[Federal Register Volume 77, Number 48 (Monday, March 12, 2012)]
[Rules and Regulations]
[Pages 14604-14677]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-4493]
[[Page 14603]]
Vol. 77
Monday,
No. 48
March 12, 2012
Part II
Environmental Protection Agency
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40 CFR Part 52
Approval and Promulgation of Implementation Plans; Arkansas; Regional
Haze State Implementation Plan; Interstate Transport State
Implementation Plan To Address Pollution Affecting Visibility and
Regional Haze; Final Rule
Federal Register / Vol. 77 , No. 48 / Monday, March 12, 2012 / Rules
and Regulations
[[Page 14604]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2008-0727; FRL-9637-4]
Approval and Promulgation of Implementation Plans; Arkansas;
Regional Haze State Implementation Plan; Interstate Transport State
Implementation Plan To Address Pollution Affecting Visibility and
Regional Haze
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA is partially approving and partially disapproving a
revision to the Arkansas State Implementation Plan (SIP) intended to
address the regional haze (RH) requirements of the Clean Air Act (CAA
or Act). In addition, EPA is partially approving and partially
disapproving the portion of the Arkansas Interstate Transport SIP
submittal that addresses the visibility requirement of section
110(a)(2)(D)(i)(II) for the 1997 8-hour ozone and 1997 fine particulate
matter (PM2.5) national ambient air quality standards
(NAAQS) that the Arkansas SIP contain adequate provisions to prohibit
emissions from interfering with measures required in another state to
protect visibility. EPA is approving certain core elements of the RH
SIP including: identification of affected Class I areas; determination
of baseline and natural visibility conditions; determination of Uniform
Rate of Progress (URP); reasonable progress goal (RPG) consultation and
long term strategy (LTS) consultation; coordination of RH and
reasonably attributable visibility impairment (RAVI); regional haze
monitoring strategy and other SIP requirements under 40 CFR
51.308(d)(4); commitment to submit periodic regional haze SIP revisions
and periodic progress reports describing progress towards the RPGs;
commitment to make a determination of the adequacy of the existing SIP
at the time a progress report is submitted; and consultation and
coordination with Federal land managers (FLMs). EPA is partially
approving and partially disapproving portions of other core elements of
the SIP including: identification of best available retrofit technology
(BART) eligible sources and subject to BART sources; requirements for
BART; Chapter 15 of the Air Pollution Control and Ecology Commission
(APCEC) Regulation No. 19, also known as the State's RH Rule; and the
LTS. EPA is disapproving Arkansas's reasonable progress goals (RPGs)
required under 40 CFR 51.308(d)(1). This action is being taken under
section 110 and part C of the CAA.
DATES: This final rule is effective on April 11, 2012.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R06-OAR-2008-0727. All documents in the docket are listed in
the Federal e-Rulemaking portal index at http://www.regulations.gov and
are available either electronically at http://www.regulations.gov or in
hard copy at EPA Region 6, 1445 Ross Ave., Dallas, TX 75202-2733. To
inspect the hard copy materials, please schedule an appointment during
normal business hours with the contact listed in the FOR FURTHER
INFORMATION CONTACT section. A reasonable fee may be charged for
copies.
FOR FURTHER INFORMATION CONTACT: Ms. Dayana Medina, Air Planning
Section (6PD-L), Environmental Protection Agency, Region 6, 1445 Ross
Avenue, Suite 700, Dallas, Texas 75202-2733, telephone 214-665-7241;
fax number 214-665-7263; email address [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us,'' ``our,'' or ``the Agency'' is used, we mean the EPA.
Overview
The CAA requires that states develop and implement SIPs to reduce
the pollution that causes visibility impairment over a wide geographic
area, known as Regional Haze (RH). CAA sections 110(a) and 169A.
Arkansas submitted a RH plan to us on September 23, 2008, and August 3,
2010, and submitted supplemental information on September 27, 2011. On
October 17, 2011, we proposed to partially approve and partially
disapprove certain elements of Arkansas's SIP.\1\ Today, we are taking
final action by partially approving and partially disapproving the
elements of Arkansas's RH SIP addressed in our proposed rule.
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\1\ 76 FR 64186.
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In addition to the RH requirements, CAA section 110(a)(2)(D)(i)(II)
requires that the Arkansas SIP ensure that emissions from sources
within Arkansas do not interfere with the SIP of any other state under
part C of the CAA to protect visibility. This requirement is commonly
referred to as the visibility prong of ``interstate transport,'' which
is also called the ``good neighbor'' provision of the CAA. Arkansas
submitted a SIP to meet the requirements of interstate transport for
the 1997 8-hour ozone and PM2.5 NAAQS on April 2, 2008, and
supplemented it on September 27, 2011. On October 17, 2011, we proposed
to partially approve and partially disapprove this submission as it
relied upon the State's RH Rule that we were proposing to partially
approve and partially disapprove. Id. Because the Interstate Transport
SIP is conditioned upon the BART determinations in the RH SIP, we are
also taking final action by partially approving and partially
disapproving elements of Arkansas's Interstate Transport SIP addressed
in our proposed rule.
Arkansas submitted Chapter 15 of APCEC Regulation No. 19, its State
RH Rule that addresses Arkansas's RH program, to address the
requirements in both its RH SIP and its Interstate Transport SIP. In
both the RH SIP and the Interstate Transport SIP, Arkansas adopted BART
emission limits for certain sources to meet the requirements of both
SIPs as stated in the State RH Rule. Based upon public comment, we are
disapproving the portion of the BART compliance provision found in the
State's RH Rule, Chapter 15 of APCEC Regulation No. 19, at Reg. 19.1504
(B), which requires each source subject to BART to install and operate
BART no later than six years after the effective date of Arkansas's RH
Rule for both the RH SIP and the Interstate Transport SIP. Because of
this disapproval, compliance with Arkansas's BART emission limitations
is within five years of approval of Arkansas RH SIP by EPA.
For a RH SIP, the process of establishing BART emission limitations
can be logically broken down into three steps. First, states identify
those sources which meet the definition of ``BART eligible source'' set
forth in 40 CFR 51.301. Second, states determine whether such sources
``emit any air pollutant which may reasonably be anticipated to cause
or contribute to any impairment of visibility in any such area'' (a
source which fits this description is ``subject to BART''). Third, for
each source subject to BART, states then identify the appropriate type
and the level of control for reducing emissions by conducting a five-
step analysis: Step 1: Identify All Available Retrofit Control
Technologies, Step 2: Eliminate Technically Infeasible Options, Step 3:
Evaluate Control Effectiveness of Remaining Control Technologies, Step
4: Evaluate Impacts and Document the Results, and Step 5: Evaluate
Visibility Impacts.
[[Page 14605]]
We agree with Arkansas's identification of sources that are BART
eligible, with the exception of the 6A Boiler at the Georgia-Pacific
Crossett Mill, which we find to be BART eligible. We also agree with
Arkansas's identification of subject to BART sources, with the
exception of the 6A and 9A Boilers at the Georgia-Pacific Crossett
Mill, which we find to be subject to BART. In addition, we are
approving a number of BART determinations from Arkansas's RH SIP. We
are not able to approve the following BART determinations made by
Arkansas: the sulfur dioxide (SO2), nitrogen dioxide
(NOX), and particulate matter (PM) BART determinations for
the Arkansas Electric Cooperative Corporation (AECC) Bailey Plant Unit
1 and the AECC McClellan Plant Unit 1; the SO2 and
NOX BART determinations for the American Electric Power
(AEP) Flint Creek Plant Boiler No. 1; the NOX BART
determination for the natural gas firing scenario and the
SO2, NOX, and PM BART determinations for the fuel
oil firing scenario for the Entergy Lake Catherine Plant Unit 4; the
SO2 and NOX BART determinations for both the
bituminous and sub-bituminous coal firing scenarios for the Entergy
White Bluff Plant Units 1 and 2; the BART determination for the Entergy
White Bluff Plant Auxiliary Boiler; the SO2 and
NOX BART determinations for the Domtar Ashdown Mill Power
Boiler No. 1; and the SO2, NOX and PM BART
determinations for the Domtar Ashdown Mill Power Boiler No. 2. In
reviewing the State's BART determinations for these pollutants and
units, we found that the State did not satisfy all the regulatory and
statutory requirements in making these BART determinations. We have
therefore determined it is appropriate to finalize our proposed
disapproval of the State's BART determinations for these units, because
we conclude that the flaws and omissions in the State's BART analyses
were significant, and that the State therefore lacked adequate record
support and a reasoned basis for its analyses, as required by the RH
Rule (RHR). As we previously noted, Arkansas submitted Chapter 15 of
APCEC Regulation No. 19, also known as the State's RH Rule, as a SIP
revision to address both RH and the visibility transport requirements.
With respect to RH, we are partially approving and partially
disapproving Chapter 15 of APCEC Regulation No. 19, such that our
disapproval is of those portions of the State's RH Rule that correspond
to portions of the Arkansas RH SIP we are disapproving. In particular,
we note that based upon public comment, we also are disapproving the
portion of the BART compliance provision found in Chapter 15 of APCEC
Regulation No. 19, at Reg. 19.1504(B), which requires each source
subject to BART to install and operate BART requirements no later than
six years after the effective date of the State's regulation. We are
approving the portion of the BART compliance provision that requires
each Arkansas subject to BART source to install and operate BART as
expeditiously as practicable, but in no event later than five years
after EPA approval of the Arkansas RH SIP, for those sources' BART
determinations we are approving. We find that this is consistent with
the requirements under 40 CFR 51.308(e)(iv). Arkansas's inclusion of
the compliance provision that would require Arkansas subject to BART
sources to install and operate BART no later than six years after the
effective date of the State's regulation (if such date takes place
before five years from EPA approval of the Arkansas RH SIP) is not a
required element of the RH SIPs to be developed and submitted by states
pursuant to section 169 of the CAA. We are also partially approving and
partially disapproving the State's submitted LTS because it relies on
portions of the RH SIP we are disapproving, including some of
Arkansas's BART emission limits. We are disapproving the State's RPGs
under 40 CFR 51.308(d)(1) because Arkansas did not consider the four
factors that states are required to consider in establishing RPGs under
the CAA and 40 CFR 51.308(d)(1)(A).
We are approving the remaining sections of the RH SIP submission.
This includes certain core elements of the SIP, including Arkansas's
(1) Identification of affected Class I areas; (2) determination of
baseline and natural visibility conditions; (3) determination of the
URP; (4) RPG consultation and LTS consultation; (5) coordination of
regional haze and reasonably attributable visibility impairment; (6)
monitoring strategy and other implementation requirements; (7)
commitment to submit periodic RH SIP revisions and periodic progress
reports describing progress towards the RPGs; (8) commitment to make a
determination of the adequacy of the existing SIP at the time a
progress report is submitted; (9) coordination with states and FLMs;
and (10) the following BART determinations from Arkansas's RH SIP:
The PM BART determination for the AEP Flint Creek Plant
Boiler No. 1.
The SO2 and PM BART determinations for the
natural gas firing scenario for the Entergy Lake Catherine Plant Unit
4.
The PM BART determinations for both the bituminous and
sub-bituminous coal firing scenarios for the Entergy White Bluff Plant
Units 1 and 2.
The PM BART determination for the Domtar Ashdown Mill
Power Boiler No. 1.
Arkansas stated in its April 2, 2008 submittal that it is relying
on Chapter 15 of APCEC Regulation No. 19, also known as the State's RH
Rule, to satisfy the requirements of section 110(a)(2)(D)(i)(II) that
emissions from Arkansas sources not interfere with measures required in
the SIP of any other state under part C of the CAA to protect
visibility. The Arkansas Department of Environmental Quality (ADEQ)
also stated in its April 2, 2008, submittal that it is not possible to
assess whether there is any interference with the measures in the
applicable SIP for another state designed to protect visibility for the
8-hour ozone and PM2.5 NAAQS until ADEQ submits and EPA
approves Arkansas's RH SIP. We proposed to partially approve and
partially disapprove this submission as it relied upon the State's RH
Rule that we were proposing to partially approve and partially
disapprove. In developing their RH SIP and RPGs, Arkansas and
potentially impacted States collaborated through the Central Regional
Air Planning (CENRAP) association. Each state developed its RH Plans
and RPGs based on the CENRAP modeling. The CENRAP modeling was based in
part on the emissions reductions each state intended to achieve by
2018. Some of the emissions reductions included in the CENRAP's
modeling and thus relied upon by other states, were from BART controls
on Arkansas subject to BART sources. Compliance with these BART
requirements will ensure that Arkansas obtains its share of the
emission reductions relied upon by other states to meet the RPGs for
their Class I areas. As already previously discussed in this final
rulemaking, Arkansas submitted Chapter 15 of APCEC Regulation No. 19,
also known as the State's RH Rule, as a SIP revision to address both RH
and the visibility transport requirements. With respect to the
visibility interstate transport SIP, we are partially approving and
partially disapproving the submitted Chapter 15 of APCEC Regulation No.
19, such that our disapproval is of those portions that correspond to
the submitted BART determinations we are disapproving. In response to
public comment, we note that we also are disapproving the portion of
the BART compliance
[[Page 14606]]
provision found in the APCEC Regulation No. 19, at Reg. 19.1504(B),
which requires each source subject to BART to install and operate BART
no later than six years after the effective date of the State's
regulation. Since compliance of Arkansas's subject to BART sources with
BART requirements now is solely dependent upon our approval of the RH
SIP, and since we are disapproving the portion of the RH SIP which
includes some of Arkansas's BART determinations, a portion of the
emission reductions committed to by Arkansas and relied upon by other
states will not be realized. Consequently, Arkansas's emissions will
interfere with other states' SIPs to protect visibility. Therefore, we
are partially approving and partially disapproving the portion of the
Arkansas Interstate Transport SIP submittal that addresses the
visibility requirement of section 110(a)(2)(D)(i)(II) that emissions
from Arkansas sources not interfere with measures required in the SIP
of any other state under part C of the CAA to protect visibility.
Under the CAA,\2\ we must, within 24 months following a final
disapproval, either approve a SIP or promulgate a Federal
Implementation Plan (FIP). We will of course consider, and would
prefer, approving a SIP if the state submits a revised plan that we can
approve before the expiration of the mandatory FIP clock for the
portions of the SIP we are disapproving in this rulemaking action.
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\2\ CAA section 110(c)(1).
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We originally provided a 30 day public comment period for this
action, which we extended after receiving several requests for an
extension on the comment period. We held a 66 day public comment period
for this action. Many public commenters disagreed with several aspects
of our proposal, expressing the belief that we should approve either
more portions of the Arkansas RH SIP or the SIP in its entirety. We
also received public comments agreeing with several aspects of our
proposal, expressing the belief that we should disapprove either more
portions of the Arkansas RH SIP or the SIP in its entirety. All public
comments and our responses are discussed in more detail in section III
of this final rulemaking action.
This action is being taken under section 110 and part C of the CAA.
Table of Contents
I. Summary of Our Proposal
A. Regional Haze
B. Interstate Transport of Pollutants and Visibility Protection
II. Final Decision
A. Regional Haze
B. Interstate Transport of Pollutants and Visibility Protection
III. Public Comments Received and Our Responses
A. Comments on Presumptive Emission Limits
B. Comments on Reasonable Progress Goals and Long Term Strategy
C. Comments on BART
1. Evaluation of the Most Stringent Level of Control in the BART
Analysis
2. Evaluation of Post-Combustion Controls in the BART Analysis
3. Comments on the State's PM BART Emission Limits We Proposed
to Approve
4. Comments on the Capacity Factor Used in the State's BART
Analyses for Entergy Lake Catherine and White Bluff
5. Comments on the State's Cost Evaluations
6. Comments on the August 2008 Revised BART Analysis for White
Bluff
7. Other Comments Related to BART
D. Comments on the Arkansas Pollution Control and Ecology
Commission Variance for Subject to BART Sources
E. Comments on BART and the Forthcoming MACT Requirements
F. Comments on Modeling
G. Comments on Legal Issues
1. Comments on Regional Haze
2. Comments on Interstate Transport and Visibility
H. Other Comments
I. Comments Requesting an Extension to the Public Comment Period
IV. Statutory and Executive Order Reviews
I. Summary of Our Proposal
On October 17, 2011, we published the proposal on which we are now
taking final action.\3\ We proposed to partially approve and partially
disapprove Arkansas's RH SIP revision submitted on September 23, 2008,
August 3, 2010, and supplemented on September 27, 2011. We also
proposed to partially approve and partially disapprove a portion of a
SIP revision we received from the State of Arkansas on April 2, 2008,
as supplemented on September 27, 2011, for the purpose of addressing
the ``good neighbor'' provisions of the CAA section 110(a)(2)(D)(i)(II)
with respect to visibility for the 1997 8-hour ozone NAAQS and the
PM2.5 NAAQS.
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\3\ 76 FR 64186.
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A. Regional Haze
We proposed to approve the State's identification of BART-eligible
sources, with the exception of the 6A Boiler at the Georgia-Pacific
Crossett Mill, which we find to be BART-eligible. We proposed to
approve the State's identification of subject to BART sources, with the
exception of the 6A and 9A Boilers at the Georgia-Pacific Crossett
Mill, which we find to be subject to BART. We also proposed to approve
certain core elements of the SIP, including Arkansas's (1)
identification of affected Class I areas; (2) determination of baseline
and natural visibility conditions; (3) determination of the URP; (4)
RPG consultation and LTS consultation; (5) coordination of regional
haze and reasonably attributable visibility impairment; (6) monitoring
strategy and other implementation requirements; (7) commitment to
submit periodic RH SIP revisions and periodic progress reports
describing progress towards the RPGs; (8) commitment to make a
determination of the adequacy of the existing SIP at the time a
progress report is submitted; (9) coordination with states and FLMs;
and (10) the following BART determinations from Arkansas's RH SIP: the
PM BART determination for the AEP Flint Creek Plant Boiler No. 1; the
SO2 and PM BART determinations for the natural gas firing
scenario for the Entergy Lake Catherine Plant Unit 4; the PM BART
determinations for both the bituminous and sub-bituminous coal firing
scenarios for the Entergy White Bluff Plant Units 1 and 2; and PM BART
determination for the Domtar Ashdown Mill Power Boiler No. 1.
We proposed to disapprove Arkansas's SO2,
NOX, and PM BART determinations for the AECC Bailey Plant
Unit 1 and the AECC McClellan Plant Unit 1; the SO2 and
NOX BART determinations for the AEP Flint Creek Plant Boiler
No. 1; the NOX BART determination for the natural gas firing
scenario and the SO2, NOX, and PM BART
determinations for the fuel oil firing scenario for the Entergy Lake
Catherine Plant Unit 4; the SO2 and NOX BART
determinations for both the bituminous and sub-bituminous coal firing
scenarios for the Entergy White Bluff Plant Units 1 and 2; the BART
determination for the Entergy White Bluff Plant Auxiliary Boiler; the
SO2 and NOX BART determinations for the Domtar
Ashdown Mill Power Boiler No. 1; and the SO2, NOX
and PM BART determinations for the Domtar Ashdown Mill Power Boiler No.
2 because they do not comply with our regulations under 40 CFR
51.308(e). We also proposed to partially approve and partially
disapprove the Arkansas RH Rule, Chapter 15 of APCEC Regulation No. 19,
such that our proposed disapproval was of those portions of the State's
RH Rule that correspond to portions of the Arkansas RH SIP we were
proposing to disapprove. We also proposed to partially approve and
partially disapprove the LTS under 40 CFR
[[Page 14607]]
51.308(d)(3) because Arkansas has not shown that the strategy is
adequate to achieve the RPGs set by Arkansas and by other nearby
states.
We proposed to disapprove the State's RPGs under 40 CFR
51.308(d)(1) because Arkansas did not consider the four factors states
are required to consider in establishing RPGs under the CAA and 40 CFR
51.308(d)(1)(A).
B. Interstate Transport of Pollutants and Visibility Protection
We proposed to partially approve and partially disapprove a portion
of a SIP revision we received from the State of Arkansas on April 2,
2008, as supplemented on September 27, 2011, for the purpose of
addressing the ``good neighbor'' provisions of the CAA section
110(a)(2)(D)(i) with respect to visibility for the 1997 8-hour ozone
NAAQS and the PM2.5 NAAQS. This SIP revision addressed the
requirement of section 110(a)(2)(D)(i)(II) that emissions from Arkansas
sources do not interfere with measures required in the SIP of any other
state under part C of the CAA to protect visibility. ADEQ participated
in the CENRAP visibility modeling development that assumed certain
SO2, NOX, and PM reductions from Arkansas's BART
sources. Compliance with these BART requirements will ensure that
Arkansas obtains its share of the emission reductions relied upon by
other states to meet the RPGs for their Class I areas. Since compliance
of Arkansas's subject to BART sources with BART requirements is
dependent upon our approval of the RH SIP, and since we proposed to
disapprove the portion of the RH SIP which includes some of Arkansas's
BART determinations, a portion of the emission reductions committed to
by Arkansas and relied upon by other states will not be realized and,
as a consequence, Arkansas's emissions will interfere with other
states' SIPs to protect visibility.
II. Final Decision
A. Regional Haze
With one exception, we are finalizing our action as proposed. As
discussed below, based upon public comment, we are adjusting our action
on the Arkansas RH Rule. We are partially approving and partially
disapproving the Arkansas RH SIP revision submitted on September 23,
2008, August 3, 2010, and supplemented on September 27, 2011. We are
approving Arkansas's identification of sources that are BART eligible,
with the exception of the 6A Boiler at the Georgia-Pacific Crossett
Mill, which we find to be BART-eligible. We are also approving
Arkansas's identification of subject to BART sources, with the
exception of the 6A and 9A Boilers at the Georgia-Pacific Crossett
Mill, which we find to be subject to BART.
We are disapproving Arkansas's SO2, NOX, and
PM BART determinations for the AECC Bailey Plant Unit 1 and the AECC
McClellan Plant Unit 1; the SO2 and NOX BART
determinations for the AEP Flint Creek Plant Boiler No. 1; the
NOX BART determination for the natural gas firing scenario
and the SO2, NOX, and PM BART determinations for
the fuel oil firing scenario for the Entergy Lake Catherine Plant Unit
4; the SO2 and NOX BART determinations for both
the bituminous and sub-bituminous coal firing scenarios for the Entergy
White Bluff Plant Units 1 and 2; the BART determination for the Entergy
White Bluff Plant Auxiliary Boiler; the SO2 and
NOX BART determinations for the Domtar Ashdown Mill Power
Boiler No. 1; and the SO2, NOX and PM BART
determinations for the Domtar Ashdown Mill Power Boiler No. 2. With
respect to RH, we are partially approving and partially disapproving
the Arkansas RH Rule, Chapter 15 of APCEC Regulation No. 19, such that
our disapproval is of those portions of the State's RH Rule that
correspond to portions of the Arkansas RH SIP we are disapproving and
our approval is of the remaining portions. We do note that in response
to comments received, we are making one change to the portions of the
Arkansas RH Rule we are approving from what we proposed to approve in
our October 17, 2011, proposed rulemaking. Specifically, in our
proposed rulemaking, we proposed to approve Reg. 19.1504(B), which
requires Arkansas's subject to BART sources to ``install and operate
BART as expeditiously as practicable, but in no event later than 6
years after the effective date of [the State RH Rule] or 5 years after
EPA approval of the Arkansas Regional Haze State Implementation Plan,
whichever comes first.'' As discussed in more detail in our response to
comments, because the State revised its rule to delete the provision
that would require Arkansas's subject to BART sources to comply with
BART within 6 years of the effective date of the State RH Rule, we are
disapproving this portion of the BART compliance provision found in
Chapter 15 of APCEC Regulation No. 19. We are partially approving and
partially disapproving the portion of the BART compliance provision
that requires each Arkansas subject to BART source to install and
operate BART as expeditiously as practicable, but in no event later
than five years after EPA approval of the Arkansas RH SIP. The
disapproval is of those portions of the State's RH Rule that correspond
to portions of the Arkansas RH SIP we are disapproving. We find that
this is consistent with the requirements under 40 CFR 51.308(e)(iv). We
are partially approving and partially disapproving the LTS under 40 CFR
51.308(d)(3). We are disapproving the State's RPGs under 40 CFR
51.308(d)(1).
We are approving the remaining sections of the RH SIP submission.
This includes certain core elements of the SIP, including Arkansas's
(1) identification of affected Class I areas; (2) determination of
baseline and natural visibility conditions; (3) determination of the
URP; (4) RPG consultation and LTS consultation; (5) coordination of
regional haze and reasonably attributable visibility impairment; (6)
monitoring strategy and other implementation requirements; (7)
commitment to submit periodic RH SIP revisions and periodic progress
reports describing progress towards the RPGs; (8) commitment to make a
determination of the adequacy of the existing SIP at the time a
progress report is submitted; (9) coordination with states and FLMs;
and (10) the following BART determinations from Arkansas's RH SIP:
The PM BART determination for the AEP Flint Creek Plant
Boiler No. 1.
The SO2 and PM BART determinations for the
natural gas firing scenario for the Entergy Lake Catherine Plant Unit
4.
The PM BART determinations for both the bituminous and
sub-bituminous coal firing scenarios for the Entergy White Bluff Plant
Units 1 and 2.
The PM BART determination for the Domtar Ashdown Mill
Power Boiler No. 1.
B. Interstate Transport of Pollutants and Visibility Protection
We are partially approving and partially disapproving a portion of
a SIP revision we received from the State of Arkansas on April 2, 2008,
as supplemented on September 27, 2011, for the purpose of addressing
the ``good neighbor'' provisions of the CAA section 110(a)(2)(D)(i)
with respect to visibility for the 1997 8-hour ozone NAAQS and the
PM2.5 NAAQS. Because Arkansas relied on Chapter 15 of APCEC
Regulation No. 19, to satisfy the requirements of section
110(a)(2)(D)(i)(II) that emissions from Arkansas sources not interfere
with
[[Page 14608]]
measures required in the SIP of any other state under part C of the CAA
to protect visibility, we are partially approving and partially
disapproving the submitted Chapter 15 of APCEC Regulation No. 19, such
that our disapproval is of those portions that correspond to the
submitted BART determinations we are disapproving. In response to
public comment, we note that we also are disapproving the portion of
the BART compliance provision found in the APCEC Regulation No. 19, at
Reg. 19.1504(B), which requires each source subject to BART to install
and operate BART no later than six years after the effective date of
the State's regulation. Since compliance of Arkansas's subject to BART
sources with BART requirements now is solely dependent upon our
approval of the RH SIP, and since we are disapproving the portion of
the RH SIP which includes some of Arkansas's BART determinations, a
portion of the emission reductions committed to by Arkansas and relied
upon by other states will not be realized and, as a consequence,
Arkansas's emissions will interfere with other states' SIPs to protect
visibility. Therefore, we are partially approving and partially
disapproving the portion of the Arkansas Interstate Transport SIP
submittal that addresses the visibility requirement of section
110(a)(2)(D)(i)(II) that emissions from Arkansas sources not interfere
with measures required in the SIP of any other state under part C of
the CAA to protect visibility.
III. Public Comments Received and Our Responses
During the public notice and comment period, we received 13 comment
letters both supporting and opposing our proposal. We received comments
from the ADEQ, the Utah Department of Environmental Quality (UDEQ), the
National Park Service, the Sierra Club, Entergy Arkansas Inc., the
American Electric Power/Southwestern Electric Power Company (AEP-
SWEPCO), the Arkansas Electric Cooperative Corporation, Domtar
Industries Inc., Nucor Steel-Arkansas, the Competitive Enterprise
Institute, the Utility Air Regulatory Group, PacifiCorp Energy, and the
Energy and Environmental Alliance of Arkansas. The comments we received
opposing our proposal contended that we had either overstepped our
bounds in proposing a partial disapproval or that we had not gone far
enough in our action and should fully disapprove Arkansas's RH SIP.
Many of the comments received are similar in nature and are grouped
together accordingly. Thus, many of the comments you will read are
representative of more than one comment letter. The comments are
summarized and addressed below. The full text received from these
commenters is included in the docket associated with this action.
A. Comments on Presumptive Emission Limits
Comment: The SO2 and NOX BART determinations
for the AEP Flint Creek Boiler No. 1 and Entergy White Bluff Plant
Units 1 and 2 meet the presumptive BART limits established in 40 CFR
part 51, appendix Y (BART Guidelines). In the Arkansas RH proposal, EPA
did not justify its decision that the presumptive BART limits are
unacceptable. EPA is insisting on a five factor analysis even when a
source can meet the presumptive limits. EPA's current interpretation of
the presumptive BART limits makes the presumptive BART limits
meaningless, contrary to the requirements of the CAA and the clear
intent of the BART Rule. The CAA singles out electric generating units
(EGUs) located at 750 megawatt (MW) power plants for specific BART
controls (42 U.S.C. 7491(b)(2)), and EPA adopted the presumptive BART
limits to establish the specific control levels required for these
EGUs. Since EPA went through extensive analysis to establish
presumptive BART limits, the only rational explanation is that EPA
intended for those limits to be meaningful. EPA is rationalizing its
decision on the Arkansas RH SIP as if the presumptive BART limits were
no longer a binding regulation, and there is concern that EPA is
attempting to establish new, more stringent presumptive BART limits
through case-by-case disapprovals of state BART determinations. Unless
and until EPA goes through notice and comment rulemaking to remove the
presumptive emission limits and establish other requirements consistent
with the CAA, the presumptive BART limits in the promulgated BART Rule
continue to establish the requirement that states must meet in their
regional haze SIPs for large coal-fired EGUs and EPA must approve a
state's BART determination if it meets the presumptive regulatory
limits.
Response: Our application of the presumptive BART limits in our
proposed rulemaking on the Arkansas RH SIP gives proper treatment of
presumptive BART limits and is consistent with the requirements of the
CAA and the intent of the BART Rule.
We note that the states generally have broad authority to decide
appropriate BART controls. However, the CAA gives EPA a more active
role in establishing BART emission limits for large power plants.\4\
The CAA states the following regarding emission limits for fossil-fuel
fired generating power plants having a total generating capacity in
excess of 750 MW:
---------------------------------------------------------------------------
\4\ 69 FR 39129 and CAA section 169(a)(4).
---------------------------------------------------------------------------
``In the case of a fossil-fuel fired generating power plant having
a total generating capacity in excess of 750 megawatts, the emissions
limitations required under this paragraph shall be determined pursuant
to guidelines, promulgated by the Administrator under paragraph (1).''
\5\
---------------------------------------------------------------------------
\5\ 42 U.S.C. 7491(b).
---------------------------------------------------------------------------
EPA disagrees that the CAA mandates specific control levels (i.e.
presumptive emission limits) for power plants with a total generating
capacity of 750 MW or greater. Rather, the CAA directed EPA to develop
guidelines for States to establish BART emission limits, and required
that power plants having a total generating capacity in excess of 750
MW follow the guidelines when establishing BART emission limits. In
response, in 2005 EPA promulgated the BART Guidelines, which provide a
detailed description of how a State must approach the BART
determination process for certain large EGUs, and required that the
determination of fossil-fuel fired power plants having a total
generating capacity greater than 750 MW must be made pursuant to the
BART Guidelines.\6\ As such, the plain reading of the CAA language
makes it clear the intent was to make the BART Guidelines mandatory for
EGUs larger than 750 MW, as opposed to presumptive limits. Therefore,
EPA's proposed rulemaking on the Arkansas RH SIP is not contrary to the
requirements of the CAA.
---------------------------------------------------------------------------
\6\ 40 CFR 51.308(e)(1)(ii)(B) and Appendix Y to Part 51.
---------------------------------------------------------------------------
The EPA went through extensive analysis to establish presumptive
BART emission limits, and intended these limits to be meaningful. As
stated in our proposed rulemaking on the Arkansas RH SIP, the purpose
of the presumptive limits in the BART Guidelines was to identify
controls that the Agency considered to be generally cost-effective
across all affected units. Because EPA's extensive analysis found that
these controls are generally cost-effective across all affected units
and were anticipated to result in a substantial degree of visibility
improvement, EPA concluded that such units should at least meet the
presumptive limits. However, EPA's BART Rule does not state that the
presumptive limits will represent the ``best available retrofit
[[Page 14609]]
controls'' for all EGUs at these larger power plants. Instead, EPA's
BART Rule and the BART Guidelines make clear that in developing the
presumptive emission limits, EPA made many design and technological
assumptions, and that the presumptive limits may not be BART in every
case. As such, the presumption in the BART Rule is not that the
presumptive limits will be BART in every case. Rather, the presumption
in the BART Rule is more accurately interpreted to be that the controls
reflected by the presumptive limits are cost-effective and will result
in considerable visibility improvement. EPA's intent was for these
generally cost-effective controls to be used in the State's BART
analysis considering the five factors specified in CAA section
169A(g)(2), and considering the level of control that is currently
achievable at the time that the BART analysis is being conducted.
We note the RHR states:
``States, as a general matter, must require owners and operators
of greater than 750 MW power plants to meet these BART emission
limits. We are establishing these requirements based on the
consideration of certain factors discussed below. Although we
believe that these requirements are extremely likely to be
appropriate for all greater than 750 MW power plants subject to
BART, a State may establish different requirements if the State can
demonstrate that an alternative determination is justified based on
a consideration of the five statutory factors.'' \7\
---------------------------------------------------------------------------
\7\ 70 FR 39131.
---------------------------------------------------------------------------
The RHR also states:
``If, upon examination of an individual EGU, a State determines
that a different emission limit is appropriate based upon its
analysis of the five factors, then the State may apply a more or
less stringent limit.'' \8\
---------------------------------------------------------------------------
\8\ 70 FR 39132.
Therefore, the presumptive emission limits in the BART Guidelines
are rebuttable.\9\ The presumptive emission limits apply to power
plants with a total generating capacity of 750 MW or greater insofar as
these sources are required to adopt emission limits at least as
stringent as the presumptive limits, unless after considering the five
statutory factors, the State determines that the presumptive emission
limits are not appropriate. Moreover, the RHR and BART Guidelines do
not exempt states from a five factor BART analysis, and that BART
analysis may result in a determination of BART emission limits that are
more or less stringent than the presumptive emission limits for subject
to BART sources. The RHR states:
---------------------------------------------------------------------------
\9\ 71 FR 60619.
``For each source subject to BART, 40 CFR 51.308(e)(1)(ii)(A)
requires that States identify the level of control representing BART
after considering the factors set out in CAA section 169A(g), as
follows:
States must identify the best system of continuous emission control
technology for each source subject to BART taking into account the
technology available, the costs of compliance, the energy and non-
air quality environmental impacts of compliance, any pollution
control equipment in use at the source, the remaining useful life of
the source, and the degree of visibility improvement that may be
expected from available control technology.'' \10\
---------------------------------------------------------------------------
\10\ 70 FR 39158.
As previously stated, the presumptive emission limits apply to
power plants with a total generating capacity of 750 MW or greater
insofar as these sources are required to adopt emission limits at least
as stringent as the presumptive limits, unless after considering the
five statutory factors, the State determines that a more or less
stringent emission limit is appropriate. Further, EPA is not attempting
to establish new, more stringent presumptive BART limits. As a matter
of fact, EPA's proposed rulemaking did not propose to establish
particular BART emission limits on any of Arkansas's subject to BART
sources. Instead, EPA's proposed rulemaking proposed to disapprove the
State's BART limits where the State adopted the NOX and
SO2 presumptive emission limits without conducting a proper
five factor BART analysis, as required by the RHR and the CAA, to
determine if an emission limit more or less stringent than the
presumptive limits is BART.
EPA disagrees that our approach is not consistent with the RHR and
that we must undergo notice and comment rulemaking to follow our
application of the presumptive BART limits for large coal-fired EGUs.
EPA reiterates that the RHR and the BART Guidelines make clear that the
presumptive limits are rebuttable and may not necessarily be the
appropriate level of control for all EGUs.\11\ Therefore, EPA is not
required to approve every BART determination that meets the presumptive
emission limits, especially when there is no analysis that supports the
state's decision in adopting the presumptive limit instead of a more or
less stringent emission limit.
---------------------------------------------------------------------------
\11\ 71 FR 60619.
---------------------------------------------------------------------------
Comment: The BART Rule shows that an alternative analysis is
required only when a source cannot meet the presumptive limits (40 CFR
part 51, appendix Y, section IV.E.5). As such, only when EGUs cannot
meet presumptive NOX limits using current combustion control
technology should other technologies be considered. The plain reading
of the BART Rule is contrary to EPA's proposal to disapprove the
NOX presumptive emission limits adopted for BART by
Arkansas.
Response: Regarding NOX presumptive emission limits, the
BART Rule provides that:
``For coal-fired EGUs greater than 200 MW located at greater than
750 MW power plants and operating without post-combustion controls
(i.e. Selective Catalytic Reduction or Selective Non-Catalytic
Reduction), we have provided presumptive NOX limits,
differentiated by boiler design and type of coal burned. You may
determine that an alternative control level is appropriate based on a
careful consideration of the statutory factors. For coal-fired EGUs
greater than 200 MW located at power plants 750 MW or less in size and
operating without post-combustion controls, you should likewise presume
that these same levels are cost-effective, unless you determine that an
alternative control level is justified based on consideration of the
statutory factors.'' \12\
---------------------------------------------------------------------------
\12\ 70 FR 39171.
---------------------------------------------------------------------------
The BART Rule does not contain language stating that an alternative
analysis is required only when a source cannot meet the presumptive
limits. The BART Guidelines provides the following:
``Most EGUs can meet these presumptive NOX limits
through the use of current combustion control technology, i.e. the
careful control of combustion air and low-NOX burners. For
units that cannot meet these limits using such technologies, you should
consider whether advanced combustion control technologies such as
rotating opposed fire air should be used to meet these limits.'' \13\
---------------------------------------------------------------------------
\13\ Appendix Y to Part 51, section IV.E.5.
---------------------------------------------------------------------------
The intent of this language is to communicate that EPA believes
that the large majority of units can at least meet the presumptive
limits at relatively low costs (i.e. without post-combustion controls).
Because of this, EPA found it appropriate to require EGUs greater than
200 MW located at greater than 750 MW power plants and without post-
combustion controls to at least meet the presumptive limit, unless
based on an evaluation of the statutory factors the State found a more
or less stringent emission limit is appropriate.\14\ The language in
the BART Guidelines should not be misinterpreted to mean that sources
capable of meeting the presumptive limits may forego a BART analysis or
that they need not consider post-combustion controls if they can
[[Page 14610]]
meet the NOX presumptive limits with combustion controls.
States have a duty to evaluate the five statutory factors,\15\ and
should consider the level of control that is currently achievable at
the time the BART analysis is conducted.\16\
---------------------------------------------------------------------------
\14\ 70 FR 39132.
\15\ See 40 CFR 51.308(e)(1)(ii)(A) and 42 U.S.C. 7491(g)(2).
\16\ 70 FR 39171.
---------------------------------------------------------------------------
Comment: The preamble discussion of the BART Rule shows that the
presumptive BART limits were intended to establish a presumptively
acceptable BART determination for large EGUs. The preamble to the
proposed May 5, 2004, and final July 5, 2005, BART Rule demonstrate the
clear intent that the presumptive limits in the BART Rule are BART. In
its proposed disapproval of the Arkansas RH SIP, EPA ignores this.
Nothing in the BART Rule or the preamble to the rule requires that a
source achieve a more stringent emission rate if the emission controls
allow the source to meet the presumptive emission limits. Section
169A(g) of the CAA requires a balancing of the five statutory factors
when a State is determining BART. The preamble to the BART Rule
describes the presumptive limits as reasonable, cost-effective,
extremely likely to be appropriate and likely to result in a
significant degree of visibility improvement. The term ``presumptive
minimum'' or a discussion of controls more stringent than the
presumptive limits is not found in the BART Rule.
Response: The EPA disagrees that the presumptive BART limits in the
BART Rule were intended to establish BART in every case, as nothing on
the record states that the presumptive limits represent the ``best
available retrofit controls'' for all EGUs at these large power plants.
On the contrary, EPA's BART Rule and the BART Guidelines make clear
that in developing the presumptive emission limits, EPA made many
design and technological assumptions, and that the presumptive limits
may not be BART in every case. As such, the presumption in the BART
Rule is not that the presumptive limits will be BART in every case.
Rather, the presumption in the BART Rule is more accurately interpreted
to be that the controls reflected by the presumptive limits are cost-
effective and will result in considerable visibility improvement.
EPA's proposed rulemaking on the Arkansas RH SIP did not propose to
require Arkansas's subject to BART sources to achieve an emission rate
more stringent than the presumptive emission limits. Rather, EPA's
proposed rulemaking proposed to disapprove the BART emission limits for
subject to BART sources where the State adopted presumptive emission
limits without conducting a proper BART five factor analysis. Only
after the State conducts a proper evaluation of the five statutory
factors, as required by 40 CFR 51.308(e)(1)(ii)(A) and section 169A(g)
of the CAA, or EPA conducts one in the context of a FIP, will it be
demonstrated whether any of Arkansas's subject to BART sources must
achieve an emission rate more (or less) stringent than the presumptive
limits.
EPA agrees that section 169A(g) of the CAA requires a balancing of
the five statutory factors when a State is determining BART.\17\ EPA is
also in agreement that the preamble to the BART Rule describes the
presumptive limits as reasonable, cost-effective, extremely likely to
be appropriate and likely to result in a significant degree of
visibility improvement. However, EPA reiterates that the BART Rule does
not state that the presumptive limits will represent the ``best
available retrofit controls'' for all EGUs at these larger power
plants. EPA agrees that the term ``presumptive minimum'' or a
discussion of controls more stringent than the presumptive limits are
not explicitly found in the BART Rule, but the BART Rule does require
that affected sources achieve at least the level of control represented
by the presumptive limits, unless a proper evaluation of the five
statutory factors demonstrates that a different level of control is
BART for the affected sources.
---------------------------------------------------------------------------
\17\ 42 U.S.C. 7491(g)(2).
---------------------------------------------------------------------------
Comment: The CAA gives states discretion to make BART
determinations, and while a state may choose to establish a limit that
is more stringent than the presumptive limit, there is nothing in the
BART Rule that would require a state to do so. There are a number of
examples in the BART regulations and in the preambles to the proposed
and final BART Rule, showing that a state has discretion to choose to
demonstrate an alternative control level. The preamble to the BART Rule
recognizes that in some limited cases, where the source cannot meet the
presumptive limit, a state could demonstrate an alternative level of
control. The plain meaning of the BART Rule and the preamble discussion
of the presumptive limits supports a reading of the BART Rule that
discretion rests with a state, not EPA, as to whether the presumptive
limits are reasonable.
Response: The EPA agrees with the comment that the CAA gives states
discretion to make BART determinations, and that there are examples in
the BART regulations and in the preambles to the proposed and final
BART Rule showing that a state has discretion to choose an alternative
control level after considering the five statutory factors. However,
section 169A(g) of the CAA requires States to consider these statutory
factors in determining BART for affected sources.\18\ If a proper
evaluation of the five statutory factors demonstrates that an emission
limit more or less stringent than the presumptive limit is BART for the
subject to BART source in question, then the State must require the
source to comply with such emission limit. EPA agrees that states have
considerable discretion in making BART determinations, but if the State
has not conducted a proper evaluation of the five statutory factors, as
required by 40 CFR 51.308(e)(1)(ii)(A) and section 169A(g) of the CAA,
the State cannot determine that the presumptive limits are the ``best
available retrofit controls'' for Arkansas's affected sources.
---------------------------------------------------------------------------
\18\ 42 U.S.C. 7491(g)(2).
---------------------------------------------------------------------------
Comment: The EPA proposes to reject Arkansas's BART determinations
that rely on the presumptive BART limits codified in EPA's own BART
Guidelines, arguing that states are required to perform a case-by-case
BART analysis in every instance and that they can never rely on the
presumptive limits (76 FR 64201). The BART rules state that the
presumptive limits should be adopted unless the state BART-determining
authority determines that an alternative control level is justified
based on a consideration of the statutory factors (70 FR 39171). Given
the assessment EPA undertook to determine the presumptive BART limits
and that EPA has determined in a formally codified rule that they are
likely to be suitable as BART limits in nearly every circumstance to
which they apply- except to the extent states make a determination
otherwise in a particular case- states properly have discretion to
adopt the presumptive limits. The determination as to whether the
presumptive limits should or should not apply is one that is well
within the discretion of the state. There is little reason for EPA to
have established the presumptive BART limits if states cannot rely on
them. If EPA requires a case-by-case analysis for every facility to
repeatedly test the assumptions underlying the presumptive limits, this
would result in a senseless approach that would vitiate the
establishment of the presumptive limits. This would be contrary to
EPA's own nationally applicable regulations developed as a product of
notice-and-comment
[[Page 14611]]
rulemaking. If a specific assessment is required in every case, there
is no reason to have a presumptive limit in the first place.
Regulations, like statutes, should not be interpreted in a manner that
is more stringent than the plain language requires. Where there is no
clear and compelling evidence that presumptive limits cannot be BART
for a given source, EPA should accept state BART determinations that
rely on the presumptive limits.
Response: The EPA agrees that the State has considerable discretion
in making BART determinations, but if the State has not conducted a
proper evaluation of the five statutory factors, as required by 40 CFR
51.308(e)(1)(ii)(A) and section 169A(g) of the CAA, the State cannot
determine that the presumptive limits are the ``best available retrofit
controls'' for Arkansas's affected sources. With regard to the comment
that there is little reason for EPA to have established presumptive
emission limits if states cannot rely on them, EPA notes that the
purpose of the presumptive limits in the BART Guidelines was to
identify controls that the Agency considered to be generally cost-
effective across all affected units. Because EPA's extensive analysis
found that these controls are generally cost-effective across all
affected units and were anticipated to result in a substantial degree
of visibility improvement, EPA concluded that such units should at
least meet the presumptive limits. Presumptive limits, thus, rather
than being senseless, provide a starting point for a source specific
analysis.
We agree that regulations, like statutes, should not be interpreted
in a manner that is more stringent than the plain language. However, we
do not agree that our application of the presumptive limit is more
stringent than what is required under the CAA and the RHR. Rather, our
application of the presumptive limit is in keeping with the plain
language of the CAA and the RHR. Under the RHR, presumptive limits were
promulgated to provide a path for states to follow when analyzing BART
for particular EGUs. The BART Rule has presumptive limits that act as a
starting point for the establishment of BART emission limits unless the
state's analysis indicates that an emission limit more or less
stringent than the presumptive limit is required. Please see our
response to other comments for our discussion of the requirements of
the CAA visibility program and the RHR.
EPA disagrees that we should accept state BART determinations that
rely on the presumptive limits in every case as long as there is no
clear and compelling evidence that presumptive emission limits cannot
be BART for a given source. There is no language indicating this in the
CAA, the RHR, or the BART Guidelines. On the contrary, EPA's BART Rule
and the BART Guidelines make clear that in developing the presumptive
emission limits, EPA made many design and technological assumptions,
and that the presumptive limits may not be BART in every case. EPA's
intent was for the presumptive limits to be used in the State's BART
analysis considering the five factors specified in CAA section
169A(g)(2), and considering the level of control that is currently
achievable at the time that the BART analysis is being conducted.
Comment: The intent of the RHR was to gain reasonable progress in
visibility improvements in Class I areas, with the ultimate goal being
to achieve background levels of visibility by the year 2064. The BART
Guidelines developed presumptive BART emission limits that are cost-
effective and capable of meeting reasonable progress. ADEQ followed
EPA's BART Guidelines in establishing presumptive limits as BART for
the AEP Flint Creek Boiler No. 1 and Entergy White Bluff Units 1 and 2.
In its proposed rule, EPA ignores its own guidance to utilize
presumptive limits and proposes to go beyond the cost-effective
presumptive limits at Arkansas's EGUs in the near term and to
essentially perform a BACT analysis for these units, as per EPA's PSD
regulations. Going beyond the presumptive limits denies the cost-
effectiveness afforded by the presumptive limits and places an
unnecessary burden on Arkansas electricity ratepayers. EPA's approach
is beyond what is required to comply with the RHR, as requiring
standards more stringent than EPA's own presumptive limits is
unnecessary in order to demonstrate reasonable progress. Implementing
the presumptive limits as BART meets the intent of the RHR and EPA
should accept ADEQ's proposed BART requirements for units subject to
presumptive limits.
Response: With regard to the comment that the BART Guidelines
developed presumptive emission limits that are cost-effective and
capable of meeting reasonable progress, EPA notes that the RHR states
the following concerning SO2 and NOX presumptive
limits: ``Based on our analysis of emissions from power plants, we
believe that applying these highly cost-effective controls at the large
power plants covered by the guidelines would result in significant
improvements in visibility and help to ensure reasonable progress
toward the national visibility goal.'' \19\
---------------------------------------------------------------------------
\19\ 70 FR 39131.
---------------------------------------------------------------------------
The comment appears to suggest that a state's adoption of the
presumptive limits will result in achieving reasonable progress. The
EPA notes that the RHR stated that applying the highly cost-effective
controls reflected by the presumptive limits would result in
significant visibility improvement that would help to ensure reasonable
progress, not that it would necessarily ensure reasonable progress.
Furthermore, for a state to achieve reasonable progress during the
first implementation period, it must also look at point sources beyond
those that are subject to BART as well as at non-point sources and
determine, based on consideration of the four statutory factors under
40 CFR 51.308(d)(1)(i), whether it is reasonable to require these
sources to install additional pollution controls. Therefore, even if a
state satisfies the BART requirements, satisfaction of the reasonable
progress requirements cannot be met by complying with BART requirements
alone. In addition, the EPA notes that the BART Guidelines make clear
that the presumptive limits may not be appropriate for all affected
units.20,21,22
---------------------------------------------------------------------------
\20\ 70 FR 39131.
\21\ 70 FR 39132.
\22\ 71 FR 60619.
---------------------------------------------------------------------------
The EPA is not ignoring its own guidance to utilize presumptive
limits, as the BART Rule does not suggest the presumptive limits should
be viewed as establishing a safe harbor from more stringent regulation
under the BART provisions. The EPA's proposed rulemaking did not
propose particular emission limits more stringent than the presumptive
limits for Arkansas EGUs. Instead, the EPA's proposed rulemaking stated
that Arkansas must conduct a proper evaluation of the five statutory
factors, as required by 40 CFR 51.308(e)(1)(ii)(A) and section 169A(g)
of the CAA, before determining whether the presumptive emission limits
are the ``best available retrofit controls'' for affected units.
Therefore, the EPA does not believe that requiring the State to conduct
a proper evaluation of the five statutory factors places an unnecessary
burden on Arkansas electricity ratepayers.
The EPA disagrees with the comment that EPA is requiring Arkansas
to perform a PSD BACT analysis for affected EGUs. The EPA notes the
comment is not specific in terms of explaining what aspect of our
proposed rulemaking led to the belief that EPA is requiring a PSD BACT
analysis for
[[Page 14612]]
affected EGUs. However, the proposed BART Rule did note that the
process for a BART analysis is very similar to the BACT review as
described in the New Source Review Workshop Manual (Draft, October
1990).\23\ The proposed BART Rule also explained that although very
similar in process, BART reviews differ in many respects from the BACT
review. The proposed BART Rule explained these differences as follows:
---------------------------------------------------------------------------
\23\ 69 FR 25218.
---------------------------------------------------------------------------
``First, because all BART reviews apply to existing sources, the
available controls and the impacts of those controls may differ from
source to source. Second, the CAA requires you to take slightly
different factors into account in determining BART and BACT * * *
Because of the differences in terminology, the BACT review process
tends to encompass a broader range of factors * * * Finally, for the
BART analysis, there is no minimum level of control required, while any
BACT emission limitation must be at least as stringent as any NSPS that
applies to the source.'' \24\
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\24\ 69 FR 25218.
---------------------------------------------------------------------------
Because of the similarities in the two processes, it is
understandable that there may be some misunderstanding regarding our
proposed rulemaking to mean that EPA is requiring subject to BART
sources to conduct a PSD BACT analysis. Our statement that subject to
BART sources must consider the ``most stringent option (i.e. maximum
level of control each technology is capable of achieving) as well a
reasonable set of options for analysis,'' \25\ may have been
misinterpreted to mean that we are requiring a PSD BACT analysis. We
are not requiring a PSD BACT analysis. As explained in our proposed
rulemaking, the BART Guidelines provide that in identifying all
options, you must identify the most stringent option (i.e. maximum
level of control each technology is capable of achieving) as well as a
reasonable set of options for analysis.\26\ The RHR also provides that
in establishing source specific BART emission limits, the State should
identify and consider in the BART analysis the maximum level of
emission reduction that has been achieved in other recent retrofits at
existing sources in the source category.\27\ Furthermore, the BART
Guidelines state that ``[t]echnologies required as BACT or LAER are
available for BART purposes.'' \28\ The guidelines instruct: ``You are
expected to identify potentially applicable retrofit control
technologies that represent the full range of demonstrated
alternatives. Examples of general information sources are to consider
include: The EPA's Clean Air Technology center, which includes the
RACT/BACT/LAER Clearinghouse (RBLC) * * *'' \29\ Our rulemaking is
consistent with the RHR and the BART Rule, and does not require
Arkansas's subject to BART sources to conduct a PSD BACT analysis.
---------------------------------------------------------------------------
\25\ See our proposed rulemaking for the Arkansas RH SIP (76 FR
64186).
\26\ See Appendix Y to Part 51.
\27\ 64 FR 35740.
\28\ 70 FR 39,164.
\29\ 70 FR 39,164.
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The EPA disagrees with the comment that EPA's approach in our
proposed rulemaking for the Arkansas RH SIP is beyond what is required
to comply with the RHR and that requiring standards more stringent than
EPA's own presumptive limits is unnecessary in order to demonstrate
reasonable progress. As already explained elsewhere in our response to
other comments, EPA's rulemaking on the Arkansas RH SIP is not
requiring Arkansas affected sources to meet standards more stringent
than the presumptive emission limits. Arkansas must conduct a proper
evaluation of the five statutory factors, as required by 40 CFR
51.308(e)(1)(ii)(A) and section 169A(g) of the CAA, before determining
whether the presumptive emission limits are the ``best available
retrofit controls'' for affected units. Furthermore, 40 CFR
51.308(e)(1)(ii)(A) and section 169A(g) of the CAA require that states
consider the five statutory factors when making BART determinations,
and the State cannot determine whether or not emission limits more
stringent than the presumptive emission limits are necessary to
demonstrate reasonable progress when a proper evaluation of the five
statutory factors has not been conducted.
Comment: Appendix Y is very clear that when it comes to presumptive
BART NOX emissions limits for qualifying EGUs, Arkansas must
require these EGUs to meet the presumptive BART emissions limits in
Appendix Y. Not only does Arkansas have broad discretion to apply
presumptive NOX limits, but Appendix Y actually requires
this. Arkansas followed this approach in its RH SIP. In its proposed
rule, EPA now claims that the presumptive limits are something
completely different than the straightforward directive contained in
the Code of Federal Regulations, claiming that they are the starting
point in a BART determination and that sources must ``at least'' meet
these emission limits. Using the word ``at least'' implies that
presumptive limits constitute a minimally acceptable degree of control
that would constitute BART. Nothing in the CAA, RHR, or Appendix Y ever
states or implies this. EPA also stated in its proposal for the
Arkansas RH SIP that ``nothing on the record would support the
conclusion that the presumptive limits represent `best available
retrofit controls' for all EGUs at these large power plants'' (76 FR
64201). EPA is attempting to avoid the broad statements it previously
made regarding the applicability of the ``presumptive BART''
NOX emissions limits. EPA's statements in previous
rulemakings demonstrate that in almost all cases, the presumptive BART
limits should apply, and the only instance when they should not apply
is to atypical instances when a source is able to show through a five
factor test that it is not able to meet the presumptive emission rates,
even if the expected control technology were installed. EPA's proposal
for the Arkansas RH SIP also incorrectly claims that in Appendix Y, EPA
simply concluded that it could not reach a generalized conclusion as to
the appropriateness of more stringent controls for categories of EGUs
(76 FR 64201). EPA's failure to recognize the proper role of
presumptive BART NOX emissions limits is arbitrary and
capricious because EPA acted in excess of statutory jurisdiction,
authority, or limitations (North Carolina v. EPA, 531 F.3d 896, 906, DC
Circuit 2008).
Response: The EPA disagrees that Appendix Y (i.e. the BART
Guidelines) makes the presumptive emission limits mandatory for all
qualifying EGUs. The comment that states have broad discretion to apply
presumptive NOX limits contradicts the comment that the BART
Guidelines require states to adopt the presumptive limits. The BART
Guidelines make clear that the presumptive emission limits are
rebuttable.\30\ Referring to the NOX presumptive emission
limits, the BART Rule states that the presumptive emission limits may
not be appropriate for all sources, as they are ``presumptions only.''
\31\ The presumptive emission limits apply to power plants with a total
generating capacity of 750 MW or greater insofar as these sources are
required to adopt emission limits at least as stringent as the
presumptive limits, unless after considering the five statutory
factors, the State determines that the presumptive emission limits are
not appropriate. Moreover, the CAA, the RHR, and the BART Guidelines do
not
[[Page 14613]]
exempt the State from a five factor BART analysis or even provide the
State with discretion to determine whether or not to conduct an
analysis of the five statutory factors when the State has adopted the
presumptive emission limits.
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\30\ 71 FR 60619.
\31\ 70 FR 39134.
