[Federal Register Volume 77, Number 228 (Tuesday, November 27, 2012)]
[Rules and Regulations]
[Pages 70693-70707]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-28591]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2009-0050; FRL-9755-6]


Approval and Promulgation of State Implementation Plans; State of 
New Mexico; Regional Haze Rule Requirements for Mandatory Class I Areas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving New Mexico State Implementation Plan (SIP) 
revisions submitted on July 5, 2011, and December 1, 2003, by the 
Governor of New Mexico addressing the regional haze requirements for 
the 16 Class I areas covered by the Grand Canyon Visibility Transport 
Commission Report and a separate submittal for other Federal mandatory 
Class I areas. We are taking final approval action on all components of 
the State's submittals except for the submitted nitrogen oxides 
(NOX) Best Available Retrofit Technology (BART) 
determination for the San Juan Generating Station (SJGS). We are also 
approving several SIP submissions offered as companion rules to the 
regional haze plan, including submitted regulations for the Western 
Backstop Sulfur Dioxide Trading Program, for the inventorying of 
emissions, for smoke management, and open burning. These SIP revisions 
were submitted to address the requirements of the Clean Air Act (CAA or 
Act) which require states to prevent any future and remedy any existing 
man-made impairment of visibility in mandatory Class I areas caused by 
emissions of air pollutants from numerous sources located over a wide 
geographic area (also referred to as the ``regional haze program''). 
States are required to assure reasonable progress toward the national 
goal of achieving natural visibility conditions in Class I areas. EPA 
is taking this action pursuant to section 110 of the CAA.

DATES: This final rule is effective December 27, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R06-OAR-2009-0050. All documents in the docket are listed on 
the www.regulations.gov Web site.
    Publicly available docket materials are available either 
electronically through www.regulations.gov, or in hard copy at the Air 
Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross 
Avenue, Suite 700, Dallas, Texas 75202-2733 The file will be made 
available by appointment for public inspection in the Region 6 FOIA 
Review Room between the hours of 8:30 a.m. and 4:30 p.m. weekdays 
except for legal holidays. Contact the person listed in the FOR FURTHER 
INFORMATION CONTACT paragraph below or Mr. Bill Deese at 214-665-7253 
to make an appointment. If possible, please make the appointment at 
least two working days in advance of your visit. There will be a 15 
cent per page fee for making photocopies of documents. On the day of 
the visit, please check in at our Region 6 reception area at 1445 Ross 
Avenue, Suite 700, Dallas, Texas.

FOR FURTHER INFORMATION CONTACT: Michael Feldman, Air Planning Section 
(6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, 
Suite 700, Dallas, Texas 75202-2733, telephone 214-665-9793; fax number 
214-665-7263; email address [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 words EPA, we, us or our mean or refer to the United States 
Environmental Protection Agency.
    iii. The initials SIP mean or refer to State Implementation Plan.
    iv. The initials FIP mean or refer to Federal Implementation Plan.
    v. The initials RH and RHR mean or refer to Regional Haze and 
Regional Haze Rule.
    vi. The initials NMED mean the New Mexico Environmental Department.
    vii. The initials NM mean or refer to New Mexico.
    viii. The initials BART mean or refer to Best Available Retrofit 
Technology.

[[Page 70694]]

    ix. The initials EGUs mean or refer to Electric Generating Units.
    x. The initials NOX mean or refer to nitrogen oxides.
    xi. The initials SO2 mean or refer to sulfur dioxide.
    xii. The initials PM10 mean or refer to particulate matter with an 
aerodynamic diameter of less than 10 micrometers.
    xiii. The initials PM2.5 mean or refer to particulate matter with 
an aerodynamic of less than 2.5 micrometers.
    xiv. The initials RPGs mean or refer to reasonable progress goals.
    xv. The initials LTS mean or refer to long term strategy.
    xvi. The initials RPOs mean or refer to regional planning 
organizations.
    xvii. The initials WRAP mean or refer to the Western Regional Air 
Partnership.
    xviii. The initials GCVTC mean or refer to the Grand Canyon 
Visibility Transport Commission.
    xix. The initials PNM mean or refer to the Public Service Company 
of New Mexico.
    xx. The initials SJGS mean or refer to the San Juan Generating 
Station.
    xxi. The initials WESP mean or refer to Wet Electrostatic 
Precipitators.
    xxii. The initials PJFF mean or refer to Pulse Jet Fabric Filters.

Table of Contents

I. Background
II. Final Action
III. Basis for Final Action
IV. Issues Raised by Commenters and EPA's Responses
V. Statutory and Executive Orders

I. Background

    The CAA requires each state to develop plans, referred to as SIPs, 
to meet various air quality requirements. A state must submit its SIPs 
and SIP revisions to us for approval. Once approved, a SIP is 
enforceable by EPA and citizens under the CAA, also known as being 
federally enforceable. This action involves the requirement that states 
have SIPs that address regional haze.

A. Regional Haze

    In 1990, Congress added section 169B to the CAA to address regional 
haze issues, and we promulgated regulations addressing regional haze in 
1999. 64 FR 35714 (July 1, 1999), codified at 40 CFR part 51, subpart 
P. The requirements for regional haze, found at 40 CFR 51.308 and 
51.309, are included in our visibility protection regulations at 40 CFR 
51.300-309. States are required to assure reasonable progress toward 
the national goal of achieving natural visibility conditions in Class I 
areas. The requirement to submit a regional haze SIP applies to all 50 
states, the District of Columbia and the Virgin Islands. States were 
required to submit a SIP addressing regional haze visibility impairment 
no later than December 17, 2007. 40 CFR 51.308(b).
    New Mexico submitted its regional haze (RH) SIP to EPA on July 5, 
2011, and it adds to earlier RH SIP planning components that were 
submitted by the state on December 1, 2003.\1\
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    \1\ Portions of the 2003 NM 309 RH SIP submittal were 
resubmitted without revision on January 13, 2009. (New Mexico State 
Regional Haze SIP Clarification Letter submitted to EPA January 13, 
2009)
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B. Lawsuits

    In a lawsuit in the U.S. District Court for the District of 
Columbia, environmental groups sued us for our failure to timely take 
action with respect to the regional haze requirements of the CAA and 
our regulations. In particular, the lawsuits alleged that we had failed 
to promulgate federal implementation plans (FIPs) for these 
requirements within the two-year period allowed by CAA section 110(c) 
or, in the alternative, fully approve SIPs addressing these 
requirements.
    As a result of these lawsuits, we entered into a consent decree. 
The consent decree requires that we sign a notice of final rulemaking 
addressing the remaining regional haze requirements for New Mexico by 
November 15, 2012. We are meeting that requirement with the signing of 
this notice of final rulemaking.

C. Our Proposal

    We signed our notice of proposed rulemaking on May 31, 2012, and it 
was published in the Federal Register on June 15, 2012 (77 FR 36044). 
In that notice, we provided a detailed description of the various 
regional haze requirements. We are not repeating that description here; 
instead, the reader should refer to our notice of proposed rulemaking 
for further detail. In our proposal, we proposed to approve New Mexico 
SIP revisions submitted on July 5, 2011, and December 1, 2003, that 
address the regional haze requirements for the mandatory Class I areas 
under 40 CFR 51.309. We proposed to find that all reviewed components 
of the SIP meet the requirements of 40 CFR 51.309. We note that we did 
not propose action on the submitted NOX BART determination 
for the San Juan Generating Station. The NOX BART 
requirement for the source is presently satisfied by the BART 
determination that has been promulgated under the federal 
implementation plan at 40 CFR 52.1628.

D. Public Participation

    We requested comments on all aspects of our proposed action and 
provided a thirty-day comment period, with the comment period closing 
on July 16, 2012. We received comments on our proposed rule that 
supported our proposed action and that were critical of our proposed 
action. In this action, we are responding to the comments we have 
received, taking final rulemaking action, and explaining the bases for 
our action.

II. Final Action

    In this action, EPA is approving New Mexico SIP revisions submitted 
on July 5, 2011, and December 1, 2003, that address the regional haze 
requirements for the mandatory Class I areas under 40 CFR 51.309. We 
find that all reviewed components of the SIP meet the requirements of 
40 CFR 51.309. We note that we have yet to propose action on the 
submitted NOX BART determination for the San Juan Generating 
Station; it remains a submitted pending SIP revision at this time. The 
NOX BART requirement for the source is presently satisfied 
by the BART determination that is effective under the federal 
implementation plan at 40 CFR 52.1628.
    We note that EPA issued a temporary stay of the effectiveness of 
the NM FIP Rule for 90 days on July 16, 2012 (77 FR 41697) and this 
temporary stay was extended an additional 45 days to November 29, 2012 
(October 24, 2012, 77 FR 64908). The temporary stays were issued to 
allow for additional time to discuss new and potentially different 
methods for complying with the NOX BART requirements for the 
SJGS and to receive additional information from the state of New Mexico 
required for EPA to consider the state's different method and for 
further discussion among the stakeholders. If this approach leads to an 
additional regulatory proposal, it will be the subject of a separate, 
future rule making. Because today's action does not include any action 
on the State's NOX BART determination for the SJGS, this 
final action is not affected by the ongoing discussions to consider 
replacing the NM FIP Rule.

III. Basis for Our Final Action

    We have fully considered all significant comments on our proposal 
and have concluded that no changes from our proposal are warranted. Our 
action is based on an evaluation of New Mexico's regional haze SIP 
submittals against the regional haze rule (RHR) requirements at 40 CFR 
51.300-51.309

[[Page 70695]]

and CAA sections 169A and 169B. A detailed explanation of how the NM 
SIP submittals meet these requirements is contained in the proposal 
(June 15, 2012, 77 FR 36044). All general SIP requirements contained in 
CAA section 110, other provisions of the CAA, and our regulations 
applicable to this action were also evaluated. The purpose of this 
action is to ensure compliance with these requirements. Our authority 
for action on New Mexico's SIP submittals is based on CAA section 
110(k).
    We are approving the State's regional haze SIP provisions outlined 
in our proposal because they meet the relevant regional haze 
requirements. Most of the adverse comments we received concerning our 
proposed approval of the regional haze SIP pertained to our proposed 
approval of the SO2 backstop trading program.

