[Federal Register Volume 77, Number 110 (Thursday, June 7, 2012)]
[Rules and Regulations]
[Pages 33642-33659]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-13693]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 52

[EPA-HQ-OAR-2011-0729; FRL-9672-9]
RIN 2060-AR05


Regional Haze: Revisions to Provisions Governing Alternatives to 
Source-Specific Best Available Retrofit Technology (BART) 
Determinations, Limited SIP Disapprovals, and Federal Implementation 
Plans

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is finalizing revisions to our rules pertaining to the

[[Page 33643]]

regional haze program. In this action, the EPA is finalizing our 
finding that the trading programs in the Transport Rule, also known as 
the Cross-State Air Pollution Rule (CSAPR), achieve greater reasonable 
progress towards the national goal of achieving natural visibility 
conditions in Class I areas than source-specific Best Available 
Retrofit Technology (BART) in those states covered by the Transport 
Rule. In this action, the EPA is also finalizing a limited disapproval 
of the regional haze State Implementation Plans (SIPs) that have been 
submitted by Alabama, Georgia, Indiana, Iowa, Louisiana, Michigan, 
Mississippi, Missouri, North Carolina, Ohio, Pennsylvania, South 
Carolina, Virginia and Texas because these states relied on 
requirements of the Clean Air Interstate Rule (CAIR) to satisfy certain 
regional haze requirements. To address deficiencies in CAIR-dependent 
regional haze SIPs, in this action the EPA is promulgating Federal 
Implementation Plans (FIPs) to replace reliance on CAIR with reliance 
on the Transport Rule in the regional haze SIPs of Georgia, Indiana, 
Iowa, Kentucky, Michigan, Missouri, Ohio, Pennsylvania, South Carolina, 
Tennessee, Virginia and West Virginia.

DATES: This final rule is effective on August 6, 2012.

ADDRESSES: Docket. The EPA has established a docket for this action 
under docket ID No. EPA-HQ-OAR-2011-0729. All documents in the docket 
are listed in the www.regulations.gov index. Although listed in the 
index, some information is not publicly available, e.g., confidential 
business information or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, will be publicly available only in hard copy. Publicly 
available docket materials are available either electronically in 
www.regulations.gov or in hard copy at the Air and Radiation Docket and 
Information Center, EPA/DC, EPA West Building, Room 3334, 1301 
Constitution Ave. NW., Washington, DC The Public Reading Room is open 
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. The telephone number for the Public Reading Room is (202) 
566-1744, and the telephone number for the Air Docket is (202) 566-
1742.

FOR FURTHER INFORMATION CONTACT: Ms. Martha Keating, Office of Air 
Quality Planning and Standards, Air Quality Policy Division, Mail code 
C539-04, Research Triangle Park, NC 27711, telephone (919) 541-9407; 
fax number: 919-541-0824; email address: keating.martha@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    This action affects state and local air pollution control agencies 
located within the geographic areas covered by the Transport Rule \1\ 
and whose regional haze SIP relied on CAIR \2\ as an alternative to 
BART for sulfur dioxide (SO2) and/or nitrogen oxide 
(NOX) for electric generating units (EGUs) subject to BART 
requirements, or whose regional haze SIP relied on the Transport Rule. 
Some of the EGUs located in such geographic areas may also be affected 
by this action in that affected states now have the option of not 
requiring such EGUs to meet source-specific BART emission limits to 
which these EGUs otherwise could be subject.
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    \1\ See Federal Implementation Plans to Reduce Interstate 
Transport of Fine Particulate Matter and Ozone, 76 FR 48208 (August 
8, 2011).
    \2\ See Rule to Reduce Interstate Transport of Fine Particulate 
Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid Rain 
Program; Revisions to the NOX SIP Call; Final Rule, 70 FR 
25162 (May 12, 2005).
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    These sources are in the following groups:

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         Industry group           SIC \a\                                NAICS \b\
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Electric Services..............      492   221111, 221112, 221113, 221119, 221121, 221122
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\a\ Standard Industrial Classification.
\b\ North American Industry Classification System.

B. Where can I get a copy of this document and other related 
information?

    In addition to being available in the docket, an electronic copy of 
this notice will be posted at http://www.epa.gov/ttn/oarpg/new.html 
under ``Recent Actions.''

C. How is this notice organized?

    The information presented in this notice is organized as follows:

I. General Information
    A. Does this action apply to me?
    B. Where can I get a copy of this document and other related 
information?
    C. How is this notice organized?
II. Background and General Legal Considerations for the EPA's Final 
Action
    A. Background
    1. Criteria for Developing an Alternative Program to BART
    2. What is the relationship between BART and CAIR?
    3. Remand of CAIR and Implications for State Regional Haze 
Implementation Plans
    4. The Transport Rule and Regional Haze SIPs
    B. Summary of the EPA Responses to General and Legal Issues 
Raised in Public Comments
    1. Authority for an Alternative Trading Program
    2. Effect of the Transport Rule Stay
    3. Rationale for Disapproval of SIPs Based on CAIR
    4. The Relationship Between a Better-Than-BART Determination and 
Reasonable Progress
III. Technical Analysis Supporting the Determination of the 
Transport Rule as an Alternative to BART
    A. What analysis did we rely on for our proposed determination?
    1. Application of the Two-Pronged Test
    2. Identification of Affected Class I Areas
    3. Control Scenarios Examined
    4. Emission Projections
    5. Air Quality Modeling Results
    B. Summary of the EPA Responses to Comments on the Technical 
Analysis
    1. Comments Related to the Emissions Scenarios Used in the EPA's 
Analysis
    2. Identification of Affected Class I Areas
    3. Ozone Season-Only Transport Rule States
    4. Comments Asserting That the EPA Needs To Re-Do the Analysis
IV. Reasonably Attributable Visibility Impairment (RAVI)
    A. What did the EPA propose?
    B. Public Comments Related to RAVI
    C. Final Action on RAVI
V. Limited Disapproval of Certain States' Regional Haze SIPs
    A. What did the EPA propose?
    B. Public Comments Related to Limited Disapprovals
    C. Final Action on Limited Disapprovals
VI. FIPs
    A. What did the EPA propose?
    B. Public Comments on Proposed FIPs
    C. Final Action on FIPs
VII. Regulatory Text
    A. What did the EPA propose?
    B. Clarification of Final Regulatory Text
VIII. Statutory and Executive Order Review
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive

[[Page 33644]]

Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act
IX. Statutory Authority

II. Background and General Legal Considerations for the EPA's Final 
Action

A. Background

    Section 169A(b)(2)(A) of the CAA requires states to revise their 
SIPs to contain such measures as may be necessary to make reasonable 
progress towards the natural visibility goal, including a requirement 
that certain categories of existing major stationary sources built 
between 1962 and 1977 procure, install, and operate BART as determined 
by the state.\3\ Under the Regional Haze Rule, states are directed to 
conduct BART determinations for such ``BART-eligible'' sources that may 
be anticipated to cause or contribute to any visibility impairment in a 
Class I area. Rather than requiring source-specific BART controls, 
states also have the flexibility to adopt an emissions trading program 
or other alternative program as long as the alternative provides 
greater reasonable progress towards improving visibility than BART. 40 
CFR 51.308(e)(2). The EPA provided states with this flexibility in the 
Regional Haze Rule, adopted in 1999, and further refined the criteria 
for assessing whether an alternative program provides for greater 
reasonable progress in three subsequent rulemakings. 64 FR 35714 (July 
1, 1999); 70 FR 39104 (July 6, 2005); 71 FR 60612 (October 13, 2006). 
These criteria are described below.
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    \3\ The preamble to the proposed rule provides additional 
background on the visibility requirements of the Clean Air Act and 
the EPA's Regional Haze Rule. 76 FR 82221-22.
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1. Criteria for Developing an Alternative Program to BART
    Specific criteria for determining if an alternative measure 
achieves greater reasonable progress than source-specific BART are set 
out in the Regional Haze Rule at Sec.  51.308(e)(3).\4\ The ``better-
than-BART'' test may be satisfied 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 emissions is significantly 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 worst and best 20 
percent of days.\5\ A test with the following two criteria (the ``two-
pronged visibility test'') would demonstrate ``greater reasonable 
progress'' under the alternative program if both prongs of the test are 
met:
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    \4\ The Regional Haze Rule also allows for a demonstration that 
an alternative program provides for greater reasonable progress to 
be based on the clear weight of evidence. 40 CFR 51.308(e)(2)(E). We 
concluded that a more general test may be appropriate in certain 
circumstances, such as where, for example, technical or data 
limitations limit the ability of a state (or the EPA) to undertake a 
robust comparison using the test set out in 40 CFR 51.308(e)(3).
    \5\ While the Regional Haze Rule directs the state to conduct 
the air quality modeling study, as described in section III.C.2, the 
EPA itself conducted such a study for CAIR and through a notice-and-
comment rulemaking codified the conclusion that the stated criteria 
were met by adding specific provisions allowing the use of CAIR in 
lieu of source-specific BART. We have now done the same for the 
Transport Rule.

--Visibility does not decline in any Class I area,\6\ and
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    \6\ The ``decline'' is relative to modeled future baseline 
visibility conditions in the absence of any BART or alternative 
program control requirements.
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--There is an overall improvement in visibility, determined by 
comparing the average differences between BART and the alternative over 
all affected Class I areas.
2. What is the relationship between BART and CAIR?
    In May 2005, the EPA published CAIR, which required 28 states and 
the District of Columbia to reduce emissions of SO2 and 
NOX that significantly contribute to, or interfere with 
maintenance of, the 1997 national ambient air quality standards (NAAQS) 
for fine particulates and/or ozone in any downwind state. The CAIR 
established emission budgets for SO2 and NOX for 
states that contribute significantly to nonattainment in downwind 
states and required the significantly contributing states to submit SIP 
revisions that implemented these budgets. Because such SIP revisions 
were already overdue, the EPA subsequently promulgated CAIR FIPs for 
the affected states establishing cap and trade programs for EGUs with 
opt-in provisions for other sources. States had the flexibility to 
subsequently adopt SIP revisions mirroring CAIR requirements or 
otherwise providing emission reductions sufficient to address emissions 
that significantly contribute to nonattainment or interfere with 
maintenance of the NAAQS in other states. Many affected states adopted 
CAIR-mirroring SIPs, while others chose to remain under CAIR FIPs.
    As noted above, the Regional Haze Rule allows states to implement 
an alternative program in lieu of BART so long as the alternative 
program has been demonstrated to achieve greater reasonable progress 
toward the national visibility goal than would BART. The EPA made just 
such a demonstration for CAIR in revisions to the regional haze program 
made in 2005. 70 FR 39104. In those revisions, we amended our 
regulations to provide that states participating in the CAIR cap-and-
trade programs under 40 CFR part 96 pursuant to an EPA-approved CAIR 
SIP or states that remain subject to a CAIR FIP in 40 CFR part 97 need 
not require affected BART-eligible EGUs to install, operate and 
maintain BART for emissions of SO2 and NOX. 40 
CFR 51.308(e)(4).
    As a result of our determination that CAIR was ``better-than-
BART,'' a number of states in the CAIR region, fully consistent with 
our regulations, relied on the CAIR cap-and-trade programs as an 
alternative to BART for EGU emissions of SO2 and 
NOX in designing their regional haze implementation plans. 
These states also relied on CAIR as an element of a long-term strategy 
for achieving their reasonable progress goals for their regional haze 
programs.
3. Remand of CAIR and Implications for State Regional Haze 
Implementation Plans
    Following our determination in 2005 that CAIR was ``better-than-
BART,'' the D.C. Circuit Court ruled on several petitions for review 
challenging CAIR on various grounds. As a result of this litigation, 
the D.C. Circuit Court remanded CAIR to the EPA but later decided not 
to vacate the rule.\7\ The court thereby left CAIR and CAIR FIPs in 
place in order to ``temporarily preserve the environmental values 
covered by CAIR'' until the EPA replaced it with a rule consistent with 
the court's opinion. 550 F.3d at 1178.

