress toward the 2064 natural visibility goal. 40. C.F.R. § 51.308. To meet the 2064 goal, a regional haze plan involves two intertwined components: BART cont rols and a long-term strategy to achieve reasonable progress toward that goal. See 42 U.S.C. § 7491(b)(2) ( “each applicable implementation plan” must “contain such emission limits, schedules of compliance and other measures as may be necessary to make reasonable progress.”); 40 C.F.R. § 51.308(d)(1) & (3). [FN 15] The proposed promulgation deadline for these four states was February 15, 2012. See Consent Decree, Nat’l

Parks Conservation Ass’n v. Jackson , No. 1: 11-cv-01548 (ABJ) (D.D.C. Nov. 9, 2011). These proposed rules were published in the Federal Register, today, February 28, 2012. See Proposed Rule, Approval and Promulgation of Air Quality Implementation Plans; State of North Carolina; Re gional Haze State Implementation Plan, 77 Fed. Reg. 11858 (February 28, 2012); Proposed Rule, Approval and Pr omulgation of Air Quality Implementation Plans; State of Mississippi; Regional Haze State Implementation Plan, 77 Fed. Reg. 11879 (February 28, 2012); Proposed Rule, Approval and Promulgation of Air Quality Implementation Plans; So uth Carolina; Regional Haze State Implementation Plan, 77 Fed. Reg. 11894 (February 28, 2012); Proposed Rule, Approval and Promulgation of Air Quality Implementation Plans; State of Alabama; Regional Haze State Im plementation Plan, 77 Fed. Reg. 11937 (February 28, 2012).

Commenter: National Parks Conservation Association on behalf of numerous organizations

Comment: EPA Cannot Issue a Partial Regional Haze FIP w ithout Evaluating Georgia’s Proposed SIP as a

Whole EPA’s proposed partial FIP violates the Clean Ai r Act and RHR because EPA failed to evaluate, let alone determine, whether exempting Georgi a EGUs from BART complies with the Act’s reasonable progress mandate. The D.C. Circuit has explained that the overarching mandate of the Clean Air Act and the RHR is a state-wide region al haze plan that achieves reasonable progress

toward the 2064 natura l visibility goal. Util. Air Regulatory Group , 471 F.3d at 1340; Ctr. for Energy and Econ. Dev. v. EPA , 398 F.3d 653, 660 (D.C. Cir. 2005). To meet the 2064 goal, a regional haze plan must include two critical components: BART limits and a long-term strategy to achieve reasonable progress toward that goal. 42 U. S.C. § 7491(b)(2)(A) & (b)(2)(B); 40 C.F.R. § 51.308(d)(1), (d)(3), (e); see also 42 U.S.C. § 7491(b)(2).Page 35 of 151 A regional haze plan’s BART requirements and long-term strategy cannot be evaluated in

isolation. In order to set the r easonable progress goals in the l ong-term strategy, EPA or the state must, among other things, determine a “uniform rate of progress” required to meet that goal. 40 C.F.R. § 51.308(d)(1)(B). As part of that calc ulation, EPA or the state must determine “the uniform rate of improvement in visibility and the emission reduction measures needed to achieve it for the period covered by the implementation plan.” Id . Because BART is a critical component to achieving reasonable progress, neither the states nor EPA can exempt sources from the RHR’s BART requirements without any consideration of how doing so will affect the overarching reasonable progress mandate.

Despite these requirements, the proposed part ial FIP for Georgia c ontains exactly three sentences, none of which analyzes a long-term strategy or reasonable progress goals, nor how the exemption of all EGUs would affect such a strategy or goals if they existed. See 76 Fed. Reg. at 82232. Absent a uniform rate of progress calculat ion, long-term strategy, or reasonable progress goals, EPA has no rational basis to determine th at CSAPR emissions controls are sufficient to comply with the RHR reasonable progress mandate.

All required components of a Regional Haze SIP or FIP affect each other, are part of a “single administrative action,” and must be evaluated together to determine if the partial FIP complies

with the Clean Air Act and RHR. EPA’s failure to consider together the proposed alternative BART program, the long-term strategy and reasonab le progress goals in Georgia’s SIP violates

the Clean Air Act and RHR and is arbitrary and capricious.

EPA’s premature decision to exempt Georgia EGUs from NOx BART will put the burden of reaching reasonable progress goals on non-BART eligible EGUs and other non-EGU hazeemitting sources in the state. For most BART eligible Georgia EGUs, adequate BART controls

for SO 2 and NOx would compel the installation a nd operation of scrubbers and SCR (assuming they were not already installed) – proven and widely-available technol ogies that significantly

reduce SO 2 and NOx emissions. However, because EPA is exempting BART controls at subject sources, non-BART EGUs and other non-EGU sources will need to more substantially reduce other haze causing emissions to help achieve re asonable progress goals. As a result, instead of installing and operating SO 2 and NOx BART controls at a se lect number of BART eligible EGUs in Georgia, the proposed rule would force EPA to secure a greater share of the necessary visibility improvements from additional emission controls on non-BART EGUs and other source categories to make up for lost emission reductions at BART-eligible EGUs.

For the reasons stated above and the reasons provided in the nationa l comments, CSPAR does not satisfy the requirements of the Regional Haze Rule, and cannot be approved as a substitute for BART as proposed. Instead, EPA must promul gate a regional haze plan that contains all aspects of the state’s regional haze plan including source-specific SO 2 and NOx BART limits for the Georgia EGUs.

Commenter: National Parks Conservation Association on behalf of numerous organizations

Comment: BART is Required to Meet Reasonable Progre ss Goals for Class I Areas in GeorgiaPage 36 of 151 The CAA requires Georgia to submit a state impl ementation plan that co ntains “such emission limits, schedules of compliance and other measures as may be necessary to make reasonable progress toward meeting the national goal” of returning Class I areas to natural visibility conditions. 42 U.S.C. § 7491(b)(2). Furthermore, EPA has interpreted the statute to mean that each state must establish a reasonable progress go al for each Class I area within its borders, 40 C.F.R. § 51.308(d)(1), and then, in its long- term strategy, adopt enforceable emissions limitations and other measures “as necessary to achieve the reasonable progress goals.” Id. § 51.308(d)(3). A State must require that “all necessary emissions re ductions take place during the period of the first long-term strategy for region al haze.” 40 C.F.R. § 51.308(e) (2)(iii). The end of the first long-term strategy period for regiona l haze is 2018. For Class I areas outside a state’s border, the state has an obligation to ensure it adop ts controls necessary to ensure its share of the pollution reductions that are requi red in order to meet the reasonable progress goals set for the subject Class I area. Id.

Allowing sources in Georgia to escape SO 2 BART controls is likely to preclude Georgia from achieving its reasonable progress goals. Georgia contains eigh t units that do not have SO 2 controls that are also located within 300 km of two of its thr ee Class I areas, Cohutta Wilderness Area and Wolf Island Wilderness Area. Applying proper BART emission limits at these units

would reduce SO 2 emissions by approximately 95% over CS APR allocations for these units, as the table below demonstrates. EPA cannot approv e a FIP for Georgia without analyzing whether Georgia will still be on track to meet its reasona ble progress goals even if it opts out of BART controls that reduce emissions by 95% over CSAP R. Given that CSAPR allows for 31,268 tons

of SO 2 emissions per year at uncontrolle d plants, whereas BART would limit SO 2 emissions to less than 1,500 tons per year, Georgia will not likely be able to make reasonable progress without

BART.

The commenter provides examples for specific EGUs in the comment letter submitted to the docket (EPA-HQ-OAR-2011-0729-0289).

Commenter: National Parks Conservat ion Association and Earthjustice

Comment: EPA’s proposed partial FIP for Florida is necessar ily restricted to NOx BART limits at BART eligible EGUs because power plants in th e state are only covere d under CSAPR for ozone season. Therefore, BART eligible power plants in Florida are not exempt from BART for SO 2 under this proposed rulemaking. Accordingly, Florid a and EPA must issue BART determinations

for SO 2 at each source subject to BART, including those EGUs subject to CSAPR. Because of this bifurcated treatment of the largest sour ces of haze causing pollution in the state, the proposed partial FIP violates th e Clean Air Act and RHR because EPA failed to evaluate, let alone determine, whether exempting Florida EGUs from BART complies with the Act’s reasonable progress mandate.

EPA has failed to account for how, in the absence of relied upon SO 2 reductions anticipated under CAIR, it will maintain its uniform rate of progress. Moreover, even if somehow EPA could justify the conclusion that Florida will rema in on the glidepath, the national rule expressly states that EPA is taking no action on those goa ls, effectively making it impossible to determine whether CSAPR for an ozone season only state could achieve greater reasonable progress than an absent or unconfirmed goal. See 76 Fed. Reg. at 82221. Absent a uniform rate of progressPage 37 of 151 calculation, long-term strategy, or reasonable progress goals, EPA has no rational basis to

determine that CSAPR emissions controls are sufficient to comply with the RHR reasonable progress mandate.

All required components of a Regional Haze SIP or FIP affect each other, are part of a “single administrative action,” and must be evaluated together to determine if the partial FIP complies

with the Clean Air Act and RHR. EPA’s failure to consider together the proposed alternative BART program, BART for SO 2 , the long-term strategy and reasonable progress goals in

Florida’s SIP violates the Clean Air Act a nd RHR and is arbitrar y and capricious.

EPA’s premature decision to exempt Florida EGUs from NOx BART will put the burden of reaching reasonable progress goals on non-BART eligible EGUs and other non-EGU hazeemitting sources in the state. For a number of BART eligible Florida EGUs where it is not already installed, adequate BART controls fo r NOx would likely compel the installation and operation of SCR – proven and widely-available technologies that significantly reduce NOx emissions. However, because EPA is exempting BART controls at subject sources, non-BART

EGUs and other non-EGU sources will need to mo re substantially reduce other haze causing emissions to help achieve reas onable progress goals. As a re sult, instead of installing and operating NOx BART controls at a select number of BART elig ible EGUs in Florida, the proposed rule would force EPA to secure a greater share of the necessary visibility improvements from additional SO 2 and other emission controls on non-BART EGUs and other source categories to make up for lost NOx emissions.

Furthermore, this burden extends to neighboring states like Georgia, which described in its 2010 SIP waiting for expected SO 2 reductions from Florida sources. Florida sources have a larger impact than Georgia sources at one of the stat e’s Class I areas (Okefenokee) and a significant impact at another (Wolf Island). Georgia sources also bear the weight of securing the necessary visibility improvements absent em ission reductions from Florida.

For the reasons stated above and the reasons provided in the nationa l comments, CSPAR does not satisfy the requirements of the Regional Haze Rule, and cannot be approved as a substitute for BART as proposed. Instead, EPA must promul gate a regional haze plan that contains all aspects of the state’s regional haze plan includ ing source-specific NOx BART limits for the

Florida EGUs.

Commenter: Earthjustice/Texas

Comment: EPA Must Evaluate Regional Haze Plans in Whole, Not In Part EPA’s proposed partial FIP for Texas also vi olates the Clean Air Act and RHR because a regional haze plan’s BART requirements and long- term strategy to achieve reasonable progress cannot be evaluated in isolation. In proposing a pa rtial FIP for Texas, EPA failed to evaluate, let alone determine, whether exempting BART-eligible EGUs in Texas from BART complies with the Act’s reasonable progress mandate.

Under the Clean Air Act and the RHR, reasonabl e progress is the corn erstone and overarching mandate of each state-wide regional haze plan. Util. Air Regulatory Grp. , 471 F.3d at 1340Page 38 of 151 (explaining that the regulatory sc heme places reasonable progress at its center, and state regional haze plans must contain sufficient meas ures to achieve reasonable progress); Ctr. For Energy &

Econ. Dev. v. EPA , 398 F.3d 653, 660 (D.C. Cir. 2005). Each st atewide regional haze plan must contain reasonable progress goals. These goals are based on a determ ination of the “uniform rate of progress” to attain natural visibil ity conditions by 2064, and a determination of “the uniform rate of improvement in visibility and the emission reduction measures needed to

achieve it for the period covered by the implementa tion plan.” 40 CFR 51.308(d)(1)(B)(emphasis added). Thus, a regional haze plan must include two critical components: a long-term strategy to achieve reasonable progress and BART limits. 42 U.S.C. § 7491(b)(2)(A) & (b)(2)(B); 40 C.F.R. § 51.308(d)(1), (d)(3), (e); see also 42 U.S.C. § 7491(b)(2) (“each applicable implementation plan” must “contain such emission limits, schedules of compliance and other measures as may be necessary to make reasonable progress”). Becau se BART is a critical component to achieving reasonable progress, neither the states nor EPA ar e authorized to exempt sources from the RHR’s BART requirements without considering how doi ng so will affect the overarching reasonable progress mandate. See 42 U.S.C. § 491(b)(2)(A).

Concluding that CSAPR achieves greater reasonable progress toward achieving natural visibility conditions than BART in a regional haze FIP wit hout regard to defined reasonable progress goals is arbitrary and contrary to law under the Clean Air Act and the RHR. [FN 11] Despite these requirements, the proposed partial FIP for Texas contains exactly three sentences, none of which analyzes the long-term strategy or reasonable pr ogress goals, nor how the exemption of all EGUs would affect such a strategy or goals if they existed. See 76 Fed. Reg. at 82234. [FN 12] Moreover, even if the plan provided for reasona ble progress goals, the national rule expressly states that EPA is taking no action on those goa ls, effectively making it impossible to determine whether an alternative program could achieve gr eater reasonable progress than a absent or unconfirmed goal. See id. at 82221. Absent a uniform rate of progress calculation, long-term strategy, or reasonable progress goals, EPA has no rational basi s to determine that CSAPR emissions controls are sufficient to comply with the RHR reasonable progress mandate. EPA’s failure to consider the propos ed BART-alternative program al ong with the long-term strategy and reasonable progress goals in Texas’s SIP violates the Clean Air Act and RHR and is arbitrary and capricious. See, e.g.

, Motor Vehicle Mfrs. Ass’n of th e U.S. v. State Farm Mut.Auto.

Ins. Co. , 463 U.S. 29, 43 (1983).

[FN 11] EPA’s proposal for a Texas partial FIP proposal is also contrary to EPA’s guidance, which rejects the idea that it is permissible to issue partial or piecemeal approv al of SIPs that are singular, comprehensive documents. See Memorandum from John Calcagni, Director, Air Quality Mg mt. Div., OAQPS, to Air Di v. Directors, EPA Regional Offices, at 2 (1992) (Exh. 7). According to this guidance, EPA can issue partial approvals only in certain situations. For example, where a state submits “groups of rules” toge ther, “EPA can approve some of the rules and disapprove the rest as long as the rules that are disapproved do not affect those that are approved.” Id . Where the rules or other proposals are not separable, however, EPA may not vacuum where a larger analysis is required to determine whether the revision complies with the Clean Air Act. See Ass’n of Irritated Residents v. EPA , --- F.3d ----, Nos. 09-71383, 09-71404, 2012 WL 251912, at *4 (9th Cir. Jan. 27, 2012) (“The EPA must be able to determine that, with the revisions in place, the whole ‘plan as . . . revised’ can meet the Act’s attainment requirements.” (quoting Hall v.

EPA , 273 F.3d 1146,1159 (9th Cir. 2001)). [FN 12] As detailed below, Texas’s SIP predicts it will miss this goal by 91 years at Big Bend National Park, and that number that is likely too optimistic. See infra at n.13. Accordingly, EPA’s failu re to control emissions at the EGUs appropriately deemed to be subject to BART in Texas—some of the oldest and largest sources of air pollution in the state—will have significant consequences for all other sources, which will bear an additional burden of steeper emission reductions to ensure the st ate meet its reasonable progress obligations.Page 39 of 151 Commenter: Earthjustice/Texas

Comment: EPA Cannot Issue a Partial FIP for Texas In Li ght Of the Texas SIP’s Failure to Achieve Reasonable Progress EPA’s premature determination that no EGUs in Te xas will be required to install BART controls is particularly problematic in light of the fact that Texas’s regional haze SIP does not come even close to achieving reasonable prog ress toward the 2064 natural visi bility goal. Instead, the Texas SIP would not achieve “natural” visibility conditions until 2155 at Big Bend and 2081 at Guadalupe Mountains, at the earlie st. Texas SIP at 10-1.[FN 13] This unreasonable delay in achieving the statutory goal is due to the fact that the Texas SIP exempts every single BARTeligible source in the state from installing contro ls to improve visibility impairment. Texas did not (and could not) demonstrate that it’s no co ntrol “status quo” approach makes reasonable progress, as required by the RH R. 40 C.F.R. § 51.308(d)(1)(ii). And, Texas provided no rational

basis for its conclusion that the 2064 natural visi bility goal is not reasonable at Big Bend and Guadalupe Mountains. See id.

Because the Texas SIP fails to achieve reasonab le progress toward the 2064 natural visibility goal, EPA must issue a regional haze FIP for Texas that does so. Texas’s regional haze plan must ensure that a 2.3 dv improvement is achieved by 2018 at Big Bend and a 2.4 dv improvement is achieved by 2018 at Guadalupe Mountains on the 20% worst days.[FN 14] In contrast, under the Texas SIP, which exempted BART-eligible EGUs from BART in reliance on CAIR, visibility by 2018 would improve by only 0.7 dv at Big Bend a nd 0.9 dv at Guadalupe Mountains. Texas SIP at 10-1, 10-9, Table 10-2. Consequently, an addi tional 1.6 dv improvement at Big Bend and an additional 1.5 dv improvement at Guadalupe Mountains by 2018 on the 20% worst days are necessary to achieve reasonable progress. EPA’ s premature decision to exempt BART-eligible EGUs in Texas from BART will put the burden of reaching those goals on non-EGU sources.

This makes little sense because Texas’s BART -eligible EGUs as a group are a significant contributor to regional haze at Big Bend, Guadal upe Mountains, and other Class I areas in the region. See, e.g. , Texas SIP, App. 7-2. Moreover, BART controls at EGUs, such as SCR and modern scrubbers, are proven and readily availa ble technologies that significantly reduce emissions of visibility-impairi ng pollutants from a select number of sources. As a result, requiring BART at Texas’s BART-eligible EGUs woul d provide significant vi sibility benefits at Big Bend, Guadalupe Mountains, and other Class I areas, and BART controls would go far toward ensuring that reasonable progress is achieved. See infra at 17–18.

In this proposed rule, however, EPA has predetermined that BART controls will not be required at any power plants in Texas, without any analysis of how this will affect achievement of natural visibility conditions by 2064. Consequently, inst ead of utilizing proven and readily-available

BART controls at a select number of Texas EGUs, the proposed partial FIP for Texas would

force EPA to secure the nece ssary visibility improvements from controls on other source categories, which will be a larger and mo re disparate group of sources to control.

[FN 13] The 2155 and 2081 “natural” visibility goals in the Texas region al haze SIP are in factunrealistically early, because they are based on an arbitrary and inflated a ssessment of the baseline cond itions. Texas departed from EPA’s default values and methodology for calculating natural visibility conditions at Guadalupe Mountains and Big Bend, and employed a methodology the Federal Land Managers criticized as “uncertain” and flawed. See Texas SIPPage 40 of 151 at 5-3 to 5-6; SIP App. 5-2 at unnumbered page 3. The result is a less-stringent visibility goal for the overall Texas SIP. For example, if Texas had used EPA’s natural visi bility values, visibility conditio ns at Guadalupe Mountains would ultimately have to improve from 17.2 dv visibility impairment to 6.8 dv impairment on the 20% worst days. But by using an artificially-elevated 12.3 dv “natural” visibility value for the 20% worst days, far less overall improvement in visibility is required. See Texas SIP at 5-3 to 5-6, App. 5-2 at Figure 5-2. Because the Texas SIP utilized artificially-elevated levels of “natural” visibility conditions, accordin g to EPA’s values, the SIP would not achieve true natural visibility at Guadalupe Mountains and Big Bend until approximately 2215 at Big Bend and 2166 at Guadalupe Mountains. [FN 14] At Big Bend, baseline conditions on the 20% worst da ys are 17.3 dv, and the uniform rate of progress to achieve EPA’s default natural visibility conditions by 2064 re quires an improvement to 15.0 dv by 2018. Texas SIP, App. 5-2 at Figure 5-1. Thus, the regional haze plan fo r Texas must improve visibility by 2.3 dv by 2018 at Big Bend to make reasonable progress. At Guadalupe Mountains, baseline conditions on the 20% worst are 17.2 dv, and the uniform rate of progress to achiev e EPA’s default natural visibility conditio ns by 2064 requires an improvement to 14.8 dv by 20 18. Texas SIP, App. 5-2 at Fi gure 5-2. Thus, the regional h aze plan for Texas must improve visibility by 2.4 dv by 2018 at Guadalupe Mountains to make reasonable progress.

Commenter: National Parks Conservation Association and Earthjustice

Comment: BART is required to meet Reasonable Progre ss Goals for Class I Areas in Florida The CAA requires Florida to submit a state impl ementation plan that co ntains “such emission limits, schedules of compliance and other measur es as may be necessary to make reasonable progress toward meeting the national goal” of returning Class I areas to natural visibility conditions. 42 U.S.C. § 7491(b)(2). Furthermore, EPA has interpreted the statute to mean that each state must establish a reasonable progress go al for each Class I area within its borders, 40 C.F.R. § 51.308(d)(1), and then, in its long- term strategy, adopt enforceable emissions limitations and other measures “as necessary to achieve the reasonable progress goals.” Id. § 51.308(d)(3). A State must require that “all necessary emissions re ductions take place during the period of the first long-term strategy for region al haze.” 40 C.F.R. § 51.308(e) (2)(iii). The end of the first long-term strategy period for regiona l haze is 2018. For Class I areas outside a state’s border, the state has an obligation to ensure it adop ts controls necessary to ensure its share of the pollution reductions that are requi red in order to meet the reasonable progress goals set for the subject Class I area. Id.

Florida’s submittal asserts that, after sufficient m odel adjustments, it is just barely meeting the uniform rate of progress in its three Class I ar eas where visibility is an important value. However, this appears to be untrue on its face – for St. Marks, the 2018 predicted visibility is higher than the 2018 uniform rate of progress. [FN 12] More importantly, these reasonable progress goals reflect a circumstance that is not a reality. For EGUs , the modeling assumes implementation of CAIR (or its equivalent), which – unlike CSAPR – regulated both NOx and

SO 2 year-round in Florida. This mismatch between the modeling supporting reasonable progress goals and EPA’s proposed determination illustra tes why these elements are fundamentally impossible to decouple. [FN 13]

Thus, without the previously relied upon SO 2 emission reductions or applicability of a year round NOx reductions it is impossible to say that Florida will meet the uniform rate of progress at its Class I areas. Similarly, neither the state nor EPA has demonstrated that CSAPR will make greater reasonable progress at Florida’s Class I areas. In the absence of this demonstration CSAPR fails the regulatory test required for an alternative BART program to exempt sources from source specific BART limits.Page 41 of 151 [FN 13] See Earthjustice’s Comments on Proposed Partial Regional Haze FIP for Texas, filed February 28, 2012.

Commenter: Kristin A. Henry, Sierra Club

Comment:

Since EPA Has Not Evaluated or Determined Re asonable Progress Goals for Indiana, It Cannot Reasonably Conclude that CSAPR Achieves Greater Reasonable Progress than BART. EPA’s proposed better-than-BART finding is improper because it looks at BART in isolation, without reference to the long term strategy that BART and all of other measures incorporated into regional haze plans are intended to achieve . Without defining or ev en referencing those goals, EPA cannot reasonably conclude that CSAP R achieves reasonable progress at all, much less greater reasonable progre ss than BART under 40 C.F.R. § 51.308(e)(3). Therefore, EPA cannot partially approve a FIP for Indiana that rely on CSAPR as a substitute for BART.

As discussed above, each regional haze SIP or FI P must contain the entirety of the state’s comprehensive plan for attaining natural visi bility conditions by 2064, based on each state’s reasonable progress goals, a long term strate gy to meet those goals , and installation and operation of BART. 

### See CAA § 169A(b)(2)(A); 42 U.S.C. § 7491(b)(2)(A); 40 C.F.R. § 51.308(d), (e). Because these components are inte rrelated, EPA cannot approach regional haze, as it did, in a piecemeal fashion. Mo re specifically, because BART is critical to the state’s ability to reach its reasonable progr ess goals, EPA cannot exempt sources from BART without considering how the exemption will affect the overarching reasonable progress mandate. 

### See CAA § 169A(b)(2)(A), 42 U.S.C. § 7491(b)(2)(A). Concluding th at CSAPR achieves greater reasonable progress toward achieving natural visibility conditions than BART without regard to defined reasonable progress goals is arbitrary and contrary to law under the Clean Air Act and implementing federal regulations. EPA cannot evalua te individual components of a regional haze plan in isolation without reference to whether reasonable progress will be achieved collectively by the sum of the parts of each plan. Thus, beca use EPA has failed to evaluate what effect exempting EGUs in Indiana from BART woul d have on the remaining components of its regional haze SIPs, including the state’s re asonable progress goals, EPA’s proposed limited partial FIP for Indiana violates the CAA a nd the Haze Rule. 40 C.F.R. § 51.308(d),(e)(3).

The D.C. Circuit has explained that the overarc hing mandate of the Act and the Haze Rule is a state-wide regional haze plan th at achieves reasonable progress toward the 2064 natural visibility goal. 

### Utility Air Regulatory Group v. Envtl. Prot. Agency , 471 F.3d 1333, 1340 (9th Cir. 2006); 

### Ctr. for Energy and Econ. Dev. v. EPA , 398 F.3d 653, 660 (D.C. Cir. 2005). To meet the 2064 goal, a regional haze plan involves two in tertwined components: BART controls and a long-term strategy to achieve reason able progress toward that goal. 

### See 42 U.S.C. § 7491(b)(2) (“each applicable implementation plan” must “contain such emission limits, schedules of compliance and other measures as may be necessary to make reasonable progress.”); 40 C.F.R. § 51.308(d)(1) & (3).

Accordingly, neither EPA nor a state can eval uate a regional haze plan’s BART requirements and long-term strategy in isolati on from one another. In order to set the reasonable progress goals and develop a long-term strategy to meet those goals, EPA or the state must, among other things, determine a “uniform rate of progress” requi red to meet the state’s goals. 40 C.F.R. §Page 42 of 151 51.308(d)(1)(B). As part of that cal culation, EPA or the state must de termine “the uniform rate of improvement in visibility 

### and the emission reduction meas ures needed to achieve it for the period covered by the implementation plan.” 

### Id . (emphasis added). Because BART is a critical component to setting the appropriate limits for ac hieving reasonable progre ss, the states or EPA cannot exempt sources from the Haze Rule’s BA RT requirements without any consideration of how this will affect the overarching reasonable progress mandate. This is true as evidenced by

the fact that the D.C. Circuit Court of Appeals has explained th at even if EPA has determined that a program is “better than BART,” if at th e state level that same program is not likely to achieve the State’s own reasonable progress goals, the state must take other measures that will achieve those goals at each Class I area. 

### See Utility Air Regulatory Group v. EPA , 471 F.3D 1333, 1340 (D.C. Cir. 2006).

Despite these requirements, EPA’s proposed partial FIP for Indiana consists of only two to three sentences, neither of which mentions a long-te rm strategy or reasonabl e progress goals, nor how the exemption of all EGUs would affect su ch a strategy or goals if they existed. 

### See 76 Fed. Reg. at 82232. Absent a uniform rate of progress calculation, long-term strategy, and reasonable progress goals for Indiana, EPA has no rationa l basis to determine that CSAPR emissions controls are sufficient to comply with the CAA and Haze Rule’s reasonable progress mandate. Moreover, EPA’s regional haze regulations manda te that for a state’s regional haze SIP to include an emissions trading program such as CSAPR as the BART alternative towards achieving reasonable progress, the SIP must al so include certain elements concerning the emissions covered by that trading program’s cap. 40 C.F.R. § 51.308(e)(2)(vi). This includes “compliance provisions prohibiting a source from emitting a total tonnage of a pollutant that exceeds the tonnage value of its allowance holdi ngs, including the methods and procedures for determining whether emissions exceed allowan ce holdings.” 40 C.F.R. § 51.308(e)(2)(vi)(I). However, here, EPA’s approval of CSAPR as the BA RT alternative in Indiana is occurring in the vacuum of a limited FIP approval which approves the BART alternative, yet, sets no additional conditions on application of that program to BA RT-eligible sources. Ind eed, EPA’s decision that

CSAPR is a “better than BART” alternative has been made in isolation from the many other requirements and conditions of Indiana’s SIP—provi sions which must necessarily be considered at the time any BART alternative determination is made. Because the BART alternative is completely divorced from the overall regional haze implementation process and resulting plan, which includes reasonable progre ss goals and long-term strategies, it is impossible to ensure that CSAPR will achieve greater reasonable progress.

Regional haze SIPs cannot be segmented so that only portions of the plans are approved at a particular time. These SIPs are singular, compre hensive documents that must achieve reasonable progress through BART, a long term strategy, and other controls. 

### See 40 C.F.R. § 51.308(b) & (f). EPA’s own guidance rejects the idea that it is permissible to issue partial or piecemeal approval of SIPs that are si ngular, comprehensive documents. 

### See Memorandum from John Calcagni, Director, Air Quality Mgmt. Div., O AQPS, to Air Div. Directors, EPA Regional Offices, at 2 (1992) (stating that “[f]or example, EPA cannot approve part of a submittal that specifies control measures and disa pprove the part that specifies th e test methods associated with those control measures”) available at http://www.epa.gov/ttn/caaa/t1/memoranda/siproc.pdf

. According to this guidance, EPA can issue par tial approvals only in ce rtain situations. For example, where a state submits “groups of rules” together, “[t]he EPA can approve some of thePage 43 of 151 rules and disapprove the rest as l ong as the rules that are disappr oved do not affect those that are approved.” 

### Id . Where the rules or other proposals ar e not separable, however, EPA may not segment the analysis. 

### Id . [FN 8]

Here, as explained above, all of the required components of a Re gional Haze SIP or FIP affect one another, are part of a “singl e administrative action”, and EPA mu st evaluate them together to determine if the partial FIP complies with the CAA and the Haze Rule. Therefore, EPA’s proposed FIP for Indiana is improper. EPA must make a BART-alternative determination at the same time it reviews and approves Indiana’s re visions to its regional haze SIP that address regional haze for the first im plementation period. [FN 9]

[FN 8] This is consistent with Section 110(k) of the Clean Air Act, which allows for partial approval and partial disapproval of a SIP revision, but does not suggest that a portion of a single revision can simply be ignored when issuing such partial approvals or disapprovals. 42 U.S.C. § 7410(k)(3) (“If a portion of the plan revision meets all the applicable requirements of this chapter, the Administrator may approve the plan revision in part and disapprove the plan revision in part.”). [FN 9] EPA currently has two dockets open which piecemea l Indiana regional haze rules. Docket number EPA-HQOAR-2011-0729, which deals with the BART alternative for EGUs and Docket number EPA-R05-OAR-2011-0080,

which deals with non-EGUs.

Commenter: Kristin A. Henry, Sierra Club

Comment: Indiana’s Regional Haze Plan Does not Comply with MANE-VU Region’s Request and Several Class I Areas in that Region Will Not Meet the Glidepath The visibility modeling results performed by the stat e of Indiana show that the rates of visibility improvement in several Class I areas impacted by Indiana are expected to be less than the glidepath (i.e. further improvement needed), in 2018. These include Lye Brook Wilderness Area, Vermont, Isle Royale National Park and Seney National Wildlife Refuge Wilderness Area in Michigan, Boundary Waters Canoe Wilderness Ar ea and Voyageurs National Park in Minnesota, and Acadia National Park, Maine. Indiana Region al Haze Rule at 28. A few of these Class I area are in the MANE-VU Region, which has requested th at states, such as Indiana, whose emissions impact Class I Areas in the MANE- VU region, take the following steps: • Application of BART. • 90 percent (or greater) reduction in SO 2 emissions from each of the EGU stacks on MANE-VU‘s list of 167 stacks (located in 19 states), whic h reflect those stacks determined to be reasonably anticipated to cause or contribute to visibility impairment in the

MANE-VU Class I areas. • 28 percent reduction in non-EGU (poi nt, area, on-road, and off-road) SO 2 emissions relative to on-the-books, on-the-way 2018 projections.

• Continued evaluation of other meas ures, including measures to reduce SO 2 and NOx emissions from coal-burning facilities a nd promulgation of new source performance standards for wood

combustion. • Further reduction in power plant SO 2 (and NOx) emissions beyond CAIR (Indiana Regional Haze SIP at 40.)

With regards to the 167 stacks determined to be r easonably anticipated to cau se or contribute to visibility impairments in the MANE-VU Class I Areas, 15 stacks are at 9 plants in Indiana. Indiana Haze SIP at 40. In respons e, Indiana DEM noted that a number of the stacks had alreadyPage 44 of 151 installed or were planning to in stall scrubbers because of CAIR , which Indiana DEM deemed to be sufficient progress towards M ANE-VU‘s request. Id. at 37. EPA’s proposed partial FIP for Indiana simply replaces CSAPR for CAIR and does not change the state’s analysis. See 76 Fed. Reg. at 82232. Indiana DEM and EPA’s assumpti on that MANE-VU Region’s concerns would be addressed is inadequate because it fails to mention that three of the plants identified by MANE-VU – Tanners Creek, Frank E. Ratts, an d Wabash River Generating Station – do not have scrubbers and do not have binding requiremen ts to install them. See Indiana Regional Haze SIP at Table 11, pg. 47, 50.11 Combined, those thr ee plants emitted more than 75,240 tons of

SO 2 in 2010. No explanation is provided as to why those plants should not be required to achieve

90% SO 2 reductions in order to re duce visibility impacts.

EPA may respond that certain planned actions will address these emissions. Indiana acknowledges that Wabash intends to address its SO 2 emissions through CAIR Allocation, that Tanners Creek will “[b]urn only coal with no mo re than 1.2% sulfur content annual average,” and that Frank E. Ratts must comply with “U .S. EPA settlement, plantwide from 2009 levels 42% reduction - 2012, 58% - 2014.” See Indiana Regional Haze SIP at Table 11, pg. 47, 50. Each of these is legally deficient to meet the re quirements of the Haze Rule as the Tanners Creek obligation to burn low sulfur coal is not legally binding and will not reduce SO 2 emissions by 90%, Wabash could buy allowances under the CS APR trading program instead of installing control technology that would reduce emissions by 90%, and Frank E. Ratts settlement agreement does not require the installation of a scrubber that would reduce emissions by 90%.

Commenter: Earthjustice on behalf of a number of organizations

Comment: EPA Cannot Approve FIPs without Ensuring Reasonable Progress EPA cannot partially reject regional haze SIPs and propose partial regional haze FIPs for Alabama, Florida, Georgia, Indiana, Iowa, L ouisiana, Michigan, Mississippi, Missouri, North Carolina, Ohio, Pennsylvania, S outh Carolina, and Texas. [FN 111] In proposing to reject the SIP and issue partial FIPs, EPA illegally and arbitr arily addressed only part of the regional haze equation, BART, without accounting for reasonable progress goals in these states and whether they can be achieved without the emissions re ductions at power plan ts that BART would provide. See 76 Fed. Reg. at 82221. Each regional haze SI P or FIP must ensure reasonable progress with a comprehensive strategy that includ es an array of measures that collectively put the state on a glide path toward rest oration of natural visibility by 2064. See CAA § 169A(b)(2)(A), 42 U.S.C. § 7491(b)(2)(A); 40 C.F. R. § 51.308(b) (requiring states to submit regional haze plans addressing the reasonable pr ogress goals and long term strategy as required in section (d) and BART as required in section (e)).

Thus, in approving each plan, EPA must determine th at the sum of its parts will result in required visibility improvements. EPA cannot evaluate in dividual components of a regional haze plan in isolation, unmoored from the fundamental question whether reasona ble progress will be achieved. Under the Clean Air Act and implementi ng federal regulations, reasonable progress is the cornerstone and over-arching mandate of each statewide regional haze plan. See UARG , 471 F.3d at 1340. Indeed, among the “core requirements ” of each regional haze plan are the reasonable progress goals and the long term strategy to attain those goals. 40 C.F.R. § 51.308(d)(1), (3). BART, as one of the statutor ily enumerated means of achieving reasonablePage 45 of 151 progress, must also be evaluated alongside th e reasonable progress goals and long term strategy.

See CAA § 169A(b)(2)(A), 42 U.S.C. § 7491(b)(2)(A).

[FN 111] EPA cannot approve the proposed FIPs for the additional reasons set forth in comments on EPA‘s proposed approval of regional haze SI Ps for Ohio, Minnesota, Pennsylvania, and Indiana that were submitted on behalf of conservation groups including NPCA and the Sierra Club. Those comments are incorporated here by reference. Likewise, EPA cannot approve the proposed FIPs for the additional reasons set forth in state-specific comments on this proposal that have been submitted concurrently on behalf of conservation groups including NPCA

and the Sierra Club. Those comments also are incorporated here by reference.

EPA Response: Please see section II.B.4 of the preamble to the final rule for EPA’s response to the comments concerning the relationship between the Transp ort Rule, BART, and reasonable progress.



### XI. Deficiencies in EPA’s Technical Analysis

1. Misinterpretation of the Two

­ Pronged Test

Commenter: Willie R. Taylor, Director, Office of Environm ental Policy and Compliance, U.S. Department of the Interior

Comment: Section III.C.I of the preamble to the draft not ice of proposed rulemaking (NPRM) cites the Regional Haze Rule at 40 CFR 51.308(e)(3) to desc ribe EPA's criteria for comparing visibility progress of an alternative program to BART. The regulatory text from 40 CFR 51.308(e)(3) sets two specific criteria as:

(3) A State which opts under 40 CFR S1.308(e)(2) to implement an emissions trading program or other alternative measure rather than to require so urces subject to BART to install, operate, and maintain BART may satisfy the final step of the demonstration required by that section as

follows: If the distribution of emissions is not substantially different than under BART, and the alternative measure results in greater emission reductions, then the alternative measure may be deemed to achieve greater reasonable progress. If the distribution of emi ssions is significantly different, the State must conduct dispersion mode ling to determine differences in visibility between BART and the trading program for each impacted Class I area, for the worst and best 20 percent of days. The modeling would demonstrate "greater reasonable progr ess" if both of the following two criteria are met:

(i) Visibility does not declin e in any Class I area, and

(ii) There is an overall improvement in visi bility, determined by comparing the average

differences between BART and the altern ative over all affected Class I areas.

Although we understand EPA's explanation in th e NPRM preamble describing its lst prong test, we don't agree that it meets the rule requirement as quoted above. As described in the NPRM, EPA applied the 1 st prong test only to ensure that th e Transport Rule alone, without any consideration of the replaced BART , would not have a negative eff ect on visibility at any Class I area. In our view, 40 CFR 51.308(e)(3 ) requires that the evaluation must be based on differencesPage 46 of 151 in visibility between the BART and trading pr ograms. We recommend th at EPA reconsider how it is applying the 1 st prong criteria, or alternatively reword the above language to better match its interpretation.

We also do not agree with EPA's 2 nd prong interpretation. The evalua tion method requires States

to either evaluate total emissi on differences between BART and a trading program or conduct air quality modeling to evaluate "ove rall improvement" at affected areas. By expanding the "overall improvement" area to include all eastern or all continental U.S. Class I areas, EPA has created the unexpected consequence of sugge sting that no control in some states is better than, or as good as, significant controls which would have resulted from BART. EPA modeling results

smooth out individual Class I area "declines" as well as downplay the significance of large emission reductions on the western edge that would result from presump tive BART controls.