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We are not claiming that the presumptive emission limits are
anything else than what is contained in the RHR and the BART
Guidelines. With regard to the comment that nothing in the CAA, RHR, or
Appendix Y ever states or implies that the presumptive limits are the
starting point in a BART determination, EPA notes that there is no
mention of the presumptive emission limits in the CAA. Further, in
response to comments on the proposed BART Guidelines that the
presumptive SO2 EGU limits should be more stringent, EPA
justified its decision not to establish more stringent SO2
presumptive limits, by explaining in the preamble to the final BART
Rule that ``[i]f, upon examination of an individual EGU, a State
determines that a different emission limit is appropriate based upon
its analysis of the five factors, then the State may apply a more or
less stringent limit.'' \32\ Similar statements are made elsewhere in
the BART Rule. Clearly, the RHR and the BART Rule do not suggest the
presumptive limits should be viewed as establishing a safe harbor from
more stringent regulation under the BART provisions. EPA stands by the
statement made in its proposed rulemaking on the Arkansas RH SIP that
``nothing on the record would support the conclusion that the
presumptive limits represent `best available retrofit controls' for all
EGUs at these power plants.'' \33\ EPA does not find this statement to
be inconsistent with the RHR and BART Guidelines. As already explained
above, EPA is clear in the BART Rule and the BART Guidelines that the
presumptive limits may not be appropriate for every EGU.\34\
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\32\ 70 FR 39132.
\33\ 76 FR 64201.
\34\ 70 FR 39131, 39132, and 39134.
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EPA disagrees with the comment that the only instance when the
presumptive emission limits should not apply is to atypical instances
when a source is able to show through a five factor test that it is not
able to meet the presumptive emission rates. The comment suggests that
for power plants with a total generating power capacity greater than
750 MW, the RHR and the BART Rule provide that an evaluation of the
five statutory factors for these units is merely a vehicle for
justifying adoption of a BART emission limit less stringent than the
presumptive limit. This is clearly not the intent of the RH regulations
and section 169A(g) of the CAA.\35\ As explained above, in response to
comments on the proposed BART Guidelines that the presumptive
SO2 EGU limits should be more stringent, EPA justified its
decision not to establish more stringent presumptive emission limits by
explaining that after considering the five statutory factors, States
may find that a more or less stringent emission limit is BART.\36\
Similar statements are made elsewhere in the BART Rule. The BART Rule
states the following:
``We recognize that while some scrubber units currently achieve
reductions greater than 95 percent, not all units can do so. The
individual units that currently achieve greater than 95 percent control
efficiencies do not necessarily represent the wide range of unit types
across the universe of BART-eligible sources * * * In addition, we note
that the presumption does not limit the States' ability to consider
whether a different level of control is appropriate in a particular
case.'' \37\
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\35\ See 40 CFR 51.308(e)(1)(ii)(A) and 42 U.S.C. 7491(g)(2).
\36\ 70 FR 39132.
\37\ 70 FR 39132.
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Further, in the BART Rule, EPA justified its decision not to
establish presumptive NOX limits based on the use of
selective catalytic reduction (SCR) for units other than cyclone units,
stating the following:
``For other units, we are not establishing presumptive limits based
on the installation of SCR. Although States may in specific cases find
that the use of SCR is appropriate, we have not determined that SCR is
generally cost-effective for BART across unit types.'' \38\
---------------------------------------------------------------------------
\38\ 70 FR 39136.
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Therefore, EPA stands by its statement in the proposed rulemaking
on the Arkansas RH SIP that in the BART Guidelines, EPA simply
concluded that it could not reach a generalized conclusion as to the
appropriateness of more stringent controls for categories of EGUs.
The EPA's application of presumptive BART NOX emissions
limits to Arkansas's RH BART determinations is not arbitrary and
capricious, because EPA is acting in accordance with the CAA and the
RHR. The EPA's disapproval of Arkansas's BART determinations that
adopted the presumptive BART SO2 and NOX emission
limits without conducting a proper five factor BART analysis is a
proper exercise of EPA's authority under the Act. Congress crafted the
CAA to provide for states to take the lead in developing implementation
plans consistent with the laws and regulations, but balanced that
decision by requiring EPA to review the plans to determine whether a
SIP meets the requirements of the CAA. The EPA's review of SIPs is not
limited to support and cooperation in implementation of a state SIP nor
is it to simply approve state decisions. When reviewing state SIPs, EPA
must consider not only whether the state considered the appropriate
factors in making decisions but acted reasonably in doing so. In
undertaking such a review, EPA does not usurp the state's authority but
ensures that such authority is reasonably exercised. EPA has reviewed
Arkansas's BART determinations for NOX that adopted the
presumptive limits without conducting a proper five factor BART
analysis, and we find that Arkansas did not follow the requirements of
the RHR; that is the basis for our disapproval of those BART
determinations. For a more detailed explanation of state and EPA
authority in the development and approval of RH SIPs as well as of how
EPA's action does not encroach on state authority and is consistent
with the CAA and the RHR, please see our response to comments under
section III.F, titled ``Comments on Legal Issues,'' of this final
rulemaking.
Comment: The EPA's treatment of presumptive limits in its proposed
partial disapproval of AR RH SIP is inconsistent with EPA's BART
Guidelines. EPA departed from the BART Guidelines and made the use of
presumptive limits meaningless when it disapproved BART determinations
for Entergy's Lake Catherine Unit 4 and White Bluff Units 1 and 2 that
adopt the presumptive limits. When EPA departs from the BART
Guidelines, it is going beyond the scope of the CAA's visibility
protection program. For certain categories of EGUs, EPA's BART
Guidelines provide presumptive limits that the states rely upon in
making BART determinations. The presumptive limit framework outlined in
the BART Guidelines is intended to function like presumptive evidence
in litigation where the evidence is received and treated as sufficient
until it is discredited. Presumptive limits should represent BART until
and unless they are rebutted. This is not how EPA approached
presumptive limits in reviewing the Arkansas RH SIP. The BART
Guidelines provide that if a state wishes to do a case-by-case BART
then there are presumptive levels of controls for SO2 and
NOX that can be adopted for certain EGUs that the state
finds are
[[Page 14614]]
subject to BART. This is what Arkansas did and should be approved by
EPA.
Response: The EPA disagrees that the EPA's treatment of the
presumptive limits in its proposed rulemaking on the Arkansas RH SIP is
inconsistent with EPA's BART Guidelines and made use of the presumptive
limits meaningless. EPA notes that Entergy Lake Catherine Unit 4 is
currently permitted to burn natural gas and fuel oil. EPA's BART
Guidelines do not establish presumptive emission limits for units that
burn natural gas and/or fuel oil, therefore the ADEQ did not adopt any
presumptive limits for Entergy Lake Catherine Unit 4. With regard to
Entergy White Bluff Units 1 and 2, as stated in our proposed rulemaking
on the Arkansas RH SIP, the purpose of the presumptive limits in the
BART Guidelines was to identify controls that the Agency considered to
be generally cost-effective across all affected units. Because EPA's
extensive analysis found that these controls are generally cost-
effective across all affected units and were anticipated to result in a
substantial degree of visibility improvement, EPA concluded that such
units should at least meet the presumptive limits, unless a more or
less stringent limit is found to be BART after the state considers the
five statutory factors. EPA's intent was for these generally cost-
effective controls to be used in the State's BART analysis considering
the five factors specified in CAA section 169A(g)(2), and considering
the level of control that is currently achievable at the time that the
BART analysis is being conducted. Further, 40 CFR 51.308(e)(1)(ii)(A)
requires that States identify the level of control representing BART
after considering the five statutory factors set out in CAA section
169A(g).\39\
---------------------------------------------------------------------------
\39\ 70 FR 39158.
---------------------------------------------------------------------------
We disagree that the presumptive limits should represent BART until
and unless they are rebutted. We reiterate that nothing on the record
states that the presumptive limits represent the ``best available
retrofit controls'' for all EGUs at these large power plants. On the
contrary, EPA's BART Rule and the BART Guidelines make clear that in
developing the presumptive emission limits, EPA made many design and
technological assumptions, and that the presumptive limits may not be
BART in every case.
While the BART Guidelines provide that there are presumptive levels
of controls for SO2 and NOX that can be adopted
for certain EGUs that the state finds are subject to BART, this is true
only after the state has considered the five statutory factors to
determine whether a more or less stringent emission limit is BART. In
the BART Guidelines, EPA noted that the presumptive limits represented
current control capabilities at the time the BART Rule was promulgated,
and that we expected that scrubber technology would continue to improve
and control costs continue to decline.\40\ Therefore, in their
evaluation of the five statutory factors, states must consider the
level of control that is currently achievable at the time the BART
analysis is being conducted.
---------------------------------------------------------------------------
\40\ 70 FR 39144.
---------------------------------------------------------------------------
The presumptive limit framework could be compared to the
presumptive evidence in litigation. However, the comment
mischaracterizes the role of presumptive evidence in litigation as
simply to be received and treated as sufficient until it is
discredited. Presumptive evidence is circumstantial evidence that
creates belief by showing surrounding circumstances which logically
lead to a conclusion of fact. At trial, many forms of evidence are
submitted including circumstantial evidence. All forms of evidence that
are admitted in court are reviewed and considered before a decision is
made. While presumptive evidence may meet the sufficiency requirement
for admission in court, this does not mean that it is looked at alone
without review of the other admitted evidence. Presumptive evidence
does not trump other forms of evidence. It is just a type of evidence
that is reviewed in reaching a court decision. Like presumptive
evidence, presumptive limits are one line of analysis for reaching a
decision. Like presumptive evidence in the court room, presumptive
limits are not the only limit that is looked at when performing the
five factor BART analysis. Presumptive limits do not preempt states
from conducting the BART analysis nor do they preclude the evaluation
of other emission limits to help the state reach its BART
determination.
Comment: The EPA should approve the Arkansas RH SIP in its entirety
and specifically with regards to Arkansas adoption of presumptive
limits in its BART determinations. Modeling conducted by Arkansas and
CENRAP demonstrates that Arkansas's adoption of the presumptive limits
is satisfactory to make reasonable progress toward the national goal by
2018 and ultimately to achieve the national goal prior to 2064.
Response: Presumptive emission limits apply to power plants with a
total generating capacity of 750 MW or greater insofar as these sources
are required to adopt emission limits at least as stringent as the
presumptive limits, unless after considering the five statutory
factors, the State determines that the presumptive emission limits are
not appropriate. The RHR and the BART Guidelines make clear that the
presumptive limits will not necessarily be the appropriate level of
control for all EGUs. Therefore, EPA is not required to approve a
state's submitted presumptive emission limits in every instance for
every EGU as BART. For the reasons presented in our proposed
rulemaking, and as further explained in our response to comments, EPA
stands by its partial approval and partial disapproval of the BART
determinations in the Arkansas RH SIP.
States are required to satisfy all BART requirements in this first
implementation period regardless of whether modeling demonstrates that
the state will make reasonable progress by 2018 and meet the national
goal by 2064. As described in our proposed rulemaking on the Arkansas
RH SIP, we find that in adopting the SO2 and NOX
presumptive limits for the AEP Flint Creek Boiler No. 1 and Entergy
White Bluff Units 1 and 2 without conducting a proper evaluation of the
five statutory factors, as required by 40 CFR 51.308(e)(1)(ii)(A) and
section 169A(g) of the CAA, Arkansas did not satisfy all the BART
requirements for these subject to BART sources. Furthermore, EPA notes
that the CENRAP modeled the projected visibility conditions anticipated
at each Class I area in 2018. The CENRAP modeling is based on emissions
reductions expected to result from Federal, state, and local control
programs that are either currently in effect or with mandated future-
year emission reduction schedules that predate 2018. The CENRAP
modeling itself did not show that already mandated controls are
expected to attain natural visibility conditions by 2064. Rather, the
rate of visibility improvement anticipated by the CENRAP modeling in
2018, if sustained, will result in a return to natural visibility prior
to 2064. The comment that Arkansas is expected to ultimately achieve
the national goal prior to 2064 assumes that the same level of
reductions of visibility-impairing pollutants that is expected to occur
during the first implementation period ending in 2018 will increasingly
occur during each implementation period until the final implementation
period ending in 2064. However, there is no guarantee that this will
occur. The Arkansas RH SIP addresses implementation of the RHR only up
to the end of the first implementation
[[Page 14615]]
period ending in 2018. Therefore, EPA disagrees that we should approve
Arkansas's adoption of the presumptive limits on the basis that
modeling demonstrates that the State's adoption of the presumptive
limits is satisfactory to make reasonable progress toward the national
goal by 2018 and ultimately to achieve the national goal prior to 2064.
Comment: Under the BART Guidelines, presumptive limits were
established as a default requirement where the presumption would apply
unless the state has persuasive evidence that an alternative
determination is justified. According to EPA, the presumptive limits
reflect highly cost-effective controls that are extremely likely to be
appropriate for all power plants subject to BART but may be deviated
from if a state determines that a different emission limit is
appropriate based upon its analysis of the five factors. 76 FR 39131-
32.
Response: As reflected in our previous responses to similar
comments, the proper interpretation of the BART Rule and BART
Guidelines is that presumptive limits are the ``rebuttable'' starting
point rather than the ``default requirement'' in making BART
determinations. Referring to the NOX presumptive emission
limits, the BART Rule states that the presumptive emission limits may
not be appropriate for all sources, as they are ``presumptions only.''
\41\ EPA notes that presumptive emission limits apply to power plants
with a total generating capacity of 750 MW or greater insofar as these
sources are required to adopt emission limits at least as stringent as
the presumptive limits, unless after considering the five statutory
factors, the State determines that the presumptive emission limits are
not appropriate for BART.
---------------------------------------------------------------------------
\41\ 70 FR 39134.
---------------------------------------------------------------------------
EPA agrees that the BART Rule and the BART Guidelines provide that
presumptive limits reflect controls that the Agency considered to be
generally cost-effective across all affected units. Because EPA's
extensive analysis found that these controls are generally cost-
effective across all affected units and were anticipated to result in a
substantial degree of visibility improvement, they may likely be
appropriate for all Arkansas power plants subject to BART, but Arkansas
must establish different BART emission limits if an evaluation of the
five statutory factors reveals that such emission limit is appropriate.
However, as discussed in our proposed rulemaking, Arkansas did not
conduct a proper evaluation of the five statutory factors for its
sources. Therefore, it is not possible to know whether the presumptive
emission limits or an alternative emission limit is BART for the
affected sources.
Comment: The approach in EPA's proposed rule to presumptive limits
as a starting point is inconsistent with the BART Guidelines. The
Guidelines do not state that presumptive limits are a starting point
for a BART determination, but instead establish a presumption in favor
of the presumptive limits. Presumptive limits serve no purpose if their
adoption does not presume compliance with the applicable regulations.
The EPA's inconsistent application of its own guidelines fosters
regulatory uncertainty among the EGU industry.
Response: The EPA disagrees that our approach to presumptive limits
as a starting point in EPA's proposed rule is inconsistent with the
BART Guidelines and that the presumptive limits serve no purpose if
their adoption does not presume compliance with the regulations. As
stated in our proposed rulemaking on the Arkansas RH SIP, the purpose
of the presumptive limits in the BART Guidelines was to identify
controls that the Agency considered to be generally cost-effective
across all affected units. Because EPA's extensive analysis found that
these controls are generally cost-effective across all affected units
and were anticipated to result in a substantial degree of visibility
improvement, EPA concluded that such units should at least meet the
presumptive limits. EPA's intent was for these generally cost-effective
controls to be used in the State's BART analysis considering the five
factors specified in CAA section 169A(g)(2), and considering the level
of control that is currently achievable at the time that the BART
analysis is being conducted. The BART Rule makes clear that the
presumptive emission limits in the BART Guidelines are rebuttable.\42\
Referring to the NOX presumptive emission limits, the BART
Rule states that the presumptive emission limits may not be appropriate
for all sources, as they are ``presumptions only.'' \43\ Further, in
response to comments on the proposed BART Guidelines that the
presumptive SO2 EGU limits should be more stringent, EPA
explained in the preamble to the final BART Rule that ``[i]f, upon
examination of an individual EGU, a State determines that a different
emission limit is appropriate based upon its analysis of the five
factors, then the State may apply a more or less stringent limit.''
\44\ Similar statements are made elsewhere in the BART Rule. It is
important that, in analyzing the technology, states take into account
the most stringent emission control level that the technology is
capable of achieving. States should be sure to consider the level of
control that is currently achievable at the time that the BART analysis
is being conducted. Thus, the BART Guidelines require that potential
emission limits that are more stringent than the presumptive limits
must be examined as part of the BART determination.
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\42\ 71 FR 60619.
\43\ 70 FR 39134.
\44\ 70 FR 39132.
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Comment: The EPA's proposed disapproval of Arkansas's adoption of
presumptive limits for some of its BART determinations is inconsistent
with EPA's acceptance of presumptive limits in other states' BART
determinations such as Kansas, North Dakota, and Oklahoma. The EPA has
not identified a rationale or reason for this inconsistency. The lack
of consistency in its analyses for states' RH SIPs is a cause of
concern. Applying different standards and/or rendering different
decisions on similar SIPs when there is no basis for differentiation is
by definition arbitrary and capricious, and therefore invalid. Instead
of arbitrarily applying different standards, EPA should use its own
guidelines to implement the RH program on a consistent, cost-effective
basis. For Kansas, the EPA approved the Kansas RH SIP including the
adoption of SO2 and NOX presumptive limits for
non-oil or gas-fired units similar in design and capacity to Arkansas's
units. The Kansas RH SIP also included language, which EPA approved,
that presumptive limits are cost effective in most cases, and if a
facility proposed controls at or beyond the presumptive limits, it need
not take into account the remaining statutory factors as BART will be
met. In addition, the SIP also stated that allowing facilities to use
presumptive limits to meet BART is within its authority under the RH
program. This contradicts the EPA's proposed disapproval of the
Arkansas RH SIP where EPA states that presumptive limits are the
starting point in a BART determination for these units. For North
Dakota, EPA proposed to approve the BART determinations that
SO2 and NOX presumptive limits is BART for
facilities that are similar in use of fuel and capacity to Arkansas's
units. For Oklahoma, the EPA has proposed to approve those portions of
Oklahoma's SIP which adopt the presumptive emissions limits for
NOX set forth in the Guidelines as BART for the subject
[[Page 14616]]
units. This contradicts EPA's approach for this proposed rule since EPA
is proposing to disapprove the NOX BART presumptive limit
for Arkansas's units even though the units are similar in design and
capacity to the subject units in Oklahoma and Arkansas considered the
same BART factors as Oklahoma. EPA's simultaneous proposed approval of
other states' SIPs which use presumptive limits in a manner similar to
Arkansas and proposed disapproval of those portions of Arkansas's SIP
demonstrates that EPA is acting inconsistently and has exceeded its
limited authority in implementation of the visibility protection
program.
Response: The EPA disagrees that there is an inconsistency between
our approach to presumptive limits in our proposed rulemaking on the
Arkansas RH SIP and that in our proposed rulemaking on the North Dakota
RH SIP and final rulemakings on the Kansas and Oklahoma RH SIPs. Our
action on the Arkansas RH SIP is not arbitrary and capricious.
In the Arkansas RH SIP, the State adopted the NOX and
SO2 presumptive emission limits for BART without conducting
any form of BART analysis for AEP Flint Creek Boiler No. 1. For Entergy
White Bluff Units 1 and 2, the State conducted a five factor BART
analysis for SO2 and NOX, which we find does not
appropriately consider all five statutory factors at 40 CFR
51.308(e)(1)(ii)(B); as such, EPA proposed to disapprove the State's
determination that the presumptive SO2 and NOX
emission limits are BART for these two units.\45\ As explained in more
detail in our proposed rulemaking, the factors that EPA is finding were
not appropriately considered in the NOX and SO2
BART analyses for White Bluff Units 1 and 2 are the available control
technology and the cost and visibility impact of controls beyond the
presumptive limits. For NOX BART, Arkansas evaluated only
combustion controls to achieve the NOX presumptive emission
limit. For SO2 BART, Arkansas evaluated both combustion and
post-combustion controls, but evaluated the cost and visibility impact
of operating post-combustion controls (i.e. wet and dry scrubbers) to
achieve theSO2 presumptive emission limit only. As explained
in our proposed rulemaking, Arkansas did not evaluate NOX
and SO2 controls to achieve emission limits beyond the
presumptive limits, and we believe it is very likely that a proper five
factor analysis would demonstrate that controls that achieve
NOX and SO2 emission limits more stringent than
presumptive limits are cost-effective for White Bluff Units 1 and 2.
Therefore, we are disapproving the SO2 and NOX
presumptive emission limits for Flint Creek Boiler No. 1 and White
Bluff Units 1 and 2 not because the State adopted the presumptive
emission limits, but rather because the State did not conduct a proper
evaluation of the five statutory factors when making these BART
determinations.
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\45\ 76 FR 64206.
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In contrast, in our evaluation of the Oklahoma RH SIP, EPA found
that Oklahoma conducted proper BART analyses before determining that
NOX presumptive limits are BART for some sources. In our
final rulemaking action on the Oklahoma RH SIP, EPA approved the
State's NOX BART determinations for Units 1 and 2 at OG&E
Sooner; Units 4 and 5 at OG&E Muskogee; and Units 3 and 4 at AEP/PSO
Northeastern. For each of these sources, the State made its
NOX BART determination based on an evaluation of a number of
controls, including post-combustion controls operated to achieve an
emission limit beyond the NOX presumptive limit. Based on an
evaluation of the five statutory factors, Oklahoma determined that the
NOX presumptive limit is BART for these sources. In our
action on the Oklahoma RH SIP, we approved the NOX
presumptive limits as BART for these sources because Oklahoma's
NOX BART analyses were appropriate and met the requirements
of the RHR and CAA.
In our proposed approval of the Kansas RH SIP, we noted that each
of Kansas's subject to BART sources are EGUs greater than 200 MW in
capacity and located at power plants with a total capacity greater than
750 MW, which are units for which EPA established presumptive BART
emission limits.\46\ Consistent with our proposed rulemaking on the
Arkansas RH SIP, in our proposed rulemaking for Kansas, we stated that
such units must as a general matter at least meet the presumptive
emission limits as described in the BART Guidelines, unless an
evaluation of the five statutory factors demonstrated that an
alternative level of control was appropriate.\47\ The State of Kansas
performed an evaluation of the five statutory factors for each source
subject to BART, evaluating the costs and visibility impact of both
combustion and post-combustion controls.\48\ In fact, the Kansas BART
evaluation for some units resulted in the adoption of BART emission
limits more stringent than the NOX and SO2
presumptive limits.\49\ Based on an evaluation of the five factors, the
State of Kansas determined, and EPA proposed to approve the
NOX and SO2 presumptive limits for some units.
During the public comment period for our proposed approval of the
Kansas RH SIP, we received comments stating that the Kansas RH SIP was
incomplete and insufficient because the State did not evaluate the cost
and visibility improvement resulting from the most stringent emission
limit capable of being achieved by the various SO2 and
NOX controls considered for these units. Subsequently, the
State provided EPA information on the cost and visibility impact of
operating the various NOX and SO2 control
technologies considered by the State at an emission rate more stringent
than the presumptive limits. The information provided by the State
demonstrated that operation of these controls to achieve an emission
limit more stringent than the presumptive limit would result in high
costs and very low visibility improvement, and thereby not be cost-
effective. Based upon its evaluation of the State's five factor
supplemented analysis, EPA agreed with Kansas that it is reasonable to
determine that the cost of further control beyond presumptive limits is
not warranted and finalized its proposed approval of the Kansas RH SIP
without changes.\50\ In particular, for the Westar Jeffrey Units 1 and
2, EPA agreed with the State of Kansas that given the very low
visibility improvement modeled for the additional SO2
control (i.e. operating a scrubber at a control efficiency that would
achieve an emission rate of 0.05 lb/MMBtu instead of the presumptive
emission rate of 0.15 lb/MMBtu), it is not reasonable to establish an
SO2 emission limit more stringent than the presumptive
limit. Arkansas has not provided EPA with information demonstrating
that operation of SO2 and NOX controls to achieve
an emission limit more stringent than the presumptive limits is not
cost-effective for Flint Creek Boiler No. 1 and White Bluff Units 1 and
2. Since controls capable of achieving a more stringent emission limit
than the NOX and SO2 presumptive limits have been
found to be technically feasible and cost-effective at similar sources,
the State must evaluate these controls in its BART analysis. Therefore,
EPA's final approval of the NOX and SO2
presumptive limits for some EGUs in Kansas is not inconsistent with our
proposed disapproval of the NOX and
[[Page 14617]]
SO2 presumptive limits for White Bluff Units 1 and 2 and
Flint Creek Boiler No. 1. With regard to the comment that the Kansas RH
SIP included language that that if a subject facility proposes controls
at or beyond the presumptive limits then BART will be met and that
allowing facilities to use presumptive limits to meet BART is within
the State's authority under the RH program, EPA notes that although the
Kansas RH SIP did include such language, EPA did not approve or propose
to approve the BART determinations by Kansas based on such reasoning.
EPA notes that Kansas supplemented its BART evaluation by providing
additional information on the costs and visibility impacts associated
with various NOX and SO2 control technologies.
This additional information constituted an important part of the basis
for EPA's approval of the Kansas RH SIP. As a general matter, in
evaluating a SIP submittal, EPA considers the state's rationale for its
determinations but reaches a decision as to whether a SIP meets the
relevant statutory and regulatory requirements based on consideration
of other factors as well. EPA's approval of a SIP does not mean that
EPA has determined that every statement or analysis provided by the
state was appropriate or reasonable or that EPA agrees with the state's
interpretation of the relevant legal requirements. Furthermore, the
preamble to our proposed rulemaking on the Kansas RH SIP states that as
presumptive units, each of Kansas' five subject to BART units ``must as
a general matter at least meet the presumptive emission limits as
described in the BART Guidelines.'' \51\ This is consistent with
statements made in the preamble to our proposed rulemaking on the
Arkansas RH SIP. EPA believes that our approach to presumptive limits
in our final action on the Kansas RH SIP is consistent with that in our
action on the Arkansas RH SIP.
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\46\ 76 FR 52616.
\47\ 76 FR 52616.
\48\ 76 FR 52617.
\49\ 76 FR 80754.
\50\ 76 FR 80754.
\51\ 76 FR 52604, at 52616.
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While the SO2 controls evaluated by North Dakota for the
Great River Energy Coal Creek Station Units 1 and 2 are not expected to
achieve an emission limit more stringent than the SO2
presumptive emission limit, EPA disagrees that our approach to
presumptive limits in our proposed action on North Dakota's BART
determinations for the Coal Creek Station Units 1 and 2 is inconsistent
with that in our proposed action on Arkansas's BART determinations for
Flint Creek Boiler 1 and White Bluff Units 1 and 2. First of all, the
SO2 presumptive limits do not apply to North Dakota's Coal
Creek Station Units 1 and 2, as the presumptive limits do not apply to
coal-fired units with existing SO2 post-combustion
controls.\52\ The Coal Creek Station Units 1 and 2 have existing wet
scrubbers, and as such, the cost effectiveness (on a dollar/tons
reduced basis) of additional controls and/or upgrades to the existing
scrubbers may not be as cost-effective as the installation and
operation of a new scrubber would be at a unit with no existing post-
combustion controls (as is the case with Arkansas's Flint Creek Boiler
No. 1 and White Bluff Units 1 and 2). In addition, we note that the
Coal Creek Station Units 1 and 2 burn pulverized lignite coal, while
Flint Creek Boiler No. 1 burns low sulfur western coal (i.e. sub-
bituminous coal) and White Bluff Units 1 and 2 burn sub-bituminous and
bituminous coal. Lignite coal generally has higher sulfur content than
sub-bituminous and bituminous coal, and therefore, its combustion
produces a greater amount of SO2 emissions. As such, the
operation of a given control technology, in this case a wet scrubber,
at a lignite firing unit (such as North Dakota's Coal Creek Station
Units 1 and 2) may not necessarily achieve an emission limit as
stringent as that capable of being achieved at a unit burning sub-
bituminous and/or bituminous coal (such as Arkansas's Flint Creek
Boiler No. 1 and White Bluff Units 1 and 2). In light of the above, we
believe that our approach to presumptive limits in our proposed action
on the North Dakota RH SIP is not inconsistent with that in our
proposed action on the Arkansas RH SIP.
---------------------------------------------------------------------------
\52\ The BART Guidelines provide that States must require 750 MW
power plants to meet specific control levels for SO2 of
either 95% control or 0.15 lb/MMBtu, for each EGU greater than 200
MW that is currently uncontrolled unless you determine that an
alternative control level is justified based on a careful
consideration of the statutory factors (Appendix Y to Part 51,
section IV.E.4.).
---------------------------------------------------------------------------
As articulated in our proposed rulemaking on the North Dakota RH
SIP, the Great River Energy Stanton Unit 1 is located at a 188 MW power
plant. Therefore, presumptive NOX and SO2
emission limits do not apply to Stanton Unit 1. As shown in Tables 7
and 8 of our proposed rulemaking on the North Dakota RH SIP, in its
five factor analyses for SO2 for this unit (for both the
lignite and the Powder River Basin coal firing scenarios), North Dakota
considered a number of post-combustion control options, several of
which were expected to achieve an emission limit more stringent than
the SO2 presumptive limit, including one of which would
achieve 95% control efficiency.\53\ Based on its consideration of the
five statutory factors, North Dakota determined that an SO2
emission limit of 0.24 lb/MMBtu for lignite burning and an emission
limit of 0.16 lb/MMBtu for Powder River Basin coal burning is BART for
SO2. For NOX for Stanton Unit 1, North Dakota
evaluated both combustion and post-combustion controls for both the
lignite and Powder River Basin Coal burning scenarios. In its
evaluation of controls, North Dakota considered the operation of
selective non-catalytic reduction (SNCR) to achieve a control
efficiency of 90% for lignite burning and 88% for Powder River Basin
coal burning, which corresponds to an emission limit beyond the
NOX presumptive limit. Based on its consideration of the
five statutory factors, North Dakota determined that a NOX
emission limit of 0.29 lb/MMBtu for lignite burning and 0.23 lb/MMBtu
for Powder River Basin coal burning is BART for NOX. In our
proposal, we did not identify any flaws with North Dakota's BART
analyses for NOX and SO2 for this unit, and
proposed to approve North Dakota's BART determinations. EPA's approach
to presumptive limits in our proposed action on North Dakota's BART
determinations for the Great River Energy Stanton Unit 1is not
inconsistent with that in our proposed action on the Arkansas BART
determinations for White Bluff Unit 1 and 2 and Flint Creek Boiler No.
1 because North Dakota considered controls beyond the NOX
and SO2 presumptive emission limits. This was not done by
Arkansas in the NOX and SO2 BART analyses for
White Bluff Units 1 and 2 and Flint Creek Boiler No. 1. Furthermore,
presumptive NOX and SO2 emission limits do not
apply to Stanton Unit 1.
---------------------------------------------------------------------------
\53\ 76 FR 58570, at 58586 and 58587.
---------------------------------------------------------------------------
North Dakota's Minnkota Power Cooperative Milton R. Young Station
Unit 1 has no existing SO2 post-combustion controls, while
Unit 2 has an existing wet scrubber for control of SO2. As
such, the SO2 presumptive limits don't apply to Unit 2. As
shown in Table 12 of our proposed rulemaking on the North Dakota RH
SIP, for Milton R. Young Station Unit 1, North Dakota considered post
combustion controls that were expected to achieve 95% control
efficiency, which corresponds to an emission limit more stringent than
the SO2 presumptive limit.\54\ As shown in Table 13 of our
proposed rulemaking on the North Dakota RH SIP, for Milton R. Young
Station Unit 2 North Dakota considered upgrades to the existing wet
scrubber that were expected to achieve
[[Page 14618]]
95% control efficiency, which corresponds to an emission limit beyond
the SO2 presumptive limit.\55\ In our proposed rulemaking on
the North Dakota RH SIP, we did not identify any flaws with North
Dakota's SO2 BART analysis for these units. In light of the
fact that SO2 presumptive limits don't apply to Milton R.
Young Station Unit 2 and that North Dakota evaluated controls to
achieve 95% control efficiency for both Units 1 and 2, which
corresponds to an emission limit more stringent than the SO2
presumptive limit, we believe that EPA's approach to presumptive limits
in our proposed action on North Dakota's BART determinations for
Minnkota Power Cooperative Milton R. Young Station Unit 1 and 2 is not
in conflict with that in our proposed action on Arkansas's BART
determinations for White Bluff Units 1 and 2 and Flint Creek Boiler No.
1.
---------------------------------------------------------------------------
\54\ 76 FR 58570, at 58589.
\55\ 76 FR 58570, at 58590.
---------------------------------------------------------------------------
While the SO2 controls evaluated by North Dakota for the
Basin Electric Power Cooperative Leland Olds Station Units 1 and 2,
which are located at a 656 MW coal fired power plant, are not expected
to achieve an emission limit more stringent than the SO2
presumptive emission limit, EPA disagrees that our approach to
presumptive limits in our proposed action on North Dakota's BART
determinations for the Leland Olds Station Unit 1 and 2 is inconsistent
with that in our proposed action on Arkansas's BART determinations for
Flint Creek Boiler No. 1 and White Bluff Units 1 and 2. As with the
Great River Energy Stanton Unit 1, the SO2 and
NOX presumptive limits do not apply to North Dakota's Leland
Olds Station Units 1 and 2, as the presumptive limits do not apply to
coal fired power plants with a total generating capacity less than 750
MW.\56\ As shown in Table 17 of our proposed rulemaking on the North
Dakota RH SIP, for Leland Olds Station Unit 1 North Dakota considered
both NOX combustion and post-combustion controls capable of
achieving 80% control efficiency, which corresponds to an emission
limit much more stringent than the NOX presumptive
limit.\57\ In our proposed rulemaking on the North Dakota RH SIP, we
did not identify any flaws with North Dakota's BART analysis for
NOX for Unit 1 and proposed to approve North Dakota's
determination that BART for NOX is 0.19 lb/MMBtu for Leland
Olds Station Unit 1. EPA's approach to presumptive limits in our
proposed action on North Dakota's BART determination for NOX
for the Leland Olds Station Unit 1 is not inconsistent with that in our
proposed action on Arkansas's BART determinations for Flint Creek
Boiler No. 1 and White Bluff Units 1 and 2 because in its evaluation of
controls for NOX for Unit 1 (for which we did not propose to
find any flaws), North Dakota considered controls beyond the
NOX presumptive emission limits. This was not done by
Arkansas in the NOX and SO2 BART analyses for
White Bluff Units 1 and 2 and Flint Creek Boiler No. 1. Furthermore,
the NOX and SO2 presumptive limits do not apply
at the Leland Olds Station Units 1 and 2.
---------------------------------------------------------------------------
\56\ The BART Guidelines provide that States must require 750 MW
power plants to meet specific control levels for SO2 of
either 95% control or 0.15 lb/MMBtu, for each EGU greater than 200
MW that is currently uncontrolled unless you determine that an
alternative control level is justified based on a careful
consideration of the statutory factors (Appendix Y to Part 51,
section IV.E.4.).
\57\ 76 FR 58570, at 58593.
---------------------------------------------------------------------------
In summary, EPA disagrees that there is an inconsistency between
our approach to presumptive limits in our proposed rulemaking on the
Arkansas RH SIP and that in our proposed rulemaking on the North Dakota
RH SIP and final rulemakings on the Kansas and Oklahoma RH SIPs.
Comment: The process used by the State of Arkansas in adopting the
presumptive emission limits set forth in EPA's BART Guidelines as BART
for Entergy White Bluff was improper. The record reflects that neither
ADEQ nor the APCEC conducted its analysis of the statutory factors
required to establish BART, but merely adopted EPA's presumptive limits
as proposed by the owners and operators of the Entergy White Bluff
Units 1 and 2. The record does not reflect that any analysis was done
by ADEQ to determine if the estimated operating cost and the projected
cost per deciview (dv) improvement for wet scrubbing control technology
for the White Bluff plant were realistic, whether those costs were
consistent with the cost assumptions underlying EPA's development of
presumptive limits in the BART Guidelines, or whether other options
were available to address RH concerns or whether existing control
technology at White Bluff was sufficient. Moreover, after Arkansas's RH
SIP was adopted by the APCEC, Entergy submitted a revised 2008 BART
analysis to ADEQ that reflected a more than 300% increase in the costs
of compliance for the White Bluff facility. After this, Entergy filed
with the Arkansas Public Service Commission a claim that the RHR
compliance costs for White Bluff would exceed $1 billion. Nothing in
the record indicates that Arkansas considered these increased costs in
establishing BART emission limits for Entergy White Bluff in the
Arkansas RH SIP. In addition, EPA was not aware or did not consider
Entergy's 2008 revised BART analysis for White Bluff.
Response: The EPA agrees that the Arkansas BART determination for
Entergy White Bluff Units 1 and 2 was flawed. As described in our
proposed rulemaking, the State failed to adequately consider controls
and BART emission limits beyond the presumptive limits and the State
did not determine that the general assumptions underlying the EPA's
analysis of presumptive limits in its 2005 BART Rule were not
applicable to White Bluff. As to the revised 2008 BART analysis for
White Bluff, which the source submitted to ADEQ, EPA notes that the
Arkansas RH SIP submittal that EPA received from the State on September
23, 2008, contains a BART analysis for White Bluff dated December
2006.\58\ The Arkansas RH SIP submittal does not contain the revised
2008 BART analysis for White Bluff, nor was the revised 2008 BART
analysis for White Bluff ever submitted to EPA by the State as an
official RH SIP revision. Given this, EPA has not taken the revised
analysis into account in evaluating the Arkansas RH SIP.
---------------------------------------------------------------------------
\58\ See ``BART Analysis for the White Bluff Steam Electric
Station,'' dated December 2006 and prepared by Robert Paine, found
in Appendix 9.3A of the Arkansas RH SIP.
---------------------------------------------------------------------------
Comment: The process used by the State of Arkansas in adopting the
presumptive emission limits set forth in EPA's Guidelines as BART for
Flint Creek Boiler No. 1 was improper. For the Flint Creek facility,
there is no BART analysis or other information that indicates the
actual costs of various control technologies or other options for
addressing RH concerns, and there is nothing in the record that
reflects that ADEQ considered the actual costs of controls at the Flint
Creek plant in its determination of BART for this facility. This is due
to Arkansas's improper adoption and reliance on EPA's presumptive
limits.
Response: The EPA agrees that the process used by Arkansas in
adopting the NOX and SO2 presumptive emission
limits set forth in EPA's Guidelines for BART for Flint Creek Boiler
No. 1 was improper. The State did not consider the costs of controls or
any of the other statutory factors, as required under the RHR and the
Act, when making its BART determinations for this source. For this
reason we are finalizing our proposed disapproval of the States'
NOX
[[Page 14619]]
and SO2 BART determinations for Flint Creek Boiler No. 1.
Comment: The EPA approval of the PM BART determination for Flint
Creek Boiler No. 1 in which BART analysis was not conducted because
visibility impacts are minimal contradicts EPA's later rejection of
presumptive limits for failure to conduct a full BART analysis for
NOX and SO2 at the same facility.
Response: Our proposed approval of the PM BART determination for
the AEP Flint Creek Boiler No. 1 does not contradict our proposed
disapproval of the NOX and SO2 presumptive limits
for the same source. In our review of the Arkansas RH SIP, we evaluated
the determination by ADEQ that no additional PM controls are required
at the Flint Creek Boiler No. 1. ADEQ's determination was based on the
pre-control modeling performed by ADEQ and a review of AEP SWEPCO's
statement that the PM visibility modeling did not ``trip the BART
impact threshold.'' We reviewed the pre-control modeling preformed by
ADEQ using the 24-hr actual maximum emissions from the baseline period.
The modeling results in Appendix 9.2B of the Arkansas RH SIP and
presented in Table 7-6 of Appendix A of the Technical Support Document
(TSD),\59\ indicate that PM contributes less than 0.5% of the total
visibility impacts from Flint Creek Boiler No. 1 at all nearby Class I
areas with the exception of Upper Buffalo. PM contributions to
visibility impacts at Upper Buffalo from Flint Creek are less than 2%
of the total visibility impairment at this Class I area. On the most
impacted day at Upper Buffalo, modeling the 24-hr actual maximum
emissions demonstrates that PM contributes only 0.07 dv of the total
3.781 dv modeled visibility impact from the source. As stated in the
proposal, we found that the visibility impact from PM emissions alone
is so minimal such that the installation of any additional PM controls
on the unit (including any upgrades to the existing controls) could
only have minimal visibility benefit and therefore would not be
justified. This is in keeping with the BART Rule, which states the
following:
---------------------------------------------------------------------------
\59\ These documents can be found in the docket for our
rulemaking.
``Consistent with the CAA and the implementing regulations,
States can adopt a more streamlined approach to making BART
determinations where appropriate. Although BART determinations are
based on the totality of circumstances in a given situation, such as
the distance of the source from a Class I area, the type and amount
of pollutant at issue, and the availability and cost of controls, it
is clear that in some situations, one or more factors will clearly
suggest an outcome. Thus, for example, a State need not undertake an
exhaustive analysis of a source's impact on visibility resulting
from relatively minor emissions of a pollutant where it is clear
that controls would be costly and any improvements in visibility
resulting from reductions in emissions of that pollutant would be
negligible. In a scenario, for example, where a source emits
thousands of tons of SO2 but less than one hundred tons
of NOX, the State could easily conclude that requiring
expensive controls to reduce NOX would not be
appropriate. In another situation, however, inexpensive
NOX controls might be available and a State might
reasonably conclude that NOX controls were justified as a
means to improve visibility despite the fact that the source emits
less than one hundred tons of the pollutant.'' \60\
---------------------------------------------------------------------------
\60\ 70 FR 39116.
Clearly, the most effective controls to address visibility
impairment from the source are those that would reduce emissions of
visibility impairing pollutants other than direct emissions of PM.
Therefore, we are finalizing our proposed disapproval of the
NOX and SO2 BART determinations for Flint Creek
Boiler No. 1, as ADEQ did not properly identify and evaluate
NOX and SO2 controls to address visibility
impairment from the source. As explained elsewhere in our response to
comments, this is consistent with the BART Guidelines and with our
action on other state's RH SIPs.
Comment: The EPA's 2004 proposed RHR provided extensive technical
justification to establish that the presumptive limits represent cost
effective technologies equivalent to BART. In addition, the 2004
proposed RHR provides that the adoption of the presumptive limits by
the state is acceptable unless the states choose to conduct a BART
analysis to support different limits. Arkansas relied on the 2004
proposed RHR to adopt presumptive limits, along with consultation with
BART-eligible sources to determine whether any site-specific factors
vary significantly from those examined by EPA. Since no factors have
been identified by the affected sources, Arkansas adopted EPA's
presumptive limit without any further analysis. That is all that is
required under the RHR.
Response: The EPA agrees that we went through extensive analysis to
provide presumptive BART emission limits. As stated in our proposed
rulemaking on the Arkansas RH SIP, the purpose of the presumptive
limits in the BART Guidelines was to identify controls that the Agency
considered to be generally cost-effective across all affected units.
Because EPA's extensive analysis found that these controls are
generally cost-effective across all affected units and were anticipated
to result in a substantial degree of visibility improvement, EPA
concluded that such units should at least meet the presumptive limits.
However, the RHR and the BART Guidelines make clear that the
presumptive limits are rebuttable.\61\ As discussed elsewhere in our
response to comments, the RHR and the BART Guidelines make clear that
the presumptive limits will not necessarily be the appropriate level of
control for all EGUs. Therefore, EPA cannot approve any BART
determination that relies upon the presumptive emission limit unless
the five factor BART analysis shows the presumptive emission limit
meets BART. EPA disagrees that the 2004 proposed RHR provides that the
adoption of the presumptive limits by the state is acceptable unless
the state chooses to conduct a BART analysis to support different
limits. The RHR (in some instances referred to in the comment as the
BART Rule) and the BART Guidelines do not provide that a state may
choose to conduct a BART analysis to support different limits. The RHR
states the following concerning presumptive limits:
---------------------------------------------------------------------------
\61\ 71 FR 60619.
---------------------------------------------------------------------------
``If, upon examination of an individual EGU, a State determines
that a different emission limit is appropriate based upon its analysis
of the five factors, then the State may apply a more or less stringent
limit.'' \62\
---------------------------------------------------------------------------
\62\ 70 FR 39132.
---------------------------------------------------------------------------
There is similar language elsewhere in the RHR and the BART
Guidelines. The RHR and the BART Guidelines do not contain language
giving the State discretion to determine whether or not to conduct a
five factor BART analysis when the presumptive emission limits have
been adopted.
The EPA disagrees that reliance on the 2004 proposed RHR to adopt
presumptive limits along with consultation with subject to BART sources
to determine whether any site-specific factors vary significantly from
those examined by EPA is all Arkansas is required to do to satisfy the
BART requirements under the RHR. The RHR states that for each source
subject to BART, states are required to identify BART after considering
the five statutory factors in CAA section 169A(g), as follows:
``States must identify the best system of continuous emission
control technology for each source subject to BART taking into
account the technology available, the costs of compliance, the
energy and non-air quality environmental impacts of compliance, any
pollution control equipment in use at the
[[Page 14620]]
source, the remaining useful life of the source, and the degree of
visibility improvement that may be expected from available control
technology.'' \63\
---------------------------------------------------------------------------
\63\ 70 FR 39158.
Therefore, adoption of the NOX and SO2
presumptive limits alone does not satisfy the requirements of the RHR
and the CAA.
Comment: The EPA's 2004 proposed RHR supports the position that the
presumptive limits identified in the RHR are adequate to meet the
visibility requirements for the first implementation period of the RHR.
Thus, Arkansas's use of presumptive limits should be approved because,
like the RHR confirms, use of presumptive limits by Arkansas ensures
that there is sufficient visibility improvement to satisfy the URP
goals. The EPA's suggestion that a more detailed or extensive
investigation is required is not supported by the RHR or guidance. It
is the state's prerogative to make this determination and to choose
what sources of information and degree of investigation is adequate.
Having confirmed EPA's expectations, the state's submission should be
approved.
Response: Neither the 2004 proposed nor the final RHR provide that
adoption of the presumptive emission limits identified in the RHR are
all that is necessary to meet the visibility requirements for the first
implementation period of the RHR. The EPA disagrees that the RHR
confirms that use of presumptive limits by states ensures that there is
sufficient visibility improvement to satisfy the URP goals. It appears
that the comment may have been referring to the ``national visibility
goal,'' or ``reasonable progress goals,'' (which are interim visibility
goals towards meeting the national visibility goal), instead of the
``URP goals.'' The RHR states the following regarding the
SO2 and NOX presumptive limits:
``Based on our analysis of emissions from power plants, we believe
that applying these highly cost-effective controls at the large power
plants covered by the guidelines would result in significant
improvements in visibility and help to ensure reasonable progress
toward the national visibility goal.'' \64\
---------------------------------------------------------------------------
\64\ 70 FR 39131.
---------------------------------------------------------------------------
A full reading of the RHR and the BART Rule, demonstrates that the
proper interpretation of this statement is that because EPA found these
controls to be generally highly cost-effective and would result in
significant visibility improvement, EPA concluded that requiring
affected sources to achieve at least this level of control would help
ensure reasonable progress toward the national visibility goal. The RHR
did not confirm that by adopting the presumptive emission limits states
would ensure sufficient visibility improvement to satisfy their
reasonable progress goals, since for the first implementation period
this can only be confirmed by EPA's full approval of the state's RH
SIP. Furthermore, for a state to achieve reasonable progress during the
first implementation period, it must look at sources beyond those that
are subject to BART as well as at non-point sources and determine,
based on consideration of the four statutory factors at 40 CFR
51.308(d)(1)(i), whether it is reasonable to require these sources to
install additional pollution controls. Therefore, even if states
satisfy the BART requirements, satisfaction of the reasonable progress
requirements can't be met by complying with BART requirements alone.
With regard to the comment that the RHR and BART Guidelines do not
support EPA's position that a more detailed or extensive investigation
is required, EPA notes that in response to comments on the proposed
BART Guidelines that the presumptive SO2 EGU limits should
be more stringent, EPA justified its decision not to establish more
stringent presumptive emission limits in the preamble to the final BART
Rule by explaining that ``[i]f, upon examination of an individual EGU,
a State determines that a different emission limit is appropriate based
upon its analysis of the five factors, then the State may apply a more
or less stringent limit.'' \65\ Similar statements are made elsewhere
in the BART Rule. Clearly, the RHR and the BART Rule do not suggest the
presumptive limits should be viewed as establishing a safe harbor from
more stringent regulation under the BART provisions. While states do
have discretion in how to go about making BART determinations, states
have a duty to evaluate the five statutory factors,\66\ and should
consider the level of control that is currently achievable at the time
the BART analysis is conducted.\67\
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\65\ 70 FR 39132.
\66\ See 40 CFR 51.308(e)(1)(ii)(A) and 42 U.S.C. 7491(g)(2).
\67\ 70 FR 39171.
---------------------------------------------------------------------------
Comment: The EPA was incorrect in disapproving ADEQ's
SO2 and NOX BART determinations that adopted the
presumptive limit for subject to BART power plants greater than 750 MW.
ADEQ used the presumptive limits provided by EPA in the BART Rule and
worked with the affected facilities to make BART determinations.
Response: The EPA disagrees. States have a duty to evaluate the
five statutory factors,\68\ and should consider the level of control
that is currently achievable at the time the BART analysis is
conducted.\69\ As already explained in our response to similar comments
in this final rulemaking, adoption of the presumptive emission limits
for subject to BART EGUs greater than 750 MW, without a proper
evaluation of the five statutory factors, is not sufficient to meet the
BART requirements in the RHR and the BART Rule.
---------------------------------------------------------------------------
\68\ See 40 CFR 51.308(e)(1)(ii)(A) and 42 U.S.C. 7491(g)(2).
\69\ 70 FR 39171.
---------------------------------------------------------------------------
Comment: The EPA incorrectly states that such BART-eligible sources
should at least meet the presumptive limits. BART-eligible sources are
just that--eligible. As such, these sources are not required to meet
any limit until modeling indicates that the unit either causes or
contributes to visibility impairment. The use of the phrase ``BART-
eligible'' in this context appears to be a mistaken reference to
``subject-to-BART'' sources.
Response: The EPA agrees that we meant to say that ``subject to
BART sources'' rather than ``BART eligible sources'' should at least
meet the presumptive limits. This misstatement is minor and did not
affect our evaluation of Arkansas's RH SIP.
B. Comments on Reasonable Progress Goals and Long Term Strategy
Comment: The EPA's proposed rule would disapprove Arkansas's RPGs
because in EPA's view the State did not provide an analysis that
considered the four statutory factors under 40 CFR 51.308(d)(1)(i)(A)
to evaluate the potential of controlling certain sources or source
categories for addressing visibility impacts from man-made sources.
Whether or not this is true, it does not appear that the state has
fallen short of its obligations under the RHR and applicable EPA
guidance. States generally must consider the reasonable progress
factors and the URP in establishing RPGs. Arkansas clearly considered
the URP and has demonstrated that the measures included in the SIP
exceed those necessary to meet the URP for both of its Class I areas.
As for the reasonable progress factors, the BART Guidelines note their
substantial similarity to the BART factors (70 FR 39143), and EPA
guidance makes clear that states need not reassess the reasonable
progress factors for sources subject to BART for which the state has
already completed a BART analysis. As such, EPA has not
[[Page 14621]]
identified a flaw in the state's reasonable progress analysis
warranting disapproval of Arkansas's selected RPGs. EPA must respect
the states' considerable discretion in determining RPGs and cannot
substitute its judgment for that of the state simply because EPA would
have performed a different type of assessment if it had the authority
to establish RPGs. The EPA does not have the authority to require the
adoption of RPGs other than those found by the states to be reasonable
and must defer to the state's reasonable progress determinations.
Response: The EPA disagrees that the Arkansas RH SIP has not fallen
short of its obligations under the RHR and applicable EPA guidance.
With respect to the RPG requirements, the State has fallen short of its
obligations precisely because it did not provide an analysis that
considered the four statutory factors, as required under 40 CFR
51.308(d)(1)(i)(A). The RHR states the following with regard to RPG
requirements:
``Today's final rule requires the States to determine the rate
of progress for remedying existing impairment that is reasonable,
taking into consideration the statutory factors, and informed by
input from all stakeholders.'' \70\
---------------------------------------------------------------------------
\70\ 64 FR 35731.
The EPA's 2007 guidance for setting RPGs (referred to hereafter as
EPA's RPG Guidance) states the following with regard to the statutory
---------------------------------------------------------------------------
factors under 40 CFR 51.308(d)(1)(i)(A):
``The regional haze rule requires you to clearly support your
RPG determination in your SIP submission based on the statutory
factors.'' \71\
---------------------------------------------------------------------------
\71\ See EPA's Guidance for Setting Reasonable Progress Goals
Under the Regional Haze Program (June 1, 2007), Section 2.4.
Therefore, it is clear that the Arkansas RH SIP has fallen short of
its obligations with regard to RPG requirements under the RHR and
applicable EPA guidance.
The EPA agrees that states generally must consider the reasonable
progress factors (i.e. the four statutory factors) under 40 CFR
51.308(d)(1)(i)(A) and the URP in establishing RPGs. The EPA also
agrees that EPA guidance states that it is not necessary for states to
reassess the reasonable progress factors for sources subject to BART
for which the state has already completed a full five factor BART
analysis.\72\ However, the requirement in the RHR and EPA's RPG
guidance for states to consider the four statutory factors applies to
all point sources (and non-point sources if appropriate), and as such,
is not limited only to sources that are subject to BART. In
establishing RPGs, states must still consider the four statutory
factors for sources that are not subject to BART. EPA's guidance for
establishing RPGs states the following:
---------------------------------------------------------------------------
\72\ See EPA's Guidance for Setting Reasonable Progress Goals
Under the Regional Haze Program (June 1, 2007), Section 5.0.
``The discussion of the statutory factors in this guidance is
largely aimed at helping States apply these factors in considering
measures for point sources. States may find that the factors can be
applied to sources other than point sources; the meaning of the
factors, however, should not be unduly strained in order to fit non-
point sources.'' \73\
---------------------------------------------------------------------------
\73\ See EPA's Guidance for Setting Reasonable Progress Goals
Under the Regional Haze Program (June 1, 2007), Section 1.2.
As such, what warrants EPA's disapproval of Arkansas's RPGs is that
in establishing its RPGs, the State did not evaluate the four statutory
factors for sources that are not subject to BART, as required under 40
CFR 51.308(d)(1)(i)(A). Arkansas's lack of RPG analysis is especially
troublesome in light of several sources not subject to BART which
contribute to the impairment of visibility above 0.5 dv, as explained
in more detail in our proposed rulemaking. To satisfy the RHR
requirements, the State must do more than just consider the URP in
establishing RPGs. As explained in our proposed rulemaking on the
Arkansas RH SIP, the RHR provides that EPA will consider both the
State's consideration of the four factors in 40 CFR 51.308(d)(1)(i)(A)
and its analysis of the URP in determining whether the State's goal for
visibility improvement provides for reasonable progress.\74\ Therefore,
the State must still consider the four statutory factors under 40 CFR
51.308(d)(1)(i)(A), even if the CENRAP's modeling demonstrated that the
measures included in the SIP exceed those necessary to meet the URP for
the first implementation period for both of Arkansas's Class I areas.
The RHR and EPA's guidance for establishing RPGs do not provide that a
State may forego an analysis of the four statutory factors if modeling
demonstrates that it is expected to meet the URP in 2018 for both of
its Class I areas. EPA agrees with the commenter that states have
considerable discretion in determining RPGs. Nevertheless, there are
several requirements that states must meet in establishing their RPGs,
and where EPA determines that these requirements have not been
satisfied, EPA has the authority to disapprove the State's RPGs and
indeed must disapprove it as not meeting the Federal requirements.
---------------------------------------------------------------------------
\74\ 64 FR 35766.
---------------------------------------------------------------------------
In our disapproval of the State's RPGs, EPA is not substituting its
judgment for that of the State. Our disapproval is not based on a
disagreement with the State with regard to the value of the State's
RPGs, rather our disapproval is based on the fact that the State did
not evaluate the four statutory factors in establishing its RPGs,
especially given that known sources of visibility impairment were not
analyzed. We note that, at this point, it is not possible to know
whether different RPGs are appropriate for Arkansas's Class I areas.
Until the State conducts a proper evaluation of the four statutory
factors, in accordance with the CAA Sec. 169A(g)(1), 40 CFR
51.308(d)(1)(i)(A), and EPA's RPG Guidance, or EPA conducts such
evaluation in the context of a FIP, we will not know whether different
RPGs are appropriate for Arkansas's Class I areas.
Comment: The EPA properly approved Arkansas's URP, but improperly
applied the URP when analyzing Arkansas's BART determinations and RPGs.
EPA acknowledges that the measures Arkansas adopted in the RH SIP would
meet the URP, but EPA still partially disapproved the Arkansas RH SIP
in part because ADEQ did not undertake any ``further analysis'' after
determining its RPGs would meet or exceed the URP. EPA's claim that
Arkansas is required to undertake any further analysis lacks a legal
basis, as states are not required to go beyond the URP analysis in
establishing RPGs. Neither the CAA nor the RHR allow for the ``further
analysis'' EPA is requiring of Arkansas regarding its RPGs and the URP.
Courts have held that when an agency relies on factors which Congress
has not intended it to consider, then such action is arbitrary and
capricious (Arizona Public Service Company v. US EPA, 562 F.3d 1116,
1123 (10th Cir. 2009)). The RHR explains that states must consider the
uniform rate of improvement in visibility and the emissions reductions
needed to achieve it when formulating RPGs, and since Arkansas has
exceeded the URP when formulating its RPGs, Arkansas has met the legal
requirements of the RHR. EPA should not have disapproved Arkansas's
RPGs since they are consistent with the CAA and the visibility
impairment regulations. The EPA's disapproval of Arkansas's RPGs
elevates form over substance, and fails to recognize the purpose of
RPGs in improving visibility impairment. The RHR only requires
additional analysis when a state establishes RPGs that provide for a
slower rate of improvement than the URP (40 CFR 51.308(d)(1)(ii).
