[Federal Register Volume 77, Number 95 (Wednesday, May 16, 2012)]
[Proposed Rules]
[Pages 28825-28846]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-11848]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2011-0114; FRL-9670-6]


Approval, Disapproval and Promulgation of State Implementation 
Plans; State of Utah; Regional Haze Rule Requirements for Mandatory 
Class I Areas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to partially approve and partially disapprove 
a State Implementation Plan (SIP) revision submitted by the State of 
Utah on May 26, 2011 that addresses regional haze. EPA is also 
proposing to approve specific sections of a State of Utah SIP revision 
submitted on September 9, 2008 to address regional haze. These SIP 
revisions were submitted to address the requirements of the Clean Air 
Act (CAA or Act) and our rules that require states to prevent any 
future and remedy any existing man-made impairment of visibility in 
mandatory Class I areas caused by emissions of air pollutants from 
numerous sources located over a wide geographic area (also referred to 
as the ``regional haze program''). States are required to assure 
reasonable progress toward the national goal of achieving natural 
visibility conditions in Class I areas. EPA is taking this action 
pursuant to section 110 of the CAA.

DATES: Comments must be received on or before July 16, 2012.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2011-0114, by one of the following methods:
     http://www.regulations.gov. Follow the on-line 
instructions for submitting comments.
     Email: [email protected].
     Fax: (303) 312-6064 (please alert the individual listed in 
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
     Mail: Carl Daly, Director, Air Program, Environmental 
Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129.
     Hand Delivery: Carl Daly, Director, Air Program, 
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 
Wynkoop, Denver, Colorado 80202-1129. Such deliveries are only accepted 
Monday through Friday, 8:00 a.m. to 4:30 p.m., excluding Federal 
holidays. Special arrangements should be made for deliveries of boxed 
information.
    Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-
2011-0114. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or email. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an email comment directly to EPA, without 
going through http://www.regulations.gov, your email address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional instructions on submitting 
comments, go to Section I. General Information of the SUPPLEMENTARY 
INFORMATION section of this document.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly-available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Air Program, 
Environmental

[[Page 28826]]

Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop, 
Denver, Colorado 80202-1129. EPA requests that if at all possible, you 
contact the individual listed in the FOR FURTHER INFORMATION CONTACT 
section to view the hard copy of the docket. You may view the hard copy 
of the docket Monday through Friday, 8:00 a.m. to 4:00 p.m., excluding 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Laurel Dygowski, Air Program, U.S. 
Environmental Protection Agency, Region 8, Mailcode 8P-AR, 1595 
Wynkoop, Denver, Colorado 80202-1129, (303) 312-6144, 
[email protected].

SUPPLEMENTARY INFORMATION:

Definitions

    For the purpose of this document, we are giving meaning to certain 
words or initials as follows:
    i. The words or initials Act or CAA mean or refer to the Clean Air 
Act, unless the context indicates otherwise.
    ii. The initials BART mean or refer to Best Available Retrofit 
Technology.
    iii. The initials CAC mean or refer to clean air corridors.
    iv. The initials CEED mean or refer to the Center for Energy and 
Economic Development.
    v. The initials EC mean or refer to elemental carbon.
    vi. The initials EGUs mean or refer to electric generating units.
    vii. The initials EATS mean or refer to Emissions and Allowance 
Tracking System.
    viii. The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    ix. The initials GCVTC mean or refer to the Grand Canyon Visibility 
Transport Commission.
    x. The initials IMPROVE mean or refer to Interagency Monitoring of 
Protected Visual Environments monitoring network.
    xi. The initials IWAQM mean or refer to Interagency Workgroup on 
Air Quality Modeling.
    xii. The initials MRR mean or refer to monitoring, recordkeeping, 
and reporting.
    xiii. The initials LNB mean or refer to low NOX burner.
    xiv. The initials NOX mean or refer to nitrogen oxides.
    xv. The initials OC mean or refer to organic carbon.
    xvi. The initials PM2.5 mean or refer to particulate matter with an 
aerodynamic diameter of less than 2.5 micrometers.
    xvii. The initials PM10 mean or refer to particulate matter with an 
aerodynamic diameter of less than 10 micrometers.
    xviii. The initials RHR mean or refer to the Regional Haze Rule.
    xix. The initials RMC mean or refer to the Regional Modeling 
Center.
    xx. The initials RPO mean or refer to regional planning 
organization.
    xxi. The initials SIP mean or refer to State Implementation Plan.
    xxii. The initials SO2 mean or refer to sulfur dioxide.
    xxiii. The initials SOFA mean or refer to separated overfire air.
    xxiv. The initials TSA mean or refer to the tracking system 
administrator.
    xxv. The initials TSD mean or refer to Technical Support Document.
    xxvi. The words Utah or State mean or refer to the State of Utah.
    xxvii. The initials UAR mean or refer to the Utah Administrative 
Rules.
    xxviii. The initials VOC mean or refer to volatile organic 
compounds.
    xxix. The initials WRAP mean or refer to the Western Regional Air 
Partnership.

Table of Contents

I. General Information
    A. What should I consider as I prepare my comments for EPA?
    B. Overview of Proposed Action
II. Background Information
    A. Regional Haze
    B. Requirements of the CAA and EPA's Regional Haze Rule
    C. Role of Agencies in Addressing Regional Haze
    D. Development of the Requirements for 40 CFR 51.309
III. Requirements for Regional Haze SIPs Submitted Under 40 CFR 
51.309
    A. Projection of Visibility Improvement
    B. Clean Air Corridors (CACs)
    C. Stationary Source Reductions
    1. Sulfur Dioxide Emission Reductions
    2. Provisions for Stationary Source Emissions of Nitrogen Oxides 
and Particulate Matter
    D. Mobile Sources
    E. Programs Related to Fire
    F. Paved and Unpaved Road Dust
    G. Pollution Prevention
    H. Additional Recommendations
    I. Periodic Implementation Plan Revisions
    J. Interstate Coordination
IV. Additional Requirements for Alternative Programs Under the 
Regional Haze Rule
    A. ``Better-Than-BART'' Demonstration
    B. Elements Required for All Alternative Programs That Have an 
Emissions Cap
    1. Applicability
    2. Allowances
    3. Monitoring Recordkeeping, and Reporting
    4. Tracking System
    5. Account Representative
    6. Allowance Transfer
    7. Compliance Provisions
    8. Penalty Provisions
    9. Banking of Allowances
    10. Program Assessment
V. Our Analysis of Utah's Submittal
    A. Projection of Visibility Improvement
    B. Clean Air Corridors
    1. Comprehensive Emissions Tracking Program
    2. Identification of Clean Air Corridors
    3. Patterns of Growth Within and Outside of the Clean Air 
Corridor
    4. Actions If Impairment Inside or Outside the Clean Air 
Corridor Occurs
    5. Other Clean Air Corridors
    C. Stationary Source Reductions
    1. Provisions for Stationary Source Emissions of Sulfur Dioxide
    2. Documentation of Emissions Calculation Methods for Sulfur 
Dioxide
    3. Monitoring, Recordkeeping, and Reporting of Sulfur Dioxide 
Emissions
    4. Criteria and Procedures for a Market Trading Program
    5. Market Trading Program
    6. Provisions for the 2018 Milestone
    7. Special Penalty Provision for 2018
    D. ``Better-Than-BART'' Demonstration
    1. List of BART-Eligible Sources
    2. Subject-to-BART Determination
    3. Best System of Continuous Emission Control Technology
    4. Projected Emission Reductions
    5. Evidence That the Trading Program Achieves Greater Reasonable 
Progress Than BART
    6. All Emissions Reductions Must Take Place During the First 
Planning Period
    7. Detailed Description of the Alternative Program
    8. Surplus Reductions
    9. Geographic Distribution of Emissions
    E. Requirements for Alternative Programs With an Emissions Cap
    1. Applicability Provisions
    2. Allowance Provisions
    3. Monitoring, Recordkeeping, and Reporting
    4. Tracking System
    5. Account Representative
    6. Allowance Transfers
    7. Compliance Provisions
    8. Penalty Provisions
    9. Banking of Allowances
    10. Program Assessment
    F. Provisions for Stationary Source Emissions of Nitrogen Oxides 
and Particulate Matter
    1. BART-Eligible Sources
    2. Sources Subject-to-BART
    a. Modeling Methodology
    b. Contribution Threshold
    3. BART Determinations and Limits
    G. Mobile Sources
    H. Programs Related to Fire
    I. Paved and Unpaved Road Dust
    J. Pollution Prevention
    1. Description of Existing Pollution Prevention Programs
    2. Incentive Programs
    3. Programs To Preserve and Expand Energy Conservation Efforts
    4. Potential for Renewable Energy
    5. Projections of Renewable Energy Goals, Energy Efficiency, and 
Pollution Prevention Activities
    6. Programs To Achieve to GCVTC Renewable Energy Goal
    K. Additional Recommendations
    L. Periodic Implementation Plan Revisions
    M. Interstate Coordination

[[Page 28827]]

    N. Additional Class I areas
VI. Proposed Action
VII. Statutory and Executive Order Reviews

I. General Information

A. What should I consider as I prepare my comments for EPA?

    1. Submitting CBI. Do not submit CBI to EPA through http://www.regulations.gov or email. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as 
CBI and then identify electronically within the disk or CD-ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
    a. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    b. Follow directions--The agency may ask you to respond to specific 
questions or organize comments by referencing a Code of Federal 
Regulations (CFR) part or section number.
    c. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    d. Describe any assumptions and provide any technical information 
and/or data that you used.
    e. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    f. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    g. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    h. Make sure to submit your comments by the comment period deadline 
identified.

B. Overview of Proposed Action

    In this action, EPA is proposing to partially approve and partially 
disapprove a State of Utah SIP revision submitted on May 26, 2011 that 
addresses the regional haze rule (RHR) requirements for the mandatory 
Class I areas under 40 CFR 51.309. Specifically, EPA is proposing to 
approve all sections of the SIP submittal as meeting the requirements 
under 40 CFR 51.309, with the exception of the requirements under 40 
CFR 51.309(d)(4)(vii) pertaining to nitrogen oxides (NOX) 
and particulate matter (PM) best available retrofit technology (BART). 
EPA is proposing to disapprove the State's NOX and PM BART 
determinations and limits in section D.6.d of the SIP for the following 
four subject-to-BART EGUs: PacifiCorp Hunter Unit 1, PacifiCorp Hunter 
Unit 2, PacifiCorp Huntington Unit 1, and PacifiCorp Huntington Unit 2. 
EPA is proposing to disapprove these BART determinations because they 
do not comply with our regulations under 40 CFR 51.308(e)(1)(ii)(A). 
EPA is also proposing to disapprove the State's SIP because it does not 
contain the provisions necessary to make BART limits practically 
enforceable as required by section 110(a)(2) of the CAA and Appendix V 
to part 51.
    We are taking no action on section G--Long-Term Strategy for Fire 
Programs of the May 26, 2011 submittal as we have proposed approval of 
this section in a separate notice (76 FR 69217, November 8, 2011).
    We are proposing to approve specific sections of the State's 
September 9, 2008 SIP submittal. Specifically, we are proposing to 
approve Utah Administrative Rules (UAR) R307-250--Western Backstop 
Sulfur Dioxide Trading Program and R307-250--Emission Inventories. 
R307-250, in conjunction with the SIP, implements the backstop trading 
program provisions in accordance with the requirements of the RHR under 
40 CFR 51.309. The purpose of R305-250 is to establish consistent 
emission inventory reporting requirements for stationary sources in 
Utah to determine whether sulfur dioxide (SO2) emissions are 
below the SO2 milestones established for the trading 
program. We are taking no action on the rest of the September 9, 2008 
submittal as the May 26, 2011 submittal supersedes and replaces the 
remaining sections of the September 9, 2008 SIP submittal. The State 
also submitted SIPs on December 12, 2003 and August 8, 2004 to meet the 
requirements of the RHR. These submittals have been superseded and 
replaced by the September 9, 2008 and May 26, 2011 submittals.
    As explained in further detail below, 40 CFR 51.309 (section 309) 
allows western states an optional way to fulfill the RHR requirements 
as opposed to adopting the requirements under 40 CFR 51.308. Three 
states have elected to submit a SIP under 40 CFR 51.309. Those states 
are Wyoming, Utah, and New Mexico.\1\ In this action, EPA is proposing 
to approve Utah's section 309 SIP submittal. As required by 40 CFR 
51.309, the participating states must adopt a trading program, or what 
has been termed the Western Backstop Sulfur Dioxide Trading Program 
(backstop trading program or trading program). The 309 backstop trading 
program will not be effective until EPA has finalized action on all 
section 309 SIPs as the program is dependent on the participation of 
the three states. Wyoming submitted its 309 SIP to EPA on January 12, 
2011, and New Mexico submitted its 309 SIP to EPA on June 30, 2011. EPA 
will be taking action on Wyoming and New Mexico's 309 SIPs separately. 
If EPA takes action approving the necessary components of the 309 
backstop trading program to operate in all of the jurisdictions 
electing to submit 309 SIPs, the trading program will become effective.
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    \1\ In addition to the SIP submittals from the three states, 
Albuquerque/Bernalillo County in New Mexico must also submit a 
Section 309 RH SIP to completely satisfy the requirements of section 
110(a)(2)(D) of the CAA for the entire State of New Mexico under the 
New Mexico Air Quality Control Act (section 74-2-4). Albuquerque 
submitted its regional haze SIP to EPA on June 8, 2011. When we 
refer to New Mexico in this notice, we are also referring to 
Albuquerque/Bernalillo County.
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II. Background Information

A. Regional Haze

    Regional haze is visibility impairment that is produced by a 
multitude of sources and activities which are located across a broad 
geographic area and emit fine particles (PM2.5) (e.g., 
sulfates, nitrates, organic carbon (OC), elemental carbon (EC), and 
soil dust), and their precursors (e.g., SO2, NOX, 
and in some cases, ammonia (NH3) and volatile organic 
compounds (VOC)). Fine particle precursors react in the atmosphere to 
form PM2.5, which impairs visibility by scattering and 
absorbing light. Visibility impairment reduces the clarity, color, and 
visible distance that one can see. PM2.5 can also cause 
serious health effects and mortality in humans and contributes to 
environmental effects such as acid deposition and eutrophication.
    Data from the existing visibility monitoring network, the 
``Interagency Monitoring of Protected Visual Environments'' (IMPROVE) 
monitoring network, show that visibility impairment caused by air 
pollution occurs virtually all the time at most national park and 
wilderness areas. The average visual range \2\ in many Class I

[[Page 28828]]

areas (i.e., national parks and memorial parks, wilderness areas, and 
international parks meeting certain size criteria) in the western 
United States is 100-150 kilometers, or about one-half to two-thirds of 
the visual range that would exist without anthropogenic air pollution. 
In most of the eastern Class I areas of the United States, the average 
visual range is less than 30 kilometers, or about one-fifth of the 
visual range that would exist under estimated natural conditions. 64 FR 
35715 (July 1, 1999).
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    \2\ Visual range is the greatest distance, in kilometers or 
miles, at which a dark object can be viewed against the sky.
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B. Requirements of the CAA and EPA's Regional Haze Rule

