[Federal Register Volume 77, Number 130 (Friday, July 6, 2012)]
[Rules and Regulations]
[Pages 40150-40169]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-15192]
[[Page 40149]]
Vol. 77
Friday,
No. 130
July 6, 2012
Part II
Environmental Protection Agency
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40 CFR Part 52
Approval, Disapproval and Promulgation of Implementation Plans; State
of Nebraska; Regional Haze State Implementation Plan; Federal
Implementation Plan for Best Available Retrofit Technology
Determination; Final Rule
Federal Register / Vol. 77 , No. 130 / Friday, July 6, 2012 / Rules
and Regulations
[[Page 40150]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R07-OAR-2012-0158; FRL-9689-2]
Approval, Disapproval and Promulgation of Implementation Plans;
State of Nebraska; Regional Haze State Implementation Plan; Federal
Implementation Plan for Best Available Retrofit Technology
Determination
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is finalizing a partial approval and partial disapproval
of a revision to the State Implementation Plan (SIP) for Nebraska,
submitted by the State of Nebraska through the Nebraska Department of
Environmental Quality (NDEQ) on July 13, 2011, that is intended to
address regional haze for the first implementation period. This
revision is intended to address the requirements of the Clean Air Act
(CAA or Act) and EPA's rules that require states to prevent any future
and remedy any existing anthropogenic impairment of visibility in
mandatory Class I Areas (national parks and wilderness areas) caused by
emissions of air pollutants located over a wide geographic area (also
known as the ``regional haze'' program). States are required to assure
reasonable progress toward the national goal of achieving natural
visibility conditions in Class I areas. EPA is also promulgating a
Federal Implementation Plan (FIP) relying on the Transport Rule to
satisfy BART for sulfur dioxide (SO2) at one source to
address deficiencies in the State's plan.
DATES: Effective Date: This rule will become effective August 6, 2012.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R07-OAR-2012-0158. All documents in the docket
are listed on the www.regulations.gov Web site. Although listed in the
index, some information is not publicly available, i.e., Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically through www.regulations.gov or in hard
copy at the Air Planning and Development Branch, Air and Waste
Management Division, U.S. Environmental Protection Agency, Region 7,
901 North 5th Street, Kansas City, Kansas 66101. EPA requests that if
at all possible, you contact the person listed in the FOR FURTHER
INFORMATION CONTACT section for further information. The regional
office's official hours of business are Monday through Friday, 8:30 to
4:30, excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT: Mike Jay, Section Chief, Atmospheric
Programs Section, Air Planning and Development Branch, U.S.
Environmental Protection Agency, Region 7, 901 North 5th Street, Kansas
City, Kansas 66101; by telephone at (913) 551-7460; or by email at
[email protected].
SUPPLEMENTARY INFORMATION: For purposes of this document, we are giving
meaning to certain words or initials as follows:
a. The word Act or initials CAA mean or refer to the Clean Air Act.
b. The initials BART mean or refer to Best Available Retrofit
Technology.
c. The initials CAIR mean or refer to the Clean Air Interstate Rule.
d. The initials CENRAP mean or refer to the Central Regional Air
Planning Association.
e. The initials CSAPR mean or refer to Cross-State Air Pollution
Rule. The name ``Cross-State Air Pollution Rule'' and the name
``Transport Rule'' are used interchangeably and refer to the same
program.\1\
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\1\ Federal Implementation Plans to Reduce Interstate Transport
of Fine Particulate Matter and Ozone, 76 FR 48208 (August 8, 2011).
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f. The initials EGUs mean or refer to Electric Generating Units.
g. The words we, us or our or the initials EPA mean or refer to the
United States Environmental Protection Agency.
h. The initials DSI mean or refer to Dry Sorbent Injection.
i. The initials FGD mean or refer to Flue Gas Desulfurization. This
technology may also be referred to as a ``scrubber''.
j. The initials FIP mean or refer to Federal Implementation Plan.
k. The initials FLMs mean or refer to Federal Land Managers.
l. The initials GGS mean or refer to Gerald Gentleman Station,
operated by Nebraska Public Power District.
m. The initials IMPROVE mean or refer to Interagency Monitoring of
Protected Visual Environments monitoring network.
n. The initials LNB mean or refer to low NOX burners.
o. The initials LTS mean or refer to Long-Term Strategy.
p. The initials NAAQS mean or refer to National Ambient Air Quality
Standards.
q. The initials NCS mean or refer to Nebraska City Station, operated
by Omaha Public Power District.
r. The words Nebraska and State mean the State of Nebraska unless
the context indicates otherwise.
s. The initials NDEQ mean or refer to the Nebraska Department of
Environmental Quality.
t. The initials NOX mean or refer to nitrogen oxides.
u. The initials NPCA mean or refer to National Parks Conservation
Association.
v. The initials NPPD mean or refer to Nebraska Public Power
District.
w. The initials NPS mean or refer to National Park Service.
x. The initials OFA mean or refer to overfire air.
y. The initials OPPD mean or refer to Omaha Public Power District.
z. The initials PM mean or refer to particulate matter.
aa. The initials PSAT mean or refer to Particulate Source
Apportionment Technology.
bb. The initials RAVI mean or refer to Reasonably Attributable
Visibility Impairment.
cc. The initials RHR mean or refer to the Regional Haze Rule.
dd. The initials RPG mean or refer to Reasonable Progress Goal.
ee. The initials RPO mean or refer to Regional Planning
Organizations, such as CENRAP or WRAP.
ff. The initials SCR mean or refer to selective catalytic reduction.
gg. The initials SIP mean or refer to State Implementation Plan.
hh. The initials SNCR mean or refer to selective non-catalytic
reduction.
ii. The initials SO2 mean or refer to sulfur dioxide.
jj. The initials TSD mean or refer to Technical Support Document.
kk. The initials URP mean or refer to Uniform Rate of Progress.
ll. The initials WRAP mean or refer to Western Regional Air
Partnership.
Table of Contents
I. Background
II. Final Action
III. Public Comments and EPA Responses
IV. Regulatory Text
V. Statutory and Executive Order Reviews
I. Background
On March 2, 2012 (77 FR 12770), EPA published a notice of proposed
rulemaking for the State of Nebraska, proposing to approve a portion of
Nebraska's regional haze plan for the first implementation period
(through 2018), and proposing to partially approve and partially
disapprove those portions addressing the requirements for BART and the
long-term strategy. EPA's proposed rulemaking also proposed a FIP
relying on the Transport Rule to satisfy BART for SO2 at
Nebraska Public Power District, Gerald Gentleman Station, Units 1 and
2, to address the disapproval. A detailed explanation of the CAA's
visibility requirements and the Regional Haze Rule \2\ as it applies to
Nebraska was provided in the proposed rulemaking and will not be
restated here. EPA's rationale for proposing
[[Page 40151]]
partial approval and partial disapproval of the Nebraska regional haze
plan and for proposing the FIP was also described in detail in the
proposal, and is further described in this final rulemaking.
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\2\ 40 CFR 51.300-308.
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We requested comments on all aspects of our proposed action and
initially provided a 30-day public comment period, with the public
comment period closing on April 2, 2012. On April 4, 2012, a notice was
published extending the public comment period to May 2, 2012, and
providing notice of a public hearing to be held on April 18, 2012, if
requested by April 9, 2012.\3\ EPA received two requests for the public
hearing, from NDEQ by letter dated March 16, 2012, and from NPCA by
letter dated April 9, 2012, however, both requests were later withdrawn
by letters dated March 29, 2012, and April 11, 2012, respectively.
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\3\ 77 FR 20333 (April 4, 2012). EPA also provided information
about the public comment period extension and notice of public
hearing on its Web site on March 30, 2012, in advance of the Federal
Register publication. EPA previously noted in the docket that the
Web site notice was posted on April 6, 2012, which was incorrect.
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II. Final Action
In today's action, EPA is finalizing a partial approval and partial
disapproval of Nebraska's regional haze SIP, submitted on July 13,
2011. EPA is partially approving the majority of the provisions in the
SIP revision as meeting some of the applicable regional haze
requirements set forth in sections 169A and 169B of the Act and in the
Federal regulations codified at 40 CFR 51.300-308, and the requirements
of 40 CFR Part 51, Subpart F and Appendix V. EPA is disapproving the
SO2 BART determinations for Units 1 and 2 of GGS because
they do not comply with EPA's regulations. EPA is also disapproving
Nebraska's long-term strategy insofar as it relied on the deficient
SO2 BART determination at GGS. EPA is finalizing a FIP
relying on the Transport Rule as an alternative to BART for
SO2 emissions from GGS to address these deficiencies.\4\
Today's action finalizes our approval of the other portions of the SIP,
as described in the proposal. However, because EPA's basis for approval
of Nebraska's SIP as satisfying the requirements of the Regional Haze
Rule with respect to BART for NOX for GGS Units 1 and 2 has
been modified in light of comments received on the State's
determination, EPA provides additional explanation below and in the
response to comments in section III of this notice.
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\4\ EPA notes that Nebraska may, at any time: (1) Submit a
revision to their regional haze SIP incorporating the requirements
of the Transport Rule at which time EPA will propose to approve the
SIP and withdraw the FIP we are finalizing in today's action; (2)
submit a complete SIP revision substantively identical to the
provisions of the EPA trading program that is approved as meeting
the requirements of 40 CFR 52.39, along with a revision to their
regional haze SIP incorporating those requirements, at which time
EPA will withdraw the FIP we are finalizing in today's action; or
(3) Nebraska may submit a new SIP revision addressing specific BART
SO2 controls for GGS, in which case EPA will assess it
against the CAA and regional haze rule requirements as a possible
replacement for the FIP.
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EPA received a number of comments on the proposed rulemaking
regarding Nebraska's NOX BART determination for GGS Units 1
and 2. In its SIP submission, Nebraska determined that NOX
BART for GGS Units 1 and 2 was LNB and OFA at the presumptive BART
NOX emission rate of 0.23 lbs/MMBtu. The commenters
contended that the State's estimated costs of SCR were inflated,
resulting in artificially high cost effectiveness numbers, and that the
deciview improvement from the use of SCR would be significant,
particularly when a higher control efficiency (and lower emission
limit) is considered. The commenters added that when the cost
effectiveness and deciview numbers are adjusted, the resultant
incremental cost effectiveness of SCR over LNB and OFA and the cost per
deciview ($/dv) are below Nebraska's own thresholds, and it is
therefore reasonable to determine that SCR is BART for GGS Units 1 and
2.
In response to these comments, EPA conducted further analysis of
the costs of SCR at GGS. EPA found that Nebraska made some cost
assumptions which were not in accordance with EPA's Cost Control Manual
\5\ which resulted in inflated cost estimates. When EPA's adjusted cost
estimates based on the manual are used, the resultant incremental cost
effectiveness and $/dv are indeed below Nebraska's own thresholds for
what it considered reasonable for BART controls. In addition, the cost
effectiveness and deciview improvement are within a range that many
states and EPA have found to be reasonable for NOX BART
controls. Therefore, as a result of the comments received and
additional analysis performed, it appears that Nebraska's
NOX BART determination of LNB and OFA at a rate of 0.23 lbs/
MMBtu for GGS Units 1 and 2, by itself, is not supported by the record.
However, on August 8, 2011, EPA finalized the Transport Rule and
FIP.\6\ The Transport Rule, as promulgated, requires 28 states in the
eastern portion of the United States, including Nebraska, to
significantly improve air quality by controlling EGU SO2 and
NOX emissions that cross state lines and significantly
contribute to ground-level ozone and/or fine particle pollution in
other states. Nebraska is subject to the Transport Rule and FIP for
NOX at 40 CFR 52.1428. On June 7, 2012, EPA finalized its
finding that the trading programs in the Transport Rule achieve greater
reasonable progress towards the national goal of achieving natural
visibility conditions in Class I areas than source-specific EGU BART in
those states covered by the Transport Rule.\7\ Given the emission
reductions provided by the NOX limits associated with
Nebraska's NOX BART determination of LNB and OFA for GGS
Units 1 and 2, which strengthen the Nebraska SIP, in conjunction with
the existing Transport Rule FIP which already applies to Nebraska and
has been determined to provide greater reasonable progress than BART,
in today's action, EPA is finalizing its proposed approval of
Nebraska's SIP as satisfying the requirements of the Regional Haze Rule
with respect to BART for NOX.
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\5\ EPA Air Pollution Control Cost Manual, Sixth Edition, EPA/
452/B-02-001, January 2002.
\6\ See Federal Implementation Plans to Reduce Interstate
Transport of Fine Particulate Matter and Ozone, 76 FR 48208 (August
8, 2011).
\7\ See Regional Haze: Revisions to Provisions Governing
Alternatives to Source-Specific BART Determinations, Limited SIP
Disapprovals, and Federal Implementation Plans, 77 FR 33642 (June 7,
2012).
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III. Public Comments and EPA Responses
During the public comment period we received written comments from
the National Park Service; Omaha Public Power District; Nebraska
Association of Resources Districts, on behalf of several Natural
Resources Districts; Nebraska Department of Environmental Quality; the
Nebraska Attorney General; Nebraska Public Power District; National
Parks Conservation Association on behalf of themselves, Nebraska
Environmental Action Coalition, Plains Justice, and Sierra Club; and 35
similar letters from individuals. We have summarized the comments and
provided our responses below. Full copies of the comment letters are
available in the docket for this rulemaking. Comments and responses
below are grouped by subject rather than by commenter.
A. Comments Regarding EPA's Action
Comment 1: We received identical comment letters from thirty-five
individuals encouraging more emission controls on Nebraska sources in
order to address haze in the South Dakota National Parks. The letters
point out that at the current rate, the South Dakota Class I areas will
not meet the goal of
[[Page 40152]]
natural visibility conditions for more than two hundred years. The
commenters encourage EPA to require controls at Gerald Gentleman
Station and Nebraska City Station specifically.
Response 1: EPA appreciates the comments, but is partially
approving Nebraska's regional haze SIP and using the trading programs
of the Transport Rule as a BART alternative for the reasons stated in
the proposal and in other responses to comments in this action.
Comment 2: One commenter referenced and incorporated its January
21, 2011, comments to Nebraska on its draft regional haze plan. The
commenter stated that it is incorporating these comments by reference
because these comments are ``inherently related'' to this action.
