[Federal Register Volume 77, Number 62 (Friday, March 30, 2012)]
[Rules and Regulations]
[Pages 19098-19109]
[FR Doc No: 2012-7575]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2009-0783; FRL-9653-8]

Approval and Promulgation of Implementation Plans; Commonwealth
of Kentucky; Regional Haze State Implementation Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing a limited approval and a limited disapproval
of two revisions to the Kentucky state implementation plan (SIP)
submitted by the Commonwealth of Kentucky through the Kentucky Energy
and Environment Cabinet, Division of Air Quality (KYDAQ), on June 25,
2008, and May 28, 2010. Kentucky's June 25, 2008, and May 28, 2010, SIP
revisions address regional haze for the first implementation period.
Specifically, these revisions address the requirements of the Clean Air
Act (CAA or Act) and EPA's rules that require states to prevent any
future and remedy any existing anthropogenic impairment of visibility
in mandatory Class I areas (national parks and wilderness 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 finalizing a limited approval of Kentucky's June 25,
2008, and May 28, 2010, SIP revisions to implement the regional haze
requirements for Kentucky on the basis that these revisions, as a
whole, strengthen the Kentucky SIP. Also in this action, EPA is
finalizing a limited disapproval of these same SIP revisions because of
the deficiencies in the Commonwealth's regional haze SIP revisions
arising from the remand by the U.S. Court of Appeals for the District
of Columbia Circuit (D.C. Circuit) to EPA of the Clean Air Interstate
Rule (CAIR).

DATES: Effective Date: This rule will be effective April 30, 2012.

ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R04-OAR-2009-0783. All documents in the docket
are listed on the www.regulations.gov Web site. Although listed in the
index, some information is not publicly available, i.e., Confidential
Business Information or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically through www.regulations.gov or in hard
copy at the Regulatory Development Section, Air Planning Branch, Air,
Pesticides and Toxics Management Division, U.S. Environmental
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia
30303-8960. EPA requests that if at all possible, you contact the
person listed in the FOR FURTHER INFORMATION CONTACT section for
further information. The Regional Office's official hours of business
are Monday through Friday, 8:30 to 4:30, excluding federal holidays.

FOR FURTHER INFORMATION CONTACT: Michele Notarianni, Regulatory
Development Section, Air Planning Branch, Air, Pesticides and Toxics
Management Division, U.S. Environmental Protection Agency, Region 4, 61
Forsyth Street SW., Atlanta, Georgia 30303-8960. Michele Notarianni can
be reached at telephone number<PHONE_NUMBER> and by electronic mail at
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Table of Contents

I. What is the background for this final action?
II. What is EPA's response to comments received on this action?
III. What is the effect of this final action?
IV. Final Action
V. Statutory and Executive Order Reviews

I. What is the background for this final action?

    Regional haze is visibility impairment that is produced by a
multitude of sources and activities which are located across a broad
geographic area and emit fine particles (e.g., sulfates, nitrates,
organic carbon, elemental carbon, and soil dust), and their precursors
(e.g., sulfur dioxide (SO2), nitrogen oxides
(NOX), and in some cases, ammonia and volatile organic
compounds (VOC)). Fine particle precursors react in the atmosphere to
form fine particulate matter (PM2.5) which impairs
visibility by scattering and absorbing light. Visibility impairment
reduces the clarity, color, and visible distance that one can see.
PM2.5 can also cause serious health effects and mortality in
humans and contributes to environmental effects such as acid deposition
and eutrophication.
    In section 169A of the 1977 Amendments to the CAA, Congress created
a program for protecting visibility in the nation's national parks and
wilderness areas. This section of the CAA establishes the ``prevention
of any future, and the remedying of any existing, impairment of
visibility in mandatory Class I areas which impairment results from
manmade air pollution'' as a national goal. On December 2, 1980, EPA
promulgated regulations to address visibility impairment in Class I
areas that is ``reasonably attributable'' to a single source or small
group of sources, i.e., ``reasonably attributable visibility
impairment.'' See 45 FR 80084. These regulations represented the first
phase in addressing visibility impairment. EPA deferred action on
regional haze

that emanates from a variety of sources until monitoring, modeling, and
scientific knowledge about the relationships between pollutants and
visibility impairment were improved.
    Congress added section 169B to the CAA in 1990 to address regional
haze issues. EPA promulgated a rule to address regional haze on July 1,
1999 (64 FR 35713), the Regional Haze Rule (RHR). The RHR revised the
existing visibility regulations to integrate into the regulation
provisions addressing regional haze impairment and established a
comprehensive visibility protection program for Class I areas. The
requirements for regional haze, found at 40 CFR 51.308 and 51.309, are
included in EPA's 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. 40 CFR
51.308(b) requires states to submit the first implementation plan
addressing regional haze visibility impairment no later than December
17, 2007.
    On June 25, 2008, and May 28, 2010, KYDAQ submitted revisions to
Kentucky's SIP to address regional haze in the Commonwealth's and other
states' Class I areas. On December 16, 2011, EPA published an action
proposing a limited approval and a limited disapproval of Kentucky's
two SIP revisions to address the first implementation period for
regional haze. See 76 FR 78194. EPA proposed a limited approval of
Kentucky's two SIP revisions to implement the regional haze
requirements for Kentucky on the basis that these revisions, as a
whole, strengthen the Kentucky SIP. Also in that action, EPA proposed a
limited disapproval of these same SIP revisions because of the
deficiencies in the Commonwealth's regional haze SIP revisions arising
from the remand of CAIR to EPA by the D.C. Circuit. EPA received
comments on the Agency's proposed actions for Kentucky's June 25, 2008,
and May 28, 2010, SIP revisions. See section II of this rulemaking for
a summary of comments received and EPA's responses to these comments.
Also, detailed background information and EPA's rationale for the
proposed actions are provided in EPA's December 16, 2011, proposed
rulemaking.
    Following the remand of CAIR, EPA recently issued a new rule in
2011 to address the interstate transport of NOX and
SO2 in the eastern United States. See 76 FR 48208 (August 8,
2011) (``the Transport Rule,'' also known as the Cross-State Air
Pollution Rule (CSAPR)). On December 30, 2011, EPA proposed to find
that the trading programs in the Transport Rule would achieve greater
reasonable progress towards the national goal than would best available
retrofit technology (BART) in the states in which the Transport Rule
applies. See 76 FR 82219. Based on this proposed finding, EPA also
proposed to revise the RHR to allow states to substitute participation
in the trading programs under the Transport Rule for source-specific
BART. EPA has not yet taken final action on that rule.
    Also on December 30, 2011, the D.C. Circuit issued an order
addressing the status of the Transport Rule and CAIR in response to
motions filed by numerous parties seeking a stay of the Transport Rule.
In that order, the D.C. Circuit stayed the Transport Rule pending the
court's resolutions of the petitions for review of that rule in EME
Homer Generation, L.P. v. EPA (No. 11-1302 and consolidated cases). The
court also indicated that EPA is expected to continue to administer
CAIR in the interim until the court rules on the petitions for review
of the Transport Rule.

II. What is EPA's response to comments received on this action?

    EPA received three sets of comments on the December 16, 2011,
rulemaking proposing a limited approval and limited disapproval of
Kentucky's June 25, 2008, and May 28, 2010, SIP revisions.
Specifically, the comments were received from the East Kentucky Power
Cooperative (EKPC), the Utility Air Regulatory Group, and collectively
from the Sierra Club and National Parks Conservation Association. Full
sets of the comments provided by all of the aforementioned entities
(hereinafter referred to as ``the Commenter'') are provided in the
docket for today's final action. The docket for this action is
available at www.regulations.gov under Docket Identification No. EPA-
R04-OAR-2009-0783. A summary of the comments and EPA's responses are
provided below.
    Comment 1: The Commenter asserts that EPA does not have the
authority under the CAA to issue a limited approval and concurrent
limited disapproval of Kentucky's regional haze SIP. The Commenter
contends that section 110(k) of the Act only allows EPA to fully
approve, partially approve and partially disapprove, conditionally
approve, or fully disapprove a SIP.
    Response 1: As discussed in the September 7, 1992, EPA memorandum
cited in the notice of proposed rulemaking,\1\ although section 110(k)
of the CAA may not expressly provide authority for limited approvals,
the plain language of section 301(a) does provide ``gap-filling''
authority authorizing the Agency to ``prescribe such regulations as are
necessary to carry out'' EPA's CAA functions. EPA may rely on section
301(a) in conjunction with the Agency's SIP approval authority in
section 110(k)(3) to issue limited approvals where it has determined
that a submittal strengthens a given state SIP and that the provisions
meeting the applicable requirements of the Act are not separable from
the provisions that do not meet the Act's requirements. EPA has adopted
the limited approval approach numerous times in SIP actions across the
nation over the last twenty years. Limited approval and limited
disapproval actions are appropriate here because EPA has determined
that Kentucky's SIP revisions addressing regional haze, as a whole,
strengthen the Commonwealth's SIP and because the provisions in the SIP
revisions are not separable.
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    \1\ Processing of State Implementation Plan (SIP) Revisions, EPA
Memorandum from John Calcagni, Director, Air Quality Management
Division, OAQPS, to Air Division Directors, EPA Regional Offices I-
X, September 7, 1992, (``1992 Calcagni Memorandum'') located at
http://www.epa.gov/ttn/caaa/t1/memoranda/siproc.pdf.
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    The Commenter notes that EPA's action ``directly contradicts the
plain language of the Clean Air Act'' and cites several federal
appellate court decisions to support its contention that section 110(k)
of the Act limits EPA to ``a conditional approval, a partial approval
and disapproval, or a full approval.'' However, adopting the
Commenter's position would ignore section 301 and violate the ``
`fundamental canon of statutory construction that the words of a
statute must be read in their context and with a view to their place in
the overall statutory scheme'* * *. A court must therefore interpret
the statute `as a symmetrical and coherent regulatory scheme,'* * * and
`fit, if possible, all parts into an harmonious whole.' '' FDA v. Brown
& Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (quoting Davis v.
Michigan Dept. of Treasury, 489 U.S. 803, 809 (1989), Gustafson v.
Alloyd Co., 513 U.S. 561, 569 (1995), and FTC v. Mandel Brothers, Inc.,
359 U.S. 385, 389 (1959)). Furthermore, the cases cited by the
Commenter did not involve challenges to a limited approval approach,
and one of the cases, Abramowitz v. EPA, 832 F.2d 1071 (9th Cir. 1988)
predates the 1990 CAA amendments enacting section 110(k).
    Comment 2: The Commenter states that EPA must partially disapprove