[[Page 33645]]

On August 8, 2011, EPA promulgated the Transport Rule, which was to 
replace CAIR.\8\ As promulgated, the Transport Rule would have 
addressed emissions in 2012 and later years and would have left the 
requirements of CAIR and the CAIR FIPs in place to address emissions 
through the end of 2011. The D.C. Circuit, however, on December 30, 
2011, stayed the Transport Rule (including the provisions that would 
have sunset CAIR and the CAIR FIPs) and instructed the EPA to continue 
to administer CAIR pending the outcome of the court's decision on the 
petitions for review challenging the Transport Rule. EME Homer City v. 
EPA, No. 11-1302 (Order).
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    \7\ See North Carolina v. EPA, 531 F.3d 896; modified by 550 
F.3d 1176 (D.C. Cir. 2008).
    \8\ See Federal Implementation Plans to Reduce Interstate 
Transport of Fine Particulate Matter and Ozone. 76 FR 48208.
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    Many states relied on CAIR as an alternative to BART for 
SO2 and NOX for subject EGUs, as allowed under 
the then-current BART provisions at 40 CFR 51.308(e)(4). These states 
also relied on the improvement in visibility expected to result from 
controls planned or already installed on sources in order to meet CAIR 
provisions in developing their long-term visibility strategy. In 
addition, many states relied upon their own CAIR SIPs or the CAIR FIPs 
for their states as legal justification for these planned controls and 
consequently did not include separate enforceable measures in their 
long-term strategies (a required element of a regional haze SIP 
submission) to ensure these EGU reductions. These states also submitted 
demonstrations showing that no additional controls on EGUs beyond CAIR 
would be reasonable for the first 10-year implementation period of the 
regional haze program.
    In summary, many of the states in the CAIR-affected region have 
based a number of required elements of their regional haze programs on 
CAIR. However, as CAIR has been remanded and only remains in place 
temporarily, we cannot fully approve these regional haze SIP revisions 
that have relied on the now-temporary reductions from CAIR. Although 
CAIR is currently in effect as a result of the December 30, 2011 Order 
by the U.S. Court of Appeals for the D.C. Circuit staying the Transport 
Rule, this does not affect the substance of the D.C. Circuit's ruling 
in 2008 remanding CAIR to the EPA.
4. The Transport Rule and Regional Haze SIPs
    The Transport Rule as promulgated would establish Transport Rule 
trading programs to replace the CAIR trading programs and would sunset 
the requirements of CAIR and the CAIR FIPs. The Transport Rule, as 
promulgated, requires 28 states in the eastern half of the United 
States to significantly improve air quality by reducing EGU 
SO2 and NOX emissions that cross state lines and 
significantly contribute to ground-level ozone and/or fine particle 
pollution in other states. The rule allows allowance trading among 
covered sources, utilizing an allowance market infrastructure modeled 
after existing allowance trading programs. The Transport Rule allows 
sources to trade emissions allowances with other sources within the 
same program (e.g., ozone season NOX) in the same or 
different states, while firmly constraining any emissions shifting that 
may occur by establishing an emission ceiling for each state.
    In our proposal, we described a technical analysis that we 
conducted to determine whether compliance with the Transport Rule would 
satisfy regional haze BART-related requirements. This technical 
analysis is the basis of this final action in which we are finalizing 
our determination that the Transport Rule achieves greater reasonable 
progress towards the national goal of achieving natural visibility 
conditions than source-specific BART. For this final rule, an updated 
sensitivity analysis was conducted to account for subsequent revisions 
to certain state budgets in the Transport Rule. This analysis is 
described in section III.B.4 of this notice.

B. Summary of the EPA Response to General and Legal Issues Raised in 
Public Comments

    The EPA has based its determination that the Transport Rule will 
achieve greater reasonable progress than BART on the approach used by 
the EPA in evaluating whether a similar program, CAIR, would satisfy 
the regional haze BART-related requirements. As noted above, the 
Regional Haze Rule, promulgated in 1999, provides states with the 
flexibility to adopt an emissions trading program rather than requiring 
source-by-source BART. 40 CFR 51.308(e)(2). Some commenters supported 
our general approach and agreed that the Transport Rule will provide 
for greater reasonable progress. Other commenters, however, disagreed 
with our conclusion that the Transport Rule can be used as an 
alternative to BART. These commenters argued that we lack authority to 
make such a determination and that we cannot rely on the Transport Rule 
because of the current stay of that rule, and that the Transport Rule 
does not meet the necessary regulatory requirements for an alternative 
program in lieu of BART. Some commenters argued that we could not 
conclude that the Transport Rule provides for greater reasonable 
progress without considering each state's reasonable progress goals. 
Other commenters took the position that we should fully approve the 
regional haze SIPs that relied on CAIR to satisfy certain regional haze 
requirements and that our proposed limited disapproval of the regional 
haze SIPs was unnecessary.
1. Authority for an Alternative Trading Program
    As described above, in 2005 (70 FR 39104) the EPA amended its 
Regional Haze Rule to provide that states participating in the CAIR 
cap-and-trade programs need not require affected BART-eligible EGUs to 
install, operate and maintain BART for emissions of SO2 and 
NOX. 40 CFR 51.308(e)(4). As EPA noted in explaining its 
reasons for adopting this approach, ``[nothing] in the CAA or relevant 
case law prohibits a State from considering emissions reductions 
required to meet other CAA requirements when determining whether 
source-by-source BART controls are necessary to make reasonable 
progress. Whatever the origin of the emission reduction requirement, 
the relevant question for BART purposes is whether the alternative 
program makes greater reasonable progress.'' 70 FR at 39143.
    The EPA's authority to establish non-BART alternatives in the 
regional haze program and the specific methodology outlined above for 
assessing such alternatives have been previously challenged and upheld 
by the D.C. Circuit. In the first case challenging the provisions in 
the Regional Haze Rule allowing for states to adopt alternative 
programs in lieu of BART, the court affirmed our interpretation of CAA 
section 169A(b)(2) as allowing for alternatives to BART where those 
alternatives will result in greater reasonable progress than BART. 
Center for Energy and Economic Development v. EPA, 398 F.3d 653, 660 
(D.C. Cir. 2005) (``CEED'') (finding reasonable the EPA's 
interpretation of CAA section 169(a)(2) as requiring BART only as 
necessary to make reasonable progress). In the second case, Utility Air 
Regulatory Group v. EPA, 471 F.3d 1333 (D.C. Cir. 2006) (``UARG''), the 
court specifically upheld our determination that states could rely on 
CAIR as an alternative program to BART for EGUs in the CAIR-affected 
states. The court concluded that the EPA's two-pronged test for 
determining whether an alternative program achieves greater

[[Page 33646]]

reasonable progress was a reasonable one and also agreed with EPA that 
nothing in the CAA required the EPA to ``impose a separate technology 
mandate for sources whose emissions affect Class I areas, rather than 
piggy-backing on solutions devised under other statutory categories, 
where such solutions meet the statutory requirements.'' Id. at 1340.
    Notwithstanding the decisions of the D.C. Circuit, several 
commenters argued that the plain language of the CAA precludes the EPA 
from allowing an alternative to BART. In their comments, these groups 
claimed that there is no statutory authority to exempt a source from 
BART, except as provided for in CAA section 169A(c). Under the 
interpretation of the CAA urged by these commenters, BART must be 
required at each BART source that causes or contributes to visibility 
impairment at any Class I area. The commenters point to recent 
decisions post-dating CEED and UARG in support of their arguments.
    The commenters' arguments that the plain language of the CAA 
precludes reliance on the Transport Rule to satisfy the BART 
requirements were raised in UARG v. EPA and rejected by the D.C. 
Circuit when it denied the petitions for review of the EPA's 
determination that CAIR provided for greater reasonable progress than 
BART. While the commenter argues that the court's decision ``has been 
undermined by subsequent D.C. Circuit decisions,'' we disagree. The 
decisions cited by the commenter, North Carolina v. EPA, 531 F.3d 896, 
906-08 (D.C. Cir. 2008) and NRDC v. EPA, 571 F.3d 1245, 1255-58 (D.C. 
Cir. 2009) address the requirements of sections 110(a)(2)(D)(i)(I) and 
172(c)(1), respectively. Given the differences between the language of 
these statutory provisions and that of section 169A(b)(2), the courts' 
interpretation of these other provisions of the CAA do not undermine 
the two previous rulings of the D.C. Circuit interpreting the 
visibility provisions of the Act. Similarly, the Supreme Court's 
conclusions in Massachusetts v. EPA, 549 U.S. 497, 528-29 (2007) 
regarding the meanings of ``each'' and ``any'' do not conflict with or 
impact the EPA's reading of section 169A(b)(2) of the CAA or the D.C. 
Circuit's conclusion that the agency's interpretation of the statute is 
a reasonable one. As the CEED court explained, the EPA interprets this 
provision to mean that ``each SIP's `emission limits, schedules of 
compliance, and other measures' must `include' BART only `as may be 
necessary to make reasonable progress toward' national visibility 
goals.'' 398 F.3d 653, quoting 42 U.S.C. 7491(b)(2); see also Central 
Arizona Water Conservation District v. EPA, 990 F.2d 1531, 1543 (9th 
Cir. 1993) (upholding the same interpretation of section 169A(b)(2)). 
We do not agree, therefore, that the EPA's regulations allowing for the 
adoption of a trading program that provides for greater reasonable 
progress than BART in place of source-specific BART are inconsistent 
with the CAA.
    These commenters also argue that the EPA can exempt sources from 
BART only if the EPA complies with the requirements of CAA section 
169A(c)(1). This provision of the CAA allows the EPA to exempt a source 
from the BART requirements, by rule, upon a determination that the 
source is not reasonably anticipated to cause or contribute to 
significant visibility impairment. As the commenters note, the 
appropriate Federal Land Manager(s) must agree with the exemption 
before it can go into effect.
    We do not agree that the provisions governing exemptions to BART 
apply to our determination that the Transport Rule will make greater 
reasonable progress than BART. Section 169A(b)(2) of the CAA requires 
each visibility SIP to contain ``such emission limits, schedules of 
compliance and other measures as may be necessary to make reasonable 
progress toward the national goal * * * including * * * a requirement 
that [certain major stationary sources] * * * procure, install, and 
operate * * * [BART].'' Based on this language, in 1999, the EPA 
concluded that if an alternative program can be shown to make greater 
reasonable progress toward eliminating or reducing visibility 
impairment, then installing BART for the purpose of making reasonable 
progress toward the national goal is no longer necessary. This 
interpretation of the visibility provisions of the CAA has been upheld 
three times by the courts, as noted above.
    We also received comments arguing that the EPA cannot rely on the 
Transport Rule as an alternative to BART because the emission 
reductions do not meet the requirement of 40 CFR 51.308(e)(2)(iv) which 
provides that ``the emission reductions resulting from the emissions 
trading program * * * will be surplus to those reductions resulting 
from measures adopted to meet requirements of the CAA as of the 
baseline date of the SIP.''
    We do not agree with the comments that the emissions reductions 
resulting from the Transport Rule must be ``surplus to those measures 
adopted to meet requirements of the CAA as of the baseline date of the 
SIP.'' We note that the requirements of 40 CFR 51.308(e)(2) are not 
directly applicable to this action, as the special provisions in the 
Regional Haze Rule addressing the Transport Rule are codified at 40 CFR 
51.308(e)(4). Nonetheless, our determination that the Transport Rule 
will result in greater visibility improvement than BART is fully 
consistent with the requirement in 40 CFR 51.308(e)(2)(iv). In 
promulgating the Regional Haze Rule in 1999, the EPA explained that the 
``baseline date of the SIP'' in this context means ``the date of the 
emissions inventories on which the SIP relies,'' 64 FR 35742, which is 
``defined as 2002 for regional haze purposes,'' 70 FR 39143. Any 
measure adopted after 2002 is accordingly ``surplus'' under 40 CFR 
51.308(e)(2)(iv). This is consistent with the discussion in the 
preamble to the 1999 Regional Haze Rule indicating that the regional 
haze program ``is being promulgated in a manner that facilitates 
integration of emission management strategies for regional haze with 
the implementation of programs for [the 1997 ozone and 
PM2.5] NAAQS.'' 64 FR 35719. The EPA took this approach in 
the Regional Haze Rule to allow measures needed to attain the then new 
NAAQS to be ``counted'' as making ``reasonable progress'' toward the 
visibility goal. The Transport Rule was adopted to help areas come into 
attainment with and maintain the 1997 ozone and PM NAAQS, as well as 
the 2006 24-hour PM2.5 NAAQS. The EPA accordingly does not 
view the requirement in 40 CFR 51.308(e)(2)(iv) as limiting our ability 
to demonstrate that the Transport Rule reductions are surplus, as 
defined in the Regional Haze Rule.
2. Effect of the Transport Rule Stay
    Several commenters contended that the EPA cannot rely on the 
Transport Rule as a BART alternative because implementation of the rule 
has been stayed. These commenters argue that an alternative program in 
place of BART must constitute a ``requirement,'' and be enforceable, 
and that as long as the Transport Rule is stayed, it cannot qualify as 
a ``requirement'' nor can it be enforced. These commenters also claim 
that because the rule may change if affirmed only in part, the EPA 
cannot find that the Transport Rule will make greater reasonable 
progress than BART.
    We do not agree that the EPA cannot rely on the Transport Rule 
because of the stay imposed by the D.C. Circuit. We base this 
conclusion on both the structure of 40 CFR 51.308(e)(4) and on the 
long-term focus of our analysis underlying today's rule.

