[Federal Register Volume 77, Number 114 (Wednesday, June 13, 2012)]
[Rules and Regulations]
[Pages 35287-35291]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-14270]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2011-0091, EPA-R03-OAR-2011-0584; FRL-9685-2]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Regional Haze State Implementation Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is finalizing the limited approval of the Commonwealth of 
Virginia's Regional Haze State Implementation Plan (SIP) revision. EPA 
is taking this action because Virginia's SIP revision, as a whole, 
strengthens the Virginia SIP. This action is being taken in accordance 
with the requirements of the Clean Air Act (CAA) and EPA's rules for 
states to prevent and remedy future and existing anthropogenic 
impairment of visibility in mandatory Class I areas through a regional 
haze program. EPA is also approving this revision as meeting the 
infrastructure requirements relating to visibility protection for the 
1997 8-hour ozone National Ambient Air Quality Standard (NAAQS) and the 
1997 and 2006 fine particulate matter (PM2.5) NAAQS.

DATES: This final rule is effective on July 13, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2011-0091, EPA-R03-OAR-2011-0584. All documents in 
the docket are listed in the www.regulations.gov Web site. Although 
listed in the electronic docket, some information is not publicly 
available, i.e., confidential business information (CBI) or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, is not placed on the Internet 
and will be publicly available only in hard copy form. Publicly 
available docket materials are available either electronically through 
www.regulations.gov or in hard copy for public inspection during normal 
business hours at the Air Protection Division, U.S. Environmental 
Protection Agency, Region III, 1650 Arch Street, Philadelphia, 
Pennsylvania 19103. Copies of the State submittal are available at the 
Virginia Department of Environmental Quality, 629 East Main Street, 
Richmond, Virginia 23219.

FOR FURTHER INFORMATION CONTACT: Melissa Linden, (215) 814-2096, or by 
email at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    Throughout this document, whenever ``we,'' ``us,'' or ``our'' is 
used, we mean EPA. On January 25, 2012 (77 FR 3691), EPA published a 
notice of proposed rulemaking (NPR) for the Commonwealth of Virginia. 
The NPR proposed limited approval and limited disapproval of Virginia's 
Regional Haze SIP. The formal SIP revisions were submitted by the 
Virginia Department of Environmental Quality (VADEQ) on July 17, 2008, 
March 6, 2009, January 14, 2010, October 4, 2010, November 19, 2010, 
and May 6, 2011. This revision also meets the requirements of CAA 
sections 110(a)(2)(D)(i)(II) and 110 (a)(2)(J), relating to visibility 
protection for the 1997 8-hour ozone NAAQS and the 1997 and 2006 
PM2.5 NAAQS.

II. Summary of SIP Revision

    The SIP revision includes a long term strategy with enforceable 
measures ensuring reasonable progress towards meeting the reasonable 
progress goals for the first planning period through 2018. Virginia's 
Regional Haze Plan contains the emission reductions needed to achieve 
Virginia's share of emission reductions and sets the reasonable 
progress goals for other states to achieve reasonable progress at the 
two Class I Areas within Virginia, Shenandoah National Park and James 
River Face Wilderness Area. The specific requirements of the CAA and 
EPA's Regional Haze Rule (RH rule) (64 FR 35732, July 1, 1999) and the 
rationale for EPA's proposed action are explained in the NPR and will 
not be restated here. EPA received numerous adverse comments on the 
January 25, 2012 NPR. A summary of the comments submitted and EPA's 
responses are provided in section III of this document.