As examples, Kansas completed BART determinations for EGUs subject to BART in its Regional Haze State Implementation Plan, and EP A has proposed to approve Kansas' Plan (76 FR 52604). Yet Kansas' emissions allowance under the Transport Rule will not require these EGUs to install controls; thus in this case, emissions under the Transport Rule are greater than emissions under BART. Similarly, in Nebraska, Ge rald Gentleman Generating Station is subject to BART and meets the Appendix Y criteria fo r presumptive controls (although the state is currently not requiring c ontrols for BART). Gerald Gentleman has been identified as a cause of visibility impairment at Badlands and Wi nd Cave National Parks in South Dakota, yet Nebraska's allocation under the Transport Rule will not require any SO 2 control for this presumptive BART source. Lesse r-or-no additional controls unde r the Transport Rule cannot produce better visibility progress than greater em ission reductions of, at a minimum, presumptive BART. EPA modeling indicates that visibility on the 20% worst days at Badlands, Wind Cave, and Theodore Roosevelt National Parks is projecte d to be poorer under the Transport Rule than

under BART. We recommend that EPA reconsider the 2 nd criteria as described above and evaluate how individual State adoption of the Tran sport Rule will impact the Class I areas that

each State's emissions affect.

EPA Response: The EPA disagrees with the commenter’s assertio n that the two-pronged test was misinterpreted. The EPA established the two-pronged test in orde r to evaluate whether an alternate program could achieve greater reasonable progress towards visibility improvement than source-specific BART. The EPA’s authority to establish alternat ives to BART in the regional haze program and the specific methodology outlined for assessing such alternatives have been previously challenged and upheld by the D.C. Circuit. In Utility Air Regulatory Group v. EPA, 471 F.3d 1333 (D.C. Cir. 2006) the court spec ifically upheld our determination that states could rely on CAIR as an alternative program to BART for EGUs in the CAIR-affected states. The EPA has demonstrated that the trading pr ograms of Transport Rule also me et the test as an alternative program to BART.



### 2. Averaging Across All Class I Areas

Commenter: Earthjustice on behalf of a number of organizations

Comment:Page 47 of 151 EPA Improperly Averaged Visib ility Impacts Based on Emissi on Reductions at All Sources

across All Class I Areas Under the pre-existing regulations that purport to a llow for implementation of alternative programs in place of BART, an agency seeking to impose an alternative to source-specific BART must demonstrate that “the emissions trading program or other alternative measure will achieve greater reasonable progress than would have resulted from the installation and operation of BART at all sources subject to BART in the State and covered by the alternative program.”40 C.F.R. § 51.308(e)(2)(i) (emphasis added). This demonstration requires that the entity proposing the

alternative calculate BART and the emission reductions achievable from BART at each BARTeligible source that would be covered by the alternative. Id. § 51.308(e)(2)(i)(C); see also Am. Corn

Growers Ass’n v. EPA , 291 F.3d 1 (D.C. Cir. 2002) (expressly requiring states, in determining what constitutes the best available retrofit control, to enga ge in a source-by-source analysis of the visibility impacts achievable from application of BART); 40 C.F.R. § 51.309(d)(2) (explaining that where a state within the Grand Canyon Visibility Transport Region elects to adopt the Grand Canyon Visibility Commission‘s recommendations for the regi on in lieu of complying with the requirements, including BART, under § 51.308, it must submit a plan to EPA that projects visibility conditions at

each of the 16 Class I areas in the transport region, based on consultation with other transport region states). As the Forest Service has affirmed in its comments to EPA, “[T]he appropriate analysis technique should limit the geographic scope of both “affected Class I areas and modeled emissions relative to each state as is implied in 40 C.F.R. § 51.308(e)(3). ” USFS Comments at 1. Thus, to be consistent with its existing rules, EPA must determine whether a given program is better than BART on a state-by-state basis based on a source-by-source five-step BART analysis, a requirement the agency has arbitrarily refused to follow as it steps into the shoes of the states.

The failure to look at CSAPR versus BART on a st ate-by-state basis preclude s leaves states that intend to opt out of BART in reliance on CSAP R without the requisite showing that CSPAR is

“better than BART. ” See id. at 7 (explaining that “[f] rom a regulatory perspective, ” EPA should look at impacts of the alternative as would the states because the ru le allows the states to opt out of the individualized analysis). Because this rulemaking essentially allows for the interpretation that the Transport Rule is a BART alternative pr ogram that a State may opt to participate in and rely upon to satisfy the 308(e) requirements, the dispersion modeling conducted by EPA should

have identified the “affected” Class I areas relativ e to each State in the Transport region rather than simply looking at the aggregate across e ach “affected” scenario that was analyzed. Id.

In fact, the failure to look across all Class I areas on a state by state basis poses a serious threat to visibility in Class I areas. As discussed belo w, by averaging results across the entire United States, EPA was able to ignore CSAPR‘s infe riority to BART at many Class I areas.

Averaging Visibility Impacts Across the Entire Un ited States or Within Regions Masks CSAPR’s Failure to Achieve Greater Reasonable Progress at Many Class I Areas in Many States Instead of evaluating whether CSAPR achieved greater reasonable progress than BART on a state-by-state, source-by-source basis, EPA a pproached the second prong of the reasonable progress test, 40 C.F.R. § 51.308(e)(3)(ii) - whic h asks if the altern ative provides greater visibility improvement at all affected class I areas - by spatially averaging the visibility reductions seen under each program across all Cla ss I areas in the CSAPR region and all Class I areas the nation. Averaging across this expans ive area masks the failure to obtain greaterPage 48 of 151 visibility improvements that are possible with th e application of BART bo th regionally and state by state.

For example, EPA‘s own modeling analysis show s that “Nationwide BART” [FN 20] scenario provides greater visibility impr ovement than the alternative “T ransport Rule + BART-elsewhere ” scenario in many Class I Areas across an entire region. [FN 21]

All of these Class I areas that EPA‘s modeling predicted would experience better visibility improvement under Nationwide BART are west of the Mississippi River, covering much of the central plains. Id. Yet, because EPA chose to look at spa tial averages across all Class I areas in the CSPAR region, EPA ignored th e fact that CSAPR is decide dly not better than BART in many affected Class I Areas in many states. In ot her words, EPA‘s approach sacrifices progress on visibility in the central plains, [FN 23] a result the USFS forecast to EPA. See USFS Comments at 8 (“The net effect of this proposal creates subregions within the Transport Rule

domain where emissions reducti ons under CSAPR would be signifi cantly less than under BART,

“ including those in th e “Mississippi-West ” subregion where the USFS predicts that “the Transport Rule domain will have SO 2 emissions 164% greater under CSAPR than would have been assumed by presumptive BART. ” ).

The above example illustrates how spatial averaging can be used to manipulate conclusions as to whether CSAPR is better than BART. For example, if EPA chose to average visibility at the 27

Class I areas west of the Missi ssippi River but east of the Roc ky Mountains - areas that for practical purposes should be considered separately from the eastern scenario because they react differently to sulfate aerosols - EPA would ha ve found based on its own data that “Nationwide BART” is superior to the “Tra nsport Rule + BART-elsewhere ” on the best 20% days. See Gebhart Report at 8-9 & Table 3-2. Again, the USFS confirms this point, stating that “BART

controls for SO 2 are an essential component to meeting the subregional progr ess goals for the Class I areas in and surrounding the “Mississippi-West” subregion. ” USFS Comments at 9.

This problem in the “Mississippi-West ” region underscores the importance of evaluating the performance of alternative programs as compar ed to BART across a more limited geographic

area i.e. on a state-by-state basis as governing regula tions require. EPA cannot discount the manyPage 49 of 151 instances in which BART yields greater progr ess toward visibility goals than CSAPR by averaging visibility impacts across the enti re CSAPR region, much less the entire country. Instead, EPA must determine whether a given pr ogram is better than BART on a state-by-state basis having considered what an alternative w ould achieve in the way of emissions reductions

relative to BART at each relevant source. Not onl y has EPA failed to undertake this analysis, any such appropriate analysis would preclude the co nclusion that CSAPR is better than BART, as the above examples confirm. EPA offers no lawful or reasoned explanation for departing from the approach required in its exis ting rules, nor can it do so.

[FN 20] The “Nationwide BART” scenario estimated the effect of applying BART controls at specific BARTeligible source across the entire nation, including sources in the CSAPR region in the east and sources in the nonCSAPR region in the west. [FN 21] EPA’s “Transport Rule + BART-elsewhere” scenario estimated the effect of relying on CSAPR, or the Transport Rule, in CSAPR states, yet applying BART at BART-eligible sources outside of the CSAPR region. [FN 22] It is not surprising that visibility in the ce ntral plains will suffer if CSAPR is substituted for BART;

emission allocations under CSAPR were allotted based on th e impact that each state had on the ability of downwind states in the CSAPR region, which is predominantly east of the central plains, to attain and maintain the fine particulate and ozone NAAQS. For this reason, certain CSAPR border states such as Nebraska and Minnesota, which were found to impact attainment in only one county in Wisconsin, are able to emit more than other CSAPR states, sacrificing visibility cond itions west of the CSAPR region. See U.S. EPA, Cross-State Air Pollution Rule (CSAPR), Where You Live, http://www.e pa.gov/airtransport/whereyoulive.html (showing that emissions from Nebraska and Minnesota are only linked to nonattainment at one point in Wisconsin).

EPA Response: Specific criteria for determining if an alternat ive measure achieves gr eater reasonable progressthan source-specific BART are set out in the Regional Haze Rule at §51.308(e)(3). The “betterthan-BART” test may be satisfied as follows: If the distribution of emissi ons is not substantially different than under BART, and the alternative measure results in greater emission reductions, then the alternative measure may be deemed to achieve greater reasonable progress. If the distribution of emissions is sign ificantly different, then states are directed to conduct an air quality modeling study to determine differences in visibility between BART and the alternative program for each impacted Class I area for the wors t and best 20 percent of days. A test with the following two criteria (the “two-p ronged visibility test”) would de monstrate “greater reasonable progress” under the alternative program if both prongs of the test are met:

- Visibility does not declin e in any Class I area, and

- There is an overall improvement in visibi lity, determined by comparing the average

differences between BART and the altern ative over all affected Class I areas.

Thus, the regional haze rule requires that the aver age difference in visibility improvement at all affected Class I areas be great er under the alternate program. As demonstrated by the technical analysis supporting this rule, th e EPA has determined that the trading programs of the Transport

Rule meet this test.

Commenter: Earthjustice on behalf of a number of organizations

Comment: Arithmetic Averaging Cannot Accurately Dem onstrate Whether CSAPR Provides Greater Visibility Benefits than BART EPA also improperly used a simple arithmetic mean to conclude that visibility improvements in the aggregate would be greater under CSAPR than BART per 40 C.F.R. § 51.308(e)(3)(ii).Page 50 of 151 Whether improperly averaging across all the aff ected Class I areas or doing so in connection with a state-by-state evaluation, relying on an arithmetic mean is likely to misconstrue progress by heavily weighting outlier results such as large emissions reductions at a single area. In other words, significant improvements in a small numb er of Class I areas—even on just a few days each year—have apparently skewed EPA‘s averagi ng to yield a conclusion that visibility is improving notwithstanding lackluster progress in a majority of Class I areas. EPA‘s analysis must correct for this fundamental problem.

EPA Response: The BART rule (§ 51.308(e)(3)( ii)) states that there shoul d be an overall improvement in visibility, determined by comparing the average differences between BART and the alternative

over all affected Class I areas . EPA applied the rule methodology and calculated the average difference in visibility improvement over all affect ed Class I areas. As noted in the preamble, we continue to find that the “Transport Rule + BART -elsewhere” case is bette r than the “Nationwide

BART” case for both the 140 nationwide Class I areas and the 60 Eastern Class I areas.



### 3. Comparison of Earthjustice’s BART+CSAPR Scenario with CSAPR for

Minnesota BART units

Commenter: Earthjustice on behalf of a number of organizations

Comment: On a statewide basis, the alternative BART + CSAPR scenario produces better results than the “Transport Rule + BART-elsewhere ” scenario. For example, the Conservation Organization‘s Technical Support Attachment to Earthjustice’ s Comments on the Proposed Approval of the Minnesota State Implementation Plan for Re gional Haze (“Minnesota Technical Support ” ) [FN 31] compared the subset of BART-subject EGUs in Minnesota unde r the Nationwide BART scenario to EPA‘s CSAPR emissions projections for the same units to estimate whether CSAPR alone can accomplish both its own goals and those of the regional haze program. [FN 32]

Because it is reasonable to assume that CS APR emissions predictions for non-BART-subject

EGUs will be similar under both the CSAPR scen ario and the Nationwide BART scenario at non-BART eligible sources, it follows that CSAP R + BART will be better than CSAPR alone if BART provides greater emissions reductions than CSAPR at BART-subject sources. To this point, Table 3 below demonstrates that BART w ould result in significantl y fewer emissions at BART-subject units than the emissions EPA projected for those units under CSAPR.Page 51 of 151 [FN 31] See Minnesota Technical Support at 18-20. Earthjustice‘ s comments and the Techni cal Support Attachment, which were submitted on behalf of National Parks Conservation Association, the Minnesota Center for Environmental Advocacy, the Friends of the Boundary Waters Wilderness, Vo yageurs National Park Association, and the Sierra Club, were filed on February 24, 2012 in Docket No. EPA-R05-OAR-2010-0037. Those comments and the Technical Support Attachment ar e incorporated by reference herein. [FN 32] The Technical Support Attachme nt recognized the difficulty of predicting emissions without running the Integrated Planning Model. Nonethel ess, this example gives an estimate of whether CSAPR + BART will reduce emissions over CSAPR alone, thereby providing for greater reasonable progress than CSAPR.

EPA Response: The EPA does not find this comparison to be rele vant. An appropriate basis for comparison must include the entire EGU population, not just those subject to BA RT. Moreover, the appropriate comparison , as demonstrated by EPA’s analysis, is based on an air qua lity evaluation of the overall visibility impacts of the alterna tive program on affected Class I areas over the entire region and multiple states, not a comparison of emissions from selected sources in one or a few

states

.



### 4. EPA did not Apply SO 2 Controls to Units Smaller than 100 MW

Commenter: Earthjustice on behalf of a number of organizations

Comment: EPA Unlawfully Assumed that SO 2 BART Controls Would Only A pply to EGUs with Greater than 100 MW Generating Capacity

EPA stated that “it was assumed that the th reshold for BART-eligibi lity was 100 MW for SO 2 and 25 MW for NOx and no sources were eliminat ed based on their annual total emissions. Appendix A lists the EGUs that were assumed to be BART-subject for the purpose of thisPage 52 of 151 analysis. ” See TSD at 4. In our review of EPA‘s assumed SO 2 emission rates below, it was assumed that all EGUs listed in Appendix A of EPA‘s Technical Support Document for Demonstration of the Transport Rule as a BART Alternative were assumed to be BART-subject in EPA’s analysis, as stated in the Technical Support Document a nd at Appendix A. However, to the extent that EPA may argue that it only a ssumed EGUs over 100 MW in generating capacity were subject to BART for SO 2 the application of such a generating capacity threshold is arbitrary and unjustified. The only size limitation on BART-eligib ility is for fossil-fuel fired steam electric plants, which must have more than 250 million Brit ish thermal units per hour heat input, which is approximately equivalent to about 25 MW generating capacity.[FN 37] See CAA §§ 169A(b)(2), (g)(7), 42 U.S.C. §§ 7491(b)(2), (g)(7); see also 40 C.F.R.§51.301 (defining “existing stationary facility ” and BART-eligible source ” ). Nowhere in the statute or the implementing regulations is BART-eligibility limited to units less than 100 MW for SO 2 In fact, all visibility impairing pollutants from a source are modeled together to determine whether the source is subject to

BART.

In fact, there are several examples of units of less than 100 MW genera ting capacity that have been determined to be subj ect to BART, and that have been required to install SO 2 scrubbers to comply with BART. For example, Silver Bay Boil er 2 in Minnesota, which impairs visibility more than any other BART-eligible EGU in the state, [FN 38] only has a generating capacity of 69 MW. Silver Lake Unit 4 in Minnesota, which has a generating capacity of 59.2 MW, was also determined to be subject to BART and required to install a scrubber to comply with BART.[FN 39] Martin Drake Unit 6 in Colorado has a genera ting capacity of 77 MW and was determined to be subject to BART and require d to install a new spray dryer to meet BART.[FN 40] Based on the foregoing, it is improper for EPA to im pose a 100 MW generating capacity floor on SO 2 BART, a flaw that renders EPA‘s Nationwide BART 2014 emissions scenario arbitrary and

unlawful.

[FN 37] Based on an assumed heat rate of 10,000 Btu/kWhr. [FN 38] See December 2009 Minnesota Regional Haze State Implementation Plan, Table 9.2 (at 68), available at http://www.pca.state.mn.us/index.php/air/air-quality-and-p ollutants/general-air-quality/minnesota-regional-hazeplan.html). [FN 39] Id. Table 9.4 (at 71). [FN 40] See Colorado Visibility and Regional Haze State Implem entation Plan for the Twelve Mandatory Class I Federal Areas in Colorado, Approved January 7, 2011, Table 6-2 (at 43), available at http://www.cdphe.state.co.us/ap/Region alHaze/RHSIPFINAL07JAN2011.pdf).

EPA Response: EPA continues to believe that it is unlikely that add-on controls would be required as BART for EGU units having a capacity less than 100 MW. EPA believes this to be an appropriate assumption due to the higher costs of controlling these units, which generally have lower rates of utilization than larger units.

Even if BART-eligible units less than 100 MW capacity were assumed to be subject to presumptive SO 2 emission limits, emissions reductions from these units would be very small compared to overall emission reductions achieved and would have very little effect on the EPA’s technical analysis. The EPA has included in the docket for this action an inventory of BARTeligible units having a capacity between 25 MW and 100 MW. (Units less than 250 MMBtu/hr--Page 53 of 151 approximately 25 MW-- are not BART-eligible). In response to this comment, we calculated the

SO 2 emissions under the future 2014 base case, the “Nationwide BART” scenario, and the “Transport Rule + BART-els ewhere” scenario. In the 2014 base case the total SO 2 emissions from these units is about 101,000 tons, which repres ents a very small fraction, 1.4 percent, of the overall 2014 base case inventory of 7.2 million tons of SO 2 . Under the “Transport Rule + BARTelsewhere” scenario, EPA projected that SO 2 emissions from these units would decline to 46,000 tons, while under the “Nationwide BART ” scenario, we projected that SO 2 emissions from these units would increase to 124,000 tons or about 3 pe rcent of the more than 3.8 million tons in the

2014 “Nationwide BART” cont rol scenario. (We see em issions increases due to 1) higher sulfur coal becoming less expensive; thus some switching to higher sulfur coal is projected for these small units, and 2) as these units become relative ly more economic to operate, their utilization increases slightly.) If we had a pplied the presumptive BART limits to each of the units in this inventory (as noted, a very conservative assumption), SO 2 emissions would decrease to about 15,000 tons. This would reduce total SO 2 emissions in the “Nationwide BART” case from roughly 3.8 million tons to about 3.7 million tons. Given that SO 2 emissions in the “Transport

Rule + BART-elsewhere” control scenario are about 2.9 million tons, even applying presumptive

BART limits to all units betw een 25 and 100 would still result in nearly 1 million tons fewer SO 2 emissions under the “Transport Rule + BART-e lsewhere” scenario. Thus, while the EPA continues to conclude that it is ap propriate to not apply presumptive SO 2 limits to BART-eligible units smaller than 100 MW, the EPA also finds no reason that alternat ive assumptions would affect our findings or conclusion that the Transp ort Rule trading programs meet the test for an alternative program to source-specific BART.



### 5. Reliance on Presumptive BART

Commenter: Earthjustice on behalf of a number of organizations

Comment: EPA Discounted the Visibility Improvements in the Nationwide BART Scenario by Relying on Presumptive BART EPA analyzed whether CSAPR is better than BART without conducting individual BART determinations for affected coal plants. Instea d, the agency assumed that presumptive BART for

SO 2 and NOx represents BART, unless an actual em ission rate at a given unit with existing

controls is lower. See 76 Fed. Reg. at 82225; TSD at 4-5. However, as discussed above, preexisting regulations require EPA to analyze what controls would be imposed as BART at each BART-eligible source to be c overed by an alternative program. See 40 C.F.R. § 51.308(e)(2)(i)(C); see also Section VII.A., supra . Relying on presumptive BART is not consistent with this regulatory requirement. Agai n, EPA offers no lawful or rational justification for departure from this requirement.

The “presumptive BART ” emission limits for EGUs included in EPA’s BART Guidelines were

based on EPA’s broad review of the control tech nologies and emission limits that could be met cost effectively at a wide range of coal-fired power plants. See Sections IV.E.4 and 5 of the BART Guidelines in 40 C.F.R. Part 51, Appendix Y. Presumptive limits are not de facto BART standards; they do not meet th e minimum requirements for BART that federal law mandates and do not negate the need for a case-by-case five-factor analysis for each BART source. See Partial Approval and Partial Disapproval of Arkansas Regional Haze SIP, adva nce notice of final rulemaking at 21 (“the RHR and BART Guidelines do not exempt states from a five factorPage 54 of 151 BART analysis ” ). For this reason, EPA recen tly disapproved Arkansas‘s SO 2 and NOx BART

determination for AEP Flint Creek Boiler No. 1 and Entergy White Bluff Plant Units 1 and 2, even though the BART determin ation met the presumptive BART limits. As EPA explained, it was under no obligation to approve presumptive BART where the state had not conducted an individual analysis and the presumptive BART cont rols did not reflect the best controls available at Arkansas‘s subject to BART sources. See id. at 18-67, 79; id. at 23 (“EPA reiterates that the

RHR and the BART Guidelines make clear that the presumptive limits are rebuttable and may not necessarily be the appropriate level of control for all EGUS. Therefore, EPA is not required to approve every BART determination that meet s the presumptive emission limits, especially when there is no analysis that supports the state's decision in adopting the presumptive limit instead of a more or less stringent emission limit. ” ).

Reliance on presumptive BART is not only proc edurally improper, it also skews EPA‘s alternatives analysis in favor of CSAPR. Actual BART determina tions are often one half or one third of the presumptive limits, given the demonstr ated ability of availa ble air pollu tion control technology to reduce emissions at increasingly high levels of cont rol efficiency. For example, EPA partially approved Oklahoma‘s SIP and is sued a partial FIP for Oklahoma adopting SO 2 BART limits of 0.06 lb/MMBtu for several EGUs, a control that is 60% lower than presumptive BART of 0.15 lb/MMBtu that app lies to scrubbed units that ach ieve less than 95% efficiency.

See 76 Fed. Reg. 81728, 81730 (Dec. 28, 2011) (adopting the 0.06 lb/MMBtu SO 2 limit for Units 4 and 5 of the OG&E Muskogee plant, Units 1 and 2 of the OG&E Sooner plant, and Units 3 and 4 of the AEP/PSO Northeastern plant) . For unscrubbed units, presuming that SO 2 BART limits will be commensurate with installing a scrubber with 95% efficiency likewise underrepresents BART; modern scrubb ers today reduce SO 2 emissions by 99%. See Proposed Rule, 76 Fed. Reg. 16168, 16188 (March 22, 2011) (EPA Region 6 partial approval of Oklahoma SIP; noting that according to an industry contractor, “[w]et sc rubbing is the predominant technology for largescale utility applications in most parts of the world ” )

. [FN 42] Similarly, EPA has required emission limits that go beyond NOx limits impose d as presumptive BART. Table 2-1 in the Technical Support Document sets forth the pr esumptive BART NOx emission limits based on boiler configuration, and the lowest limit, imposed on cyclone boilers firing bituminous, subbituminous, or lignite coal, was 0.10 lbs/MM Btu. Yet EPA has required San Juan Units 1-4

to install SCR and meet a NOx limit of 0.05 lb /MMBtu on a 30-day operating average. 76 Fed. Reg. 52388, 52388 (Aug. 22, 2011). EPA also has proposed to require SCR to meet BART at Milton R. Young Units 1 and 2 and Leland Olds, to meet a NOx rate of 0.07 lbs/MMBtu on a 30 boiler operating day average. See 76 Fed. Reg. 58570, 58599, 58647 (Sept. 21, 2011). These requirements and limits, which represent BART based on EPA‘s own source-specific analyses, go well beyond EPA‘s presumptive NOx BART limits.

Because sources often are subject or should be subject to BART limits significantly more stringent than presumptive BART limits, relia nce on presumptive BART arbitrarily shortchanges the visibility be nefits that could be realized by inst alling and operating controls that are genuinely representative of BA RT. Indeed, EPA‘s own analysis acknowledges the reality that presumptive BART is often less stringent than actual BART—i.e., EPA did not rely on presumptive BART where actual emissions at a unit with existing controls were lower than presumptive BART.Page 55 of 151 In addition, source-specific BART limits take into account the remaining useful life of emission

units. See, e.g., CAA § 169A(g)(2), 42 U.S.C. § 7491(g )(2). For many emission units, owners may choose to retire a source in stead of complying with requ irements for BART control technologies. In effect, those units would have a BART emission rate of zero not only for SO 2 and NOx but also for direct PM2.5 and ammonia. EPA completely failed to consider this potential.

For all of these reasons, EPA acted arbitrarily in assuming that presumptive BART would be found adequate where BART determinations have yet to be made. In failing to evaluate BART and the associated emissions reductions achievable for each source within the CSAPR region subject to BART, EPA arbitrarily and unlawfully discounted the visibility improvement capability of the source-specific BART limits that would apply if the five-factor analyses required by the Clean Air Act were actually undertaken.

Finally, EPA cannot credibly claim that because it broadly applied BART to sources that might not be BART eligible, it overestimated emi ssions reductions, cancelling out the potential undercounting of emissions reductions stemming fr om its reliance on presumptive BART. First, applying limits reflective of actual BART to thos e units that would be subject to BART might

achieve lower overall emissions on a national level than presumptive BART applied to all BART eligible EGUs. See Gebhart Report at 16. Second, if EP A assumed a source was subject to

BART that does not in fact cause or contribute to visibility impair ment at the Class I areas, and thus should not be subject to BART, any modele d emission reductions at that source would not result in modeled visibility improvement s that would weigh in favor of BART. Id.

[FN 42] Other technical sources likewise indicate that mode rn scrubbers can achieve SO2 reduction efficiencies up

to 99%. See, e.g., Sargent & Lundy LLC, Wet Flue Gas Desulfurization Technology Evaluation, Project No. 11311- 001 §§ 1.3.1-.2, at 10 (May 2006) (explaining that “[r]ecent contracts for LSFO [Lim estone Forced Oxidation or conventional wet scrubber] technology in the US market have included guarantees of 99%,” and that “MEL [Magnesium Enhanced Lime] forced oxidation systems have achieved a better level of performance than the LSFO process, with SO2 removal efficiencies between 98% and 99% in power plants also firing a variety of high- and low-sulfur coals”) [Attachment 3]; Kevin Smith, William Booth, & Stephane Crevecoeur, Evaluation of Wet FGD Technologies to Meet Requirements for Post CO2 Removal of Flue Gas Streams, Mega Paper No. 49 (2008) [Attachment 4]; Chuck Dene, Lesley A. Baker & Robert J. Keeth, FGD Performance Capability, Mega Paper No. 62 (2008) (identifying several technologies that have achieved or are capable of achieving 99% SO2 control) [Attachment 5]. We also incorporate by reference the discussion of concerning high efficiency scrubbers, pages 54- 56, included in Earthjustice‘s comments filed on behalf of the Sierra Club, the National Parks Conservation Association, and the Clean Air Council on the Approval and Promulgation of Air Quality Implementation Plans Commonwealth of Pennsylvania; Regional Haze State Implementation Plan Propose d Rule, 77 Fed. Reg. 3984 (Jan. 26, 2012), Docket ID Number EPA-R03-OAR-2012-0002, filed Feb. 27, 2012 and any supporting materials filed

therewith.

Commenter: Earthjustice/Texas

Comment:

EPA Failed to Demonstrate That CSAPR is be tter than BART because it’s Modeling and Assumptions are Flawed Setting aside the fact that the alternative program provisions in the RHR do not comply with the statutory exemption requirements, as stated abov e, EPA’s reliance on CSAPR as an alternative to BART is likewise unsupportable because of in surmountable flaws in EPA’s modeling and the assumptions underlying the modeling. In order fo r a trading program such as CSAPR to be “better than BART,” and where, as here, the di stribution of emissions under the alternative willPage 56 of 151 be substantially different than under BART, di spersion modeling must demonstrate that (1) visibility under the BART-alter native would not declin e in any Class I area, and (2) the BARTalternative would result in overa ll visibility improvement “by co mparing the average differences

between BART and the alternative over all a ffected Class I areas.” 40 C.F.R. § 51.308(e)(3).

As explained below, EPA’s modeling skews th e analysis in favor of CSAPR as a BART

alternative in a number of im portant respects, including the following two examples. First, EPA’s modeling is flawed becau se it models the emission reduc tions of presumptive BART which, based on recent determinations has been 2 to 3 times higher than appropriate, unit specific BART determinations based on th e required five step BART analysis. See id. §51.308(e)(1)(ii)(A). The modeling thus underestim ates the visibility benefits of BART.

Commenter: Kristin A. Henry, Sierra Club

Comment: EPA significantly discounted the improvement that would be seen under a nationwide BART scenario by failing to model emission limits that actually reflect BART. EPA, instead, relied on outdated presumptive BART limits that fail to ac count for significant advances in air pollution control technologies that have prompted the agency itself to impose far more stringent BART determinations. In many cases, EPA did not ca lculate presumptive BART in the manner it described, and instead arbitrarily used limits th at far exceed the already lax presumptive BART.

According to EPA’s regional haze regulations, wh en making a determination as to whether to implement an emissions trading program or other alternative measure rather than require sources subject to BART to install, operate, and maintain BART, a state must conduc t “an analysis of the best system of continuous emission control technology available and associated emission reduction achievable for each source subject to BART and covered by the alternative program.” 40 C.F.R. § 5108(e)(2)(i)(C). Sp ecifically, “[t]his analysis must be conducted by making a determination of BART for each source subject to BART ...” Id. (emphasis added). In other words, BART is a unit specific determination. BART controls and emission levels at BARTeligible sources are determined not simply by se tting them to be equal to their presumptive BART emission levels but by following a detailed case- y-case five-step analysis process specified in the BART regulations. See 40 C.F.R. 50 (App. Y (V)(II)(A)).

However, in its dispersion modeling which EPA conducted to compare differences in visibility between BART and CSAPR, EPA took a shortcutand, instead of actual unit-specific BART, used presumptive BART limits to model the visib ility benefits of BART controls (unless actual emissions at an EGU were lower than presumptive BART). 76 Fed. Reg. 82219, 82225. That is,

for SO 2 , EPA assumed that BART cont rols at a modeled EGU woul d reflect use of a scrubber achieving 95% scrubber control efficiency or 0.15 lb/MMBtu. 70 Fed. Reg. 39104, 39131. For NOx, EPA assumed that BART controls at a mode led coal-fired EGU in Indiana would achieve anywhere between 0.23 to 0.45 lb/MMBtu, based on coal type and boiler configuration. See 70 Fed. Reg. 39104, 39135. This application of presumptive BART is improper. Presumptive

BART limits are not de facto BART standards; they do not meet the minimum requirements for BART that federal law mandates and do not nega te the need for a case-by-case five-factor analysis for each BART source. In additi on, reliance on presumptive BART is not onlyPage 57 of 151 procedurally improper, it also sk ews EPA’s alternatives analysis in favor of CSAPR in that the presumptive BART limits used in its modeling are outdated.

As a result, EPA’s modeling, which employs pr esumptive BART limits, underestimates the visibility benefits of the Haze Rule’s BART requirements. BART controls today often achieve far lower emissions rates than the presumptive BA RT rates used by EPA in its modeling. In fact, for several BART analysis that have been condu cted for coal-fired EGUs in the Western United States (i.e., in non-CAIR, non-Transport Rule, an d non-CSAPR states) in recent years, actual

BART controls and emission levels are more stringent than the corresponding presumptive BART emission levels. For instance, recent BART analyses have found that existing EGUs with dry and wet scrubbers typically achieve SO 2 rates as low as 0.06 lb/MMBtu. See 76 Fed. Reg. 81728, 81743. In fact, EPA recently set a BART limit of 0.06 lb/MMBtu SO 2 based on a rolling 30-day average for six coal fired units in Oklahoma. See 76 Fed. Reg. 81728, 81729 (Dec. 28, 2011) (codified at 40 CFR Part 52). Similarly, ex isting SCR controls can achieve NOx rates as low as 0.05 lb/MMBtu. See 76 Fed. Reg. 52388, 52389. Notably, these rates are far below the presumptive BART limits used by EPA in its “better than BART” analysis. 76 Fed Reg. 82219, 82225. What is more, even the aforementioned 0.06 SO 2 lb/MMBtu and 0.05 NOx lb/MMBtu levels are not the most stringent levels achie vable by current pollution reduction technologies.

Obviously, EPA’s use of presumptive BART as a shortcut in its “bette r than BART” modeling

underestimates the emissions reductions from actua l BART controls and th e resulting visibility benefits of BART at Class I areas.[Fn 14] Ther e is no legally-defensible basis for EPA to use a shortcut that significantly underestimates the visi bility benefits of BART, as EPA’s presumptive BART approach does here.[FN 15] EPA must in stead conduct actual, realistic EGU-specific

BART determinations to serve as the basis for its “better than BART” modeling. Only by comparing actual BART with CSAPR could EPA make the requisite finding that CSAPR is better than BART, as required by the Haze Rule. See 40 C.F.R. § 51.308(e)(2) & (e)(3).

[FN 14] Although Sierra Club cannot positively state th at the unit-specific BART emission limits for all coal-fired EGUs in Indiana would necessarily be 0.06 lb/MMBtu for SO 2 or 0.04 lb/MMBtu for NOx, we are saying that especially considering the radical discrepancy betwee n CSAPR emission rates and the Oklahoma BART emission limits, it would be arbitrary for EPA to assume that BART emission limits for these states’ EGUs would be presumptive BART. [FN 15] In, Center for Energy and Economic Development v. Environmental Protection Agency, 398 F.3de 653, 660 (D.C. Cir. 2005), the Court mandated that EPA would need to do an individu al BART determination for each source in the state and then determine that CSAPR imposed a more stringent emission on that individual source than the

individual BART determination. See also American Corn Growers Association v. Environmental Protection Agency, 291 F.3d 1, 14-24 (D.C. Cir. 2002).

Commenter: Earthjustice/Texas

Comment: EPA’s Modeling Underestimates th e Visibility Benefits of BA RT by Using Presumptive BART,

Rather Than Actual BART EPA’s modeling underestimates the visibility benefits of the RHR’s BART requirements. EPA used presumptive BART limits to model the visi bility benefits of BART controls at EGUs,

unless actual emissions at an EGU were lo wer than presumptive BART. 76 Fed. Reg. at 82225. 16 Thus, for SO 2 , EPA assumed that BART controls at an EGU would reflect use of a scrubber achieving 95% scrubber control efficiency or 0.15 pounds per million Btu (lb/MMBtu). Id. AtPage 58 of 151 82225–26. And for NOx, EPA assumed that BART cont rols at an EGU would achieve from 0.10 to 0.62 lb/MMBtu, based on coal type and boiler configuration. Id. at 82226.

However, these presumptive BART limits are outdated. Appropriate BART controls would achieve far lower emissions rates than pres umptive BART. As EPA Region 6 has explained, BART generally requires greater emission contro ls than presumptive BA RT because “[c]ontrols achieving more than the SO 2 and NOx presumptive limits are available.” 76 Fed. Reg. 64186, 64203 (Oct. 17, 2011). Specifically, Region 6 noted that existi ng EGUs with dry and wet

scrubbers achieve SO 2 rates as low as 0.06 lb/MMBtu, and existing SCR controls can achieve NOx rates as low as 0.04 lb/MMBtu, which are fa r below the presumptive BART limits used by

EPA here. Id. EPA’s use of presumptive BART as a shortcut in its “better than BART” modeling

underestimates the emissions reductions from BART controls and the resulting visibility benefits

of BART at Class I areas.

EPA should have conducted actual EGU-specific BART determinations to serve as the basis for its “better than BART” modeling. Only then coul d EPA ensure that CSAPR is better than BART, as the RHR requires. See 40 C.F.R. § 51.308(e)(2) & (e)(3). Ther e is no legally defensible basis for EPA to use a shortcut that significantly undere stimates the visibility benefits of BART, as EPA’s presumptive BART approach does here.

EPA Response:

The EPA continues to believe th at assuming application of pr esumptive limits over a broad region is a reasonable and appropriate method for estimating the emissions reductions from application of BART. The EPA disagrees that it is necessary to conduct an EGU-specific analysis for each BART-eligible EGU. Such an anal ysis is not feasible or necessary, and even if conducted would produce results that w ould be uncertain and speculative.

The EPA did not, in its action on the Arkansas regional haze SIP, conclude that BART for the sources at issue necessarily is different than presumptive BART. The EPA only determined that the state had not properly applied the five-factor analys is to determine what should be BART for

these sources.



### 6. Need for Correction of EPA Assumptions for Gerald Gentleman Unit 2

Commenter: Earthjustice on behalf of a number of organizations

Comment: EPA Must Model the Visibility Improvement Expected By Appl ying BART at Gerald Gentleman

Unit 2 in Nebraska EPA acknowledged that it inadvertently omitted Gera ld Gentleman Unit 2 from the inventory of BART-eligible units under the Nati onwide BART emissions scenario. See TSD at 10 n.9. As a result, instead of applying BART controls at the unit, EPA assumed the unit would continue emitting at its current, uncontrolled SO 2 emission rate. Had EPA applied BART SO 2 controls at this unit, EPA itself estimated that the SO 2 emissions for Nebraska would be about 12,000 tons

lower under the “Nationwide BART.” Id. Inexplicably EPA did not expect this omission to change the outcome of its analysis even t hough emissions from Gerald Gentleman affect visibility at Badlands Nationa l Park [FN 43] and Wind Cave Na tional Park, [FN 44] parks where Table 1 (in the comments) shows that BART is outperforming CSAPR in visibility improvement.Page 59 of 151 With an additional 12,000 tons of SO 2 reductions, it is likely that the differences between

CSAPR and BART at Badlands and Wind Cave National Parks would be even more pronounced, potentially changing whether CSAPR is better than BART in Nebraska. See Section VII.A,

supra . For example, with the 12,000 ton reduction of SO 2 , EPA’s estimate of the emissions in

Nebraska under the Nationwide BART scenario w ould have been 36% lower than modeled in the rule. [FN 45] Likewise, with these reductions, the SO 2 emissions in Nationwide BART scenario

for Nebraska would have been 71% lower than EPA‘s projected SO 2 emissions in the CSAPR + BART-elsewhere scenario. [FN 46]

Moreover, if EPA had applied NOx controls to Gerald Gentleman Unit 2, Nebraska‘s NOx emissions would be at least 3,100 tons per year less (reflective of the NOx emission reductions expected at presumptive NOx BART rate of 0.23 lb/MMBtu for the wall-fired, dry bottom boiler that burns subbituminous coal) and more likely 7, 700 tons less (reflective of application of SCR

to achieve a NOx rate of 0.05 lb/MMBtu 0.05 lb/ MMBtu). Under either s cenario, NOx emissions

for Nebraska would be well below the NOx emission projections in the CSPAR + BARTelsewhere scenario, making it likely that in Nebraska CSAP R is not better than BART. EPA must revise its modeling to account for reducti ons in emissions at Gerald Gentleman.

[FN 43] See Table 10.3 of the Nebraska Department of Envi ronmental Quality State Implementation Plan for Regional Haze and Best Available Retrofit Technology (BART), June 30, 2011, at 40, available at http://www.deq.sta te.ne.us/AirDivis.ns f/Pages/Haze. Specifically, the 98th pe rcentile visibility contribution from Gerald Gentleman Station at Badlands National Park ranged from 2.828 to 3.121 deciviews. Id. [FN 44] Id. at 62. [FN 45] This was determined by subtracting 12,000 tons from the Nationwide BART SO2 projection for Nebraska

of 32.9 thousand tons of SO2 in Table 2-4 of the TSD. [FN 46] This was determined by comparing a revised projection for Nebraska sources under BART of 20,900 tons (i.e., 32,900 tons – 12,000 tons) to EPA‘s projected SO2 emissions under CSAPR of 71,200 tons in Table 2-4 of the

TSD.

