[Federal Register Volume 77, Number 239 (Wednesday, December 12, 2012)]
[Rules and Regulations]
[Pages 73926-73934]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-29985]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2011-0400; FRL-9756-9]
Approval and Promulgation of State Implementation Plans; State of
Wyoming; Regional Haze Rule Requirements for Mandatory Class I Areas
Under 40 CFR 51.309
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is approving Wyoming State Implementation Plan (SIP)
revisions submitted on January 12, 2011 and April 19, 2012 that address
regional haze. These SIP revisions were submitted to address the
requirements of the Clean Air Act (CAA or Act) and our rules that
require states to prevent any future and remedy any existing man-made
impairment of visibility in mandatory Class I areas caused by emissions
of air pollutants from numerous sources located over a wide geographic
area (also referred to as the ``regional haze program''). States are
required to assure reasonable progress toward the national goal of
achieving natural visibility conditions in Class I areas. EPA is taking
this action pursuant to section 110 of the CAA.
DATES: This final rule is effective January 11, 2013.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R08-OAR-2011-0400. All documents in the docket are listed on
the www.regulations.gov Web site. Publicly available docket materials
are available either electronically through www.regulations.gov, or in
hard copy at the Air Program, Environmental Protection Agency (EPA),
Region 8, 1595 Wynkoop Street, Denver, Colorado 80202-1129. EPA
requests that if, at all possible, you contact the individual listed in
the FOR FURTHER INFORMATION CONTACT section to view the hard copy of
the docket. You may view the hard copy of the docket Monday through
Friday, 8 a.m. to 4 p.m., excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT: Laurel Dygowski, Air Program, Mailcode
8P-AR, Environmental Protection Agency, Region 8, 1595 Wynkoop Street,
Denver, Colorado 80202-1129, (303) 312-6144, [email protected].
SUPPLEMENTARY INFORMATION:
Definitions
For the purpose of this document, we are giving meaning to certain
words or initials as follows:
i. The words or initials Act or CAA mean or refer to the Clean Air
Act, unless the context indicates otherwise.
ii. The initials BART mean or refer to Best Available Retrofit
Technology.
iii. The initials EGUs mean or refer to electric generating units.
iv. The initials GCVTC mean or refer to the Grand Canyon Visibility
Transport Commission.
v. The initials NOX mean or refer to nitrogen oxides.
vi. The initials PM mean or refer to particulate matter.
vii. The initials SIP mean or refer to State Implementation Plan.
viii. The initials URP mean or refer to uniform rate of progress.
ix. The initials WAQSR mean or refer to Wyoming Air Quality
Standards and Regulations.
Table of Contents
I. Background
A. Regional Haze
B. Lawsuits
C. Our Proposal
D. Public Participation
II. Final Action
III. Basis for Our Final Action
IV. Issues Raised by Commenters and EPA's Responses
A. Backstop Trading Program
B. General Comments
V. Statutory and Executive Order Reviews
I. Background
The CAA requires each state to develop plans, referred to as SIPs,
to meet various air quality requirements. A state must submit its SIPs
and SIP revisions to us for approval. Once approved, a SIP is
enforceable by the EPA and citizens under the CAA, also known as being
federally enforceable. This action involves the requirement that states
have SIPs that address regional haze.
A. Regional Haze
In 1990, Congress added section 169B to the CAA to address regional
haze issues, and we promulgated regulations addressing regional haze in
1999. 64 FR 35714 (July 1, 1999), codified at 40 CFR part 51, subpart
P. The requirements for regional haze, found at 40 CFR 51.308 and
51.309, are included in our visibility protection regulations at 40 CFR
51.300-309. The requirement to submit a regional haze SIP applies to
all 50 states, the District of Columbia and the Virgin Islands. States
were required to submit a SIP addressing regional haze visibility
impairment no later than
[[Page 73927]]
December 17, 2007. 40 CFR 51.308(b) and 40 CFR 51.309(c).
Wyoming submitted SIPs addressing regional haze on January 12, 2011
and April 19, 2012 (these superseded and replaced prior SIP submittals
dated December 24, 2003, May 7, 2004, and November 21, 2008).
B. Lawsuits
In a lawsuit in the U.S. District Court for the District of
Colorado, environmental groups sued us for our failure to take timely
action with respect to the regional haze requirements of the CAA and
our regulations for the State of Wyoming. As a result of this lawsuit,
we entered into a consent decree. The consent decree requires that we
sign a notice of final rulemaking addressing the regional haze
requirements of 40 CFR 51.309 for Wyoming by November 14, 2012.\1\ We
are meeting that requirement with the signing of this notice of final
rulemaking.
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\1\ The State submitted another SIP revision dated January 12,
2011 that addresses the requirements of 40 CFR 51.309(g) and 40 CFR
51.309(d)(4)(vii). We are under a consent decree deadline to take
final action on this SIP by December 14, 2012. We will be taking
final action on this SIP in a separate action.
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C. Our Proposal
We signed our notice of proposed rulemaking on May 9, 2012, and it
was published in the Federal Register on May 24, 2012 (77 FR 30953). In
that notice, we provided a detailed description of the various regional
haze requirements. We are not repeating that description here; instead,
the reader should refer to our notice of proposed rulemaking for
further detail.