Response 2: In today's rule, EPA is taking final action on the
partial approval and partial disapproval of Nebraska's regional haze
SIP. EPA is also taking final action on a FIP relying on the Transport
Rule to satisfy BART for SO2 at one source to address the
disapproval. The comments referenced by the commenter were made to the
State of Nebraska in a separate action. Nebraska timely responded to
these comments. All of the comments that were incorporated by reference
are addressed in today's action in EPA's response to comments. A copy
of Nebraska's response can be found in the docket to this action as
Appendix 3.1 to Nebraska's SIP submission.
B. Comments Regarding EPA and State Roles
Comment 3: We received several comments questioning whether we have
CAA authority to disapprove Nebraska's BART determinations and LTS and
determine BART through a FIP. The commenters generally contended that
Nebraska followed the CAA and EPA's rules in making the BART and LTS
determinations for the regional haze SIP. The commenters stated that
Nebraska followed the statutory and regulatory process, and that EPA is
exceeding its authority in substituting its judgment regarding
appropriate BART for GGS. One commenter stated that EPA has no record
upon which to support its proposed action to substitute its judgment
for NDEQ. The commenters also stated that EPA cannot ``arbitrarily and
capriciously'' substitute its own determination without a showing that
Nebraska's regional haze SIP failed to comply with the requirements of
the CAA.
Response 3: Congress directed in section 110 of the CAA that states
would take the lead in developing implementation plans, but balanced
that decision by requiring EPA to review the plans to determine whether
a SIP meets the requirements of the CAA. EPA's review of SIPs is not
limited to a ministerial type of ``rubber-stamping'' of a state's
decisions. EPA must consider not only whether the state considered the
appropriate factors, but also whether the state acted reasonably in
doing so. EPA ensures that such authority is reasonably exercised. EPA
has the authority to issue a FIP either when EPA has made a finding
that the state has timely failed to submit a SIP or where EPA has found
a SIP deficient. Here, EPA is approving as much of the Nebraska SIP as
possible and adopting a FIP only to fill the remaining gap. Our action
today is consistent with the statute.
As explained in the proposal, the State's SO2 BART
determination for GGS is not approvable for a number of reasons,
including errors in Nebraska's cost analysis for FGD controls, the
reasonableness of the costs of controls, the significant visibility
improvement achieved as a result of installing FGD or DSI, and improper
rejection of DSI. See 77 FR 12770, 12780. We have determined that the
faults in Nebraska's analysis were significant enough that they
resulted in BART determinations for SO2 that were both
unreasoned and unjustified, and therefore are not approvable.
In the absence of an approvable BART determination in the SIP for
SO2 for GGS, we are obliged to promulgate a FIP to satisfy
the CAA requirements. We are also required by the terms of a consent
decree with NPCA, entered with the U.S. District Court for the District
of Columbia to ensure that Nebraska's CAA requirements for regional
haze are finalized by June 15, 2012. Because we have found the State's
SIP submission does not adequately satisfy the BART requirements in
full and because we have previously found that Nebraska failed to
timely submit this SIP submission, we have not only the authority, but
a duty to promulgate a FIP that meets these requirements. Our action in
large part approves the regional haze SIP submitted by Nebraska; the
disapproval of the SO2 BART determination for GGS and the
imposition of a FIP does not encroach on State authority. This action
only ensures that CAA requirements are satisfied using our authority
under the CAA. We note that Nebraska may submit a new SIP revision
addressing the issue of SO2 controls for GGS, in which case
we will assess it against CAA and RHR requirements as a possible
replacement for the FIP. See also EPA's response to comments 32, 33,
and 34, which are incorporated by reference.
Comment 4: Two commenters argued that our proposal is inconsistent
with the decision of the D.C. Circuit in Am. Corn Grower's Ass'n v.
EPA, 291 F.3d 1 (D.C. Cir. 2002). The commenters contended that
language in the decision affirms its views regarding state authority
and EPA's lack of authority in regulating the problem of regional haze.
In particular, the American Corn Growers decision had described the CAA
as ``giving the states broad authority over BART determinations.'' Id.
at 8.
Response 4: We disagree that our action is inconsistent with the
American Corn Growers decision. The State's analysis of BART for
SO2 at GGS was flawed due to reasons discussed in the
proposal and elsewhere in this notice. We have determined these issues
resulted in non-approvable SO2 BART determinations for GGS
Units 1 and 2. We recognize the State's broad authority over BART
determinations, and recognize the State's authority to attribute weight
and significance to the statutory factors in making BART
determinations. As a separate matter, however, a state's BART
determination must be reasoned and based on an adequate record.
Although we have largely approved the State's regional haze SIP, we
cannot agree that CAA requirements are satisfied with respect to the
SO2 BART determination at GGS.
Comment 5: One commenter generally asserted that we lack authority
to disapprove Nebraska's regional haze SIP because of past cases. The
commenter cites Train v. NRDC, 421 U.S. 60, 79 (1975), Commonwealth of
Vir. v. EPA, 108 F.3d 1397 (D.C. Cir. 1997), and Bethlehem Steel Corp.
v. Gorusch, 742 F.2d 1028 (7th Cir. 1984). Pursuant to these cases, the
commenter argued that we cannot question the wisdom of a state's
choices or require particular control measures if plan provisions
satisfy CAA standards.
Response 5: States are required by the CAA to address the BART
requirements in their SIP. Our disapproval of the SO2 BART
determination in Nebraska's RH SIP is authorized under the CAA because
the State's SO2 BART determination for GGS does not satisfy
the statutory criteria. The State's analysis of BART for SO2
at GGS was flawed due to reasons discussed in the proposal and
elsewhere in this notice. While states have authority to exercise
different choices in determining BART, the determinations must be
reasonably supported. Nebraska's errors were significant enough that we
cannot
[[Page 40153]]
conclude the State determined BART for SO2 at GGS according
to CAA standards. The cases cited by the commenter stress important
limits on EPA authority in reviewing SIP submissions, but our
disapproval of this SO2 BART determination for GGS has an
appropriate basis in our CAA authority, and does not conflict with
these limitations.
Comment 6: One commenter cited to section 169A(g)(2) to support its
contention that the State of Nebraska has ``primary authority,'' where
EPA has no authority or lesser authority. Section 169A(g)(2) begins,
``in determining [BART] the State (or the Administrator in determining
emissions limitations which reflect such technology) shall take into
consideration'' several requisite statutory factors. The commenter
placed special emphasis on the references to the ``state'' in these
provisions and contends that the plain language of the statute provides
that states, and not EPA, have the authority to determine BART.
Response 6: We agree that states have authority to determine BART,
but we disagree with commenter's assertions that EPA has no authority
or lesser authority to determine BART when promulgating a FIP. As the
parenthetical in section 169A(b)(2)(A) indicates, the Administrator has
the authority to determine BART ``in the case of a plan promulgated
under section 7510(c).'' In other words, the Administrator has explicit
authority to determine BART when promulgating a FIP. Our BART
determination utilizes our authority under 40 CFR 51.308(e)(3) to rely
on an emissions trading program, here, the Transport Rule, which
provides greater reasonable progress towards improving visibility than
source-specific BART. We disagree that the language of the CAA limits
our authority to determine BART in the case of a FIP. See also EPA's
responses to comments 3, 5, and 7, which are incorporated by reference.
Comment 7: One commenter expressed its view that its arguments were
reinforced by legislative history of the 1977 CAA amendments. The
commenter referred to statements of Senator Edmund Muskie regarding the
conference agreement on the provisions for visibility protection in
those amendments. Senator Muskie stated that under the conference
agreement the state, ``not the Administrator,'' identifies BART-
eligible sources and determines BART. 123 Cong. Rec. 26854 (August 4,
1977). The commenter also noted that Am. Corn Growers Ass'n v. EPA 291
F.3d 1 (D.C. Cir. 2002) used legislative history, including the
Conference Report on the 1977 amendments, when the Court had
invalidated past regulatory provisions regarding BART for constraining
state authority. The Court stated that the Conference report confirmed
that Congress ``intended the states to decide which sources impair
visibility and what BART controls must apply to those sources.''
Response 7: We agree that the CAA places the requirements for
determining BART for BART-eligible sources on states. As discussed
previously, the CAA also requires the Administrator to determine BART
in the absence of an approvable determination from the state. Because
Nebraska's BART determination for SO2 for GGS does not
conform to the RHR and the BART Guidelines \8\ and is not approvable,
we are authorized and at this time required to promulgate a FIP.
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\8\ The BART Guidelines: 40 CFR Part 51, Appendix Y.
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Comment 8: One commenter cited to 169A(b) stating that this
provision only allows for EPA to issue guidelines with technical and
procedural guidance for determining BART but for the actual
implementation plan to be developed by each state (except for fossil-
fueled power plants with capacity that exceeds 750 megawatts (MW)). The
commenter stated that the CAA does not provide EPA the authority to
disapprove a BART decision or require specific controls for BART.
Response 8: States shoulder significant responsibilities in CAA
implementation and effectuating the requirements of the RHR. EPA has
the responsibility of ensuring that state plans, including regional
haze SIPs, conform to CAA requirements. None of the CAA provisions
cited by commenters change our conclusion that we have authority and
duty to issue a FIP to satisfy BART requirements given that Nebraska's
regional haze SIP is not fully approvable. Our inability to approve the
State's BART determination for SO2 for GGS means we must
follow through on our non-discretionary duty to promulgate a FIP.
Comment 9: Several commenters who argued that the plain language of
the CAA requires that states are the primary or only BART determining
authorities have also cited our preamble language from past Federal
Register publications that they believe reinforces their contention.
For example, several commenters cited 70 FR 39104 at 39107, which reads
in part, ``the State must determine the appropriate level of BART
control for each source of BART.'' One commenter also cited 70 FR 39104
at 31958 which provides that the ``State will determine a `best system
of continuous emission reduction' based upon its evaluation of these
factors.'' One commenter cited to 70 FR 39104 at 39170-39171 stating
the State has discretion to determine the order in which it should
evaluate control options for BART. One commenter also commented that
the CAA provides Nebraska with great discretion to balance the five
statutory factors and that states are free to determine the weight and
significance assigned to each factor.
Response 9: We agree that states are assigned statutory and
regulatory authority to determine BART and that many past EPA
statements have confirmed state authority in this regard. Although the
states have the freedom to determine the weight and significance of the
statutory factors, they have an overriding obligation to come to a
reasoned determination. As detailed in our proposal and the supporting
TSD, Nebraska's SO2 BART determination for GGS was based on
flawed analysis and an unreasonable conclusion. Because the State's
SO2 BART determination for GGS is not approvable, we are
obligated to step into the shoes of the State and arrive at our own
BART determinations.
C. Comments Regarding Public Notice
Comment 10: One commenter insinuated that EPA held a meeting with
NDEQ and local stakeholders in North Platte, Nebraska on April 12,
2012, ``in lieu'' of a public hearing.
Response 10: The April 12, 2012, meeting was not held ``in lieu''
of a public hearing. As the commenter notes, NDEQ requested a public
hearing on March 16, 2012, and then on April 2, 2012, withdrew the
request for public hearing. As required by section 307(d) of the CAA,
EPA provided the opportunity for public hearing on its proposed FIP;
although two parties initially requested a public hearing, both
requests were withdrawn. Because the requests were withdrawn and no
other timely requests for public hearing were received, EPA canceled
the public hearing that had been scheduled to take place. EPA's notes
from the April 12, 2012, meeting are available in the docket for this
action.
Comment 11: NPPD submitted comments expressing concerns about EPA's
cancellation of the public hearing and decision to have a ``private''
meeting with NPCA as a substitute for the public hearing. NPPD
requested to attend the meeting between EPA and NPCA, and stated that
not allowing NPPD and other interested parties to attend the meeting
deprived them of their due process rights in this matter.
[[Page 40154]]
Response 11: Due to the time sensitive nature of this comment and
request, EPA responded to NPPD by letter on April 17, 2012. For
completeness of our response to comments in today's action, EPA
summarizes its response here. Copies of NPPD's April 13, 2012, letter
and EPA's April 17, 2012, letter are included in the docket for this
rulemaking. EPA disagrees with the suggestion that all necessary public
notice procedures were not followed by EPA, or that any parties were
deprived of their due process rights. During the public comment period,
EPA received two requests for a public hearing, one from NDEQ and one
from NPCA, both of which were subsequently withdrawn by the
requestors.\9\ No other requests for the public hearing were received
during the prescribed time frame, including from NPPD, and therefore,
EPA cancelled the public hearing.
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\9\ Copies of all letters requesting a public hearing, and later
withdrawing those requests, as well as summaries of all meetings,
are provided in the docket for EPA's rulemaking, Docket No. EPA-R07-
OAR-2012-0158.
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NDEQ and NPCA both requested to meet with EPA regarding our
proposed rule. The meetings with NDEQ and NPCA were not ``public
meetings'' and no public notice of these meetings was provided. EPA
did, however, provide a summary of the meetings for the docket.\10\ EPA
meets with various stakeholders regarding proposed actions on a routine
basis. EPA met with NPCA representatives to listen to their interests
just as EPA met with NPPD at the meeting hosted by NDEQ. NPPD provided
no specific basis for its contention that it was denied ``due
process'', and it submitted extensive comments (46 pages) on the
proposed rule.
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\10\ A summary of the meeting with NPCA was provided for the
docket prior to the time that NPPD submitted its comments on the
proposed rule.
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D. Comments About the Benefits of Regional Haze Pollution Controls
Comment 12: One commenter noted that pollutants that cause
visibility impairment also harm public health. Specifically, the
commenter asserted the following: ``Regional haze pollutants include
NOX, SO2, PM, ammonia, and sulfuric acid.
NOX is a precursor to ground level ozone, which is
associated with respiratory diseases, asthma attacks, and decreased
lung function. In addition, NOX reacts with ammonia,
moisture, and other compounds to form particulates that can cause and
worsen respiratory diseases, aggravate heart disease, and lead to
premature death. Similarly, SO2 increases asthma symptoms,
leads to increased hospital visits, and can form particulates that
aggravate respiratory and heart diseases that cause premature death. PM
can penetrate deep into the lungs and cause a host of health problems,
such as aggravated asthma, chronic bronchitis, and heart attacks.''