IV. Issues Raised by Commenters and EPA's Responses

A. Comments and Responses Common to Participating States Regarding 
Proposed Approval of the SO2 Backstop Trading Program 
Components of the RH SIPs

    EPA has proposed to approve the SO2 backstop trading 
program components of the RH SIPs for all participating States and has 
done so through four separate proposals: For the Bernalillo County 
proposal see 77 FR 24768 (April 25, 2012); for the Utah proposal see 77 
FR 28825 (May 15, 2012); for the Wyoming proposal see 77 FR 30953 (May 
24, 2012); finally, for the New Mexico proposal see 77 FR 36043 (June 
15, 2012). National conservation organizations paired with 
organizations local to each state have together submitted very similar, 
if not identical, comments on various aspects of EPA's proposed 
approval of these common program components. These comment letters may 
be found in the docket for each proposal and are dated as follows: May 
25, 2012 for Bernalillo County; July 16, 2012 for Utah; July 23, 2012 
for Wyoming; and July 16, 2012 for New Mexico. Each of the comment 
letters has attached a consultant's report dated May 25, 2012, and 
titled: ``Evaluation of Whether the SO2 Backstop Trading 
Program Proposed by the States of New Mexico, Utah and Wyoming and 
Albuquerque-Bernalillo County Will Result in Lower SO2 
Emissions than Source-Specific BART.'' In this section, we address and 
respond to those comments we identified as being consistently submitted 
and specifically directed to the component of the published proposals 
dealing with the submitted SO2 backstop trading program. For 
our organizational purposes, any additional or unique comments found in 
the conservation organization letter that is applicable to this 
proposal (i.e., for the state of New Mexico) will be addressed in the 
next section where we also address all other comments received.
    Comment: The language of the Clean Air Act appears to require BART. 
The commenter acknowledges that prior case law affirms EPA's regulatory 
basis for having ``better than BART'' alternative measures, but 
nevertheless asserts that it violates Congress' mandate for an 
alternative trading program to rely on emissions reductions from non-
BART sources and excuse EGUs from compliance with BART.
    Response: The Clean Air Act requires BART ``as may be necessary to 
make reasonable progress toward meeting the national goal'' of 
remedying existing impairment and preventing future impairment at 
mandatory Class I areas. See CAA Section 169A(b)(2) (emphasis added). 
In 1999, EPA issued regulations allowing for alternatives to BART based 
on a reading of the CAA that focused on the overarching goal of the 
statute of achieving progress. EPA's regulations provided states with 
the option of implementing an emissions trading program or other 
alternative measure in lieu of BART so long as the alternative would 
result in greater reasonable progress than BART. We note that this 
interpretation of CAA Section 169A(B)(2) was determined to be 
reasonable by the DC Circuit in Center for Energy and Economic 
Development v. EPA, 398 F.3d 653, 659-660 (DC Cir. 2005) in a challenge 
to the backstop market trading program under Section 309, and again 
found to reasonable by the DC Circuit in Utility Air Regulatory Group 
v. EPA, 471 F.3d 1333, 1340 (DC Cir. 2006) (``* * *[W]e have already 
held in CEED that EPA may leave states free to implement BART-
alternatives so long as those alternatives also ensure reasonable 
progress.''). Our regulations for alternatives to BART, including the 
provisions for a backstop trading program under Section 309, are 
therefore consistent with the Clean Air Act and not in issue in this 
action approving a SIP submitted under those regulations. We have 
reviewed the submitted 309 trading program SIPs to determine whether 
each has the required backstop trading program (see 40 CFR 
51.309(d)(4)(v)), and whether the features of the program satisfy the 
requirements for trading programs as alternatives to BART (see 40 CFR 
51.308(e)(2)). Our regulations make clear that any market trading 
program as an alternative to BART contemplates market participation 
from a broader list of sources than merely those sources that are 
subject to BART. See 40 CFR 51.308(e)(2)(i)(B).
    Comment: The submitted 309 Trading Program is defective because 
only 3 of 9 Transport States remain in the program. The Grand Canyon 
Visibility Transport Commission Report clearly stated that the program 
must be ``comprehensive.'' The program fails to include the other 
Western States that account for the majority of sulfate contribution in 
the Class I areas of participating States, and therefore Class I areas 
on the Colorado Plateau will see little or no visibility benefit. Non-
participation by other Transport Region States compounds the program's 
deficiencies.
    Response: We disagree that the 309 trading program is defective 
because only 3 States remain in the program. EPA's regulations do not 
require a minimum number of Transport Region States to participate in 
the 309 trading program, and there is no reason to believe that the 
limited participation by the 9 Transport States will limit the 
effectiveness of the program in the 3 States that have submitted 309 
SIPs. The commenter's argument is not supported by the regional haze 
regulations and is demonstrably inconsistent with the resource 
commitments of the Transport Region States that have worked for many 
years in the WRAP to develop and submit SIPs to satisfy 40 CFR 51.309. 
At the outset, our regulations affirm that ``certain States* * *may 
choose'' to comply with the 40 CFR 51.309 requirements and conversely 
that ``[a]ny Transport Region State [may] elect not to submit an 
implementation plan'' to meet the optional requirements. 40 CFR 
51.309(a); see also 40 CFR 51.309(f). We have also previously observed 
how the WRAP, in the course of developing its technical analyses as the 
framework for a trading program, ``understood that some States and 
Tribes may choose not to participate in the optional program provided 
by 40 CFR 51.309.'' 68 FR 33,769 (June 5, 2003). Only five of nine 
Transport Region States initially opted to participate in the backstop 
trading program in 2003, and of those initial participants only Oregon 
and Arizona later elected not to submit 309 SIPs.
    We disagree with the commenter's assertion that Class I areas on 
the Colorado Plateau will see little or no visibility benefit. Non-
participating States must account for sulfate contributions to 
visibility impairment at Class I areas by addressing all requirements 
that apply under 40 CFR 51.308. To the extent Wyoming, New Mexico and 
Utah sources ``do not

[[Page 70696]]

account for the majority of sulfate contribution'' at the 16 class I 
areas on Colorado Plateau, there is no legal requirement that they 
account for SO2 emissions originating from sources outside 
these participating States. Aside from this, the modeling results 
detailed in the proposed rulemaking show projected visibility 
improvement for the 20 percent worst days in 2018 and no degradation in 
visibility conditions on the 20 percent best days at all 16 of the 
mandatory Class I areas under the submitted 309 plan.
    Finally, we do not agree with the commenter's characterization of 
the Grand Canyon Visibility Transport Commission Report, which used the 
term ``comprehensive'' only in stating the following:
    ``It is the intent of [the recommendation for an incentive-based 
trading program] that [it] include as many source categories and 
species of pollutants as is feasible and technically defensible. This 
preference for a `comprehensive' market is based upon the expectation 
that a comprehensive program would be more effective at improving 
visibility and would yield more cost-effective emission reduction 
strategies for the region as a whole.'' \2\
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    \2\ The Grand Canyon Visibility Transport Commission, 
Recommendations for Improving Western Vistas at 32 (June 10, 1996).
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    It is apparent that the Grand Canyon Visibility Transport 
Commission recommended comprehensive source coverage to optimize the 
market trading program. This does not necessitate or even necessarily 
correlate with geographic comprehensiveness as contemplated by the 
comment. We note that the submitted backstop trading program does in 
fact comprehensively include ``many source categories,'' as may also be 
expected for any intrastate trading program that any state could choose 
to develop and submit under 40 CFR 51.308(e)(2). As was stated in our 
proposal, section 51.309 does not require the participation of a 
certain number of States to validate its effectiveness.
    Comment: The submitted 309 trading program is defective because the 
pollutant reductions from participating States have little visibility 
benefit in each other's Class I areas. The States that have submitted 
309 SIPs are ``largely non-contiguous'' in terms of their physical 
borders and their air shed impacts. Sulfate emissions from each of the 
participating States have little effect on Class I areas in other 
participating States.
    Response: We disagree. The 309 program was designed to address 
visibility impairment for the sixteen Class I areas on the Colorado 
Plateau. New Mexico, Wyoming and Utah are identified as Transport 
Region States because the Grand Canyon Visibility Transport Commission 
had determined they could impact the Colorado Plateau class I areas. 
The submitted trading program has been designed by these Transport 
Region States to satisfy their requirements under 40 CFR 51.309 to 
address visibility impairment at the sixteen Class I areas. The 
strategies in these plans are directed toward a designated clean-air 
corridor that is defined by the placement of the 16 Class I areas, not 
the placement of state borders. ``Air sheds'' that do not relate to 
haze at these Class I areas or that relate to other Class I areas are 
similarly not relevant to whether the requirements for an approvable 
309 trading program are met. As applicable, any Transport Region State 
implementing the provisions of Section 309 must also separately 
demonstrate reasonable progress for any additional mandatory Class I 
Federal areas other than the 16 Class I areas located within the state. 
See 40 CFR 51.309(g). More broadly, the State must submit a long-term 
strategy to address these additional Class I areas as well as those 
Class I areas located outside the state which may be affected by 
emissions from the State. 40 CFR 51.309(g) and 51.308(d)(2). In 
developing long-term strategies, the Transport Region States may take 
full credit for visibility improvements that would be achieved through 
implementation of the strategies required by 51.309(d). A state's 
satisfaction of the requirements of 51.309(d), and specifically the 
requirement for a backstop trading program, is evaluated independently 
from whether a state has satisfied the requirements of 51.309(g). In 
neither case, however, does the approvability inquiry center on the 
location or contiguousness of state borders.
    Comment: The emission benchmark used in the submitted 309 trading 
program is inaccurate. The ``better-than-BART'' demonstration needs to 
analyze BART for each source subject to BART in order to evaluate the 
alternative program. The submitted 309 trading program has no BART 
analysis. The ``better-than-BART'' demonstration does not comply with 
the regional haze regulations when it relies on the presumptive 
SO2 emission rate of 0.15 lb/MMBtu for most coal-fired EGUs. 
The presumptive SO2 limits are inappropriate because EPA has 
elsewhere asserted that ``presumptive limits represented control 
capabilities at the time the BART Rule was promulgated, and that [EPA] 
expected that scrubber technology would continue to improve and control 
costs would continue to decline.'' 77 FR 14614 (March 12, 2012).
    Response: We disagree that the submitted 309 trading program 
requires an analysis that determines BART for each source subject to 
BART. Source specific BART determinations are not required to support 
the better-than-BART demonstration when the ``alternative measure has 
been designed to meet a requirement other than BART.'' See 40 CFR 
51.308(e)(2)(i)(C). The requirements of Section 309 are meant to 
implement the recommendations of the Grand Canyon Visibility Transport 
Commission and are regulatory requirements ``other than BART'' that are 
part of a long-term strategy to achieve reasonable progress. As such, 
in its analysis, the State may assume emission reductions ``for similar 
types of sources within a source category based on both source-specific 
and category-wide information, as appropriate.'' See id. The 309 States 
used this approach in developing their emission benchmark, and we view 
it to be consistent with what we have previously stated regarding the 
establishment of a BART benchmark. Specifically, we have explained that 
States designing alternative programs to meet requirements other than 
BART ``may use simplifying assumptions in establishing a BART benchmark 
based on an analysis of what BART is likely to be for similar types of 
sources within a source category.'' 71 FR 60619 (Oct. 13, 2006).
    We also previously stated that ``we believe that the presumptions 
for EGUs in the BART guidelines should be used for comparisons to a 
trading program or other alternative measure, unless the State 
determines that such presumptions are not appropriate.'' Id. Our 
reasoning for this has also long been clear. While EPA recognizes that 
a case-by-case BART analysis may result in emission limits more 
stringent than the presumptive limits, the presumptive limits are 
reasonable and appropriate for use in assessing regional emissions 
reductions for the better than BART demonstration. See 71 FR 60619 
(``the presumptions represent a reasonable estimate of a stringent case 
BART because they would be applied across the board to a wide variety 
of units with varying impacts on visibility, at power plants of varying 
size and distance from Class I areas''). EPA's expectation that 
scrubber technology would continue to improve and that control costs 
would continue to decline is a basis for not