Kentucky's regional haze SIP submittal because it relied on CAIR, a
rule that, in the Commenter's words, has been ``declared illegal,
remanded and will come to an end.'' The Commenter also contends that
EPA must specifically ``disapprove the LTS [long-term strategy] that
rely upon emissions reductions predicted to result from CAIR to
supplant NOX and SO2 BART analyses and
determinations for EGUs [electric generating units] and otherwise meet
RPGs [reasonably progress goals].''
    Response 2: In 2008, the D.C. Circuit remanded CAIR back to the
Agency because the court believed that CAIR was inconsistent with the
requirements of the CAA. Although CAIR may not remain in effect
indefinitely, it is currently in force, and the Commonwealth's reliance
on CAIR was fully consistent with EPA's regulations at the time that
Kentucky developed its regional haze SIP. As explained in the December
16, 2011, proposed rulemaking (76 FR 78194), EPA is taking a limited
approval action because the revisions as a whole strengthen the SIP and
because this action is consistent with the court's intention to keep
CAIR temporarily in place. The limited approval results in an approval
of the entire regional haze submission and all of its elements,
preserving the visibility benefits offered by the SIP until CAIR is
replaced by the Transport Rule and EPA demonstrates that the Transport
Rule is better than BART. EPA is taking a limited disapproval action
because the Agency cannot fully approve regional haze SIP revisions
that rely on CAIR for emissions reduction measures for the reasons
discussed in section IV of the December 16, 2011, proposed rulemaking.
EPA's response to Comment 1, above, explains the Agency's authority to
take limited approval and limited disapproval actions under the CAA.
    EPA disagrees with the Commenter's request for a partial
disapproval of the SIP. Because the SIP provisions relying on CAIR,
including the LTS, do not meet the applicable regional haze
requirements and are not separable from the provisions that meet the
applicable requirements of the Act, a partial disapproval would prevent
any of the SIP's air quality benefits from being realized until EPA
promulgated a FIP or approved a revised SIP to address the
deficiencies. Furthermore, the two-year clock to promulgate a FIP to
remedy the deficiencies is triggered by the limited disapproval just as
it would be triggered by a partial disapproval. On December 30, 2011,
EPA proposed to find that the trading programs in the Transport Rule
would achieve greater reasonable progress towards the national goal
than would BART in the states in which the Transport Rule applies. See
76 FR 82219. Based on this proposed finding, EPA also proposed a FIP
for Kentucky in that action that would substitute participation in the
trading programs under the Transport Rule for participation in CAIR for
the purposes of satisfying regional haze requirements and would remedy
the CAIR-related deficiencies discussed above.
    Comment 3: The Commenter identifies its opposition to EPA's
December 30, 2011, proposed rulemaking to find that the Transport Rule
is better than BART and to ``use the Transport Rule as an alternative
to BART'' for Kentucky and other states subject to the Transport Rule.
The Commenter incorporates its comments on that December 30, 2011,
rulemaking ``by reference'' and outlines several of those comments,
including its arguments that the Transport Rule is not ``better than
BART'' and that EPA cannot rely on the Transport Rule as an
``alternative program or measure to displace BART requirements for
those BART-eligible sources in Transport Rule states.''
    Response 3: In today's rule, EPA is taking final action on the
limited approval and limited disapproval of Kentucky's regional haze
SIP. The Commenter correctly recognizes that EPA did not propose to
find that participation in the Transport Rule is an alternative to BART
in this rulemaking. As noted above, EPA made this proposed finding in a
separate action on December 30, 2011, and the Commenter is merely
reiterating and incorporating its comments on that separate action.
These comments are therefore beyond the scope of this rulemaking and
will be addressed, as appropriate, by EPA in its final action on the
December 30, 2011, proposed rule.
    Comment 4: The Commenter believes that the 2018 emissions inventory
is not approvable because Kentucky relied on the not-yet-approved
Charlotte/Gastonia/Rock Hill 1997 8-hr ozone nonattainment area SIP;
consent decrees for EKPC and American Electric Power (AEP) that allow
for various compliance options; and the Industrial Boiler Maximum
Achievable Control Technology (MACT) rule. The Commenter also believes
that it is irrational and arbitrary for EPA to expect that the State
will issue case-by-case MACT determinations through title V renewal
permits in a timely manner.
    Response 4: EPA does not expect that minor inventory differences
like those alleged, even if they occur, would affect the adequacy of
Kentucky's regional haze SIP. The technical information provided in the
record demonstrates that the emissions inventory in the SIP adequately
reflects projected 2018 conditions and should be approved. Kentucky's
2018 projections are based on the Commonwealth's technical analysis of
the anticipated emissions rates and level of activity for EGUs, other
point sources, nonpoint sources, on-road sources, and off-road sources
based on their emissions in the 2002 base year, considering growth and
additional emissions controls to be in place and federally enforceable
by 2018. The emissions inventory used in the regional haze technical
analyses was developed by Visibility Improvement State and Tribal
Association of the Southeast (VISTAS) with assistance from Kentucky.
The 2018 emissions inventory was developed by projecting 2002 emissions
(the latest region-wide inventory available at the time the submittal
was being developed) and applying reductions expected from federal and
state regulations affecting the emissions of VOC and the visibility-
impairing pollutants NOX, particulate matter (PM), and
SO2.
    To minimize the differences between the 2018 projected emissions
used in the Kentucky regional haze submittal and what actually occurs
in 2018, the RHR requires that the five-year review address any
expected significant differences due to changed circumstances from the
initial 2018 projected emissions, provide updated expectations
regarding emissions for the implementation period, and evaluate the
impact of these differences on RPGs. It is expected that individual
projections within a statewide inventory will vary from actual
emissions over a 16-year period. For example, some facilities shut down
whereas others expand operations. Furthermore, economic projections and
population changes used to estimate growth often differ from actual
events; new rules are modified, changing their expected effectiveness;
and methodologies to estimate emissions improve, modifying emissions
estimates. The five-year review is a mechanism to assure that these
expected differences from projected emissions are considered and their
impact on the 2018 RPGs is evaluated.
    In the specific instances cited by the Commenter, the
Commonwealth's analysis of projected emissions meets the requirements
of the regional haze regulations and EPA guidance. In the cases of the
two NOX sources in Charlotte (Philip Morris and Norandal),
the projected emissions reductions have already occurred or
installation of