EPA Response:

Please see section III.B.4 of the preamble to the final rule fo r the EPA’s response with respect to

Gerald Gentleman Unit 2.

The EPA disagrees that this emissions discrepancy, which represents less than 0.5 percent of the regional emissions , would require a complete re

- analysis. It is reasonabl e to conclude that, given the substantial emissions and air quality difference betw een the results in the two scenarios, that this discrepan cy would not change the EPA’s finding.



### 7. Incorrect Application of EPA’s Presumptive Limits

Commenter: Kathyrn M. Amirpashaie/Sierra Club

Comment: EPA Arbitrarily Did Not Follow Its Own Method of Applying Presumptive BART Putting aside the problem that it is arbitrary a nd unlawful to rely on pr esumptive BART, which in itself fatally undermines EPA‘s analysis, EP A failed even to properly apply presumptive BART at many BART-eligible units in the CSAP R states. In these instances, EPA modeled emissions limits that were far greater than th e already overestimated pr esumptive BART values. This failure to properly apply presumptive BART calls into question the accuracy of EPA‘s modeling and renders its anal ysis and “better than BART ” conclusion arbitrary. Moreover, aPage 60 of 151 review of the modeling assumptions that EPA actually used demonstrates that CSAPR is wrongly projected to achieve greater reductions at BART-eligible power plants than imposition of properly calculated presumptive BART limits.

In the preamble for the proposed rule and th e accompanying Technica l Support Document, EPA purports to apply, with respect to E GUs with scrubbers, a presumptive SO 2 BART limit that

reflects either the emissions limit actually achieved if the scrubber operated at 95% efficiency or 0.15 lbs/MMBtu. If the scrubber was operating at 95% or higher efficiency, EPA said it relied on

the actual emission rate achie ved, even if greater than 0.15 lbs/MMBtu. Conversely, if the

scrubbed achieved an emission rate of 0.15 lbs/MMBtu or lower, that rate was used even if the

scrubber was less than 95% efficient. For BART -eligible units operati ng without a scrubber, EPA stated that it would apply a presumptive BART limit that reflected 95% control based on installation of a highl y efficient scrubber. See 76 Fed. Reg. at 82225-26; TSD at 4-5.

At the national level, examples of EPA‘s failure to properly and consistently model presumptive BART were selected by identifying all BART-eligible units where the SO 2 emission rate

modeled in EPA’s “Nationwide BART ” scenario was greater than 0.30 lb/MMBtu ( i.e. double the presumptive BART floor) and where the histor ic emission rate, as reported in Clean Air Markets Database (CAMD) for 2010 or 2011, wa s less than the emission rate modeled.

This provides a subset of the most egregious in stances of EPA‘s failure to apply presumptive BART uniformly. Other examples exist throughout the model.

As set forth in greater detail in the accompa nying Tables 2-1 to 2-4, EPA failed to properly calculate presumptive BART at a number of units that include scrubbers. For example, at the following scrubbed units that ar e achieving 95% efficiency, EPA failed to model the actual SO 2 emission rate.

50 The SO2 emission rate used in the Nationwide BART was calculated from the data in EPA‘s National BART 2014 spreadsheet by dividing the Total SO2 Emissions (MTons) by the Total Fuel Use (TBtu) and converting to

lb/MMBtu. See EPA‘s National BART 2014 spreadsheet, available at http://www.epa.gov/visibility/actions.html.Page 61 of 151 51 The tons of SO2 modeled in the Nationwide BART sc enario are reported in EPA‘s National BART 2014 spreadsheet, available at http://www.epa.gov/visibility/actions.html.

52 The 2010 SO2 emission rate was calculated from the data reported on CAMD by dividing the Total SO2 Emissions by the Total Fuel Use and converting to lb/MMBtu. 2010 data was used for each unit in the chart except for Kenneth C Coleman C3, as described in more detail in footnote 54, infra

. 53 For units operating a scrubber at 95% efficiency, the pr operly calculated presumptive BART was determined, as EPA purported to do, by applying the actual emission rate to the heat input assumed in EPA‘s Nationwide BART modeling scenario. 54 For Kenneth C Coleman C3, the emission rate was calcula ted using 2011 data. Using 2010 annual coal feed, coal heat content and coal sulfur content reported in EIA Form-923 along with AP-42 emission factor [(38 *S lb SO2/ton of coal) * (tons of coal) * (2000 lb/ton) ], where S = fuel sulfur content, for wall-fired boiler firing bituminous coal, annual uncontrolled 2010 SO2 emissions were calculated to be 27,347 tons SO2 with an emission factor of 4.67 lb SO2/MMBtu. EPA CAMD reported annual SO2 emissions of 2,607 tons SO2 at an emission rate of .43 lb SO2/MMBtu which represents a RE of 90.5% [(27347-2607)/27347)]. If the RE had been 95%, actual reported emissions would have been 1,367 tons SO2 [(1-.95)*27347] and an emission rate of 0.23 lb SO2/MMBtu. The 2011 reported emission rate for Kenneth Coleman C3 was 0.26 lb SO2/MMBtu which closely approximates operation with a 95% SO2 RE. Although emissions estimates made using AP-42 emission factors have be prone to some error, if the error in the AP-42 estimate were a 10% low bias, an d actual emissions were 30,082 tons, then an emission of 2,607 tons would be yielded by 91.3% RE. In either case, Kenneth Coleman C3 did not achieve 95% RE in 2010.

Likewise, for the following scrubbed unit, whic h is achieving less than 95% efficiency, EPA

failed to model an emission rate that reflected the actual emission limit, which was less than 0.15 lbs/MMBtu. As further support for the argument th at presumptive BART does not reflect best available controls, the limit applied as pres umptive BART, 0.30 lbs/MMBtu, exceeds an actual

historic emission rate.

55 The SO2 emission rate used in the Nationwide BART was calculated from the data in EPA‘s National BART 2014 spreadsheet by dividing the Total SO2 Emissions (MTons) by the Total Fuel Use (TBtu) and converting to

lb/MMBtu. See EPA‘s National BART 2014 spreadsheet, available at http://www.epa.gov/visibility/actions.html.

56 The tons of SO2 modeled in the Nationwide BART scen ario are reported in EPA’s “National BART 2014 Unit Specific Result” spreadsheet, available at http://www.epa.gov/visibility/actions.html.

57 The 2010 SO2 emission rate was calculated from the data reported on CAMD by dividing the Total SO2 Emissions by the Total Fuel Use and converting to lb/MMBtu.

58 For the scrubbed unit that is less than 95% efficient, but that is achieving an emission rate less than 0.15 lb/MMBtu, the properly calculated presumptive BART wa s determined, as EPA purported to do, by applying the actual emission rate to the heat input assumed in EPA‘s Nationwide BART modeling scenario.

Finally, at the following non-scr ubbed units in the CSAPR states, EPA applied emissions limits

for SO 2 that are greater than would be achieved by applying a scrubber with 95% efficiency. Not only do the modeled BART emissions limits depa rt from the promised presumptive BART values, the modeled BART emission limits exceed actual historic emissions rates for either 2010Page 62 of 151 as deduced from reported emissions and heat input in CAMD. Likewise, the emissions limits EPA applied far exceed the limits that would be obtained if the source was required to use a highly effective scrubber, achie ving 99% reduction efficiency. See Section VII.C.2, supra

.

59 From EPA‘s CSAPR+BART 2014 spreadsheet, availabl e at http://www.epa.gov/visibility/actions.html.

60 From EPA‘s National BART 2014 spreadsheet, availa ble at http://www.epa.gov/visibility/actions.html.

61 Properly calculated presumptive BART is described for each type of unit as above, scrubbed units with a reduction efficiency of 95% or greater ( see footnote 53, supra ), scrubbed units with a reduction efficiency of less than 95% yet achieving an emission rate less than 0.15 lb/MMBtu ( see footnote 58, supra ), or unscrubbed units ( see footnote 61,

supra ).

62 For the unscrubbed units, projected BART is calculated by applying a scrubber achieving 99% reduction efficiency. See Section VII.C.2 & n.42 supra . For the scrubbed units, projected BART conservatively assumes the historic achieved emission rate as applied to the heat input EPA assumed in the Nationwide BART scenario. Thus, it is the same as the “Properl y Calculated Presumptive BART ” for the scrubbed units, as described in footnotes 53 & 58, supra

.Page 63 of 151 64 From EPA‘s CSAPR+BART 2014 spreadsheet, availabl e at http://www.epa.gov/visibility/actions.html.

65 From EPA‘s National BART 2014 spreadsheet, availa ble at http://www.epa.gov/visibility/actions.html.

66 Properly calculated presumptive BART is described for each type of unit as above, scrubbed units with a reduction efficiency of 95% or greater ( see footnote 53, supra ), scrubbed units with a reduction efficiency of less than 95% yet achieving an emission rate less than 0.15 lb/MMBtu ( see footnote 58, supra ), or unscrubbed units ( see footnote 61,

supra ).

67 For the unscrubbed units, projected BART is calculated as described in footnote 62, supra, by applying a scrubber achieving 99% reduction efficiency. See Section VII.C.2 & n.42 supra . For the scrubbed units, projected BART conservatively assumes the historic ac hieved emission rate as applied to the heat input EPA assumed in the Nationwide BART scenario. Thus, it is the same as the “Properly Calculated Presumptive BART ” for the scrubbed units, as described in footnotes 53 & 58, supra

. 68 EPA has classified this unit in the CSAPR + BART spreadsheet as “Coal Withdrawn as Uneconomic ” and included no heat input or SO 2 emissions. See EPA‘s CSAPR+BART 2014 spreadsheet, available at http://www.epa.gov/visibility/actions.html.

The consequences of EPA’s failure to properly apply SO 2 presumptive BART become particularly apparent when EPA’s conclusion that CSAPR is “better than BART ” is tested within individualPage 64 of 151 states, as seen in particular in Minnesota, where commenters have had the opportunity to undertake in depth analysis. As explained in the Technical Suppor t Attachment to Comments of Conservation Organizations on the Minne sota Regional Haze SIP, EPA modeled SO 2 emissions limits higher than presumptive BART in severa l instances. For example, EPA modeled Austin Northeast at 1.05 lb/MMBtu, Hoot Lake Unit 3 at 1.49 lb/MMBtu, and Silver Bay Boiler 2 at 1.00 lb/MMBtu, but because none of these units have scrubbers, EPA should have assumed SO 2 emission rates reflecting 95% control. If EPA‘s assumed SO 2 emission rates for these three EGUs reflected 95% control, then the uncontrolled SO 2 emission rates of the coal would range

from 20 to 30 lb/MMBtu which is not credible. These units all burn only subbituminous coal,[FN 69] which is typically low sulfur coal. In fact, the EPA‘s assumed emission rates for Hoot Lake Unit 3 and Silver Bay Boiler 2 not only reflect un controlled emissions but also are significantly higher than actual historical emission rates. Over 2003-2011, the highest annual average SO 2 emission rate at Hoot Lake Unit 3 was onl y 0.71 lb/MMBtu according to CAMD, but EPA

modeled the unit based on an SO 2 emission rate of 1.49 lb/MMBt u. Had EPA truly followed its purported methodology in its Nation wide BART emissions projecti ons, it should have assumed 95% reductions, which would have resulted in much lower emission rates than EPA actually used in its emission projections.

In addition, EPA assumed an SO 2 rate for the unscrubbed Taconite Harbor Unit 3 of 0.22 lb/MMBtu. [FN 70] At maximum, the unit had an annual average SO 2 rate of 0.67 lb/MMBtu over the last nine years. [FN 71] Thus, if EPA were to apply presumptive BART limits to Taconite Harbor Unit 3, it should have assumed an SO 2 emission rate reflecting 95% control at that unit. Instead, EPA in explicably assumed an SO 2 emission rate of 0.22 lb/MMBtu. For Clay Boswell Unit 4, EPA assumed an SO 2 emission rate of 0.15 lb/MMBtu. However, Boswell Unit 4 has a wet scrubber, as indicated in EPA‘s Na tional BART 2014 spreadsheet, and CAMD data shows that the unit is actually achieving lower SO 2 emission rates than 0.15 lb/MMBtu. In 2010- 2011, the annual average SO 2 emission rate at the unit ra nged from 0.10 to 0.05 lb/MMBtu. Nevertheless, EPA assumed an SO 2 BART rate of 0.15 lb/MMBtu, which was inconsistent with what EPA purported to assume ( i.e. , presumptive BART levels unless actual emissions were lower).

Likewise, a review of EPA‘s assumed SO 2 emission rates in its 2014 Nationwide BART emissions scenario for BART-eligible units in Missouri shows that EPA did not consistently apply this methodology to all BART-eligible un its. Missouri has 21 BART-eligible EGUs, and

all but one of the units have no SO 2 scrubbers, according to CAMD . Because these units were

uncontrolled for SO 2 (Iatan Unit 1 was uncontrolled thr ough 2007), data from CAMD from 2003

to 2010 will reveal the maximum historical uncontrolled SO 2 emission rate. Using an uncontrolled emission rate equal to the high a nnual emission rate from 2003-2010, it is possible to calculate the approximate SO 2 removal efficiency that EPA should have assumed in its Nationwide BART 2014 scenario, as shown below.

For the fifteen units in Missouri with projected SO 2 emission rates of 0.15 lb/MMBtu or less, EPA

assumed SO 2 rates in the Nationwide BART 2014 scenario ranging from 0.06 lb/MMBtu to 0.15 lb/MMBtu.[FN 72] However, the SO 2 removal that these projected emission rates reflected ranged from a low of 76% to a high of 96%, with the average SO 2 removal efficiency being 88%. Thus, if EPA assumed an uncontrolled emission rate equal to the high annual emission rate from 2003-2010,Page 65 of 151 EPA did not assume SO 2 rates in the BART scenario of 95% control at units with no scrubbers in

Missouri.

For three other units in Missouri, EPA’s projected SO 2 emissions under the Nationwide BART scenario only reflected 5% to 48% SO 2 removal from historical maximum uncontrolled SO 2 emission rates. And there are three units for which EPA’s SO 2 emission rates with BART applied

no SO 2 controls and instead re flected increases in SO 2 emission rates of 17% to 70%, as seen in

the table below.

[FN 69] Footnote 69: See EPA‘s National BART 2014 Spreadsheet, Columns regarding Total Subbituminous Fuel

Use and Total Bituminous Fuel Use. [FN 70] The Minnesota Pollution Control Agency (“MPCA”) has adopted as BART the requirement to install Rotating Opposed Fired Air (“ROFA”)/Rotomix syst em that includes Furnace Sorbent Injection for SO 2 control. See MPCA BART Determination for Minnesota Power Taconite Harbor Unit 3 in Appendix 9.4 of the Minnesota Regional Haze Plan at 910. However, it does not appear that these controls have been installed yet at Unit 3. CAMD does not indicate any scrubber or other SO 2 controls installed at Taconite Harbor Unit 3, nor have SO 2 rates declined in recent years to indicate application of SO 2 controls. [FN 71] Based on a review of SO 2 emission rates from CAMD for 2003-2011. FN 72] The assumed SO2 emission rate was calculated from the data in EPA‘s National BART 2014 spreadsheet by dividing the Total SO 2 Emissions (MTons) by the Total Fuel Use (TBtu) and converting to lb/MMBtu.Page 66 of 151 As shown by the above table, EPA did not always project SO 2 emissions under BART for

unscrubbed units based on 95% SO 2 removal in Missouri. EPA did not even assume that

scrubbers would be installed at several unscrubbed BART-eligible units in its SO 2 BART emission projections.

In addition, at Fair Station in Iowa, if EPA a ssumed an uncontrolled emi ssion rate equal to the high annual emission rate from 2003-2010, EPA assumed an SO 2 emission rate of 0.95

lb/MMBtu in its Nationwide BART scenario, which reflects only 82% SO 2 removal from the unit‘s maximum annual average uncontrolled SO 2 rate from 2003 to 2010. Likewise, based on the same assumptions, for Big Cajun 2 in Louisi ana, both units burn the same low sulfur coal, have no scrubbers, and emit SO 2 at a maximum uncontrolled rate of 0.77 lb/MMBtu. Yet, in its Nationwide BART scenario, EPA projected SO 2 emissions for Big Cajun 2 Unit 1 at 0.08 lb/MMBtu and for Big Cajun 2 Unit 2 at 0.58 lb /MMBtu, reflecting 89% control for Unit 1 and only 25% control for Unit 2. Finally, in Kentuc ky, EPA assumed Robert Reid Unit 1 would emit

SO 2 at a rate of 4.28 lb/MMBtu in the Nationwide BART scenario. This emission rate reflectsPage 67 of 151 historical uncontrolled SO 2 emission rates at the unit from 200 3 to 2010. Thus, for this unit, EPA assumed no control equals BART.

As all of the above examples make clear, EPA‘s projections of SO 2 emissions for BART-eligible sources did not reflect the assumptions that EPA claimed to have made in its Technical Support

Document.

EPA‘s treatment of Minnesota sources in its altern atives analysis is also illustrative of EPA‘s failure to properly apply presumptive NOx BART. The presumptive NOx BART limits vary with coal type and boiler configura tion. If a source had existing NOx controls, EPA assumed those controls would be operated year round. If those controls did not meet presumptive BART limits,

EPA would assume installation of post-combustion controls, such as selective catalytic reduction (SCR) or selective non-catalytic reduction (SNCR) that would m eet the BART guidelines. The limits are as follows ( see TSD at 5):

Given this purported methodology for projecting NOx emissions under BART, EPA should have

assumed installation of an SCR at Sherburne Co unty Units 1 and 2 in Minnesota. These units have already installed combusti on controls, but the units have failed to meet the 0.15 lb/MMBtu presumptive BART limits for tangential-fired boilers burning subbituminous coal. According to actual annual emissions data from CAMD, the un its have averaged 0.18 lb/MMBtu NOx rates on

an annual basis in 2009-2011. In instances wher e installed combustion controls do not meet presumptive BART limits, EPA represented that it would assume post-co mbustion controls (SCR or SNCR) would be installed. [FN 73] Howeve r, EPA did not assume the Sherburne County Units 1 and 2 would be retrofitted with post- combustion controls. Had EPA projected BART emissions in the manner it purported, it should have projected NOx emissions for Sherburne County Units 1 and 2 at 0.05 lb/MMBtu. [FN 74]

Similarly, Northshore Mining‘s Silver Bay Boiler 2 was not projected to meet the presumptive

NOx BART limit of 0.23 lb/MMBtu for wall-fire d subbituminous coal-fired boilers with combustion controls. Instead, MPCA found the unit could only meet a NOx rate of 0.40 lb/MMBtu with combustion controls. [FN 75 ] Thus, according to EPA‘s methodology, EPA should have assumed installation of post-combusti on NOx controls for this unit, but EPA did not do so. Given that the Silver Bay power plant cause s more visibility impairment to the Boundary Waters Class I area than any other coal-fired power plant in Minnesota 76 and given that

installation of SCR would be cost effective at the unit, a proper NOx BART determination for

the unit would have resulted in a NOx BART limit of 0.05 lb/MMBtu.Page 68 of 151 By improperly applying presump tive NOx BART limits at these units, EPA‘s Nationwide BART scenario includes 5,385 tons more NOx emissions in Minnesota than it should. Correcting for presumptive BART at these units would result in the Nationwide BART scenario producing 7,294 fewer tons of NOx from these pl ants than the CSAPR scenario.

In sum, failure to apply presumptive BART in the manner stated in the preamble and the Technical Support Document is both arbitrary and consequential, fa tally undermining the credibility of EPA’s analysis. By failing to appl y presumptive BART, which is too weak in any case, with any uniformity, EPA arbitrarily disc ounted the emissions achieved in the BART

scenarios.

[FN 73] Footnote 73 See TSD at 5. [FN 74] Footnote 74 See Letter from Soug Aburano, U.S. EPA Region 5 to John M. Seitz, Chief, Minnesota Pollution Control Agency at 2 (June 6, 2011) (finding that SCR could be applied at Xcel Energy‘s Sherburne County facility) [Attachment 6]; See also National Park Service‘s October 3, 2009 Comments Entitled “Xcel Energy‘s Sherburne County Generating Station (SHERCO) MPCA 5/19/09 report and Subsequent Response to Comments” in Appendix 2.5 of Minnesota Regional Haze SIP at 377. [FN 75] Footnote 75 See MPCA BART Determination for Northshore Mining Silver Bay Power Boiler 2, in Appendix 9.4 of Minnesota Regional Haze plan at 848.

EPA Response: EPA disagrees with this commenter’s asserti on that we misapplied the presumptive BART

limits. Table 1 below tabulates the units included in Tables 4, 5, 6, 7, 8 and additional units in Minnesota included in the Earthjustice co mments (Docket ID No. EPA-HQ-OAR-2011-0729- 0246). These units are all BART-aff ected (except one that is iden tified as BART-unaffected) and appropriately modeled in the respective scenarios, except one unit that was not modeled with the required BART limits due to modeling software limitations.

Most of the units are under 100 MW a nd modeled as BART unaffected for SO 2 . See section XI.5 in this document for a discussion of why EPA’ s presumptive limits have different assumptions

for units smaller than 100 MW.

Other units achieve an emission rate of 0.15 lb/MMBtu (or less ) or 95% (or higher) removal efficiency, complying with BART presumptive lim its. Among those, three units are projected to be operating with existing scrubbe rs with 95% removal efficiency and using coal with higher sulfur content than historic values may suggest. The commenter makes calculations and comparisons based on the historic emissions in 2010 which is a function of the sulfur content of the fuel used and the level of dispatch occu rred in 2010. In 2015, in the Nationwide BART run we project these units dispatching with a higher sulfur content coal.

One unit is projected to retire and one un it is identified as BART unaffected. One unit (Dickerson 3) was not fully modeled as BART a ffected due to modeling software limitations. EPA's modeling software was not able to impose BA RT requirements fully on this unit. This unit has an existing scrubber that w ould operate with 95% removal e fficiency. Our modeling assumed a "partial retrofit" operation, m eaning only a portion of the emi ssions were subjected to 95% removal, and remainder of the emissions were as sumed to be by-passed, resulting in an overall removal efficiency of 73.7% for this unit (Dicke rson Unit 3). If this uni t was modeled correctlyPage 69 of 151 achieving 95% removal efficiency for the all th e emissions from the unit there would be an additional 4,608 tons of emission reductions in this unit in the BART -everywhere scenario.Table 1. IPM Modeling Projection in“Nationwide BART” Control Case (2014)PlantUnit FGD DispatchableCapacity(MW)Modeled SO2Content ofCoal(lbs/MMBtu)ModeledSO2RemovalEfficiency(%)Modeled SO2Rate(lbs/MMBtu)NotesUnits fromEarthjustice Table 4Kenneth C Coleman(KY)C3Yes 155 5.91 95.0% 0.30Burns high sulfur coal, achieves 95%removal (1)Dickerson (MD)3Yes 182 3.45 73.7% 0.91Not modeled as BART affected due tomajority rule (2)Cumberland (TN)1 Wet1232 6.15 95.0% 0.31Burns high sulfur coal, achieves 95%removal (1)Cumberland (TN)2 Wet1233 6.15 95.0% 0.31Burns high sulfur coal, achieves 95%removal (1)Units fromEarthjustice Table 5Shiras (MI)3 Dry41 1.49 80.0% 0.30BART unaffected, began constructionin 1981, came online in 1983Units fromEarthjustice Table 6Charles R Lowman(AL)1Yes 86 2.46 0.0% 2.46Less than 100 MW, modeled as BARTunaffectedWhitewater Valley (IN)263 6.15 0.0% 6.15Less than 100 MW, modeled as BARTunaffectedAmes Elec. Servs. (IA)733 0.94 0.0% 0.94Less than 100 MW, modeled as BARTunaffectedMuscatine Plant #1(IA)835 0.94 0.0% 0.94Less than 100 MW, modeled as BARTunaffectedStreeter Station (IA)736 1.01 1.4% 1.00Less than 100 MW, modeled as BARTunaffectedQuindaro (KS)172 0.94 0.0% 0.94Less than 100 MW, modeled as BARTunaffectedEckert Station (MI)469 0.94 0.0% 0.94Less than 100 MW, modeled as BARTunaffectedEckert Station (MI)5 69 0.94 0.0% 0.94Less than 100 MW, modeled as BARTPage69of151Table 1. IPM Modeling Projection in“Nationwide BART” Control Case (2014)PlantUnit FGD DispatchableCapacity(MW)Modeled SO2Content ofCoal(lbs/MMBtu)ModeledSO2RemovalEfficiency(%)Modeled SO2Rate(lbs/MMBtu)NotesunaffectedEckert Station (MI)667 0.94 0.0% 0.94Less than 100 MW, modeled as BARTunaffectedPresque Isle (MI)588 1.05 0.0% 1.05Less than 100 MW, modeled as BARTunaffectedPresque Isle (MI)688 1.05 0.0% 1.05Less than 100 MW, modeled as BARTunaffectedPresque Isle (MI)785 0.62 0.0% 0.62Less than 100 MW, modeled as BARTunaffectedPresque Isle (MI)885 0.62 0.0% 0.62Less than 100 MW, modeled as BARTunaffectedPresque Isle (MI)985 0.62 0.0% 0.62Less than 100 MW, modeled as BARTunaffectedHoot Lake (MN)384 1.49 0.0% 1.49Less than 100 MW, modeled as BARTunaffectedSilver Bay (MN)269 0.94 0.0% 1.00Less than 100 MW, modeled as BARTunaffectedJames River PowerStation (MO)456 0.94 0.0% 0.94Less than 100 MW, modeled as BARTunaffectedJames River PowerStation (MO)597 0.94 0.0% 0.94Less than 100 MW, modeled as BARTunaffectedLake Road (MO)697 0.95 0.9% 0.94Less than 100 MW, modeled as BARTunaffectedDolphus M Grainger(SC)185 4.80 0.0% 4.80Less than 100 MW, modeled as BARTunaffectedDolphus M Grainger(SC)285 5.43 0.0% 5.43Less than 100 MW, modeled as BARTunaffectedUnits fromEarthjustice Table 7Charles R Lowman(AL)1Yes 86 2.46 0.0% 2.46Less than 100 MW, modeled as BARTunaffectedWhitewater Valley (IN)2 63 6.15 0.0% 6.15Less than 100 MW, modeled as BARTPage70of151Table 1. IPM Modeling Projection in“Nationwide BART” Control Case (2014)PlantUnit FGD DispatchableCapacity(MW)Modeled SO2Content ofCoal(lbs/MMBtu)ModeledSO2RemovalEfficiency(%)Modeled SO2Rate(lbs/MMBtu)NotesunaffectedAmes Electric ServicesPower Plant (IA)733 0.94 0.0% 0.94Less than 100 MW, modeled as BARTunaffectedMuscatine Plant #1(IA)835 0.94 0.0% 0.94Less than 100 MW, modeled as BARTunaffectedStreeter Station (IA)736 1.01 1.4% 1.00Less than 100 MW, modeled as BARTunaffectedQuindaro (IA)172 0.94 0.0% 0.94Less than 100 MW, modeled as BARTunaffectedKenneth C Coleman(KY)C3Yes 155 5.91 95.0% 0.30Burns high sulfur coal, achieves 95%removal (1)Dickerson (MD)3Yes 182 3.45 73.7% 0.91Not modeled as BART affected due tomajority rule (2)Eckert Station (MI)469 0.94 0.0% 0.94Less than 100 MW, modeled as BARTunaffectedEckert Station (MI)569 0.94 0.0% 0.94Less than 100 MW, modeled as BARTunaffectedEckert Station (MI)667 0.94 0.0% 0.94Less than 100 MW, modeled as BARTunaffectedPresque Isle (MI)588 1.05 0.0% 1.05Less than 100 MW, modeled as BARTunaffectedPresque Isle (MI)6Yes 88 1.05 0.0% 1.05Less than 100 MW, modeled as BARTunaffectedPresque Isle (MI)7Yes 85 0.62 0.0% 0.62Less than 100 MW, modeled as BARTunaffectedPresque Isle (MI)8Yes 85 0.62 0.0% 0.62Less than 100 MW, modeled as BARTunaffectedPresque Isle (MI)9Yes 85 0.62 0.0% 0.62Less than 100 MW, modeled as BARTunaffectedShiras (MI)3 Dry41 1.49 80.0% 0.30BART unaffected, began constructionin 1981, came online in 1983Hoot Lake (MN)3 Yes 84 1.49 0.0% 1.49Less than 100 MW, modeled as BARTPage71of151Table 1. IPM Modeling Projection in“Nationwide BART” Control Case (2014)PlantUnit FGD DispatchableCapacity(MW)Modeled SO2Content ofCoal(lbs/MMBtu)ModeledSO2RemovalEfficiency(%)Modeled SO2Rate(lbs/MMBtu)NotesunaffectedSilver Bay (MN)2Yes 69 0.94 0.0% 1.00Less than 100 MW, modeled as BARTunaffectedJames River PowerStation (MO)4Yes 56 0.94 0.0% 0.94Less than 100 MW, modeled as BARTunaffectedJames River PowerStation (MO)5Yes 97 0.94 0.0% 0.94Less than 100 MW, modeled as BARTunaffectedLake Road (MO)6Yes 97 0.95 0.9% 0.94Less than 100 MW, modeled as BARTunaffectedDolphus M Grainger(SC)1Yes 85 4.80 0.0% 4.80Less than 100 MW, modeled as BARTunaffectedDolphus M Grainger(SC)2Yes 85 5.43 0.0% 5.43Less than 100 MW, modeled as BARTunaffectedCumberland (TN)1 Wet Yes 1232 6.15 95.0% 0.31Burns high sulfur coal but achieves95% removal (1)Cumberland (TN)2 Wet Yes 1233 6.15 95.0% 0.31Burns high sulfur coal but achieves95% removal (1)Units fromEarthjustice Table 8Iatan1 Wet651 0.94 93.6% 0.06Achieves equal or less than 0.15lb/MMBtu rate requirementAsbury1213 0.84 91.5% 0.07Achieves equal or less than 0.15lb/MMBtu rate requirementThomas HillMB1175 0.94 91.5% 0.08Achieves equal or less than 0.15lb/MMBtu rate requirementMontrose3176 0.94 91.5% 0.08Achieves equal or less than 0.15lb/MMBtu rate requirementLabadie1597 0.94 91.5% 0.08Achieves equal or less than 0.15lb/MMBtu rate requirementLabadie2594 0.94 91.5% 0.08Achieves equal or less than 0.15lb/MMBtu rate requirementLabadie3 612 0.94 91.5% 0.08Achieves equal or less than 0.15Page72of151Table 1. IPM Modeling Projection in“Nationwide BART” Control Case (2014)PlantUnit FGD DispatchableCapacity(MW)Modeled SO2Content ofCoal(lbs/MMBtu)ModeledSO2RemovalEfficiency(%)Modeled SO2Rate(lbs/MMBtu)Noteslb/MMBtu rate requirementLabadie4612 0.94 91.5% 0.08Achieves equal or less than 0.15lb/MMBtu rate requirementNew Madrid2580 0.94 91.5% 0.08Achieves equal or less than 0.15lb/MMBtu rate requirementNew Madrid1580 0.94 91.5% 0.08Achieves equal or less than 0.15lb/MMBtu rate requirementRush Island2604 0.94 91.5% 0.08Achieves equal or less than 0.15lb/MMBtu rate requirementRush Island1604 0.94 91.5% 0.08Achieves equal or less than 0.15lb/MMBtu rate requirementSioux1 Wet Yes 497 2.55 95.4% 0.12Achieves equal or less than 0.15lb/MMBtu rate requirementSioux2Yes 497 2.55 95.4% 0.12Achieves equal or less than 0.15lb/MMBtu rate requirementSikeston Power Station1 Wet233 0.61 75.5% 0.15Achieves equal or less than 0.15lb/MMBtu rate requirementSibley3 401 N/A N/A N/AUnit retiredSibley254 0.88 0.7% 0.88Less than 100 MW, modeled as BARTunaffectedJames River PowerStation597 0.94 0.0% 0.94Less than 100 MW, modeled as BARTunaffectedJames River PowerStation456 0.94 0.0% 0.94Less than 100 MW, modeled as BARTunaffectedLake Road697 0.95 0.9% 0.94Less than 100 MW, modeled as BARTunaffectedBlue Valley351 2.68 0.0% 2.68Less than 100 MW, modeled as BARTunaffectedMN UnitsAllen S King61087.2% 0.08Achieves equal or less than 0.15lb/MMBtu rate requirementPage73of151Table 1. IPM Modeling Projection in“Nationwide BART” Control Case (2014)PlantUnit FGD DispatchableCapacity(MW)Modeled SO2Content ofCoal(lbs/MMBtu)ModeledSO2RemovalEfficiency(%)Modeled SO2Rate(lbs/MMBtu)NotesAustin Northeast290.0% 1.05Less than 100 MW, modeled as BARTunaffectedClay Boswell35190.0% 0.06Achieves equal or less than 0.15lb/MMBtu rate requirementClay Boswell52583.2% 0.15Achieves equal or less than 0.15lb/MMBtu rate requirementHibbing100.0% 1.49Less than 100 MW, modeled as BARTunaffectedHibbing100.0% 1.49Less than 100 MW, modeled as BARTunaffectedHibbing100.0% 1.49Less than 100 MW, modeled as BARTunaffectedHoot Lake840.0% 1.49Less than 100 MW, modeled as BARTunaffectedSherburne County76296.0% 0.06Achieves equal or less than 0.15lb/MMBtu rate requirementSherburne County75296.0% 0.06Achieves equal or less than 0.15lb/MMBtu rate requirementSilver Bay Power690.0% 1.00Less than 100 MW, modeled as BARTunaffectedSilver Lake241.2% 1.12Less than 100 MW, modeled as BARTunaffectedSilver Lake5985.2% 0.17Less than 100 MW, modeled as BARTunaffectedTaconite HarborEnergy Center6865.0% 0.22Less than 100 MW, modeled as BARTunaffected(1) Commenters make calculations and comparisons based on the reported emissions in 2010 which is a function of the sulfur content of the fuel used and thedispatch occurred in 2010. In 2015, in the Nationwide BART runwe project this unit dispatchingwith a higher S content coal.Page74of151Table 1. IPM Modeling Projection in“Nationwide BART” Control Case (2014)PlantUnit FGD DispatchableCapacity(MW)Modeled SO2Content ofCoal(lbs/MMBtu)ModeledSO2RemovalEfficiency(%)Modeled SO2Rate(lbs/MMBtu)Notes(2) Due to modeling limitations, EPA's modeling was not able to impose BART requirements fully on this unit. This unit has an existing scrubber that wouldoperate with 95% removal efficiency. Our modeling assumed a "partial retrofit" operation, meaning only a portion of the emissions were subjected to 95%removal, and remainder of the emissions were assumed to be by-passed, resulting in an overall removal efficiency of 73.7%. If this unit was modeled correctlyto reflect 95% removal efficiency for the entire unit there would be an additional 4,608 tons of emission reductions in this unit.

### 8. Averaging times for BART and CSAPR are Different

Commenter: Earthjustice on behalf of a number of organizations

Comment: EPA Did Not Properly Account For Different Averaging Times under CSAPR and BART When Comparing Visibility Impacts In failing to consider the different averaging times that are used to establish compliance with CSAPR and BART, EPA‘s analysis cannot establish that CSAPR provides greater reasonable progress than BART. Under the established reasonable progress test, EPA was required to show that reliance on CSAPR in lieu of BART will not cause visibility to degrade at any Class I area on the 20 percent best and worst days, and that CSAPR provides an overall improvement in visibility over BART on the 20 percent best and worst days. 40 C.F.R. § 51.308(e)(3)(i)-(ii). The difference in how emission impacts are measured or averaged can significantly affect the outcome of this analysis.

Visibility impacts are measured base d on a twenty-four hour averaging time, whereas BART emission limits are set based on 30-day aver aging times. The BART Guidelines require enforceable emission limits reflecting BART re quirements and specify that permits reflecting BART limits for EGU‘s must “specify an averaging time of a 30- day rolling average.” See 70 Fed. Reg. 39104, 39172 (July 6, 2005). Moreover, BART emissions limits must be met on a

continuous basis. See 42 U.S.C. § 7602(k); CAA § 302(k). In contrast, CSAPR provides for averaging of emissions over a year for the annual SO 2 and NOx programs, and over a five-month period for the ozone season NOx program. Because pollutants are not emitted at a constant rate throughout a given day, month, or year, longer averaging times will “smooth out” variations including hourly spikes in emissions that imp act visibility. Without accounting for the averaging times, it is impossible to accurately determine wh ether CSAPR will provide greater benefits than BART on the 20 percent best or worst days. 40 C.F.R. § 51.308(e)(3)(ii). Also, because CSAPR has such a long averaging time, EPA has failed to show that its analys is accurately assesses whether CSAPR will cause or allow visibility to decline at any Class I area on the 20 percent best or worst days. Id. § 51.308(e)(3)(i). For all the foregoing reasons, EPA‘s proposed finding that CSAPR provides for greater reasona ble progress than BART is arbitrary.

Commenter: Kristin A. Henry, Sierra Club

Comment: Given its temporal implications, CSAPR, as the proposed BART-alterna tive, does not ensure visibility will not decline at any Class I area in the state, or that visibility will improve in the state, per 40 C.F.R. § 51.308(e)(3). Specifica lly, Indiana cannot rely on CSAPR to reduce visibility impairment in Class I areas impact ed by pollution from the state because CSAPR does not protect against very high shor t term or seasonal emissions that degrade visibility or ensure that adequate emissions reductions will occur at sources responsible for impairing visibility. In failing to consider the different averaging times that are used to establish compliance with CSAPR and BART, EPA’s analysis cannot establish that CSAP R provides greater reasonable progress than BART. Under the established reas onable progress test, EPA was required to show

that reliance on CSAPR in lieu of BART will not cause visibility to degrade at any Class I area on the 20 percent best and worst days, and th at CSAPR provides an overall improvement in visibility over BART on the 20 percent best and worst days. 40 C.F.R. § 51.308(e)(3)(i)-(ii). ThePage 76 of 151 difference in how emission impacts are measured or averaged can significantly affect the outcome of this analysis. Visibility impacts ar e measured based on a one-hour averaging time,

whereas BART emission limits are set based on 30-day averaging times. In contrast, CSAPR provides for averaging of emissions over a year for the annual SO 2 and NOx programs. Because pollutants are not emitted at a constant rate throughout a given day, month, or year, longer averaging times will smooth out va riations including hourly spik es in emissions that impact visibility. It is clearly arbitrary for EPA to assume a source will emit at an hourly rate equivalent to the source’s annual CSAPR divided by 8,760 hours per year. Without normalizing the averaging times, it is impossible to accurately determine whether CSAPR will provide greater benefits than BART on the 20 percent best or worst days. 40 C.F.R. § 51.308(e)(3)(ii). Thus, CSAPR is an inappropriate BART-alternative in th at it fails to set forth appropriate averaging periods to ensure that reasonable progress goals and long-term strategies for achieving the CAA and the Haze Rule’s visibility goals are being met.

Thus, since CSAPR, emission allowances are i ssued for a given year, but sources are under no obligation to ration the allowan ces out over the year. Instead, a source such as Tanner Creek, Frank E. Ratts, or Wabash River Generating Stat ion might choose to save its allowances for use during the summer ozone period when demand for elec tricity is at its peak and to idle during the rest of the year, failing to reduce emission duri ng the months when Class I areas may be most likely to experience the most de gradation in visibility. As su ch, even if CSAPR resulted in

emission reductions from a source such as Ta nner Creek, Frank E. Ratts, or Wabash River Generating Station, there is no gua rantee that those reductions woul d help ensure achievement of reasonable progress goals at Class I areas impacted by Indiana sources.

