[Federal Register Volume 77, Number 241 (Friday, December 14, 2012)]
[Rules and Regulations]
[Pages 74355-74372]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-29406]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2011-0114; FRL-9751-6]


Approval, Disapproval and Promulgation of State Implementation 
Plans; State of Utah; 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 partially approving and partially disapproving a State 
Implementation Plan (SIP) revision submitted by the State of Utah on 
May 26, 2011 that addresses regional haze. EPA is also approving 
specific sections of a State of Utah SIP revision submitted on 
September 9, 2008 to 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

[[Page 74356]]

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 14, 2013.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R08-OAR-2011-0114. 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 CAC mean or refer to clean air corridors.
    iv. The initials CEED mean or refer to the Center for Energy and 
Economic Development.
    v. The initials EGUs mean or refer to electric generating units.
    vi. The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    vii. The initials GCVTC mean or refer to the Grand Canyon 
Visibility Transport Commission.
    viii. The initials MRR mean or refer to monitoring, 
recordkeeping, and reporting.
    ix. The initials LNB mean or refer to low NOX burner.
    x. The initials NOX mean or refer to nitrogen oxides.
    xi. The initials NSR mean or refer to new source review.
    xii. The initials OFA mean or refer to overfire air.
    xiii. The initials PM2.5 mean or refer to particulate matter 
with an aerodynamic diameter of less than 2.5 micrometers.
    xiv. The initials PM10 mean or refer to particulate 
matter with an aerodynamic diameter of less than 10 micrometers.
    xv. The initials PSD mean or refer to prevention of significant 
deterioration.
    xvi. The initials RHR mean or refer to the Regional Haze Rule.
    xvii. The initials SIP mean or refer to State Implementation 
Plan.
    xviii. The initials SO2 mean or refer to sulfur dioxide.
    xix. The initials SOFA mean or refer to separated overfire air.
    xx. The words Utah or State mean or refer to the State of Utah.
    xxi. The initials UAR mean or refer to the Utah Administrative 
Rules.
    xxii. The initials WESP mean or refer to wet electrostatic 
precipitator.
    xxiii. The initials WRAP mean or refer to the Western Regional 
Air Partnership.

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. Legal Issues
    1. EPA Authority
    2. Presumptive Limits
    3. Compliance With the Requirements of 40 CFR 51.308
    4. Utah's Permitting Process
    5. Enforceability of BART Emission Limits
    C. Applicability of the BART Guidelines
    D. PM BART
    E. General Comments on BART
    F. Reasonable Progress
    G. Clean Air Corridors (CACs)
    H. General SIP Comments
    I. Additional Comments Pertaining to BART
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 EPA and citizens under the CAA, also known as being 
federally enforceable. If a state fails to make a required SIP 
submittal or if we find that a state's required submittal is incomplete 
or unapprovable, then we must make a finding to that effect. 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 December 17, 2007. 40 CFR 51.308(b).
    Utah submitted SIPs addressing regional haze on September 9, 2008 
and May 26, 2011. (These superseded and replaced prior SIP submittals 
dated December 12, 2003 and August 8, 2004).

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 Utah. 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 Utah by October 31, 2012. We are meeting that requirement with the 
signing of this notice of final rulemaking.

C. Our Proposal

    We published our notice of proposed rulemaking in the Federal 
Register on May 16, 2012 (77 FR 28825). 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 all sections of the May 26, 
2011 SIP submittal as meeting the requirements under 40 CFR 51.309, 
with the exception of the requirements under 40 CFR 51.309(d)(4)(vii) 
pertaining to nitrogen oxides (NOX) and particulate matter 
(PM) best available retrofit technology (BART). EPA proposed to 
disapprove the State's NOX and PM BART determinations and 
limits in section D.6.d of the SIP for the following four subject-to-
BART electric generating units (EGUs): PacifiCorp Hunter Unit 1, 
PacifiCorp Hunter Unit 2, PacifiCorp Huntington Unit 1, and PacifiCorp 
Huntington Unit 2. EPA proposed to disapprove these BART determinations 
because they do not comply with our

[[Page 74357]]

regulations under 40 CFR 51.308(e)(1) \1\ pertaining to the factors 
that need to be considered as part of a BART determination. EPA also 
proposed to disapprove the State's SIP because it does not contain the 
provisions necessary to make BART limits practically enforceable as 
required by section 110(a)(2) of the CAA and Appendix V to part 51.
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    \1\ 40 CFR 51.309(d)(vii) provides that ``The implementation 
plan must contain any necessary long term strategies and BART 
requirements for stationary source PM and NOX emissions. 
Any such BART provisions may be submitted pursuant to either Sec.  
51.308(e)(1) or Sec.  51.308(e)(2).''
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    We proposed to approve specific sections of the State's September 
9, 2008 SIP submittal. Specifically, we proposed to approve Utah 
Administrative Rules (UAR) R307-250--Western Backstop Sulfur Dioxide 
Trading Program and R307-150--Emission Inventories. R307-250, in 
conjunction with the SIP, implements the backstop trading program 
provisions in accordance with the requirements of the regional haze 
rule (RHR) under 40 CFR 51.309. The purpose of R305-150 is to establish 
consistent emission inventory reporting requirements for stationary 
sources in Utah to determine whether sulfur dioxide (SO2) 
emissions are below the SO2 milestones established for the 
trading program.

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 16, 2012. We received comments on our proposed rule that supported 
our proposed action and that were critical of our proposed action. In 
this action, we are responding to the comments we have received, taking 
final rulemaking action, and explaining the bases for our action.

II. Final Action

    We are approving all sections of the May 26, 2011 SIP submittal as 
meeting the requirements under 40 CFR 51.309, with the exception of the 
requirements under 40 CFR 51.309(d)(4)(vii) pertaining to 
NOX and PM BART. EPA is disapproving the State's 
NOX and PM BART determinations and limits in section D.6.d 
of the SIP for the following four subject-to-BART EGUs: PacifiCorp 
Hunter Unit 1, PacifiCorp Hunter Unit 2, PacifiCorp Huntington Unit 1, 
and PacifiCorp Huntington Unit 2. EPA is disapproving these BART 
determinations because they do not comply with our regulations under 40 
CFR 51.308(e)(1). EPA is also disapproving the State's SIP because it 
does not contain the provisions necessary to make BART limits 
practically enforceable as required by section 110(a)(2) of the CAA and 
Appendix V to part 51.
    We are approving specific sections of the State's September 9, 2008 
SIP submittal. Specifically, we are approving UAR R307-250--Western 
Backstop Sulfur Dioxide Trading Program and R307-150--Emission 
Inventories. We are taking no action on the rest of the September 9, 
2008 submittal as the May 26, 2011 submittal supersedes and replaces 
the remaining sections of the September 9, 2008 SIP submittal. The 
State also submitted SIPs on December 12, 2003 and August 8, 2004 to 
meet the requirements of the RHR. These submittals have been superseded 
and replaced by the September 9, 2008 and May 26, 2011 submittals. We 
are taking no action on section G--Long-Term Strategy for Fire Programs 
of the May 26, 2011 submittal as we have proposed approval of this 
section in a separate notice (76 FR 69217, November 8, 2011).

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 Utah'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 Utah's SIP submittal is based on CAA section 110(k).
    We are approving most of the State's regional haze SIP provisions 
because they meet the relevant RHR requirements and disapproving others 
because they do not meet the requirements of the RHR or other 
requirements of the CAA. 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 
and disapproval of the BART determinations for PacifiCorp Hunter Unit 1 
and Unit 2, and PacifiCorp Huntington Unit 1 and Unit 2. 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 or that the 
State met the requirements of the RHR or the CAA for which we proposed 
disapproval.

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 consistently submitted 
and specifically directed to the component of the published proposals 
dealing with the submitted SO2 backstop trading program. For 
our organizational purposes, any additional or unique comments found in 
the conservation organization letter that is applicable to this 
proposal (i.e., for the State of Utah) 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 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

[[Page 74358]]

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 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 nine Transport 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 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 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.
    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

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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 
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 (October 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 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, 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

[[Page 74360]]

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 40 CFR 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 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 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

[[Page 74361]]

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 programs are 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 response 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 Utah 
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 
commenters 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 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 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 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

[[Page 74362]]

all known and expected controls as of March 2007. The preliminary 
reasonable progress case (``PRP18b'') used by New Mexico is the more 
updated version produced by the WRAP with all known and expected 
controls as of March 2009. Thus, we are correcting Table 1, column 5 in 
the Wyoming, Utah and Albuquerque of our proposed notices to include 
model results from the PRP18b emission inventory, consistent with the 
New Mexico proposed notice and the fourth column in the table below. We 
are also correcting the description of the Preliminary Reasonable 
Progress Case (referred to as the PRP18b emission inventory and modeled 
projections) to reflect that this emission inventory includes all 
controls ``on the books'' as of March 2009.