control equipment is underway and the differences between projected
emissions and actual emissions, if there are any, are likely to be too
small to affect any of Kentucky's modeling. For the EGUs in Kentucky
(EKPC's Spurlock and Cooper plants and AEP's Big Sandy Plant (Big
Sandy)), the Commonwealth adjusted the Integrated Planning Model (IPM)
projections that VISTAS used for the inventory projections to postpone
the NOX and SO2 controls that IPM projected for
2009 based on the terms of the consent decrees for EKPC and AEP.
    Regarding the changes to the Industrial Boiler MACT rule, VISTAS
projected that the emissions reductions resulting from the original,
vacated Industrial Boiler MACT rule would be 0.1 to 0.2 percent,
depending on the pollutant, of the projected 2018 SO2,
PM2.5, and coarse particulate matter (PM10)
inventory. EPA has re-promulgated an Industrial Boiler MACT rule that
is at least equivalent to the one vacated with regard to the issues
raised by the Commenter, and EPA expects that this rule will result in
lower emissions from the affected facilities than those originally
projected for 2018. Further, as discussed in the December 16, 2011,
proposed rulemaking, there are provisions for case-by-case controls
should the Industrial Boiler MACT rule not be implemented pursuant to
its currently anticipated schedule.
    Comment 5: The Commenter contends that EPA must disapprove the
Kentucky SIP revisions with regard to the modeling if the ``modified
version'' of EPA's Models-3/Community Multiscale Air Quality (CMAQ)
model used by the Commonwealth has not been established to be
consistent with Appendix W. The Commenter also states that the modeling
uses meteorology from 2002 that is out of date and not representative
of 2018 or 2064, especially considering climate change. According to
the Commenter, EPA must therefore disapprove the modeling, require
Kentucky to use recent meteorological data, and require that the
modeling consider what impacts climate change will have on future
visibility impairment, ozone formation, and other factors that
influence visibility impairment such as relative humidity.
    Response 5: The modeling used by Kentucky is consistent with
Appendix W. EPA's guidance does not require a specific modeling system
for evaluating photochemical phenomena. EPA's CMAQ modeling system is
one of the photochemical grid models available capable of addressing
ozone, PM, visibility, and acid deposition on a regional scale. The
photochemical model that VISTAS selected for this study was CMAQ
version 4.5. VISTAS modified the module for secondary organic aerosols
in an open and transparent manner that was also subjected to outside
peer review (see Appendix C of the Kentucky regional haze SIP, located
in the docket for this action, for more information on the model
selection criteria). The procedures and analyses used in the CMAQ
modeling were developed in consultation with the appropriate reviewing
authorities and the affected federal land managers (FLMs).
    The modeling system based on the CMAQ photochemical model with a
modified secondary aerosol module and used in the regional assessment
of regional haze was developed and applied consistent with EPA's
Guidance on the Use of Models and Other Analyses for Demonstrating
Attainment of Air Quality Goals for Ozone, PM2.5, and
Regional Haze, located at http://www.epa.gov/scram001/guidance/guide/final-03-pmrh-guidance.pdf, (EPA-454/B-07-002), April 2007, and the EPA
document entitled, Emissions Inventory Guidance for Implementation of
Ozone and Particulate Matter National Ambient Air Quality Standards
(NAAQS) and Regional Haze Regulations, located at http://www.epa.gov/ttnchie1/eidocs/eiguid/index.html, EPA-454/R-05-001, August 2005,
updated November 2005 (``EPA's Modeling Guidance'').
    VISTAS developed the technical analyses supporting Kentucky's
regional haze SIP in the 2003-2006 time period; therefore, the use of
2002 data is appropriate and consistent with the EPA memorandum
authored by Lydia Wegman entitled, 2002 Base Year Emissions Inventory
SIP Planning: 8-hr Ozone, PM2.5 and Regional Haze Programs, located at
http://www.epa.gov/ttnchie1/eidocs/2002baseinven_102502new.pdf. With
regard to using meteorology from any chosen year, the issue is whether
the chosen year is representative, not whether it is ``out of date.''
VISTAS conducted an in-depth analysis which resulted in the selection
of the entire year of 2002 (January 1-December 31) as the best period
of meteorology available for conducting the CMAQ modeling for the
chosen base year of 2002.
    Regarding the comment that the modeling must consider the impacts
of climate change, the use of 2002 meteorology without adjustment is
more appropriate and more consistent with existing agency guidance. EPA
disagrees with the Commenter's position on this issue, a position that
the Commenter has raised in prior Kentucky SIP rulemakings. As
explained in more detail in those responses, modeling guidance is not
yet available for the type of area-specific analysis of effects of
climate change required for SIP planning. It is therefore premature to
require a precise mathematical accounting in the SIP process for the
effect of higher ambient temperatures due to climate change. The use of
unadjusted meteorological input is consistent with how photochemical
modeling demonstrations are developed for regulatory analyses. The 2002
meteorological data is used to support the base and future year
modeling. The rationale for its use in the base year is to test the
model's performance in reproducing observed temporal and concentration
spatial patterns. It is also used in the future year modeling for 2018
to test how control strategy is sufficient address the conditions
observed in the base year of 2002. The 2064 year is not included or
addressed in the regional haze SIP in this round of submittals.
    Comment 6a: The Commenter states that Kentucky excluded the
auxiliary boiler at Big Sandy from a BART analysis because it only
operated for short periods of time during startup and emissions tests.
According to the Commenter, EPA cites no authority for this
proposition, mentions no enforceable conditions that limit Big Sandy's
auxiliary boiler operations, and thus, EPA must disapprove the SIP for
failure to have a BART analysis for Big Sandy's auxiliary boiler.
    Response 6a: Kentucky addressed the exclusion of this auxiliary
unit in an approved modeling protocol. Tables B1 through B4 in Appendix
L.5 of Kentucky's June 25, 2008, regional haze SIP revision present the
operating data for the auxiliary boiler at Big Sandy for the period
June 22, 2003, through September 24, 2006. During this time, the boiler
had an average annual operating factor of 1.16 percent based on the
facility's actual operating hours with a range of 0.3 percent in 2005
to 2.68 percent for January to September 2006. With the exception of
September 2003, when the boiler was operated for NOX SIP
Call Low Mass Emitter certification testing and related operations
checks (this testing is required every five years), and during October
2004, when the boiler was operated periodically over a three-day period
while both generating units were out of service, the normal operating
pattern of the boiler is for it to only be fired at low load
periodically for a few minutes to test its ability to be started and
for use in starting up Unit 2. EPA agrees with Kentucky that this

data justifies not considering this boiler in the BART analysis.
    Comment 6b: The Commenter contends that the BART analysis for Big
Sandy units 1 and 2 fails to consider: Wet electrostatic precipitators
(ESPs); switching to a lower sulfur coal either entirely or as a blend
or co-firing natural gas or biomass; a circulating fluid bed (CFB)
scrubber; a spray dry absorption (SDA) scrubber; installing a fabric
filter (FF); upgrading the current ESPs to increase the size and/or
change from wire to rigid discharge electrode; changing the operation
of the air preheater; or trona injection coupled with replacing the ESP
with a new ESP. Because the BART analysis allegedly failed to consider
all available retrofit technologies, the Commenter states that EPA must
disapprove the SIP with regard to the PM BART determination for Big
Sandy. The Commenter also believes that EPA must disapprove the SIP
because it does not contain a ``firm'' closure date for unit 1; an
enforceable deadline for the installation of the flue gas
desulfurization (FGD) on unit 2 and the ammonia injection on unit 1;
and an emissions limit for condensable PM from both units.
    Response 6b: As stated in Appendix Y of 40 CFR part 51, available
retrofit control options are those air pollution control technologies
with a practical potential for application to the emissions unit and
the regulated pollutant under evaluation. In identifying ``all''
options, a state must identify the most stringent option and a
reasonable set of options for analysis that reflects a comprehensive
list of available technologies. It is not necessary to list all
permutations of available control levels that exist for a given
technology; the list is complete if it includes the maximum level of
control that each technology is capable of achieving. Furthermore, EPA
does not consider BART as a requirement to redesign the source when
considering available control alternatives. For example, where the
source subject to BART is a coal-fired EGU, EPA does not require the
BART analysis to consider building a natural gas-fired electric turbine
although the turbine may be inherently less polluting on a per unit
basis.
    AEP performed a full BART analysis for particulates, with its
primary focus on the condensable fraction due to the minimal impact
from the primary particulates since both units are currently equipped
with ESPs for primary particulate control. AEP evaluated five
combinations of condensable particulate control options for the two
units. For unit 1, AEP only considered injecting ammonia or injecting
trona, a mineral composed primarily of sodium and carbonate, for the
reduction of inorganic condensables. For unit 2, AEP considered
injecting ammonia, injecting trona, or installing a wet FGD system.
    In addition, AEP determined that the options involving injecting
trona on either unit at Big Sandy were technically infeasible. Based on
the experience of AEP at units where sorbents are injected for the
reduction of inorganic condensables, the presently installed ESPs at
both Big Sandy units are unsuitable for trona injection.
    For Big Sandy units 1 and 2, the company agreed to install ammonia
injection controls on unit 1 and a FGD on unit 2. KYDAQ reviewed the
source's BART modeling determination and available data. Considering
the statutory factors, Kentucky determined that the controls proposed
by AEP are reasonable and appropriate for addressing condensable
particulates and their impacts on nearby Class I areas. EPA agrees with
Kentucky's analyses and conclusions. EPA has reviewed the
Commonwealth's analyses and concluded that they were conducted in a
manner that is consistent with EPA's BART Guidelines and EPA's Air
Pollution Control Cost Manual (http://www.epa.gov/ttncatc1/products.html#cccinfo).
    Regarding AEP's decision not to evaluate installation of a wet FGD
on unit 1 because of its age, EPA would generally not rely on an
assertion that a unit would shut down without a legally enforceable
condition requiring shutdown of the unit at issue. Kentucky has
determined that BART for unit 1 is ammonia injection. As noted in EPA's
December 16, 2011, proposed rulemaking, on June 9, 2011, AEP announced
that Big Sandy unit 1 would be retired by December 31, 2014, and unit 2
would be rebuilt as a natural gas-fired plant by December 31, 2015.
Since that announcement, AEP modified its plans to convert unit 2 from
coal to gas power. It now plans to construct a dry FGD or ``scrubber''
system on unit 2, the plant's 800-megawatt electricity generation unit.
However, AEP still plans to shut down unit 1 (the older of the two;
rated at 278 megawatts) and to retire it at the end of 2014. On
December 5, 2011, the company made a formal filing of an Application
for a Certificate of Public Convenience and Necessity before the
Kentucky Public Service Commission, which must approve the project and
investment. As the company continues the required proceedings for
closure of unit 1, requiring additional analysis would not likely
change the conclusions of the BART analysis. In any case, if the
decision to close unit 1 should be reversed, the requirements for an
ammonia scrubber remain in place.
    Comment 6c: According to the Commenter, EPA should clarify whether
the 99 percent removal efficiency for the existing ESP at the E.ON U.S.
Mill Creek Station (Mill Creek) is for filterable or condensable PM. If
it is filterable, the Commenter believes that it is arbitrary to base a
BART analysis on the current removable rate for filterable PM when the
BART analysis is supposed to address condensable PM. The Commenter also
states that the BART analysis rejects pulse jet fabric filter (PJFF)
and wet ESP based solely on the incremental cost and admits that the
average cost effectiveness for sorbent injection on all four units is
about the same. ``Apparently, the BART analysis rejects sorbent
injection on units 1 and 2 because it would cost more to install
pollution controls on all four units than on just two units. * * *
[t]his is not a rationale basis for rejecting sorbent injection in
units 1 and 2.'' The Commenter further contends that EPA must
disapprove Kentucky's regional haze SIP with regard to the PM BART
analysis for Mill Creek since the analysis fails to consider: Switching
to a lower sulfur coal either entirely or as a blend or co-firing
natural gas or biomass; CFB scrubbers; SDA scrubbers; upgrading
existing scrubbers; upgrading the current ESPs to increase the size
and/or change from wire to rigid discharge electrode; or changing the
operation of the air preheater.
    Response 6c: The existing ESP removal efficiency referred to by the
Commenter is for filterable particulates. These filterable emissions,
which are 99 percent controlled, are a substantial portion of the
facility's potential PM emissions and maintaining these limits for
regional haze is appropriate. For the two units where additional PM
controls are being adopted for BART, the Commonwealth has adopted
additional emissions limits to handle condensable PM (primarily in the
form of SO3/H2SO4), to address those
emissions not controlled by the filterable emissions limit. As
documented in Kentucky's May 28, 2010, revision to its regional haze
SIP, the title V permitted BART emissions limits for Mill Creek Units 3
and 4 are 64.3 pounds per hour (lb/hr) and 76.5 lb/hr, respectively,
for sulfuric acid mist (H2SO4). These are new
BART limits for the two units for which controls on condensable
particulates are being installed.
    Regarding the technologies considered in the BART analysis for Mill
Creek, as stated in Appendix Y of

