[Federal Register Volume 77, Number 127 (Monday, July 2, 2012)]
[Rules and Regulations]
[Pages 39177-39180]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-16033]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2011-0329; FRL-9683-4]


Approval and Promulgation of Air Quality Implementation Plans; 
Ohio; Regional Haze

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing a limited approval of revisions to the Ohio 
State Implementation Plan (SIP), submitted on March 11, 2011, 
addressing regional haze for the first implementation period that ends 
2018. 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.

DATES: This final rule is effective on August 1, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2011-0329. All documents in the docket are listed on 
the www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, i.e., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically through www.regulations.gov or in hard copy at the 
Environmental Protection Agency, Region 5, Air and Radiation Division, 
77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is 
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
Federal holidays. We recommend that you telephone Charles Hatten, 
Environmental Engineer, at (312) 886-6031 before visiting the Region 5 
office.

FOR FURTHER INFORMATION CONTACT: Charles Hatten, Environmental 
Engineer, Control Strategies Section, Air Programs Branch (AR-18J), 
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, 
Chicago, Illinois 60604, (312) 886-6031, [email protected].

SUPPLEMENTARY INFORMATION: This supplementary information section is 
arranged as follows:

I. Synopsis of Proposed Rule
II. Public Comments and EPA's Responses
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews

I. Synopsis of Proposed Rule

    Ohio submitted a plan to address regional haze on March 11, 2011. 
This plan was intended to address the requirements in CAA section 169A, 
and interpreted in EPA's Regional Haze Rule as codified at 40 CFR 
51.308. This rule was promulgated on July 1, 1999 (64 FR 35713). 
Further significant provisions were promulgated on July 6, 2005, 
providing further guidance on provisions related to best available 
retrofit technology (BART).
    EPA proposed a limited approval of Ohio's submittal on January 25, 
2012 (77 FR 3712). The proposal notice described the nature of the 
regional haze problem and the statutory and regulatory background for 
EPA's review of Ohio's regional haze plan. The proposal provided a 
lengthy delineation of the requirements that Ohio intended to meet and 
that EPA proposed to approve, including requirements for mandating 
BART, consultation with other states in establishing goals representing 
reasonable further progress in mitigating anthropogenic visibility 
impairment, and adoption of limitations as necessary to implement a 
long term strategy (LTS) for reducing visibility impairment.
    Of particular interest were EPA's proposed findings regarding BART. 
Using modeling performed by the Lake Michigan Air Directors Consortium 
(LADCO), Ohio identified one non-electric generating unit (non-EGU) 
source, P.H. Glatfelter facility in Ross County, as having sufficient 
visibility impact to warrant being subject to a requirement 
representing BART.
    Ohio determined that BART was the use of flue gas desulfurization 
on the two BART-subject boilers. P.H. Glatfelter then requested limits 
that would allow an alternative strategy. In response to P.H. 
Glatfelter's request, Ohio adopted sulfur dioxide (SO2) 
limits governing the combined emissions from P.H. Glatfelter's boilers 
7 and 8, with limits requiring flue gas 
desulfurization more stringent than BART on individual boilers. In the 
notice of proposed rulemaking, EPA proposed to approve Ohio's 
alternative-to-BART limits for SO2, and continued operation 
of particulate matter (PM) and nitrogen oxide (NOX) controls 
for P.H. Glatfelter. These limits are enforceable at P.H. Glatfelter in 
a permit issued by Ohio. EPA proposed that Ohio's new, tighter emission 
limits for the Glatfelter facility in Ross County satisfies the BART 
requirements for non-EGUs.

II. Public Comments and EPA's Responses

    The publication of EPA's proposed rule on January 25, 2012 (77 FR 
3712) initiated a 30-day public comment period that ended on February 
24, 2012. During that public comment period we received comments from 
the United States Forest Service (FS), the United States National Park 
Service (NPS), the Ohio Utility Group, and Earth Justice (on behalf of 
conservation organizations representing the National Parks Conservation 
Association, Natural Resources Defense Council, and the Sierra Club) on 
the proposed rulemaking on the Ohio regional haze

