[Federal Register Volume 76, Number 120 (Wednesday, June 22, 2011)]
[Rules and Regulations]
[Pages 36329-36339]
[FR Doc No: 2011-15452]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R10-OAR-2010-1072; FRL-9321-4]

Approval and Promulgation of Implementation Plans; State of
Idaho; Regional Haze State Implementation Plan and Interstate Transport
Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving portions of a State Implementation Plan (SIP)
revision submitted by the State of Idaho on October 25, 2010, as
meeting the requirements of Clean Air Act (CAA) section
110(a)(2)(D)(i)(II) as it applies to visibility for the 1997 8-hour
ozone and 1997 particulate matter (PM2.5) National Ambient
Air Quality Standards (NAAQS). EPA is also approving portions of the
revision as meeting certain requirements of the regional haze program,
including the requirements for best available retrofit technology
(BART).

DATES: Effective Date: This final rule is effective July 22, 2011.

ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R10-OAR-2010-1072. All documents in the docket are listed on
the http://www.regulations.gov Web site. Although listed in the index,
some information is not publicly available, e.g., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the Internet and will be publicly available only in hard
copy form. Publicly available docket materials are available either
electronically through http://www.regulations.gov or in hard copy at
the State and Tribal Air Programs Unit, Office of Air Waste and Toxics,
EPA Region 10, 1200 Sixth Avenue, Seattle, WA, 98101. EPA requests that
if at all possible, you contact the individual listed in the FOR
FURTHER INFORMATION CONTACT section to view the hard copy of the
docket. You

may view the hard copy of the docket Monday through Friday, 8 a.m. to 4
p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Steve Body, EPA Region 10, Suite 900,
Office of Air, Waste and Toxics, 1200 Sixth Avenue, Seattle, WA 98101.

SUPPLEMENTARY INFORMATION:

Definitions

    For the purpose of this document, we are giving meaning to certain
words or initials as follows:
    (i) The words or initials Act, CAA, or Clean Air Act mean or refer
to the Clean Air Act, unless the context indicates otherwise.
    (ii) The words EPA, we, us or our mean or refer to the United
States Environmental Protection Agency.
    (iii) The initials SIP mean or refer to State Implementation Plan.
    (iv) The words Idaho and State mean the State of Idaho.

Table of Contents

I. Background Information
II. Response to Comments
III. Final Action
IV. Scope of Action
V. Statutory and Executive Orders Review

I. Background Information

    On July 18, 1997, EPA promulgated new NAAQS for 8-hour ozone and
for fine particulate matter (PM2.5). This action is being
taken, in part, in response to the promulgation of the 1997 8-hour
ozone and PM2.5 NAAQS. Section 110(a)(1) of the CAA requires
states to submit a SIP revision to address a new or revised NAAQS
within 3 years after promulgation of such standards, or within such
shorter period as EPA may prescribe. Section 110(a)(2) lists the
elements that such new SIPs must address, as applicable, including
section 110(a)(2)(D)(i), which pertains to interstate transport of
certain emissions.
    Section 110(a)(2)(D)(i) of the CAA requires that a SIP must contain
adequate provisions prohibiting any source or other type of emissions
activity within the state from emitting any air pollutant in amounts
which will: (1) contribute significantly to nonattainment of the NAAQS
in any other state; (2) interfere with maintenance of the NAAQS by any
other state; (3) interfere with any other state's required measures to
prevent significant deterioration of air quality; or (4) interfere with
any other state's required measures to protect visibility. This action
addresses the fourth prong, section 110(a)(2)(D)(i)(II).
    In the CAA Amendments of 1977, Congress established a program to
protect and improve visibility in the national parks and wilderness
areas. See CAA section 169(A). Congress amended the visibility
provisions in the CAA in 1990 to focus attention on the problem of
regional haze. See CAA section 169(B). EPA promulgated regulations in
1999 to implement sections 169A and 169B of the Act. These regulations
require states to develop and implement plans to ensure reasonable
progress toward improving visibility in mandatory Class I Federal
areas\1\ (Class I areas). 64 FR 35714 (July 1, 1999); see also 70 FR
39104 (July 6, 2005) and 71 FR 60612 (October 13, 2006).
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    \1\ Areas designated as mandatory Class I Federal areas consist
of national parks exceeding 6000 acres, wilderness areas and
national memorial parks exceeding 5000 acres, and all international
parks that were in existence on August 7, 1977. 42 U.S.C. 7472(a).
In accordance with section 169A of the Clean Air Act, EPA, in
consultation with the Department of Interior, promulgated a list of
156 areas where visibility is identified as an important value. 44
FR 69122 (November 30, 1979). The extent of a mandatory Class I area
includes subsequent changes in boundaries, such as park expansions.
42 U.S.C. 7472(a). Although states and Tribes may designate as Class
I additional areas which they consider to have visibility as an
important value, the requirements of the visibility program set
forth in section 169A of the Clean Air Act apply only to ``mandatory
Class I Federal areas.'' Each mandatory Class I Federal area is the
responsibility of a ``Federal Land Manager.'' 42 U.S.C. 7602(i).
When we use the term ``Class I area'' in this action, we mean a
``mandatory Class I Federal area.''.
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    On October 25, 2010, the State of Idaho submitted to EPA a State
Implementation Plan (SIP) revision addressing the interstate transport
requirements for visibility for the 1997 ozone and PM2.5
NAAQS, [see CAA Sec.  110(a)(2)(D)(i)(II)], and the requirements of the
regional haze program at 40 CFR Sec.  51.308 (Regional Haze SIP
submittal). On January 11, 2011, EPA published a notice in which the
Agency proposed to approve the Idaho SIP revision as meeting the
requirements of both section 110(a)(2)(D)(i)(II) of the CAA and the
Regional Haze requirements set forth in sections 169A and 169B of the
CAA and in 40 CFR 51.300-308, with the exception of Chapter 11, Idaho
Reasonable Progress Goal Demonstration and Chapter 12, Long Term
Strategy. 76 FR 1579 (Notice of Proposed Rulemaking or NPR). For
Idaho's Reasonable Progress Goal Determination and Long-Term Strategy,
EPA did not propose taking any action.

II. Response to Comments

    EPA received four comments on the proposed action to approve
certain elements of the Idaho Regional Haze SIP submittal. A comment
letter was received from the State of Idaho's Department of
Environmental Quality (IDEQ). A comment was received from a private
citizen. Adverse comments were received by two entities; The
Amalgamated Sugar Company (TASCO) and the Wyoming Outdoor Council. The
discussion below summarizes and responds to the comments received on
EPA's proposed SIP action and explains the basis for EPA's final
action.

Comment from IDEQ

    Comment: IDEQ's letter related to a Tier II operating permit IDEQ
had issued to The Amalgamated Sugar Company (TASCO) on September 7,
2010, that included the requirement to install and operate BART control
technology and comply with the BART emission limitations. See the
September 7, 2010, letter from IDEQ to TASCO issuing the Tier II
Operating Permit No. T2-2009-0105, that was included in the Idaho
Regional Haze SIP submittal. The comment explained that on October 12,
2011, TASCO appealed the Tier II permit and that IDEQ has entered into
negotiations with TASCO to discuss alternative control measures that
may be required at the TASCO Nampa facility in lieu of the BART
conditions as outlined in the SIP submission. IDEQ and TASCO hope these
negotiations will result in a revised Tier II permit, agreed to by both
parties, that results in emissions controls that can be considered
better than the BART currently in the SIP submission.
    Response: EPA acknowledges the notification.