[[Page 70697]]

regarding presumptive limits as a default or safe harbor BART 
determination when the BART Guidelines otherwise call for a complete, 
case-by-case analysis. We believe it was reasonable for the developers 
of the submitted trading program to use the presumptive limits for EGUs 
in establishing the emission benchmark, particularly since the 
methodology used to establish the emission benchmark was established 
near in time to our promulgation of the presumptive limits as well as 
our guidance that they should be used. We do not think the assumptions 
used at the time the trading program was developed, including the use 
of presumptive limits, were unreasonable. Moreover, the commenter has 
not demonstrated how the use of presumptive limits as a simplifying 
assumption at that time, or even now, would be flawed merely because 
EPA expects that scrubber technology and costs will continue to 
improve.
    Comment: The presumptive SO2 emission rate overstates 
actual emissions from sources that were included in the BART benchmark 
calculation. In addition, States in the Grand Canyon Visibility 
Transport Region have established or proposed significantly more 
stringent BART limits for SO2. Using actual SO2 
emission data for EGUs, SO2 emissions would be 130,601 tpy, 
not the benchmark of 141,859 tpy submitted in the 309 trading program. 
Using a combination of actual emissions and unit-specific BART 
determinations, the SO2 emissions would be lower still at 
123,529 tpy. Finally, the same data EPA relied on to support its 
determination that reductions under the Cross State Air Pollution Rule 
are ``better-than-BART'' would translate to SO2 emissions of 
124,740 tpy. These analyses show the BART benchmark is higher than 
actual SO2 emissions reductions achievable through BART. It 
follows that the submitted 309 trading program is flawed because it 
cannot be deemed to achieve ``greater reasonable progress'' than BART.
    Response: The BART benchmark calculation does not overstate 
emissions because it was not intended to assess actual emissions at 
BART subject sources nor was it intended to assess the control 
capabilities of later installed controls. Instead, the presumptive 
SO2 emission rate served as a necessary simplifying 
assumption. When the States worked to develop the 309 trading program, 
they could not be expected to anticipate the future elements of case-
by-case BART determinations made by other States (or EPA, in the case 
of a BART determination through any federal implementation plan), nor 
could they be expected to anticipate the details of later-installed 
SO2 controls or the future application of enforceable 
emission limits to those controls. The emissions projections by the 
WRAP incorporated the best available information at the time from the 
states, and utilized the appropriate methods and models to provide a 
prediction of emissions from all source categories in this planning 
period. In developing a profile of planning period emissions to support 
each state's reasonable progress goals, as well as the submitted 
trading program, it was recognized that the final control decisions by 
all of the states were not yet complete, including decisions as they 
may pertain to emissions from BART eligible sources. Therefore, we 
believe it is appropriate that the analysis and demonstration is based 
on data that was available to the States at the time they worked to 
construct the SO2 trading program. The States did make 
appropriate adjustments based on information that was available to them 
at the time. Notably, the WRAP appropriately adjusted its use of the 
presumptive limits in the case of Huntington Units 1 and 2 in Utah, 
because those units were already subject to federally enforceable 
SO2 emission rates that were lower than the presumptive 
rate. The use of actual emissions data after the 2006 baseline is not 
relevant to the demonstration that has been submitted.
    Comment: SO2 emissions under the 309 trading program 
would be equivalent to the SO2 emissions if presumptive BART 
were applied to each BART-subject source. Because the reductions are 
equivalent, the submitted 309 trading program does not show, by ``the 
clear weight of the evidence,'' that the alternative measure will 
result in greater reasonable progress than would be achieved by 
requiring BART. In view of the reductions being equivalent, it is not 
proper for EPA to rely on ``non-quantitative factors'' in finding that 
the SO2 emissions trading program achieves greater 
reasonable progress.
    Response: We recognize that the 2018 SO2 milestone 
equals the BART benchmark and that the benchmark generally utilized the 
presumptive limits for EGUs, as was deemed appropriate by the States 
who worked together to develop the trading program. If the 
SO2 milestone is exceeded, the trading program will be 
activated. We note, moreover, that the 2018 milestone constitutes an 
emissions cap on sulfur dioxide emissions that will persist after 
2018.\3\ Under this framework, sources that would otherwise be subject 
to the trading program have incentives to make independent reductions 
to avoid activation of the trading program. We cannot discount that the 
2003 309 SIP submittal may have already influenced sources to upgrade 
their plants before any case-by-case BART determination under Section 
308 may have required it. In addition, the trading program was designed 
to encourage early reductions by providing extra allocations for 
sources that made reductions prior to the program trigger year. 
Permitting authorities that would otherwise permit increases in 
SO2 emissions for new sources would be equally conscious of 
the potential impacts on the achievement of the milestone. We note that 
the most recent emission report for the year 2010 shows a 35% reduction 
in emissions from 2003. The 309 trading program is designed as a 
backstop such that sources would work to accomplish emission reductions 
through 2018 that would be superior to the milestone and the BART 
benchmark. If instead the backstop trading program is triggered, the 
sources subject to the program would be expected to make any reductions 
necessary to achieve the emission levels consistent with each source's 
allocation. We do not believe that the ``clear weight of the evidence'' 
determination referenced in 40 CFR 51.308(e)(2)(E)--in short, a 
determination that the alternative measure of the 309 trading program 
achieves greater reasonable progress than BART--should be understood to 
prohibit setting the SO2 milestone to equal the BART 
benchmark. Our determination that the 2018 SO2 milestone and 
other design features of the 309 SIP will achieve greater reasonable 
progress than would be achieved through BART is based on our 
understanding of how the SIP will promote and sustain emission 
reductions of SO2 as measured against a milestone. Sources 
will be actively mindful of the participating states' emissions 
inventory and operating to avoid exceeding the milestone, not trying to 
maximize their emissions to be equivalent to the milestone, as this 
comment suggests.
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    \3\ The trading program can only be replaced via future SIP 
revisions submitted for EPA approval that will meet the BART and 
reasonable progress requirements of 51.308. See 40 CFR 
51.309(d)(4)(vi)(A).
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    Comment: In proposing to find that the SO2 trading 
program achieves greater reasonable progress than BART, EPA's reliance 
on the following features of the 309 trading program is flawed:

[[Page 70698]]