EPA Response: EPA disagrees with the commente r’s assertion that differences in averaging time should affect our conclusions and finding.

First, as noted by the commenter, our visibility evaluation is done for the 20 percent best and worst days. While EPA does, as noted by the commenter, collect IMPROVE samples over a 24- hour time period, none of the visibility program re quirements are based on these 24-hour peaks. Both the 20 percent best days and 20 percent worst days repres ent a relatively long time period, that is an average over one-fifth of the year, or 73 days. Because this is a relatively long time period, it tends to “smooth out” any variations that would occur over a shorter time period.

Second, there is no reason to believe that a cap-and-trade program would yield substantial variations in the application of emission control strategies. Once an EGU owner establishes a strategy for meeting the Transport Rule, there are powerful market incentiv es for operating those

controls. For SO 2 , the strategy might include selection of a coal supplier and control device such

as an FGD scrubber. If the EGU owner chooses to switch fuels and to operat e add-on controls to meet their allowances, and to not purchase allowa nces, there is a continuous market incentive to minimize emissions so long as the allowance price is greater than the pric e of operating controls. Because that will clearly be the case for the Tr ansport Rule given its level of stringency, EPA

finds no reason to believe that there will be substantial variations in operations.Page 77 of 151 Third, the commenter suggests the a 30-day rolling average BART li mit could have significantly different results than the annual or 5-month cap and trade program requirements. EPA notes that a 30-day rolling average repres ents a relatively long time period that would also tend to smooth out the hourly spikes noted by the commenter.



### 9. Errors in EPA models for Nitrate

Commenter: Earthjustice on behalf of a number of organizations

Comment: EPA’s Modeling Does Not Include Realistic Nitrate Levels EPA’s CSAPR better than BART visibility mode ling does not reflect realistic nitrate levels, precluding a credible comparison between CSAPR and BART. In response to a data request, EPA provided its intermediate modeling results, which revealed a high frequency of near zero

nitrate levels. See Gebhart Report at 11. This revelation conf licts with real-world measurements of atmospheric nitrate concentr ations from IMPROVE monitors. See id. EPA‘s failure to produce modeling results that accord w ith real-life atmospheric condi tions severely undermines the credibility of the agency‘s analysis. See Columbia Falls Aluminum Co. v. EPA , 139 F.3d 914, 923 (D.C. Cir. 1998) (“An agency‘s use of a model is arbitrary if that model bears no rational relationship to the reality it purports to represent.”) (internal citation omitted).

EPA Response: The model performance was evaluated for the CAMx 2005 base case against measured data at various monitoring sites (including IMPROVE sites) across the country. The 12km Eastern domain model performance results are documen ted in the CSPAR final rule modeling TSD (Appendix A). The regional model performance, generally showed winter normalized mean biases between -20% (under-prediction) and 20% (over-prediction). Looking at more detailed results by site shows that in general, CAMx did well at replicating relatively high seasonal average measured nitrate concentrations and also predicted low concentrations in areas where measured nitrate was low. But in many cases wh ere seasonal average meas ured nitrate was low (< 0.5 ug/m3), the modeled predictions were considerably lower than those measured, particularly in the Rockies and the West. In spite of under-predictions of low measured concentrations, EPA’s modeling pr ovides a clear relationship be tween model-predicted nitrate

concentrations and measured data.

Additionally it is also not clear how nitrate unde r-predictions in relativ ely clean Class I areas would impact the conclusions of the final rule. EPA sees no reas on why the conclusion that the Transport Rule + BART elsewhere case is be tter than the nationwide BART case would be impacted by nitrate model performance issues. The nitrate model performan ce in the areas of the country which are most impacted by the Transpor t Rule is good. The areas with the largest under-predictions of nitrate are very clean Class I areas in the West which have very little impact on the average visibility calculati ons. Also, in both control cases, BART controls are applied to all of the non-Transport Rule states. Therefore the difference between the nationwide BART and the Transport Rule + BART elsewhere case is very small in the West and has little impact on the

overall results.

Commenter: Earthjustice on behalf of a number of organizationsPage 78 of 151 Comment:

Because nitrate and sulfate concentrations contri bute to overall atmospheric extinction, a core component of visibility, the model‘s failure to contain sufficient nitrate concentrations could significantly affect whether the model accurately pr edicts visibility impact s. Sulfate and nitrate typically affect extinction relative to their concen trations in the atmosphere. Thus, in the east where there is more sulfate in the atmosphere, sulfate has a greater effect on extinction, whereas the relative importance of sulfate extinction dimi nishes as one approaches the central plains, northern plains, and upper Midwest. See Gebhart Report at 11-12. EP A‘s model does not reflect this reality, but instead shows an extremely high sulfate to n itrate concentration on the 20% best days at Isle Royale Nationa l Park in Michigan where one would expect more nitrate concentrations, and a higher than normal sulfate to nitrate concentrate at Dolly Sods Wilderness in West Virginia on the 20% worst days. Id. at 13-14.

EPA Response: The commenter presents an analysis of sulfate to nitrate ratios that is not meaningful in the context of evaluating the model performance. At most Class I areas, the PM components that cause visibility impairment are seasonal, with hi gh nitrate concentrations typically found in the winter and high sulfate concentrations typically found in the summer. The ratio of sulfate to nitrate on the best days and wors t days is not a metric that w ould typically be used to judge model performance. It is not surp rising that the nitrate levels at Isle Royale on the best days and the nitrate levels at Dolly Sods on the worst days are very low. The best days at Isle Royale occur when air is blowing into the US from Canada with very low PM concentrations. The worst days at Dolly Sods occur in the summer when su lfate is high and nitrate is very low. The more important question is whether the model captures the relatively high wi nter nitrate at Isle Royale and the relatively high summer sulfate at Dolly Sods. In this respect, the model performance is quite reasonable. The highest nitrate at Isle Royale is observed in the winter. The average

observed winter nitrate in 2005 at Isle Royale was 1.24 ug/m3 and the average modeled winter nitrate was 0.69 ug/m3. The highest observed sulfate at Dolly Sods is observed in the summer. The average observed summer sulfate in 2005 at Dolly Sods was 8.62 ug/m3 and the average modeled summer sulfate was 7.91 ug/m3. This shows that CAMx is able to capture the seasonal differences in observed sulfate and nitrate concentrations. Additional model performance metrics

for other Class I areas are availa ble in the proposed rule TSD as well as the final rule docket. Overall, EPA believes CAMx model pe rformance to be acceptable.

Commenter: Earthjustice on behalf of a number of organizations

Comment:

The nitrate levels in the model could be sulf ate before converting NOx to nitrate, or an

overestimation of SO 2 , which could consume all of the ammonia leaving little left for nitrate

conversions. Id. at 14. Either deficiency would result in less NOx in the model than in reality, which in turn would mask improvements in visibility from NO X reductions that would be expected to increase where BART is required. See id. at 15 (explaining that “[ w]ith nitrate levels at or near zero in USEPA‘s modeling, the NOx emission controls assumed by USEPA probably achieve little if any modeled benefi t toward improving Class I visibility. ” ). This failure to replicate real life conditions renders the agency‘s modeling analysis arb itrary and precludes EPA from using its modeling results to jus tify reliance on CSAPR in place of BART. See Columbia

Falls , 139 F.3d at 923. EPA “retains a duty to examine key assumptions as part of its affirmativePage 79 of 151 burden of promulgating and explaini ng a non-arbitrary, noncapricious rule. ” Small Refiner Lead

Phase-Down Task Force v. EPA , 705 F.2d 506, 534 (D.C. Cir. 1983); see also Eagle-Picher
Indus., Inc. v. EPA , 759 F.2d 905, 921 (D.C. Cir.1985) (agency must provide a full analytic defense when its model is challenged).

EPA Response: As previously explained, CAMx did well at replicating relativel y high seasonal average

measured nitrate concentrations and also predicted low concentra tions in areas where measured

nitrate was low. EPA believes that the model performance is acceptable for its intended purpose. In the proposed rule, EPA identified 4 Class I ar eas (3 IMPROVE sites) which had calculated visibility degradation on either the 20% best or worst days. A problem wa s isolated to a single model day at each site with an unusually la rge percentage increase in modeled nitrate

concentrations between the 2014 base case and th e control cases. In th ese cases, the modeled nitrate concentration was very low on most of the worst or best days and therefore the single day with a large percentage concentration increase had large influence on the overall average nitrate relative response factor. A closer examination of the modeled data revealed an unusual pattern of nitrate increases on the single day, which was attr ibuted to model instability. EPA continues to believe that these identified cases of instability in modeled nitrate concentrations are isolated and do not impact the model results at other Class I ar eas in a meaningful way. Nitrate is predicted to

decrease between 2005 and 2014 at most Class I areas due to large NOx emissions reductions that occur in that time period. In 2014, the model predicts that nitr ate will increase (compared to the 2014 base case) in about half of the Class I areas due to the Tran sport Rule. But these increases in nitrate are more than offset by large d ecreases in sulfate. This is not surprising and is consistent with the findings in the Transport Rule final rule.

Additionally it is also not clear how nitrate unde r-predictions in relativ ely clean Class I areas would impact the conclusions of the final rule. EPA sees no reas on why the conclusion that the Transport Rule + BART elsewhere case is be tter than the nationwide BART case would be impacted by nitrate model performance issues. The nitrate model performan ce in the areas of the country which are most impacted by the Transpor t Rule is good. The areas with the largest under-predictions of nitrate are very clean Class I areas in the West which have very little impact on the average visibility calculati ons. Also, in both control cases, BART controls are applied to all of the non-Transport Rule states. Therefore the difference between the nationwide BART and the Transport Rule + BART elsewhere case is very small in the West and has little impact on the

overall results.

Commenter: Earthjustice on behalf of a number of organizations

Comment: One potential cause for unusually low nitrate co ncentration levels in USEPA’s CAMx modeling results would be the case if the atmosphere was ammonia-limited in the model. Ammonia preferentially converts the SO 2 to sulfate before the NOX-to-nitrat e reactions occur, so it may be the case that the available ammonia in the model is nearly completely consumed in the sulfate chemistry reactions, leaving little (if any) ava ilable ammonia in the model fields to convert NOX

emissions to nitrate.

EPA Response:Page 80 of 151 The winter sulfate in the 2005 base year is generally overpredicte d, but there is no indication of

whether that is the cause for unde r-predictions of nitrate in so me locations. The commenter is

correct that there needs to be ammonia available fo r nitric acid to form aerosol nitrate. However,

the formation of aerosol nitrate can also be limited by the availability of nitric acid. It is not clear

whether lower sulfate would have an effect on th e nitrate concentrations in these areas. The EPA

does not believe this issue woul d impact the conclusions of the final rule. The nitrate model performance in the areas of the country which are most impacted by the Transport Rule is good 3

. The areas with the largest under-pre dictions of nitrate are very cl ean Class I areas in the West which have very little impact on the average visibility calculations.

Commenter: Earthjustice on behalf of a number of organizations

Comment: As noted by other comments submitted to the Docket [ References 4 & 5 ], USEPA may have significantly overestimated SO 2 emissions in the 2014 Base Case as well as in the two emissions

control scenarios under consider ation (Transport Rule and Nati onwide BART). In part, these emission inventory errors result fr om failing to properly account for SO 2 emission controls that have already been installed at selected facilitie s. It seems that these emission inventory errors

also tend to occur at EGUs that are not BART-eligible. This overestimation of SO 2 emissions by USEPA’s modeling would have the same impact on modeled nitrate concentrations as described above for underestimating atmospheric ammonia. If the SO 2 emissions are significantly overestimated, a similar effect occurs in the CA Mx model in that the available ammonia works first to create sulfate and, if all or most of the available ammonia goes toward the sulfate reactions, insufficient ammonia wo uld be available in the model to convert NOx emissions to nitrate. This appears to have resulted in the signifi cant under-prediction of atmospheric nitrate by USEPA’s CAMx model. In either case (underes timating atmospheric amm onia or overestimating atmospheric SO 2 emissions), the result is that the atmospheric modeling lacks sufficient ammonia remains to fully convert NOX emissions to nitrate. The lack of nitrate in the modeling and the failure to reproduce ni trate concentrations that corr elate to the IMPROVE monitoring results suggest a serious problem with USEPA’s modeling. By failing to account for nitrate, the modeling is particularly vulnerabl e in its ability to properly co mpute the atmospheric extinction, which is a core component of the visibility calculations.

EPA Response:

The EPA believes that the modeled level of SO 2 emissions in both the 2014 base case and the

2014 control cases was a reasonable estimate. But in any case, model performance can only be judged against 2005 base case emissions and 2005 observations. The EPA does not agree that

2014 SO 2 emissions are overestimated and that this is causing a problem in the model which would invalidate the visibility results. As descri bed previously, the nitrate model performance in the areas of the country which were most impact ed by the Transport Rule is good. The areas with the largest under-predictions of n itrate are very clean Class I areas in the West which have a very small impact on the average visibility calculations.

Commenter: Earthjustice on behalf of a number of organizations

Comment:

3 See Appendix A of the Transport Rule Air Quality Modeling TSD.Page 81 of 151 The potential bias in the modeling results ca n also be exacerbated by USEPA’s selected modeling approach. The nitrate modeling is used to calculate a relative response factor (RRF),

which is the ratio between the nitrate concentr ations in each of the emissions control cases (Transport Rule or Nationwide BART) versus th e 2014 Base Case nitrate model prediction. If the 2014 Base Case modeling predicted nitrate leve ls to be near-zero, a large RRF can be caused by relatively small changes in predicted nitrate concentrations.

In fact, USEPA’s explanation for the four wester n Class I areas in the first prong test (where visibility degradation against the 2014 Base Case was modeled) cites this very problem as introducing a non-representative bias into the modeling results . USEPA’s explanation for the modeled visibility degradation in the first prong test cites small changes in nitrate predictions

where both the Base Case and emissions control stra tegy have nitrate levels close to zero. In the case of the modeled visibility degradation s ituations, USEPA has chosen to ignore modeling results that predicted nitrate concentration increases and visibility degradation where the

modeled nitrate levels were near-zero.

However, a more comprehensive review of th e nitrate concentration data throughout USEPA’s modeling shows that this particular problem is actually wide spread within the modeling results. If very low modeled nitrate c oncentrations, as contemplated by USEPA, potentially introduce a non-representative bias into the results, then US EPA’s modeling effort as a whole is questionable given that the modeled nitrate leve ls at virtually every other Cla ss I area also exhibit the same characteristics. In short, because nitrate resu lts from the modeling do not correlate to existing visibility measurements based on IMPROVE data , USEPA’s modeling for this Docket does not meet the scientific and legal standards required for such modeling.

In addition, the failure of USEPA’ s modeling to adequately address nitrate concentrations in the atmosphere also leads to questionable mode ling results when addressing the visibility improvements associated with future NOx emissi ons controls, whether under the Transport Rule

or Nationwide BART. NOx emissions reductions under any visibility re gulatory program would be targeting reductions of nitr ate as a visibility impairing species. If USEPA’s modeling significantly underestimates nitrate formation, this modeling would also not accurately simulate

the effectiveness of NOx emissions controls towa rd reducing atmospheric nitrate. With nitrate

levels at or near zero in USEPA’s modeling, the NOx emi ssion controls assumed by USEPA probably achieve little if any modeled benefit to ward improving Class I visibility. USEPA needs to investigate the potential cause for near-zero ni trate concentration results in its “Better than BART” modeling. Furthermore, USEPA needs to make any necessary corrections to the modeling inputs and recalculate th e expected concentrations and resulting visibility conditions. These findings regarding nitrate errors in US EPA’s modeling may in fact be related to a significant overestimate of SO 2 emissions at sources by failin g to properly account for emission controls already installed to comply with ot her state and federal regulatory programs and

initiatives. USEPA’s modeled nitrate results sh ould be more aligned with the real-world IMPROVE monitoring concentrations. Until the mode led nitrate levels more closely match the observed/expected values based on IMPROVE da ta, there is no confidence that USEPA has accurately modeled the visibility im plications of the Transport Rule.

EPA Response:Page 82 of 151 As previously explained, CAMx did well at replicating relativel y high seasonal average

measured nitrate concentrations and also predicted low concentra tions in areas where measured

nitrate was low. EPA believes that th e model performance is acceptable for its intended purpose. It is true that a small modeled change in a sm all concentration can create a large percentage change. However, the RRF methodology does not cal culate individual day RRFs, which could be very large and unstable (e specially if the concentr ations are near zero). This issue is minimized by calculating RRFs using base year and future y ear modeled concentrations averaged across all best (or worst) days at each IMPROVE site. De pending on data completeness, this is usually 20- 25 worst days or best days per year.

In the proposed rule, EPA identified 4 Class I ar eas (3 IMPROVE sites) which had calculated visibility degradation on either the 20% best or worst days. A problem wa s isolated to a single model day at each site with an unusually la rge percentage increase in modeled nitrate

concentrations between the 2014 base case and th e control cases. Due to the averaging across days before the RRFs are calculate d, this problem would not normally occur. But in these cases, the modeled nitrate concentration was very low on most of the worst or best days and therefore the single day with a la rge percentage concentration increa se had large infl uence on the overall average nitrate RRF. A closer examination of th e modeled data revealed an unusual pattern of nitrate increases on the single day, which was attr ibuted to model instability. EPA continues to believe that these identified cases of instability in modeled nitrate concentrations are isolated and do not impact the model results at other Class I ar eas in a meaningful way. Nitrate is predicted to

decrease between 2005 and 2014 at most Class I areas due to large NOx emissions reductions that occur in that time period. In 2014, the model predicts that nitr ate will increase (compared to the 2014 base case) in about half of the Class I areas due to the Tran sport Rule. But these increases in nitrate are more than offset by large d ecreases in sulfate. This is not surprising and is consistent with the findings in the Transport Rule final rule.



### 10. Ozone

­ only States

Commenter: Willie R. Taylor, Director, Office of Environm ental Policy and Compliance, U.S. Department of the Interior

Comment: We disagree with EPA that summertime nitr ogen oxide (NOx) reducti ons aimed at reducing ozone pollution for those states whose coverage u nder the Transport Rule relates only to ozone issues are acceptable to address nitrate contributio ns to regional haze. Because nitrate particle concentrations are dependent on cooler temperatur es and generally are el evated in the winter rather than the summer months, NOx controls that apply only duri ng the summertime ozone season are not appropriate to address wint ertime nitrate impacts to visibility.

Our recommended remedy for these discrepancies is to treat the states of Arkansas, Louisiana, Nebraska, Kansas, and Oklahoma, separately from the remaining eastern states. These states are either subject to ozone only or are new additions to the Transport Rule that were not subject to

the earlier Clean Air Interstate Rule. For these states, we recommend a state specific

demonstration that the altern ative is better than BART.

Commenter: Earthjustice on behalf of a number of organizations

Comment:Page 83 of 151 CSAPR is not Better than BART in the Ozone Season States EPA’s analysis does not attempt to demonstrate that CSAPR is better than BART in those states where power plants are only s ubject to the five-month ozone season NOx trading program. Under the better than BART proposal, BART-eligible sources in Arkansas, Florida, Louisiana, Mississippi, and Oklahoma - which are only covere d by the ozone season program and thus only required to hold allowances and limit emissi ons during May through September - would escape the BART requirement to install and operate year-round controls designed to reduce NOx

emissions that harm the nation‘s Class I areas. This creates a palpable risk of visibility degradation during the seven months of the year when the sources have no incentive to operate controls, causing CSAPR to fail under pr ong 1 of the reasonable progress test. See 40 C.F.R. § 51.308(e)(3)(i). EPA has not attempted to show that for these states CSAPR can nevertheless be better than BART, and based on the analysis below it will not likely be able to make that showing. See USFS Comments at 1 (“We do not support the provision for reliance upon ozone season NOx limitations as providing for greate r reasonable progress than source-specific

BART. ” ).

For example, as the USFS has explained, summertime NOx controls may not improve visibility given the atmospheric chemistry of particul ate nitrate formation. As they explained, Particulate nitrate formation is largely depende nt upon cooler temperatur es and higher humidity values, conditions most common during the late autumn through the early spring months. This translates into a significantly hi gher contribution of particulate nitrate to the extinction budget during the winter season. Correspondingly, summer ti me nitrate concentrations are typically very low and contribute very little to light extinction. . . . NOx controls which are limited to ozone

season will have little effect on reducing particulate ni trate levels during th e period of the year when nitrate contribution to light extinction is greatest. USFS Comments at 1-3, Figs.1-2. Thus, at a minimum, in Oklahoma and Arkansas, wher e modeling predicts the highest nitrate levels between November and February, CSAPR is not likely to be better than BART. Id. at 3. Moreover, independent of the nitrate chemistry, it is not certain that CSAPR can be better than partial-BART because, in many of these states, CSAPR is not predicted to reduce NOx emissions over ozone-only BART.

For state-specific examples, see the comment le tter submitted to the docket (Docket ID No. EPA-HQ-OAR-2011-0729-0246).

Commenter: National Parks Conservat ion Association and Earthjustice

Comment:

The emissions from each Florida EGU have differ ent impacts on visibility as a result of, among other things, their respective locations and the prevailing winds toward Class I areas. EPA does not know – and cannot know under the current rule – which Florida EGUs will actually reduce NOx emissions under CSAPR, or by how much. The emissions reductions achieved by CSAPR

in Florida are limited to five m onths of the year – the ozone s eason. Any controls that might be

installed to meet CSAPR are not required to be operated year-r ound. This does nothing to protect the affected Class I areas during the remaining se ven months. In fact, as noted in the Forest Service’s comments on the draft notice of propos ed rulemaking, the impacts of NOx emissions are highest outside of the ozone season.Page 84 of 151 Even within the five month ozone season, CSAPR allows for temporal variability such that a facility could emit at high levels within a shor ter time period, creating hi gher than anticipated visibility impacts. Because of the high degree of variability and flexib ility, power plants may exercise options that would lead to little or no emission reducti ons. For example, a facility in Florida might purchase emission credits from a s ource beyond the airshed of the Class I area the FL source impairs. Because CSAPR requirements only pertain to the Florida source for a fraction of the year, that source may be even mo re incentivized to purchase emission credits from elsewhere than a source in a fully covered CS APR state. Thus, without knowing which Florida EGUs will reduce pollutants by what amounts under CSAPR, or when they will do so, and because these emissions reductions are applicable for less than half the year, EPA simply does not know the impact of CSAPR upon Florida's Class I areas.

It is however certain that the NOx emission reductions potentially ach ievable through CSAPR allocations at the at least 9 BART eligible Flor ida EGUs pale in comparison to those that would be required through operation and installation of an appropriate BART limit, assuming each source were subject to BART. In fact, EPA ha s projected that NOx emissions from BARTeligible EGUs in Florida will be 9,178 tons lower under BART than under CSAPR. It is also virtually certain that steeper emission reductions would make greater strides in attaining reasonable progress goals and therefore calls into question EPA’s reliance on CSAPR to exempt BART sources from Regional Haze Rule requireme nts. Therefore, EPA cannot demonstrate that CSAPR will achieve as much visibility im provement in those areas as would BART.

EPA Response:

Please see section III.B.3 of the preamble for EPA’s rationale for finding that the NOx requirements of the Transport Rule achieve be tter-than-BART results for NOx for these ozoneonly states. In addition, with re spect to Florida, EPA notes th at the Florida Department of Environmental Protection, in a letter to EPA dated April 24, 2 012, has committed to supplement Florida’s Regional Haze SIP by July 31, 2012. In this effort Florida is working with Florida utility owners to make case-by- case BART and reasonable progre ss determinations for Florida power plants.

11. Use of Presumptive Limits for NOx in Arkansas

Commenter: Earthjustice on behalf of a number of organizations

Comment: The state of Arkansas adopted the presumptiv e NOx BART emission rates from EPA‘s BART Guidelines as BART limits for these units, but EPA recently disapproved these state BART determinations for failing to consider post-combustion controls such as selective catalytic reduction (SCR). As EPA noted in its proposed disa pproval of the Arkansas NOx BART determinations, NOx emission rates with SCR as low as 0.05 lb/MMBtu have been routinely

met. In comparison, the presumptive NOx BART rate s for White Bluff Units 1 and 2 and Flint Creek are 0.15, 0.15, and 0.23 lb/MMBtu, respectively.

In its BART projections for th ese three EGUs in the National BART 2014 scenario, EPA ignored its October 2011 proposed disapproval of the presumptive NOx BART limits. Instead, EPA assumed that meeting the presumptive NOx limits reflected source-specific BART at these units. EPA has now made clear in its final disapproval of those same limits that presumptive BARTPage 85 of 151 does not equal source-specific BART for White Blu ff Units 1 and 2 and Flint Creek Unit 1 in

Arkansas. See also Section VII.C.2, supra

In the summer ozone season, the NOx emitted by coal-fired power plants such as White Bluff or Flint Creek is more likely to be converted to oz one in the atmosphere rather than visibilityimpairing nitrate particulates. However, during th e months outside of the ozone season, the data on the worst 20% days for Caney Creek wilderness in Arkansas shows that nitrates are often the major component of visibility impairment.[FN 87] And, on the best 20% of days, nitrates are more often the major component of visibility impairment. Similar non-ozone season nitrate contributions occur at the Upper Buffalo wilder ness in Arkansas, especially in the month of November for the worst 20% of days and in the spring, winter, and fall of the best 20% of days. The Missouri Class I areas show similar patterns. Based on this data, it would not be protective of visibility on a year-round basis if the NOx controls at Arkans as EGUs only applied during the

ozone season. Given that EPA‘s NOx emission projections do not predict any NOx emission reductions at the BART-subject EGUs in Arka nsas under CSAPR, EPA has not, and could not,

demonstrate that ozone-season only CSAPR requirements would result in greater reasonable progress towards achieving natural background visibi lity conditions than source-specific BART

would.

[FN 87] Footnote 87: See Technical Support Document for CENRAP Emissions and Air Quality Modeling to Support Regional Haze State Implem entation Plans, prepared by ENVI RON International Corporation and University of California Riverside, September 12, 2007 at 3-18 (in Docket for EPA’s proposed rulemaking on the Arkansas Regional Haze SI P, under Appe ndix A references, Docket ID EPA-R06-OAR- 2008-0727- 0008).

EPA Response: The EPA did not, in its action on the Arkansas regional haze SIP, conclude that BART for the sources at issue necessarily is different than presumptive BART. The EPA only determined that the state had not properly applied the five-factor analys is to determine what should be BART for

these sources. Please see section III.B.3 of the preamble for the final rule for a discussion of ozone-only states and EPA’s rationale for concludi ng that these states ar e appropriately included in the better-than-BART finding.



### 12. Deficiencies for NOx in Other NOx

­ only CSAPR States

Commenter: Earthjustice on behalf of a number of organizations

Comment: Other Ozone-Season-Only CSAPR States A review of the four remaining ozone-season -only CSAPR states shows that EPA has not

demonstrated that CSAPR is better than sour ce-specific BART in those states either. For example in Florida, Crystal River Units 1 a nd 2 are 25 km, or about 15.5 miles, from the Chassahowitzka Wilderness, part of the larger Chassahowitzka National Wildlife Refuge on the Gulf Coast of Florida. They are also within 300 km of Okefenokee, St. Marks, and Wolf Island wildernesses. Currently, both of these 1960s-era units have some form of combustion control for NOx, but no add-on controls. Under CSAPR, Units 1 and 2 at Crysta l River would be required to

reduce their ozone season NOx emissions by about 75% over 2010 actual emissions. Since CSAPR does not compel reductions during the remaining part of the year, this amounts to only about 35% reduction annually. Part icularly given their impacts on multiple Class I areas, thesePage 86 of 151 units are good candidates for add-on NOx controls such as Selective Catalytic Reduction (SCR), which would not be required for the facility to meet its CSAPR allocations. These controls could provide reductions in NOx emissions of over 90%.

EPA Response: Please see section III.B.3 of the pr eamble for the final rule for a discussion of ozone-only states and EPA’s rationale for concluding that these states are appropriat ely included in the better-thanBART finding.



### 13. Need for Worst

­ Case Scenarios

Commenter: Earthjustice on behalf of a number of organizations

Comment: EPA Must Analyze Whether a Seasonal Program is better than Application of Year-Round BART

Controls In addition to addressing the obvious concern that limiting emissions under CSAPR for less than half a year cannot provide grea ter reasonable progress than in stalling and operating effective controls year-round, EPA must also account for th e possibility that BART-eligible sources in these states may simply purchase allowances fr om newer, cleaner sources located in states subject to both the seasonal NOx and annual program alike - t hat is, sources that are more likely to install controls. This likely scenario risks de gradation at the Class I areas impacted by sources

in ozone season states and could cause CSAPR to fail prong 1 of the reasonable progress test. 40 C.F.R. § 51.308(e)(3)(i). While EP A purported to model some tradi ng in the IPM, EPA‘s failure to undertake a meaningful evaluation of the likel y worst case scenario and CSAPR‘s impacts in these states renders its propos al arbitrary and unlawful.

EPA Response: The EPA disagrees that it is likely that BART -eligible sources in an ozone-only state would purchase allowances from newer, cleaner sources in states subject to bot h the seasonal NOx and annual NOx program. The inclusion of a source in both programs, as opposed to the ozone season program only, has no effect on its likelihood of installing controls. In all cases for the Transport Rule, the same $/ton values were us ed for establishing NOx budgets. Moreover, each

state must meet its “assurance level” in additi on to its budget, and thus for a state where a NOx emitter purchases allowances for a source in anothe r state, the assurance level would only be met if there were counter-balancing de creases at another source within the states. Finally, EPA’s IPM analysis, which would model such trading wh ere the economics were favorable, inherently incorporates a “meaningful evaluation” of this scenario.



### 14. Use of IMPROVE Monitor Location to Evaluate Visibility Impacts

Commenter: Earthjustice on behalf of a number of organizations

Comment: EPA Cannot Reliably Evaluate Visibi lity Impacts at All Class I Ar eas Using Only Data from

IMPROVE Monitors EPA‘s analysis is further flawed because it fails to consider differences in visibility across each Class I area, instead estimating visibility based on a single IMPROVE monitor, where available. In this way, EPA‘s analysis does not show whet her CSAPR would cause a decline in visibilityPage 87 of 151 across all or parts of any Class I area. See 40 C.F.R. § 51.308(e)(3)(i). In some instances, EPA relied on a single monitor in a Class I Area to make conclusions about visibility in another Class I Area entirely. Cf. 40 C.F.R. § 51.308(e)(3) (requiring dispersion modeling “to determine differences in visibility between BART and the trading program for each impacted Class I area, for the worst and best 20 percent of days ” (emphasis added)). For example, in EPA‘s analysis, Otter Creek Wilderness in West Virginia is re presented by the IMPROVE Monitor at Dolly Sods Wilderness in West Virginia. See Gebhart Report at 10.

Evaluating visibility impairment at a single moni tor location, whether that monitor is within the Class I area or is a proxy for a nearby Class I ar ea, is unlikely to accurate ly describe visibility

conditions across the Class I area. See Gebhart Report at 10. This problem is particularly pronounced for large Class I areas such as Shena ndoah National Park, which covers 70 miles and stretches from Front Royal, Vi rginia to Wayneboro, Virginia. See id. Certainly, given its size, visibility would be expected to differ th roughout the area. Nonetheless, EPA‘s modeling represents Shenandoah based on the single 12 km x 12 km grid square where its IMPROVE monitor is located. This approach conflicts with both conventional and EPA wisdom; even EPA‘s own BART Guidelines recognize that a single IMPROVE monitor cannot represent visibility impact, particularly where multiple Class I areas are at issue:

[I]f there are multiple Class I areas in relativel y close proximity to a BART-eligible source, a State may model a full field of receptors at th e closest Class I area. Then a few strategic receptors may be added at the other Class I areas (perhaps at the closest point to the source, a receptor at the highest and lowest elevation in the Class I area, a receptor at the IMPROVE monitor, and a few receptors that are expected to be at the approximate plume release height). 70 Fed. Reg. 39104, 39126 (July 6, 2005).

Thus, analysis based on a single mo nitor location cannot provide assu rance that visibility will not degrade across any Class I area, and EPA must re ly on more than evaluation of the impacts at

IMPROVE monitor locations to demonstrate that vi sibility will not decline in any Class I area if

CSAPR is relied on in lieu of source-specific BART. See 40 C.F.R. § 51.308(e)(3)(i). EPA‘s failure to consider other means of estimating visi bility across the Class I areas, or to explain why it departed from the BART Guidelines , renders its analysis arbitrary.

EPA Response: The BART rule (§ 51.308(e)(3)( ii)) states that there shoul d be an overall improvement in visibility, determined by comparing the average differences between BART and the alternative

over all affected Class I areas. EPA calculated th e visibility difference between the Transport

Rule + BART elsewhere case and nationwide BART case at IMPROVE monitors that represent Class I areas. In some cases, a single IMPROVE monitor represents multiple Class I areas. EPA believes that it is appropriate to calculate visi bility changes at IMPROVE monitoring sites, as compared to Class I area locations (whi ch are often in the same location).

The regional haze rule requires reasonable progre ss goals to be met for each Class I area (and for the eventual return to natural conditions). The regional haze reasonable progress goals will be assessed by calculating visibility improvements from measured PM 2.5 data from IMPROVE monitors. A single IMPROVE monito r location represents an entire Class I area, and sometimesPage 88 of 151 multiple Class I areas. Therefore, to be consiste nt with how reasonable progress is measured, the EPA modeling guidance recommends examining th e modeled visibility changes at IMPROVE monitor locations. In this respect, calculati on of the visibility im provement at IMPROVE monitors is consistent with the implementation of the regional haze rule.

As noted above, a single IMPROVE monitor ma y represent multiple Class I areas. If for example, an IMPROVE monitor repr esents 3 Class I areas, we beli eve that it is appropriate to include the modeling results at that IMPROVE monitor 3 times in the averaging calculation. After all, there are 3 separate Class I areas that are located near the monitor. And each Class I area must show reasonable progress. However, the averaging could have been done by counting the results at each IMPROVE monitor only once. In order to understand the impact of this issue, EPA recalculated the modeling results counting each IMPROVE monitor only once, to see if this sensitivity analysis would change the results. In the Eastern 12km modeling domain, there were

46 IMPROVE sites and in the full nationwide domain there were 96 IMPROVE sites. The sensitivity analysis counted each site once and th en averaged the visibility differences over the

46 or 96 sites. Here are the results of the revised calculations.

Transport Rule

+ BART

elsewhere –

2014 Base Case 20% Best Days Nationwide

BART – 2014

Base Case

20% Best Days Transport

Rule + BART

elsewhere –

2014 Base

Case

20% Worst Days Nationwide

BART – 2014

Base Case

20% Worst Days

Eastern Class I Areas Average (46 IMPROVE sites) -0.3 -0.3 -1.4 -1.1

All Class I Areas Average (96 IMPROVE sites) -0.1 -0.1 -0.7 -0.6

As can be seen in the table above, the Transport Rule + BART elsewhere case is still better than

the Nationwide BART case when each IMPROVE site is only counted once in the average calculations for best and worst days.

Commenter: Earthjustice on behalf of a number of organizations

Comment: EPA’s analysis is further flawed because it fails to consider differences in visibility across each Class I area, instead estimating visibility based on a single IMPROVE monitor, where available. In this way, EPA’s analysis does not show whet her CSAPR would cause a decline in visibility across all or parts of any Class I area. See 40 C.F.R. § 51.308(e)(3)(i). In some instances, EPA relied on a single monitor in a Class I Area to make conclusions about visibility in another ClassPage 89 of 151 I Area entirely. Cf. 40 C.F.R. § 51.308(e)(3) (requiring dispersion modeling “to determine differences in visibility between BART and the trading program for each impacted Class I area, for the worst and best 20 percent of days ” (emphasis added)). For example, in EPA’s analysis, Otter Creek Wilderness in West Virginia is re presented by the IMPROVE Monitor at Dolly Sods Wilderness in West Virginia. See Gebhart Report at 10.

Evaluating visibility impairment at a single moni tor location, whether that monitor is within the Class I area or is a proxy for a nearby Class I ar ea, is unlikely to accurate ly describe visibility

conditions across the Class I area. See Gebhart Report at 10. This problem is particularly pronounced for large Class I areas such as Shena ndoah National Park, which covers 70 miles and stretches from Front Royal, Vi rginia to Wayneboro, Virginia. See id. Certainly, given its size, visibility would be expected to differ th roughout the area. Nonetheless, EPA’s modeling represents Shenandoah based on the single 12 km x 12 km grid square where its IMPROVE monitor is located. This approach conflicts with both conventional and EPA wisdom; even EPA’s own BART Guidelines recognize that a single IMPROVE monitor cannot represent visibility impact, particularly where multiple Class I areas are at issue:

[I]f there are multiple Class I areas in relativel y close proximity to a BART-eligible source, a State may model a full field of receptors at th e closest Class I area. Then a few strategic receptors may be added at the other Class I areas (perhaps at the closest point to the source, a receptor at the highest and lowest elevation in the Class I area, a receptor at the IMPROVE monitor, and a few receptors that are expected to be at the approximate plume release height). 70 Fed. Reg. 39104, 39126 (July 6, 2005).

Thus, analysis based on a single mo nitor location cannot provide assu rance that visibility will not degrade across any Class I area, and EPA must re ly on more than evaluation of the impacts at

IMPROVE monitor locations to demonstrate that vi sibility will not decline in any Class I area if

CSAPR is relied on in lieu of source-specific BART. See 40 C.F.R. § 51.308(e)(3)(i). EPA’s failure to consider other means of estimating visi bility across the Class I areas, or to explain why it departed from the BART Guidelines renders its analysis arbitrary.

EPA Response: As previously noted, the visibility changes fr om the CAMx model runs were calculated at IMPROVE monitoring sites. The EPA agrees that a visibility change that is supposed to represent a large area should not be calculated at a single 12km grid cell. That is why the postprocessing for the 12km modeling results used a change in modeled concentrations averaged over a 3x3 grid cell area (which is a total ar ea of 36km x 36km). For the 36km model results (used in the extreme West), a si ngle 36km grid cell was used to re present the change in modeled concentrations. The averaging of multiple grid cells in the 12km domain was clearly stated in section 3.4 of the proposal TSD and we are not changing the methodology in the final rule. Although a 36km square area is smaller than many Class I areas, it is a reasonably large area to represent the change in visibility at an IMPROVE monitor (and it also follows the recommendations in the regi onal haze modeling guidance).

The BART Guidelines referenced in the comm ent refer to dispersion modeling of individual point sources to determine visibility impacts fr om a single source on nearby Class I areas. ThosePage 90 of 151 guidelines only apply to single source BART modeling determina tions. However, this rule makes a determination that a regional control pr ogram (the Transport Rule) can be used as an alternative to source by source BART. Regional modeling, such as the modeling performed in support of this rule and the Transport Rule, is performed using photochemical grid modeling. For this type of modeling, all emissions sources are included in the same model run. This is also similar to the type of modeling performed by st ates to help determine if reasonable progress goals will be met in future years. The appropria te modeling guidance to follow for this type of modeling is the photochemical modeling guidan ce document “Guidance on the Use of Models and Other Analyses for Demonstrating Atta inment of Air Quality Goals for Ozone, PM 2.5 , and Regional Haze”. The EPA performed the modeling fo r the Better than BART rule in accordance with the grid modeling guidance for ozone, PM2.5, and regional haze. The regional haze modeling guidance recommends cal culating visibility improvement at IMPROVE monitors because that is how reasonable progress will be measured in the regional haze program.