[[Page 39178]]

plan. For convenience, comments from Earthjustice will be labeled 
hereafter as comments by the ``conservation organizations.'' These 
comments and EPA's responses are addressed in detail below.
    Comment #1: FS and NPS recommended additional review of the BART 
determination for P.H. Glatfelter. The commenters assert that the 
alternative BART determination for P.H. Glatfelter, boilers 7 
and 8, may not result in equivalent reduction in 
SO2 emissions compared to application of BART. NPS commented 
that the SO2 emission limit of 24,930 pounds per day (4,550 
tons per year), represents only a 77 percent reduction from 2002 
emission rates. NPS agrees with Ohio's determination that P.H. 
Glatfelter's alternative BART approach to include a process capable of 
90 percent SO2 removal was appropriate. However, NPS 
believes that because P.H. Glatfelter could also choose to operate its 
boilers at reduced capacity or shut down one boiler, and still meet the 
emission limit with no additional control of SO2, this does 
not meet the intent of the BART regulation. Thus, NPS recommends that 
in addition to the daily maximum SO2 emission rate, Ohio 
also set a 30-day rolling average SO2 limit that would be 
equivalent to a continuous 90 percent emissions reduction to reflect 
the performance capability of the control equipment. The conservation 
organizations raise similar concerns.
    Response #1: EPA believes that Ohio has used an adequate 
representation of emissions for the baseline period. EPA believes 
further that Ohio's alternative BART limit for SO2 is 
slightly more stringent than what BART would achieve. Therefore, EPA 
believes that Ohio's limit is sufficiently stringent to satisfy 
requirements for BART for this source. EPA believes that the 
alternative BART limit, expressed as a daily emission limit, mandates 
control that is slightly more stringent than BART. Consequently, EPA 
does not believe that the daily limit needs to be supplemented with a 
30-day limit.
    Comment #2: The Ohio Utility Group recommends that EPA should fully 
approve the State of Ohio's Regional Haze SIP revision submitted on 
March 11, 2011, for the following reasons: (1) The SIP revision is 
consistent with the regional haze rule, (2) the Clean Air Interstate 
Rule (CAIR) is in place, and (3) Ohio will continue to reduce emissions 
under CAIR. Additionally, EPA should approve Ohio's Regional Haze SIP 
as a result of the U.S. District Court's decision on December 30, 2011, 
to `stay' the Cross-State Air Pollution Rule (CSAPR). Since the court's 
decision states that EPA should continue administering CAIR pending 
resolution of the appeal, EPA should approve Ohio's regional haze SIP 
as submitted and rescind its partial disapproval, or let Ohio revise 
its SIP later when EPA finalizes action on other (rules) such as CSAPR.
    Conversely, the conservation organizations comment that EPA must 
disapprove Ohio's Haze SIP because the state plan improperly relies on 
CAIR instead of requiring BART limits for coal-fired power plants. 
Specifically, the conservation organizations comment, ``Because of the 
deficiencies identified in CAIR by the court and the impact of the 
Transport Rule on CAIR, it is inappropriate to fully approve states 
with LTS's that rely upon the emissions reductions predicted to result 
from CAIR to meet BART requirement for EGU's or to meet the reasonable 
progress goals (RPGs) in the states' regional haze SIPs.'' The 
conservation organizations comment that this shortcoming cannot be 
corrected through reliance on CSAPR.
    Response #2: On December 30, 2011, EPA proposed to find that the 
trading programs of CSAPR can substitute for source-specific BART for 
EGUs in the states covered by CSAPR requirements (including Ohio) (76 
FR 82219). The preamble to that action details EPA's position on the 
relationship between state SIPs that have relied on CAIR, CSAPR, and 
the CSAPR stay. EPA is responding to similar comments in the context of 
that rulemaking.
    Comment #3: The conservation organizations assert that Ohio's 
regional haze plan does not ensure that Ohio will do its part to reduce 
visibility impacts to Class I areas in other states. The conservation 
organizations find that Ohio's plan does not provide reasonable 
progress and note that Ohio's plan fails to satisfy the ``Mid-Atlantic/
Northeast Visibility Union (MANE-VU) Ask.\1\'' The conservation 
organizations list a number of controls sought by MANE-VU (``the MANE-
VU ask''), including 90 percent control of SO2 from each of 
167 stacks in 19 states, 28 percent control of non-EGU SO2 
emissions, and consideration of other measures. The conservation 
organizations acknowledge Ohio's response to these requests but find 
Ohio's response inadequate, for example finding that the power plant 
controls cited by Ohio do not necessarily reduce emissions by 90 
percent, and finding that the plant shutdowns cited by Ohio are not 
legally binding.
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    \1\ MANE-VU's document entitled ``Assessment of Reasonable 
Progress for Regional Haze in MANE-VU Class I Areas--Methodology for 
Source Selection, Evaluation of Control Options, and Four Factor 
Analysis, July 2007'' requests states outside of the MANE-VU area to 
examine controls for specific types of sources (i.e., ``MANE-VU 
Ask'').
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    Response #3: As noted in the proposed rulemaking for this action, 
specifically in section IV. C--Reasonable Progress Goals, Class I 
states must set RPGs that achieve reasonable progress toward achieving 
natural visibility conditions. However, Ohio does not have any Class I 
areas, so it does not need to set RPGs. In accordance with 40 CFR 
51.308(d)(i), Ohio did consult with affected Class I states through the 
Midwest Regional Planning Organization (MRPO) to ensure that it 
achieves its fair share of the overall emission reductions necessary to 
achieve the RPGs of Class I areas that it affects. Minutes from these 
calls can be found on MRPO's Web site at http://www.ladco.org/report/rpo/consultation/index.php. [See section 11 of Ohio's plan.] EPA 
believes that Ohio has conducted a suitable analysis of the measures 
that might be considered reasonable and has included an appropriate set 
of measures in its long term strategy for addressing reasonable 
progress requirements.
    Regarding MANE-VU's ``ask,'' the letters sent in 2007 from MANE-VU 
invited Ohio to participate in future consultation meetings where 
emissions from the state are reasonably anticipated to contribute to 
visibility impairment in Class I areas outside the state. The states' 
letters cite to the report entitled, Contributions to Regional Haze in 
the Northeast and Mid-Atlantic United States, NESCAUM, August 2006, 
http://www.nescaum.org/documents/contributions-to-regional-haze-in-the-
northeast-and-mid-atlantic--united-states/.
    A consultation summary was provided by MANE-VU on August 6, 2007. 
In October 2007, Ohio responded noting that a number of the stacks from 
the 14 sources located in Ohio and listed by the MANE-VU in the ``ask'' 
had already installed or were planning to install scrubbers, which Ohio 
EPA deemed to be sufficient progress towards MANE-VU`s request. Section 
10.2 of Ohio's plan discusses MANE-VU's request in greater detail and 
describes control measures implemented that provide for further 
reduction in emission from Ohio sources identified compared to the 2002 
emissions used by MANE-VU. Based on more recent modeling for MANE-VU 
(http://www.nescaum.org/topics/regional-haze/regional-haze-documents), 
for projecting visibility in 2018 (``2018 Visibility Projections,'' May