[[Page 33647]]

    Neither our regulations in 2005 addressing CAIR, nor our 
regulations in this rule addressing the Transport Rule, require states 
to participate in or implement these programs or to otherwise include 
enforceable measures in their regional haze SIPs. In 2005, having 
determined that CAIR would provide for greater reasonable progress 
toward the national goal than would BART, the EPA promulgated 
regulations providing that a state participating in one of the CAIR 
trading programs ``need not require'' EGUs to put on BART controls. 
Similarly, our regulations in this rule provide that a state subject to 
a Transport Rule FIP (or approved Transport Rule SIP) need not require 
BART controls on its EGUs. Accordingly, today's regulations addressing 
the Transport Rule are not ``requirements'' that a state participate in 
the interstate transport trading programs. Similarly, a regional haze 
SIP or FIP that relies on 40 CFR 51.308(e)(4) does not impose 
enforceable requirements on EGUs. However, a state may take advantage 
of this provision only if it is subject to an underlying Transport Rule 
FIP (or SIP approved as meeting the requirements of the trading 
program). We note that the underlying Transport Rule FIP or SIP does 
contain the applicable requirements that will ensure that the emissions 
reductions from the Transport Rule will occur.
    We also note that while the Transport Rule is not currently 
enforceable, the air quality modeling analysis underlying our 
determination that the Transport Rule will provide for greater 
reasonable progress than BART is based on a forward-looking projection 
of emissions in 2014. However, any year up until 2018 (the end of the 
first regional haze planning period) would have been an acceptable 
basis for comparing the two programs under the Regional Haze Rule. See 
40 CFR 51.308(e)(2)(iii). We anticipate that requirements addressing 
all significant contribution and interference with maintenance 
identified in the Transport Rule will be implemented prior to 2018.
    We do not agree with the comment that because the Transport Rule is 
subject to review by the D.C. Circuit, we cannot move ahead with our 
determination that it provides for greater reasonable progress than 
BART. We do not view the stay imposed by the D.C. Circuit pending 
review of the underlying rule as undermining our conclusion that the 
Transport Rule will have a greater overall positive impact on 
visibility than BART both during the period of the first long-term 
strategy for regional haze and going forward into the future. We 
recognize, as one commenter suggests, that we may be obliged to revisit 
the regional haze plans that rely on the Transport Rule if the rule is 
not upheld, or if it is remanded and subsequently revised. However, we 
do not consider it appropriate to await the outcome of the D.C. 
Circuit's decision on the Transport Rule before moving forward with the 
regional haze program as we believe the Transport Rule has a strong 
legal basis, and given the judicial decree requiring the EPA to meet 
its statutory obligations to have a FIP or an approved SIP meeting the 
Regional Haze Rule requirements in place for most states before the end 
of 2012.
3. Rationale for Disapproval of SIPs Based on CAIR
    We received comments that our proposed limited disapproval of the 
regional haze SIPs that rely on CAIR and the proposed FIPs is not 
necessary. Commenters noted that CAIR remains in place and that SIPs 
that rely on CAIR are fully consistent with our existing regulations. 
Some commenters suggested that we revise the Regional Haze Rule to 
allow states to rely on either CAIR or the Transport Rule to meet the 
BART requirements.
    While the regional haze program is a long-term program that 
requires states to submit SIPs every 10 years to assure continued 
reasonable progress toward natural background conditions, the BART 
requirements or alternatives to BART must be fully implemented by 2018. 
The required establishment of BART limits, or an alternative to BART, 
is accordingly undertaken only once. Although CAIR is currently in 
place as a result of the D.C. Circuit's stay of the Transport Rule, we 
do not anticipate that CAIR will continue in effect indefinitely. As a 
result, our determination that CAIR provides for greater reasonable 
progress than BART is no longer valid. This is because, as a general 
matter, any source required to install BART controls must maintain the 
BART control equipment and meet the BART emission limit established in 
the SIP so long as the source continues to operate. See 40 CFR 
51.308(e). As BART would result in emission reductions going forward 
beyond 2018, our determination that CAIR provides for greater 
reasonable progress than BART was based on the assumption that the 
reductions required by CAIR would be enforceable requirements that 
would also apply going forward to 2018 and beyond. That assumption is 
no longer appropriate. We are issuing a limited disapproval rather than 
a full disapproval, however, to allow the states to rely on the 
emission reductions from CAIR for so long as CAIR is in place.
4. The Relationship Between a Better-Than-BART Determination and 
Reasonable Progress
    Each state with a Class I area is required to set goals for each 
Class I area that provide for reasonable progress towards improving 
visibility. There must be one goal for the 20 percent best visibility 
days and one goal for the 20 percent worst visibility days. States take 
into account a number of factors in establishing reasonable progress 
targets, including in some cases an analysis of the measures needed to 
achieve the ``uniform rate of progress'' \9\ over the 10-year period of 
the SIP and a determination of the reasonableness of such measures. 40 
CFR 51.308(d)(1). The Regional Haze Rule does not mandate specific 
milestones or rates of progress, but instead calls for states to 
establish goals that provide for ``reasonable progress'' toward 
achieving natural background conditions.
---------------------------------------------------------------------------

    \9\ For each Class I area, the uniform rate of progress is based 
on the calculation of the steady rate of improvement in visibility 
needed to achieve natural background conditions by 2064.
---------------------------------------------------------------------------

    Several commenters argued that our determination that the Transport 
Rule provides for greater reasonable progress than BART is improper 
because it considers BART in isolation, without reference to the 
consideration of the reasonable progress goals in the regional haze 
plans. These commenters contend that BART is critical to the state's 
ability to reach its reasonable progress goals and that the EPA should 
have considered the impact of our proposed determination in instances 
where the states relied on emissions reductions consistent with 
presumptive BART to meet reasonable progress goals.
    The EPA disagrees with the argument that we cannot compare the 
visibility improvements from Transport Rule against those from BART 
without considering the reasonable progress goals of each affected 
regional haze SIP. BART is one measure for addressing visibility 
impairment, but it is not ``the mandatory vehicle of choice.'' CEED, 
398 F.3d at 660. As such, BART is not a required element of the 
regional haze SIPs so long as an appropriate alternative achieves 
greater reasonable progress.
    The commenters' suggestion that reasonable progress goals are 
defined and that each regional haze SIP must accordingly ensure a 
certain rate of progress toward natural visibility also 
mischaracterizes the regional haze program. As noted above, the 
reasonable

[[Page 33648]]

progress goals for each Class I area are set by the states. States, 
both in and out of the CAIR region, set their reasonable progress goals 
based, in part, on anticipated reductions in emissions due to CAIR. In 
setting reasonable progress goals, these states estimated future 
emissions in 2018 from a number of sources and source categories, 
including emissions from EGUs. For sources in the CAIR region, states 
relied on emissions reductions from CAIR--not BART--to estimate future 
EGU emissions. As a result, source-specific BART across the CAIR region 
is clearly not critical to the states' ability to meet the goals in 
their SIPs. For the small handful of states that were not subject to 
CAIR but are now subject to the Transport Rule, today's determination 
that the Transport Rule provides for greater reasonable progress than 
BART gives those states the opportunity to consider revising their 
regional haze SIPs to substitute participation in the Transport Rule 
for source-specific BART. Whether such a revision meets the 
requirements of the Regional Haze Rule, including the requirement that 
a plan include such measures as may be necessary to make reasonable 
progress toward the national goal, would be addressed in a notice and 
comment rulemaking that would provide an opportunity for review of the 
adequacy of such an approach. We disagree with the commenters' 
statement, however, that source-specific BART as a general matter is 
necessary to ensure reasonable progress.

III. Technical Analysis Supporting the Determination of the Transport 
Rule as an Alternative to BART

A. What analysis did we rely on for our proposed determination?

    The technical analysis that the EPA relied on for our proposed and 
now final determination that the Transport Rule is better than BART is 
described in detail in the preamble of the proposed rule and in the 
Technical Support Document (TSD).\10\ To provide context for the 
summary of the public comments and our responses to them, we are 
providing a summary of the technical analysis in the following 
sections.
---------------------------------------------------------------------------

    \10\ Technical Support Document for Demonstration of the 
Transport Rule as a BART Alternative, Docket EPA-HQ-OAR-2011-0729.
---------------------------------------------------------------------------

1. Application of the Two-Pronged Test
    The two-pronged test for determining if an alternative program 
achieves greater reasonable progress than source-specific BART is set 
out in the Regional Haze Rule at 40 CFR 51.308(e)(3). The underlying 
purpose of both prongs of the test is to assess whether visibility at 
Class I areas would be better with the alternative program in place 
than without it. Under the first prong, visibility must not decline at 
any affected Class I area on either the best 20 percent or the worst 20 
percent days as a result of implementing the Transport Rule; and, under 
the second prong the 20 percent best and 20 percent worst days should 
be considered in determining whether the alternative program under 
consideration (in the case of this rulemaking, the Transport Rule) 
produces greater average improvement than source-specific BART over all 
affected Class I areas. Together, these tests ensure that the 
alternative program provides for greater reasonable progress than would 
source-specific BART.
    In applying the two-pronged test to the Transport Rule control 
scenario and the source-specific BART control scenario, we used a 
future (2014) projected baseline. The 2014 baseline does not include 
the Transport Rule, BART, or CAIR control programs. As described in the 
preamble to the proposed rule, the 2014 baseline allows a comparison of 
visibility conditions as they are expected to be at the time of the 
program implementation, but in the absence of the program. This ensures 
that the visibility improvement or possible degradation is due to the 
programs being compared--source-specific BART and the Transport Rule 
alternative--and not to other extrinsic factors. Also, under the 
Regional Haze Rule any program adopted after 2002 is considered 
``surplus'' and eligible to be counted as all or part of an alternative 
program in place of BART.
2. Identification of Affected Class I Areas
    As described above, under the second prong of the test, the 
visibility comparison is over all ``affected'' Class I areas. The EPA 
added the term ``affected'' to clarify that visibility need not be 
evaluated nationwide. 71 FR 60620. We considered two approaches to 
identify the Class I areas ``affected'' by the Transport Rule as an 
alternative control program to source-specific BART. First, we 
identified 140 Class I areas represented by 96 Interagency Monitoring 
of Protected Visual Environments (IMPROVE) monitors in the 48 
contiguous states with sufficiently complete monitoring data available 
to support the analysis. In the first ``eastern'' approach, we 
identified as affected Class I areas the 60 Class I areas contained in 
the eastern portion of the Transport Rule modeling domain. The second 
approach we considered was a ``national'' approach in which visibility 
impacts on 140 Class I areas across the 48 contiguous states were 
evaluated (including the 60 contained within the Transport Rule 
region). Consideration of this national region accounted for the 
possibility that the Transport Rule might have the effect of increasing 
EGU emissions in the most western portion of the United States due to 
shifts in electricity generation or other market effects. We noted that 
the ``eastern'' Transport Rule modeling grid used a horizontal 
resolution of 12 km (all 60 ``eastern'' Class I areas were contained 
within the 12 km grid). The modeling grid for areas outside of the 
eastern Transport Rule region used a more coarse horizontal resolution 
of 36 km.
    We requested comment on whether the ``affected Class I areas'' 
should be considered to be the 60 Class I areas located in the 
Transport Rule eastern modeling domain, the larger set of 140 Class I 
areas in the larger national domain, or some other set. We noted that 
given the modeling results, the choice between the 60 Class I areas or 
the 140 Class I areas did not affect our proposed conclusion that both 
prongs of the two-pronged test are met.
3. Control Scenarios Examined
    The Transport Rule requires 28 states in the eastern half of the 
United States to reduce EGU SO2 and NOX emissions 
that cross state lines and contribute to ground-level ozone and fine 
particle pollution in other states. BART, on the other hand, is 
applicable nationwide and covers 26 industrial categories, including 
EGUs, of a certain vintage. In our comparison, we sought to determine 
whether the Transport Rule cap-and-trade program for EGUs will achieve 
greater reasonable progress than would BART for EGUs only. Therefore, 
we examined two relevant control scenarios. The first control scenario 
examined SO2 and NOX emissions from all EGUs 
nationwide after the application of BART controls to all BART-eligible 
EGUs (``Nationwide BART''). In the second scenario, EGU SO2 
and NOX emissions reductions attributable to the Transport 
Rule were applied in the Transport Rule region and BART controls were 
applied to all BART-eligible EGUS outside the Transport Rule region 
(``Transport Rule + BART elsewhere''). For the first prong of the test, 
the ``Transport Rule + BART elsewhere'' scenario was compared to the 
2014 future year base case. The comparison to the 2014 future year 
``Base Case'' allows the EPA to ensure that the Transport Rule would 
not cause degradation in visibility from conditions predicted for the 
year 2014 in the