----------------------------------------------------------------------------------------------------------------
                                                                             2018 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 Utah 
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 Utah's SIP adequately 
project the improvement in visibility for purposes of Section 309.

B. Legal Issues

    Comment: EPA informally announced in the section 114 request letter 
that it had already decided, before publishing the partial disapproval, 
to reject certain parts of the Utah regional haze SIP.\4\ EPA also 
concluded, before publishing the partial disapproval that Utah had 
improperly failed to submit a five-factor BART analysis for the 
PacifiCorp units as part of the Utah SIP. PacifiCorp believes that 
EPA's actions have prejudiced the process for properly considering the 
issues that EPA raised in the partial disapproval.
---------------------------------------------------------------------------

    \4\ See letter dated October 20, 2011 from Stephen Tuber, 
Assistant Regional Administrator, EPA Region 8, to Cathy Woollums, 
MidAmerican Energy Holdings Company included in the docket.
---------------------------------------------------------------------------

    Response: We disagree with this comment. Contrary to commenter's 
assertions, EPA's October 20, 2011 letter to PacifiCorp ``noted that 
the SIP did not contain analyses for the sources determined by the 
state to be subject-to-BART''. Therefore, the letter did not contain 
EPA conclusions, we requested the information from PacifiCorp, as 
explained in the letter relying on our authority under section 114(a) 
of the CAA to assist in ``the development of, or in reviewing, a 
regional haze SIP,'' in developing a Federal Implementation Plan (FIP), 
or ``in carrying out the other responsibilities or actions under the 
CAA''.
1. EPA Authority
    Comment: We received comments that courts have consistently held 
that states are primarily responsible for SIP development and that 
EPA's role is ministerial. One commenter went on to point out that 
recently, the Fifth Circuit Court of Appeals described the federal and 
state roles: ``The [Clean Air] Act assigns responsibility to the EPA 
for identifying air pollutants and establishing National Ambient Air 
Quality Standards (NAAQS). 42 U.S.C. 7408-7409. The states, by 
contrast, bear the primary responsibility for implementing those 
standards * * *. To implement the NAAQS, the states must adopt and 
administer State Implementation Plans (SIPs) that meet certain 
statutory criteria. Sec.  7410. The states have wide discretion in 
formulating their plans.'' Luminant Generation Co. v. EPA, 675 F.3d 
917, 921 (5th Cir. 2012) (citations and quotations omitted); see also 
Train v. Natural Resources Defense Council, 421 U.S. 60, 78 (``Congress 
intended the States to retain [a] significant degree of control over 
the manner in which they attain and maintain national standards.'')
    Commenters asserted that EPA's partial disapproval fails to account 
for the significant discretion granted to Utah under the CAA. 
Commenters pointed out that based on the language in the CAA, the RHR, 
EPA's own guidance, and case law; the states have significant 
discretion when creating their regional haze SIPs, and EPA failed to 
properly account for that discretion in analyzing the Utah regional 
haze SIP.
    Response: Congress crafted the CAA to provide for states to take 
the lead in developing implementation plans, but balanced that decision 
by requiring EPA to review the plans to determine whether a SIP meets 
the requirements of

[[Page 74363]]

the CAA. EPA has the authority to disapprove a SIP if it doesn't meet 
with minimum requirements. Our action today is consistent with the 
statute.
    Our action does not contradict the Supreme Court's decision in 
Train. States have significant responsibilities in implementation of 
the CAA and meeting the requirements of the RHR. We recognize that 
states have the primary responsibility of drafting an implementation 
plan to address the requirements of the CAA Visibility Program. We also 
recognize that we have the responsibility of ensuring that the state 
plans, including RH SIPs, conform to the CAA requirements. We cannot 
approve a RH SIP that fails to address the BART requirements.
    Our action in large part approves the RH SIP submitted by Utah. The 
disapproval is not intended to encroach on state authority. This action 
is only intended to ensure that CAA requirements are satisfied using 
our authority under the CAA.
2. Presumptive Limits
    Comment: We received numerous comments that EPA's proposed 
disapproval of Utah's BART determinations and ``EPA's RH FIP'' is 
improper because the BART units are meeting the presumptive limits in 
the BART guidelines based on the installation of combustion controls. 
Commenters went to assert that the BART Guidelines only require the 
installation of low NOX burners (LNBs) with overfire air 
(OFA) and that EPA determined in the guidelines that SCR was generally 
not cost-effective for BART. One commenter noted that EPA has 
completely ignored the presumptive BART limits in our proposed action 
and that this is contrary to the express requirements in both the RHR 
and the BART Rule. The commenter goes on to say that EPA's attempt to 
completely ignore the presumptive BART limits makes the presumptive 
BART limits meaningless and this is contrary to the requirements of the 
CAA and the clear intent of the BART Rule. Commenters asserted that the 
BART rule on its face, shows that an alternative analysis is required 
only when a source cannot meet the presumptive limits, and that while a 
state may choose to establish a limit that is more stringent than the 
BART limit, there is nothing in the BART rule that would require a 
state to do so.
    Commenters asserted that EPA adopted the presumptive BART limits to 
establish the specific control levels required for EGUs. Commenters 
point out that EPA has not repealed the presumptive limits from the 
promulgated BART rule, but in this action EPA does not acknowledge the 
existence of the presumptive limits, as if the presumptive BART limits 
were no longer a binding regulation. Instead, commenters pointed out 
that EPA focused on the five-factor analysis and ignores the 
presumptive limits. Commenters argued that unless and until EPA goes 
through notice and comment rulemaking to remove the presumptive 
emissions limits and establish other requirements consistent with the 
CAA, then EPA must approve a state's BART determination that meets the 
presumptive regulatory limits.
    One commenter went on to say that as the Utah 2008 regional haze 
SIP explains, ``[t]he technical analysis conducted by EPA to determine 
presumptive BART limits for SO2 and NOX is in 
effect a BART determination analysis for 419 EGUs including Hunter 
Units 1 and 2 and Huntington Units 1 and 2.'' The commenter asserted 
that Utah then followed what EPA had done in developing Appendix Y and 
thus did a five-factor analysis. Because EPA found presumptive BART 
controls for PacifiCorp's Units to be ``cost effective'' and to provide 
a ``substantial degree of visibility improvement,'' the commenter 
stated it is evident that two key elements of the five-factor test are 
met.
    Response: We disagree with the commenters. First, for each source 
subject to BART, the RHR, at 40 CFR 51.308(e)(1)(ii)(A), requires that 
states identify the level of control representing BART after 
considering the factors set out in CAA section 169A(g), as follows: 
``States must identify the best system of continuous emission control 
technology for each source subject to BART taking into account the 
technology available, the costs of compliance, the energy and non-air 
quality environmental impacts of compliance, any pollution control 
equipment in use at the source, the remaining useful life of the 
source, and the degree of visibility improvement that may be expected 
from available control technology.'' 70 FR 39158. In other words, the 
presumptive BART limits do not obviate the need to identify the best 
system of continuous emission control technology on a case-by-case 
basis considering the five factors. A state may not simply ``stop'' its 
evaluation of potential control levels at a slightly lower limit than 
the presumptive level of control if more stringent control technologies 
or limits are technically feasible. We do not read the BART guidelines 
in appendix Y to contradict the requirement in our regulations to 
determine ``the degree of reduction achievable through the application 
of the best system of continuous emission reduction'' ``on a case-by-
case basis,'' considering the five factors. 40 CFR 51.301 (definition 
of Best Available Retrofit Technology); 40 CFR 51.308(e).
    Also, our position is supported by the following language in our 
BART guidelines: ``While these levels may represent current control 
capabilities, we expect that scrubber technology will continue to 
improve and control costs continue to decline. You should be sure to 
consider the level of control that is currently best achievable at the 
time that you are conducting your BART analysis.'' 70 FR 39171.
    While the presumptive limits are meaningful as indicating a level 
of control that EPA generally considered achievable and cost effective 
at the time it adopted the BART guidelines in 2005, mere consideration 
of the presumptive limits does not eliminate the state's obligation to 
consider each of the five statutory factors in section 169A. As we 
wrote in our proposal, ``[t]he presumptive limits accordingly are the 
starting point in a BART determination * * * unless the state 
determines that the general assumptions underlying EPA's analysis are 
not applicable in a particular case.'' 77 FR 28841. Nothing in the 
State's record supports such a conclusion. Finally, our proposed notice 
did not contain a FIP.
3. Compliance With the Requirements of 40 CFR 51.308
    Comment: In its proposed partial disapproval, EPA stated that 
``neither the State nor PacifiCorp have completed a BART analysis that 
considers the statutory factors under 40 CFR 51.308(e)(1)(ii)(A),'' and 
that the requirement to conduct this analysis ``is found in section 
51.308(e)(1)(ii)(A) of the RHR,'' However, as set forth below, EPA's 
reliance upon section 51.308 is misplaced.
    EPA's RHR provides two regulatory paths to address regional haze. 
By meeting the requirements under 40 CFR 51.309, states are making 
reasonable progress toward the national goal of achieving natural 
visibility conditions for the 16 Class I areas on the Colorado Plateau. 
Utah submitted its regional haze SIP under section 51.309. Therefore, 
the requirements of section 51.308 only apply to the extent required by 
section 51.309.
    Importantly, PM and NOX emissions and controls under 
section 51.309 are treated differently than PM and NOX 
emissions and controls under section 51.308, primarily because these 
emissions have a significantly smaller impact on visibility on the 
Colorado Plateau. WRAP has estimated ``that

