[Federal Register Volume 77, Number 110 (Thursday, June 7, 2012)]
[Rules and Regulations]
[Pages 33642-33659]
[FR Doc No: 2012-13693]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 52

[EPA-HQ-OAR-2011-0729; FRL-9672-9]
RIN 2060-AR05

Regional Haze: Revisions to Provisions Governing Alternatives to
Source-Specific Best Available Retrofit Technology (BART)
Determinations, Limited SIP Disapprovals, and Federal Implementation
Plans

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is finalizing revisions to our rules pertaining to the

regional haze program. In this action, the EPA is finalizing our
finding that the trading programs in the Transport Rule, also known as
the Cross-State Air Pollution Rule (CSAPR), achieve greater reasonable
progress towards the national goal of achieving natural visibility
conditions in Class I areas than source-specific Best Available
Retrofit Technology (BART) in those states covered by the Transport
Rule. In this action, the EPA is also finalizing a limited disapproval
of the regional haze State Implementation Plans (SIPs) that have been
submitted by Alabama, Georgia, Indiana, Iowa, Louisiana, Michigan,
Mississippi, Missouri, North Carolina, Ohio, Pennsylvania, South
Carolina, Virginia and Texas because these states relied on
requirements of the Clean Air Interstate Rule (CAIR) to satisfy certain
regional haze requirements. To address deficiencies in CAIR-dependent
regional haze SIPs, in this action the EPA is promulgating Federal
Implementation Plans (FIPs) to replace reliance on CAIR with reliance
on the Transport Rule in the regional haze SIPs of Georgia, Indiana,
Iowa, Kentucky, Michigan, Missouri, Ohio, Pennsylvania, South Carolina,
Tennessee, Virginia and West Virginia.

DATES: This final rule is effective on August 6, 2012.

ADDRESSES: Docket. The EPA has established a docket for this action
under docket ID No. EPA-HQ-OAR-2011-0729. All documents in the docket
are listed in the www.regulations.gov index. Although listed in the
index, some information is not publicly available, e.g., confidential
business information or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, will be publicly available only in hard copy. Publicly
available docket materials are available either electronically in
www.regulations.gov or in hard copy at the Air and Radiation Docket and
Information Center, EPA/DC, EPA West Building, Room 3334, 1301
Constitution Ave. NW., Washington, DC The Public Reading Room is open
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The telephone number for the Public Reading Room is (202)
566-1744, and the telephone number for the Air Docket is (202) 566-
1742.

FOR FURTHER INFORMATION CONTACT: Ms. Martha Keating, Office of Air
Quality Planning and Standards, Air Quality Policy Division, Mail code
C539-04, Research Triangle Park, NC 27711, telephone<PHONE_NUMBER>;
fax number:<PHONE_NUMBER>; email address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    This action affects state and local air pollution control agencies
located within the geographic areas covered by the Transport Rule \1\
and whose regional haze SIP relied on CAIR \2\ as an alternative to
BART for sulfur dioxide (SO2) and/or nitrogen oxide
(NOX) for electric generating units (EGUs) subject to BART
requirements, or whose regional haze SIP relied on the Transport Rule.
Some of the EGUs located in such geographic areas may also be affected
by this action in that affected states now have the option of not
requiring such EGUs to meet source-specific BART emission limits to
which these EGUs otherwise could be subject.
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    \1\ See Federal Implementation Plans to Reduce Interstate
Transport of Fine Particulate Matter and Ozone, 76 FR 48208 (August
8, 2011).
    \2\ See Rule to Reduce Interstate Transport of Fine Particulate
Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid Rain
Program; Revisions to the NOX SIP Call; Final Rule, 70 FR
25162 (May 12, 2005).
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    These sources are in the following groups:

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         Industry group           SIC \a\                                NAICS \b\
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Electric Services..............      492   221111, 221112, 221113, 221119, 221121, 221122
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\a\ Standard Industrial Classification.
\b\ North American Industry Classification System.

B. Where can I get a copy of this document and other related
information?

    In addition to being available in the docket, an electronic copy of
this notice will be posted at http://www.epa.gov/ttn/oarpg/new.html
under ``Recent Actions.''

C. How is this notice organized?

    The information presented in this notice is organized as follows:

I. General Information
    A. Does this action apply to me?
    B. Where can I get a copy of this document and other related
information?
    C. How is this notice organized?
II. Background and General Legal Considerations for the EPA's Final
Action
    A. Background
    1. Criteria for Developing an Alternative Program to BART
    2. What is the relationship between BART and CAIR?
    3. Remand of CAIR and Implications for State Regional Haze
Implementation Plans
    4. The Transport Rule and Regional Haze SIPs
    B. Summary of the EPA Responses to General and Legal Issues
Raised in Public Comments
    1. Authority for an Alternative Trading Program
    2. Effect of the Transport Rule Stay
    3. Rationale for Disapproval of SIPs Based on CAIR
    4. The Relationship Between a Better-Than-BART Determination and
Reasonable Progress
III. Technical Analysis Supporting the Determination of the
Transport Rule as an Alternative to BART
    A. What analysis did we rely on for our proposed determination?
    1. Application of the Two-Pronged Test
    2. Identification of Affected Class I Areas
    3. Control Scenarios Examined
    4. Emission Projections
    5. Air Quality Modeling Results
    B. Summary of the EPA Responses to Comments on the Technical
Analysis
    1. Comments Related to the Emissions Scenarios Used in the EPA's
Analysis
    2. Identification of Affected Class I Areas
    3. Ozone Season-Only Transport Rule States
    4. Comments Asserting That the EPA Needs To Re-Do the Analysis
IV. Reasonably Attributable Visibility Impairment (RAVI)
    A. What did the EPA propose?
    B. Public Comments Related to RAVI
    C. Final Action on RAVI
V. Limited Disapproval of Certain States' Regional Haze SIPs
    A. What did the EPA propose?
    B. Public Comments Related to Limited Disapprovals
    C. Final Action on Limited Disapprovals
VI. FIPs
    A. What did the EPA propose?
    B. Public Comments on Proposed FIPs
    C. Final Action on FIPs
VII. Regulatory Text
    A. What did the EPA propose?
    B. Clarification of Final Regulatory Text
VIII. Statutory and Executive Order Review
    A. Executive Order 12866: Regulatory Planning and Review and
Executive

Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
    K. Congressional Review Act
IX. Statutory Authority

II. Background and General Legal Considerations for the EPA's Final
Action

A. Background

    Section 169A(b)(2)(A) of the CAA requires states to revise their
SIPs to contain such measures as may be necessary to make reasonable
progress towards the natural visibility goal, including a requirement
that certain categories of existing major stationary sources built
between 1962 and 1977 procure, install, and operate BART as determined
by the state.\3\ Under the Regional Haze Rule, states are directed to
conduct BART determinations for such ``BART-eligible'' sources that may
be anticipated to cause or contribute to any visibility impairment in a
Class I area. Rather than requiring source-specific BART controls,
states also have the flexibility to adopt an emissions trading program
or other alternative program as long as the alternative provides
greater reasonable progress towards improving visibility than BART. 40
CFR 51.308(e)(2). The EPA provided states with this flexibility in the
Regional Haze Rule, adopted in 1999, and further refined the criteria
for assessing whether an alternative program provides for greater
reasonable progress in three subsequent rulemakings. 64 FR 35714 (July
1, 1999); 70 FR 39104 (July 6, 2005); 71 FR 60612 (October 13, 2006).
These criteria are described below.
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    \3\ The preamble to the proposed rule provides additional
background on the visibility requirements of the Clean Air Act and
the EPA's Regional Haze Rule. 76 FR 82221-22.
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1. Criteria for Developing an Alternative Program to BART
    Specific criteria for determining if an alternative measure
achieves greater reasonable progress than source-specific BART are set
out in the Regional Haze Rule at Sec.  51.308(e)(3).\4\ The ``better-
than-BART'' test may be satisfied as follows: If the distribution of
emissions is not substantially different than under BART, and the
alternative measure results in greater emission reductions, then the
alternative measure may be deemed to achieve greater reasonable
progress. If the distribution of emissions is significantly different,
then states are directed to conduct an air quality modeling study to
determine differences in visibility between BART and the alternative
program for each impacted Class I area for the worst and best 20
percent of days.\5\ A test with the following two criteria (the ``two-
pronged visibility test'') would demonstrate ``greater reasonable
progress'' under the alternative program if both prongs of the test are
met:
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    \4\ The Regional Haze Rule also allows for a demonstration that
an alternative program provides for greater reasonable progress to
be based on the clear weight of evidence. 40 CFR 51.308(e)(2)(E). We
concluded that a more general test may be appropriate in certain
circumstances, such as where, for example, technical or data
limitations limit the ability of a state (or the EPA) to undertake a
robust comparison using the test set out in 40 CFR 51.308(e)(3).
    \5\ While the Regional Haze Rule directs the state to conduct
the air quality modeling study, as described in section III.C.2, the
EPA itself conducted such a study for CAIR and through a notice-and-
comment rulemaking codified the conclusion that the stated criteria
were met by adding specific provisions allowing the use of CAIR in
lieu of source-specific BART. We have now done the same for the
Transport Rule.

--Visibility does not decline in any Class I area,\6\ and
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    \6\ The ``decline'' is relative to modeled future baseline
visibility conditions in the absence of any BART or alternative
program control requirements.
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--There is an overall improvement in visibility, determined by
comparing the average differences between BART and the alternative over
all affected Class I areas.
2. What is the relationship between BART and CAIR?
    In May 2005, the EPA published CAIR, which required 28 states and
the District of Columbia to reduce emissions of SO2 and
NOX that significantly contribute to, or interfere with
maintenance of, the 1997 national ambient air quality standards (NAAQS)
for fine particulates and/or ozone in any downwind state. The CAIR
established emission budgets for SO2 and NOX for
states that contribute significantly to nonattainment in downwind
states and required the significantly contributing states to submit SIP
revisions that implemented these budgets. Because such SIP revisions
were already overdue, the EPA subsequently promulgated CAIR FIPs for
the affected states establishing cap and trade programs for EGUs with
opt-in provisions for other sources. States had the flexibility to
subsequently adopt SIP revisions mirroring CAIR requirements or
otherwise providing emission reductions sufficient to address emissions
that significantly contribute to nonattainment or interfere with
maintenance of the NAAQS in other states. Many affected states adopted
CAIR-mirroring SIPs, while others chose to remain under CAIR FIPs.
    As noted above, the Regional Haze Rule allows states to implement
an alternative program in lieu of BART so long as the alternative
program has been demonstrated to achieve greater reasonable progress
toward the national visibility goal than would BART. The EPA made just
such a demonstration for CAIR in revisions to the regional haze program
made in 2005. 70 FR 39104. In those revisions, we amended our
regulations to provide that states participating in the CAIR cap-and-
trade programs under 40 CFR part 96 pursuant to an EPA-approved CAIR
SIP or states that remain subject to a CAIR FIP in 40 CFR part 97 need
not require affected BART-eligible EGUs to install, operate and
maintain BART for emissions of SO2 and NOX. 40
CFR 51.308(e)(4).
    As a result of our determination that CAIR was ``better-than-
BART,'' a number of states in the CAIR region, fully consistent with
our regulations, relied on the CAIR cap-and-trade programs as an
alternative to BART for EGU emissions of SO2 and
NOX in designing their regional haze implementation plans.
These states also relied on CAIR as an element of a long-term strategy
for achieving their reasonable progress goals for their regional haze
programs.
3. Remand of CAIR and Implications for State Regional Haze
Implementation Plans
    Following our determination in 2005 that CAIR was ``better-than-
BART,'' the D.C. Circuit Court ruled on several petitions for review
challenging CAIR on various grounds. As a result of this litigation,
the D.C. Circuit Court remanded CAIR to the EPA but later decided not
to vacate the rule.\7\ The court thereby left CAIR and CAIR FIPs in
place in order to ``temporarily preserve the environmental values
covered by CAIR'' until the EPA replaced it with a rule consistent with
the court's opinion. 550 F.3d at 1178.