Response: The EPA disagrees that we improperly applied the URP when
[[Page 14622]]
analyzing Arkansas's BART determinations and RPGs. In fact, EPA did not
consider the State's URP in evaluating the State's BART determinations
because EPA does not have authority under the RHR to do so. With regard
to the RPGs, EPA upholds its proposed disapproval of the State's RPGs
because the State did not undertake an analysis of the four statutory
factors, as required under 40 CFR 51.308(d)(1)(i)(A). While EPA agrees
that the RHR requires states to consider the uniform rate of
improvement in visibility when formulating RPGs, we disagree that a
state's consideration of the URP and establishment of RPGs that provide
for a slightly greater rate of improvement in visibility than would be
needed to attain the URP is all that is needed to satisfy the RPG
requirements in the RHR. EPA also disagrees that the RHR only requires
additional analysis when a state establishes RPGs that provide for a
slower rate of improvement than the URP. As explained in our proposed
rulemaking on the Arkansas RH SIP, in establishing its RPGs, the State
is required by CAA Sec. 169A(g)(1) and 40 CFR 51.308(d)(1)(i)(A) to
``[c]onsider the costs of compliance, the time necessary for
compliance, the energy and non-air quality environmental impacts of
compliance, and the remaining useful life of any potentially affected
sources, and include a demonstration showing how these factors were
taken into consideration in selecting the goal.''
The RHR states the following with regard to RPG requirements:
``Today's final rule requires the States to determine the rate
of progress for remedying existing impairment that is reasonable,
taking into consideration the statutory factors, and informed by
input from all stakeholders.'' \75\
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\75\ 64 FR 35731.
An analysis of the four statutory factors is precisely the
``further analysis'' EPA refers to in its proposed rulemaking on the
Arkansas RH SIP.\76\ As explained above, both the RHR and the CAA
require states to undertake this analysis in establishing its RPGs.
Therefore, EPA disagrees that our proposed rulemaking on the Arkansas
RH SIP is arbitrary and capricious because it relies on factors which
Congress has not intended it to consider. CAA section 169A(g)(1)
clearly requires states to consider these four factors in establishing
their RPGs. Accordingly, EPA's proposed disapproval of Arkansas's RPGs
is consistent with the RH regulations and the Act. Because the CAA
section 169A(g)(1) and 40 CFR 51.308(d)(1)(i)(A) require that states
consider the four statutory factors in establishing their RPGs, a
requirement which Arkansas has not satisfied, our proposed disapproval
of Arkansas's RPGs recognizes the purpose of the RPGs in improving
visibility impairment and is in keeping with the statutory
requirements.
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\76\ 76 FR 64195.
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Comment: We agree with EPA's proposed disapproval of Arkansas's
RPGs because no proper four-factor analysis was done in setting those
goals. In setting its RPGs, the state is required to consider the four
statutory factors and include a demonstration showing how these factors
were taken into consideration in selecting the goal (40 CFR
51.308(d)(1)(i)(A) and 42 U.S.C. 7491(g)(1)). As EPA stated in its
proposed rulemaking, the RHR makes clear that just meeting the URP does
not exempt a state from a proper four-factor evaluation of RPGs for the
state's Class I areas (see 76 FR 64195 and 64 FR 35732). Being on the
``glide path'' to achieve the URP does not by itself ensure that a
Class I area will make reasonable progress to reach natural background
visibility conditions by 2064 because the ``glide path'' assumes that
increasing levels of reductions of visibility-impairing pollutants will
consistently occur over the next 53 years until 2064. There is no
guarantee that this will happen, and ADEQ has not indicated what
controls will be required in the next 53 years to ensure they stay on
the glide path. EPA ensures that all reasonable measures that can be
implemented during the first planning period are implemented by
requiring states to evaluate whether additional progress beyond the URP
is reasonable in this first RH planning period. Considering that the
modeling on which future predictions of visibility impairment levels
are based has uncertainties both in the modeling itself and in the
projections of emissions for various source categories, it is necessary
that states be required to conduct a four-factor analysis to evaluate
all the controls that could reasonably be implemented to make progress
toward the national visibility goal.
Response: The EPA agrees that Arkansas did not do a proper four-
factor analysis nor did it include a demonstration showing how these
factors were taken into consideration in selecting the goal in
accordance with the CAA and the RHR. Please see elsewhere in our
response to other comments for an explanation of the requirements for
establishing RPGs.
Comment: The EPA has proposed to partially disapprove Arkansas's
LTS for failure to include adequate emissions limitations as required
under 40 CFR 51.308(d)(3)(v)(C) due to the fact that the State relied
on its BART emission limits to satisfy this LTS requirement and EPA is
proposing to disapprove the majority of those BART emission limits (76
FR 64218). The EPA has proposed to approve the remaining elements of
the Arkansas LTS. EPA should not partially approve any part of
Arkansas's LTS when EPA has proposed to disapprove Arkansas's RPGs. A
State's LTS is the State's plan to ensure that reasonable progress
towards achieving natural background conditions is achieved both at the
State's Class I areas and at out-of-state Class I areas impacted by
sources within the State (40 CFR 51.308(d)(3). If the State's RPGs are
not approvable, then no part of the State's LTS should be approved
because the purpose of the LTS is to reflect the State's plan for
assuring reasonable progress, which is in turn based on the State's
RPGs. The Arkansas LTS should be disapproved in its entirety.
Response: While EPA agrees that a state's LTS is its plan to ensure
that reasonable progress towards achieving natural background
conditions is achieved both at the state's Class I areas and at out-of-
state Class I areas impacted by sources within the state,\77\ EPA
disagrees that no part of a state's LTS should be approved even if the
state's RPGs are not approvable. As explained in our proposed
rulemaking on the Arkansas RH SIP, the LTS is a compilation of state-
specific control measures relied on by the states for achieving their
RPGs.\78\ Regardless of what RPGs a state establishes (and whether or
not EPA approves these RPGs), state-specific control measures will help
the state make progress towards improving visibility. Even though these
control measures may not ensure that a state's RPGs will be met,
especially in cases such as this where EPA is disapproving the State's
RPGs, the control measures that the State has relied on in the LTS for
achieving its RPGs (with the exception of the BART determinations we
are disapproving) will aid the State in achieving reasonable progress.
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\77\ 40 CFR 51.308(d)(3).
\78\ 76 FR 64212.
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Furthermore, 40 CFR 51.308(d)(3)(v) requires that states consider
certain factors in developing their LTS. These LTS factors are: (A)
Emission reductions due to ongoing air pollution control programs,
including measures to address RAVI; (B) measures to mitigate the
impacts of construction activities; (C) emissions limitations and
schedules for compliance to achieve the
[[Page 14623]]
reasonable progress goal; (D) source retirement and replacement
schedules; (E) smoke management techniques for agricultural and
forestry management purposes including plans as currently exist within
the state for these purposes; (F) enforceability of emissions
limitations and control measures; and (G) the anticipated net effect on
visibility due to projected changes in point, area, and mobile source
emissions over the period addressed by the LTS. As explained in our
proposed action on the Arkansas RH SIP, we are finding that Arkansas
had appropriately considered these factors, with the exception of the
factor under 40 CFR 51.308(d)(3)(v)(C), which requires the State to
consider emission limitations and schedules for compliance to achieve
the RPGs. Therefore, with the exception of this element, we are finding
that the LTS satisfies the requirements of 40 CFR 51.308(d)(3).
Furthermore, we point out that satisfaction of some of the requirements
under 40 CFR 51.308(d)(3) is not intrinsically tied to or conditioned
upon a specific dv value for the RPG. Therefore, disapproval of the
RPGs does not mean automatic disapproval of all elements of the LTS. We
are finalizing our proposed partial approval and partial disapproval of
Arkansas's LTS.
Comment: According to EPA's TSD for the Arkansas RH SIP, Arkansas
Class I areas are impacted by sources from outside the State as well as
by sources within the State. In 2018, Arkansas sources are projected to
be the top contributor to visibility impairment at Caney Creek and
Upper Buffalo. The contribution from Arkansas's sources at the Class I
areas in Arkansas, Missouri, Oklahoma, and other states is projected to
increase in 2018 from 2002 levels. It appears that the projected
improvement in visibility in 2018 for Caney Creek and Upper Buffalo is
mainly due to significant projected emission reductions from sources in
Texas. Even if other states are requiring emission reductions at the
sources that cause and contribute to visibility impairment in
Arkansas's Class I areas, Arkansas still has an obligation under its
LTS to adopt control measures adequate to address its contribution to
visibility impairment in the State's Class I areas. The Federal RH
regulations require that ``where other States cause or contribute to
impairment in a mandatory Class I Federal area, the State must
demonstrate that it has included in its implementation plan all
measures necessary to obtain its share of the emissions reductions
needed to meet the progress goal for the area'' (see 40 CFR
51.308(d)(3)(ii)). Therefore, as part of the LTS, Arkansas is required
to identify all sources of visibility impairment in the State and
should have considered the adoption of emission limitations and
compliance schedules for those sources to achieve natural background
visibility conditions at Arkansas's Class I areas. Arkansas failed to
properly evaluate these emission limitations and compliance schedules.
Response: The EPA agrees that Arkansas Class I areas are impacted
by sources from outside the State as well as by sources within the
State, and that modeling demonstrates that Arkansas sources are
projected to be the top contributor to visibility impairment at Caney
Creek and Upper Buffalo in 2018. EPA also agrees that the contribution
of Arkansas sources to visibility impairment at Class I areas in
Arkansas, Missouri, Oklahoma, and other states is projected to increase
in 2018 from baseline levels.
Under 40 CFR 51.308(d)(3), states must submit a LTS that addresses
visibility impairment for each Class I area within the State and for
each Class I area located outside the State which may be affected by
emissions from the State. Arkansas has done this, and we are partially
approving and partially disapproving that LTS, as explained in more
detail in our proposed rulemaking and discussed elsewhere in our
response to other comments. Under 40 CFR 51.308(d)(3)(i), states that
are reasonably anticipated to contribute to visibility impairment in
any Class I area located in another state are required to consult with
the other state to develop coordinated emission management strategies.
States are also required to consult with any other states that are
reasonably anticipated to contribute to visibility impairment in any
Class I area within the state. As explained in our proposed rulemaking,
Arkansas satisfied this requirement through its consultation with
affected states. Under 40 CFR 51.308(d)(3)(ii), where other states
cause or contribute to impairment in a Class I area, the State must
demonstrate that it has included in its implementation plan all
measures necessary to obtain its share of the emissions reductions
needed to meet the progress goals for the area. States can meet this
requirement through participation in a regional planning process where
all potentially affected states are consulted, and by ensuring that
they have included all measures needed to achieve their apportionment
of emission reduction obligations agreed upon through that process. As
explained in our proposed rulemaking on the Arkansas RH SIP, we are
finding that Arkansas satisfied its consultation requirements when
establishing its LTS.\79\ Therefore, EPA is finding that the Arkansas
RH SIP satisfies the requirements under 40 CFR 51.308(d)(3)(i) and
(ii).
---------------------------------------------------------------------------
\79\ 76 FR 64216.
---------------------------------------------------------------------------
The EPA agrees that as part of setting RPGs and developing a LTS,
Arkansas is required to identify sources of visibility impairment in
the State and to establish ``emission limitations, schedules of
compliance and other measures as may be necessary to make reasonable
progress toward the national goal.'' In developing a RH SIP, the state
accordingly must consider whether there are reasonable measures that
should be adopted. A state is also required to consider the adoption of
emission reduction measures needed to achieve the URP. The RHR does not
require a state to consider what measures would be necessary to achieve
natural background visibility conditions at Arkansas's Class I areas.
EPA does, however, agree that Arkansas failed to properly evaluate
whether there were any reasonable measures beyond BART that could have
been adopted to improve visibility.
Comment: The fact that emissions of SO2, NOX,
and other visibility impairing pollutants are projected to increase in
2018 compared to 2002 levels, indicates that Arkansas is not doing all
it can to address the sources of visibility-impairment that exist in
the State of Arkansas. There are additional control measures Arkansas
should have considered for adoption as part of its LTS. For example,
ADEQ's BART emission limits for White Bluff Units 1 and 2 and Flint
Creek do not reflect the top levels of emissions control achievable at
Arkansas's subject to BART sources, nor do the emission limits reflect
the capabilities of the control equipment that has been proposed to be
installed. If not required to meet lower SO2 limits as BART,
ADEQ should evaluate lower SO2 limits to ensure reasonable
progress toward achieving natural background visibility conditions.
Also, ADEQ did not evaluate installation of post-combustion controls
such as SCR to meet the NOX BART requirements for White
Bluff Units 1 and 2 or Flint Creek Boiler No. 1. The data on the worst
20% days for Caney Creek shows that nitrates are often the major
component of visibility impairment during the winter months and the
data on the best 20% days for Caney Creek shows that nitrates are more
often the major component of visibility impairment. At Upper Buffalo,
nitrates are the major component of
[[Page 14624]]
visibility impairment in the winter months as well, and nitrates are
also a major component of visibility impairment in the spring and fall
months. The Missouri Class I areas show similar patterns. The 2018
modeling projections show that nitrates continue to be a major
component of visibility impairment during the winter months on the 20%
worst days at Caney Creek. Therefore, if post-combustion controls are
not required as BART for White Bluff Units 1 and 2 and Flint Creek
Boiler No. 1, then the State should be required to evaluate
installation of post-combustion controls at these sources to meet
reasonable progress requirements. If not ultimately required to meet
lower SO2 limits or the installation of SCR as BART, the
State should evaluate lower limits and additional controls on
SO2 and NOX to ensure reasonable progress is made
toward natural background visibility conditions.
Response: The EPA agrees that emissions of visibility impairing
pollutants in Arkansas are projected to increase in 2018 from baseline
levels, and that in establishing its RPGs and LTS, the State has not
appropriately considered whether there are additional measures that
would be reasonable for addressing visibility impairment. That
emissions of SO2, NOX, and other visibility
impairing pollutants in Arkansas are projected to increase suggests
that the state should carefully consider what measures can be adopted
to ensure that the state contributes to improving visibility in the
region. EPA also agrees that Arkansas's NOX and
SO2 BART emission limits for White Bluff Units 1 and 2 and
Flint Creek Boiler No. 1 do not reflect the most stringent level of
emissions control achievable at Arkansas's subject to BART sources. As
explained in our proposed rulemaking on the Arkansas RH SIP, we are
disapproving the State's SO2 and NOX BART
determinations for White Bluff Units 1 and 2 and Flint Creek Boiler No.
1 because Arkansas limited its BART determinations to considering the
measures necessary for achieving the presumptive limits and did not
appropriately consider whether more stringent controls or emission
limits were appropriate based on a consideration of the five statutory
factors, as required by 40 CFR 51.308(e)(1)(ii)(A) and section
169A(g)(2) of the CAA. However, EPA disagrees that if we ultimately
approve BART determinations that do not require White Bluff Units 1 and
2 and Flint Creek Boiler No. 1 to install post-combustion controls and/
or do not require these sources to establish SO2 and
NOX BART emission limits more stringent than those currently
adopted by the State, Arkansas is required to evaluate post-combustion
controls and more stringent SO2 and NOX limits
for its subject to BART sources to satisfy the reasonable progress
requirements at 40 CFR 51.308(d)(1). Because the BART analysis that is
required for subject to BART sources is based, in part, on an
assessment of many of the same factors that must be addressed in
establishing a state's RPGs, EPA's guidance for establishing RPGs
provided that it is reasonable for a State to conclude that any control
requirements imposed in the BART determination also satisfy the RPG-
related requirements for source review in the first RPG planning
period.\80\ EPA's guidance states the following:
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\80\ See EPA's Guidance for Setting Reasonable Progress Goals
Under the Regional Haze Program (June 1, 2007), Section 4.2.
``Also, as noted in section 4.2, it is not necessary for you to
reassess the reasonable progress factors for sources subject to BART
for which you have already completed a BART analysis.'' \81\
---------------------------------------------------------------------------
\81\ See EPA's Guidance for Setting Reasonable Progress Goals
Under the Regional Haze Program (June 1, 2007), Section 5.0.
Therefore, we note that once EPA has approved the BART
determination for a particular pollutant for a given subject to BART
source, the State is not required to evaluate the reasonable progress
factors for that particular pollutant for the given source in order to
satisfy the reasonable progress requirements.
Comment: There are additional control measures Arkansas should have
considered for adoption as part of its LTS. Arkansas must consider
controls for other point sources in the State that are not subject to
BART but that could be required to reduce emission to help Arkansas and
other affected states assure reasonable progress towards achieving
background visibility conditions. For example, Arkansas should evaluate
controls for Entergy's Independence Power Plant, which is located
approximately 140 km from Upper Buffalo, and is the second largest
source of SO2 and NOX emissions in Arkansas
(Entergy White Bluff is the first). Once the White Bluff power plant
installs controls to meet BART for SO2 and NOX,
the Independence plant will be the largest source of SO2 and
NOX in the State. The Independence plant was not identified
by ADEQ as BART-eligible. It consists of two coal-fired units that have
no SO2 control technology installed with a generating
capacity of 1700 MW (see Exhibit 23). PM emissions are controlled with
electrostatic precipitators (ESPs) and NOX emissions are
controlled only with overfire air. Despite its size and location, the
Arkansas RH SIP did not identify the Independence plant as a possible
source of visibility impairment. Upgraded combustion controls and/or
installation of SCR should be evaluated for control of NOX
emissions, and the installation of a scrubber should be evaluated for
control of SO2 emissions. Arkansas should be required to
evaluate these as well as additional control measures to ensure it is
doing all it can to provide for reasonable progress toward meeting
natural visibility conditions at the State's Class I areas and at the
Class I areas impacted by Arkansas sources.
Response: EPA agrees that Arkansas must consider controls for point
sources in the State that are not subject to BART but that could be
required to reduce emissions to help Arkansas and other affected states
assure reasonable progress towards achieving background visibility
conditions. We do note that the RHR and EPA's guidance for establishing
RPGs give states flexibility in determining which particular sources to
evaluate and how to take into consideration the four statutory factors.
EPA's guidance for establishing RPGs provide the following:
``In determining reasonable progress, CAA Sec. 169A(g)(1) requires
States to take into consideration a number of factors. However, you
have flexibility in how to take into consideration these statutory
factors and any other factors that you have determined to be
relevant. For example, the factors could be used to select which
sources or activities should or should not be regulated, or they
could be used to determine the level or stringency of control, if
any, for selected sources or activities, or some combination of
both.'' \82\
---------------------------------------------------------------------------
\82\ See EPA's Guidance for Setting Reasonable Progress Goals
Under the Regional Haze Program (June 1, 2007), Section 5.0.
As the Entergy Independence Power Plant has significant emissions
and emissions reductions from the source would likely help Arkansas and
other affected states assure reasonable progress, EPA agrees that the
Entergy Independence Power Plant is a good candidate for further
consideration by Arkansas. As we are disapproving Arkansas's RPGs, the
State will need to consider whether controls at this facility and any
other facilities would be reasonable for purposes of addressing
visibility impairment.
Comment: In addition to Caney Creek and Upper Buffalo, sources in
Arkansas also contribute to visibility impairment
[[Page 14625]]
in Missouri's two Class I areas (Mingo and Hercules Glades) and
Oklahoma's Class I area (Wichita Mountains). Even though Arkansas
claims it does not need to adopt any additional measures in its LTS
because the CENRAP 2018 modeling showed that the emissions reductions
planned in CENRAP states were sufficient for Missouri's Class I areas
to meet their RPGs, EPA has not proposed action on the Missouri RH SIP,
and it is not clear if EPA will be approving Missouri's RPGs. Also, the
CENRAP 2018 modeling Missouri relied on may be underestimating impacts
due to sulfates, as indicated by EPA in Appendix A to the TSD for the
Arkansas RH SIP. For the Mingo Class I area in Missouri, since there
was not sufficient capture of valid IMPROVE data to determine baseline
conditions in accordance with EPA guidance, it is not clear whether the
CENRAP modeling shows that the projected visibility improvements at
Mingo will meet or exceed the URP toward attaining background
visibility conditions. Therefore, Arkansas cannot rely on Missouri's
claims that it is meeting its RPGs to justify avoiding the evaluation
of additional control measures for sources of visibility-impairing
pollutants in Arkansas. In addition, Arkansas sources contributed 2.0%
to visibility impairment at Wichita Mountains during the baseline
period and are projected to contribute 2.3% in 2018. This may appear to
be a small contribution, but it is a contribution nonetheless. Oklahoma
apparently does not agree with ADEQ that Arkansas's source
contributions are insignificant. Since the Wichita Mountains is not
expected to achieve the necessary improvements in visibility in 2018 to
meet or exceed the URP, Arkansas should be required to evaluate
emission controls that could be required at Arkansas sources that
impact visibility at the Wichita Mountains. Arkansas has an obligation
as part of its LTS to evaluate and adopt those control measures
necessary to address Arkansas's share of visibility impairment in Class
I areas in Missouri and Oklahoma (40 CFR 51.308(d)(3)(ii)).
Response: We disagree that because EPA has not proposed action on
the Missouri RH SIP, we cannot find that Arkansas does not need to
adopt any additional measures in its LTS. We find that we have the
authority to act on Arkansas's LTS now.
In the context of acting on the LTS and Arkansas's RH SIP, the
comment raises a concern with missing data at the Mingo Wilderness
Area's IMPROVE monitor, and refers to a statement in the CENRAP TSD
that because of a lack of data it did not meet EPA's data acceptance
criteria. The Mingo monitor had a wasp type nest inside the collection
apparatus for the Organic Carbon sampling stream that may have impacted
the air flow and sampling for these specific pollutants, but not the
other sampling streams. The other pollutants, including nitrates and
sulfates (NOX and SO2 products) were collected
for the entire baseline time period without the need for data
substitution. The IMPROVE group did evaluate two different approaches
to backfill the missing data for the organics and Elemental Carbon that
resulted in nearly identical results. They then selected the method
that they thought was most appropriate in backfilling the data based on
other monitoring data collected. This backfill data was then used with
the rest of the monitored data for the baseline for the Mingo monitor.
The IMPROVE group is made up of a number of experts in these specific
issues and we concur that the approach is acceptable for use in
establishing the baseline. It is very important to note that the
Organic Carbon is a significantly smaller component of the visibility
impairment than the amount of impairment from ammonium nitrate and
ammonium sulfate at Mingo. We do not believe any inaccuracies in the
backfill information for organic carbon would significantly impact the
baseline at Mingo.\83\
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\83\ Chuck McDate and Warren White UC Davis, Power Point from
Inter-RPO Data Analysis/Monitoring Workgroup 9/28/05 ``Approach for
Substituting Mingo IMPROVE Carbon Data'', RPO Call 092805 Mingo.ppt;
Archuleta, et al. Extended Abstract 58 ``IMPROVE Data
Substitution Methods for Regional Haze'', 58-Archuleta.pdf; Graphic
of comparison of two technique results, Out.pdf; Communications
record between Scott Copeland CIRA--Cooperative Institute for
Research in the Atmosphere with Erik Snyder, EPA Region 6, February
10, 2012.
---------------------------------------------------------------------------
With regard to the establishment of a state's LTS, 40 CFR
51.308(d)(3)(i) states the following:
``Where the State has emissions that are reasonably anticipated
to contribute to visibility impairment in any mandatory Class I area
located in another State or States, the State must consult with the
other State(s) in order to develop coordinated emission management
strategies.''
As explained in our proposed rulemaking on the Arkansas RH SIP,
CENRAP's photochemical modeling demonstrated that besides Arkansas's
own Class I areas, the only Class I areas where Arkansas sources can be
said to be contributing to visibility impairment are the Mingo
Wilderness Area and the Hercules Glades Wilderness Area in Missouri and
not Wichita Mountains in Oklahoma. Arkansas considered modeling that
was performed by the CENRAP and consulted with Missouri, Oklahoma, and
other potentially affected states. In its consultation with Missouri,
both Arkansas and Missouri determined that it was not necessary for
Arkansas to commit to additional emission reductions since the CENRAP
modeling showed that emission reductions already planned by the CENRAP
and other states would be sufficient for Missouri's Class I areas to
meet their RPGs (notwithstanding the uncertainties that may have been
involved in the modeling). We note that Arkansas will be considering
whether additional emission reduction measures are reasonable for
improving visibility at the Class I areas within Arkansas and
revisiting several of its BART determinations. Any more stringent
measures adopted by Arkansas to address the deficiencies we have
identified in its RH SIP have the potential to also benefit visibility
at Mingo and Hercules Glades. When we take action on the Missouri RH
SIP, we will consider whether Missouri's RPGs are appropriate.
With regard to the comment that Arkansas sources contributed 2.0%
to visibility impairment at Wichita Mountains during the baseline
period and are projected to contribute 2.3% in 2018, EPA notes that
removal of this 2.3% contribution to the total extinction results in a
visibility improvement of only 0.2 dv from the 2018 projected
visibility conditions. Although the Oklahoma Department of
Environmental Quality (ODEQ) initially believed that emissions from
Arkansas sources are impacting visibility at Wichita Mountains and that
it might be necessary for Arkansas to commit to additional emissions
reductions, Arkansas responded to ODEQ's concerns with a letter dated
August 17, 2007, explaining that based on photochemical modeling, ADEQ
had calculated that the total visibility impact from all sources in
Arkansas at Wichita Mountains is 0.2dv.\84\ Furthermore, in section
X.A. of the Oklahoma RH SIP submitted to EPA, ODEQ references the
August 17, 2007 letter sent by ADEQ and states that it is in agreement
with the projected emissions reductions from Arkansas and all other
states with which it consulted with regard to visibility impairment at
Wichita Mountains.
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\84\ See letter from Mike Bates, Air Division Director, Arkansas
Department of Environmental Quality, to Eddie Terrill, Air Division
Director, Oklahoma Department of Environmental Quality, dated August
17, 2007. This letter is found in Appendix 10.3 of the Arkansas RH
SIP.
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[[Page 14626]]
Consequently, while we are concerned that the RPG at Wichita
Mountains is not on the glide path, we believe the technical assessment
that Arkansas sources do not have a significant impact at Wichita
Mountains is accurate and ADEQ and ODEQ followed consultation
procedures. We therefore disagree that Arkansas must adopt additional
control measures to address its visibility impact at other states'
Class I areas. Considering the modeling results and since both states
agreed to this on the results of the consultations, we find that
Arkansas has satisfied its obligations under 40 CFR 51.308(d)(3)(i) and
(ii).
Comment: The EPA criticizes Arkansas for not conducting the four
factor RPG analysis. However, EPA's guidance only requires a four
factor analysis for potentially affected sources. Because Arkansas
determined that emission reductions anticipated from implementation of
BART and other CAA programs during the initial planning period are
sufficient to satisfy the URP, it is not required to consider
additional emission reductions from other potentially affected sources
in setting its RPGs. This approach is supported by EPA's RPG Guidance,
which opines that only BART and other existing CAA programs may be all
that are necessary to achieve reasonable progress in the first planning
period for some states. The EPA is incorrect that ADEQ relied solely on
meeting the URP to reach its RPG determination. ADEQ relied on EPA
guidance indicating the application of BART alone could be considered
as constituting reasonable progress for the first planning period.
Arkansas determined its URP. Arkansas participated in CENRAP,
coordinated with Missouri Department of Natural Resources, and
consulted with other states who may contribute to RH in Arkansas Class
I areas. ADEQ also used modeling projections that show that the
combination of already mandated controls, including BART emissions
limitations, will provide for a rate of progress that improves
visibility conditions and results in the attainment of natural
visibility conditions by 2064. This modeling also demonstrated that the
RPGs for Arkansas's Class I areas are better than the URP. This is
consistent with the requirements of the CAA and EPA's regulations and
guidance. Thus, Arkansas's RPGs should be approved by EPA.
Response: With regard to the comment that EPA's guidance only
requires a four factor analysis for potentially affected sources, we
note that EPA's RPG Guidance states the following:
``In determining reasonable progress, CAA Sec. 169A(g)(1) requires
States to take into consideration a number of factors. However, you
have flexibility in how to take into consideration these statutory
factors and any other factors that you have determined to be
relevant. For example, the factors could be used to select which
sources or activities should or should not be regulated, or they
could be used to determine the level or stringency of control, if
any, for selected sources or activities, or some combination of
both.'' \85\
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\85\ See EPA's Guidance for Setting Reasonable Progress Goals
Under the Regional Haze Program (June 1, 2007), Section 5.0.
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EPA's guidance for setting RPGs also provides that:
``The RHR gives States wide latitude to determine additional
control requirements, and there are many ways to approach
identifying additional reasonable measures; however, you must at a
minimum, consider the four statutory factors. Based on the
contribution from certain source categories and the magnitude of
their emissions you may determine that little additional analysis is
required to determine further controls are not warranted for that
category.'' \86\
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\86\ See EPA's Guidance for Setting Reasonable Progress Goals
Under the Regional Haze Program (June 1, 2007), Section 4.2.
Although the State has flexibility in how to consider the four
statutory factors, it must consider these four factors in some form.
The State made no attempt to do this in the Arkansas RH SIP. Even if
emission reductions anticipated from implementation of BART and other
CAA programs during the initial planning period are expected to result
in a slightly greater rate of improvement in visibility than would be
needed to attain the URP for the first implementation period, the State
must still consider whether any additional control measures would be
reasonable, based on its consideration of the relevant factors.
Arkansas's actions are especially problematic as there are sources that
are not subject to BART but which contribute to visibility impairment
above the State's established BART threshold of 0.5 dv. While EPA
agrees that EPA's RPG Guidance states that BART and other existing CAA
programs may be all that is necessary to achieve reasonable progress in
the first planning period for some states, Arkansas's approach is not
supported by our RPG Guidance.\87\ EPA's guidance states that BART and
other existing CAA programs may be all that is necessary, not that it
is in fact all that is necessary. If the State believes that it is not
necessary to require any sources to install controls under the
reasonable progress requirements (i.e. that there are no ``potentially
affected sources''), it must demonstrate this through its consideration
of the four statutory factors.
---------------------------------------------------------------------------
\87\ See EPA's Guidance for Setting Reasonable Progress Goals
Under the Regional Haze Program (June 1, 2007), Section 4.1.
---------------------------------------------------------------------------
As discussed in our proposed rulemaking on the Arkansas RH SIP, we
agree that the State properly determined its URP, and that the State
participated in CENRAP and coordinated and consulted with other states
who may be contributing to visibility impairment in Arkansas's Class I
areas. We find that Arkansas satisfies these requirements under the
RHR. However, that is not all that a state is required to do in
establishing its RPGs. In establishing its RPGs for any Class I area, a
state must ``consider the costs of compliance, the time necessary for
compliance, the energy and non-air quality environmental impacts of
compliance, and the remaining useful life of any potentially affected
sources, and include a demonstration showing how these factors were
taken into consideration in selecting the goal.'' \88\ The Arkansas RH
SIP does not satisfy this requirement.
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\88\ 40 CFR 51.308(d)(1)(i)(A).
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With regard to the comment that modeling projections show that the
combination of already mandated controls will provide for a rate of
progress that improves visibility conditions and result in the
attainment of natural visibility conditions by 2064, EPA notes that the
CENRAP modeled the projected visibility conditions anticipated at each
Class I area in 2018. The CENRAP modeling is based on emissions
reductions expected to result from Federal, State, and local control
programs that are either currently in effect or with mandated future-
year emission reduction schedules that predate 2018. The CENRAP
modeling itself did not show that already mandated controls are
expected to attain natural visibility conditions by 2064. Rather, the
rate of visibility improvement anticipated by the CENRAP modeling in
2018, if sustained, would result in a return to natural visibility
conditions prior to 2064. Therefore the comment that Arkansas is
expected to ultimately achieve the national goal prior to 2064 assumes
that the same level of reductions of visibility-impairing pollutants
that is expected to occur during the first implementation period ending
in 2018 will increasingly occur during each implementation period until
the final implementation period ending in 2064. However, there is no
guarantee that this will occur. The Arkansas RH SIP addresses the
requirements of the RHR only for the first implementation period
[[Page 14627]]
ending in 2018. As such, EPA disagrees that we should approve
Arkansas's RPGs because modeling demonstrates that Arkansas is expected
to achieve the national goal prior to 2064.
Comment: The EPA should not have disapproved Arkansas's LTS since
it is consistent with the CAA and the visibility impairment
regulations. The EPA is proposing to disapprove Arkansas's LTS because
Arkansas relied on the emissions reductions and schedules of compliance
associated with Arkansas's BART determinations. The EPA's reliance on
its disapproval of Arkansas's BART determinations as a basis for
disapproving the LTS treads on the state's authority under the CAA. The
EPA's disapproval of Arkansas's LTS elevates form over substance,
disregards the underlying purpose of the visibility protection program,
and does not recognize the purpose of the LTS. Arkansas's LTS complies
with the CAA. The applicable regulations require each state to submit a
long-term, 10- to 15- year strategy for making reasonable progress
toward the national goal of natural visibility conditions in 2064.
Given that Arkansas's LTS includes emission limits, compliance
schedules and other measures necessary to achieve reasonable progress
toward the national visibility goal and to ultimately achieve natural
visibility prior to 2064, the EPA's proposed disapproval is baseless
and further shows that EPA is acting beyond the scope of the visibility
protection requirements of the CAA.
Response: We disagree that Arkansas's LTS fully satisfies the
requirements of the CAA and the RH regulations. With regard to the LTS,
the CAA requires that states establish:
``[A] long-term (ten to fifteen years) strategy for making
reasonable progress toward meeting the national goal specified in
subsection (a) of this section.'' \89\
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\89\ CAA section 169A(b)(2)(B).
Consistent with the requirement of the CAA, 40 CFR 51.308(d)(3)
requires that states include in their RH SIPs a LTS that includes
``enforceable emissions limitations, compliance schedules, and other
measures as necessary to achieve the reasonable progress goals'' for
all Class I areas within, or affected by emissions from, the state.\90\
At a minimum, states must describe how each of the following seven
factors listed below are taken into account in developing their LTS:
(1) Emission reductions due to ongoing air pollution control programs,
including measures to address RAVI; (2) measures to mitigate the
impacts of construction activities; (3) emissions limitations and
schedules for compliance to achieve the RPG; (4) source retirement and
replacement schedules; (5) smoke management techniques for agricultural
and forestry management purposes including plans as currently exist
within the state for these purposes; (6) enforceability of emissions
limitations and control measures; and (7) the anticipated net effect on
visibility due to projected changes in point, area, and mobile source
emissions over the period addressed by the LTS.\91\ Since 40 CFR
51.308(d)(3)(v)(C) requires that in developing its LTS, Arkansas
consider emissions limitations and schedules of compliance to achieve
the RPGs, the State included the BART emission limits it established
for its subject to BART sources as part of its LTS. As explained in our
proposed rulemaking on the Arkansas RH SIP, the BART emission limits
established by Arkansas are an element of the LTS, and because we are
disapproving a portion of Arkansas's BART determinations, it follows
that the State did not properly consider emission limitations and
schedules for compliance to include in its LTS, as required under 40
CFR 51.308(d)(3)(v)(C). Therefore, we cannot approve this element of
the LTS. Furthermore, as pointed out in one of the comments we
received, since Arkansas did not consider the four statutory factors
under 40 CFR 51.308(d)(1)(i)(A) when establishing its RPGs, it is not
possible to know at this point whether requiring additional controls
for Arkansas source categories affecting visibility constitutes
reasonable progress. Therefore, we find that Arkansas's LTS does not
include those measures necessary to achieve reasonable progress toward
the national visibility goal. This is in support of the finding that
Arkansas has not properly considered emission limitations and schedules
for compliance in establishing its LTS, as required under 40 CFR
51.308(d)(3)(v)(C).
---------------------------------------------------------------------------
\90\ 40 CFR 51.308(d)(3).
\91\ 40 CFR 51.308(d)(3)(v).
---------------------------------------------------------------------------
We acknowledge that the CENRAP modeling shows that with the
measures included in the RH SIP, Arkansas is projected to meet the URP
for the first implementation period ending in 2018 for both of its
Class I areas. However, with regard to the comment that Arkansas's LTS
includes those measures necessary to ultimately achieve natural
visibility prior to 2064, we note that the Arkansas's RH SIP (including
the LTS) addresses the RHR requirements only for the first
implementation period ending in 2018. The CENRAP modeling is based on
emissions reductions expected to result from Federal, State, and local
control programs that are either currently in effect or with mandated
future-year emission reduction schedules that predate 2018. The CENRAP
modeling itself did not show that already mandated controls are
expected to attain natural visibility conditions by 2064. Rather, the
rate of visibility improvement anticipated by the CENRAP modeling in
2018, if sustained, will result in a return to natural visibility prior
to 2064. This assumes that the same level of reductions of visibility-
impairing pollutants that is expected to occur during the first
implementation period ending in 2018 will increasingly occur during
each implementation period until the final implementation period ending
in 2064. However, there is no guarantee that this will in fact occur.
Comment: We agree with EPA's findings that ADEQ cannot rely solely
on meeting the uniform rate of progress to conclude that its goals
provide for reasonable progress. ADEQ needs to consider the four
statutory factors required under 40 CFR 51.308(d)(1)(i)(A) to evaluate
the potential controls for sources or source categories that contribute
to visibility impairment.
Response: As explained in our proposed rulemaking and elsewhere in
our response to comments, Arkansas's lack of consideration of the four
statutory factors required under the RHR is the grounds for our
disapproval of Arkansas's RPGs.
Comment: The EPA should disapprove Arkansas's LTS as well as the
reasonable progress analysis because Arkansas's point sources emissions
of SO2, the major pollutant contributing to visibility
impairment in Arkansas's Class I area, are projected to increase
instead of decreasing between 2002 and 2018. Source apportionment
modeling by the CENRAP indicates that Arkansas's contribution to
sulfate in Class I areas is projected to increase as contributions from
surrounding states are projected to decrease. This is in contradiction
to 40 CFR 51.308(d)(3)(ii) which requires that the State demonstrate
that it has included in its implementation plan all measures necessary
to obtain its share of the emissions reductions needed to meet the
progress goal for the area.
Response: We agree that Arkansas's point source SO2
emissions are projected to increase instead of decreasing between 2002
and 2018, and that the CENRAP modeling indicates that Arkansas's
contribution to sulfate in class I areas is projected to increase as
contributions from surrounding states
[[Page 14628]]
are projected to decrease. However, we disagree that this is in
contradiction with our proposed finding that the Arkansas RH SIP
satisfies the requirements of 40 CFR 51.308(d)(3)(ii). The full
reference to 40 CFR 51.308(d)(3)(ii) is the following:
``Where other States cause or contribute to impairment in a
mandatory Class I Federal area, the State must demonstrate that it
has included in its implementation plan all measures necessary to
obtain its share of the emissions reductions needed to meet the
progress goals for the area. If the State has participated in a
regional planning process, the State must ensure that it has
included all measures needed to achieve its apportionment of
emission reduction obligations agreed upon through that process.''
\92\
---------------------------------------------------------------------------
\92\ 40 CFR 51.308(d)(3)(ii).
A state can meet the requirements under 40 CFR 51.308(d)(3)(ii) if
when establishing its LTS, the state can demonstrate that it has
included in its RH SIP all measures necessary to obtain its share of
the emissions reductions needed to meet the progress goals. This means
that if a state participates in a regional planning process, the state
must ensure that the RH SIP includes all agreed upon measures needed to
achieve its apportionment of emission reduction obligations. Arkansas
met part of this requirement by participating in a regional planning
process and consulting with other states that cause or contribute to
impairment at Arkansas's Class I areas, with the participating states
arriving at a consensus with regard to each states' apportionment of
emissions reduction obligations. Arkansas's RH SIP includes the
regional planning process but those emission reductions agreed to by
all states in the consultation meetings will not be met by Arkansas
because the reductions from the BART determinations we are disapproving
will not be realized. This is consistent with 40 CFR 51.308(d)(3)(ii).
As explained in our proposed rulemaking on the Arkansas RH SIP, we are
finding that Arkansas satisfied its consultation requirements when
establishing its LTS.\93\
---------------------------------------------------------------------------
\93\ 76 FR 64216.
---------------------------------------------------------------------------
Comment: The EPA's proposed disapproval of Arkansas's RPGs is not
consistent with its own guidance, treads on the State's authority under
the CAA, and disregards the underlying purpose of the visibility
protection program by criticizing the technical aspect of Arkansas's
evaluation even though EPA acknowledges that Arkansas's SIP provides
for a rate of visibility improvement that achieves the national goal
before the time contemplated by the program itself.
Response: The EPA disagrees that EPA's disapproval of Arkansas's
RPGs is not consistent with its own guidance. EPA's RPG Guidance states
the following with regard to the statutory factors under 40 CFR
51.308(d)(1)(i)(A):
``The regional haze rule requires you to clearly support your
RPG determination in your SIP submission based on the statutory
factors.'' \94\
---------------------------------------------------------------------------
\94\ See EPA's Guidance for Setting Reasonable Progress Goals
Under the Regional Haze Program (June 1, 2007), Section 2.4.
As explained in more detail elsewhere in our response to comments,
even if emission reductions anticipated from implementation of BART and
other CAA programs during the initial planning period would result in a
slightly greater rate of improvement in visibility than would be needed
to attain the URP, the State must still consider the four statutory
factors in setting its RPGs.
EPA also disagrees with the commenter's statement that EPA's
proposed disapproval of Arkansas's RPGs treads on the state's authority
under the CAA. The CAA requires that in determining reasonable
progress, states should take into consideration the costs of
compliance, the time necessary for compliance, and the energy and non-
air quality environmental impacts of compliance, and the remaining
useful life of any existing source subject to such requirements.\95\
Since the State has not taken into consideration these four factors,
EPA's disapproval of Arkansas's RPGs is in accordance with the CAA.
While we do recognize that the CENRAP's modeling demonstrates that
Arkansas is projected to meet the URP for the first implementation
period ending in 2018 for both of its Class I areas, we emphasize that
we cannot approve Arkansas's RPGs because in setting its RPGs the State
did not satisfy the requirements of the CAA Sec. 169A(g)(1), the
RHR,\96\ and 40 CFR 51.308(d)(1)(i)(A).
---------------------------------------------------------------------------
\95\ CAA section 169A(g)(1).
\96\ 64 FR 35731.
---------------------------------------------------------------------------
Comment: With respect to establishment of RPGs, EPA has provided
that the BART Rule does not require a definitive dv or percent
improvement in visibility. All the BART Rule requires for each state is
a demonstration of improvement of visibility. To that end, ADEQ did
show in its RH SIP that there was a statistically significant
improvement to visibility in the Class I areas modeled using the
presumptive limits through statistical analysis and photochemical
modeling.
Response: It appears that the comment may have been referring to
the RHR rather than the BART Rule, as it is the RHR that establishes
the RPG requirements. While EPA agrees that the RHR does not require a
definitive dv or percent improvement in visibility with respect to the
establishment of RPGs,\97\ we disagree that all the RHR requires in
terms of RPGs is a demonstration of visibility improvement. The RHR
requires that the RPGs provide for an improvement in visibility for the
most impaired days over the period of the implementation plan and
ensure no degradation in visibility for the least impaired days over
the same period.\98\ However, the RHR also establishes other analytical
requirements states must satisfy in establishing their RPGs. Among
these, is the requirement for states to consider the four statutory
factors under 40 CFR 51.308(d)(1)(i)(A), which is a requirement that
Arkansas has not satisfied.
---------------------------------------------------------------------------
\97\ 64 FR 35731.
\98\ 64 FR 35734.
---------------------------------------------------------------------------
Comment: The ADEQ acted consistently with the EPA's RPG Guidance
when it did not perform a four-factor analysis in establishing
Arkansas's RPGs. The RPG Guidance provides that if common sense
dictates that a particular statutory factor cannot be applied to a
particular source category (i.e. non-point sources), then the state's
analysis may reflect that, and emissions reductions from such sources
may still be included in the SIP.
Response: The section of EPA's RPG Guidance the comment refers to
states that the guidance is primarily aimed at helping states apply the
four statutory factors to point sources, and that EPA recognizes that
even though states must look at all source categories affecting
visibility when evaluating the four statutory factors, application of
some of the statutory factors to certain non-point sources may not be
practical.\99\ The comment appears to imply that this section of EPA's
RPG Guidance supports the State's decision not to conduct an evaluation
of the four statutory factors. However, EPA's RPG Guidance does not
state, or in any way imply, that application of any of the statutory
factors in considering control measures for point sources is not
practical. On the contrary, EPA's RPG Guidance clearly states that the
guidance is mainly aimed
[[Page 14629]]
at helping states apply the four statutory factors to point sources.
---------------------------------------------------------------------------
\99\ See EPA's Guidance for Setting Reasonable Progress Goals
Under the Regional Haze Program (June 1, 2007), Section 1.2.
---------------------------------------------------------------------------
Comment: There is no requirement in the BART Rule for a state to
adopt control measures that it does not consider necessary or
reasonable when it can be shown that its RPGs represent a rate of
progress that it and other affected states have found to be reasonable.
The EPA's role in evaluating a state's RPGs is to assure that other
affected states have been consulted and are satisfied that the RPGs are
appropriate. In fact, Arkansas's Class I areas as well as Missouri's
Class I areas are on the glidepath and are expected to meet the rate of
progress goals for the first implementation period ending in 2018.
Response: While EPA agrees that the BART Rule does not require a
state to adopt control measures under reasonable progress if the state
determines that such control measures are not reasonable, EPA notes
that the state must make the determination of whether those controls
are reasonable or not through an evaluation of the four statutory
factors. The RHR states the following:
``Today's final rule requires the States to determine the rate
of progress for remedying existing impairment that is reasonable,
taking into consideration the statutory factors, and informed by
input from all stakeholders.'' \100\
---------------------------------------------------------------------------
\100\ 64 FR 35731.
Arkansas has not considered the four statutory factors, and
therefore, cannot make the claim that additional control measures are
not reasonable. This is especially troublesome in light of the fact
that there are sources in Arkansas not subject to BART which impair
visibility by more than 0.5 dv, as explained in more detail in our
proposed rulemaking. While EPA agrees that one of EPA's roles in
evaluating a state's RPGs is to assure that other affected states have
been consulted and agree with the RPGs the state has established,\101\
EPA notes that our role is not limited to just that. The RH regulations
state the following:
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\101\ 40 CFR 51.308(d)(1)(iv).
``In determining whether the State's goal for visibility
improvement provides for reasonable progress towards natural
visibility conditions, the Administrator will evaluate the
demonstrations developed by the State pursuant to paragraphs d(1)(i)
and (d)(1)(ii) of this section.'' \102\
---------------------------------------------------------------------------
\102\ 40 CFR 51.308(d)(1)(iii).
Among the demonstrations the state is required to develop pursuant
to 40 CFR 51.308(d)(1)(i) is an evaluation of the four statutory
factors. As such, EPA's role in evaluating a state's RPGs is not
limited to ensuring that other affected states have been consulted and
agree that the state's RPGs are appropriate.
With regard to the comment that Arkansas Class I areas as well as
Missouri's Class I areas are on the ``glidepath,'' EPA notes that even
if a state is projected to meet the URP for its Class I areas during
the first implementation period ending in 2018, this is not a safe
harbor from more stringent regulation. The RHR requires states to
calculate the URP and determine what control measures would be needed
to achieve this amount of progress during the first implementation
period and to determine whether those measures are reasonable based on
an evaluation of the four statutory factors.\103\ The RHR states the
following:
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\103\ 64 FR 35732.
``If the State determines that the amount of progress identified
through the analysis is reasonable based upon the statutory factors,
the State should identify this amount of progress as its reasonable
progress goal for the first long-term strategy, unless it determines
that additional progress beyond this amount is also reasonable. If
the State determines that additional progress is reasonable based on
the statutory factors, the State should adopt that amount of
progress as its goal for the first long-term strategy.'' \104\
---------------------------------------------------------------------------
\104\ 64 FR 35732.
As such, being on the ``glidepath'' does not mean a state is
allowed to forego an evaluation of the four statutory factors when
establishing its RPGs. Based on an evaluation of the four statutory
factors, states may determine that RPGs that provide for a greater rate
of visibility improvement than would be achieved with the URP for the
first implementation period are reasonable.
Comment: The EPA's statement in its proposed rulemaking that
Arkansas's RH SIP fails to ensure adequate reasonable progress toward
meeting the national visibility goal without Arkansas conducting
additional analysis is not supported by the record. The EPA admits that
under Arkansas's RPGs, natural visibility conditions will be obtained
in 2062 for Caney Creek and 2063 for Upper Buffalo. Based on modeling
approved by EPA, Arkansas will meet the visibility goals as set out in
the RHR prior to the target date of 2064. Therefore, the EPA's position
that Arkansas must undertake additional analysis even though Arkansas's
proposed RPGs provide a greater rate of improvement in visibility to
attain URP is incorrect and is an attempt to step on the state's
authority.
Response: The EPA notes that the RHR requires states to determine
what constitutes reasonable progress by, among other things,
consideration of the four statutory factors. The RHR states that the
determination of what constitutes reasonable progress can only be made
once the necessary technical analyses of emissions, air quality, and
the reasonable progress factors have been conducted.\105\
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\105\ 64 FR 35721.
---------------------------------------------------------------------------
While in our proposed rulemaking we noted that Arkansas calculated
that under its RPGs, it would attain natural visibility conditions in
2062 for Caney Creek and 2063 for Upper Buffalo, we would like to
clarify that such calculation assumes that Arkansas would be able to
achieve the rate of improvement reflected by the RPGs for the first
implementation period ending in 2018, and each implementation period
thereafter. The RHR states the following:
``Once a State has adopted a reasonable progress goal and
determined what progress will be made toward that goal over a 10-
year period, the goal itself is not enforceable. All that is
`enforceable' is the set of control measures which the State has
adopted to meet that goal. If the State's strategies have been
implemented but the State has not met its reasonable progress goal,
the State could either: (1) Revise its strategies in the SIP for the
next long-term strategy period to meet its goal, or (2) revise the
reasonable progress goals for the next implementation period. In
either case, the State would be required to base its decisions on
appropriate analyses of the statutory factors included in 40 CFR
51.308(d)(1)(i)(A) and (B) of the final rule.'' \106\
---------------------------------------------------------------------------
\106\ 64 FR 35733.
As such, there is no certainty that the State will achieve its RPGs
for the first implementation period ending in 2018, let alone for each
implementation period thereafter. With regard to the comment that the
modeling approved by EPA shows that Arkansas will meet the visibility
goals as set out in the RHR prior to the target date of 2064, EPA notes
that the CENRAP modeled the projected visibility conditions anticipated
at each Class I area in 2018. The CENRAP modeling is based on emissions
reductions expected to result from Federal, State, and local control
programs that are either currently in effect or with mandated future-
year emission reduction schedules that predate 2018. The CENRAP
modeling itself did not show that Arkansas will meet the visibility
goals as set out in the RHR prior to 2064. Rather, the rate of
visibility improvement anticipated by the CENRAP modeling projections
for 2018, if sustained, will result in a return to natural visibility
prior to 2064. This assumes that the same level of reduction of
visibility impairment that is expected
[[Page 14630]]
to occur during the first implementation period ending in 2018 will
occur during each implementation period until the final implementation
period ending in 2064. However, there is no guarantee that this will in
fact occur.
As explained in our proposed rulemaking on the Arkansas RH SIP, in
establishing its RPGs, the State is required by CAA Sec. 169A(g)(1)
and 40 CFR 51.308(d)(1)(i)(A) to consider the costs of compliance, the
time necessary for compliance, the energy and non-air quality
environmental impacts of compliance, and the remaining useful life of
any potentially affected sources, and include a demonstration showing
how these factors were taken into consideration in selecting the goal.
An analysis of the four statutory factors is precisely the ``additional
analysis'' EPA refers to in its proposed rulemaking on the Arkansas RH
SIP.\107\ The RHR does not exempt states from evaluating the four
statutory factors if their RPGs provide a greater rate of improvement
in visibility to attain URP. Since Arkansas has not satisfied this
requirement, EPA disagrees that our disapproval of Arkansas's RPGs is
an attempt to step on the state's authority.
---------------------------------------------------------------------------
\107\ 76 FR 64195.
---------------------------------------------------------------------------
Comment: The EPA's reliance on disapproving the Arkansas LTS based
on the disapproval of ADEQ's BART determinations is incorrect and not
consistent with the RHR. Under the RHR, states must develop a LTS that
includes emissions limitations, compliance schedules, and other
measures as necessary to achieve the RPGs for Class I areas within a
state. Arkansas's LTS complies with the RHR by demonstrating that
Arkansas will meet the visibility goals as set out in the RHR prior to
the date of 2064 and the LTS will help Arkansas achieve its RPGs. As
such, Arkansas should be given the maximum deference in attaining those
RPGs. In addition, ADEQ's BART determinations are sound and are in
compliance with the RH program. Thus, the EPA should approve the
portion of the Arkansas RH SIP pertaining to its LTS.
Response: With regard to the comment that EPA's reliance on
disapproving Arkansas's LTS based on the disapproval of some of
Arkansas's BART determinations is incorrect and inconsistent with the
RHR, EPA clarifies that the basis for EPA's partial disapproval of the
State's LTS is that the state did not properly consider emission limits
and schedules for compliance to include in its LTS, as required
pursuant to 40 CFR 51.308(d)(3)(v)(C). Since 40 CFR 51.308(d)(3)(v)(C)
requires that in developing its LTS, Arkansas consider emissions
limitations and schedules of compliance to achieve the RPGs, the State
included the BART emission limits it established for its subject to
BART sources as part of the LTS. As explained in our proposed
rulemaking, EPA disagrees that all of Arkansas's BART determinations
are in compliance with the RHR. The BART emission limits established by
Arkansas are an element of the LTS, and because we are disapproving a
portion of Arkansas's BART determinations, it follows that the State
did not properly consider emission limitations and schedules for
compliance to include in its LTS, as required under 40 CFR
51.308(d)(3)(v)(C). Therefore, we cannot approve this element of the
LTS. Furthermore, as raised by another comment, since Arkansas did not
consider the four statutory factors under 40 CFR 51.308(d)(1)(i)(A)
when establishing its RPGs, it is not possible to know, at this point,
whether requiring additional controls for Arkansas source categories
affecting visibility constitutes reasonable progress. This further
supports our finding that Arkansas has not properly considered emission
limitations and schedules for compliance in establishing its LTS, as
required under 40 CFR 51.308(d)(3)(v)(C).
The comment suggests that if a state develops a LTS that is
expected to achieve the state's RPGs and meet the national visibility
goal prior to 2064, the state will have met the LTS requirements in the
RHR. While EPA agrees that the RHR requires states to develop a LTS
that includes emissions limitations, compliance schedules, and other
measures as necessary to achieve the RPGs established by states having
mandatory Class I areas,\108\ EPA notes that the RHR establishes
several requirements a state must satisfy when establishing its
LTS.\109\ Among these is the requirement for states to consider, at a
minimum, the seven factors under 40 CFR 51.308(d)(3)(v). As explained
above, one of the factors states are required to consider is emission
limitations and schedules for compliance to include in the LTS.\110\
Arkansas has not properly considered this factor. Furthermore, as
already explained above, Arkansas did not establish RPGs in accordance
with the RHR and CAA requirements. As such, EPA cannot approve those
RPGs. Therefore, Arkansas has not demonstrated that its LTS includes
enforceable emissions limitations and compliance schedules, as
necessary to achieve reasonable progress. EPA cannot fully approve
Arkansas's LTS.
---------------------------------------------------------------------------
\108\ 40 CFR 1.308(d)(3).
\109\ 64 FR 35734.
\110\ 40 CFR 1.308(d)(3)(v)(C).
---------------------------------------------------------------------------
Comment: Despite the fact that the CENRAP's modeling for the year
2018 shows a significant improvement in visibility at Caney Creek and
Upper Buffalo (3.88 dv and 3.75 dv, respectively), the available
emissions data that was used to conduct this modeling suggests
something different. This emissions data shows that SO2
emissions from EGUs in Arkansas are projected to increase by roughly
35,000 tons per year (tpy) between 2002 and 2018. While non-EGU point
source emissions of SO2 in Arkansas are projected to
decrease by 2018, overall point source emissions of SO2 (EGU
plus non-EGU emissions) in Arkansas are projected to increase by
roughly 15,000 tpy. When emissions from all sources of SO2
in Arkansas are summed together (point sources, onroad sources, and
area sources), SO2 emissions in 2018 are projected to be
higher than 2002 levels.
NOX emissions from non-EGUs are projected to be 25%
higher in 2018 compared to 2002 levels. Even though NOX
emissions from non-EGUs are projected to decrease between 2002 and
2018, overall point source NOX emissions (non-EGUs plus
EGUs) are projected to increase in 2018 from 2002 levels. When
emissions from all sources of NOX in Arkansas are summed
together (point sources, onroad sources, and area sources),
NOX emissions in 2018 are projected to be lower than 2002
levels, but most of these emissions reductions are from onroad sources
in Arkansas. Also, 2018 emissions of PM2.5, PM10,
and ammonia (NH3) from Arkansas sources were also projected
to increase somewhat compared to 2002 levels. Considering that sulfates
are the significant contributor to visibility impairment at both
Arkansas Class I areas on the majority of the 20% worst days, it is
difficult to understand how the CENRAP 2018 modeling showed such a
significant improvement in visibility when SO2 emissions
from Arkansas are projected to increase between 2002 and 2018.