40 CFR part 51, available retrofit control options are those air
pollution control technologies with a practical potential for
application to the emissions unit and the regulated pollutant under
evaluation. In identifying ``all'' options, a state must identify the
most stringent option and a reasonable set of options for analysis that
reflects a comprehensive list of available technologies. It is not
necessary to list all permutations of available control levels that
exist for a given technology; the list is complete if it includes the
maximum level of control that each technology is capable of achieving.
Furthermore, EPA does not consider BART as a requirement to redesign
the source when considering available control alternatives. For
example, where the source subject to BART is a coal-fired EGU, EPA does
not require the BART analysis to consider building a natural gas-fired
electric turbine although the turbine may be inherently less polluting
on a per unit basis. Similarly, EPA does not interpret the CAA or the
RHR as requiring states to consider limiting the type of coal burned as
a BART control technology.
    For the Mill Creek BART analysis, the Commonwealth concluded that
the technically feasible technologies for evaluation in accordance with
Step 2 of the BART analysis included the existing cold-side ESP and
PJFF for PM, and sorbent injection and a wet ESP for sulfates. From
this list of technically feasible control technologies, the existing
cold-side ESP is already in place at all four units at Mill Creek.
Therefore, only the three additional control technologies were
subjected to the remaining engineering analysis process to determine
BART technologies for visibility modeling. The existing cold-side ESPs
at all four units at Mill Creek are already demonstrating high PM
removal efficiencies of 99 percent, and all four units are already
equipped with wet FGD systems for SO2 removal, limiting the
additional available options for sulfite (SO3) condensable
particulate control. The incremental cost effectiveness of PJFF and a
wet ESP ranged from $20,380 to $52,190 per ton of PM reduced, and these
options were not considered further. Sorbent injection was more cost
effective, ranging from $4,293 to $5,017 per ton of PM reduced.
    As discussed in the December 16, 2011, proposed rulemaking,
Kentucky determined that BART for Mill Creek is the installation of
sorbent injection controls on the larger units 3 and 4. Kentucky did
not require BART controls on units 1 and 2 because controls on these
units would nearly double the cost (an additional $8.8 million beyond
the $10.5 million for controls on units 3 and 4) for a visibility
improvement of 0.36 deciview (compared with a 0.83 deciview improvement
from controlling units 3 and 4). The Commonwealth therefore concluded
that controls on units 1 and 2 were not as cost effective.
    As is noted in the BART guidelines, the Commonwealth has discretion
in assigning the proper weight and significance to each of the five
statutory factors that it must consider in making a BART determination.
EPA has reviewed the Commonwealth's analyses and concluded they were
conducted in a manner that is consistent with EPA's BART Guidelines and
EPA's Air Pollution Control Cost Manual (http://www.epa.gov/ttncatc1/products.html#cccinfo). Therefore, Kentucky's determination reflects a
reasonable application of EPA's guidance to these sources.
    Comment 6d: The Commenter contends that EPA must disapprove the
BART determinations for EKPC's Spurlock and Cooper Stations since the
BART analysis provides no limit on condensable PM and fails to consider
switching to a lower sulfur coal either entirely or as a blend; co-
firing natural gas or biomass; or changing the operation of the air
preheater.
    Response 6d: Regarding the technologies considered in the BART
analyses for Spurlock and Cooper, as stated in Appendix Y of 40 CFR
part 51, available retrofit control options are those air pollution
control technologies with a practical potential for application to the
emissions unit and the regulated pollutant under evaluation. In
identifying ``all'' options, a state must identify the most stringent
option and a reasonable set of options for analysis that reflects a
comprehensive list of available technologies. It is not necessary to
list all permutations of available control levels that exist for a
given technology; the list is complete if it includes the maximum level
of control each technology is capable of achieving. Furthermore, EPA
does not consider BART as a requirement to redesign the source when
considering available control alternatives. For example, where the
source subject to BART is a coal-fired EGU, EPA does not require the
BART analysis to consider building a natural gas-fired electric turbine
although the turbine may be inherently less polluting on a per unit
basis.
    EKPC evaluated three options and agreed to install the top ranking
option of wet FGD for SO2 control and wet ESP for PM control
for both Spurlock and Cooper. These controls are consistent with those
in a consent decree that EKPC entered into with EPA that will address
condensable particulate emissions and other visibility impairing
pollutants. Kentucky subsequently modified this BART determination in
its May 28, 2010, regional haze SIP revision with a comparably
effective option at Cooper Units 1 and 2 of dry FGD and FF emissions
controls for the wet FGD and wet ESP controls. EPA believes that
Kentucky has appropriately addressed BART for this facility.
    Comment 6e: For the Tennessee Valley Authority's (TVA's) Paradise
Fossil Plant (TVA Paradise), the Commenter contends that the BART
analysis fails to consider switching to a lower sulfur coal (either
entirely or as a blend); co-firing natural gas or biomass; a wet FGD; a
dry CFB scrubber; a SDA scrubber; or changing the operation of the air
preheater. For these reasons, the Commenter believes that EPA must
disapprove this BART determination.
    Response 6e: Regarding the technologies considered in the BART
analysis for TVA Paradise, as stated in Appendix Y of 40 CFR part 51,
available retrofit control options are those air pollution control
technologies with a practical potential for application to the
emissions unit and the regulated pollutant under evaluation. In
identifying ``all'' options, a state must identify the most stringent
option and a reasonable set of options for analysis that reflects a
comprehensive list of available technologies. It is not necessary to
list all permutations of available control levels that exist for a
given technology; the list is complete if it includes the maximum level
of control that each technology is capable of achieving. Furthermore,
EPA does not consider BART as a requirement to redesign the source when
considering available control alternatives. For example, where the
source subject to BART is a coal-fired EGU, EPA does not require the
BART analysis to consider building a natural gas-fired electric turbine
although the turbine may be inherently less polluting on a per unit
basis.
    All three units at TVA Paradise are already equipped with FGD
systems. These systems are in the process of being upgraded, and TVA
believes that the work should be completed by December 31, 2012. The
BART analysis focused on control of condensable PM (primarily in the
form of SO3/H2SO4). TVA concluded that
neither of the two control options evaluated (wet ESP and hydrated lime
injection) were cost effective, and the Commonwealth concurred.
However, as discussed in the December 16, 2011, proposed

rulemaking, TVA plans to install hydrated lime injection controls on
TVA Paradise units 1-3 to mitigate opacity due to SO3
emissions, and these controls are required to be in place pursuant to
the December 15, 2009, title V permit for the facility. EPA therefore
believes that Kentucky has appropriately addressed BART for this
facility.
    Comment 6f: The Commenter makes several statements regarding PM
BART emissions limits. First, the Commenter believes that emissions
limits at all ``subject to BART'' units must have an averaging time,
testing, and monitoring for condensable PM that assures compliance with
the condensable PM limits at all times, including during startup,
shutdown, and malfunction. Second, the Commenter asserts that all
emissions limits contained in consent decrees must be added to the SIP
because consent decrees can be modified without public participation
and are eventually terminated. Third, the Commenter explains that, in
its opinion, PM BART emissions limits must be effective as soon as
practical, and that EPA must determine when this is. The Commenter goes
on to state that EPA ``cannot just say it has to be effective as soon
as practical'' since this is ``too vague to be enforceable.'' For units
using existing pollution controls, ``the emissions limits should be
effective on the date of publication of the final rule. For other
units, EPA should determine what is the quickest time the new equipment
can be installed and fully operational.'' For these reasons, the
Commenter claims that EPA must disapprove the SIP submittal.
    Response 6f: The adopted BART emissions limits all have testing and
monitoring requirements that will be included in the respective title V
operating permit. The consent decrees stipulate these requirements and
explicitly address how startup, shutdown, and malfunctions are to be
considered. These agreements also require that the consent decrees
remain in force until the title V permit is issued. Since these limits
have been formally adopted by Kentucky in its regional haze SIP, these
requirements will become federally enforceable once EPA approves the
SIP revisions. The title V permit, which documents all enforceable
provisions, will also be updated at the appropriate time. All BART
emissions limits are contained in the SIP, including the limits that
also appear in consent decrees, and therefore meet the requirement that
the limits be federally enforceable. Regarding BART effective dates, 40
CFR 51.308(e)(1)(iv) states that ``* * * each source subject to BART be
required to install and operate BART as expeditiously as practicable,
but in no event later than 5 years after approval of the implementation
plan revision,'' and Kentucky adopted requirements consistent with this
regulation.
    Comment 7: The Commenter suggests that EPA should ``issue a new
proposal and hold a new public comment period'' because the ``Federal
Register notice of EPA's proposed rule does not include the actual
language which EPA is proposing to include in the Kentucky SIP.''
    Response 7: EPA disagrees with the Commenter's position on the
content of EPA's December 16, 2011, proposed rulemaking, a position
that the Commenter has raised in several prior SIP rulemakings. Neither
the CAA nor the Administrative Procedure Act mandates that the proposed
and final Federal Register rulemaking actions include the complete text
of the proposed SIP revision. The December 16, 2011, proposed
rulemaking satisfies the notice requirements by providing citations to
the rules at issue, offering the SIP revisions for public review, and
describing the subjects and issues involved in the SIP revisions.
Publication in the Federal Register is costly and resource intensive,
and EPA makes every effort to provide key information in proposal
notices while at the same time using Agency resources efficiently. EPA
drafts rulemaking notices to enable public understanding of the
subjects and issues at hand. EPA included the complete text of the SIP
revisions in the docket at the time that it issued the proposed rule
and it remains available for public view. The docket for this action is
available at www.regulations.gov under Docket Identification No. EPA-
R04-OAR-2009-0783. In addition, the public may also contact the listed
contacts for any further information or questions.
    Comment 8: The Commenter contends that Kentucky's regional haze SIP
must require revisions to address Reasonably Attributable Visibility
Impairment (RAVI) within three years of a FLM certifying visibility
impairment and that the Commonwealth's commitment to address RAVI
should a FLM certify visibility impairment is not enough. The Commenter
also contends that the SIP must require Kentucky to submit a report to
EPA on progress towards the RPGs and that the Commonwealth's commitment
to do so is not sufficient.
    Response 8: The SIP revisions do not address RAVI requirements
since this was the subject of previous rulemakings (see the response to
Comment 11). EPA's visibility regulations direct states to coordinate
their RAVI LTS provisions with those for regional haze and the RAVI
portion of a SIP must address any integral vistas identified by the
FLMs. However, as stated in the December 16, 2011, proposed rulemaking,
the FLMs have not identified any integral vistas in Kentucky, the Class
I area in Kentucky is not experiencing RAVI, and no Kentucky sources
are affected by the RAVI provisions. Thus, the June 25, 2008, Kentucky
regional haze SIP revisions did not explicitly address the coordination
of the regional haze with the RAVI LTS although Kentucky made a
commitment to address RAVI should the FLM certify visibility impairment
from an individual source. EPA finds that Kentucky's regional haze SIP
appropriately supplements and augments the Commonwealth's RAVI
visibility provisions to address regional haze by updating the LTS
provisions as Kentucky has done.
    Regarding reports on progress toward RPGs, 40 CFR 51.308(g)
requires states to ``submit a report to [EPA] every 5 years evaluating
progress towards the reasonable progress goal for each mandatory Class
I Federal area located within the State and in each mandatory Class I
Federal area located outside the State which may be affected by
emissions from within the State.'' It is unnecessary for a state rule
to make this enforceable since it is part of EPA's regional haze
regulations (i.e., an enforceable requirement). The progress reports
must be in the form of a SIP revision and are therefore subject to the
requirements for SIP revisions in the CAA and to EPA's review and
approval. The commitments in Kentucky's SIP are consistent with the
regulatory requirements for this provision.
    Comment 9a: The Commenter claims that Kentucky's regional haze SIP
does not explain how monitoring data and other information is used to
determine the contribution of emissions from within the Commonwealth to
regional haze visibility impairment at Class I areas within and outside
Kentucky. Therefore, the Commenter believes that EPA must disapprove
Kentucky's regional haze SIP.
    Comment 9b: The Commenter states that the SIP must clearly state
the method by which the Commonwealth intends to report visibility
modeling to the EPA. Additionally, the Commenter states that if
Kentucky plans to rely on the referenced Visibility Information
Exchange Web System (VIEWS) Web site for reporting, the SIP must
clearly state, not imply, that Kentucky intends to use the Web site as
its way of reporting visibility monitoring data. ``If