[[Page 33649]]

absence of the Transport Rule, BART and CAIR.
    For both the ``Nationwide BART'' scenario and the ``Transport Rule 
+ BART elsewhere'' scenario, we modeled the presumptive EGU BART limits 
for SO2 and NOX emission rates as specified in 
the BART Guidelines (Guidelines for BART Determinations Under the 
Regional Haze Rule, 70 FR 39104, July 6, 2005), unless an actual 
emission rate at a given unit with existing controls is lower. In the 
latter case, we modeled the lower emission rates. Our analysis assumed 
that all BART-eligible EGUs were actually subject to BART requirements 
and that presumptive BART limits would be applied to 100 megawatt (MW) 
EGUs for SO2 and 25 MW EGUs for NOX, regardless 
of the magnitude of their annual total emissions. In our analysis, in 
both scenarios we constrained certain EGUs by emission limits other 
than presumptive limits due to a proposed or final regional haze SIP, a 
proposed or final regional haze FIP, a final consent decree, or state 
rules. Where we had evidence of more stringent emission limits than the 
presumptive BART limits, we used them. These units and their emission 
limits are detailed in the TSD.
    There are five states that are subject to the Transport Rule 
requirements during the ozone season only (Oklahoma, Arkansas, 
Louisiana, Mississippi and Florida). For these states, in the 
``Transport Rule + BART elsewhere'' scenario post-combustion 
NOX controls were assumed to operate outside of the ozone 
season only when required to do so for a reason other than Transport 
Rule requirements, e.g., a permit condition or a provision of a consent 
decree. In the ``National BART'' scenario, BART NOX controls 
were assumed to operate year-round.
4. Emission Projections
    To estimate emissions expected from the scenarios described in 
section IV, we used the Integrated Planning Model (IPM).\11\ The IPM 
was used in this case to evaluate the emissions impacts of the 
described scenarios limiting the emissions of SO2 and 
NOX from EGUs. The IPM projections of annual NOX 
and SO2 emissions from EGUs for the ``Transport Rule + BART 
elsewhere'' control scenario were used as inputs to the air quality 
model to assess the visibility impacts of the emission changes. The IPM 
projections were based on the state budgets prescribed in the final 
Transport Rule published on August 8, 2011, and the supplemental 
proposal published on July 11, 2011.\12\ We noted that on October 14, 
2011, the EPA issued a proposed notice that would increase 
NOX and SO2 budgets for certain states in 
accordance with revisions to certain unit-level input data. 76 FR 
63860. We requested comment on the potential effect of the proposed 
increases to state budgets. We noted that even with the proposed 
increases to certain state budgets, we believed that the two-pronged 
test is satisfied given the still-substantial reductions in emissions 
under the Transport Rule.
---------------------------------------------------------------------------

    \11\ Extensive documentation of the IPM platform may be found at 
http://www.epa.gov/airmarkets/progsregs/epa-ipm/transport.html.
    \12\ See Federal Implementation Plans To Reduce Interstate 
Transport of Fine Particulate Matter and Ozone 76 FR 48208 (August 
8, 2011). The ozone season state budgets for the states affected by 
the supplemental proposal published on July 11, 2001 (76 FR 40662) 
are included in the ``Transport Rule + BART elsewhere'' control 
scenario.
---------------------------------------------------------------------------

5. Air Quality Modeling Results
    To assess the air quality metrics that are part of the two-pronged 
test, we used the IPM emission projections as inputs, to an air quality 
model to determine the impact of ``Transport Rule + BART elsewhere'' 
and ``Nationwide BART'' controls on visibility in the affected Class I 
areas. To project air quality impacts we used the Comprehensive Air 
Quality Model with Extension (CAMx) version 5.3. The air quality 
modeling analysis and related analyses to project visibility 
improvement are described in more detail in the TSD for the Transport 
Rule.\13\ The visibility projections for each Class I area are 
presented in the TSD for our proposed action.
---------------------------------------------------------------------------

    \13\ See Air Quality Modeling Final Rule Technical Support 
Document, U.S. EPA, June 2011, which is found at: http://www.epa.gov/airtransport/pdfs/AQModeling.pdf.
---------------------------------------------------------------------------

    We proposed that the ``Transport Rule + BART elsewhere'' control 
scenario passed the first prong of the visibility test considering 
affected Class I areas located in both the ``eastern'' region of 60 
Class I areas and the ``national'' region of 140 Class I areas We also 
proposed our determination that the ``Transport Rule + BART elsewhere'' 
alternative measure passed the second prong of the test that assesses 
whether the alternative results in greater average visibility 
improvement at affected Class I areas compared to the ``Nationwide 
BART'' scenario. The ``Transport Rule + BART elsewhere'' alternative 
passed the second prong of the test, regardless of which way affected 
Class I areas are identified.

B. Summary of the EPA Responses to Comments on the Technical Analysis

    Many comments supported the EPA's technical analysis and our 
determination that the Transport Rule satisfies the requirements for an 
alternative to source-specific BART. Other commenters raised objections 
to the EPA's determination. Some of these were general legal objections 
related to the EPA's legal authority for its action and its 
interpretation of authorizing regulations and statutes. The EPA's 
response to those general legal objections is discussed above in 
section III.A. Other objections raised technical issues related to the 
EPA's emissions and air quality modeling scenarios that were used to 
compare the results of the Transport Rule control scenario with the 
source-specific BART control scenario. In this section of the preamble 
we provide an overview of the EPA's review of these technical comments. 
Our responses are discussed in detail in the Response to Comments 
document, which is included in the docket for this rulemaking.
1. Comments Related to the Emissions Scenarios Used in the EPA's 
Analysis
    As noted above, the EPA developed two emissions scenarios: A 2014 
``Nationwide BART'' scenario and a 2014 ``Transport Rule + BART 
elsewhere'' scenario. Nationwide emissions were substantially lower 
under the ``Transport Rule + BART elsewhere'' scenario. Some commenters 
asserted that the emissions results for these two scenarios were skewed 
in favor of the Transport Rule. These commenters asserted that the EPA 
underestimated the emissions reductions from BART, and overestimated 
the emission reductions from the Transport Rule. These commenters raise 
issues generally with the use of presumptive BART limits in the 
``Nationwide BART'' scenario and questioned whether the EPA correctly 
applied the presumptive BART limits.
    The EPA disagrees with commenters asserting that the presumptive 
BART limits were inappropriate for use in this analysis. While the EPA 
recognizes that a case-by-case BART analysis may, in some source-
specific assessments, result in emission limits more stringent than the 
presumptive limits, these limits are reasonable and appropriate for use 
in assessing regional emissions reductions from the BART scenario. This 
has been the EPA position since 2005. 71 FR 60619 (``the presumptions 
represent a reasonable estimate of a stringent case BART * * * because 
* * * they would be applied across the board to a wide

[[Page 33650]]

variety of units with varying impacts on visibility, at power plants of 
varying size and distance from Class I areas''). Moreover, as discussed 
in detail in the Response to Comment document, the EPA believes that 
these comments overestimate the emissions reductions that would be 
associated with case-by-case BART because the commenters' assertions of 
``best'' technology for BART ignore other factors, including cost of 
control and resulting visibility improvement, that are critical 
components of a source-specific BART analysis.
    The EPA also received numerous comments concerning specific units 
for which the commenters believed the BART limits for SO2 
had been incorrectly applied in IPM. Our review of these comments, 
which is presented in detail in the Response to Comments document, 
shows that (with minor exceptions) the EPA correctly applied these 
presumptive limits. After reviewing these comments and the IPM outputs, 
we conclude that many of these comments stemmed from an apparent 
misunderstanding of the EPA's application of the presumptive limits in 
IPM. Some of the unit-level comments pertained to units less than 100 
MW for which the presumptive limits did not apply. Other comments 
pertained to units that did not meet both the 95 percent removal 
efficiency and the 0.15 lb/MMBtu rate. For BART-affected units greater 
than or equal to 100 MW, the EPA's IPM modeling required that they meet 
a SO2 emission rate limit of 0.15 lbs/MMBtu or a removal 
efficiency of 95 percent. As sources are only required to comply with 
one of these metrics (emission rate or percent removal), the IPM 
correctly determined that some BART sources could comply with an 
emission rate higher than 0.15 lb/MMBtu (while meeting the 95 percent 
FGD removal efficiency requirement) and some could comply with a 
removal efficiency less than 95 percent (while meeting the emission 
rate requirement).
    The EPA also disagrees with the commenters' assertion that our 
application of presumptive limits for NOX should have 
provided for the installation of add-on equipment such as selective 
catalytic reduction (SCR). For all types of boilers other than cyclone 
units, the presumptive NOX limits in the EPA's BART 
guidelines are based only on the use of current combustion control 
technology including low NOX burners, over-fire air, and 
coal reburning.\14\ 70 FR 39134.
---------------------------------------------------------------------------

    \14\ The EPA notes that a BART determination made under the 
regional haze program is distinct from a best available control 
technology (BACT) determination made under the prevention of 
significant deterioration (PSD) program. 42 U.S.C. 7475. The fact 
that a control technology has been determined to be BART does not 
mean that the same controls would be found to meet the requirements 
for BACT.
---------------------------------------------------------------------------

    Finally, the EPA disagrees with commenters who expressed concerns 
that the ``no-CAIR'' base case was inappropriate for use in this 
analysis. The EPA agrees with commenters' observation that the 2014 
base case leads to emission increases relative to current emissions. 
However, as explained in detail in the preamble to the final Transport 
Rule, the EPA believes this is a reasonable and appropriate case to use 
for estimating emissions reductions that are attributable to the 
Transport Rule, and for estimating air quality concentrations in 
absence of the Transport Rule. 76 FR 48223.
2. Identification of Affected Class I Areas
    Under the Regional Haze Rule, the reasonable progress achieved by 
an alternative program in ``affected Class I areas'' is compared to the 
reasonable progress achieved by source-specific BART. In our proposal, 
the EPA requested comment on whether the ``affected Class I areas'' 
should be considered to be (1) The 60 Class I areas located in the 
Transport Rule eastern modeling domain, (2) the larger set of 140 Class 
I areas, or (3) some other set. We noted that our air quality modeling 
results showed that the choice between the 60 Class I areas or the 140 
Class I areas did not affect our proposed conclusion that both prongs 
of the two-pronged test are met.
    Some commenters agreed that the EPA can properly rely on an 
assessment of the 60 Class I areas without referring to the results of 
the additional 80 Class I areas. These commenters noted, as did the 
EPA, that because both assessment approaches support the Transport Rule 
as a lawful and reasonable BART alternative, the EPA may appropriately 
confirm its determination based on either approach. Other commenters 
argued that the EPA improperly averaged across all Class I areas. These 
commenters argued that both the 60 Class I area region and the 140 
Class I area region are too broad. These commenters presented 
information illustrating the ``Nationwide BART'' scenario to be 
superior to the Transport Rule alternative if the EPA averaged 
visibility improvement at the 27 Class I areas west of the Mississippi 
River but east of the Rocky Mountains. These commenters asserted that 
the EPA should not average across states, but rather should assume 
Transport Rule changes in one state at a time, and average the results 
for areas in (and nearby) that state.
    The EPA agrees with comments supporting our approach to identifying 
the ``affected'' Class I areas. The EPA agrees that in either case, the 
analysis shows that the two-pronged test for determining a BART 
alternative is satisfied. The EPA does not agree that it is necessary 
to evaluate results for a sub-region such as the 27 Class I areas 
suggested by some commenters. Given that the Transport Rule affects 
emissions and air quality over a large region, the EPA believes it is 
reasonable to consider that entire region in evaluating the Class I 
areas that are also ``affected'' by this rule. The possibility of 
greater visibility improvement due to source-specific BART in specific 
Class I areas within the region of ``affected Class I areas'' is 
inherent to the two-pronged test that has been upheld by the D.C. 
Circuit Court. As long as the average visibility improves over the 
entire region and no Class I area experiences degradation, the 
alternative is an appropriate and approvable alternative to source-
specific BART. See 471 F.3d 1333 (D.C. Cir. 2006) (``UARG'') (``nothing 
in Sec.  169A(b)'s `reasonable progress' language requires as least as 
much improvement in each and every individual area as BART itself would 
achieve'').
3. Ozone Season-Only Transport Rule States
    Some commenters noted that five states--Arkansas, Florida, 
Louisiana, Mississippi and Oklahoma--are covered by the Transport Rule 
ozone season only, and thus these states are only required to hold 
allowances and limit statewide NOX emissions during May 
through September. Commenters expressed concerns that while imposition 
of BART would require year-round operation of NOX controls, 
under the Transport Rule there would be no assurance that 
NOX emission controls would operate during the remaining 7 
months of the year. Accordingly, the commenters asserted that for these 
states the Transport Rule is not ``better than BART'' because it would 
allow for a potential degradation during these months, and thus the EPA 
should consider the Transport Rule to fail the first prong of the two-
pronged test.
    The EPA carefully considered this comment, and we reviewed the 
results of our technical analysis to evaluate whether such seasonal 
differences could occur. For programs which regulate ozone season 
NOX only, seasonal differences in the emissions rate (lb/