EPA also indicated that there is an under-prediction bias in the
model that must be considered when examining source apportionment
results for sulfate. Given that the 2018 modeling reflects a low bias
in the projection of visibility impacts due to sulfates, that there are
significant projected increases in SO2 emissions from
Arkansas point sources in 2018, and that the 2018 point source
emissions from NOX and other visibility impairing pollutants
are also projected
[[Page 14631]]
to be higher than 2002 emissions, the 2018 CENRAP modeling is
questionable.
As discussed by EPA in Appendix A to its TSD for its proposed
rulemaking on the Arkansas RH SIP, it appears that the bulk of the
projected visibility improvement in 2018 in Arkansas's Class I areas
may be based on projected emissions reductions from sources in Texas.
However, Texas has acknowledged uncertainties in its 2018 emissions
projections, and that the Texas emissions inventory is based on the
Integrated Planning Model (IPM) Version 2.19, whereas other planning
organizations used version 3.0 of the IPM, which EPA has indicated
provides ``significantly more accurate prediction of future EGU
operating scenarios and emissions'' (see Exhibit 21). Texas also stated
that the IPM Version 2.19 used by the CENRAP projected approximately
14% increase in coal/lignite-fired generating capacity and a 32%
increase in gas-fired capacity in Texas, whereas the Electric
Reliability Council of Texas (ERCOT) predicted a greater percentage of
growth in coal/lignite-fired generating capacity than natural gas-fired
capacity (see Exhibit 21). Given the uncertainty in Texas' 2018
emission projections and that the 2018 modeling may under-predict
visibility impacts from sulfates, Arkansas should not be allowed to
forego performing an analysis of measures that would enable the state
to ensure reasonable progress towards reaching natural background
visibility conditions at the State's Class I areas. EPA must disapprove
the Arkansas RH SIP for failure to include a four-factor analysis of
reasonable progress milestones for the State's Class I areas. As part
of a four-factor analysis of reasonable progress goals, Arkansas should
evaluate emission control strategies that can be implemented to reduce
Arkansas's share of visibility-impairing pollution.
Response: The EPA agrees that SO2 emissions from EGUs in
Arkansas are projected to increase considerably between 2002 and 2018,
that overall point source emissions of SO2 (i.e. EGU plus
non-EGU emissions) in Arkansas are projected to increase by roughly
15,000 tpy, and that total SO2 emissions in Arkansas (i.e.
point sources, onroad sources, and area sources combined) are projected
to increase between 2002 and 2018. We also agree that even though total
NOX emissions in Arkansas (i.e. point sources, onroad
sources, and area sources combined) are projected to decrease in 2018
from 2002 levels, most of these emissions reductions are from onroad
sources in Arkansas. As discussed in Appendix A of the TSD for our
proposed action on the Arkansas RH SIP, we agree that the modeling
demonstrates that most of the projected visibility improvement in 2018
in Caney Creek appears to be based on projected emissions reductions
from sources in Texas and that Texas has acknowledged that there are
uncertainties in its 2018 emissions projections. Consistent with the
points raised in the comment, we are disapproving Arkansas's RPGs for
Caney Creek and Upper Buffalo. As discussed in our proposed rulemaking
and in our response to previous comments, Arkansas must evaluate the
four statutory factors when establishing its RPGs. As part of its
evaluation of the four statutory factors Arkansas must determine what
(if any) level of control is reasonable to require sources in Arkansas
to comply with to achieve reasonable progress at Arkansas's Class I
areas.
C. Comments on BART
1. Evaluation of the Most Stringent Level of Control in the BART
Analysis
Comment: The EPA pointed out that Entergy White Bluff did not
evaluate the most stringent level of control achievable in that it did
not evaluate emission limits lower than the presumptive SO2
BART emission limit of 0.15 lb/MMBtu for either a wet or a dry
scrubber, but EPA did not mention that both wet and dry scrubbers can
achieve greater than the control efficiencies assumed in the White
Bluff analysis (i.e. greater than 95% control with a wet scrubber, and
greater than 92% control with a dry scrubber). EPA pointed out that
SO2 emission rates as low as 0.065 lb/MMBtu have been
documented with installation of dry scrubbers. EPA recently proposed a
FIP requiring the installation of dry scrubbers as BART at six coal-
fired EGUs in Oklahoma, to achieve the SO2 BART emission
limit of 0.06 lb/MMBtu on a 30-day rolling average basis (76 FR 16187-
188, 16193-194). These units burn similar low sulfur coal as that
primarily burned at the Entergy White Bluff Units 1 and 2. A limit of
0.06-0.065 lb/MMBtu would reflect 92.2% to 92.8% removal from the
highest SO2 rate identified by Entergy during the base case
of 0.83 lb/MMBtu. Therefore, SO2 emission rates much lower
than 0.15 lb/MMBtu should be achievable with the installation of a wet
scrubber or a dry scrubber/baghouse at White Bluff Units 1 and 2. Wet
scrubbers can achieve 98-99% SO2 removal and dry scrubbers
can achieve 95% SO2 removal (see Exhibits 17, 17A, 17B, 17C,
and 17D). An October 2008 Sargent & Lundy study of SO2
control technologies for White Bluff makes clear that dry scrubbers are
capable of 95% removal efficiency, and wet scrubbers are capable of 95-
99% removal efficiency (see Exhibit 16). This study also indicates that
the typical Powder River Basin coal SO2 emission rates
expected from wet scrubbers ranges from 0.03 to 0.10 lb/MMBtu, and for
dry scrubbers ranges from 0.06 to 0.12 lb/MMBtu. Therefore, EPA should
require consideration of emission limits more stringent than ADEQ's
proposed SO2 BART limit of 0.15 lb/MMBtu.
Response: The EPA agrees that wet scrubbers for control of
SO2 emissions have been demonstrated to achieve as high as
98-99% removal efficiency, while dry scrubbers have been demonstrated
to achieve as high as 95% removal efficiency. SO2 emission
rates much lower than 0.15 lbs/MMBtu are achievable at Entergy White
Bluff Units 1 and 2 with the installation of a wet or dry scrubber.
This is consistent with our proposed rulemaking on the Arkansas RH SIP,
in which we noted that the 0.15 lb/MMBtu presumptive SO2
limit the State established for both the bituminous and sub-bituminous
coal firing scenarios for White Bluff Units 1 and 2 corresponds to 82%
control removal of the wet scrubber at Unit 1 and 80% control removal
of the wet scrubber at Unit 2, while such controls are capable of a
higher control efficiency.\111\ EPA's proposed rulemaking proposed to
disapprove the State's determination that SO2 BART for White
Bluff Units 1 and 2 is the presumptive limit of 0.15 lb/MMBtu for both
the sub-bituminous and bituminous coal firing scenarios, as the State
is required to evaluate the cost and visibility impact of operating
controls at the maximum control efficiency achievable (i.e. to achieve
the most stringent emission limit capable of being achieved by those
controls).\112\,\113\
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\111\ 76 FR 64206.
\112\ 64 FR 35740.
\113\ 76 FR 64206.
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Comment: A study conducted by Babcock & Wilcox at tangentially-
fired units burning sub-bituminous Powder River Basin coal showed
NOX emission rates with ultra low NOX burners and
overfire air that were generally less than 0.13 lb/MMBtu (see Exhibit
17F). The proposed NOX limits for White Bluff Units 1 and 2
of 0.15 lb/MMBtu when burning sub-bituminous coal and 0.28 lb/MMBtu
when burning bituminous coal do not reflect the capability of the state
of the art low NOX burners and overfire air. Also, since the
White Bluff Units 1 and 2 burn primarily sub-bituminous coal, EPA's
presumptive BART limit for sub-bituminous coal
[[Page 14632]]
(and not for bituminous coal) should be evaluated. The BART Guidelines
do not provide for prorating the presumptive BART limits based on the
percentages of each coal burned. Presumptive limits should be defined
by the coal type predominantly burned by the White Bluff units and BART
must be based on the coal the units have historically burned, not on
the type of coal that might be used in the future.
Response: The EPA agrees that the NOX limits adopted by
the State of 0.15 lb/MMBtu when burning sub-bituminous coal and 0.28
lb/MMBtu when burning bituminous coal for White Bluff Units 1 and 2 do
not reflect the capability of the state of the art low NOX
burners and overfire air.
In addition, the BART Rule and the BART Guidelines do not specify
whether a state can make separate BART determinations for each type of
fuel burned by a given source. This should not be interpreted to mean
that a state is not allowed to make separate BART determinations for
each fuel type burned by a given source. The CAA and BART Rule give
states broad authority in making BART determinations. Accordingly,
States may determine it is appropriate to make BART determinations for
each type of fuel burned by a given source. EPA acknowledges that the
BART Guidelines do not specifically mention whether or not states can
prorate the presumptive BART limits based on the percentages of each
coal burned. However, if a source has a history of burning more than
one type of fuel, then the BART determination must either be based on
the fuel resulting in the greatest amount of emissions or the State
must consider BART for each fuel type.
Comment: BART is not the maximum feasible technology but only the
technology that is appropriate as determined by the state in weighing
the public interest factors. EPA is incorrect in its assertion that the
BART Guidelines require consideration of the most stringent control
technology in the BART analysis. The EPA is going beyond the scope of
the CAA by proposing that BART analysis requires identification and
evaluation of the maximum control technology available when the state
conducts BART evaluations.
Response: The EPA agrees that BART is not defined as the ``maximum
feasible technology.'' However, EPA disagrees that EPA is going beyond
the scope of the CAA by stating that states must evaluate the most
stringent controls available in their BART evaluations. The BART
Guidelines explicitly require consideration of the most stringent
control technology in the BART analysis. The CAA states the following:
``[I]n determining best available retrofit technology the State
(or the Administrator in determining emission limitations which
reflect such technology) shall take into consideration the costs of
compliance, the energy and non-air quality environmental impacts of
compliance, any existing pollution control technology in use at the
source, the remaining useful life of the source, and the degree of
improvement in visibility which may reasonably be anticipated to
result from the use of such technology * * *'' \114\
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\114\ CAA section 169A(g)(2).
In accordance with the CAA, EPA promulgated the BART Rule and the
BART Guidelines to clarify the requirements of the RHR's BART
---------------------------------------------------------------------------
provisions. The BART Guidelines provide the following:
``In identifying ``all'' options, you must identify the most
stringent option and a reasonable set of options for analysis that
reflects a comprehensive list of available technologies. It is not
necessary to list all permutations of available control levels that
exist for a given technology-the list is complete if it includes the
maximum level of control each technology is capable of achieving.''
\115\
---------------------------------------------------------------------------
\115\ Appendix Y to Part 41, section IV.D.
Furthermore, the RH regulations define BART as the best system of
continuous emission control technology available and associated
emission reductions achievable, as determined through an evaluation of
the five statutory factors.\116\ As explained in our proposed
rulemaking on the Arkansas RH SIP, the RHR states that since recent
retrofits at existing sources provide a good indication of the current
``best system'' for controlling emissions, these controls must be
considered in the BART analysis.117 118 EPA's proposed
rulemaking also explains that the RHR provides that in establishing
source specific BART emission limits, a state's BART analysis must
identify and consider the maximum level of emission reduction that has
been achieved in other recent retrofits at existing sources in the
source category.119 120
---------------------------------------------------------------------------
\116\ 40 CFR 51.308(e)(1)(ii)(A).
\117\ 64 FR 35740.
\118\ 76 FR 64202.
\119\ 64 FR 35740.
\120\ 76 FR 64202.
---------------------------------------------------------------------------
2. Evaluation of Post-Combustion Controls in the BART Analysis
Comment: We agree with EPA's proposal that the White Bluff Units 1
and 2 BART analysis for NOX in the Arkansas RH SIP only
evaluated options to comply with the presumptive BART limits and the
company failed to evaluate add-on NOX controls such as SCR
and SNCR. NOX emission limits as low as 0.05 lb/MMBtu,
achieved by the installation of SCR, have been promulgated as BART
limits for EGUs such as the San Juan power plant in New Mexico (76 FR
52390, 52439). SCR along with combustion controls are routinely
required as BACT today for proposed new coal-fired power plants. SCR
along with combustion controls have also been required as BART or to
meet RH progress goals at several coal fired power plants, including
the Boswell Energy Center Unit 3 and the Alan S. King Unit 1 facility
in Minnesota (see Minnesota Air Pollution Control Agency revised draft
RH SIP, July 2009); Naughton Unit 3 and Jim Bridger Units 3 and 4 in
Wyoming (see Wyoming draft RH SIP, January 2011); San Juan Units 1-4
(see 76 FR 52388); Four Corners Units 1-5 (See 75 FR 64230); and Big
Stone Unit 1 (see EPA's November 29, 2011 proposed rulemaking on the
South Dakota RH SIP). Installation of SCR along with combustion
controls has been found to be cost-effective both in BART and BACT
determinations, with costs ranging from approximately $4200/ton
NOX removed all the way up to $21,000/ton NOX
removed (see Exhibit 17, 17H, 17I, 17J, and 17K). According to data
compiled by the National Parks Service, the cost effectiveness of SCR
controls at units required to install such controls to meet RH
requirements has ranged from $2,200 to $4,300/ton NOX
removed (see Exhibit 19). White Bluff would greatly reduce
NOX emissions beyond that achieved by the combustion
controls proposed as BART if it were to install SCRs as BART at each
unit. If SCR had been evaluated as BART at White Bluff Units 1 and 2,
NOX emissions would have been 78% lower when the units burn
sub-bituminous coal and 82% lower when the units burn bituminous coal.
Based on testimony before the Arkansas Public Service Commission,
Entergy appears to be planning to install SCR at both units at some
point in the near future (see Exhibit 17L). Entergy's NOX
BART analysis for White Bluff cannot be considered complete without an
evaluation of combustion controls plus SCR.
Response: The EPA agrees that installation and operation of SCR as
BART could potentially result in the reduction of NOX
emissions beyond that achieved by operation of the combustion controls
proposed by the State as BART for White Bluff Units 1 and 2. EPA also
agrees that the State must evaluate SCR controls when it evaluates what
is BART for Entergy
[[Page 14633]]
White Bluff Units 1 and 2. As explained elsewhere in this final
rulemaking, we are finalizing our proposed disapproval of the State's
NOX BART determination (bituminous and sub-bituminous coal
firing scenarios) for White Bluff Units 1 and 2.
Comment: Since EPA explicitly did not evaluate post combustion
controls in establishing presumptive limits for EGUs that burn coal and
do not have existing post-combustion controls for NOX in the
BART Guidelines, post combustion controls should not be required to be
evaluated as part of Arkansas's NOX BART evaluations of
Entergy's White Bluff facility. In addition, since EPA explicitly did
not evaluate post combustion technology when establishing presumptive
limits for boilers other than cyclone units in the BART Guidelines,
post combustion controls should not be required to be evaluated as part
of the Arkansas BART evaluations for Lake Catherine facility.
Response: The EPA agrees that we did not evaluate post-combustion
controls in providing NOX presumptive emission limits for
EGUs that burn coal and have no existing post-combustion controls. The
EPA also points out the BART Guidelines did not provide presumptive
limits for oil-fired units such as Entergy Lake Catherine Unit 4. This
does not mean that Arkansas may forego an evaluation of post-combustion
controls in its NOX BART analyses for Entergy White Bluff
Units 1 and 2 and Lake Catherine Unit 4. As stated in our proposed
rulemaking on the Arkansas RH SIP, the purpose of the presumptive
limits in the BART Guidelines was to identify controls that the Agency
considered to be generally cost-effective across all affected
units.\121\ Because EPA's extensive analysis found that these controls
are generally cost-effective across all affected units and were
anticipated to result in a substantial degree of visibility
improvement, EPA concluded that such affected units should at least
meet the presumptive limits unless the state finds that a more or less
stringent emission limit is BART based on a consideration of the five
statutory factors. EPA's intent was for these generally cost-effective
controls to be used in the State's BART analysis considering the five
factors specified in CAA section 169A(g)(2), and considering the level
of control that is currently achievable at the time that the BART
analysis is being conducted.
---------------------------------------------------------------------------
\121\ 76 FR 64201.
---------------------------------------------------------------------------
Further, in the BART Rule, EPA justified its decision not to
establish presumptive NOX limits based on the use of SCR for
units other than cyclone units, stating the following:
``For other units, we are not establishing presumptive limits
based on the installation of SCR. Although States may in specific
cases find that the use of SCR is appropriate, we have not
determined that SCR is generally cost-effective for BART across unit
types.'' \122\
---------------------------------------------------------------------------
\122\ 70 FR 39136.
As such, in the BART Guidelines, EPA simply concluded that it could
not reach a generalized conclusion as to the appropriateness of more
stringent controls (i.e. post-combustion controls) for coal-fired EGUs
without existing post-combustion controls. Similarly, EPA concluded
that it could not reach a generalized conclusion as to the
appropriateness of providing presumptive limits based on the
installation of SCR (or even combustion controls for that matter) for
oil-fired units. This does not mean that states should not evaluate
post-combustion NOX controls at affected sources. As
explained elsewhere in this final rulemaking, in response to comments
on the proposed BART Guidelines that the presumptive SO2 EGU
limits should be more stringent, EPA justified its decision to not
provide more stringent presumptive emission limits by explaining that
after considering the five statutory factors, States may find that a
more or less stringent emission limit is BART [emphasis added].\123\
Similar statements are made elsewhere in the BART Rule.
---------------------------------------------------------------------------
\123\ 70 FR 39132.
---------------------------------------------------------------------------
Furthermore, the RH regulations define BART as the best system of
continuous emission control technology available and associated
emission reductions achievable, as determined through an evaluation of
the five statutory factors.\124\ As explained in our proposed
rulemaking on the Arkansas RH SIP, the RHR states that since recent
retrofits at existing sources provide a good indication of the current
``best system'' for controlling emissions, these controls must be
considered in the BART analysis.125 126 EPA's proposed
rulemaking also explains that the RHR provides that in establishing
source specific BART emission limits, a state's BART analysis must
identify and consider the maximum level of emission reduction that has
been achieved in other recent retrofits at existing sources in the
source category.127 128 In most cases, the maximum level of
emission reduction is achieved through the installation and operation
of post-combustion controls. Therefore, the State should evaluate post-
combustion controls in its BART analysis for Entergy White Bluff Units
1 and 2.
---------------------------------------------------------------------------
\124\ 40 CFR 51.308(e)(1)(ii)(A).
\125\ 64 FR 35740.
\126\ 76 FR 64202.
\127\ 64 FR 35740.
\128\ 76 FR 64202.
---------------------------------------------------------------------------
Comment: The BART Guidelines indicate that States should only
consider the installation of current combustion control technology on
oil and gas-fired units. Therefore, EPA cannot disapprove BART
determinations on the basis that post combustion control technology was
not evaluated for Entergy's Lake Catherine Unit 4.
Response: The EPA disagrees that the BART Guidelines indicate that
States should only consider the installation of current combustion
control technology on oil and gas-fired units. The BART Guidelines
state the following:
``For oil-fired and gas-fired EGUs larger than 200 MW, we
believe that installation of current combustion control technology
to control NOX is generally highly cost-effective and
should be considered in your determination of BART for these
sources.'' \129\
---------------------------------------------------------------------------
\129\ Appendix Y to Part 51, section IV.E.4.
The context of the above statement is with regard to whether EPA
believed a presumptive emissions limit is appropriate for gas fired and
fuel oil fired EGUs. It was not intended to limit the consideration for
BART for these sources to combustion controls only. The BART Guidelines
should not be interpreted to mean that states should not consider
NOX post-combustion controls in their BART analyses for gas
fired and oil fired units. The RH regulations define BART as the best
system of continuous emission control technology available and
associated emission reductions achievable, as determined through an
evaluation of the five statutory factors.\130\ As explained in our
proposed rulemaking on the Arkansas RH SIP, the RHR states that since
recent retrofits at existing sources provide a good indication of the
current ``best system'' for controlling emissions, these controls must
be considered in the BART analysis.131 132 EPA's proposed
rulemaking also explains that the RHR provides that in establishing
source specific BART emission limits, a state's BART analysis should
identify and consider the maximum level of emission reduction that has
been achieved in other recent retrofits at existing sources in the
source category.133 134 In most cases, the maximum level of
emission reduction is achieved through the
[[Page 14634]]
installation and operation of post-combustion controls. Therefore, the
State must evaluate post-combustion control technology in its BART
analysis for Entergy Lake Catherine Unit 4.
---------------------------------------------------------------------------
\130\ 40 CFR 51.308(e)(1)(ii)(A).
\131\ 64 FR 35740.
\132\ 76 FR 64202.
\133\ 64 FR 35740.
\134\ 76 FR 64202.
---------------------------------------------------------------------------
Comment: The EPA cannot disapprove the NOX BART
determinations for the Domtar Ashdown Mill Power Boilers No. 1 and 2
for not evaluating SNCR. While SNCR has been installed on several
industrial boilers similar to Domtar's Boilers, at the time that the
BART evaluation was conducted, SNCR was not available. Even if you
considered SNCR and a 50% reduction in emissions (the upper level of
control expected with SNCR) less than 10 days of impacts greater than
0.5 dv would be eliminated. Thus, the cost of SNCR is not appropriate,
especially considering Arkansas is already achieving progress toward
the overall goal of the RH program.
Response: The BART Guidelines provide the following:
``In order to provide certainty in the process, all technologies
should be considered if available before the close of the State's
public comment period. You need not consider technologies that
become available after this date. As part of your analysis, you
should consider any technologies brought to your attention in public
comments. If you disagree with public comments asserting that the
technology is available, you should provide an explanation for the
public record as to the basis for your conclusion.'' \135\
---------------------------------------------------------------------------
\135\ Appendix Y to Part 51, section IV.D.2.
As pointed out in our proposed rulemaking on the Arkansas RH SIP,
SNCR was available for industrial boilers similar to Domtar's boilers
before the close of the State's public comment period.\136\ As
documented by Arkansas in Appendix 2.1 of its RH SIP, EPA provided
comments to Arkansas on this matter on May 1, 2007. This was far in
advance of the end of the State's public comment period. As documented
in Appendix 2.1 of the Arkansas RH SIP, the State did not provide any
form of response to EPA's comment, nor did the State evaluate operation
and installation of SNCR at Domtar Ashdown Mill Power Boilers No. 1 and
2.
---------------------------------------------------------------------------
\136\ 76 FR 64209.
---------------------------------------------------------------------------
Since the State did not conduct modeling to evaluate the visibility
impact of operation of SNCR at Domtar Power Boilers No. 1 and 2, it is
not clear how one could reach a conclusion that SNCR would result in
the elimination of less than 10 days of impacts greater than 0.5 dv.
Furthermore, the RHR and BART Guidelines require states to consider all
five statutory factors, and not just the visibility impact resulting
from operation of SNCR. The BART Rule states the following:
``[T]he degree of improvement in visibility which may reasonably
be anticipated to result from the use of [BART]'' is only one of
five criteria that the State must consider together in making a BART
determination.'' \137\
---------------------------------------------------------------------------
\137\ 70 FR 39123.
A proper evaluation of SNCR, through a consideration of the five
statutory factors, may demonstrate that installation and operation of
SNCR at Domtar Power Boilers 1 and 2 is cost-effective. As such, EPA
cannot approve the State's NOX BART determinations for the
Domtar Power Boilers No. 1 and 2.
Comment: The EPA is incorrect in stating that not all technically
feasible options were considered and visibility impacts considered for
the NOX BART determination for Domtar. Methane De-
NOX (MdN) is the only control technology deemed technically
feasible for which modeling was not completed. The technical capability
of MdN is highly questionable. There is no reason to complete a
modeling analysis for this option because it was cost prohibitive
regardless of what visibility improvement may be gained from its use.
Because of this, the decision was made to forgo the modeling. Such a
decision is within ADEQ's discretionary authority to weigh the BART
factors as they feel appropriate as spelled out in the BART Guidelines.
This decision is reasonable since ADEQ is already achieving better than
necessary progress towards attaining its visibility goals.
Response: The EPA stands by the statement made in its proposed
rulemaking on the Arkansas RH SIP that not all technically feasible
options were considered for the NOX BART determination for
Domtar Power Boilers 1 and 2. As explained in our proposed rulemaking
and elsewhere in our response to comments, Arkansas did not evaluate
SNCR controls even though such NOX control is technically
feasible, having been demonstrated at industrial boilers similar to
Domtar Power Boilers No. 1 and 2 well in advance of the end of the
State's public comment period for the Arkansas RH SIP.
EPA also stands by the statement made in its proposed rulemaking on
the Arkansas RH SIP that the State did not evaluate the visibility
impact of all technically feasible options. The preamble to the RHR
states the following:
``We agree with commenters who asserted that the method for
assessing BART controls for existing sources should consider all of
the statutory factors.'' \138\
---------------------------------------------------------------------------
\138\ 70 FR 39131.
The BART Guidelines also provide the following with regard to the
---------------------------------------------------------------------------
selection of BART:
``You have discretion to determine the order in which you should
evaluate control options for BART. Whatever the order in which you
choose to evaluate options, you should always (1) display the
options evaluated; (2) identify the average and incremental costs of
each option; (3) consider the energy and non-air quality
environmental impacts of each option; (4) consider the remaining
useful life; and (5) consider the modeled visibility impacts.''
\139\
---------------------------------------------------------------------------
\139\ Appendix Y to Part 51, section IV.E.2.
Therefore, in their BART evaluations, States must consider the
visibility impact of a control option before eliminating it. In
particular, for Domtar Power Boiler No. 1, for which the State
determined that NOX BART is no additional controls
(resulting in no emissions reductions or visibility improvement beyond
baseline levels), an evaluation of all five statutory factors is
necessary before the State can make the determination that no retrofit
controls are available for Domtar Power Boiler No. 1.
The EPA disagrees with the comment that the decision to forego
modeling the visibility impacts of Methane De-NOX (the only
technically feasible control option the State identified for Domtar
Power Boiler 1) is reasonable since ADEQ is already achieving better
than necessary progress towards attaining its visibility goals. EPA
would like to clarify that the State is not already achieving better
than necessary progress towards attaining its visibility goals, as the
commenter's statement is based on modeling projections based on
emissions reductions resulting from BART and the implementation of
other CAA requirements, and many of these emissions reductions have yet
to take place. Furthermore, as explained in more detail in our proposed
rulemaking on the Arkansas RH SIP and elsewhere in our response to
comments, EPA is disapproving the State's RPGs because the State did
not evaluate the four statutory factors under 40 CFR
51.308(d)(1)(i)(A). Therefore, the claim that Arkansas is already
achieving better than necessary progress towards attaining its
visibility goals cannot be made.
Comment: In addition to reducing visibility impairing regional
haze, SCR systems can oxidize elemental mercury, making it easier to
capture downstream in wet flue gas desulfurization (FGD) systems or PM
collection devices.
[[Page 14635]]
Industry improvements in SCR technology that would enhance mercury
oxidation for all coal types are currently being developed. Significant
mercury reductions would be a likely co-benefit if an SCR is coupled
with a baghouse designed for state-of-the-art PM control.
Response: While EPA agrees that SCR technology coupled with a
baghouse may result in significant reductions in mercury emissions, EPA
notes that mercury is not considered a visibility impairing pollutant.
As such, the control of mercury emissions is outside the scope of the
RHR. However, if in evaluating control technologies for a BART
pollutant for a given source, a state finds that two or more
technologies (or combination of technologies) would have similar
visibility benefits, the state may justify selection of one of the
technologies on the basis of its non-air quality environmental
benefits. For example, a state may justify selection of SCR technology
coupled with a baghouse to control NOX emissions over a
different control option on the basis that SCR coupled with a baghouse
would result in less mercury emissions going into the soil or a nearby
body of water. That being said, as explained in our proposed rulemaking
on the Arkansas RH SIP and elsewhere in our response to comments,
Arkansas must evaluate NOX post-combustion controls (i.e.
SCR and SNCR) in its BART analyses for subject to BART sources.
Comment: SCR would remove up to 3,832 tpy NOX per unit
at Entergy White Bluff beyond what the combustion controls currently
proposed to meet BART would remove. Visibility in the Region's Class I
areas would further be improved by the NOX emissions
reductions achievable with combustion controls plus SCR at White Bluff
Units 1 and 2, especially since, as EPA stated in its proposed
rulemaking, a ``considerable portion'' of the visibility impairment in
the Class I areas of Arkansas and Missouri is due to NOX
emissions (76 FR 64207). According to EPA's AirData Web site, in 2002,
the most recent year of emissions data in the AirData system, White
Bluff was the largest industrial source of NOX emissions in
the state. Therefore, it is necessary that a complete and proper
evaluation of SCR and combustion controls be conducted to determine
BART for White Bluff Units 1 and 2.
Response: Consistent with our proposed rulemaking on the Arkansas
RH SIP and other responses to other comments, EPA agrees that the State
must conduct a BART analysis that properly evaluates both combustion
and post-combustion controls at Entergy White Bluff Units 1 and 2.
3. Comments on the State's PM BART Emission Limits We Proposed To
Approve
Comment: BART is based on a five-factor analysis, and the
requirement for a five-factor analysis stems from statutory and
regulatory requirements regarding how BART is to be determined (see 40
CFR 51.308(e)(1)(ii)(A) and section 169A(g) of the CAA, 42 U.S.C.
7491(g)). A proper evaluation of BART for White Bluff Units 1 and 2 and
Flint Creek Boiler No. 1 would have shown that each sources' existing
PM limit does not reflect PM BART for the sources.
Response: In our review of the Arkansas RH SIP, we evaluated the
determination by ADEQ that no additional PM controls were required at
the AEP Flint Creek Boiler No. 1 or the Entergy White Bluff Units 1 and
2. For Flint Creek Boiler No. 1, ADEQ's determination was based on the
pre-control modeling performed by ADEQ and on AEP SWEPCO's statement
that the PM visibility modeling did not ``trip the BART impact
threshold.'' We reviewed the pre-control modeling performed by ADEQ
using the 24-hr actual maximum emissions from the baseline period. The
modeling results in Appendix 9.2B of the Arkansas RH SIP and presented
in Table 7-6 of Appendix A of the TSD,\140\ indicate that PM
contributes less than 0.5% of the total visibility impacts from Flint
Creek Boiler No. 1 at all nearby Class I areas with the exception of
Upper Buffalo. PM contributions to visibility impacts at Upper Buffalo
from Flint Creek are less than 2% of the total visibility impairment at
this Class I area. On the most impacted day at Upper Buffalo, modeling
the 24-hr actual maximum emissions demonstrates that PM contributes
only 0.07 dv of the total 3.781 dv modeled visibility impact from the
source. Clearly, the most effective controls to address visibility
impairment from the source are those that would reduce emissions of
visibility impairing pollutants other than direct emissions of PM.
---------------------------------------------------------------------------
\140\ These documents can be found in the docket associated with
our final rulemaking.
---------------------------------------------------------------------------
For White Bluff Units 1 and 2, we reviewed the data submitted by
ADEQ, including pre-control modeling in Appendix 9.2B of the Arkansas
RH SIP, to evaluate ADEQ and White Bluff's determination that the
majority of visibility-causing emissions are due to emissions of
NOX and SO2, and that no additional PM controls
are warranted. The modeling results in Appendix 9.2B of the Arkansas RH
SIP and presented in Table 7-7 of Appendix A of the TSD for our
proposed rulemaking, indicate that PM contributes less than 0.4% of the
total visibility impacts at all nearby Class I areas. On the most
impacted day at Caney Creek, modeling the 24-hr actual maximum
emissions demonstrates that PM contributes only 0.03 dv of the more
than 8 dv modeled visibility impact from the White Bluff Units 1 and 2.
Clearly, the majority of visibility-causing emissions are due to
emissions of NOX and SO2 and the most effective
controls to address visibility impairment from the units are those that
would reduce emissions of NOX and SO2 rather than
direct emissions of PM.
As explained in our proposed rulemaking, in our evaluation for PM
BART for these sources, we found that the visibility impact due to PM
emissions alone is so minimal such that any additional PM controls
could only result in very minimal visibility benefit that could not
justify the cost of any upgrades and/or operational costs needed to
operate the existing controls to achieve a more stringent emission
limit. This is in keeping with the BART Rule, which provides the
following:
``Consistent with the CAA and the implementing regulations,
States can adopt a more streamlined approach to making BART
determinations where appropriate. Although BART determinations are
based on the totality of circumstances in a given situation, such as
the distance of the source from a Class I area, the type and amount
of pollutant at issue, and the availability and cost of controls, it
is clear that in some situations, one or more factors will clearly
suggest an outcome. Thus, for example, a State need not undertake an
exhaustive analysis of a source's impact on visibility resulting
from relatively minor emissions of a pollutant where it is clear
that controls would be costly and any improvements in visibility
resulting from reductions in emissions of that pollutant would be
negligible. In a scenario, for example, where a source emits
thousands of tons of SO2 but less than one hundred tons
of NOX, the State could easily conclude that requiring
expensive controls to reduce NOX would not be
appropriate.'' \141\
---------------------------------------------------------------------------
\141\ 70 FR 39116.
Therefore, we are approving the State's determination that PM BART
for Flint Creek Boiler No. 1 and White Bluff Units 1 and 2 is the
existing PM emission limit (i.e. no additional controls).
Comment: The EPA should not partially approve the State's BART
determination for a given source for some pollutants and disapprove the
BART determination for other pollutants without also concurrently
promulgating BART requirements for the pollutants that have been
disapproved. EPA should not approve
[[Page 14636]]
the PM BART controls for the AEP Flint Creek Power Plant, the Entergy
White Bluff Power Plant, and the No. 1 Power Boiler of the Domtar
Ashdown Mill before knowing what the SO2 and NOX
BART controls will be because the SO2 or NOX
controls determined to be BART may increase PM emissions or otherwise
affect the PM BART determination.
Response: You cannot infer from the RHR that the disapproval of the
BART determination for one pollutant at a given source requires
disapproval of BART determinations for other pollutants at the same
source. Each BART analysis for an individual visibility impairing
pollutant is separate. As such, disapproval of the SO2 or
NOX BART determination does not affect the PM BART
determination even though SO2 and NOX are
precursors to PM. This is because when the BART determination is
conducted for PM, it is analyzed without taking in account whether BART
controls for SO2 or NOX are being adopted. As
such, EPA may take action on the BART determinations for
NOX, SO2, and PM for a given source in separate
rulemaking actions. In addition, EPA may approve the BART determination
for one pollutant for a given source while disapproving the BART
determination for one or more pollutants at the same source. Therefore,
EPA disagrees with the commenter that it cannot approve the PM BART
determinations for the Flint Creek Boiler No. 1, the White Bluff Units
1 and 2, and the Domtar Ashdown Mill Power Boiler No. 1, and disapprove
the SO2 and NOX BART determinations for these
sources without promulgating SO2 and NOX BART
determinations for these sources in the context of a FIP.
As explained in our proposed rulemaking and elsewhere in this final
rulemaking, our disapproval begins a two year period after which if
Arkansas has not provided a new SIP revision and EPA has approved that
SIP revision correcting the deficiencies, EPA must promulgate a FIP. If
in conducting the BART analyses for NOX and SO2,
Arkansas, or EPA in the context of a FIP, determines that direct
emissions of PM will increase because of the implementation of certain
control technologies, the BART PM limit can be re-evaluated at that
time and balanced against the potential visibility improvements from
the reductions of the other pollutants.
Comment: In the testimony for a permit proceeding, Entergy's
primary contractor for engineering and procurement of its BART controls
showed that PM emission rates much lower than 0.1 lb/MMBtu could be met
with either a wet scrubber or with a dry scrubber and a baghouse
installed at the Entergy White Bluff Units 1 and 2 (see Exhibits 12 and
16). Entergy's contractor indicated that if a dry scrubber and baghouse
were installed at White Bluff Units 1 and 2, the baghouse would be
designed to lower the PM emissions to 0.012 lb/MMBtu, giving an
advantage of the dry scrubber over the wet scrubber. Since the
selection of the SO2 scrubber (wet vs. dry) will have an
impact on the PM emissions rate that will be achievable at the White
Bluff units, EPA should not take any action on PM BART for White Bluff
until the SO2 controls to meet BART are known.
Response: The comment points out that in the testimony for a permit
proceeding before the Arkansas Public Service Commission,\142\
Entergy's contractor indicated that if a dry scrubber and baghouse are
installed at the Entergy White Bluff Units 1 and 2, the baghouse would
be designed to lower the PM emissions to an emission rate of 0.012 lb/
MMBtu.\143\ However, it has also been brought to EPA's attention that
Entergy White Bluff has since canceled the proceeding before the
Arkansas Public Service Commission to obtain a declaratory order
approving the installation of those controls. Furthermore, the State
has not submitted to EPA a revision to the RH SIP EPA received on
September 23, 2008, August 3, 2010, and supplemented on September 7,
2011. As far as EPA is aware, the State has not adopted revisions to
the Arkansas RH SIP with respect to BART for SO2 for Entergy
White Bluff Units 1 and 2 based on the proceeding before the Arkansas
Public Service Commission. Therefore, what is before EPA is the
Arkansas RH SIP submitted to EPA on September 23, 2008 August 3, 2010,
and supplemented on September 7, 2011, which does not include
installation of a dry scrubber and baghouse for control of
SO2 at White Bluff Units 1 and 2. As explained elsewhere in
our response to comments, the RHR states that the BART determinations
are made on a individual pollutant specific basis and this analysis is
separate from the BART determinations for other pollutants at the same
source. Therefore, EPA disagrees that it should not take action on PM
BART for White Bluff Units 1 and 2 until the SO2 controls to
meet BART are known.
---------------------------------------------------------------------------
\142\ The Arkansas Public Service Commission is an appointed
executive board in the Arkansas state government. The commission is
responsible for regulating the rates and services of Arkansas's
electricity, natural gas, water, phone, and pipeline safety
utilities.
\143\ See Exhibit 12 to Sierra Club's comment letter to EPA,
found in the docket for this rulemaking action.
---------------------------------------------------------------------------
Our approval of the limit for direct PM emissions was based on the
extremely low modeled visibility impact from these emissions. While
reductions in PM may occur from future controls necessary to meet
SO2 BART, these PM reductions are not necessary to meet BART
for PM.
Comment: The EPA's BART Guidelines specify that BART should be
evaluated and defined for both PM10 and PM2.5
(see 40 CFR part 51, appendix Y, section IV.A.). However, with the
exception of the oil-firing scenario for Lake Catherine Unit 4, ADEQ
did not adopt BART limits for PM2.5, yet EPA did not
identify this as a deficiency. EPA must disapprove the PM/
PM10 BART limits in the Arkansas RH SIP along with
disapproving the RH SIP for the lack of BART limits for
PM2.5.
Response: The BART Guidelines do not specify that states must make
BART determinations for PM2.5. The BART Guidelines provide
the following:
``You must look at SO2, NOX, and direct
particulate matter (PM) emissions in determining whether sources
cause or contribute to visibility impairment, including both
PM10 and PM2.5.'' \144\
---------------------------------------------------------------------------
\144\ Appendix Y to Part 51, section III.A.2.
This language in the BART Guidelines was meant to clarify that when
a state is making a BART determination as to whether a source is
subject to BART, the modeling evaluation to determine the source's
impact on visibility has to account for both PM10 and
PM2.5 emissions. There are several instances in which we
state in both the preamble to the RHR, and in the BART Guidelines that
PM10 may be used as indicator for PM2.5 in
determining whether a source is subject to BART. However, neither the
RHR nor the BART Guideline specify that states must set separate BART
limits for PM2.5. We have concluded that Arkansas's PM BART
determinations for the natural gas firing scenario for Entergy Lake
Catherine Unit 4; for the bituminous and sub-bituminous coal firing
scenarios for Entergy White Bluff Units 1 and 2; for the AEP Flint
Creek Boiler No. 1; and for the Domtar Ashdown Mill Power Boiler No. 1
are reasonable.
Comment: The existing PM limit of 0.1 lbs/MMBtu in the AEP Flint
Creek Title V permit, which EPA proposed to approve as BART for PM, is
based on EPA's New Source Performance Standards (NSPS) for Fossil-Fuel
Fired Steam Generators that commenced construction after August 17,
1971 (40 CFR part 60, subpart D, Sec. 60.42(a)(1)).
[[Page 14637]]
This PM emission limit does not apply during periods of startup,
shutdown, and malfunction (SSM) (see 40 CFR 60.8(c)); only applies to
filterable PM emissions (see 40 CFR 60.46(b)(2) and EPA Method 5 in 40
CFR part 60, appendix A); and only applies during scenarios of firing
coal and tire-derived fuel at Flint Creek (see Title V permit for Flint
Creek, Permit No. 0276-AOP-R5, at 18 (Exhibit 3)). When the unit is
firing coal with leachate injection a PM10 emission limit of
778.4 lb/hr applies, which at maximum heat input capacity equates to
0.12 lb/MMBtu. Since the Title V permit directs Flint Creek to ask EPA
for a determination regarding the applicability of NSPS Subpart D
limits for oil-firing and coal-and-oil-firing scenarios, it is not
clear whether any PM emission limit applies to Flint Creek during oil-
firing and oil-and-coal-firing. EPA recently proposed to disapprove SSM
exemptions from BART limits in the Kansas RH SIP (see 76 FR 52604,
52617-18 and section 302(k) of the CAA). Because BART must reflect the
best system of continuous emission reduction, the BART limits must
apply at all times. The existing PM limit in the Flint Creek Title V
permit cannot satisfy BART because the existing PM limit in the Flint
Creek Title V permit does not apply during SSM, and there does not
appear to be a PM limit in the Flint Creek Title V permit during oil-
firing and oil- and coal-firing. A proper BART evaluation would have
shown that these limits do not reflect BART for Flint Creek's PM
emissions.
Response: In our review of the Arkansas RH SIP, we evaluated the
determination by ADEQ that no additional PM controls are required at
the AEP Flint Creek Boiler No. 1. ADEQ's determination was based on the
pre-control modeling performed by ADEQ and on AEP SWEPCO's statement
that the PM visibility modeling did not ``trip the BART impact
threshold.'' We reviewed the pre-control modeling ADEQ performed using
the 24-hr actual maximum emissions from the baseline period. The
modeling results in Appendix 9.2B of the Arkansas RH SIP and presented
in Table 7-6 of Appendix A of the TSD\145\ indicate that PM contributes
less than 0.5% of the total visibility impacts from Flint Creek Boiler
No. 1 at all nearby Class I areas with the exception of Upper Buffalo.
PM contributions to visibility impacts at Upper Buffalo from Flint
Creek are less than 2% of the total visibility impairment at this Class
I area. On the most impacted day at Upper Buffalo, modeling the 24-hr
actual maximum emissions demonstrates that PM contributes only 0.07 dv
of the total 3.781 dv modeled visibility impact from the source.
Clearly, the most effective controls to address visibility impairment
from the source are those that would reduce emissions of visibility
impairing pollutants other than direct emissions of PM. In this action,
we are finalizing our proposal to disapprove Arkansas's NOX
and SO2 BART determinations for Flint Creek Boiler No. 1, as
ADEQ did not properly identify and evaluate NOX and
SO2 controls to address visibility impairment from the
source.
---------------------------------------------------------------------------
\145\ These documents can be found in the docket associated with
our final rulemaking.
---------------------------------------------------------------------------
As stated in our proposed rulemaking on the Arkansas RH SIP, we
found that the source's visibility impact from PM emissions alone is so
minimal such that the installation of any additional PM controls on the
source could only result in very small visibility benefit that would
not justify any upgrades to the existing controls. This is in keeping
with the BART Rule, which states the following:
``Consistent with the CAA and the implementing regulations,
States can adopt a more streamlined approach to making BART
determinations where appropriate. Although BART determinations are
based on the totality of circumstances in a given situation, such as
the distance of the source from a Class I area, the type and amount
of pollutant at issue, and the availability and cost of controls, it
is clear that in some situations, one or more factors will clearly
suggest an outcome. Thus, for example, a State need not undertake an
exhaustive analysis of a source's impact on visibility resulting
from relatively minor emissions of a pollutant where it is clear
that controls would be costly and any improvements in visibility
resulting from reductions in emissions of that pollutant would be
negligible. In a scenario, for example, where a source emits
thousands of tons of SO2 but less than one hundred tons
of NOX, the State could easily conclude that requiring
expensive controls to reduce NOX would not be
appropriate. In another situation, however, inexpensive
NOX controls might be available and a State might
reasonably conclude that NOX controls were justified as a
means to improve visibility despite the fact that the source emits
less than one hundred tons of the pollutant.'' \146\
---------------------------------------------------------------------------
\146\ 70 FR 39116.
Therefore, we agreed with the State that PM BART for Flint Creek
Boiler No. 1 is the existing PM emission limit (i.e. no additional
controls). The BART Rule provides that states may determine that for a
given source no additional control satisfies the BART requirement for a
particular pollutant.\147\ In our final approval of the Kansas RH SIP,
we approved the State's determination that no additional control (and
no new emission limit) for PM is BART for a number of sources.\148\ In
our final approval of the Oklahoma RH SIP, we also approved the State's
determination that no additional control (and no new emission limit)
for PM is BART for a number of sources.\149\ In the above cases, Kansas
and Oklahoma adopted no new PM emission limit for PM BART for
particular sources, and EPA approved this based on the low visibility
impact attributable to PM emissions. As such, it was not necessary for
Arkansas to establish a new PM emission limit for BART for Flint Creek
Boiler No. 1, as ``no additional controls'' satisfies PM BART in this
particular case. Since no additional controls satisfies BART for Flint
Creek Boiler No. 1, it is not problematic that the existing PM emission
limit that Arkansas adopted in Chapter 15 of APCEC Regulation No. 19 as
meeting PM BART for Flint Creek Boiler No. 1 (i.e. the EPA NSPS, and
also included in the Title V permit) does not apply on a continuous
basis and only applies to filterable PM emissions. We also clarify that
the distinction between our approval of an existing PM emission limit
adopted in Arkansas's Chapter 15 of APCEC Regulation No. 19 for Flint
Creek Boiler No. 1 that does not apply during SSM and our disapproval
of an exemption of SSM for BART in the Kansas RH SIP is that the BART
determinations that would have exempted SSM in the Kansas RH SIP were
not based upon the minimal visibility impact from a particular
pollutant. Therefore, we are finalizing our proposed approval of
Arkansas determination that PM BART is the existing PM emission limit
in Chapter 15 of APCEC Regulation No. 19 for Flint Creek Boiler No. 1.
---------------------------------------------------------------------------
\147\ 70 FR 39116.
\148\ 76 FR 52604 and 76 FR 80754.
\149\ 76 FR 16168 and 76 FR 81728.
---------------------------------------------------------------------------
That being said, we note that the 0.1 lb/MMBtu existing PM emission
limit (for Flint Creek Boiler No. 1) in Chapter 15 of APCEC Regulation
No. 19, which is based on EPA's NSPS standards (40 CFR part 60, subpart
D, Sec. 60.42(a)(1)), applies during the following firing scenarios:
coal firing; coal and tire derived fuel (TDF) firing; and during coal
firing with leachate injection.\150\ We are finalizing our proposed
approval of PM BART for the AEP Flint Creek Boiler No. 1.
---------------------------------------------------------------------------
\150\ See section IV, specific conditions 3.a., 8.a., and 17.b
of the ADEQ Operating Air Permit for AEP-Flint Creek Power Plant
(Permit No. 0276-AOP-R5). This permit can be viewed at http://www.adeq.state.ar.us/ftproot/pub/WebDatabases/PermitsOnline/Air/0276-AOP-R5.pdf.
---------------------------------------------------------------------------
Comment: The existing PM limit of 0.1 lbs/MMBtu in the Entergy
White
[[Page 14638]]
Bluff Title V permit, which EPA proposed to approve as BART for PM, is
based on EPA's NSPS for Fossil-Fuel Fired Steam Generators that
commenced construction after August 17, 1971 (40 CFR part 60, subpart
D, Sec. 60.42(a)(1)). This PM emission limit does not apply during SSM
(see 40 CFR 60.8(c)), and only applies to filterable PM emissions (see
40 CFR 60.46(b)(2) and EPA Method 5 in 40 CFR part 60, appendix A).
Since the Title V permit directs White Bluff to ask EPA for a
determination regarding the applicability of NSPS Subpart D limits
during fuel oil-firing and biodiesel firing during startup, shutdown
and malfunction, it is not clear whether any PM emission limit applies
to White Bluff for these scenarios. EPA recently proposed to disapprove
SSM exemptions from BART limits in the Kansas RH SIP (see 76 FR 52604,
52617-18 and section 302(k) of the CAA). Because BART must reflect the
best system of continuous emission reduction, the BART limits must
apply at all times. The existing PM limit in the White Bluff Title V
permit cannot satisfy BART because this limit does not apply during
SSM, and there does not appear to be a PM limit in the White Bluff
Title V permit during fuel oil-firing and bio-diesel firing. The
existing PM limit in the White Bluff Title V permit cannot satisfy BART
because it does not apply during all periods of operation of the unit.
Response: First, we disagree that we are approving the White Bluff
Title V permit as BART for PM. We are approving the part of the Chapter
15 of APCEC Regulation No. 19 that applies to the Entergy White Bluff
Units 1 and 2 as BART for PM. We agree that the part of the submitted
rule that applies to the two White Bluff units is based on EPA's NSPS
for Fossil-Fuel Fired Steam Generators that commenced construction
after August 17, 1971 (40 CFR part 60, subpart D, Sec. 60.42(a)(1)).
Secondly, in our review of the Arkansas RH SIP, we evaluated the
determination by ADEQ that no additional PM controls are required at
the Entergy White Bluff Units 1 and 2. We reviewed the data submitted
by ADEQ, including pre-control modeling in Appendix 9.2B of the
Arkansas RH SIP, to evaluate the State's determination that the
majority of visibility-causing emissions are due to emissions of
NOX and SO2, and that no additional PM controls
are warranted. The modeling results in Appendix 9.2B of the Arkansas RH
SIP and presented in Table 7-7 of Appendix A of the TSD, indicate that
PM contributes less than 0.4% of the total visibility impacts at all
nearby Class I areas. On the most impacted day at Caney Creek, modeling
the 24-hr actual maximum emissions, PM contributes only 0.03 dv of the
more than 8 dv modeled visibility impact from the White Bluff Units 1
and 2. Clearly, the majority of visibility-causing emissions are due to
emissions of NOX and SO2 and the most effective
controls to address visibility impairment from the units are those that
would reduce emissions of NOX and SO2 rather than
direct emissions of PM. In this action, we are finalizing our proposal
to disapprove Arkansas's NOX and SO2 BART
determinations for White Bluff Units 1 and 2, as the State did not
properly evaluate and identify controls to address visibility
impairment from these units.
As articulated in our proposed rulemaking on the Arkansas RH SIP,
we are finding that the source's visibility impact from PM emissions
alone is so minimal such that the installation of any additional PM
controls on the two units could only result in such small visibility
benefits that it could not justify any upgrades to the existing
controls. This is in keeping with the BART Rule, which states the
following:
``Consistent with the CAA and the implementing regulations,
States can adopt a more streamlined approach to making BART
determinations where appropriate. Although BART determinations are
based on the totality of circumstances in a given situation, such as
the distance of the source from a Class I area, the type and amount
of pollutant at issue, and the availability and cost of controls, it
is clear that in some situations, one or more factors will clearly
suggest an outcome. Thus, for example, a State need not undertake an
exhaustive analysis of a source's impact on visibility resulting
from relatively minor emissions of a pollutant where it is clear
that controls would be costly and any improvements in visibility
resulting from reductions in emissions of that pollutant would be
negligible. In a scenario, for example, where a source emits
thousands of tons of SO2 but less than one hundred tons
of NOX, the State could easily conclude that requiring
expensive controls to reduce NOX would not be
appropriate. In another situation, however, inexpensive
NOX controls might be available and a State might
reasonably conclude that NOX controls were justified as a
means to improve visibility despite the fact that the source emits
less than one hundred tons of the pollutant.'' \151\
---------------------------------------------------------------------------
\151\ 70 FR 39116.
Therefore, we agree with the State that PM BART for White Bluff
Units 1 and 2 is the existing PM emission limit in Chapter 15 of APCEC
Regulation No. 19 (i.e. no additional controls). The BART Rule provides
that states may determine that for a given source no additional control
satisfies the BART requirement for a particular pollutant.\152\ In such
cases, it is not necessary for a state to establish a new emission
limit when no additional control is BART. In our final approval of the
Kansas RH SIP, we approved the State's determination that no additional
control (and no new emission limit) for PM is BART for a number of
sources.\153\ In our final approval of the Oklahoma RH SIP, we also
approved the State's determination that no additional control (and no
new emission limit) for PM is BART for a number of sources.\154\ In the
above cases, Kansas and Oklahoma adopted no new PM emission limit for
PM BART for particular sources, and EPA approved this based on the low
visibility impact attributable to PM emissions. As such, it was not
necessary for Arkansas to establish a new PM emission limit for BART
for White Bluff Units 1 and 2, as ``no additional controls'' satisfies
PM BART in this particular case. As explained above, the distinction
between our approval in the Arkansas RH SIP of an existing PM emission
limit in Chapter 15 of APCEC Regulation No. 19 for White Bluff that
does not apply during SSM and our disapproval of an exemption of SSM
for BART in the Kansas RH SIP is that the BART determinations that
would have exempted SSM in the Kansas RH SIP were not based upon the
minimal visibility impact from a particular pollutant. Since no
additional controls satisfies BART for White Bluff Units 1 and 2, it is
not problematic that the existing PM emission limit that Arkansas
adopted for PM BART for Units 1 and 2 does not apply on a continuous
basis and only applies to filterable PM emissions. Therefore, we are
finalizing our proposed approval of Arkansas determination that PM BART
is the existing PM emission limit in Chapter 15 of APCEC Regulation No.
19 for White Bluff Units 1 and 2.
---------------------------------------------------------------------------
\152\ 70 FR 39116.
\153\ 76 FR 52604 and 76 FR 80754.
\154\ 76 FR 16168 and 76 FR 81728.
---------------------------------------------------------------------------
Comment: The technology available for control of the pollutant in
question is the first factor that must be evaluated in a BART analysis.
The most effective PM control technology is a fabric filter baghouse.
ESPs can achieve control efficiencies of 99% or better, and baghouses
can achieve PM control efficiencies as high as 99.9% or even higher.
Baghouses have been installed since the 1970's and are the PM control
technology of choice for new coal-fired EGUs. Several recent PSD
permits have been issued with best available control technology (BACT)
limits at 0.010 lb/
[[Page 14639]]
MMBtu, based on installation of a fabric filter baghouse. Matt Haber,
EPA Region 9's BACT expert and current Deputy Director of the Air
Division, concluded in 2002 that BACT for filterable PM at two existing
PC boilers firing Powder River Basin coal and equipped with a baghouse
was 0.006 lb/MMBtu based on a 3-hour average and monitored via EPA
Method 5 and continuously using triboelectric broken bag detectors.
Even though AEP Flint Creek and Entergy White Bluff are subject to
BART, and not BACT, after evaluating the achievable emission rates with
a new baghouse at these units, there is no reason why Flint Creek and
White Bluff could not achieve PM emission rates similar to those of a
new unit with a baghouse. Particularly since White Bluff will be
installing new baghouses at the two units. Even these BACT limits fail
to reflect the low levels of filterable PM emissions that can be
achieved with fabric filter baghouses. As early as May 2004, at least
147 performance tests measured filterable PM/PM10 at less
than 0.010 lb/MMBtu and 82 recorded PM/PM10 emissions less
than 0.005 lb/MMBtu using fabric filter baghouses. The lowest reported
PM/PM10 emission rate was 0.0004 lb/MMBtu. Other states have
made PM BART determinations that are much lower than ADEQ's proposed
limit of 0.1 lb/MMBtu, based on use of a baghouse. South Dakota adopted
and EPA recently approved a PM BART emission limit of 0.012 lb/MMBtu
for the Big Stone Power Plant, a 600 MW power plant burning Powder
River Basin coal, and with an existing baghouse. Even though Big Stone
is located 431 km from the nearest Class I area, EPA did not exempt the
plant from PM BART as EPA has proposed for Flint Creek.
Response: EPA agrees that baghouses have very high PM control
efficiency capabilities. However, as articulated in our proposed
rulemaking and further explained in our response to comments, due to
the low visibility impact from the AEP Flint Creek Boiler No. 1 and the
Entergy White Bluff Units 1 and 2 attributable to PM, we agree with
Arkansas that the existing PM emission limit adopted for these sources
in Chapter 15 of APCEC Regulation No. 19 satisfies BART for these
units. As explained elsewhere in our response to comments, this is
consistent with the BART Rule and EPA's action on other states' RH
SIPs. We are finalizing our proposed approval of the existing PM
emission limit as PM BART for the AEP Flint Creek Boiler No. 1 and
Entergy White Bluff Units 1 and 2.
With regard to the comment that White Bluff will be installing
baghouses on Units 1 and 2, EPA is aware that Entergy White Bluff has
canceled the proceeding before the Arkansas Public Service Commission
to obtain a declaratory order approving the installation of these
controls. Furthermore, as explained elsewhere in our response to other
comments, the Arkansas RH SIP that is before EPA to act on does not
include installation of a dry scrubber and baghouse for control of
SO2 and PM emissions at White Bluff Units 1 and 2.
Therefore, EPA disagrees that it should disapprove the PM BART
determination for White Bluff Units 1 and 2 because the source may be
considering installing these controls.
Comment: Coal-fired boilers with hot-side ESPs, including the
Navajo Power Plant Units, are meeting PM emission rates much lower than
0.1 lb/MMBtu. Even if EPA finds that it is acceptable to not evaluate
additional control technologies for PM10 at AEP Flint Creek,
the PM10 BART limit for Flint Creek must reflect the
technology determined to represent BART. The 0.1 lb/MMBtu PM emission
limit of Subpart D of the NSPS does not. Because the existing PM
emission limit of 0.1 lb/MMBtu is much higher than the maximum 24-hour
average PM10 levels emitted by Flint Creek, the existing
limit fails to reflect the best system of continuous emission reduction
as required by the definition of BART in 40 CFR 51.302. There will be
less incentive to properly operate and maintain the PM control
equipment if the PM BART limit is unreasonably high.