### 15. Appropriateness of Emission Projections that are Lower than CSAPR Budget Allocations

Commenter: Earthjustice on behalf of a number of organizations

Comment: EPA’s Assumptions about Emission Reductions under CSAPR Are Not Consistent with CSAPR’s Own Requirements In the better than BART rule, EPA has assume d that both Alabama and Georgia will emit fewer

tons of SO 2 than allowed under each state‘s respective emission budget in the original CSAPR rulemaking as described in the table below. Si milarly, EPA has assumed that Alabama, Kansas, Pennsylvania, and West Virginia each will emit fewer tons of NOx than allowed in each state‘s respective emission budget in the original CSAPR rulemaking as described in the table below. Assuming that these CSAPR states will emit less SO 2 or NOx than CSAPR requires is not only unfounded, but also may under-predict visibility imp airment, preventing detection of a likely decline in visibility in Class I areas. See 40 C.F.R. § 51.308(e)(3)(i). Further, in EPA‘s current analysis, which considers BART in a vacuum without CSAPR, overstating SO 2 emissions reductions arbitrarily attributes added visibility improvements to CSAPR over BART, rendering CSAPR more likely to satisfy the second prong of the reasonable progr ess test undeservedly. See

id. § 51.308(e)(3)(ii).Page 91 of 151 Accordingly, EPA‘s proposal is arbitrary because it assumes without rational support that CSAPR will achieve greater emissions reduction s than the trading program requires. This approach is flatly at odds with the agency‘s proper refusal in ot her instances to allow states or

sources to claim credit for emission limitations or reductions that are not federally enforceable. See, e.g., CAA § 110(a)(2), 42 U.S.C. § 7410(a)(2); 40 C.F.R. § 51.308(d)(3).

EPA Response:

While the commenter’s observation that some stat es are projected to emit at levels lower than their budgets in 2012 is correct, th e EPA disagrees with the assert ion that there is no rational support for this. The Transport Rule is a cap-and-tr ade program that affords sources and states a variety of compliance strategies. States have em issions budgets that they may exceed (by up to 18% or 21%). Likewise, sources may emit at levels lower than their alloca ted portion of the state budget and sell their excess allowances to sources that wish to emit more. The IPM is a least-cost economic model that optimizes dispatch over bo th time and geography. There are more than 13 million variables and 1 million constraints informing the model. The prediction that certain states will emit lower than their budgets is not arbitrary. It is a very informed prediction of how states and their sources would respond to the economic incentives created under the Transport Rule. Moreover, EPA has real-world experience that conf irms that this type of behavior (a state’s tendency to emit at levels lowe r than its budget) does occur. We have seen emissions below budgets in response to previous trading programs such as the Acid Rain Program, the NOx Budget Program, and the Clean Air Interstate Rule. In each of these programs, there are instances of states emitting at levels lower than their budget levels.Page 92 of 151 The commenter provides data in Tables 13 and 14 (shown above) to su pport their asse rtion that

a number of states have lower annual NOx and SO2 emissions in 2014 in “CSAPR only” compared to “ CSAPR+BART elsewhere”. Based on these date, the commenter asserts that it is unfounded to assume that states would emit less than their CSAPR emission budgets. The EPA’s modeling of “CSAPR+BART elsewhere” correctly imposed all CSAPR relevant constraints and state budgets. However in response to the existen ce of the “BART elsewher e” control scenario, the system response of the power sector results in different level of emi ssions inside and outside of the CSAPR region (taking into account the variability limits and banking allowances). The Transport Rule is a trading program that afford s the covered states the flexibility to emit at varying emission levels as long as they do not ex ceed a state cap. This cap reflects the maximum amount of emissions a state may have.



### 16. Need to Appropriately Account for Reasonably Attributable Visibility Impairment (RAVI) and Potential “Hot Spots”

Commenter: Willie R. Taylor, Director, Office of Environm ental Policy and Compliance, U.S. Department of the Interior

Comment:

We are concerned that these emission differences combined with a liberal interpretation of better

than BART evaluation criteria w ill result in less progress in some Class I areas toward meeting the goals set out by the Regional Haze Rule. Th is will have an unintended consequence of placing an added burden on the Federal Land Managers to evaluate state-level deficiencies in the context of presumed "better than BART conclusi ons" and to press for these deficiencies to be rectified. Where the Transport Rule is not prot ecting visibility at sp ecific Class I areas, certification of Reasonably Attributable Visi bility Impairment (RAVI) will be the only mechanism available to Federal Land Managers to press for geographic enhancements to Transport Rule emission allocations. We ask that EPA consider the following weaknesses of the

better than BART evaluation and adopt our suggestions.

Section III C 4 of the NPRM retains 40 CFR 51.3 08( e)( 4) that allows states discretion to include geographic enhancements in their regi onal haze implementation plan for the BART analysis required to address R AVI. We recommend that Section I II C 4 explicitly state that the Transport Rule does not repla ce the BART analysis that is required to address RAVI

certification. The BART determination for RAVI n eeds to address the impairment at the specific

Class I area or areas. It is not appropriate to address RAVI by demonstrating regionally-average visibility improvement. This is currently relevant to the Department of the Interior's RA VI certification of visibility imp acts from the Sherburne County Ge nerating Station (Sherco) in Minnesota at Voyageurs and Isle Royale National Parks. Minnesota's BART determination for regional haze for Sherco did not alleviate these visibility im pacts and EPA is now conducting a

BART determination for RA VI for Sherco. The Transport Rule, in its current state, will not address these source-specific im pacts. This shortcoming of th e proposed rule needs to be

addressed before the rule is finalized.

Commenter: Earthjustice on behalf of a number of organizations

Comment: EPA Failed to Adequately Consider the Potential fo r Trading to Degrade Visi bility at the Class I

AreasPage 93 of 151 CSAPR is designed to give sources flexibility in meeting their emission allocations, and as such, allows BART-eligible sources—sources that may ha ve been required to in stall pollution controls to comply with BART requirements—to purchas e allocations rather than control emissions. These trading decisions can significantly impact whether and where CSAPR will create hot spots that could degrade visibility at the Class I ar eas, causing CSAPR to fail the first prong of the reasonable progress test. See 40 C.F.R. § 51.308(e)(3)(i).

As discussed above, CSAPR allows sources covered by the same trading program—e.g., the annual NOx program or the SO 2 Group 1 program—to trade allowances regardless of whether the sources are in the same state, creating inherent uncertainties about where and, as discussed in the next section, when states will choose to emit. Given these inherent uncertainties, EPA‘s analysis for the proposed CSAPR “better than BART ” rule does not and likely cannot assess the visibility impact of complex trading under CS APR on the Class I areas. EPA has not provided any assurance in light of trading that CSAPR will not degrade visibility at any Class I area, or that CSAPR will achieve as much visibility im provement in those areas as BART would. Thus, regardless of whether trading flexibility will assist the states in complying with the NAAQS, this flexibility is at odds with ensuring emissions re ductions and visibility im provement at specific

Class I areas under the regional haze rule.

To remedy potential hot spots arising from trad ing decisions, EPA proposes to allow geographic enhancements, which, among other measures, coul d require installation of BART to remedy visibility impairment that is reasonably attrib utable to a source or group of sources (RAVI BART). See, e.g., 76 Fed. Reg. 82219, 82224 & n.13. Certainly RAVI BART is critical to remedying existing impairment and must be implem ented no matter what the fate of the “better

than BART ” proposal. See 40 C.F.R. § 51.302 (setting forth the control strategies to address reasonably attributable visibility impairment). 98 However, RAVI BART cannot be relied upon to

prevent hot spots and associated degr adation under CSPAR. RAVI BA RT is reactive; it requires FLMs to voluntarily take action to address an existing problem, and thus will not spur proactive permitting or other actions to avoid degradation in the first instance. See id. §§ 51.302(c)(1), (4);

see also USFS Comments at 14 (explaini ng that relying on RAVI BART “shifts the burden of insuring that individual Class I area progress goals are maintain ed in areas where BART would have achieved greater visibility improvement th an the Transport Rule from the State to the affected Federal Land Manager ” ).

Thus, given the barriers and pr ocedural hurdles of imposing RAVI BART, EPA cannot rely on RAVI or other geographic enhancements to mitig ate the level of impairment at the multiple

Class I areas to save its “better than BART ” proposal, but instead must ensure in the first instance that the trading allowed under CSAPR w ill not degrade the Class I areas, as prohibited under the first prong of the reasonable progress test, 40 C.F.R. § 51.308(e)(3)(i). See USFS Comments at 14 (“While we be lieve preserving the RAVI BART process under 302(c) is of paramount importance and should be explicitly reaffirmed in this rulemaking, we believe that using the RAVI regulations to serve as the “regulatory backstop” to be an unreasonable expectation and contrary to the intended purposes of the requirements of Section 308(e) of the [Regional Haze Rule]. ” ); see also Sierra Club v. EPA , 356 F.3d 296, 298 (D.C. Cir. 2004) (“We agree with Sierra Club‘s principal contention that EPA was not authorized to grant conditionalPage 94 of 151 approval to plans that did nothing more than promise to do tomorrow what the Act requires today. ” ).

[FN 98] In the CAIR better than BART rulemaking, EPA went to great lengths to explain that it recognized that a BART-alternative under the Regional Haze Rule does not eliminate the requirement that states impose BART where necessary to address reasonably attributable visibility impairment. See 70 Fed. Reg. 39104, 39137 (July 6, 2005) (explaining, when finalizing the CAIR better than BART rule, that “[e]ven if a BART alternative is deemed to satisfy BART for regional haze purposes, . . . CAA section 169A(b)(2)‘s trigger for BART based on impairment at any Class I area remains in effect, b ecause a source may become su bject to BART based on “reasonably attributable visibility impairment‘ at any area ” (citing 40 C.F.R. § 51.302)).

Commenter: Kathyrn M. Amirpashaie/Sie rra Club, Kristin A. Henry, Sierra Club

Comment:

EPA’s “B etter T han BART” M odeling F ails To A dequately A ccount For CSAPR’s T rading A spect
and , T herefore , EPA C annot M ake Any A ssurances That V isibility D oes N ot D ecline In A ny C lass

I A rea

. EPA’s “better than BART” modeling and analysis is further flawed sinc e it does not account for CSAPR’s prominent trading program. Based on the inherent variability th at results from the ability to trade allowances under CSAPR, wher e budgeted emissions will ultimately be emitted and when they will be emitted is entirely c onjecture. As a result, EPA’s modeling, which operates under the assumption that sources will only emit up to their budgeted allowances is flawed. EPA’s modeling essentially consists of guesses and assumptions as to what emissions will be under CSAPR. It ignores th e very real possibility that s ources that impact Class I areas will purchase additional allowances and emit at le vels greater than EPA assumed in its modeling. As a result, EPA has failed to show that visibility will not decline in any Class I area. 40 C.F.R. § 51.308(e)(3)(i). EPA’s determination that there will be an overall improvement in visibility with

CSAPR versus BART is likewise flawed. 40 C.F. R.§ 51.308(e)(3)(ii). As a result, there is no basis for concluding that CSAPR will be “bette r than BART” under the revised versions of

CSAPR.

It seems as though EPA has failed to acknowledg e a critical distincti on between BART and CSAPR—namely, the fact that BART imposes emission limits on individual sources, where as CSAPR provides emission allowances to individual sources. Compare 42 U.S.C. § 7492(g)(2),

with Final Rule, Federal Implementation Plans: Interstate Transport of Fine Particulate Matter and Ozone and Correction of SIP Approvals , 76 Fed. Reg. 48208, 48271 (Aug. 8, 2011) (codified at 40 C.F.R. Parts 51, 52, 72, 78, and 97). This small yet si gnificant distin ction between the two alternatives is why CSAPR cannot provid e any real assurance that emissions from a particular source will not cause or contribute impairments of vi sibility in nearby Class I areas and why RHR’s BART requirements remain the appr opriate tool to ensure that EGUs comply with the CAA’s visibility protections. Wher eas CSAPR’s trading program leads to great uncertainty as to the ultimate dispersion of allowa nces in relation to Class I areas, an adequate source-specific BART limit will provide the necessary protection for Class I areas within the state—this is why the BART requirements are not onl y a part of the RHR, th ey are also explicitly mandated by the CAA itself. 42 U.S.C. §7491(b)(2)(A).

Given the geographical implications of its trad ing program, CSAPR does not ensure visibility will not decline at any Class I area in the state, or that ove rall visibility will improve. See 40 C.F.R. § 51.308(e)(3)(i),(ii). Under an emissi on trading program such as CSAPR, individualPage 95 of 151 sources can comply with their allowances by redu cing their emissions down to the level of their budget or by obtaining additional emission credits from other sources elsewhere within the state. As a result, sources are not necessarily required to install controls to reduce their pollution — instead, they have the option to purchase emissi on allowances, thereby allowing them to pollute

above their allocated limits. [FN 24] See, e.g. , 76 Fed. Reg. at 48252–53, 48271–72 (describing CSAPR’s trading program). This allows for a situ ation to arise in which an EGU (or a group of EGUs) with the potential to impact a protec ted Class I area emits a total tonnage of SO 2 and/or NOx that exceeds the tonnage value of its allowan ce holdings. As a result, EPA cannot really say

where the CSAPR reductions will occur since CS APR allows intra-state trading. Yet, EPA’s modeling does not account for this variation from budgeted allowances. Instead, the modeling assumes that the budgeted emissions for each E GU are a cap which cannot be exceeded. Based on the real world application of CSAPR and any other trading program , these “caps” are artificial and impermanent. Therefore, it is arbitrary and cap ricious for EPA to ignore the trading aspect of CSAPR and inappropriately assume that source s will emit at their Transport Rule emission budget when making its comparison of reductions required by BART and those required under

CSAPR. See State Farm , 463 U.S. at 43. More specifically, it is arbitrary to compare a real, source specific BART emission limit with a speculative cap under CSAPR’s cap and trade

program. Id.

Indeed, EPA is well aware of the fact that actual emissi ons for each EGU under CSAPR will vary from their allocated limits since these EGUs have the capability and are expected to trade emission allowances. [FN 25] Despite this know ledge, instead of cons idering the real-life application of CSAPR’s tradi ng program, EPA’s modeling cente rs around an unrealistic and improper assumption that the modeled EGUs will only emit up to their budgeted SO2 and NOx allowances. In other words, EPA’s modeling fail s to consider or account for the fact that emissions from certain EGUs may be significantl y higher than their allocated limits which may result in visibility degradation at nearby Cla ss I areas. As a result, EPA’s modeling improperly

favors CSAPR over BART.

EPA can speculate as much as it wants at what the actual emission rate a source subject to CSAPR will emit, but comparing an actual BART determined emission limit to a speculated emission rate under CSAPR is merely conjec ture. The uncertainty surrounding the actual

distribution of CSAPR’s SO 2 and NOx allocations derives from the fact that those allocations are a commodity. The value of this commodity is infl uenced by other commodities that are global in nature and rapidly changing in price. This includes the cost of coal, as well as the capital cost of renewable energy products such as wind turbines and solar panels. It also includes the cost of natural gas, which is becoming more and more of a global commodity as the export and import capability for liquefied natural gas and the natural gas pipeline from Alaska to the lower 48

advances. The value of CSAPR emission credits are also greatly influenced by weather, as weather has one of the biggest impacts on electricity demand and thus electricity generation. And with the effects of climate change already upon us , the ability to effectiv ely predict the impact weather trends will have on this commodity is becoming even more speculative. The unknown state of the future market, ther efore, makes it impossible for EP A to reasonably conclude that CSAPR is better than a source spec ific BART determination; especially when you speculate five, ten years out. It would be arbitr ary to ignore the chronological asp ect of this “better than BART” analysis.Page 96 of 151 [FN 24] While there are some restrictions on trading, intr a-state trading is still allowed under CSAPR. 76 Fed. Reg.

at 48271-72. [FN 25] EPA has long recognized that the flexibility provided by a trading program such as CSAPR can lead to reasonably attributable visibility impairment at a Class I area if a power plant that causes or has the potential to cause visibility impairment at a Class I area purchases emis sion allowances rather than reducing emissions. 70 Fed. Reg. 39104, 39137 (July 6, 2005) (discussing visi bility hot spots under the CAIR trading program); see also 40 C.F.R. § 51.308(e)(4) (providing for “geographic enhancements” under CAIR).

Commenter: Kristin A. Henry, Sierra Club

Comment: Given the geographical implications of its trad ing program, CSAPR does not ensure visibility will not decline at any impacted Class I area in th e state or that visibility will improve in the impacted states. Under an emission trading pr ogram such as CSAPR, individual sources can comply with their allowances by reducing their em issions down to the leve l of their budget or by obtaining additional emission credits from other sources elsewhere within the state. As a result, sources are not necessarily required to install co ntrols to reduce their pollution—instead, they have the option to purchase emission allowances , thereby allowing them to pollute above their allocated limits.13 See, e.g., 76 Fed. Reg. at 48252–53, 48271–72 (describing CSAPR’s trading program). This allows for a situation to arise in which an EGU (or a group of EGUs) with the potential to impact a protected Cla ss I area emits a total tonnage of SO 2 and/or NOx that exceeds the tonnage value of its allowance holdings, ther eby potentially causing a visibility “hot spot”

that would not have occurred had that EGU been subject to the Regional Haze’s BART requirements. Indeed, EPA has long recognized that the flexibility provid ed by a trading program such as CSAPR can lead to reasonably attributable visibility impairment or visibility “hot spots” at a Class I area if a power plant that causes or ha s the potential to cause visibility impairment at a Class I area purchases emission allowances rather than reducing emissions. See discussion supra. Yet, EPA’s modeling does not account fo r this variation from budgeted allowances. Instead, the modeling assumes that the budgeted emissions for each EGU are a cap which cannot be exceeded. Based on the real world application of CSAPR and any other trading program, these “caps” are artificial and im permanent. Therefore, it is arbitrary and capricious for EPA to ignore the trading aspect of CSAP R and inappropriately assume th at sources will emit at their CSAPR emission budget when making its compar ison of reductions required by BART and those required under CSAPR. See State Farm, 463 U.S. at 43.

More specifically, it is arbitrar y to compare a real, source specific BART emission limit with a speculative cap under CSAPR’s cap and trade program. Id. EPA can speculate as much as it

wants at what the actual emission rate a source subject to CSAPR will emit, but comparing an actual BART determined emission limit to a spec ulated emission rate under CSAPR is merely conjecture.

These arbitrary assumptions could have on the gr ound visibility issues for Class I areas. There are nine power plants with fifteen generating units that are within 300 km of at least one class one area. For example, Tanners Creek power plan t is within 237 km, Hard ing Street Station is within 279 km, Petersburg power plant (with 3 el igible BART units) is within 177 km, Wabash River Generating Station is within 282 km, F. B. Culley Generating Station (with 2 eligible BART units) is within 132 km, Frank E. Ratts (with 2 eligible BART units) is within 177 km, Gibson power plant (with 2 elig ible BART units) is within 194 km, A.B. Brown GeneratingPage 97 of 151 Station is within 160 km, and Merom power plant (with 2 eligible BART units) is within 240 km

of Mammoth Cave National Park. Indiana is su pposed to develop and the EPA is supposed to approve a long-term strategy for doing its part to ensure that Class I Areas in other states achieve uniform rates of progress on reducing visibility im pacts and remain on a glide path for restoring visibility to natural conditions by 2064. Since some or all of thes e sources could choice to meet their obligations under CSAPR through allowanc es, Indiana can have a profound effect on a

number of Class I areas abili ty to meet the glidepath.

Commenter: Earthjustice/Texas

Comment: BART-Eligible EGUs in Texas Will Cause Visibility Hot Spots under CSAPR The proposed partial FIP for Texas is also unsupp ortable because it allows for entire groups of haze-emitting sources to continue impairing visib ility, thus creating visibility “hot spots.” The “reasonably attributable visibility impairme nt” provisions of 40 C.F.R. § 51.302(c) require BART limits to remedy such visibility hot spots. Under 40 C.F.R. § 51.302(c), BART is required

whenever certain sources—such as EGUs—cause or contribute to reasonably attributable visibility impairment at one or more Class I areas. This BART requirement is separate and additional to the RHR’s BART requi rements at 40 C.F.R. § 51.308(e). See, e.g. , Email from Pat Brewer, NPS, to Martha Keating, EPA (Dec. 16, 2011, 1:02 PM) (NPS comments to EPA that “nothing in 308 changes the 302 requirement for re sponding to [reasonably attributable visibility impairment]”) (Exh. 12).

“Reasonably attributable visibili ty impairment” is defined as “visibility impairment that is caused by the emission of air pollutants from one, or a small number of sources.” Id. § 51.301. A source “causes” visibility impair ment if it causes a 1.0 dv change or more at one or more Class I areas, and a source “contributes” to visibility impairment if it causes a 0.5 dv change or more.

See 40 C.F.R. Pt. 51, App. Y, at III(A)(1); 70 Fed. Reg. at 39118, 39120–21. Further, “[b]ecause circumstances will vary in different locations,” stat es also have the ability to set the visibility impairment contribution threshold lower than 0.5 dv. 70 Fed. Reg. at 39121. If an affected Federal Land Manager certifies the existence of reasonably attributable visibility impairment from a BART-eligible source or group of sources, the state or EPA must impose emission limits at least as stringent as those required unde r New Source Performance Standards for those sources. 40 C.F.R. § 51.302(c)(2) & (c)(4). More over, the states and EPA may require BART limits to remedy reasonably attributable visibi lity impairment without a Federal Land Manager certification. 76 Fed. Reg. at 82224 n.13. [FN20]

Under an emission trading program such as CSAP R, power plants are not required to install controls to clean up their pollution. While power plants may opt to reduce emissions to meet their source allocations, they may instead purch ase emission allowances from other power plants. See, e.g. , 76 Fed. Reg. at 48252–53, 48271–72 (describing CS APR’s trading program). This can lead to visibility hot spots when a power plant near a Class I area purcha ses emission allowances from a distant power plant rather than redu ces emissions. EPA has l ong recognized that the flexibility provided by a trading program such as CSAPR can lead to reasonably attributable visibility impairment, or visibility hot spots, at one or more Cla ss I areas if a source or a small group of sources that causes visibility impair ment at the Class I area purchases emission

allowances rather than reduces emissions. 70 Fe d. Reg. at 39137 (discussing visibility hot spotsPage 98 of 151 under the CAIR trading program); see also 40 C.F.R. § 51.308(e)(4) (providing for “geographic enhancements” under CAIR).

In such cases, BART limits for those EGUs that are reasonably anticipated to cause or contribute to visibility impairment remain a critical tool to ensure that where a BART-alternative program fails to ensure adequate prot ection of one or more Class I areas, that program may be supplemented by existing complementary provis ions in the Clean Air Act and the RHR. Accordingly, EPA stressed in its proposed “bet ter than BART” determination for CSAPR that BART remains as a backstop to remedy any reasonab ly attributable visibility impairment that occurs under CSAPR and its trading pr ogram. 76 Fed Reg. at 82221, 82224 & n.13. The National Park Service, which has an affirmative duty to protect visibility at its Class I areas, insisted that EPA’s proposed rule provide clarity on this important point. For example, the Park Service asked EPA to clarify “in the regulation, not just the pream ble” to the proposed rule that nothing in the rule “changes the . . . requirement [s] for responding” to reasonably attributable visibility impairment,” or visibility hot spots, under 40 C.F.R. § 51.302. Exh. 12. It is critical that at a minimum, the reasonably attributable visibi lity impairment protections be left intact. EPA arbitrarily proposed a partial FIP for Texas and other CSAPR states that would exempt BARTeligible EGUs from BART without first conduc ting modeling to determine whether these EGUs would cause or contribute to visibility hot spot s under CSAPR. Accordingly, EPA has failed to

demonstrate that CSAPR would not allow for hot spots or reasonably attributable visibility impairment and cannot issue the partial FIP with out this demonstration, as explained in the accompanying Earthjustice comment letter.

Further, the available evidence indicates that had EPA conducte d modeling, it would likely have demonstrated that BART-eligible EGUs in Texas will cause visibility hot spots at multiple Class I areas even if they reduce their emissions to the allocations now allowed under CSAPR. Modeling conducted by Dr. Tammy Thompson at the Massachusetts Institute of Technology demonstrates that even if BART-eligible EGUs at Big Brown, Martin Lake, Monticello, and Welsh power plants reduce emissions to meet the CSAPR allocations, they would cause reasonably attributable visibility impairment at Big Bend and Guadal upe Mountains National Parks and Caney Creek and Wichita Mountains Wilderness Areas. Dr. Thompson’s modeling compared visibility impacts under CSAPR to a scenario where emissions from the BARTeligible EGUs at Big Brown, Martin Lake, Monticello, Welsh, and 3 other non-EGU BARTeligible sources were zeroed out. [FN 21] The results, presented in Tables 3 and 4, demonstrate that under CSAPR, these BART-eligible EGUs will cau se or contribute to visibility impairment

at four Class I areas on at leas t a total of 101 days annually.Page 99 of 151 [FN22] Dr. Thompson’s final report on the visibility im pacts of Big Brown, Martin Lake, Monticello, and Welsh will be available soon after the February 28, 2012 d eadline for comments on EPA’s proposed rule. When Dr. Thompson’s final report is issued , NPCA and Sierra Club will provid e a copy of the report to EPA. [FN23] Maximum daily visibility impact values demonstrate the potential for visibility hot spots under CSAPR if EGUs are exempted from the RHR’s BART requirements. CAMx models were used to produce these results, and the CAMx model underestimates visibility impact where the CALPUFF model is known to overestimate visibility impact. The BART Guidelines require the use of the 98th percentile of modeled visibility values for CALPUFF in

order to minimize the likelihood that the modeling results will represent anom alies. Because CAMx is differently constructed, it is more accurate to represent results reflec ting the worst impairment days in terms of maximum daily impact.

It is important to note that the visibility impacts highlighted above are conser vative for several reasons. First, the modeling is based on the initial SO 2 and NOx budgets for EGUs underPage 100 of 151 CSAPR (for consistency with EP A’s modeling protocol), rather than the recently finalized

revisions to CSAPR that woul d significantly increase the SO 2 and NOx budgets for Texas EGUs. See supra at 14–15. Thus, the SO 2 and NOx emissions—and the visibility impacts—of Texas EGUs will likely be greater under CSAPR than the modeling suggests. Second, BART-eligible EGUs in Texas will be able to purchase emissions allowances from distant EGUs in Texas and other states under CSAPR, rather than reducing actual emissions to the SO 2 and NOx allocation

levels. See supra at 6 &12 n.15. As a result, the modeling re presents a best-case scenario that assumes that Texas’s BART-eligible EGUs will reduce their emissions to the level of the SO 2 and NOx budgets under CSAPR. Ev en under this best-case scenar io, these BART-eligible EGUs

in Texas will cause or contribute to visibili ty impairment at Big Bend, Guadalupe Mountains, Caney Creek, and Wichita Mountains. The reality will likely be worse for these National Parks and Wilderness Areas, as it is unlikely that these EGUs will reduce their SO 2 and NOx emissions to the level assumed by the modeling.

In addition, estimated emissions from all BART-e ligible EGUs in Texas indicate that every BART-eligible EGU in the state wi ll likely cause visibility impa irment under CSAPR. States and Federal Land Managers routinely rely on the ratio of quantity of emissions over distance to the nearest Class I area (Q/d values) to identify s ources that may be subject to BART. A Q/d value of 10 or greater generally indica tes that a source causes or contri butes to visibility impairment and dispersion modeling is warranted. See, e.g. , 76 Fed. Reg. 58570, 58624 & n.83 (Sept. 21, 2011) (describing how the BART guidelines a nd the Federal Land Managers’ proposed FLAG guidance amendments set a Q/d threshold value of 10). The Q/d value for every BART-eligible EGU in Texas under CSAPR would be far greater than 10. See Table 5.

The hot spots at Class I areas caused by em issions from the BART-eligible EGUs inPage 101 of 151 Texas could be alleviated thr ough the installation and operation of appropriate BART controls.

None of these EGUs have installed modern BART controls for both SO 2 and NOx. See Table 1. As discussed above, BART would result in si gnificantly greater em ission reductions from Texas’s BART-eligible EGUs than CSAPR. See supra at 17–18.

Because the BART-eligible EGUs at Big Brow n, Martin Lake, Monticello, and Welsh will

continue to cause or contribute to visibility impairment at mul tiple Class I areas under CSAPR, EPA cannot exempt these EGUs from BART. More over, because the Q/d values for the other BART-eligible EGUs in Texas indicate that they likely also cause or contribute to visibility impairment at one or more Class I areas unde r CSAPR; further modeling is required, at a minimum. If modeling demonstrates that these E GUs also cause or contribute to visibility impairment at one or more Class I areas under CSAPR then they too cannot be exempted from

BART. When a BART-alternative resu lts in a visibility ho t spot at a Class I area, it is incumbent upon EPA to require BART controls or other geogr aphic enhancements to remedy the reasonably attributable visibility impairment. See 76 Fed Reg. at 82221, 82224 & n.13. Consequently, to the extent that CSAPR allows any EGUs subject to BART to continue impairing visibility, the regional haze plan for Texas must require BART controls or other geog raphic enhancements to ensure that the reasonably attributable visibil ity impairment at affected Class I areas will be

remedied.

[FN 20] Unlike the RHR, EPA regulations do not provide for BART-alternative exemptions when a source is subject to BART due to reasonably attributable visibility impairment. Compare 40 C.F.R. § 51.302(c), with id. § 51.308(e)(2). [FN 21] The 3 non-EGU BART-eligible sources included in Dr. Thompson’s modeling were TXI Operations Midlothian Cement plant, Eastman Chem ical Co., and Texarkana Paper Mill.

EPA Response:

Please see section IV .C of the preamble to the final rule for the EPA’s response to comments

related to RAVI.



### 17. Timing of Reductions, Possibility for Emissions during Bad Visibility Days

Commenter: Earthjustice on behalf of a number of organizations

Comment:

EPA Failed to Consider When States Will Use Allo wances, Potentially Overstating the Visibility Benefits Provided by CSAPR EPA’s analysis potentially overstates the air quality benefits provided by CSAPR because EPA

failed to consider that while allowances ar e issued for a given y ear, sources are under no obligation to ration the allowances out over the year. Instead, as some coal plants are already planning to do, a source might choos e to save its allowances for use during the summer ozone period when demand for electricity is at its peak and to idle during the rest of the year, failing to reduce emission during the months when Class I areas may be most especially likely to experience degradation in visibility. This, in turn, makes it unlikely that CSAPR will pass the first prong of the reasonable progress test. See 40 C.F.R. § 51.308(e)(3)(i).Page 102 of 151 For example, Luminant Generation Co. has indicated that it would idle un its at Monticello in Texas when demand is low, but for D.C. Circuit Court of Appeals‘ recent decision to stay implementation of the rule, 99 and the Tennessee Valley Authority has likewise indicated it is considering idling when demand is low at many of its plants in Kentucky. 100 If each of these sources chooses to emit during peak ozone season and idle in the off season, the visibility

benefits that BART could achieve will not materi alize, and it is possible that visibility will degrade at nearby Class I areas. Under these circumstances, CSAPR cannot be deemed better

than BART. See 40 C.F.R. §§ 51.308(e)(3)(i)-(ii).

In addition, because the comparison under 40 C.F.R. § 51.308(e)(3)(ii) is based on the worst and best days rather than every da y, EPA cannot say that CSAPR will improve visibility more than BART because EPA cannot say during what days CS APR sources will emit at their highest level. This problem is not only intra-ye ar but inter-year. That is CSAP R allows banking of allowances so that sources can emit at a high level and thus ha ve high visibility impact s in a particular year versus source-specific BART that guarantees visibility at the same level every year. See 40 C.F.R. §§ 97.426, .526, .626, .726. Failure to account for the temporal implications of the use of allowances renders EPA‘s analysis of the vi sibility benefits under CSAPR inadequate to

demonstrate that CSAPR is better than BART

Commenter: Earthjustice/Texas Comment: (footnote 19 to letter) [FN 19] EPA also overestimated the visibility benefits of CS APR by failing to consider that Texas power plants will likely idle several E GUs during the winter months when power demand is low, but generate electricity during the su mmer months when power demand is high. As the accompanying Earthjustice comment letter explains, Luminant Generation Co. has stated that it

will idle two Monticello EGUs when demand is low so as to preserve its CSAPR SO 2 allowances for periods of high demand. If these Monticello units generate electric ity in the summer at quantities up to their annual CSAPR SO 2 budget, visibility will likely degrade significantly during the months when the Monticello units are in operation, which is also when meteorological patterns at affected Class I areas are most unfavorable for exacerbating the effects of hazecausing pollution. In contrast, BART would resu lt in a consistent year-round reduction of emissions. In short, EPA has not accounted for important temporal implications of CSAPR and

the likelihood of seasonal visibil ity hot spots at Class I areas.

EPA Response: In general, most of the emissions regulated by CSAPR are from base-load rather than “loadfollowing” units. This means they are units that tend to operate at relati vely constant and high capacity utilization thro ughout the year. Typically , load-following EGUs which increase their level of operation in the summer tend to be lo wer-emitting natural gas-fired units. Given the stringent annual constraints on SO 2 and NO X from the EGU population as a whole on both a state and regional basis, EPA does not believe there is any credible scenario under which curtailment of individual plant ope rations would have the effect of shifting annual emissions to any given season. Although there may be some count er-examples, especially over the very shortterm, EPA believes as a whole these base-load units will continue to operate in as similar fashion given that they provide the lowest -cost electricity to the grid. A ccordingly, EPA expects, and our

IPM results indicate that these units will be taking concrete measures to reduce emissionsPage 103 of 151 throughout the year. As noted above, once these meas ures are in place, there are powerful market incentives for continuous implementation of those measures.



### XII. Emissions Overestimated in EPA’s Base Case

Commenter: James A. Capp, Georgia Environmental Protection Division

Comment: EPA’s Concern that Emissions May Incr ease without CAIR is Baseless EPA conducted a rulemaking in 2005 that result ed in the emission levels achieved by CAIR being determined to be “better than BART.” It should be noted that it is emissions reductions that result in improvements in visibility. The sp ecific acronym that is created by a government official does not improve air quality. Due to CA IR’s remand, EPA has refused to process many state SIPs, including Regional H aze SIPs, on the basis that EGU emissions could increase when CAIR goes away. However, EPA has produced no evid ence that this could r ealistically occur. In fact, in EPA’s own analysis for the Transpor t Rule, EPA concluded that, without CAIR, the emissions in Georgia would be well below th e levels allowed by CAIR due to emissions reductions required by the State. EPA cannot have it both ways. EP A cannot disapprove part of our Regional Haze SIP due to the uncertain status of CAIR while at the same time EPA is imposing emission budgets that ar e significantly lower than CAIR due to emissions reductions required by the State. Therefore, EPA should fu lly approve our Regional Haze SIP that was submitted to the agency more than two years ago.

Commenter: Earthjustice on behalf of a number of organizations

Comment: EPA’s 2014 Base Case Does Not Account for Hi storic Emissions Reductions at Non BARTeligible Sources, Thereby Overesti mating the Benefits from CSAPR EPA relied on a base case that ignores SO 2 emissions reductions that non-BART eligible sources have already achieved in res ponse to other federal and stat e air programs and enforcement

actions. 101 In so doing, EPA gave CSAPR an artificia l advantage over BART on prong 2 of the reasonable progress test in EPA‘ s already skewed analysis, wh ich evaluates Nationwide BART in the absence of CSAPR. 40 C.F.R. § 51.308(e)(3)(ii).

In assessing CSAPR as a potential BART alterna tive, EPA established the 2014 base case as its visibility baseline. EPA then used this base case to calculate the expected visibility reductions under “Nationwide BART” [FN 102] and the “Transport Rule + BART-elsewhere”[FN 103] over

and above the base case. See 76 Fed. Reg. 82,219, 82,224. As EPA recognizes, the 2014 base case is central to the analysis. See TSD at 12 (explaining that “[t]he cornerstone of [EPA‘s] modeling process was the 2014 base case modeling scenario, which contains emissions for 2014 based on predicted growth and existing emissions controls ” ).

However, EPA‘s projected base case fails to pr ovide a realistic basis for evaluating reliance on CSPAR in place of BART. The base case purports to include constraints on EGU emissions from the Acid Rain Program, the NOx SIP Call, New Source Performance Standards, Title V permits, any state laws and consent order requiring em ission reductions, and any other permanent and enforceable binding reduction commitments. ” 76 Fed. Reg. at 82224. [FN 104] However, it failsPage 104 of 151 to accurately reflect emissions reductions at non- BART eligible sources from historic fuel switching decisions or failure to ac count for historic installation of scrubbers that were unrelated to CAIR. Likewise, the base case does not in clude emissions reductions already achieved under the CAIR program at non BART-eligible sources. To the extent that these emission reductions are permanent—i.e., will apply regardless of wh ether CAIR is replaced with another trading program—they should be reflected in the baseline. To the extent that CSAPR preserves these emissions reductions, they should be reflected in both the CSAPR and the BART + CSAPR scenarios described in Section VII.B, supra

.

For example, as explained in more detail in Tables 3-1 to 3-2 submitted as an attachment, in the following instances, EPA failed to account for historically low SO 2 emissions due to pre-CAIR

decisions to install scrubbers or switch fuel type [FN 105] at n on-BART eligible sources in the

CSAPR states in the 2014 base case — a failure that translated to higher than appropriate

emissions in the Nationwide BART scenario. This failure also credited CSAPR with far greater

emission reductions than it actual ly can be expected to induce.Page 105 of 151Page 106 of 151 [FN 106] The emissions included for the base case were taken from the results of EPA‘s Integrated Planning Model for this proposal, 2014 basecase, available at http://www.epa.gov/visibility/actions.html. [FN 107] The emissions included for the 2014 Nationwide BART scenario were taken from the results of EPA‘s Integrated Planning Model for this proposal, National BART 2014 spreadsheet, available at http://www.epa.gov/visibility/actions.html. [FN 108] The historic emissions values were selected based on the highest emissions reported from 2003-2010. The data for the years 2006-2010 were the values EPA used in the CSAPR better than BART rulemaking to make its unit

level allocations. See EPA, Technical Information and Support Documents, Technical Support Documents for the Final Cross-State Air Pollution Rule (CSAPR) and the Supplemental Notice of Proposed Rulemaking (SNPR), *Final CSAPR Unit Level Allocations under the FIP and Underlying Data, available at http://www.epa.gov/airtransport/techinfo.html. For the year s 2003-2005, the historic emissions were generated from the Clean Air Markets website, http ://camddataandmaps.epa.gov/gdm/index.cf m?fuseaction=emissions.wizard.

These examples of EPA‘s failure account for historic emission decreases were selected by identifying all BART-eligible units where the SO 2 emission rate modeled in EPA‘s “Nationwide

BART ” scenario was greater than 0.30 lb/MMBtu and where the historic emission rate, as reported in CAMD for 2010 or 2011, was less than the emission rate modeled. This provides a subset of the most egregious in stances of EPA‘s failure to acc ount for lower historic emission rates, and other examples may we ll exist throughout the model.

Notably, three of the EGUs included in Table 14 above operate FDG scrubbers installed prior to

1996. A B Brown Unit 2 installed an FGD in 1986 with a design SO 2 removal efficiency of 90% (as reported on DOE EIA Form-860R) and operate d during 2008 (the year with the highest SO 2 emissions during 2003-2010 time period) with a re moval efficiency of 88.4% (as reported on DOE EIA Form 923). Clay Boswell Unit 2 inst alled an FGD in 1980 with a design removal efficiency of 83.2% (as repor ted on DOE EIA Form-860R) and operated during the maximum

SO 2 emissions year 2007 with a removal effici ency of 25.4% (as reported on DOE EIA Form 923). B L England Unit 2 installed an FGD in 1995 with a design re moval efficiency of 93% (as reported on DOE EIA Form-860R) a nd operated during the maximum SO 2 emissions year 2003

with an SO 2 removal efficiency of 93% (as reported on DOE EIA Form-923).

In each of these three examples, the FGD was installed many years before implementation of CAIR, and the units operated during 2003-2010 with annual SO 2 emissions equal to or less than

the maximum SO 2 emissions reported in Table 14 above. Furthermore, in each case, both the design removal efficiency, and the actual operating SO 2 removal efficiency for these EGUs are less than the 95% presumptive BART SO 2 removal efficiency EPA has prescribed for National BART. Yet EPA has assigned SO 2 annual emissions and emission rates in the Nationwide BART scenario that greatly exceed even the highest reported emi ssion rates for the maximum SO 2Page 107 of 151 emissions years when the FGDs operated at less than EPA‘s presumptive BART removal efficiency.