In our proposal, we proposed to approve Wyoming SIP revisions
submitted on January 12, 2011 and April 19, 2012 that address the
regional haze rule (RHR) for the mandatory Class I areas under 40 CFR
51.309. EPA proposed that the January 12, 2011 and April 19, 2012 SIPs
meet the requirements of 40 CFR 51.309, with the exception of 40 CFR
51.309(d)(4)(vii), and 40 CFR 51.309(g), as explained below.
As part of the January 12, 2011 and April 19, 2012 SIPs, the State
submitted revisions to the Wyoming Air Quality Standards and
Regulations (WAQSR). The State submitted WAQSR Chapter 14, Sections 2
and 3--Emission Trading Program Regulations. WAQSR Chapter 14, in
conjunction with the SIP, implements the backstop trading program
provisions in accordance with the applicable requirements of 40 CFR
51.308 and 40 CFR 51.309. We proposed to approve WAQSR Chapter 14,
Section 2 and Section 3. The State also submitted WAQSR Chapter 10,
Section 4--Smoke Management. WAQSR Chapter 10, Section 4, in
conjunction with the SIP, implements the requirements for smoke
management under 40 CFR 51.309(d)(6). We proposed to approve WAQSR
Chapter 10, Section 4.
The State's submitted another SIP revision dated January 12, 2011
that addresses the requirements under 40 CFR 51.309(d)(4)(vii) and 40
CFR 51.309(g) pertaining to best available retrofit technology (BART)
for particulate matter (PM) and nitrogen oxides (NOX) and
additional Class I areas, respectively. EPA proposed action on this SIP
in a separate notice (77 FR 33022). In addition, the January 12, 2011
and April 19, 2012 submittals we proposed to act on supersede and
replace regional haze SIPs submitted on December 24, 2003, May 27,
2004, and November 21, 2008.
D. Public Participation
We requested comments on all aspects of our proposed action and
provided a sixty-day comment period, with the comment period closing on
July 23, 2012. We received comments on our proposed rule that supported
our proposed action and that were critical of our proposed action. In
this action, we are responding to the comments we have received, taking
final rulemaking action, and explaining the bases for our action.
II. Final Action
In this action, EPA is approving Wyoming SIP revisions submitted on
January 12, 2011 and April 19, 2012 that address the RHR requirements
for the mandatory Class I areas under 40 CFR 51.309. EPA taking final
action to find that the January 12, 2011 and April 19, 2012 SIPs meet
the requirements of 40 CFR 51.309, with the exception of 40 CFR
51.309(d)(4)(vii), and 40 CFR 51.309(g).
As part of the January 12, 2011 submittal, the State submitted
revisions to WAQSR. The State submitted WAQSR Chapter 14, Sections 2
and 3--Emission Trading Program Regulations. We are approving WAQSR
Chapter 14, Section 2 and Section 3. The State also submitted WAQSR
Chapter 10, Section 4--Smoke Management. We are approving WAQSR Chapter
10, Section 4. We are also approving Wyoming's April 19, 2012 SIP
submittal that contains the pre-trigger emission inventory
requirements, which are covered by WAQSR Chapter 14, Section 3--
Emission Inventory.
III. Basis for Our Final Action
We have fully considered all significant comments on our proposal
and have concluded that no changes from our proposal are warranted. Our
action is based on an evaluation of Wyoming's regional haze SIP
submittal against the regional haze requirements at 40 CFR 51.300-
51.309 and CAA sections 169A and 169B. All general SIP requirements
contained in CAA section 110, other provisions of the CAA, and our
regulations applicable to this action were also evaluated. The purpose
of this action is to ensure compliance with these requirements. Our
authority for action on Wyoming's SIP submittal is based on CAA section
110(k).
We are approving the State's regional haze SIP provisions because
they meet the relevant regional haze requirements. The adverse comments
we received concerning our proposed approval of the regional haze SIP
pertained to our proposed approval of the SO2 backstop
trading program. However, the comments have not convinced us that the
State did not meet the requirements of 40 CFR 51.309 that we proposed
to approve.
IV. Issues Raised by Commenters and EPA's Responses
A. Backstop Trading Program
EPA has proposed to approve the SO2 backstop trading
program components of the RH SIPs for all participating states and has
done so through four separate proposals: For the Bernalillo County
proposal see 77 FR 24768 (April 25, 2012); for the Utah proposal see 77
FR 28825 (May 15, 2012); for the Wyoming proposal see 77 FR 30953 (May
24, 2012); finally, for the New Mexico proposal see 77 FR 36043 (June
15, 2012). National conservation organizations paired with
organizations local to each state have together submitted very similar,
if not identical, comments on various aspects of EPA's proposed
approval of these common program components. These comment letters may
be found in the docket for each proposal and are dated as follows: May
25, 2012 for Bernalillo County; July 16, 2012 for Utah; July 23, 2012
for Wyoming; and July 16, 2012 for New Mexico. Each of the comment
letters has attached a consultant's report dated May 25, 2012, and
titled: ``Evaluation of Whether the SO2 Backstop Trading
Program Proposed by the States of New Mexico, Utah and Wyoming and
Albuquerque-Bernalillo County Will Result in Lower SO2
Emissions than Source-Specific BART.'' In this section, we address and
respond to those comments we identified as being
[[Page 73928]]
consistently submitted and specifically directed to the component of
the published proposals dealing with the SO2 backstop
trading program. For our organizational purposes, any additional or
unique comments found in the conservation organization letter that is
applicable to this proposal (i.e., for the State of Wyoming) will be
addressed in the next section where we also address all other comments
received.