Response: As articulated in our proposed rulemaking and further
explained in earlier response to comments, due to the low visibility
impact from the AEP Flint Creek Boiler No. 1 attributable to PM, we
agree with Arkansas that the existing PM emission limit in Chapter 15
of APCEC Regulation No. 19 satisfies BART for this unit. EPA agrees
with Arkansas that requiring the source to install and operate
additional PM controls on this unit (including any upgrades to the
existing PM controls) would not be justified because of the low
visibility benefit that would result. As explained elsewhere in our
response to comments, this is consistent with the BART Rule and EPA's
action on other states' RH SIPs. We are finalizing our proposed
approval of the existing PM emission limit in as PM BART for the AEP
Flint Creek Boiler No. 1.
Comment: Even if it was determined that the existing ESPs represent
BART for the White Bluff Units 1 and 2, the existing PM emissions
limits fail to reflect BART. According to ADEQ, the maximum 24-hour
actual PM10 emission rates at White Bluff Units 1 and 2 are
much lower than the emissions allowed by the existing PM limit in the
White Bluff Title V permit. At an emission rate of 0.1 lbs/MMBtu, while
firing coal and a maximum allowable heat input capacity of 8,700 lbs/
MMBtu, the maximum pound per hour emission rate would be 879 lb/hr.
However, ADEQ modeled Entergy White Bluff's highest-24 hour actual
PM10 emission rate as 15.592 grams per second for Unit 1 and
16.653 grams per second for Unit 2, which equate to 123.7 lb/hr and
132.2 lb/hr, respectively. Assuming the highest actual PM10
emission rate occurred during the time of maximum heat input capacity,
the maximum 24-hour actual PM10 emission rate modeled
equates to 0.027 lb/MMBtu. In 2010, PM stack testing at White Bluff
Units 1 and 2 showed the units were emitting filterable PM and total PM
at rates much lower than ADEQ's PM BART limit of 0.1 lb/MMBtu, which
under Subpart D of the NSPS only applies to filterable PM (see Exhibits
14 and 15). With the installation of a scrubber and NOX
controls to meet BART, the condensable PM emissions will be even lower
than the 2010 stack testing results show. Even if EPA finds it
acceptable to not evaluate additional control technologies for PM at
White Bluff Units 1 and 2, the PM BART limit for the units must reflect
the technology determined to represent BART, which in this case it does
not. Because the existing PM emission limit of 0.1 lb/MMBtu is much
higher than the maximum 24-hour average PM10 levels emitted
by White Bluff, the existing limit fails to reflect the best system of
continuous emission reduction as required by the definition of BART in
40 CFR 51.302. There will be less incentive to properly operate and
maintain the PM control equipment if the PM BART limit is unreasonably
high.
Response: As articulated in our proposed rulemaking and further
explained in our previous response to comments, due to the low
visibility impact from the Entergy White Bluff Units 1 and 2
attributable to PM, we agree with Arkansas that the existing PM
emission limit adopted in Chapter 15 of APCEC Regulation No. 19
satisfies BART for these units. EPA agrees with Arkansas that requiring
the source to install and operate additional PM controls on these units
(including any upgrades to the existing PM controls) is not justified
based on the small visibility benefit. As explained elsewhere in our
response to comments, this is consistent with the BART Rule and EPA's
action on other states' RH
[[Page 14640]]
SIPs. We are finalizing our proposed approval of the existing PM
emission limit as PM BART for White Bluff Units 1 and 2.
Comment: Other states have made PM BART determinations that are
much lower than ADEQ's proposed limit of 0.1 lb/MMBtu for White Bluff
Units 1 and 2. South Dakota adopted and EPA recently approved a PM BART
emission limit of 0.012 lb/MMBtu for the Big Stone Power Plant, a 600
MW power plant burning Powder River Basin coal, and with an existing
baghouse. Even though Big Stone is located 431 km from the nearest
Class I area, neither South Dakota nor EPA exempt the plant from PM
BART as EPA has proposed for White Bluff. In Big Stone's case, South
Dakota and EPA are following the Federal regulations regarding BART,
which requires that sources that are subject to BART obtain BART limits
for ``each pollutant emitted by'' the BART-eligible source (see 40 CFR
51.301 and Appendix Y, section IV.A). The State of Wyoming has also
adopted PM BART determinations for several EGUs that are lower than 0.1
lb/MMBtu, including 0.042 lb/MMBtu for Naughton Unit 1; 0.054 lb/MMBtu
for Naughton Unit 2; 0.015 lb/MMBtu for Naughton Unit 3, Dave Johnson
Units 3 and 4, and Wyodak; and 0.03 lb/MMBtu for Jim Bridger Units 1-4.
Response: The EPA agrees that other states have adopted PM emission
limits more stringent than those adopted by Arkansas for PM BART.
However, as articulated in our proposed rulemaking and further
explained in our response to comments, due to the low visibility impact
from White Bluff Units 1 and 2 attributable to PM, we agree with
Arkansas that the existing PM emission limit in Chapter 15 of APCEC
Regulation No.19 satisfies BART for these units. EPA agrees with
Arkansas that requiring the source to install and operate additional PM
controls on these units (including any upgrades to the existing PM
controls) is not justified based on the small visibility benefit. Such
was not the case with regard to the visibility impact due to direct PM
emissions from the sources in other states referenced in the comment.
As explained elsewhere in our response to comments, this is consistent
with the BART Rule and EPA's action on other states' RH SIPs. We are
finalizing our proposed approval of the existing PM emission limit as
PM BART for Entergy White Bluff Units 1 and 2.
Comment: The EPA proposed to approve Entergy's determination that
PM BART for the natural gas firing scenario is the existing PM limit
for Lake Catherine Unit 4, or 45.0 lb/hr (76 FR 64204). EPA identifies
the PM emission limit as 45.0 lb/hr, but the permit identifies the
PM10 limit as 44.5 lb/hr (see Exhibit 21). EPA cannot
approve the existing PM limit as meeting BART for Lake Catherine Unit 4
for the natural gas firing scenario because Lake Catherine's Title V
permit does not include provisions to ensure the enforceability of the
PM limit. There are no requirements in the permit for testing to
determine compliance with this limit. The permit states that Condition
9, which is a requirement to install and maintain O2
monitors and to maintain a positive O2 reading when the
boilers are operating, is to be used for compliance with the
PM10 and PM limits of the permit for Lake Catherine Unit 4
(see Exhibit 21). It is not clear how this will ensure compliance with
the numerical PM10 emission limit of 44.5 lb/hr. The
provisions of Condition 9 appear to be operational standards, and if
ADEQ was relying on the O2 monitoring provision to meet BART
for PM, the State would need to show that the operational standard will
ensure equivalent results to the lb/hr emission limit assumed for BART
(see 40 CFR 51.308(e)(1)(iii)). EPA cannot justify its approval of the
unenforceable PM/PM10 limit for Lake Catherine Unit 4 based
on its statement that PM emissions are expected to be very low from
natural gas firing. Once a unit is determined to be subject to BART, it
must make a determination of BART for each pollutant emitted by the
unit.
Response: In our review of the Arkansas RH SIP, we evaluated the
determination by ADEQ that PM emissions from Entergy's Lake Catherine
Unit 4 are inherently very low when burning natural gas and that as a
result, no additional PM controls are required for the natural gas
firing scenario. We agree with the State's conclusion, based on its
modeling results, that the visibility impact of this unit from direct
PM emissions alone is minimal. We note that the modeling results
submitted by Arkansas in Appendix 9.2B of the Arkansas RH SIP indicate
that under natural gas firing conditions, NOX contributes
over 99.9% of Lake Catherine Unit 4's total visibility impacts at all
nearby Class I areas on the most impacted days. Based on the State's
modeling results, the visibility impact of this unit from direct PM
emissions alone is so minimal such that the requirement of any
additional PM controls on this unit would only achieve minimal
visibility benefit and would not be justified. It is clear that the
most effective controls to address visibility impairment from the
source during natural gas firing are those that would reduce emissions
of NOX. Given these conclusions, we proposed to find that
the State reasonably concluded that BART for PM for the natural gas
firing scenario is the existing PM emission limit for Unit 4 in Chapter
15 of APCEC Regulation No. 19. This is consistent with the BART Rule,
which states the following:
``Consistent with the CAA and the implementing regulations,
States can adopt a more streamlined approach to making BART
determinations where appropriate. Although BART determinations are
based on the totality of circumstances in a given situation, such as
the distance of the source from a Class I area, the type and amount
of pollutant at issue, and the availability and cost of controls, it
is clear that in some situations, one or more factors will clearly
suggest an outcome. Thus, for example, a State need not undertake an
exhaustive analysis of a source's impact on visibility resulting
from relatively minor emissions of a pollutant where it is clear
that controls would be costly and any improvements in visibility
resulting from reductions in emissions of that pollutant would be
negligible. In a scenario, for example, where a source emits
thousands of tons of SO2 but less than one hundred tons
of NOX, the State could easily conclude that requiring
expensive controls to reduce NOX would not be
appropriate.'' \155\
---------------------------------------------------------------------------
\155\ 70 FR 39116.
Based on our analysis of the data submitted by ADEQ in the Arkansas
RH SIP, and our agreement that PM emissions from burning natural gas
are inherently very low, we agree with the State that PM BART for Lake
Catherine Unit 4 is the existing PM emission limit in Chapter 15 of
APCEC Regulation No. 19 (i.e. no additional controls). The BART Rule
provides that states may determine that for a given source no
additional control satisfies the BART requirement for a particular
pollutant.\156\ In such cases, it is not necessary for a state to
establish a new emission limit when no additional control is BART. In
our final approval of the Kansas RH SIP, we approved the State's
determination that no additional control (and no new emission limit)
for PM is BART for a number of sources.\157\ In our final approval of
the Oklahoma RH SIP, we also approved the State's determination that no
additional control (and no new emission limit) for PM is BART for a
number of sources.\158\ In the above cases, Kansas and Oklahoma adopted
no new PM emission limit for PM BART for particular sources, and EPA
approved this based on the low visibility impact attributable to PM
emissions. Arkansas adopted the
[[Page 14641]]
existing PM emission limit from the facility's existing permit as BART
for Lake Catherine Unit 4, which is consistent with the finding that
``no additional controls'' is sufficient to satisfy PM BART in this
particular case. With regard to the commenter's concerns about the
enforceability of the limit, because of the extremely low visibility
impact of direct PM emissions from this source and the inherently low
emissions of PM from natural gas combustion, the practical
enforceability of this limit is not critical to our approval. We also
note that NOX contributes over 99.9% of Lake Catherine Unit
4's total visibility impacts at all nearby Class I areas on the most
impacted days. Therefore, we are finalizing our proposed approval of
Arkansas's determination that PM BART is the existing PM emission limit
in Chapter 15 of APCEC Regulation No. 19 for the Entergy Lake Catherine
Unit 4.
---------------------------------------------------------------------------
\156\ 70 FR 39116.
\157\ 76 FR 52604 and 76 FR 80754.
\158\ 76 FR 16168 and 76 FR 81728.
---------------------------------------------------------------------------
A review of the emissions based on AP-42 emissions factors
substantiates that the PM emissions from natural gas combustion are
inherently low. Table 1.4-2 of EPA's AP-42 Compilation of Air Pollutant
Emission Factors \159\ indicates the total PM (i.e. condensable plus
filterable PM) emission factor from combustion of natural gas is 7.6
lb/10\6\ standard cubic feet, which is equivalent to an emission rate
of 0.0074 lb/MMBtu.\160\ A unit's maximum emission rate for a given
pollutant can be calculated by using the following standard equation:
---------------------------------------------------------------------------
\159\ Compilation of Air Pollutant Emission Factors, Volume I:
Stationary Point and Area Sources, AP-42, 5th Edition, January 1995.
\160\ EPA's AP-42 emission factors are based on an average
natural gas higher heating value of 1,020 Btu/standard cubic foot.
As explained under Table 1.4-2 of EPA's AP-42 emission factors, to
convert from 1b/10\6\ standard cubic feet to lb/MMBtu, divide by
1,020. Based on this calculation, the 7.6 lb/10\6\ standard cubic
feet emission factor from combustion of natural gas is equivalent to
an emission rate of 0.0074 lb/MMBtu.
Pollutant mass emission rate (lb/hr) = Pollutant emission rate (lb/
---------------------------------------------------------------------------
MMBtu) x Unit heat input rate (MMBtu/hr)
Accordingly, Appendix 9.1A of the Arkansas RH SIP indicates that
the Lake Catherine Unit 4 has a heat input rate of 5,850 MMBtu/hr.
Based on Unit 4's heat input rate and the 0.0074 lb/MMBtu PM emission
rate from natural gas combustion, the unit's maximum mass emission rate
for PM is 43.29 lb/hr. This is actually slightly lower than the
existing PM emission limit for Entergy Lake Catherine Unit 4 as of
October 15, 2007 (i.e. 45 lb/hr).
With regard to the comment that the Entergy Whit Bluff Title V
permit identifies the PM10 limit as 44.5 lb/hr, EPA is
approving the part of Chapter 15 of APCEC Regulation No. 19 \161\ that
establishes PM BART for the natural gas firing scenario for Entergy
Lake Catherine Unit 4. The Title V permit that was in effect at the
time of the State's adoption of Chapter 15, Regulation 19, which is
Permit No. 1717-AOP-R4, required Unit 4 to meet a PM emission limit of
45 lb/hr. The Title V permit referenced by the commenter is Permit No.
1717-AOP-R5, and appears to contain revisions to several emission
limits, including the PM emission limit for Unit 4. However, EPA can
act only upon what is submitted to it by a state as a SIP revision.
Arkansas submitted Chapter 15, Regulation 19 as part of its RH SIP
revision. The State's submitted RH Rule adopts the existing PM emission
limit as of October 15, 2007 (i.e. 45 lb/hr) as the PM BART emission
limit.
---------------------------------------------------------------------------
\161\ The Arkansas RH SIP was originally submitted to EPA on
September 23, 2008. We received a revision to the RH SIP on August
3, 2010, and a supplemental submittal on September 27, 2011. The
revisions to Chapter 15 of APCEC Regulation 19 that we are referring
to were submitted to us in the August 3, 2010 RH SIP revisions.
---------------------------------------------------------------------------
The EPA is finalizing its approval of the existing PM emission
limit as meeting PM BART for Entergy Lake Catherine Unit 4 for the
natural gas firing scenario.
4. Comments on the Capacity Factor Used in the State's BART Analyses
for Entergy Lake Catherine and White Bluff
Comment: The EPA was incorrect in its assessment of Entergy's Lake
Catherine BART determination that Entergy's Lake Catherine Unit 4
assumption of a 10% capacity unit needs to be supported by an
enforceable limit. A 10% capacity factor for Catherine Unit 4 is a
conservative assumption as demonstrated by the following table:
Lake Catherine Unit 4 Annual Capacity Factor
--------------------------------------------------------------------------------------------------------------------------------------------------------
2011 (1/1-11/
2003 2004 2005 2006 2007 2008 2009 2010 31)
--------------------------------------------------------------------------------------------------------------------------------------------------------
10.4 3.2 4.2 0.5 0.7 2.7 3.0 3.1 2.5
--------------------------------------------------------------------------------------------------------------------------------------------------------
This is consistent with the BART Guidelines because the baseline
emissions rate represents a realistic depiction of anticipated annual
emissions for the source and actual emissions for existing sources
subject to BART should be based from a baseline period by the state.
The BART Guidelines provide that only if future operating parameters
differ from past practices and they have a deciding effect in the BART
determination, then these parameters need to be enforceable limits.
Consistent with the BART Guidelines, annual emissions for Entergy Lake
Catherine Unit 4 were estimated based on the continuation of past
practice of using 10% capacity for future emissions. Therefore, an
enforceable permit limitation is not required for a 10% capacity use of
Entergy Lake Catherine Unit 4.
Response: The EPA agrees that in our proposed rulemaking on the
Arkansas RH SIP we made an error in our calculation of the capacity
factor for recent years for Entergy Lake Catherine Unit 4. Based on
certain statements made in the BART analysis for Lake Catherine, to the
effect that in the future the unit was expected to be dispatched
approximately 10% of the time only, we were under the impression that
the source had factored into their cost analysis that the unit would
only be operating 10% of the time when the unit has historically
operated at considerably more than 10% of the time. Based on the
information provided by the commenter, we agree that the source has
historically operated at less than a 10% capacity factor. We also agree
that the BART Guidelines provide that for the purpose of calculating
the cost of controls, the state may calculate baseline emissions based
upon continuation of past practice.\162\
---------------------------------------------------------------------------
\162\ Appendix Y to Part 51, section IV.4.
---------------------------------------------------------------------------
However, our finding that the State did not properly document the
cost analysis for NOX controls for the fuel and gas firing
scenarios and SO2 and PM controls for the fuel oil firing
scenario for Lake Catherine Unit 4 has not changed, as the proper
documentation necessary to allow us to make an informed and proper
evaluation of the BART analysis was not included in the SIP, as the
BART Guidelines require. As explained in our proposed rulemaking, the
RH SIP includes the results of a
[[Page 14642]]
computerized model the source used to calculate the costs associated
with each NOX control technology for both the natural gas
and fuel oil firing scenarios. However, the SIP includes no detailed
breakdown of the costs. The only explanation of the computerized model
is a paragraph in Appendix 9.3B, which points out that inputs that went
into the model were based on inputs derived from the EPRI document
entitled ``Retrofit NOX Control Guidelines for Gas and Oil
Fired Boilers,'' \163\ which were further analyzed to reflect
performance expected for Lake Catherine Unit 4, as according to the
source ``each specific boiler will perform differently due to the
unique characteristics of that boiler.'' \164\ The BART Guidelines
provide that states should include documentation for any additional
information used for the cost calculations, including any information
supplied by vendors that affects your assumptions regarding purchased
equipment costs, equipment life, and other elements of the
calculation.\165\ This was not done in the Arkansas RH SIP.
---------------------------------------------------------------------------
\163\ EPRI document entitled ``Retrofit NOX Control
Guidelines for Gas and Fired Boilers,'' Version 2, June 1997.
\164\ See Appendix 9.3B of the RH SIP.
\165\ Appendix Y to Part 51, section IV.4.
---------------------------------------------------------------------------
Furthermore, as noted in our proposed rulemaking on the Arkansas RH
SIP, the State did not properly consider NOX post-combustion
controls in the BART analysis for natural gas firing and fuel oil
firing. As pointed out by another comment, the State eliminated post-
combustion controls from consideration because they were found to be
not cost-effective and the State eliminated two NOX control
options (for natural gas firing) involving a combination of combustion
controls because of their incremental cost-effectiveness. Based on the
information provided from the source's computerized model, the cost-
effectiveness of a combination of combustion controls and SNCR is
$3,378/NOX ton removed for the natural gas firing scenario
and $3,440/NOX ton removed for the fuel oil firing scenario.
This is not an unreasonably high cost-effectiveness value, and
depending on the visibility impact of these controls and the
consideration of any of the other statutory factors, the State may find
that these controls are BART. In light of Entergy Lake Catherine's pre-
control visibility impact of 6.607 dv and post-control visibility
impact of 3.671 dv at Caney Creek for the fuel oil firing scenario,
which is based on the BART controls adopted by the State in Chapter 15,
Regulation 19 (i.e. for NOX BART this consists of boiler
tuning, boiler modifications, and burners out of service), we believe
that it is possible that NOX and SO2 controls
more stringent than those adopted by the State, including post-
combustion controls, would be cost-effective and help reduce the
visibility impact of the source at Arkansas and Missouri Class I areas.
Therefore, the State should have evaluated both the cost-effectiveness
and the incremental cost-effectiveness in addition to the visibility
impact of post-combustion controls and each of the other control
options considered at each potentially affected Class I area before
eliminating any given control option. It appears that the source and
the State may have only considered the incremental cost-effectiveness
of controls in eliminating post-combustion controls and all other
controls more stringent than the controls adopted by the State for
NOX BART. The BART Guidelines provide that average cost-
effectiveness (reported by the source to be $1,701/ton NOX
removed and $3,757/ton NOX removed for the two sets of
combination of controls mentioned above for the natural gas firing
scenario), in addition to the visibility impacts at each potentially
affected Class I area, should also be taken into consideration before a
BART determination is made.
In addition, as articulated in our proposed rulemaking on the
Arkansas RH SIP, the State did not consider SO2 post-
combustion controls in the BART analysis for fuel oil firing.
Furthermore, as noted in our proposed rulemaking, the use of a wet
scrubber system that controls both SO2 and PM emissions may
prove to be cost-effective and provide for substantial visibility
improvement. As explained elsewhere in our response to comments, in
light of Entergy Lake Catherine's pre-control visibility impact of
6.607 dv and post-control visibility impact of 3.671 dv at Caney Creek
for the fuel oil firing scenario,\166\ we believe that it is possible
that NOX, SO2, and PM controls more stringent
than those adopted by the State in Chapter 15 of APCEC Regulation No.
19, including post-combustion controls, would be cost-effective and
help reduce the visibility impact of the source at Arkansas and
Missouri Class I areas.
---------------------------------------------------------------------------
\166\ See Tables 9.4f and 9.4e of the Arkansas RH SIP. The pre-
and post-control visibility impact reported is the maximum
[Delta]dv. The post-control visibility impact is the visibility
impact resulting from the BART controls adopted by the State.
---------------------------------------------------------------------------
Therefore, we are finalizing our proposed disapproval of BART for
the Entergy Lake Catherine Unit 4 for NOX for both the
natural gas and fuel oil firing scenarios, and SO2 and PM
for the fuel oil firing scenario.
Comment: The EPA was incorrect in criticizing the cost-analysis
conducted for Entergy's White Bluff Units 1 and 2 because the source
assumed 85% utilization of the units without an enforceable limit when
the EPA believes that the units are capable of utilization of 100%
capacity factor. Utilization of 85% capacity factor for these units is
a conservative assumption, as demonstrated by the following table:
White Bluff Capacity Factors
--------------------------------------------------------------------------------------------------------------------------------------------------------
2011 (1/1-11/
Unit 2003 2004 2005 2006 2007 2008 2009 2010 31)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1............................................................... 75.3 73.4 63.1 55.1 81.3 78.2 71.1 82.5 60.7
2............................................................... 58.7 74.4 63.0 74.8 54.3 71.5 74.6 65.5 71.9
--------------------------------------------------------------------------------------------------------------------------------------------------------
This is consistent with the BART Guidelines because the baseline
emissions rate represents a realistic depiction of anticipated annual
emissions for the source and actual emissions for existing sources
subject to BART should be based from a baseline period by the state.
The Guidelines provide that only if future operating parameters differ
from past practices and they have a deciding effect in the BART
determination, then these parameters need to be enforceable limits.
Consistent with the Guidelines, annual emissions from Entergy White
Bluff Units 1 and 2 were estimated based on the continuation of past
practice of using 85% capacity for future emissions. Therefore, an
enforceable permit limitation is not
[[Page 14643]]
required for an 85% capacity use of Entergy White Bluff Units 1 and 2.
Response: The EPA agrees that in our proposed rulemaking on the
Arkansas RH SIP we made an error in our calculation of the capacity
factor for recent years for Entergy White Bluff Units 1 and 2. Based on
certain statements made in the BART analysis for White Bluff, to the
effect that in the future the unit was expected to be dispatched
approximately 85% of the time only, we were under the impression that
the source had factored into their cost analysis that the unit would
only be operating 85% of the time when the unit has historically
operated at more than this. Based on the information provided the
commenter, we agree that the source has historically operated at
slightly less than an 85% capacity factor. We also agree that the BART
Guidelines provide that for the purpose of calculating the cost of
controls, the state may calculate baseline emissions based upon
continuation of past practice.\167\
---------------------------------------------------------------------------
\167\ Appendix Y to Part 51, section IV.4.
---------------------------------------------------------------------------
However, our finding that the State did not properly document the
cost analysis for NOX and SO2 controls for both
the bituminous and sub-bituminous coal firing scenarios for White Bluff
Units 1 and 2 has not changed. As articulated in our proposed
rulemaking, the proper documentation necessary to allow an informed and
proper evaluation of the BART analysis was not included in the SIP, as
the BART Guidelines require. As pointed out in another comment, the
annual cost estimates of NOX combustion controls in the BART
analysis for White Bluff Units 1 and 2 are significantly higher than
those of similar controls at comparable facilities. The State must
provide documentation of its cost calculations and a reasonably
detailed breakdown of the costs. The State must also document the
reason for any unusually high costs, which may require a higher level
of detail in cost breakdown. Furthermore, the State did not properly
consider the available controls and cost of controls because it did not
evaluate SO2 and NOX controls that can achieve
emission limits more stringent than the presumptive emission limits. As
articulated in more detail in our proposed rulemaking, some of the
control technologies evaluated by the State for SO2 are
capable of achieving a higher control efficiency than that evaluated by
the State, and there are NOX control technologies capable of
achieving a more stringent limit than the presumptive limit. Because
such controls have been found to be cost-effective at similar
facilities, the State must evaluate the costs and visibility impact of
these controls before making a BART determination. Moreover, as
articulated in our proposed rulemaking and in previous response to
comments, the RHR, BART Guidelines, and CAA require that states
consider the controls available, including the most stringent control
technology, as well as the maximum level of control achievable by each
technology.
Therefore, we are finalizing our proposed disapproval of the
NOX and SO2 BART determinations for the Entergy
White Bluff Units 1 and 2 for both the bituminous and sub-bituminous
coal firing scenarios.
5. Comments on the State's Cost Evaluations
Comment: The ``cost of compliance'' is a BART consideration factor
that should be properly left to the states and EPA cannot void a
state's cost assessment on the grounds that EPA would have used a
different analysis or would have reached a different conclusion if it
had primary jurisdiction.
Response: The EPA agrees that the BART Rule provides states with
some flexibility in how they calculate and consider costs.\168\
However, our grounds for disapproving Arkansas's NOX BART
determinations (natural gas and fuel oil firing conditions) and
SO2 BART determination (fuel oil firing conditions) for
Entergy Lake Catherine Unit 4 and the NOX and SO2
BART determinations (bituminous and sub-bituminous coal firing
conditions) for Entergy White Bluff Units 1 and 2, as articulated in
our proposal, are not based on EPA arriving at a different BART
determination. Our disapproval of the above BART determinations is
based in part on the fact that the State did not provide the proper
documentation, as required by the BART Guidelines.\169\ The BART
Guidelines provide that states must develop estimates of capital and
annual costs and document the basis for equipment cost estimates either
with data supplied by a vendor (i.e. budget estimates or bids) or by a
referenced source (such as the OAQPS Control Cost Manual).\170\ The
BART Guidelines also provide that cost estimates should be based on the
OAQPS Control Cost Manual, where possible, to maintain and improve
consistency, and that states should include documentation for any
additional information used in cost calculation. The State did not
satisfy this requirement in the above BART determinations because the
State provided no documentation, breakdown, or any sufficiently
detailed supporting information for its cost analyses. Without the
documentation, neither we nor the public have the basis to verify the
validity of either the cost estimates or Entergy's BART determination
based on the cost estimation. As pointed out in another comment, the
annual cost estimates of NOX combustion controls in the
State's BART analysis for White Bluff Units 1 and 2 are significantly
higher than those of similar controls at comparable facilities. In
summary, our disapproval for these BART determinations is based (among
other reasons) on the fact that the proper documentation necessary to
allow us to make an informed and proper evaluation of the BART analysis
was not included in the SIP, as the BART Guidelines require.
---------------------------------------------------------------------------
\168\ 70 FR 39127.
\169\ Appendix Y to Part 51, section IV.4.
\170\ Appendix Y to Part 51, section IV.4.
---------------------------------------------------------------------------
Comment: The EPA claims that Arkansas's BART determinations should
be disapproved because they rely on cost estimates that are not
adequately documented or that lack sufficiently detailed supporting
information (76 FR 64206), yet EPA fails to provide any specific
discussion in the proposed rule's preamble of the purported
shortcomings in the state's cost information and fails to describe the
type or degree of documentation it believes is mandated. In other
similar RH SIP rulemakings, EPA has described a level of cost estimate
documentation that is of such an extensive and detailed nature that it
cannot be reasonably deemed an appropriate requirement of a BART cost
assessment (76 FR 52388, 52396).
Response: The EPA disagrees that our proposed rulemaking did not
provide any specific discussion on the type or degree of documentation
needed in a state's cost evaluation. Our proposed rulemaking and the
TSD for our proposed rulemaking both specify that the basis for
equipment cost estimates should be documented either with data supplied
by an equipment vendor or by a referenced source, such as the OAQPS
Control Cost Manual. Our proposed rulemaking also specified that for
the SO2 BART analysis for fuel oil firing for Entergy Lake
Catherine Unit 4, the State should clearly indicate the quantity of
fuel oil consumption on which the State's annual cost calculation is
based. However, the BART Guidelines set specific requirements regarding
this matter. The BART Guidelines provide that states should base their
cost estimates on the OAQPS Control Cost Manual, where possible, and
that the level of detail in the Cost Control
[[Page 14644]]
Manual addresses most control technologies in sufficient detail for a
BART analysis. In general, a state should include a reasonably detailed
line by line breakdown of the cost estimates, and document the vendor
and/or referenced source. However, as explained in the BART Guidelines,
where unusual costs due to site-specific design or other conditions are
factored into the cost calculation, this should also be documented
properly. For cases involving unusual costs, such as was the case at
the San Juan Generating Station in New Mexico,\171\ which was subject
to a FIP for BART controls (which the comment references), a higher
level of detail in documentation may be necessary. Furthermore, the
State is encouraged to work with EPA to determine the appropriate level
of detail needed for any future BART analyses to be submitted to EPA as
SIP revisions.
---------------------------------------------------------------------------
\171\ 76 FR 52388.
---------------------------------------------------------------------------
Comment: The EPA found that Entergy's cost evaluation for BART for
NOX and SO2 for White Bluff Units 1 and 2 was
deficient because the company assumed 85% utilization of the two units
when they are not subject to any federally enforceable limit on
utilization, and the units are capable of 100% utilization. We agree
with EPA's concerns that by assuming 85% utilization of the White Bluff
units under the proposed NOX and SO2 BART limits,
Entergy underestimated the tons of NOX and SO2
emissions that would be reduced and overestimated the costs per ton of
pollutant removed for the combustion controls evaluated. The EPA also
found that the cost analysis is inadequate because Entergy did not take
into account the achievable emissions reductions with the control
technologies evaluated. We agree with EPA's finding that Entergy did
not adequately evaluate the cost-effectiveness of controls in the
NOX and SO2 BART analyses for White Bluff Units 1
and 2.
Response: Based on comments received during the public comment
period, it has come to our attention that we made an error in the
calculation of the capacity factors for White Bluff Units 1 and 2.
Based on the information provided, we agree that the source has
historically operated at a slightly less than 85% capacity factor. The
BART Guidelines provide that for the purpose of calculating the cost of
controls, the state may calculate baseline emissions based upon
continuation of past practice.\172\ However, our finding that the State
did not properly document the cost analysis for NOX and
SO2 controls for White Bluff Units 1 and 2 has not changed,
as the proper documentation necessary to allow us to make an informed
and proper evaluation of the BART analysis was not included in the SIP,
as the BART Guidelines require. As pointed out in another comment, the
annual cost estimates of NOX combustion controls in the BART
analysis for White Bluff Units 1 and 2 are significantly higher than
those of similar controls at comparable facilities. In addition, the
State did not properly consider the available controls and cost of
controls because it did not evaluate SO2 and NOX
controls to achieve emissions limits more stringent than the
presumptive emission limits. As articulated in more detail in our
proposed rulemaking, some of the control technologies evaluated by the
State for SO2 are capable of achieving a higher control
efficiency than that evaluated by the State, and there are
NOX control technologies capable of achieving a more
stringent limit than the presumptive limit. Because such controls have
been found to be cost-effective at similar facilities, the State must
evaluate the costs and visibility impact of these controls in making a
BART determination. Furthermore, as articulated in our proposed
rulemaking and in previous response to comments, the RHR, BART
Guidelines, and CAA require that states consider the most stringent
control technology, as well as the maximum level of control achievable
by each technology.
---------------------------------------------------------------------------
\172\ Appendix Y to Part 51, section IV.4.
---------------------------------------------------------------------------
Comment: Comparing Entergy's stated costs for SO2
controls with those found in other companies' SO2 BART
evaluations, it appears that Entergy has overstated the costs of
SO2 controls. Entergy assumes much higher cost numbers for
SO2 controls in its revised 2008 BART analysis for White
Bluff than in its 2006 BART analysis (see Exhibit 11). The
SO2 control cost numbers in Entergy's revised 2008 BART
analysis for White Bluff are much higher than the cost numbers in other
plants' SO2 BART analyses (see Exhibit 17). Even though
Entergy's revised 2008 BART analysis for White Bluff is not before EPA
for approval, these comments are being provided now in case the revised
2008 BART analysis is eventually submitted to EPA. EPA should require
that Entergy's cost-effectiveness calculations are based on the
emission reductions achievable with the controls being evaluated and
that Entergy's cost-analysis is well-documented, sound, and that the
documentation and details be made publicly available.
Response: The EPA agrees that the 2008 BART analysis for Entergy
White Bluff is not before EPA to take action on. As far as EPA is
aware, the State has not revised the RH SIP to include Entergy White
Bluff's revised analysis. As such, it is unclear whether the State
plans to submit it to EPA in the future as a SIP revision. However, we
do agree that the cost numbers in the 2008 analysis are considerably
higher than those in the 2006 BART analysis that is before EPA to take
action on. Consistent with the action we are taking on the Arkansas RH
SIP in this rulemaking, if the State submits the revised 2008 BART
analysis to EPA in the future in the context of an official RH SIP
revision, the State must provide documentation of its cost calculations
and a reasonably detailed breakdown of the costs. The State will also
have to document the reason for any unusually high costs, which may
require a higher level of detail in cost breakdown. If the State
anticipates submitting a revised BART analysis for White Bluff or any
other source to EPA as a SIP revision, EPA encourages the State to work
with us to resolve any uncertainties it may have with regard to the
level of detail needed in the cost analysis. Consistent with the action
we are taking on the Arkansas RH SIP in this rulemaking, we agree that
the State must ensure that its BART analyses evaluate the most
stringent emission limit achievable by each control considered, and
that the cost-analysis be well-documented, sound, and that the
documentation and all other relevant details are made publicly
available.
Comment: It appears that the annual cost estimates of
NOX combustion controls in Entergy's December 2006 BART
analysis for the Entergy White Bluff Units 1 and 2 are very high ($5.2
million for Unit 1 and $5.3 million for Unit 2) compared to the cost
estimates for similar controls at other coal-fired EGUs, such as those
at the Boardman Power Plant (617 MW, $3.7 million), the Four Corners
Power Plant (790 MW, $3.0 million), and the Sherburne County Power
Plant (690 MW, $2.2 million) (see Exhibit 19). Since neither Entergy
nor ADEQ have provided the specific details that went into these cost
estimates, it is difficult to discern why Entergy's cost estimates are
much higher.
Response: The EPA agrees with the comment that the cost estimates
Arkansas provided in the cost evaluation of NOX combustion
controls in the 2006 Entergy White Bluff BART analysis are considerably
higher than the cost estimates for similar controls at the other coal
fired EGUs. The EPA notes that the Entergy White Bluff Units 1 and 2
have a slightly greater generating capacity (850 MW each), but because
of the lack of detail in Entergy White Bluff's cost calculations, it is
not
[[Page 14645]]
clear what issues are attributing to the wide difference in the
annualized cost estimates. As explained in our proposed rulemaking, the
State must provide proper documentation of all cost calculations, and a
reasonably detailed breakdown in costs. In cases where the State finds
that cost of controls are unusually high, especially in comparison to
the cost of the same controls at other similar sources, the State must
provide a more detailed breakdown of costs, as provided in the BART
Guidelines.\173\
---------------------------------------------------------------------------
\173\ Appendix Y to Part 51, section IV.4.
---------------------------------------------------------------------------
Comment: The EPA was incorrect in its assessment of Entergy's Lake
Catherine Unit 4 BART determination that Entergy provided no
documentation or detailed breakdown of cost. Entergy only included the
expected capital cost and any impacts the control technology will have
on the unit heat rate in the cost estimate, which is a conservative
cost estimate of the cost of each control technology. Entergy's methods
of calculations are described in the Appendix of the Determination
Report. This approach is supported by EPA's BART Guidelines. In
addition, by incorporating the costs provided by Entergy in the RH SIP
Arkansas supports Entergy's cost analysis.
Response: The comment appears to be in contradiction with what was
documented in Arkansas's RH SIP. In Appendix 9.3B of the Arkansas RH
SIP, Entergy states that a computerized model was used to evaluate
electrical generating unit performance and the capital and operation
and maintenance cost associated with each identified control
technology. As such, the State should provide proper documentation of
the equipment costs with data supplied by an equipment vendor or by a
referenced source, and include a reasonably detailed breakdown of all
cost estimates. The Appendix to the Determination Report referenced in
the comment appears to be ``Appendix A: Cost and Emissions Estimates
for NOX and SO2 Control Options.'' \174\ This
document contains the total annual cost (with no breakdown), the cost-
effectiveness and the incremental cost-effectiveness calculated by
Entergy of the controls considered in the BART analysis, along with
formulas that were used by the source in calculating costs (i.e. total
capital requirement, levelized control cost, etc.). But the actual
calculations or numbers that went into these formulas are not included.
As explained in our response to other comments, this approach is not
supported by the BART Guidelines. We also note that the State's support
for a particular cost analysis alone is not grounds for EPA approval.
The EPA must evaluate the details of a cost analysis and determine
whether it meets the RH requirements and BART Guidelines before we can
consider it in approving or disapproving a BART determination.
---------------------------------------------------------------------------
\174\ See ``BART Analysis for Lake Catherine Plant- Unit 4,''
prepared by Robert Paine, dated December 2006 (Appendix 9.3A of the
Arkansas RH SIP).
---------------------------------------------------------------------------
Comment: Entergy demonstrated that post-combustion NOX
controls for Lake Catherine Unit 4 are not economically viable. Thus,
EPA should not have disapproved Lake Catherine Unit 4's BART
determination on the grounds that post-combustion controls were not
evaluated. ADEQ noted that in the BART analysis for Lake Catherine
facility Entergy used a computerized model that evaluated EGU
performance and the cost associated with each identified technology.
Entergy's analysis started with the most economical control technology
and then conducted a stepped approach where the next economical control
was analyzed. The analysis continued with a combination of all
identified control technologies. Entergy reported the combination of
control technologies until that combination was no longer cost
effective. This is consistent with the BART Guidelines which provide
that in the BART review, one or more of the available control options
may be eliminated from consideration if it is demonstrated to be
technically infeasible or to have unacceptable energy, cost, or non-air
quality environmental impacts on a case by case basis. The incremental
NOX control cost of $41,739/ton (option 5) and $10,101/ton
(option 4) shown in the Lake Catherine BART analysis do not pass the
cost test as described in the BART Guidelines. This is consistent with
the BART Guidelines, which provide that installation of current
combustion control technology is cost-effective and should be
considered in determining BART for oil- and gas-fired sources.
Response: As noted in our proposed rulemaking, we agree that the RH
SIP includes the results of a computerized model the source used to
calculate the costs associated with each technology. However, the SIP
includes no detailed breakdown of the costs. The only explanation of
the model is a paragraph in Appendix 9.3B, which points out that inputs
that went into the model were based on inputs derived from the EPRI
document entitled ``Retrofit NOX Control Guidelines for Gas
and Oil Fired Boilers,'' \175\ which were further analyzed to reflect
performance expected for Lake Catherine Unit 4, as ``each specific
boiler will perform differently due to the unique characteristics of
that boiler.'' \176\ The BART Guidelines provide that States should
include documentation for any additional information used for the cost
calculations, including any information supplied by vendors that
affects the assumptions regarding purchased equipment costs, equipment
life, and other elements of the calculation.\177\ We find that this
documentation was not provided by Arkansas.
---------------------------------------------------------------------------
\175\ EPRI document entitled ``Retrofit NOX Control
Guidelines for Gas and Fired Boilers,'' Version 2, June 1997.
\176\ See Appendix 9.3B of the RH SIP.
\177\ Appendix Y to Part 51, section IV.4.
---------------------------------------------------------------------------
The comment states that post-combustion controls were eliminated
from consideration because they were found to be not cost-effective.
Based on the information provided from the Entergy's computer model,
the cost-effectiveness of a combination of combustion controls and SNCR
is $3,378/NOX ton removed. Again, the issue of documentation
aside, we find that Arkansas should have evaluated the visibility
impact of this and each of the other control options considered at each
potentially affected Class I area before eliminating any given control
option. The comment also notes that some control options, including
options 4 and 5 that are each a combination of combustion controls,
were eliminated from consideration based on their incremental cost-
effectiveness. However, the BART Guidelines provide that the average
cost-effectiveness (which was reported by the source to be $1,701/ton
for option 4 and $3,757/ton for option 5), in addition to the
visibility impacts from the installation of controls at each
potentially affected Class I area, should also be taken into
consideration before a BART determination is made. Based on average
cost effectiveness, these options should not be eliminated from
consideration. As the BART Guidelines explain, cost effectiveness
cannot be assessed without an analysis of the projected visibility
benefit. This holds true even for control options evaluated on the
basis of their incremental cost effectiveness. In the preamble to the
BART Rule, in response to comments that modeling should not be included
as part of a BART review, EPA supported its decision to include
modeling by stating that CAA section 169(g)(2) clearly requires an
evaluation of the expected degree of improvement
[[Page 14646]]
in visibility from BART Controls.\178\ The BART Rule also states the
following:
---------------------------------------------------------------------------
\178\ 70 FR 39129.
``We believe that modeling, which provides model concentration
estimates that are readily converted to deciviews, is the most
efficient way to determine expected visibility improvement.'' \179\
---------------------------------------------------------------------------
\179\ 70 FR 39129.
Furthermore, in the preamble to the BART Rule, in response to
---------------------------------------------------------------------------
comments received, we stated the following:
``We agree with commenters who asserted that the method for
assessing BART controls for existing sources should consider all of
the statutory factors.'' \180\
---------------------------------------------------------------------------
\180\ 70 FR 39130.
Therefore, Arkansas must evaluate all five statutory factors before
eliminating a given control option, especially if there are no unusual
circumstances that would make it clear that a particular control option
should be eliminated before all five statutory factors are considered.
With regard to the comment that the BART Guidelines provide that
installation of current combustion control technology is cost-effective
and should be considered in determining BART for oil- and gas-fired
sources, we note the context of that statement is with regard to
whether we believed a presumptive emission limit was appropriate for
oil and gas fired EGUs.\181\ It was not intended to limit the
consideration for BART of possible post-combustion control options.
---------------------------------------------------------------------------
\181\ Appendix Y to Part 51, section IV.E.5.
---------------------------------------------------------------------------
Comment: Arkansas's failure to consider the actual costs of
compliance for its BART determination is reflected by the APCEC
rulemaking record for the Arkansas RH SIP. No actual costs of
compliance with presumptive limits for the White Bluff and Flint Creek
facilities are provided. The petition to initiate rulemaking before the
APCEC contains no information about the costs to install the required
control technology at these two plants nor does it identify or contain
any explanation of the five BART factors that the APCEC is supposed to
consider under the CAA. The financial documentation filed in support of
the petition contains no indication of the actual costs of compliance.
The documentation suggests that the financial impact of the rule to the
citizens and ratepayers of Arkansas would be zero. Thus, Arkansas
should not have adopted EPA's presumptive limits for the Entergy White
Bluff Units 1 and 2 and AEP Flint Creek Boiler 1 without first
determining whether the assumptions underlying those presumptive
emission limits, including the costs of compliance, were still valid
and reasonable.
Response: EPA notes that the APCEC is the State's rulemaking body
for environmental regulations. EPA agrees that the rulemaking record
for the Arkansas RH SIP lacks sufficient information to support the
State's BART determinations for the two facilities. As reflected in our
proposed rulemaking and in our previous response to comments, the State
should have conducted a proper evaluation of the five statutory factors
before adopting the NOX and SO2 presumptive
limits for BART for Entergy White Bluff Units 1 and 2 and Flint Creek
Boiler 1.
6. Comments on the August 2008 Revised BART Analysis for White Bluff
Comment: The EPA's evaluation of the BART submittal for Entergy
White Bluff Units 1 and 2 is based on a December 2006 BART analysis
submitted by Entergy Arkansas Inc., and included in the Arkansas RH SIP
in Appendix 9.3A. Entergy subsequently submitted a revised BART
analysis to ADEQ for White Bluff on August 8, 2008 (see Exhibit 11),
stating that this revised document should supersede the Entergy's
original December 2006 BART determination for White Bluff. It does not
appear that ADEQ ever adopted the revised BART analysis as part of the
Arkansas RH SIP, but in 2009 ADEQ did propose to issue a Title V permit
for White Bluff that proposed to incorporate the control equipment
proposed by Entergy in its revised 2008 BART analysis to meet BART.
These controls differed from the controls assumed to meet BART in
Entergy's 2006 BART analysis. Specifically, the 2006 BART analysis
proposed to install wet scrubbers to achieve the SO2
presumptive limit of 0.15 lb/MMBtu and no additional controls for PM,
while the revised 2008 BART analysis proposed to install dry scrubbers
and baghouses to meet the SO2 presumptive limit of 0.15 lb/
MMBtu and no additional controls for PM. Although ADEQ never issued the
permit it proposed in 2009, it appears that Entergy may intend to
change its planned controls to meet BART. The EPA's proposal does not
mention Entergy's revised 2008 BART analysis because it has not yet
been adopted by Arkansas as a SIP revision, and it is therefore not
before EPA to approve or disapprove. However, as EPA acts on the
Arkansas RH SIP, it must consider that Entergy may be installing a
baghouse as part of its SO2 controls. Since a baghouse is
more effective at controlling PM emissions than an ESP, EPA should not
act on the state's proposed PM BART limit until it has a complete and
approvable suite of BART controls that it is acting on or otherwise
promulgating as a FIP.
Response: The EPA agrees that the December 2006 White Bluff BART
analysis is what was included in Appendix 9.3A of the Arkansas RH SIP
received by EPA on September 23, 2008. As such, that is the BART
analysis that is before EPA to take action on. EPA does not have the
authority to take action on a SIP revision that has never been
officially submitted by the State. As the comment notes, the controls
assumed to meet BART in Entergy's 2008 revised BART analysis differ
from those in the 2006 BART analysis that was submitted to EPA as part
of the Arkansas RH SIP. However, since to the best of EPA's knowledge,
the State has never officially adopted the 2008 revised BART analysis
as a revision to the Arkansas RH SIP and since the State never issued
the permit that proposed to install the controls in the 2008 revised
BART analysis, it is not clear if the State is even considering
submitting such a revised SIP to EPA. As such, EPA can only review what
has been submitted to it by Arkansas. Therefore, we are basing our
decision upon Arkansas's submitted RH SIP and our review of comments.
As articulated in our proposed rulemaking and elsewhere in our response
to comments, we find that the current permit limit (i.e. no additional
controls) is PM BART for Entergy White Bluff Units 1 and 2 for both
bituminous and sub-bituminous coal firing scenarios.
Comment: The EPA cannot propose to disapprove the BART
determination for SO2 for the Entergy White Bluff Units 1
and 2 because the EPA did not evaluate the most recent and more
detailed BART analysis conducted for Entergy's White Bluff facility
when making its decision. The EPA's proposal references the 2006 BART
analysis as the basis for EPA's decision on Arkansas's White Bluff BART
determinations and not the 2008 revised BART analysis. The 2008 revised
BART analysis considered additional non-air quality environmental
impacts and provided a detailed BART five factor analysis. The 2008
revised BART report was evaluated by ADEQ and provided to EPA. Even
though EPA did not consider the 2008 revised BART analysis in its
proposed rulemaking, it agreed with its findings in a 2009 letter to
ADEQ staff that installation of dry scrubber technology is BART for the
White Bluff facility. The EPA's lack of consideration of the most
current and accurate BART analysis and determination for the White
Bluff facility makes EPA's
[[Page 14647]]
proposed rule regarding the White Bluff facility inaccurate and
arbitrary.
Response: The EPA notes that the December 2006 White Bluff BART
analysis is the BART analysis that was included in Appendix 9.3A of the
Arkansas RH SIP received by EPA on September 23, 2008. As such, the
December 2006 White Bluff BART analysis is what is before EPA to take
action on. The EPA does not have the authority to take action on a SIP
revision that has never been officially submitted by the State. The EPA
is aware that in a letter dated August 8, 2008, sent by Entergy to
ADEQ, the source requests that the 2008 revised BART analysis supersede
the 2006 BART analysis.\182\ The EPA notes that the CAA places the
authority and duty to submit SIPs on the states. Under the RH
regulations, it is the State who is authorized to make BART
determinations for inclusion in the RH SIP submitted to EPA. As such,
even if a source submits a revised BART analysis to the State and
requests that the revised version supersede the one currently in the RH
SIP, EPA is not authorized to take action on the revision if the State
does not adopt the revised version as a revision to the RH SIP, allow
the FLM to review the proposed RH SIP revision at least 60 days prior
to holding any public hearing, undergo reasonable notice and public
hearing, and submit the revision to EPA in the context of an official
SIP submission. This did not happen.
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\182\ Letter from Mark C. Bowles, Arkansas Environmental Support
Manager, to Mike Bates, Air Division Chief, ADEQ, dated August 8,
2008. Please see the docket for this rulemaking for a copy of this
letter.
---------------------------------------------------------------------------
While EPA did provide comments in a letter dated November 25, 2009,
to the State on the 2008 revised BART analysis for White Bluff, this
was done in the context of EPA's review of a draft Title V/Prevention
of Significant Deterioration (PSD) permit for White Bluff.\183\ Since
the draft Title V permit proposed by the State proposed to incorporate
the control equipment proposed by Entergy in the 2008 revised BART
analysis for White Bluff, the 2008 BART analysis was provided as an
attachment to the proposed permit. Our review of the draft Title V
permit did not involve a full review of the 2008 BART analysis, as we
were only reviewing that BART analysis in the context of providing
comments to the State on the draft Title V permit. In the comment
letter EPA sent to the State, we did note that we agreed that dry
scrubber technology is generally considered BART, but we also noted
that we did not agree that the SO2 emission limit proposed
by the source is reflective of the control efficiency this control
technology is capable of achieving, and that we did not agree that this
SO2 emission limit of 0.15 lb/MMBtu is BART. Our superficial
review of the 2008 revised BART analysis also revealed that many of the
same flaws we identified in our proposed rulemaking for the 2006 White
Bluff BART analysis are also found in the 2008 White Bluff analysis.
Furthermore, the draft Title V permit that proposed to incorporate the
control equipment proposed by Entergy in the 2008 revised White Bluff
BART analysis was never issued by the State.
---------------------------------------------------------------------------
\183\ Letter from Jeff Robinson, Air Permits Chief, EPA Region
6, to Tom Rheaume, Permits Branch Manager, ADEQ, dated November 25,
2009.
---------------------------------------------------------------------------
We disagree that our rulemaking regarding White Bluff Units 1 and 2
is inaccurate and arbitrary because the EPA did not rely on the 2008
revised White Bluff BART analysis, as the 2008 revised White Bluff BART
analysis is not before EPA to take action on.
7. Other Comments Related to BART
Comment: The EPA's proposed disapproval of BART for the Entergy
White Bluff auxiliary boiler is legally incorrect because the unit is
not BART eligible. The EPA disapproved ADEQ's BART determination that
BART for the White Bluff auxiliary boiler is a restriction to operate
no more than 4360 hours annually. However, the White Bluff auxiliary
boiler has only a heat input capacity of 183 MMBtu/hr, which is less
than the BART-eligible threshold of 250 MMBtu/hr. The BART Guidelines
supports this finding that units which are located at a steam electric
plant, but which themselves are not in any of the 26 BART source
categories, such as the White Bluff auxiliary boiler, should not be
considered BART-eligible. Further, the Guidelines state that for
fossil-fuel boilers more than 250 MMBtu/hour heat input, this category
includes only those boilers that are individually greater than 250
MMBtu/hour heat input.
Response: The EPA agrees that the Auxiliary Boiler (SN-05) at the
Entergy White Bluff Plant does not fall into ``Category 2'' (i.e.
fossil-fuel boilers of more than 250 million BTU/hr heat input) under
the BART Guidelines. However, as noted in our proposed rulemaking, it
does fall into ``Category 1'' (i.e. steam electric plants of more than
250 million BTU/hr heat input) under the BART Guidelines. The BART
Guidelines state the following regarding the BART eligibility of steam
electric plants of more than 250 MMBTU/hr heat input:
``Because the category refers to `plants,' we interpret this
category title to mean that boiler capacities should be aggregated
to determine whether the 250 million BTU/hr threshold is reached.
This definition includes only those plants that generate electricity
for sale.'' \184\
---------------------------------------------------------------------------
\184\ Appendix Y to Part 51, section II.A.
The BART Guidelines also provide the following example to help
states determine whether a boiler at a steam electric plant of more
than 250 MMBtu/hr heat input falls into ``Category 1'' (i.e. steam
electric plants of more than 250 million BTU/hr heat input) under the
---------------------------------------------------------------------------
BART Guidelines:
``Example: A stationary source includes a steam electric plant
with three 100 million BTU/hr boilers. Because the aggregate
capacity exceeds 250 million BTU/hr for the `plant,' these boilers
would be identified in Step 2.'' \185\
---------------------------------------------------------------------------
\185\ Appendix Y to Part 51, section II.A.
Therefore, even though the Auxiliary Boiler (SN-05) at the Entergy
White Bluff Plant is individually only 183 MMBtu/hr, since it is
located at a plant where the aggregate capacity exceeds 250 MMBtu/hr,
the Auxiliary Boiler is BART eligible and, as explained in our proposed
rulemaking, subject to BART. As such, our proposed disapproval of BART
for the auxiliary boiler is consistent with the BART Guidelines and is
legally correct. For the reasons articulated in our proposed
rulemaking, we are finalizing our proposed disapproval of BART for the
Auxiliary Boiler (SN-05) at the Entergy White Bluff plant.
Comment: The EPA has not demonstrated in its proposed partial
disapproval of Arkansas RH SIP that post-combustion controls are cost-
effective. The EPA has also not demonstrated that Arkansas's reliance
on presumptive limits without analyzing post-combustion controls abused
its authority to determine the appropriateness of the selected BART
technologies.
Response: The BART Guidelines provide that in identifying all
options, you must identify the most stringent option as well as a
reasonable set of options for analysis.\186\ The RHR also provides that
in establishing source specific BART emission limits, the State should
identify and consider in the BART analysis the maximum level of
emission reduction that has been achieved in other recent retrofits at
existing sources in the source category.\187\ The visibility
regulations define BART as ``an emission limitation based on the degree
of reduction achievable through the application of the best system of
continuous emission
[[Page 14648]]
reduction.'' Since recent retrofits at existing sources provide a good
indication of the current ``best system'' for controlling emissions,
these controls must be considered in the BART analysis. As explained in
our proposed rulemaking, post-combustion controls for NOX,
SO2, and PM have been demonstrated to be technically
feasible and cost-effective controls at fossil fuel fired EGUs that are
similar to those that are subject to BART in Arkansas. As articulated
in our proposed rulemaking (and also discussed elsewhere in our
response to comments), EPA is also aware of at least one type of
NOX post-combustion control (SNCR) that has been
demonstrated to be technically feasible for a power boiler at a kraft
pulp mill with similar design specifications as Domtar Ashdown Mill
Power Boilers No. 1 and 2. Therefore, states must consider post-
combustion controls in their BART analyses for NOX,
SO2, and PM if such controls have been recently installed as
retrofits at existing sources in the source category.
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\186\ Appendix Y to Part 51, section IV.D.
\187\ 64 FR 35740.
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Furthermore, our disapproval of some of Arkansas's BART
determinations where the State did not consider post-combustion
controls, is not based on a demonstration by EPA that post-combustion
controls are cost-effective at any of Arkansas's subject to BART
sources. Instead, it is based on our finding that some of the State's
BART analyses did not satisfy the RHR and applicable EPA guidance. We
did not perform a source specific BART analysis to determine if post-
combustion controls are cost-effective at Arkansas's subject to BART
sources nor are we required to perform such an analysis in reviewing a
SIP revision. As explained in our response to other comments and as
required by CAA section 169A(g)(2) and 40 CFR 51.308(e)(1)(ii)(A), it
is the State's responsibility to conduct a five factor BART analysis
that satisfies the RHR and BART Rule using the NOX and
SO2 presumptive emission limits as a starting point in the
BART analysis. In addition, as explained above, states must consider
post-combustion controls in their BART analyses for NOX,
SO2, and PM if such controls are technically feasible. It is
EPA's responsibility to review the adequacy of this analysis.
Comment: The EPA's proposed disapproval is inconsistent with EPA's
guidance and regulations concerning visibility protection causing
regulatory uncertainty among the EGU industry. The EPA's proposed
disapproval action should be withdrawn in favor of approval of the
Arkansas RH SIP.
Response: Because the comment is not specific about what aspect of
our proposed disapproval is believed to be inconsistent with EPA
guidance and RH regulations, it is not possible for EPA to address in
this response any specific concerns. Several similar comments raised
very specific concerns. Our responses to these can be found elsewhere
in our responses to comments. As articulated in our proposed rulemaking
and further explained in our responses to other comments, EPA's partial
approval and partial disapproval of the Arkansas RH SIP is consistent
with the CAA, the RHR, BART Rule, and EPA guidance. Since our
rulemaking is consistent with the above, we disagree that it causes
regulatory uncertainty among the EGU industry.