The commenter cited to EPA's estimates that in 2015, full
implementation of the RHR nationally will prevent 1,600 premature
deaths, 2,200 non-fatal heart attacks, 960 hospital emissions, and over
one million lost school and work days. The RHR will result in health
benefits valued at $8.4 to $9.8 billion annually.
The commenter also stated that haze-causing emissions harm
terrestrial and aquatic plants and animals, soil health and moving and
stationary water bodies by contributing to acid rain, ozone formation,
and nitrogen deposition. The commenter also stated that haze-causing
pollutants are precursors to ozone. The commenter stated that ground-
level ozone formation impacts plants and ecosystems in a variety of
ways.
Response 12: We appreciate the commenter's concerns regarding the
negative human health and ecosystem impacts of emissions from the units
at issue. We agree that the same NOX emissions that cause
visibility impairment also contribute to the formation of ground-level
ozone, which has been linked with respiratory problems, aggravated
asthma, and even permanent lung damage. We also agree that
SO2 emissions that cause visibility impairment also
contribute to increased hospital visits and can form particulates that
aggravate respiratory and heart diseases, and that both NOX
and SO2 cause acid rain. We agree that the same emissions
that cause visibility impairment can form fine PM and be inhaled deep
into lungs, which can cause respiratory problems, decreased lung
function, aggravated asthma, bronchitis, and premature death. We agree
that these pollutants can have negative impacts on ecosystems, damaging
plants, trees, and other vegetation (including crop yields), which
could have a negative effect on species diversity in our ecosystems.
Therefore, although our action concerns visibility impairment, we note
the potential for significant improvements in human and ecosystem
health.
Comment 13: We received one comment that the proposed action would
help the economy in a variety of ways. The commenter stated that
tourism in national parks provides Federal and local private sector
revenue and provides hundreds of thousands of jobs. The commenter
stated that national park tourism is a critical component to the
economy of the Midwest and deterioration in improvement to visibility
at a national park can reduce tourism to those parks. The commenter
also stated that requiring facilities to install controls also creates
jobs.
Response 13: Although we did not consider the potential positive
benefits to local economics in making our decision today, we do
acknowledge that improved visibility may have a positive effect on
tourism and local jobs.\11\ This action may also result in significant
improvements in human health. Improved human health can reduce
healthcare costs and reduce the number of missed school and work days
in the community.
---------------------------------------------------------------------------
\11\ EPA has addressed employment impacts of the Transport Rule.
76 FR 28208, 48317-48319.
---------------------------------------------------------------------------
E. Comments Regarding Reasonable Progress Goals and Long-Term Strategy
Comment 14: One commenter states that the development of the LTS is
the responsibility of each affected state, not the EPA, and the state
is only required to ensure that the RPG of the state containing the
Class I area is met. EPA proposed disapproval of Nebraska's LTS on the
basis that it relied on the deficient BART determination for
SO2 at GGS. The commenter contends that this rationale is
not consistent with the Federal requirements, and that Nebraska
adequately addressed all requirements for the LTS set forth at 40 CFR
51.308(d)(3) in its regional haze SIP submission, including
consultation with South Dakota and other affected states, tribes, and
FLMs on coordinated emission management strategies; provision of all
applicable technical information pertaining to the apportionment of
emission reduction obligations, including the baseline emissions
inventory; identification of all anthropogenic sources of visibility
impairment considered by the State; and consideration of the factors at
40 CFR part 51.308(d)(3)(v). Another commenter maintains that because
Nebraska's SO2 BART determination was not defective,
Nebraska's LTS should be approved.
Response 14: As further explained elsewhere in today's action,
Congress directed in section 110 of the CAA that states would take the
lead in developing implementation plans, but balanced that decision by
requiring EPA to review the plans to determine whether a SIP meets the
requirements of the CAA. EPA must consider not only whether the State
considered the appropriate factors in development of its LTS, but also
whether the State acted reasonably in doing so. The commenter correctly
cites
[[Page 40155]]
the factors that must be considered in development of the LTS, and
notes that EPA largely approved the LTS, except for that portion that
relies on what the EPA proposed was the State's flawed SO2
BART determination for GGS. EPA disagrees with the commenter's
statements that this does not provide a basis for disapproval of a
portion of the Nebraska's LTS. Section 169A of the CAA and the EPA's
implementing regulations require states to establish LTS for making
reasonable progress towards the national goal of achieving natural
visibility conditions in Class I areas. Implementation plans must also
give specific attention to certain stationary sources. Specifically,
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. Because EPA
cannot fully approve SO2 BART for GGS, we cannot fully
approve a LTS that relies on it.
For the reasons cited elsewhere in today's action, EPA disagrees
that Nebraska's SO2 BART determination for GGS was
reasonable and in accordance with 40 CFR 51.308(e) and the BART
Guidelines. Therefore, in this action, EPA appropriately disapproves
Nebraska's LTS only insofar as it relied upon the improper
SO2 BART determination for GGS. See also EPA's response to
comment 3, which is incorporated by reference.
Comment 15: Several commenters point out what they contend are
inconsistencies between EPA's approval of the South Dakota RPGs for
Badlands and Wind Cave Class I areas,\12\ and today's action. The
commenters state that Nebraska's work through CENRAP and direct
consultation with South Dakota as well as other states, tribes and FLMs
ensured that all entities were fully informed of the proposed decisions
in the Nebraska regional haze SIP. If additional measures were
necessary to ensure that South Dakota met their RPGs, it would have
been appropriate for either (1) South Dakota to request the additional
measures from Nebraska, or (2) EPA to disapprove the LTS of South
Dakota and for South Dakota to notify Nebraska that additional measures
were needed. However, EPA approved the South Dakota regional haze SIP
in its entirety. The commenter asserts that the EPA region with
oversight over a Class I area is tasked with ensuring that the
applicable state's RPGs are sufficient and practical. If that state's
RPGs are not sufficient or practical, each state participating in the
regional planning process for the applicable Class I area would be
required to re-evaluate their LTS and make appropriate revisions to
ensure they met their apportionment of emission reduction obligations
necessary for achieving reasonable progress. The commenters contend
that through its approval of the South Dakota regional haze plan, EPA
verified that each state involved in the regional planning process,
including Nebraska, met their apportionment of emission reductions,
without requiring any implementation of FGD at GGS. Another commenter
asserts that the emission projections used in the WRAP regional
modeling clearly assumed scrubbers operated at 0.15 lbs/MMBtu would be
installed to meet SO2 BART at GGS, and because our proposal
relied on the Transport Rule in lieu of source-specific BART for
SO2 at GGS, South Dakota will not likely meet its reasonable
progress goals at Badlands and Wind Cave National Parks, which already
fall short of the uniform rate of progress towards natural background
visibility conditions. Commenters also contend that these same issues
apply to Colorado, Oklahoma, Missouri, and Arkansas, which also relied
on RPO modeling and assumed presumptive SO2 BART emission
reductions at GGS, and at a minimum, GGS should meet presumptive BART
emission levels.
---------------------------------------------------------------------------
\12\ 77 FR 24845 (April 26, 2012).
---------------------------------------------------------------------------
Response 15: EPA disagrees that inconsistencies exist between
today's action and EPA's approval of South Dakota's RPGs, and disagrees
that inclusion of presumptive BART for purposes of air quality modeling
necessitates a source-specific SO2 BART FIP for GGS.
South Dakota, as a state hosting Class I areas, established goals
for Badlands and Wind Cave National Parks that provide for reasonable
progress towards achieving natural visibility conditions, in accordance
with 40 CFR 51.308(d)(1). As set forth in EPA's proposed and final
approval of South Dakota's regional haze SIP,\13\ South Dakota
constructed its uniform rate of progress and set the RPGs consistent
with the requirements of the RHR.
---------------------------------------------------------------------------
\13\ EPA's proposed approval of South Dakota's regional haze SIP
is found at 76 FR 76646 (Dec. 8, 2011) and EPA's final approval is
found at 77 FR 24845 (April 26, 2012).
---------------------------------------------------------------------------
To set RPGs, states looked to the air quality modeling performed by
the RPOs. The modeling assumed emission reductions from each state
based on extensive consultation among the states as to appropriate
strategies for addressing haze. The air quality models used to support
the regional haze SIPs are extremely complex, and due to the time
consuming nature of performing the modeling, this work was performed
early in the process. The emissions projections by the RPOs, relied
upon in the air quality modeling, incorporated the best available
information at the time from the states, and utilized the appropriate
methods and models to provide a prediction of emissions from all source
categories into the future. There was an inherent amount of uncertainty
in the assumed emissions from all sources, including emissions from
BART-eligible sources, as the final control decisions by all of the
states were not yet complete. Nebraska provided the RPOs with their
best estimates of what their regional haze SIP would achieve as inputs
for the modeling, before they had made final BART determinations. The
regional modeling incorporated BART presumptive emission reductions,
and other states relied on these reductions in setting their RPGs.
Nebraska's BART determination ultimately did not require
presumptive SO2 BART for GGS, and Nebraska did not provide
any information demonstrating those emission reductions would be
otherwise achieved. The relevant requirement at 40 CFR 51.308(d)(3)(ii)
is that Nebraska must demonstrate that it has included all measures
necessary to obtain its share of the emission reductions needed to meet
the RPGs for Class I areas where it causes or contributes to
impairment. Class I states like South Dakota originally set the
reasonable progress goals in their SIP based on emission reductions
expected to be achieved through application of presumptive BART, CAIR,
and other emission reductions qualified for that purpose. South Dakota
had the opportunity to comment on Nebraska's draft BART permits as well
as the overall regional haze SIP, and did not ask for additional
emission reductions from Nebraska. As Nebraska did establish a BART
limit for GGS and informed South Dakota that its BART determination
deviated from what was included in the modeling, the fact that the
final BART determination varied from the predictions is not grounds for
disapproving either SIP. The RPGs are not enforceable goals. South
Dakota will have the responsibility to consider whether other
reasonable control measures are appropriate to ensure reasonable
progress during subsequent periodic progress reports and regional haze
SIP revisions as required by 40 CFR
[[Page 40156]]
51.308(f)-(h), and may at that time consider asking Nebraska for
additional emission reductions.
Comment 16: One commenter stated that the source retirement
discussion in the Nebraska SIP submission was inadequate, as it did not
contain a discussion of changes in energy and other markets and their
likely effect on future emissions.
Response 16: The requirement in 40 CFR 51.308(d)(3)(v) is for a
state to consider source retirement and replacement schedules as a
factor in developing its long-term strategy. Nebraska considered source
retirements and replacements as a part of estimating the change in
emissions from the baseline year of 2002 through the first
implementation period for regional haze SIPs (2018). As stated in the
SIP, 2002 emissions were grown to year 2018 utilizing EPA approved
methods including the use of MOBILE 6.2 vehicle emission modeling
software, and the Integrated Planning Model (IPM) version 2.93 for
EGUs. These tools include estimations of source retirement and
replacements when accounting for the effects of Federal and state
rules. Thus, we believe that Nebraska adequately considered source
retirements and replacements when developing its long-term strategy.
Comment 17: One commenter criticized Nebraska's lack of analysis of
potential emission reductions from stationary sources that are not
BART-eligible or that are BART-eligible but not subject-to-BART.
Response 17: The long-term strategy requirements of the rule do not
specifically require an analysis of the potential emission reductions
from stationary sources that are not BART-eligible or that are BART-
eligible but not subject-to-BART. The requirement is for the State to
identify all anthropogenic sources of visibility impairment considered
by the State in developing its long-term strategy. The CENRAP modeling
demonstration provided by the State considered emissions of all
anthropogenic source categories including major and minor stationary
sources, mobile sources, and area sources in developing its strategy.
With the exception of the SO2 component of the BART
requirements as described elsewhere in our proposal and in this notice,
the State has successfully demonstrated compliance with all other
remaining elements of the long-term strategy requirements.
Comment 18: One commenter questioned why EPA would point out in its
proposed action that, ``* * * although Nebraska participated as a
member state in CENRAP, the greatest impacts from Nebraska sources
occur in a WRAP state--South Dakota.''
Response 18: This statement is merely reiterating the fact that the
Class I areas most impacted by emissions from Nebraska are in South
Dakota which is a participant in a different RPO, as noted elsewhere in
the proposal.
F. Comments Regarding Visibility Improvement Metrics
Comment 19: One commenter stated that if EPA is relying on a
particular threshold for determining the significance of a visibility
benefit, this threshold should be explained and identified.
Response 19: There is no particular threshold for determining
significance of visibility benefit in the regional haze rule.
Significance is a source- and Class I-specific evaluation, meaning that
it depends on how much visibility improvement is needed at the Class I
area(s), how much a specific source impacts the Class I area(s), and
the cost effectiveness and potential visibility improvement of
available control options. States have latitude to determine these
thresholds,\14\ providing support and a reasonable and adequate basis
for why they selected the thresholds, and to determine BART and
reasonable progress controls, in consultation with other impacted
states. As long as this evaluation is done adequately and the states
provide a reasoned basis for their decisions, EPA will defer to the
state.
---------------------------------------------------------------------------
\14\ BART guidelines at 70 FR 39170: However, we believe the
States have flexibility in setting absolute thresholds, target
levels of improvement, or de minimis levels since the deciview
improvement must be weighed among the five factors, and States are
free to determine the weight and significance to be assigned to each
factor. For example, a 0.3, 0.5, or even 1.0 deciview improvement
may merit stronger weighting in one case versus another, so one
``bright line'' may not be appropriate.
---------------------------------------------------------------------------
Comment 20: One commenter remarked that they agree with use of the
dollars per deciview metric to select BART controls, but encourage
cumulative visibility benefits to be included, rather than just results
at the nearest Class I area. They reiterate EPA's comments in the
January 21, 2011, letter to NDEQ on the draft SIP, stating that ``a $/
dv analysis is likely to be less meaningful if the analysis does not
take into account the visibility impacts at multiple Class I areas or
ignores the total improvement (i.e., the frequency, magnitude, and
duration of the modeled changes in visibility).''
Another commenter discussed the importance of considering
cumulative visibility benefits, both as the sum of smaller improvements
at one Class I area and as the benefit of an action to all impacted
Class I areas, as EPA has done previously in other actions, such as
Oklahoma and New York.