    In section 169A of the 1977 Amendments to the CAA, Congress created 
a program for protecting visibility in the nation's national parks and 
wilderness areas. This section of the CAA establishes as a national 
goal the ``prevention of any future, and the remedying of any existing, 
impairment of visibility in mandatory Class I Federal areas \3\ which 
impairment results from manmade air pollution.'' On December 2, 1980, 
EPA promulgated regulations to address visibility impairment in Class I 
areas that is ``reasonably attributable'' to a single source or small 
group of sources, i.e., ``reasonably attributable visibility 
impairment.'' 45 FR 80084. These regulations represented the first 
phase in addressing visibility impairment. EPA deferred action on 
regional haze that emanates from a variety of sources until monitoring, 
modeling and scientific knowledge about the relationships between 
pollutants and visibility impairment were improved.
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    \3\ Areas designated as mandatory Class I Federal areas consist 
of national parks exceeding 6000 acres, wilderness areas and 
national memorial parks exceeding 5000 acres, and all international 
parks that were in existence on August 7, 1977. 42 U.S.C. 7472(a). 
In accordance with section 169A of the CAA, EPA, in consultation 
with the Department of Interior, promulgated a list of 156 areas 
where visibility is identified as an important value. 44 FR 69122 
(November 30, 1979). The extent of a mandatory Class I area includes 
subsequent changes in boundaries, such as park expansions. 42 U.S.C. 
7472(a). Although states and tribes may designate as Class I 
additional areas which they consider to have visibility as an 
important value, the requirements of the visibility program set 
forth in section 169A of the CAA apply only to ``mandatory Class I 
Federal areas.'' Each mandatory Class I Federal area is the 
responsibility of a ``Federal Land Manager.'' 42 U.S.C. 7602(i). 
When we use the term ``Class I area'' in this action, we mean a 
``mandatory Class I Federal area.''
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    Congress added section 169B to the CAA in 1990 to address regional 
haze issues. EPA promulgated a rule to address regional haze on July 1, 
1999. 64 FR 35714 (July 1, 1999, codified at 40 CFR part 51, subpart 
P). The RHR revised the existing visibility regulations to integrate 
into the regulation provisions addressing regional haze impairment and 
established a comprehensive visibility protection program for Class I 
areas. The requirements for regional haze, found at 40 CFR 51.308 and 
51.309, are included in EPA's visibility protection regulations at 40 
CFR 51.300-309. Some of the main elements of the regional haze 
requirements under 40 CFR 51.309 are summarized in sections III and IV 
of this preamble. The requirement to submit a regional haze SIP applies 
to all 50 states, the District of Columbia and the Virgin Islands. 40 
CFR 51.308(b) and 40 CFR 51.309(c) require states to submit the first 
implementation plan addressing regional haze visibility impairment no 
later than December 17, 2007.\4\
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    \4\ EPA's regional haze regulations require subsequent updates 
to the regional haze SIPs. 40 CFR 51.308(g)-(i).
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C. Roles of Agencies in Addressing Regional Haze

    Successful implementation of the regional haze program will require 
long-term regional coordination among states, tribal governments and 
various federal agencies. As noted above, pollution affecting the air 
quality in Class I areas can be transported over long distances, even 
hundreds of kilometers. Therefore, to effectively address the problem 
of visibility impairment in Class I areas, states need to develop 
strategies in coordination with one another, taking into account the 
effect of emissions from one jurisdiction on the air quality in 
another.
    Because the pollutants that lead to regional haze can originate 
from sources located across broad geographic areas, EPA has encouraged 
the states and tribes across the United States to address visibility 
impairment from a regional perspective. Five regional planning 
organizations (RPOs) were developed to address regional haze and 
related issues. The RPOs first evaluated technical information to 
better understand how their states and tribes impact Class I areas 
across the country, and then pursued the development of regional 
strategies to reduce emissions of PM and other pollutants leading to 
regional haze.
    The Western Regional Air Partnership (WRAP) RPO is a collaborative 
effort of state governments, tribal governments, and various federal 
agencies established to initiate and coordinate activities associated 
with the management of regional haze, visibility and other air quality 
issues in the western United States. WRAP member state governments 
include: Alaska, Arizona, California, Colorado, Idaho, Montana, New 
Mexico, North Dakota, Oregon, South Dakota, Utah, Washington, and 
Wyoming. Tribal members include Campo Band of Kumeyaay Indians, 
Confederated Salish and Kootenai Tribes, Cortina Indian Rancheria, Hopi 
Tribe, Hualapai Nation of the Grand Canyon, Native Village of Shungnak, 
Nez Perce Tribe, Northern Cheyenne Tribe, Pueblo of Acoma, Pueblo of 
San Felipe, and Shoshone-Bannock Tribes of Fort Hall.

D. Development of the Requirements for 40 CFR 51.309

    EPA's RHR provides two paths to address regional haze. One is 40 
CFR 51.308, requiring states to perform individual point source BART 
determinations and evaluate the need for other control strategies. 
These strategies must be shown to make ``reasonable progress'' in 
improving visibility in Class I areas inside the state and in 
neighboring jurisdictions. The other method for addressing regional 
haze is through 40 CFR 51.309, and is an option for nine states termed 
the ``Transport Region States'' which include: Arizona, California, 
Colorado, Idaho, Nevada, New Mexico, Oregon, Utah, and Wyoming, and the 
211 tribes located within those states. By meeting the requirements 
under 40 CFR 51.309, states are making reasonable progress toward the 
national goal of achieving natural visibility conditions for the 16 
Class I areas on the Colorado Plateau.
    Section 309 requires participating states to adopt regional haze 
strategies that are based on recommendations from the Grand Canyon 
Visibility Transport Commission (GCVTC) for protecting the 16 Class I 
areas on the Colorado Plateau.\5\ The EPA established the GCVTC on 
November 13, 1991. The purpose of the GCVTC was to assess information 
about the adverse impacts on visibility in and around the 16 Class I 
areas on the Colorado Plateau and to provide policy recommendations to 
EPA to address such impacts. Section 169B of the CAA called for the 
GCVTC to

[[Page 28829]]

evaluate visibility research, as well as other available information, 
pertaining to adverse impacts on visibility from potential or projected 
growth in emissions from sources located in the region. The GCVTC 
determined that all transport region states could potentially impact 
visibility in the Class I areas on the Colorado Plateau. The GCVTC 
submitted a report to EPA in 1996 with its policy recommendations for 
protecting visibility for the Class I areas on the Colorado Plateau. 
Provisions of the 1996 GCVTC report include: Strategies for addressing 
smoke emissions from wildland fires and agricultural burning; 
provisions to prevent pollution by encouraging renewable energy 
development; and provisions to manage clean air corridors (CACs), 
mobile sources, and wind-blown dust, among other things. The EPA 
codified these recommendations as part of the 1999 RHR. 64 FR 35714 
(July 1, 1999).
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    \5\ The Colorado Plateau is a high, semi-arid tableland in 
southeast Utah, northern Arizona, northwest New Mexico, and western 
Colorado. The 16 mandatory Class I areas are as follows: Grand 
Canyon National Park, Mount Baldy Wilderness, Petrified Forest 
National Park, Sycamore Canyon Wilderness, Black Canyon of the 
Gunnison National Park Wilderness, Flat Tops Wilderness, Maroon 
Bells Wilderness, Mesa Verde National Park, Weminuche Wilderness, 
West Elk Wilderness, San Pedro Parks Wilderness, Arches National 
Park, Bryce Canyon National Park, Canyonlands National Park, Capital 
Reef National Park, and Zion National Park.
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    EPA determined that the GCVTC strategies would provide for 
reasonable progress in mitigating regional haze if supplemented by an 
annex containing quantitative emission reduction milestones and 
provisions for a trading program or other alternative measure (64 FR 
35749 and 35756). Thus, the 1999 RHR required that western states 
submit an annex to the GCVTC report with quantitative milestones and 
detailed guidelines for an alternative program in order to establish 
the GCVTC recommendations as an alternative approach to fulfilling the 
section 308 requirements for compliance with the RHR. In September 
2000, the WRAP, which is the successor organization to the GCVTC, 
submitted an annex to EPA. The annex contained SO2 emission 
reduction milestones and the detailed provisions of a backstop trading 
program to be implemented automatically if voluntary measures failed to 
achieve the SO2 milestones. EPA codified the annex on June 
5, 2003 at 40 CFR 51.309(h). 68 FR 33764.
    Five western states submitted implementation plans under section 
309 in 2003. EPA was challenged by the Center for Energy and Economic 
Development (CEED) on the validity of the annex provisions. In CEED v. 
EPA, the D.C. Circuit vacated EPA's approval of the WRAP annex (Center 
for Energy and Economic Development v. EPA, No. 03-1222 (D.C. Cir. Feb. 
18, 2005)). In response to the court's decision, EPA vacated the annex 
requirements adopted as 40 CFR 51.309(h), but left in place the 
stationary source requirements in 40 CFR 51.309(d)(4). 71 FR 60612. The 
requirements under 40 CFR 51.309(d)(4) contain general requirements 
pertaining to stationary sources and market trading, and allow states 
to adopt alternatives to the point source application of BART.

III. Requirements for Regional Haze SIPs Submitted Under 40 CFR 51.309

    The following is a summary and basic explanation of the regulations 
covered under section 51.309 of the RHR. See 40 CFR 51.309 for a 
complete listing of the regulations under which this SIP was evaluated.

A. Projection of Visibility Improvement

    For each of the 16 Class I areas located on the Colorado Plateau, 
the SIP must include a projection of the improvement in visibility 
expressed in deciviews. 40 CFR 51.309(d)(2). The RHR establishes the 
deciview as the principal metric or unit for expressing visibility. See 
70 FR 39104, 39118. This visibility metric expresses uniform changes in 
the degree of haze in terms of common increments across the entire 
range of visibility conditions, from pristine to extremely hazy 
conditions. Visibility expressed in deciviews is determined by using 
air quality measurements to estimate light extinction and then 
transforming the value of light extinction using a logarithm function. 
The deciview is a more useful measure for tracking progress in 
improving visibility than light extinction itself because each deciview 
change is an equal incremental change in visibility perceived by the 
human eye. Most people can detect a change in visibility at one 
deciview.\6\ States need to show the projected visibility improvement 
for the best and worst 20 percent days through the year 2018, based on 
the application of all section 309 control strategies.
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    \6\ The preamble to the RHR provides additional details about 
the deciview. 64 FR 35714, 35725 (July 1, 1999).
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B. Clean Air Corridors (CACs)

    Pursuant to 40 CFR 51.309(d)(3), states must identify CACs. CACs 
are geographic areas located within transport region states that 
contribute to the best visibility days (least impaired) in the 16 Class 
I areas on the Colorado Plateau. The CAC as described in the 1996 GCVTC 
report covers nearly all of Nevada, large portions of Oregon, Idaho, 
and Utah, and encompasses several Indian nations. In order to meet the 
RHR requirements for CACs, states must adopt a comprehensive emissions 
tracking program for all visibility impairing pollutants within the 
CAC. Based on the emissions tracking, states must identify overall 
emissions growth or specific areas of emissions growth in and outside 
of the CAC that could be significant enough to result in visibility 
impairment at one or more of the 16 Class I areas. If there is 
visibility impairment in the CAC, states must conduct an analysis of 
the potential impact in the 16 Class I areas and determine if 
additional emission control measures are needed and how these measures 
would be implemented. States must also indicate in their SIP if any 
other CACs exist, and if others are found, provide necessary measures 
to protect against future degradation of visibility in the 16 Class I 
areas.

C. Stationary Source Reductions

1. Sulfur Dioxide Emission Reductions
    Section 169A of the CAA directs states to evaluate the use of 
retrofit controls at certain larger, often uncontrolled, older 
stationary sources in order to address their visibility impacts. 
Specifically, section 169A(b)(2)(A) of the CAA requires states to 
revise their SIPs to contain such measures as may be necessary to make 
reasonable progress towards the natural visibility goal, including a 
requirement that certain categories of existing major stationary 
sources built between 1962 and 1977 procure, install, and operate BART 
as determined by the state. Under the RHR, states are directed to 
conduct BART determinations for such ``BART-eligible'' sources that may 
be anticipated to cause or contribute to any visibility impairment in a 
Class I area.
    Rather than requiring source-specific BART controls, states have 
the flexibility under section 309 to adopt an emissions trading program 
or other alternative program as long as the alternative provides 
greater reasonable progress than would be achieved by the application 
of BART pursuant to 40 CFR 51.309(e)(2). Under 40 CFR 51.309, states 
can satisfy the section 308 SO2 BART requirements by 
adopting SO2 emission milestones and a backstop trading 
program. 40 CFR 51.309(d)(4). Under this approach, states must 
establish declining SO2 emission milestones for each year of 
the program through 2018. The milestones must be consistent with the 
GCVTC's goal of 50 to 70 percent reduction in SO2 emissions 
by 2040. If the milestones are exceeded in any year, the backstop 
trading program is triggered.
    Pursuant to 40 CFR 51.309(d)(4)(ii)-(iv), states must include 
requirements in the SIP that allow states to determine whether the 
milestone has been exceeded. These requirements include documentation 
of the baseline emission calculation, monitoring, recordkeeping,

[[Page 28830]]

and reporting (MRR) of SO2 emissions, and provisions for 
conducting an annual evaluation to determine whether the milestone has 
been exceeded. SIPs must also contain requirements for implementing the 
backstop trading program in the event that the milestone is exceeded 
and the program is triggered. 40 CFR 51.309(d)(4)(v).
    The WRAP, in conjunction with EPA, developed a model for a backstop 
trading program. In order to ensure consistency between states, states 
opting to participate in the 309 program need to adopt rules that are 
substantively equivalent to the model rules for the backstop trading 
program to meet the requirements of 40 CFR 51.309(d)(4). The trading 
program must also be implemented no later than 15 months after the end 
of the first year that the milestone is exceeded, require that sources 
hold allowances to cover their emissions, and provide a framework, 
including financial penalties, to ensure that the 2018 milestone is 
met.
2. Provisions for Stationary Source Emissions of Nitrogen Oxides and 
Particulate Matter
    Pursuant to 40 CFR 51.309(d)(4)(vii), a section 309 SIP must 
contain any necessary long term strategies and BART requirements for PM 
and NOX. Section 169A of the CAA directs states to evaluate 
the use of retrofit controls at certain larger, often uncontrolled, 
older stationary sources in order to address visibility impacts from 
these sources. Specifically, section 169A(b)(2)(A) of the CAA requires 
states to revise their SIPs to contain such measures as may be 
necessary to make reasonable progress towards the natural visibility 
goal, including a requirement that certain categories of existing major 
stationary sources \7\ built between 1962 and 1977 procure, install, 
and operate the ``Best Available Retrofit Technology'' as determined by 
the state. Under the RHR, states are directed to conduct BART 
determinations for such ``BART-eligible'' sources that may be 
anticipated to cause or contribute to any visibility impairment in a 
Class I area.
---------------------------------------------------------------------------

    \7\ The set of ``major stationary sources'' potentially subject-
to-BART is listed in CAA section 169A(g)(7).
---------------------------------------------------------------------------

