[Federal Register Volume 77, Number 230 (Thursday, November 29, 2012)]
[Rules and Regulations]
[Pages 71119-71129]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-28822]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2008-0702; FRL-9755-5]


Approval and Promulgation of State Implementation Plans; City of 
Albuquerque-Bernalillo County, New Mexico; Interstate Transport 
Affecting Visibility and 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 the City of Albuquerque--Bernalillo County, 
New Mexico State Implementation Plan (SIP) revisions submitted by the 
Governor of New Mexico on July 28, 2011 addressing the regional haze 
requirements for the mandatory Class I areas under 40 CFR 51.309. The 
EPA finds that these revisions to the State Implementation Plan (SIP) 
and associated rules meet the requirements of the Clean Air Act (CAA) 
and comply with the provisions of 40 CFR 51.309, thereby meeting 
requirements for reasonable progress for the 16 Class I areas covered 
by the Grand Canyon Visibility Transport Commission Report for approval 
of the plan through 2018. We are also approving SIP submissions offered 
as companion rules to the Section 309 regional haze plan, specifically, 
rules for the Sulfur Dioxide Emissions Inventory Requirements and the 
Western Backstop Trading Program, submitted on December 26, 2003, 
September 10, 2008, and May 24, 2011, and rules for Open Burning, 
submitted on December 26, 2003 and July 28, 2011. These SIP revisions 
were submitted to address the requirements of the Act and our rules 
that require states to prevent any future and remedy any existing man-
made impairment of visibility in mandatory Class I areas caused by 
emissions of air pollutants from numerous sources located over a wide 
geographic area (also referred to as the ``regional haze program''). 
States are required to assure reasonable progress toward the national 
goal of achieving natural visibility conditions in Class I areas.
    We are also approving a portion of the SIP revision submitted by 
the City of Albuquerque--Bernalillo County, New Mexico on July 30, 
2007, for the purpose of addressing the ``good neighbor'' provisions of 
the CAA section 110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS and the 
PM2.5 NAAQS. We are approving the portion of the SIP 
submittal that addresses the CAA requirement concerning non-
interference with programs to protect visibility in other states. EPA 
is taking this action pursuant to section 110 of the CAA.

DATES: This final rule is effective December 31, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R06-OAR-2008-0702. 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-

[[Page 71120]]

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 RH and RHR mean or refer to Regional Haze and 
Regional Haze Rule.
    v. The initials BC and the words Albuquerque and Bernalillo 
County mean the City of Albuquerque-Bernalillo County, New Mexico
    vi. The initials AQCB mean or refer to the Albuquerque/
Bernalillo County Air Quality Control Board.
    vii. The initials BART mean or refer to Best Available Retrofit 
Technology.
    viii. The initials OC mean or refer to organic carbon.
    ix. The initials EC mean or refer to elemental carbon.
    x. The initials VOC mean or refer to volatile organic compounds.
    xi. The initials EGUs mean or refer to Electric Generating 
Units.
    xii. The initials NOX mean or refer to nitrogen oxides.
    xiii. The initials SO2 mean or refer to sulfur dioxide.
    xiv. The initials PM10 mean or refer to particulate matter with 
an aerodynamic diameter of less than 10 micrometers.
    xv. The initials PM2.5 mean or refer to particulate matter with 
an aerodynamic of less than 2.5 micrometers.
    xvi. The initial RPGs mean or refer to reasonable progress 
goals.
    xvii. The initials RPOs mean or refer to regional planning 
organizations.
    xviii. The initials WRAP mean or refer to the Western Regional 
Air Partnership.
    xix. The initials GCVTC mean or refer to the Grand Canyon 
Visibility Transport Commission.

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. 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 is authorized to administer and enforce the CAA and the 
New Mexico Air Quality Control Act, and to require local air pollution 
sources to comply with air quality standards. The AQCB has submitted a 
Section 309 regional haze SIP for its geographic area of New Mexico 
under the New Mexico Air Quality Control Act (section 74-2-4). The BC 
RH SIP 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)(i) of the CAA are satisfied for 
the entire State of New Mexico. 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 and address the requirement that emissions 
from a state do not interfere with measures of other states to protect 
visibility.