Response 20: The BART Guidelines list the dollars per deciview
ratio as an additional cost effectiveness metric that can be employed
along with dollars per ton in a BART evaluation. However, EPA does not
have guidelines on how the dollars per deciview metric is to be used,
and there is inconsistency in how states have calculated it. We believe
that dollars per deciview is one of several metrics that can be used to
analyze cost of visibility improvement, and reaffirm our position that
the calculation is more meaningful if cumulative visibility benefits
are accounted for.
Comment 21: One commenter called the use of a cumulative impacts
analysis for GGS ``unauthorized''. The commenter pointed out that a
BART-eligible source is ``subject to BART'' only if it ``may reasonably
be anticipated to cause or contribute to any impairment of visibility
in any mandatory Class I Federal area,'' adding emphasis to area.
Response 21: We consider this to be somewhat of a moot point, as
the source in question, GGS, clearly causes visibility impairment at
the closest Class I area, Badlands, even without consideration of
cumulative impacts.\15\
---------------------------------------------------------------------------
\15\ CALPUFF modeling shows that GGS impacts Badlands an average
of 2.93 dv in the baseline years of 2001-2003.
---------------------------------------------------------------------------
However, as stated previously and consistent with other EPA actions
on regional haze, we also believe that a cumulative impacts analysis is
a useful tool for examining the impact of a BART-subject source and the
visibility improvement to be gained by the addition of emission
controls, and do not agree that use of this tool is unauthorized or
unreasonable.
Comment 22: One commenter criticizes the lack of attention EPA
gives in its proposed action to Nebraska's dollar per deciview analysis
presented in its SIP. The commenter reiterates Nebraska's conclusions
on cost per deciview of improvement, saying that the dollars per
deciview of visibility improvement for FGD at GGS far exceeded that of
any other utility Nebraska compared it to. The commenter states that
EPA ``does not and cannot disturb Nebraska's threshold of $40 million
per deciview per year.''
Response 22: EPA reviewed all of Nebraska's analysis presented in
the SIP, including total annualized costs, dollars per ton, dollars per
deciview, incremental dollars per ton, incremental dollars per
deciview, and frequency (number of days) impacted. The State is
[[Page 40157]]
free to set the thresholds it chooses, as long as it provides support
and a reasonable and adequate basis for the threshold. Nebraska set a
cost threshold at $40 million/dv/year as reasonable for BART controls,
however, the State did not provide justification or basis for why it
chose that threshold.
For BART, the BART Guidelines require that cost effectiveness be
calculated in terms of annualized dollars per ton of pollutant removed,
or $/ton,\16\ so the language in our proposal focuses on $/ton.
---------------------------------------------------------------------------
\16\ 70 FR 39167.
---------------------------------------------------------------------------
In addition, if the cost of controls are overestimated, and the
true efficiency of the control technology is not modeled, as is the
case with the BART analysis at GGS, the result is a metric that
overestimates cost and underestimates visibility improvement.
As seen in Table 1, even with overestimated costs, if visibility
improvement is considered on a cumulative basis, the cost per deciview
for SO2 control is under Nebraska's threshold--$34,238,388.
Without overestimated costs, even at the presumptive level of control,
dollars per deciview are half of Nebraska's threshold--$20,987,655. The
cumulative visibility benefits of more stringent levels of control,
such as 0.06 lbs/MMBtu, is unknown, but would clearly be well under
half of the threshold Nebraska set as being cost effective for BART
controls on a dollars per deciview basis.
Table 1--Range of GGS Dry Scrubber Cost Effectiveness
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Dry FGD Dry FGD EPA's estimate revised from comments
(Nebraska's
original BART
analysis)
----------------------------------------------------------------------------------------------------------------
SO2 Baseline.................. 49,785 49,785
---------------------------------------------------------------
Uncontrolled Emission Level 0.749 0.749
(lbs/MMBtu).
---------------------------------------------------------------
Controlled Emission Rate (lbs/ 0.15 0.15 0.11................. 0.06.
MMBtu).
----------------------------------------------------------------------------------------------------------------
Percent Reduction............. 80% 80% 85.3%................ 92%.
----------------------------------------------------------------------------------------------------------------
SO2 Emission Reduction (tons). 39,815 39,815 42,473............... 45,797.
----------------------------------------------------------------------------------------------------------------
Total Annualized Cost......... $108,535,690 $66,530,865 $67,871,854.......... $69,519,846.
----------------------------------------------------------------------------------------------------------------
Total Cost Effectiveness ($/ $2,726 $1,671 $1,598............... $1,518.
ton).
----------------------------------------------------------------------------------------------------------------
$/dv (Badlands)............... $139,148,321 $85,295,981 unknown \a\.......... unknown.
-------------------------------------------------------------------
$/dv (Cumulative) \b\......... $34,238,388 $20,987,655
----------------------------------------------------------------------------------------------------------------
\a\ Nebraska did not conduct visibility modeling for FGD at a rate of 0.11 or 0.06 lbs/MMBtu SO2.
\b\ In calculating cumulative visibility improvement, NDEQ only considered the two closest Class I areas,
Badlands and Wind Cave in South Dakota. As described in our TSD, we believe that it is more appropriate to
calculate cumulative improvement from all six Class I areas which are impacted greater than 0.5 dv from GGS
Units 1 and 2.
G. Comments Regarding BART for Particulate Matter
Comment 23: One commenter stated that EPA failed to propose
approval or disapproval of Nebraska's PM BART determination for NCS and
GGS. The commenter provides that EPA characterized Nebraska's PM BART
analyses for NCS and GGS as ``* * * direct PM emissions from [the
facility] do not significantly contribute to visibility impairment, and
therefore, a full five factor BART analysis for PM was not needed.'' 77
FR 12778. The commenter contends that although EPA proposed to agree
with these conclusions, it did not approve or disapprove Nebraska's
further conclusion that BART for PM is existing controls and
requirements, which it is required to do.\17\
---------------------------------------------------------------------------
\17\ Nebraska Regional Haze SIP, submitted July 13, 2011, at
pages 45 and 48.
---------------------------------------------------------------------------
Response 23: We disagree with the commenter's assertion that EPA is
required to approve or disapprove Nebraska's conclusion that BART for
PM is existing controls and requirements. The RHR and the BART
Guidelines \18\ require a determination as to whether a source is
subject to BART, that is, whether the BART-eligible source emits any
pollutant which may reasonably be anticipated to cause or contribute to
any impairment of visibility in any Class I area. In performing this
analysis, Nebraska appropriately utilized source-specific CALPUFF
modeling to analyze whether SO2, NOX, and direct
PM emissions contributed to visibility impairment at Class I areas. As
a result of the modeled demonstration that impairment due to direct PM
emissions is minimal, Nebraska appropriately concluded that direct PM
emissions from GGS and NCS do not significantly contribute to
visibility impairment. Under the RHR and BART Guidelines, the State is
not required to go further in performing a full-five factor analysis
for PM to determine BART. While the State is free to make additional
findings related to existing controls at GGS and NCS, EPA is not
required to act upon them as those findings go beyond what is required
by the rule and EPA has determined the State met the minimum
requirements for BART analysis for direct PM.
---------------------------------------------------------------------------
\18\ The Regional Haze Rule at 40 CFR 51.308(e)(1)(ii)(B) states
that the ``determination of BART for fossil-fuel fired power plants
having a total generating capacity greater than 750 megawatts must
be made pursuant to the guidelines in Appendix Y of this part
(Guidelines for BART Determinations Under the Regional Haze Rule).''
---------------------------------------------------------------------------
H. Comments Regarding BART for NOX at Gerald Gentleman
Station
Comment 24: Many comments were received regarding the cost
estimations for SCR at GGS. The commenters asserted the cost
estimations provided
[[Page 40158]]
by Nebraska \19\ were not supported by adequate information, such as
specific vendor quotes. The commenters argued that Nebraska
inappropriately included several costs such as escalation, inflation,
allowance for funds used during construction (AFUDC), and an
unjustified expense for taking a unit offline to install an SCR (rather
than installing it during a routine outage). They also contended that
site-specific factors such as real interest rates (5.25 percent rather
than 7 percent) and a 30-year expected lifetime (rather than 20 years)
should be used. The commenters asserted that these overestimations
significantly inflate the cost of controls, totaling $377/kW, higher
than known costs associated with any SCR installation. The commenters
contend that no information was presented in the Nebraska BART analysis
showing space constraints or particular complexity of retrofit which
would justify such high cost estimations.
---------------------------------------------------------------------------
\19\ The commenters refer to these cost estimations as NPPD's.
NDEQ accepted NPPD's estimations and submitted them to EPA, so for
consistency, we are referring to these estimations as
``Nebraska's.''
---------------------------------------------------------------------------
Several commenters stated their belief that at Nebraska's
calculated cost of $2,297/ton, LNB/OFA plus SCR is cost effective for
NOX control at GGS. The commenters assert that this cost is
well within the range of cost effectiveness values required by EPA and
other states, and in fact, below the values Nebraska found cost
effective for SO2 controls at GGS. The commenters assert
that if the costs of controls were adjusted to correct for
inconsistencies with the Cost Control Manual methodology, the controls
would be even more cost effective.
One commenter presented a NOX BART cost estimation for
SCR at GGS using EPA's Cost Control Manual and Integrated Planning
Model (IPM) for each of the two Units individually. The commenter
concluded that LNB/OFA plus SCR for Units 1 and 2 at a limit of 0.05
lbs/MMBtu would remove almost 20,000 tons of NOX per year
and cost approximately $1,900 per ton. They argue that with this more
reasonable cost estimate, the costs of control are below Nebraska's
stated threshold of $40 million/dv, at $12-19 million/cumulative dv.
Response 24: As described below and in Appendix D, E, and F, we
agree with the commenters that Nebraska's SCR costs were overestimated
by including expenses inconsistent with EPA's Cost Control Manual. In
response to these comments, we conducted an evaluation of the cost of
SCR, using the information provided by Nebraska and adjusting it in
accordance with the Cost Control Manual. We made a number of
adjustments to Nebraska's SCR cost estimation, including:
Adjustments to the engineering, planning, and construction
(EPC) cost
Adjustments to the contingencies
Deletion of escalation and allowance for funds used during
construction (AFUDC)
Inclusion of a NOX control rate cost scenario of
0.05 lbs/MMBtu
Increasing the SCR operational life from 20 to 30 years
Adjusting the capital recovery factor (CRF)
We did not exclude the cost of taking a unit offline to install an
SCR (rather than installing it during a routine outage), as we do not
have any information to show that this is an unreasonable assumption.
However, we did reduce this annualized charge from $1,021,000 to
$833,683, by recalculating it based on our CRF. If the cost was
eliminated entirely, it would only change the cost effectiveness $/ton
figures by approximately 2 percent. Therefore, even if the commenter is
correct that this charge is unwarranted, it would not have likely
impacted Nebraska's decision to eliminate SCR as BART.
Table 2 summarizes EPA's adjustments to Nebraska's cost estimates
for SCR control. Nebraska conducted the BART evaluation for the two
units at GGS together, so the results presented in Table 2 are combined
for the two units.
Table 2--Revised NOX Cost Calculations (SCR), Gerald Gentleman Station, Units 1 & 2
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Original analysis (NDEQ)
Revised analysis (EPA)
-------------------------------------------------------------------------------
LNB/OFA LNB/OFA + SCR LNB/OFA + SCR
----------------------------------------------------------------------------------------------------------------
Baseline (before control)....... 30,243 30,243 30,243 30,243.
Emission rate (lbs/MMBtu)....... 0.23 0.08 0.08 0.05.
Control efficiency.............. 49% 82% 82% 89%.
Controlled emissions (tpy)...... 15,287 5,317 5,317 3,323.
Tons NOx removed (total)........ 14,956 24,926 24,926 26,920.
Total Annualized Cost........... $2,960,000 $57,251,000 $39,467,000 $41,760,000.
Total cost per ton.............. $198 $2,297 $1,583 $1,551.
Tons NOx removed (incremental N/A 9,970 9,970 11,964.
over LNB/OFA).
Incremental cost per ton........ N/A $5,445 $3,662 $3,243.
Incremental visibility N/A 0.49 \a\ 0.49 unknown\b\.
improvement (delta dv).
Total visibility improvement, 0.66 1.15 \c\ 1.15 unknown.
Badlands.
Total visibility improvement, 1.94 3.21 3.21 unknown.
Cumulative \d\.
Total $/dv, Badlands............ $4,484,848 $49,783,478 $34,319,130 unknown.
Total $/dv, Cumulative.......... $1,525,773 $17,835,202 $12,295,016 unknown.
----------------------------------------------------------------------------------------------------------------
\a\ Note that Nebraska modeled the two units at GGS together. The incremental improvement of 0.49 dv is the
average improvement over the three baseline years. If this analysis was separated by unit, the per-unit
incremental improvement would be approximately 0.24 dv on average. If the maximum incremental improvement were
considered, it would be 0.54 dv for the two units combined, or approximately 0.27 dv for each unit.
\b\ Nebraska only conducted CALPUFF modeling at the control rate of 0.08 lbs/MMBtu. We have not determined the
predicted visibility improvement resulting from consideration of a lower rate, such as 0.05 lbs/MMBtu.
\c\ Total average improvement for the baseline period for the two units combined is 1.15 dv. Average improvement
for each unit would be approximately 0.575 dv. Total maximum improvement for the two units would be 1.24 dv,
or approximately 0.62 dv each.
\d\ GGS impacts 6 Class I areas more than 0.5 dv. Improvements from these 6 areas are included in this
calculation.
EPA's reevaluation of Nebraska's SCR cost estimate resulted in
lowering the total capital cost from $478,151,000 to $320,209,000 for
the 0.08 lbs/MMBtu emission rate, a reduction of approximately 33
percent. This results in an incremental cost effectiveness change from
Nebraska's estimate of $5,445/ton to $3,662/ton, or $3,243 per
[[Page 40159]]
ton if the 0.05 lbs/MMBtu rate is considered.
When the costs are recalculated, it appears that the costs are
within a range that many states and EPA have found to be reasonable for
NOX BART controls. EPA also acknowledges that the
recalculated costs are below Nebraska's own thresholds for incremental
cost effectiveness ($5,000 per ton) and cost effectiveness per deciview
($40 million per deciview), although EPA notes that Nebraska did not
provide justification or support in the record for their selected cost
effectiveness thresholds.