Comment: The commenter acknowledges that prior case law affirms
EPA's regulatory basis for having ``better than BART'' alternative
measures, but nevertheless asserts that it violates Congress' mandate
for an alternative trading program to rely on emissions reductions from
non-BART sources and excuse electric generating units (EGUs) from
compliance with BART.
Response: The CAA requires BART ``as may be necessary to make
reasonable progress toward meeting the national goal'' of remedying
existing impairment and preventing future impairment at mandatory Class
I areas. See CAA Section 169A(b)(2) (emphasis added). In 1999, EPA
issued regulations allowing for alternatives to BART based on a reading
of the CAA that focused on the overarching goal of the statute of
achieving progress. EPA's regulations provided states with the option
of implementing an emissions trading program or other alternative
measure in lieu of BART so long as the alternative would result in
greater reasonable progress than BART. We note that this interpretation
of CAA Section 169A(B)(2) was determined to be reasonable by the D.C.
Circuit in Center for Energy and Economic Development v. EPA, 398 F.3d
653, 659-660 (D.C. Cir. 2005) in a challenge to the backstop market
trading program under Section 309, and again found to be reasonable by
the D.C. Circuit in Utility Air Regulatory Group v. EPA, 471 F.3d 1333,
1340 (D.C. Cir. 2006) (``* * * [W]e have already held in CEED that EPA
may leave states free to implement BART-alternatives so long as those
alternatives also ensure reasonable progress.''). Our regulations for
alternatives to BART, including the provisions for a backstop trading
program under Section 309, are therefore consistent with the CAA and
not in issue in this action approving a SIP submitted under those
regulations. We have reviewed the submitted 309 trading program SIPs to
determine whether each has the required backstop trading program (see
40 CFR 51.309(d)(4)(v)), and whether the features of the program
satisfy the requirements for trading programs as alternatives to BART
(see 40 CFR 51.308(e)(2)). Our regulations make clear that any market
trading program as an alternative to BART contemplates market
participation from a broader list of sources than merely those sources
that are subject to BART. See 40 CFR 51.308(e)(2)(i)(B).
Comment: The submitted 309 trading program is defective because
only three of nine transport states remain in the program. The Grand
Canyon Visibility Transport Commission (GCVTC) Report clearly stated
that the program must be ``comprehensive.'' The program fails to
include the other western states that account for the majority of
sulfate contribution in the Class I areas of participating states, and
therefore, Class I areas on the Colorado Plateau will see little or no
visibility benefit. Non-participation by other transport region states
compounds the program's deficiencies.
Response: We disagree that the 309 trading program is defective
because only three states remain in the program. EPA's regulations do
not require a minimum number of Transport Region States to participate
in the 309 trading program, and there is no reason to believe that the
limited participation by the 9 Transport Region States will limit the
effectiveness of the program in the three states that have submitted
309 SIPs. The commenter's argument is not supported by the regional
haze regulations and is demonstrably inconsistent with the resource
commitments of the Transport Region States that have worked for many
years in the WRAP to develop and submit SIPs to satisfy 40 CFR 51.309.
At the outset, our regulations affirm that ``certain States * * * may
choose'' to comply with the 40 CFR 51.309 requirements and conversely
that ``[a]ny Transport Region State [may] elect not to submit an
implementation plan'' to meet the optional requirements. 40 CFR
51.309(a); see also 40 CFR 51.309(f). We have also previously observed
how the WRAP, in the course of developing its technical analyses as the
framework for a trading program, ``understood that some States and
Tribes may choose not to participate in the optional program provided
by 40 CFR 51.309.'' 68 FR 33,769 (June 5, 2003). Only five of nine
Transport Region States initially opted to participate in the backstop
trading program in 2003, and of those initial participants only Oregon
and Arizona later elected not to submit 309 SIPs.
We disagree with the commenter's assertion that Class I areas on
the Colorado Plateau will see little or no visibility benefit. Non-
participating states must account for sulfate contributions to
visibility impairment at Class I areas by addressing all requirements
that apply under 40 CFR 51.308. To the extent Wyoming, New Mexico and
Utah sources ``do not account for the majority of sulfate
contribution'' at the 16 class I areas on Colorado Plateau, there is no
legal requirement that they account for SO2 emissions
originating from sources outside these participating states. Aside from
this, the modeling results detailed in the proposed rulemaking show
projected visibility improvement for the 20 percent worst days in 2018
and no degradation in visibility conditions on the 20 percent best days
at all 16 of the mandatory Class I areas under the submitted 309 plan.