III. Summary of Public Comments and EPA Responses

    Comment: The commenter argued that EPA's proposed limited approval/
limited disapproval action based on Virginia's reliance on clean air 
interstate rule (CAIR) is unwarranted and should be withdrawn. Instead, 
the commenter states that EPA should grant full and unconditional 
approval of the Virginia Regional Haze SIP. The commenter disagreed 
that CAIR renders the State's SIP unable to satisfy all of the CAA's 
regional haze SIP requirements. The commenter noted that Virginia's SIP 
was submitted prior to the remand of CAIR and relied on the 
requirements under 40 CFR 51.308(e)(4), which remain in effect at this 
time. The commenter argued that as a result, the Virginia SIP is 
entirely consistent with the applicable law. The commenter also argued 
that if the D.C. Circuit invalidates the cross state air pollution rule 
(CSAPR), EPA's limited disapprovals of regional haze SIPs due to their 
reliance on the CAIR equals best available retrofit technology (BART) 
provision of the regional haze rules will have created unnecessary 
complications for states that should properly be able to continue their 
reliance on CAIR. The commenter argued that EPA does not have a basis 
to propose or promulgate disapproval or limited disapproval of a 
Regional Haze SIP due to its reliance on CAIR and on 40 CFR 
51.308(e)(4) because the SIP is fully compliant with the relevant 
regulations as they exist today.\1\ The commenter believes that the 
only proper course of action for EPA is to promptly promulgate a full 
and unconditional approval of the Virginia SIP.
---------------------------------------------------------------------------

    \1\ The word ``today'' in the text refers to the date of the 
comment letter, February 24, 2012.
---------------------------------------------------------------------------

    Response: EPA disagrees with the commenter and has determined the 
limited approval/limited disapproval is appropriate for this SIP. The 
requirements for a BART alternative program, specific to trading 
programs in 40 CFR 51.308(e)(2) state that ``such an

[[Page 35288]]