Comment from Private Citizen

    Comment: The comment supports Idaho's actions to improve visibility
in Class I areas.
    Response: EPA acknowledges the comment.

Comments from TASCO

    Comment 1a: TASCO requests the EPA defer further action of the
Regional Haze SIP submittal. TASCO explains that it is actively
negotiating with IDEQ to resolve its challenge to IDEQ's Tier II
operating permit that was issued on September 7, 2010, imposing BART
controls on the Riley Boiler at the TASCO Nampa facility. TASCO is
hopeful that the negotiations will result in a revised BART
determination and revised Tier II operating permit by May 2, 2011.
Thus, in the commenter's view, final action on the TASCO portion of the
Regional Haze SIP is premature, would ignore the ongoing negotiations
between TASCO and IDEQ, and would cause unnecessary administrative
burden for EPA, IDEQ, and TASCO because the company expects that a new/
revised Tier II permit will be

negotiated, issued and submitted to EPA. The commenter urges EPA to
postpone final action on the Regional Haze SIP submittal pending the
outcome of ongoing negotiations between TASCO and IDEQ and until EPA
undertakes a complete reevaluation of the affordability of BART
controls.\2\
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    \2\ At TASCO's request EPA and IDEQ had a phone conversation
with a TASCO representative on May 16, 2011, followed by a letter to
the EPA dated May 25, 2011, in which TASCO reiterated its request
that EPA postpone final action.
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    Response: TASCO suggests that instead of acting on the Regional
Haze SIP submittal, EPA defer action until the ongoing negotiations
between IDEQ and TASCO are completed and a revised BART determination
for TASCO is submitted to EPA. Unfortunately, EPA cannot defer action
on the Regional Haze SIP submittal. States were required to submit
Regional Haze SIPs by December 17, 2007. As Idaho and a number of other
states failed to meet this deadline, EPA issued a final rule finding
that these states had failed to submit Regional Haze SIPs to EPA. 74 FR
2392 (January 15, 2009). Under the CAA, EPA must issue a Federal
implementation plan (FIP) within two years of finding that a state has
failed to make a required submission, unless the state submits a SIP
and EPA fully approves the plan before promulgating a FIP. CAA section
110(c)(1). In addition, as described above, States are required to
submit a SIP revision to address a new or revised NAAQS within three
years after promulgation of such standards that contains adequate
provisions to prevent emissions from within the state from interfering
with other states' measures to protect visibility. Idaho failed to
submit a complete SIP revision within 3 years of promulgation of the
revised 1997 Ozone and PM2.5 NAAQS as required by section
110(a)(1) and meeting the requirements of section 110(a)(2)(D)(i). EPA
is under a court order to take final action approving the Idaho
Regional Haze SIP submittal, or to otherwise take action to meet the
requirements of section 110(a)(2)(D)(i)(II) regarding visibility, by
June 21, 2011. See 76 FR 1581, fn 5. In addition, IDEQ submitted the
Regional Haze SIP revision to EPA on October 25, 2010, and included the
Tier II operating permit for TASCO. EPA is obligated to take action on
that submittal unless or until such time as the State of Idaho
withdraws that submittal and submits a SIP revision.
    TASCO's suggestion that the Tier II operating permit will change as
a result of its challenge or the ongoing negotiations is speculative.
If and when a revised permit is issued sometime in the future, Idaho
may submit it for EPA review and action, as appropriate. Such SIP
revision must meet Federal requirements and policy on SIP revisions,
including the Regional Haze rule requirement that an alternative BART
determination must achieve greater reasonable progress than would be
achieved through installation and operation of BART. See 40 CFR
51.308(e)(2). TASCO's comments concerning the affordability analysis
are addressed below.
    Comment 1.b.: TACSO also requests that EPA postpone action on the
SIP for a few additional reasons. First, it states that due to
confusion and threatened litigation over EPA's national inaction on the
Regional Haze Rule, Idaho may be the first, or one of the first, states
to obtain approval. Thus, in their view, postponement of Idaho's plan
would not deviate from a national level of inactivity. TASCO questions
the urgency to partially approve Idaho's Regional Haze SIP and suggests
that based on the emission inventories from other states, Idaho should
be a low priority.
    TASCO also requests an explanation for the decision to only
partially approve the Regional Haze SIP and urges EPA to postpone final
action on Idaho's plan until other components are ready for EPA action.
    Finally, in TASCO's view, postponement of final action is
consistent with an Executive Order dated January 18, 2011 which
reaffirms regulatory review principles. TASCO contends the Regional
Haze SIP is out of step with current economic and political realities.
Specifically the comment states that the appropriate focus for
visibility improvements under the CAA should be emission reductions
from significant contributors, such as natural fire and mobile sources.
EPA's proposed partial approval, specifically the TASCO BART
determination, ``ignores significant contributors and over regulates
the minor contribution of the Riley Boiler. The proposal is not
consistent with either the substance not the spirit of President
Obama's EO.''
    Response: There is no confusion regarding litigation over CAA
section 110(a)(2)(D)(i)(II), the visibility prong of interstate
transport, which is a separate legal action from litigation over EPA
inaction on Regional Haze SIPs under Section 169(A)&(B). Idaho
submitted the Regional Haze SIP to meet two provisions in the CAA--
sections 110 and 169. As explained above, EPA must take action to meet
the requirements of CAA section 110(a)(2)(D)(i)(II) regarding
visibility by June 21, 2011. EPA's approval of the BART measures in the
Idaho Regional Haze SIP submittal fulfills this obligation. EPA notes
that the existence of any confusion regarding the timeline for EPA
action on the Regional Haze SIPs is irrelevant to the question of
whether the Regional Haze SIP submittal meets the requirements of the
CAA or the regional haze program and has no impact on the statutory
deadlines by which EPA must act. EPA intends to propose action on the
remaining elements of the Idaho Regional Haze SIP submittal as
expeditiously as possible, but finds no reason to delay action on the
BART provisions.
    Regarding TASCO's comment that this SIP action should be a low
priority based on emission inventories from other states, EPA notes
that BART obligations and the deadlines for taking action under the CAA
apply regardless of the state-to-state relative emission inventories.
Under the Regional Haze Rule, each state is required to address its
contribution to visibility impairment in Class I areas. See e.g. 40 CFR
51.308(d)(3). In addition, while the Regional Haze Rule requires states
to identify all anthropogenic sources of visibility impairment in
developing its long-term strategy, Congress placed special emphasis on
the use of retrofit controls for certain sources, such as the TASCO
facility's Riley Boiler. IDEQ accordingly carefully considered the use
of such controls at TASCO and determined that controls were cost-
effective, would improve visibility, and were an appropriate measure
for assuring reasonable progress toward the national goal.
    The Executive Order identified by the commenter, EO 13563, provides
that ``[o]ur regulatory system must protect public health, welfare,
safety, and our environment while promoting economic growth,
innovation, competitiveness, and job creation * * *. It must identify
and use the best, most innovative, and least burdensome tools for
achieving regulatory ends * * *'' While EPA's compliance with EO 13563
is not subject to judicial review, EPA has complied with the EO in this
action approving IDEQ's Regional Haze SIP submittal. First, we note
that EPA's Regional Haze Rules provide substantial flexibility to the
states in meeting the BART requirements in the CAA while still ensuring
that reasonable progress towards the national goal is made. Second,
TASCO's argument that EPA has ignored the contribution of other sources
to visibility impairment in approving IDEQ's BART determination
misrepresents EPA's role in evaluating a state's BART determination.
The CAA provides no basis for EPA to disapprove