[[Page 33651]]

MMBtu) can be seen where a source installs post-combustion controls 
such as selective catalytic reduction (SCR) or selective non-catalytic 
reduction (SNCR). It is probable that source owners would not operate 
the controls in non-ozone season months to avoid the extra cost of 
control. These effects are indeed seen in the data reported to the EPA. 
However, where a program results in the imposition of combustion 
controls such as low-NOX burners and overfire air, the 
controls are an integral part of the operational design of the EGU. 
Accordingly, where combustion controls are installed in response to an 
ozone season-only requirement, the EPA does not expect to see seasonal 
differences in the lb/MMBtu NOX emission rate.
    Our review of the IPM predictions of how EGUs are likely to comply 
with the Transport Rule indicated that in the ``Transport Rule + BART 
elsewhere'' scenario, NOX control in the five ozone season-
only states is achieved predominantly by combustion controls rather 
than post-combustion controls. In the Transport Rule scenario, for four 
of the five states (Arkansas, Louisiana, Mississippi and Oklahoma), the 
EPA projects that any additional NOX controls resulting from 
the Transport Rule would be combustion controls only. Furthermore, as 
explained above, for the ``Nationwide BART'' control scenario we 
applied the presumptive NOX limits to all BART-eligible 
sources nationwide that were not already equipped with post-combustion 
controls. According to the EPA's BART guidelines, for all types of 
boilers other than cyclone units the presumptive BART limits for 
NOX are based on the use of current combustion control 
technology.\15\ 70 FR 39134. For BART sources already equipped with 
post-combustion controls, we assumed under BART those controls would 
operate year-round. Therefore, the ``Nationwide BART'' scenario would 
result in generally uniform emission rates throughout the year in the 
five ozone season-only states. As a result, with the exception of 
Florida, there is no seasonal difference in NOX emission 
rates between the ``Transport Rule + BART-elsewhere'' scenario and the 
``Nationwide BART'' scenario. In Florida, the one instance where IPM 
indicates a season-dependent difference between the two control 
scenarios, there are some EGUs with existing post-combustion controls 
(SCR) that the EPA projects would not operate at all unless 
incentivized to do so by either a source-specific BART requirement or 
by the Transport Rule, and under the Transport Rule would operate only 
during the ozone season. Our analysis of the two scenarios 
appropriately considered this seasonal difference by accounting for 
higher NOX emissions from those Florida units outside of the 
ozone season when these controls are projected not to operate in the 
``Transport Rule + BART elsewhere'' scenario. That is, our analysis 
assumed that post-combustion NOX controls would operate 
year-round under the ``Nationwide BART'' scenario and only during May 
through September in the ``Transport Rule + BART elsewhere'' scenario. 
When we analyzed the overall regional emissions reductions under the 
two scenarios, this did not affect our conclusion that the two-pronged 
test was satisfied. This outcome is very understandable because over a 
geographic region this small relative decrease during part of the year 
in emissions of NOX in the ``Transport Rule + BART 
elsewhere'' scenario compared to the ``Nationwide BART'' scenario has 
much less effect than the visibility improvement attributable to the 
very large relative decrease in SO2 emissions between the 
two scenarios.
---------------------------------------------------------------------------

    \15\ There are no coal-fired cyclone units located in any of the 
five ozone season-only states so the presumptive limits for cyclone 
units do not apply.
---------------------------------------------------------------------------

    Finally, the EPA notes that in a previous rulemaking that 
established that CAIR was ``better-than-BART'' it was also the case 
that some states subject to CAIR were subject only to ozone-season 
NOX budgets. In that rulemaking, our air quality analysis 
had similar results and our final rule established that the CAIR could 
be relied upon as an alternative to source-specific BART for those 
states.
4. Comments Asserting That the EPA Needs To Re-Do the Analysis
    Some commenters asserted that the EPA could not issue a final 
determination that the Transport Rule achieves greater reasonable 
progress than BART without conducting a new modeling analysis that 
would correct an error in the emissions for the ``Nationwide BART'' 
scenario and that would take into account certain adjustments that the 
EPA made to some state budgets under the Transport Rule after the air 
quality modeling runs were completed. Specifically, the commenters 
noted that the EPA acknowledged in the TSD for the proposal that the 
emissions analysis for the ``Nationwide BART'' scenario should have, 
but did not, apply presumptive BART controls on BART-eligible Gerald 
Gentleman Unit 2 and that the EPA acknowledged that the Transport Rule 
scenario in the analysis did not take into account budget revisions for 
a number of states that were published or proposed subsequent to the 
promulgation of the Transport Rule in August 2011. The commenters 
believe that because of these two acknowledged discrepancies in the 
emissions values used in the air quality modeling for the two 
scenarios, in combination with additional alleged errors, the EPA 
cannot issue a final determination unless and until a new analysis is 
conducted that takes these discrepancies into account.
    The EPA disagrees that a re-analysis of the two-pronged test using 
new air quality modeling is necessary. As noted in the TSD, the EPA 
does not believe that the omission of Gerald Gentleman Unit 2 from the 
BART-eligible inventory of 489 units would affect the outcome of our 
national analysis.\16\ This is because the emission reductions from a 
single EGU in the BART control scenario would not change the average 
visibility improvement across all affected Class I areas, which is the 
basis for our determination. The SO2 emission reduction in 
question (roughly 12,000 tons of SO2 per year) represents a 
relatively small emission change compared to the emissions from the 
area encompassed by Nebraska and the surrounding six states. Our 
response to other alleged errors in the BART inventory is presented in 
the Response to Comment document.
---------------------------------------------------------------------------

    \16\ Technical Support Document for Demonstration of the 
Transport Rule as a BART Alternative, Docket EPA-HQ-OAR-2011-0729. 
p. 10.
---------------------------------------------------------------------------

    With respect to revisions in state budgets, as we discussed in the 
TSD accompanying the December 30, 2011 proposal, the post-analysis 
increases in the state budgets under the Transport Rule had a 
relatively small impact on the emissions comparison between the two 
scenarios. 76 FR 8227. We note that in addition to the Transport Rule 
revisions we discussed in the proposed rule, there have been proposed 
subsequent adjustments to state budgets. On February 21, 2012, based on 
comments received on its previous rulemaking proposal, the EPA 
published revisions to 2012 and 2014 state budgets in Arkansas, 
Georgia, Indiana, Kansas, Louisiana, Mississippi, Missouri, New York, 
Nebraska, Ohio, Oklahoma, South Carolina and Texas, along with 
revisions to new unit set-asides in Arkansas, Louisiana and Missouri. 
77 FR 10342 and 77 FR 10350.\17\ While

[[Page 33652]]

individual state adjustments vary, overall, the total budget increase 
over the entire Transport Rule region is very small. The EPA believes 
it is a reasonable expectation that these adjustments would lead to 
very small impacts on annual and 24-hour PM2.5 
concentrations and, as a consequence, would not have a meaningful 
impact on the two-pronged test satisfied by the analysis conducted for 
this rule. A technical analysis of these adjustments may be found in 
the docket (Docket ID No. EPA-HQ-OAR-2011-0729: Sensitivity Analysis 
Accounting for Increases in Texas and Georgia Transport Rule State 
Budgets).
---------------------------------------------------------------------------

    \17\ These revisions were originally published in a direct final 
rule on February 21, 2012. 77 FR 10342. The EPA published a parallel 
proposal simultaneously with the direct final rule and indicated it 
would withdraw the direct final rule if it received adverse comment. 
The EPA received adverse comments and on May 16, 2012 published a 
notice withdrawing the direct final rule before it went into effect. 
77 FR 28785. As indicated in the parallel proposal, the EPA intends 
to take final action on the parallel proposal without providing an 
additional opportunity for public comment. 77 FR 10350.
---------------------------------------------------------------------------

    After reviewing the public comments on the proposed rule, the EPA 
is finalizing its finding that the Transport Rule trading programs will 
provide greater progress towards regional haze goals than source-
specific BART. This finding is based on the results of the two-pronged 
test for an alternative program. In this case, our analysis 
demonstrated that the trading programs of the Transport Rule do not 
cause degradation in any affected Class I area, thus passing the first 
prong of the test. The second prong of the test assesses whether the 
``Transport Rule + BART elsewhere'' scenario results in greater average 
visibility improvement at affected Class I areas compared to the 
``Nationwide BART'' scenario. The average visibility improvement of the 
``Transport Rule + BART elsewhere'' alternative was greater than 
``Nationwide BART'' on both the 20 percent best and 20 percent worst 
days, thus passing the second prong of the test. The determination that 
the Transport Rule trading programs will provide greater progress 
towards regional haze goals than source-specific BART applies only to 
EGUs in the Transport Rule trading programs and only for pollutants 
covered by the programs in each state. Accordingly, we are revising 40 
CFR 51.308(e)(4) by essentially replacing the name of the CAIR with the 
name of the Transport Rule.
    We are also finalizing our proposal that a state that chooses to 
meet the emissions reduction requirements of the Transport Rule by 
submitting a complete SIP revision that is approved as meeting the 
requirements of 40 CFR 52.38 and/or 52.39 also need not require BART-
eligible EGUs in the state to install, operate and maintain BART for 
the pollutants covered by such a trading program in the state.
    The results of the ``Transport Rule + BART elsewhere'' control 
scenario analysis demonstrate that the use of NOX controls 
during ozone season only, in the states for which this Transport Rule 
requirement applies, results in greater visibility improvement than 
source-specific BART for NOX. Thus, we are finalizing our 
proposal that a state in the Transport Rule region whose EGUs are 
subject to the requirements of the Transport Rule trading program only 
for ozone season NOX is allowed to rely on our determination 
that the Transport Rule makes greater reasonable progress than source-
specific BART for NOX. The states to which this aspect of 
our final rule applies are Arkansas, Florida, Louisiana, Mississippi 
and Oklahoma.

IV. Reasonably Attributable Visibility Impairment (RAVI)

A. What did the EPA propose?

    We proposed to preserve the language in the regional haze 
regulations at 40 CFR 51.308(e)(4) that allows states to include in 
their SIPs geographic enhancements to the trading program to address a 
situation where BART is required based on RAVI at a Class I area.\18\
---------------------------------------------------------------------------

    \18\ A geographic enhancement is a method, procedure, or process 
to allow a broad regional strategy, such as the Transport Rule cap-
and-trade program, to satisfy BART for reasonable attributable 
impairment. For example, it could consist of a methodology for 
adjusting allowance allocations at a source which is required to 
install BART controls.
---------------------------------------------------------------------------

B. Public Comments Related to RAVI

    We received comments recommending that we explicitly state that the 
Transport Rule as an alternative to BART does not replace the BART 
analysis that is required to address RAVI certification. The commenter 
contends that the BART determination for RAVI needs to address the 
impairment at the specific Class I area or areas, a requirement that is 
not addressed by the demonstration of regionally-averaged visibility 
improvement. Other commenters agreed that RAVI BART is critical to 
remedying existing impairment and must be implemented. This commenter 
also pointed out that RAVI BART is reactive as it requires FLM to 
voluntarily take action to address an existing problem. As such, RAVI 
BART will not result in proactive permitting to avoid degradation and 
it cannot be relied on to prevent hot spots. Furthermore, according to 
this commenter, the EPA in its finding that CAIR was better-than-BART 
explained that even under a BART alternative ``* * * CAA section 
169A(b)(2)'s trigger for BART based on impairment at any Class I area 
remains in effect, because a source may become subject to BART based on 
`reasonably attributable visibility impairment' at any area'' (citing 
40 CFR 51.302).
    The EPA proposed to leave unchanged the existing regulatory 
language regarding geographic enhancements. The purpose of this 
language is to allow a market-based system to accommodate actions taken 
under the RAVI provisions. The EPA first adopted such language in the 
1999 Regional Haze Rule, 64 FR 35757, and used it again in issuing 
regulations addressing our determination that CAIR provides for greater 
reasonable progress than BART, 70 FR 39156, and again in issuing 
regulations addressing trading program alternatives to BART in general, 
71 FR 60612, 60627. In light of the fact that our proposal did not 
request comment on the interplay of the RAVI requirements in 40 CFR 
51.302-306 with the requirements of the Regional Haze Rule, we are not 
adopting any clarifying interpretation at this time. As a result, this 
rulemaking alters neither the authority of a federal land manager to 
certify reasonably attributable visibility impairment nor the 
obligation of states (or EPA) to respond to a RAVI certification under 
40 CFR Part 51 Subpart P (Protection of Visibility). We expect at a 
later date to clarify the scope of the RAVI requirements through a rule 
amendment, general guidance, or action on a SIP or FIP in the context 
of a specific RAVI case.\19\ Whatever the form, we intend to provide an 
opportunity for public comment before applying a new interpretation.
---------------------------------------------------------------------------

    \19\ A RAVI certification has been made for the Sherbourne 
County Generating Station (Sherco) in Minnesota, by the Department 
of the Interior on October 21, 2009.
---------------------------------------------------------------------------

C. Final Action on RAVI

    In this final action we are preserving the language in the regional 
haze regulations at 40 CFR 51.308(e)(4) that allows states to include 
in their SIPs geographic enhancements to the trading program to 
accommodate a situation where BART is required based on RAVI at a Class 
I area. We are not adopting any clarifying interpretation of this 
language at this time, but we expect at a later date to clarify the 
scope of the RAVI requirements through a rule amendment, general 
guidance, or action on a SIP or FIP in the context of a specific RAVI 
case.