Kentucky intends to use another method of reporting visibility, the
proposal need to explain this. If Kentucky intends to use this web
site, it is not sufficient that Kentucky is `encouraging' VISTAS to
maintain this web site.'' The Commenter also states that the Kentucky
SIP needs to have an enforceable mechanism to transmit the Interagency
Monitoring of Protected Visual Environments (IMPROVE) data to EPA as
well as an enforceable mechanism to ensure that the IMPROVE data is
continually gathered. The ``SIP must include an enforceable requirement
that the data is gathered by Kentucky unless it is gathered by other
entities such as VISTAS and the National Park Service.'' The Commenter
concludes by stating that ``EPA must disapprove the SIP submittal in
this regard because such an enforceable requirement is missing.''
    Response 9a, 9b: The primary monitoring network for regional haze
in Kentucky is the IMPROVE network. There is currently one IMPROVE site
in the Commonwealth, which serves as the monitoring site for Mammoth
Cave National Park in Kentucky. IMPROVE monitoring data from 2000-2004
serves as the baseline for the regional haze program, and is relied
upon in the Kentucky regional haze submittal. Monitoring data is
different from emissions data or analyses conducted to attribute
contribution. These analyses are part of the ten-year planning period
updates conducted by the states.
    In its SIP revisions, Kentucky states its intention to rely on the
IMPROVE network for complying with the regional haze monitoring
requirement in EPA's RHR for the current and future regional haze
implementation periods. Data produced by the IMPROVE monitoring network
will be used nearly continuously for preparing the five-year progress
reports and the 10-year SIP revisions, each of which relies on analysis
of the preceding five years of data. The VIEWS Web site has been
maintained by VISTAS and the other regional planning organizations
(RPOs) to provide ready access to the IMPROVE data and data analysis
tools. Kentucky is encouraging VISTAS and the other RPOs to maintain
the VIEWS or a similar data management system to facilitate analysis of
the IMPROVE data. Kentucky cannot legally bind federal and state
legislatures to continue to fund the monitoring program for regional
haze. Kentucky's SIP adequately addresses this provision and explains
how monitoring data and other information has been and will be used to
determine the contribution of emissions from within the Commonwealth to
regional haze visibility impairment at Class I areas.
    Comment 9c: According to the Commenter, there is no indication that
Kentucky developed an emissions inventory for the most recent year for
which data are available (2008, 2009 or 2010), and EPA must disapprove
the SIP on this point. The Commenter also states that there are no
requirements for reporting, recordkeeping, and other measures necessary
to assess and report on visibility, and therefore, EPA must also
disapprove on this point.
    Response 9c: There are no requirements relating to reporting and
recordkeeping of emissions to assess and report on visibility other
than those that relate to the submittal the five-year review. The
analyses performed in support of Kentucky's SIP revisions were
conducted in the 2003-2006 time period. EPA therefore finds the use of
the 2002 emissions inventory to be appropriate. The necessary data to
assess the SIP submission are contained in the appendices to the
Commonwealth's 2008 regional haze submittal. For the more voluminous
data such as modeling files, please see Appendix I of the 2008 SIP
submittal for data access instructions. The next inventory submittal
will be part of the five-year review, and VISTAS has been working with
its states to develop a comprehensive baseline inventory (expected to
be for 2007 and updated with appropriate additional later information)
which will be part of the five-year submittal. The record demonstrates
that Kentucky's SIP adequately addresses the emissions inventory
requirement.
    Comment 10: The Commenter states that Kentucky did not adequately
respond to requests from Maine, Vermont, New Jersey, and New Hampshire
for a 28 percent reduction in SO2 emissions from non-EGU
sources and a 90 percent reduction in SO2 emissions from 14
Kentucky EGUs. With regard to the EGUs, the Commenter further explains
that Kentucky's assertion that 93 percent of these 14 EGUs have or will
have SO2 controls by 2015 or earlier is flawed because
having SO2 controls on EGUs does not necessarily mean that
those EGUs will achieve a 90 percent reduction in SO2
emissions. The Commenter also asserts that Kentucky did not establish
that having SO2 controls on these EGUs will address
Kentucky's apportioned emissions reductions under 40 CFR
51.308(d)(3)(ii)-(iii) for the Class I areas in Maine, Vermont, New
Jersey, and New Hampshire. For these reasons, the Commenter believes
that EPA must disapprove Kentucky's SIP with regard to its obligations
under 40 CFR 51.308(d)(3) to address visibility impacts in these
states.
    Response 10: The letters sent in 2007 from Maine, Vermont, New
Jersey, and New Hampshire, (states in the Mid-Atlantic/Northeast
Visibility Union (MANE-VU) RPO), invite Kentucky to participate in
future consultation meetings because visibility impacts from Kentucky's
sources exceeded one of the minimum thresholds used by MANE-VU to
identify sources with potential visibility impacts at one or more of
the Class I areas in the MANE-VU region. These thresholds for
reasonable control consideration were used to identify states to invite
to the first set of inter-RPO consultation meetings. The states'
letters cite to the report entitled, Contributions to Regional Haze in
the Northeast and Mid-Atlantic United States, NESCAUM, August 2006,
http://www.nescaum.org/documents/contributions-to-regional-haze-in-the-northeast-and-mid-atlantic--united-states. In accordance with 40 CFR
51.308(d)(i), Kentucky participated in consultation calls and meetings
in 2007 as requested, and in the Commonwealth's final SIP submittal
dated June 25, 2008, Kentucky provided its final response regarding the
MANE-VU requests. Kentucky received no adverse comments from any of the
MANE-VU states during the public comment period on its proposed
regional haze SIP, nor did the Commonwealth receive any additional
correspondence from these states once Kentucky submitted its final SIP
to EPA.
    Kentucky's position is that the significant existing and expected
EGU emissions controls more than adequately respond to the EGU and non-
EGU requests from the MANE-VU RPO. Kentucky provided supporting
information to address its apportionment of emissions reductions in
Appendix H of its SIP; and in Appendix H.4, the Commonwealth documents
the existing and planned controls for the Commonwealth's EGUs,
including those EGUs identified by MANE-VU. These EGU SO2
controls reflect what is predicted or has occurred to address CAIR
requirements. Kentucky demonstrated in its SIP that no additional
SO2 controls beyond CAIR are reasonable for reasonable
progress for the first implementation period. Kentucky states in its
SIP that it plans to assess the EGU controls predicted under CAIR with
what is actually occurring at these sources for the first periodic
report due five years after initial submittal of the first regional
haze SIP (i.e., June 2013).