    On July 6, 2005, EPA published the Guidelines for BART 
Determinations Under the Regional Haze Rule at appendix Y to 40 CFR 
part 51 (hereinafter referred to as the ``BART Guidelines'') to assist 
states in determining which of their sources should be subject to the 
BART requirements and in determining appropriate emission limits for 
each applicable source. 70 FR 39104. In making a BART determination for 
a fossil fuel-fired electric generating plant with a total generating 
capacity in excess of 750 megawatts (MW), a state must use the approach 
set forth in the BART Guidelines. A state is encouraged, but not 
required, to follow the BART Guidelines in making BART determinations 
for other types of sources. Regardless of source size or type, a state 
must meet the requirements of the CAA and our regulations for selection 
of BART, and the state's BART analysis and determination must be 
reasonable in light of the overarching purpose of the regional haze 
program.
    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; \8\ second, states determine which of such sources 
``emits 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''); and third, 
for each source subject-to-BART, states then identify the best 
available type and level of control for reducing emissions.
---------------------------------------------------------------------------

    \8\ BART-eligible sources are those sources that have the 
potential to emit 250 tons or more of a visibility-impairing air 
pollutant, were not in operation prior to August 7, 1962, but were 
in existence on August 7, 1977, and whose operations fall within one 
or more of 26 specifically listed source categories. 40 CFR 51.301.
---------------------------------------------------------------------------

    States must address all visibility-impairing pollutants emitted by 
a source in the BART determination process. The most significant 
visibility impairing pollutants are SO2, NOX, and 
PM. EPA has stated that states should use their best judgment in 
determining whether VOC or NH3 compounds impair visibility 
in Class I areas.
    Under the BART Guidelines, states may select an exemption threshold 
value for their BART modeling, below which a BART-eligible source would 
not be expected to cause or contribute to visibility impairment in any 
Class I area. The state must document this exemption threshold value in 
the SIP and must state the basis for its selection of that value. Any 
source with emissions that model above the threshold value would be 
subject to a BART determination review. The BART Guidelines acknowledge 
varying circumstances affecting different Class I areas. States should 
consider the number of emission sources affecting the Class I areas at 
issue and the magnitude of the individual sources' impacts. Any 
exemption threshold set by the state should not be higher than 0.5 
deciview. 40 CFR part 51, appendix Y, section III.A.1.
    In their SIPs, states must identify the sources that are subject-
to-BART and document their BART control determination analyses for such 
sources. In making their BART determinations, section 169A(g)(2) of the 
CAA requires that states consider the following factors when evaluating 
potential control technologies: (1) The costs of compliance; (2) the 
energy and non-air quality environmental impacts of compliance; (3) any 
existing pollution control technology in use at the source; (4) the 
remaining useful life of the source; and (5) the degree of improvement 
in visibility which may reasonably be anticipated to result from the 
use of such technology.
    A regional haze SIP must include source-specific BART emission 
limits and compliance schedules for each source subject-to-BART. Once a 
state has made its BART determination, the BART controls must be 
installed and in operation as expeditiously as practicable, but no 
later than five years after the date of EPA approval of the regional 
haze SIP. CAA section 169(g)(4) and 40 CFR 51.308(e)(1)(iv). In 
addition to what is required by the RHR, general SIP requirements 
mandate that the SIP must also include all regulatory requirements 
related to MRR for the BART controls on the source. See CAA section 
110(a). As noted above, the RHR allows states to implement an 
alternative program in lieu of BART so long as the alternative program 
can be demonstrated to achieve greater reasonable progress toward the 
national visibility goal than would BART.

D. Mobile Sources

    Under 40 CFR 51.309(d)(5), states must provide inventories of on-
road and non-road mobile source emissions of VOCs, NOX, 
SO2, PM2.5, EC, and OC for the years 2003, 2008, 
2013, and 2018. The inventories must show a continuous decline in total 
mobile source emissions of each of the above pollutants. If the 
inventories show a continuous decline in total mobile source emissions 
of each of these pollutants over the period 2003-2018, a state is not 
required to take further action in their SIP. If the inventories do not 
show a continuous decline in mobile source emissions of one or more of 
these pollutants over the period 2003-2018, a state must submit a SIP 
that contains measures that will achieve a continuous decline.
    The SIP must also contain any long-term strategies necessary to 
reduce emissions of SO2 from non-road mobile

[[Page 28831]]

sources, consistent with the goal of reasonable progress. In assessing 
the need for such long-term strategies, the state may consider 
emissions reductions achieved or anticipated from any new federal 
standards for sulfur in non-road diesel fuel. Section 309 SIPs must 
provide an update on any additional mobile source strategies 
implemented within the state related to the GCVTC 1996 recommendations 
on mobile sources.

E. Programs Related to Fire

    Pursuant to 40 CFR 51.309(d)(6), SIPs must contain requirements for 
programs related to fire. The SIP must show that the state's smoke 
management program, and all federal or private programs for prescribed 
fire in the state, have a mechanism in place for evaluating and 
addressing the degree of visibility impairment from smoke in their 
planning and application of burning. The state must also ensure that 
its prescribed fire smoke management programs have at least the 
following seven elements: (1) Actions to minimize emissions; (2) 
evaluation of smoke dispersion; (3) alternatives to fire; (4) public 
notification; (5) air quality monitoring; (6) surveillance and 
enforcement; and (7) program evaluation. The state must be able to 
track statewide emissions of VOC, NOX, EC, OC, and 
PM2.5 emissions from prescribed burning in its state.
    Other requirements states must meet in their 309 plan related to 
fire include the adoption of a statewide process for gathering post-
burn activity information to support emissions inventory and tracking 
systems. States must identify existing administrative barriers to the 
use of non-burning alternatives and adopt a process for continuing to 
identify and remove administrative barriers where feasible. The SIP 
must include an enhanced smoke management program that considers 
visibility effects in addition to health objectives and is based on the 
criteria of efficiency, economics, law, emission reduction 
opportunities, land management objectives, and reduction of visibility 
impairment. Finally, a state must establish annual emission goals to 
minimize emission increases from fire.

F. Paved and Unpaved Road Dust

    Under 40 CFR 51.309(d)(7), states must submit a SIP that assesses 
the impact of dust emissions on regional haze in the 16 Class I areas 
on the Colorado Plateau and to include a projection of visibility 
conditions through 2018 for the least and most impaired days. If dust 
emissions are determined to be a significant contributor to visibility 
impairment, the state must include emissions management strategies in 
the SIP to address their impact.

G. Pollution Prevention

    The requirements under the RHR for pollution prevention only 
require the state to provide an assessment of the energy programs as 
outlined in 40 CFR 51.309(d)(8) and does not require a state to adopt 
any specific energy-related strategies or regulations for regional 
haze. In order to meet the requirements related to pollution 
prevention, the state's plan must include an initial summary of all 
pollution prevention programs currently in place, an inventory of all 
renewable energy generation capacity and production in use or planned 
as of the year 2002, the total energy generation capacity and 
production for the state, and the percent of the total that is 
renewable energy.
    The state's plan must include a discussion of programs that provide 
incentives for efforts that go beyond compliance and/or achieve early 
compliance with air-pollution related requirements and programs to 
preserve and expand energy conservation efforts. The state must 
identify specific areas where renewable energy has the potential to 
supply power where it is now lacking and where renewable energy is most 
cost-effective. The state must include projections of the short and 
long-term emissions reductions, visibility improvements, cost savings, 
and secondary benefits associated with renewable energy goals, energy 
efficiency, and pollution prevention activities. The state must also 
provide its anticipated contribution toward the GCVTC renewable energy 
goals for 2005 and 2015. The GCVTC goals are that renewable energy will 
comprise 10 percent of the regional power needs by 2005 and 20 percent 
by 2015.

H. Additional Recommendations

    Section 309 requires states to determine if any of the other 
recommendations not codified by EPA as part of 40 CFR 51.309 should be 
implemented in their SIP. 40 CFR 51.309(d)(9). States are not required 
to adopt any additional control measures unless the state determines 
they are appropriate and can be practicably included as enforceable 
measures to remedy regional haze in the 16 Class I areas. Any measures 
adopted by a state would need to be enforceable. States must also 
submit a report to EPA and the public in 2013 and 2018 showing there 
has been an evaluation of the additional recommendations and the 
progress toward developing and implementing any such recommendations.

I. Periodic Implementation Plan Revisions

    Under 40 CFR 51.309(d)(10), states must submit progress reports in 
the form of SIP revisions in 2013 and 2018. The SIP revisions must 
comply with the procedural requirements of 40 CFR 51.102 for public 
hearings and 40 CFR 51.103 for submission of plans. The assessment in 
the progress report must include an evaluation of Class I areas located 
within the state and Class I areas outside the state that are affected 
by emissions from the state. EPA views these SIP revisions as a 
periodic check on progress, rather than a thorough revision of regional 
strategies. The state should focus on significant shortcomings of the 
original SIP from sources that were not fully accounted for or 
anticipated when the SIP was initially developed. The specifics of what 
each progress report must contain can be found at 40 CFR 
51.509(d)(10)(i)(A)-(G).
    At the same time that the state submits its progress report to EPA, 
it must also take an action based on the outcome of the assessment in 
the report. If the assessment shows that the SIP is adequate and 
requires no substantive revision, the state must submit to EPA a 
``negative declaration'' statement saying that no further SIP revisions 
are necessary at this time. If the assessment shows that the SIP is or 
may be inadequate due to emissions from outside the state, the state 
must notify EPA and other regional planning states and work with them 
to develop additional control strategies. If the assessment shows that 
the SIP is or may be inadequate due to emissions from another country, 
the state must include appropriate notification to EPA in its SIP 
revision. In the event the assessment shows that the SIP is or may be 
inadequate due to emissions from within the state, the state shall 
develop additional strategies to address the deficiencies and revise 
the SIP within one year from the due date of the progress report.

J. Interstate Coordination

    In complying with the requirements of 40 CFR 51.309(d)(11), states 
may include emission reductions strategies that are based on 
coordinated implementation with other states. The SIP must include 
documentation of the technical and policy basis for the individual 
state apportionment (or the procedures for apportionment throughout the 
trans-boundary region), the contribution addressed by the state's

[[Page 28832]]

plan, how it coordinates with other state plans, and compliance with 
any other appropriate implementation plan approvability criteria. 
States may rely on the relevant technical, policy, and other analyses 
developed by a regional entity, such as the WRAP in providing such 
documentation.

IV. Additional Requirements for Alternative Programs Under the Regional 
Haze Rule

    States opting to submit an alternative program, such as the 
backstop trading program under section 309, must also meet requirements 
under 40 CFR 51.308(e)(2) and (e)(3). These requirements for 
alternative programs relate to the ``better-than-BART'' test and 
fundamental elements of any alternative program that establishes a cap 
on emissions.

A. ``Better-Than-BART'' Demonstration

    In order to demonstrate that the alternative program achieves 
greater reasonable progress than source-specific BART, states must 
provide a demonstration in their SIP that meets the requirements in 40 
CFR 51.308(e)(2)(i)-(v). States submitting section 309 SIPs or other 
alternative programs are required to list all BART-eligible sources and 
categories covered by the alternative program. States are then required 
to determine which BART-eligible sources are ``subject-to-BART.'' The 
SIP must provide an analysis of the best system of continuous emission 
control technology available and the associated reductions for each 
source subject-to-BART covered by the alternative program, or what is 
termed a ``BART benchmark.'' Where the alternative program, such as the 
309 backstop trading program, has been designed to meet requirements 
other than BART, states may use simplifying assumptions in establishing 
a BART benchmark. These assumptions can provide the baseline to show 
that the alternative program achieves greater reasonable progress than 
BART (71 FR 60619). Under this approach, states should use the 
presumptive limits for EGUs in the BART Guidelines to establish the 
BART benchmark used in the comparison, unless the state determines that 
such presumptions are not appropriate for particular EGUs (70 FR 
60619).
    The SIP must provide an analysis of the projected emissions 
reductions achievable through the trading program or other alternative 
measure and a determination that the trading program or other 
alternative measure achieves greater reasonable progress than would be 
achieved through the installation and operation of BART pursuant to 40 
CFR 51.308(e)(1). 40 CFR 308(e)(2)(i)(D)-(E). Under 40 CFR 
51.308(e)(2)(iii)-(iv), all emission reductions for the alternative 
program must take place by 2018, and all the emission reductions 
resulting from the alternative program must be surplus to those 
reductions resulting from measures adopted to meet requirements of the 
CAA as of the baseline date of the SIP. Pursuant to 40 CFR 
51.309(e)(2)(v), states have the option of including a provision that 
the emissions trading program or other alternative measure include a 
geographic enhancement to the program to address the requirement under 
40 CFR 51.302(c) related to BART for reasonably attributable visibility 
impairment from the pollutants covered under the emissions trading 
program or other alternative measure.
    States must also address the distribution of emissions under the 
BART alternative as part of the better-than-BART demonstration. 40 CFR 
51.308(e)(3). If a state can show that with the alternative program the 
distribution of emissions is not substantially different from source-
specific BART, and the alternative program results in greater emission 
reductions than source-specific BART, then the alternative measure may 
be deemed to achieve greater reasonable progress. If the distribution 
of emissions is significantly different, the state must conduct 
dispersion modeling to determine differences in visibility between 
source-specific BART and the alternative program for each impacted 
Class I area for the 20% worst and best days. The modeling must show 
that visibility does not decline at any Class I area and that 
visibility overall is greater than what would be achieved with source-
specific BART.

B. Elements Required for All Alternative Programs That Have an 
Emissions Cap

    Under 40 CFR 51.308(e)(2)(vi)(A)-(L), EPA established fundamental 
requirements for trading or alternative programs that have an emissions 
cap and require sources to hold allowances that they can sell, buy, or 
trade, as in the case for the 309 backstop trading program. These 
requirements are summarized below.
1. Applicability
    The alternative program must have applicability provisions that 
define the sources subject to the program. In the case of a program 
covering sources in multiple states, the states must demonstrate that 
the applicability provisions in each state cover essentially the same 
size facilities and, if source categories are specified, cover the same 
source categories.
2. Allowances
    Allowances are a key feature of a cap and trade program. An 
allowance is a limited authorization for a source to emit a specified 
amount of a pollutant, as defined by the specific trading program, 
during a specified period. Allowances are fully marketable commodities. 
Once allocated, allowances may be bought, sold, traded, or banked for 
use in future years. EPA has not included in the rule detailed 
requirements on how states and tribes can allocate allowances. A state 
or tribe can determine how to allocate allowances as long as the 
allocation of the tonnage value of allowances does not exceed the total 
number of tons of emissions capped by the budget. The trading program 
must include allowance provisions ensuring that the total value of 
allowances issued each year under the program will not exceed the 
emissions cap on total annual emissions from the sources in the 
program.
3. Monitoring, Recordkeeping, and Reporting
    MRR of a source's emissions are integral parts of any cap and trade 
program. Consistent and accurate measurement of emissions ensures that 
each allowance actually represents its specified tonnage value of 
emissions and that one ton of reported emissions from one source is 
equivalent to one ton of reported emissions at another source. The MRR 
provisions must require that boilers, combustion turbines, and cement 
kilns in the alternative program that are allowed to sell or transfer 
allowances comply with the requirements of 40 CFR part 75. The MRR 
provisions must require that other sources in the program allowed to 
sell or transfer allowances provide emissions information with the same 
precision, reliability, accessibility, and timeliness as information 
required by 40 CFR part 75.
4. Tracking System
    An accurate and efficient tracking system is critical to the 
functioning of an emissions trading market. The tracking system must 
also be transparent, allowing all interested parties access to the 
information contained in the accounting system. Thus, alternative 
programs must have requirements for a tracking system that is publicly 
available in a secure, centralized database to track in a consistent 
manner all allowances and emissions in the program.