Finally, we do not agree with the commenter's characterization of
the GCVTC Report, which used the term ``comprehensive'' only in stating
the following: ``It is the intent of [the recommendation for an
incentive-based trading program] that [it] include as many source
categories and species of pollutants as is feasible and technically
defensible. This preference for a `comprehensive' market is based upon
the expectation that a comprehensive program would be more effective at
improving visibility and would yield more cost-effective emission
reduction strategies for the region as a whole.'' \2\
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\2\ The Grand Canyon Visibility Transport Commission,
Recommendations for Improving Western Vistas at 32 (June 10, 1996).
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It is apparent that the GCVTC recommended comprehensive source
coverage to optimize the market trading program. This does not
necessitate or even necessarily correlate with geographic
comprehensiveness as contemplated by the comment. We note that the
submitted backstop trading program does in fact comprehensively include
``many source categories,'' as may also be expected for any intrastate
trading program that any state could choose to develop and submit under
40 CFR 51.308(e)(2). As was stated in our proposal, section 51.309 does
not require the participation of a certain number of states to validate
its effectiveness.
Comment: The submitted 309 trading program is defective because the
pollutant reductions from participating states have little visibility
benefit in each other's Class I areas. The states that have submitted
309 SIPs are ``largely non-contiguous'' in terms of their physical
borders and their air shed impacts. Sulfate emissions from each of the
participating states have little effect on Class I areas in other
participating states.
[[Page 73929]]
Response: We disagree. The 309 program was designed to address
visibility impairment for the sixteen Class I areas on the Colorado
Plateau. New Mexico, Wyoming and Utah are identified as Transport
Region States because the GCVTC had determined they could impact the
Colorado Plateau class I areas. The submitted trading program has been
designed by these transport region states to satisfy their requirements
under 40 CFR 51.309 to address visibility impairment at the sixteen
Class I areas. The strategies in these plans are directed toward a
designated clean-air corridor that is defined by the placement of the
16 Class I areas, not the placement of state borders. ``Air sheds''
that do not relate to haze at these Class I areas or that relate to
other Class I areas are similarly not relevant to whether the
requirements for an approvable 309 trading program are met. As
applicable, any transport region state, with Class I areas not on the
Colorado Plateau, implementing the provisions of section 309 must also
separately demonstrate reasonable progress for any additional mandatory
Class I areas other than the 16 Class I areas located within the state.
See 40 CFR 51.309(g). More broadly, the state must submit a long-term
strategy to address these additional Class I areas as well as those
Class I areas located outside the state, which may be affected by
emissions from the state. 40 CFR 51.309(g) and 51.308(d)(2). In
developing long-term strategies, the Transport Region States may take
full credit for visibility improvements that would be achieved through
implementation of the strategies required by 51.309(d). A state's
satisfaction of the requirements of 51.309(d), and specifically the
requirement for a backstop trading program, is evaluated independently
from whether a state has satisfied the requirements of 51.309(g). In
neither case, however, does the approvability inquiry center on the
location or contiguousness of state borders.
Comment: The emission benchmark used in the submitted 309 trading
program is inaccurate. The ``better-than-BART'' demonstration needs to
analyze BART for each source subject to BART in order to evaluate the
alternative program. The submitted 309 trading program has no BART
analysis. The ``better-than-BART'' demonstration does not comply with
the regional haze regulations when it relies on the presumptive
SO2 emission rate of 0.15 lb/MMBtu for most coal-fired EGUs.
The presumptive SO2 limits are inappropriate because EPA has
elsewhere asserted that ``presumptive limits represented control
capabilities at the time the BART Rule was promulgated, and that [EPA]
expected that scrubber technology would continue to improve and control
costs would continue to decline.'' 77 FR 14614 (March 12, 2012).
Response: We disagree that the submitted 309 trading program
requires an analysis that determines BART for each source subject to
BART. Source specific BART determinations are not required to support
the better-than-BART demonstration when the ``alternative measure has
been designed to meet a requirement other than BART.'' See 40 CFR
51.308(e)(2)(i)(C). The requirements of Section 309 are meant to
implement the recommendations of the Grand Canyon Visibility Transport
Commission and are regulatory requirements ``other than BART'' that are
part of a long-term strategy to achieve reasonable progress. As such,
in its analysis, the State may assume emission reductions ``for similar
types of sources within a source category based on both source-specific
and category-wide information, as appropriate.'' See id. The 309 states
used this approach in developing their emission benchmark, and we view
it to be consistent with what we have previously stated regarding the
establishment of a BART benchmark. Specifically, we have explained that
states designing alternative programs to meet requirements other than
BART ``may use simplifying assumptions in establishing a BART benchmark
based on an analysis of what BART is likely to be for similar types of
sources within a source category.'' 71 FR 60619 (Oct. 13, 2006).
We also previously stated that ``we believe that the presumptions
for EGUs in the BART guidelines should be used for comparisons to a
trading program or other alternative measure, unless the State
determines that such presumptions are not appropriate.'' Id. Our
reasoning for this has also long been clear. While EPA recognizes that
a case-by-case BART analysis may result in emission limits more
stringent than the presumptive limits, the presumptive limits are
reasonable and appropriate for use in assessing regional emissions
reductions for the better than BART demonstration. See 71 FR 60619
(``the presumptions represent a reasonable estimate of a stringent case
BART because they would be applied across the board to a wide variety
of units with varying impacts on visibility, at power plants of varying
size and distance from Class I areas''). The submitted SIP revisions
from the 309 states have accordingly and appropriately, followed our
advice that the presumptions for EGUs in the BART guidelines, generally
``should'' be used for comparisons to the trading program unless the
state determines otherwise.