On August 8, 2011, EPA promulgated the Transport Rule, which was to
replace CAIR.\8\ As promulgated, the Transport Rule would have
addressed emissions in 2012 and later years and would have left the
requirements of CAIR and the CAIR FIPs in place to address emissions
through the end of 2011. The D.C. Circuit, however, on December 30,
2011, stayed the Transport Rule (including the provisions that would
have sunset CAIR and the CAIR FIPs) and instructed the EPA to continue
to administer CAIR pending the outcome of the court's decision on the
petitions for review challenging the Transport Rule. EME Homer City v.
EPA, No. 11-1302 (Order).
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    \7\ See North Carolina v. EPA, 531 F.3d 896; modified by 550
F.3d 1176 (D.C. Cir. 2008).
    \8\ See Federal Implementation Plans to Reduce Interstate
Transport of Fine Particulate Matter and Ozone. 76 FR 48208.
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    Many states relied on CAIR as an alternative to BART for
SO2 and NOX for subject EGUs, as allowed under
the then-current BART provisions at 40 CFR 51.308(e)(4). These states
also relied on the improvement in visibility expected to result from
controls planned or already installed on sources in order to meet CAIR
provisions in developing their long-term visibility strategy. In
addition, many states relied upon their own CAIR SIPs or the CAIR FIPs
for their states as legal justification for these planned controls and
consequently did not include separate enforceable measures in their
long-term strategies (a required element of a regional haze SIP
submission) to ensure these EGU reductions. These states also submitted
demonstrations showing that no additional controls on EGUs beyond CAIR
would be reasonable for the first 10-year implementation period of the
regional haze program.
    In summary, many of the states in the CAIR-affected region have
based a number of required elements of their regional haze programs on
CAIR. However, as CAIR has been remanded and only remains in place
temporarily, we cannot fully approve these regional haze SIP revisions
that have relied on the now-temporary reductions from CAIR. Although
CAIR is currently in effect as a result of the December 30, 2011 Order
by the U.S. Court of Appeals for the D.C. Circuit staying the Transport
Rule, this does not affect the substance of the D.C. Circuit's ruling
in 2008 remanding CAIR to the EPA.
4. The Transport Rule and Regional Haze SIPs
    The Transport Rule as promulgated would establish Transport Rule
trading programs to replace the CAIR trading programs and would sunset
the requirements of CAIR and the CAIR FIPs. The Transport Rule, as
promulgated, requires 28 states in the eastern half of the United
States to significantly improve air quality by reducing EGU
SO2 and NOX emissions that cross state lines and
significantly contribute to ground-level ozone and/or fine particle
pollution in other states. The rule allows allowance trading among
covered sources, utilizing an allowance market infrastructure modeled
after existing allowance trading programs. The Transport Rule allows
sources to trade emissions allowances with other sources within the
same program (e.g., ozone season NOX) in the same or
different states, while firmly constraining any emissions shifting that
may occur by establishing an emission ceiling for each state.
    In our proposal, we described a technical analysis that we
conducted to determine whether compliance with the Transport Rule would
satisfy regional haze BART-related requirements. This technical
analysis is the basis of this final action in which we are finalizing
our determination that the Transport Rule achieves greater reasonable
progress towards the national goal of achieving natural visibility
conditions than source-specific BART. For this final rule, an updated
sensitivity analysis was conducted to account for subsequent revisions
to certain state budgets in the Transport Rule. This analysis is
described in section III.B.4 of this notice.

B. Summary of the EPA Response to General and Legal Issues Raised in
Public Comments

    The EPA has based its determination that the Transport Rule will
achieve greater reasonable progress than BART on the approach used by
the EPA in evaluating whether a similar program, CAIR, would satisfy
the regional haze BART-related requirements. As noted above, the
Regional Haze Rule, promulgated in 1999, provides states with the
flexibility to adopt an emissions trading program rather than requiring
source-by-source BART. 40 CFR 51.308(e)(2). Some commenters supported
our general approach and agreed that the Transport Rule will provide
for greater reasonable progress. Other commenters, however, disagreed
with our conclusion that the Transport Rule can be used as an
alternative to BART. These commenters argued that we lack authority to
make such a determination and that we cannot rely on the Transport Rule
because of the current stay of that rule, and that the Transport Rule
does not meet the necessary regulatory requirements for an alternative
program in lieu of BART. Some commenters argued that we could not
conclude that the Transport Rule provides for greater reasonable
progress without considering each state's reasonable progress goals.
Other commenters took the position that we should fully approve the
regional haze SIPs that relied on CAIR to satisfy certain regional haze
requirements and that our proposed limited disapproval of the regional
haze SIPs was unnecessary.
1. Authority for an Alternative Trading Program
    As described above, in 2005 (70 FR 39104) the EPA amended its
Regional Haze Rule to provide that states participating in the CAIR
cap-and-trade programs need not require affected BART-eligible EGUs to
install, operate and maintain BART for emissions of SO2 and
NOX. 40 CFR 51.308(e)(4). As EPA noted in explaining its
reasons for adopting this approach, ``[nothing] in the CAA or relevant
case law prohibits a State from considering emissions reductions
required to meet other CAA requirements when determining whether
source-by-source BART controls are necessary to make reasonable
progress. Whatever the origin of the emission reduction requirement,
the relevant question for BART purposes is whether the alternative
program makes greater reasonable progress.'' 70 FR at 39143.
    The EPA's authority to establish non-BART alternatives in the
regional haze program and the specific methodology outlined above for
assessing such alternatives have been previously challenged and upheld
by the D.C. Circuit. In the first case challenging the provisions in
the Regional Haze Rule allowing for states to adopt alternative
programs in lieu of BART, the court affirmed our interpretation of CAA
section 169A(b)(2) as allowing for alternatives to BART where those
alternatives will result in greater reasonable progress than BART.
Center for Energy and Economic Development v. EPA, 398 F.3d 653, 660
(D.C. Cir. 2005) (``CEED'') (finding reasonable the EPA's
interpretation of CAA section 169(a)(2) as requiring BART only as
necessary to make reasonable progress). In the second case, Utility Air
Regulatory Group v. EPA, 471 F.3d 1333 (D.C. Cir. 2006) (``UARG''), the
court specifically upheld our determination that states could rely on
CAIR as an alternative program to BART for EGUs in the CAIR-affected
states. The court concluded that the EPA's two-pronged test for
determining whether an alternative program achieves greater

reasonable progress was a reasonable one and also agreed with EPA that
nothing in the CAA required the EPA to ``impose a separate technology
mandate for sources whose emissions affect Class I areas, rather than
piggy-backing on solutions devised under other statutory categories,
where such solutions meet the statutory requirements.'' Id. at 1340.
    Notwithstanding the decisions of the D.C. Circuit, several
commenters argued that the plain language of the CAA precludes the EPA
from allowing an alternative to BART. In their comments, these groups
claimed that there is no statutory authority to exempt a source from
BART, except as provided for in CAA section 169A(c). Under the
interpretation of the CAA urged by these commenters, BART must be
required at each BART source that causes or contributes to visibility
impairment at any Class I area. The commenters point to recent
decisions post-dating CEED and UARG in support of their arguments.
    The commenters' arguments that the plain language of the CAA
precludes reliance on the Transport Rule to satisfy the BART
requirements were raised in UARG v. EPA and rejected by the D.C.
Circuit when it denied the petitions for review of the EPA's
determination that CAIR provided for greater reasonable progress than
BART. While the commenter argues that the court's decision ``has been
undermined by subsequent D.C. Circuit decisions,'' we disagree. The
decisions cited by the commenter, North Carolina v. EPA, 531 F.3d 896,
906-08 (D.C. Cir. 2008) and NRDC v. EPA, 571 F.3d 1245, 1255-58 (D.C.
Cir. 2009) address the requirements of sections 110(a)(2)(D)(i)(I) and
172(c)(1), respectively. Given the differences between the language of
these statutory provisions and that of section 169A(b)(2), the courts'
interpretation of these other provisions of the CAA do not undermine
the two previous rulings of the D.C. Circuit interpreting the
visibility provisions of the Act. Similarly, the Supreme Court's
conclusions in Massachusetts v. EPA, 549 U.S. 497, 528-29 (2007)
regarding the meanings of ``each'' and ``any'' do not conflict with or
impact the EPA's reading of section 169A(b)(2) of the CAA or the D.C.
Circuit's conclusion that the agency's interpretation of the statute is
a reasonable one. As the CEED court explained, the EPA interprets this
provision to mean that ``each SIP's `emission limits, schedules of
compliance, and other measures' must `include' BART only `as may be
necessary to make reasonable progress toward' national visibility
goals.'' 398 F.3d 653, quoting 42 U.S.C. 7491(b)(2); see also Central
Arizona Water Conservation District v. EPA, 990 F.2d 1531, 1543 (9th
Cir. 1993) (upholding the same interpretation of section 169A(b)(2)).
We do not agree, therefore, that the EPA's regulations allowing for the
adoption of a trading program that provides for greater reasonable
progress than BART in place of source-specific BART are inconsistent
with the CAA.
    These commenters also argue that the EPA can exempt sources from
BART only if the EPA complies with the requirements of CAA section
169A(c)(1). This provision of the CAA allows the EPA to exempt a source
from the BART requirements, by rule, upon a determination that the
source is not reasonably anticipated to cause or contribute to
significant visibility impairment. As the commenters note, the
appropriate Federal Land Manager(s) must agree with the exemption
before it can go into effect.
    We do not agree that the provisions governing exemptions to BART
apply to our determination that the Transport Rule will make greater
reasonable progress than BART. Section 169A(b)(2) of the CAA requires
each visibility SIP to contain ``such emission limits, schedules of
compliance and other measures as may be necessary to make reasonable
progress toward the national goal * * * including * * * a requirement
that [certain major stationary sources] * * * procure, install, and
operate * * * [BART].'' Based on this language, in 1999, the EPA
concluded that if an alternative program can be shown to make greater
reasonable progress toward eliminating or reducing visibility
impairment, then installing BART for the purpose of making reasonable
progress toward the national goal is no longer necessary. This
interpretation of the visibility provisions of the CAA has been upheld
three times by the courts, as noted above.
    We also received comments arguing that the EPA cannot rely on the
Transport Rule as an alternative to BART because the emission
reductions do not meet the requirement of 40 CFR 51.308(e)(2)(iv) which
provides that ``the emission reductions resulting from the emissions
trading program * * * will be surplus to those reductions resulting
from measures adopted to meet requirements of the CAA as of the
baseline date of the SIP.''
    We do not agree with the comments that the emissions reductions
resulting from the Transport Rule must be ``surplus to those measures
adopted to meet requirements of the CAA as of the baseline date of the
SIP.'' We note that the requirements of 40 CFR 51.308(e)(2) are not
directly applicable to this action, as the special provisions in the
Regional Haze Rule addressing the Transport Rule are codified at 40 CFR
51.308(e)(4). Nonetheless, our determination that the Transport Rule
will result in greater visibility improvement than BART is fully
consistent with the requirement in 40 CFR 51.308(e)(2)(iv). In
promulgating the Regional Haze Rule in 1999, the EPA explained that the
``baseline date of the SIP'' in this context means ``the date of the
emissions inventories on which the SIP relies,'' 64 FR 35742, which is
``defined as 2002 for regional haze purposes,'' 70 FR 39143. Any
measure adopted after 2002 is accordingly ``surplus'' under 40 CFR
51.308(e)(2)(iv). This is consistent with the discussion in the
preamble to the 1999 Regional Haze Rule indicating that the regional
haze program ``is being promulgated in a manner that facilitates
integration of emission management strategies for regional haze with
the implementation of programs for [the 1997 ozone and
PM2.5] NAAQS.'' 64 FR 35719. The EPA took this approach in
the Regional Haze Rule to allow measures needed to attain the then new
NAAQS to be ``counted'' as making ``reasonable progress'' toward the
visibility goal. The Transport Rule was adopted to help areas come into
attainment with and maintain the 1997 ozone and PM NAAQS, as well as
the 2006 24-hour PM2.5 NAAQS. The EPA accordingly does not
view the requirement in 40 CFR 51.308(e)(2)(iv) as limiting our ability
to demonstrate that the Transport Rule reductions are surplus, as
defined in the Regional Haze Rule.
2. Effect of the Transport Rule Stay
    Several commenters contended that the EPA cannot rely on the
Transport Rule as a BART alternative because implementation of the rule
has been stayed. These commenters argue that an alternative program in
place of BART must constitute a ``requirement,'' and be enforceable,
and that as long as the Transport Rule is stayed, it cannot qualify as
a ``requirement'' nor can it be enforced. These commenters also claim
that because the rule may change if affirmed only in part, the EPA
cannot find that the Transport Rule will make greater reasonable
progress than BART.
    We do not agree that the EPA cannot rely on the Transport Rule
because of the stay imposed by the D.C. Circuit. We base this
conclusion on both the structure of 40 CFR 51.308(e)(4) and on the
long-term focus of our analysis underlying today's rule.