a BART determination as overly stringent because a state has ignored
other sources of impairment in its SIP.
    Comment 2: On September 7, 2010, IDEQ issued a Tier II operating
permit to TASCO that imposed both SO2 and NOx BART controls on the
Riley Boiler at the TASCO Nampa facility and on October 12, 2010, TASCO
filed a contested petition with the IDEQ challenging the reasonableness
of the SO2 and NOx BART controls selected. In its comments to EPA,
TASCO summarized the basis for its challenge at the state level to the
Tier II operating permits.
    Comment 2a: IDEQ failed to consider the 5-factors required by the
CAA in choosing BART for SO2 and NOx emissions including the degree of
improvement in visibility from the use such technology and the cost of
compliance.
    Response: The Riley Boiler at TASCO, Nampa, is a BART-eligible
source subject-to-BART. Contrary to the commenter's claim, and as fully
described in the Federal Register notice, IDEQ did consider the 5-
factors in its BART determination for particulate matter, SO2 and NOx.
See 76 FR 1586-1589. After determining the available control
technologies, the five factors are: 1) Cost of compliance; 2) Energy
and non-air environmental impacts; 3) any pollution control equipment
in use at the source; 4) the remaining useful life of the facility; 5)
the degree of improvement in visibility which may reasonably be
anticipated to result from the use of such technology.
    Comment 2b: IDEQ solely relied on conservative modeling results and
excluded other relevant evidence resulting in an unreasonable BART
selection for TASCO's Riley Boiler.
    Response: While its not clear if TASCO is suggesting that EPA
should disapprove IDEQ's BART detemination on these grounds, we
disagree that IDEQ relied solely on conservative modeling results. Air
quality dispersion modeling was used by Idaho for two purposes: to
identify sources subject to BART and to estimate visibility improvement
resulting from implementation of technically feasible BART control
options. In the context of this comment, TASCO does not appear to
contest IDEQ's identification of sources subject to BART, but rather
the projection of improvement in visibility from implementation of
BART.
    To provide a consistent determination of baseline to future
conditions of source specific visibility impacts, Idaho correctly used
dispersion modeling. See 76 FR 1585 and EPA's evaluation of WRAP
modeling in EPA's WRAP TSD, Section 6.A. The model Idaho used is
consistent with BART Guidelines Appendix Y, (III)(3) which recommends
use of modeling for individual source attribution with the CALPUFF
model. See Appendix F, BART Modeling Protocol of the SIP submittal, (p.
30) for the application of the CALPUFF model.
    EPA approved the BART-subject Modeling Protocol that was used by
Idaho, Oregon and Washington in their determinations of which BART
eligible sources are subject to BART. EPA's evaluation of BART modeling
can be found in the WRAP TSD, Section 7 (p. 51) and Appendix F of the
Idaho Regional Haze SIP submittal, (p. F-30).
    Comment 2c: Evidence overlooked by IDEQ to support a more
reasonable outcome for TASCO BART: The Riley Boiler is located over 100
miles and in the opposite prevailing west to east wind direction from
Hells Canyon, Eagle Cap, and Strawberry Mountain Wilderness Areas.
    Response: Prevailing winds and distance do not necessarily
determine the maximum visibility impact of a specific source. Many
meteorological factors need to be considered in determining visibility
impact, thus the use of dispersion modeling for determining impact. See
40 CFR 51, Appendix Y (BART Guidelines, Section III and Section IV.D,
5.
    Dispersion modeling demonstrates maximum impact of TASCO Nampa
emissions are in the Eagle Cap Wilderness Area. Commenter has not
provided any additional information or evidence to refute that
determination.
    Comment 2d: The Riley Boiler is a small industrial boiler not
subject to the mandatory approach of Appendix Y BART Guidelines.
    Response: The commenter is correct that IDEQ was not required to
follow the EPA BART Guidelines at 40 CFR part 51, Appendix Y in making
its BART determination. However, as explained in the BART Guidelines,
the Guidelines establish an approach to implementing the BART
requirements in the Regional Haze Rule, and that EPA believes the
procedures in the guidelines should be useful to the States in all BART
determinations.
    Comment 2e: The Riley Boiler is the only sugar beet processing
factory subject to BART.
    Response: Whether or not the Riley Boiler is the only U.S. sugar
beet processing factory subject-to-BART is not relevant to the question
of whether IDEQ reasonably concluded that the boiler met the definition
of a BART-eligible source and that the boiler could reasonably be
anticipated to cause or contribute to any visibility impairment at a
Class I area. Fossil-fuel boilers of more than 250 MBtu/hr heat input
are potentially subject to BART, regardless of the type of industrial
facility at which they are located. As explained in the notice of
proposed rulemaking, IDEQ followed the BART evaluation process to
identify the BART-eligible sources within the state boundaries, and
determined, based on its modeled impacts, that TASCO could be
reasonably anticipated to contribute to visibility impairment at the
Eagle Cap Wilderness Area. 76 FR 1586.
    Comment 2f: TASCO states that the overall contribution of Idaho
stationary sources to visibility impairment from SO2 and NOx is small.
Most impairment in Idaho Class I areas originates from outside the
State. The commenter also notes that the Riley Boiler accounts for only
a very small fraction of SO2 and NOx emissions in Idaho.
    Response: By definition, regional haze means visibility impairment
that is caused by the emissions of air pollutants from numerous sources
located over a wide geographic area. 40 CFR 51.301. As a result, to
make reasonable progress towards the national goal, states may be
required to control emissions from sources that account individually
for only a small fraction of the total emissions contributing to
visibility impairment. As required by the CAA and EPA's regulations,
the state must undertake a BART determination for certain sources such
as TASCO that are reasonably anticipated to cause or contribute to any
visibility impairment. The percent contribution of a specific BART
eligible source to total Statewide or region-wide emissions is not a
factor in determining whether that source can be considered to
contribute to visibility impairment. See 40 CFR 51.308(e). To assess
whether the impact of a single source is sufficient to cause or
contribute to visibility impairment at any Class I area, Idaho selected
a contribution threshold of 0.5dv, the upper bound for such a
threshold. See 70 FR 39104, 39161 (July 6, 2005). Given this, IDEQ
determined that TASCO Nampa exceeded the 0.5dv threshold and therefore
correctly determined that the facility is subject-to-BART. The Riley
Boiler's relative percent contribution of SO2 and NOx emissions in
Idaho is not a factor in determining whether it is exempt from meeting
the BART obligations of 40 CFR 51.308(e).
    Comment 2g: By relying on conservative modeling results, IDEQ
failed to adjust its conclusions in light of TASCO's source
apportionment modeling that suggests the IDEQ