[FN 101] EPA‘s base case also failed to take account of hi storic SO2 emission reductions at BART-eligible sources. The most egregious example of this failure is at units 1-3 of the Harrison Power Plant in West Virginia. Although these three units have operated wet scrubbers since 1995 , EPA‘s base case estimated that each unit would emit SO2 at a rate of 4.28 lb/MMBtu, a rate that is more than four times greater than the 0.14 lb/MMBtu (Unit 1), 0.10 lb/MMBtu (Unit 2), and 0.11 lb/MMB tu (Unit 3) SO2 rate that each un it averaged over 2005-2010 according to

information on CAMD. See EPA Scrubber and SCR Retrofit Data submitted to the Senate Committee on Environment and Public Works, available at http://epw.senate.gov/public/index.cfm?FuseAction= Files.View&FileStore_id=a0437dd3-b584-4796-9ad0- 926bb0dc3de9 (indicating that Harrison installed scrubbers in 1995). The failure to account for historic emission reductions result at Harrison Units 1-3 alone overstated SO2 emissions in the base case by 263,289 tons. Any failure to properly account for long-standing emission control technology and historically low emissions in the base case could impact the technology assumed in the BART and CS APR scenarios, which in turn affects how the IMP model will predict emissions at other sources and ultimately visibility impairment at the Class I areas. Rather than point out all such errors, these comments focus on problems in the ba se case at units that are not subject to BART, as in this situation only the Transport Rule + BART-elsewhere s cenario, and not the Nationwide BART scenario, has an opportunity to make up for EPA‘s error. However, EPA must review the assumptions in its base case to ensure accurate modeling. [FN102] The Nationwide BART scenario is defined in footnote 24, supra

. [FN103] The Transport Rule + BART-elsewhere scenario is defined in footnote 25, supra

. [FN 104] It is unclear whether EPA‘s modeling has taken into account all consent decrees as the modeling input spreadsheets do not break down limits imposed at each sour ce. EPA must apply the consent decrees and must make

it clear that it has. Failure to do so renders the mode ling arbitrary. [FN 105] It is safe to assume that the historic 2003-2010 SO2 emissions were not constrained by CAIR because the emission rates and annual emissions for the post-CAIR years 2006-2010 were consistent with the rates and annual emissions for the pre-CAIR period viewed, 2003-2005.

EPA Response:

A B Brown Unit 2 is a BART unaffected unit wi th an existing scrubber operating with 82% removal (as reported in 2007 EIA Form-860 on which our NEEDS inventory was based). The commenter likely mixed up Clay Boswell Units 2 and 4. Clay Boswell Unit 2 does not have a

scrubber in NEEDS and a scrubbe r was not reported in the 2 007 EIA Form-860. However, Clay Boswell Unit 4 has a scrubber (which was mode led as operating). B L England does have a dispatchable FGD, meaning this is a physically existing FGD, however without CAIR or CSAPR the unit makes the economic choice of not operati ng its FGD while complying with all relevant

environmental constraints.

Commenter: National Parks Conservation Association on behalf of numerous organizations:

Comment: EPA purports only to show that CSAPR is be tter than BART nationwide. Neither EPA nor Georgia has attempted to demonstrate that CS APR is better than BART for Georgia. The existing analyses demonstrate that CSAPR doe s not provide greater emission reductions at BART eligible EGUs in Georgia that likely ca use or contribute to visibility impairment, and therefore will not achieve grea ter than reasonable progress at implicated Class I areas.

For example, the 104 MW Kraft Unit 3 is 90 km from Wolf Island Wilderness, and within 300 km of Cape Romain Wilderness and Okefenokee Wilderness as well. This unit has no controls

for NOx or SO 2 . As controlled by BART, and utilizing modern technology, its emissions couldPage 108 of 151 be reduced by more than 90% (NOx) and 99% (SO 2 ). By contrast, CSAPR will require only reductions of around 79% for each pollutant, ba sed on 2010 emissions. Similarly, Yates Units 6 and 7, each 404 MW and both operational in 1974 ar e 167 km from Cohutta Wilderness. Yates is also within 300 km of Great Smoky Mountai ns National Park, Joyce Kilmer-Slickrock Wilderness, Shining Rock Wilderness, and Sips ey Wilderness. These units have combustion

controls for NOx but no add-on NOx or SO 2 controls. Under BART, th ey would be candidates

for 90 and 99% control of NOx and SO 2 , respectively. Under CSAPR, assuming these units do not choose to trade instead of reducing emissi ons, NOx will be reduced between 63-66% from

2010 levels and SO 2 about 87% at each unit.

The same pattern holds for the other BART-eligib le EGUs that have not yet installed SCR or scrubbers – CSAPR requires fewe r emission reductions from ex isting emissions than would BART. However, several EGUs ha ve already installed these add- on controls and benefited from significant emission reductions , including Bowen Units 1-4, Wansley Units 1 and 2, and Hammond Unit 4. At these facilities – with ju st one exception – CS APR allocations are significantly higher than necessa ry for those units – often allo wing double or triple the existing emissions. In one instance, the CSAPR allocatio n exceeds six times the 2010 actual emissions at the facility. The clear danger here is that these excess a nd unnecessary allocations have gone

unaccounted for in EPA’s baseline and will like ly be traded to fac ilities without existing controls, decreasing the likelihood that emission reductions at the sources most impacting Class I areas will actually be realized.

EPA Response: Section V.B of the Transport Rule Preambl e (76 FR 48223) explains why EPA assumed no

CAIR related reductions in its base case. For th is rulemaking, EPA starts from the same position.

That is for both scenarios – “Nationwide BA RT” and “Transport Rule + BART” – previous SO 2 emission reductions are not implicitly assumed to continue indefinitely into the future simply because they occurred in the past. For exampl e, both Transport Rule and non-BART affected sources have the inherent flexibility to switch ba ck to a higher sulfur coal. EPA disagrees with the commenter’s suggestion that future emission profiles should be pegged purely to historic operation, ignoring already occurring or anticipa ted changes in policy and market drivers.

Under the “Transport Rule + BART” scenario, sour ces are projected to operate existing controls

due the economic incentives created under the trans port rule. The economic in centives of the rule

will also lead to a continuation of much of the coal switching that had previously occurred at units under CAIR. However, this is driven by the economic incentiv es of the Transport Rule, not a blanket assumption that a unit would continue to burn the same fuel that it had in the past. In fact, there are some units in the “Transport Rule + BART” scenario that switch to a higher sulfur coal from what they burned in the past. For in stance, if another unit in the state installed a pollution control due to a consen t decree and is providing emission reductions that contribute to compliance with the state’s emission budget, than a particular affected un it that had previously burned a low-sulfur coal may no longer find it economic to do so as demand for those allowances is reduced. The EPA’s “Transport Ru le + BART” as well as the “nationwide BART” scenario would reflect this flexibility for a source to switch to coal higher in sulfur than that which it historically consumed, and therefore th ere is no advantage given to CSAPR over BART in EPA’s analysis.Page 109 of 151 The comment seems to fail to account for the f act that CSAPR requires emission reductions at

the state level. Because there are no unit leve l requirements under CSAP R, there are no CSAPRrelated reductions that should be programmed into the “Natio nwide BART” analysis. In fact, doing so would directly contradi ct the market incentives and trading flexibilities on which CSAPR is based. For instance, as more BART affected units begin to reduce emissions; the expectation would be that the non-BART affected sources cove red under CSAPR in that same

state would reduce emissions less. That is, the market incentive for them to reduce emissions would be reduced as newly found emission reduc tions come from BART affected sources – reducing both demand for allowances (and conseq uently the price) as well as the burden of complying with the CSAPR state budget. Ther efore, the commenters suggestion that EPA assume that non-BART sources simply hold stea dy their emission reductions as BART-affected

sources make emission reductions contradicts th e behavior that woul d be an appropriate economic response. The consequence of EPA inco rporating such an assumption would be to overstate the air quality benefit of “Nationwide BART” scenario.

Table 15 (of the comments) lists a series of BART unaffected units with “2003-2010 reported historic emissions from EIA Form-860”, selec ting the highest reported value. The commenter then compares the selected repor ted historical values with EP A’s projected values for 2014 for

the Base Case and Nationwide BART. The co mmenter’s calculations suggest a number of misunderstandings and misinterpret ations of the reported data, as well as the modeling, in the assertion that EPA’s modeling did not account appropriately for “historically reported low level of mandatory emission limits” hence the Base Case and the Nationwide BART model outputs have erroneously high emissions.

Historic emissions are a function of the sulfur content of the fuel used at a specific year and the level of dispatch, as well as wh ether an existing control operates or turned off. Reported historic emissions are not mandatory emission limits. Base Case and Nationwide BART modeled in this analysis reflect a no CSAPR/CAIR policy case wh ere units with physically existing FGDs that were installed prior to a certai n year were allowed to make an economic choice regarding the operation of their post-combustion co ntrols. This ability is called having a dispatchable control. The rules for dispatchable scr ubbers and SCRs on coal units were documented in the Proposed TR (see http://www.epa.gov/airmarkets/progsregs /epa-ipm/IPM_Update_Documentation.pdf ).

Rules for dispatchable scrubbers on coal units:

1. If the unit online year is 1990 or later then the scrubber will not be dispatchable. Such units are likely to be new un its required to control.

2. If the unit is online before 1990 and if the scrubber is online in 1992 or earlier then the scrubber will not be dispatchable . These scrubbers were most likel y built for a reason other than compliance with the Title IV Acid Rain Program.

3. If the unit is online before 1990 and if the scru bber is online in 1993 or later then the scrubber will not be dispatchable if it is mandated by NSR, state settlement or state-specific rule and the scrubber is online by the end of 2011.Page 110 of 151 4. If the criteria in (1–3) are not met, then scrubbers will be dispatchable.

Rules for dispatchable SCR contro ls on coal units within the CA IR region but outside the SIP Call region:

1. If the unit online year is 1990 or later then the SCR will not be dispatchable. Such units are likely to be new units required to control. . If the unit’s firing type is cyclone and the SCR is online in 1999 or earlier then the SCR will not be dispatchable. Such a control was most likel y installed for compliance with the Title IV NOX Program or an earlier mandate.

3. If the unit is online before 1990 then the SCR w ill not be dispatchable if the SCR control is mandated by NSR, state settlement or state-specifi c rule and the control is online by the end of

2011.

4. If the criteria in (1–3) are not met then SCR controls will be dispatchable.

EPA modeling does not intend to simu late historic emissions that actually occurred under certain

environmental constraints and historic market conditions. EPA’s Base Case modeling reflects the

level of emissions that would o ccur in the absence of CAIR a nd CSAPR; the Nationwide BART

run reflects the emissions that would occur with the presence of BART only. EPA modeling uses various information from EIA Form-860, howev er, commenter misinterprets SO2 emissions reported to EIA as “emission limits” or “mandato ry limits.” These historical values are not emission limits but reported emissions that ma y differ year to year based on the least-cost optimization decisions a unit may make. In any mode ling scenario or an actual historical year, the units are constrained by permit limits, accessible coal types and environmental rules in effect, allowing the unit to make a decision to operate a control or not, a nd to a higher S content coal or not and hence emitting less than their permitted limits. Furthermore, in most of the calculations, commenter uses 2010 reported emissions a ssuming 8760 hours of dispatch (i.e. 100% availability or dispatch). IPM assumes 85% maxi mum availability for coal units based on data from NERC GADS (2001 to 2005) and AEO 2010 (see page 3-12 of IPM documentation for

CSAPR at http://www.epa.gov/airmarkets/progs regs/epa-ipm/docs/v410/Chapter3.pdf This inconsistency results in further discrepa ncy between commenters’ calculated values and EPA’s projected values.

In summary, units listed in Tables 15 are all non-BART affected units showing a correctly projected behavior of higher emissions compared to historically reported values. The units listed

in Table 15 exhibit one or mo re of the following traits:

Do not have any controls and dispatch using a higher S content coal in EPA’s runs, properly constrained with the permit limits applicable to each unit. Have a scrubber operating with th e historically reported remova l efficiency using a higher S

content coal. Have a scrubber assigned as dispatchable base d on the explanation provided above and does not operate the scrubber.Page 111 of 151 Commenter: National Parks Conservation Association on behalf of numerous organizations:

Comment: Page 44, footnote 104: Commenter asks clarif ications regarding how consent decrees are

modeled.

EPA Response: All modeling inputs, including consent decrees and other environmental regulations and

constraints were documented in detail with th e CSAPR. Since the CSAPR better than BART analysis use previously document ed modeling platform and runs, th ese are referenced in CSAPR. http://www.epa.gov/airmarkets/pro gsregs/epa-ipm/transport.html http://www.epa.gov/airmarkets/progs regs/epa-ipm/docs/v410/Chapter3.pdf http://www.epa.gov/airmarkets/progsregs/e pa-ipm/CSAPR/docs/DocSuppv410_FTransport.pdf



### 1. Missing Mandatory Limits Reported to DOE/EIA Commenter: Earthjustice on behalf of a number of organizations

Comment:

EPA‘s failure to account for historic emission re ductions is critically wrong where EPA ignored reductions required by mandatory emission limits th at the plants themselves disclosed to the Department of Energy‘s Energy Information Admi nistration. For example, at the following 19 units included in Table 16, EPA failed to a pply these mandatory limits, overstating the Nationwide BART scenario by 220,389 tons of SO 2

.Page 112 of 151 By failing to take account of any emission redu ctions from pre-CAIR historic fuel switching

decisions or installation of scrubbers, per the above examples, and for permanent changes prompted by CAIR in the base case at non-BART -eligible sources, EPA pl aced the “Nationwide

BART ” scenario at an arbitrary disadvantage, a ffording CSAPR undeserved credit for requiring

emissions reductions on sources th at were already achieving those reductions. Indeed, historic

emissions are less than half of those modeled in the “Nationwide BART” scenario. Even where CSAPR achieves significant further reductions, it is fundamentally improper to compare CSPAR

to a Nationwide BART scenario with excess em issions. This flaw renders EPA‘s analysis arbitrary.

EPA Response: Please see the EPA’s response to the previous comment that e xplains why EPA cannot rely on historical fuel switching d ecisions, and why some scrubbers have an economic decision on whether they would be “dispatcha ble” under some circumstances.

EPA modeling uses various information from EIA Form-860, however, commenter misinterprets

SO 2 emissions reported to EIA as “emission limits” or “mandatory limits.” These historicalPage 113 of 151 values are not emission limits but reported emi ssions that may differ year to year based on the least-cost optimization decisions a unit may ma ke. In any modeling scenario or an actual historical year, the units ar e constrained by permit limits , accessible coal types and environmental rules in effect, allowing the unit to make a decision to operate a control or not, and switching to a higher S content coal or not and hence emitting less than their permitted limits. Furthermore, in most of the calcula tions, commenter uses 2010 reported emissions assuming 8760 hours of dispatch (i.e. 100% ava ilability or dispatch). IPM assumes 85% maximum availability for coal units based on data from NERC GADS (2001 to 2005) and AEO 2010 (see page 3-12 of IPM documentation for CSAPR at http://www.epa.gov/airmarkets/progs regs/epa-ipm/docs/v410/Chapter3.pdf This inconsistency results in further discrepa ncy between commenters calculated values and EPA’s projected values.



### 2. Need for More Current Emissions Basis for Comparison

Commenter: Kathryn M. Amirpashaie, PLC

Comment:

A C omparison B etween A ctual 2010 E missions A nd CSAPR A llocated 2014 E missions For BARTE ligible S ources In A labama , M ississippi , N orth C arolina

, And S outh C arolina R eveals That

CSPAR H as R eceived An U nfair A dvantage In EPA’s A nalysis

. EPA’s modeling is flawed in that EPA used data from 2005 - over half a decade ago - to represent “current” visibility conditi ons at Class I areas. However, in order to accurately satisfy the first prong of the 308(e)(3) analysis as to wh ether CSAPR will result in visibility declining in any Class I area, EPA must compare present visibility to projected visibility under CSAPR.

As applicable to this modeling, data from 2005 ca n in no way be considered “current.” Indeed, due to various CAA regulations and programs, as well as source-specific settlement agreements

and other factors such as advan ces in renewable energy, current em issions at a number of sources have significantly declined from their 2005 em issions levels. This is evidenced when one compares emissions data from 2005 with emissions data from 2010, the last full year for which quality-assured actual emissions data is ava ilable. [FN 16]. However; EPA’s “better-thanBART” analysis ignores these emissions reducti ons, which have already been achieved. These omissions operate to give CSAPR an artifici al and unfair advantage over BART in EPA’s analysis.

Thus, instead of using 2005 as the base year for making its visibility comparisons, in order to ensure greater accuracy, EPA should have base d its modeling on the most current data, and compared projected emissions impacts with emissions impacts from 2010. The importance of using actual current data when conducting modeling is evidenced in the fact that emissions from a number of BART-eligible coal-fired EGUs we re significantly lower in 2010 than their budgeted CSAPR allowances. [FN 17]

Ranajit Sahu is an expert who was retained by the Sierra Club to examine in detail the CSAPR

allocations for SO 2 and NOx at BART-eligible coal-fired EGUs in the states of Alabama, Mississippi, North Carolina, and South Carolina. With regard to each BART-eligible source in these four states, the expert compared CSAP R’s 2014 (i.e., 2014 and subsequent (“2014+”)) SO 2Page 114 of 151 and NOx allocations to actual emissions from these units for 2010 and found that emissions from a number of these sources was significan tly lower in 2010 than their 2014+ CSAPR allowances.[FN 18] The results of these various comparisons ar e shown in the spreadsheet, entitled “Table A,” attached hereto as Exhibit 2, which is part of expert Ranajit Sahu’s report on Docket ID No. EPA-HQ-OAR-2011-0729, attached he reto as Exhibit 1. Ranajit Sahu’s report also provides a discussion of these findings , which we incorporate into these comments. See

Exhibit 1.

Because a number of these EGUs are emitting at less than their CSAPR allocations, the issue arises that when CSAPR “kicks in”, these sources will be permitted under their CSAPR budgets to emit pollutants at levels higher than they are currently emitting. This in turn may very likely

result in a decline in visibility at nearby Cla ss I areas. The fact that actual emissions from 2010 for a number of these BART-eligible units ar e lower than the allocat ions under CSAPR also comes into play in their respect to BART. Sp ecifically, it would be unreasonable to set BART emissions higher than actual emissions, therefor e, source-specific BART for these units would likely be set equal to or lower than current, 2010 actual emissions, which are significantly lower than their corresponding CSAPR allocations. Therefore, EPA’s finding that under CSAPR, visibility would not decline in any Class I ar ea is unsubstantiated and flawed. Also, once again, this demonstrate that EPA’s analysis of visi bility improvements under source specific BART versus CSAPR was flawed because EPA greatly underestimated the emission reductions that would be achieved under source sp ecific BART limits. Thus, it ca nnot be said that CSAPR will ensure greater reasonable progress towards the national goal of achievi ng natural visibility conditions in Class I areas by 2064 than BART. 76 Fed. Reg. at 82221.

[FN 16] Data available on EPA’s Clean Air Mark ets Division database(“CAMD”), accessible at http://camddataandmaps.epa.gov/gdm/index.cfm?fu seaction=emissions.wizard&EQW_datasetSelection = [FN 17] Compare data from EPA’s CAMD database, w ith EPA’s budgeted CSAPR allocations, available at http://www.epa.gov/airtransport/techinfo.html. [FN 18] The fact that many of these BART-eligible EGUs were achieving lower emissions rates in 2010 than those allocated for 2014+ under CSAPR is likely due to the fact that these sources ha ve already been required to install pollution control technologies—including BART technologies such as scrubbers and selective catalytic reduction systems—on these EGUs. As a consequence, not only does EPA’s modeling ignore the potential degradation to Class I areas that may result if these EGUs choose to increa se their emission to their allocated levels under CSAPR, the modeling also underestimates the ef fects of the currently installed and operating BART controls at these units. Extending this conclusion to the remaining EGUs in Alab ama, Mississippi, North Carolina, and South Carolina with 2014+ allocations below their actual 2010 emissions, if thos e EGUs were also to install and operate similar BART controls, emissions from those facilities would likely be reduced to a greater degree than achievable by CSAPR. This would impact EPA’s determination made under 40 C.F.R. § 51.308(e)(3)(ii).

EPA Response: This comment mischaracterizes EPA’s use of 2005 emissions. EPA uses 2005 emissions, benchmarked to air quality in 2005 and surrounding years, as its base year for forecast future air quality for the year 2014. It is the year 2014 that serves as the basis for an “apples to apples” comparison of the two Transport Rule altern atives to nationwide BART scenario.

Moreover, EPA questions the relevance of co mparing individual unit 2010 emissions to 2014 allowances. The appropriate comparison is whethe r visibility in Class I areas would be better under the Transport Rule than they would be under a nationwide BART scenario, and not whether in all cases year 2014 emissions for BART units would decrease from 2010 levels.Page 115 of 151 

### 3. Need for Analysis of CSAPR Rule Changes

Commenter: Kathryn M. Amirpashaie, PLC

Comment:

EPA’s M odeling E xcludes From C onsideration The S ubsequent R evisions To CSAPR T hat

I

ncrease E mission A llocations For EGUs In M ississippi And S outh C arolina

. EPA based its “better-than-BART” modeling and analysis on the state budgets prescribed in the final version of CSAPR, which was published on August 8, 2011. See 76 Fed. Reg. at 82227. However, since the publication of its CSAPR “better-than-BART” rule, EPA has weakened the CSAPR rule by providing EGUs in several states with larger pollution allocations. See Final Rule, Revisions to Federal Implementation Plans to Reduce Interstate Transport of Fine Particulate Matter and Ozone

, 77 Fed. Reg. 10324 (Feb. 21, 2012); see also Direct Final Rule, Revisions to Federal Implementation Plans to Reduce Interstate Transport of Fine Particulate Matter and Ozone , 77 Fed. Reg. 10342 (Feb. 21, 2012). Despite these revisions, EPA has failed to undertake any analysis demonstrating that

CSAPR as revised is better than BART. As a result, EPA’s CSAPR “better-than-BART” rule underestimates the potential for degradation to Cl ass I areas under CSAPR, while simultaneously overestimating the overall improvements in visib ility due to CSAPR. 40 C.F.R. § 51.308(e)(3).

South Carolina is one state for which EPA has issued revised SO 2 allocations. Specifically, through its direct final rule, EP A is finalizing an 8,013 ton increas e to South Carolina’s annual

SO 2 budgets. [FN 19] 77 Fed. Reg. 10342, 01345. These re visions are illustrated in Table 5 below. Notably, 6,001 of the 8,013 annual tonnage increase in SO 2 allocations this state comes from increases at BART-eligible sources.Page 116 of 151 20 Compare EPA, Revisions Rule Part II Unit-Level Allocations under the FIPs, available at http://www.epa.gov/airtransport/pdfs/ Revisions%20Rule%20Part%20II%20UnitLevel%20Allocations%20under%20the%20FIPs.pdf

, with EPA, Final CSAPR Unit Level Allocations under the FIP, available at http://www.epa.gov /airtransport/pdfs/UnitLevelAlloc.pdf

In addition, subsequent revisions to CSAPR’s SO2 a nd NOx budgets allow Mississippi EGUs to emit even greater quantities of NOx during the ozone season. [FN 21] See 77 Fed. Reg. 10324, 10328; see also 77 Fed. Reg.10342, 10344. Specifically, EPA has increased Mississippi’s statewide ozone season NOx budget by 2,154 tons per year and is finalizing an a dditional increase of 115 tons per year. [FN 22] See 77 Fed. Reg. 10324, 10328; see also 77 Fed. Reg.10342, 10344.

These revisions are illust rated in Table 6 below.Page 117 of 151 23 Compare EPA, Final Revisions Rule Unit Level Allocations under the FIPs, available at http://www.epa.gov/airtransport/pdfs/Final%20Revisi ons%20Rule%20Unit%20Level%20Allocations%20under%20 the%20FIPs.pdf

, with EPA, Revisions Rule Part II Unit-Level Allocations under the FIPs, available at http://www.epa.gov/airtransport/pdfs/ Revisions%20Rule%20Part%20II%20UnitLevel%20Allocations%20under%20the%20FIPs.pdf

, and with EPA, Final CSAPR Unit Level Allocations under the FIP, available at http://www.epa.gov/airtransp ort/pdfs/UnitLevelAlloc.pdf

.

Despite the significant increases in allocati ons for South Carolina’s SO2 emissions and Mississippi’s ozone season NOx emissions, EPA ne ver modeled how these increased emissions would impact visibility at nearby Class I areas. EP A also did not compare the visibility impacts

under the revised CSAPR allocations to visibilit y conditions under BART for these Class I areas. As a result, EPA has failed to show that visibility will not decline in any Class I area due to the application of CSAPR. 40 C.F.R. § 51.308(e)(3)(i). EPA has also fa iled to show that there will be an overall improvement in visibility with CS APR versus BART in light of these revisions. 40 C.F.R. § 51.308(e)(3)(ii). As a result, there is no basis for concluding that CSAPR will be “better

than BART” under the revise d versions of CSAPR.Page 118 of 151 [FN 19] EPA’s spreadsheets setting forth CSAPR’s Unit Level Allocations contain discrepancies. That is, EPA’s spreadsheet containing “Part II Revised Allocations” shows a difference in allocations of 7,852 tons, whereas EPA’s Direct Final Rule indicates an increase of 8,013 tons. Regardless of this discrepa ncy, these allocations are significantly above what source specific BA RT limits would impose for these units. [FN 21] Mississippi is subject to CSAPR’s requirements during the ozone season only. [FN 22] EPA’s spreadsheets setting forth CSAPR’s Unit Level Allocations contain discrepancies. That is, EPA’s spreadsheet containing “Revised Allocations” show a di fference in allocations of 2,111 tons, whereas EPA’s

Revised Rule states that the state’s allowances were increased by 2,154 tons. Similarly, EPA’s spreadsheet containing “Part II Revised Allocations” shows a difference in allocations of 112, wher eas EPA’s Direct Final Rule indicates an increase of 115 tons. Regardless of this disc repancy, these numbers are significantly above what source specific BART limits would impose for these units.

Commenter: Earthjustice on behalf of other organizations

Comment: Since the publication of its CSAPR “better-than-BART ” rule, EPA has weakened the CSAPR rule by providing several states with larger pollution allocations. EPA has yet to undertake any analysis demonstrating th at CSAPR as revised is better than BART.

Commenter: Earthjustice/Texas

Comment:

EPA Failed to Demonstrate That CSAPR is better than BART because its Modeling and Assumptions are Flawed Second, EPA’s modeling is flawed because it fails to incorporate revisions to CSAPR that significantly increase the emission allowances of Texas EGUs. The modeling thus overestimates the visibility benefits of CSAPR. These flaws in EPA’s modeling arbitrar ily and capriciously tip

both sides of the scale in favor of a determ ination that CSAPR is “better than BART.” See, e.g.

, State Farm , 463 U.S. at 43. In addition, there are a number of other problems with EPA’s modeling more fully discussed in the overarc hing comments on the proposed rule which we incorporate by reference. 15

The flaws in EPA’s modeling are particularly noteworthy and problematic in Texas, because even under this skewed modeling, EPA concludes that CSAPR is just barely “better than BART.” According to EPA, visibility at Big Bend and Guadalupe Mountains on the 20% best days would be the same under CSAPR and BART. Technical Support Document for Demonstration of the Transport Rule as a BART Alternative (“TSD”), at 34, Table 3-5, Docket No. EPA-HQ-OAR-2011-0729TSD. And under EPA’s flawed modeling, on the 20% worst days, visibility at Big Bend and Guadalupe Mount ains would be just 0.1 dv better under CSAPR compared to BART. Id. Consequently, a realistic and suppor table set of modeling assumptions would likely show that CSAPR is not “bet ter than BART,” as required by 40 C.F.R. §51.308(e)(3).

Commenter: Earthjustice/Texas

Comment: EPA Overestimated CSAPR’s Visibility Benefits By Failing To Model Subsequent Revisions to

CSAPR That Increased Texas’s SO 2 and NOx Budgets EPA’s proposed rule also oversta tes CSAPR’s visibility benefits in Texas because it does not

reflect revisions to CSAPR that significantly increase the SO 2 and NOx budgets of Texas EGUs.

See 77 Fed. Reg. 10324, 10327–28 (Feb. 21, 2012). EPA based its modeling and analysis on thePage 119 of 151 SO 2 and NOx budgets allocated to Texas EGUs unde r the final version of CSAPR published on August 8, 2011. See 76 Fed. Reg. at 82227. However, EPA’s subsequent revisions to the SO 2 and NOx budgets under CSAPR would allow Texas EGUs to emit significantly gr eater quantities of

SO 2 and NOx. Specifically, EPA increased Texas’s state-wide SO 2 budget by 50,517 tons per year and its annual NOx budget by 1,375 tons per y ear. EPA, Final Revisions Rule State Budgets and New Unit Set-Asides TSD, at 3 (Feb. 2012) (Exh. 8). This results in a 21% increase in

Texas’s annual SO 2 budget compared to the initial Texas annual SO 2 budget modeled by EPA. Compare id.

, with 76 Fed. Reg. at 48262, 48269. Every BART eligible EGU in Texas received increased unit-specific SO 2 or NOx allocations under the revi sions, as illustrated in Table 2 below.[FN 17]Page 120 of 151 The proposed rule excuses this failure to m odel the CSAPR revisions by stating that the

increases in SO 2 and NOx emissions are insi gnificant because overall SO 2 and NOx emissions

will still decrease and CSAPR woul d still be “better than BART” on average at all Class I areas across the United States. 76 Fed. Reg. at 82227; TSD at 61–64. However, EPA never discussed

how the increased SO 2 and NOx emissions from Texas EGUs would impact visibility at Big Bend, Guadalupe Mountains, and the other Cla ss I areas most impacted by Texas EGUs. EPA also did not compare the visibi lity impacts under the revised CS APR allocations to visibility

conditions under BART for these Class I areas. Therefore, there is no basis for concluding that

CSAPR will be “better than BA RT” under the revised version of CSAPR. EPA’s failure to

model the revised CSAPR allocations are most significant in Texas.

Several states received increased SO 2 and NOx budgets under the revisi ons, but no state received an increase in its emissions budget as large as th e increase Texas received. Texas EGUs will be permitted to emit an additional 50,517 tons of SO 2 annually under the revisions, while no other

state received an increased annual SO 2 budget of greater than 10,000 t ons. Exh. 8 at 3–4. As a result of additional pollutants emitted due to Texas’s disproportionate increase in its SO 2 budget under the revisions, Big Bend, Guadalupe Mountain s, and nearby Class I areas impacted by Texas EGUs will face increased visibility impa irment that was never analyzed by EPA. EPA

cannot determine that CSAPR is better than BART in Texas and warrants a partial FIP until EPA

has considered what CSAPR act ually and currently requires.

In sum, EPA’s “better than BART” determina tion for CSAPR is based on faulty methodology and modeling that tips both sides of the scale in favor of a finding that CSAPR is “better than BART.” EPA overestimates the likely emissions re ductions and visibility benefits of CSAPR forPage 121 of 151 Texas EGUs, while simultaneously underestima ting the emissions reductions and visibility

benefits of BART controls unde r the RHR. Such a skewed “bet ter than BART” analysis is arbitrary and capricious and viol ates the RHR’s required demonstr ation that a BART alternative makes greater reasonable progress toward ach ieving the 2064 natural visibility goal. See State

Farm , 463 U.S. at 43; Util. Air Regulatory Grp. , 471 F.3d at 1340; 40 C.F.R. § 51.308(e)(2) & (e)(3). 19

[ FN 17] Moreover, EPA recently proposed additional increases to Texas’s NOx budget. See 77 Fed. Reg. 10350 (Feb. 21, 2012). These additional proposed increases, which ar e not reflected in Table 2, would increase the state’s annual NOx budget by an additional 2,731 tons and its ozone season NOx budget by 1,142 tons. Exh. 8 at 4. [FN18] Compare EPA, FIP Unit Level Allocations with Final Revisions to CSAPR (Feb. 2012) (Exh. 9), with EPA, Final CSAPR Unit Level Allocations under the FIP (Aug. 2011) (Exh. 10).

EPA Response:

Please see the technical memorandum to Do cket ID No. EPA-HQ- OAR-2011-0729 entitled “Sensitivity Analysis Accounting for Increases in Texas and Georgia Transport Rule State Budgets” that describes additional sensitivity anal ysis that takes into account changes to the Texas and George budget allocations.



### XIV. EPA’s Proposed Limited State Implementation Plan (SIP) Disapprovals and Proposed Federal Implementation Plan (FIP) in Light

of the Stay of CSAPR by the D.C. Circuit

Commenter: Michael Olive, Progress Energy

Comment: In light of the D.C. Circuit Court's stay of CSAPR, the basis for EPA' s SIP disapproval and FIP promulgation - that CAIR has been replaced by CSAPR - is no longer valid. EPA's justification for its proposed action is the anti cipated replacement of CAIR w ith CSAPR. 76 Federal Register at page 82229 ("proposing [this action] because of the termination of CAIR"). Therefore, as long as CAIR remains in place, EPA's proposal lacks a sound legal or rational basis.

Procedurally, Progress Energy recognizes that action on regional haze implementation plans is long overdue. The deadline for agency acti on on regional haze implementation plans was January 20 11 and the SIPs of the three states in which Progress Energy operates have been pending with EPA in final form for 18 months or more, depending on the state. Progress Energy urges EPA to approve regional haze SIPs of those states, including North Carolina, South Carolina, and Florida, that chos e to rely on CAIR to satisfy E GU BART obligations for S02 and NOx. If and when the Court upholds CSAPR, EPA c ould proceed with a "SIP Call" pursuant to Clean Air Act (CAA) Section 110(k)(5) to prepare for CSAPR's implementation. Approving currently valid CAIR-based SIP provisions and is suing a SIP Call when and if necessary would be in keeping with the CAA' s cooperative federalism design.

Commenter: Cathy S. Woollums, MidA merican Energy Holdings Company

Comment:Page 122 of 151 MidAmerican believes EPA should, for the most pa rt, fully approve the SIPs submitted by states that relied on the imposition of either CAIR or CSAPR-related controls as an interim measure to ensure that those states (or EPA for that matter) are not subject to furthe r litigation as a way to force the requirement to act on regional haze on a more arbitrary schedule. It appears that EPA has attempted to address this i ssue in many states through the pub lication of limited approvals in at least 12 states on February 28, 2012; in the case of Iowa, th at proposal is at 77 Fed. Reg. 11974. While MidAmerican will submit comments sepa rately on that proposal, we support such efforts to bring additional certainty to the Iowa regional haze SIP.

Commenter: Luminant

Comment: Because CSAPR has been stayed by the U.S. Court of Appeals for the D.C. Circuit, leaving CAIR in place, EPA cannot at this time go forward with its proposals to 1) revise 40 C.F.R. § 51.308(e)(4) to replace CAIR with CSAPR, 2) disapprove Texas’s regional haze SIP revision that relies on CAIR, and 3) impose a FIP in its place. Instead, EPA shoul d issue a parallel regulation that makes CSAPR a “BART alternative” available to a State if and when CSAPR survives judicial scrutiny and becomes effective in the State. EPA proposes to disappr ove these SIPs because “CAIR and the CAIR FIP requirements . . . will only remain in force to address emissions through the 2011 control period and thus CAIR cannot be relied upon in a SIP as a substitu te for BART or as part of a long-term control strategy.” Id. at 82,221. EPA repeatedly refers to “the fact that the Transport Rule has now replaced CAIR” to support its proposed rulemaking and to “avoid[] the near-term need for additional administrative steps on the part of [the affected] states.” Id. But CSAPR has not replaced CAIR, as EPA expected. CSAPR has been stayed, and CAIR remains in effect. For this reason alone, EPA cannot go forward with the proposed rule as issued.

Commenter: Ken Kramer, Director, Lone Star Chapter, Sierra Club

Comment : At current, CSAPR has been stayed by the D.C. Circuit Court. With the current uncertainty surrounding the implementation of CSAPR, the EPA cannot rely on compliance with this rule to satisfy the requirements of BART. In conclusi on, we feel EPA's proposed alternative to the BART rule is inadequate and will not sufficiently reduce haze from Class I areas. In this case, it is not acceptable to rely on CSAPR to achieve the goals of the Rule for the previously mentioned reasons. We urge the EPA to revise the Rule to ensure that pollution sources of Class I areas are required to make reductions of emissions that refl ect the pollution reducing abilities of the best available pollution controls. Visitors to Big Be nd and Guadalupe Mountains National Parks, and all Texans, deserve the full clean air be nefits of the Regional Haze Rule.

Commenter: Mark R. Vickery, Texas Commission on Environmental Policy

Comment: The EPA should withdraw the proposed rule or re-propose after reso lution of the CSAPR litigation, due to the District of Columbia (D.C.) Circuit Court of Appeals’ grant of a stay of CSAPR. The proposed rule is in supportable given that the CSAP R is not currently in effect. Until the court issues its opinions, it is inappropria te at this time for EPA to issue a FIP to incorporate CSAPR as an alternative to BART, or to call on states to revise their regional haze SIPs if sources cannot comply with the transport rule program s. Once the court issues its opinion, the EPA should provide a ll stakeholders the opportunity to review and comment on the impact of the court’s opinion regarding the le gality of the CSAPR on the proposed rule.Page 123 of 151 In addition, the proposed limited disapprovals are inappropriate since they do not recognize that CAIR was, and remains, legally effective unti l the EPA replaces it as ordered by the D.C. Circuit. The EPA should provide for limited appr ovals for all states that legally relied upon CAIR as an element of their BART analysis fo r the period of time that states were legally

entitled to do so.

Instead, the EPA should provide for limited approvals for all states that relied upon CAIR as an element of their BART analysis. Limited approva ls are necessary to assure both states and sources that their reliance upon th e CAIR was, and remains, valid during the period when CAIR remains legally effective. Although the D.C. Circuit issued an opi nion finding that CAIR did not comply with the Federal Clean Air Act (FCAA), neither states nor sour ces should be penalized for their compliance with the CAIR while it was, a nd still remains effective. In fact, states were legally obligated to comply w ith CAIR. Upon the EPA’s request, the D.C. Circuit agreed to revise its opinion vacating the CA IR, substituting a remand order instead, obligating sources and states to implement CAIR until the EPA fully complies with the remand order. Limited approvals for all states that relied upon CAIR as an element of their BART analysis is appropriate to give full effect to the emissi on reduction requirements and air quality planning obligations that were made pursuant to the re quirements of CAIR. Limited disapprovals unfairly penalize sources and states by failing to acknow ledge states’ compliance with the FCAA air quality planning requirements, CA IR, and the regional haze rule.

Commenter: Kathryn M. Amirpashaie/Sierra Club

Comment: CSAPR is currently the subject of a legal challe nge, and the D.C. Circuit Court of Appeals has stayed implementation of the rule. See Order, EME Homer City Generation, L.P. v. EPA , No. 11- 1302 (D.C. Cir. Dec. 30, 2011). Unless the stay is lifted, EPA cannot rely on CSAPR either to approve State Implementation Plans (“SIPs”) or finalize Federal Implementation Plans (“FIPs”) that fail to apply site-spe cific BART requirements.

According to the RHR, a state or EPA may only implement an emissions trading program as a

BART-alternative if the BART-alternative achie ves greater reasonable progress than BART. Util. Air Regulatory Group v. EPA , 471 F.3d 1333, 1335–36, 1340 (D.C. Cir. 2006); 40 C.F.R. § 51.308(e)(2) & (3). In order to en sure greater reasonable progre ss, the BART-alternative must

include enforceable emission limitations and standa rds that operate to improve visibility across

affected Class I areas without a decline in vi sibility in those areas. 40 C.F.R. § 51.308(e)(2) & (3). Thus, in order to constitute a permissible BART-alternative, an emissions trading program must be valid, in effect, and result in actual emissions reductions.