    Neither our regulations in 2005 addressing CAIR, nor our
regulations in this rule addressing the Transport Rule, require states
to participate in or implement these programs or to otherwise include
enforceable measures in their regional haze SIPs. In 2005, having
determined that CAIR would provide for greater reasonable progress
toward the national goal than would BART, the EPA promulgated
regulations providing that a state participating in one of the CAIR
trading programs ``need not require'' EGUs to put on BART controls.
Similarly, our regulations in this rule provide that a state subject to
a Transport Rule FIP (or approved Transport Rule SIP) need not require
BART controls on its EGUs. Accordingly, today's regulations addressing
the Transport Rule are not ``requirements'' that a state participate in
the interstate transport trading programs. Similarly, a regional haze
SIP or FIP that relies on 40 CFR 51.308(e)(4) does not impose
enforceable requirements on EGUs. However, a state may take advantage
of this provision only if it is subject to an underlying Transport Rule
FIP (or SIP approved as meeting the requirements of the trading
program). We note that the underlying Transport Rule FIP or SIP does
contain the applicable requirements that will ensure that the emissions
reductions from the Transport Rule will occur.
    We also note that while the Transport Rule is not currently
enforceable, the air quality modeling analysis underlying our
determination that the Transport Rule will provide for greater
reasonable progress than BART is based on a forward-looking projection
of emissions in 2014. However, any year up until 2018 (the end of the
first regional haze planning period) would have been an acceptable
basis for comparing the two programs under the Regional Haze Rule. See
40 CFR 51.308(e)(2)(iii). We anticipate that requirements addressing
all significant contribution and interference with maintenance
identified in the Transport Rule will be implemented prior to 2018.
    We do not agree with the comment that because the Transport Rule is
subject to review by the D.C. Circuit, we cannot move ahead with our
determination that it provides for greater reasonable progress than
BART. We do not view the stay imposed by the D.C. Circuit pending
review of the underlying rule as undermining our conclusion that the
Transport Rule will have a greater overall positive impact on
visibility than BART both during the period of the first long-term
strategy for regional haze and going forward into the future. We
recognize, as one commenter suggests, that we may be obliged to revisit
the regional haze plans that rely on the Transport Rule if the rule is
not upheld, or if it is remanded and subsequently revised. However, we
do not consider it appropriate to await the outcome of the D.C.
Circuit's decision on the Transport Rule before moving forward with the
regional haze program as we believe the Transport Rule has a strong
legal basis, and given the judicial decree requiring the EPA to meet
its statutory obligations to have a FIP or an approved SIP meeting the
Regional Haze Rule requirements in place for most states before the end
of 2012.
3. Rationale for Disapproval of SIPs Based on CAIR
    We received comments that our proposed limited disapproval of the
regional haze SIPs that rely on CAIR and the proposed FIPs is not
necessary. Commenters noted that CAIR remains in place and that SIPs
that rely on CAIR are fully consistent with our existing regulations.
Some commenters suggested that we revise the Regional Haze Rule to
allow states to rely on either CAIR or the Transport Rule to meet the
BART requirements.
    While the regional haze program is a long-term program that
requires states to submit SIPs every 10 years to assure continued
reasonable progress toward natural background conditions, the BART
requirements or alternatives to BART must be fully implemented by 2018.
The required establishment of BART limits, or an alternative to BART,
is accordingly undertaken only once. Although CAIR is currently in
place as a result of the D.C. Circuit's stay of the Transport Rule, we
do not anticipate that CAIR will continue in effect indefinitely. As a
result, our determination that CAIR provides for greater reasonable
progress than BART is no longer valid. This is because, as a general
matter, any source required to install BART controls must maintain the
BART control equipment and meet the BART emission limit established in
the SIP so long as the source continues to operate. See 40 CFR
51.308(e). As BART would result in emission reductions going forward
beyond 2018, our determination that CAIR provides for greater
reasonable progress than BART was based on the assumption that the
reductions required by CAIR would be enforceable requirements that
would also apply going forward to 2018 and beyond. That assumption is
no longer appropriate. We are issuing a limited disapproval rather than
a full disapproval, however, to allow the states to rely on the
emission reductions from CAIR for so long as CAIR is in place.
4. The Relationship Between a Better-Than-BART Determination and
Reasonable Progress
    Each state with a Class I area is required to set goals for each
Class I area that provide for reasonable progress towards improving
visibility. There must be one goal for the 20 percent best visibility
days and one goal for the 20 percent worst visibility days. States take
into account a number of factors in establishing reasonable progress
targets, including in some cases an analysis of the measures needed to
achieve the ``uniform rate of progress'' \9\ over the 10-year period of
the SIP and a determination of the reasonableness of such measures. 40
CFR 51.308(d)(1). The Regional Haze Rule does not mandate specific
milestones or rates of progress, but instead calls for states to
establish goals that provide for ``reasonable progress'' toward
achieving natural background conditions.
---------------------------------------------------------------------------

    \9\ For each Class I area, the uniform rate of progress is based
on the calculation of the steady rate of improvement in visibility
needed to achieve natural background conditions by 2064.
---------------------------------------------------------------------------

    Several commenters argued that our determination that the Transport
Rule provides for greater reasonable progress than BART is improper
because it considers BART in isolation, without reference to the
consideration of the reasonable progress goals in the regional haze
plans. These commenters contend that BART is critical to the state's
ability to reach its reasonable progress goals and that the EPA should
have considered the impact of our proposed determination in instances
where the states relied on emissions reductions consistent with
presumptive BART to meet reasonable progress goals.
    The EPA disagrees with the argument that we cannot compare the
visibility improvements from Transport Rule against those from BART
without considering the reasonable progress goals of each affected
regional haze SIP. BART is one measure for addressing visibility
impairment, but it is not ``the mandatory vehicle of choice.'' CEED,
398 F.3d at 660. As such, BART is not a required element of the
regional haze SIPs so long as an appropriate alternative achieves
greater reasonable progress.
    The commenters' suggestion that reasonable progress goals are
defined and that each regional haze SIP must accordingly ensure a
certain rate of progress toward natural visibility also
mischaracterizes the regional haze program. As noted above, the
reasonable

progress goals for each Class I area are set by the states. States,
both in and out of the CAIR region, set their reasonable progress goals
based, in part, on anticipated reductions in emissions due to CAIR. In
setting reasonable progress goals, these states estimated future
emissions in 2018 from a number of sources and source categories,
including emissions from EGUs. For sources in the CAIR region, states
relied on emissions reductions from CAIR--not BART--to estimate future
EGU emissions. As a result, source-specific BART across the CAIR region
is clearly not critical to the states' ability to meet the goals in
their SIPs. For the small handful of states that were not subject to
CAIR but are now subject to the Transport Rule, today's determination
that the Transport Rule provides for greater reasonable progress than
BART gives those states the opportunity to consider revising their
regional haze SIPs to substitute participation in the Transport Rule
for source-specific BART. Whether such a revision meets the
requirements of the Regional Haze Rule, including the requirement that
a plan include such measures as may be necessary to make reasonable
progress toward the national goal, would be addressed in a notice and
comment rulemaking that would provide an opportunity for review of the
adequacy of such an approach. We disagree with the commenters'
statement, however, that source-specific BART as a general matter is
necessary to ensure reasonable progress.

III. Technical Analysis Supporting the Determination of the Transport
Rule as an Alternative to BART

A. What analysis did we rely on for our proposed determination?

    The technical analysis that the EPA relied on for our proposed and
now final determination that the Transport Rule is better than BART is
described in detail in the preamble of the proposed rule and in the
Technical Support Document (TSD).\10\ To provide context for the
summary of the public comments and our responses to them, we are
providing a summary of the technical analysis in the following
sections.
---------------------------------------------------------------------------

    \10\ Technical Support Document for Demonstration of the
Transport Rule as a BART Alternative, Docket EPA-HQ-OAR-2011-0729.
---------------------------------------------------------------------------

1. Application of the Two-Pronged Test
    The two-pronged test for determining if an alternative program
achieves greater reasonable progress than source-specific BART is set
out in the Regional Haze Rule at 40 CFR 51.308(e)(3). The underlying
purpose of both prongs of the test is to assess whether visibility at
Class I areas would be better with the alternative program in place
than without it. Under the first prong, visibility must not decline at
any affected Class I area on either the best 20 percent or the worst 20
percent days as a result of implementing the Transport Rule; and, under
the second prong the 20 percent best and 20 percent worst days should
be considered in determining whether the alternative program under
consideration (in the case of this rulemaking, the Transport Rule)
produces greater average improvement than source-specific BART over all
affected Class I areas. Together, these tests ensure that the
alternative program provides for greater reasonable progress than would
source-specific BART.
    In applying the two-pronged test to the Transport Rule control
scenario and the source-specific BART control scenario, we used a
future (2014) projected baseline. The 2014 baseline does not include
the Transport Rule, BART, or CAIR control programs. As described in the
preamble to the proposed rule, the 2014 baseline allows a comparison of
visibility conditions as they are expected to be at the time of the
program implementation, but in the absence of the program. This ensures
that the visibility improvement or possible degradation is due to the
programs being compared--source-specific BART and the Transport Rule
alternative--and not to other extrinsic factors. Also, under the
Regional Haze Rule any program adopted after 2002 is considered
``surplus'' and eligible to be counted as all or part of an alternative
program in place of BART.
2. Identification of Affected Class I Areas
    As described above, under the second prong of the test, the
visibility comparison is over all ``affected'' Class I areas. The EPA
added the term ``affected'' to clarify that visibility need not be
evaluated nationwide. 71 FR 60620. We considered two approaches to
identify the Class I areas ``affected'' by the Transport Rule as an
alternative control program to source-specific BART. First, we
identified 140 Class I areas represented by 96 Interagency Monitoring
of Protected Visual Environments (IMPROVE) monitors in the 48
contiguous states with sufficiently complete monitoring data available
to support the analysis. In the first ``eastern'' approach, we
identified as affected Class I areas the 60 Class I areas contained in
the eastern portion of the Transport Rule modeling domain. The second
approach we considered was a ``national'' approach in which visibility
impacts on 140 Class I areas across the 48 contiguous states were
evaluated (including the 60 contained within the Transport Rule
region). Consideration of this national region accounted for the
possibility that the Transport Rule might have the effect of increasing
EGU emissions in the most western portion of the United States due to
shifts in electricity generation or other market effects. We noted that
the ``eastern'' Transport Rule modeling grid used a horizontal
resolution of 12 km (all 60 ``eastern'' Class I areas were contained
within the 12 km grid). The modeling grid for areas outside of the
eastern Transport Rule region used a more coarse horizontal resolution
of 36 km.
    We requested comment on whether the ``affected Class I areas''
should be considered to be the 60 Class I areas located in the
Transport Rule eastern modeling domain, the larger set of 140 Class I
areas in the larger national domain, or some other set. We noted that
given the modeling results, the choice between the 60 Class I areas or
the 140 Class I areas did not affect our proposed conclusion that both
prongs of the two-pronged test are met.
3. Control Scenarios Examined
    The Transport Rule requires 28 states in the eastern half of the
United States to reduce EGU SO2 and NOX emissions
that cross state lines and contribute to ground-level ozone and fine
particle pollution in other states. BART, on the other hand, is
applicable nationwide and covers 26 industrial categories, including
EGUs, of a certain vintage. In our comparison, we sought to determine
whether the Transport Rule cap-and-trade program for EGUs will achieve
greater reasonable progress than would BART for EGUs only. Therefore,
we examined two relevant control scenarios. The first control scenario
examined SO2 and NOX emissions from all EGUs
nationwide after the application of BART controls to all BART-eligible
EGUs (``Nationwide BART''). In the second scenario, EGU SO2
and NOX emissions reductions attributable to the Transport
Rule were applied in the Transport Rule region and BART controls were
applied to all BART-eligible EGUS outside the Transport Rule region
(``Transport Rule + BART elsewhere''). For the first prong of the test,
the ``Transport Rule + BART elsewhere'' scenario was compared to the
2014 future year base case. The comparison to the 2014 future year
``Base Case'' allows the EPA to ensure that the Transport Rule would
not cause degradation in visibility from conditions predicted for the
year 2014 in the