modeling greatly overestimates visibility impacts of the Riley boiler.
    Response: TASCO did not provide the TASCO source apportionment
modeling results referred to in its comments. Thus, EPA cannot evaluate
the credibility of the TASCO modeling, nor the significance of results.
    However, in EPA's view, Idaho appropriately used CALPUFF modeling,
as recommended by the BART Guidelines (Appendix Y of the Regional Haze
Rule) to determine visibility impacts from TASCO. The modeling was
conducted in accord with the BART Modeling Protocol, ``Modeling
Protocol for Washington, Oregon, and Idaho: Protocol for the
Application of the CALPUFF Modeling System Pursuant to the Best
Available Retrofit Technology (BART) Regulation.'' This protocol was
developed by Region 10 states and EPA Region 10 to provide consistency
in decision making across Idaho, Oregon, and Washington in assessing
the absolute and relative contribution of sources of visibility
impairment. By providing for consistent estimates, the use of CALPUFF
and specific modeling protocols ensures that sources are assessed
equitably across a region. See 76 FR 1586. See also response to comment
2.b. above.
    Comment 2.h: IDEQ failed to consider the shutdown of three coal-
fired pulp dryers at the Nampa facility in 2007.
    Response: Contrary to the comment, IDEQ did consider TASCO's
shutdown and replacement of three coal-fired pulp dryers in the
Regional Haze SIP submittal. However, the shut-down of other units at a
facility is not a consideration to be taken into account in a BART
determination. The BART determination for the Riley Boiler must be made
independent of other control activities at the TASCO Nampa facility or
other TASCO facilities located in Idaho.
    Idaho did account for the shutdown of the pulp dryers in their
assessment of baseline conditions at the Eagle Cap Wilderness Area.
Idaho used the CALPUFF model results and applied scenarios with both
the pulp dryers operating and not operating. See Table 10-11 of the SIP
Submittal which provides the visibility impact of three scenarios:
baseline with pulp dryers operating, baseline with pulp dryers
shutdown, and BART implementation for NOX and SO2
on the Riley Boiler.
    Shutdown of the pulp dryers resulted in a reduction in days over
0.5 dv over a three year period from 127 days to 97 days.
Implementation of NOX and SO2 BART reduced the
number of days over 0.5 dv to 3 days. Implementation of BART results in
a significantly greater improvement in visibility than just the
shutdown of the pulp dryers.
    Comment 2.i: IDEQ failed to consider the additional emission
reductions from TASCO's Nyssa, Oregon, shutdown in 2005.
    Response: TASCO Nyssa, Oregon facility is not located in Idaho and
not subject to Idaho's jurisdiction. Oregon has recognized the emission
reductions associated with the shutdown of the TASCO Nyssa facility in
their Regional Haze SIP. See Oregon Regional Haze SIP, Chapter 10.
    Comment 2.j. The comment states that the costs of compliance are
significant and could adversely affect operations at the Nampa
facility. Installation of BART will require $15 million capital and
annual operating expenses of over $644,000.
    Response: In the TASCO BART analysis in the SIP submittal, Appendix
F, the capital cost and annual costs for SO2 and
NOX level BART control were presented as follows from Table
31 and Table 35 of Appendix F and TASCO BART Determination, Appendix D:

----------------------------------------------------------------------------------------------------------------
                                                                                Cost
                                                            Capital cost       Annual costs      effectiveness
----------------------------------------------------------------------------------------------------------------
Dry FGD for SO2........................................        $12,970,000         $2,521,000         $2,163/ton
LNB/OFA for NOX........................................          4,875,000            860,000           1270/ton
                                                        --------------------------------------------------------
    Total BART Costs...................................         17,845,000          3,381,000  .................
----------------------------------------------------------------------------------------------------------------

    Idaho determined the cost effectiveness of all technically feasible
BART control options for SO2 and NOX based on
these capital investment and annual operating expenses. See Table 31
and Table 35 of Appendix F, TASCO BART determination, of the SIP
submittal. The final BART determination of Low NOX Burners
with Over Fire Air (LNB/OFA) for NOX at a cost of $1270/ton
is reasonable when compared to other BART determinations across the
country. The final BART determination of Dry Flue Gas De-sulfurization
(Dry FGD) for SO2 with a cost of $2163/ton is also
reasonable.
    The cost estimates in the SIP submittal differ (are higher) from
the cost estimates provided in TASCO's comment letter. As explained in
more detail below, while not required to do so, at IDEQ's request, EPA
conducted an evaluation of whether TASCO could afford the BART controls
and determined that it could afford the controls and remain a viable
entity. EPA's evaluation of whether TASCO could afford the BART level
control technology was based on the higher cost numbers in the SIP
submittal. The lower costs in the TASCO comment letter would suggest
TASCO could more readily afford the BART controls.
    Comment 2.k. The degree of visibility improvement anticipated from
BART is not measurable and does not justify the significant cost.
    Response: We disagree that the visibility improvement anticipated
from the use of BART at TASCO is not measurable. As explained in
response to Comment 2.g. above, Idaho used the recommended dispersion
model, CALPUFF, with a modeling protocol that was developed by EPA,
Region 10 and the States of Idaho, Oregon and Washington to determine
the improvements in visibility from the installation and operation of
BART control technology. That model demonstrates significant
improvement in visibility in the Eagle Cap Wilderness Area and other
Class I areas as a result of BART controls on the TASCO Nampa facility.
Implementation of Dry FGD for SO2 control will reduce the
number of days with impairment greater than 0.5 dv in the Eagle Cap
Wilderness Area from 97 to 51 days over a 3 year period (with the pulp
dryers shutdown). Implementation of LNB/OFA for NOX control
will reduce the number of days with impairment in the Eagle Cap
Wilderness Area from 97 to 56 days over a 3 year period (with the pulp
dryers shutdown). See Table 32 and Table 37, Appendix F of the Idaho
Regional Haze SIP submittal and 76 FR 1585. Combined SO2 and
NOX BART control will reduce the number of days over a 0.5
dv from 97 to 3 days over a 3 year period (with the pulp dryers
shutdown). See Table 38 of Appendix F for the Idaho Regional Haze SIP
submittal. As explained in response to Comment 2.j. above regarding
costs of compliance, the cost associated with installation and
operation of BART at TASCO Nampa, are not excessive and are comparable
to the costs for other BART determinations across the country.