Therefore, as described here and in section II of this notice, it
appears that Nebraska's NOX BART determination of LNB and
OFA at a rate of 0.23 lbs/MMBtu for GGS Units 1 and 2, by itself, is
not supported by the record. However, as described in section II of
this notice, Nebraska is subject to the Transport Rule and FIP for
NOX at 40 CFR 52.1428. EPA has found that the trading
programs in the Transport Rule achieve greater reasonable progress
towards the national goal of achieving natural visibility conditions in
Class I areas than source-specific BART in those states covered by the
Transport Rule.\20\
---------------------------------------------------------------------------
\20\ See Regional Haze: Revisions to Provisions Governing
Alternatives to Source-Specific BART Determinations, Limited SIP
Disapprovals, and Federal Implementation Plans, 77 FR 33642 (June 7,
2012).
---------------------------------------------------------------------------
Given the emission reductions provided by the NOX
emission limits associated with Nebraska's NOX BART
determination of LNB and OFA for GGS Units 1 and 2, which strengthen
the Nebraska SIP, in conjunction with the existing Transport Rule FIP
which already applies to Nebraska and has been determined to provide
greater reasonable progress than BART, in today's action, EPA is
finalizing its proposed approval of Nebraska's SIP as satisfying the
requirements of the Regional Haze Rule with respect to BART for
NOX, and therefore do not inquire further here as to whether
the cost effectiveness of SCR is low enough and the associated deciview
improvement significant enough to reasonably determine that SCR is BART
for GGS Units 1 and 2.
Comment 25: One commenter notes that Nebraska rejected SCR on the
basis that it was not cost effective on an incremental basis, a metric
which the commenter believes was given undue weight. The commenter
contends that if the overestimated costs were corrected even slightly,
the incremental cost per ton would be under Nebraska's ``arbitrary''
threshold for incremental cost effectiveness of $5,000 per ton.
The commenter asserts that the incremental visibility benefits of
SCR at GGS are significant. The commenter notes that the control
efficiency of SCR used in the State's analysis is less than what the
technology is capable of achieving, and if modeling was conducted at a
more stringent rate, visibility benefits would be even greater.
The commenter highlights an EPA Region 8 BART decision for North
Dakota, requiring SNCR and LNB/separated OFA at an incremental cost of
$5,441 per ton at a facility where the incremental visibility benefit
was only 0.105 dv.\21\
---------------------------------------------------------------------------
\21\ 77 FR 20894 (April 6, 2012); proposed at 76 FR 58570 (Sept.
21, 2011).
---------------------------------------------------------------------------
Response 25: As stated in response 24, we did adjust Nebraska's
cost estimations, and found that the incremental cost for SCR at GGS
was likely closer to $3,662 per ton, rather that the State's estimate
of $5,445 per ton. The commenter correctly suggests that this adjusted
cost is less than Nebraska's stated cost effectiveness threshold of
$5,000 incremental cost per ton. We agree with the commenter that the
State did not support its chosen thresholds in the record.
We agree with the commenter's suggestion that if the visibility
modeling had been conducted at a more stringent control rate of 0.05
lbs/MMBtu, which an SCR is capable of achieving, the visibility
improvements would likely be greater than what is stated in Nebraska's
SIP submission, and within a range many states and EPA have found to be
significant for control.
Because of some of the deficiencies highlighted by the commenters,
we are not able to conclude that the State's NOX BART
determination was supported by the record.
We respond to comments about the control efficiency of SCR in
response 27.
In today's action, EPA determined that Nebraska's NOX
BART determination for GGS is not supported by the record, therefore,
the commenter's suggestion that EPA's approval of Nebraska's
NOX BART determination for GGS is inconsistent with EPA's
action on North Dakota's regional haze SIP is no longer applicable. In
today's action, given the emission reductions provided by the
NOX limits associated with Nebraska's NOX BART
determination of LNB and OFA for GGS Units 1 and 2, which strengthen
the Nebraska SIP, in conjunction with the existing Transport Rule FIP
which already applies to Nebraska and has been determined to provide
greater reasonable progress than BART, EPA is finalizing its proposed
approval of Nebraska's SIP as satisfying the requirements of the
Regional Haze Rule with respect to BART for NOX. This action
is not inconsistent with EPA's action on North Dakota's regional haze
SIP. In that action, EPA disapproved North Dakota's NOX BART
determination for these Units because the State ``relied on cost
estimates that greatly overestimated the costs of controls'' \22\ and
``the faults in the cost estimates were significant enough that they
resulted in BART determinations for NOX for CCS 1 and 2 that
were both unreasoned and unjustified.'' 77 FR 20900. We note that in
the North Dakota case, the State estimated the costs for SNCR at
$8,551, and EPA's revised cost estimate was $2,500, a reduction in
costs of 71 percent. This overestimation is much greater than the GGS
case, when our analysis only reduced the cost 33 percent. Furthermore,
we note that the visibility impacts of these two sources are different,
making different conclusions about BART plausible.\23\
---------------------------------------------------------------------------
\22\ The state estimated costs for SNCR at $8,551, and EPA's
revised cost estimate was $2,500, a reduction in costs of 71
percent.
\23\ CCS Units 1 and 2 impact the nearest class I area 4.04-4.48
dv, as opposed to the 2.828-3.121 dv impact due to GGS Units 1 and 2
on the nearest Class I area.
---------------------------------------------------------------------------
Once EPA Region 8 disapproved the Great River Energy Coal Creek
Station Units 1 and 2 NOX BART determinations in North
Dakota's SIP, a FIP was required, and EPA conducted its own source-
specific consideration of cost, visibility improvement, and the other
regulatory factors to determine what was appropriate as BART.
Comment 26: We received comments noting that the two Units at GGS
were evaluated in combination. The commenters believe that because the
Units are different sizes and have different existing controls
installed, a separate analysis for the two Units would be more
appropriate. Also, the proposed BART limit was combined across the two
Units, and the commenter asserts that Unit-specific limits are
required.
Response 26: We acknowledge that the pre-control NOX
emissions profiles for Units 1 and 2 at GGS are different. However,
when the commenter conducted a cost analysis for adding SCR for each
Unit individually and adjusting the baseline and control efficiency as
they saw appropriate, their cost conclusions were similar to EPA's. The
commenters calculated the incremental cost to add SCR at a limit of
0.05 lbs/MMBtu to be $3,481 per ton
[[Page 40160]]
for the two Units,\24\ while EPA's calculations showed an incremental
cost of $3,243 at this limit.
---------------------------------------------------------------------------
\24\ As calculated by the commenters, GGS Unit 1's incremental
cost for SCR was $3,399 and Unit 2's incremental was $3,567, for a
two-unit average of $3,481.
---------------------------------------------------------------------------
In terms of visibility analysis, we believe it was reasonable for
the State to combine the two co-located units for purposes of modeling.
Again, we note that when the commenter adjusted the baseline
individually for the two units as they saw fit, the result was nearly
identical to the State's visibility conclusions. The commenters
calculated a visibility improvement of 0.24 dv at Unit 1 and 0.23 dv at
Unit 2, for a two-unit total of 0.46 dv \25\ incremental improvement
from SCR at Badlands and 1.29 dv cumulatively. The State's two-unit
incremental improvement was 0.49 dv at Badlands and 1.27 dv
cumulatively. Therefore, we disagree that an analysis for each unit was
necessary, as it does not appear that it would have yielded a different
BART determination result.
---------------------------------------------------------------------------
\25\ These figures are rounded to two decimal places. Unit 1's
improvement is estimated at 0.238 dv, Unit 2 is 0.225 dv, for a two-
unit total of 0.463 dv.
---------------------------------------------------------------------------
We disagree with the commenter that unit-specific limits are
required. The BART Guidelines, section V state: ``You should consider
allowing sources to `average' emissions across any set of BART-eligible
emission units within a fence line, so long as the emission reductions
from each pollutant being controlled for BART would be equal to those
reductions that would be obtained by simply controlling each of the
BART-eligible units that constitute BART-eligible source.''
Therefore, it was acceptable for the State to average the BART
limits over the two units.
Comment 27: Several commenters stated that Nebraska underestimated
the ability of modern SCR systems to control NOX. Nebraska's
SCR evaluation was conducted at a limit of 0.08 lbs/MMBtu, which
amounts to approximately an 82 percent control efficiency. However, the
commenters present information showing that SCR is capable of achieving
at least a 90 percent control efficiency, and note that the BART
Guidelines require that the most stringent level of control be
evaluated as one of the BART options. The commenters pointed out
several recent Best Available Control Technology (BACT) determinations
and regional haze FIPs which required limits of 0.05 lbs/MMBtu or lower
on a thirty-day rolling average. They state that no information was
presented in the State's NOX BART evaluation indicating that
special circumstances existed which would make the most stringent level
of control unachievable.
Response 27: The commenter presented evidence that a limit of 0.05
lbs/MMBtu for SCR likely should have been analyzed in the State's BART
determination. We acknowledge that other SCR retrofits have resulted in
NOX emission levels lower than 0.08 lbs/MMBtu, and at a
control efficiency greater than 82 percent, the deciview improvement
will likely increase and be in a range that many states and EPA have
found to be reasonable for NOX BART controls.
As discussed previously, we have determined that the State's
NOX BART determination was not supported by the record.
However, in today's action, we are concluding that the combination of
the LNB/OFA controls proposed by the State in combination with the
existing Transport Rule FIP, which already applies to Nebraska,
satisfies the requirements for NOX BART at GGS.
Comment 28: Several commenters also stated that the most stringent
level of control achievable from the use of combustion controls on GGS
Unit 2 needs to be evaluated. They state that Unit 2's existing
NOX emissions (typically between 0.30-0.35 lbs/MMBtu) could
likely be controlled well below the proposed joint limit of 0.23 lbs/
MMBtu with combustion controls.
Response 28: The current annual rate at GGS Unit 2 has varied
between 0.305 and 0.348 from the period 2000-2011. The current rate at
Unit 2 already reflects an older vintage of LNB control. Although it is
possible that a lower rate could be achieved with new combustion
controls, it is unclear what this rate might be and the commenter has
not offered documentation as to why a lower rate could be achieved by
LNB/OFA on this unit. BART analyses by states and EPA have typically
assumed combustion controls to meet a rate of 0.23 lbs/MMBtu for
purposes of evaluation of cost and visibility benefit, therefore, EPA
sees no reason to conclude that the State's analysis of combustion
controls at 0.23 lbs/MMBtu was not reasonable.
Comment 29: We received several comments indicating that SNCR was
prematurely eliminated as an option for NOX BART at GGS.
Nebraska eliminated SNCR from consideration as BART on the basis that
it is not technically feasible because of high exit temperatures. The
commenter cited a similar unit (Boardman power plant operated by
Portland General Electric), in which a contractor found an appropriate
injection location which would make a 25 percent NOX
reduction feasible, at an approximate cost of $14/kW. The commenter
also believes that the two units at GGS are different enough that SNCR
should be evaluated for each unit individually, rather than in
combination.
Response 29: The BART Guidelines state, ``You should document a
demonstration of technical infeasibility and should explain, based on
physical, chemical, or engineering principles, why technical
difficulties would preclude the successful use of the control option on
the emissions unit under review.'' Nebraska's BART analysis presented a
demonstration of why SNCR is technically infeasible for control at GGS
Units 1 and 2. However, as described previously, we are not able to
determine that the State's NOX BART determination was
supported by the record, and thus, EPA is not making a determination on
the feasibility of SNCR as BART at GGS. EPA notes that evaluation of
SNCR cost and control efficiency is unit-specific, so comments
indicating that SNCR was feasible and cost effective at another
facility do not necessarily support a determination that SNCR is
feasible at GGS.
Comment 30: One commenter stated that the costs for SCR
installation were ``under documented''. The commenter suggested that
the cost estimates were missing significant information, such as vendor
quotes, and contended that EPA's proposed approval without this
information was ``arbitrary''. The commenter states that if EPA relied
on this information in decision making, but failed to include it in the
docket, the public's notice and comment rights were violated.
Response 30: EPA did not rely on information that was not in the
docket for this rule. We acknowledge that the vendor quotes provided in
the docket (appendix 10.6 of the SIP) are redacted copies, omitting the
name of the vendor and certain design parameters. However, we believe
that adequate information was presented in order for EPA and the public
to review the BART cost estimations.
I. Comments Regarding SO2 BART at Gerald Gentleman Station
Comment 31: One commenter stated that it agreed with EPA's proposed
disapproval of the BART determination for SO2 controls for
GGS. The commenter stated that EPA appropriately determined that dry
FGD would result in significant visibility improvement at Badlands. The
commenter also stated that it agrees with EPA's proposed disapproval of
Nebraska's long-term strategy. The
[[Page 40161]]
commenter noted that presumptive BART SO2 controls at GGS
were included in the regional modeling that supports the reasonable
progress goals for Class I areas in South Dakota, Colorado, Oklahoma,
and Missouri that are impacted by GGS. The commenter stated that
without SO2 controls at GGS, these Class I areas are likely
not to meet EPA and the States' reasonable progress goals.
Response 31: EPA appreciates the comments in support of today's
action. Comments regarding impact on other states RPGs are addressed in
section III E of this notice.
Comment 32: Several commenters stated that it is within Nebraska's
purview to assign the weight and significance for, and to balance each
of the BART statutory factors. One commenter states that the plain
language of the CAA provides Nebraska with great discretion to balance
the five statutory factors. See 42 USC 7491(g)(2) and 77 FR 12770-12774
(citing 40 CFR 51.308(e)(1)(ii)). The commenter states that in making
its BART determination for GGS, Nebraska followed the BART Guidelines
in evaluating the costs of compliance and non-air quality environmental
impacts, including consideration of the extent to which short-term
environmental gains were being achieved at the expense of long-term
environmental losses and the extent to which there may be an
irreversible or irretrievable commitment of resources. Another
commenter states that through the BART five-factor analysis, Nebraska
eliminated wet and dry FGD as control options for GGS using step 4
(costs of compliance) and, more importantly, the significant non-air
quality environmental impacts, including the unique water resource
restrictions that exist in Nebraska, the costs of obtaining the water,
and the resultant strain on Nebraska's agricultural sector should water
reallocations be required. The commenter asserts that EPA bases its
proposed disapproval on disagreement over the cost of water without
referencing the State's non-air quality determination, the RHR
delegates the determination of the non-air quality environmental
impacts factor to the State, and the commenter referred EPA to its
statements regarding whether the State reasonably considered the
relevant factors in its final rule for South Dakota (77 FR 24845, 24853
(April 26, 2012)).