absence of the Transport Rule, BART and CAIR.
    For both the ``Nationwide BART'' scenario and the ``Transport Rule
+ BART elsewhere'' scenario, we modeled the presumptive EGU BART limits
for SO2 and NOX emission rates as specified in
the BART Guidelines (Guidelines for BART Determinations Under the
Regional Haze Rule, 70 FR 39104, July 6, 2005), unless an actual
emission rate at a given unit with existing controls is lower. In the
latter case, we modeled the lower emission rates. Our analysis assumed
that all BART-eligible EGUs were actually subject to BART requirements
and that presumptive BART limits would be applied to 100 megawatt (MW)
EGUs for SO2 and 25 MW EGUs for NOX, regardless
of the magnitude of their annual total emissions. In our analysis, in
both scenarios we constrained certain EGUs by emission limits other
than presumptive limits due to a proposed or final regional haze SIP, a
proposed or final regional haze FIP, a final consent decree, or state
rules. Where we had evidence of more stringent emission limits than the
presumptive BART limits, we used them. These units and their emission
limits are detailed in the TSD.
    There are five states that are subject to the Transport Rule
requirements during the ozone season only (Oklahoma, Arkansas,
Louisiana, Mississippi and Florida). For these states, in the
``Transport Rule + BART elsewhere'' scenario post-combustion
NOX controls were assumed to operate outside of the ozone
season only when required to do so for a reason other than Transport
Rule requirements, e.g., a permit condition or a provision of a consent
decree. In the ``National BART'' scenario, BART NOX controls
were assumed to operate year-round.
4. Emission Projections
    To estimate emissions expected from the scenarios described in
section IV, we used the Integrated Planning Model (IPM).\11\ The IPM
was used in this case to evaluate the emissions impacts of the
described scenarios limiting the emissions of SO2 and
NOX from EGUs. The IPM projections of annual NOX
and SO2 emissions from EGUs for the ``Transport Rule + BART
elsewhere'' control scenario were used as inputs to the air quality
model to assess the visibility impacts of the emission changes. The IPM
projections were based on the state budgets prescribed in the final
Transport Rule published on August 8, 2011, and the supplemental
proposal published on July 11, 2011.\12\ We noted that on October 14,
2011, the EPA issued a proposed notice that would increase
NOX and SO2 budgets for certain states in
accordance with revisions to certain unit-level input data. 76 FR
63860. We requested comment on the potential effect of the proposed
increases to state budgets. We noted that even with the proposed
increases to certain state budgets, we believed that the two-pronged
test is satisfied given the still-substantial reductions in emissions
under the Transport Rule.
---------------------------------------------------------------------------

    \11\ Extensive documentation of the IPM platform may be found at
http://www.epa.gov/airmarkets/progsregs/epa-ipm/transport.html.
    \12\ See Federal Implementation Plans To Reduce Interstate
Transport of Fine Particulate Matter and Ozone 76 FR 48208 (August
8, 2011). The ozone season state budgets for the states affected by
the supplemental proposal published on July 11, 2001 (76 FR 40662)
are included in the ``Transport Rule + BART elsewhere'' control
scenario.
---------------------------------------------------------------------------

5. Air Quality Modeling Results
    To assess the air quality metrics that are part of the two-pronged
test, we used the IPM emission projections as inputs, to an air quality
model to determine the impact of ``Transport Rule + BART elsewhere''
and ``Nationwide BART'' controls on visibility in the affected Class I
areas. To project air quality impacts we used the Comprehensive Air
Quality Model with Extension (CAMx) version 5.3. The air quality
modeling analysis and related analyses to project visibility
improvement are described in more detail in the TSD for the Transport
Rule.\13\ The visibility projections for each Class I area are
presented in the TSD for our proposed action.
---------------------------------------------------------------------------

    \13\ See Air Quality Modeling Final Rule Technical Support
Document, U.S. EPA, June 2011, which is found at: http://www.epa.gov/airtransport/pdfs/AQModeling.pdf.
---------------------------------------------------------------------------

    We proposed that the ``Transport Rule + BART elsewhere'' control
scenario passed the first prong of the visibility test considering
affected Class I areas located in both the ``eastern'' region of 60
Class I areas and the ``national'' region of 140 Class I areas We also
proposed our determination that the ``Transport Rule + BART elsewhere''
alternative measure passed the second prong of the test that assesses
whether the alternative results in greater average visibility
improvement at affected Class I areas compared to the ``Nationwide
BART'' scenario. The ``Transport Rule + BART elsewhere'' alternative
passed the second prong of the test, regardless of which way affected
Class I areas are identified.

B. Summary of the EPA Responses to Comments on the Technical Analysis

    Many comments supported the EPA's technical analysis and our
determination that the Transport Rule satisfies the requirements for an
alternative to source-specific BART. Other commenters raised objections
to the EPA's determination. Some of these were general legal objections
related to the EPA's legal authority for its action and its
interpretation of authorizing regulations and statutes. The EPA's
response to those general legal objections is discussed above in
section III.A. Other objections raised technical issues related to the
EPA's emissions and air quality modeling scenarios that were used to
compare the results of the Transport Rule control scenario with the
source-specific BART control scenario. In this section of the preamble
we provide an overview of the EPA's review of these technical comments.
Our responses are discussed in detail in the Response to Comments
document, which is included in the docket for this rulemaking.
1. Comments Related to the Emissions Scenarios Used in the EPA's
Analysis
    As noted above, the EPA developed two emissions scenarios: A 2014
``Nationwide BART'' scenario and a 2014 ``Transport Rule + BART
elsewhere'' scenario. Nationwide emissions were substantially lower
under the ``Transport Rule + BART elsewhere'' scenario. Some commenters
asserted that the emissions results for these two scenarios were skewed
in favor of the Transport Rule. These commenters asserted that the EPA
underestimated the emissions reductions from BART, and overestimated
the emission reductions from the Transport Rule. These commenters raise
issues generally with the use of presumptive BART limits in the
``Nationwide BART'' scenario and questioned whether the EPA correctly
applied the presumptive BART limits.
    The EPA disagrees with commenters asserting that the presumptive
BART limits were inappropriate for use in this analysis. While the EPA
recognizes that a case-by-case BART analysis may, in some source-
specific assessments, result in emission limits more stringent than the
presumptive limits, these limits are reasonable and appropriate for use
in assessing regional emissions reductions from the BART scenario. This
has been the EPA position since 2005. 71 FR 60619 (``the presumptions
represent a reasonable estimate of a stringent case BART * * * because
* * * they would be applied across the board to a wide

variety of units with varying impacts on visibility, at power plants of
varying size and distance from Class I areas''). Moreover, as discussed
in detail in the Response to Comment document, the EPA believes that
these comments overestimate the emissions reductions that would be
associated with case-by-case BART because the commenters' assertions of
``best'' technology for BART ignore other factors, including cost of
control and resulting visibility improvement, that are critical
components of a source-specific BART analysis.
    The EPA also received numerous comments concerning specific units
for which the commenters believed the BART limits for SO2
had been incorrectly applied in IPM. Our review of these comments,
which is presented in detail in the Response to Comments document,
shows that (with minor exceptions) the EPA correctly applied these
presumptive limits. After reviewing these comments and the IPM outputs,
we conclude that many of these comments stemmed from an apparent
misunderstanding of the EPA's application of the presumptive limits in
IPM. Some of the unit-level comments pertained to units less than 100
MW for which the presumptive limits did not apply. Other comments
pertained to units that did not meet both the 95 percent removal
efficiency and the 0.15 lb/MMBtu rate. For BART-affected units greater
than or equal to 100 MW, the EPA's IPM modeling required that they meet
a SO2 emission rate limit of 0.15 lbs/MMBtu or a removal
efficiency of 95 percent. As sources are only required to comply with
one of these metrics (emission rate or percent removal), the IPM
correctly determined that some BART sources could comply with an
emission rate higher than 0.15 lb/MMBtu (while meeting the 95 percent
FGD removal efficiency requirement) and some could comply with a
removal efficiency less than 95 percent (while meeting the emission
rate requirement).
    The EPA also disagrees with the commenters' assertion that our
application of presumptive limits for NOX should have
provided for the installation of add-on equipment such as selective
catalytic reduction (SCR). For all types of boilers other than cyclone
units, the presumptive NOX limits in the EPA's BART
guidelines are based only on the use of current combustion control
technology including low NOX burners, over-fire air, and
coal reburning.\14\ 70 FR 39134.
---------------------------------------------------------------------------

    \14\ The EPA notes that a BART determination made under the
regional haze program is distinct from a best available control
technology (BACT) determination made under the prevention of
significant deterioration (PSD) program. 42 U.S.C. 7475. The fact
that a control technology has been determined to be BART does not
mean that the same controls would be found to meet the requirements
for BACT.
---------------------------------------------------------------------------

    Finally, the EPA disagrees with commenters who expressed concerns
that the ``no-CAIR'' base case was inappropriate for use in this
analysis. The EPA agrees with commenters' observation that the 2014
base case leads to emission increases relative to current emissions.
However, as explained in detail in the preamble to the final Transport
Rule, the EPA believes this is a reasonable and appropriate case to use
for estimating emissions reductions that are attributable to the
Transport Rule, and for estimating air quality concentrations in
absence of the Transport Rule. 76 FR 48223.
2. Identification of Affected Class I Areas
    Under the Regional Haze Rule, the reasonable progress achieved by
an alternative program in ``affected Class I areas'' is compared to the
reasonable progress achieved by source-specific BART. In our proposal,
the EPA requested comment on whether the ``affected Class I areas''
should be considered to be (1) The 60 Class I areas located in the
Transport Rule eastern modeling domain, (2) the larger set of 140 Class
I areas, or (3) some other set. We noted that our air quality modeling
results showed that the choice between the 60 Class I areas or the 140
Class I areas did not affect our proposed conclusion that both prongs
of the two-pronged test are met.
    Some commenters agreed that the EPA can properly rely on an
assessment of the 60 Class I areas without referring to the results of
the additional 80 Class I areas. These commenters noted, as did the
EPA, that because both assessment approaches support the Transport Rule
as a lawful and reasonable BART alternative, the EPA may appropriately
confirm its determination based on either approach. Other commenters
argued that the EPA improperly averaged across all Class I areas. These
commenters argued that both the 60 Class I area region and the 140
Class I area region are too broad. These commenters presented
information illustrating the ``Nationwide BART'' scenario to be
superior to the Transport Rule alternative if the EPA averaged
visibility improvement at the 27 Class I areas west of the Mississippi
River but east of the Rocky Mountains. These commenters asserted that
the EPA should not average across states, but rather should assume
Transport Rule changes in one state at a time, and average the results
for areas in (and nearby) that state.
    The EPA agrees with comments supporting our approach to identifying
the ``affected'' Class I areas. The EPA agrees that in either case, the
analysis shows that the two-pronged test for determining a BART
alternative is satisfied. The EPA does not agree that it is necessary
to evaluate results for a sub-region such as the 27 Class I areas
suggested by some commenters. Given that the Transport Rule affects
emissions and air quality over a large region, the EPA believes it is
reasonable to consider that entire region in evaluating the Class I
areas that are also ``affected'' by this rule. The possibility of
greater visibility improvement due to source-specific BART in specific
Class I areas within the region of ``affected Class I areas'' is
inherent to the two-pronged test that has been upheld by the D.C.
Circuit Court. As long as the average visibility improves over the
entire region and no Class I area experiences degradation, the
alternative is an appropriate and approvable alternative to source-
specific BART. See 471 F.3d 1333 (D.C. Cir. 2006) (``UARG'') (``nothing
in Sec.  169A(b)'s `reasonable progress' language requires as least as
much improvement in each and every individual area as BART itself would
achieve'').
3. Ozone Season-Only Transport Rule States
    Some commenters noted that five states--Arkansas, Florida,
Louisiana, Mississippi and Oklahoma--are covered by the Transport Rule
ozone season only, and thus these states are only required to hold
allowances and limit statewide NOX emissions during May
through September. Commenters expressed concerns that while imposition
of BART would require year-round operation of NOX controls,
under the Transport Rule there would be no assurance that
NOX emission controls would operate during the remaining 7
months of the year. Accordingly, the commenters asserted that for these
states the Transport Rule is not ``better than BART'' because it would
allow for a potential degradation during these months, and thus the EPA
should consider the Transport Rule to fail the first prong of the two-
pronged test.
    The EPA carefully considered this comment, and we reviewed the
results of our technical analysis to evaluate whether such seasonal
differences could occur. For programs which regulate ozone season
NOX only, seasonal differences in the emissions rate (lb/