[[Page 74364]]

stationary source emissions of PM probably cause less than 2 percent of 
the region's visibility impairment, whereas stationary source 
NOX emissions result in nitrates that probably cause about 2 
to 5 percent of the impairment on the Colorado Plateau.'' See 
``Stationary Source NOX and PM Emissions in the WRAP Region: 
An Initial Assessment of Emissions, Controls, and Air Quality 
Impacts,'' October 1, 2003, at 1--3.13. Several illustrations in the 
WRAP NOX report show that nitrate emissions have very little 
impact on Class I areas in or near Utah and Wyoming. The WRAP report 
also explains that ``controls on point source emissions of 
NOX and PM will have a relatively limited effect on 
visibility in much of the West, all else being equal.''
    Section 51.309 understandably is intended to focus on 
SO2 due to the greater visibility impact. Indeed, the GCVTC 
and WRAP focused their efforts primarily on sulfur dioxide emissions 
because the research indicated this pollutant had the greatest impact 
on visibility. The partial disapproval acknowledges that Utah has 
complied with the Section 51.309's SO2 requirements and made 
great progress towards improving and protecting visibility as a result. 
For all of these reasons, section 51.309 takes a different approach to 
PM and NOX emissions than does section 51.308, placing much 
less emphasis on the need for significant reductions in PM and 
NOX emissions and instead focusing almost all attention and 
resources in the western U.S. on reducing SO2 emissions.
    As a result of the lesser emphasis in section 51.309 on PM and 
NOX emissions, section 51.309(d)(4)(vii) states that a 
regional haze SIP ``must contain any necessary long-term strategies and 
BART requirements for stationary source PM and NOX 
emissions.'' Section 51.308, by contrast, does not contain a similar 
``necessary'' threshold for BART. In other words, if a BART requirement 
is not ``necessary'' for a section 51.309 state, such as Utah, to make 
``reasonable progress,'' then it is not required as part of the 
regional haze SIP. EPA's partial disapproval fails to acknowledge the 
importance of the ''necessary'' threshold in its own rules, and fails 
to identify how Utah's BART determinations do not meet this 
``necessary'' threshold.
    Response: We disagree with the comment. As explained in our 
proposed rulemaking for Section 51.309(d)(4)(viii) we explained that 
the provision ``is intended to clarify that if EPA determines that the 
SO2 emission reductions milestones and backstop trading 
program submitted in the Section 51.309 SIP makes greater reasonable 
progress than BART for SO2, this will not constitute a 
determination that BART for PM or NOX is satisfied for any 
sources which would otherwise be subject to BART for those pollutants'' 
(emphasis added). 70 FR 44169 (Aug. 1, 2005). EPA does not interpret 
this statement to mean that there are different BART requirements for 
Section 308 and 308 RH SIPs. EPA's proposed rulemaking made no finding 
that BART determinations conducted for a state submitting a RH SIP 
under Section 51.309 should be conducted any differently than a state 
submitting a RH FIP under only Section 308. The use of the word 
``necessary'' in Section 51.309(d)(4)(viii) was to explain that some 
states may have BART NOx emission limitations, while others may not. As 
already explained elsewhere in our proposal on the Utah SIP and our 
response to other comments, Utah did not conduct a proper evaluation of 
the five statutory factors, as required by 40 CFR 51.308(e)(1)(ii)(A) 
and section 169A(g) of the CAA.
    EPA also disagrees with commenter's assertion that a BART 
submission is discretionary. 30 CFR 51.309(d)(4)(viii) is clear in that 
the implementation plan ``must'' contain BART requirements. The 
proposed regional haze rulemaking explained that the provision that 
provides that ``[a]ny such BART provisions may be submitted pursuant to 
either Sec.  51.308(e)(1) or 51.308(e)(2),'' was included to ``allow 
States the flexibility to address these BART provisions either on a 
source-by-source basis under Section 51.308(e)(1), or through an 
alternative strategy under Section 51.308(e)(2).'' 70 FR 44169 (August 
1, 2005).
    Moreover, EPA's proposed regional haze rule made clear that ``[i]n 
limited circumstances, it may be possible for a State to demonstrate 
that an alternative program which controls only emissions from 
SO2 could achieve greater visibility improvement than 
application of source-specific BART controls on emissions of 
SO2, NOX and/or PM. We nevertheless believe that 
such a showing will be quite difficult to make in most geographic 
areas, given that controls on SO2 emissions alone in most 
cases will result in increased formation of ammonium nitrate 
particles.'' 70 FR 44169 (Aug. 1, 2005). Utah's RH SIP does not include 
a demonstration that the backstop SO2 trading program under 
Section 51.309 achieves greater visibility improvement than application 
of source-specific PM BART controls. Therefore, Utah's Section 51.309 
SIP does not provide the adequate level of visibility improvement to 
meet the BART requirements.
    Comment: Utah was not required to comply with subsection 
51.308(e)(1)(ii)(A) because it had complied with subsection 
51.308(e)(l)(ii)(B). Subsection 51.308(e)(1) provides, ``To address the 
requirements for BART, the State must submit an implementation plan 
containing the following plan elements and include documentation for 
all required analyses.'' One of these elements is a ``determination of 
BART for each BART-eligible source,'' which may be ``based on an 
analysis'' of the five-factor test, Sec.  51.308(e)(1)(ii)(A), or, in 
the case of ``fossil-fuel fired power plants having a total generating 
capacity greater than 750 megawatts,'' ``must be made pursuant to the 
guidelines in appendix Y of this part,'' Sec.  51.308(e)(l)(ii)(B). 
Because Utah's regional haze SIP properly relied on Appendix Y, and 
thus satisfied subsection (B), it was incorrect for EPA to reject 
Utah's analysis as not complying with subsection (A).
    Response: We disagree with this comment. The State must comply at 
all times with the requirements of 40 CFR 51.308(e)(1)(ii)(A). In 
addition, the State must comply with the requirements of 40 CFR 
51.308(e)(1)(ii)(B) for sources that are greater than 750 MW. As we 
have stated in our proposed notice and elsewhere in our response to 
comments, the State did not perform an analysis pursuant to the five 
factors required by the RHR and BART Guidelines, thus the State's SIP 
does not meet the requirements of 40 CFR 51.308(e)(1)(ii)(A) or 40 CFR 
51.308(e)(1)(ii)(B).
4. Utah's Permitting Process
    Comment: EPA is overlooking how Utah's permitting program supports 
the decisions it made in Utah's regional haze SIP. In this instance, 
EPA's comment disregards the review that Utah completed through its new 
source review (NSR) program. That review established the emission 
limits and monitoring, recordkeeping, and reporting (MRR) requirements 
for NOX and PM.
    The notice of intent (NOI) for the pollution control project at 
Huntington Unit 2 was submitted in October 2004 and the approval order 
(AO) was issued in 2005. Because all four BART eligible units are 
essentially identical,\5\ this AO established the requirements that 
were used for all four units. The NOI for the pollution control 
projects at Hunter

[[Page 74365]]

Units 1 and 2 was submitted in June 2006 and the AO was issued in 
April, 2008. The NOI for the pollution control project at Huntington 
Unit 1 was submitted in April 2008 and the AO issued in August 2009.
---------------------------------------------------------------------------

    \5\ The four units are PacifiCorp Hunter Units 1 and 2 and 
Huntington Units 1 and 2.
---------------------------------------------------------------------------