Here, because the D.C. Circuit has stayed CSAP R, the rule currently has no legal effect and, therefore, is not a binding le gal requirement on states or covered sources. [FN11] CSAPR currently requires no emission re ductions and imposes no emission limits and, thus, can in no

way ensure greater reasona ble progress than BART. See Util. Air Regulatory Group , 471 F.3d at

1340.

Even if CSAPR is ultimately uphe ld, the final layout of the rule is presently unknown. For one, there is a chance that CSAPR may be affirm ed only in part. In addition, EPA itself mayPage 124 of 151 significantly weaken the rule - EPA has already proposed and finalized revisions to CSAPR’s unit-specific allocations which in crease the budgeted NOx and SO 2 allocations for a number of

EGUs in a number of states. See Final Rule, Revisions to Federal Implementation Plans To Reduce Interstate Transport of Fi ne Particulate Matter and Ozone , 77 Fed. Reg. 10324 (February 21, 2012); see also Direct Final Rule, Revisions to Federal Implementation Plans To Reduce Interstate Transport of Fi ne Particulate Matter and Ozone , 77 Fed. Reg. 10342 (February 21, 2012). Because the final requirem ents under the rule are presently unknown, EPA can make no such finding that CSAPR will achieve greater reasonable progress to natural visibility conditions than BART.

In short, neither CSAPR (nor it s predecessor CAIR) can serve as a valid BART-alternative at this

time. In contrast to RHR and its BART re quirements, CSAPR does not guarantee emission reductions, or even prevent emission increases, at plants that cause or co ntribute to visibility impairment at Class I areas. EPA’s reliance on CS APR as a “better than BART” alternative is premature at best. Thus, a final rule that re lies on CSAPR (or CAIR) to exempt Alabama, Mississippi, North Carolina, and South Carolina EGUs from individual BART determinations would violate the RHR since there can be no assurance that CSAPR will achieve greater reasonable progress towards natura l visibility conditions in Cla ss I areas than source-specific BART. [FN12]

[FN11] Even if the D.C. Circuit uphol ds CSAPR, EPA will have likely already issued its proposed regional haze plans for Alabama, Mississippi, North Carolina, and South Carolina. See Consent Decree, Nat’l Parks Conservation

Ass’n v. Jackson , No. 1: 11-cv-01548 (ABJ) (D.D.C. Nov. 9, 2011) (EPA must propose its action on the regional haze plan for these states by Fe bruary 15, 2012, with a final rule by June 15, 2012). [FN12] Instead, EPA must propose and issu e FIPs for these states that require a full, case-by-case BART analysis at every BART-eligible EGU within each state. See, e.g. , 40 C.F.R. § 51.308(e)(1)(ii)(A) & Pt. 51, App. Y (BART determination must be based on a case-by-case analysis of the best available co ntrols for each source); see also Util. Air Regulatory Group , 471 F.3d at 1335–36 (describing the process for determining BART).

Commenter: Earthjustice on behalf of a number of organizations

Comment: EPA cannot rely on CSPAR as a BART alternat ive because CSAPR‘s fu ture is uncertain. CSAPR is the subject of a legal challenge, and on December 30, 2012, the D.C. Circuit Court of Appeals issued an order stayi ng implementation of the rule. See Order, EME Homer City
Generation, L.P. v. EPA , No. 11-1302 (D.C. Cir. Dec. 30, 2011) . EPA cannot finalize a betterthan-BART rule and several implementing FIPs on the strength of a regulation that has been temporarily enjoined and that is therefore not in effect.

To reduce the air pollution that contributes to ha ze, the CAA requires each state to include in its SIP “a requirement ” that certain major stationary sources “s hall procure, install, and operate . . . the best available retrofit technology. ” 18 CAA § 169A(b)(2)(A), 42 U.S.C. § 7491(b)(2)(A); 40 C.F.R. § 51.308(e). As discussed above, substi tuting a trading program for BART requirements is contrary to the statute, but to the extent EPA seeks to rely on an “alternative ” program in place of BART, that program must constitute a “requirement ” as well. So long as CSAPR is stayed, it cannot qualify as a requirement that could apply in place of BART.

Further, all elements of any FIP imposed by EPA must be enforceable. See CAA §§ 110(a)(2)(A), (C), 42 U.S.C. §§ 7410(a)(2)(A), (C) (requiring haze plans to include “enforceable emissionsPage 125 of 151 limitations” and “to provide for the enforcement of” all adopted measures in the plan). Thus, EPA cannot rely on CSAPR while a stay renders the program‘s requirements unenforceable. Given the pressing need to finali ze regional haze plans around the c ountry and to put all states on course to achieving Congress’ visibility goals, which have now languished for decades, it is reckless for EPA to propose reliance on CSAPR in place of BART. Unless the program is upheld in its entirety, EPA will be obliged to revisit the many plans that s eek to rely on CSAPR. Even if CSAPR is upheld, it is unclear how long it will take for ongoing litigation to play out in the Courts, and in the meantime, haze plans in as ma ny as 28 states could be stalled because they rely on CSAPR as a substitute for BART. For this practical reason alone, EPA should abandon

its “better than BART ” approach and associ ated FIP proposals.

Commenter: Earthjustice/Texas

Comment:

CSAPR also cannot serve as a va lid BART-alternative in the Texa s partial FIP because the D.C. Circuit has stayed CSAPR’s implementation. See Order, EME Homer City Generation,L.P. v.

EPA , No. 11-1302 (D.C. Cir. Dec. 30, 2011) (Exh. 5). According to the RHR, states or EPA may only implement an emissions trading program as a BART-alternative if the BARTalternative achieves greater reasonab le progress than BART. Util. Air Regulatory Grp. , 471 F.3d at 1336, 1340; 40 C.F.R. § 51.308(e)(2) & (e)(3). A BART-alt ernative must include enforceable emission

limitations and a demonstration that the alternativ e will result in an average overall improvement in visibility across affected Cla ss I areas without a decline in vi sibility at any Class I area. 40 C.F.R. § 51.308(e)(2)(iii), (vi) & (e)(3). Conse quently, an emissions tr ading program must be valid, in effect, and result in actual emissions reductions in or der to constitute a permissible

BART-alternative.

Here, however, because the D.C. Circuit stayed CSAPR, it currently has no legal effect and is not a binding legal requirement on states and covered sources. 10 CSAPR plainly cannot ensure greater reasonable progress than BART if it is not in effect. See Util. Air Regulatory Grp. , 471 F.3d at 1340. Further, because CSAPR is stayed, the invalidated CAIR remains in effect in Texas and other states covered by CAIR. However, as EPA correctly recognized, regional haze SIPs that rely on the invalidated CAIR as a BART-a lternative, such as Texas’s SIP, must be disapproved. 76 Fed. Reg. at 82221, 82229. For th at reason, EPA proposed disapproval of Texas’s regional haze SIP to the extent it relies on CAIR to reduce SO 2 and NOx emissions from BART-eligible EGUs in the state. See id. at 82221; Texas SIP at 9- 1. The Conservation Groups support that disapproval.

In short, neither CSAPR nor CAIR can serve as a valid BART-alternative at this time. Accordingly, EPA is left with one option: it must propose and issue a FIP for Texas that conducts a full BART analysis at every BART-e ligible EGU in Texas and requires appropriate BART controls at every EGU that is subject to BART. See, e.g. , 40 C.F.R. § 51.308(e)(1)(ii) & Pt. 51, App. Y (BART determination must be ba sed on a case-by-case analysis of the best available controls for each source). A final rule that relies on CSAPR or CAIR to exempt BARTeligible EGUs in Texas from individual BA RT determinations would violate the RHR.

Even if the D.C. Circuit upholds CSAPR, the c ourt is not likely to make a decision until after EPA is scheduled to issue its proposed regional haze plan for Texas on May 15, 2012. See Consent Decree, Nat’l Parks Conservation Ass’n v. Jackson , No. 1: 11-cv-01548 (ABJ), at 5Page 126 of 151 (D.D.C. Nov. 9, 2011) (EPA must propose its acti on on the regional haze plan for Texas by May 15, 2012, with a final rule by November 15, 2012) (E xh. 6). Issuance of Texas’s regional haze plan is far behind schedule, and it is imperativ e that Congress’s mandate to remedy visibility impairment at Class I areas not be further delaye d due to uncertainty rega rding a separate rule. Congress first amended the Clean Air Act in 1977 to require the eliminat ion of human-caused visibility impairment at Class I areas, and EPA issued the RHR in 1999. 42 U.S.C. § 7491; 64 Fed. Reg. at 35714. However, due to a series of delays, EPA has not yet approved the regional haze plan for Texas. See, e.g. , Exh 6 at 2, 5.

Commenter: Kristin A. Henry, Sierra Club

Comment:

Unless the CSAPR Stay is Lifted, EPA Cannot Rely on CSAPR to Approve Indiana’s Regional

Haze FIP EPA cannot rely on CSAPR as a BART alternat ive because CSAPR’s fu ture is uncertain. CSAPR is the subject of a legal challenge, and on December 30, 2012, the D.C. Circuit Court of Appeals issued an order stay ing implementation of the rule . See Order, EME Homer City Generation, L.P. v. EPA, No. 11-1302 (D.C. Cir. Dec. 30, 2011). EPA cannot finalize the state of Indiana implementing FIP on the strength of a regu lation that a court has temporarily enjoined. At the very least, EPA must await a final decisi on as to CSAPR’s legality and enforceability, as relying on a stayed rule could seriously complicate orderly impl ementation of the regional haze program. If EPA finalizes the pr oposed Indiana FIP, which relie s on CSAPR, before the court issues a final decision, and CSAPR is ultimatel y struck down, the Indiana FIP would require revision, further pushing back the already dela yed implementation of the Regional Haze Rule, including application of s ource specific BART at polluting old coal plants in Indiana. In light of the stay, CSAPR is not currently a viable BART alternative.

Indiana cannot rely on an enjoined regulation that may never take effect to provide emissions

reductions that the state must make to “obtain its share of the em ission reductions needed to meet the progress goal[s]” for Class I areas. See 40 C.F.R. § 51.308(d)(3).

Commenter: Utility Air Regulatory Group (UARG)

Comment: EPA is proposing limited disapproval of the regional haze SIPs of those states that have relied on EPA’s CAIR = BART Rule and is proposing FIPs “to replace reliance on the CAIR requirements

in these SIPs with reliance on the Trans port Rule as an alternative to BART.” Id . The proposed limited SIP disapproval and the proposed FI P promulgation are neither necessary nor appropriate. EPA proposes to determine that SIPs th at rely on CAIR do not fu lly satisfy all of the CAA’s regional haze SIP requirements. Id. at 82221, 82223, 82229. EPA’s stated reason for this proposed course of action is the D.C. Circuit’s remand of CAIR and its expected replacement by

CSAPR. As UARG has stated in four other pending EPA rulemaking proceedings concerning proposed EPA actions on regional haze SIPs for four states that are subject to CAIR (and subject to CSAPR, as that rule was promulgated in 2011), CAIR remains in effect, and SIPs that rely on CAIR as a BART alternative are fully c onsistent with EPA’s existing regulations. See 40 C.F.R. § 51.308(e)(4). EPA acknowledges as much in th e proposed CSAPR = BART Rule. 76 Fed. Reg. at 82221 (“These states, fully consistent with the EPA’s regulations at the time , relied on CAIR requirements to satisfy the BART requirement and the requirement for a long-term strategyPage 127 of 151 sufficient to achieve the state-adopted reasonabl e progress goals.”) (emphasis added). Because SIPs that rely on CAIR consistent with § 51.308( e)(4) comply with applicable law, EPA should promptly promulgate full and unconditional approval of those SIPs. The D.C. Circuit’s order staying CSAPR makes clear that, consistent with prior EPA statements to the court, CAIR will remain in place at least until the court’s resoluti on of the legal challenges to CSAPR. Moreover, it is reasonable to expect that, if the court were to vacate CSAPR at the conclusion of its merits review in the litigati on, CAIR likely would continue in e ffect while EPA on remand addressed any necessary revisions to or possible replacemen t of CSAPR in response to the court’s decision. Accordingly, even if there were a valid legal basis for EPA’s proposed limited SIP disapprovals at the time EPA signed its proposed action to partially disapprove CAIR = BART SIPs and promulgate CSAPR = BART FIPs prior to issu ance of the CSAPR stay (and there was not), no such basis even arguably exists at this time.

EPA easily could -- and should -- avoid the problems that w ould stem from its proposed approach to replacing CAIR with CSAPR -- and constructively address a ppropriate state reliance

on the CAIR = BART and CSAPR = BART altern atives -- by modifying its proposed rule. Rather than rewrite 40 C.F.R. § 51.308(e)(4)9 by “replacing the name of CAIR with the name of rather than rewrite 40 C.F.R. § 51.308(e)(4)9 by “replacing the name of CAIR with the name of the Transport Rule,” id . at 82229, EPA should promulgate its proposed new CSAPR = BART regulatory text as a new, added paragraph within 40 C.F.R. § 51.308(e), to be available in parallel with the existing CAIR = BART provision at § 51.308(e)(4), which should be retained

. Using this approach, EPA’s rules would simply pr ovide that a state may rely on either CAIR = BART or CSAPR = BART, or both, where CAIR a nd/or CSAPR, respectively, applies in that state. With such a modification to its rules, EPA would make clear that CAIR = BART remains operative and fully available to states, as it should be, while permitting any state on which EPA imposed CSAPR requirements to adopt -- in lieu of or in addition to CAIR = BART, as the state deems appropriate -- a CSAPR = BART SIP provision, which the state could adopt as a contingency matter to become applicable if and wh en CSAPR becomes effective in that state. In addition, EPA should make clear that it will prom ptly propose and promulgate approval of all SIP provisions that rely on CAIR = BART. Moreover, if CSAPR becomes effective in a state before the state has amended its SIP to incorpor ate the CSAPR = BART provision (if it wishes to do so), then the state must be allowe d a reasonable period of time to do so.

Commenter: American Electric Power (AEP)

Comment: While in support of the proposed rule, AE P would recommend the agency make that determination as another paragr aph in the regulation (40 CFR 51.308(e)(4)), leaving the current determination that CAIR equals BART untouche d. While the agency did not know the CSAPR would be stayed at the time of the proposal, th e agency could not have known that during the stay, CAIR remains in effect and the states that incorporated the use of CA IR for their reasonable progress method should be able to remain in effect . There is no need to disapprove SIPs that rely on CAIR for reasonable progress. By adding to the paragraph instead of substituting into the existing paragraph and once the court challenges ar e complete, the states would have the ability to change from the paragraph endorsing CAIR to the paragraph endorsing CSAPR without having the SIP disapproved. Please consider th e comments by UARG, EEI and our suggestion

above.Page 128 of 151 Commenter: Duke Energy

Comment: Duke Energy believes EPA’s proposed limited SIP disapproval and proposed FIPs is neither necessary nor appropriate, and should not be finalized. Because the CAIR will remain in place at

least until the D.C. Circuit’s re solution of legal challenges to the CSAPR, and possibly longer depending on the outcome of the litigation, SIPs that rely on CAIR as a BART alternative are fully consistent with EPA’s existing regulati ons and should be promptly and unconditionally approved.

To avoid the problems that would be created by EPA’s premature replacement of CAIR = BART with CSAPR = BART, EPA should keep CAIR = BART in place and promulgate a parallel CSAPR = BART regulation. This approach would pr ovide that a state may rely on either CAIR = BART or CSAPR = BART, where CAIR and/or CSAP R, respectively, applies in that state. This approach would make clear that CAIR = BART re mains operative and fully available to states, while permitting any state on which EPA impos ed CSAPR requirements to adopt a CSAPR = BART SIP provision as a conti ngency matter, to become applicable if and when CSAPR

becomes effective in that state.

Additionally, if CSAPR becomes effective in a st ate before the state has amended its SIP to incorporate the CSAPR = BART prov ision (if it wishes to do so), then the state must be allowed a reasonable period of time to do so.

Commenter: Myra C. Reese, South Carolina Department of Health and Environmental Control (DHEC)

Comment: DHEC objects to the EPA moving forward with th is action given the December 30, 2011 stay of CSAPR by the U.S. Court of Appeals for the D.C. Circuit ("Stay") and without a final Regional Haze SIP approval. The Stay directed the EPA to continue to enfo rce the Clean Air Interstate Rule (CAIR), which the same court had remanded to the EPA in December 2008. Since the EPA is continuing to implement CAIR, proposing to strike the regulati ons at 40 C.F .R. § 51.308( e)( 4) (2011) that allow sources to use CAIR to meet the require ments of the Regional Haze program is premature and will lead to regulatory confusion. South Carolina's CAIR sources have made significant commitment to continue to implement and ope rate CAIR controls. As a permitting authority, DHEC notes that the EPA's proposal to replace CAIR with CSPAR before the EME Homer City case is resolved will impair our ability to effectively implement the Regional Haze program in

South Carolina.

The EPA should fulfill its obligations to fully ap prove SIP submittals that have relied on CAIR.

The EPA should also continue the rulemaking process for the technical determination that CSAPR is better than BART. However, the EPA should not remove the CAIR provisions at 40 CFR § 51.308(e)(4) (2011) that effectuate the successful implementation of the Regional Haze program. To do so would be premature and resu lt in a fundamental gap in the regulatory

framework.Page 129 of 151 That the EPA is still considering this proposal ev en after the Stay is fu rther evidence that the EPA is not adequately consideri ng implementation of its rules, and the relationships among these rules. We have seen this problem in the 2010 Su lfur Dioxide (S02) National Ambient Air Quality Standard (NAAQS), the 2010 Nitrogen Di oxide (N02) NAAQS, the 1997 and 2008 Ozone NAAQS, and the many iterations of the Boiler MA CT rule. The EPA's lack of attention to implementing its rules and fosteri ng productive relationships with state regulatory partners is impairing its - and states’ - ability to effectively achieve environmental goals.

Commenter: Michael L. Krancer, Pennsylvania Department of Environmental Protection (DEP)

Comment:

DEP understands EPA's rationale for proposing a limited disapproval of the regional haze SIPs that have been submitted by states, including Penns ylvania, that rely on CAIR requirements to satisfy the BART requirements. We agree that once in place, the FIPs would satisfy the BART requirement, only apply to EOUs in the affected states and only apply to pollutants covered by the Transport Rule, and that they would also be part of satisfying the long-term strategy to achieve the reasonable progress goa ls established by the Class I area states. However, in a separate action on January 26, 2012, EPA propos ed a limited approval of Pennsylvania's Regional Haze SIP revision. EPA found that the Commonwealth's revision to the plan meets Clean Air Act requirements of S ection 110(a)(2) requirements relati ng to visibility protection for the 1997 8-hour ozone and fine particulate matter (PM2.5) standards and 2006 24-hour PM2.5 NAAQS (77 FR 3984). In the January 26th proposal, EPA agrees with the Department's BART analyses and conclusions but does not "address the Commonwealth's reliance on CAIR to meet certain regional haze requirements" (77 FR 3997).

The DEP understands that once a state submits an approvable revision to its regional haze SIP incorporating the requirements of the Transpor t Rule, the EPA must withdraw the FIP for the Regional Haze Program. In the event that the D.C. Circuit Court remands all or a part of the Transport Rule to EPA, given the length of time it will take to finalize a revised Transport Rule, EPA should ensure that for the purposes of the Re gional Haze SIPs, EPA can take final approval action on SIP revisions relying on CAIR for BART for EGUs. States can and should address the issue again in their five-year progress reports and SIP revisions due in 2018.

Commenter: James A. Capp, Georgia Environmental Protection Division

Comment: In proposed language of 52.580(a), EPA is proposi ng a limited disapproval of Georgia’s State Implementation Plan for Regional Haze submitte d to EPA on February 11, 2010 (hereinafter referred to as Georgia’s Regional Haze SIP), to the extent that it does not meet the requirements of 51.308(d)(3) and (e) of the federal Regional Ha ze rule. On page 82229 of the preamble to the proposal, EPA states that it is doing so because “these states, fully consistent with the EPA ‟ s regulations at the time, relied on CAIR requireme nts to satisfy the BART requirement and the requirement for a long-term strategy sufficient to achieve the state-adop ted reasonable progress goals.” In Georgia’s Regional Haze SIP, EPD reli ed on CAIR to satisfy the BART requirement only for the BART exemption modeling for BART-Eligible EGUs and for the BART determination for Georgia Power’s Plant Bowen.Page 130 of 151 EPA’s stated basis for the SIP disa pproval is that CAIR is no longer in effect and that it has been replaced by the Transport Rule. The fact of the matter is, at the close of the comment period on this proposal, due to the latest ruling by the D.C. Circui t Court of Appeals, CAIR is in effect and the Transport Rule is not. EPA should approve the Regional Haze SIPs on the basis of the previously adopted 2005 rulemaking th at CAIR is “bet ter-than-BART”.

EPA admits in the Preamble that states, “... fully consistent with the EPA’s regulations at the time, relied on CAIR requirements to satisfy th e BART requirement and the requirement for a long-term strategy sufficient to achieve the stat e-adopted reasonable progress goals.” In fact, these regulations, notably 40 CFR 51.308(e)(4), are still in place today. EPA should leave 40 CFR 51.308(e)(4) as it is and EPA should fu lly approve our Regional Haze SIP.

Commenter: Paul Bailey, American Coalitio n for Clean Coal Electricity (ACCCE)

Comment: EPA’s proposal to disapprove state RH SIPs that rely on CAIR for EGU BART, and its complementary proposal to impose RH FIPs under which compliance with CSAPR will be deemed to be compliance with EGU BART, now app ears to be premature in light of the Court’s CSAPR stay decision. These EPA proposals were based on the assumption that CAIR would sunset and CSAPR would commence at the beginn ing of this year. That result did not happen, and CAIR remains in place. In fact, given the Co urt’s implicit determination in issuing the stay

that Petitioners have a like lihood of succeeding with their claims on the merits, there is legitimate doubt as to whether CSAPR (at least in its present form) will ever go into effect. Thus, the best course right now is for EPA to ma intain the status quo that compliance with CAIR constitutes compliance with BART for EGUs . EPA should take no action on its current CSAPR=BART proposal, nor should it disapprove RH SIPs that rely on CAIR, nor should it impose FIPs premised on the assumption that CSAPR will ultimately go into effect, at least until there is a Court decision clarifyi ng the legal status of CAIR a nd CSAPR. With a Court decision seeming more likely than not by mid-year, this s hort delay does not result in prejudice to any party or any harm to the environment.

ACCCE is aware that the Court may ultimately uphold CSAPR on the merits and that, even if CSAPR is overturned on the merits; the Cour t may let it go into effect pending remand. And ACCCE is also aware that, given the North Caro lina v. EPA decision, ultimately CAIR will have to be replaced or at least changed on remand, whatever the result of the CSAPR litigation. But those possible outcomes do not change the fact that the current status quo is that CAIR is in

effect and CSAPR is not and that the future of EPA transport rulemaking is uncertain. In fact, if

the Court overturns CSAPR on the merits based on a finding of fundamental flaws, and CSAPR never goes into effect, EPA may need a lengthy period of time to conduct a rulemaking to replace CSAPR, with CAIR likely rema ining in place during this period.

Commenter: Susan Schumann, Florida Electric Power Coordinating Group, Inc. (FCG)

Comment: The substantive basis for EPA's SIP disapproval and FIP promulgation - that CAIR has been replaced by CSAPR - is entirely absent because the D.C. Circuit Court has stayed CSAPR and left CAIR in place. EPA's sole justification fo r its proposed action is th e anticipated replacement

of CAIR with CSAPR. See, e.g., 76 Fed. Reg. at 82229 ("proposing [t his action] because of thePage 131 of 151 termination of CAIR"). Thus, as long as CAIR remains in place, EPA's proposal lacks a legal basis. CAIR will remain in place until the Cour t lifts the stay and EPA determines a path to properly implement CSAPR; as a practical ma tter, since CSAPR is an annual and seasonal program, the earliest possible start da te is likely to be January 1, 2013.

Not only is EPA's proposed action clearly prematur e, but the fact that CAIR remains in place compels EPA to approve of Regional Haze SIPs re lying on CAIR. This is a point EPA admits, explicitly acknowledging that SI P provisions that rely on CAIR to satisfy Regional Haze BART requirements are fully consistent with EPA' s regulations and its "better-than-BART"

determination for CAIR. See 76 Fed. Reg. at 82223; 82229. Similarly, amending 40 CFR § S1.308(e)(ii)(4) to remove CAIR as a "better-th an-BART" alternative would be arbitrary and capricious so long as CAIR remains in effect give n that EPA has continually affirmed its “betterthan-BART" determination for CAIRI In fact, gi ven the factual circumstances and procedural posture, the only reasonable action for EPA to take is to approve pending SI P provisions that rely on CAIR to satisfy BART, and deal w ith CSAPR when and if it is upheld.

Commenter: Joe L. Citta, Jr., Nebraska Public Power District (NPPD)

Comment: The above-referenced EPA action, in summary, c onsiders, among other things, proposing that the trading program in the Cross-State Ai r Pollution Rule ("CSAPR") achieves greater reasonable progress towards the natio nal goal of achieving natural vi sibility conditions in Class 1 areas than source-specific Best Av ailable Retrofit Technology ("BA RT”) in those states covered by the CSAPR. In effect, EPA is proposing that the CSAPR trading program can be substituted for BART in CSAPR states. As EPA is aware, the United States Court of Appeals for the District of Columbia on December 30, 2011, ordered a stay of EPA's "Federal Implementation Plans: Interstate Transport of Fine Particulate Matter and Ozone and Correction of SIP Approvals; Final Rule" 76 Fed. Reg. 48,208 (August 8, 2011). The Court ordered the stay pending a resolution of petitions for review. In conse quence of the stay, no party, in cluding NPPD or the EPA, can predict whether all or portions of CSAPR will ulti mately become effective, cannot predict what revisions will ultimately be made to CSAPR, and cannot predict the date when CSAPR may become effective, if at all. Therefore, NPPD requests that EPA withdraw the above-referenced action until the status of CSAPR is ultimately determined and or becomes effective.

Commenter: Michael P. Halpin, Florida De partment of Environmental Protection

Comment: As you are aware, CSAPR was stayed, and CA IR was reinstituted by the U.S. Court of Appeals for the District of Columbia Circui t on December 30, 2011. Because CAIR is currently in place (and CSAPR is not) and it is unknown how or when the U.S. Court of Appeals will ultimately resolve the judicial challenges to CSAPR and CAIR, it is premature for EPA to replace its "CAIR is better-than-BART" rule with the "CSAPR is better-than-BART" rule. Accordingly, it is inappropriate for EPA to di sapprove Florida's proposed Regional Haze SIP, which relies on CAIR, which has been await i ng EPA's approval since August 2010, and which substantively meets Regional Haze goals.

Notwithstanding CAIR's legal defici encies as a mechanism to contro l the interstate transport of pollutants as required by the Clean Air Act, EP A has previously determined that the pollutionPage 132 of 151 control projects which would be necessary to impleme n t CAIR will adequately address Regional Haze. Since CAIR has been in effect, Florida utilities have expended millions of dollars to significantly reduce emissions of both S02 and NOx (i.e., the key compounds which contribute to the formation of fine particulate and impair visibility). Specifically, NOx emissions have decreased by approximately 64% or over 65,000 tons during the ozone season, and S02 emissions have decreased by 60% or over 280,000 tons annually

. These very real reductions

have e xceeded our projections in the proposed Regiona l Haze SIP and have resulted in Florida's

visibili t y improving at a rate consiste nt with the nominal strai ght-line glide slope toward t he 2064 goal. As several additional CA IR-related pollution control projects are completed, the State will see further reductions. For example, new selective catalytic re d uct i on systems at Gulf Power

Crist Unit 6 and Orlando Utilities Commission Stanton Unit 1 are on pace for an orderly construction and startup, and extremely low emitting, natural gas fueled combined cycle generating units are under construction in place of residual oil-fueled units at the Florida Power & Light Cape Canave ral and Riviera Plan t s, a n d are soon to be starte d at Port Everglades.

Since these costly projects were undertaken to implement CAIR-related pollution control, since they are currently in place in Fl orida, and since the re sults demonstrate that they have been and continue to be a more-than-adequate mechanism f or achieving reas onable progress towa r ds restoring the natural visibility conditions in Florida's Class I areas, Florida requests that you approve its current proposed Regional Haze SIP. T o the extent that the resolution of the current legal challenge to CSAPR necessitates a future SI P call, Florida would then work cooperatively

with EPA-as contem p lated under the Clean Air Act-to revi se its approved Regional Haze SIP on

a reasonable schedule

.

Commenter: Susan Schumann, Florida Electric Power Coordinating Group, Inc. (FCG)

Comment: Rather than codifying the CSAPR "better-than-B ART" determination by re placing all references to CAIR in 40 CFR § 51.308(e)(ii)(4) with refe rences to CSAPR, EPA should simply codify

both its CAIR and CSAPR "better- than-BART" determinations side-by-side. This would ensure necessary flexibility in light of the uncertainty surrounding CAIR and CSAPR's status due to the stay and pending judici al review of CSAPR.

Commenter: Louis P. Pocalujka, Consumers Energy

Comment: Currently, CSAPR is stayed pending the D.C. Ci rcuit’s resolution of multiple petitions for review of the rule. As a result, if and when CSAPR will take effect remains an open question. Consequently, Consumers Energy believes that EPA should proceed with approval regional haze SIPs, like the State of Michigan ’s, that rely upon CAIR. Even if there was a valid basis for EPA’s proposed limited SIP disapproval at the time EPA signed its proposed action on the December 23, 2011, no such basis exists at this point in time. CAIR remains in effect. Therefore, EPA should act to remove any ambiguity and a ffirm that EPA’s CAIR=BART rule remains a valid and legally effective part of its BART regu lations and that states may continue to rely on that provision. For states in the CAIR program, consistent with EPA’s regulations currently in effect, EPA should promulgate a full and unconditional approv al of the states’ SIPs.Page 133 of 151 In order to account for any change in the curr ent legal status of CAIR or CSAPR, EPA should consider finalizing its determination that CS APR=BART, while leaving current regulations regarding the CAIR=BART determin ation in place. This approach could obviate the need for additional rulemaking in the event CSAPR is upheld and/or the current stay is lifted.

Commenter: John D. Kinsman, Edison Electric Institute (EEI)

Comment: EEI also believes that EPA should approve regi onal haze SIPs that rely upon CAIR. Even if

there was a valid basis for EPA ‟ s proposed limited SIP disapproval at the time EPA signed its proposed action on the December 23, 2011, no such basi s exists at this time. Moreover, nothing has occurred which would prevent EPA from main taining its previous pos ition that the emission reductions required by CAIR are sufficient to sa tisfy BART. Under a previous decision of the D.C. Circuit Court of Appeals, CAIR remains in effect. Therefore, EP A should act to remove any ambiguity and affirm that EPA ‟ s CAIR=BART rule remains a valid and legally effective part of its BART regulations and that states may continue to rely on that provision. For states in the CAIR program consistent with currently effective EPA ‟ s regulations – including 40 C.F.R. § 51.308(e)(4) – EPA should promulgate a full and unconditional approval of the state SIP.

EEI believes that EPA needs to clarify its regul atory policies on transpor t programs that will satisfy BART obligations during the time that CSAPR remains under review by the D.C. Circuit Court of Appeals and ther eafter. First, as per above, CAIR =BART regulations must remain in effect during the entire time th at CAIR is legally effective. There is no reason that EPA should take any action through regulation or in settlement of litigation that would act to jeopardize this determination. Second, to account for any change in the current legal status of CAIR or CSAPR,

EPA should finalize its determination that CS APR=BART while leaving current regulations regarding the CAIR=BART determin ation in place. This approach could obviate the need for additional rulemaking in the event CSAPR is upheld and/or the current stay is lifted. Finally, EPA should consider other regulatory alternativ es which would ensure that there is a smooth

transition between CAIR=BART re gulatory provisions and any follow-on transport rule that incorporates a similar determina tion. In all cases, EPA should ensure that states within the CAIR and CSAPR regions are able to rely on these tr ansport programs to addr ess BART obligations.

Commenter: Luminant:

Comment: Texas submitted to EPA in February 2009 a regional haze SIP using CAIR as an alternative to BART requirements. CAIR is the interstate rule that is currently in effect, and EPA itself has determined

that CAIR is better than BART. See 70 Fed. Reg. at 39,136–37. That determination was upheld by the D.C. Circuit. See Util. Air Regulatory Grp. , 471 F.3d at 1340– 41. Therefore, EPA should approve Texas’s regional haze SIP, given that EP A provides no reason in the proposed rule that would justify disapproval besi des the fact that Texas’s re vision is based on CAIR. CAIR constituted EPA’s regulations “at the time,” a nd CAIR remains in pl ace. Because Texas’s submission undisputedly meets the current requirem ents of the Clean Air Act, EPA must approve it. 42 U.S.C. § 7410(k) (l). EPA should approve Texas’s submission now and not simply wait for the D.C. Circuit’s final decision on the lega lity of CSAPR. Texas’s SIP revision has been pending before EPA for three years, and thus EP A’s failure to act is a violation of the time constraints imposed by the statute. 42 U.S.C. § 7410(k). Further, even under the currentPage 134 of 151 expedited briefing schedule and argument, CSAPR’s legality will likely not be finally decided in 2012 and may not be finally decided for years. Furt her, should the D.C. Ci rcuit vacate or remand CSAPR on any grounds, it is a reasonable probability that the Court would leave CAIR in place to maintain its environmental benefits, as it did previously. Given the unce rtain future of CSAPR and the fact that CAIR remains in place, EPA should approve Texas’s regional haze SIP, which is based on CAIR requirements. CAIR, as EPA ha s previously determined, is undisputedly better

than BART and is available as a BART alternative under EPA’s current regulations, and EPA has identified no shortcomings in Texas’s SIP re vision that would preven t approval. EPA should approve Texas’s regional haze SIP as submitted to EPA.

If, at some point in the future, CSAPR becomes eff ective as to Texas, Texas can revise its SIP to utilize CSAPR as a BART alternative. Or, shoul d CAIR be discontinued at some point in the future and not replaced with another regional tr ading program equivalent to BART, Texas would then conduct its BART analysis for EGUs in th e State, perform updated modeling to determine which, if any, EGUs in the State “cause or contribut e to any impairment of visibility” in a Class I area, and propose a revision to its SIP to addre ss any such impairment. Thus, under any scenario, a FIP is premature and inappropriate at this time.

Commenter: Utility Air Regulatory Group (UARG)

Comment: UARG does not believe that EPA’s pr oposed decision to issue FIPs to effect that policy choice is necessary or warranted, and UARG continues to oppose issuance of limited disapprovals of SIPs

that have relied on CAIR as a BA RT alternative, for the reasons st ated in its previous comments on proposed EPA actions with respect to implem entation plans for individual states. (Comments of the Utility Air Regulatory Group on the U.S. Environmental Protection Agency’s Proposed Rule: Approval and Promulgation of Air Qualit y Implementation Plans; State of Tennessee; Regional Haze State Implementation Plan, EPA Docket ID No. EPA-R04- OAR-2009-0786- 0022 (July 11, 2011); Comments of the Utility Ai r Regulatory Group on the U.S. Environmental Protection Agency’s Proposed Rule: Approval an d Promulgation of Air Quality Implementation Plans, West Virginia; Regional Haze State Impl ementation Plan, EPA Docket ID No. EPA-R03- OAR-2011-0092-0040 (Aug. 12, 2011); Comments of the Utility Air Regulatory Group on EPA’s Proposed Approval and Promulgation of Air Quality Implementation Plans; Commonwealth of Kentucky; Regional Haze Stat e Implementation Plan, EPA Docket ID No. EPA-R04-OAR-2009-0783-0022 (Jan. 17, 2012); Comments of the Utility Air Regulatory Group on EPA’s Proposed Approval and Promulgation of Air Quality Implementation Plans; Commonwealth of Virginia; Regional Haze Stat e Implementation Plan, EPA Docket ID No.

EPA–R03–OAR–2011–0091-0016 and EPA–R0 3–OAR–2011–0584-0028 (Feb. 24, 2012).)

EPA Response: Please see section II.B.2 of the preamble to th e final rule for EPA’s response to comments concerning the stay of the Transport Rule.



### XV. States Should be given the opportunity to Remedy CAIR

­ Dependent

SIPsPage 135 of 151 Commenter: Luminant

Comment: In any case, even if CSAPR becomes effective as to Texas at some point in the future, Texas should be given the opportunity to revise its SIP to utilize CSAP R as a BART alternative. There is simply no reason for EPA to delay its acti on on Texas’s regional haze SIP submission any longer—it should and must approve the submission immediately.

Commenter: Dale Hurst, Chief, Alabama De partment of Environmental Management

Comment: On Friday, December 30, 2011, EPA proposed to i ssue limited state implementation plan (SIP) disapprovals and Federal Implementation Pl ans (FIPs) concerning provisions governing alternatives to source-specific best availabl e retrofit technology (BAR T) as they apply to Regional Haze SIPs (76 FR 82219). EPA proposes to issue these FIPs to address what they believe are deficiencies in all of the CAIR-dep endent regional haze SIPs. The FIP is intended to provide a mechanism for EPA to replace reliance on the CAIR requirements in these SIPs with

reliance on the Cross-State Air Polluti on Rule as an alternative to BART.

We do not agree with this approach because EPA continues to erode states ’ abilities to rectify

deficiencies in SIPs. States should be given every opportunity provided by the Act to make

revisions to correct SIP deficien cies before EPA acts by imposing a FIP. This approach would be

consistent with the clear intent of the Clean Air Act.

EPA Response: Please see section VI.C of the preamble for a discussion of EPA’s legal requirements with respect to FIPs and the EPA’s final determination on specific state FIPs.

Commenter: James A. Capp, Georgia Environmental Protection Division

Comment: EPA Must Give States a Fair Opportunity to do a SIP before it Imposes a FIP Under section 110(c)(1), FIPs may be proposed an d promulgated only when a State has failed to do its job, either by not making a required SIP submission at all, or by making a required submission that EPA disapproves. In this situ ation EPA has simultaneously proposed a revision to 40 CFR 51.308(e)(4) and a SIP di sapproval that is based on the not yet final revision to 40 CFR 51.308(e)(4). Therefore, it was impossible fo r states to submit a Regional Haze SIP based on the version of 40 CFR 51.308(e)(4) that EPA is using to make its disapproval determination because that version did not, and still does not, exist. EPA has failed to give states a fair opportunity to do a SIP before it took action to impose a FIP as required by the Clean Air Act. As such, EPA must withdraw this proposal and give states a fair opportunity to do a SIP.

EPA Response: Please see section VI.C of the preamble for a discussion of EPA’s legal requirements with respect to FIPs and the EPA’s final determination on specific state FIPs.Page 136 of 151 

### XVI. Comments Specific to Certain States

1. Florida

Commenter: National Parks Conservat ion Association and Earthjustice

Comment: EPA’s proposed partial FIP for Fl orida violates the requirements of the Clean Air Act and the

RHR for several reasons. As de tailed in Earthjustice’s commen t letter on the overarching legal and policy flaws of EPA’s proposed rule, the “b etter than BART” rule as applied to all 28 CSAPR states, including Florida, is inconsistent with the Clean Air Act. We incorporate that

letter in full here. This letter specifically explains why EPA’s proposed partial FIP for Florida cannot legitimately rely on CSAPR to exem pt Florida EGUs from the RHR’s BART requirements. As explained in Earthjustice’s co mments on the national rule as well as similar comments on other states, [FN 1] EPA cannot re ly on CSAPR because the D.C. Circuit has indefinitely stayed the rule. Furthermore, EPA has not complied with the Clean Air Act’s statutory requirements for a BART exemption, ha s failed to make a stat e-by-state demonstration that CSAPR is better than BART, and has incl uded fatal methodological flaws in its proposed determination. [FN 2] Additionally, EPA’s determin ation fails to account for the geographic and temporal uncertainties in emissions reductions under CSAPR – uncertainties inherent in a capand-trade program. Moreover, as discussed below, the application of CSAPR as a substitute for source specific BART is uniquely and particularly problematic in Florida, and four other states [FN 3] for which EPA proposes to exempt sources from BART NOx requirements, because NOx emissions are only covered by CSAPR during the ozone season – less than half the year.

