[Federal Register Volume 77, Number 239 (Wednesday, December 12, 2012)]
[Rules and Regulations]
[Pages 73926-73934]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-29985]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2011-0400; FRL-9756-9]


Approval and Promulgation of State Implementation Plans; State of 
Wyoming; Regional Haze Rule Requirements for Mandatory Class I Areas 
Under 40 CFR 51.309

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving Wyoming State Implementation Plan (SIP) 
revisions submitted on January 12, 2011 and April 19, 2012 that address 
regional haze. These SIP revisions were submitted to address the 
requirements of the Clean Air Act (CAA or Act) and our rules that 
require states to prevent any future and remedy any existing man-made 
impairment of visibility in mandatory Class I areas caused by emissions 
of air pollutants from numerous sources located over a wide geographic 
area (also referred to as the ``regional haze program''). States are 
required to assure reasonable progress toward the national goal of 
achieving natural visibility conditions in Class I areas. EPA is taking 
this action pursuant to section 110 of the CAA.

DATES: This final rule is effective January 11, 2013.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R08-OAR-2011-0400. 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 Program, Environmental Protection Agency (EPA), 
Region 8, 1595 Wynkoop Street, Denver, Colorado 80202-1129. EPA 
requests that if, at all possible, you contact the individual listed in 
the FOR FURTHER INFORMATION CONTACT section to view the hard copy of 
the docket. You may view the hard copy of the docket Monday through 
Friday, 8 a.m. to 4 p.m., excluding Federal holidays.

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

SUPPLEMENTARY INFORMATION: 

Definitions

    For the purpose of this document, we are giving meaning to certain 
words or initials as follows:
    i. The words or initials Act or CAA mean or refer to the Clean Air 
Act, unless the context indicates otherwise.
    ii. The initials BART mean or refer to Best Available Retrofit 
Technology.
    iii. The initials EGUs mean or refer to electric generating units.
    iv. The initials GCVTC mean or refer to the Grand Canyon Visibility 
Transport Commission.
    v. The initials NOX mean or refer to nitrogen oxides.
    vi. The initials PM mean or refer to particulate matter.
    vii. The initials SIP mean or refer to State Implementation Plan.
    viii. The initials URP mean or refer to uniform rate of progress.
    ix. The initials WAQSR mean or refer to Wyoming Air Quality 
Standards and Regulations.

Table of Contents

I. Background
    A. Regional Haze
    B. Lawsuits
    C. Our Proposal
    D. Public Participation
II. Final Action
III. Basis for Our Final Action
IV. Issues Raised by Commenters and EPA's Responses
    A. Backstop Trading Program
    B. General Comments
    V. Statutory and Executive Order Reviews

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 the 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. 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

[[Page 73927]]

December 17, 2007. 40 CFR 51.308(b) and 40 CFR 51.309(c).
    Wyoming submitted SIPs addressing regional haze on January 12, 2011 
and April 19, 2012 (these superseded and replaced prior SIP submittals 
dated December 24, 2003, May 7, 2004, and November 21, 2008).

B. Lawsuits

    In a lawsuit in the U.S. District Court for the District of 
Colorado, environmental groups sued us for our failure to take timely 
action with respect to the regional haze requirements of the CAA and 
our regulations for the State of Wyoming. 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 of 40 CFR 51.309 for Wyoming by November 14, 2012.\1\ We 
are meeting that requirement with the signing of this notice of final 
rulemaking.
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    \1\ The State submitted another SIP revision dated January 12, 
2011 that addresses the requirements of 40 CFR 51.309(g) and 40 CFR 
51.309(d)(4)(vii). We are under a consent decree deadline to take 
final action on this SIP by December 14, 2012. We will be taking 
final action on this SIP in a separate action.
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C. Our Proposal