Response 32: EPA incorporates by reference its response to comments
6 and 9. EPA agrees that states are assigned statutory and regulatory
authority to determine BART and that many past EPA statements,
including those the commenter cited in EPA's approval of South Dakota's
regional haze SIP, have confirmed state authority in this regard.
However, although the states have the freedom to determine the weight
and significance of the statutory factors, they have an overriding
obligation to come to a reasoned determination. While states have
authority to exercise different choices in determining BART, the
determinations must be reasonably supported.
EPA based its decision to disapprove Nebraska's SO2 BART
determination for GGS on a number of issues, including errors in
Nebraska's cost analysis for FGD controls, the reasonableness of the
costs of controls, the potential for significant visibility improvement
as a result of installing FGD or DSI, and improper rejection of DSI.
The availability and cost of obtaining water was factored into the cost
of controls and the costs were still found to be reasonable,
particularly given the significant visibility benefits as a result of
controls. Furthermore, as EPA stated in its proposal, DSI does not
consume as much water as FGD, and is a viable option for control of
SO2. For those reasons, we found that Nebraska's blanket
dismissal of any SO2 control under the ``non-air quality
environmental impact'' factor was unreasoned.
Comment 33: One commenter questioned EPA's justification for
disagreeing with Nebraska's determination that DSI was not reasonable
for BART control. The commenter said that Nebraska's reasons for
eliminating DSI as BART control were that the technology was relatively
new for units the size of GGS Units 1 and 2, and the cost would exceed
Nebraska's dollars per deciview threshold (Nebraska estimated
$95,189,314/dv/year for DSI, exceeding its threshold of $40 million per
deciview per year).
Response 33: At $2,058 per ton, and a visibility improvement of
0.86 dv at the closest Class I area, EPA considers DSI to be cost
effective, and the visibility improvements to be significant at the
closest Class I area.
Visibility improvement for DSI was only evaluated at Badlands, so
we are unable to fully analyze Nebraska's use of the dollars per
deciview threshold in this case, as cumulative benefits were not
modeled. However, because of the proximity and similarity of impacts
between Badlands and Wind Cave, we believe it is reasonable to assume
similar visibility improvement would be seen at Wind Cave from the
installation of DSI. The annualized cost of DSI at the two units is
$81,958,000, and if similar visibility improvements were seen at Wind
Cave (0.86), the cost per deciview would be $47,650,000.\26\ This
approaches Nebraska's threshold for reasonableness on a dollars per
deciview basis.\27\ If the benefit on the other Class I areas GGS
impairs was added in to this calculation, the cost per deciview would
likely be at or under Nebraska's threshold.
---------------------------------------------------------------------------
\26\ $81,958,000 / (0.86 x 2) = $47,650,000.
\27\ Although EPA notes that Nebraska did not provide
justification or basis for its thresholds in the record.
---------------------------------------------------------------------------
Nebraska did not present information in its SIP submission showing
that DSI is technically infeasible at units the size of GGS as a basis
to eliminate it from the consideration for BART, and in fact evaluated
DSI as a feasible control.
Comment 34: One commenter stated that our proposed revisions to FGD
cost estimates are not correct. In the TSD for our proposed action, we
did a detailed evaluation of the cost estimates provided by Nebraska,
and noted where we believed costs to be overestimated or
inappropriately included. The commenter incorporated by reference two
contractors' assessments of our evaluation.
Response 34: The contractors' comments and our responses are
described in detail in Appendix G, ``Responses to Comments and
Revisions to EPA's Evaluation of Cost of FGD Controls at NPPD GGS Units
1 and 2.'' Overall, after making adjustments to our cost estimates
based on these comments, the cost of controls emerge as even more cost
effective than our original estimate, as previously shown in Table 1.
These revisions do not change our conclusions that Nebraska
overestimated the costs of FGD controls. Our revised analysis reduces
the estimated cost of controls from $108,535,690 (annualized) to
between $66,530,865 and $69,519,846--a 36 to 39 percent reduction in
cost.
J. Comments Regarding Water Availability To Operate FGD
Comment 35: Many commenters reiterated statements in the SIP
regarding water availability and concerns about the use of water
resources to operate air pollution controls. In order to obtain the
water necessary to operate FGD, NPPD would need to obtain the rights to
groundwater resources in the over-appropriated Twin Platte Basin. In
its SIP, under the ``non-air environmental impact'' factor of the BART
analysis for SO2 control at GGS, Nebraska determined that
this consumptive water use rendered the control unreasonable.
Response 35: First, we note that today's action does not require
[[Page 40162]]
installation of FGD; instead, it relies on the trading program of the
Transport Rule, which does not dictate specific controls for specific
units, to achieve visibility protection.
EPA acknowledges the concerns about water availability, and
recognizes the great care that the State takes to manage limited water
resources. We also acknowledge the goals of the Integrated Management
Plans (IMP) and obligations of the Platte River Recovery Plan.
However, as we said in our proposal, we do not believe that the
water is unattainable, but that it can be obtained at a cost. See
response to comment 36 about how these costs were taken into account in
estimating the overall cost of controls.
We also note that there are BART control options which do not
require nearly the amount of consumptive use of water, such as DSI,
which is cost effective and achieves significant visibility
improvement. FGD was not the only control option for SO2 at
GGS, so it is not acceptable to use concerns about water availability
to rule out all SO2 controls for BART.
Comment 36: Two commenters state that the cost of acquiring water
and land has increased since the time the SIP was submitted. The
Nebraska Association of Resources Districts states that land costs in
the basin have exceeded $10,000/acre and water rights have been valued
up to $5,000 per acre-foot. NDEQ states that since the SIP was
submitted in July 2011, land values have increased in the area, such
that in March 2012, a farm with 330 acres of irrigated land sold for
$4,303 per acre. They estimate that this is a 7.5 percent increase in
land value from the cost estimates utilized in the SIP.
Response 36: We recalculated the costs of obtaining water to
operate wet and dry FGD based on these comments.
As seen in Table 3, when these higher land costs are considered, it
raises the cost effectiveness of wet FGD from $2,932 per ton to $3,245
per ton, an increase of $313 per ton. These figures should be
considered to be conservative for several reasons. First, NPPD's
estimates of water use to operate wet FGD were 31 percent higher than
the average of other facilities that NDEQ provided in its SIP. Second,
we did not include any rental income from the property, value due to
production of dry land crops, or the future value of the land in 20
years in calculating these costs. Third, as noted in the proposal,
although we did not review the BART cost analysis for wet FGD, many of
the same cost overestimations are likely present.
For dry FGD, using our adjusted costs and adding in the higher
costs of land and water, the costs are still reasonable, ranging from
$1,897-$2,107 per ton.
Table 3--Cost of Obtaining Water Rights To Operate FGD at GGS
--------------------------------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------------------------------
Wet FGD
Dry FGD
------------------------------------------------------------------------------------------------------------------
Estimation in Estimation EPA's estimates, plus water
SIP revised from
comments
--------------------------------------------------------------------------------------------------------------------------------------------------------
Acre-feet per year required.......... 3,877 3,877 3,238 3,238 3,238.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Acres of land required............... 22,000 22,000 \a\ 18,374 18,374 18,374.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cost of land per acre................ $4,000 $10,000 $10,000 $10,000 $10,000.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total cost to obtain water offsets... $88,000,000 $220,000,000 $183,740,005 $183,740,005 $183,740,005.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized costs of obtaining water $8,306,590 $20,766,444 $17,343,757 $17,343,757 $17,343,757.
offsets (7% over 20 years).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized cost of FGD............... $108,450,000 $108,450,000 $66,530,865 $67,871,854 $69,519,846.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total annualized cost, FGD + water $116,756,590 $129,216,444 $83,874,622 $85,215,611 $86,863,603.
offsets.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Emission Rate (lbs/MMBtu)............ 0.15 0.15 0.15 0.11 0.06.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Tons SO2 reduced..................... 39,815 39,815 39,815 42,473 45,797.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cost effectiveness ($/ton)........... $2,932 $3,245 $2,107 $2,006 $1,897.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Average visibility improvement 0.78 0.78 0.78 unknown unknown.
(Badlands).
--------------------------------------------------------------------------------------------
Average visibility improvement 3.17 3.17 3.17
(Cumulative).
--------------------------------------------------------------------------------------------
$/dv (Badlands)...................... $149,687,936 $165,662,108 $107,531,566
$/dv (Cumulative).................... $36,831,732 $40,762,285 $26,458,871
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Assumes 0.176227 acre feet of water available per acre of land.
Comment 37: One commenter pointed out that our analysis of costs to
operate FGD did not include loss of agricultural revenue. The State
raised concerns in its SIP about the impact to the Nebraska economy if
irrigated cropland were to be changed to less-valuable dry land
farming.
Response 37: While we acknowledge that there may be impacts to the
economy that go beyond what was included in the BART analysis, we
believe that it would be inconsistent to include the regional loss of
agricultural revenue in a BART analysis. BART analyses should be done
using EPA's Cost Control Manual, or a similar method for standardizing
how costs are taken into account. These types of regional economic
influences, both positive and negative, are not included in BART
analyses as direct costs of installing and operating emission controls.
If such impacts were to be
[[Page 40163]]
considered, different methodologies and different notions of cost
effectiveness would have to be developed. While we are sensitive to
broader economic impacts, they are not part of our focused analysis of
the BART factors in making a BART determination.
Comment 38: We received comments noting that the water requirements
of FGD are typically a very small percentage of the water use
requirements for a plant overall, which are largely for cooling, and it
is not reasonable to contend that this de minimis increase in water use
is prohibitive. The commenter also pointed out that GGS uses a ``once-
through'' system, which wastes significant amounts of water. The
commenter notes that water saving options that have been employed in
other water restricted locations could be employed at GGS to lessen the
strain on water resources.
Response 38: In general, we agree with the commenter that there are
likely efficiency measures which could be undertaken to reduce water
use if FGD were installed.
Comment 39: One commenter states that any EPA-imposed regulation at
GGS that would cause a new consumptive use of water in the over-
appropriated Platte River Basin would also increase the competition for
water to meet the needs of federally listed threatened and endangered
species. To that end, the commenter encouraged EPA to re-initiate
consultation with the U.S. Fish and Wildlife Service on the water
impacts to the listed species as well as the air impacts.
Response 39: The FIP imposed by EPA as a result of today's action
does not, in and of itself, cause a new consumptive use of water in the
Platte River Basin, therefore, the commenter's initial premise is not
correct. Furthermore, the Department of Interior has had input into
this BART determination and rulemaking process. The U.S. Fish and
Wildlife Service is part of the U.S. Department of the Interior, which
is a FLM for Class I areas under the RHR. As such, the RHR requires the
State to provide the FLM with an opportunity for consultation at least
60 days prior to any public hearing, including an opportunity for the
FLM to discuss their assessment of visibility impairment in any Class I
area and to make recommendations on the development of the RPG and
implementation of strategies to address visibility impairment. 40 CFR
51.308(i). In its regional haze SIP, Nebraska stated it provided the
FLMs a 60-day review period of the draft BART permits and related
materials for GGS and NCS beginning July 1, 2008, as well as a 60-day
review period for the draft regional haze SIP beginning November 18,
2010. In addition, the FLMs had opportunities to provide comments
during Nebraska's public comment period for its regional haze SIP
submission, as well as during the public comment period for today's
action. During these public comment periods, the Department of the
Interior, in its comments, did not, to EPA's knowledge, raise concerns
about any impacts to endangered species if controls were required at
GGS, and in fact, encouraged EPA to promulgate a source-specific BART
FIP requiring SO2 controls for GGS Units 1 and 2 at 0.06 lb/
mmBtu on a 30-day rolling average, which would likely correspond to FGD
controls requiring water. EPA also notes that DOI provided input on the
national Transport Rule ``Better than BART'' rulemaking.\28\
---------------------------------------------------------------------------
\28\ 77 FR 33642 (June 7, 2012).
---------------------------------------------------------------------------
K. Comments Regarding the Transport Rule FIP
Comment 40: One commenter made a factual error in their comment
letter, stating that, ``EPA simultaneously proposed a federal
implementation plan (`FIP') requiring installation of flue gas
desulfurization (`FGD') technology at GGS to correct what it perceives
to be deficiencies in Nebraska's BART determination.''
Response 40: The FIP portion of this action does not in fact
require FGD controls, but rather relies on the Transport Rule as an
alternative for source-specific BART.
Comment 41: One commenter referenced and incorporated its February
28, 2012, comments on EPA's proposal that the Transport Rule is
``Better than BART'' (Docket ID No. EPA HQ-OAR-2011-0729) and its March
22, 2012 comments on EPA's Direct Final Rule related to state emissions
budgets under the CSAPR (Docket ID No. EPA-HQ-2009-0941). This
commenter also incorporated by reference the February 28, 2012,
comments made by Earthjustice on EPA's proposal that the CSAPR is
``Better than BART'' (Docket ID No. EPA HQ-OAR-2011-0729). The
commenter stated that it is incorporating these comments by reference
because these actions are ``inherently related'' to this action.
Response 41: In today's rule, EPA is taking final action on the
partial approval and partial disapproval of Nebraska's regional haze
SIP. EPA is also taking final action on a FIP relying on the Transport
Rule to satisfy BART for SO2 at one source to address
deficiencies in the State's plan. EPA made the proposed findings
referenced by the commenter in separate actions and the commenter is
merely reiterating and incorporating by reference its comments on those
separate actions. These comments are therefore beyond the scope of this
rulemaking and are or will be addressed in those separate actions.
Comment 42: Two commenters point out that EPA cannot rely on the
Transport Rule ``Better than BART'' finding to meet its BART FIP
obligation for GGS because the Transport Rule is not currently in
effect and its fate is uncertain. 77 FR 33642 (June 7, 2012). The D.C.
Circuit stayed the Transport Rule on December 30, 2011, pending review
on the merits of several consolidated petitions for review of the rule.
EME Homer City Generation, L.P. v. EPA, No. 11-1302 (D.C. Cir. Dec. 30,
2011). As a result of the stay, the Transport Rule currently has no
legal effect and is not a binding legal requirement on states and
covered sources. EPA cannot rely on its Transport Rule to meet BART or
any other requirement until the stay is lifted. Furthermore, a
commenter points out that the Court is reviewing several petitions from
states and the industry, and the outcome of the Court's review is
uncertain.