Comment: Arkansas's BART determinations are consistent with the
BART Guidelines and EPA should defer to the state's decision. Instead
of deferring to the state's judgment about the necessary measures to
implement BART within its borders, EPA proposed to substitute its
judgment concerning what constitutes BART and what constitutes an
acceptable LTS for making reasonable progress toward the national goal.
Response: The EPA disagrees that all of Arkansas's BART
determinations satisfy the CAA, the RHR, BART Rule, and EPA guidance.
For some BART determinations, Arkansas adopted NOX and
SO2 presumptive limits without conducting a source-specific
analysis of appropriate levels of control when those sources have the
capability of more stringent controls. This is in contradiction with
the RHR and the BART Guidelines. We have determined that Arkansas's
failure to conduct the BART analysis despite the evidence that the BART
analysis might result in adoption of a different emissions limit was
significant enough to result in BART determinations that were
unreasoned and unjustified. Accordingly, those BART determinations,
that adopted presumptive limits without conducting any additional BART
analysis when information exists that may affect the BART
determination, are not approvable. For some BART determinations,
Arkansas did not perform a full BART analysis by not considering one or
more factors it is required to consider in determining whether retrofit
control should be required. We have determined that not considering one
or more BART factors by Arkansas in its BART determinations, when it is
demonstrable that this lack of analysis could alter the BART
determination, is unreasoned and unsupportable. Thus, those BART
determinations, which lack the consideration of one or more BART
factors when it can be demonstrated that lack of consideration of the
BART factor has the potential to alter the BART determination, are not
approvable. We are also disapproving Arkansas's LTS because it does not
satisfy the requirements under 40 CFR 51.308(d)(3) by relying on BART
determinations that are inconsistent with the CAA and the RHR as
detailed in our BART disapproval actions.\188\ As explained in our
response to other comments, EPA agrees that States have broad authority
and flexibility under the RHR. Furthermore, we are not substituting our
judgment and forcing Arkansas to adopt any specific BART determination.
Rather, we are disapproving portions of Arkansas's RH SIP that address
BART, the LTS, and the RPGs because the State omitted critical analyses
and made flawed assumptions that may compromise any decisions that
arise from it. In doing so, the State did not satisfy the requirements
of the CAA, RHR, and the BART Rule. The state could submit and EPA
would approve RH SIP revisions that reached identical determinations as
the current SIP submittal if Arkansas's analyses in reaching those
determinations are consistent with the CAA, RHR, and BART Rule.
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\188\ 76 FR at 64186, at 64187.
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Comment: Because of the limited ability to combust fuel oil on a
short-term basis for the Domtar Ashdown Mill Power Boiler No.1, a
higher SO2 emission rate was proposed of 1.12 lb/MMBtu even
though the average long-term emissions are low. The EPA is incorrect in
stating that there is a mismatch between ADEQ's high BART
SO2 emission limit and the emission needs of the Domtar
Power Boiler No.1 when you take into account the actual operation of
and the fuels used by the boiler.
Response: As articulated in our proposed rulemaking, as part of its
BART analysis, the State should have conducted a fuel inventory for
Domtar Power Boiler No. 1 and investigated sources of potential sulfur
emissions. If the source believes that burning fuel oil on a relatively
long-term basis is the primary source of high SO2 emissions
from Domtar Power Boiler No. 1, the State should consider in its BART
analysis establishing a limit on the sulfur content of the fuel oil
burned at the boiler and/or lowering the limit of fuel oil usage. In
addition, if the boiler operator wishes to burn fuel oil on a long-term
basis and this is the primary source of SO2 emissions from
the boiler, the State should evaluate SO2 post-
[[Page 14649]]
combustion controls in its BART analysis. A proper BART evaluation of
SO2 controls may demonstrate that the installation and
operation of an SO2 scrubber is cost-effective and would
result in significant visibility improvement.
Comment: With regard to the evaluation of upgrades to the existing
scrubber at Domtar's Power Boiler No. 2, multiple scrubber upgrades
were considered including the addition of a spray tower and/or a third
scrubber. Preliminary estimates of capital costs for the third scrubber
exceed $10 million not taking into account the expenses of installing
the technology in a limited space. Considering Arkansas's progress
towards the overall goal of the RH program, such costs are clearly not
justified.
Response: As articulated in our proposed rulemaking, the BART
Guidelines provide that if a state determines that a source has
controls already in place that are the most stringent controls
available and that all possible improvements to any control devices
have been made, it may take a streamlined approach for the BART
analysis for this source. Since the source has an existing wet scrubber
for control of SO2 emissions, Arkansas has elected to take
this streamlined approach for Power Boiler No.2. As explained in our
proposed rulemaking, we agree that SO2 post-combustion
controls are typically the most stringent technology available for
control of SO2. However, we disagree that a BART emission
limit of 1.2 lb/MMBtu for SO2 is reflective of the most
stringent controls available. Further, the State has not provided
sufficient documentation of the upgrades considered for the existing
wet scrubber. In addition, based on the information available, it also
appears that the State has not considered all possible improvements to
the scrubber. As articulated in our proposed rulemaking, the BART
Guidelines state that there are numerous scrubber enhancements
available to upgrade the average removal efficiencies of all types of
existing scrubber systems, including increasing a scrubber system's
reliability (and conversely decreasing its downtime) by way of
optimizing operational procedures, improving maintenance practices,
adjusting scrubber chemistry, and increasing auxiliary equipment
redundancy.\189\ The BART Guidelines also provide the following
detailed list of potential scrubber upgrades that have been proven in
the industry as cost-effective means to increase overall SO2
removal of wet systems:
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\189\ Appendix Y to Part 51, section IV.E.4.
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Elimination of Bypass Reheat
Installation of Liquid Distribution Rings
Installation of Perforated Trays
Use of Organic Acid Additives
Improve or Upgrade Scrubber Auxiliary System Equipment
Redesign Spray Header or Nozzle Configuration
Based on the limited information that has been provided to EPA, it
does not appear that the State has evaluated all possible improvements
to the existing wet scrubber at Domtar Ashdown Mill Power Boiler No. 2.
Therefore, the State must either consider all possible improvements to
the existing wet scrubber (including proper documentation of these) or
conduct a full five factor BART analysis that satisfies the
requirements of the RHR and the BART Rule for Power Boiler No. 2. EPA
is finalizing our proposed disapproval of the State's SO2
BART determination for the Domtar Power Boiler No. 2.
Comment: The EPA should not question if the proposed SO2
BART limit of 1.2 lb/MMBtu represents 90% control for Domtar's Power
Boiler No. 2. The 90% control value has never been confirmed via
testing. Rather this control efficiency was estimated based on a
comparison of the actual maximum daily emissions measured via CEMS and
the uncontrolled emission rate predicted by EPA's AP-42 data. It may be
overestimated, but the percent control value is somewhat irrelevant due
to the BART limit on a lb/MMBtu basis.
Response: As articulated in our proposed rulemaking, we agree that
SO2 post-combustion controls are typically the most
stringent technology available for control of SO2. However,
we disagree that a BART emission limit of 1.2 lb/MMBtu for
SO2 is necessarily reflective of the most stringent controls
available. Since Arkansas has elected to take the streamlined approach
for the SO2 BART analysis for this source, it must ensure
that the source has controls already in place that are the most
stringent controls available and that all possible improvements to any
control devices have been made. This has not been done. Since the State
is relying on the fact that the source has the most stringent controls
in place to take a streamlined approach to the BART analysis, we
disagree that the control efficiency of the existing wet scrubber is
irrelevant. As explained elsewhere in our response to comments, the
State must either ensure it has the most stringent controls in place
and consider all possible improvements to the existing wet scrubber
(including proper documentation of these) or conduct a five factor BART
analysis that satisfies the requirements of the RHR and the BART Rule
for Domtar Power Boiler No. 2. EPA is finalizing our proposed
disapproval of the State's SO2 BART determination for
Domtar's Power Boiler No. 2.
Comment: Since EPA is proposing to partially approve and partially
disapprove portions of the Arkansas SIP, EPA should clarify that the
compliance dates are all based on the same final approval date of the
entire SIP. Compliance should be five years after final approval by
EPA.
Response: The EPA disagrees that compliance with the BART
requirements is contingent upon full approval of the entire Arkansas RH
SIP. 40 CFR 51.308(e)(iv) requires subject to BART sources to install
and operate BART as expeditiously as practicable, but in no event later
than 5 years after the approval of the implementation plan revision.
Therefore, in the event of a partial approval of the RH SIP, those
sources whose BART determinations for a particular pollutant have been
approved by EPA are required to install BART as expeditiously as
practicable, but in no event later than 5 years after the partial
approval of the BART determination. The RH regulatory language in no
way conditions the BART compliance dates on EPA's full approval of the
entire RH SIP.
Comment: Arkansas did a proper BART evaluation for Entergy Lake
Catherine Unit 4 and White Bluff Units 1 and 2 when it adopted the
presumptive limits. Arkansas did the BART five factor analyses, which
is consistent with the BART Guidelines. EPA's proposed disapproval of
Arkansas's NOX and SO2 BART determinations for
Entergy's White Bluff and Lake Catherine facilities is based on EPA's
incorrect evaluation of Arkansas's BART analyses and prioritizes EPA's
disagreements with Arkansas concerning available technologies and the
associated costs of compliance over the visibility protection program's
fundamental purpose of remedying visibility impairment by 2064, which
the Arkansas's RH SIP achieves. The EPA's disapproval for Arkansas's
BART determinations for Entergy Lake Catherine and White Bluff
facilities is a disagreement with the results of the BART determination
as to the appropriate level of control for the Lake Catherine and White
Bluff facilities. Accordingly, EPA should withdraw its proposed partial
disapproval and approve the existing Arkansas RH SIP.
[[Page 14650]]
Response: As explained in our proposed rulemaking,\190\ we disagree
that Arkansas did a proper five factor BART evaluation for
NOX and SO2 BART when it adopted the presumptive
limits for White Bluff Units 1 and 2, and we also disagree that
Arkansas did a proper five factor BART evaluation for NOX
BART (natural gas and fuel oil firing) and SO2 and PM BART
(fuel oil firing) for Lake Catherine Unit 4. We do note that in our
proposed rulemaking on the Arkansas RH SIP, we proposed to find that
Arkansas did not appropriately consider the costs of controls when they
assumed a 10% capacity factor for Lake Catherine Unit 4 and an 85%
capacity factor for White Bluff Units 1 and 2. Based on comments
received during the public comment period, we have found that we made
an error in proposed rulemaking in our calculation of the historical
capacity factors for these units. We agree that assuming a 10% capacity
factor for Lake Catherine and an 85% capacity factor for White Bluff
Units 1 and 2 in the calculation of emissions reductions achieved and
cost of controls is appropriate and in accordance with the BART
Guidelines (see our response to similar comments for a more detailed
explanation).
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\190\ EPA notes that in our proposed rulemaking on the Arkansas
RH SIP, we proposed to find that Arkansas did not appropriately
consider the costs of controls when they assumed a 10% capacity
factor for Lake Catherine Unit 4 and an 85% capacity factor for
White Bluff Units 1 and 2. Based on comments received during the
public comment period, we have found that we made an error in
proposed rulemaking in our calculation of the historical capacity
factors for these units. We agree that assuming a 10% capacity
factor for Lake Catherine and an 85% capacity factor for White Bluff
Units 1 and 2 in the calculation of emissions reductions achieved
and cost of controls is appropriate and in accordance with the BART
Guidelines (see our response to other comments in our response to
comments for a more detailed explanation). However, we still find
that Arkansas did not appropriately consider a number of factors (as
articulated in our proposed rulemaking and explained elsewhere in
our response to comments) in its five factor BART analysis for
NOX BART (natural gas and fuel oil firing), and
SO2 and PM (fuel oil firing) BART for Lake Catherine Unit
4, and for NOX and SO2 BART (bituminous and
sub-bituminous coal firing) for White Bluff Units 1 and 2.
Therefore, we are finalizing our disapproval of BART for the
aforementioned pollutants and units.
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However, we still find that Arkansas did not appropriately consider
a number of factors (as articulated in our proposed rulemaking and
explained elsewhere in our response to comments) in its five-factor
BART analysis for NOX BART (natural gas and fuel oil
firing), and SO2 and PM (fuel oil firing) BART for Lake
Catherine Unit 4, and for NOX and SO2 BART
(bituminous and sub-bituminous coal firing) for White Bluff Units 1 and
2. The State's BART analyses for Lake Catherine Unit 4 and White Bluff
Units 1 and 2 for the aforementioned pollutants do not satisfy all the
requirements of the RHR and BART Guidelines. As such, our disapproval
of the BART determinations for Lake Catherine Unit 4 and White Bluff
Units 1 and 2 is not based on our disagreement with the results of the
BART determination as to the appropriate level of control for the Lake
Catherine and White Bluff facilities. Instead, our disapproval is based
on our finding that Arkansas's BART analyses for these units and
pollutants do not satisfy all the requirements of the RHR and BART
Guidelines. The State omitted critical analyses and made flawed
assumptions that compromise the resulting BART determinations. As such,
until a proper five-factor BART analysis is conducted for these
pollutants that satisfies all the statutory and regulatory RH
requirements and adheres to the applicable guidelines, it will not be
possible to know whether the level of control adopted by the State or a
different level of control is BART for these units and pollutants. The
state could submit and EPA would approve RH SIP revisions that reached
identical determinations as the current SIP submittal if Arkansas's
analysis in reaching those determinations is consistent with the RHR
and applicable EPA Guidance. As explained elsewhere in our response to
comments, even if the CENRAP's modeling shows that the State is
expected to meet the URP for the first implementation period ending in
2018 and is projected to meet the natural visibility goal by 2064 if
the same level of visibility improvement expected to take place during
the first implementation is achieved for every remaining implementation
period, the State of Arkansas has not satisfied all its BART
requirements. We are finalizing our disapproval of BART for
NOX (natural gas firing and fuel oil firing) and
SO2 and PM (fuel oil firing) for Lake Catherine Unit 4 and
BART for NOX and SO2 (bituminous and sub-
bituminous coal firing) for White Bluff Units 1 and 2.
Comment: It appears that EPA agrees with the State's approach of
developing BART determinations for each fuel-burning scenario for
subject to BART units that are permitted to burn more than one type of
fuel. Setting separate, individual BART limits for each fuel type that
a source is physically capable of burning and permitted to burn is a
generally reasonable approach to addressing multi-fuel units. Other
approaches may also be reasonable if chosen by the State, so long as
they do not amount to a redefinition of the source, as would occur if
use of a particular fuel-type, otherwise permitted, were prohibited or
made infeasible as a result of the imposition of a BART limit.
Response: The EPA generally agrees with the State's approach of
developing BART determinations for each fuel burning scenario for
subject to BART sources that are permitted to burn more than one type
of fuel, as was done for Entergy Lake Catherine Unit 4 and Entergy
White Bluff Units 1 and 2. There is nothing in the RHR or the BART
Guidelines prohibiting a State from doing so. Although the BART
Guidelines provide that we do not consider BART as a requirement to
redesign the source when considering available control
alternatives,\191\ we do note that if a State considers it appropriate,
it may consider a fuel switch (i.e. switch from burning fuel oil to
natural gas), which does not necessarily constitute a redesign of the
source, as one of the options in the BART analysis for a particular
source. This was done by the State of Kansas, which determined that a
switch from fuel oil to natural gas satisfied the BART requirements for
SO2 and NOX for Westar Energy Gordon Evans Unit 2
(the unit can burn both fuel oil and natural gas).\192\ The EPA
approved Kansas' aforementioned BART determination.
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\191\ Appendix Y to Part 51, section IV.D.1.
\192\ 76 FR 52604 and 76 FR 80754.
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Comment: As stated by EPA in its proposed action on the Arkansas RH
SIP, neither AEP nor ADEQ performed a five-factor BART analysis for
Flint Creek Boiler No. 1 (76 FR 64203). The company commented that
since it was proposing to meet the presumptive BART limits for
SO2 and NOX, it did not need to undertake a five-
factor BART analysis. This does not constitute a proper BART analysis,
and EPA was right in proposing disapproval of Arkansas's SO2
and NOX BART requirements for Flint Creek. The presumptive
limits in EPA's BART Guidelines do not exempt a source from a five-
factor BART analysis. If ADEQ or AEP-SWEPCO had performed a five-factor
analysis for Flint Creek, the BART limits would likely have been lower
than 0.15 lbs/MMBtu for SO2 and 0.23 lbs/MMBtu for
NOX.
Response: As explained elsewhere in this final rulemaking, we are
finalizing our proposed disapproval of BART for NOX and
SO2 for Flint Creek Boiler No. 1 because the State did not
conduct a five factor BART analysis for the source.
Comment: The SO2 and NOX emission limits for
Flint Creek Boiler No. 1 do not reflect the best system of continuous
[[Page 14651]]
SO2 and NOX emission reduction and EPA cannot
find that these emission limits satisfy the legal BART requirements
without a five-factor BART analysis. The proposed SO2 BART
limit of 0.15 lbs/MMBtu for Flint Creek reflects only 67% removal from
the uncontrolled 2010 average annual SO2 emission rate of
0.46 lbs/MMBtu. The best system of continuous SO2 emission
reductions is a wet scrubber, which can achieve 95-99% removal. The
next best system of continuous SO2 emissions reductions is a
dry scrubber, which can achieve 90-95% SO2 removal. EPA
recently proposed and finalized as a FIP the installation of dry
scrubbers as BART at six coal-fired EGUs in Oklahoma to achieve the
SO2 BART emission limit of 0.6 lbs/MMBtu on a 30-day rolling
average basis. The Oklahoma units are all similar to Flint Creek in
size and coal type. This provides evidence that had a proper five
factor BART analysis been done for Flint Creek, the SO2 BART
limit would have been lower than 0.15 lb/MMBtu. Similarly, a five-
factor analysis for NOX at Flint Creek would have required
the evaluation of SCR and SNCR, which can achieve NOX
emission limits lower than 0.23 lbs/MMBtu. If SCR had been evaluated as
BART for NOX, emissions would have been 78% lower, providing
significant benefits to the State's Class I areas. NOX BART
emission limits as low as 0.5 lb/MMBtu have been promulgated (76 FR
52390, 52439).
Response: The EPA agrees that we cannot approve the State's BART
determinations for SO2 and NOX for Flint Creek
Boiler No. 1 because the State adopted presumptive limits as meeting
BART for the source without conducting a BART five-factor analysis. The
EPA also believes that a proper evaluation of the five statutory
factors is likely to demonstrate that emission limits lower than the
NOX and SO2 presumptive emission limits are BART
for Flint Creek Boiler No. 1. We are finalizing our proposed
disapproval of the State's BART determinations for SO2 and
NOX for Flint Creek Boiler No. 1.
With regard to the comment that a wet scrubber is the ``best system
of continuous emissions reductions'' for SO2 and a dry
scrubber is the next ``best system of continuous emissions reductions''
for SO2, we note that 40 CFR 51.308(e)(1)(ii)(B) directs
States to identify the ``best system of continuous emissions control
technology'' taking into account ``the technology available, the costs
of compliance, the energy and non-air quality environmental impacts of
compliance, any pollution control equipment in use at the source, and
the remaining useful life of the source.'' Therefore, while we agree
that a wet scrubber and a dry scrubber are generally the two most
stringent control technologies available for control of SO2
emissions and have been found to be BART for many sources, we disagree
that a wet scrubber or a dry scrubber will necessarily be BART in every
case.
Comment: The EPA's proposal is correct that the White Bluff BART
analyses for SO2 and NOX in the Arkansas RH SIP
are incomplete and inadequate because the company only evaluated
options to comply with the presumptive BART limits rather than
evaluating emission limits reflective of the best system of continuous
emission reduction at White Bluff Units 1 and 2. In Entergy's 2006 BART
analysis, which is part of the Arkansas RH SIP, the company did not
explain why it proposed a 0.15 lb/MMBtu SO2 emission limit
for either a wet scrubber or a dry scrubber, when the higher control
efficiency associated with a wet scrubber would result in the ability
to meet a lower SO2 emission limit. Also, the proposed
SO2 BART limit of 0.15 lb/MMBtu only reflects approximately
80% control from the base case SO2 emission rates, and not
the 95% and 92% control efficiency capable of being achieved by a wet
and dry scrubber, respectively. Entergy's 2006 BART analysis did note
that the resulting SO2 emission limit from either control
technology would ``depend on the future coal sulfur content'' (see
Appendix 9.3 of Arkansas RH SIP). Entergy's revised 2008 BART analysis,
which has not been adopted by Arkansas or submitted to EPA as a RH SIP
revision, elaborated on this, explaining that 2 lb/MMBtu SO2
is assumed as the highest coal sulfur content for dry scrubbing and 3
lb/MMBtu is assumed for wet scrubbing. Taking into account Entergy's
projected future coal sulfur content (which varies depending on the
control technology used) and Entergy's claimed percent removal
efficiencies for the control technologies considered, the resulting
emission limit just happens to equal EPA's presumptive BART limit for
SO2 of 0.15 lb/MMBtu. White Bluff is not authorized to burn
coal of unlimited sulfur or ash content, and the higher uncontrolled
coal sulfur content that Entergy assumed in its December 2006 BART
analysis (as well as in its revised 2008 BART analysis) is prohibited
from being utilized at the White Bluff units under the terms of the
White Bluff permit. It would be virtually impossible for White Bluff to
comply with Permit Condition IV.6 in its Title V permit and burn coal
with uncontrolled SO2 emissions at the inlet to the scrubber
of 2 lb/MMBtu, much less 3 lb/MMBtu. The future uncontrolled
SO2 emission rate must not be raised above the level of
uncontrolled SO2 emissions/coal sulfur content authorized by
the White Bluff permit and EPA must make clear that the assumed
uncontrolled SO2 emission rate cannot be improperly inflated
in proposing a BART emission limitation. EPA has commented on the BART
determinations of the Wisconsin Department of Natural Resources as well
as other states that BART cannot be based on characteristics of coal
that might be burned in the future (see Exhibit 18). Instead, it is to
be based on the fuel characteristics during the base case. If Entergy
plans to burn higher sulfur coal in the future as compared to that
utilized in the base case, that must be made clear in the BART analysis
because sulfur content of coal should be considered in determining
whether it is most beneficial to install a wet scrubber or a dry
scrubber.
Response: The EPA agrees that in its SO2 BART analysis
for White Bluff Units 1 and 2, the State did not explain why it
proposed a 0.15 lb/MMBtu SO2 emission limit for either a wet
scrubber or a dry scrubber, when the higher control efficiency
associated with a wet scrubber would result in the ability to meet a
lower SO2 emission limit. EPA also agrees that the State's
proposed SO2 BART limit of 0.15 lb/MMBtu only reflects
approximately 80% control from the base case SO2 emission
rates, and not the 95% and 92% control efficiency capable of being
achieved in many cases by a wet and dry scrubber, respectively. EPA
also agrees that the BART Guidelines provide that BART must be based on
the fuel characteristics during the base case. If a source projects
that future operating parameters (i.e. limited hours of operation or
capacity utilization, type of fuel, raw materials or product mix or
type) will differ from past practice, resulting in greater (or less)
emissions, the State must make this clear in the BART evaluation, as it
may have an impact on the cost analysis and the ultimate selection of
BART. Since the State did not properly document the cost of the
SO2 control options considered in the BART analysis
(including a reasonably detailed line by line breakdown of costs), we
were not able to determine if the parameters assumed in the State's
cost analysis for White Bluff Units 1 and 2 are reflective of the base
case. As explained elsewhere in this final rulemaking, we are
finalizing our proposed disapproval of SO2 BART for
[[Page 14652]]
Entergy White Bluff Units 1 and 2 for both the bituminous and sub-
bituminous coal firing scenarios.
Comment: The EPA's proposed disapproval of the SO2,
NOX, and PM BART determinations for fuel oil firing for
Entergy Lake Catherine Unit 4 is correct because Entergy's BART
analyses for the fuel oil firing scenario are inadequate. Neither
Entergy nor ADEQ considered and evaluated post-combustion controls for
the fuel oil firing scenario, and Entergy improperly assumed only a 10%
capacity factor in the cost-effectiveness calculations, even though the
unit's capacity factor is not limited by any enforceable requirement.
The EPA is also correct in not allowing the unit to be exempt from BART
for the fuel oil firing scenario until the Lake Catherine permit is
revised to prohibit Unit 4 from burning fuel oil.
Response: The EPA agrees that the State did not evaluate any
SO2 post-combustion controls and did not properly evaluate
NOX post-combustion controls for Entergy Lake Catherine Unit
4 for the fuel oil firing scenario.
Based on comments received during the public comment period, it has
come to our attention that we made an error in our calculation of the
capacity factor for recent years for Lake Catherine Unit 4. Based on
the information provided, we agree that the source has historically
operated at less than a 10% capacity factor. The BART Guidelines
provide that for the purpose of calculating the cost of controls, the
State may calculate baseline emissions based upon continuation of past
practice.\193\ However, as explained in more detail in our response to
other comments and in our proposed rulemaking, we find that the State
did not properly document the cost analysis for NOX,
SO2, and PM controls for fuel oil firing for Entergy Lake
Catherine Unit 4 because the proper documentation necessary to allow us
to make an informed and proper evaluation of the BART analysis was not
included in the SIP, as the BART Guidelines require.
---------------------------------------------------------------------------
\193\ Appendix Y to Part 51, section IV.4.
---------------------------------------------------------------------------
Therefore, we are finalizing our proposed disapproval of BART for
NOX for both the natural gas and fuel oil firing scenarios,
and SO2 and PM for the fuel oil firing scenario.
Comment: The EPA's proposed disapproval of Arkansas's BART
determinations for SO2, NOX, and PM for AECC's
Bailey Unit 1 and McClellan Unit 1 is correct. ADEQ must comply with
the requirement that once a unit is determined to be subject to BART, a
BART determination must be made for all pollutants emitted by the
source (see 40 CFR part 51, Sec. 51.301 and Appendix Y, section IV.A).
EPA must also disapprove the PM BART requirements because there was no
determination of BART for PM2.5.
Response: While we are finalizing our proposed disapproval of the
State's BART determinations for SO2, NOX, and PM
for AECC's Bailey Unit 1 and McClellan Unit 1, we disagree that we must
disapprove the PM BART determination because the State did not make a
BART determination for PM2.5. The BART Guidelines do not
specify that States must establish a BART limit for both
PM10 and PM2.5. The BART Guidelines provide the
following:
``You must look at SO2, NOX, and direct
particulate matter (PM) emissions in determining whether sources cause
or contribute to visibility impairment, including both PM10
and PM2.5.'' \194\
---------------------------------------------------------------------------
\194\ Appendix Y to Part 51, section III.A.2.
---------------------------------------------------------------------------
This language in the BART Guidelines was intended to clarify to
States that when determining whether a source is subject to BART, the
modeling evaluation to determine the source's impact on visibility has
to account for both PM10 and PM2.5 emissions.
There are several instances in which we state in both the preamble to
the RHR, and in the BART Guidelines that PM10 may be used as
indicator for PM2.5 in determining whether a source is
subject to BART. Neither the RHR nor the BART Guidelines specify that
States must make separate BART determinations for PM10 and
PM2.5. Therefore, we disagree that we must disapprove the PM
BART determination for AECC's Bailey Unit 1 and McClellan Unit 1 on the
basis that a BART determination for PM2.5 was not made.
Comment: The EPA's proposed disapproval of the SO2 and
NOX BART determinations for the Domtar Power Boilers No. 1
and 2 the EPA's proposed disapproval of the PM BART determination for
Domtar Power Boiler No. 2 are correct for the reasons given by EPA in
its proposed rulemaking (76 FR 64207-210).
Response: Consistent with the comment, we are finalizing our
proposed disapproval of the State's SO2 and NOX
BART determinations for the Domtar Power Boilers No. 1 and 2 and the
State's PM BART determination for Domtar Power Boiler No. 2
Comment: There is significant interest in the application of
appropriate BART requirements for the Flint Creek Power Plant, the
White Bluff Steam Electric Station, the AECC Carl E. Bailey Generating
Station, and the AECC John L. McClellan Generating Station. It is
critical to ensure that ratepayers are not burdened by improper and/or
unnecessary requirements. EPA's proposed rule will impose unnecessary
and/or improper costs and requirements on these and other Arkansas
facilities. ADEQ's original RH SIP submission fully met the
requirements of the CAA and its implementing regulations.
Response: We disagree that our final action will impose unnecessary
and improper requirements on Arkansas's subject to BART sources. In
fact, for the BART determinations we are disapproving, we are not
imposing or requiring a specific BART emission limit or cost. As
explained elsewhere in our response to comments, our partial
disapproval of Arkansas's RH SIP is a proper exercise of our authority
under the CAA. Our role is to review the RH SIP submittal and determine
if the state met the applicable statutory and regulatory requirements.
When reviewing state SIPs, we must consider not only whether the State
considered the appropriate factors in making decisions but also whether
it acted reasonably in doing so. Some of Arkansas's BART determinations
for its subject to BART sources, among other portions of the RH SIP,
were not developed in accordance with the RHR and the BART Guidelines,
as discussed in our proposed rulemaking and elsewhere in this final
rulemaking. We are not imposing additional requirements beyond what the
RHR and the BART Guidelines require. Therefore, we disagree that our
proposed rulemaking, as finalized in this rulemaking, imposes
unnecessary requirements on Arkansas's subject to BART sources.
Comment: Since limiting the sulfur content of fuel oil to 1.0% by
weight at the Bailey Unit 1 and McClellan Unit 1 is cost-effective and
post-control modeling predicted that visibility impacts to Class I
areas would be below the 0.5 dv contribution threshold, this control
option was selected as BART. It is unnecessary to perform additional
analyses for lower sulfur fuel oil for Bailey Unit 1 and McClellan Unit
1.
Response: While we agree that limiting the sulfur content of fuel
oil to 1.0% by weight at the AECC Bailey Unit 1 and McClellan Unit 1 is
extremely cost-effective ($54.90/ton SO2 removed for Bailey
Unit 1 and $158.60/ton SO2 removed for McClellan Unit1), we
find that it is very likely that other options that would result in
greater visibility improvement may also be found to be cost effective.
According to the Arkansas RH SIP, the post-control modeling
demonstrates that with the SO2 BART controls selected by the
State for AECC Bailey Unit 1, the visibility
[[Page 14653]]
impact would be 0.897 dv at Caney Creek, 0.574 dv at Upper Buffalo,
0.809 dv at Hercules Glades, and 0.766 dv at Mingo.\195\ According to
the Arkansas RH SIP, the post-control modeling demonstrates that with
the SO2 BART controls selected by the State for AECC
McClellan Unit 1, the visibility impact would be 1.011 at Caney Creek
and 0.487 dv at Upper Buffalo.\196\ We note this constitutes
approximately a 50% improvement in visibility across all areas. As
such, if Arkansas conducts a proper five factor BART analysis that
considers all five statutory factors and evaluates more stringent
controls, such as a 0.5% or lower limit for the sulfur content of fuel
oil used, Arkansas may find one or more of these more stringent
controls to be cost-effective and result in even more visibility
improvement than that resulting from the control option it selected. As
explained in our proposed rulemaking, the visibility regulations define
BART as ``an emission limitation based on the degree of reduction
achievable through the application of the best system of continuous
emission reduction.'' Since recent retrofits at existing sources
provide a good indication of the current ``best system'' for
controlling emissions, these controls must be considered in the BART
analysis. The BART Guidelines provide that in identifying all options,
States must identify the most stringent option (i.e. maximum level of
control each technology is capable of achieving) as well a reasonable
set of options for analysis.\197\ The RHR states that in establishing
source specific BART emission limits, the State should identify and
consider in the BART analysis the maximum level of emission reduction
that has been achieved in other recent retrofits at existing sources in
the source category.\198\ Fuel oil with a sulfur content of 0.5% by
weight or less is being utilized in industry. In considering use of
fuel oil with low sulfur content as a control option in the BART
analysis, AECC did not identify and consider the maximum level of
control achievable from the use of low sulfur fuel oil, and therefore,
did not satisfy the RHR requirements.
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\195\ See Table 9.4b of the Arkansas RH SIP. Note that the pre
and post control visibility impact shown on Table 9.4b is the
modeled maximum visibility impact at each affected Class I area. As
explained in our proposed rulemaking, the original meteorological
databases generated by CENRAP did not include observations as EPA
guidance recommends. Therefore, in their evaluation to determine if
a source exceeds the 0.5 dv contribution threshold at nearby Class I
areas, states used the 1st high values (i.e. maximum value) of
modeled visibility impacts instead of the 8th high values (i.e. 98th
percentile value). The use of the 1st high modeled values was agreed
to by EPA, representatives of the Federal Land Managers, and CENRAP
stakeholders.
\196\ See Table 9.4c of the Arkansas RH SIP. Note that that the
pre and post control visibility impact shown on Table 9.4c is the
modeled maximum visibility impact at each affected Class I area.
\197\ Appendix Y to Part 51, section IV.
\198\ 64 FR 35740.
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In addition, as pointed out in the TSD for our proposed rulemaking
on the Arkansas RH SIP, even though the State's cost analysis showed
that wet scrubbers are cost-effective ($2,108.25/ton SO2
removed and $1,658.32/ton SO2 removed), Arkansas did not
evaluate the visibility impact of this control option. As explained in
more detail elsewhere in our response to comments, the BART Guidelines
require a State to evaluate all five statutory factors before
eliminating a particular control option for BART.\199\ As articulated
in our proposed rulemaking on the Arkansas RH SIP, the State must
perform a cost analysis in which all cost estimates are properly
documented and must evaluate the visibility impacts of all technically
feasible control options considered before making a BART determination.
This was not done in Arkansas's SO2 BART analysis for the
AECC Bailey Unit 1 and McClellan Unit 1. As such, the BART analysis for
SO2 for AECC Bailey Unit 1 and McClellan Unit 1 does not
satisfy the RHR and CAA requirements.
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\199\ 70 FR 39130 and 39131.
---------------------------------------------------------------------------
Therefore, we believe that it is necessary for Arkansas to perform
additional analyses to evaluate the cost and visibility impact of using
lower sulfur fuel oil at Bailey Unit 1 and McClellan Unit 1. It must
also evaluate the visibility impact of wet scrubbers and any other
control options considered in the BART analysis before making a BART
determination.
Comment: The results of the initial BART modeling performed in
2006, which was cumulative modeling of SO2, NOX,
and PM, indicated that both the AECC Bailey Unit 1 and McClellan Unit 1
cause visibility impacts at one or more Class I areas. Pollutant-
specific modeling was then performed and the results of the pollutant-
specific modeling for NOX were all less than 0.5 dv,
demonstrating that NOX neither caused nor contributed to
visibility impacts. For this reason, a NOX engineering
analysis was unnecessary and not performed. The EPA previously had an
opportunity to comment on this issue about two years prior to ADEQ
submitting its draft SIP to EPA, when ADEQ forwarded a question to EPA
in an email dated October 19, 2006, asking whether or not five factor
analyses were required for NOX and PM since both pollutants
showed no impacts. No response to the question was ever received by
ADEQ from EPA.
Response: While we regret any kind of miscommunication or lapse of
communication that may have occurred between us and Arkansas, we note
that it is ultimately the State's duty to make sure that its RH SIP
satisfies all the regulatory and statutory requirements and is
consistent with all applicable EPA guidance. As explained elsewhere in
our response to comments, the pollutant-specific analysis approach for
NOX and SO2 used to evaluate controls at these
AECC units does not take into consideration the chemical interaction
between these two pollutants and ammonia present in the atmosphere. A
reduction in sulfate emissions, while most likely reducing visibility
impairment overall, can result in an increase in visibility impairment
from nitrate due to the increase in ammonia available to react with
nitrate to form visibility impairing aerosol. The pre-control modeling
results indicate that nitrate is a significant contributor to
visibility impairment on some days and this contribution can increase
under conditions of decreased SO2 emissions. Therefore,
NOX and SO2 emissions should be modeled together
and emission control technologies should be evaluated for both
pollutants. We are finalizing our proposed disapproval of the State's
NOX, SO2, and PM BART determinations of the AECC
Bailey Unit 1 and McClellan Unit 1.
Comment: We do not agree with EPA's proposed approval of no BART
determination for SO2 for the gas-firing scenario for
Entergy Lake Catherine Unit 4 (76 FR 64203-204). Once a source is
determined to be subject to BART, a BART determination must be made for
all pollutants emitted by the source (see 40 CFR part 51, Sec. 51.301
and appendix Y, section IV.A). Since the unit emits some SO2
when firing gas, it must be subject to a BART limit. EPA cannot exempt
the unit from an SO2 BART analysis when firing natural gas
just because SO2 emissions are considered to be low when
combusting such fuel. A BART analysis may show that the SO2
limit currently in the Lake Catherine Title V permit satisfies BART,
but that will not be known until a BART analysis is done.
Response: In our review of the Arkansas RH SIP, we evaluated the
determination by ADEQ that SO2 emissions when burning
natural gas are very low and that no additional SO2 controls
are required at Entergy Lake Catherine Unit 4. Furthermore, the
modeling results submitted by Arkansas in Appendix 9.2B of the Arkansas
RH SIP indicate that under natural gas firing
[[Page 14654]]
conditions, NOX contributes over 99.9% of Lake Catherine
Unit 4's total visibility impacts at all nearby Class I areas on the
most impacted days. Based on the State's modeling results, the
visibility impact of this unit from SO2 emissions alone is
so minimal such that any requirement for additional SO2
controls on this unit would have virtually no visibility benefit. It is
clear that the most effective controls to address visibility impairment
from the source during natural gas firing are those that would reduce
emissions of NOX. Therefore, in our proposed rulemaking, we
agreed that it was appropriate for the State to not establish an
SO2 BART emission limit (i.e. no additional controls) for
the natural gas firing scenario. This is consistent with the BART Rule,
which states the following:
``Consistent with the CAA and the implementing regulations, States
can adopt a more streamlined approach to making BART determinations
where appropriate. Although BART determinations are based on the
totality of circumstances in a given situation, such as the distance of
the source from a Class I area, the type and amount of pollutant at
issue, and the availability and cost of controls, it is clear that in
some situations, one or more factors will clearly suggest an outcome.
Thus, for example, a State need not undertake an exhaustive analysis of
a source's impact on visibility resulting from relatively minor
emissions of a pollutant where it is clear that controls would be
costly and any improvements in visibility resulting from reductions in
emissions of that pollutant would be negligible. In a scenario, for
example, where a source emits thousands of tons of SO2 but
less than one hundred tons of NOX, the State could easily
conclude that requiring expensive controls to reduce NOX
would not be appropriate.'' \200\
---------------------------------------------------------------------------
\200\ 70 FR 39116.
---------------------------------------------------------------------------
Based on our analysis of the data submitted by ADEQ in the Arkansas
RH SIP, and our agreement that SO2 emissions from burning
natural gas are very low, we proposed to find that it is appropriate
for the State to establish no additional control for SO2
BART. The BART Rule provides that states may determine that for a given
source no additional control satisfies the BART requirement for a
particular pollutant.\201\ In such cases, it is not necessary for a
state to establish an emission limit when no additional control is
BART. For example, in our final approval of the Kansas RH SIP, we
approved the State's determination that no additional control (and no
new BART emission limit) for PM is BART for a number of sources.\202\
In our final approval of the Oklahoma RH SIP, we also approved the
State's determination that no additional control (and no new BART
emission limit) for PM is BART for a number of sources.\203\ In the
above cases, Kansas and Oklahoma adopted no new PM emission limit for
PM BART, and we approved this based on the sources' low visibility
impact attributable to PM emissions. As such, our proposed approval of
Arkansas's determination that no additional controls for SO2
for the natural gas firing scenario satisfies SO2 BART for
Lake Catherine Unit 4 is consistent with the BART Rule and consistent
with our action on the RH SIPs of other states.
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\201\ 70 FR 39116.
\202\ 76 FR 52604 and 76 FR 80754.
\203\ 76 FR 16168 and 76 FR 81728.
---------------------------------------------------------------------------
D. Comments on the Arkansas Pollution Control and Ecology Commission
Variance for Subject to BART
Comment: The EPA cannot approve any of the BART determinations
because each of the BART determinations is premised by Arkansas to
implement only 5 years after EPA fully approves the entire RH SIP.
Arkansas's enforceability of BART requirements are codified in Chapter
15 of Regulation No. 19 and modified in March 2010. Since EPA has not
yet proposed full approval of the Arkansas RH SIP, EPA's partial
approval of some pollutant-specific BART requirements in Regulation No.
19 for some of Arkansas's subject to BART sources will not meet the
requirements of 40 CFR 51.308(e)(iv). Also, the APCEC variance does not
account for the possibility that EPA may impose a partial FIP for RH in
Arkansas, and thus, under the variance, the backstop BART compliance
deadline will be delayed indefinitely.
Response: We do not believe that the 2008 submitted Chapter 15 of
APCEC Regulation No. 19 and its subsequent modification submitted to us
on August 3, 2010, creates an enforceability timeframe less stringent
than that required under 40 CFR 51.308(e)(iv). We do not read that the
partial approval of Arkansas BART determination means that the
enforceability timeframe is 5 years from the full approval of the AR RH
SIP. Section 110(k)(3) of the amended Act addresses the situation in
which an entire submittal, or a separable portion of a submittal, meets
all applicable requirements of the Act. In the case where a separable
portion of the submittal meets all the applicable requirements, partial
approval may be used to approve that part of the submittal and
disapprove the remainder. Since the portions of the RH SIP submittal we
are approving are separable from the portions we are disapproving as
explained above, each approved BART determination for a particular
pollutant for a given source will have an enforceable date of 5 years
from the date of EPA's approval. If Arkansas fails to submit a revised
RH SIP that is approvable for the severable BART determinations we are
disapproving today, we will promulgate a FIP for the disapproved BART
determinations; in that case, the compliance deadline will be no later
than 5 years from the date of the FIP promulgation.
As explained in our proposed rulemaking and as pointed out in
another comment, the APCEC variance granted to Arkansas's subject to
BART sources on March 26, 2010, will require compliance with BART
requirements ``as expeditiously as practicable but in no event later
than five (5) years after EPA approval of the Arkansas Regional Haze
SIP.'' \204\ As explained in our response to that comment, we agree
that the APCEC variance was never submitted to EPA as a revision to the
SIP. The operative rule before us is Chapter 15 of Regulation No. 19
(i.e. the State RH Rule), which requires compliance with BART either
six years after the effective date of the State's regulation or five
years after EPA approval of the Arkansas RH SIP, whichever is
first.\205\ Although we believe this timeframe is consistent with the
requirements under 40 CFR 51.308(e)(iv), because of the variance
granted to all Arkansas subject to BART sources, the State of Arkansas
no longer has the legal authority to enforce compliance within the
timeframe required by Chapter 15 of APCEC Regulation No. 19, which is
before us to act upon. Specifically, Arkansas no longer has the
authority to enforce compliance with BART within six years after the
effective date of its regulation. 40 CFR 51.230 requires that a state
must show it has the legal authority to enforce a rule that is
submitted as part of the SIP. Therefore, we are disapproving the
portion of the BART compliance provision found in the 2008 submitted
Chapter 15 of APCEC Regulation No. 19 that requires compliance with
BART requirements no later than six years after the effective date of
the State's regulation. For
[[Page 14655]]
purposes of our action on the RH SIP submissions, we are partially
approving and partially disapproving the portion of the BART compliance
provision in Chapter 15 of APCEC Regulation No. 19, that requires each
Arkansas subject to BART source to install and operate BART as
expeditiously as practicable, but in no event later than five years
after EPA approval of the Arkansas RH SIP, such that our disapproval is
of those portions of the regulation that correspond to portions of the
Arkansas RH SIP we are disapproving. We find that this is consistent
with the requirements under 40 CFR 51.308(e)(iv). Arkansas's inclusion
of the compliance provision that would require Arkansas subject to BART
sources to install and operate BART no later than six years after the
effective date of the State's regulation (if such date takes place
before five years from EPA approval of the Arkansas RH SIP) is not a
required element of the Regional Haze SIPs to be developed and
submitted by States pursuant to section 169 of the CAA. Therefore, we
are finalizing our approval of the BART determinations for which we
proposed approval.
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\204\ A copy of the March 26, 2010, APCEC Minute Order granting
all Arkansas subject to BART sources a variance from the compliance
deadline imposed by the State's RH Rule can be found in the docket
associated with this rulemaking.
\205\ The State's BART compliance requirements are found at Reg.
19.1504(B).
---------------------------------------------------------------------------
Comment: Arkansas has not submitted the APCEC variance to EPA as
part of the Arkansas RH SIP. The version of APCEC Regulation No. 19
that EPA is proposing to approve requires compliance with BART emission
limitations no later ``than 6 years after the effective date of
[Chapter 15 of APCEC Regulation No. 19] or five years after EPA
approval of the Arkansas Regional Haze State Implementation Plan * *
*'' (see APCEC Reg. 19.1504(B) in EPA-R06-OAR-2008-0727-0004).
Compliance with BART under the version of APCEC Reg. 19.1504(B) that
has been submitted to EPA is required by October 15, 2013, yet ADEQ
will have no authority to enforce compliance with the deadline that
will be in effect under the version of APCEC Regulation No. 19 being
proposed for approval by EPA. EPA's proposed partial approval would be
of a rule that ADEQ has no authority to enforce. Given that States are
required to have legal authority to enforce the requirements of the SIP
(see 40 CFR 51.230(b)), EPA cannot legally approve the BART compliance
deadline in APCEC Reg. 19.1504(B) until Arkansas properly revises its
SIP to address the terms of the variance and submits it to EPA for
approval. EPA seemingly ignores the fact that the variance was not
adopted by the State as a SIP revision, was not submitted to EPA as a
SIP revision, and is not being acted on by EPA in this proposed
rulemaking action. Further, the APCEC variance allows for BART
compliance deadlines less stringent than the BART compliance deadlines
of 40 CFR 51.308(e)(iv) of the Federal RH regulations because under the
variance, compliance would not be required until 5 years from EPA's
full approval of the Arkansas RH SIP. Therefore, EPA cannot approve any
of the BART determinations in the Arkansas RH SIP.
Response: As stated in our proposal, Chapter 15 of APCEC Regulation
No. 19, was submitted by ADEQ on September 23, 2008, as part of the RH
SIP submittal. The 2008 submitted Chapter 15 of Regulation No. 19
requires each subject to BART source to install and operate BART as
expeditiously as practicable, but in no event later than six years
after the effective date of Arkansas's Chapter 15 of APCEC Regulation
No. 19 or five years after approval of the SIP or plan revision by EPA,
whichever comes first. ADEQ did revise APCEC Regulation No. 19,
including Chapter 15, and submitted these changes to EPA in 2010 but
this revised submittal did not include revisions to the provision for
BART compliance timeframe. We agree with the comment that the APCEC
variance that requires BART compliance as expeditiously as practicable
but in no event later than five years after our approval of the
Arkansas RH SIP has never been submitted to us as a revision to the
SIP. We do not believe, however, this means we cannot finalize the
approval of the BART determinations for which we proposed approval. We
agree that because of the APCEC variance, Arkansas no longer has the
authority to enforce compliance with BART within six years after the
effective date of the State's regulation. 40 CFR 51.230 requires that a
state must show it has the legal authority to enforce a rule that is
submitted as part of the SIP. Therefore we are disapproving the portion
of the BART compliance provision found in the 2008 submitted Chapter 15
of Regulation No. 19 that requires compliance with BART requirements no
later than six years after the effective date of the State's
regulation. For purposes of our action on the RH SIP submissions, we
are partially approving and partially disapproving the portion of the
BART compliance provision that requires each Arkansas subject to BART
source to install and operate BART as expeditiously as practicable, but
in no event later than five years after our approval of the Arkansas RH
SIP. We find that this is consistent with the requirements under 40 CFR
51.308(e)(iv). Arkansas's inclusion of the compliance provision that
would require Arkansas subject to BART sources to install and operate
BART no later than six years after the effective date of the State's
regulation (if such date takes place before five years from EPA
approval of the Arkansas RH SIP) is not a required element of the
Regional Haze SIPs to be developed and submitted by States pursuant to
section 169 of the CAA. We also note that with the exception of the PM
BART determination for the Domtar Ashdown Mill Power Boiler No. 1, our
partial approval of the State's BART determinations is based on a
finding that no additional control is required. Therefore the
compliance date is not relevant for RH purposes since no additional
controls would be expected for these sources.
Our actions approving some BART determinations and disapproving
some BART determinations for Arkansas sources are severable. We can
approve some of the rules and disapprove the rest as long as the rules
that are disapproved do not affect those that are approved. This is the
case in our partial approval and partial disapproval action, in which
we are disapproving the severable BART determinations for some of the
units and approving the severable BART determinations for some of the
units in Arkansas's RH SIP. Since the portions of the RH SIP submittal
we are approving are severable from the portions we are disapproving as
explained above, each approved BART determination for a particular
pollutant for a given source will have an enforceability of 5 years
from the date of EPA's approval. If EPA cannot approve a revised RH SIP
for the severable BART determinations EPA is disapproving today before
the end of the 2 year FIP clock, EPA will promulgate a FIP for the
severable BART determinations EPA is disapproving today. In that case,
the compliance deadline will be as expeditious as practicable, but no
later than 5 years from the date of the FIP promulgation. Therefore,
EPA disagrees that compliance is required no later 5 years from EPA's
full approval of the entire Arkansas RH SIP.
Comment: Under the Federal RH regulations, compliance with BART is
required ``as expeditiously as practicable,'' and in no event later
than five years after approval of the SIP (see 40 CFR 51.308(e)(iv),
and 42 U.S.C. 7491(b)(2)(A)). However, all parties seem to ignore this
regulatory requirement. Considering this regulatory requirement and the
significant delay in
[[Page 14656]]
getting an approved RH SIP or FIP in place for Arkansas, EPA must
consider tighter deadlines for BART compliance.
Response: It is our role to determine if the State SIP submittal
meets the requirements of the CAA. Only in the context of a FIP are we
in a position to make our own determination about the appropriate
compliance deadline. It is our expectation that the State will correct
the deficiencies in the SIP and submit a revised plan that we can
approve before the expiration of the mandatory FIP clock for the
portions of the SIP we are disapproving in this final rulemaking
action. However, if this does not occur and we are forced to promulgate
a FIP, we will consider at such time what the appropriate compliance
deadline is in light of the final BART determination.
E. Comments on BART and the Forthcoming MACT Requirements
Comment: Flint Creek Boiler No. 1 and White Bluff Units 1 and 2
will be subject to EPA's forthcoming EGU MACT requirements, and the
BART Guidelines provide that MACT requirements should be taken into
account in determining BART (see 40 CFR part 51, appendix Y, section
IV.C). The EPA has proposed a total PM limit for existing EGUs of 0.03
lb/MMBtu, as a surrogate limit for non-mercury metal hazardous air
pollutants (HAPs) (see 76 FR 24975). EPA should not approve the lax PM
limit of 0.1 lb/MMBtu for Flint Creek Boiler No. 1 and Entergy White
Bluff Units 1 and 2 as meeting BART for PM because that emission limit
is much less stringent than the forthcoming PM MACT requirement. Recent
stack testing for White Bluff Units 1 and 2 show that the units will
not be able to meet EPA's proposed mercury MACT limit for existing
units of 1.2 lb/MMBtu. It is likely that both Flint Creek Boiler No. 1
and White Bluff Units 1 and 2 will need to install baghouses to meet
EPA's mercury MACT limit for existing EGUs. It is well known that coal-
fired boilers equipped with baghouses achieve better control of mercury
than those equipped with ESPs. Activated carbon, a sorbent which
adsorbs mercury, is typically much more effective when a baghouse is
used compared to an ESP. According to EPA, the form of mercury most
easily removed is HgCl2 and the formation of this compound
depends on how much chlorine is in the coal--the lower the chlorine
content of the coal, the less HgCl2 is formed. EGUs that
burn low chlorine coal, such as Flint Creek, often achieve better
control of mercury via existing SO2 scrubbers and PM
controls. A fabric filter baghouse provides additional opportunities
for mercury removal compared to a particle scrubber or a dry ESP.
Response: We would like to clarify that the section of the BART
Guidelines the comment refers to was not meant to require States to
take into account MACT requirements in determining BART, but rather to
provide States with the option to streamline the BART analysis for
sources subject to the MACT standards by relying on the MACT standards
for purposes of BART.\206\ We received the originally submitted
Arkansas RH SIP on September 23, 2008 and a revision on August 3, 2010,
while EPA proposed the National Emission Standards for Hazardous Air
Pollutants from Coal- and Oil-fired Electric Utility Steam Generating
Units (EGU MACT Rule) on March 16, 2011.\207\ The EPA issued the EGU
MACT final rule on December 16, 2011.\208\ As such, it would be
unreasonable for EPA, when taking action on states' RH SIPs, to
consider EGU MACT standards proposed years after a state submitted its
RH SIP. This would potentially create an endless review loop for States
as new MACT standards are issued by EPA. In addition, the limits in the
MACT standards are established by EPA for reasons that are much
different than the reasons for the limits established in Regional Haze
SIPs. Our approval of limits on direct PM emissions in Arkansas for RH
purposes is based on minimal contribution to visibility impairment at
Class I areas and is in no way related to the reasons a lower emission
limit was established under section 112 of the Act. Therefore, EPA
disagrees that it should disapprove the PM BART limit of 0.1 lb/MMBtu
adopted by the State for Flint Creek Boiler No. 1 and White Bluff Units
1 and 2 because it is much less stringent than the PM emission limit in
the EGU MACT Rule recently promulgated by EPA or because the sources
may need to install baghouses to meet the mercury emission limit for
existing EGUs in EPA's EGU MACT Rule. EPA expects that these sources
will have to comply with these limits under the EGU MACT standard as
well.
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\206\ Appendix Y to Part 51, section IV.C.
\207\ 76 FR 25091.
\208\ See http://www.epa.gov/ttn/atw/utility/utilitypg.html for
a copy of the signed final rule.
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Comment: The EPA's reason for proposing to approve a limit of 0.07
lb/MMBtu and a wet ESP as PM BART for Domtar Power Boiler No. 1 is
based on an outdated 2004 Boiler MACT PM standard of 0.07 lb/MMBtu and
because according to EPA, the BART Guidelines provide that unless there
are new technologies subsequent to the MACT standards which would lead
to cost-effective increases in the level of control, sources may rely
on the MACT standards for purposes of BART (76 FR 64207). EPA's
proposed approval ignores the fact that the 2004 MACT PM standard upon
which the Domtar Power Boiler No. 1 BART determination is based was
vacated and remanded and that EPA subsequently promulgated revised
boiler MACT standards in 2011 which were more stringent. The new 2011
standards require existing solid fuel-fired boilers like Domtar's Power
Boiler No. 1 to meet a PM emission limit of 0.039 lb/MMBtu on a 30-day
rolling average, which is 44% lower than the vacated 2004 0.07 lb/MMBtu
PM MACT limit (76 FR 15608, 15689 at Table 2). Even though EPA has
delayed the effective date of the new 2011 Boiler MACT rule until
completion of reconsideration of the rule and recently reissued a
reconsideration proposal, there is no legitimate legal basis in the
applicable regulations for exempting sources from a five-factor BART
analysis based on their meeting an outdated and formally vacated PM
MACT standard as reflecting BART when that MACT standard has been
replaced with a more stringent proposed MACT standard. EPA should
disapprove the PM BART determination for Power Boiler No. 1 either
because it is less stringent than required by the MACT standards for PM
currently being proposed by EPA or because there was no five-factor
evaluation for BART for PM.
Response: The EPA acknowledges that on June 8, 2007, the United
States Court of Appeals for the District of Columbia Circuit vacated
and remanded the national emission standards for hazardous air
pollutants for new and existing industrial/commercial/institutional
boilers and process heaters (i.e. the 2004 Boiler MACT Rule)
promulgated by EPA on September 13, 2004. However, it should be noted
that the effective date of this vacatur was July 30, 2007, which was
after the close of the public notice and comment period for Arkansas's
proposed RH Rule, which codifies all the BART determinations made by
the State. On March 21, 2011, the EPA issued a final rule to regulate
emissions of hazardous air pollutants (HAPs) from industrial,
commercial, and institutional boilers and process heaters located at
major sources of HAP emissions (i.e. the ``Major Source Boiler MACT,''
or Boiler MACT Rule). As noted in the comment, the Major Source Boiler
MACT Rule established a PM emission limit of 0.039 lb/MMBtu on a 30-day
rolling average
[[Page 14657]]
that applies to existing boilers designed to burn solid fuel, such as
the Domtar Ashdown Mill Power Boiler No. 1. However, EPA promulgated
the Major Source Boiler MACT Rule years after the end of the State's
public notice and comment period and years after the date of Arkansas's
submission to EPA of the RH SIP. As such, it would be unreasonable to
disapprove the State's PM BART determination for Domtar on the basis
that it is less stringent than the emission limit in the Major Source
Boiler MACT Rule issued by EPA on March 21, 2011. Furthermore, on May
18, 2011, EPA published a final rule delaying the effective date for
the Major Source Boiler MACT Rule until the proceedings for judicial
review of the rule is completed or the EPA completes its
reconsideration of the rule, whichever is earlier.\209\ And on December
2, 2011, EPA issued a proposed rule for reconsideration of the final
Major Source Boiler MACT Rule.\210\ The proposed rule for
reconsideration and the uncertainty surrounding the Major Source Boiler
MACT Rule is another reason why it is unreasonable for EPA to
disapprove the State's PM BART determination for Domtar on the basis
that it is less stringent than the emission limit in the 2011 Major
Source Boiler MACT Rule.