In addition, even if EPA eventually imple ments CSAPR, neither EPA nor Florida has

demonstrated that CSAPR is better than BART as applied to Florida. To the contrary, the existing record demonstrates that CSAPR w ill (1) allow for greater NOx emissions than appropriate [FN 4] BART limits at Florida EGUs ; (2) fail to require NOx emission reductions year round and (3) not achieve greater reasonable progress than would sour ce specific BART at subject EGUs in the state of Florida. These s hortcomings, taken together or individually are a result of arbitrary and caprici ous decision-making which impede the Agency’s ability to finalize the proposed partial FIP for Florida.

[FN 1] See Earthjustice Comments on the Proposed Approval of the Minn esota State Implementation Plan for Regional Haze, filed February 24, 2012; Earthjustice’s Comments on Proposed Partial Regional Haze FIP for Texas, filed February 28, 2012; and similar co mments on other affected states. [FN 2] The proposed “CSAPR is better than BART” determin ation suffers from additional legal infirmities both as a national rule and as applied to Florida for at least five important reasons. First, EPA has not accounted for the differences in averaging time under BART (30-day averaging times), CSAPR (five-month averaging times), and in measuring visibility impacts (one-hour averaging time) and therefore cannot properly compare or demonstrate emissions reductions under CSAPR would be better than BART. Second, EPA's modeling assumed nitrate levels

that are often lower than real-world conditions, which calls into question EPA's modeling. Third, in some instances, EPA relied on a single monitor to asse ss visibility conditions in multiple Cla ss I areas. Relying on a single monitor for multiple Class I areas is unlikely to accurately descri be visibility across the Class I areas and therefore makes EPA's conclusions about visibility impacts suspect. Fourth, EP A also uses a simple arithmetic mean to conclude that visibility improvements will be greater than CSAPR th an BART. EPA's methodology calls into question its conclusion given that relying on an arithmetic mean is likely to overstate progress by heavily waiting outlier results. Lastly, EPA's proposed better than BART determination relies on a 2014 base case that does not account for permanent emissions reductions at non-BART eligible sources, which resulted in giving CSAPR credit for thosePage 137 of 151 emissions reductions and placing BART at an arbitrary disadvantage in the comparison. See Comments on National Better than BART proposed rule, filed February 28, 2012. [FN 3] Oklahoma, Louisiana, Mississippi, and Arkansas. [FN 4] We have not performed source-specific BART determinations for each source. Throughout this text, where we use the terms “appropriate” or “adequate” to describe BA RT limit, they indicate our best estimation of the likely

outcome of a BART determination

.

EPA Response: Please see section V.C of the preamble for a disc ussion of EPA’s final determination a FIP for

Florida.



### 2. Georgia

Commenter: National Parks Conservation As sociation on behalf of a number of organizations

Comment: In this rule, EPA proposes a limited disapprova l of Georgia’s State Implementation Plan (SIP) because it relied on the requirements of the Clean Air Interstate Ru le (CAIR) to reduce sulfur dioxide (SO2) and nitrogen oxide (NOx) emissi ons from electric generating units (EGUs). 76 Fed. Reg. at 82219, 82229. To address that deficien cy, EPA proposes a partial FIP that will replace reliance on CAIR with reliance on the Cr oss-State Air Pollution Rule (CSAPR) for the

emissions of SO2 and NOx. Id. at 82229–30, 82232 (proposed amendment to regulation). The effect of the proposed partial FIP is to exempt all Georgia EGUs from the Regional Haze Rule’s (RHR’s) requirements for case-by-case, source-s pecific analyses and installation and operation of Best Available Retrofit Technology (BART) to reduce SO2 and NOx and achieve the RHR’s visibility mandates.

The partial FIP is premised on EPA’s proposed finding that CSAPR wo uld be “better than BART” at making reasonable pr ogress toward achieving the RH R’s goal of eliminating humancaused visibility impairment at Class I areas by 2064. Id. at 82221; see also 40 C.F.R. § 51.308(e)(3) (criteria for determin ing if an alternative measur e is “better than BART”).

EPA’s proposed partial FIP for Ge orgia violates the requirements of the Clean Air Act and the

RHR for several reasons. As de tailed in Earthjustice’s commen t letter on the overarching legal and policy flaws of EPA’s proposed rule, the “b etter than BART” rule as applied to all 28 CSAPR states, including Georgia, is inconsistent with the Clean Air Act. We incorporate that

letter in full here. This letter specifically explains why EPA’s proposed partial FIP for Georgia cannot legitimately rely on CSAPR to exem pt Georgia EGUs from the RHR’s BART requirements. As explained in Earthjustice’s co mments on the national rule as well as similar comments on other states, [FN 1] EPA cannot re ly on CSAPR because the D.C. Circuit has indefinitely stayed the rule. Furthermore, EPA has not complied with the Clean Air Act’s statutory requirements for a BART exemption, ha s failed to make a stat e-by-state demonstration that CSAPR is better than BART, and has incl uded fatal methodological flaws in its proposed determination. [FN 2] Additionally, EPA’s determin ation fails to account for the geographic and temporal uncertainties in emissions reductions under CSAPR – uncertainties inherent in a capand-trade program.Page 138 of 151 In addition, even if EPA eventually imple ments CSAPR, neither EPA nor Georgia has

demonstrated that CSAPR is better than BART as applied to Georgia. To the contrary, the existing record demonstrates that CSAPR will (1 ) allow for greater SO2 and NOx emissions than appropriate [FN 3] BART limits at Georgia EGUs subject to BART and (2) not achieve greater reasonable progress than would sour ce specific BART at subject E GUs in the state of Georgia. These shortcomings, taken together or individu ally are a result of arbitrary and capricious decision-making which impede the Agency’s abil ity to finalize the proposed partial FIP for Georgia.

[FN 1] See Earthjustice Comments on the Proposed Approval of the Minn esota State Implementation Plan for Regional Haze, filed February 24, 2012; Earthjustice’s Comments on Proposed Partial Regional Haze FIP for Texas, filed February 28, 2012; and similar co mments on other affected states. [FN 2] The proposed “CSAPR is better than BART” determin ation suffers from additional legal infirmities both as a national rule and as applied to Georgia for at least five important reasons. First, EPA has not accounted for the differences in averaging time under BART (30-day averaging times), CSAPR (five-month averaging times), and in measuring visibility impacts (one-hour averaging time) and therefore cannot properly compare or demonstrate emissions reductions under CSAPR would be better than BART. Second, EPA's modeling assumed nitrate levels

that are often lower than real-world conditions, which calls into question EPA's modeling. Third, in some instances, EPA relied on a single monitor to asse ss visibility conditions in multiple Cla ss I areas. Relying on a single monitor for multiple Class I areas is unlikely to accurately descri be visibility across the Class I areas and therefore makes EPA's conclusions about visibility impacts suspect. Fourth, EP A also uses a simple arithmetic mean to conclude that visibility improvements will be greater than CSAPR th an BART. EPA's methodology calls into question its conclusion given that relying on an arithmetic mean is likely to overstate progress by heavily waiting outlier results. Lastly, EPA's proposed better than BART determination relies on a 2014 base case that does not account for permanent emissions reductions at non-BART eligible sources, which resulted in giving CSAPR credit for those emissions reductions and placing BART at an arbitrary disadvantage in the comparison. See Comments on National Better than BART proposed rule, filed February 28, 2012. [FN 3] We have not performed source-specific BART determinations for each source. Throughout this text, where we use the terms “appropriate” or “adequate” to describe BA RT limit, they indicate our best estimation of the likely

outcome of a BART determination.

Commenter: National Parks Conservation As sociation on behalf of a number of organizations

Comment: Georgia’s submittal asserts that it will not meet the uniform rate of progress at two of its three Class I areas (Okefenokee and Wolf Island, which share the same monitor) .8 If a state will not meet the goal of restoring natura l visibility conditions by 2064, the state must demonstrate to EPA that it considered regulating all sources of visibility impairment, 40 C.F.R. § 51.308 (d)(3)(iv)-(v), and that despite application of BART and other controls, it is unreasonable to meet

the deadline of clean air in parks and wilderness by 2064. I d. § 51.308(d)(ii) (“[I]f the State establishes a reasonable progress goal that provides for a slower rate of improvement in visibility

than the rate that would be needed to attain natural condi tions by 2064 . . . the State must demonstrate . . . that the rate of progress for th e implementation plan to attain natural conditions by 2064 is not reasonable.”).

Georgia admits that it will not achieve the unifor m rate of progress and will not attain natural visibility by 2064. It is not enough to consider options that would provi de greater reasonable progress then the state's chosen reasonable progress goal; the stat e must consider the reductions that would be necessary to achieve the uniform rate of progress, and demonstrate why such reductions are unreasonable. In its proposed haze SIP, Georgia did not “demonstrate, based onPage 139 of 151 the factors in paragraph (d)(1 )(i)(A) of this section, that the rate of progress for the implementation plan to attain natural conditions by 2064 is no t reasonable.” Requiring BART would provide reasonable reductions that would help meet the unifo rm rate of progress, but this option has not been evaluated.

Accordingly, Georgia's SIP submittal does not comply with all applicable regional haze requirements. Further, the absence of an evalua tion of BART controls an d limits as a means of meeting the uniform rate of progress – rather th an lesser reasonable prog ress goals – illustrates the reason why the required l ong-term strategy and EPA’s proposed determination for an

alternative to BART should be evaluated in the same arena, as discussed below, and not decoupled. [FN 9]

Thus, in the absence of a demonstration that CSAPR will make greater reasonable progress than BART, CSAPR fails the regulatory test required for an alterna tive BART program to exempt sources from source specific BART limits.

[FN 9] See Earthjustice’s Comments on Proposed Partial Regional Haze FIP for Texas, filed February 28, 2012.

EPA Response: Please see section II.4 of the preamble to the final rule for the EPA’s response to comments about the relationship between a better-than- BART determination and reasonable progress.

Commenter: James A. Capp, Georgia Environmental Protection Division

Comment: EPA’s proposed action regarding Georgia falsely st ates that Georgia relied upon CAIR to satisfy the BART requirements for NOx and SO2 for all sour ces statewide. This is not true. In Georgia’s Regional Haze SIP, EPD relied on CAIR to satis fy the BART requirement only for the BART exemption modeling for BART-Eligible EGUs a nd for the BART determination for Georgia Power’s Plant Bowen. Therefore, EPA proposes th at the language of 52.580(a) be revised to reflect the specific instances in which Georgi a relied on CAIR to satisfy the regional haze requirements as follows:

(a) The requirements of section 169A of the Clean Air Act are not met because the plan does not include approvable measures for meeting the requirements of 40 CFR 51.308 (e) for BART eligible EGUs.

EPA Response: Please see the final regulato ry text in the final ru le for clarification.



### 3. Texas

Commenter: Earthjustice/Texas

Comment: EPA cannot issue a legally defensible partial re gional haze FIP for Texas that relies on CSAPR to exempt all Texas power plants from the RHR’s BART requirements. A strong regional haze plan for Texas that complies with the visi bility protection regu lations - including BART limits at all EGUs subject to BART - is cr itically important to improve visibility at BigPage 140 of 151 Bend and Guadalupe Mountains National Parks, and other Class I areas in nearby states. Moreover, a strong regional haze plan will protec t public health and benefit tourism and local economies by ensuring that people from around the wo rld will continue to travel to Texas to explore and enjoy the state’s majestic nationa l parks and the region’s treasured landscapes.

Commenter: Mass Comment Campaign Sponsored by Texas Sierra Club (There were 258

individual commenters who submitted essent ially the same comment as follows.)

Comment: I urge the EPA to strengthen its proposed ru le for Texas and regional haze, Docket # EPA-HQOAR-2011-0729. Under EPA's proposed rule, Texas would rely only on the Cross-State Air Pollution Rule, which focuses on statewide pollution reductions, to reduce haze in national parks. The Cross State Air Pollution Rule was designed fo r a different purpose, and has not yet been put into effect due to litigation. Most importantly, under that rule, the old, dirty Texas plants that currently contribute to haze in beloved areas like Big Bend and the Guadalupe Mountains may choose not to install pollution co ntrols, instead opting to buy emissi on allowances from states as far away as Minnesota and South Carolina. To address haze, EPA should require Texas to consider each plant on a case-by-case basis and ma ke sure our parks and health are protected.

These distant emission reductions in other states, rather than Texa s, may not protect Big Bend or Guadalupe Mountains as intended by the Rule. Moreover, the same air pollution from coal-fired power plants that causes haze also harms public h ealth, so the proposed rule may not clean up the air that Texans breathe as the Regional Haze Rule would. Visitors to Big Bend and Guadalupe Mountains, and all Texans, deserve the full cl ean air benefits of the Regional Haze Rule.

Commenter: Mass Comment Campaign Sponso red by National Parks Conservation Association (There were 835 individual comment ers who submitted essentially the same comment as follows.)

Comment: I urge you to require Texas's oldest and dirtiest power plants to si gnificantly clean up to clear the haze in Big Bend and Guadalupe Mountains Na tional Parks. Please abandon your proposal to exempt these polluters from widely available, cost effective pollution controls. As a national park visitor and advocate for th e parks, I value these national treasures. Unfortunately, EPA has proposed a Texas haze plan that wi ll not protect the places that I care deeply about. The current haze plan relies on a trading program which coul d allow Texas polluters to buy emission credits from sources as far away as Minnesota and avoid installing pollution controls at their facility. To effectively address haze, EPA mu st require the specific Texas pow er plants damaging park air quality to reduce their emissions, not buy a pass to continue damaging the air in my region. Reduced views and compromised air quality are problems that Congress sought to fix by setting aside these lands for special air quality protect ion. And we need to fix these problems. EPA cannot let Texas power plants es cape pollution controls ; EPA must require an adequate Texas haze plan that would help clean up the air in our national parks, and throughout the region, for present and future generations.

Commenter: Mass Comment Campaign spon sored by CREDO Action (9,104 CREDO Action Members in Texas)

Comment:Page 141 of 151 I urge the EPA to strengthen its proposal for Texas regional haze, Docket #

EPA

‐ HQ

‐ OAR

‐ 2011

‐ 0729. As a Texan, I care about our iconic open spaces like Big Bend and the Guadalupe Mountains and want them protect ed from haze pollution, which both obscures the spectacular views and also makes the air unsafe to breathe. Please strengthen your proposal and do more to hold Texas' major polluters acc ountable and improve air quality in Texas.

EPA Response:

Please see section VI.C of the preamble to the final rule for EPA’s determination concerning a

FIP for Texas.

Commenter: Mark R. Vickery, Texas Co mmission on Environmental Quality

Comment:

In the initial review of the Technical Support Document (TSD ) for Demonstration of the Transport Rule as a BART Alternative , the conclusion that CSAPR is better than BART appears

reasonable based on the overall an alysis presented. In general, the TCEQ technical staff found

the conclusion that CSAPR is better than BART appears to be reasonable; however, due to the large number of the supporting documents, more time was need ed for a thorough review. One instance of potential confusion appears on page 52 of the TSD where the EPA evaluated fewer sources than Texas evaluated for BART. The TCEQ is not sure why the lists are different, but might conjecture that the state has better information, or made a wider evaluation of sources,

than the EPA.

EPA Response: EPA acknowledges TCEQ’s conclusion that CSAPR is better than BART is reasonable. With respect to the specific BART sources that EPA evaluated, we have reviewed the Texas SIP to ensure consistency with the sources that Texas has evaluated as BART-eligible. We compared our list of Texas BART-eligible units (page 52 of the TSD) with Appendix 9-13 (BART-Eligible List) of the Texas SIP ( http://m.tceq.texas.gov/assets/public/im plementation/air/sip/haze/Appendix9_13.pdf , accessed April 24, 2012). From this list we identified th e company name and “account number” for each EGU that was identified as being subject to CA IR. This list was then cross-referenced with information contained in the “BART Modeling Pa rameters” file to obtain more information

about each EGU ( http://www.tceq.texas.gov/assets/public/implem entation/air/sip/bart/B ARTModelingParameters. zip , accessed April 25, 2012). The data listing the modeling parameters was filtered by Standard

Classification Code to se lect only EGUs firing any type of co al. This filter significantly reduced the number of EGUs considered BART-eligible . Finally, the ORIS identification number for each coal-fired Texas facility was matched to the ORIS numbers for the units we modeled for Texas. We found only one discre pancy and that was that we modeled WA Parish Unit 7 and Texas did not list this unit as BART-eligible in the modeling file. In conclusion, it is apparent that the more extensive list of BART-eligibl e EGUs maintained by TCEQ includes EGUs that

are fired with fuel other than coal. In the “b etter-than-BART” analysis EPA only modeled coalfired BART-eligible units (because there are no presumptive limits for fuels other than coal) and the Transport Rule applies primarily to such units.

Commenter: Mark R. Vickery, Texas Co mmission on Environmental QualityPage 142 of 151 Comment: The proposed rule should identify if and how st ate air quality planning ob ligations are impacted

as a result of the states’ inclusion in CSAPR if the basis for the state’s inclusion in CSAPR is

different than the basis for the states’ inclusion in CAIR. Texas was previously included only in

the CAIR annual SO 2 and nitrogen dioxide (NO X ) trading program (for si gnificant contribution to nonattainment from fine particulate matter, or PM 2.5 ), but was included in the CSAPR for annual

NO X , ozone-season NO X , and the SO 2 Group 2 trading programs (for significant contribution to

nonattainment or interference w ith maintenance for the 1997 eight-hour ozone National Ambient Air Quality Standard (NAAQS)) and the 1997 annual PM 2.5 NAAQS. It is unclear how this change was addressed in EPA’s analysis for th e proposed rule. One of the documents in the rulemaking docket – entitled States with a Change in Status from CAIR to Initial CSAPR, or from CAIR to CSAPR and Supplemental Proposal for Six States does not identify Texas as one of the states that was treated differently between CAIR and CSAPR, so it is unclear how this change affects state air quality planning oblig ations under the Regional Haze Rule. The EPA should re-propose the elements of the current proposal to allow stat es the opportunity to comment on these proposed impacts to their SIPs.

EPA Response: The preamble to the proposed rule explained how state obligations under the Regional Haze Rule are impacted by our proposed, now final, determin ation that reliance on the Transport Rule is an

alternative to BART. As stat ed in the preamble (76 FR 82223), our final determination:

“... applies only to EGUs in the states in the Transport Rule region and only to the pollutants subject to the requirements of th e Transport Rule (i.e., SO2 and/or NOx). BART for emissions of other visibility impairing pollutants (e.g., primary PM 2.5 , NH 3 , or VOC) must still be evaluated according to the Regional Haze Rule guidelines. Non-EGU sources also remain subject to the requirements of the Regional Haze Rule.”

In addition to the BART requirements for ot her visibility impair ing pollutants and the requirement to address non-EGU BART, we explai ned in the preamble that our proposed action did not alter or replace any st ates’ reasonable progress targets for 2018 but we will assess the

mid-course review of each state’s SIP to ensure each state’s current implementation strategies will be sufficient to meet these goals. See 76 FR 82229. We also explained that we intend to act on the reasonable progress goals and long-term strategy and other requirements of the Regional Haze Rule (BART determinations for non-EGU s ources, monitoring, consultation with federal land managers, etc) for each state in a separa te notice. See 76 FR 82229. This remains our intention. Lastly, with respect to the Federal Implementation Plan that substitutes reliance on the Transport Rule for reliance on CAIR , we made clear that states are encouraged at any time to submit a SIP revision to incorporate the requireme nts of the Transport Rule at which time we will withdraw our FIP. However, a state may also choose to remain subject to the FIP and not submit a SIP revision (until the second implemen tation period in 2018). As we stated in the preamble:

“Our finding that the Transport Rule makes great er reasonable progress th an BART for EGUs in these states will hold true regard less of whether a state chooses to submit a SIP revision under subpart 52.38 and 52.39 or remain subject to a FIP.” See 76 FR 82221.”Page 143 of 151 

### 4. Florida

Commenter: Susan Schumann, Florida Electric Power Coordinating Group, Inc. (FCG)

Comment: Procedurally, we recognize that action on Regiona l Haze implementation plans is long overdue. The Clean Air Act ("CAA") required EPA to promulgate a FIP for Florida by January 2011, unless Florida's Regional Haze SIP (which has been pending with EPA in final form since August 2010) was approved first. EPA has yet to act and, in fact, recently proposed a consent decree in response to litigation on this issue sett ing deadlines for proposed and final action (May

15th and November 15 th , respectively, for Florida). In addi tion, EPA's failure to act violates a separate statutory deadline th at requires EPA to approve ordisapprove of Florida's SIP submission within 18 months, i.e., by the end of February 2012. See CAA § 110 (k). Further delay in acting on Florida's Regional Haze SIP is unjustifiable. EPA should proceed expeditiously to approve Florida's SIP in its entirety, which the Florida Department of Environmental Protection believed to be fully approvable as finali zed in August 2010. This would include CAIR-based provisions for both th e BART and long-term strategy requirements of Regional Haze. If the Cour t upholds CSAPR, EPA could issu e a "SIP Call" at that time pursuant to CAA § 110(k)(5) to prepare for CS APR's implementation. If CSAPR is upheld by June 2012, for example, the FCG-EC reiterates its suggestion in its January 3rd comments (on proposed consent decree deadlines ) that a November 2012 proposed rule and June 2013 final rule

schedule would be reasonable. Such a schedule is well within the maxi mum 18-month timeframe for revisions in response to a SIP Call. See CAA §110(k)(5). This schedu le also only adds 6 to 7 months to EPA's proposed consent decree final ac tion deadline, a modest extension to a time line EPA already deemed acceptable. Finally, approvi ng currently valid CAIR-based SIP provisions and issuing a SIP Call when and if necessary w ould be in keeping with the CAA's cooperative federalism design.

EPA Response: The EPA is deferring action on the proposed limit ed disapproval and FIP for Florida for the

reasons discussed in section V.C. of the preamble to the final rule.



### 5. Ohio

Commenter: Cheri Budzynski on beha lf of the Ohio Utility Group

Comment: U.S EPA must approve Ohio's revised SIP because it is consistent with the federal rules. Ohio

EPA submitted its SIP revisions in December 2 008 and supplemented revisions in March 2011. Because CAIR will remain in effect, the EGUs in Ohio continue to reduce emissions under CAIR. Thus, the EGUs are reducing emissions at a greater reasonabl e progress than if they were

to install BART. This BART-altera tive is permitted under the regulations. U.S. EPA also asserts that it must propose a FIP in accordance with Se ction 110(c)(1) of the Clean Air Act. This

section states that U.S.EPA must promulgate a FIP within 2 years after the Administrator fully or partially disapproves a SIP "unless the State co rrects the deficiency, and the Administrator approves the plan or plan revision, before the Ad ministrator promulgates such [FIP]." U.S. EPA is proposing a FIP because Ohio's SIP relies on CAIR to satisfy BART. 76 Fed. Reg. 82229. ThePage 144 of 151 Utilities do not see the need for U.S. EPA to issue this FIP at this time because any supposed deficiency in Ohio's SIP based on CAIR emissi on reductions have been remedied by the court's order that requires CAIR to remain in effect pending appeal of the Transport Rule. EGUs will continue to operate and reduce emissions under CA IR until U.S. EPA finaliz es other intrastate transport rules such as the Transport Rule. At that time, Ohio can revise its SIP and supplant

CAIR with these new rules.

EPA Response: Please see section VI.C of the pr eamble of the final rule for EP A’s final determination on FIPs.



### XVII. Regulatory Language Addressing Reasonable Progress Goals and

the Long

­ Term Strategy

Commenter: James A. Capp, Georgia Environmental Protection Division

Comment: Proposed Language in §52.580(a) Should not Include §51.308(d)(3) EPA has included the following in the pr oposed regulatory language for §52.580(a): "The requirements of section 169A of the Clean Air Ac t are not met because the plan does not include approvable measures for meeti ng the requirements of 40 CFR 51.308(d)(3) (emphasis in original)..." §51.308(d)(3) sp ecifically includes EPA ‟ s expectations for the long-term strategy necessary to achieve the reasonable progress goals.

However, in the preamble to the proposed rule, EPA makes it clear that th e proposed rule is not intended to have anything to do with the reasonable progress targets that are part of the long-term strategies for states, or the l ong-term strategy in general. The Preamble has no other mention of the reasonable progress targets and/ or the long-term strategies fo r states that would support the inclusion of §51.308(d)(3) in §52.580(a). So, there is no basis for inclus ion of §51.308(d)(3) in the proposed language for §52.580(a). EPA specifica lly said that the long-term strategy (including the Transport Rule) would be addresse d in a separate rulemaking for each state and

would not be included in this action. Therefor e, the reference to §51.308(d)(3) must be removed from §52.580(a).

Commenter: Susan Schumann, Florida Electric Power Coordinating Group, Inc. (FCG)

Comment: In the proposed rule's preamble, EPA states it in tends to act on long-term strategy and additional Regional Haze requirements other th an BART in a separate notice. See 76 Fed. Reg. 82229 ("We intend to act on the r easonable progress goals and l ong-term strategy ... and other requirements of the [Regional Haze Rule] ... in an i ndividual notice separately from the final rule for this action."). But, contrary to that statement, EPA is proposing an amendment to 40 CFR §

52.534 that states Florida's SIP does not include approvable measures to satisfy 40 CFR § 51.308( d)(3), its "long-term strategy for regiona l haze." As already noted, the FCG-EC believes Florida's SIP should be approved in full. However, to the exte nt EPA continues to pursue its proposal, EPA should revise its proposed amendm ents to 40 CFR § 52.534 so it is consistent with EPA's preamble statements and address the sufficiency of long-term strategy SIP provisions in a subsequent rulemaking.Page 145 of 151 EPA Response: Please see the final regulatory text in the final rule for clarification.



### XVIII. Comments Unrelated to the Proposed Action

Commenter: Paul Bailey, American Coalitio n for Clean Coal Electricity (ACCCE)

Comment:

EPA should determine whether the emission re ductions expected from MATS will achieve “better than BART” visibility improvement. EPA projects that the MATS regulation will result in a 41 percent reduction in SO2 emissions from the EGU sector beyond CSAPR by 2015. See Regulatory Impact Analysis for the Final Merc ury and Air Toxics Standards (Dec. 2011), p. 3- 10. As a result of these reductions, and of sma ller reductions in primary PM2.5 emissions, EPA includes improvement in visibili ty conditions as a co-benefit of the rule. Id. at 5-6. EPA modeling shows a median visibi lity improvement of 0.09 deciview in annual 20% worst visibility days over all Class I area monitor locations, with improvement up to 0.97 deciviews.

Id. at 5b-6. For the same reason that EPA deci ded to model whether CAIR and CSAPR emission

reductions from the EGU sector would achieve “b etter than BART” visibility improvement, EPA should do the same for its new MATS regula tion. While ACCCE does not support the MATS rule, given the dramatic reductions in SO2 emissi ons expected from it, there is every reason to expect that the visibility improvement will be “better than BART” and that the time-consuming source-by-source BART process can be avoided not just in CAIR/CSAPR states but in other

states as well.

EPA Response: EPA agrees that the Mercury Air Toxics (MATS) rule will result in si gnificant reductions in hydrochloric acid emissions and that substantial SO 2 emission reductions will be a co-benefit of

these controls. Enforceable SO 2 emission limits adopted to comply with MATS will be taken into consideration in source-specific BART de terminations in accordance with the Regional Haze Rule Guidelines (See Appendix Y to Part 51 – Guidelines for BART Determinations Under the Regional Haze Rule, section IV.C.)

Commenter: Louis P. Pocalujka, Consumers Energy

Comment: Consumers Energy recommends that EPA work with the states and the elect ric utility industry to consider other regulatory alternatives to enable a smooth transition between CAIR=BART regulatory provisions and any follow-on transport ru le that incorporates a similar determination. In all cases, EPA should ensure that states within the CAIR and CSAPR regions are able to rely on these transport programs or any successor program to address BART obligations.

EPA Response: EPA may or may not consider future transport pr ograms or other regulation s as alternatives to source-specific BART. Regardless, any program th at EPA may consider as a BART alternative would be subject to rigorous analysis and public notice and co mment prior to adoption by the

EPA as an alternative to BART.Page 146 of 151 Commenter: Cathy S. Woollums, MidA merican Energy Holdings Company

Comment: In the Transport Rule proposal, EPA analyzed wh ether the Transport Rule is better than BART by comparing two scenarios – “Nationwide BA RT” and “BART + Transport Rule.” For the “Nationwide BART” comparison, EPA assumed the installation of BART controls that were modeled as presumptive EGU BART limits, for th e SO2 and NOx emission rates. For the BART + Transport Rule,” EPA substituted the presump tive BART rates applied in “Nationwide BART”

with the emission reductions associated with the implementation of the Transport Rule. EPA

then concluded that more SO2 and NOX em ission reductions will be achieved under the Transport Rule + BART-elsewhere” scenario than under the “Nationwide BART” scenario. Based on this conclusion, EPA determined that the implementation of the Transport Rule is better-than BART because grea ter reasonable progress is made under the alternative of the Transport Rule. If EPA adopts this position, EPA must also conclude that it is improper to impose source-specific BART limits in non-Transpor t Rule states that are more stringent than Transport Rule requirements. EPA’s final rule dete rmining that the “Transport Rule is better than BART,” using presumptive BART limits as the ba sis for its conclusion, means that presumptive BART limits should be imposed on BART-eligible f acilities in states outside the Transport Rule.

EPA Response: EPA disagrees with any suggestion th at this rulemaking means that only presumptive limits should be imposed on a BART -eligible facility lo cated outside of the Transport Rule region.



### XIX. Comments Pertaining to the Transport Rule (Cross

­ State Air

Pollution Rule CSAPR))

Commenter: Stephen Cain, Arkansas Elect ric Cooperative Corporation (AECC)

Comment: AECC believes that states that are not subjec t to a given CSAPR allowance trading program should have the option of opting into that pr ogram to comply with the Regional Haze Rule. AECC believes that this option would allow flexib ility in compliance for the Regional Haze Rule while still maintaining a state’s reasonable prog ress goals toward improved visibility in Class I areas. Also, with more stakeholders in a trading program, the program will be more robust.

Commenter: Mark R. Vickery, Texas Co mmission on Environmental Quality

Comment: The basic information EPA used in the Integrat ed Planning Model (IPM) modeling runs was not thoroughly evaluated by the states and should not be used for regulatory decisions. Due to its propriety nature, IPM lack s transparency and makes it difficult fo r states to evaluate the modeled emission projections. The TCEQ has thus been denied adequate opportunity to comment on the accuracy and appropriateness of IPM. Although the EPA indicates that it has addressed the concerns raised by the TCEQ earlier under CSAP R, the TCEQ still has concerns about the results and methodology used in IPM to predict em issions. The use of potentially inaccurate IPM results to support Clean Air Model with Exte nsions (CAMx) modeli ng to determine CSAPR requirements calls into question whet her CSAPR modeling results are valid.Page 147 of 151 Commenter: Mark R. Vickery, Texas Co mmission on Environmental Quality

Comment: While the Texas Commission on Environmental Qu ality (TCEQ) appreciates the EPA’s efforts in working with companies to corr ect errors the EPA made regardi ng affected coal-fired EGUs in Texas with sulfur dioxide (SO 2 ) flue gas desulfurization (FGD) scrubbers, the proposed rule will require substantial reductions in SO 2 emissions in an unprecedented short period of time. Even accounting for the SO 2 FGD scrubbers that have recently come on-line, the TCEQ estimates that

SO 2 reductions would still be required from Texas EGUs in 2012 to meet CSAPR emission budgets, if the rule is upheld by the D.C. Circui t. The proposed rule’s finding that CSAPR is better than BART essentially reinforces the re quirement to comply with CSAPR, which will have substantial impacts on Texas sources in addition to other repe rcussions for electrical power grid reliability and other negativ e impacts elaborated by Texas in filings associated with the CSAPR. The TCEQ has significant concerns that forcing Texas E GUs to make such significant

SO 2 reductions in the unprecedented short compli ance schedule mandated by the EPA will leave some Texas coal-fired EGUs with limited options for compliance and may endanger Texas electrical power grid reliability.

Commenter: Luminant

Comment: For a host of reasons, CSAPR is illegal and should ultimately be vacated by the D.C. Circuit.

Luminant has set out the reasons that CSAPR is illegal in it s request for reconsideration submitted to EPA on August 5, 2011 (later supple mented on September 9 and 29, 2011) and also in its filings with the Court. See Attachments 2, 3, 4, and 5. Luminant also submitted comments (Attachment 6) on EPA’s proposed rule to make adjustments to State emissions budgets based on errors in EPA’s modeling. See 76 Fed. Reg. 63,860 (Oct. 14, 2011). All of these CSAPR submissions and filings by Luminant ar e incorporated herein by reference.

EPA Response: These comments pertaining to CSAPR are not relevant to this rulemaking.



### XX. Comments Pertaining to the Proposed Consent Decree

Commenter: Michael Olive, Progress Energy

Comment: On December 2, 2011, EPA proposed a consent decr ee in response to litigation on this issue, setting a range of 2011 deadlines for proposed and final action on re gional haze SIPs. As a result of the subsequent stay of CSAPR on Decem ber 30, however, the proposed consent decree

deadlines are inconsistent with the timetable needed for considered action on the CSAPR=BART proposal. Therefore, EPA either should decide not to consent to this decree as drafted or else, at a minimum, provide a further opportunity for publ ic review and comment on the proposed decree

to allow for more careful consideration of these issues in view of important developments that had not occurred at the time EPA opene d the proposed decree for comment.

Commenter: Louis P. Pocalujka, Consumers Energy

Comment:Page 148 of 151 Consumers Energy notes that EPA has requested comments on a proposed consent decree that would establish deadlines for EPA to propose and fully promulgate regional haze FIPs or approve regional haze SIPs for over 40 states. Am ong other things, it seems likely that the highly compressed and accelerated deadlines for EPA rulemaking under the proposed decree would force decisions well before the CSAPR stay and litigation can be resolv ed. Under that proposal, EPA would be required to issue proposed actions on a regional haze SIP or FIP for each state subject to CAIR or CSAPR, or both, even befo re the comment period will have closed on the proposed CSAPR=BART rule on February 28, 2012. Other deadlines contained in the consent decree also are unrealistic given the existence of the CSAPR stay and the uncertainties as to when the D.C. Circuit Court of Appeals will render any final decision on the CSAPR litigation, and what that final decision will be. The pr oposed consent decrees deadlines would force decision-making by EPA during a highly uncertain period. Th erefore, Consumers Energy

recommends that EPA should not fina lize the proposed consent decree.

Commenter: John D. Kinsman, Edison Electric Institute (EEI)

Comment: EEI finally notes that EPA has requested comments on a proposed consent decree (76 Fed. Reg. 75544, Dec. 2, 2011) that would esta blish deadlines for EPA to propose and fully promulgate regional haze FIPs or approve regional haze SIPs for over 40 states. Among other things, it seems likely that the highly compressed and ac celerated deadlines for EPA rulemaking under the proposed decree would force decisions well befo re the CSAPR stay and litigation can be resolved. Oral argument on petitions challenging CSPAR in the D.C. Circuit Court of Appeals has been ordered for April 13, 2012 and any decision on this complex litigation will likely take a considerable amount of the court’s time. EPA, however, would be required under the proposed consent decree to issue proposed actions on a regi onal haze SIP or FIP for each of 16 states ( i.e.

, those with respect to which the consent de cree would impose a February 15, 2012 deadline for proposed EPA actions), including 11 states that are subject to CA IR or CSAPR, or both, even before the comment period will have closed on the proposed CSAPR=BART rule on February 28, 2012.. Moreover, the proposed c onsent decree would require final action by EPA on the regional haze SIP or FIP for two other states (T ennessee and West Virginia ) that are subject to CAIR and CSAPR by March 15, 2012, only 16 days af ter the close of the comment period on the proposed CSAPR=BART rule and nearly a month prior to the date of oral argument in the CSAPR litigation. Other deadlines contained in th e consent decree also are unrealistic given the existence of the CSAPR stay, uncertainty as to when the D.C. Circuit Court of Appeals will render any final decision on the CSAPR litigation, and whether the court will vacate or require further agency action with respect to CSAPR if it remands the program to EPA. On their face, therefore, the proposed consent decrees deadli nes would force decision-making by EPA during a highly uncertain period that is cont rary to the situation that existed at the time EPA proposed the

consent decree. EPA therefore should seek an alternative course of action to the proposed

consent decree.

Commenter: Paul Bailey, American Coalitio n for Clean Coal Electricity (ACCCE)

Comment: ACCCE is aware that not taking final action on RH SIPs may not be consistent with the proposed consent decree in certa in states. ACCCE recommends that EPA not enter into the consent decree for this reason, at least as to those states a ffected by the CSAPR/CAIR/BARTPage 149 of 151 proposal. EPA’s policy of harmonizing CAIR an d CSAPR with the regional haze program should not be driven by artifi cial consent decree deadlines when EPA knows that a court decision may be made by mid-year that wi ll clarify the proper policy that EPA should implement.

Commenter: Mark R. Vickery, Texas Co mmission on Environmental Quality

Comment: The EPA should negotiate an extension of the c onsent decree deadlines, due to the uncertainty resulting from the CSAPR stay. The EPA is pr oposing to settle claims brought by several nongovernmental organizations against the EPA for fa ilure to act on states’ Regional Haze SIPs in

National Parks Conservation Association et al. v. Jackson , No. 1:11-sv-1548 (D.D.C.). The proposed consent decree containing deadlines for EPA action for certain states, including Texas, was published for comment in the December 2, 2011, Federal Register (EPA Docket ID No. EPA-HQ-OGC-2011-0929). The EPA should negotiate an extension of the consent decree deadlines (including that for Texas of a final action by November 15, 2012) due to the uncertainty resulting from the CSAPR stay. The proposed rule is insupportable, given that the court has issued a stay of the CSAPR and reinst itution of CAIR. Because the proposed rule relies on CSAPR, it is insupportab le if the D.C. Circuit Court of Ap peals agrees with the Petitioners,

and vacates or remands the CSAPR. In additi on, the EPA should consult with subject states before agreeing to any revised deadlines in orde r to provide adequate time for these states to comply with Regional Haze Rule requirements.

EPA Response:

The consent decree with the National Parks Cons ervation Association was filed in the U.S.

District Court for the District of Colu mbia on March 30, 2012 (Case 1:11-cv-01548-ABJ, Document 21) after consultation w ith the EPA’s Regional Offices with respect to consent decree

deadlines for affected states.



### XXI. Regional Haze Rule Five

­ Year Progress Reports

Commenter: Mark R. Vickery, Texas Co mmission on Environmental Quality

Comment: Texas requests the EPA extend th e deadline for five-year progress reports under the Regional Haze Rule (40 CFR § 51.308(g)). Texas’ five-year progress report deadline is approximately two years from now. Given the possibility that the current legal challenges to CSAPR in the D.C. Circuit may result in required changes to the Transport Rule, and thus may change the EPA’s analysis that CSAPR is better than BART, states must have additional time to determine how this alters the content of the five-year progress report. Consistent with Texas’ request that the consent decree deadlines for the EPA action on the Region al Haze SIPs be extended, Texas requests the deadline for the five-year progress report also reflect a comparable extension.

EPA Response: EPA’s Regional Offices will be working directly w ith states on the required content of the fiveyear progress reports. The oblig ation to submit the five-year pr ogress report is not changed by requirements in either th e proposed or final rule.