Non-BART emission reductions, a cap on new growth, and a mass-based cap 
on emissions. The reliance on non-BART emission reductions is ``a 
hollow promise'' because there is no evidence that the trading program 
will be triggered for other particular emission sources, and if the 
program is never triggered there will be no emission reductions from 
smaller non-BART sources. The reliance on a cap on future source 
emissions is also faulty because there is no evidence the trading 
program will be triggered, and thus the cap may never be implemented. 
Existing programs that apply to new sources will already ensure that 
S02 emissions from new sources are reduced to the maximum extent. EPA's 
discussion of the advantages of a mass-based cap is unsupported and 
cannot be justified. EPA wrongly states that a mass-based cap based on 
actual emissions is more stringent than BART. There should not be a 
meaningful gap between actual and allowable emissions under a proper 
BART determination. A mass-based cap does not effectively limit 
emissions when operating at lower loads and, as an annual cap, does not 
have restrictive compliance averaging. EPA's argument implies that BART 
limits do not apply during startup, shutdown or malfunction events, 
which is not correct. The established mass-based cap would allow 
sources to operate their SO2 controls less efficiently, 
because some BART-subject EGUs already operate with lower emissions 
than the presumptive SO2 emission rate of 0.15 lb/MMBtu and 
because some EGUs were assumed to be operating at 85% capacity when 
their capacity factor (and consequently their S02 emissions 
in tpy) was lower.
    Response: We disagree that it is flawed to assess the benefits 
found in the distinguishing features of the trading program. The 
backstop trading program is not specifically designed so that it will 
be activated. Instead sources that are covered by the program are on 
notice that it will be triggered if the regulatory milestones are not 
achieved. Therefore, the backstop trading program would be expected to 
garner reductions to avoid its activation. It also remains true that if 
the trading program is activated, all sources subject to the program, 
including smaller non-BART sources would be expected to secure emission 
reductions as may be necessary to meet their emission allocation under 
the program
    We also disagree that the features of the 2018 milestone as a cap 
on future source emissions and as a mass-based cap has no significance. 
As detailed in our proposal, the submitted SIP is consistent with the 
requirement that the 2018 milestone does indeed continue as an emission 
cap for SO2 unless the milestones are replaced by a 
different program approved by EPA as meeting the BART and reasonable 
progress requirements under 51.308. Future visibility impairment is 
prevented by capping emissions growth from those sources not eligible 
under the BART requirements, BART sources, and from entirely new 
sources in the region. The benefits of a milestone are therefore 
functionally distinct from the control efficiency improvements that 
could be gained at a limited number of BART subject sources. While 
BART-subject sources may not be operating at 85% capacity today, we 
believe the WRAP's use of the capacity assumption in consideration of 
projected future energy demands in 2018 was reasonable for purposes of 
the submitted demonstration. While BART requires BART subject sources 
to operate SO2 controls efficiently, this does not mean that 
an alternative to BART thereby allows, encourage, or causes sources to 
operate their controls less efficiently. On the contrary, we find that 
the SIP, consistent with the well-considered 309 program requirements, 
functions to the contrary. Sources will be operating their controls in 
consideration of the milestone and they also remain subject to any 
other existing or future requirements for operation of SO2 
controls.
    We also disagree with the commenter's contention that existing 
programs are equivalent in effect to the emissions cap. EPA's new 
source review programs are designed to permit, not cap, source growth, 
so long as the national ambient air quality standards and other 
applicable requirements can be achieved. Moreover, we have not argued 
that BART does not apply at all times or that emission reductions under 
the cap are meant to function as emission limitations are made to meet 
the definition of BART (40 CFR 51.301). The better-than-BART 
demonstration is not, as the comment would have it, based on issues of 
compliance averaging or how a BART limit operates in practice at an 
individual facility. Instead, it is based on whether the submitted SIP 
follows the regulatory requirements for the demonstration and evidences 
comparatively superior visibility improvements for the Class I areas it 
is designed to address.
    Comment: The submitted 309 SIP will not achieve greater reasonable 
progress than would the requirement for BART on individual sources. The 
BART program ``if adequately implemented'' will promote greater 
reasonable progress, and EPA should require BART on all eligible air 
pollution sources in the state. EPA's proposed approval of the 309 
trading program is ``particularly problematic'' where the BART sources 
cause or contribute to impairment at Class I areas which are not on the 
Uniform Rate of Progress glide-path towards achieving natural 
conditions. EPA should require revisions to provide for greater 
SO2 reductions in the 309 program, or it should require BART 
reductions on all sources subject to BART for SO2.
    Response: We disagree with the issues discussed in this comment. As 
discussed in other comments, we have found that the state's SIP 
submitted under the 309 program will achieve greater reasonable 
progress than source-by-source BART. As the regulations housed within 
section 51.309 make clear, States have an opportunity to submit 
regional haze SIPs that provide an alternative to source-by-source BART 
requirements. Therefore, the commenter's assertion that we should 
require BART on all eligible air pollution sources in the state is 
fundamentally misplaced. The commenter's use of the Uniform Rate of 
Progress (URP) as a test that should apparently be applied to the 
adequacy of the 309 trading program as a BART alternative is also 
misplaced, as there is no requirement in the regional haze rule to do 
so.
    Comment: The 309 trading program must be disapproved because it 
does not provide for ``steady and continuing emissions reductions 
through 2018'' as required by 40 CFR 51.309(d)(4)(ii). The program 
establishes its reductions through milestones that are set at three 
year intervals. It would be arbitrary and capricious to conclude these 
reductions are ``steady'' or ``continuous.''
    Response: We disagree and find that the reductions required at each 
milestone demonstrate steady and continuing emissions reductions. The 
milestones do this by requiring regular decreases. These decreases 
occur in intervals ranging from one to three years and include 
administrative evaluation periods with the possibility of downward 
adjustments of the milestone, if warranted. The interval under which 
``steady and continuing emissions reductions through 2018'' must occur 
is not defined in the regional haze rule. We find the milestone 
schedule and the remainder of the trading program submitted by New 
Mexico does in fact reasonably provide for ``steady and continuing 
emissions reductions through 2018.''
    Comment: The WRAP attempts to justify the SO2 trading 
program because

[[Page 70699]]

SO2 emissions have decreased in the three Transport Region 
states relying on the alternative program by 33% between 1990-2000. The 
justification fails because the reductions were made prior to the 
regional haze rule. The reliance on reductions that predate the 
regional haze rule violates the requirement of 40 CFR 51.308(e)(2)(iv) 
that BART alternatives provide emission reductions that are ``surplus'' 
to those resulting from programs implemented to meet other Clean Air 
Act Requirements.
    Response: We did not focus on the WRAP's discussion of early 
emission reductions in our proposal. However, we do not agree with this 
comment. The WRAP's statements regarding past air quality improvements 
are not contrary to the requirement that reductions under a trading 
program be surplus. Instead, the WRAP was noting that forward-planning 
sources had already pursued emission reductions that could be partially 
credited to the design of the 309 SIP. We note that the most recent 
emission report for the year 2010 shows a 35% reduction in emissions 
from 2003. Sources that make early reductions prior to the program 
trigger year may acquire extra allocations should the program be 
triggered. This is an additional characteristic feature of the backstop 
trading program that suggests benefits that would be realized even 
without triggering of the program itself. The surplus emission 
reduction requirement for the trading program is not in issue, because 
the existence of surplus reductions is studied against other reductions 
that are realized ``as of baseline date of the SIP.'' The 1990-2000 
period plainly falls earlier than the baseline date of the SIP, so we 
disagree that the WRAP's discussion of that period was problematic or 
violative of 40 CFR 51.308(e)(2)(iv), regarding surplus reductions.
    Comment: EPA must correct discrepancies between the data presented 
in the 309 SIP submittals.\4\ There are discrepancies in what has been 
presented as the results of WRAP photochemical modeling. The New Mexico 
RH SIP proposal by EPA shows, for example, that the 20% worst days at 
Grand Canyon National Park have visibility impairment of 11.1 
deciviews, while the other EPA proposals show 11.3 deciviews. The 
discrepancy appears to be due to the submittals being based on 
different modeling scenarios developed by the WRAP. EPA must explain 
and correct the discrepancies and ``re-notice'' a new proposed rule 
containing the correct information.
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    \4\ This particular comment was not submitted in response to the 
proposal to approve Albuquerque's 309 trading program, the earliest 
published proposal. It was consistently submitted in the comment 
periods for the proposals to approve the 309 trading programs for 
NM, WY and UT, which were later in time.
---------------------------------------------------------------------------

    Response: We agree that there are discrepancies in the numbers in 
Table 1 of the proposal notices. The third column of the table below 
shows the modeling results presented in Table 1 of the Albuquerque, 
Wyoming and Utah proposals. The modeling results in the New Mexico 
proposal Table 1 are shown in the fourth column. The discrepancies come 
from the State's using different preliminary reasonable progress cases 
developed by the WRAP. The Wyoming, Utah and Albuquerque proposed 
notices incorrectly identify the Preliminary Reasonable Progress case 
as the PRP18b emission inventory instead of correctly identifying the 
presented data as modeled visibility based on the ``prp18a'' emission 
inventory. The PRP18a emission inventory is a predicted 2018 emission 
inventory with all known and expected controls as of March 2007. The 
preliminary reasonable progress case (``PRP18b'') used by New Mexico is 
the more updated version produced by the WRAP with all known and 
expected controls as of March 2009. Thus, we are correcting Table 1, 
column 5 in the Wyoming, Utah and Albuquerque of our proposed notices 
to include model results from the PRP18b emission inventory, consistent 
with the New Mexico proposed notice and the fourth column in the table 
below. We are also correcting the description of the Preliminary 
Reasonable Progress Case (referred to as the PRP18b emission inventory 
and modeled projections) to reflect that this emission inventory 
includes all controls ``on the books'' as of March 2009.

------------------------------------------------------------------------
                                               2018            2018
                                            Preliminary     Preliminary
                                            Reasonable      Reasonable
         Class I Area            State       Progress        Progress
                                            PRP18a Case     PRP18b case
                                            (deciview)      (deciview)
------------------------------------------------------------------------
Grand Canyon National Park...  AZ                   11.3            11.1
Mount Baldy Wilderness.......  AZ                   11.4            11.5
Petrified Forest National      AZ                   12.9            12.8
 Park.
Sycamore Canyon Wilderness...  AZ                   15.1            15.0
Black Canyon of the Gunnison   CO                    9.9             9.8
 National Park Wilderness.
Flat Tops Wilderness.........  CO                    9.0             9.0
Maroon Bells Wilderness......  CO                    9.0             9.0
Mesa Verde National Park.....  CO                   12.6            12.5
Weminuche Wilderness.........  CO                    9.9             9.8
West Elk Wilderness..........  CO                    9.0             9.0
San Pedro Parks Wilderness...  NM                    9.8             9.8
Arches National Park.........  UT                   10.9            10.7
Bryce Canyon National Park...  UT                   11.2            11.1
Canyonlands National Park....  UT                   10.9            10.7
Capitol Reef National Park...  UT                   10.5            10.4
Zion National Park...........  UT                   13.0            12.8
------------------------------------------------------------------------

    Section 309 requires Transport Region States to include a 
projection of the improvement in visibility expected through the year 
2018 for the most impaired and least impaired days for each of the 16 
Class I areas on the Colorado Plateau. 40 CFR 51.309(d)(2). As 
explained in the preamble to the 1999 regional haze regulations, EPA 
included this requirement to ensure that the public would be informed 
on the relationship between chosen emissions

[[Page 70700]]

control measures and their effect on visibility. 64 FR at 35751. Given 
the purpose of this requirement, we do not consider the discrepancies 
noted above to be significant and are not re-noticing our proposed 
rulemaking as the discrepancies do not change our proposed conclusion 
that SIP submitted by New Mexico contains reasonable projections of the 
visibility improvements expected at the 16 Class I areas at issue. The 
PRP18a modeling results show projected visibility improvement for the 
20 percent worst days from the baseline period to 2018. The PRP18b 
modeling results show either the same or additional visibility 
improvement on the 20 percent worst days beyond the PRP18a modeling 
results. We also note there are two discrepancies in New Mexico's Table 
1, column four compared to the other participating States' notices. The 
2018 base case visibility projection in the New Mexico proposed notice 
for Black Canyon of the Gunnison National Park Wilderness and Weminuche 
Wilderness should be corrected to read 10.1 deciview rather than 10.0. 
Notwithstanding the discrepancies described above, we believe that the 
NM SIP adequately projects the improvement in visibility for purposes 
of Section 309.