    We signed our notice of proposed rulemaking on May 9, 2012, and it 
was published in the Federal Register on May 24, 2012 (77 FR 30953). 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 Wyoming SIP revisions 
submitted on January 12, 2011 and April 19, 2012 that address the 
regional haze rule (RHR) for the mandatory Class I areas under 40 CFR 
51.309. EPA proposed that the January 12, 2011 and April 19, 2012 SIPs 
meet the requirements of 40 CFR 51.309, with the exception of 40 CFR 
51.309(d)(4)(vii), and 40 CFR 51.309(g), as explained below.
    As part of the January 12, 2011 and April 19, 2012 SIPs, the State 
submitted revisions to the Wyoming Air Quality Standards and 
Regulations (WAQSR). The State submitted WAQSR Chapter 14, Sections 2 
and 3--Emission Trading Program Regulations. WAQSR Chapter 14, in 
conjunction with the SIP, implements the backstop trading program 
provisions in accordance with the applicable requirements of 40 CFR 
51.308 and 40 CFR 51.309. We proposed to approve WAQSR Chapter 14, 
Section 2 and Section 3. The State also submitted WAQSR Chapter 10, 
Section 4--Smoke Management. WAQSR Chapter 10, Section 4, in 
conjunction with the SIP, implements the requirements for smoke 
management under 40 CFR 51.309(d)(6). We proposed to approve WAQSR 
Chapter 10, Section 4.
    The State's submitted another SIP revision dated January 12, 2011 
that addresses the requirements under 40 CFR 51.309(d)(4)(vii) and 40 
CFR 51.309(g) pertaining to best available retrofit technology (BART) 
for particulate matter (PM) and nitrogen oxides (NOX) and 
additional Class I areas, respectively. EPA proposed action on this SIP 
in a separate notice (77 FR 33022). In addition, the January 12, 2011 
and April 19, 2012 submittals we proposed to act on supersede and 
replace regional haze SIPs submitted on December 24, 2003, May 27, 
2004, and November 21, 2008.

D. Public Participation

    We requested comments on all aspects of our proposed action and 
provided a sixty-day comment period, with the comment period closing on 
July 23, 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 Wyoming SIP revisions submitted on 
January 12, 2011 and April 19, 2012 that address the RHR requirements 
for the mandatory Class I areas under 40 CFR 51.309. EPA taking final 
action to find that the January 12, 2011 and April 19, 2012 SIPs meet 
the requirements of 40 CFR 51.309, with the exception of 40 CFR 
51.309(d)(4)(vii), and 40 CFR 51.309(g).
    As part of the January 12, 2011 submittal, the State submitted 
revisions to WAQSR. The State submitted WAQSR Chapter 14, Sections 2 
and 3--Emission Trading Program Regulations. We are approving WAQSR 
Chapter 14, Section 2 and Section 3. The State also submitted WAQSR 
Chapter 10, Section 4--Smoke Management. We are approving WAQSR Chapter 
10, Section 4. We are also approving Wyoming's April 19, 2012 SIP 
submittal that contains the pre-trigger emission inventory 
requirements, which are covered by WAQSR Chapter 14, Section 3--
Emission Inventory.

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 Wyoming's regional haze SIP 
submittal against the regional haze requirements at 40 CFR 51.300-
51.309 and CAA sections 169A and 169B. 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 Wyoming's SIP submittal is based on CAA section 
110(k).
    We are approving the State's regional haze SIP provisions because 
they meet the relevant regional haze requirements. 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. However, the comments have not convinced us that the 
State did not meet the requirements of 40 CFR 51.309 that we proposed 
to approve.

IV. Issues Raised by Commenters and EPA's Responses

A. Backstop Trading Program

    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

[[Page 73928]]

consistently submitted and specifically directed to the component of 
the published proposals dealing with the 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 Wyoming) will be 
addressed in the next section where we also address all other comments 
received.
    Comment: 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 electric generating units (EGUs) from 
compliance with BART.
    Response: The CAA 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 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 be 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 CAA 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 three of nine transport states remain in the program. The Grand 
Canyon Visibility Transport Commission (GCVTC) 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 three 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 Region States will limit the 
effectiveness of the program in the three 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 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 GCVTC 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 GCVTC 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.

[[Page 73929]]

    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 GCVTC 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, with Class I areas not on the 
Colorado Plateau, implementing the provisions of section 309 must also 
separately demonstrate reasonable progress for any additional mandatory 
Class I 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''). The submitted SIP revisions 
from the 309 states have accordingly and appropriately, followed our 
advice that the presumptions for EGUs in the BART guidelines, generally 
``should'' be used for comparisons to the trading program unless the 
state determines otherwise.
    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 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 tons per year (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

[[Page 73930]]

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, as 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. 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. We note the 2018 milestone constitutes an emissions 
cap that persists after 2018 unless the trading program can 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 SO2 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 required to secure emission 
reductions as may be

[[Page 73931]]

necessary to meet their emission allocations 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 40 CFR 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, encourages, 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 program is designed to permit, not cap, source growth, so 
long as the national ambient air quality standards and other 
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 that 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 (URP) 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 responses to 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 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 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 Wyoming 
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 CAA requirements.
    Response: We did not focus on the WRAP's discussion of early 
emission reductions in our proposal. However, we do not understand 
commenter's claim or 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 an 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 violates 40 CFR 
51.308(e)(2)(iv), regarding surplus reductions.
    Comment: EPA must correct discrepancies between the data presented 
in the 309 SIPs.\3\ There are discrepancies in what has been presented 
as the results of WRAP photochemical modeling. The New