[[Page 28833]]

5. Account Representative
    Each source owner or operator covered by the alternative program 
must designate an individual account representative who is authorized 
to represent the owner or operator in all matters pertaining to the 
trading program and who is responsible for the data reported for that 
source. The account representative will be responsible for, among other 
things, permitting, compliance, and allowance related actions.
6. Allowance Transfer
    SIPs must contain provisions detailing a uniform process for 
transferring allowances among all sources covered by the program and 
other possible participants. The provisions must provide procedures for 
sources to request an allowance transfer, for the request and transfer 
to be recorded in the allowance tracking system, for notification to 
the source that the transfer has occurred, and for notification to the 
public of each transfer and request.
7. Compliance Provisions
    Cap and trade programs must include compliance provisions that 
prohibit a source from emitting more emissions than the total tonnage 
value of allowances the source holds for that year. A cap and trade 
program must also contain the specific methods and procedures for 
determining compliance on an annual basis.
8. Penalty Provisions
    In order to provide sources with a strong incentive to comply with 
the requirement to hold sufficient allowances for their emissions on an 
annual basis and to establish an immediate minimum economic consequence 
for non-compliance, the program must include a system for mandatory 
allowance deductions. SIPs must contain a provision that if a source 
has excess emissions in a given year, allowances allocated for the 
subsequent year will be deducted from the source's account in an amount 
at least equal to three times the excess emissions.
9. Banking of Allowances
    The banking of allowances occurs when allowances that have not been 
used for compliance are set aside for use in a later compliance period. 
Alternative programs can include provisions for banked allowances, so 
long as the SIP clearly identifies how unused allowances may be used in 
future years and whether there are any restrictions on the use of any 
such banked allowances.
10. Program Assessment
    The alternative program must include provisions for periodic 
assessment of the program. Such periodic assessments are a way to 
retrospectively assess the performance of the trading program in 
meeting the goals of the regional haze program and determining whether 
the trading program needs any adjustments or changes. At a minimum, the 
program evaluation must be conducted every five years to coincide with 
the periodic report describing progress towards the reasonable progress 
goals required under 40 CFR 51.308(g) and must be submitted to EPA.

V. Our Analysis of Utah's Submittal

    The following summarizes how we are proposing that Utah's May 26, 
2011 and September 9, 2008 SIP submittals meet and do not meet the 
requirements of the RHR, sections 169A(g)(2) and 110(a)(2) of the CAA, 
and Appendix V to part 51.

A. Projection of Visibility Improvement

    Pursuant to 40 CFR 51.309(d)(2), Utah provided a comparison of the 
monitored 2000-2004 baseline visibility conditions in deciviews for the 
20 percent best and 20 percent worst days to the projected visibility 
improvement for 2018 for the Class I areas on the Colorado Plateau (see 
section K.2 of the SIP). Table 1 shows the State's baseline monitoring 
data and projected visibility improvement for 2018 from the WRAP 
photochemical modeling (for details on the WRAP emission inventories 
and photochemical modeling refer to the WRAP Technical Support Document 
(TSD) \9\ and our review of the technical products developed by the 
WRAP for the states in the western region, in support of their regional 
haze SIPs).\10\ The projected visibility improvement for the 2018 Base 
Case (referred to as the Base18b emission inventory and modeled 
projections) reflects growth plus all controls ``on the books'' as of 
December 2004. The projected visibility improvement for the Preliminary 
Reasonable Progress Case (referred to as the PRP18b emission inventory 
and modeled projections) reflects refined growth estimates, all 
controls ``on the books'' as of 2007, and includes presumptive or known 
SO2 BART controls. The modeling results show projected 
visibility improvement for the 20 percent worst days in 2018 and no 
degradation in visibility conditions on the 20 percent best days at all 
16 Class I areas on the Colorado Plateau. We are proposing to determine 
the State's SIP satisfies the requirements of 40 CFR 51.309(d)(2).
---------------------------------------------------------------------------

    \9\ WRAP Regional Technical Support Document for the 
Requirements of Sec.  309 of the Regional Haze Rule (64 Federal 
Register 35714--July 1, 1999), revised May 7, 2008, which can be 
found in the State's TSD included in the docket for this action.
    \10\ Our review of the technical products developed by the WRAP 
is available as Technical Support Document for Technical Products 
Prepared by the Western Regional Air Partnership (WRAP) in Support 
of Western Regional Haze Plans, February 28, 2011, which can be 
found in the Supporting and Related Materials section of the docket 
for this action.

                                       Table 1--Baseline and 2018 Visibility at the Colorado Plateau Class I Areas
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 20 Percent worst visibility days                 20 Percent best visibility days
                                                         -----------------------------------------------------------------------------------------------
                                                             2000-2004                         2018          2000-2004                         2018
             Class I area                    State           Baseline                       Preliminary      Baseline                       Preliminary
                                                            monitoring    2018 Base case    reasonable      monitoring    2018 Base case    reasonable
                                                               data         (deciview)     progress case       data         (deciview)     progress case
                                                            (deciview)                      (deciview)      (deciview)                      (deciview)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Grand Canyon National Park...........  AZ                           11.7            11.4            11.3             2.2             2.2             2.1
Mount Baldy Wilderness...............  AZ                           11.9            11.5            11.4             3.0             2.9             2.8
Petrified Forest National Park.......  AZ                           13.2            12.9            12.9             5.0             4.9             4.8
Sycamore Canyon Wilderness...........  AZ                           15.3            15.1            15.1             5.6             5.6             5.6
Black Canyon of the Gunnison National  CO                           10.3            10.1             9.9             3.1             2.9             2.9
 Park Wilderness.
Flat Tops Wilderness.................  CO                            9.6             9.2             9.0             0.7             0.6             0.5
Maroon Bells Wilderness..............  CO                            9.6             9.2             9.0             0.7             0.6             0.5

[[Page 28834]]

 
Mesa Verde National Park.............  CO                           13.0            12.8            12.6             4.3             4.1             4.0
Weminuche Wilderness.................  CO                           10.3            10.1             9.9             3.1             2.9             2.9
West Elk Wilderness..................  CO                            9.6             9.2             9.0             0.7             0.6             0.5
San Pedro Parks Wilderness...........  NM                           10.2            10.0             9.8             1.5             1.3             1.2
Arches National Park.................  UT                           11.2            11.0            10.9             3.8             3.6             3.5
Bryce Canyon National Park...........  UT                           11.6            11.3            11.2             2.8             2.7             2.6
Canyonlands National Park............  UT                           11.2            11.0            10.9             3.8             3.6             3.5
Capitol Reef National Park...........  UT                           10.9            10.6            10.5             4.1             4.0             3.9
Zion National Park...................  UT                           13.2            13.0            13.0             5.0             4.7             4.7
--------------------------------------------------------------------------------------------------------------------------------------------------------

B. Clean Air Corridors

1. Comprehensive Emissions Tracking Program
    Pursuant to 40 CFR 51.309(d)(3), Utah is using a comprehensive 
emissions tracking system established by WRAP to track emissions within 
portions of Oregon, Idaho, Nevada and Utah that have been identified as 
part of the CAC (see section C.3.a of the SIP). The emission tracking 
is to ensure that visibility does not degrade on the least-impaired 
days in any of the 16 Class I areas of the Colorado Plateau. For a 
complete description of the emission tracking system and the process by 
which the annual emission trends will be summarized in order to 
identify any significant emissions growth that could lead to visibility 
degradation in the 16 Class I areas, see section C of the State's TSD.
2. Identification of Clean Air Corridors
    Pursuant to 40 CFR 51.309(d)(3)(i), the State has provided the 
geographic boundaries of the CAC (a map of the CAC can be found in 
section C, Figure 1 of the SIP). The WRAP identified the CAC using 
studies conducted by the Meteorological Subcommittee of the GCVTC and 
then updated the CAC based on an assessment described in the WRAP 
Policy on Clean Air Corridors. The policy is included in section C of 
the State's TSD. The technical studies and findings supporting the WRAP 
Policy on Clean Air Corridors are located in Chapter 3 of the WRAP TSD.
3. Patterns of Growth Within and Outside of the Clean Air Corridor
    Pursuant to 40 CFR 51.309(d)(3)(ii)-(iii), the State has 
determined, based on the WRAP Policy on Clean Air Corridors and 
technical analysis conducted by the WRAP, that inside and outside the 
CAC there is no significant emissions growth occurring at this time 
that is causing visibility impairment in the 16 Class I areas of the 
Colorado Plateau. The WRAP will summarize annual emission trends within 
and outside of the CAC and will assess whether any significant 
emissions growth is occurring that could result in visibility 
impairment in any of the 16 Class I areas (see section C.3.b of the 
SIP).
4. Actions if Impairment Inside or Outside the Clean Air Corridor 
Occurs
    The State, in coordination with other transport region states and 
tribes, will review the annual summary of emission trends within the 
CAC and determine whether any significant emissions growth has 
occurred. If the State identifies significant emissions growth, the 
State, in coordination with other transport region states and tribes, 
will conduct an analysis of the effects of this emissions growth. 
Pursuant to 40 CFR 51.309(d)(3)(iv), if this analysis finds that the 
emissions growth is causing visibility impairment in the 16 Class I 
areas, the State will evaluate the need for additional emission 
reduction measures and identify an implementation schedule for such 
measures. The State will report on the need for additional reduction 
measures to EPA in accordance with the periodic progress reports 
required under 40 CFR 51.309(d)(10)(i) (see section C.3.d of the SIP).
5. Other Clean Air Corridors
    Pursuant to 40 CFR 51.309(d)(3)(v), the State has concluded that no 
other CACs can be identified at this time. The State's conclusion is 
based on the WRAP Policy on Clean Air Corridors, which determined that 
no other CACs could be identified (see section C.2 of the SIP).
    We are proposing to determine that the State's SIP meets the 
requirements of 40 CFR 51.309(d)(3).

C. Stationary Source Reductions

1. Provisions for Stationary Source Emissions of Sulfur Dioxide
    As required by 40 CFR 51.309(d)(4)(i), the State has adopted 
SO2 milestone numbers for each year of the program until 
2018 (see section E.1.a of the SIP).\11\ Table 2 shows the milestone 
numbers and how compliance with the annual milestones will be 
determined.
---------------------------------------------------------------------------

    \11\ The milestone numbers reflect the participation of Wyoming, 
Utah, and New Mexico, including Albuquerque-Bernalillo County in the 
309 backstop trading program.

                    Table 2--SO2 Emissions Milestones
------------------------------------------------------------------------
                                Regional sulfur    Annual SO2 emissions
                                    dioxide         used to determine
             Year              milestone  (tons    compliance with the
                                per year (tpy))     annual milestones
------------------------------------------------------------------------
2008.........................  269,083 tons SO2  Average of 2006, 2007
                                                  and 2008.
2009.........................  234,903 tons SO2  Average of 2007, 2008
                                                  and 2009.
2010.........................  200,722 tons SO2  Average of 2008, 2009
                                                  and 2010.
2011.........................  200,722 tons SO2  Average of 2009, 2010
                                                  and 2011.
2012.........................  200,722 tons SO2  Average of 2010, 2011
                                                  and 2012.

[[Page 28835]]

 
2013.........................  185,795 tons SO2  Average of 2011, 2012
                                                  and 2013.
2014.........................  170,868 tons SO2  Average of 2012, 2013
                                                  and 2014.
2015.........................  155,940 tons SO2  Average of 2013, 2014
                                                  and 2015.
2016.........................  155,940 tons SO2  Average of 2014, 2015
                                                  and 2016.
2017.........................  155,940 tons SO2  Average of 2015, 2016
                                                  and 2017.
2018.........................  141,849 tons SO2  Year 2018 only.
2019 forward, until replaced   141,849 tons SO2  Annual; no multiyear
 by an approved SIP.                              averaging.
------------------------------------------------------------------------

    SO2 emissions from sources in 1990 totaled 358,364 tpy 
and the 2018 milestone is 141,849 tpy.\12\ The difference is a 60 
percent reduction in SO2 emissions from 1990 to 2018. 
Pursuant to 40 CFR 51.309(d)(4)(i), the State has concluded that the 
emission reductions are on target to achieve the GCVTC goal of a 50 to 
70 percent reduction of SO2 emissions by 2040.
---------------------------------------------------------------------------

    \12\ See Demonstration that the SO2 Milestones 
Provide Greater Reasonable Progress than BART in section D of the 
State's TSD.
---------------------------------------------------------------------------

    We are proposing to determine the State's SIP meets the 
requirements of 40 CFR 51.309(d)4)(i).
2. Documentation of Emissions Calculation Methods for Sulfur Dioxide
    Pursuant to 40 CFR 51.309(d)(4)(ii), the SIP includes documentation 
of the specific methodology used to calculate SO2 emissions 
during the 2006 base year for each emitting unit included in the 
program. A detailed spreadsheet report that provides the baseline 
numbers and methodology used to calculate emissions for sources covered 
by the program is included in section E of the State's TSD.
    Pursuant to 40 CFR 51.309(d)(4)(ii), the SIP requires the State to 
document any change to the specific methodology used to calculate 
emissions at any emitting unit for any year after the base year. Until 
the program has been triggered and source compliance is required, the 
State will submit an annual emissions report to EPA that documents 
prior year emissions for Utah sources covered by the 309 program to all 
participating states by September 30 of each year. The State will 
adjust actual emission inventories for sources that change the method 
of monitoring or calculating their emissions to be comparable to the 
emission monitoring or calculation method used to calculate the 2006 
base year inventory (see section E.1.c of the SIP).
    We are proposing to determine the State's SIP meets the 
requirements of 40 CFR 51.309(d)(4)(ii).
3. Monitoring, Recordkeeping, and Reporting of Sulfur Dioxide Emissions
    In order to meet the emission reporting requirements of 40 CFR 
51.309(d)(4)(iii), the SIP includes provisions requiring the reporting 
of actual stationary source SO2 emissions within the State 
to determine if the milestone has been exceeded. The State revised and 
submitted as part of their regional haze SIP changes to UAR R307-150, 
Emission Inventories, to meet this requirement. The SO2 
inventory requirements of R307-150 require all stationary sources with 
actual emissions of 100 tons per year or more of SO2 in the 
year 2000, or in any subsequent year, to submit an annual inventory of 
SO2 emissions, beginning with the 2003 emission inventory. A 
source that meets these criteria and then emits less than 100 tons per 
year in a later year must continue to submit an SO2 
inventory for tracking compliance with the regional SO2 
milestones until 2018 or until the trading program has been fully 
implemented and emission tracking is occurring under UAR R307-250-9.
    We are proposing to determine that the State's SIP meets the 
requirements of 40 CFR 51.309(d)(4)(iii).
4. Criteria and Procedures for a Market Trading Program
    Until the backstop trading program has been triggered and source 
compliance is required, the State shall submit an annual emissions 
report for Utah sources to all participating states by September 30 of 
each year. The report shall document actual SO2 emissions 
during the previous calendar year for all sources subject to the 
section 309 program. The WRAP will compile reports from all 
participating states into a draft regional emission report for 
SO2 by December 31 of each year. This report will include 
actual regional SO2 emissions, adjustments to account for 
changes in monitoring/calculation methods or enforcement/settlement 
agreements, and adjusted average emissions for the last three years for 
comparison to the regional milestone. As required by 40 CFR 
51.309(d)(4)(iv), based on this compilation of reports from all states 
participating in the 309 program, states will determine if the 
milestone has been exceeded and will include a determination in a final 
regional emissions report that is submitted to EPA. This final report 
and determination will be submitted to EPA by the end of March, 15 
months following the milestone year (see section E.1.c of the SIP).
    We are proposing to determine the State's SIP meets the 
requirements of 40 CFR 51.309(d)(4)(iv).
5. Market Trading Program
    Per 40 CFR 51.309(d)(4)(v), the SIP provides that if the 309 
backstop trading program is triggered, the regional emissions report 
will contain a common trigger date. In the absence of a common trigger 
date, the default date will be March 31st of the applicable year, but 
no later than 15 months after the end of the milestone year where the 
milestone was exceeded (see section E.1.c of the SIP). The State's SIP 
requires that sources comply, as soon as practicable, with the 
requirement to hold allowances covering their emissions. Because the 
backstop trading program does not allow allocations to exceed the 
milestone, the program is sufficient to achieve the milestones adopted 
pursuant to 40 CFR 51.309(d)(4)(i) as discussed above. The backstop 
trading program is also consistent with the elements for such programs 
outlined in 40 CFR 51.308(e)(2)(vi). The analysis found in Section V.E. 
of this notice shows that the backstop trading program is consistent 
with the elements for trading programs outlined in 40 CFR 
51.308(e)(2)(vi).
    Pursuant to 40 CFR 51.309(d)(4)(v), the State has provided the 
requirements for the backstop trading program in the event that a 
milestone is not achieved. The State adopted and submitted as part of 
its regional haze SIP UAR R307-250--Western Backstop Sulfur Dioxide 
Trading Program. R307-250 contains the backstop trading program 
requirements applicable to sources covered by the program. R307-250, in