Response 42: EPA disagrees that we cannot rely on the Transport
Rule because of the stay imposed by the DC Circuit. EPA bases this
conclusion on the long-term focus of our analysis underlying today's
action.
While the Transport Rule is not currently enforceable, the air
quality modeling analysis underlying EPA's 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 the 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 DC Circuit, EPA cannot move forward with
reliance on EPA's determination that it provides for greater reasonable
progress than BART. EPA does not view the stay imposed by the DC
Circuit pending review of the underlying rule as undermining EPA's
conclusion that the Transport Rule will have a greater overall positive
impact on
[[Page 40164]]
visibility than BART both during the period of the first long-term
strategy for regional haze and going forward into the future. EPA
recognizes, as the commenter suggests, that EPA may be obliged to
revisit the Nebraska regional haze SIP and FIP if the rule is not
upheld, or if it is remanded and subsequently revised. However, EPA
does not consider it appropriate to await the outcome of the DC
Circuit's decision on the Transport Rule before moving forward with the
regional haze program as EPA believes the Transport Rule has a strong
legal basis, and a judicial decree requires the EPA to meet its
statutory obligations to have a FIP or an approved SIP meeting the
Regional Haze Rule requirements in place by June 15, 2012.\29\
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\29\ National Parks Conservation Association, et al. v. Lisa
Jackson, Civil Action No. 1:11-cv-01548 (ABJ) (D.D.C. March 30,
2012).
---------------------------------------------------------------------------
Comment 43: Two commenters state that given EPA's disapproval of
Nebraska's SO2 BART determination for GGS, EPA must
promulgate a source-specific BART FIP with SO2 limits
reflective of the addition of FGD controls at GGS. One commenter
contends that due to the issuance of a finding that Nebraska failed to
submit its regional haze SIP in a timely manner, EPA is obligated to
either promulgate full approval of Nebraska's regional haze SIP or
promulgate a FIP. The commenters state that EPA cannot propose to
disapprove Nebraska's SO2 BART determination for GGS without
concurrently proposing a FIP. One commenter stated that the GGS Units
could meet much lower SO2 emission rates than 0.10 lbs/MMBtu
analyzed by Nebraska with installation of new FGD systems, either wet
or dry. They restated our conclusion that FGD at GGS with could achieve
0.06 lb/MMBtu,\30\ a 90 percent control efficiency. The commenters
point out the significant visibility improvements available from this
level of control, greater than the improvement modeled by Nebraska.
(Nebraska modeled rates of 0.15 lbs/MMBtu and 0.10 lbs/MMBtu, but no
more stringent controls). The commenter argues that EPA's proposed FIP
relying on the Transport Rule as an alternative to BART is legally and
technically unjustified; installation of FGD systems at a rate of 0.06
to 0.15 lbs/MMBtu is cost effective and results in significant
visibility improvement; and it is arbitrary, capricious and
unreasonable for EPA to require otherwise. In addition, the commenter
believes additional controls are routinely being required in the
application and implementation of regional haze in other states and for
other sources throughout the country.\31\ Both commenters contend that
EPA should instead promulgate a source-specific BART FIP requiring
SO2 controls for GGS Units 1 and 2 at a limit of 0.06 lbs/
MMBtu on a 30-day rolling average.
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\30\ 42 FR 12780 (March 2, 2012).
\31\ The commenter cites as examples, the final FIPs for the San
Juan Generating Station in New Mexico (76 FR 52388) and Oklahoma (76
FR 81727) and the proposed FIP for North Dakota (76 FR 58570).
---------------------------------------------------------------------------
Response 43: EPA agrees with the commenter that in the absence of
an approvable BART determination for SO2 for GGS, EPA is
obligated to promulgate a FIP to satisfy the CAA requirements under
section 110(c)(1), but EPA disagrees that this necessarily requires a
source-specific SO2 BART FIP for GGS. At the point EPA
becomes obligated to promulgate a FIP, EPA steps into the State's
shoes, and must meet the same requirements, has flexibility to make
technical judgments within the bounds of the rule, and, as discussed
previously in this notice, is not statutorily obligated to impose
source-specific controls. The regional haze rule provides certain
flexibilities to the state (and to EPA, in the case of a FIP) to
determine appropriate BART. Rather than requiring source-specific BART
controls, EPA has the flexibility pursuant to 40 CFR 51.308(e)(3) to
adopt an emissions trading program or other alternative program as long
as the alternative provides greater reasonable progress towards
improving visibility than BART. EPA recently finalized its rule
determining that the trading programs in the Transport Rule, achieve
greater reasonable progress towards the national goal of achieving
natural visibility conditions in Class I areas than source-specific
BART. 77 FR 33642 (June 7, 2012). While EPA opted to promulgate source-
specific SO2 FIPs in other states, such as in Oklahoma and
New Mexico to address deficiencies in BART determinations, in its June
7, 2012 rulemaking, EPA also promulgated FIPs for other states relying
on CSAPR to remedy deficiencies in BART determinations. See also EPA's
response to comments 3, 6, and 8, which are incorporated by reference.
Comment 44: Two commenters urged EPA to require specific
SO2 controls on GGS as a geographic enhancement under EPA's
proposed rulemaking revising the RHR to allow the trading programs in
the Transport Rule as an alternative program to BART.\32\ One commenter
suggests that this may be done by proposing a geographic enhancement to
the Transport Rule as a FIP as part of the action on the Nebraska
regional haze plan, or by proposing a supplement to the Transport Rule
to require lower emission limits for Nebraska as a geographic
enhancement, or by removing Nebraska from the finding that the
Transport Rule is better than BART.
---------------------------------------------------------------------------
\32\ See 76 FR 82224, footnote 13, which describes how states
may also include in their SIPs provisions applicable to a specific
source even if no FLM agency has made such a reasonable attribution.
---------------------------------------------------------------------------
Response 44: The primary purpose of EPA's existing regulatory
language regarding geographic enhancements, at 40 CFR 51.308(e)(4), is
to allow a market-based system to accommodate actions taken under the
RAVI provisions. No RAVI finding has been certified that would apply to
GGS. A state may always choose to include in their SIPs provisions
applicable to a specific source even if RAVI is not triggered. In
today's action, EPA is finalizing its partial FIP relying on the
Transport Rule as an alternative to SO2 BART for GGS, and
choosing not to pursue any geographic enhancements. This is based on
EPA's separate rule finding that the trading programs of the Transport
Rule meet the Regional Haze Rule's requirement that the average
difference in visibility improvement at all Class I areas be greater
under the alternative program. Therefore, EPA has met the minimum
requirements for SO2 BART for GGS by relying on the
Transport Rule. The commenters' suggestions that EPA should propose a
supplement to the Transport Rule to require lower emission limits for
Nebraska as a geographic enhancement, or remove Nebraska from the
finding that the Transport Rule is better than BART are beyond the
scope of today's action.
Comment 45: EPA received many comments regarding EPA's rule
allowing the trading programs in the Transport Rule as an alternative
to BART. Several commenters strongly disagreed that EPA's rulemaking
(Docket ID No. EPA-HQ-OAR-2011-0729) revising the Regional Haze Rule to
allow the trading programs in the Transport Rule as an alternative
program to BART provides greater visibility improvement than source-
specific BART at GGS. Commenters pointed out what they contend to be
errors in EPA's IPM modeling assumptions for GGS emission rates for the
2014 base case and 2014 CSAPR scenarios; omission of GGS Unit 2
emissions and under predicted impacts at Mingo Wilderness Area from the
IPM modeling; reliance on outdated, lower
[[Page 40165]]
Transport Rule emission budgets for several states without remodeling
to account for the revised, higher emission budgets; \33\ and negative
effects on the ability of each state's Class I areas to make reasonable
progress towards the national visibility goal of achieving natural
background conditions by 2064. One commenter provides that the language
of the CAA at section 169A(b)(2)(A) and (c) requires source-specific
BART emission limits and EPA may only exempt a source from BART based
on certain demonstrations that the source does not cause or contribute
to significant impairment of visibility, after sufficient notice and
comment rulemaking and concurrence by the appropriate FLM. Commenters
requested that EPA remove Nebraska from the determination that the BART
alternative is better than source-specific BART controls in Nebraska.
---------------------------------------------------------------------------
\33\ See 77 FR 10324 (Feb. 21, 2012) and 77 FR 10342 (Feb. 21,
2012).
---------------------------------------------------------------------------
Response 45: In today's rule, EPA is taking final action on the
partial approval and partial disapproval of Nebraska's regional haze
SIP and the FIP relying on the Transport Rule to satisfy BART for
SO2 at one source to address the approvability issues. The
rule referenced by the commenter is a separate action and these and
similar comments were made in the context of that separate action.
These comments are therefore beyond the scope of this rulemaking. These
comments, and those similar to it, on the Transport Rule ``Better than
BART'' rulemaking have been addressed, as appropriate, by EPA in its
final action on the December 30, 2011, proposed rule. 77 FR 33642 (June
7, 2012). See also EPA's response to comment 6, which is incorporated
by reference.
Comment 46: A commenter noted that the Transport Rule will not
require additional SO2 controls for EGUs in Nebraska, and
questioned the validity of an approach that appears to conclude that no
SO2 reductions is better than a BART reduction of over
28,000 tons per year. The commenter contends that by averaging across
all Class I areas, EPA is allowing states like Nebraska to benefit from
controls in other states and to install less controls under the
Transport Rule than would be required by source specific BART.
Response 46: EPA disagrees with the commenter's characterization of
EPA's conclusions related to the Transport Rule ``Better than BART''
rulemaking. EPA refers the commenter to EPA's final action on the
December 30, 2011, proposed rule, 77 FR 33642 (June 7, 2012), where EPA
demonstrated that, on average, the Transport Rule results in greater
average visibility improvement at affected Class I areas compared to
application of BART nationwide.
L. Comments Regarding BART at Nebraska City Station
Comment 47: One commenter stated that they believe that similar
issues with regard to estimated cost of controls likely persisted
throughout the cost estimations for BART at Nebraska City Station, and
encouraged EPA to revisit these analyses.
Response 47: The commenter's statements did not contain any detail
or evidence to indicate that we must find the State's evaluation flawed
and re-open it to conduct our own independent analysis.
Furthermore, our approval of the NOX and SO2
BART determination at Nebraska City Station rests on the State's
determination that the minimal visibility improvement available did not
warrant the costs of the next level of controls. For NOX,
Nebraska concluded that based on the high incremental cost of $8,203
\34\ per ton for the low incremental visibility improvement of 0.11 dv
at Hercules Glades, requiring SCR was not warranted. BART for
NOX at OPPD NCS Unit 1 was determined to be the installation
of LNB/OFA with an emission limitation of 0.23 lbs/MMBtu.
---------------------------------------------------------------------------
\34\ ($38,210,000 - $1,690,000)/(14,633 - 10,181) = $8,203.
---------------------------------------------------------------------------
Similarly, for SO2, Nebraska concludes that the cost of
installing FGD ($1,636 per ton) \35\ is not warranted considering the
amount of visibility improvement (0.44 dv maximum improvement at
Hercules Glades), and therefore proposes no SO2 controls as
BART for NCS Unit 1. EPA notes that the closest Class I areas to this
Unit are 500 km away or greater.\36\ NCS Unit 1's baseline impact is
0.65 dv at Hercules Glades, and 0.46 dv at Wichita Mountains, for a
cumulative baseline impact of 1.11 dv.\37\ The potential improvement
from installing FGD at the presumptive rate of 0.15 lbs/MMBtu is 0.25
dv on average at Hercules Glades, and 0.23 dv on average at Wichita
Mountains, for a cumulative improvement of 0.48 dv. With an annualized
cost of $34,720,000, this makes the dollar per deciview for presumptive
SO2 control at NCS $72,333,333, which is well over the
State's threshold of $40 million/deciview.
---------------------------------------------------------------------------
\35\ Cost per ton is $1,636 at the limit of 0.10 lbs/MMBtu.
\36\ Distance from Nebraska City Station to Hercules Glades is
498 km; to Mingo is 630 km; and to Wichita Mountains is 695 km.
\37\ As shown in the TSD, these calculations are based on a
three-year average, 2001-2003. Maximum baseline impact at Hercules
Glades was 0.933 dv in 2001, and 0.686 dv at Wichita Mountains in
2003. These are the only two Class I areas which were impacted more
than 0.5 dv as shown by the CALPUFF modeling for the baseline
period.
---------------------------------------------------------------------------
M. Comments Regarding Interstate Transport
Comment 48: One commenter stated that EPA failed to ensure that the
Nebraska regional haze SIP will not interfere with interstate transport
visibility requirements. The commenter cites to section 110(a)(2)(D)(i)
of the CAA which requires states to submit new SIPs that provide for
the implementation, maintenance, and enforcement of a new or revised
standard within three years after promulgation of such standard, and
specifically to section 110(a)(2)(D)(i), which applies to interstate
transport of emissions. This ``interstate transport'' prong requires
that SIPs be adopted to prohibit any source from emitting pollution
which will ``(I) contribute significantly to nonattainment in, or
interfere with maintenance by, any other state with respect to any such
national primary or secondary ambient air quality standard, or (II)
interfere with measures required to be included in the applicable
implementation plan for any other state under part C of this subchapter
to prevent significant deterioration of air quality or to protect
visibility.'' The commenter points out that EPA issued a finding that
Nebraska failed to submit an interstate transport SIP to address the
1997 ozone and particulate matter NAAQS, after which Nebraska submitted
an interstate transport SIP submittal, and EPA approved it, stating,
``At this time, it is not possible for NDEQ to accurately determine
whether there is interference with measures in another state's SIP
designed to protect visibility, which is the fourth element that was
addressed. Technical projects relating to visibility degradation are
under development. Nebraska will be in a more advantageous position to
address the visibility projection requirements once the initial
regional haze SIP has been developed.'' 72 FR 71246 (Dec. 17, 2007).
The commenter states that in its approval of the transport visibility
prong, EPA's reliance on the regional haze SIP and caveat that in a
vacuum the interstate transport requirements may be insufficient to
ensure adequate visibility protection, necessitates analysis of the
regional haze plan in conjunction with interstate transport
requirements.