MMBtu) can be seen where a source installs post-combustion controls
such as selective catalytic reduction (SCR) or selective non-catalytic
reduction (SNCR). It is probable that source owners would not operate
the controls in non-ozone season months to avoid the extra cost of
control. These effects are indeed seen in the data reported to the EPA.
However, where a program results in the imposition of combustion
controls such as low-NOX burners and overfire air, the
controls are an integral part of the operational design of the EGU.
Accordingly, where combustion controls are installed in response to an
ozone season-only requirement, the EPA does not expect to see seasonal
differences in the lb/MMBtu NOX emission rate.
    Our review of the IPM predictions of how EGUs are likely to comply
with the Transport Rule indicated that in the ``Transport Rule + BART
elsewhere'' scenario, NOX control in the five ozone season-
only states is achieved predominantly by combustion controls rather
than post-combustion controls. In the Transport Rule scenario, for four
of the five states (Arkansas, Louisiana, Mississippi and Oklahoma), the
EPA projects that any additional NOX controls resulting from
the Transport Rule would be combustion controls only. Furthermore, as
explained above, for the ``Nationwide BART'' control scenario we
applied the presumptive NOX limits to all BART-eligible
sources nationwide that were not already equipped with post-combustion
controls. According to the EPA's BART guidelines, for all types of
boilers other than cyclone units the presumptive BART limits for
NOX are based on the use of current combustion control
technology.\15\ 70 FR 39134. For BART sources already equipped with
post-combustion controls, we assumed under BART those controls would
operate year-round. Therefore, the ``Nationwide BART'' scenario would
result in generally uniform emission rates throughout the year in the
five ozone season-only states. As a result, with the exception of
Florida, there is no seasonal difference in NOX emission
rates between the ``Transport Rule + BART-elsewhere'' scenario and the
``Nationwide BART'' scenario. In Florida, the one instance where IPM
indicates a season-dependent difference between the two control
scenarios, there are some EGUs with existing post-combustion controls
(SCR) that the EPA projects would not operate at all unless
incentivized to do so by either a source-specific BART requirement or
by the Transport Rule, and under the Transport Rule would operate only
during the ozone season. Our analysis of the two scenarios
appropriately considered this seasonal difference by accounting for
higher NOX emissions from those Florida units outside of the
ozone season when these controls are projected not to operate in the
``Transport Rule + BART elsewhere'' scenario. That is, our analysis
assumed that post-combustion NOX controls would operate
year-round under the ``Nationwide BART'' scenario and only during May
through September in the ``Transport Rule + BART elsewhere'' scenario.
When we analyzed the overall regional emissions reductions under the
two scenarios, this did not affect our conclusion that the two-pronged
test was satisfied. This outcome is very understandable because over a
geographic region this small relative decrease during part of the year
in emissions of NOX in the ``Transport Rule + BART
elsewhere'' scenario compared to the ``Nationwide BART'' scenario has
much less effect than the visibility improvement attributable to the
very large relative decrease in SO2 emissions between the
two scenarios.
---------------------------------------------------------------------------

    \15\ There are no coal-fired cyclone units located in any of the
five ozone season-only states so the presumptive limits for cyclone
units do not apply.
---------------------------------------------------------------------------

    Finally, the EPA notes that in a previous rulemaking that
established that CAIR was ``better-than-BART'' it was also the case
that some states subject to CAIR were subject only to ozone-season
NOX budgets. In that rulemaking, our air quality analysis
had similar results and our final rule established that the CAIR could
be relied upon as an alternative to source-specific BART for those
states.
4. Comments Asserting That the EPA Needs To Re-Do the Analysis
    Some commenters asserted that the EPA could not issue a final
determination that the Transport Rule achieves greater reasonable
progress than BART without conducting a new modeling analysis that
would correct an error in the emissions for the ``Nationwide BART''
scenario and that would take into account certain adjustments that the
EPA made to some state budgets under the Transport Rule after the air
quality modeling runs were completed. Specifically, the commenters
noted that the EPA acknowledged in the TSD for the proposal that the
emissions analysis for the ``Nationwide BART'' scenario should have,
but did not, apply presumptive BART controls on BART-eligible Gerald
Gentleman Unit 2 and that the EPA acknowledged that the Transport Rule
scenario in the analysis did not take into account budget revisions for
a number of states that were published or proposed subsequent to the
promulgation of the Transport Rule in August 2011. The commenters
believe that because of these two acknowledged discrepancies in the
emissions values used in the air quality modeling for the two
scenarios, in combination with additional alleged errors, the EPA
cannot issue a final determination unless and until a new analysis is
conducted that takes these discrepancies into account.
    The EPA disagrees that a re-analysis of the two-pronged test using
new air quality modeling is necessary. As noted in the TSD, the EPA
does not believe that the omission of Gerald Gentleman Unit 2 from the
BART-eligible inventory of 489 units would affect the outcome of our
national analysis.\16\ This is because the emission reductions from a
single EGU in the BART control scenario would not change the average
visibility improvement across all affected Class I areas, which is the
basis for our determination. The SO2 emission reduction in
question (roughly 12,000 tons of SO2 per year) represents a
relatively small emission change compared to the emissions from the
area encompassed by Nebraska and the surrounding six states. Our
response to other alleged errors in the BART inventory is presented in
the Response to Comment document.
---------------------------------------------------------------------------

    \16\ Technical Support Document for Demonstration of the
Transport Rule as a BART Alternative, Docket EPA-HQ-OAR-2011-0729.
p. 10.
---------------------------------------------------------------------------

    With respect to revisions in state budgets, as we discussed in the
TSD accompanying the December 30, 2011 proposal, the post-analysis
increases in the state budgets under the Transport Rule had a
relatively small impact on the emissions comparison between the two
scenarios. 76 FR 8227. We note that in addition to the Transport Rule
revisions we discussed in the proposed rule, there have been proposed
subsequent adjustments to state budgets. On February 21, 2012, based on
comments received on its previous rulemaking proposal, the EPA
published revisions to 2012 and 2014 state budgets in Arkansas,
Georgia, Indiana, Kansas, Louisiana, Mississippi, Missouri, New York,
Nebraska, Ohio, Oklahoma, South Carolina and Texas, along with
revisions to new unit set-asides in Arkansas, Louisiana and Missouri.
77 FR 10342 and 77 FR 10350.\17\ While

individual state adjustments vary, overall, the total budget increase
over the entire Transport Rule region is very small. The EPA believes
it is a reasonable expectation that these adjustments would lead to
very small impacts on annual and 24-hour PM2.5
concentrations and, as a consequence, would not have a meaningful
impact on the two-pronged test satisfied by the analysis conducted for
this rule. A technical analysis of these adjustments may be found in
the docket (Docket ID No. EPA-HQ-OAR-2011-0729: Sensitivity Analysis
Accounting for Increases in Texas and Georgia Transport Rule State
Budgets).
---------------------------------------------------------------------------

    \17\ These revisions were originally published in a direct final
rule on February 21, 2012. 77 FR 10342. The EPA published a parallel
proposal simultaneously with the direct final rule and indicated it
would withdraw the direct final rule if it received adverse comment.
The EPA received adverse comments and on May 16, 2012 published a
notice withdrawing the direct final rule before it went into effect.
77 FR 28785. As indicated in the parallel proposal, the EPA intends
to take final action on the parallel proposal without providing an
additional opportunity for public comment. 77 FR 10350.
---------------------------------------------------------------------------

    After reviewing the public comments on the proposed rule, the EPA
is finalizing its finding that the Transport Rule trading programs will
provide greater progress towards regional haze goals than source-
specific BART. This finding is based on the results of the two-pronged
test for an alternative program. In this case, our analysis
demonstrated that the trading programs of the Transport Rule do not
cause degradation in any affected Class I area, thus passing the first
prong of the test. The second prong of the test assesses whether the
``Transport Rule + BART elsewhere'' scenario results in greater average
visibility improvement at affected Class I areas compared to the
``Nationwide BART'' scenario. The average visibility improvement of the
``Transport Rule + BART elsewhere'' alternative was greater than
``Nationwide BART'' on both the 20 percent best and 20 percent worst
days, thus passing the second prong of the test. The determination that
the Transport Rule trading programs will provide greater progress
towards regional haze goals than source-specific BART applies only to
EGUs in the Transport Rule trading programs and only for pollutants
covered by the programs in each state. Accordingly, we are revising 40
CFR 51.308(e)(4) by essentially replacing the name of the CAIR with the
name of the Transport Rule.
    We are also finalizing our proposal that a state that chooses to
meet the emissions reduction requirements of the Transport Rule by
submitting a complete SIP revision that is approved as meeting the
requirements of 40 CFR 52.38 and/or 52.39 also need not require BART-
eligible EGUs in the state to install, operate and maintain BART for
the pollutants covered by such a trading program in the state.
    The results of the ``Transport Rule + BART elsewhere'' control
scenario analysis demonstrate that the use of NOX controls
during ozone season only, in the states for which this Transport Rule
requirement applies, results in greater visibility improvement than
source-specific BART for NOX. Thus, we are finalizing our
proposal that a state in the Transport Rule region whose EGUs are
subject to the requirements of the Transport Rule trading program only
for ozone season NOX is allowed to rely on our determination
that the Transport Rule makes greater reasonable progress than source-
specific BART for NOX. The states to which this aspect of
our final rule applies are Arkansas, Florida, Louisiana, Mississippi
and Oklahoma.

IV. Reasonably Attributable Visibility Impairment (RAVI)

A. What did the EPA propose?

    We proposed to preserve the language in the regional haze
regulations at 40 CFR 51.308(e)(4) that allows states to include in
their SIPs geographic enhancements to the trading program to address a
situation where BART is required based on RAVI at a Class I area.\18\
---------------------------------------------------------------------------

    \18\ A geographic enhancement is a method, procedure, or process
to allow a broad regional strategy, such as the Transport Rule cap-
and-trade program, to satisfy BART for reasonable attributable
impairment. For example, it could consist of a methodology for
adjusting allowance allocations at a source which is required to
install BART controls.
---------------------------------------------------------------------------

B. Public Comments Related to RAVI

    We received comments recommending that we explicitly state that the
Transport Rule as an alternative to BART does not replace the BART
analysis that is required to address RAVI certification. The commenter
contends that the BART determination for RAVI needs to address the
impairment at the specific Class I area or areas, a requirement that is
not addressed by the demonstration of regionally-averaged visibility
improvement. Other commenters agreed that RAVI BART is critical to
remedying existing impairment and must be implemented. This commenter
also pointed out that RAVI BART is reactive as it requires FLM to
voluntarily take action to address an existing problem. As such, RAVI
BART will not result in proactive permitting to avoid degradation and
it cannot be relied on to prevent hot spots. Furthermore, according to
this commenter, the EPA in its finding that CAIR was better-than-BART
explained that even under a BART alternative ``* * * CAA section
169A(b)(2)'s trigger for BART based on impairment at any Class I area
remains in effect, because a source may become subject to BART based on
`reasonably attributable visibility impairment' at any area'' (citing
40 CFR 51.302).
    The EPA proposed to leave unchanged the existing regulatory
language regarding geographic enhancements. The purpose of this
language is to allow a market-based system to accommodate actions taken
under the RAVI provisions. The EPA first adopted such language in the
1999 Regional Haze Rule, 64 FR 35757, and used it again in issuing
regulations addressing our determination that CAIR provides for greater
reasonable progress than BART, 70 FR 39156, and again in issuing
regulations addressing trading program alternatives to BART in general,
71 FR 60612, 60627. In light of the fact that our proposal did not
request comment on the interplay of the RAVI requirements in 40 CFR
51.302-306 with the requirements of the Regional Haze Rule, we are not
adopting any clarifying interpretation at this time. As a result, this
rulemaking alters neither the authority of a federal land manager to
certify reasonably attributable visibility impairment nor the
obligation of states (or EPA) to respond to a RAVI certification under
40 CFR Part 51 Subpart P (Protection of Visibility). We expect at a
later date to clarify the scope of the RAVI requirements through a rule
amendment, general guidance, or action on a SIP or FIP in the context
of a specific RAVI case.\19\ Whatever the form, we intend to provide an
opportunity for public comment before applying a new interpretation.
---------------------------------------------------------------------------

    \19\ A RAVI certification has been made for the Sherbourne
County Generating Station (Sherco) in Minnesota, by the Department
of the Interior on October 21, 2009.
---------------------------------------------------------------------------

C. Final Action on RAVI

    In this final action we are preserving the language in the regional
haze regulations at 40 CFR 51.308(e)(4) that allows states to include
in their SIPs geographic enhancements to the trading program to
accommodate a situation where BART is required based on RAVI at a Class
I area. We are not adopting any clarifying interpretation of this
language at this time, but we expect at a later date to clarify the
scope of the RAVI requirements through a rule amendment, general
guidance, or action on a SIP or FIP in the context of a specific RAVI
case.