[[Page 28836]]

conjunction with section E of the SIP, implements the backstop trading 
program provisions (the requirements and provisions for the backstop 
trading program are discussed in this section and section E below).
    We are proposing to determine the State's SIP meets the 
requirements of 40 CFR 309(d)(4)(v).
6. Provisions for the 2018 Milestone
    Pursuant to 40 CFR 51.309(d)(vi)(A), the SIP has provisions to 
ensure that, until a revised implementation plan is submitted in 
accordance with 40 CFR 51.308(f) and approved by EPA, emissions from 
covered stationary sources in any year beginning in 2018 do not exceed 
the 2018 milestone. In order to meet this requirement, the State has 
included special provisions for what will be required as part of their 
2013 SIP revision required under 40 CFR 51.309(d)(10). The State's SIP 
provides that the 2013 SIP revision required by 40 CFR 51.309(d)(10) 
will contain either the provisions of a program designed to achieve 
reasonable progress for stationary sources of SO2 beyond 
2018 or a commitment to submit a SIP revision containing the provisions 
of such a program no later than December 31, 2016 (see section E.4 of 
the SIP).
    We are proposing to determine the State's SIP meets the 
requirements of 40 CFR 51.309(d)(4)(vi)(A).
7. Special Penalty Provision for 2018
    Pursuant to 40 CFR 51.309(d)(vi)(B), the SIP includes special 
penalty provisions to ensure that the 2018 milestone is met. If the 
backstop trading is triggered and it will not start until after the 
year 2018, a special penalty shall be assessed to sources that exceed 
the 2018 milestone. Utah shall seek at least the minimum financial 
penalty of $5,000 per ton of SO2 emissions in excess of a 
source's allowance limitation. Any source may resolve its excess 
emissions violation by agreeing to a streamlined settlement approach 
where the source pays a penalty of $5,000 per ton or partial ton of 
excess emissions and the source makes the payment within 90 calendar 
days after the issuance of a notice of violation.
    Any source that does not resolve its excess emissions violation in 
accordance with the streamlined settlement approach will be subject to 
civil enforcement action, in which the State shall seek a financial 
penalty for the excess emissions based on the State's statutory maximum 
civil penalties. The special penalty provisions for 2018 will apply for 
each year after 2018 until the State determines that the 2018 milestone 
has been met. The State will evaluate the amount of the minimum 
monetary penalty during each five-year SIP review and the penalty will 
be adjusted to ensure that penalties per ton substantially exceed the 
expected cost of allowances, and are thus stringent penalties (see 
R307-250-13 and section E.1.e of the SIP).
    We are proposing to determine the State's SIP meets the 
requirements of 40 CFR 51.309(d)(4)(vi)(B).

D. ``Better-Than-BART'' Demonstration

    As discussed in Section IV.A of this preamble, if a state adopts an 
alternative program designed to replace source-specific BART controls, 
the state must be able to demonstrate that the alternative program 
achieves greater reasonable progress than would be achieved by BART. 
Utah has included a demonstration of how the 309 program achieves 
greater reasonable progress than BART as discussed in the document 
titled Demonstration that the SO2 Milestones Provide for Greater 
Reasonable Progress than BART (``better-than-BART'' demonstration). 
Section V.D.5 below contains a discussion on how the 309 backstop 
trading program achieves greater reasonable progress than BART. New 
Mexico and Wyoming have also submitted SIPs with the same better-than-
BART demonstration as Utah, and thus are relying on a consistent 
demonstration across the states.
1. List of BART-Eligible Sources
    Pursuant to 40 CFR 51.308(e)(2)(i)(A), the State's better-than-BART 
demonstration lists the BART-eligible sources covered by the program 
(see Table 3 below). BART eligible sources are identified as those 
sources that fall within one of the 26 specific source categories, were 
built between 1962 and 1977 and have potential emissions of 250 tons 
per year of any visibility impairing air pollutant. The State 
identified the following BART-eligible sources in Utah: PacifiCorp 
Hunter Units 1 and 2 and PacifiCorp Huntington Units 1 and 2.
    We are proposing that this satisfies the requirements of 40 CFR 
51.308(e)(2)(i)(A).
2. Subject-to-BART Determination
    Pursuant to 40 CFR 51.308(e)(2)(i)(B), the State has determined 
which sources are subject-to-BART. Each of the section 309 states 
provided source modeling that determined which of the BART-eligible 
sources within their states cause or contribute to visibility 
impairment and are thus subject-to-BART (more information on subject-
to-BART sources and modeling can be found in section V.F of this 
notice). The State of New Mexico and Utah relied on modeling by the 
WRAP to identify sources subject-to-BART. The procedures used are 
outlined in the WRAP Regional Modeling Center (RMC) BART Modeling 
Protocol.\13\ The State of Wyoming performed separate modeling to 
identify sources subject-to-BART.\14\
---------------------------------------------------------------------------

    \13\ CALMET/CALPUFF Protocol for BART Exemption Screening 
Analysis for Class I Areas in the Western United States, Western 
Regional Air Partnership (WRAP); Gail Tonnesen, Zion Wang; Ralph 
Morris, Abby Hoats and Yiqin Jia, August 15, 2006. Available at: 
http://pah.cert.ucr.edu/aqm/308/bart/WRAP_RMC_BART_Protocol_Aug15_2006.pdf.
    \14\ BART Air Modeling Protocol, Individual Source Visibility 
Assessments for BART Control Analyses, State of Wyoming, Department 
of Environmental Quality, Air Quality Division, Cheyenne, WY 
September 2006.
---------------------------------------------------------------------------

    The states established a contribution threshold of 0.5 deciviews 
for determining if a single source causes or contributes to visibility 
impairment (see section V.F.1.b of this notice for further discussion 
on the contribution threshold). If the modeling shows that a source has 
a 0.5 deciview impact at any Class I area, that source causes or 
contributes to visibility impairment and is subject-to-BART. Table 3 
shows the BART-eligible sources covered by the 309 backstop program and 
whether they are subject-to-BART.
    We are proposing to determine that the State's SIP meets the 
requirements of 40 CFR 51.308(e)(2)(i)(B).


                      Table 3--Subject-to-BART Status for Section 309 BART-Eligible Sources
----------------------------------------------------------------------------------------------------------------
               State                       Company                Facility               Subject-to-BART?
----------------------------------------------------------------------------------------------------------------
New Mexico........................  Frontier.............  Empire Abo...........  No.
New Mexico........................  Xcel Energy..........  SWPS Cunningham        No.
                                                            Station.
New Mexico........................  Duke Energy..........  Artesia Gas Plant....  No.
New Mexico........................  Duke Energy..........  Linam Ranch Gas Plant  No.

[[Page 28837]]

 
New Mexico........................  Dynegy...............  Saunders.............  No.
New Mexico........................  Giant Refining.......  San Juan Refinery....  No.
New Mexico........................  Giant Refining.......  Ciniza Refinery......  No.
New Mexico........................  Xcel Energy..........  SWPS Maddox Station..  No.
New Mexico........................  Marathon.............  Indian Basin Gas       No.
                                                            Plant.
New Mexico........................  Public Service of New  San Juan Generating    Yes.
                                     Mexico.                Station.
New Mexico........................  .....................  Rio Grande Station...  No.
New Mexico........................  Western Gas Resources  San Juan River Gas     No.
                                                            Plant.
Utah..............................  Pacificorp...........  Hunter...............  Yes.
Utah..............................  Pacificorp...........  Huntington...........  Yes.
Wyoming...........................  Basin Electric.......  Laramie River........  Yes.
Wyoming...........................  Black Hills Power &    Neil Simpson I.......  No.
                                     Light.
Wyoming...........................  Dyno Nobel...........  Dyno Nobel...........  No.
Wyoming...........................  FMC Corp.............  Green River Soda Ash   Yes.
                                                            Plant.
Wyoming...........................  FMC Corp.............  Granger River Soda     No.
                                                            Ash Plant.
Wyoming...........................  General Chemical.....  Green River Soda Ash   Yes.
                                                            Plant.
Wyoming...........................  P4 Production........  Rock Springs Coking    No.
                                                            Plant.
Wyoming...........................  Pacificorp...........  Dave Johnston........  Yes.
Wyoming...........................  Pacificorp...........  Jim Bridger..........  Yes.
Wyoming...........................  Pacificorp...........  Naughton.............  Yes.
Wyoming...........................  Pacificorp...........  Wyodak...............  Yes.
Wyoming...........................  Sinclair Oil Corp....  Sinclair Refinery....  No.
Wyoming...........................  Sinclair Refinery....  Casper...............  No.
----------------------------------------------------------------------------------------------------------------

3. Best System of Continuous Emission Control Technology
    As required by 40 CFR 51.308(e)(2)(i)(C), the State determined what 
BART would be for each subject-to-BART source covered by the 309 
backstop trading program. In the State's better-than-BART 
demonstration, all subject-to-BART EGUs were assumed to be operating at 
the presumptive SO2 emission rate of 0.15 lb/MMBtu 
established in the BART Guidelines (70 FR 39171). The 309 program also 
includes non-EGU subject-to-BART units. As explained in the better-
than-BART demonstration, the non-EGU subject-to-BART units are four 
boilers located at two trona plants in Wyoming: FMC Westvaco and 
General Chemical Green River. Wyoming made a determination of what BART 
would be for these non-EGU units. FMC Westvaco recently installed 
pollution control projects achieving a 63% reduction in SO2 
from its two boilers. Wyoming determined this control level would serve 
as a BART benchmark for all trona boilers. Thus, a 63% reduction in 
emissions from these sources was included in the BART benchmark in 
calculating emission reductions assuming the application of BART at 
these sources. Emission reductions or the BART benchmark for all 
subject-to-BART sources covered by the 309 program was calculated to be 
48,807 tons of SO2 (all supporting calculations for the 
``better-than-BART'' demonstration are located in section D of the 
State's TSD under the title 10-6-10--milestone.xls).
    We are proposing to determine the State's SIP meets the 
requirements of 40 CFR 51.308(e)(2)(i)(C).
4. Projected Emissions Reductions
    As required by 40 CFR 51.308(e)(2)(i)(D), the State has provided 
the expected emission reductions that would result from the 309 
backstop trading program. The better-than-BART demonstration projects 
that 2018 baseline emissions would be 190,656 tpy of SO2 for 
the sources covered by the 309 program in the participating states. The 
reductions achieved by the program are 48,807 tpy of SO2, 
resulting in remaining emissions of 141,849 tpy of SO2 in 
2018.
    We are proposing to determine the State's SIP meets the 
requirements of 40 CFR 51.308(e)(2)(i)(D).
5. Evidence That the Trading Program Achieves Greater Reasonable 
Progress Than BART
    The State's better-than-BART demonstration provides numerous 
reasons why the SO2 backstop trading program is better than 
BART. First, additional sources beyond BART sources are included. The 
backstop trading program includes all stationary sources with emissions 
greater than 100 tpy of SO2, and thus, encompasses 63 non-
subject-to-BART sources, which are identified in the better-than-BART 
demonstration. BART applied on a source-specific basis would not affect 
these sources, and there would be no limitation on their future 
operations under their existing permit conditions, or allowable 
emissions. The milestones will cap these sources at 2002 actual 
emissions, which are less than current allowable emissions.
    The program also provides for a cap on new source growth. Future 
impairment is prevented by capping emissions growth from sources 
covered by the program, and also by including entirely new sources in 
the region under the cap. BART applied on a source-specific basis would 
have no impact on future growth. The backstop trading program also 
provides a mass-based cap that has inherent advantages over applying 
BART to each individual source. The baseline emission projections and 
assumed reductions due to the assumption of BART-level emission rates 
on all sources subject-to-BART are all based on actual emissions, using 
2006 as the baseline. If the BART process were applied on a source-
specific basis to individual sources, emission limitations would 
typically be established as an emission rate (lbs/hr or lbs/MMBtu) that 
would account for variations in the sulfur content of fuel and 
alternative operating scenarios, or allowable emissions. A mass-based 
cap that is based on actual emissions is more stringent because it does 
not allow a source to consistently use this difference between current 
actual and allowable emissions.
    We are proposing to determine the State's 309 backstop trading 
program achieves greater reasonable progress than would be achieved 
through the installation and operation of BART and thus meets the 
requirements of 40 CFR 51.308(e)(2)(i)(E).