    When BART was evaluated for NOX in the 2008 SIP, Utah 
relied on the technical review that had been completed through the NSR 
program to justify the emission limits and MRR requirements in the AO. 
These limits were then evaluated to determine whether the existing 
controls satisfied the requirement for BART. Utah, in its regional haze 
SIP, determined that the existing controls met the BART requirement, 
and therefore no additional controls were required. It is a complete 
misrepresentation of the extensive process Utah undertook to say that 
the State determined the BART limit without any analysis.
    Response: We disagree with this comment. While Utah may have 
considered BART controls through its NSR permitting program, as we have 
pointed out in our proposed notice and in our responses above, the 
State did not perform the required five-factor BART analysis pursuant 
to 40 CFR 51.308(e)(1).
5. Enforceability of BART Emission Limits
    Comment: The applicable requirements in the AOs for the Hunter and 
Huntington plants have been incorporated into the operating permits for 
these plants under authority of R307-415. The operating permit program 
was designed to ensure that applicable requirements are clear and are 
enforceable. A source that violates one or more enforceable permit 
conditions is subject to an enforcement action including, but not 
limited to, penalties and corrective action. Enforcement actions may be 
initiated by the local permitting authority, EPA or, in many cases, 
through citizen suits.
    Utah's operating permit rule requires detailed monitoring, 
reporting, and recordkeeping (MRR) (see R307-415-6a(3)) to ensure that 
all emission limits are practically enforceable. If MRR provisions are 
changed in the AO, the operating permit rules provide a backstop to 
ensure that appropriate MRR occurs for each emission limit. R307-415-8, 
Permit Review by EPA and Affected States, describes the process by 
which EPA may veto the operating permit: ``If EPA objects to the 
issuance of a permit in writing within 45 days of receipt of the 
proposed permit and all necessary supporting information, then the 
Executive Secretary shall not issue the permit. If the Executive 
Secretary fails, within 90 days after the date of an objection by EPA, 
to revise and submit a proposed permit in response to the objection, 
EPA may issue or deny the permit in accordance with the requirements of 
the Federal program promulgated under Title V of the Act. R307-415-
8(3).''
    In disapproving Utah's regional haze SIP because ``EPA does not 
consider operating permit conditions adequate to meet the MRR and 
enforceability requirement'', EPA is thwarting the purpose of the Title 
V program, as enacted under the 1990 Amendments to the CAA. Taking 
EPA's position would require a SIP revision when an individual source 
desires to make a change to its AO and Title V permit. The drafters of 
the 1990 Amendments thought otherwise: ``The concept behind this new 
[Title V] permit program is to minimize, if not eliminate, the degree 
to which decisions relating to individual major sources require SIP 
actions. Individual source issues should be resolved in the permit 
process, consistent with the SIP. EPA must avoid duplication between 
the SIP and permit processes.'' Utah's rule is consistent with the 
purpose of Title V as enacted in the 1990 Amendments to the CAA and 
with Part 70 rules adopted there under. Moreover, if there are 
inadequate monitoring requirements in a source's Title V permit, the 
State, consistent with 40 CFR 70.6(c)(1), may supplement those 
requirements to rectify the inadequacy. Sierra Club v. EPA, 536 F.3d 
675, 680 (D.C. Cir. 2008).
    EPA is attempting to do through its partial disapproval of Utah's 
SIP what the D.C. Court of Appeals struck down in Sierra Club. After 
reversing course numerous times, in 2006 EPA adopted Part 70 rules 
prohibiting state and local authorities from supplementing inadequate 
monitoring requirements; instead EPA proposed to remedy such 
inadequacies by undertaking a ``programmatic'' strategy. See 71 FR 
75422 (Dec. 15, 2006). At the same time as EPA announced its 
prohibition, it failed to correct monitoring deficiencies in Title V 
permits through a programmatic fix, which resulted in thousands of 
Title V permits containing inadequate monitoring requirements. In 
Sierra Club, the Court held ``if Congress meant that potentially 
thousands of permits could be issued without adequate monitoring 
requirements then it would not have said `each permit shall set forth 
monitoring requirements to assure compliance with the permit terms and 
conditions.'' Sierra Club, 535 F.3d at 678 (citing 42 U.S.C. 7661c(c). 
The Court concluded that permitting authorities may supplement 
inadequate monitoring requirements. Id.
    EPA has ample means of federally enforcing whether the four EGUs in 
Utah either now or in the future abide by adequate MMR requirements 
through EPA's Title V authority and through Utah's other air permitting 
program. EPA should not resort to imposing draconian requirements on 
the State's SIP program and making the State's permit program 
practically unworkable by insisting that MRR requirements be contained 
in the regional haze SIP.
    Response: EPA disagrees with this comment. EPA's approach in this 
action is entirely consistent with section 169A(b)(2) which, as we 
wrote when we promulgated the BART Guidelines, ``provides that EPA must 
require SIPs to contain emission limits, schedules of compliance, and 
other measures as may be necessary to make reasonable progress towards 
meeting the goal'' (emphasis added). 70 FR 39120 (July 6, 2005). The 
regulations require that the states ``must submit an implementation 
plan containing emission limitations representing BART.'' 40 CFR 
51.308(e). The Guidelines require that states ``must establish an 
enforceable emission limit for each subject emission unit at the source 
and for each pollutant subject to review that is emitted from the 
source.'' 70 FR 39172 (July 6, 2005). CAA section 110(a)(2) also 
requires that SIPs shall ``include enforceable emission limitations.''
    Furthermore, Appendix V to 40 CFR part 51 sets forth the minimum 
criteria for determining whether a state implementation plan submitted 
for consideration by EPA is an official submission for purposes of 
review. The Appendix V criteria include ``[e]vidence that the plan 
contains emission limitations, work practice standards and 
recordkeeping/reporting requirements, where necessary, to ensure 
emission levels'' and ``[c]ompliance/enforcement strategies, including 
how compliance will be determined in practice''. Appendix V, Sections 
2.2(g) and (h). Therefore, EPA disagrees that the use of title V 
permits to implement the MRR necessary to ensure compliance with BART 
emission limitations is adequate under the Clean Air Act.
    While the commenter suggests the title V permit program replaces 
SIP requirements, this simply is not the case. In fact, the 
Congressional Report cited by the commenter is clear that while the 
title V permit program provides for ``harmonization'' of the Clean Air 
Act requirements, ``title V does not change, and gives EPA no authority 
to modify, the substantive provisions of these other titles.''

[[Page 74366]]

CONFERENCE REPORT ON--CLEAN AIR ACT AMENDMENTS, 136 Cong. Rec. E3673-
01, 1990 WL 206959.
    Finally, the Sierra Club case cited by the commenter in support of 
its contentions did not involve challenges to SIP monitoring 
requirements and therefore is not applicable here. The commenter's 
claim that title V permits are adequate to meet SIP and regional haze 
statutory and regulatory requirements is unfounded and not supported by 
the case law cited or the CAA.
    Comment: Utah's SIP and the permits that are issued under that plan 
are enforceable under state law and become federally enforceable when 
EPA approves the plan and incorporates it into 40 CFR part 52, Subpart 
TT.
    In addition to a federally enforceable SIP, AOs issued by the State 
are also federally enforceable. AOs become federally enforceable 
through R307-401 Permits: New and Modified Sources, and R307-405 
Permits: Major Sources in Attainment or Unclassified Areas (PSD), when 
those rules are approved by EPA as part of Utah's SIP and codified in 
40 CFR 52.2320 and 40 CFR 52.2346. Region 8's Web site recognizes the 
role that state permits play in the SIP process: ``SIPs contain state 
air regulations that, for example, allow states to permit the 
construction and operation of stationary sources, establish specific 
requirements for categories of stationary sources, and identify open 
burning requirements.''
    AOs issued by the State under authority of R307-401 and R307-405 to 
the Hunter and Huntington plants, including provisions to make the 
pollution control projects enforceable, contain enforceable emission 
limits for NOX and PM, as well as MRR requirements to ensure 
that the emission limits are continuously met. EPA has discretion to 
federally enforce the provisions of these AOs under authority of the 
federally approved Utah SIP. There is no doubt that such AOs are 
federally enforceable, as evidenced by lawsuits brought previously by 
EPA against other sources in Utah.
    Commenters also explain that Utah's NSR program for major and minor 
sources is part of the federally approved SIP. If PacifiCorp seeks to 
relax or modify the emission limitations in the AOs for the Hunter or 
Huntington plants at some point in the future, the company would be 
required to obtain a new AO and apply BACT under either Utah's major 
source (R307-405) or minor source (R307-401) rules. A modification may 
potentially trigger other requirements. As has been evident throughout 
the federal CAA programs that EPA has delegated to Utah, there are 
substantial federally enforceable requirements in the broad air program 
in Utah to ensure that the emission reductions achieved through the 
pollution control projects are maintained (through state or federal 
enforcement if necessary) into the future. If the emission limits in 
the AO were revised in the future, EPA has the opportunity to review 
the changes and provide comments through the NSR process. EPA could 
then veto the operating permit in the unlikely circumstance that the 
emission limits for NOX or PM became less stringent.
    Commenters also suggest that EPA has proposed to disapprove the 
BART determination for NOX and PM in part because EPA 
believes that the emission limits and MRR requirements in the AOs and 
operating permits are not federally enforceable enough. It is not clear 
what additional enforcement action EPA would take due to a violation of 
a SIP condition versus a violation of a permit condition.
    Response: We disagree. See our response above. EPA does not have 
the option of approving a RH SIP where BART emission limits are 
implemented only through construction or operating permits.
    Comment: We received a comment that the BART emission limits must 
be included in the Utah SIP and be fully enforceable and that the 
commenter supported EPA's disapproval of the Utah regional haze SIP 
because it ``does not contain provisions necessary to make BART limits 
practically enforceable as required by section 110(a)(2) of the CAA and 
Appendix V to part 51.'' The commenter went on to say that the BART 
emission limits must be permanent, unalterable, and federally 
enforceable by both EPA and citizens.
    Response: As our proposed notice and responses above indicate, we 
agree with the commenter on the need for the BART emission limits to be 
included in the SIP along with appropriate MRR requirements. Although 
we are not approving any BART determinations in this action, when Utah 
submits revised BART determinations, the State must include provisions 
in the SIP to make the emission limits federally enforceable.