    As explained in EPA's December 16, 2011, proposed rulemaking, prior
to the CAIR remand by the D.C. Circuit, EPA believed the Commonwealth's
demonstration that no additional controls beyond CAIR are reasonable
for SO2 for affected Kentucky EGUs for the first
implementation period to be acceptable. However, the Commonwealth's
demonstration regarding CAIR and reasonable progress for EGUs, and
other provisions in the Kentucky regional haze SIP, are based on CAIR,
and thus, the Agency is issuing a limited approval of the Kentucky
regional haze SIP revisions.
    Regarding non-EGU SO2 emissions, the Commonwealth
established a threshold to determine which emissions units would be
evaluated for reasonable progress controls, and found no additional
SO2 controls for these sources are reasonable for the first
implementation period. EPA believes that Kentucky has adequately
addressed its apportionment of emissions reductions determined through
the VISTAS process, and shared via consultation with the other RPOs, in
accordance with 40 CFR 51.308(d)(3).
    Comment 11: The Commenter states that there is no evidence that
Kentucky's regional haze SIP revisions comply with the requirement in
40 CFR 51.306(d) that the LTS provides for review of the impacts from
any new major stationary source or major modifications on visibility in
any mandatory Class I area in accordance with 40 CFR 51.307, 51.166,
51.160 and any binding guidance insofar as these provisions pertain to
protection of visibility. The Commenter also contends that EPA must
therefore disapprove Kentucky's SIP revisions in part with regard to 40
CFR 51.306(d) and the provisions cited therein.
    Response 11: The Kentucky regional haze SIP revisions subject to
this rulemaking address the regional haze requirements of 40 CFR 51.308
whereas the regulation cited by the Commenter, 40 CFR 51.306(d), is
specific to the LTS requirements for RAVI. Furthermore, as identified
in footnote 18 \2\ of EPA's December 16, 2011, proposed rulemaking,
Kentucky has already addressed the new source review requirements for
visibility (40 CFR 51.307) and RAVI LTS (40 CFR 51.306) in its SIP and
EPA has fully approved these provisions.
---------------------------------------------------------------------------

    \2\ The Kentucky visibility SIP revisions to address Prevention
of Significant Deterioration (PSD) provisions were submitted to EPA
on February 20, 1986, and approved by EPA September 1, 1989 (54 FR
36311). The Commonwealth's visibility plan provisions were submitted
on August 31, 1987, and approved July 12, 1988 (53 FR 26256). The
nonattainment NSR provisions were submitted July 14, 2004, and
approved July 11, 2006 (71 FR 38990).
---------------------------------------------------------------------------

    Comment 12: The Commenter contends that EKPC agreed to install wet
FGDs and wet ESPs at Spurlock and Cooper Stations pursuant to a BART
analysis, and not pursuant to EKPC's July 2, 2007, consent decree with
the United States (United States v. EKPC, 04-34-KSF (E.D. Ky)). The
Commenter requests that EPA ``clarify the language in the Proposed
Rule'' accordingly.
    Response 12: The consent decree was a separate action from the BART
determination, and EPA did not intend to imply that the consent decree
was entered into to address regional haze. Kentucky structured its SIP
to meet the BART requirements, recognizing the existence of similar
requirements in the consent decrees. EPA relied on the following
language found in the Kentucky regional haze SIP revision (see the May
28, 2010, revised Kentucky regional haze SIP revision, Table 7.5.3-1):
`` * * * EKPC per a consent decree and for BART will install a wet FGD
and wet ESP at EKPC Spurlock Units 1 and 2 that will address
condensable particulate emissions and other visibility impairing
pollutants'', and

`` * * * EKPC per a consent decree and for BART will install a dry FGD
and fabric filtration at EKPC Cooper Units 1 and 2 that will address
condensable particulate emissions and other visibility impairing
pollutants.''
    Comment 13: According to the Commenter, EPA's December 16, 2011,
proposed rulemaking incorrectly states that the EKPC consent decree
provides for a filterable PM emissions rate of 0.03 pound per million
British Thermal Unit (lb/MMBtu), and therefore, EPA should delete any
reference indicating that the consent decree provides for this 0.03 lb/
MMBtu rate for any EKPC unit and any references to this emissions rate.
    Response 13: EPA reviewed the consent decree and the SIP language
again in response to this comment. EPA concludes that the Commenter is
correct that the consent decree provided other alternatives to
developing a filterable particulate limit. However, Kentucky's regional
haze SIP is explicit in several instances that EKPC identified, and the
Commonwealth accepted, the 0.03 lb/MMBtu limit as BART. EPA points the
Commenter to the following statements in Kentucky's regional haze SIP
revisions:
``* * * A 07/02/07 EKPC consent decree provides a filterable PM
emission rate of 0.030 lb/MMBtu, which was utilized to demonstrate
modeled visibility improvement. Emission limits and controls will be
included in the source's Title V Permit as appropriate or on renewal.''
(May 28, 2010, revised SIP revision, Table 7.5.3-2).

`` * * * application of WFGD/ESP controls to Spurlock Units 1 and 2 and
Cooper Units 1 and 2, with a filterable PM limit of 0.03 lb/MMBtu,
mitigates any adverse visibility impacts in Class I areas within 300 km
of each source. In accordance with the draft EPA consent decree, EKPC
will apply these controls * * *.'' (Appendix L.11, p.17 (EKPC BART
determination submittal, included as part of the Kentucky SIP
revision)).

    ``In the 2007 BART Submittal, EKPC determined that a WFGD/WESP
control train capable of achieving 0.030 lb/mmBtu filterable PM and
0.052lb/mmBtu total PM was BART for Cooper Units 1 and 2. EKPC is
requesting that it be allowed to substitute a DFGD/FF control train
capable of achieving 0.030 lb/mmBtu filterable PM and 0.045 lb/mmBtu
total PM for the WFGD/WESP control train previously approved * * *''
(Appendix L.11, p. 197 (March 18, 2009 submittal from EKPC to KYDAQ)).

``* * * Therefore, application of DFG/DIFF controls to Cooper Units 1
and 2, with a filterable PM limit of 0.030 lb/mmBtu, mitigates any
adverse visibility impact in Class I areas within 300 km of each source
and fulfills the BART requirements * * *'' Appendix L.11, p. 200.

    Accordingly, EPA considers the 0.03 lb/MMBtu filterable PM
emissions limit to be an appropriately adopted and enforceable SIP
limit and part of the BART determination for EKPC Cooper Units 1 and 2
and Spurlock Units 1 and 2.
    Comment 14: The Commenter contends that EPA should fully approve
Kentucky's regional haze SIP revisions because they are consistent with
EPA's regional haze rules. In support of its position, the Commenter
states that the regulations allowing states to rely on CAIR to satisfy
BART are still legally valid and effective, and therefore, Kentucky can
continue to rely on CAIR. The Commenter also believes that EPA should
fully approve Kentucky's regional haze SIP in response to the D.C.
Circuit's order staying the implementation of the Transport Rule
pending resolution of the legal challenges to the Rule.
    Response 14: EPA has the authority to issue a limited approval (see
response to Comment 1) and it is appropriate and necessary to
promulgate a limited approval and limited disapproval of Kentucky's
regional haze SIP revisions

at this time (see response to Comment 2). This action results in an
approval of the entire regional haze SIP and all of its elements,
preserving the visibility benefits offered by the SIP while providing
EPA with the opportunity to demonstrate that the Transport Rule is
better than BART. As noted above, EPA has already published a proposed
rule reflecting this demonstration. EPA cannot fully approve regional
haze SIP revisions that rely on CAIR for emissions reduction measures
for the reasons discussed in section IV of the December 16, 2011,
proposed rulemaking, and therefore proposed to grant limited approval
and limited disapproval of the Kentucky regional haze SIP revisions.
The D.C. Circuit's order staying the Transport Rule has no effect on
the court's 2008 ruling in North Carolina v. EPA, 550 F.3d 1176 (D.C.
Cir. 2008). Therefore, the proposed limited approval and limited
disapproval actions remain appropriate for the reasons discussed in
section IV of the December 16, 2011 proposed rulemaking cited above.
    Comment 15: The Commenter states that ``EPA should promulgate
regulations that will avoid any asserted need to propose or promulgate
limited disapprovals of regional haze SIPs or to propose or promulgate
regional haze FIPs for states that have relied on CAIR or that may rely
on CSAPR, or both, as a BART alternative for NOX and
SO2 emissions from EGUs.'' The Commenter believes that EPA
should promulgate regulations that would provide expressly that a state
that becomes subject to CSAPR may choose to adopt a ``CSAPR=BART policy
that would apply at such time as CSAPR takes effect.'' The Commenter
also states that the ``visibility-improvement benefits from CAIR's
emissions reductions * * * are likely to be replicated, or indeed
exceeded, by the visibility benefits projected to result from CSAPR if
CSAPR takes effect in the future.''
    Response 15: As noted in the response to Comment 3, this action is
focused solely on the limited approval and limited disapproval of
Kentucky's regional haze SIP revisions submitted on June 25, 2008, and
May 28, 2010. Given that the Transport Rule, or CSAPR, was not signed
until 2011, neither SIP revision mentions the Transport Rule nor
suggests that the Commonwealth intended to rely on the reductions from
this rule to meet the regional haze requirements. EPA did not propose
to find that participation in the Transport Rule is an alternative to
BART in this rulemaking. EPA made this proposed finding in a separate
action on December 30, 2011; therefore, these comments are beyond the
scope of this rulemaking and will be addressed by EPA in its final
action on the December 30, 2011, proposed rule.