    Comment 3: TASCO comments that IDEQ's approach to the BART
determination for the Monsanto/P4 facility confirms the flexibility,
discretion and streamlining that states are afforded in the BART
process. The comment points out that the BART-subject kiln at the
Monsanto/P4 facility is a significantly larger emission source than
TASCO's Riley Boiler and has greater visibility impacts, but that IDEQ
determined and EPA proposed to approve a BART determination for
Monsanto/P4 that is less rigorous and costly than TASCO's. The comment
further states that the BART determination that EPA proposed to approve
for Monsanto/P4 allows a significant increase in potentially visibility
impairing NOX emissions while EPA also proposed to approve a
BART determination for TASCO that reduces emissions overall. The
comment also contrasted the visibility improvement days predicted to
result from the BART controls at TASCO Nampa facility versus the less
number of visibility improvement days predicted to result from the
required emission controls at Monsanto/P4 facility.
    Response: EPA does not view TASCO's comment as supporting more
stringent regulation of Monsanto/P4, but rather as presenting an
argument that it should not be required to install BART controls that
achieve tighter limits or greater improvements in visibility than other
BART facilities in Idaho. EPA disagrees that IDEQ should impose BART
controls at TASCO based on the results of its BART determination at
another facility. A BART determination is made on a case-by-case basis,
which by definition is based on facility-specific considerations.
    EPA disagrees that IDEQ provided flexibility to Monsanto/P4 in the
BART determination for the Rotary Kiln that was not provided TASCO. Due
to the nature of the process at Monsanto/P4 (i.e. limited temperature
range) and existing control technology for SO2 and PM, no
technically feasible control technology is available. Thus, BART for
the Rotary Kiln is `no additional control' and no emission limitations
were established in the Idaho issued operating permit. In contrast, the
TASCO Riley Boiler is a traditional coal-fired industrial boiler and
technically feasible control options exist and are cost-effective.
    EPA does not understand TASCO's comment that there would be the
potential for a 2198 t/yr increase in NOX emissions from the
Rotary Kiln based on the Monsanto/P4 BART determination. Since no
additional control was determined to be BART, there is no potential to
increase emissions since the existing emission limitations and design
parameters at the facility will limit the production of sintered
phosphate ore and limit NOX emissions to these production
levels.
    4. Comment: TASCO stated that EPA's review of the costs of
compliance and affordability of BART controls for the Riley Boiler was
flawed:
    Comment 4.a. TASCO comments that ``EPA concluded that since the
company could fund the significant expense, the selected BART controls
were affordable and indicates that because the EPA focused on the
company's ``financial status and health,'' as well as whether the
company could afford the controls and ``remain viable'', EPA applied an
inappropriate and arbitrary standard of review under EPA's BART
regulations and guidance. TASCO also states that ``EPA observed in its
analysis, for example, that TASCO failed to be proactive and set aside
funding for BART. EPA commented that TASCO should have been aware that
``a decision not to proactively address BART costs prior to the
issuance of a permit could make funding the BART related costs
difficult.'' TASCO also commented that EPA placed `substantial weight'
on the statements of TASCO's auditors that EPA's interpretation
misconstrued the Auditor's report and ``EPA conveniently relied upon
the auditor's silence regarding the BART issues to support their flawed
conclusion.''
    Response: The EPA BART guidelines, specifically allow, but do not
require, affordability to be considered when determining BART. 70 FR
3917. The BART Guidelines indicate that there may be unusual
circumstances that justify consideration of the plant and economic
effects of requiring the use of a given control technology. The
Guidelines suggest that economic effects include the effect on product
prices, market shares and profitability of the source and that where
there are special circumstances that are determined to affect plant
operations, conditions of the plant and economic impacts of requiring
controls may be considered. Id. The guidelines do not require that a
specific method be used to conduct an affordability analysis nor do
they specify a specific standard of review.
    Thus, when making a BART determination the State may take into
account the economic effects of requiring a particular control
technology and may consider any resulting economic effects that are
determined to have a severe impact on the plant's or company's
operations. In this case, TASCO indicated to IDEQ that affordability
was a critical element in the BART determination and IDEQ subsequently
requested EPA to conduct an affordability analysis.
    After considering a variety of factors, EPA determined that TASCO
could afford to fund the BART controls and explained its reasoning in a
separate report that was provided to IDEQ. See Executive Summary (Exec.
Sum.) of the Affordability Analysis of the Amalgamated Sugar Company
LLC's Affordability Claim with Respect to the Best Available Retrofit
Technology (BART) for the Riley Boiler at the NAMPA, Idaho facility,
February 12, 2010. (Affordability Analysis) (The Executive Summary,
included in Docket for this rulemaking, is available to the public but
the Affordability Analysis itself contains information claimed as
Confidential Business Information and is not available for public
review.) \3\
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    \3\ The BART Guidelines specifically recognize that an
affordability review must preserve the confidential nature of
sensitive business information. 70 FR 39171.
---------------------------------------------------------------------------

    Regarding TASCO's concerns about EPA's statement that TASCO should
have been aware that ``a decision not to proactively address BART costs
prior to the issuance of a permit could make funding the BART related
costs difficult'', TASCO appears to have taken EPA's statements out of
context. The discussion in EPA's Affordability Analysis about how TASCO
appears to have handled its finances as it relates to any prospective
funding of BART was historical in context. EPA is aware that TASCO had
no financial or legal obligation to fund the BART costs prior to
issuance of a permit and/or SIP by IDEQ, or a FIP by EPA, as indicated
in the Executive Summary (See Affordability Analysis, p.2). Since this
issue was historical in context, it provided background for, but did
not form a basis to determining whether TASCO could afford paying for
BART.
    TASCO is correct in stating ``EPA placed `substantial weight' on
the statements of TASCO's auditors.'' (Affordability Analysis, pp. 37-
38). As explained in the Affordability Analysis, EPA recognized that
the auditor should have considerable knowledge of TASCO's operations;
TASCO, Snake River Sugar Company (SRSC) and grower's relationships;
external conditions that could impact TASCO; BART cost estimates and
TASCO's ability to continue as a going concern, and felt that the
auditor would be well informed about the companies' financial
condition. Affordability Analysis pp. 32-28. However, as is evident
throughout the Affordability Analysis,