emissions trading program or other alternative measure must achieve 
greater reasonable progress than would be achieved through the 
installation and operation of BART.'' EPA's analysis, in 2005, showing 
that CAIR would provide for greater reasonable progress than BART, was 
based on the then reasonable assumption that CAIR met the requirements 
of the CAA and would remain in place. EPA's Transport Rule, commonly 
referred to as the CSAPR, sunset the requirements of CAIR. EPA's 
decision to sunset CAIR is the result of a decision by the Court of 
Appeals for the D.C. Circuit remanding CAIR to EPA and leaving CAIR in 
place only ``temporarily,'' as noted in our notice of proposed 
rulemaking and by the commenters. As such, notwithstanding the 
regulatory text in 40 CFR 51.308(e)(4), we cannot fully approve the 
Virginia Regional Haze SIP which relies heavily on CAIR as part of its 
long-term strategy and to meet the BART requirements.
    The EPA has also completed an analysis and has proposed the 
Transport Rule as an alternative to BART for electrical generating 
units (EGUs) located in the Transport Rule states (which include 
Virginia). (76 FR 82219, December 30, 2011). Given the significance of 
the emissions reductions from CAIR to Virginia's demonstration that it 
has met the requirements of the Regional Haze Rule, EPA proposed 
issuing a limited disapproval of the Virginia SIP. Although CAIR is 
currently being administered by EPA pursuant to an order by the Court 
of Appeals for the D.C. Circuit in EME Homer City Generation, L.P. v. 
EPA, it will not remain in effect indefinitely. For this reason, EPA 
cannot fully approve Regional Haze SIP revisions that rely on CAIR for 
emission reduction measures.
    Comment: The commenter stated that EPA's proposal of approving the 
reasonable progress controls for Mead Westvaco is contrary to EPA's 
position in the proposal of Arkansas's Regional Haze SIP that the 
uniform rate of progress (URP) does not establish a ``safe harbor'' and 
is not supported by the preamble to the RH rule (64 FR 35732). The 
commenter also stated that VADEQ and EPA placed undue weight on the 
premise that the visibility improvements projected for the affected 
Class I areas are in excess of those needed to be on the URP glidepath, 
and therefore, a less-rigorous Reasonable Progress analysis was 
acceptable. Another commenter gave a similar comment but added that the 
1 percent contribution to impairment before a source will be considered 
for control for reasonable progress purposes is arbitrary.
    Response: EPA disagrees with the commenter regarding the comments 
on the URP. The RH rule preamble states that ``[i]f the State 
determines that the amount of progress identified through the [URP] 
analysis is reasonable based upon the statutory factors, the State 
should identify this amount of progress as its reasonable progress goal 
for the first long-term strategy, unless it determines that additional 
progress beyond this amount is also reasonable. If the State determines 
that additional progress is reasonable based on the statutory factors, 
the State should adopt that amount of progress as its goal for the 
first long-term strategy. Virginia did determine that the reasonable 
progress goals (RPG) for the first implementation period would be 
beyond the URP and developed the RPGs using the four factors required 
by the statute. As such, the URP glidepath was not a stopping point for 
analysis done by VADEQ. The analysis of reasonable measures evaluated 
by VISTAS can be found in Virginia's appendices. The 1 percent 
contribution of impairment for reasonable progress is not arbitrary, 
but rather explained in Virginia's submittal.
    Comment: The commenter stated that a 90 percent efficient scrubber 
at Mead Westvaco should be reasonable progress instead of the upgrade 
to the current flue gas desulfurization (FGD). The commenter stated 
that the new scrubber with 90 percent efficiency could have a 
cumulative improvement of visibility on four Class I areas of 0.8-1.3 
deciview beyond the BART limit. The commenter also stated that the 
upgrade to the current FGD results in a cumulative improvement of 
visibility on four Class I areas of 0.3 deciview beyond BART.
    Response: The visibility improvement provided by the commenter is 
calculated using a cumulative impact, combining the improvement at all 
class I areas impacted by the source. The RH rule does not require the 
use of cumulative impact in reviews done by the state, and VADEQ chose 
not to assess visibility on a cumulative basis. Virginia did include in 
their determination for reasonable progress that the upgrade of the FGD 
at Mead Westvaco, along with the other measures in the long-term 
strategy ensure that the state is on the glidepath for achieving 
natural background for the 20 percent worst days by 2064 and that there 
is no degradation to the 20 percent best days as required. Thus, EPA 
agrees that the upgrade to the FGD is acceptable for reasonable 
progress in the regional haze planning period.
    Comment: The commenter believes that VADEQ overestimated the costs 
of a New Caustic flue gas desulfurization (FGD) and new Spray Dryer 
with Baghouse, while the commenters analysis shows that the costs of a 
New Caustic FGD and new Spray Dryer with Baghouse are reasonable in 
terms of total and incremental costs per ton and per deciview.
    Response: EPA disagrees with the commenter's analysis of costs of 
the FGD and baghouse. The approach used by the commenter to calculate 
the revised costs of the New Caustic FGD and Spray Dryer with Baghouse 
use a cumulative total visibility impact and this approach is not 
required by EPA, but rather recommended. The state has the option to 
use a cumulative approach for calculating the cost per deciview of a 
control technology. EPA therefore agrees with VADEQ in their reasoned 
cost analysis for BART controls for sulfur dioxide (SO2).
    Comment: The commenter stated VADEQ was incorrect and inconsistent 
in applying its cost thresholds, and its conclusions are inconsistent 
with BART determinations for paper mill power boilers in Virginia and 
in other states.
    Response: EPA disagrees that VADEQ's BART determinations are 
incorrect, or inconsistent, or unreasonable. BART determinations are 
done on a case-by-case basis, so it is possible that a control 
technology for one power boiler may not be a reasonable option for 
another. The state has the discretion to rank the technologies of the 
BART determination in their analysis. Virginia has completed this 
analysis to show the upgrade of the current FGD is BART and EPA agrees. 
The commenter supplied other BART determinations which have different 
fuel types than that of the Mead Westvaco Facility in Virginia, and the 
power boiler number 9 is in a combined stack with three other power 
boilers that go through the FGD and will receive additional 
SO2 reductions as a result of the upgrade required for BART. 
Therefore, the commenter's statements are not analogous, and EPA finds 
Virginia's determinations reasonable.
    Comment: The commenter stated it believed that EPA must disapprove 
the Virginia Regional Haze SIP due to the reliance on CAIR as a BART 
substitute and as part of its reasonable progress demonstration.
    Response: EPA disagrees in general with this comment. EPA 
understands that CAIR has been remanded and that is the reason that the 
limited disapproval of the Virginia Regional Haze SIP is being 
promulgated. EPA has proposed that the Transport Rule is