[[Page 33653]]

V. Limited Disapproval of Certain States' Regional Haze SIPs

A. What did the EPA propose?

    We proposed a limited disapproval of the regional haze SIPs that 
have been submitted by Alabama, Florida, Georgia, Indiana, Iowa, 
Louisiana, Michigan, Mississippi, Missouri, North Carolina, Ohio, 
Pennsylvania, South Carolina, and Texas. In separate notices, the EPA 
also has proposed a limited disapproval of the regional haze SIP 
submitted by Virginia that relied on CAIR (77 FR 3691), and has 
finalized a limited disapproval of the regional haze SIPs submitted by 
Kentucky (77 FR 19098), Tennessee (77 FR 24392), and West Virginia (77 
FR 16937). 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 strategy sufficient to achieve the 
state-adopted reasonable progress goals.
    We did not propose to disapprove the reasonable progress targets 
for 2018 that have been set by the states in their SIPs. The reasonable 
progress goals in the SIPs were set based on modeled projections of 
future conditions that were developed using the best available 
information at the time the analysis was done. Given the requirement in 
40 CFR 51.308(d)(1)(vi) that states must take into account the 
visibility improvement that is expected to result from the 
implementation of other Clean Air Act requirements, states set their 
reasonable progress goals based, in part, on the emission reductions 
expected to be achieved by CAIR. As CAIR has now been remanded by the 
D.C. Circuit, the assumptions underlying the development of the 
reasonable progress targets have changed; however, because the overall 
EGU emission reductions from the Transport Rule are larger than the EGU 
emission reductions that would have been achieved by CAIR, we expect 
the Transport Rule to provide similar or greater benefits than CAIR. In 
addition, unlike the enforceable emissions limitations and other 
enforceable measures in the long-term strategy, see 64 FR 35733, 
reasonable progress goals are not enforceable measures. Given these 
considerations, we concluded not to propose disapproval of the 
reasonable progress goals in any of the regional haze SIPs that relied 
on CAIR. We noted our intent to act on the remaining elements of the 
SIP for each state in a separate notice.

B. Public Comments Related to Limited Disapprovals

    Several commenters seem to have interpreted our statement that the 
EPA was not proposing to disapprove the reasonable progress goals set 
by affected states to mean that the EPA had proposed to determine that 
these reasonable progress goals meet the requirements of the Regional 
Haze Rule. The commenters stated that the EPA cannot reasonably 
conclude that the Transport Rule achieves reasonable progress. As noted 
in the proposal, we intend to evaluate the reasonable progress goals 
for each state when taking action on the remaining elements of their 
regional haze SIPs. As explained above, we do not consider the remand 
of CAIR to provide a basis for disapproving the reasonable progress 
goals set by the states. That determination, however, does not indicate 
that we intend to approve the targets set by the states without any 
further consideration. In addition, while we have concluded that the 
Transport Rule achieves greater reasonable progress than BART, we have 
not determined, as the commenters suggest, that the Transport Rule 
alone achieves reasonable progress towards the natural visibility goal.

C. Final Action on Limited Disapprovals

    This action includes a final limited disapproval of the regional 
haze SIPs submitted by Alabama, Georgia, Indiana, Iowa, Louisiana, 
Michigan, Mississippi, Missouri, North Carolina, Ohio, Pennsylvania, 
South Carolina, Virginia, and Texas. We are not finalizing the limited 
disapproval for Florida at this time because the state has requested 
additional time to modify its SIP to address the change in 
applicability of the Transport Rule to Florida in the final rule 
published on August 8, 2011, (76 FR 48208) and is actively preparing 
SIP revisions.\20\ The EPA included Florida in the proposed Transport 
Rule for coverage under both the SO2 and NOX 
trading programs, but removed Florida from the SO2 trading 
program in the final Transport Rule. Florida was unaware of this 
modification until publication of the final rule. The EPA has decided 
to postpone action on Florida's regional haze SIP given this 
extenuating circumstance, Florida's request for additional time to 
modify its SIP to address the change in coverage under the Transport 
Rule, and Florida's continued progress toward submitting a SIP 
revision.
---------------------------------------------------------------------------

    \20\ On May 15, 2012, the EPA proposed limited approval of three 
revisions to the Florida SIP, including BART determinations for five 
facilities.
---------------------------------------------------------------------------

VI. FIPs

A. What did the EPA propose?

    We proposed FIPs to replace reliance on CAIR requirements with 
reliance on the trading programs of the Transport Rule as an 
alternative to BART for SO2 and NOX emissions 
from EGUs in the following states' regional haze SIPs: Alabama, 
Georgia, Indiana, Iowa, Kentucky, Michigan, Missouri, North Carolina, 
Ohio, Pennsylvania, South Carolina, Tennessee, Texas, Virginia and West 
Virginia. We proposed FIPs to replace reliance on CAIR requirements 
with reliance on the Transport Rule as an alternative to BART for 
NOX emissions from EGUs in the following states' regional 
haze SIPs: Florida, Louisiana, and Mississippi.
    We proposed that these limited FIPs would satisfy the BART 
requirement and be a part of satisfying the requirement for a long-term 
strategy sufficient to achieve the state-adopted reasonable progress 
goals. The FIPs would apply only to EGUs in the affected states and 
only to pollutants covered by the Transport Rule program in those 
states. The proposed FIPs would not alter states' reasonable progress 
goals or replace these goals.

B. Public Comments on Proposed FIPs

    Similar to the comments received regarding our proposed limited 
disapprovals, numerous commenters argued that the EPA should not 
finalize FIPs because, according to the commenters, we cannot rely on 
the Transport Rule because of the current stay of that rule. Other 
commenters took the position that we should fully approve the regional 
haze SIPs that relied on CAIR to satisfy certain regional haze 
requirements and that our proposed FIPs substituting the Transport Rule 
as an alternative to source-specific BART in regional haze SIPs are 
unnecessary.
    As explained above in section II.B.2, we do not agree that the EPA 
cannot rely on the Transport Rule because of the temporary stay imposed 
by the D.C. Circuit. With respect to reliance on CAIR, as explained in 
section II.A.3, CAIR has been remanded and only remains in place 
temporarily; consequently, we cannot fully approve those regional haze 
SIP revisions that have relied on the now-temporary reductions from 
CAIR. Although CAIR is currently in place, as a result of the December 
30, 2011, Order from the U.S. Court of Appeals for the D.C. Circuit 
staying the Transport Rule, this does not

[[Page 33654]]

affect the earlier court ruling remanding CAIR to the EPA. A number of 
states objected to the EPA's proposed FIP as these states did not 
receive a finding of failure to timely submit a regional haze SIP. 
These states requested the allowable time to revise and resubmit their 
SIP. Other states which also did not receive a finding of failure to 
timely submit a regional haze SIP did not object to the EPA's proposed 
FIP. As explained in section VI.C, we have responded to this comment by 
granting additional time to those states that prefer to revise and 
resubmit their SIP to the EPA for approval and did not receive a 
finding of failure to timely submit their regional haze SIP.

C. Final Action on FIPs

    In this action, the EPA is finalizing FIPs to replace reliance on 
CAIR with reliance on the Transport Rule as an alternative to BART in 
regional haze SIPs of Georgia, Indiana, Iowa, Kentucky, Michigan, 
Missouri, Ohio, Pennsylvania, South Carolina, Tennessee, Virginia, and 
West Virginia. Regional haze SIPs were due in December 2007. Under the 
CAA, the EPA is required to promulgate a FIP within 2 years after 
finding that a state has failed to make a required submission or after 
disapproving a SIP in whole or in part, unless the state first adopts 
and we have fully approved a SIP. CAA section 110(c)(1). We made a 
finding on January 15, 2009, that Georgia, Indiana, Michigan, Ohio, 
Pennsylvania, Texas, and Virginia had failed to timely submit a 
regional haze SIP. We are finalizing the FIPs for Iowa, Missouri, South 
Carolina, Tennessee, and West Virginia, even though we are not required 
by the CAA to do so at this time, because of our understanding based on 
communications with state officials that this action on our part is 
their preference. Our adoption of these FIPs at this time avoids the 
near-term need for additional administrative steps on the part of these 
states. That is, these states do not have to take any further action on 
their regional haze SIPs until SIP revisions are due in 2018. However, 
at any time, states may, and are encouraged to submit a revision to 
their regional haze SIP incorporating the requirements of the Transport 
Rule. At that time, we will withdraw the FIP being finalized in this 
action.
    We are not finalizing FIPs, as proposed, for Alabama, Florida, 
Louisiana, Mississippi, or North Carolina. Rather than a FIP, Alabama, 
Louisiana, Mississippi, and North Carolina have requested additional 
time to correct the deficiencies in their SIPs and submit a SIP 
revision. As these states did not receive a finding of failure to 
submit a regional haze SIP, the EPA is not required to promulgate a FIP 
at this time. The EPA will be required to issue a FIP for each state 
that does not submit an approvable SIP revision that corrects the 
deficiencies related to reliance on CAIR in time for the EPA to review 
and approve it within 2 years of this final limited disapproval action. 
We are not finalizing a FIP, as proposed, for Texas in order to allow 
more time for the EPA to assess the current Texas SIP submittal. 
Additional time is required due to the variety and number of BART-
eligible sources and the complexity of the SIP. The EPA is also 
deferring action on the proposed FIP for Florida for the reasons 
discussed in section V.C.

VII. Regulatory Text

A. What did the EPA propose?

    Based on our finding that the ``Transport Rule + BART elsewhere'' 
control scenario passes the two-pronged test, we proposed to determine 
that the Transport Rule trading program will provide greater progress 
towards Regional Haze goals than source-specific BART. We noted that 
the proposed determination would apply only to EGUs in the Transport 
Rule trading programs and only for the pollutants covered by the 
programs in each state. Accordingly, we proposed to revise 40 CFR 
51.308(e)(4) by essentially replacing the name of CAIR with the name of 
the Transport Rule.
    We also proposed that a state that chooses to meet the emission 
reduction requirements of the Transport Rule by submitting a complete 
SIP revision substantively identical to the provisions of the EPA 
trading program that is approved as meeting the requirements of Sec.  
52.38 and/or Sec.  52.39 also need not require BART-eligible EGUs in 
the state to install, operate, and maintain BART for the pollutants 
covered by such a trading program in the state.

B. Clarification of Final Regulatory Text

    A number of the states for which we proposed a FIP had previously 
failed to either submit a visibility SIP or had failed to submit a SIP 
that could be fully approved under the visibility regulations issued in 
1980. See 45 FR 80084 (December 2, 1980). The final regulatory text 
takes account of this and is not intended to change the findings that 
have been made in the past with respect to the relevant states' 
compliance with the requirements of visibility regulations found at 40 
CFR 51.302-51.307.
    The regulatory text also accounts for final limited approval of the 
regional haze SIPs of Indiana, Ohio and Virginia that the EPA is 
finalizing separately, on or about the same day as this action. 
Including regulatory text that accounts for the final limited approval 
in this action avoids the need for additional overlapping revisions to 
the CFR for these states. To ensure that the relevant regulatory text 
is appropriately revised, we are amending certain regulatory provisions 
for these states in this action only.\21\
---------------------------------------------------------------------------

    \21\ The regulatory text at issue addressing limited approvals 
and limited disapprovals can be found at 40 CFR 52.791(a), 40 CFR 
52.1886(a) and 40 CFR 52.2452(d).
---------------------------------------------------------------------------

    We are also making conforming changes to the regulatory text for 
the regional haze SIPs of Kentucky, Tennessee and West Virginia as the 
EPA has previously promulgated a final limited approval and final 
limited disapproval of these SIPs. For Kentucky, in this action we are 
making conforming changes to the regulatory text in 40 CFR 52.936(a) 
regarding the limited approval and limited disapproval of Kentucky's 
SIP. These conforming changes do not affect the substance of the EPA's 
final action on Kentucky on March 30, 2012 (77 FR 19098). For 
Tennessee, in this action we are making conforming changes to the 
regulatory text in 40 CFR 52.2234(a) regarding the limited approval and 
limited disapproval of Tennessee's SIP. These conforming changes do not 
affect the substance of EPA's final action on April 24, 2012 (77 FR 
24392). For West Virginia, in this action we are making conforming 
changes to the regulatory text in 40 CFR 52.2533(d) regarding the 
limited approval and limited disapproval of West Virginia's SIP. These 
conforming changes do not affect the substance of the EPA's final 
action on West Virginia on March 23, 2012 (77 FR 16937).