[[Page 28838]]

6. All Emission Reductions Must Take Place During the First Planning 
Period
    The first planning period ends in 2018. As discussed above, the 
reductions from the 309 program will occur by 2018. We are therefore 
proposing to determine the State's SIP meets the requirements of 40 CFR 
51.308(e)(2)(iii).
7. Detailed Description of the Alternative Program
    The detailed description of the backstop trading program is 
provided in Section E--Sulfur Dioxide Milestones and Backstop Trading 
Program of the State's SIP and R307-250, which we are proposing to 
approve. We are proposing to determine that the State's SIP meets the 
detailed description requirement in 40 CFR 51.308(e)(2)(iii).
8. Surplus Reductions
    We propose to approve the determination in the State's 309 SIP 
submittal that all emission reductions resulting from the emissions 
trading program are surplus as of the baseline date of the SIP, as 
required by 40 CFR 51.308(e)(2)(iv).
9. Geographic Distribution of Emissions
    Pursuant to 40 CFR 51.308(e)(3), the State used modeling conducted 
by the WRAP to compare the visibility improvement expected from source-
by source BART to the backstop trading program for the Class I areas on 
the Colorado Plateau. A summary of the modeling results can be found in 
Section K of the State's SIP, which refers to data from modeling 
included in Tables 2 and 3 of Attachment C to the 
Annex.15 16 This modeling was conducted during the 
development of the Annex to examine if the geographic distribution of 
emissions under the trading program would be substantially different 
and disproportionately impact any Class I area due to a geographic 
concentration of emissions. The modeled visibility improvement for the 
best and worst days at the Class I areas for the 309 program is similar 
to improvement anticipated from the BART scenario (within 0.1 deciview) 
on the worst and best visibility days. Thus, if we assume participation 
and milestones consistent with the model, the model demonstrates that 
the distribution of emissions between the BART scenario and the 309 
trading program are not substantially different. We note this modeling 
demonstration included nine states, many of which are not participating 
in the backstop trading program. This modeling demonstration adds 
support to our proposed determination discussed above in this section 
that the regional haze 309 SIP submittal appropriately shows the 
trading program will achieve greater reasonable progress than would be 
achieved through the installation and operation of BART, as required by 
40 CFR 51.308(e)(2)(i)(E).
---------------------------------------------------------------------------

    \15\ Voluntary Emissions Reduction Program for Major Industrial 
Sources of Sulfur Dioxide in Nine Western States and A Backstop 
Market Trading Program, an Annex to the Report of the Grand Canyon 
Visibility Transport Commission (September 2000) at C-15 and 16.
    \16\ WRAP conducted modeling of the degree of visibility 
improvement that would occur on average and for the 20% best and 
worst visibility days. The WRAP used the transfer coefficients 
developed as part of the Integrated Assessment System and used by 
the GCVTC. As noted in the Annex, this modeling has limitations 
which must be considered when interpreting the results.
---------------------------------------------------------------------------

E. Requirements for Alternative Programs With an Emissions Cap

    The following analysis shows that the State's SIP is consistent 
with the elements for trading programs required by 40 CFR 
51.308(e)(2)(vi). The backstop trading program contains milestones, 
which are in effect a cap. Under a backstop trading program, the 
provisions of a trading program are enacted only if the milestone has 
been exceeded. Since the 309 trading program is a backstop trading 
program, the provisions outlined below will only apply if the milestone 
is exceeded and the program is triggered.
1. Applicability Provisions
    Pursuant to 40 CFR 51.308(e)(2)(vi)(A), the backstop trading 
program has the same applicability requirements in all states opting to 
participate in the program. R307-250-3 contains the applicability 
provisions and provides that the backstop trading program applies to 
all stationary sources that emit 100 tons per year or more of 
SO2 in the program trigger year.
    We are proposing to approve that the State's SIP meets the 
requirements of 40 CFR 51.308(e)(2)(vi)(A).
2. Allowance Provisions
    Section E.3.a of the SIP and R307-250-8 contain the allowance 
allocation provisions as required by 40 CFR 51.308(e)(2)(vi)(B). R307-
250-8 requires sources to open a compliance account in order to track 
allowances and contains other requirements associated with those 
accounts. The SIP contains the provisions on how the State will 
allocate allowances and requires that the total number of allowances 
distributed cannot exceed the milestone for any given year.
    We are proposing to determine the State's SIP meets the 
requirements of 40 CFR 51.308(e)(2)(vi)(B).
3. Monitoring, Recordkeeping and Reporting Provisions
    Pursuant to 40 CFR 51.308(e)(2)(vi)(C)-(E), R307-250-9 provides 
that sources subject to 40 CFR part 75 under a separate requirement 
from the backstop trading program shall meet the requirements contained 
in 40 CFR part 75 with respect to MRR of SO2 emissions. If a 
unit is not subject to 40 CFR part 75 under a requirement separate from 
the trading program, the State requires that a source use one of the 
following monitoring methods: (1) Continuous emission monitoring system 
for SO2 and flow that complies with all applicable 
monitoring provisions in 40 CFR part 75; (2) if the unit is a gas- or 
oil-fired combustion device, the monitoring methodology in Appendix D 
to 40 CFR part 75, or, if applicable, the low mass emissions provisions 
(with respect to SO2 mass emissions only) of section 
75.19(c) of 40 CFR part 75; (3) one of the optional protocols, if 
applicable, in Appendix B to the SIP; \17\ or (4) a petition for site-
specific monitoring that the source submits for approval by the State 
and EPA. All the above sources are required to comply with the 
reporting and recordkeeping requirements in 40 CFR part 75.
---------------------------------------------------------------------------

    \17\ Appendix B of the SIP contains monitoring requirements for 
fuel gas combustion devices at petroleum refineries and kilns with 
positive pressure fabric filters. Appendix B specifies the 
installation of a continuous fuel gas monitoring system and 
predictive flow monitoring system, respectively. Appendix B also 
specifies requirements under 40 CFR part 75 sources must follow in 
regards to this equipment.
---------------------------------------------------------------------------

    Although most sources covered by the backstop trading program will 
be able to meet the monitoring requirements stated above, there are 
some emission units that are either not physically able to install the 
needed equipment or do not emit enough SO2 to justify the 
expense of installing these systems. As discussed in the SIP, the 
trading program allows these emission units to continue to use their 
pre-trigger monitoring methodology, but does not allow the source to 
transfer any allocation associated with that unit to another source. 
The program requires that the allowances associated with emission units 
that continue to use their pre-trigger monitoring methodology be placed 
in a special reserve compliance account, while allowances for other 
emission units are placed in a regular compliance account. Sources may 
not trade allowances out of a special reserve compliance account, even 
for use by

[[Page 28839]]

emission units at the same source, but can use the allowances to show 
compliance for that particular unit (see section E.3.i of the SIP).
    R307-250-9(1)(b) allows sources with any of the following emission 
units to apply for the establishment of a special reserve compliance 
account: (1) Any smelting operation where all of the emissions from the 
operation are not ducted to a stack; (2) any flare, except to the 
extent such flares are used as a fuel gas combustion device at a 
petroleum refinery; or (3) any other type of unit without add-on 
SO2 control equipment, if the unit belongs to one of the 
following source categories: cement kilns, pulp and paper recovery 
furnaces, lime kilns, or glass manufacturing. Pursuant to 40 CFR 
51.308(e)(2)(vi)(E), sources with a special reserve compliance account 
are required to submit to the State an annual emissions statement and 
sources are required to maintain operating records sufficient to 
estimate annual emissions consistent with the baseline emission 
inventory submitted in 1998.
    We are proposing to determine the State's SIP meets the 
requirements of 40 CFR 51.308(e)(2)(vi)(C)-(E).
4. Tracking System
    As required by 40 CFR 51.308(e)(2)(vi)(F), section E.2.f of the SIP 
provides the overarching specifications for an Emissions and Allowance 
Tracking System (EATS). According to the SIP, the EATS must provide 
that all necessary information regarding emissions, allowances, and 
transactions is publicly available in a secure, centralized database. 
The EATS must ensure that each allowance is uniquely identified, allow 
for frequent updates, and include enforceable procedures for recording 
data. If the program is triggered, the State will work with other 
states and tribes participating in the trading program to implement 
this system. More detailed specifications for the EATS are provided in 
the WEB Emission and Allowance Tracking System (EATS) Analysis in 
section E of the State's TSD. The State assumes responsibility for 
ensuring that all the EATS provisions are completed as described in its 
SIP and TSD.
    In addition, the State will work with the other participating 
states to designate one tracking system administrator (TSA). The SIP 
provides that the TSA shall be designated as expeditiously as possible, 
but no later than six months after the program trigger date. The State 
will enter into a binding contract with the TSA that shall require the 
TSA to perform all TSA functions described in the SIP, such as 
transferring and recording allowances (see section E.1.b(2) of the 
SIP).
    We are proposing to determine that the State's SIP meets the 
requirements of 40 CFR 51.308(e)(2)(iv)(F).
5. Account Representative
    Pursuant to 40 CFR 51.308(e)(2)(vi)(G), R307-250-5 contains 
provisions for the establishment of an account representative. The rule 
requires each source to identify one account representative. The 
account representative shall submit to the State and the TSA a signed 
and dated certificate that contains a certification statement verifying 
that the account representative has all the necessary authority to 
carry out the account representative responsibilities under the trading 
program on behalf of the owners and operators of the sources. The 
certification statement also needs to indicate that each such owner and 
operator shall be fully bound by the account representatives 
representations, actions, inactions, or submissions and by any decision 
or order issued to the account representative by the State regarding 
the trading program.
    We are proposing to determine the State's SIP meets the 
requirements of 40 CFR 51.308(e)(2)(vi)(G).
6. Allowance Transfers
    Section E.3.g of the State's SIP and R307-250-10 have established 
procedures pertaining to allowance transfers to meet the requirements 
of 40 CFR 51.308(e)(2)(vi)(H). R307-250-10 contains requirements 
sources must follow for allowance transfers. To transfer or retire 
allowances, the account representative shall submit the transfer 
account number(s) identifying the transferor account, the serial number 
of each allowance to be transferred, the transferor's account 
representative's name and signature, and date of submission. The 
allowance transfer deadline is midnight Pacific Standard Time on March 
1st of each year following the end of the control period. Sources must 
correctly submit transfers by this time in order for a source to be 
able to use the allowance to demonstrate compliance.
    The SIP provides the procedures the TSA must follow to transfer 
allowances. The TSA will record an allowance transfer by moving each 
allowance from the transferor account to the transferee account as 
specified by the request from the source, if the transfer is correctly 
submitted, and the transferor account includes each allowance 
identified in the transfer. Within five business days of the recording 
of an allowance transfer, the TSA shall notify the account 
representatives of both the transferor and transferee accounts, and 
make the transfer information publicly available on the Internet. 
Within five business days of receipt of an allowance transfer that 
fails to meet the requirements for transfer, the TSA will notify the 
account representatives of both accounts of the decision not to record 
the transfer, and the reasons for not recording the transfer.
    We are proposing to determine that the State's SIP meets the 
requirements of 40 CFR 51.308(e)(2)(vi)(H).
7. Compliance Provisions
    Pursuant to 40 CFR 51.308(e)(2)(vi)(I), the State has provided the 
procedures for determining compliance in R307-250-12. Per this section, 
the source must hold allowances as of the allowance transfer deadline 
in the source's compliance account (together with any current control 
year allowances held in the source's special reserve compliance 
account) in an amount not less than the total SO2 emissions 
for the control period from the source. The State determines compliance 
by comparing allowances held by the source in their compliance 
account(s) with the total annual SO2 emissions reported by 
the source. If the comparison of the allowances to emissions results in 
emissions exceeding allowances, the source's excess emissions are 
subject to the allowance deduction penalty discussed in further detail 
below.
    We are proposing to determine that the State's SIP meets the 
requirements of 40 CFR 51.308(e)(2)(vi)(I).
8. Penalty Provisions
    R307-250-12(3) provides the penalty provisions required by 40 CFR 
51.308(e)(2)(vi)(J). Per this section, a source's allowances will be 
reduced by an amount equal to three times the source's tons of excess 
emissions if they are unable to show compliance. Allowances allocated 
for the following control period will be the original allowance minus 
the allowance penalty. If the compliance account does not have 
sufficient allowances allocated for that control period, the required 
number of allowances will be deducted from the source's compliance 
account regardless of the control period for which they were allocated.
    We are proposing to determine that the State's SIP meets the 
requirements of 40 CFR 51.308(e)(2)(vi)(J).
9. Banking of Allowances
    As allowed by 40 CFR 51.308(e)(2)(vi)(K), R307-250-11 allows

[[Page 28840]]

sources to use allowances from current and prior years to demonstrate 
compliance, with some restrictions. Sources can only use 2018 
allowances to show compliance with the 2018 milestone and may not use 
allowances from prior years. In order to ensure that the use of banked 
allowances does not interfere with the attainment or maintenance of 
reasonable progress goals, the backstop trading program includes flow-
control provisions. The flow control provisions are triggered if the 
TSA determines that the banked allowances exceed ten percent of the 
milestone for the next control year, and thereby ensure that too many 
banked emissions are not used in any one year (see section E.3.h(2) of 
the SIP).
    We are proposing to determine that the State's SIP meets the 
requirements of 40 CFR 51.309(e)(2)(vi)(J).
10. Program Assessment
    Pursuant to 40 CFR 51.308(e)(2)(vi)(L), the SIP contains provisions 
for a 2013 assessment and SIP revision. For the 2013 assessment, the 
State will work with other participating states to develop a projected 
emission inventory for SO2 through the year 2018. The State 
will then evaluate the projected inventory and assess the likelihood of 
meeting the regional milestone for the year 2018. The State shall 
include this assessment as part of the 2013 progress report that must 
be submitted under 40 CFR 51.309(d)(10) (see section E.1.d of the SIP).
    We are proposing to determine the State's SIP meets the 
requirements of 40 CFR 308(e)(2)(vi)(L).

F. Provisions for Stationary Source Emissions of Nitrogen Oxides and 
Particulate Matter

    Pursuant to 40 CFR 51.309(d)(4)(vii), states must evaluate certain 
stationary sources for NOX and PM BART. BART for 
SO2 is addressed by the backstop trading program described 
above. BART requirements can be addressed through a case-by-case review 
under 40 CFR 51.308(e)(1) or through an alternative program under 40 
CFR 51.308(e)(2). The State chose to evaluate BART for NOX 
and PM under the case-by-case provisions of 40 CFR 51.308(e)(1). We are 
proposing to disapprove the State's BART determinations because we find 
that the State's determinations do not meet the requirements of 40 CFR 
51.308(e)(1), section 110(a)(2) of the CAA, and Appendix V of part 51, 
as described below.
1. BART-Eligible Sources
    The first step of a BART evaluation is to identify all the BART-
eligible sources within the state's boundaries. Utah identified the 
BART-eligible sources in Utah by utilizing the approach set out in the 
BART Guidelines (70 FR 39158). This approach provides the following 
three criteria for identifying BART-eligible sources: (1) One or more 
emission units at the facility fit within one of the 26 categories 
listed in the BART Guidelines; (2) the emission unit(s) began operation 
on or after August 6, 1962, and was in existence on August 6, 1977; and 
(3) potential emissions of any visibility-impairing pollutant from 
subject units are 250 tons or more per year. Utah used its permits and 
2001-2003 emission inventory records to identify facilities in the BART 
source categories with potential emissions of 250 tons per year or more 
for any visibility-impairing pollutant from any unit that was in 
existence on August 7, 1977 and began operation on or after August 7, 
1962. Utah determined that PacifiCorp Hunter Unit 1 and Unit 2 and 
PacifiCorp Huntington Unit 1 and Unit 2 are BART-eligible.
2. Sources Subject-to-BART
    The second step of the BART evaluation is to identify those BART-
eligible sources that may reasonably be anticipated to cause or 
contribute to any visibility impairment at any Class I area, i.e. those 
sources that are subject-to-BART. The BART Guidelines allow states to 
consider exempting some BART-eligible sources from further BART review 
because they may not reasonably be anticipated to cause or contribute 
to any visibility impairment in a Class I area. Consistent with the 
BART Guidelines, Utah used dispersion modeling performed by the WRAP 
RMC on the BART-eligible sources to assess the extent of their 
contribution to visibility impairment at surrounding Class I areas.
a. Modeling Methodology
    The BART Guidelines provide that states may use the CALPUFF \18\ 
modeling system or another appropriate model to predict the visibility 
impacts from a single source on a Class I area and to, therefore, 
determine whether an individual source is anticipated to cause or 
contribute to impairment of visibility in Class I areas, i.e., ``is 
subject-to-BART.'' The Guidelines state that we find CALPUFF is the 
best regulatory modeling application currently available for predicting 
a single source's contribution to visibility impairment (70 FR 39162).
---------------------------------------------------------------------------