the auditor's statements are but one piece of the information EPA
considered in its affordability analysis. See Affordability Analysis
Exec. Sum. P.2; and Part II.
    Furthermore, a reading of Part 2, Section F in the Affordability
Analysis in its entirety demonstrates that EPA did not rely on the
auditor's silence regarding the specific BART costs to support the
conclusion that TASCO could afford the BART controls, but rather
identified specific audit related issues that in the first instance
could be relevant in determining whether TASCO could, or could not
afford the BART related costs. These audit related issues included: the
entity continuing as a going concern; subsequent events as they relate
to an audit; and the type of opinion (and its contents) expressed by
the auditor. (Affordability Analysis, pp. 35-37) The Affordability
Analysis demonstrates that EPA was cognizant of the possible
implications regarding whether certain issues were, or were not
explicitly addressed by the auditor in the company's audited financial
statements. As the Affordability Analysis explains, ``In addition, even
where the audited financial statements and auditor's report do not
provide explicit confirmation of the entity's claims, understanding why
these issues are absent from the auditor's report and financial
statements can also provide important insight with respect to analyzing
the entity's claims.'' (Affordability Analysis p.32)
    Comment 4.b. TASCO comments that EPA ignored information from
TASCO. More specifically, TASCO states ``The effects that this
expenditure would have on `profitability', `market share', `plant
operations' and position relative to `competing plants' are clearly
fundamental to the evaluation. EPA ignored information from TASCO on
the unusual circumstances within the sugar beet industry and the
effects on the Nampa plant operations and costs, including its ability
to compete in the U.S. sugar market.'' TASCO further states that to the
extent TASCO's circumstances were considered, EPA's analysis considered
the overall economics of TASCO, the company and its related entities,
not the conditions at the Nampa facility or the economic effects of
requiring controls there. The direct effects on TASCO's Nampa plant
operations were underestimated or ignored by EPA. TASCO also comments
that EPA dismissed the localized effects on the specific plant
operations at Nampa and instead focused on an assessment of the TASCO
business structure.
    In commenter's view, EPA's notion of spreading cost throughout the
Idaho sugar beet farmers is flawed and defies the realities of the
sugar beet industry and TASCO's operations and underestimates the
extent of the adverse impacts [of the BART determination]. TASCO states
that reduced payments to growers in order to fund BART controls at
Nampa will result in decreased acreage planted in sugar beets
throughout Idaho. EPA unrealistically assumed that growers will
continue to plant sugar beets, and ignored the declining trend in
acreage planted in sugar beets.''
    Referring to EPA's affordability analysis, TASCO commented that EPA
failed to consider whether competing plants in the same industry are
required to install BART controls and asserts that they know of no
other plant in the sugar industry in the US that is required to install
BART control and ignores information from TASCO about the uniqueness of
imposing BART on a small industrial boiler relative to competing plants
in the sugar beet industry.
    Finally, TASCO described the closure of TASCO's Nyssa factory ``as
evidence of the vulnerability and actual impact of plant operations
from diminished sugar beet acreage. TASCO also highlighted the 31%
decline in sugar beet harvest between 2007 and 2008 and EPA downplayed
these plant specific impacts, and emphasized other information to
conclude that TASCO, the company, is economically stable.''
    Response: In determining whether TASCO could afford the BART level
controls, EPA considered a variety of information, including but not
limited to information provided by TASCO. As explained in the Executive
Summary, the analysis considered a number of factors including the
estimated capital and operation and maintenance costs, the estimated
BART compliance date, TASCO's ability to continue as a viable company,
the business/financial relationship between TASCO and the Snake River
Sugar Company (SRSC) and other factors. The analysis specifically
included information provided by TASCO. (Exec. Sum. p. 2)
    EPA encouraged TASCO to provide any additional substantive
information to substantiate its claims regarding affordability.
However, TASCO never provided specific documentation or information
that substantively demonstrated how the BART costs would adversely
impact the Nampa facility specifically or that substantively supported
their affordability claim. For example, the company failed to provide
information regarding the minimum annual input of sugar beets needed
for each facility or how BART related costs would specifically impact
the number of growers. The Analysis explained that ``based on the
available information, it appeared that TASCO's conclusion that less
growers necessarily equals less revenue is not supported.''
Affordability Analysis p. 25-26. The comments also failed to provide
substantiated information regarding these items. Additionally, as
mentioned in the Affordability Analysis, when making its initial
affordability claim TASCO stated that ``[a] very large consideration of
this [BART determination] analysis is the ongoing viability of the
Nampa facility and TASCO as a whole.'' (Affordability Analysis p. 15)
Thus, TASCO itself recognized the economic status of the company as a
whole was relevant.
    TASCO's comment also expressed concern with EPA's observation that
TASCO could spread the cost of controls among sugar beet growers
throughout Idaho. The comment stated that EPA unrealistically assumed
that growers will continue to plant sugar beets, and ignored the
declining trend in acreage planted in sugar beets. However the comment
fails to substantiate its claims that reduced payments to growers would
necessarily result in decreased acreage planted in sugar beets in Idaho
or to refute EPA's assumptions. The Affordability Analysis indicated
EPA's perspective on this issue and explained that a sugar beet grower
faces a number of choices in deciding whether or not to grow sugar
beets. EPA considered how charging the capital cost for BART controls
to the growers could affect their decision to continue growing sugar
beets. But, as explained, EPA cannot make any determination as to
whether any capital cost charged to a grower will determine whether
that grower decides not to grow sugar beets (e.g., move from sugar
beets to an alternative crop). EPA also refers to the Patterson study
(2009) which compared sugar beets, at different price and yield levels,
to alternative crops. Affordability Analysis, p. 27. Furthermore, the
analysis also recognized that an additional factor a grower must take
into consideration in deciding not to grow sugar beets is that ``member
grower who decides not to grow, i.e., to withdraw from the Cooperative
(SRSC), would face a significant monetary charge from SRSC.'' Id.
Another implication is that the grower has crop alternatives though
these other crops may not provide a long-term solution. Id. As part of
its review EPA explained that ``An analysis of the economics of growing
sugar beets in southern Idaho, released in January

2009, provides important insight into recent sugar beet prices paid to
growers:

    Sugar beet prices in recent years have been relatively stagnant,
while input costs have increased. Sugar beet prices over the past
ten years averaged approximately $39.60 per ton, ranging from a high
of just over $44 to a low of just over $36 according to data from
the USDA. A similar situation also existed for most other
commodities grown in southern Idaho, with no crop having a
consistent economic advantage. But when grain and forage prices
spiked to unprecedented levels in 2007, the equilibrium was
eliminated and growers saw an opportunity to capitalize on the high
returns that these crops offered. Crops that were often viewed as
money losing rotation crops by potato and sugar beet growers had
become the most profitable crop alternatives available to growers.
But high grain prices were short-lived with grain prices declining
rapidly after the 2008 harvest. Affordability Analysis p. 22-23.
    Regarding TASCO's comment about the closure of the TASCO Nyssa,
Oregon plant, in conducting the Affordability Analysis EPA considered
and weighed all information it had available in coming to its
conclusion. If it appears that EPA downplayed certain impacts, it is
because there was additional substantive information as summarized
above and described throughout its analysis that provided the basis for
EPA's affordability conclusion, and TASCO did not provide substantive
information to support its assertions. For example, with respect to
TASCO's comment regarding the closing of the Nyssa factory: TASCO
stated that ``the economic benefit to the grower-owned Cooperative of
running three factories compared to four is significant and cannot be
ignored.'' (Affordability Analysis p. 27.) TASCO did not provide plant
specific substantive information that would enable EPA to validate
TASCO's stated concerns about BART impacts to the Nampa factory and the
other two factories, and to the growers, e.g., plant capacities, plant
operating margins, etc.
    Comment 4.c.: TASCO commented that the estimated cost of compliance
will exceed $75,000 per grower that supplies sugar beets to the Nampa
factory, based upon an estimated capital cost of $15,690,000. TASCO
stated that this amount exceeds the estimated annual profit per grower
which is conservatively $65,400.
    Response: There are several parts to TASCO's comment. First, TASCO
indicates that the $75,000 BART related cost per grower is charged to
the Nampa growers as a one-time charge. However, when as part of its
analysis EPA calculated BART capital costs to the growers (Nampa only
growers, and to all growers), EPA amortized these costs over two
different time periods based on information provided by TASCO. See
Affordability Analysis p. 26; Table 6, p. 29; p. 36. Second, TASCO's
most recent capital cost estimate ($15,690,000) is $2.11 million less
than the capital cost EPA used for the Affordability Analysis ($17.8
million) which was based on TASCO's BART Analysis. See Regional Haze
SIP submission, Appendix F, Table 31 and Table 35. Furthermore, the
number of growers for the Nampa factory and in total--(see TASCO
comments, footnote 8) are greater than those used in the Affordability
Analysis. See TASCO comment footnote 8 compared to Affordability
Analysis Table 6, p. 29. Mathematically this would indicate that any
new calculations made using this latest information would mean lower
BART related charges passed on to each grower. Third, as explained in
EPA's analysis, allocating the BART capital costs only to the Nampa
factory growers and not to all the growers is a business decision made
by TASCO. Affordability Analysis p. 26. Using the TASCO figures
provided in the comment, calculated for the two amortization periods of
six years or nine years, the amortized BART capital cost to all growers
would amount to less than $0.45 per ton of sugar beets or less than
$0.30 per ton of sugar beets, respectively, and if the cost was the
allocated only to the Nampa growers it would be approximately $1.75 and
$1.17 respectively--amounts less than the figures indicated in EPA's
original analysis. See Affordability Analysis Table 6.
    Comment 4.d: EPA failed to consider whether competing plants in the
same industry are required to install BART controls and asserts that
they know of no other plant in the sugar industry that is required to
install BART controls and ignores information from TASCO about the
uniqueness of imposing BART on a small industrial boiler relative to
competing plants in the sugar beet industry.
    Response: The BART Guidelines provide that an affordability
analysis may consider whether other competing plants in the same
industry have been required to install BART controls. 70 FR 39171.
However, in this instance EPA's analysis determined that regardless of
the number of other facilities in this industry subject to BART, the
cost for TASCO to implement the controls determined to be BART are
affordable and would not significantly impact its continued economic
viability. Additionally, as explained above, TASCO did not provide or
substantiate its claims to demonstrate that it would operate at a
competitive disadvantage and thus, EPA was not able to determine the
relative competiveness between TASCO and other sugar beet processors.
    Comment 5: TASCO's comment letter to EPA included statements
regarding the additional information it has outlined for IDEQ in the
negotiations with the State to resolve the Tier II operating permit
challenge.
    Response: This comment relates to the pending negotiations between
TASCO and the State. At this point in time EPA does not know how IDEQ
will evaluate or use the additional information provided to it. If the
State revises the TASCO operating permit and submits it to EPA, at that
time EPA will evaluate IDEQ's decision and the information upon which
it is based.