V. Limited Disapproval of Certain States' Regional Haze SIPs

A. What did the EPA propose?

    We proposed a limited disapproval of the regional haze SIPs that
have been submitted by Alabama, Florida, Georgia, Indiana, Iowa,
Louisiana, Michigan, Mississippi, Missouri, North Carolina, Ohio,
Pennsylvania, South Carolina, and Texas. In separate notices, the EPA
also has proposed a limited disapproval of the regional haze SIP
submitted by Virginia that relied on CAIR (77 FR 3691), and has
finalized a limited disapproval of the regional haze SIPs submitted by
Kentucky (77 FR 19098), Tennessee (77 FR 24392), and West Virginia (77
FR 16937). These states, fully consistent with the EPA's regulations at
the time, relied on CAIR requirements to satisfy the BART requirement
and the requirement for a long-term strategy sufficient to achieve the
state-adopted reasonable progress goals.
    We did not propose to disapprove the reasonable progress targets
for 2018 that have been set by the states in their SIPs. The reasonable
progress goals in the SIPs were set based on modeled projections of
future conditions that were developed using the best available
information at the time the analysis was done. Given the requirement in
40 CFR 51.308(d)(1)(vi) that states must take into account the
visibility improvement that is expected to result from the
implementation of other Clean Air Act requirements, states set their
reasonable progress goals based, in part, on the emission reductions
expected to be achieved by CAIR. As CAIR has now been remanded by the
D.C. Circuit, the assumptions underlying the development of the
reasonable progress targets have changed; however, because the overall
EGU emission reductions from the Transport Rule are larger than the EGU
emission reductions that would have been achieved by CAIR, we expect
the Transport Rule to provide similar or greater benefits than CAIR. In
addition, unlike the enforceable emissions limitations and other
enforceable measures in the long-term strategy, see 64 FR 35733,
reasonable progress goals are not enforceable measures. Given these
considerations, we concluded not to propose disapproval of the
reasonable progress goals in any of the regional haze SIPs that relied
on CAIR. We noted our intent to act on the remaining elements of the
SIP for each state in a separate notice.

B. Public Comments Related to Limited Disapprovals

    Several commenters seem to have interpreted our statement that the
EPA was not proposing to disapprove the reasonable progress goals set
by affected states to mean that the EPA had proposed to determine that
these reasonable progress goals meet the requirements of the Regional
Haze Rule. The commenters stated that the EPA cannot reasonably
conclude that the Transport Rule achieves reasonable progress. As noted
in the proposal, we intend to evaluate the reasonable progress goals
for each state when taking action on the remaining elements of their
regional haze SIPs. As explained above, we do not consider the remand
of CAIR to provide a basis for disapproving the reasonable progress
goals set by the states. That determination, however, does not indicate
that we intend to approve the targets set by the states without any
further consideration. In addition, while we have concluded that the
Transport Rule achieves greater reasonable progress than BART, we have
not determined, as the commenters suggest, that the Transport Rule
alone achieves reasonable progress towards the natural visibility goal.

C. Final Action on Limited Disapprovals

    This action includes a final limited disapproval of the regional
haze SIPs submitted by Alabama, Georgia, Indiana, Iowa, Louisiana,
Michigan, Mississippi, Missouri, North Carolina, Ohio, Pennsylvania,
South Carolina, Virginia, and Texas. We are not finalizing the limited
disapproval for Florida at this time because the state has requested
additional time to modify its SIP to address the change in
applicability of the Transport Rule to Florida in the final rule
published on August 8, 2011, (76 FR 48208) and is actively preparing
SIP revisions.\20\ The EPA included Florida in the proposed Transport
Rule for coverage under both the SO2 and NOX
trading programs, but removed Florida from the SO2 trading
program in the final Transport Rule. Florida was unaware of this
modification until publication of the final rule. The EPA has decided
to postpone action on Florida's regional haze SIP given this
extenuating circumstance, Florida's request for additional time to
modify its SIP to address the change in coverage under the Transport
Rule, and Florida's continued progress toward submitting a SIP
revision.
---------------------------------------------------------------------------

    \20\ On May 15, 2012, the EPA proposed limited approval of three
revisions to the Florida SIP, including BART determinations for five
facilities.
---------------------------------------------------------------------------

VI. FIPs

A. What did the EPA propose?

    We proposed FIPs to replace reliance on CAIR requirements with
reliance on the trading programs of the Transport Rule as an
alternative to BART for SO2 and NOX emissions
from EGUs in the following states' regional haze SIPs: Alabama,
Georgia, Indiana, Iowa, Kentucky, Michigan, Missouri, North Carolina,
Ohio, Pennsylvania, South Carolina, Tennessee, Texas, Virginia and West
Virginia. We proposed FIPs to replace reliance on CAIR requirements
with reliance on the Transport Rule as an alternative to BART for
NOX emissions from EGUs in the following states' regional
haze SIPs: Florida, Louisiana, and Mississippi.
    We proposed that these limited FIPs would satisfy the BART
requirement and be a part of satisfying the requirement for a long-term
strategy sufficient to achieve the state-adopted reasonable progress
goals. The FIPs would apply only to EGUs in the affected states and
only to pollutants covered by the Transport Rule program in those
states. The proposed FIPs would not alter states' reasonable progress
goals or replace these goals.

B. Public Comments on Proposed FIPs

    Similar to the comments received regarding our proposed limited
disapprovals, numerous commenters argued that the EPA should not
finalize FIPs because, according to the commenters, we cannot rely on
the Transport Rule because of the current stay of that rule. Other
commenters took the position that we should fully approve the regional
haze SIPs that relied on CAIR to satisfy certain regional haze
requirements and that our proposed FIPs substituting the Transport Rule
as an alternative to source-specific BART in regional haze SIPs are
unnecessary.
    As explained above in section II.B.2, we do not agree that the EPA
cannot rely on the Transport Rule because of the temporary stay imposed
by the D.C. Circuit. With respect to reliance on CAIR, as explained in
section II.A.3, CAIR has been remanded and only remains in place
temporarily; consequently, we cannot fully approve those regional haze
SIP revisions that have relied on the now-temporary reductions from
CAIR. Although CAIR is currently in place, as a result of the December
30, 2011, Order from the U.S. Court of Appeals for the D.C. Circuit
staying the Transport Rule, this does not

affect the earlier court ruling remanding CAIR to the EPA. A number of
states objected to the EPA's proposed FIP as these states did not
receive a finding of failure to timely submit a regional haze SIP.
These states requested the allowable time to revise and resubmit their
SIP. Other states which also did not receive a finding of failure to
timely submit a regional haze SIP did not object to the EPA's proposed
FIP. As explained in section VI.C, we have responded to this comment by
granting additional time to those states that prefer to revise and
resubmit their SIP to the EPA for approval and did not receive a
finding of failure to timely submit their regional haze SIP.

C. Final Action on FIPs

    In this action, the EPA is finalizing FIPs to replace reliance on
CAIR with reliance on the Transport Rule as an alternative to BART in
regional haze SIPs of Georgia, Indiana, Iowa, Kentucky, Michigan,
Missouri, Ohio, Pennsylvania, South Carolina, Tennessee, Virginia, and
West Virginia. Regional haze SIPs were due in December 2007. Under the
CAA, the EPA is required to promulgate a FIP within 2 years after
finding that a state has failed to make a required submission or after
disapproving a SIP in whole or in part, unless the state first adopts
and we have fully approved a SIP. CAA section 110(c)(1). We made a
finding on January 15, 2009, that Georgia, Indiana, Michigan, Ohio,
Pennsylvania, Texas, and Virginia had failed to timely submit a
regional haze SIP. We are finalizing the FIPs for Iowa, Missouri, South
Carolina, Tennessee, and West Virginia, even though we are not required
by the CAA to do so at this time, because of our understanding based on
communications with state officials that this action on our part is
their preference. Our adoption of these FIPs at this time avoids the
near-term need for additional administrative steps on the part of these
states. That is, these states do not have to take any further action on
their regional haze SIPs until SIP revisions are due in 2018. However,
at any time, states may, and are encouraged to submit a revision to
their regional haze SIP incorporating the requirements of the Transport
Rule. At that time, we will withdraw the FIP being finalized in this
action.
    We are not finalizing FIPs, as proposed, for Alabama, Florida,
Louisiana, Mississippi, or North Carolina. Rather than a FIP, Alabama,
Louisiana, Mississippi, and North Carolina have requested additional
time to correct the deficiencies in their SIPs and submit a SIP
revision. As these states did not receive a finding of failure to
submit a regional haze SIP, the EPA is not required to promulgate a FIP
at this time. The EPA will be required to issue a FIP for each state
that does not submit an approvable SIP revision that corrects the
deficiencies related to reliance on CAIR in time for the EPA to review
and approve it within 2 years of this final limited disapproval action.
We are not finalizing a FIP, as proposed, for Texas in order to allow
more time for the EPA to assess the current Texas SIP submittal.
Additional time is required due to the variety and number of BART-
eligible sources and the complexity of the SIP. The EPA is also
deferring action on the proposed FIP for Florida for the reasons
discussed in section V.C.

VII. Regulatory Text

A. What did the EPA propose?

    Based on our finding that the ``Transport Rule + BART elsewhere''
control scenario passes the two-pronged test, we proposed to determine
that the Transport Rule trading program will provide greater progress
towards Regional Haze goals than source-specific BART. We noted that
the proposed determination would apply only to EGUs in the Transport
Rule trading programs and only for the pollutants covered by the
programs in each state. Accordingly, we proposed to revise 40 CFR
51.308(e)(4) by essentially replacing the name of CAIR with the name of
the Transport Rule.
    We also proposed that a state that chooses to meet the emission
reduction requirements of the Transport Rule by submitting a complete
SIP revision substantively identical to the provisions of the EPA
trading program that is approved as meeting the requirements of Sec.
52.38 and/or Sec.  52.39 also need not require BART-eligible EGUs in
the state to install, operate, and maintain BART for the pollutants
covered by such a trading program in the state.