VIII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is a ``significant regulatory action'' because some may view it 
as raising novel legal or policy issues arising out of legal mandates, 
the President's priorities, or the principles set forth in the 
Executive Order. Accordingly, the EPA submitted this action to the 
Office of Management and Budget (OMB) for review under Executive Orders 
12866 and 13563 (76 FR 3821, January 21, 2011) and any changes made in 
response to OMB recommendations have been

[[Page 33655]]

documented in the docket for this action.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Burden is defined at 5 CFR 1320.3(b). This action does not include or 
require any information collection.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of this rule on small 
entities, small entity is defined as: (1) A small business that is a 
small industrial entity as defined by the U.S. Small Business 
Administration's (SBA) regulations at 13 CFR 121.201; (2) A 
governmental jurisdiction that is a government of a city, county, town, 
school district, or special district with a population of less than 
50,000; and (3) A small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of this final rule on small 
entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This final 
rule will not impose any requirements on small entities. Rather, this 
rule would allow states to avoid regulating EGUs in new ways based on 
the current requirements of the Transport Rule and as such does not 
impose any new requirements on small entities.

D. Unfunded Mandates Reform Act

    This action contains no federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, 2 U.S.C. 
1531-1538) for state, local, or tribal governments or the private 
sector. The action imposes no enforceable duty on any state, local, or 
tribal governments or the private sector. Therefore, this action is not 
subject to the requirements of sections 202 or 205 of the UMRA.
    This action is also not subject to the requirements of section 203 
of UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. This action merely 
interprets the statutory requirements that apply to states in preparing 
their SIPs.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. This action does not impose any new 
mandates on state or local governments. Thus, Executive Order 13132 
does not apply to this rule. In the spirit of Executive Order 13132 and 
consistent with EPA policy to promote communications between the EPA 
and state and local governments, the EPA specifically solicited 
comments on the proposed rule from state and local officials. We 
received comments from seven states. These comments are addressed in 
the final action and in the Response to Comment document.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This rule does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). The rule does 
not have a substantial direct effect on one or more Indian tribes, 
since there are no BART-eligible EGU sources on tribal lands in the 
Transport Rule region. In addition, the CAA does not provide for the 
inclusion of any tribal areas as mandatory Class I federal areas; thus, 
tribal areas are not subject to the requirements of the Regional Haze 
Rule. Furthermore, this rule does not affect the relationship or 
distribution of power and responsibilities between the federal 
government and Indian tribes. Thus, Executive Order 13175 does not 
apply to this action. The EPA specifically solicited additional comment 
on the proposed action from tribal officials and we received none.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    The EPA interprets Executive Order 13045 (62 FR 19885, April 23, 
1997) as applying to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Order has the potential to influence the regulation. This action is 
not subject to Executive Order 13045 because it does not establish an 
environmental standard intended to mitigate health or safety risks.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not a ``significant energy action'' as defined in 
Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. This action does not establish 
requirements that directly affect the general public and private 
sectors. Rather, this rule will allow states to avoid regulating EGUs 
in new ways based on the current requirements of the Transport Rule, 
and thus may avoid adverse effects that conceivably might result from 
such additional regulation of EGUs by states.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d), (15 U.S.C. 
272 note) directs the EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs the 
EPA to provide Congress, through OMB, explanations when the agency 
decides not to use available and applicable voluntary consensus 
standards.
    This action does not involve technical standards. Therefore, the 
EPA did not consider the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (EO) (59 FR 7629, February 16, 1994) 
establishes federal executive policy on environmental justice. Its main 
provision directs federal agencies, to the greatest extent practicable 
and permitted by law, to make environmental justice part of their 
mission by identifying and addressing, as appropriate, 
disproportionately high and adverse human health or environmental 
effects of their programs, policies, and activities on minority

[[Page 33656]]

populations and low-income populations in the United States.
    The EPA has concluded that it is not practicable to determine 
whether there would be disproportionately high and adverse human health 
or environmental effects on minority and/or low income populations from 
this final rule. The PM2.5 air quality improvements that 
might be expected under implementation of source-specific BART may 
differ from the Transport Rule in terms of the emission reductions 
required at any given source. However, our analysis of the Transport 
Rule suggests that the regional Transport Rule approach provides 
widespread health benefits especially among populations most vulnerable 
to PM2.5 impacts. This analysis is presented in detail in 
the Regulatory Impact Analysis for the Transport Rule which is 
available in the Transport Rule docket EPA-HQ-OAR-2009-0491 and from 
the main EPA Web page for the Transport Rule available at www.epa.gov/airtransport.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. The EPA will submit a report containing this rule and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A Major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective August 6, 2012.

IX. Statutory Authority

    Statutory authority for this rule comes from sections 169A and 169B 
of the CAA (42 U.S.C. 7491 and 7492). These sections require the EPA to 
issue regulations that will require states to revise their SIPs to 
ensure that reasonable progress is made toward the national visibility 
goals specified in section 169A.

List of Subjects

40 CFR Part 51

    Administrative practice and procedure, Air pollution control, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
oxides, Ozone, Particulate matter, Regional haze, Reporting and 
recordkeeping requirements, Sulfur dioxide.

40 CFR Part 52

    Administrative practice and procedure, Air pollution control, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
oxides, Ozone, Particulate matter, Regional haze, Reporting and 
recordkeeping requirements, Sulfur dioxide.

    Dated: May 30, 2012.
Lisa P. Jackson,
Administrator.

    For the reasons set forth in the preamble, chapter I of title 40 of 
the Code of Federal Regulations is amended as follows:

PART 51--[AMENDED]

0
1. The authority citation for part 51 continues to read as follows:

    Authority:  23 U.S.C. 101; 42 U.S.C. 7401-7671q.


0
2. Section 51.308 is amended by revising paragraph (e)(4) to read as 
follows:


Sec.  51.308  Regional haze program requirements.

* * * * *
    (e) * * *
    (4) A State subject to a trading program established in accordance 
with Sec.  52.38 or Sec.  52.39 under a Transport Rule Federal 
Implementation Plan need not require BART-eligible fossil fuel-fired 
steam electric plants in the State to install, operate, and maintain 
BART for the pollutant covered by such trading program in the State. A 
State that chooses to meet the emission reduction requirements of the 
Transport Rule by submitting a SIP revision that establishes a trading 
program and is approved as meeting the requirements of Sec.  52.38 or 
Sec.  52.39 also need not require BART-eligible fossil fuel-fired steam 
electric plants in the State to install, operate, and maintain BART for 
the pollutant covered by such trading program in the State. A State may 
adopt provisions, consistent with the requirements applicable to the 
State for a trading program established in accordance with Sec.  52.38 
or Sec.  52.39 under the Transport Rule Federal Implementation Plan or 
established under a SIP revision that is approved as meeting the 
requirements of Sec.  52.38 or Sec.  52.39, for a geographic 
enhancement to the program to address the requirement under Sec.  
51.302(c) related to BART for reasonably attributable impairment from 
the pollutant covered by such trading program in that State.
* * * * *

PART 52--[AMENDED]

0
3. The authority citation for part 52 continues to read as follows:

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

Subpart B--Alabama

0
4. Section 52.61 is amended by revising paragraph (a) and adding a new 
paragraph (c) to read as follows:


Sec.  52.61  Visibility protection.

    (a) Reasonably Attributable Visibility Impairment. 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 
51.306 for protection of visibility in mandatory Class I Federal areas.
* * * * *
    (c) Regional Haze. The requirements of section 169A of the Clean 
Air Act are not met because the regional haze plan submitted by Alabama 
on July 15, 2008, does not include fully approvable measures for 
meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) with 
respect to emissions of NOX and SO2 from electric 
generating units. EPA has given limited disapproval to the plan 
provisions addressing these requirements.

Subpart L--Georgia

0
5. Section 52.580 is added to read as follows:


Sec.  52.580  Visibility protection.

    (a) Regional Haze. The requirements of section 169A of the Clean 
Air Act are not met because the regional haze plan submitted by Georgia 
on February 11, 2010, and supplemented on November 19, 2010, does not 
include fully approvable measures for meeting the requirements of 40 
CFR 51.308(d)(3) and 51.308(e) with respect to emissions of 
NOX and SO2 from electric generating units. EPA 
has given limited disapproval to the plan provisions addressing these 
requirements.
    (b) Measures Addressing Limited Disapproval Associated with NOX. 
The deficiencies associated with NOX identified in EPA's 
limited disapproval of the regional haze plan submitted by Georgia on 
February 11, 2010, and supplemented on November 19, 2010, are satisfied 
by Sec.  52.584.
    (c) Measures Addressing Limited Disapproval Associated with SO2. 
The deficiencies associated with SO2

[[Page 33657]]

identified in EPA's limited disapproval of the regional haze plan 
submitted by Georgia on February 11, 2010, and supplemented on November 
19, 2010, are satisfied by Sec.  52.585.

Subpart P--Indiana

0
6. Section 52.791 is added to read as follows:


Sec.  52.791  Visibility protection.

    (a) Regional Haze. The requirements of section 169A of the Clean 
Air Act are not met because the regional haze plan submitted by Indiana 
on January 14, 2011, and supplemented on March 10, 2011, does not 
include fully approvable measures for meeting the requirements of 40 
CFR 51.308(d)(3) and 51.308(e) with respect to emissions of 
NOX and SO2 from electric generating units. EPA 
has given limited approval and limited disapproval to the plan 
provisions addressing these requirements.
    (b) Measures Addressing Limited Disapproval Associated with NOX. 
The deficiencies associated with NOX identified in EPA's 
limited disapproval of the regional haze plan submitted by Indiana on 
January 14, 2011, and supplemented on March 10, 2011, are satisfied by 
Sec.  52.789.
    (c) Measures Addressing Limited Disapproval Associated with SO2. 
The deficiencies associated with SO2 dentified in EPA's 
limited disapproval of the regional haze plan submitted by Indiana on 
January 14, 2011 and supplemented on March 10, 2011 are satisfied by 
Sec.  52.790.

Subpart Q--Iowa

0
7. Section 52.842 is added to read as follows:


Sec.  52.842  Visibility protection.

    (a) Regional Haze. The requirements of section 169A of the Clean 
Air Act are not met because the regional haze plan submitted by Iowa on 
March 25, 2008, does not include fully approvable measures for meeting 
the requirements of 40 CFR 51.308(d)(3) and 51.308(e) with respect to 
emissions of NOX and SO2 from electric generating 
units. EPA has given limited disapproval to the plan provisions 
addressing these requirements.
    (b) Measures Addressing Limited Disapproval Associated with NOX. 
The deficiencies associated with NOX identified in EPA's 
limited disapproval of the regional haze plan submitted by Iowa on 
March 25, 2008, are satisfied by Sec.  52.840.
    (c) Measures Addressing Limited Disapproval Associated with SO2. 
The deficiencies associated with SO2 identified in EPA's 
limited disapproval of the regional haze plan submitted by Iowa on 
March 25, 2008, are satisfied by Sec.  52.841.

Subpart S--Kentucky

0
8. Section 52.936 is revised to read as follows:


Sec.  52.936  Visibility protection.

    (a) Regional Haze. The requirements of section 169A of the Clean 
Air Act are not met because the regional haze plan submitted by 
Kentucky on June 25, 2008, and amended on May 28, 2010, does not 
include fully approvable measures for meeting the requirements of 40 
CFR 51.308(d)(3) and 51.308(e) with respect to emissions of 
NOX and SO2 from electric generating units. EPA 
has given limited approval and limited disapproval to the plan 
provisions addressing these requirements.
    (b) Measures Addressing Limited Disapproval Associated with NOX. 
The deficiencies associated with NOX identified in EPA's 
limited disapproval of the regional haze plan submitted by Kentucky on 
June 25, 2008, and amended on May 28, 2010, are satisfied by Sec.  
52.940.
    (c) Measures Addressing Limited Disapproval Associated with SO2. 
The deficiencies associated with SO2 identified in EPA's 
limited disapproval of the regional haze plan submitted by Kentucky on 
June 25, 2008, and amended on May 28, 2010, are satisfied by Sec.  
52.941.