    \18\ Note that our reference to CALPUFF encompasses the entire 
CALPUFF modeling system, which includes the CALMET, CALPUFF, and 
CALPOST models and other pre and post processors. The different 
versions of CALPUFF have corresponding versions of CALMET, CALPOST, 
etc. which may not be compatible with previous versions (e.g., the 
output from a newer version of CALMET may not be compatible with an 
older version of CALPUFF). The different versions of the CALPUFF 
modeling system are available from the model developer at http://www.src.com/verio/download/download.htm.
---------------------------------------------------------------------------

    To determine if each BART-eligible source has a significant impact 
on visibility, Utah used the RMC CALPUFF modeling results to estimate 
daily visibility impacts above estimated natural conditions at each 
Class I area within 300 km of any BART-eligible facility, based on 
maximum actual 24-hour emissions over a three year period (2001-2003) 
(see section D.6.c of the SIP). The RMC used the CALPUFF model for Utah 
BART sources in accordance with a modeling protocol it developed. The 
RMC protocol follows recommendations for long-range transport described 
in appendix W to 40 CFR part 51, Guideline on Air Quality Models, and 
in EPA's Interagency Workgroup on Air Quality Modeling (IWAQM) Phase 2 
Summary Report and Recommendations for Modeling Long Range Transport 
Impacts as recommended by the BART Guidelines. (40 CFR part 51, 
appendix Y, section III.A.3).
b. Contribution Threshold
    For states using modeling to determine the applicability of BART to 
single sources, the BART Guidelines note that the first step is to set 
a contribution threshold to assess whether the impact of a single 
source is sufficient to cause or contribute to visibility impairment at 
a Class I area. The BART Guidelines state that, ``[a] single source 
that is responsible for a 1.0 deciview change or more should be 
considered to `cause' visibility impairment.'' (70 FR 39104, 39161). 
The BART Guidelines also 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.'' Id. 
Further, in setting a contribution threshold, states should ``consider 
the number of emissions sources affecting the Class I areas at issue 
and the magnitude of the individual sources' impacts.'' The Guidelines 
affirm that states are free to use a lower threshold if they conclude 
that the location of a large number of

[[Page 28841]]

BART-eligible sources in proximity to a Class I area justifies this 
approach.
    Utah used a contribution threshold of 0.5 deciviews for determining 
which sources are subject-to-BART (see section D.6.3 of the SIP). Using 
a threshold of 0.5 deciviews, the State determined that all its BART-
eligible sources were subject-to-BART. We propose to approve the 
State's threshold of 0.5 deciviews.
    The State determined that the following units were BART-eligible 
and subject-to-BART: PacifiCorp Hunter Unit 1 and Hunter Unit 2 and 
PacifiCorp Huntington Unit1 and Huntington Unit 2 (see section D.6.3 of 
the SIP). All four units are tangentially fired fossil fuel fired EGUs 
each with a net generating capacity of 430 MW, permitted to burn 
bituminous coal.
    We are proposing that the State has correctly determined of the 
BART eligible and subject-to-BART units in the State.
3. BART Determinations and Limits
    The third step of a BART evaluation is to perform the BART 
analysis. BART is a source-specific control determination, based on 
consideration of several factors set out in section 169A(g)(2) of the 
CAA. These factors include the costs of compliance and the degree of 
improvement in visibility associated with the use of possible control 
technologies. EPA issued BART Guidelines (Appendix Y to Part 51) in 
2005 to clarify the BART provisions based on the statutory and 
regulatory BART requirements (70 FR 39164). The BART Guidelines 
describe the BART analysis as consisting of the following five basic 
steps:
     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.
    In determining BART, the State must consider the five statutory 
factors in section 169A of the CAA: (1) The costs of compliance; (2) 
the energy and non-air quality environmental impacts of compliance; (3) 
any existing pollution control technology in use at the source; (4) the 
remaining useful life of the source; and (5) the degree of improvement 
in visibility which may reasonably be anticipated to result from the 
use of such technology. See also 40 CFR 51.308(e)(1)(ii)(A). The five-
factor analysis occurs during steps 4 and 5 of the BART analysis. We 
note the BART Guidelines (Appendix Y to part 51) provide that states 
must follow the guidelines in making BART determinations on a source-
by-source basis for 750 MW power plants but are not required to use the 
process in the guidelines when making BART determinations for other 
types of sources. States with subject-to-BART units with a generating 
capacity less than 750 MW are strongly encouraged to follow the BART 
Guidelines in making BART determinations, but they are not required to 
do so. However, the requirement to perform a BART analysis that 
considers ``the technology available, the costs of compliance, the 
energy and nonair 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,'' is found in section 51.308(e)(1)(ii)(A) of the RHR, and 
applies to all subject-to-BART sources.
    We have found issues, as discussed below, with the State's BART 
determinations that lead us to propose disapproval. For all of the 
subject-to-BART units, the State did not properly determine BART, but 
instead concluded that a slightly lower limit than the presumptive 
limits in the BART Guidelines could be adopted in place of a detailed 
source-specific analysis of the appropriate level of controls. As noted 
above, EPA issued BART Guidelines in 2005 that address the BART 
determination process by laying out a step by step process for taking 
into consideration the factors relevant to a BART determination.
    EPA's 2005 rulemaking also established presumptive BART limits for 
certain EGUs located at power plants 750 MW or greater in size based on 
the size of the unit, the type of unit, the type of fuel used, and the 
presence or absence of controls (70 FR 39131-39136). Having identified 
controls that the Agency considered to be generally cost-effective 
across all affected units, EPA took into account the substantial degree 
of visibility improvement anticipated to result from the use of such 
controls on these EGUs and concluded that such BART-eligible sources 
should at least meet the presumptive limits. The presumptive limits 
accordingly are the starting point in a BART determination for these 
units, unless the state determines that the general assumptions 
underlying EPA's analysis are not applicable in a particular case. EPA 
did not provide that states could avoid a source-specific BART 
determination by adopting the presumptive limits. In fact, nothing in 
the State's record would support the conclusion that the presumptive 
limits represent the ``best available retrofit controls'' for all EGUs 
at these large power plants. EPA did not address the question of 
whether in specific cases more stringent controls would be called for, 
but rather simply concluded that it could not reach a generalized 
conclusion as to the appropriateness of more stringent controls for 
categories of EGUs. As a result, the BART Rule does not establish a 
``safe harbor'' from more stringent regulation under the BART 
provisions.
    Regarding BART for PM and NOX, neither PacifiCorp nor 
the State performed a BART analysis taking into account the statutory 
factors that states are required to consider in determining what 
retrofit controls are BART for PacifiCorp Hunter Unit 1 and Unit 2 and 
PacifiCorp Huntington Unit 1 and Unit 2 (information on the State's 
BART determination as summarized in this paragraph can be found in 
section D.6.d of the SIP). The State determined that it could rely on 
the presumptive limits to determine what NOX BART is for the 
subject-to-BART sources. PacifiCorp proposed and the State determined, 
without any analysis, that the NOX BART limit for all the 
subject-to-BART units was 0.26 lb/MMBtu (30-day rolling average), which 
is the current operating permit limit for the source and which the 
State assumes can be achieved by the installation and operation of low 
NOX burners (LNBs) and separated overfire air (SOFA). The 
State reasoned that since this limit is slightly lower than the 
presumptive limit, which is 0.28 lb/MMBtu (30-day rolling average), it 
constituted NOX BART for these sources. There are no 
presumptive limits established for PM. PacifiCorp proposed and the 
State agreed, without any analysis, that the PM BART limits for all 
subject-to-BART units was the current operating permit limit of 0.05 
lb/MMBtu (30-day rolling average), which the State assumes can be 
achieved by the installation and operation of fabric filter 
baghouses.\19\
---------------------------------------------------------------------------

    \19\ These are new emission limits, and in accordance with the 
SIP, PacifiCorp is required to install and operate BART no later 
than five years after EPA approval of the plan.
---------------------------------------------------------------------------

    Because PacifiCorp units have a 430 MW generating capacity, the 
State is not required to follow the BART Guidelines in making BART 
determinations for the units. However, neither the State nor PacifiCorp 
have completed a BART analysis that considers the statutory factors 
under 40 CFR 51.308(e)(1)(ii)(A),

[[Page 28842]]

which provides that: ``The determination of BART must be based on an 
analysis of the best system of continuous emission control technology 
available and associated emission reductions achievable for each BART-
eligible source that is subject-to-BART within the State. In this 
analysis, the State must take into consideration the technology 
available, the costs of compliance, the energy and nonair 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.''
    Furthermore, the State's regional haze SIP does not contain the 
elements necessary to make the proposed emission limits practically 
enforceable. Utah's SIP section D.6.d contains controls, emission 
limits and general compliance schedules, but does not include SIP 
provisions specifying averaging times, record-keeping, monitoring, and 
specific schedules for compliance. The CAA requires that SIPs, 
including the regional haze SIP, contain elements sufficient to ensure 
emission limits are practically enforceable.\20\ Other applicable 
regulatory provisions are contained in Appendix V to part 51--Criteria 
for Determining the Completeness of Plan Submissions.\21\ Utah suggests 
that including averaging times, recordkeeping, monitoring, and specific 
schedules for compliance in the source's operating permits,\22\ and not 
as part of the SIP, is sufficient to meet the statutory and regulatory 
requirements discussed above.\23\ It is not sufficient to include these 
elements in a permit or agreement that is not made part of the SIP. EPA 
does not consider operating permit conditions adequate to meet this 
enforceability requirement, as permit conditions may be modified 
without going through the SIP approval process.
---------------------------------------------------------------------------

    \20\ CAA Section 110(a)(2) states that SIPs ``shall (A) include 
enforceable emission limitations and other control measures, means, 
or techniques (including economic incentives such as fees, 
marketable permits, and auctions of emissions rights), as well as 
schedules and timetables for compliance, as may be necessary or 
appropriate to meet the applicable requirements of this chapter; (C) 
include a program to provide for the enforcement of the measures 
described in subparagraph (A), and regulation of the modification 
and construction of any stationary source within the areas covered 
by the plan as necessary to assure that national ambient air quality 
standards are achieved, including a permit program as required in 
parts C and D of this subchapter; (F) require, as may be prescribed 
by the Administrator--(i) the installation, maintenance, and 
replacement of equipment, and the implementation of other necessary 
steps, by owners or operators of stationary sources to monitor 
emissions from such sources, (ii) periodic reports on the nature and 
amounts of emissions and emissions-related data from such sources, 
and (iii) correlation of such reports by the State agency with any 
emission limitations or standards established pursuant to this 
chapter, which reports shall be available at reasonable times for 
public inspection''
    \21\ Appendix V part 51 states in section 2.2 that complete SIPs 
contain: ``(g) Evidence that the plan contains emission limitations, 
work practice standards and recordkeeping/reporting requirements, 
where necessary, to ensure emission levels''; and ``(h) Compliance/
enforcement strategies, including how compliance will be determined 
in practice.''
    \22\ Utah Division of Air Quality Approval Orders: Huntington 
Unit 2--AN0238012-05, Huntington Unit 1--AN0102380019-09; and Hunter 
Units 1 and 2--AN0102370012-08.
    \23\ See response to EPA comments in the State's September 9, 
2008 regional haze SIP submittal.
---------------------------------------------------------------------------

    During the State's development of its regional haze SIP, we 
consistently informed in comment letters and in conversations that 
foregoing a BART analysis is not acceptable and that the SIP must 
contain the necessary elements to ensure emission limits, including 
BART emission limits, are practicably enforceable. EPA sent letters to 
the State in 2008 and 2011 outlining our concerns with the State's 
proposed SIP as discussed above.\24\
---------------------------------------------------------------------------

    \24\ See August 4, 2008 letter from Callie A. Videtich, EPA 
Region 8, to Cheryl Heying, Utah Air Quality Division and February 
4, 2011 letter from Deborah Lebow-Aal, EPA Region 8, to Cheryl 
Heying, Utah Air Quality Division in the Supporting and Related 
Materials section of this docket.
---------------------------------------------------------------------------

    Therefore, we are proposing to find that the State did not properly 
follow the requirements of 40 CFR 51.308(e)(1)(ii)(A) and section 
169A(g)(2) of the CAA in determining PM and NOX BART for 
PacifiCorp Hunter Unit 1 and Unit 2 and PacifiCorp Huntington Unit 1 
and Unit 2. Specifically, neither the State nor PacifiCorp, conducted a 
BART analyses for each of the units that took into account the five 
BART factors. We are also proposing to partially disapprove the State's 
SIP because it does not contain the elements necessary to make the BART 
limits practically enforceable as required by section 110(a)(2) of the 
CAA and Appendix V to part 51. For these reasons, we are proposing to 
disapprove the State's determination that BART for NOX for 
PacifiCorp Hunter Unit 1 and Unit 2 and PacifiCorp Huntington Unit 1 
and Unit 2 is a NOX emission limit of 0.26 lb/MMBtu (30-day 
rolling average) (assumed to be achieved by LNBs plus SOFA). We are 
also proposing to disapprove the State's determination that BART for PM 
for PacifiCorp Hunter Unit 1 and Unit 2 and PacifiCorp Huntington Unit 
1 and Unit 2 is an emission limit of 0.05 lb/MMBtu (30-day rolling 
average) (assumed to be achieved by fabric filter baghouses).

G. Mobile Sources

    Pursuant to 40 CFR 51.309(d)(5)(i), the State, in collaboration 
with the WRAP, assembled a comprehensive statewide inventory of mobile 
source emissions. The inventory included on-road and non-road mobile 
source emissions inventories for western states for the 2003 base year 
and emission projections for the year 2018.\25\ The inventory shows a 
continuous decline in emissions from mobile sources from VOC, 
NOX, PM2.5, EC, and OC emissions over the period 
of 2003-2018. Between 2003 and 2018, the inventory shows that there 
will be a 54 percent decrease in NOX emissions, a 39 percent 
decrease in OC, a 24 percent decrease in EC, a 38 percent decrease of 
PM2.5, and a 56 percent decrease of VOC. Per 40 CFR 
51.309(d)(5)(i)(A), the inventory shows a decline in the required 
mobile source emissions categories, and therefore, no further action is 
required by the State to address mobile source emissions (see section 
F.2.a of the SIP).
---------------------------------------------------------------------------

    \25\ Detailed information on the emission inventory is contained 
in the ENVIRON Report WRAP Mobile Source Emission Inventories 
Update, May 2006. This report is included in the Supporting and 
Related Materials section of the docket.
---------------------------------------------------------------------------

    Pursuant to 40 CFR 51.309(d)(5)(i)(B), emission inventory 
projections show that there will be a 99 percent decrease in 
SO2 emissions from non-road mobile sources for 2003-2018. 
The reduction will result from the implementation of EPA's rule titled 
Control of Emissions of Air Pollution from Non-road Diesel Engines and 
Fuel (see 69 FR 38958). A 99 percent reduction in SO2 from 
non-road mobile sources is consistent with the goal of reasonable 
progress and that no other long-term strategies are necessary to 
address SO2 emissions from non-road mobile sources.
    We are proposing to determine the State's SIP meets the 
requirements of 40 CFR 51.309(d)(5).