B. Clarification of Final Regulatory Text

    A number of the states for which we proposed a FIP had previously
failed to either submit a visibility SIP or had failed to submit a SIP
that could be fully approved under the visibility regulations issued in
1980. See 45 FR 80084 (December 2, 1980). The final regulatory text
takes account of this and is not intended to change the findings that
have been made in the past with respect to the relevant states'
compliance with the requirements of visibility regulations found at 40
CFR 51.302-51.307.
    The regulatory text also accounts for final limited approval of the
regional haze SIPs of Indiana, Ohio and Virginia that the EPA is
finalizing separately, on or about the same day as this action.
Including regulatory text that accounts for the final limited approval
in this action avoids the need for additional overlapping revisions to
the CFR for these states. To ensure that the relevant regulatory text
is appropriately revised, we are amending certain regulatory provisions
for these states in this action only.\21\
---------------------------------------------------------------------------

    \21\ The regulatory text at issue addressing limited approvals
and limited disapprovals can be found at 40 CFR 52.791(a), 40 CFR
52.1886(a) and 40 CFR 52.2452(d).
---------------------------------------------------------------------------

    We are also making conforming changes to the regulatory text for
the regional haze SIPs of Kentucky, Tennessee and West Virginia as the
EPA has previously promulgated a final limited approval and final
limited disapproval of these SIPs. For Kentucky, in this action we are
making conforming changes to the regulatory text in 40 CFR 52.936(a)
regarding the limited approval and limited disapproval of Kentucky's
SIP. These conforming changes do not affect the substance of the EPA's
final action on Kentucky on March 30, 2012 (77 FR 19098). For
Tennessee, in this action we are making conforming changes to the
regulatory text in 40 CFR 52.2234(a) regarding the limited approval and
limited disapproval of Tennessee's SIP. These conforming changes do not
affect the substance of EPA's final action on April 24, 2012 (77 FR
24392). For West Virginia, in this action we are making conforming
changes to the regulatory text in 40 CFR 52.2533(d) regarding the
limited approval and limited disapproval of West Virginia's SIP. These
conforming changes do not affect the substance of the EPA's final
action on West Virginia on March 23, 2012 (77 FR 16937).

VIII. Statutory and Executive Order Reviews

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

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is a ``significant regulatory action'' because some may view it
as raising novel legal or policy issues arising out of legal mandates,
the President's priorities, or the principles set forth in the
Executive Order. Accordingly, the EPA submitted this action to the
Office of Management and Budget (OMB) for review under Executive Orders
12866 and 13563 (76 FR 3821, January 21, 2011) and any changes made in
response to OMB recommendations have been

documented in the docket for this action.

B. Paperwork Reduction Act

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

C. Regulatory Flexibility Act

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

D. Unfunded Mandates Reform Act

    This action contains no federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, 2 U.S.C.
1531-1538) for state, local, or tribal governments or the private
sector. The action imposes no enforceable duty on any state, local, or
tribal governments or the private sector. Therefore, this action is not
subject to the requirements of sections 202 or 205 of the UMRA.
    This action is also not subject to the requirements of section 203
of UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. This action merely
interprets the statutory requirements that apply to states in preparing
their SIPs.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It 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. This action does not impose any new
mandates on state or local governments. Thus, Executive Order 13132
does not apply to this rule. In the spirit of Executive Order 13132 and
consistent with EPA policy to promote communications between the EPA
and state and local governments, the EPA specifically solicited
comments on the proposed rule from state and local officials. We
received comments from seven states. These comments are addressed in
the final action and in the Response to Comment document.

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

    This rule does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). The rule does
not have a substantial direct effect on one or more Indian tribes,
since there are no BART-eligible EGU sources on tribal lands in the
Transport Rule region. In addition, the CAA does not provide for the
inclusion of any tribal areas as mandatory Class I federal areas; thus,
tribal areas are not subject to the requirements of the Regional Haze
Rule. Furthermore, this rule does not affect the relationship or
distribution of power and responsibilities between the federal
government and Indian tribes. Thus, Executive Order 13175 does not
apply to this action. The EPA specifically solicited additional comment
on the proposed action from tribal officials and we received none.

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

    The EPA interprets Executive Order 13045 (62 FR 19885, April 23,
1997) as applying to those regulatory actions that concern health or
safety risks, such that the analysis required under section 5-501 of
the Order has the potential to influence the regulation. This action is
not subject to Executive Order 13045 because it does not establish an
environmental standard intended to mitigate health or safety risks.

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

    This action is not a ``significant energy action'' as defined in
Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy. This action does not establish
requirements that directly affect the general public and private
sectors. Rather, this rule will allow states to avoid regulating EGUs
in new ways based on the current requirements of the Transport Rule,
and thus may avoid adverse effects that conceivably might result from
such additional regulation of EGUs by states.

I. National Technology Transfer and Advancement Act

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

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

    Executive Order 12898 (EO) (59 FR 7629, February 16, 1994)
establishes federal executive policy on environmental justice. Its main
provision directs federal agencies, to the greatest extent practicable
and permitted by law, to make environmental justice part of their
mission by identifying and addressing, as appropriate,
disproportionately high and adverse human health or environmental
effects of their programs, policies, and activities on minority

populations and low-income populations in the United States.
    The EPA has concluded that it is not practicable to determine
whether there would be disproportionately high and adverse human health
or environmental effects on minority and/or low income populations from
this final rule. The PM2.5 air quality improvements that
might be expected under implementation of source-specific BART may
differ from the Transport Rule in terms of the emission reductions
required at any given source. However, our analysis of the Transport
Rule suggests that the regional Transport Rule approach provides
widespread health benefits especially among populations most vulnerable
to PM2.5 impacts. This analysis is presented in detail in
the Regulatory Impact Analysis for the Transport Rule which is
available in the Transport Rule docket EPA-HQ-OAR-2009-0491 and from
the main EPA Web page for the Transport Rule available at www.epa.gov/airtransport.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, 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. The 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). This rule will be effective August 6, 2012.

IX. Statutory Authority

    Statutory authority for this rule comes from sections 169A and 169B
of the CAA (42 U.S.C. 7491 and 7492). These sections require the EPA to
issue regulations that will require states to revise their SIPs to
ensure that reasonable progress is made toward the national visibility
goals specified in section 169A.

List of Subjects

40 CFR Part 51

    Administrative practice and procedure, Air pollution control,
Incorporation by reference, Intergovernmental relations, Nitrogen
oxides, Ozone, Particulate matter, Regional haze, Reporting and
recordkeeping requirements, Sulfur dioxide.

40 CFR Part 52

    Administrative practice and procedure, Air pollution control,
Incorporation by reference, Intergovernmental relations, Nitrogen
oxides, Ozone, Particulate matter, Regional haze, Reporting and
recordkeeping requirements, Sulfur dioxide.

    Dated: May 30, 2012.
Lisa P. Jackson,
Administrator.

    For the reasons set forth in the preamble, chapter I of title 40 of
the Code of Federal Regulations is amended as follows:

PART 51--[AMENDED]

0
1. The authority citation for part 51 continues to read as follows:

    Authority:  23 U.S.C. 101; 42 U.S.C. 7401-7671q.

0
2. Section 51.308 is amended by revising paragraph (e)(4) to read as
follows:

Sec.  51.308  Regional haze program requirements.

* * * * *
    (e) * * *
    (4) A State subject to a trading program established in accordance
with Sec.  52.38 or Sec.  52.39 under a Transport Rule Federal
Implementation Plan need not require BART-eligible fossil fuel-fired
steam electric plants in the State to install, operate, and maintain
BART for the pollutant covered by such trading program in the State. A
State that chooses to meet the emission reduction requirements of the
Transport Rule by submitting a SIP revision that establishes a trading
program and is approved as meeting the requirements of Sec.  52.38 or
Sec.  52.39 also need not require BART-eligible fossil fuel-fired steam
electric plants in the State to install, operate, and maintain BART for
the pollutant covered by such trading program in the State. A State may
adopt provisions, consistent with the requirements applicable to the
State for a trading program established in accordance with Sec.  52.38
or Sec.  52.39 under the Transport Rule Federal Implementation Plan or
established under a SIP revision that is approved as meeting the
requirements of Sec.  52.38 or Sec.  52.39, for a geographic
enhancement to the program to address the requirement under Sec.
51.302(c) related to BART for reasonably attributable impairment from
the pollutant covered by such trading program in that State.
* * * * *

PART 52--[AMENDED]

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

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

Subpart B--Alabama

0
4. Section 52.61 is amended by revising paragraph (a) and adding a new
paragraph (c) to read as follows:

Sec.  52.61  Visibility protection.

    (a) Reasonably Attributable Visibility Impairment. 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
51.306 for protection of visibility in mandatory Class I Federal areas.
* * * * *
    (c) Regional Haze. The requirements of section 169A of the Clean
Air Act are not met because the regional haze plan submitted by Alabama
on July 15, 2008, does not include fully approvable measures for
meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) with
respect to emissions of NOX and SO2 from electric
generating units. EPA has given limited disapproval to the plan
provisions addressing these requirements.

Subpart L--Georgia

0
5. Section 52.580 is added to read as follows:

Sec.  52.580  Visibility protection.

    (a) Regional Haze. The requirements of section 169A of the Clean
Air Act are not met because the regional haze plan submitted by Georgia
on February 11, 2010, and supplemented on November 19, 2010, does not
include fully approvable measures for meeting the requirements of 40
CFR 51.308(d)(3) and 51.308(e) with respect to emissions of
NOX and SO2 from electric generating units. EPA
has given limited disapproval to the plan provisions addressing these
requirements.
    (b) Measures Addressing Limited Disapproval Associated with NOX.
The deficiencies associated with NOX identified in EPA's
limited disapproval of the regional haze plan submitted by Georgia on
February 11, 2010, and supplemented on November 19, 2010, are satisfied
by Sec.  52.584.
    (c) Measures Addressing Limited Disapproval Associated with SO2.
The deficiencies associated with SO2

identified in EPA's limited disapproval of the regional haze plan
submitted by Georgia on February 11, 2010, and supplemented on November
19, 2010, are satisfied by Sec.  52.585.

Subpart P--Indiana

0
6. Section 52.791 is added to read as follows:

Sec.  52.791  Visibility protection.

    (a) Regional Haze. The requirements of section 169A of the Clean
Air Act are not met because the regional haze plan submitted by Indiana
on January 14, 2011, and supplemented on March 10, 2011, does not
include fully approvable measures for meeting the requirements of 40
CFR 51.308(d)(3) and 51.308(e) with respect to emissions of
NOX and SO2 from electric generating units. EPA
has given limited approval and limited disapproval to the plan
provisions addressing these requirements.
    (b) Measures Addressing Limited Disapproval Associated with NOX.
The deficiencies associated with NOX identified in EPA's
limited disapproval of the regional haze plan submitted by Indiana on
January 14, 2011, and supplemented on March 10, 2011, are satisfied by
Sec.  52.789.
    (c) Measures Addressing Limited Disapproval Associated with SO2.
The deficiencies associated with SO2 dentified in EPA's
limited disapproval of the regional haze plan submitted by Indiana on
January 14, 2011 and supplemented on March 10, 2011 are satisfied by
Sec.  52.790.

Subpart Q--Iowa

0
7. Section 52.842 is added to read as follows:

Sec.  52.842  Visibility protection.

    (a) Regional Haze. The requirements of section 169A of the Clean
Air Act are not met because the regional haze plan submitted by Iowa on
March 25, 2008, does not include fully approvable measures for meeting
the requirements of 40 CFR 51.308(d)(3) and 51.308(e) with respect to
emissions of NOX and SO2 from electric generating
units. EPA has given limited disapproval to the plan provisions
addressing these requirements.
    (b) Measures Addressing Limited Disapproval Associated with NOX.
The deficiencies associated with NOX identified in EPA's
limited disapproval of the regional haze plan submitted by Iowa on
March 25, 2008, are satisfied by Sec.  52.840.
    (c) Measures Addressing Limited Disapproval Associated with SO2.
The deficiencies associated with SO2 identified in EPA's
limited disapproval of the regional haze plan submitted by Iowa on
March 25, 2008, are satisfied by Sec.  52.841.

Subpart S--Kentucky

0
8. Section 52.936 is revised to read as follows:

Sec.  52.936  Visibility protection.

    (a) Regional Haze. The requirements of section 169A of the Clean
Air Act are not met because the regional haze plan submitted by
Kentucky on June 25, 2008, and amended on May 28, 2010, does not
include fully approvable measures for meeting the requirements of 40
CFR 51.308(d)(3) and 51.308(e) with respect to emissions of
NOX and SO2 from electric generating units. EPA
has given limited approval and limited disapproval to the plan
provisions addressing these requirements.
    (b) Measures Addressing Limited Disapproval Associated with NOX.
The deficiencies associated with NOX identified in EPA's
limited disapproval of the regional haze plan submitted by Kentucky on
June 25, 2008, and amended on May 28, 2010, are satisfied by Sec.
52.940.
    (c) Measures Addressing Limited Disapproval Associated with SO2.
The deficiencies associated with SO2 identified in EPA's
limited disapproval of the regional haze plan submitted by Kentucky on
June 25, 2008, and amended on May 28, 2010, are satisfied by Sec.
52.941.