[[Page 35289]]

better than BART and proposed a Federal implementation plan (FIP) for 
Virginia to replace the CAIR reliance. (76 FR 82219) EPA does recognize 
that the other additional measures in the SIP submitted by Virginia 
help strengthen the Virginia SIP as a whole and are the basis for the 
limited approval portion of this action.
    Comment: The commenter stated that the Virginia Regional Haze SIP 
does not provide enough reductions to meet the uniform rate of progress 
for James River Face Wilderness Area on the 20 percent best days and 
does not provide a reasoned justification for failing to do so. The 
commenter stated the SIP is therefore, deficient and unapprovable. The 
Commonwealth has also not complied with the requirement of EPA's rules 
that it provide an assessment of the number of years it would take to 
attain natural conditions of visibility improvement on the best days 
based on the reasonable progress goals selected by the Commonwealth. 
The commenter states that a uniform rate of progress to achieve a 9.8 
deciview reduction would require reductions of 0.163 deciview per year 
(dv/yr), or a total of 2.29 deciview over the 14 years of the first 
planning period.
    Response: EPA disagrees with the commenter. 40 CFR 51.308(d)(1) 
states that '' the reasonable progress goals must provide for an 
improvement in visibility for the most impaired days over the period of 
the implementation plan and to ensure that no degradation in visibility 
for the least impaired days over the same period''. The URP does not 
apply to the 20 percent best days, but only the 20 percent worst or 
most impaired days. The requirement is to demonstrate that the 20 
percent best days show no degradation in visibility which VADEQ has 
done on page 55 of their October 4, 2010 submittal. EPA believes that 
Virginia has met these requirements.
    Comment: The commenter questioned EPA's authority to grant 
``limited'' approvals and disapprovals. The commenter also states that 
the final limited approval and limited disapproval of the Virginia 
Regional Haze SIP cannot lawfully discharge or restart the clock on a 
FIP obligation because EPA is already under a nondiscretionary duty to 
promulgate a regional haze FIP by virtue of the EPA's findings of 
failure to submit for Virginia on January 15, 2009.
    Response: EPA disagrees with the commenter and finds that the 
limited approval, limited disapproval is appropriate for SIP 
strengthening and due to the status of CAIR. The final limited 
disapproval must be signed prior to EPA issuing a FIP to correct the 
reliance on CAIR in Virginia's Regional Haze SIP. The explanation in 
the proposed notice explained the effects of a limited disapproval and 
the timeframe for a FIP to be promulgated. It is understood that EPA 
does not have those additional 2 years because EPA is obligated to 
finalize the actions on the Virginia Regional Haze SIP pursuant to a 
judicial consent decree entered by the National Park Conservation 
Association (NPCA). Also, EPA has statutory authority for limited 
approvals and limited disapprovals pursuant to Section 110(k)(3) of the 
CAA.
    Comment: The commenter noted that Virginia has arbitrarily rejected 
Mid-Atlantic Northeast Visibility Union's (MANE-VU) requested measures 
as reasonable progress requirements to address Virginia's contribution 
to Brigantine National Wildlife Refuge, Great Gulf Wilderness Area, and 
Presidential Range--Dry River Wilderness Area. Virginia made assertions 
using VISTAS analysis showing that no stack contributes 1 percent or 
more to impairment at Brigantine, and that some of the units are 
temporarily shut down or predicted by the integrated planning model 
(IPM) model to be shut down by 2018. The commenter claimed these 
assertions are not federally enforceable and that EPA's rule requires 
Virginia to consult with the states whose class I areas it impacts ``in 
order to develop coordinated emission management strategies.'' 40 CFR 
51.308(d)(3)(i). The commenter believed that Virginia has not addressed 
its share of emission reductions required by 40 CFR 51.308(d)(3)(ii) in 
the SIP are needed to meet the progress goal for class I areas 
emissions impact and that the SIP should be disapproved. The commenter 
stated that Virginia did not comply with this requirement, nor did it 
provide the modeling required in 40 CFR 51.308(d)(3)(iii). The 
commenter stated that EPA's approved regional haze SIP for New Jersey 
found the MANE-VU measures are ``necessary to achieve the Reasonable 
Progress Goal'' for Brigantine and other class I areas. The commenter 
stated that New Jersey and MANE-VU states considered the five factor 
analysis required and Virginia did not question those reasonable 
progress goals, or provide a reasoned basis for not doing them. See 40 
CFR 51.308(d)(1)(i)(A).
    Response: EPA disagrees with the comments regarding reasonable 
progress goals and finds the commenter's comparisons not analogous to 
Virginia. There are only four factors required for the reasonable 
progress goals in 40 CFR 51.308(d)(1)(i)(A) and they are cost of 
compliance, the time necessary for compliance, the energy and non-air 
quality environmental impacts of compliance, and remaining useful life 
of any potentially affected sources. Virginia has supplied a technical 
analysis of the reductions in emissions towards meeting the MANE-VU 
measures by using the emission inventory, ambient monitoring data and 
modeling done by the regional planning organizations (RPO) VISTAS, 
which is found in VADEQ's appendices. EPA recommended that the states 
form RPOs for planning purposes of the regional haze SIPs, and both 
VISTAS and MANE-VU states did participate in coordination meetings for 
developing these SIPs. EPA has approved different approaches for 
establishing reasonable progress goals, and the states have the 
flexibility in doing so for their respective class I areas. 
Additionally, each RPO modeled using a separate set of assumptions to 
demonstrate the share of apportioned emission reductions. In using the 
VISTAS approach, as approved by EPA, Virginia has met its share of 
emission reductions for the class I areas it impacts. If the reasonable 
progress goals are not met or on track to be met for the 2018 targets, 
then the shortfall will be addressed in the midcourse review and a SIP 
revision to address any additional measures needed at that time to 
address the shortfall in emission reductions.