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. 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).
    The AQCB submitted the BC RH SIP to EPA on July 28, 2011, and it 
adds to earlier RH SIP planning components that were submitted on 
December 26, 2003.

B. Interstate Transport and Visibility

    On July 18, 1997, we promulgated new NAAQS for 8-hour ozone and for 
PM2.5. 62 FR 38652. Section 110(a)(1) of the CAA requires 
states to submit SIPs to address a new or revised NAAQS within 3 years 
after promulgation of such standards, or within such shorter period as 
we may prescribe. Section 110(a)(2)(D)(i)(II) of the Act requires that 
states have a SIP, or submit a SIP revision, containing provisions 
``prohibiting any source or other type of emission activity within the 
state from emitting any air pollutant in amounts which will * * * 
interfere with measures required to be included in the applicable 
implementation plan for any other State under part C [of the CAA] * * * 
to protect visibility.'' Because of the impacts on visibility from the 
interstate transport of pollutants, we interpret the ``good neighbor'' 
provisions of section 110 of the Act described above as requiring 
states to include in their SIPs either measures to prohibit emissions 
that would interfere with the reasonable progress goals set to protect 
Class I areas in other states, or a demonstration that emissions from 
BC sources and activities will not have the prohibited impacts on other 
states' existing SIPs.
    The EPA received a SIP revision adopted by AQCB on September 12, 
2007 to address the interstate transport provisions of CAA 
110(a)(2)(D)(i) for the 1997 ozone and PM2.5 NAAQS.

C. 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 lawsuit 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 this lawsuit, we entered into a consent decree. The 
consent decree requires that we sign a notice of final rulemaking 
addressing the regional haze requirements for Bernalillo County by 
November 15, 2012. We are meeting that requirement with the signing of 
this notice of final rulemaking.

[[Page 71121]]

D. Our Proposal

    We signed our notice of proposed rulemaking on April 12, 2012, and 
it was published in the Federal Register on April 25, 2012 (77 FR 
24768). In that notice, we provided a detailed description of the 
various regional haze requirements and interstate transport and 
visibility 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 BC SIP 
revisions submitted on July 28, 2011 addressing 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 also proposed to approve a portion of 
the BC SIP revision submitted on July 30, 2007, for the purpose of 
addressing the ``good neighbor'' provisions of the CAA section 
110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS and the 
PM2.5 NAAQS. This proposal proposed to approve the portion 
of the SIP submittal that addresses the CAA requirement concerning non-
interference with programs to protect visibility in other states.

E. 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 May 25, 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 City of Albuquerque--Bernalillo 
County, New Mexico SIP revisions submitted on July 28, 2011 addressing 
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. In conjunction with this approval, we 
are also approving the following related rules: 20.11.46 NMAC, Sulfur 
Dioxide Emission Inventory Requirements; Western Backstop Sulfur 
Dioxide Trading Program (submitted after initial adoption on December 
26, 2003, with revisions submitted on September 10, 2008, and May 24, 
2011) and 20.11.21 NMAC, Open Burning (submitted after initial adoption 
on December 26, 2003, with revisions submitted on July 28, 2011).
    We are approving a portion of the SIP revision submitted by the 
City of Albuquerque--Bernalillo County, New Mexico on July 30, 2007, 
for the purpose of addressing the ``good neighbor'' provisions of the 
CAA section 110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS and the 
PM2.5 NAAQS.\1\ We are approving the portion of the SIP 
submittal that addresses the CAA requirement concerning non-
interference with programs to protect visibility in other states.
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    \1\ There are four ``prongs'' under the ``good neighbor'' 
provisions of the CAA section 110(a)(2)(D)(i). On November 8, 2012 
(75 FR 68447), we approved a SIP revision that air pollutant 
emissions from sources within BC do not significantly contribute to 
nonattainment of the 1997 ozone NAAQS and the PM2.5 NAAQS 
in any other state. On September 19, 2012, we approved a SIP 
revision that air pollutant emissions from sources within BC do not 
interfere with prevention of significant deterioration (PSD) 
measures required in the SIP of any other state for the 1997 ozone 
and PM2.5 NAAQS.
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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 BC's regional haze SIP submittal 
against the regional haze requirements at 40 CFR 51.300-51.309 and CAA 
sections 169A and 169B. A detailed explanation of how the Albuquerque 
SIP submittal meets these requirements is contained in the proposal. 
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 BC's SIP submittal 
is based on CAA section 110(k).
    We are approving BC's regional haze SIP provisions 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 City of Albuquerque -Bernalillo County) 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). 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