B. Comments on PM BART

    Comment: EPA failed to identify the cost-effectiveness criteria it 
used to determine that wet electrostatic precipitators (WESPs) were not 
cost effective at San Juan Generating Station (SJGS). Public Service of 
New Mexico's (PNM's) own analysis shows a visibility improvement of 
0.62 deciview at Mesa Verde National Park as a result of installation 
of WESPs on all four units at SJGS at a cost of $145,000-$173,000 per 
ton of PM removed. EPA remarked that PNM likely overestimated the cost 
of WESPs, yet failed to present the correct cost calculation in its 
proposed rule or reject installation of WESP as BART using proper cost 
numbers. The commenter states that EPA lacks the evidence to make this 
conclusion and that EPA must properly calculate the cost of WESPs at 
SJGS, identify the range of costs deemed cost-effective for other PM 
BART determinations, and identify objective criteria to be used for 
determining PM cost-effectiveness for PM controls under BART.
    Response: EPA is approving the state's determination that BART for 
PM is no additional controls, and is not purporting to make or conduct 
an independent BART analysis. We hold to our original observation that 
the cost estimations presented for WESPs were likely overstated, but we 
cannot conclude these costs were radically overstated such that New 
Mexico, having more refined cost estimates, would have reached a 
different conclusion. We note that no commenters questioned New 
Mexico's PM BART determination or its underlying technical analysis 
during the state's public comment period. In reviewing the submitted 
BART determination, we do not agree that EPA is presently responsible 
for generating its own cost analysis or stating a range of cost-
effectiveness for PM BART controls at SJGS. No commenters responding to 
our proposal have provided a basis to conclude that the addition of 
WESPs would achieve their objective of improving visibility in Class I 
areas in an economical way. The estimated average cost effectiveness of 
WESP that has been quoted by PNM is more than an order of magnitude 
larger (i.e., >cost/ton*10) than what other BART determining 
authorities have found to be cost effective in other case-by-case 
determinations. We have no record basis for assuming that the errors in 
the developed cost estimations are flawed to such a great degree. Nor 
do we have a reason to find that New Mexico's record support was 
inadequate such that it arrived at an unreasonable determination. In 
other words, the cost estimations for WESP were not so flawed as to 
throw into question the conclusion that the incremental visibility 
benefit anticipated from additional controls could not justify the high 
cost to achieve a more stringent emission limit.
    The addition of WESP would result in an exorbitant incremental cost 
effectiveness value because the existing pulse jet fabric filters 
(PJFF) are removing much of the PM. The addition of WESP is estimated 
to only reduce PM emissions by an additional 69 tons per year (tpy) 
each at units 1 and 2, and approximately 100 tpy each at units 3 and 4. 
Therefore, the addition would result in a high anticipated cost on a $/
ton removed basis for WESP at SJGS, even if we corrected the cost 
estimate to be consistent with EPA guidance; we believe the cost of 
installation and operation of WESP would not be cost effective. We are 
therefore approving the submitted PM BART determination.
    Comment: EPA failed to propose a PM BART emission limit that is 
achievable with the operation of baghouses such as those currently 
installed at SJGS. Much lower PM emission rates are achievable even 
with SJGS's existing technology. The commenter notes that the EPA is 
proposing a BART PM limit of 0.012 lb/MMBtu at the nearby Four Corners 
Power Plant (FCPP) and a 10% opacity limit at each unit at FCPP to 
control PM emissions. Moreover, there have been several recent permits 
issued with best available control technology (``BACT'') limits at 
0.010 lb/MMBtu based on operation of a fabric filter baghouse. The 
commenter asserts even lower levels are achievable based on source test 
data at some facilities. An EPA Region 9 employee concluded back in 
2002 that BACT for filterable PM at two existing pulverized coal 
boilers firing Powder River Basin coal and equipped with a baghouse was 
0.006 lb/MMBtu based on a 3-hour average and monitored via EPA Method 5 
and continuously using triboelectric broken bag detectors; there is no 
reason that the SJGS units could not achieve similar PM emission rates 
as new units.
    The filtration media determines the control efficiency of a 
baghouse for very small particles. There is a wide range of media that 
can be used, most of which are much more efficient for larger particles 
than smaller particles. Thus, PNM and EPA should have assumed lower 
filterable PM emissions than 0.015 lb/MMBtu for a baghouse in their 
evaluation of PM controls. Had they done so, the cost of control on a 
dollar per ton of pollution removed basis would be lower.
    Response: The commenter is incorrect in summarizing the proposed PM 
emission limit for the Four Corners Power Plant. The proposed rule 
sought comment on an emission limit of 0.015 lb/MMBtu on units 4 and 5 
achievable with the existing baghouses consistent with our proposal for 
the SJGS and also includes a proposed 10% opacity limit. The proposed 
rule also proposed to require an upgrade in PM controls to meet an 
emission limit of 0.012 lb/MMBtu and 10% opacity on Units 1-3, which is 
achievable either through installing baghouses or ESPs for these units. 
The proposal noted that because of the high incremental cost of both of 
these options, however, EPA was also asking for comment on whether the 
facility can satisfy BART by operating the existing venturi scrubbers 
to meet an emissions limit of 0.03 lb/MMBtu with a 20% opacity limit to 
demonstrate continuous compliance. The final rule (77 FR 51620) 
published on August 24, 2012 (after the publication of our proposed 
notice) requires Units 4 and 5 at FCPP to meet an emission limit of 
0.015 lb/MMBtu, and retains the existing 20 percent opacity limit. 
These PM limits are achievable through the proper operation of the 
existing baghouses. EPA has determined that it is not necessary or 
appropriate at this

[[Page 70701]]

time to set new PM limits for Units 1-3 at the FCPP.
    As stated in a BART analysis \5\ developed by PNM and incorporated 
for technical support by New Mexico in the submitted PM BART 
determination, ``While the control effectiveness of the PJFF is usually 
defined by vendors at the outlet ductwork of the PJFF, the BART 
determination is based on the control effectiveness for particulate 
matter at the stack outlet. Therefore, the particulate matter emission 
rate has to take into account both the removal efficiency of the PJFF 
and the impacts of the wet FGD operation, where there is a potential 
for additional re-entrainment of scrubber solids into the flue gas, 
which increases the stack outlet particulate matter emission 
concentration.'' Therefore, direct comparison to performance of 
baghouses at other facilities or BACT analyses for new facilities is 
not necessarily appropriate. The PM emission limit at the SJGS 
represents the vendor guarantee for the performance of the fabric 
filters recently installed in response to the 2005 consent decree to 
address PM and for enhanced mercury control and includes the additional 
contribution of PM emissions from operation of the wet FGD downstream 
of the PJFF.
---------------------------------------------------------------------------

    \5\ Public Service Company of New Mexico, San Juan Generating 
Station Final particulate matter BART analysis, PNM (August 28, 
2008).
---------------------------------------------------------------------------

    Comment: EPA's proposed PM BART emission limit for SJGS is improper 
because it appears to only apply to filterable PM. The commenter 
asserts that EPA's BART guidelines specify that BART should be 
evaluated and defined for both PM10 and PM2.5. 
Since EPA has found that the SJGS is subject to BART for particulate 
matter, EPA must evaluate and define BART limits for both 
PM10 and PM2.5.
    Response: We disagree that we must promulgate any limits or 
disapprove the PM BART determination because the State did not make a 
BART determination for PM2.5. The BART Guidelines do not 
specify that States must establish a BART limit for both 
PM10 and PM2.5. The BART Guidelines provide the 
following:
    ``You must look at SO2, NOX, and direct 
particulate matter (PM) emissions in determining whether sources cause 
or contribute to visibility impairment, including both PM10 
and PM2.5.'' [Appendix Y to Part 51, section III.A.2.]
    This language in the BART Guidelines was intended to clarify to 
States that when determining whether a source is subject to BART, the 
modeling evaluation to determine the source's impact on visibility has 
to account for both PM10 and PM2.5 emissions. 
There are several instances in which we state in both the preamble to 
the RHR, and in the BART Guidelines that PM10 may be used as 
indicator for PM2.5 in determining whether a source is 
subject to BART. Neither the RHR nor the BART Guidelines specify that 
States must make separate BART determinations for PM10 and 
PM2.5. Therefore, we disagree that we must evaluate separate 
limits or disapprove the PM BART determination for SJGS on the basis 
that a BART determination for PM2.5 was not made.
    Furthermore, we expect that H2SO4 will be a 
main component of condensable PM emissions from the facility and 
anticipate that emissions of H2SO4 will be low 
given the type of coal used and the existing control equipment. We have 
imposed a limit on H2SO4 in the FIP of 2.6 x 
10-4 lb/MMBtu (76 FR 52388) to limit the increase in 
emissions of H2SO4 expected from operating SCR at 
the SJGS units.