IV. Final Action

    EPA is finalizing its limited approval of the revisions to the 
Virginia SIP submitted on July 17, 2008, March 6, 2009, January 14, 
2010, October 4, 2010, November 19, 2010, and May 6, 2011, address 
regional haze for the first implementation period. EPA is issuing a 
limited approval of the Virginia SIP since overall the SIP will be 
stronger and more protective of the environment with the implementation 
of those measures by Virginia and with having Federal approval and 
enforceability than it would without those measures being included in 
the Virginia's SIP. The final limited disapproval and FIP will be in a 
separate rulemaking action done by EPA. EPA is also approving this 
revision as meeting the applicable visibility related requirements of 
section 110(a)(2) of the CAA including, but not limited to sections 
110(a)(2)(D)(i)(II) and 110(a)(2)(J) of the CAA, relating to visibility 
protection for the 1997 8-hour ozone NAAQS and the 1997 and 2006 
PM2.5 NAAQS.

[[Page 35290]]

V. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

B. Submission to Congress and the Comptroller General

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

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by August 13, 2012. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action.
    This action finalizing the limited approval of the Virginia 
Regional Haze SIP may not be challenged later in proceedings to enforce 
its requirements. (See section 307(b)(2) of the CAA.).

List of Subjects in 40 CFR Part 52

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

    Dated: May 30, 2012.
W.C. Early,
Acting Regional Administrator, Region III.

    Therefore, 40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

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

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


0
2. Amend Sec.  52.2420, in the table in paragraph (e) by adding an 
entry for ``Regional Haze Plan'' at the end of the table to read as 
follows:


Sec.  52.2420  Identification of plan.

* * * * *
    (e) * * *

----------------------------------------------------------------------------------------------------------------
   Name of non-regulatory SIP         Applicable        State submittal                           Additional
            revision                geographic area          date          EPA approval date      explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Regional Haze Plan..............  Statewide.........  7/17/08, 3/6/09, 1/ 6/13/2012 [Insert   Sec.   52.2452(d);
                                                       14/12, 10/4/10,     page number where   Limited Approval.
                                                       11/19/10, 5/6/11.   the document
                                                                           begins].
----------------------------------------------------------------------------------------------------------------


[[Page 35291]]


0
3. Amend Sec.  52.2452 by adding paragraph (d) to read as follows:


Sec.  52.2452  Visibility protection.

* * * * *
    (d) Limited approval of the Regional Haze Plan submitted by the 
Commonwealth of Virginia on July 17, 2008, March 6, 2009, January 14, 
2010, October 4, 2010, November 19, 2010, and May 6, 2011.

[FR Doc. 2012-14270 Filed 6-12-12; 8:45 am]
BILLING CODE 6560-50-P