H. Programs Related to Fire

    EPA has proposed approval of the requirements related to fire under 
40 CFR 51.309(d)(6) in a separate action (76 FR 69217).

I. Paved and Unpaved Road Dust

    WRAP performed an assessment of the impact of dust emissions from 
paved and unpaved roads on the 16 Class I areas of the Colorado 
Plateau. The WRAP modeled and calculated the significance of road dust 
in terms of the impact on visibility on the worst 20 percent days. The 
modeled regional impact of road dust emissions ranged from 0.31 
deciviews at the Black Canyon of the Gunnison National Park

[[Page 28843]]

to 0.08 deciviews at the Weminuche Wilderness Area. (For more 
information on the WRAP modeling and assessment of road dust impacts, 
see Chapter 7 of the WRAP TSD). Based on the WRAP modeling, the State 
has concluded that road dust is not a significant contributor to 
visibility impairment in the 16 Class I areas. Since the State has 
found that road dust is not a significant contributor to visibility 
impairment, the State did not include road dust control strategies in 
the SIP pursuant to 40 CFR 51.309(d)(7) (see section H.2.b of the SIP).
    The State will track road dust emissions with the assistance of the 
WRAP and provide an update on paved and unpaved road dust emission 
trends, including any modeling or monitoring information regarding the 
impact of these emissions on visibility in the 16 Colorado Plateau 
Class I Areas. These updates will include a reevaluation of whether 
road dust is a significant contributor to visibility impairment. These 
updates shall be part of the periodic implementation plan revisions 
pursuant to 40 CFR 51.309(d)(10) (see section H.2.a of the SIP).
    We propose to determine the State's SIP meets the requirements of 
40 CFR 51.309(d)(7).

J. Pollution Prevention

    Under 40 CFR 51.309(d)(8), states must provide information on 
renewable energy and other pollution prevention efforts in the state. 
40 CFR 51.309(d)(8) does not require states to adopt any new measures 
or regulations. Thus, we find the information Utah provided adequate to 
meet the requirements of 40 CFR 51.309(d)(8) as discussed below (see 
section I of the SIP).
1. Description of Existing Pollution Prevention Programs
    Pursuant to 40 CFR 51.309(d)(8)(i), section I of the State's TSD 
summarizes all pollution prevention and renewable energy programs 
currently in place in Utah. The State's SIP provides an estimate of 
renewable energy generating capacity in megawatts for each of the 
renewable energy categories (see Table 12 of the SIP). Total installed 
generation capacity within Utah in 2002 was 5,485 MW. Renewable energy 
generation capacity represented 0.77 percent of the total installed 
capacity.
2. Incentive Programs
    Per 40 CFR 51.309(d)(8)(ii), the State has provided incentives for 
early compliance by participating in the 309 regional SO2 
backstop trading program. The backstop trading program allows for early 
reduction credits. Sources of SO2 subject to the trading 
program that reduce emissions prior to the program trigger date shall 
receive additional emission allowances. The source may use such 
allowances for compliance purposes or may sell them to other parties.
3. Programs To Preserve and Expand Energy Conservation Efforts
    Per 40 CFR 51.309(d)(8)(iii), the State provided a table that 
discusses the programs within the State that preserve and expand energy 
conservation efforts (see Table 17 in the SIP). Such programs include 
the Residential Energy Efficiency Program and Salt Lake City Climate 
Action Plan Program.
4. Potential for Renewable Energy
    Pursuant to 40 CFR 51.309(d)(8)(iv), the renewable energy resource 
potential in Utah and its geographic distribution across the State have 
been characterized succinctly in the Renewable Energy Atlas of the 
West.\26\ The Renewable Energy Atlas of the West was assembled using 
best available renewable energy resource maps and data. The State used 
the Renewable Energy Atlas of the West to determine the potential for 
renewable energy across the State. The State has summarized the 
potential for renewable energy development in section I.10.B of the 
SIP.
---------------------------------------------------------------------------

    \26\ Land and Water Fund of the Rockies, Northwest Sustainable 
Energy for Economic Development, and Green Info Network with support 
from the Hewlett Foundation and the Energy Foundation. Renewable 
Energy Atlas of the West: A Guide to the Region's Resource 
Potential. Available in section I of the State's TSD.
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5. Projections of Renewable Energy Goals, Energy Efficiency, and 
Pollution Prevention Activities
    Pursuant to 40 CFR 51.309(d)(8)(v), the State has used projections 
made by the WRAP of the short and long-term emissions reductions, 
visibility improvements, cost savings, and secondary benefits 
associated with renewable energy goals, energy efficiency, and 
pollution prevention activities.\27\ The document referenced in the 
prior sentence provides overall projections of visibility improvements 
for the 16 Class I areas. These projections include the combined 
effects of all measures in this SIP, including air pollution prevention 
programs. Although emission reductions and visibility improvements from 
air-pollution prevention programs are expected at some level, they were 
not explicitly calculated because the resolution of the regional air 
quality modeling system is not currently sufficient to show any 
significant visibility changes resulting from the marginal 
NOX emission reductions expected from air pollution 
prevention programs.
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    \27\ A complete description of these projections can be found in 
section I of the Utah TSD in a document titled Economic Assessment 
of Implementing the 10/20 Goals and Energy Efficiency 
Recommendations.
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6. Programs To Achieve the GCVTC Renewable Energy Goal
    Pursuant to 40 CFR 51.309(d)(8)(vi), the State will rely on current 
renewable energy programs as described in section I.10.a of the SIP to 
demonstrate progress in achieving the renewable energy goal of the 
GCVTC. The GCVTC's goal is that that renewable energy will comprise 10 
percent of the regional power needs by 2005 and 20 percent by 2015. The 
State will submit progress reports in 2013 and 2018, describing the 
State's contribution toward meeting the GCVTC renewable energy goals. 
To the extent that it is not feasible for the State to meet its 
contribution to these goals, the State will identify what measures were 
implemented to achieve its contribution, and explain why meeting its 
contribution was not feasible.

K. Additional Recommendations

    As part of the 1996 GCVTC report to EPA, the Commission included 
additional recommendations that EPA did not adopt as part of 40 CFR 
51.309. Pursuant to 40 CFR 51.309(d)(9), the State has evaluated the 
additional recommendations of the GCVTC to determine if any of these 
recommendations could be practicably included in the SIP.\28\ Based on 
this evaluation, the State determined no additional measures were 
practicable or necessary to demonstrate reasonable progress (see 
section J of the SIP).
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    \28\ The State's complete evaluation is included in the State's 
Report to the Environmental Protection Agency and the Public to 
Satisfy the Requirements of 40 CFR 51.309(d)(9) in section J of the 
State's TSD.
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    We are proposing to determine that the State's SIP meets the 
requirements of 40 CFR 51.309(d)(9).

L. Periodic Implementation Plan Revisions

    Pursuant to 40 CFR 51.309(d)(10)(i), section L of the SIP requires 
the State to submit to EPA, as a SIP revision, periodic progress 
reports for the years 2013 and 2018. The State will assess whether 
current programs are achieving reasonable progress in Class I areas 
within Utah, and Class I areas outside Utah that are affected by 
emissions from Utah. The State will address the elements listed under 
40 CFR 51.309(d)(10)(i)(A) through (G) as

[[Page 28844]]

summarized below: (1) Implementation status of 2003 SIP measures; (2) 
summary of emissions reductions; (3) assessment of most/least impaired 
days; (4) analysis of emission reductions by pollutant; (5) significant 
changes in anthropogenic emissions; (6) assessment of 2003 SIP 
sufficiency; and (7) assessment of visibility monitoring strategy.
    Pursuant to 40 CFR 51.309(d)(10)(ii), the State will take one of 
the following actions based upon information contained in each periodic 
progress report. The State will provide a negative declaration 
statement to EPA saying that no SIP revision is needed if the State 
determines reasonable progress is being achieved. If the State finds 
that the SIP is inadequate to ensure reasonable progress due to 
emissions from outside the State, the State will notify EPA and the 
other contributing state(s), and initiate efforts through a regional 
planning process to address the emissions in question. If the State 
finds that the SIP is inadequate to ensure reasonable progress due to 
emissions from another country, Utah will notify EPA and provide 
information on the impairment being caused by these emissions. If the 
State finds that the SIP is inadequate to ensure reasonable progress 
due to emissions from within the State, the State will develop emission 
reduction strategies to address the emissions and revise the SIP no 
later than one year from the date that the progress report was due.
    We propose to determine that the State's SIP meets the requirements 
of 40 CFR 51.309(d)(10).

M. Interstate Coordination

    Pursuant to 40 CFR 51.309(d)(11), the State has participated in 
regional planning and coordination with other states by participating 
in the WRAP while developing its emission reduction strategies under 40 
CFR 51.309. Appendix D of the SIP contains detailed information on the 
interstate coordination programs developed by the WRAP and the State's 
participation in those programs. The backstop trading program in the 
SIP and companion rules involved coordination of the three states 
(Wyoming, Utah, and New Mexico, including Albuquerque) in its 
development and will continue to involve coordination of the 
participants once it is implemented.
    We propose to determine the State's SIP is consistent with the 40 
CFR 51.309(d)(11).

N. Additional Class I Areas

    The five Class I areas in Utah (Zion National Park, Bryce Canyon 
National Park, Arches National Park, Capitol Reef National Park, and 
Canyonlands National Park) are located on the Colorado Plateau. Since 
the State does not have Class I areas off the Colorado Plateau, the 
State of Utah is not required to take action pursuant to 40 CFR 
51.309(g)(1).

VI. Proposed Action

    In this action, EPA is proposing to partially approve and partially 
disapprove a Utah SIP revision submitted on May 26, 2011 that addresses 
the RHR requirements for the mandatory Class I areas under 40 CFR 
51.309. Specifically, EPA is proposing to approve all sections of the 
SIP submittal as meeting the requirements under 40 CFR 51.309, with the 
exception of the requirements under 40 CFR 51.309(d)(4)(vii) pertaining 
to NOX and PM BART. EPA is proposing to disapprove the 
State's NOX and PM BART determinations and limits in section 
D.6.d of the SIP for the following four subject-to-BART EGUs: 
Pacificorp Hunter Unit 1 and Hunter Unit 2 and PacifiCorp Huntington 
Unit 1 and Huntington Unit 2. EPA is proposing to disapprove these BART 
determinations because they do not comply with our regulations under 40 
CFR 51.308(e)(1) or sections 110(a)(2) and 169A(g)(2) of the CAA.
    We are proposing to approve specific sections of the State's 
September 9, 2008 SIP submittal. Specifically, we are proposing to 
approve UAR R307-250, Western Backstop Sulfur Dioxide Trading Program 
and R307-150, Emission Inventories. We are taking no action on the rest 
of the September 9, 2008 submittal as the May 26, 2011 submittal 
supersedes and replaces the remaining sections of the September 9, 2008 
SIP submittal, except for the requirements pertaining to smoke 
management. We have taken proposed action on the smoke management 
requirements in a separate action (76 FR 69217).

VII. Statutory and Executive Order Reviews

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. 
Burden is defined at 5 CFR 1320.3(b).

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's proposed 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 proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This 
proposed rule will not impose any requirements on small entities 
because small entities are not subject to the requirements of this 
rule. We continue to be interested in the potential impacts of the 
proposed rule on small entities and welcome comments on issues related 
to such impacts.

D. Unfunded Mandates Reform Act (UMRA)

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for federal agencies to assess the 
effects of their regulatory actions on State, local, and Tribal 
governments and the private sector. Under section 202 of UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and Tribal governments, in 
the aggregate, or to the private sector, of $100 million or more 
(adjusted for inflation) in any one year. Before

[[Page 28845]]

promulgating an EPA rule for which a written statement is needed, 
section 205 of UMRA generally requires EPA to identify and consider a 
reasonable number of regulatory alternatives and adopt the least 
costly, most cost-effective, or least burdensome alternative that 
achieves the objectives of the rule. The provisions of section 205 of 
UMRA do not apply when they are inconsistent with applicable law. 
Moreover, section 205 of UMRA allows EPA to adopt an alternative other 
than the least costly, most cost-effective, or least burdensome 
alternative if the Administrator publishes with the final rule an 
explanation why that alternative was not adopted. Before EPA 
establishes any regulatory requirements that may significantly or 
uniquely affect small governments, including Tribal governments, it 
must have developed under section 203 of UMRA a small government agency 
plan. The plan must provide for notifying potentially affected small 
governments, enabling officials of affected small governments to have 
meaningful and timely input in the development of EPA regulatory 
proposals with significant federal intergovernmental mandates, and 
informing, educating, and advising small governments on compliance with 
the regulatory requirements.
    Under Title II of UMRA, EPA has determined that this proposed rule 
does not contain a federal mandate that may result in expenditures that 
exceed the inflation-adjusted UMRA threshold of $100 million by State, 
local, or Tribal governments or the private sector in any one year. In 
addition, this proposed rule does not contain a significant federal 
intergovernmental mandate as described by section 203 of UMRA nor does 
it contain any regulatory requirements that might significantly or 
uniquely affect small governments.

E. Executive Order 13132: Federalism

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612 (Federalism) and 12875 (Enhancing the 
Intergovernmental Partnership). Executive Order 13132 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.'' Under Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law unless the 
Agency consults with State and local officials early in the process of 
developing the proposed regulation.
    This rule will not have substantial direct effects on the States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government, as specified in Executive Order 13132, because it 
merely addresses the State not fully meeting its obligation to prohibit 
emissions from interfering with other states measures to protect 
visibility established in the CAA. Thus, Executive Order 13132 does not 
apply to this action. In the spirit of Executive Order 13132, and 
consistent with EPA policy to promote communications between EPA and 
State and local governments, EPA specifically solicits comment on this 
proposed rule from State and local officials.

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

    Executive Order 13175, entitled Consultation and Coordination With 
Indian Tribal Governments (65 FR 67249, November 9, 2000), requires EPA 
to develop an accountable process to ensure ``meaningful and timely 
input by tribal officials in the development of regulatory policies 
that have tribal implications.'' This proposed rule does not have 
tribal implications, as specified in Executive Order 13175. It will not 
have substantial direct effects on tribal governments. Thus, Executive 
Order 13175 does not apply to this rule.

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

    EPA interprets EO 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 EO has the 
potential to influence the regulation. This action is not subject to EO 
13045 because it implements specific standards established by Congress 
in statutes. However, to the extent this proposed rule will limit 
emissions of NOX, SO2, and PM, the rule will have 
a beneficial effect on children's health by reducing air pollution.

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

    This action is not subject to Executive Order 13211 (66 FR 28355 
(May 22, 2001)), because it is not a significant regulatory action 
under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 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.
    This proposed rulemaking does not involve technical standards. 
Therefore, EPA is not considering the use of any voluntary consensus 
standards.

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

    Executive Order 12898 (59 FR 7629, February 16, 1994), establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    We have determined that this proposed action, if finalized, will 
not have disproportionately high and adverse human health or 
environmental effects on minority or low-income populations because it 
increases the level of environmental protection for all

[[Page 28846]]

affected populations without having any disproportionately high and 
adverse human health or environmental effects on any population, 
including any minority or low-income population.

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, does not 
apply because this action is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Nitrogen dioxide, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Dated: April 26, 2012.
James B. Martin,
Regional Administrator, Region 8.
[FR Doc. 2012-11848 Filed 5-15-12; 8:45 am]
BILLING CODE 6560-50-P