C. Comments on Reasonable Progress

    Comment: EPA proposes no additional emission reductions from New 
Mexico's stationary sources to make further progress toward achieving 
natural visibility conditions. EPA's determination that this approach 
is ``reasonable,'' 77 FR 36073, is counter to the very purpose of the 
Regional Haze program. An implementation plan must identify and analyze 
the measures aimed at achieving the uniform rate of progress (URP) and 
determine whether these measures are reasonable. If a state establishes 
an RPG that does not meet the URP, the state must demonstrate, on the 
basis of the four factors, that (1) meeting the URP isn't reasonable; 
and (2) the RPG adopted by the state is reasonable. The reasonableness 
of measures that are necessary to achieve the uniform rate of progress 
is evaluated based on four factors: (1) The costs of compliance; (2) 
the time necessary for compliance; (3) the energy and non-air quality 
environmental impacts of compliance; and (4) the remaining useful life 
of any potentially affected sources.
    While EPA has established a target of 2064 for achieving natural 
visibility conditions, under its proposed approval of the New Mexico 
SIP, natural visibility conditions will not be restored in Class I 
areas affected by New Mexico sources until much later, in some cases 
hundreds of years beyond 2064. EPA failed to impose any emission 
reductions from New Mexico's largest anthropogenic sources of haze-
causing pollutants beyond BART. The commenter supports EPA's 
NOX BART determination at the San Juan Generating Station, 
but states that greater emissions reductions are necessary across all 
New Mexico sources of haze-causing pollution to achieve reasonable 
progress. The commenter states EPA's approach in the NM RH SIP proposal 
guarantees that Congress' goal of achieving natural visibility 
conditions at Class I areas will never be reached. EPA must require 
additional reductions of visibility-impairing pollutants from New 
Mexico's largest air pollution sources to meet reasonable progress 
requirements.
    Response: EPA's Reasonable Progress Guidance states that the URP is 
not a presumptive target for the RPG.\6\ The state followed the proper 
approach in setting its RPGs through 2018. New Mexico considered the 
four factors established in section 169A of the CAA and in EPA's RHR at 
40 CFR 51.308(d)(1)(i)(A). The factors are considered when selecting 
the RPGs for the best and worst days for each Class I area. New Mexico 
considered the costs of compliance, the time needed for compliance, the 
energy and non-air quality environmental impacts, and the remaining 
useful life of the facility for a wide variety of source categories. 
New Mexico also investigated additional control options on three 
refineries. The NMED reasonably concluded that the cost of additional 
controls was not warranted and concluded that the RPGs are reasonable 
given projected emissions reductions from anthropogenic sources and the 
fact that natural and out-of-state sources contribute significantly to 
haze. Because the State has limited ability to control naturally 
occurring wildfires and windblown dust, these sources of visibility 
impairment will continue to impact visibility at New Mexico's Class I 
areas and limit the visibility improvement achievable during the 
planning period.
---------------------------------------------------------------------------

    \6\ Guidance for Setting Reasonable Progress Goals under the 
Regional Haze Program, June 1, 2007, memorandum from William L. 
Wehrum, Acting Assistant Administrator for Air and Radiation, to EPA 
Regional Administrators, EPA Regions 1-10 (pp. 4-2, 5-1).
---------------------------------------------------------------------------

    The visibility improvement at issue here is the rate of visibility 
improvement for the first implementation period, which extends until 
July 31, 2018. New control programs in the future that reduce emissions 
may be implemented, which would hasten visibility improvement and 
possibly yield an earlier year to achieve natural conditions. 
Similarly, emission reductions in place or anticipated to be in place 
before 2018 that were not included in the projected

[[Page 70702]]

2018 emission inventory will result in improved visibility improvement 
over the State's RPGs. As explained in the proposal, the implementation 
of NOX BART at SJGS and FCPP, as well as corrections to 
over-projections of NOX and SO2 emissions in 
Bernalillo County would further lower 2018 emissions projections for 
both NOX and SO2, and result in more visibility 
improvement than predicted by the WRAP modeling which was the basis for 
setting the RPGs. In addition, in this action we are approving New 
Mexico's participation in the SO2 emissions milestone and 
backstop trading program that applies to all stationary sources which 
emit greater than 100 tpy of SO2 and will result in emission 
reductions of SO2 between 2002 and 2018.
    New Mexico will include any additional control measures it finds 
reasonable along with any additional measures implemented by 
contributing states in the next implementation period. For the first 
implementation period, EPA finds adequate New Mexico's assessment of 
reasonable progress goals and reasonable measures for its long term 
strategy.
    Comment: New Mexico and EPA failed to analyze or require any air 
pollution controls under the reasonable progress program. Instead, 
EPA's proposal relies on the WRAP's general, non-source specific 
analysis of potential reasonable progress source categories. See, 
Docket EPA-R06-2009-0050-0014, Appendix E. The WRAP's general source 
category analysis fails to identify any specific New Mexico sources 
that may be subject to reasonable progress controls. Id. The WRAP's 
general source analysis is also factually incorrect. Table 6-1 of the 
WRAP's analysis indicates that there are no PM, SO2, or 
NOX emissions from coal fired boilers in New Mexico. Id. at 
p. 340. To the contrary, coal fired boilers at SJGS, Escalante coal 
plant, Raton coal plant, and Four Corners all emit significant 
quantities of these criteria pollutants. Thus, reliance on the WRAP 
general source report for approval of the New Mexico SIP is arbitrary 
and capricious due to its factual inaccuracy.
    In addition, a supplemental reasonable progress analysis was also 
performed for the NM RH SIP. See, Docket EPA-R06-2009-0050-0014, 
Appendix F. This analysis was a New Mexico source specific analysis. 
However, this source specific analysis only analyzed reasonable 
progress controls at three refineries in New Mexico. Id. Thus, the 
commenter asserts that New Mexico has failed to analyze the need for or 
require source-specific reasonable progress controls at New Mexico's 
EGU's or other facilities identified in the WRAP general report, such 
as cement plants, as is mandated under the regional haze rule. The 
commenter claims EPA's proposal fails to correct this deficiency. As 
such, EPA's proposal fails to comply with the federal regional haze 
rules and EPA's proposed approval of the SIP is arbitrary and 
capricious. Therefore, EPA must evaluate options for limiting 
NOX, PM, and SO2 emissions at all New Mexico EGUs 
and other large stationary sources.
    Response: We disagree with the commenter's assessment of the WRAP's 
analysis. As the commenter acknowledges, the WRAP analysis 
(Supplementary Information for Four Factor Analyses by WRAP States, 
Appendix E of the NM RH 309(g) SIP submittal) is a general, non-source 
specific analysis of potential controls to be considered in a 
reasonable progress analysis. As such, the usefulness of the report 
lies not in any identification of specific sources within each state, 
but in the identification of available emission control technologies 
and analysis of the four factors for the candidate control measures 
identified for priority pollutants for each emission source category. 
The report provides information on control efficiency, cost 
effectiveness, time needed for implementation, energy and other 
impacts, and information on considerations for the impact of remaining 
useful life on control costs. This source category information was 
adopted as technical support by New Mexico in their reasonable progress 
analysis. We disagree with the commenter's claim that Table 6-1 is 
factually inaccurate because it does not include emissions from New 
Mexico EGUs. Table 6-1 identifies emissions from industrial boilers 
meeting the definition described in Subpart Db of 40 CFR Part 60, which 
does not include the EGU sources identified in the comment.
    The supplemental WRAP analysis (Supplementary Information for Four-
Factor Analyses for Selected Individual Facilities in New Mexico, 
Appendix F of the NM RH 309(g) SIP) analyzed reasonable progress 
controls at three refineries in New Mexico at the request of NMED. NMED 
identified these three facilities for further site-specific evaluation 
due to emissions and proximity to Class I areas. For other source 
types, such as cement kilns, NMED relied on the WRAP general four-
factor analysis discussed above to inform their evaluation. New Mexico 
also relied on other additional sources of information as available. 
For example, in response to comments NMED received on the four factor 
analysis, NMED identifies that New Mexico through a separate process 
(the Four Corners Air Quality Task Force) analyzed oil and gas sources 
and the power plants in the four corners region. NMED did not identify 
any additional reductions in their evaluation of the WRAP analyses and 
other available sources of information.\7\
---------------------------------------------------------------------------

    \7\ We note that NOX emissions from the only subject-
to-BART source in New Mexico (evaluated for controls under the BART 
requirements) are greater than the next 20 largest NOX 
sources in the State combined based on evaluation of 2008 National 
Emission Inventory data.
---------------------------------------------------------------------------

    New Mexico will include any additional control measures it finds 
reasonable along with any additional measures implemented by 
contributing states in the next implementation period. For the first 
implementation period, EPA finds New Mexico's assessment of reasonable 
measures for its long term strategy to be adequate with a sufficient 
basis for approval.
    Comment: The NM RH SIP also fails to comply with 40 CFR 51.309(g), 
which requires that SIPs address impacts to Class I areas not located 
on the Colorado plateau. 40 CFR 51.309(g). States are required to 
submit air quality modeling or other reliable evidence revealing 
visibility impacts and establishing that reasonable progress goals will 
be met. In December 2010 and February 2011, EPA informed Bernalillo 
County that its SIP failed to comply with 40 CFR 51.309(g)(1) and (2) 
because it did not submit evidence showing Bernalillo County's effects 
on visibility in Class I areas in New Mexico, such as Gila Wilderness 
and Carlsbad Cavern. EPA Docket EPA-R06-OAR-2008-0702-0011 at pages 
110-111 and 126-127. EPA determined that SO2 emissions in 
New Mexico were projected to increase from 4,966 tpy in 2002 to 14,073 
tpy by 2018 with nearly 30% of the 2018 emissions coming from 
Bernalillo County. Id. EPA also determined that a significant increase 
in NOX emissions from Bernalillo County was projected to 
occur over this same time period. Id. EPA asked Bernalillo County to 
conduct visibility modeling to determine its impacts to Class I areas 
and to explain how reasonable progress goals would be met in light of 
significant emissions increases. Id.
    The commenters state that they were unable to identify any 
visibility modeling or other analysis conducted by Bernalillo County to 
address EPA's concerns. The undersigned request an opportunity to 
review any visibility modeling or related analysis and that EPA reject 
the NM RH SIP until these issues with the Bernalillo County