EPA's expectation that scrubber technology would continue to
improve and that control costs would continue to decline is a basis for
not regarding presumptive limits as a default or safe harbor BART
determination when the BART Guidelines otherwise call for a complete,
case-by-case analysis. We believe it was reasonable for the developers
of the submitted trading program to use the presumptive limits for EGUs
in establishing the emission benchmark, particularly since the
methodology used to establish the emission benchmark was established
near in time to our promulgation of the presumptive limits as well as
our guidance that they should be used. We do not think the assumptions
used at the time the trading program was developed, including the use
of presumptive limits, were unreasonable. Moreover, the commenter has
not demonstrated how the use of presumptive limits as a simplifying
assumption at that time, or even now, would be flawed merely because
EPA expects that scrubber technology and costs will continue to
improve.
Comment: The presumptive SO2 emission rate overstates
actual emissions from sources that were included in the BART benchmark
calculation. In addition, states in the transport region have
established or proposed significantly more stringent BART limits for
SO2. Using actual SO2 emission data for EGUs,
SO2 emissions would be 130,601 tons per year (tpy), not the
benchmark of 141,859 tpy submitted in the 309 trading program. Using a
combination of actual emissions and unit-specific BART determinations,
the SO2 emissions would be lower still at 123,529 tpy.
Finally, the same data EPA relied on to support its determination that
reductions under the Cross State Air Pollution Rule are ``better-than-
BART'' would translate to SO2 emissions of 124,740 tpy.
These analyses show the BART benchmark is higher than actual
SO2 emissions reductions achievable through BART. It follows
that the submitted 309 trading program is flawed because it cannot be
deemed to achieve ``greater reasonable progress'' than BART.
Response: The BART benchmark calculation does not overstate
emissions because it was not intended to assess actual emissions at
BART subject sources nor was it intended to assess the control
capabilities of later installed
[[Page 73930]]
controls. Instead, the presumptive SO2 emission rate served
as a necessary simplifying assumption. When the states worked to
develop the 309 trading program, they could not be expected to
anticipate the future elements of case-by-case BART determinations made
by other states (or EPA, in the case of a BART determination through
any federal implementation plan), nor could they be expected to
anticipate the details of later-installed SO2 controls or
the future application of enforceable emission limits to those
controls. The emissions projections by the WRAP 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 in this planning period. In developing a
profile of planning period emissions to support each state's reasonable
progress goals, as well as the submitted trading program, it was
recognized that the final control decisions by all of the states were
not yet complete, as decisions as they may pertain to emissions from
BART eligible sources. Therefore, we believe it is appropriate that the
analysis and demonstration is based on data that was available to the
states at the time they worked to construct the SO2 trading
program. The states did make appropriate adjustments based on
information that was available to them at the time. Notably, the WRAP
appropriately adjusted its use of the presumptive limits in the case of
Huntington Units 1 and 2 in Utah, because those units were already
subject to federally enforceable SO2 emission rates that
were lower than the presumptive rate. The use of actual emissions data
after the 2006 baseline is not relevant to the demonstration that has
been submitted.
Comment: SO2 emissions under the 309 trading program
would be equivalent to the SO2 emissions if presumptive BART
were applied to each BART-subject source. Because the reductions are
equivalent, the submitted 309 trading program does not show, by ``the
clear weight of the evidence,'' that the alternative measure will
result in greater reasonable progress than would be achieved by
requiring BART. In view of the reductions being equivalent, it is not
proper for EPA to rely on ``non-quantitative factors'' in finding that
the SO2 emissions trading program achieves greater
reasonable progress.
Response: We recognize that the 2018 SO2 milestone
equals the BART benchmark and that the benchmark generally utilized the
presumptive limits for EGUs, as was deemed appropriate by the states
who worked together to develop the trading program. If the
SO2 milestone is exceeded, the trading program will be
activated. Under this framework, sources that would otherwise be
subject to the trading program have incentives to make independent
reductions to avoid activation of the trading program. We cannot
discount that the 2003 309 SIP submittal may have already influenced
sources to upgrade their plants before any case-by-case BART
determination under Section 308 may have required it. In addition, the
trading program was designed to encourage early reductions by providing
extra allocations for sources that made reductions prior to the program
trigger year. Permitting authorities that would otherwise permit
increases in SO2 emissions for new sources would be equally
conscious of the potential impacts on the achievement of the milestone.
We note that the most recent emission report for the year 2010 shows a
35% reduction in emissions from 2003. The 309 trading program is
designed as a backstop such that sources would work to accomplish
emission reductions through 2018 that would be superior to the
milestone and the BART benchmark. If instead the backstop trading
program is triggered, the sources subject to the program would be
expected to make any reductions necessary to achieve the emission
levels consistent with each source's allocation. We do not believe that
the ``clear weight of the evidence'' determination referenced in 40 CFR
51.308(e)(2)(E)--in short, a determination that the alternative measure
of the 309 trading program achieves greater reasonable progress than
BART--should be understood to prohibit setting the SO2
milestone to equal the BART benchmark. Our determination that the 2018
SO2 milestone and other design features of the 309 SIP will
achieve greater reasonable progress than would be achieved through BART
is based on our understanding of how the SIP will promote and sustain
emission reductions of SO2 as measured against a milestone.