Subpart T--Louisiana

0
9. Section 52.985 is added to read as follows:

Sec.  52.985  Visibility protection.

    (a) Regional Haze. The requirements of section 169A of the Clean
Air Act are not met because the regional haze plan submitted by
Louisiana on June 13, 2008, does not include fully approvable measures
for meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) with
respect to emissions of NOX and SO2 from electric
generating units. EPA has given limited disapproval to the plan
provisions addressing these requirements.
    (b) [Reserved]

Subpart X--Michigan

0
10. Section 52.1183 is amended by revising paragraph (a) and adding new
paragraphs (d), (e), and (f) to read as follows:

Sec.  52.1183  Visibility protection.

    (a) Reasonably Attributable Visibility Impairment. 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
51.302, 51.305, and 51.307 for protection of visibility in mandatory
Class I Federal areas.
* * * * *
    (d) Regional Haze. The requirements of section 169A of the Clean
Air Act are not met because the regional haze plan submitted by
Michigan on November 5, 2010, does not include fully approvable
measures for meeting the requirements of 40 CFR 51.308(d)(3) and
51.308(e) with respect to emissions of NOX and
SO2 from electric generating units. EPA has given limited
approval and limited disapproval to the plan provisions addressing
these requirements.
    (e) Measures Addressing Limited Disapproval Associated With NOX.
The deficiencies associated with NOX identified in EPA's
limited disapproval of the regional haze plan submitted by Michigan on
November 5, 2010, are satisfied by Sec.  52.1186.
    (f) Measures Addressing Limited Disapproval Associated With SO2.
The deficiencies associated with SO2 identified in EPA's
limited disapproval of the regional haze plan submitted by Michigan on
November 5, 2010, are satisfied by Sec.  52.1187.

Subpart Z--Mississippi

0
11. Section 52.1279 is added to read as follows:

Sec.  52.1279  Visibility protection.

    (a) Regional Haze. The requirements of section 169A of the Clean
Air Act are not met because the regional haze plan submitted by
Mississippi on September 22, 2008, and supplemented on May 9, 2011,
does not include fully approvable measures for meeting the requirements
of 40 CFR 51.308(d)(3) and 51.308(e) with respect to emissions of
NOX and SO2 from electric generating units. EPA
has given limited disapproval to the plan provisions addressing these
requirements.
    (b) [Reserved]

Subpart AA--Missouri

0
12. Section 52.1339 is amended by revising paragraph (a) and adding new
paragraphs (c), (d), and (e) to read as follows:

Sec.  52.1339  Visibility protection.

    (a) Reasonably Attributable Visibility Impairment. 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

51.306 for protection of visibility in mandatory Class I Federal areas.
* * * * *
    (c) Regional Haze. The requirements of section 169A of the Clean
Air Act are not met because the regional haze plan submitted by
Missouri on August 5, 2009, and supplemented on January 30, 2012, does
not include fully approvable measures for meeting the requirements of
40 CFR 51.308(d)(3) and 51.308(e) with respect to emissions of
NOX and SO2 from electric generating units. EPA
has given limited disapproval to the plan provisions addressing these
requirements.
    (d) Measures Addressing Limited Disapproval Associated With NOX.
The deficiencies associated with NOX identified in EPA's
limited disapproval of the regional haze plan submitted by Missouri on
August 5, 2009, and supplemented on January 30, 2012, are satisfied by
Sec.  52.1326.
    (e) Measures Addressing Limited Disapproval Associated With SO2.
The deficiencies associated with SO2 identified in EPA's
limited disapproval of the regional haze plan submitted by Missouri on
August 5, 2009, and supplemented on January 30, 2012, are satisfied by
Sec.  52.1327.

Subpart II--North Carolina

0
13. Section 52.1776 is added to read as follows:

Sec.  52.1177  Visibility protection.

    (a) Regional Haze. The requirements of section 169A of the Clean
Air Act are not met because the regional haze plan submitted by North
Carolina on December 17, 2007, does not include fully approvable
measures for meeting the requirements of 40 CFR 51.308(d)(3) and
51.308(e) with respect to emissions of NOX and
SO2 from electric generating units. EPA has given limited
disapproval to the plan provisions addressing these requirements.
    (b) [Reserved]

Subpart KK--Ohio

0
14. Section 52.1886 is added to read as follows:

Sec.  52.1886  Visibility protection.

    (a) Regional Haze. The requirements of section 169A of the Clean
Air Act are not met because the regional haze plan submitted by Ohio on
March 11, 2011, does not include fully approvable measures for meeting
the requirements of 40 CFR 51.308(d)(3) and 51.308(e) with respect to
emissions of NOX and SO2 from electric generating
units. EPA has given limited approval and limited disapproval to the
plan provisions addressing these requirements.
    (b) Measures Addressing Limited Disapproval Associated With NOX.
The deficiencies associated with NOX identified in EPA's
limited disapproval of the regional haze plan submitted by Ohio on
March 11, 2011, are satisfied Sec.  52.1882.
    (c) Measures Addressing Limited Disapproval Associated With SO2.
The deficiencies associated with SO2 identified in EPA's
limited disapproval of the regional haze plan submitted by Ohio on
March 11, 2011, are satisfied by Sec.  52.1883.

Subpart NN--Pennsylvania

0
15. Section 52.2042 is added to read as follows:

Sec.  52.2042  Visibility protection.

    (a) Regional Haze. The requirements of section 169A of the Clean
Air Act are not met because the regional haze plan submitted by
Pennsylvania on December 20, 2010, does not include fully approvable
measures for meeting the requirements of 40 CFR 51.308(d)(3) and
51.308(e) with respect to emissions of NOX and
SO2 from electric generating units. EPA has given limited
approval and limited disapproval to the plan provisions addressing
these requirements.
    (b) Measures Addressing Limited Disapproval Associated With NOX.
The deficiencies associated with NOX identified in EPA's
limited disapproval of the regional haze plan submitted by Pennsylvania
on December 20, 2010, are satisfied Sec.  52.2040.
    (c) Measures Addressing Limited Disapproval Associated With SO2.
The deficiencies associated with SO2 identified in EPA's
limited disapproval of the regional haze plan submitted by Pennsylvania
on December 20, 2010, are satisfied by Sec.  52.2041.

Subpart PP--South Carolina

0
16. Section 52.2132 is amended by revising paragraph (a) and adding new
paragraphs (d), (e), and (f) to read as follows:

Sec.  52.2132  Visibility protection.

    (a) Reasonably Attributable Visibility Impairment. 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
51.305 and 51.306 for protection of visibility in mandatory Class I
Federal areas.
* * * * *
    (d) Regional Haze. The requirements of section 169A of the Clean
Air Act are not met because the regional haze plan submitted by South
Carolina on December 17, 2007, does not include fully approvable
measures for meeting the requirements of 40 CFR 51.308(d)(3) and
51.308(e) with respect to emissions of NOX and
SO2 from electric generating units. EPA has given limited
disapproval to the plan provisions addressing these requirements.
    (e) Measures Addressing Limited Disapproval Associated with NOX.
The deficiencies associated with NOX identified in EPA's
limited disapproval of the regional haze plan submitted by South
Carolina on December 17, 2007, are satisfied by Sec.  52.2140.
    (f) Measures Addressing Limited Disapproval Associated with SO2.
The deficiencies associated with SO2 identified in EPA's
limited disapproval of the regional haze plan submitted by South
Carolina on December 17, 2007, are satisfied by Sec.  52.2141.

Subpart RR--Tennessee

0
17. Section 52.2234 is amended by revising paragraph (a) and adding new
paragraphs (c) and (d) to read as follows:

Sec.  52.2234  Visibility protection.

    (a) Regional Haze. The requirements of section 169A of the Clean
Air Act are not met because the regional haze plan submitted by
Tennessee on April 4, 2008, does not include fully approvable measures
for meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) with
respect to emissions of NOX and SO2 from electric
generating units. EPA has given limited approval and limited
disapproval to the plan provisions addressing these requirements.
* * * * *
    (c) Measures Addressing Limited Disapproval Associated with NOX.
The deficiencies associated with NOX identified in EPA's
limited disapproval of the regional haze plan submitted by Tennessee on
April 4, 2008, are satisfied by Sec.  52.2240.
    (d) Measures Addressing Limited Disapproval Associated with SO2.
The deficiencies associated with SO2 identified in EPA's
limited disapproval of the regional haze plan submitted by Tennessee on
April 4, 2008, are satisfied by Sec.  52.2241.

Subpart SS--Texas

0
18. Section 52.2304 is amended by revising paragraph (a) and adding new
paragraph (c) to read as follows:

Sec.  52.2304  Visibility protection.

    (a) Reasonably Attributable Visibility Impairment. The requirements
of section 169A of the Clean Air Act are not met because the plan does
not include fully approvable measures for meeting the requirements of
40 CFR 51.305 for protection of visibility in mandatory Class I Federal
areas.
* * * * *
    (c) Regional Haze. The requirements of section 169A of the Clean
Air Act are not met because the regional haze plan submitted by Texas
on March 31, 2009, does not include fully approvable measures for
meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) with
respect to emissions of NOX and SO2 from electric
generating units. EPA has given limited disapproval to the plan
provisions addressing these requirements.

Subpart VV--Virginia

0
19. Section 52.2452 is amended by revising paragraph (a) and adding new
paragraphs (d), (e), and (f) to read as follows:

Sec.  52.2452  Visibility protection.

    (a) Reasonably Attributable Visibility Impairment. 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
51.305 and 51.306 for protection of visibility in mandatory Class I
Federal areas.
* * * * *
    (d) Regional Haze. The requirements of section 169A of the Clean
Air Act are not met because the regional haze plan submitted by
Virginia on July 17, 2008, March 6, 2009, January 14, 2010, October 4,
2010, November 19, 2010, and May 6, 2011, does not include fully
approvable measures for meeting the requirements of 40 CFR 51.308(d)(3)
and 51.308(e) with respect to emissions of NOX and
SO2 from electric generating units. EPA has given limited
approval and limited disapproval to the plan provisions addressing
these requirements.
    (e) Measures Addressing Limited Disapproval Associated with NOX.
The deficiencies associated with NOX identified in EPA's
limited disapproval of the regional haze plan submitted by Virginia on
July 17, 2008, March 6, 2009, January 14, 2010, October 4, 2010,
November 19, 2010, and May 6, 2011, are satisfied by Sec.  52.2440.
    (f) Measures Addressing Limited Disapproval Associated with SO2.
The deficiencies associated with SO2 identified in EPA's
limited disapproval of the regional haze plan submitted by Virginia on
July 17, 2008, March 6, 2009, January 14, 2010, October 4, 2010,
November 19, 2010, and May 6, 2011, are satisfied by Sec.  52.2441.

Subpart XX--West Virginia

0
20. Section 52.2533 is amended by revising paragraphs (a) and (d) and
adding new paragraphs (e) and (f) to read as follows:

Sec.  52.2533  Visibility protection.

    (a) Reasonably Attributable Visibility Impairment. 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
51.305, 51.306, and 51.307 for protection of visibility in mandatory
Class I Federal areas.
* * * * *
    (d) Regional Haze. The requirements of section 169A of the Clean
Air Act are not met because the regional haze plan submitted by West
Virginia on June 18, 2008, does not include fully approvable measures
for meeting the requirements of 40 CFR 51.308(d)(3) and 51.308(e) with
respect to emissions of NOX and SO2 from electric
generating units. EPA has given limited approval and limited
disapproval to the plan provisions addressing these requirements.
    (e) Measures Addressing Limited Disapproval Associated with NOX.
The deficiencies associated with NOX identified in EPA's
limited disapproval of the regional haze plan submitted by West
Virginia on June 18, 2008, are satisfied by Sec.  52.2540.
    (f) Measures Addressing Limited Disapproval Associated with SO2.
The deficiencies associated with SO2 identified in EPA's
limited disapproval of the regional haze plan submitted by West
Virginia on June 18, 2008, are satisfied by Sec.  52.2541.

[FR Doc. 2012-13693 Filed 6-6-12; 8:45 am]
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