[[Page 70703]]

component of the SIP are fully addressed.
    Response: The Albuquerque/Bernalillo County Air Quality Control 
Board (AQCB) is the federally delegated air quality authority for the 
City of Albuquerque and Bernalillo County, New Mexico (BC). The AQCB 
has submitted a Section 309 regional haze SIP for its geographic area 
of New Mexico and EPA has proposed approval of this SIP submittal (77 
FR 24768). While the regional haze requirements for BC are addressed in 
their separate SIP submittal and our separate evaluation and proposed 
action, we recognize that the BC SIP submittal is a necessary component 
of the regional haze plan for the entire State of New Mexico and is 
also necessary to ensure the requirements of section 110(a)(2)(D) of 
the CAA are satisfied for the entire State of New Mexico. As such, we 
find it is appropriate to respond to the commenter's claims that the NM 
RH SIP fails to comply with 40 CFR 51.309(g) because of a deficiency in 
the BC RH SIP.
    The letters referred to by the commenter state that the analysis 
with regard to the requirements of 40 CFR 51.309(g)(1) and (2) in BC's 
draft SIP revision shared with EPA in 2010 may be incomplete. 
Specifically, the qualitative analysis provided in ``Appendix 2007-H'' 
and ``Addendum to Appendix 2007-H'' addressed the impact of BC's 
emissions on nearby Class I areas but did not include information on 
the inaccuracy and over-prediction in the 2018 WRAP emission 
projections for NOX and SO2 emissions in BC, or 
the effect of an accurate emission inventory with respect to modeled 
visibility degradation at Gila Wilderness and Carlsbad Caverns.
    With respect to the above mentioned modeled degradation at Gila 
Wilderness, an error in data retrieval affected initial results for 
modeled visibility conditions at Gila Wilderness in 2002 and indicated 
that visibility would degrade from 2002 to 2018. This error was 
corrected and the updated submitted data indicates a predicted 
improvement in visibility conditions on the 20% worst days and no 
degradation of visibility on the 20% best days.\8\ For Carlsbad 
Caverns, NMED provided modeling data that demonstrates that significant 
projected growth in emissions by 2018 from Mexico are responsible for 
the degradation in visibility conditions on the 20% best days at this 
Class I area (Section 11.3.3 of the NM RH 309(g) SIP submittal). WRAP 
visibility modeling results with Mexico emissions held constant from 
2002 to 2018 show a slight improvement in visibility conditions at 
Carlsbad Caverns on the 20% best days. Therefore, the initial modeled 
visibility degradation at both Gila Wilderness and Carlsbad Caverns was 
addressed without a need to further evaluate the impact of over-
estimated NOX and SO2 emissions in BC.
---------------------------------------------------------------------------

    \8\ Correction of WRAP region Plan02d CMAQ visibility modeling 
results on TSS for Regional Haze Planning--Final Memorandum, June 
30, 2011, available at: http://vista.cira.colostate.edu/tss/help/plan02d_rev.pdf.
---------------------------------------------------------------------------

    Furthermore, BC provided additional information in Appendix 2010 B 
of the BC RH SIP \9\ that included an evaluation of emission inventory 
trends for 2002, 2005, and 2008 for NOX and SO2 
emissions for Bernalillo County. The analysis in the BC RH SIP 
submittal identifies some inaccuracies in the emission inventories used 
by the WRAP to model the 2002 baseline and the 2018 future case. The 
2002 and 2018 emission projections are higher than expected when 
compared to the reduction in SO2 emissions observed in the 
actual emissions inventories for 2002, 2005 and 2008. Table 5 of our 
proposed approval of the BC RH SIP (77 FR 24790) shows a comparison of 
emission data from Bernalillo County and a trend of decreasing 
emissions compared to emissions included in the WRAP estimates and 
photochemical modeling, projecting a large increase of both 
NOX and SO2. Based on the information provided in 
BC RH SIP submittal, we agree with the determination that visibility 
impacts at the nearby Class I areas due to area and mobile emission 
sources in Bernalillo County are overestimated in the WRAP 2002 and 
2018 visibility modeling. The emission trends for 2002 through 2008 (BC 
RH SIP submittal Appendix 2010-B) indicate that emissions of 
NOX and SO2 within Bernalillo County are 
declining and therefore visibility impairment due to these emissions 
are also anticipated to decrease from their current low levels 
presented in Appendix 2007-H and in the addendum to Appendix 2007-H of 
the BC RH SIP. A separately signed action has found that BC adequately 
evaluated the Class I areas that may be impacted by sources of air 
pollution within Bernalillo County and BC adequately determined and 
demonstrated that, at this time, it is improbable that sources located 
within the county cause or contribute to visibility impairment in a 
Class I area located outside of the county. The separately signed 
action has therefore found that the BC RH SIP submittal complies with 
40 CFR 51.309(g)(1) and (2).
---------------------------------------------------------------------------

    \9\ AQD exhibit5 EPA Docket EPA-R06-OAR-2008-0702-0013 
beginning at page 227.
---------------------------------------------------------------------------

D. Comment on Programs Related to Fire

    Comment: NMED noted the following inaccuracies in Section H, 
Programs Related to Fire, of the Proposed Rule, which should be 
corrected in the final rule: Section H.1.b, Evaluation of Smoke 
Dispersion, incorrectly states that SMP I burns may only be conducted 
when the ventilation index category is rated ``Good'' or better, and 
that the burner must conduct visual monitoring and document the results 
in writing. In fact, what the New Mexico SIP provides is that SMP I 
burners have the option of either (1) burning during daylight hours at 
least 300 feet from an occupied dwelling, workplace, or place where 
people congregate; or (2) burning only during times when the 
ventilation is good or better and conducting visual monitoring along 
with burning. (see Subsection A of 20.2.65.102 NMAC)
    In addition, Section H.1.e, Air Quality Monitoring, incorrectly 
states that SMP I burners are required to conduct visual monitoring. 
Visual monitoring under SMP I is required whenever the burn is 
conducted within a one-mile radius of a population.
    Response: We agree with this comment. The proposed notice did not 
identify that Subsection A of 20.2.65.102 NMAC also provides for the 
option (``option 1'') of burning during the hours from one hour after 
sunrise until one hour before sunset, at least 300 feet from an 
occupied dwelling, workplace, or place where people congregate in 
addition to the option (``option 2'') described in the notice of 
limiting burning only during times when the ventilation index category 
is rated ``Good'' or better. In addition, the commenter is correct that 
SMP I burners are only required to perform visual monitoring if the 
burn is conducted within a one-mile radius of a population under option 
1 described above or if the burn is conducted under option 2.
    Thus, we are clarifying that the terms of the submitted SIP under 
review had included these options and requirements for SMP I burns. The 
review considerations for this additional option would not change our 
conclusion that the Smoke Management rule meets the requirements to 
address air quality monitoring and evaluation of smoke dispersion as 
described in Section III.F of the proposed notice.

E. Comments on Taking No Action on NOX BART

    Multiple commenters have acknowledged that our proposal did not

[[Page 70704]]