Subpart T--Louisiana

0
9. Section 52.985 is added to read as follows:


Sec.  52.985  Visibility protection.

    (a) Regional Haze. The requirements of section 169A of the Clean 
Air Act are not met because the regional haze plan submitted by 
Louisiana on June 13, 2008, does not include fully approvable measures 
for meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) with 
respect to emissions of NOX and SO2 from electric 
generating units. EPA has given limited disapproval to the plan 
provisions addressing these requirements.
    (b) [Reserved]

Subpart X--Michigan

0
10. Section 52.1183 is amended by revising paragraph (a) and adding new 
paragraphs (d), (e), and (f) to read as follows:


Sec.  52.1183  Visibility protection.

    (a) Reasonably Attributable Visibility Impairment. 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 
51.302, 51.305, and 51.307 for protection of visibility in mandatory 
Class I Federal areas.
* * * * *
    (d) Regional Haze. The requirements of section 169A of the Clean 
Air Act are not met because the regional haze plan submitted by 
Michigan on November 5, 2010, does not include fully approvable 
measures for meeting the requirements of 40 CFR 51.308(d)(3) and 
51.308(e) with respect to emissions of NOX and 
SO2 from electric generating units. EPA has given limited 
approval and limited disapproval to the plan provisions addressing 
these requirements.
    (e) Measures Addressing Limited Disapproval Associated With NOX. 
The deficiencies associated with NOX identified in EPA's 
limited disapproval of the regional haze plan submitted by Michigan on 
November 5, 2010, are satisfied by Sec.  52.1186.
    (f) Measures Addressing Limited Disapproval Associated With SO2. 
The deficiencies associated with SO2 identified in EPA's 
limited disapproval of the regional haze plan submitted by Michigan on 
November 5, 2010, are satisfied by Sec.  52.1187.

Subpart Z--Mississippi

0
11. Section 52.1279 is added to read as follows:


Sec.  52.1279  Visibility protection.

    (a) Regional Haze. The requirements of section 169A of the Clean 
Air Act are not met because the regional haze plan submitted by 
Mississippi on September 22, 2008, and supplemented on May 9, 2011, 
does not include fully approvable measures for meeting the requirements 
of 40 CFR 51.308(d)(3) and 51.308(e) with respect to emissions of 
NOX and SO2 from electric generating units. EPA 
has given limited disapproval to the plan provisions addressing these 
requirements.
    (b) [Reserved]

Subpart AA--Missouri

0
12. Section 52.1339 is amended by revising paragraph (a) and adding new 
paragraphs (c), (d), and (e) to read as follows:


Sec.  52.1339  Visibility protection.

    (a) Reasonably Attributable Visibility Impairment. 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

[[Page 33658]]

51.306 for protection of visibility in mandatory Class I Federal areas.
* * * * *
    (c) Regional Haze. The requirements of section 169A of the Clean 
Air Act are not met because the regional haze plan submitted by 
Missouri on August 5, 2009, and supplemented on January 30, 2012, does 
not include fully approvable measures for meeting the requirements of 
40 CFR 51.308(d)(3) and 51.308(e) with respect to emissions of 
NOX and SO2 from electric generating units. EPA 
has given limited disapproval to the plan provisions addressing these 
requirements.
    (d) Measures Addressing Limited Disapproval Associated With NOX. 
The deficiencies associated with NOX identified in EPA's 
limited disapproval of the regional haze plan submitted by Missouri on 
August 5, 2009, and supplemented on January 30, 2012, are satisfied by 
Sec.  52.1326.
    (e) Measures Addressing Limited Disapproval Associated With SO2. 
The deficiencies associated with SO2 identified in EPA's 
limited disapproval of the regional haze plan submitted by Missouri on 
August 5, 2009, and supplemented on January 30, 2012, are satisfied by 
Sec.  52.1327.

Subpart II--North Carolina

0
13. Section 52.1776 is added to read as follows:


Sec.  52.1177  Visibility protection.

    (a) Regional Haze. The requirements of section 169A of the Clean 
Air Act are not met because the regional haze plan submitted by North 
Carolina on December 17, 2007, does not include fully approvable 
measures for meeting the requirements of 40 CFR 51.308(d)(3) and 
51.308(e) with respect to emissions of NOX and 
SO2 from electric generating units. EPA has given limited 
disapproval to the plan provisions addressing these requirements.
    (b) [Reserved]

Subpart KK--Ohio

0
14. Section 52.1886 is added to read as follows:


Sec.  52.1886  Visibility protection.

    (a) Regional Haze. The requirements of section 169A of the Clean 
Air Act are not met because the regional haze plan submitted by Ohio on 
March 11, 2011, does not include fully approvable measures for meeting 
the requirements of 40 CFR 51.308(d)(3) and 51.308(e) with respect to 
emissions of NOX and SO2 from electric generating 
units. EPA has given limited approval and limited disapproval to the 
plan provisions addressing these requirements.
    (b) Measures Addressing Limited Disapproval Associated With NOX. 
The deficiencies associated with NOX identified in EPA's 
limited disapproval of the regional haze plan submitted by Ohio on 
March 11, 2011, are satisfied Sec.  52.1882.
    (c) Measures Addressing Limited Disapproval Associated With SO2. 
The deficiencies associated with SO2 identified in EPA's 
limited disapproval of the regional haze plan submitted by Ohio on 
March 11, 2011, are satisfied by Sec.  52.1883.

Subpart NN--Pennsylvania

0
15. Section 52.2042 is added to read as follows:


Sec.  52.2042  Visibility protection.

    (a) Regional Haze. The requirements of section 169A of the Clean 
Air Act are not met because the regional haze plan submitted by 
Pennsylvania on December 20, 2010, does not include fully approvable 
measures for meeting the requirements of 40 CFR 51.308(d)(3) and 
51.308(e) with respect to emissions of NOX and 
SO2 from electric generating units. EPA has given limited 
approval and limited disapproval to the plan provisions addressing 
these requirements.
    (b) Measures Addressing Limited Disapproval Associated With NOX. 
The deficiencies associated with NOX identified in EPA's 
limited disapproval of the regional haze plan submitted by Pennsylvania 
on December 20, 2010, are satisfied Sec.  52.2040.
    (c) Measures Addressing Limited Disapproval Associated With SO2. 
The deficiencies associated with SO2 identified in EPA's 
limited disapproval of the regional haze plan submitted by Pennsylvania 
on December 20, 2010, are satisfied by Sec.  52.2041.

Subpart PP--South Carolina

0
16. Section 52.2132 is amended by revising paragraph (a) and adding new 
paragraphs (d), (e), and (f) to read as follows:


Sec.  52.2132  Visibility protection.

    (a) Reasonably Attributable Visibility Impairment. 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 
51.305 and 51.306 for protection of visibility in mandatory Class I 
Federal areas.
* * * * *
    (d) Regional Haze. The requirements of section 169A of the Clean 
Air Act are not met because the regional haze plan submitted by South 
Carolina on December 17, 2007, does not include fully approvable 
measures for meeting the requirements of 40 CFR 51.308(d)(3) and 
51.308(e) with respect to emissions of NOX and 
SO2 from electric generating units. EPA has given limited 
disapproval to the plan provisions addressing these requirements.
    (e) Measures Addressing Limited Disapproval Associated with NOX. 
The deficiencies associated with NOX identified in EPA's 
limited disapproval of the regional haze plan submitted by South 
Carolina on December 17, 2007, are satisfied by Sec.  52.2140.
    (f) Measures Addressing Limited Disapproval Associated with SO2. 
The deficiencies associated with SO2 identified in EPA's 
limited disapproval of the regional haze plan submitted by South 
Carolina on December 17, 2007, are satisfied by Sec.  52.2141.

Subpart RR--Tennessee

0
17. Section 52.2234 is amended by revising paragraph (a) and adding new 
paragraphs (c) and (d) to read as follows:


Sec.  52.2234  Visibility protection.

    (a) Regional Haze. The requirements of section 169A of the Clean 
Air Act are not met because the regional haze plan submitted by 
Tennessee on April 4, 2008, does not include fully approvable measures 
for meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) with 
respect to emissions of NOX and SO2 from electric 
generating units. EPA has given limited approval and limited 
disapproval to the plan provisions addressing these requirements.
* * * * *
    (c) Measures Addressing Limited Disapproval Associated with NOX. 
The deficiencies associated with NOX identified in EPA's 
limited disapproval of the regional haze plan submitted by Tennessee on 
April 4, 2008, are satisfied by Sec.  52.2240.
    (d) Measures Addressing Limited Disapproval Associated with SO2. 
The deficiencies associated with SO2 identified in EPA's 
limited disapproval of the regional haze plan submitted by Tennessee on 
April 4, 2008, are satisfied by Sec.  52.2241.

Subpart SS--Texas

0
18. Section 52.2304 is amended by revising paragraph (a) and adding new 
paragraph (c) to read as follows:

[[Page 33659]]

Sec.  52.2304  Visibility protection.

    (a) Reasonably Attributable Visibility Impairment. The requirements 
of section 169A of the Clean Air Act are not met because the plan does 
not include fully approvable measures for meeting the requirements of 
40 CFR 51.305 for protection of visibility in mandatory Class I Federal 
areas.
* * * * *
    (c) Regional Haze. The requirements of section 169A of the Clean 
Air Act are not met because the regional haze plan submitted by Texas 
on March 31, 2009, does not include fully approvable measures for 
meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) with 
respect to emissions of NOX and SO2 from electric 
generating units. EPA has given limited disapproval to the plan 
provisions addressing these requirements.

Subpart VV--Virginia

0
19. Section 52.2452 is amended by revising paragraph (a) and adding new 
paragraphs (d), (e), and (f) to read as follows:


Sec.  52.2452  Visibility protection.

    (a) Reasonably Attributable Visibility Impairment. 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 
51.305 and 51.306 for protection of visibility in mandatory Class I 
Federal areas.
* * * * *
    (d) Regional Haze. The requirements of section 169A of the Clean 
Air Act are not met because the regional haze plan submitted by 
Virginia on July 17, 2008, March 6, 2009, January 14, 2010, October 4, 
2010, November 19, 2010, and May 6, 2011, does not include fully 
approvable measures for meeting the requirements of 40 CFR 51.308(d)(3) 
and 51.308(e) with respect to emissions of NOX and 
SO2 from electric generating units. EPA has given limited 
approval and limited disapproval to the plan provisions addressing 
these requirements.
    (e) Measures Addressing Limited Disapproval Associated with NOX. 
The deficiencies associated with NOX identified in EPA's 
limited disapproval of the regional haze plan submitted by Virginia on 
July 17, 2008, March 6, 2009, January 14, 2010, October 4, 2010, 
November 19, 2010, and May 6, 2011, are satisfied by Sec.  52.2440.
    (f) Measures Addressing Limited Disapproval Associated with SO2. 
The deficiencies associated with SO2 identified in EPA's 
limited disapproval of the regional haze plan submitted by Virginia on 
July 17, 2008, March 6, 2009, January 14, 2010, October 4, 2010, 
November 19, 2010, and May 6, 2011, are satisfied by Sec.  52.2441.

Subpart XX--West Virginia

0
20. Section 52.2533 is amended by revising paragraphs (a) and (d) and 
adding new paragraphs (e) and (f) to read as follows:


Sec.  52.2533  Visibility protection.

    (a) Reasonably Attributable Visibility Impairment. 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 
51.305, 51.306, and 51.307 for protection of visibility in mandatory 
Class I Federal areas.
* * * * *
    (d) Regional Haze. The requirements of section 169A of the Clean 
Air Act are not met because the regional haze plan submitted by West 
Virginia on June 18, 2008, does not include fully approvable measures 
for meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) with 
respect to emissions of NOX and SO2 from electric 
generating units. EPA has given limited approval and limited 
disapproval to the plan provisions addressing these requirements.
    (e) Measures Addressing Limited Disapproval Associated with NOX. 
The deficiencies associated with NOX identified in EPA's 
limited disapproval of the regional haze plan submitted by West 
Virginia on June 18, 2008, are satisfied by Sec.  52.2540.
    (f) Measures Addressing Limited Disapproval Associated with SO2. 
The deficiencies associated with SO2 identified in EPA's 
limited disapproval of the regional haze plan submitted by West 
Virginia on June 18, 2008, are satisfied by Sec.  52.2541.

[FR Doc. 2012-13693 Filed 6-6-12; 8:45 am]
BILLING CODE 6560-50-P