C. Applicability of the BART Guidelines

    Comment: We received comments that EPA made a mistake when it said 
in its proposal that because the PacifiCorp units have a 430 MW 
generating capacity, the State is not required to follow the BART 
Guidelines in making BART determinations for the units. Commenters went 
on to say that applicability of the BART guidelines is determined by 
the total generating capacity of the fossil fuel fired electric 
generating plant, not the size of the individual units. Commenters went 
on to say that the total generating capacity of the two units subject 
to BART at each facility is 960 MW, and as such, the total generating 
capacity of the Hunter and Huntington power plants both exceed the 750 
MW trigger for applicability of the BART guidelines.
    Response: We agree with this comment. EPA erred by stating that the 
State is not required to follow the BART Guidelines in making BART 
determinations for these units. Because of the generating capacity for 
the EGUs is above 750 MW, the State must follow the BART Guidelines 
when making its BART determinations. 70 FR 39158 (July 6, 2005).

D. PM BART

    Comment: We received numerous comments that Utah relied on the BART 
regulations when making its PM BART determinations for these Units. 
Commenters pointed out that EPA acknowledges in the proposed rule, 
``[t]here are no presumptive limits established for PM.'' With there 
being no presumptive limit for PM, commenters state that Utah undertook 
its own analysis and reasonably determined that the PM limit for the 
Hunter and Huntington Units is the current operating permit level of 
0.015.\6\
---------------------------------------------------------------------------

    \6\ In comments from the State, the State recognized that the 
emission rates listed in the SIP for PM for all four BART units of 
0.05 lb/MMBtu were incorrect. The correct limits are 0.015 lb/MMBtu 
(30-day rolling average).
---------------------------------------------------------------------------

    Commenters asserted that because Utah determined that PM BART for 
the Hunter and Huntington units is the installation and operation of 
fabric filter baghouses, which is the most stringent PM control 
technology for EGUs, the State did not have to complete a comprehensive 
five-factor analysis.
    One commenter asserted that EPA's position is in derogation of 
Executive Order 13563. In January 2011, President Obama signed 
Executive Order 13563--Improving Regulation and Regulatory Review. The 
commenter went on to say that the President described the goals of this 
order in an op-ed article published in the Wall Street Journal: ``This 
order requires that federal agencies ensure that regulations protect 
our safety, health and environment while promoting economic growth * * 
*. Where necessary, we won't shy away from addressing obvious gaps: new 
safety rules for infant formula; procedures to stop preventable 
infections in hospitals; efforts to target

[[Page 74367]]

chronic violators of workplace safety laws. But we are also making it 
our mission to root out regulations that conflict, that are not worth 
the cost, or that are just plain dumb * * *. We're also getting rid of 
absurd and unnecessary paperwork requirements that waste time and 
money. We're looking at the system as a whole to make sure we avoid 
excessive, inconsistent and redundant regulation.'' The commenter 
concluded that EPA should recognize that any further analysis of PM is 
``absurd and unnecessary paperwork'' that is irrational, as well as a 
waste of time and money.
    Response: The BART Guidelines state ``[i]f you find that a BART 
source has controls already in place which are the most stringent 
controls available (note that this means that all possible improvements 
to any control devices have been made), then it is not necessary to 
comprehensively complete each following step of the BART analysis in 
this section. As long as these most stringent controls available are 
made federally enforceable for the purpose of implementing BART for 
that source, you may skip the remaining analyses in this section, 
including the visibility analysis in step 5. Likewise, if a source 
commits to a BART determination that consists of the most stringent 
controls available, then there is no need to complete the remaining 
analyses in this section.'' 70 FR 39165 (July 6, 2005). While we agree 
that baghouses may well be the most stringent control equipment for 
controlling PM emissions, the State has not provided a demonstration 
that the BART PM emission limits at the Utah BART sources represent the 
most stringent controls. Thus, it may be possible for the State to 
provide an abbreviated BART determination for PM if it can demonstrate 
that the emission limits represent the most stringent level of control.

E. General Comments on BART

    Comment: EPA is aware that the State of Utah, in cooperation with 
PacifiCorp, currently is conducting another five-factor BART analysis 
for the Units identified in EPA's section 114 request dated October 20, 
2011 (see footnote 4). Until that BART analysis is completed and the 
results are incorporated into the Utah regional haze SIP, there is no 
reason for EPA to continue processing the partial disapproval. 
Therefore, EPA should ``withdraw its FIP''.
    In that way, EPA can focus its resources on the upcoming Utah 
regional haze SIP version that Utah has committed will contain the BART 
analysis information EPA has requested be included. Until then, 
continuing the administrative review process for the partial 
disapproval is a waste of taxpayer funds and other resources.
    Response: We disagree with this comment. We are under a consent 
decree with Wild Earth Guardians to take final action on the Utah 
regional haze SIP by October 31, 2012. Under the consent decree, we 
must either approve or disapprove all the State's regional haze SIP. 
The consent decree does not allow us to delay action in determining 
whether the SIP meets the requirements of the RHR. Furthermore, we had 
a statutory obligation to act on SIPs within 12 months after they have 
been determined to be or deemed complete, and that date has passed. 
Moreover, Utah will not be submitting the additional information 
referenced above until after October 31, 2012, thus EPA is forced to 
take action on the SIP in its entirety. Finally, contrary to 
commenter's assertion, our proposed notice did not contain a FIP.

F. Reasonable Progress

    Comment: We received comments that the Utah SIP fails to comply 
with 40 CFR 51.309(g) or 40 CFR 51.308(d)(1)-(4), which require that 
SIPs address impacts to Class I areas not located on the Colorado 
plateau. Commenters went on to point out that sources in Utah have been 
shown to impact Class I areas outside of the Colorado Plateau.
    Commenters pointed out that under both 40 CFR 51.309(g) and 40 CFR 
51.308(d)(1)-(4), a long-term strategy must include such emission 
limits, schedules of compliance and other measures as may be necessary 
to achieve reasonable progress goals, and that for Class I areas 
outside a state's borders, the State has an obligation to adopt 
controls necessary to ensure it achieves its share of the pollution 
reductions that are required to meet the reasonable progress goals set 
for the subject Class I area. Since the requirements of 40 CFR 
51.308(d)(1)-(4) apply to Utah, commenters assert that EPA must require 
Utah to develop a long-term strategy under 40 CFR 51.308(d)(3).
    Response: We do not agree with this comment. States adopting the 
requirements of 40 CFR 51.309 are deemed to have met the requirements 
for reasonable progress for the Class I areas on the Colorado Plateau. 
40 CFR 51.309(a). For such states, the requirements of 40 CFR 
51.308(d)(1) and (d)(2) only apply to Class I areas within their state 
not on the Colorado Plateau. See 40 CFR 51.309(g)(2); 40 CFR 
51.308(d)(1), (2). All of the Class I areas in Utah are on the Colorado 
Plateau. Therefore, the State met all reasonable progress requirements 
for the Class I areas in Utah.
    With regard to Class I areas in other states, the State must 
satisfy the requirements of 40 CFR 51.308(d)(3). See 40 CFR 
51.309(g)(2). In particular, 40 CFR 51.308(d)(3)(ii) requires that if 
emissions from Utah sources cause or contribute to impairment in 
another state's Class I area, Utah must demonstrate that it has 
included in its regional haze SIP all measures necessary to obtain its 
share of the emission reductions needed to meet the progress goal for 
that Class I area. Section 51.308(d)(3)(ii) also requires that, since 
Utah participated in a regional planning process, it must ensure it has 
included all measures needed to achieve its apportionment of emission 
reduction obligations agreed upon through that process. As we state in 
the RHR, Utah's commitments to participate in WRAP bind it to secure 
emission reductions agreed to as a result of that process.
    Under 40 CFR 51.308(d)(3)(iii), a state must document the technical 
basis on which the state is relying to determine its apportionment of 
emission reduction obligations necessary to achieve reasonable progress 
in each mandatory Class I area the state affects. States may rely on 
technical analyses developed by regional planning organizations and 
approved by all state participants. Utah analyzed the WRAP modeling and 
inventories and determined that emissions from the State do not 
significantly impact or will not significantly impact other states' 
Class I areas. The State's analysis is summarized below and included in 
Section XX.K of the SIP. Inventories developed by the WRAP show a 
significant decrease in stationary source NOX and 
SO2 emissions. The urban area in northern Utah that may 
impact Class I areas in Idaho, Nevada and Wyoming will have a 
significant reduction in NOX emissions from mobile sources 
as described in Section XX.F of the State's SIP. The State SIP shows 
that the contribution to nitrate on the 20% worst days from sources in 
Utah decreases substantially between 2002-2018 at Craters of the Moon 
in Idaho, Bridger and Fitzpatrick Wilderness Areas in Wyoming, and 
Jarbidge Wilderness Area in Nevada. The contribution to sulfates is not 
significant at any of the sites.
    As described in Section XX.D.6 of the State's SIP plan, two BART-
eligible plants in central Utah are projected to decrease 
SO2 emissions by 13,200 tons and NOX emissions by 
6,200 tons between 2002 and 2018. The State also