[[Page 39179]]

13, 2018), MANE-VU found the ``uniform rate is achieved and exceeded at 
all MANE-VU Class I sites.''
    EPA's primary criterion for judging the adequacy of Ohio's long-
term strategy for addressing reasonable progress requirements is based 
more on the collective set of measures rather than on individual 
mandates at individual facilities. Ohio's plan includes substantial 
reductions at a broader set of facilities than the 14 facilities noted 
by the commenters. The shutdown of facilities may be considered to be a 
compliance strategy for meeting the CSAPR requirement for emission 
reductions, and EPA finds these reductions may plausibly be considered 
an outcome of CAIR requirements notwithstanding the absence of a legal 
mandate for the plants not to operate. Irrespective of whether any 
individual plant achieves 90 percent reduction, and irrespective of 
whether plants listed by MANE-VU remain uncontrolled and other plants 
are controlled instead, EPA believes that the set of reductions in 
Ohio's plan suffice to provide its share of reductions toward 
satisfying reasonable progress goals.
    Comment #4: The conservation organizations objected to Ohio's 
exclusion of EGUs from being subject to source-specific BART 
requirements.
    Response #4: The commenters are referring to action taken in a 
separate rulemaking, proposed on December 30, 2011, at 76 FR 82219. 
[See description of action in Response 2] EPA directs the 
commenters to that action for EPA's determination regarding state SIPs 
that have relied on CAIR.
    Comment #5: The conservation organizations found minimal detail in 
the permit for the P.H. Glatfelter facility. In their opinion, ``EPA 
should reserve final approval of the permit * * * until the Agency has 
had the opportunity to review and provide feedback on the compliance 
plan submitted by the company.''
    Response #5: EPA is under a consent decree obligation to act on the 
permit for the P.H. Glatfelter facility by May 30, 2012. EPA believes 
that it has sufficient information to warrant approving the permit now. 
EPA believes that Ohio has made an appropriate determination of the 
control measures that represent BART at this facility. Ohio has 
established a limit on SO2 emissions from P.H. Glatfelter 
facility that allows the company flexibility in how it complies with 
the limit but still mandates slightly greater emission reduction than 
would be achieved with direct application of BART. EPA believes further 
that this permit satisfies the BART requirement without need for EPA 
review of the details of the approach by which P.H. Glatfelter meets 
this limit.
    Comment #6: The conservation organizations believe that Glatfelter 
``significantly overestimated the per ton cost of SO2 
controls by amortizing the capital cost of the controls over only 10 
years at a rate of 15 percent.''
    Response #6: EPA agrees that amortizing the capital cost of 
controls over 10 years and using a 15 percent interest rate yields a 
substantially overstated estimate of the annualized capital costs. 
However, the conservation organizations do not assert that correction 
of the cost estimate would change the appropriate BART determination 
for this facility. In fact, Ohio selected the most stringent control 
option as BART. The overstatement of costs did not result in 
elimination of any control options or selection of a less stringent 
control option. Therefore, EPA believes that Ohio has mandated an 
appropriate BART requirement for this facility notwithstanding the 
company's overestimate of the cost of control.
    Comment #7: The conservation organizations question the methodology 
upon which Ohio relied to exempt sources from BART and request that EPA 
review this methodology.
    Response #7: EPA reexamined Ohio's methodology, as requested, and 
reaffirms its conclusion that Ohio's analysis reflects an acceptable 
methodology that does not wrongly exclude any sources that should have 
been subject to BART.
    Comment #8: The conservation organizations assert that the proposed 
actions are illegal and invalid, as the CAA does not provide EPA with 
authority to issue ``limited approvals'' or ``limited disapprovals.'' 
The conservation organizations contend that section 110(k) of CAA only 
allows EPA to fully approve, partially approve and partially 
disapprove, conditionally approve, or fully disapprove a SIP.
    Response #8: EPA disagrees with the conservation organizations 
assertions. Although section 110(k) of the CAA may not expressly 
provide authority for limited approvals, the plain language of section 
301(a) does provide ``gap-filling'' authority authorizing the Agency to 
``prescribe such regulations as are necessary to carry out'' EPA's CAA 
functions. EPA may rely on section 301(a) in conjunction with the 
Agency's SIP approval authority in section 110(k)(3) to issue limited 
approvals where it has determined that a submittal strengthens a given 
state SIP and that the provisions meeting the applicable requirements 
of CAA are not separable from the provisions that do not meet CAA's 
requirements. EPA's limited approval of Ohio's SIP revision addressing 
regional haze is appropriate because it addresses regional haze rule 
requirements and approvable provisions are not separable from the 
provisions that do not meet CAA's requirements.
    As explained in the September 7, 1992, EPA Memorandum from John 
Calcagni, ``through a limited approval, EPA [will] concurrently, or 
within a reasonable period of time thereafter, disapprove the rule * * 
* for not meeting all of the applicable requirements of the Act. * * * 
[T]he limited disapproval is a rulemaking action, and it is subject to 
notice and comment.'' In a separate action, published December 30, 2011 
(76 FR 82219), EPA did in fact propose a limited disapproval of the 
Ohio regional haze SIP for the SIPs reliance on CAIR.