Sources will be actively mindful of the participating states' emissions
inventory and operating to avoid exceeding the milestone, not trying to
maximize their emissions to be equivalent to the milestone, as this
comment suggests. We note the 2018 milestone constitutes an emissions
cap that persists after 2018 unless the trading program can be replaced
via future SIP revisions submitted for EPA approval that will meet the
BART and reasonable progress requirements of 51.308. See 40 CFR
51.309(d)(4)(vi)(A).
Comment: In proposing to find that the SO2 trading
program achieves greater reasonable progress than BART, EPA's reliance
on the following features of the 309 trading program is flawed: Non-
BART emission reductions, a cap on new growth, and a mass-based cap on
emissions. The reliance on non-BART emission reductions is ``a hollow
promise'' because there is no evidence that the trading program will be
triggered for other particular emission sources, and if the program is
never triggered there will be no emission reductions from smaller non-
BART sources. The reliance on a cap on future source emissions is also
faulty because there is no evidence the trading program will be
triggered, and thus the cap may never be implemented. Existing programs
that apply to new sources will already ensure that SO2
emissions from new sources are reduced to the maximum extent. EPA's
discussion of the advantages of a mass-based cap is unsupported and
cannot be justified. EPA wrongly states that a mass-based cap based on
actual emissions is more stringent than BART. There should not be a
meaningful gap between actual and allowable emissions under a proper
BART determination. A mass-based cap does not effectively limit
emissions when operating at lower loads and, as an annual cap, does not
have restrictive compliance averaging. EPA's argument implies that BART
limits do not apply during startup, shutdown or malfunction events,
which is not correct. The established mass-based cap would allow
sources to operate their SO2 controls less efficiently,
because some BART-subject EGUs already operate with lower emissions
than the presumptive SO2 emission rate of 0.15 lb/MMBtu and
because some EGUs were assumed to be operating at 85% capacity when
their capacity factor (and consequently their SO2 emissions
in tpy) was lower.
Response: We disagree that it is flawed to assess the benefits
found in the distinguishing features of the trading program. The
backstop trading program is not specifically designed so that it will
be activated. Instead, sources that are covered by the program are on
notice that it will be triggered if the regulatory milestones are not
achieved. Therefore, the backstop trading program would be expected to
garner reductions to avoid its activation. It also remains true that if
the trading program is activated, all sources subject to the program,
including smaller non-BART sources would be required to secure emission
reductions as may be
[[Page 73931]]
necessary to meet their emission allocations under the program.
We also disagree that the features of the 2018 milestone as a cap
on future source emissions and as a mass-based cap has no significance.
As detailed in our proposal, the submitted SIP is consistent with the
requirement that the 2018 milestone does indeed continue as an emission
cap for SO2 unless the milestones are replaced by a
different program approved by EPA as meeting the BART and reasonable
progress requirements under 40 CFR 51.308. Future visibility impairment
is prevented by capping emissions growth from those sources not
eligible under the BART requirements, BART sources, and from entirely
new sources in the region. The benefits of a milestone are therefore
functionally distinct from the control efficiency improvements that
could be gained at a limited number of BART subject sources. While
BART-subject sources may not be operating at 85% capacity today, we
believe the WRAP's use of the capacity assumption in consideration of
projected future energy demands in 2018 was reasonable for purposes of
the submitted demonstration. While BART requires BART subject sources
to operate SO2 controls efficiently, this does not mean that
an alternative to BART thereby allows, encourages, or causes sources to
operate their controls less efficiently. On the contrary, we find that
the SIP, consistent with the well-considered 309 program requirements,
functions to the contrary. Sources will be operating their controls in
consideration of the milestone and they also remain subject to any
other existing or future requirements for operation of SO2
controls.
We also disagree with the commenter's contention that existing
programs are equivalent in effect to the emissions cap. EPA's new
source review program is designed to permit, not cap, source growth, so
long as the national ambient air quality standards and other
requirements can be achieved. Moreover, we have not argued that BART
does not apply at all times or that emission reductions under the cap
are meant to function as emission limitations that are made to meet the
definition of BART (40 CFR 51.301). The better-than-BART demonstration
is not, as the comment would have it, based on issues of compliance
averaging or how a BART limit operates in practice at an individual
facility. Instead, it is based on whether the submitted SIP follows the
regulatory requirements for the demonstration and evidences
comparatively superior visibility improvements for the Class I areas it
is designed to address.
Comment: The submitted 309 SIP will not achieve greater reasonable
progress than would the requirement for BART on individual sources. The
BART program ``if adequately implemented'' will promote greater
reasonable progress, and EPA should require BART on all eligible air
pollution sources in the state. EPA's proposed approval of the 309
trading program is ``particularly problematic'' where the BART sources
cause or contribute to impairment at Class I areas which are not on the
Uniform Rate of Progress (URP) glide-path towards achieving natural
conditions. EPA should require revisions to provide for greater
SO2 reductions in the 309 program, or it should require BART
reductions on all sources subject to BART for SO2.