---------------------------------------------------------------------------
\209\ 76 FR 28662.
\210\ 76 FR 80598.
---------------------------------------------------------------------------
With regard to the comment that EPA should disapprove the State's
PM BART determination for Domtar Power Boiler No. 1 because there was
no five-factor evaluation for BART for PM, EPA holds that the State did
not conduct a BART analysis for PM for Domtar Power Boiler No. 1
because at the time of the State's analysis, it was relying on the MACT
standards for purposes of BART. Furthermore, the comment disregards the
reason why the BART Guidelines provide that States could take a
streamlined BART approach for sources subject to MACT standards. The
BART Guidelines provide the following:
``Any source subject to MACT standards must meet a level that is as
stringent as the best controlled 12 percent of sources in the
industry * * * We believe that, in many cases, it will be unlikely
that States will identify emission controls more stringent than the
MACT standards without identifying control options that would cost
many thousands of dollars per ton.'' \211\
---------------------------------------------------------------------------
\211\ Appendix Y to Part 51, section IV.C.
Accordingly, the reason why the BART Guidelines anticipated that
states could streamline their analysis by relying on the MACT standards
for purposes of BART is because EPA believes that such controls are
among the most stringent available and that emission controls more
stringent than this are very likely not cost-effective. Notwithstanding
the court's vacatur of the 2004 Boiler MACT Rule, at the time Arkansas
performed its analysis and adopted the 0.07 lb/MMBtu emission limit for
PM BART for the Domtar Ashdown Mill Power Boiler No. 1 based on the
2004 Boiler MACT PM standard, the emissions controls reflected by that
PM standard were among the most stringent controls available at that
time and emission controls more stringent than this were at that time
likely not cost-effective for purposes of addressing visibility.
Therefore, EPA disagrees that we should disapprove the PM BART
determination for the Domtar Ashdown Mill Power Boiler No. 1.
F. Comments on Modeling
Comment: ADEQ conducted pre-control CALPUFF modeling to show that
PM10 and PM2.5 emissions from AEP Flint Creek No.
1 Boiler have minimal visibility impacts. The EPA utilized modeling
results to exempt White Bluff Units 1 and 2 from a PM BART analysis,
while ADEQ and Entergy exempted the units from a PM BART analysis based
on their belief that most of the visibility-causing emissions from
Units 1 and 2 are due to SO2 and NOX while
PM10 emissions are well-controlled with existing
electrostatic precipitators (ESPs). The existing PM emission limit of
0.1 lbs/MMBtu, which ADEQ adopted as BART for PM, fails to reflect the
best system of continuous particulate matter reduction at the White
Bluff units, especially if Entergy is considering the installation of a
dry scrubber and baghouse at each White Bluff unit to meet BART.
In addition, the impact threshold used in this analysis is
problematic because it is likely that ADEQ applied a 0.5 dv threshold,
although the discussion in the Arkansas RH SIP on the modeling is
limited or not present. Given the number of sources impacting
visibility at Class I areas, a 0.5 dv threshold is not appropriate for
one visibility impairing pollutant. The RHR and BART Guidelines do not
provide for exempting a source from BART for one visibility impairing
pollutant. A BART determination must be made for each pollutant and EPA
cannot exempt Flint Creek Boiler No. 1 and White Bluff Units 1 and 2
from a BART analysis for PM based on modeling that shows that PM
visibility impacts do not trip the BART impact threshold.
Furthermore, the PM modeling used to exempt the source from a PM
BART determination utilized an emission rate much lower than the
proposed BART limit. The pre-control modeling for Flint Creek included
the 24-hr actual maximum emissions rate, which is 70% lower than the
proposed BART limit of 0.1 lbs/MMBtu. ADEQ modeled White Bluff Unit 1's
highest 24-hour actual PM10 emission rate of 15.592 grams
per second and White Bluff Unit 2's highest 24-hour actual
PM10 emission rate of 16.653 grams per second in determining
whether the plant's emissions were subject to BART, which is 85% lower
than the proposed BART limit of 0.1 lbs/MMBtu. The emission limits in
the April 2007 ENVIRON Report titled ``Cumulative Modeling of Subject
to Best Available Retrofit Technology (BART) Facilities as a
Requirement of ADEQ's BART Modeling Protocol'' (Appendix 9.2D of the
Arkansas RH SIP) are even lower than those used in the pre-control
modeling.
Response: In our review of the Arkansas RH SIP, we evaluated the
determination by ADEQ that no additional PM controls are required for
the AEP Flint Creek Boiler No. 1 and the Entergy White Bluff Units 1
and 2. In the case of Flint Creek, ADEQ's determination was based on
the pre-control modeling performed by ADEQ and a review of AEP SWEPCO's
statement that the PM visibility modeling did not ``trip the BART
impact threshold.'' We reviewed the pre-control modeling preformed
using the 24-hr actual maximum emissions from the baseline period. The
modeling results in Appendix 9.2B of the AR RH SIP and presented in
Table 7-6 of Appendix A of the TSD,\212\ indicate that PM contributes
less than 0.5% of the total visibility impacts from Flint Creek Boiler
No. 1 at all nearby Class I areas with the exception of Upper Buffalo.
PM contributions to visibility impacts at Upper Buffalo from Flint
Creek are less than 2% of the total visibility impairment at this Class
I area. On the most impacted day at Upper Buffalo, modeling the 24-hr
actual maximum emissions, PM contributes only 0.07 dv of the total
3.781 dv modeled visibility impact from the source. Clearly, the most
effective controls to address visibility impairment from the source are
those that would reduce emissions of visibility impairing pollutants
other than direct emissions of PM.
---------------------------------------------------------------------------
\212\ These documents can be found in the docket for our
rulemaking.
---------------------------------------------------------------------------
For Entergy White Bluff units 1 and 2, we reviewed the data
submitted by ADEQ, including pre-control modeling in Appendix 9.2B of
the Arkansas RH SIP, to evaluate ADEQ and White Bluff's determination
that the majority of visibility-causing emissions are due to
[[Page 14658]]
emissions of NOX and SO2, and that no additional
PM controls are warranted. The modeling results in Appendix 9.2B of the
Arkansas RH SIP and presented in Table 7-7 of Appendix A of the TSD,
indicate that PM contributes less than 0.4% of the total visibility
impacts at all nearby Class I areas. On the most impacted day at Caney
Creek, modeling the 24-hr actual maximum emissions, PM contributes only
0.03 dv of the more than 8 dv modeled visibility impact from the White
Bluff Units 1 and 2. Clearly, the majority of visibility-causing
emissions are due to emissions of NOX and SO2 and
the most effective controls to address visibility impairment from the
units are those that would reduce emissions of NOX and
SO2 rather than direct emissions of PM. In this action, we
are finalizing our proposal to disapprove the NOX and
SO2 BART determinations for these units as ADEQ did not
properly evaluate and identify controls to address visibility
impairment from these units.
In both cases, it is clear that the visibility impact from PM
emissions alone is so minimal such that the installation of any
additional PM controls on these units (including any upgrades to the
existing controls) could only have minimal visibility benefit and
therefore would not be justified. This is in keeping with the BART
Rule, which states the following:
``Consistent with the CAA and the implementing regulations,
States can adopt a more streamlined approach to making BART
determinations where appropriate. Although BART determinations are
based on the totality of circumstances in a given situation, such as
the distance of the source from a Class I area, the type and amount
of pollutant at issue, and the availability and cost of controls, it
is clear that in some situations, one or more factors will clearly
suggest an outcome. Thus, for example, a State need not undertake an
exhaustive analysis of a source's impact on visibility resulting
from relatively minor emissions of a pollutant where it is clear
that controls would be costly and any improvements in visibility
resulting from reductions in emissions of that pollutant would be
negligible. In a scenario, for example, where a source emits
thousands of tons of SO2 but less than one hundred tons
of NOX, the State could easily conclude that requiring
expensive controls to reduce NOX would not be
appropriate. In another situation, however, inexpensive
NOX controls might be available and a State might
reasonably conclude that NOX controls were justified as a
means to improve visibility despite the fact that the source emits
less than one hundred tons of the pollutant.'' \213\
---------------------------------------------------------------------------
\213\ 70 FR 39116.
In reviewing the State's PM BART determinations for Flint Creek
Boiler No. 1 and White Bluff Units 1 and 2, we utilized ADEQ's pre-
control screening modeling using 24-hr maximum actual emissions from
the baseline period as recommended in the BART guidelines. We did not
rely on the cumulative modeling results found in Appendix 9.2D of the
AR RH SIP in our review of ADEQ's PM BART determination for sources at
these two facilities. Based on our analysis of the data submitted by
ADEQ in the Arkansas RH SIP, we find that no additional controls are
required for PM and therefore are finalizing our proposal to find that
the existing PM emission limits are acceptable to satisfy the PM BART
requirements of Flint Creek Boiler No. 1 and White Bluff Units 1 and 2.
Comment: Even though the modeling for Entergy's White Bluff Units 1
and 2 deviated from the standard modeling protocol in evaluating wet
and dry scrubbers, these deviations did not impact the BART analysis
and subsequent BART determination for these units. The use of the 8th
highest day rather than the maximum visibility impact did not impact
the BART determination because the units were still determined to be
subject-to-BART and the BART decision was not based upon modeling.
Therefore, ADEQ's acceptance of the modeling should be approved by EPA.
Response: The modeling conducted for Entergy White Bluff Units 1
and 2 was not conducted appropriately for its purpose and affected the
BART analysis and subsequent BART determinations for these units. The
modeling for wet and dry scrubbers at Entergy's White Bluff units 1 and
2 evaluated both control technologies at an emission limit of 0.15 lb/
MMBtu for SO2. However, wet scrubbers and dry scrubbers are
capable of achieving a lower emission limit than was modeled by ADEQ,
and similar facilities use these controls to control SO2
emissions below the 0.15 lb/MMBtu limit included in the analysis. The
lowest emission limit achievable must be included in the BART analysis.
ADEQ evaluated the control effectiveness of the two control options of
wet and dry scrubbing, stating the wet scrubber can achieve up to 95%
control efficiency while the dry scrubber can achieve up to 92% control
efficiency. An emission limit of 0.15 lbs/MMBtu represents a control
efficiency of only approximately 80% at White Bluff Units 1 and 2.
Therefore, the visibility modeling is flawed because it did not
evaluate the level of visibility improvement reasonably achievable due
to the use of these technologies at the emission rate these
technologies are capable of achieving.
Furthermore the original meteorological databases generated by
CENRAP did not include observations as our guidance recommends. The use
of meteorological databases that do not include observations may lead,
to less conservatism in the CALPUFF modeled visibility results compared
with modeling that uses meteorological databases with observations. To
account for this, the use of the 1st High modeling values rather than
8th high modeling values was agreed to by EPA, representatives of the
Federal Land Managers, and CENRAP stakeholders. The modeling conducted
for Entergy's White Bluff Units 1 and 2 deviated from this accepted
modeling protocol by using the 8th highest day rather than the maximum
impacted day and failed to account in any other way for the loss in
conservatism that results from using the CENRAP database that does not
include observations. In summary, an approvable visibility analysis
would follow the agreed upon modeling protocol for BART and evaluate
the visibility benefits for the lowest emission limit achievable by
each technologically feasible control as required by the RHR.
Comment: We agree with EPA's finding that the visibility impact
analysis of the SO2 control options for Entergy White Bluff
Units 1 and 2 was not properly conducted because ADEQ's modeling for
White Bluff Units 1 and 2 considered both wet and dry scrubbers at the
same emission rate of 0.15 lb/MMBtu rather than modeling the emission
rates that these technologies are capable of achieving. In addition,
the modeling for Entergy's White Bluff Units 1 and 2 deviated from
ADEQ's modeling protocol by using the 98th percentile value of
visibility impacts rather than the highest day of impacts.
Response: As explained elsewhere in our response to comments, we
find that the visibility impact analysis of the SO2 control
options for the White Bluff units 1 and 2 was not properly conducted
because ADEQ's modeling for White Bluff Units 1 and 2 considered both
wet and dry scrubbers at the same emission rate of 0.15 lb/MMBtu rather
than modeling the emission rates that these technologies are capable of
achieving. We find that ADEQ's modeling for Entergy's White Bluff Units
1 and 2 deviated from ADEQ's modeling protocol by using the 98th
percentile value of visibility impacts rather than the highest day of
impacts.
Comment: ADEQ performed the BART determination modeling in
accordance with the guidance provided by EPA. ADEQ modeled
SO2 and NOX together, both pre-control and post-
[[Page 14659]]
control. Modeling results showed the pollutant that impacted visibility
was SO2 and not NOX. Utilizing this information
and in compliance with the EPA's BART Guidelines, ADEQ did not make
BART determination for that source or group of sources (or for certain
pollutants for those sources) when ADEQ's analysis showed that an
individual source or group of sources (or certain pollutants from those
sources) is not reasonably anticipated to cause or contribute to any
visibility impairment in a class I area.
Response: We agree that ADEQ pre-control and post-control modeling
was performed modeling all pollutants (NOX, SO2,
and PM) together. We note that to properly evaluate the visibility
benefit from a control, NOX and SO2 emissions
should be modeled together.
It is unclear which facility the comment is referring to regarding
ADEQ not making a BART determination for NOX based on
modeling that showed SO2 impacted visibility and not
NOX. ADEQ did make NOX BART determinations for
all but two subject-to-BART sources. Our concerns with these BART
determinations are discussed in detail in a separate response to
comment.
For AECC Bailey Unit 1 and AECC McClellan Unit 1, ADEQ determined,
based on pollutant-specific modeling performed subsequent to the
initial pre-control screening modeling, that NOX
contributions were less than the 0.5 dv threshold and, as a result,
incorrectly determined a NOX BART determination was not
needed for these two units. ADEQ made a NOX BART
determination for all other sources they determined to be subject-to-
BART. In the case of the two AECC units, as stated in our proposal, our
evaluation of the screening modeling results for these units reveals
that on some of the most impacted days, nitrate is a significant
contributor to the visibility impairment due to these units. Post-
control modeling performed by ADEQ, applying the use of 1% sulfur fuel,
show that these units would continue to cause or contribute to
visibility impairment at a number of Class I areas, with NOX
emissions responsible for over 50% of the impairment on some days under
this control scenario. The pollutant-specific analysis approach for
NOX and SO2 used to evaluate controls at these
AECC units does not take into consideration the chemical interaction
between these two pollutants and ammonia present in the atmosphere. A
reduction in sulfate emissions can result in an increase in visibility
impairment from nitrate due to the increase in ammonia available to
react with nitrate to form visibility impairing aerosol. The pre-
control modeling results indicate that nitrate is a significant
contributor to visibility impairment on some days and this contribution
can increase under conditions of decreased SO2 emissions.
Therefore, NOX and SO2 emissions should be
modeled together and emission control technologies should be evaluated
for both pollutants. In light of the relatively high impacts due to
nitrate, a combination of NOX and SO2 controls
may prove to be cost-effective and provide for substantial visibility
improvement and must therefore be evaluated. We further discuss the
importance of evaluating all the emissions (NOX,
SO2, and PM) together from BART sources when assessing the
benefit in visibility impairment from reductions of NOX and/
or SO2 in another response to comment and also in past EPA
guidance.\214\
---------------------------------------------------------------------------
\214\ BART Guidelines; Memo from Joseph Paisie (Geographic
Strategies Group, OAQPS) to Kay Prince (Branch Chief EPA Region 4)
on Regional Haze Regulations and Guidelines for Best Available
Retrofit Technology (BART) Determinations, July 19, 2006; EPA Q and
A--September 26, 2006.
---------------------------------------------------------------------------
Comment: The EPA is inconsistent in its approach to the
contribution threshold to visibility impairment. The EPA initially
approved ADEQ's selection of a threshold of 0.5 dv in the Arkansas RH
SIP. However, the EPA later on states that a lower threshold value is
needed in evaluating pollutant-specific modeling for sources that emit
more than one visibility impairing pollutant. Arkansas properly modeled
the visibility impacts of NOX and SO2 emissions
separately from one another. Arkansas's application of the 0.5 dv
threshold in considering the impacts of NOX, SO2,
and PM on a per-pollutant basis is consistent with the BART Guidelines.
The EPA argues that the 0.5 dv threshold in the BART Guidelines applies
to all three visibility impairing pollutants combined, and requires the
state to lower the threshold value in evaluating pollutant-specific
modeling for sources that emit more than one visibility impairing
pollutant. This is unsupported as a legal, factual, and policy matter,
and it is unclear what EPA actually expects states to do on this issue.
The EPA's proposed rule does not provide any guidance on EPA's
views as to how Arkansas and other states should modify the 0.5 dv
threshold to account for separate modeling of PM, on the one hand, and
NOX and SO2, on the other hand. The EPA cannot
reasonably purport to require the state to apply a new, untested, and
previously unarticulated standard in its BART analyses if it does not
provide guidance on how it should do so. Consistent with the 2006 EPA
memorandum cited by EPA in its proposal, it is believed that numerous
BART contribution analyses separating PM from NOX and
SO2 have been performed without revising the 0.5 dv
contribution threshold on this basis alone. EPA has not previously
stated or suggested that any such revision is necessary and there is no
basis for any suggestion that such a revision is necessary. EPA should
recognize that states may use the default 0.5 dv contribution threshold
and allow the application of this threshold regardless of how
pollutants are modeled. EPA's proposed new approach needlessly
complicates the analysis, is inappropriate and unsupported, and should
be withdrawn. ADEQ's selection of a threshold of 0.5 dv is reasonable
and appropriate, and should be approved by EPA.
Response: We reviewed ADEQ's methodology to initially identify
which sources were subject-to-BART. This methodology included modeling
all pollutants together and applying a contribution threshold of 0.5
dv. As discussed in our proposed rule, we agree with ADEQ's selection
of the 0.5 dv threshold as it applies to the initial screening modeling
performed by ADEQ when all three pollutants, NOX,
SO2 and PM are considered together.
We disagree with the characterization of the 0.5 dv threshold as a
default value. The BART Guidelines state that ``the appropriate
threshold for determining whether a source contributes to visibility
impairment' may reasonably differ across states,'' but, ``[a]s a
general matter, any threshold that you use for determining whether a
source `contributes' to visibility impairment should not be higher than
0.5 deciviews.'' 70 FR 39104, 39161. The 0.5 dv threshold is not set as
a default value but rather a ceiling to what may be determined to be
appropriate in any situation. Further, in setting a contribution
threshold, the BART Guidelines say that states should ``consider the
number of emissions sources affecting the Class I areas at issue and
the magnitude of the individual sources' impacts.'' 70 FR 39104, 39161.
The BART Guidelines affirm that states are free to use a lower
threshold if they conclude that the location of a large number of BART-
eligible sources in proximity of a Class I area justifies this
approach.
The pollutant-specific approach is acceptable only for PM BART
contribution analyses. Furthermore, as
[[Page 14660]]
stated in the 2006 EPA memorandum\215\ referenced in the comment, using
CALPUFF on a pollutant-specific basis for PM is only appropriate in
certain situations, such as if a State chooses to adopt the Clean Air
Interstate Rule (CAlR) program/CSAPR to address emissions of
SO2 and NOX from EGUs. In such an instance, the
CAIR/CSAPR may satisfy the requirements for BART for these pollutants
from these sources. However, the State must determine whether its BART-
eligible EGUs are subject to review under BART for direct emissions of
PM.
---------------------------------------------------------------------------
\215\ Memo from Joseph Paisie (Geographic Strategies Group,
OAQPS) to Kay Prince (Branch Chief EPA Region 4) on Regional Haze
Regulations and Guidelines for Best Available Retrofit Technology
(BART) Determinations, July 19, 2006.
---------------------------------------------------------------------------
Arkansas did not rely on CAIR to address emissions of
SO2 and NOX. Therefore, pollutant specific
analysis is not appropriate for a single source analysis. For non-CAIR
situations, it is necessary to model the source's total emissions
(NOX and SO2) in any CALPUFF modeling to estimate
visibility impairment or change in visibility impairment from the
potential installation of controls or no controls. Separate pollutant-
specific analyses for NOX and SO2 do not take
into consideration the chemical interaction in the atmosphere. Such
modeling does not take into account the competition/balance of these
two pollutants chemical reactions with ammonia present in the
atmosphere. A reduction in sulfate emissions can result in an increase
in visibility impairment due to nitrate due to the increase in ammonia
available to react with nitrate to form visibility impairing aerosol.
Therefore, NOX and SO2 emissions should be
modeled together and emission control technologies should be evaluated
for both pollutants.\216\
---------------------------------------------------------------------------
\216\ BART Guidelines; Memo from Joseph Paisie (Geographic
Strategies Group, OAQPS) to Kay Prince (Branch Chief EPA Region 4)
on Regional Haze Regulations and Guidelines for Best Available
Retrofit Technology (BART) Determinations, July 19, 2006; EPA Q and
A--September 26, 2006
---------------------------------------------------------------------------
ADEQ's approach to modeling a single source on a pollutant specific
basis could allow for a BART applicable source to model below 0.5 for
each of the pollutants individually (NOX, SO2,
and PM), which could lead to a potential cumulative impact of up to
1.47 dv (3 x 0.49 dv) and yet the source would not be evaluated for
controls. This process would allow a determination to be made in this
maximum hypothetical case that a 1.47 dv impact from a subject to BART
source, which is above the 1.0 dv impact that would result in the
source causing a significant visibility impairment, would ``screen''
out of a full BART analysis using ADEQ's approach. This is not
appropriate and is inconsistent with our BART Guidelines and guidance.
In evaluation of pollutant-specific impacts from a source (i.e.
visibility impacts from PM emissions), consideration of the amount of
visibility impairment contribution from a source's PM emissions can be
evaluated against the visibility impairment contribution from the
source's combined NOX and SO2 emissions.\217\
---------------------------------------------------------------------------
\217\ Ibid.
---------------------------------------------------------------------------
EPA also disagrees that we have developed or implemented any new
guidance in our proposal. EPA's approach is based on the 2005 BART
guidelines, and additional guidance provided in 2006.
Comment: Although the use of daily maximum emissions for BART
modeling purposes meets the modeling protocol, this protocol should be
revisited due to the fact that using daily maximum emissions is
completely unrealistic and overly conservative in most cases, as it
assumes that such an emission rate occurs every day for three years.
This is especially overly conservative for Unit 1 of the Carl E. Bailey
Generating Station and Unit 1 of the John L. McClellan Generation
Station, as these units primarily fire natural gas and have rarely
fired fuel oil over the past few years. With upcoming EPA environmental
regulations such as the Utility MACT Rule being promulgated, these
units are likely to continue the trend of low capacity factors of fuel
use. Any controls required to be implemented on these units will only
be used 5% or less of the time, and it is certainly not cost-effective.
Logic and practicality dictate that the minimal use of fuel oil at
these two units requires an accommodation in this instance.
Response: We agree that the modeling protocol and the BART
Guidelines state that the daily maximum emissions should be used for
modeling visibility impacts during the baseline period. We note that
the BART Guidelines do allow for consideration of limited operation of
a source or fuel type. Given that there are no permit requirements in
place that would limit the time of operation of the AECC units when
burning fuel oil, the facilities can legally be operated well above the
5% capacity factor that AECC assumes it will be operating under in the
future. It is likely that if the fuel oil burning capacity of these
units is significantly limited, installation of controls to address the
emissions during fuel oil burning would prove to be not cost-effective
on a dollar per ton removed basis. A federally enforceable limit must
be in place that can be relied upon to limit the emissions of the
source during fuel oil burning scenarios. We are disapproving the
SO2 BART analysis for these two units because ADEQ did not
consider the option of burning fuel oils with sulfur content less than
1.0%. As articulated in our proposal, the use of fuel oil with a 0.5%
sulfur content or lower is technically feasible and ADEQ should have
evaluated its cost effectiveness and visibility impact for the AECC
Bailey Unit 1 and the AECC McClellan Unit 1. Alternatively, an
operating air permit restriction to use only natural gas as the fuel
source for the two units or significantly restricting fuel oil burning
may be acceptable.
At this time, it is speculation to assume that the future amended
MACT rule will lower the capacity factors of fuel use for sources. When
evaluating a state's BART determination, the EPA looks at existing
requirements and cannot rely on potential future actions in its
decision to approve or disapprove a state SIP. ADEQ cannot rely on a
future MACT Rule to limit the capacity factor of fuel oil use.
Comment: All post-control CALPUFF modeling completed in Domtar's
analysis was cumulative-type modeling, taking into account all
pollutants--NOX, SO2, and PM10 in each
analysis. The EPA needs to list in detail any concerns about the
methods used to complete modeling analysis of Domtar's facility.
Response: We agree with the commenter that post-control modeling
for the Domtar facility was performed modeling all visibility impairing
pollutants together (SO2, NOX and PM). As
discussed in the proposed action, we are finding the chosen model and
the general modeling methodology used by ADEQ to be acceptable. Because
Domtar's visibility modeling was performed following the ADEQ modeling
protocol, we also find that the modeling methodology followed by Domtar
is acceptable. However, the BART determinations made for the subject-
to-BART units at the Domtar facility were performed without evaluating
the visibility improvement anticipated due to the use of all
technically feasible control options. Visibility modeling was performed
only after a control technology was selected as BART. This approach is
unacceptable and does not allow for a comparison of the effectiveness
of available controls in reducing visibility impacts to be considered
as part of the BART determination. ADEQ's and Domtar's BART
determinations were flawed
[[Page 14661]]
because the modeling did not evaluate all technically feasible control
options or evaluate the control technology at the control efficiencies
they are capable of achieving to inform the BART determination. We
note, that to properly evaluate the visibility benefit from each
control, NOX and SO2 emissions must be modeled
together for each control scenario examined, similar to the modeling
performed in the post-and pre-control modeling scenarios.
Comment: The EPA cannot rely on post-control modeling to justify
the requirement to evaluate post-combustion controls for NOX
in the agency's disapproval of the BART determinations for Entergy's
White Bluff facility. While EPA states that post-control modeling shows
continued post-control modeled visibility impairment due to
NOX emissions, the models, including CALPUFF, significantly
overstate nitrate-caused RH, and reliance on those models is not a
credible approach. Even EPA acknowledges that the CALPUFF model tends
to magnify the actual visibility effects of an individual source and
the CALPUFF model is less advanced than some of the recent atmospheric
chemistry simulations. A more recent version of CALPUFF tends to reduce
the nitrate over prediction using more advanced chemistry modules
borrowed from regional models such as CAMx and CMAQ, but this version
has not been yet approved by EPA. Because there is not a credible
version of CALPUFF with adequate chemistry to assess the visibility
impact of Arkansas NOX emissions in an unbiased manner, it
is helpful to look at actual monitoring data taken at IMPROVE sites and
to keep in mind that the nitrate chemistry and the IMPROVE monitoring
data indicate that NO3 particulate formation tends to occur
on the coldest days, while on warmer days, invisible HNO3
vapor formation is preferred, which has no visibility impact. The
Arkansas sources that affect the class I areas subject to this rule are
south and east of the areas, which are generally not associated with
the coldest conditions when the worst nitrate haze is observed to
actually occur.
Response: We disagree that we relied on post-control modeling to
justify the requirement to evaluate post-combustion controls. The post-
control model results indicate that even after application of the
State's selected combustion controls to reduce NOX
emissions, a significant visibility impact due to NOX
emissions from White Bluff Units 1 and 2 remains. This demonstrates
that post-combustion controls that result in larger reductions of
NOX may prove to be cost-effective and result in significant
visibility improvement. We note that the modeling of changes in
visibility impacts is only one of five factors that are evaluated in a
BART analysis. In performing a BART analysis, the State must take into
consideration all technologically feasible and available control
technologies, the costs of compliance, the energy and non-air quality
environmental impacts of compliance, any pollution control equipment in
use at the source, the remaining useful life of the source, and the
degree of improvement in visibility which may reasonably be anticipated
to result from the use of such technology.\218\ As articulated in more
detail in our proposal and in our response to previous comments, when
evaluating NOX controls for White Bluff Units 1 and 2, the
State considered only combustion controls that would achieve the
presumptive NOX emission limit even though there are
technically feasible and available control technologies (including
post-combustion controls) that are currently being used at similar
facilities to meet an emission limit much more stringent than the 0.15
lb/MMBtu presumptive limit for NOX. The BART Guidelines
provide that in identifying control options for evaluation in a BART
analysis, states must identify the most stringent option and a
reasonable set of options for analysis that reflects a comprehensive
list of available technologies.\219\ In addition, the RHR requires that
in establishing source specific BART emission limits, a state's BART
analysis must identify and consider the maximum level of emission
reduction that has been achieved in other recent retrofits at existing
sources in the source category.\220\ Therefore, as explained in more
detail in our response to previous comments, in its NOX BART
analysis for White Bluff Units 1 and 2, the State must evaluate
NOX post-combustion controls at the most stringent emission
limit capable of being achieved by these controls.
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\218\ See 40 CFR 51.308(e)(1)(ii)(A) and 42 U.S.C. 7491(g)(2).
\219\ Appendix Y to Part 41, section IV.D.
\220\ 64 FR 35740.
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We disagree with the comment's characterization that the CALPUFF
model approved for regulatory actions is not a credible model to assess
visibility impacts of NOX emissions from Arkansas sources.
For the specific purposes of the RHR's BART provisions, we concluded
that CALPUFF (versions that EPA has approved) is sufficiently reliable
to inform the decision making process in determining if a full BART
analysis is required and in estimating the degree of visibility
improvement that may reasonably be expected from controlling a single
source in order to inform the BART determination.\221\ When we
developed the BART Guidelines and determined the acceptability of using
CALPUFF in estimating visibility impacts from BART sources (BART
eligible or subject to BART sources), EPA was aware that EPA had not
approved the regulatory version of CALPUFF for doing full chemistry as
a Guideline on Air Quality Models (GAQM) preferred model. The final
BART Guidelines recommend that CALPUFF's 98th percentile modeling
results be used to estimate the visibility impairment. This is in
contrast to the approach in our BART Guidelines proposal to use the
highest daily impact value. We acknowledged that the chemistry modules
in the CALPUFF model are simplified and likely to provide conservative
(higher) results for peak impacts. To address the concerns which are
now being raised by the comment, we made the decision to consider the
less conservative 98th percentile to account for this potential
bias.\222\
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\221\ Regulatory version that had been approved by EPA for
assessing Long Range Transport of primary pollutants. Final BART
guidelines published July 6, 2005. (70 FR 39104-39172).
\222\ ``Most important, the simplified chemistry in the model
tends to magnify the actual visibility effects of that source.
Because of these features and the uncertainties associated with the
model, we believe it is appropriate to use the 98th percentile--a
more robust approach that does not give undue weight to the extreme
tail of the distribution.'' 70 FR 39104, 39121.
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The BART modeling protocol, developed by the CENRAP for use by all
CENRAP states and reviewed by EPA and the FLM including the use of
CALPUFF, was adopted by ADEQ. In general, this protocol was followed by
ADEQ in determining which sources were subject-to-BART and in modeling
visibility impacts from controls in evaluating BART.\223\ In
development of the CENRAP BART modeling protocol, we were concerned
that CENRAP had not included meteorological observation data in
development of the
[[Page 14662]]
meteorological data sets for the BART CALPUFF modeling. We were
concerned that this approach, that did not follow our guidelines, would
lead to some underestimation of impacts. As a result, EPA, FLM
representatives, states, and stakeholders agreed that they would either
use the maximum model predicted values (instead of the 98th percentile)
or develop a modeling protocol to generate the meteorological datasets
with meteorological observations, which we would then allow the use of
the 98th percentile. We note that the CALPUFF modeling in ADEQ's SIP
that was provided by Entergy White Bluff's contractors did not use the
maximum value but did use the CENRAP meteorological dataset and used
the 98th percentile, which creates a concern that visibility impairment
will be underestimated. We noted this concern in our proposal and also
a concern that Entergy had utilized a higher emission rate than is
likely achievable by the selected control technology and both of these
issues would lead to underestimations in the visibility benefit
anticipated from the use of additional controls.\224\ These issues will
need to be addressed when a revised BART analysis is completed.
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\223\ As discussed in detail in a separate response to comment,
because the CENRAP meteorological databases used in the CALPUFF
modeling analyses do not include observations, the use of the
maximum impact rather than the 98th percentile was agreed upon. The
use of meteorological databases that do not include observations may
lead, in some applications, to potentially less conservatism in the
CALPUFF modeled visibility results compared with modeling that uses
meteorological databases with observations. The use of the 1st High
modeling values was agreed to by EPA, representatives of the Federal
Land Managers, and CENRAP stakeholders to account for this.
\224\ See 76 FR 64205-64207.
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The comment suggests that CALPUFF version 6.4 has been updated with
an allegedly more robust chemistry and purportedly performs better
according to the comment than the current version of the model approved
for regulatory actions (currently CALPUFF version 5.8). The comment
claims that CALPUFF version 6.4 was shared with EPA in December 2010.
We wish to clarify that EPA had a meeting with API representatives and
others in February 2011. At this meeting, a PowerPoint was shared about
CALPUFF version 6.4, but the full model code, explanations and
documentation of the code, model evaluations, etc., have not been
provided to EPA as of February 2012. We have a detailed procedure for
evaluation of new models that includes documentation, peer review,
evaluation, performance analysis, etc. Furthermore, significant changes
in models (such as a significant upgrade in the chemistry module) are
often required to go through a formal rulemaking process for adoption.
As noted by the comment, we previously received comments about the
CALPUFF version 6.4 model in another action and provided a response
that a proper review analysis and evaluation have not been
conducted.\225\ As noted by the comment, the more recently developed
model version (version 6.4) has not gone through the appropriate review
to assess if it is founded in appropriate science and performs
adequately and reliably and is an improvement to the current version
that is acceptable for regulatory actions. If the revised versions of
CALPUFF can be shown to be reliable and acceptable to EPA through the
appropriate process, it would likely be appropriate to the use Highest
Daily impact (1st High instead of the 8th High) based on the
presumption that the updated chemistry of the CALPUFF model would
result in less conservative results than EPA approved CALPUFF versions
5.8 or 5.711. In past agreements in using the CAMx photochemical model,
which has a robust chemistry module, Region 6 has required the use of
the 1st High value when sources are screened out of a full BART
analysis based on the CAMx results.
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\225\ See 76 FR 52431--52434 and the Response to comments
document (pg. 124-133) for a full agency discussion on why CALPUFF
version 6.4 (and other non-EPA approved versions) are not acceptable
at this time for regulatory analyses (EPA Docket ID No. EPA-R06-OAR-
2010-0846).
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With regard to the comment's observation that the monitoring data
indicates visibility impacts due to nitrate formation occur on colder
days and that these days are not when winds are generally from the
south or east, EPA notes that monitoring data is only collected every
three days at each IMPROVE monitor and there is only one monitor in a
Class I area. Modeling provides for an analysis of visibility
conditions during every day of the baseline period at a number of
receptor locations at each Class I area, and is not limited by the
number of days data is collected. Modeling also allows for receptors to
be placed throughout the Class I area and not limited to one monitor
location for estimating visibility impairment throughout the Class I
areas. Thus, the comment's observation is overly generalized that the
winds do not generally come from the south and east during the colder
periods when nitrates are a concern at the Class I areas of concern.
This overly broad-brushed statement about wind patterns is not
supported by a more detailed analysis of wind patterns nor transport
phenomena as wind directions change. We included a more sophisticated
approach for source-receptor analysis in our BART Guidelines that takes
into account meteorological transport patterns on every day of the
year. Since transport of pollutants to the Class I area is not always a
direct route as wind patterns change, the more sophisticated approach
discussed in the BART guidelines is to use a full meteorological
modeling analysis using prognostic meteorological data that has wind
speed and direction throughout many atmospheric layers from the surface
to the upper atmosphere. CALPUFF visibility modeling was performed
using three years (2001-2003) of prognostic meteorological data and 24-
hr actual maximum emissions, following the methods in the BART
Guidelines. Pre-control and post-control modeling show significant
visibility impacts due to the Entergy White Bluff's NOX
emissions, with some of the highest impacted days occurring during the
fall and winter months. This analysis did not include an evaluation
based on the most effective emission limit that can be achieved. So it
is likely that there are underestimates in the visibility improvement
that could potentially be achieved from installation of BART. The use
of CALPUFF and prognostic meteorological data that is generated with
the same meteorological models as weather forecasting, with the many
layers of wind speed and direction, is a much more appropriate and
sophisticated approach to analyzing visibility impairment than the
comment's assessment of potential impacts from Arkansas sources
indicated. Therefore, we disagree with the statement that the source
would not be affecting the Class I areas because the winds are not
generally from the south or east when the coldest conditions occur that
are associated with the worst nitrate haze.
G. Comments on Legal Issues
1. Comments on Regional Haze
Comment: The EPA does not have the authority under the CAA to
partially disapprove portions of Arkansas's RH SIP including BART
determinations that did not address all the BART factors, BART
determinations that adopted presumptive limits, Arkansas's LTS, and
Arkansas's RPGs. The EPA's proposal improperly encroaches on the
state's authority and discretion in developing a RH SIP. Arkansas has
properly exercised its statutory authority under the CAA. The EPA must
defer to Arkansas determinations in their RH SIP since EPA lacks the
authority to substitute its own judgment or policy preferences for the
state's determination. The EPA's role in implementing the visibility
program under the RH SIP is one of support and cooperation in
implementation.
Response: The EPA's proposed partial disapproval of Arkansas's RH
SIP is a proper exercise of EPA's authority under the Clean Air Act.
Congress crafted the CAA to provide for states to
[[Page 14663]]
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. The EPA's review of SIPs is not
limited to support and cooperation in implementation of a state SIP,
nor is it to simply rubber-stamp state decisions. When reviewing state
SIPs, EPA must consider not only whether the state considered the
appropriate factors in making decisions, but acted reasonably in doing
so. In undertaking such a review, EPA does not usurp the state's
authority but ensures that such authority is reasonably exercised.
In taking action on the Arkansas RH SIP submittals, EPA is
disapproving a portion but approving as much of the Arkansas RH SIP as
possible. Our action today is consistent with the statute. In
finalizing our proposed determinations, we are approving the following:
Arkansas's identification of affected Class I areas; the establishment
of baseline and natural visibility conditions; the determination of
URP; Arkansas's RPG consultation; the RH monitoring strategy and other
SIP requirements under Sec. 51.308(d)(4); Arkansas's commitment to
submit periodic RH SIP revisions and periodic progress reports
describing progress towards the RPGs; Arkansas's commitment to make a
determination of the adequacy of the existing SIP at the time a
progress report is submitted; and Arkansas's consultation with FLMs. We
are also largely approving those portions of the SIP addressing
Arkansas's identification of those sources that are BART-eligible
sources and those subject to BART sources; some of the State's BART
determinations for five units; Arkansas's RH Rule; and the LTS.
We are, however, disapproving some of the State's BART
determinations for nine units. As explained in the proposal and the
previous response to comments, some of the State's BART determinations
for the nine units are not approvable because Arkansas did not follow
the requirements of section 40 CFR 51.308(e). 76 FR at 64186, at 64187.
As a result of EPA's disapproval of the BART determinations, we are
also partially disapproving that portion of the LTS affected by this
disapproval. Similarly, EPA's disapproval of Arkansas's RPGs is based
on the state's failure to follow the requirements of 40 CFR
51.308(d)(i)(A). See also CAA Sec. 169A(g). In concluding that
Arkansas did not adhere to the requirements of the RHR, EPA is not
substituting its policy judgment for that of Arkansas but rather
exercising its authority to ensure that the state's decisions are
reasonable ones that meet statutory and regulatory requirements.
Comment: The CAA gives primacy to the states in devising the LTS
for making reasonable progress toward the national visibility goal and
in making BART determinations and limited authority to EPA. In
accordance with section 169A(a)(4), EPA promulgates regulations to
assure progress towards the national goal of preventing future and
remedying existing visibility impairment in Federal class I areas while
the states are required to submit SIP which meets these measures. In
1999 and 2005, EPA promulgated and subsequently amended the RHR which
gives guidance to the states on how to develop a visibility program
that meets the national visibility goal for their state. Section
169(A)(b)(2) requires States to direct sources subject to BART to
comply with a BART determination. In accordance with section 169B,
states, acting together through visibility transport commissions, are
primarily responsible for formulating a coordinated response to
interstate transport of visibility. With respect to the RHR and the
BART Guidelines, the CAA only requires that states take measures
necessary to make reasonable progress toward the national goal by
engaging in the process of weighing statutory factors. Regarding EPA's
role, section 169A(g)(2) (as defined in Train v. Natural Res. Def.
Council, 421 U.S. 60, 79 (1975)) provides that EPA may disapprove a SIP
only where a state's SIP fails to meet the minimum CAA requirements.
Response: We agree that the states are assigned statutory and
regulatory authority to draft and implement the visibility program as
well as to make BART determinations for sources within their state.
Although the states generally have the freedom to determine the weight
and significance of the statutory factors in making BART determinations
\226\, they have an overriding obligation to come to a conclusion that
is based on reasoned analysis. Similarly, states are given flexibility
in determining reasonable progress, but in making that determination,
they are required by the CAA to consider certain factors. Whether one
characterizes EPA's role as limited or not limited in reviewing RH
SIPs, EPA must determine if the state's SIP meets the applicable
statutory and regulatory requirements. The state's BART determinations
for some sources, its LTS, and RPGs were flawed for reasons discussed
elsewhere in this notice and the proposed rulemaking. While states have
the authority to exercise different choices in determining BART or
setting RPGs, such decisions must be reasonable and consistent with
statutory and regulatory requirements. Arkansas's errors were
significant enough that we cannot conclude that the state's decision
met this standard. Our disapproval of portions of the RH SIP has an
appropriate basis in our CAA authority.
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\226\ States must follow the BART Guidelines in making BART
determinations for EGUs at power plants with a total generating
capacity greater than 750 MW. 40 CFR 51.308(e)(1)(ii)(B). In
establishing presumptive limits for these sources, EPA undertook a
partial weighing of the statutory factors that apply to BART
determinations.
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Comment: U.S. courts agree that EPA's role in reviewing visibility
programs and determining BART is limited. According to American Corn
Growers Ass'n v. EPA, 291 F.3d 1 (DC Circuit 2002), states play the
lead role in designing and implementing RH programs. American Corn
Growers outlined the legislative history, including the Conference
Report on the 1977 amendments, when the Court invalidated past
regulatory provisions regarding BART for constraining state authority.
The Court stated that the Conference report confirmed that Congress
intended states to decide which sources impair visibility and what BART
controls apply to those sources.
Response: We agree that the CAA places the requirements for
developing RH plans and determining BART for BART-eligible sources on
states. As discussed above, EPA's role is to review the RH SIP
submittal including the BART determinations and determine if the state
met the applicable statutory and regulatory requirements. While the
court in American Corn Growers found that EPA had impermissibly
constrained state authority, it did so because it found that EPA forced
states to require BART controls without first assessing a source's
particular contribution to visibility impairment. This is not the case
with our action. We are not forcing Arkansas to adopt a particular
measure or to weigh the statutory factors in a particular way. Rather,
we are disapproving portions of Arkansas's RH SIP that address BART,
LTS, and RPGs because the state omitted critical analyses and made
flawed assumptions that compromise any decisions.
Comment: The Supreme Court has ruled that states have primary
authority in issues relating to the CAA. In Train v. Natural Res. Def.
Council, 421 U.S. 60 (1975), the court ruled that EPA had no authority
to question the wisdom of a state's choices of emissions limitations if
they are part of a plan which satisfies the standards of the CAA. The
EPA may
[[Page 14664]]
devise and promulgate a specific plan of its own only if a state fails
to submit an implementation plan which satisfies those standards.
Response: Our action does not contradict the Supreme Court's
decision in Train. States have significant responsibilities in
implementation of the CAA and meeting the requirements of the RHR. We
recognize that states have the primary responsibility of drafting an
implementation plan to address the requirements of the CAA Visibility
Program. We also recognize that we have the responsibility of ensuring
that the state plans, including RH SIPs, conform to the CAA
requirements. We cannot approve a RH SIP that fails to address BART,
LTS, and RPGs with a reasoned consideration of the statutory and
regulatory requirements of the CAA and the RHR.
Comment: Because visibility impairment is primarily aesthetic and
does not rise to the same level of public policy concern as dangers to
the public health, Congress made the national visibility goal
discretionary. Accordingly, unlike other provisions of the CAA, the
national visibility goal is not considered to be a non-discretionary
duty of the Administrator under section 169A(f). Likewise, the court in
American Corn Growers has recognized that the natural visibility goal
is not a mandate but a goal. In addition, the CAA does not mandate a
particular timeframe to meet the national goal of natural visibility,
only that states make reasonable progress. The amount of progress that
is reasonable is not defined according to objective criteria but
instead involves balancing of public interest.
Response: We do not agree that the CAA or RHR prescribes a
different degree of authority to states based on the program having the
goal of improving visibility as opposed to preventing adverse human
health effects. Among other things, the CAA requires states to submit
plans that satisfy NAAQS standards set to protect both public health
and welfare. Nothing in the terms of the CAA or its implementation
history directs that SIP submittals addressing visibility are subject
to a different standard of evaluation than SIP submittals that directly
address public health issues associated with air pollutants. The
distinction is not relevant to state authority to develop RH SIPs and
does not diminish our responsibility and authority to require that they
conform to the RHR and the Act.
More generally, we agree that the CAA does not mandate a particular
timeframe to meet the national visibility goal. The comment is not
relevant, however, as our action to partially disapprove Arkansas's RH
SIP is not based on a finding by EPA that Arkansas's RH SIP fails to
achieve the national goal. Similarly, EPA is not disapproving
Arkansas's RH SIP because we disagree per se with the State's
conclusions as to what constitutes reasonable progress for this time
period. Our disapproval of the Arkansas RH SIP is based on the fact
that critical analyses were omitted and that these omissions compromise
Arkansas's determinations as to the measures necessary to make
reasonable progress.
Comment: Although EPA can set national goals and guidelines for the
RH program, individual states have the authority to select BART for
specific sources of emissions and design the specific plans that are
appropriate for respective populations. The RHR does not require a
definitive dv or percent improvement in visibility. The only thing the
RHR requires of each state is to demonstrate an improvement in
visibility. The Arkansas RH SIP meets EPA's national goals and
guidelines. The Arkansas RH SIP establishes a firm foundation to meet
the required RPGs and meets and in some cases even exceeds the
requirements of the RHR.
Response: We do not agree that the only thing that the RHR requires
is for each state to demonstrate an improvement in visibility. The RHR
outlines a process by which states are to evaluate and develop RH SIPs,
including the process for making BART determinations. The EPA is
disapproving portions of Arkansas's RH SIP that address BART, LTS, and
RPGs because the state omitted critical analyses in accordance with the
requirements of the CAA and the RHR.
Comment: The preamble to the RHR recognized that States are the
primary decision makers in determining how to make BART determinations
and determining which sources are subject to BART. In analyzing the
applicability of certain executive orders to the proposed RHR, EPA
states that states will ultimately determine the sources subject to
BART and the appropriate level of control for such sources, and that
states accordingly exercise substantial intervening discretion in
implementing the final rule (70 FR 39155).
Response: We agree that states are assigned statutory authority to
determine BART and that EPA has made statements confirming the state's
authority in this regard. States have the flexibility to determine the
weight and significance of the statutory factors. However, states must
make a reasoned determination consistent with the requirements of the
RHR. As detailed in our proposal and the supporting TSD, Arkansas's
BART determination for nine units, Arkansas's LTS, and RPGs did not
provide reasoned determinations conforming to the requirements of the
RHR.
Comment: The EPA partially disapproved Arkansas's RH SIP because
the EPA disagreed with the State's conclusions. The EPA failed to defer
to the State's lawful exercise of its discretion pursuant to the CAA's
provisions for visibility protection.
Response: Our partial disapproval of Arkansas's RH SIP is not based
on the resulting Arkansas conclusions. Rather our decision to
disapprove Arkansas's BART determinations for nine units, LTS, and RPGs
is because the state omitted critical analyses and made flawed
assumptions that compromise the resulting determinations. The State
could submit and EPA would approve RH SIP revisions that reached
identical determinations as the current SIP submittal if Arkansas's
analysis in reaching those determinations meets the RHR and the Act.
Comment: The EPA has overstepped its authority in proposing to
reject the state's BART determinations on the basis of EPA's view that
the state's consideration of certain statutory factors was not
``adequate.'' The state, as the determining authority, has the power to
decide how each of the BART factors should be taken into account and
weighed. As long as a state considers a given factor, it has met its
obligations in regards to that factor. Once the state has made its
decision, EPA has no authority to ``second-guess'' the conclusions that
the state has reached.
Response: As explained earlier, the states have the responsibility
to draft the RH SIP and the EPA has the responsibility of ensuring
State plans, including RH SIPs, conform to the CAA. As the drafter of
the RH SIP, the state generally has the authority to decide how each of
the BART factors are taken into account and weighed. EPA is not
disapproving Arkansas's BART determinations because it disagrees with
how Arkansas weighed the relevant factors, such as the cost of controls
or the degree of visibility improvement resulting from the use of
controls. The EPA is disapproving certain Arkansas's BART
determinations because they did not consider these factors in their
BART determinations in accordance with the RHR and the Act.
Comment: All of the BART determinations made by Arkansas RH SIP
should be disapproved because
[[Page 14665]]
Arkansas did not do its own BART analysis in making its BART
determinations. Instead, Arkansas RH SIP adopted the companies' BART
analysis as part of the RH SIP and promulgated them into State
regulation. Given that Arkansas has not made any of its own BART
determinations, there are no BART determinations for EPA to act on.
Response: Arkansas submitted a RH SIP which provided BART
determinations for sources that are subject to BART. Arkansas requested
that sources subject to BART submit material including a BART analysis.
Arkansas then reviewed the analysis and data provided by the sources
and adopted its BART determinations. The EPA reviews RH SIP submittals
from states that rely upon source-generated data and information to
evaluate whether the State's decisions meet the Act and EPA rules. In
Arkansas's case, after their review of the sources' provided
information, they reached the same BART determinations as was provided
by the source.
Comment: Arkansas improperly planned to make its BART
determinations during the permitting process, not in the SIP submittal.
In 2009, ADEQ proposed a Title V permit amendment for Entergy's White
Bluff power plant to, among other things, incorporate BART emission
limits and requirements, in which ADEQ proposed different pollution
controls as BART than what was in the company's BART analysis in
Appendix 9.3 of the Arkansas RH SIP submitted to EPA.
Response: We disagree that Arkansas planned to make its BART
determinations during the permitting process, be it through the New
Source Review preconstruction permitting SIP process or the Title V
operating permit program. The State adopted its BART determinations
through rulemaking and they are found in Chapter 15 of APCEC Regulation
No. 19, as contained in the RH SIP submissions. Each of the BART
determinations approved by EPA today becomes effective under Federal
law. It also becomes an applicable requirement that must be included in
a Title V permit. Any source subject to the BART determinations
approved today must at a minimum meet these requirements, as expressed
in 40 CFR 51.308(e). If Arkansas issues a Title V permit that has less
stringent requirements than the EPA-approved BART determination, then
the source is subject to Federal enforcement action. It is incumbent
upon the source to ensure that its Title V permit application meets all
the applicable Federal requirements. It also is incumbent upon the
source to ensure that it meets the most stringent applicable Federal
requirement. If the State wishes to impose BART emission limitations in
a Title V permit that are different from what EPA is approving today as
BART, then Arkansas must adopt and submit a revised RH SIP and submit
it to EPA for approval as a SIP revision.
Comment: The EPA should not act on any of the company's BART
analyses, unless it conducts its own analysis of a company's submittal
in the context of a FIP.
Response: Under the CAA, we must, within 24 months following a
final disapproval, either approve a SIP or promulgate a FIP.\227\ As
stated elsewhere in this final rulemaking, we will consider, and would
prefer, approving a SIP if the State submits a revised plan that we can
approve before the expiration of the mandatory FIP clock for the
portions of the SIP we are disapproving in this rulemaking action. In
light of this, we are choosing at this time not to perform any BART
analyses and not to develop and propose a FIP for the BART
determinations we are disapproving.
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\227\ CAA section 110(c)(1).
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Comment: The EPA has no reason to disapprove a State BART
determination that meets the presumptive BART level. The DC Circuit
Court of Appeals held in American Corn Growers Association v. EPA, that
there is nothing in the CAA that would require a State to adopt
provisions more stringent than the Federal requirement.
Response: In disapproving BART determinations for certain subject-
to-BART sources that adopted the presumptive limits, EPA is not
requiring Arkansas to establish BART limits that are more stringent
than Federal requirements. Under the RHR, presumptive limits were
established to provide a path for States to follow when analyzing BART
for particular EGUs. The RHR has presumptive limits that act as a
starting point for the establishment of BART emission limits unless the
state's analysis indicates that an emission limit more or less
stringent than the presumptive limit is required. The EPA's BART Rule
and the BART Guidelines make clear that in developing the presumptive
emission limits, EPA made many design and technological assumptions,
and that the presumptive limits may not be BART in every case. As such,
the presumption in the BART Rule is that the controls reflected by the
presumptive limits are cost-effective, not that the presumptive limits
will be BART in every case.
Thus, EPA's proposed rulemaking on the Arkansas RH SIP did not
propose to require Arkansas's subject to BART sources to achieve an
emission rate more stringent than the presumptive emission limits.
Rather, EPA's proposed rulemaking proposed to disapprove the BART
emission limits for subject to BART sources where the State adopted
presumptive emission limits without conducting a proper BART five-
factor analysis. Only after the State conducts a proper evaluation of
the five statutory factors, as required by 40 CFR 51.308(e)(1)(ii)(A)
and section 169A(g) of the CAA, or EPA conducts one in the context of a
FIP, will it be demonstrated whether any of Arkansas's subject to BART
sources must achieve an emission rate more (or less) stringent than the
presumptive limits.
Comment: Because the State of Arkansas adopted EPA's presumptive
emission limits by default, the State of Arkansas did not fulfill its
statutory duty under 169A of the CAA and under Arkansas law to
determine BART. In addition, the State of Arkansas failed to determine,
using the five factors required under section 169A of the CAA whether
the actual costs of the proposed control technology justified the
State's determination of BART for those facilities.
Response: As explained above, presumptive limits are the starting
point in a BART determination unless the state determines that the
general assumptions underlying EPA's analysis in the RHR are not
applicable to a particular case. Section 169A outlines the analysis
that is required in order to make a BART determination. We are finding
that the State's BART determinations for certain subject-to-BART
sources do not comply with the CAA requirements by adopting the
presumptive emissions limit without conducting a proper BART five
factor analysis. Only after the State conducts a proper evaluation of
the five statutory factors, as required by 40 CFR 51.308(e)(1)(ii)(A)
and section 169A(g) of the CAA, or EPA conducts one in the context of a
FIP, will it be demonstrated whether any of Arkansas's subject to BART
sources must achieve an emission rate more (or less) stringent than the
presumptive limits.
Comment: The portion of the Arkansas RH SIP that EPA has proposed
to approve is not separable from the overall Arkansas RH SIP. The EPA
should fully disapprove the Arkansas RH SIP because it fails to meet
the requirements for RH SIPs.
Response: The Arkansas BART determinations for some of the units,
LTS, and RPGs are separable portions of
[[Page 14666]]
the RH SIP submittal. The EPA can approve some of the SIP submittal and
disapprove the remainder as long as the portions that are disapproved
do not affect those that are approved. This is the case in our action
partially disapproving Arkansas's RH SIP for its BART determinations
for some of the units, LTS, and RPGs and approving the remainder of the
RH SIP.
2. Comments on Interstate Transport and Visibility
Comment: Arkansas's April 2008 Interstate Transport SIP was in
accordance with the 2006 Guidance, and virtually identical to those
submitted by Arizona, Iowa, Kansas, Minnesota, Nebraska, Nevada, South
Dakota, Utah, and Wyoming. The EPA approved those states' Interstate
Transport SIPs in a timely fashion because they were consistent with
EPA's 2006 Guidance, yet ignored Arkansas's Interstate Transport SIP
until after EPA's statutory deadline to act; when it evaluated the SIP,
it was not by the criteria established in the 2006 Guidance. In an
August 2011 rulemaking to promulgate a Federal implementation plan
(FIP) for visibility improvement in New Mexico, EPA for the first time
claimed its 2006 Guidance interpreting the Good Neighbor Provision of
the CAA- on which Arkansas had based its 2008 Interstate Transport SIP-
had been published ``in error'' (76 FR 52418). In the same rulemaking,
EPA put forth a new framework for interpreting the requirements
pursuant to the visibility component of the Good Neighbor Provision.
Inconsistent with the 2006 Guidance, EPA now holds that it is possible
to determine whether a state is violating the Good Neighbor Provision,
based on what the state ``should'' have in its Regional Haze SIP. EPA's
new criteria for evaluating Interstate Transport SIP submissions is
based on the air quality modeling performed by regional planning
organizations, and on whether there are differences between emissions
reductions in a state's RH SIP and emissions reductions assumptions
derived from the air modeling performed by regional planning
organizations. Although EPA has not issued a new guidance document to
reflect what states ``should'' have in their SIPs ``at this point in
time,'' EPA has approved the visibility component of several Interstate
Transport SIPs using criteria other than the 2006 Guidance. The EPA has
not explained this regulatory inconsistency between its treatment of
Arkansas's Interstate Transport SIP versus Arizona, Iowa, Kansas,
Minnesota, Nebraska, Nevada, South Dakota, Utah, and Wyoming's
Interstate Transport SIPs. The EPA cannot hold different states to
different requirements pursuant to the visibility component of the
CAA's Good Neighbor Provision.