III. What action is EPA taking?

    EPA is finalizing a limited approval of Ohio's regional haze plan. 
EPA is approving Ohio's plan for BART for non-EGUs, mostly notably 
approving limits satisfying BART requirements for P.H. Glatfelter. EPA 
also concludes that Ohio's submission provides an approvable analysis 
of the emission reductions needed to satisfy reasonable progress and 
other regional haze planning requirements, and Ohio's submission meets 
other regional haze planning requirements such as identification of 
affected Class I areas and provision of a monitoring plan. Therefore, 
EPA is finalizing limited approval of Ohio's regional haze plan as 
strengthening the SIP and helping address regional haze for the first 
implementation period by helping remedy any existing anthropogenic and 
prevent future impairment of visibility at Class I areas.

IV. Statutory and Executive Order Reviews

    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

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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.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by August 31, 2012. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

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

    Dated: May 29, 2012.
Susan Hedman,
Regional Administrator, Region 5.

    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.

Subpart KK--Ohio

0
2. Section 52.1870 is amended by adding paragraph (c)(155) to read as 
follows:


Sec.  52.1870  Identification of plan.

* * * * *
    (c) * * *
    (155) On March 11, 2011, the Ohio Environmental Protection Agency 
submitted Ohio's regional haze plan addressing the first implementation 
period of the regional haze rule requirements. This plan includes a 
long-term strategy with emission limits for mandating emission 
reductions equivalent to the reductions from implement best available 
retrofit technology and with emission reductions to provide Ohio's 
contribution toward achievement of reasonable progress goals at Class I 
areas affected by Ohio. The plan specifically satisfies BART 
requirements for non-EGUs, most notably by providing new, tighter 
emission limits for the P.H. Glatfelter facility in Ross County, Ohio. 
The plan establishes a combined daily sulfur dioxide emission limit of 
24,930 pounds per day for boiler 7 and 8. The plan 
also includes permit number P0103673 that will impose these emission 
limitations on P.H. Glatfelter Company.
    (i) Incorporation by reference.
    (A) Permit-to-Install Number P0103673, issued to P.H. Glatfelter 
Company--Chillicothe Facility by the Ohio Environmental Protection 
Agency, signed by Scott J. Nally and effective on March 7, 2011.

[FR Doc. 2012-16033 Filed 6-29-12; 8:45 am]
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