[[Page 74368]]

shows that in general the impact from sources in Utah is not 
significant at La Garita Wilderness Area and Great Sand Dunes National 
Monument in Colorado, Bandelier National Monument in New Mexico and 
Mazatal and Pine Mountain Wilderness Areas in Arizona.
    Utah accepted and incorporated the WRAP-developed visibility 
modeling into its regional haze SIP, and the State's regional haze SIP 
includes the controls assumed in the modeling. Utah satisfied the RHR's 
requirements and included controls in the SIP sufficient to address the 
relevant requirements of the RHR related to impacts on Class I areas in 
other states.
    Comment: We received a comment that Utah still must comply with 
reasonable progress requirements to address visibility impairment 
attributable to Utah sources of NOX and PM with respect to 
all affected Class I areas including the 16 Class I areas within the 
Colorado Plateau, and that Utah first must establish reasonable 
progress goals for all Utah Class I areas.
    Response: We do not agree with this comment. Pursuant to 40 CFR 
51.309(a), if a state adopts the requirements under 40 CFR 51.309 it 
will be deemed to comply with the requirements for reasonable progress 
with respect to the Colorado Plateau Class I areas through 2018. As 
stated above, all of the Class I areas in Utah are on the Colorado 
Plateau, so Utah does not have to separately establish reasonable 
progress goals for them. As explained above, Utah has also met the 
requirements for Class I areas outside the state.
    Comment: We received a comment from the NPS that, under 40 CFR 
51.309(g), Utah should have developed a long-term strategy that 
evaluated NOX, PM, and SO2 controls on large non-
BART stationary sources of emissions such as PacifiCorp Hunter Unit 3 
to meet reasonable progress requirements with respect to non-Colorado 
Plateau Class I areas. In particular, the NPS cited our notice 
proposing action on the Utah regional haze SIP. The NPS also referenced 
modeling results to argue that NOX emissions from certain 
non-BART stationary sources cause or contribute to visibility 
impairment at both Capitol Reef NP and at certain Class I areas outside 
Utah and off the Colorado Plateau. The NPS states that emission 
controls should be considered for these sources in order to meet 
reasonable progress requirements.
    Response: We do not agree with these comments. As explained above, 
with respect to in-state Class I areas, our approval of the Utah SIP 
deems it as meeting reasonable progress requirements for the in-state 
Class I areas, as they are all on the Colorado Plateau. With respect to 
non-Colorado Plateau Class I areas, in this case 40 CFR 51.309(g) does 
not impose any separate obligations on Utah to analyze or impose 
emissions controls on non-BART sources to demonstrate reasonable 
progress at such areas. Instead, at most, Utah must show that it has 
included all measures needed to achieve its apportionment of emission 
reduction obligations agreed upon through the WRAP process. See 40 CFR 
51.308(d)(3)(ii). As discussed above, Utah has met that requirement, 
and the commenter has not provided any information to the contrary.

G. Clean Air Corridors (CACs)

    Comment: Approximately 75% of Utah is located in a CAC. Utah has a 
legal duty to protect that CAC from new sources of air pollution both 
inside and outside of CACs. Specifically, Utah must identify 
significant emissions growth that ``could begin'' to impair visibility 
within any CAC and include ``an analysis of the effects of increased 
emissions, including provisions for the identification of the need for 
additional emission reductions measures, and implementation of the 
additional measures where necessary.''
    Utah's regional haze SIP fails to identify several new and proposed 
significant air pollution sources that ``could begin'' to adversely 
impact visibility in the Utah CAC and nearby Class I areas. For 
example, the Alton coal mine in southern Utah is located within the CAC 
and may adversely impact visibility in the corridor and in nearby Class 
I areas, such as Zion National Park. The Alton coal mine will emit 
visibility-impairing emissions, including SO2, 
NOX and PM. In addition, the Viresco coal gasification 
facility has been proposed for the City of Kanab. The Viresco coal 
gasification plant will burn coal from the Alton coal mine. Kanab is 
very close to Zion National Park and is also located inside Utah's CAC. 
A local citizen organization has requested that the State require an 
approval order regulating emissions from the Viresco coal plant. To 
date, the State has refused to regulate the Viresco coal gasification 
plant and failed to impose any air pollution limitations or controls on 
the plant. The EPA should require Utah to regulate the Viresco coal 
plant to limit emissions from the plant in order to protect CACs in 
Utah, as well as Class I areas.
    Finally, the Deseret Power Electric Cooperative has proposed to add 
an additional coal-fired electric generating unit to the Bonanza plant 
in northeast Utah. This plant would be located outside of Utah's CAC, 
but has the potential to adversely impact visibility in the corridor 
and in neighboring Class I areas.
    EPA may not approve the Utah regional haze SIP until the State 
identifies all potential sources of pollution; assesses the impact of 
these sources on visibility in CACs; and imposes air pollution control 
equipment and emission limitations on such sources consistent with 40 
CFR 51.309(d)(3)(iii)-(iv).
    Response: We disagree with this comment. Utah relied on the WRAP's 
Policy on Clean Air Corridors to determine if emissions within or 
outside of the CAC that could impair visibility within the CAC. The 
report concluded: ``[p]]ursuant to 40 CFR 51.309(d)(3)(ii), the WRAP 
has examined patterns of growth in the corridor and finds that they are 
not causing significant emission increases that could have or are 
having visibility impacts at one or more of the 16 Class I areas. Nor, 
at this time, are such emission increases expected during the first 
planning period (2003-2018). Analyses performed by the Grand Canyon 
Visibility Transport Commission found that an increase of 25% in 
weighted emissions would result in a 0.7 dv reduction in visibility, 
whereas the weighted emission increase expected by 2018 is only 4%. 
Pursuant to 40 CFR 51.309(d)(3)(iii), the WRAP has examined emissions 
growth in areas outside the corridor and finds that significant 
emissions growth is not occurring that could begin or is beginning to 
impair the quality of the air in the corridor and thereby lead to 
visibility degradation for the least impaired days in one or more of 
the 16 Class I areas.''
    In addition, Utah is using a comprehensive emissions tracking 
system established by WRAP to track emissions within portions of 
Oregon, Idaho, Nevada and Utah that have been identified as part of the 
CAC. The emission tracking system ensures that visibility does not 
degrade on the least-impaired days in any of the 16 Class I areas of 
the Colorado Plateau. If the emissions tracking system identifies 
emissions in or outside of the CAC that are causing visibility 
impairment, the State will be required to address these emissions in 
accordance with 40 CFR 51.309(d)(3) in the periodic plan revisions that 
the State is required to submit in 2013 and 2018. Therefore, should any 
of the project emissions highlighted in the comment degrade visibility 
on the least-impaired days in any of the 16 Class I areas, the State 
will be required to address those impacts.