address NOX BART at the San Juan Generating Station, but 
they nonetheless submitted comments concerning the NOX BART 
part of New Mexico's 2011 Regional Haze SIP submittal (as well as a 
pending 2011 Interstate Transport SIP for visibility that relies on the 
2011 submitted NOX BART determination). In brief, several 
commenters urged EPA to take action to approve the NOX BART 
portion of the SIP submittal (leading to withdrawal of the FIP), while 
another commenter urges EPA ``to hold to its final NOX BART 
determination at SJGS.''
    The NOX BART submittal was not evaluated and not in the 
scope of our original proposal. There has been no supplemental 
proposal, and the NOX BART submittal is manifestly not part 
of today's final action. Judicial review is authorized for today's 
approval of the various parts of the SIP submittal on which we are 
taking final action. See CAA 307(b)(1). In contrast, the NOX 
BART portion of the SIP submittal is not the subject of a final action 
``approving * * * any implementation plan under [CAA Section 110] * * * 
or any other final action of the Administrator under [the CAA] 
(including any denial or disapproval by the Administrator under 
subchapter I of [the CAA]).'' Id. We accordingly regard the various 
comments received concerning NOX BART to provide no grounds 
or jurisdictional basis for judicial review. However, commenters have 
made various assertions regarding our obligations to act on the 
NOX BART portion of the SIP, some aspects of which are 
factually inaccurate. We believe it is appropriate to respond to some 
of these remarks for the informational benefit of these stakeholders 
and the public.
    Comment: EPA's proposal does not address the NOX BART 
determination for San Juan Generating Station that was submitted by New 
Mexico in 2011. EPA should act expeditiously to review and approve New 
Mexico's BART determination.
    Response: We acknowledge that New Mexico's submitted NOX 
BART determination for SJGS is not addressed by our proposal and final 
action. We also acknowledge that this part of the SIP submittal, at 
this time, remains pending review. Unless this part of the SIP 
submittal is withdrawn by the State before EPA takes final action upon 
it, the Clean Air Act requires that EPA takes final action to approve 
or disapprove this part of the SIP submittal by January 5, 2013, i.e., 
18 months after its receipt. This requirement follows from the 
Administrator's nondiscretionary duty to approve or disapprove SIP 
submittals under the deadlines prescribed at CAA Section 110(k). If EPA 
misses the deadline found in this section of the CAA, the agency may be 
subject to a civil suit in a United States District Court that will 
order and compel the performance of this nondiscretionary duty. See CAA 
Section 304(a).
    Comment: One commenter asserts that we cannot approve New Mexico's 
reasonable progress goals based on uncertain NOX BART 
reductions at SJGS. The commenter takes note that our proposal had 
stated our expectation that ``future emission reductions will be 
achieved in compliance with the existing [FIP] or in compliance with 
the terms of a future-approved BART determination for SJGS determined 
to consistent with RHR requirements.'' The commenter asserts that EPA 
cannot relax the 0.05 lb/MMbtu limit in the FIP unless it is judicially 
overturned.
    Response: We do not agree that NOX BART reductions are 
uncertain in a way that bars approval of the submitted reasonable 
progress goals. As detailed in our proposal, the reasonable progress 
goals submitted to satisfy the requirements of 40 CFR 51.309(g) RHR 
requirements have utilized visibility improvements projected in WRAP 
modeling. The WRAP modeling includes some assumptions about future 
emissions from the SJGS and FCPP based on consultation with the states 
but does not include the level of NOX reductions currently 
anticipated from implementation of BART at FCPP or SJGS. Our reference 
to the existing FIP or a future-approved BART Determination from a 
state SIP submittal was offered to merely observe that we expect the 
additional emission reductions will result in improved future 
visibility conditions beyond the visibility projections and established 
reasonable progress goals based on the WRAP modeling. We believe this 
provides valuable context for our review of the 51.309(g) SIP submittal 
and to persons who read the proposal. We referenced anticipated 
emission reductions at Four Corners Power Plant (FCPP) for the same 
reason, except in that case the emission controls for that emission 
source are not subject to the jurisdiction of the New Mexico 
Environment Department. We do not agree that BART emission limits at 
FCPP had to be finalized as a predicate for our action on the New 
Mexico Regional Haze SIP. We note that the final rule addressing BART 
at FCPP (77 FR 51620) published on August 24, 2012 (after the 
publication of our proposed notice) requires an 80% reduction in 
NOX emissions across all five units or for the shutdown of 
units 1, 2 and 3 and emission reductions at Units 4 and 5 to meet an 
emission limit of 0.098 lb/MMBtu NOX, resulting in an 87% 
reduction in total NOX emissions. As discussed elsewhere in 
this notice, we find New Mexico's assessment of RPGs and long term 
strategy to be adequate, providing sufficient basis for our approval. 
We expect the state to include any corrections and updates to emission 
reductions in its next Regional Haze SIP with updated modeling to 
quantify the visibility improvement that results from all emission 
reduction measures in place by 2018.
    Of course, any references in the proposal to the existing FIP for 
SJGS or to a future-approved BART determination consistent with the RHR 
(i.e., from a state SIP submittal or amendment of the existing FIP) 
would necessarily assume that our past and future actions regarding 
NOX BART at SJGS will be upheld against any judicial 
challenges. Since we consider the FIP to have been validly promulgated 
and we have not proposed to revise its limits or proposed to approve 
any state-submitted BART determination with different limits into the 
New Mexico SIP, the commenter's contention that EPA may not relax the 
BART limit promulgated in the FIP is not presently in issue. Commenters 
are not barred from resubmitting this comment as it may, in their view, 
apply toward future proposals, if any, regarding NOX BART 
for SJGS.
    Comment: An existing consent decree that requires EPA action on 
``all remaining RH SIP elements'' by November 15, 2012 requires EPA to 
act on the NOX BART element of New Mexico's 2011 regional 
haze SIP submittal by that date.
    Response: The basis for the lawsuit that led to EPA's entry into 
the referenced consent decree was EPA's failure to ensure all regional 
haze requirements for New Mexico were effective on the expiration of a 
2 year FIP clock that began when EPA found that New Mexico failed to 
submit a SIP revision to address all the requirements of the Regional 
Haze Rule. See CAA Section 110(c). The consent decree does not compel 
EPA action on any particular RH SIP submittal. NOX BART, 
addressed by our earlier FIP, and already addressed by the time of 
EPA's entry into the consent decree is not a ``remaining'' RH SIP 
element under the consent decree. We note our compliance with the 
consent decree is subject to review by the judge who maintains 
jurisdiction over it. We further note that EPA's original proposal date 
was also required by this consent decree, and no

[[Page 70705]]

parties to the consent decree have suggested that EPA failed to follow 
its terms, either in comments on the proposal or to the supervising 
judge.
    Comment: Section 110(k)(3) of the CAA requires EPA to take action 
on the entire 2011 Regional Haze SIP submittal, which includes the 
NOX BART portion which was not covered by the proposal. The 
text of Section 110(k)(3) suggests this is required by its phrasing 
that a SIP submittal shall be approved ``as a whole.'' EPA cannot break 
apart a single SIP submittal and take final action only on certain 
individual components of the SIP.
    Response: We disagree, because we find that NOX BART is 
a severable component of the New Mexico Regional Haze SIP. We believe 
it can be reviewed and acted upon separately from the other components 
of the submitted SIP revision without compromising our approvability 
analysis or compromising the opportunities of the public to understand 
and comment on the proposed action. Aside from a comment regarding 
reasonable progress goals that we have rejected above, no comments have 
suggested otherwise. Section 110(k)(3) does not require EPA to act on 
the entirety of a SIP submittal in one proposal and one final action. 
Instead, unless parts of a submittal are not severable from each other, 
EPA has the flexibility to propose and finalize action on some 
components of a submittal while deferring review of other independent 
parts. EPA's authority to proceed with separate proposal and final 
actions on self-standing parts of submitted SIP revisions is confirmed, 
and not at all barred, by 110(k)(3). This is evident from innumerable 
past EPA actions reviewing submitted SIP revisions from state and local 
air quality authorities throughout the country; this long 
implementation history includes past EPA actions on SIP submittals from 
the state of New Mexico. Given that a State can freely package 
miscellaneous provisions dealing with different Clean Air Act 
requirements into one submittal, EPA generally has the discretion to 
act on severable parts of any submittal at different times. This 
discretion can allow prioritization of resources, may avoid confusion 
of issues for commenters, and may promote efficient review and 
administrative processing of pending submitted SIP revisions. For 
example, the NOX BART component of the submitted SIP 
revision, assuming it were deemed approvable in whole or in part, would 
potentially entail Administrator action to withdraw or revise the 
previously promulgated FIP. This action may not be signed by the 
Regional Administrator (as is the case with this final action), and it 
may be subject to the procedures and review requirements of CAA Section 
307(d) (as is not the case with this final action). As previously 
discussed, we do acknowledge the statutory obligation to act on the 
NOX BART component of the submitted SIP revisions by January 
5, 2013. In so doing, our review of the submitted NOX BART 
determination will be subject to Section 110(k)(3), which generally 
requires approval, disapproval, or possible partial approval/partial 
disapproval, consistent with future findings on whether it meets the 
requirements of the Clean Air Act.
    Because we have not proposed action on the submitted NOX 
BART determination of July 2011, we deem this comment (as well as the 
other comments we have addressed in this section) to be outside the 
scope of our proposal and to be no bar to today's approval action.

V. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 USC 7410(k); 40 CFR 52.02(a). Thus, 
in reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the Clean Air Act. Accordingly, 
this action merely approves state law as meeting Federal requirements 
and does not impose additional requirements beyond those imposed by 
state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 USC 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 USC 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 USC 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the 
SIP is not approved to apply in Indian country located in the state, 
and EPA notes that it will not impose substantial direct costs on 
tribal governments or preempt tribal law. Consistent with EPA policy, 
EPA nonetheless offered consultation to tribes regarding the rulemaking 
action.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by January 28, 2013. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations,

[[Page 70706]]

Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur dioxides, Visibility, Regional haze, 
Best available control technology.

    Dated: November 15, 2012.
Ron Curry,
Regional Administrator, Region 6.
    40 CFR part 52 is amended to read 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 GG--New Mexico

0
2. Section 52.1620 is amended:
0
a. In paragraph (c), under the first table entitled ``EPA Approved New 
Mexico Regulations'' by revising the entries for Part 60, Part 61, Part 
73, and Part 80, and adding new entries in sequential order for ``Part 
65'' and ``Part 81'', and
0
b. In paragraph (e), under the second table entitled ``EPA Approved 
Nonregulatory Provisions and Quasi-Regulatory Measures in The New 
Mexico SIP'' by adding to the end of the table a new entry for 
``Regional Haze SIP under 40 CFR 51.309''.
    The additions and revisions read as follows:


Sec.  52.1620  Identification of plan.

* * * * *
    (c) * * *

----------------------------------------------------------------------------------------------------------------
                                                            State
                                                          approval/
          State citation               Title/Subject      effective     EPA Approval date         Comments
                                                             date
----------------------------------------------------------------------------------------------------------------
          New Mexico Administrative Code (NMAC) Title 20--Environment Protection Chapter 2--Air Quality
 
                                                  * * * * * * *
Part 60..........................  Open Burning........   12/31/2003  11/27/2012 [Insert    ....................
                                                                       FR page number
                                                                       where document
                                                                       begins].
Part 61..........................  Smoke and Visible      11/30/1995  9/26/1997, 62 FR      ....................
                                    Emissions.                         50514.
Part 65..........................  Smoke Management....   12/31/2003  11/27/2012 [Insert    ....................
                                                                       FR page number
                                                                       where document
                                                                       begins].
 
                                                  * * * * * * *
Part 73..........................  Notice of Intent and     7/6/2011  11/27/2012 [Insert    ....................
                                    Emissions Inventory                FR page number
                                    Requirements.                      where document
                                                                       begins].
 
                                                  * * * * * * *
Part 80..........................  Stack Heights.......   11/30/1995  9/26/1997, 62 FR      ....................
                                                                       50514.
Part 81..........................  Western Backstop         7/6/2011  11/27/2012 [Insert    ....................
                                    Sulfur Dioxide                     FR page number
                                    Trading Program.                   where document
                                                                       begins].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
    (e) * * *
* * * * *

            EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the New Mexico SIP
----------------------------------------------------------------------------------------------------------------
                                                            State
                                        Applicable        submittal/
      Name of SIP provision            geographic or      effective     EPA Approval date        Explanation
                                    nonattainment area       date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Regional Haze SIP under 40 CFR     Statewide (except       6/24/2011  11/27/2012 [Insert    Nitrogen oxides Best
 51.309.                            Bernalillo County).                FR page number        Available Retrofit
                                                                       where document        Technology
                                                                       begins].              determination for
                                                                                             San Juan Generating
                                                                                             Station not
                                                                                             included in
                                                                                             approval action.
----------------------------------------------------------------------------------------------------------------


[[Page 70707]]

[FR Doc. 2012-28591 Filed 11-26-12; 8:45 am]
BILLING CODE 6560-50-P