[[Page 73932]]

Mexico regional haze SIP proposal shows, for example, that the 20% 
worst days at Grand Canyon National Park have visibility impairment of 
11.1 deciviews, while the other 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.
---------------------------------------------------------------------------

    \3\ 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 proposed 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 in the table below. The 
discrepancies come from New Mexico using different preliminary 
reasonable progress cases developed by the WRAP. The Wyoming, Utah, and 
Albuquerque proposed notices incorrectly identify the Preliminary 
Reasonable Progress (PRP) 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 our proposed notices for 
Wyoming, Utah, and Albuquerque 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 Preliminary    2018 Preliminary
                                                                              reasonable          reasonable
                 Class I area                             State             progress PRP18a     progress PRP18b
                                                                            case (deciview)     case (deciview)
----------------------------------------------------------------------------------------------------------------
Grand Canyon National Park....................  AZ                                      11.3                11.1
Mount Baldy Wilderness........................  AZ                                      11.4                11.5
Petrified Forest National Park................  AZ                                      12.9                12.8
Sycamore Canyon Wilderness....................  AZ                                      15.1                15.0
Black Canyon of the Gunnison National Park      CO                                       9.9                 9.8
 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
----------------------------------------------------------------------------------------------------------------

    We are not re-noticing our proposed rulemaking as the discrepancies 
do not change our proposed conclusion that the SIP submitted by Wyoming 
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 Wyoming's SIP adequately 
projects the improvement in visibility for purposes of Section 309.

B. General Comments

    Comment: We received comments from PacifiCorp and New Mexico 
Environment Department supporting our proposed approval of Wyoming's 
309 SIP.
    Response: We acknowledge the commenters' support of our proposed 
rulemaking.

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 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

[[Page 73933]]

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.
    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 February 11, 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, Sulfur oxides, 
Incorporation by reference.

     Dated: November 13, 2012.
James B. Martin,
Regional Administrator, Region 8.

    40 CFR part 52 is amended 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 ZZ--Wyoming

0
2. Section 52.2620 is amended by:
0
a. Amending the table in paragraph (c)(1) under Chapter 10 by adding an 
entry for Section 4.
0
b. Amending the table in paragraph (c)(1) by adding Chapter 14 
consisting of entries for Section 2 and Section 3.
0
c. Amending the table in paragraph (e) by adding entry ``XX'' at the 
end of the table.
    The additions read as follows:


Sec.  52.2620  Identification of plan.

* * * * *
    (c) * * *
    (1) * * *

 
----------------------------------------------------------------------------------------------------------------
                                                      State adopted and   EPA approval date
         State citation             Title/subject      effective date     and  citation \1\      Explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                                   Chapter 10
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 4......................  Smoke Management..  2/17/2005, 4/5/     12/12/2012 [Insert
                                                      2005.               FR page number
                                                                          where document
                                                                          begins].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                                   Chapter 14
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
Section 2......................  Western Backstop    2/27/2008, 5/7/     12/12/2012 [Insert
                                  Sulfur Dioxide      2008.               FR page number
                                  Trading Program.                        where document
                                                                          begins].
Section 3......................  Sulfur Dioxide      2/27/2008, 5/7/     12/12/2012 [Insert
                                  Milestone           2008.               FR page number
                                  Inventory.                              where document
                                                                          begins].
----------------------------------------------------------------------------------------------------------------
\1\ In order to determine the EPA effective date for a specific provision listed in this table, consult the
  Federal Register notice cited in this column for the particular provision.

* * * * *
    (e) * * *

[[Page 73934]]



 
----------------------------------------------------------------------------------------------------------------
                                     Applicable
   Name of nonregulatory SIP        geographic or      State submittal    EPA approval date      Explanations
           provision             nonattainment area   date/adopted date   and citation \3\
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
XX. Wyoming State                Statewide.........  Submitted: 1/12/    12/12/2012 [Insert
 Implementation Plan for                              2011.               Federal Register
 Regional Haze for 309.                                                   page number where
                                                                          the document
                                                                          begins].
----------------------------------------------------------------------------------------------------------------
\3\ In order to determine the EPA effective date for a specific provision listed in this table, consult the
  Federal Register notice cited in this column for the particular provision.

[FR Doc. 2012-29985 Filed 12-11-12; 8:45 am]
BILLING CODE 6560-50-P