[[Page 74369]]

H. General SIP Comments

    Comment: Utah's technical arguments supporting a weak regional haze 
program should be rejected. The State has prepared a Powerpoint 
presentation arguing that its weak and illegal regional haze program 
should be approved by EPA. In support of Utah's weak BART 
determinations the State argues: 1) that NOX reductions are 
not creating expected visibility improvements; and, 2) that wintertime 
visibility problems should be ignored due to lower tourist visits in 
Utah's national parks.
    Response: We note the commenter's concerns regarding consideration 
of these two factors. These two factors are outside the scope of the RH 
regulation and were not considered by EPA in its proposed partial 
approval and partial disapproval of the State's BART determinations. As 
discussed in detail elsewhere in this action, EPA finds that the 
State's trading program meets the regulatory requirements.
    Comment: The State supports EPA's proposed approval of the 
projected visibility improvement in Part K of the Utah SIP. 77 FR 
28833-34. As EPA has noted, the modeling results show projected 
visibility improvement for the best 20% days and no degradation for the 
20% best days at the 16 Class I areas on the Colorado Plateau. In fact, 
the projected improvement is greater than described in EPA's proposed 
approval. The visibility results in Table 24 of Utah's SIP were adopted 
in 2008 based on the PRP18a modeling that was the most current modeling 
available at the time, not PRP18b as described in EPA's proposal. Table 
1 shows the additional improvement shown by the WRAP's PRP18b modeling.
    Response: We recognize the commenter's support of our proposed 
approval of the projected visibility improvement.
    Comment: The GCVTC evaluated haze at Class I Areas on the Colorado 
Plateau, and determined that stationary source reductions should be 
focused on sulfur dioxide because this is the pollutant that has the 
most significant impact on haze. Utah's BART determination was 
developed within the context of the overall SIP and reflected this 
focus on SO2. The sulfate impact is much more significant 
than the nitrate impact, especially on the middle and best 20% days. 
Fire (organic carbon) is the second most significant component on the 
worst days). In addition, sulfate is a problem year round, while the 
nitrate impact is most significant during the winter months when 
visitation is low at Utah's national parks. PacifiCorp has already made 
significant reductions in NOX at the Hunter and Huntington 
plants. The nitrate component of haze in Class I areas on the Colorado 
Plateau does not justify going beyond the presumptive BART level for 
NOX established in EPA's BART rule.
    Response: We do not agree with this comment. States are required to 
meet the requirements of 40 CFR 51.308(e)(1) and do a BART 
determination on a source-by-source basis in accordance with the BART 
Guidelines for EGUs over 750 MW. A regional scale modeling exercise 
does not obviate the requirement that the state perform such an 
analysis and that ``States must identify the best system of continuous 
emission control technology for each source subject to BART * * *'' 70 
FR 39158.
    Comment: We received 1,873 comments from members of National Parks 
and Conservation Association generally supportive of our disapproval 
and encouraging strict controls on the BART units. We also received 
comments from the general public and medical community generally in 
support of our action.
    Response: We note the commenters' support of our proposed action.

I. Additional Comments Pertaining to BART

    We are not responding to the following comments on BART that 
pertain to cost effectiveness, control effectiveness, visibility 
improvement, and other factors. We are not responding because we are 
disapproving the State's BART determinations and will consider such 
comments when we take proposed action on BART determinations for the 
four Utah subject to BART EGUs. The following is a summary of the 
comments:
    (1) Numerous retrofit technologies are available for the control of 
NOX from Hunter and Huntington Units 1 and 2. The suite of 
available retrofit control technologies for NOX control from 
coal boilers similar to these units is well known, and includes: 
selective catalytic reduction (SCR), LNBs, and separated overfire air 
(SOFA).
    (2) SCR is technically feasible for all the units.
    (3) SCR is a highly effective control technology that can achieve 
90% reductions or higher and meet limits of 0.05 lbs/MMBtu or lower.
    (4) The costs of SCR along with upgraded LNBs and SOFA at Hunter 
Units 1 and 2 and Huntington Units 1 and 2 are reasonable. The 
commenter estimated that costs for LNBs with SOFA and SCR at a 
NOX rate of 0.05 lb/MMBtu range from $1,700-$2,000/ton in 
2010 dollars.
    (5) The commenter went on to describe the methodology that they 
used to come to their cost effectiveness conclusions: ``[t]oo [sic] 
summarize, we calculated cost effectiveness of NOX controls 
at Hunter Units 1 and 2 and Huntington Units 1 and 2 as follows. Based 
on the Sargent & Lundy SCR IPM Cost Module modified to be consistent 
with the Control Cost Manual methodology and to be more realistic of 
the costs for these units, as discussed above, we estimated the capital 
and O&M costs of SCR at Hunter Units 1 and 2 and Huntington Units 1 and 
2. Costs were estimated in 2010 dollars. We estimated the capital and 
O&M costs of new LNBs and SOFA based on the cost estimates for the same 
controls provided by PacifiCorp to Wyoming DEQ for the similar but 
somewhat larger Jim Bridger Unit 1. We converted those costs to 2010 
dollars so that these NOX controls could be readily compared 
to the SCR controls and so we could evaluate the cost effectiveness of 
the combination of LNBs/SOFA plus SCR at the Hunter and Huntington BART 
units. Annualized capital costs were based on the real cost of capital 
to PacifiCorp and a 20-year life of the pollution controls. Cost 
effectiveness was based on the total annual costs (annualized capital + 
annual O&M) divided by the tons per year NOX emissions 
reductions expected from the average baseline emissions over 2002-2004. 
The assumed controlled NOX emission rates were 0.26 lb/MMBtu 
for LNBs/SOFA and 0.05 lb/MMBtu for LNBs/SOFA plus SCR.''
    (6) A proper NOX BART determination for Hunter Units 1 
and 2 and Huntington Units 1 and 2 must be based on a baseline period 
from the 2001 to 2004 timeframe. This timeframe also reflects emissions 
prior to any NOX upgrades that have already been completed 
at the Hunter and Huntington units.
    (7) According to the Utah regional haze plan, PacifiCorp has 
received permits to install new LNBs and two elevations of SOFA. 
Because these upgrades were intended to meet presumed regional haze 
requirements, these upgrades should be considered in a NOX 
BART analysis as part of the suite of controls to meet NOX 
BART requirements.
    (8) The energy and non-air quality environmental impacts of SCR are 
standard, limited, and can be mitigated. In addition to monetary costs, 
SCR typically has several associated impacts that may be noted in a 
BART analysis, including increased auxiliary power requirements, waste 
associated with catalyst replacement and disposal,

[[Page 74370]]

ammonia slip, and the partial conversion of SO2 to sulfuric 
acid. The scope of these collateral impacts is nowhere near the scale 
that would outweigh the benefits provided by SCR. Thus, there are no 
energy or non-air quality environmental impacts that would preclude the 
application of SCR at these units.
    (9) The visibility benefit of applying SCR and LNB/SOFA will likely 
be significant. A complete BART analysis also evaluates the projected 
visibility benefits associated with the implementation of the discussed 
controls. Utah did not provide any modeling analyses in the Utah 
regional haze plan that evaluated NOX BART options. Utah did 
include data on the results of the modeling to determine which units 
were subject to BART in its regional haze plan, and the results show 
that each unit has significant impacts in all of the Class I areas 
located within 300 km of each unit, including Capitol Reef, 
Canyonlands, Bryce Canyon, Zion, Grand Canyon, and Black Canyon of the 
Gunnison National Parks as well as Mesa Verde National Monument.
    However, the subject-to BART modeling results provided in the Utah 
regional haze plan very likely understate the true baseline case 
visibility impacts of these units because the SO2 emission 
rates modeled are much lower than the maximum 24-hour pound per hour 
SO2 emission rates based on actual emissions data submitted 
by PacifiCorp to EPA's Clean Air Markets Database.
    (10) Lower PM limits are achievable and appropriate. EPA must 
revise PM emission limits for Hunter Units 1 and 2 and Huntington Units 
1 and 2 to reflect PM emission rates achievable with BART. We note that 
Utah's proposed PM BART limits are unclear. Utah's SIP submittal to EPA 
described (presumably filterable) PM limits of 0.05 lbs/MMBtu, which is 
echoed by EPA in its proposal. However, the underlying administrative 
orders appear to require this limit only until the LNBs, baghouse, and 
wet FGD are installed, at which point it drops to a limit of 0.015 lbs/
MMBtu. Further, EPA's proposal states that this is a rolling 30-day 
limit, where the administrative orders specify stack testing once per 
year. At a minimum, EPA must establish PM BART limits that reflect the 
most stringent level of control that the existing and proposed 
baghouses are capable of, and must account for the different types of 
particulate matter that are emitted.
    Consideration should be given to the following permit limits, which 
demonstrate achievable limits at or below 0.015 lbs/MMBtu. Three 
prevention of significant deterioration (PSD) permits have been issued 
with total PM10 limits of 0.010 lb/MMBtu based on 
installation of a fabric filter baghouse, including for Plant 
Washington, Longleaf, and Desert Rock. A PSD permit issued to the 
Intermountain Power Services Corporation sets BACT emissions limits of 
0.013 lb/MMBtu for filterable PM and 0.012 lb/MMBtu for filterable 
PM10. Similarly, a permit issued for the Comanche Generating 
Station Unit 3 in Colorado included BACT limits of 0.013 lb/MMBtu for 
filterable PM and 0.012 lb/MMBtu for filterable PM10.
    There is no reason that the Utah units could not achieve PM 
emission rates comparable to a new unit with a properly designed and 
operated baghouse. Other states have made low PM BART determinations as 
well. For example, U.S. EPA Region 9 adopted BART filterable 
particulate limits for the Four Corners power plant, Navajo Nation at 
Units 1-3 of 0.012 lb/MMBtu for each unit and at Units 4 and 5, 0.015 
lb/MMBtu. South Dakota adopted and EPA approved as BART for the Big 
Stone power plant a PM limit of 0.012 lb/MMBtu, applicable at all times 
including startup, shutdown, and malfunction.
    Further, at the baghouses that are already installed, the limits 
should also be informed by the existing emissions, as determined by 
appropriate stack testing or CEMS. According to the available permits, 
this testing should already be completed and available for at least two 
units.
    For any unit that has not yet installed a baghouse, an important 
option to consider in BART particulate matter analyses is the selection 
of filtration media. The filtration media determines the control 
efficiency of a baghouse for very small particles, which makes the 
largest contribution visibility. As both PM10 and 
PM2.5 are regulated as BART pollutants, it is important to 
select a filtration media that optimizes the removal of these two 
fractions. There is a wide range of media that can be used, most of 
which are much more efficient for larger particles than smaller 
particles.
    Finally, at all units, methods to remove the condensable 
particulate matter, a major contributor to PM2.5 and 
visibility impairment, should be considered. The primary condensable 
particulate matter removal devices are SO2 scrubbers and wet 
electrostatic precipitators (WESPs). These have an achievable level of 
99.99% PM control. A WESP could be installed either as a conversion of 
the outlet field of the existing electrostatic precipitator as a 
separate housing downstream of the primary electrostatic precipitator, 
or integrated into the scrubber, if one is present. The WESP would 
enhance the removal of both filterable PM2.5 and 
condensables.
    (11) EPA must evaluate BART for all PM. BART requires the 
evaluation of control technology for filterable PM10 and 
PM2.5 as well as condensable particulate matter. Because 
these sources are subject to BART for particulate matter, BART limits 
for both PM10 and PM2.5, including condensables, 
should be developed.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under Executive Orders 12866 and 13563 
(76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Burden is defined at 5 CFR 1320.3(b).