[[Page 71122]]

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 D.C. Circuit 
in Center for Energy and Economic Development v. EPA, 398 F.3d 653, 
659-660 (D.C. Cir. 2005) in a challenge to the backstop market trading 
program under Section 309, and again found to reasonable by the D.C. 
Circuit in Utility Air Regulatory Group v. EPA, 471 F.3d 1333, 1340 
(D.C. 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 33769 (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 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).

    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

[[Page 71123]]

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 Fed. Reg. 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 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

[[Page 71124]]

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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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: 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 SO2 
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

[[Page 71125]]

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 City of 
Albuquerque-Bernalillo County does in fact reasonably provide for 
``steady and continuing emissions reductions through 2018.''
    Comment: The WRAP attempts to justify the SO2 trading 
program because 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.
---------------------------------------------------------------------------

    \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

[[Page 71126]]

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 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 City of Albuquerque--Bernalillo County 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 BC SIP adequately projects the improvement 
in visibility for purposes of Section 309.

B. Additional Comments

    Comment: The regional haze regulations at 40 CFR 51.308(e)(2)(i)(B) 
require that ``each BART-eligible source in the State must be subject 
to the requirements of the alternative program, [and] have a federally 
enforceable emission limitation determined by the State and approved by 
EPA as meeting BART * * *'' The sole coal-fired electric generating 
units (``EGUs'') that are subject to BART in New Mexico are the four 
units at the San Juan Generating Station (``SJGS''). While the BC RH 
SIP lists SJGS as a BART eligible source, it fails to identify a 
federally enforceable emission limitation for SO2 that is 
determined to be BART by the State and has been approved by EPA as 
meeting BART. As such, the BC RH SIP fails to comply with 40 CFR 
51.308(e)(2)(i)(B).
    Response: This comment presents a flawed reading of our regulations 
by inserting the word ``and'' where it does not, in fact, appear in the 
language of 40 CFR 51.308(e)(2)(i)(B). 40 CFR 51.308(e)(2)(i)(B) 
requires that ``each BART-eligible source in the State must be subject 
to the requirements of the alternative program, have a federally 
enforceable emission limitation determined by the State and approved by 
EPA as meeting BART in accordance with section 302(c) or paragraph 
(e)(1) of this section, or otherwise addressed under paragraphs (e)(1) 
or (e)(4) of this section.'' This section of the rule requires that 
each BART-eligible source be covered by the alternative program or 
satisfy the BART requirements by either participation in a ``Transport 
Rule Federal Implementation Plan'' under paragraph (e)(4) or by 
determining BART for the source under paragraph (e)(1). Because there 
are no BART-eligible sources in Bernalillo County, the requirement to 
make BART determinations does not apply. As was detailed in the 
proposal, the alternative program satisfies the requirements of 40 CFR 
51.308(e)(2)(i)(B), because all BART-eligible sources are covered by 
the alternative program. We also note the alternative program goes 
further to additionally cover point sources that have actual emissions 
of SO2 greater than 100 tons per year (sources meeting the 
requirements of 20.2.81.101. NMAC).
    Comment: The BC 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

[[Page 71127]]

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 commenters request an opportunity to review 
any visibility modeling or related analysis and that EPA reject the BC 
RH SIP until these issues are fully addressed.
    Response: 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.\5\ 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.
---------------------------------------------------------------------------

    \5\ 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 \6\ 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. We find 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 BC RH SIP submittal therefore complies with 40 CFR 
51.309(g)(1) and (2).
---------------------------------------------------------------------------

    \6\ AQD exhibit5 EPA Docket EPA-R06-OAR-2008-0702-0013 
beginning at page 227. 
---------------------------------------------------------------------------