III. What is the effect of this final action?

    Under CAA sections 301(a) and 110(k)(6) and EPA's long-standing
guidance, a limited approval results in approval of the entire SIP
revision, even of those parts that are deficient and prevent EPA from
granting a full approval of the SIP revision (see EPA's 1992 Calcagni
Memorandum). Today, EPA is finalizing a limited approval of Kentucky's
June 25, 2008, and May 28, 2010, regional haze SIP revisions. This
limited approval results in approval of Kentucky's entire regional haze
SIP and all the elements. EPA is taking this approach because
Kentucky's SIP will be stronger and more protective of the environment
with the implementation of those measures by the Commonwealth and
having federal approval and enforceability than it would without those
measures being included in Kentucky's SIP.
    In this action, EPA is also finalizing a limited disapproval of
Kentucky's June 25, 2008, and May 28, 2010, regional haze SIP revisions
insofar as these SIP revisions rely on CAIR to address the impact of
emissions from the Commonwealth's EGUs. As explained in the 1992
Calcagni Memorandum, ``[t]hrough a limited approval, EPA [will]
concurrently, or within a reasonable period of time thereafter,
disapprove the rule * * * for not meeting all of the applicable
requirements of the Act. * * * [T]he limited disapproval is a
rulemaking action, and it is subject to notice and comment.'' Final
limited disapproval of a SIP submittal does not affect the federal
enforceability of the measures in the subject SIP revision nor prevent
state implementation of these measures. The legal effect of the final
limited disapproval for Kentucky's June 25, 2008, and May 28, 2010, SIP
revisions is to provide EPA the authority to issue a FIP at any time,
and to obligate the Agency to take such action no more than two years
after the effective date of EPA's final action. As explained in the
1992 Calcagni Memorandum, ``[t]hrough a limited approval, EPA [will]
concurrently, or within a reasonable period of time thereafter,
disapprove the rule * * * for not meeting all of the applicable
requirements of the Act. * * * [T]he limited disapproval is a
rulemaking action, and it is subject to notice and comment.''

IV. Final Action

    EPA is finalizing a limited approval and a limited disapproval of
two revisions to the Kentucky SIP submitted by the Commonwealth of
Kentucky on June 25, 2008, and May 28, 2010, as meeting some of the
applicable regional haze requirements as set forth in sections 169A and
169B of the CAA and in 40 CFR 51.300-308.

V. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 12866, entitled ``Regulatory
Planning and Review.''

B. Paperwork Reduction Act

    Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., OMB must
approve all ``collections of information'' by EPA. The Act defines
``collection of information'' as a requirement for answers to * * *
identical reporting or recordkeeping requirements imposed on ten or
more persons * * *. 44 U.S.C. 3502(3)(A). The Paperwork Reduction Act
does not apply to this action.

C. Regulatory Flexibility Act (RFA)

    The RFA generally requires an agency to conduct a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements 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 not-for-profit
enterprises, and small governmental jurisdictions.
    This rule will not have a significant impact on a substantial
number of small entities because SIP approvals under section 110 and
subchapter I, part D of the CAA do not create any new requirements but
simply approve requirements that the Commonwealth is already imposing.
Therefore, because the federal SIP approval does not create any new
requirements, I certify that this action will not have a significant
economic impact on a substantial number of small entities.
    Moreover, due to the nature of the federal-state relationship under
the CAA, preparation of flexibility analysis would constitute federal
inquiry into the economic reasonableness of state action. The CAA
forbids EPA to base its actions concerning SIPs on such grounds. Union
Electric Co., v. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C.
7410(a)(2).

D. Unfunded Mandates Reform Act (UMRA)

    Under sections 202 of the UMRA of 1995 (``Unfunded Mandates Act''),
signed into law on March 22, 1995, EPA must prepare a budgetary impact
statement to accompany any proposed or final rule that includes a
federal mandate that may result in estimated costs to state, local, or
tribal governments in the aggregate; or to the private sector, of $100
million or more. Under section 205, EPA must select the most cost-
effective and least burdensome alternative that achieves the objectives
of the rule and is consistent with statutory requirements. Section 203
requires EPA to establish a plan for informing and advising any small
governments that may be significantly or uniquely impacted by the rule.
    EPA has determined that today's action does not include a federal
mandate that may result in estimated costs of $100 million or more to
either state, local, or tribal governments in the aggregate, or to the
private sector. This federal action approves pre-existing requirements
under state or local law, and imposes no new requirements. Accordingly,
no additional costs to state, local, or tribal governments, or to the
private sector, result from this action.

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 approves a state rule implementing a federal standard, and does
not alter the relationship or the distribution of power and
responsibilities established in the CAA. Thus, the requirements of
section 6 of the Executive Order do not apply to this rule.

F. Executive Order 13175, 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 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

    Protection of Children from Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is
determined to be ``economically significant'' as defined under
Executive Order 12866, and (2) concerns an environmental health or
safety risk that EPA has reason to believe may have a disproportionate
effect on children. If the regulatory action meets both criteria, the
Agency must evaluate the environmental health or safety effects of the
planned rule on children, and explain why the planned regulation is
preferable to other potentially effective and reasonably feasible
alternatives considered by the Agency.
    This rule is not subject to Executive Order 13045 because it does
not involve decisions intended to mitigate environmental health or
safety risks.

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

    This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (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 (NTTAA)

    Section 12 of the NTTAA of 1995 requires federal agencies to
evaluate existing technical standards when developing a new regulation.
To comply with NTTAA, EPA must consider and use ``voluntary consensus
standards'' (VCS) if available and applicable when developing programs
and policies unless doing so would be inconsistent with applicable law
or otherwise impractical.
    EPA believes that VCS are inapplicable to this action. Today's
action does not require the public to perform activities conducive to
the use of VCS.

J. 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, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).

K. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by May 29, 2012. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review nor does
it extend the time within which a petition for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements. See section 307(b)(2).

List of Subjects in 40 CFR Part 52

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

    Authority:  42 U.S.C. 7401 et seq.

    Dated: March 13, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart S--Kentucky

0
2. Section 52.936 is added to read as follows:

Sec.  52.936  Visibility protection.

    (a) The requirements of section 169A of the Clean Air Act are not
met because the plan does not include approvable measures for meeting
the requirements of 40 CFR 51.308 for protection of visibility in
mandatory Class I federal areas.
    (b) [Reserved]

[FR Doc. 2012-7575 Filed 3-29-12; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 85, Number 197 (Friday, October 9, 2020)]
[Notices]
[Pages 64179-64181]
[FR Doc No: 2020-22373]

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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 34043; 812-15164]

Development Bank of Japan Inc.

October 5, 2020.
AGENCY: Securities and Exchange Commission (the ``Commission'').

ACTION: Notice.

-----------------------------------------------------------------------

    Notice of application for an order under section 6(c) of the
Investment Company Act of 1940 (``Act'') for an exemption from all
provisions of the Act.

Summary of Application: Applicant, a policy and development finance
organization established by the government of Japan (the ``Japanese
Government''), requests an order exempting it from all provisions of
the Act in connection with the offer and sale of its debt securities in
the United States.

Applicant: Development Bank of Japan Inc. (``Applicant'').

Filing Dates: The application was filed on September 25, 2020.

Hearing or Notification of Hearing: An order granting the requested
relief will be issued unless the Commission orders a hearing.
Interested persons may request a hearing by emailing the Commission's
Secretary at<EMAIL_ADDRESS>and serving applicant with a
copy of the request by email. Hearing requests should be received by
the Commission by 5:30 p.m. on October 30, 2020, and should be
accompanied by proof of service on applicant, in the form of an
affidavit or, for lawyers, a certificate of service. Pursuant to rule
0-5 under the Act, hearing requests should state the nature of the
writer's interest, any facts bearing upon the desirability of a hearing
on the matter, the reason for the request, and the issues contested.
Persons who wish to be notified of a hearing may request notification
by emailing the Commission's Secretary at<EMAIL_ADDRESS>
ADDRESSES: The Commission<EMAIL_ADDRESS>Applicant:
<EMAIL_ADDRESS>
FOR FURTHER INFORMATION CONTACT: Jill Ehrlich, Senior Counsel, at (202)
551-6819, or Daniele Marchesani, Assistant Chief Counsel, at (202) 551-
6821 (Division of Investment Management, Chief Counsel's Office).

SUPPLEMENTARY INFORMATION: The following is a summary of the
application. The complete application may be obtained via the
Commission's website by searching for the file number, or applicant
using the Company name box, at http://www.sec.gov/search/search.htm or
by calling<PHONE_NUMBER>.

Applicant's Representations

    1. The Applicant is a policy and development finance organization
established in October 2008 by the Japanese Government pursuant to the
Development Bank of Japan Inc. Act (the ``DBJ Act''). The Applicant's
primary mission is contributing to the sustainable growth of the
Japanese economy, promoting stable and vital financial markets in Japan
and enhancing global competitiveness of Japanese businesses. The
Applicant furthers its mission primarily through the provision of long-
term funding to enterprises and projects generally in line with the
policy objectives of the Japanese Government, through loan financing
and other financing methods (including equity investments).
    2. In serving its mission, the Applicant offers a broad range of
financial products and services to its clients similar to those offered
by Japanese commercial banks. In recent years, the Applicant has also
undertaken specific mandates in two key Japanese Government-sponsored
funding initiatives: (i) ``Crisis Response Operations,'' a program
designed to provide appropriate financing to large- and medium-sized
enterprises that are temporarily experiencing a downturn in business
performance and funding difficulties due to a ``crisis'' such as
turmoil in the domestic or global financial system, large-scale natural
disasters, acts of terrorism or medical epidemics, and (ii) ``Special
Investment Operations,'' a temporary investment program designed to
supplement and encourage private-sector financing to support growth
initiatives of enterprises that contribute to self-reliant development
of regional economies, contribute to development of markets for growth
capital, or promote the competiveness of Japanese enterprises
generally.
    3. As of March 31, 2020, the Applicant's most recently completed
fiscal year end, a majority of the Applicant's assets consisted of
loans and other securities such as equity in other entities and a
variety of debt instruments. Because such loans and securities could be
considered ``investment securities'' within the meaning of section
3(a)(1)(C) of the Act, the Applicant may be considered an investment
company, and it requests an exemption from all provisions of the Act.
    4. The Japanese Government currently owns 100% of the Applicant's
issued share capital. However, the DBJ Act (including successive
amendments thereto) contemplates a plan to fully privatize the
Applicant over time. Specific timing for commencing or completing the
Applicant's privatization has not been determined, and under partial
amendments to the DBJ Act effective in 2015, the Japanese Government is
obligated to hold more than one-half of the total issued share capital
of the Applicant until the