Response 48: As the commenter notes, on April 25, 2005, EPA
published a
[[Page 40166]]
``Finding of Failure to Submit SIPs for Interstate Transport for the
National Ambient Air Quality Standards for 8-Hour Ozone and
PM2.5.'' 70 FR 21147. This included a finding that Nebraska
and other states had failed to submit SIPs to address interstate
transport of emissions affecting visibility and started a 2-year clock
for the promulgation of FIPs by EPA, unless the states made submissions
to meet the requirements of section 110(a)(2)(D)(i) and EPA approved
such submissions. Id.
On August 15, 2006, EPA issued guidance on this topic entitled
``Guidance for State Implementation Plan (SIP) Submissions to Meet
Current Outstanding Obligations Under section 110(a)(2)(D)(i) for the
8-Hour Ozone and PM2.5 National Ambient Air Quality
Standards'' (2006 Guidance). We developed the 2006 Guidance to make
recommendations to states for making submissions to meet the
requirements of section 110(a)(2)(D)(i) for the 1997 8-hour ozone
standards and the 1997 PM2.5 standards.
As identified in the 2006 Guidance, the ``good neighbor''
provisions in section 110(a)(2)(D)(i) of the CAA require each state to
have a SIP that prohibits emissions that adversely affect other states
in ways contemplated in the statute. Section 110(a)(2)(D)(i) contains
four distinct requirements related to the impacts of interstate
transport. The SIP must prevent sources in the state from emitting
pollutants in amounts which will: (1) Contribute significantly to
nonattainment of the NAAQS in other states; (2) interfere with
maintenance of the NAAQS in other states; (3) interfere with provisions
to prevent significant deterioration of air quality in other states; or
(4) interfere with efforts to protect visibility in other states. With
respect to establishing that emissions from sources in the State would
not interfere with measures in other states to protect visibility--
which is the subject of this particular comment--the 2006 Guidance
recommended that states make a submission indicating that it was
premature, at that time, to determine whether there would be any
interference with measures in the applicable SIP for another state
designed to ``protect visibility'' until the submission and approval of
regional haze SIPs.
On December 17, 2007, EPA approved Nebraska's SIP revisions for
addressing the ``good neighbor'' provisions of the CAA in a direct
final rulemaking. 72 FR 71245. EPA did not receive any comments on the
2007 SIP action. In today's action, EPA is not re-opening the 2007
approval of Nebraska's SIP as it relates to the CAA section
110(a)(2)(D)(i). Today's action also does not serve as an approval or
disapproval of any of Nebraska's section 110(a) infrastructure SIP
submittals as they pertain to any NAAQS; those actions are not relevant
to today's action and will be addressed in separate rulemakings as
appropriate.
Even if the visibility prong of section 110(a)(2)(D)(i), as it
relates to the 1997 NAAQS and EPA's 2007 approval action, were relevant
to this rulemaking, the requirements of the Act and the regional haze
rule are satisfied by an approved SIP, a promulgated FIP, or a
combination of a SIP and FIP. The control measures approved and
promulgated for Nebraska in today's action will serve to prevent
sources in Nebraska from emitting pollutants in amounts that will
interfere with efforts to protect visibility in other states and thus
satisfy the ``interference with visibility protection'' sub-element of
CAA section 110(a)(2)(D)(i)(II).\38\
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\38\ Although the SIP is deficient as described elsewhere in
today's action, the partial FIP addresses those deficiencies, and no
further action is needed to address the visibility requirements.
However, Nebraska may revise its SIP and submit the revision to us,
to address the requirements covered by the FIP. Should such a
revision meet CAA requirements, we would replace our FIP with
Nebraska's SIP revision. We encourage the State to revise its SIP to
address these requirements.
---------------------------------------------------------------------------
N. Technical Corrections
Comment 49: OPPD pointed out an error in the Nebraska City Unit 1
p.m. potential to emit in Table 1 of our proposal, ``Facilities with
BART-Eligible Units in Nebraska.'' OPPD stated that the listed
potential to emit for PM (43,792 tons per year) is too high, and
estimated it to be 3,415 tons per year.
Response 49: Table 1 is a listing of the units in Nebraska which
are BART-eligible based on source category, date, and emissions. The
43,792 figure came from Appendix 10.1 of the SIP. In response to this
comment, we checked with the State, who confirmed that the figure was
too high, and estimated the potential to emit to be 2,968 tons per
year.\39\ Changing this figure does not change the determination that
Unit 1 at Nebraska City Station is BART-subject.
---------------------------------------------------------------------------
\39\ Email from Shelley Schneider, NDEQ to Chrissy
Wolfersberger, EPA, dated May 17, 2012.
---------------------------------------------------------------------------
Comment 50: NPS commented that Table 5 of the Technical Support
Document, ``BART subject facilities in Nebraska,'' contained a
numerical error. Impacts should read less than 0.5 dv rather than less
than 0.05 dv.
Response 50: The table is corrected to read as follows:
Table 5--BART-Subject Facilities in Nebraska
----------------------------------------------------------------------------------------------------------------
CALPUFF modeled impacts > 0.5 dv
Facility Units Class I area -----------------------------------------------
2001 2002 2003
----------------------------------------------------------------------------------------------------------------
OPPD Nebraska City Station... 1............... Hercules Glades 0.933 0.556 < 0.5
Wichita < 0.5 < 0.5 0.686
Mountains.
NPPD Gerald Gentleman Station 1 & 2........... Badlands....... 2.845 2.828 3.121
Wind Cave...... 2.452 2.591 2.127
Wichita 1.032 1.206 1.392
Mountains.
Rocky Mountain. 1.136 1.246 1.053
Hercules Glades 0.826 0.616 0.594
----------------------------------------------------------------------------------------------------------------
IV. Regulatory Text
EPA proposed a FIP relying on the Transport Rule as an alternative
to BART for SO2 emissions from GGS. Accordingly, EPA
proposed to revise 40 CFR Part 52, Subpart CC to reflect EPA's proposed
determination that the requirements of 40 CFR 51.308(e) with respect to
emissions of SO2 from NPPD, GGS Units 1 and 2 will be met by
40 CFR 52.1429, the Transport Rule FIP requirements for SO2
emissions in Nebraska. In today's action, EPA made minor clarifying
changes to the FIP language in 40 CFR 52.1435 to better set forth the
scope and applicability of EPA's disapproval and FIP.
[[Page 40167]]
V. Statutory and Executive Order Requirements
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action will apply to one facility and is therefore not a rule
of general applicability. In addition, this rule does not impose new
mandates, because EGUs in Nebraska are subject to the requirements of
the Transport Rule independently of this action. Therefore, this action
is not a ``significant regulatory action.'' This type of action is
exempt from review under Executive Orders 12866 (58 FR 51735, October
4, 1993) and 13563 (76 FR 3821, January 21, 2011).
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
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 today's rule on small
entities, small entity is defined as: (1) A small business as defined
by the Small Business Administration's (SBA) regulations at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of
a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
After considering the economic impacts of this final action on
small entities, I certify that this final action will not have a
significant economic impact on a substantial number of small entities.
The FIP for the NPPD Units being finalized today does not impose any
new requirements on small entities. The partial approval of the SIP
merely approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law. See Mid-
Tex Electric Cooperative, Inc. v. FERC, 773 F.2d 327 (D.C. Cir. 1985).
Moreover, due to the nature of the Federal-State relationship under the
CAA, preparation of flexibility analysis would constitute Federal
inquiry into the economic reasonableness of state action. The CAA
forbids EPA to base its actions concerning SIPs on such grounds. Union
Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C.
7410(a)(2).
D. Unfunded Mandates Reform Act
This rule does not contain a Federal mandate that may result in
expenditures of $100 million or more, adjusted for inflation, for
state, local, and tribal governments, in the aggregate, or the private
sector in any one year. EPA has determined that the approval action
proposed does not include a Federal mandate that may result in
estimated costs of $100 million or more to either state, local, or
tribal governments in the aggregate, or to the private sector. Thus,
this rule is not subject to the requirements of sections 202 or 205 of
the UMRA.
This rule 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 rule contains
regulatory requirements that apply to two units at one coal-fired power
plant in Nebraska.
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, because it merely addresses the
state not fully meeting its obligation to adopt a SIP that meets the
regional haze requirements under the CAA. Thus, Executive Order 13132
does not apply to this action. In the spirit of Executive Order 13132,
and consistent with EPA policy to promote communications between EPA
and state and local governments, EPA specifically solicited comments on
the proposed rule from state and local officials.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This rule does not have tribal implications, as specified in
Executive Order 13175, because the action EPA is taking neither imposes
substantial direct compliance costs on tribal governments, nor preempts
tribal law. It will not have substantial direct effects on tribal
governments. Thus, Executive Order 13175 does not apply to this rule.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045 (62 FR 19885, April 23, 1997), applies to any
rule that: (1) Is determined to be economically significant as defined
under Executive Order 12866; and (2) concerns an environmental health
or safety risk that we have reason to believe may have a
disproportionate effect on children. EPA interprets EO 13045 as
applying only to those regulatory actions that concern health or safety
risks, such that the analysis required under section 5-501 of the EO
has the potential to influence the regulation. This action is not
subject to EO 13045 because it implements specific standards
established by Congress in statutes.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not subject to Executive Order 13211 (66 FR 28355,
May 22, 2001) because it is not a significant regulatory action under
Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12 of the National Technology Transfer and Advancement Act
(NTTAA) of 1995 requires Federal agencies to evaluate existing
technical standards when developing a new regulation. To comply with
NTTAA, EPA must consider and use ``voluntary consensus standards''
(VCS) if available and applicable when developing programs and policies
unless doing so would be inconsistent with applicable law or otherwise
impractical. The EPA believes that VCS are inapplicable to this action.
Today's action does not require the public to perform activities
conducive to the use of VCS. This action does not involve technical
standards. Therefore, 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 (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
[[Page 40168]]
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
We have determined that this rule will not have disproportionately
high and adverse human health or environmental effects on minority or
low-income populations because it increases the level of environmental
protection for all affected populations without having any
disproportionately high and adverse human health or environmental
effects on any population, including any minority or low-income
population. This rule does not impose any new mandates, because EGUs in
Nebraska are subject to the requirements of the Transport Rule
independently of this action. See 77 FR 33642, for an analysis of the
implications of Executive Order 12898 in relation to EPA's final rule,
``Regional Haze: Revisions to Provisions Governing Alternatives to
Source-Specific Best Available Retrofit Technology (BART)
Determinations, Limited SIP Disapprovals, and Federal Implementation
Plans'' (June 7, 2012). The partial approval of the SIP merely approves
state law as meeting Federal requirements and imposes no additional
requirements beyond those imposed by state law.
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. Section 804 exempts from section 801 the following types
of rules (1) rules of particular applicability; (2) rules relating to
agency management or personnel; and (3) rules of agency organization,
procedure, or practice that do not substantially affect the rights or
obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required
to submit a rule report regarding today's action under section 801
because this is a rule of particular applicability.
L. Judicial Review
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by September 4, 2012. Pursuant to CAA section
307(d)(1)(B), this action is subject to the requirements of CAA section
307(d) as it promulgates a FIP under CAA section 110(c).
Filing a petition for reconsideration by the Administrator of this
final rule does not affect the finality of this action for the purposes
of judicial review nor does it extend the time within which a petition
for judicial review may be filed, and shall not postpone the
effectiveness of such rule or action. This action may not be challenged
later in proceedings to enforce its requirements. See CAA section
307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protections, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen oxides, Particulate
matter, Reporting and recordkeeping requirements, Sulfur dioxide,
Volatile organic compounds.
Dated: June 15, 2012.
Lisa P. Jackson,
Administrator.
Title 40, chapter I, of the Code of Federal Regulations is amended
as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
0
2. Sec. 52.1420 is amended by:
0
a. Revising the heading for paragraph (d) and the heading for the table
in paragraph (d);
0
b. In paragraph (d), adding entries (3) and (4) to the table in
numerical order; and
0
c. In paragraph (e), adding entry (25) to the table in numerical order
to read as follows:
Sec. 52.1420 Identification of plan.
* * * * *
(d) EPA-approved state source-specific requirements.
EPA-Approved Nebraska Source-Specific Requirements
----------------------------------------------------------------------------------------------------------------
State effective
Name of source Permit No. date EPA approval date Explanation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
(3) Nebraska Public Power CP07-0050............ 5/11/10 7/6/2012, [Insert EPA has only
District, Gerald Gentleman Federal Register approved the
Station. citation]. elements of the
permit pertaining
to NOX
requirements.
(4) Omaha Public Power CP07-0049............ 2/26/09 7/6/2012, [Insert ..................
District, Nebraska City Federal Register
Station. citation].
----------------------------------------------------------------------------------------------------------------
(e) * * *
[[Page 40169]]
EPA-Approved Nebraska Nonregulatory Provisions
----------------------------------------------------------------------------------------------------------------
Applicable
Name of nonregulatory SIP geographic or State submittal EPA approval date Explanation
provision nonattainment area date
----------------------------------------------------------------------------------------------------------------
* * * * * * *
(25) Regional haze plan for the Statewide............ 6/30/11 7/6/2012, [Insert The plan was
first implementation period. Federal Register approved except
citation]. for that portion
pertaining to SO2
BART for Nebraska
Public Power
District, Gerald
Gentleman Units 1
and 2, and the
portion of the
long- term
strategy
addressing the
SO2 BART measures
for these Units.
----------------------------------------------------------------------------------------------------------------
0
3. Section 52.1437 is added to read as follows:
Sec. 52.1437 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
Nebraska on July 13, 2011, does not include approvable measures for
meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) with
respect to emissions of SO2 from Nebraska Public Power
District, Gerald Gentleman Station, Units 1 and 2. EPA has disapproved
the provisions of the July 13, 2011 SIP pertaining to the
SO2 BART determination for this facility, including those
provisions of the long-term strategy addressing the SO2 BART
measures for these units.
(b) Measures Addressing Partial Disapproval Associated with SO2.
The deficiencies associated with the SO2 BART determination
for Nebraska Public Power District, Gerald Gentleman Station, Units 1
and 2 identified in EPA's partial disapproval of the regional haze plan
submitted by Nebraska on July 13, 2011, are satisfied by Sec. 52.1429.
[FR Doc. 2012-15192 Filed 7-5-12; 8:45 am]
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