    Comment: Section 51.308(d)(1)(vi) states, ``[t]he State may not 
adopt a reasonable progress goal that represents less visibility 
improvement than is expected to result from implementation of other 
requirements of the CAA during the applicable planning period. 40 CFR 
51.308(d)(1)(vi). Since the BC RH SIP's reasonable progress goals would 
result in less visibility improvement than would be achieved through 
application of BART, the BC RH SIP's reasonable progress goals must be 
revised to reflect reductions achievable through BART.
    Response: There are no Class I areas within Bernalillo County, 
therefore BC is not required to nor did they adopt reasonable progress 
goals for any Class I area. BC is required to address the apportionment 
of visibility impact from the emissions generated by sources within 
Bernalillo County at Class I areas outside of the county borders. As 
discussed above, we find 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.
    In addition, no sources in Bernalillo County satisfy the definition 
for BART-eligible sources at 40 CFR 51.301. Therefore, no visibility 
improvement is anticipated due to the application of BART within 
Bernalillo County. We note, that BC is participating in the 
SO2 emission milestone and backstop trading program. This 
program applies to all SO2 point sources over 100 tons per 
year and requires that emissions in the participating States and BC 
remain below the established milestone or result in the triggering of 
the 309 backstop trading program. The milestone caps these sources at 
actual emissions, and the program also provides for a cap on new source 
growth. The milestone schedule and the trading program submitted by BC 
and the participating states provide for steady and continuing 
emissions reductions through 2018.

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 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet

[[Page 71128]]

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 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the 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, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Sulfur 
dioxides, Visibility, Regional haze, Best available control technology, 
Interstate transport of pollution, Visibility.

    Dated: November 13, 2012.
Ron Curry,
Regional Administrator, Region 6.

    40 CFR part 52 is amended to read as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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 second table entitled ``EPA Approved 
Albuquerque/Bernalillo County, NM Regulations'' by revising the entry 
for part 21 (20.11.21 NMAC), Open Burning and adding an entry in 
sequential order for ``Part 46 (20.11.46 NMAC)''.
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 new entries to the end of the table for 
``Interstate transport for the 1997 ozone and PM2.5 NAAQS'' 
and ``Regional Haze SIP under 40 CFR 51.309''.
    The amendments read as follows:


Sec.  52.1620  Identification of plan.

* * * * *
    (c) * * *

[[Page 71129]]



                                               EPA Approved Albuquerque/Bernalillo County, NM Regulations
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          State
                                                                        approval/
            State citation                      Title/subject           effective       EPA approval date                     Explanation
                                                                           date
--------------------------------------------------------------------------------------------------------------------------------------------------------
       New Mexico Administrative Code (NMAC) Title 20--Environment Protection Chapter 11--Albuquerque/Bernalillo County Air Quality Control Board
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Part 21 (20.11.21 NMAC)...............  Open Burning.................    7/11/2011  11/29/12 and FR page
                                                                                     number where document
                                                                                     begins].
 
                                                                      * * * * * * *
Part 46 (20.11.46 NMAC)...............  Sulfur Dioxide Emission          5/16/2011  11/29/12 and FR page
                                         Inventory Requirements;                     number where document
                                         Western Backstop Sulfur                     begins].
                                         Dioxide Trading Program.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

     (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
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Interstate transport for the      Bernalillo County..    7/30/2007  11/29/12 and FR      Revisions to prohibit
 1997 ozone and PM2.5 NAAQS.                                         page number where    interference with
                                                                     document begins].    measures required to
                                                                                          protect visibility in
                                                                                          any other State.
                                                                                          Revisions to prohibit
                                                                                          contribution to
                                                                                          nonattainment in any
                                                                                          other State approved
                                                                                          11/8/2010 (75 FR
                                                                                          68447).
Regional Haze SIP under 40 CFR    Bernalillo County..    7/28/2011  11/29/12 and FR
 51.309.                                                             page number where
                                                                     document begins].
----------------------------------------------------------------------------------------------------------------


[FR Doc. 2012-28822 Filed 11-28-12; 8:45 am]
BILLING CODE 6560-50-P