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's final rule on 
small entities, small entity is defined as: (1) A small business as 
defined by the Small Business Administration's (SBA) regulations at 13 
CFR 121.201; (2) a small governmental jurisdiction that is a government 
of a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of today's final rule on 
small entities, I certify that this action will not

[[Page 74371]]

have a significant economic impact on a substantial number of small 
entities. This final rule will not impose any requirements on small 
entities because small entities are not subject to the requirements of 
this rule. We continue to be interested in the potential impacts of the 
final rule on small entities and welcome comments on issues related to 
such impacts.

D. Unfunded Mandates Reform Act (UMRA)

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for federal agencies to assess the 
effects of their regulatory actions on State, local, and Tribal 
governments and the private sector. Under section 202 of UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and Tribal governments, in 
the aggregate, or to the private sector, of $100 million or more 
(adjusted for inflation) in any one year. Before promulgating an EPA 
rule for which a written statement is needed, section 205 of UMRA 
generally requires EPA to identify and consider a reasonable number of 
regulatory alternatives and adopt the least costly, most cost-
effective, or least burdensome alternative that achieves the objectives 
of the rule. The provisions of section 205 of UMRA do not apply when 
they are inconsistent with applicable law. Moreover, section 205 of 
UMRA allows EPA to adopt an alternative other than the least costly, 
most cost-effective, or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including Tribal governments, it must have developed under 
section 203 of UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    Under Title II of UMRA, EPA has determined that this final rule 
does not contain a federal mandate that may result in expenditures that 
exceed the inflation-adjusted UMRA threshold of $100 million by State, 
local, or Tribal governments or the private sector in any one year. In 
addition, this final rule does not contain a significant federal 
intergovernmental mandate as described by section 203 of UMRA nor does 
it contain any regulatory requirements that might significantly or 
uniquely affect small governments.

E. Executive Order 13132: Federalism

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612 (Federalism) and 12875 (Enhancing the 
Intergovernmental Partnership). Executive Order 13132 requires EPA to 
develop an accountable process to ensure ``meaningful and timely input 
by State and local officials in the development of regulatory policies 
that have federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.'' Under Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law unless the 
Agency consults with State and local officials early in the process of 
developing the proposed regulation.
    This rule will not have substantial direct effects on the States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government, as specified in Executive Order 13132, because it 
merely addresses the State not fully meeting its obligation to prohibit 
emissions from interfering with other States measures to protect 
visibility established in the CAA. Thus, Executive Order 13132 does not 
apply to this action.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled Consultation and Coordination with 
Indian Tribal Governments (65 FR 67249, November 9, 2000), requires EPA 
to develop an accountable process to ensure ``meaningful and timely 
input by tribal officials in the development of regulatory policies 
that have tribal implications.'' This final rule does not have tribal 
implications, as specified in Executive Order 13175. It will not have 
substantial direct effects on tribal governments. Thus, Executive Order 
13175 does not apply to this rule.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying 
only to those regulatory actions that concern health or safety risks, 
such that the analysis required under section 5-501 of the EO has the 
potential to influence the regulation. This action is not subject to EO 
13045 because it implements specific standards established by Congress 
in statutes. However, to the extent this rule will limit emissions of 
NOX, SO2, and PM, the rule will have a beneficial 
effect on children's health by reducing air pollution.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 (66 FR 28355 
(May 22, 2001)), because it is not a significant regulatory action 
under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    This final rulemaking does not involve technical standards. 
Therefore, EPA is not considering the use of any voluntary consensus 
standards.

[[Page 74372]]

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994), establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    We have determined that this final action will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it increases the 
level of environmental protection for all affected populations without 
having any disproportionately high and adverse human health or 
environmental effects on any population, including any minority or low-
income population.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, does not 
apply because this action is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

List of Subjects in 40 CFR Part 52

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

    Dated: October 30, 2012.
Howard M. Cantor,
Acting Regional Administrator, Region 8.

    For the reasons stated in the preamble, 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 TT--Utah

0
2. Section 52.2320 is amended by adding paragraph (c)(71) to read as 
follows:


Sec.  52.2320  Identification of plan.

* * * * *
    (c) * * *
    (71) On May 26, 2011 and September 29, 2011, the State of Utah 
submitted revisions to its State Implementation Plan to incorporate the 
requirements of the regional haze program.
    (i) Incorporation by reference
    (A) Title R307 of the Utah Administrative Code--Environmental 
Quality, Air Quality, Rule R307-150--Emission Inventories, sections -1, 
Purpose and General Requirements, -2, Definitions, -3, Applicability, -
5, Sources Identified in R307-150(3)(2), Large Major Source Inventory 
Requirements, -6, Sources Identified in R307-150-3(3), -7, Sources 
Identified in R307-150-3(4), Other Part 70 Sources, and -8, Exempted 
Hazardous Air Pollutants. Effective December 31, 2003; as published in 
the Utah State Bulletin December 1, 2003 and January 15, 2004.
    (B) Title R307 of the Utah Administrative Code--Environmental 
Quality, Air Quality, Rule R307-150--Emission Inventories, section -4, 
Sulfur Dioxide Milestone Emission Inventory Requirements. Effective 
September 4, 2008; as published in the Utah State Bulletin July 1, 2008 
and October 1, 2008.
    (C) Title R307 of the Utah Administrative Code--Environmental 
Quality, Air Quality, Rule R307-250--Western Backstop Sulfur Dioxide 
Trading Program, sections -1, Purpose, -3, WEB Trading Program Trigger, 
-10, Allowance Transfers, -11, Use of Allowances from a Previous Year, 
and -13, Special Penalty Provisions for the 2018 Milestone. Effective 
December 31, 2003; as published in the Utah State Bulletin December 1, 
2003 and January 15, 2004.
    (D) Title R307 of the Utah Administrative Code--Environmental 
Quality, Air Quality, Rule R307-250--Western Backstop Sulfur Dioxide 
Trading Program, sections -2, Definitions, -4, WEB Trading Program 
Applicability, -5, Account Representative for WEB Sources, -6, 
Registration, -7, Allowance Allocations, -8, Establishment of Accounts, 
-9, Monitoring, Recordkeeping, and Reporting, and -12, Compliance. 
Effective November 10, 2008; as published in the Utah State Bulletin 
October 1, 2008 and December 1, 2008.
    (ii) Additional materials
    (A) Section XX of the Utah Regional Haze State Implementation Plan. 
Effective April 7, 2011. Published in the Utah State Bulletin February 
1, 2011.

[FR Doc. 2012-29406 Filed 12-13-12; 8:45 am]
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