Wyoming Outdoor Council Comments

    Comment 1: The commenter requests that a BART determination be
conducted and BART emission limitations be imposed for two additional
sources in Idaho: Nu West/Agrium facility (Nu West) in Soda Springs and
the J.R. Simplot Don Plant (J.R. Simplot) in Pocatello. The commenter
asserts that given that the Nu West and J.R. Simplot plants are
directly upwind and in close proximity to Wyoming Class I areas, it
seems clear they should merit special attention through a requirement
for the installation of BART. The data developed by the State of
Wyoming for its draft Regional Haze SIP also make it clear that Idaho
sources of air pollution are one of the most significant contributors
to visibility impairing haze in Wyoming Class I areas. The commenter
also suggests the 0.5 dv impact threshold used to determine whether a
BART eligible source is subject to BART, was determined for only Class
I areas located in Idaho. The comment then suggests concern that all
seven Wyoming Class I areas, and especially the Bridger and Fitzpatrick
Wilderness Areas, are directly downwind of these plants (Nu West and
J.R. Simplot), and in quite close proximity to them. Thus, absent
empirical data to the contrary, there should be no finding that the
J.R. Simplot and Nu West plants are not significantly impacting Wyoming
Class I areas.
    Response: In determining which BART eligible sources would be
subject to BART, Idaho considered all Class I areas within a 300 km
radius of the source, including Class I areas outside the State
boundary. Air quality dispersion modeling is the preferred technique to
determine a single source's impact on any Class I area. See BART
Guidelines, Section I.A. As discussed

above, the modeling completed by Idaho demonstrates that BART-eligible
sources located in Idaho, other than those identified in the SIP
submittal as exceeding the BART contribution threshold, do not
significantly impact Class I areas within a 300 km radius of the
source, including Class I areas in Wyoming and Montana. Furthermore,
IDEQ consulted with Wyoming (Wyoming Department of Environmental
Quality) and other neighboring states regarding its emission reduction
contribution. This consultation included the review of major
contributing sources of air pollution, interstate transport of
emissions, major emission sources believed to be contributing to
visibility impairment, and whether any mitigation measures were needed.
See Chapter 13.2.1 of the Idaho Regional Haze SIP submittal.
    As explained in the Idaho Regional Haze SIP submission, Idaho
considered whether these two BART eligible sources were subject-to-
BART. See Regional Haze SIP submittal Appendix F, Table 3 for a
discussion of the Nu West modeling to determine whether it met the
threshold for being subject to BART. The modeling shows the impact of
Nu West in Class I areas within a 300 km radius, including the Bridger
and Fitzpatrick Wilderness Areas. The SIP submittal explains that over
a three year period (2003-2005) there were no days where Nu West had an
impact of greater than 0.5 dv, the Idaho threshold for sources being
subject to BART. The greatest impact occurred in the Bridger Wilderness
Area with a value of 0.051 dv, or approximately \1/10\ the level of the
`BART subject' threshold.
    A discussion of the J.R. Simplot modeling to determine whether it
met the threshold for being subject to BART can be found in the SIP
submittal, Appendix F, Table 11 (page 198 of Appendix F of the SIP
submittal). The modeling shows the impact of J.R. Simplot in Class I
areas within a 300 km radius of the plant, including the Fitzpatrick
Wilderness Area. Over a three year period (2003-2005) there were no
days where J.R. Simplot had an impact of greater than 0.5 dv in the
Fitzpatrick Wilderness Area.
    The modeling showed that neither facility met the 0.5 dv
contribution threshold. Therefore, IDEQ reasonably determined that
neither Nu West nor J.R. Simplot were subject to BART. As explained in
the proposed rulemaking EPA agreed with the State's determination in
this regard.
    Comment 2: The commenter believes that Region 10 should make good
on its finding that the 0.5 dv threshold is not adequate to avoid the
requirement for BART to be installed because there is likely no
objective basis to claim that the J.R. Simplot and Nu West plants have
``relatively limited impact on visibility'' when it comes to Wyoming
Class areas. If the greatest improvements due to BART being required on
the Monsanto/P4 Plant are seen at the Teton Wilderness Area, it seems
very likely that even greater benefits would be seen at the Bridger and
Fitzpatrick Wilderness Areas if BART were required for the J.R. Simplot
and Nu West plants. Consequently BART should be required for these
sources of emissions.
    Response: As explained above, the methods and process IDEQ used to
determine that 0.5dv is an appropriate threshold to use to determine if
an individual source is subject to BART are consistent with the
Regional Haze Rule. For the reasons explained in the Federal Register
notice describing the rationale for the proposed action, while Idaho
failed to provide an adequate rationale for selecting the 0.5 dv
threshold for determining BART eligible sources subject to BART, EPA
determined that even with a more robust rationale the 0.5 dv threshold
was acceptable. 76 FR 1585. Additionally, in reviewing the modeling
results for Nu West and J.R. Simplot for determining whether they are
subject to BART, it is apparent that Idaho would had to have
established a threshold below 0.1 dv in order to include these
additional sources subject to BART. A 1.0 dv change in visibility is
usually a small but perceptible scenic change. (See Interagency
Monitoring of Protected Visual Environments (IMPROVE) newsletter, Vol.
2 No. 1, Winter 1993). In EPA's view, generally a 0.1 dv threshold is
unreasonable because the human eye could not perceive this change in
visibility impairment and yet would require significant expenditure of
resources to implement BART.
    The Wyoming Regional Haze SIP submittal that was submitted to EPA
Region 8 does not identify any sources in Idaho that significantly
impact Class I areas in Wyoming. In developing the Reasonable Progress
Goals for Class I areas in Wyoming, the Wyoming SIP relies on the
consultation process in the WRAP for establishing emission reductions
from sources located in Idaho. See Chapter 11.1 page 184 of the Wyoming
SIP submittal.

III. Final Action

    EPA is approving the BART measures in the Idaho Regional Haze plan
as meeting the requirements of section 110(a)(2)(D)(i)(II) of the CAA
with respect to the 1997 8-hour ozone and 1997 PM2.5 NAAQS.
In addition, EPA is approving portions of the Idaho Regional Haze SIP,
submitted on October 25, 2010, as meeting the requirements set forth in
section 169A of the Act and in 40 CFR 51.308(e) regarding BART. EPA is
also approving the Idaho submittal as meeting the requirements of
51.308(d)(2) and (4)(v) regarding the calculation of baseline and
natural conditions for Craters of the Moon National Monument, Sawtooth
Wilderness Area, and Selway-Bitterroot Wilderness Area, and the
statewide inventory of emissions of pollutants that are reasonably
anticipated to cause or contribute to visibility impairment in any
mandatory Class I Federal Area.