completion of its Special Investment Operations, which is currently
scheduled for March 31, 2031, and more than one-third of the
Applicant's issued share capital for an indefinite period with a view
to ensuring the sufficient and appropriate implementation of the Crisis
Response Operations. The Applicant notes that the anticipated
privatization of the Applicant, as set forth in the DBJ Act, is a part
of broader efforts to reform and streamline policy finance and special
public institutions in Japan, such as the Applicant, that began in the
early 2000s.
    5. As described more fully in the application, the Applicant, as a
development bank, is substantially engaged in banking activity that is
customary for commercial banks in Japan. However, because the Applicant
does not engage in deposit-taking activities, it is not considered a
commercial bank under Japanese law. Despite the formal differences in
applicable rules and regulations, the Applicant believes that it is
subject to a set of regulatory requirements that, in combination with
the Applicant's voluntary policies, are functionally equivalent to that
applied to Japanese commercial banks in terms of the regulation of a
bank's safety and soundness and financial risk exposures. The Applicant
believes the DBJ Act's supervisory provisions, combined with
supplemental oversight by multiple Japanese government agencies and
regulatory authorities and the Applicant's voluntary compliance with
key prudential regulatory metrics, constitute a set of regulatory
protections that meet or exceed those applicable to Japanese commercial
banks. In particular, the Applicant (i) is subject to extensive
oversight, supervision and regulation by the Japanese Government,
primarily by the Minister of Finance and the Commissioner of the
Financial Services Agency (the ``FSA'') (Japan's umbrella financial
regulator and primary bank regulator), including on-site inspections
conducted by the FSA in a manner similar to those conducted for
commercial banks in Japan (i.e., in accordance with principles and
procedures for bank examinations established in FSA guidance
documents), (ii) maintains internal controls and risk management
systems intended to be consistent with expectations set by the FSA,
such as a credit quality ``self-assessment'' system, in line with
domestic industry best practices, and (iii) voluntarily monitors and
controls its balance sheet and risk exposures at levels that meet or
exceed regulatory requirements applicable to Japanese commercial banks
as part of their prudential banking regulation, such as risk-based
capital and leverage requirements under Basel III and credit quality
disclosure standards under Japanese banking law.
    6. The Applicant procures funds by borrowing from the Japanese
Government and private financial institutions, issuing debt securities
in the Japanese and international capital markets and accumulating
funds through its business operations, primarily loan recoveries. The
Applicant uses such funds to extend loans to and make other investments
in primarily Japanese but also international enterprises and projects
in order to fulfill its primary mission. In addition, since the
Applicant's establishment in 2008, the Japanese Government has made
capital contributions in the aggregate amount of [yen]631.0 billion
(approximately $5.8 billion), primarily to fund the Crisis Response
Operations and Special Investment Operations.
    7. The Applicant proposes to issue and sell its debt securities not
guaranteed by the Japanese Government in the United States, including
under its Global Medium Term-Notes (GMTN) program, from time to time.
The Applicant does not intend to offer, issue or sell any securities in
public offerings under the Securities Act of 1933 (the ``Securities
Act''), and any offers or sales of its debt securities in the United
States or to U.S. persons would be made in transactions exempt from the
registration requirements of the Securities Act, including private
placements to institutional accredited investors and transactions in
which the securities may be resold to ``qualified institutional
buyers'' as contemplated by rule 144A under the Securities Act. The
Applicant intends to use the proceeds of any such issuance and sale of
debt securities as an additional source of funding for its general
operations as set forth in the DBJ Act and to extend loans, make
investments and provide advisory and consulting services in line with
its primary mission as a policy and development financial organization.

Applicant's Legal Analysis

    1. Section 3(a)(1)(C) of the Act defines an ``investment company''
to include any issuer engaged in the business of investing,
reinvesting, owning, holding or trading in securities, and that owns or
proposes to acquire investment securities having a value exceeding 40%
of the issuer's total assets. Section 3(a)(2) of the Act defines
``investment securities'' to include all securities except Government
securities, securities issued by employees' securities companies, and
securities issued by majority-owned subsidiaries of the owner which (a)
are not investment companies, and (b) are not relying on the exclusions
from the definition of investment company in section 3(c)(1) or 3(c)(7)
of the Act.
    2. The Applicant states that, as of March 31, 2020, it had total
assets of [yen]17,419,402 million (non-consolidated basis), of which
loans accounted for [yen]12,521,358 million (71.9%) and the Applicant's
securities portfolio for [yen]2,400,948 million (13.8%). Such loans and
securities could be construed as ``investment securities'' within the
meaning of section 3(a)(1)(C) of the Act, thus potentially rendering
the Applicant a prima facie ``investment company'' under the Act. As a
result, the Applicant could be deemed to be an ``investment company''
under section 3(a)(1)(C) of the Act.
    3. Section 6(c) of the Act provides, in relevant part, that the
Commission, by order upon application, may conditionally or
unconditionally exempt any person, security, or transaction from any
provision of the Act, if and to the extent necessary or appropriate in
the public interest and consistent with the protection of investors and
the purposes fairly intended by the policy and provisions of the Act.
    4. Rule 3a-6 under the Act excludes foreign banks from the
definition of an investment company under the Act. A ``foreign bank''
is defined in the rule to include a banking institution ``engaged
substantially in commercial banking activity'' which in turn is defined
to include ``extending commercial and other types of credit, and
accepting demand and other types of deposits.'' The Applicant
represents that it is functionally similar to a ``foreign bank'' as
defined under rule 3a-6, insofar as it (i) offers financial services
and issues financial products similar to those offered and issued by
traditional commercial banks and (ii) is subject to extensive
oversight, supervision and regulation by the Japanese Government.
However, because the Applicant does not engage in deposit-taking
activities, it is not considered a commercial bank under Japanese law.
Therefore, the Applicant states that there is uncertainty as to whether
the rule 3a-6 exemption would be deemed to apply.
    5. The Applicant also believes that the rationale of Congress and
the Commission in promulgating rules under the Act in exempting foreign
financial institutions applies to the Applicant. The Applicant
represents

that it is subject to oversight by a suite of Japanese government
agencies and regulatory authorities, and conducts its operations in a
manner that is at least as rigorous as, if not more rigorous than,
Japanese commercial banks subject to prudential bank regulatory
financial standards. The Applicant is subject to a comprehensive
supervisory and regulatory regime established by the Japanese
Government as described in the application. The Applicant is subject to
the general safety and soundness prudential supervision and regulation
similar to that applicable to commercial banks in Japan pursuant to the
DBJ Act, including on-site inspections conducted by the Commissioner of
the FSA, which is also the primary supervisor of Japanese commercial
banks via delegated authority under the Banking Act of Japan (the
``Banking Act''). The Applicant also complies with certain of
provisions of the Banking Act or the Act on Emergency Measures for the
Revitalization of Financial Functions Act on a voluntary basis in a
manner that is similar to a Japanese commercial bank as part of risk
management processes and methods implemented and maintained by the
Applicant in order to ensure sound and appropriate management of its
operations. Accordingly, the Applicant represents that its operations
do not lend themselves to the abuses against which the Act is directed,
and states that it believes it satisfies the standards for relief under
section 6(c) of the Act.

Applicant's Conditions

    The Applicant agrees that the order granting the requested relief
will be subject to the following conditions:
    1. In connection with any offering by the Applicant of its debt
securities in the United States, the Applicant will appoint an agent in
the United States to accept service of process in any suit, action or
proceeding brought with respect to such debt securities instituted in
any state or federal court in the Borough of Manhattan, The City of New
York, New York. The Applicant will expressly submit to the jurisdiction
of New York State and United States Federal courts sitting in the
Borough of Manhattan, The City of New York, New York with respect to
any such suit, action or proceeding. The Applicant also will waive the
defense of an inconvenient forum to the maintenance of any such action
or proceeding. Such appointment of an agent to accept service of
process and such consent to jurisdiction shall be irrevocable until all
amounts due and to become due in respect thereof have been paid. No
such submission to jurisdiction or appointment of agent for service of
process will affect the right of a holder of any such security to bring
suit in any court which shall have jurisdiction over the Applicant by
virtue of the offer and sale of such securities or otherwise.
    2. The Applicant undertakes to provide to any person to which it
offers its debt securities in the United States disclosure documents
that are at least so comprehensive in their description of the
Applicant and its business as those which may be used by comparable
U.S. issuers in similar U.S. offerings of such securities and that
contain the latest available audited annual financial statements (and,
if available, reviewed interim financial statements) of the Applicant.
The Applicant further undertakes to ensure that any underwriter or
dealer through whom it makes such offers will provide such disclosure
documents to each person to whom such offers are made prior to any sale
of securities to such offeree. Such documents will be updated promptly
to reflect any material change in the Applicant's financial status and
shall be at least as comprehensive as offering memoranda customarily
used in similar offerings in the United States. Any offering of the
Applicant's securities in the United States shall comply with
applicable U.S. securities and anti-fraud laws and regulations.
    3. The Applicant shall rely upon the order so long as (i) the
Applicant's activities conform in all material respects to the
activities described in the application, (ii) the Applicant continues
to be regulated by the Minister of Finance, the FSA or other applicable
Japanese regulatory authorities as a policy and development financial
organization as described in the application, (iii) the Applicant
continues to follow, in all material respects, the voluntary compliance
measures described in the application, (iv) there is no material change
in the Applicant's primary mission or how it is regulated as compared
to today, and (v) the Japanese Government continues to hold at least
10% of the Applicant's issued share capital.

    For the Commission, by the Division of Investment Management,
pursuant to delegated authority.
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-22373 Filed 10-8-20; 8:45 am]
BILLING CODE 8011-01-P