Response: Section 110(a)(2)(D)(i)(II) does not explicitly define
what is required in SIPs to prevent the prohibited impact on visibility
in other states nor does it explicitly define how to determine if an
action by a state is interfering with another state's specific
visibility measure. A RH SIP that provides for emissions reductions
consistent with the assumptions used in the modeling of other CENRAP
states is an appropriate way to meet a state's obligations to the other
regional planning states with regards to non-interference with another
state's visibility measures is consistent with the CAA.
On March 28, 2008, Arkansas submitted revisions to its section
110(a)(2)(D)(i) Interstate Transport SIP. In its March 28, 2008 SIP
submission, Arkansas stated it is meeting the requirements for
protection of visibility in section 110(a)(2)(D)(i)(II) by the adoption
in 2007 of Chapter 15 of APCEC Regulation No. 19, which established
Arkansas's RH program requirements. Arkansas also stated in the March
28, 2008, SIP submission, that it was not possible at that time to
assess whether there is interference with measures in the applicable
SIP for another state until the Arkansas RH SIP is submitted and
approved by EPA. Arkansas also submitted Chapter 15, Regulation 19 in
its September 9, 2008 RH SIP submittal. The Arkansas RH regulation
established a compliance timeframe of October 15, 2013, six years after
the adoption of the state regulation or within five years of the date
of the approval of the RH SIP by EPA, whichever date comes first.
Chapter 15, Regulation 19 outlined the BART determinations for sources
within Arkansas including some sources that do not require a mandatory
BART determination under the RHR. The emission reductions resulting
from the State BART determinations codified in Chapter 15, Regulation
19 are identical to the emissions reductions promised by Arkansas to
the other CENRAP member states and included in the CENRAP 2018
emissions inventory modeling to represent Arkansas's share of emission
reductions for the region. The CENRAP member states are basing their
RPGs and RH programs from this anticipated CENRAP 2018 emissions
inventory modeling. On September 23, 2008, Arkansas submitted its RH
SIP including Chapter 15, Regulation 19 to EPA for approval.
The EPA could have approved Arkansas's 110(a)(2)(D)(i) Interstate
Transport SIP in 2008 when Arkansas originally submitted the SIP.
Chapter 15, Regulation 19 originally established a compliance timeframe
of October 15, 2013, six years after the adoption of the state
regulation or within five years of the date of the approval of the RH
SIP by EPA, whichever date comes first. This provided the necessary
emission limits and enforceable mechanisms to ensure Arkansas's
apportionment of emissions reductions used in the CENRAP modeling.
However, on March 17, 2010, Arkansas granted a variance from the
October 15, 2013 deadline imposed by Regulation 19.1504(B) for sources
subject to BART listed at Regulation 19.1504(A). Instead, sources
subject-to-BART are required to comply with BART only within five years
after EPA approves Arkansas's RH SIP. This variance was never submitted
to EPA as a SIP revision. As explained in an earlier response to
comments, we are disapproving the portion of the BART compliance
provision found in the 2008 submitted Chapter 15 of Regulation No. 19
that requires compliance with BART requirements no later than six years
after the effective date of the State's regulation since Arkansas no
longer has the legal authority to enforce this provision. We are
partially approving and partially disapproving the portion of the BART
compliance provision that requires each Arkansas subject-to-BART source
to install and operate BART as expeditiously as practicable, but in no
event later than five years after EPA approval of the Arkansas RH SIP
consistent with the requirements under 40 CFR Sec. 51.308(e)(iv).
Because of our disapproval of the six year compliance timeframe in
Arkansas's 2008 submitted Chapter 15 of Regulation 19, as well as
disapproval of certain BART determinations, all of Arkansas's promised
enforceable emission reductions factored into CENRAP's 2018 emissions
inventory modeling and relied upon by fellow CENRAP member states in
developing their RPGs and RH SIPs will not be met. Thus, the
requirements for section 110(a)(2)(D)(i)(II) will not be met.
If we had acted upon the Arkansas RH SIP earlier than 2010, it
would not change EPA's determination that Arkansas's emissions are
interfering with other states' visibility programs because Arkansas's
subsequent adoption of the BART variance removing the guaranteed six
year compliance requirement would have rendered the hypothetically-
approved section
[[Page 14667]]
110(a)(2)(D)(i)(II) SIP provisions unenforceable. To address this, we
would be required to issue a SIP Call now and Arkansas would be
required to revise its SIP to correct the inadequacies by a given due
date or face sanctions for failure to timely submit a complete SIP
revision. The BART determinations we would have disapproved in our
earlier hypothetical action would no longer be required to occur by
October 2013 under the State's law regardless of EPA's disapproval
action, and therefore Arkansas emissions would continue to interfere
with other states' visibility programs. The emissions reductions
resulting from those BART determinations would not be required to
happen at all since the variance conditions BART compliance upon EPA
approval of the Arkansas RH SIP.
The EPA's partial disapproval of Arkansas's SIP addressing section
110(a)(2)(D)(i)(II) is consistent with EPA's actions on the SIPs of
Arizona, Iowa, Kansas, Minnesota, Nebraska, Nevada, South Dakota, Utah,
and Wyoming. Section 110(a)(2)(D)(i)(II) does not explicitly define
what is required in SIPs to prevent the prohibited impact on visibility
in other states. However, because the RH program requires measures that
must be included in SIPs specifically to protect visibility, EPA's 2006
Guidance recommended that RH SIP submissions meeting the requirements
of CAA section 110(a)(2)(D)(i)(II) with respect to visibility would be
sufficient. We approved the SIPs of Arizona, Iowa, Kansas, Minnesota,
Nebraska, Nevada, South Dakota, Utah and Wyoming in accordance with the
2006 Guidance in 2007 and 2008. However, our 2006 Guidance reflected
our recommendations for how states could potentially meet the section
110(a)(2)(D)(i)(II) requirement at that point in time. As of August
2006, we stated our belief that it was ``currently'' premature for
states to make a more substantive SIP submission for this element,
because of the anticipated imminent RH SIP submissions. We explicitly
stated that ``at this point in time'' in August of 2006, it was not
possible to assess whether emissions from sources in the state would
interfere with measures in the SIPs of other states. As subsequent
events have demonstrated, we were mistaken as to the assumption that
all states would submit RH SIPs in December of 2007 and mistaken as to
the assumption that all such submissions would meet applicable RH
program requirements and therefore be approved shortly thereafter.
Thus, the premise of the 2006 Guidance that it would be appropriate to
await submission and approval of such RH SIPs before evaluating SIPs
for compliance with section 110(a)(2)(D)(i)(II) was in error. Our 2006
Guidance was clearly intended to make recommendations that were
relevant at that point in time, and subsequent events have rendered it
inappropriate in this specific action.
Because of the need to act immediately on section 110(a)(2)(D)(i),
when some states did not make the RH SIP submission in whole or in
part, or did not make an approvable RH SIP submission, we have
evaluated whether states could comply with section 110(a)(2)(D)(i)(II)
by other means. Thus, we have elsewhere determined that states may also
be able to satisfy the requirements of CAA section 110(a)(2)(D)(i)(II)
with something less than an approved RH SIP, see e.g. Colorado (76 FR
22036 (April 20, 2011)), Idaho (76 FR 36329 (June 22, 2011)), and New
Mexico (76 FR 52388 (August, 22, 2011)). In other words, an approved RH
SIP is not the only possible means to satisfy the requirements of CAA
section 110(a)(2)(D)(i)(II) with respect to visibility; however such a
SIP could be sufficient.
As stated earlier, Arkansas submitted revisions to its section
110(a)(2)(D)(i) Interstate Transport SIP that addressed the
requirements for protection of Visibility in section
110(a)(2)(D)(i)(II) by enacting the Arkansas Pollution Control and
Ecology Commission regulation Chapter 15, Regulation 19 that
established Arkansas's RH program requirements and stating that it was
not possible at this time to assess whether there is interference with
measures in the applicable SIP for another state until Arkansas's RH
SIP is submitted and approved by EPA. Since EPA was no longer waiting
for the approval of a RH SIP to determine interference with another
state's visibility program, we looked at BART determinations cited in
Chapter 15, Regulation 19 and submitted in their Interstate Transport
SIP. The emission reductions resulting from the BART determinations in
Chapter 15, Regulation 19 are identical to the emissions reductions
promised by Arkansas to the other CENRAP member states and included in
the 2018 CENRAP modeling to represent Arkansas's share of emission
reductions for the region. The CENRAP member states are basing their
RPGs and RH programs on this CENRAP modeling.
As in New Mexico, we have determined that the analysis conducted by
a RPO such as CENRAP provides an appropriate means to ensure that
emissions from sources within the state are not interfering with the
visibility programs of other states, as contemplated in section
110(a)(2)(D)(i)(II). In developing their visibility projections using
photochemical grid modeling, CENRAP states assumed a certain level of
emissions from sources within Arkansas. Although we have not yet
received all RH SIPs, we understand that the CENRAP states used the
visibility projection modeling to establish their own respective RPGs.
Thus, we believe that an implementation plan that provides for
emissions reductions consistent with the assumptions used in the CENRAP
modeling will ensure that emissions from Arkansas sources do not
interfere with the measures designed to protect visibility in other
states.
For Arkansas, the EPA is disapproving certain BART determinations.
This means that some sources within Arkansas do not have an enforceable
emission reduction requirement to meet the emissions reductions
promised by Arkansas to CENRAP member states and modeled by CENRAP in
their anticipated 2018 emissions inventory because, as explained
earlier, Arkansas's enactment of a variance that conditions the BART
determinations in Chapter 15, Regulation 19 upon EPA's approval of
Arkansas RH SIP. Since Arkansas no longer has an enforceable
requirement for certain Arkansas BART determinations that EPA is
disapproving, their promised emissions reductions included in CENRAP's
modeling and the resulting 2018 emissions inventory will not be
realized even though other CENRAP member states are relying upon them
in the promulgation of their RPGs and RH SIPs. Thus, our disapproval of
some of Arkansas's BART determination means that we have to disapprove
a portion of the section 110(a)(2)(D)(i)(II) SIP submittal.
Comment: The EPA cannot at this time make a determination of
whether Arkansas RH SIP interferes with measures in another state's RH
SIP for purposes of protecting visibility since EPA has not yet
approved any other RH SIP for a state with a class area that may be
affected by Arkansas sources.
Response: We disagree that we cannot make a determination of
whether the Arkansas RH SIP interferes with measures in another state's
RH SIP for purposes of protecting visibility without approving other
states' RH SIPs that have a class I area that may be affected by
Arkansas sources. The comment is inconsistent with the objectives of
the statute to protect visibility programs in
[[Page 14668]]
other states if a state never submits an approvable RH SIP. Second,
this approach is inconsistent with the time requirements of section
110(a)(1) which specifies that SIP submissions to address section
110(a)(2)(D)(i), including the visibility prong of that section, must
be made within three years after the promulgation of a new or revised
NAAQS. While there have been delays with both RH SIP submissions by
states and our actions on those RH SIP submissions, those delays do not
support a reading of the statute that overrides the timing requirements
of the statute. At this point in time, states are required to have
submitted RH plans to EPA that establish RPGs for class I areas. This
requirement applies whether or not states have, in fact, submitted such
plans. We believe that there are means available now to evaluate
whether a state's section 110(a)(2)(D)(i)(II) SIP submission meets the
substantive requirement that it contain provisions to prohibit
interference with the visibility programs of other states, and
therefore that further delay, until all RH SIPs are submitted and fully
approved, is unwarranted and inconsistent with the key objective to
protect visibility.
Comment: There is nothing in the record to demonstrate that
Arkansas RH SIP interferes with any measure included in any other
state's SIP for the purpose of protecting visibility. Missouri is the
only state with Federal Class I areas where visibility is impacted by
the interstate transport of haze-causing emissions originating in
Arkansas, and per a consent decree, EPA is not required to act on
Missouri's Regional Haze SIP submission until June 15, 2012 (76 FR
75544).
Response: As explained in an earlier response, the EPA does not
have to wait to make a determination of interference with another
state's visibility program until EPA approves Arkansas's RH SIP or the
surrounding states' RH SIPs that have a class I area affected by
Arkansas emissions because EPA has a duty to act and an ability to make
a section 110(a)(2)(D)(i)(II) determination through means other than an
approvable RH SIP. Arkansas is a member state of CENRAP, the regional
planning committee on regional haze. Each state based its RH Plans and
RPGs based on CENRAP modeling. The CENRAP modeling was based in part on
the emissions reductions each state intended to achieve by 2018. In the
case of Arkansas, some of the emissions reductions included in the
modeling, and thus relied upon by other states, were from BART controls
on Arkansas subject to BART sources. Since, as discussed in a previous
response, compliance of Arkansas's subject to BART sources with BART
requirements is dependent upon our approval of the RH SIP, and since we
are proposing to disapprove the portion of the RH SIP which includes
some of Arkansas's BART determinations, a portion of the emission
reductions committed to by Arkansas and relied upon by other states
including Missouri will not be realized. As a consequence, Arkansas's
emissions will interfere with other states' SIPs to protect visibility.
Therefore, we are partially approving and partially disapproving the
portion of the Arkansas Interstate Transport SIP submittal that
addresses the visibility requirement of section 110(a)(2)(D)(i)(ii)
that emissions from Arkansas sources not interfere with measures
required in the SIP of any other state under part C of the CAA to
protect visibility.
Comment: To the extent that EPA's disapproval of the Arkansas RH
SIP is premised on the language in section 110(a)(2)(D)(i)(II), but is
not based on direct interference with a specific measure in another
state's RH SIP, as opposed to interference with a RH related goal in or
underlying another state's SIP as required by statute, EPA's
interpretation is contrary to the clear and express language of section
110 of the CAA.
Response: Section 110(a)(2)(D)(i)(II) does not explicitly define
what is required in SIPs to prevent the prohibited impact on visibility
in other states nor does it explicitly define how to determine if an
action by a state is interfering with another state's specific
visibility measure. A RH SIP that provides for emissions reductions
consistent with the assumptions used in the modeling of other CENRAP
states is appropriate to meet a state's obligations to the other
regional planning states with regards to non-interference with another
state's visibility measures and is consistent with the CAA. The ``2006
Guidance for SIP Submissions to Meet Current Outstanding Obligations
Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5 NAAQS''
defined that a RH SIP submittal can determine whether or not a state
SIP for 8 hour ozone or PM2.5 contain adequate provisions to
prohibit emissions that interfere with measure in other states. As
explained earlier, Arkansas chose to meet their section
110(a)(2)(D)(i)(II) requirements through their BART determinations.
These emissions reductions were promised to other CENRAP states and
included in the CENRAP modeling used by other states to develop their
RPGs. As discussed previously, by Arkansas having some of its BART
determinations disapproved today by EPA, Arkansas will no longer meet
its committed-to emission reductions that the other states are relying
on in order to meet their RH SIPs and RPGs.
Comment: The EPA's interpretation of section 110(a)(2)(D)(i)(II) is
contrary to the CAA's clear direction that each state is to determine
its own emission limits, schedules of compliance, and other measures
for sources in that state for purposes of visibility protection under
169A. The EPA's interpretation would effectively give one state the
power to control another state's RH SIP decisions including its BART
determinations.
Response: As explained earlier, Arkansas elected to have its
promised emission reductions used in the CENRAP modeling and relied
upon by other CENRAP member states. These emission reductions Arkansas
committed to are reflected in the Arkansas RH SIP submittal from BART
controls on Arkansas subject to BART sources. An approved RH SIP that
includes emissions limits, schedules of compliance, and other measures
for sources in that state for purposes of visibility protection under
169A is not the only possible means to satisfy the requirements of CAA
section 110(a)(2)(D)(i)(II). States can meet section
110(a)(2)(D)(i)(II) by adopting emissions limits that were promised as
part of the regional planning process. A RH SIP submittal including
BART controls on subject to BART sources can also meet the requirements
of section 110(a)(2)(D)(i)(II). Arkansas chose to take both of these
approaches by adoption of their promised CENRAP emissions reductions in
their BART determinations as submitted in their RH SIP under Arkansas
Chapter 15, Regulation 19.
This approach does not give one state the power to control another
state's RH SIP decisions including its BART determinations. Each
individual state member of the regional planning committee has the
autonomy to make their own decisions on how they are going to reduce
their state's emissions and contribute to the overall group's effort to
reduce RH in the region. We are abiding by Arkansas's decision to have
its BART determinations be representative of promised emission
reductions relied upon by other states. As discussed previously, by us
disapproving some of Arkansas's BART determinations, the relied-upon
emissions reductions used in the development of other CENRAP member
state RPGs and RH SIPs will not occur. Therefore, we are partially
approving and partially disapproving the portion of the Arkansas
Interstate Transport SIP
[[Page 14669]]
submittal that addresses the visibility requirement of section
110(a)(2)(D)(i)(ii) that emissions from Arkansas sources not interfere
with measures required in the SIP of any other state under part C of
the CAA to protect visibility.
Comment: Based upon EPA's 2006 Interstate Transport Guidance,
conclusions regarding whether emissions from any one state could
interfere with measures of neighboring states to protect visibility can
only be reached when a neighboring state's RH SIP has been approved.
This has not occurred. In addition, the 2006 Interstate Transport
Guidance provides that a state satisfies the requirements of the
visibility component of the interstate transport SIPs by submitting an
Interstate Transport SIP confirming that it is not possible at the time
of that submission to assess whether a state's emissions would
interfere with measures required to protect visibility in the
applicable SIP for another state and submit a RH SIP at a later date
and approved by EPA. This is what Arkansas did. In keeping with the
2006 Guidance, EPA should instead approve Arkansas's 2007 Interstate
Transport SIP and confine its action on visibility impairment to
proceeding on the state's RH SIP and not act on section
110(a)(2)(D)(i)(II) until the state's RH SIP is approved.
Response: Our guidance on submissions in August of 2006 states that
``at this time point and time,'' it is not possible to assess whether
emissions from sources in the state would interfere with measures in
the SIPs of other states until RH SIPs are submitted and approved. At
the time of the writing of the 2006 Guidance, we mistakenly assumed
that all states would submit RH SIPs in December of 2007, as required
by the RHR, and mistakenly assumed that all such submissions would meet
applicable RH program requirements and therefore be approved shortly
thereafter. This did not happen. Thus, our premise, as stated in the
2006 Guidance, that it would be appropriate to await submission and
approval of such RH SIPs before evaluating SIPs for compliance with
section 110(a)(2)(D)(i)(II), was in error. This is especially true in
light of the timing requirements of section 110(a)(1) which specifies
that SIP submissions to address section 110(a)(2)(D)(i), including the
visibility prong of that section, must be made within three years after
the promulgation of a new or revised NAAQS. Our 2006 Guidance was
clearly intended to make recommendations that were relevant at that
point in time, and subsequent events have made it unsuitable to delay
this action regarding Arkansas's emissions interfering with other
state's visibility measures before all RH SIPs affected by Arkansas
emissions are approved. We must therefore act upon Arkansas's
submission in light of the actual facts, and in light of the statutory
requirements of section 110(a)(2)(D)(i). In order to evaluate whether
the state's SIP currently in fact contains provisions sufficient to
prevent the prohibited impacts on the required programs of other
states, we are obligated to consider the current circumstances and
investigate the levels of controls at Arkansas sources and whether
those controls are or are not sufficient to prevent such impacts. Here,
as explained earlier, Arkansas promised emission reductions from BART
eligible sources and had those emissions reductions included in the
CENRAP modeling that other states are relying on in developing their
RPGs and RH SIPs. Because we are disapproving some of Arkansas's BART
determinations, as previously discussed, Arkansas will not meet its
CENRAP emission reduction commitments relied upon by other states.
Thus, Arkansas's sources will interfere with other state's visibility
measures.
Comment: The EPA's proposed rule is incorrect in its conclusion
that the 1997 promulgation of new or revised NAAQS for PM2.5
and ozone created an obligation in the part of Arkansas (or any other
state) to submit a section 110(a)(2)(D)(i)(II) SIP revision with
respect to visibility protection. Promulgation or revision of any NAAQS
is entirely unrelated to the Part C visibility SIP requirements. The
only additional SIP obligations with respect to section
110(a)(2)(D)(i)(II) and new or revised NAAQS are NAAQS attainment and
maintenance. No obligation to address Part C visibility components of a
SIP arises merely as a result of NAAQS promulgation or revision. The
EPA should conclude that the promulgation of revised ozone and
PM2.5 NAAQS creates no obligation on the part of any state
to submit any section 110(a)(2)(D)(i)(II) SIP revision with respect to
visibility protection.
Response: We disagree. Reduced visibility is an effect of air
pollution, and the emissions of PM2.5 and ozone and its
precursors can contribute to visibility impairment. SIP planning for
the control of these pollutants on the promulgation of a new NAAQS will
therefore implicate control measures and issues relating to visibility.
CAA section 110(a)(1) therefore requires implementation plans submitted
in the wake of a newly promulgated NAAQS to address whether the state
has adequate provisions to prevent interference with the efforts of
other states to protect visibility. The obligation to address Part C
visibility components expressly follows from the language of section
110(a) concerning when plans must be submitted and what each
implementation plan must contain.
Comment: The EPA mistakenly refers to the ``Interstate Transport
SIP'' in its proposed disapproval of a portion of the Arkansas
Interstate Transport SIP that addresses the visibility requirement of
section 110(a)(2)(D)(i)(II) that emissions from Arkansas sources not
interfere with other state's visibility protection programs, but it is
more accurately referred to as an ``Infrastructure SIP.'' In addition,
the EPA failed to include in its proposed disapproval that it did not
immediately require the state to make these SIP submittals. When EPA
was sued for not having these submittals, the EPA issued its finding of
failure notices to all states. If these SIPs had been required and
submitted upon promulgation of the 1997 revision to the NAAQS for 8-
hour ozone, it is unlikely that the RH program would have been
considered an element of a typical ``Infrastructure SIP.''
Response: Interstate Transport SIPs and Infrastructure SIPs address
SIP requirements under section 110 under the CAA which requires states
to adopt and submit to EPA a SIP that includes elements 110(a)(2)(A)
through (M) within three years after the promulgation or revision of a
NAAQS. The EPA has requested states to submit their SIP separately
addressing Section 110 Infrastructure requirements and Section 110
Interstate Transport requirements. However, this does not have a legal
effect on the contents of the SIP submittal. Section 110(a)(2)(D)(i)
elements are reviewed at the same legal standard whether the section
110(a)(2)(D)(i) elements are submitted as part of an Interstate
Transport SIP or an Infrastructure SIP submittal.
At issue is Arkansas's requirement to submit a SIP that addresses
the 1997 revision to the NAAQS for 8-hour ozone and PM2.5.
On July 18, 1997, the EPA promulgated new NAAQS for eight-hour ozone
and for PM2.5. Section 110(a)(1) of the CAA requires states
to submit new SIPs to provide for the implementation, maintenance, and
enforcement of new or revised NAAQS. SIPs for a new or revised NAAQS
must contain adequate provisions to address interstate transport of air
pollution, pursuant to section 110(a)(2)(D)(i). The Clean Air Act
requires states to submit SIPs within three years of promulgation of a
new or revised NAAQS. This duty to submit a SIP that addresses NAAQS
revisions
[[Page 14670]]
pursuant to section 110(a)(2)(D)(i) is an affirmative obligation under
the CAA and is not dependent upon whether a state is notified of its
obligation or issued a finding of failure to act as EPA did in 2005.
If Arkansas had acted promptly in 1997 to address section
110(a)(2)(D)(i) for ozone and PM2.5, Arkansas would still
have had to consider RH in its SIP submittal. The visibility provisions
of the CAA gave notice to the States that they needed to address
interstate transport of visibility impairing pollutants through RH.
Back in 1977 when Congress enacted the visibility provisions of the
CAA, Congress expressed concern with ``haze'' from ``regionally
distributed sources \228\ '' and concluded that additional provisions
were needed to ``remedy the visibility problem.'' Congress amended the
visibility provisions in 1990 to more specifically address interstate
transport of air pollutants and RH. Section 169B created visibility
transport regions to address the interstate transport of air pollutants
from one or more states that contribute significantly to visibility
impairment in class I areas. Under CAA 169B, each visibility transport
region would have a visibility transport commission that was required
to study adverse impacts on visibility and recommend regulations to
address long range strategies for addressing regional haze. In keeping
with the visibility provisions of the CAA, EPA has determined that
states may be able to satisfy the requirements of CAA section
110(a)(2)(D)(i)(II) with a state relying on the analysis conducted by a
visibility transport commission to ensure that emissions from sources
within the state are not interfering with the visibility programs of
other states, as contemplated in section 110(a)(2)(D)(i)(II) or an
approved RH SIP.
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\228\ H.R. Rep. No. 95-294 at 204 (1977).
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Comment: It is an abuse of administrative procedures for EPA to use
its proposed disapproval of the BART elements of the Arkansas RH SIP as
the basis for not approving a previous SIP submittal upon which it
should have already acted. There is no reason to disapprove any portion
of the previous submittal as the language stating that Arkansas would
rely on the RH regulations to satisfy the section 110(a)(2)(D)(i)(II)
is still valid. Therefore, EPA should approve the Arkansas Interstate
Transport SIP.
Response: As previously discussed, we are acting on section
110(a)(2)(D)(i)(II) based on our disapproval of some of the BART
determinations of the RH SIP submittal since it was Arkansas that
represented to other CENRAP member states, and included in the CENRAP
modeling, emissions reductions from BART controls on Arkansas sources
subject to BART. CENRAP states have relied on those representations in
developing their RH SIPs and RPGs. If Arkansas cannot deliver those
emission reductions relied on by other states, those emission
reductions will interfere with the CENRAP member state visibility
programs. While the Arkansas Interstate Transport SIP statement that it
relies on the RH regulations to satisfy the section 110(a)(2)(D)(i)(II)
is still true, we are obligated to disapprove a portion of the
Interstate Transport SIP because we are finding that Arkansas is not
satisfying its obligations under the RH regulations and causing
emissions from Arkansas to interfere with other states' visibility
programs.
Comment: The EPA should approve the Arkansas Interstate Transport
SIP. In developing their RH SIPs and RPGs, Arkansas and potentially
impacted states collaborated through the CENRAP. Emission reductions
for the CENRAP states are scheduled to be fully realized by 2018.
Presumably, EPA will have approved some version of an Arkansas SIP by
2013, and any such submittal would have at least the amount of BART
reductions provided for in current SIP submittals. With a compliance
schedule of no more than 5 years after EPA approval, these reductions
would still be realized by 2018.
Response: Arkansas is assuming that EPA will have approved
Arkansas's SIP provisions by 2013 that address the promised BART
emissions reductions to the CENRAP. The EPA cannot base decisions on
potential future actions. Our rulemaking is limited to the events that
have occurred at the time of rulemaking. It is not a foregone
conclusion that Arkansas will submit and EPA will have approved SIP
provisions with the promised emissions reductions by 2013, much less
that those emissions reductions would be realized by 2018.
Comment: In April 2008, Arkansas submitted an Interstate Transport
SIP revision to address its Good Neighbor CAA obligations triggered by
the 1997 8-hour ozone and PM2.5 NAAQS. Section 110(k)(1)(B)
of the CAA requires EPA to act on a SIP revision within 18 months.
EPA's proposal does not address why EPA violated the statutory deadline
by waiting nearly two years after the deadline in the CAA to take
action on Arkansas's April 2008 Interstate Transport SIP submission.
Response: We acknowledge that we are late in acting on Arkansas's
Interstate Transport SIP revisions regarding its ``Good Neighbor'' CAA
obligations triggered by the 1997 8-hour ozone and PM2.5
NAAQS. We are working diligently to address all of these SIP submittals
as quickly and expeditiously as possible. With this action today
finalizing our partial approval and partial disapproval of Arkansas's
Interstate Transport SIP addressing impairment of other states'
visibility measures, we are fulfilling our statutory obligation under
section 110(a)(2)(D)(i)(II) of the CAA.
Comment: Like Oregon and Colorado, Arkansas submitted an Interstate
Transport SIP predicated on a RH SIP to address section
110(a)(2)(D)(i)(II). However, EPA has treated Arkansas differently that
Oregon and Colorado in meeting the requirements of section
110(a)(2)(D)(i)(II). For Oregon, despite the discrepancies between what
was assumed by the RPO and the emission reductions included in Oregon's
RH SIP, EPA approved the visibility component of Oregon's Interstate
Transport SIP after reviewing the RPO's photochemical modeling
emissions projections finding that the emissions reductions included in
Oregon's RH SIP are ``approximately equal'' to those assumed by
neighboring states. For Colorado, in evaluating the visibility
component of Colorado's Interstate Transport SIP, EPA did not consider
Colorado's RH SIP because it had not been approved. Instead, EPA
conducted a ``weight-of-evidence'' evaluation to assess the increase in
Colorado sulfates and nitrates emissions above what neighboring states
assumed, and concluded that ``Colorado has a minimal impact on
visibility'' at Class I areas in neighboring states. There is no
indication that EPA performed such analyses in its evaluation of the
visibility component of the Arkansas Interstate Transport SIP, and
instead held that any discrepancy between the emissions reductions
included in a state's RH SIP and the emissions reductions assumed by
neighboring states is equivalent to ``interfering'' with the measures
of other states to protect visibility. This is similar to EPA's
interpretation of the visibility component of the Good Neighbor
Provision in its evaluations of the Interstate Transport SIPs for New
Mexico, Oklahoma, and North Dakota. The EPA has failed to identify a
threshold of deviation from the CENRAP assumptions in a state's RH SIP
in order to trigger disapproval of visibility provisions of a state's
[[Page 14671]]
Interstate Transport SIP. In addition, the EPA has also failed to
address why the criteria EPA used to evaluate the visibility component
of Arkansas's Interstate Transport SIP is different from that used to
evaluate the Interstate Transport SIPs of other states, in particular
those of Oregon and Colorado.
Response: The EPA disagrees that our proposed action on the
visibility component of Arkansas's Interstate Transport SIP is
inconsistent with our actions on the Interstate Transport SIPs of
Oregon and Colorado. As described in the comment, EPA approved the
visibility component of Oregon's Interstate Transport SIP after
reviewing the RPO's photochemical modeling emissions projections and
finding that the emissions reductions included in Oregon's RH SIP are
``approximately equal'' to those assumed by neighboring states. In the
case of Arkansas, we are disapproving nearly all of the State's BART
determinations for SO2 and NOX (and some PM)
emissions limits that Arkansas promised as part of its membership to
the CENRAP. Those emissions limits have been included in the 2018
CENRAP modeling, and other states are relying on this modeling in
developing their RPGs and RH SIPs. However, as discussed previously,
with our disapproval, these anticipated reductions will not be taking
place and thus the emissions of SO2, NOX and PM
from Arkansas will interfere with other states' visibility programs.
With the disapproval of certain BART determinations and Arkansas's
promised BART emissions reductions included in the CENRAP process,
there is a large discrepancy between the RPO's photochemical modeling
emissions projections (which is reflective of the emissions reductions
other states relied on in their RH SIPs) and the emissions reductions
that will actually be taking place (i.e. the State's BART
determinations that we find satisfy the RH requirements).
The comment points out that EPA did not consider Colorado's RH SIP
in evaluating the visibility component of Colorado's Interstate
Transport SIP because it had not been approved yet. EPA points out that
at the time we approved Colorado's Interstate Transport SIP, we had not
taken any kind of action on the Colorado RH SIP. In fact, we haven't
taken any kind of action on the Colorado RH SIP to date. Therefore, in
order to take an informed and appropriate action on the Colorado
Interstate Transport SIP, EPA conducted a ``weight-of-evidence''
evaluation to assess the increase in Colorado sulfates and nitrates
emissions above what neighboring states assumed. Based on the results
of that evaluation, we concluded that Colorado has a minimal impact on
visibility at Class I areas in neighboring states. This is not the case
with Arkansas. As explained in Appendix A to the TSD for our proposed
rulemaking on the Arkansas RH SIP, the CENRAP's photochemical modeling
clearly shows that Arkansas emissions are causing visibility impairment
at the Hercules Glades and Mingo Class I areas in Missouri. As
explained above, we proposed to disapprove nearly all of Arkansas's
SO2 and NOX (and some PM) BART determinations. In
light of the large number (and percentage) of SO2 and
NOX emissions reductions that other states relied on, we do
not believe that it is necessary at this time to do any other analysis
to further support our partial disapproval of the visibility component
of Arkansas's Interstate Transport SIP since Arkansas has promised
emissions reductions for subject to BART sources, and included them in
the CENRAP modeling that other states are relying on in developing
their RPGs and RH SIPs, but the emissions reductions for the
disapproved BART determinations will not occur.
Comment: None of the BART determinations in the Arkansas RH SIP
should be approved by EPA, and accordingly EPA should fully disapprove
the Arkansas Interstate Transport SIP for visibility protection. In
2018, the contribution from Arkansas sources to visibility impairment
in other states (including Missouri and Oklahoma) are projected to
increase from 2002 levels. In recognition of this, the State of
Oklahoma asked for additional emission reductions from Arkansas
sources, but Arkansas did not agree that any further emissions
reductions were necessary (2007 Letter from ADEQ to ODEQ, Appendix 11.2
of Arkansas RH SIP). Therefore, it is unlikely that the BART emission
limits adopted by Arkansas are sufficient to ensure that sources in
Arkansas will not interfere with Oklahoma's ability to ensure
reasonable progress toward attaining the national visibility goal at
the Wichita Mountains Class I area.
Response: Arkansas proposed to comply with the requirements of the
Interstate Transport SIP for visibility protection through reductions
in emissions from BART eligible sources. This is in keeping with the
CAA and is acceptable to EPA. As explained above, we are partially
disapproving Arkansas's Interstate Transport SIP for visibility
protection because Arkansas proposed to meet these requirements through
the BART determinations that we are disapproving and therefore the
relied-upon emissions reductions will not occur. The comment is right
that in 2018, the contribution from Arkansas sources to visibility
impairment in other states (including Oklahoma and Missouri) is
projected to increase from 2002 levels though minimally. However, those
projected emissions increases are due to Arkansas's planned building of
new facilities which will emit visibility impairing pollutants. The EPA
does note that one of the proposed plants included in this projection
has recently been cancelled and thus Arkansas projected emissions
increases for 2018 will be less than projected in their RH SIP.
For purposes of noninterference with other states' visibility
programs, Arkansas met with other regional states and promised that it
would contribute a certain portion of the emissions reductions to
address RH for the region. Although Oklahoma initially believed that
emissions from Arkansas sources are impacting visibility at Wichita
Mountains and that it might be necessary for Arkansas to commit to
additional emissions reductions, Arkansas responded to ODEQ's concerns
with a letter dated August 17, 2007, explaining that based on
photochemical modeling, ADEQ had calculated that the total visibility
impact from all sources in Arkansas at Wichita Mountains is 0.2
dv.\229\ Furthermore, in section X.A. of the Oklahoma RH SIP submitted
to EPA, ODEQ references the August 17, 2007 letter sent by ADEQ and
states that it is in agreement with the projected emissions reductions
from Arkansas and all other states with which it consulted with regard
to visibility impairment at Wichita Mountains. For Missouri's
consultation with Arkansas regarding emissions reductions, Arkansas and
Missouri met in a joint consultation (see our TSD and Arkansas RH SIP),
where both states agreed upon the amount of emission reductions each
state would provide in order for both states to meet the visibility
requirements of the CAA. All the states Arkansas consulted with
accepted Arkansas's committed emissions reductions and have based their
RPGs and RH SIPs accordingly with the idea that regional states can
attain natural visibility conditions for class I areas within their
boundaries by 2064 based off of this information. This
[[Page 14672]]
is consistent with the intent of the visibility program under the CAA
to allow the states under a regional planning committee to determine
the best way to address visibility impairment for the region.
Therefore, we find that partially approving and partially disapproving
Arkansas's Interstate Transport SIP with regards to interference with
other states' visibility measures is appropriate since Arkansas,
working in conjunction with other states in the regional planning
organization, committed to certain emissions reductions of subject to
BART sources which Arkansas can no longer meet because we are
disapproving a portion of Arkansas's BART determinations, and therefore
the relied-upon emissions reductions will not occur.
---------------------------------------------------------------------------
\229\ See letter from Mike Bates, Air Division Director,
Arkansas Department of Environmental Quality, to Eddie Terrill, Air
Division Director, Oklahoma Department of Environmental Quality,
dated August 17, 2007. This letter is found in Appendix 10.3 of the
Arkansas RH SIP.
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H. Other Comments
Comment: EPA did not propose a FIP concurrently with its proposal
to partially disapprove the Arkansas RH SIP, thus being inconsistent
with what EPA has recently proposed for other states. When EPA proposed
to partially approve and partially disapprove the RH SIPs of North
Dakota and Oklahoma, at the same time EPA proposed FIP requirements for
the components of the RH SIP that EPA proposed to disapprove (see 76 FR
58570 and 76 FR 16168). Arkansas submitted its RH SIP earlier than most
other states, including at least 18 months before North Dakota and
Oklahoma, yet EPA did not propose a FIP concurrently with its proposed
partial disapproval of the Arkansas RH SIP and it appears it will be
several years before the facilities in the State that are contributing
to regional haze install pollution controls and reduce emissions. The
residents and visitors to the State of Arkansas are getting the short
shrift from EPA compared to the residents and visitors of these other
states. This is very important considering that the majority of
Arkansas's coal-fired power plants have absolutely no SO2
controls, and at this point it is not clear that the units will be
subject to any regulations other than BART that would require the
installation of scrubbers. EPA should not delay any longer in proposing
a FIP to address RH in Arkansas.
Response: While we appreciate the concerns described in the comment
regarding visibility impairment in Arkansas's Class I areas, we note
that the CAA section 110(c) requires that EPA promulgate a FIP at any
time within 2 years after EPA disapproves a SIP in whole or in part. As
explained in our proposed rulemaking, at this time we are not
promulgating a FIP for the portions of the Arkansas RH SIP we are
disapproving because ADEQ has expressed its intent to revise the
Arkansas RH SIP by correcting the deficiencies in the SIP. We are
electing to not promulgate a FIP at this time in order to provide
Arkansas time to correct these deficiencies. While EPA has promulgated
FIPs concurrently to address the deficiencies of states' RH SIPs, there
is no statutory requirement for EPA to do so. Unless we receive a SIP
revision from the State that addresses the flaws we identified in our
proposed rulemaking and in this final action and satisfies all the
regulatory and statutory requirements and we approve it within 2 years
of our final partial disapproval of the Arkansas RH SIP, EPA is
required to promulgate a FIP within 2 years of our final partial
disapproval of the SIP to address the components of the SIP we
disapproved.
Comment: The State is required to document the technical basis,
including modeling, monitoring, and emissions information, on which the
State is relying to determine its apportionment of emission reduction
obligations necessary for achieving reasonable progress in each
mandatory Class I Federal area it affects (see 40 CFR
51.308(d)(3)(iii)). Arkansas relied on the CENRAP modeling and emission
inventories to meet this requirement, and therefore Arkansas itself did
not provide much of the technical basis for the modeling and emission
inventories. EPA has posted some of the relevant CENRAP documents to
its docket for the Arkansas RH rulemaking, but not all relevant
documents have been provided. There is one document of facility-
specific emission projections for 2018 we wanted to evaluate but were
unable to locate. Only graphical representations of each state's
emissions by source category are provided in the Technical Support
Document for the CENRAP modeling. The CENRAP Web site is no longer
being maintained and no emission inventory documents are available on
that site. We contacted EPA Region 6 to obtain this document, but EPA
was unable to locate it. A review of the 2018 facility-specific
emission inventory is imperative in reviewing the 2018 modeling
projections and the LTS for Arkansas as well as the LTS of other CENRAP
states to determine if the LTS for those states include enforceable
emission limitations that correspond to the 2018 emissions projections
for each facility. A review of the 2018 facility-specific emissions
inventory is also necessary to determine whether all visibility-
impairing sources were modeled and whether the emissions modeled for
all sources were reasonable given the emission reduction requirements
on the books and forthcoming by 2018. EPA should not approve the
Arkansas RH SIP because it does not include the technical basis that
Arkansas is relying on to show that it will achieve reasonable progress
towards reaching natural background visibility conditions at its Class
I areas. Also, EPA should not be proposing to find the 2018 emissions
inventory ``acceptable,'' when it does not have the facility-specific
emission projections for 2018.
Response: The full reference to 40 CFR 51.308(d)(3)(iii) is the
following:
``The State must document the technical basis, including
modeling, monitoring and emissions information, on which the State
is relying to determine its apportionment of emission reduction
obligations necessary for achieving reasonable progress in each
mandatory Class I Federal area it affects. The State may meet this
requirement by relying on technical analyses developed by the
regional planning organization and approved by all State
participants. The State must identify the baseline emissions
inventory on which its strategies are based. The baseline emissions
inventory year is presumed to be the most recent year of the
consolidated periodic emissions inventory.''
A full reading of 40 CFR 51.308(d)(3)(iii) demonstrates that the
requirement for the State to document the technical basis on which it
is relying to determine its apportionment of emission reduction
obligations necessary for achieving reasonable progress in each
mandatory Class I Federal area it affects is to ensure that potentially
affected states have all the technical information they need to be able
to determine whether they agree with the State's apportionment of
emission reduction obligations. As pointed out in the comment, Arkansas
elected to meet the requirement under 40 CFR 51.308(d)(3)(iii) to
document the technical basis for its RH SIP by relying on technical
analyses developed by the CENRAP and approved by all State
participants. Through the CENRAP process, all affected states agreed
with Arkansas's apportionment of emission reduction obligations and
these were included in the CENRAP 2018 emissions inventory modeling on
which all the CENRAP member states are relying on to develop their RPGs
and LTS. Since the technical analyses developed by the RPOs are often
very extensive, it would be unreasonable to expect states to include
all these documents as part of their RH SIPs. Since Arkansas relied on
technical analyses developed by the CENRAP and approved by all State
participants and properly identified the baseline
[[Page 14673]]
emissions inventory on which its strategies are based, the State
satisfied the requirements under 40 CFR 51.308(d)(3)(iii). This is
supported by 2018 CENRAP modeling data results indicating that two
Class I areas outside of Arkansas (Missouri Class I areas--Mingo
Wilderness Area and Hercules Glades Wilderness Area), where Arkansas
sources have a significant impact, are projected to achieve the RPGs in
2018.
During the comment period, we provided the commenter with most of
the information requested (including all the emission summary
spreadsheet files we had), with the exception of two emission inventory
summary files. Unfortunately, the document of facility-specific
emission projections for 2018 referenced in the comment consists of two
SMOKE electronic emissions processing reports that can be viewed in a
very large electronic database using database software. However, these
reports are too large to export to a spreadsheet, as had been done to
generate other reports within the database, because it includes the
daily point emissions by facility projected in 2018 for all the
facilities in the CENRAP states. We had most of the SMOKE emission
reports, which we did provide to the commenter's contractor. We did not
consider these few missing emission reports to be critical or necessary
to our review because we realized for reasons outside of the data
contained in the missing reports that we would have to propose partial
disapproval of the Arkansas RH SIP (including LTS and BART
determinations). It is not practical to require that the State submit
or include every possible electronic file that supports the RPO
modeling as this is several Terabytes of data and most of the data has
been submitted or is posted on Web sites or ftp sites or available on
request. We believe this is the only practical way to address the large
volumes of data necessary for the development of multistate regional
haze modeling analysis. Unfortunately, as noted in the comment, the
CENRAP Web site is no longer being maintained and no emission inventory
documents are available on that site. In general, the former CENRAP
members have been very supportive in providing information when
requested. It was only due to specific issues that we were not able to
provide the information for these two SMOKE emission reports when
requested. We will continue to work to address this issue as we work
with Arkansas on development of an approvable Regional Haze SIP. Again
we do not believe that these particular files were critical or
necessary to our conclusion that the Arkansas SIP should be partially
approved and partially disapproved.
I. Comments Requesting an Extension to the Public Comment Period
We received several comments requesting that the comment period be
extended by an additional 60 days.
Response: Originally the comment period for our proposal was
scheduled to close on November 16, 2011. In response to requests we
extended the public comment period to December 22, 2011. In doing so,
we took into consideration how an extension might affect our ability to
consider comments received on the proposed action and still comply with
the terms of a consent decree we have with Sierra Club.\230\
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\230\ Sierra Club v. Lisa Jackson, Case No. 1:10-CV-02112-JEB.
---------------------------------------------------------------------------
IV. 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 act on state law
as meeting Federal requirements and does not impose additional
requirements beyond those imposed by state law.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is
therefore not subject to review under Executive Orders 12866 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,
because this SIP action under section 110 of the CAA will not in-and-of
itself create any new information collection burdens but simply
approves or disapproves certain State requirements for inclusion into
the SIP. Burden is defined at 5 CFR 1320.3(b).
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements 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 not-for-profit enterprises, 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 today's rule on small
entities, I certify that this action will not have a significant impact
on a substantial number of small entities. This rule does not impose
any requirements or create impacts on small entities. This SIP action
under section 110 of the CAA will not in-and-of itself create any new
requirements but simply approves or disapproves certain State
requirements for inclusion into the SIP. Accordingly, it affords no
opportunity for EPA to fashion for small entities less burdensome
compliance or reporting requirements or timetables or exemptions from
all or part of the rule. The fact that the CAA prescribes that various
consequences (e.i. emission limitations) may or will flow from this
action does not mean that EPA either can or must conduct a regulatory
flexibility analysis for this action. Therefore, this action will not
have a significant economic impact on a substantial number of small
entities.
D. Unfunded Mandates Reform Act
This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for State, local, or tribal governments or the private
sector. EPA has determined that the disapproval action 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. This action merely approves or disapproves pre-
existing requirements under State or local law, and imposes no new
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
[[Page 14674]]
E. Executive Order 13132, Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that 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.''
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 approves or
disapproves certain State requirements for inclusion into the SIP and
does not alter the relationship or the distribution of power and
responsibilities established in the CAA. Thus, Executive Order 13132
does not apply to this action.
F. Executive Order 13175, Coordination With Indian Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP
submittals EPA is approving or disapproving would not 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.
Thus, Executive Order 13175 does not apply to this action.
G. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997)
as applying only to those regulatory actions that concern health or
safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
action is not subject to Executive Order 13045 because it because it is
not an economically significant regulatory action based on health or
safety risks subject to Executive Order 13045 (62 FR 19885, April 23,
1997). This SIP action under section 110 of the CAA will not in-and-of
itself create any new regulations but simply approves or disapproves
certain State requirements for inclusion into the SIP.
H. Executive Order 13211, Actions 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(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. NTTAA directs EPA to
provide Congress, through OMB, explanations when the Agency decides not
to use available and applicable voluntary consensus standards.
The EPA believes that this action is not subject to requirements of
section 12(d) of NTTAA because application of those requirements would
be inconsistent with the CAA.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA lacks the discretionary authority to address environmental
justice in this action. In reviewing SIP submissions, EPA's role is to
approve or disapprove state choices, based on the criteria of the CAA.
Accordingly, this action merely approves or disapproves certain State
requirements for inclusion into the SIP under section 110 of the CAA
and will not in-and-of itself create any new requirements. Accordingly,
it 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.
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. 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). This rule will be effective on April 11, 2012.
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 May 11, 2012. 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 protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Sulfur
dioxides, Visibility, Interstate transport of pollution, Regional haze,
Best available retrofit technology.
Dated: February 13, 2012.
Al Armendariz,
Regional Administrator, Region 6.
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
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1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
[[Page 14675]]
Subpart E--[Amended]
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2. Section 52.170 is amended:
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a. In paragraph (c), under the first table entitled ``EPA-Approved
Regulations in the Arkansas SIP,'' by revising the heading for Chapter
15 under Regulation No. 19 to read ``Regional Haze''; by revising the
entry for Reg. 19.1501; and by adding new entries in numerical order
for Reg. 19.1502, Reg. 19.1503, Reg. 19.1504, Reg. 19.1505, Reg.
19.1506, and Reg. 19.1507.
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b. In paragraph (e), under the third table entitled ``EPA-Approved Non-
Regulatory Provisions and Quasi-Regulatory Measures in the Arkansas
SIP'', by adding at the end of the table a new entry for ``Interstate
Transport for the 1997 ozone and PM2.5 NAAQS'' immediately
followed by a new entry for ``Regional Haze SIP''.
The amendments read as follows:
Sec. 52.170 Identification of plan.
* * * * *
(c) * * *
EPA-Approved Regulations in the Arkansas SIP
--------------------------------------------------------------------------------------------------------------------------------------------------------
State approval/
State citation Title/subject effective date EPA approval date Explanation
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulation No. 19: Regulations of the Arkansas Plan of Implementation for Air Pollution Control
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Chapter 15: Regional Haze
--------------------------------------------------------------------------------------------------------------------------------------------------------
Reg. 19.1501....................... Purpose............... 1/25/2009........... 3/12/2012 [Insert FR ..............................................
page number where
document begins].
Reg, 19.1502....................... Definitions........... 1/25/2009........... 3/12/2012 [Insert FR ..............................................
page number where
document begins].
Reg. 19.1503....................... BART Eligible Sources. 1/25/2009........... 3/12/2012 [Insert FR ..............................................
page number where
document begins].
Reg. 19.1504....................... Facilities Subject-to- 1/25/2009........... 3/12/2012 [Insert FR Under (A): The identification of sources
BART. page number where subject to BART is approved, except for not
document begins]. identifying the 6A and 9A Boilers at the
Georgia Pacific Crossett Mill, which we find
are subject to BART.
Under (B): The requirement for BART
installation and operation as expeditiously
as practicable, but no later than 5 years
after EPA approval is partially approved and
partially disapproved, such that the partial
approval is for the BART determinations we
are approving and the partial disapproval is
for the BART determinations we are
disapproving; and the requirement for BART
installation and operation no later than 6
years after the effective date of the State
regulation is disapproved.
Reg. 19.1505....................... BART Requirements..... 1/25/2009........... 3/12/2012 [Insert FR The following portions of Reg. 19.1505 are
page number where disapproved: (A)(1) and (2), (B), (C), (D)(1)
document begins]. and (2), (E), (F)(1) and (2), (G)(1) and (2),
(H), (I)(1) and (2), (J)(1) and (2), (K),
(L), (M)(1), and (N).
Reg. 19.1506....................... Compliance Provisions. 1/25/2009........... 3/12/2012 [Insert FR The requirement to demonstrate compliance with
page number where the BART limits listed in Reg. 19.1505 (A)(1)
document begins]. and (2), (B), (C), (D)(1) and (2), (E),
(F)(1) and (2), (G)(1) and (2), (H), (I)(1)
and (2), (J)(1) and (2), (K), (L), (M)(1),
and (N) is disapproved.
Reg. 19.1507....................... Permit Reopening...... 1/25/2009........... 3/12/2012 [Insert FR ..............................................
page number where
document begins].
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * *
(e) * * *
* * * * *
[[Page 14676]]
EPA-Approved Non-Regulatory Provisions and Quasi-Regulatory Measures in the Arkansas SIP
----------------------------------------------------------------------------------------------------------------
State
Applicable submittal/
Name of SIP provision geographic or effective EPA approval date Explanation
nonattainment area date
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Interstate Transport for the 1997 Statewide........... 3/28/2008 3/12/2012 [Insert FR Noninterference with
ozone and PM2.5 NAAQS page number where measures required
(Noninterference with measures document begins]. to protect
required to protect visibility visibility in any
in any other State). other State
partially approved
3/12/12.
Regional Haze SIP................ Statewide........... 9/23/2008, 3/12/2012 [Insert FR The following
8/3/2010 page number where portions are
document begins]. partially approved
and partially
disapproved:
(a) Identification of (a) Identification
affected Class I areas. of best available
retrofit technology
(BART) eligible
sources and subject
to BART sources;
(b) Determination of baseline (b) requirements for
and natural visibility best available
conditions. retrofit technology
(BART);
(c) Determination of the (c) the Arkansas
Uniform Rate of Progress. Regional Haze Rule;
and
(d) Reasonable progress goal (d) Long Term
consultation and long term Strategy. (See Sec.
strategy consultation. 52.173(a)).
(e) Coordination regional
haze and reasonably
attributable visibility
impairment.
(f) Monitoring Strategy and
other implementation
requirements.
(g) Commitment to submit
periodic Regional Haze SIP
revisions and periodic
progress reports describing
progress towards the
reasonable progress goals.
(h) Commitment to make a
determination of the
adequacy of the existing SIP
at the time a progress
report is submitted.
(i) Coordination with States
and Federal Land Managers.
(j) The following best
available retrofit
technology (BART)
determinations: PM BART
determination for the AEP
Flint Creek Plant Boiler No.
1; SO2 and PM BART
determinations for the
natural gas firing scenario
for the Entergy Lake
Catherine Plant Unit 4; PM
BART determinations for both
the bituminous and sub-
bituminous coal firing
scenarios for the Entergy
White Bluff Plant Units 1
and 2; and PM BART
determination for the Domtar
Ashdown Mill Power Boiler
No. 1.
----------------------------------------------------------------------------------------------------------------
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3. Section 52.173 is added to read as follows:
Sec. 52.173 Visibility protection.
(a) Regional haze. The regional haze State Implementation Plan
(SIP) revisions submitted on September 23, 2008 and August 3, 2010, and
supplemented on September 27, 2011 are partially approved and partially
disapproved.
(1) The identification of sources that are eligible for Best
Available Retrofit Technology (BART) is approved, with the exception of
the 6A Boiler at the Georgia-Pacific Crossett Mill, which is BART
eligible.
(2) The identification of sources subject to BART is approved, with
the exception of the 6A and 9A Boilers at the Georgia-Pacific Crossett
Mill, which are both subject to BART.
(3) The following BART determinations are disapproved:
(i) The sulfur dioxide (SO2), nitrogen dioxide
(NOX), and particulate matter
[[Page 14677]]
(PM) BART determinations for the Arkansas Electric Cooperative
Corporation Bailey Plant Unit 1 and the AECC McClellan Plant Unit 1;
(ii) The SO2 and NOX BART determinations for
the American Electric Power Flint Creek Plant Boiler No. 1;
(iii) The NOX BART determination for the natural gas
firing scenario and the SO2, NOX, and PM BART
determinations for the fuel oil firing scenario for the Entergy Lake
Catherine Plant Unit 4;
(iv) The SO2 and NOX BART determinations for
both the bituminous and sub-bituminous coal firing scenarios for the
Entergy White Bluff Plant Units 1 and 2;
(v) The BART determination for the Entergy White Bluff Plant
Auxiliary Boiler;
(vi) The SO2 and NOX BART determinations for
the Domtar Ashdown Mill Power Boiler No. 1; and
(vii) The SO2, NOX and PM BART determinations
for the Domtar Ashdown Mill Power Boiler No. 2.
(4) The Arkansas Regional Haze Rule, (APCEC Regulation 19, Chapter
15), is partially approved and partially disapproved such that:
(i) The requirement under Reg. 19.104(B) for BART installation and
operation as expeditiously as practicable, but no later than 5 years
after EPA approval of the Arkansas Regional Haze State Implementation
Plan is partially approved and partially disapproved, such that the
partial approval is for the BART determinations we are approving and
the partial disapproval is for the BART determinations we are
disapproving;
(ii) The requirement under Reg. 19.1504(B) for BART installation
and operation no later than 6 years after the effective date of the
State regulation is disapproved;
(iii) Reg. 19.1505 (A)(1) and (2), (B), (C), (D)(1) and (2), (E),
(F)(1) and (2), (G)(1) and (2), (H), (I)(1) and (2), (J)(1) and (2),
(K), (L), (M)(1), and (N) are disapproved;
(iv) the Reg. 19.1506 requirement to demonstrate compliance with
the BART limits listed in Reg. 19.1505 (A)(1) and (2), (B), (C), (D)(1)
and (2), (E), (F)(1) and (2), (G)(1) and (2), (H), (I)(1) and (2),
(J)(1) and (2), (K), (L), (M)(1), and (N) is disapproved; and
(v) The remaining portions are approved.
(5) The regional haze long term strategy under 40 CFR 51.308(d)(3)
is partially approved and partially disapproved.
(6) The reasonable progress goals are disapproved.
(b) Interstate Transport. The portion of the SIP pertaining to
adequate provisions to prohibit emissions from interfering with
measures required in another state to protect visibility, submitted on
March 28, 2008, and supplemented on September 27, 2011, is partially
approved and partially disapproved.
(1) The Arkansas Regional Haze Rule, (APCEC Regulation 19, Chapter
15), is partially approved and partially disapproved such that:
(i) The requirement under Reg. 19.104(B) for BART installation and
operation as expeditiously as practicable, but no later than 5 years
after EPA approval of the Arkansas Regional Haze State Implementation
Plan is partially approved and partially disapproved, such that the
partial approval is for the BART determinations we are approving and
the partial disapproval is for the BART determinations we are
disapproving;
(ii) The requirement under Reg. 19.1504(B) for BART installation
and operation no later than 6 years after the effective date of the
State regulation is disapproved;
(iii) Reg. 19.1505 (A)(1) and (2), (B), (C), (D)(1) and (2), (E),
(F)(1) and (2), (G)(1) and (2), (H), (I)(1) and (2), (J)(1) and (2),
(K), (L), (M)(1), and (N) are disapproved;
(iv) The Reg. 19.1506 requirement to demonstrate compliance with
the BART limits listed in Reg. 19.1505 (A)(1) and (2), (B), (C), (D)(1)
and (2), (E), (F)(1) and (2), (G)(1) and (2), (H), (I)(1) and (2),
(J)(1) and (2), (K), (L), (M)(1), and (N) is disapproved; and
(v) The remaining portions are approved.
[FR Doc. 2012-4493 Filed 3-9-12; 8:45 am]
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