IV. Scope of Action

    Idaho has not demonstrated authority to implement and enforce IDAPA
chapter 58 within ``Indian Country'' as defined in 18 U.S.C. 1151.\4\
Therefore, EPA proposes that this SIP approval not extend to ``Indian
Country'' in Idaho. See CAA sections 110(a)(2)(A) (SIP shall include
enforceable emission limits), 110(a)(2)(E)(i) (State must have adequate
authority under State law to carry out SIP), and 172(c)(6)
(nonattainment SIPs shall include enforceable emission limits). This is
consistent with EPA's previous approval of Idaho's prevention of
significant deterioration (PSD) program, in which EPA specifically
disapproved the program for sources within Indian Reservations in Idaho
because the State had not shown it had authority to regulate such
sources. See 40 CFR 52.683(b). It is also consistent with EPA's
approval of Idaho's title V air operating permits program. See 61 FR
64622, 64623 (December 6, 1996) (interim approval does not extend to
Indian Country); 66 FR 50574, 50575 (October 4, 2001) (full approval
does not extend to Indian Country).
---------------------------------------------------------------------------

    \4\ ``Indian country'' is defined under 18 U.S.C. 1151 as: (1)
All land within the limits of any Indian reservation under the
jurisdiction of the United States Government, notwithstanding the
issuance of any patent, and including rights-of-way running through
the reservation, (2) all dependent Indian communities within the
borders of the United States, whether within the original or
subsequently acquired territory thereof, and whether within or
without the limits of a State, and (3) all Indian allotments, the
Indian titles to which have not been extinguished, including rights-
of-way running through the same. Under this definition, EPA treats
as reservations trust lands validly set aside for the use of a Tribe
even if the trust lands have not been formally designated as a
reservation. In Idaho, Indian country includes, but is not limited
to, the Coeur d'Alene Reservation, the Duck Valley Reservation, the
Reservation of the Kootenai Tribe, the Fort Hall Indian Reservation,
and the Nez Perce Reservation as described in the 1863 Nez Perce
Treaty.

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V. Statutory and Executive Orders Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule approves pre-existing requirements under state law and does
not impose any additional enforceable duty beyond that required by
state law, it does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4).
    In addition, this rule does not have Tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the rule neither imposes substantial direct compliance costs on
Tribal governments, nor preempts Tribal law. Therefore, the
requirements of section 5(b) and 5(c) of the Executive Order do not
apply to this rule. Consistent with EPA policy, EPA nonetheless
provided a consultation opportunity to Tribes in Idaho, Oregon and
Washington in letters dated January 14, 2011. EPA received one request
for consultation, and we have followed-up with that Tribe. This action
also does not have Federalism implications because it does 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 (64 FR 43255, August 10, 1999). This
action merely approves a state rule implementing a Federal standard,
and does not alter the relationship or the distribution of power and
responsibilities established in the CAA. This rule also is not subject
to Executive Order 13045 ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), because
it approves a state rule implementing a Federal standard.
    In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the CAA. In this
context, in the absence of a prior existing requirement for the State
to use voluntary consensus standards (VCS), EPA has no authority to
disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the CAA. Thus, the requirements of section
12(d) of the National Technology Transfer and Advancement Act of 1995
(15 U.S.C. 272 note) do not apply. This rule does not impose an
information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by August 22, 2011. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review nor does
it extend the time within which a petition for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

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

    Dated: June 13, 2011.
Dennis J. McLerran,
Regional Administrator, Region 10.
    Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:

PART 52--[AMENDED]

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

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

Subpart N--Idaho

0
2. Section 52.670 is amended as follows:
0
a. In paragraph (d) by adding two entries to the end of the table.
0
b. In paragraph (e) by adding an entry to the end of the table.

Sec.  52.670  Identification of plan.

* * * * *
    (d) * * *

                              EPA-Approved Idaho Source-Specific Requirements[sup1]
----------------------------------------------------------------------------------------------------------------
                                                   State effective
         Name of source            Permit No.           date          EPA approval date        Explanation
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
The Amalgamated Sugar Company      T2-2009.0105  09/07/10 (date      06/22/11 [Insert    The following
 LLC--Nampa Factory, Nampa,                       issued).            page number where   conditions: 1.2
 Idaho.                                                               the document        (including table), 3
                                                                      begins].            (heading only), 3.1,
                                                                                3.2, 3.3, 3.4
                                                                                (including table),
                                                                                3.6, 3.7, 3.8, 3.9,
                                                                                3.10, 3.11, 3.12,
                                                                                3.13, 3.15, 3.16, and
                                                                                3.17. (Regional Haze
                                                                                SIP revision).

P4 Production, L.L.C. , Soda       T2-2009.0109  11/17/2009 (date    06/22/11 [Insert    The following
 Springs, Idaho.                                  issued).            page number where   conditions: 1.2
                                                                      the document        (including Table 1.1),
                                                                      begins].            2.3, 2.4, 2.5, 2.6,
                                                                                2.7, and 2.8.
                                                                                (Regional Haze SIP
                                                                                Revision).
----------------------------------------------------------------------------------------------------------------
\1\ EPA does not have the authority to remove these source-specific requirements in the absence of a
  demonstration that their removal would not interfere with attainment or maintenance of the NAAQS, violate any
  prevention of significant deterioration increment or result in visibility impairment. Idaho Department of
  Environmental Quality may request removal by submitting such a demonstration to EPA as a SIP revision.

* * * * *
    (e) * * *

                    EPA-Approved Idaho Nonregulatory Provisions and Quasi-Regulatory Measures
----------------------------------------------------------------------------------------------------------------
                                 Applicable geographic       State
     Name of SIP provision       or nonattainment area  submittal date  EPA approval date         Comments
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
Regional Haze SIP Revision....  State-wide............        10/25/10  06/22/11 [Insert   The portion of the
                                                                         page number        Regional Haze SIP
                                                                         where the          revision relating to
                                                                         document begins].  BART, the
                                                                                calculation of
                                                                                baseline and natural
                                                                                conditions, and the
                                                                                statewide inventory
                                                                                of emissions of
                                                                                pollutants that are
                                                                                reasonably
                                                                                anticipated to cause
                                                                                or contribute to
                                                                                visibility
                                                                                impairment in any
                                                                                mandatory Class I
                                                                                Federal Area.
----------------------------------------------------------------------------------------------------------------

0
3. Section 52.672 is amended by adding paragraph (g) to read as
follows:

Sec.  52.672  Approval of plans.

* * * * *
    (g) Visibility protection. (1) EPA approves portions of a Regional
Haze SIP revision submitted by the Idaho Department of Environmental
Quality on October 25, 2010, as meeting the requirements of Clean Air
Act section 169A and 40 CFR 51.308(e) regarding Best Available Retrofit
Technology. The SIP revision also meets the requirements of 40 CFR
51.308(d)(2) and (4)(v) regarding the calculation of baseline and
natural conditions for Craters of the Moon National Monument, Sawtooth
Wilderness Area, and Selway-Bitterroot Wilderness Area and the
statewide inventory of emissions of pollutants that are reasonably
anticipated to cause or contribute to visibility impairment in any
mandatory Class I Federal Area. The SIP revision also meets the
requirements of Clean Air Act section 110(a)(2)(D)(i)(II) as it applies
to visibility for the 1997 8-hour ozone NAAQS and 1997 PM2.5 NAAQS.
    (2) [Reserved]

[FR Doc. 2011-15452 Filed 6-21-11; 8:45 am]
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