Response: We disagree with the issues discussed in this comment. As
discussed in other responses to comments, we have found that the
State's SIP submitted under the 309 program will achieve greater
reasonable progress than source-by-source BART. As the regulations
housed within section 309 make clear, states have an opportunity to
submit regional haze SIPs that provide an alternative to source-by-
source BART requirements. Therefore, the commenter's assertion that we
should require BART on all eligible air pollution sources in the state
is fundamentally misplaced. The commenter's use of the URP as a test
that should apparently be applied to the adequacy of the 309 trading
program as a BART alternative is also misplaced, as there is no
requirement in the regional haze rule to do so.
Comment: The 309 trading program must be disapproved because it
does not provide for ``steady and continuing emissions reductions
through 2018'' as required by 40 CFR 51.309(d)(4)(ii). The program
establishes its reductions through milestones that are set at three-
year intervals. It would be arbitrary and capricious to conclude these
reductions are ``steady'' or ``continuous.''
Response: We disagree and find that the reductions required at each
milestone demonstrate steady and continuing emissions reductions. The
milestones do this by requiring regular decreases. These decreases
occur in intervals ranging from one to three years and include
administrative evaluation periods with the possibility of downward
adjustments of the milestone, if warranted. The interval under which
``steady and continuing emissions reductions through 2018'' must occur
is not defined in the regional haze rule. We find the milestone
schedule and the remainder of the trading program submitted by Wyoming
does in fact reasonably provide for ``steady and continuing emissions
reductions through 2018.''
Comment: The WRAP attempts to justify the SO2 trading
program because SO2 emissions have decreased in the three
transport region states relying on the alternative program by 33%
between 1990-2000. The justification fails because the reductions were
made prior to the regional haze rule. The reliance on reductions that
predate the regional haze rule violates the requirement of 40 CFR
51.308(e)(2)(iv) that BART alternatives provide emission reductions
that are ``surplus'' to those resulting from programs implemented to
meet other CAA requirements.
Response: We did not focus on the WRAP's discussion of early
emission reductions in our proposal. However, we do not understand
commenter's claim or agree with this comment. The WRAP's statements
regarding past air quality improvements are not contrary to the
requirement that reductions under a trading program be surplus.
Instead, the WRAP was noting that forward-planning sources had already
pursued emission reductions that could be partially credited to the
design of the 309 SIP. We note that the most recent emission report for
the year 2010 shows a 35% reduction in emissions from 2003. Sources
that make early reductions prior to the program trigger year may
acquire extra allocations should the program be triggered. This is an
additional characteristic feature of the backstop trading program that
suggests benefits that would be realized even without triggering of the
program itself. The surplus emission reduction requirement for the
trading program is not an issue, because the existence of surplus
reductions is studied against other reductions that are realized ``as
of baseline date of the SIP.'' The 1990-2000 period plainly falls
earlier than the baseline date of the SIP, so we disagree that the
WRAP's discussion of that period was problematic or violates 40 CFR
51.308(e)(2)(iv), regarding surplus reductions.
Comment: EPA must correct discrepancies between the data presented
in the 309 SIPs.\3\ There are discrepancies in what has been presented
as the results of WRAP photochemical modeling. The New
[[Page 73932]]
Mexico regional haze SIP proposal shows, for example, that the 20%
worst days at Grand Canyon National Park have visibility impairment of
11.1 deciviews, while the other proposals show 11.3 deciviews. The
discrepancy appears to be due to the submittals being based on
different modeling scenarios developed by the WRAP. EPA must explain
and correct the discrepancies and ``re-notice'' a new proposed rule
containing the correct information.
---------------------------------------------------------------------------
\3\ This particular comment was not submitted in response to the
proposal to approve Albuquerque's 309 trading program, the earliest
published proposal. It was consistently submitted in the comment
periods for the proposals to approve the 309 trading programs for
NM, WY and UT, which were later in time.
---------------------------------------------------------------------------
Response: We agree that there are discrepancies in the numbers in
Table 1 of the proposed notices. The third column of the table below
shows the modeling results presented in Table 1 of the Albuquerque,
Wyoming, and Utah proposals. The modeling results in the New Mexico
proposal Table 1 are shown in the fourth column in the table below. The
discrepancies come from New Mexico using different preliminary
reasonable progress cases developed by the WRAP. The Wyoming, Utah, and
Albuquerque proposed notices incorrectly identify the Preliminary
Reasonable Progress (PRP) case as the PRP18b emission inventory instead
of correctly identifying the presented data as modeled visibility based
on the ``PRP18a'' emission inventory. The PRP18a emission inventory is
a predicted 2018 emission inventory with all known and expected
controls as of March 2007. The preliminary reasonable progress case
(``PRP18b'') used by New Mexico is the more updated version produced by
the WRAP with all known and expected controls as of March 2009. Thus,
we are correcting Table 1, column 5 in our proposed notices for
Wyoming, Utah, and Albuquerque to include model results from the PRP18b
emission inventory, consistent with the New Mexico proposed notice and
the fourth column in the table below. We are also correcting the
description of the Preliminary Reasonable Progress Case (referred to as
the PRP18b emission inventory and modeled projections) to reflect that
this emission inventory includes all controls ``on the books'' as of
March 2009.
----------------------------------------------------------------------------------------------------------------
2018 Preliminary 2018 Preliminary
reasonable reasonable
Class I area State progress PRP18a progress PRP18b
case (deciview) case (deciview)
----------------------------------------------------------------------------------------------------------------
Grand Canyon National Park.................... AZ 11.3 11.1
Mount Baldy Wilderness........................ AZ 11.4 11.5
Petrified Forest National Park................ AZ 12.9 12.8
Sycamore Canyon Wilderness.................... AZ 15.1 15.0
Black Canyon of the Gunnison National Park CO 9.9 9.8
Wilderness.
Flat Tops Wilderness.......................... CO 9.0 9.0
Maroon Bells Wilderness....................... CO 9.0 9.0
Mesa Verde National Park...................... CO 12.6 12.5
Weminuche Wilderness.......................... CO 9.9 9.8
West Elk Wilderness........................... CO 9.0 9.0
San Pedro Parks Wilderness.................... NM 9.8 9.8
Arches National Park.......................... UT 10.9 10.7
Bryce Canyon National Park.................... UT 11.2 11.1
Canyonlands National Park..................... UT 10.9 10.7
Capitol Reef National Park.................... UT 10.5 10.4
Zion National Park............................ UT 13.0 12.8
----------------------------------------------------------------------------------------------------------------
We are not re-noticing our proposed rulemaking as the discrepancies
do not change our proposed conclusion that the SIP submitted by Wyoming
contains reasonable projections of the visibility improvements expected
at the 16 Class I areas at issue. The PRP18a modeling results show
projected visibility improvement for the 20 percent worst days from the
baseline period to 2018. The PRP18b modeling results show either the
same or additional visibility improvement on the 20 percent worst days
beyond the PRP18a modeling results. We also note there are two
discrepancies in New Mexico's Table 1, column four compared to the
other participating states' notices. The 2018 base case visibility
projection in the New Mexico proposed notice for Black Canyon of the
Gunnison National Park Wilderness and Weminuche Wilderness should be
corrected to read 10.1 deciview rather than 10.0. Notwithstanding the
discrepancies described above, we believe that Wyoming's SIP adequately
projects the improvement in visibility for purposes of Section 309.
B. General Comments
Comment: We received comments from PacifiCorp and New Mexico
Environment Department supporting our proposed approval of Wyoming's
309 SIP.
Response: We acknowledge the commenters' support of our proposed
rulemaking.
V. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive
[[Page 73933]]
Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by February 11, 2013. 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 section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Sulfur oxides,
Incorporation by reference.
Dated: November 13, 2012.
James B. Martin,
Regional Administrator, Region 8.
40 CFR part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart ZZ--Wyoming
0
2. Section 52.2620 is amended by:
0
a. Amending the table in paragraph (c)(1) under Chapter 10 by adding an
entry for Section 4.
0
b. Amending the table in paragraph (c)(1) by adding Chapter 14
consisting of entries for Section 2 and Section 3.
0
c. Amending the table in paragraph (e) by adding entry ``XX'' at the
end of the table.
The additions read as follows:
Sec. 52.2620 Identification of plan.
* * * * *
(c) * * *
(1) * * *
----------------------------------------------------------------------------------------------------------------
State adopted and EPA approval date
State citation Title/subject effective date and citation \1\ Explanation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Chapter 10
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Section 4...................... Smoke Management.. 2/17/2005, 4/5/ 12/12/2012 [Insert
2005. FR page number
where document
begins].
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Chapter 14
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Section 2...................... Western Backstop 2/27/2008, 5/7/ 12/12/2012 [Insert
Sulfur Dioxide 2008. FR page number
Trading Program. where document
begins].
Section 3...................... Sulfur Dioxide 2/27/2008, 5/7/ 12/12/2012 [Insert
Milestone 2008. FR page number
Inventory. where document
begins].
----------------------------------------------------------------------------------------------------------------
\1\ In order to determine the EPA effective date for a specific provision listed in this table, consult the
Federal Register notice cited in this column for the particular provision.
* * * * *
(e) * * *
[[Page 73934]]
----------------------------------------------------------------------------------------------------------------
Applicable
Name of nonregulatory SIP geographic or State submittal EPA approval date Explanations
provision nonattainment area date/adopted date and citation \3\
----------------------------------------------------------------------------------------------------------------
* * * * * * *
XX. Wyoming State Statewide......... Submitted: 1/12/ 12/12/2012 [Insert
Implementation Plan for 2011. Federal Register
Regional Haze for 309. page number where
the document
begins].
----------------------------------------------------------------------------------------------------------------
\3\ In order to determine the EPA effective date for a specific provision listed in this table, consult the
Federal Register notice cited in this column for the particular provision.
[FR Doc. 2012-29985 Filed 12-11-12; 8:45 am]
BILLING CODE 6560-50-P